Amendment
Bill No. CS/CS/CS/HB 27
Amendment No. 903823
CHAMBER ACTION
Senate House
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1Representative Robaina offered the following:
2
3     Amendment (with title amendment)
4     Remove lines 130-426 and insert:
5     Section 1.  Subsections (3) and (5) of section 718.111,
6Florida Statutes, are amended to read:
7     718.111  The association.--
8     (3)  POWER TO MANAGE CONDOMINIUM PROPERTY AND TO CONTRACT,
9SUE, AND BE SUED.--
10     (a)  The association may contract, sue, or be sued with
11respect to the exercise or nonexercise of its powers. For these
12purposes, the powers of the association include, but are not
13limited to, the maintenance, management, and operation of the
14condominium property.
15     (b)  After control of the association is obtained by unit
16owners other than the developer, the association may institute,
17maintain, settle, or appeal actions or hearings in its name on
18behalf of all unit owners concerning matters of common interest
19to most or all unit owners, including, but not limited to, the
20common elements; the roof and structural components of a
21building or other improvements; mechanical, electrical, and
22plumbing elements serving an improvement or a building;
23representations of the developer pertaining to any existing or
24proposed commonly used facilities; and protesting ad valorem
25taxes on commonly used facilities and on units; and may defend
26actions in eminent domain or bring inverse condemnation actions.
27     (c)  If the association has the authority to maintain a
28class action, the association may be joined in an action as
29representative of that class with reference to litigation and
30disputes involving the matters for which the association could
31bring a class action. Nothing herein limits any statutory or
32common-law right of any individual unit owner or class of unit
33owners to bring any action without participation by the
34association which may otherwise be available.
35     (d)  The borrowing of funds or committing to a line of
36credit by the board of administration shall be considered a
37special assessment, and any meeting of the board of
38administration to discuss such matters shall be noticed as
39provided in s. 718.112(2)(c). The board shall not have the
40authority to enter into a line of credit or borrow funds for any
41purpose unless the specific use of funds from the line of credit
42or loan is set forth in the notice of meeting with the same
43specificity as required for a special assessment or unless the
44borrowing or line of credit has received the prior approval of
45not less than two-thirds of the voting interests of the
46association.
47     (5)  RIGHT OF ACCESS TO UNITS.--The association has the
48irrevocable right of access to each unit during reasonable
49hours, when necessary for the maintenance, repair, or
50replacement of any common elements or of any portion of a unit
51to be maintained by the association pursuant to the declaration
52or as necessary to prevent damage to the common elements or to a
53unit or units. Except in cases of emergency, the association
54must give the unit owner advance written notice of not less than
5524 hours of its intent to access the unit and such access must
56be by two persons, one of whom must be a member of the board of
57administration or a manager or employee of the association and
58one of whom must be an authorized representative of the
59association. The identity of the authorized representative
60seeking access to the unit shall be provided to the unit owner
61prior to entering the unit.
62     Section 2.  Paragraphs (c), (d), and (h) of subsection (2)
63of section 718.112, Florida Statutes, are amended to read:
64     718.112  Bylaws.--
65     (2)  REQUIRED PROVISIONS.--The bylaws shall provide for the
66following and, if they do not do so, shall be deemed to include
67the following:
68     (c)  Board of administration meetings.--Meetings of the
69board of administration at which a quorum of the members is
70present shall be open to all unit owners. Any unit owner may
71tape record or videotape meetings of the board of
72administration. The right to attend such meetings includes the
73right to speak at such meetings with reference to all designated
74agenda items. The division shall adopt reasonable rules
75governing the tape recording and videotaping of the meeting. The
76association may adopt written reasonable rules governing the
77frequency, duration, and manner of unit owner statements.
78Adequate notice of all meetings, which notice shall specifically
79incorporate an identification of agenda items, shall be posted
80conspicuously on the condominium property at least 48 continuous
81hours preceding the meeting except in an emergency. If 20
82percent of the voting interests petition the board to address an
83item of business, the board shall at its next regular board
84meeting or at a special meeting of the board, but not later than
8560 days after the receipt of the petition, place the item on the
86agenda. Any item not included on the notice may be taken up on
87an emergency basis by at least a majority plus one of the
88members of the board. Such emergency action shall be noticed and
89ratified at the next regular meeting of the board. However,
90written notice of any meeting at which nonemergency special
91assessments, or at which amendment to rules regarding unit use,
92will be considered shall be mailed, delivered, or electronically
93transmitted to the unit owners and posted conspicuously on the
94condominium property not less than 14 days prior to the meeting.
95Evidence of compliance with this 14-day notice shall be made by
96an affidavit executed by the person providing the notice and
97filed among the official records of the association. Upon notice
98to the unit owners, the board shall by duly adopted rule
99designate a specific location on the condominium property or
100association property upon which all notices of board meetings
101shall be posted. If there is no condominium property or
102association property upon which notices can be posted, notices
103of board meetings shall be mailed, delivered, or electronically
104transmitted at least 14 days before the meeting to the owner of
105each unit. In lieu of or in addition to the physical posting of
106notice of any meeting of the board of administration on the
107condominium property, the association may, by reasonable rule,
108adopt a procedure for conspicuously posting and repeatedly
109broadcasting the notice and the agenda on a closed-circuit cable
110television system serving the condominium association. However,
111if broadcast notice is used in lieu of a notice posted
112physically on the condominium property, the notice and agenda
113must be broadcast at least four times every broadcast hour of
114each day that a posted notice is otherwise required under this
115section. When broadcast notice is provided, the notice and
116agenda must be broadcast in a manner and for a sufficient
117continuous length of time so as to allow an average reader to
118observe the notice and read and comprehend the entire content of
119the notice and the agenda. Notice of any meeting in which
120regular or special assessments against unit owners are to be
121considered for any reason shall specifically state that
122assessments will be considered and the nature of, actual amount
123of any bids or proposals for estimated cost, and description of
124the purposes for such assessments. Meetings of a committee to
125take final action on behalf of the board or make recommendations
126to the board regarding the association budget are subject to the
127provisions of this paragraph. Meetings of a committee that does
128not take final action on behalf of the board or make
129recommendations to the board regarding the association budget
130are subject to the provisions of this section, unless those
131meetings are exempted from this section by the bylaws of the
132association. Notwithstanding any other law, the requirement that
133board meetings and committee meetings be open to the unit owners
134is inapplicable to meetings between the board or a committee and
135the association's attorney, with respect to proposed or pending
136litigation, when the meeting is held for the purpose of seeking
137or rendering legal advice.
138     (d)  Unit owner meetings.--
139     1.  There shall be an annual meeting of the unit owners
140held at the location provided in the association bylaws and, if
141the bylaws are silent as to the location, the meeting shall be
142held within 45 miles of the condominium property. However, such
143distance requirement does not apply to an association governing
144a timeshare condominium. Unless the bylaws provide otherwise, a
145vacancy on the board caused by the expiration of a director's
146term shall be filled by electing a new board member, and the
147election shall be by secret ballot; however, if the number of
148vacancies equals or exceeds the number of candidates, no
149election is required. The terms of all members of the board
150shall expire at the annual meeting and such board members may
151stand for reelection unless otherwise permitted by the bylaws.
152In the event that the bylaws permit staggered terms of no more
153than 2 years and upon approval of a majority of the total voting
154interests, the association board members may serve 2-year
155staggered terms. If no person is interested in or demonstrates
156an intention to run for the position of a board member whose
157term has expired according to the provisions of this
158subparagraph, such board member whose term has expired shall be
159automatically reappointed to the board of administration and
160need not stand for reelection. In a condominium association of
161more than 10 units, coowners of a unit may not serve as members
162of the board of directors at the same time. Any unit owner
163desiring to be a candidate for board membership shall comply
164with subparagraph 3. A person who has been suspended or removed
165by the division under this chapter, or who is delinquent in the
166payment of any fee or assessment as provided in paragraph (n),
167is not eligible for board membership. A person who has been
168convicted of any felony in this state or in a United States
169District or Territorial Court, or who has been convicted of any
170offense in another jurisdiction that would be considered a
171felony if committed in this state, is not eligible for board
172membership unless such felon's civil rights have been restored
173for a period of no less than 5 years as of the date on which
174such person seeks election to the board. The validity of an
175action by the board is not affected if it is later determined
176that a member of the board is ineligible for board membership
177due to having been convicted of a felony.
178     2.  The bylaws shall provide the method of calling meetings
179of unit owners, including annual meetings. Written notice, which
180notice must include an agenda, shall be mailed, hand delivered,
181or electronically transmitted to each unit owner at least 14
182days prior to the annual meeting and shall be posted in a
183conspicuous place on the condominium property at least 14
184continuous days preceding the annual meeting. Upon notice to the
185unit owners, the board shall by duly adopted rule designate a
186specific location on the condominium property or association
187property upon which all notices of unit owner meetings shall be
188posted; however, if there is no condominium property or
189association property upon which notices can be posted, this
190requirement does not apply. In lieu of or in addition to the
191physical posting of notice of any meeting of the unit owners on
192the condominium property, the association may, by reasonable
193rule, adopt a procedure for conspicuously posting and repeatedly
194broadcasting the notice and the agenda on a closed-circuit cable
195television system serving the condominium association. However,
196if broadcast notice is used in lieu of a notice posted
197physically on the condominium property, the notice and agenda
198must be broadcast at least four times every broadcast hour of
199each day that a posted notice is otherwise required under this
200section. When broadcast notice is provided, the notice and
201agenda must be broadcast in a manner and for a sufficient
202continuous length of time so as to allow an average reader to
203observe the notice and read and comprehend the entire content of
204the notice and the agenda. Unless a unit owner waives in writing
205the right to receive notice of the annual meeting, such notice
206shall be hand delivered, mailed, or electronically transmitted
207to each unit owner. Notice for meetings and notice for all other
208purposes shall be mailed to each unit owner at the address last
209furnished to the association by the unit owner, or hand
210delivered to each unit owner. However, if a unit is owned by
211more than one person, the association shall provide notice, for
212meetings and all other purposes, to that one address which the
213developer initially identifies for that purpose and thereafter
214as one or more of the owners of the unit shall so advise the
215association in writing, or if no address is given or the owners
216of the unit do not agree, to the address provided on the deed of
217record. An officer of the association, or the manager or other
218person providing notice of the association meeting, shall
219provide an affidavit or United States Postal Service certificate
220of mailing, to be included in the official records of the
221association affirming that the notice was mailed or hand
222delivered, in accordance with this provision.
223     3.  The members of the board shall be elected by written
224ballot or voting machine. Proxies shall in no event be used in
225electing the board, either in general elections or elections to
226fill vacancies caused by recall, resignation, or otherwise,
227unless otherwise provided in this chapter. Not less than 60 days
228before a scheduled election, the association shall mail,
229deliver, or electronically transmit, whether by separate
230association mailing or included in another association mailing,
231delivery, or transmission, including regularly published
232newsletters, to each unit owner entitled to a vote, a first
233notice of the date of the election along with a certification
234form provided by the division attesting that he or she has read
235and understands, to the best of his or her ability, the
236governing documents of the association and the provisions of
237this chapter and any applicable rules. Any unit owner or other
238eligible person desiring to be a candidate for the board must
239give written notice to the association not less than 40 days
240before a scheduled election. Together with the written notice
241and agenda as set forth in subparagraph 2., the association
242shall mail, deliver, or electronically transmit a second notice
243of the election to all unit owners entitled to vote therein,
244together with a ballot which shall list all candidates. Upon
245request of a candidate, the association shall include an
246information sheet, no larger than 81/2 inches by 11 inches,
247which must be furnished by the candidate not less than 35 days
248before the election, along with the signed certification form
249provided for in this subparagraph, to be included with the
250mailing, delivery, or transmission of the ballot, with the costs
251of mailing, delivery, or electronic transmission and copying to
252be borne by the association. The association is not liable for
253the contents of the information sheets prepared by the
254candidates. In order to reduce costs, the association may print
255or duplicate the information sheets on both sides of the paper.
256The division shall by rule establish voting procedures
257consistent with the provisions contained herein, including rules
258establishing procedures for giving notice by electronic
259transmission and rules providing for the secrecy of ballots.
260Elections shall be decided by a plurality of those ballots cast.
261There shall be no quorum requirement; however, at least 20
262percent of the eligible voters must cast a ballot in order to
263have a valid election of members of the board. No unit owner
264shall permit any other person to vote his or her ballot, and any
265such ballots improperly cast shall be deemed invalid, provided
266any unit owner who violates this provision may be fined by the
267association in accordance with s. 718.303. A unit owner who
268needs assistance in casting the ballot for the reasons stated in
269s. 101.051 may obtain assistance in casting the ballot. The
270regular election shall occur on the date of the annual meeting.
271The provisions of this subparagraph shall not apply to timeshare
272condominium associations. Notwithstanding the provisions of this
273subparagraph, an election is not required unless more candidates
274file notices of intent to run or are nominated than board
275vacancies exist.
276     4.  Any approval by unit owners called for by this chapter
277or the applicable declaration or bylaws, including, but not
278limited to, the approval requirement in s. 718.111(8), shall be
279made at a duly noticed meeting of unit owners and shall be
280subject to all requirements of this chapter or the applicable
281condominium documents relating to unit owner decisionmaking,
282except that unit owners may take action by written agreement,
283without meetings, on matters for which action by written
284agreement without meetings is expressly allowed by the
285applicable bylaws or declaration or any statute that provides
286for such action.
287     5.  Unit owners may waive notice of specific meetings if
288allowed by the applicable bylaws or declaration or any statute.
289If authorized by the bylaws, notice of meetings of the board of
290administration, unit owner meetings, except unit owner meetings
291called to recall board members under paragraph (j), and
292committee meetings may be given by electronic transmission to
293unit owners who consent to receive notice by electronic
294transmission.
295     6.  Unit owners shall have the right to participate in
296meetings of unit owners with reference to all designated agenda
297items. However, the association may adopt reasonable rules
298governing the frequency, duration, and manner of unit owner
299participation.
300     7.  Any unit owner may tape record or videotape a meeting
301of the unit owners subject to reasonable rules adopted by the
302division.
303     8.  Unless otherwise provided in the bylaws, any vacancy
304occurring on the board before the expiration of a term may be
305filled by the affirmative vote of the majority of the remaining
306directors, even if the remaining directors constitute less than
307a quorum, or by the sole remaining director. In the alternative,
308a board may hold an election to fill the vacancy, in which case
309the election procedures must conform to the requirements of
310subparagraph 3. unless the association governs 10 units or less
311and has opted out of the statutory election process, in which
312case the bylaws of the association control. Unless otherwise
313provided in the bylaws, a board member appointed or elected
314under this section shall fill the vacancy for the unexpired term
315of the seat being filled. Filling vacancies created by recall is
316governed by paragraph (j) and rules adopted by the division.
317     9.  Within 30 days after being elected to the board of
318directors, a new director shall certify in writing to the
319secretary of the association that he or she has read the
320association's declarations of covenants and restrictions,
321articles of incorporation, bylaws, and current written policies,
322that he or she will work to uphold such documents and policies
323to the best of his or her ability, and that he or she will
324faithfully discharge his or her fiduciary responsibility to the
325association's members. Failure to timely file the statement
326automatically disqualifies the director from service on the
327association's board of directors. The secretary shall cause the
328association to retain a director's certification for inspection
329by the members for 5 years after a director's election. Failure
330to have such certification on file does not affect the validity
331of any appropriate action.
332
333Notwithstanding subparagraphs (b)2. and (d)3., an association of
33410 or fewer units may, by the affirmative vote of a majority of
335the total voting interests, provide for different voting and
336election procedures in its bylaws, which vote may be by a proxy
337specifically delineating the different voting and election
338procedures. The different voting and election procedures may
339provide for elections to be conducted by limited or general
340proxy.
341     (h)  Amendment of bylaws.--
342     1.  The method by which the bylaws may be amended
343consistent with the provisions of this chapter shall be stated.
344If the bylaws fail to provide a method of amendment, the bylaws
345may be amended if the amendment is approved by the owners of not
346less than two-thirds of the voting interests.
347     2.  No bylaw shall be revised or amended by reference to
348its title or number only. Proposals to amend existing bylaws
349shall contain the full text of the bylaws to be amended; new
350words shall be inserted in the text underlined, and words to be
351deleted shall be lined through with hyphens. However, if the
352proposed change is so extensive that this procedure would
353hinder, rather than assist, the understanding of the proposed
354amendment, it is not necessary to use underlining and hyphens as
355indicators of words added or deleted, but, instead, a notation
356must be inserted immediately preceding the proposed amendment in
357substantially the following language: "Substantial rewording of
358bylaw. See bylaw _____ for present text."
359     3.  Nonmaterial errors or omissions in the bylaw process
360will not invalidate an otherwise properly promulgated amendment.
361     4.  If the bylaws provide for amendment by the board of
362administration, no bylaw may be amended unless it is heard and
363noticed at two consecutive meetings of the board of
364administration that are at least 1 week apart.
365     Section 3.  Subsection (11) is added to section 718.116,
366Florida Statutes, to read:
367     718.116  Assessments; liability; lien and priority;
368interest; collection.--
369     (11)  During the pendency of any foreclosure action of a
370condominium unit, if the unit is occupied by a tenant and the
371unit owner is delinquent in the payment of regular assessments,
372the association may demand that the tenant pay to the
373association the future regular assessments related to the
374condominium unit. The demand shall be continuing in nature, and
375upon demand the tenant shall continue to pay the regular
376assessments to the association until the association releases
377the tenant or the tenant discontinues tenancy in the unit. The
378association shall mail written notice to the unit owner of the
379association's demand that the tenant pay regular assessments to
380the association. The tenant shall not be liable for increases in
381the amount of the regular assessment due unless the tenant was
382reasonably notified of the increase prior to the day that the
383rent is due. The tenant shall be given a credit against rents
384due to the unit owner in the amount of assessments paid to the
385association. The association shall, upon request, provide the
386tenant with written receipts for payments made. The association
387may issue notices under s. 83.56 and may sue for eviction under
388ss. 83.59-83.625 as if the association were a landlord under
389part II of chapter 83 should the tenant fail to pay an
390assessment. However, the association shall not otherwise be
391considered a landlord under chapter 83 and shall specifically
392not have any duty under s. 83.51. The tenant shall not, by
393virtue of payment of assessments, have any of the rights of a
394unit owner to vote in any election or to examine the books and
395records of the association. A court may supersede the effect of
396this subsection by appointing a receiver.
397     Section 4.  Subsection (1) of section 718.501, Florida
398Statutes, is amended to read:
399     718.501  Authority, responsibility, and duties of Division
400of Florida Condominiums, Timeshares, and Mobile Homes.--
401     (1)  The Division of Florida Condominiums, Timeshares, and
402Mobile Homes of the Department of Business and Professional
403Regulation, referred to as the "division" in this part, has the
404power to enforce and ensure compliance with the provisions of
405this chapter and rules relating to the development,
406construction, sale, lease, ownership, operation, and management
407of residential condominium units. In performing its duties, the
408division has complete jurisdiction to investigate complaints and
409enforce compliance with the provisions of this chapter with
410respect to associations that are still under developer control
411and complaints against developers involving improper turnover or
412failure to turnover, pursuant to s. 718.301. However, after
413turnover has occurred, the division shall only have jurisdiction
414to investigate complaints related to financial issues, failure
415to maintain common elements, elections, and unit owner access to
416association records pursuant to s. 718.111(12).
417     (a)1.  The division may make necessary public or private
418investigations within or outside this state to determine whether
419any person has violated this chapter or any rule or order
420hereunder, to aid in the enforcement of this chapter, or to aid
421in the adoption of rules or forms hereunder.
422     2.  The division may submit any official written report,
423worksheet, or other related paper, or a duly certified copy
424thereof, compiled, prepared, drafted, or otherwise made by and
425duly authenticated by a financial examiner or analyst to be
426admitted as competent evidence in any hearing in which the
427financial examiner or analyst is available for cross-examination
428and attests under oath that such documents were prepared as a
429result of an examination or inspection conducted pursuant to
430this chapter.
431     (b)  The division may require or permit any person to file
432a statement in writing, under oath or otherwise, as the division
433determines, as to the facts and circumstances concerning a
434matter to be investigated.
435     (c)  For the purpose of any investigation under this
436chapter, the division director or any officer or employee
437designated by the division director may administer oaths or
438affirmations, subpoena witnesses and compel their attendance,
439take evidence, and require the production of any matter which is
440relevant to the investigation, including the existence,
441description, nature, custody, condition, and location of any
442books, documents, or other tangible things and the identity and
443location of persons having knowledge of relevant facts or any
444other matter reasonably calculated to lead to the discovery of
445material evidence. Upon the failure by a person to obey a
446subpoena or to answer questions propounded by the investigating
447officer and upon reasonable notice to all persons affected
448thereby, the division may apply to the circuit court for an
449order compelling compliance.
450     (d)  Notwithstanding any remedies available to unit owners
451and associations, if the division has reasonable cause to
452believe that a violation of any provision of this chapter or
453related rule has occurred, the division may institute
454enforcement proceedings in its own name against any developer,
455association, officer, or member of the board of administration,
456or its assignees or agents, as follows:
457     1.  The division may permit a person whose conduct or
458actions may be under investigation to waive formal proceedings
459and enter into a consent proceeding whereby orders, rules, or
460letters of censure or warning, whether formal or informal, may
461be entered against the person.
462     2.  The division may issue an order requiring the
463developer, association, developer-designated officer, or
464developer-designated member of the board of administration,
465developer-designated assignees or agents, community association
466manager, or community association management firm to cease and
467desist from the unlawful practice and take such affirmative
468action as in the judgment of the division will carry out the
469purposes of this chapter. If the division finds that a
470developer, association, officer, or member of the board of
471administration, or its assignees or agents, is violating or is
472about to violate any provision of this chapter, any rule adopted
473or order issued by the division, or any written agreement
474entered into with the division, and presents an immediate danger
475to the public requiring an immediate final order, it may issue
476an emergency cease and desist order reciting with particularity
477the facts underlying such findings. The emergency cease and
478desist order is effective for 90 days. If the division begins
479nonemergency cease and desist proceedings, the emergency cease
480and desist order remains effective until the conclusion of the
481proceedings under ss. 120.569 and 120.57.
482     3.  If a developer fails to pay any restitution determined
483by the division to be owed, plus any accrued interest at the
484highest rate permitted by law, within 30 days after expiration
485of any appellate time period of a final order requiring payment
486of restitution or the conclusion of any appeal thereof,
487whichever is later, the division shall bring an action in
488circuit or county court on behalf of any association, class of
489unit owners, lessees, or purchasers for restitution, declaratory
490relief, injunctive relief, or any other available remedy. The
491division may also temporarily revoke its acceptance of the
492filing for the developer to which the restitution relates until
493payment of restitution is made.
494     4.  The division may petition the court for the appointment
495of a receiver or conservator. If appointed, the receiver or
496conservator may take action to implement the court order to
497ensure the performance of the order and to remedy any breach
498thereof. In addition to all other means provided by law for the
499enforcement of an injunction or temporary restraining order, the
500circuit court may impound or sequester the property of a party
501defendant, including books, papers, documents, and related
502records, and allow the examination and use of the property by
503the division and a court-appointed receiver or conservator.
504     5.  The division may apply to the circuit court for an
505order of restitution whereby the defendant in an action brought
506pursuant to subparagraph 4. shall be ordered to make restitution
507of those sums shown by the division to have been obtained by the
508defendant in violation of this chapter. Such restitution shall,
509at the option of the court, be payable to the conservator or
510receiver appointed pursuant to subparagraph 4. or directly to
511the persons whose funds or assets were obtained in violation of
512this chapter.
513     6.  The division may impose a civil penalty against a
514developer or association, or its assignee or agent, for any
515violation of this chapter or a rule adopted under this chapter.
516The division may impose a civil penalty individually against any
517officer or board member who willfully and knowingly violates a
518provision of this chapter, adopted rule, or a final order of the
519division; may order the removal of such individual as an officer
520or from the board of administration or as an officer of the
521association; and may prohibit such individual from serving as an
522officer or on the board of a community association for a period
523of time. The term "willfully and knowingly" means that the
524division informed the officer or board member that his or her
525action or intended action violates this chapter, a rule adopted
526under this chapter, or a final order of the division and that
527the officer or board member refused to comply with the
528requirements of this chapter, a rule adopted under this chapter,
529or a final order of the division. The division, prior to
530initiating formal agency action under chapter 120, shall afford
531the officer or board member an opportunity to voluntarily comply
532with this chapter, a rule adopted under this chapter, or a final
533order of the division. An officer or board member who complies
534within 10 days is not subject to a civil penalty. A penalty may
535be imposed on the basis of each day of continuing violation, but
536in no event shall the penalty for any offense exceed $5,000. By
537January 1, 1998, the division shall adopt, by rule, penalty
538guidelines applicable to possible violations or to categories of
539violations of this chapter or rules adopted by the division. The
540guidelines must specify a meaningful range of civil penalties
541for each such violation of the statute and rules and must be
542based upon the harm caused by the violation, the repetition of
543the violation, and upon such other factors deemed relevant by
544the division. For example, the division may consider whether the
545violations were committed by a developer or owner-controlled
546association, the size of the association, and other factors. The
547guidelines must designate the possible mitigating or aggravating
548circumstances that justify a departure from the range of
549penalties provided by the rules. It is the legislative intent
550that minor violations be distinguished from those which endanger
551the health, safety, or welfare of the condominium residents or
552other persons and that such guidelines provide reasonable and
553meaningful notice to the public of likely penalties that may be
554imposed for proscribed conduct. This subsection does not limit
555the ability of the division to informally dispose of
556administrative actions or complaints by stipulation, agreed
557settlement, or consent order. All amounts collected shall be
558deposited with the Chief Financial Officer to the credit of the
559Division of Florida Condominiums, Timeshares, and Mobile Homes
560Trust Fund. If a developer fails to pay the civil penalty and
561the amount deemed to be owed to the association, the division
562shall issue an order directing that such developer cease and
563desist from further operation until such time as the civil
564penalty is paid or may pursue enforcement of the penalty in a
565court of competent jurisdiction. If an association fails to pay
566the civil penalty, the division shall pursue enforcement in a
567court of competent jurisdiction, and the order imposing the
568civil penalty or the cease and desist order will not become
569effective until 20 days after the date of such order. Any action
570commenced by the division shall be brought in the county in
571which the division has its executive offices or in the county
572where the violation occurred.
573     7.  If a unit owner presents the division with proof that
574the unit owner has requested access to official records in
575writing by certified mail, and that after 10 days the unit owner
576again made the same request for access to official records in
577writing by certified mail, and that more than 10 days has
578elapsed since the second request and the association has still
579failed or refused to provide access to official records as
580required by this chapter, the division shall issue a subpoena
581requiring production of the requested records where the records
582are kept pursuant to s. 718.112.
583     8.  In addition to subparagraph 6., the division may seek
584the imposition of a civil penalty through the circuit court for
585any violation for which the division may issue a notice to show
586cause under paragraph (r). The civil penalty shall be at least
587$500 but no more than $5,000 for each violation. The court may
588also award to the prevailing party court costs and reasonable
589attorney's fees and, if the division prevails, may also award
590reasonable costs of investigation.
591     9.  Notwithstanding subparagraph 6., when the division
592finds that an officer or director has intentionally falsified
593association records with the intent to conceal material facts
594from the division, the board, or unit owners, the division shall
595prohibit the officer or director from acting as an officer or
596director of any condominium, cooperative, or homeowners'
597association for at least 1 year.
598     10.  When the division finds that any person has derived an
599improper personal benefit from a condominium association, the
600division shall order the person to pay restitution to the
601association and shall order the person to pay to the division
602the costs of investigation and prosecution.
603     (e)  The division may prepare and disseminate a prospectus
604and other information to assist prospective owners, purchasers,
605lessees, and developers of residential condominiums in assessing
606the rights, privileges, and duties pertaining thereto.
607     (f)  The division has authority to adopt rules pursuant to
608ss. 120.536(1) and 120.54 to implement and enforce the
609provisions of this chapter.
610     (g)  The division shall establish procedures for providing
611notice to an association and the developer during the period
612where the developer controls the association when the division
613is considering the issuance of a declaratory statement with
614respect to the declaration of condominium or any related
615document governing in such condominium community.
616     (h)  The division shall furnish each association which pays
617the fees required by paragraph (2)(a) a copy of this act,
618subsequent changes to this act on an annual basis, an amended
619version of this act as it becomes available from the Secretary
620of State's office on a biennial basis, and the rules adopted
621thereto on an annual basis.
622     (i)  The division shall annually provide each association
623with a summary of declaratory statements and formal legal
624opinions relating to the operations of condominiums which were
625rendered by the division during the previous year.
626     (j)  The division shall provide training and educational
627programs for condominium association board members and unit
628owners. The training may, in the division's discretion, include
629web-based electronic media, and live training and seminars in
630various locations throughout the state. The division shall have
631the authority to review and approve education and training
632programs for board members and unit owners offered by providers
633and shall maintain a current list of approved programs and
634providers and shall make such list available to board members
635and unit owners in a reasonable and cost-effective manner.
636     (k)  The division shall maintain a toll-free telephone
637number accessible to condominium unit owners.
638     (l)  The division shall develop a program to certify both
639volunteer and paid mediators to provide mediation of condominium
640disputes. The division shall provide, upon request, a list of
641such mediators to any association, unit owner, or other
642participant in arbitration proceedings under s. 718.1255
643requesting a copy of the list. The division shall include on the
644list of volunteer mediators only the names of persons who have
645received at least 20 hours of training in mediation techniques
646or who have mediated at least 20 disputes. In order to become
647initially certified by the division, paid mediators must be
648certified by the Supreme Court to mediate court cases in county
649or circuit courts. However, the division may adopt, by rule,
650additional factors for the certification of paid mediators,
651which factors must be related to experience, education, or
652background. Any person initially certified as a paid mediator by
653the division must, in order to continue to be certified, comply
654with the factors or requirements imposed by rules adopted by the
655division.
656     (m)  When a complaint is made, the division shall conduct
657its inquiry with due regard to the interests of the affected
658parties. Within 30 days after receipt of a complaint, the
659division shall acknowledge the complaint in writing and notify
660the complainant whether the complaint is within the jurisdiction
661of the division and whether additional information is needed by
662the division from the complainant. The division shall conduct
663its investigation and shall, within 90 days after receipt of the
664original complaint or of timely requested additional
665information, take action upon the complaint. However, the
666failure to complete the investigation within 90 days does not
667prevent the division from continuing the investigation,
668accepting or considering evidence obtained or received after 90
669days, or taking administrative action if reasonable cause exists
670to believe that a violation of this chapter or a rule of the
671division has occurred. If an investigation is not completed
672within the time limits established in this paragraph, the
673division shall, on a monthly basis, notify the complainant in
674writing of the status of the investigation. When reporting its
675action to the complainant, the division shall inform the
676complainant of any right to a hearing pursuant to ss. 120.569
677and 120.57.
678     (n)  Condominium association directors, officers, and
679employees; condominium developers; community association
680managers; and community association management firms have an
681ongoing duty to reasonably cooperate with the division in any
682investigation pursuant to this section. The division shall refer
683to local law enforcement authorities any person whom the
684division believes has altered, destroyed, concealed, or removed
685any record, document, or thing required to be kept or maintained
686by this chapter with the purpose to impair its verity or
687availability in the department's investigation.
688     (o)  The division may:
689     1.  Contract with agencies in this state or other
690jurisdictions to perform investigative functions; or
691     2.  Accept grants-in-aid from any source.
692     (p)  The division shall cooperate with similar agencies in
693other jurisdictions to establish uniform filing procedures and
694forms, public offering statements, advertising standards, and
695rules and common administrative practices.
696     (q)  The division shall consider notice to a developer to
697be complete when it is delivered to the developer's address
698currently on file with the division.
699     (r)  In addition to its enforcement authority, the division
700may issue a notice to show cause, which shall provide for a
701hearing, upon written request, in accordance with chapter 120.
702     (s)  The division shall submit to the Governor, the
703President of the Senate, the Speaker of the House of
704Representatives, and the chairs of the legislative
705appropriations committees an annual report that includes, but
706need not be limited to, the number of training programs provided
707for condominium association board members and unit owners, the
708number of complaints received by type, the number and percent of
709complaints acknowledged in writing within 30 days and the number
710and percent of investigations acted upon within 90 days in
711accordance with paragraph (m), and the number of investigations
712exceeding the 90-day requirement. The annual report shall also
713include an evaluation of the division's core business processes
714and make recommendations for improvements, including statutory
715changes. The report shall be submitted by September 30 following
716the end of the fiscal year.
717
718
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720     Remove lines 3-19 and insert:
721718.111, F.S.; providing that an association has power to
722borrow money; requiring two-thirds vote of members to
723borrow money above a certain threshold; requiring certain
724notice of meeting; requiring that association access to a
725unit must be by two persons, one of whom must be a board
726member or manager or employee of the association; providing
727an exception for emergencies; amending s. 718.112, F.S.;
728revising notice requirements for board of administration
729meetings; requiring each newly elected director to certify
730to the secretary of the association that he or she has read
731the association's declarations of covenants and
732restrictions, articles of incorporation, bylaws, and
733current written policies and will work to uphold such
734documents and policies to the best of his or her ability;
735providing that a failure to timely file the statement
736automatically disqualifies the director from service on the
737association's board of directors; requiring the secretary
738of the association to retain a director's certification for
739inspection by the members for a specified period of years
740after a director's election; providing requirements for
741bylaw amendments by a board of administration; amending s.
742718.116, F.S.; authorizing association demands for
743assessment payments from tenants of delinquent owners
744during pendency of a foreclosure action of a condominium
745unit; providing for notice; providing for credits against
746rent for assessment payments by tenants; providing for
747eviction proceedings for nonpayment; providing for effect
748of provisions on rights and duties of the tenant and
749association; amending s. 718.501, F.S.; providing for
750division jurisdiction to investigate complaints concerning
751failure to maintain common elements; prohibiting an officer
752or director from acting as such for a specified period
753after having been found to have committed specified
754violations; providing for payment of restitution and costs
755of investigation and prosecution in certain circumstances;
756


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