§ 22-55. Exemptions.

(a)

Single-family and multifamily dwellings.

(1)

Nothing in this article applies to:

a.

Any single-family house sold or rented by its owner, provided such private individual owner does not own more than three (3) single-family houses at any one (1) time. In case of the sale of a single-family house by a private individual owner who does not reside in such house at the time of the sale or who was not the most recent resident of the house prior to sale, the exemption granted by this subsection applies only with respect to one (1) sale within any 24-month period. In addition, the bona fide private individual owner shall not own any interest in, nor shall there be owned or reserved on his or her behalf, under any express or voluntary agreement, title to, or any right to all or portion of the proceeds from the sale or rental of, more than three (3) single-family houses at any one (1) time. The sale or rental of any single-family house shall be excepted from the application of this article only if the house is sold or rented:

1.

Without the use in any manner of sales or rental facilities or the sales or rental services of any real estate licensee or such facilities or services of any person in the business of selling or renting dwellings, or of any employee or agent of any such licensee or person; and

2.

Without the publication, posting, or mailing, after notice, of any advertisement or written notice in violation of section 22-52(c). Nothing in this provision prohibits the use of attorneys, escrow agents, abstractors, title companies and other professional assistance as is necessary to perfect or transfer the title.

b.

Rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four (4) families living independently of each other, if the owner actually maintains and occupies one (1) of such living quarters as his or her residence.

(2)

For the purposes of subsection (1), a person is deemed to be in the business of selling or renting dwellings if the person:

a.

Has, within the preceding twelve (12) months, participated in three (3) or more transactions involving the sale or rental of any dwelling or interest therein;

b.

Has, within the preceding twelve (12) months, participated as agent, other than in the sale of his or her own personal residence, in providing sales or rental facilities or sales or rental services in two (2) or more transactions involving the sale or rental of any dwelling or interest therein; or

c.

If the owner of any dwelling designed or intended for occupancy by, or occupied by, five (5) or more families.

(b)

Nothing in this article prohibits a religious organization or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization from limiting the sale, rental, or occupancy of any dwelling which it owns or operates for other than a commercial purpose to individuals of same religion or from giving preference to such individuals, unless membership in such religion is restricted on account of race, color, or national origin.

(c)

Nothing in this article prohibits a private club not in fact open to the public, which as an incident to its primary purpose or purposes provides lodgings which it owns or operates for other than a commercial activity, from limiting the rental or occupancy of such lodgings to its members or from giving preference to members,

(d)

Nothing in this article requires any person renting or selling a dwelling constructed for first occupancy before March 13, 1991, to modify, alter, or adjust the dwelling in order to provide physical accessibility except as otherwise required by law.

(e)

Housing for older persons.

(1)

Any provision of this article regarding age or familial status does not apply with respect to housing for older persons.

(2)

Nothing in this subsection is intended to limit the applicability of any reasonable local, state, or federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling.

(3)

As used in this subsection, the term "housing for older persons" means housing:

a.

Provided under any state or federal program that is determined by state or federal rule to be specifically designed and operated to assist elderly persons, as defined in the state or federal program;

b.

Intended for, and solely occupied by, persons sixty-two (62) years of age or older;

c.

Intended and operated for occupancy by persons fifty-five (55) years of age or older.

(4)

In order for housing to qualify as being intended and operated for occupancy by persons fifty-five (55) years of age or older in accordance with subsection (3)c., such housing must meet the following requirements:

a.

The housing facility or community publishes and adheres to policies and procedures that demonstrate the intent required under this subsection. If the housing facility or community meets the requirements of subsections (5) and subsection b. and the recorded governing documents provide for an adult, senior, or retirement housing facility or community and the governing documents lack an amendatory procedure, prohibit amendments, or restrict amendments until a specified future date, then that housing facility or community shall be deemed housing for older persons intended and operated for occupancy by persons fifty-five (55) years of age or older. If those documents further provide a prohibition against residents sixteen (16) years of age or younger, that provision be construed, for purposes of this article, to only apply to residents eighteen (18) years of age or younger, in order to conform with federal law requirements. Governing documents which can be amended at a future date must be amended and properly recorded within one (1) year after that date to reflect the requirements for consideration as housing for older persons, if that housing facility or community intends to continue as housing for older persons.

b.

The housing facility or community complies with rules made by the Secretary of the United States Department of Housing and Urban Development pursuant to 24 C.F.R. Part 100, or as that part may be thereafter amended, for verification of occupancy, which rules provide for verification by reliable surveys and affidavits and include examples of the types of policies and procedures relevant to a determination of compliance with the requirements of subsection a. Such surveys and affidavits are admissible in administrative and judicial proceedings for the purposes of such verification.

(5)

In order for housing to qualify as being intended and operated for occupancy by persons fifty-five (55) years of age or older in accordance with subsection (3)c., at least eighty (80) percent of the occupied units shall be occupied by at least one (1) person fifty-five (55) years of age or older.

a.

For purposes of subsection (5), occupied unit means (i) a dwelling unit that is actually occupied by one (1) or more persons on the date that the exemption is claimed; or (ii) a temporarily vacant unit, if the primary occupant has resided in the unit during the past year and intends to return on a periodic basis.

b.

For purposes of subsection (5), occupied by at least one (1) person fifty-five (55) years of age or older means that on the date the exemption for housing designed for persons who are fifty-five (55) years of age or older is claimed (i) at least one (1) occupant of the dwelling unit is fifty-five (55) years of age or older; or (ii) if the dwelling unit is temporarily vacant, at least one (1) of the occupants immediately prior to the date on which the unit was temporarily vacated was fifty-five (55) years of age or older.

c.

Newly constructed housing for first occupancy after March 12, 1989, need not comply with the requirements of subsection (5) until at least twenty-five (25) percent of the units are occupied. For purposes of this subsection c., newly constructed housing includes a facility or community that has been wholly unoccupied for at least ninety (90) days prior to reoccupancy due to renovation or rehabilitation.

d.

Housing satisfies the requirements of subsection (5) even though:

1.

On September 13, 1988, under eighty (80) percent of the occupied units in the housing facility or community were occupied by at least one (1) person fifty-five (55) years of age or older, provided that at least eighty (80) percent of the units occupied by new occupants after September 13, 1988, are occupied by at least one (1) person fifty-five (55) years of age or older.

2.

There are unoccupied units, provided that at least eighty (80) percent of the occupied units are occupied by at least one (1) person fifty-five (55) years of age or older.

3.

There are units occupied by employees of the housing facility or community (and family members residing in the same unit) who are under fifty-five (55) years of age, provided the employees perform substantial duties related to the management or maintenance of the facility or community.

4.

There are units occupied by persons who are necessary to provide a reasonable accommodation to disabled residents and who are under the age of fifty-five (55).

5.

For a period expiring one (1) year from the effective date of 24 C.F.R. Part 100, Subpart E, there are insufficient units occupied by at least one (1) person fifty-five (55) years of age or older, but the housing facility or community, at the time the exemption is asserted (i) has reserved all unoccupied units for occupancy by at least one (1) person fifty-five (55) years of age or older until at least eighty (80) percent of the units are occupied by at least one (1) person who is fifty-five (55) years of age or older; and (ii) meets the requirements of this subsection (5).

e.

For purposes of the transition provision described in subsection (d)(5), a housing facility or community may not evict, refuse to renew leases, or otherwise penalize families with children who reside in the facility or community in order to achieve occupancy of at least eighty (80) percent of the occupied units by at least one (1) person fifty-five (55) years of age or older.

f.

Where application of the eighty (80) percent rule results in a fraction of a unit, that unit shall be considered to be included in the units that must be occupied by at least one (1) person fifty-five (55) years of age or older.

g.

Each housing facility or community may determine the age restriction, if any, for units that are not occupied by at least one (1) person fifty-five (55) years of age or older, so long as the housing facility or community complies with the provisions of subsection (6).

(6)

In order for housing to qualify as being intended and operated for occupancy by persons fifty-five (55) years of age or older in accordance with subsection (3)c., it must publish and adhere to policies and procedures that demonstrate its intent to operate as housing for persons fifty-five (55) years of age or older.

a.

For purposes of subsection (6), the following factors, among others, are considered relevant in determining whether the housing facility or community has complied with this requirement:

1.

The manner in which the housing facility or community is described to prospective residents;

2.

Any advertising designed to attract prospective residents;

3.

Lease provisions;

4.

Written rules, regulations, covenants, deed or other restrictions;

5.

The maintenance and consistent application of relevant procedures;

6.

Actual practices of the housing facility or community; and

7.

Public posting in common areas of statements describing the facility or community as for persons fifty-five (55) years of age or older.

b.

Phrases such as "adult living," "adult community," or similar statements in any written advertisement or prospectus are not consistent with the intent that the housing facility or community intends to operate as housing for persons fifty-five (55) years of age or older.

c.

If there is language in deed or other community or facility documents which is inconsistent with the intent to provide housing to persons who are fifty-five (55) years of age or older, consideration shall be given to documented evidence of a good-faith attempt to remove such language in determining whether the housing facility or community complies with the requirements of this section in conjunction with other evidence of intent.

d.

A housing facility or community may allow occupancy by families with children as long as it meets the requirements of subsection (5) and subsection a.

(7)

In order for housing to qualify as being intended and operated for occupancy by persons fifty-five (55) years of age or older in accordance with subsection (3)c., it must be able to produce, in response to a complaint filed under this article, verification of compliance with subsection (5) through reliable surveys and affidavits.

a.

For purposes of subsection (7), a facility or community shall, within one hundred-eighty (180) days of the effective date of this rule, develop procedures for routinely determining the occupancy of each unit, including the identification of whether at least one (1) occupant of each unit is fifty-five (55) years of age or older. Such procedures may be part of a normal leasing or purchasing arrangement.

b.

The procedures described in subsection a. must provide for regular updates, through surveys or other means, of the initial information supplied by the occupants of the housing facility or community. Such updates must take place at least once every two (2) years. A survey may include information regarding whether any units are occupied by persons described in subsections (5)d.1., (5)d.3., and (5)d.4.

c.

Any of the following documents are considered reliable documentation of the age of the occupants of the housing facility or community:

1.

Driver's license;

2.

Birth certificate;

3.

Passport;

4.

Immigration card;

5.

Military identification;

6.

Any other state, local, national, or international official documents containing a birth date of comparable reliability; or

7.

A certification in a lease, application, affidavit, or other document signed by any member of the household age eighteen (18) or older asserting that at least one (1) person in the unit is fifty-five (55) years of age or older.

d.

A facility or community shall consider any one (1) of the forms of verification identified above as adequate for verification of age, provided that it contains specific information about current age or date of birth.

e.

The housing facility or community must establish and maintain appropriate policies to require that occupants comply with the age verification procedures required by this subsection (7).

f.

If the occupants of a particular dwelling unit refuse to comply with the age verification procedures, the housing facility or community may, if it has sufficient evidence, consider the unit to be occupied by at least one (1) person fifty-five (55) years of age or older. Such evidence may include:

1.

Government records or documents, such as a local household census;

2.

Prior forms or applications; or

3.

A statement from an individual who has personal knowledge of the age of the occupants. The individual's statement must set forth the basis for such knowledge and be signed under the penalty of perjury.

g.

Surveys and verification procedures which comply with the requirements of this subsection (7) shall be admissible in administrative and judicial proceedings for the purpose of verifying occupancy.

h.

A summary of occupancy surveys shall be available for inspection upon reasonable notice and request by any person.

(8)

Housing shall not fail to be considered housing for older persons if:

a.

An individual who resides in such housing on or after September 13, 1988, does not meet the age requirements of this subsection (e), provided that any new occupant meets such age requirements;

b.

One (1) or more units are unoccupied, provided that any unoccupied units are reserved for occupancy by individuals who meet the age requirements of this subsection (e); or

c.

There are units occupied by employees of the housing (and family members residing in the same unit) who do not meet the age requirements of this subsection (e), provided they perform substantial duties directly related to the management or maintenance of the housing.

(9)

A person shall not be personally liable for monetary damages for a violation of this subsection (e) if such person reasonably relied in good faith on the application of the exemption under this subsection relating to housing for older persons.

a.

For purposes of this subsection (9), a person claiming the good-faith belief defense must have actual knowledge that the housing facility or community has, through an authorized representative, asserted in writing that it qualifies for a housing for older persons exemption.

b.

Before the date on which the discrimination is claimed to have occurred, a community or facility, through its authorized representatives, must certify, in writing and under oath or affirmation, to the person subsequently claiming the defense that it complies with the requirements for such an exemption as housing for persons fifty-five (55) years of age or older in order for such person to claim the defense.

c.

For purposes of this subsection (9), an authorized representative of a housing facility or community means the individual, committee, management company, owner, or other entity having the responsibility for adherence to the requirements established by this subsection (e).

d.

For purposes of this subsection (9), a person means a natural person.

e.

A person shall not be entitled to the good faith defense if the person has actual knowledge that the housing facility or community does not, or will not, qualify as housing for persons fifty-five (55) years of age or older. Such a person will be ineligible for the good faith defense regardless of whether the person received the written assurance described in this subsection (9).

(10)

A facility or community claiming an exemption under this subsection (e) shall register with the FCHR in accordance with F.S. (2010) § 760.29(4)(e), or as that section may thereafter be amended. The information provided to the FCHR will be available to the public in accordance with the provisions of F.S. (2010) § 760.29(4)(e), or as that section may thereafter be amended. The registration and documentation required by this subsection shall not substitute for proof of compliance with the requirements of this subsection. Failure to comply with the requirements of this subsection shall not disqualify a facility or community that otherwise qualifies for the exemption provided in this subsection.

(f)

Nothing in this article:

(1)

Prohibits a person engaged in the business of furnishing appraisals of real property from taking into consideration factors other than age, race, color, religion, national origin, disability, marital status, familial status, sex, or sexual orientation.

(2)

Limits the applicability of any reasonable local restriction regarding the maximum number of occupants permitted to occupy a dwelling.

(3)

Requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.

(4)

Prohibits conduct against an individual because such individual has been convicted by any court of competent jurisdiction of the illegal manufacture or distribution of a controlled substance as defined under F.S. (2010) ch. 893, or as that chapter may thereafter be amended.

(Ord. No. 2010-15 , § 5, 11-23-10)