REMBAUM'S ASSOCIATION ROUNDUP | The Community Association Legal News You Can Use

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Hosting Virtual Meetings via Zoom | What You Need to Know

The most asked question of 2020 is this: Can our association host our board and annual meetings using Zoom or another similar virtual/electronic platform? There is no doubt that technology will always advance faster than legislation. In fact, advances in technology seem to take place in light speed where as advances in legislation seem to travel at the speed of your average turtle.

As to board meetings, §718.112(2)(b)5 of the Condominium Act provides, “A board or committee member’s participation in a meeting via telephone, real-time videoconferencing, or similar real-time electronic or video communication counts toward a quorum, and such member may vote as if physically present. A speaker must be used so that the conversation of such members may be heard by the board or committee members attending in person as well as by any unit owners present at a meeting.” Note that similar provisions are provided for cooperative associations in §719.106(1)(b)5 and in §617.0820 for homeowners’ associations.

As to virtual membership meetings, Chapter 617 Florida Statutes, applicable to all of Florida’s not-for-profit community associations, provides in §617.0721(3) that if authorized by the board of directors, and subject to such guidelines and procedures as the board of directors may adopt, members and proxy holders who are not physically present at a meeting may, by means of remote communication participate in the meeting and be deemed to be present in person and vote at the meeting if the corporation implements reasonable means to verify that each person deemed present and authorized to vote by means of remote communication is a member or proxy holder; and the corporation implements reasonable measures to provide such members or proxy holders with a reasonable opportunity to participate in the meeting and to vote on matters submitted to the members, including an opportunity to communicate and to read or hear the proceedings of the meeting substantially concurrent with the proceedings. If any member or proxy holder votes or takes other action by means of remote communication, a record of that member’s participation in the meeting must be maintained by the corporation in accordance with §617.1601. [emphasis added]

In addition, the Condominium, Homeowners Association, and Cooperative Acts (Chapters 718, 720, and 719, Florida Statutes, respectively), provide that members have a right to speak during board and membership meetings (more on that below). In fact, each of the Acts also provide that board members can even communicate, but not make decisions, via email. Rule 61B23.001(2) of the Florida Administrative Code provides, in relevant part, that “all unit owners have the right to attend and observe all meetings of the board…” With this limited guidance as our backdrop, let’s ask the question slightly differently.

Can our association host our board and annual meetings via Zoom or another electronic platform so long as all members have their opportunity to speak at the relevant times and all other statutory requirements are followed, such as a speakerphone in the designated meeting location for condominium association board meetings? The answer, simply put, is “yes,” you can.

It is extremely important when planning on hosting the meeting through a Zoom-type platform that you think ahead about the implications. The type of vote that will occur at any membership meeting must be carefully considered. For example, what if there is an election and members have not yet opted to vote electronically? Provisions must be made to gather ballots up to the closing of the balloting at the membership meeting and for write-in candidates, too, as applicable (in a homeowners association type setting). Instructions must also be clearly provided to the members letting them know how the votes will be counted and ensuring the membership that they can observe the entire tabulation of the voting process. For example;

     Dear Members, In accordance with s. 720.316, Florida Statutes, in order to protect the health, safety, and welfare of the Association’s members, except for the members who volunteer to assist with the tally of the ballots (along with the management team and the Association’s legal counsel), there will be NO in-person attendance at the annual meeting. Although there will be no in-person attendance, the annual meeting will be broadcast through Zoom (online video conferencing) for those who wish to remotely attend and observe the annual meeting, including the tallying of ballots. You may join the Zoom meeting at the appointed time by using the following link in your web browser: ___________ or through the Zoom application on your smart phone or tablet with Meet- ing ID: __________ and entering the following Password: ___________.

Since we are on the subject of board and membership meetings and we are in “election season,” as it is affectionally referred to, let’s take a quick look at meeting notice requirements, eligibility, and terms for board of directors, vacancies, election disputes, and a members’ right to speak.

BOARD MEETING NOTICE REQUIREMENTS

Pursuant to §718.112(2)(c)1, 719.106(1)(c), and 720.303(2)(c), Florida Statutes, notice of a meeting of the board must be posted in a conspicuous place on the property at least 48 continuous hours preceding the meeting, unless the governing documents of the association require additional notice. However, notice of meetings of the board at which regular or special assessments against unit owners or at which amendment to the rules regarding unit use will be considered must be mailed, delivered, or electronically transmitted to the owners and posted conspicuously on the property not less than 14 days before the meeting. Remember, too, electronic transmission is only permitted if the owner provides prior written consent.

As discussed in more detail below, for annual meetings of the membership where an election will be held, the notice requirements for condominium and cooperative associations differ from the requirements for homeowners associations. However, for other meetings of the members, unless a homeowners association’s bylaws provide differently, the notice requirements are the same. Pursuant to §718.112(2)(d)3 and 719.106(1)(d), Florida Statutes, notice of a meeting of the membership must be given to each owner and posted in a conspicuous place on the property at least 14 days before the meeting. For homeowners associations, pursuant to 720.306(5), Florida Statutes, notice of meetings of the members must be given 14 days prior to the meeting, unless the bylaws provide differently. For meetings of the members where an election will be held, pursuant to §718.112(2)(d)4 and 719.106(1)(d)1, Florida Statutes, the first notice of the annual meeting of the membership must be sent to the members at least 60 days prior to the meeting, and the second notice must be provided at least 14 days to the members and posted conspicuously on the property at least 14 days in advance before the meeting. For homeowners associations’ annual meetings, notice must be provided at least 14 days before the meeting unless the bylaws provide differently pursuant to §720.306(5), Florida Statutes.

ELIGIBILITY AND TERMS FOR BOARD OF DIRECTORS

The eligibility requirements for board members are set out in §718.112(2)(d)2, 719.106(1)(a), and 720.306(9)(b). Pursuant to the foregoing, a person who is delinquent in the payment of any fine, fee, or other monetary obligation to the association is not eligible to be a candidate for the board. Additionally, any person who has been convicted of a felony is not eligible to serve on the board unless the person’s civil rights have been restored for at least five years. With the passage of Amendment 4, voting rights were restored to people convicted of a felony. It is unclear what impact Amendment 4 will have on the restrictions to eligibility for board members.

Additionally, condominium associations should be aware that §718.112(2)(d)2 was amended to provide that a board member may not serve more than eight consecutive years unless approved by two-thirds of all votes cast in an election or if there are not enough eligible candidates to fill vacancies on the board. However, this provision applies prospectively, which means the clock did not start until the law went into effect on July 1, 2018. Additionally, this only prohibits eight consecutive years of service. If a board member has a break in service, then the clock would begin again.

For condominium and cooperative associations with 10 or more units, co-owners of units are not eligible to serve on a condominium board unless they own more than one unit or unless there are not enough eligible candidates. This is not applicable to homeowners associations.

Governing documents may provide that you must be an owner to serve on the board, but generally they cannot establish other eligibility requirements, such as residency requirements.

VACANCIES

In the event of a vacancy on the board, pursuant to §718.112(2)(d)9, 719.106(1)(d)6, and 720.306(9)(c), unless the bylaws provide otherwise, the vacancy may be filled by the affirmative vote of a majority of the remaining directors, even if the remaining directors constitute less than a quorum, or if there is only one director remaining. In the event there is only one director remaining on the board, that director can choose to appoint people to fill all of the vacancies.

ELECTION DISPUTES

Election disputes for condominium, cooperative, and homeowners associations are handled by the Florida Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes (the “DBPR”) through mandatory arbitration in accordance with §718.1255(1), 719.1255, and 720.311(1), Florida Statutes. Pursuant to §718.112(2)(d)4.c, 719.106(1)(d)1.a, and 720.306(9)(a), any challenge to an election must be brought within 60 days after the election results are announced. Additionally, a board member cannot be subject to a recall when there are 60 or fewer days until a scheduled election, or when 60 or fewer days have not elapsed since the election of the board member sought to be recalled.

MEMBER PARTICIPATION

Members have a right to speak at meetings of the membership. Pursuant to §718.112(2)(c) and 719.106(1)(d)4, Florida Statutes, members of condominium and cooperative associations have the right to participate in meetings of the unit owners with reference to all designated agenda items. Pursuant to §720.306(6), members of a homeowners association have the right to speak with reference to all items opened for discussion and all items included on the agenda. In other words, in a homeowners association, members can speak on any matter that was opened for discussion, even if the matter was not listed on the agenda for the meeting. Additionally, §720.306(6), Florida Statutes, provides that a member must be allowed at least three minutes to speak on any item.

Members also have a right to speak at meetings of the board of directors. [Pursuant to §718.112(2) (d)7 and 719.106(1)(c), Florida Statutes, members of condominium and cooperative associations have a right to speak at board meetings with reference to all designated agenda items. Pursuant to §720.303(2)(b), members have a right to speak at a board meeting with reference to all designated items.]

In all instances condominium, cooperative, and homeowners association boards are authorized to adopt reasonable rules governing frequency, duration, and other manner of member comments for the board and membership meetings. To make the member comments more meaningful, consider permitting them after the board fully discusses each item, prior to voting, and prior to moving on to the next item.

It is recommended you consult with your association legal counsel on the adoption of reasonable rules to ensure your virtual/electronic meetings run smoothly while also ensuring that they are in compliance with the association’s governing documents, Florida Statutes, and Florida Administrative Code.

(Reprinted with permission from the January 2021 edition of the Florida Community Association Journal) 

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Association Rules After Expiration of the Governor’s State of Emergency Order for COVID-19

By the time you read this article, the governor’s declared state of emergency as related to the coronavirus may have reached an end. If not, well, hopefully it will soon enough due to significant diminution of the coronavirus. What then? What happens to the rules adopted by an association in an effort to combat the coronavirus? Can an association turn away guests of residents? Can the number of people allowed to use the amenities, such as the pool, be limited? Just how far can the board go in its efforts to create reasonable rules?

The emergency powers set out in §720.316 of the Homeowners’ Association Act, §718.1265 of the Condominium Act, and §719.128 of the Cooperative Act begin essentially the same. They each begin with the following phrase:

To the extent allowed by law and unless specifically prohibited by the declaration or other recorded document [or declaration of condominium, its articles or bylaws or cooperative documents, as the case may be], the articles, or the bylaws of an association, and consistent with the provisions of s. 617.0830, the board of administration, in response to damage caused by an event for which a state of emergency is declared pursuant to s. 252.36 in the locale in which the association [or condominium or cooperative as the case may be]   is located, may, but is not required to, exercise the following powers:…

In addition, they each end essentially the same, too, as follows:

The special powers authorized under subsection (1) shall be limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the unit owners and the unit owners’ family members, tenants, guests, agents, or invitees and shall be reasonably necessary to mitigate further damage and make emergency repairs.

Therefore, the emergency power legislation contemplates use of the emergency powers in response to damage caused by an event for which a state of emergency has been declared by the governor and for a reasonable amount of time after the state of emergency is over, as necessary. But, as related to the coronavirus, can the emergency powers still be relied upon at the conclusion of the governor’s declared state of emergency? It is undisputable that the emergency power legislation was drafted in response to hurricanes, where actual damage to buildings and other property occurred, and not for the epidemic of an unexpected deadly virus. But, at least this ever-important legislation lent its applicability to the coronavirus situation and was relied upon by boards and lawyers alike to allow association board members to approve rules in an effort to contain the coronavirus. In response to the virus, some association boards restricted realtor showings and construction work, limited or even prevented guests, and the list goes on and on. Often these rules were adopted with limited notice to the members, sometimes outside of properly noticed meetings (which, depending on the situation may have been, was permitted at the time pursuant to the statutory emergency powers, which still require providing reasonable notice under the circumstances). The further in time we are from the end of the declared state of emergency, the less the emergency powers legislation can be relied upon…most especially because they were drafted with a different type of emergency in mind.

Therefore, in order to ensure your community’s, by now likely revised and lessened, coronavirus rules and regulations remain valid and enforceable, it is important to review the basics. Board members have a fiduciary duty to their association members. That duty supports board-promulgated rules that promote the health, happiness, and peace of mind of the majority of the members. Thus, rules can be adopted for different reasons. At times, a rule may be necessary under the circumstances. For example, say the local health department issues a special bulletin regarding a significant rise in coronavirus within a very limited geographic region in which an association has membership consisting of aged members. Likely, that association may reasonably adopt more stringent rules than an association located in an area with very few cases.

Clearly, if an association is going to restrict vendor and guest access or the rights of the members to use amenities that they otherwise have a lawful right to use, then the board better be able to create the necessary nexus between the situation at hand and rule at issue.

Rules Must Be Reasonable

In Hidden Harbour Estates v. Norman, 309 So. 2d 180 (Fla 4th DCA 1975), unit owners challenged a board-adopted rule prohibiting the use of alcoholic beverages in certain areas of the common elements of the condominium. The trial court found the rule invalid, holding that rules must have some reasonable relationship to the protection of life, property, or the general welfare of the residents of the condominium to be valid and enforceable. The Fourth District Court of Appeal, however, held that the rule was valid because the rule was reasonable. The Court explained that there is a principle “inherent to the condominium concept” that each unit owner must give up a certain degree of freedom in a condominium in order to promote the health, happiness, and peace of mind of the majority of unit owners. The Court concluded that the test for the validity of a rule is reasonableness. An association is not permitted to adopt arbitrary or capricious rules that do not relate to the health, happiness, and enjoyment of the unit owners. However, if a rule is reasonable, the association is permitted to adopt it.

Rule Validity

In Hidden Harbour Estates v. Basso, 393 So. 2d 637 (Fla 4th DCA 1981), the association sought to enjoin unit owners from maintaining a shallow well on their property. The Fourth District Court of Appeal noted that there are two categories of use restrictions: (i) use restrictions set out in the declaration of condominium and (ii) rules adopted by the board or the refusal of the board to allow a certain use when the board has the authority to grant or deny such use. The Court concluded that use restrictions set out in the declaration are “clothed with a very strong presumption of validity” because unit owners purchase their unit knowing of and accepting the restrictions to be imposed. However, rules adopted by the board do not enjoy the strong presumption of validity and must be “reasonably related to the promotion of the health, happiness, and peace of mind of the unit owners.” In this case, the board articulated three reasons for refusing to allow the unit owners to install a well on their property. However, the Court held that the there was no evidence to support the association’s articulated reasons for denial, and therefore the association failed to demonstrate a reasonable relationship between the denial of the application and the objectives which the association argued the denial would achieve. Because the board’s denial was not reasonable, it was held invalid.

Rules Cannot Contravene Declaration or Rights Inferable Therefrom

In Beachwood Villas Condominium v. Poor, 448 So. 2d 1143 (Fla 4th DCA 1984), unit owners challenged two rules adopted by the board of directors of the association which regulated unit rentals and the occupancy of units by guests during the owner’s absence. The trial court held that the rules were invalid because they exceeded the scope of the board’s authority. However, the Fourth District Court of Appeal reversed the trial court and held that the rules were within the scope of the board’s authority. The Court looked to the decision in Hidden Harbour v. Basso, and the two sources of use restrictions: those set out in the declaration of condominium and those adopted by the board. The Court noted that board-adopted rules are reviewed first by determining whether the board acted within the scope of its authority and second, whether the rule reflects reasoned or arbitrary and capricious decision-making.

The Court determined that a board-adopted rule that does not contravene either an express provision of the declaration or a right reasonably inferable therefrom will be found valid. In other words, if the board has the authority to adopt the rule, and the rule does not conflict with the declaration or any right reasonably inferable from the declaration, the board is acting within the scope of its authority to adopt the rule. In this case, the unit owners did not challenge the reasonableness of the rules, so the Court ended its analysis with the question of the board’s authority to adopt the rule and did not move on to the reasonableness considerations discussed in Hidden Harbor v. Basso. As the rules adopted by the board did not contravene either an express provision of the declaration or any right inferable therefrom, the Court held that the rules were within the scope of the board’s authority, and were, therefore, valid.

Remember, when the board publishes an agenda which provides rules will be considered for adoption, that if the rule governs a member’s use of their property or unit then it requires a 14-day notice to all members. The notice must also be posted conspicuously on the property 14 days in advance of the meeting. Rules affecting the common area and common elements only require the typical 48- hour board meeting notice. Of course, your community’s governing documents may also have requirements regarding rule adoption, and if so, they likely should be adhered to as well. After board adoption the rules need to be sent out to the entire community. In addition, homeowners’ association rules should be recorded in the county’s official records, too.

It is a given that as society progresses to normal, rules that were needed yesterday can become outdated today. Be sure to be in touch with your association’s lawyer regarding the continuation of any previously adopted coronavirus restrictions and any proposed new rules prior to board adoption to help ensure their continued enforceability.

(Reprinted with permission from the December 2020 edition of the Florida Community Association Journal)

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Approval Needed—Material Alterations

Why Condominium Associations Must Obtain Approval Before Work Begins and A Plea To The Florida Legislature For A Remedy

When it comes to material alterations, some might say that homeowner associations have it easy compared to condominium associations. For a homeowners association, because Chapter 720, Florida Statutes is silent on the issue, unless otherwise provided in the governing documents, decisions regarding material alterations are made by the board. But, as to condominium associations, and as their board members should know, §718.113(2), Florida Statutes, requires advance membership approval for material alterations to the common elements and association real property. In this regard, there is no parity between the Condominium Act versus the Homeowners Association Act.

Before explaining further, a reminder of the Florida’s Fourth District Court of Appeal  definition of what constitutes a “material alteration” from the seminal case Sterling Village Condominium, Inc. v. Breitenbach,  251 so.2d 685, 4th DCA (1971) is in order. As explained in Sterling,  “as applied to buildings the term ‘material alteration or addition’ means to palpably or perceptively vary or change the form, shape, elements or specifications of a building from its original design or plan, or existing condition, in such a manner as to appreciably affect or influence its function, use, or appearance.”

Prior to July 1, 2018, §718.113(2)(a), Florida Statutes, provided that no material alteration or substantial addition can be made to the common elements or association real property without the approval in the manner provided for in the declaration, or if the declaration is silent, then by 75 percent of the total voting interests of the association. As adopted by the 2018 Florida legislature, (effective July, 1, 2018), §718.113(2), Florida Statutes was amended to provide that approval of the material alteration or substantial addition must be obtained before the work commences.

The current language of §718.113(2)(a), Florida Statutes, provides as follows:

Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions before the material alterations or substantial additions are commenced. This paragraph is intended to clarify existing law and applies to associations existing on July 1, 2018. [Emphasis added]

Prior to the 2018 amendment, §718.113(2), Florida Statutes, did not expressly provide that the approval must be obtained before the material alteration or substantial addition was commenced. However, in a recent decision by the Third District Court of Appeal, the Court held that approval was required before the material alteration or substantial additions were commenced even before the language of §718.113(2), Florida Statutes, was amended to include the advance approval requirement!

In Bailey v. Shelborne Ocean Beach Hotel Condominium Association, Inc., Nos. 3D17-559, 3D17-01767 (Fla. 3d DCA July 15, 2020), unit owners brought a claim against their association alleging that the association violated §718.113(2), Florida Statutes, by failing to obtain the approval of the membership before commencing a large construction project which, they argued, constituted a material alteration to the common elements. Later, both parties agreed that all but two of the alleged “material alterations” actually constituted necessary maintenance that the association was authorized to commence without a vote of the membership.

The association alleged that the remaining two construction items were also necessary maintenance, which was an allegation the unit owners disputed. The trial court held that the remaining two alleged material alterations were valid notwithstanding whether they were necessary maintenance or material alterations because the association eventually obtained the approval of the membership (presumably after the fact). Therefore, the trial court reasoned it did not need to make a determination as to whether the two items were material alterations since the membership approved them, albeit in a tardy fashion.

On appeal to the Third District Court of Appeal, the unit owners challenged the trial court’s decision arguing that the statute required the association to obtain approval for material alterations before it commenced the work. Therefore, the plaintiff unit owners argued that the membership could not provide their consent and approval posthumously. As the construction project at issue took place between 2010 and 2016, the applicable version of §718.113(2) did not include the express requirement that approval be obtained before material alterations are commenced. However, the Court still held that the portions of a construction project that do not constitute necessary maintenance must be approved prior to commencement.

The court explained that “based on the structure of the statute, the 75 percent approval requirement is a condition necessary to overcome the statute’s clear prohibition, insofar as any of the construction work amounts to material alteration or substantial additions.” However, because the trial court did not rule on whether the two items at issue were material alterations or necessary maintenance, the Court was unable to determine whether a vote of the members was pre-required and remanded the case to the trial court for further proceeding to determine the nature of the two construction items.

Because the Court did not make a final determination whether the two construction items constituted necessary maintenance, the Court did not address the remedy for the association’s failure to obtain the advance approval of the membership. Additionally, the law fails to address the remedy when an association does not obtain membership approval before commencing a project.

In cases of material alterations already completed which required the advance approval of the membership, the present version of §718.113(2), Florida Statutes leaves no room whatsoever for the court to order an association to posthumously acquire the membership vote or put things back the way they were. Rather, the only remedy that appears available to the court would be to restore the common elements to its pre-existing state (or as close as can be accomplished under the circumstances), which explains why a legislative fix to §718.113(2), Florida Statutes, to provide for additional remedy would be helpful.

There is a very important lesson to be gleaned from the Bailey case. If your association is considering a material alteration of any kind, then the association would be wise to attain the required approval before commencing the project to avoid a successful legal challenge. If the association fails to obtain the required approvals before commencement of the project, in the event of a legal challenge, the association may well be required to undo whatever alterations were made to the common elements as Bailey suggests this was the case even before the relevant statute was amended. This can result in significant expense to the association, not to mention having to explain what happened to many irate unit owners.

Remember, prior to commencing any material alteration or substantial addition, be sure to consult your association’s attorney to ensure you comply with the requirements of the Florida law and your association’s governing documents.

(Reprinted with permission from the November 2020 edition of the Florida Community Association Journal.)

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2020 Florida Constitutional Amendments

What You Need To Know Before Voting

When voters go to the polls on November 3, 2020, there will be six constitutional amendment proposals on the ballot. This article contains a brief discussion of the amendments. In order to adopt each amendment, it must be approved by 60% of voters casting a ballot. We take no position on any of the amendments, and simply wish to provide our readers with a summary of each proposed amendment. The ballot title and summary of each amendment, as same will be listed on the ballot, is provided, and a brief explanation follows.

Amendment 1: Citizenship Requirement to Vote in Florida Elections

This amendment provides that only United States Citizens who are at least eighteen years of age, a permanent resident of Florida, and registered to vote, as provided by law, shall be qualified to vote in a Florida election. Because the proposed amendment is not expected to result in any changes to the voter registration process in Florida, it will have no impact on state or local government costs or revenue. Further, it will have no effect on the state’s economy.

Discussion:

Amendment 1 amends the language of Article VI of the Florida Constitution. Currently, Article VI provides that “Every citizen of the United States who is at least eighteen years of age and who is a permanent resident of the state, if registered as provided by law, shall be an elector of the county where registered.” This amendment revises the language of Article VI to provide that “Only a citizen of the United States…” can vote. As currently drafted, the language of Article VI bars non-citizens from voting.

  • Proponents argue that the language change is necessary to clarify who is not permitted to vote, and to stimy any efforts to give voting rights to non-citizens in local elections.
  • Opponents argue that the amendment is unnecessary as the language of Article VI of the Florida Constitution already limits voting to citizens.

Amendment 2: Raising Florida’s Minimum Wage

Raises minimum wage to $10.00 per hour effective September 30th, 2021. Each September 30th thereafter, minimum wage shall increase by $1.00 per hour until the minimum wage reaches $15.00 per hour on September 30th, 2026. From that point forward, future minimum wage increases shall revert to being adjusted annually for inflation starting September 30th, 2027. State and local government costs will increase to comply with the new minimum wage levels. Additional annual wage costs will be approximately $16 million in 2022, increasing to about $540 million in 2027 and thereafter. Government actions to mitigate these costs are unlikely to produce material savings. Other government costs and revenue impacts, both positive and negative, are not quantifiable.

THIS PROPOSED CONSTITUTIONAL AMENDMENT IS ESTIMATED TO HAVE A NET NEGATIVE IMPACT ON THE STATE BUDGET. THIS IMPACT MAY RESULT IN HIGHER TAXES OR A LOSS OF GOVERNMENT SERVICES IN ORDER TO MAINTAIN A BALANCED STATE BUDGET AS REQUIRED BY THE CONSTITUTION.

Discussion:

Amendment 2 would increase Florida’s minimum wage to $15.00 per hour by September 2026. Currently, Florida’s minimum wage is $8.56 per hour. The amendment proposes to increase the minimum wage to $10.00 per hour in September 2021 with an increase of $1.00 per hour each year until the minimum wage becomes $15.00 per hour in September 2026. Thereafter, the minimum wage will be adjusted annually for inflation.

  • Proponents argue that the increased minimum wage will allow minimum wage workers to earn enough to afford basic household necessities, and help to reduce race and gender income inequality. They also point to a potential increase in economic activity by increased household spending.
  • Opponents argue that an increase in labor costs would likely be passed on to the customers which would lead to an increase in the cost of living. They argue that a minimum wage increase would impact state and local governments with increased wage costs of $16 million in 20212 and $540 million in 2027. They point to a 2019 Congressional Budget Office analysis looking at the potential impact of raising the federal minimum wage which predicted a .8% drop in employment and reduced business income.

Amendment 3: All Voters Vote in Primary Elections for State Legislature, Governor, and Cabinet

Allows all registered voters to vote in primaries for state legislature, governor, and cabinet regardless of political party affiliation. All candidates for an office, including party nominated candidates, appear on the same primary ballot. Two highest vote getters advance to general election. If only two candidates qualify, no primary is held and winner is determined in general election. Candidate’s party affiliation may appear on ballot as provided by law. Effective January 1, 2024. It is probable that the proposed amendment will result in additional local government costs to conduct elections in Florida. The Financial Impact Estimating Conference projects that the combined costs across counties will range from $5.2 million to $5.8 million for each of the first three election cycles occurring in even-numbered years after the amendment’s effective date, with the costs for each of the intervening years dropping to less than $450,000. With respect to state costs for oversight, the additional costs for administering elections are expected to be minimal. Further, there are no revenues linked to voting in Florida. Since there is no impact on state costs or revenues, there will be no impact on the state’s budget. While the proposed amendment will result in an increase in local expenditures, this change is expected to be below the threshold that would produce a statewide economic impact.

Discussion:

Currently, Florida is a closed primary state, meaning that voters can only vote in the primary of the party with which they are affiliated. Amendment 3 would replace closed primaries with open primaries for the following elections: Governor, State Cabinet, and Florida Legislature. In an open primary all voters vote for all candidates on a single ballot. The top two vote getters, regardless of party affiliation, would advance to the general election. This change would only apply to the enumerated elections, and would not apply to local or federal races.

  • Proponents argue that open primaries would help increase voter participation by allowing registered voters not affiliated with a major political party to participate in primary elections. They also argue it could help produce more competitive races and attract more moderate candidate to run for state offices.
  • Opponents argue that open primaries could result in two members of a major political party being on the general ballot. Additionally, opponents argue that closed primaries ensure that candidates conform more closely and consistently with positions held by the two major political parties.

Amendment 4: Voter Approval of Constitutional Amendments

Requires all proposed amendments or revisions to the State Constitution to be approved by the voters in two elections, instead of one, in order to take effect. The proposal applies the current thresholds for passage to each of the two elections. It is probable that the proposed amendment will result in additional state and local government costs to conduct elections in Florida. Overall, these costs will vary from election cycle to election cycle depending on the unique circumstances of each ballot and cannot be estimated at this time. The key factors determining cost include the number of amendments appearing for the second time on each ballot and the length of those amendments. Since the maximum state cost is likely less than $1 million per cycle but the impact cannot be discretely quantified, the change to the state’s budget is unknown. Similarly, the economic impact cannot be modelled, although the spending increase is expected to be below the threshold that would produce a statewide economic impact. Because there are no revenues linked to voting in Florida, there will be no impact on government taxes or fees.

THE FINANCIAL IMPACT OF THIS AMENDMENT CANNOT BE DETERMINED DUE TO AMBIGUITIES AND UNCERTAINTIES SURROUNDING THE AMENDMENT’S IMPACT.

Discussion:

Amendment 4 would change the requirements to approve a constitutional amendment. Currently, a constitutional amendment is adopted if it is approved by 60% of the voters casting a ballot. Amendment 4 would require an amendment to be approved by at least 60% of the voters in two consecutive election cycles. In other words, a proposed amendment would have to be approved twice.

  • Proponents argue that requiring double approval would limit “legislating” by constitutional amendment by making it harder to adopt amendments to the Florida Constitution.
  • Opponents argue that it will limit voters’ ability to amend the constitution and to act as a check on the Florida Legislature when it fails to pass laws that are important to citizens.

Amendment 5: Limitations on Homestead Property Tax Assessments; increase portability period to transfer accrued benefit

Proposing an amendment to the State Constitution, effective January 1, 2021, to increase, from 2 years to 3 years, the period of time during which accrued Save-Our-Homes benefits may be transferred from a prior homestead to a new homestead.

Discussion:

Amendment 5 increases the amount of time property owners have to transfer the “Save Our Homes” property tax exemption when they move. Currently, property owners have two years to transfer their tax exemption when they move. Amendment 5 would extend that to three years effective January 1, 2021.

  • Proponents argue that, as the tax year starts on January 1, owners who sell later in the year end up with less time to transfer their tax benefit than owners who sell earlier in the year. They argue that extending the exemption to three years allows more Floridians to take advantage of the transfer.
  • Opponents argue that the amendment would reduce local property taxes, including a reduction of $1.8 million in fiscal year 2021-2022.

Amendment 6: Ad Velorem Tax Discount for Spouses of Certain Deceased Veterans Who Had Permanent, Combat-Related Disabilities

Provides that the homestead property tax discount for certain veterans with permanent combat-related disabilities carries over to such veteran’s surviving spouse who holds legal or beneficial title to, and who permanently resides on, the homestead property, until he or she remarries or sells or otherwise disposes of the property. The discount may be transferred to a new homestead property of the surviving spouse under certain conditions. The amendment takes effect January 1, 2021.

Discussion:

Under current law, honorably discharged, combat disabled veterans who are over 65 are eligible for a homestead property tax discount. However, the discount expires upon the death of the veteran. Amendment 6 would allow the homestead property discount to be transferred to the veteran’s surviving spouse who is on the title and lives in the home.

  • Proponents argue that the amendment would extend additional tax relief to assist surviving spouses who often live on fixed incomes.
  • Opponents argue that the tax discount will lead to a reduction in tax revenue including a reduction in school tax revenue by $1.6 million annually and non-school property tax revenue by $2.4 million annually.

A special Thank You to attorney Olivia Cato of our firm for preparing this article

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Political Events & Political Yard Signs | Prohibitions and Enforcement

Can a Florida community association adopt rules prohibiting use of the clubhouse for political events? Generally speaking, the board can adopt such a rule, but there are statutory exceptions which provide for the right of the members to peaceably assemble and which allow for the invitation of public officers and candidates for public office to speak in common areas. More specifically, §720.304(1), Fla. Stat. (i.e., the Homeowners Association Act), provides the following:

All common areas and recreational facilities serving any homeowners association shall be available to parcel owners in the homeowners association served thereby and their invited guests for the use intended for such common areas and recreational facilities. The entity or entities responsible for the operation of the common areas and recreational facilities may adopt reasonable rules and regulations pertaining to the use of such common areas and recreational facilities. No entity or entities shall unreasonably restrict any parcel owner’s right to peaceably assemble or right to invite public officers or candidates for public office to appear and speak in common areas and recreational facilities.

Similar provisions exist in both the Condominium and Cooperative Acts in §718.123 and §719.109, Fla. Stat., respectively.

With these statutory rights in mind, should an association member invite a candidate for political office to speak, the association must allow use of the clubhouse or other common area for the candidate to address the members. If members peaceably assemble and discuss today’s political events, that, too, seems to be a statutory protected right. However, if a political group requests use of the clubhouse to host an event in support of a candidate or political party, then it likely could be prohibited except that the candidate would still be permitted to speak and every association member would be allowed to attend, even those who may desire to protest.

If a rule adopted by the association prohibits the use of the clubhouse for political events and if legally challenged by an upset member, while it is difficult to predict the outcome, the court will need to balance the reasonableness of the board’s adopted rule as compared against the statutory protection. It should also be kept in mind that, if your association was created prior to the legislation protecting a political candidate’s right to speak, and the declaration does not contain a provision adopting the legislation through “Kaufman” type language (meaning it’s as if the legislation was adopted into the declaration), then such an association has an argument that such substantive legislation does not apply. (These rights came into existence on the following dates: October 1, 1977, for condominiums and cooperatives and April 1, 1992, for homeowners associations.)

Association rules governing and even completely prohibiting political signs are a different matter. Let’s face it, unless you share similar political views, your neighbor’s front yard sign supporting a favorite political candidate may be upsetting. Can a Florida association demand the sign’s removal? Well, not if the association has not yet adopted rules governing signage in the community.

A well-crafted and properly adopted board rule prohibiting all signs, as compared to just prohibiting political signs, is likely enforceable with this caveat. Section 720.304 of the Homeowners Association Act provides that any parcel owner may display a sign of reasonable size provided by a contractor for security services within 10 feet of any entrance to the home. In examining an association’s “no sign” rule, let us first address the argument heard every four years, “This is America! The First Amendment protects the right of all homeowners to display political signs.” Wishing this to be true will not help. In fact, the First Amendment concepts of freedom of speech and freedom of expression certainly apply to government settings. But, where the application of the United States Constitution First Amendment begins and ends as applied to Florida’s community associations is anything but clear. As such, the First Amendment could act as both a shield and a sword.

Community associations are not governmental; though admittedly they govern, they have no nexus to local or federal government. In 1987, the Florida Supreme Court held, in Quail Creek POA v. Hunter, 538 So. 2d 1288 (Fla. 2d DCA 1989), that neither a homeowners association’s recording of its covenants in the public records nor the enforcement of its covenants in state court created a sufficient nexus to evidence “state action” such that the First and Fourteenth Amendment would apply. With that in mind, any homeowner would be hard pressed to argue otherwise. But, should an association adopt a rule prohibiting one type of sign but allowing other types of signs, then notwithstanding the arguments that the First Amendment does not apply to community associations, this creates an argument that the association is regulating the type and manner of speech and thus, might, inadvertently be leaving room for a First Amendment type argument to be used against the association.

Courts have long since held that owners give up certain liberties when living in a community association. In 2002, the Florida Supreme Court held, in Woodside Village v. Jahren, 806 So. 2d 452 (Fla. 2002), that certain individual rights must be compromised when one chooses to live in a condominium association.

With that as our backdrop, any “no-sign” rule should be artfully drafted to help ensure enforceability. There is no margin for error. The dispositive court cases regarding rule enforceability make clear that a sign restriction must be “clear and unambiguous” to be enforceable against an owner. Remember, a basic principal of contract interpretation is that ambiguous terms are held against the drafting party. As a practical matter, in plain English this means that in the event the rule is even slightly confusing, the homeowner will receive the benefit of the doubt. Also, any covenant or rule must be applied fairly to avoid selective enforcement rebuttals; so, if Dorothy the Democrat is told to remove her lawn sign, so, too, must Roger the Republican be similarly told. Remember, too, that as a general rule, courts favor covenants adopted by the membership over rules adopted by the board; meaning, the former serves to increase the association’s chances of prevailing.

That rules prohibiting signs must be artfully drafted was a point made very clear to the homeowners association in Shields v. Andros Isle Property Owners Association, Inc., 872 So. 2d 1003 (Fla. 4th DCA 2004), in which the Fourth District Court of Appeal of Florida decided in favor of the homeowner who displayed a sign in her car window despite the association’s sign prohibition. The association’s rules prohibited the display of signs “on any lot”, except a “for sale” sign of a certain size, and prohibited signs on a vehicle. The Court, using the definition of a “lot” in the association’s declaration, interpreted these rules to mean that no sign, except a “for sale” sign, may be on the land or on the exterior of a vehicle. However, there was no prohibition for signs displayed from within a vehicle. When ambiguity exists, courts will rule in favor of the non-drafting party. In this instance the association is deemed the drafter of the rule, so therefore the ambiguity was held against the association, which worked to the owner’s benefit.

Consider, too, election season is short. By the time a lawsuit for an injunction to enforce the “no-sign” covenant is fully resolved, it might be time to consider the next presidential candidate! Please be sure to consult with your association’s attorney when considering new or modifying existing rules and regulations.

(Reprinted with permission from the October 2020 edition of the Florida Community Association Journal.)

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Association Publication of Deadbeat List & Third-Party Purchaser Assessment Liability

Two New Cases Board Members and Managers Need to Know About

CASE No. 1: On June 12, 2020, the Florida’s Fifth District Court of Appeal (“5th DCA”) entered its opinion in Latheresa Williams, On Behalf Of Herself And All Others Similarly Situated v. Salt Springs Resort Association, Inc., and Bosshardt Property Management, LLC., Case No. 5D18-3913 (Fla. 5th DCA 2020), The holding of this case echoes advice I have all too often provided to board members and managers to NOT publish what is commonly referred to as a “deadbeat list.” This type of list is posted in the community and identifies each debtor’s name and sometimes the assessment balance past due, too. No good ever comes from publication of such a list. In fact, the Florida Consumer Collection Practices Act (the “FCCPA”) forbids it if such publication of the deadbeat list is to harass and/or annoy the debtor.

More specifically, section 559.72, Florida Statutes, provides in relevant part that “[i]n collecting consumer debts, no person shall… [p]ublish or post, threaten to publish or post, or cause to be published or posted before the general public individual names or any list of names of debtors, commonly known as a deadbeat list, for the purpose of enforcing or attempting to enforce collection of consumer debts.”

In this case, the plaintiff was seeking class action status for all others similarly treated. This could lead to tremendous liability should discovery later evidence that the association and/or its management company regularly published deadbeat lists. At trial, the court had granted a motion to dismiss filed by the association based on a prior case, Bryan v. Clayton, also a 5th DCA case dating back to 1977 where the Court held that maintenance assessments were not “debts” for purposes of the FCCPA. In order to re-consider the prior Bryan decision, all of the 5th DCA sitting appellate judges participated in the Williams case, a process legally known as an “En Banc” style of review.

The Court in Williams took note that the FCCPA is designed to protect consumers and does not limit unlawful activities only to “debt collectors,” but rather to “all persons” involved in the collection of a debt. By way of contrast, the Federal Fair Debt Collection Practices Act (FFDCPA) applies only to debt collectors, which excludes the association and arguably its management company, and not to “all persons” involved in the collection of a debt, as in the FCCPA.

Under the prior Bryan holding, a past due assessment obligation was not even considered a “debt” for purposes of the FCCPA and the FFDCPA. In the recent Williams case, the Court went to great lengths to explain that, in fact, an association assessment obligation “is a debt which arose out of an obligation by a consumer out of a money, property, insurance or services transaction which is primarily for personal, family, or household purposes” and is therefore subject to FCCPA.

Thus, the Court remanded the case back to the trial court for further proceedings. While, its unknown how the plaintiff’s attempt for a class action certification will resolve, it is extremely likely that one or more defendants will be found to have violated the FCCPA for having published the “deadbeat list.” The takeaway from the Williams case is to never, ever publish a list of association debtors. This does not at all mean that the board cannot be provided a list of those members delinquent in their assessment obligations. However, it does mean such a list should not be made readily available to the membership by posting or mailing, etc.

CASE No. 2: On May 20, 2020, Florida’s Third District Court of Appeal entered its opinion in Old Cutler Lakes by the Bay Community Association, Inc. v. SRP SUB, LLC, Case No. 3D19-528 (Fla. 3d DCA 2020) regarding the liability of a third-party purchaser at a mortgage foreclosure sale for assessments that came due prior to the third-party acquiring title to the property. The Court’s holding in this case is in line with its prior holding in the case of Beacon Hill Homeowners Association, Inc. v. Colfin Ah-Florida 7, LLC, 221 So. 3d 710 (Fla. 3d DCA 2017), which based its decision on the landmark case decided by Florida’s Fourth District Court of Appeal in Pudlit 2 Joint Venture, LLP v. Westwood Gardens Homeowners Association, Inc., 169 So.3d 145 (Fla. 4th DCA 2015).

In the Old Cutler Lakes case, SRP SUB, LLC (“SRP”) was the successful bidder at a foreclosure sale on a first mortgage held by Wells Fargo. After obtaining title by a certificate of title, SRP filed an action for declaratory relief seeking a determination as to its liability for assessments that accrued prior to the issuance of the certificate of title. In relevant part, the Declaration of Covenant and Restrictions of Old Cutler Lakes by the Bay (“Declaration”) provided the following:

The sale or transfer of any Lot pursuant to the foreclosure or any proceeding in lieu thereof of a first mortgage meeting the above qualifications, shall extinguish the lien of such assessments as to payments which became due prior to such sale or transfer.

This language is similar to the language contained in the declarations in the Beacon Hill and Pudlit 2 cases. In these cases, the courts applied a constitutional principal prohibiting the impairment of contracts in deciding that the statutory safe harbor did not control over the provisions of the declarations where the statute did not require such application and the declarations did not contain “Kaufman” language, which has the effect of making amendments to the Florida Statutes automatically applicable to a declaration as they are “amended from time to time.” As the provisions of the declarations expressly created rights for third-party purchasers, the third-party purchasers are “intended third-party beneficiaries” to such provisions which rights cannot be impaired pursuant to the constitutional principal prohibiting the impairment of contracts. In following the holdings of the Beacon Hill and Pudlit 2 cases, SRP was found not liable for any of the past due assessments that accrued prior to the issuance of the certificate of title. Thus, as with many declarations which have not been amended since their creation by the community’s developer, these, as yet to be amended, declarations may provide for a complete wipe out of all assessments that accrued prior to the transfer of title as a result of a mortgage foreclosure action or by deed in lieu of foreclosure.

The takeaway from the cases discussed above emphasizes the importance of reviewing and updating the association’s declaration, with the guidance of your association’s legal counsel, to ensure that it provides for necessary and available protections for the association and its members, including the use of “Kaufman” language, if appropriate to collect as much overdue assessment revenue as possible.

(Reprinted with permission from the August 2020 edition of the Florida Community Association Journal)

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Governing Document Amendments In Light Of COVID-19

Making Lemonade Out Of Lemons

As a result of the unexpected COVID-19 crisis and its ramifications on Florida’s community associations, there are lessons that can be learned. Early on, an unexpected issue many community associations faced was whether the board could rely on the emergency powers set out in the Florida Statutes to help protect both residents and property alike during this time of uncertainty (the “emergency power legislation”). The Condominium, Cooperative, and Homeowners’ Association Acts each provide that the board of directors is granted certain emergency powers in response to damage caused by an event for which a state of emergency is declared by the Governor. While local governments at the city and county level may similarly declare a state of emergency, the emergency powers only spring into existence upon the Governor’s issuance of an executive order declaring a state of emergency in response damage caused by event.

These emergency powers include, just to name a few, the ability to cancel and reschedule meetings, conduct such meetings with as much notice as may be practicable, levy assessments, restrict access to the property and so much more.  More specifically, Sections 718.1265 as to condominiums, 719.128 as to cooperatives, and 720.316 as to homeowners’ associations, Florida Statutes, each provide enumerated emergency  powers available to the board of directors that may be exercised “in response to damage caused by an event for which a state of emergency is declared…”. However, in light of COVID-19 pandemic the interpretation of the phrase “in response to damage caused by an event” created questions and confusion to both laymen and lawyers alike.

At issue was whether the emergency power legislation only applies to situations where there is actual property damage and/or as a result of a hurricane damage. Even if not necessarily intended for COVID-19 type situations,  to many lawyers, including this author, there was no question that the emergency powers could be utilized by board members of Florida’s community associations in response to the instant pandemic. Nevertheless, others questioned whether the emergency power legislation should apply since it was initially drafted in response to hurricane type events, and not a medical event such as the COVID-19 pandemic.

By way of background, the emergency power legislation was drafted in response to the series of hurricanes that hit Florida in 2004, however, it took the Florida Legislature approximately four years to pass them into law. A plain reading of the emergency power legislation even demonstrates that these statutes were drafted with hurricane type damage in mind, and not other disasters, such as global pandemics. But, that does not mean they cannot be applied to other situations.  In fact,  on March 27, 2020, the Florida Department of Business and Professional Regulation Division of Condominiums, Timeshares and Mobile Homes (the “Division”) issued an unexpected order that provided that the phrase “response to damage caused by an event” should not be considered when reading the emergency powers legislation. Then on May 20, 2020, the Division entered a second order explaining that its prior order would expire on June 1, 2020 which is slightly more than a month before the Governor’s state of emergency is set to expire on July 7, 2020. Without regard to whether the Division had the necessary authority to issue such orders in the first place, the result of its second order has attorneys asking, once again, does the emergency power legislation apply? While a great many lawyers experienced in the body of community association law believe so, that does not mean that a court would agree upon legal challenge. Candidly, it would be surprising if the court did not agree, but one never knows with certainty how a court will ultimately rule, most especially on issues of first impression, for which this certainly qualifies.

There is already legislative chatter about the need to revise the emergency power legislation to make it more adaptable to the different types of disasters that can occur. But, community association boards should be able to rely, right now, on the emergency powers in any situation where the Governor has declared a state of emergency where health of the members can be at issue. Even if the Florida legislature does amend the emergency powers to make it patently clear that the board may exercise its statutory  emergency powers during a declared state of emergency for a pandemic, such an amendment will take time and that could mean anything but a fast fix. So, what is an association to do to prepare for the next unanticipated state of emergency?

Well, at least in this instance it is quite likely that your association can act much more quickly to amend the community’s declaration or bylaws, than the Florida legislature can to amend the Florida Statutes.  With that in mind, the board can sponsor and the association membership can adopt an amendment to the declaration or bylaws that clarifies that the emergency powers set out in the Florida Statutes (with specific reference) apply to all states of emergency declared by the Governor to the extent the safety and welfare of the members and/or the property is at issue. In addition, or as an alternative, specific emergency powers can be drafted in the declaration or bylaws, too.

A few suggestions for consideration include:

  • During any emergency the Board may hold meetings with notice given only to those Directors with whom it is practicable to communicate, and the notice may be given in any practicable manner.  The Director, or Directors, in attendance at such a meeting shall constitute a quorum.
  • The Board may cancel, reschedule and/or postpone Board and member meetings, including the annual meeting, if necessary to protect the health and welfare of the members.
  • Corporate action taken in good faith during an emergency under this section to further the ordinary affairs of the association shall bind the Association; and shall have the rebuttable presumption of being reasonable and necessary.
  • The Board may use reserve funds to meet Association needs and may use reserve funds as collateral for Association loans.  The Board may adopt emergency assessments with such notice deemed practicable by the Board.
  • The Board may adopt emergency Rules and Regulations governing the use and occupancy of the Units, Common Elements, Limited Common Elements, and Association Property, with notice given only to those Directors with whom it is practicable to communicate.
  • Any Officer, Director, or employee of the Association acting with a reasonable belief that his actions are lawful in accordance with these emergency Bylaws shall incur no liability for doing so, except in the case of willful misconduct.
  • The Board shall act to keep all members informed of all Board actions taken pursuant to these emergency powers by U.S. Mail, closed circuit tv, social media, or email, etc. as may be practicable under the circumstances.

If your association is interested in adopting such an amendment to your association’s governing documents, please be certain to seek out competent legal counsel that has the requisite expertise in the area of community association law.

(Reprinted with permission from the July 2020 edition of the Florida Community Association Journal and as written by attorney Jeffrey Rembaum)

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State of Emergency Extended for 60 Days

To see the Order in its entirety click HERE

If the link does not work for your browser, then copy and paste the following into your browser: https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-166.pdf

A copy of the relevant text from the Order follows:

STATE OF FLORIDA OFFICE OF THE GOVERNOR

EXECUTIVE ORDER NUMBER 20-166 (EmergencyManagement-Extension of Executive Order 20-52-COVID-19)

WHEREAS, on March 9, 2020, I issued Executive Order 20-52, declaring a state of emergency for the entire state due to COVID-19; and

WHEREAS, on March 25, 2020, President Donald J. Trump approved my request and declared a Major Disaster due to COVID-19 in Florida; and

WHEREAS, on June 3, 2020, I issued Executive Order 20-139, implementing Phase 2 of my Safe. Smart. Step-by-Step. Plan for Florida’s Recovery; and

WHEREAS, I, as Governor of Florida, am committed to providing all available resources and assisting all Floridians and our local communities with their efforts; and

WHEREAS, no state of emergency declared pursuant to the Florida Emergency Management Act may continue for more than 60 days unless renewed by the Governor; and

WHEREAS, the impact of COVID-19 poses a continuing threat to the health, safety and welfare of the State of Florida and its residents.

NOW, THEREFORE, I, RON DESANTIS, as Governor of Florida, by virtue of the authority vested in me by Article IV, Section l(a) of the Florida Constitution and by the Florida Emergency Management Act, as amended, and all other applicable laws, promulgate the following Executive Order, to take immediate effect:

Section I. The state of emergency declared in Executive Order 20-52, as extended by Executive Order 20-114, will be extended for 60 days following the issuance of this order for the entire State of Florida.

Section 2. To the extent Executive Order 20-139, Phase 2: Safe. Smart. Step-by-Step. Plan for Florida’s Recovery, amended or extended any executive order related to COVID-19, the referenced executive orders shall remain in effect, as modified.

Section 3. All actions taken by the Director of the Division of Emergency Management as the State Coordinating Officer with respect to this emergency before the issuance of this Executive Order are ratified, and he is directed to continue to execute the State’s Comprehensive Emergency Management Plan and other response, recovery, and mitigation plans necessary to cope with the emergency.

Section 4. Except as amended herein, Executive Order 20-52, extended by Executive Order 20-114, is ratified and reaffirmed.

IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the Great Seal of the State of Florida to be affixed, at Tallahassee, this 7th day of July, 2020.

RON DESANTIS, GOVERNOR

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Facial Covering Requirements County by County & A Hand Sanitizer Recall

Below you will find face covering requirements for Palm Beach, Broward, Miami-Dade, Hillsborough, Pinellas, Pasco and Manatee Counties. In addition, the cities of Hallandale and Aventura are discussed.

Where appropriate, face covering requirements for those living in condominiums and homeowners’ associations are discussed as well.

A recall was issued for a certain manufacture of hand sanitizer products which is presented immediately below the face covering information.

PALM BEACH COUNTY

Palm Beach County Order No. 2020-012 provides that effective June 25, 2020, facial coverings are required to be worn in public.  Specifically, facial coverings are required to be worn in:

i) Businesses and establishments of any type, including, without limitation, restaurants, retail stores, grocery stores, gyms, indoor recreational facilities and vehicles for hire,

ii) Public places, including outdoor areas that are open and regularly accessible, and outdoor common areas within private communities, where social distancing is not possible or not being practiced,

iii) Palm Tran transit services, and

iv) County and municipal governmental facilities.

Facial coverings are defined under the Palm Beach County Order as any covering which snugly covers the nose and mouth, whether store bought or homemade, mask or clothing covering, including, but not limited to, a scarf, bandana, handkerchief, or other similar cloth covering and which is secured in place. The Order is clear that facial coverings are required to be worn in outdoor common areas within private communities accessible to more than one housing unit where social distancing cannot be accomplished or is not being practiced.

One must also wear a facial covering while working in or visiting businesses and establishments, including indoor recreational facilities.

Businesses and establishments are further required to ensure compliance with the Order and establish a process for verification of compliance upon customer entry into the establishment, and to conspicuously post a specific sign in three languages (CLICK HERE TO LINK-http://discover.pbcgov.org/pdf/covid19/Retail-Mask-Poster.pdf) indicating that persons must wear facial coverings and maintain social distancing.

The Order does not specifically identify indoor common elements or common areas of condominium and homeowners’ associations as businesses or establishments where facial coverings must be worn. However, due to the fact that any type of business or establishment must comply and indoor recreational facilities are specifically listed as establishments in the Order, we believe that the Order likely applies to indoor common element and common area facilities.  Therefore, we recommend that you treat your indoor facilities as establishments under the Order until further orders or guidance is provided by the County.  This means that associations should monitor and require compliance with facial covering requirements, particularly in indoor recreational facilities, and conspicuously post the designated sign required by the Order.

There are exceptions to the facial covering requirements for certain individuals and in certain situations where they are not feasible, including, but not limited to, by children under two (2), by persons who have medical conditions such as asthma or COPD, and while consuming food or beverages.  However, the exceptions are limited and should be implemented in accordance with the Order so as not to cause the spread of the virus.  Finally, compliance is serious as the county has now indicated that fines and penalties may be issued for businesses that do not comply. Whether this includes associations is to be determined.

BROWARD COUNTY

Generally, facial coverings must be worn anytime you obtain a good or service from any establishment, including entering, exiting, and otherwise moving around within the establishment (and must be worn by persons working in those establishments during in-person interactions).

The covering should cover the nose and mouth, and comply with the CDC recommendations on the use and sanitation of such coverings. There are certain limited exemptions, including, without limitation, children under the age of two or children of any age while in the custody of licensed childcare facilities, persons with medical conditions, or during the time-period when you are receiving a good/service that precludes wearing a facial covering (e.g., eating, drinking, receiving a facial grooming).

Violations are subject to potential civil penalties (fines) and/or criminal enforcement (2nd degree misdemeanor).  Suspected violations can be reported to local municipal code enforcement.  The Broward County Order does not specifically require facial coverings within private residential communities (condos/HOAs). Please note, however, that cities may have stricter requirements than the county, so you should confirm with your city accordingly.

Any questions concerning the county requirements can be directed to the County COVID19 Hotline: ‪(954) 357-9500.

The relevant FAQ from the county, and the three (3) Orders are below:

CITY OF HALLANDALE

Facial coverings are required within the common areas of all buildings with multiple residents per Emergency Order HB20-12.

CITY OF HOLLYWOOD

All persons beyond legal boundary of residential property are required to wear facial coverings consistent with CDC guidelines as per Emergency Order 2020-06.

MIAMI-DADE COUNTY

Miami-Dade County issued Emergency Order 20-20 on April 9, 2020 (“Order 20-20”) which requires that all persons working in or visiting grocery stores, restaurants, pharmacies, construction sites, public transit vehicles, vehicles for hire, and locations where social distancing measures are not possible to wear facial coverings. In other words, face masks are required where social distancing is not possible. The Order defines a facial covering as “any covering which snugly covers the face and mouth, whether store bought or homemade, and which is secured with ties or ear loops.”

On May 15, 2020, Miami-Dade County issued Emergency Order 23-20 (“Order 23-20”) further providing that anyone “working in or visiting an establishment, including but not limited to airports, seaports, and mass transit facilities and vehicles” must wear a facial covering as described in Order 20-20. However, Order 23-20 provides an exemption for children under the age of two years, persons who have trouble breathing, where federal or state safety regulations prohibit the wearing of facial coverings, and for persons engaged in strenuous physical activity.

On May 27, 2020, Order 23-20 was amended to provide an additional exemption to the facial covering requirement “while persons are eating or drinking.” Additionally, Order 23-20 adopts The New Normal; A Guide for Residents and Commercial Establishments (the “New Normal Guidelines”) which includes industry specific protocols for the reopening of retail and commercial establishments, including general reopening guidelines that provide that facial coverings must be worn inside businesses and commercial establishments or wherever social distancing is not possible.

On June 22, 2020, Mayor Carlos A. Gimenez released a statement regarding the importance of wearing masks and social distancing. He reiterated that masks are required indoors at business establishments and outdoors when people cannot practice social distancing to remain at least six (6) feet apart. In his statement, Mayor Gimenez acknowledged the stricter rules issued by some municipalities in Miami-Dade County, including Miami, North Miami Beach, Aventura, Hialeah, and Miami Gardens.

CITY OF AVENTURA

As pertains to community associations, the City Manager of Aventura issued Emergency Order Number 12 (“Order 12”) which provides additional mandates requiring the use of facial coverings in the interior “Common Areas” of commercial buildings and residential condominium and cooperative buildings. Order 12 provides that common areas include lobby/reception areas, hallways, elevators, mailrooms, clubhouse/meeting rooms, and stair wells. That means that you are required to wear a mask in any interior common areas of condominium or cooperative buildings in the City of Aventura. It is important to note that Order 12 provides that property managers/building managers are required to enforce the facial covering requirement.

HILLSBOROUGH COUNTY

Order 2020-27 went into effect on 5pm June 24, 2020.  The order does not specifically apply to community associations as they are not a “business” under the order. Face coverings must be worn inside all indoor establishments. Businesses are required to enforce the mask order and can be charged with a second-degree misdemeanor if they don’t, a penalty of up to 60-days in jail and/or six months’ probation and a $500 fine.  The exception does not apply to children under two, persons with pre-existing medical conditions that would be worsened by a mask, hearing-impaired persons, those working in a profession that would be unable to perform their duties with a mask such as public safety, exercising, eating and drinking, or those already observing federal social distancing guidelines (the 6-foot rule).

Tampa is the only exception in Hillsborough where the mask rule would apply to community associations.  if you are outside your home, you must wear a face covering and if no face covering,  up to a $500 citation could be issued.  This would apply to community associations whenever a resident is outside of their residence.

PINELLAS COUNTY

Order 20-14 went into effect on 5pm June 24, 2020. Face coverings must be worn in all indoor public places in Pinellas County.  While not specifically drafted to apply to community associations, the definition of indoor public place would cover community associations when the residents can access the facility.  The only exceptions applicable to community associations are if less than 10 people are in the facility and they are practicing social distancing.  Parties not wearing a mask can receive a civil citation of $100 for a first offense, $250 for a second and $500 for a third. Additional repeat violations may result in a misdemeanor arrest.  The exceptions mirror those of Hillsborough County and Pinellas’s enforcement cannot conflict with the Americans with Disabilities Act.  The Order does not apply to government entities or hospitals or persons under the age of 18.

PASCO COUNTY

Order went into effect ‪5pm on June 25, 2020.  Face coverings must be worn inside all businesses, government offices, and schools.  The definition of businesses is nebulous enough to ensnare community associations under the “providing services to the public” standard.  If someone does not wear a mask in the aforementioned places, they will not be able to enter the business, or will be removed once inside. Individual business owners are required to enforce the ordinance or may face a fine up to $250. The exceptions mirrors Hillsborough County and Pasco’s enforcement cannot conflict with the Americans with Disabilities Act.  It is suggested you speak with your community association’s attorney due to the lack of specificity in Pasco County’s Order to determine if the Order may apply to your community association.

MANATEE COUNTY

No mask requirements.

HAND SANITIZER RECALL

The Food and Drug Administration issued a warning on nine alcohol-based hand sanitizers manufactured by Eskbiochem SA de CV in Mexico because  it contains wood methanol, a toxic substance.  It can result in death if ingested or if  absorbed through the skin.

“Consumers who have been exposed to hand sanitizer containing methanol should seek immediate treatment, which is critical for potential reversal of toxic effects of methanol poisoning,” the FDA wrote on June 19.”

Following is list of the hand sanitizers manufactured by Eskbiochem:

  • All-Clean Hand Sanitizer (NDC: 74589-002-01)
  • Esk Biochem Hand Sanitizer (NDC: 74589-007-01)
  • CleanCare NoGerm Advanced Hand Sanitizer 75% Alcohol (NDC: 74589-008-04)
  • The Good Gel Antibacterial Gel Hand Sanitizer (NDC: 74589-010-10)
  • CleanCare NoGerm Advanced Hand Sanitizer 80% Alcohol (NDC: 74589-005-03)
  • CleanCare NoGerm Advanced Hand Sanitizer 75% Alcohol (NDC: 74589-009-01)
  • CleanCare NoGerm Advanced Hand Sanitizer 80% Alcohol (NDC: 74589-003-01)
  • Saniderm Advanced Hand Sanitizer (NDC: 74589-001-01)
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Stay Ahead of the Curve: Lessons in Technology Learned from Covid-19

The statutory emergency powers granted to community associations as a result of the Covid-19 State of Emergency proved to be a valuable resource for the orderly operations of Florida’s community associations. Many associations had to make significant changes to how they conducted the business of their association. For example, holding board meetings via “Zoom” and “GotoWebinar” became invaluable. But, when the State of Emergency is over can annual meetings and board meetings continue to take place on the internet? Sure they can, subject to the important considerations explained below. In addition, what other technologies can be utilized by the board?

In fact, at the present time there are three statutory grants of technology that an association can utilize to make conducting the business of the association easier on a regular basis. They include, holding meetings electronically, voting electronically, and using email as an official means of communication to the members rather than the U.S. Postal Service. Electronic board meetings allow the board to continue conducting the business of the association without putting themselves or others in harm’s way. But even more than that, by attending electronically think of all of the gas that is saved since no one has to drive to the meeting. More than that, think of the extra time spent not driving or walking to the meeting and how it could be used as family quality time or just to relax.

However, if the board chooses to use video conferencing, it is important to remember that the board must comply with the statutory provisions regarding board meetings. The members must receive notice of the meeting pursuant to the bylaws of the association, and in any event, at least 48 hours in advance of the meeting. Additionally, condominium association members must have the right to speak to all designated agenda items and HOA members also get the additional right to speak on any item discussed by the board (this is because from a strict statutory interpretation condominium association boards are only supposed to address what is set out on the agenda, while such restriction does not apply to HOA boards). Remember, there is no exception to the meeting notice requirements and the need to provide opportunity for member comment. Therefore, any video conferencing software the board utilizes must allow members to virtually attend the meeting and have the opportunity to speak.

The second technology that associations can utilize to make life easier is electronic voting. Florida law allows condominiums, homeowners associations, and cooperatives to conduct elections and other owner votes electronically. When an association board adopts electronic voting, each member of the association must opt in, in writing, and can then vote safely from the comfort of their own home. Imagine all of the time saved by punching a computer button to get the tally, rather than counting by hand, in some instances over 1,000 votes!

To adopt electronic voting, the Board must first adopt a resolution authorizing an online voting system. The board resolution must provide that members will receive notice of the opportunity to vote online and must establish reasonable procedures and deadlines for members to consent, in writing, to online voting, and procedures for members to opt out of online voting. Once the board has approved electronic voting, the board must select an online voting system that complies with the requirements of Florida law. The online voting system must be able to do the following: (1) authenticate the owner’s identity, (2) authenticate the validity of each electronic vote to ensure that the vote is not changed during transmission, (3) transmit a receipt to each owner who casts an electronic vote, (4) be able to separate any authentication or identifying information from the ballot when voting must be done by secret ballot, and (5) be able to store and keep electronic votes accessible for recount, inspection, and review purposes.

Please take note that the board cannot force owners to vote electronically. Thus, a necessary step is to obtain each member’s written consent to participate in electronic voting. If an owner does not consent or opts out of electronic voting, then the board must allow that owner to paper vote.

The third technology an association can utilize which saves money, paper and time, is using electronic notices for official association communications. In other words, give up postage stamps in favor of using e-mail. Generally, associations are required to send official notices via mail or hand delivery. However, the association may choose to send notice via e-mail but only if an owner has provided their written consent to receive their notices electronically.

E-mails used for official association communications can only be sent to those owners who consent, in writing, to receive their official notices by electronic transmission. The written consent must specifically authorize the association to transmit notice electronically. An owner who has consented to electronic notice may opt out at any time. The association must retain a roster of the e-mail addresses and the written consents of owners as an official record of the association. The member is responsible to ensure the association’s emails are not blocked or categorized as spam. Failure to receive an email due to a member’s inability to receive the email will not be a valid reason for objecting. Budget adoption notices, annual meeting notices, election notices, board meeting notices and so much more can be provided via email.

Over the last several months, many associations have had to learn how to utilize technology to conduct the business of their association during the Covid-19 pandemic. Some have done so correctly and likely others have not. Thus, in utilizing any of the technology discussed in this article, an important step is to consult with your association’s attorney to ensure proper compliance with all the statutory requirements. Let us also turn a negative into a positive by continuing to use technology to assist the association with smooth operation. Who knows, perhaps one day, there will be a way for members to virtually enjoy the amenities, too. Until then, you’ll find me at the pool deck.

(Reprinted with permission from the June 2020 edition of the Florida Community Association Journal and as written by attorney Jeffrey Rembaum)

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Kaye Bender Rembaum