Rembaum's Association iRoundup

Siegfried, Rivera, Lerner, De La Torre & Sobel P.A.

 

Can we still publish our membership directory?

 

 

 

Effective July 1, 2010, in the context of which documents are not subject to a member's official record request both the Condo and HOA Acts provide that, "Notwithstanding the provisions of this paragraph the following records are not accessible to members or parcel owners: social security numbers, driver’s license numbers, credit card numbers, electronic mailing addresses, telephone numbers, emergency contact information, any addresses for a parcel owner other than as provided for association notice requirements, and other personal identifying information of any person, excluding the person’s name, parcel designation, mailing address, and property address." See 718.111(12) and 720.306 Florida Statutes.


The question is whether these prohibitions only apply to a member's official record request or is the new provision meant to be interpreted more broadly in light of the phrase, "Notwithstanding the provisions of this paragraph" to mean that the association cannot publish the phone numbers and email addresses of its members?  If you believe so, you'd best "STOP THE PRESS." Sadly the answer is anything but clear.

 

 

On the one hand, there are those who assert that because the the prohibition against publication is provided in the context of the legislation that pertains to responding to a member's request for official records, the prohibition against publishing the phone number and email address is limited to that circumstance. Most likely these are the same folks that enjoy rock climbing and race car driving.

 

On the other hand, these are those argue that the phrase "Notwithstanding the provisions of this paragraph the following records are not accessible to members or parcel owners" means that the prohibition against publication should be construed more broadly and applies to all circumstances. Most likely, these are the same folks who enjoy knitting and reading "Gone with the Wind" for the twentieth time when they took a pass on free tickets to go to the World Fair, because they feared an accident on the way. (No disrespect intended to either those who knit or those who have read Gone with the Wind for the twentieth time).

 

Clearly there must be some middle ground. Thankfully,  both rock climbers and knitters can have their cake and eat it, too.  While the community can clearly still publish its directory,  if you want to be on the conservative side, the phone numbers and email addresses should not be included unless the association has gained the consent of the member to do so.  To obtain the consent of each member whose phone and/or email address you intend to publish you could have each member sign a consent agreeing to the publication. Alternatively, the association could amend its governing documents to include a provision that membership in the community automatically means that the member consents to having their phone number and email address published. unless the member informs the association, in witting, otherwise. Of course, if the amendment is adopted, before you publish the directory, the association should provide each member the right to opt out. In any event, all such membership directories should include a disclaimer that the directory is not for release outside of the community or for solicitation purposes to protect the privacy of the members.

 

As the rock climbers will tell you, the remedy for a violation would most likely be in the nature of injunction relief. This means the member asks the court to order the association to remove and not further publish their name and email address. Of course there are prevailing party attorney fees to consider, too. 

 

I will leave with this thought to ponder, what if the member's phone number appears on the entrance gate system? Hmmmmm  

 

 

HAPPY THANKSGIVING

 

 

I hope you have a wonderful Thanksgiving. Remember to take a private moment to reflect on those things for which you are truly grateful.

 

 

 

 

ABOUT OUR FIRM

 

Since 1977, the attorneys at Siegfried, Rivera, Lerner, De La Torre & Sobel, P.A. have served as a driving force in South Florida law by meticulously attending to each client’s goals while adhering to the ethical standards of our profession.

We pride ourselves on the uniquely personalized professionalism we bring to every facet of our work for community and commercial associaitons throughout Florida, construction and real estate matters. Please visit www.siegfriedlaw.com to learn more.

 

 

Jeffrey A. Rembaum is a partner with the law firm of Siegfried Rivera Lerner  De  La Torre & Sobel, P.A., in downtown West Palm Beach, Florida whose practice consists of representation of condominium, homeowner and commercial associations, exclusive country club communities as well as the developers who build them.  He is a regular columnist for the Condo News, a biweekly publication. If you would like to receive his future articles addressing community association topics, please send an email to “[email protected]” with your request.  

 

               Mr. Rembaum can be reached at:

 

Siegfried Rivera Lerner De La Torre and Sobel, P.A.

1675 Palm Beach Lakes Blvd, Suite 500

West Palm Beach, Florida 33401

(561) 296-5444 [email protected]

This column provides association boards, managers, and members useful information and tools necessary to exercise their reasonable business judgment to insure the smooth operation of their association. Always consult with an attorney before taking action as this column is NOT intended as specific legal advice.


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