Q: My association has a rule that states that dogs should be "properly leashed and not run loose." Pets must be "kept inside at all times except when being walked" and are "not to be chained in any of the common areas". After finding my dogs in the back yard and barking, the association fined me stating that "pets must be kept inside at all times". The association also stated that the dogs were a "nuisance" and were "disturbing the peace". I do not think that the Association's rule forbids dogs from being in the backyard. What is your opinion? T.J. (via e-mail)
A: In 1940, the Supreme Court of Florida held that the barking, yelping, scratching and/or growling of dogs may constitute a "nuisance", especially when such conduct disturbs others, causes loss of sleep, or annoys or prevents others from the possession and enjoyment of their property.
Most associations have provisions in their governing documents which prohibit nuisances. Florida law generally defines "nuisance" as a condition which annoys or disturbs another in the free use, possession or enjoyment of his or her property or which renders the property's ordinary use or occupation physically uncomfortable. To prove the existence of a nuisance, there must be a substantial and continuous or recurring harm. A mere annoyance is not sufficient. Also, the effect of the nuisance will be tested against an ordinary reasonable person with a reasonable disposition, in ordinary health, and possessing average and normal sensibilities.
In essence, the courts will not afford protection to the hypersensitive individual. While it is common for dogs to occasionally bark, consistent loud barking could be deemed a nuisance, supporting the Association's decision to pursue a fine. Of course, you are entitled to a hearing before a fine can be imposed to present "your side of the story."
Restrictions against the free use of property are disfavored in the law, and any ambiguity would be construed in your favor. However, the court is obligated to construe the rule as a whole. While you might argue that the prohibition against "chaining" dogs on common areas permits you to keep dogs in your yard, the rule also states that pets must be kept inside at all times except when being walked.
Similarly, the association could argue that having the dogs in the backyard is considered letting them "run loose" which is also prohibited by the rule. I think the association has the better case.
While rules such as this may seem harsh, they are intended to protect neighbors who may not be dog-lovers from what you might consider acceptable noise, and to reduce the potential that a dog bite will occur. The Florida courts have held HOA's liable for dog bites occurring on common property when the association has not taken appropriate steps to address a problematic animal.
Q: We would like to play bingo or have "50/50" drawings to increase funds for our association's social committee. Is this legal? M.L. (via e-mail)
A: Playing bingo games is lawful as long as the games comply with the law. Section 849.0931(4) of the Florida Statutes specifically allows associations to conduct bingo games. However, the statute contains certain guidelines. The guidelines state that the net proceeds from the bingo game must be returned to the players in the form of prizes.
This would prevent the bingo game from increasing the funds available for the association's social committee because the only funds that can be deducted are the "actual business expenses for such games." The bingo statute also places restrictions on prize amounts, the number of bingo games that can be played, and who can conduct the game.
"50/50 drawings" are, technically speaking, illegal. Section 849.09 of the Florida Statutes makes it unlawful for any person to promote or conduct a lottery for money or anything of value. While there are some exceptions permitting drawings of chance conducted by certain "organizations," the statute defines "organization" as an organization which is exempt from federal income taxation. Therefore certain religious, charitable, or similar organizations would qualify for the exception, and could hold such raffles.
However, condominium, cooperative and homeowners' associations, and by implication, committees thereof, are not tax exempt, and thus could not lawfully hold such drawings.
Joseph E. Adams has practiced law in Southwest Florida for 30 years, and spent the past 28 years focusing his entire practice on condos and homeowner associations. His firm represents more than 4,000 associations in Florida, including some 1,000 associations in the Southwest Florida market. He personally serves as counsel to a number of condo associations on Marco Island.