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.
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!
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 firstname.lastname@example.org or (561) 655-6224.