Question: I received notice for a homeowners association hearing, stating my 19-year-old son was cited for smoking marijuana in the association's parking lot with some other young people. No police were involved or called by security or management. My son denies the charge. He was cited by an association security guard who himself partakes in the drug culture.
As owner of our unit, the "citation" went to me so I attended the hearing. I asked the security guard if he could identify my son and how he knew it was marijuana being smoked as there was no police report or lab tests. He said my son was wearing a white shirt, but could not identify him any other way. He said he had never met him. The manager became agitated and said she was "shutting the hearing down" because I was "interrogating the security guard" whom she hired. I asked why the police were not called. The manager said, "The police take too long to get here." The hearing committee consisted of the manager, a supposed homeowner, an employee from the manager's office and the security guard who cited my son. No board member was present at the hearing.
After I threatened to call my lawyer, the board decided not to fine me, but left the "citation" in my homeowner file. The property manager and board are now openly telling our HOA staff and other homeowners that my son smokes marijuana. Can an HOA security guard cite someone for smoking marijuana without the police being involved and without any proof? How can I get the HOA to remove this record from my homeowner file and stop the manager and her staff from slandering my son?
Answer: The manager had no authority to shut down the hearing, let alone call or conduct it. You were correct to question the authority of this "committee" and to challenge its "ruling." This was an unlawfully convened meeting. There is no legal authority for management or a security guard to issue citations or hold closed-door "Star Chamber"-like proceedings. Official meetings of the association are called by board directors or the owners themselves — not managers or security guards.
Generally, the board has a duty to preserve the common areas in a manner that promotes enjoyment and safety of its occupants. Hiring a management company and/or security staff to assist with various chores does not automatically transfer the board's authority and obligations to oversee the association or to enforce governing documents. As third-party vendors, this manager and security guard cannot usurp the board's authority, nor can they act unilaterally by engaging in meetings where accusations are hurled against titleholders. Such activity could even subject the association to liability.
If the board wants to conduct a hearing regarding possible illegal activity, the "illegal" activity should first be reported to law enforcement. Afterward, any proposed hearing for so-called illegal activity must be properly noticed, meet the necessary quorum requirements and be attended by board directors, not vendors. Due process during a hearing requires fairness and unbiased arbiters. Here, the committee lacks power and authority to issue "citations" let alone conduct evidentiary hearings on alleged criminal activity. These actions reduce the hearing's purpose to one of harassment, humiliation and demeaning the person seeking justice.
The association's power is limited to dealing with enforcement of internal association policies and the covenants, conditions and restrictions. The board must involve law enforcement to deal with violations of law and criminal activity.
Merely labeling the document you received a "citation" does not afford it credibility. Any such documents placed in your file may subject the board, the association and those who created them to liability by failing to remove those documents after receiving proper notice. False written statements made without an applicable privilege and which "expose any person to hatred, contempt, ridicule, or obloquy, or which [cause a person] to be shunned or avoided, or which has a tendency to injure [a person] in his occupation" may constitute libel, according to Civil Code section 45.
False statements that are spoken which "[charge] any person with crime, or with having been indicted, convicted, or punished for crime" may constitute slander, according to Civil Code section 46. Notify the board of the alleged defamatory material contained in your file, demand that the material be removed immediately and demand written assurances that such action was taken. A similar notice should be sent to the management and security company demanding they cease making false statements about your son.
In the event the board ignores your demands, does not remove this material or challenges your right to have it removed, your son may have a claim for defamation. If the statements contained in your file are indeed false, your son may not need to prove damage to his reputation or an actual loss to recover a monetary award. Statements that relate to an accusation of criminal activity may be classified as defamation "per se," which reduces the plaintiff's burden of proving the claim, as outlined in Civil Code section 45a and Yow v. National Enquirer (2008).
Titleholders need to take a hard stance against this type of abuse. By allowing situations like this to continue, an unintended precedent may be set, lowering the bar for the type of harassment levied against owners.
Zachary Levine, partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian JD, P.O. Box 10490, Marina del Rey, CA 90295 or firstname.lastname@example.org.Copyright © 2015, Los Angeles Times