By Robert Murrell
Woodward, Pires & Lombardo, P.A.
A question that often arises in Florida is in regard to the service of process in gated communities and condominiums. Our community association clients often ask if they are required to admit process servers to serve process to members in the community. The questions often asked are: Isn’t privacy what we are all about? Why would we have to allow a process server in? If we have to let them in, can we at least call ahead to the members and let them know so they won’t answer their door?
The service of process in gated communities and in condominiums is controlled by the same statute, Section 48.301(7), Fla. Stat. The legislature changed this law and added Section (7) to make sure that there was no confusion regarding whether or not an association — whether a gated community or a condominium building — could prohibit the entrance into a community by a process server.
Section 48.031(7), Fla. Stat. reads as follows:
(7) A gated residential community, including a condominium association or a cooperative, shall grant unannounced entry into the community, including its common areas and common elements, to a person who is attempting to serve process on a defendant or witness who resides within or is known to be within the community.
There is now no question regarding the right of a process server to be granted entrance into a community, whether or not it is a gated community, a condominium or a cooperative; the process server must be granted access. It is also important to note that the process server is to be granted unannounced entry into the community. Therefore, there is to be no prior phone call or warning provided from the front entrance to the owner warning them that the process server is on the way.
What is the process that is being served that qualifies for this right? Under the provisions of Section 48.031, Fla. Stat., this includes the server who is attempting to serve what is called original process, or the complaint or petition in a lawsuit seeking relief. Pursuant to Sub-paragraph (1)(a) of this Section “Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents…” In addition to the service of original process, a server who is serving witness subpoenas for either a civil or criminal case would also have to be granted entrance into the community.
What could happen if entrance is not permitted? If a guard, manager or president of an association were to refuse to permit a process server to enter into the community to serve either original process or a witness subpoena, that individual could be liable under the provisions of Section 843.02, Fla. Stat., which provides that “Whoever shall resist, obstruct or oppose any officer or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable by a definite term of imprisonment not exceeding one year and a fine not to exceed $1,000 as provided in Section 775.082 or Section 775.083, Fla. Stat.”
Therefore, in order to avoid a potential fine or imprisonment, it is wise to make sure that all process servers requesting entry into your community, whether it be a gated community, a condominium building or a cooperative, be permitted to enter unannounced and to perform their job to serve without any obstruction by the association, management or security.