by Deborah Goonan, Independent American Communities
Last month, Florida’s Legislature supported a bill that protects the rights of its residents to grow their own food — including front yard vegetable gardens. The victory was celebrated by gardening enthusiasts, especially those who prefer to eat organically-grown foods.
The National Gardening Association, a strong supporter of Florida Senate Bill 82, estimates that nearly one-third of American households rely on homegrown vegetables, fruits, and herbs to drastically reduce the cost of feeding their families.
The bill was filed in response to a Florida Supreme Court ruling in favor of a local government’s power to regulate design and landscaping standards.
As crazy as it sounds, Miami Shores government leaders decided that vegetable gardens just don’t look nice enough to be visible to your neighbors. And they passed an Ordinance to fine Ricketts and Carroll $50 per day if they didn’t dig up their 17-year-old garden.
Florida law now reverses that court decision.
As usual, HOA residents are excluded from protection
However, don’t start setting out your raised garden beds on the sunny side of your property just yet. Because this new law might not apply where you live. According to an article published in the Miami Herald, SB 82 does not limit the rights of homeowners associations to restrict vegetable gardening.
You see, the law signed by Florida Governor Ron Desantis applies only to “political subdivisions.”
Specifically, here’s what the bill says: (emphasis added)
Except as otherwise provided by law, a county, municipality, or other political subdivision of this state may not regulate vegetable gardens on residential properties. Any such local ordinance or regulation regulating vegetable gardens on residential properties is void and unenforceable.
Does an HOA qualify as a “political subdivision?”
No. According to guidelines set by the Social Security Administration (SSA):
A political subdivision is a separate legal entity of a State which usually has specific governmental functions. The term ordinarily includes a county, city, town, village, or school district, and, in many States, a sanitation, utility, reclamation, drainage, flood control, or similar district.” A political subdivision’s legal status is governmental.
And SSA defines governmental entities as follows:
A governmental entity is that which is closely affiliated, generally by government ownership or control, with State and local governments.
In comparison SSA defines “private” or “non-governmental” entities:
A non-governmental entity is that which is not affiliated, through ownership or control, with State and local governments.
HOAs, including property owners, condominium, and cooperative associations, are authorized by legislation or statute. No government entity directly controls the HOA’s money or its board’s decision-making power.
Translation: both your local and state government generally allow your HOA make and enforce its own rules, including any restrictions on home gardening.
So, if you’re one of the 9.38 million Floridians living in an HOA-governed common interest community (according to the trade group, Community Associations Institute), state law does not protect your right to grow your own food on your own property.
Your HOA can still restrict gardening to the back yard, where it might not be sunny enough to produce a good crop.
Your condo or co-op association can still forbid any type of gardening on “common ground.” That even includes container gardening on “limited common areas” such as a small townhouse yard or condo deck or balcony.
And, yes, your HOA can fine you for growing your own food. Which means that your family might go hungry when money gets tight. All of this just so that your neighbors don’t have to look at your crop of tomatoes, peppers, and zucchini.
Why is that legal in HOAville, but not legal in Florida’s cities and towns?
It makes no sense.
Florida’s selectively protective vegetable garden law is more proof that the U.S. is becoming a country of parallel local governments — one that applies to anyone who lives in an HOA-governed community, and one that applies to anyone else who’s lucky enough to avoid an HOA. ♦
BY KATE GIBSON | CBS News, UPDATED ON: JUNE 26, 2019 / 11:16 PM / MONEYWATCH
Institute for Justice Press Release | June 25, 2019
Assistant Director of Communications