Governing a Community Association Through COVID-19: Common Elements
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The first COVID-19 related Emergency Order from Florida’s Department of Business and Professional Regulation (“DBPR”) was issued on March 16, 2020 (“2020-01”). Now, nine (9) months later and there is another spike of COVID-19 infections across the country. As COVID-19 infections spike, board members of Community Associations across the state may want some guidance on what they can do with their common elements. Community Associations frequently have clubhouses that function as restaurants or bars, fitness centers, business centers, pools and spas, athletic facilities and limited common areas that can be rented out for functions such as weddings or large holiday gatherings. So what recent guidance has Florida’s Governor’s Office or the DBPR provided in response to this spike? The answer is that there isn’t much guidance at this time. The most recent Executive Orders from the Governor and Emergency Orders from the DBPR make it clear that a Board has very limited restrictions to what amenities can be operated or offered to the membership. It is nearly business as usual. That being said, if a Community Association Board wanted to limit amenity access, could it do so?
Current State of Executive Orders from the Governor
The two most relevant Executive Orders at this time are Executive Order 2020-244 and Executive Order 2020-276. Executive Order 2020-244 was entered on September 25, 2020 and sets forth an express right to work and operate a business, sets forth and that no local government can restrict indoor capacity of a restaurant to less than fifty percent (50%). Additionally, if a restaurant is limited to anything other than 100% indoor capacity, the government entity must quantify the economic impact of the emergency order and explain why the limitation is necessary. Although this Executive Order doesn’t provide much guidance to Community Associations, it does demonstrate the State’s business as usual approach. Executive Order 2020-276 was issued on November 3, 2020 and merely extends the State of Emergency for another sixty (60) days. Essentially, the Governor has still declared a state of emergency but has also issued an order prohibiting any business from being shuttered by local government or another government entity. Restaurants currently receive special protection and any emergency order limiting indoor capacity is given special scrutiny and must consider the economic impact of limiting capacity and expressly explain why the limitation is necessary.
Current State of Emergency Orders from the DBPR
On March 27, 2020 the DBPR entered Emergency Order 2020-04, which expressly stated that Community Association Boards were entitled to exercise the emergency powers set forth in Fla. Stat. 718.1265(1) (for Condominium Associations) and as set forth in Fla. Stat. 720.316(1). The provisions in the Condominium Act and the Homeowners’ Association Act are almost identical and generally state:
[I]n response to damage caused by an event for which a state of emergency is declared…
(a) Conduct board or membership meetings after notice of the meetings and board decisions is provided in as practicable a manner as possible, including via publication, radio, United States mail, the Internet, public service announcements, conspicuous posting on the association property, or any other means the board deems appropriate under the circumstances.
(b) Cancel and reschedule an association meeting.
(c) Designate assistant officers who are not directors. If the executive officer is incapacitated or unavailable, the assistant officer has the same authority during the state of emergency as the executive officer he or she assists.
(d) Relocate the association’s principal office or designate an alternative principal office.
(e) Enter into agreements with counties and municipalities to assist counties and municipalities with debris removal.
(f) Implement a disaster plan before or immediately following the event for which a state of emergency is declared, which may include, but is not limited to, turning on or shutting off elevators; electricity; water, sewer, or security systems; or air conditioners for association buildings.
(g) Based upon the advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine any portion of the association property unavailable for entry or occupancy by owners or their family members, tenants, guests, agents, or invitees to protect their health, safety, or welfare.
(h) Based upon the advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine whether the association property can be safely inhabited or occupied. However, such determination is not conclusive as to any determination of habitability pursuant to the declaration.
(i) Mitigate further damage, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, including mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the association property.
(j) Notwithstanding a provision to the contrary, and regardless of whether such authority does not specifically appear in the declaration or other recorded governing documents, levy special assessments without a vote of the owners.
(k) Without owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association if operating funds are insufficient. This paragraph does not limit the general authority of the association to borrow money, subject to such restrictions contained in the declaration or other recorded governing documents.
On May 20, 2020, the DBPR entered Emergency Order 2020-06, which expressly stated Emergency Order 2020-04 shall cease to be operational on June 1, 2020. Emergency Order 2020-06 specifically states “with the passage of time, it is apparent that DBPR Emergency Order 2020-04 is no longer necessary in its entirety.”
Can a Community Association Impose COVID-19 Restrictions at this Time?
Like many areas of the law it depends. Its really not clear why the DBPR ever entered Emergency Order 2020-04 or 2020-06. The Governor had already declared a state of emergency and the emergency provisions of Fla. Stat. 718.1265 and Fla. Stat. 720.316(1) were triggered “in response to damage caused by an event for which a state of emergency was declared.” (emphasis added). Perhaps the DBPR wanted to clarify the emergency powers applied even if the Community Association suffered no damage. However, if that was the purpose of the DBPR’s Emergency Orders that purpose would be unconstitutional as a violation of separation of powers. The Legislature is vested with the power to make law and if there was any delegation of power to the DBPR it would only be a delegation to clarify the law through rule implementation. The DBPR has no authority to modify a statute, which is enacted by the Legislature. Fla. Stat. 120.52(8).
Many Community Associations have a significant portion of their members that are at a heightened risk from COVID-19 exposure. Many insurance policies exclude liability for negligent or unnecessary exposure to infectious disease. One of the emergency powers granted to Community Associations during a state of emergency is as follows:
Based upon the advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine any portion of the association property unavailable for entry or occupancy by owners or their family members, tenants, guests, agents, or invitees to protect their health, safety, or welfare.
If a Community Association wished to close a portion of their amenities or wished to temporarily limit use of amenities by guests they should consult with an attorney to advice as to whether the emergency powers statutes apply and if they do apply should obtain an opinion letter from the professional setting forth that the restriction is to protect health, safety or welfare.