Q: When my condominium was built, the declaration prohibited children and pets. We now have many young children in the building. Can the board prevent babies in swim diapers from swimming in the pool?
– MAV, via email
A: Only at the risk of being found in violation of fair housing and other applicable laws.
According to Florida law, most community association pools are considered “public” pools and are governed by Chapter 514, Florida Statutes and Chapter 64E-9, Florida Administrative Code, except to the extent excluded by those provisions.
The code contains the following statements: “Swim diapers are recommended for use by children that are not toilet-trained. Persons that are ill with diarrhea cannot enter the pool.”
I am the mother of two boys, and when they were small I endured many a “skunk eye” from fellow hotel guests who apparently thought that a swim diaper was little protection against pool contamination. Now that my boys are grown, I understand those concerns better. I had to check myself the other day at my community pool from complaining about a little girl screeching at high volume for a long time while I was trying to read. I have officially become my mother. And I learned that I should always bring my iPod to the pool. Such is community living.
Debate exists over the efficacy of swim diapers, but the bottom line is that fecal contamination of swimming pools is a real concern. Just ask cruise lines. That contamination can come from adults as well as young children.
Requiring a swim diaper may pass muster, but an absolute prohibition on children below a certain age from entering the community pool would not. Neither would a restriction on certain hours or days when children may use the pool.
Even a “55 and older” community that qualifies as housing for older people, legally entitled to restrict occupancy by minors, has to deal with grandchildren and other guests with children.
The United States Centers for Disease Control and Prevention encourages the use of swim diapers but acknowledges that they are not a substitute for frequent diaper changing and bathroom breaks.
ONLINE VOTING?
Q: Our annual meeting is a week away, and we are concerned about a lack of response to the election of directors and voting on proposed document amendments. Currently, we mail an annual meeting package to each owner, and they can mail or hand-deliver their proxy/ballot to our on-site office.
Because of the size of our association, the cost of this mailing exceeds $5,000. I have been wondering if you are aware of any condos/HOAs that have used any kind of electronic voting system.
If not, and we were to try to develop our own software, is there any specific legal criteria an electronic voting system needs to satisfy that we should know about? I am thinking that we could save money and get a better response with such a system.
Of course, we would furnish “hard copy” voting material to those not comfortable with a computerized approach.
– M.B., via email
A: Some states have addressed online voting by members of community associations. Florida has not.
Florida condominium and HOA laws do address providing notice of membership meetings by electronic transmission. This may require a legal review and amendment of the association’s bylaws, but could save your association much of the cost of mailing the annual meeting package.
In certain circumstances, notice may also be provided by using an association closed-circuit cable television system if the notice and agenda are broadcast in accordance with applicable requirements. Condo and HOA requirements are similar but not identical.
So what you need to know today is that a Florida association may well be able to electronically transmit meeting notices to members who consent to receiving notices by that method. What is not clear is whether a member can cast a ballot or submit a proxy electronically. Consult with the association’s legal counsel for guidance.
HIP HOP HOA?
According to the celebrity gossip website TMZ, the music mogul Sean Combs, aka Puff Daddy, P. Diddy, and Diddy, is shopping for new digs. He is eyeing a $12 million, 11,200-square-foot home in a gated community in Beverly Hills. But he won’t close the deal until he confirms the HOA’s policy on partying. He wants to know “how hard he can rage.”
You know what? That is pretty smart. I wish more people, before buying, would explore what they want to do that their prospective association says is a “no go.” Also smart is finding out whether the association allows things you don’t want to have to live with.
Tamela Eady is a Florida Bar board-certified real estate attorney with more than 25 years’ experience, concentrating her practice on community association and real estate legal matters. The subjects discussed in her columns are not intended as specific legal advice to anyone and are subject to principles that may change from time to time. Questions may be modified for clarity or for brevity. Email questions for possible inclusion in a future column to tke@eadylaw.com.
