Fla. Landlord Mandating Vaccines for Tenants. But Is It Legal?

In eight S. Fla. apartment complexes, the unvaccinated need not apply – or try to renew their lease. But the rule might conflict with Fla.’s vaccine passport ban.

FORT LAUDERDALE, Fla. – If you’re not vaccinated for COVID-19, you can forget about moving into any of eight apartment complexes in Broward and Miami-Dade counties owned by Santiago A. Alvarez and his family.

And if you’re still unvaccinated when it comes time to renew your lease, you’ll have to find someplace else to live.

Alvarez, who controls 1,200 units in the two counties, is the first large-scale landlord known to national housing experts to impose a vaccine requirement not only for employees, but also for tenants. They’ll be required to produce documentation that they’ve received at least an initial vaccine dose.

The policy, which took effect Aug. 15, could set Alvarez’s company on a collision course with Gov. Ron DeSantis’ vaccine passport ban, which prohibits businesses from requiring that customers be vaccinated.

And yet the landlord might have exposed a loophole in the governor’s ban, forcing courts to decide whether a tenant is equivalent to a customer.

Alvarez says he’s not backing down. Signs posted at the leasing offices of his apartment complexes spell out the policy along with the words “Zero Tolerance.”

“We have to be concerned about our tenants and our employees,” Alvarez said in an interview. “All of these are private properties. We’re just trying to keep people safe and healthy. It’s going to cost us money, but we’re very firm on that.”

Alvarez said 12 to 15 of his tenants, most of whom lived at his properties in Hialeah, have died of COVID-19 and a larger number have gotten sick. “We don’t want that happening to [any more of] our tenants,” he said.

In Broward County, Alvarez owns three complexes in Lauderhill – Royal Palms at Lauderhill and Inverrary Village on Northwest 56th Avenue, just south of West Oakland Park Boulevard, and Parkwest Apartments on Northwest 46th Avenue.

Outside of Royal Palms at Lauderhill, tenants voiced differing opinions about the policy. “I think people should get the shot,” said a young woman who declined to give her name.

But a man who said he was vaccinated said Alvarez is overstepping his bounds. “That should be illegal,” he said of the policy. “You can’t force people to do what they don’t want to do.”

After they learned about the new policy, two tenants who don’t plan to get vaccinated contacted local eviction defense attorneys about potentially challenging the policy in court.

Looming clash with DeSantis?

Under the DeSantis-backed ban on “vaccine passports,” landlords could be subject to a $5,000 fine every time they ask a prospective tenant for documentation, said DeSantis’ press secretary, Christina Pushaw, after conferring with the governor’s legal counsel. Pushaw said she hadn’t previously heard of any Florida landlords requiring proof of vaccinations.

“Our counsel thinks that would be a violation of the vaccine passport ban,” Pushaw said in an email.

On Thursday, the Florida Department of Health stated that it would start enforcing the vaccine passport ban – which was enacted as state law after DeSantis issued it in March as an executive order – on Sept. 16. DeSantis has said that requiring proof of vaccinations violates citizens’ civil liberties and rights to keep their medical information private.

Whether Alvarez’s policy stands up to scrutiny from a legal or public health perspective figures to be a subject of debate.

Alvarez’s attorney, Juan C. Zorrilla of the Fort Lauderdale-based firm Fowler White Burnett, recently responded to a letter from a tenant’s attorney by asserting that the policy does not violate DeSantis’ executive order banning vaccine passports, nor does it violate laws barring discrimination on the basis of race, color, national origin, sex, disability, familial status or religion.

DeSantis’ order and subsequent state law say that a business entity may not require “patrons or customers” to provide any documentation certifying COVID-19 vaccination or post-infection recovery “to gain access to, entry upon, or service from the business.”

Zorrilla asserted that Alvarez’s policy does not violate DeSantis’ ban because a tenant is not a “patron” or “customer.”

“We believe that there is a clear distinction between someone who is an occupant of a dwelling and physically on the premises for an extended duration of time versus someone who is a patron or customer and simply visiting for a short duration,” Zorrilla wrote. “By only identifying two categories of people who are transient, we do not believe the Order would be interpreted by a court to include tenants or residents of a business or property.”

Dawn Meyers, a partner with the government and regulatory team at Miami-based Berger Singerman, says the court system will likely have to decide whether residency can be equated with a “good” or a “service.”

“I suspect the governor would view it as a violation of his prohibition, but that may end up needing a judicial determination,” she said.

Lauren Einhorn, who specializes in real estate contracting law for Davie-based Kelley Kronenberg, said she expects courts will ultimately find that landlords can require vaccines. That’s because unlike restaurants, stores or other businesses open to the public, a landlord-tenant relationship is contractually based, she said.

Courts have consistently upheld landlords’ rights to enforce a wide range of provisions, she said, particularly if they are intended to protect other tenants, such as bans on firing guns or manufacturing methamphetamine inside apartments.

But Brian Korte, a West Palm Beach-based eviction defense attorney who was alerted to Alvarez’s policy by a tenant, said the policy “discriminates against people who are healthy and who don’t have a disease.” That’s ironic, he said, considering that the Americans with Disabilities Act would likely bar a landlord from refusing to rent to someone infected with COVID-19.

Korte said Alvarez’s policy reminds him of businesses that refused to serve gay men in the 1980s and early 1990s because they suspected all could be carrying HIV/AIDS.

Alvarez, asked whether he was aware that he might be fined over his policy, pointed to a recent federal court injunction prohibiting the state from fining Norwegian Cruise Line for requiring passengers to show proof of vaccination. The injunction will remain in effect while Norwegian pursues its lawsuit challenging the passport ban, though DeSantis is seeking to have it overturned.

Is it good for public health?

Setting aside the question of whether Alvarez’s policy will be upheld in court, experts are divided over the question of whether it serves the broader interest of protecting public health.

Korte says allowing landlords to bar unvaccinated applicants – and refuse to renew leases of existing tenants who won’t get vaccinated – undermines the goals of keeping people in their homes and off of the streets where they would be more likely to spread the virus. That was the justification provided by federal, state and local officials for eviction moratoriums imposed as the pandemic began, he said.

Korte also said that Black people, because they are more likely to resist getting vaccinated, could be denied housing in disproportionate numbers if Alvarez’s policy becomes standard practice everywhere. Courts have found that some housing policies, such as a blanket ban on convicted felons, can be discriminatory if they are more likely to affect people of certain races, sexes, religions or other protected classes.

“Where does it end?” Korte said. “Where will non-vaccinated people live? A slum?”

David Dworkin, president and CEO of the National Housing Conference, a nonprofit organization that promotes affordable housing, said Alvarez’s policy is the first – and hopefully the last – of its kind that he’s heard about.

“When requiring vaccinations for employment, there’s a broad agreement that it serves the health and safety of workers,” Dworkin said. “But in the case of people’s homes, when the rise of the delta variant requires people to both work from home and stay at home more, putting people at risk of losing their home or doubling up with others or becoming homeless is not a responsible public health approach.”

A more effective tool, Dworkin said, would be to strictly enforce masking and social distancing in common areas of apartment complexes. Threatening people’s homes, he said, “seems just cruel and ineffective.”

Alvarez said masks are required in common areas at his properties.

An official of the National Multifamily Housing Council, a trade organization of large- and mid-sized apartment complex owners, said they know of no other large landlord with a similar policy.

Still, Paula Cino, the council’s vice president for construction, development and land-use policy, disputed the notion that Alvarez’s vaccine requirement runs counter to goals of eviction moratoriums.

“I don’t see it that way. I would go the other way, from our perspective,” she said. “If a housing environment could lead to infection risk, it makes sense for providers to take steps to mitigate that risk.” Ultimately, she said, landlords must decide whether a vaccine requirement makes sense for them and their residents, as long as whatever policy they choose is “evenly applied” and does not violate fair housing laws.

State Rep. Anna Eskamani, an Orlando area Democrat known for supporting policies aimed at helping low-income Floridians, said landlords considering vaccine mandates should provide a reasonable amount of time for existing tenants to get vaccinated and ensure potential tenants can get access to vaccines.

Windows at the leasing office of Alvarez’s Inverrary Village property display COVID-19 fact sheets as well as locations where tenants can get vaccinated.

“Not all vaccine hesitancy is politically motivated,” Eskamani said in an emailed statement. “It can also be based on lack of information and a distrust of medical institutions, which we need to find ways to combat, together.”

Attorney Dawn Meyers points out that Alvarez’s policy “is not an eviction” because “there is a route for people to stay in their homes.”

Meyers added, “Keep in mind that there are multiple goals and priorities at play, and preventing the spread of COVID versus permitting unvaccinated people to lease apartments in specific complexes seems, at least to the owner of these complexes, to be an easy call.

© 2021 South Florida Sun-Sentinel. Distributed by Tribune Content Agency, LLC.

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