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Florida Department of Business and Professional Regulation Issues Emergency Order 2020-04 to Help Guide Community Associations Through Operational Ambiguities During the COVID-19 Pandemic Order Enables Condominiums Associations to Enforce, Select Emergency Powers, But Not All

On March 27, 2020 the Florida Department of Business and Professional Regulation (DBPR) issued Emergency Order 2020-04 in response to the COVID-19 crisis. It was the first time the DBPR weighed in on the global pandemic, attempting to clarify ambiguities for the thousands of community associations throughout the state. It is estimated that more than 60 percent of Floridians either live in a community association such as a condominium, homeowners association or a co-op.



Order 2020-04 helped clarify some questions but also left a many more unanswered. For instance, the Order affirms that the COVID-19 pandemic is indeed an emergency and indicates that the statutes that provide community associations with emergency powers are applicable to the COVID-19 epidemic. This appears to be in direct response to the debate surrounding the language “response to damage caused by an event,” as practitioners argued that “damage” needed to be physical damage to the property, i.e. a hurricane or windstorm as was likely its original intent. Order 2020-04 suspends the language “response to damage caused by an event,” allowing community associations to avail themselves of some, but not all of the emergency powers.



“Although this DBPR Order confirms the availability of the statutory emergency powers during the COVID-19 crisis, it appears that the Division did not feel it was necessary to apply or fully activate all subsections of the emergency powers statutes at this time.” said Alessandra Stivelman, partner at Eisinger, Brown, Lewis, Frankel & Chaiet, P.A. “This is a critical distinction because the DBRP Order specifically omits the powers that permit an Association to borrow money and levy special assessments if needed. Community associations are inevitably bound to feel the effects of the financial hardships that we are facing as a result of this pandemic.”



So, what does this means for an association?



The DBPR Emergency Order 2020-04 provides the emergency powers described in subsection 718.1265(1)(a)-(j) which pertains to condominiums and co-ops, and 718.1265(1)(a)-(h) for HOAs but left out sub-sections (k-m) for condominiums and co-ops, and (i-k) for HOAs, thereby omitting multiple financial provisions from the Order.



“I think this will become an issue that will require further order and/or clarification, particularly as associations come under financial strain,” said Carolina Sznajderman Sheir, Esq. partner at Eisinger, Brown, Lewis, Frankel & Chaiet, P.A. “There will likely come a time in the near future when associations are unable to meet their financial obligations as we begin to experience the trickledown effect of the millions of people who are now out of work.”



Another item the Order provides for is the suspension of the timing requirements for the filing of financial reports. Other than the items stipulated in subsections 1(a)-(j) for condominiums and co-ops) and 1(a)-(h) for HOAs, all other functions of the Association remain intact and are not altered by the emergency powers.



The text of the State of Florida Department of Business and Professional Regulation Emergency Order 2020-04 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, as of March 23, 2020, numerous 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, 2020, 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;



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 negatively impacted by the application of certain regulatory statutes related to the Department of Business and Professional Regulation (“the Department”). Therefore, I order the following:



1. The limitation within section 718.1265(1), Florida Statutes, of the emergency powers of a condominium association during a declared state of emergency being conditioned upon a “response to damage caused by an event” is hereby suspended. The emergency powers available to condominium associations’ boards of administration, as described in section 718.1265(1)(a)-(j), Florida Statutes, are hereby available to help protect the health, safety, and welfare of the association, unit owners, unit owners’ family members, tenants, guests, agents, or invitees.



2. The limitation within section 719.128(1), of the emergency powers of a cooperative association during a declared state of emergency being conditioned upon a “response to damage caused by an event” is hereby suspended. The emergency powers available to cooperative associations’ boards of administration, as described in section 719.128(1)(a)-(j), Florida Statutes, are hereby available to help protect the health, safety, and welfare of the association, unit owners, unit owners’ family members, tenants, guests, agents, or invitees.



3. The limitation within section 720.316(1), of the emergency powers of a board of directors during a declared state of emergency being conditioned upon a “response to damage caused by an event” is hereby suspended. The emergency powers available to boards of directors, as described in section 720.316(1)(a)-(h), Florida Statutes, are hereby available to help protect the health, safety, and welfare of the association, parcel owners, parcel owners’ family members, tenants, guests, agents, or invitees.



4. The exercise of any association’s emergency powers remains unless specifically prohibited by the provisions of the association’s governing documents. See 718.1265(2), 719.128(2), & 720.316(2), Fla. Stat. (2019).



5. The provisions identifying emergency management officials in sections 718.1265(1)(g) and 719.128(g), Florida Statutes, is clarified to include public health officials.



6. The timing requirements for condominium associations’ financial reports in section 718.111(13), Florida Statutes are hereby suspended and tolled.



7. The timing requirements for cooperative associations’ financial reports in section of 719.104(4), Florida Statutes, are hereby suspended and tolled.



8. The timing requirements for submitting copies of a timeshare plans’ audited financial statements to the Department in section 721.13(3)(e), Florida Statutes, are hereby suspended and tolled.



9. The timing requirements for submitting copies of a timeshare plans’ statement of receipts and disbursements regarding an ad valorem tax escrow account in sections
721.13(3)(i)1. and 192.037(6)(e), Florida Statutes, are hereby suspended and tolled.
10. The assessments of harbor pilots made pursuant to rule 61G14-19.001, Florida Administrative Code, are waived for March and April, 2020, and the deadline for submission of the earnings statement and the appropriate material from the federal income tax return is extended from April 15, 2020 until July 15, 2020.



11. Any restriction in chapter 474, Florida Statutes, or chapter 61G-18, Florida Administrative Code, which would prohibit active Florida licensed veterinarians in good standing from practicing telemedicine on their patients is suspended provided the attending veterinarian is comfortable assessing the patient remotely and feels able to exercise good clinical judgement to assist the patient.



12. This Emergency Order shall expire at the expiration of Executive Order 20-52, including any extension.