Florida Senate - 2008 SB 2498
By Senator Bennett
21-03260D-08 20082498__
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A bill to be entitled
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An act relating to the Department of Business and
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Professional Regulation; amending s. 20.165, F.S.;
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changing the name of the Division of Florida Land Sales,
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Condominiums, and Mobile Homes to the Division of Florida
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Condominiums, Timeshares, and Mobile Homes; amending s.
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215.20, F.S.; conforming the name of the division's trust
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fund to correspond to the name change of the division;
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amending s. 450.33, F.S.; removing the requirement for a
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farm labor contractor to file a set of fingerprints with
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the department; amending s. 455.203, F.S.; authorizing the
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department to close and terminate deficient license
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applications and to approve professional license
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applications meeting certain criteria; amending s. 475.17,
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F.S.; revising requirements for licensure as a real estate
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broker; amending s. 475.451, F.S.; deleting requirements
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relating to the submission of certain real estate course
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rosters to the department; amending s. 489.511, F.S.;
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revising requirements for taking the electrical or alarm
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system contractor certification examination; providing
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requirements for certification; amending s. 489.515, F.S.;
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revising requirements for certification as a certified
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contractor by the Electrical Contractors' Licensing Board
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to reflect changes made to s. 489.511, F.S., by this act;
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renumbering s. 498.009, F.S., relating to the location of
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the division's offices; amending and renumbering s.
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498.011, F.S., relating to payment of per diem, mileage,
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and other expenses for division employees; providing for
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reimbursement of expenses for on-site review; deleting the
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expense reimbursement for inspection of subdivided lands;
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renumbering s. 498.013, F.S., relating to the
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authentication of records; amending and renumbering s.
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498.057, F.S., relating to service of process; deleting
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provision that service may be made by delivering a copy of
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the process to the division director; providing that the
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division can be the petitioner or the plaintiff; repealing
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regulation of land sales practices; amending s. 548.0065,
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F.S.; including amateur mixed martial arts in a provision
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relating to the authority of the Florida State Boxing
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Commission to suspend amateur matches for violation of
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certain health and safety standards; amending s. 548.008,
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F.S.; removing prohibition against holding amateur mixed
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martial arts matches in this state; amending s. 548.041,
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F.S.; providing additional licensure requirements for
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boxing participants; amending s. 718.501, F.S.; providing
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additional powers and duties of the division; providing
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for additional enforcement proceedings for carrying out
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the purposes of ch. 718, F.S.; deleting the payment of
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money by a developer to a condominium association as a
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permissible affirmative action; providing for actions of
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conservator or receiver; providing for application to
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circuit court for an order of restitution; providing for
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imposition of civil penalties and award of court costs,
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attorney's fees, and costs of investigation under certain
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circumstances; providing for contracting for investigative
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services; providing for acceptance of grants-in-aid;
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requiring the cooperation with similar agencies on
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establishment of certain procedures, standards, and forms;
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providing what constitutes completeness of notice;
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authorizing the division to issue a notice to show cause;
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providing conforming changes; amending s. 718.509, F.S.;
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revising to incorporate provisions of s. 498.019, F.S.,
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relating to the Division of Florida Condominiums,
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Timeshares, and Mobile Homes Trust Fund; revising
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provisions to conform to the change in division name;
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providing for the deposit of moneys resulting from an
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conform; providing an effective date.
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Be It Enacted by the Legislature of the State of Florida:
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Section 1. Paragraph (d) of subsection (2) of section
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20.165, Florida Statutes, is amended to read:
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20.165 Department of Business and Professional
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Regulation.--There is created a Department of Business and
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Professional Regulation.
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(2) The following divisions of the Department of Business
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and Professional Regulation are established:
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(d) Division of Florida Land Sales, Condominiums,
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Timeshares, and Mobile Homes.
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Section 2. Subsection (2) of section 73.073, Florida
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Statutes, is amended to read:
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73.073 Eminent domain procedure with respect to condominium
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common elements.--
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(2) With respect to the exercise of eminent domain or a
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negotiated sale for the purchase or taking of a portion of the
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common elements of a condominium, the condemning authority shall
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have the responsibility of contacting the condominium association
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and acquiring the most recent rolls indicating the names of the
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unit owners or contacting the appropriate taxing authority to
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obtain the names of the owners of record on the tax rolls.
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Notification shall thereupon be sent by certified mail, return
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receipt requested, to the unit owners of record of the
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condominium units by the condemning authority indicating the
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intent to purchase or take the required property and requesting a
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response from the unit owner. The condemning authority shall be
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responsible for the expense of sending notification pursuant to
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this section. Such notice shall, at a minimum, include:
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(a) The name and address of the condemning authority.
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(b) A written or visual description of the property.
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(c) The public purpose for which the property is needed.
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(d) The appraisal value of the property.
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(e) A clear, concise statement relating to the unit owner's
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right to object to the taking or appraisal value and the
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procedures and effects of exercising that right.
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(f) A clear, concise statement relating to the power of the
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association to convey the property on behalf of the unit owners
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if no objection to the taking or appraisal value is raised, and
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the effects of this alternative on the unit owner.
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The Division of Florida Land Sales, Condominiums, Timeshares, and
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Mobile Homes of the Department of Business and Professional
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Regulation may adopt, by rule, a standard form for such notice
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and may require the notice to include any additional relevant
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information.
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Section 3. Subsections (2) and (3) of section 190.009,
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Florida Statutes, are amended to read:
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190.009 Disclosure of public financing.--
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(2) The Division of Florida Land Sales, Condominiums, and
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Mobile Homes of the Department of Business and Professional
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Regulation shall ensure that disclosures made by developers
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pursuant to chapter 498 meet the requirements of subsection (1).
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(2)(3) The Department of Community Affairs shall keep a
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current list of districts and their disclosures pursuant to this
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act and shall make such studies and reports and take such actions
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as it deems necessary.
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Section 4. Paragraph (e) of subsection (6) of section
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192.037, Florida Statutes, is amended to read:
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192.037 Fee timeshare real property; taxes and assessments;
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escrow.--
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(6)
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(e) On or before May 1 of each year, a statement of
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receipts and disbursements of the escrow account must be filed
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with the Division of Florida Land Sales, Condominiums,
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Timeshares, and Mobile Homes of the Department of Business and
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Professional Regulation, which may enforce this paragraph
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pursuant to s. 721.26. This statement must appropriately show the
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amount of principal and interest in such account.
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Section 5. Paragraph (i) of subsection (8) of section
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213.053, Florida Statutes, is amended to read:
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213.053 Confidentiality and information sharing.--
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(8) Notwithstanding any other provision of this section,
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the department may provide:
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(i) Information relative to chapters 212 and 326 to the
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Division of Florida Land Sales, Condominiums, Timeshares, and
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Mobile Homes of the Department of Business and Professional
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Regulation in the conduct of its official duties.
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Disclosure of information under this subsection shall be pursuant
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to a written agreement between the executive director and the
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agency. Such agencies, governmental or nongovernmental, shall be
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bound by the same requirements of confidentiality as the
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Department of Revenue. Breach of confidentiality is a misdemeanor
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of the first degree, punishable as provided by s. 775.082 or s.
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Section 6. Paragraph (d) of subsection (4) of section
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215.20, Florida Statutes, is amended to read:
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215.20 Certain income and certain trust funds to contribute
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to the General Revenue Fund.--
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(4) The income of a revenue nature deposited in the
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following described trust funds, by whatever name designated, is
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that from which the appropriations authorized by subsection (3)
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shall be made:
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(d) Within the Department of Business and Professional
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Regulation:
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1. The Administrative Trust Fund.
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2. The Alcoholic Beverage and Tobacco Trust Fund.
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3. The Cigarette Tax Collection Trust Fund.
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4. The Division of Florida Land Sales, Condominiums,
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Timeshares, and Mobile Homes Trust Fund.
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5. The Hotel and Restaurant Trust Fund, with the exception
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of those fees collected for the purpose of funding of the
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hospitality education program as stated in s. 509.302.
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6. The Professional Regulation Trust Fund.
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7. The trust funds administered by the Division of Pari-
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mutuel Wagering.
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The enumeration of the foregoing moneys or trust funds shall not
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prohibit the applicability thereto of s. 215.24 should the
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Governor determine that for the reasons mentioned in s. 215.24
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the money or trust funds should be exempt herefrom, as it is the
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purpose of this law to exempt income from its force and effect
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when, by the operation of this law, federal matching funds or
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contributions or private grants to any trust fund would be lost
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to the state.
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Section 7. Subsection (2) of section 326.002, Florida
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Statutes, is amended to read:
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term:
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(2) "Division" means the Division of Florida Land Sales,
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Condominiums, Timeshares, and Mobile Homes of the Department of
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Business and Professional Regulation.
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Section 8. Paragraph (d) of subsection (2) and subsection
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(3) of section 326.006, Florida Statutes, are amended to read:
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326.006 Powers and duties of division.--
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(2) The division has the power to enforce and ensure
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compliance with the provisions of this chapter and rules adopted
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under this chapter relating to the sale and ownership of yachts
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and ships. In performing its duties, the division has the
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following powers and duties:
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(d) Notwithstanding any remedies available to a yacht or
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ship purchaser, if the division has reasonable cause to believe
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that a violation of any provision of this chapter or rule adopted
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under this chapter has occurred, the division may institute
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enforcement proceedings in its own name against any broker or
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salesperson or any of his or her assignees or agents, or against
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any unlicensed person or any of his or her assignees or agents,
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as follows:
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1. The division may permit a person whose conduct or
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actions are under investigation to waive formal proceedings and
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enter into a consent proceeding whereby orders, rules, or letters
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of censure or warning, whether formal or informal, may be entered
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against the person.
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2. The division may issue an order requiring the broker or
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salesperson or any of his or her assignees or agents, or
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requiring any unlicensed person or any of his or her assignees or
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agents, to cease and desist from the unlawful practice and take
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such affirmative action as in the judgment of the division will
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carry out the purposes of this chapter.
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3. The division may bring an action in circuit court on
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behalf of a class of yacht or ship purchasers for declaratory
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relief, injunctive relief, or restitution.
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4. The division may impose a civil penalty against a broker
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or salesperson or any of his or her assignees or agents, or
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against an unlicensed person or any of his or her assignees or
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agents, for any violation of this chapter or a rule adopted under
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this chapter. A penalty may be imposed for each day of continuing
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violation, but in no event may the penalty for any offense exceed
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$10,000. All amounts collected must be deposited with the Chief
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Financial Officer to the credit of the Division of Florida Land
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Sales, Condominiums, Timeshares, and Mobile Homes Trust Fund. If
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a broker, salesperson, or unlicensed person working for a broker,
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fails to pay the civil penalty, the division shall thereupon
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issue an order suspending the broker's license until such time as
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the civil penalty is paid or may pursue enforcement of the
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penalty in a court of competent jurisdiction. The order imposing
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the civil penalty or the order of suspension may not become
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effective until 20 days after the date of such order. Any action
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commenced by the division must be brought in the county in which
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the division has its executive offices or in the county where the
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violation occurred.
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(3) All fees must be deposited in the Division of Florida
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Land Sales, Condominiums, Timeshares, and Mobile Homes Trust Fund
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as provided by law.
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Section 9. Subsection (18) of section 380.05, Florida
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Statutes, is amended to read:
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380.05 Areas of critical state concern.--
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(18) Neither the designation of an area of critical state
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concern nor the adoption of any regulations for such an area
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shall in any way limit or modify the rights of any person to
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complete any development that was has been authorized by
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registration of a subdivision pursuant to former chapter 498 or
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former chapter 478, by recordation pursuant to local subdivision
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plat law, or by a building permit or other authorization to
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commence development on which there has been reliance and a
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change of position, and which registration or recordation was
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accomplished, or which permit or authorization was issued, prior
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to the approval under subsection (6), or the adoption under
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subsection (8), of land development regulations for the area of
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critical state concern. If a developer has by his or her actions
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in reliance on prior regulations obtained vested or other legal
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rights that in law would have prevented a local government from
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changing those regulations in a way adverse to the developer's
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interests, nothing in this chapter authorizes any governmental
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agency to abridge those rights.
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Section 10. Subsection (20) of section 380.06, Florida
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Statutes, is amended to read:
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380.06 Developments of regional impact.--
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(20) VESTED RIGHTS.--Nothing in this section shall limit or
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modify the rights of any person to complete any development that
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was has been authorized by registration of a subdivision pursuant
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to former chapter 498, by recordation pursuant to local
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subdivision plat law, or by a building permit or other
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authorization to commence development on which there has been
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reliance and a change of position and which registration or
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recordation was accomplished, or which permit or authorization
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was issued, prior to July 1, 1973. If a developer has, by his or
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her actions in reliance on prior regulations, obtained vested or
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other legal rights that in law would have prevented a local
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government from changing those regulations in a way adverse to
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the developer's interests, nothing in this chapter authorizes any
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governmental agency to abridge those rights.
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(a) For the purpose of determining the vesting of rights
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under this subsection, approval pursuant to local subdivision
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plat law, ordinances, or regulations of a subdivision plat by
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formal vote of a county or municipal governmental body having
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jurisdiction after August 1, 1967, and prior to July 1, 1973, is
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sufficient to vest all property rights for the purposes of this
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subsection; and no action in reliance on, or change of position
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concerning, such local governmental approval is required for
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vesting to take place. Anyone claiming vested rights under this
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paragraph must so notify the department in writing by January 1,
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1986. Such notification shall include information adequate to
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document the rights established by this subsection. When such
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notification requirements are met, in order for the vested rights
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authorized pursuant to this paragraph to remain valid after June
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30, 1990, development of the vested plan must be commenced prior
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to that date upon the property that the state land planning
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agency has determined to have acquired vested rights following
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the notification or in a binding letter of interpretation. When
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the notification requirements have not been met, the vested
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rights authorized by this paragraph shall expire June 30, 1986,
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unless development commenced prior to that date.
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(b) For the purpose of this act, the conveyance of, or the
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agreement to convey, property to the county, state, or local
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government as a prerequisite to zoning change approval shall be
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construed as an act of reliance to vest rights as determined
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under this subsection, provided such zoning change is actually
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granted by such government.
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Section 11. Paragraph (a) of subsection (4) of section
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380.0651, Florida Statutes, is amended to read:
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380.0651 Statewide guidelines and standards.--
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(4) Two or more developments, represented by their owners
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or developers to be separate developments, shall be aggregated
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and treated as a single development under this chapter when they
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are determined to be part of a unified plan of development and
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are physically proximate to one other.
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(a) The criteria of two of the following subparagraphs must
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be met in order for the state land planning agency to determine
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that there is a unified plan of development:
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1.a. The same person has retained or shared control of the
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developments;
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b. The same person has ownership or a significant legal or
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equitable interest in the developments; or
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c. There is common management of the developments
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controlling the form of physical development or disposition of
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parcels of the development.
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2. There is a reasonable closeness in time between the
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completion of 80 percent or less of one development and the
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submission to a governmental agency of a master plan or series of
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plans or drawings for the other development which is indicative
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of a common development effort.
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3. A master plan or series of plans or drawings exists
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covering the developments sought to be aggregated which have been
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submitted to a local general-purpose government, water management
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district, the Florida Department of Environmental Protection, or
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the Division of Florida Land Sales, Condominiums, Timeshares, and
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Mobile Homes for authorization to commence development. The
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existence or implementation of a utility's master utility plan
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required by the Public Service Commission or general-purpose
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local government or a master drainage plan shall not be the sole
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determinant of the existence of a master plan.
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4. The voluntary sharing of infrastructure that is
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indicative of a common development effort or is designated
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specifically to accommodate the developments sought to be
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aggregated, except that which was implemented because it was
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required by a local general-purpose government; water management
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district; the Department of Environmental Protection; the
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Division of Florida Land Sales, Condominiums, Timeshares, and
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Mobile Homes; or the Public Service Commission.
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5. There is a common advertising scheme or promotional plan
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in effect for the developments sought to be aggregated.
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Section 12. Paragraph (c) of subsection (4) of section
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381.0065, Florida Statutes, is amended to read:
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381.0065 Onsite sewage treatment and disposal systems;
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regulation.--
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(4) PERMITS; INSTALLATION; AND CONDITIONS.--A person may
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not construct, repair, modify, abandon, or operate an onsite
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sewage treatment and disposal system without first obtaining a
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permit approved by the department. The department may issue
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permits to carry out this section, but shall not make the
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issuance of such permits contingent upon prior approval by the
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Department of Environmental Protection, except that the issuance
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of a permit for work seaward of the coastal construction control
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line established under s. 161.053 shall be contingent upon
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receipt of any required coastal construction control line permit
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from the Department of Environmental Protection. A construction
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permit is valid for 18 months from the issuance date and may be
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extended by the department for one 90-day period under rules
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adopted by the department. A repair permit is valid for 90 days
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from the date of issuance. An operating permit must be obtained
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prior to the use of any aerobic treatment unit or if the
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establishment generates commercial waste. Buildings or
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establishments that use an aerobic treatment unit or generate
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commercial waste shall be inspected by the department at least
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annually to assure compliance with the terms of the operating
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permit. The operating permit for a commercial wastewater system
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is valid for 1 year from the date of issuance and must be renewed
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annually. The operating permit for an aerobic treatment unit is
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valid for 2 years from the date of issuance and must be renewed
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every 2 years. If all information pertaining to the siting,
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location, and installation conditions or repair of an onsite
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sewage treatment and disposal system remains the same, a
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construction or repair permit for the onsite sewage treatment and
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disposal system may be transferred to another person, if the
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transferee files, within 60 days after the transfer of ownership,
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an amended application providing all corrected information and
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proof of ownership of the property. There is no fee associated
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with the processing of this supplemental information. A person
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may not contract to construct, modify, alter, repair, service,
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abandon, or maintain any portion of an onsite sewage treatment
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and disposal system without being registered under part III of
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chapter 489. A property owner who personally performs
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construction, maintenance, or repairs to a system serving his or
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her own owner-occupied single-family residence is exempt from
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registration requirements for performing such construction,
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maintenance, or repairs on that residence, but is subject to all
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permitting requirements. A municipality or political subdivision
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of the state may not issue a building or plumbing permit for any
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building that requires the use of an onsite sewage treatment and
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disposal system unless the owner or builder has received a
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construction permit for such system from the department. A
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building or structure may not be occupied and a municipality,
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political subdivision, or any state or federal agency may not
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authorize occupancy until the department approves the final
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installation of the onsite sewage treatment and disposal system.
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A municipality or political subdivision of the state may not
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approve any change in occupancy or tenancy of a building that
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uses an onsite sewage treatment and disposal system until the
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department has reviewed the use of the system with the proposed
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change, approved the change, and amended the operating permit.
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(c) Notwithstanding the provisions of paragraphs (a) and
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(b), for subdivisions platted of record on or before October 1,
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1991, when a developer or other appropriate entity has previously
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made or makes provisions, including financial assurances or other
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commitments, acceptable to the Department of Health, that a
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central water system will be installed by a regulated public
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utility based on a density formula, private potable wells may be
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used with onsite sewage treatment and disposal systems until the
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agreed-upon densities are reached. The department may consider
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assurances filed with the Department of Business and Professional
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Regulation under chapter 498 in determining the adequacy of the
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financial assurance required by this paragraph. In a subdivision
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regulated by this paragraph, the average daily sewage flow may
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not exceed 2,500 gallons per acre per day. This section does not
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affect the validity of existing prior agreements. After October
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1, 1991, the exception provided under this paragraph is not
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available to a developer or other appropriate entity.
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Section 13. Subsections (8) through (12) of section 450.33,
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Florida Statutes, are amended to read:
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450.33 Duties of farm labor contractor.--Every farm labor
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contractor must:
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(8) File, within such time as the department may prescribe,
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a set of his or her fingerprints.
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(8)(9) Produce evidence to the department that each vehicle
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he or she uses for the transportation of employees complies with
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the requirements and specifications established in chapter 316,
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s. 316.622, or Pub. L. No. 93-518 as amended by Pub. L. No. 97-
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470 meeting Department of Transportation requirements or, in lieu
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thereof, bears a valid inspection sticker showing that the
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vehicle has passed the inspection in the state in which the
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vehicle is registered.
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(9)(10) Comply with all applicable statutes, rules, and
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regulations of the United States and of the State of Florida for
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the protection or benefit of labor, including, but not limited
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to, those providing for wages, hours, fair labor standards,
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social security, workers' compensation, unemployment
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compensation, child labor, and transportation.
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(10)(11) Maintain accurate daily field records for each
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employee actually paid by the farm labor contractor reflecting
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the hours worked for the farm labor contractor and, if paid by
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unit, the number of units harvested and the amount paid per unit.
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(11)(12) Clearly display on each vehicle used to transport
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migrant or seasonal farm workers a display sticker issued by the
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department, which states that the vehicle is authorized by the
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department to transport farm workers and the expiration date of
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the authorization.
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Section 14. Subsection (10) is added to section 455.203,
471
Florida Statutes, to read:
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455.203 Department; powers and duties.--The department, for
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the boards under its jurisdiction, shall:
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(10) Have authority to:
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(a) Close and terminate deficient license application files
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2 years after the board or the department notifies the applicant
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of the deficiency; and
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(b) Approve applications for professional licenses that
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meet all statutory and rule requirements for licensure.
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Section 15. Subsection (5) of section 455.116, Florida
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Statutes, is amended to read:
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455.116 Regulation trust funds.--The following trust funds
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shall be placed in the department:
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(5) Division of Florida Land Sales, Condominiums,
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Timeshares, and Mobile Homes Trust Fund.
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Section 16. Paragraph (b) of subsection (2) of section
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475.17, Florida Statutes, is amended to read:
488
475.17 Qualifications for practice.--
489
(2)
490
(b) A person may not be licensed as a real estate broker
491
unless, in addition to the other requirements of law, the person
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has held:
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1. An active real estate sales associate's license for at
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least 24 12 months during the preceding 5 years in the office of
495
one or more real estate brokers licensed in this state or any
496
other state, territory, or jurisdiction of the United States or
497
in any foreign national jurisdiction;
498
2. A current and valid real estate sales associate's
499
license for at least 24 12 months during the preceding 5 years in
500
the employ of a governmental agency for a salary and performing
501
the duties authorized in this part for real estate licensees; or
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3. A current and valid real estate broker's license for at
503
least 24 12 months during the preceding 5 years in any other
504
state, territory, or jurisdiction of the United States or in any
505
foreign national jurisdiction.
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This paragraph does not apply to a person employed as a real
508
estate investigator by the Division of Real Estate, provided the
509
person has been employed as a real estate investigator for at
510
least 24 months. The person must be currently employed as a real
511
estate investigator to sit for the real estate broker's
512
examination and have held a valid and current sales associate's
513
license for at least 12 months.
514
Section 17. Subsection (9) of section 475.451, Florida
515
Statutes, is amended to read:
516
475.451 Schools teaching real estate practice.--
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(9)(a) Each school permitholder of a proprietary real
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estate school, each chief administrative person of such an
519
institution, or each course sponsor shall deliver to the
520
department, in a format acceptable to the department, a copy of
521
the classroom course roster of courses that require satisfactory
522
completion of an examination no later than 30 days beyond the end
523
of the calendar month in which the course was completed.
524
(b) The course roster shall consist of the institution or
525
school name and permit number, if applicable, the instructor's
526
name and permit number, if applicable, course title, beginning
527
and ending dates of the course, number of course hours, course
528
location, if applicable, each student's full name and license
529
number, if applicable, each student's mailing address, and the
530
numerical grade each student achieved. The course roster shall
531
also include the signature of the school permitholder, the chief
532
administrative person, or the course sponsor.
533
Section 18. Section 475.455, Florida Statutes, is amended
534
to read:
535
475.455 Exchange of disciplinary information.--The
536
commission shall inform the Division of Florida Land Sales,
537
Condominiums, Timeshares, and Mobile Homes of the Department of
538
Business and Professional Regulation of any disciplinary action
539
the commission has taken against any of its licensees. The
540
division shall inform the commission of any disciplinary action
541
the division has taken against any broker or sales associate
542
registered with the division.
543
Section 19. Section 489.511, Florida Statutes, is amended
544
to read:
545
489.511 Certification; application; examinations;
546
endorsement.--
547
(1)(a) Any person who is at least 18 years of age may take
548
the certification examination.
549
(b) Any person desiring to be certified as a contractor
550
shall apply to the department in writing and must meet the
551
following criteria: to take the certification examination.
552
(2)(a) A person shall be entitled to take the certification
553
examination for the purpose of determining whether he or she is
554
qualified to engage in contracting throughout the state as a
555
contractor if the person:
556
1. Is at least 18 years of age;
557
1.2. Be Is of good moral character;
558
2. Pass the certification examination, achieving a passing
559
grade as established by board rule; and
560
3. Meet Meets eligibility requirements according to one of
561
the following criteria:
562
a. Has, within the 6 years immediately preceding the filing
563
of the application, at least 3 years' proven management
564
experience in the trade or education equivalent thereto, or a
565
combination thereof, but not more than one-half of such
566
experience may be educational equivalent;
567
b. Has, within the 8 years immediately preceding the filing
568
of the application, at least 4 years' experience as a supervisor
569
or contractor in the trade for which he or she is making
570
application;
571
c. Has, within the 12 years immediately preceding the
572
filing of the application, at least 6 years of comprehensive
573
training, technical education, or supervisory experience
574
associated with an electrical or alarm system contracting
575
business, or at least 6 years of technical experience in
576
electrical or alarm system work with the Armed Forces or a
577
governmental entity;
578
d. Has, within the 12 years immediately preceding the
579
filing of the application, been licensed for 3 years as a
580
professional engineer who is qualified by education, training, or
581
experience to practice electrical engineering; or
582
e. Has any combination of qualifications under sub-
583
subparagraphs a.-c. totaling 6 years of experience.
584
(c)(b) For purposes of this subsection, "supervisor" means
585
a person having the experience gained while having the general
586
duty of overseeing the technical duties of the trade, provided
587
that such experience is gained by a person who is able to perform
588
the technical duties of the trade without supervision.
589
(d)(c) For purposes of this subsection, at least 40 percent
590
of the work experience for an alarm system contractor I must be
591
in the types of fire alarm systems typically used in a commercial
592
setting.
593
(2)(3) The board may determine by rule the number of times
594
per year the applicant may take the examination and after three
595
unsuccessful attempts may On or after October 1, 1998, every
596
applicant who is qualified shall be allowed to take the
597
examination three times, notwithstanding the number of times the
598
applicant has previously failed the examination. If an applicant
599
fails the examination three times after October 1, 1998, the
600
board shall require the applicant to complete additional college-
601
level or technical education courses in the areas of deficiency,
602
as determined by the board, as a condition of future eligibility
603
to take the examination. The applicant must also submit a new
604
application that meets all certification requirements at the time
605
of its submission and must pay all appropriate fees.
606
(3)(4)(a) "Good moral character" means a personal history
607
of honesty, fairness, and respect for the rights of others and
608
for laws of this state and nation.
609
(b) The board may determine that an individual applying for
610
certification is ineligible to take the examination for failure
611
to satisfy the requirement of good moral character only if:
612
1. There is a substantial connection between the lack of
613
good moral character of the individual and the professional
614
responsibilities of a certified contractor; and
615
2. The finding by the board of lack of good moral character
616
is supported by clear and convincing evidence.
617
(c) When an individual is found to be unqualified for
618
certification examination because of a lack of good moral
619
character, the board shall furnish such individual a statement
620
containing the findings of the board, a complete record of the
621
evidence upon which the determination was based, and a notice of
622
the rights of the individual to a rehearing and appeal.
623
(4)(5) The board shall, by rule, designate those types of
624
specialty electrical or alarm system contractors who may be
625
certified under this part. The limit of the scope of work and
626
responsibility of a certified specialty contractor shall be
627
established by board rule. A certified specialty contractor
628
category exists as an optional statewide licensing category.
629
Qualification for certification in a specialty category created
630
by rule shall be the same as set forth in paragraph (1)(b)
631
(2)(a). The existence of a specialty category created by rule
632
does not itself create any licensing requirement; however,
633
neither does its optional nature remove any licensure requirement
634
established elsewhere in this part.
635
(5)(6) The board shall certify as qualified for
636
certification by endorsement any individual applying for
637
certification who:
638
(a) Meets the requirements for certification as set forth
639
in this section; has passed a national, regional, state, or
640
United States territorial licensing examination that is
641
substantially equivalent to the examination required by this
642
part; and has satisfied the requirements set forth in s. 489.521;
643
or
644
(b) Holds a valid license to practice electrical or alarm
645
system contracting issued by another state or territory of the
646
United States, if the criteria for issuance of such license was
647
substantially equivalent to the certification criteria that
648
existed in this state at the time the certificate was issued.
649
(6)(7) Upon the issuance of a certificate, any previously
650
issued registered licenses for the classification in which the
651
certification is issued are rendered void.
652
Section 20. Paragraph (b) of subsection (1) of section
653
489.515, Florida Statutes, is amended to read:
654
489.515 Issuance of certificates; registrations.--
655
(1)
656
(b) The board shall certify as qualified for certification
657
any person who satisfies the requirements of s. 489.511, who
658
successfully passes the certification examination administered by
659
the department, achieving a passing grade as established by board
660
rule, and who submits satisfactory evidence that he or she has
661
obtained both workers' compensation insurance or an acceptable
662
exemption certificate issued by the department and public
663
liability and property damage insurance for the health, safety,
664
and welfare of the public in amounts determined by rule of the
665
board, and furnishes evidence of financial responsibility,
666
credit, and business reputation of either himself or herself or
667
the business organization he or she desires to qualify.
668
Section 21. Section 494.008, Florida Statutes, is amended
669
to read:
670
494.008 Mortgages offered by land developers licensed
671
pursuant to the Florida Uniform Land Sales Practices Law;
672
requirements; prohibitions.--No mortgage loan which has a face
673
amount of $35,000 or less and is secured by vacant land
674
registered under the Florida Uniform Land Sales Practices Law,
675
chapter 498, shall be sold to a mortgagee, except a financial
676
institution, by any person unless all of the following
677
requirements are met:
678
(1) Each mortgage securing a note or other obligation sold
679
or offered for sale shall be eligible for a recordation as a
680
first mortgage.
681
(2) Each mortgage negotiated pursuant to this section must
682
include a mortgagee's title insurance policy or an opinion of
683
title, from an attorney who is licensed to practice law in this
684
state, on each parcel of land which is described in the mortgage.
685
The policy or opinion shall reflect that there are no other
686
mortgages on the property. A notice stating the priority of the
687
mortgage shall be placed on the face of each mortgage in an
688
amount over $35,000 issued pursuant to this section.
689
(3) Contracts to purchase a mortgage loan shall contain,
690
immediately above the purchaser's signature line, the statement
691
in 10-point boldfaced type: "This mortgage is secured by vacant
692
land subject to development at a future time." This statement
693
shall also be typed or printed in 10-point type on the face of
694
the note and mortgage sold.
695
(4) The most recent assessment for tax purposes made by the
696
county property appraiser of each parcel of land described in the
697
mortgage shall be furnished to each mortgagee.
698
(5) The mortgage broker shall record or cause to be
699
recorded all mortgages or other similar documents prior to
700
delivery of the note and mortgage to the mortgagee.
701
(6) All funds received by the mortgage broker pursuant to
702
this section shall promptly be deposited in the broker's trust
703
account where they shall remain until the note and mortgage are
704
fully executed and recorded.
705
(7) Willful failure to comply with any of the above
706
provisions shall subject the person to the penalties of s.
707
494.05.
708
Section 22. Section 498.009, Florida Statutes, is
709
renumbered as section 718.50152, Florida Statutes.
710
Section 23. Section 498.011, Florida Statutes, is
711
renumbered as section 718.50153, Florida Statutes, and amended to
712
read:
714
expenses to division employees.--The amount of per diem and
715
mileage and expense money paid to employees shall be as provided
716
in s. 112.061, except that the division shall establish by rule
717
the standards for reimbursement of actual verified expenses
718
incurred in connection with an on-site review inspection or
719
investigation of subdivided lands.
720
Section 24. Section 498.013, Florida Statutes, is
721
renumbered as section 718.50154, Florida Statutes.
722
Section 25. Section 498.057, Florida Statutes, is
723
renumbered as section 718.50155, Florida Statutes, and amended,
724
to read:
726
(1) In addition to the methods of service provided for in
727
the Florida Rules of Civil Procedure and the Florida Statutes,
728
service may be made and by delivering a copy of the process to
729
the director of the division, which shall be binding upon the
730
defendant or respondent if:
731
(a) The division plaintiff, which is acting as the
732
petitioner or plaintiff may be the division, immediately sends a
733
copy of the process and of the pleading by certified mail to the
734
defendant or respondent at his or her last known address;, and
735
(b) The division plaintiff files an affidavit of compliance
736
with this section on or before the return date of the process or
737
within the time set by the court.
738
(2) If any person, including any nonresident of this state,
739
allegedly engages in conduct prohibited by this chapter, or any
740
rule or order of the division, and has not filed a consent to
741
service of process, and personal jurisdiction over him or her
742
cannot otherwise be obtained in this state, the director shall be
743
authorized to receive service of process in any noncriminal
744
proceeding against that person or his or her successor which
745
grows out of the conduct and which is brought by the division
746
under this chapter or any rule or order of the division. The
747
process shall have the same force and validity as if personally
748
served. Notice shall be given as provided in subsection (1).
754
Section 27. Section 509.512, Florida Statutes, is amended
755
to read:
756
509.512 Timeshare plan developer and exchange company
758
of a timeshare plan or an exchange company approved by the
759
Division of Florida Land Sales, Condominiums, Timeshares, and
760
Mobile Homes pursuant to chapter 721, but only to the extent that
761
the developer or exchange company engages in conduct regulated
762
under chapter 721.
763
Section 28. Subsection (2) of section 517.301, Florida
764
Statutes, is amended to read:
765
517.301 Fraudulent transactions; falsification or
766
concealment of facts.--
768
section, the term "investment" means any commitment of money or
769
property principally induced by a representation that an economic
770
benefit may be derived from such commitment, except that the term
771
"investment" does not include a commitment of money or property
772
for:
773
(a) The purchase of a business opportunity, business
774
enterprise, or real property through a person licensed under
775
chapter 475 or registered under chapter 718 498; or
776
(b) The purchase of tangible personal property through a
777
person not engaged in telephone solicitation, where said property
778
is offered and sold in accordance with the following conditions:
779
1. There are no specific representations or guarantees made
780
by the offeror or seller as to the economic benefit to be derived
781
from the purchase;
782
2. The tangible property is delivered to the purchaser
783
within 30 days after sale, except that such 30-day period may be
784
extended by the office if market conditions so warrant; and
785
3. The seller has offered the purchaser a full refund
786
policy in writing, exercisable by the purchaser within 10 days of
787
the date of delivery of such tangible personal property, except
788
that the amount of such refund may not in no event shall exceed
789
the bid price in effect at the time the property is returned to
790
the seller. If the applicable sellers' market is closed at the
791
time the property is returned to the seller for a refund, the
792
amount of such refund shall be based on the bid price for such
793
property at the next opening of such market.
794
Section 29. Subsection (4) of section 548.0065, Florida
795
Statutes, is amended to read:
796
548.0065 Amateur matches; sanctioning and supervision;
797
health and safety standards; compliance checks; continuation,
798
suspension, and revocation of sanctioning approval.--
799
(4) Any member of the commission or the executive director
800
of the commission may suspend the approval of an amateur
801
sanctioning organization for failure to supervise amateur matches
802
or to enforce the approved health and safety standards required
803
under this chapter, provided that the suspension complies with
804
the procedures for summary suspensions in s. 120.60(6). At any
805
amateur boxing, or kickboxing, or mixed martial arts contest, any
806
member of the commission or a representative of the commission
807
may immediately suspend one or more matches in an event whenever
808
it appears that the match or matches violate the health and
809
safety standards established by rule as required by this chapter.
810
A law enforcement officer may assist any member of the commission
811
or a representative of the commission to enforce an order to stop
812
a contest if called upon to do so by a member of the commission
813
or a representative of the commission.
814
Section 30. Subsections (2), (3), and (4) of section
815
548.008, Florida Statutes, are amended to read:
816
548.008 Prohibited competitions.--
817
(2) No amateur mixed martial arts match may be held in this
818
state.
819
(2)(3) No professional match may be held in this state
820
unless it meets the requirements for holding the match as
821
provided in this chapter and the rules adopted by the commission.
822
(3)(4)(a) Any person participating in a match prohibited
823
under this section, knowing the match to be prohibited, commits a
824
misdemeanor of the second degree, punishable as provided in s.
826
(b) Any person holding, promoting, or sponsoring a match
827
prohibited under this section commits a felony of the third
829
830
Section 31. Subsection (1) of section 548.041, Florida
831
Statutes, is amended to read:
832
548.041 Age, condition, and suspension of participants.--
833
(1) A person may shall not be licensed as a participant,
834
and the license of a any participant shall be suspended or
835
revoked, if such person:
836
(a) Is under the age of 18;
837
(b) Has participated in a match in this state which was not
838
sanctioned by the commission or by a Native American commission
839
properly constituted under federal law; or
840
(c) Does not meet certain health and medical examination
841
conditions as required by rule of the commission;.
842
(d) Has not competed in 10 amateur boxing events prior to
843
licensure; or
844
(e) Has not competed in 5 amateur mixed martial arts events
845
prior to licensure.
846
Section 32. Subsection (1) of section 559.935, Florida
847
Statutes, is amended to read:
848
559.935 Exemptions.--
849
(1) This part does not apply to:
850
(a) A bona fide employee of a seller of travel who is
851
engaged solely in the business of her or his employer;
852
(b) Any direct common carrier of passengers or property
853
regulated by an agency of the Federal Government or employees of
854
such carrier when engaged solely in the transportation business
855
of the carrier as identified in the carrier's certificate;
856
(c) An intrastate common carrier of passengers or property
857
selling only transportation as defined in the applicable state or
858
local registration or certification, or employees of such carrier
859
when engaged solely in the transportation business of the
860
carrier;
861
(d) Hotels, motels, or other places of public accommodation
862
selling public accommodations, or employees of such hotels,
863
motels, or other places of public accommodation, when engaged
864
solely in making arrangements for lodging, accommodations, or
865
sightseeing tours within the state, or taking reservations for
866
the traveler with times, dates, locations, and accommodations
867
certain at the time the reservations are made, provided that
868
hotels and motels registered with the Department of Business and
869
Professional Regulation pursuant to chapter 509 are excluded from
870
the provisions of this chapter;
871
(e) Persons involved solely in the rental, leasing, or sale
872
of residential property;
873
(f) Persons involved solely in the rental, leasing, or sale
874
of transportation vehicles;
875
(g) Persons who make travel arrangements for themselves;
876
for their employees or agents; for distributors, franchisees, or
877
dealers of the persons' products or services; for entities which
878
are financially related to the persons; or for the employees or
879
agents of the distributor, franchisee, or dealer or financially
880
related entity;
881
(h) A developer of a timeshare plan or an exchange company
882
approved by the Division of Florida Land Sales, Condominiums,
883
Timeshares, and Mobile Homes pursuant to chapter 721, but only to
884
the extent that the developer or exchange company engages in
885
conduct regulated under chapter 721; or
886
(i) Persons or entities engaged solely in offering diving
887
services, including classes and sales or rentals of equipment,
888
when engaged in making any prearranged travel-related or tourist-
889
related services in conjunction with a primarily dive-related
890
event.
891
Section 33. Subsection (17) of section 718.103, Florida
892
Statutes, is amended to read:
893
718.103 Definitions.--As used in this chapter, the term:
894
(17) "Division" means the Division of Florida Land Sales,
895
Condominiums, Timeshares, and Mobile Homes of the Department of
896
Business and Professional Regulation.
897
Section 34. Paragraph (c) of subsection (4) of section
898
718.105, Florida Statutes, is amended to read:
899
718.105 Recording of declaration.--
900
(4)
901
(c) If the sum of money held by the clerk has not been paid
902
to the developer or association as provided in paragraph (b)
903
within by 3 years after the date the declaration was originally
904
recorded, the clerk in his or her discretion may notify, in
905
writing, the registered agent of the association that the sum is
906
still available and the purpose for which it was deposited. If
907
the association does not record the certificate within 90 days
908
after the clerk has given the notice, the clerk may disburse the
909
money to the developer. If the developer cannot be located, the
910
clerk shall disburse the money to the Division of Florida Land
911
Sales, Condominiums, Timeshares, and Mobile Homes for deposit in
912
the Division of Florida Land Sales, Condominiums, Timeshares, and
913
Mobile Homes Trust Fund.
914
Section 35. Subsection (4) of section 718.1255, Florida
915
Statutes, is amended to read:
916
718.1255 Alternative dispute resolution; voluntary
917
mediation; mandatory nonbinding arbitration; legislative
918
findings.--
919
(4) MANDATORY NONBINDING ARBITRATION AND MEDIATION OF
920
DISPUTES.--The Division of Florida Land Sales, Condominiums,
921
Timeshares, and Mobile Homes of the Department of Business and
922
Professional Regulation shall employ full-time attorneys to act
923
as arbitrators to conduct the arbitration hearings provided by
924
this chapter. The division may also certify attorneys who are not
925
employed by the division to act as arbitrators to conduct the
926
arbitration hearings provided by this section. No person may be
927
employed by the department as a full-time arbitrator unless he or
928
she is a member in good standing of The Florida Bar. The
929
department shall adopt promulgate rules of procedure to govern
930
such arbitration hearings including mediation incident thereto.
931
The decision of an arbitrator shall be final; however, such a
932
decision shall not be deemed final agency action. Nothing in this
933
provision shall be construed to foreclose parties from proceeding
934
in a trial de novo unless the parties have agreed that the
935
arbitration is binding. If such judicial proceedings are
936
initiated, the final decision of the arbitrator shall be
937
admissible in evidence in the trial de novo.
938
(a) Prior to the institution of court litigation, a party
939
to a dispute shall petition the division for nonbinding
940
arbitration. The petition must be accompanied by a filing fee in
941
the amount of $50. Filing fees collected under this section must
942
be used to defray the expenses of the alternative dispute
943
resolution program.
944
(b) The petition must recite, and have attached thereto,
945
supporting proof that the petitioner gave the respondents:
946
1. Advance written notice of the specific nature of the
947
dispute;
948
2. A demand for relief, and a reasonable opportunity to
949
comply or to provide the relief; and
950
3. Notice of the intention to file an arbitration petition
951
or other legal action in the absence of a resolution of the
952
dispute.
953
954
Failure to include the allegations or proof of compliance with
955
these prerequisites requires dismissal of the petition without
956
prejudice.
957
(c) Upon receipt, the petition shall be promptly reviewed
958
by the division to determine the existence of a dispute and
959
compliance with the requirements of paragraphs (a) and (b). If
960
emergency relief is required and is not available through
961
arbitration, a motion to stay the arbitration may be filed. The
962
motion must be accompanied by a verified petition alleging facts
963
that, if proven, would support entry of a temporary injunction,
964
and if an appropriate motion and supporting papers are filed, the
965
division may abate the arbitration pending a court hearing and
966
disposition of a motion for temporary injunction.
967
(d) Upon determination by the division that a dispute
968
exists and that the petition substantially meets the requirements
969
of paragraphs (a) and (b) and any other applicable rules, a copy
970
of the petition shall forthwith be served by the division upon
971
all respondents.
972
(e) Either Before or after the filing of the respondents'
973
answer to the petition, any party may request that the arbitrator
974
refer the case to mediation under this section and any rules
975
adopted by the division. Upon receipt of a request for mediation,
976
the division shall promptly contact the parties to determine if
977
there is agreement that mediation would be appropriate. If all
978
parties agree, the dispute must be referred to mediation.
979
Notwithstanding a lack of an agreement by all parties, the
980
arbitrator may refer a dispute to mediation at any time.
981
(f) Upon referral of a case to mediation, the parties must
982
select a mutually acceptable mediator. To assist in the
983
selection, the arbitrator shall provide the parties with a list
984
of both volunteer and paid mediators that have been certified by
985
the division under s. 718.501. If the parties are unable to agree
986
on a mediator within the time allowed by the arbitrator, the
987
arbitrator shall appoint a mediator from the list of certified
988
mediators. If a case is referred to mediation, the parties shall
989
attend a mediation conference, as scheduled by the parties and
990
the mediator. If any party fails to attend a duly noticed
991
mediation conference, without the permission or approval of the
992
arbitrator or mediator, the arbitrator must impose sanctions
993
against the party, including the striking of any pleadings filed,
994
the entry of an order of dismissal or default if appropriate, and
995
the award of costs and attorneys' fees incurred by the other
996
parties. Unless otherwise agreed to by the parties or as provided
997
by order of the arbitrator, a party is deemed to have appeared at
998
a mediation conference by the physical presence of the party or
999
its representative having full authority to settle without
1000
further consultation, provided that an association may comply by
1001
having one or more representatives present with full authority to
1002
negotiate a settlement and recommend that the board of
1003
administration ratify and approve such a settlement within 5 days
1004
from the date of the mediation conference. The parties shall
1005
share equally the expense of mediation, unless they agree
1006
otherwise.
1007
(g) The purpose of mediation as provided for by this
1008
section is to present the parties with an opportunity to resolve
1009
the underlying dispute in good faith, and with a minimum
1010
expenditure of time and resources.
1011
(h) Mediation proceedings must generally be conducted in
1012
accordance with the Florida Rules of Civil Procedure, and these
1013
proceedings are privileged and confidential to the same extent as
1014
court-ordered mediation. Persons who are not parties to the
1015
dispute are not allowed to attend the mediation conference
1016
without the consent of all parties, with the exception of counsel
1017
for the parties and corporate representatives designated to
1018
appear for a party. If the mediator declares an impasse after a
1019
mediation conference has been held, the arbitration proceeding
1020
terminates, unless all parties agree in writing to continue the
1021
arbitration proceeding, in which case the arbitrator's decision
1022
shall be either binding or nonbinding, as agreed upon by the
1023
parties; in the arbitration proceeding, the arbitrator shall not
1024
consider any evidence relating to the unsuccessful mediation
1025
except in a proceeding to impose sanctions for failure to appear
1026
at the mediation conference. If the parties do not agree to
1027
continue arbitration, the arbitrator shall enter an order of
1028
dismissal, and either party may institute a suit in a court of
1029
competent jurisdiction. The parties may seek to recover any costs
1030
and attorneys' fees incurred in connection with arbitration and
1031
mediation proceedings under this section as part of the costs and
1032
fees that may be recovered by the prevailing party in any
1033
subsequent litigation.
1034
(i) Arbitration shall be conducted according to rules
1035
adopted promulgated by the division. The filing of a petition for
1036
arbitration shall toll the applicable statute of limitations.
1037
(j) At the request of any party to the arbitration, the
1038
such arbitrator shall issue subpoenas for the attendance of
1039
witnesses and the production of books, records, documents, and
1040
other evidence and any party on whose behalf a subpoena is issued
1041
may apply to the court for orders compelling such attendance and
1042
production. Subpoenas shall be served and shall be enforceable in
1043
the manner provided by the Florida Rules of Civil Procedure.
1044
Discovery may, in the discretion of the arbitrator, be permitted
1045
in the manner provided by the Florida Rules of Civil Procedure.
1046
Rules adopted by the division may authorize any reasonable
1047
sanctions except contempt for a violation of the arbitration
1048
procedural rules of the division or for the failure of a party to
1049
comply with a reasonable nonfinal order issued by an arbitrator
1050
which is not under judicial review.
1051
(k) The arbitration decision shall be presented to the
1052
parties in writing. An arbitration decision is final in those
1053
disputes in which the parties have agreed to be bound. An
1054
arbitration decision is also final if a complaint for a trial de
1055
novo is not filed in a court of competent jurisdiction in which
1056
the condominium is located within 30 days. The right to file for
1057
a trial de novo entitles the parties to file a complaint in the
1058
appropriate trial court for a judicial resolution of the dispute.
1059
The prevailing party in an arbitration proceeding shall be
1060
awarded the costs of the arbitration and reasonable attorney's
1061
fees in an amount determined by the arbitrator. Such an award
1062
shall include the costs and reasonable attorney's fees incurred
1063
in the arbitration proceeding as well as the costs and reasonable
1064
attorney's fees incurred in preparing for and attending any
1065
scheduled mediation.
1066
(l) The party who files a complaint for a trial de novo
1067
shall be assessed the other party's arbitration costs, court
1068
costs, and other reasonable costs, including attorney's fees,
1069
investigation expenses, and expenses for expert or other
1070
testimony or evidence incurred after the arbitration hearing if
1071
the judgment upon the trial de novo is not more favorable than
1072
the arbitration decision. If the judgment is more favorable, the
1073
party who filed a complaint for trial de novo shall be awarded
1074
reasonable court costs and attorney's fees.
1075
(m) Any party to an arbitration proceeding may enforce an
1076
arbitration award by filing a petition in a court of competent
1077
jurisdiction in which the condominium is located. A petition may
1078
not be granted unless the time for appeal by the filing of a
1079
complaint for trial de novo has expired. If a complaint for a
1080
trial de novo has been filed, a petition may not be granted with
1081
respect to an arbitration award that has been stayed. If the
1082
petition for enforcement is granted, the petitioner shall recover
1083
reasonable attorney's fees and costs incurred in enforcing the
1084
arbitration award. A mediation settlement may also be enforced
1085
through the county or circuit court, as applicable, and any costs
1086
and fees incurred in the enforcement of a settlement agreement
1087
reached at mediation must be awarded to the prevailing party in
1088
any enforcement action.
1089
Section 36. Section 718.501, Florida Statutes, is amended
1090
to read:
1091
718.501 Powers and duties of Division of Florida Land
1092
Sales, Condominiums, Timeshares, and Mobile Homes.--
1093
(1) The Division of Florida Land Sales, Condominiums,
1094
Timeshares, and Mobile Homes of the Department of Business and
1095
Professional Regulation, referred to as the "division" in this
1096
part, in addition to other powers and duties prescribed by
1097
chapter 498, has the power to enforce and ensure compliance with
1098
the provisions of this chapter and rules promulgated pursuant
1099
hereto relating to the development, construction, sale, lease,
1100
ownership, operation, and management of residential condominium
1101
units. In performing its duties, the division has the following
1102
powers and duties:
1103
(a)1. The division may make necessary public or private
1104
investigations within or outside this state to determine whether
1105
any person has violated this chapter or any rule or order
1106
hereunder, to aid in the enforcement of this chapter, or to aid
1107
in the adoption of rules or forms hereunder.
1108
2. The division may submit any official written report,
1109
worksheet, or other related paper, or a duly certified copy
1110
thereof, compiled, prepared, drafted, or otherwise made by and
1111
duly authenticated by a financial examiner or analyst to be
1112
admitted as competent evidence in any hearing in which the
1113
financial examiner or analyst is available for cross-examination
1114
and attests under oath that such documents were prepared as a
1115
result of an examination or inspection conducted pursuant to this
1116
chapter.
1117
(b) The division may require or permit any person to file a
1118
statement in writing, under oath or otherwise, as the division
1119
determines, as to the facts and circumstances concerning a matter
1120
to be investigated.
1121
(c) For the purpose of any investigation under this
1122
chapter, the division director or any officer or employee
1123
designated by the division director may administer oaths or
1124
affirmations, subpoena witnesses and compel their attendance,
1125
take evidence, and require the production of any matter which is
1126
relevant to the investigation, including the existence,
1127
description, nature, custody, condition, and location of any
1128
books, documents, or other tangible things and the identity and
1129
location of persons having knowledge of relevant facts or any
1130
other matter reasonably calculated to lead to the discovery of
1131
material evidence. Upon the failure by a person to obey a
1132
subpoena or to answer questions propounded by the investigating
1133
officer and upon reasonable notice to all persons affected
1134
thereby, the division may apply to the circuit court for an order
1135
compelling compliance.
1136
(d) Notwithstanding any remedies available to unit owners
1137
and associations, if the division has reasonable cause to believe
1138
that a violation of any provision of this chapter or related rule
1139
promulgated pursuant hereto has occurred, the division may
1140
institute enforcement proceedings in its own name against any
1141
developer, association, officer, or member of the board of
1142
administration, or its assignees or agents, as follows:
1143
1. The division may permit a person whose conduct or
1144
actions may be under investigation to waive formal proceedings
1145
and enter into a consent proceeding whereby orders, rules, or
1146
letters of censure or warning, whether formal or informal, may be
1147
entered against the person.
1148
2. The division may issue an order requiring the developer,
1149
association, officer, or member of the board of administration,
1150
or its assignees or agents, to cease and desist from the unlawful
1151
practice and take such affirmative action as in the judgment of
1152
the division will carry out the purposes of this chapter. Such
1153
affirmative action may include, but is not limited to, an order
1154
requiring a developer to pay moneys determined to be owed to a
1155
condominium association. If the division finds that a developer,
1156
association, officer, or member of the board of administration,
1157
or its assignees or agents, is violating or is about to violate
1158
any provision of this chapter, any rule adopted or order issued
1159
by the division, or any written agreement entered into with the
1160
division, and presents an immediate danger to the public
1161
requiring an immediate final order, it may issue an emergency
1162
cease and desist order reciting with particularity the facts
1163
underlying such findings. The emergency cease and desist order is
1164
effective for 90 days. If the division begins nonemergency cease
1165
and desist proceedings, the emergency cease and desist order
1166
remains effective until the conclusion of the proceedings under
1168
3. The division may bring an action in circuit court on
1169
behalf of a class of unit owners, lessees, or purchasers for
1170
declaratory relief, injunctive relief, or restitution.
1171
4. The division may petition the court for the appointment
1172
of a receiver or conservator. If appointed, the receiver or
1173
conservator may take action to implement the the court order to
1174
ensure the performance of the order and to remedy any breach
1175
thereof. In addition to all other means provided by law for the
1176
enforcement of an injunction or temporary restraining order, the
1177
circuit court may impound or sequester the property of a party
1178
defendant, including books, papers, documents, and related
1179
records, and allow the examination and use of the property by the
1180
division and a court-appointed receiver or conservator.
1181
5. The division may apply to the circuit court for an order
1182
of restitution whereby the defendant in an action brought
1183
pursuant to subparagraph 4. shall be ordered to make restitution
1184
of those sums shown by the division to have been obtained by the
1185
defendant in violation of this chapter. Such restitution shall,
1186
at the option of the court, be payable to the conservator or
1187
receiver appointed pursuant to subparagraph 4. or directly to the
1188
persons whose funds or assets were obtained in violation of this
1189
chapter.
1190
6.4. The division may impose a civil penalty against a
1191
developer or association, or its assignee or agent, for any
1192
violation of this chapter or a rule adopted under this chapter
1193
promulgated pursuant hereto. The division may impose a civil
1194
penalty individually against any officer or board member who
1195
willfully and knowingly violates a provision of this chapter,
1196
adopted a rule adopted pursuant hereto, or a final order of the
1197
division. The term "willfully and knowingly" means that the
1198
division informed the officer or board member that his or her
1199
action or intended action violates this chapter, a rule adopted
1200
under this chapter, or a final order of the division and that the
1201
officer or board member refused to comply with the requirements
1202
of this chapter, a rule adopted under this chapter, or a final
1203
order of the division. The division, prior to initiating formal
1204
agency action under chapter 120, shall afford the officer or
1205
board member an opportunity to voluntarily comply with this
1206
chapter, a rule adopted under this chapter, or a final order of
1207
the division. An officer or board member who complies within 10
1208
days is not subject to a civil penalty. A penalty may be imposed
1209
on the basis of each day of continuing violation, but in no event
1210
shall the penalty for any offense exceed $5,000. By January 1,
1211
1998, the division shall adopt, by rule, penalty guidelines
1212
applicable to possible violations or to categories of violations
1213
of this chapter or rules adopted by the division. The guidelines
1214
must specify a meaningful range of civil penalties for each such
1215
violation of the statute and rules and must be based upon the
1216
harm caused by the violation, the repetition of the violation,
1217
and upon such other factors deemed relevant by the division. For
1218
example, the division may consider whether the violations were
1219
committed by a developer or owner-controlled association, the
1220
size of the association, and other factors. The guidelines must
1221
designate the possible mitigating or aggravating circumstances
1222
that justify a departure from the range of penalties provided by
1223
the rules. It is the legislative intent that minor violations be
1224
distinguished from those which endanger the health, safety, or
1225
welfare of the condominium residents or other persons and that
1226
such guidelines provide reasonable and meaningful notice to the
1227
public of likely penalties that may be imposed for proscribed
1228
conduct. This subsection does not limit the ability of the
1229
division to informally dispose of administrative actions or
1230
complaints by stipulation, agreed settlement, or consent order.
1231
All amounts collected shall be deposited with the Chief Financial
1232
Officer to the credit of the Division of Florida Land Sales,
1233
Condominiums, Timeshares, and Mobile Homes Trust Fund. If a
1234
developer fails to pay the civil penalty, the division shall
1235
thereupon issue an order directing that such developer cease and
1236
desist from further operation until such time as the civil
1237
penalty is paid or may pursue enforcement of the penalty in a
1238
court of competent jurisdiction. If an association fails to pay
1239
the civil penalty, the division shall thereupon pursue
1240
enforcement in a court of competent jurisdiction, and the order
1241
imposing the civil penalty or the cease and desist order will not
1242
become effective until 20 days after the date of such order. Any
1243
action commenced by the division shall be brought in the county
1244
in which the division has its executive offices or in the county
1245
where the violation occurred.
1246
7. In addition to subparagraph 6., the division may seek
1247
the imposition of a civil penalty through the circuit court for
1248
any violation for which the division may issue a notice to show
1249
cause under paragraph (q). The civil penalty shall be at least
1250
$500 but no more than $5,000 for each violation. The court may
1251
also award to the prevailing party court costs and reasonable
1252
attorney's fees and, if the division prevails, may also award
1253
reasonable costs of investigation.
1254
(e) The division may is authorized to prepare and
1255
disseminate a prospectus and other information to assist
1256
prospective owners, purchasers, lessees, and developers of
1257
residential condominiums in assessing the rights, privileges, and
1258
duties pertaining thereto.
1259
(f) The division has authority to adopt rules pursuant to
1261
of this chapter.
1262
(g) The division shall establish procedures for providing
1263
notice to an association when the division is considering the
1264
issuance of a declaratory statement with respect to the
1265
declaration of condominium or any related document governing in
1266
such condominium community.
1267
(h) The division shall furnish each association which pays
1268
the fees required by paragraph (2)(a) a copy of this act,
1269
subsequent changes to this act on an annual basis, an amended
1270
version of this act as it becomes available from the Secretary of
1271
State's office on a biennial basis, and the rules adopted
1272
promulgated pursuant thereto on an annual basis.
1273
(i) The division shall annually provide each association
1274
with a summary of declaratory statements and formal legal
1275
opinions relating to the operations of condominiums which were
1276
rendered by the division during the previous year.
1277
(j) The division shall provide training programs for
1278
condominium association board members and unit owners.
1279
(k) The division shall maintain a toll-free telephone
1280
number accessible to condominium unit owners.
1281
(l) The division shall develop a program to certify both
1282
volunteer and paid mediators to provide mediation of condominium
1283
disputes. The division shall provide, upon request, a list of
1284
such mediators to any association, unit owner, or other
1285
participant in arbitration proceedings under s. 718.1255
1286
requesting a copy of the list. The division shall include on the
1287
list of volunteer mediators only the names of persons who have
1288
received at least 20 hours of training in mediation techniques or
1289
who have mediated at least 20 disputes. In order to become
1290
initially certified by the division, paid mediators must be
1291
certified by the Supreme Court to mediate court cases in either
1292
county or circuit courts. However, the division may adopt, by
1293
rule, additional factors for the certification of paid mediators,
1294
which factors must be related to experience, education, or
1295
background. Any person initially certified as a paid mediator by
1296
the division must, in order to continue to be certified, comply
1297
with the factors or requirements imposed by rules adopted by the
1298
division.
1299
(m) When a complaint is made, the division shall conduct
1300
its inquiry with due regard to the interests of the affected
1301
parties. Within 30 days after receipt of a complaint, the
1302
division shall acknowledge the complaint in writing and notify
1303
the complainant whether the complaint is within the jurisdiction
1304
of the division and whether additional information is needed by
1305
the division from the complainant. The division shall conduct its
1306
investigation and shall, within 90 days after receipt of the
1307
original complaint or of timely requested additional information,
1308
take action upon the complaint. However, the failure to complete
1309
the investigation within 90 days does not prevent the division
1310
from continuing the investigation, accepting or considering
1311
evidence obtained or received after 90 days, or taking
1312
administrative action if reasonable cause exists to believe that
1313
a violation of this chapter or a rule of the division has
1314
occurred. If an investigation is not completed within the time
1315
limits established in this paragraph, the division shall, on a
1316
monthly basis, notify the complainant in writing of the status of
1317
the investigation. When reporting its action to the complainant,
1318
the division shall inform the complainant of any right to a
1320
(n) The division may:
1321
1. Contract with agencies in this state or other
1322
jurisdictions to perform investigative functions; or
1323
2. Accept grants-in-aid from any source.
1324
(o) The division shall cooperate with similar agencies in
1325
other jurisdictions to establish uniform filing procedures and
1326
forms, public offering statements, advertising standards, and
1327
rules and common administrative practices.
1328
(p) The division shall consider notice to a developer to be
1329
complete when it is delivered to the developer's address
1330
currently on file with the division.
1331
(q) In addition to its enforcement authority, the division
1332
may issue a notice to show cause, which shall provide for a
1333
hearing, upon written request, in accordance with chapter 120.
1334
(2)(a) Effective January 1, 1992, Each condominium
1335
association which operates more than two units shall pay to the
1336
division an annual fee in the amount of $4 for each residential
1337
unit in condominiums operated by the association. If the fee is
1338
not paid by March 1, then the association shall be assessed a
1339
penalty of 10 percent of the amount due, and the association will
1340
not have standing to maintain or defend any action in the courts
1341
of this state until the amount due, plus any penalty, is paid.
1342
(b) All fees shall be deposited in the Division of Florida
1343
Land Sales, Condominiums, Timeshares, and Mobile Homes Trust Fund
1344
as provided by law.
1345
Section 37. Subsection (1) of section 718.5011, Florida
1346
Statutes, is amended to read:
1347
718.5011 Ombudsman; appointment; administration.--
1348
(1) There is created an Office of the Condominium
1349
Ombudsman, to be located for administrative purposes within the
1350
Division of Florida Land Sales, Condominiums, Timeshares, and
1351
Mobile Homes. The functions of the office shall be funded by the
1352
Division of Florida Land Sales, Condominiums, Timeshares, and
1353
Mobile Homes Trust Fund. The ombudsman shall be a bureau chief of
1354
the division, and the office shall be set within the division in
1355
the same manner as any other bureau is staffed and funded.
1356
Section 38. Paragraph (a) of subsection (2) of section
1357
718.502, Florida Statutes, is amended to read:
1358
718.502 Filing prior to sale or lease.--
1359
(2)(a) Prior to filing as required by subsection (1), and
1360
prior to acquiring an ownership, leasehold, or contractual
1361
interest in the land upon which the condominium is to be
1362
developed, a developer shall not offer a contract for purchase of
1363
a unit or lease of a unit for more than 5 years. However, the
1364
developer may accept deposits for reservations upon the approval
1365
of a fully executed escrow agreement and reservation agreement
1366
form properly filed with the Division of Florida Land Sales,
1367
Condominiums, Timeshares, and Mobile Homes. Each filing of a
1368
proposed reservation program shall be accompanied by a filing fee
1369
of $250. Reservations shall not be taken on a proposed
1370
condominium unless the developer has an ownership, leasehold, or
1371
contractual interest in the land upon which the condominium is to
1372
be developed. The division shall notify the developer within 20
1373
days of receipt of the reservation filing of any deficiencies
1374
contained therein. Such notification shall not preclude the
1375
determination of reservation filing deficiencies at a later date,
1376
nor shall it relieve the developer of any responsibility under
1377
the law. The escrow agreement and the reservation agreement form
1378
shall include a statement of the right of the prospective
1379
purchaser to an immediate unqualified refund of the reservation
1380
deposit moneys upon written request to the escrow agent by the
1381
prospective purchaser or the developer.
1382
Section 39. Section 718.504, Florida Statutes, is amended
1383
to read:
1384
718.504 Prospectus or offering circular.--Every developer
1385
of a residential condominium which contains more than 20
1386
residential units, or which is part of a group of residential
1387
condominiums which will be served by property to be used in
1388
common by unit owners of more than 20 residential units, shall
1389
prepare a prospectus or offering circular and file it with the
1390
Division of Florida Land Sales, Condominiums, Timeshares, and
1391
Mobile Homes prior to entering into an enforceable contract of
1392
purchase and sale of any unit or lease of a unit for more than 5
1393
years and shall furnish a copy of the prospectus or offering
1394
circular to each buyer. In addition to the prospectus or offering
1395
circular, each buyer shall be furnished a separate page entitled
1396
"Frequently Asked Questions and Answers," which shall be in
1397
accordance with a format approved by the division and a copy of
1398
the financial information required by s. 718.111. This page
1399
shall, in readable language, inform prospective purchasers
1400
regarding their voting rights and unit use restrictions,
1401
including restrictions on the leasing of a unit; shall indicate
1402
whether and in what amount the unit owners or the association is
1403
obligated to pay rent or land use fees for recreational or other
1404
commonly used facilities; shall contain a statement identifying
1405
that amount of assessment which, pursuant to the budget, would be
1406
levied upon each unit type, exclusive of any special assessments,
1407
and which shall further identify the basis upon which assessments
1408
are levied, whether monthly, quarterly, or otherwise; shall state
1409
and identify any court cases in which the association is
1410
currently a party of record in which the association may face
1411
liability in excess of $100,000; and which shall further state
1412
whether membership in a recreational facilities association is
1413
mandatory, and if so, shall identify the fees currently charged
1414
per unit type. The division shall by rule require such other
1415
disclosure as in its judgment will assist prospective purchasers.
1416
The prospectus or offering circular may include more than one
1417
condominium, although not all such units are being offered for
1418
sale as of the date of the prospectus or offering circular. The
1419
prospectus or offering circular must contain the following
1420
information:
1421
(1) The front cover or the first page must contain only:
1422
(a) The name of the condominium.
1423
(b) The following statements in conspicuous type:
1424
1. THIS PROSPECTUS (OFFERING CIRCULAR) CONTAINS IMPORTANT
1425
MATTERS TO BE CONSIDERED IN ACQUIRING A CONDOMINIUM UNIT.
1426
2. THE STATEMENTS CONTAINED HEREIN ARE ONLY SUMMARY IN
1427
NATURE. A PROSPECTIVE PURCHASER SHOULD REFER TO ALL REFERENCES,
1428
ALL EXHIBITS HERETO, THE CONTRACT DOCUMENTS, AND SALES MATERIALS.
1429
3. ORAL REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY
1430
STATING THE REPRESENTATIONS OF THE DEVELOPER. REFER TO THIS
1431
PROSPECTUS (OFFERING CIRCULAR) AND ITS EXHIBITS FOR CORRECT
1432
REPRESENTATIONS.
1433
(2) Summary: The next page must contain all statements
1434
required to be in conspicuous type in the prospectus or offering
1435
circular.
1436
(3) A separate index of the contents and exhibits of the
1437
prospectus.
1438
(4) Beginning on the first page of the text (not including
1439
the summary and index), a description of the condominium,
1440
including, but not limited to, the following information:
1441
(a) Its name and location.
1442
(b) A description of the condominium property, including,
1443
without limitation:
1444
1. The number of buildings, the number of units in each
1445
building, the number of bathrooms and bedrooms in each unit, and
1446
the total number of units, if the condominium is not a phase
1447
condominium, or the maximum number of buildings that may be
1448
contained within the condominium, the minimum and maximum numbers
1449
of units in each building, the minimum and maximum numbers of
1450
bathrooms and bedrooms that may be contained in each unit, and
1451
the maximum number of units that may be contained within the
1452
condominium, if the condominium is a phase condominium.
1453
2. The page in the condominium documents where a copy of
1454
the plot plan and survey of the condominium is located.
1455
3. The estimated latest date of completion of constructing,
1456
finishing, and equipping. In lieu of a date, the description
1457
shall include a statement that the estimated date of completion
1458
of the condominium is in the purchase agreement and a reference
1459
to the article or paragraph containing that information.
1460
(c) The maximum number of units that will use facilities in
1461
common with the condominium. If the maximum number of units will
1462
vary, a description of the basis for variation and the minimum
1463
amount of dollars per unit to be spent for additional
1464
recreational facilities or enlargement of such facilities. If the
1465
addition or enlargement of facilities will result in a material
1466
increase of a unit owner's maintenance expense or rental expense,
1467
if any, the maximum increase and limitations thereon shall be
1468
stated.
1469
(5)(a) A statement in conspicuous type describing whether
1470
the condominium is created and being sold as fee simple interests
1471
or as leasehold interests. If the condominium is created or being
1472
sold on a leasehold, the location of the lease in the disclosure
1473
materials shall be stated.
1474
(b) If timeshare estates are or may be created with respect
1475
to any unit in the condominium, a statement in conspicuous type
1476
stating that timeshare estates are created and being sold in
1477
units in the condominium.
1478
(6) A description of the recreational and other commonly
1479
used facilities that will be used only by unit owners of the
1480
condominium, including, but not limited to, the following:
1481
(a) Each room and its intended purposes, location,
1482
approximate floor area, and capacity in numbers of people.
1483
(b) Each swimming pool, as to its general location,
1484
approximate size and depths, approximate deck size and capacity,
1485
and whether heated.
1486
(c) Additional facilities, as to the number of each
1487
facility, its approximate location, approximate size, and
1488
approximate capacity.
1489
(d) A general description of the items of personal property
1490
and the approximate number of each item of personal property that
1491
the developer is committing to furnish for each room or other
1492
facility or, in the alternative, a representation as to the
1493
minimum amount of expenditure that will be made to purchase the
1494
personal property for the facility.
1495
(e) The estimated date when each room or other facility
1496
will be available for use by the unit owners.
1497
(f)1. An identification of each room or other facility to
1498
be used by unit owners that will not be owned by the unit owners
1499
or the association;
1500
2. A reference to the location in the disclosure materials
1501
of the lease or other agreements providing for the use of those
1502
facilities; and
1503
3. A description of the terms of the lease or other
1504
agreements, including the length of the term; the rent payable,
1505
directly or indirectly, by each unit owner, and the total rent
1506
payable to the lessor, stated in monthly and annual amounts for
1507
the entire term of the lease; and a description of any option to
1508
purchase the property leased under any such lease, including the
1509
time the option may be exercised, the purchase price or how it is
1510
to be determined, the manner of payment, and whether the option
1511
may be exercised for a unit owner's share or only as to the
1512
entire leased property.
1513
(g) A statement as to whether the developer may provide
1514
additional facilities not described above; their general
1515
locations and types; improvements or changes that may be made;
1516
the approximate dollar amount to be expended; and the maximum
1517
additional common expense or cost to the individual unit owners
1518
that may be charged during the first annual period of operation
1519
of the modified or added facilities.
1520
1521
Descriptions as to locations, areas, capacities, numbers,
1522
volumes, or sizes may be stated as approximations or minimums.
1523
(7) A description of the recreational and other facilities
1524
that will be used in common with other condominiums, community
1525
associations, or planned developments which require the payment
1526
of the maintenance and expenses of such facilities, either
1527
directly or indirectly, by the unit owners. The description shall
1528
include, but not be limited to, the following:
1529
(a) Each building and facility committed to be built.
1530
(b) Facilities not committed to be built except under
1531
certain conditions, and a statement of those conditions or
1532
contingencies.
1533
(c) As to each facility committed to be built, or which
1534
will be committed to be built upon the happening of one of the
1535
conditions in paragraph (b), a statement of whether it will be
1536
owned by the unit owners having the use thereof or by an
1537
association or other entity which will be controlled by them, or
1538
others, and the location in the exhibits of the lease or other
1539
document providing for use of those facilities.
1540
(d) The year in which each facility will be available for
1541
use by the unit owners or, in the alternative, the maximum number
1542
of unit owners in the project at the time each of all of the
1543
facilities is committed to be completed.
1544
(e) A general description of the items of personal
1545
property, and the approximate number of each item of personal
1546
property, that the developer is committing to furnish for each
1547
room or other facility or, in the alternative, a representation
1548
as to the minimum amount of expenditure that will be made to
1549
purchase the personal property for the facility.
1550
(f) If there are leases, a description thereof, including
1551
the length of the term, the rent payable, and a description of
1552
any option to purchase.
1553
1554
Descriptions shall include location, areas, capacities, numbers,
1555
volumes, or sizes and may be stated as approximations or
1556
minimums.
1557
(8) Recreation lease or associated club membership:
1558
(a) If any recreational facilities or other facilities
1559
offered by the developer and available to, or to be used by, unit
1560
owners are to be leased or have club membership associated, the
1561
following statement in conspicuous type shall be included: THERE
1562
IS A RECREATIONAL FACILITIES LEASE ASSOCIATED WITH THIS
1563
CONDOMINIUM; or, THERE IS A CLUB MEMBERSHIP ASSOCIATED WITH THIS
1564
CONDOMINIUM. There shall be a reference to the location in the
1565
disclosure materials where the recreation lease or club
1566
membership is described in detail.
1567
(b) If it is mandatory that unit owners pay a fee, rent,
1568
dues, or other charges under a recreational facilities lease or
1569
club membership for the use of facilities, there shall be in
1570
conspicuous type the applicable statement:
1571
1. MEMBERSHIP IN THE RECREATIONAL FACILITIES CLUB IS
1572
MANDATORY FOR UNIT OWNERS; or
1573
2. UNIT OWNERS ARE REQUIRED, AS A CONDITION OF OWNERSHIP,
1574
TO BE LESSEES UNDER THE RECREATIONAL FACILITIES LEASE; or
1575
3. UNIT OWNERS ARE REQUIRED TO PAY THEIR SHARE OF THE COSTS
1576
AND EXPENSES OF MAINTENANCE, MANAGEMENT, UPKEEP, REPLACEMENT,
1577
RENT, AND FEES UNDER THE RECREATIONAL FACILITIES LEASE (OR THE
1578
OTHER INSTRUMENTS PROVIDING THE FACILITIES); or
1579
4. A similar statement of the nature of the organization or
1580
the manner in which the use rights are created, and that unit
1581
owners are required to pay.
1582
1583
Immediately following the applicable statement, the location in
1584
the disclosure materials where the development is described in
1585
detail shall be stated.
1586
(c) If the developer, or any other person other than the
1587
unit owners and other persons having use rights in the
1588
facilities, reserves, or is entitled to receive, any rent, fee,
1589
or other payment for the use of the facilities, then there shall
1590
be the following statement in conspicuous type: THE UNIT OWNERS
1591
OR THE ASSOCIATION(S) MUST PAY RENT OR LAND USE FEES FOR
1592
RECREATIONAL OR OTHER COMMONLY USED FACILITIES. Immediately
1593
following this statement, the location in the disclosure
1594
materials where the rent or land use fees are described in detail
1595
shall be stated.
1596
(d) If, in any recreation format, whether leasehold, club,
1597
or other, any person other than the association has the right to
1598
a lien on the units to secure the payment of assessments, rent,
1599
or other exactions, there shall appear a statement in conspicuous
1600
type in substantially the following form:
1601
1. THERE IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO
1602
SECURE THE PAYMENT OF RENT AND OTHER EXACTIONS UNDER THE
1603
RECREATION LEASE. THE UNIT OWNER'S FAILURE TO MAKE THESE PAYMENTS
1604
MAY RESULT IN FORECLOSURE OF THE LIEN; or
1605
2. THERE IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO
1606
SECURE THE PAYMENT OF ASSESSMENTS OR OTHER EXACTIONS COMING DUE
1607
FOR THE USE, MAINTENANCE, UPKEEP, OR REPAIR OF THE RECREATIONAL
1608
OR COMMONLY USED FACILITIES. THE UNIT OWNER'S FAILURE TO MAKE
1609
THESE PAYMENTS MAY RESULT IN FORECLOSURE OF THE LIEN.
1610
1611
Immediately following the applicable statement, the location in
1612
the disclosure materials where the lien or lien right is
1613
described in detail shall be stated.
1614
(9) If the developer or any other person has the right to
1615
increase or add to the recreational facilities at any time after
1616
the establishment of the condominium whose unit owners have use
1617
rights therein, without the consent of the unit owners or
1618
associations being required, there shall appear a statement in
1619
conspicuous type in substantially the following form:
1620
RECREATIONAL FACILITIES MAY BE EXPANDED OR ADDED WITHOUT CONSENT
1621
OF UNIT OWNERS OR THE ASSOCIATION(S). Immediately following this
1622
statement, the location in the disclosure materials where such
1623
reserved rights are described shall be stated.
1624
(10) A statement of whether the developer's plan includes a
1625
program of leasing units rather than selling them, or leasing
1626
units and selling them subject to such leases. If so, there shall
1627
be a description of the plan, including the number and
1628
identification of the units and the provisions and term of the
1629
proposed leases, and a statement in boldfaced type that: THE
1630
UNITS MAY BE TRANSFERRED SUBJECT TO A LEASE.
1631
(11) The arrangements for management of the association and
1632
maintenance and operation of the condominium property and of
1633
other property that will serve the unit owners of the condominium
1634
property, and a description of the management contract and all
1635
other contracts for these purposes having a term in excess of 1
1636
year, including the following:
1637
(a) The names of contracting parties.
1638
(b) The term of the contract.
1639
(c) The nature of the services included.
1640
(d) The compensation, stated on a monthly and annual basis,
1641
and provisions for increases in the compensation.
1642
(e) A reference to the volumes and pages of the condominium
1643
documents and of the exhibits containing copies of such
1644
contracts.
1645
1646
Copies of all described contracts shall be attached as exhibits.
1647
If there is a contract for the management of the condominium
1648
property, then a statement in conspicuous type in substantially
1649
the following form shall appear, identifying the proposed or
1650
existing contract manager: THERE IS (IS TO BE) A CONTRACT FOR THE
1651
MANAGEMENT OF THE CONDOMINIUM PROPERTY WITH (NAME OF THE CONTRACT
1652
MANAGER). Immediately following this statement, the location in
1653
the disclosure materials of the contract for management of the
1654
condominium property shall be stated.
1655
(12) If the developer or any other person or persons other
1656
than the unit owners has the right to retain control of the board
1657
of administration of the association for a period of time which
1658
can exceed 1 year after the closing of the sale of a majority of
1659
the units in that condominium to persons other than successors or
1660
alternate developers, then a statement in conspicuous type in
1661
substantially the following form shall be included: THE DEVELOPER
1662
(OR OTHER PERSON) HAS THE RIGHT TO RETAIN CONTROL OF THE
1663
ASSOCIATION AFTER A MAJORITY OF THE UNITS HAVE BEEN SOLD.
1664
Immediately following this statement, the location in the
1665
disclosure materials where this right to control is described in
1666
detail shall be stated.
1667
(13) If there are any restrictions upon the sale, transfer,
1668
conveyance, or leasing of a unit, then a statement in conspicuous
1669
type in substantially the following form shall be included: THE
1670
SALE, LEASE, OR TRANSFER OF UNITS IS RESTRICTED OR CONTROLLED.
1671
Immediately following this statement, the location in the
1672
disclosure materials where the restriction, limitation, or
1673
control on the sale, lease, or transfer of units is described in
1674
detail shall be stated.
1675
(14) If the condominium is part of a phase project, the
1676
following information shall be stated:
1677
(a) A statement in conspicuous type in substantially the
1678
following form: THIS IS A PHASE CONDOMINIUM. ADDITIONAL LAND AND
1679
UNITS MAY BE ADDED TO THIS CONDOMINIUM. Immediately following
1680
this statement, the location in the disclosure materials where
1681
the phasing is described shall be stated.
1682
(b) A summary of the provisions of the declaration which
1683
provide for the phasing.
1684
(c) A statement as to whether or not residential buildings
1685
and units which are added to the condominium may be substantially
1686
different from the residential buildings and units originally in
1687
the condominium. If the added residential buildings and units may
1688
be substantially different, there shall be a general description
1689
of the extent to which such added residential buildings and units
1690
may differ, and a statement in conspicuous type in substantially
1691
the following form shall be included: BUILDINGS AND UNITS WHICH
1692
ARE ADDED TO THE CONDOMINIUM MAY BE SUBSTANTIALLY DIFFERENT FROM
1693
THE OTHER BUILDINGS AND UNITS IN THE CONDOMINIUM. Immediately
1694
following this statement, the location in the disclosure
1695
materials where the extent to which added residential buildings
1696
and units may substantially differ is described shall be stated.
1697
(d) A statement of the maximum number of buildings
1698
containing units, the maximum and minimum numbers of units in
1699
each building, the maximum number of units, and the minimum and
1700
maximum square footage of the units that may be contained within
1701
each parcel of land which may be added to the condominium.
1702
(15) If a condominium created on or after July 1, 2000, is
1703
or may become part of a multicondominium, the following
1704
information must be provided:
1705
(a) A statement in conspicuous type in substantially the
1706
following form: THIS CONDOMINIUM IS (MAY BE) PART OF A
1707
MULTICONDOMINIUM DEVELOPMENT IN WHICH OTHER CONDOMINIUMS WILL
1708
(MAY) BE OPERATED BY THE SAME ASSOCIATION. Immediately following
1709
this statement, the location in the prospectus or offering
1710
circular and its exhibits where the multicondominium aspects of
1711
the offering are described must be stated.
1712
(b) A summary of the provisions in the declaration,
1713
articles of incorporation, and bylaws which establish and provide
1714
for the operation of the multicondominium, including a statement
1715
as to whether unit owners in the condominium will have the right
1716
to use recreational or other facilities located or planned to be
1717
located in other condominiums operated by the same association,
1718
and the manner of sharing the common expenses related to such
1719
facilities.
1720
(c) A statement of the minimum and maximum number of
1721
condominiums, and the minimum and maximum number of units in each
1722
of those condominiums, which will or may be operated by the
1723
association, and the latest date by which the exact number will
1724
be finally determined.
1725
(d) A statement as to whether any of the condominiums in
1726
the multicondominium may include units intended to be used for
1727
nonresidential purposes and the purpose or purposes permitted for
1728
such use.
1729
(e) A general description of the location and approximate
1730
acreage of any land on which any additional condominiums to be
1731
operated by the association may be located.
1732
(16) If the condominium is created by conversion of
1733
existing improvements, the following information shall be stated:
1734
(a) The information required by s. 718.616.
1735
(b) A caveat that there are no express warranties unless
1736
they are stated in writing by the developer.
1737
(17) A summary of the restrictions, if any, to be imposed
1738
on units concerning the use of any of the condominium property,
1739
including statements as to whether there are restrictions upon
1740
children and pets, and reference to the volumes and pages of the
1741
condominium documents where such restrictions are found, or if
1742
such restrictions are contained elsewhere, then a copy of the
1743
documents containing the restrictions shall be attached as an
1744
exhibit.
1745
(18) If there is any land that is offered by the developer
1746
for use by the unit owners and that is neither owned by them nor
1747
leased to them, the association, or any entity controlled by unit
1748
owners and other persons having the use rights to such land, a
1749
statement shall be made as to how such land will serve the
1750
condominium. If any part of such land will serve the condominium,
1751
the statement shall describe the land and the nature and term of
1752
service, and the declaration or other instrument creating such
1753
servitude shall be included as an exhibit.
1754
(19) The manner in which utility and other services,
1755
including, but not limited to, sewage and waste disposal, water
1756
supply, and storm drainage, will be provided and the person or
1757
entity furnishing them.
1758
(20) An explanation of the manner in which the
1759
apportionment of common expenses and ownership of the common
1760
elements has been determined.
1761
(21) An estimated operating budget for the condominium and
1762
the association, and a schedule of the unit owner's expenses
1763
shall be attached as an exhibit and shall contain the following
1764
information:
1765
(a) The estimated monthly and annual expenses of the
1766
condominium and the association that are collected from unit
1767
owners by assessments.
1768
(b) The estimated monthly and annual expenses of each unit
1769
owner for a unit, other than common expenses paid by all unit
1770
owners, payable by the unit owner to persons or entities other
1771
than the association, as well as to the association, including
1772
fees assessed pursuant to s. 718.113(1) for maintenance of
1773
limited common elements where such costs are shared only by those
1774
entitled to use the limited common element, and the total
1775
estimated monthly and annual expense. There may be excluded from
1776
this estimate expenses which are not provided for or contemplated
1777
by the condominium documents, including, but not limited to, the
1778
costs of private telephone; maintenance of the interior of
1779
condominium units, which is not the obligation of the
1780
association; maid or janitorial services privately contracted for
1781
by the unit owners; utility bills billed directly to each unit
1782
owner for utility services to his or her unit; insurance premiums
1783
other than those incurred for policies obtained by the
1784
condominium; and similar personal expenses of the unit owner. A
1785
unit owner's estimated payments for assessments shall also be
1786
stated in the estimated amounts for the times when they will be
1787
due.
1788
(c) The estimated items of expenses of the condominium and
1789
the association, except as excluded under paragraph (b),
1790
including, but not limited to, the following items, which shall
1791
be stated either as an association expense collectible by
1792
assessments or as unit owners' expenses payable to persons other
1793
than the association:
1794
1. Expenses for the association and condominium:
1795
a. Administration of the association.
1796
b. Management fees.
1797
c. Maintenance.
1798
d. Rent for recreational and other commonly used
1799
facilities.
1800
e. Taxes upon association property.
1801
f. Taxes upon leased areas.
1802
g. Insurance.
1803
h. Security provisions.
1804
i. Other expenses.
1805
j. Operating capital.
1806
k. Reserves.
1807
l. Fees payable to the division.
1808
2. Expenses for a unit owner:
1809
a. Rent for the unit, if subject to a lease.
1810
b. Rent payable by the unit owner directly to the lessor or
1811
agent under any recreational lease or lease for the use of
1812
commonly used facilities, which use and payment is a mandatory
1813
condition of ownership and is not included in the common expense
1814
or assessments for common maintenance paid by the unit owners to
1815
the association.
1816
(d) The following statement in conspicuous type: THE BUDGET
1817
CONTAINED IN THIS OFFERING CIRCULAR HAS BEEN PREPARED IN
1818
ACCORDANCE WITH THE CONDOMINIUM ACT AND IS A GOOD FAITH ESTIMATE
1819
ONLY AND REPRESENTS AN APPROXIMATION OF FUTURE EXPENSES BASED ON
1820
FACTS AND CIRCUMSTANCES EXISTING AT THE TIME OF ITS PREPARATION.
1821
ACTUAL COSTS OF SUCH ITEMS MAY EXCEED THE ESTIMATED COSTS. SUCH
1822
CHANGES IN COST DO NOT CONSTITUTE MATERIAL ADVERSE CHANGES IN THE
1823
OFFERING.
1824
(e) Each budget for an association prepared by a developer
1825
consistent with this subsection shall be prepared in good faith
1826
and shall reflect accurate estimated amounts for the required
1827
items in paragraph (c) at the time of the filing of the offering
1828
circular with the division, and subsequent increased amounts of
1829
any item included in the association's estimated budget that are
1830
beyond the control of the developer shall not be considered an
1831
amendment that would give rise to rescission rights set forth in
1832
s. 718.503(1)(a) or (b), nor shall such increases modify, void,
1833
or otherwise affect any guarantee of the developer contained in
1834
the offering circular or any purchase contract. It is the intent
1835
of this paragraph to clarify existing law.
1836
(f) The estimated amounts shall be stated for a period of
1837
at least 12 months and may distinguish between the period prior
1838
to the time unit owners other than the developer elect a majority
1839
of the board of administration and the period after that date.
1840
(22) A schedule of estimated closing expenses to be paid by
1841
a buyer or lessee of a unit and a statement of whether title
1842
opinion or title insurance policy is available to the buyer and,
1843
if so, at whose expense.
1844
(23) The identity of the developer and the chief operating
1845
officer or principal directing the creation and sale of the
1846
condominium and a statement of its and his or her experience in
1847
this field.
1848
(24) Copies of the following, to the extent they are
1849
applicable, shall be included as exhibits:
1850
(a) The declaration of condominium, or the proposed
1851
declaration if the declaration has not been recorded.
1852
(b) The articles of incorporation creating the association.
1853
(c) The bylaws of the association.
1854
(d) The ground lease or other underlying lease of the
1855
condominium.
1856
(e) The management agreement and all maintenance and other
1857
contracts for management of the association and operation of the
1858
condominium and facilities used by the unit owners having a
1859
service term in excess of 1 year.
1860
(f) The estimated operating budget for the condominium and
1861
the required schedule of unit owners' expenses.
1862
(g) A copy of the floor plan of the unit and the plot plan
1863
showing the location of the residential buildings and the
1864
recreation and other common areas.
1865
(h) The lease of recreational and other facilities that
1866
will be used only by unit owners of the subject condominium.
1867
(i) The lease of facilities used by owners and others.
1868
(j) The form of unit lease, if the offer is of a leasehold.
1869
(k) A declaration of servitude of properties serving the
1870
condominium but not owned by unit owners or leased to them or the
1871
association.
1872
(l) The statement of condition of the existing building or
1873
buildings, if the offering is of units in an operation being
1874
converted to condominium ownership.
1875
(m) The statement of inspection for termite damage and
1876
treatment of the existing improvements, if the condominium is a
1877
conversion.
1878
(n) The form of agreement for sale or lease of units.
1879
(o) A copy of the agreement for escrow of payments made to
1880
the developer prior to closing.
1881
(p) A copy of the documents containing any restrictions on
1882
use of the property required by subsection (17).
1883
(25) Any prospectus or offering circular complying, prior
1884
to the effective date of this act, with the provisions of former
1885
ss. 711.69 and 711.802 may continue to be used without amendment
1886
or may be amended to comply with the provisions of this chapter.
1887
(26) A brief narrative description of the location and
1888
effect of all existing and intended easements located or to be
1889
located on the condominium property other than those described in
1890
the declaration.
1891
(27) If the developer is required by state or local
1892
authorities to obtain acceptance or approval of any dock or
1893
marina facilities intended to serve the condominium, a copy of
1894
any such acceptance or approval acquired by the time of filing
1895
with the division under s. 718.502(1) or a statement that such
1896
acceptance or approval has not been acquired or received.
1897
(28) Evidence demonstrating that the developer has an
1898
ownership, leasehold, or contractual interest in the land upon
1899
which the condominium is to be developed.
1900
Section 40. Section 718.508, Florida Statutes, is amended
1901
to read:
1902
718.508 Regulation by Division of Hotels and
1903
Restaurants.--In addition to the authority, regulation, or
1904
control exercised by the Division of Florida Land Sales,
1905
Condominiums, Timeshares, and Mobile Homes pursuant to this act
1906
with respect to condominiums, buildings included in a condominium
1907
property are shall be subject to the authority, regulation, or
1908
control of the Division of Hotels and Restaurants of the
1909
Department of Business and Professional Regulation, to the extent
1910
provided for in chapter 399.
1911
Section 41. Section 718.509, Florida Statutes, is amended,
1912
to read:
1913
718.509 Division of Florida Land Sales, Condominiums,
1914
Timeshares, and Mobile Homes Trust Fund.--
1915
(1) There is created within the State Treasury the Division
1916
of Florida Condominiums, Timeshares, and Mobile Homes Trust Fund
1917
to be used for the administration and operation of this chapter
1918
and chapters 718, 719, 721, and 723 by the division.
1919
(2) All moneys collected by the division from fees, fines,
1920
or penalties or from costs awarded to the division by a court or
1921
administrative final order shall be paid into the Division of
1922
Florida Condominiums, Timeshares, and Mobile Homes Trust Fund.
1923
The Legislature shall appropriate funds from the trust fund
1924
sufficient to carry out the provisions of this chapter and the
1925
provisions of law with respect to each category of business
1926
covered by the trust fund. The division shall maintain separate
1927
revenue accounts in the trust fund for each business regulated by
1928
the division. The division shall provide for the proportionate
1929
allocation among the accounts of expenses incurred by the
1930
division in the performance of its duties with respect to each
1931
business. As part of its normal budgetary process, the division
1932
shall prepare an annual report of revenues and allocated expenses
1933
related to the operation of each business which may be used to
1934
determine fees charged by the division. This subsection shall
1935
operate pursuant to s. 215.20. All funds collected by the
1936
division and any amount paid for a fee or penalty under this
1937
chapter shall be deposited in the State Treasury to the credit of
1938
the Division of Florida Land Sales, Condominiums, and Mobile
1939
Homes Trust Fund created by s. 498.019.
1940
Section 42. Paragraph (a) of subsection (2) of section
1941
718.608, Florida Statutes, is amended to read:
1942
718.608 Notice of intended conversion; time of delivery;
1943
content.--
1944
(2)(a) Each notice of intended conversion shall be dated
1945
and in writing. The notice shall contain the following statement,
1946
with the phrases of the following statement which appear in upper
1947
case printed in conspicuous type:
1948
1949
These apartments are being converted to condominium by
1950
(name of developer) , the developer.
1951
1. YOU MAY REMAIN AS A RESIDENT UNTIL THE EXPIRATION OF
1952
YOUR RENTAL AGREEMENT. FURTHER, YOU MAY EXTEND YOUR RENTAL
1953
AGREEMENT AS FOLLOWS:
1954
a. If you have continuously been a resident of these
1955
apartments during the last 180 days and your rental agreement
1956
expires during the next 270 days, you may extend your rental
1957
agreement for up to 270 days after the date of this notice.
1958
b. If you have not been a continuous resident of these
1959
apartments for the last 180 days and your rental agreement
1960
expires during the next 180 days, you may extend your rental
1961
agreement for up to 180 days after the date of this notice.
1962
c. IN ORDER FOR YOU TO EXTEND YOUR RENTAL AGREEMENT, YOU
1963
MUST GIVE THE DEVELOPER WRITTEN NOTICE WITHIN 45 DAYS AFTER THE
1964
DATE OF THIS NOTICE.
1965
2. IF YOUR RENTAL AGREEMENT EXPIRES IN THE NEXT 45 DAYS,
1966
you may extend your rental agreement for up to 45 days after the
1967
date of this notice while you decide whether to extend your
1968
rental agreement as explained above. To do so, you must notify
1969
the developer in writing. You will then have the full 45 days to
1970
decide whether to extend your rental agreement as explained
1971
above.
1972
3. During the extension of your rental agreement you will
1973
be charged the same rent that you are now paying.
1974
4. YOU MAY CANCEL YOUR RENTAL AGREEMENT AND ANY EXTENSION
1975
OF THE RENTAL AGREEMENT AS FOLLOWS:
1976
a. If your rental agreement began or was extended or
1977
renewed after May 1, 1980, and your rental agreement, including
1978
extensions and renewals, has an unexpired term of 180 days or
1979
less, you may cancel your rental agreement upon 30 days' written
1980
notice and move. Also, upon 30 days' written notice, you may
1981
cancel any extension of the rental agreement.
1982
b. If your rental agreement was not begun or was not
1983
extended or renewed after May 1, 1980, you may not cancel the
1984
rental agreement without the consent of the developer. If your
1985
rental agreement, including extensions and renewals, has an
1986
unexpired term of 180 days or less, you may, however, upon 30
1987
days' written notice cancel any extension of the rental
1988
agreement.
1989
5. All notices must be given in writing and sent by mail,
1990
return receipt requested, or delivered in person to the developer
1991
at this address: (name and address of developer) .
1992
6. If you have continuously been a resident of these
1993
apartments during the last 180 days:
1994
a. You have the right to purchase your apartment and will
1995
have 45 days to decide whether to purchase. If you do not buy the
1996
unit at that price and the unit is later offered at a lower
1997
price, you will have the opportunity to buy the unit at the lower
1998
price. However, in all events your right to purchase the unit
1999
ends when the rental agreement or any extension of the rental
2000
agreement ends or when you waive this right in writing.
2001
b. Within 90 days you will be provided purchase information
2002
relating to your apartment, including the price of your unit and
2003
the condition of the building. If you do not receive this
2004
information within 90 days, your rental agreement and any
2005
extension will be extended 1 day for each day over 90 days until
2006
you are given the purchase information. If you do not want this
2007
rental agreement extension, you must notify the developer in
2008
writing.
2009
7. If you have any questions regarding this conversion or
2010
the Condominium Act, you may contact the developer or the state
2011
agency which regulates condominiums: The Division of Florida Land
2012
Sales, Condominiums, Timeshares, and Mobile Homes, (Tallahassee
2013
address and telephone number of division) .
2014
Section 43. Subsection (17) of section 719.103, Florida
2015
Statutes, is amended to read:
2016
719.103 Definitions.--As used in this chapter:
2017
(17) "Division" means the Division of Florida Land Sales,
2018
Condominiums, Timeshares, and Mobile Homes of the Department of
2019
Business and Professional Regulation.
2020
Section 44. Section 719.1255, Florida Statutes, is amended
2021
to read:
2022
719.1255 Alternative resolution of disputes.--The Division
2023
of Florida Land Sales, Condominiums, Timeshares, and Mobile Homes
2024
of the Department of Business and Professional Regulation shall
2025
provide for alternative dispute resolution in accordance with s.
2026
2027
Section 45. Section 719.501, Florida Statutes, is amended
2028
to read:
2029
719.501 Powers and duties of Division of Florida Land
2030
Sales, Condominiums, Timeshares, and Mobile Homes.--
2031
(1) The Division of Florida Land Sales, Condominiums,
2032
Timeshares, and Mobile Homes of the Department of Business and
2033
Professional Regulation, referred to as the "division" in this
2034
part, in addition to other powers and duties prescribed by
2035
chapter 718 498, has the power to enforce and ensure compliance
2036
with the provisions of this chapter and adopted rules promulgated
2037
pursuant hereto relating to the development, construction, sale,
2038
lease, ownership, operation, and management of residential
2039
cooperative units. In performing its duties, the division shall
2040
have the following powers and duties:
2041
(a) The division may make necessary public or private
2042
investigations within or outside this state to determine whether
2043
any person has violated this chapter or any rule or order
2044
hereunder, to aid in the enforcement of this chapter, or to aid
2045
in the adoption of rules or forms hereunder.
2046
(b) The division may require or permit any person to file a
2047
statement in writing, under oath or otherwise, as the division
2048
determines, as to the facts and circumstances concerning a matter
2049
to be investigated.
2050
(c) For the purpose of any investigation under this
2051
chapter, the division director or any officer or employee
2052
designated by the division director may administer oaths or
2053
affirmations, subpoena witnesses and compel their attendance,
2054
take evidence, and require the production of any matter which is
2055
relevant to the investigation, including the existence,
2056
description, nature, custody, condition, and location of any
2057
books, documents, or other tangible things and the identity and
2058
location of persons having knowledge of relevant facts or any
2059
other matter reasonably calculated to lead to the discovery of
2060
material evidence. Upon failure by a person to obey a subpoena or
2061
to answer questions propounded by the investigating officer and
2062
upon reasonable notice to all persons affected thereby, the
2063
division may apply to the circuit court for an order compelling
2064
compliance.
2065
(d) Notwithstanding any remedies available to unit owners
2066
and associations, if the division has reasonable cause to believe
2067
that a violation of any provision of this chapter or related rule
2068
promulgated pursuant hereto has occurred, the division may
2069
institute enforcement proceedings in its own name against a
2070
developer, association, officer, or member of the board, or its
2071
assignees or agents, as follows:
2072
1. The division may permit a person whose conduct or
2073
actions may be under investigation to waive formal proceedings
2074
and enter into a consent proceeding whereby orders, rules, or
2075
letters of censure or warning, whether formal or informal, may be
2076
entered against the person.
2077
2. The division may issue an order requiring the developer,
2078
association, officer, or member of the board, or its assignees or
2079
agents, to cease and desist from the unlawful practice and take
2080
such affirmative action as in the judgment of the division will
2081
carry out the purposes of this chapter. Such affirmative action
2082
may include, but is not limited to, an order requiring a
2083
developer to pay moneys determined to be owed to a condominium
2084
association.
2085
3. The division may bring an action in circuit court on
2086
behalf of a class of unit owners, lessees, or purchasers for
2087
declaratory relief, injunctive relief, or restitution.
2088
4. The division may impose a civil penalty against a
2089
developer or association, or its assignees or agents, for any
2090
violation of this chapter or related a rule promulgated pursuant
2091
hereto. The division may impose a civil penalty individually
2092
against any officer or board member who willfully and knowingly
2093
violates a provision of this chapter, a rule adopted pursuant to
2094
this chapter, or a final order of the division. The term
2095
"willfully and knowingly" means that the division informed the
2096
officer or board member that his or her action or intended action
2097
violates this chapter, a rule adopted under this chapter, or a
2098
final order of the division, and that the officer or board member
2099
refused to comply with the requirements of this chapter, a rule
2100
adopted under this chapter, or a final order of the division. The
2101
division, prior to initiating formal agency action under chapter
2102
120, shall afford the officer or board member an opportunity to
2103
voluntarily comply with this chapter, a rule adopted under this
2104
chapter, or a final order of the division. An officer or board
2105
member who complies within 10 days is not subject to a civil
2106
penalty. A penalty may be imposed on the basis of each day of
2107
continuing violation, but in no event shall the penalty for any
2108
offense exceed $5,000. By January 1, 1998, the division shall
2109
adopt, by rule, penalty guidelines applicable to possible
2110
violations or to categories of violations of this chapter or
2111
rules adopted by the division. The guidelines must specify a
2112
meaningful range of civil penalties for each such violation of
2113
the statute and rules and must be based upon the harm caused by
2114
the violation, the repetition of the violation, and upon such
2115
other factors deemed relevant by the division. For example, the
2116
division may consider whether the violations were committed by a
2117
developer or owner-controlled association, the size of the
2118
association, and other factors. The guidelines must designate the
2119
possible mitigating or aggravating circumstances that justify a
2120
departure from the range of penalties provided by the rules. It
2121
is the legislative intent that minor violations be distinguished
2122
from those which endanger the health, safety, or welfare of the
2123
cooperative residents or other persons and that such guidelines
2124
provide reasonable and meaningful notice to the public of likely
2125
penalties that may be imposed for proscribed conduct. This
2126
subsection does not limit the ability of the division to
2127
informally dispose of administrative actions or complaints by
2128
stipulation, agreed settlement, or consent order. All amounts
2129
collected shall be deposited with the Chief Financial Officer to
2130
the credit of the Division of Florida Land Sales, Condominiums,
2131
Timeshares, and Mobile Homes Trust Fund. If a developer fails to
2132
pay the civil penalty, the division shall thereupon issue an
2133
order directing that such developer cease and desist from further
2134
operation until such time as the civil penalty is paid or may
2135
pursue enforcement of the penalty in a court of competent
2136
jurisdiction. If an association fails to pay the civil penalty,
2137
the division shall thereupon pursue enforcement in a court of
2138
competent jurisdiction, and the order imposing the civil penalty
2139
or the cease and desist order shall not become effective until 20
2140
days after the date of such order. Any action commenced by the
2141
division shall be brought in the county in which the division has
2142
its executive offices or in the county where the violation
2143
occurred.
2144
(e) The division may is authorized to prepare and
2145
disseminate a prospectus and other information to assist
2146
prospective owners, purchasers, lessees, and developers of
2147
residential cooperatives in assessing the rights, privileges, and
2148
duties pertaining thereto.
2149
(f) The division has authority to adopt rules pursuant to
2151
of this chapter.
2152
(g) The division shall establish procedures for providing
2153
notice to an association when the division is considering the
2154
issuance of a declaratory statement with respect to the
2155
cooperative documents governing such cooperative community.
2156
(h) The division shall furnish each association which pays
2157
the fees required by paragraph (2)(a) a copy of this act,
2158
subsequent changes to this act on an annual basis, an amended
2159
version of this act as it becomes available from the Secretary of
2160
State's office on a biennial basis, and the rules adopted
2161
promulgated pursuant thereto on an annual basis.
2162
(i) The division shall annually provide each association
2163
with a summary of declaratory statements and formal legal
2164
opinions relating to the operations of cooperatives which were
2165
rendered by the division during the previous year.
2166
(j) The division shall adopt uniform accounting principles,
2167
policies, and standards to be used by all associations in the
2168
preparation and presentation of all financial statements required
2169
by this chapter. The principles, policies, and standards shall
2170
take into consideration the size of the association and the total
2171
revenue collected by the association.
2172
(k) The division shall provide training programs for
2173
cooperative association board members and unit owners.
2174
(l) The division shall maintain a toll-free telephone
2175
number accessible to cooperative unit owners.
2176
(m) When a complaint is made to the division, the division
2177
shall conduct its inquiry with reasonable dispatch and with due
2178
regard to the interests of the affected parties. Within 30 days
2179
after receipt of a complaint, the division shall acknowledge the
2180
complaint in writing and notify the complainant whether the
2181
complaint is within the jurisdiction of the division and whether
2182
additional information is needed by the division from the
2183
complainant. The division shall conduct its investigation and
2184
shall, within 90 days after receipt of the original complaint or
2185
timely requested additional information, take action upon the
2186
complaint. However, the failure to complete the investigation
2187
within 90 days does not prevent the division from continuing the
2188
investigation, accepting or considering evidence obtained or
2189
received after 90 days, or taking administrative action if
2190
reasonable cause exists to believe that a violation of this
2191
chapter or a rule of the division has occurred. If an
2192
investigation is not completed within the time limits established
2193
in this paragraph, the division shall, on a monthly basis, notify
2194
the complainant in writing of the status of the investigation.
2195
When reporting its action to the complainant, the division shall
2196
inform the complainant of any right to a hearing pursuant to ss.
2198
(n) The division shall develop a program to certify both
2199
volunteer and paid mediators to provide mediation of cooperative
2200
disputes. The division shall provide, upon request, a list of
2201
such mediators to any association, unit owner, or other
2202
participant in arbitration proceedings under s. 718.1255
2203
requesting a copy of the list. The division shall include on the
2204
list of voluntary mediators only persons who have received at
2205
least 20 hours of training in mediation techniques or have
2206
mediated at least 20 disputes. In order to become initially
2207
certified by the division, paid mediators must be certified by
2208
the Supreme Court to mediate court cases in either county or
2209
circuit courts. However, the division may adopt, by rule,
2210
additional factors for the certification of paid mediators, which
2211
factors must be related to experience, education, or background.
2212
Any person initially certified as a paid mediator by the division
2213
must, in order to continue to be certified, comply with the
2214
factors or requirements imposed by rules adopted by the division.
2215
(2)(a) Each cooperative association shall pay to the
2216
division, on or before January 1 of each year, an annual fee in
2217
the amount of $4 for each residential unit in cooperatives
2218
operated by the association. If the fee is not paid by March 1,
2219
then the association shall be assessed a penalty of 10 percent of
2220
the amount due, and the association shall not have the standing
2221
to maintain or defend any action in the courts of this state
2222
until the amount due is paid.
2223
(b) All fees shall be deposited in the Division of Florida
2224
Land Sales, Condominiums, Timeshares, and Mobile Homes Trust Fund
2225
as provided by law.
2226
Section 46. Paragraph (a) of subsection (2) of section
2227
719.502, Florida Statutes, is amended to read:
2228
719.502 Filing prior to sale or lease.--
2229
(2)(a) Prior to filing as required by subsection (1), and
2230
prior to acquiring an ownership, leasehold, or contractual
2231
interest in the land upon which the cooperative is to be
2232
developed, a developer shall not offer a contract for purchase or
2233
lease of a unit for more than 5 years. However, the developer may
2234
accept deposits for reservations upon the approval of a fully
2235
executed escrow agreement and reservation agreement form properly
2236
filed with the Division of Florida Land Sales, Condominiums,
2237
Timeshares, and Mobile Homes. Each filing of a proposed
2238
reservation program shall be accompanied by a filing fee of $250.
2239
Reservations shall not be taken on a proposed cooperative unless
2240
the developer has an ownership, leasehold, or contractual
2241
interest in the land upon which the cooperative is to be
2242
developed. The division shall notify the developer within 20 days
2243
of receipt of the reservation filing of any deficiencies
2244
contained therein. Such notification shall not preclude the
2245
determination of reservation filing deficiencies at a later date,
2246
nor shall it relieve the developer of any responsibility under
2247
the law. The escrow agreement and the reservation agreement form
2248
shall include a statement of the right of the prospective
2249
purchaser to an immediate unqualified refund of the reservation
2250
deposit moneys upon written request to the escrow agent by the
2251
prospective purchaser or the developer.
2252
Section 47. Section 719.504, Florida Statutes, is amended
2253
to read:
2254
719.504 Prospectus or offering circular.--Every developer
2255
of a residential cooperative which contains more than 20
2256
residential units, or which is part of a group of residential
2257
cooperatives which will be served by property to be used in
2258
common by unit owners of more than 20 residential units, shall
2259
prepare a prospectus or offering circular and file it with the
2260
Division of Florida Land Sales, Condominiums, Timeshares, and
2261
Mobile Homes prior to entering into an enforceable contract of
2262
purchase and sale of any unit or lease of a unit for more than 5
2263
years and shall furnish a copy of the prospectus or offering
2264
circular to each buyer. In addition to the prospectus or offering
2265
circular, each buyer shall be furnished a separate page entitled
2266
"Frequently Asked Questions and Answers," which must be in
2267
accordance with a format approved by the division. This page
2268
must, in readable language: inform prospective purchasers
2269
regarding their voting rights and unit use restrictions,
2270
including restrictions on the leasing of a unit; indicate whether
2271
and in what amount the unit owners or the association is
2272
obligated to pay rent or land use fees for recreational or other
2273
commonly used facilities; contain a statement identifying that
2274
amount of assessment which, pursuant to the budget, would be
2275
levied upon each unit type, exclusive of any special assessments,
2276
and which identifies the basis upon which assessments are levied,
2277
whether monthly, quarterly, or otherwise; state and identify any
2278
court cases in which the association is currently a party of
2279
record in which the association may face liability in excess of
2280
$100,000; and state whether membership in a recreational
2281
facilities association is mandatory and, if so, identify the fees
2282
currently charged per unit type. The division shall by rule
2283
require such other disclosure as in its judgment will assist
2284
prospective purchasers. The prospectus or offering circular may
2285
include more than one cooperative, although not all such units
2286
are being offered for sale as of the date of the prospectus or
2287
offering circular. The prospectus or offering circular must
2288
contain the following information:
2289
(1) The front cover or the first page must contain only:
2290
(a) The name of the cooperative.
2291
(b) The following statements in conspicuous type:
2292
1. THIS PROSPECTUS (OFFERING CIRCULAR) CONTAINS IMPORTANT
2293
MATTERS TO BE CONSIDERED IN ACQUIRING A COOPERATIVE UNIT.
2294
2. THE STATEMENTS CONTAINED HEREIN ARE ONLY SUMMARY IN
2295
NATURE. A PROSPECTIVE PURCHASER SHOULD REFER TO ALL REFERENCES,
2296
ALL EXHIBITS HERETO, THE CONTRACT DOCUMENTS, AND SALES MATERIALS.
2297
3. ORAL REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY
2298
STATING THE REPRESENTATIONS OF THE DEVELOPER. REFER TO THIS
2299
PROSPECTUS (OFFERING CIRCULAR) AND ITS EXHIBITS FOR CORRECT
2300
REPRESENTATIONS.
2301
(2) Summary: The next page must contain all statements
2302
required to be in conspicuous type in the prospectus or offering
2303
circular.
2304
(3) A separate index of the contents and exhibits of the
2305
prospectus.
2306
(4) Beginning on the first page of the text (not including
2307
the summary and index), a description of the cooperative,
2308
including, but not limited to, the following information:
2309
(a) Its name and location.
2310
(b) A description of the cooperative property, including,
2311
without limitation:
2312
1. The number of buildings, the number of units in each
2313
building, the number of bathrooms and bedrooms in each unit, and
2314
the total number of units, if the cooperative is not a phase
2315
cooperative; or, if the cooperative is a phase cooperative, the
2316
maximum number of buildings that may be contained within the
2317
cooperative, the minimum and maximum number of units in each
2318
building, the minimum and maximum number of bathrooms and
2319
bedrooms that may be contained in each unit, and the maximum
2320
number of units that may be contained within the cooperative.
2321
2. The page in the cooperative documents where a copy of
2322
the survey and plot plan of the cooperative is located.
2323
3. The estimated latest date of completion of constructing,
2324
finishing, and equipping. In lieu of a date, a statement that the
2325
estimated date of completion of the cooperative is in the
2326
purchase agreement and a reference to the article or paragraph
2327
containing that information.
2328
(c) The maximum number of units that will use facilities in
2329
common with the cooperative. If the maximum number of units will
2330
vary, a description of the basis for variation and the minimum
2331
amount of dollars per unit to be spent for additional
2332
recreational facilities or enlargement of such facilities. If the
2333
addition or enlargement of facilities will result in a material
2334
increase of a unit owner's maintenance expense or rental expense,
2335
if any, the maximum increase and limitations thereon shall be
2336
stated.
2337
(5)(a) A statement in conspicuous type describing whether
2338
the cooperative is created and being sold as fee simple interests
2339
or as leasehold interests. If the cooperative is created or being
2340
sold on a leasehold, the location of the lease in the disclosure
2341
materials shall be stated.
2342
(b) If timeshare estates are or may be created with respect
2343
to any unit in the cooperative, a statement in conspicuous type
2344
stating that timeshare estates are created and being sold in such
2345
specified units in the cooperative.
2346
(6) A description of the recreational and other common
2347
areas that will be used only by unit owners of the cooperative,
2348
including, but not limited to, the following:
2349
(a) Each room and its intended purposes, location,
2350
approximate floor area, and capacity in numbers of people.
2351
(b) Each swimming pool, as to its general location,
2352
approximate size and depths, approximate deck size and capacity,
2353
and whether heated.
2354
(c) Additional facilities, as to the number of each
2355
facility, its approximate location, approximate size, and
2356
approximate capacity.
2357
(d) A general description of the items of personal property
2358
and the approximate number of each item of personal property that
2359
the developer is committing to furnish for each room or other
2360
facility or, in the alternative, a representation as to the
2361
minimum amount of expenditure that will be made to purchase the
2362
personal property for the facility.
2363
(e) The estimated date when each room or other facility
2364
will be available for use by the unit owners.
2365
(f)1. An identification of each room or other facility to
2366
be used by unit owners that will not be owned by the unit owners
2367
or the association;
2368
2. A reference to the location in the disclosure materials
2369
of the lease or other agreements providing for the use of those
2370
facilities; and
2371
3. A description of the terms of the lease or other
2372
agreements, including the length of the term; the rent payable,
2373
directly or indirectly, by each unit owner, and the total rent
2374
payable to the lessor, stated in monthly and annual amounts for
2375
the entire term of the lease; and a description of any option to
2376
purchase the property leased under any such lease, including the
2377
time the option may be exercised, the purchase price or how it is
2378
to be determined, the manner of payment, and whether the option
2379
may be exercised for a unit owner's share or only as to the
2380
entire leased property.
2381
(g) A statement as to whether the developer may provide
2382
additional facilities not described above, their general
2383
locations and types, improvements or changes that may be made,
2384
the approximate dollar amount to be expended, and the maximum
2385
additional common expense or cost to the individual unit owners
2386
that may be charged during the first annual period of operation
2387
of the modified or added facilities.
2388
2389
Descriptions as to locations, areas, capacities, numbers,
2390
volumes, or sizes may be stated as approximations or minimums.
2391
(7) A description of the recreational and other facilities
2392
that will be used in common with other cooperatives, community
2393
associations, or planned developments which require the payment
2394
of the maintenance and expenses of such facilities, either
2395
directly or indirectly, by the unit owners. The description shall
2396
include, but not be limited to, the following:
2397
(a) Each building and facility committed to be built.
2398
(b) Facilities not committed to be built except under
2399
certain conditions, and a statement of those conditions or
2400
contingencies.
2401
(c) As to each facility committed to be built, or which
2402
will be committed to be built upon the happening of one of the
2403
conditions in paragraph (b), a statement of whether it will be
2404
owned by the unit owners having the use thereof or by an
2405
association or other entity which will be controlled by them, or
2406
others, and the location in the exhibits of the lease or other
2407
document providing for use of those facilities.
2408
(d) The year in which each facility will be available for
2409
use by the unit owners or, in the alternative, the maximum number
2410
of unit owners in the project at the time each of all of the
2411
facilities is committed to be completed.
2412
(e) A general description of the items of personal
2413
property, and the approximate number of each item of personal
2414
property, that the developer is committing to furnish for each
2415
room or other facility or, in the alternative, a representation
2416
as to the minimum amount of expenditure that will be made to
2417
purchase the personal property for the facility.
2418
(f) If there are leases, a description thereof, including
2419
the length of the term, the rent payable, and a description of
2420
any option to purchase.
2421
2422
Descriptions shall include location, areas, capacities, numbers,
2423
volumes, or sizes and may be stated as approximations or
2424
minimums.
2425
(8) Recreation lease or associated club membership:
2426
(a) If any recreational facilities or other common areas
2427
offered by the developer and available to, or to be used by, unit
2428
owners are to be leased or have club membership associated, the
2429
following statement in conspicuous type shall be included: THERE
2430
IS A RECREATIONAL FACILITIES LEASE ASSOCIATED WITH THIS
2431
COOPERATIVE; or, THERE IS A CLUB MEMBERSHIP ASSOCIATED WITH THIS
2432
COOPERATIVE. There shall be a reference to the location in the
2433
disclosure materials where the recreation lease or club
2434
membership is described in detail.
2435
(b) If it is mandatory that unit owners pay a fee, rent,
2436
dues, or other charges under a recreational facilities lease or
2437
club membership for the use of facilities, there shall be in
2438
conspicuous type the applicable statement:
2439
1. MEMBERSHIP IN THE RECREATIONAL FACILITIES CLUB IS
2440
MANDATORY FOR UNIT OWNERS; or
2441
2. UNIT OWNERS ARE REQUIRED, AS A CONDITION OF OWNERSHIP,
2442
TO BE LESSEES UNDER THE RECREATIONAL FACILITIES LEASE; or
2443
3. UNIT OWNERS ARE REQUIRED TO PAY THEIR SHARE OF THE COSTS
2444
AND EXPENSES OF MAINTENANCE, MANAGEMENT, UPKEEP, REPLACEMENT,
2445
RENT, AND FEES UNDER THE RECREATIONAL FACILITIES LEASE (OR THE
2446
OTHER INSTRUMENTS PROVIDING THE FACILITIES); or
2447
4. A similar statement of the nature of the organization or
2448
manner in which the use rights are created, and that unit owners
2449
are required to pay.
2450
2451
Immediately following the applicable statement, the location in
2452
the disclosure materials where the development is described in
2453
detail shall be stated.
2454
(c) If the developer, or any other person other than the
2455
unit owners and other persons having use rights in the
2456
facilities, reserves, or is entitled to receive, any rent, fee,
2457
or other payment for the use of the facilities, then there shall
2458
be the following statement in conspicuous type: THE UNIT OWNERS
2459
OR THE ASSOCIATION(S) MUST PAY RENT OR LAND USE FEES FOR
2460
RECREATIONAL OR OTHER COMMON AREAS. Immediately following this
2461
statement, the location in the disclosure materials where the
2462
rent or land use fees are described in detail shall be stated.
2463
(d) If, in any recreation format, whether leasehold, club,
2464
or other, any person other than the association has the right to
2465
a lien on the units to secure the payment of assessments, rent,
2466
or other exactions, there shall appear a statement in conspicuous
2467
type in substantially the following form:
2468
1. THERE IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO
2469
SECURE THE PAYMENT OF RENT AND OTHER EXACTIONS UNDER THE
2470
RECREATION LEASE. THE UNIT OWNER'S FAILURE TO MAKE THESE PAYMENTS
2471
MAY RESULT IN FORECLOSURE OF THE LIEN; or
2472
2. THERE IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO
2473
SECURE THE PAYMENT OF ASSESSMENTS OR OTHER EXACTIONS COMING DUE
2474
FOR THE USE, MAINTENANCE, UPKEEP, OR REPAIR OF THE RECREATIONAL
2475
OR COMMONLY USED AREAS. THE UNIT OWNER'S FAILURE TO MAKE THESE
2476
PAYMENTS MAY RESULT IN FORECLOSURE OF THE LIEN.
2477
2478
Immediately following the applicable statement, the location in
2479
the disclosure materials where the lien or lien right is
2480
described in detail shall be stated.
2481
(9) If the developer or any other person has the right to
2482
increase or add to the recreational facilities at any time after
2483
the establishment of the cooperative whose unit owners have use
2484
rights therein, without the consent of the unit owners or
2485
associations being required, there shall appear a statement in
2486
conspicuous type in substantially the following form:
2487
RECREATIONAL FACILITIES MAY BE EXPANDED OR ADDED WITHOUT CONSENT
2488
OF UNIT OWNERS OR THE ASSOCIATION(S). Immediately following this
2489
statement, the location in the disclosure materials where such
2490
reserved rights are described shall be stated.
2491
(10) A statement of whether the developer's plan includes a
2492
program of leasing units rather than selling them, or leasing
2493
units and selling them subject to such leases. If so, there shall
2494
be a description of the plan, including the number and
2495
identification of the units and the provisions and term of the
2496
proposed leases, and a statement in boldfaced type that: THE
2497
UNITS MAY BE TRANSFERRED SUBJECT TO A LEASE.
2498
(11) The arrangements for management of the association and
2499
maintenance and operation of the cooperative property and of
2500
other property that will serve the unit owners of the cooperative
2501
property, and a description of the management contract and all
2502
other contracts for these purposes having a term in excess of 1
2503
year, including the following:
2504
(a) The names of contracting parties.
2505
(b) The term of the contract.
2506
(c) The nature of the services included.
2507
(d) The compensation, stated on a monthly and annual basis,
2508
and provisions for increases in the compensation.
2509
(e) A reference to the volumes and pages of the cooperative
2510
documents and of the exhibits containing copies of such
2511
contracts.
2512
2513
Copies of all described contracts shall be attached as exhibits.
2514
If there is a contract for the management of the cooperative
2515
property, then a statement in conspicuous type in substantially
2516
the following form shall appear, identifying the proposed or
2517
existing contract manager: THERE IS (IS TO BE) A CONTRACT FOR THE
2518
MANAGEMENT OF THE COOPERATIVE PROPERTY WITH (NAME OF THE CONTRACT
2519
MANAGER). Immediately following this statement, the location in
2520
the disclosure materials of the contract for management of the
2521
cooperative property shall be stated.
2522
(12) If the developer or any other person or persons other
2523
than the unit owners has the right to retain control of the board
2524
of administration of the association for a period of time which
2525
can exceed 1 year after the closing of the sale of a majority of
2526
the units in that cooperative to persons other than successors or
2527
alternate developers, then a statement in conspicuous type in
2528
substantially the following form shall be included: THE DEVELOPER
2529
(OR OTHER PERSON) HAS THE RIGHT TO RETAIN CONTROL OF THE
2530
ASSOCIATION AFTER A MAJORITY OF THE UNITS HAVE BEEN SOLD.
2531
Immediately following this statement, the location in the
2532
disclosure materials where this right to control is described in
2533
detail shall be stated.
2534
(13) If there are any restrictions upon the sale, transfer,
2535
conveyance, or leasing of a unit, then a statement in conspicuous
2536
type in substantially the following form shall be included: THE
2537
SALE, LEASE, OR TRANSFER OF UNITS IS RESTRICTED OR CONTROLLED.
2538
Immediately following this statement, the location in the
2539
disclosure materials where the restriction, limitation, or
2540
control on the sale, lease, or transfer of units is described in
2541
detail shall be stated.
2542
(14) If the cooperative is part of a phase project, the
2543
following shall be stated:
2544
(a) A statement in conspicuous type in substantially the
2545
following form shall be included: THIS IS A PHASE COOPERATIVE.
2546
ADDITIONAL LAND AND UNITS MAY BE ADDED TO THIS COOPERATIVE.
2547
Immediately following this statement, the location in the
2548
disclosure materials where the phasing is described shall be
2549
stated.
2550
(b) A summary of the provisions of the declaration
2551
providing for the phasing.
2552
(c) A statement as to whether or not residential buildings
2553
and units which are added to the cooperative may be substantially
2554
different from the residential buildings and units originally in
2555
the cooperative, and, if the added residential buildings and
2556
units may be substantially different, there shall be a general
2557
description of the extent to which such added residential
2558
buildings and units may differ, and a statement in conspicuous
2559
type in substantially the following form shall be included:
2560
BUILDINGS AND UNITS WHICH ARE ADDED TO THE COOPERATIVE MAY BE
2561
SUBSTANTIALLY DIFFERENT FROM THE OTHER BUILDINGS AND UNITS IN THE
2562
COOPERATIVE. Immediately following this statement, the location
2563
in the disclosure materials where the extent to which added
2564
residential buildings and units may substantially differ is
2565
described shall be stated.
2566
(d) A statement of the maximum number of buildings
2567
containing units, the maximum and minimum number of units in each
2568
building, the maximum number of units, and the minimum and
2569
maximum square footage of the units that may be contained within
2570
each parcel of land which may be added to the cooperative.
2571
(15) If the cooperative is created by conversion of
2572
existing improvements, the following information shall be stated:
2573
(a) The information required by s. 719.616.
2574
(b) A caveat that there are no express warranties unless
2575
they are stated in writing by the developer.
2576
(16) A summary of the restrictions, if any, to be imposed
2577
on units concerning the use of any of the cooperative property,
2578
including statements as to whether there are restrictions upon
2579
children and pets, and reference to the volumes and pages of the
2580
cooperative documents where such restrictions are found, or if
2581
such restrictions are contained elsewhere, then a copy of the
2582
documents containing the restrictions shall be attached as an
2583
exhibit.
2584
(17) If there is any land that is offered by the developer
2585
for use by the unit owners and that is neither owned by them nor
2586
leased to them, the association, or any entity controlled by unit
2587
owners and other persons having the use rights to such land, a
2588
statement shall be made as to how such land will serve the
2589
cooperative. If any part of such land will serve the cooperative,
2590
the statement shall describe the land and the nature and term of
2591
service, and the cooperative documents or other instrument
2592
creating such servitude shall be included as an exhibit.
2593
(18) The manner in which utility and other services,
2594
including, but not limited to, sewage and waste disposal, water
2595
supply, and storm drainage, will be provided and the person or
2596
entity furnishing them.
2597
(19) An explanation of the manner in which the
2598
apportionment of common expenses and ownership of the common
2599
areas have been determined.
2600
(20) An estimated operating budget for the cooperative and
2601
the association, and a schedule of the unit owner's expenses
2602
shall be attached as an exhibit and shall contain the following
2603
information:
2604
(a) The estimated monthly and annual expenses of the
2605
cooperative and the association that are collected from unit
2606
owners by assessments.
2607
(b) The estimated monthly and annual expenses of each unit
2608
owner for a unit, other than assessments payable to the
2609
association, payable by the unit owner to persons or entities
2610
other than the association, and the total estimated monthly and
2611
annual expense. There may be excluded from this estimate expenses
2612
that are personal to unit owners, which are not uniformly
2613
incurred by all unit owners, or which are not provided for or
2614
contemplated by the cooperative documents, including, but not
2615
limited to, the costs of private telephone; maintenance of the
2616
interior of cooperative units, which is not the obligation of the
2617
association; maid or janitorial services privately contracted for
2618
by the unit owners; utility bills billed directly to each unit
2619
owner for utility services to his or her unit; insurance premiums
2620
other than those incurred for policies obtained by the
2621
cooperative; and similar personal expenses of the unit owner. A
2622
unit owner's estimated payments for assessments shall also be
2623
stated in the estimated amounts for the times when they will be
2624
due.
2625
(c) The estimated items of expenses of the cooperative and
2626
the association, except as excluded under paragraph (b),
2627
including, but not limited to, the following items, which shall
2628
be stated either as an association expense collectible by
2629
assessments or as unit owners' expenses payable to persons other
2630
than the association:
2631
1. Expenses for the association and cooperative:
2632
a. Administration of the association.
2633
b. Management fees.
2634
c. Maintenance.
2635
d. Rent for recreational and other commonly used areas.
2636
e. Taxes upon association property.
2637
f. Taxes upon leased areas.
2638
g. Insurance.
2639
h. Security provisions.
2640
i. Other expenses.
2641
j. Operating capital.
2642
k. Reserves.
2643
l. Fee payable to the division.
2644
2. Expenses for a unit owner:
2645
a. Rent for the unit, if subject to a lease.
2646
b. Rent payable by the unit owner directly to the lessor or
2647
agent under any recreational lease or lease for the use of
2648
commonly used areas, which use and payment are a mandatory
2649
condition of ownership and are not included in the common expense
2650
or assessments for common maintenance paid by the unit owners to
2651
the association.
2652
(d) The following statement in conspicuous type: THE BUDGET
2653
CONTAINED IN THIS OFFERING CIRCULAR HAS BEEN PREPARED IN
2654
ACCORDANCE WITH THE COOPERATIVE ACT AND IS A GOOD FAITH ESTIMATE
2655
ONLY AND REPRESENTS AN APPROXIMATION OF FUTURE EXPENSES BASED ON
2656
FACTS AND CIRCUMSTANCES EXISTING AT THE TIME OF ITS PREPARATION.
2657
ACTUAL COSTS OF SUCH ITEMS MAY EXCEED THE ESTIMATED COSTS. SUCH
2658
CHANGES IN COST DO NOT CONSTITUTE MATERIAL ADVERSE CHANGES IN THE
2659
OFFERING.
2660
(e) Each budget for an association prepared by a developer
2661
consistent with this subsection shall be prepared in good faith
2662
and shall reflect accurate estimated amounts for the required
2663
items in paragraph (c) at the time of the filing of the offering
2664
circular with the division, and subsequent increased amounts of
2665
any item included in the association's estimated budget that are
2666
beyond the control of the developer shall not be considered an
2667
amendment that would give rise to rescission rights set forth in
2668
s. 719.503(1)(a) or (b), nor shall such increases modify, void,
2669
or otherwise affect any guarantee of the developer contained in
2670
the offering circular or any purchase contract. It is the intent
2671
of this paragraph to clarify existing law.
2672
(f) The estimated amounts shall be stated for a period of
2673
at least 12 months and may distinguish between the period prior
2674
to the time unit owners other than the developer elect a majority
2675
of the board of administration and the period after that date.
2676
(21) A schedule of estimated closing expenses to be paid by
2677
a buyer or lessee of a unit and a statement of whether title
2678
opinion or title insurance policy is available to the buyer and,
2679
if so, at whose expense.
2680
(22) The identity of the developer and the chief operating
2681
officer or principal directing the creation and sale of the
2682
cooperative and a statement of its and his or her experience in
2683
this field.
2684
(23) Copies of the following, to the extent they are
2685
applicable, shall be included as exhibits:
2686
(a) The cooperative documents, or the proposed cooperative
2687
documents if the documents have not been recorded.
2688
(b) The articles of incorporation creating the association.
2689
(c) The bylaws of the association.
2690
(d) The ground lease or other underlying lease of the
2691
cooperative.
2692
(e) The management agreement and all maintenance and other
2693
contracts for management of the association and operation of the
2694
cooperative and facilities used by the unit owners having a
2695
service term in excess of 1 year.
2696
(f) The estimated operating budget for the cooperative and
2697
the required schedule of unit owners' expenses.
2698
(g) A copy of the floor plan of the unit and the plot plan
2699
showing the location of the residential buildings and the
2700
recreation and other common areas.
2701
(h) The lease of recreational and other facilities that
2702
will be used only by unit owners of the subject cooperative.
2703
(i) The lease of facilities used by owners and others.
2704
(j) The form of unit lease, if the offer is of a leasehold.
2705
(k) A declaration of servitude of properties serving the
2706
cooperative but not owned by unit owners or leased to them or the
2707
association.
2708
(l) The statement of condition of the existing building or
2709
buildings, if the offering is of units in an operation being
2710
converted to cooperative ownership.
2711
(m) The statement of inspection for termite damage and
2712
treatment of the existing improvements, if the cooperative is a
2713
conversion.
2714
(n) The form of agreement for sale or lease of units.
2715
(o) A copy of the agreement for escrow of payments made to
2716
the developer prior to closing.
2717
(p) A copy of the documents containing any restrictions on
2718
use of the property required by subsection (16).
2719
(24) Any prospectus or offering circular complying with the
2720
provisions of former ss. 711.69 and 711.802 may continue to be
2721
used without amendment, or may be amended to comply with the
2722
provisions of this chapter.
2723
(25) A brief narrative description of the location and
2724
effect of all existing and intended easements located or to be
2725
located on the cooperative property other than those in the
2726
declaration.
2727
(26) If the developer is required by state or local
2728
authorities to obtain acceptance or approval of any dock or
2729
marina facility intended to serve the cooperative, a copy of such
2730
acceptance or approval acquired by the time of filing with the
2731
division pursuant to s. 719.502 or a statement that such
2732
acceptance has not been acquired or received.
2733
(27) Evidence demonstrating that the developer has an
2734
ownership, leasehold, or contractual interest in the land upon
2735
which the cooperative is to be developed.
2736
Section 48. Section 719.508, Florida Statutes, is amended
2737
to read:
2738
719.508 Regulation by Division of Hotels and
2739
Restaurants.--In addition to the authority, regulation, or
2740
control exercised by the Division of Florida Land Sales,
2741
Condominiums, Timeshares, and Mobile Homes pursuant to this act
2742
with respect to cooperatives, buildings included in a cooperative
2743
property shall be subject to the authority, regulation, or
2744
control of the Division of Hotels and Restaurants of the
2745
Department of Business and Professional Regulation, to the extent
2746
provided for in chapters 399 and 509.
2747
Section 49. Paragraph (a) of subsection (2) of section
2748
719.608, Florida Statutes, is amended to read:
2749
719.608 Notice of intended conversion; time of delivery;
2750
content.--
2751
(2)(a) Each notice of intended conversion shall be dated
2752
and in writing. The notice shall contain the following statement,
2753
with the phrases of the following statement which appear in upper
2754
case printed in conspicuous type:
2755
2756
These apartments are being converted to cooperative by
2757
(name of developer) , the developer.
2758
1. YOU MAY REMAIN AS A RESIDENT UNTIL THE EXPIRATION OF
2759
YOUR RENTAL AGREEMENT. FURTHER, YOU MAY EXTEND YOUR RENTAL
2760
AGREEMENT AS FOLLOWS:
2761
a. If you have continuously been a resident of these
2762
apartments during the last 180 days and your rental agreement
2763
expires during the next 270 days, you may extend your rental
2764
agreement for up to 270 days after the date of this notice.
2765
b. If you have not been a continuous resident of these
2766
apartments for the last 180 days and your rental agreement
2767
expires during the next 180 days, you may extend your rental
2768
agreement for up to 180 days after the date of this notice.
2769
c. IN ORDER FOR YOU TO EXTEND YOUR RENTAL AGREEMENT, YOU
2770
MUST GIVE THE DEVELOPER WRITTEN NOTICE WITHIN 45 DAYS AFTER THE
2771
DATE OF THIS NOTICE.
2772
2. IF YOUR RENTAL AGREEMENT EXPIRES IN THE NEXT 45 DAYS,
2773
you may extend your rental agreement for up to 45 days after the
2774
date of this notice while you decide whether to extend your
2775
rental agreement as explained above. To do so, you must notify
2776
the developer in writing. You will then have the full 45 days to
2777
decide whether to extend your rental agreement as explained
2778
above.
2779
3. During the extension of your rental agreement you will
2780
be charged the same rent that you are now paying.
2781
4. YOU MAY CANCEL YOUR RENTAL AGREEMENT AND ANY EXTENSION
2782
OF THE RENTAL AGREEMENT AS FOLLOWS:
2783
a. If your rental agreement began or was extended or
2784
renewed after May 1, 1980, and your rental agreement, including
2785
extensions and renewals, has an unexpired term of 180 days or
2786
less, you may cancel your rental agreement upon 30 days' written
2787
notice and move. Also, upon 30 days' written notice, you may
2788
cancel any extension of the rental agreement.
2789
b. If your rental agreement was not begun or was not
2790
extended or renewed after May 1, 1980, you may not cancel the
2791
rental agreement without the consent of the developer. If your
2792
rental agreement, including extensions and renewals, has an
2793
unexpired term of 180 days or less, you may, however, upon 30
2794
days' written notice cancel any extension of the rental
2795
agreement.
2796
5. All notices must be given in writing and sent by mail,
2797
return receipt requested, or delivered in person to the developer
2798
at this address: (name and address of developer) .
2799
6. If you have continuously been a resident of these
2800
apartments during the last 180 days:
2801
a. You have the right to purchase your apartment and will
2802
have 45 days to decide whether to purchase. If you do not buy the
2803
unit at that price and the unit is later offered at a lower
2804
price, you will have the opportunity to buy the unit at the lower
2805
price. However, in all events your right to purchase the unit
2806
ends when the rental agreement or any extension of the rental
2807
agreement ends or when you waive this right in writing.
2808
b. Within 90 days you will be provided purchase information
2809
relating to your apartment, including the price of your unit and
2810
the condition of the building. If you do not receive this
2811
information within 90 days, your rental agreement and any
2812
extension will be extended 1 day for each day over 90 days until
2813
you are given the purchase information. If you do not want this
2814
rental agreement extension, you must notify the developer in
2815
writing.
2816
7. If you have any questions regarding this conversion or
2817
the Cooperative Act, you may contact the developer or the state
2818
agency which regulates cooperatives: The Division of Florida Land
2819
Sales, Condominiums, Timeshares, and Mobile Homes, (Tallahassee
2820
address and telephone number of division) .
2821
Section 50. Subsection (7) of section 720.301, Florida
2822
Statutes, is amended to read:
2823
720.301 Definitions.--As used in this chapter, the term:
2824
(7) "Division" means the Division of Florida Land Sales,
2825
Condominiums, Timeshares, and Mobile Homes in the Department of
2826
Business and Professional Regulation.
2827
Section 51. Subsection (2) of section 720.401, Florida
2828
Statutes, is amended to read:
2829
720.401 Prospective purchasers subject to association
2830
membership requirement; disclosure required; covenants;
2831
assessments; contract cancellation.--
2832
(2) This section does not apply to any association
2833
regulated under chapter 718, chapter 719, chapter 721, or chapter
2834
723 or to a subdivider registered under chapter 498; and also
2835
does not apply if disclosure regarding the association is
2836
otherwise made in connection with the requirements of chapter
2837
718, chapter 719, chapter 721, or chapter 723.
2838
Section 52. Subsection (11) of section 721.05, Florida
2839
Statutes, is amended to read:
2840
721.05 Definitions.--As used in this chapter, the term:
2841
(11) "Division" means the Division of Florida Land Sales,
2842
Condominiums, Timeshares, and Mobile Homes of the Department of
2843
Business and Professional Regulation.
2844
Section 53. Paragraph (d) of subsection (2) of section
2845
721.07, Florida Statutes, is amended to read:
2846
721.07 Public offering statement.--Prior to offering any
2847
timeshare plan, the developer must submit a filed public offering
2848
statement to the division for approval as prescribed by s.
2850
such filing, any contract regarding the sale of that timeshare
2851
plan is subject to cancellation by the purchaser pursuant to s.
2852
2853
(2)
2854
(d) A developer shall have the authority to deliver to
2855
purchasers any purchaser public offering statement that is not
2856
yet approved by the division, provided that the following shall
2857
apply:
2858
1. At the time the developer delivers an unapproved
2859
purchaser public offering statement to a purchaser pursuant to
2860
this paragraph, the developer shall deliver a fully completed and
2861
executed copy of the purchase contract required by s. 721.06 that
2862
contains the following statement in conspicuous type in
2863
substantially the following form which shall replace the
2864
statements required by s. 721.06(1)(g):
2865
2866
The developer is delivering to you a public offering statement
2867
that has been filed with but not yet approved by the Division of
2868
Florida Land Sales, Condominiums, Timeshares, and Mobile Homes.
2869
Any revisions to the unapproved public offering statement you
2870
have received must be delivered to you, but only if the revisions
2871
materially alter or modify the offering in a manner adverse to
2872
you. After the division approves the public offering statement,
2873
you will receive notice of the approval from the developer and
2874
the required revisions, if any.
2875
2876
Your statutory right to cancel this transaction without any
2877
penalty or obligation expires 10 calendar days after the date you
2878
signed your purchase contract or the date on which you receive
2879
the last of all documents required to be given to you pursuant to
2880
section 721.07(6), Florida Statutes, or 10 calendar days after
2881
you receive revisions required to be delivered to you, if any,
2882
whichever is later. If you decide to cancel this contract, you
2883
must notify the seller in writing of your intent to cancel. Your
2884
notice of cancellation shall be effective upon the date sent and
2885
shall be sent to (Name of Seller) at (Address of Seller) .
2886
Any attempt to obtain a waiver of your cancellation right is void
2887
and of no effect. While you may execute all closing documents in
2888
advance, the closing, as evidenced by delivery of the deed or
2889
other document, before expiration of your 10-day cancellation
2890
period, is prohibited.
2891
2892
2. After receipt of approval from the division and prior to
2893
closing, if any revisions made to the documents contained in the
2894
purchaser public offering statement materially alter or modify
2895
the offering in a manner adverse to a purchaser, the developer
2896
shall send the purchaser such revisions together with a notice
2897
containing a statement in conspicuous type in substantially the
2898
following form:
2899
2900
The unapproved public offering statement previously delivered to
2901
you, together with the enclosed revisions, has been approved by
2902
the Division of Florida Land Sales, Condominiums, Timeshares, and
2903
Mobile Homes. Accordingly, your cancellation right expires 10
2904
calendar days after you sign your purchase contract or 10
2905
calendar days after you receive these revisions, whichever is
2906
later. If you have any questions regarding your cancellation
2907
rights, you may contact the division at [insert division's
2908
current address].
2909
2910
3. After receipt of approval from the division and prior to
2911
closing, if no revisions have been made to the documents
2912
contained in the unapproved purchaser public offering statement,
2913
or if such revisions do not materially alter or modify the
2914
offering in a manner adverse to a purchaser, the developer shall
2915
send the purchaser a notice containing a statement in conspicuous
2916
type in substantially the following form:
2917
2918
The unapproved public offering statement previously delivered to
2919
you has been approved by the Division of Florida Land Sales,
2920
Condominiums, Timeshares, and Mobile Homes. Revisions made to the
2921
unapproved public offering statement, if any, are either not
2922
required to be delivered to you or are not deemed by the
2923
developer, in its opinion, to materially alter or modify the
2924
offering in a manner that is adverse to you. Accordingly, your
2925
cancellation right expired 10 days after you signed your purchase
2926
contract. A complete copy of the approved public offering
2927
statement is available through the managing entity for inspection
2928
as part of the books and records of the plan. If you have any
2929
questions regarding your cancellation rights, you may contact the
2930
division at [insert division's current address].
2931
Section 54. Subsection (8) of section 721.08, Florida
2932
Statutes, is amended to read:
2933
721.08 Escrow accounts; nondisturbance instruments;
2934
alternate security arrangements; transfer of legal title.--
2935
(8) An escrow agent holding escrowed funds pursuant to this
2936
chapter that have not been claimed for a period of 5 years after
2937
the date of deposit shall make at least one reasonable attempt to
2938
deliver such unclaimed funds to the purchaser who submitted such
2939
funds to escrow. In making such attempt, an escrow agent is
2940
entitled to rely on a purchaser's last known address as set forth
2941
in the books and records of the escrow agent and is not required
2942
to conduct any further search for the purchaser. If an escrow
2943
agent's attempt to deliver unclaimed funds to any purchaser is
2944
unsuccessful, the escrow agent may deliver such unclaimed funds
2945
to the division and the division shall deposit such unclaimed
2946
funds in the Division of Florida Land Sales, Condominiums,
2947
Timeshares, and Mobile Homes Trust Fund, 30 days after giving
2948
notice in a publication of general circulation in the county in
2949
which the timeshare property containing the purchaser's timeshare
2950
interest is located. The purchaser may claim the same at any time
2951
prior to the delivery of such funds to the division. After
2952
delivery of such funds to the division, the purchaser shall have
2953
no more rights to the unclaimed funds. The escrow agent shall not
2954
be liable for any claims from any party arising out of the escrow
2955
agent's delivery of the unclaimed funds to the division pursuant
2956
to this section.
2957
Section 55. Section 721.26, Florida Statutes, is amended to
2958
read:
2959
721.26 Regulation by division.--The division has the power
2960
to enforce and ensure compliance with the provisions of this
2961
chapter, except for parts III and IV, using the powers provided
2962
in this chapter, as well as the powers prescribed in chapters
2963
498, 718, and 719. In performing its duties, the division shall
2964
have the following powers and duties:
2965
(1) To aid in the enforcement of this chapter, or any
2966
division rule adopted or order promulgated or issued pursuant to
2967
this chapter, the division may make necessary public or private
2968
investigations within or outside this state to determine whether
2969
any person has violated or is about to violate this chapter, or
2970
any division rule adopted or order promulgated or issued pursuant
2971
to this chapter.
2972
(2) The division may require or permit any person to file a
2973
written statement under oath or otherwise, as the division
2974
determines, as to the facts and circumstances concerning a matter
2975
under investigation.
2976
(3) For the purpose of any investigation under this
2977
chapter, the director of the division or any officer or employee
2978
designated by the director may administer oaths or affirmations,
2979
subpoena witnesses and compel their attendance, take evidence,
2980
and require the production of any matter which is relevant to the
2981
investigation, including the identity, existence, description,
2982
nature, custody, condition, and location of any books, documents,
2983
or other tangible things and the identity and location of persons
2984
having knowledge of relevant facts or any other matter reasonably
2985
calculated to lead to the discovery of material evidence. Failure
2986
to obey a subpoena or to answer questions propounded by the
2987
investigating officer and upon reasonable notice to all persons
2988
affected thereby shall be a violation of this chapter. In
2989
addition to the other enforcement powers authorized in this
2990
subsection, the division may, at its discretion, apply to the
2991
circuit court for an order compelling compliance.
2992
(4) The division may prepare and disseminate a prospectus
2993
and other information to assist prospective purchasers, sellers,
2994
and managing entities of timeshare plans in assessing the rights,
2995
privileges, and duties pertaining thereto.
2996
(5) Notwithstanding any remedies available to purchasers,
2997
if the division has reasonable cause to believe that a violation
2998
of this chapter, or of any division rule adopted or order
2999
promulgated or issued pursuant to this chapter, has occurred, the
3000
division may institute enforcement proceedings in its own name
3001
against any regulated party, as such term is defined in this
3002
subsection:
3003
(a)1. "Regulated party," for purposes of this section,
3004
means any developer, exchange company, seller, managing entity,
3005
owners' association, owners' association director, owners'
3006
association officer, manager, management firm, escrow agent,
3007
trustee, any respective assignees or agents, or any other person
3008
having duties or obligations pursuant to this chapter.
3009
2. Any person who materially participates in any offer or
3010
disposition of any interest in, or the management or operation
3011
of, a timeshare plan in violation of this chapter or relevant
3012
rules involving fraud, deception, false pretenses,
3013
misrepresentation, or false advertising or the disbursement,
3014
concealment, or diversion of any funds or assets, which conduct
3015
adversely affects the interests of a purchaser, and which person
3016
directly or indirectly controls a regulated party or is a general
3017
partner, officer, director, agent, or employee of such regulated
3018
party, shall be jointly and severally liable under this
3019
subsection with such regulated party, unless such person did not
3020
know, and in the exercise of reasonable care could not have
3021
known, of the existence of the facts giving rise to the violation
3022
of this chapter. A right of contribution shall exist among
3023
jointly and severally liable persons pursuant to this paragraph.
3024
(b) The division may permit any person whose conduct or
3025
actions may be under investigation to waive formal proceedings
3026
and enter into a consent proceeding whereby an order, rule, or
3027
letter of censure or warning, whether formal or informal, may be
3028
entered against that person.
3029
(c) The division may issue an order requiring a regulated
3030
party to cease and desist from an unlawful practice under this
3031
chapter and take such affirmative action as in the judgment of
3032
the division will carry out the purposes of this chapter.
3033
(d)1. The division may bring an action in circuit court for
3034
declaratory or injunctive relief or for other appropriate relief,
3035
including restitution.
3036
2. The division shall have broad authority and discretion
3037
to petition the circuit court to appoint a receiver with respect
3038
to any managing entity which fails to perform its duties and
3039
obligations under this chapter with respect to the operation of a
3040
timeshare plan. The circumstances giving rise to an appropriate
3041
petition for receivership under this subparagraph include, but
3042
are not limited to:
3043
a. Damage to or destruction of any of the accommodations or
3044
facilities of a timeshare plan, where the managing entity has
3045
failed to repair or reconstruct same.
3046
b. A breach of fiduciary duty by the managing entity,
3047
including, but not limited to, undisclosed self-dealing or
3048
failure to timely assess, collect, or disburse the common
3049
expenses of the timeshare plan.
3050
c. Failure of the managing entity to operate the timeshare
3051
plan in accordance with the timeshare instrument and this
3052
chapter.
3053
3054
If, under the circumstances, it appears that the events giving
3055
rise to the petition for receivership cannot be reasonably and
3056
timely corrected in a cost-effective manner consistent with the
3057
timeshare instrument, the receiver may petition the circuit court
3058
to implement such amendments or revisions to the timeshare
3059
instrument as may be necessary to enable the managing entity to
3060
resume effective operation of the timeshare plan, or to enter an
3061
order terminating the timeshare plan, or to enter such further
3062
orders regarding the disposition of the timeshare property as the
3063
court deems appropriate, including the disposition and sale of
3064
the timeshare property held by the owners' association or the
3065
purchasers. In the event of a receiver's sale, all rights, title,
3066
and interest held by the owners' association or any purchaser
3067
shall be extinguished and title shall vest in the buyer. This
3068
provision applies to timeshare estates, personal property
3069
timeshare interests, and timeshare licenses. All reasonable costs
3070
and fees of the receiver relating to the receivership shall
3071
become common expenses of the timeshare plan upon order of the
3072
court.
3073
3. The division may revoke its approval of any filing for
3074
any timeshare plan for which a petition for receivership has been
3075
filed pursuant to this paragraph.
3076
(e)1. The division may impose a penalty against any
3077
regulated party for a violation of this chapter or any rule
3078
adopted thereunder. A penalty may be imposed on the basis of each
3079
day of continuing violation, but in no event may the penalty for
3080
any offense exceed $10,000. All accounts collected shall be
3081
deposited with the Chief Financial Officer to the credit of the
3082
Division of Florida Land Sales, Condominiums, Timeshares, and
3083
Mobile Homes Trust Fund.
3084
2.a. If a regulated party fails to pay a penalty, the
3085
division shall thereupon issue an order directing that such
3086
regulated party cease and desist from further operation until
3087
such time as the penalty is paid; or the division may pursue
3088
enforcement of the penalty in a court of competent jurisdiction.
3089
b. If an owners' association or managing entity fails to
3090
pay a civil penalty, the division may pursue enforcement in a
3091
court of competent jurisdiction.
3092
(f) In order to permit the regulated party an opportunity
3093
either to appeal such decision administratively or to seek relief
3094
in a court of competent jurisdiction, the order imposing the
3095
penalty or the cease and desist order shall not become effective
3096
until 20 days after the date of such order.
3097
(g) Any action commenced by the division shall be brought
3098
in the county in which the division has its executive offices or
3099
in the county where the violation occurred.
3100
(h) Notice to any regulated party shall be complete when
3101
delivered by United States mail, return receipt requested, to the
3102
party's address currently on file with the division or to such
3103
other address at which the division is able to locate the party.
3104
Every regulated party has an affirmative duty to notify the
3105
division of any change of address at least 5 business days prior
3106
to such change.
3107
(6) The division has authority to adopt rules pursuant to
3109
of this chapter.
3110
(7)(a) The use of any unfair or deceptive act or practice
3111
by any person in connection with the sales or other operations of
3112
an exchange program or timeshare plan is a violation of this
3113
chapter.
3114
(b) Any violation of the Florida Deceptive and Unfair Trade
3115
Practices Act, ss. 501.201 et seq., relating to the creation,
3116
promotion, sale, operation, or management of any timeshare plan
3117
shall also be a violation of this chapter.
3118
(c) The division may is authorized to institute proceedings
3119
against any such person and take any appropriate action
3120
authorized in this section in connection therewith,
3121
notwithstanding any remedies available to purchasers.
3122
(8) The failure of any person to comply with any order of
3123
the division is a violation of this chapter.
3124
Section 56. Section 721.28, Florida Statutes, is amended to
3125
read:
3126
721.28 Division of Florida Land Sales, Condominiums,
3127
Timeshares, and Mobile Homes Trust Fund.--All funds collected by
3128
the division and any amounts paid as fees or penalties under this
3129
chapter shall be deposited in the State Treasury to the credit of
3130
the Division of Florida Land Sales, Condominiums, Timeshares, and
3132
Section 57. Paragraph (c) of subsection (1) of section
3133
721.301, Florida Statutes, is amended to read:
3134
721.301 Florida Timesharing, Vacation Club, and Hospitality
3135
Program.--
3136
(1)
3137
(c) The director may designate funds from the Division of
3138
Florida Land Sales, Condominiums, Timeshares, and Mobile Homes
3139
Trust Fund, not to exceed $50,000 annually, to support the
3140
projects and proposals undertaken pursuant to paragraph (b). All
3141
state trust funds to be expended pursuant to this section must be
3142
matched equally with private moneys and shall comprise no more
3143
than half of the total moneys expended annually.
3144
Section 58. Section 721.50, Florida Statutes, is amended to
3145
read:
3146
721.50 Short title.--This part may be cited as the
3147
"McAllister Act" in recognition and appreciation for the years of
3148
extraordinary and insightful contributions by Mr. Bryan C.
3149
McAllister, Examinations Supervisor of the former, Division of
3150
Florida Land Sales, Condominiums, and Mobile Homes.
3151
Section 59. Subsection (1) of section 723.003, Florida
3152
Statutes, is amended to read:
3153
723.003 Definitions.--As used in this chapter, the
3154
following words and terms have the following meanings unless
3155
clearly indicated otherwise:
3156
(1) The term "division" means the Division of Florida Land
3157
Sales, Condominiums, Timeshares, and Mobile Homes of the
3158
Department of Business and Professional Regulation.
3159
Section 60. Paragraph (e) of subsection (5) of section
3160
723.006, Florida Statutes, is amended to read:
3161
723.006 Powers and duties of division.--In performing its
3162
duties, the division has the following powers and duties:
3163
(5) Notwithstanding any remedies available to mobile home
3164
owners, mobile home park owners, and homeowners' associations, if
3165
the division has reasonable cause to believe that a violation of
3166
any provision of this chapter or related any rule promulgated
3167
pursuant hereto has occurred, the division may institute
3168
enforcement proceedings in its own name against a developer,
3169
mobile home park owner, or homeowners' association, or its
3170
assignee or agent, as follows:
3171
(e)1. The division may impose a civil penalty against a
3172
mobile home park owner or homeowners' association, or its
3173
assignee or agent, for any violation of this chapter, a properly
3174
adopted promulgated park rule or regulation, or a rule adopted or
3175
regulation promulgated pursuant hereto. A penalty may be imposed
3176
on the basis of each separate violation and, if the violation is
3177
a continuing one, for each day of continuing violation, but in no
3178
event may the penalty for each separate violation or for each day
3179
of continuing violation exceed $5,000. All amounts collected
3180
shall be deposited with the Chief Financial Officer to the credit
3181
of the Division of Florida Land Sales, Condominiums, Timeshares,
3182
and Mobile Homes Trust Fund.
3183
2. If a violator fails to pay the civil penalty, the
3184
division shall thereupon issue an order directing that such
3185
violator cease and desist from further violation until such time
3186
as the civil penalty is paid or may pursue enforcement of the
3187
penalty in a court of competent jurisdiction. If a homeowners'
3188
association fails to pay the civil penalty, the division shall
3189
thereupon pursue enforcement in a court of competent
3190
jurisdiction, and the order imposing the civil penalty or the
3191
cease and desist order shall not become effective until 20 days
3192
after the date of such order. Any action commenced by the
3193
division shall be brought in the county in which the division has
3194
its executive offices or in which the violation occurred.
3195
Section 61. Section 723.009, Florida Statutes, is amended
3196
to read:
3197
723.009 Division of Florida Land Sales, Condominiums,
3198
Timeshares, and Mobile Homes Trust Fund.--All proceeds from the
3199
fees, penalties, and fines imposed pursuant to this chapter shall
3200
be deposited into the Division of Florida Land Sales,
3201
Condominiums, Timeshares, and Mobile Homes Trust Fund created by
3203
Legislature pursuant to chapter 216, may be used to defray the
3204
expenses incurred by the division in administering the provisions
3205
of this chapter.
3206
Section 62. Paragraph (c) of subsection (2) of section
3207
723.0611, Florida Statutes, is amended to read:
3208
723.0611 Florida Mobile Home Relocation Corporation.--
3209
(2)
3210
(c) The corporation shall, for purposes of s. 768.28, be
3211
considered an agency of the state. Agents or employees of the
3212
corporation, members of the board of directors of the
3213
corporation, or representatives of the Division of Florida Land
3214
Sales, Condominiums, Timeshares, and Mobile Homes shall be
3215
considered officers, employees, or agents of the state, and
3216
actions against them and the corporation shall be governed by s.
3217
3218
Section 63. This act shall take effect July 1, 2008.
CODING: Words stricken are deletions; words underlined are additions.