 Welcome to another episode of Condo Insider. My name is Jane Sugimura and I'm your host for this episode. And Condo Insider is a show for condominium, about condominium living and for people who work and live in condos. And we have, and you know, the last couple of shows have been about the pandemic. And so we're going to continue with that theme. My guest today is Maxwell Copper, and he's a partner at Porter McGuire-Chiacona, LLP. Welcome to the show, Max. Hi, Jane. Thanks for having me. OK, well, thank you for joining us. And, you know, why don't you tell, I mean, tell us about yourself and the firm and what kind of law do you practice? Thanks, Jane. Porter McGuire-Chiacona is a full service condo law firm. We, the vast majority of our practice is serving as general counsel for condominium associations and homeowners associations across the state. And so we deal with all the wonderful stuff that comes within all the stuff that you deal with and the boards deal with regularly from covenant violations, you know, violations of house rules or declarations to collections of delinquent association fees to larger lawsuits. If a condo contracts with a company to resurface its parking garage and that project goes wrong, we can assist the association in dealing with the contractor and if necessary, although hopefully not, if necessary, lawsuits. And so we do hand a good portion of our practice is handling plaintiff side lawsuits for associations when dealing with the various issues that come up in being an owner of a building as condo associations or condo owners are. And then myself personally, I have been with Porter McGuire-Chiacona for about five years now. I've been practicing law for about 10 years and I focus primarily on condo association litigation as well as condo association general matters like the pandemic topic we're talking about today. And then with this pandemic, you must have gotten quite a bit of business, right? Oh, yeah, it's where we're the lucky ones, right? And we have jobs and people always have condos and always have questions about them. And the pandemic has only spurred more questions. So we certainly are busy. That's right. And, you know, the pandemic, I mean, the pan in March, in March on March 16 of this year, Governor E. Gaye issued his first emergency proclamation. And I guess that's that's what started all this, where all the rules and regulations and you know, started to come out. And and so I mean, so when when when the emergency restrictions came out first, it's the governor and then Mayor Caldwell, it was almost like almost every Thursday Mayor Caldwell would have his press conference at some location and he'd be talking about some new emergency order that he was going to do. So between the governor's proclamations and the Mayor's emergency orders, I mean, things got kind of confusing. They certainly did. And that was certainly a fun task trying to keep up with what the latest proclamation was. Luckily, the governor's proclamations have had been the same for some time now, with the exception of the travel quarantine program, which I'm sure we'll talk about, and the implementation of the tier system on the county level for the mayor's proclamation has also really helped to streamline the process and the understanding so that we don't have these new regulations each time, which allows the associations and frankly, the attorneys to get a better understanding of a rule, whereas in the past, we get an understanding of a rule and then that rule would change. But it's a lot more stable now, relatively speaking. Right. But, you know, in the beginning, I mean, so what kind of I mean, I know in my condominium, I don't know why, but it seemed like the first big issue was when we shut down the pool and then you and all hell broke loose. It's like, you know, you know, we got all these complaints about you can't do that. We're private property. What do you think you are? And so we had to then call our condo our condo attorney to get directions. So I guess you guys are in the same position, right, giving out advice about amenities for condos. Absolutely. And the pool one had us all shaking or scratching our heads because if I remember correctly, first, it was all pools closed and then and then condos could open and then they couldn't and then they could again. And so that that's a really good example of the back and forth. What we have now is where pools can be open, but then the governor and mayor has sort of left it up to the associations, to the private, essentially private pool owners, right, to set guidelines and restrictions on how to proceed with that. And so that's a whole nother can of worms with dealing with the pool in terms of guiding associations through what restrictions, if any, to place, how to police those restrictions and how to enforce those restrictions. Yeah, I mean, and that that was a big problem is because, you know, it was like, well, you know, we open the pool. How do we make sure that people will wear masks and they social distance? And in fact, when we when we open the pool the first time after we closed it and then then I guess the rules allowed us to open, we did open it, but we instructed our maintenance staff to take all of the chairs and put them, you know, basically to lock them up. And again, we had this uproar about how come you took chairs away and we said, well, number one, we don't have the staff to wipe them down. You know, to disinfect them and so if you want to take a chair, you take your own folding chair from your unit down to the pool. And and that caused a whole different set of objections. Yeah, I really like that example. What we tell when condo associations approach us with let's just take the pools or any amenity, for example, say, hey, you know, I know we're technically allowed to have it open now, but we're a little nervous about that. What do we do? Our response is you have two reasons to set restrictions, right? The first is to protect your residents, to protect your owners and your guests and your residents from contracting COVID and to provide a safe environment. And the other is, of course, as lawyers, we always have to think about liability. Is the association opening up itself to liability? And that second question is hard to answer, as you know, Jane, because you can't prevent people from from suing associations. It will happen. Fortunately for us, that's why we have jobs. But unfortunately for condo associations, that is a great expense and something to worry about. But if you do the first job well enough, that is if you put restrictions on the amenities and you manage the amenities in a way to protect the association members and guests in a health from a health standpoint, that minimizes the second concern, the lawsuit concern, as much as possible. And so that's what we advise boards to do, is to keep that in mind when coming up with restrictions. I really like what your association did was, you know, you're in an association that doesn't have a lot of resources in terms of employees and staff, so you don't have somebody who can monitor it. So you set up a restriction, a reasonable restriction, such as removing the chairs that helps with the social distancing, helps with the gathering when you don't have somebody there actively to enforce it. In the larger associations, you do have the staff. And while that has put a large burden on the staff, we have found the staff to be really excellent in this time because it's their community, too, and they're just trying to be the conduit to allow the community to use these amenities and to get out and do that. So while it does mean a lot of extra work for them, having staff is obviously a benefit to enforce these restrictions. OK, but, you know, there are other amenities, too. You've got gyms, some condominiums have gyms. And rec centers. And so, I mean, you mean, how do you treat? I mean, how do you treat? Advise the associations to deal with those amenities? I'll start with the rec centers or the common room. First, for the most part, especially recently, they have been closed down because of the number of people allowed for gatherings. There are exceptions for that, obviously, for the gatherings, one of which now is meetings to a certain extent. But for the most part, the restrictions on gatherings has been the most stringent, especially in the last month or so. So it's just easier for buildings to keep it shut down until the need arises. Gyms are another story because that's like the pools has been going back and forth in terms of gyms opening and gyms closing. Now gyms can open, but you need the social distancing requirement. We advise them, person to the order to keep the gyms to one third capacity. And we and this goes back to the staffing, the frequent cleaning of the areas. And that's the hardest part for associations and why we often advise for those amenities that you can close down to close them down, such as the common room or the gathering room. If it's not something that a lot of people are using and that you really need to open, that just becomes another burden on the association staff to clean and disinfect. For the gyms and the pools, obviously it's a popular amenity and something that the community has paid for. So the associations are under a lot more pressure to keep those open, but we advise to have a written plan of how to disinfect, how to socially distance and how to keep the numbers down so that if any questions arise from a liability standpoint, the association can point to their policy. Hey, we clean every so many hours. We wipe down. This is what the disinfecting that we use. One third capacity and social distancing and mask wearing. You know, that that is the best that the association can do in these times and having a written policy of proof will protect the association if any questions arise in the future. OK, well, you know, why don't we take a break right now? And then when we come back, because the next topic we're going to be talking about is employees, issues with employees and the health and safety rules. And so and so we've got a lot of ground to cover. So let's take a one minute break now. And then when we come back, that's what we'll do. Right. OK, welcome back to the second part of our condo and cider. And we're talking about living in a condo during a pandemic and how to deal with certain issues like amenities and health and safety rules. And my guest today is Maxwell Copper. And he's with Porter McGuire, Kia Kona, a law firm in Honolulu. Welcome back, Maxwell. Hi, Jane. OK. Why don't we go into there were some issues that we were talking about earlier. There are there are employee HIPAA concerns that, you know, arise out of this, you know, pandemic. And these are things that the Association has to deal with. Certainly. The Association, oftentimes, is a major employer. And what happens when any employer gets an employee who tests positive? What can you do? Well, there's a lot of resources online. The CDC and the ADA has this information. But the general steps are, one, to contact that employee and to ask consent, whether or ask whether or not you have consent to disclose this information, because that will send you down on two different paths. Let's assume you're not given consent that the person says approaches you and says, as an employee, I have COVID, I'm obligated to tell you, I'd ask that you keep this confidential. Then the employer is then tasked with talking to the employee, the positive employee and determining the contacts and then advising both other employees, as well as the Association, if they came into direct contact. But all that the Association can say is there has been a positive test amongst one of our employees. All of the direct contacts have been notified. If you have not been contacted, essentially, don't worry about it. You are not one person in the group that that was directly contacted by this individual. Obviously, on the other path, if the employee gives consent to share their name and limited information, first, we advise getting that consent and writing. And then you can say, hey, our front desk person has a positive test with COVID. We went through the same protocol of contacting everybody. If you believe you were in contact with that person, please let us know. And and then, you know, obviously, the testing that needs to happen with everybody who had close contact with that individual per the CDC guidelines. And, you know, and, you know, this is something that happens in any condominium. You have a you have I mean, it's just a gossip mill. And it's not unusual for for somebody to say and I've got an email saying, hey, we heard that so-and-so who is the maintenance person has COVID. Well, so, so, you know, and you've had you. So if they're coming to me, they must be going up to the site manager or the resident manager saying, I hear that, you know, Joe Blow, our maintenance person's got COVID. And what are you supposed and what are you supposed to say to them? If they come up and ask you like, you know, is this true? That's a great question. You know, and that is a potential fire ant hill to step on right there because if you don't have consent or let's assume the person does have COVID and you don't have consent, the response has to be very clear. I'm not allowed to talk about employees, personal history and medical history as notified earlier. And a single employee or however many employees have tested positive and the proper precautions have been taken. The person has given consent. Then, you know, certainly that information can be shared. But with without, you know, in a manner that doesn't stoke the rumor mill, if that's possible, because that's what associations and communities in general, you know, we're social people, so we talk. But to your point, I think avoiding perpetuating that and and if it's false, if that hasn't happened, the response certainly can be we don't have that information. That's, you know, the employee has would be required to notify us and we don't we were not notified of that. So that information is false. OK, and, you know, one other thing that, you know, since we're on the health and safety, there are lots of things that I guess that people have asked you about, like, can we set up rules where people have to wear masks in the common areas? And what about elevators? I mean, how many people can be on an elevator? I mean, so, so, you know, because of the pandemic, a lot of the associations have had to kind of make rules about mass squaring, social distancing and the elevator. So, I mean, do they have? Is there a basis for them to do this in their governing documents? Or do they have to do a bylaw amendment or something? Or what can they do? And what kind of rules, you know, have have had to be implemented because of the pandemic? Excellent question. And probably the one we get most is when you you have a concern board that says, hey, we've seen the mayor's orders. We want this enforced here as well. You know, we want everybody wearing mask right now. There's there's a mandate by the mayor and the governor that mass be worn. People aren't doing it here. What can we do? Fortunately, for most associations, they're in their governing documents, either their bylaws, declarations or even house rules. There is more often than not a provision which says that the. Residents, guests and that the residents and guests have to apply with state and county laws. Sometimes it's specific and says state and county laws with respect to health and safety, and we have used that provision to allow boards to enforce the mandates of the governor and the mayor without even passing a house rule. Sometimes boards have been more comfortable with passing a house rule saying that the governor and mayor's proclamations will be enforced under the house rule fee structure for so long as they are in place. That is not necessary most of the times, depending on the language of your individual governing documents. So just to make it a little clearer, basically, house rules have language that allow you to enforce these laws under the fee structure that already exists. So that means that they don't have to do anything special like doing a bylaw amendment, and they can just adopt the mayor and the governor's restrictions and basically, you know, post signs or, you know, posted on their website that, you know, that, you know, that the governor and the mayor's emergency orders are going to be fully implemented in the building. Absolutely. We've we've done it two ways. The first way is to adopt it by a house rule amendment, which can be done in the board, right? No, most of the time you don't need a declaration or bylaw amendment, so it can be done at a meeting at an emergency meeting even adopted in the house rule. And then then then that house rule posted and sent out notified that, hey, the mayor's proclamation and the governor's proclamations are now part of the restrictions. The other way, which requires even less work, is just adopted through a vote. And then the proclamation itself is posted with a notification saying this will be enforced pursuant to whatever the relevant provision of the house rules or governing documents that allows enforcement of county and state law. So all you need to do, basically, is to have proper notice that you're enforcing it and posting it without having to reinvent the wheel and pass a bylaw or amendment or a declaration amendment. Right. And, you know, one of the big issues because of this pandemic is that associations who didn't have their annual meeting prior to March 16 were precluded from having their annual and, you know, some people have found ways to get around it. But is there any language in most governing documents or in the statute that would allow an association to have their annual meeting remotely? Like by Zoom or, you know, one of the teleconferencing programs. The short answer is I've never seen it and probably not even these new kakaako buildings with new declarations and bylaws. Even when they were written two, three years ago, nobody had heard of Zoom and now we all use it every day. So certainly the I think what you're alluding to, Jane, is the Hawaii Revised Statutes for Condos allows meetings in person or in a manner prescribed by the bylaws or declaration. And all so it needs to either be in person or be allowed for in an additional manner in the declaration or bylaws. And no association that I've heard of has provisions which would allow for a meeting by Zoom or other, you know, even telephone for an annual meeting. You know, the speaker, House Speaker Scott Psyche contacted me mainly because Richard Emery, you know, for CAI LAC and me for Hawaii Council, we're at the legislature every session, you know, lobbying for condo laws. And anyway, the speaker contacted me. And you know, one of the things I told him, it says, you know, speaker, we need to amend the condo statute 514 to allow for annual meetings to be held remotely because because of the pandemic, we haven't been able to do it. And so he's going to be introducing a bill and we've got a Senate companion. We got somebody in the Senate to do a companion bill. You know, so so, you know, if we're lucky and we can get, you know, the language in the bill so that they're identical. I mean, we can the bills will cross over in early March. And if they're identical, they can send it right up to the governor. We can have a we can have a law by early March of twenty twenty one. And and you're we're going to be circulating it. And I'm going to make sure that you get it. I mean, so we would love your input on what kind of language we have to put into it. And one of the people who was in on the email where we were talking about this, you know, was concerned that, if, you know, how, when you, when is a when would a condominium association be allowed to do their annual meeting remotely? I mean, because now the pandemic doesn't allow it, we would, you know, a lot of condominiums would use it. But after the pandemic is over, the concern is some boards may be lazy and they'll just do it remotely every year, which is not probably a good thing because you want to be have a an event where all of the owners can at least once a year show up. If they want to. Yeah, this is great news. I think have, I mean, obviously, the law needs to be passed and it is great, the efforts of you and Richard. Just trying to push this through quickly. And if we could have something by spring of next year, that would be amazing for us and for condo associations, because, like you said, there are some workarounds, but it really that's all it is. You're really just putting a bandaid on it here. And, you know, covid is not going away anytime soon. Certainly, the travel restrictions are not going away completely anytime soon. So there needs to be a solution. But I think you raise a great concern of not throwing the baby out with the bath water. Yes, a solution is needed for issues. You know, for this issue in particular, when there's a pandemic or or other such issues where an annual meeting would be rendered impracticable and in person annual meeting. But annual meetings have been in person for many years for a reason because they're great for the community and for decision making and for involvement. And so but I think that's a relatively simple solution that I would just include some language where where it would say you know, annual meeting shall be held in person except when rendered impracticable by a situation outside of the control of the association or the board. I know that sounds like Vega, a lawyer speak. But what it does is it still puts the pressure on the association to have these annual meetings in person. But it gives a little out that when there is one of these rare situations that it's something that that me looking at it, I wouldn't advise an association to use that out unless absolutely necessary, right? It would make me nervous. That's a wonderful comment. And like I said, when we finally get a draft from the speaker, we're going to be circulating it to the the attorneys who do condololes. So I'm sure you're going to be one of them. And so we would really appreciate that input and we've run out of time. But thank you so much, Maxwell, for being with us on this show. And I want to thank the viewers for joining us for another episode of Kondo Insider. And please join us next week. Richard Emery will be the host for another episode of Kondo Insider. Thank you, Mahalo. Thank you, Jane.