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DBPR Issues Emergency Order 2020-06 New Order Ends Emergency Powers Outlined in Prior Order, May Cause Confusion for HOAs

On May 20, 2020, the Florida Department of Business and Professional Regulation (DBPR) issued Emergency Order 2020-06, which appears to cancel a majority of the provisions previously adopted in Emergency Order 2020-04, issued March 27, 2020 in response to the COVID-19 crisis. The DBPR has taken the position that its prior Emergency Order, which among other things partially recognized statutory emergency powers in response to the COVID-19 crisis, is no longer necessary. 

The DBPR’s second attempt to address the global pandemic and at the same time clarify ambiguities for the thousands of community associations throughout the state, has generated heated debate amongst association attorneys, and has left community associations with even more unanswered questions.  

Order 2020-06 provides that Sections 1, 2, 3, 4, 5, 6, 7, 8 and 9 of DBPR Emergency Order 2020-04 shall cease to be operational as of June 1, 2020. Simply put, this new Order appears to indicate that the provisions of Fla. Stat. §718.1265(1)(a)-(j) for Condominiums, Fla. Stat. §719.128(1)(a)-(j) for Cooperatives and Fla. Stat. §720.316(1)(a)-(h) for Homeowners Associations are no longer applicable to the COVID-19 crisis. 

Among other things, the above provisions permitted community associations to conduct board meetings and membership meetings with notice given as practicable; to cancel and reschedule any association meeting; relocate the association’s principal office or designate alternative principal offices; implement a disaster plan; determine any portion of the property unavailable for entry or occupancy by unit owners, family members, tenants, guests, agents, or invitees to protect the health, safety or welfare of such persons; and based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine whether the property can be safely inhabited or occupied. 

Additionally, Order 2020-06 appears to reinstate the requirement that emergency powers be triggered in “response to damage caused by an event,” raising the question whether the COVID-19 crisis “caused damage” and can be considered such an “event” under the statutes.  

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