For those communities comfortable with reopening, we recommend a measured approach, taking into consideration the CDCs’ ongoing guidelines and protocols. Recently enacted Section 768.38, Florida Statutes, provides corporate immunity against COVID-related claims where there has been a good faith effort to substantially comply with government-issued health standards or guidance. Although the County’s COVID orders were suspended, the CDC’s COVID guidelines and protocols remain in effect. As such, we believe the reopening of amenities and/or lifting of other COVID-related restrictions should, as appropriate and practical, still take into consideration the CDC’s guidelines in order to help minimize potential COVID-related claims. For example, for amenities that are reopened, we recommend reducing seating and capacity limits; maintaining distance between tables; and limiting group sizes.
For those communities that believe it is necessary to keep amenities closed or with limited hours of operation, we believe both homeowners and condominium associations may continue to do so, as the statutory emergency powers remain in effect, and, we believe, will continue for a reasonable time following the end of the State of Emergency. If a community believes it is reasonable and necessary to continue requiring face masks and social distancing in common areas, we recommend the community adopt rules expressly requiring the same. Although an association’s governing documents presumably already prohibit nuisances, we believe specificity for face masks and/or social distancing requirements would bolster an association’s enforcement remedies, such as fines, suspensions and, when necessary, injunctive relief in court.
Also, for those communities seeking to adopt rules that limit or otherwise restrict access to amenities in light of the pandemic, keep in mind that such rules will need to be reasonable. The governing documents will presumably establish that one of the association’s purposes is to provide for the health, safety, and welfare of the members, residents, and guests, so there is a presumed basis for such rulemaking. However, the documents likely also establish certain easement rights afforded to members and their guests, tenants, and invitees for the use and enjoyment of the common areas. Thus, the rules will need to be tailored appropriately to balance the competing interests in attempting to protect the residents and guests while still providing a reasonable level of access.
Regardless of which side an association finds itself in reaction to this continually evolving situation, we believe all communities should prepare accordingly and speak with their legal counsel for advice regarding the unique needs of each community association.
SACHS SAX CAPLAN, P.L.
PETER S. SACHS
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