By Attorney Richard D. DeBoest
Q: What are your latest recommendations to community associations regarding COVID-19 vaccinations and the vaccination passport? Can an association mandate that in order to use the common facilities, the person must show proof of vaccination? Should we be fully reopening our common facilities and if so, does this expose our association to liability if someone contracts COVID-19 at the facility?
A: Although many community associations have reopened their amenities, some are still wrestling with the issue. One recent development may serve to encourage more communities to open common facilities. On March 29, 2021, Governor DeSantis signed Senate Bill 72 into law, granting liability protection to business entities, including community associations, from lawsuits related to COVID-19 exposure if such entities made a good faith effort to substantially comply with all government issued health standards and guidance. As such, in addition to other precautions, associations reopening their amenities should make a good faith effort to follow all federal, state, and local health guidelines regarding COVID-19.
Given that the vaccine is now being distributed throughout the United States and other parts of the world, the first question becomes one of availability and how to obtain the vaccine. Many community associations in Florida have been successful in securing vaccines for their residents by contacting the Florida Department of Health and setting up private vaccine clinics for their communities. In an effort to limit potential liability, the association’s role should be limited to facilitating the scheduling of these events and should not involve hosting, sponsoring, or otherwise actively assisting with the administration of the events. Associations that intend to host a vaccine clinic on the association’s common areas should consult with their attorney and take additional precautions.
As many Americans have already been vaccinated, the next big question is whether community associations should require proof of vaccination for residents to use the amenities. Although this is a complicated issue that deserves further discussion, the best practice at this time is to monitor the requirements imposed by state and local governments and follow suit. On April 2, 2021, Governor DeSantis signed Executive Order No. 21-81, banning all businesses from requiring a vaccination passport or other documented proof of vaccination to gain access, entry, or service from the business. As such, requiring proof of vaccination is not recommended for two primary reasons: 1. The association is arguably a business and therefore requiring proof of vaccination violates Executive Order 21-81; and 2. Distinguishing between residents that have been vaccinated and those that have not raises potential claims of illegal discrimination under the Fair Housing Act based on religion and handicap status. If a community association makes the decision to reopen the amenities, the amenities should be made available to all residents, regardless of vaccination status.
Q: My condominium board is debating the eight-year continuous service term limit law and whether it runs from the date of the law (July 1, 2018) forward or does service prior to that date also count? I know there was a ruling by the Division of Condominiums that the law was retroactive and that service prior to July 1, 2018 counted in the eight-year calculation. Can you clear this up for me?
N.S., Marco Island
A: No doubt your board is confused by this as we all have been since the law went into effect. At first everyone seemed to more or less agree that the law was prospective only from July 1, 2018 and so the eight-year clock started on that date. The Division of Condominiums verbally indicated that they agreed with this interpretation. Then, the Division issued a written Declaratory Statement opining that the law was retroactive reversing its prior verbal position. Subsequent to the Declaratory Statement, the Division reversed course again and verbally said in future cases it would not follow its Declaratory Statement and would apply the law prospectively from July 1, 2018 meaning the eight years ran from that date forward. Now, as of July 1, 2021 the Condominium Act has been amended to dispositively once and for all provide that the eight-year continuous years of service runs from on or after service beginning as of July 1, 2018. So, no condominium director has to even worry about being term limited out until 2026 and if they read the law carefully, it can be easily avoided by stepping off the board before they complete eight continuous years of service and then return to the board. Keep in mind this law does not affect cooperatives or homeowners associations (HOAs).
Q: Our condominium association would like to consider installing an electric vehicle charging station as a common amenity for any resident to use on a first-come, first-served basis. Can we do this and pay for the installation as a common expense?
A: Yes, this can be done. Initially under the current condominium law, this would be a material alteration of the common elements and would, depending on your governing documents, require a vote of the unit owners to approve the material alteration. However, as of July 1, 2021 a new law goes into effect that will allow you to avoid the need for a unit owner vote. The new law is found in Florida Statutes 718.113(9) which was part of the large omnibus community association law bill recently approved by the Florida Legislature. See Senate Bill 630. The new law provides that the board of an association may make available, install, or operate an electric vehicle charging station or a natural gas fuel station upon the common elements or association property and establish the charges or the manner of payments for the unit owners, residents, or guests who use the electric vehicle charging station or natural gas fuel station. For the purposes of this section, the installation, repair, or maintenance of an electric vehicle charging station or natural gas fuel station under this subsection does not constitute a material alteration or substantial addition to the common elements or association property.
Q: Do amendments to board adopted rules in an HOA have to be recorded in the public records?
A: Presently yes, but as of July 1, 2021 the answer is no. The new law is found in Florida Statutes 720.301(8)(c) which was part of the large omnibus community association law bill recently approved by the Florida Legislature. See Senate Bill 630. The new law provides that board adopted rules and regulations have been removed from the definition of governing documents which means that amendments to the rules no longer need to be recorded in the public records. The governing documents are now only the Declaration, the Articles of Incorporation, and the Bylaws. However, your particular governing documents might require that the rules must be recorded and if so, you would have to follow your governing documents. Also, even if you are not required to record board adopted rules you could do so if the board thought this was a good idea.