The opioid epidemic has seen recovery residences, also referred to as “sober homes,” proliferate throughout Florida. The boom in sober homes has also led to a lot of abuse and corruption. Some sober home operators offer kickbacks to rehab centers for referrals — a practice known as patient brokering — and allow drug sales on property. The issues are so pervasive Florida’s legislature has passed several laws in recent years attempting to address the issue. Last month, the Florida House to another swing at it with House Bill 807.
HB 807 seeks to curb sober home abuse and corruption by imposing criminal penalties on sober home operators who fraudulently market their facility or run one without a license. The bill also requires more stringent background checks and imposes heightened penalties for violations of already-existing state guidelines. The law:
- Adds patient brokering to the list of serious crimes, such as murder and robbery, that can be tackled by Florida’s Office of Statewide Prosecution.
- Requires rehab centers to verify they can offer the services required by law.
- Requires stricter background checks on owners, operators and clinical supervisors.
- Provides penalties for centers that don’t meet state guidelines, including fines up to $500 for each violation.
- Mandates rehab centers can only refer clients to sober homes that are certified by the state. After June 30, 2019, rehab centers can be fined $1,000 for every referral made to an uncertified sober home.
- Provides criminal penalties for patient brokering, up to a first-degree felony and $500,000 fine when the violation includes 20 or more patients.
While the bill will combat some sober home abuses, many HOAs are asking: “Can we ban sober homes from our community?”
In response, some HOA advocates argue that prohibitions against running a business may come into play. They emphasize that unlike residents of community residential homes for the elderly (Section 419.001(2)) or community homes for persons with developmental disabilities (Section 393.062), Florida statutes do not codify residents of sober homes as the functional equivalent of a family unit or the use of the sober home as non-commercial. Thus, the advocates conclude, restrictions prohibiting running a business out of the home are enforceable against sober homes.
However, recovering addicts are counted as disabled under the Americans With Disabilities Act, and the disabled are protected from housing discrimination under the Fair Housing Act. Should an HOA refuse to grant a reasonable accommodation from its non-commercial policies to a qualified recovery residence provider it could face claims of discrimination.
This does not mean HOAs have no regulatory authority. HOAs may be able to limit the establishment of a new sober home within a certain distance of a pre-existing sober home. HOAs may also require providers to maintain certain insurance or licenses that will protect the association and the neighborhood. And, of course, the residents are still required to comply with other community rules and restrictions such as maintenance of the buildings, maintenance of landscaping, pre-approval of architectural modifications, adherence to parking restrictions and nuisance provisions, etc.
As with all group home issues, sober houses implicate many complicated and intertwined federal and state laws. If your HOA is facing issues with a sober home in your community you should consult qualified legal counsel before undertaking any enforcement action.