Can A Community Association Covenant Affect An Owners Right To Bear Arms? What Would The Late Justice Antonin Scalia Say? – March 2, 2017

Dated: March 2 ^nd, 2017

Introduction

Mr. Andrew Cuevas, Esq., is the President of Cuevas, Garcia & Torres, P.A., and Vantage Property Title Company. Cuevas, Garcia & Torres, P.A., provides legal services in the areas of Community Association Law, Corporate Law, Real Estate law, and Business Immigration, including title insurance services through Vantage Property Title Company. If you have any questions regarding this article or any other questions, you may contact Mr. Cuevas at (305) 461-9500 or via e-mail at [email protected]. If you are interested in reading previous newsletters, please visit www.cuevaslaw.com, select the icon for Newsletters , and then choose the area of law you are interested in.

Can A Community Association Covenant Affect An Owner’s Right To Bear Arms? What would The Late Justice Antonin Scalia say?

In today’s hyper-charged political environment, with extreme sensitivities of certain persons leading to un-kept promises of abandoning of this country and possibly moving to Mars because of disagreements with our political leaders, one of the challenges being faced in this “I need a Safe Zone” environment are constant attacks on 2 ^nd Amendment Constitutional rights, i.e., the right to bear arms. We have seen frequent requests placed on Board Members from their membership to curb or eliminate rights to carry arms within community associations, with one of the arguments being that the unique closed-quartered living arrangements in community associations require that persons not be allowed to own or carry fire arms. The case of George Zimmerman was related to that issue, since he was allegedly acting as unofficial neighborhood watch participant within a townhouse development when he had an altercation leading to the shooting death of Trayvon Martin. Zimmerman was found not guilty of criminal wrongdoing in the death however Martin’s family later sued the home owners association and supposed settled for close to or more than one million dollars.

So do community association restrictive covenants in State of Florida community associations still have to comply with United State Constitutional rights? The case of Shelly v. Kraemer, 334 U.S 1 (1948), concerned restrictive covenants that prohibited non-Caucasian persons from occupying the real property encumbered by the restrictive covenants. Prior to Shelly, the U.S Supreme Court had invalidated restrictive state laws and local ordinance that prohibited residential occupancy based on race.

Courts apply two tests to determine if a state born action has a U.S. Constitutional application which could override a local covenant, which are the “public function” test and the “state involvement” test. Under the public function test, state action will be found when the functions of a private individual or group are so impregnated with the governmental character as to appear municipal in nature (arguably just like a community association). Where the requirements of the public function test are met, the private activity under question will be subject to constitutional limitations. Under the state involvement test, there must be a sufficiently close nexus between the state and the challenged activity such that the activity may be fairly treated as that of the state itself.

With perhaps the limited exception for CDDs, is there reason for community association counsel to concern themselves as to whether the second Amendment to the U.S constitutions or Fla. Const. art. I, 8 are implicated by a covenant or board-made rule that limits or prohibits firearms? The answer appears to be yes; or at least, maybe.

Florida courts have held that restrictions contained in recorded covenants “will not be invalidated absent a showing that they are wholly arbitrary in their application, in violation of public policy, or that they abrogate some fundamental constitutional right.”

The late and GREAT, Justice Antonin Gregory Scalia, writing for the U.S. Supreme Court, once stated

“We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that the prohibition of handgun ownership is a solution. The constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the second amendment is outmoded in society where our standing army is the pride of our nation, where well trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this court to pronounce the second amendment extinct.”

In considering firearm regulation short of a complete ban, a community association would need to show that any proposed firearm restriction does not violate a fundamental constitutional right or violate public policy. Florida Statute 790.25(1) states “The legislature finds as a matter of public policy and fact that it is necessary to promote firearms safety and to curb and prevent the use of firearms and other weapons in crime and by incompetent persons without prohibiting the lawful use in defense of life, home, and property including the right use and own firearms for target practice and marksmanship on target practice ranges or other lawful places, and lawful hunting and other lawful purposes.”

There are other Florida statutory provisions that community Association which should be considered: F.S. §790.052 allowing law enforcement officers to carry firearms off-duty under certain circumstances; F.S. §790.06(12)(a)1-15 listing places where licensed persons cannot carry firearms, such as government buildings, schools, and churches; and F.S. § 790.251(4) forbidding any public or private employer to prohibit any customer or employee from possessing any legally owned firearm when locked inside or locked to a private motor vehicle in a parking lot and when is lawfully in such area. However, Florida law does not restrict the right on residential private property or shared-use facilities located within planned community developments.

I therefore agree with Justice Scalia (and who would not), that gun rights are inseparable from our rights to be present in the United States. For those community association thinking about restricting gun rights within their communities, we recommend that you think twice.

This article is solely a partial explanation of all the issues related to the topic of this newsletter, and is not to be considered legal advice. Associations who seek to determine their rights related to gun enforcement should consult with legal counsel. This Newsletter is for informational purposes only and should not be relied upon as a legal opinion.