1 | Representative Robaina offered the following: |
2 |
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3 | Amendment (with directory and title amendments) |
4 | Between lines 278 and 279, insert: |
5 | (h) Amendment of bylaws.-- |
6 | 1. The method by which the bylaws may be amended |
7 | consistent with the provisions of this chapter shall be stated. |
8 | If the bylaws fail to provide a method of amendment, the bylaws |
9 | may be amended if the amendment is approved by the owners of not |
10 | less than two-thirds of the voting interests. |
11 | 2. No bylaw shall be revised or amended by reference to |
12 | its title or number only. Proposals to amend existing bylaws |
13 | shall contain the full text of the bylaws to be amended; new |
14 | words shall be inserted in the text underlined, and words to be |
15 | deleted shall be lined through with hyphens. However, if the |
16 | proposed change is so extensive that this procedure would |
17 | hinder, rather than assist, the understanding of the proposed |
18 | amendment, it is not necessary to use underlining and hyphens as |
19 | indicators of words added or deleted, but, instead, a notation |
20 | must be inserted immediately preceding the proposed amendment in |
21 | substantially the following language: "Substantial rewording of |
22 | bylaw. See bylaw _____ for present text." |
23 | 3. Nonmaterial errors or omissions in the bylaw process |
24 | will not invalidate an otherwise properly promulgated amendment. |
25 | 4. If the bylaws provide for amendment by the board of |
26 | administration, no bylaw may be amended unless it is heard and |
27 | noticed at two consecutive meetings of the board of |
28 | administration that are at least 1 week apart. |
29 | Section 2. Subsection (11) is added to section 718.116, |
30 | Florida Statutes, to read: |
31 | 718.116 Assessments; liability; lien and priority; |
32 | interest; collection.-- |
33 | (11) During the pendency of any foreclosure action of a |
34 | condominium unit, if the unit is occupied by a tenant and the |
35 | unit owner is delinquent in the payment of regular assessments, |
36 | the association may demand that the tenant pay to the |
37 | association the future regular assessments related to the |
38 | condominium unit. The demand shall be continuing in nature, and |
39 | upon demand the tenant shall continue to pay the regular |
40 | assessments to the association until the association releases |
41 | the tenant or the tenant discontinues tenancy in the unit. The |
42 | association shall mail written notice to the unit owner of the |
43 | association's demand that the tenant pay regular assessments to |
44 | the association. The tenant shall not be liable for increases in |
45 | the amount of the regular assessment due unless the tenant was |
46 | reasonably notified of the increase prior to the day that the |
47 | rent is due. The tenant shall be given a credit against rents |
48 | due to the unit owner in the amount of assessments paid to the |
49 | association. The association shall, upon request, provide the |
50 | tenant with written receipts for payments made. The association |
51 | may issue notices under s. 83.56 and may sue for eviction under |
52 | ss. 83.59-83.625 as if the association were a landlord under |
53 | part II of chapter 83 should the tenant fail to pay an |
54 | assessment. However, the association shall not otherwise be |
55 | considered a landlord under chapter 83 and shall specifically |
56 | not have any duty under s. 83.51. The tenant shall not, by |
57 | virtue of payment of assessments, have any of the rights of a |
58 | unit owner to vote in any election or to examine the books and |
59 | records of the association. A court may supersede the effect of |
60 | this subsection by appointing a receiver. |
61 | Section 3. Subsection (1) of section 718.501, Florida |
62 | Statutes, is amended to read: |
63 | 718.501 Authority, responsibility, and duties of Division |
64 | of Florida Condominiums, Timeshares, and Mobile Homes.-- |
65 | (1) The Division of Florida Condominiums, Timeshares, and |
66 | Mobile Homes of the Department of Business and Professional |
67 | Regulation, referred to as the "division" in this part, has the |
68 | power to enforce and ensure compliance with the provisions of |
69 | this chapter and rules relating to the development, |
70 | construction, sale, lease, ownership, operation, and management |
71 | of residential condominium units. In performing its duties, the |
72 | division has complete jurisdiction to investigate complaints and |
73 | enforce compliance with the provisions of this chapter with |
74 | respect to associations that are still under developer control |
75 | and complaints against developers involving improper turnover or |
76 | failure to turnover, pursuant to s. 718.301. However, after |
77 | turnover has occurred, the division shall only have jurisdiction |
78 | to investigate complaints related to financial issues, failure |
79 | to maintain common elements, elections, and unit owner access to |
80 | association records pursuant to s. 718.111(12). |
81 | (a)1. The division may make necessary public or private |
82 | investigations within or outside this state to determine whether |
83 | any person has violated this chapter or any rule or order |
84 | hereunder, to aid in the enforcement of this chapter, or to aid |
85 | in the adoption of rules or forms hereunder. |
86 | 2. The division may submit any official written report, |
87 | worksheet, or other related paper, or a duly certified copy |
88 | thereof, compiled, prepared, drafted, or otherwise made by and |
89 | duly authenticated by a financial examiner or analyst to be |
90 | admitted as competent evidence in any hearing in which the |
91 | financial examiner or analyst is available for cross-examination |
92 | and attests under oath that such documents were prepared as a |
93 | result of an examination or inspection conducted pursuant to |
94 | this chapter. |
95 | (b) The division may require or permit any person to file |
96 | a statement in writing, under oath or otherwise, as the division |
97 | determines, as to the facts and circumstances concerning a |
98 | matter to be investigated. |
99 | (c) For the purpose of any investigation under this |
100 | chapter, the division director or any officer or employee |
101 | designated by the division director may administer oaths or |
102 | affirmations, subpoena witnesses and compel their attendance, |
103 | take evidence, and require the production of any matter which is |
104 | relevant to the investigation, including the existence, |
105 | description, nature, custody, condition, and location of any |
106 | books, documents, or other tangible things and the identity and |
107 | location of persons having knowledge of relevant facts or any |
108 | other matter reasonably calculated to lead to the discovery of |
109 | material evidence. Upon the failure by a person to obey a |
110 | subpoena or to answer questions propounded by the investigating |
111 | officer and upon reasonable notice to all persons affected |
112 | thereby, the division may apply to the circuit court for an |
113 | order compelling compliance. |
114 | (d) Notwithstanding any remedies available to unit owners |
115 | and associations, if the division has reasonable cause to |
116 | believe that a violation of any provision of this chapter or |
117 | related rule has occurred, the division may institute |
118 | enforcement proceedings in its own name against any developer, |
119 | association, officer, or member of the board of administration, |
120 | or its assignees or agents, as follows: |
121 | 1. The division may permit a person whose conduct or |
122 | actions may be under investigation to waive formal proceedings |
123 | and enter into a consent proceeding whereby orders, rules, or |
124 | letters of censure or warning, whether formal or informal, may |
125 | be entered against the person. |
126 | 2. The division may issue an order requiring the |
127 | developer, association, developer-designated officer, or |
128 | developer-designated member of the board of administration, |
129 | developer-designated assignees or agents, community association |
130 | manager, or community association management firm to cease and |
131 | desist from the unlawful practice and take such affirmative |
132 | action as in the judgment of the division will carry out the |
133 | purposes of this chapter. If the division finds that a |
134 | developer, association, officer, or member of the board of |
135 | administration, or its assignees or agents, is violating or is |
136 | about to violate any provision of this chapter, any rule adopted |
137 | or order issued by the division, or any written agreement |
138 | entered into with the division, and presents an immediate danger |
139 | to the public requiring an immediate final order, it may issue |
140 | an emergency cease and desist order reciting with particularity |
141 | the facts underlying such findings. The emergency cease and |
142 | desist order is effective for 90 days. If the division begins |
143 | nonemergency cease and desist proceedings, the emergency cease |
144 | and desist order remains effective until the conclusion of the |
145 | proceedings under ss. 120.569 and 120.57. |
146 | 3. If a developer fails to pay any restitution determined |
147 | by the division to be owed, plus any accrued interest at the |
148 | highest rate permitted by law, within 30 days after expiration |
149 | of any appellate time period of a final order requiring payment |
150 | of restitution or the conclusion of any appeal thereof, |
151 | whichever is later, the division shall bring an action in |
152 | circuit or county court on behalf of any association, class of |
153 | unit owners, lessees, or purchasers for restitution, declaratory |
154 | relief, injunctive relief, or any other available remedy. The |
155 | division may also temporarily revoke its acceptance of the |
156 | filing for the developer to which the restitution relates until |
157 | payment of restitution is made. |
158 | 4. The division may petition the court for the appointment |
159 | of a receiver or conservator. If appointed, the receiver or |
160 | conservator may take action to implement the court order to |
161 | ensure the performance of the order and to remedy any breach |
162 | thereof. In addition to all other means provided by law for the |
163 | enforcement of an injunction or temporary restraining order, the |
164 | circuit court may impound or sequester the property of a party |
165 | defendant, including books, papers, documents, and related |
166 | records, and allow the examination and use of the property by |
167 | the division and a court-appointed receiver or conservator. |
168 | 5. The division may apply to the circuit court for an |
169 | order of restitution whereby the defendant in an action brought |
170 | pursuant to subparagraph 4. shall be ordered to make restitution |
171 | of those sums shown by the division to have been obtained by the |
172 | defendant in violation of this chapter. Such restitution shall, |
173 | at the option of the court, be payable to the conservator or |
174 | receiver appointed pursuant to subparagraph 4. or directly to |
175 | the persons whose funds or assets were obtained in violation of |
176 | this chapter. |
177 | 6. The division may impose a civil penalty against a |
178 | developer or association, or its assignee or agent, for any |
179 | violation of this chapter or a rule adopted under this chapter. |
180 | The division may impose a civil penalty individually against any |
181 | officer or board member who willfully and knowingly violates a |
182 | provision of this chapter, adopted rule, or a final order of the |
183 | division; may order the removal of such individual as an officer |
184 | or from the board of administration or as an officer of the |
185 | association; and may prohibit such individual from serving as an |
186 | officer or on the board of a community association for a period |
187 | of time. The term "willfully and knowingly" means that the |
188 | division informed the officer or board member that his or her |
189 | action or intended action violates this chapter, a rule adopted |
190 | under this chapter, or a final order of the division and that |
191 | the officer or board member refused to comply with the |
192 | requirements of this chapter, a rule adopted under this chapter, |
193 | or a final order of the division. The division, prior to |
194 | initiating formal agency action under chapter 120, shall afford |
195 | the officer or board member an opportunity to voluntarily comply |
196 | with this chapter, a rule adopted under this chapter, or a final |
197 | order of the division. An officer or board member who complies |
198 | within 10 days is not subject to a civil penalty. A penalty may |
199 | be imposed on the basis of each day of continuing violation, but |
200 | in no event shall the penalty for any offense exceed $5,000. By |
201 | January 1, 1998, the division shall adopt, by rule, penalty |
202 | guidelines applicable to possible violations or to categories of |
203 | violations of this chapter or rules adopted by the division. The |
204 | guidelines must specify a meaningful range of civil penalties |
205 | for each such violation of the statute and rules and must be |
206 | based upon the harm caused by the violation, the repetition of |
207 | the violation, and upon such other factors deemed relevant by |
208 | the division. For example, the division may consider whether the |
209 | violations were committed by a developer or owner-controlled |
210 | association, the size of the association, and other factors. The |
211 | guidelines must designate the possible mitigating or aggravating |
212 | circumstances that justify a departure from the range of |
213 | penalties provided by the rules. It is the legislative intent |
214 | that minor violations be distinguished from those which endanger |
215 | the health, safety, or welfare of the condominium residents or |
216 | other persons and that such guidelines provide reasonable and |
217 | meaningful notice to the public of likely penalties that may be |
218 | imposed for proscribed conduct. This subsection does not limit |
219 | the ability of the division to informally dispose of |
220 | administrative actions or complaints by stipulation, agreed |
221 | settlement, or consent order. All amounts collected shall be |
222 | deposited with the Chief Financial Officer to the credit of the |
223 | Division of Florida Condominiums, Timeshares, and Mobile Homes |
224 | Trust Fund. If a developer fails to pay the civil penalty and |
225 | the amount deemed to be owed to the association, the division |
226 | shall issue an order directing that such developer cease and |
227 | desist from further operation until such time as the civil |
228 | penalty is paid or may pursue enforcement of the penalty in a |
229 | court of competent jurisdiction. If an association fails to pay |
230 | the civil penalty, the division shall pursue enforcement in a |
231 | court of competent jurisdiction, and the order imposing the |
232 | civil penalty or the cease and desist order will not become |
233 | effective until 20 days after the date of such order. Any action |
234 | commenced by the division shall be brought in the county in |
235 | which the division has its executive offices or in the county |
236 | where the violation occurred. |
237 | 7. If a unit owner presents the division with proof that |
238 | the unit owner has requested access to official records in |
239 | writing by certified mail, and that after 10 days the unit owner |
240 | again made the same request for access to official records in |
241 | writing by certified mail, and that more than 10 days has |
242 | elapsed since the second request and the association has still |
243 | failed or refused to provide access to official records as |
244 | required by this chapter, the division shall issue a subpoena |
245 | requiring production of the requested records where the records |
246 | are kept pursuant to s. 718.112. |
247 | 8. In addition to subparagraph 6., the division may seek |
248 | the imposition of a civil penalty through the circuit court for |
249 | any violation for which the division may issue a notice to show |
250 | cause under paragraph (r). The civil penalty shall be at least |
251 | $500 but no more than $5,000 for each violation. The court may |
252 | also award to the prevailing party court costs and reasonable |
253 | attorney's fees and, if the division prevails, may also award |
254 | reasonable costs of investigation. |
255 | 9. Notwithstanding subparagraph 6., when the division |
256 | finds that an officer or director has intentionally falsified |
257 | association records with the intent to conceal material facts |
258 | from the division, the board, or unit owners, the division shall |
259 | prohibit the officer or director from acting as an officer or |
260 | director of any condominium, cooperative, or homeowners' |
261 | association for at least 1 year. |
262 | 10. When the division finds that any person has derived an |
263 | improper personal benefit from a condominium association, the |
264 | division shall order the person to pay restitution to the |
265 | association and shall order the person to pay to the division |
266 | the costs of investigation and prosecution. |
267 | (e) The division may prepare and disseminate a prospectus |
268 | and other information to assist prospective owners, purchasers, |
269 | lessees, and developers of residential condominiums in assessing |
270 | the rights, privileges, and duties pertaining thereto. |
271 | (f) The division has authority to adopt rules pursuant to |
272 | ss. 120.536(1) and 120.54 to implement and enforce the |
273 | provisions of this chapter. |
274 | (g) The division shall establish procedures for providing |
275 | notice to an association and the developer during the period |
276 | where the developer controls the association when the division |
277 | is considering the issuance of a declaratory statement with |
278 | respect to the declaration of condominium or any related |
279 | document governing in such condominium community. |
280 | (h) The division shall furnish each association which pays |
281 | the fees required by paragraph (2)(a) a copy of this act, |
282 | subsequent changes to this act on an annual basis, an amended |
283 | version of this act as it becomes available from the Secretary |
284 | of State's office on a biennial basis, and the rules adopted |
285 | thereto on an annual basis. |
286 | (i) The division shall annually provide each association |
287 | with a summary of declaratory statements and formal legal |
288 | opinions relating to the operations of condominiums which were |
289 | rendered by the division during the previous year. |
290 | (j) The division shall provide training and educational |
291 | programs for condominium association board members and unit |
292 | owners. The training may, in the division's discretion, include |
293 | web-based electronic media, and live training and seminars in |
294 | various locations throughout the state. The division shall have |
295 | the authority to review and approve education and training |
296 | programs for board members and unit owners offered by providers |
297 | and shall maintain a current list of approved programs and |
298 | providers and shall make such list available to board members |
299 | and unit owners in a reasonable and cost-effective manner. |
300 | (k) The division shall maintain a toll-free telephone |
301 | number accessible to condominium unit owners. |
302 | (l) The division shall develop a program to certify both |
303 | volunteer and paid mediators to provide mediation of condominium |
304 | disputes. The division shall provide, upon request, a list of |
305 | such mediators to any association, unit owner, or other |
306 | participant in arbitration proceedings under s. 718.1255 |
307 | requesting a copy of the list. The division shall include on the |
308 | list of volunteer mediators only the names of persons who have |
309 | received at least 20 hours of training in mediation techniques |
310 | or who have mediated at least 20 disputes. In order to become |
311 | initially certified by the division, paid mediators must be |
312 | certified by the Supreme Court to mediate court cases in county |
313 | or circuit courts. However, the division may adopt, by rule, |
314 | additional factors for the certification of paid mediators, |
315 | which factors must be related to experience, education, or |
316 | background. Any person initially certified as a paid mediator by |
317 | the division must, in order to continue to be certified, comply |
318 | with the factors or requirements imposed by rules adopted by the |
319 | division. |
320 | (m) When a complaint is made, the division shall conduct |
321 | its inquiry with due regard to the interests of the affected |
322 | parties. Within 30 days after receipt of a complaint, the |
323 | division shall acknowledge the complaint in writing and notify |
324 | the complainant whether the complaint is within the jurisdiction |
325 | of the division and whether additional information is needed by |
326 | the division from the complainant. The division shall conduct |
327 | its investigation and shall, within 90 days after receipt of the |
328 | original complaint or of timely requested additional |
329 | information, take action upon the complaint. However, the |
330 | failure to complete the investigation within 90 days does not |
331 | prevent the division from continuing the investigation, |
332 | accepting or considering evidence obtained or received after 90 |
333 | days, or taking administrative action if reasonable cause exists |
334 | to believe that a violation of this chapter or a rule of the |
335 | division has occurred. If an investigation is not completed |
336 | within the time limits established in this paragraph, the |
337 | division shall, on a monthly basis, notify the complainant in |
338 | writing of the status of the investigation. When reporting its |
339 | action to the complainant, the division shall inform the |
340 | complainant of any right to a hearing pursuant to ss. 120.569 |
341 | and 120.57. |
342 | (n) Condominium association directors, officers, and |
343 | employees; condominium developers; community association |
344 | managers; and community association management firms have an |
345 | ongoing duty to reasonably cooperate with the division in any |
346 | investigation pursuant to this section. The division shall refer |
347 | to local law enforcement authorities any person whom the |
348 | division believes has altered, destroyed, concealed, or removed |
349 | any record, document, or thing required to be kept or maintained |
350 | by this chapter with the purpose to impair its verity or |
351 | availability in the department's investigation. |
352 | (o) The division may: |
353 | 1. Contract with agencies in this state or other |
354 | jurisdictions to perform investigative functions; or |
355 | 2. Accept grants-in-aid from any source. |
356 | (p) The division shall cooperate with similar agencies in |
357 | other jurisdictions to establish uniform filing procedures and |
358 | forms, public offering statements, advertising standards, and |
359 | rules and common administrative practices. |
360 | (q) The division shall consider notice to a developer to |
361 | be complete when it is delivered to the developer's address |
362 | currently on file with the division. |
363 | (r) In addition to its enforcement authority, the division |
364 | may issue a notice to show cause, which shall provide for a |
365 | hearing, upon written request, in accordance with chapter 120. |
366 | (s) The division shall submit to the Governor, the |
367 | President of the Senate, the Speaker of the House of |
368 | Representatives, and the chairs of the legislative |
369 | appropriations committees an annual report that includes, but |
370 | need not be limited to, the number of training programs provided |
371 | for condominium association board members and unit owners, the |
372 | number of complaints received by type, the number and percent of |
373 | complaints acknowledged in writing within 30 days and the number |
374 | and percent of investigations acted upon within 90 days in |
375 | accordance with paragraph (m), and the number of investigations |
376 | exceeding the 90-day requirement. The annual report shall also |
377 | include an evaluation of the division's core business processes |
378 | and make recommendations for improvements, including statutory |
379 | changes. The report shall be submitted by September 30 following |
380 | the end of the fiscal year. |
381 |
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382 | ----------------------------------------------------- |
383 | D I R E C T O R Y A M E N D M E N T |
384 | Remove lines 70-71 and insert: |
385 | Section 1. Paragraphs (d) and (h) of subsection (2) of |
386 | section 718.112, Florida Statutes, are amended to read: |
387 |
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388 | ----------------------------------------------------- |
389 | T I T L E A M E N D M E N T |
390 | Remove line 14 and insert: |
391 | specified period of years after a director's election; |
392 | providing requirements for bylaw amendments by a board of |
393 | administration; amending s. 718.116, F.S.; authorizing |
394 | association demands for assessment payments from tenants of |
395 | delinquent owners during pendency of a foreclosure action |
396 | of a condominium unit; providing for notice; providing for |
397 | credits against rent for assessment payments by tenants; |
398 | providing for eviction proceedings for nonpayment; |
399 | providing for effect of provisions on rights and duties of |
400 | the tenant and association; amending s. 718.501, F.S.; |
401 | providing for division jurisdiction to investigate |
402 | complaints concerning failure to maintain common elements; |
403 | prohibiting an officer or director from acting as such for |
404 | a specified period after having been found to have |
405 | committed specified violations; providing for payment of |
406 | restitution and costs of investigation and prosecution in |
407 | certain circumstances; |