Beware of Association President “Gone Crazy” and Personal and Association Liability

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Beware of Association President “Gone Crazy” and Personal and Association Liability

By Michael J. Gelfand, Esq. / Published February 2020

Photo by iStockphoto.com/MachinelHeadz

What happens when a Florida community association volunteer tries to do what they think is the right thing, assisting in the collection of assessments, but makes negative comments about an owner whose assessments are delinquent? Can a volunteer officer or director be held personally liable for monetary damages? How about the manager? Even if the comments are not false?

     Recently, an appellate court held that a Florida condominium association president may be personally liable for her comments, regardless of whether the comments were false, and for related conduct. The court’s rationale was that the conduct allegedly violated the Florida Consumer Collection Practices Act (FCCPA). Though the firm has written about the FCCPA, it appears that many associations and their leadership remain ignorant of this law.

     In Kelly v. Duggan, 44 Fla. L. Weekly D 2591 (Fla. 1st DCA, October 23, 2019), unit owner Kelly alleged that Duggan, who was the president of the Chez Sois Condominium Association, violated the FCCPA by locking Kelly out of a storage unit, by making public derogatory statements about Kelly, by disclosing information about Kelly’s reputation to a vendor, and by failing to provide Kelly notice of a meeting apparently concerning the suspension of certain of Kelly’s common element use rights.

     The Florida appellate court reversed the trial court’s dismissal of Kelly’s lawsuit, and allowed claims to proceed against the condominium association’s president and the condominium association. In the first part of its analysis, the appellate court pointed to the FCCPA’s definition of “consumer debt,” which provided a broad scope for the relatively little known FCCPA. When “the owner incurred the obligation to pay during the purchase transaction” assessments, that triggered the application of the FCCPA to the condominium association and the association’s volunteer president!

     How did the association and the association’s president become potentially liable? Unlike its Federal debt collection counterpart, the FCCPA expands its reach beyond hired debt collectors. Under this Florida law “no person” may undertake prohibited debt collection activities. “No person” means just that and includes volunteer officers and directors.

     What are the prohibited activities? The statute (§559.72) has no less than 19 numbered items! Some are common sense “no go” areas. As a reminder, here are a few:

(2)   Use or threaten force or violence.

(3)   Tell a debtor who disputes a consumer debt that she or he or any person employing her or him will disclose to another, orally or in writing, directly or indirectly, information affecting the debtor’s reputation for credit worthiness without also informing the debtor that the existence of the dispute will also be disclosed as required by subsection (6)

(5)   Disclose to a person other than the debtor or her or his family information affecting the debtor’s reputation, whether or not for credit worthiness, with knowledge or reason to know that the other person does not have a legitimate business need for the information or that the information is false.

(7)   Willfully communicate with the debtor or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family.

(8)   Use profane, obscene, vulgar, or willfully abusive language in communicating with the debtor or any member of her or his family.

(9)  Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate, or assert the existence of some other legal right when such person knows that the right does not exist.

(14) Publish or post, threaten to publish or post, or cause to be published or posted before the general public individual names or any list of names of debtors, commonly known as a deadbeat list, for the purpose of enforcing or attempting to enforce collection of consumer debts.

     Even if not paid as debt collector, any person engaging these prohibited debt collection activities, and others, is restricted by the FCCPA. This would include Florida community association volunteers, officers, directors, managers, and others!

     What to do? Generally, volunteers should not be “the front line” for collection efforts. It is difficult enough serving as a volunteer officer or director for the community in which you live. “Self-help” collection enforcement normally is not to be an option, nor is a “deadbeat list.”

     Collections normally should be handled by those who are paid to handle the matters properly. Managers who may have thought they were exempt from debt collection laws should consult with their counsel and ensure that their activities are within the law. Associations should consult with their counsel to ensure they are “doing the right thing.”

Failure to Provide a “Cut” in a Curb May Violate a Duty of Care Owed to a Handicapped Person

     What happens if someone falls on a curb outside an association building or within an association community in Florida? Will the association be liable for negligence? If the injured person is disabled, is there a higher duty of care?

     A Florida appellate court recently ruled that the failure to provide a curb cut between a sidewalk and a parking lot may proceed to trial. In Krueger v. Quest Diagnostics, Inc., 44 Fla. L. Weekly D 2318 (Fla. 2d DCA, September 13, 2019), Krueger, who was described as elderly and handicapped, was injured when he fell near a curb in a strip mall parking lot in front of Quest Diagnostics, which he had just visited. Krueger parked in the handicapped space closest to Quest.

     Krueger sued the owner of the strip mall and the management company, alleging they negligently maintained the strip mall parking lot by not providing a curb “cut” that would have allowed a handicapped person direct access to and from the handicapped parking spaces. Krueger alleged that the curb between the sidewalk and the parking lot impeded his access to the Quest office, and the failure to provide a cut in the curb violated the duty of care owed to a handicapped person.

     The Florida appellate court sent the case back for a jury trial. In these types of premises liability cases, a jury may consider building code provisions in determining whether a defendant complied with a duty of care. While Krueger did not assert a claim under the Americans with Disabilities Act, his claim for negligence could rely on the Florida Accessibility Code, which was created to assist the mobility disabled.

     This decision reinforces the importance for Florida associations to ensure that their buildings and other structures permitted after the adoption of the Florida Accessibility Code provide proper access for the mobility disabled. Further, frequently substantial renovations to older structures may trigger the need for upgrades to comply with the Code. Sometimes a simple thing such as a “cut” in a curb may not only avoid liability but also be of substantial assistance to a community’s residents and guests. 

Michael J. Gelfand, Esq.

Senior Partner, Gelfand & Arpe, P.A.

     Michael J. Gelfand, Esq., the Senior Partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a dual Florida Bar Board Certified lawyer in Condominium and Planned Development Law and in Real Estate Law, Certified Circuit and County Civil Court Mediator, Homeowners Association Mediator, an Arbitrator, and Parliamentarian. He is a past Chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at ga@gelfandarpe.com or (561) 655-6224.