For more than a year,
condo associations had to become COVID-19 traffic cops for
hundreds of thousands of Floridians in high-rises and
sprawling complexes. They had to enforce the use of masks,
social distancing and rules for pools and other public
spaces.
Now the state of Florida has enforcement out of the hands of
local governments, and the Centers for Disease Control and
Prevention has eased guidance for vaccinated people. The
landscape has changed for these voluntary governing
organizations.
The South Florida Sun Sentinel reached out to local experts
to determine how much power condo associations still have
over their residents.
The experts are Donna DiMaggio Berger, an attorney
specializing in association law at Becker & Poliakoff in
Fort Lauderdale that represents more than 5,000
associations; Carl Marzola, president of Atlantic Properties
International, a real estate services firm in Fort
Lauderdale; and Frank Simone, general counsel for KW
Property Management & Consulting of Miami, which manages 300
properties in Florida and the Bahamas.
With local governments barred from requiring masks and
social distancing, can condo associations continue to
mandate them for residents and visitors?
Donna DiMaggio Berger: Yes. While the governor may have
prohibited local governments from imposing COVID safety
protocols on the one hand, on the other hand he extended
Florida’s state of emergency until June 27. By doing so, he
extended the time frame by which volunteer boards can
utilize their statutory emergency powers to safeguard their
residents.
It’s important to remember that even if the statewide state
of emergency ends on June 27, boards’ statutory emergency
powers remain in effect for a period of time as is
reasonably necessary to contend with the emergency. So for
communities that have an active COVID infection amidst its
residents or staff on June 28, those powers may continue to
allow their boards to grapple with the potential
consequences of that infection.
Carl Marzola: Yes, they can. The elected board looks out for
the welfare of its residents and if the board votes ‘yes,’
then it does become the rule. Owners typically execute
documentation that they will follow the rules that the board
sets forth.
Frank Simone: Yes. It’s private property. The governor has
only said municipalities cannot require that. He stopped
rules and laws that would circumvent his mandates.
Businesses can require folks to wear coverings and establish
social distance rules. It doesn’t apply to the private
sector. They cannot ask people if they are vaccinated.
Although Gov. DeSantis prohibited “vaccine passports,” can
associations require proof of vaccinations?
Donna DiMaggio Berger: It is debatable as to whether or not
private residential community associations are impacted by
the governor’s prohibition against the use of “vaccine
passports.”
While associations are seen as business entities in certain
circumstances, they don’t have the patrons or customers
referenced in the governor’s order unless you are dealing
with a mixed-use condominium. However, even had the governor
not issued his order, I would not be in favor of relying
upon proof of vaccination as the means to enforce safety
protocols in a residential community. Vaccines may not be
possible for everyone. They do not provide 100% protection,
particularly when it comes to possible virus variants and
they may convey a false sense of security.
Carl Marzola: Currently associations are verbally asking on
a voluntary basis. A high percentage of owners are being
cooperative.
Can associations be sued if someone gets sick after they
dropped their COVID rules? Or are associations protected
like businesses?
Donna DiMaggio Berger: The recent COVID liability bill (SB
72) does specifically protect community associations so long
as they were following the advice of public health officials
at the time the cause of action occurred. This is why it was
so important for boards to take a clear-eyed approach to
their safety protocols as opposed to caving in to pressure
from some residents who wished to return to pre-COVID
operations before it was safe to do so.
I’m pleased to report that the boards I work with struck the
right balance between protecting their communities while
also helping to assure their residents that they had a plan
in place to normalize operations as soon as it was safe to
do so.
Carl Marzola: Anyone can cause a lawsuit. However, the
individual must have solid proof they were infected as a
direct result from the association common areas. If that
individual refused vaccination despite the science we now
understand, it would be an uphill battle for that
individual.
Frank Simone: If they [associations] are following CDC
guidelines, it would be hard for anyone to say they were
grossly negligent under the liability protections under
Florida statutes. That doesn’t stop them from being more
stringent if they wanted to.
Ultimately, is state law now overriding association bylaws
that govern how health safeguards can be used?
Donna DiMaggio Berger: Not at all. Some association
residents seem to have forgotten that their elected boards
always had the authority to set reasonable operational
guidelines for the use of the common areas.
Well before the pandemic, we had people in some communities
complaining that their community pool was not open until
midnight because they wanted to take an evening swim. In
those cases, the response was that the board had set the
operational hours in a manner they felt was most conducive
to safeguarding residents and minimizing nuisance activity.
The same holds true now.
Local orders were always the floor of what boards could
enforce — not the ceiling — when emergency powers are
activated, which they are until June 27. In addition, some
communities have governing documents, which also empower the
board to take these kinds of steps in the midst of an
emergency. I know a lot of people want to look at what has
been done at the state and local levels and assume that
their association must follow suit, but it’s a lot more
nuanced than that.
Carl Marzola: An association can impose “emergency
guidelines” if the threat of widespread infection is within
the building. Florida Gov. Ron DeSantis has expressed that
the state is no longer in a “state of emergency” and said
the vaccine effectiveness is slowing down the spread of the
illness. Ultimately, it’s a decision that each association
must determine for their residents.