While prior Executive Orders contained clear requirements about how to address COVID-19, the most recent South Carolina Executive Orders leave much to the imagination. For those familiar with South Carolina and its approach to legal issues, this might not be surprising.
In South Carolina, the basic difference for gatherings currently is that, unlike prior Executive Orders that required face coverings and strictly limited gatherings in terms of number of participants, social distancing, and hygiene efforts, the current orders only encourage compliance with these guidelines.
That leaves the board of directors of any HOA / condo with the question of whether it should comply with all those guidelines even though there is not an actual requirement to do so—at least not from the State. There may still be local ordinances or rules in place for a County or municipality in South Carolina.
What was previously required and what is now recommended are essentially the same:
- Still required in state government offices, buildings, and facilities;
- Attendees of a gathering (now encouraged, previously required) to wear a face covering;
- The latest Executive Orders have urged counties and municipalities to enact or implement orders requiring individuals to wear face coverings “in public settings where settings where they are, will be, or reasonably could be located in close proximity to others who are not members of the same household and where it is not feasible to maintain six (6) feet of separation from such individuals or to otherwise practice effective ‘social distancing’ in accordance with CDC and DHEC guidance.” For example, the City of Columbia requires face coverings to be worn in public within the city. The City of Charleston has also implemented its own requirements.
- For gatherings like a community meeting the latest executive orders encourage (rather than require) no more than 250 people or 50% of the locations occupancy as determined by the fire marshal, whichever is less, and also wearing a face covering;.
One specific portion of the most recent Governor’s Orders is especially relevant for community associations and their boards of directors. The following is the language found in these orders:
The organizers, operators, owners, or hosts of, or other parties responsible for, a Gathering should take reasonable steps to incorporate, implement, comply with, and adhere to any applicable sanitation, “social distancing,” and hygiene guidelines promulgated by the CDC, DHEC, or any other state or federal public health officials, as well as relevant industry guidance, to limit exposure to, and prevent the spread of, COVID-19.
While it is unclear whether any of the Executive Orders is obligatory for Gatherings at this point, this language certainly should make any board of directors take note. As the “parties responsible for” any Gathering, the association acting under the direction of its board of directors will need to consider carefully whether it will comply with recommended CDC and DHEC guidelines related to COVID. There is no question that the safest course is to comply with the guidelines.
As I’ve mentioned before, this all comes down to two basic questions:
Can our HOA or condo hold community meetings in person?
Depending on whether local ordinances or rules are in place, this may be answered either “yes” or “no.” If the answer is “yes” then the second question is:
Should our HOA or condo hold community meetings in person?
First, no two communities are exactly the same. Homeowners, managers, and boards of directors should keep that in mind. What is the right answer in an active 55+ community may be different from a high rise condominium, which may also be different from a large single family community.
Second, the decision about holding in-person community meetings is a matter of best judgment for the board of directors. The board of directors was elected by the members to make decisions such as this.
Third, the CDC continues to recommend that large gatherings be avoided, particularly those in which physical (social) distancing cannot be maintained between people who live in different households. The CDC specifically lists events like sporting events, concerts, festivals, conferences, parades, or weddings, and it is not difficult to see community association annual meetings fitting neatly into these types of events.
All these factors are things the board of directors will want to consider. So long as a board’s decision is made in good faith, with the care an ordinarily prudent person would exercise, and with the reasonable belief that it is in the best interest of the community, then it is unlikely that a person challenging the decision could prevail and the board would be on good ground for its decision.
The information contained in this article is provided for general purposes only and does not constitute legal advice. If you or your community have questions about holding community meetings contact one of the experienced community association attorneys with Law Firm Carolinas.
Author: David Wilson
Articles have been Reprinted with permission from Black, Slaughter, Black.
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