COVID-19 Security Issues
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  California's Leader in Community Association Law April 24, 2020
COVID-19
SECURITY ISSUES

Wi-Fi Jammers. Four burglars broke into our gated condo garage. We had wi-fi surveillance cameras which were all disabled with a wi-fi jammer. The device can disable any wi-fi camera within a 30-foot range. My advice is to hard-wire surveillance cameras or place wi-fi cameras at a greater distance from each other. -Guy T.

RESPONSE: With so many people out of work because of the shutdown, we may see an uptick in crimes. So far, Governor Newsom seems to be doing good job managing the crisis. He reacted much faster than New York's governor and we have not been impacted to the degree it has. Hopefully, he will loosen restrictions soon and allow people to return to work. If he doesn't, the economic crisis may overtake the health crisis.

Security Cameras with Signage. Are there any laws that pertain to using security cameras in an HOA setting? They are located at entrances and exits to our community and throughout the clubhouse. There are no signs showing that you are on camera anywhere in our community. Should there be signs posted by law? -Gary I.

RESPONSE:
Associations can install surveillance cameras in the common areas so long as they are not viewing areas where people have a reasonable expectation of privacy, such as restrooms, locker rooms, or the interior of an owner’s unit. (Penal Code §647(j).) I am not aware of any requirement that signs be posted. Cities have traffic cameras everywhere without signage. So do casinos and many businesses. Some businesses, however, prominently display signs as a deterrent. Associations can choose to either post warning signs, or not.

Internet Cameras. Do most boards deny access to homeowners to view internet security cameras? -Richard C.

RESPONSE: I don't know the percentages but I know some boards allow all members to view internet security cameras 24/7. It puts more eyes on the common areas so there is a greater opportunity someone will see something and report it.


Viewing Security Recordings. Do residents have a right to privacy regarding who or why someone can view footage from security cameras? -Dianna B.

RESPONSE: There is no right to privacy when someone is outside their unit where they can be seen by others. As noted above, some boards make video feeds available to all members 24/7. Others make it available on an as-needed basis. For example, a car is broken into and the victim wants to view footage from the security cameras, he/she is allowed to view the recordings.


Posting Photos. Our cameras took excellent photos of strangers breaking into vehicles in our garage. I’d like to post their photos at our entries with the word BEWARE. However, other board members are concerned that it may make us liable for defamation or the like. -Roswitha M.

RESPONSE: Yes, your board can post pictures. Instead of saying "Beware," the message should be "Can anyone identify this person? He is a person of interest in recent car break-ins." I once made this recommendation to the board of an association. There was concern that posting the photos in the common areas would reduce property values. I argued that security was more important. They posted photos and it led to the capture of the person. Members were grateful for the board's decision.

 
ENFORCING HEALTH
DEPARTMENT DIRECTIVES

I received a number of questions about health department directives. There continues to be confusion about the association's role in a pandemic. This is an example: "I am even more confused by yesterday's newsletter that the board cannot enforce state orders? Who does then?"

Compliance or Enforcement? There is a difference between compliance with health department directives imposed on associations and enforcing directives imposed on individuals. If associations are ordered to close their gyms, associations must close their gyms or face fines. If a county or city health department directs everyone to wear masks and practice social distancing, the order is directed at individuals, not associations. The issuing authority (state, county, city) is the enforcer of its directives, not boards of directors.

Imposing Fines. If someone walks their dog without a face mask, the association does not have the authority to impose a $1,000 fine on behalf of the county's health department. If an association wants to adopt its own emergency rules that residents wear a mask when walking their dog, it can do so, and levy a reasonable fine (after a noticed hearing) when members violate the board's emergency rules.

CDC Guidelines. If residents wear face masks and practice social distancing in an empty parking lot to sing songs, the board cannot impose fines on behalf of the health department. It can, if it so chooses, adopt its own emergency rules and impose its own fines. Boards can decide for themselves what rules they want to adopt related to their common areas. Requiring masks and social distancing in common area hallways, elevators and lobbies makes sense. Fining residents who wear masks, maintain social distancing and sing songs outdoors is not something I'm comfortable recommending. However, that is a decision for each association to make.

RECOMMENDATION: Boards should work with legal counsel to adopt emergency rules that make sense for their associations. Then, be ready to adjust them as health department directives and CDC recommendations change.

 
REOPENING
RECREATIONAL FACILITIES

Golf Course. We have a private golf course in our gated community. Can we use it if we maintain social distancing? We need the exercise. -Marty R.

RESPONSE: I understand that when faced with being sequestered with their wives or risk contracting the coronavirus, golfers play golf.

Whether an association can open its golf course depends on the county it's in. Some counties have ordered the closure of all golf courses. Here is an example:
All golf courses in the County of ****, whether public or private, and their ancillary use areas, which include but are not limited to parking areas, clubhouses, driving ranges, practice putting greens, and food and beverage service areas, are hereby closed effective immediately and shall remain closed until June 19, 2020, pending further Order of the Public Health Officer.
As discussed above, this is an order aimed at all organizations, including homeowner associations. As a result, boards have no discretion in the matter, they must close their golf courses. Once the order is lifted, boards will then have the discretion to open them or keep them closed. I suspect most will immediately open them.

QUESTION: We have residents complaining because our pools are still closed. Do you know when they will allow us to use them? -Erica H.

RESPONSE: As the state loosens restrictions, we will report them. For example, this Monday Riverside County reopened its golf courses. See news article.
Boards will need to pay attention to constantly-changing health directives. Those directives will be at three levels: state, county and city, and they are not always consistent. The most restrictive ones will generally apply. A county might lift restrictions on golf courses, but a city in that county might keep restrictions in place.
 
VIRTUAL
MEETING LEGISLATION

Currently, the Davis-Stirling Act requires a physical location where members can gather whenever the board holds virtual meetings. (Civ. Code §4090(b).) With stay-at-home orders in place, all board meetings in the state are being held by teleconference without designating a physical location. As such, all meetings are technically in violation of the statute.  

CLRC Memo. California's Law Revision Commission (CLRC) recognizes the problem and will consider a solution at its May 21, 2020 meeting. In an April 6, 2020 Memorandum, the Executive Director of the CLRC, Brian Hebert, noted that Governor Newsom issued executive orders that allow state and local government bodies to conduct public meetings entirely by teleconference, without a physical location for public attendance. Mr. Hebert believes it makes sense to allow common interest developments to use a similar approach whenever a pandemic emergency is declared.

Expanded Exception. After reading his memo, I contacted Mr. Hebert and suggested the CLRC expand the exception to include any natural disaster, such as wild fires and earthquakes. Over the past few years, huge wildfires have destroyed entire CID communities, scattering members to the four winds. Under those conditions, it is impossible for members to assemble in one location to monitor board meetings. Changing the statute to allow for all emergencies, not just pandemics, would provide needed relief.

Encouraging. Mr. Hebert said he would raise it with the Commission. CAI's California Legislative Action Committee (CLAC) will be working with the CLRC on this issue. It should be noted that the CLRC did an outstanding job when it undertook the very difficult task of rewriting the Davis-Stirling Act which went into effect January 1, 2014.

 

Very informative newsletter. -Paul Y.

Thanks for your awesome newsletter. -Randy W.

Thank you so much for these newsletters and answering my question about masks. You are a beacon in this storm. I'm working, of course. You can only imagine the craziness here and with the owners. -Helene S.

Thank you for continuing to update us during this crisis. -Lee D.

Thank you for your all your pro bono counsel on the tangled web of CC&R law. Your perspective is my saving grace. -Dino D.


 
Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC
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.

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