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TO OPEN OR NOT TO OPEN
By
Eric Glazer, Esq.
Published June 1, 2020
So things are coming back to normal little by little. Although,
I still need a dam haircut. If I wait another week or two, I
figure my dog and I can go together to his groomer.
The
“emergency powers” given to Boards of Directors expire today.
The Governor is allowing public places to slowly re-open. So
does this mean that the pool an all the condo and HOA
recreational areas are now open and must remain open? For
those of you hoping the answer is YES – you are going to be
disappointed.
Each county still provides their own orders in terms of what’s
open and what’s not. As an example, let’s take a look at what
the Palm Beach County order states:
Notwithstanding
the Reopening of boat ramps, marinas, golf courses, parks,
natural areas, tennis courts, and Community pools under this
Order, all individuals shall continue to adhere to the
Guidelines from the Centers for Disease Control and Prevention
available at
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html
and attached herein as Attachment1, as amended. These are
hereafter referred to as the "CDC Guidelines’’. All
owners, operators, and personnel involved in the bellow shall
ensure compliance with these CDC Guidelines.
According to this order, if a Board were to re-open the pool,
the association would be responsible for ensuring compliance
with CDC Regulations. That may be impossible without the
association employing someone to sit there all day. Moreover,
failure to comply with the order may also be a criminal
violation, subjecting a board member to arrest or a fine.
The Order also states that: Community
pools shall reopen provided that CDC Guidelines, including
all social distancing guidelines, are adhered to.
If the Board cannot ensure that CDC Guidelines will be adhered
to, the pool should stay closed. To do otherwise would be to
violate the terms of the order.
I always say, anyone can get sued for anything. You can’t stop
that. But the question is…..will it stick?
I don’t think a lawsuit against an association for failure to
open the pool would have much merit, if the defense of the Board
is that they cannot ensure compliance with CDC guidelines, and
therefore, in the business judgment of the Board, and in the
interest of the health and safety of the owners, we choose to
close the pool until we are no longer required to ensure
compliance with CDC guidelines.
In the interim, let us know how your association is dealing with
the pool and rec areas. I can tell you that I have heard some
great ideas, including having to make a reservation to use the
pool.
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About
HOA & Condo Blog
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Eric Glazer graduated from
the University of Miami School of Law in 1992 after
receiving a B.A. from NYU. He has practiced community
association law for more than 2
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decades and is the owner of Glazer
and Sachs, P.A. a seven attorney law firm with offices in
Fort Lauderdale and Orlando and satellite offices in Naples,
Fort Myers and Tampa.
Since 2009, Eric has been the host
of Condo Craze and HOAs, a weekly one hour radio show that airs
at noon each Sunday on 850 WFTL.
See:
www.condocrazeandhoas.com.
He is the first attorney in the
State of Florida that designed a course that certifies
condominium residents as eligible to serve on a condominium
Board of Directors and has now certified more than 10,000
Floridians all across the state. He is certified as a Circuit
Court Mediator by The Florida Supreme Court and has mediated
dozens of disputes between associations and unit owners. Eric
also devotes significant time to advancing legislation in the
best interest of Florida community association members.
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