Section 718.123(1), Florida statutes applicable to condominiums states that: "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 . . .The entity 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 officer or candidates for public office to appear and speak in the common elements, common areas, and recreational facilities."
Similarly, for homeowners' associations, Section 720.304 provides: All common areas and recreational facilities serving any homeowners' association shall be available to parcel owners in the homeowners' association served thereby and their invited guests for the use intended for such common areas and recreational facilities. The entity or entities responsible for the operation of the common areas and recreational facilities may adopt reasonable rules and regulations pertaining to the use of such common areas and recreational facilities. No entity or entities shall unreasonably restrict any parcel owner's right to peaceably assemble or right to invite public officers or candidates for public office to appear and speak in common areas and recreational facilities."
On Dec. 3, 2003, the Forth District Court of Appeals (4th DCA) affirmed a Broward County decision that found that the right to "peaceably assemble" does not extend to a right to assemble for religious purposes.
In the case of Neuman v. Grandview at Emerald Hills, two members (Neuman and Okner; "Owners") sued their condominium association over an association rule banning the holding of religious services in the auditorium of the condominium as being in violation of Section 718.123, Florida statutes.
Grandview is a large 422-unit condominium. Neuman and Okner reside at the condominium during the winter months as snowbirds. The auditorium of the condominium can be reserved by the members for social gatherings and meetings. In the past, the only reservations made for the auditorium on Saturdays were by individual members for birthday or anniversary celebrations.
In January 2001, several unit owners reserved the auditorium for Saturday mornings between the hours of 3:30 a.m. and noon. They said that they were reserving it for a party but were actually conducting religious services. About 40 owners gathered for the services.
Several other members discovered that religious services were being conducted and complained to the board of directors. In February, the board met to discuss the matter. The meeting became very confrontational between those members supporting the use of the auditorium for religious services and those opposed.
"Based upon the controversial nature of the issue, the board's desire not to have a common element tied up for the exclusive use of a minority of the members on a regular basis, and to avoid conflicts between different religious groups competing for the space, the board first submitted the issue to a vote of the owners. Seventy percent of the owners voted in favor of prohibiting the holding of religious services in the auditorium. The board then voted to unanimously to amend the rule governing the use of the auditorium. The new rule provided that no religious services or activities of any kind are allowed in the auditorium or any other common elements."
In suing the association for an injunction to "not enforce the rule", Neuman and Okner alleged that not only did the rule prevent holding religious services; it also prohibited the use of the auditorium for holiday parties including Christmas and Chanukah, based upon the rule's prohibition against using the common elements "for religious activities of any kind."
The trial court agreed that prohibiting the auditorium for religious activities of any kind went too far and granted an injunction prohibiting the enforcement of the part of the rule. The association then amended the rule to limit the prohibition to the "holding of religious services" in the auditorium.
At the hearing on the owner's motion for a permanent injunction against the rule prohibiting all religious services, the owners' argued that religious services fell into the category of a "peaceable assembly" and a categorical ban on the holding of religious services was per se unreasonable.
Grandview maintained that it had the right to restrict the use of its common elements. Because the right of peaceable assembly did not mandate a right to conduct religious services, it had the right to poll its members and restrict the use based upon the majority's desires. As such, Grandview maintained the exercise of this right was reasonable.
In denying the injunction, the trial court determined that because no state action was involved, the unit owners' constitutional rights of freedom of speech and religion were not implicated by Grandview's rule and there was no violation of Section 718.123, Florida statutes because the association had the authority to enact this reasonable restriction on the use of the auditorium.
In agreeing with the trial court, the 4th DCA looked at the statutory test for rules regarding the operation of the common elements of the condominium which is "reasonableness".
"The trial court found the rule preventing the use of the auditorium for religious services was reasonable in light of the board's concern of a serious potential for conflict of use which could arise among competing religious groups. Having polled the members and determined that a majority of the members approved the ban, the board's rule assured that the auditorium was available to unit owners in the condominium or condominiums served thereby and their invited guests for the use intended in accordance with the statute."
Although Neuman and Okner argued that a categorical prohibition of all religious services exceeds the board's powers, as the right to meet in religious worship would constitute the right to peaceably assemble, the 4th DCA cited to a U.S. Supreme Court case from 1875, United States v. Cruikshank which found that "the right to peaceably assemble has traditionally been interpreted to apply to the right of the citizens to meet to discuss public or governmental affairs."
The 4th DCA went on to say that even if for arguments sake the right to gather for religious worship is a form of peaceable assembly, the rule on bans a particular form of assembly; not all right to assembly. The statute itself permits the reasonable regulation of the right to assemble and therefore "prohibition those types of assembly which will have a particular divisive effect on the condominium community is a reasonable restriction. . . The board found that permitting the holding of regular worship services and the competition among various religious groups for the use of the auditorium would pose such conflict."
Although this case stands for the proposition that an association board can enact a rule to prohibit regular religious services on common areas, it does not mean that another board in another association could not have a rule that permits religious services on its common areas. For some associations, such use of the common areas for religious services may not be controversial at all. If an association might wish to allow religious services on its common areas, it should review same closely with competent legal counsel as other issues need to be taken into consideration, such as whether such religious service use (without appropriate parameters and restrictions) could deem the common area facility to be a place of public accommodation. Such a public accommodation designation could have adverse costly effects on the association.
Rob Samouce, a principal in the Naples law firm of Samouce, Murrell, & Gal, P.A. concentrates his legal practice in the areas of community associations (including condominium, cooperative and homeowners' associations), real estate transactions, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.