2019 Legal Update
By: Christopher N. Davies, Esq.
Chair – Condominium, Cooperative and Homeowner Practice Group
We trust you had a pleasant summer and are looking forward to another enjoyable winter season in Southwest Florida. From time to time, we like to update our clients with significant legal happenings and especially upon returning to Florida after being gone for many months.
The Florida Legislature had a relatively light year for passing legislation affecting community associations; however, the following laws enacted during the 2019 session may have some impact on your community:
MEDICAL USE OF MARIJUANA
§381.986, Florida Statutes.
- Permits the smoking of marijuana by including smoking marijuana within the definition of “medical use.”
- Prohibits smoking in enclosed indoor workplaces and cannot be smoked in public.
- Prohibits physicians from certifying patients under 18 years old to smoke marijuana unless diagnosed with a terminal illness.
- The law does not impair a private party or entity from restricting or limiting smoking on his or her property.
§386.202 and §386.203, Florida Statutes.
- Implements Amendment 9 to the Florida Constitution (approved by the voters on November 6, 2018) to ban the use of vapor-generating electronic devices, such as electronic cigarettes (e-cigarettes), in enclosed indoor workplace.
- Permits the use of vapor-generating electronic devices in the enclosed indoor workplace of “vapor-generating device retainer” or “retail vape shop.”
- Amends the State’s preemption of tobacco smoking regulation in §386.209, F.S., to adopt and implement the grant of authority to local governments by Amendment 9 to adopt more restrictive local ordinances on the use of vapor-generating electronic devices.
CONDOMINIUM ENGINEERED LIFE SAFETY SYSTEMS (ELSS) FIRE SPRINKLER RETROFIT
§718.112(2)(1) and §718.1085, Florida Statutes.
- The deadline for condominium “high-rise” buildings as defined by the Florida Fire Prevention Code to retrofit with either a fire sprinkler system or engineered life safety system (ELSS) is extended to January 1, 2024.
- The requirement for a “certificate of compliance” from a licensed electrical contractor or electrician that a unit has been retrofitted in accordance with the Fire Code has been removed. (Provision does not apply to timeshare condominiums.)
- Requirement to retrofit common areas with handrails and guardrails is extended to December 31, 2024 unless there is a successful opt-out vote before the new deadline.
- Amends §718.1085 to specifically exclude individual unit balconies from the definition of “common area” required to be retrofitted. The definition still includes stairwells and exposed outdoor walkways and corridors.
- Older high-rises that had not previously taken an opt-out vote will now have a second opportunity to vote.
ASSIGNMENT OF BENEFITS (AOBS)
§627.7152, §627.7153 and §627.422, Florida Statutes.
- Requires AOB contracts to contain right of rescission within 14 days of signing.
- Requires AOB contracts to contain certain boldfaced disclosures.
- Requires AOB contracts to disclose unit pricing information for work performed.
ELECTRONIC LEGAL DOCUMENTS
§117.201 and §117.285, Florida Statutes.
- Authorizes remote on-line notarization and prescribes procedures for implementing the remove authority.
- Permits appearance before on-link notary by audio-video communication technology.
- Permits notary to remotely supervise witnessing of records by third party by audio-video communication technology.
COUNTY COURT JURISDICTION
§721.83, Florida Statutes.
- Increases the jurisdictional threshold between county and circuit courts from $15,000 to:
- $30,000, beginning January 1, 2020
- $50,000, beginning January 1, 2023
- Makes low-cost mediation available in county court only in cases where the amount in controversy does not exceed $15,000.
- Provides that a county court case with an amount in controversy exceeding $15,000 is appealed to the district court of appeal, until January 1, 2023, at which time the provision is repealed.
As you can see, there were no new statutes to be alarmed about or that would require amendments to your community documents. There are, however, some other legal matters which are deserving of attention. Our daily practice in representing associations allows us to learn what a number of associations are experiencing and for which legal advice may be necessary. Here are some considerations.
Some of our clients find themselves compelled to seek advice on behavioral issues based on owners being disrespectful and showing a lack of civility. This scenario is typically between owners and directors and owners and management and security personnel. If you have encountered this problem, we would be happy to discuss the matter further and for the Board to consider the adoption of a resolution on civility and anti-harassment.
Smoking continues to be an issue for some communities. Smoking bans community wide are becoming increasingly common. It is important that the correct procedures are followed when the Board of Directors is considering this matter. Smoking medical marijuana has now become an issue in light of statutory changes under Florida law that went into effect in March, 2019. In early October, I presented on the topic of medical marijuana at the University of Miami Ralph E. Boyer Institute on Condominium and Cluster Development so we are well familiar with the issues. If you have a resident desiring to smoke medical marijuana, or considering a community wide smoking ban, please contact us for appropriate legal advice.
Associations still receive requests for access to official records. At times, these requests are very broad and overreaching and too frequent. For example, “All of the records for seven (7) years” is a common request. To combat these types of requests, we recommend the adoption of a Board resolution on access to records limiting frequency and breath. If your Association does not have such a policy, it should be considered. Remember that Minutes now have to be kept forever; this is an exception to the seven (7) year rule for most other documents.
Occasionally we are retained by a new client that has very old documents which have never been amended. These documents become extremely difficult to follow because they are out of step with current Florida law. They also do not reflect practices that may have evolved over the years in your community. Many documents still include developer references which have long become irrelevant and make the documents that much more cumbersome to read and study. We would be happy to analyze your community’s documents if you are in need of an update.
Finally, some news about Cohen & Grigsby. Our law firm has plans to combine with two other law firms, Dentons and Bingham Greenebaum Doll, as a first step towards forming the first truly national law firm in the United States. At launch, anticipated to be in January 2020, the new firm will have offices in 33 U.S. markets with 1,100 lawyers in the United States. We will be known as Dentons, Cohen & Grigsby.
Due to the unique structure of the proposed combination, our relationship with you will not change: we will continue to set our fees locally and you will continue to deal with the same individuals you deal with now in our office. The combined firms will, however, have greater resources and a national and global reach for those clients who may have such needs.
As always, please contact our office if you have any questions regarding legal matters in your community. It is our goal to be responsive and provide effective and pragmatic advice at a reasonable cost to our community association clients.