Attorneys, HOA Experts Blast Deposition Comments In Federal Lawsuit
BY: ANDREW COLTON | Editor and Publisher
DELRAY BEACH, FL (BocaNewsNow.com) (Copyright © 2021 MetroDesk Media, LLC) — A former board member of the Seven Bridges Homeowners Association in Delray Beach says that the board has a right to sanction homeowners for posting unflattering comments to social media — if they do it from a home in the community.
But attorneys nationwide, including a nationally renowned First Amendment Fellow from the Freedom Foundation, and an HOA attorney with a national practice, say the board member is wrong.
(News App readers: use “web view” or “read on the web” for full report)
George Kramer, an attorney who recently opted to not re-run for his position on the Seven Bridges board, made the comments during an explosive deposition in the federal lawsuit filed against the Seven Bridges HOA by homeowner Deborah LaGrasso. Mr. Kramer told BocaNewsNow.com that he was “testifying as a former board member and made clear that the Board acted on the HOA’s counsel’s advice.” He responded to our request for comment after this article first appeared.
“To have an attorney who says he’s a litigator actually act on this belief is shocking to me and leads me to conclude one of two things. Either he is truly ignorant, or he knows exactly what he’s doing and is doing it to chill free speech,” said Attorney Michael Kushner of MBK Chapman. “This is beyond an overreach.“ Kushner represents homeowners in HOA disputes nationwide. MBK Chapman has offices in California and Florida.
“This argument that they have even a remote right to control anything they say in the privacy of their home is absurd,” added Kushner.
Gene Policinski, Senior Fellow for the First Amendment at Freedom Fourm Institute, concurs that an HOA can’t control speech.
“When you move in to a community, you don’t give up your first amendment rights,” said Policinski, “No court is going to go along with that.”
LaGrasso is a homeowner in the Seven Bridges community. She is accused of initiating a physical altercation with another woman on a tennis court who allegedly harassed her children. She was sanctioned for the incident although there is no video proof that it happened and police were never called. Unhappy with the punishment, LaGrasso posted negative — some allege anti-Semitic — comments about the HOA and its Board of Directors on Facebook. LaGrasso was fined $5000 for the social media posts and her family was banned from using the HOA’s amenities for a year. As news of the fine and posts spread, another woman in the community told LaGrasso, in a recorded phone call, that she and her family should move to a “Klan Community” instead of one that is “eighty percent Jewish.” LaGrasso is not Jewish. The caller, Rachel Tannenholz, is Jewish. The board took no action against Tannenholz. LaGrasso alleges that the Board of Directors only sanctioned her because she is not Jewish.
LaGrasso is suing under the Federal Fair Housing Act.
In his deposition, George Kramer stood by the fine against LaGrasso for the social media posts, pointing to the HOA’s governing documents which say “No obnoxious or offensive activity as determined by the board shall be carried on or about the lots, or in any or about any of the improvements, homes, or any portion of the Seven Bridges.”
This is the transcript of Mr. Kramer’s comments. We are publishing the pages of note. The entire deposition appears at the end of this article so there is no suggestion that the remarks are taken out of context. Depositions are sworn testimony. This deposition is filed with the United States District Court. (If the images do not appear, click here). Everything marked “A” is an answer by Mr. Kramer. All “Q” lines are questions asked by Ms. LaGrasso’s attorney, Scott Weires. The Seven Bridges HOA is represented by Mr. Fiala. Lines 1-4 are the end of a question by Mr. Weires.
(We are skipping ahead several pages after an irrelevant back-and-forth. The entire deposition appears at the end of this article).
Joe West runs CommunityAsssociation.net, a well-regarded clearinghouse of HOA news.
“I think the association is going to have some problems with this even if they have some sort of language that they think gives them the power,” said West. “More likely, they would be required to file a defamation lawsuit.”
Policinski, of the Freedom Forum Institute, agrees.
“If speech is defamatory, there is a remedy of law. We don’t fine people for raising points we don’t like.”
Which raises the question: if the HOA was truly concerned about LaGrasso’s comments, why didn’t it sue her for defamation instead of imposing a significant fine?
“If the board’s rights were violated, take appropriate legal action,” said Kushner of MBK Chapman. “But this isn’t appropriate. You can’t have a board harassing a couple because they don’t like them. While claiming (LaGrasso) was a bully, the HOA became the bully. Even if (the HOA) is right about everything, they gave away the moral high ground by being bullies. You’re allowed to say horrible things. It’s okay. If they rise to the level of defamatory conduct, there is a legal mechanism for dealing with that.”
Policinski says that an HOA’s “nuisance” rule isn’t meant to apply to a social media post, no matter how outrageous.
“Giving a loud speech at 3 a.m. under your neighbor’s window may be a nuisance,” said Policinski, of the Freedom Forum Institute. “Not the content of the speech.”
The current Seven Bridges Board of Directors declined the opportunity to comment on George Kramer’s deposition — or actions of the former board of directors — citing the ongoing litigation. The federal judge overseeing the matter has declined to dismiss the case despite multiple requests by the HOA for summary judgment. Trial is set for June. Proposed jury instructions were just filed by both parties.
The entire deposition appears, below. If you are reading in a news app and it does not appear, click here. Note highlights and other markings are in the initial filing and not a part of this report.
Update: This article initially stated that Mr. Kramer “resigned” from the board. He says that he opted to not run for election after the conclusion of his appointed term.Kramer
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