Florida Community Association Legislative Update May 2020
At the time of our last newsletter in February, pre-pandemic, the Florida Legislature was working on several bills that would significantly impact community associations on a wide range of issues. However, as the 2020 legislative session closed amid the emerging coronavirus, most of the bills geared specifically toward community associations failed to receive approval, including House Bill 623, which we addressed in our previous post. Nevertheless, there are three bills of interest that did pass, which will affect community associations and owners alike. Below is a summary of each:
Senate Bill 476 – Law Enforcement Vehicles
Senate Bill 476 has the rare distinction in our modern political climate as being approved unanimously by both the Florida House and Senate. SB 476 creates three new sections of Florida Statutes; 718.129, 719.131, and 720.318, which include similar language to apply to condominiums, cooperatives, and homeowner associations. Each new section provides that associations may not prohibit a law enforcement officer, who is a unit or parcel owner, or the tenant, guests or invitee of an owner, to park his or her assigned law enforcement vehicle in an area where the owner, or the tenant, guest, or invitee of an owner, otherwise has a right to park. These provisions were approved by the Governor and are in effect as new law.
These changes were spurred following media reports of a Clearwater police officer being subject to covenant enforcement by the officer’s homeowners association if the police officer continued to park a marked police cruiser in the driveway instead of the garage. The association’s declaration prohibits owners from parking “commercial and government-issued vehicles” in driveways.
Practically speaking, this will not affect how most community associations operate, as most governing documents reference only “commercial vehicles,” without directly addressing government-issued vehicles. In 2005, Florida’s Attorney General determined that a law enforcement vehicle is not a “commercial vehicle” because a commercial vehicle is used by a business for economic gain, whereas law enforcement services are an integral part of government and are not provided for economic gain.
Accordingly, this change really should only impact communities that include language specifically regulating law enforcement vehicles, rather than commercial vehicles in general. Even then, there is an argument these changes do not apply to some communities as an unconstitutional impairment of existing contracts. Moreover, based upon the language of the statute, it does not appear that the law would prevent associations from preventing law enforcement vehicles where other owners do not otherwise have a right to park. For example, if street parking is prohibited for all owners in your community, you may still have the right to prohibit parking by law enforcement vehicles in those areas, following a review by legal counsel.
Senate Bill 1084 – Emotional Support Animals
Senate Bill 1084 includes significant changes governing requests for emotional support animals. The Governor has not yet signed this bill. If approved, the law would go into effect on July 1, 2020.
As has been the law, landlords and associations are prohibited from denying housing to a person with a disability or a disability-related need who has an animal that is required as support, to the extent required by Fair Housing Laws. However, SB 1084 includes much needed clarity and protections against fraud, which should make it easier for associations and landlords to provide reasonable accommodations to those who genuinely need it, and more easily identify and discourage those who would otherwise look to abuse those protections. The bill also prohibits an association from charging a person with an emotional support animal additional fees. Below are some of the critical aspects of SB 1084:
Emotional Support Animals Don’t Require Training or Registration
SB 1084 defines emotional support animals as “an animal that does not require training to do work, perform tasks, provide assistance, or provide therapeutic emotional support by virtue of its presence which alleviates one or more identified symptoms or effects of a person’s disability.” However, the law also provides that any type of certificate or registration for the emotional support animal is not by itself sufficient information to establish a person has a disability or a disability-related need for an emotional support animal.
Supporting Documentation Provided by a Healthcare Practitioner
The law provides that if a person’s disability is not readily apparent or known, an association may request certain supporting documentation. Associations may also require proof of compliance with state and local licensing and vaccination requirements. Moreover, if a person requests more than one emotional support animal, they must provide supporting information regarding the specific need for each animal.
The law specifies that supporting documentation may include:
- A determination of disability from any federal, state, or local government agency;
- Receipt of disability benefits or services from any federal, state, or local government agency;
- Proof of eligibility for housing assistance or a housing voucher received because of a disability;
- Information from a healthcare practitioner; or
- Information from any other source that the housing provider reasonably determines to be reliable in accordance with the federal Fair Housing Act.
For supporting documentation provided by healthcare practitioners, the practitioners must have personal knowledge of the person’s disability and must be acting within the scope of their practice. Perhaps more importantly, to obtain supporting documentation from out-of-state healthcare practitioners, the practitioners must have provided in-person care or services to the person on at least one occasion. This provision should hopefully curtail some of the suspect online providers from rubber-stamping requests for patients, which has been an ongoing source of abuse.
The law makes it explicit that associations can prohibit an animal if it poses a “direct threat to the safety or health of others or poses a direct threat of physical damage to the property of others which threat cannot be reduced or eliminated by another reasonable accommodation.”
Association Request Policies and Forms
While associations can adopt routine methods for making reasonable accommodation requests, the association may not require persons requesting an emotional support animal to use a specific form or notarized statement, and may not deny a request solely because a person did not follow the association’s policy on making requests. This provision aims to prevent requests from being denied based upon technicalities.
Penalties for Fraudulent Requests
A person who falsifies information or written documentation, or knowingly provides fraudulent information or written documentation, for an emotional support animal or otherwise knowingly and willfully misrepresents himself or herself, through his or her conduct or through a verbal or written notice, as having a disability or disability related need for an emotional support animal, or being otherwise qualified to use an emotional support animal, commits a misdemeanor of the second degree. In addition, within 6 months after a conviction under this section, a person must perform 30 hours of community service for an organization that serves persons with disabilities or for another entity or organization that the court determines is appropriate.
Senate Bill 374 – Housing Discrimination
Senate Bill 374 addresses two different aspects of housing discrimination; one involving discriminatory terms present in recorded documents, and the other revising the conditions under which a victim of housing discrimination may commence a civil action in any appropriate court against a specified respondent. SB 374 has been passed by the Florida House and Senate, but has not yet been approved by the Governor. If approved, the bill would go into effect upon becoming a law.
SB 374 provides that discriminatory restrictions included in any title transactions are unlawful, unenforceable, and declared null and void. Discriminatory restrictions are defined to include those that discriminate based upon race, color, national origin, religion, gender, or physical disability.
Of particular note for community associations, the bill also provides that upon the request of a parcel owner, a discriminatory provision appearing in a community’s covenants and restrictions may be removed from the covenant or restriction by an amendment approved only by a majority vote of the board of directors of the association, notwithstanding any other requirements for approval of an amendment of the covenant or restriction. This process will be helpful for associations that may unfortunately still include such terms, but have been unable to remove them based upon high amendment thresholds.
SB 374 also amends the Florida Fair Housing Act to mirror the Federal Fair Housing Act to allow an aggrieved person alleging housing discrimination under the Florida Fair Housing Act to file a civil action in court, regardless of whether the aggrieved person has exhausted his or her administrative remedies. Accordingly, the aggrieved person may file a civil lawsuit regardless of whether:
- He or she has filed a complaint with the Florida Commission on Human Relations (FCHR);
- The FCHR has resolved a complaint (if the aggrieved person chose to file one); or
- Any particular amount of time has passed since the aggrieved person filed a complaint with the FCHR.
However, the bill does prohibit an aggrieved person from filing a civil action under the Fair Housing Act in two specific instances:
- The claimant has consented to a conciliation agreement obtained by the FCHR (except if the civil action is to enforce the terms of that agreement); or
- If an administrative law judge has commenced a hearing.
From a political and monetary standpoint, the bill addresses one of the two main compliance issues identified last year by the federal government, which could result in the FCHR losing certification and close to $600,000 in annual federal funding. Namely, the Florida Fair Housing Act must be substantially equivalent to the Federal Fair Housing Act. The other main issue involved the performance standards of the FCHR. However, if the Governor does not approve SB 374, the FCHR would almost certainly lose its federal certification and funding.
While the main community association bills amending the Condominium Act and Homeowners Association Act were not approved in this Legislative Session, the changes that were approved and will become law will have a significant impact on the operation and governance of Florida’s community associations.