Carolina Sznajderman Sheir of Eisinger, Brown, Lewis, Frankel & Chaiet. Courtesy photo

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 Section 720.316(1)(a)-(h) for Homeowners Associations are no longer applicable to the COVID-19 crisis.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:

1. 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.

2. 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.

3. This emergency order shall take effect on the date of its filing.

Carolina Sznajderman Sheir is a partner at Eisinger Law and her practice focuses on real estate law, community association law, commercial litigation and developer representation. She can be reached at [email protected]m or 954-894-8000 ext. 238.