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The New Jersey Condo Blog

David Ramsey Receives CAI Distinguished Service Award

05/12/2017 Becker Poliakoff
Hearty congratulations go out to J. David Ramsey, shareholder in Becker & Poliakoff’s community association practice group. David was recently honored with the Distinguished Service Award at the Community Associations Institute’s (CAI) Annual Conference Awards dinner in Las Vegas.

The Distinguished Service Award is CAI’s most prestigious award and is periodically presented in recognition of longstanding, extraordinary contributions to the Institute. A member of CAI for over 30 years, David served as president in 2003-04 and remains actively involved in CAI’s Government and Public Affairs Committee, chairs the New Jersey Chapter’s Strategic Planning Committee and is a member of the New Jersey Legislative Action Committee. David has spent the majority of his legal career advocating on behalf of community associations, particularly in New Jersey and New York.


NO BANK ACCOUNT, NO EMPLOYMENT, NO PROBLEM

02/07/2017 Angela Morisco
 
Once a judgment for condominium arrears is entered and various post judgment enforcement remedies have proved unavailing to locate assets, i.e. there are no bank accounts in the debtor’s name and no employment information can be located, there is one more tool in the toolbox!

New Jersey Court Rule 4:59 - 1 (d) (1) permits a judgment creditor to file a motion for an order to sell real property where the judgment debtor's assets are insufficient or cannot be located. The Appellate Division recently reversed an order denying such relief where the lower court held that notice to the mortgagee was a prerequisite. The relevant consideration under the rule is whether the judgment creditor made reasonable efforts to locate personal property. If you have an unsatisfied judgment, this remedy may be available as an alternative to a lien foreclosure. This strategy has been effective to bring delinquent condominium owners to the table when no bank accounts or employment can be located.

Submitted by :  Angela M. Morisco, Esq.

CondoMundoUSA

Votación Por Linea - Video

10/18/2016 Martica Miguez Platts



Si usted vive en una comunidad residencial que está dirigida u operada por una asociación, o si usted sirve en la junta directiva de la comunidad, quizás desee obtener la comodidad de votación por línea.   Nuestra firma de abogados acaba de lanzar un breve video de instrucción sobre nuestro producto por línea llamado BPBALLOT.   Dedíquele unos minutos a este video.
La votación por línea le permitirá a su comunidad aumentar la participación de su membrecía a la vez que reducirá la posibilidad de fraude electoral.  Estamos seguros que usted disfrutará y obtendrá beneficios del video.  Si tiene cualquier pregunta, por favor envíenos un correo electrónico a condomundousa@bplegal.como llámenos al 561-820-2870. 

Martica y Marilyn
Sus amigas de CondoMundoUSA






Estudio de Votación y Fraude en las Asociaciones / Community Association Voting and Fraud Survey

06/17/2016 Martica Miguez Platts
CondoMundoUSA les trae el Estudio de Votación y Fraude.  Este estudio tiene el propósito de identificar las preocupaciones relacionadas con el proceso de votación de los miembros de las asociaciones de comunidades.  Los resultados ayudarán a crear materiales educativos y ayudarán a encabezar cambios en las disposiciones legales que gobiernan el método de votación en las comunidades.

Solamente le tomará 5 minutos haga "click" en el idioma que prefiera. 

Español                       Inglés

Gracias, 

Martica y Marilyn


***************


CondoMundoUSA has created a survey intended to help identify concerns of community association members related to voting. The results will help create educational materials and help spearhead changes in statutory provisions governing voting in communities.

It should only take 5 minutes, please click on your preferred language.

Spanish                       English



Thank you, 


Martica & Marilyn

The Community Association Law Blog

YOU ASKED AND WE DELIVERED! Florida High-Rises Achieve ELSS Opt Out Rights!

05/04/2017 Donna DiMaggio Berger
YOU ASKED AND WE DELIVERED!

To all existing Florida high-rises who previously opted out of sprinkler retrofits only to be told by their local fire marshals that they still had to install....sprinklers, only this time as part of an Engineered Life Safety System (ELSS), I'm delighted to tell you that your Becker & Poliakoff Lobby Team delivered on a promise and a passion to ensure that your residents have the right to determine for themselves how to handle this costly issue in their buildings.

Thank you to all the high-rise communities who joined our ELSS Opt Out Lobby group and carried the water on this bill and a huge thank you to our Lead Lobbyist, former State Senator and B&P Shareholder Ellyn Bogdanoff.

Fire Sprinkler/ELSS/Bulk Buyer Bill, by Rep. Moraitis and Sen. Passidomo (HB 653 and HB 744)was approved by both the House and Senate and will be sent to the Governor for consideration. It will become effective on July 1, 2017. We are hopeful that the Governor will visit our friends on the Galt Ocean Mile in Ft. Lauderdale who have worked so diligently on the sprinkler issue for well over a decade to sign the bill personally.

 Among other items, the bill will allow high rise buildings to opt out of an engineered life safety system (ELSS). The required vote to do so is two-thirds of all voting interests. This bill also clarifies that non-high rise buildings (under 75 feet) are not required to retrofit with sprinklers or an ELSS. The new law will also require condominium and cooperative associations that operate a building of three stories or more that have not installed a sprinkler system in the common areas of the building to mark the building with a sign or symbol approved by the State Fire Marshal in a manner sufficient to warn persons conducting fire control and other emergency operations of the lack of a sprinkler system in the common areas.


 No other community association law firm in Florida was seen or heard on this issue. This success proves that targeted advocacy on significant community association issues by a capable team and engaged communities is possible. Please be sure to speak with your B&P attorney after July 1st to set up your ELSS Opt Out vote if you are inclined to do so. If your association has any questions regarding this new law or your options, please feel free to contact me at dberger@bplegal.com or by phone at 954-364-6031.

Be prepared to answer the question "Why?" if you want to defuse conflict in your community

04/30/2017 Donna DiMaggio Berger
"Why can't we use the pool after dusk?" the wiry man at the microphone bellowed. "I've been a swimmer my whole life and I need to use the pool to stay in shape" and with that statement, he pointed to his trim waistline to indicate how well his exercise regimen had been working.

I waited along with the audience to see how the President who was chairing the meeting would respond.  Instead of discussing the safety concerns she had articulated to me earlier regarding night-time swimming in an unlit pool as well as a desire to save money by not having to heat the pool after hours, she chose, instead, to brush the mater off with a "because we said so" response and called for the next person who had a question to come forward. The swimmer's face reddened and he immediately voiced his outrage, launching into a full-scale denouncement of "this board's policies and arbitrary decisions."

I knew that this would not be the last the board would hear from this owner; likely his affront at the response would find other outlets, including repeated document inspection requests and perhaps even a recall initiative at some point. This was my third Board meeting that week and they all had involved, at some point, association members questioning the wisdom of one or more board rules.  Experience has taught that whenever you tell people what they must do or what they must refrain from doing, you will almost certainly be met with the question, "why?"  How a board member or manager responds to this questions can either inflame the situation or defuse it.

With the recent United Airlines kerfuffle still in the news, more people have been discussing the right and wrong ways to enforce policies.  Do you use a carrot, a stick or alternate between the two?  When a passenger was forcibly pulled off one of United's planes, there were differing opinions about which party bore the greatest blame. Some blamed Dr. Dao for failing to cooperate when the police arrived while others saw an abuse of power and poor decision making on the airline's part in ejecting a customer who had paid for a seat.  Lastly, the initial statements made by the company's CEO that he regretted having to "re-accommodate" a customer were seen as downplaying the aggressive actions taken and only served to inflame an already sensitive situation.

When it comes to association rules and regulations, many boards prefer a stick and a big one at that.  My job as association counsel is to ensure that boards can successfully enforce the rules they pass, otherwise they risk losing both credibility and control.  A successful rule protocol has to (a) identify a real not imaginary problem (b) craft a reasonable rule to solve that problem and (c) communicate (a) and (b) to the individuals against whom the rules will be imposed.

If your board has a rule that requires head-in parking in the association parking lot, you might want to explain in your rules booklet and/or at the meeting where you will adopt that rule that you are doing so to avoid visibility issues and potential accidents as tail-in parking impedes the adjacent walkway.  If another rule provides that renovation work can only be done within the units during certain times and months, you can improve compliance by including an explanation that the times and dates were chosen to minimize inconvenience to other residents when the community is most heavily occupied.  If an owner understands that enforcement of the rule can also benefit them when a neighbor or other occupant violates same you might just have the "aha" moment which encourages compliance.  Rules that are seen as petty or unnecessary are the most likely to result in your owners ignoring or openly defying same.

Volunteer boards can increase the likelihood of their members' voluntary compliance if they let them know why they have made certain decisions. Sadly, in some instances, a reasonable explanation will not satisfy certain members who cannot be assuaged regardless of the message conveyed.  In those instances, enforcing rules violations can include levying fines, suspending use rights, denying lease approvals and, in the most egregious cases, pursuing arbitration and/or injunctive relief in court. However, don't assume that the rationale for even the most basic rules will understood by all your members and, without understanding, you cannot count on voluntary and consistent compliance. 

When you explain the rationale for a rule, you are showing respect. For most people that will be enough as it allows them to comply while saving face.

As for the man who lamented his inability to engage in his nocturnal swimming habit, he joined the board a few years later and became one of the more vociferous proponents of that rule when he bore the responsibility of being a director.

Biz Law Today

What Is “Product Hopping” and Why Should You Care?

08/04/2015 Becker & Poliakoff

ThinkstockPhotos-97429646This post was authored by Ann Marie Effingham, an intern for Becker & Poliakoff who is based out of the firm’s Red Bank, New Jersey office.

New Jersey is home to 14 of the world’s 20 largest pharmaceutical companies so when our sister circuit—the Second Circuit Court of Appeals—issued a decision of first impression regarding pharmaceutical patents, we should take notice. To summarize, the state of New York brought an antitrust action against Actavis PLC claiming the manufacturer’s introduction of the once-daily capsule that treats Alzheimer’s disease at the end of the manufacturer’s patent exclusivity period for the twice-daily tablets impeded competition in violation of the Sherman Act. The Southern District of New York granted a preliminary injunction barring Actavis PLC from restricting access to the twice-daily version until after generic competition entered the market, and the Second Circuit Court of Appeals affirmed the injunction.

The Second Circuit Court of Appeals explained that neither product withdrawal nor product improvement alone is anticompetitive. However, when product withdrawal is combined with some other conduct—the overall effect of which coerces consumers and impedes competition—a manufacturer’s actions are anticompetitive under the Sherman Act.

The Actavis PLC case is an example of “product hopping”—whereby a manufacturer introduces a “second-generation” formulation of a drug and removes the previous formula that is nearing the end of its patent lifecycle which then restarts the regulatory approval process for the generic manufacturer. In theory, a manufacturer could keep reformulating its patented product if it can show that continuous improvement in the drug is being made. However, under some circumstances this type of behavior is anti-competitive. Generic manufacturers enter the market at the end of the brand name’s patent lifecycle so when a brand name manufacturer engages in “product hopping” it keeps generic manufacturers from entering the market—which could ultimately lead to a monopolization.

So what does this mean for the biopharmaceutical and medical device industry? The timing and rationale behind product reformulation is key. When product redesign is done simply to coerce consumers and impede competition, it is anticompetitive under the Sherman Act. The Second Circuit Court of Appeals noted that Actavis PLC’s own CEO admitted that the Defendants were “trying to . . . put up barriers or obstacles” to generic competition. Conversely, a large market share that is gleaned from natural growth, development of a superior product while simultaneously giving consumers the option of choice between products, or exceptional business acumen are all justifiable explanations for why a manufacturer may control a significant portion of the market.

A second product hopping case has arisen in the Third Circuit Court of Appeals. There, the Federal Trade Commission (FTC) has filed an amicus brief strongly supporting antitrust causes of action against companies that product hop. Hopefully the Third Circuit can provide more insight as to how to evaluate product hopping cases.

Employers Beware: You May Be Liable to Whistleblowers Without the SEC Ever Getting Involved

07/28/2015 Becker & Poliakoff

ThinkstockPhotos-184747120 (1)This post was authored by Peter Wojcik, an intern for Becker & Poliakoff who is based out of the firm’s New York office.

On June 17, the Second Circuit U.S. Court of Appeals heard oral arguments in Berman v. Neo@Ogilvy, LLC, making it the latest court to venture into the arena of interpreting Dodd-Frank’s whistleblower provision. In Berman, U.S. District Judge Gregory H. Woods of the Southern District of New York held that, before a whistleblower may be protected under Dodd-Frank’s whistleblower anti-retaliation provision, he or she must report securities violations to the SEC. This stands in stark contrast to other district court decisions that have allowed individuals to sue if they only disclosed the violations to their employers.

In Berman, the plaintiff alleged that he was fired after complaining to his employer about seeing transactions that he believed to violate U.S. securities laws, including Sarbanes-Oxley and Dodd-Frank. Never having reported these violations to the SEC, the plaintiff sued his former employer, alleging violations of Dodd-Frank’s whistleblower provision. The provision essentially prohibits an employer from retaliating against a “whistleblower” who:

  • Provides information to the SEC concerning violations of securities laws;
  • Initiates, testifies in, or assists in any investigation or judicial or administrative action of the SEC; or
  • Makes disclosures that are required or protected under the Sarbanes-Oxley Act and any other law, rule, or regulation subject to the SEC’s jurisdiction.

However, the provision also defines a “whistleblower” as “any individual who provides . . . information relating to a violation of the securities laws to the Commission . . . .” The plaintiff in Berman argued that he was entitled to protection because, although subsections (i) and (ii) protect disclosures to the SEC, subsection (iii) includes disclosures to supervisors. Judge Woods remained unpersuaded. In dismissing the plaintiff’s claim, Judge Woods noted that the provision’s language was clear: In order to be a “whistleblower” under the Act, the individual must provide the information “to the Commission,” i.e., the SEC.

District courts that have allowed Dodd-Frank whistleblower protection for individuals who report violations to their employers have essentially followed the plaintiff’s reasoning. Despite the plain language definition of a “whistleblower” under the statue, they have held that subsection (iii) is a narrow exception to the definition and encompasses protection for individuals who report to supervisors.

The Second Circuit is expected to hand down its decision later this year. Although the Fifth Circuit is the only circuit to already decide the issue (holding that whistleblowers must report violations to the SEC in order to sue), district courts across the U.S. are in disagreement. Regardless of how the court in one’s jurisdiction rules, however, the law is still subject to change. If courts continue to disagree, it is likely that the Supreme Court will take up the issue in the future. Until the High Court decides the issue, employers must be aware of the fact that they may be subject to liability under Dodd-Frank’s whistleblower provision once their employees report violations internally.

Construction Law Authority

Inside The Nation’s Varying Contractor Licensing Rules — And How They Impact Business

05/26/2017 Becker & Poliakofff

Construction Dive Magazine

This article originally appeared in Construction Dive Magazine, May, 2017, Reprinted with Permission.

Lee Weintraub, Florida Construction Defect AttorneyIn an effort to safeguard their residents against fraud and the chaos that can result from unprofessional behavior or lack of experience and knowledge, most states have some kind licensing procedure in place for professions like lawyers, physicians and real estate agents.

However, when it comes to construction contractors — who practice in an industry that is full of life and death scenarios — there is little state-to-state licensing uniformity.

How do these regulations vary across the U.S., and is there any indication that a strict regulatory scheme results in a higher level of professionalism and quality among contractors?

How licensing rules vary

“We see both extremes where it’s extremely difficult to get a license, and then on the opposite side where anyone with a hammer and pickup truck can be a contractor,” said Chuck Taylor, director of operations for Chicago- area Englewood Construction.

Taylor’s assessment of the licensing landscape isn’t an exaggeration.
Florida and California, for example, license a plethora of trades from pool maintenance technicians to drywall hangers to bridge builders. Along with extensive business and trade knowledge testing, both states have strict financial requirements, which include providing information about the person qualifying the applying company — the one who takes the required exams and assumes financial and professional liability for the its construction operations — other stakeholders and as the business itself.

California also requires a license bond, and Florida mandates that those qualifying a company have a minimum FICO score of 660. Both states also collect applicant fingerprints and run background checks.

Lee Weintraub, chair of the public private partnership practice at Becker & Poliakoff in Florida, said mother nature is partly to blame for the aggressive licensing agendas in these two states.

“My understanding … is that it’s because they are two of the biggest natural disaster zones,” he said. “They get earthquakes, and we get hurricanes.” And with extreme weather events come the predatory contractors who take the money and run, so the rationale behind the first laws was to protect consumers.

From those beginnings, he said, the scope of those licensing regulations grew into what the industry has today — a lot of licensed trades.

On the other end of the spectrum are states like Texas and Illinois, Englewood Construction’s home state. Neither has a state-level contractor licensing system, with the exception of trades that are considered tied to public safety like roofing, fire protection, asbestos and electrical.

In a sector where exceptions are the rule, from state to state, there isn’t one agency that is responsible for that type of licensing, either. It could be a state fire marshal’s office, a public health agency or a financial services office.

But the differences aren’t limited to states. Cities like Chicago and New York also have contractor registration and licensing programs of their own to fill in the gaps that state regulatory agencies leave behind. Even a state with far-reaching state licensing requirements like Florida still has county-level licensing for trades not covered by state law or for those who perform work in only one county.

In the case of, for example, a drywall contractor who only performs work in Pinellas County, FL, they can take an exam and get licensed locally, but, because there is an equivalent state-level license, they must still register with the state and meet the same financial requirements as a state contractor.

The impact of stricter requirements

The leaves the question: How do these rules impact contractors?

Taylor and Weintraub both said the extensive financial and application requirements of licensing systems, like there are in Florida and California, help weed out those financially unprepared to run a construction business.

Regarding the argument that such strict contractor regulations saddle contractors with too much paperwork and associated expense, Weintraub said, “There’s no merit to the argument that it makes it worse for contractors. There are some restrictions that aren’t onerous like putting a license number on a truck … but there’s no burden I see at all on your ability to run your company.”

There are some local requirements, however, that Weintraub said could be considered more fundraising-minded.

For example, Florida licensed contractors are authorized to perform work freely throughout the state, but counties and municipalities still take a bite of the apple by levying registration fees or other charges, even if the contractor’s base of operations is in another part of the state.

Englewood does work all over the country, and strict licensing requirements, he said, sometime seem like a purposeful barrier to entry.

For example, in Arkansas, one of the pieces of paperwork required with
a general contractor’s license application is an audited or reviewed financial statement, which can be a pricey proposition for a company the size of Englewood, as many accounting firms calculate their fees for this service based on company revenue. This is something that could derail a company’s plans to enter the market, Englewood said, but it’s difficult to ascribe motive.

New York doesn’t have a major state licensing program either, according to John Patrick Curran, partner at Sive, Paget & Riesel. Contractors, he said, are licensed at the local level, with the exception of those working in the field of asbestos abatement.

In New York City, Curran said, along with some other cities, only contractor registration is required, but that’s primarily for practical safety reasons.

Registration assures the contractor has adequate insurance and complies with Department of Buildings rules.

For example, the DOB requires that projects between 10 and 14 stories have a Site Safety Coordinator on the job and that a Site Safety Manager must be present during construction on projects 15 stories and higher or more than 100,000 square feet. The DOB licenses both categories of safety personnel.

“It’s more of a safety thing than anything else,” Curran said of the contractor registration requirement.

Where quality comes into play

What about an impact on quality?

“Does the fact that you carry a license have any impact on your qualifications? I don’t think so,” said Andru Ramker, president of Hawkeye Construction of South Florida. His company performs work in many states where licensing requirements vary, and he doesn’t believe there’s a difference in skill level.

The primary reason for that, he said, is that the licensee is not usually the one performing the work, at least in commercial applications. Instead, there are layers of employees, subcontractors and independent contractors completing the actual construction. Quality control, he said, often comes down to whether supervisors have the training necessary to recognize if a crew is capable of doing the work.

Ramker added, however, that a positive license history can send a message to customers. “Where it would have an impact is that if a client comes to you and wants to select you, they have the ability to check and see your license is in good standing,” he said.

In Ramker’s case, he has been a licensed general contractor in Florida since 1979, and that demonstrated longevity, he said, can give clients assurance that he’s not going anywhere until the job is done.

“From the standpoint of [many] of us who have a license,” Ramker said, “we have it for all the right reasons and are proud to carry it.”

Becker & Poliakoff Construction Practice Group Receives Top Ranking in 2017 Chambers USA Guide

05/26/2017 Becker & Poliakofff

header_flipper_chambers

Ft. Lauderdale, May 26, 2017 — The 2017 Chambers USA Guide, one of the legal profession’s most preeminent rankings directories, has ranked Becker & Poliakoff’s Construction Law and Litigation Group and its chairman, Steven Lesser, in its top tier of Florida’s construction law practices and attorneys. In addition to the entire group and Mr. Lesser’s Band 1 ranking, shareholders Lee A. Weintraub and Sanjay Kurian received high rankings.

Chambers selects attorneys and practices for inclusion based on thousands of interviews with practicing lawyers and clients worldwide. Attorneys, practice areas and firms are ranked by placement in “bands,” with Band 1 being the highest ranking.

Chambers’ sources praise the Construction Group’s commitment to client service, with one interviewee noting: “I would describe them as being highly reliable and delivering terrific client service.” Another interviewee said: “My impression of the team is excellent — nothing dropped through the tracks! Monthly billing was clear and easy to follow, and overall the value of the team was very good.”

“We are honored to receive this prestigious recognition,” said Steven Lesser. “It is very rewarding to be recognized by our clients and colleagues for the success of our work.”

Ft. Lauderdale-headquartered Becker & Poliakoff is multi-practice commercial law firm with more than 150 attorneys, lobbyists and other professionals.

For further information, please contact Andi Phillips, Media Director, andi@roarmedia.com, (305) 403-2080, Ext. 128.

Florida Condo & HOA Law Blog

Isn’t Medicaid Only for the Really Poor?

05/24/2017 Heidi F. Friedman
Question: I can’t qualify for Medicaid assistance because I have too much money. I own my house, doesn’t that disqualify me from Medicaid? Won’t Medicaid take my house after I die? Answer: The Long-Term Care Medicaid program provides assistance to those who either reside at home, in assisted living...

This is a summary only. Visit http://www.floridacondohoalawblog.com or click the post title for the full entry.

Golf Balls and Windows in Florida HOAs

05/22/2017 David G. Muller
Question:  My home is located near the tee box of the first hole of a local golf course.  Periodically (but very infrequently) an errant golf ball strikes my house.  Two weeks ago a particularly bad golfer sent a golf ball right through my window, causing considerable damage.  I ran out to get...

This is a summary only. Visit http://www.floridacondohoalawblog.com or click the post title for the full entry.