Answer: This is a very cutting edge issue which has been thrust to the forefront in Florida due to the recent adoption of the medical marijuana amendment to the Florida Constitution. Secondhand smoke is a legally recognized nuisance, and it is quite common for associations to prohibit smoking on the lanai and other places because the smoke drifts into other units.
The Fair Housing Act requires associations to grant reasonable accommodations to persons with handicaps or debilitating medical conditions. A reasonable accommodation is an exception to a particular rule. In this case, the person would seek an exception to the no smoking rule so they could smoke legal medical marijuana. While this is a new legal issue and I am sure there will be more to come, my initial opinion would be that the board would not be required to grant an exception to the no smoking rule in this case.
The critical issue is whether the requested accommodation (I want to smoke medical marijuana on the lanai) is reasonable. First, the smoke in general is a nuisance, and in the case of marijuana may have an intoxicating effect, even secondhand. I think this is called a contact high. Second, there are other locations the person may be able to smoke, such as inside the unit, which will not affect others. Third, medical marijuana I believe can be ingested in other non-smoke producing forms. Finally, under current federal law, medical marijuana is still illegal. So for these reasons, at this early stage of analysis, I do not think an association would be required to grant an exception to a no smoking rule to allow the use of medical marijuana.
Question: What is the potential liability to a condo association when it comes to the various taxes that come due from the income members derive from leasing their respective condos? In other words, if the association is a bit lax in its lease approval process, could it be liable for the collection of such taxes in the event of a member not following through with respective tax collection and forwarding it to the respective tax agency? – J.C., Delray Beach
Answer: The obligation to pay the income tax and hotel bed tax and any other taxes derived from an owner leasing their unit is the owner's. The association would not have any obligation to pay such taxes.
Question: I am the treasurer of my homeowners association. Our budget is more than $500,000 a year. We have voted to waive the requirement to do an audit for the last two years and are planning on doing it again this year. Someone has told me that after waiving three years in a row we will be required to do an audit. Is this true? – R.R., Stuart, FL
Answer: No. However, if you were a condominium or a cooperative, the answer would be yes. Let me explain. Condominiums, cooperatives and homeowner associations are all required to do a certain level of year-end financial reporting depending on the amount of their annual revenue and number of units or parcels. Associations with revenue below $150,000 or fewer than 50 units or homes are required to do a report of cash receipts and expenditures. Revenue of $150,000 to $300,000 requires a compilation. Revenue of $300,000 to $500,000 requires a review and above $500,000 an audit.
A majority of members in the association voting at a meeting can waive the statutory requirement and choose to do something less. In a condominium and cooperative, the vote to waive can be done up to three years in a row, but in year four the association must prepare the report required based on the amount of revenue. In a homeowners association, there is no limit on the number of years the members can vote to waive the year-end report.
Richard D. DeBoest II, Esq., is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, PLLC or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.
Editor's note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC., respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.