Florida Statute 768.0706(2)(b): Implementing & Documenting Improvements

The good news in this situation is that property owners are not expected to be in perfect compliance with all conditions in Section 768.0706(2)(a), nor are owners required to implement every recommendation proposed during the CPTED assessment. The law expects a diligent effort to implement Subsection A’s physical security requirements and measures recommended in the CPTED assessment, but there is a margin for error or possibly even rejection of some ideas that may be proposed by the Florida CPTED Practitioner.

With regard to the conditions defined in Florida Statute 768.0706(2)(a), we advise clients to approach these seven measures as mandatory compliance requirements. As specific items clearly listed in the statute, we expect they will be viewed by courts as necessary conditions. If there is any latitude provided by the phrase “substantially implement,” it should be reserved for nullifying arguments over minute details or ambiguities in the statute (e.g., exact location of “points of entry and exit,” illumination in “porches” located inside leased private residences, etc.).

Regarding the CPTED assessment, there may be more flexibility for rejection decisions.

Although there are standards and guidelines promoted by FCPTI for crime prevention through environmental design, the practical application of CPTED principles often varies between practitioners. One practitioner may recommend trimming or removing a particular shrub because it exceeds 24-inches. Another practitioner may ignore the same shrub because it doesn’t interfere with sightlines or provide a reasonable opportunity for offender concealment. In short, the way in which CPTED principles are applied often depends on how the practitioner subjectively views a situation as beneficial to criminals.

Likewise, not all measures proposed in a CPTED assessment may make sense from a cost-benefit perspective. Take for example, a parking lot with an average illumination level of 2.5 fc measured at 18-inches. In this situation, the parking lot complies with the 1.8 fc requirement defined in 768.0706(2)(a)(2). However, 2.5 fc is below the IES guideline for parking lot illumination in multifamily properties “when security is an issue” (the guideline endorsed for CPTED purposes by FCPTI), and the true level would be even lower if measured horizontally at ground-level according to the IES guideline. From a practical perspective, most people would subjectively judge a parking lot illuminated at 2.5 fc as “well lit.” There would be little crime deterrence benefit in increasing the average parking lot illumination level from 2.5 fc to 3.0 fc. And when compared to $30,000-$50,000 of investment for additional light poles, it would be very reasonable for a property owner to reject that idea if proposed in a CPTED assessment.

Although the way the statute is written allows a degree of latitude for discretion, any decisions made to reject implementation of specific measures should be well justified. And there should be a diligent effort to implement most of the practitioner’s suggestions to clearly demonstrate that the property has “substantially complied” with the assessment.

For this purpose, experienced security consultants often present measures using a prioritization rank or cost-benefit scale to assist decision-making. This type of approach also assists property owners who are challenged during deposition about rejecting specific measures by providing a defensible basis for the decision.