FORT MYERS, Fla. – Question: I have several questions about the fining/suspension committee hearing. – F.P., Estero
Question: Can the owner who appears before the Hearing Committee bring a witness or their attorney to the hearing?
Answer: Yes, within reason. They should not be allowed to parade in 10 witnesses. You should allow them to bring an attorney, but if they have not given you notice of doing so, the committee should consider postponing the hearing so the HOA can decide whether or not to have its attorney attend. So, I would suggest you add some type of “pre-hearing” rules to the fining committee hearing notice that if the owner is intending to bring an attorney they need to tell you in advance, otherwise the attorney will be excluded.
Question: If not, can such people be excluded?
Answer: The only people legally entitled to attend would be the owner and other owners as witnesses. All others including an attorney could be excluded, but I would allow the attorney as long as you were notified in advance.
Question: If they are permitted, must they be allowed to speak?
Answer: The owner accused of a violation should be given a reasonable amount of time to present their defense. So, yes, you should allow their witnesses to speak.
Question: Am I correct that the committee does not have to defend or justify the board’s action to the owner?
Answer: Correct. The only role of the committee is to listen to the evidence from both sides and determine if the board’s imposition of a fine was valid or invalid based on if the violation occurred or did not occur, and if the owner has a valid defense, such as, “Yes, I did leave my garbage can out for three days, but that was because I was in the hospital following a car accident.” In that case, the committee could decide that the violation was not intentional and there is a valid reason not to impose the fine.
Question: And, they do not have to answer questions? They only need to listen to the owner and consider the owner’s comments?
Answer: Correct. But the committee can ask questions.
Question: Their role is to approve or disapprove the board’s sanction.
Question: They do not have to deliberate, decide and advise the owner of their decision at the hearing?
Answer: This depends on how your governing documents address committees. The statutes do not expressly require the committee to deliberate at the open meeting. But depending on whether you are a condominium association or homeowners association and what your particular governing documents provide you may have to do so.
Question: Last, am I correct that the Hearing Committee’s decision is not subject to appeal by the owner. The board does not have to agree to an appeal. The committee’s decision is the final word?
Answer: Correct. There is no statutory right of appeal of the committee’s decision. The Fining/Suspension committee is essentially the appeal. It is an appeal of the board’s decision.
Question: Our condominium has 125 units. We are being told that we must have an association website and are required to post certain official records on it. Is this true? – S.S, Cape Coral
Answer: No, that is not true. Florida Statute 718.111(12)(g) provides that an association managing a condominium with 150 or more units must have a website and post certain documents on it. Since your condominium is less that 150 units, you are not required by law to maintain a website. Note that there is no website requirement for Cooperatives of Homeowners Associations.
Question: We recently had a group of residents start a social media site for discussions about life in our community. The page appears to be “official” as it uses our community name and logo. The comment section quickly became a gripe session and occasionally has content that is “adult” in nature. What can we do to make it clear this page is not authorized by the board and has no official ties to the association? – T.D., Fort Myers
Answer: With social media becoming the primary way many people communicate, forums such as the one you describe are becoming more prevalent. However, the name and logo of the association remains its intellectual property, and unauthorized use can be, and in most cases should be, curtailed. Permitting unauthorized usage of the association’s intellectual property can lead to “dilution” of a trade name or trademark, and weaken the association’s ability to protect it.
In addition to usage in social media forums, dilution can occur as businesses and vendors in the neighboring community try to cash in on the association’s brand and reputation. Whether this is a local car wash, shopping center or a Realtor’s website, failure to address this encroachment sooner rather than later allows these businesses to develop their own trademark rights utilizing the association’s name.
Luckily, obtaining a state trademark registration for your association’s name and logo is not overly cumbersome or cost-prohibitive. Doing so will put others on notice of your trademark, making it easier to compel others to cease and desist their unauthorized use of the association name and logo.
While it is not necessary to have an attorney file a trademark application with the state of Florida, you should consider consulting your association’s counsel to discuss how broad or narrow your application should be, to explore whether prior usage by other businesses might impact your claim, and whether there are copyright issues involving ownership of your logo and the artist or agency who designed it. For a small investment, your association can obtain the peace of mind that its intellectual property is secure – and put a stop to your logo appearing on “unofficial” social media pages.
Question: Our association has a handyman that we regularly use as an independent contractor. It is only him and sometimes a helper. He does not have workers compensation insurance as he is legally exempt from being required to carry it. Our management company is telling us we should not use this person if he is not insured. Our association has its own workers compensation insurance and general liability, so I am not sure I understand the problem. What is your opinion on this topic? – A.C., Bonita Springs
Answer: Workers’ compensation is a form of insurance providing wage replacement and medical benefits to employees injured in the course of employment in exchange for mandatory relinquishment of the employee’s right to sue his or her employer for the tort of negligence. So workers compensations protects the employer, not the association directly.
If an accident occurs, you have general liability insurance to cover the association, and if the person somehow could prove he was an employee of the Association that is what the association’s workers’ compensation is for. The downside of the employer not having workers’ comp is that if the employee gets hurt and the employer is not well-financed, the injured person will only have one entity to sue, the association.
If the employer has workers’ comp, then some of the liability can be laid off on the employer and presumably less on the association. But another real problem is that if the handyman causes damage to the association property or injures someone, he has no general liability insurance to pay for it.
For those reasons we do not recommend the association hire persons without workers’ comp, even if not legally required, and certainly not without general liability coverage.
Richard D. DeBoest II, Esq., is co-founder and shareholder of the law firm Goede, Adamczyk, DeBoest & Cross, PLLC. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, PLLC or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.
© 2021 Journal Media Group