Dangers of Security

The December Issue Includes:

Dangers of Association's Purporting to Provide Security
About Those Entrance Security Cameras
Cast Your Vote for C&M!
Annual Corporate Reports Coming Up! We Make Your Life Easier!
What is a Registered Agent?
Presenting the 2021 Free Webinars!
No More Peacocks...No More Snakes!
CM On Demand Board Certification Classes
Oh, What A Night Added to CM On Demand
Special Note
CM Holiday Schedule
C&M Social Media - Follow Us!
About The Green Marble
Valued Business Partners

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The Danger of Association’s Purporting to Provide Security

by Founding & Senior Partner, Neal McCulloh

Countless communities within the State of Florida have private roads and are gated. This often leads to the owners, the residents, the association and, in fact, the directors believing that the association is actively providing “security”. Unfortunately, all too often, the association is only providing gate access “control”. WHY IS THIS IMPORTANT? Please appreciate that if the association purports to provide security (and/or has led the residents to believe that it is providing security), ostensibly, the association may have a duty to reasonably do so. This, unfortunately, puts the association at risk. In fact, successful suit(s) against association(s) have resulted in verdict(s) in the millions of dollars.

In addition to the above, please appreciate that most associations may not even be able to reasonably and properly, much less, fully secure their communities. Consider, if your association even has a wall completely encircling the perimeter, and, even if it does, how high is that wall? Are there any gaps? Where does the wall end? How easily is that wall breached or scaled? Who guards any and all openings 24/7? How exacting are your “security” measures? How easy is it for someone to tailgate another car through your gate system? How many vendors enter your community, and what kinds of checks and balances does your community have on the vendors, and, more importantly, on the other individuals (e.g., guests, residents, etc.) entering the community? In fact, how much does your association even check on its own vendors and the personnel delivering goods and services to your association?

In view of the above, your association may want to consider having its law firm check your contract with your “security” company, as there is an excellent chance that they limit their services to things such as gate access, and in fact, your contract may expressly exclude security. If this is the case, and the association is purporting to provide security, your risk and potential liability may be escalated. Similarly, if the Board, in its newsletters, meetings, minutes, websites, etc. discusses security and/or in any way suggests that the association provides security, this, too, can create significant potential liability for your association.

Given the above, each of our affected clients may want to consider undertaking steps to, at least, try to mitigate the above risk despite the previous actions, statements, and representations of the association, its Board, Management and/or other individuals purporting that the association provides security and/or that the community is secure. In part, this may be able to be accomplished by Clayton & McCulloh drafting a letter for the association to provide to each of the owners and residents, etc. expressly disclaiming the concept that the association provides security, and in fact, expressly delineating that the association does not, in any way, shape or form, provide this service. Of course, we would, likewise, lay a proper foundation for such discussion and explanation in such a letter. Additionally, the association may want to take greater steps and post such letter and position on its website. Perhaps even more effective would be for the association to amend its documents to provide a provision which expressly disclaims that the association provides any security.

As many associations are aware, often, their Governing Documents, or amendments thereto, expressly disclaim any responsibility for toxic mold. Similarly, associations with private roads and gates may amend their Documents to expressly disclaim any such responsibility. By implementing such provisions and disclosures, some of the risk(s) associated with the owners’ and residents’ perception, and prior (mis)representations by the Developer, management, Board Members, officers, sales people, etc. may be reduced and/or mitigated.

About Those Community Entrance Security Cameras

Installing security cameras at community entrances, or elsewhere within the community, may sound like an excellent idea – it could deter nefarious acts, assist in determining who is causing problems, and create evidence of bad acts. Community association directors may, however, be unaware that it could also increase the association’s risk. As to nonfunctional cameras, these can create a false sense of security, and can result in demands for footage which does not even exist (and in turn, potentially unrecoverable attorney’s fees and costs addressing those demands). Moreover, the obligation to maintain cameras once installed could create additional security obligations which the association did not previously have under Florida law or its governing documents. Cameras can occasionally malfunction, require repairs or replacement, etc. They must also be placed where individuals’ reasonable right to privacy is not violated. Moreover, footage must be stored securely (thus again increasing the association’s cost), and could be subject to inspection and copying as association records, or sought in litigation-related discovery. The association must also determine how long the footage must be maintained (which may be dictated by the governing documents, association records statutes, and other Florida or federal laws). Finally, the association must determine who will review the footage obtained, and how frequently, and whether the review will bear additional cost.

Finally, multiple Florida condominium arbitration Final Orders have found that installation of cameras in a Florida condominium association is a material alteration of common elements which requires membership (rather than merely Board) approval prior to installation. To avoid a membership vote, a condominium association must demonstrate that: "a convincing factual predicate exists such that the board's action was necessary to protect the common elements or inhabitants from a known danger." See, e.g., Southridge Homeowners Association, Inc. v. Barbieri, Arb. Case No.94-0382, Summary Final Order (December 27, 1994). Such rulings ostensibly apply to cooperative associations as well, and a judge considering the issue in reference to a homeowners association may consider a similar subjective standard.

In short, we highly recommend conferring with the association’s counsel and management before installing any real or nonfunctional video cameras on common elements.

-- by Alan Schwartzseid, Partner

Please Vote for Clayton & McCulloh

The Florida Community Association Journal's

Readers' Choice Award

We’ve been nominated once again for the Florida Community Association Journal’s Readers’ Choice Awards! If you think we are deserving of your vote, we would greatly appreciate it if you took the time to vote for us. Simply click on the button below, and follow the instructions on the page.

Annual Corporate Reports Coming Up!

One Registered Agent on the Way!

It's almost time to file your Annual Corporate Report with the DBPR with your Board information and registered agent.

On a complimentary basis, CM is accept acting as our clients' registered agent. When you receive notice to update your Corporate, we recommend that you contact us to become your registered agent. While most management companies offer this service generally it is a legal document being served on the Registered Agent so why not eliminate the middle man so to speak. This also reduces the possibility of inadvertent or negligent delay in forwarding time-sensitive legal papers to your attorney who most likely is the appropriate person to be advising the Association regarding such a matter. For more information on what is a registered agent, why it is critical to your Association, and why a board member should not be your registered agent, please see a reprint of our "What is a Registered Agent? Who Needs One?" below.

If you would like CM to act as your registered agent, please give our Director of Public Relations a "jingle." Remember, she is available to you 24/7/365!

What is a Registered Agent? Who Needs One?

by David Thierer, Public Relations Representative

With Contributions by Ken Clayton, Founding & Senior Partner,

and Arlene Ring, Director of Public Relations

Designating a Registered Agent for your Association is a requirement of Florida’s Not-For-Profit Corporation Law. If you do not designate a Registered Agent, your corporate status will be in jeopardy of being dissolved and your Association will lose all protection that is afforded you as a Not-For-Profit Corporation. So, what does that mean? You may have heard the phrase “piercing the corporate veil.” No Registered Agent? Consider your corporate veil torpedoed! Board Members and Officers may now be personally exposed to liability for matters that should be your Association’s responsibility and your personal assets could be at risk.

What is a Registered Agent?

A Registered Agent is the person or entity who is designated by law to receive and to be served with legal process, government notices and other legal documents as the representative of the Association. You may ask, “Who can be a Registered Agent for our Association?” The Florida Statutes, Section 607.0501, provides that a Registered Agent may be:

An individual who resides in the State of Florida whose business office is identical with the Registered Office;

Another Corporation or Not-For-Profit Corporation as defined in Chapter 617, authorized to transact business or conduct its affairs in this state, having a business office identical with the Registered Office; or

A Foreign Corporation or Not-For-Profit Foreign Corporation authorized pursuant to Chapter 607 or pursuant to Chapter 617, to transact business or conduct its affairs in this state, having a business office identical with the Registered Office.

The Registered Agent’s name and address will appear on the annual report that the Association is required to file by the 1^st day of May each year with the Florida Division of Corporations in the Florida Department of State.

Responsibilities of a Registered Agent

The primary duty of the Registered Agent is to receive Service of Process of lawsuits and other legal documentation against the Association. For this reason, you want to carefully consider who you select for this responsibility.

The Registered Agent must also be available during normal business hours, usually 9 a.m. – 5:00 p.m. to accept Service of Process which includes delivery of documents such as complaints, summons, and/or subpoenas. If a process server is unsuccessful in reaching your Registered Agent about a lawsuit, the court case may be able to proceed in your absence and without you even knowing about it! Worse, the court may enter a judgment against your Association even if you are not there to defend yourself. For this reason, the Registered Agent must have an actual street address; PO Boxes are not allowed.

Why a Board Member Should Not be your Registered Agent

Your home is your castle and not a business. Being your Association’s Registered Agent means process servers will be knocking at your residence to serve you on behalf of your Association. You are legally required to make yourself available during business hours to accept service. You probably have a life outside of serving on the Board and may not necessarily want to spend business hours at your home. Some process servers may arrive at an inopportune time and may not be professional or courteous when they serve you with process on behalf of your Association.

Designating a Board Member as your Registered Agent may also open your Association to liability due to such person not knowing what should be done with the legal document with which they are served. For instance, whether your Registered Agent is a current or a former Board Member, he or she may accidentally or negligently fail to forward an important document to the right party in a timely basis. This unfortunate delay may result in severe adverse consequences to the Association and even to the Board Member. Sometimes a former Board Member (or even a current one) may become vindictive and deliberately not forward the document to the right person(s) in the proper time frame for handling, thereby resulting in liability or at least unnecessary expense for the Association.

Who Should be Your Registered Agent?

We encourage you to select a professional with an active business address to serve as your Registered Agent. This law firm acts as the Registered Agent for many of our Association clients. Most management companies offer this service as well. However, there are advantages to having your legal counsel serve as your Registered Agent since generally it is a legal document that is being served upon the Registered Agent and such will normally need to be forwarded to your attorney for review and handling. Having your law firm be served directly as your Registered Agent eliminates the “middle man” so to speak. This also reduces the possibility of inadvertent or negligent delay in forwarding time-sensitive legal papers to your attorney who most likely is the appropriate person to be advising the Association regarding such a matter.

Filing Fees

If you select or change your Registered Agent when you file your Annual Corporate Report each year, there is no additional fee. However, if you select a new Registered Agent at any other time of the year, there is an additional minimal filing fee of $35. Nevertheless is well worth the fee for your Association to have the appropriate choice of Registered Agent on file with the State when you balance that against the possible consequences of not selecting the right Registered Agent.

If you have any questions or would like to have Clayton & McCulloh serve as your Registered Agent, please feel free to call our Public Relations Department at any of the numbers listed at the end of this newsletter.

Presenting….the 2021 Free Webinars for

Community Associations and their Managers!

All New Live Webinars for 2021!

CM is setting the trend in 2021 for Community Association educational webinars! We will be presenting at least seven brand new webinars with legal information and practical solutions to the problems facing HOAs, condos, cooperatives, and mobile home parks. Our live webinars will feature one of our talented attorneys and an expert from that topic’s industry.

Here are the classes for 2021:

Who Does What? Officers Duties Breakdown

Bad Board Member: What ‘Ya Gonna Do When They Come for You?

What??!! We Can be Sued Because of Our Website?

Are You on the Eve of Destruction? Effective and Destructive Posts on Social Media

Coyotes, Bears, & Toads! Oh My!

Working with Acts of God

Mini Legal Update for Board Members

plus

Separate Live Board Certification Classes for HOAs,

Condos, Cooperatives, & Mobile Homes

CM On Demand Board Certification Classes for HOAs,

Condos, Cooperatives, & Mobile Homes

and

Live Question & Answer Session for participants of

CM On Demand Board Certification Classes for

HOAs, Condos, Cooperatives, & Mobile Homes

And as Added Bonus – Our Valued Business Partners

will be presenting webinars on a variety of topics!

We are so excited about presenting these classes that are rarely (if ever) seen offered for Community Associations. Our guest speakers who will be joining our attorneys are experts in their field and will be offering you up to the minute information and solutions for these challenges. Extra bonus: There is will be door prize drawing for every CM sponsored webinar.

Watch for our our next newsletter, Facebook page, and website for more information, dates, times, and how to make a reservation.

No More Peacocks...No More Snakes!

by Alan Schwartzseid, Partner

In early December 2020 (with a pandemic-related reduction in air travel), the U.S. Department of Transportation issued a new Final Rule which becomes effective January 1, 2021, specifying that only dogs (rather than literally any animal) may constitute a “service animal” on flights in the U.S. Specifically, the rule defines a service animal as "a dog, regardless of breed or type, that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability…" Documentation of the disability, and that the dog is certified as a service animal, is also newly required, as is a certification that the animal is in good health. Airlines may now also limit each individual to bringing two service animals aboard, and require that they be restrained in some fashion. The rule is, however, permissive rather than mandatory; airlines can impose the new limitations or choose whether to impose a lesser standard.

The new rule expressly responds to multiple concerns regarding service animals, including fraudulent claims of disabilities and resulting need for service animals, resulting in an expressed erosion of public trust in legitimate support animals. Before, essentially any animal could (and increasingly frequently did) board a plane as a service animal. This included untrained animals who exhibited behavioral, safety, allergy, and sanitary issues (i.e., they relieved themselves on planes). These types of damages are also addressed as being largely the responsibility of the animal’s owner under the new rule. The rule is especially necessary on airplanes, as these issues cannot be resolved by simply removing the animal (unlike in a community association), given the altitude at which problems tend to arise. Animals which cause problems are do not qualify as “service animals” under the rule may be kept in the cargo hold, and the cost of that service may be charged to the individual who brought the animal on board.

In legitimate cases, service animals truly benefit individuals with disabilities and enable them to survive or perhaps even enjoy a flight. While certainly more restrictive, the new rule appears to have been necessary to curtail the ongoing abuse of the existing rules. It is hoped that the new rule will enable a return to those who truly need an accommodation being able to receive one, without imposing truly unreasonable restrictions.

Take the Board Certification Class

on Your Schedule

Were you recently elected to your Board of Directors? Then you are required by Florida Statute to take the Board Certification Class within ninety (90) or be removed from the Board of Directors.

Unfortunately, there is not always a class scheduled when you are available. So what are you going to do? Take CM On Demand Board Certification Class - that's what!

You can take the class at 2 a.m. on a Saturday or whenever your heart desires as long as it is within twenty-one days of the date you make a reservation. Simply visit our website and complete the form. Within a few minutes, you will receive a Confirmation and Instructional Email on how to view the class and receive your Certification.

Some points to remember:

Please don’t sign up for the class unless you have put aside 2 – 2 ½ hours aside within twenty-one (21) days of making the reservation.
To ensure you receive your Confirmation (and Certificate), you should add pr@clayton-mcculloh.com to your email contacts.
Do not share the link. This is an automated system and if you share it with someone else, they will not receive credit. Each person must complete the form themselves. If you want to take more than one class (e.g., the HOA and the Condo class), complete two forms putting the Association’s name that you are signing up to receive certification.
If we do not receive a survey within four hours of your completion of the class, we regret that we cannot provide your certification.
Upon successful completion of the course, you will receive your Certificate within twenty-one (21) business (not calendar) days.

For the most part, this is an automated system. Please read the website and your Confirmation and Instructions email in depth as it will expedite your Certificate within the 21 days.

So, pop the popcorn, pour your favorite beverage, grab your pen and pad, settle in your easy chair, and view this class on your computer, smart phone, or tablet!

To find our new CM On Demand classes, click on the button below. Then simply select which class you want to take. Upon completing a short registration form, you will receive an instructional email with the link to the class and instructions to how to receive your Certificate of Attendance.

Another personalized service from Clayton & McCulloh, the firm that Embraces Community. Shouldn't your Association have a law firm that puts you first?

Don't Want to Take the Certification Class?

If you prefer not to take the class, please use the button below to request an Affidavit "opting out" of taking the class.

Request Affidavit

Now Available On

CM On Demand

Oh, What a Night! Elite Vendor Panel Discussion

If you were unable to attend 0ur "Oh, What a Night" Elite Vendor Panel Discussion on October 22nd - you missed a great live webinar. But have no fear! You can still listen to the great discussion that went on by accessing the webinar on our "CM On Demand" section of our Seminar Page on our website.

Our panelists were:

Five Star Claims Adjusting

Paradigm Broadband Group

ServPro

Law Firm of Clayton & McCulloh

We received some great questions and a lot of terrific and useful information was provided. Make some time in your schedule to view this awesome presentation which is sure to help you in the operation of your community. Then call one of our esteemed panelists for more information on the topics discussed.

Special Note:

There will no "CM Update" newsletters published for the months of November and December. We will resume publication in January 2021.

CM will be closed December 24th and 25th in to allow our attorneys and staff to spend Christmas with their loved ones.

Our Director of Public Relations will still be available to assist you with any problems that may come up during those holidays. Her number is featured at the end of this newsletter.

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About the "Green Marble"

The Green Marble is a monthly digital newsletter, a complimentary service for our Association Clients and Managers. CM also features an additional monthly digital newsletter, "CM Update," an annual "Community Chat" (delivered to your home via USPS), and "CM Special Editions." These publications are published by our Public Relations Department. If you have any questions, comments, or suggestions about this newsletter, please contact us at pr@clayton-mcculloh.com.

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If you elect to be removed from this e-mail service, we will no longer be able to send you seminar invitations, information on changes in the law concerning Community Associations, newsletters, or any other information regarding the Community Association industry. We sincerely hope we can continue to assist you with the challenges that face Community Associations today through this service.

When replying with a question or statement please include your name and the legal name of your Association or Management Company (no acronyms, please, unless your legal name on the Article of Incorporation lists an acronym.)

Thank You!

We would like to take a moment to thank you 2020 Valued Business Partners who helped make our seminars/webinars the success that they were. Their contributions have been very much appreciated and lauded by Board Members and Managers alike.

We hope that you will consider securing a bid for their services for your Association or in your personal lives. These Valued Business Partners are leaders in their industries and we are thankful they partnered with us this year,

Please remember that simply by clicking on their logo, it will take you to their website where you can learn more about their services as well as hire them.