Sarasota attorney Lobeck also offers new guidance in regard to residents with emotional support animals
An annual update to inform Siesta Key Condominium Council (SKCC) members about changes in association laws took a different tack this year.
Sarasota attorney Dan Lobeck, of the firm Lobeck & Hanson, opened his Jan. 12 program with a focus on issues related to the COVID-19 pandemic.
He has heard incorrect information, Lobeck said, that the federal health care privacy act — HIPAA — prevents associations from identifying any resident who has COVID-19. (The law officially is the Health Insurance Portability and Accountability Act of 1996, the U.S. Department of Health and Human Services explains.) Lobeck emphasized that that law “doesn’t apply to associations; it is for health care providers only.”
On the other hand, he continued, the State of Florida’s Condominium Act and the state statute regarding condominium association records say that no condominium resident legally can access or review any documents an association has on file that contain information about another resident’s health.
Therefore, Lobeck advised the SKCC members that if association leaders learn of a resident who has tested positive for the virus, the association can inform the other residents that the illness has been reported, with the hope that the resident will self-isolate until he or she no longer is contagious.
“And, perhaps if you’re a large enough community,” Lobeck added, association leaders can reveal the area of the complex where the ill person resides. Nonetheless, he warned against providing details that would enable someone to figure out where the infected person lives on the grounds.
“There’s something in the Florida Constitution that broadly entitles people to privacy,” Lobeck explained.
Further, Lobeck recommended that associations consider implementing a rule that requires that any resident diagnosed with COVID-19 remain in isolation until the person is well again.
Finally, he said, an association might want to encourage other residents to take extra precautions “for the immediate future” after a person living in the complex has been diagnosed with the novel coronavirus.
Yet another issue related to the pandemic, he continued, is one of financial hardship. For example, Lobeck said, if a worker in the hospitality industry lost his job and is having trouble paying bills, some association leaders may feel they should “go easy” on collections of maintenance fees and special assessments. “You heard the exact same kind of thing [during the Great Recession],” he pointed out. “I would hope that associations have learned their lesson from that.”
If associations allow leeway in their collections of fees from persons who have lost income, Lobeck said, other residents without financial constraints often get angry, alleging that the persons who are not paying are getting a “free ride.” Moreover, he noted, “It becomes more challenging,” not just for an association board but also for the condominium owners who are in arrears, “to dig themselves out of the hole that they had created,” if payments are not kept up-to-date.
Lobeck also explained that because the pandemic-related State of Emergency for Florida that Gov. Ron DeSantis issued in the spring of 2020 is still in effect, each condominium association board has its own emergency powers. That results from a state statute that was implemented to deal with hurricanes, he noted. “It says you have the right to close facilities. … That would also apply to the board’s ability to close common facilities, such as gyms or a recreation hall.”
Chapter 718 of the Florida Statutes — the Condominium Act — gives association boards “the ability to adopt reasonable rules and regulations regarding the use of common facilities,” he said. Any judge hearing a case filed by an owner challenging such action likely would rule for the association board, he continued. That is because judges generally give “abundant discretion” to the boards in such situations.
Having pointed out that he has specialized in condominium law for the past 40 years, Lobeck said, “It’s been my advice to clients that they have wide latitude.”
Some associations have relaxed their rules as the pandemic has continued, Lobeck noted. For example, he lives in a condominium complex in downtown Sarasota. At first, he pointed out, the association kept the gym closed to everyone. Later, it started allowing persons to use the facilities by themselves, by appointment, for an hour at a time.
He acknowledged that some of the relaxation of measures has been a result of “people … getting a little stir crazy. … Honestly,” he added, “I think people are putting themselves more at risk than they should be.”
In regard to conducting meetings — and, especially elections — while the pandemic continues, Lobeck pointed out, “That’s a hot topic,” as associations’ annual meetings and elections typically take place this time of year.
Even before the pandemic began, he explained, a state statute gave associations “the right to conduct meetings with participation allowed by … electronic means.” The idea when that law was passed, he said, was that people could call into meetings. Of course, he noted, Zoom has become a popular platform for all types of sessions — including the SKCC meeting that afternoon.
However, he cautioned, a person still has the right to participate in an association board meeting in person. Invariably, he added, association bylaws call for the publishing of a notice about the date, time and place of any board meeting. “It might be argued that cyberspace is a place,” he said, but such a contention is likely to fail.
If an association board does plan to conduct a meeting in person, Lobeck pointed out, it can choose a place large enough for “abundant social distancing,” and masks can be required for the duration of the meeting, along with “very aggressive disinfectant procedures.”
Still, he continued, his recommendation would be to conduct “hybrid meetings,” so persons who prefer to participate via a program such as Zoom can do so, and those who would prefer to attend in person can do so.
As for elections: An owner also has the right to observe the counting of ballots, Lobeck pointed out, and an owner can do that by watching the process online. Yet, “You still have to have a place where the ballots are opened and counted,” Lobeck said. “I honestly don’t see how that could be avoided … unless you go to internet voting.”
State law does allow association boards to conduct elections via the internet, he explained. “But even that [statute] allows owners [who do not sign up for electronic voting] to do it the old way.”
Concerns about therapy, or emotional support, animals
Turning to a different topic, Lobeck noted that condominium associations’ dealings with therapy — or emotional support — animal situations is “always the source of a lot of questions and comments” when he provides his annual updates to the SKCC members.
The U.S. Department of Housing and Urban Development (HUD) has provided new guidance — not a law, he stressed — that clarifies that a certification form someone can buy online to try to prove that the person has need of a therapy animal “is worthless.”
Further, he said, HUD has told attorneys that requests for certification regarding an animal other than “common household animals” can be denied. Dogs and cats are considered common household animals, Lobeck explained, while, for examples, barnyard animals, kangaroos, monkeys, and reptiles — other than turtles —are not.
Moreover, he continued, HUD “has created a substantial burden” for a person with a disability to demonstrate that that person needs a therapy animal. Additionally, he said, a condominium association has the right to require that a person provide documentation from a doctor or a comparable health care provider that the person needs a therapy animal.
A new state law regarding emotional support animals says that a certificate from an out-of-state doctor who has not been treating the person is invalid, Lobeck explained. The person has to have a certificate from a health care provider who can attest that the person has entered that provider’s care and that the provider has been aware of the person’s condition for a period of years, Lobeck added.
An SKCC member did ask Lobeck for clarification of some of his comments, given the number of condominium owners on Siesta who are snowbirds or out-of-state visitors.
The law, Lobeck replied, makes it clear that the person’s doctor must have “genuine knowledge about the alleged disability” of the person.
Does that mean the association can ask how long the doctor has been treating the person, the SKCC member asked.
“Yes,” Lobeck replied.
The best way to deal with the issue, Lobeck continued, is for an association to create its own form for owners and then require that they use it. The form should call for documentation of “substantial impairment of one or more major life functions,” he said, as the basis for the person’s need for the therapy animal.
However, he added, if the person presents the association a “short little letter” signed by a doctor that incorporated “those kind of magic words” that he had just cited, then such a letter should be considered valid.
Further, Lobeck explained, “Federal law requires that you allow a person with a disability-serving animal … to be allowed to take that animal anywhere the owner can go,” unless it is a place where health regulations apply. For example, he said, a therapy dog can be allowed on a pool deck, but not in the water.
An association also can require that a dog “do its business” only on the dog walk provided at the condominium complex, Lobeck added.