The emergency nature of the Coronavirus outbreak remains in a state of flux. New information, protocols and recommendations from the Center for Disease Control (CDC) are being provided. Dr. Anthony Fauci continues to reiterate on Sunday morning news shows “things will get worse before they get better.” In an effort to shock some sense into college students on Spring break, the United States Surgeon General Dr. Jerome Adams warned “I want America to understand this week, it’s going to get bad.” The disease is spreading, he said, because many people – especially young people – are not abiding by guidance to stay at home and practice social distancing. Dr. Adams was very clear this morning to the American people when he said “We’re not going to ventilator our way out of this problem. We’re not going to treat our way out of this problem. The way you stop the spread of an infectious disease like this is with mitigation measures and preventing people from getting it in the first place.”
So, what does this mean in practical terms for your community association? Can the Board suspend meetings altogether and hold unnoticed board meetings? Can the Board temporarily limit or prohibit guest access to single-family communities, multi-family dwelling units or condominium buildings? Should the number of passengers riding in an elevator at one time be limited? What about those homeowners who are now demanding that landscapers stop entering their property to maintain lawns? Should the Board shut down all common areas, including the pool area, which seems to be a popular place for everyone to go right now because they are home and there is no rain in the forecast this week?
At the risk of repeating the obvious, these are unprecedented times leading to unprecedented questions, and requiring unprecedented measures. First and foremost, the residents of your community are looking to the Board for leadership much as we are looking to Washington D.C. and Tallahassee for leadership. This means all actions your Board takes should be measured and tailored to respond to the crisis.
We do not believe this type of crisis warrants holding meetings without notice to your members until such time as quarantine restrictions prevent the posting of physical notices of meetings, if at all. Physical posting and electric notice of meetings should continue, and then electronic notice if physical posting is no longer possible. We believe that community association boards should discourage gatherings of their members in a room to conduct association business. We believe any decisions that can be delayed without resulting in an interruption in the business operation of your association should be delayed until such time as the matter becomes critical to the uninterrupted operation of your association. If you are a small community and can conduct meetings that will not exceed the 10 people or more limitation on social gatherings and keep sufficient distance between residents, then membership attendance at meetings can continue. For larger communities, you are already at the point of reevaluating your agendas and scheduled meetings over the next two months and must plan accordingly. We recommend all associations, regardless of size, implement the use of free conference line services, and other online meeting facilitation platforms to avoid in person membership participation at meetings. This may mean that members will not be able to speak at meetings. So, again, we recommend you limit agenda items to essential business to avoid an interruption in association operations.
For those communities that have not held their annual meetings, we believe it is appropriate to postpone those annual meetings for so long as Governor DeSantis maintains the State of Emergency. The Governor has to revisit whether to extend the State of Emergency by May 9, 2020. Hopefully, the Division of Florida Condominiums, Timeshares, and Mobile Homes will issue a guidance letter on whether communities that have suspended their election process will need to re-notice the entire election or whether the annual meeting date will simply need to be re-noticed without opening up the time frame for candidates to submit notices of intent to run if the deadline to submit notice had already passed as of the date your community’s annual meeting was temporarily suspended.
In terms of limiting guest access to your community, several factors should be considered, and the actions taken by your community should be tailored to meet the emergency. Condominium buildings, where the proximity of living is much closer together than single family home neighborhoods, should consider and balance the rights of the owners to have guests and invitees, utilize the common element lobbies, hallways and other areas for ingress and egress purposes against protecting the overall safety, sanitation, and health of the condominium building and its residents. For condominium associations where access to a unit is through a common lobby or entrance, it may be reasonable for the Board of Directors to limit the number of visitors an owner or tenant may have at any one time to a reasonable number. In buildings, the number of people in elevators at one time should be limited. Other high-risk areas should be identified and temporarily closed, such as fitness centers, restrooms, indoor and outdoor dining areas, card rooms, and possibly the entire Clubhouse.
The Board may also wish to consider closing the common area pool if residents are gathering in large enough numbers despite all of the federal, state and local warnings not to do so. In the alternative, you may wish to temporarily remove all pool furniture from the pool deck to limit the spread of COVID-19, which appears to survive on metal surfaces the longest. Likewise, the association may consider that use of the pool be restricted to owners and residents. This would reduce the number of people at the pool and limit exposure. If your vendors are still providing exterior grounds maintenance services, then if people are indoors it would seem the risk to them is minimal. Each community board has to decide these issues as best they can baring in mind the Board’s duty set forth in Section 617.0803, Florida Statutes, which provides:
(1) A director shall discharge his or her duties as a director, including his or her duties as a member of a committee:
(a) In good faith;
(b) With the care an ordinarily prudent person in a like position would exercise under similar circumstances; and
(c) In a manner he or she reasonably believes to be in the best interests of the corporation.
These are stressful times for everyone and questions of first-impression will continue to arise in the next several weeks or months. When in doubt, contact your association’s legal counsel to assist your board of directors navigate your community’s specific issues. Most importantly, show your residents that the Board is ready to meet this challenge.
by Steven R. Braten, Shareholder & Paula S. Marra, Senior Associate, Rosenbaum PLLC