Steven R. Braten, Shareholder
Paula S. Marra, Senior Associate 

On Sunday, March 29, 2020, President Donald Trump extended the national shutdown in response to expert warnings that “no state, no metro area, will be spared” with the latest models showing between 100,000 to 200,000 deaths in the United States from COVID-19. Some of our colleagues questioned whether community associations could invoke their emergency powers under Sections 718.1265, 719.128 and 720.317, Florida Statutes, in response to the Coronavirus pandemic. Recognizing that all of these statutes are contingent upon the Governor proclaiming a State of Emergency pursuant to Section 252.36, Florida Statutes, which is what Governor DeSantis did on March 9, 2020, we have been counseling our community association clients from the beginning of this crisis to invoke emergency powers to take steps to protect the health, safety and welfare of their residents.

           As we have stated since the inception of this crisis, community associations should take steps to protect their residents commensurate with the risks posed by the Coronavirus.  For example, the risks posed from an influx of outside traffic to residents in a hi-rise building are greater than the risks posed to a single-family home community.  Therefore, restrictions on visitors and guests must be tailored to the specific threat posed to the community.  However, across community types, high risk common areas, such as clubhouses, fitness rooms, card rooms, restaurants, golf shops, community pools and such other community facilities represent a threat to all residents.  Accordingly, in response to the ongoing threat from COVID-19, communities throughout Florida began to limit, and then close facilities despite resistance from residents.

             For those board members who questioned their decisive actions to protect their communities, we want to report that on Friday, March 27, 2020, the Florida Department of Business and Professional Regulation issued Emergency Order 2020-04, confirming that condominium, homeowners and cooperative associations have emergency powers under Sections 718.1265(1), 718.128(1), and 720.316(1) [For the full text of the Emergency Order use this link Emergency Order 2020-04; and scroll down to the heading “Department Emergency Orders”].  Recognizing that the damage clause of paragraph one of these emergency powers statutes created a degree of uncertainty, the Department stated in its March 27th Emergency Order that “the limitation” within Sections 718.1265(1), 19.128(1), and 720.316(1) “is hereby suspended.”  The Division also clarified that the provisions in these statutes “identifying emergency management officials . . .  include public health officials.”  This Emergency Order provides community associations in Florida reassurance of the legal protection for invoking emergency powers.  

                     As of March 29, 2020, COVID-19 has infected more than 135,000 people and has killed over 2,300 people in the United States alone, causing our nation the ultimate “damage”, which regrettably, will continue to grow in numbers during the weeks to come.  There can be no doubt that when this crisis passes, the Florida Legislature will rewrite Florida’s emergency powers statutes to provide much needed guidance about how to address the questions community association boards, managers and legal practitioners have struggled with.

            For those communities that questioned with closing their community facilities in response to the pandemic, including their pool facilities, Palm Beach County has issued an Amendment to Emergency Order Number 3, finding it “necessary to clarify by way of [said] Amendment that, all public and private parks, public and private golf courses, golf facilities, and community pools within Palm Beach County are closed.”  The pool closure order went into effect March 30, 2020 at 12:01 am.  The amended order also provides that “all private community parks; all parks within public, private and gated communities, community association and condominium association golf courses and parks, homeowners association golf courses, golf clubs and parks; and every other golf course, golf facility and park within unincorporated and incorporated Palm Beach County” are to be closed. For the full text of the Amendment, see Orders under the heading “Palm Beach County Orders”.

             Reason, prudence, and decisiveness in the face of an emergency is the best course of action.  When in doubt, continue to consult your legal and other professionals.