By Ryan D. Poliakoff / Published August 2016
I live in a community governed by an HOA in Pembroke Pines, and it is a gated community. We do not let anyone in without a Florida driver’s license. This poses a big problem, as homeowners have relatives and friends from other states and countries who come to visit, and they are being denied entry because they do not have a Florida driver’s license. Service vendors, such as Comcast or ATT, are also being denied entrance because they now all have company IDs and are told by their employers not to show their driver’s licenses. This was done to prevent identity theft. The IDs all have a photo and the name of the technician, an ID number, and the name and address of the company. All technicians wear company uniforms and drive company vehicles. Visitors from other states and countries have either the state or country license, passport, or an international license. Our HOA board will do nothing to alter this rule, and the guards at the gate house have to do as the HOA board instructs them. Is this legal? Isn’t this discrimination, and shouldn’t the required ID document be any valid photo ID and not just a Florida driver’s license? Our bylaws state nothing about entry requirements.
I doubt that your HOA’s policy is legal. I’m not even confident it would be legal if it were a rule found in the declaration of covenants. I have never heard of such a policy in another community, and I’m amazed, frankly, that the residents haven’t revolted against the board of directors.
First, you ask if the rule constitutes discrimination. I do think, to the extent that the guest is not from the United States, you have a Fair Housing Act problem, because the Act prohibits discrimination on the basis of national origin. While the policy you describe does not expressly discriminate on that basis (a person could be born in another country and still have a Florida driver’s license), it certainly has an adverse effect on foreign-born persons, and therefore the policy is likely illegal on that basis alone. But, even as it applies to persons who are simply visiting from other states, there are a host of issues. There’s no question that community associations have an interest in controlling access to the community for security reasons, but that right has to be balanced against the owners’ general easement rights for them and their guests and licensees to access their home.
Rules in homeowners associations and condominiums are governed by two different standards under Florida law. Rules found within the declaration of covenants are given a broad presumption of validity, unless they are wholly arbitrary in their application, violate public policy, or violate some fundamental constitutional right. Rules and regulations made by the board of directors, in contrast, are only enforceable if they are reasonable, and the interests of the association must be balanced against the rights and freedoms of the owner.
In my opinion, the restriction you describe may fail both tests. For ordinary purposes in all spheres of life, government documents from different states and countries are accepted as proof of identification. If you can fly on an airplane with an ID from another state, is it really reasonable to restrict access to a housing community due to the lack of a state ID? Your homeowners association is not a police state, and the HOA is not guaranteeing your security. Their only legitimate interest is to prevent people who are not authorized to enter the community from entering without permission. But if you, as an owner, grant permission to someone to visit your home, and if they have a legal form of identification showing that they are the person you have authorized, that should be sufficient. Consider, also, that your gate attendants are not trained to identify false identification, so a person could conceivably be rejected from entering your community with a real driver’s license from another state, but a person with a fake Florida ID would be granted access. In fact, I don’t even think it would be enough for the association to amend their rule to accept all valid driver’s licenses. I think they would also need to accept non-driver’s IDs, foreign passports, and, arguably, even company identification (given the situation you described with companies like Comcast). Again, a judge would be doing a reasonableness analysis, and the association’s interests here do not balance well against your general right as an owner to have guests visit your property.
Even under the more stringent test for covenants, I think your policy would not pass muster. The right to have guests visit your own property is a very basic right, and my gut feeling is that it would violate public policy to restrict guests with valid forms of government identification from entering the community. Sometimes, the outcome of cases comes down to a “smell test,” and when you combine the impact of the restriction with the fair housing concerns, I simply don’t see a judge signing off on your policy.
Perhaps an amended policy would pass muster—for example, requiring an owner to escort guests who do not have a valid Florida ID. Even that, however, seems unduly stringent, and I would not want to be representing your HOA if the issue ever went to trial.
Ryan D. Poliakoff
Partner of Backer Aboud Poliakoff & Foelster
Ryan D. Poliakoff is a Partner of Backer Aboud Poliakoff & Foelster and serves as general counsel to condominiums, homeowners associations, and country clubs throughout South Florida. He is the co-author of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op, and HOA Living. In addition to representing associations, he is a frequent contributor at seminars and workshops for attorneys and board members, and he has written hundreds of articles for magazines and newspapers throughout the United States. He can be reached at email@example.com. For more information about his firm, visit www.bapflaw.com.