House Bill 403 was passed by the Florida Legislature in 2021 and deals with home-based businesses. It became Chapter 2021-202, Laws of Florida, took effect on July 1, 2021, and is now found in section 559.955 of the Florida Statutes. Questions about it are still raised by boards and owners, mostly about whether an association's ban on business activity survived. In most cases, it did.
This article is general information and is not legal advice. The association's attorney should be consulted.
What the Law Does
Section 559.955 is aimed at cities and counties. Local governments may not enact or enforce an ordinance, regulation, or policy, or take any action, to license or regulate a home-based business in violation of the section. A business that qualifies:
- May be operated in an area zoned for residential use
- May not be prohibited, restricted, regulated, or licensed differently from other businesses in the local government's jurisdiction, except as the section provides
- Is subject only to the applicable local business taxes under Chapter 205
A business owner who is adversely affected by a local government action that violates the section may challenge it, and the prevailing party may recover reasonable attorney fees and costs.
What Qualifies as a Home-Based Business
A business is treated as home-based under the statute when it is operated, in whole or in part, from a residential property and the following criteria are met:
- Employees who work at the home must also live there, except that up to two employees or independent contractors who do not live there may work at the business. Additional remote employees are allowed.
- Parking must comply with local zoning requirements, and the need for parking may not be greater than would normally be expected at a similar home where no business is conducted. Business vehicles and trailers must be parked in legal spaces and not in the right-of-way, on a sidewalk, or on unimproved surfaces.
- As viewed from the street, the use of the property must be consistent with the surrounding residential area, and any external modifications must conform to the residential character of the neighborhood.
- Business activity must be secondary to the use of the property as a dwelling.
- Relevant rules on signage, noise, vibration, heat, smoke, dust, glare, fumes, and odors must be followed, along with regulations on hazardous or flammable materials.
Why Association Documents Still Control
The point of greatest interest to community associations is found in subsection (5). The application of the section does not supersede any current or future declaration of condominium adopted under Chapter 718, cooperative document adopted under Chapter 719, or declaration of covenants adopted under Chapter 720.
In practical terms:
- Where a recorded declaration prohibits or limits business use of a home or unit, that restriction was not removed by the law and may still be enforced by the association
- Where a declaration is silent on business use, a local zoning rule can no longer be relied on to stop a business that qualifies under the statute
- The subsection refers to declarations and cooperative documents. Whether a board-adopted rule, standing alone, is given the same protection is a question for the association's attorney
Concerns Raised by Boards
Concerns about home businesses tend to be practical:
- Customer and delivery traffic, especially in gated communities
- Street parking and access for emergency vehicles
- Signs, commercial vehicles, and stored equipment
- Noise during business hours
Many of these are already addressed by parking, signage, nuisance, and vehicle provisions in the governing documents, which apply to every owner without regard to whether a business is involved.
What Boards Should Do
- The declaration should be read for any clause on commercial or business use, along with the parking, signage, and nuisance sections.
- If the language is outdated or unclear, an amendment should be discussed with the association's attorney. A declaration amendment requires an owner vote under the governing documents.
- Enforcement should be based on conduct, such as traffic, parking, signs, and noise, and should be applied evenly.
- Before a fine or suspension is imposed, at least 14 days' written notice and an opportunity for a hearing before a committee must be provided.
More on the board's authority can be found in our post on
the role of the board of directors, and shared-space rules are covered in
HOA practices for common areas.
What Owners Should Do
Before a business is started from home, the declaration and rules should be checked, and any required local business tax receipt should be obtained. Where the documents are unclear, a written question to the manager or board is the safest first step.
Guidance for Your Association
Rule enforcement, owner communication, and coordination with association counsel are handled for the communities managed by Condominium Associates. For help with questions about business use in your community,
contact us.
