Florida Senate - 2016                                    SB 1512
       
       
        
       By Senator Soto
       
       14-01622-16                                           20161512__
    1                        A bill to be entitled                      
    2         An act relating to community association managers;
    3         creating s. 468.430, F.S.; providing a short title;
    4         reordering and amending s. 468.431, F.S.; revising
    5         definitions; amending s. 468.4315, F.S.; renaming the
    6         Regulatory Council of Community Association Managers
    7         as the Board of Community Association Managers;
    8         revising membership requirements for members of the
    9         board; providing that a unit owner is not prohibited
   10         from serving on the board; providing that members are
   11         appointed for staggered terms; authorizing removal of
   12         members from the board under certain circumstances;
   13         authorizing the board to adopt rules under certain
   14         circumstances; revising and providing responsibilities
   15         relating to the board; revising circumstances under
   16         which a member is entitled to receive per diem and
   17         travel expenses; authorizing the board to consult with
   18         the Division of Common Interest Communities and the
   19         Community Association Living Study Council under
   20         certain circumstances; conforming provisions to
   21         changes made by the act; amending s. 468.432, F.S.;
   22         deleting an obsolete date; specifying that a community
   23         association management firm must be actively
   24         registered with the Secretary of State; providing that
   25         community association manager licenses expire and must
   26         be renewed every 2 years and specifying related
   27         renewal fees; conforming provisions to changes made by
   28         the act; amending s. 468.433, F.S.; requiring rather
   29         than authorizing the Department of Business and
   30         Professional Regulation to refuse to certify an
   31         applicant under certain circumstances; revising
   32         requirements for licensure by examination; conforming
   33         provisions to changes made by the act; amending s.
   34         468.4336, F.S.; conforming provisions to changes made
   35         by the act; amending s. 468.4337, F.S.; specifying
   36         that the department may not renew a community
   37         association manager’s license under certain
   38         circumstances; revising continuing education
   39         requirements for license renewal; amending s.
   40         468.4338, F.S.; conforming provisions to changes made
   41         by the act; amending s. 468.435, F.S.; deleting
   42         certain minimum fees; requiring that the renewal of
   43         license fee be based on a certain estimate; specifying
   44         the maximum that may be charged for renewals;
   45         specifying the account into which collected fees are
   46         deposited; amending s. 468.436, F.S.; requiring the
   47         department to consider damages that may occur if an
   48         inquiry is not expedited during a complaint
   49         investigation; requiring the department to conduct a
   50         timely investigation; revising the timeline for an
   51         investigation; requiring that the licenses of
   52         community association managers or firms be suspended
   53         under certain circumstances; prohibiting the
   54         performance of certain services while a criminal
   55         charge is pending; providing for reinstatement under
   56         certain circumstances; conforming provisions to
   57         changes made by the act; amending s. 468.4365, F.S.;
   58         revising provisions relating to the availability of
   59         disciplinary records and proceedings; amending s.
   60         468.438, F.S.; making a technical change; providing an
   61         effective date.
   62          
   63  Be It Enacted by the Legislature of the State of Florida:
   64  
   65         Section 1. Section 468.430, Florida Statutes, is created to
   66  read:
   67         468.430 Short title.—This part may be cited as the
   68  “Community Association Management Act.”
   69         Section 2. Section 468.431, Florida Statutes, is amended to
   70  read:
   71         468.431 Definitions.—As used in this part:
   72         (2)(1) “Community association” or “association” means a
   73  residential homeowner, condominium, cooperative, or timeshare
   74  homeowners’ association in which membership is a condition of
   75  ownership of a unit that in a planned unit development, or of a
   76  lot for a home or a mobile home, or of a townhouse, villa,
   77  condominium, cooperative, or other residential unit which is
   78  part of a residential development scheme and which is authorized
   79  to impose a fee which may become a lien on the parcel.
   80         (3)(2) “Community association management” means any of the
   81  following practices requiring substantial specialized knowledge,
   82  judgment, and managerial skill when done for remuneration and
   83  when the association or associations served contain more than 10
   84  units or have an annual budget or budgets in excess of $100,000:
   85  controlling or disbursing funds of a community association,
   86  preparing budgets or other financial documents for a community
   87  association, assisting in the noticing or conduct of community
   88  association meetings, determining the number of days required
   89  for statutory notices, determining amounts due to the
   90  association, collecting amounts due to the association before
   91  the filing of a civil action, calculating the votes required for
   92  a quorum or to approve a proposition or amendment, completing
   93  forms related to the management of a community association that
   94  have been created by statute or by a state agency, drafting
   95  meeting notices and agendas, calculating and preparing
   96  certificates of assessment and estoppel certificates, responding
   97  to requests for certificates of assessment and estoppel
   98  certificates, negotiating monetary or performance terms of a
   99  contract subject to approval by an association, drafting
  100  prearbitration demands, coordinating or performing maintenance
  101  for real or personal property and other related routine services
  102  involved in the operation of a community association, providing
  103  services requiring fundamental knowledge or skills as described
  104  in s. 468.433(3), and complying with the association’s governing
  105  documents and the requirements of law as necessary to perform
  106  such practices. A person who performs clerical or ministerial
  107  functions under the direct supervision and control of a licensed
  108  manager or who is charged only with performing the maintenance
  109  of a community association and who does not assist in any of the
  110  management services described in this subsection is not required
  111  to be licensed under this part.
  112         (4)(3) “Community association management firm” means a
  113  corporation, limited liability company, partnership, trust,
  114  association, sole proprietorship, or other similar organization
  115  engaging in the business of community association management for
  116  the purpose of providing any of the services described in
  117  subsection (3) (2).
  118         (5)(4) “Community association manager” means a natural
  119  person who is licensed pursuant to this part to perform
  120  community association management services.
  121         (1)(5)“Board” “Council” means the Board Regulatory Council
  122  of Community Association Managers.
  123         (6) “Department” means the Department of Business and
  124  Professional Regulation.
  125         Section 3. Section 468.4315, Florida Statutes, is amended
  126  to read:
  127         468.4315 Board Regulatory Council of Community Association
  128  Managers.—
  129         (1) The Board Regulatory Council of Community Association
  130  Managers is created within the department and shall consist of
  131  seven members appointed by the Governor and confirmed by the
  132  Senate. Members of the board serving on or before July 1, 2016,
  133  shall continue as members of the board consistent with the
  134  provisions of this section.
  135         (a) Five members of the board council shall be licensed
  136  community association managers, one of whom may be a community
  137  association manager employed by a timeshare managing entity as
  138  described in ss. 468.438 and 721.13, who have held an active
  139  license for at least 5 years. The remaining two board council
  140  members shall be residents of this state, must not be or ever
  141  have been connected with the business of community association
  142  management, and are shall not be prohibited from serving because
  143  the member is or has been a resident, unit owner, or board
  144  member of a community association.
  145         (b) The Governor shall appoint members for staggered terms
  146  of 4 years. Such members shall serve until their successors are
  147  appointed. Members’ service on the board council shall begin
  148  upon appointment and shall continue until their successors are
  149  appointed or they are removed because of two unexcused absences
  150  or resignation successors are appointed.
  151         (2) The board council may adopt rules relating to the
  152  licensure examination, continuing education requirements,
  153  continuing education providers, fees, and professional practice
  154  standards. The board may adopt rules pursuant to ss. 120.536(1)
  155  and 120.54 to implement the provisions of this part or chapter
  156  455 conferring duties upon it and to assist the department in
  157  carrying out the duties and authorities conferred upon the
  158  department by this part.
  159         (3) To the extent the council is authorized to exercise
  160  functions otherwise exercised by a board pursuant to chapter
  161  455, the provisions of chapter 455 and s. 20.165 relating to
  162  regulatory boards shall apply, including, but not limited to,
  163  provisions relating to board rules and the accountability and
  164  liability of board members. All proceedings and actions of the
  165  council are subject to the provisions of chapter 120. In
  166  addition, the provisions of chapter 455 and s. 20.165 shall
  167  apply to the department in carrying out the duties and
  168  authorities conferred upon the department by this part.
  169         (3)(4) The board council may establish a public education
  170  program relating to professional community association
  171  management.
  172         (4)(5) Members of the board council shall serve without
  173  compensation but are entitled to receive per diem and travel
  174  expenses pursuant to s. 112.061 while carrying out business
  175  approved by the board, the chair of the board, or the division
  176  between meetings council.
  177         (5)(6) The responsibilities of the board council shall
  178  include, but are not be limited to:
  179         (a) Receiving input regarding issues of concern with
  180  respect to community association management and recommendations
  181  for changes in applicable laws.
  182         (b) Reviewing, evaluating, and advising the division
  183  concerning revisions and adoption of rules affecting community
  184  association management and associations.
  185         (c) Recommending improvements, if needed, in the education
  186  programs offered by the division.
  187         (6) The board may freely consult with the Division of
  188  Common Interest Communities of the Department of Business and
  189  Professional Regulation and the Community Association Living
  190  Study Council to coordinate efforts for regulatory and
  191  legislative improvements.
  192         Section 4. Section 468.432, Florida Statutes, is amended to
  193  read:
  194         468.432 Licensure of community association managers and
  195  community association management firms; exceptions.—
  196         (1) A person shall not manage or hold herself or himself
  197  out to the public as being able to manage a community
  198  association in this state unless she or he is licensed by the
  199  department in accordance with the provisions of this part.
  200  However, nothing in this part prohibits any person licensed in
  201  this state under any other law or court rule from engaging in
  202  the profession for which she or he is licensed.
  203         (2) As of January 1, 2009, A community association
  204  management firm or other similar organization responsible for
  205  the management of more than 10 units or a budget of $100,000 or
  206  greater shall not engage, or hold itself out to the public as
  207  being able to engage, in the business of community association
  208  management in this state unless it is licensed by the department
  209  as a community association management firm in accordance with
  210  the provisions of this part.
  211         (a) A community association management firm or other
  212  similar organization desiring to be licensed as a community
  213  association management firm shall apply to the department on a
  214  form approved by the department, together with the application
  215  and licensure fees required by s. 468.435(1)(a) and (c). Each
  216  community association management firm applying for licensure
  217  under this subsection must be actively registered with the
  218  Secretary of State and authorized to do business in this state.
  219         (b) Each applicant shall designate on its application a
  220  licensed community association manager who shall be required to
  221  respond to all inquiries from and investigations by the
  222  department or division.
  223         (c) Each licensed community association management firm
  224  shall notify the department within 30 days after any change of
  225  information contained in the application upon which licensure is
  226  based.
  227         (d) Community association manager licenses shall expire on
  228  September 30 of even-numbered years and must be renewed every 2
  229  years. An application for renewal shall be accompanied by the
  230  renewal of license fee as required by s. 468.435(1)(d).
  231         (e)(d) Community association management firm licenses shall
  232  expire on September 30 of odd-numbered years and shall be
  233  renewed every 2 years. An application for renewal shall be
  234  accompanied by the renewal fee as required by s. 468.435(1)(d).
  235         (f)(e) The department shall license each applicant whom the
  236  department certifies as meeting the requirements of this
  237  subsection.
  238         (g)(f) If the license of at least one individual active
  239  community association manager member is not in force, the
  240  license of the community association management firm or other
  241  similar organization is suspended canceled automatically during
  242  that time.
  243         (h)(g) Any community association management firm or other
  244  similar organization agrees by being licensed that it will
  245  employ only licensed persons in the direct provision of
  246  community association management services as defined described
  247  in s. 468.431(3).
  248         Section 5. Section 468.433, Florida Statutes, is amended to
  249  read:
  250         468.433 Licensure by examination.—
  251         (1) A person desiring to be licensed as a community
  252  association manager shall apply to the department to take the
  253  licensure examination. Each applicant must file a complete set
  254  of fingerprints that have been taken by an authorized law
  255  enforcement officer, which set of fingerprints shall be
  256  submitted to the Department of Law Enforcement for state
  257  processing and to the Federal Bureau of Investigation for
  258  federal processing. The cost of processing shall be borne by the
  259  applicant.
  260         (2) The department shall examine each applicant who must be
  261  is at least 18 years of age, who has successfully completed all
  262  prelicensure education requirements, and who the department
  263  certifies is of good moral character.
  264         (a) Good moral character means a personal history of
  265  honesty, fairness, and respect for the rights of others and for
  266  the laws of this state and nation.
  267         (b) The department shall may refuse to certify an applicant
  268  only if:
  269         1. There is a substantial connection between the lack of
  270  good moral character of the applicant and the professional
  271  responsibilities of a community association manager;
  272         2. The finding by the department of lack of good moral
  273  character is supported by clear and convincing evidence; or
  274         3. The applicant is found to have provided management
  275  services requiring licensure without the requisite license.
  276         (c) When an applicant is found to be unqualified for a
  277  license because of a lack of good moral character, the
  278  department shall furnish the applicant a statement containing
  279  its findings, a complete record of the evidence upon which the
  280  determination was based, and a notice of the rights of the
  281  applicant to a rehearing and appeal.
  282         (d) The board council shall establish by rule the required
  283  amount of prelicensure education that, which shall consist of
  284  not more than 40 24 hours of in-person instruction by a
  285  department-approved provider and which shall cover all areas of
  286  the examination specified in subsection (3). Such instruction
  287  shall be completed within 12 months prior to the date of the
  288  examination. Prelicensure education providers shall be
  289  considered continuing education providers for purposes of
  290  establishing provider approval fees. A licensee shall not be
  291  required to comply with the continuing education requirements of
  292  s. 468.4337 prior to the first license renewal. The board
  293  department shall, by rule, set standards for exceptions to the
  294  requirement of in-person instruction in cases of hardship or
  295  disability.
  296         (3) The board council shall approve an examination for
  297  licensure. The examination must demonstrate that the applicant
  298  has a fundamental knowledge of state and federal laws relating
  299  to the operation of all types of community associations and
  300  state laws relating to corporations and nonprofit corporations,
  301  proper preparation of community association budgets, proper
  302  procedures for noticing and conducting community association
  303  meetings, insurance matters relating to community associations,
  304  and management skills and knowledge of:
  305         (a) State and federal laws relating to the operation of all
  306  types of community associations.
  307         (b) State and federal laws relating to corporations and
  308  nonprofit corporations.
  309         (c) Compliance with association governing documents and the
  310  legal requirements required to perform related practices.
  311         (d) Preparing the community association budget.
  312         (e) Calculating reserve requirements.
  313         (f) Determining amounts due to the association and
  314  calculating and preparing certificates of assessment and
  315  estoppel certificates.
  316         (g) Procedures for noticing and conducting community
  317  association meetings.
  318         (h) Insurance matters relating to community associations.
  319         (i) Drafting meeting notices and agendas.
  320         (j) Determining the timing, method, and form of providing
  321  meeting notices.
  322         (k) Determining the number of days required for statutory
  323  notices.
  324         (l) Procedures for collecting amounts due to the
  325  association before filing a civil action.
  326         (m) Drafting prearbitration demands.
  327         (n) Determining the votes necessary for a quorum, to
  328  approve a proposition or an amendment, or to take certain
  329  actions.
  330         (o) Preparing, modifying, or completing forms relating to
  331  community association management which have been created by
  332  statute or a state agency.
  333         (p) Coordinating or performing maintenance on real or
  334  personal property and other related routine services involved in
  335  the operation of a community association.
  336         (q) Drafting a “yes” or “no” proxy voting question
  337  concerning reserves, financial reporting requirements, excess
  338  membership expenses, or adopting amendments to the documents.
  339         (r) Negotiating monetary or performance contract terms
  340  subject to approval by an association.
  341         (s) Drafting amendments and certificates of amendments that
  342  are recorded in the official records to declarations of
  343  covenants, bylaws, and articles of incorporation with the advice
  344  of counsel when such documents are to be voted upon by the
  345  members.
  346         (t) Modifying or completing proxy forms for questions
  347  addressed at meetings.
  348         (u) Providing assistance with preparing, reviewing,
  349  drafting, or executing contracts.
  350         (v) Determining, from county records, owners required to
  351  receive pre-lien letters.
  352         (4) A community association manager is liable for damages
  353  incurred from offering incorrect advice.
  354         (5)(4) The department shall issue a license to practice in
  355  this state as a community association manager to a any qualified
  356  applicant who successfully completes the examination in
  357  accordance with this section and pays the appropriate fee.
  358         Section 6. Section 468.4336, Florida Statutes, is amended
  359  to read:
  360         468.4336 Renewal of license.—
  361         (1) The board department shall renew a license upon receipt
  362  of the renewal application and fee and upon proof of compliance
  363  with the continuing education requirements of s. 468.4337.
  364         (2) The board department shall adopt rules establishing a
  365  procedure for the biennial renewal of licenses.
  366         Section 7. Section 468.4337, Florida Statutes, is amended
  367  to read:
  368         468.4337 Continuing education.—The department may not renew
  369  a community association manager’s license until the licensee
  370  submits proof of completion that the licensee has completed the
  371  requisite hours of the requisite hours of continuing education.
  372  At least 20 No more than 10 hours of biennial continuing
  373  education are annually shall be required for renewal of a
  374  license. The number of hours, criteria, and course content,
  375  which shall include at least 2 hours of annual legal update
  376  seminars, shall be approved by the board council by rule.
  377         Section 8. Section 468.4338, Florida Statutes, is amended
  378  to read:
  379         468.4338 Reactivation; continuing education.—The board
  380  council shall prescribe by rule continuing education
  381  requirements for reactivating a license. The continuing
  382  education requirements for reactivating a license may not exceed
  383  one renewal cycle of continuing education.
  384         Section 9. Section 468.435, Florida Statutes, is amended to
  385  read:
  386         468.435 Fees; establishment; disposition.—
  387         (1) The board council shall, by rule, establish fees for
  388  the described purposes and within the ranges specified in this
  389  section:
  390         (a) Application fee: not less than $25, or more than $50.
  391         (b) Examination fee: not less than $25, or more than $100.
  392         (c) Initial license fee: not less than $25, or more than
  393  $100.
  394         (d) Renewal of license fee: not less than $25, or more than
  395  $100.
  396         (e) Delinquent license fee: not less than $25, or more than
  397  $50.
  398         (f) Inactive license fee: not less than $10, or more than
  399  $25.
  400         (2) The renewal of license fee shall be determined based on
  401  an estimate of the amount required annually for the board to
  402  fulfill its responsibilities under this section, rounded to the
  403  next highest even dollar amount, and may not exceed $100 Until
  404  the council establishes fees under subsection (1), the lower
  405  amount in each range shall apply.
  406         (3) Fees collected under this section shall be deposited in
  407  the Regulatory Council of Community Association Managers account
  408  in to the credit of the Professional Regulation Trust Fund.
  409         (4) The board council shall establish fees that are
  410  adequate to fund the cost to implement the provisions of this
  411  part. Fees shall be based on the department estimates of the
  412  revenue required to implement this part and the provisions of
  413  law with respect to the regulation of community association
  414  managers and firms.
  415         Section 10. Section 468.436, Florida Statutes, is amended
  416  to read:
  417         468.436 Disciplinary proceedings.—
  418         (1) The department shall investigate complaints and
  419  allegations of a violation of this part, chapter 455, or any
  420  rule adopted thereunder, filed against community association
  421  managers or firms or and forwarded from other divisions of under
  422  the department of Business and Professional Regulation.
  423         (a) After a complaint is received, the department shall
  424  conduct its inquiry with due regard to the interests of the
  425  affected parties and consideration of damages that may occur if
  426  the inquiry is not expedited.
  427         (b) Within 30 days after receipt of a complaint, the
  428  department shall acknowledge the complaint in writing and notify
  429  the complainant whether or not the complaint is within the
  430  jurisdiction of the department and whether or not additional
  431  information is needed by the department from the complainant.
  432         (c) The department shall conduct a timely an investigation
  433  and shall, within 45 90 days after receipt of the original
  434  complaint or of a timely request for additional information,
  435  take action upon the complaint. However, the failure to complete
  436  the investigation within 45 90 days does not prevent the
  437  department from continuing the investigation, accepting or
  438  considering evidence obtained or received after 45 90 days, or
  439  taking administrative action if reasonable cause exists to
  440  believe that a violation of this part, chapter 455, or a rule of
  441  the department has occurred.
  442         (d) If an investigation is not completed within the time
  443  limits established in this subsection, the department shall, at
  444  least monthly on a monthly basis, notify the complainant in
  445  writing of the status of the investigation. When reporting its
  446  action to the complainant, the department shall inform the
  447  complainant of any right to a hearing pursuant to ss. 120.569
  448  and 120.57.
  449         (2) The department shall suspend the license of a community
  450  association manager or firm charged by information or indictment
  451  with a felony offense. While the community association manager
  452  or firm has a criminal charge pending, it may not perform
  453  services of community association management. However, if the
  454  charges are resolved without a finding of guilt, the community
  455  association manager or firm shall be reinstated for the
  456  remainder of its term, if any.
  457         (3)(2) The following acts constitute grounds for which the
  458  disciplinary actions in subsection (5) (4) may be taken:
  459         (a) Violation of any provision of s. 455.227(1).
  460         (b)1. Violation of any provision of this part.
  461         2. Violation of any lawful order or rule rendered or
  462  adopted by the department or the board council.
  463         3. Being convicted of or pleading nolo contendere to a
  464  felony in any court in the United States.
  465         4. Obtaining a license or certification or any other order,
  466  ruling, or authorization by means of fraud, misrepresentation,
  467  or concealment of material facts.
  468         5. Committing acts of gross misconduct or gross negligence
  469  in connection with the profession.
  470         6. Contracting, on behalf of an association, with any
  471  entity in which the licensee has a financial interest that is
  472  not disclosed.
  473         7. Violating any provision of chapter 718 or chapter 721,
  474  chapter 719, or chapter 720 during the course of performing
  475  community association management services pursuant to a contract
  476  with a community association as defined in s. 468.431(2)
  477  468.431(1).
  478         (4)(3) The board council shall specify by rule the acts or
  479  omissions that constitute a violation of subsection (3) (2).
  480         (5)(4) When the department finds any community association
  481  manager or firm guilty of any of the grounds set forth in
  482  subsection (3) (2), it may enter an order imposing one or more
  483  of the following penalties:
  484         (a) Denial of an application for licensure.
  485         (b) Revocation or suspension of a license.
  486         (c) Imposition of an administrative fine not to exceed
  487  $5,000 for each count or separate offense.
  488         (d) Issuance of a reprimand.
  489         (e) Placement of the community association manager or firm
  490  on probation for a period of time and subject to such conditions
  491  as the department specifies.
  492         (f) Restriction of the authorized scope of practice by the
  493  community association manager or firm.
  494         (6)(5) The department may reissue the license of a
  495  disciplined community association manager or firm upon
  496  certification by the board department that the disciplined
  497  person or firm has complied with all of the terms and conditions
  498  set forth in the final order.
  499         Section 11. Section 468.4365, Florida Statutes, is amended
  500  to read:
  501         468.4365 Availability of disciplinary records and
  502  proceedings.—Notwithstanding s. 455.225, any complaint or record
  503  maintained by the Department of Business and Professional
  504  Regulation pursuant to the Discipline of a licensed community
  505  association manager or firm and any proceeding held by the
  506  department to discipline a licensed community association
  507  manager or firm shall remain open and available to the public
  508  pursuant to s. 286.011.
  509         Section 12. Subsection (2) of section 468.438, Florida
  510  Statutes, is amended to read:
  511         468.438 Timeshare management firms.—
  512         (2) A timeshare management firm is shall only be required
  513  to employ at least one individual licensed under this part at
  514  each noncontiguous geographic location at which the management
  515  firm provides community association management. No other person
  516  providing community association management on behalf of such
  517  management firms shall be required to hold a license pursuant to
  518  this part, provided that any community association management
  519  provided pursuant to this section must be performed under the
  520  direct supervision and control of a licensed community
  521  association manager. A community association manager licensed
  522  pursuant to this part and employed by a timeshare management
  523  firm pursuant to this section assumes responsibility for all
  524  community association management performed by unlicensed persons
  525  employed by the timeshare management firm.
  526         Section 13. This act shall take effect July 1, 2016.