Community associations are sometimes faced with determining whether they can prohibit a sexual offender or predator from living in a community or from using common area facilities, such as a clubhouse, or whether they have a duty to notify members of the existence of a sexual offender or predator living in the community.
In determining whether a community association has any right to prohibit a sexual offender or predator from living in its community, its governing documents must be reviewed. Some associations’ governing documents may include restrictions on sexual offenders or predators living in the community, while others may only include restrictions on their use of certain common area facilities such as the clubhouse, and some may be silent on this issue and not give an association authority to prevent any such person from living in the community or from using common areas facilities.
An association may not prohibit a tenant from living in its community or deny someone access to common area facilities solely based on the person’s status as a sexual offender or predator if there is nothing in the association’s governing documents that authorizes it to do so. However, if an offender is subject to supervision by the Department of Corrections and, as a condition of probation, is unable to visit areas frequented by children, an association may be able to restrict the offender’s usage of the clubhouse or park by contacting law enforcement. On the other hand, if the offender is no longer under any form of confinement, supervision, or any other court imposed sanction, the offender has the same use rights to the clubhouse as any other member.
Community associations do not have a duty to notify members of the existence of a sexual offender or predator living in the community. While a community association has an obligation to protect its members from reasonably foreseeable harm resulting from criminal activity, that duty must be balanced against the individual rights of a sexual offender or predator. One approach an association can take is to notify members of the existence of the Florida Department of Law Enforcement’s sexual offenders and predators database, either by newsletter or by posting it on the association’s website, and allow members to take it upon themselves to review the database and determine if a sexual offender or predator is living in the area. See §§ 775.21(7) and 943.0435(2), Fla. Stat. Keep in mind that if an association notifies its community of the presence of a sexual offender or predator, it is a first degree misdemeanor to knowingly distribute or publish false information relating to an offender or predator, or to materially alter public records information with the intent to misrepresent the information. See § 775.21(10)(c), Fla. Stat. Since law enforcement agencies are responsible for informing the public of a sexual offender or predator’s presence, if members have questions as to the rights and restrictions of such a person, the Association should advise them to contact law enforcement. This eliminates the association’s potential exposure to liability for misusing public records information, as all the association has done is advised its members of the publicly available information. This approach also shows that the association has taken steps to protect its members from potential criminal activity. Bear in mind that residents may have mixed feelings as to public postings; some believe public postings help raise awareness of a potential danger while others believe they hurt resale values or make the community less desirable due to the presence of a sexual offender or predator.
If a community association is considering amending its governing documents to include a restriction prohibiting sexual offenders or predators from living in its community, keep in mind that the enforceability of such a provision is suspect due to the lack of case law on this issue. It is possible that a restriction that prohibits sexual offenders or predators from purchasing a home in a community would not be upheld by the courts, or worse, expose an association to a potential civil rights claim. While courts may be reluctant to enforce a deed restriction preventing sexual offenders or predators from living within a community, as of this date, there is nothing which would indicate that such a provision within a declaration is unlawful or prohibited. However, given the myriad of constitutional and societal implications involved, we advise community associations to consult counsel to discuss these issues further.
For more information on this topic, contact attorney Monica Johnson at mjohnson@slk-law.com.