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Maverick
Maverick, Attorney
Category: Legal
Satisfied Customers: 6065
Experience:  20 years experience as a civil trial and appellate lawyer
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A Florida law passes the Florida House allowing the opting

Customer Question

A Florida law passes the Florida House allowing the opting out of an earlier law mandating the installation by all condo Ass'ns of both A or B. The Florida Senate under lobbying pressure, removes the part B. Such that the law reads that the opt out is for A, but without specifying that it is for A only, nor whether or not B is included or excluded. .
20,000 ass'ns decide to opt out.
The original law which this new law was intended to amend, allowed the option of A or B anyway. Thus it would be absurd for anyone who already had the choice of opting out of A by merely choosing B, to go to the trouble and expense of opting out at all, if the result of the vote did not make the slightest difference to the issue's outcome.
In other words it would be fair to say that the vote would be Absurd.
There is a doctrine in law called the "Doctrine of Absurdity" that says that if the literal reading of a law produces an absurd result, a common sense interpretation of the law should prevail.
Would it therefore be right to argue that the only proper interpretation of the opt out law was that it was meant to include both options A and B?
That is what 20,000 condo Ass'ns and their attorneys apparently believed.
Is there any case law on the point in federal or state cases?
Submitted: 8 months ago.
Category: Legal
Expert:  Maverick replied 8 months ago.

Welcome to Just Answer (“JA”)! My name is Maverick.

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A. Do I understand your inquiry correctly as follows?

1. Original law required associations to install either A or B.

2. New law reads that associations can now opt out of having to install A.

3. 20,000 associations opted out under new law; so they now MUST install B.

4. Some associations choose not to opt out under the new law; so these associations can still choose from A or B.

B. Can you see where it would be beneficial for an assoc to opt out so that if they were sued under a breach of contract/covenant theory, a plaintiff member could only obtain installation of B as a remedy; where as before the new law said member may have the option to force the assoc to install A which may cost more for the assoc.

Answer: Unless I am missing something, I don't see an absurdity or a violation of the rule against surplusage.

Customer: replied 8 months ago.

Actually it seems our discussion is missing something.

The original law as written requires the Associations to apply for building permits for either A or B before 2019 depending on their opting position.

Thus, the original option was A or B, with no "official opting out" language.

To add that language to speak only to the A part is absurd. That is because choosing B before was allowed anyway. Why then create a new law and more documents and costly procedures for no apparent reason. Thus the issue of absurdity.

The facts are that a lobbyist fight resulted in the removal of the option B in the Senate but an inability to kill the bill completely. Thus the problem now.

Expert:  Maverick replied 8 months ago.

What are A or B?

Customer: replied 8 months ago.

A is the obligation to install a sprinkler retrofitting in older buildings.

B is the obligation to install a so called Engineered safety standard system, or ESSS.

These laws were promoted by industry lobbyists absent any evidence of the need for same. The lobbyists originally got both requirements as options at the House and Senate lever.

The opting out people got the House to agree to opting out of both at the House level, but only of the ESSS at he Senate level. That is why the law says what it odes and results in the absurd situation where an option is allegedly offered that is not necessary.

Expert:  Maverick replied 8 months ago.

So before the new law, a member could force the assoc. to get a permit for A or B. After the new law, if an assoc. opts out of having to get a permit for A, then my thought was that a member could only force the assoc. to get a permit for B. But you are correct in your analysis because under the old law an assoc could choose option B even if pushed in a corner to comply.

My thought is that the effect of an assoc. opting out is that it now binds them to option B. For example, if the assoc opts out of having to get a permit for A in 2016 but then fails to apply for a permit in 2018 and a member files suit, then the assoc could only apply for a permit for B. It would no longer have the option to apply for permit A.

If you agree with my analysis, since the rights of the assoc have thus been limited under the new law, the new law would not qualify as absurdity, excess language or a redundancy.

Customer: replied 8 months ago.

The problem is that the State is taking the position (so far) that opting out of A still requires B. My position is that such an interpretation BY THE STATE, is absurd since the B option was always available to the Ass'n without nay need for any vote. Therefore the only rational explanation remains that it was meant to include B in the opt out.

I can see that at best it is only an argument and moreover the weaker of the two. The counterargument being that regardless of the apparent absurdity, arising from a "scrivener's error", for merely removing the words ELSS from the final bill without sufficient accompanying explanation of intent, , the obvious choice is that the Senate deliberately removed it and therefore intended it not to be an option.

Expert:  Maverick replied 8 months ago.

1. The problem is that the State is taking the position (so far) that opting out of A still requires B.

Yes, I am in agreement with the State's position.

2. My position is that such an interpretation BY THE STATE, is absurd since the B option was always available to the Ass'n without nay need for any vote.

On this I will refer you back to my previous answer:

So before the new law, a member could force the assoc. to get a permit for A or B. After the new law, if an assoc. opts out of having to get a permit for A, then my thought was that a member could only force the assoc. to get a permit for B. But you are correct in your analysis because under the old law an assoc could choose option B even if pushed in a corner to comply.

3. Therefore the only rational explanation remains that it was meant to include B in the opt out.

I do not know sufficient information about the framers' intentions to go as far as saying this is the only rational explanation. My point is that the new law is not redundant or surplus since a difference does exist [due to the passage of time] [and the act of opting out] between the new law and the old law as to what options the assoc has to cure a default under its duty to apply for a permit by 2019. After the new law and after opting out, it may only apply for a permit for B; not A

If you believe this is an absurdity, then the remedy is to file a declaratory judgment action in court and argue your case accordingly. The courts are assigned the responsibility of interpreting the legislation.

Q. Would it therefore be right to argue that the only proper interpretation of the opt out law was that it was meant to include both options A and B?

ANSWER: It is not clear since there does exist a difference between how the association is treated under the old law vs. the new. Because of the existence of this difference it cannot be said that the new law was created for "no apparent reason" (i.e. your definition of absurd).

Q. Is there any case law on the point in federal or state cases?

ANSWER: While there may be cases showing instances where a court found a particular statute or legislation to be absurd, each such statute would have to go through an independent analysis by the way of a declaratory judgment action where in parties often introduce the legislative history of that statute to help the court assign a proper and contextual legal meaning.