An Update Regarding Florida Executive Orders and How it Effects Associations

Filed Under: Legal Update

First and foremost, we hope this communication finds you and yours in good health and spirits in dealing with the continuing challenges of Covid-19. This update is primarily driven by the release of DBPR EO-20-06 released May 20, 2020, which creates an “expiration date” of June 1, 2020 regarding DBPR EO-20-04 which found that community association emergency powers provided for by statute apply to the coronavirus pandemic. EO-20-04 presumes these statutory powers do not apply during the pandemic, a conclusion which is questionable at best and one which the DBPR arguably has no authority to make. We maintain that the emergency powers of the respective statutes do apply, and continue to humbly disagree with the DBPR’s conclusion.

Governor’s Order No. 20-123

Effective May 18, 2020 – View order

  • Brings all Counties in Florida into full “Phase I” reopening (see White House Guidelines for Re-Opening America-Phase I)
  • Restaurants, Retail, Museums and Gyms are permitted to operate with significant limitations concerning the number of patrons and distancing requirements (generally 50% of building capacity and requirements for self-cleaning by patrons for gyms and fitness centers)
  • Professional Sports Venues and Amusement Parks are reopened with plans approved by local authorities
  • Vacation Rentals are subject to “reopening” on a County-by-County basis subject to an approved safety plan submitted to the DBPR by the County Administrator (guidance posted on DBPR website Information for Vacation Rentals )
  • The Local Government public meetings order is extended

Governor’s Order No. 20-121

Extended to June 2, 2020 – View order

Extends the mortgage foreclosure relief and prohibition against residential evictions established by Executive Order 20-94 until June 2, 2020. View Executive Order 20-94

Governor’s Order 20-112 – “Phase I” Reopening

Effective May 4, 2020 – View order

  • Prohibits “large groups” (greater than ten) from congregating in public spaces that do not “readily allow for appropriate physical distancing”.
  • Travel and isolation requirements are continued.
  • Allows reopening of restaurants and food establishments with limitations, provided they do not derive greater than 50% of their revenue from on-site alcohol consumption.
  • Museums and libraries reopened with restrictions.
  • Elective Medical procedures permitted.

Orders Issued by the Florida Department of Business and Professional Regulation

DBPR Emergency Order No. 20-04 issued March 27, 2020, purported to “suspend” the limitations of 718.1265, 719.128, and 720.316 which, according to the DBPR, condition community association emergency powers upon a “response to damage caused by an event” for which a state of emergency has been declared. On May 20, 2020, the DBPR issued DBPR Emergency Order No. 20-06 which effectively negates the implicit finding in EO 20-04 that the Association emergency powers of the statutes apply to the present state of emergency related to Covid-19. It is imperative to understand that these orders do not affect the present state of emergency declared by Governor DeSantis.

Initially, it is questionable whether the DBPR has the authority to interpret the statutes and issue orders of this nature as their authority to act is limited to the authority granted to them by our state legislature. Second, at no time has there been a declaration by our legislature that the emergency power provisions of the statutes do not apply, or that the challenges and injury caused by Covid-19 are not “damage caused by an event”. Respectfully, I must question the DBPR’s authority and recommend that the Governor’s Orders, CDC recommendations, and specific legal guidance be relied upon by community associations in Florida, and erring on the side of caution and safety is the advisable course. I maintain that the Governor’s Orders, CDC guidelines and recommendations, and the emergency powers of the respective statutes continue to provide community association boards with the authority to take actions such as rescheduling meetings, utilizing technology to limit attendance and allow owner participation, and take steps to reopen common facilities with protocols or keep them closed.

Be sure to consult with your Association counsel to address your specific concerns.