Community Associations and the Second Amendment

by Shumaker, Loop & Kendrick, LLP
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The Second Amendment to the United States’ Constitution guarantees individuals the right to keep and bear arms. The Florida constitution contains a similar guarantee. With few exceptions, Florida law allows licensed individuals to carry concealed firearms in most public locations. Based on these constitutional and statutory rights under U.S. and Florida law, many owners residing in community associations believe that they also have the right to conceal-carry firearms when on their community’s common elements. In the absence of a provision in the community association’s governing documents, owners may exercise their lawful right to carry concealed firearms on common elements. However, who prevails when an owner’s constitutional and statutory rights conflict with a community association’s attempts to regulate the carrying and use of firearms on its common elements?

Generally, a community association’s power to regulate use of common element property “…may be exercised so long as the exercise is reasonable, is not violative of any constitutional restrictions, and does not exceed any specific limitations set out in the statute or the condominium documents.” Juno by the Sea North Condominium Ass’n (The Towers), Inc. v. Manfredonia, 397 So.2d 297, at 302 (Fla. 4th DCA 1981). Given the commonplace nature of limitations on firearms imposed in other places either by private property owners or state and federal law (schools, churches, bars, etc.), a Court would likely determine that limitations on concealed-carry of firearms on a community association’s common elements is reasonable. In GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1265 (11th Cir. 2012), the Eleventh Circuit Court of Appeals ruled that “An individual’s right to bear arms as enshrined in the Second Amendment, whatever its full scope, certainly must be limited by the equally fundamental right of a private property owner to exercise exclusive dominion and control over its land.” Based on this holding, a Court would also likely determine that a community association prohibition on concealed-carry firearms on common element property is not violative of owners’ second amendment constitutional rights. As noted above, Florida law currently does not, as a general matter, prohibit an owner of private property from regulating the use of firearms on its property. Accordingly, absent a provision in the community association’s own governing documents establishing a right of owners or guests to conceal-carry on common elements, we believe that a community association may generally regulate such use.

Notwithstanding the general ability of community associations to regulate firearms on common element property, such regulations should be drafted with the community association’s particular circumstances in mind. For instance, Fla. Stat. § 790.251 prohibits employers from preventing its employees, contractors, volunteers, or other invitees from keeping a firearm in a locked vehicle in a parking lot on the employer’s property. To the extent a community association has employees, Fla. Stat. § 790.251 may apply to require the community association to allow its employees, contractors, volunteers or other invitees to keep firearms in their vehicles. Additionally, regulations on firearms should be carefully drafted to ensure that the regulations are proper in scope. For example, if the community association’s regulations on firearms are so broad as to affect an owners ability to transfer and keep firearms in his or her home, the regulation could be seen as impermissibly preventing an owner from exercising his fundamental constitutional right to maintain firearms in the home for personal defense (as established by the U.S. Supreme Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008)), which may subject the rule to invalidation under the Juno by the Sea North Condominium analysis.

Although a community association is generally authorized to regulate the carrying and use of firearms on common element property, the validity of a particular regulation will be dependent on several factors discussed above. Accordingly, we recommend that a community association seeking to impose regulations on firearms consult with legal counsel to ensure that the regulation is thoughtfully drafted and will withstand scrutiny if challenged.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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