Implications of Governor’s Newest Executive Order on Florida’s Community Associations

Rembaum’s Association Roundup | Effective May 3, 2021 at 4:06 P.M., Governor DeSantis, by way of Executive Order 21-102, suspended all remaining local government mandates and restrictions based on the COVID-19 State of Emergency.

In short, this Order provides that all local government COVID-19 restrictions and mandates on individuals and businesses are hereby suspended.  However, this Order does NOT address private rules enacted by Florida’s community associations.

Remember that in order for a community association to use the statutory emergency powers, there must be a State of Emergency declared by the Governor. Therefore, since the Governor’s declared State of Emergency remains in effect through June 26, 2021, community association  boards of directors may still rely on the use of the statutory emergency powers. However, please remember that in order for a community association to use the statutory emergency powers there must be a nexus between the power being utilized and the actual conditions taking place at the association. In other words, a community association cannot just exercise the emergency powers  because it is convenient.  There should be a nexus.

Executive Order 21-102 can be viewed by clicking HERE.

Broward Emergency Order 21-01 | Pool Restrictions Lifted & Sanitization Requirements Reduced

Join Dan Tiernan from Campbell Property Management and attorney Michael Bender from Kaye Bender Rembaum to learn about Broward County’s latest Emergency Order 21-01 and its impact on community associations during this brief, 30-minute webinar.
 
Friday, April 23rd, 2021 | 12 Noon
 
This webinar is for Broward County community associations only. If you know someone who will benefit from this, please share.

Vaccination ID’s; To Require or Not to Require | Association Liability Protection | Upcoming Events

Vaccination ID’s: To Require or Not to Require, That Is The Question

Florida’s community association board members are wrestling with many amenity re-opening decisions these days. One such decision is whether or not to open the community clubhouse including the card rooms, bingo, and even off-Broadway like shows. As a part of that decision making process, board members may be considering requiring proof of vaccination as a pre-requisite to such use.

While ultimately a decision within the business judgment of the board, requiring proof of vaccination prior to allowing use of an association amenity is not recommended. Do you remember the ol’ adage, “no good deed goes unpunished?” Well, requiring proof of vaccination from the members prior to allowing use of the clubhouse, no matter how well intended, could likely lead to significant and costly problems for the association who fails to heed the warnings set out in this article.

When acquiring medical information of members, the board’s duty, pursuant to relevant law, is to keep such acquired medical information confidential. Requiring proof of vaccination to use amenities will no doubt lead to a significant breach of that duty.

Another reason not to require proof of vaccination is that doing so will lead to creating two classes of members. The vaccinated members who are allowed to use the amenities and the unvaccinated members who are not allowed to use the amenities. Yet, all members pay for access to use the amenities in proportion to their assessment obligation. Therefore, this practice could expose the association to adverse litigation from the upset unvaccinated members.

If the aforementioned two reasons are not sufficient to dissuade you, then consider this: A member may choose not be vaccinated for religious reasons. In this situation, by requiring proof of vaccination the association will be exposing itself to a claim of religious discrimination.

If the association opens an amenity, then the amenity should be available to all members for use without consideration of vaccination. If that is a concern, then perhaps waiting a short while longer to open the clubhouse or other amenity makes the most sense. Remember, too, that when you do re-open to adhere to CDC protocols as may be appropriate for your community such as mask wearing, social distancing, and sanitizing. As a part of the re-opening procedure, please consult with your association’s attorney regarding the do’s and don’ts.

Community Associations Protected by Limited Liability Law

[As presented by Community Associations Institute Florida Legislative Alliance]

On Monday, March 29 Governor DeSantis signed SB 72 into law granting liability protection to businesses and entities, such as religious institutions and community associations, from lawsuits related to COVID-19 exposure if they made a good faith effort to follow all federal, state, and local public health guidelines.

The protections provided in this bill are important to CAI Florida Legislative Alliance (CAI-FLA). CAI is honored to have been a part of the Florida RESET task force, a coalition of organizations dedicated to reopening Florida safely that assisted in drafting and passing this legislation. In August of 2020, this working group announced their three priority legislative proposals, each of which were included in SB 72 which has been signed into law.

Specifically, the RESET Task Force’s draft legislation authorized limited cause of action for COVID-19 related claims with:

  • a heightened culpability standard: to establish liability, the defendant must have acted with gross negligence or intentional conduct;
  • a heightened evidentiary standard: clear and convincing evidence is required to establish liability, rather than a mere preponderance of the evidence; and
  • a shortened statute of limitations.

Upcoming This Week

April 6 | 9:00am-4:45pm
KBR Legal at the Palm Beach Expo Booth 23

We will also present two CE courses:
10am: Updating Your Government Documents. With Allison L. Hertz, Esq., BCS
2:45pm:
 2021 Legal Update. With Michael S. Bender, Esq., BCS

RSVP HERE

April 7 | 12:00-1:00pm
Association Insurance: Top FAQ’s & Concerns
With Allison L. Hertz, Esq., BCS and Brendan Lynch, EVP of Plastridge Insurance.

RSVP HERE

April 8 | 11:00am-12:30pm
Top 10 Common Mix-ups and Misperceptions of Condominiums and HOAs.
With Allison L. Hertz, Esq., BCS and Shawn G. Brown, Esq., BCS.

RSVP HERE

April 9 | 10:00am-12 Noon
Condominium Board Member Certification
Course # 9630075  |  2 CE credits in IFM or ELE. Fulfills Florida requirement for new condominium board members. With Andrew Black, Esq., BCS.

RSVP HERE

Florida’s 2021 HB 7, SB 72 and SB 630

The following Florida House and Senate Bills were referenced during our February 17, 2021 appearance on KW Property Management & Consulting’s webinar:

House Bill 7 (HB 7) | Civil Liability for Damages Relating to COVID-19; Provides requirements for civil action based on COVID-19-related claim; provides that plaintiff has burden of proof in such action; provides statute of limitations; provides retroactive applicability.

Senate Bill 72 (SB 72) | Civil Liability for Damages Relating to COVID-19; Providing requirements for a civil action based on a COVID-19-related claim; providing that the plaintiff has the burden of proof in such action; providing a statute of limitations; providing severability; providing retroactive applicability, etc.

Senate Bill 630 (SB 630) | Community Associations; Prohibiting insurance policies from providing specified rights of subrogation under certain circumstances; authorizing a condominium association to extinguish discriminatory restrictions; providing requirements for natural gas fuel stations on property governed by condominium associations; authorizing parties to initiate presuit mediation under certain circumstances; revising the allowable uses of certain escrow funds withdrawn by developers, etc.

Governing Documents Amendments in Light of Covid-19

Rembaum’s Association Roundup | Governing Documents 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…

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…  Click for the Complete Article

COVID-19 Update: Your Questions Answered

OUR KBR TEAM OF ATTORNEYS OFFER GUIDANCE TO YOUR MOST PRESSING COVID-19 QUESTIONS

1. If we have a resident who tested positive for Covid-19 should we inform the entire community?

If the positive test has been confirmed, while it is ok to alert the entire community that a member has tested positive for Covid-19, it is definitely NOT ok to identify the infected person by name and/or property address.  It is recommended that you contact Association counsel for assistance in preparing or reviewing the notice to the membership.

2. What do we do if a confirmed, infected person in our community refuses to self-quarantine?  Read the rest…