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Can I Get a Restraining Order?

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Over the past few years there seem to be more communities with persons who are threatening, being aggressive, or even stalking board members and/or the association’s manager. In those cases where the person acting in a threatening manner is not an owner, such as a tenant, an occupant, or a guest, then the association may be able to evict or require the owner to evict or remove the person who is a threat. However, if the person who is acting in the threatening manner is an owner, then Florida case law provides that the owner cannot be removed from his or her home for these actions. So, what is a board member or manager to do?

If there is imminent fear of violence, the police should be called.  Another option may be for the threatened individual to obtain a restraining order.  Section 784.046, Florida Statutes, allows an individual to obtain an “injunction for protection” or “restraining order” if the individual is a victim of “repeat violence.”

Section 784.046, Florida Statutes, provides:

  • “784.046 Action by victim of repeat violence, sexual violence, or dating violence for protective injunction; dating violence investigations, notice to victims, and reporting; pretrial release violations; public records exemption.—
    • (1) As used in this section, the term:
      • (a) ’Violence’ means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.
      • (b) ’Repeat violence’ means two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.”  (Emphasis added).

Unfortunately, one incident of violence is not sufficient, there must be two incidents of violence in order to obtain a restraining order. The lowest level of violence under this statute is an assault.

An assault is defined as:

  • “784.011 Assault.—
    • (1) An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.”

If you have experienced, or believe you have experienced, any of these types of violence on more than one occasion from the same person, then a restraining order may be an option. A violation of the restraining order could then result in jail time if the aggressor violates the provisions of the restraining order.

A board member, manager and employee of an association can also be proactive if they are being threatened by a resident.  In one Florida case, the Third District Court of Appeals found that an action by an association to prevent future acts of physical violence or threats of violence against the association, its board of directors, association employees, as well as other residents of the association was enforceable by filing a lawsuit for injunctive relief.  The violation was based upon language in the Declaration which prohibited any use or practice which interfered with the peaceful and proper use of the property by its residents.  Therefore, the individual being threatened could file an action for injunctive relieve or ask his/her association to step in and file such an action.

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