Mark Hankin, Hankin & Mazel
Many co-op and condo boards have met the stringent requirements for reopening their gyms and other amenity spaces, but there have been some unexpected and unpleasant surprises. Mark Hankin, a partner at Hankin & Mazel, has had a unique experience that he's going to share with us. Let's start quick and a quick description of the property.
It's a luxury condominium located in central Queens, New York.
So many boards we hear about are under tremendous pressure to reopen their amenities, especially their gyms. Was this board under a lot of pressure to reopen their gym?
Like most of my clients, there was tremendous pressure to get this gym open so that they could do something other than sit at home all day. People wanted to get back to physical activity. This is not a big gym; it has a capacity of approximately 25 people.
Boards have to jump through a lot of hoops to be able to reopen those gyms – they have to follow not only the state rules, but the city rules. Did the board do everything right?
They jumped right into it. They sanitized the entire gym top to bottom. They spaced all the equipment six feet apart to make sure that social distancing would be followed. Their anticipation was that under the state law, you couldn't have more than eight people in the facility at any one time. They introduced a scheduling platform where people could use the gym for one hour each. And then after each hour, the person who was monitoring the facility would do a cleaning so that everything would be cleaned at that time. They required that everyone in fact wear masks. They did everything that the New York City Department of Health required them to do, including having and filing their actual report with the city of New York before and during the time that they opened.
The maximum capacity is what, 33%? And this gym had enough room for 24 people, meaning the maximum would be eight.
Where did the problem arise, Mark?
I got a call one day from the board president telling me that they had just received a letter from one of their residents, copied to their lawyer, where she is telling us that she is a disabled person. She has Parkinson's, she's in a wheelchair, and she's going to be using the gym facility on a regular basis – she meant daily. And that she just wanted to let us know that that included the aide that would bring her to the facility and in the facility, and her trainer that basically is a physical fitness person that helps move her limb.
Now, obviously that threw the board for a loop. When they were considering opening the gym and knew that they could only have eight people at any one time in the facility, they were concerned. And now, they were put aback by the fact that someone would be taking up three spots. And they immediately called me because it's a disability issue. As you know, the ADA, New York state, the city of New York, the Fair Housing Act – everyone requires us to provide reasonable accommodation for disabled persons.And so we were left in a quagmire because if we would have known this before or thought about it before, there may have been a decision not to open the gym at all.
What did you do?
The process was simple. I spoke with her and asked her for her attorney's information. I got ahold of her attorney, and we tried to figure out a better way. I suggested at one point that perhaps the aide could stay outside and that only the trainer and the resident herself be inside. That was a problem for them. But remember, the word is reasonable accommodation – not accommodation, but reasonable accommodation.
Did you or the board feel that she was being unreasonable?
Well, in light of the limitations of the COVID opening of gyms, it was a little bit unreasonable because now, instead of having eight people in the gym every hour, it was limited to five. And we were trying to explain to her and her attorney that they were taking up a significant number of the limitation and making it difficult for us to, in fact, have other people in the building use the facility.
We did come to a reasonable compromise. One of the suggestions was that we in fact allow her to enter the gym earlier, something like 7:00 or 8:00 o'clock in the morning when nobody's really there. This gym happens to open at 9:00, which meant that we wouldn't have to worry about reducing the numbers during the day. The only problem is, with most buildings, as you know, you're required by law to have a monitor. So that means we'd have to bring the monitor in for an additional two hours every day in order to open the gym early to accommodate her.
These negotiations, did they take place between you and her attorney? Is she in on this conversation? Is the board there? How does that work?
It's between me and the attorney, and I'm conveying any response from the attorney to the board. And the board is listening to my advice and making a determination as to what's the best way to go. You know, the funny thing is, when the board created their rules of the opening of the gym, they specifically said no trainers. Why? Because of the limited number of people that could use the facilities.
So this was a direct breach of that rule to begin with, which you had not foreseen. How did it play out? Have you resolved the situation?
We're pretty close. I think what's going to happen is we are going to spend the additional money and we are going to allow her to come in at an earlier time so that the rest of the building can use the facility from 9:00 on and we can get at least eight people in there.
The other reason is political. When you see another person in your facility who has a trainer and you were told that no, one's allowed to have a trainer, it doesn't work very well for the rest of the residents.
So it sounds like the expense to the board will be hiring that monitor for the special sessions when she's there, maybe a little bit of cleaning, but she's happy with that. And so you've avoided a discrimination suit under the ADA, which is every board's worst nightmare.
Correct. And that's a message to all lawyers and buildings and their management: you need to take into account the fact that you may have disabled individuals in your building that require the use of that gym, and that may limit the number of people that you can in fact serve in your gym. It's a message that you better be careful, because right now I only know of one. It could turn out that other people may come out and want to use the facility that way as well.
Does this legal lesson apply beyond just the gyms? There are other amenities in the building, maybe a pool in the summertime, maybe a community room or a children's playroom or office space. Does that lesson spread out throughout the property?
A hundred percent. It applies to everything. The ADA doesn't look at one individual aspect of any disabled person's life. They look at all of the aspects. And as far as they're concerned, they're entitled to a reasonable accommodation of all amenities that your housing or your building allows.