“We can’t get folks out of the pool!”
In light of Governor DeSantis’ Declaration of Emergency due to the COVID19 crisis, many community associations have had to take actions pursuant to their emergency powers set forth in Sections 718.1265 and Section 720.316, Florida Stats., such as closing their gyms and fitness centers, club rooms, swimming pools, tennis courts, dog parks, etc. Such actions, obviously, are not popular with some owners. What is a board of directors to do when certain members of the community simply ignore their directives?
First, remember that the statutes that grant boards of directors these emergency powers were drafted mainly as a way to deal with the response to Florida’s hurricanes and, as such, they do not provide a great amount of detail or guidance for boards of directors, community association managers, or attorneys on how they are to be applied. And, because the statutes are relatively new, the courts likewise have provided little aid or guidance in this regard.
Second, the Business Judgement Rule provides that a court will not second guess the decisions of boards of directors if they act on facts and circumstances according to the law and governing documents and upon the advice of professionals unless the directors are committing a crime, fraud, self-dealing or the like. Because COVID-19 is a demonstrable public health risk, if the board acts reasonably and in reliance on the advice of those competent in the field, they will be shielded from liability under the Business Judgment Rule.
Therefore, while community associations must do as best they can to act “reasonably” under the circumstances, what is reasonable to one is quite often unreasonable to another (and thus why we have lawyers). In absence of clear directives from federal, state, or local governments, the board of directors can only do its best to take what actions are necessary to protect the health and welfare of their owners. Closing amenities such as fitness centers and pools seems to be a reasonable, common-sense step to slow the spread of this highly-contagious disease, especially in light of the recommendations by health experts to enact social distancing, frequent hand-washing, protective clothing in hospitals, etc.
As for what to do in response to residents who violate the board’s orders to close amenities such as the fitness center or pool, remember that the association has no police powers. Board members and managers can advise residents of the ban but should not under any circumstances engage in extended confrontations or attempt to physically confront anyone violating the board’s directives. Simply make note of the name of the person(s) in violation, the date and time, and refer the matter to the full board for fine, suspension of use rights, or whatever other action is appropriate under the circumstances.
If the resident’s conduct is so severe such that it may violate governmental emergency orders, then contact public health and law enforcement authorities.