Senate Bill sb1184e1

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    CS for CS for CS for SB 1184                   First Engrossed



  1                      A bill to be entitled

  2         An act relating to condominium and community

  3         associations; amending s. 718.111, F.S.;

  4         providing immunity from liability for certain

  5         information provided by associations to

  6         prospective purchasers or lienholders under

  7         certain circumstances; amending s. 720.303,

  8         F.S.; requiring specific notice to be given to

  9         association members before certain assessments

10         or rule changes may be considered at a meeting;

11         amending s. 768.1325, F.S.; providing immunity

12         from civil liability for community associations

13         that provide automated defibrillator devices

14         under certain circumstances; prohibiting

15         insurers from requiring associations to

16         purchase medical malpractice coverage as a

17         condition of issuing other coverage;

18         prohibiting insurers from excluding from

19         coverage under a general liability policy

20         damages resulting from the use of an automated

21         external defibrillator device; amending ss.

22         718.112 and 719.1055, F.S.; revising

23         notification and voting procedures with respect

24         to any vote to forego retrofitting of the

25         common areas of condominiums and cooperatives

26         with fire sprinkler systems; amending s.

27         718.503, F.S.; requiring unit owners who are

28         not developers to provide a specific question

29         and answer disclosure document to certain

30         prospective purchasers; creating s. 720.401,

31         F.S.; providing legislative intent relating to


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 1         the revival of governance of a community;

 2         creating s. 720.402, F.S.; providing

 3         eligibility to revive governance documents;

 4         specifying prerequisites to reviving governance

 5         documents; creating s. 720.403, F.S.; requiring

 6         the formation of an organizing committee;

 7         providing for membership; providing duties and

 8         responsibilities of the organizing committee;

 9         directing the organizing committee to prepare

10         certain documents; providing for the contents

11         of the documents; providing for a vote of the

12         eligible parcel owners; creating s. 720.404,

13         F.S.; directing the organizing committee to

14         file certain documents with the Department of

15         Community Affairs; specifies the content of the

16         submission to the department; requiring the

17         department to approve or disapprove the request

18         to revive the governance documents within a

19         specified time period; creating s. 720.405,

20         F.S.; requiring the organizing committee to

21         file and record certain documents within a

22         specified time period; directing the organizing

23         committee to give all affected parcel owners a

24         copy of the documents filed and recorded;

25         providing for judicial determination of the

26         effects of revived covenants on parcels;

27         providing for effects of such a judicial

28         determination; amending ss. 720.301 and

29         720.302, F.S.; conforming provisions to changes

30         made by the act; providing definitions;

31         prescribing a legislative purpose of providing


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 1         alternative dispute resolution procedures for

 2         disputes involving elections and recalls;

 3         amending s. 720.303, F.S.; prescribing the

 4         right of an association to enforce deed

 5         restrictions; prescribing rights of members and

 6         parcel owners to attend and address association

 7         board meetings and to have items placed on an

 8         agenda; prescribing additional requirements for

 9         notice of meetings; providing for additional

10         materials to be maintained as records;

11         providing additional requirements and

12         limitations with respect to inspecting and

13         copying records; providing requirements with

14         respect to financial statements; providing

15         procedures for recall of directors; amending s.

16         720.304, F.S.; prescribing owners' rights with

17         respect to flag display; prohibiting certain

18         lawsuits against parcel owners; providing

19         penalties; allowing a parcel owner to construct

20         a ramp for a parcel resident who has a medical

21         need for a ramp; providing conditions; allowing

22         the display of a security-services sign;

23         amending s. 720.305, F.S.; providing that a

24         fine by an association cannot become a lien

25         against a parcel; providing for attorney's fees

26         in actions to recover fines; creating s.

27         720.3055, F.S.; prescribing requirements for

28         contracts for products and services; amending

29         s. 720.306, F.S.; providing for notice of and

30         right to speak at member meetings; requiring

31         election disputes between a member and an


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 1         association to be submitted to mandatory

 2         binding arbitration; amending s. 720.311, F.S.;

 3         expanding requirements and guidelines with

 4         respect to alternative dispute resolution;

 5         providing requirements for mediation and

 6         arbitration; providing for training and

 7         education programs; amending s. 718.110, F.S.;

 8         restricting the application of certain

 9         amendments restricting owners' rental rights;

10         transferring, renumbering, and amending s.

11         689.26, F.S.; modifying the disclosure form

12         that a prospective purchaser must receive

13         before a contract for sale; providing that

14         certain contracts are voidable for a specified

15         period; requiring that a purchaser provide

16         written notice of cancellation; transferring

17         and renumbering s. 689.265, F.S., relating to

18         required financial reports of certain

19         residential subdivision developers; amending s.

20         498.025, F.S., relating to the disposition of

21         subdivided lands; conforming cross-references;

22         creating s. 720.602, F.S.; providing remedies

23         for publication of false and misleading

24         information; amending s. 34.01, F.S.; providing

25         jurisdiction of disputes involving homeowners'

26         associations; amending ss. 316.00825, 558.002,

27         F.S.; conforming cross-references; providing

28         for internal organization of ch. 720, F.S.;

29         amending s. 190.012, F.S.; providing for the

30         enforcement of deed restrictions in certain

31         circumstances; amending s. 190.046, F.S.;


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 1         providing for additional dissolution

 2         procedures; amending s. 190.006, F.S.;

 3         specifying procedures for selecting a chair at

 4         the initial landowners' meeting; specifying

 5         requirements for proxy voting; requiring notice

 6         of landowners' elections; specifying the terms

 7         of certain supervisors; providing for

 8         nonpartisan elections; specifying the time that

 9         resident supervisors assume office; authorizing

10         the supervisor of elections to designate seat

11         numbers for resident supervisors of the board;

12         providing procedures for filing qualifying

13         papers; allowing candidates the option of

14         paying a filing fee to qualify for the

15         election; specifying payment requirements;

16         specifying the number of petition signatures

17         required to qualify for the election; requiring

18         the county canvassing board to certify the

19         results of resident elections; providing an

20         effective date.

21  

22  Be It Enacted by the Legislature of the State of Florida:

23  

24         Section 1.  Paragraph (e) of subsection (12) of section

25  718.111, Florida Statutes, is amended to read:

26         718.111  The association.--

27         (12)  OFFICIAL RECORDS.--

28         (e)1.  The association or its authorized agent is shall

29  not be required to provide a prospective purchaser or

30  lienholder with information about the condominium or the

31  association other than information or documents required by


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 1  this chapter to be made available or disclosed. The

 2  association or its authorized agent may shall be entitled to

 3  charge a reasonable fee to the prospective purchaser,

 4  lienholder, or the current unit owner for its time in

 5  providing good faith responses to requests for information by

 6  or on behalf of a prospective purchaser or lienholder, other

 7  than that required by law, if the provided that such fee does

 8  shall not exceed $150 plus the reasonable cost of photocopying

 9  and any attorney's fees incurred by the association in

10  connection with the association's response.

11         2.  An association and its authorized agent are not

12  liable for providing such information in good faith pursuant

13  to a written request if the person providing the information

14  includes a written statement in substantially the following

15  form: "The responses herein are made in good faith and to the

16  best of my ability as to their accuracy."

17         Section 2.  Subsection (2) of section 720.303, Florida

18  Statutes, is amended to read:

19         720.303  Association powers and duties; meetings of

20  board; official records; budgets; financial reporting.--

21         (2)  BOARD MEETINGS.--A meeting of the board of

22  directors of an association occurs whenever a quorum of the

23  board gathers to conduct association business.  All meetings

24  of the board must be open to all members except for meetings

25  between the board and its attorney with respect to proposed or

26  pending litigation where the contents of the discussion would

27  otherwise be governed by the attorney-client privilege.

28  Notices of all board meetings must be posted in a conspicuous

29  place in the community at least 48 hours in advance of a

30  meeting, except in an emergency.  In the alternative, if

31  notice is not posted in a conspicuous place in the community,


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 1  notice of each board meeting must be mailed or delivered to

 2  each member at least 7 days before the meeting, except in an

 3  emergency. Notwithstanding this general notice requirement,

 4  for communities with more than 100 members, the bylaws may

 5  provide for a reasonable alternative to posting or mailing of

 6  notice for each board meeting, including publication of

 7  notice, provision of a schedule of board meetings, or the

 8  conspicuous posting and repeated broadcasting of the notice on

 9  a closed-circuit cable television system serving the

10  homeowners' association. However, if broadcast notice is used

11  in lieu of a notice posted physically in the community, the

12  notice must be broadcast at least four times every broadcast

13  hour of each day that a posted notice is otherwise required.

14  When broadcast notice is provided, the notice and agenda must

15  be broadcast in a manner and for a sufficient continuous

16  length of time so as to allow an average reader to observe the

17  notice and read and comprehend the entire content of the

18  notice and the agenda. The bylaws or amended bylaws may

19  provide for giving notice by electronic transmission in a

20  manner authorized by law for meetings of the board of

21  directors, committee meetings requiring notice under this

22  section, and annual and special meetings of the members;

23  however, a member must consent in writing to receiving notice

24  by electronic transmission. An assessment may not be levied at

25  a board meeting unless a written the notice of the meeting is

26  provided to all members at least 14 days before the meeting,

27  which notice includes a statement that assessments will be

28  considered at the meeting and the nature of the assessments.

29  Rules that regulate the use of parcels in the community may

30  not be adopted, amended, or revoked at a board meeting unless

31  a written meeting notice is provided to all members at least


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 1  14 days before the meeting, which notice includes a statement

 2  that changes to the rules regarding the use of parcels will be

 3  considered at the meeting. Directors may not vote by proxy or

 4  by secret ballot at board meetings, except that secret ballots

 5  may be used in the election of officers.  This subsection also

 6  applies to the meetings of any committee or other similar

 7  body, when a final decision will be made regarding the

 8  expenditure of association funds, and to any body vested with

 9  the power to approve or disapprove architectural decisions

10  with respect to a specific parcel of residential property

11  owned by a member of the community.

12         Section 3.  Subsection (3) of section 768.1325, Florida

13  Statutes, is amended, and subsection (6) is added to that

14  section, to read:

15         768.1325  Cardiac Arrest Survival Act; immunity from

16  civil liability.--

17         (3)  Notwithstanding any other provision of law to the

18  contrary, and except as provided in subsection (4), any person

19  who uses or attempts to use an automated external

20  defibrillator device on a victim of a perceived medical

21  emergency, without objection of the victim of the perceived

22  medical emergency, is immune from civil liability for any harm

23  resulting from the use or attempted use of such device.  In

24  addition, any person who acquired the device, including, but

25  not limited to, a community association organized under

26  chapter 617, chapter 718, chapter 719, chapter 720, chapter

27  721, or chapter 723, is immune from such liability, if the

28  harm was not due to the failure of such acquirer of the device

29  to:

30         (a)  Notify the local emergency medical services

31  medical director of the most recent placement of the device


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 1  within a reasonable period of time after the device was

 2  placed;

 3         (b)  Properly maintain and test the device; or

 4         (c)  Provide appropriate training in the use of the

 5  device to an employee or agent of the acquirer when the

 6  employee or agent was the person who used the device on the

 7  victim, except that such requirement of training does not

 8  apply if:

 9         1.  The employee or agent was not an employee or agent

10  who would have been reasonably expected to use the device; or

11         2.  The period of time elapsing between the engagement

12  of the person as an employee or agent and the occurrence of

13  the harm, or between the acquisition of the device and the

14  occurrence of the harm in any case in which the device was

15  acquired after engagement of the employee or agent, was not a

16  reasonably sufficient period in which to provide the training.

17         (6)  An insurer may not require an acquirer of an

18  automated external defibrillator device which is a community

19  association organized under chapter 617, chapter 718, chapter

20  719, chapter 720, chapter 721, or chapter 723 to purchase

21  medical malpractice liability coverage as a condition of

22  issuing any other coverage carried by the association, and an

23  insurer may not exclude damages resulting from the use of an

24  automated external defibrillator device from coverage under a

25  general liability policy issued to an association.

26         Section 4.  Paragraphs (f) and (l) of subsection (2) of

27  section 718.112, Florida Statutes, are amended to read:

28         718.112  Bylaws.--

29         (2)  REQUIRED PROVISIONS.--The bylaws shall provide for

30  the following and, if they do not do so, shall be deemed to

31  include the following:


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 1         (f)  Annual budget.--

 2         1.  The proposed annual budget of common expenses shall

 3  be detailed and shall show the amounts budgeted by accounts

 4  and expense classifications, including, if applicable, but not

 5  limited to, those expenses listed in s. 718.504(21). A

 6  multicondominium association shall adopt a separate budget of

 7  common expenses for each condominium the association operates

 8  and shall adopt a separate budget of common expenses for the

 9  association. In addition, if the association maintains limited

10  common elements with the cost to be shared only by those

11  entitled to use the limited common elements as provided for in

12  s. 718.113(1), the budget or a schedule attached thereto shall

13  show amounts budgeted therefor. If, after turnover of control

14  of the association to the unit owners, any of the expenses

15  listed in s. 718.504(21) are not applicable, they need not be

16  listed.

17         2.  In addition to annual operating expenses, the

18  budget shall include reserve accounts for capital expenditures

19  and deferred maintenance. These accounts shall include, but

20  are not limited to, roof replacement, building painting, and

21  pavement resurfacing, regardless of the amount of deferred

22  maintenance expense or replacement cost, and for any other

23  item for which the deferred maintenance expense or replacement

24  cost exceeds $10,000. The amount to be reserved shall be

25  computed by means of a formula which is based upon estimated

26  remaining useful life and estimated replacement cost or

27  deferred maintenance expense of each reserve item.  The

28  association may adjust replacement reserve assessments

29  annually to take into account any changes in estimates or

30  extension of the useful life of a reserve item caused by

31  deferred maintenance. This subsection does not apply to an


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 1  adopted budget in which the members of an association have

 2  determined, by a majority vote at a duly called meeting of the

 3  association, to provide no reserves or less reserves than

 4  required by this subsection. However, prior to turnover of

 5  control of an association by a developer to unit owners other

 6  than a developer pursuant to s. 718.301, the developer may

 7  vote to waive the reserves or reduce the funding of reserves

 8  for the first 2 fiscal years of the association's operation,

 9  beginning with the fiscal year in which the initial

10  declaration is recorded, after which time reserves may be

11  waived or reduced only upon the vote of a majority of all

12  nondeveloper voting interests voting in person or by limited

13  proxy at a duly called meeting of the association. If a

14  meeting of the unit owners has been called to determine

15  whether to waive or reduce the funding of reserves, and no

16  such result is achieved or a quorum is not attained, the

17  reserves as included in the budget shall go into effect. After

18  the turnover, the developer may vote its voting interest to

19  waive or reduce the funding of reserves.

20         3.  Reserve funds and any interest accruing thereon

21  shall remain in the reserve account or accounts, and shall be

22  used only for authorized reserve expenditures unless their use

23  for other purposes is approved in advance by a majority vote

24  at a duly called meeting of the association. Prior to turnover

25  of control of an association by a developer to unit owners

26  other than the developer pursuant to s. 718.301, the

27  developer-controlled association shall not vote to use

28  reserves for purposes other than that for which they were

29  intended without the approval of a majority of all

30  nondeveloper voting interests, voting in person or by limited

31  proxy at a duly called meeting of the association.


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 1         4.  In a multicondominium association, The only voting

 2  interests which are eligible to vote on questions that involve

 3  waiving or reducing the funding of reserves, or using existing

 4  reserve funds for purposes other than purposes for which the

 5  reserves were intended, are the voting interests of the units

 6  subject to assessment to fund the reserves in question.

 7         (l)  Certificate of compliance.--There shall be a

 8  provision that a certificate of compliance from a licensed

 9  electrical contractor or electrician may be accepted by the

10  association's board as evidence of compliance of the

11  condominium units with the applicable fire and life safety

12  code. Notwithstanding the provisions of chapter 633 or of any

13  other code, statute, ordinance, administrative rule, or

14  regulation, or any interpretation of the foregoing, an

15  association, condominium, or unit owner is not obligated to

16  retrofit the common elements or units of a residential

17  condominium with a fire sprinkler system or other engineered

18  lifesafety system in a building that has been certified for

19  occupancy by the applicable governmental entity, if the unit

20  owners have voted to forego such retrofitting and engineered

21  lifesafety system by the affirmative vote of two-thirds of all

22  voting interests in the affected condominium. However, a

23  condominium association may not vote to forego the

24  retrofitting with a fire sprinkler system of common areas in a

25  high-rise building. For purposes of this subsection, the term

26  "high-rise building" means a building that is greater than 75

27  feet in height where the building height is measured from the

28  lowest level of fire department access to the floor of the

29  highest occupiable story. For purposes of this subsection, the

30  term "common areas" means any enclosed hallway, corridor,

31  lobby, stairwell, or entryway. In no event shall the local


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 1  authority having jurisdiction require completion of

 2  retrofitting of common areas with a sprinkler system before

 3  the end of 2014.

 4         1.  A vote to forego retrofitting may not be obtained

 5  by general proxy or limited proxy or by a ballot, but shall be

 6  obtained by a vote personally cast at a duly called membership

 7  meeting, or by execution of a written consent by the member,

 8  and shall be effective upon the recording of a certificate

 9  attesting to such vote in the public records of the county

10  where the condominium is located. The association shall mail,

11  hand deliver, or electronically transmit to provide each unit

12  owner written notice at least 14 days prior to such membership

13  meeting in which of the vote to forego retrofitting of the

14  required fire sprinkler system is to take place, in at least

15  16-point bold type, by certified mail, within 20 days after

16  the association's vote. Within 30 days after the association's

17  opt-out vote, notice of the results of the opt-out vote shall

18  be mailed, delivered, or electronically transmitted to all

19  unit owners. Evidence of compliance with this 30-day notice

20  shall be made by an affidavit executed by the person providing

21  the notice and filed among the official records of the

22  association. After such notice is provided to each owner, a

23  copy of such notice shall be provided by the current owner to

24  a new owner prior to closing and shall be provided by a unit

25  owner to a renter prior to signing a lease.

26         2.  As part of the information collected annually from

27  condominiums, the division shall require condominium

28  associations to report the membership vote and recording of a

29  certificate under this subsection and, if retrofitting has

30  been undertaken, the per-unit cost of such work. The division

31  shall annually report to the Division of State Fire Marshal of


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 1  the Department of Financial Services the number of

 2  condominiums that have elected to forego retrofitting.

 3         Section 5.  Paragraph (a) of subsection (5) of section

 4  719.1055, Florida Statutes, is amended to read:

 5         719.1055  Amendment of cooperative documents;

 6  alteration and acquisition of property.--

 7         (5)  Notwithstanding the provisions of chapter 633 or

 8  of any other code, statute, ordinance, administrative rule, or

 9  regulation, or any interpretation of the foregoing, a

10  cooperative or unit owner is not obligated to retrofit the

11  common elements or units of a residential cooperative with a

12  fire sprinkler system or other engineered life safety system

13  in a building that has been certified for occupancy by the

14  applicable governmental entity, if the unit owners have voted

15  to forego such retrofitting and engineered life safety system

16  by the affirmative vote of two-thirds of all voting interests

17  in the affected cooperative. However, a cooperative may not

18  forego the retrofitting with a fire sprinkler system of common

19  areas in a high-rise building. For purposes of this

20  subsection, the term "high-rise building" means a building

21  that is greater than 75 feet in height where the building

22  height is measured from the lowest level of fire department

23  access to the floor of the highest occupiable story. For

24  purposes of this subsection, the term "common areas" means any

25  enclosed hallway, corridor, lobby, stairwell, or entryway. In

26  no event shall the local authority having jurisdiction require

27  completion of retrofitting of common areas with a sprinkler

28  system before the end of 2014.

29         (a)  A vote to forego retrofitting may not be obtained

30  by general proxy or limited proxy or by a ballot, but shall be

31  obtained by a vote personally cast at a duly called membership


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 1  meeting, or by execution of a written consent by the member,

 2  and shall be effective upon the recording of a certificate

 3  attesting to such vote in the public records of the county

 4  where the cooperative is located. The association shall mail,

 5  hand deliver, or electronically transmit to provide each unit

 6  owner written notice at least 14 days prior to such membership

 7  meeting in which of the vote to forego retrofitting of the

 8  required fire sprinkler system is to take place, in at least

 9  16-point bold type, by certified mail, within 20 days after

10  the association's vote. Within 30 days after the association's

11  opt-out vote, notice of the results of the opt-out vote shall

12  be mailed, delivered, or electronically transmitted to all

13  unit owners. Evidence of compliance with this 30-day notice

14  shall be made by an affidavit executed by the person providing

15  the notice and filed among the official records of the

16  association. After such notice is provided to each owner, a

17  copy of such notice shall be provided by the current owner to

18  a new owner prior to closing and shall be provided by a unit

19  owner to a renter prior to signing a lease.

20         Section 6.  Subsection (2) of section 718.503, Florida

21  Statutes, is amended to read:

22         718.503  Developer disclosure prior to sale;

23  nondeveloper unit owner disclosure prior to sale;

24  voidability.--

25         (2)  NONDEVELOPER DISCLOSURE.--

26         (a)  Each unit owner who is not a developer as defined

27  by this chapter shall comply with the provisions of this

28  subsection prior to the sale of his or her unit.  Each

29  prospective purchaser who has entered into a contract for the

30  purchase of a condominium unit is entitled, at the seller's

31  expense, to a current copy of the declaration of condominium,


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 1  articles of incorporation of the association, bylaws, and

 2  rules of the association, and a copy of the financial

 3  information required by s. 718.111, and the document entitled

 4  "Frequently Asked Questions and Answers" required by s.

 5  718.504.

 6         (b)  If a person licensed under part I of chapter 475

 7  provides to or otherwise obtains for a prospective purchaser

 8  the documents described in this subsection, the person is not

 9  liable for any error or inaccuracy contained in the documents.

10         (c)  Each contract entered into after July 1, 1992, for

11  the resale of a residential unit shall contain in conspicuous

12  type either:

13         1.  A clause which states:  THE BUYER HEREBY

14  ACKNOWLEDGES THAT BUYER HAS BEEN PROVIDED A CURRENT COPY OF

15  THE DECLARATION OF CONDOMINIUM, ARTICLES OF INCORPORATION OF

16  THE ASSOCIATION, BYLAWS AND, RULES OF THE ASSOCIATION, AND A

17  COPY OF THE MOST RECENT YEAR-END FINANCIAL INFORMATION AND

18  FREQUENTLY ASKED QUESTIONS AND ANSWERS DOCUMENT MORE THAN 3

19  DAYS, EXCLUDING SATURDAYS, SUNDAYS, AND LEGAL HOLIDAYS, PRIOR

20  TO EXECUTION OF THIS CONTRACT; or

21         2.  A clause which states:  THIS AGREEMENT IS VOIDABLE

22  BY BUYER BY DELIVERING WRITTEN NOTICE OF THE BUYER'S INTENTION

23  TO CANCEL WITHIN 3 DAYS, EXCLUDING SATURDAYS, SUNDAYS, AND

24  LEGAL HOLIDAYS, AFTER THE DATE OF EXECUTION OF THIS AGREEMENT

25  BY THE BUYER AND RECEIPT BY BUYER OF A CURRENT COPY OF THE

26  DECLARATION OF CONDOMINIUM, ARTICLES OF INCORPORATION, BYLAWS

27  AND, RULES OF THE ASSOCIATION, AND A COPY OF THE MOST RECENT

28  YEAR-END FINANCIAL INFORMATION AND FREQUENTLY ASKED QUESTIONS

29  AND ANSWERS DOCUMENT IF SO REQUESTED IN WRITING. ANY PURPORTED

30  WAIVER OF THESE VOIDABILITY RIGHTS SHALL BE OF NO EFFECT.

31  BUYER MAY EXTEND THE TIME FOR CLOSING FOR A PERIOD OF NOT MORE


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 1  THAN 3 DAYS, EXCLUDING SATURDAYS, SUNDAYS, AND LEGAL HOLIDAYS,

 2  AFTER THE BUYER RECEIVES THE DECLARATION, ARTICLES OF

 3  INCORPORATION, BYLAWS, AND RULES OF THE ASSOCIATION, AND A

 4  COPY OF THE MOST RECENT YEAR-END FINANCIAL INFORMATION AND

 5  FREQUENTLY ASKED QUESTIONS AND ANSWERS DOCUMENT IF REQUESTED

 6  IN WRITING. BUYER'S RIGHT TO VOID THIS AGREEMENT SHALL

 7  TERMINATE AT CLOSING.

 8  

 9  A contract that does not conform to the requirements of this

10  paragraph is voidable at the option of the purchaser prior to

11  closing.

12         Section 7.  Section 720.401, Florida Statutes, is

13  created to read:

14         720.401  Preservation of residential communities;

15  revival of declaration of covenants.--

16         (1)  Consistent with required and optional elements of

17  local comprehensive plans and other applicable provisions of

18  the Local Government Comprehensive Planning and Land

19  Development Regulation Act, homeowners are encouraged to

20  preserve existing residential communities, promote available

21  and affordable housing, protect structural and aesthetic

22  elements of their residential community, and, as applicable,

23  maintain roads and streets, easements, water and sewer

24  systems, utilities, drainage improvements, conservation and

25  open areas, recreational amenities, and other infrastructure

26  and common areas that serve and support the residential

27  community by the revival of a previous declaration of

28  covenants and other governing documents that may have ceased

29  to govern some or all parcels in the community.

30         (2)  In order to preserve a residential community and

31  the associated infrastructure and common areas for the


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 1  purposes described in this section, the parcel owners in a

 2  community that was previously subject to a declaration of

 3  covenants that has ceased to govern one or more parcels in the

 4  community may revive the declaration and the homeowners'

 5  association for the community upon approval by the parcel

 6  owners to be governed thereby as provided in this act, and

 7  upon approval of the declaration and the other governing

 8  documents for the association by the Department of Community

 9  Affairs in a manner consistent with this act.

10         Section 8.  Section 720.402, Florida Statutes, is

11  created to read:

12         720.402  Eligible residential communities; requirements

13  for revival of declaration.--Parcel owners in a community are

14  eligible to seek approval from the Department of Community

15  Affairs to revive a declaration of covenants under this act if

16  all of the following requirements are met:

17         (1)  All parcels to be governed by the revived

18  declaration must have been once governed by a previous

19  declaration that has ceased to govern some or all of the

20  parcels in the community;

21         (2)  The revived declaration must be approved in the

22  manner provided in s. 720.403(6); and

23         (3)  The revived declaration may not contain covenants

24  that are more restrictive on the parcel owners than the

25  covenants contained in the previous declaration, except that

26  the declaration may:

27         (a)  Have an effective term of longer duration than the

28  term of the previous declaration;

29         (b)  Omit restrictions contained in the previous

30  declaration;

31  


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 1         (c)  Govern fewer than all of the parcels governed by

 2  the previous declaration;

 3         (d)  Provide for amendments to the declaration and

 4  other governing documents; and

 5         (e)  Contain provisions required by this chapter for

 6  new declarations that were not contained in the previous

 7  declaration.

 8         Section 9.  Section 720.403, Florida Statutes, is

 9  created to read:

10         720.403  Organizing committee; parcel owner approval.--

11         (1)  The proposal to revive a declaration of covenants

12  and a homeowners' association for a community under the terms

13  of this act shall be initiated by an organizing committee

14  consisting of not less than three parcel owners located in the

15  community that is proposed to be governed by the revived

16  declaration. The name, address, and telephone number of each

17  member of the organizing committee must be included in any

18  notice or other document provided by the committee to parcel

19  owners to be affected by the proposed revived declaration.

20         (2)  The organizing committee shall prepare or cause to

21  be prepared the complete text of the proposed revised

22  declaration of covenants to be submitted to the parcel owners

23  for approval. The proposed revived documents must identify

24  each parcel that is to be subject to the governing documents

25  by its legal description, and by the name of the parcel owner

26  or the person in whose name the parcel is assessed on the last

27  completed tax assessment roll of the county at the time when

28  the proposed revived declaration is submitted for approval by

29  the parcel owners.

30         (3)  The organizing committee shall prepare the full

31  text of the proposed articles of incorporation and bylaws of


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 1  the revived homeowners' association to be submitted to the

 2  parcel owners for approval, unless the association is then an

 3  existing corporation, in which case the organizing committee

 4  shall prepare the existing articles of incorporation and

 5  bylaws to be submitted to the parcel owners.

 6         (4)  The proposed revived declaration and other

 7  governing documents for the community shall:

 8         (a)  Provide that the voting interest of each parcel

 9  owner shall be the same as the voting interest of the parcel

10  owner under the previous governing documents;

11         (b)  Provide that the proportional-assessment

12  obligations of each parcel owner shall be the same as

13  proportional-assessment obligations of the parcel owner under

14  the previous governing documents;

15         (c)  Contain the same respective amendment provisions

16  as the previous governing documents or, if there were no

17  amendment provisions in the previous governing document,

18  amendment provisions that require approval of not less than

19  two-thirds of the affected parcel owners;

20         (d)  Contain no covenants that are more restrictive on

21  the affected parcel owners than the covenants contained in the

22  previous governing documents, except as permitted under s.

23  720.402(3); and

24         (e)  Comply with the other requirements for a

25  declaration of covenants and other governing documents as

26  specified in this chapter.

27         (5)  A copy of the complete text of the proposed

28  revised declaration of covenants, the proposed new or existing

29  articles of incorporation and bylaws of the homeowners'

30  association, and a graphic depiction of the property to be

31  governed by the revived declaration shall be presented to all


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 1  of the affected parcel owners by mail or hand delivery not

 2  less than 14 days before the time that the consent of the

 3  affected parcel owners to the proposed governing documents is

 4  sought by the organizing committee.

 5         (6)  A majority of the affected parcel owners must

 6  agree in writing to the revived declaration of covenants and

 7  governing documents of the homeowners' association or approve

 8  the revived declaration and governing documents by a vote at a

 9  meeting of the affected parcel owners noticed and conducted in

10  the manner prescribed by s. 720.306. Proof of notice of the

11  meeting to all affected owners of the meeting and the minutes

12  of the meeting recording the votes of the property owners

13  shall be certified by a court reporter or an attorney licensed

14  to practice in the state.

15         Section 10.  Section 720.404, Florida Statutes, is

16  created to read:

17         720.404  Department of Community Affairs; submission;

18  review and determination.--

19         (1)  No later than 60 days after the date the proposed

20  revived declaration and other governing documents are approved

21  by the affected parcel owners, the organizing committee or its

22  designee must submit the proposed revived governing documents

23  and supporting materials to the Department of Community

24  Affairs to review and determine whether to approve or

25  disapprove of the proposal to preserve the residential

26  community. The submission to the department must include:

27         (a)  The full text of the proposed revived declaration

28  of covenants and articles of incorporation and bylaws of the

29  homeowners' association;

30  

31  


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 1         (b)  A verified copy of the previous declaration of

 2  covenants and other previous governing documents for the

 3  community, including any amendments thereto;

 4         (c)  The legal description of each parcel to be subject

 5  to the revived declaration and other governing documents and a

 6  plat or other graphic depiction of the affected properties in

 7  the community;

 8         (d)  A verified copy of the written consents of the

 9  requisite number of the affected parcel owners approving the

10  revived declaration and other governing documents or, if

11  approval was obtained by a vote at a meeting of affected

12  parcel owners, verified copies of the notice of the meeting,

13  attendance, and voting results;

14         (e)  An affidavit by a current or former officer of the

15  association or by a member of the organizing committee

16  verifying that the requirements for the revived declaration

17  set forth in s. 720.402 have been satisfied; and

18         (f)  Such other documentation that the organizing

19  committee believes is supportive of the policy of preserving

20  the residential community and operating, managing, and

21  maintaining the infrastructure, aesthetic character, and

22  common areas serving the residential community.

23         (2)  No later than 60 days after receiving the

24  submission, the department must determine whether the proposed

25  revived declaration of covenants and other governing documents

26  comply with the requirements of this act.

27         (a)  If the department determines that the proposed

28  revived declaration and other governing documents comply with

29  the act and have been approved by the parcel owners as

30  required by this act, the department shall notify the

31  organizing committee in writing of its approval.


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 1         (b)  If the department determines that the proposed

 2  revived declaration and other governing documents do not

 3  comply with this act or have not been approved as required by

 4  this act, the department shall notify the organizing committee

 5  in writing that it does not approve the governing documents

 6  and shall state the reasons for the disapproval.

 7         Section 11.  Section 720.405, Florida Statutes, is

 8  created to read:

 9         720.405  Recording; notice of recording; applicability

10  and effective date.--

11         (1)  No later than 30 days after receiving approval

12  from the department, the organizing committee shall file the

13  articles of incorporation of the association with the Division

14  of Corporations of the Department of State if the articles

15  have not been previously filed with the division.

16         (2)  No later than 30 days after receiving approval

17  from the division, the president and secretary of the

18  association shall execute the revived declaration and other

19  governing documents approved by the department in the name of

20  the association and have the documents recorded with the clerk

21  of the circuit court in the county where the affected parcels

22  are located.

23         (3)  The recorded documents shall include the full text

24  of the approved declaration of covenants, the articles of

25  incorporation and bylaws of the homeowners' association, the

26  letter of approval by the department, and the legal

27  description of each affected parcel of property. For purposes

28  of chapter 712, the association is deemed to be and shall be

29  indexed as the grantee in a title transaction and the parcel

30  owners named in the revived declaration are deemed to be and

31  shall be indexed as the grantors in the title transaction.


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 1         (4)  Immediately after recording the documents, a

 2  complete copy of all of the approved recorded documents must

 3  be mailed or hand delivered to the owner of each affected

 4  parcel. The revived declaration and other governing documents

 5  shall be effective upon recordation in the public records with

 6  respect to each affected parcel subject thereto, regardless of

 7  whether the particular parcel owner approved the revived

 8  declaration. Upon recordation, the revived declaration shall

 9  replace and supersede the previous declaration with respect to

10  all affected parcels then governed by the previous declaration

11  and shall have the same record priority as the superseded

12  previous declaration.  With respect to any affected parcels

13  that had ceased to be governed by the previous declaration as

14  of the recording date, the revived declaration may not have

15  retroactive effect with respect to the parcel and shall take

16  priority with respect to the parcel as of the recording date.

17         (5)  With respect to any parcel that has ceased to be

18  governed by a previous declaration of covenants as of the

19  effective date of this act, the parcel owner may commence an

20  action within one year after the effective date of this act

21  for a judicial determination that the previous declaration did

22  not govern that parcel as of the effective date of this act

23  and that any revival of such declaration as to that parcel

24  would unconstitutionally deprive the parcel owner of rights or

25  property. A revived declaration that is implemented pursuant

26  to this act shall not apply to or affect the rights of the

27  respective parcel owner recognized by any court order or

28  judgment in any such action commenced within one year after

29  the effective date of this act, and any such rights so

30  recognized may not be subsequently altered by a revived

31  


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 1  declaration implemented under this act without the consent of

 2  the affected property owner.

 3         Section 12.  Section 720.301, Florida Statutes, is

 4  amended to read:

 5         720.301  Definitions.--As used in this chapter ss.

 6  720.301-720.312, the term:

 7         (1)  "Assessment" or "amenity fee" means a sum or sums

 8  of money payable to the association, to the developer or other

 9  owner of common areas, or to recreational facilities and other

10  properties serving the parcels by the owners of one or more

11  parcels as authorized in the governing documents, which if not

12  paid by the owner of a parcel, can result in a lien against

13  the parcel.

14         (2)  "Common area" means all real property within a

15  community which is owned or leased by an association or

16  dedicated for use or maintenance by the association or its

17  members, including, regardless of whether title has been

18  conveyed to the association:

19         (a)  Real property the use of which is dedicated to the

20  association or its members by a recorded plat; or

21         (b)  Real property committed by a declaration of

22  covenants to be leased or conveyed to the association.

23         (3)  "Community" means the real property that is or

24  will be subject to a declaration of covenants which is

25  recorded in the county where the property is located.  The

26  term "community" includes all real property, including

27  undeveloped phases, that is or was the subject of a

28  development-of-regional-impact development order, together

29  with any approved modification thereto.

30         (4)  "Declaration of covenants," or "declaration,"

31  means a recorded written instrument in the nature of covenants


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 1  running with the land which subjects the land comprising the

 2  community to the jurisdiction and control of an association or

 3  associations in which the owners of the parcels, or their

 4  association representatives, must be members.

 5         (5)  "Department" means the Department of Business and

 6  Professional Regulation.

 7         (6)(5)  "Developer" means a person or entity that:

 8         (a)  Creates the community served by the association;

 9  or

10         (b)  Succeeds to the rights and liabilities of the

11  person or entity that created the community served by the

12  association, provided that such is evidenced in writing.

13         (7)  "Division" means the Division of Florida Land

14  Sales, Condominiums, and Mobile Homes in the Department of

15  Business and Professional Regulation.

16         (8)(6)  "Governing documents" means:

17         (a)  The recorded declaration of covenants for a

18  community, and all duly adopted and recorded amendments,

19  supplements, and recorded exhibits thereto; and

20         (b)  The articles of incorporation and bylaws of the

21  homeowners' association, and any duly adopted amendments

22  thereto.

23         (9)(7)  "Homeowners' association" or "association"

24  means a Florida corporation responsible for the operation of a

25  community or a mobile home subdivision in which the voting

26  membership is made up of parcel owners or their agents, or a

27  combination thereof, and in which membership is a mandatory

28  condition of parcel ownership, and which is authorized to

29  impose assessments that, if unpaid, may become a lien on the

30  parcel.  The term "homeowners' association" does not include a

31  


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 1  community development district or other similar special taxing

 2  district created pursuant to statute.

 3         (10)(8)  "Member" means a member of an association, and

 4  may include, but is not limited to, a parcel owner or an

 5  association representing parcel owners or a combination

 6  thereof, and includes any person or entity obligated by the

 7  governing documents to pay an assessment or amenity fee.

 8         (11)(9)  "Parcel" means a platted or unplatted lot,

 9  tract, unit, or other subdivision of real property within a

10  community, as described in the declaration:

11         (a)  Which is capable of separate conveyance; and

12         (b)  Of which the parcel owner, or an association in

13  which the parcel owner must be a member, is obligated:

14         1.  By the governing documents to be a member of an

15  association that serves the community; and

16         2.  To pay to the homeowners' association assessments

17  that, if not paid, may result in a lien.

18         (12)(10)  "Parcel owner" means the record owner of

19  legal title to a parcel.

20         (13)(11)  "Voting interest" means the voting rights

21  distributed to the members of the homeowners' association,

22  pursuant to the governing documents.

23         Section 13.  Subsections (1), (2), (3), and (4) of

24  section 720.302, are amended to read:

25         720.302  Purposes, scope, and application.--

26         (1)  The purposes of this chapter ss. 720.301-720.312

27  are to give statutory recognition to corporations not for

28  profit that operate residential communities in this state, to

29  provide procedures for operating homeowners' associations, and

30  to protect the rights of association members without unduly

31  


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 1  impairing the ability of such associations to perform their

 2  functions.

 3         (2)  The Legislature recognizes that it is not in the

 4  best interest of homeowners' associations or the individual

 5  association members thereof to create or impose a bureau or

 6  other agency of state government to regulate the affairs of

 7  homeowners' associations. However, in accordance with s.

 8  720.311, the Legislature finds that homeowners' associations

 9  and their individual members will benefit from an expedited

10  alternative process for resolution of election and recall

11  disputes and presuit mediation of other disputes involving

12  covenant enforcement and authorizes the department to hear,

13  administer, and determine these disputes as more fully set

14  forth in this chapter. Further, the Legislature recognizes

15  that certain contract rights have been created for the benefit

16  of homeowners' associations and members thereof before the

17  effective date of this act and that ss. 720.301-720.501 ss.

18  720.301-720.312 are not intended to impair such contract

19  rights, including, but not limited to, the rights of the

20  developer to complete the community as initially contemplated.

21         (3)  This chapter does Sections 720.301-720.312 do not

22  apply to:

23         (a)  A community that is composed of property primarily

24  intended for commercial, industrial, or other nonresidential

25  use; or

26         (b)  The commercial or industrial parcels in a

27  community that contains both residential parcels and parcels

28  intended for commercial or industrial use.

29         (4)  This chapter does Sections 720.301-720.312 do not

30  apply to any association that is subject to regulation under

31  


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 1  chapter 718, chapter 719, or chapter 721; or to any

 2  nonmandatory association formed under chapter 723.

 3         Section 14.  Section 720.303, Florida Statutes, is

 4  amended to read:

 5         720.303  Association powers and duties; meetings of

 6  board; official records; budgets; financial reporting;

 7  association funds; recalls.--

 8         (1)  POWERS AND DUTIES.--An association which operates

 9  a community as defined in s. 720.301, must be operated by an

10  association that is a Florida corporation. After October 1,

11  1995, the association must be incorporated and the initial

12  governing documents must be recorded in the official records

13  of the county in which the community is located. An

14  association may operate more than one community. The officers

15  and directors of an association have a fiduciary relationship

16  to the members who are served by the association. The powers

17  and duties of an association include those set forth in this

18  chapter and, except as expressly limited or restricted in this

19  chapter, those set forth in the governing documents. After

20  control of the association is obtained by members unit owners

21  other than the developer, the association may institute,

22  maintain, settle, or appeal actions or hearings in its name on

23  behalf of all members concerning matters of common interest to

24  the members, including, but not limited to, the common areas;

25  roof or structural components of a building, or other

26  improvements for which the association is responsible;

27  mechanical, electrical, or plumbing elements serving an

28  improvement or building for which the association is

29  responsible; representations of the developer pertaining to

30  any existing or proposed commonly used facility; and

31  protesting ad valorem taxes on commonly used facilities. The


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 1  association may defend actions in eminent domain or bring

 2  inverse condemnation actions. Before commencing litigation

 3  against any party in the name of the association involving

 4  amounts in controversy in excess of $100,000, the association

 5  must obtain the affirmative approval of a majority of the

 6  voting interests at a meeting of the membership at which a

 7  quorum has been attained. This subsection does not limit any

 8  statutory or common-law right of any individual member or

 9  class of members to bring any action without participation by

10  the association. A member does not have authority to act for

11  the association by virtue of being a member. An association

12  may have more than one class of members and may issue

13  membership certificates. An association of 15 or fewer parcel

14  owners may enforce only the requirements of those deed

15  restrictions established prior to the purchase of each parcel

16  upon an affected parcel owner or owners.

17         (2)  BOARD MEETINGS.--

18         (a)  A meeting of the board of directors of an

19  association occurs whenever a quorum of the board gathers to

20  conduct association business.  All meetings of the board must

21  be open to all members except for meetings between the board

22  and its attorney with respect to proposed or pending

23  litigation where the contents of the discussion would

24  otherwise be governed by the attorney-client privilege.

25         (b)  Members have the right to attend all meetings of

26  the board and to speak on any matter placed on the agenda by

27  petition of the voting interests for at least 3 minutes. The

28  association may adopt written reasonable rules expanding the

29  right of members to speak and governing the frequency,

30  duration, and other manner of member statements, which rules

31  must be consistent with this paragraph and may include a


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 1  sign-up sheet for members wishing to speak. Notwithstanding

 2  any other law, the requirement that board meetings and

 3  committee meetings be open to the members is inapplicable to

 4  meetings between the board or a committee and the

 5  association's attorney, with respect to meetings of the board

 6  held for the purpose of discussing personnel matters.

 7         (c)  The bylaws shall provide for giving notice to

 8  parcel owners and members of all board meetings and, if they

 9  do not do so, shall be deemed to provide the following:

10         1.  Notices of all board meetings must be posted in a

11  conspicuous place in the community at least 48 hours in

12  advance of a meeting, except in an emergency.  In the

13  alternative, if notice is not posted in a conspicuous place in

14  the community, notice of each board meeting must be mailed or

15  delivered to each member at least 7 days before the meeting,

16  except in an emergency. Notwithstanding this general notice

17  requirement, for communities with more than 100 members, the

18  bylaws may provide for a reasonable alternative to posting or

19  mailing of notice for each board meeting, including

20  publication of notice, provision of a schedule of board

21  meetings, or the conspicuous posting and repeated broadcasting

22  of the notice on a closed-circuit cable television system

23  serving the homeowners' association. However, if broadcast

24  notice is used in lieu of a notice posted physically in the

25  community, the notice must be broadcast at least four times

26  every broadcast hour of each day that a posted notice is

27  otherwise required. When broadcast notice is provided, the

28  notice and agenda must be broadcast in a manner and for a

29  sufficient continuous length of time so as to allow an average

30  reader to observe the notice and read and comprehend the

31  entire content of the notice and the agenda. The bylaws or


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 1  amended bylaws may provide for giving notice by electronic

 2  transmission in a manner authorized by law for meetings of the

 3  board of directors, committee meetings requiring notice under

 4  this section, and annual and special meetings of the members;

 5  however, a member must consent in writing to receiving notice

 6  by electronic transmission.

 7         2.  An assessment may not be levied at a board meeting

 8  unless the notice of the meeting includes a statement that

 9  assessments will be considered and the nature of the

10  assessments. Written notice of any meeting at which special

11  assessments will be considered or at which amendments to rules

12  regarding parcel use will be considered must be mailed,

13  delivered, or electronically transmitted to the members and

14  parcel owners and posted conspicuously on the property or

15  broadcast on closed-circuit cable television not less than 14

16  days before the meeting.

17         3.  Directors may not vote by proxy or by secret ballot

18  at board meetings, except that secret ballots may be used in

19  the election of officers.  This subsection also applies to the

20  meetings of any committee or other similar body, when a final

21  decision will be made regarding the expenditure of association

22  funds, and to any body vested with the power to approve or

23  disapprove architectural decisions with respect to a specific

24  parcel of residential property owned by a member of the

25  community.

26         (d)  If 20 percent of the total voting interests

27  petition the board to address an item of business, the board

28  shall at its next regular board meeting or at a special

29  meeting of the board, but not later than 60 days after the

30  receipt of the petition, take the petitioned item up on an

31  agenda. The board shall give all members notice of the meeting


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 1  at which the petitioned item shall be addressed in accordance

 2  with the 14-day notice requirement pursuant to subparagraph 2.

 3  Each member shall have the right to speak for at least 3

 4  minutes on each matter placed on the agenda by petition,

 5  provided that the member signs the sign-up sheet, if one is

 6  provided, or submits a written request to speak prior to the

 7  meeting. Other than addressing the petitioned item at the

 8  meeting, the board is not obligated to take any other action

 9  requested by the petition.

10         (3)  MINUTES.--Minutes of all meetings of the members

11  of an association and of the board of directors of an

12  association must be maintained in written form or in another

13  form that can be converted into written form within a

14  reasonable time.  A vote or abstention from voting on each

15  matter voted upon for each director present at a board meeting

16  must be recorded in the minutes.

17         (4)  OFFICIAL RECORDS.--The association shall maintain

18  each of the following items, when applicable, which constitute

19  the official records of the association:

20         (a)  Copies of any plans, specifications, permits, and

21  warranties related to improvements constructed on the common

22  areas or other property that the association is obligated to

23  maintain, repair, or replace.

24         (b)  A copy of the bylaws of the association and of

25  each amendment to the bylaws.

26         (c)  A copy of the articles of incorporation of the

27  association and of each amendment thereto.

28         (d)  A copy of the declaration of covenants and a copy

29  of each amendment thereto.

30         (e)  A copy of the current rules of the homeowners'

31  association.


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 1         (f)  The minutes of all meetings of the board of

 2  directors and of the members, which minutes must be retained

 3  for at least 7 years.

 4         (g)  A current roster of all members and their mailing

 5  addresses and parcel identifications. The association shall

 6  also maintain the electronic mailing addresses and the numbers

 7  designated by members for receiving notice sent by electronic

 8  transmission of those members consenting to receive notice by

 9  electronic transmission. The electronic mailing addresses and

10  numbers provided by unit owners to receive notice by

11  electronic transmission shall be removed from association

12  records when consent to receive notice by electronic

13  transmission is revoked. However, the association is not

14  liable for an erroneous disclosure of the electronic mail

15  address or the number for receiving electronic transmission of

16  notices.

17         (h)  All of the association's insurance policies or a

18  copy thereof, which policies must be retained for at least 7

19  years.

20         (i)  A current copy of all contracts to which the

21  association is a party, including, without limitation, any

22  management agreement, lease, or other contract under which the

23  association has any obligation or responsibility.  Bids

24  received by the association for work to be performed must also

25  be considered official records and must be kept for a period

26  of 1 year.

27         (j)  The financial and accounting records of the

28  association, kept according to good accounting practices.  All

29  financial and accounting records must be maintained for a

30  period of at least 7 years.  The financial and accounting

31  records must include:


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 1         1.  Accurate, itemized, and detailed records of all

 2  receipts and expenditures.

 3         2.  A current account and a periodic statement of the

 4  account for each member, designating the name and current

 5  address of each member who is obligated to pay assessments,

 6  the due date and amount of each assessment or other charge

 7  against the member, the date and amount of each payment on the

 8  account, and the balance due.

 9         3.  All tax returns, financial statements, and

10  financial reports of the association.

11         4.  Any other records that identify, measure, record,

12  or communicate financial information.

13         (k)  A copy of the disclosure summary described in s.

14  720.401(2).

15         (l)  All other written records of the association not

16  specifically included in the foregoing which are related to

17  the operation of the association.

18         (5)  INSPECTION AND COPYING OF RECORDS.--The official

19  records shall be maintained within the state and must be open

20  to inspection and available for photocopying by members or

21  their authorized agents at reasonable times and places within

22  10 business days after receipt of a written request for

23  access. This subsection may be complied with by having a copy

24  of the official records available for inspection or copying in

25  the community. If the association has a photocopy machine

26  available where the records are maintained, it must provide

27  parcel owners with copies on request during the inspection if

28  the entire request is limited to no more than 25 pages.

29         (a)  The failure of an association to provide access to

30  the records within 10 business days after receipt of a written

31  


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 1  request creates a rebuttable presumption that the association

 2  willfully failed to comply with this subsection.

 3         (b)  A member who is denied access to official records

 4  is entitled to the actual damages or minimum damages for the

 5  association's willful failure to comply with this subsection.

 6  The minimum damages are to be $50 per calendar day up to 10

 7  days, the calculation to begin on the 11th business day after

 8  receipt of the written request.

 9         (c)  The association may adopt reasonable written rules

10  governing the frequency, time, location, notice, records to be

11  inspected, and manner of inspections, but may not impose a

12  requirement that a parcel owner demonstrate any proper purpose

13  for the inspection, state any reason for the inspection, or

14  limit a parcel owner's right to inspect records to less than

15  one 8-hour business day per month. The association and may

16  impose fees to cover the costs of providing copies of the

17  official records, including, without limitation, the costs of

18  copying. The association may charge up to 50 cents per page

19  for copies made on the association's photocopier. If the

20  association does not have a photocopy machine available where

21  the records are kept, or if the records requested to be copied

22  exceed 25 pages in length, the association may have copies

23  made by an outside vendor and may charge the actual cost of

24  copying. The association shall maintain an adequate number of

25  copies of the recorded governing documents, to ensure their

26  availability to members and prospective members, and may

27  charge only its actual costs for reproducing and furnishing

28  these documents to those persons who are entitled to receive

29  them. Notwithstanding the provisions of this paragraph, the

30  following records shall not be accessible to members or parcel

31  owners:


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 1         1.  Any record protected by the lawyer-client privilege

 2  as described in s. 90.502 and any record protected by the

 3  work-product privilege, including, but not limited to, any

 4  record prepared by an association attorney or prepared at the

 5  attorney's express direction which reflects a mental

 6  impression, conclusion, litigation strategy, or legal theory

 7  of the attorney or the association and was prepared

 8  exclusively for civil or criminal litigation or for

 9  adversarial administrative proceedings or which was prepared

10  in anticipation of imminent civil or criminal litigation or

11  imminent adversarial administrative proceedings until the

12  conclusion of the litigation or adversarial administrative

13  proceedings.

14         2.  Information obtained by an association in

15  connection with the approval of the lease, sale, or other

16  transfer of a parcel.

17         3.  Disciplinary, health, insurance, and personnel

18  records of the association's employees.

19         4.  Medical records of parcel owners or community

20  residents.

21         (6)  BUDGETS.--The association shall prepare an annual

22  budget. The budget must reflect the estimated revenues and

23  expenses for that year and the estimated surplus or deficit as

24  of the end of the current year.  The budget must set out

25  separately all fees or charges for recreational amenities,

26  whether owned by the association, the developer, or another

27  person.  The association shall provide each member with a copy

28  of the annual budget or a written notice that a copy of the

29  budget is available upon request at no charge to the member.

30  The copy must be provided to the member within the time limits

31  set forth in subsection (5).


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 1         (7)  FINANCIAL REPORTING.--The association shall

 2  prepare an annual financial report within 60 days after the

 3  close of the fiscal year. The association shall, within the

 4  time limits set forth in subsection (5), provide each member

 5  with a copy of the annual financial report or a written notice

 6  that a copy of the financial report is available upon request

 7  at no charge to the member. Financial reports shall be

 8  prepared as follows The financial report must consist of

 9  either:

10         (a)  An association that meets the criteria of this

11  paragraph shall prepare or cause to be prepared a complete set

12  of financial statements in accordance with generally accepted

13  accounting principles. The financial statements shall be based

14  upon the association's total annual revenues, as follows:

15         1.  An association with total annual revenues of

16  $100,000 or more, but less than $200,000, shall prepare

17  compiled financial statements.

18         2.  An association with total annual revenues of at

19  least $200,000, but less than $400,000, shall prepare reviewed

20  financial statements.

21         3.  An association with total annual revenues of

22  $400,000 or more shall prepare audited financial statements.

23  Financial statements presented in conformity with generally

24  accepted accounting principles; or

25         (b)  A financial report of actual receipts and

26  expenditures, cash basis, which report must show:

27         1.  An association with total annual revenues of less

28  than $100,000 shall prepare a report of cash receipts and

29  expenditures. The amount of receipts and expenditures by

30  classification; and

31  


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 1         2.  An association in a community of fewer than 50

 2  parcels, regardless of the association's annual revenues, may

 3  prepare a report of cash receipts and expenditures in lieu of

 4  financial statements required by paragraph (a) unless the

 5  governing documents provide otherwise. The beginning and

 6  ending cash balances of the association.

 7         3.  A report of cash receipts and disbursement must

 8  disclose the amount of receipts by accounts and receipt

 9  classifications and the amount of expenses by accounts and

10  expense classifications, including, but not limited to, the

11  following, as applicable: costs for security, professional,

12  and management fees and expenses; taxes; costs for recreation

13  facilities; expenses for refuse collection and utility

14  services; expenses for lawn care; costs for building

15  maintenance and repair; insurance costs; administration and

16  salary expenses; and reserves if maintained by the

17  association.

18         (c)  If 20 percent of the parcel owners petition the

19  board for a level of financial reporting higher than that

20  required by this section, the association shall duly notice

21  and hold a meeting of members within 30 days of receipt of the

22  petition for the purpose of voting on raising the level of

23  reporting for that fiscal year. Upon approval of a majority of

24  the total voting interests of the parcel owners, the

25  association shall prepare or cause to be prepared, shall amend

26  the budget or adopt a special assessment to pay for the

27  financial report regardless of any provision to the contrary

28  in the governing documents, and shall provide within 90 days

29  of the meeting or the end of the fiscal year, whichever occurs

30  later:

31  


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    CS for CS for CS for SB 1184                   First Engrossed



 1         1.  Compiled, reviewed, or audited financial

 2  statements, if the association is otherwise required to

 3  prepare a report of cash receipts and expenditures;

 4         2.  Reviewed or audited financial statements, if the

 5  association is otherwise required to prepare compiled

 6  financial statements; or

 7         3.  Audited financial statements if the association is

 8  otherwise required to prepare reviewed financial statements.

 9         (d)  If approved by a majority of the voting interests

10  present at a properly called meeting of the association, an

11  association may prepare or cause to be prepared:

12         1.  A report of cash receipts and expenditures in lieu

13  of a compiled, reviewed, or audited financial statement;

14         2.  A report of cash receipts and expenditures or a

15  compiled financial statement in lieu of a reviewed or audited

16  financial statement; or

17         3.  A report of cash receipts and expenditures, a

18  compiled financial statement, or a reviewed financial

19  statement in lieu of an audited financial statement.

20         (8)  ASSOCIATION FUNDS; COMMINGLING.--

21         (a)  All association funds held by a developer shall be

22  maintained separately in the association's name. Reserve and

23  operating funds of the association shall not be commingled

24  prior to turnover except the association may jointly invest

25  reserve funds; however, such jointly invested funds must be

26  accounted for separately.

27         (b)  No developer in control of a homeowners'

28  association shall commingle any association funds with his or

29  her funds or with the funds of any other homeowners'

30  association or community association.

31  


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 1         (c)  Association funds may not be used by a developer

 2  to defend a civil or criminal action, administrative

 3  proceeding, or arbitration proceeding that has been filed

 4  against the developer or directors appointed to the

 5  association board by the developer, even when the subject of

 6  the action or proceeding concerns the operation of the

 7  developer-controlled association.

 8         (9)  APPLICABILITY.--Sections 617.1601-617.1604 do not

 9  apply to a homeowners' association in which the members have

10  the inspection and copying rights set forth in this section.

11         (10)  RECALL OF DIRECTORS.--

12         (a)1.  Regardless of any provision to the contrary

13  contained in the governing documents, subject to the

14  provisions of s. 720.307 regarding transition of association

15  control, any member of the board or directors may be recalled

16  and removed from office with or without cause by a majority of

17  the total voting interests.

18         2.  When the governing documents, including the

19  declaration, articles of incorporation, or bylaws, provide

20  that only a specific class of members is entitled to elect a

21  board director or directors, only that class of members may

22  vote to recall those board directors so elected.

23         (b)1.  Board directors may be recalled by an agreement

24  in writing or by written ballot without a membership meeting.

25  The agreement in writing or the written ballots, or a copy

26  thereof, shall be served on the association by certified mail

27  or by personal service in the manner authorized by chapter 48

28  and the Florida Rules of Civil Procedure.

29         2.  The board shall duly notice and hold a meeting of

30  the board within 5 full business days after receipt of the

31  agreement in writing or written ballots. At the meeting, the


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    CS for CS for CS for SB 1184                   First Engrossed



 1  board shall either certify the written ballots or written

 2  agreement to recall a director or directors of the board, in

 3  which case such director or directors shall be recalled

 4  effective immediately and shall turn over to the board within

 5  5 full business days any and all records and property of the

 6  association in their possession, or proceed as described in

 7  paragraph (d).

 8         3.  When it is determined by the department pursuant to

 9  binding arbitration proceedings that an initial recall effort

10  was defective, written recall agreements or written ballots

11  used in the first recall effort and not found to be defective

12  may be reused in one subsequent recall effort. However, in no

13  event is a written agreement or written ballot valid for more

14  than 120 days after it has been signed by the member.

15         4.  Any rescission or revocation of a member's written

16  recall ballot or agreement must be in writing and, in order to

17  be effective, must be delivered to the association before the

18  association is served with the written recall agreements or

19  ballots.

20         5.  The agreement in writing or ballot shall list at

21  least as many possible replacement directors as there are

22  directors subject to the recall, when at least a majority of

23  the board is sought to be recalled; the person executing the

24  recall instrument may vote for as many replacement candidates

25  as there are directors subject to the recall.

26         (c)1.  If the declaration, articles of incorporation,

27  or bylaws specifically provide, the members may also recall

28  and remove a board director or directors by a vote taken at a

29  meeting. If so provided in the governing documents, a special

30  meeting of the members to recall a director or directors of

31  the board of administration may be called by 10 percent of the


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    CS for CS for CS for SB 1184                   First Engrossed



 1  voting interests giving notice of the meeting as required for

 2  a meeting of members, and the notice shall state the purpose

 3  of the meeting. Electronic transmission may not be used as a

 4  method of giving notice of a meeting called in whole or in

 5  part for this purpose.

 6         2.  The board shall duly notice and hold a board

 7  meeting within 5 full business days after the adjournment of

 8  the member meeting to recall one or more directors. At the

 9  meeting, the board shall certify the recall, in which case

10  such member or members shall be recalled effective immediately

11  and shall turn over to the board within 5 full business days

12  any and all records and property of the association in their

13  possession, or shall proceed as set forth in subparagraph (d).

14         (d)  If the board determines not to certify the written

15  agreement or written ballots to recall a director or directors

16  of the board or does not certify the recall by a vote at a

17  meeting, the board shall, within 5 full business days after

18  the meeting, file with the department a petition for binding

19  arbitration pursuant to the applicable procedures in ss.

20  718.1255 and 718.112(2)(j) and the rules adopted thereunder.

21  For the purposes of this section, the members who voted at the

22  meeting or who executed the agreement in writing shall

23  constitute one party under the petition for arbitration. If

24  the arbitrator certifies the recall as to any director or

25  directors of the board, the recall will be effective upon

26  mailing of the final order of arbitration to the association.

27  The director or directors so recalled shall deliver to the

28  board any and all records of the association in their

29  possession within 5 full business days after the effective

30  date of the recall.

31  


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 1         (e)  If a vacancy occurs on the board as a result of a

 2  recall and less than a majority of the board directors are

 3  removed, the vacancy may be filled by the affirmative vote of

 4  a majority of the remaining directors, notwithstanding any

 5  provision to the contrary contained in this subsection or in

 6  the association documents. If vacancies occur on the board as

 7  a result of a recall and a majority or more of the board

 8  directors are removed, the vacancies shall be filled by

 9  members voting in favor of the recall; if removal is at a

10  meeting, any vacancies shall be filled by the members at the

11  meeting. If the recall occurred by agreement in writing or by

12  written ballot, members may vote for replacement directors in

13  the same instrument in accordance with procedural rules

14  adopted by the division, which rules need not be consistent

15  with this subsection.

16         (f)  If the board fails to duly notice and hold a board

17  meeting within 5 full business days after service of an

18  agreement in writing or within 5 full business days after the

19  adjournment of the member recall meeting, the recall shall be

20  deemed effective and the board directors so recalled shall

21  immediately turn over to the board all records and property of

22  the association.

23         (g)  If a director who is removed fails to relinquish

24  his or her office or turn over records as required under this

25  section, the circuit court in the county where the association

26  maintains its principal office may, upon the petition of the

27  association, summarily order the director to relinquish his or

28  her office and turn over all association records upon

29  application of the association.

30         (h)  The minutes of the board meeting at which the

31  board decides whether to certify the recall are an official


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    CS for CS for CS for SB 1184                   First Engrossed



 1  association record. The minutes must record the date and time

 2  of the meeting, the decision of the board, and the vote count

 3  taken on each board member subject to the recall. In addition,

 4  when the board decides not to certify the recall, as to each

 5  vote rejected, the minutes must identify the parcel number and

 6  the specific reason for each such rejection.

 7         (i)  When the recall of more than one board director is

 8  sought, the written agreement, ballot, or vote at a meeting

 9  shall provide for a separate vote for each board director

10  sought to be recalled.

11         Section 15.  Section 720.304, Florida Statutes, is

12  amended to read:

13         720.304  Right of owners to peaceably assemble; display

14  of flag; SLAPP suits prohibited.--

15         (1)  All common areas and recreational facilities

16  serving any homeowners' association shall be available to

17  parcel owners in the homeowners' association served thereby

18  and their invited guests for the use intended for such common

19  areas and recreational facilities.  The entity or entities

20  responsible for the operation of the common areas and

21  recreational facilities may adopt reasonable rules and

22  regulations pertaining to the use of such common areas and

23  recreational facilities.  No entity or entities shall

24  unreasonably restrict any parcel owner's right to peaceably

25  assemble or right to invite public officers or candidates for

26  public office to appear and speak in common areas and

27  recreational facilities.

28         (2)  Any homeowner may display one portable, removable

29  United States flag or official flag of the State of Florida in

30  a respectful manner, and on Armed Forces Day, Memorial Day,

31  Flag Day, Independence Day, and Veterans Day may display in a


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 1  respectful manner portable, removable official flags, not

 2  larger than 4 1/2 feet by 6 feet, which represents the United

 3  States Army, Navy, Air Force, Marine Corps, or Coast Guard,

 4  regardless of any declaration rules or requirements dealing

 5  with flags or decorations.

 6         (3)  Any owner prevented from exercising rights

 7  guaranteed by subsection (1) or subsection (2) may bring an

 8  action in the appropriate court of the county in which the

 9  alleged infringement occurred, and, upon favorable

10  adjudication, the court shall enjoin the enforcement of any

11  provision contained in any homeowners' association document or

12  rule that operates to deprive the owner of such rights.

13         (4)  It is the intent of the Legislature to protect the

14  right of parcel owners to exercise their rights to instruct

15  their representatives and petition for redress of grievances

16  before the various governmental entities of this state as

17  protected by the First Amendment to the United States

18  Constitution and s. 5, Art. I of the State Constitution. The

19  Legislature recognizes that "Strategic Lawsuits Against Public

20  Participation" or "SLAPP" suits, as they are typically called,

21  have occurred when members are sued by individuals, business

22  entities, or governmental entities arising out of a parcel

23  owner's appearance and presentation before a governmental

24  entity on matters related to the homeowners' association.

25  However, it is the public policy of this state that government

26  entities, business organizations, and individuals not engage

27  in SLAPP suits because such actions are inconsistent with the

28  right of parcel owners to participate in the state's

29  institutions of government. Therefore, the Legislature finds

30  and declares that prohibiting such lawsuits by governmental

31  entities, business entities, and individuals against parcel


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 1  owners who address matters concerning their homeowners'

 2  association will preserve this fundamental state policy,

 3  preserve the constitutional rights of parcel owners, and

 4  assure the continuation of representative government in this

 5  state. It is the intent of the Legislature that such lawsuits

 6  be expeditiously disposed of by the courts.

 7         (a)  As used in this subsection, the term "governmental

 8  entity" means the state, including the executive, legislative,

 9  and judicial branches of government, the independent

10  establishments of the state, counties, municipalities,

11  districts, authorities, boards, or commissions, or any

12  agencies of these branches which are subject to chapter 286.

13         (b)  A governmental entity, business organization, or

14  individual in this state may not file or cause to be filed

15  through its employees or agents any lawsuit, cause of action,

16  claim, cross-claim, or counterclaim against a parcel owner

17  without merit and solely because such parcel owner has

18  exercised the right to instruct his or her representatives or

19  the right to petition for redress of grievances before the

20  various governmental entities of this state, as protected by

21  the First Amendment to the United States Constitution and s.

22  5, Art. I of the State Constitution.

23         (c)  A parcel owner sued by a governmental entity,

24  business organization, or individual in violation of this

25  section has a right to an expeditious resolution of a claim

26  that the suit is in violation of this section. A parcel owner

27  may petition the court for an order dismissing the action or

28  granting final judgment in favor of that parcel owner. The

29  petitioner may file a motion for summary judgment, together

30  with supplemental affidavits, seeking a determination that the

31  governmental entity's, business organization's, or


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 1  individual's lawsuit has been brought in violation of this

 2  section. The governmental entity, business organization, or

 3  individual shall thereafter file its response and any

 4  supplemental affidavits. As soon as practicable, the court

 5  shall set a hearing on the petitioner's motion, which shall be

 6  held at the earliest possible time after the filing of the

 7  governmental entity's, business organization's or individual's

 8  response. The court may award the parcel owner sued by the

 9  governmental entity, business organization, or individual

10  actual damages arising from the governmental entity's,

11  individual's, or business organization's violation of this

12  section. A court may treble the damages awarded to a

13  prevailing parcel owner and shall state the basis for the

14  treble damages award in its judgment. The court shall award

15  the prevailing party reasonable attorney's fees and costs

16  incurred in connection with a claim that an action was filed

17  in violation of this section.

18         (d)  Homeowners' associations may not expend

19  association funds in prosecuting a SLAPP suit against a parcel

20  owner.

21         (5)(a)  Any parcel owner may construct an access ramp

22  if a resident or occupant of the parcel has a medical

23  necessity or disability that requires a ramp for egress and

24  ingress under the following conditions:

25         1.  The ramp must be as unobtrusive as possible, be

26  designed to blend in aesthetically as practicable, and be

27  reasonably sized to fit the intended use.

28         2.  Plans for the ramp must be submitted in advance to

29  the homeowners' association. The association may make

30  reasonable requests to modify the design to achieve

31  


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 1  architectural consistency with surrounding structures and

 2  surfaces.

 3         (b)  The parcel owner must submit to the association an

 4  affidavit from a physician attesting to the medical necessity

 5  or disability of the resident or occupant of the parcel

 6  requiring the access ramp. Certification used for s. 320.0848

 7  shall be sufficient to meet the affidavit requirement.

 8         (6)  Any parcel owner may display a sign of reasonable

 9  size provided by a contractor for security services within 10

10  feet of any entrance to the home.

11         Section 16.  Subsection (2) of section 720.305, Florida

12  Statutes, is amended to read:

13         720.305  Obligations of members; remedies at law or in

14  equity; levy of fines and suspension of use rights; failure to

15  fill sufficient number of vacancies on board of directors to

16  constitute a quorum; appointment of receiver upon petition of

17  any member.--

18         (2)  If the governing documents so provide, an

19  association may suspend, for a reasonable period of time, the

20  rights of a member or a member's tenants, guests, or invitees,

21  or both, to use common areas and facilities and may levy

22  reasonable fines, not to exceed $100 per violation, against

23  any member or any tenant, guest, or invitee. A fine may be

24  levied on the basis of each day of a continuing violation,

25  with a single notice and opportunity for hearing, except that

26  no such fine shall exceed $1,000 in the aggregate unless

27  otherwise provided in the governing documents. A fine shall

28  not become a lien against a parcel. In any action to recover a

29  fine, the prevailing party is entitled to collect its

30  reasonable attorney's fees and costs from the nonprevailing

31  party as determined by the court.


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 1         (a)  A fine or suspension may not be imposed without

 2  notice of at least 14 days to the person sought to be fined or

 3  suspended and an opportunity for a hearing before a committee

 4  of at least three members appointed by the board who are not

 5  officers, directors, or employees of the association, or the

 6  spouse, parent, child, brother, or sister of an officer,

 7  director, or employee.  If the committee, by majority vote,

 8  does not approve a proposed fine or suspension, it may not be

 9  imposed.

10         (b)  The requirements of this subsection do not apply

11  to the imposition of suspensions or fines upon any member

12  because of the failure of the member to pay assessments or

13  other charges when due if such action is authorized by the

14  governing documents.

15         (c)  Suspension of common-area-use rights shall not

16  impair the right of an owner or tenant of a parcel to have

17  vehicular and pedestrian ingress to and egress from the

18  parcel, including, but not limited to, the right to park.

19         Section 17.  Section 720.3055, Florida Statutes, is

20  created to read:

21         720.3055  Contracts for products and services; in

22  writing; bids; exceptions.--

23         (1)  All contracts as further described in this section

24  or any contract that is not to be fully performed within 1

25  year after the making thereof for the purchase, lease, or

26  renting of materials or equipment to be used by the

27  association in accomplishing its purposes under this chapter

28  or the governing documents, and all contracts for the

29  provision of services, shall be in writing. If a contract for

30  the purchase, lease, or renting of materials or equipment, or

31  for the provision of services, requires payment by the


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 1  association that exceeds 10 percent of the total annual budget

 2  of the association, including reserves, the association must

 3  obtain competitive bids for the materials, equipment, or

 4  services. Nothing contained in this section shall be construed

 5  to require the association to accept the lowest bid.

 6         (2)(a)1.  Notwithstanding the foregoing, contracts with

 7  employees of the association, and contracts for attorney,

 8  accountant, architect, community association manager,

 9  engineering, and landscape architect services are not subject

10  to the provisions of this section.

11         2.  A contract executed before October 1, 2004, and any

12  renewal thereof, is not subject to the competitive bid

13  requirements of this section. If a contract was awarded under

14  the competitive bid procedures of this section, any renewal of

15  that contract is not subject to such competitive bid

16  requirements if the contract contains a provision that allows

17  the board to cancel the contract on 30 days' notice.

18  Materials, equipment, or services provided to an association

19  under a local government franchise agreement by a franchise

20  holder are not subject to the competitive bid requirements of

21  this section. A contract with a manager, if made by a

22  competitive bid, may be made for up to 3 years. An association

23  whose declaration or bylaws provide for competitive bidding

24  for services may operate under the provisions of that

25  declaration or bylaws in lieu of this section if those

26  provisions are not less stringent than the requirements of

27  this section.

28         (b)  Nothing contained in this section is intended to

29  limit the ability of an association to obtain needed products

30  and services in an emergency.

31  


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 1         (c)  This section does not apply if the business entity

 2  with which the association desires to enter into a contract is

 3  the only source of supply within the county serving the

 4  association.

 5         (d)  Nothing contained in this section shall excuse a

 6  party contracting to provide maintenance or management

 7  services from compliance with s. 720.309.

 8         Section 18.  Present subsections (5) through (8) of

 9  section 720.306, Florida Statutes, are renumbered as

10  subsections (7) through (10), respectively, present subsection

11  (7) is amended, and new subsections (5) and (6) are added to

12  that section to read:

13         720.306  Meetings of members; voting and election

14  procedures; amendments.--

15         (5)  NOTICE OF MEETINGS.--The bylaws shall provide for

16  giving notice to members of all member meetings, and if they

17  do not do so shall be deemed to provide the following: The

18  association shall give all parcel owners and members actual

19  notice of all membership meetings, which shall be mailed,

20  delivered, or electronically transmitted to the members not

21  less than 14 days prior to the meeting. Evidence of compliance

22  with this 14-day notice shall be made by an affidavit executed

23  by the person providing the notice and filed upon execution

24  among the official records of the association. In addition to

25  mailing, delivering, or electronically transmitting the notice

26  of any meeting, the association may, by reasonable rule, adopt

27  a procedure for conspicuously posting and repeatedly

28  broadcasting the notice and the agenda on a closed-circuit

29  cable television system serving the association. When

30  broadcast notice is provided, the notice and agenda must be

31  broadcast in a manner and for a sufficient continuous length


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 1  of time so as to allow an average reader to observe the notice

 2  and read and comprehend the entire content of the notice and

 3  the agenda.

 4         (6)  RIGHT TO SPEAK.--Members and parcel owners have

 5  the right to attend all membership meetings and to speak at

 6  any meeting with reference to all items opened for discussion

 7  or included on the agenda. Notwithstanding any provision to

 8  the contrary in the governing documents or any rules adopted

 9  by the board or by the membership, a member and a parcel owner

10  have the right to speak for at least 3 minutes on any item,

11  provided that the member or parcel owner submits a written

12  request to speak prior to the meeting. The association may

13  adopt written reasonable rules governing the frequency,

14  duration, and other manner of member and parcel owner

15  statements, which rules must be consistent with this

16  paragraph.

17         (9)(7)  ELECTIONS.--Elections of directors must be

18  conducted in accordance with the procedures set forth in the

19  governing documents of the association.  All members of the

20  association shall be eligible to serve on the board of

21  directors, and a member may nominate himself or herself as a

22  candidate for the board at a meeting where the election is to

23  be held.  Except as otherwise provided in the governing

24  documents, boards of directors must be elected by a plurality

25  of the votes cast by eligible voters. Any election dispute

26  between a member and an association must be submitted to

27  mandatory binding arbitration with the division. Such

28  proceedings shall be conducted in the manner provided by s.

29  718.1255 and the procedural rules adopted by the division.

30         Section 19.  Section 720.311, Florida Statutes, is

31  amended to read:


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 1         720.311  Dispute resolution.--

 2         (1)  The Legislature finds that alternative dispute

 3  resolution has made progress in reducing court dockets and

 4  trials and in offering a more efficient, cost-effective option

 5  to litigation. The filing of any petition for mediation or

 6  arbitration provided for in this section shall toll the

 7  applicable statute of limitations. Any recall dispute filed

 8  with the department pursuant to s. 720.303(10) shall be

 9  conducted by the department in accordance with the provisions

10  of ss. 718.1255 and 718.112(2)(j) and the rules adopted by the

11  division. In addition, the department shall conduct mandatory

12  binding arbitration of election disputes between a member and

13  an association pursuant to s. 718.1255 and rules adopted by

14  the division. Neither election disputes nor recall disputes

15  are eligible for mediation; these disputes shall be arbitrated

16  by the department. At the conclusion of the proceeding, the

17  department shall charge the parties a fee in an amount

18  adequate to cover all costs and expenses incurred by the

19  department in conducting the proceeding. Initially, the

20  petitioner shall remit a filing fee of at least $200 to the

21  department. The fees paid to the department shall become a

22  recoverable cost in the arbitration proceeding and the

23  prevailing party in an arbitration proceeding shall recover

24  its reasonable costs and attorney's fees in an amount found

25  reasonable by the arbitrator. The department shall adopt rules

26  to effectuate the purposes of this section.

27         (2)(a)  Disputes between an association and a parcel

28  owner regarding use of or changes to the parcel or the common

29  areas and other covenant enforcement disputes, disputes

30  regarding amendments to the association documents, disputes

31  regarding meetings of the board and committees appointed by


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 1  the board, membership meetings not including election

 2  meetings, and access to the official records of the

 3  association shall be filed with the department for mandatory

 4  mediation before the dispute is filed in court. Mediation

 5  proceedings must be conducted in accordance with the

 6  applicable Florida Rules of Civil Procedure, and these

 7  proceedings are privileged and confidential to the same extent

 8  as court-ordered mediation. An arbitrator or judge may not

 9  consider any information or evidence arising from the

10  mediation proceeding except in a proceeding to impose

11  sanctions for failure to attend a mediation session. Persons

12  who are not parties to the dispute may not attend the

13  mediation conference without the consent of all parties,

14  except for counsel for the parties and a corporate

15  representative designated by the association. When mediation

16  is attended by a quorum of the board, such mediation is not a

17  board meeting for purposes of notice and participation set

18  forth in s. 720.303. The department shall conduct the

19  proceedings through the use of department mediators or refer

20  the disputes to private mediators who have been duly certified

21  by the department as provided in paragraph (c). The parties

22  shall share the costs of mediation equally, including the fee

23  charged by the mediator, if any, unless the parties agree

24  otherwise. If a department mediator is used, the department

25  may charge such fee as is necessary to pay expenses of the

26  mediation, including, but not limited to, the salary and

27  benefits of the mediator and any travel expenses incurred. The

28  petitioner shall initially file with the department upon

29  filing the disputes, a filing fee of $200, which shall be used

30  to defray the costs of the mediation. At the conclusion of the

31  mediation, the department shall charge to the parties, to be


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 1  shared equally unless otherwise agreed by the parties, such

 2  further fees as are necessary to fully reimburse the

 3  department for all expenses incurred in the mediation.

 4         (b)  If mediation as described in paragraph (a) is not

 5  successful in resolving all issues between the parties, the

 6  parties may file the unresolved dispute in a court of

 7  competent jurisdiction or elect to enter into binding or

 8  nonbinding arbitration pursuant to the procedures set forth in

 9  s. 718.1255 and rules adopted by the division, with the

10  arbitration proceeding to be conducted by a department

11  arbitrator or by a private arbitrator certified by the

12  department. If all parties do not agree to arbitration

13  proceedings following an unsuccessful mediation, any party may

14  file the dispute in court. A final order resulting from

15  nonbinding arbitration is final and enforceable in the courts

16  if a complaint for trial de novo is not filed in a court of

17  competent jurisdiction within 30 days after entry of the

18  order.

19         (c)  The department shall develop a certification and

20  training program for private mediators and private arbitrators

21  which shall emphasize experience and expertise in the area of

22  the operation of community associations. A mediator or

23  arbitrator shall be certified by the department only if he or

24  she has attended at least 20 hours of training in mediation or

25  arbitration, as appropriate, and only if the applicant has

26  mediated or arbitrated at least 10 disputes involving

27  community associations within 5 years prior to the date of the

28  application, or has mediated or arbitrated 10 disputes in any

29  area within 5 years prior to the date of application and has

30  completed 20 hours of training in community association

31  disputes. In order to be certified by the department, any


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 1  mediator must also be certified by the Florida Supreme Court.

 2  The department may conduct the training and certification

 3  program within the department or may contract with an outside

 4  vendor to perform the training or certification. The expenses

 5  of operating the training and certification and training

 6  program shall be paid by the moneys and filing fees generated

 7  by the arbitration of recall and election disputes and by the

 8  mediation of those disputes referred to in this subsection and

 9  by the training fees.

10         (d)  The mediation procedures provided by this

11  subsection may be used by a Florida corporation responsible

12  for the operation of a community in which the voting members

13  are parcel owners or their representatives, in which

14  membership in the corporation is not a mandatory condition of

15  parcel ownership, or which is not authorized to impose an

16  assessment that may become a lien on the parcel.

17         (3)  The department shall develop an education program

18  to assist homeowners, associations, board members, and

19  managers in understanding and increasing awareness of the

20  operation of homeowners' associations pursuant to chapter 720

21  and in understanding the use of alternative dispute resolution

22  techniques in resolving disputes between parcel owners and

23  associations or between owners. Such education program may

24  include the development of pamphlets and other written

25  instructional guides, the holding of classes and meetings by

26  department employees or outside vendors, as the department

27  determines, and the creation and maintenance of a website

28  containing instructional materials. The expenses of operating

29  the education program shall be initially paid by the moneys

30  and filing fees generated by the arbitration of recall and

31  election disputes and by the mediation of those disputes


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 1  referred to in this subsection. At any time after the filing

 2  in a court of competent jurisdiction of a complaint relating

 3  to a dispute under ss. 720.301-720.312, the court may order

 4  that the parties enter mediation or arbitration procedures.

 5         Section 20.  Subsection (13) is added to section

 6  718.110, Florida Statutes, to read:

 7         718.110  Amendment of declaration; correction of error

 8  or omission in declaration by circuit court.--

 9         (13)  Any amendment restricting unit owners' rights

10  relating to the rental of units applies only to unit owners

11  who consent to the amendment and unit owners who purchase

12  their units after the effective date of that amendment.

13         Section 21.  Section 689.26, Florida Statutes, is

14  transferred, renumbered as section 720.601, Florida Statutes,

15  and amended to read:

16         720.601 689.26  Prospective purchasers subject to

17  association membership requirement; disclosure required;

18  covenants; assessments; contract cancellation voidability.--

19         (1)(a)  A prospective parcel owner in a community must

20  be presented a disclosure summary before executing the

21  contract for sale.  The disclosure summary must be in a form

22  substantially similar to the following form:

23  

24                        DISCLOSURE SUMMARY

25                                FOR

26                        (NAME OF COMMUNITY)

27  

28         1.  AS A PURCHASER OF PROPERTY IN THIS COMMUNITY, YOU

29  WILL (WILL) (WILL NOT) BE OBLIGATED TO BE A MEMBER OF A

30  HOMEOWNERS' ASSOCIATION.

31  


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 1         2.  THERE HAVE BEEN OR WILL BE RECORDED RESTRICTIVE

 2  COVENANTS GOVERNING THE USE AND OCCUPANCY OF PROPERTIES IN

 3  THIS COMMUNITY.

 4         3.  YOU WILL (WILL) (WILL NOT) BE OBLIGATED TO PAY

 5  ASSESSMENTS TO THE ASSOCIATION. ASSESSMENTS MAY BE SUBJECT TO

 6  PERIODIC CHANGE. IF APPLICABLE, THE CURRENT AMOUNT IS $______

 7  PER ______. YOU WILL ALSO BE OBLIGATED TO PAY ANY SPECIAL

 8  ASSESSMENTS IMPOSED BY THE ASSOCIATION. SUCH SPECIAL

 9  ASSESSMENTS MAY BE SUBJECT TO CHANGE. IF APPLICABLE, THE

10  CURRENT AMOUNT IS $______ PER ______.

11         4.  YOU MAY (WILL) (WILL NOT) BE OBLIGATED TO PAY

12  SPECIAL ASSESSMENTS TO THE RESPECTIVE MUNICIPALITY, COUNTY, OR

13  SPECIAL DISTRICT. ALL ASSESSMENTS ARE SUBJECT TO PERIODIC

14  CHANGE.

15         5.4.  YOUR FAILURE TO PAY SPECIAL ASSESSMENTS OR

16  ASSESSMENTS LEVIED BY A MANDATORY HOMEOWNERS' ASSOCIATION

17  COULD RESULT IN A LIEN ON YOUR PROPERTY.

18         6.5.  THERE MAY BE (IS) (IS NOT) AN OBLIGATION TO PAY

19  RENT OR LAND USE FEES FOR RECREATIONAL OR OTHER COMMONLY USED

20  FACILITIES AS AN OBLIGATION OF MEMBERSHIP IN THE HOMEOWNERS'

21  ASSOCIATION. IF APPLICABLE, THE CURRENT AMOUNT IS $______ PER

22  ______. (If such obligation exists, then the amount of the

23  current obligation shall be set forth.)

24         7.6.  THE DEVELOPER MAY HAVE THE RIGHT TO AMEND THE

25  RESTRICTIVE COVENANTS (CAN) (CANNOT) BE AMENDED WITHOUT THE

26  APPROVAL OF THE ASSOCIATION MEMBERSHIP OR THE APPROVAL OF THE,

27  IF NO MANDATORY ASSOCIATION EXISTS, PARCEL OWNERS.

28         8.7.  THE STATEMENTS CONTAINED IN THIS DISCLOSURE FORM

29  ARE ONLY SUMMARY IN NATURE, AND, AS A PROSPECTIVE PURCHASER,

30  YOU SHOULD REFER TO THE COVENANTS AND THE ASSOCIATION

31  GOVERNING DOCUMENTS BEFORE PURCHASING PROPERTY.


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 1         9.8.  THESE DOCUMENTS ARE EITHER MATTERS OF PUBLIC

 2  RECORD AND CAN BE OBTAINED FROM THE RECORD OFFICE IN THE

 3  COUNTY WHERE THE PROPERTY IS LOCATED, OR ARE NOT RECORDED AND

 4  CAN BE OBTAINED FROM THE DEVELOPER.

 5  DATE:                                               PURCHASER:

 6                                                      PURCHASER:

 7  

 8  The disclosure must be supplied by the developer, or by the

 9  parcel owner if the sale is by an owner that is not the

10  developer.  Any contract or agreement for sale shall refer to

11  and incorporate the disclosure summary and shall include, in

12  prominent language, a statement that the potential buyer

13  should not execute the contract or agreement until they have

14  received and read the disclosure summary required by this

15  section.

16         (b)  Each contract entered into for the sale of

17  property governed by covenants subject to disclosure required

18  by this section must contain in conspicuous type a clause that

19  states:

20  

21         IF THE DISCLOSURE SUMMARY REQUIRED BY SECTION

22         720.601 689.26, FLORIDA STATUTES, HAS NOT BEEN

23         PROVIDED TO THE PROSPECTIVE PURCHASER BEFORE

24         EXECUTING THIS CONTRACT FOR SALE, THIS CONTRACT

25         IS VOIDABLE BY BUYER BY DELIVERING TO SELLER OR

26         SELLER'S AGENT OR REPRESENTATIVE WRITTEN NOTICE

27         OF THE BUYER'S INTENTION TO CANCEL WITHIN 3

28         DAYS AFTER RECEIPT OF THE DISCLOSURE SUMMARY OR

29         PRIOR TO CLOSING, WHICHEVER OCCURS FIRST. ANY

30         PURPORTED WAIVER OF THIS VOIDABILITY RIGHT HAS

31  


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 1         NO EFFECT. BUYER'S RIGHT TO VOID THIS CONTRACT

 2         SHALL TERMINATE AT CLOSING.

 3  

 4         (c)  If the disclosure summary is not provided to a

 5  prospective purchaser before the purchaser executes a contract

 6  for the sale of property governed by covenants that are

 7  subject to disclosure pursuant to this section, the purchaser

 8  may void the contract by delivering to the seller or the

 9  seller's agent or representative written notice canceling the

10  contract within 3 days after receipt of the disclosure summary

11  or prior to closing, whichever occurs first. This right may

12  not be waived by the purchaser but terminates at closing. A

13  contract that does not conform to the requirements of this

14  subsection is voidable at the option of the purchaser prior to

15  closing.

16         (2)  This section does not apply to any association

17  regulated under chapter 718, chapter 719, chapter 721, or

18  chapter 723 or to a subdivider registered under chapter 498;

19  and also does not apply if disclosure regarding the

20  association is otherwise made in connection with the

21  requirements of chapter 718, chapter 719, chapter 721, or

22  chapter 723.

23         Section 22.  Section 689.265, Florida Statutes, is

24  transferred and renumbered as section 720.3086, Florida

25  Statutes, to read:

26         720.3086 689.265  Financial report.--In a residential

27  subdivision in which the owners of lots or parcels must pay

28  mandatory maintenance or amenity fees to the subdivision

29  developer or to the owners of the common areas, recreational

30  facilities, and other properties serving the lots or parcels,

31  the developer or owner of such areas, facilities, or


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 1  properties shall make public, within 60 days following the end

 2  of each fiscal year, a complete financial report of the

 3  actual, total receipts of mandatory maintenance or amenity

 4  fees received by it, and an itemized listing of the

 5  expenditures made by it from such fees, for that year.  Such

 6  report shall be made public by mailing it to each lot or

 7  parcel owner in the subdivision, by publishing it in a

 8  publication regularly distributed within the subdivision, or

 9  by posting it in prominent locations in the subdivision.  This

10  section does not apply to amounts paid to homeowner

11  associations pursuant to chapter 617, chapter 718, chapter

12  719, chapter 721, or chapter 723, or to amounts paid to local

13  governmental entities, including special districts.

14         Section 23.  Paragraphs (g) and (h) of subsection (2)

15  of section 498.025, Florida Statutes, are amended to read:

16         498.025  Exemptions.--

17         (2)  Except as provided in s. 498.022, the provisions

18  of this chapter do not apply to offers or dispositions of

19  interests in lots, parcels, or units contained in a recorded

20  subdivision plat, or resulting from the subdivision of land in

21  accordance with applicable local land development laws and

22  regulations pursuant to part II of chapter 163, including

23  lots, parcels, units, or interest vested under such part, if

24  all of the following conditions exist:

25         (g)  The contract for purchase or lease contains, and

26  the subdivider complies with, the following provisions:

27         1.  The purchaser must inspect the subdivided land

28  prior to the execution of the contract or lease.

29         2.  The purchaser shall have an absolute right to

30  cancel the contract or lease for any reason whatsoever for a

31  


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 1  period of 7 business days following the date on which the

 2  contract or lease was executed by the purchaser.

 3         3.  In the event the purchaser elects to cancel within

 4  the period provided, all funds or other property paid by the

 5  purchaser shall be refunded without penalty or obligation

 6  within 20 days of the receipt of the notice of cancellation by

 7  the developer.

 8         4.  All funds or property paid by the purchaser shall

 9  be put in escrow until closing has occurred and the lease or

10  deed has been recorded.

11         5.  Unless otherwise timely canceled, closing shall

12  occur within 180 days of the date of execution of the contract

13  by the purchaser.

14         6.  When title is conveyed, said title shall be

15  conveyed by statutory warranty deed unencumbered by any lien

16  or mortgage except for any first purchase money mortgage given

17  by the purchaser and restrictions, covenants, or easements of

18  record.

19         7.  The subdivider presents to the purchaser the

20  disclosure required by s. 720.601 s. 689.26 prior to the

21  execution of the contract or lease.

22         (h)  The agreement for deed contains, and the

23  subdivider complies with, the following provisions:

24         1.  The purchaser must inspect the subdivided land

25  prior to the execution of the agreement for deed.

26         2.  The purchaser shall have an absolute right to

27  cancel the agreement for deed for any reason whatsoever for a

28  period of 7 business days following the date on which the

29  agreement for deed was executed by the purchaser.

30         3.  If the purchaser elects to cancel within the period

31  provided, all funds or other property paid by the purchaser


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 1  shall be refunded without penalty or obligation within 20 days

 2  after the receipt of the notice of cancellation by the

 3  developer.

 4         4.  All funds or for property paid by the purchaser

 5  shall be put in escrow until the agreement for deed has been

 6  recorded in the county in which the subdivision is located.

 7         5.  Unless otherwise timely canceled, the agreement for

 8  deed shall be recorded within 180 days after its execution by

 9  the purchaser.

10         6.  Sale of lots in the subdivision shall be restricted

11  solely to residents of the state.

12         7.  The underlying mortgage or other ancillary

13  documents shall contain release provisions for the individual

14  lot purchased.

15         8.  The subdivider presents to the purchaser the

16  disclosure required by s. 720.601 s. 689.26 prior to the

17  execution of the agreement for deed.

18         Section 24.  Section 720.602, Florida Statutes, is

19  created to read:

20         720.602  Publication of false and misleading

21  information.--

22         (1)  Any person who, in reasonable reliance upon any

23  material statement or information that is false or misleading

24  and published by or under authority from the developer in

25  advertising and promotional materials, including, but not

26  limited to, a contract of purchaser, the declaration of

27  covenants, exhibits to a declaration of covenants, brochures,

28  and newspaper advertising, pays anything of value toward the

29  purchase of a parcel in a community located in this state has

30  a cause of action to rescind the contract or collect damages

31  from the developer for his or her loss before the closing of


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 1  the transaction. After the closing of the transaction, the

 2  purchaser has a cause of action against the developer for

 3  damages under this section from the time of closing until 1

 4  year after the date upon which the last of the events

 5  described in paragraphs (a) through (d) occur:

 6         (a)  The closing of the transaction;

 7         (b)  The issuance by the applicable governmental

 8  authority of a certificate of occupancy or other evidence of

 9  sufficient completion of construction of the purchaser's

10  residence to allow lawful occupancy of the residence by the

11  purchaser. In counties or municipalities in which certificates

12  of occupancy or other evidences of completion sufficient to

13  allow lawful occupancy are not customarily issued, for the

14  purpose of this section, evidence of lawful occupancy shall be

15  deemed to be given or issued upon the date that such lawful

16  occupancy of the residence may be allowed under prevailing

17  applicable laws, ordinances, or statutes;

18         (c)  The completion by the developer of the common

19  areas and such recreational facilities, whether or not the

20  same are common areas, which the developer is obligated to

21  complete or provide under the terms of the written contract,

22  governing documents, or written agreement for purchase or

23  lease of the parcel; or

24         (d)  In the event there is not a written contract or

25  agreement for sale or lease of the parcel, then the completion

26  by the developer of the common areas and such recreational

27  facilities, whether or not they are common areas, which the

28  developer would be obligated to complete under any rule of law

29  applicable to the developer's obligation.

30  

31  


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 1  Under no circumstances may a cause of action created or

 2  recognized under this section survive for a period of more

 3  than 5 years after the closing of the transaction.

 4         (2)  In any action for relief under this section, the

 5  prevailing party may recover reasonable attorney's fees. A

 6  developer may not expend association funds in the defense of

 7  any suit under this section.

 8         Section 25.  Subsection (1) of section 34.01, Florida

 9  Statutes, is amended to read:

10         34.01  Jurisdiction of county court.--

11         (1)  County courts shall have original jurisdiction:

12         (a)  In all misdemeanor cases not cognizable by the

13  circuit courts;

14         (b)  Of all violations of municipal and county

15  ordinances; and

16         (c)  Of all actions at law in which the matter in

17  controversy does not exceed the sum of $15,000, exclusive of

18  interest, costs, and attorney's fees, except those within the

19  exclusive jurisdiction of the circuit courts. The party

20  instituting any civil action, suit, or proceeding pursuant to

21  this paragraph where the amount in controversy is in excess of

22  $5,000 shall pay to the clerk of the county court the filing

23  fees and service charges in the same amounts and in the same

24  manner as provided in s. 28.241; and.

25         (d)  Of disputes occurring in the homeowners'

26  associations as described in s. 720.311(2)(a), which shall be

27  concurrent with jurisdiction of the circuit courts.

28         Section 26.  Paragraph (a) of subsection (1) of section

29  316.00825, Florida Statutes, is amended to read:

30  

31  


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 1         316.00825  Closing and abandonment of roads; optional

 2  conveyance to homeowners' association; traffic control

 3  jurisdiction.--

 4         (1)(a)  In addition to the authority provided in s.

 5  336.12, the governing body of the county may abandon the roads

 6  and rights-of-way dedicated in a recorded residential

 7  subdivision plat and simultaneously convey the county's

 8  interest in such roads, rights-of-way, and appurtenant

 9  drainage facilities to a homeowners' association for the

10  subdivision, if the following conditions have been met:

11         1.  The homeowners' association has requested the

12  abandonment and conveyance in writing for the purpose of

13  converting the subdivision to a gated neighborhood with

14  restricted public access.

15         2.  No fewer than four-fifths of the owners of record

16  of property located in the subdivision have consented in

17  writing to the abandonment and simultaneous conveyance to the

18  homeowners' association.

19         3.  The homeowners' association is both a corporation

20  not for profit organized and in good standing under chapter

21  617, and a "homeowners' association" as  defined in s.

22  720.301(8) s. 720.301(7) with the power to levy and collect

23  assessments for routine and periodic major maintenance and

24  operation of street lighting, drainage, sidewalks, and

25  pavement in the subdivision.

26         4.  The homeowners' association has entered into and

27  executed such agreements, covenants, warranties, and other

28  instruments; has provided, or has provided assurance of, such

29  funds, reserve funds, and funding sources; and has satisfied

30  such other requirements and conditions as may be established

31  or imposed by the county with respect to the ongoing


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 1  operation, maintenance, and repair and the periodic

 2  reconstruction or replacement of the roads, drainage, street

 3  lighting, and sidewalks in the subdivision after the

 4  abandonment by the county.

 5         Section 27.  Subsection (2) of section 558.002, Florida

 6  Statutes, is amended to read:

 7         558.002  Definitions.--As used in this act, the term:

 8         (2)  "Association" has the same meaning as in s.

 9  718.103(2), s. 719.103(2), s. 720.301(8) s. 720.301(7), or s.

10  723.025.

11         Section 28.  The Division of Statutory Revision is

12  requested to designate sections 720.301-720.312, Florida

13  Statutes, as part I of chapter 720, Florida Statutes; to

14  designate sections 720.401-720.405, Florida Statutes, as part

15  II of chapter 720, Florida Statutes, and entitle that part as

16  "Covenant Revitalization;" to designate sections 720.601 and

17  720.602, Florida Statutes, as part III of chapter 720, Florida

18  Statutes, and entitle that part "DISCLOSURE PRIOR TO SALE OF

19  RESIDENTIAL PARCELS"; and to designate section 720.501,

20  Florida Statutes, as part IV of chapter 720, Florida Statutes,

21  and entitle that part "RIGHTS AND OBLIGATIONS OF DEVELOPERS."

22         Section 29.  Subsection (4) is added to section

23  190.012, Florida Statutes, to read:

24         190.012  Special powers; public improvements and

25  community facilities.--The district shall have, and the board

26  may exercise, subject to the regulatory jurisdiction and

27  permitting authority of all applicable governmental bodies,

28  agencies, and special districts having authority with respect

29  to any area included therein, any or all of the following

30  special powers relating to public improvements and community

31  facilities authorized by this act:


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 1         (4)(a)  To adopt rules necessary for the district to

 2  enforce certain deed restrictions pertaining to the use and

 3  operation of real property within the district. For the

 4  purpose of this subsection, "deed restrictions" are those

 5  covenants, conditions, and restrictions contained in any

 6  applicable declarations of covenants and restrictions that

 7  govern the use and operation of real property within the

 8  district and, for which covenants, conditions, and

 9  restrictions, there is no homeowners' association or property

10  owner's association having respective enforcement powers. The

11  district may adopt by rule all or certain portions of the deed

12  restrictions that:

13         1.  Relate to limitations or prohibitions that apply

14  only to external structures and are deemed by the district to

15  be generally beneficial for the district's landowners and for

16  which enforcement by the district is appropriate, as

17  determined by the district's board of supervisors; or

18         2.  Are consistent with the requirements of a

19  development order or regulatory agency permit.

20         (b)  The board may vote to adopt such rules only when

21  all of the following conditions exist:

22         1.  The district's geographic area contains no

23  homeowners' associations as defined in s. 720.301(7);

24         2.  The district was in existence on the effective date

25  of this subsection, or is located within a development that

26  consists of multiple developments of regional impact and a

27  Florida Quality Development;

28         3.  The majority of the board has been elected by

29  qualified electors pursuant to the provisions of s. 190.006;

30  and

31  


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 1         4.  The declarant in any applicable declarations of

 2  covenants and restrictions has provided the board with a

 3  written agreement that such rules may be adopted. A memorandum

 4  of the agreement shall be recorded in the public records.

 5         (c)  Within 60 days after such rules taking effect, the

 6  district shall record a notice of rule adoption stating

 7  generally what rules were adopted and where a copy of the

 8  rules may be obtained. Districts may impose fines for

 9  violations of such rules and enforce such rules and fines in

10  circuit court through injunctive relief.

11         Section 30.  Section 190.046, Florida Statutes, is

12  amended to read:

13         190.046  Termination, contraction, or expansion of

14  district.--

15         (1)  The board may petition to contract or expand the

16  boundaries of a community development district in the

17  following manner:

18         (a)  The petition shall contain the same information

19  required by s. 190.005(1)(a)1. and 8.  In addition, if the

20  petitioner seeks to expand the district, the petition shall

21  describe the proposed timetable for construction of any

22  district services to the area, the estimated cost of

23  constructing the proposed services, and the designation of the

24  future general distribution, location, and extent of public

25  and private uses of land proposed for the area by the future

26  land use plan element of the adopted local government local

27  comprehensive plan.  If the petitioner seeks to contract the

28  district, the petition shall describe what services and

29  facilities are currently provided by the district to the area

30  being removed, and the designation of the future general

31  distribution, location, and extent of public and private uses


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 1  of land proposed for the area by the future land element of

 2  the adopted local government comprehensive plan.

 3         (b)  For those districts initially established by

 4  county ordinance, the petition for ordinance amendment shall

 5  be filed with the county commission.  If the land to be

 6  included or excluded is, in whole or in part, within the

 7  boundaries of a municipality, then the county commission shall

 8  not amend the ordinance without municipal approval.  A public

 9  hearing shall be held in the same manner and with the same

10  public notice as other ordinance amendments.  The county

11  commission shall consider the record of the public hearing and

12  the factors set forth in s. 190.005(1)(e) in making its

13  determination to grant or deny the petition for ordinance

14  amendment.

15         (c)  For those districts initially established by

16  municipal ordinance pursuant to s. 190.005(2)(e), the

17  municipality shall assume the duties of the county commission

18  set forth in paragraph (b); however, if any of the land to be

19  included or excluded, in whole or in part, is outside the

20  boundaries of the municipality, then the municipality shall

21  not amend its ordinance without county commission approval.

22         (d)1.  For those districts initially established by

23  administrative rule pursuant to s. 190.005(1), the petition

24  shall be filed with the Florida Land and Water Adjudicatory

25  Commission.

26         2.  Prior to filing the petition, the petitioner shall

27  pay a filing fee of $1,500 to the county and to each

28  municipality the boundaries of which are contiguous with or

29  contain all or a portion of the land within the district or

30  the proposed amendment, and submit a copy of the petition to

31  the county and to each such municipality.  In addition, if the


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 1  district is not the petitioner, the petitioner shall file the

 2  petition with the district board of supervisors.

 3         3.  The county and each municipality shall have the

 4  option of holding a public hearing as provided by s.

 5  190.005(1)(c). However, such public hearing shall be limited

 6  to consideration of the contents of the petition and whether

 7  the petition for amendment should be supported by the county

 8  or municipality.

 9         4.  The district board of supervisors shall, in lieu of

10  a hearing officer, hold the local public hearing provided for

11  by s. 190.005(1)(d).  This local public hearing shall be

12  noticed in the same manner as provided in s. 190.005(1)(d).

13  Within 45 days of the conclusion of the hearing, the district

14  board of supervisors shall transmit to the Florida Land and

15  Water Adjudicatory Commission the full record of the local

16  hearing, the transcript of the hearing, any resolutions

17  adopted by the local general-purpose governments, and its

18  recommendation whether to grant the petition for amendment.

19  The commission shall then proceed in accordance with s.

20  190.005(1)(e).

21         5.  A rule amending a district boundary shall describe

22  the land to be added or deleted.

23         (e)  In all cases, written consent of all the

24  landowners whose land is to be added to or deleted from the

25  district shall be required. The filing of the petition for

26  expansion or contraction by the district board of supervisors

27  shall constitute consent of the landowners within the district

28  other than of landowners whose land is proposed to be added to

29  or removed from the district.

30         (f)1.  During the existence of a district initially

31  established by administrative rule, petitions to amend the


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 1  boundaries of the district pursuant to paragraphs (a)-(e)

 2  shall be limited to a cumulative total of no more than 10

 3  percent of the land in the initial district, and in no event

 4  shall all such petitions to amend the boundaries ever

 5  encompass more than a total of 250 acres.

 6         2.  For districts initially established by county or

 7  municipal ordinance, the limitation provided by this paragraph

 8  shall be a cumulative total of no more than 50 percent of the

 9  land in the initial district, and in no event shall all such

10  petitions to amend the boundaries ever encompass more than a

11  total of 500 acres.

12         3.  Boundary expansions for districts initially

13  established by county or municipal ordinance shall follow the

14  procedure set forth in paragraph (b) or paragraph (c).

15         (g)  Petitions to amend the boundaries of the district

16  which exceed the amount of land specified in paragraph (f)

17  shall be considered petitions to establish a new district and

18  shall follow all of the procedures specified in s. 190.005.

19         (2)  The district shall remain in existence unless:

20         (a)  The district is merged with another district as

21  provided in subsection (3);

22         (b)  All of the specific community development systems,

23  facilities, and services that it is authorized to perform have

24  been transferred to a general-purpose unit of local government

25  in the manner provided in subsections (4), (5), and (6); or

26         (c)  The district is dissolved as provided in

27  subsection (7), or subsection (8), or subsection (9).

28         (3)  The district may merge with other community

29  development districts upon filing a petition for establishment

30  of a community development district pursuant to s. 190.005 or

31  may merge with any other special districts upon filing a


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 1  petition for establishment of a community development district

 2  pursuant to s. 190.005.  The government formed by a merger

 3  involving a community development district pursuant to this

 4  section shall assume all indebtedness of, and receive title

 5  to, all property owned by the preexisting special districts.

 6  Prior to filing said petition, the districts desiring to merge

 7  shall enter into a merger agreement and shall provide for the

 8  proper allocation of the indebtedness so assumed and the

 9  manner in which said debt shall be retired. The approval of

10  the merger agreement by the board of supervisors elected by

11  the electors of the district shall constitute consent of the

12  landowners within the district.

13         (4)  The local general-purpose government within the

14  geographical boundaries of which the district lies may adopt a

15  nonemergency ordinance providing for a plan for the transfer

16  of a specific community development service from a district to

17  the local general-purpose government.  The plan must provide

18  for the assumption and guarantee of the district debt that is

19  related to the service by the local general-purpose government

20  and must demonstrate the ability of the local general-purpose

21  government to provide such service:

22         (a)  As efficiently as the district.

23         (b)  At a level of quality equal to or higher than the

24  level of quality actually delivered by the district to the

25  users of the service.

26         (c)  At a charge equal to or lower than the actual

27  charge by the district to the users of the service.

28         (5)  No later than 30 days following the adoption of a

29  transfer plan ordinance, the board of supervisors may file, in

30  the circuit court for the county in which the local

31  general-purpose government that adopted the ordinance is


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 1  located, a petition seeking review by certiorari of the

 2  factual and legal basis for the adoption of the transfer plan

 3  ordinance.

 4         (6)  Upon the transfer of all of the community

 5  development services of the district to a general-purpose unit

 6  of local government, the district shall be terminated in

 7  accordance with a plan of termination which shall be adopted

 8  by the board of supervisors and filed with the clerk of the

 9  circuit court.

10         (7)  If, within 5 years after the effective date of the

11  rule or ordinance establishing creating the district, a

12  landowner has not received a development permit, as defined in

13  chapter 380, on some part or all of the area covered by the

14  district, then the district will be automatically dissolved

15  and a judge of the circuit court shall cause a statement to

16  that effect to be filed in the public records.

17         (8)  In the event the district has become inactive

18  pursuant to s. 189.4044, the respective board of county

19  commissioners or city commission shall be informed and it

20  shall take appropriate action.

21         (9)  If a district has no outstanding financial

22  obligations and no operating or maintenance responsibilities,

23  upon the petition of the district, the district may be

24  dissolved by a nonemergency ordinance of the general-purpose

25  local governmental entity that established the district or, if

26  the district was established by rule of the Florida Land and

27  Water Adjudicatory Commission, the district may be dissolved

28  by repeal of such rule of the commission.

29         Section 31.  Section 190.006, Florida Statutes, is

30  amended to read:

31         190.006  Board of supervisors; members and meetings.--


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 1         (1)  The board of the district shall exercise the

 2  powers granted to the district pursuant to this act. The board

 3  shall consist of five members; except as otherwise provided

 4  herein, each member shall hold office for a term of 2 years or

 5  4 years, as provided in this section, and until a successor is

 6  chosen and qualifies.  The members of the board must be

 7  residents of the state and citizens of the United States.

 8         (2)(a)  Within 90 days following the effective date of

 9  the rule or ordinance establishing the district, there shall

10  be held a meeting of the landowners of the district for the

11  purpose of electing five supervisors for the district.  Notice

12  of the landowners' meeting shall be published once a week for

13  2 consecutive weeks in a newspaper which is in general

14  circulation in the area of the district, the last day of such

15  publication to be not fewer than 14 days or more than 28 days

16  before the date of the election.  The landowners, when

17  assembled at such meeting, shall organize by electing a chair

18  who shall conduct the meeting. The chair may be any person

19  present at the meeting. If the chair is a landowner or proxy

20  holder of a landowner, he or she may nominate candidates and

21  make and second motions.

22         (b)  At such meeting, each landowner shall be entitled

23  to cast one vote per acre of land owned by him or her and

24  located within the district for each person to be elected.  A

25  landowner may vote in person or by proxy in writing. Each

26  proxy must be signed by one of the legal owners of the

27  property for which the vote is cast and must contain the typed

28  or printed name of the individual who signed the proxy; the

29  street address, legal description of the property, or tax

30  parcel identification number; and the number of authorized

31  votes. If the proxy authorizes more than one vote, each


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 1  property must be listed and the number of acres of each

 2  property must be included. The signature on a proxy need not

 3  be notarized. A fraction of an acre shall be treated as 1

 4  acre, entitling the landowner to one vote with respect

 5  thereto.  The two candidates receiving the highest number of

 6  votes shall be elected for a period of 4 years, and the three

 7  candidates receiving the next largest number of votes shall be

 8  elected for a period of 2 years, with the term of office for

 9  each successful candidate commencing upon election. The

10  members of the first board elected by landowners shall serve

11  their respective 4-year or 2-year terms; however, the next

12  election by landowners shall be held on the first Tuesday in

13  November. Thereafter, there shall be an election of

14  supervisors for the district every 2 years in November on a

15  date established by the board and noticed pursuant to

16  paragraph (a). The second and subsequent landowners' election

17  shall be announced at a public meeting of the board at least

18  90 days prior to the date of the landowners' meeting and shall

19  also be noticed pursuant to paragraph (a). Instructions on how

20  all landowners may participate in the election, along with

21  sample proxies, shall be provided during the board meeting

22  that announces the landowners' meeting. The two candidates

23  receiving the highest number of votes shall be elected to

24  serve for a 4-year period, and the remaining candidate elected

25  shall serve for a 2-year period.

26         (3)(a)1.  If the board proposes to exercise the ad

27  valorem taxing power authorized by s. 190.021, the district

28  board shall call an election at which the members of the board

29  of supervisors will be elected.  Such election shall be held

30  in conjunction with a primary or general election unless the

31  district bears the cost of a special election.  Each member


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 1  shall be elected by the qualified electors of the district for

 2  a term of 4 years, except that, at the first such election,

 3  three members shall be elected for a period of 4 years and two

 4  members shall be elected for a period of 2 years.  All elected

 5  board members must be qualified electors of the district.

 6         2.a.  Regardless of whether a district has proposed to

 7  levy ad valorem taxes, commencing 6 years after the initial

 8  appointment of members or, for a district exceeding 5,000

 9  acres in area, 10 years after the initial appointment of

10  members, the position of each member whose term has expired

11  shall be filled by a qualified elector of the district,

12  elected by the qualified electors of the district.  However,

13  for those districts established after June 21, 1991, and for

14  those existing districts established after December 31, 1983,

15  which have less than 50 qualified electors on June 21, 1991,

16  sub-subparagraphs b. and d. c. shall apply.

17         b.  For those districts to which this sub-subparagraph

18  applies If, in the 6th year after the initial appointment of

19  members, or 10 years after such initial appointment for

20  districts exceeding 5,000 acres in area, there are not at

21  least 250 qualified electors in the district, or for a

22  district exceeding 5,000 acres, there are not at least 500

23  qualified electors, members of the board shall continue to be

24  elected by landowners.

25         b.  After the 6th or 10th year, once a district reaches

26  250 or 500 qualified electors, respectively, then the

27  positions position of two board members whose terms are

28  expiring shall be filled by qualified electors of the

29  district, elected by the qualified electors of the district

30  for 4-year terms.  One of these board members shall serve a

31  2-year term, and the other a 4-year term.  The remaining board


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 1  member whose term is expiring shall be elected for a 4-year

 2  term by the landowners and is not required to be a qualified

 3  elector. Thereafter, as terms expire, board members shall be

 4  qualified electors elected by qualified electors of the

 5  district for a term of 4 years.

 6         c.  Once a district qualifies to have any of its board

 7  members elected by the qualified electors of the district, the

 8  initial and all subsequent elections by the qualified electors

 9  of the district shall be held at the general election in

10  November. The board shall adopt a resolution if necessary to

11  implement this requirement when the board determines the

12  number of qualified electors as required by sub-subparagraph

13  d., to extend or reduce the terms of current board members.

14         d.c.  On or before June 1 July 15 of each year, the

15  board shall determine the number of qualified electors in the

16  district as of the immediately preceding April 15 June 1.  The

17  board shall use and rely upon the official records maintained

18  by the supervisor of elections and property appraiser or tax

19  collector in each county in making this determination.  Such

20  determination shall be made at a properly noticed meeting of

21  the board and shall become a part of the official minutes of

22  the district.

23         (b)  Elections of board members by qualified electors

24  held pursuant to this subsection shall be nonpartisan and

25  shall be conducted in the manner prescribed by law for holding

26  general elections. Board members shall assume the office on

27  the second Tuesday following their election.

28         (c)  Candidates seeking election to office by qualified

29  electors under this subsection shall conduct their campaigns

30  in accordance with the provisions of chapter 106 and shall

31  file qualifying papers and qualify for individual seats in


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 1  accordance with s. 99.061. Candidates shall pay a qualifying

 2  fee, which shall consist of a filing fee and an election

 3  assessment or, as an alternative, shall file a petition signed

 4  by not less than 1 percent of the registered voters of the

 5  district, Candidates shall file petitions, and take the oath

 6  required in s. 99.021, with the supervisor of elections in the

 7  county affected by such candidacy. The amount of the filing

 8  fee is 3 percent of $4,800; however, if the electors have

 9  provided for compensation pursuant to subsection (8), the

10  amount of the filing fee is 3 percent of the maximum annual

11  compensation so provided. The amount of the election

12  assessment is 1 percent of $4,800; however, if the electors

13  have provided for compensation pursuant to subsection (8), the

14  amount of the election assessment is 1 percent of the maximum

15  annual compensation so provided. The filing fee and election

16  assessment shall be distributed as provided in s. 105.031(3).

17         (d)  The supervisor of elections shall appoint the

18  inspectors and clerks of elections, prepare and furnish the

19  ballots, designate polling places, and canvass the returns of

20  the election of board members by qualified electors.  The

21  county canvassing board of county commissioners shall declare

22  and certify the results of the election.

23         (4)  Members of the board shall be known as supervisors

24  and, upon entering into office, shall take and subscribe to

25  the oath of office as prescribed by s. 876.05.  They shall

26  hold office for the terms for which they were elected or

27  appointed and until their successors are chosen and qualified.

28  If, during the term of office, a vacancy occurs, the remaining

29  members of the board shall fill the vacancy by an appointment

30  for the remainder of the unexpired term.

31  


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 1         (5)  A majority of the members of the board constitutes

 2  a quorum for the purposes of conducting its business and

 3  exercising its powers and for all other purposes.  Action

 4  taken by the district shall be upon a vote of a majority of

 5  the members present unless general law or a rule of the

 6  district requires a greater number.

 7         (6)  As soon as practicable after each election or

 8  appointment, the board shall organize by electing one of its

 9  members as chair and by electing a secretary, who need not be

10  a member of the board, and such other officers as the board

11  may deem necessary.

12         (7)  The board shall keep a permanent record book

13  entitled "Record of Proceedings of ...(name of district)...

14  Community Development District," in which shall be recorded

15  minutes of all meetings, resolutions, proceedings,

16  certificates, bonds given by all employees, and any and all

17  corporate acts.  The record book shall at reasonable times be

18  opened to inspection in the same manner as state, county, and

19  municipal records pursuant to chapter 119.  The record book

20  shall be kept at the office or other regular place of business

21  maintained by the board in the county or municipality in which

22  the district is located or within the boundaries of a

23  development of regional impact or Florida Quality Development,

24  or combination of a development of regional impact and Florida

25  Quality Development, which includes the district.

26         (8)  Each supervisor shall be entitled to receive for

27  his or her services an amount not to exceed $200 per meeting

28  of the board of supervisors, not to exceed $4,800 per year per

29  supervisor, or an amount established by the electors at

30  referendum.  In addition, each supervisor shall receive travel

31  and per diem expenses as set forth in s. 112.061.


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 1         (9)  All meetings of the board shall be open to the

 2  public and governed by the provisions of chapter 286.

 3         Section 32.  This act shall take effect October 1,

 4  2004.

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CODING: Words stricken are deletions; words underlined are additions.