Guns in Places of Worship? The Debate Continues

In the wake of multiple tragic shootings, the debate continues whether religious organizations should permit members to carry firearms when worshiping.  In late January 2019, the Florida House of Representatives passed a bill that would pave the way for religious organizations to permit concealed weapons in places of worship.  House Bill 403 proposes amending Florida statutes concerning carrying concealed weapons to provide:

“Notwithstanding any other law, for the purposes of safety, security, personal protection, or other lawful purposes, a church, a synagogue, or any other religious institution may authorize a person licensed under this section to carry a firearm on property owned, rented, leased, borrowed, or lawfully used by the church, synagogue, or religious institution.”

The Bill evidences a continued concern of how best to protect members of religious organizations from random acts of violence.  However, the debate is not simply one of whether it is lawful to arm members.  Religious tenants, concerns over creating unnecessary civil liabilities for religious organizations, and the most basic question of whether having armed members attend worship makes the general membership safer, are all factored into the continued discussion whether to arm, or not arm, members.

From the single perspective of what are the civil ramifications of permitting members to carry firearms during worship, the risk to religious organizations of creating civil liabilities is real.  If a religious organization permitted members to carry concealed weapons,  in the event of an active shooter incident, members injured or killed could bring an action against the religious organization challenging how the member who was carrying a firearm reacted to the active shooter incident.

How can this be? The religious organization was trying to protect members by allowing weapons during worship.  The answer lies in the argument that once the religious organization decided to permit weapons during worship, the religious organization assumed a duty of care to the membership to ensure those members carrying a firearm could properly and effectively defend and protect the membership.  In other words, the religious organization created a duty of care that did not previously exist: the duty to ensure members carrying firearms into a place of worship will properly respond in an active shooter scenario.

This is just one example of how, from a civil liability perspective, there can be unintended consequences for a religious organization permitting members to carry firearms. Therefore, religious organizations considering permitting firearms during worship should consult legal counsel to determine how best to create policies and procedures so as to minimize potential civil liabilities.

Riparian Rights: Use and Enjoyment of Water Adjacent to Owned Property

Many religious organizations own land adjacent to bodies of water.  Ownership of the land is established by the title to the land.  But what about the water?  Who has the right to use, and limit access to, the adjacent body of water?

Riparian rights are the rights of a landowner to use and limit access to water bordering the landowner’s land.  Florida statutes provide landowners can boat, fish, bathe and partake in other similar water activities on the bordering water.  However, there are limitations on a landowner’s riparian rights.

First, though the landowner can limit other’s access to the adjacent water, the landowner does not own the riparian rights.  These rights are inseparable from the land, and can only be transferred with a sale of the land itself.

Second, for a landowner to enjoy riparian rights, the land to which the landowner holds title must extend to the ordinary high watermark of the water.

In the recent appellate opinion of Colgan v. Shadow Point, two adjacent property owners fought over ownership of a seawall and the enjoyment of attached riparian rights.  The court found one property owner could construct a fence and deny the other property owner access to the water because, among other things, the high watermark was north of the losing property owner’s land.

The takeaway for religious organizations purchasing land adjacent to bodies of water is close attention  must be made to the land bordering the body of water.  The deed transferring title should be carefully reviewed to ensure the legal description of the property includes the land  adjacent to the body of water.  Additionally, a high watermark survey should be performed to ensure the purchased land extends to the ordinary high watermark.

Benefits of Hiring an Independent Contractor to Make Church Repairs

When deacons and deaconesses take it upon themselves to make church repairs, the Church becomes exposed should a parishioner or an invitee get injured because the repair work was poorly done.  How can you minimize this exposure? Hire an independent contractor.

Florida law provides that a landowner who hires an independent contractor to make property repairs is typically not liable should someone get injured as a result of poor workmanship by the independent contractor.  Additionally, should a person on the Church property be injured while the independent contractor is performing the repairs, the Church will typically not be responsible for the injury (i.e. a ladder falls and injures someone during roof repairs).

Hiring an independent contractor sounds easy:  Find a contractor who does the needed repairs and hire that person to do the work.  Most of the time, it is this simple.  But where property owners get themselves into trouble and lose the protection of the law regarding independent contractors is in the area of “control”.  If the Church is exercising sufficient control and direction over how the contractor performs the repairs, the contractor can lose the status of independent contractor, making the Church liable for the contractor’s negligence.

What is “control” over the actions of a contractor that could undermine the protections afforded with respect to independent contractors?  Instructing the contractor on how to perform the repair work can be a big problem for a landowner.   Setting the scope of work is not a problem and is expected of a landowner hiring an independent contractor.  However, exercising control over how the work is performed by dictating the method and manner of performing the repair is just the type of control that can destroy the protection afforded a landowner hiring an independent contractor.  This control piece underscores why it is unwise to simply have a Church volunteer do the work, and then pay the volunteer some monies for their time. The question of whether the Church was controlling the actions of the volunteer will exist, regardless of the fact that the volunteer was paid.  A best practice is to formally hire by way of written contract the person or entity who is doing the work, establishing in the contract the fact that the laborer is an independent contractor.  GrayRobinson can help you craft these contracts, and can review for accuracy a contractor’s proposed contract.

Volunteer service is a big part of a Church community.  However, when it comes to repairs, the best practice is to hire an independent contractor, and then stay out of the contractor’s way when the repairs are being performed.