By Jeffrey A. Rembaum, Esq. / Published January 2020
Author’s Note: Welcome to the new home for Rembaum’s Association Roundup, the community association news that you can use, now in its 10th year of publication. Its continuing mission is to provide and promote association education for board members, managers, developers, and community association members on topics to include legislation and how it may be interpreted and applied, recent appellate decisions, and other topics of interest to those who live within or provide services to Florida’s community associations. I hope you enjoy reading our column as much we enjoy writing it!
– Jeffrey A. Rembaum, Esq.
Very recently, more and more condominium, cooperative, and homeowners associations find themselves as potential defendants in Federal Fair Housing Act (the FHA) discrimination litigation due to the association’s website. It is alleged that the failure to make the website easily accessible to those with visual impairments or blindness is discriminatory. In short, the FHA prohibits making, printing, or publishing, with respect to the sale or rental of a dwelling, anything that indicates any preference, limitation, or discrimination based on a handicap, or the intention to make such preference, limitation, or discrimination. Thus, the FHA covers all written and oral notices or statements by a person engaged in the sale or rental of a dwelling. Therefore, as the argument presented by the potential plaintiff is explained, if the association’s website is providing information regarding the sale or rental of units or lots, and proper precautions are not taken to ensure that the website can be “listened to” rather than “read” by an individual who is visually impaired or blind, then that association could be a prime target for the threat of a federal discrimination lawsuit. This latest trend is exacerbated by s. 718.111 Florida Statutes, recently amended to provide the requirement that condominiums with 150 or more units post certain official records on the association’s website, which has led to the creation of numerous new association websites.
Victim’s Awareness Inc. is a national not-for-profit corporation whose membership consists of persons with disabilities and others who are committed to equal access, equal opportunity, and equal rights for protected classes. Employees of this company, along with its constituent members, troll the internet searching for websites offering housing for sale or lease that do not provide a mechanism for those who are visually impaired or blind to have the content of the website read to them. In order to have this functionality, among other methods, what is technically referred to as a “widget” (or “plugin”) can be installed by the website host.
Typically, after a “tester” visits the website to confirm the noncompliance, organizations such as Victim’s Awareness Inc. will send a demand letter including a letter of explanation, demand for evidence preservation, and a draft copy of the to-be-filed federal lawsuit and complaint demanding that the association immediately retrofit its website to ensure equal access by the visually impaired and blind. It is explained that failure to do so guarantees a lawsuit will be filed in Washington, D.C., against the association. Typically, this type of lawsuit is extremely expensive to defend. If liability results, the damages can easily be in the tens, if not hundreds, of thousands of dollars. However, it should also be recognized that these claims are so recent that there are many questions surrounding them which have not, as yet, wound their way to a judicial conclusion, such as whether the plaintiff has legal standing to bring the claim in the first place. That said, based on other legal precedent, it is likely that “standing” would be found.
Assuming that an association does not want to enter into a potential protracted legal battle—sadly, even immediate compliance may not be sufficient to avoid monetary penalties—the demand brings about the desired change, but the would-be plaintiff (in this case, Victim’s Awareness Inc.) argues that they are entitled to their attorneys’ fees and costs for their preparation of the demand letter, preservation of evidence demand, and draft complaint. Therefore, even if an association complies with the demand by making its website accessible to those who are visually impaired, Victim’s Aware-ness Inc. asserts that its attorneys’ fees and costs will need to be satisfied. If an association refuses, then, even though the website is now FHA compliant, Victim’s Awareness Inc. suggests that they can still file the lawsuit to collect its attorney’s fees and costs.
Because a discrimination lawsuit is one of the few areas where board members can have individual liability, it is likely that most associations will fold their hands and agree to the would-be plaintiff’s demands. It will be interesting to see the results should an association decide to fight such demands on the basis that the FHA also provides that reasonable modifications must be granted by an association in response to a handicapped person’s request so long as the modification is paid for by the person making the request. It remains to be seen whether such an argument could pierce the demands made by groups such as Victim’s Awareness Inc.
A community association risks being in harm’s way when it operates a website that promotes sales and leasing activities and is open to the public at large. In addition, even if the association’s website is password protected and for members’ use only, if the website is used to promote housing for sale or lease within the association, then such a website could be at risk as well. This is because a disgruntled member could share the username and password with Victim’s Awareness Inc. or a similar organization. Such person could even bring the claims through retention of their own attorney.
In this instance the old adage remains true: “An ounce of prevention is worth a pound of cure.” To find additional information on the “widget” or “plugin” to bring your website into compliance and to learn more about this issue, you can visit www.userway.com. In addition, consider discussing this important matter with both your association’s website host and attorney.
Partner, Kaye Bender Rembaum
Attorney Jeffrey Rembaum has considerable experience representing countless community associations that include condominium, homeowner, commercial, and cooperative associations throughout Florida. Every year since 2012, Mr. Rembaum has been inducted into the Florida Super Lawyers. Together with his partners, attorneys Robert Kaye and Michael Bender, their law firm, Kaye Bender Rembaum, is devoted to the representation of community and commercial associations throughout Florida. Kaye Bender Rembaum, with 17 lawyers and offices in Palm Beach and Broward Counties, strives to provide their clients with an unparalleled level of personalized and professional service. For more information, visit kbrlegal.com.