Are law enforcement vehicles subject to Community Association “commercial vehicle” bans?

Clinton Morrell

Clinton Morrell

One common provision in homeowners association’s and condominium association’s governing documents is a prohibition against the keeping of “commercial vehicles” within the community. These prohibitions on commercial vehicles, like many other typical provisions in community associations’ governing documents, are well intentioned and meant to preserve the residential character of the community. However, these provisions can give rise to difficult questions regarding what types of vehicles fall within the definition of a “commercial vehicle,” as the governing documents frequently do not define the term. For instance, an owner may claim that an Association may not prohibit her from keeping a tow truck in her driveway while at the same time allowing her neighbor, a police officer, to keep her assigned patrol car in the community. The Association may have very valid reasons, such as the projection of safety and deterrence of crime, for desiring to allow the patrol car to be located in the community while prohibiting obviously commercial vehicles, such as the tow truck example.

Fortunately, not all vehicles which are used for some work purpose are considered “commercial.” Courts utilize the ordinary dictionary definition for “Commercial” and “Vehicle,” to determine the meaning of the combined term “commercial vehicle.” Cottrell v. Miskove, 605 So.2d 572 (Fla. 2d DCA 1992). Black’s Law Dictionary (specifically referenced by the Cottrell decision), defines “commercial” as “[o]f, relating to, or involving the buying and selling of goods; mercantile” or “[e]mployed in trade; engaged in commerce.” “Vehicle” is defined as “an instrument of transportation or conveyance.” Thus, in order vehicle to be considered a “commercial vehicle,” it would need to involved in “the buying and selling of goods,” or be “employed in trade,” which is not the ordinary function of a patrol car or other similar government vehicles.

On June 16, 2005, Florida’s Attorney General promulgated an advisory legal opinion addressing the issue within the context of a homeowners association’s restriction. The attorney general opined:

A marked police vehicle does not constitute a vehicle with reference to a commercial undertaking or enterprise. The term “commercial” has been generally defined as meaning “mercantile; occupied with commerce, relating to or dealing with commerce … derived by commerce or trade; engaged in trade; having financial profit as the primary aim.”[1] The Florida Statutes contain various definitions of commercial vehicles. Section 320.01(26), Florida Statutes, in defining a “commercial motor vehicle” for purposes of licensure, specifically excludes vehicles which are owned or operated by a governmental entity.[2] Section 403.413(2)(f), Florida Statutes, defines a “commercial vehicle” as “a vehicle that is owned or used by a business, corporation, association, partnership, or sole proprietorship or any other entity conducting business for a commercial purpose.” A “commercial purpose” is defined to mean “for the purpose of economic gain.”[3]… Op. Fla. Att’y Gen 2005-36.

These authorities support the position that a community association is permitted to prohibit obviously commercial vehicles, while at the same time allowing law enforcement officers, and potentially other similarly situated government employees, to keep their official vehicles within the community. However, this analysis can be altered by the language in a particular community association’s Declaration, and it is important that your community’s governing documents be structured to operate as intended.

If you are in doubt about the meaning or function of any provision of your community association’s governing documents, Shumaker’s community association practice group is available to assist you to interpret, or if necessary amend, the subject provision to ensure that it operates as you and your neighbors intend.