When does a gathering of directors result in a homeowner’s association Board meeting?

By: Dan Rich, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

Some of the most frequent questions I face in my representation of homeowner’s associations, or “HOA’s”, relate to whether a gathering of directors is considered a “Board meeting” that must comply with the formalities outlined in Chapter 720, Florida Statutes. These questions usually arise when unit owners complain that the Board is conducting business behind closed doors at meetings that were not properly noticed. In an effort to help both HOA Boards and unit owners better understand the legal definition of a “Board meeting” and its ramifications, I address some of the most common questions I receive below.

What is the legal standard for a HOA Board meeting? Section 720.303(2)(a), Florida Statutes, defines a Board meeting as any gathering for the purpose of conducting association business by the members of the Board of Directors at which a quorum is present. Typically, an HOA’s governing documents will specifically define what number of directors constitutes a “quorum”; however, the general rule of thumb is a majority of the members of the Board constitutes a quorum. Board meetings at which association business is conducted must be open to all unit owners, and proper advance notice of the meeting also must be provided to the unit owners, except in limited cases of emergency.

Can a HOA Board hold private meetings? Florida law provides two (2) limited exemptions to the above-referenced requirement to hold open Board meetings. Currently, unit owners can be restricted from attending Board meetings only when the Board is meeting with the HOA’s attorney to discuss proposed or pending litigation or the Board is meeting for the purpose of discussing personnel matters. Please note that in order to satisfy the attorney exemption, listed above, the HOA’s attorney must be present either in person or via telephone.

Can the Board restrict member participation at an “open” Board meeting? Chapter 720, Florida Statutes, expressly provides that unit owners are allowed to speak on all agenda items during a Board meeting; however, Florida law also permits HOA’s to adopt rules that regulate unit owner participation. Typical rules may restrict the amount of time that a unit owner can speak on any given agenda item (i.e., three minutes per agenda item), or provide that no unit owner may speak more than once until all other unit owners have had an opportunity to do so. Once rules are established, consistent enforcement of said rules is crucial even if it means using a watch, cell phone timer or gavel.

Can HOA directors ever get together to socialize? It is not illegal for directors constituting a quorum to socialize while limiting the conversation to the weather, the news or sharing photos of each other’s recent vacations – i.e., non-association business. However, directors must be aware that a gathering of a quorum of members of the Board – even at a purely social event– creates the risk that a disgruntled unit owner might accuse the Board members of improperly conducting a Board meeting in violation of Chapter 720.

To summarize, Chapter 720 does not prevent Board members from socializing or require that a notice must be posted every time a group of Board members might want to go out to eat or play a round of golf. Instead, the law simply provides that a gathering of a quorum of Board members whereat the Board members discuss HOA business or engage in discussions about the needs of the community must occur only in a properly-noticed Board meeting.

The above questions are only examples and are not intended to address all potential scenarios. Therefore, if you have a specific question, you should consult an attorney who has particularized knowledge regarding this aspect of HOA law.

Dan Rich is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to thelaw@cclmlaw.com.

Litigation

Social Media and Your Case

By: J. Matthew Kelly, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

In the United States some eighty-one percent of people have some form of a social media profile. Social media is a great way to share your life with friends but it is increasingly becoming a source of evidence in legal proceedings. It is not uncommon to see that a Facebook post was the reason for the apprehension of a criminal suspect but social media is also playing a large role in civil litigation.

Gathering the Evidence
The first mechanism an attorney or investigator may use in attempting to gather social media evidence is by simply searching the individuals name. Many people do not have their social media profiles set to private which allows for a simple search of the individuals name on the leading social media websites to lead to a wealth of personal information including information that may be damaging to your case.

However, many individuals do have some level of privacy enabled on their social media accounts. In this case profiles can still be exposed by sharing content with friends who do not have strong privacy settings or through the ordinary means of discovery in a lawsuit.

In a civil proceeding, a party may obtain discovery regarding any matter that is relevant to the lawsuit, as long as such information is not protected by some form of privilege. Florida courts have already held that pictures from Facebook and other social media postings are discoverable in lawsuits. This is even true if the individual has enacted the strictest of privacy settings. Courts in Florida have effectively acknowledged that one who creates a social media account accepts that their personal information will be shared with others regardless of the user’s privacy settings.

Authenticating the Evidence
In court proceedings, it is one thing to gather the evidence and another thing to get that evidence admitted into a proceeding to be used by the judge or jury to render a decision. While discovery allows for broad requests of information, admitting a social media post at a proceeding must meet a more exacting standard.

In order for any evidence to be admitted, including social media posts, the evidence must be authenticated. The courts want to be as certain as possible that what is being admitted is not a forgery or altered in any way. This is usually done through a series of questions to a witness which include how the post was copied or saved from the website, who made the post, and who has personal knowledge that a certain individual made the post. These questions can address any other identifying features of the proposed social media evidence. Additionally, Florida courts have begun to allow expert witnesses such as internet consultants to assist in the authentication of website evidence.

Protecting your Information
The first thing everyone should do in order to better protect social media information is to make sure you take advantage of the privacy features offered by the service itself. Just as important as your own privacy settings, it is also important to ensure that those who you share information with also have strict privacy settings activated.

However, as previously explained privacy settings will not protect your information from discovery requests. The only way to truly prevent a social media post form being used as evidence is to not make the post. If you are posting something that is related or could be related to a lawsuit ask yourself if you would want the picture or post to be seen by a judge or jury. If the answer is no, do not post it. While we all want to share our lives with our friends and family, if for example you have a pending personal injury matter, the insurance company would likely be very interested in your vacation pictures as well.

Finally, once something is posted on the internet it is never really deleted as archives of the internet are being continuously made which take snapshots of the internet at certain times. So even if your post is deleted it is likely archived and may still be discoverable.

J. Matthew Kelly is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to thelaw@cclmlaw.com.

Know Your Contractor Before You Hire

By Clark, Campbell, Lancaster & Munson, P.A. 

Q: I was thinking about hiring a contractor to do some work on my house, but I’ve heard horror stories about unlicensed contractors doing shoddy work and running off before the work is finished. What can I do to protect myself?

A: A “contractor” is any person who constructs, repairs, alters, remodels, adds to, demolishes, subtracts from, or improves any building or structure for compensation, including related improvements to real estate. For example, you’ll need a licensed contractor if your remodel entails the alteration or replacement of a load-bearing wall for compensation, but a person doesn’t need to be licensed to paint or install cabinets, wood/tile flooring, or insulation regardless of compensation.

If the work being done to your home requires a licensed contractor, your first step should be to verify your contractor is licensed to do the particular work. All licensed contractors are regulated by the Florida Department of Business and Professional Regulation (DBPR). You should verify your contractor’s license by going to www.myfloridalicense.com/dbpr and clicking on the Verify a License tab. You may search using the contractor’s name or license number, or you may search by license type or do a general city or county search. You may also call the DBPR Customer Contact Center at (850) 487-1395 to verify your contractor’s license is active. Ask your contractor for references to verify and check your contractor’s previous work.

There’s a difference between whether a contractor is “certified” or “registered.” A “certified” contractor is licensed by the State of Florida and may operate in any city or county in Florida. A “registered” contractor is licensed by a particular city or county after taking and passing a local competency examination and may operate only in the city or county of registration and any other neighboring locales which accept the contractor’s registration.

The Construction Industry Licensing Board licenses individuals for construction work, and the Electrical Contractors’ Licensing Board licenses individuals for electrical work. If you discover your contractor isn’t licensed, you can report the unlicensed activity by calling the Unlicensed Activity (ULA) Hotline at (866) 532-1440 or emailing ULA@myfloridalicense.com.

Licensed contractors are authorized to perform work only within the scope of their license. Some of the different license categories include, but are not limited to, the following:

  • Air conditioning
  • Building
  • General
  • Mechanical
  • Plumbing
  • Pool/spa
  • Roofing
  • Solar.

You should also make sure your contractor carries all required insurance. In order to receive a general contractor’s license in the State of Florida, a general contractor must carry minimum general liability insurance of $300,000 for bodily injury and $50,000 for property damage. All other categories must maintain a minimum of $100,000 liability and $25,000 for property damage, or in amounts as defined by the Board. Ask your contractor for a copy of their Certificate of Insurance showing at least these minimum insurance coverages as well as workers’ compensation insurance before your contractor commences any work on your property.

Be aware that commercial general liability insurance policies do not insure the contractor against defective workmanship or work incorporating defective products or materials. Also, most homeowners’ insurance policies won’t provide coverage for damage to your home caused by defective workmanship.

There are many different forms of contracts used by contractors, and they’re typically written from a contractor’s perspective instead of a homeowner’ s perspective. Therefore, you should have an attorney review your construction contract before you sign to ensure you’re protected.