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Subject: Censuring of a board member & suspending by the state
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JohnnaA
(Florida)

Posts:15


01/20/2019 3:03 AM  
I'm a board member & am out numbered on my cutrent bod. They have been avoiding communication & pushing through agenda items that are costing the assoication huge cost increases & are questionable at best. I have called them out publicly & now they are holding a bod meeting to censure me & another bod menber for doing so. We are a 5 person bod & it is 3 vs 2 but they deciding everything around us with little to no communication. Our next election is 5 weeks away. I know censuring is a public slap on the wrist to us but my real concern is the upcoming election as our bylaws state you can't suspended or removed from service from the Division of Condominium.

What is the likely hood they can suspend to not allow us to run for the next bod?

Should we resign prior to the censure to be able to run so there is no record as they can't censure if no longer a bod member.

Of course they are holding this meeting on Tuesday & Monday is a holiday.

I appreciate your assistane.

Johnna Alvarez
[email protected]

TimB4
(Virginia)

Posts:16291


01/20/2019 3:20 AM  
Johnna,

Welcome to the forum. Having been there (my board actually - and without following proper procedures - spent money for a legal opinion to learn that they couldn't remove me) I understand what you are going through. When it's not simply personality conflicts but procedural conflicts, it can be tough to hang in there.

What is the likely hood they can suspend to not allow us to run for the next bod?

Depends on your governing documents and the procedures to be nominated.

Should we resign prior to the censure to be able to run so there is no record as they can't censure if no longer a bod member?

There may still be a censure as many people are childish.
My board actually removed me as treasurer (gave me back 20 hours a month of my life) and published that in our local newsletter. In my opinion, this was a blatant attempt to give the appearance I did something criminal vs. the truth of a simple disagreement in procedures. Those who knew me, asked and were given the full story. Those who didn't know me, heard the full story from others. Doing the right thing will sometimes have others act childishly and throw mud. If you can handle that, stay on and educate the membership. If you can't handle having mud thrown, it may be best to step down. However, that will remove a witness to what is happening.

Only you can make these decisions.

Hope this helps,

Tim
JohnnaA
(Florida)

Posts:15


01/20/2019 3:25 AM  
Thanks, I can handle the pressure but it is a strategic question. Since our elections are 5 weeks away can or do they have time to suspend me theough the atate so I can't run again?

JohnnaA
(Florida)

Posts:15


01/20/2019 3:29 AM  
Sorry for typos new key board
SueW6
(Michigan)

Posts:489


01/20/2019 5:45 AM  
Please explain:
1. Why would censuring remove you from the board.
2. Why the State be involved in any way in this board decision.
3. Was there due process? A hearing in ex. session?
JohnnaA
(Florida)

Posts:15


01/20/2019 5:59 AM  
They called a closed meeting to make a financial decision on a $130k increase to aecurity. The meeting should have been open as not a personnel meeting or legal meeting as they stated. The 3 of them are deciding behind us and then calling a meeting to push through. The meeting got very heated cursing & one of the Bod members walked out. They are censuring for relasing information of a closed meeting, cursing, Not only were we not told the date of the meeting but now they will vote to censor Ken & I. Again an election is coming up & the truth hurts those who can't stand behind what they do:



Censure of Director Johnna Alvarez
Use of excessive Profanity
Hostile behavior in a Board Meeting
Failure to keep confidential the subject and content of a closed meeting of the Board
Intimidation of the Property Manager regarding her job security
Censure of Director Ken Stripling
Use of excessive Profanity
Hostile behavior in a Board Meeting
Failure to keep confidential the subject and content of a closed meeting of the Board

The manager & staff stated she doesn't know where that came from. I have been in employment for 25years & never threatened her. It is made up

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JohnnaA
(Florida)

Posts:15


01/20/2019 6:00 AM  
When I emailed the attorney after the meeting he said theu can amemd & ratify the change to how the meeting was called at the next meeting.
CathyA3
(Ohio)

Posts:243


01/20/2019 6:08 AM  
To the best of my knowledge, based on how we do things in my state:

* Censuring should only be used when there is a significant wrongdoing by the director to be censured, such as
-- a failure to act as a fiduciary or behaving in some way that resulted in the association being sued (this is a little iffy since some homeowners threaten to sue at the drop of a hat)
-- "going rogue" (ie, performing board work on one's own without agreement from the rest of the board, such as hiring or firing contractors)
-- disclosing confidential information which compromised some legal action (ie, disclosing info about an enforcement action that breached attorney-client privilege and caused the association to lose a court case, or disclosing info about delinquencies that violated federal debt collection laws)
-- actual criminal conduct (ie, embezzling association funds)

* No one can prevent another homeowner from seeking election to the board.

* The other board members can't remove someone from the board; they can only remove the person from their office (eg. Treasurer). The only way to remove a sitting board member is to hold a recall election and allow the membership to remove the person.

* The censuring board members have to take care that their actions don't cross the line into defamation. If they knowingly damage a person's reputation, they'd better be very sure that what they say is completely factual and provable. My personal opinion is that censuring a board member simply for a difference of opinion may itself be deserving of censure.
JohnnaA
(Florida)

Posts:15


01/20/2019 6:13 AM  
Thank you. I know it is a public sslap on the wrist & they can't remove me.

My question still remains can they have us suspended by the state prior to election & time frame for that. Because our bylaws state we can't be suspended or removed by the division of condominiums.

Johnna
CathyA3
(Ohio)

Posts:243


01/20/2019 6:27 AM  
Posted By JohnnaA on 01/20/2019 5:59 AM
They called a closed meeting to make a financial decision on a $130k increase to aecurity. The meeting should have been open as not a personnel meeting or legal meeting as they stated. The 3 of them are deciding behind us and then calling a meeting to push through. The meeting got very heated cursing & one of the Bod members walked out. They are censuring for relasing information of a closed meeting, cursing, Not only were we not told the date of the meeting but now they will vote to censor Ken & I. Again an election is coming up & the truth hurts those who can't stand behind what they do:



Censure of Director Johnna Alvarez
Use of excessive Profanity
Hostile behavior in a Board Meeting
Failure to keep confidential the subject and content of a closed meeting of the Board
Intimidation of the Property Manager regarding her job security
Censure of Director Ken Stripling
Use of excessive Profanity
Hostile behavior in a Board Meeting
Failure to keep confidential the subject and content of a closed meeting of the Board

The manager & staff stated she doesn't know where that came from. I have been in employment for 25years & never threatened her. It is made up

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In your shoes I'd be tempted to hire a lawyer. Some of their charges involve judgement calls and would not be provable, and false accusations shouldn't be allowed to go unchallenged. See my previous comment about possible defamation.

Note that if it were a validly closed meeting (which you contend that it was not), then disclosing information would have been wrong. However, I think your board members aren't thinking too clearly. If they do censure you, then the details about the meeting will come out. If they acted improperly by closing the meeting, then it should be obvious who the guilty parties are.
JohnnaA
(Florida)

Posts:15


01/20/2019 6:31 AM  
Thank you.

Monday is Martin Luther King why I posted for input. I plan on calling my attorney but concerned I won't get a hold of prior to the meeting.

We have already reached out to the association attorney as well but I'm not relying on his sole recommendation due to his relationship with the othe bod members.

Johnna
MelissaP1
(Alabama)

Posts:8080


01/20/2019 6:38 AM  
Your NOT censured yet are you? It's time to make more "public" statements in my book. If they work in the shadows, put yourself into the light! Simply put, talk to your fellow members NOT complaining. Talk to them what you and your other person want to do. You can complain all day about your current board. What you need to do is show people what ya can do ON the board!

It is show and tell time... Best in Show Wins... The losers just talk about it...

Former HOA President
JohnnaA
(Florida)

Posts:15


01/20/2019 6:44 AM  
Thank you.

We have been outspoken & residents see it but legally I'm asking how to handle.

Resign prior to censure that way they can't censure cause not a bod member. Since election so close.

Let censure but my concern is how quick they can suspend through state .....thus blocking me from running.

Johnna

CathyA3
(Ohio)

Posts:243


01/20/2019 6:51 AM  
Posted By JohnnaA on 01/20/2019 6:44 AM
Thank you.

We have been outspoken & residents see it but legally I'm asking how to handle.

Resign prior to censure that way they can't censure cause not a bod member. Since election so close.

Let censure but my concern is how quick they can suspend through state .....thus blocking me from running.

Johnna





Hopefully someone from Florida will chime in soon. In Ohio the state doesn't involve itself in HOA business.
AugustinD


Posts:1576


01/20/2019 7:48 AM  
JohnnaA, if the Board censures you, then it is unlikely the Board can keep you from running. Read your HOA's bylaws for the required qualifications of board candidates. Typically the only requirement is that the member be up to date on required assessments or fines. If your Board prohibits you from enjoying all the rights that the other candidates enjoy, then you will have to hire an attorney. Though your HOA attorney is still talking with you, and you might be able to get a ruling from him or her that will persuade the board to follow the rules for running elections.

A censure at the HOA level has no legal implications. It is usually fifth grade behavior designed to intimidate a board member or possibly bring transparency to a bona fide serious offense committed by a board member. What Timb4 describes is common. What happened to him and others similarly situated is disgusting. It also typically costs the HOA a lot of money. Directors supporting censure or similar are wasteful. Such directors also often are incapable of understanding the finances and infrastrucure of a HOA. So to what do they turn their busybodies? Personality conflicts and building their egos.

This board can "censure" you and try to shame you within the confines of the HOA. They will be able to use HOA resources, including the HOA attorney, to do so. Once the attorney gets involved, the lies about you may become very bad, because the HOA attorney will argue that you are about to bring suit, so she or he has to throw out every possible exaggeration about you to try to thwart suit. (So attorneys are allowed to rationalize when they lie. The Bar supports this, in the name of the "adversarial system.")
JohnnaA
(Florida)

Posts:15


01/20/2019 8:00 AM  
Thank you.

Any person who has been suspended or removed from service as a board member by the
Division of Condominiums, or any Unit Owner who is delinquent in the payment of any
monetary obligation due to the Association, is ineligible to be a candidate for Board
membership and may not be listed on the ballot.

This is my concern how soon can it go from censure to them suspending or removing.....

The election is 5 weeks away.

Johnna
AugustinD


Posts:1576


01/20/2019 8:14 AM  
Posted By JohnnaA on 01/20/2019 8:00 AM
Any person who has been suspended or removed from service as a board member by the Division of Condominiums, or any Unit Owner who is delinquent in the payment of any monetary obligation due to the Association, is ineligible to be a candidate for Board membership and may not be listed on the ballot.

This is my concern how soon can it go from censure to them suspending or removing.....


From where did you get the above quotation about the Division of Florida Condominiums? I do not think the Division has the power to either suspend or remove a condominium director. See https://www.flsenate.gov/Laws/Statutes/2018/719.501 . See especially

If the Division does start an investigation, I bet it will be a lot more fair than the treatment you have received thus far from the Board. The Division might end up investigating instead your Board's majority for failure to hold an open board meeting, regarding the cost of security at your HOA.
AugustinD


Posts:1576


01/20/2019 8:22 AM  
I see now where the OP got this. From http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0718/Sections/0718.112.html :

"A person who has been suspended or removed by the division under this chapter, or who is delinquent in the payment of any monetary obligation due to the association, is not eligible to be a candidate for board membership and may not be listed on the ballot."

First, I think the investigation is likely to take longer than five weeks. The Division (and the HOA in theory) must give the accused director(s) thorough due process. This is a big legal deal. Every i must be dotted, and every t crossed. Your side will be heard in detail.

Some of these government agencies are worthless, but to avoid litigation against the agency itself, I expect it will err on the side of not finding any wrongdoing deserving of suspension or removal. If any fines are imposed, I expect it will be imposed on both sides.

Has the HOA reported you to the Division of Florida Condominiums? Make a formal request for any such report to the Division. Log every move the HOA makes.
SueW6
(Michigan)

Posts:489


01/20/2019 9:15 AM  
Contracts can be discussed in closed meetings, especially when bids are opened. Any decision would be ratified at a duly called board meeting where resident members could voice their opinions.

Revealing what happened in closed session is serious and you deserve a censure for doing that.

Be a good boy and take your slap on the wrist.

Carry on ... and run for the board again. (All nominees should be told if they are eligible to run or not before the election - so make “whomever” responsible to finding out and letting you know.”

Watch your language at meetings. Swearing is so low class.
JohnnaA
(Florida)

Posts:15


01/20/2019 9:23 AM  
Thank you. But don't call me low class tou don't know the circumstances we have endured all year.

They were cursing also but only the 2 of us censured. Also they listed the meeting as legal which it was not this the attorney stated to change & ratify at next meeting. 25 years in employment I understand confidentiality & have never had my professionalism questioned. This is the egos & games of a condo bod.

Their behavior all year is less than transparent. I have no problem being censured but you missed the question in your judgement which was the time frame the before elections being 5 weels could they suspend or remove in that time


Johnna
KerryL1
(California)

Posts:6350


01/20/2019 9:48 AM  
Augustine answered the question about "the division." I agree that
EVEN IF your board goes through all the trouble to try to get the "Division" to suspend you from your board, I don't think the Division deals with such matters.

Please don't use real names, Johanna. And perhaps the other director on your side can help you read things. Legalese is hard to read and he might be good at interpreting what he reads.

I don't think it's likely that the board can suspend you two as directors unless your documents, probably your bylaws say so.

JohnnaA
(Florida)

Posts:15


01/20/2019 10:08 AM  
Thank you....I know they can't I stated that multiple times but the state process to suspend was my question. Did everyone wake up snippy because I am here for information not more.


KerryL1
(California)

Posts:6350


01/20/2019 10:32 AM  
I can't speak for all who were kind enough to reply to your question, but in my case, I don't think I understand your question. Is it this, Johanna? Can my board ask the FL Condo Division to suspend or remove me form the board of directors?
JohnnaA
(Florida)

Posts:15


01/20/2019 1:52 PM  
I no censuring is a slap on the wrist but once censured they go to the state for auspension or review. I'm asking time frame for that potentially.
JohnC46
(South Carolina)

Posts:8267


01/20/2019 3:32 PM  
Posted By JohnnaA on 01/20/2019 1:52 PM
I no censuring is a slap on the wrist but once censured they go to the state for auspension or review. I'm asking time frame for that potentially.




Jo

Where does it say a BOD censure goes to the state? A censure is an internal matter and not a state issue nor is it cause for being removed from the BOD.
KerryL1
(California)

Posts:6350


01/20/2019 3:39 PM  
I'm wondering the same thing, John.
GeorgeS21
(Florida)

Posts:1208


01/20/2019 3:42 PM  
Johnna,

I can't speak for the others who have responded, but I didn't respond because I can't follow what you are trying to say, or ask.

Your sentences are fragmented hard to understand.

Can you regroup and outline - specifically - what your issue are, and how we might be able to help?

I've reread your original post a few times:

"I'm a board member & am out numbered on my cutrent bod." - by definition, everyone is outnumbered on a board of more than two directors
"They have been avoiding communication & pushing through agenda items that are costing the assoication huge cost increases & are questionable at best." - this is your opinion, and it sounds like you have been outvoted
"I have called them out publicly & now they are holding a bod meeting to censure me & another bod menber for doing so." - OK, perhaps you earned the censure by calling them out publicly ...
" We are a 5 person bod & it is 3 vs 2 but they deciding everything around us with little to no communication." - it sounds as if you are being outvoted

"Our next election is 5 weeks away. I know censuring is a public slap on the wrist to us but my real concern is the upcoming election as our bylaws state you can't suspended or removed from service from the Division of Condominium.

What is the likely hood they can suspend to not allow us to run for the next bod?

Should we resign prior to the censure to be able to run so there is no record as they can't censure if no longer a bod member." - the censure vs Florida Condo law is beyond my knowledge

"Of course they are holding this meeting on Tuesday & Monday is a holiday. " - again, you have been outvoted, apparently

Re the rationale you provided:
"Use of excessive Profanity" - true?
"Hostile behavior in a Board Meeting" - how hostile? threats to get even, threats to go public?
"Failure to keep confidential the subject and content of a closed meeting of the Board" - true?
"Intimidation of the Property Manager regarding her job security" - did someone threaten the PM?

My summary - it sounds like you are getting outvoted because 3/5 of the BoD want to do one thing, and you and one other don't. It sounds like threats were made, names were called and you may have decided it was best to spill the content of the closed board meeting to the community? (it is arguable whether or not this is permitted since the meeting may, per your note, have been counter to you bylaws). Finally, you are trying an end run of the Florida statues to ensure you can still be nominated as a new director?
GenoS
(Florida)

Posts:2896


01/20/2019 6:14 PM  
Posted By JohnnaA on 01/20/2019 6:13 AM
Thank you. I know it is a public sslap on the wrist & they can't remove me.

My question still remains can they have us suspended by the state prior to election & time frame for that. Because our bylaws state we can't be suspended or removed by the division of condominiums.

Johnna

This is somewhat confusing. The state of Florida doesn't suspend anybody. By operation of law, a director is "suspended" if they fail to get "certified" within 90 days (see FS 720) of becoming a director. The statute calls for re-instatement once the requirement is met.

If a Director falls behind more than 90 days in any payments of money owed to the association then, by operation of law, he or she is deemed to have abandoned their seat on the board.

Verious felony charges and convictions can also serve to remove a board member, by operation of law.

Even in these instances, however, there's no one working for the state of Florida tracking any of this and they won't inform anyone that they're suspended. Any request by an HOA board to do anything against a director will fall on deaf ears because the law provides for no such thing.

The Florida HOA statute, FS 720, sets out the eligibility requirements for serving on the board, "all members of the association are eligible to serve on the board of directors". There are some restrictions but none of them has anything to do with whether or not someone was censured by the board. An HOA's governing documents can expand the eligibility of people to serve on the board but cannot restrict it further.

In short, no, they cannot have the state suspend you and no, they cannot prevent you from running again if you're not delinquent in your assessments of other monetary obligation.

It also doesn't matter what your bylaws say re. suspensions by the Division. Whatever the Division (and the DBPR) does is set by state law and administrative code, not your bylaws.
GenoS
(Florida)

Posts:2896


01/20/2019 6:37 PM  
Posted By GeorgeS21 on 01/20/2019 3:42 PM
My summary - it sounds like you are getting outvoted because 3/5 of the BoD want to do one thing, and you and one other don't. It sounds like threats were made, names were called and you may have decided it was best to spill the content of the closed board meeting to the community? (it is arguable whether or not this is permitted since the meeting may, per your note, have been counter to you bylaws). Finally, you are trying an end run of the Florida statues to ensure you can still be nominated as a new director?

It sounds to me like the closed meeting was improper and therefore anything done there is null and void. Holding improper secret board meetings SHOULD be called out publicly, I think. (If that's what happened. I agree the OP is very hard to understand.)

I also have the impression that the out-voting is happening outside of duly noticed board meetings. I could be wrong there, too.

Cursing and verbally assaulting others is never the right thing to do. Neither is a display of open hostility. I didn't get that anyone was making any threats.

I don't think it's possible to make an end run around non-existent statutes. One's Bylaws cannot prevent anyone from running, censured or not. That would give a sitting majority way too much power in dictating the makeup of future boards. It would be too easy for a sitting majority to make sure anyone who disagrees with them can't run the next time around. That's the only end-run I perceive here and it isn't the OP that's doing it.
MarkM19
(Texas)

Posts:297


01/21/2019 8:16 AM  
Johnna,
I personally think you are spending to much time thinking about what could happen and not enough time on what can happen. Being accused of something or being charged is not the same as being found guilty. If the meeting was not legal then technically it did not happen. What happened and what was said was not done under board rules. That is why you have legal board meetings. The State IMO wants nothing to do with this fight and would probably laugh as they read the compliant and then take 6 months to acknowledge.

If I were you, I would spend my time putting together a letter to send to every voting member of your association. I would outline the errors that continue to be made and the excess spending and Group Think. Anything that is not said in Executive session matters you are free to use against the 3 board members. Politics can be ugly, and you need to fight for those who elected you to fight for them. I would state that if you can get one more conservative person on the board including yourself and the other member you can right the ship. If you tell all your supporters and the other guy tells all his and the new person tells all of theirs you would be surprised at how many votes can be had. The letter is important when you talk about wasteful spending ears perk up. No one wants dues to increase if they can help it.

I have been on a board in your situation and I did what I am preaching, and it worked. We got the evil out and completely saved our community from future failure.

Good luck and please keep us posted.
JohnC46
(South Carolina)

Posts:8267


01/21/2019 9:26 AM  
One has to take many things posted with a grain of salt. In Jo's case she says the vote is always 3 to 2 with the same people voting the same way. No accusing Jo, but maybe she more part of the problem than the solution.
JohnnaA
(Florida)

Posts:15


01/21/2019 9:37 AM  
Thank you all for tour your responses. The residents are firmly behind me. As they can see what the others have done all year. I just want to make an educated descision since it is a holiday & I can't speak with my attorney to get independent advice.
MarkM19
(Texas)

Posts:297


01/21/2019 10:11 AM  
Johnny,
Sounds like you only want to hear what you want to hear. I doubt you will get free attorney advice if that is what you are waiting for. Best we can do is give opinions and you need to make of it as you will.

If you have the ear of the community and the Election is 5 weeks away vote out the members that you disagree with that are on the ballot. Sounds simple to me.


I hope you are generalizing your comment about every vote being 3 to 2 as no one is either right or wrong 100% of the time. If not John may be right.
JohnnaA
(Florida)

Posts:15


01/21/2019 10:14 AM  
I only posted on here to get input. Today is MLK day & my attorney is closed. I plan on speaking with him tomorrow but in case he isn't available I was asking for opinions here.

Thank you
AugustinD


Posts:1576


01/21/2019 10:44 AM  
Posted By GenoS on 01/20/2019 6:14 PM
[snipped here and there for brevity]By operation of law, a director is "suspended" if they fail to get "certified" within 90 days (see FS 720) of becoming a director.
...
The Florida HOA statute, FS 720, sets out the eligibility requirements for serving on the board, "all members of the association are eligible to serve on the board of directors".


Geno, from all I can tell, JohnnaA serves on the board of a condominium. For Florida condominiums, FS 718 is what applies. FS 720 does not apply. From FS 720.302(4): "This chapter 𖙈] does not apply to any association that is subject to regulation under chapter 718, chapter 719, or chapter 721... "

FS 718 appears to give the Division of Florida Condominiums significant power over condo boards. Specifics appear below. In particular, 718.501 (1) (d) 6. gives the Division of Florida Condominiums the power to remove a condominium director for any violation of FS 718. As interested, see below.

It appears to me that JohnnaA is at risk of a Division investigation and, in the extreme, removal by the Division of Florida Condominiums. But if so, I think her accusers are facing the same.


----------------

At 718.112 (2) (d) 2. Bylaws, Required Provisions, Unit Owner Meetings, lays out eligibility requirements:

-- a unit owner must not be seeking election to a ninth consecutive year of board service, unless certain conditions are met.

-- if a unit owner is a co-owner, then certain conditions must be met.

-- "a person who has been suspended or removed by the division under this chapter 𖙆]... is not eligible to be a candidate for board membership and may not be listed on the ballot."

-- "a person... who is delinquent in the payment of any monetary obligation due to the association, is not eligible to be a candidate for board membership and may not be listed on the ballot."

-- "A person who has been convicted of any felony in this state or in a United States District or Territorial Court, or who has been convicted of any offense in another jurisdiction which would be considered a felony if committed in this state, is not eligible for board membership unless such felon’s civil rights have been restored for at least 5 years as of the date such person seeks election to the board."

-- "A unit owner or other eligible person desiring to be a candidate for the board must give written notice of his or her intent to be a candidate to the association at least 40 days before a scheduled election."

Keyword searching for suspen" and "remov" in FS 718 turns up the following:
718.112 (2) (d) 4. b. "A director of an association of a residential condominium who fails to timely file the written certification or educational certificate is suspended from service on the board until he or she complies with this sub-subparagraph."

718.3027 (2) and (3) Conflicts of interest. [If the HOA board finds that a director has engaged in activity that is a conflict of interest, then FS 718.3027 says the director "shall be deemed removed from office."]

718.501 (1) (d) 6. "The division may impose a civil penalty individually against an officer or board member who willfully and knowingly violates a provision of this chapter, adopted rule, or a final order of the division; may order the removal of such individual as an officer or from the board of administration or as an officer of the association; and may prohibit such individual from serving as an officer or on the board of a community association for a period of time."
-------------

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