What is "Due Process"

In case you missed it, there has been a discussion on the web among HOA practitioners about what is required with regard to hearings in HOAs and how "due process" is a factor. The first thing you should all know is what "due process" means. 

"Due process (more fully due process of law) is the principle that the government must respect all of the legal rights that are owed to a person according to the law of the land. As developed through a large body of case law in the United States, this principle gives individuals a varying ability to enforce their rights against alleged violations by governments and their agents (that is, state actors), but normally not against other private citizens ... Due process has also been frequently interpreted as placing limitations on laws and legal proceedings, in order for judges instead of legislators to define and guarantee fundamental fairness, justice, and liberty. ..." (www.wikipedia.org - my emphasis)
  It may help to understand that HOAs and Condo Associations are not really "State Actors" because they are not public or governmental agencies. Even so, there are some situations where they have been put in that category by judges, and certainly, legislators and others discussing HOA and Condo issues have used the term pretty freely so I will just go with the idea that "due process" in the context of HOAs and Condos means fundamental fairness. If an HOA ever has to defend itself, that is the key. In other words, any owner subject to discipline deserves to know:
(1) what conduct is actionable,
(2) what disciplinary action can be considered,
(3) and if such action is to be considered, they deserve a "fair hearing" of which they must receive notice and an opportunity to appear. 

California requires this, and you can find a full discussion on the statutes and requirements in the educational Enforcement Primers available in the webstore on this website. 

Is there a hearing required every time that a fine is considered?  

Some practitioners believe a hearing is required for each violation and each fine being considered. Others (including me) do not. Most that I know accept at least that continuing violations (such as construction of an unapproved item) allow for daily or weekly or such fines without holding multiple hearings. Some have creative thought processes - for example, one colleague has expressed a "Three Strikes You're Out" philosophy, professing there should be a limit to the number of times that an owner is fined for the same (although re-occurring) violation, after which a Board should consider more serious action, such as seeking a court order. 

I believe that volunteer board members should not have to be parents, reminding owners (or whomever they allow in their units) who are acting like irresponsible or spiteful "children" again and again and again that there are ramifications to bad behavior.  

My position is that it is appropriate for HOA and Condo Association Boards to impose multiple fines for re-occurring bad behaviors without having multiple hearings. However, keeping the idea of "fundamental fairness" in mind, I suggest specifically addressing the ramifications of reoccurring and/or continuing violations in multiple formats, and the more the better, ... and ... at the least, (1) in the fine policy, (2) in the first warning and subsequent hearing notice letter to the owner who is subject to disciplinary action, (3) at the hearing, and (4) in the hearing decision letter provided to the owner. This seems to me like fair notice of what is subject to continuing or re-occurring fines. The Board should not have to hold a hearing for each repeated or continuing violation. Language to the following effect could be used in all communications including the hearing: "Continuing and/or re-occurring fines may (shall for the decision letter) be imposed for continuing or re-occurring violations of the same nature." Who would not understand that? Continuing bad behavior after such warnings should, in my opinion, preclude the need for hearing after hearing. And that, as far as I am concerned, constitutes reasonable "due process".  

How many times should you have to take time out of your life and money out of the association coffers to "remind" an adult ...  

To Not park resident vehicles in guest parking spaces
To Not let your dog bark all day and night
To Not let your guests create a disturbance at the pool such that others cannot      enjoy it
To Not disrupt an association meeting
To Not let your children vandalize property or throw rocks and debris at passing      cars 

I could go on and on ... but 4 or more warnings should be "due process" enough for any continuing OR re-occurring similarly offensive behavior. Just my "two cents worth" on that subject!  

And for the other "98 cents" worth, visit Beth's Blog for my thoughts on confronting witnesses...and check out this website where you will find free articles on enforcement, FYIs on fines, hearings, and adoption requirements for new rules and rule modifications, and best of all, incredibly useful (and affordable) educational Primers. Be sure to peruse the Publications and/or the Webstore to find the set of Enforcement Primers which were written to assist boards in formulating enforcement policies and practices that work. You will find a series of 5 Enforcement Primers that cover basic rule setting and enforcement, sample forms and letters, and for everyone who encounters problematic neighbors or violators, advanced Primers on Noise and Nuisance issues, Neighbor to Neighbor disputes, and Parking and Towing matters. It is my belief that success in enforcement comes through organized, professional and business-like handling of these matters, combined with good efforts to engender cooperation, communication, and peer pressure as part of the process of getting owners to conform voluntarily with the rules and regulations of the association. You will recognize that as a recurring theme throughout the tools I produce for the benefit of boards, owners, managers, association vendors and anyone who deals with home owner and condominium owner associations.