Brown v. Montage at Mission Hills

NANCIE BROWN, Plaintiff and Appellant, v. MONTAGE AT MISSION HILLS, INC., Defendant and Respondent

Summary by Jillian M. Wright, Esq.:

In the case of Brown v. Montage at Mission Hills (Aug. 20, 2021, Nos. E074341, E075762) ___Cal.App.5th___ [2021 Cal. App. LEXIS 694].), the California Court of Appeal, Fourth District found that a CID cannot require a rental to be for a minimum term for homeowners who owned prior to the CID adopting that requirement pursuant to Civil Code section 4740. In this case, Brown purchased a unit for the express purpose of renting it out as a short-term rental. Montage at Mission Hills later adopted a 30-day minimum rental period. Brown sued on the basis that she was exempt from that requirement because Civil Code section 4740 provides that homeowners are not subject to governing document provisions that “prohibit[ ] the rental or leasing of any of the separate interests … unless that governing document, or amendment thereto, was effective prior to the date the owner acquired title to their separate interest.”

The appellate court sided with Brown and found that minimum rental terms are rental prohibitions and not rental restrictions. Therefore, a short-term rental ban would not apply to homeowners who purchased prior to the ban’s adoption. The appellate court noted that “[t]he legislative history indicates that the Legislature’s intention was to ensure that owners maintained all rental and leasing rights they had at the time of purchase.”

What does this mean for your association?

If you have a minimum rental term in your governing documents it may not be enforceable against all homeowners, depending on the language of the provision and when it was adopted. If you have questions about the enforceability of your association’s minimum rental term, please contact us or your association’s legal counsel for further guidance.

*** End Summary **

 

Nos. E074341, E075762.
Court of Appeals of California, Fourth District, Division Two.
Filed August 20, 2021.
APPEAL from the Superior Court of Riverside County, Super. Ct. No. PSC1801783, Kira L. Klatchko, Judge. Reversed.

Slovak Baron Empey Murphy & Pinkney, Shaun M. Murphy and David A. Smith for Plaintiff and Appellant.

Fiore, Racobs & Powers and Julie R. Balbini for Defendant and Respondent.

 

CERTIFIED FOR PUBLICATION

OPINION

RAPHAEL, J.

An individual bought a condominium, which she consistently rented for short terms. Sixteen years after her purchase, the owner’s association amended its governing documents to prohibit renting properties for less than 30 days. We agree with the owner that she was exempt from this prohibition under Civil Code section 4740, subdivision (a) (section 4740). That provision provides that an owner of a property in a common interest development “shall not be subject to a provision in a governing document or an amendment to a governing document that prohibits the rental or leasing of” the owner’s property unless that document or amendment “was effective prior to the date the owner acquired title” to the property. The trial court held that she was not exempt, so we reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant and respondent Montage at Mission Hills, Inc. is a common interest development (CID) located in Cathedral City.[1] Plaintiff and appellant Nancie Brown purchased and acquired title to a property in Montage in 2002. At the time, Montage’s CC&Rs—Montage’s governing documents—did not prohibit any form of renting. Although the governing documents imposed some recordkeeping requirements for rentals, they did not ban short-term rentals (STRs) or require rentals to be for a minimum duration. This was important to Brown because she planned to use the property as an investment rental property and expected to be able to rent it for any length of time.

Brown consistently rented the property for short terms (that is, less than 30 days) from 2002 until the fall of 2017. In January 2018, Montage amended its governing documents to prohibit its members, including Brown, from renting or leasing their properties for periods shorter than 30 days. Montage notified Brown that it would enforce the new prohibition against STRs if she continued to rent her property for short terms.

Brown thereafter sued Montage, seeking declaratory relief among other claims, all of which turned on her assertion that she is exempt from Montage’s prohibition against STRs under section 4740. Brown sought summary adjudication on her declaratory relief claim, requesting that the trial court declare that section 4740 exempts her from the prohibition.

Montage responded with a motion for summary judgment. It argued that Brown’s claims failed because (1) section 4740 precludes CIDs from imposing complete bans on renting, but Montage’s prohibition on STRs is only a restriction on renting, and (2) Brown’s use of her property for STRs violated the governing documents’ prohibition on using the property for commercial purposes.

The trial court sided with Montage, finding that section 4740 does not apply because Montage’s governing documents do not “prohibit the rental or leasing” of Brown’s property but instead only restrict its rental. Because all of Brown’s claims turn on her assertion that section 4740 exempts her from the prohibition on STRs in Montage’s governing documents, the trial court granted Montage’s motion for summary judgment and denied Brown’s motion for summary adjudication. Brown timely appealed.

II. DISCUSSION

Section 4740, subdivision (a) states that an owner of a property in a CID shall not be subject to a provision in its regulations “that prohibits the rental or leasing of any of the separate interests in that common interest development” unless that provision “was effective prior to the date the owner acquired title to their separate interest.” The sole issue in this appeal is whether section 4740 exempts Brown from the restriction on rentals added to Montage’s governing documents after she had acquired title to her condominium. We conclude that it does.

Because this case comes to us on an appeal from the grant of a motion for summary judgment (to Montage) and denial of a motion for summary adjudication (to Brown) that turn on the same issue, we review the matter de novo based on facts that are undisputed. (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463; Hypertouch, Inc. v. ValueClick, Inc. (2011) 192 Cal.App.4th 806, 817 fn. 3.)

When Brown purchased her property in 2002, Montage’s governing documents did not preclude her from renting her property for short terms. Now, however, the governing documents would prohibit her from doing so. The question in this appeal is whether Montage’s amendments to its governing documents in 2018 prohibiting STRs constitute “amendment[s] to a governing document that prohibit[] the rental” of Brown’s property under section 4740. If so, section 4740 exempts Brown from the amendments because she acquired title before they took effect.

We must interpret a statute to effectuate the law’s purpose. (Green v. State of California (2007) 42 Cal.4th 254, 260.) To do so, we first look to the usual and ordinary meaning of the statute’s words. (Ibid.) If the ordinary meaning of the words is clear and unambiguous, “the statute’s plain meaning controls.” (Ibid.)

With regard to STRs, the plain meaning of section 4740 is not clear and unambiguous. On the one hand, if a regulation forbids any category of rental, such as a short-term lease, that regulation “prohibits” that type of rental, even if it does not prohibit all rentals. On the other hand, the section’s language could be read to bar only complete “prohibitions” on leasing but not “restrictions” on leasing that fall short of outright bans on all leasing. A treatise Montage cites accordingly reads it as “address[ing] only `prohibitions’ on leasing, not `restrictions’ on leasing. To the extent leasing is not totally prohibited, it is unclear what rental restrictions a [CID] might adopt and enforce retroactively.” (Sproul, Howell & Rosenberry, Advising California Common Interest Communities (CEB 2017), § 6.49.) Another treatise identified the same ambiguity: “The express language of [section] 4740, which uses the wording `prohibition,’ raises the question about `restrictions’ or `limitations’ on rentals as distinguished from `prohibitions’ against rentals. The question is: `When does a restriction become a prohibition,’ or `when is a restriction not a prohibition’?” (Cal. Common Interest Developments Law & Prac. (2020 ed.) § 22:15.) These treatises both (a) conclude that there are some “restrictions” on leasing that are not “prohibitions” and (b) note that it is unclear what makes a regulation a restriction rather than a prohibition.

The parties dispute how to deal with these questions. Montage argues that its ban on STRs is a “restriction” on the rental of Brown’s property, not a “prohibition.” On the other hand, Brown argues that Montage “prohibits the rental” of her property because it prohibits her from renting her property for terms of less than 30 days. We do not think this dispute can be resolved by contemplating the text alone. Because both interpretations of section 4740 are plausible constructions of its plain language, the text of the statute is ambiguous as it relates to STRs. (See Hoechst Celanese Corp. v. Franchise Tax Bd. (2001) 25 Cal.4th 508, 519 [statute is ambiguous if it is “susceptible to more than one reasonable interpretation”].)

Montage suggests that any ambiguity as to whether section 4740 allows “limitations” and “restrictions” on rentals as opposed to “outright prohibitions” can be resolved by reference to other provisions of the Davis-Sterling Act. Montage notes that other statutes in the Davis-Sterling Act provide that CIDs cannot “limit or prohibit . . . the display of the flag of the United States” (Civ. Code, § 4705, subd.), “may not prohibit posting or displaying of noncommercial signs, posters, flags, or banners” and may not “effectively prohibit[] or unreasonably restrict[]” various things within a CID. (E.g., Civ. Code, §§ 4745, subd. (a) 4745.1, 4750, 4754, subd. (c).) In Montage’s view, the waythat other Sterling-Davis Act statutes use the terms “limit” and “restrict” in addition to the term “prohibit” means that “prohibits” in section 4740 does not encompass “limitations” or “restrictions” on “the rental or leasing” of CID properties, but rather contemplates only complete bans on “the rental or leasing” of CID properties. Thus, Montage argues bans on STRs are permissible under section 4740 because they are a “limitation” or “restriction” on the rental of CID properties.

Although we may consider other provisions in “the statutory scheme of which the statute is a part” to interpret an ambiguous statutory provision, we may consider “a variety of extrinsic aids, including . . . the legislative history.” (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 997.) In doing so, we must “choose the construction that comports most closely with the Legislature’s apparent intent.” (Smith v. Superior Court (2006) 39 Cal.4th 77, 88.) We do not think the other Davis-Stirling provisions clearly settle the matter of interpreting the text of section 4740 because they also leave interpretive issues about what they prohibit and restrict. For the reasons explained below, we conclude the Legislature’s intent underlying section 4740 is best articulated in the statute’s legislative history. We therefore reject Montage’s argument that we need not consider section 4740’s legislative history, and we turn to that history to aid in determining the statute’s meaning. (Uber Technologies Pricing Cases (2020) 46 Cal.App.5th 963, 973.)

That history indicates that the Legislature intended broad protection for owners against restrictions on renting, including the sort of restriction at issue in this case. When enacting section 4740, the Senate’s originating committee recognized that “[s]ome CIDs have restrictions on renting out units,” such as “requiring a minimum amount of time for leases.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 150 (2011-2012 Reg. Sess.) as amended Apr. 25, 2011.) Section 4740 was proposed to “respond to those restrictions.” The corresponding Assembly committee stated that section 4740 was necessary because “only express legislative language will protect an owner’s right to lease his or her property from leasing restrictions that may be adopted by CID members subsequent to purchase.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 150 (2011-2012 Reg. Sess.) as amended June 9, 2011.) In these reports, then, the committees not only used the word “restrictions” (rather than “prohibitions”) but also made at least one reference to minimum-time restrictions.

Further, the legislative history indicates that the Legislature’s intention was to ensure that owners maintained all the rental and leasing rights they had at the time of purchase. By enacting section 4740, the Legislature sought to “preserv[e] the CID’s right to adopt leasing restrictions, while at the same time ensuring that the owner can only be so limited if the restrictions were in place at the time the interest was acquired.” The Legislature thus intended section 4740 to ensure that “[i]f members of a [homeowners association] vote to pass a restriction on rentals the restriction would not apply to an owner that had the right to rent or lease when they purchased unless they agree to waive that right.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 150 (2011-2012 Reg. Sess.) as amended June 9, 2011.)

Put another way, in enacting section 4740, the Legislature “declare[d] that the rights of CID owners to rent or lease their properties, as the rights existed at the time they acquired them, should be protected.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 150 (2011-2012 Reg. Sess.) as amended Apr. 25, 2011.) That is, the Legislature passed the statute to “[p]rovide[] that the right of an owner to rent or lease his or her separate interest [in a CID] shall be the same as when the owner purchased his or her separate interest throughout the life of ownership.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 150 (2011-2012 Reg. Sess.) as amended June 9, 2011.)

In both its language and its substance, then, section 4740’s legislative history shows that the Legislature sought for it to broadly address both rental “restrictions” and rental “prohibitions” in CIDs. In our view, the statute’s legislative history demonstrates that the statute’s goal is to exempt CID property owners from any kind of rental prohibition or restriction that did not exist when the owner acquired title to the property. The exemption must include at least the type of restriction at issue here, where a category of rentals (STRs) is barred. We do not address whether an association could enact a generally applicable limitation on occupants (such as a noise restriction) or impose certain generally applicable requirements (such as a fee for using a common facility, or housekeeping rules) that affect renting but do not directly prohibit “the rental or leasing” of the property itself. That is, we need not decide whether a CID association may pass generally applicable rules that may negatively affect a CID property owner’s ability to rent or lease her property yet do not “prohibit” its renting or leasing. We need not deal with that question in this case, where the regulation bars all STRs. That is a prohibition on renting or leasing, not a prohibition on something else that happens to affect it.

We note that the Legislative Counsel, whose opinions we must “give due deference” (Grupe Development Co. v. Superior Court (1993) 4 Cal.4th 911, 922), reached the same conclusion. In its opinion, “the legislative history [of section 4740] demonstrates that the Legislature sought to address both rental restrictions and outright prohibitions,” and that the statute’s purpose “was to exempt [CID property] owners from any rental prohibition, regardless of its nature, that took effect on or after January 1, 2012, unless the prohibition took effect before the owner acquired title.”

The Legislative Counsel thus summarized its opinion about section 4740’s effect on rental prohibitions in CIDs, including prohibitions on STRs, as follows: “[U]nder Civil Code section 4740, an owner of a separate interest in a [CID] is subject to a provision of a governing document or an amendment to a governing document that became effective on or after January 1, 2012, and that prohibits an owner from renting out the owner’s interest in the property under certain conditions, such as a short-term lease, only if either (1) the prohibition took effect before the owner acquired title to his or her separate interest in that development, or (2) the owner consented to the governing document or amendment containing that provision.” (Italics added.) Given section 4740’s legislative history, we agree.

In briefing, Montage dismisses section 4740’s legislative history as “irrelevant”—an assertion we reject—and offers the following three arguments why Brown is not exempt from its ban on STRs.

Montage first argues an STR is a “limited license” to use the property, and thus Brown’s guests who rent her property on a short-term basis are licensees, not “tenants” who rent the property under section 4740. Montage failed to preserve this line of argument for consideration on appeal. (See Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1216-1217.)[2]

Regardless, we reject the argument. In analogous contexts, courts have routinely used the term “rent” and its variants to refer to short-term occupancies. (See City of San Bernardino Hotel/Motel Assn. v. City of San Bernardino (1997) 59 Cal.App.4th 237, 246 [“The ordinance defines `rent’ as `the consideration charged, whether or not received for the occupancy of space in a hotel . . . .'”]; Batt v. City and County of San Francisco (2010) 184 Cal.App.4th 163, 167 [“[T]he Hotel Tax imposes a levy of 14 percent `on the rent for every occupancy of a guest room in a hotel in the City and County.'”]; In re Transient Occupancy Tax Cases (2016) 2 Cal.5th 131, 135 [discussing ordinance that defined “rent” as “`the total consideration charged to a Transient'”].) The same conclusion is supported by the common, dictionary definition of the terms: The rental of a property is “a usually fixed periodical return made by a tenant or occupant of property to the owner for the possession and use thereof.” (https://www.merriam-webster.com/dictionary/rent, italics added.) A STR is a “rental” under section 4740, even if it could be described as a “license” as well.

Montage next argues that Brown is effectively running a hotel out of her property. Montage thus contends Brown’s use of her property for STRs violates regulations in the governing documents added in 2018 that allow her to use her property for “residential” use only and prohibit her from using it for “business or commercial activities.” This argument is curious in that a lease exceeding 30 days also is a “business or commercial” activity in the sense that Montage is construing that phrase, particularly when that lease is for profit. Because the association does not purport to ban renting or leasing in general, the prohibition on business or commercial activity must refer to operating a business at the property, not renting or leasing the property itself. Indeed, the governing documents’ prohibition is for such activities “in” any residence or “on” any portion of the property. We cannot see how the prohibition on “business or commercial” activity can be read to prohibit short term rentals but not longer term ones. Regardless, as we explained above, section 4740 exempts Brown from any regulation, whatever its label, that restricts her rights to rent her property if the regulation did not exist at the time she acquired title to the property and she does not agree to the regulation. Montage’s prohibition on “business or commercial” activities, if interpreted the way Montage does as a prohibition on STRs, is another such regulation that would contravene section 4740.[3]

Montage nonetheless argues its STR prohibition is permissible due to “public policy considerations.” Montage observes that individual property owner’s rights must sometimes give way to the public interest and the right of CIDs to decide their rules and restrictions. We must give effect, however, to the public policy considerations that were given priority by the Legislature when it adopted section 4740. (See Palmer v. Agee (1978) 87 Cal.App.3d 377, 384 [statutory interpretation that “will promote legislative intent, purpose and policy will override a construction that would defeat it”].) Section 4740 was enacted to protect “the rights of CID owners to rent or lease their properties, as the rights existed at the time they acquired them.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 150 (2011-2012 Reg. Sess.) as amended Apr. 25, 2011.) (Italics added.) Its goal is to ensure that “the right of an owner to rent or lease his or her separate interest [in a CID] shall be the same as when the owner purchased his or her separate interest throughout the life of ownership.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 150 (2011-2012 Reg. Sess.) as amended June 9, 2011.) Our task is to ensure that goal is met. (Palmer v. Agee, supra, at p. 384; Bernard v. City of Oakland (2012) 202 Cal.App.4th 1553, 1560-1561.)

Finally, we note that the Legislature enacted Civil Code section 4741 while this appeal was pending. That statute provides, among other things, that a CID may “adopt[] and enforce[] a provision in a governing document that prohibits transient or short-term rental of a separate property interest for a period of 30 days or less.” (Civ. Code, § 4741, subd. (c).) But Civil Code section 4741 also provides that, “[i]n accordance with [s]ection 4740, [Civil Code section 4741] does not change the right of an owner of a separate interest who acquired title to their separate interest before the effective date of this section to rent or lease their property.” (Civ. Code, § 4741, subd. (h).) Even recently, the Legislature sought to protect the short-term rental rights of CID property owners who took title to their properties before sections 4740 and 4741 went into effect, much like section 4740’s general protection for the rental rights of owners who took title before a change to rental prohibitions in governing documents, even though in section 4741 the Legislature permitted CIDs to regulate STRs going forward.

Because Montage’s prohibition on STRs did not exist when Brown acquired title to her property, she is exempt from the prohibition under section 4740. We therefore reverse the trial court’s orders granting Montage’s motion for summary judgment and denying Brown’s motion for summary adjudication.

III. DISPOSITION

The judgment granted to Montage is reversed. The trial court is directed to enter a new order denying Montage’s motion for summary judgment and granting Brown’s motion for summary adjudication. Brown is awarded costs on appeal.

MILLER, Acting P. J. and MENETREZ, J., concurs.

[1] The Davis-Sterling Act defines a common interest development as including a community apartment project, a condominium project, a planned development, or a stock cooperative. (Civ. Code, § 4100.) Any of these is managed by an association that is called either an owner’s association or a community association. (Civ. Code, § 4800.) An association’s governing document is called a “Declaration” (Civ. Code, § 4250), or more fully a “Declaration of Covenants, Conditions and Restrictions,” which is commonly called the association’s “CC&Rs.” (See generally Nahrstedt v. Lakeside Village Condominium Association (1994) 8 Cal.4th 361, 369.)

[2] Montage’s one-line argument on the issue made in its summary judgment reply brief without any supporting authority or analysis is insufficient to preserve the argument on appeal. (See Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 437.)

[3] We do not address whether Montage and other CIDs can enforce a new generally applicable prohibition on operating a business at the property, even if that new rule burdens renters. That issue is not presented here however because Brown uses her property only for STRs.

Epsten, APC Announces its New Leadership Team Effective September 1, 2021

FOR IMMEDIATE RELEASE
August 18, 2021

Download pdf

San Diego, California – Epsten, APC, one of the oldest and largest Southern California community association law firms, announces its new officers and leadership team effective September 1, 2021.

Epsten, APC, has one of the strongest teams of common interest development attorneys in the industry with 21 attorneys and three offices in Southern California. The firm is known for its professionalism and quality as well as the reliable legal services it provides to its more than 1700 residential and commercial common interest development clients.

It continues to be the firm’s goal to foster a culture based on traditional professional values and service to its clients. The firm practices law in an industry where trust, relationships, and excellence define success for its clients and itself.  The firm will continue to provide the same continuity and stability as it has for more than 35 years.

These changes and additions to the Epsten, APC management structure will lead us into the future with a strong team of attorneys and dedicated staff. Managing Shareholders, Jon H. Epsten, Esq., CCAL and Susan M. Hawks McClintic, Esq., together, with fellow shareholders Kieran J. Purcell, Esq., Anne L. Rauch, Esq., Rian W. Jones, Esq., Dea C. Franck, Esq. and William S. Budd, Esq., agree these changes in officers and new roles will position the firm for its next decade of growth.

Effective September 1, 2021, the new leadership team for Epsten, APC is as follows:

  • President/CEO/Managing Shareholder: Susan M. Hawks McClintic, Esq.
  • Vice President/Client Relations: Jon H. Epsten, Esq., CCAL
  • Vice President/CFO: Kieran J. Purcell, Esq.
  • Secretary: Anne L. Rauch, Esq.
  • Chief Operations Officer: Carolyn D. Decker
  • Transactional Department Chairs: Susan M. Hawks McClintic, Esq., and Kieran J. Purcell, Esq.
  • Litigation/Appellate Department Chairs: Anne L. Rauch, Esq., and Rian W. Jones, Esq.
  • Indian Wells Office Managing Shareholder: Dea C. Franck, Esq.
  • Complex Litigation Attorney Mentor: William S. Budd, Esq.

About Epsten, APC

Epsten, APC and its attorneys are dedicated to the practice and study of laws and regulations related to California community associations and common interest developments. As a local Southern California law firm with offices in San Diego, Temecula and Indian Wells, Epsten, APC is proud to be a recognized leader in both community association law and construction law since 1986.

Learn more at www.epsten.com.

# # #

CONTACT:
Tiffany Christian
Epsten, APC
800.300.1704
[email protected]
www.epsten.com

New Face Covering Guidelines Go Into Effect on June 15, 2021

By Jacquelyn E. Quinn, Esq.

On June 9, the California Department of Public Health (“CDPH”) issued updated Guidance for the Use of Face Coverings for the general public.

Until June 15, the following face covering guidance remains in effect:

  • For fully vaccinated persons, face coverings are not required outdoors except when attending crowded outdoor events, such as live performances, parades, fairs, festivals, sports events, or other similar settings.
  • For unvaccinated persons, face coverings are required outdoors any time physical distancing cannot be maintained, including when attending crowded outdoor events, such as live performances, parades, fairs, festivals, sports events, or other similar settings.
  • In indoor settings outside of one’s home, including public transportation, face coverings continue to be required regardless of vaccination status, unless an individual is exempt from wearing a face covering.

In the workplace, employers subject to the Cal/OSHA COVID-19 Emergency Temporary Standards (ETS), must ensure that all workers are provided and properly wear face coverings as required by the ETS.

On June 15, the following face covering guidance will go into effect:

Masks are not required for fully vaccinated individuals, except in the following settings where masks are required for everyone, regardless of vaccination status:

  • On public transit (examples: airplanes, ships, ferries, trains, subways, buses, taxis, and ride-shares) and in transportation hubs (examples: airport, bus terminal, marina, train station, seaport or other port, subway station, or any other area that provides transportation).
  • Indoors in K-12 schools, childcare and other youth settings.
  • Note: This may change as updated K-12 schools guidance is forthcoming, pending updates for K-12 operational guidance from the CDC.
  • Healthcare settings (including long term care facilities).
  • State and local correctional facilities and detention centers.
  • Homeless shelters, emergency shelters and cooling centers.

Additionally, masks are required for unvaccinated individuals in indoor public settings and businesses (examples: retail, restaurants, theaters, family entertainment centers, meetings, state and local government offices serving the public).
In settings where masks are required only for unvaccinated individuals, businesses, venue operators or hosts may choose to:

  • Provide information to all patrons, guests and attendees regarding vaccination requirements and allow vaccinated individuals to self-attest that they are in compliance prior to entry.
  • Implement vaccine verification to determine whether individuals are required to wear a mask.
  • Require all patrons to wear masks.

Please note, no person can be prevented from wearing a mask as a condition of participation in an activity or entry into a business. In workplaces, employers are subject to the Cal/OSHA COVID-19 Emergency Temporary Standards (ETS) or in some workplaces the Cal/OSHA Aerosol Transmissible Diseases standard, and should consult those regulations for additional applicable requirements.
Exemptions to masks requirements:
The following specific settings are exempt from face covering requirements:

  • Persons in a car alone or solely with members of their own household,
  • Persons who are working alone in a closed office or room,
  • Persons who are obtaining a medical or cosmetic service involving the nose or face for which temporary removal of the face covering is necessary to perform the service,
  • Workers who wear respiratory protection, or
  • Persons who are specifically exempted from wearing face coverings by other CDPH guidance.

The following individuals are exempt from wearing masks at all times:

  • Persons younger than two years old. Very young children must not wear a mask because of the risk of suffocation.
  • Persons with a medical condition, mental health condition, or disability that prevents wearing a mask. This includes persons with a medical condition for whom wearing a mask could obstruct breathing or who are unconscious, incapacitated, or otherwise unable to remove a mask without assistance.
  • Persons who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication.
  • Persons for whom wearing a mask would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines.

California is Planning to Reopen on June 15, 2021

By Jacquelyn E. Quinn, Esq.

It is the announcement we have all been waiting for. On June 15, California will move Beyond the Blueprint for a Safer Economy. Meaning, most community association activities and facilities will be permitted to return to usual, pre-pandemic operations under the State’s guidance and the State’s purple, red, orange and yellow tiers will be eliminated.

Beginning June 15, California will no longer impose capacity limitations, physical distancing requirements or vaccine verification/negative testing in indoor and outdoor settings, with an exception for “mega events.” Mega events are events that bring together large crowds of greater than 5,000 (indoors) and 10,000 (outdoors) attendees. Vaccine verification/negative testing will continue to be required for indoor mega events and recommended for outdoor mega events.

As far as face coverings, now and beyond June 15, all individuals and businesses must continue to follow the California Department of Public Health face covering guidance. It is anticipated that California will update its face covering guidance to generally align with the CDC’s guidance regarding face coverings on or around June 15. Therefore, it is important to check the State’s face covering guidance for updates.

It is also important to note that counties and cities are allowed to impose COVID-19 requirements that are more restrictive than the State’s guidelines. Therefore, community association boards should confirm whether there are any requirements or orders issued by the county or city related to common area reopening’s before making decisions regarding how to proceed.

While very limited measures will remain, community associations may be able to see life getting back to a pre-pandemic normal beginning June 15.

Conducting Board Meetings in a Post-Pandemic World

By Rhonda R. Adato, Esq.

Governor Gavin Newsom proclaimed a State of Emergency in California as a result of the threat of COVID-19 on March 4, 2020. Much has happened since then, but we thankfully seem to be approaching the end of the pandemic. California officials reported one hundred thirty confirmed cases in California per 100k of COVID-19 on May 24, 2021, down from a peak of twenty-eight thousand, five hundred fifty confirmed cases in California per 100k on January 9, 2021 (https://covid19.ca.gov/state-dashboard/).  The State also reported that as of May 26, 2021, 49.7% of California’s population has been fully vaccinated, with over six million available doses on hand (https://covid19.ca.gov/vaccination-progress-data/).

Public health restrictions are loosening as a result of these heartening statistics. The State announced that it will lift capacity and distancing restrictions for most businesses and activities on June 15, 2021 (https://covid19.ca.gov/safer-economy/).

As California reopens, community associations are left to navigate the transition once again. This brings to mind one question in particular: are community associations required to resume in-person board meetings? Or can they continue to meet remotely?

Many associations transitioned to remote board meetings during the pandemic, for good reason. Federal, State and local public health authorities either prohibited or strongly recommended against gatherings. Community associations were understandably concerned about the potential liability associated with someone contracting COVID-19 at a board meeting. Remote meetings, supported by a number of different platforms like Zoom, Microsoft Teams and more, also offered a number of conveniences. Participants were able to log in from the safety of their own homes. Disruptive members could be muted or removed. Just as many people discovered the benefits of working from home during the pandemic, many associations similarly discovered the benefits of remote board meetings, and would like to keep to that routine.

The Open Meeting Act (“Act”) does not address this specific issue, mainly because the Act was not drafted with the pandemic in mind. The Act contemplates in-person meetings. For example, Civil Code section 4925(a) states “[a]ny member may attend board meetings, except when the board adjourns to” or meets solely in executive session. While the Act authorizes teleconference meetings, it still requires an association to provide a physical location where a member can observe the proceedings. Specifically, Civil Code section 4090(b) states that any notice of an open, teleconference board meeting must “identify at least one physical location so that members of the association may attend, and at least one director or a person designated by the board shall be present at that location. Participation by directors in a teleconference meeting constitutes presence at that meeting as long as all directors participating are able to hear one another, as well as members of the association speaking on matters before the board.”

For the time being, associations should aim to comply with current public health regulations regarding gatherings. Until June 15, 2021, the State’s tier system is still in place, which prescribes guidance regarding gatherings depending on the COVID-19 statistics within specific counties. Local jurisdictions may also impose stricter regulations with respect to gatherings.

However, once the State reopens on June 15, 2021, and the pandemic continues to (hopefully) abate, it will likely become more difficult for associations to justify noncompliance with the Act. Associations may continue to meet remotely, over teleconference, but will likely need to designate a physical location per Civil Code section 4090. Associations should make sure to comply with any applicable COVID-19 restrictions when either hosting an in-person board meeting or offering members a physical location to observe a board meeting per Civil Code section 4090.

As we grapple with these questions, a solution might thankfully be coming down the pike. California State Senator Dave Min recently introduced Senate Bill 391, which, if chaptered, would add section 5450 to the Civil Code. Proposed Section 5450(b) would allow a board meeting to be conducted entirely by teleconference, without any physical location for the attendance of any director or member, as long as certain conditions are satisfied. Section 5450 would apply in the event of a state of emergency proclaimed by the State Governor under Government Code section 8625. This would allow associations to avoid the strictures of Civil Code section 4090 as long as a state of emergency is declared in California. This would, in turn, give community associations a little more time to transition to life after the pandemic.

Of course, it would be useful if the legislature passed legislation authorizing associations to conduct entirely remote board meetings at any time, whether or not a state of emergency exists. That would be one step forward in ushering the community association world into the digital age. One can only dream!

Please contact us or your community association counsel for any specific advice on this topic.

California Mask Mandate Remains in Place until June 15th

The State recently announced that its existing mask guidance would remain in place until, at least, June 15.  Under the State’s order, all individuals, regardless of vaccination status, must continue to wear face coverings when in all indoor settings outside of their home unless exempt from wearing face coverings in accordance with the guidance. Vaccinated individuals also continue to be required to wear face coverings outdoors when in a crowd.

The CDC recently announced that individuals who are vaccinated can resume activities without wearing a mask or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.

Therefore, community associations must continue to comply with the State’s existing mask guidance consistent with both the State and CDC guidance.

Southern California Tier Assignments as of May 18, 2021

 

As of May 18, 2021, the State has assigned these tiers to the following counties:

  • San Diego County: Tier 3 – Moderate (orange)
  • Riverside County: Tier 3 – Moderate (orange)
  • San Bernardino County: Tier 3 – Moderate (orange)
  • Los Angeles County: Tier 4 – Minimal (yellow)
  • Orange County: Tier 4 – Minimal (yellow)
  • Imperial County: Tier 3 – Moderate (orange)
  • Kern County: Tier 3 – Moderate (orange)
In accordance with California’s Blueprint for a Safer Economy, tier status goes into effect the Wednesday following each weekly tier assignment announcement on Tuesdays, unless otherwise directed by the State.

 

As a reminder, the tiers are:

  • Tier 1 – Widespread (purple)
  • Tier 2 – Substantial (red)
  • Tier 3 – Moderate (orange)
  • Tier 4 – Minimal (yellow)
See below and refer to the State’s website for more information on the status of activities open in each county.
For information regarding the tier assigned to your county visit the California COVID-19 Blueprint for A Safer-Economy webpage.

 

***

 

The State guidelines on the various sectors are as follows:

 

VENTILATION FOR INDOOR OPERATIONS

All businesses permitted to operate indoors based the State’s tiers must follow the California Department of Public Health’s interim Guidance for Ventilation, Filtration, and Air Quality. 

POOLS

Widespread (purple):
  • Outdoor pool operations may remain open.
  • Outdoor hot tubs may remain open only for use by one household group at a time or in cases where six feet of distancing can be maintained.
  • Indoor pools, saunas, hot tubs and steam rooms remain closed.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools / Aquatic Venues” found in the State’s Industry Guidance for Gyms and Fitness Facilities.
Substantial (red):
  • Outdoor pool operations may remain open.
  • Outdoor hot tubs may open only for use by one household group at a time or in cases where six feet of distancing can be maintained.
  • Indoor pools, saunas, hot tubs and steam rooms remain closed.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools / Aquatic Venues” found in the State’s Industry Guidance for Gyms and Fitness Facilities.
Moderate (orange):
  • Outdoor pool operations may remain open.
  • Outdoor hot tubs may remain open only for use by one household group at a time or in cases where six feet of distancing can be maintained.
  • Indoor pools may open when physical distancing can be maintained for non-household groups.
  • Indoor saunas, hot tubs and steam rooms remain closed.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools / Aquatic Venues” found in the State’s Industry Guidance for Gyms and Fitness Facilities.
Minimal (yellow):
  • Outdoor pool operations may remain open.
  • Outdoor hot tubs may remain open only for use by one household group at a time or in cases where six feet of distancing can be maintained.
  • Indoor pools, saunas, hot tubs and steam rooms may open when physical distancing can be maintained for non-household groups.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools / Aquatic Venues” found in the State’s Industry Guidance for Gyms and Fitness Facilities.

GYMS AND FITNESS CENTERS

Widespread (purple):
Substantial (red):
Moderate (orange):
Minimal (yellow):
In all Tiers: Personal training between a total of one person and one trainer at a time per premises is allowed. Associations must follow the applicable provisions of the State’s Industry Guidance for Limited Services when providing one-on-one personal fitness training.

LIBRARIES

 Widespread (purple):
Substantial (red):
Moderate (orange) & Minimal (yellow):

MOVIE THEATERS

 Widespread (purple):
Substantial (red):
Moderate (orange):
Minimal (yellow):

OUTDOOR RECREATIONAL FACILITIES

In all Tiers:

RESTAURANTS

Widespread (purple):
Substantial (red):
  • Restaurants may open indoor with modifications. Indoor capacity must be limited to 25% or 100 people, whichever is less.
  • Associations must follow all applicable provisions of the State’s Industry Guidance for Dine-In Restaurants.
  • Wineries, breweries, and distilleries (where meals are not served) outdoor only with reservations, seating, 90-minute time limit and limited hours of operation.
  • Bars where no meals are provided must remain closed.
Moderate (orange):
Minimal (yellow):

HAIR SALONS

In all Tiers:

PRIVATE EVENTS & MEETINGS

 Widespread (purple):

Substantial (red):

  • Outdoor: Maximum of 50 people, or 200 if all attendees are tested or show proof of full vaccination.
  • Indoor: Permitted if all attendees are tested or show proof of full vaccination and no more than 100 people.
  • Associations must follow all applicable provisions of the State’s Industry Guidance for Private Venues and Events.

Moderate (orange):

  • Outdoor: Maximum of 100 people, or 300 if all attendees are tested or show proof of full vaccination.
  • Indoor: Permitted if all attendees are tested or show proof of full vaccination and no more than 150 people.
  • Associations must follow applicable provisions of the State’s Industry Guidance for Private Venues and Events.

Minimal (yellow):

  • Outdoor: Maximum of 200 people, or 400 if all attendees are tested or show proof of full vaccination.
  • Indoor: Permitted if all attendees are tested or show proof of full vaccination and no more than 200 people.
  • Associations must follow applicable provisions of the State’s Industry Guidance for Private Venues and Events.

 

PRIVATE GATHERINGS

 Widespread (purple):

Substantial (red):

  • Outdoor: Maximum of 25 people
  • Indoor: Strongly discouraged, but allowed with modifications (no food/drink except when following the standards in guidance).  Attendance limited to 25% capacity and up to 3 households or 10 people.
  • Associations must follow all applicable provisions of the State’s Guidance for Gatherings.

Moderate (orange):

  • Outdoor: Maximum of 50 people.
  • Indoor: Strongly discouraged, but allowed with modifications (no food/drink except when following the standards in guidance).  Attendance limited to 25% capacity or 25 people, whichever is fewer.
  • Associations must follow applicable provisions of the State’s Guidance for Gatherings.

Minimal (yellow):

  • Outdoor: Maximum of 100 people.
  • Indoor: Strongly discouraged, but allowed with modifications (no food/drink except when following the standards in guidance).  Attendance limited to 50% capacity or 50 people, whichever is fewer.
  • Associations must follow applicable provisions of the State’s Guidance for Gatherings.

Association Functions… Private Event or Private Gathering? That is the Question!

Requirements for Private Events
Testing and Vaccine Verification
Attendance Limits for Private Events and Private Gatherings

 

On April 15, 2020, the California Department of Public Health issued an updated plan for Californians to gather outside their households. Such functions fall into one of two categories: 1) Private Events or 2) Private Gatherings.

This is exciting news but requires associations to familiarize themselves with whether a specific function constitutes a private event or a private gathering, as each requires compliance with a different set of rules and requirements.

      • Private Events: A private event is defined as meetings, receptions and conferences. Private events must have a defined guest list and the ability to assign seating for guests. Testing and vaccine verification requirements are required for all indoor private events and may be used to increase attendance limits for outdoor private events.
      • Private Gathering: A private gathering is defined as social situation that brings together people from different households at the same time in a single space or place. According to the State, private gatherings are social, informal gatherings with no defined guest list. There are no testing or vaccine verification requirements for private gatherings.

Based on the definitions and characteristics provided by the State for private events and private gatherings, it appears reasonable to construe association organized or sanctioned functions as private events. This means, for most association functions, your association will be required to comply with the guidance and requirements for Private Events. This includes any board meeting, association committee or club meeting, member meeting, town hall meeting, or events organized or sponsored by the association. A private gathering would encompass situations in which residents or other members of the community choose to informally gathering in areas around the community.

Requirements for Private Events

Private events must follow the Private Venues and Events guidance which requires:

    • A defined guest list
    • Assigned seating
    • Use of face coverings unless actively eating and/or drinking
    • Physical distancing of at least 6 feet between people from different households unless people are fully vaccinated
    • Testing and vaccination verification for indoor private events and outdoor private events with increased attendance
    • Cleaning and disinfecting protocols including the disinfecting of any microphones or equipment used
    • No intermingling of multiple private events
    • COVID-19 testing program for weekly optional testing for employees working at a private event
    • Live entertainment is permitted at private events but must follow all relevant guidance for Outdoor Seated Live Events and Performances Guidance or Indoor Seated Live Events and Performances.

In order to accomplish these requirements attendees will need to be “checked-in” at any private event. For many association meetings the defined guest list is going to be the membership list, or the committee/club roster. In addition, associations might consider implementing a reservation system for meetings to ensure attendance limits are maintained.  At any private event the association must also have assigned seating. One way this may be imposed is by numbering seats prior to the meeting or event and assigning each attendee a number when they sign in corresponding to their assigned seat. For any indoor private event, and those outdoor private events using increased capacities, the association must verify each attendee is fully vaccinated or has tested negative for COVID-19. Acceptable forms of proof of vaccine and negative tests is discussed further below.

Associations must also follow the California Department of Public Health’s interim Guidance for Ventilation, Filtration, and Air Quality for all indoor operations.

Testing and Vaccine Verification

A person is considered fully vaccinated at least 2 weeks after they have received the second dose in a 2-dose vaccine (i.e., Pfizer-BioNTech or Moderna), or at least 2 weeks after they have received a single-dose vaccine (i.e., Johnson and Johnson [J&J]/Janssen). Acceptable proof of full vaccination is a vaccination card (which includes the name of the person vaccinated, type of vaccine provided and date last dose administered) OR a photo of a vaccination card as a separate document OR a photo of the attendee’s vaccine card stored on a phone or electronic device OR documentation of vaccination from a healthcare provider.

      • A person may also show proof of a negative COVID-19 test. Testing must be conducted with 72 hours before the start of an event, if the person received a PCR test. Antigen test (or rapid tests) are also acceptable if conducted within 24 hours of the start of an event. Results must be available prior to entry into the event. Acceptable proof of a negative COVID-19 test may be a printed document (from the test provider or laboratory) OR an email or text message displayed on a phone or electronic device from the test provider or laboratory. The information provided should include name of person tested, type of test performed, and date of negative test result (again, for PCR, date of negative result must be within prior 72 hours; for antigen, date of negative result must be within prior 24 hours).

The testing option allows persons who are not able to receive a vaccine or who choose not to do so to attend events by providing valid proof of a timely negative COVID-19 test, as set forth above.

Attendance Limits for Private Events and Private Gatherings

For the foreseeable future, attendance limits for private events and private gatherings will continue to be governed by a county’s assigned tier in the California COVID-19 Blueprint for A Safer-Economy.

PRIVATE EVENTS:
Widespread (purple):
  • Outdoor: Maximum of 25 people, but if all attendees are tested or show proof of full vaccination, attendance goes up to 100 people.
  • Indoor: Not permitted.
Substantial (red):
  • Outdoor: Maximum of 50 people, or 200 if all attendees are tested or show proof of full vaccination.
  • Indoor: Permitted if all attendees are tested or show proof of full vaccination and no more than 100 people.
Moderate (orange):
  • Outdoor: Maximum of 100 people, or 300 if all attendees are tested or show proof of full vaccination.
  • Indoor: Permitted if all attendees are tested or show proof of full vaccination and no more than 150 people.
Minimal (yellow):
  • Outdoor: Maximum of 200 people, or 400 if all attendees are tested or show proof of full vaccination.
  • Indoor: Permitted if all attendees are tested or show proof of full vaccination and no more than 200 people.
PRIVATE GATHERINGS:
Widespread (purple):
  • Outdoor: Maximum of 3 households.
  • Indoor: Not permitted.
Substantial (red):
  • Outdoor: Maximum 25 people.
  • Indoor: Strongly discouraged, but allowed with modifications (no food/drink except when following the standards in guidance).  Attendance limited to 25% capacity and up to 3 households or 10 people.
Moderate (orange):
  • Outdoor: Maximum 50 people.
  • Indoor: Strongly discouraged, but allowed with modifications (no food/drink except when following the standards in guidance).  Attendance limited to 25% capacity or 25 people, whichever is fewer.
Minimal (yellow):
  • Outdoor: Maximum 100 people.
  • Indoor: Strongly discouraged, but allowed with modifications (no food/drink except when following the standards in guidance).  Attendance limited to 50% capacity or 50 people, whichever is fewer.

Epsten, APC Coronavirus Update – April 6, 2021

San Diego, Riverside, San Bernardino and Imperial Counties
Move to Less Restrictive Orange Tier

As of April 6, 2021, the State has assigned these tiers to the following counties:

  • San Diego County: Tier 3 – Moderate (orange) – Effective April 7th
  • Riverside County: Tier 3 – Moderate (orange) – Effective April 7th
  • San Bernardino County: Tier 3 – Moderate (orange) – Effective April 7th
  • Los Angeles County: Tier 3 – Moderate (orange) – No Change
  • Orange County: Tier 3 – Moderate (orange) – No Change
  • Imperial County: Tier 3 – Moderate (orange) – Effective April 7th
  • Kern County: Tier 2, Substantial (red) – No Change
As most of us recall, every county in California is assigned to a tier based on its positivity rate, adjusted case rate, and health equity metric. Counties must remain in a tier for at least 3 weeks before moving to a less restrictive tier. Counties must meet the next tier’s criteria for two consecutive weeks to move to a less restrictive tier. If a county’s metrics worsen for two consecutive weeks, it will be assigned a more restrictive tier. Read more about tier assignment rules.
In accordance with California’s Blueprint for a Safer Economy, tier status goes into effect the Wednesday following each weekly tier assignment announcement on Tuesdays, unless otherwise directed by the State.

 

As a reminder, the tiers are:

  • Tier 1 – Widespread (purple)
  • Tier 2 – Substantial (red)
  • Tier 3 – Moderate (orange)
  • Tier 4 – Minimal (yellow)
Permitted services and activities may resume with required modifications according to your county’s assigned tier and subject to any additional restrictions required by local jurisdictions.
See below and refer to the State’s website for more information on the status of activities open in each county.
For information regarding the tier assigned to your county visit the California COVID-19 Blueprint for A Safer-Economy webpage.
***

The State guidelines on the various sectors are as follows:

VENTILATION FOR INDOOR OPERATIONS

All businesses permitted to operate indoors based the State’s tiers must follow the California Department of Public Health’s interim Guidance for Ventilation, Filtration, and Air Quality. 

POOLS

Widespread (purple):
  • Outdoor pool operations may remain open.
  • Outdoor hot tubs may remain open only for use by one household group at a time or in cases where six feet of distancing can be maintained.
  • Indoor pools, saunas, hot tubs and steam rooms remain closed.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools / Aquatic Venues” found in the State’s Industry Guidance for Gyms and Fitness Facilities.
Substantial (red):
  • Outdoor pool operations may remain open.
  • Outdoor hot tubs may open only for use by one household group at a time or in cases where six feet of distancing can be maintained.
  • Indoor pools, saunas, hot tubs and steam rooms remain closed.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools / Aquatic Venues” found in the State’s Industry Guidance for Gyms and Fitness Facilities.
Moderate (orange):
  • Outdoor pool operations may remain open.
  • Outdoor hot tubs may remain open only for use by one household group at a time or in cases where six feet of distancing can be maintained.
  • Indoor pools may open when physical distancing can be maintained for non-household groups.
  • Indoor saunas, hot tubs and steam rooms remain closed.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools / Aquatic Venues” found in the State’s Industry Guidance for Gyms and Fitness Facilities.
Minimal (yellow):
  • Outdoor pool operations may remain open.
  • Outdoor hot tubs may remain open only for use by one household group at a time or in cases where six feet of distancing can be maintained.
  • Indoor pools, saunas, hot tubs and steam rooms may open when physical distancing can be maintained for non-household groups.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools / Aquatic Venues” found in the State’s Industry Guidance for Gyms and Fitness Facilities.

GYMS AND FITNESS CENTERS

Widespread (purple):
Substantial (red):
Moderate (orange):
Minimal (yellow):
In all Tiers: Personal training between a total of one person and one trainer at a time per premises is allowed. Associations must follow the applicable provisions of the State’s Industry Guidance for Limited Services when providing one-on-one personal fitness training.

LIBRARIES

 Widespread (purple):
Substantial (red):
Moderate (orange) & Minimal (yellow):

MOVIE THEATERS

 Widespread (purple):
Substantial (red):
Moderate (orange):
Minimal (yellow):

OUTDOOR RECREATIONAL FACILITIES

In all Tiers:

RESTAURANTS

Widespread (purple):
Substantial (red):
  • Restaurants may open indoor with modifications. Indoor capacity must be limited to 25% or 100 people, whichever is less.
  • Associations must follow all applicable provisions of the State’s Industry Guidance for Dine-In Restaurants.
  • Wineries, breweries, and distilleries (where meals are not served) outdoor only with reservations, seating, 90-minute time limit and limited hours of operation.
  • Bars where no meals are provided must remain closed.
Moderate (orange):
Minimal (yellow):

HAIR SALONS

In all Tiers:

OUTDOOR LIVE SEATED EVENTS & PERFORMANCES

All outdoor live events and performances must comply with the State’s Outdoor Seated Live Events and Performances Guidance. A permissible outdoor venue for live audience performances must either be a permanent and fixed facility, focused around a stage round, field court, or other central area designed primarily for viewing entertainment or athletics by an audience OR a defined and demarcated outdoor area.
If your association has a permissible outdoor venue, please consult with your association’s legal counsel regarding the various restrictions and capacity limitations based on your county’s tier assignment.

Beginning April 15th – More Indoor & Outdoor Gatherings and Private Events Will be Allowed with Restrictions

(MORE INFORMATION TO COME)

On April 2, the California Department of Public Health announced updates that will loosen COVID-19 restrictions on both outdoor and indoor gatherings and private events and meetings such as receptions and conferences. The updates will take effect beginning April 15 and will depend on each county’s respective tier assignment.

The State has not yet released detailed guidance on what modifications are required in order to hold permissible gatherings or private events. It is anticipated that such guidance will be released prior to April 15. Associations will be required to comply with all applicable guidance issued by the State and any local authorities before permitting or conducting any gatherings and private events in accordance with its county’s tier level.

Until such guidance is released, associations should review the State’s Guidance for Ventilation, Filtration and Air Quality in Indoor Environments to begin preparing for reopening facilities. All businesses and activities permitted to operate indoors must follow this guidance. Associations should also consider consulting with its other experts (janitorial, engineering, plumbing) in anticipation of the possibility of reopening facilities that have been shut down and inactive for prolonged periods.

GATHERINGS
social, informal gatherings with no defined guest list
or testing or vaccination verification requirements

Widespread (purple):
  • Outdoor: Maximum of 3 households.
  • Indoor: Not permitted.
Substantial (red):
  • Outdoor: Maximum 25 people.
  • Indoor: Strongly discouraged, but allowed with modifications (no food/drink except when following the standards in guidance).
  • Capacity limited to 25% and up to 3 households or 10 people.
Moderate (orange):
  • Outdoor: Maximum 50 people.
  • Indoor: Strongly discouraged, but allowed with modifications (no food/drink except when following the standards in guidance).
  • Capacity limited to 25% or 25 people, whichever is fewer.
Minimal (yellow):
  • Outdoor: Maximum 100 people.
  • Indoor: Strongly discouraged, but allowed with modifications (no food/drink except when following the standards in guidance).
  • Capacity limited to 50% or 50 people, whichever is fewer.

PRIVATE EVENTS
meetings/receptions/conferences

 

Mandatory in all tiers: defined guest list, seating chart/assigned seating, testing and vaccination verification can increase capacity limits, no intermingling of multiple private events.

Widespread (purple):

  • Outdoor: Maximum of 25 people, but if all guests are tested or show proof of full vaccination, capacity goes up to 100 people.
  • Indoor: Not permitted.

Substantial (red):

  • Outdoor: Maximum of 50 people, or 200 if all guests are tested or show proof of full vaccination.
  • Indoor: Permitted if all guests are tested or show proof of full vaccination and no more than 100 people.

Moderate (orange):

  • Outdoor: Maximum of 100 people, or 300 if all guests are tested or show proof of full vaccination.
  • Indoor: Permitted if all guests are tested or show proof of full vaccination and no more than 150 people.

Minimal (yellow):

  • Outdoor: Maximum of 200 people, or 400 if all guests are tested or show proof of full vaccination.
  • Indoor: Permitted if all guests are tested or show proof of full vaccination and no more than 200 people.