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Can Pool Remain Closed?

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Q: My condominium association board voted to close the swimming pool in late March due to the COVID-19 threat. A few days later Governor DeSantis signed the “Stay at Home” Order and specifically defined “swimming” as an essential activity. Does this mean that my condominium’s swimming pool closure is overturned by the Governor’s Order? R.W.

A: No, the swimming pool closure ordered by the board of your condominium association is not overturned by Governor DeSantis’ “Stay at Home” Order.

On April 1, 2020 Governor DeSantis signed Executive Order Number 20-91 (“Order 20-91”). Section 1(A) of Order 20-91 directs senior citizens and citizens with significant underlying medical conditions “to stay at home and take all measures to limit the risk of exposure to COVID-19.”    Section 1(B) of Order 20-91 directs that “all persons in Florida shall limit their movements and personal interactions outside of their home to only those necessary to obtain or provide essential services or conduct essential activities.”

Section 2 of Order 20-91 defines “essential services” by incorporating guidance issued by the U.S. Department of Homeland Security, Executive Order 20-89, and further leaves open the opportunity for other “essential services” to be added to the foregoing list. As of the date of submission of this column, the list of “essential activities” has not been further expanded by subsequent order.

Section 3 of Order 20-91 also allows people to engage in “essential activities”, which are specifically defined as including: “participating in recreational activities (consistent with social distancing guidelines) such as walking, biking, hiking, fishing, hunting, running, or swimming…”

My position remains that since community associations are located on private property their boards have legal authority, based on various statutes and their own governing documents, to adopt additional, more restrictive protocols than those imposed by the government to address the COVID-19 threat.  As such, the Governor’s inclusion of swimming as an “essential activity” does not mean that all community association swimming pools, which were previously closed, must now be reopened. It should also be noted that Order 20-91 does not attempt to take away or limit the emergency powers community association boards have to adopt restrictions to protect the residents in their community.

Q: If an association board becomes aware of an individual who is violating one of the Governor’s Orders pertaining to self-isolation, what should be done? B.T.

A: The Governor’s Office has issued certain Frequently Asked Questions” (“FAQ”) relating to his recent Orders, including Order 20-91 referenced in the preceding question. On the topic of enforcement, the FAQ confirms that “law enforcement” will enforce the respective Orders. It should also be noted that violation of the Governor’s various Executive Orders is a second-degree misdemeanor.

If Association representatives become aware of violations of governmental orders, a suggested first step is to inform the individual that they are in violation. Hopefully this will result in compliance. If it does not, you can report the violation to local law enforcement and/or the Florida Department of Health. The phone number for the Florida Department of Health is (866) 779-6121.

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