On May 20, the Florida Department of
Business and Professional Regulation (DBPR) issued Emergency
Order 2020-06, which appears to cancel a majority of the
provisions previously adopted in Emergency Order 2020-04,
issued March 27 in response to the COVID-19 crisis. The DBPR
has taken the position that its prior emergency order, which
among other things, partially recognized statutory emergency
powers in response to the COVID-19 crisis, is no longer
necessary.
The DBPR’s second attempt to address the global pandemic and
at the same time clarify ambiguities for the thousands of
community associations throughout the state, has generated
heated debate among association attorneys and has left
community associations with even more unanswered questions.
Order 2020-06 provides that Sections 1, 2, 3, 4, 5, 6, 7, 8
and 9 of DBPR Emergency Order 2020-04 shall cease to be
operational as of June 1. Simply put, this new order appears
to indicate that the provisions of Fla. Stat. Section
718.1265(1)(a)-(j) for Condominiums, Fla. Stat. Section
719.128(1)(a)-(j) for Cooperatives and Fla. Stat. Section
720.316(1)(a)-(h) for Homeowners Associations are no longer
applicable to the COVID-19 crisis. The above provisions
permitted community associations to, among other things,
conduct board meetings and membership meetings with notice
given as practicable; cancel and reschedule any association
meeting; relocate the association’s principal office or
designate alternative principal offices; implement a
disaster plan; determine any portion of the property
unavailable for entry or occupancy by unit owners, family
members, tenants, guests, agents, or invitees to protect the
health, safety or welfare of such persons; and based upon
advice of emergency management officials or upon the advice
of licensed processionals retained by the board, determine
whether the property can be safely inhabited or occupied.
Additionally, Order 2020-06 appears to reinstate the
requirement that emergency powers be triggered in “response
to damage caused by an event,” raising the question whether
the COVID-19 crisis “caused damage” and can be considered
such an “event” under the statutes.
Further, the division has reinstated the requirements and
deadlines for financial reporting. As a result, for those
associations that placed their annual financial reporting
process on hold, now is the time to take action.
So, What Does This Mean for Florida Community Associations?
While DBPR Emergency Order 2020-06 seemingly attempts to
restore community association operations to pre-COVID
normal, most communities continue to operate far from that
norm, having to adhere to CDC guidelines, and in some cases
s more stringent local orders and ordinances that affect
operations.
Moreover, the DBPR has once again ignored the financial
impact of the COVID-19 crisis, while many associations are
beginning to feel the financial impacts of COVID-19, with
their members among millions of people who are now out of
work.
Even more concerning, however, is the fundamental question
of whether the DBPR overstepped its authority in issuing
Order 2020-06, as the emergency powers are clearly contained
in the applicable statutes and specifically triggered by the
governor’s issuance of an executive order declaring a state
of emergency.
From a practical standpoint and with nearly eight weeks of
COVID-19 crisis management under our belts, many community
associations throughout the state have adapted operations.
While the authority for associations to rely upon the
statutory emergency powers is once again up for debate, most
associations should be able to ensure compliance with all
statutory requirements and obligations, while taking
reasonable and necessary precautions to protect the health,
safety and welfare of its residents.
The text of the state of Florida
Department of Business and Professional Regulation Emergency
Order 2020-06 is below:
WHEREAS, novel coronavirus Disease 2019
(COVID-19) is a severe acute respiratory illness that can
spread among humans through respiratory transmission and
presents with symptoms similar to those of influenza; and
WHEREAS, all counties in Florida have positive cases for
COVID-19, and COVID-19 poses a risk to the entire state of
Florida; and
WHEREAS, the governor issued Executive Order 20-52 on March
9 pursuant to the authority vested in him by Article IV,
Section 1(a) of the Florida Constitution, the State
Emergency Management Act, s. 252.31, Florida Statutes, et
al., as amended, and all other applicable laws, and declared
a state of emergency for the State of Florida; and
WHEREAS, the governor, in Executive Order Number 20-52,
authorized each state agency to suspend the provisions of
any regulatory statute of that agency, if strict compliance
with that statute would in any way prevent, hinder, or delay
necessary action in coping with this emergency; and
WHEREAS, DBPR Emergency Order 2020-04 was issued on March
27, suspending certain statutory provisions relating to
condominium associations, cooperative associations,
homeowners’ associations, timeshare plans, harbor pilots,
and veterinarians; and
WHEREAS, with the passage of time, it is apparent that DBPR
Emergency Order 2020-04 is no longer necessary in its
entirety;
NOW, THEREFORE, I, HALSEY BESHEARS, Secretary of Florida’s
Department of Business and Professional Regulation, pursuant
to the authority granted by Executive Order No. 20-52, find
the timely execution of the mitigation, response, and
recovery aspects of the State’s emergency management plan,
as it relates to COVID-19, is no longer dependent on the
provisions of DBPR Emergency Order 2020-04 in their
entirety. Therefore, I order the following:
Sections 1, 2, 3, 4, 5, 6, 7, 8 and 9 of DBPR Emergency
Order 2020-04 shall cease to be operational as of June 1.
Section 10 of DBPR Emergency Order 2020-04 is extended, and
the assessments of harbor pilots made pursuant to rule
61G14-19.001, Florida Administrative Code, are waived for
May, June and July.
This emergency order shall take effect on the date of its
filing.