A prestigious gated community’s housing association is testing the reach of an act designed to protect deployed military personnel in a spat over typhoon shutters.

Perez Acres Housing Association the managing board of Perez Acres —home to many famous Guam residents — has filed suit asking a Superior Court of Guam judge for declaratory judgment enforcing association rules against one of its members.

Judge Katherine Maraman of the Superior Court is being asked to determine Michael A. Tougher’s status in the military as well as whether the Sailor and Soldier’s Relief Act or the Servicemembers Civil Relief Act is enforceable and provides appropriate protection.

Michael A. Tougher a captain in the Guam Army National Guard serving with the 1/294th Infantry Battalion (Light) deployed to the Horn of Africa; and Wendy T. Tougher Michael’s wife; were notified April 9 by David R. Fowler general manager at Perez Acres that they were in violation of PAHA policy for installation and use of typhoon shutters not approved by the board.

The Toughers had The Shutter Factory install shutters that were not in conformance with the board-approved accordion design and installation of shutters from AMS Corp.

Fowler further stated in his policy violation letter that the Toughers did not complete and submit to either himself or the board for approval a Typhoon Shutter Installation Request Form required for any homeowner desiring to install new shutters or replace existing ones.

The typhoon-shutter policy adopted by the board on July 24 2003 stated that only an approved accordion design installed by AMS Corp. is allowed.

The policy further outlined shutters were to remain open when the island is in typhoon condition 4 and closed only in typhoon conditions 1 2 or 3.

The association’s Area Policy Manual revised Dec. 6 2001 provided for penalties for infractions of the shutter policy that include loss of common-area privileges suspension of cable television and a levy of an assessment up to $50 per day.

Court documents obtained by the Journal stated the Toughers informed Perez Acres of their intention to not bring their unit into compliance with the association’s policy and that they intended to invoke the protection of the Sailors and Soldiers Relief Act of 1940 and the Servicemembers Civil Relief Act of 2003.

On May 11 the board rejected the Toughers challenge commenced assessing a $50 per day fine and disconnected their cable-television services.

The Toughers secured the services of the law firm of Carlsmith Ball LLP to represent them. On Dec. 9 attorney Roger Crouthamel filed an application in the Superior Court of Guam to stay action and prohibit penalties and asked for immediate reinstatement of cable-television service to the Toughers.

James M. Maher a partner in the law firm of Maher & Thompson PC on behalf of Perez Acres countered on Dec. 12 by filing an opposition to the defendant’s application.

The matter is now before Maraman. All parties were called into court on Dec. 14 to discuss the matter. At that hearing Crouthamel filed a reply to the original complaint.

Maraman said she had not seen the recent filings. Crouthamel then asked Maraman to make a ruling on the case alleging his client’s family was suffering from the penalties being imposed on them by the Perez Acres Homeowners Association.

Maraman said she would have to review the documents and set a hearing for Dec. 17. That hearing has been delayed until further notice as the judge has stayed all action (including mounting fines) for 90 days until Tougher returns from deployment.

As of Dec. 9 the Toughers are facing fines totaling $11 400.

The Soldier and Sailors Relief Act of 1940 was enacted by Congress to protect active duty military members from collection efforts. The Servicemembers Civil Relief Act of 2003 futher define what protection mililtary members are afforded under the law.

— Maureen N. Maratita editor of the Journal is a member of the board of Perez Acres Housing Association.