VOLUME 3 - ISSUE 12 LEGAL UPDATE

- Florida Apartment Association Names Jeff Rogo And GMS Group As Governmental Affairs Directors
- When To Call The Police On Children
- The Occupant Is Unauthorized But Is Not Causing A Problem
- Gary Scarboro Named Executive Vice President of Apartment Association of Greater Orlando – Press Release
- Retaliation Is Prohibited

 

 

FLORIDA APARTMENT ASSOCIATION NAMES JEFF ROGO AND GMS GROUP AS GOVERNMENTAL AFFAIRS DIRECTORS

The Florida Apartment Association (FAA) has retained Jeff Rogo and GMS Group to serve as FAA Government Affairs Directors managing the government affairs activities of the FAA. Jeff will be the primary governmental affairs contact for the FAA leadership and the association’s lobbyists in the Ronald L. Book firm. Jeff and GMS Group will be replacing Gary Scarboro who has been named Executive Vice President of the Apartment Association of Greater Orlando. Building upon the foundation laid by Gary Scarboro, this will be a great addition to the Florida Apartment Association and take the governmental activities of FAA to new heights.

The GMS Group and its founder, Nena Gang, have been providing management services for the Bay Area Apartment Association (BAAA) for nearly twenty years. The services range from meeting planning and publications to the maintenance of financial records and working with the Board of Directors and committees. In January 1999, Jeff Rogo joined the GMS Group, and government affairs services were introduced with the focus on “building relationships and sharing information”. Now, with eight years of apartment industry experience, the GMS Group and Rogo have been selected to manage the government affairs activities of the Florida Apartment Association. Rogo will be the primary government affairs contact for the FAA leadership and the association’s lobbyists in the Ronald L. Book firm.

Rogo salutes his predecessor, Gary Scarboro, who launched the FAA government affairs program two years ago. This month, Scarboro assumed the position of Executive Vice President for the Apartment Association of Greater Orlando.

Jeff Rogo also serves as Government Affairs Director for the Tampa Bay Chapter of the National Association of Industrial & Office Properties (NAIOP) and the state legislative organization, NAIOP of Florida. NAIOP members and commercial real estate developers deal with many of the same issues and concerns as developers, owners, and managers in the apartment industry. Common statewide issues include: the rising cost of property insurance, the disproportionate assessment of property taxes, and no-growth initiatives like Florida Hometown Democracy.

Rogo has represented the Bay Area Apartment Association and a variety of organizations such as the Pinellas County Rental Housing Workgroup, the Tampa-Hillsborough County Human Rights Council, the Clearwater Regional Chamber of Commerce Government Affairs Committee, and the Tampa Bay Regional Coalition. He intends to apply his coalition building skills to further the interests of the members of the Florida Apartment Association.

Rogo has a Bachelor of Arts degree from John Carroll in History and an MBA from the University of Tampa. He currently lives in St. Petersburg and serves on the city's Planning & Historic Preservation Commission. Rogo has 15 year experience in the radio broadcasting industry, worked for the Associated General Contractors of Mid-Florida, and as the Alumni & Development Director for Jesuit High School in Tampa.

In June 2006, Rogo volunteered with the International Executive Service Corps and conducted advocacy training for small and mid-sized enterprises in the Republic of Georgia. This three-week project was funded by the U. S. Agency for International Development. He worked on a similar project in another former republic of the Soviet Union in 2003 and 2004. Spending ten weeks in the Republic of Armenia, Rogo offered ideas and advice on constituency building and advocacy. In his free time, Rogo enjoys tennis, travel, and photography.

 

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When To Call The Police On Children
by Harry Anthony Heist, Attorney at Law

A child starts a fire in the playground, climbs on the roof, sprays graffiti in the laundry room, and hits another child. What do you do? Probably speak to the parents. The usual outcome is a complete denial by the parents that THEIR child could be involved in such behavior, and possibly the child’s behavior improves or gets worse. Rarely if ever are the police made to be involved, as you know the police usually will not do much anyway, and proof issues are tough. Ironically though, if a 45-year old man engaged in the same or similar activity as the child, you would be on the phone calling 911, and you would be pushing the police to arrest the man and pressing charges. Why the disparate treatment? The same child that caused the original problems may eventually burn the place down or shoot a child in the eye with a BB gun. Now YOU were on notice, and YOU did not do anything earlier. Liability? You bet!!

Why call the police?

The reason the police should be called is to clearly document the occurrence and impress upon the child and the parents of the child the gravity of the child’s actions. In most cases no arrest will be made, but often the police will speak to both the parents and the child and put a level of fear into both. By calling the police, you are showing that you consider the matter important and are building a paper trail. If the matter is serious enough, the child will be arrested.

When to call the police

Whether the police are called out to the property will depend upon the action of the child. Obviously, calling the police for every incident large and small will result in the police eventually ignoring your calls and potentially a discrimination claim by the parents that you are engaged in familial status discrimination. The hard part is to determine when it is appropriate to get police involved and when the matter should be handled in-house.

Property Damage or Theft

Commonly children engage in vandalism on the premises. This may include vandalism to property belonging to the apartment community or property belonging to other tenants. The vandalism may be slight; for instance the child breaks out a light bulb or pulls a shrub out of the ground or starts a small fire in a garbage can. The vandalism is more serious when a significant amount of damage occurs on the premises or to another tenant’s property. In some cases you will be dealing with theft of property belonging to the apartment community or another tenant.

Damage to or theft of another tenant’s property

It is our opinion that in any case where a child damages or steals another tenant’s personal property, the police need to be called and this treated as any other serious crime on the property, no matter how small the incident may seem. Usually the victim will not want to press charges. The police will defer to the victim’s wishes, but the paper trail has been started, and the victim knows that you consider the tenant’s personal property important. Failure to take definitive action could result in the victimized resident using this incident as a way to break a lease.

Damage to apartment community property

A policy needs to be set whereby the property manager can decide if the damage warrants calling the police or just speaking with the parents and serving the Seven Day Notice to Cure. This policy can be based upon a monetary limit or the type of damage involved. Toilet papering the balcony would not warrant police action, while graffiti with paint or some difficult to remove substance certainly would. Discharging a fire extinguisher is an illegal action, and we feel this warrants police involvement. Breaking light bulbs with rocks may seem slight, but if some other tenant is the victim of a criminal act because the crime area was not well lit following the prior vandalism, you can see the severity of a child breaking a light. In many instances of property damage, the damage is reported to you by other children. While their testimony often will not hold much weight, the child may admit to the damage. You might choose not to get police involvement, but rather serve the parents with a Seven Day Notice to Cure, charging the parents for any costs related to repairing the damage.

Theft of apartment community property

Not a week goes by when we do not have a case in which a child decides to take a golf cart on a joy ride throughout the premises. Usually the maintenance tech has left the key in the switch, and the temptation is just too great. We recommend calling the police if a child uses a golf cart without permission and/or causes damage with or to that golf cart. If an adult did it, you would want them put in jail. Don’t be so easy on that “future” car thief.

Actions which do not rise to the level of criminality

Children often engage in behavior such as climbing on the buildings, skateboarding down railings, using the pool after hours or throwing the pool furniture into the pool. These actions would usually warrant a Seven Day Notice to Cure rather than police activity.

Actions of a sexual nature

Rapes and attempted rapes or sexual molestations occur on a regular basis in apartment communities and condominiums. Often you hear about something occurring through the grapevine. There are a huge number of children who engage in sexually inappropriate behavior, sometimes with the consent of the victim. These matters are extremely important to deal with using the police, even if just based on a rumor or one child’s word against another. Often the police will make an arrest if the child admits to the action or there are enough witnesses. Insisting on a police report is crucial, as the police report will include the statements made by the child, which your attorney can then use against the child later in court upon subpoena of the police officer. A child who commits sexually inappropriate behavior on the premises has a serious problem which usually does not go away. but instead worsens.

Use of firearms or weapons

Any use of firearms, weapons or projectile shooting equipment should immediately result in police action. A child who shoots a BB gun off the balcony at other persons, property or animals has absolutely no regard for the seriousness of his actions, and this needs to be dealt with swiftly. BB guns, paint ball guns, sling shots and other common weapons are given to children as gifts on a regular basis. They are fine on the 5-acre farm but completely inappropriate and potentially illegal and deadly when used on the premises of an apartment community. Will the child be arrested? Probably not, but this is a serious matter. A report must be created, and potentially the tenant will be evicted if your attorney advises this action.

Suppose the police do nothing?

Often the police will do absolutely nothing other than maybe speak to the parent or child. You need to insist that at a bare minimum some report is written up, other than simply a visit log that the police normally will have if they respond to the site. Even though the police may do nothing, the property manager MUST serve their Seven Day Notice to Cure, or in rare cases, the Seven Day Notice of Termination. Your attorney will assist you in wording the notice to avoid any danger of it appearing that you are engaged in some sort of discrimination.

At a bare minimum, make sure the parent or guardian of the child involved is served a Seven Day Notice. Never stop at a long lecture or a warning letter. Whether it is a Seven Day Notice to Cure or a Seven Day Notice of Termination will of course depend upon the circumstances, and most importantly the advice of your attorney. Many property managers become frustrated when they believe a child’s actions merits a termination notice and eviction, when their attorney advises against a termination notice. Trust your attorney’s judgment on this. Most property managers have no clue how difficult noncompliance cases can become or the financial consequences of losing the noncompliance case. An Agreement to Vacate may be another possibility, and your attorney will be able to best advise you.

 

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THE OCCUPANT IS UNAUTHORIZED BUT IS NOT CAUSING A PROBLEM
by Harry Anthony Heist, Attorney at Law

At any given moment, people who are not authorized occupants or tenants on a lease are living in an apartment with the authorized tenant. This is just a fact of life. Possibly the occupant is there on a temporary basis or just has decided to move in with the tenant. Often the occupant is there for a long period of time, uses the amenities, makes repair requests, stops by the office and pays the rent and acts just like an authorized occupant or tenant. The unauthorized person become familiar to staff, and many of the staff members have no idea the person is not in fact authorized.

The tenant and the unauthorized occupant

A tenant who allows an unauthorized occupant to reside on the premises is in default of the lease and is blatantly disregarding the terms of the lease. That tenant is no different than the tenant who gets the unauthorized pet, parks improperly, causes a disturbance or does not pay rent. They are in default, pure and simple.

Why do we treat the unauthorized tenant lightly?

Usually if a property manager is not dealing with a HUD property or Low Income Housing Tax Credit Property, an unauthorized occupant is overlooked. If the tenant is paying the rent, the property is kept up, there are not an excessive number of tenants in a unit, occupancy is low, and parking is adequate, a property manager will overlook the unauthorized occupant.

The huge danger of overlooking the unauthorized occupant

An unauthorized occupant is living on the premises without having gone through the normal credit or criminal background check. He or she may have an extensive criminal record, or even be a sexual offender or predator. The property manager has no idea of this and would have almost certainly turned this person does under normal application screening procedures. Nevertheless, the mystery person is now living on the premises.

The unauthorized occupant is locked out and needs to be let in

One of our clients recently had a situation in which a woman that the maintenance tech recognized needed the maintenance tech to open the apartment in the early morning hours, as she had locked herself out. Since she was familiar looking to the maintenance tech, as she had lived on the property for quite some time, he opened up the apartment for her. She then decided to remove everything of value from the apartment. Later that day, the actual tenant came home to find all his items of value taken, and the maintenance tech admitted he had let the woman in the night before. Problem? She was not an authorized occupant, and maintenance had no right letting her into the unit. Liability? What do you think?

A recent tragic case underscoring potential liability

Here is the scenario. This same scenario can apply to a tenant renting in a condominium or single family home. An unauthorized occupant becomes familiar to the staff and has resided on the property for some time. The unauthorized occupant kills another tenant in the apartment community. Is the apartment community liable? Over the next couple years, this exact case will be tried and a jury will decide. How would you decide?

Our recommendations

We strongly urge that you take an unauthorized occupant seriously and consider it a serious lease default. If you wish to authorize this person, please read the articleAuthorizing the Unauthorized Occupant and take the steps to authorize the occupant if you so desire. Otherwise, serve your Seven Day Notice With Opportunity to Cure, refuse any rent payments, call your attorney, and evict everyone if the tenant refuses to remove the unauthorized occupant. Remember that once you know there is or was an unauthorized occupant, make sure you follow up to confirm that the person is truly gone and not just being more careful about being caught.

 

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Gary Scarboro CAE, CAPS named Executive Vice President of Apartment Association of Greater Orlando

NEWS RELEASE

(Maitland, Florida) – The Board of Directors of the Apartment Association of Greater Orlando (AAGO) announced the appointment of Gary Scarboro, CAE, CAPS, as incoming Executive Vice President. He will take over as the chief executive officer for the organization upon the retirement of Laura M. Yoder at the end of this year. Ms. Yoder has been Executive Vice President for AAGO since 1988.

Scarboro is currently Director of Education and Government Affairs for AAGO, which is the nation’s largest provider of National Apartment Association Education Institute (NAAEI) professional designation programs. He is also Government Affairs Director for the Florida Apartment Association, coordinating the state government affairs on behalf of the apartment industry. He will vacate this position at the end of the year upon assuming the CEO position for AAGO.

Scarboro is a Certified Association Executive (CAE) through the American Society of Association Executives and a Certified Apartment Property Supervisor (CAPS) through the National Apartment Association. Scarboro currently serves on the National Apartment Association Futures Task Force, NAA Rental Inspections Task Force, and NAAEI Program Administration Committee. His professional experience in real estate brokerage, property management and association management spans 23 years, including the last six years at AAGO.

Incorporated in 1972, the Apartment Association of Greater Orlando serves the apartment industry in the counties of Orange, Seminole, Volusia, Osceola and Lake, and is headquartered in Maitland, Florida. AAGO is the largest apartment association in Florida, serving over 500 apartment communities, nearly 200 property management companies, and approximately 300 vendor/supplier members in the central Florida region.

AAGO provides education, training, legislative communications, advocacy and networking opportunities for the apartment industry. AAGO is affiliated with the Florida Apartment Association and the National Apartment Association.

 

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RETALIATION IS PROHIBITED
by Cathy L. Lucrezi, Attorney at Law

Acting out of Anger

Don’t let anger guide your actions. If you learn that your tenant has filed a fair housing complaint of discrimination, take a deep breath, and get legal advice. Do not act out of anger. Any retaliatory act may mean that the landlord will be liable for damages, attorney fees, and court costs.

Acts of Retaliation

Everyone (hopefully) knows the federal Fair Housing Act prohibits discrimination based on race, color, religion, sex, familial status, national origin, and handicap. Perhaps fewer people know that it also prohibits acts of retaliation.

The law makes it unlawful to “coerce, intimidate, threaten, or interfere with any person” who is exercising his rights under the Fair Housing Act or who is helping another person exercise rights under the Fair Housing Act. Such conduct is retaliation and can subject the landlord to a lawsuit, even if he is not otherwise engaging in discrimination.

Examples of Retaliation

Examples of retaliation are refusing to make repairs or not making them in a timely manner because the tenant was involved in a discrimination complaint, or evicting a tenant because he was a witness in a discrimination investigation. The way a person asserts his or her fair housing rights can be as informal as a verbal complaint to the manager, or as formal as a complaint filed with a local fair housing enforcement agency.

Suppose the complaint has no merit?

It is illegal to retaliate against someone who has raised an issue of discrimination, even if the original allegation of discrimination has no merit. Make sure the actions you take are not a result of the allegation itself, but rather that the actions would have happened regardless of the allegation.

If a tenant alleges discrimination, you are not required to stop enforcing the lease or to stop serving notices for nonpayment or other lease violations. Stay consistent with what you do, and you should be able to support any legitimate actions you take after a tenant makes an allegation. Unsure of what to do? Call your attorney!

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Law Offices of Heist, Weisse & Wolk, P.A.
Phone: 1-800-253-8428 Fax: 1-800-367-9038

Serving Florida's Property Managers with main office in Fort Myers Beach. Available by appointment in Orlando and Clearwater


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