By Michael J. Gelfand, Esq. / Published January 2019
Election season for Florida community associations is right around the corner. One returning question is whether a candidate for director can create a new name to “win” the jostle for being at the top, the first name on the ballot. The answer seems to be yes, especially for Florida homeowners associations, so long as the new name does not deceive or confuse the voters.
In a judicial election dispute that could have application to Florida community associations, recently a Florida appellate court ruled that a candidate for circuit court judge could hyphenate his middle and last name in order to be listed first on the ballot. The facts in Donoho v. Allen-Rosner, 43 Fla. L. Weekly D 1987 (Fla. 4th DCA, August 24, 2018), indicate that Melissa Donoho and Jason Allen Rosner were among four candidates running for circuit court judge. Rosner sought to have his name placed on the ballot as “Jason Allen-Rosner” even though he had not used his name that way when he previously ran for judge.
Donoho filed a complaint to prevent Rosner from using a hyphenated name in order to place his name first. The trial court concluded that Rosner was not precluded from using the hyphenated form of his name and declined to enter a temporary injunction.
The Florida appellate agreed with the decision of the trial court, finding that Rosner did not create an invalid surname when he added the hyphen. Why? Because Rosner’s new name did not attempt to deceive or confuse voters. A candidate is free to choose how his or her name will appear on the ballot so long as he or she does not attempt to confuse the voters into thinking he or she is someone else. As the court stated:
[A] candidate for elective office has a great deal of latitude in choosing how to be listed on the ballot—the candidate need not use his/her “legal name” or the name that the candidate generally uses for identification.
Notably, Florida’s judicial election law does not require the use of a surname found on an official document, such as birth certificate or driver’s license.
As communities gear up for election season, it is important to note that a candidate for director may have latitude to use a form of their name on the ballot so long as they do not deceive or confuse the voters. Florida homeowners associations do not have a statute or state regulation concerning names. Application of the Donoho decision indicates that a candidate for homeowners association director does not have to use the name that appears on his or her driver’s license or birth certificate.
On the other hand, Florida condominium associations may have a narrower path because they must comply with Florida Administrative Code Rule 61B-23.0021(9). This Rule requires a condominium association ballot to list candidates by “surname”; however, the Rule does not define the source of the surname, whether a birth certificate, marriage certificate, deed, drivers’ license, or otherwise.
Will we see director candidates obtaining name change judgments? There have been many strange circumstances in elections, association elections being no exception.
As a footnote, ballot placement may not be that important. The person who placed first in the primary election with 43.18 percent of the vote was listed third on the ballot. Rosner placed second with 22.09 percent of the vote. These two candidates on to the November runoff election. Donoho and the fourth candidate were eliminated and did not move on to the runoff election.
What happens if an owner or guest trips and falls over an association’s common landscaping? After tending to them, ensuring that they receive proper assistance, the next thought frequently is, will the association be liable for injuries? Will the landscaper?
A Florida appellate court recently addressed whether there is liability for a pedestrian’s injuries occurring after he cut across a landscaped planter. In Trugreen Landcare v. LaCapra, 43 Fla. L. Weekly D 2027 (Fla. 5th DCA, August 31, 2018), the plaintiff sued the landscape maintenance company for negligently maintaining, landscaping, and inspecting the planter square. The jury found the landscape company 50 percent liable and entered judgment for the plaintiff in the amount of $200,000.
The Florida appellate court reversed the judgment. The appellate court explained that a property owner owes two duties to its customers: to use ordinary care to keep the premises in a reasonably safe condition; and, to warn of concealed hazards. Nevertheless, there are some conditions that are so obvious and not inherently dangerous that the condition does not create liability.
Thus, landscaping conditions are generally not dangerous conditions. Specifically, in this case, there was no liability because the landscaped planter was surrounded by a sidewalk on all sides allowing the customer a safe path.
Although landscaping may not be considered inherently dangerous, a Florida association should still be mindful of maintaining association property in a reasonably safe condition. For example, landscaping that becomes too tall and blocks visibility of pedestrians or drivers may lead to liability. The important point is to be vigilant.
Care should also be taken when contracting. Associations should be alert for effective requirements for vendor insurance. Contractual indemnification from the vendor to the association may also be appropriate. Beware of one-sided contracts requiring the association to insure and indemnify the vendor!
Florida condominium associations administering a condominium with 150 or more units must have a website up and running by January 1, 2019. The condominium association’s website must contain certain documents, including but not limited to the following association documents:
Passwords may be required for owner access to help ensure that association information, especially financial information, is not distributed to non-owners that can be used adversely to the association. Associations should implement processes to ensure that their websites are up to date.
Adding items to the website, such as welcoming purchasers and including application forms, may assist management. However, creating a website does not require an interactive site. Many communities have found that opening a website to posting by other than authorized association representatives can be counter-productive, especially in light of Fair Housing issues.
Contact your association’s counsel to ensure that the website complies with the statutory requirements and is accessible by the January 1, 2019, deadline.
Michael J. Gelfand, Esq.
Senior Partner of 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 firstname.lastname@example.org or (561) 655-6224.