A new law, effective April 8, 2020, prevents an HOA from enforcing or adopting rules that ban fireworks on the Fourth of July, New Year’s Eve and New Year’s Day.

NAPLES, Fla. – Question: Is it legal to use fireworks in an HOA (homeowners association) community on New Year’s Eve? – A.B.

Answer: Your inquiry is very timely, not only because the New Year’s Eve holiday is coming up but also because there is a new law impacting this issue.

Under Florida law, sparklers and similar devices are legal for Floridians to purchase while “firecrackers, torpedoes, skyrockets, roman candles, dago bombs, and any fireworks containing any explosives or flammable compound or any tablets or other device containing any explosive substance” are generally off-limits.

There is a loophole which allows certain otherwise prohibited fireworks to be purchased if a waiver is signed by the purchaser confirming their agreement to use the fireworks for certain agricultural purposes, including “frightening birds from agricultural work and fish hatcheries.”

The new law, effective as of April 8, 2020, prevents a homeowners association from enforcing or adopting rules that ban the use of fireworks on the Fourth of July, New Year’s Eve, and New Year’s Day. That means that for this upcoming New Year’s Eve and New Year’s Day, a homeowners association board can no longer adopt rules which prohibit an owner’s right to use fireworks.

There remains an open question, however, as to whether this new law invalidates board rules adopted before April 8, 2020. Under the new law, a homeowners association may have a complete or partial restriction against fireworks (even on a “designated holiday”) if the restriction is contained in the recorded declaration, or a properly recorded amendment to the declaration.

It should also be noted that this new law only impacts homeowners associations and not other types of community associations, such as condominium associations. Also, this new law does not supersede other firework restrictions or laws, including any firework restrictions implemented by local governments.

Question: Is there a way to approve amendments to the governing documents without holding a membership meeting? – T.B.

Answer: Setting aside the issue of whether virtual membership meetings are legally permissible given the threat posed by the pandemic, approving amendments by written consent in lieu of a meeting is legally permissible if authorized by the community association governing documents. Owner approval of an action via the written consent process (sometimes called the “written consent and joinder” process) is a relatively common provision found in many governing documents.

The written consent process does come with certain administrative hurdles. There are statutory formalities which must be complied with in order to approve an action by written consent in lieu of a meeting. Failure to adhere to these statutory requirements could invalidate the members’ approval.

The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this column does not create an attorney-client relationship between the reader and Becker & Poliakoff, P.A. or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.

© 2020 Journal Media Group. David G. Muller is a Board-Certified Attorney in Condominium and Planned Development Law with Becker & Poliakoff, P.A. in Naples.

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Author: kerrys