On September 10, Broward County Commissioners adopted changes to the local Human Rights Ordinance after hearing testimony of community leaders largely united in opposition thereto.
BrowardCounty’s Human Rights Ordinance already prohibited discrimination in housing and employment practices. It already included protections beyond the Florida Statutes and Federal Law. For example, the Ordinance prohibits discrimination based on marital status, sexual orientation, political affiliation and gender identity, while none of those classifications are included in the state or federal statutes. Condo and HOA associations are already expected and must comply with prohibitions against discrimination in the terms and conditions, including sale, use or occupancy, of housing.
The new changes really only establish two new requirements for community associations in connection with the screening process (sale and lease approvals):
- The association must acknowledge receipt of the application in writing and say whether it is complete or not within 15 days of receipt; and
- If the association denies an application, within 45 days it must send a written notice saying why.
Since most community documents require the association to respond within 30 days, the timing of a denial letter shouldn’t be a problem. While the required acknowledgement of receipt of an application is likely a shorter timeframe, a simple form letter to send automatically should be sufficient. There are very limited reasons to justify denying an application, so you would think that really shouldn’t be too problematic either. However, these requirements subject the association’s decision making process to scrutiny and create additional paperwork that some communities aren’t equipped to handle. What association isn’t facing enough scrutiny already?
An association typically denies an application based on the application itself or information obtained from an investigative report. That is personal, sensitive information. Federal law prohibits the association from disclosing anything in a credit or investigative report. The letter notifying prospective buyers or tenants they are not approved as a result of a negative investigative report becomes an Official Record and which may be subject to inspection by owners, so the association arguably has to violate federal law to comply with Broward County’s law if your explanation of the reason for disapproval goes into any detail at all. That doesn’t make sense to me.
Sometimes the association bases its decision on subjective factors. Say an applicant skips an interview appointment, then arrives half-hour late for the next appointment, parks in an owner’s spot and is obnoxious to the office staff. Say you find out that the applicant owns a 100 lb. Rottweiler but says the dog will stay inNew York while the new owner enjoys the cold winter months inFlorida. You may have a good reason to reject those transactions but doing so certainly opens the door to criticism. Of course, association rights in these circumstances are limited by the governing documents. Assuming your association has the right to disapprove, where is the right place to draw the line?
One thing I know for sure, association directors (or managers) should contact their attorneys to make sure they stay firmly planted on the tightrope between complying with the Ordinance and divulging information that should be kept confidential. Community associations may have to revamp their screening procedures by amending their declarations, revising the applications themselves and adopting specific guidelines. Associations will need to carefully train anyone that is involved in the screening process. That includes the person at the front desk or the security guard or the parking attendant or the child of the president who may receive a package. It also includes the person who opens the package and the person who orders the background report. The person conducting interviews and whoever issues correspondence on behalf of the association must be well trained. Someone has to be responsible to ensure all of these individuals are being thorough and processing the application in a timely manner.
I don’t believe anyone would disagree that ferreting out discrimination is a laudable goal. You’re kidding yourself if you believe discrimination does not occur inBroward County. There is already a huge body of law on what constitutes discrimination and there are no impediments to bringing claims or lawsuits against associations based on discrimination, despite the fact that associations are not required to disclose the reasons an application is rejected. If a claim is made, the association is on the hook to show it acted on a non-discriminatory basis. Moreover, anyone believing they have been discriminated against has an advantage in that they can turn to a governmental agency to file a complaint. They do not have to fork out money to hire private counsel, while the association is on its own.
Implementation of well-intentioned laws often create undesirable outcomes that are not contemplated when the law is enacted – this may be one of those laws.