Preparing for the Future by Reviewing the Past

By Michael J. Gelfand, Esq. / Published December 2017

If we have said it once, we could have said it a hundred times, and it is worth saying again and again. Mainland Florida was spared the worst of the terrible trifecta of Irma, José, and Maria.

       The Caribbean and the Florida Keys deserve our attention and charity and serve as a testament to the fact that no matter how sturdy the structure or how strong the bravado, Mother Nature is unpredictable and will prevail!

        Just as any “business,” before memories of Hurricane Irma retreat into hazy and less than accurate memories, it is imperative to evaluate how your community actually performed. It is helpful to gather a small group to provide insight. Like any good review, start with the positive, what went right, and then look at areas that need improvement.

       When determining what to do next time, consider that commencing preparations upon posting of hurricane warnings is more than a bit too late. Instead, consider that the start of storm preparation should be no later than the start of hurricane season, June 1 of each year.

       The simplest place to begin is with your association’s storm action checklist. How should you keep the checklist? It may seem outmoded if not old-fashioned in this time of tablets and smartphones, but when bad weather and chaos approach, nothing seems to beat the practical usefulness of a three-ring binder with each checklist page slipped inside a clear plastic page protector. Big type and headings help ensure legibility. Keep a duplicate in the inside binder’s pouch for markup.

       Consider organizing the binder around a timeline. Each step of the timeline may be defined by advancing stages of a storm. Each step has difficult tasks, usually dependent upon whether the task is office or administrative or outside and physical. The following provides a start for your storm action checklist.

June 1 (Annually) Office/Administration:

• Confirm insurance policies are up-to-date
• Create a “Go” or take-home package of critical information, including the following:
  • Staff contact information
  • Governing documents with amendments
  • Up-to-date membership roster
  • Financial statements and reports
  • Current insurance policies
  • Backup of computer data on a thumb drive or off-site in a remote accessible server
  • Identify residents who are likely candidates for evacuation because of infirmities and discuss with them their need to plan now because waiting for the storm will be too late, reminding them of the association’s limited resources after a storm and inability to provide individualized assistance.

Outside:

• Secure supplies, including fuel for generator, flashlights, water, and food.
• Top off generator fuel.
• Replenish batteries and battery-operated devices.
• Confirm that hand and power tools are properly stored and operational, including chain saws, drills, rakes, shovels, carts, and wheelbarrows.
• Determine whether an additional generator and fuel storage capacity is desired and affordable.
• Trim overgrown trees.

Four to Five Days in Advance of the Storm

Office:

• Review the hurricane binder with staff.
• Confirm staff availability and methods of communicating during and after a storm.
• Remind staff to secure their own homes, gas up their cars, and obtain supplies, so that staff will have peace of mind when they return to work.
• Warn residents and non- resident owners whether it is anticipated that water and electric utilities will be turned off, that elevators will not be operational, that exits will be closed and sandbagged, and, of course, that staff will not be able to assist individuals.
• Encourage evacuation, especially for those who are not able to help themselves.
• Confirm communication methods and begin posting appropriate media messages to owners and residents, including the date and time of posting.

Outside:

• Evaluate all exterior areas, noting potential problem areas, undertaking last-minute clean-up and repairs for items necessary to secure the building.
• Schedule the time for installation of shutters and removal of exterior items, realistically estimating your staff availability.

Hurricane Watch

Office:

• All staff is assigned to essential hurricane protection efforts.
• Begin office voice mail message with status of community.
• Urge those with infirmities of the need to evacuate.
• Warn all residents of impending shutdown of facilities and utilities.

Outside:

• Install hurricane shutters and other protection devices.
• Prepare utility systems for shut down.
• Secure entries as appropriate.

Hurricane Warning

• All preparations should be complete, then double checked.
• Elevators and other electrical and mechanical machinery should be secured pursuant to manufacturers recommendations.
• Post signs and/or a notice on websites and other media with a last message reminding owners and residents that information will not be available until after the storm, and please do not call or email for general information because that will only detract from storm recovery efforts.
• Place a similar message on the office voicemail.
• Evacuate as appropriate.

Post-Storm

• Inspect the property, especially for dangerous conditions and situations requiring repair and photographing.
• Inspect electrical and mechanical systems to help ensure that startup and reenergizing does not create additional damage.
• Post status and anticipated contact information.
• Confirm staff status and availability.

Continuing Issues:

       A true understanding as to the amount and extent of insurance coverage and the impact of deductibles is crucial, especially as deductibles of five percent or more are increasingly the norm.

       Education of residents as to the need to evacuate, particularly the infirm who cannot fend for themselves, needs to start early. This is not callous but is actually being kind to help ensure the safety of these residents.

       Infrastructure hardening, including waterproofing areas below flood level and raising machinery, cannot be delayed and delayed. As we have written for quite some time, especially as an association undertakes renovations of one type or another, there should be significant consideration to raising electrical and mechanical components so that the components are not damaged by floodwaters. Especially as was observed in Houston after hurricane Harvey, flooding can occur far inland, far from tidal waters.

       Remember, preparation and clear communications are your best friends when a storm approaches!

Homeowner Convicted of “Felony Littering” in His Own Yard

       In large communities, or even small ones, there may be that one yard that is not properly maintained. Trash and overgrowth are more prevalent than kudzu. What options does an association have in dealing with a property that is a mess and the owner refuses to fix it up? Believe it or not, the owner may be criminally charged with a violation of Florida’s Litter Law.

        This is exactly what happened in Cosio v. State of Florida, 42 Fla. L. Weekly D 1959 (Fla. 2nd DCA, September 6, 2017), where a Florida appellate court recently affirmed the felony littering conviction of a homeowner. The facts indicated that over the years, Mr. Cosio, an elderly man, let his yard become full of junk, which included newspapers, bottles, cans, tubs, barrels, dolls, toys, and pickup trucks among an overgrowth of trees, shrubs, plants, and wild vegetation.

       In April 2015, the city began a code enforcement proceeding against Cosio. The code enforcement board found that the property was “a serious public safety and welfare threat” and imposed a deadline for the property to be brought into compliance. Because Cosio did not improve his property, the city began an abatement process in October 2016, which entailed city workers cutting down trees, trimming overgrowth, and cleaning up all the accumulated trash from the property. Thereafter, Cosio was charged with felony littering and found guilty following a jury trial.

       “One man’s trash is another man’s treasure,” the Florida appellate court wrote, “but sometimes, it’s just another man’s nuisance.” Although not happy with the decision to prosecute an elderly man who hoarded junk, the appellate court nonetheless affirmed the conviction.

       Section 403.413(6)(c), Fla. Stat. (2015), provides that it is a third-degree felony for dumping litter in an amount exceeding 500 pounds in weight or 100 cubic feet. The court concluded that Cosio had dumped enough litter on his property to support his conviction.

       In other words, if your community is ever faced with an eyesore that the owner will not fix, be aware that there is the potential for a criminal violation of the Florida Litter Law. 

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 Florida Bar Board-Certified Real Estate Lawyer, Certified Circuit and County Civil Court Mediator, Homeowners Association Mediator, an Arbitrator, and Parliamentarian. He is the 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.