By Ivette Machado, Esq.

All is well at The Tower, a fictitious condominium that is operated by The Tower Condominium Association, Inc., until it was discovered that Mr. Investor, an owner of a unit at The Tower, is proposing to lease his unit to Mr. Shady. Upon further inquiry it is discovered that Mr. Shady is a registered sex offender.

Once this information is presented to the association's Board of Directors, the board members scramble to consider whether they have the authority to prevent Mr. Investor from leasing his unit to Mr. Shady.

As the first step in determining whether the association has any right to prohibit the leasing of a unit to Mr. Shady, its governing documents must be reviewed in order to ascertain whether it has the right to approve the leasing of units. If the association's governing documents do not provide for the authority to approve proposed leases, then, unfortunately, Mr. Shady may not be prevented from moving into The Tower, no matter how egregious his crimes may have been.

The question then often arises as to whether the association may restrict Mr. Shady's usage of the common element recreational facilities, such as the pool or tennis courts, which are frequented by young children. In response it is determined that if Mr. Shady is being supervised by the Department of Corrections as a result of his sex offense , a judge may establish certain conditions for his probation, which include his ability to visit areas frequented by young children. However, if Mr. Shady is no longer under probation or subject to supervision by the Department of Corrections or another entity, the association has no power to restrict his usage of the recreational facilities. In fact , Mr. Shady has the same use rights in the recreational facilities as any unit owner.

So now that Mr. Shady is residing at The Tower and utilizing the recreational facilities, what can the association do to warn residents of Mr. Shady's occupancy of a unit in the building? The information obtained on sexual offenders from the Florida Department of Law Enforcement (“FDLE”) website is considered a public record. Accordingly, the association may distribute exactly what appears on the FDLE website as it pertains to Mr. Shady, and may advise residents that additional information may be obtained via the Florida Department of Law Enforcement website at www.fdle.state.fl.us and/or by contacting FDLE's Sexual Offender/Predator Unit at 1-888-357-7332.

However, it should be noted that the use and distribution of this information pertaining to sexual predators and offenders is regulated, and pursuant to Florida law, the misuse of public records information may result in liability for the individual who misuses such information. Florida law also provides that law enforcement agencies must inform members of the community and the public of a sexual predator's presence. Since law enforcement agencies are responsible for informing the members of the public of a sexual predator's presence, the association should call its local police department to discuss this matter and obtain additional guidance regarding sexual offender disclosure requirements.

If the association's governing documents provide it with the authority to approve or disapprove proposed leases, then prior to disapproving the proposed lease to Mr. Shady there are several factors that it must consider, such as the nature of the crime, how long ago it took place, and whether Mr. Shady has a lengthy criminal history or was it an isolated event. Obviously, the grounds for disapproval would be more reasonable if Mr. Shady has several convictions involving violence, and the incidents occurred fairly recently. However, after the association has researched Mr. Shady's history, the board should contact its attorney in order to discuss whether Mr. Shady's disapproval is merited under the circumstances.