Becker & Poliakoff

“Restaurant Minimums Not Unusual” – News-Press

“Restaurant Minimums Not Unusual” – News-Press

Becker & PoliakoffQ: I live in a community that includes a mandatory golf club membership. The restaurant/lounge has been underperforming. The board recently imposed a minimum food and beverage purchase requirement for all members. Is this legal? (R.C., via e-mail)

A: I am told that there is an old saw in the golf club industry that it is not whether club restaurants lose money, but how much. Still, these facilities are universally considered an integral part of a golf club experience, whether in the community association context or not.

Whether a food and beverage minimum is permissible depends on the language of your association’s governing documents. Generally, the association’s restaurant losses or shortfalls would be borne by the association, either as a part of its budget or a special assessment.

There is no reported case law on the subject in Florida. In my view, if the governing documents authorize the minimum, it is probably valid. The structuring of the minimum may be somewhat different between condominium and homeowners’ associations.

Many of the minimum provisions that I see are in the nature of a set assessment against each member for the operation of the facility. Then, the association is authorized to issue a credit against that assessment in the form of “free” food and drink. However, that may not be the only way of implementing the charge.

Q: I sent an e-mail notification to the condominium management company assigned to our association regarding my intention to volunteer for our board of directors, along with my resume.  I have not received a response. I did file before the stated deadline.  Is this considered an acceptable means of notification?  (D.B., via e-mail)

A: Section 718.112(2)(d)2 of the Florida Condominium Act requires a unit owner who wants to be a candidate for a board seat to give the association written notice of his or her intent to be a candidate. Rule 61B-23.0021(5) of the Florida Administrative Code specifies the methods by which a candidate may provide the notice.

Among permissible methods of providing notice, which is effective when received by the association, are certified mail (return receipt requested), personal delivery, regular U.S. mail, fax, telegram, or “other delivery method.” The notice must be received by the association not less than 40 days prior to the election.

The State’s arbitrators who adjudicate condominium election disputes have found the term “other method of delivery” to be broad enough to permit a candidate to provide his notice of intent by e-mail.

Pursuant to Rule 61B-23.0021(7), Florida Administrative Code, any candidate may “furnish” a personal information sheet to the condominium association not less than 35 days prior to the election not to exceed one side of an 8.5-inch x 11-inch sheet of paper. The so-called “candidate information sheet” may contain information describing the candidate’s background, education, and other qualifications that may be relevant. Curiously, e-mail submission of candidate information sheets has been found to be legally insufficient by arbitrators, though it is not clear why this document and the notice should be treated differently in the law.

There is also an open question whether your bylaws or the first notice of election itself can restrict or prescribe “other means of delivery.” In general, I think it best to follow the association’s filing instructions contained on the first notice itself.

The election rules also mandate that the association issue a written receipt acknowledging delivery of the notice. Generally, however the association’s failure to issue a receipt is not enough to disqualify a candidate’s notice. You should call the management company and ask them to confirm that they received your notice and to send you a receipt.