“Community Associations Affected by the 2021 Legislative Session Part X,” News-Press

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“Community Associations Affected by the 2021 Legislative Session Part X,” News-Press

This week continues our review of the 2021 legislative changes affecting Florida community associations focusing on two bills that address COVID-19 pandemic legal issues.

Senate Bill 72 took effect on March 29, 2021. This law was initially reported in this column on April 25, 2021. SB 72 outlines the legal process a plaintiff must follow to bring a claim based on an alleged COVID-19 infection from the defendant’s premises. The new law creates several legal hurdles for a plaintiff seeking damages, including the requirement that the complaint (initial lawsuit filing) be accompanied by an affidavit signed by a physician licensed in the State of Florida stating the physician’s belief within a reasonable degree of medical certainty that the plaintiff’s COVID-19 injury was the result of the defendant’s acts or omissions.

The statute requires that the court first hold an evidentiary hearing to determine whether the defendant made a good faith effort to comply with public health standards. If the court finds that the defendant did make such a good faith effort, the defendant is immune from liability.

If the court determines that the defendant did not make a good faith effort, the plaintiff may proceed with the lawsuit, but the plaintiff must show that the defendant committed gross negligence in order for the defendant to be held liable. Gross negligence is a much higher standard than is required in most civil lawsuits.

Senate Bill 2006 became effective July 1, 2021. Section 252.36 of Florida Statutes, which deals with the emergency management powers of the Governor, was amended to provide that an executive order, proclamation, or rule establishing a state of emergency must be limited to a duration of not more than 60 days and may be renewed as necessary during the duration of the emergency. If renewed, the order, proclamation, or rule must specifically state which provisions are being renewed. Further, at any time, the Legislature, by concurrent resolution, may terminate a state of emergency or any specific order, proclamation, or rule thereunder. Upon such concurrent resolution, the Governor shall issue an executive order or proclamation consistent with the concurrent resolution.

Section 252.38(4) of the Florida Statutes addresses emergency orders imposed by political subdivisions, meaning local governments such as counties, cities, towns, and villages. Local orders issued in response to hurricanes or other weather-related emergencies are not covered by this law. The new law vests the Governor with power, at any time, to invalidate an emergency order issued by a political subdivision if the Governor determines that such order unnecessarily restricts individual rights or liberties. The law grants broad discretion to the Governor in determining what local orders “unnecessarily restrict individual rights or liberties.” Obviously, these changes were the result of the plethora of sometimes complicated and occasionally contradictory local orders regarding COVID-19, especially during the early phases of the pandemic.

New Section 381.00316 of the Florida Statutes, states that a “business entity” may not require “patrons or customers” to provide any documentation certifying COVID-19 vaccination or post-infection recovery to gain access to, entry upon, or service from the entity’s business operations. The law does not otherwise restrict instituting screening protocols consistent with authoritative or controlling government-issued guidance to protect public health.

The term “business entity” includes not-for-profit corporations and would therefore include community associations. However, there is substantial debate whether the new prohibition against “vaccine passports” applies to owners, residents, or others in a community, specifically whether such persons are “customers” or “patrons.” If an entity violates the statute, the Department of Health may impose a fine not to exceed $5,000.00 per violation.

Joseph Adams is a Board Certified Specialist in Condominium and Planned Development Law, and an Office Managing Shareholder with Becker & Poliakoff. Please send your community association legal questions to jadams@beckerlawyers.com. Past editions of the Q&A may be viewed at floridacondohoalawblog.com.