How to Draft Restrictions to Keep the Sky from Falling

By Michael J. Gelfand, Esq. / Published June 2017

Editor’s Note: The memorandums for April and May included summaries of legislation proposed during the 2017 Legislative Session. Due to those items being time-sensitive, they will not be featured in the July issue. However, if your association is a client of Gelfand & Arpe, the April and May Memorandums can be accessed at www.gelfandarpe.com/resources/memorandum/.

Writing an effective use restriction can prove to be very tricky. Many community associations can learn drafting lessons from Walton county’s effort to prohibit skydiving. Sometimes governments have the same drafting and enforcement problems as community associations.

A Florida appellate court recently ruled that a skydiving business operated on a farm did not violate the county’s zoning laws. The facts in Nipper v. Walton County, 42 Fla. L. Weekly D 171 (Fla. 1st DCA, January 17, 2017), show that the Nippers owned a 290-acre farm. After the Nippers began operating a skydiving

business on the farm, the county not only denied the Nippers’ request for permission to operate the business, but the county cited the Nippers for a code violation. The code enforcement board rejec-ted the county’s argument and concluded that the skydiving business did not violate the zoning code.

In the meantime, before the board reached its decision, the Nippers sought a declaration from a judge that their skydiving business fit within the state exemption for “agritourism.” The county filed a cross-claim seeking a permanent injunction to stop the skydiving business. The trial court granted the permanent injunction sought by the county, finding that the skydiving business violated the zoning code.

The Florida appellate court disagreed with the trial court, finding that nothing in the zoning code prohibited skydiving on the agricultural property. Similar to enforcing an association’s restrictions, the court sought to determine whether there was a clear restriction. The court noted that the language of the zoning code does not “clearly” prohibit skydiving. The code does in fact allow commercial activities designated Large Scale Agricultural areas:

‘(B) Uses allowed: Land uses supportive of, and functionally related to, agricultural. . .activities;. . .

5. Supporting agriculture, aquacultural, and silviculture commercial uses shall be limited to the following: farm equipment sales and repair, kennels and veterinary services, sale of agricultural chemicals and supplies, rural neighborhood general or grocery store, feed sales, blacksmith and wood working shops, processing, storage, or sale of agricultural products; outdoor recreational activities such as hunting or fishing camps, bait and tackle shops, shooting ranges, and golf courses; travel trailer parks or campgrounds connected to outdoor recreational uses, riding or boarding stables; cemeteries, communications facilities, small engine repair, and welding shops.”

      The court pointed out that although the provision does not specifically include or exclude skydiving, skydiving may be permissible under “outdoor recreational activities.”

The appellate court stated by analogy, “golfers cannot hit six-irons very well from fairways of corn stalks, hayfields, or peanut and pine tree tows; nor are golf-ball-dodging fish and plants mass-harvested from the water hazards of golf courses.” The court expla-ined that there is really no difference between golf, which is permitted, and skydiving.

This case exemplifies the problems with writing an effective restriction, particularly when you use inclusive language (“such as,” “including”) or exclusive language (“not including”). Any questions regarding drafting restrictions should be directed to your association’s counsel.

Premises Liability: Landowner Has No Duty to Warn of Easily Avoidable Object Which Is in Plain Sight

What happens if someone trips over a large object, which is clearly visible while on an association’s property? Can the association be held liable for negligence? It may depend on whether the object is easily avoidable.

Recently, in a decision that would appear applicable and beneficial to Florida community associations, a Florida appellate court ruled that a landowner and store owed no duty to warn a customer of an easily avoidable obstacle. The facts of Brookie v. Winn-Dixie Stores, 42 Fla. L. Weekly D 752 (Fla. 1st DCA, April 4, 2017), indicate that a customer went to the Winn-Dixie Store to make a purchase and to obtain empty boxes. While the customer was at the store, a shipment of beer arrived stacked on a pallet between the entrance and exit doors. An empty pallet was sitting on the pallet jack’s prongs near the exit.

The customer repeatedly went in and out of the store, but on his third trip exiting the store, the customer tripped and fell over the empty pallet. The customer sued the store for negligently failing to warn of the dangerous condition and negligently failing to make the sidewalk safe. The trial court found that the store owed no duty to warn the customer of the pallet or prongs and granted summary judgment for the store. The trial court also found that the condition was not inherently dangerous because it was so open and obvious.

In a rare opinion finding no store liability without requiring a time-consuming trial, the District Court of Appeal agreed with the trial court’s decision. The appellate court explained that a business owner owes two duties to customers: (1) the duty to warn of concealed dangers, which are or should be known to the owner and, which are unknown to the invitee and cannot be discovered through the exercise of ordinary care; and (2) the duty to use ordinary care to maintain its premises in a reasonably safe condition.

First, the appellate court held that the store did not owe the custo-mer a duty to warn of the open and obvious pallet. “We hold here that [the store] did not violate any legal duty to [the customer], who observed the condition but was injured by failing to use due care for his own safety, when a reasonable person could have easily avoided the obstacle and thereby prevented injury,” the court stated. The customer actually admitted that he saw the empty pallet when he exited the store, but he took four more steps before tripping. On the three other times the customer exited the store, the customer successfully walked to avoid the pallet.

Second, the appellate court held that the store did not breach its duty to exercise ordinary care to maintain its sidewalk in a reasonably safe condition. And, a landowner does owe a duty to warn of a dangerous condition. But every time someone trips and falls on your property, it cannot be assumed that the landowner was negligent. The simple facts may show that the customer or invitee “tripped over their own feet.”

For associations, it may be prudent to routinely inspect common areas and common elements. Just because there is a slip and fall causing injury does not mean that the association is automatically liable for the damage. Usually photos and a report immediately following the incident assist in determining liability. Again, as most associations have discovered, post incident follow-ups rarely substitute for pre-incident inspections.

Michael J. Gelfand, Esq.

Senior Partner of Gelfand & Arpe, P.A.

Michael J. Gelfand, Esq., the Senior Partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a Florida Bar Board-Certified Real Estate Lawyer, Certified Circuit and County Civil Court Mediator, Homeowners Association Mediator, an Arbitrator, and Parliamentarian. He is the Chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at michael@flcaj.com or (561) 655-6224.