AMENDMENT TO THE LAW THAT HAS DANGER WRITTEN ALL OVER IT
Eric Glazer, Esq.
Published February 3, 2020
Two weeks ago, I wrote to you about House Bill 623 that is
making its way through The Florida Legislature. Another change
to the law currently included in the bill is the following
(c) Any provision of the declaration, the
association bylaws, or reasonable rules or regulations of the
association which diminish or infringe upon any right protected
under the Fourteenth Amendment to the United States Constitution
or Art. I of the State Constitution is void and unenforceable
without further action of the association. The association may
record a notice in the public records of the county in which the
condominium is located evidencing its intention to not enforce
such provision. The failure of the association to record a
notice in the public record may not be the basis for liability
or evidence of discrimination or a discriminatory intention.
To simplify, the 14th Amendment made The Bill of
Rights (The first ten amendments to the Constitution) applicable
to the states. So this law basically says no provision of your
governing documents can infringe upon the rights you have under
the Bill of Rights. All of you know several of these rights
such as the right to free speech, freedom of assembly, and
freedom of religion.
There is plenty of law out there that says when you move into an
association, you may give up some of the rights you may
ordinarily have in your private home. You do this by agreeing to
be bound by the governing documents. For example, courts have
upheld the rights of Florida associations to prevent the use of
the common elements for religious purposes, allowed associations
to impose reasonable restrictions on speech through time
limitations at meetings, impose restrictions on placement of
political signs on the property or even placement of religious
symbols in excess of certain sizes on your windows and doors.
The adoption of this proposed amendment by The Florida
Legislature may throw all of these restrictions into doubt,
including another one I haven’t mentioned yet. The Second
Amendment is the right to bear arms. Inasmuch as Florida law
allows associations to prohibit alcohol use on the common
elements and prohibit religious ceremonies on the common
elements I always opined that the association had the right to
ban weapons on the common elements via a rule. If this proposed
amendment passes, no way would an association be allowed to ban
guns from the common areas.
I have serious concerns that if this amendment passes,
associations will potentially be embroiled in case after case,
where the association attempted to impose all of the reasonable
restrictions mentioned above, and unit owners taking the
position that the association is prohibited from doing so
because it violates their constitutional rights. Until now, you
couldn’t sue an association for a violation of these rights
inasmuch as the action by the association did not constitute
“state action.” This new statute changes all that if it passes
and will open a Pandora’s box and flood of litigation between
associations and their owners.
If you are a believer that associations are notorious for not
providing their owners with rights guaranteed by the U.S.
Constitution, this new proposed law may not bother you. If on
the other hand you believe that the association should still be
able to impose reasonable restrictions in order for all of us to
live in harmony with each other, this new law should bother
you. A LOT.
HOA & Condo Blog
Eric Glazer graduated from
the University of Miami School of Law in 1992 after
receiving a B.A. from NYU. He has practiced community
association law for more than 2
decades and is the owner of Glazer
and Sachs, P.A. a seven attorney law firm with offices in
Fort Lauderdale and Orlando and satellite offices in Naples,
Fort Myers and Tampa.
Since 2009, Eric has been the host
of Condo Craze and HOAs, a weekly one hour radio show that airs
at noon each Sunday on 850 WFTL.
He is the first attorney in the
State of Florida that designed a course that certifies
condominium residents as eligible to serve on a condominium
Board of Directors and has now certified more than 10,000
Floridians all across the state. He is certified as a Circuit
Court Mediator by The Florida Supreme Court and has mediated
dozens of disputes between associations and unit owners. Eric
also devotes significant time to advancing legislation in the
best interest of Florida community association members.