Article Courtesy of  The Sun Sentinel

By Edward Hammel, Steven Rappaport and Daniel Weber

Published June 22 , 2023

As you may have heard, Gov. Ron DeSantis signed House Bill 543 into law, which eliminates the requirement that an individual obtain a permit to carry a concealed firearm in Florida. Beginning July 1, 2023, permitless concealed carry for lawfully owned weapons will become legal. As a consequence, many of our community association clients have called to ask how this law affects them.

In our opinion, the answer is, it really doesn’t affect community associations. Associations and clubs are generally free to regulate the use of their private property and can, therefore, regulate the keeping and use of firearms on common property.

The new state law allows individuals, as of July 1, to carry a concealed firearm without a permit, except in certain locations, such as government buildings, schools and other restricted areas. However, community associations (both HOAs and Condominiums) do have some ability to regulate firearms on their property; the extent of their authority depends on various factors.

First, it’s important to note that Florida law allows property owners to regulate or prohibit firearms on their private property. Therefore, a community association, whether it be a homeowners association, which owns or controls the common areas, or a condominium association, which manages the common elements for the unit owners, may generally ban firearms on its private property, such as clubhouses, community centers and other common areas.

Some may say that they have a constitutional right under the Second Amendment to carry a firearm, but it is our view that community associations are not “state actors,” and therefore, are entitled to govern their private property in the same way that any other private property owner could.

There is case law to suggest that when an association attempts to enforce its restrictions in court, that such association then becomes a “state actor” via such court action. Many attorneys take the position that this analysis only applies to the enforcement of racial covenants in court, but it is certainly within the realm of possibility that a conservative court might broaden this applicability and attempt to apply the “state actor” analysis to the enforcement of any restrictions that would run afoul of any rights granted under the Constitution, including the Second Amendment.

In addition, there are other considerations regarding compliance with federal and state fair housing laws, which prohibit discrimination on the basis of race, color, national origin, religion, sex, familial status and disability. So, if an association’s policy on firearms disproportionately affects members of a protected class, it could be deemed discriminatory and subject to legal challenge.

Overall, the extent to which an association may regulate firearms on its property depends on various factors, including the nature of the regulation, the powers conferred upon the association in its governing documents, and the application of state and federal law. There is also a practicality aspect, such that if an association creates such a rule, it then likely has the obligation to enforce it. The problem then is, if a member is carrying a concealed weapon, the association would likely not be aware of it, and therefore would be unable to enforce the rule. An association passing such a rule would be dependent on voluntary compliance. The association would be assuming some liability without the ability to compel compliance. If you are a member of a community association and have questions about your rights and responsibilities regarding firearms on the property, it’s best to consult with an attorney who specializes in this area of law.