HOA meetings transcripts

Question

Florida enables recording of HOA meetings:

FLORIDA STATUTE 718.112(2)(C) states: Board of administration meetings.—Meetings of the board of administration at which a quorum of the members is present are open to all unit owners. Members of the board of administration may use e-mail as a means of communication but may not cast a vote on an association matter via e-mail. A unit owner may tape record or videotape the meetings. The right to attend such meetings includes the right to speak at such meetings with reference to all designated agenda items. The division shall adopt reasonable rules governing the tape recording and videotaping of the meeting. The association may adopt written reasonable rules governing the frequency, duration, and manner of unit owner statements.

If the meeting is done through the phone, to avoid problems caused by COVID-19. Does recording over the phone create a conflict with Florida wire-tapping laws?

934.03 Interception and disclosure of wire, oral, or electronic communications prohibited.

Because Florida requires all parties to consent, if any party did not consent then this would veto the right of other owners to record.

Which statute would take precedent and why? Ideally there would be relevant cases to provide precedent.

Florida Statues: 934.03 Interception and disclosure of wire, oral, or electronic communications excerpt:

(h) It shall **not** be unlawful under this section and ss. 934.04-934.09 for any person:
1. To intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public.
2. To intercept any radio communication which is transmitted:
a. By any station for the use of the general public, or that relates to ships, aircraft, vehicles, or persons in distress;
b. By any governmental, law enforcement, civil defense, private land mobile, or public safety communications system, including any police or fire communications system, readily accessible to the general public;
c. By a station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or
d. By any marine or aeronautical communications system.
3. To engage in any conduct which:
a. Is prohibited by s. 633 of the Communications Act of 1934; or
b. Is excepted from the application of s. 705(a) of the Communications Act of 1934 by s. 705(b) of that act.

Answer 1

There is no provision in Florida law that states that by becoming a member of an HOA you have consented to anything regarding recording. What is dispositive in this case is standard in all-party consent states, that a person cannot veto open recording. If the person does not participate in the communication, they are not a party. If recording is announced and obvious, then they have no reasonable expectation of privacy. Smiley v. Florida summarizes the legal situation.

Not all oral communications recorded without prior consentar subject to exclusion under the wiretap law. “The statute protects only those ‘oral communications’ uttered by a person exhibiting an expectation of privacy under circumstances reasonably justifying such an expectation.” State v. Inciarrano, 473 So. 2d 1272

This is because Fla. Stat. 930.02 says that

“Oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication.

This is a very standard quirk of these laws, that the "reasonable expectation of privacy" condition is encoded via the definition of the communication, and not as an exception to the general law.

Answer 2

All parties have consented

By becoming members of the HOA they agreed that meetings would be recorded.

That said, to avoid future dispute, it’s probably best that the meeting be reminded of this and that a single recording be made and distributed as per the “reasonable rules” clause.

Answer 3

Although I think the other answer provided may be correct, given the general understanding of HOA meetings being "in-person" and the language of the law as you've pasted it in your question, I certainly wouldn't risk doing the recording based on that explanation.

That said, all is not lost for the would-be recorder of the meeting... in fact, the law you linked to contains your answer!

(h) It shall not be unlawful under this section and ss. 934.04-934.09 for any person:

1. To intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public.