((LATE FILED FOR: APRIL 22 SPECIAL ORDER ))Amendment
Bill No. CS/CS/CS/HB 27
Amendment No. 834937
CHAMBER ACTION
Senate House
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1Representative Robaina offered the following:
2
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
7consistent with the provisions of this chapter shall be stated.
8If the bylaws fail to provide a method of amendment, the bylaws
9may be amended if the amendment is approved by the owners of not
10less than two-thirds of the voting interests.
11     2.  No bylaw shall be revised or amended by reference to
12its title or number only. Proposals to amend existing bylaws
13shall contain the full text of the bylaws to be amended; new
14words shall be inserted in the text underlined, and words to be
15deleted shall be lined through with hyphens. However, if the
16proposed change is so extensive that this procedure would
17hinder, rather than assist, the understanding of the proposed
18amendment, it is not necessary to use underlining and hyphens as
19indicators of words added or deleted, but, instead, a notation
20must be inserted immediately preceding the proposed amendment in
21substantially the following language: "Substantial rewording of
22bylaw. See bylaw _____ for present text."
23     3.  Nonmaterial errors or omissions in the bylaw process
24will not invalidate an otherwise properly promulgated amendment.
25     4.  If the bylaws provide for amendment by the board of
26administration, no bylaw may be amended unless it is heard and
27noticed at two consecutive meetings of the board of
28administration that are at least 1 week apart.
29     Section 2.  Subsection (11) is added to section 718.116,
30Florida Statutes, to read:
31     718.116  Assessments; liability; lien and priority;
32interest; collection.--
33     (11)  During the pendency of any foreclosure action of a
34condominium unit, if the unit is occupied by a tenant and the
35unit owner is delinquent in the payment of regular assessments,
36the association may demand that the tenant pay to the
37association the future regular assessments related to the
38condominium unit. The demand shall be continuing in nature, and
39upon demand the tenant shall continue to pay the regular
40assessments to the association until the association releases
41the tenant or the tenant discontinues tenancy in the unit. The
42association shall mail written notice to the unit owner of the
43association's demand that the tenant pay regular assessments to
44the association. The tenant shall not be liable for increases in
45the amount of the regular assessment due unless the tenant was
46reasonably notified of the increase prior to the day that the
47rent is due. The tenant shall be given a credit against rents
48due to the unit owner in the amount of assessments paid to the
49association. The association shall, upon request, provide the
50tenant with written receipts for payments made. The association
51may issue notices under s. 83.56 and may sue for eviction under
52ss. 83.59-83.625 as if the association were a landlord under
53part II of chapter 83 should the tenant fail to pay an
54assessment. However, the association shall not otherwise be
55considered a landlord under chapter 83 and shall specifically
56not have any duty under s. 83.51. The tenant shall not, by
57virtue of payment of assessments, have any of the rights of a
58unit owner to vote in any election or to examine the books and
59records of the association. A court may supersede the effect of
60this subsection by appointing a receiver.
61     Section 3.  Subsection (1) of section 718.501, Florida
62Statutes, is amended to read:
63     718.501  Authority, responsibility, and duties of Division
64of Florida Condominiums, Timeshares, and Mobile Homes.--
65     (1)  The Division of Florida Condominiums, Timeshares, and
66Mobile Homes of the Department of Business and Professional
67Regulation, referred to as the "division" in this part, has the
68power to enforce and ensure compliance with the provisions of
69this chapter and rules relating to the development,
70construction, sale, lease, ownership, operation, and management
71of residential condominium units. In performing its duties, the
72division has complete jurisdiction to investigate complaints and
73enforce compliance with the provisions of this chapter with
74respect to associations that are still under developer control
75and complaints against developers involving improper turnover or
76failure to turnover, pursuant to s. 718.301. However, after
77turnover has occurred, the division shall only have jurisdiction
78to investigate complaints related to financial issues, failure
79to maintain common elements, elections, and unit owner access to
80association records pursuant to s. 718.111(12).
81     (a)1.  The division may make necessary public or private
82investigations within or outside this state to determine whether
83any person has violated this chapter or any rule or order
84hereunder, to aid in the enforcement of this chapter, or to aid
85in the adoption of rules or forms hereunder.
86     2.  The division may submit any official written report,
87worksheet, or other related paper, or a duly certified copy
88thereof, compiled, prepared, drafted, or otherwise made by and
89duly authenticated by a financial examiner or analyst to be
90admitted as competent evidence in any hearing in which the
91financial examiner or analyst is available for cross-examination
92and attests under oath that such documents were prepared as a
93result of an examination or inspection conducted pursuant to
94this chapter.
95     (b)  The division may require or permit any person to file
96a statement in writing, under oath or otherwise, as the division
97determines, as to the facts and circumstances concerning a
98matter to be investigated.
99     (c)  For the purpose of any investigation under this
100chapter, the division director or any officer or employee
101designated by the division director may administer oaths or
102affirmations, subpoena witnesses and compel their attendance,
103take evidence, and require the production of any matter which is
104relevant to the investigation, including the existence,
105description, nature, custody, condition, and location of any
106books, documents, or other tangible things and the identity and
107location of persons having knowledge of relevant facts or any
108other matter reasonably calculated to lead to the discovery of
109material evidence. Upon the failure by a person to obey a
110subpoena or to answer questions propounded by the investigating
111officer and upon reasonable notice to all persons affected
112thereby, the division may apply to the circuit court for an
113order compelling compliance.
114     (d)  Notwithstanding any remedies available to unit owners
115and associations, if the division has reasonable cause to
116believe that a violation of any provision of this chapter or
117related rule has occurred, the division may institute
118enforcement proceedings in its own name against any developer,
119association, officer, or member of the board of administration,
120or its assignees or agents, as follows:
121     1.  The division may permit a person whose conduct or
122actions may be under investigation to waive formal proceedings
123and enter into a consent proceeding whereby orders, rules, or
124letters of censure or warning, whether formal or informal, may
125be entered against the person.
126     2.  The division may issue an order requiring the
127developer, association, developer-designated officer, or
128developer-designated member of the board of administration,
129developer-designated assignees or agents, community association
130manager, or community association management firm to cease and
131desist from the unlawful practice and take such affirmative
132action as in the judgment of the division will carry out the
133purposes of this chapter. If the division finds that a
134developer, association, officer, or member of the board of
135administration, or its assignees or agents, is violating or is
136about to violate any provision of this chapter, any rule adopted
137or order issued by the division, or any written agreement
138entered into with the division, and presents an immediate danger
139to the public requiring an immediate final order, it may issue
140an emergency cease and desist order reciting with particularity
141the facts underlying such findings. The emergency cease and
142desist order is effective for 90 days. If the division begins
143nonemergency cease and desist proceedings, the emergency cease
144and desist order remains effective until the conclusion of the
145proceedings under ss. 120.569 and 120.57.
146     3.  If a developer fails to pay any restitution determined
147by the division to be owed, plus any accrued interest at the
148highest rate permitted by law, within 30 days after expiration
149of any appellate time period of a final order requiring payment
150of restitution or the conclusion of any appeal thereof,
151whichever is later, the division shall bring an action in
152circuit or county court on behalf of any association, class of
153unit owners, lessees, or purchasers for restitution, declaratory
154relief, injunctive relief, or any other available remedy. The
155division may also temporarily revoke its acceptance of the
156filing for the developer to which the restitution relates until
157payment of restitution is made.
158     4.  The division may petition the court for the appointment
159of a receiver or conservator. If appointed, the receiver or
160conservator may take action to implement the court order to
161ensure the performance of the order and to remedy any breach
162thereof. In addition to all other means provided by law for the
163enforcement of an injunction or temporary restraining order, the
164circuit court may impound or sequester the property of a party
165defendant, including books, papers, documents, and related
166records, and allow the examination and use of the property by
167the division and a court-appointed receiver or conservator.
168     5.  The division may apply to the circuit court for an
169order of restitution whereby the defendant in an action brought
170pursuant to subparagraph 4. shall be ordered to make restitution
171of those sums shown by the division to have been obtained by the
172defendant in violation of this chapter. Such restitution shall,
173at the option of the court, be payable to the conservator or
174receiver appointed pursuant to subparagraph 4. or directly to
175the persons whose funds or assets were obtained in violation of
176this chapter.
177     6.  The division may impose a civil penalty against a
178developer or association, or its assignee or agent, for any
179violation of this chapter or a rule adopted under this chapter.
180The division may impose a civil penalty individually against any
181officer or board member who willfully and knowingly violates a
182provision of this chapter, adopted rule, or a final order of the
183division; may order the removal of such individual as an officer
184or from the board of administration or as an officer of the
185association; and may prohibit such individual from serving as an
186officer or on the board of a community association for a period
187of time. The term "willfully and knowingly" means that the
188division informed the officer or board member that his or her
189action or intended action violates this chapter, a rule adopted
190under this chapter, or a final order of the division and that
191the officer or board member refused to comply with the
192requirements of this chapter, a rule adopted under this chapter,
193or a final order of the division. The division, prior to
194initiating formal agency action under chapter 120, shall afford
195the officer or board member an opportunity to voluntarily comply
196with this chapter, a rule adopted under this chapter, or a final
197order of the division. An officer or board member who complies
198within 10 days is not subject to a civil penalty. A penalty may
199be imposed on the basis of each day of continuing violation, but
200in no event shall the penalty for any offense exceed $5,000. By
201January 1, 1998, the division shall adopt, by rule, penalty
202guidelines applicable to possible violations or to categories of
203violations of this chapter or rules adopted by the division. The
204guidelines must specify a meaningful range of civil penalties
205for each such violation of the statute and rules and must be
206based upon the harm caused by the violation, the repetition of
207the violation, and upon such other factors deemed relevant by
208the division. For example, the division may consider whether the
209violations were committed by a developer or owner-controlled
210association, the size of the association, and other factors. The
211guidelines must designate the possible mitigating or aggravating
212circumstances that justify a departure from the range of
213penalties provided by the rules. It is the legislative intent
214that minor violations be distinguished from those which endanger
215the health, safety, or welfare of the condominium residents or
216other persons and that such guidelines provide reasonable and
217meaningful notice to the public of likely penalties that may be
218imposed for proscribed conduct. This subsection does not limit
219the ability of the division to informally dispose of
220administrative actions or complaints by stipulation, agreed
221settlement, or consent order. All amounts collected shall be
222deposited with the Chief Financial Officer to the credit of the
223Division of Florida Condominiums, Timeshares, and Mobile Homes
224Trust Fund. If a developer fails to pay the civil penalty and
225the amount deemed to be owed to the association, the division
226shall issue an order directing that such developer cease and
227desist from further operation until such time as the civil
228penalty is paid or may pursue enforcement of the penalty in a
229court of competent jurisdiction. If an association fails to pay
230the civil penalty, the division shall pursue enforcement in a
231court of competent jurisdiction, and the order imposing the
232civil penalty or the cease and desist order will not become
233effective until 20 days after the date of such order. Any action
234commenced by the division shall be brought in the county in
235which the division has its executive offices or in the county
236where the violation occurred.
237     7.  If a unit owner presents the division with proof that
238the unit owner has requested access to official records in
239writing by certified mail, and that after 10 days the unit owner
240again made the same request for access to official records in
241writing by certified mail, and that more than 10 days has
242elapsed since the second request and the association has still
243failed or refused to provide access to official records as
244required by this chapter, the division shall issue a subpoena
245requiring production of the requested records where the records
246are kept pursuant to s. 718.112.
247     8.  In addition to subparagraph 6., the division may seek
248the imposition of a civil penalty through the circuit court for
249any violation for which the division may issue a notice to show
250cause under paragraph (r). The civil penalty shall be at least
251$500 but no more than $5,000 for each violation. The court may
252also award to the prevailing party court costs and reasonable
253attorney's fees and, if the division prevails, may also award
254reasonable costs of investigation.
255     9.  Notwithstanding subparagraph 6., when the division
256finds that an officer or director has intentionally falsified
257association records with the intent to conceal material facts
258from the division, the board, or unit owners, the division shall
259prohibit the officer or director from acting as an officer or
260director of any condominium, cooperative, or homeowners'
261association for at least 1 year.
262     10.  When the division finds that any person has derived an
263improper personal benefit from a condominium association, the
264division shall order the person to pay restitution to the
265association and shall order the person to pay to the division
266the costs of investigation and prosecution.
267     (e)  The division may prepare and disseminate a prospectus
268and other information to assist prospective owners, purchasers,
269lessees, and developers of residential condominiums in assessing
270the rights, privileges, and duties pertaining thereto.
271     (f)  The division has authority to adopt rules pursuant to
272ss. 120.536(1) and 120.54 to implement and enforce the
273provisions of this chapter.
274     (g)  The division shall establish procedures for providing
275notice to an association and the developer during the period
276where the developer controls the association when the division
277is considering the issuance of a declaratory statement with
278respect to the declaration of condominium or any related
279document governing in such condominium community.
280     (h)  The division shall furnish each association which pays
281the fees required by paragraph (2)(a) a copy of this act,
282subsequent changes to this act on an annual basis, an amended
283version of this act as it becomes available from the Secretary
284of State's office on a biennial basis, and the rules adopted
285thereto on an annual basis.
286     (i)  The division shall annually provide each association
287with a summary of declaratory statements and formal legal
288opinions relating to the operations of condominiums which were
289rendered by the division during the previous year.
290     (j)  The division shall provide training and educational
291programs for condominium association board members and unit
292owners. The training may, in the division's discretion, include
293web-based electronic media, and live training and seminars in
294various locations throughout the state. The division shall have
295the authority to review and approve education and training
296programs for board members and unit owners offered by providers
297and shall maintain a current list of approved programs and
298providers and shall make such list available to board members
299and unit owners in a reasonable and cost-effective manner.
300     (k)  The division shall maintain a toll-free telephone
301number accessible to condominium unit owners.
302     (l)  The division shall develop a program to certify both
303volunteer and paid mediators to provide mediation of condominium
304disputes. The division shall provide, upon request, a list of
305such mediators to any association, unit owner, or other
306participant in arbitration proceedings under s. 718.1255
307requesting a copy of the list. The division shall include on the
308list of volunteer mediators only the names of persons who have
309received at least 20 hours of training in mediation techniques
310or who have mediated at least 20 disputes. In order to become
311initially certified by the division, paid mediators must be
312certified by the Supreme Court to mediate court cases in county
313or circuit courts. However, the division may adopt, by rule,
314additional factors for the certification of paid mediators,
315which factors must be related to experience, education, or
316background. Any person initially certified as a paid mediator by
317the division must, in order to continue to be certified, comply
318with the factors or requirements imposed by rules adopted by the
319division.
320     (m)  When a complaint is made, the division shall conduct
321its inquiry with due regard to the interests of the affected
322parties. Within 30 days after receipt of a complaint, the
323division shall acknowledge the complaint in writing and notify
324the complainant whether the complaint is within the jurisdiction
325of the division and whether additional information is needed by
326the division from the complainant. The division shall conduct
327its investigation and shall, within 90 days after receipt of the
328original complaint or of timely requested additional
329information, take action upon the complaint. However, the
330failure to complete the investigation within 90 days does not
331prevent the division from continuing the investigation,
332accepting or considering evidence obtained or received after 90
333days, or taking administrative action if reasonable cause exists
334to believe that a violation of this chapter or a rule of the
335division has occurred. If an investigation is not completed
336within the time limits established in this paragraph, the
337division shall, on a monthly basis, notify the complainant in
338writing of the status of the investigation. When reporting its
339action to the complainant, the division shall inform the
340complainant of any right to a hearing pursuant to ss. 120.569
341and 120.57.
342     (n)  Condominium association directors, officers, and
343employees; condominium developers; community association
344managers; and community association management firms have an
345ongoing duty to reasonably cooperate with the division in any
346investigation pursuant to this section. The division shall refer
347to local law enforcement authorities any person whom the
348division believes has altered, destroyed, concealed, or removed
349any record, document, or thing required to be kept or maintained
350by this chapter with the purpose to impair its verity or
351availability in the department's investigation.
352     (o)  The division may:
353     1.  Contract with agencies in this state or other
354jurisdictions to perform investigative functions; or
355     2.  Accept grants-in-aid from any source.
356     (p)  The division shall cooperate with similar agencies in
357other jurisdictions to establish uniform filing procedures and
358forms, public offering statements, advertising standards, and
359rules and common administrative practices.
360     (q)  The division shall consider notice to a developer to
361be complete when it is delivered to the developer's address
362currently on file with the division.
363     (r)  In addition to its enforcement authority, the division
364may issue a notice to show cause, which shall provide for a
365hearing, upon written request, in accordance with chapter 120.
366     (s)  The division shall submit to the Governor, the
367President of the Senate, the Speaker of the House of
368Representatives, and the chairs of the legislative
369appropriations committees an annual report that includes, but
370need not be limited to, the number of training programs provided
371for condominium association board members and unit owners, the
372number of complaints received by type, the number and percent of
373complaints acknowledged in writing within 30 days and the number
374and percent of investigations acted upon within 90 days in
375accordance with paragraph (m), and the number of investigations
376exceeding the 90-day requirement. The annual report shall also
377include an evaluation of the division's core business processes
378and make recommendations for improvements, including statutory
379changes. The report shall be submitted by September 30 following
380the end of the fiscal year.
381
382
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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
386section 718.112, Florida Statutes, are amended to read:
387
388
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389
T I T L E  A M E N D M E N T
390     Remove line 14 and insert:
391specified period of years after a director's election;
392providing requirements for bylaw amendments by a board of
393administration; amending s. 718.116, F.S.; authorizing
394association demands for assessment payments from tenants of
395delinquent owners during pendency of a foreclosure action
396of a condominium unit; providing for notice; providing for
397credits against rent for assessment payments by tenants;
398providing for eviction proceedings for nonpayment;
399providing for effect of provisions on rights and duties of
400the tenant and association; amending s. 718.501, F.S.;
401providing for division jurisdiction to investigate
402complaints concerning failure to maintain common elements;
403prohibiting an officer or director from acting as such for
404a specified period after having been found to have
405committed specified violations; providing for payment of
406restitution and costs of investigation and prosecution in
407certain circumstances;


CODING: Words stricken are deletions; words underlined are additions.