Covid-19 State of Emergency Extended Amid Phase 2 Reopening

By recent order of Governor DeSantis, Florida’s state of emergency due to COVID-19 has been extended to the beginning of November 2020. In part, this means that homeowners’ associations and condominium associations continue to be able to utilize emergency powers pursuant to Fla. Stat. §720.316 and Fla. Stat. §718.1265 respectively. Notably, among other emergency powers, is associations’ emergency power to determine that portions of association property are unavailable for entry, use, or occupancy. As such, this emergency power allows associations to keep facilities closed or to reopen them subject to limitations upon use and/or access.

Furthermore, despite what state and local governments may be permitting in terms of reopening public facilities and businesses, because of associations’ statutory emergency powers and the continuing state of emergency, there is no requirement that associations reopen association facilities at this time. In addition, those associations that choose to reopen association properties may elect to do so in a way that is more restrictive (but not less restrictive) than what is required by applicable government reopening orders.

In terms of current reopening orders, note that Palm Beach County has just entered Phase 2 of reopening after being in Phase 1 since May 11, 2020. Some salient aspects of Phase 2 which are likely to be germane to associations are as follows:

  • CDC social distancing guidelines as well as CDC cleaning and disinfecting guidelines remain in effect.
  • Mandates on wearing facial coverings remain in effect and unchanged by entry into Phase 2.
  • Restaurants and food establishments including clubhouses, banquet halls, and ballrooms may increase indoor service up to 50% seating capacity, bar top meal service may be resumed, and parties of no more than ten people will be permitted provided that separate parties are spaced at least six feet apart from each other.
  • Restaurants and food establishments may be open for dining at all times except between 12:00 a.m. and 5:00 a.m. Take out and delivery services are permitted after dining hours.
  • Spas, acupuncture establishments, massage establishments, gyms, and fitness centers may resume operating at full capacity provided that parties are limited in size to no more than ten people and provided that social distancing is observed.
  • Bars (that are not restaurants), bingo parlors, concert venues, and auditoriums remain closed.

Palm Beach County is also presently targeting October 19, 2020 and November 2, 2020 as dates to further evaluate reopening. However, the county’s reopening situation remains fluid and subject to future developments.

Whether or not associations reopen their facilities commensurate with the ongoing Phase 2 reopening is a matter of discretion to be decided by boards of directors for so long as the state of emergency remains in effect. However, reopening association facilities may be a highly charged and polarizing issue, and communities are encouraged to seek legal advice to ensure that they are complying with applicable governmental orders as well as managing reopening risks in prudent ways.

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