 This is Stink Tech, Hawaii. Community matters here. Welcome to Condo Insider. This week, we're going to continue our discussion from last week on fair housing and discrimination and risk for associations with respect to being sued and or not treating their residents properly. I do want to take a moment and tell you about a couple of shows we're going to have in the next couple of weeks. We're going to have an exciting show about EV charging stations and condos. And we all know that that's a problem, because you have guest parking and privately owned parking stalls. And there's certainly a lot of state initiatives to try to force multi-housing units to somehow allow people to have charging stations. So we're going to have a vibrant discussion about what those challenges are and what the future holds for all of us. We also are going to do some discussions about how to deal with hoarders in your association. I kind of call that advanced collecting. It's kind of like you've learned how to collect a little. Now you're going to collect a lot. And so you become a hoarder. And sometimes one of my wife's become a hoarder, because she likes to save everything. But I guess technically or clinically, she's not a hoarder. But anyway, we have that show coming up. And then we're going to talk some more about fire protection and sprinkler systems and what the road in the future holds for where our city council may go, what legislation may happen in the future. So we have some really exciting shows. And we always want to welcome you to join our conversation or hotline at 808-374-2014. Always interested to have you tell us your perspective. And you're also welcome to contact us about suggested shows in the future. That being said, I have invited my number one guest back. You hold the record of being the guest on my show. I'm the only one who answered the phone, I think. Maybe. It could be. It's Scott Shirley, who's director of training and associate. And he's been involved in this industry forever. And I'm not going to make you go through the whole thing. But take a minute again and tell him how long you've been in here and what you've done and kind of your background so our new viewers might understand that you can pretend to know what you're talking about. Well, that's a good point. And of course, 35 years in the industry, the last 20, 25 years, mostly in the teaching arena, teaching realtors, the core courses, which you and I have actually used as a basis for a couple of these shows. And specializing in issues like fair housing, condominium governance, Americans with Disabilities Act, those are the areas that I've spent a lot of time with over the years. So we kind of wrapped up last week, I should say, talking about issues on fair housing and risk. There's all these potential, what I'm going to call, litigation or disputes that could come up. And there's terms that are used. And the one I would like to focus on for a moment is called hostile living environment. Now, for the longest time, I wondered in my house what I was living in a hostile living environment. Does your wife know my new wife? No, I don't. I have a phenomenal wife who are very happy. But I thought it was a good joke to lead into this. What the heck is a hostile living environment? Well, a hostile living environment. Now, of course, people are probably more common with the phrase hostile working environment. But it's sort of the same concept in a condo association or even a homeowners association, your typical subdivision, where it could be an employee of the association, landscaper, resident manager, whatever the case may be, who takes it upon themselves to pick on a particular person or person's at a condo association based on their sexual orientation or their ancestry or anything like that. And when a situation like that happens and it's brought to the board a director's attention, if the board then chooses not to do anything about it, I've seen cases where they said, well, that's a personal issue. We don't get involved in that. The board gets dragged into it anyways because they have now been advised that there's a situation going on. And they need to take appropriate actions, especially if it happens to be an employee of the association that's creating that problem. So what should they do? Someone comes to them, an owner says, or writes them a letter and says, I feel this employee, the gardener, landscaper is harassing me because of my race or religion or whatever it may be. What should the board do? Well, the board needs to investigate, of course, because there's always two sides to every story. And then if they determine that this is actually going on, they need to take appropriate action, depending on how bad the situation is, it might be termination. But it also is a point of education for the board and other owners there as well. I've seen in many fair housing cases that involved associations or board of directors directly, part of their penalty is not only just a fine, but they're required to take fair housing training so that they don't do this again. And some of the examples that I've seen, at least on the mainland, it's usually trying to trade sex for something. And that could still be considered a hostile living environment, especially since one of the main seven classifications under fair housing is sex. So this, personally, I don't think there's a lot of that going on in Hawaii, but there is the potential of it could happen. Well, if you're the one case, the one condo that has it happen, you're gonna pay either through an assessment or a judgment, and it may not be covered by insurance. But my basic question to you is, is when you start describing that, because board members are lay people, right? The first thing that comes to my mind is take it seriously and contact your lawyer. That's actually some of the best advice you could give. I've said for years, it is better to spend a few hundred dollars now for your attorney's advice than the cost of litigation later. Yeah, because I've seen, we have some really great labor lawyers here, or lawyers who specialize in this discrimination type lawsuit. So to me, instead of thinking, there's nothing to it, it's someone else's problem, we're not gonna do anything about it, or we're gonna do it our way, it's so serious and the risk could be so great. It's probably one of those times you might wanna consider having a lawyer. And I get a lot of emails, I get say four or five a week from HUD, from the ADA, from the Fair Housing Alliance and other organizations. And the disturbing trend I'm seeing is a lot of states now, remember you have the federal law and then the states have their own fair housing laws. And Hawaii is one of those states where you cannot discriminate based on sexual orientation. A lot of the cases I'm seeing that are involving condos on the mainland is just that harassment because of their sexual orientation. What's interesting in this last legislative session, they passed a bill and became a law, basically saying it's illegal for a board of directors or its employees to harass or discriminate or retaliate against an owner. But actually the law prevents an owner from retaliating against a board member as well. But it's kind of an anti-retaliation board if for example an owner filed a complaint. And so there's certainly a tension to this matter. Have you ever seen a board retaliate against an owner? Actually I've seen an owner retaliate against a board or at least a board president where a decision was made at a meeting and the next morning when the board president went to leave for work, every single one of his tires had nails in it. Not one, but multiple nails in each tire. So it's like you pointed out, it's not just the board, it could be harassment coming the other way as well. Well I've never personally seen that. However, people seem to say that when something happens, you're enforcing a house rule, you're retaliating, they'll call it retaliation and they'll automatically say he's doing that because of my religion or my sexual orientation. Whether they're doing it or not is not the issue. They're accused of doing it because of one of these protected class type matters. All complaints should be taken seriously but we also have to realize you got a house rule violation because of the way you parked. It's because of the way you parked. It had nothing to do with your race, religion, et cetera but we're starting to see that kind of bubble to the surface. You're only doing this to me because, no, you violated the house rule. I put a record, I have seen one case of retaliation, not personally in the sense through my management experiences but there was a case broadcast throughout Hawaii on Molokai where a board retaliated against an owner and allegedly the resident manager or the manager of the project was retaliating or discriminating or harassing an owner and that ended up with a significant judgment that was overturned but I believe there was a sizable settlement so I'm gonna go back before we move on to the next issue of discrimination. I'm gonna go back and say to it, boards should take this seriously and they should get a lawyer and they should get it done independently and neutrally because even if the board is right they're gonna be forced into a possible settlement going to classes and just to find a simplistic way to settle in and have the matter end. Well, and just to add to that one thing is that a lot of times part of the settlement or penalty is going and taking fair housing classes. Personally, I don't think that's a bad thing. They should know these things. They could do it voluntarily by attending fair housing seminars but it shouldn't be, I don't think attending a seminar on fair housing should be viewed as punishment. Yeah, and I guess before we move on to the next one I'm just gonna say contact your lawyer. It may cost you a few bucks but even more importantly, if you're a board, make sure nobody creates hostile environment for anybody. I mean, everybody's entitled to quiet and join their home and should be treated fairly realizing that it's possible that someone will try to take advantage of the system but the last thing you want is to have to spend a whole lot of money and something should have been a problem in the first place. A whole lot of money and a whole lot of time. The other thing I see KJ boards tell me, well, we're just gonna pass the house rule or we're gonna amend our bylaws and we're gonna create all these rules because we want our association to be this way. So we're gonna limit having children, number of children you can have in your unit. They have this view that within this power governments they have they can create whatever with the owner's approval in some case, declaration, bylaw change or in the board's case, mostly the house rules and say this is how we're gonna govern and how our place is gonna be. What's your comment? Well, and that's a mistake a lot of boards make and of course they operate under the philosophy of self-governance. So they think they can make these rules and what's happened over the years and it's not just condos, even HOAs have had to deal with this is if there's anything in your house rules, your bylaws, your declarations, your CCNRs that violate fair housing law, it becomes voidable. Not the entire document, just that section that has it in there. I've discovered recently in a couple of classes that I was doing on the neighbor islands, I have one student out of Northern California just outside of San Francisco, they decided to sell off a large chunk of property that has been in the family for generations and so they pulled a title report on it and looked at the original deed and the original deed said cannot be sold to a person of color. Of course this is outside of San Francisco so the target at that time was of course the Chinese who were building the railroad and so forth. That doesn't mean that you can't sell the property or anything, it just means that deed restriction cannot be enforced and you'd be surprised to know that there is actually a property here in Hawaii where original deed restriction said can only be sold to a Caucasian. Well, I didn't know that. But I understand the concept that you can't have deed restrictions or private governance in private documents interfere with federal and state law which is we have these protected, rightfully so, we have these protected classes. You know, it's sad to see all the events that are going on in mainland that really show we really haven't made as much progress as I thought. One of the things that bothered me quite a bit was receiving a phone call from a realtor one day asking me if they could tell the seller that the buyer was a gay couple. And I said, why does that matter? Is there money different color? Well, his concern was he said, well, this particular complex is very conservative and I don't think they'd like these people moving in. Don't go there. Don't go there. Everybody has the right to buy and live where they want to live. Yeah, that is sad. I would say one thing, it's not really directly related to what you said but it's kind of a parallel example. I've been in many arbitrations where boards have amended the governing documents and said, for example, the pipes in the concrete to support your unit are your responsibility. Of course, you have no ability to maintain them because of the fact of buried in the concrete. And I've seen arbitrator after arbitrator declare, moot and void all those provisions because you just don't have the right to do whatever you feel like it. Exactly. It's got to kind of pass a few tests along the way like federal and state law and all these different tests ago but it's not related to discrimination in a way but it's related to the fact that any governing document including those that discriminate are voidable. Voidable, exactly. And you don't want to be on the losing end of a voidable contract. Well, and you know, the sad thing is, is my late father grew up in a generation on the mainland where they still had what they referred to as sunset laws where if you were of a certain race, you had to be in your house by the time the sun went down. You couldn't be out on the street. So a lot has changed but also realized the laws were passed in 1968. So that really wasn't that far back in our history. No, it isn't, it's true. But we're gonna take a short break and come back and talk about one of the most interesting and complex subjects, marijuana in condos and a whole bunch of related topics. So we're gonna be right back in one minute. You're watching Condo Insider. This is Think Tech Hawaii, raising public awareness. The big gay, watching at home just doesn't feel the same. What on the list is who's gonna drive? It's nice to know you're gonna get home alive. Plan for fun and responsibility. Choose the DT. Captain of our team, it's the DT. For every game day, a sign had designated driver. This guy looks familiar. He calls himself the Ultra Fan but that doesn't explain all this. What? He planned this party, planned the snacks, he even planned to coordinate colored shirts but he didn't plan to have a good time. Now you wouldn't do this in your own house so don't do it in your team's house. Know your limits and plan ahead so that everyone can have a good time. Welcome back to Condo Insider. I'm sitting here with Scott Shirley talking about discrimination and the potential risks it has for associations. In the first half of the show, we've talked about the issues of voidable documents and trying to pass rules that aren't enforceable and then hostile living environment which I guess there's multiple definitions for that depending on what day you feel and what you did to honey do this for your wife or not. I guess that's part of it. But in serious terms, it's much more important to realize that the board has an obligation to protect the people who live there and provide quiet enjoyment and if you have employees or board members misusing their authority, you can't ignore it. Yeah, exactly. But the other one, probably the big topic is marijuana and when I say marijuana, people who have medical marijuana are a protected class in a way and what should take on marijuana? Well, it's an interesting aspect and probably one of the questions that I get asked most in regards to condominium living and that is the use of medical marijuana and I would however like to point out real quickly that our legislature has said medical marijuana is not the proper phrase. It is not a technical legal term and based on things that happen in the 2030s in regards to marijuana and the mainland they're saying it also has some racist connotation to it. So our legislature has now deemed at the end of this session that all documents that reference medical marijuana now must state medical cannabis. So everything now is, we're not really supposed to say medical marijuana but my feeling is we live in Hawaii and so it should be medical Paco Lolo. We're embracing the phrase in the state. Sure, it's culturally correct. There you go. It's culturally sensitive. And there's some people out there who may remember Don Ho's song from the 70s. Who's the Lolo that stole my Paco Lolo? That's right. There's some basis for that but the federal state laws are different, right? On medical marijuana. Exactly. Number one is on a federal level medical recreational doesn't matter what it is is still not legal on the federal side. Individual states, there's a number of states that now have made it legal for medical purposes and some have made it recreational as well. And those states, you are within the guidelines of your state but you're not within the guidelines of the federal law. And so it's a fine line there and at any time the feds could actually come in and say, okay, can't have medical marijuana anymore. But right now under our state rules you can use medical marijuana. But wouldn't it be fair to say, I understand the issue of the federal versus the state. The state law allows people who have a medical marijuana certificate or whatever it may be called to use marijuana. So a board or an association couldn't deny that based on the federal statute. They would be in violation of the state law. So the feds have to come in and enforce it. The board shouldn't try to enforce the federal law by saying you can't use it when the state law clearly says you can't. And I've seen over the last few five or six years in regards to the legislature, I've been keeping track of this issue for property managers and things like that. And our statute was clarified just a couple of years ago that if your association has a no smoking policy and you use your medical marijuana by means of smoking, they can actually enforce the no smoking part. They can't tell you you can't use it anymore. You just can't smoke it on the property, which means that they would have to take it in other forms, liquid form, edibles or something to that effect. But they can enforce the no smoking part if they have no smoking rules in effect. I have to, I know you're gonna, don't be shocked at this. I come from a very pure environment. I went to a military college in my younger days, you know, and back in the era that this was popular, I was in kind of this monastery of military life that I didn't understand. Is it just as effective to eat it or to take it in a liquid form or? Well, I'll give you an example of what they had to do in Colorado, which their most popular form is, of course, in edibles. But, you know, George and Martha who may not have had marijuana since Woodstock, have now said, hey, it's legal. We can have it recreationally. Let's go get a cookie. And then they eat a cookie and realize about 20 minutes later, I don't feel anything yet. Let's eat another cookie. Without realizing that the effects of ingesting it that way take 30 to 45 minutes. And so they just keep adding on and adding on. So the legislature in Colorado actually now requires how many servings and the time effect that it has on there. So they were overdosing on cookies? Well, nobody ever overdoses. They just fall asleep. But I will point out that this is something that not just Hawaii is dealing with, there are other states that have medical marijuana. And for somebody who doesn't smoke cigarettes or doesn't do anything like that, to have that odor creep in to their unit does bother some people. So that's one of the reasons that it's not just, they're probably not gonna get an effect of it, but they don't like the smell of it. And it can be pretty strong. But we're watching cases in the mainland and see how this is going to trickle down and affect Hawaii. And there was a recent case in the Massachusetts Supreme Court in regards to an employee that was fired because they tested positive for marijuana on the job. The person was taking, and that was a medical marijuana state. They were taking medical marijuana because of their disability. Remember, the marijuana is not protected, but your disability is. So the Massachusetts Supreme Court said that that person could file a case against their employer because of their disability. So they're basically saying he was fired from his job because of his disability. It just so happened to use medical marijuana to help him with his disability. This world is getting so complex, isn't it? Well, if we're seeing that in the employment side, how long before we start seeing something to that effect on the homeowner's association or the condo association? But in simple terms for our audience, if you have no smoking rules in your association, there are legal no smoking rules. Typically it has to be in the by-laws. You can't have it in the house rule. Then you can enforce on a marijuana smoker. You can't smoke, but you can't prohibit them from using any other forms to take it. If you do not have no smoking, then you have to allow them to smoke. However, you might, as you would with cigarettes and or marijuana and or incense, if a person creates a noxious odor or a hazard because they do it so often so much, you may have some rights to engage conversation with them to try to limit that because of the effect on others. Well, and I think you really said it a couple times earlier, you have a right to quiet enjoyment of your place. So if I'm trying to enjoy where I live and it's not enjoyable because of the person next door constantly smoking medical marijuana, you're encroaching on my right to quietly enjoy my place. I know one of our future speakers, because you're my host also, I mean, you host this show and we kind of take turns, but you're gonna bring on an expert on smoking and whether you can smoke on the eyes and all those documents. So a future show, we're gonna get more into the smoking debate with respect to what you can do, can't do, what you can amend and can't amend with respect to that issue. So in essence, again, when you have this problem, you should probably go to your lawyer. Exactly, because it's getting more and more confusing what you're allowed and not allowed to do, state law, federal law. And of course, you know my philosophy is, is Hawaii should make it legal for recreational use because Colorado has already collected a billion dollars in taxes. And if we do that in Hawaii, we can pay for a quarter mile of rail. I read today in the newspaper, one successful lottery ticket can get you a billion dollars. This is true. That being said, that's because we only had like three minutes left in the show, maybe not even quite that, I think. Let's talk about disparate treatment. Well, what is that? This new issue, actually it's not a new issue. It's been on the books since the days of the fair housing laws and it's called disparate impact. And what that really is, is you create a rule that on its surface looks fine. But the enforcement of the rule has a different effect on certain nationalities. One of the examples we've used, or I've used many times in my classes, is for say a rental manager who has an apartment building for rent and advertises, only full-time employed people need to apply. Well, on the surface it doesn't look like there's anything wrong with that. But you can actually be deemed to be discriminatory to disabled people who are not working full-time but can't afford to rent the property. So you gotta be very careful when you create these rules that you're not having enough effect. It's actually, it's not exactly on point to what you're talking about. The Supreme Court case in Hawaii where an individual sued because the advertisement of paper said experienced sales people need to apply. And the Supreme Court ruled that that's discriminatory because she was a senior citizen by the way. So it's kind of on point because of the fact that even though she was experienced, she was a great salesperson. And so the word experienced took away and was discriminatory against her as a senior citizen. And she actually won that case in the state of Hawaii. Well, one of my favorite examples of disparate impact and a lot of us remember this in the 70s when it happened is there used to be this term at the banks called redlining. And what the bank would say is we're not gonna lend in that neighborhood over there because it's a bad neighborhood. It's too high risk. And the federal government came along and said you can't do that because that neighborhood may have been predominantly Hispanic. And so you've just negated a whole group of people based on a rule that you've created that you thought was a good rule. Well, you know, we're at the end of our show. And you did an absolutely phenomenal, great job. Such a good job. I'm gonna let you be the host next week. Oh, wonderful, you know. So you can get yourself ready and prepare because this actually does take some time to prepare these educational videos about living in a condo. And we try to make it light and lively and fun when we do it. But we wanna thank all of you for watching Condo Insider. Hope you'll tune in next Thursday from three to 3.30. And we're gonna begin a whole new series of shows. Aloha.