MASKS REQUIRED TO
QUESTION: Some residents do not wear masks while walking or riding their bikes. One owner asked the board to mandate that anyone walking or riding in the development wear a face covering. Can this be mandated or just recommended? -Marion A.
RESPONSE: If the board adopts emergency rules, it can mandate the wearing of masks while riding bikes. However, if I were on the board, I would vote against it. Some things don't make any sense. This is one of them.
Being in close contact with others is the problem, especially indoors. Riding a bicycle does not put members in close contact with others. The same is true about walking outdoors. If residents keep their distance from others, a mask is not necessary. If they stop and talk to someone at less than six feet, they should put on a mask.
Everyone needs to use common sense. Health guidelines advise against close contact with others. That means avoiding crowded areas and wearing a mask when physical distancing is not possible. That's because the virus is spread person-to- person when an infected person coughs, sneezes, or talks and is within 6 feet of another person.
If boards wanted to, they could mandate that people wear a mask while driving their car in the development. I already see people alone in their cars with windows rolled up wearing a mask. It boggles the mind. Next, people will want boards to mandate wearing a mask to bed.
RECOMMENDATION: Boards should work with legal counsel to adopt sensible emergency rules.
QUESTION. Members are pressuring us to open the pool but we are afraid to because of the spike in the coronavirus and possible liability if someone catches it and blames us. How can we open the pool without getting sued? -Jim B.
RESPONSE: The only way to avoid litigation is to set up barricades around your association to create an autonomous zone and declare yourselves a separate nation--the HOA Nation. Then, you are no longer under State or County orders.
Sovereign Immunity. You can then decree that no members can sue your new nation for any harm related to the coronavirus (sovereign immunity). Other than that, I don't see any way to stop someone from hiring a hungry lawyer and blaming the association for whatever ills might befall them.
Causation Problem. However, as I've noted before, the likelihood of someone suing is remote since proving causation may be next to impossible. The person would have to prove (i) they got the virus from the pool area and (ii) it was due to the association's negligence.
RECOMMENDATION: Boards have two options: keep their pools and other amenities closed, or follow published guidelines for reopening (and have residents sign a release). As I pointed out in previous newsletters, some of the County guidelines are reasonable and doable, while others are impossible for small associations to comply with. Some of our elected officials are completely devoid of common sense and have put association boards and members in a no-win situation. To navigate the mess, boards need to talk to their legal counsel.
QUESTION. Can a board discuss and create guidelines for pool reopening through a series of email exchanges and then ratify them at its next open meeting via teleconference? -L.K.
RESPONSE: Boards are not supposed to hold closed meetings. Making decisions via email qualifies as a closed meeting. The Open Meeting Act does not allow for email discussions and decisions except in emergencies. A video or teleconference meeting can be scheduled, the matter discussed, and decisions made in the open without violating the statute.
Face Mask Signage. As you know, the Governor has mandated the use of facial coverings. Are boards required to post signage to that effect, including social distancing mandates, at lobby entrances and elevators? -Odette E.
RESPONSE: Signs are required for pool facilities (stay home if sick, maintain social distancing, wash your hands, etc.). I am not aware of any orders regarding signs in lobbies and elevators. Boards can adopt their own emergency rules regarding face masks and post signs if they so choose.
Over the Cliff. Adrian, I think you've gone over the cliff with HOA duties to end harassment of protected classes. We are not housing providers; we are a 55+ community with each resident owning their own property. Everyone living here could be considered a protected class. This is one more reason why no one wants to sit on an HOA board. They are not the police, and should not have to be the neighborhood nanny. How about people taking personal responsibility and getting their own attorney and a restraining order? -Mike S.
RESPONSE: I didn't say I agreed with HUD; I simply reported our new reality. In prior newsletters I expressed dismay at the burden being placed on association boards.
State and Federal regulations are annually weighing down associations with regulations that drive up costs, create potential liability, increase the risk of litigation, and discourage owners from serving on boards.
My firm, other professionals in the industry, and Legislative Advocate Louie Brown are working with CAI's California Legislative Action Committee to persuade legislators to reduce some of those burdens. We will send out alerts as needed to let you know how you can help. The latest problem child is AB 3182, which I will cover in our next newsletter.
JOINS ADAMS | STIRLING
We are pleased to announce that Senior Attorney Nancy Shokohi joined our firm. Nancy is based in San Luis Obispo and will work with our clients along the Central Coast, from Santa Barbara to Monterey, and inland to Bakersfield.
Insurance Litigation. Prior to joining us, Nancy gained a wide range of experience as a partner in a mid-size law firm where she spent fifteen years specializing in insurance coverage analysis and litigation, primarily involving environmental contamination.
Non-Profits. Nancy has done legal work for many non-profits over the years. She assisted the Rotary Club, Big Brothers, Big Sisters, Women’s Shelter, the Mozart Festival, the Hearst Castle Board of Directors, as well as human trafficking non-profits to resolve legal issues and draft documents and letters.
We are delighted to have Nancy join our team. If your association needs legal services, contact us for more information.
NorCal Counties. Governor Newsom required counties that have been on the County Monitoring List for three consecutive days or more to close indoor dine-in restaurants, indoor wineries and tasting rooms, indoor family entertainment centers, indoor movie theaters, indoor zoos and museums, indoor cardrooms and indoor and outdoor brewpubs, breweries, bars, and pubs. As of July 1, 2020, this covers Contra Costa, Fresno, Glenn, Imperial, Kern, Kings, Los Angeles, Merced, Orange, Riverside, Sacramento, San Bernardino, San Joaquin, Santa Barbara, Santa Clara, Solano, Stanislaus, Tulare and Ventura Counties.
Alameda County has paused their reopening. In addition to the restrictions noted above, Contra Costa County is pausing its reopening of personal services not involving close contact with the face, gyms and fitness centers, limited indoor leisure activities, and hotels.
Mono County has new face covering guidance and modified operating rules for bars. Sacramento County has a new order that removes bars from the list of allowable activities. Santa Cruz removed beach restrictions.
SoCal Counties. Los Angeles County updated swimming pool and tennis/pickleball protocols that have employees onsite adding reporting requirements in the event of 3 or more positive Covid-19 cases in 14 days. The County ordered temporary closure of beaches from 7/3 to 7/6 and prohibited fireworks. It issued new guidance on face coverings. Both the County and City closed bars.
Orange County closed bars that do not offer indoor dining. Riverside County issued an order regarding bar closures for those establishments that don’t serve food.
San Diego County closed bars that do not offer indoor dining. Restaurants will be closing at 10 p.m. for new dining patrons and will close at 11 p.m. for all patrons.
Santa Barbara County closed bars that do not offer indoor dining. Ventura County beaches will be closed from July 3rd at 5:00 a.m. through July 6th at 5:00 a.m. Beach parking lots and restrooms will also be closed.
Updated Chart. For a list of County restrictions and links to Health Department Orders, see the chart is posted on our website. If we missed anything, please contact us.
Adrian, thank you for your newsletters and for providing this invaluable resource. Your examples and iterations highlight this problem. -Don
Adrian, I remain overjoyed that there are at least a few other lawyers who enjoy humor. -Joseph M.
Your disclaimer in the June 29th newsletter was just the icing on the cake to your fabulous advice and comic relief (and I always go for the corner pieces with lots of icing). Thank you for making legal advice fun to read (gosh did I just say fun?!) -Dena P.
|DISCLAIMER. Our newsletter provides commentary based on sketchy information we receive from readers. From time to time, we add a little humor. Some find it amusing. Others are appalled. Some readers are excited when they score free legal advice. Not so. Our newsletter provides commentary only, not legal advice. You need to pay real money for an attorney to review all the facts and give you a legal opinion. We do that too, but you have to actually hire us. It's okay, we're friendly. You can call us. Keep in mind we are corporate counsel to associations only.|| |