New Florida Law Affects HOAs and Condo Associations’ Abilities to Swipe Drivers’ Licenses at Community Entrances

Many of Florida’s associations provide their residents with gated entrances and security check-ins that enhance the safety of the communities they govern.  When communities have hundreds of homes it is sometimes difficult to keep track of every family member living at each residence.  As a security measure to ensure that every person entering the neighborhood is who he or she claims to be, many associations have security personnel swipe the driver’s license of the person entering.

The magnetic strip on the back of the Florida driver’s license contains a digital copy of all the information provided on the front of the license.  Swiping the license is not only a great tactic for confirming the resident’s identity but is also an easy way for associations to keep track of visitors to the community.  However, the Florida legislature has recently enacted a statute restricting an association’s ability to use this security technique going forward.

Effective July 1, 2013, the Florida legislature passed Section 322.143, Florida Statutes.  This law states that a “private entity” may not swipe a driver’s license or identification card, except for the following purposes:

• To protect against fraud, retailers can do so to verify the identity of an individual returning an item or requesting a refund.  Fla. Stat. 322.143(2)(a) & (c).

• To verify an individual’s age when providing an age restricted good or service.  Fla. Stat. 322.143 (2)(b).

• To transmit information to a check services company for approving negotiable instruments, electronic funds transfers, or other similar methods of payment.  Fla. Stat. 322.143(2)(d).

• To comply with an existing legal requirement to record, retain or transmit the driver license information.  Fla. Stat. 322.143(2)(e).

None of those exceptions applies to HOAs or condo associations.  Florida’s associations, therefore, have no statutory right to swipe a driver’s license, but an association can do so if the individual consents.  Fla. Stat. 322.143(6)(a).  To give valid consent, “the individual must be informed what information is collected and the purpose or purposes for which it will be used.”  Id.  If an association is currently swiping the driver’s licenses of those entering the community, it must cease from doing so until it obtains valid consent.

The association can attempt to gain the consent of all current residents by delivering a consent form to each residence, requesting each person residing there to sign and return the form.  Going forward, the association can also require all future residents to sign a consent form upon purchasing a home or unit within the community.  Such measures will more than likely require an amendment to the association’s existing declaration, articles of incorporation and bylaws.  As far as guests to the neighborhood are concerned, the association can ask each visitor to sign a consent form prior to entering, but to make such a policy mandatory the declaration, articles of incorporation and bylaws would need amending.

Because this law is recently enacted, there is not much legal guidance concerning its implementation.  One thing is for sure, though—an association that was in the habit of swiping IDs must now cease from doing so until it gains the consent of the individual.  An association found violating this recently enacted law could be liable for damages and other equitable relief.  Fla. Stat. 322.143(8).