Q: While current Florida law permits the use of fireworks 3 days a year, what, if anything, can an HOA do to restrict residents setting off fireworks within their community? In addition to the disruption of neighbors and the effect on many pets, the possibility of fires and projectiles landing on other homes seems like a serious concern. (R.R., via e-mail)
A: Section 791.08 of the Florida Statutes applies to only homeowners’ associations, not condominium or cooperative associations. This law states that fireworks may be lawfully used on certain “designated holidays,” defined as: New Year’s Day, January 1; Independence Day, July 4; and New Year’s Eve, December 31. The statute specifically prohibits a homeowners’ association board from adopting rules that attempt to restrict the display of fireworks on a designated holiday or under general law. However, the statute goes on to provide that its intention is not to supersede any local regulations related to the use of fireworks or properly recorded declaration of covenants for homeowners’ associations subject to the Florida Homeowners’ Association Act.
Therefore, a declaration provision can regulate or prohibit the use of fireworks, though a board rule cannot. Many declarations contain a general prohibition against “nuisances.” A nuisance can generally be defined as a substantial and unreasonable interference with another’s quiet possession or enjoyment of his or her private property. While the adoption of this statute arguably supports the position that it is not unreasonable (or a nuisance) to ignite fireworks on these designated holidays, given anticipated and potential secondary effects from fireworks noted above, the nuisance argument is a theory that could be tested and possibly succeed in court.
There may also be an opportunity to seek enforcement of local regulations. Further, if the declaration prohibits “unlawful use” of property, this is another possible avenue for the association to address the issue as a violation of the declaration. For example, Lee County’s Fireworks and Sparklers Ordinance prohibits individuals or entities from using, exploding, or storing fireworks unless an appropriate County permit is obtained. Any person or entity who violates the Ordinance may be subject to criminal sanctions under Chapter 791, Florida Statutes. Thus, a person exploding fireworks without a County permit is violating the law.
In light of the statute, an amendment to the declaration of covenants is the most straightforward way to address the issue, especially in locales where local government fireworks regulations are not in place.
Q: I sent a request to review official request to review my association’s records association and was able to go look at them. They presented me with a bill for the time needed to gather the records. Can the board make me pay to look at our records? (J.K., via e-mail)
A: The Florida Condominium Act does not generally authorize a condominium association to recover costs to retrieve requested records, although reasonable charges for copying may be imposed if the member requests copies of documents they have inspected.
The Florida Homeowners’ Act provides that a homeowners’ association may impose fees to cover the cost of providing copies of the official records, including the cost of copying and the costs required for personnel to retrieve and copy the records, if the time spent retrieving and copying the records exceeds one half hour, and if the personnel costs do not exceed 20 dollars per hour. Personnel costs may not be charged for record requests that result in the copying of 25 or fewer pages. The association may also charge up to 25 cents per page for copies made on the association’s photocopier.
Joseph Adams is a Board Certified Specialist in Condominium and Planned Development Law, and an Office Managing Shareholder with Becker & Poliakoff.