Letter to the Board

Dear Board Members,

I am writing you regarding Section 8.10 (a) Parking.

On Friday, May 1, after being home for one hour and then having to leave, I found a 24 hour warning sticker on my car. My car bumper encroached 1/2" in my personal driveway to the imagined “continuation of the walk way”. When I approached Moses, the security guard who has issued the violation, he informed me that the car was in violation because it was one third of an inch into the walk way. I asked him to repeat one third of an inch three times because of my disbelief. After I repeated it to him his story changed to 1/3 of the car. This man had no idea who should be receiving a violation and who should not. I have since come to find out that it is one third of the “walk way”, which incidentally was never mentioned as a possibility by this man. I feel that anyone who received a violation from him should start with a clean slate due to the fact he was and possibly still is completely unaware of how to dole these violations out.

First, let me state I never received a letter regarding this matter dated March 27, or otherwise. I spoke with several residents after I received this warning. Some residents had received this letter while many others I spoke with had not. One resident was kind enough to copy and provide me with a copy after the fact on May 2^nd.

Besides being blindsided by this new rule I have many other concerns, the first being the inconsistencies of the verbiage of Section 8.10(d). The bylaw specifically stated that cars would be towed. This was voted on and apparently passed the boot was not, neither were the conditions. A board can not make arbitrary changes, when they bear stark differences from the original approved doctrine, without having to resubmit the motion and vote. In continuation, there does not seem to be a clear cohesive thought through the entire parking section, nor does the information listed in various locations. The website, monthly magazine, and letter all have different versions of what the actual ruling is and what standards need to be met (ie. 6, 8 or 24 hours) to be in violation. It is irresponsible to afford residents with conflicting information and expect them to be able to decipher the actual bylaw by parsing from multiple sources. Also, the signs placed to warn people say unauthorized vehicles. Why not say it like it is? Residents will be booted on their own private property.

Secondly, you the board have a fiduciary responsibility to us the residents. You ran for office and were elected under the guise that you would act in our best interest. You have given sole discretion, with regards to violations, to The Whitestone Group based solely on an affidavit with no tangible proof of a violation. The Whitestone Group will subsequently be financially benefiting from the exercise of this discretion. It is completely unethical to enact such a bylaw with a complete disregard for standards, which would need to be met, to impose a fine/boot and recourse for the residents to challenge the violation.

Third, there is no statute in the state of Florida Legislation giving a HOA the right to trespass on private property, hire an out side firm to do so, or amend the bylaws in an attempt to circumvent state law. The association does not have the legal right to invite any unauthorized person onto a homeowner’s property without their permission. Statute 810.09 only goes so far as to give an association authorization to “to communicate an order to leave the property” on an owners behalf.

In addition, defacing private property is a civil offence. If a car is damaged in the placement or removal of said boot the HOA as well as The Whitestone Group is liable. The stickers, also, are not easy to remove and leave paper and residue on the window. This residue can damage the mechanism that is used to open and close automatic windows or the window in its removal. I for one will not think twice about filing a civil suite.

Fourth, our one car is extremely long and barely manages to fit in our “authorized” driveway area. It is not our fault that Engle did not have the forethought to ensure that we had a sufficient area to park our car. Our cars have never been obscenely obstructing the walkway but there is limited space and I am not in the market for a new car.

Furthermore, for many residents, including myself, our driveways are short. We have three people in our household and have permanent storage shelves in our garage leaving room for only one car. With the other two cars in the driveway pulled up as so not to protrude minimally into the imagined “continuation of the walk way” our own walkway to the front door becomes inaccessible. We will not pay $155 to be able to walk up to our own front door.

Fifth, with up to an hour response time to have the boot removed will put working residents in a precarious position. With unemployment at over 12% in Fort Myers, I for one will not allow my job to be at risk so that a few residents can have the option of walking the side walk even though they continue to walk in the street. Since you saw it fit to impose this bylaw and fine so that residents may walk on the sidewalk; should you not also enact a bylaw stating these same residents are not allowed to walk in the street blocking through traffic? It is more of a hindrance and safety hazard people walking in the streets than the walk ways being blocked.

Sixth, statute 720.305 section (2) specifies that fines may be no more than $100 per violation/day and $1000 cumulative. In continuation a fine may not be levied without a minimum of 14 day notice and a formal hearing before a board of (at minimum) three non-board members. To have the boot removed residents would incur a cost of $155 and may be booted without notice. The association does not have the right to amend the bylaws as so not to be in accordance with state statutes.

Finally, since you have seen it fit to use the pretense of “emergency situations” as a reasonable excuse to enact this bylaw I would like to remind you that several times the YELP on the gates have malfunctioned during actual emergencies. If a resident is in an emergency situation and their car is booted requiring them to rely on 911 and the YELP has malfunctioned, prohibiting or at best delaying first responders, you leave the entire community open to a negligent lawsuit. If you are truly concerned about the residents wellbeing then this alone should suffice as the reason for not carrying through with the booting. Also, now that I have brought this line of reasoning to your attention; should this scenario ever arise I will provide this letter as evidence that the board was aware of the problem and that the inaction on their part was negligent. The preponderance of the evidence to illustrate my point are as follows:

1. As a HOA you have a tort with your residents to ensure their safety and wellbeing.

2. By enacting a bylaw to restrain a vehicle from being used in an emergency situation as well as not taking proactive steps to remedy the malfunctions of the YELP on the gates leaving said residents at risk of losing invaluable time during a crisis.

3. Submitting residents to possible unnecessary exacerbation of injuries or death.

4. The injury or exacerbation there of was a reasonably foreseeable consequence of the HOA’s action/inaction.

Therefore the HOA is left liable for gross negligence. It won’t matter what you write in the bylaws to try and wipe away that indelible stain, any resident or person has the right to sue based on the aforementioned statements citing negligence.

I urge you to do the right thing and dispose of this bylaw. I know that you hear often of accusations that power mongering and dictatorship are your only objectives, and that you do not listen to the residents. Please prove these ideas wrong. I have offered you numerous reasons on why this bylaw should not be in affect and most are hard to refute. I hope that you have read this letter with an open mind and consider my stance in this situation. Thank you for your time.