Page 11 - SFL Cooperator Fall 2020

SOFLCOOPERATOR.COM
THE SOUTH FLORIDA COOPERATOR —
FALL 2020
11
Disclaimer: The answers provided in this Q&A
column are of a general nature and cannot
substitute for professional advice regarding
your specific circumstances. Always seek the
advice of competent legal counsel or other
qualified professionals with any questions you
may have regarding technical or legal issues.
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written request. After ten (10) business days was the subject of a recording are approved to the members while it remains a record. If violation reported to this board member re-
of denied access, damages (actual damages or by the body authorized to approve said min-
statutory damages accruing at a rate of fifty utes. After said approval, the recording may without an attorney present, then that is a vio-
dollars ($50.00)/day for up to ten (10) days) be discarded; however, if the body authorized lation, but probably does not change the ap-
will be awarded for a willful denial of access.
“While minutes of a meeting are official recording, it shall maintain its status as an of-
records, a tape recording of a meeting is not ficial record under this provision. It is not the committee meetings are also subject to similar resignation from said board member if they
listed among the specified categories of re-
cords an association is required to maintain. ings be made but to require that if they are
However, the statute has a ‘catch-all’ provision made that they be maintained at least until closed and privileged, then the recording is
for all other ‘written records.’ The Department minutes of the meeting which was recorded also privileged and need not be accessible to
of Business and Professional Regulation Divi-
sion of Florida Condominiums, Timeshares, tions which record meetings only as an aid for (12)(c)(3)(a), Fla. Stat. because of its privi-
and Mobile Homes (the ‘Division’), a Florida preparing minutes of the meeting. Thereafter, leged nature. As an aside, it should be noted shareholder with the Community Association
agency that regulates condominiums, has recordings purposely preserved shall be offi-
adopted a rule, Florida Administrative Code cial records.’
Rule 61B-23.002, that specifically governs
whether a recording of a meeting can consti-
tute an official record.
“The administrative rule includes record-
ings of meetings among the official records, or committee’s direction) is a record until confidential nature of attorney/client commu-
with limitations and, in most cases, only tem-
porarily. Subsection (7)(b) of the rule pro-
vides as follows: ‘(b) Other records related to to keep them (in which case they remain re-
the operation of the association, which the cords), or discard them. Alternatively, if the
association shall maintain as official records board decided to incorporate the recording
pursuant to Section 718.111(12)(a)15., F.S., or into the minutes or attach them, then it would
as that subparagraph may be subsequently re-
numbered, shall include, for example:…
‘3. Audio and video recordings made by meeting and the meeting was not a meeting
the board or committee or at their direc-
tion. Except, however, recordings of board ing or threatened (contemplated) litigation, er has come to them regarding breaking of
of directors, unit owner, or committee meet-
ings shall be maintained as official records at meeting, as opposed to a closed-door meet-
least until the minutes of the meeting which ing. In such a case, the recording is accessible the owner that reported the violation? The
to approve said minutes elects to preserve the plicability of the Rule governing whether the must keep that type of information confi-
intent of this rule to require that such record-
are approved. This accommodates associa-
“Based upon this rule, the recording of door meetings with legal counsel to meetings so far as to testify in formal proceedings as to
the executive meeting by a director (assum-
ing it was done with the rest of the board or however, in practice, the scope of the privi-
committee’s knowledge or at the association lege is interpreted broadly by some given the tion in question received a written complaint
the minutes of the executive meeting are ap-
proved, at which point the board can choose tiary and work product privileges enjoyed by communication would be considered part of
have to be kept as part of the minutes.
“If a quorum of the board attended the
with legal counsel in anticipation of pend-
then the meeting should have been an open the rules which has now caused friction
the meeting was closed, with a quorum and sulted in the owner’s car being towed for vi-
recording is an official record. In most cases, dential and that it’s grounds for immediate
notice requirements as board meetings.
“Assuming that the meeting is properly
the membership pursuant to Section 718.111
that the Florida Condominium Act seems group at Becker Law. “As a matter of fact, the
to limit the right to have privileged closed-
involving pending or anticipated litigation; the violation, so his or her identity is impos-
nications generally and the statutory eviden-
litigants including associations.”
Rules for Disclosing to Rule-Breakers
Q
Are there any ramifications ‘confidential.’”
against a board member who
has disclosed information to an
owner (the rule breaker) that another own-
and even attempted confrontation towards
olating a parking rule. It seems like I’ve read
somewhere in the past that board members
don’t abide by that rule?
—Condo Confidential
A
“The information referred to
in [this query] is NOT privi-
leged,” says Jennifer Horan,
owner reporting a violation may have to go
sible to keep secret. Moreover, if the associa-
from an owner regarding a violation of the
rules and restrictions, in Florida the written
the association’s ‘official records’ and must be
made available to owners for inspection and
review upon written request. It would be very
difficult, if not impossible, to keep the record
n