RE Q&A: Can My HOA Ban Legally Purchased Fireworks?
STUART, Fla. – Question: July 4th is coming up. My HOA says I cannot use fireworks to celebrate even though there is no rule or restriction in the governing documents prohibiting fireworks. Can I celebrate with lawfully purchased fireworks on July 4th? – K.C., West Palm Beach
Answer: Maybe. A new law was adopted by the Florida Legislature in March. The law is now in effect. The new law provides that fireworks may be lawfully used on December 31 (New Year’s Eve), January 1 (New Year’s Day), and July 4 (Independence Day). The law does not supersede local ordinances nor a properly recorded declaration of covenants for Chapter 720 Homeowners Associations.
So, an HOA can prohibit fireworks on all days including the three designated days IF it is in the recorded covenants. However, the law does supersede any HOA board adopted rules prohibiting the use of fireworks on the designated days. So, as long as your local community does not prohibit fireworks and your HOA recorded covenants do not prohibit them, you can shoot fireworks this July 4th.
Note: This law does apply to condominiums or cooperatives regardless of recorded covenants or rules, so condominiums and cooperatives cannot prohibit fireworks on the three designated holidays, but a local municipality may do so.
Question: We have a local sheriff’s deputy that parks her car in her driveway overnight. Our rules prohibit the parking of “business vehicles” outside of garages. Some people in the community claim that the sheriff’s vehicle is a business vehicle and should not be allowed to park outside of the garage. What do you think? – B.H., Port St. Lucie
Answer: First, I think it is highly debatable that a law enforcement vehicle would be considered a business vehicle. Second, I think a law enforcement vehicle parked in the community would be an effective deterrent to crime and mischief in the community as well.
However, the Florida Legislature adopted a new law in the legislative session concluded in March of this year. The new law is effective immediately. Specifically, Chapters 718 (Condominiums), 719 (Cooperatives) and 720 (Homeowner Associations) were all amended to provide that an association may not prohibit a “law enforcement officer” who is an owner, or a tenant, guest or invitee of an owner, from parking his or her assigned law enforcement vehicle in an area where the owner, tenant, guest or invitee otherwise has a right to park.
Note: A law enforcement officer is defined in F.S. 943.10(1) as a person “vested with the authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime.” So, this law does not apply to firefighters, EMS or similar government employees.
Question: I understand that a community association’s emergency powers under Chapters 718 (Condominiums), 719 (Cooperatives) and 720 (Homeowner Associations) can be exercised when a government declared state of emergency exists. Presently, the governor’s state of emergency is in effect until July 7. If the state of emergency does not get extended, do the association’s emergency powers end on that date? – A.W., Vero Beach
Answer. No. First, locally imposed states of emergency may still be in effect after that date. Secondly, subsection (2) of the emergency powers laws provides that “the authority granted under subsection (1) is limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the parcel owners and their family members, tenants, guests, agents, or invitees, and to mitigate further damage and make emergency repairs.” So, a board may continue to exercise its emergency powers if it is still “reasonably necessary” to do so.
However, I believe it would be incumbent on a board to obtain some type of recommendation from a qualified licensed professional that due to the particular circumstances affecting the association, the need to continue to impose emergency restrictions still exists and is reasonably necessary. This type of recommendation I think will be more and more difficult to obtain if the businesses open to the general public are not imposing similar restrictions such as following the CDC guidelines even in the absence of a declared state of emergency.
Richard D. DeBoest II, Esq., is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, PLLC or any of our attorneys.
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