The Law Enforcement Officers Safety Act

[CapnMac]

There is rather a lot of assertions about HOAs above.
The reality of HOAs vary from State to State, and often development to development within a given State.
Further, the date of enaction of the HOA has high significance as well. As some factors in how an HOA is allowed to operate are defined by that enaction date.
Note that many (but no where near all) Condominium Owners' Associations have similar strictures under the several States' laws.

There is a new (as in since about 2001) fillip in "HOA law" where the HOA owns some fraction (2% being typical) of all the property in the development. This gives the HOA the power to dispossess residents through foreclosure for violations of the HOA bylaws/authority. Thus not all HOA are collections of Karens applying their peccadilloes willy-nilly in never-ending nastigrams.

None of which, as Frank points out is actually germane to THR, if tangentially to this specific thread.

There are a number of forum sites where the legality and specific authority of HOA are discusses, and in depth.

 

[Miami_JBT]

I find the whole concept fascinating - if any HOA had tried to slide "no guns" into a contract out here in AZ, they would have been laughed out of the state, at least to the best of my knowledge. I lived under an HOA once for about 3 years - I will never, ever, ever again do that, ever. It took many years to get that refusal to pay off my credit report, but I will never ever give those ridiculous cretins a dollar of my money, and I was willing to take the hit to my credit to do it. Good luck with this one, and please keep us updated? Very interesting.

I don't live in a HOA and I never will.

 

[armoredman]

I was much younger and far more naive than I am now.

 

[wayneinFL]

@DetBrowning

1. LEOSA does not allow one to carry on private property if said property bans the carrying of a concealed firearm. If you are relying solely on LEOSA, then the HOA wins.

2. Florida is now a permitless concealed carry state. If you qualify for LEOSA, you qualify to carry under the authority of FL Chapter 790 since to qualify for LEOSA you cannot be a convicted felon, have a restraining order, be declared mentally ill, be convicted of misdemeanor domestic battery, etc... it is similar requirements to meet statutory legality to carry under FL Chapter 790.


* As a result, your HOA can go suck eggs. If they simply have a posted sign, it carry no weight of law in FL.

I carry under LEOSA and FL Chapter 790.

Like lemaymiami has pointed out twice, armed trespass is a felony in Florida under 810.09. It's hard to prove trespassing on private property with just a sign. But if the HOA calls the cops and gets a trespassing warrant on you for their common areas, what do you do? It's a simple trespass if they find you on a common area. It's a felony if you carry after that.

And again it's one thing if you can't go to the community pool. Don't know what you're supposed to do if they own the road or the elevator to your condo.

 

[Miami_JBT]

Like lemaymiami has pointed out twice, armed trespass is a felony in Florida under 810.09. It's hard to prove trespassing on private property with just a sign. But if the HOA calls the cops and gets a trespassing warrant on you for their common areas, what do you do? It's a simple trespass if they find you on a common area. It's a felony if you carry after that.

And again it's one thing if you can't go to the community pool. Don't know what you're supposed to do if they own the road or the elevator to your condo.

There is case law that states when an association attempts to enforce its restrictions in court, that such association then becomes a “state actor” via such court action. The court has applied such policy of an association being a “state actor” in the past in regard to the analysis to the enforcement of any restrictions that would run afoul of any rights granted under the Constitution, including the Second Amendment.

The biggest issue facing an association is the practical aspect, such that if an association creates such a rule, it then likely has the obligation to enforce it. The problem then is, if a member is carrying a concealed weapon, the association would likely not be aware of it, and therefore would be unable to enforce the rule. Under Chapter 790, the association would have to tell you in person, during the commission of said act. Furthermore, signs do not carry the weight of law in Florida. They must tell you in person.

An association passing such a rule would be dependent on voluntary compliance. The association would be assuming some liability without the ability to compel compliance.

 

[Frank Ettin]

There is case law that states when an association attempts to enforce its restrictions in court, that such association then becomes a “state actor” via such court action...

Then cite some cases. There are some, but few; and they arise in unique situations. How would any of those decisions apply here?

For example, in PruneYard Shopping Center v. Robins, 447 US 74 (1980) the U. S. Supreme Court's upheld a decision of the California Supreme Court which applied a provision of the California Constitution. It was a narrow decision based on a unique fact pattern. The California Supreme Court decision was challenged on the grounds that it violated property rights protected under the United States Constitution.

In its ruling SCOTUS pointed out that a provision of a state constitution is treated as a state statute for the purposes of federal judicial review (447 US 74, at 79):

...It has long been established that a state constitutional provision is a "statute" within the meaning of § 1257 (2). See, e. g., Torcaso v. Watkins, 367 U. S. 488, 489 (1961); Adamson v. California, 332 U. S. 46, 48, n. 2 (1947); Railway Express Agency, Inc. v. Virginia, 282 U. S. 440 (1931)...

Furthermore, at the core of the Court's ruling in PruneYard is the principle (447 US 74, at 80):

...It is, of course, well established that a State in the exercise of its police power may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision...

And SCOTUS, in upholding the California Supreme Court noted that (447 US 74, at 82 to 83, emphasis added, footnotes omitted):

...Appellants next contend that a right to exclude others underlies the Fifth Amendment guarantee against the taking of property without just compensation and the Fourteenth Amendment guarantee against the deprivation of property without due process of law.

It is true that one of the essential sticks in the bundle of property rights is the right to exclude others. Kaiser Aetna v. United States, 444 U. S. 164, 179-180 (1979). And here there has literally been a "taking" of that right to the extent that the California Supreme Court has interpreted the State Constitution to entitle its citizens to exercise free expression and petition rights on shopping center property. But it is well established that "not every destruction or injury to property by governmental action has been held to be a `taking' in the constitutional sense." Armstrong v. United States, 364 U. S. 40, 48 (1960). Rather, the determination whether a state law unlawfully infringes a landowner's property in violation of the Taking Clause requires an examination of whether the restriction on private property "forc[es] some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Id., at 49. This examination entails inquiry into such factors as the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations. Kaiser Aetna v. United States, supra, at 175. When "regulation goes too far it will be recognized as a taking." Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922).

Here the requirement that appellants permit appellees to exercise state-protected rights of free expression and petition on shopping center property clearly does not amount to an unconstitutional infringement of appellants' property rights under the Taking Clause. There is nothing to suggest that preventing appellants from prohibiting this sort of activity will unreasonably impair the value or use of their property as a shopping center...

So in effect PruneYard is about the scope of a State's power to regulate one's use and control of his private property.

In contrast, the U. S. Supreme Court has consistently upheld a property owner's right, absent state regulation, even in the case of a shopping center, to exclude or limit speech on its property (see Lloyd Corp. v. Tanner, 407 US 551 (1972) and Hudgens v.NLRB, 424 U. S. 507 (1976))

 

[Miami_JBT]

Then cite some cases. There are some, but few; and they arise in unique situations. How would any of those decisions apply here?

For example, in PruneYard Shopping Center v. Robins, 447 US 74 (1980) the U. S. Supreme Court's upheld a decision of the California Supreme Court which applied a provision of the California Constitution. It was a narrow decision based on a unique fact pattern. The California Supreme Court decision was challenged on the grounds that it violated property rights protected under the United States Constitution.

In its ruling SCOTUS pointed out that a provision of a state constitution is treated as a state statute for the purposes of federal judicial review (447 US 74, at 79):

​

Furthermore, at the core of the Court's ruling in PruneYard is the principle (447 US 74, at 80):

​

And SCOTUS, in upholding the California Supreme Court noted that (447 US 74, at 82 to 83, emphasis added, footnotes omitted):

​

So in effect PruneYard is about the scope of a State's power to regulate one's use and control of his private property.

In contrast, the U. S. Supreme Court has consistently upheld a property owner's right, absent state regulation, even in the case of a shopping center, to exclude or limit speech on its property (see Lloyd Corp. v. Tanner, 407 US 551 (1972) and Hudgens v.NLRB, 424 U. S. 507 (1976))

State cases, not Federal. Case law has been established in FL courts that HOA sometimes do act as a state actor and as such, they can't ban certain activities. The "flag ban" was one such issue that the legislature specifically tackled, on top of the courts tackling that issue as a First Amendment violation.

In the end, OP is asking if LEOSA overrides private property banning guns. It doesn't.

FL Law is ambiguous. Private property has the right to ban guns, but they must tell you in person, signage does not carry the weight of law. As such, can a HOA ban guns in common areas?

Sure, as the owners of the property they can.

Can they enforce it?

Good luck. They need to catch OP specifically conceal carrying at the moment he does it and inform him he can't and then give him the opportunity to abide by their instruction.

HOA common areas are not specifically listed as gun free zones per 790.06(12)(a). As such, until they specifically tell him in person that he can't carry, he should carry. If they ran the common areas like Disney runs Disney Springs, then he has an issue. But they're not.

OP is covered to carry under FL Chapter since he qualifies for LEOSA since the qualifications for LEOSA are more stringent than carrying permitless in FL.

HOA common areas are no different than Disney property or Costco. The difference is, Disney spends the money to man their entry points to screen people. Costco doesn't and their signs carry no weight. Now, if Costco had their membership card and receipt checkers tell every person coming into their place like Disney does, then you can't carry there. But they don't do that and their signage carries no weight of law.

 

[Frank Ettin]

...State cases, not Federal. Case law has been established in FL courts that HOA sometimes do act as a state actor and as such, they can't ban certain activities. ...

But you need to cite the cases. You need to cite cases so that anyone can find the case, read it, and decide if he agrees with you or not. If you don't cite the case, it didn't happen.

...In the end, OP is asking if LEOSA overrides private property banning guns. It doesn't....

The bottom-line.

...FL Law is ambiguous. Private property has the right to ban guns, but they must tell you in person, signage does not carry the weight of law....

And again, you need to cite the legal authority upon which you're basing you opinions. Everyone gets to "check your work."

...As such, can a HOA ban guns in common areas?...

But that question (1) assumes you're correct; and (2) the answer would at least in part depend on the legal authority supporting your opinion.

...Sure, as the owners of the property they can.

Can they enforce it?...

Maybe and maybe not. But also, no one has considered the remedies the HOA might have under the CC&Rs, which we don't have and don't want.

 

[Miami_JBT]

But you need to cite the cases. You need to cite cases so that anyone can find the case, read it, and decide if he agrees with you or not. If you don't cite the case, it didn't happen.

The bottom-line.

And again, you need to cite the legal authority upon which you're basing you opinions. Everyone gets to "check your work."

But that question (1) assumes you're correct; and (2) the answer would at least in part depend on the legal authority supporting your opinion.

Maybe and maybe not. But also, no one has considered the remedies the HOA might have under the CC&Rs, which we don't have and don't want.

Read chapter 790.

Statutes & Constitution :View Statutes : Online Sunshine

You're in California, not in Florida. We do things differently here. Signs don't carry the weight of law. I personally have specifically fought against signs getting the weight of law here.

But if you don't believe GOA, then USCCA says the same.

https://www.usconcealedcarry.com/resources/ccw_reciprocity_map/fl-gun-laws/

 

[Frank Ettin]

Read chapter 790.

Statutes & Constitution :View Statutes : Online Sunshine

Nope! That's not how it's done. You need to do the connecting of the dots. And don't forget citations to applicable case law.

In other words, if you presume to tell us what the law is or how things work, you need to be able to show us where, how, and why legal authority (statutes and case law) supports your opinions. Otherwise your opinions add nothing to efforts to understand what the law is and how it works.

See the Guidelines for the Legal Forum:

​

...Comments and opinions should be based on legal principles and supported where appropriate with reference to legal authority, including court decisions, statutes and scholarly articles....

 

[wayneinFL]

I don't know think there's a

There is case law that states when an association attempts to enforce its restrictions in court, that such association then becomes a “state actor” via such court action. The court has applied such policy of an association being a “state actor” in the past in regard to the analysis to the enforcement of any restrictions that would run afoul of any rights granted under the Constitution, including the Second Amendment.

The biggest issue facing an association is the practical aspect, such that if an association creates such a rule, it then likely has the obligation to enforce it. The problem then is, if a member is carrying a concealed weapon, the association would likely not be aware of it, and therefore would be unable to enforce the rule. Under Chapter 790, the association would have to tell you in person, during the commission of said act. Furthermore, signs do not carry the weight of law in Florida. They must tell you in person.

An association passing such a rule would be dependent on voluntary compliance. The association would be assuming some liability without the ability to compel compliance.

The HOA gets its power through private property rights. You still haven't cited or even mentioned anything that says someone can't be convicted of trespassing on common areas owned by the HOA. I don't see anything in the statute that says you can't.

I suspect that there isn't a really specific test case on this.

 

[Miami_JBT]

Nope! That's not how it's done. You need to do the connecting of the dots. And don't forget citations to applicable case law.

In other words, if you presume to tell us what the law is or how things work, you need to be able to show us where, how, and why legal authority (statutes and case law) supports your opinions. Otherwise your opinions add nothing to efforts to understand what the law is and how it works.

See the Guidelines for the Legal Forum you'd have read:

​

Again, signage does not carry weight of law in FL except for the specific listed areas undef 790.06(12)(a) which lists specific gun free zones. no point does the entirety of Chapter 790 mention signsge carrying the weight of law once as a catch all gun free zone. Also, HOAs are not listed as specific gun free zones under 790.06(12)(a). As such, if an HOA is the owner of common areas, they can in theory ban guns. But signage does not carry the weight of law. As such, the HOA must inform you in person.

Private property can ban guns, but they must inform you in person. Hence why Disney has metal detection devices, etc to screen people. As such, they must inform you that you can leave their property.

An HOA, Disney, or Costco is no different under FL law. Again, READ 790.

Lastly, OP asked if LEOSA overrides such a ban on private property. It does not and will not.

I am informing OP that FL law is different in this manner than LEOSA and HOA common areas are a grey area in the law since FL law is ambiguous. Can they ban the carrying of arms? Yes. Can they enforce it? Sure. Will they enforce it to the manner to make it capable and enforceable? More than likely no. There's a reason why Disney does it the way they do it and why Costco's signs are ignored.

OP is covered under Chapter 790, specifically do to the passage of HB 153 - Permitless Carry to carry a firearm in FL with or without LEOSA. As such, as long as an HOA does not inform him in person that he can't carry, he is able to carry.

You want me to specifically cite statute that doesn't exist. In FL, if statute does not state something is legal or illegal, then it is legal.

Here is 790.0612)(a), at no point does it list HOAs being specific gun free zones.

A license issued under this section does not authorize any person to openly carry a handgun or carry a concealed weapon or concealed firearm into:
1. Any place of nuisance as defined in s. 823.05;
2. Any police, sheriff, or highway patrol station;
3. Any detention facility, prison, or jail;
4. Any courthouse;
5. Any courtroom, except that nothing in this section precludes a judge from carrying a concealed weapon or concealed firearm or determining who will carry a concealed weapon or concealed firearm in his or her courtroom;
6. Any polling place;
7. Any meeting of the governing body of a county, public school district, municipality, or special district;
8. Any meeting of the Legislature or a committee thereof;
9. Any school, college, or professional athletic event not related to firearms;
10. Any elementary or secondary school facility or administration building;
11. Any career center;
12. Any portion of an establishment licensed to dispense alcoholic beverages for consumption on the premises, which portion of the establishment is primarily devoted to such purpose;
13. Any college or university facility unless the licensee is a registered student, employee, or faculty member of such college or university and the weapon is a stun gun or nonlethal electric weapon or device designed solely for defensive purposes and the weapon does not fire a dart or projectile;
14. The inside of the passenger terminal and sterile area of any airport, provided that no person shall be prohibited from carrying any legal firearm into the terminal, which firearm is encased for shipment for purposes of checking such firearm as baggage to be lawfully transported on any aircraft; or
15. Any place where the carrying of firearms is prohibited by federal law.
(b) A person licensed under this section is not prohibited from carrying or storing a firearm in a vehicle for lawful purposes.
(c) This section does not modify the terms or conditions of s. 790.251(7).
(d) Any person who knowingly and willfully violates any provision of this subsection commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(13) Notwithstanding any other law, for the purposes of safety, security, personal protection, or any other lawful purpose, a person licensed under this section may carry a concealed weapon or concealed firearm on property owned, rented, leased, borrowed, or lawfully used by a church, synagogue, or other religious institution. This subsection does not limit the private property rights of a church, synagogue, or other religious institution to exercise control over property that the church, synagogue, or other religious institution owns, rents, leases, borrows, or lawfully uses.

As such, HOAs are like common private property holders wishing to ban guns, just like Disney, Costco, or the local gas station.

 

[Miami_JBT]

I don't know think there's a


The HOA gets its power through private property rights. You still haven't cited or even mentioned anything that says someone can't be convicted of trespassing on common areas owned by the HOA. I don't see anything in the statute that says you can't.

I suspect that there isn't a really specific test case on this.

I didn't say that someone can't be convicted. I said they can't post signage with the goal of carrying he weight of law. If a HOA wants to ban guns, they have to catch someone in the act.

HOAs get their power from 720.301. Which governs the formation, management, powers, and operation of HOAs in FL. The law specifically applies that HOAs are not-for-profit organizations operating residential associations. Their power is no different than any other private entity owning property. They can bar someone from carrying on their property. But signage does not carry the weight of law.

There is a reason why Disney does this to bar people from carrying and nor simply rely on signage.

Under 790.251, you can even keep a firearm in your vehicle on private property even if they ban guns as long as they "invite" you.

(1) SHORT TITLE.—This section may be cited as the “Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008.”
(2) DEFINITIONS.—As used in this section, the term:
(a) “Parking lot” means any property that is used for parking motor vehicles and is available to customers, employees, or invitees for temporary or long-term parking or storage of motor vehicles.
(b) “Motor vehicle” means any automobile, truck, minivan, sports utility vehicle, motor home, recreational vehicle, motorcycle, motor scooter, or any other vehicle operated on the roads of this state and required to be registered under state law.
(e) “Invitee” means any business invitee, including a customer or visitor, who is lawfully on the premises of a public or private employer.

That's why Disney tells people to secure their guns in their cars if they try to enter the park before they can charge someone with trespassing.

We (GOA) specifically worked with the FL Legislature to make sure signs do not carry the weight of law when HB 259 was debated a few sessions back.

Again, a HOA has the right can CAN BAN GUNS. But for them to enforce it. They have to go to the level Disney goes through.

 

[Double_J]

I agree with our esteemed moderator Frank on this issue, put up or shut up. Posting the statute for where to carry does not meet the requirements of this forum for the issue being discussed. The person in question has signed a formal agreement to follow the bylaws and covenants of the HOA. This means that he was notified of the restrictions to carry on common property. This can be taken to mean that he was knowingly violating a rule and can be trespassed by the HOA. There is also the issue that armed tresspass in Florida is a felony act, and will be VERY detrimental to the employment and quality of life for the person charged.

I would spend the money for a consultation with a qualified attorney licensed by the state to get a formal opinion, and I would also exercise the amendment process to have the HOA bylaws and covenants changed to relieve this situation. I would not play Russian roulette with the HOA and local DA over this issue with nothing more than "some random people on the internet said I can do it." Should you disagree please cite the relevant statute AND case law supporting your opinion.

Disclaimer, I have been employed as a Quality Engineer for the past 8 years, and have worked in federally regulated industries for the past 13 years with 8 of those years dealing with aerospace manufacturing and testing. My signature is on quite a number of formal waivers where if something went wrong and was traced back to something I overlooked I could be fined and be imprisoned for a number of years. Therefore I make sure I back up my statements and decisions with relevant policies and procedures backing up my logic.

 

[Gordon]

mmmm .... does whatever rule the HOA have say what the penalty is? They say you can't, but there should be some explanation of what the penalty is for breaking the HOA rule. Are you a Law Enforcement Officer? If not I don't see how the LEOSA applies so I guess you are. Even so, I don't think it permits you to carry on private property if the owner says no.

Private persons or entities still have the right to prohibit firearms on their property if they choose, but what is the penalty? If you live there you are not trespassing. My udnerstanding is that is the common complaint for carrying a firearm when the property owner does not want you to, and thus they can ask you to leave or accuse you of trespassing then if you refuse. It is odd though, since you live there, so - I see a contradiction and don't think a trespassing charge could apply. So, what is written in the rules saying what the penalty is if you carry and they call you on it? If there is no written penalty in the association rules or bylaws, then - and I'm not a lawyer, but what could the penalty be? If they don't like it, they can ask you to stop? If you persist is there a crazy board that can assign you some crazy made up penalty off the top of their heads? Throw you out etc.?

If you are permitted to carry - or can legally carry in the state, to me the question boils down to can the HOA restrict your right to carry into and out of your own home? by forcing you to traverse accross a common area where these restrictions are applicable. Although, and I don't know about Florida, but here in NH, your car is considered your private property, like inside your home, and nobody can tell you what you can or can't do arbitrarily if it is not an illegal activity in your own home or auto, is my understanding, so - you might find some case law on if a private entity can restrict your right to have a firearm in your own auto. I've worked at Hospitals which are no-go, no firearm zones big time, and everyone just leaves their firearm in their auto, parked on the hospital property.

This is an interesting question - my guess is the HOA will try to crucify you if you run up against them on this, so - I would figure out to the best of my ability what the penalty might be or not be, and just do what I wanted if I was willign to accept the penalty vs. run up against a HOA, and those people have nothing better to do than enforce whatever crazy rules they make up for everyone to follow and they are hard core about it from my experience.

The best most sensible answer

 

[wayneinFL]

I didn't say that someone can't be convicted. I said they can't post signage with the goal of carrying he weight of law. If a HOA wants to ban guns, they have to catch someone in the act.

HOAs get their power from 720.301. Which governs the formation, management, powers, and operation of HOAs in FL. The law specifically applies that HOAs are not-for-profit organizations operating residential associations. Their power is no different than any other private entity owning property. They can bar someone from carrying on their property. But signage does not carry the weight of law.

There is a reason why Disney does this to bar people from carrying and nor simply rely on signage.

Under 790.251, you can even keep a firearm in your vehicle on private property even if they ban guns as long as they "invite" you.

(1) SHORT TITLE.—This section may be cited as the “Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008.”
(2) DEFINITIONS.—As used in this section, the term:
(a) “Parking lot” means any property that is used for parking motor vehicles and is available to customers, employees, or invitees for temporary or long-term parking or storage of motor vehicles.
(b) “Motor vehicle” means any automobile, truck, minivan, sports utility vehicle, motor home, recreational vehicle, motorcycle, motor scooter, or any other vehicle operated on the roads of this state and required to be registered under state law.
(e) “Invitee” means any business invitee, including a customer or visitor, who is lawfully on the premises of a public or private employer.

That's why Disney tells people to secure their guns in their cars if they try to enter the park before they can charge someone with trespassing.

We (GOA) specifically worked with the FL Legislature to make sure signs do not carry the weight of law when HB 259 was debated a few sessions back.

Again, a HOA has the right can CAN BAN GUNS. But for them to enforce it. They have to go to the level Disney goes through.

A sign doesn't have the force of law. An HOA rule probably doesn't have the force of law, but I don't know if there is a test case on it, and I wouldn't want to be the one.

If I were the OP, I would probably buy the latest edition of Florida Firearms Law. It's a good overview of our laws here, anyway. Then email the author and ask about HOAs. Gutmacher is retired as an attorney now, but he's still pretty good about answering questions for free.

Home index page for Florida Firearms gun law book

Home page of "Florida Firearms", the leading Florida gun law book for over 25 years explaining all Florida gun laws; Federal gun laws, weapon laws & self defense laws.

www.floridafirearmslaw.com

 

[RetiredUSNChief]

The person in question has signed a formal agreement to follow the bylaws and covenants of the HOA. This means that he was notified of the restrictions to carry on common property. This can be taken to mean that he was knowingly violating a rule and can be trespassed by the HOA. There is also the issue that armed tresspass in Florida is a felony act, and will be VERY detrimental to the employment and quality of life for the person charged.

We're also either forgetting, or have put blinders on, that an HOA empowers the HOA to take a great many CIVIL actions, the extent of which will vary based upon the specifics of the HOA and the jurisdictional laws it operates under.

What those civil actions may be can vary from a simple warning up to a loss of a person's home and property through foreclosure.

No statutory criminal act/violation required.

 

[jstert]

some totally amateur thoughts here:

if one is merely transiting through a common area, i.e. not stopping to perform some activity there for a period of time, would an otherwise lawful firearm be ok? unloaded & secured or ccw? i’m thinking of a vaguely parallel situation to 18usc926a, which requires firearm to be unloaded & secured.

if a uscca member would that organization have some relevant case law? is it possible to seek an official opinion of the state a.g., or county sheriff or prosecutor?

im no lawyer. i am not suggesting an expensive court challenge to test it out.

tough situation.

 

[RickD427]

some totally amateur thoughts here:

if one is merely transiting through a common area, i.e. not stopping to perform some activity there for a period of time, would an otherwise lawful firearm be ok? unloaded & secured or ccw? i’m thinking of a vaguely parallel situation to 18usc926a, which requires firearm to be unloaded & secured.

if a uscca member would that organization have some relevant case law? is it possible to seek an official opinion of the state a.g., or county sheriff or prosecutor?

im no lawyer. i am not suggesting an expensive court challenge to test it out.

tough situation.

As many prior posters have correctly pointed out, there are two very different issues going on here:

1) Is the issue of a criminal law being violated. HOA rules do not carry the force of law and cannot be directly enforced in a criminal court. However, some states have opted to define areas where private property owners have forbidden carry, or where they have failed to expressly permit carry, as being prohibited in their criminal statutes. The LEOSA (18USC926B(b)(1) and 18USC926C(b)(1)) expressly permit the states to maintain such laws. If you're in such a state, then you can be criminally prosecuted for carrying in the HOA prohibited area. If there is no state statute prohibiting such carry, then the HOA is pretty powerless to fang you in a criminal court.

2) Is the issue of a civil contract being violated, and the remedies available to the HOA for a violation. When you join in a HOA, you enter into a contract with the HOA in which you agree to the rules of the HOA, and to be subject to the sanctions of the HOA. There is no involvement of a criminal court in the matter. If the HOA rules ban you from carrying in a common area, and you carry in that common area, they may impose the corresponding sanction (remember - you agreed to it). You may challenge that sanction in a civil court, but the issues for that civil court are going to be terms of the contract, and your conduct relative to the contract. A civil court isn't going change the terms of the contract because you feel it should apply differently. There is nothing in the LEOSA that applies to contracts.

 

[DetBrowning]

It might be possible to make the argument that. an HOA is a collective of the members (homeowners) and the common areas are owned by the members individually and collectively. Under that interpretation, common areas are the individual owners private property and otherwise lawful activity cannot be proscribed. Might make an interesting, though expensive, court case: however, the threat of legal action will frequently make a Board back down.

Yikes, I forgot to mention and it probably changes things, in my HOA we have no restrictions as to carrying firearms. It's the "common areas" Clubhouse, community pools, etc that the restriction is imposed. The "board" that oversees those areas is not an HOA and not governed by Florida statue. It is a 501 c7 llc and therefore a non-profit corporation. My mistake for the lack of information. The only members of that board are the two (2) HOAs making up the community not the individual homeowners. Does this change your thoughts?

 

[RickD427]

Yikes, I forgot to mention and it probably changes things, in my HOA we have no restrictions as to carrying firearms. It's the "common areas" Clubhouse, community pools, etc that the restriction is imposed. The "board" that oversees those areas is not an HOA and not governed by Florida statue. It is a 501 c7 llc and therefore a non-profit corporation. My mistake for the lack of information. The only members of that board are the two (2) HOAs making up the community not the individual homeowners. Does this change your thoughts?

Now you're right back to the "Contracts" question. Does the contract allow the body that you described to impose sanctions?