| 1 | Representative Smith offered the following: |
| 2 |
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| 3 | Amendment (with title amendment) |
| 4 | On page 15, between line(s) 22 and 23, |
| 5 | insert: |
| 6 | Section 5. Paragraph (d) of subsection (1) of section |
| 7 | 718.501, Florida Statutes, is amended to read: |
| 8 | 718.501 Powers and duties of Division of Florida Land |
| 9 | Sales, Condominiums, and Mobile Homes.-- |
| 10 | (1) The Division of Florida Land Sales, Condominiums, and |
| 11 | Mobile Homes of the Department of Business and Professional |
| 12 | Regulation, referred to as the "division" in this part, in |
| 13 | addition to other powers and duties prescribed by chapter 498, |
| 14 | has the power to enforce and ensure compliance with the |
| 15 | provisions of this chapter and rules promulgated pursuant hereto |
| 16 | relating to the development, construction, sale, lease, |
| 17 | ownership, operation, and management of residential condominium |
| 18 | units. In performing its duties, the division has the following |
| 19 | powers and duties: |
| 20 | (d) Notwithstanding any remedies available to unit owners |
| 21 | and associations, if the division has reasonable cause to |
| 22 | believe that a violation of any provision of this chapter or |
| 23 | rule promulgated pursuant hereto has occurred, the division may |
| 24 | institute enforcement proceedings in its own name against any |
| 25 | developer, association, officer, or member of the board of |
| 26 | administration, or its assignees or agents, as follows: |
| 27 | 1. The division may permit a person whose conduct or |
| 28 | actions may be under investigation to waive formal proceedings |
| 29 | and enter into a consent proceeding whereby orders, rules, or |
| 30 | letters of censure or warning, whether formal or informal, may |
| 31 | be entered against the person. |
| 32 | 2. The division may issue an order requiring the |
| 33 | developer, association, officer, or member of the board of |
| 34 | administration, or its assignees or agents, to cease and desist |
| 35 | from the unlawful practice and take such affirmative action as |
| 36 | in the judgment of the division will carry out the purposes of |
| 37 | this chapter. Such affirmative action may include, but is not |
| 38 | limited to, an order requiring a developer to pay moneys |
| 39 | determined to be owed to a condominium association. |
| 40 | 3. The division may bring an action in circuit court on |
| 41 | behalf of a class of unit owners, lessees, or purchasers for |
| 42 | declaratory relief, injunctive relief, or restitution. |
| 43 | 4. The division may impose a civil penalty against a |
| 44 | developer or association, or its assignee or agent, for any |
| 45 | violation of this chapter or a rule promulgated pursuant hereto. |
| 46 | The division may impose a civil penalty individually against any |
| 47 | officer or board member who willfully and knowingly violates a |
| 48 | provision of this chapter, a rule adopted pursuant hereto, or a |
| 49 | final order of the division. The term "willfully and knowingly" |
| 50 | means that the division informed the officer or board member |
| 51 | that his or her action or intended action violates this chapter, |
| 52 | a rule adopted under this chapter, or a final order of the |
| 53 | division and that the officer or board member refused to comply |
| 54 | with the requirements of this chapter, a rule adopted under this |
| 55 | chapter, or a final order of the division. The division, prior |
| 56 | to initiating formal agency action under chapter 120, shall |
| 57 | afford the officer or board member an opportunity to voluntarily |
| 58 | comply with this chapter, a rule adopted under this chapter, or |
| 59 | a final order of the division. An officer or board member who |
| 60 | complies within 10 days is not subject to a civil penalty. A |
| 61 | penalty may be imposed on the basis of each day of continuing |
| 62 | violation, but in no event shall the penalty for any offense |
| 63 | exceed $5,000. By January 1, 1998, the division shall adopt, by |
| 64 | rule, penalty guidelines applicable to possible violations or to |
| 65 | categories of violations of this chapter or rules adopted by the |
| 66 | division. The guidelines must specify a meaningful range of |
| 67 | civil penalties for each such violation of the statute and rules |
| 68 | and must be based upon the harm caused by the violation, the |
| 69 | repetition of the violation, and upon such other factors deemed |
| 70 | relevant by the division. For example, the division may consider |
| 71 | whether the violations were committed by a developer or owner- |
| 72 | controlled association, the size of the association, and other |
| 73 | factors. The guidelines must designate the possible mitigating |
| 74 | or aggravating circumstances that justify a departure from the |
| 75 | range of penalties provided by the rules. It is the legislative |
| 76 | intent that minor violations be distinguished from those which |
| 77 | endanger the health, safety, or welfare of the condominium |
| 78 | residents or other persons and that such guidelines provide |
| 79 | reasonable and meaningful notice to the public of likely |
| 80 | penalties that may be imposed for proscribed conduct. This |
| 81 | subsection does not limit the ability of the division to |
| 82 | informally dispose of administrative actions or complaints by |
| 83 | stipulation, agreed settlement, or consent order. All amounts |
| 84 | collected shall be deposited with the Chief Financial Officer to |
| 85 | the credit of the Division of Florida Land Sales, Condominiums, |
| 86 | and Mobile Homes Trust Fund. If a developer fails to pay the |
| 87 | civil penalty, the division shall thereupon issue an order |
| 88 | directing that such developer cease and desist from further |
| 89 | operation until such time as the civil penalty is paid or may |
| 90 | pursue enforcement of the penalty in a court of competent |
| 91 | jurisdiction. If an association fails to pay the civil penalty, |
| 92 | the division shall thereupon pursue enforcement in a court of |
| 93 | competent jurisdiction, and the order imposing the civil penalty |
| 94 | or the cease and desist order will not become effective until 20 |
| 95 | days after the date of such order. Any action commenced by the |
| 96 | division shall be brought in the county in which the division |
| 97 | has its executive offices or in the county where the violation |
| 98 | occurred. In addition to the powers set forth in this |
| 99 | subparagraph, the division shall have the authority to appoint a |
| 100 | receiver in those communities where the division's investigation |
| 101 | has resulted in a finding that a board of directors has failed |
| 102 | to maintain, repair, and replace the common elements to the |
| 103 | extent the health, safety, and welfare of the residents is |
| 104 | endangered. |
| 105 |
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| 106 | ================ T I T L E A M E N D M E N T ================= |
| 107 | On page 1, line(s) 17, after the semicolon, |
| 108 | insert: amending s. 718.501, F.S.; authorizing the Division of |
| 109 | Florida Land Sales, Condominiums, and Mobile Homes to appoint a |
| 110 | receiver in certain communities which have failed to maintain, |
| 111 | repair, and replace common elements for certain purposes; |