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Florida Statute 768.0706: A Guide to Compliance for Multifamily Properties - Part 4

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

Once the CPTED and compliance verification assessment is complete, corrective actions related to Florida Statute 768.0706(2)(a) should be initiated and decisions should be made about how to substantially comply with the measures proposed during the CPTED assessment.

“Substantial Compliance” and Florida Statute 768.0706

As described in Section 768.0706(2): “The owner or principal operator of a multifamily residential property which substantially implements the following security measures on that property has a presumption against liability in connection with criminal acts that occur on the premises which are committed by third parties who are not employees or agents of the owner or operator:…”

Section 768.0706(2)(b) also uses similar language specifically regarding the CPTED assessment: “…The owner or principal operator must remain in substantial compliance with the assessment for purposes of this paragraph.”

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.

Documenting Corrective Actions to Demonstrate “Substantial Compliance” as Required by Florida Statute 768.0706(2)

A system should be implemented for documenting all corrective actions related to Section 768.0706(2)(a) and the CPTED assessment.

For this purpose, the organization’s existing work order management system is the logical choice for cataloguing physical property improvements. Each measure required for compliance with Section 768.0706(2)(a) and the CPTED assessment should be entered as a work order with a cross-reference to the assessment. If the work order management system allows the creation of custom subcategories, a category should be created to denote HB 837 compliance matters and aid in retrieving documentation quickly if a records request appears.

It is also recommended that a centralized file system (compliance archive) is established for maintaining copies of invoices and receipts, vendor documents related to improvements (e.g., new camera plans, photometric drawings, etc.), written policy documents, and any other documentation related to implementation of measures related to Section 768.0706(2)(a) and the CPTED assessment.

As new measures are implemented, it is also recommended that photos are taken and added to the compliance archive to visually illustrate the new improvements.

If lighting improvements are made without the production of a photometric plan (such as installing a few new wall packs or increasing the wattage of bulbs in existing fixtures), the improvements should ideally be documented in the form of an updated lighting assessment with a record of the new light meter measurements. If the improvements are limited to specific locations (such as entrances or mailbox areas), this can be done using digital photos annotated with the improved illumination level.

Additional Articles Related to Florida Statute 768.0706 

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