NUISANCE BARBEQUE

ANSWER: The board has a duty to investigate and take appropriate action if it determines the smoke constitutes a nuisance under the nuisance provision of the CC&Rs. It does not matter that the nuisance originates outside.

Open Flame Devices. In addition, the barbeque grill may be a violation of California Fire Codes §308.3.1 and§308.3.1.1, which were adopted by the state in 2007 and by various cities and counties in 2008 and 2009.CFC §308.3.1 states that all open-flame cooking devices (including charcoal & propane grills) may not be operated on combustible balconies or within ten feet of a combustible construction. The two exceptions are for (i) single and two-family dwellings (duplexes), and (ii) buildings that have installed automatic sprinkler systems throughout, including balconies and decks.

LPG Containers. California Fire Code §308.3.1.1 further restricts the use of Liquefied Petroleum Gas (usually propane) grills by prohibiting containers with a capacity greater than 2.5 pounds. The only exception is for single and two-family dwellings. In addition, propane containers with a capacity larger than one pound cannot be transported through enclosed common area stairs, hallways, or elevators. They must be transported into the unit through an exterior stairway.

Insurance. Even if your city or county has not adopted these codes, your board should contact the association's insurance broker to see if fire damage related to barbeques is insured. Some insurance carriers want to see barbeques (especially charcoal) gone from frame complexes altogether.

RECOMMENDATION. Boards should check with local fire codes, their insurance broker, and legal counsel and then draft appropriate restrictions on the use of barbeque grills and LPG containers.

NO SECONDS

QUESTION: If a director makes a motion, can he second his own motion?

ANSWER: No, the second must be from another director. (Robert's Rules, 10th Edition, p. 34.) If the motion fails for lack of a second, there is no discussion and no vote on the failed motion.

5% SPECIAL ASSESSMENT

QUESTION: Is the special 5% assessment restricted to any particular use? Our CC&Rs say it is for capital improvement, but I find nothing in Davis-Stirling Act with that restriction.

ANSWER: There is no restriction in the Act related to how a special assessment is used, only on the size of the assessment. Civil Code §1366. If your governing documents limit how board approved non-emergency special assessments are spent, you may be bound by those restrictions. Your board should have the association's attorney review the language in your governing documents and provide an opinion.

FREE SPEECH BULLIES

Feedback #1: It is amazing how the First Amendment has been perverted over the years. Does it not say "Congress shall make no laws . . ." That is, the unwashed masses have a right to speak out against their government (as distinguished from them not having the right to speak out against the monarch). The law does not apply to a private organization (e.g., club, business, or homeowner association). Also, let's not forget manners, civility, and social graces that apply everywhere but are neither taught nor practiced anywhere these days. I'll get off my soap box now. -Stephany Y.

Feedback #2: I find it amazing that so many American's have such a misguided understanding of "Freedom of Speech." Perhaps in bringing enforcement against these more often than not, bullies, they might view the board's fining them and ejecting them from the meeting as our right to the pursuit of happiness! -Vicki M.

COMMENT. Free speech bullies seem oblivious to their own bad behavior, or worse, revel in it. Boards should always listen to membership concerns and be patient with members who get emotional. However, boards do not have to put up with abusive behavior, harassment, personal attacks, obscenities, and threats. There is no "First Amendment right" to such behavior and persons who engage in it can be ejected from meetings and, following due process, fined. If necessary, boards can seek restraining orders.


 Sincerely yours,

 Karen Nagad, Esq.
 Adams Kessler PLC