The discussion over recordings of association meetings being “public documents” has been going on for many years. Especially since the Chinese Virus created so-called “emergencies”, we saw a sudden increase of Zoom meetings and meetings that were recorded because only a very limited number of owners were allowed to attend.
But what should happen with these tape recordings? That was the $64,000 question. Could the association board members or the community association manager (CAM) just destroy these tapes?
This question came before Judge Kenneth Friedland IN THE COUNTY COURT OF THE 18TH JUDICIAL CIRCUIT IN AND FOR BREVARD COUNTY FLORIDA (Case No. 05-2022-SC-026729-XXXX-XX) and the Judge ruled that the association board and the CAM violated the Florida statutes by destroying the tape in question.
This case sets a precedent and will be published in the Florida Law Weekly and will hopefully serve as a warning to board members and community association managers to not to destroy these important recordings. HOA members have the right to inspect/copy recordings until the recordings are transferred into official written form.
TVHA member Kathryn Favata had made a public record request asking to inspect/copy the audio tape recording of the board of directors meeting held on October 11, 2021. During this meeting Favata was allegedly slandered, but she wanted to hear what was actually said since she had not attended the meeting. During the proceedings of the lawsuit the demand was made to not to destroy the recording.
Dennis Collins (Collins Realty Group Inc.), the CAM acting on behalf of board members Deborah Caldwell, Constance Allen and Diana Benton destroyed the recording anyway, contending that tape recordings are not official records subject to Florida Statutes § 720.303(5). Association attorney Scott Kiernan from the law firm of Becker & Poliakoff obviously supported this opinion. As the association attorney on record, he didn’t stop the recording from being destroyed and was present at presuit mediation, defending the actions of the board during a mediation that ended without a settlement being reached.
The failure of the presuit mediation got the case into County Court and attorney George M. Gingo filed a LAWSUIT on behalf of plaintiff Kathryn Favata. The DEFENDANT’S MOTION TO DISMISS COMPLAINT filed by attorney Bryan D. McLaughlin, the attorney representing the association on behalf of the insurance company, was using the well-known excuse: An audio tape recording is not a written document as described in FS 720.303(3) or (4). The defendant’s motion to dismiss was quickly denied by Judge Kenneth Friedland. (Very interesting Hearing Transcript).
After many more motions and amended motions Judge Kenneth Friedland signed on March 31, 2023, a FINAL CONSENT JUDGMENT FOR PLAINTIFF. In his final ruling the judge stated: “As to Plaintiff’s Count I for violation of Florida Statutes § 720.303(5), judgment is granted for Plaintiff Kathryn Favata.” and “Defendant TVHA is permanently enjoined from destroying tape recordings of Board of Directors meetings until reduced to an official written form.”
I think this judgment is a clear warning for board members and community association managers not to destroy tape recordings. Destroying the tape is costing all members of the Tennis Village Homeowners Association, Inc. in Titusville tens of thousands of dollars – and you can be sure that the next renewal notice for the D&O insurance policy will be a lot higher.
This is another lawsuit that makes me wonder why all community members have to pay for the unwillingness of board members and CAMs to follow the laws!