A group of owners at the Grandview At Emerald Hills condominium began holding religious services in the condominium’s auditorium. In response, the association adopted a rule prohibiting such use and a lawsuit was born.
    It seems that the use of the common element auditorium for religious services bothered a large segment of the community and, as a result, they asked the board to adopt a rule prohibiting such use. In turn, the board submitted the matter to the complete membership for a straw vote, which resulted in 70% of the members voting to ban such use. Accordingly, the board adopted a rule providing that 'no religious services of any kind are allowed in the auditorium or any other common elements'.
    Soon thereafter, a lawsuit was filed claiming that the rule violated both protected constitutional rights and Section 718.123(1), Florida Statutes, which provides for the 'right to peaceably assemble'.
    That statute reads as follows:
    1) All common elements, common areas, and recreational facilities serving any condominium shall be available to unit owners in the condominium or condominiums served thereby and their invited guests for the use intended for such common elements, common areas, and recreational facilities, subject to the provisions of s. 718.106(4). The entity or entities responsible for the operation of the common elements, common areas, and recreational facilities may adopt reasonable rules and regulations pertaining to the use of such common elements, common areas, and recreational facilities. No entity or entities shall unreasonably restrict any unit owner's right to peaceably assemble or right to invite public officers or candidates for public office to appear and speak in common elements, common areas, and recreational facilities. (Emphasis added.)
    Section 720.304(1), which applies to homeowners’ associations, contains virtually identical language protecting the 'right to peaceably assemble' on the common areas of the community.
    After a full hearing, the Court came to the following two conclusions:
    1. The Constitutional rights of freedom of speech and religion did not apply because this rule was adopted by a condominium association, not by a governmental agency; and
    2. The rule did not violate Section 718.123(1)
    Let me address each of the Court’s conclusions:
    A. Applicability of Constitution
    The question of whether actions taken by condominium and homeowners associations are limited by the protections contained in the Constitution is a question that has never been definitively answered in Florida. The Florida state courts have routinely found that no such limitation exists (i.e. no constitutional right to have a sign) and this case merely follows that line of cases. On the other hand, some federal judges have either expressly stated that such limitations exist or, at a minimum, have applied such limitations to the cases before them (i.e. can’t forbid the display of an American flag). Some day we will get a final answer; however, until then, we suggest that you follow the logic of the state courts.
    B. No Statutory Violation
    More important to this matter was the Court’s decision that a rule prohibiting religious services did not violate Section 718.123.
    To arrive at that conclusion the Court used the following logic:
    1. Traditionally, the right to peaceably assemble has been interpreted to apply to the right of citizens to meet to discuss public or governmental affairs.
    Therefore, religious services are not protected.
    2. However, even if they did constitute such assemblies, the rule is reasonable and therefore enforceable. The Court noted that all rules must be reasonable (a fact specifically provided for in the subject statute). The Court then noted the results of the board’s straw ballot and accepted the board’s stated concern for a serious potential for conflict of use which could arise among competing religious groups. Therefore, based on the totality of the facts, the court held the rule to be both reasonable and enforceable.
    It would seem that the same logic would apply to homeowners’ associations.
    As a note of caution, this is the first and only case of which I am aware that deals with this subject. In addition, this case was decided by the Fourth District Court of Appeal (Broward County) and is not necessarily binding on courts in other Districts.
    Notwithstanding these limitations, the logic of the case appears sound. Therefore, this case is worth remembering when drafting rules relating to the use of common elements and common areas.
The firm of Taylor & Carls, P.A., with offices located in Maitland, Melbourne and Daytona Beach, Florida, was founded in 1981 and has practiced in the area of community association law since that date. This edition prepared by Robert L. Taylor, a partner of Taylor & Carls, P.A. The information contained in The Association e-Lawyer should not be acted upon without professional legal advice.

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