The uniquely Florida wink-and-a-nod ritual entailed in buying consumer-grade fireworks became statewide history as of April 8, 2020 with a new law §791.08, F.S., which eliminated the much-reviled “bird scaring” waiver previously required to purchase low-grade pyrotechnics.
The product of years of lawmakers’ wrangling with fireworks manufacturers (often joined by the emergency physicians and hospitals’ lobby), the legislation allows Floridians to now purchase consumer-grade fireworks with abandon, unoppressed by the bird waiver on three holidays: Fourth of July, New Year’s Eve and New Year’s Day.
Doused with a characteristic smattering of gray, the new law says their homeowners’ association had better not interfere—unless, of course, it is already in the declaration.
“The takeaway is that up until recently, homeowners’ associations thought they would be able to regulate issues with fireworks via rules,” said Carolina Sznajderman Sheir, partner at Eisinger Law. “However, in the HOA context, the board of directors would now have to do this in the associations’ official recorded declaration which is a lengthier process.”
SB 140 is simple. The pertinent new section of law it creates at S. 791.08 (3), F.S. reads: “The Legislature does not intend for the application of this section to supersede any prohibition against the use of fireworks contained within a legally executed and properly recorded declaration of covenants or covenant runni9ng with the land of any homeowners’ association pursuant to Chapter 720. However, a homeowners’ association, through a board of directors, may not promulgate rules that attempt to abrogate a homeowner’s right to use fireworks during a designated holiday or under general law.”
The previous waiver existed to protect pyrotechnics manufacturers from liability. Heretofore, if you signed a waiver attesting to use of your purchased fireworks to scare birds away from your “agricultural works or aquaculture,” but actually had neither of these farming operations going on, the manufacturer could technically point to your misuse of their product if it was revealed you happened to be injured by a Roman Candle or set fire to your neighbor’s roof, for instance.
With most municipal pyrotechnic displays canceled for the Fourth of July this year, revelers celebrated at home, increasing Florida fireworks sales exponentially. Meaning, if homeowners associations that did not already have rules about fireworks in their declarations, they likely got a whole lot louder and more dangerous, from both a flammability and socially distanced perspective.
“Traditionally and culturally, Christmas and New Years are popular holidays to celebrate with fireworks, especially within South Florida’s Latin community,” said Alessandra Stivelman, partner at Eisinger Law. “When it comes to detonating explosives at home, we encourage our community association clients to assess insurance policies, amend declarations if they so desire and advise residents to use simple common sense.”
Certainly, the question of who is liable for a fireworks-related accident is often a factor of its severity. Where and when the user bought the fireworks, whether he or she has property or health insurance coverage, and how it interrelates with the association’s coverage are all variables that will now have to be legally revisited to account for lack of the so-called bird waiver. These cases have yet to be brought to bear.
A year before SB 140 was enacted, the Pew Research Center reported that, on average, over 90,000 people visit U.S. hospital emergency rooms for treatment of injuries between July 4 and 5—equating to the highest daily trauma numbers for the entire year. This year, those injured could bear the risk of hospital-acquired COVID-19 as well.
Carolina Sznajderman Sheir is a partner at Eisinger Law and an AV Preeminent® rated attorney. She focuses her practice on real estate law, community association law, commercial litigation and developer representation. She can be reached at firstname.lastname@example.org or 954-894-8000 ext. 238.
Alessandra Stivelman, partner at Eisinger Law is a Board Certified Specialist in Condominium and Planned Development Law and AV Preeminent® rated. She focuses her practice on community association and real estate law and can be reached at (954) 894-8000 x 304 or email@example.com.
Eisinger Law is a multi-practice Florida law firm focused on community association law, real estate law, developer representation, civil/commercial litigation, insurance law, estate planning and probate. For more information, visit eisingerlaw.com or call 954-894-8000.