Community Associations, Guns & Concealed Carry:
The Florida Legislature recently passed Senate Bill 150 which amended many existing firearms statutes, and notably authorizes the right to carry a concealed firearm without a permit. This new law, codified in Section 790.01 of the Florida Statutes, will go into effect on July 1, 2023. The authorization for concealed carry without a permit clearly signals Florida’s intention to strongly protect the Second Amendment and self-defense rights of Floridians.
However, this authority is not unlimited. The United States Supreme Court and state courts have previously upheld the individual rights of property owners to decide whether firearms will be permitted on their private property. Accordingly, it is our opinion that community association members have a similar right to amend their governing documents to restrict the possession of firearms on the common areas of community property, if desired, as the members of homeowner and condominium associations, directly or indirectly, each own a proportionate share of the common areas. Whether or not the Board of Directors may independently adopt such restrictions is not as clear, but it is also our opinion that Board adopted rules controlling the possession of firearms on the common areas should be enforceable as reasonable restrictions implemented for the health, safety and welfare of the residents.
In summary, it is our opinion that community associations are authorized to restrict the otherwise lawful possession of concealed firearms on the common areas by voting to amend the governing documents or, provided that a Board of Directors has strong rulemaking authority, by adopting reasonable rules and regulations. However, it is important to note that such restrictions, as applied to individual homes, vehicles, and any common areas that serve as a conduit between those spaces, would likely be deemed unenforceable.
In addition, associations should consider the potential liability exposure that attaches whether the Board of Directors votes to allow or restrict possession of firearms on the common areas. In communities that allow firearm possession, Boards should consider whether existing insurance policies would cover scenarios resulting in firearm injury, including intentional discharge by members permitted to have their firearm on the premises, incidents of accidental misfire, and other negligent handling that results in injury or damage. In communities that prohibit firearms on the common areas, courts may determine that in doing so the association has adopted the duty to ensure that weapons are not brought onto the premises (i.e. metal detectors) or otherwise ensure the safety of the common areas, and the association may face liability in circumstances where an owner would have otherwise been authorized to act in self-defense, but such right was restricted by the association’s prohibition.
As this is a complex and developing area of the law, which is subject to change every Legislative session, be sure to consult with your association’s legal counsel for assistance in drafting any proposed amendment or regulation relating to the possession of firearms in your community. Your counsel should be able to properly navigate the legal landscape to assist your association with exercise of private property rights without unintentionally violating clearly articulated individual rights protected by Florida law.
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