By Ellyn Setnor Bogdanoff, Esquire, and Yeline Goin, Esquire / Published March 2018
The 2018 Legislative Session began on January 9 and is scheduled to end on March 9. As usual, there are a number of bills that have been filed that will impact community associations if they become law. For this article, we will focus on two main issues that are addressed in some of these bills: (1) fire safety for high-rise condominiums and cooperatives; and (2) fixing the glitches and unintended consequences as a result of the 2017 condominium legislation. Please note that bills change quickly during the legislative process, and the bills discussed in this article may be different by the time you read this article.
Given my background and personal experience when I served in the Florida House and Senate and was approached by residents in older Florida high-rises who were very concerned about costly sprinkler retrofits, I was excited to serve as Becker & Poliakoff’s lead lobbyist on our ELSS Opt-Out Legislation during the 2017 Legislative Session. We were ultimately successful with the passage of HB 653, with just one dissenting vote in the Florida Legislature. High-rises already have the ability to opt out of fire sprinklers, and HB 653 would have given them the ability to opt out of an engineered life safety system (ELSS) since it appeared that many Fire Marshalls were requiring fire sprinkler systems in order to meet the “score” to be in compliance with the ELSS criteria. Additionally, there was no uniformity throughout the state, and we were unable to find the “rule” that was promulgated to assist us in understanding the components of an ELSS.
Unfortunately, we didn’t make it over the finish line in 2017 as Governor Scott vetoed the bill. The timing of the London fire (Grenfell Tower on June 14, 2017) clearly played a role in this decision. The loss of life in London was a tragedy that I believe gave all of us pause. We believed we had the Governor’s support, as we even increased the opt-out to a two-thirds vote at his request. I am sure our opposition seized the moment, and in an abundance of caution, Governor Scott vetoed the bill.
There have been a lot of twists and turns since then, and there was yet another fire in Hawaii to add to the mix. Nevertheless, we have regrouped and Representative Moraitis has filed the bill again for the 2018 Legislative Session, HB 1061. Senator Farmer filed the identical bill in the Senate, SB 1432.
Another approach that we are pursuing is that arguably, the fire marshals have exceeded their statutory authority when they required fire sprinklers as part of an ELSS, because Florida Law allows associations to opt out. If you opted out and had the statutory right to do so, then to require it through another door constitutes an unpromulgated rule by policy that exceeds statutory authority. The law says you do not have to have sprinklers, yet the fire marshals insist that you do by requiring it as part of an ELSS. It is my opinion that the fire marshals do not have such authority.
We will continue to pursue the legislation, and as of the writing of this article, the bills are moving. I also met with the Chairs of the Joint Administrative Procedures Committee (JAPC), the Committee that oversees the overreach of the Executive Branch when implementing laws, and the Committee has requested a copy of this “scoring” sheet. It is a first step. I am also scheduled to meet with the CFO, Jimmy Patronis, who serves as the State Fire Marshal, to see if there is a way to stop this train that will cost hundreds of associations thousands, if not millions, of dollars without first pursuing legislation or challenging the rule. We can only hope there will be a resolution soon as this has been an exhausting journey. More than 770 associations have opted out since 2004.
Although it is unclear how many are required to comply with installing an ELSS, arguably it is a lot more than most think.
The primary community association bill that passed during the 2017 Legislative Session was HB 1237, Relating to Condominiums. HB 1237 included many substantive changes to the Condominium Act. How-ever, as frequently happens with legislation, there are a number of glitches that need to be fixed and unintended consequences that have arisen as a result of the legislation. The following are some of the issues that are being re-considered this year in three bills: SB 1274 and HB 841, Relating to Community Associations, by Sen. Passidomo and Rep. Moraitis, respectively, and SB 1530, Relating to Condominium Associations, by Sen. Mayfield.
Ellyn Setnor Bogdanoff, Esquire
Becker & Poliakoff
Yeline Goin, Esquire
Becker & Poliakoff