Quorum April 2019

Washington Metropolitan Chapter Community Associations Institute

APRIL 2019

A Magazine for Community Association Volunteer Leaders, Professional Managers and Business Partners

FAIR

HOUSING

ALSO IN THIS ISSUE

__________________________________ Will HUD Provide Additional Guidance on Assistance Animals? __________________________________ The Blunt Truth: How Your Community Association Should Handle Marijuana Use in Light of Evolving Laws __________________________________ All is Fair in Love and on Social Media

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APRIL 2019

The federal Fair Housing Act protects against housing discrimination on the basis of Race Color National Origin

Personal Appearance Ancestry Age

Sex Sexual Orientation

Gender Identity or expression

Familial Status Marital Status Family Responsibilities

Status as a Victim of Intrafamily Offense Presence of Children

14 Legislation Explained: Fair Housing Act (FHA) & Americans with Disabilities Act (ADA)

BY MARLA J. DIAZ, ESQ.

18 That’s Not My Rhino: Accomodating Assistance Animals in Community Associations

BY LESLIE BROWN, ESQ.

22 Will HUD Provide Additional Guidance on Assistance Animals?

Religion Political Affiliation Political Opinion

Disability Blindness Source of Income Place of Residency or Business

­CONTENTS

Matriculation Occupation

BY DAWN M. BAUMAN, CAE

25 Requests for Reasonable Accomodations and Modifications: A Guide for Community Associations on How to Handle Them Appropriately

BY OLGA TSELIAK, ESQ.

26 Are Children Allowed in the Fitness Center?

The Short Answer: It Depends

DEPARTMENTS AND MORE 5 Message from the Executive Director 6 Chapter Benefactor: Brothers Paving & Concrete Corporation 7 Chapter Benefactor: Whiteford, Taylor & Preston, LLP 9 Welcome New Members 10 Upcoming Events 13 People & Places 40 Classifieds 41 Index to Advertisers

BY JENE LYONS, JD, PCAM

29 Hyde Park Condominium Amends Bylaws to Prohibit Smoking!

BY DAVID J. COYLE, CMCA, PCAM

30 The Blunt Truth: How Your Community Association Should Handle Marijuana Use in Light of Evolving Laws

BY SHIRLEY M. STEINBACH, ESQ.

32 The Freedom of Choice: Fair Housing is the Law

BY KRISTEN C. BARRY

34 Pool Season is Coming! Is Your Community’s Pool ADA Compliant?

BY SARA J. ROSS, ESQ.

36 Will Your Insurance Program Respond to a Fair Housing Complaint?

BY LAURI RYDER, CIC, CRM, CMCA

38 All is Fair in Love and on Social Media

WMCCAI MISSION STATE­MENT To optimize the operations of Community Associations and foster value for our business partners.

BY JIM WISNIEWSKI

Reader comments and suggestions are welcome. Address your comments to: Quorum 7600 Leesburg Pike, Suite 100 West Falls Church, VA 22043

We also wel­come ar­ti­cle sub­mis­sions from our ­members. For author guide­lines, call (703) 750-3644 or e-mail publications@caidc.org.

Articles may be edited for length and clarity.

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WE CARE ABOUT OUR CREWS AND YOUR COMMUNITY MEMBERS Our highly trained crews assure that OSHA standards are strictly upheld.

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President Rafael A. Martinez, CTP President-elect Airielle Hansford, CMCA, AMS, PCAM Vice President Michael Gartner, ESQ Secretary Ruth Katz, ESQ. Treasurer Kristen Melson, CMCA, AMS, PCAM Immediate Past President Sarah Gerstein, CMCA, AMS, LSM, PCAM (EX OFFICIO) Executive Director Jaime Barnhart, CMP, CAE (EX OFFICIO)

D IRECTOR S Jennifer Bennett, CMCA, AMS, PCAM, Thomas Burrell, Anthony Humphries, Judyann Lee, ESQ., Sara Ross, ESQ., Gary Simon, CMCA, AMS, PCAM, Todd A. Sinkins, ESQ., Jon Stehle

CO U N C I L C HAI R S Communications Council Leslie Brown, ESQ. Education Council Debra Johnson, CMCA, AMS, PCAM Member Services Council Bernie Guthrie, CMCA, AMS, PCAM

CO MM I T TE E C HAI R S Conference & Expo Donna Aker, CMCA, AMS, PCAM and Chris Goodman D.C. Legislative/LAC Scott Burka, CMCA, AMS, PCAM, and Jane Rogers, ESQ. Education Kevin A. Kernan, ESQ. and Todd El-Taher Golf Adrienne Zaleski and Brian Lord, CMCA, AMS Maryland Legislative Scott Silverman, ESQ. and Aimee Winegar, CMCA, AMS, LSM, PCAM

Public Outreach Elisabeth Kirk and Kim Myles Membership Jeffrey Stepp, CMCA, AMS, and Noni Roan, CMCA Quorum Editorial Susan L. Truskey, ESQ. and Christopher Carlson, PE, SECB Chapter Events Kristen Adams and Jen Ann Santiago, CMCA, AMS, PCAM Virginia Legislative Ronda DeSplinter, LSM, PCAM and William A. Marr Jr., ESQ.

QU O RUM Managing Editor Morgan Wright, mwright@caidc.org Design Six Half Dozen

QU O RUM E DI TORI AL CO M M IT TE E Co-chairs Susan L. Truskey, ESQ. and Christopher Carlson, PE, SECB Members James Anderson, Michelle Baquero, CMCA, AMS, Adrian Blakeney, Mira Brown, CMCA, AMS, Leslie Brown, ESQ., Doug Carroll, Deborah Carter, CMCA, AMS, PCAM, Sara Castle, Sarah Foley, Stephen Grant, Scott Greges, CMCA, AMS, Shannon Junior, Kevin Kelly, Richard Kuziomko, CMCA, AMS, PCAM, Crishana Loritsch, CMCA, AMS, PCAM, Liliana Martinez, CMCA, AMS, Kirby McCleary, Thomas Mugavero, ESQ., Crystal Partin, CMCA, AMS, PCAM, Kara Permisohn, Brandi Ruff, CMCA, AMS, PCAM, Lauri Ryder, CIC, CRM, CMCA, Andrew Schlaffer, Chelsie Throckmorton, Olga Tseliak, ESQ., Lee Ann Weir, CMCA, AMS, Doug White, Nicole Williams, ESQ., Meagan Willis. Aimee Winegar, CMCA, AMS, LSM, PCAM, Jim Wisniewski, Michael Zupan, ESQ. Washington Metropolitan Chapter Community Associations Institute, a 501(c) (6) organization, serves the educational, business and networking needs of the community association industry in 80 cities/counties in Maryland, Virginia and the District of Columbia. Members include community association homeowner volunteer leaders, professional managers, association management companies, and other businesses and professionals who provide products and services to planned communities, cooperatives and condominiums. WMCCAI has more than 3,200 members including 300+ businesses, 1,100 professional managers from 85 management companies, and approximately 1,500 community association homeowners. WMCCAI is the largest of Community Associations Institute’s 62 chapters worldwide.

Quorum is the award-winning premiere publication of WMCCAI, dedicated to providing WMCCAI’s membership with information on community association issues. Authors are responsible for developing the logic of their expressed opinions and for the authenticity of all presented facts in articles. WMCCAI does not necessarily endorse or approve statements of fact or opinion made in these pages and assumes no responsibility for those statements. This publication is issued with the understanding that the publisher is not engaged in rendering legal, accounting or other professional services and nothing published in Quorum is intended to constitute legal or other professional advice and should not be relied on as such. If legal advice or other expert assistance is required, the services of a competent professional should be sought directly by the person requiring such advice or services.

Articles appearing in Quorum may not be reprinted without first obtaining written approval from the editor of Quorum. In the event that such permission is granted, the following legend must be added to the reprint: Reprinted with permission from Quorum™ magazine. Copyright 2019 Washington Metropolitan Chapter Community Associations Institute. Quorum is a trademark of WMCCAI. Receipt of Quorum is a privilege of WMCCAI membership for which $65 in nonrefundable annual dues is allocated. The subscription price for nonmembers is $75 per year; contact publications@caidc.org or call (703) 750-3644.

To advertise in Quorum, e-mail publications@caidc.org.

Spring has sprung! No more snow and ice and slush and sleet. Flowers are blooming and outdoor cafes are back! After months of being inside, we can finally get out of our offices and enjoy sun and warmth!

All of the flowers of all the tomorrows are in the seeds of today.

Many people see the start of the year as goal setting time. I find myself planning my goals at the start of the spring. Maybe it’s the return of the sun or the bright colors of spring – but for me, it’s an invigorating and inspiring time of year. One of my professional goals this year is to get back to networking in my career field – to expand my network of trade association executive directors and program managers, and to give back to the organizations I belong to.

FROM THE EXECUTIVE DIRECTOR

O FFICE R S

I challenge you to do the same…right here in your chapter, WMCCAI. Our calendar of events is full of opportunities for you, whether you are a homeowner, manager, or business partner. You can register and attend these events – that’s great. Showing up is step one – cultivating relationships at these events is where the real power of our organization lies.

What simple steps can you take to harness the networking power of our chapter?

• Take a moment to recognize the sponsors at an event. They are there supporting the organization’s mission and are eager to meet you. Maybe you don’t need their service immediately, but I bet that one day you will and by simply introducing yourself at a chapter event, you will already have a contact to call. Exchange business cards and follow up with them.

• Name badges – they are not there simply to confirm your attendance at the event. They are powerful networking tools – use them! Introduce yourself to someone you don’t already know. Maybe they have a similar job than you – share ideas! Connect with another attendee who plays a different role in community association management – learn about something from a different perspective. Ask someone about their multiple badge ribbons – who knows what you will learn!

• Giving back to the organization is another way to network. Working alongside other chapter members on a committee allows you to build on your own skills, work in an area you are passionate about, and to develop professional relationships with members you may otherwise not know. That work is also essential to the success of the chapter – we cannot do what we do without our member volunteer leaders.

Plant those networking seeds today – tomorrow, they will bloom to take your career to new heights.

JAIME BARNHART,

CMP, CAE

Jaime Barnhart, as the chapter’s executive director, is responsible for implementing the organization’s mission and goals, and managing its staff. Jaime has worked in non-profits/associations in the D.C. Metro area for over 12 years focusing on program management, events and trade shows, and marketing. She joined WMCCAI as the events manager in 2015.

For more information about Quorum or WMCCAI, visit www.caidc.org.

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CHAPTER NEWS

C H A P T E R

B E N E F A C T O R

Brothers Paving & Concrete Corporation Paul Battista, CEO/Founder 9469 Hawkins Drive City, State ZIP: Manassas, VA 20109 Telephone: (703) 393-1927 Fax: (703) 393-1928 Website: www.brotherspaving.com info@brotherspaving.com

Our job is to make sure that you look good to your customer, and we get that.

We’ve been a member of CAI since 1985, and we’ve been a benefactor of WMCCAI for over 10 years.

Reach out to us to schedule a 30 minute Lunch & Learn session, where we help you learn how to evaluate and maintain your asphalt and concrete needs.

We get it.

With over thirty years experience in the HOA market, we understand the needs of your clients as much as you do.

We make sure that you look good for your clients. The HOA market is the largest segment of our business, unlike our competition, who dabble in this industry. We understand the particulars—the importance of timely notices, of showing up when we say we will show up, attending board meetings, and educating board members on all aspects of our business.

“Loyal customers, they don’t just come back, they don’t simply recommend you, they insist that their friends do business with you.” -Chip Bell

Article Submissions:

Are you interested in sharing your experiences and expertise with our readers? Quorum magazine is always seeking new article ideas, submissions, and content. If you have an idea or would like to submit an article for consideration, please make sure you contact us before you begin writing to see what our upcoming themes are. Questions and interests should be directed to Morgan Wright at publications@caidc.org or by phone at 703.750.3644.

Advertising:

For advertising, availability, rates, and specifications, please contact Morgan Wright at publications@caidc.org. Targeted advertising in WMCCAI’s Quorum, opens the door to thousands of prospective customers and contacts in the community association industry.

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CHAPTER NEWS

C H A P T E R

B E N E F A C T O R

Whiteford, Taylor & Preston, LLP Edward J. O’Connell III, Partner 3190 Fairview Park Drive, Suite 800 City, State ZIP: Falls Church, VA 22042-4510 Telephone: (703) 280-9266 Fax: (703) 280-8944 eoconnell@wtplaw.com Tiffany M. Releford, Partner 7501 Wisconsin Avenue, Suite 700W City, State ZIP: Bethesda, MD 20814-6521 Telephone: (202) 659-6764 Fax: (202) 327-6187 treleford@wtplaw.com Chad J. Toms, Partner 209 5th Street City, State ZIP: Bethany Beach, DE 19930 Telephone: (302) 829-3043 Fax: (302) 357-3273 ctoms@wtplaw.com Website: www.wtplaw.com Year Established or Incorporated: 1933 • CAI Member Since: 1980

• Certificate of Insurance: N/A • Areas you serve: District of Columbia, Delaware, Maryland and Virginia Corporate Associations: • Washington Metropolitan Chapter Community Associations Institute (WMCCAI) • Chesapeake CAI (CAIMDCHES) • Central Virginia (CVCCAI) • Southwest Virginia (CAISWVA) • Southeastern Virginia (SEVACAI) • PA and Delaware Valley Chapter of CAI (CAI-PADELVAL)

Services Provided: We advise clients on a broad range of corporate, litigation, technology and regulatory legal issues, both in the U.S. and abroad. In addition to our extensive representation of Community Associations, our clients range from Fortune 500 companies to small and medium enterprises to start-ups. They include businesses engaged in construction, finance, government contracts, higher education, health care, insurance, life sciences, manufacturing, nonprofits, real estate, securities, technology and transportation, among others. We help our clients arrange financial transactions, mergers and acquisitions and public offerings. Additionally, we advise companies and organizations of all sizes on tax, employment and real estate matters. Our litigation attorneys provide legal representation in court, arbitration and mediation, as well as before administrative agencies in a broad range of corporate, partnership, business and commercial disputes.

Licenses Held: Our attorneys are admitted to practice before the state and federal courts of Delaware, the District of Columbia, Kentucky, Maryland, Michigan, New York, Pennsylvania, Virginia and a number of other states.

Company Philosophy: Since 1933, clients have come to Whiteford, Taylor & Preston for trusted representation and guidance on issues critical to achieving their business goals. With over 170 attorneys in 16 offices, we serve clients throughout the mid-Atlantic, as well as nationally and internationally. We have a lean, entrepreneurial approach to the business of law, delivering legal services that are at once sophisticated and cost-effective. In addition, we have a long history of giving back to our communities through pro bono contributions of legal services, board service and financial donations.

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You want an established management partner with the strength and proven ability to ensure your community enjoys the professionalism and uncompromising commitment to quality you deserve.

You’ve got it with Barkan.

Why not find out more?

MANAGEMENT

703.388.1005 barkanco.com

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People you can count on. Experience you can rely on.

WMCCAI proudly welcomes the following members who joined the chapter in February 2019.

Community Association Volunteer Leaders from the Following Associations 4600 Connecticut Avenue Condominium Arlington Village Ballston Park Condominium Battery Heights Unit Owners Association Brambleton Community Association Dominion Valley Country Club Homeowners’ Association Dulles Farms Community Association Eclipse on Center Park Condominium Eton Square Condominium Heritage Hunt Homeowners Association Huntington Forest Homeowners Association Hyde Park Condominium Lafayette Park Condominium Association Mosby’s Landing Olde Towne Village Condominium Association Port Royal Condominium Association Potomac Oaks Condominium Potomac Place Tower Condominium Riviera of Chevy Chase Condominium Sheffield Manor Homeowners Association Skyline Plaza Condominium Spring Hill Community Association Spring Valley West Homes Corporation The Jefferson Residential Condo The Preserve at Piscataway Homeowners Association, Inc. The Vineyards Condominium Tiber Island Condominium Virginia Square Condominium Washington Square Homes Whitehall Condominium Widewater Village Homeowners Association Individual Managers Doug Anstine, FirstService Residential, AAMC Helen D. Bates, FirstService Residential, AAMC Elizabeth C. Betz, Comsource Management, Inc., AAMC Alyssa M. Cortijo, Barkan Management Company, Inc., AAMC India L. Cox, Vantage Point East at Leisure World Patricia K. Crocker, FirstService Residential, AAMC Stephen R. Desimone Cole Farmer, SFMC, Inc., AAMC Karen A. Gallagher, Comsource Management, Inc., AAMC Katherine M. Kight, CMCA, AMS, Skyline Plaza Condominium Felicia T. R. Lee, Community Association Management Professionals, AAMC Sandra P. Lobo, FirstService Residential, AAMC Natalie McCracken Taofiki Mustapha, The Towers Condominium

Angelina Pineda, FirstService Residential, AAMC Aimee Pirnik, Landmarc Real Estate, AAMC Jeanette Raymond, Cardinal Management Group, Inc., AAMC Lora Reynaud Erin M. Serrano, Abaris Realty, Inc., AAMC Whitney Shepard, Community Management Corporation, AAMC Michelle Showers, Clagett Enterprises, Inc. Pamela Stern-Green, CMCA Rick Szajna, Community Association Services, Inc., AAMC Nicholas Vikor, Abaris Realty, Inc., AAMC Zorayda Zambrano, FirstService Residential, AAMC

CHAPTER NEWS

Welcome New Members

Business Partners Farmers Insurance Tripp Godsey Agency GreenSweep, LLC SJC Property Solutions, LLC Multi-Chapter Business Partners Addresses of Distinction Street Signs & Mailboxes Evolution Energy Partners, LLC VPS Recreation, Inc.

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For over 40 years Avedon USA has completed the cross-section of residential, commercial, governmental, institutions and multi family buildings.

Some past and present clients are Marriott Carambola Resorts and Hotel, FDA, IRS, US Army, US Airforce, Gallaudet University, Paradise Mills Condominiums, Ardrews AFB, Value City Department Store and Subway Restaurant.

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UPCOMING EVENTS

APRIL 3

Spring Fling Happy Hour 4:30 – 7:30 p.m.

Tysons Biergarten 8346 Leesburg Pike, Tysons, VA 22182

Who’s ready for a Happy Hour?! Join WMCCAI at Tysons Biergarten as we kick off warmer weather and the beginning of the Spring season at our upcoming Spring Fling Happy Hour networking event. Sample some of the best German and Belgian biers, plus, enjoy small bites of Biergarten favorites alongside music and games. This event provides a perfect opportunity to network in a fun and casual environment alongside your association peers! Please visit www.caidc.org for more information or to register online.

APRIL 13

Potomac Watershed Clean-up Day 9 a.m. – 12 p.m.

Event takes place across several locations along the Potomac River Watershed

Don’t miss the Washington Metropolitan Chapter Community Association Institute’s second annual Potomac Watershed Clean-up Day! Join us as we do our part to clean up the Potomac Watershed and positively impact the communities where we work and live. Volunteer as a site leader and make this event a success!

The more leaders we have, the larger the event will be and the greater the impact. Please visit www.caidc.org for additional information.

APRIL 24

WEBINAR: Water Intrusion – What Do We Do Now? 10 a.m. – 11 a.m.

ONLINE

How much is water damage costing you? Water intrusions are frequent, sometimes catastrophic, and usually costly events. Learning how to effectively manage these often complicated situations can save your association significant time, money and angst. Please join Sami Satouri, RHU, ChHC, Quest Insurance, Chris Corbett, CIC, Quest Insurance, Theresa Melson, PCAM, USI Insurance Services, LLC and Bruce Easmunt, Esq., Chadwick, Washington, Moriarty, Elmore & Bunn, PC as they take you through a step by step process that addresses the insurance and legal implications of various types of water intrusions. Please visit www.caidc. org for more information or to register online.

APRIL 27

Homeowner Board Leadership Development Workshop 9 a.m. – 5 p.m.

Villages of Urbana 9228 Shafers Mill Drive Frederick, MD 21704

Congratulations – you’ve been elected to your association’s Board of Directors! Learn about how to be fair and effective in your role as a leader in your community. Know your duties and responsibilities in managing operations and maintaining assets. Learn how to hire the right management staff and service providers, establish sensible and enforceable policies, interpret the governing documents and communicate with your membership. The Board Leadership Development Workshop takes a comprehensive look at what it takes for Board members to work collaboratively and productively to build a sense of community in an association while keeping an eye on the future with a strategic plan for strong governance and financial stability. Breakfast and Lunch will be provided. Please visit www.caidc.org for more information or to register online.

MAY 7

Manager Essentials: CMCA Exam Study Group 12 – 3 p.m.

WMCCAI Chapter Office 7600 Leesburg Pike, Suite 100 West Falls Church, VA 22043

Take the fear and anxiety out of taking the CMCA exam. Become familiar with the structure and content of the test in this interactive study session tailor made for managers and administrators pursuing the CMCA designation. Participants will be guided by a panel of professionals representing each of the knowledge areas covered in the exam. This session is not conducted as a lecture, but rather is a unique opportunity for participants to apply what they know in a discussion setting along with their peers and industry professionals.

Lunch is provided! Please visit www.caidc.org for more information or to register online.

JUNE 6

SAVE THE DATE: Networking on the Riverboat

Join us for Happy Hour on the River! Set sail with WMCCAI, your colleagues, clients and friends as we network on the water. Please visit www.caidc.org for more information or to register online.

4:30 – 7:30 p.m.

Boomerang Party Yacht Georgetown Waterfront Commercial Dock 3100 K Street NW, Washington, DC 20007

For more information on WMCCAI meetings or upcoming events, contact the chapter office at (703) 750-3644, email info@caidc.org or visit www.caidc.org.

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DC

DELAWARE

FLORIDA

MARYLAND

NEW JERSEY

NEW YORK

PENNSYLVANIA

VIRGINIA

1/16/19 2:29 AM

Cardinal Management Group, Inc. in Woodbridge VA is excited to announce that Jonathan Sucher, PCAM, Senior Vice President at Cardinal Management Group, Inc., has been appointed to CAI’s Foundation for Community Association Research. They provide research and analysis on community association trends, issues and operations in an effort to inspire successful and sustainable communities. The Foundation has produced such documents as the Community Association Fact Book and Best Practice Reports.

Jonathan is one of our most tenured employees, having started with CMG in 1995. Throughout his years with CMG in various roles, he has steadily proven his commitment to the job, and always exhibited a willingness to take on greater responsibilities. Jonathan has acquired valuable skills and a deep understanding of community association living, which will enable him to lead forward and provide the support needed to property management professionals.

Also, Cardinal Management Group, Inc. is thrilled to announce the promotion of Tom Markell, CMCA, AMS, PCAM and Brian Cramp, CMCA, AMS to Assistant Vice President(s) in charge of our Assistant Property Management Team. We’re pleased to have both Brian and Tom on our dedicated team of professionals, whose attention to detail and extraordinary level of customer service is an asset to the Cardinal Family.

Mr. Markell joined the company fifteen years ago where he has always shown initiative in the performance of his duties, even going above and beyond what is expected of him, in order to ensure that CMG delivers quality customer service and exceptional team building experience. We expect this same level of dedication and commitment to be applied in his new position as one of the members of the Leadership Team.

Mr. Cramp joined the company nine years ago. Where he advanced through progressively more responsible positions, Brian has brought energy and enthusiasm that he has continued to use while leading his team to consistently improve and excel at their positions. All of these Managers have shown commitment and persistent enthusiasm for ensuring that the job gets done right which has earned them the recognition and promotion to these new roles. Please join us in congratulating all three of them in their future accomplishments.

PEOPLE & PLACES

Cardinal Management Group’s Jonathan Sucher Appointed to CAI’s Foundation for Community Association Research, Tom Markell and Brian Cramp Promoted and Will Lead Assistant Property Management Team

Leader of Global Bankruptcy Bar, Marc Abrams, Joins Whiteford, Taylor & Preston Whiteford Taylor & Preston is pleased to announce that Marc Abrams has joined the firm.

Widely recognized as one of the preeminent bankruptcy practitioners in the United States, Mr. Abrams is also a leader in the burgeoning area of cross-border restructurings.

“Marc is a true statesman of the bankruptcy bar,” said Managing Partner Martin Fletcher. “His decision to join us is a tremendous endorsement of our bankruptcy platform, and a signal moment for the firm.”

Mr. Abrams is experienced in complex chapter 11 cases and non-judicial restructurings, principally on behalf of debtors. He also has extensive experience representing creditors’ committees and groups, opportunistic investors and lenders, as well as substantial experience with restructurings involving foreign insolvency regimes and related cases under the Bankruptcy Code, including chapter 15 cases.

Paul Nussbaum, Chair of the firm’s Bankruptcy Group, said, “Marc and I were young lawyers together in New York in the early days of the modern bankruptcy practice. Since then, businesses of every size and description have relied on bankruptcy restructurings, and Whiteford has evolved into a leading bankruptcy practice. Having Marc in our New York and Delaware offices significantly enhances and deepens our profile, nationally and internationally.”

Consistently recognized by Chambers Global and Chambers USA as a leading practitioner in Bankruptcy/Restructuring, Mr. Abrams has been named to the Global M&A Network’s 2017 “A-List” as one of the top 100 restructuring & turnaround professionals. The American Lawyer named him “2009 Dealmaker of the Year.” He is a member of the Board of Directors and a Fellow with the American College of Bankruptcy.

“This is an opportunity for me to work with an exceptional bankruptcy team,” said Mr. Abrams, “and, in a very real sense, return to my roots. My legal career began in Delaware, and Wilmington, in the years since, has become an important center of bankruptcy activity.”

EJF/Delbe Management Announces Sarinda Ly as Newest PCAM Recipient EJF/Delbe is excited to announce its newest PCAM recipient, Sarinda Ly, who was awarded PCAM number 3042 as of December 2018. Sarinda has been in the community association industry since 2010 and joined Delbe Management in 2017 as a portfolio manager.

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By Marla J. Diaz, ESQ. Marla is a partner with the law firm Whiteford, Taylor & Preston. She divides her practice between general civil litigation and general counsel representation of community associations in the Commonwealth of Virginia. She has significant trial and general litigation experience in the state and federal courts in the Commonwealth of Virginia, including litigating various community association issues, fair housing defenses, construction defect cases, commercial litigation matters, and general real estate litigation matters. Marla is a member of and regular speaker for the Washington Metropolitan Chapter of the Community Association Institute. She teaches primarily on issues of fair housing law compliance and defense of fair housing complaints. Marla was recently acknowledged as a “2018 Leader in the Law” by Virginia Lawyer’s Weekly for her involvement in two seminal cases before the Virginia Supreme Court. Marla is a graduate of Collage of William and Mary and the Wake Forest University School of Law.

Legislation Explained: FAIR HOUSING ACT (FHA) & AMERICANS WITH DISABILITIES ACT (ADA)

Discrimination Community associations are increasingly faced with requests from residents that the associations modify their policies or even their physical facilities to accommodate a disabled individual. Unfortunately, a great deal of confusion exists for associations and their residents regarding the disability laws applicable to the associations and the onus they place on the association when responding to these requests. This article is intended to provide associations with a primer for understanding and distinguishing between the obligations created for associations under the two primary disability rights statutes: the Americans with Disabilities Act (“ADA”) and the federal Fair Housing Act (“FHA”).

under both Acts and operate their facilities and services in compliance with those obligations. There is little room for error.

The FHA Generally, community associations need to be most concerned about the requirements of the FHA. It applies to all community associations and all parts of all community associations. Under the FHA, housing providers, such as community associations, are obligated to provide certain protected classes of people with equal access to housing and to the facilities and services associated with housing. A failure to provide equal access to housing and the facilities and services of

Congress enacted both the FHA and ADA as remedial legislation, intended to address historical inequities in access to housing and commercial facilities suffered by individuals with disabilities.

Because of the strong public policy concerns underlying the adoption of both Acts, both are liberally interpreted to provide protection for the classes of individuals they cover.

As a result, community associations must take care to understand their obligations 14 | QUORUM

the association based on a person’s status in a protected class constitutes discrimination.

While an association has broader responsibilities under the FHA to prevent discrimination against several protected classes, when addressing the concerns of disabled guests and residents, there are three primary areas of concern for an association under the FHA: adoption of rules and regulations, prompt and correct handling of reasonable accommodation and modification requests, and design and construction guidelines. a. Non-Discriminatory Rules Community associations already know that they cannot adopt unreasonable rules that are arbitrary and capricious, but the FHA adds another layer of requirement for rule adoption. Pursuant to 42 U.S.C. § 3604(f) (2), a community association is prohibited from discriminating against any of the protected classes, including disabled residents and guests, in the provision of the services it provides and the facilities that are used by its residents. In order to comply with this requirement, an association cannot adopt a rule or regulation that discriminates against its residents and interferes with their access to the services of the association or use of the facilities.

Most often this becomes an issue for associations that have adopted well-intentioned rules and regulations intended to limit the use of services and facilities by children. It is a rare and typically unintentional case where an association will adopt a rule that discriminates against a disabled resident or guest. Nevertheless, if a resident raises a concern that a rule might be inadvertently discriminatory to a disabled owner, the association should give due consideration to that concern. b. Reasonable accommodation and modification requests Increasingly, community associations are receiving requests from residents, and in some cases, guests to grant exceptions to their rules, policies, practices, and services as an accommodation that would allow a disabled resident or guest equal access to the community association. Alternatively, these requests will ask the association to modify the physical facility of the association to allow the resident or guest equal access to the association. Under the FHA, the association is obligated to promptly respond to these requests and, as reasonable and necessary, to grant such exceptions or allow such modifications to the association’s physical facilities in order to accommodate the disabled individual. See 42 U.S.C. §§ 3604(f)(3)(A) and (B).

These provisions of the FHA are reactive, meaning that the association is not obligated to do anything until it receives an actual request for an accommodation or modification. There are no magic words, however, that must be used in making such a request. If a resident asks for an exception to an association rule or a change to the unit or common element because she or her guest is disabled, the association must assume it has received an accommodation or modification request even if those words have not been used.

Once the request has been made, the association is required to act promptly in responding to request. An association can get in as much trouble under the FHA by failing to timely respond to a request as it can in responding incorrectly. The association is entitled to ask the resident for additional information regarding the request, but only if needed to decide whether or not to grant the accommodation or modification. If an owner in a wheelchair asks the association to install automatic door openers, the association cannot ask for additional information on the disability since it is apparent. If the disability is not known or the relationship between the disability and the accommodation or modification requested is not clear, the association can ask for additional information before considering the request and may, in some cases, ask for information from a health care provider to substantiate the reasonableness of the request.

Occasionally, the accommodation or modification request will have an associated expense. If the request is for an accommodation, such as assignment of a parking space or keeping an emotional support animal in a non-pet building, the association cannot charge the resident for the accommodation. This includes not charging a pet fee or requiring additional insurance for the emotional support animal. All costs associated with the accommodation must be borne by the association. For a reasonable modification request, however, when the

resident is seeking a change to the physical facility of the association, the requesting resident must agree to pay for the actual modification.

If the modification is being made to the common area or elements of the association, the association will be required to pay for ongoing maintenance of the modification, but the requesting resident must pay for its installation.

Given the increasing number of reasonable accommodation and modification requests, community associations should give due consideration to adopting a resolution establishing procedures for handling such requests. While each request must be considered on a case-by-case basis, such policy nevertheless benefits the association by educating the board and management about their obligations in responding to such requests and avoids mishandling the requests. c. Design and Construction Under the FHA, any housing designed and constructed for first occupancy after March 13, 1991 is obligated to have certain features to allow equal access to the housing by disabled individuals. The guidelines establishing the required accessibility features are found in the Fair Housing Act Design Manual (“FHADM”). Most jurisdictions have adopted the requirements of the FHADM into their building codes, so most developers designing and constructing community associations after March 13, 1991 should have constructed the association in compliance with the FHA requirements. On occasion, however, an association may find that the developer failed to meet the FHADM requirements and it will need to consider whether its property needs to be corrected. This is not a common occurrence, but it can be an expensive problem to correct.

The ADA The ADA applies to community associations less often than the FHA, but associations must nevertheless be alert to the ADA and understand when it does apply so they do not inadvertently subject themselves to its obligations. The ADA, like the FHA, is intended to provide disabled individual with equal access to the community generally. It does not, however, apply to private entities unless such entity engages in specific conduct that opens them up to use by the general public. Community associations are mostly exempt from the requirements of the ADA because they are private and do not open themselves up to public commerce.

Allowing use of the property by owners, long term rentals and guests of residents does not make the association a place of public accommodation. Occasionally, however, an association will engage in conduct that will create obligations under the ADA. Pursuant to Title III of the ADA, any portion of certain private properties that are open to the public and affects commerce is a place of public accommodation subject to the requirements of the ADA. For a community association, this means that if it allows members of the public to use a portion of its common areas or elements, that portion of the property and all accessible routes to such portion of the property are subject Continued on page 17 APRIL 2019

| 15

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to the ADA. If an association elects to allow swim teams from other communities to come to the pool for meets or rents out the community room to non-resident groups, the pool, the community room, and the accessible routes to such facilities will become subject to the ADA requirements.

Communities dealing with short term rental issues in units should also be aware that such rentals may create exposure under the ADA. Under the ADA, any portion of a private residence used in the operation of a place of public accommodation, such as hotel or lodging use, is covered by the ADA and this extends to the elements used to enter the private residences and those portions of the property available for use. If a unit owner, therefore, rents their unit as a short-term rental, that unit and all parts of the condominium used to access that unit or available for use by the short-term renter are subject to the ADA. Associations unwilling to subject themselves to the ADA should be mindful of this concern when deciding how to enforce any short-term rental limitations in their documents.

An association may elect to open its community facilities up as a place of public accommodation as a benefit to its residents, but it needs to be aware of the consequences of such decision. The ADA requires a place of public accommodation to either comply with the ADA Accessibility Guidelines (ADAAG) or to upgrade its existing facilities to remove architectural barriers to disabled individuals to the extent it is readily achievable to do so. If, therefore, the accessible route to the community room needs a ramp or curb cuts to comply with the ADAAG, the association will need to incur that expense. If a pool becomes a place of public accommodation, the association will need to comply with the ADAAG by adding accessible means of entrance and exit to the pool, which can be expensive.

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In addition to obligations to upgrade the property, the association may also be obligated under the ADA to allow exceptions to its policies, practices, and procedures to accommodate the needs of disabled members of the public visiting the community. This could include allowing services animals to use all portions of the property that constitute a place of public accommodation as needed for the disabled individual.

The association will not, however, be able to ask for a special identification for the service animal or the disability of the individual bringing the service animal on the property. It can only ask whether it is a service animal and what tasks it has been trained to perform.

Conclusion Ultimately, the ADA and FHA have good intentions and compliance with their requirements provides a benefit to community associations, as it broadens the pool of potential owners and residents by making the property accessible by all. Nevertheless, both statutes can present potential liability and significant administrative work for an association that does not prepare for dealing with these issues in advance. All community association would benefit, therefore, by making certain they understand fully their ADA and FHA obligations and putting into place those procedures needed to make certain the association meets their requirements.

APRIL 2019

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By Leslie Brown, ESQ. Leslie is Counsel with the law firm Rees Broome, PC, representing community associations and other non-profit and business entities in the D.C. area. She is currently the Communications Council Chair for the Chapter and was previously the co-chair of the Quorum Magazine Editorial Committee in 2014.

That's Not My Rhino: als Accommodating Assistance Anim in Community Associations

E

motional support dogs? Therapy cats?

Assistance chickens? Comfort pigs? It seems like every week there is a news story about a resident in a community association who wants to keep an otherwise prohibited animal by claiming that the animal is necessary to alleviate the resident’s disability.

Boards and management are, understandably, confused as to why an association may have to contravene its own rules to allow restricted animals to remain on the property,

especially when the relationship between the disability and the need for the animal is not always clear.

What area of law applies to community associations in the context of a resident’s disability?

Federal, state and local fair housing laws prohibit housing providers from discriminating against residents on the basis of a protected class. One of those protected classes is

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“disability” or “handicap.” Courts have determined that community associations constitute “housing providers” under these laws, and, as such, cannot discriminate against residents because of a disability.

What kind of disability requires an assistance animal?

The applicable fair housing laws define “disability” or “handicap” to include both physical and mental conditions. In the context of assistance animals, this means an animal that helps with one’s physical disabilities, such as a seeing-eye dog for vision impairment, a service dog that detects seizures, or a dog that assists a resident with a mobility impairment.

But, it can also mean an emotional support animal that helps alleviate mental conditions, such as anxiety, PTSD, or depression.

How does an association have to accommodate a disability?

The applicable fair housing laws consider it to be a discriminatory practice for a housing provider to fail to make a “reasonable accommodation” to its policies, practices or procedures in order for a disabled resident to have full enjoyment of the premises. The term “reasonable accommodation” is a legal term of art, that, in the context of assistance animals, means allowing an assistance animal to be maintained on the premises when the animal is necessary to alleviate a resident’s disability, even when the community’s rules and covenants would otherwise prohibit the animal. Some examples of “reasonable accommodations” are:

• Allowing an assistance animal in a “no pets” community.

• Allowing a resident to maintain an assistance animal even if it would exceed the number of animals each resident is permitted.

• Allowing a type of assistance animal that is outside of what is normally allowed (“ordinary house pets”).

• Allowing an assistance dog that exceeds weight limits.

• Allowing an assistance dog that is of a restricted breed (pit bulls, rottweilers, etc.).

• Allowing assistance animals to have access to common areas that are otherwise restricted for pets.

• Waiving a “pet fee” or security deposit for an assistance animal.

Boards and management must appreciate that an assistance animal is not a pet. These animals are tools, like a wheelchair or a white cane.

I read a news article about a resident’s request to maintain a comfort squirrel. That can’t be legitimate, can it?

What can constitute an emotional support animal under fair housing laws is broad. Courts have permitted animals such as gerbils, pigs, snakes, chickens, goats and fish. There is no requirement that emotional support animals be of a particular type or have any particular certification or training.

I thought that assistance animals can only be trained dogs and miniature horses?

What is being referred to here are “service animals” under the Americans with Disabilities Act (ADA). The ADA permits service animals in places of public accommodation. Most community associations do not fall under the ADA, but this statute can be triggered if a community has places of public accommodation, such as a swimming pool that is open for swim meets, a club house that is available for rent by non-members, a golf course that is open for use by the public, etc. Under the ADA, the only 2 types of animals

that are permitted to be service animals are dogs and miniature horses. These animals are trained for a particular task, obey commands and are under the control of their handler when in service.

How do I know if a request is legitimate? Sometimes the resident doesn’t look disabled…

When the disability is apparent and the nexus between the disability and need for the animal is clear, the association cannot ask the requesting resident for documentation verifying the disability. An obvious example is a vision-impaired person requesting to maintain a seeing-eye dog.

When the disability is not clear or the need for the animal is not obvious, the association is then in a position to request supporting documentation. For example, a resident may request an assistance animal to help comfort the resident during a panic attack, but the resident may not show any visible symptoms of a panic disorder. In this case, it is permissible to ask for some substantiation of the disability and the need for the assistance animal. But, the association cannot be overly burdensome in its request for substantiation. It can only request enough information to verify the disability and the need. For example, requesting a copy of the resident’s entire medical file would be too burdensome under the law. Furthermore, the law does not require that the documentation come from a doctor.

Anyone in a therapeutic relationship can validate the disability and the need for the accommodation, such as a therapist, social worker, counselor, support group leader, etc.

Is there any lawful basis to deny a request?

There can be a legitimate basis to deny a request for an assistance animal or rescind a previously granted request if: • Maintaining the animal constitutes an undue administrative or financial burden on the association.

• Maintaining the animal constitutes a fundamental alternation of the association’s practices.

Continued on page 21 APRIL 2019

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• The animal has displayed direct threatening behavior.

• The animal causes substantial damage.

• The animal fails to comply with the association’s other, neutral rules (roams at large, bites, barks, lacks licenses and inoculations, failure to curb, etc.).

What if a resident claims a pet as an assistance animal just to circumvent the rules?

In these cases, there is usually no disability-related need or the resident cannot provide bona fide supporting documentation. A few states have passed or are considering legislation to make it illegal for a resident to misrepresent a need for an assistance animal in housing. While D.C., Maryland and Virginia have laws making it illegal to misrepresent the need for a service animal under the ADA, none of our local jurisdictions have passed legislation to make it illegal to misrepresent the need for assistance animals under fair housing laws as of yet.

What are some best practices for how an association should proceed on a request to maintain an assistance animal?

While there is no one set of best practices, here are some ways associations can stay in compliance with fair housing laws: • The housing provider has a duty to engage in an interactive process with the person who is requesting the accommodation. This means working with the resident to find suitable alternatives. The Association should not just deny the request outright.

• Associations should respond to every request and should do so timely. A delay in responding can be deemed a constructive denial of the request, thus triggering a discrimination claim.

• Boards and management should keep requests confidential. The information received is likely personal in nature and not suitable for disclosure to other residents. When asked about a pending request, a good response is “the association is following fair housing laws.”

• Avoid retaliation. A resident should not be penalized for making a request.

• If the association frequently get requests for assistance animals, the Board may want to adopt an accommodation request policy to standardize its procedures for reviewing and considering requests.

• If the association is alleged to have discriminated against a resident, it should submit a notice of a claim to its insurance carrier without delay.

This is a lot to take in…

Don’t panic. When in doubt, contact your community’s legal counsel for advice.

APRIL 2019

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By Dawn M. Bauman, CAE Dawn is the Senior Vice President of Government and Public Affairs for Community Associations Institute. As CAI’s lead advocate for federal and state legislative and regulatory affairs, Bauman works with hundreds of volunteer leaders throughout the country serving on CAI legislative action committees and CAI government affairs committees to advocate for strong and sensible public policy for America’s community associations. Bauman has been with the Community Associations Institute since 1996. Bauman has dedicated her career to the practice of non-profit management and advocacy with more than 20 years of experience with non-profit organizations and associations. Bauman holds a bachelor’s degree in Business Administration and has earned the prestigious Certified Association Executive (CAE) designation.

S

ince early in 2018, CAI has asked the U.S. Department of Housing and Urban Development (HUD) to provide additional guidance of existing fair housing policy guidance stating it may assist community associations in complying with fair housing requirements. In late 2018 we were advised that HUD submitted additional guidance to the U.S. Office of Management and Budget (OMB) and that additional guidance was pending. Considering the partial government shutdown in late 2018 and into 2019, the process is delayed and could be delayed for a long time.

In our conversations with HUD, CAI expressed our support of the right of all individuals to be free from illegal housing discrimination on the basis of race, color, religion, sex, familial status, national origin, or disability. Complementarily, CAI supports the right and obligation of housing associations to enforce community covenants, bylaws, and rules consistent with federal, state, and local law.

22 | QUORUM

The Fair Housing Act (FHA) has been interpreted to require that community associations exempt assistance animals, including assistance animals providing emotional support, from pet policies and rules and to accommodate residents’ requests for an assistance animal accommodation if the resident has a disability, the animal serves a function directly related to the disability, and the accommodation is reasonable.

In incidences where a resident’s disability is not readily apparent, the association may request the resident provide reliable documentation of a disability and the disability-need for an assistance animal. Such documentation may include an attestation from a physician, psychiatrist, social worker, or other mental health professional that the resident has an existing disability and the assistance animal provides support that alleviates one or more of the identified symptoms of the resident’s disability. A community association may not request access to a resident’s medical records or health care provider to otherwise document the resident’s disabili-

ty. When a disability becomes evident, the association is required to provide a reasonable accommodation allowing the assistance animal access to all areas of the community open to residents, subject to limited human safety and property protection exemptions evaluated on a case-by-case basis specific to the assistance animal for which an accommodation has been made.

CAI notes current guidance from FHA concerning documentation of disabilities that are not readily apparent is vague, which may invite certain deceptive acts of concern to community associations. These vagaries

Assistance Animals & Community Associations

Definition

Applicable state/ federal laws

Specifically trained to work or perform tasks for individuals with disabilities

Americans with Disabilities Act (ADA) and Fair Housing Act (FHA)

Provides psychological or physiological benefit to individuals or groups in a clinical environment

State and local laws

Provides comfort for people with disabilities

Fair Housing Act (FHA)

Must wear a leash or vest identifying the animal

Training to assist one person

*May be required by a community association

✔

✔

X

X

X

✔

✔

✔

X

X

X

X

X

✔

X

X

X

X

X

X

X

X

✔

Service animals are subject to local dog licensing and registration requirements

Allowed by Federal law to accompany handler in restaurants, stores, movie theaters, etc.

Allowed by federal law to stay with people with disabilities in community associations that have “no pet” policies

Required training

Registered or certified

Provide emotional support and comfort to many people

Allowed by Federal law (Air Carrier Access Act) to accompany handler on flights

Primary function to provide emotional support through companionship

service animal

dogs; in some cases, miniature horses

therapy animal any animal

(reliable documentation from a physician, psychiatrist, etc. may be requested under FHA)

✔

X

✔

Check state and local laws.

Reasonable accommodations required under FHA.

emotional support animal any animal (with exclusions)

*There is no nationally recognized certifying agency and no certification granted to service, therapy, emotional support, or other assistance-type animals. Neither the Federal Housing Administration nor the Americans with Disabilities Act require service animal “certification.” A number of reputable agencies certify that an animal has participated in their programs, completed training courses, or otherwise meets the criteria for a service animal. These are legitimate, but not official, and they offer no guarantee of an animal’s status.

Beware of fraudulent service-animal certifications that are easily available for purchase online. To learn more visit www.HUD.gov or www.ADA.gov.

Information in this chart does not constitute a legal opinion. Some state and local statutes may differ from the information presented here. Questions regarding pet issues and service animals should always be referred to an attorney when legal advice is needed. © 2019 Community Associations Institute

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have led to a cottage industry that provides consumers letters of diagnosis and therapeutic attestations where no doctor-patient relationship exists.

CAI suggested HUD’s enumeration of professionals qualified to diagnose disabilities and prescribe an assistance animal to treat the symptoms of such disabilities has assisted community associations in making reasonable accommodations required by law. However, the HUD’s use of the generic term “other mental health professional” may inadvertently perpetuate intentional fraudulent or deceptive acts. CAI expressed concern that HUD’s current guidance does not indicate that an individual or entity diagnosing patients and prescribing assistance animals be either licensed or certified to provide mental or other health care services or that the individual or entity be in good standing with relevant state boards when the patient is diagnosed as having a disability and an assistance animal prescribed.

As we wait for HUD’s guidance, the chart below may help navigate the muddy waters of assistance animals and housing providers. However, this complicated and sensitive issue requires support of legal counsel.

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APRIL 2019

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By Olga Tseliak, ESQ. Olga is an associate attorney with the law firm of Chadwick, Washington, Moriarty, Elmore & Bunn P.C. Her practice is devoted to community association representation, including such matters of covenant interpretation and enforcement, contract law and collections. She is an active member of WMCCAI’s Quorum Editorial Committee.

Requests F O R Reasonable Accommodations A N D Modifications: A Guide for Community Associations on How to Handle them Appropriately

I

n many cases involving violations by community associations of the federal Fair Housing Act (the “Act”) or similar state/ local fair housing laws, violations have occurred unintentionally, as a result of a lack of knowledge, inability to sufficiently recognize when a particular request may implicate fair housing, or a failure to handle the requests appropriately. To minimize the risk of liability on fair housing claims, it is important for managers and directors to know how to respond to requests for reasonable accommodations or modifications appropriately.

Fair housing laws, which were originally aimed to combat discrimination due to race, also prohibit discrimination in housing, in part, on the basis of disability. The Act distinguishes between two types of requests: 1) requests for a “reasonable accommodation” - a change or an exception to a rule, policy, practice, or service that may be necessary for a person with disability to have an equal opportunity to use and enjoy a dwelling; and 2) “reasonable modification” – a structural change in an existing premises that may be necessary for a person with a disability to fully enjoy the housing.

The Act provides strong protections for disabled residents, yet, it does not require associations to automatically grant all requests.

For example, the association can deny an accommodation if it is not reasonable (e.g., if it would impose an undue financial and administrative burden on the association), or if there is no identifiable relationship between the disability and the requested accommoda-

tion. The Act recognizes that the association may need to seek some additional information regarding the request – and allows for it.

Here is the list of tips and suggestions to help your Association properly consider a potential fair housing request: • Acknowledge the request promptly.

When presented with a specific request, consider it seriously – no matter how trivial or unusual it may appear at first.

Acknowledge the request in writing and advise the requestor that the association will respond in due course. A request that has been ignored or summarily dismissed could expose the Association to liability, even if the Association later grants the request. Note that the Act does not require that fair housing requests be in writing; they could be made verbally.

• Evaluate the request carefully. To qualify for a reasonable accommodation or modification, there must be a (i) disability as defined by the Act; and (2) an identifiable relationship (nexus) between the requested accommodation/modification and the individual’s disability. If no such nexus exists, then the Association may refuse the accommodation or modification.

• What kind of information may be requested? The Act entitles housing providers to obtain information necessary to evaluate whether a requested change may be necessary because of a disability. If a person’s disability is obvious, or is otherwise known to the association’s board or management, then the association may

not inquire as to its nature and severity or as to the need for the requested accommodation/modification. For example, if an individual who is wheel-chair bound requests to add a ramp to make a primary entrance accessible, the Association may not require any additional information about the disability or the need for the requested modification as it is readily apparent. If, on the other hand, an individual is seeking an accommodation to an association’s pet policy due to anxiety, then the Association may seek additional information to confirm the existence of the disability and need for the requested accommodation or modification.

• Who bears the cost? The fair housing laws are clear that if a structural modification is requested, the cost is to be borne by the resident requesting the modification (not the association). Therefore, if an association receives a request for a structural modification, confirm with the individual that he or she is willing to bear the cost.

• Provide a notice of decision. After the board evaluates a request and the information collected, if any, the association should promptly inform the requestor of the Board’s decision in writing. If the request is denied, provide an explanation.

In conclusion, it is a good practice to have a plan or a policy in place that provides guidance for handling requests for reasonable accommodations/modifications. When in doubt, contact your association’s legal counsel for assistance with evaluating specific requests and formulating appropriate responses.

APRIL 2019

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By Jene Lyons, JD, PCAM Jene is the Deputy General Manager at Watergate at Landmark. She has been managing communities for more than 15 years and has previously been a member of the Communications Committee and the Virginia Legislative Committee.

Are Children Allowed in The Short Answer: It Depends

C

ommunity associations have been and are more than ever before becoming the center of community life.

Community facilities attract homeowners, are central to the value of homes, and create community. Common facilities are for the enjoyment all residents and that is where it can get complicated. It is not unusual for residents to express a concern about the safety and welfare of residents in all facilities, in particular, fitness facilities.

So what is, or is not, allowed in community

the Fitness Center?

fitness centers? Part of the answer is found within the dictates of the federal and state fair housing laws.

Residents of All Ages are Welcome The Federal Fair Housing Act prohibits housing providers (including common interest community associations) from discriminating on the basis of Familial Status.

The fair housing laws, with some exceptions, prohibit discrimination in housing against families with children under 18. In addition

to prohibiting an outright denial of housing to families with children, the Act also prevents housing providers from imposing special requirements or conditions on residents with custody of children.

Courts have routinely disallowed prohibitions of adultonly spaces and times as well as rules that require “parental supervision.” Generally speaking, the fair housing laws protect families with children from being treated differently and less favorably than adultonly households.

The community may have no rule that speaks to a minimum-age requirement for use of common facilities. A child, just like a senior citizen, is welcome — and legally entitled — to use community facilities. This practice differs, of course, from that of most commercial gyms, city and county community centers and YMCAs, which often do impose age restrictions. Such facilities are not subject to fair housing requirements.

That addresses the presence of children in community facilities, but what about the safety concerns of having children on or near the fitness center equipment?

Guidelines Must Be Followed Even though all are welcome, guidelines 26 | QUORUM

Examples of recommendations for specific equipment:

and rules must be followed. A board-approved resolution and posted signs may provide a warning: “Fitness Equipment must be used in accordance with Manufacturer recommendations.” What this means, practically speaking, is that the safety guidelines — and therefore, the rules for each fitness piece — are detailed within the fitness equipment manuals. It is a good idea to have those manuals accessible. Each piece of equipment has different precautions to heed, some of which may have manufacturer warning stickers affixed to them.

Facility patrons should be encouraged to review the manuals for all the equipment they use (and allow youngsters to use, sit on, play nearby, etc.) to ensure compliance with guidelines based on the manufacturer recommendations. Specific safety concerns found within these guidelines and recommendations should be followed carefully.

These manuals also touch on other warnings related to special health concerns, supervision of disabled persons, loose or dangling clothing and maximum allowable weight.

Making the Call Decisions regarding children are not always clear cut.

Years ago, children in community associations may have been subject to age restrictions governing access to facilities. Today, however, with the directives of federal and state fair housing laws the answer is not so readily apparent.

It is not the mere presence of children that should be the cause for concern. Disruptive or dangerous behaviors or activities — whether by children or adults — that raise health and safety concerns is very much a concern to community associations and the proper reasons for addressing concerns.

We can all have a better understanding and sensitivity to concerns if we familiarize ourselves with the requirements of the law and understand the important distinction between those who pose no harm versus those whose actions and behaviors that render potentially hazardous situations.

•

The eSpinner by StarTrac owner’s manual cautions: “Children under the age of 16 should not ride the eSpnner bike. The bike mechanism and ergonomics are designed for adult use only…. Keep children and pets away from the bike whenever it’s in use.”

•

The SciFit Recumbent S tepper warning reads: “SCIFIT Equipment is designed and intended for adult usage and children of appropriate ages while being supervised. Young children should be kept a safe distance away from the equipment.”

•

The Tuff Stuff equipment, including leg presses, abdominal dip bars and benches read: “Keep Small Children and others at a safe distance from all moving parts.”

•

The Upright Recumbent Bike by StarTrac manual states: “Do not let unsupervised children operate your Pro Bike.”

Familial Status •

Housing providers may not discriminate against families in which one or more children under 18 live with:

•

A parent;

•

A person who has legal custody of the child or children; or

•

The designee of the parent or legal custodian, with the parent or custodian’s written permission.

•

Women who are pregnant; and,

•

Anyone securing legal custody of a child under 18.

Familial Status Impact on Rule-Making •

Community associations must be careful to create objective descriptions in rules, policies, and restrictions.

•

For example, the following rules will likely be found to violate fair housing law:

•

Children may not play on the common area;

•

Children under the age of 15 must be accompanied by a person over the age of 18;

•

Children must wear diapers in the pool.

APRIL 2019

| 27

Board Leadership Development Workshop

Congratulations – you’ve been elected to your association’s Board of Directors! Learn about how to be fair and effective in your role as

a leader in your community. Know your duties and responsibilities in managing operations and maintaining assets. Learn how to hire the right management staff and service providers, establish sensible and enforceable policies, interpret the governing documents and communicate with your membership. The Board Leadership Development Workshop takes a comprehensive look at what it takes for Board members to work collaboratively and productively to build a sense of community in an association while keeping an eye on the future with a strategic plan for strong governance and financial stability. Breakfast and Lunch will be provided.

When

How

Saturday, April 27, 2019 9:00 a.m. – 5:00 p.m.

Registration opens at 8:30 a.m.

Visit www.caidc.org to register

Where

This program is worth seven (7) credit hours

Villages of Urbana 9228 Shafers Mill Drive Frederick, MD 21704

*Parking Available On-site

Credits

Re g ist ra t ion R a tes EARLY BIRD RATE BEFORE: 4/12/19

REGULAR RATE

MEMBER

$65

$80

NONMEMBER

$75

$90

MEMBER

$65

$80

NONMEMBER

$75

$90

Homeowner

Manager

Who This program will benefit Managers and Homeowners

Sponsors

Chancellor

Dean

Professor

Professor

7600 Leesburg Pike, Suite 100 West

E-mail: education@caidc.org

Falls Church, VA 22043

Web: www.caidc.org

T: 703.750.3644 F: 703.941.1740

By David J. Coyle, CMCA, PCAM David is a General Manager for Legum & Norman serving Hyde Park Condominium in Arlington, Virginia. He has been in the real estate and community management industry since 2002, specializing primarily in high rise condominiums. He has served on the Education Committee for WMCCAI and was named “Rookie of the Year” for Legum & Norman in 2010.

Hyde Park Condominium Amends Bylaws to

T

he effects of second-hand smoke continue to be a widely debated topic with multiple studies showing that second hand smoke can potentially have serious health implications. Smoking has been banned in most public spaces including restaurants, office buildings and several parks among others. Additionally, HUD has announced that all Public Housing Agencies and multi-family federally assisted properties will adopt a smoke free policy by July 31, 2018. But, what about privately-owned homes, such as condominium units?

For those living in a condominium, smoking can be a difficult nuisance to live with. Smoking can enter a nonsmoking unit through open windows, vents, shafts and in Hyde Park’s case, through the unit convectors.

Needless to say, the association received many complaints over the years. In exercising its due diligence, the association attempted many self-help remedies. Maintenance teams tried to “seal up” units, smoking was banned in common areas and on the grounds. Still there was no relief. After careful consideration, the board of directors decided it was time to prohibit smoking in the community.

While banning smoking in common spaces was accomplished by resolution, to fully prohibit smoking required an amendment to the governing documents. In accordance with

the Virginia Condominium Act, an amendment to the bylaws requires the agreement (written consent) of unit owners to which two-thirds of the votes in the unit owners’ association appertain. To validate the consent, all unit owners had to agree in writing. This was not a vote, but a consent which would require a herculean effort to obtain.

With the assistance of many community volunteers the association began a grass roots campaign to determine the feasibility and support for a bylaw amendment.

Surveys were sent and over 60% of the unit owners responded with overwhelming support for a bylaw amendment. The community gathered together and discussed the amendment language that would accomplish the goals of the association while addressing unit owner concerns. Town

hall meetings were held to gain community perspective and a draft amendment was developed. After many edits and redrafts, a version was presented to the board, reviewed by counsel and approved to be brought forth to the membership for consent.

Beginning in October 2017, a proposed amendment to the bylaws prohibiting smoking in all areas of the community was sent to the membership for consideration. A 90-day period was established to collect the consent forms. The signed consent forms were reviewed by association counsel who then validated the consent forms against tax records. After exhaustive review, it was determined the association received the required amount of consent forms and the amendment was ratified by the board president.

A bylaw amendment is often regarded as impossible given the amount of unit owners that need to agree.

After all, getting unit owners engaged is a difficult task, especially considering that some owners do not reside on site. Given the importance of the issue and how smoke effects residents, we found that people were very willing to work together to accomplish this goal.

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By Shirley M. Steinbach, ESQ. Shirley is a commercial litigator and community associations attorney who represents homeowners associations, condominiums, and co-operatives throughout the Washington, DC region.

THE BLUNT TRUTH How Your Community Association Should Handle Marijuana Use in Light of Evolving Laws

D

azed and confused about how to legally and effectively manage marijuana use in your community association because of the evolving laws? You are not the only one.

This article explains the current state of the laws on marijuana use in the Washington, D.C. metro area and discusses the options available to your association for conducting business in light of those laws.

Hippocratic Growth: The Decriminalization of Marijuana The District of Columbia, Maryland, and Virginia now all have decriminalized marijuana use for medical reasons. However, what constitutes medical use is highly regulated, so check the laws of your state. For example, in Maryland, to use medical marijuana in compliance with the law, one must register with the state’s Medical Cannabis Commission and suffer from a debilitating medical condition as diagnosed by a physician, among other things.

What about recreational marijuana use? It remains criminal in Maryland and Virginia, as in most states. D.C., however, is one of the few jurisdictions that has decriminalized certain recreational marijuana uses. Initiative 71 (also known as the Legalization of Possession of Minimal Amounts of Marijuana for Personal Use Initiative) became DC law in February 2015. Initiative 71 permits adults 21 years and older to: • Possess, use, purchase, and transport up to two ounces of marijuana; • Cultivate six marijuana plants in their pri30 | QUORUM

mary residence (no more than three of which are mature); and • Gift up to one ounce of marijuana to other adults 21 and older.

It remains illegal in D.C. to: • Possess more than two ounces of marijuana; • Sell any marijuana; and • Smoke or consume marijuana in public spaces, including restaurants, bars, shops, parks, streets, and alleys (including inside private vehicles on streets and alleys).

By contrast, under federal law, the Controlled Substances Act continues to prohibit any use of marijuana, including medical use.

Anyone using marijuana is breaking federal law even if she/he is complying with the state laws.

That said, people using marijuana in full compliance with their state’s laws, who are not using on federal property, should not have to worry about the feds for the time being. For now, Congress has prohibited the Department of Justice from spending money on prosecuting state-compliant individuals.

(See United States v. Trevino, --- F. Supp. 3d ---, 2019 WL 211064, at *2 (W.D. Mich. Jan. 16, 2019)).

Budding Issues Facing Community Associations With the trend toward the decriminalization of marijuana, there is more marijuana smoke and odor than ever before in the hallways of condominium buildings and the common areas of homeowner associations across the DMV. Disputes between neigh-

bors have ensued.

Neighbors of marijuana users claim to suffer from marijuana odors emanating into the common spaces and their homes, and from allergies and other negative health effects due to secondhand smoke.

Marijuana users have responded that they use the drug under a physician’s care to manage the symptoms of an illness or disability.

They claim that any actions to curb their use of marijuana is discrimination on the basis of disability. Marijuana users have cited their states’ laws in support of their rights to cultivate and enjoy marijuana in the privacy of their own homes.

Each side has called upon the community’s property managers and/or boards of directors to support their position and to take action in an effort to remedy the dispute. What can and should a community association do?

Dope Discretion Even if your state’s laws allow for marijuana use, the community association may prohibit and/or regulate it if it so chooses. Residents of a community association must comply with their association’s governing documents, and an association’s governing documents may be more restrictive than state law.

Moreover, claims of discrimination on disability grounds based on the use of medical marijuana are unlikely to succeed in the courts. The Fair Housing Act generally makes it unlawful for community associations to refuse to make reasonable accommodations that afford persons with

disabilities full enjoyment of the premises. However, the term “disability” under this federal act does not extend to the use of drugs that are illegal under federal law.

For the same reason, where a resident suffers from cancer or another legitimate disability, a court is unlikely to hold that the use of a drug that is illegal under federal law constitutes a “reasonable” accommodation under the federal FHA. While the case law is still evolving on this subject, it is doubtful that the courts will hold that community associations are required to accommodate requests for medical marijuana use under the federal FHA. The same is likely to be true under state anti-discrimination laws. As a matter of constitutional law, federal law reigns supreme. In addition, the Maryland and Virginia statutes rely heavily on the federal laws, including for their definition of disability, which does not encompass the use of drugs that are illegal under federal law. In D.C., Initiative 71 provides that it shall not be construed to prohibit any entity that controls real property from prohibiting or regulating the possession, use, or growing of marijuana.

In short, community associations have a lot of discretion.

Hashing Out Your Options Associations facing issues due to marijuana cultivation or use have the following options:

offensive activities), the board will be better equipped to defend itself based on the legal doctrine commonly referred to as the business judgment rule.

• Regulate marijuana use. If the board wishes to take action to curb marijuana smoke and odor in the community, but the existing provisions of the governing documents are insufficient to achieve this result, the board may want to adopt rules regarding marijuana use. For example, the board may adopt a rule prohibiting marijuana smoke and odors outside the units and/or may require smokers and growers to install air filtration systems and seal their doors.

Contact your community association attorney to assist with drafting rules and ensuring proper adoption.

• Prohibit marijuana use. If your community wishes to prohibit marijuana use, then it may amend its governing documents to include such a prohibition. To ensure that such an amendment is not subject to challenge, contact your community association’s attorney. It is important to consider carefully which document to amend and to ensure there is a vote in favor of the prohibition that faithfully complies with all legal requirements. If a smoking prohibition extends to the units or lots – as opposed to only the common elements or common areas – then we strongly recommend that the association amend its declaration and not merely its bylaws.

In sum, the decriminalization of marijuana cultivation and use by certain states has had minimal, if any, impact to date on an association’s right to determine for itself what is acceptable in its community.

• Grant or deny requests to use medical marijuana on disability grounds. For the reasons stated above, community associations may legally deny requests to use medical marijuana to treat a disability or illness. However, to avoid conflict and oblige sick residents, and in light of the evolving laws, they may choose to grant such requests. It may be helpful for associations to approve requests to use medical marijuana on the condition that the drug be ingested as an edible or some other format that eliminates or reduces any resulting odor and smoke.

• Enforce existing provisions in the association’s governing documents. Most community associations have a provision in their bylaws prohibiting noxious or offensive activities. If one resident is smoking marijuana and the smoke bothers another resident, the association may enforce this provision, including by imposing fines on the smoker. Check with your community association attorney to see what sanctions are available in light of your community’s documents, and whether there are prerequisites to imposing sanctions, such as notice and an opportunity to speak before the board of directors.

• Do nothing. A community association may wish to stay out of a dispute between neighbors regarding marijuana, especially given the progressive legal climate on the subject. If your association prefers this approach, we recommend that its board of directors take an official vote on the subject and that the board meeting minutes include the vote. This way, if the resident taking issue with the smoke or odor claims the association failed to enforce its governing documents (for example, the provision prohibiting noxious or APRIL 2019

| 31

By Kristen C. Barry Kristen is a Human Rights Specialist III and serves as Fair Housing Program Manager with the Fairfax County Office of Human Rights and Equity Programs, where she manages all aspects of the Fair Housing Program. She has previously held roles as a civil rights testing program manager, disability rights program coordinator, and a clinical research coordinator. Kristen received a Juris Doctor degree from American University, Washington College of Law, and a Bachelor of Science in Biology from Emmanuel College.

: FAIR HOUSING IS THE LAW air housing at a basic level is a freedom of choice. It is the right of all persons to apply for and be considered for the housing of their choice, in the neighborhood that they choose, and that they can qualify for. It is important that community associations have a good understanding of Fair Housing, first, because it is the law. Federal, state, and local laws governing Fair Housing are important

tools for eliminating discrimination. Second, because where a person lives matters in determining access to good schools, transportation, jobs, safety, and environment. Particularly in areas such as the greater DMV metro region, where there is a limited amount of affordable housing, any constraint on a person’s ability to apply for, or fully enjoy their housing, can have far reaching affects into every area of life.

The Fairfax County Office of Human Rights and Equity Programs (OHREP), enforces the Fairfax County Human Rights Ordinance (Ordinance). The Ordinance prohibits discrimination in the areas of housing, public accommodations, employment, credit facilities and private education.

Under the Ordinance it is illegal to discriminate against any person on the basis of his or her membership in a protected class. In the area of housing, OHREP receives and investigates complaints filed by any person who believes they have been discriminated against in Fairfax County on the basis of the protected classes: race, color, sex, religion, national origin, familial status, disability, marital status, or elderliness (55 years of age or older).

Community associations should stay up to date on changes in the state and local fair housings laws in the jurisdictions they serve. While the seven federally protected classes, race, color, sex, national origin, disability, religion, and familial status apply everywhere, additional protections may differ by jurisdiction.

For example, the District of Columbia Human Rights Act includes many additional protections in the area of housing such as source of income and sexual orientation.

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An individual may file a complaint with OHREP within one year of when the alleged discriminatory housing practice occurred or ended. OHREP maintains certification through U.S. Department of Housing and Urban Development’s (HUD) Fair Housing Assistance Program. This means the Ordinance has been deemed by HUD to be substantially equivalent to the federal Fair Housing Act. If a complaint is filed with OHREP, and the alleged discriminatory acts are covered under federal laws enforced by HUD,

OHREP will dual file the complaint with HUD. Only one agency will conduct the investigation.

The most common complaints filed with OHREP involve disability related issues, including allegations involving the delay or denial of reasonable accommodation and reasonable modification requests.

A reasonable accommodation request is a request by an individual with a disability for a change in a rule, policy, or practice that is needed to enjoy the full use of a residence, available facilities, and amenities. A reasonable modification request is a structural change needed to make full use of and enjoy a residence, facilities, and amenities. Reasonable accommodation or modification requests require an individualized analysis of the facts and circumstances surrounding the specific request.

Community associations should be educated on what constitutes a disability, who qualifies, who is responsible for the costs associated with an accommodation or modification, what questions are appropriate to ask, and what documentation can be requested. Further, it is important for community associations to stay up to date on changes to the laws in the jurisdictions they operate in. For example, community associations operating in Virginia should be aware that in 2017, the Virginia General Assembly approved amendments to the Virginia Fair Housing Act. The amendments included setting out the rights and responsibilities of an individual who maintains an assistance animal in a dwelling. Va. Code Ann. § 36-96.3:1.

Representatives of community associations that are responsible for drafting policies and rules for communities should be knowledgeable about fair housing laws. A best practice when drafting rules or policies is to avoid singling out any one type of person or protected class. For example, community rules on noise or behavior should not limit the activities of families with children by stating that children only are prohibited from an activity. Further, all rules should be applied equally in the same manner to all applicants or residents regardless of their protected class. If, for example, a community has a rule the requires carpeting for noise reduction, this rule should be enforced equitably against all residences.

In addition to enforcement activities, OHREP provides education and outreach services to the community. Services include free trainings for landlords, real estate professionals, property managers, lenders, and other housing professionals, as well as disseminating information to and training for the general public. For more information, contact your local office.

Resources Virginia DPOR http://www.dpor.virginia.gov/FairHousing/ DC https://ohr.dc.gov/ Maryland State Commission https://mccr.maryland.gov/Pages/Housing-Discrimination.aspx

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APRIL 2019

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By Sara J. Ross, ESQ. Sara is an attorney at Chadwick, Washington, Moriarty, Elmore & Bunn, where she has practiced community association law for fifteen years. She has been an active member of CAI. Sara has served on five different WMCCAI committees, several subcommittees and a task force, and served as committee chair for the Membership and Marketing Committee in 2005. Since 2017, Sara has been the co-chair of the Public Outreach Committee. She was awarded the Rising Star Award in 2005. Sara also writes articles for Quorum and other trade publications as well as speaks at chapter education sessions.

Pool Season is Coming

Is Your Community’s Pool ADA Compliant?

S

ummer is around the corner, when thoughts turn to sunshine, vacations, and hanging out and having fun at the community pool. Unless you are a community association board member or community manager. In that case, your thoughts likely turn to locking in pool contracts, making pool repairs, ordering supplies, updating pool policies and lifeguard orders, and figuring out and distributing this year’s pool passes. With the growing checklist to get ready for pool season, let’s throw in one more item: ADA compliance.

ADA compliance? Whatever do you mean?

This is a community association and our facilities are privately owned?

Oh yeah? Do you sell memberships to neighboring communities? Do you allow the local lodge to rent out the pool for their annual summer frolic? Do you charge a fee, or take a cut of the proceeds and/or concessions to host swim meets? If so, your pool may be subject to Title III of 42 U.S.C. 126, the Americans with Disabilities Act of 1990 (“ADA”).

The ADA and Standards for Accessible Design In 2013, the 2010 accessible pool design requirements of the ADA Standards for Accessible Design (“Pool Standards”) went into effect for existing pools. Under the Pool Standards, pools in excess of three hundred (300) linear feet (with some exceptions) must provide two (2) accessible entry points into the pool. The entry points should be in different locations, and can be made of lifts, sloped, entries, transfer walls 34 | QUORUM

or accessible pool stairs. For wading pools, spas and swimming pools under three (300) linear feet, there must be one accessible entry point.

Since going into effect, there has been confusion and questions among community associations about whether the new “Pool Standards” apply to their association’s pool, especially when there are outside memberships and/or swim teams involved. How you use your pool and who has access may affect whether or not your association needs to comply.

Who Needs to Comply?

Whether or not your association must comply with the Pool Standard depends upon if the pool area in question is considered a place of “public accommodation” as contemplated by Title III of the ADA. Title III of the ADA applies to private entities and facilities and defines a “public accommodation” as a facility whose operations affects commerce and fall within one of 12 specified categories of the ADA. For associations, the relevant category is “places of exercise or recreation.”

The key in determining whether or not your private pool and/or facilities is considered a place of public accommodation is if the use of the pool or facility generates income for

the association. Or, in ADA-speak, “affects commerce.” Associations that sell outside pool memberships and/or rent their facilities to the general public are likely subject to the ADA and the Pool Standards. Those that restrict the use of its swimming pool and facilities to only its members and their guests are likely not subject to the ADA.

Swim Teams and the ADA But, how are swim teams figured in to determining whether or not the association is subject to the ADA? After all, swim teams often involve public swim meets held at the pool and may involve non-association team members. The existence of a swim team does not automatically subject the association’s pool to the ADA. Again, it comes down, in part, to whether or not the swim team and the use of the pool affects commerce.

The first thing to look at is the construction of the swim team. Is it a separate entity from the association, or is it a committee or otherwise part of the association? If it is a separate entity, does it pay the association for use of the pool? Does it pay the association a portion of the revenue from concessions? Is the swim team comprised entirely of members of the association, or does the team allow non-association members to participate, and at what percentage rate? If the swim team is a separate entity, comprised largely of non-association members who pay the association for the use of the pool, then the pool in question is likely subject to the ADA. However, if the swim team is part of the association and restricts membership on the team to primarily association members and is not

J O B

P O S T I N G

Portfolio Manager - Associa The Portfolio Manager is responsible for providing the overall supervision of condominium associations within their portfolio.

The Portfolio Manager interacts with internal and external customers including homeowners, board members and committee members, as well as staff at the branch, regional and national levels within Associa.

Job Duties and Responsibilities: • Supervise the operation and administration of the Association in accordance with management agreement and the Association’s policies and procedures.

• Oversees and supports the primary liaison (General Manager) with the Association Board of Directors and homeowners as needed.

• Ensures that Associa community management tools are being effectively developed and utilized by the on-site staff such as annual calendar, action item list resolution worksheets, timed agendas, RFP matrixes, committee charters, procurement procedures, FY operating budget, etc.

• Review monthly financial reports and ensure management summary is submitted to the association Board of Directors.

• Monitor corporate and client delinquency rates and collections process for account portfolio.

• Attend Board meetings and community events per the management agreement • Assist Board of Directors/ARB with architectural review process and/or routine inspections as necessary • Responsible for maintenance of C3 data base, including updating resident information.

• Responsible for oversight of Associa staff and/or Association Staff as contract provides.

required to pay a rental fee for the use of the pool, the pool in question is likely not subject to the ADA. But what if the swim team holds swim meets at the association’s pool?

The use of an association’s pool facilities for swim meets seems to cause the greatest concern and angst among associations, as it is not clear from the ADA, or its regulations, whether a swim meet, which occasionally causes the association’s swim facilities to be accessible by non-members of the association, converts the otherwise private facilities into a place of public accommodation.

The ADA and the courts have not provided much in the way of guidance. However, what guidance there is indicates that under the right circumstances, a community association’s pool can be occasionally

• Oversee the AP process in accordance with the Associa home office processes and procedures.

• Knowledge of Microsoft Office products (Word, Excel, Outlook, etc.) at a proficient level.

• Knowledge of communities/property/real estate and homeowners associations.

• Knowledge of the role of the association board, the Community Association Manager, and how those roles interface with the requests of homeowners.

• Knowledge of typical business correspondence (grammar, structure, punctuation, spelling, etc.) at a proficient level.

• Knowledge of conflict resolution techniques at a proficient level.

• Professional communication skills (phone, interpersonal, written, verbal, etc.).

• Professional customer service skills.

• Self-motivated, proactive, detail oriented and a team player.

• Time management and time critical prioritization skills.

• Associates Degree Required • Bachelor’s Degree Preferred • CMCA preferred Job Type: Full-time Job Level: Management Industry: Property Management Company Name: Associa Location: Chantilly, VA Required Travel: Portfolio Manager travels between the properties that are in his/her portfolio Posted: February 14, 2019 TO APPLY: To apply please visit https://recruiting.adp.com/srccar/public/RTI.home?c=2174407&d=ExternalCareerSite

used for swim practices and/or swim meets, involving non-association members, and still be exempt from Title III of the ADA. However, the odds of being deemed a public accommodation go up when the association is receiving income from the swim team, the swim meets and/or swim practices.

What Now? Before your association dissolves the swim team, or goes out and purchases pool lifts, it should consult with the association’s legal counsel to determine whether or not it falls within the ADA Pool Standards. It may be that the current use does not trigger the ADA, or it may require significant changes to the association’s policies and procedures.

In any event, before the summer pool season kicks off, a full review of the use of the pool facilities is probably in order.

APRIL 2019

| 35

By Lauri Ryder, CIC, CRM, CMCA Lauri works for Sahouri Insurance & Financial and has 14+ years of experience in the real estate insurance industry specializing in homeowners and condominium associations. Prior to insurance, she worked in the community association management industry. Lauri is a CMCA (Certified Manager of Community Associations), a CIC (Certified Insurance Counselor), and a CRM (Certified Risk Manager).

Will Your Insurance Program Respond to a

Fair Housing Complaint?

C

ommunity Boards sometimes have to juggle their budget versus coverage.

Many associations choose to include their Directors & Officers Liability (D&O) coverage on their Package or General Liability policy. However, that may not be the best coverage option when it comes to Fair Housing complaints.

Why is proper coverage important?

A community board of directors regularly makes decisions on behalf of the entire association regarding architectural guidelines, parking, late fees/penalties, etc. With so many people involved there are bound to be some hard feelings, and some may feel they have been treated unfairly. Over

the years, I’ve seen a number of D&O claims filed due to owners or tenants feeling they have been discriminated against based on a protected status.

The National Fair Housing Alliance began tracking data in 1996. In 2017, the number of Fair Housing Complaints filed nationwide increased nearly 70% since that initial year – with a total of 28,843 filed. (Making Every Neighborhood a Place of Opportunity, 2018 Fair Housing Trends Report, p. 13) According to a major insurance carrier, there has been a 54.7% increase in discrimination claims filed against community associations since 2015. This increase is likely due to recent trends in social media advocacy.

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While a number of claims resolve in a range up to $10,000, there is a much higher frequency of payments made in the $50,000 - $100,000 range. It is therefore fiscally prudent to confirm with your insurance broker that you have the appropriate coverage.

So, what should you know?

An un-endorsed General Liability policy will not provide coverage for a Fair Housing Complaint. General Liability covers bodily injury, third party property damage, and personal/advertising injury. An Association should always have D&O liability coverage – which would be the coverage which would appropriately respond to Fair Housing complaints.

In general, when D&O liability is added, or endorsed in insurance parlance, to a General Liability or Package policy, coverage is limited. Often those endorsements do not include coverage for discrimination. If discrimination is excluded, you may be paying for your response to (or defense of) a complaint out of association funds. Generally, the largest portion of a claim is the cost of defense. So even if your association is eventually cleared of a Fair Housing Complaint, you could still be at risk for significant uninsured defense expenses.

A separate D&O liability policy issued on a program specific to community associations provides much broader coverage than an addendum to the General Liability policy.

These specialized programs include coverage for discrimination and Fair Housing complaints. There are many programs out

57% ON THE BASIS OF DISABILITY

7% ON THE BASIS OF SEX

19% ON THE BASIS OF RACE

9%

7%

ON THE BASIS OF FAMILIAL STATUS

ON THE BASIS OF NATIONAL ORIGIN

1.3%

1.4% ON THE BASIS OF COLOR

ON THE BASIS OF RELIGION

8% OTHER STATE/ LOCAL PROTECTION

there that are designed for other types of businesses, so make sure Acarefully || 2018 Fair Trends Report 60 2018choosing Fair Housing Housing Trends Report your agent is the D&O program that best suits a community association’s unique coverage needs.

There are a few key points that you should confirm with your insurance agent. The checklist below can help guide your conversation: • Is there a Participation Clause (i.e. will the association bear a percentage of any claim outside of the retention/deductible?)

• Discrimination • Employment Practices Liability • Non-Money Damages • Prior Acts • Employees • Volunteers & Committee Members • Elected AND Appointed Board Members (Be careful - some carriers specify only elected board members.)

• Coverage for Failure to Procure or Maintain Adequate Insurance • Coverage extended to the property manager or managing agent There are several programs available which are specifically designed for the needs of community associations and their managing agents.

If you are unsure whether your current policy would provide coverage for a Fair Housing complaint, contact your agent for confirmation.

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01/10/18 3:39 pm

By Jim Wisniewski Jim is the Director of Sales for Northstar Technologies based in Alpharetta, Georgia. Jim has also served as a General Manager of several properties as well as HOA President of several communities across the U.S.

ALL IS FAIR IN LOVE AND ON SOCIAL MEDIA

F

airness. Simply defined, it’s the impartial and just treatment or behavior without favoritism or discrimination.

While we have all heard the adage, “Life is not fair,” and we know from life’s experiences that this is indeed true, concerted effort goes into making sure that fairness is experienced in as many areas of life as possible.

When we recognize that things are not as equitable as they should be for all parties, we act to ensure that this ideal is realized. One such action is to make sure that all parties are abiding by the same set of rules.

Imagine for a moment that you are part of a basketball team and you are playing for a national championship. You would assume that the fundamental rules of the game would be adhered to and that the referees assigned to officiate the game would be impartial and just to both teams. However, it becomes immediately apparent that the other team is benefitting from a different set of rules, one where traveling is no big deal and a hip check by a defender is met with a shrug from the referee. While you were following the rules, someone else changed the game without your knowledge, which gave your opponent an unfair advantage.

This is exactly what happened to individuals who were simply looking for homes to rent or buy on Facebook in October of 2016.

Facebook’s ad targeting tools allowed advertisers of housing and housing-related services to discriminate by effectively removing potential ads from virtually anyone that they wanted to exclude. These advertisers could show ads to only men or only women. They

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could eliminate certain zip codes and include others which led to targeting of certain groups based upon social-economic factors such as income, ethnicity and religion.

Have you ever noticed that after looking up a particular topic on the internet, all of a sudden, your Facebook newsfeed is littered with ads related to that particular search. That is not a coincidence. One of the “super powers” of Facebook in that it can data mine every keystroke, search and article that you have ever looked at, giving advertisers the ability to sort individuals by a myriad of interests and searches.

If you were a dual income, no kid family looking for a rental in Arlington, you would not see the same housing options if you were a single parent, low to moderate income family with three children looking for a rental in Arlington – even if both families searched “available rentals in Arlington VA.” Whomever the advertiser wanted to include or exclude, they could and they did. This gave families with higher incomes a disproportionate advantage over families with lower incomes. The lower income families never saw the advertisements for potential properties and because of the dis-

parity they lost their opportunity to access to these properties.

After the first discovery of these egregious behaviors, Facebook agreed to put new procedures and measures in place to update its terms of service for advertisers and build tools that would allow it to disable its “ethnic affinity option” for ads offering housing. In February of 2017, Facebook rolled out these fixes only to be discovered yet again in November 2017, when reporters were able to purchase ads still eliminating most people from their searches. This is when the National Fair Housing Alliance came onto the scene filing a lawsuit in March 2018 against Facebook. Shortly thereafter, HUD filed a complaint in July 2018.

Obviously, the social media universe does not begin and end with Facebook. There are numerous social media outlets available to advertisers to market communities. With so much access at our fingertips, we as home builders, developers, managers and other business professionals in the community association industry must ensure that we are not being discriminatory in our approaches to our advertising as we look to market our own properties on whatever social media platforms we choose.

The very first thing that we need to do is to train everyone in fair housing practices, ideas, concepts and the actual law. The law says you can’t “make, print, or publish. . . any notice, statement, or advertisement . . . that indicates any preference, limitation, or discrimination based on a person’s race, color,

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religion, sex, handicap, familial status, or national origin.” That includes such things as applications, flyers, brochures, deeds, signs, banners, posters, billboards, and even pictures in your office. It also means that the things you say about your property in writing, over the phone or in person are covered. Expressing an illegal preference or limitation to one of your fellow agents, brokers, employees, prospective sellers, renters, or to any other person in connection with the sale or rental of your property is illegal. Before being given access to your social media accounts, each person should complete fair housing training and acknowledge your company’s policies and procedures – and make sure that everyone who has access to your social media accounts goes through the training!

Next, we should always show diversity in images. Consider all federal, state, and locally protected classes. For example, show men and women, diverse ethnicities, people with disabilities, a variety of ages, and families with and without children, and don’t forget to include pets, if allowed in your communities. If you are using drawings of people, show diversity in these, too! The objective is inclusivity in your advertising and marketing.

Thirdly, you want to use wording that positions your community as a place that everyone can call home! Social media messages must not position your community as more or less suitable for someone based on membership in a protected class. Just like what was mentioned above, avoid racial or ethnic terms, references to religion, exclusions based on disability, and limitations based on familial status. Just describe what a great place your community is in which to live.

Lastly, appoint someone to monitor your social media sites and the posts that are created there. You want to be careful to avoid any posts in which prospective or current residents indicate they feel they’ve been treated unfairly, feel unwelcome in the community, or would feel be discouraged from living there.

Social media is a great way to get the word out on all of our wonderful communities. Let’s just make sure everyone gets to hear the same story, the right way!

703-642-3246 | 6395 Little River Turnpike Alexandria, VA 22312 | northernvirginia.sentrymgt.com 540-751-1888 | 602 S. King Street, Suite 400 Leesburg, VA 20175 | loudoun.sentrymgt.com

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Directory and Classifieds AMUSEMENT & PARTY RENTALS

ENGINEERS (CONT’D)

Fantasy World Entertainment 124 Jibsail Drive T: (800) 757-6332 Prince Frederick, MD 20678 www.fwworld.com Brooks Grady brooks@fwworld.com

ETC Engineering and Technical Consultants Inc. Water intrusion, roofing, exteriors, windows, balconies, property studies, structural & architectural services www.etc-web.com T: (703) 450-6220 Mindy Maronic mindy@etc-web.com

ASPHALT PAVING/MAINTENANCE/REPAIR GENERAL CONTRACTOR

Brothers Paving & Concrete Corporation 9469 Hawkins Dr T: (703) 393-1927 Manassas, VA 20109 F: (703) 393-1928 Paul Battista info@brotherspaving.com Espina Paving, Inc. Asphalt/Concrete 15441 Farm Creek Drive T: (703) 491-9100 Woodbridge, VA 2191 F: (703) 491-9101 Serving: MD, DC, VA info@espinapaving.com ATTORNEY

COWIE & MOTT, P.A. T: (202) 670-6289 2310 Boston Street www.cowiemott.com Baltimore, MD 21224 Nicholas D. Cowie ndcowie@cowiemott.com McMillan Metro, P.C. Real Estate & Development Lawyers 7811 Montrose Road, Ste. 400 Potomac, MD 20854

McMillanMetro.com T: (301) 251-1180

BANKING AND FINANCIAL SERVICES

BB&T Association Services www.bbt.com Let us save you time and money with our lockbox processing, ACH, coupon book, statement printing and transmission services.

Tavarious Butts T: (703) 284-0561 Tavarious.Butts@BBandT.com WINTRUST Community Advantage T: (734) 276-3330 Metro DC www.communityadvantage.com Kim Myles kmyles@communityadvantage.com A leading provider of financial services to condominium, townhome, and homeowner associations.

ENGINEERS

The Falcon Group www.falconengineering.com 7361 Calhoun Place, Suite 325 Rockville, MD 20855 T: (240) 328-1095 Stew Willis info@falconengineering.com

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Ploutis Contracting Co, Inc. T: (703) 360-0205 8365 Richmond Hwy F: (703) 360-5439 Alexandria, VA 22309 info@ploutiscontracting.com Stella Ploutis www.ploutiscontracting.com HEATING, VENTILATING, AIR CONDITIONING

Advanced Building Services, Inc. 23475 Rock Haven Way #135 T: (703) 661-4280 Sterling, VA 20166-4444 www.advanced-building.com Deborah Ammann dammann@absi1.com JANITORIAL

Caldwell & Gregory, Inc. Your Commercial Laundry Professionals 129 Broad Street Road Manakin-Sabot, VA 23103

T: (804) 784-6100 F: (804) 784-7418

Clean Advantage Corporation 4000 Pen Belt Place T: (800) 315-3264 District Heights, MD 20747 F: (301) 595-3331 www.cleanadv.com info@cleanadv.com MANAGEMENT SERVICES

Associa Community Management Corporation, AAMC 4840 Westfields Blvd, Suite 300 T: (703) 631-7200 Chantilly, VA 20151 www.cmc-management.com John Tsitos, CMCA, AMS, PCAM jstitos@cmc-management.com Barkan Management Company, Inc 8229 Boon Blvd., Suite 760 T: (703) 388-1005 Tyson Corner, VA 22182 F: (703) 388-1006 Michael Feltenberger, cmca, ams, pcam Capitol Management Corporation 12011 Lee-Jackson Highway, Suite 350 Fairfax, VA 22033 L. Peyton Harris Jr., cmca, cpm lph@capitolmanagementcorp.net

T: (703) 934-5200 F: (703) 934-8808

Cardinal Management Group, Inc., AAMC 4330 Prince William Parkway, Suite 201 T: (703) 569-5797 Woodbridge, VA 22192 www.cardinalmanagementgroup.com cardinal@cardinalmanagementgroup.com Thomas A. Mazzei, CMCA, AMS, PCAM

MANAGEMENT SERVICES (CONT’D)

CFM Management Services, AAMC 5250 Cherokee Ave, Suite 100 T: (703) 941-0818 Alexandria, VA 22314 F: (703) 941-0816 Christiaan Melson, ams, pcam c­­­­­­­­melson@cfmmanagement.com CAMP, AAMC (Community Association Management Professionals) www.gocampmgmt.com T: (703) 821-CAMP 4114 Legato Road, Suite 200 Fairfax, VA 22033 hgraham@gocampmgmt.com 209 West Street, Suite 302 Annapolis, MD 21401 sblackburn@gocampmgmt.com Comsource Management, Inc. AAMC www.comsource.com 3414 Morningwood Drive T: (301) 924-7355 Olney, Maryland 20832 F: (301) 924-7340 Gary M. Simon, cmca, ams, pcam gsimon@comsource.com FirstService Residential DC Metro LLC, AAMC 11351 Random Hills Road, Suite 500 T: (703) 385-1133 Fairfax, VA 22020 Robert Teeling robert.teeling@fsresidential.com KPA Management, AAMC www.kpamgmt.com 6402 Arlington Blvd., Suite 700 T: (703) 532-5005 Falls Church, VA 22042 F: (703) 532-5098 Offering personalized service Ed Alrutz, cpm, cmca, pcam ealrutz@kpamgmt.com Legum & Norman Inc. AAMC 3130 Fairview Park Drive Ste 200 T: (703) 600-6000 Falls Church, VA 22042 www.legumnorman.com Marc B. McCoy, CMCA, AMS MMcCoy@legumnorman.com Sentry Management www.sentrymgt.com 4401 Ford Avenue, Suite 1150 T: (703) 642-3246 Alexandria, VA 22302 602 South King Street, Suite 400 T: (540) 751-1888 Leesburg, VA 20175 Dave Ciccarelli, ams, pcam dciccarelli@sentrymgt.com Sequoia Management Company Inc., AAMC 13998 Parkeast Circle T: (703) 803-9641 Chantilly, VA 20151-2283 www.sequoiamanagement.com Craig Courtney, PCAM ccourtney@sequoiamgmt.com

­­INDEX TO ADVERTISERS A Advanced Building Services, Inc. ...................................................................................................36 Associa-Community Management Corporation, AAMC....................................................................16 Avedon USA.....................................................................................................................................9 B Barkan Management, LLC, AAMC....................................................................................................8 BB&T Association Services.............................................................................................................17 Brothers Paving & Concrete..............................................................................................................4 C Caldwell & Gregory, Inc. .................................................................................................................32 Capital Painting Co.........................................................................................................................17 Cardinal Management Group, Inc., AAMC......................................................................................21 PAINTING SERVICES AND RETAILERS

Capital Painting Co. www.capitalpainting.net 5520 Oakwood Road T: (703) 313-0013 Alexandria, VA 22310 F: (703) 922-1826 George Tsentas george@capitalpainting.net Reston Painting & Contracting 619 Carlisle Drive Herndon, VA 20170 David Hamilton

T: (703) 904-1702 F: (703) 904-0248 dave@restonpaint.com

Williams Professional Painting 110 S. Floyd Street VA: (703) 768-8143 Alexandra, VA 22304 DC: (202) 751-2026 williamsprofessionalpainting.com Rick Williams Rick@williamsprofessionalpainting.com RESTORATION SERVICES

Titan Restoration Co Warrenton, VA T: (540) 349-1503 www.titanrestoration.com F: (540) 349-1512 Anita Puckett apuckett@titanrestoration.com

Clean Advantage Corporation T/A Condominium Cleaning Service..................................................44 COWIE & MOTT, P.A.......................................................................................................................37 D DoodyCalls.....................................................................................................................................31 E Engineering and Technical Consultants (ETC).................................................................................20 F Fantasy World, Inc. dba Fantasy World Entertainment ....................................................................33 The Falcon Group...........................................................................................................................12 FirstService Residential DC Metro, LLC, AAMC................................................................................43 M Mutual of Omaha Bank@Community Association Banking & CondoCerts.......................................33 N Northstar Community Management Software..................................................................................42 P

ROOFING

TWC Services, LLC PO Box 150277 T: (703) 971-6016 Alexandria, VA 22315 www.twcserv.com Linda Walker info@twcserv.com WINDOWS & DOORS

Windows Plus, LLC 4321 Markham Street T: (703) 256-0600 Annandale, VA 22003 F: (703) 942-6987 Kimberly Wayland kknight@windowspls.com

Ploutis Contracting Co., Inc.............................................................................................................43 R Reston Painting Company................................................................................................................2 S Sage Water.....................................................................................................................................11 Segan, Mason & Mason, PC...........................................................................................................26 Sentry Management, Inc.................................................................................................................39 Solitude Lake Management............................................................................................................12 T Titan Restoration Co........................................................................................................................42 TWC Services, LLC..........................................................................................................................23 U Union Bank & Trust........................................................................................................................20 W Williams Professional Painting.........................................................................................................29 Windows Plus, LLC.........................................................................................................................24 WINTRUST Community Advantage Bank.......................................................................................18

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NORTHSTAR

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Exceptional Service is Our Mission.

As greater Washington DC’s property management industry leader, we know what it takes to create great communities that residents are proud to call home. We start by putting the right teams in place – local property experts who deliver our best-inclass solutions, along with genuinely helpful service, to enhance the property values and lifestyle of those we serve.

That’s how we make a difference, every day, for great communities like yours.

8701 Georgia Avenue, Suite 300, Silver Spring, MD 20910 11351 Random Hills Road, Fairfax, VA 22030 923 Maple Grove Drive, Suite 201, Fredericksburg, VA 22407 www.fsresidential.com

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Making a Difference. Every Day.

Proudly serving greater Washington DC communities for over 35 years

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CHAPTER BENEFACTORS

C

WMCCAI 7600 Leesburg Pike Suite 100 West Falls Church, VA 22043 www.caidc.org (703) 750-3644

PRESORT STANDARD US POSTAGE PAID ALEXANDRIA, VA # 5659

OUR MISSION To optimize the operations of Community Associations and foster value for our business partners.

ASPHALT & CONCRETE