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Daycare Legality

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Active Member
PayrollHRGuy and Quincy thank you for your attention to this matter.

PayrollHRGuy: The relevant clause is: “…shall constitute a valid residential use for purposes of any local zoning regulations, and no such regulation shall require the owner or operator of such family day care home to obtain any special exemption or use permit or waiver,…”

The phrase, “shall constitute a valid residential use” clearly implies that one may use their property for the purpose of a daycare facility.

The phrase in the by law, “No trade or business shall be conducted nor any commercial use made of any residential lot.” clearly contradicts the state statute in the case of a daycare facility – the state says you can, the HOA says you cannot. You are right in that HOA’s CAN limit properties under their jurisdiction. However there is a critical distinction between limiting a restriction (permission) and contradicting a restriction (permission). For example, suppose an HOA had a gambling facility on their premises for the residents and the state had a regulation that no one under the age of 18 can gamble. The HOA can if they so chose, further restrict the age of gambling on their premises to 21 - this is a further restriction. What the HOA cannot do is pass a bylaw that reduces the gambling age to say 16 – this is a contradiction of the state regulation. In my case the state law specifically says you can run such a facility but the HOA by law says you cannot – a contradiction.

Both you and Quincy also state correctly, “You live under the rules you contractually agreed to in your HOA documents. Your wife’s in-home childcare service violates these rules.” However there is another fundamental principle here in that contracts in violation of the law generally are not enforceable. For example, if party A hires party B to do something illegal, party B does the illegal act, party B cannot then turn around and sue party A for payment – the act was illegal and should not have been done in the first place.

Similarly, the HOA’s by law is illegal – it contradicts the state law which specifically allows such use. As such I should not be bound by an illegal by law – it should not have been adopted in the first place.

It came to our attention by a neighbor who brought it up in a board meeting. The board is discussing whether or not to send us a cease and desist notice.

Is it really the case that there is no case law in Florida testing this state law against what is undoubtedly a common HOA bylaw??

(Somebody mentioned to me the two cases of: 2018 Florida Supreme Court decision, Hernandez v. Crespo and the 2015 Florida appellate court decision, Milhomme v. City of Lauderhill, as supporting my position. Unfortunately I could not locate either of these cases)
You want to talk about "fundamental principles? Try this one:

"No state shall . . . pass any law impairing the Obligation of contracts." Article 1, Section 10, Clause 1 United States Constitution.

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