HOAs with police powers: sliding down the slippery slope to HOA-Land

In State of NC v. Weaver[1] an HOA security officer stopped a driver on the suspicion of speeding within the HOA grounds.  Even though there were almost identical circumstances in Poris v. Lake Holiday[2]uniforms, patrol car marked “Metro Public Safety,” and flashing lights – where the Illinois court held that security agents had the right to stop and detain drivers, the state in this appeal argued that the security officer was not a state agent. 

 The HOA authorized the security officers “to issue civil citations and fines to anyone on the property who violated the rules and regulations of the community (fines to be collected by a debt collector).  Note the broad grant of power to the security officers to fine and collect debt from non-members (the question of public streets remains unknown).  Therefore, it should not be surprising that the trial court had held:  “1. The armed security guard . . . [a]cted as an agent for the State[.]; 2. The armed security guard is a State actor.”[3]

 In reply, the State argued that:  “a traffic stop conducted entirely by a nonstate [emphasis added] actor is not subject to reasonable suspicion because the fourth amendment does not apply.”  In other words, while a cop had to have had a good suspicion that a crime was committed in order to stop and detain, it did not pertain to the security agent who was not a state agent, and constitutional protections did not apply as it does not apply to the HOA contract in general.

The question of whether or not the officer was acting under HOA orders was avoided, thus not allowing the question of HOAs as state actors to be entertained.   Questions like: Was the HOA’s authority to have its security agency act with civil police powers – stop and detain – constitutional?  Was the HOA, itself, a state actor?[4]

Where did the HOA get such authority? Certainly not by delegation from the NC legislature as required by law even for the creation of state agencies.  (In Arizona, constitutionality challenges were mounted by CAI attorneys questioning the authority of the Office of Administrative Hearings (OAH) to adjudicate HOA disputes).

But, this constitutionality issue was not the question before the court, but should have been as it pertained to the legality of the initial stop and detain act by the security officer.

The appellate court maintained that there was no evidence that the officer was acting to assist bona fide law enforcement officers or was asked by them for assistance.  However, it ignored its own acknowledged fact that the officer detained the defendant when  he smelled alcohol and “asked defendant to “step out of [the] vehicle and have a seat on the . . . sidewalk[.]”

The appellate court also ignored the trial court finding, which was not challenged by the State, that: “No Longer was he performing under Metro’s contract. After issuing the civil citation his actions exceeded his contractual authority. His goal and purpose evolved into detaining [d]efendant until local law enforcement arrived.” Was this a legitimate citizen’s arrest?

And what if the officer was acting under contract?  Then what?  Not addressed.

The appellate court dismissed the findings that the HOA security officer was a state actor and the case goes back to the trial court to decide its merits.  Namely, as a private citizen did the officer unconstitutionally stop and detain the defendant?  Poris said no. Federal court decisions on Arizona’s SB 1070 immigration laws put a strong damper on even police stopping and detaining citizens. 

So, where do we go from here?    Hopefully to answer the question of the HOA’s authority to act with police powers, a power confined to civil, not private, government.

 

 References


 

[1] State of NC v. Weaver, NO. COA13-578 (NC App. 12-13-2013). This appeal centered on the trial court’s granting of a motion to suppress evidence in the DUI case, because the security officer was a state actor.  It does not consider the very important issue of HOAs as state agents. The defendant was represented in the appeals case by NC’s version of a public defender.

[2] See in general, Corporatism in America: IL Supreme Court grants HOA police powers to arrest and detain.

[3] A ‘state actor’ can be defined simply as ‘an arm of the state’ as if it were a public agency or entity.  As such, the HOA would then be subject to 14th Amendment restrictions that protect your rights.  See Do state HOA Statutes Establish HOAs as State Actors?

HOA settles Trayvon death — over $1,000,000?

Homeowners association is believed to have paid more than $1 million.

“During an interview in February, Zimmerman’s attorney, Mark O’Mara, said Trayvon’s parents had made a wrongful death claim against the homeowners association. They’d tried to settle through mediation, he said, and the association or its insurer had offered $1 million but Trayvon’s parents had rejected that amount.”

 Gee, where were all those fantastic HOA attorneys to educate HOA boards as to their liabilities not only under HOA laws, but corporate, agency, and tort laws?

http://www.orlandosentinel.com/news/local/trayvon-martin/os-trayvon-martin-settlement-20130405,0,6893976.story

References:
HOA liability: respondeat superior and agents as in Trayvon case
Trayvon — Zimmerman reported to be acting for HOA
If Trayvon HOA is sued, who should share the blame?
Published in: on April 5, 2013 at 10:07 am  Leave a Comment  
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legislative support for HOA regimes has created a dysfunctional society

“The times, they are a changin”

When state legislators allow private government HOAs to be unaccountable to state laws as required by all other government entities, then an attitude that anything goes develops. Why? Because there are no penalties to serve as a check and balance on HOA activities.  It creates a lawless attitude of, “Go for it, what do you have to lose?”   It creates a dysfunctional society.

 It is commonly known that state legislators have a blind adherence to the false belief that HOAs do no wrong, and that there is no need for HOA penalties to serve as detriments to intentional and willful violations of the laws.   State legislators continue to believe that homeowners are openly and fully informed when accepting a deed binding them to an unsigned contract; and that the HOA and its special interest attorney national organization are acting in good faith.  

State legislators continue to believe that the HOAs and their hired hands, the management firms and attorneys, will comply with both the letter and intent of state laws, rather than seeking loopholes for income producing court cases. Such dogmatic beliefs have created a dysfunctional society operating outside constitutional government under a second set of laws just for HOA subdivisions.

 And we know where this can and has led to:  financial and emotional stress and even deaths attributed to the enforcement of HOA rules uber alles (German for “above all”). The latest shocking incident, after the Trayvon Martin incident (HOA liability: respondeat superior and agents as in Trayvon case), is the incident reported in the Sun-Sentinel article, “Parking at home shouldn’t bring tow — or death.”

Ask yourself why do towing companies roam the streets towing cars in private communities without obeying the laws, or without getting a complaint from the HOA? BECAUSE they can and because the HOA really doesn’t care — its rules are being enforced by someone else. And there are no penalties against HOA boards violating their own governing documents. The HOA is the sovereign, and it can do no wrong!

 However, there is hope. An indication of a return to sanity comes from the Republican Party’s realization that its obsessive adherence to dogmatic principles of laissez-faire corporatism has been a failure. (HOAs are a prime example of corporatism in operation in America).  Republicans are beginning to think in terms of less dogma but a more principled “protecting private property,”  always a fundamental principle of this country.  It stands in opposition to socialist states operating for the benefit of the corporation and not for the rights of the people.

 State legislators should take heed. They have created a dysfunctional society with their unreasonable and irrational support of authoritarian HOA regimes.  It’s well beyond time for an awakening, enlightenment, in their views of authoritarian HOA private regimes.

HOA liability: respondeat superior and agents as in Trayvon case

Orlando attorney W. Jeff Earnshaw, Esq. of Taylor & Carls, P.A. wrote in its Blog about, What the Trayvon Martin Case Can Teach Associations.  Some excerpts from this very informative article.

The case of Trayvon Martin demonstrates how something as seemingly innocuous as labeling a member of an association as the “Captain” of the neighborhood watch can open an association to possible liability.

Understanding how this designation in the association’s newsletter could ultimately lead to liability for the association can help HOA’s and Condominium Association’s limit their own potential liability for actions of others. . . . A well-established legal concept is respondeat superior, which literally means “let the master answer”. Respondeat superior provides the basis for a principal to be held responsible for the wrongful acts of their agent when those acts are performed within the scope of the agent’s duties.

While an employer-employee is the most common principal-agent relationship, with the employer being the principal and the employee their agent, an agency relationship can exist whenever someone acts on behalf of another. . . . The third element; the principal’s control over the actions of the agent, should not be overlooked. The general concept behind respondeat superior liability is that a principal generally controls their agent’s behavior, and therefore the principal should be responsible to the public for the agent’s actions while the agent is under the employer’s control.

See also What is an HOA’s duty of care liability to its members and to all others?

Published in: on September 27, 2012 at 12:27 pm  Comments (2)  
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Insurer denies HOA coverage in Trayvon death

This position by the insurer points out that the HOA board is NOT 100% protected for wrongful acts.  Especially for those that are grossly negligent or intentional acts.

Homeowners should step outside the HOA attorney greated box that implies that the HOA can do no wrong, and remember that laws other than those HOA or Condo Acts  also apply to HOAs:  Restatement of Servitudes, tort law, and corporation law.

From the COURTHOUSE NEWS SERVICE Aug. 6, 2012

 

ORLANDO (CN) – Traveler’s Insurance sued Trayvon Martin’s mother and The Retreat at Twin Lakes Homeowners’ Association, where her son was killed, claiming it has no responsibility to defend the HOA or cover the teenager’s death.

Travelers Casualty and Surety Company of America sued The Retreat at Twin Lakes Homeowners’ Association and Sybrina Fulton, as representative of her son’s estate, in Federal Court.

The Retreat at Twin Lakes’ Neighborhood Watch captain George Zimmerman shot Trayvon Martin to death on Feb. 26. The shooting set off a national furor, as police initially let Martin’s killer, George Zimmerman, go free after questioning him. Martin was black; Zimmerman is not.

Travelers claims that on March 30, it issued the HOA a “claims-made, nonprofit management and organization liability insurance policy.

Fulton then sought monetary damages against the HOA’s policy with Travelers for her son’s death.

Travelers claims it is not liable because of the policy’s “wrongful act” exclusion.

Travelers claims the exclusion states:

“‘The insurer shall not liable to make any payment for loss in connection with any claim made against any of its insureds: 1) based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving bodily injury, sickness, mental anguish, emotional distress, disease or death of a person, provided that this exclusion shall not apply to allegations of mental anguish or emotional distress if an only to the extent that such allegations are made as part of a claim for wrongful employment practices.’

“Travelers is in doubt of its rights under the policy and, by this petition, seeks a declaration of its rights and obligations with respect to the claim and demand made by Fulton upon Travelers and The Retreat at Twin Lakes as a result of the fatal shooting or Martin, and a finding by the court that under the above-referenced policy of insurance Travelers has no duty to indemnify or defend The Retreat at Twin Lakes in connection with the Fulton claim because coverage is precluded by the above exclusion.”

Zimmerman was rereleased on $1 million bond in August his first bond of $150,000 was revoked.

State Judge Kenneth Lester ordered Zimmerman back to jail after finding that Zimmerman and his wife Shellie misled the court about how much money they had.

Shellie Zimmerman was arrested and charged with perjury days later, and released on a $1,000 bond. She was to be arraigned July 31 but her attorney Kelly Sims filed a written not guilty plea.

George Zimmerman has pleaded not guilty to second-degree murder and claimed self-defense under Florida’s so-called “stand your ground law.”

Judge Lester last week refused to recuse himself after Zimmerman’s attorney Mark O’Mara asked him to. O’Mara accused Lest of making “gratuitous, disparaging remarks” when he set Zimmerman’s second bond, according to wire reports. Lester denied the motion as “legally insufficient.”

Insurer Says It Should Not Have to Pay for Trayvon Martin’s Death

Published in: on August 6, 2012 at 9:01 am  Comments (1)  
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