Florida Senate - 2009                        COMMITTEE AMENDMENT
       Bill No. CS for SB 714
       
       
       
       
       
       
                                Barcode 821154                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/15/2009           .                                
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       The Committee on General Government Appropriations (Aronberg)
       recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Between lines 265 and 266
    4  insert:
    5         Section 3. Paragraphs (b), (d), (l), and (n) of subsection
    6  (2) of section 718.112, Florida Statutes, are amended to read:
    7         718.112 Bylaws.—
    8         (2) REQUIRED PROVISIONS.—The bylaws shall provide for the
    9  following and, if they do not do so, shall be deemed to include
   10  the following:
   11         (b) Quorum; voting requirements; proxies.—
   12         1. Unless a lower number is provided in the bylaws, the
   13  percentage of voting interests required to constitute a quorum
   14  at a meeting of the members shall be a majority of the voting
   15  interests. Unless otherwise provided in this chapter or in the
   16  declaration, articles of incorporation, or bylaws, and except as
   17  provided in sub-subparagraph subparagraph (d)3.a., decisions
   18  shall be made by owners of a majority of the voting interests
   19  represented at a meeting at which a quorum is present.
   20         2. Except as specifically otherwise provided herein, after
   21  January 1, 1992, unit owners may not vote by general proxy, but
   22  may vote by limited proxies substantially conforming to a
   23  limited proxy form adopted by the division. No voting interest
   24  or consent right allocated to a unit owned by the association
   25  shall be exercised or considered for any purpose, whether for a
   26  quorum, an election, or otherwise. Limited proxies and general
   27  proxies may be used to establish a quorum. Limited proxies shall
   28  be used for votes taken to waive or reduce reserves in
   29  accordance with subparagraph (f)2.; for votes taken to waive the
   30  financial reporting requirements of s. 718.111(13); for votes
   31  taken to amend the declaration pursuant to s. 718.110; for votes
   32  taken to amend the articles of incorporation or bylaws pursuant
   33  to this section; and for any other matter for which this chapter
   34  requires or permits a vote of the unit owners. Except as
   35  provided in paragraph (d), after January 1, 1992, no proxy,
   36  limited or general, shall be used in the election of board
   37  members. General proxies may be used for other matters for which
   38  limited proxies are not required, and may also be used in voting
   39  for nonsubstantive changes to items for which a limited proxy is
   40  required and given. Notwithstanding the provisions of this
   41  subparagraph, unit owners may vote in person at unit owner
   42  meetings. Nothing contained herein shall limit the use of
   43  general proxies or require the use of limited proxies for any
   44  agenda item or election at any meeting of a timeshare
   45  condominium association.
   46         3. Any proxy given shall be effective only for the specific
   47  meeting for which originally given and any lawfully adjourned
   48  meetings thereof. In no event shall any proxy be valid for a
   49  period longer than 90 days after the date of the first meeting
   50  for which it was given. Every proxy is revocable at any time at
   51  the pleasure of the unit owner executing it.
   52         4. A member of the board of administration or a committee
   53  may submit in writing his or her agreement or disagreement with
   54  any action taken at a meeting that the member did not attend.
   55  This agreement or disagreement may not be used as a vote for or
   56  against the action taken and may not be used for the purposes of
   57  creating a quorum.
   58         5. When any of the board or committee members meet by
   59  telephone conference, those board or committee members attending
   60  by telephone conference may be counted toward obtaining a quorum
   61  and may vote by telephone. A telephone speaker must be used so
   62  that the conversation of those board or committee members
   63  attending by telephone may be heard by the board or committee
   64  members attending in person as well as by any unit owners
   65  present at a meeting.
   66         (d) Unit owner meetings.—
   67         1. There shall be an annual meeting of the unit owners held
   68  at the location provided in the association bylaws and, if the
   69  bylaws are silent as to the location, the meeting shall be held
   70  within 45 miles of the condominium property. However, such
   71  distance requirement does not apply to an association governing
   72  a timeshare condominium. Unless the bylaws provide otherwise, a
   73  vacancy on the board caused by the expiration of a director’s
   74  term shall be filled by electing a new board member, and the
   75  election shall be by secret ballot; however, if the number of
   76  vacancies equals or exceeds the number of candidates, no
   77  election is required. The terms of all members of the board
   78  shall expire at the annual meeting and such board members may
   79  stand for reelection unless otherwise permitted by the bylaws.
   80  In the event that the bylaws permit staggered terms of no more
   81  than 2 years and upon approval of a majority of the total voting
   82  interests, the association board members may serve 2-year
   83  staggered terms. If the number no person is interested in or
   84  demonstrates an intention to run for the position of a board
   85  members member whose terms have term has expired according to
   86  the provisions of this subparagraph exceeds the number of
   87  eligible members showing interest in or demonstrating an
   88  intention to run for the vacant positions, each such board
   89  member whose term has expired shall become eligible for
   90  reappointment be automatically reappointed to the board of
   91  administration and need not stand for reelection. In a
   92  condominium association of more than 10 units, coowners of a
   93  unit may not serve as members of the board of directors at the
   94  same time unless they own more than one unit and are not co
   95  occupants of a unit. Any unit owner desiring to be a candidate
   96  for board membership shall comply with sub-subparagraph
   97  subparagraph 3.a. A person who has been suspended or removed by
   98  the division under this chapter, or who is delinquent in the
   99  payment of any fee, fine, or special or regular assessment as
  100  provided in paragraph (n), is not eligible for board membership.
  101  A person who has been convicted of any felony in this state or
  102  in a United States District or Territorial Court, or who has
  103  been convicted of any offense in another jurisdiction that would
  104  be considered a felony if committed in this state, is not
  105  eligible for board membership unless such felon’s civil rights
  106  have been restored for a period of no less than 5 years as of
  107  the date on which such person seeks election to the board. The
  108  validity of an action by the board is not affected if it is
  109  later determined that a member of the board is ineligible for
  110  board membership due to having been convicted of a felony.
  111         2. The bylaws shall provide the method of calling meetings
  112  of unit owners, including annual meetings. Written notice, which
  113  notice must include an agenda, shall be mailed, hand delivered,
  114  or electronically transmitted to each unit owner at least 14
  115  days prior to the annual meeting and shall be posted in a
  116  conspicuous place on the condominium property at least 14
  117  continuous days preceding the annual meeting. Upon notice to the
  118  unit owners, the board shall by duly adopted rule designate a
  119  specific location on the condominium property or association
  120  property upon which all notices of unit owner meetings shall be
  121  posted; however, if there is no condominium property or
  122  association property upon which notices can be posted, this
  123  requirement does not apply. In lieu of or in addition to the
  124  physical posting of notice of any meeting of the unit owners on
  125  the condominium property, the association may, by reasonable
  126  rule, adopt a procedure for conspicuously posting and repeatedly
  127  broadcasting the notice and the agenda on a closed-circuit cable
  128  television system serving the condominium association. However,
  129  if broadcast notice is used in lieu of a notice posted
  130  physically on the condominium property, the notice and agenda
  131  must be broadcast at least four times every broadcast hour of
  132  each day that a posted notice is otherwise required under this
  133  section. When broadcast notice is provided, the notice and
  134  agenda must be broadcast in a manner and for a sufficient
  135  continuous length of time so as to allow an average reader to
  136  observe the notice and read and comprehend the entire content of
  137  the notice and the agenda. Unless a unit owner waives in writing
  138  the right to receive notice of the annual meeting, such notice
  139  shall be hand delivered, mailed, or electronically transmitted
  140  to each unit owner. Notice for meetings and notice for all other
  141  purposes shall be mailed to each unit owner at the address last
  142  furnished to the association by the unit owner, or hand
  143  delivered to each unit owner. However, if a unit is owned by
  144  more than one person, the association shall provide notice, for
  145  meetings and all other purposes, to that one address which the
  146  developer initially identifies for that purpose and thereafter
  147  as one or more of the owners of the unit shall so advise the
  148  association in writing, or if no address is given or the owners
  149  of the unit do not agree, to the address provided on the deed of
  150  record. An officer of the association, or the manager or other
  151  person providing notice of the association meeting, shall
  152  provide an affidavit or United States Postal Service certificate
  153  of mailing, to be included in the official records of the
  154  association affirming that the notice was mailed or hand
  155  delivered, in accordance with this provision.
  156         3.a. The members of the board shall be elected by written
  157  ballot or voting machine. Proxies shall in no event be used in
  158  electing the board, either in general elections or elections to
  159  fill vacancies caused by recall, resignation, or otherwise,
  160  unless otherwise provided in this chapter. Not less than 60 days
  161  before a scheduled election, the association shall mail,
  162  deliver, or electronically transmit, whether by separate
  163  association mailing or included in another association mailing,
  164  delivery, or transmission, including regularly published
  165  newsletters, to each unit owner entitled to a vote, a first
  166  notice of the date of the election along with a certification
  167  form provided by the division attesting that he or she has read
  168  and understands, to the best of his or her ability, the
  169  governing documents of the association and the provisions of
  170  this chapter and any applicable rules. Any unit owner or other
  171  eligible person desiring to be a candidate for the board must
  172  give written notice of intent to be a candidate to the
  173  association not less than 40 days before a scheduled election.
  174  Together with the written notice and agenda as set forth in
  175  subparagraph 2., the association shall mail, deliver, or
  176  electronically transmit a second notice of the election to all
  177  unit owners entitled to vote therein, together with a ballot
  178  which shall list all candidates. Upon request of a candidate,
  179  the association shall include an information sheet, no larger
  180  than 8 1/2 inches by 11 inches, which must be furnished by the
  181  candidate not less than 35 days before the election, shall along
  182  with the signed certification form provided for in this
  183  subparagraph, to be included with the mailing, delivery, or
  184  transmission of the ballot, with the costs of mailing, delivery,
  185  or electronic transmission and copying to be borne by the
  186  association. The association is not liable for the contents of
  187  the information sheets prepared by the candidates. In order to
  188  reduce costs, the association may print or duplicate the
  189  information sheets on both sides of the paper. The division
  190  shall by rule establish voting procedures consistent with the
  191  provisions contained herein, including rules establishing
  192  procedures for giving notice by electronic transmission and
  193  rules providing for the secrecy of ballots. Elections shall be
  194  decided by a plurality of those ballots cast. There shall be no
  195  quorum requirement; however, at least 20 percent of the eligible
  196  voters must cast a ballot in order to have a valid election of
  197  members of the board. No unit owner shall permit any other
  198  person to vote his or her ballot, and any such ballots
  199  improperly cast shall be deemed invalid, provided any unit owner
  200  who violates this provision may be fined by the association in
  201  accordance with s. 718.303. A unit owner who needs assistance in
  202  casting the ballot for the reasons stated in s. 101.051 may
  203  obtain assistance in casting the ballot. The regular election
  204  shall occur on the date of the annual meeting. The provisions of
  205  this sub-subparagraph subparagraph shall not apply to timeshare
  206  condominium associations. Notwithstanding the provisions of this
  207  sub-subparagraph subparagraph, an election is not required
  208  unless more candidates file notices of intent to run or are
  209  nominated than board vacancies exist.
  210         b. Within 90 days after being elected to the board, each
  211  newly elected director shall certify in writing to the secretary
  212  of the association that he or she has read the association’s
  213  declarations of covenants and restrictions, articles of
  214  incorporation, bylaws, and current written policies; that he or
  215  she will work to uphold such documents and policies to the best
  216  of his or her ability; and that he or she will faithfully
  217  discharge his or her fiduciary responsibility to the
  218  association’s members. In lieu of this written certification,
  219  the newly elected director may submit a certificate of
  220  satisfactory completion of the educational curriculum
  221  administered by a division-approved condominium education
  222  provider. Failure to timely file the written certification or
  223  educational certificate automatically disqualifies the director
  224  from service on the board. The secretary shall cause the
  225  association to retain a director’s written certification or
  226  educational certificate for inspection by the members for 5
  227  years after a director’s election. Failure to have such written
  228  certification or educational certificate on file does not affect
  229  the validity of any appropriate action.
  230         4. Any approval by unit owners called for by this chapter
  231  or the applicable declaration or bylaws, including, but not
  232  limited to, the approval requirement in s. 718.111(8), shall be
  233  made at a duly noticed meeting of unit owners and shall be
  234  subject to all requirements of this chapter or the applicable
  235  condominium documents relating to unit owner decisionmaking,
  236  except that unit owners may take action by written agreement,
  237  without meetings, on matters for which action by written
  238  agreement without meetings is expressly allowed by the
  239  applicable bylaws or declaration or any statute that provides
  240  for such action.
  241         5. Unit owners may waive notice of specific meetings if
  242  allowed by the applicable bylaws or declaration or any statute.
  243  If authorized by the bylaws, notice of meetings of the board of
  244  administration, unit owner meetings, except unit owner meetings
  245  called to recall board members under paragraph (j), and
  246  committee meetings may be given by electronic transmission to
  247  unit owners who consent to receive notice by electronic
  248  transmission.
  249         6. Unit owners shall have the right to participate in
  250  meetings of unit owners with reference to all designated agenda
  251  items. However, the association may adopt reasonable rules
  252  governing the frequency, duration, and manner of unit owner
  253  participation.
  254         7. Any unit owner may tape record or videotape a meeting of
  255  the unit owners subject to reasonable rules adopted by the
  256  division.
  257         8. Unless otherwise provided in the bylaws, any vacancy
  258  occurring on the board before the expiration of a term may be
  259  filled by the affirmative vote of the majority of the remaining
  260  directors, even if the remaining directors constitute less than
  261  a quorum, or by the sole remaining director. In the alternative,
  262  a board may hold an election to fill the vacancy, in which case
  263  the election procedures must conform to the requirements of sub
  264  subparagraph subparagraph 3.a. unless the association governs 10
  265  units or fewer less and has opted out of the statutory election
  266  process, in which case the bylaws of the association control.
  267  Unless otherwise provided in the bylaws, a board member
  268  appointed or elected under this section shall fill the vacancy
  269  for the unexpired term of the seat being filled. Filling
  270  vacancies created by recall is governed by paragraph (j) and
  271  rules adopted by the division.
  272  
  273  Notwithstanding subparagraph subparagraphs (b)2. and sub
  274  subparagraph (d)3.a., an association of 10 or fewer units may,
  275  by the affirmative vote of a majority of the total voting
  276  interests, provide for different voting and election procedures
  277  in its bylaws, which vote may be by a proxy specifically
  278  delineating the different voting and election procedures. The
  279  different voting and election procedures may provide for
  280  elections to be conducted by limited or general proxy.
  281         (l) Certificate of compliance.—There shall be a provision
  282  that a certificate of compliance from a licensed electrical
  283  contractor or electrician may be accepted by the association’s
  284  board as evidence of compliance of the condominium units with
  285  the applicable fire and life safety code. Notwithstanding the
  286  provisions of chapter 633 or of any other code, statute,
  287  ordinance, administrative rule, or regulation, or any
  288  interpretation of the foregoing, an association, condominium, or
  289  unit owner is not obligated to retrofit the common elements or
  290  units of a residential condominium with a fire sprinkler system
  291  or other engineered lifesafety system in a building that has
  292  been certified for occupancy by the applicable governmental
  293  entity, if the unit owners have voted to forego such
  294  retrofitting and engineered lifesafety system by the affirmative
  295  vote of two-thirds of all voting interests in the affected
  296  condominium. However, a condominium association may not vote to
  297  forego the retrofitting with a fire sprinkler system of common
  298  areas in a high-rise building. For purposes of this subsection,
  299  the term “high-rise building” means a building that is greater
  300  than 75 feet in height where the building height is measured
  301  from the lowest level of fire department access to the floor of
  302  the highest occupiable story. For purposes of this subsection,
  303  the term “common areas” means any enclosed hallway, corridor,
  304  lobby, stairwell, or entryway. In no event shall the local
  305  authority having jurisdiction require completion of retrofitting
  306  of common areas with a sprinkler system before the end of 2025
  307  2014.
  308         1. A vote to forego retrofitting may be obtained by limited
  309  proxy or by a ballot personally cast at a duly called membership
  310  meeting, or by execution of a written consent by the member, and
  311  shall be effective upon the recording of a certificate attesting
  312  to such vote in the public records of the county where the
  313  condominium is located. The association shall mail, hand
  314  deliver, or electronically transmit to each unit owner written
  315  notice at least 14 days prior to such membership meeting in
  316  which the vote to forego retrofitting of the required fire
  317  sprinkler system is to take place. Within 30 days after the
  318  association’s opt-out vote, notice of the results of the opt-out
  319  vote shall be mailed, hand delivered, or electronically
  320  transmitted to all unit owners. Evidence of compliance with this
  321  30-day notice shall be made by an affidavit executed by the
  322  person providing the notice and filed among the official records
  323  of the association. After such notice is provided to each owner,
  324  a copy of such notice shall be provided by the current owner to
  325  a new owner prior to closing and shall be provided by a unit
  326  owner to a renter prior to signing a lease.
  327         2. As part of the information collected annually from
  328  condominiums, the division shall require condominium
  329  associations to report the membership vote and recording of a
  330  certificate under this subsection and, if retrofitting has been
  331  undertaken, the per-unit cost of such work. The division shall
  332  annually report to the Division of State Fire Marshal of the
  333  Department of Financial Services the number of condominiums that
  334  have elected to forego retrofitting.
  335         (n) Director or officer delinquencies.—A director or
  336  officer more than 90 days delinquent in the payment of any fee,
  337  fine, or regular or special assessments shall be deemed to have
  338  abandoned the office, creating a vacancy in the office to be
  339  filled according to law.
  340  
  341  ================= T I T L E  A M E N D M E N T ================
  342         And the title is amended as follows:
  343         Delete line 35
  344  and insert:
  345         specified provision; amending s. 718.112, F.S.;
  346         conforming cross-references; revising requirements for
  347         the reappointment of certain board members; revising
  348         board eligibility requirements; revising notice
  349         requirements for board candidates; establishing
  350         requirements for newly elected board members;
  351         extending the period during which condominium common
  352         areas do not have to be retrofitted with sprinkler
  353         systems; providing that certain directors and officers
  354         delinquent in the payment of any fee, fine, or regular
  355         or special assessments shall be deemed to have
  356         abandoned their office; providing an effective date.