By Deborah Goonan, Independent American Communities
Should Florida condo owners be fined and potentially sued by their association for posting a video recording of a meeting on YouTube? Or do owners have a First Amendment right to publish condo meetings?
That’s the latest legal question to be tested in the Sunshine State.
The dispute began when two owners of condo units in Key Biscayne, Matt Bramson and Maria Bueno, videotaped an association meeting in January. Both owners were candidates for the annual condo board election, which did not take place on January 7, 2019, as planned, when the board failed to meet quorum requirements.
Only four board members attended the meeting to discuss an election dispute. However, condo bylaws require at least five directors in attendance to meet quorum, so no official business could be conducted at the meeting.
However, attendees and board members engaged in a 37-minute discussion about distribution of candidate information sheets prior to the election.
Bueno posted two videos of that nonofficial January 7th meeting on YouTube. Bramson and Bueno say it’s the best way to keep their fellow unit owners informed, since many of them cannot attend meetings.
But board member Antonio Camejo objects to posting meetings of EmeraldBay Association. He tells a local reporter that putting videos on YouTube transforms a private association’s meetings into public meetings.
Board President Jorge Cavalier agrees. In March, Cavalier wrote a letter to Bueno on behalf of EmeraldBay Association, demanding that the videos be taken down from YouTube immediately.
The letter says that both videos make defamatory statements about two board members, but doesn’t cite specific examples.
Cavalier threatened legal action if the unit owner refuses to comply. The Association board recently passed new rules that forbid members from distributing recorded meetings to non-members of the condominium.
Bueno says that Florida law allows members to record association meetings. She also insists she has a first amendment right to post YouTube videos.
Florida law on recording of condo association meetings
Here’s the relevant part of Florida’s Condominium Statute. I’ve emphasized two sentences.
In bold, you can see that state law clearly gives a unit owner the right to tape record or videotape meetings.
In italics, note that the division (in the Department of Business and Professional Regulation – DBPR) adopts reasonable rules with regard to recording meetings.
Board of administration meetings.—Meetings of the board of administration at which a quorum of the members is present are open to all unit owners. Members of the board of administration may use e-mail as a means of communication but may not cast a vote on an association matter via e-mail. A unit owner may tape record or videotape the meetings. The right to attend such meetings includes the right to speak at such meetings with reference to all designated agenda items. The division shall adopt reasonable rules governing the tape recording and videotaping of the meeting. The association may adopt written reasonable rules governing the frequency, duration, and manner of unit owner statements.
Here’s the division’s official rule, which provides conditions for unit owners who wish to record or videotape a condo association meeting. Notice that the rule is silent on the matter of a unit owner’s right to share recordings or videotape on social media.
(10) Any unit owner may tape record or videotape meetings of the board of administration, committee meetings, or unit owner meetings, subject to the following restrictions:
(a) The only audio and video equipment and devices which unit owners are authorized to utilize at any such meeting is equipment which does not produce distracting sound or light emissions.
(b) If adopted in advance by the board or unit owners as a written rule, audio and video equipment shall be assembled and placed in position in advance of the commencement of the meeting.
(c) If adopted in advance by the board or unit owners as a written rule, anyone videotaping or recording a meeting shall not be permitted to move about the meeting room in order to facilitate the recording.
(d) If adopted in advance by the board or unit owners as a written rule, advance notice shall be given to the board by any unit owner desiring to utilize any audio or video equipment.
(e) Unit owners are entitled to tape record or videotape board meetings and committee meetings occurring on or after April 1, 1992.
The First Amendment debate rages on
Owners and residents of condominiums in the US usually assume they have a Constitutional rights under the First Amendment, which states:
Many attorneys working for HOAs will insist that condominium (and cooperative and homeowners) associations are not “government,” but private organizations — most of them nonprofit corporations.
For example, Florida community association attorney Ryan Poliakoff argues that members and residents of association-governed communities aren’t entitled to First Amendment rights, which only apply to government.
And in Illinois, where condo statute expressly states that association rules cannot abridge First Amendment rights, one Chicago attorney has appealed two Appellate Court rulings to the state Supreme Court.
Diane Silverberg, on behalf of board members for 111 East Chestnut Condo Association, insists that it’s a mistake to interpret state law as a protection of free speech rights of unit owners.
The Illinois Supreme Court has already rejected one of the two petitions, signifying that the courts may be moving away from their long-held stance that HOAs are not state actors or quasi-governmental entities.
Florida attorney fascinated by First Amendment issue
Attorney Dana Robin Goldman, who also serves as a Commissioner for Sunny Isles Beach, thinks that EmeraldBay Association’s new rules against posting recorded meetings on social media goes too far.
As Goldman explains, in an article by The Key News, although a condo association has a right to make reasonable rules, the matter of fining condo owners for publicizing recorded meetings hasn’t been tested in court.
The Miami real estate attorney said that the courts will have to decide whose interests come first: the condo-HOA’s interest in privacy, or the unit owner’s interest in preserving Constitutional rights under the First Amendment.
She says she plans to discuss the topic of free speech and free press rights in future condominium workshops. ♦
Condo Adopts Gag Rule To Block YouTube Videos (CCFJ)
Article Courtesy of The Key News, By Tony Winton, Published June 12, 2019
2 KB Condo Owners Threatened Over YouTube Video
Tony Winton. April 15, 2019 (Key News)