1 | Representative Robaina offered the following: |
2 |
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3 | Amendment (with title amendment) |
4 | Remove lines 130-426 and insert: |
5 | Section 1. Subsections (3) and (5) of section 718.111, |
6 | Florida Statutes, are amended to read: |
7 | 718.111 The association.-- |
8 | (3) POWER TO MANAGE CONDOMINIUM PROPERTY AND TO CONTRACT, |
9 | SUE, AND BE SUED.-- |
10 | (a) The association may contract, sue, or be sued with |
11 | respect to the exercise or nonexercise of its powers. For these |
12 | purposes, the powers of the association include, but are not |
13 | limited to, the maintenance, management, and operation of the |
14 | condominium property. |
15 | (b) After control of the association is obtained by unit |
16 | owners other than the developer, the association may institute, |
17 | maintain, settle, or appeal actions or hearings in its name on |
18 | behalf of all unit owners concerning matters of common interest |
19 | to most or all unit owners, including, but not limited to, the |
20 | common elements; the roof and structural components of a |
21 | building or other improvements; mechanical, electrical, and |
22 | plumbing elements serving an improvement or a building; |
23 | representations of the developer pertaining to any existing or |
24 | proposed commonly used facilities; and protesting ad valorem |
25 | taxes on commonly used facilities and on units; and may defend |
26 | actions in eminent domain or bring inverse condemnation actions. |
27 | (c) If the association has the authority to maintain a |
28 | class action, the association may be joined in an action as |
29 | representative of that class with reference to litigation and |
30 | disputes involving the matters for which the association could |
31 | bring a class action. Nothing herein limits any statutory or |
32 | common-law right of any individual unit owner or class of unit |
33 | owners to bring any action without participation by the |
34 | association which may otherwise be available. |
35 | (d) The borrowing of funds or committing to a line of |
36 | credit by the board of administration shall be considered a |
37 | special assessment, and any meeting of the board of |
38 | administration to discuss such matters shall be noticed as |
39 | provided in s. 718.112(2)(c). The board shall not have the |
40 | authority to enter into a line of credit or borrow funds for any |
41 | purpose unless the specific use of funds from the line of credit |
42 | or loan is set forth in the notice of meeting with the same |
43 | specificity as required for a special assessment or unless the |
44 | borrowing or line of credit has received the prior approval of |
45 | not less than two-thirds of the voting interests of the |
46 | association. |
47 | (5) RIGHT OF ACCESS TO UNITS.--The association has the |
48 | irrevocable right of access to each unit during reasonable |
49 | hours, when necessary for the maintenance, repair, or |
50 | replacement of any common elements or of any portion of a unit |
51 | to be maintained by the association pursuant to the declaration |
52 | or as necessary to prevent damage to the common elements or to a |
53 | unit or units. Except in cases of emergency, the association |
54 | must give the unit owner advance written notice of not less than |
55 | 24 hours of its intent to access the unit and such access must |
56 | be by two persons, one of whom must be a member of the board of |
57 | administration or a manager or employee of the association and |
58 | one of whom must be an authorized representative of the |
59 | association. The identity of the authorized representative |
60 | seeking access to the unit shall be provided to the unit owner |
61 | prior to entering the unit. |
62 | Section 2. Paragraphs (c), (d), and (h) of subsection (2) |
63 | of section 718.112, Florida Statutes, are amended to read: |
64 | 718.112 Bylaws.-- |
65 | (2) REQUIRED PROVISIONS.--The bylaws shall provide for the |
66 | following and, if they do not do so, shall be deemed to include |
67 | the following: |
68 | (c) Board of administration meetings.--Meetings of the |
69 | board of administration at which a quorum of the members is |
70 | present shall be open to all unit owners. Any unit owner may |
71 | tape record or videotape meetings of the board of |
72 | administration. The right to attend such meetings includes the |
73 | right to speak at such meetings with reference to all designated |
74 | agenda items. The division shall adopt reasonable rules |
75 | governing the tape recording and videotaping of the meeting. The |
76 | association may adopt written reasonable rules governing the |
77 | frequency, duration, and manner of unit owner statements. |
78 | Adequate notice of all meetings, which notice shall specifically |
79 | incorporate an identification of agenda items, shall be posted |
80 | conspicuously on the condominium property at least 48 continuous |
81 | hours preceding the meeting except in an emergency. If 20 |
82 | percent of the voting interests petition the board to address an |
83 | item of business, the board shall at its next regular board |
84 | meeting or at a special meeting of the board, but not later than |
85 | 60 days after the receipt of the petition, place the item on the |
86 | agenda. Any item not included on the notice may be taken up on |
87 | an emergency basis by at least a majority plus one of the |
88 | members of the board. Such emergency action shall be noticed and |
89 | ratified at the next regular meeting of the board. However, |
90 | written notice of any meeting at which nonemergency special |
91 | assessments, or at which amendment to rules regarding unit use, |
92 | will be considered shall be mailed, delivered, or electronically |
93 | transmitted to the unit owners and posted conspicuously on the |
94 | condominium property not less than 14 days prior to the meeting. |
95 | Evidence of compliance with this 14-day notice shall be made by |
96 | an affidavit executed by the person providing the notice and |
97 | filed among the official records of the association. Upon notice |
98 | to the unit owners, the board shall by duly adopted rule |
99 | designate a specific location on the condominium property or |
100 | association property upon which all notices of board meetings |
101 | shall be posted. If there is no condominium property or |
102 | association property upon which notices can be posted, notices |
103 | of board meetings shall be mailed, delivered, or electronically |
104 | transmitted at least 14 days before the meeting to the owner of |
105 | each unit. In lieu of or in addition to the physical posting of |
106 | notice of any meeting of the board of administration on the |
107 | condominium property, the association may, by reasonable rule, |
108 | adopt a procedure for conspicuously posting and repeatedly |
109 | broadcasting the notice and the agenda on a closed-circuit cable |
110 | television system serving the condominium association. However, |
111 | if broadcast notice is used in lieu of a notice posted |
112 | physically on the condominium property, the notice and agenda |
113 | must be broadcast at least four times every broadcast hour of |
114 | each day that a posted notice is otherwise required under this |
115 | section. When broadcast notice is provided, the notice and |
116 | agenda must be broadcast in a manner and for a sufficient |
117 | continuous length of time so as to allow an average reader to |
118 | observe the notice and read and comprehend the entire content of |
119 | the notice and the agenda. Notice of any meeting in which |
120 | regular or special assessments against unit owners are to be |
121 | considered for any reason shall specifically state that |
122 | assessments will be considered and the nature of, actual amount |
123 | of any bids or proposals for estimated cost, and description of |
124 | the purposes for such assessments. Meetings of a committee to |
125 | take final action on behalf of the board or make recommendations |
126 | to the board regarding the association budget are subject to the |
127 | provisions of this paragraph. Meetings of a committee that does |
128 | not take final action on behalf of the board or make |
129 | recommendations to the board regarding the association budget |
130 | are subject to the provisions of this section, unless those |
131 | meetings are exempted from this section by the bylaws of the |
132 | association. Notwithstanding any other law, the requirement that |
133 | board meetings and committee meetings be open to the unit owners |
134 | is inapplicable to meetings between the board or a committee and |
135 | the association's attorney, with respect to proposed or pending |
136 | litigation, when the meeting is held for the purpose of seeking |
137 | or rendering legal advice. |
138 | (d) Unit owner meetings.-- |
139 | 1. There shall be an annual meeting of the unit owners |
140 | held at the location provided in the association bylaws and, if |
141 | the bylaws are silent as to the location, the meeting shall be |
142 | held within 45 miles of the condominium property. However, such |
143 | distance requirement does not apply to an association governing |
144 | a timeshare condominium. Unless the bylaws provide otherwise, a |
145 | vacancy on the board caused by the expiration of a director's |
146 | term shall be filled by electing a new board member, and the |
147 | election shall be by secret ballot; however, if the number of |
148 | vacancies equals or exceeds the number of candidates, no |
149 | election is required. The terms of all members of the board |
150 | shall expire at the annual meeting and such board members may |
151 | stand for reelection unless otherwise permitted by the bylaws. |
152 | In the event that the bylaws permit staggered terms of no more |
153 | than 2 years and upon approval of a majority of the total voting |
154 | interests, the association board members may serve 2-year |
155 | staggered terms. If no person is interested in or demonstrates |
156 | an intention to run for the position of a board member whose |
157 | term has expired according to the provisions of this |
158 | subparagraph, such board member whose term has expired shall be |
159 | automatically reappointed to the board of administration and |
160 | need not stand for reelection. In a condominium association of |
161 | more than 10 units, coowners of a unit may not serve as members |
162 | of the board of directors at the same time. Any unit owner |
163 | desiring to be a candidate for board membership shall comply |
164 | with subparagraph 3. A person who has been suspended or removed |
165 | by the division under this chapter, or who is delinquent in the |
166 | payment of any fee or assessment as provided in paragraph (n), |
167 | is not eligible for board membership. A person who has been |
168 | convicted of any felony in this state or in a United States |
169 | District or Territorial Court, or who has been convicted of any |
170 | offense in another jurisdiction that would be considered a |
171 | felony if committed in this state, is not eligible for board |
172 | membership unless such felon's civil rights have been restored |
173 | for a period of no less than 5 years as of the date on which |
174 | such person seeks election to the board. The validity of an |
175 | action by the board is not affected if it is later determined |
176 | that a member of the board is ineligible for board membership |
177 | due to having been convicted of a felony. |
178 | 2. The bylaws shall provide the method of calling meetings |
179 | of unit owners, including annual meetings. Written notice, which |
180 | notice must include an agenda, shall be mailed, hand delivered, |
181 | or electronically transmitted to each unit owner at least 14 |
182 | days prior to the annual meeting and shall be posted in a |
183 | conspicuous place on the condominium property at least 14 |
184 | continuous days preceding the annual meeting. Upon notice to the |
185 | unit owners, the board shall by duly adopted rule designate a |
186 | specific location on the condominium property or association |
187 | property upon which all notices of unit owner meetings shall be |
188 | posted; however, if there is no condominium property or |
189 | association property upon which notices can be posted, this |
190 | requirement does not apply. In lieu of or in addition to the |
191 | physical posting of notice of any meeting of the unit owners on |
192 | the condominium property, the association may, by reasonable |
193 | rule, adopt a procedure for conspicuously posting and repeatedly |
194 | broadcasting the notice and the agenda on a closed-circuit cable |
195 | television system serving the condominium association. However, |
196 | if broadcast notice is used in lieu of a notice posted |
197 | physically on the condominium property, the notice and agenda |
198 | must be broadcast at least four times every broadcast hour of |
199 | each day that a posted notice is otherwise required under this |
200 | section. When broadcast notice is provided, the notice and |
201 | agenda must be broadcast in a manner and for a sufficient |
202 | continuous length of time so as to allow an average reader to |
203 | observe the notice and read and comprehend the entire content of |
204 | the notice and the agenda. Unless a unit owner waives in writing |
205 | the right to receive notice of the annual meeting, such notice |
206 | shall be hand delivered, mailed, or electronically transmitted |
207 | to each unit owner. Notice for meetings and notice for all other |
208 | purposes shall be mailed to each unit owner at the address last |
209 | furnished to the association by the unit owner, or hand |
210 | delivered to each unit owner. However, if a unit is owned by |
211 | more than one person, the association shall provide notice, for |
212 | meetings and all other purposes, to that one address which the |
213 | developer initially identifies for that purpose and thereafter |
214 | as one or more of the owners of the unit shall so advise the |
215 | association in writing, or if no address is given or the owners |
216 | of the unit do not agree, to the address provided on the deed of |
217 | record. An officer of the association, or the manager or other |
218 | person providing notice of the association meeting, shall |
219 | provide an affidavit or United States Postal Service certificate |
220 | of mailing, to be included in the official records of the |
221 | association affirming that the notice was mailed or hand |
222 | delivered, in accordance with this provision. |
223 | 3. The members of the board shall be elected by written |
224 | ballot or voting machine. Proxies shall in no event be used in |
225 | electing the board, either in general elections or elections to |
226 | fill vacancies caused by recall, resignation, or otherwise, |
227 | unless otherwise provided in this chapter. Not less than 60 days |
228 | before a scheduled election, the association shall mail, |
229 | deliver, or electronically transmit, whether by separate |
230 | association mailing or included in another association mailing, |
231 | delivery, or transmission, including regularly published |
232 | newsletters, to each unit owner entitled to a vote, a first |
233 | notice of the date of the election along with a certification |
234 | form provided by the division attesting that he or she has read |
235 | and understands, to the best of his or her ability, the |
236 | governing documents of the association and the provisions of |
237 | this chapter and any applicable rules. Any unit owner or other |
238 | eligible person desiring to be a candidate for the board must |
239 | give written notice to the association not less than 40 days |
240 | before a scheduled election. Together with the written notice |
241 | and agenda as set forth in subparagraph 2., the association |
242 | shall mail, deliver, or electronically transmit a second notice |
243 | of the election to all unit owners entitled to vote therein, |
244 | together with a ballot which shall list all candidates. Upon |
245 | request of a candidate, the association shall include an |
246 | information sheet, no larger than 81/2 inches by 11 inches, |
247 | which must be furnished by the candidate not less than 35 days |
248 | before the election, along with the signed certification form |
249 | provided for in this subparagraph, to be included with the |
250 | mailing, delivery, or transmission of the ballot, with the costs |
251 | of mailing, delivery, or electronic transmission and copying to |
252 | be borne by the association. The association is not liable for |
253 | the contents of the information sheets prepared by the |
254 | candidates. In order to reduce costs, the association may print |
255 | or duplicate the information sheets on both sides of the paper. |
256 | The division shall by rule establish voting procedures |
257 | consistent with the provisions contained herein, including rules |
258 | establishing procedures for giving notice by electronic |
259 | transmission and rules providing for the secrecy of ballots. |
260 | Elections shall be decided by a plurality of those ballots cast. |
261 | There shall be no quorum requirement; however, at least 20 |
262 | percent of the eligible voters must cast a ballot in order to |
263 | have a valid election of members of the board. No unit owner |
264 | shall permit any other person to vote his or her ballot, and any |
265 | such ballots improperly cast shall be deemed invalid, provided |
266 | any unit owner who violates this provision may be fined by the |
267 | association in accordance with s. 718.303. A unit owner who |
268 | needs assistance in casting the ballot for the reasons stated in |
269 | s. 101.051 may obtain assistance in casting the ballot. The |
270 | regular election shall occur on the date of the annual meeting. |
271 | The provisions of this subparagraph shall not apply to timeshare |
272 | condominium associations. Notwithstanding the provisions of this |
273 | subparagraph, an election is not required unless more candidates |
274 | file notices of intent to run or are nominated than board |
275 | vacancies exist. |
276 | 4. Any approval by unit owners called for by this chapter |
277 | or the applicable declaration or bylaws, including, but not |
278 | limited to, the approval requirement in s. 718.111(8), shall be |
279 | made at a duly noticed meeting of unit owners and shall be |
280 | subject to all requirements of this chapter or the applicable |
281 | condominium documents relating to unit owner decisionmaking, |
282 | except that unit owners may take action by written agreement, |
283 | without meetings, on matters for which action by written |
284 | agreement without meetings is expressly allowed by the |
285 | applicable bylaws or declaration or any statute that provides |
286 | for such action. |
287 | 5. Unit owners may waive notice of specific meetings if |
288 | allowed by the applicable bylaws or declaration or any statute. |
289 | If authorized by the bylaws, notice of meetings of the board of |
290 | administration, unit owner meetings, except unit owner meetings |
291 | called to recall board members under paragraph (j), and |
292 | committee meetings may be given by electronic transmission to |
293 | unit owners who consent to receive notice by electronic |
294 | transmission. |
295 | 6. Unit owners shall have the right to participate in |
296 | meetings of unit owners with reference to all designated agenda |
297 | items. However, the association may adopt reasonable rules |
298 | governing the frequency, duration, and manner of unit owner |
299 | participation. |
300 | 7. Any unit owner may tape record or videotape a meeting |
301 | of the unit owners subject to reasonable rules adopted by the |
302 | division. |
303 | 8. Unless otherwise provided in the bylaws, any vacancy |
304 | occurring on the board before the expiration of a term may be |
305 | filled by the affirmative vote of the majority of the remaining |
306 | directors, even if the remaining directors constitute less than |
307 | a quorum, or by the sole remaining director. In the alternative, |
308 | a board may hold an election to fill the vacancy, in which case |
309 | the election procedures must conform to the requirements of |
310 | subparagraph 3. unless the association governs 10 units or less |
311 | and has opted out of the statutory election process, in which |
312 | case the bylaws of the association control. Unless otherwise |
313 | provided in the bylaws, a board member appointed or elected |
314 | under this section shall fill the vacancy for the unexpired term |
315 | of the seat being filled. Filling vacancies created by recall is |
316 | governed by paragraph (j) and rules adopted by the division. |
317 | 9. Within 30 days after being elected to the board of |
318 | directors, a new director shall certify in writing to the |
319 | secretary of the association that he or she has read the |
320 | association's declarations of covenants and restrictions, |
321 | articles of incorporation, bylaws, and current written policies, |
322 | that he or she will work to uphold such documents and policies |
323 | to the best of his or her ability, and that he or she will |
324 | faithfully discharge his or her fiduciary responsibility to the |
325 | association's members. Failure to timely file the statement |
326 | automatically disqualifies the director from service on the |
327 | association's board of directors. The secretary shall cause the |
328 | association to retain a director's certification for inspection |
329 | by the members for 5 years after a director's election. Failure |
330 | to have such certification on file does not affect the validity |
331 | of any appropriate action. |
332 |
|
333 | Notwithstanding subparagraphs (b)2. and (d)3., an association of |
334 | 10 or fewer units may, by the affirmative vote of a majority of |
335 | the total voting interests, provide for different voting and |
336 | election procedures in its bylaws, which vote may be by a proxy |
337 | specifically delineating the different voting and election |
338 | procedures. The different voting and election procedures may |
339 | provide for elections to be conducted by limited or general |
340 | proxy. |
341 | (h) Amendment of bylaws.-- |
342 | 1. The method by which the bylaws may be amended |
343 | consistent with the provisions of this chapter shall be stated. |
344 | If the bylaws fail to provide a method of amendment, the bylaws |
345 | may be amended if the amendment is approved by the owners of not |
346 | less than two-thirds of the voting interests. |
347 | 2. No bylaw shall be revised or amended by reference to |
348 | its title or number only. Proposals to amend existing bylaws |
349 | shall contain the full text of the bylaws to be amended; new |
350 | words shall be inserted in the text underlined, and words to be |
351 | deleted shall be lined through with hyphens. However, if the |
352 | proposed change is so extensive that this procedure would |
353 | hinder, rather than assist, the understanding of the proposed |
354 | amendment, it is not necessary to use underlining and hyphens as |
355 | indicators of words added or deleted, but, instead, a notation |
356 | must be inserted immediately preceding the proposed amendment in |
357 | substantially the following language: "Substantial rewording of |
358 | bylaw. See bylaw _____ for present text." |
359 | 3. Nonmaterial errors or omissions in the bylaw process |
360 | will not invalidate an otherwise properly promulgated amendment. |
361 | 4. If the bylaws provide for amendment by the board of |
362 | administration, no bylaw may be amended unless it is heard and |
363 | noticed at two consecutive meetings of the board of |
364 | administration that are at least 1 week apart. |
365 | Section 3. Subsection (11) is added to section 718.116, |
366 | Florida Statutes, to read: |
367 | 718.116 Assessments; liability; lien and priority; |
368 | interest; collection.-- |
369 | (11) During the pendency of any foreclosure action of a |
370 | condominium unit, if the unit is occupied by a tenant and the |
371 | unit owner is delinquent in the payment of regular assessments, |
372 | the association may demand that the tenant pay to the |
373 | association the future regular assessments related to the |
374 | condominium unit. The demand shall be continuing in nature, and |
375 | upon demand the tenant shall continue to pay the regular |
376 | assessments to the association until the association releases |
377 | the tenant or the tenant discontinues tenancy in the unit. The |
378 | association shall mail written notice to the unit owner of the |
379 | association's demand that the tenant pay regular assessments to |
380 | the association. The tenant shall not be liable for increases in |
381 | the amount of the regular assessment due unless the tenant was |
382 | reasonably notified of the increase prior to the day that the |
383 | rent is due. The tenant shall be given a credit against rents |
384 | due to the unit owner in the amount of assessments paid to the |
385 | association. The association shall, upon request, provide the |
386 | tenant with written receipts for payments made. The association |
387 | may issue notices under s. 83.56 and may sue for eviction under |
388 | ss. 83.59-83.625 as if the association were a landlord under |
389 | part II of chapter 83 should the tenant fail to pay an |
390 | assessment. However, the association shall not otherwise be |
391 | considered a landlord under chapter 83 and shall specifically |
392 | not have any duty under s. 83.51. The tenant shall not, by |
393 | virtue of payment of assessments, have any of the rights of a |
394 | unit owner to vote in any election or to examine the books and |
395 | records of the association. A court may supersede the effect of |
396 | this subsection by appointing a receiver. |
397 | Section 4. Subsection (1) of section 718.501, Florida |
398 | Statutes, is amended to read: |
399 | 718.501 Authority, responsibility, and duties of Division |
400 | of Florida Condominiums, Timeshares, and Mobile Homes.-- |
401 | (1) The Division of Florida Condominiums, Timeshares, and |
402 | Mobile Homes of the Department of Business and Professional |
403 | Regulation, referred to as the "division" in this part, has the |
404 | power to enforce and ensure compliance with the provisions of |
405 | this chapter and rules relating to the development, |
406 | construction, sale, lease, ownership, operation, and management |
407 | of residential condominium units. In performing its duties, the |
408 | division has complete jurisdiction to investigate complaints and |
409 | enforce compliance with the provisions of this chapter with |
410 | respect to associations that are still under developer control |
411 | and complaints against developers involving improper turnover or |
412 | failure to turnover, pursuant to s. 718.301. However, after |
413 | turnover has occurred, the division shall only have jurisdiction |
414 | to investigate complaints related to financial issues, failure |
415 | to maintain common elements, elections, and unit owner access to |
416 | association records pursuant to s. 718.111(12). |
417 | (a)1. The division may make necessary public or private |
418 | investigations within or outside this state to determine whether |
419 | any person has violated this chapter or any rule or order |
420 | hereunder, to aid in the enforcement of this chapter, or to aid |
421 | in the adoption of rules or forms hereunder. |
422 | 2. The division may submit any official written report, |
423 | worksheet, or other related paper, or a duly certified copy |
424 | thereof, compiled, prepared, drafted, or otherwise made by and |
425 | duly authenticated by a financial examiner or analyst to be |
426 | admitted as competent evidence in any hearing in which the |
427 | financial examiner or analyst is available for cross-examination |
428 | and attests under oath that such documents were prepared as a |
429 | result of an examination or inspection conducted pursuant to |
430 | this chapter. |
431 | (b) The division may require or permit any person to file |
432 | a statement in writing, under oath or otherwise, as the division |
433 | determines, as to the facts and circumstances concerning a |
434 | matter to be investigated. |
435 | (c) For the purpose of any investigation under this |
436 | chapter, the division director or any officer or employee |
437 | designated by the division director may administer oaths or |
438 | affirmations, subpoena witnesses and compel their attendance, |
439 | take evidence, and require the production of any matter which is |
440 | relevant to the investigation, including the existence, |
441 | description, nature, custody, condition, and location of any |
442 | books, documents, or other tangible things and the identity and |
443 | location of persons having knowledge of relevant facts or any |
444 | other matter reasonably calculated to lead to the discovery of |
445 | material evidence. Upon the failure by a person to obey a |
446 | subpoena or to answer questions propounded by the investigating |
447 | officer and upon reasonable notice to all persons affected |
448 | thereby, the division may apply to the circuit court for an |
449 | order compelling compliance. |
450 | (d) Notwithstanding any remedies available to unit owners |
451 | and associations, if the division has reasonable cause to |
452 | believe that a violation of any provision of this chapter or |
453 | related rule has occurred, the division may institute |
454 | enforcement proceedings in its own name against any developer, |
455 | association, officer, or member of the board of administration, |
456 | or its assignees or agents, as follows: |
457 | 1. The division may permit a person whose conduct or |
458 | actions may be under investigation to waive formal proceedings |
459 | and enter into a consent proceeding whereby orders, rules, or |
460 | letters of censure or warning, whether formal or informal, may |
461 | be entered against the person. |
462 | 2. The division may issue an order requiring the |
463 | developer, association, developer-designated officer, or |
464 | developer-designated member of the board of administration, |
465 | developer-designated assignees or agents, community association |
466 | manager, or community association management firm to cease and |
467 | desist from the unlawful practice and take such affirmative |
468 | action as in the judgment of the division will carry out the |
469 | purposes of this chapter. If the division finds that a |
470 | developer, association, officer, or member of the board of |
471 | administration, or its assignees or agents, is violating or is |
472 | about to violate any provision of this chapter, any rule adopted |
473 | or order issued by the division, or any written agreement |
474 | entered into with the division, and presents an immediate danger |
475 | to the public requiring an immediate final order, it may issue |
476 | an emergency cease and desist order reciting with particularity |
477 | the facts underlying such findings. The emergency cease and |
478 | desist order is effective for 90 days. If the division begins |
479 | nonemergency cease and desist proceedings, the emergency cease |
480 | and desist order remains effective until the conclusion of the |
481 | proceedings under ss. 120.569 and 120.57. |
482 | 3. If a developer fails to pay any restitution determined |
483 | by the division to be owed, plus any accrued interest at the |
484 | highest rate permitted by law, within 30 days after expiration |
485 | of any appellate time period of a final order requiring payment |
486 | of restitution or the conclusion of any appeal thereof, |
487 | whichever is later, the division shall bring an action in |
488 | circuit or county court on behalf of any association, class of |
489 | unit owners, lessees, or purchasers for restitution, declaratory |
490 | relief, injunctive relief, or any other available remedy. The |
491 | division may also temporarily revoke its acceptance of the |
492 | filing for the developer to which the restitution relates until |
493 | payment of restitution is made. |
494 | 4. The division may petition the court for the appointment |
495 | of a receiver or conservator. If appointed, the receiver or |
496 | conservator may take action to implement the court order to |
497 | ensure the performance of the order and to remedy any breach |
498 | thereof. In addition to all other means provided by law for the |
499 | enforcement of an injunction or temporary restraining order, the |
500 | circuit court may impound or sequester the property of a party |
501 | defendant, including books, papers, documents, and related |
502 | records, and allow the examination and use of the property by |
503 | the division and a court-appointed receiver or conservator. |
504 | 5. The division may apply to the circuit court for an |
505 | order of restitution whereby the defendant in an action brought |
506 | pursuant to subparagraph 4. shall be ordered to make restitution |
507 | of those sums shown by the division to have been obtained by the |
508 | defendant in violation of this chapter. Such restitution shall, |
509 | at the option of the court, be payable to the conservator or |
510 | receiver appointed pursuant to subparagraph 4. or directly to |
511 | the persons whose funds or assets were obtained in violation of |
512 | this chapter. |
513 | 6. The division may impose a civil penalty against a |
514 | developer or association, or its assignee or agent, for any |
515 | violation of this chapter or a rule adopted under this chapter. |
516 | The division may impose a civil penalty individually against any |
517 | officer or board member who willfully and knowingly violates a |
518 | provision of this chapter, adopted rule, or a final order of the |
519 | division; may order the removal of such individual as an officer |
520 | or from the board of administration or as an officer of the |
521 | association; and may prohibit such individual from serving as an |
522 | officer or on the board of a community association for a period |
523 | of time. The term "willfully and knowingly" means that the |
524 | division informed the officer or board member that his or her |
525 | action or intended action violates this chapter, a rule adopted |
526 | under this chapter, or a final order of the division and that |
527 | the officer or board member refused to comply with the |
528 | requirements of this chapter, a rule adopted under this chapter, |
529 | or a final order of the division. The division, prior to |
530 | initiating formal agency action under chapter 120, shall afford |
531 | the officer or board member an opportunity to voluntarily comply |
532 | with this chapter, a rule adopted under this chapter, or a final |
533 | order of the division. An officer or board member who complies |
534 | within 10 days is not subject to a civil penalty. A penalty may |
535 | be imposed on the basis of each day of continuing violation, but |
536 | in no event shall the penalty for any offense exceed $5,000. By |
537 | January 1, 1998, the division shall adopt, by rule, penalty |
538 | guidelines applicable to possible violations or to categories of |
539 | violations of this chapter or rules adopted by the division. The |
540 | guidelines must specify a meaningful range of civil penalties |
541 | for each such violation of the statute and rules and must be |
542 | based upon the harm caused by the violation, the repetition of |
543 | the violation, and upon such other factors deemed relevant by |
544 | the division. For example, the division may consider whether the |
545 | violations were committed by a developer or owner-controlled |
546 | association, the size of the association, and other factors. The |
547 | guidelines must designate the possible mitigating or aggravating |
548 | circumstances that justify a departure from the range of |
549 | penalties provided by the rules. It is the legislative intent |
550 | that minor violations be distinguished from those which endanger |
551 | the health, safety, or welfare of the condominium residents or |
552 | other persons and that such guidelines provide reasonable and |
553 | meaningful notice to the public of likely penalties that may be |
554 | imposed for proscribed conduct. This subsection does not limit |
555 | the ability of the division to informally dispose of |
556 | administrative actions or complaints by stipulation, agreed |
557 | settlement, or consent order. All amounts collected shall be |
558 | deposited with the Chief Financial Officer to the credit of the |
559 | Division of Florida Condominiums, Timeshares, and Mobile Homes |
560 | Trust Fund. If a developer fails to pay the civil penalty and |
561 | the amount deemed to be owed to the association, the division |
562 | shall issue an order directing that such developer cease and |
563 | desist from further operation until such time as the civil |
564 | penalty is paid or may pursue enforcement of the penalty in a |
565 | court of competent jurisdiction. If an association fails to pay |
566 | the civil penalty, the division shall pursue enforcement in a |
567 | court of competent jurisdiction, and the order imposing the |
568 | civil penalty or the cease and desist order will not become |
569 | effective until 20 days after the date of such order. Any action |
570 | commenced by the division shall be brought in the county in |
571 | which the division has its executive offices or in the county |
572 | where the violation occurred. |
573 | 7. If a unit owner presents the division with proof that |
574 | the unit owner has requested access to official records in |
575 | writing by certified mail, and that after 10 days the unit owner |
576 | again made the same request for access to official records in |
577 | writing by certified mail, and that more than 10 days has |
578 | elapsed since the second request and the association has still |
579 | failed or refused to provide access to official records as |
580 | required by this chapter, the division shall issue a subpoena |
581 | requiring production of the requested records where the records |
582 | are kept pursuant to s. 718.112. |
583 | 8. In addition to subparagraph 6., the division may seek |
584 | the imposition of a civil penalty through the circuit court for |
585 | any violation for which the division may issue a notice to show |
586 | cause under paragraph (r). The civil penalty shall be at least |
587 | $500 but no more than $5,000 for each violation. The court may |
588 | also award to the prevailing party court costs and reasonable |
589 | attorney's fees and, if the division prevails, may also award |
590 | reasonable costs of investigation. |
591 | 9. Notwithstanding subparagraph 6., when the division |
592 | finds that an officer or director has intentionally falsified |
593 | association records with the intent to conceal material facts |
594 | from the division, the board, or unit owners, the division shall |
595 | prohibit the officer or director from acting as an officer or |
596 | director of any condominium, cooperative, or homeowners' |
597 | association for at least 1 year. |
598 | 10. When the division finds that any person has derived an |
599 | improper personal benefit from a condominium association, the |
600 | division shall order the person to pay restitution to the |
601 | association and shall order the person to pay to the division |
602 | the costs of investigation and prosecution. |
603 | (e) The division may prepare and disseminate a prospectus |
604 | and other information to assist prospective owners, purchasers, |
605 | lessees, and developers of residential condominiums in assessing |
606 | the rights, privileges, and duties pertaining thereto. |
607 | (f) The division has authority to adopt rules pursuant to |
608 | ss. 120.536(1) and 120.54 to implement and enforce the |
609 | provisions of this chapter. |
610 | (g) The division shall establish procedures for providing |
611 | notice to an association and the developer during the period |
612 | where the developer controls the association when the division |
613 | is considering the issuance of a declaratory statement with |
614 | respect to the declaration of condominium or any related |
615 | document governing in such condominium community. |
616 | (h) The division shall furnish each association which pays |
617 | the fees required by paragraph (2)(a) a copy of this act, |
618 | subsequent changes to this act on an annual basis, an amended |
619 | version of this act as it becomes available from the Secretary |
620 | of State's office on a biennial basis, and the rules adopted |
621 | thereto on an annual basis. |
622 | (i) The division shall annually provide each association |
623 | with a summary of declaratory statements and formal legal |
624 | opinions relating to the operations of condominiums which were |
625 | rendered by the division during the previous year. |
626 | (j) The division shall provide training and educational |
627 | programs for condominium association board members and unit |
628 | owners. The training may, in the division's discretion, include |
629 | web-based electronic media, and live training and seminars in |
630 | various locations throughout the state. The division shall have |
631 | the authority to review and approve education and training |
632 | programs for board members and unit owners offered by providers |
633 | and shall maintain a current list of approved programs and |
634 | providers and shall make such list available to board members |
635 | and unit owners in a reasonable and cost-effective manner. |
636 | (k) The division shall maintain a toll-free telephone |
637 | number accessible to condominium unit owners. |
638 | (l) The division shall develop a program to certify both |
639 | volunteer and paid mediators to provide mediation of condominium |
640 | disputes. The division shall provide, upon request, a list of |
641 | such mediators to any association, unit owner, or other |
642 | participant in arbitration proceedings under s. 718.1255 |
643 | requesting a copy of the list. The division shall include on the |
644 | list of volunteer mediators only the names of persons who have |
645 | received at least 20 hours of training in mediation techniques |
646 | or who have mediated at least 20 disputes. In order to become |
647 | initially certified by the division, paid mediators must be |
648 | certified by the Supreme Court to mediate court cases in county |
649 | or circuit courts. However, the division may adopt, by rule, |
650 | additional factors for the certification of paid mediators, |
651 | which factors must be related to experience, education, or |
652 | background. Any person initially certified as a paid mediator by |
653 | the division must, in order to continue to be certified, comply |
654 | with the factors or requirements imposed by rules adopted by the |
655 | division. |
656 | (m) When a complaint is made, the division shall conduct |
657 | its inquiry with due regard to the interests of the affected |
658 | parties. Within 30 days after receipt of a complaint, the |
659 | division shall acknowledge the complaint in writing and notify |
660 | the complainant whether the complaint is within the jurisdiction |
661 | of the division and whether additional information is needed by |
662 | the division from the complainant. The division shall conduct |
663 | its investigation and shall, within 90 days after receipt of the |
664 | original complaint or of timely requested additional |
665 | information, take action upon the complaint. However, the |
666 | failure to complete the investigation within 90 days does not |
667 | prevent the division from continuing the investigation, |
668 | accepting or considering evidence obtained or received after 90 |
669 | days, or taking administrative action if reasonable cause exists |
670 | to believe that a violation of this chapter or a rule of the |
671 | division has occurred. If an investigation is not completed |
672 | within the time limits established in this paragraph, the |
673 | division shall, on a monthly basis, notify the complainant in |
674 | writing of the status of the investigation. When reporting its |
675 | action to the complainant, the division shall inform the |
676 | complainant of any right to a hearing pursuant to ss. 120.569 |
677 | and 120.57. |
678 | (n) Condominium association directors, officers, and |
679 | employees; condominium developers; community association |
680 | managers; and community association management firms have an |
681 | ongoing duty to reasonably cooperate with the division in any |
682 | investigation pursuant to this section. The division shall refer |
683 | to local law enforcement authorities any person whom the |
684 | division believes has altered, destroyed, concealed, or removed |
685 | any record, document, or thing required to be kept or maintained |
686 | by this chapter with the purpose to impair its verity or |
687 | availability in the department's investigation. |
688 | (o) The division may: |
689 | 1. Contract with agencies in this state or other |
690 | jurisdictions to perform investigative functions; or |
691 | 2. Accept grants-in-aid from any source. |
692 | (p) The division shall cooperate with similar agencies in |
693 | other jurisdictions to establish uniform filing procedures and |
694 | forms, public offering statements, advertising standards, and |
695 | rules and common administrative practices. |
696 | (q) The division shall consider notice to a developer to |
697 | be complete when it is delivered to the developer's address |
698 | currently on file with the division. |
699 | (r) In addition to its enforcement authority, the division |
700 | may issue a notice to show cause, which shall provide for a |
701 | hearing, upon written request, in accordance with chapter 120. |
702 | (s) The division shall submit to the Governor, the |
703 | President of the Senate, the Speaker of the House of |
704 | Representatives, and the chairs of the legislative |
705 | appropriations committees an annual report that includes, but |
706 | need not be limited to, the number of training programs provided |
707 | for condominium association board members and unit owners, the |
708 | number of complaints received by type, the number and percent of |
709 | complaints acknowledged in writing within 30 days and the number |
710 | and percent of investigations acted upon within 90 days in |
711 | accordance with paragraph (m), and the number of investigations |
712 | exceeding the 90-day requirement. The annual report shall also |
713 | include an evaluation of the division's core business processes |
714 | and make recommendations for improvements, including statutory |
715 | changes. The report shall be submitted by September 30 following |
716 | the end of the fiscal year. |
717 |
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718 | ----------------------------------------------------- |
719 | T I T L E A M E N D M E N T |
720 | Remove lines 3-19 and insert: |
721 | 718.111, F.S.; providing that an association has power to |
722 | borrow money; requiring two-thirds vote of members to |
723 | borrow money above a certain threshold; requiring certain |
724 | notice of meeting; requiring that association access to a |
725 | unit must be by two persons, one of whom must be a board |
726 | member or manager or employee of the association; providing |
727 | an exception for emergencies; amending s. 718.112, F.S.; |
728 | revising notice requirements for board of administration |
729 | meetings; requiring each newly elected director to certify |
730 | to the secretary of the association that he or she has read |
731 | the association's declarations of covenants and |
732 | restrictions, articles of incorporation, bylaws, and |
733 | current written policies and will work to uphold such |
734 | documents and policies to the best of his or her ability; |
735 | providing that a failure to timely file the statement |
736 | automatically disqualifies the director from service on the |
737 | association's board of directors; requiring the secretary |
738 | of the association to retain a director's certification for |
739 | inspection by the members for a specified period of years |
740 | after a director's election; providing requirements for |
741 | bylaw amendments by a board of administration; amending s. |
742 | 718.116, F.S.; authorizing association demands for |
743 | assessment payments from tenants of delinquent owners |
744 | during pendency of a foreclosure action of a condominium |
745 | unit; providing for notice; providing for credits against |
746 | rent for assessment payments by tenants; providing for |
747 | eviction proceedings for nonpayment; providing for effect |
748 | of provisions on rights and duties of the tenant and |
749 | association; amending s. 718.501, F.S.; providing for |
750 | division jurisdiction to investigate complaints concerning |
751 | failure to maintain common elements; prohibiting an officer |
752 | or director from acting as such for a specified period |
753 | after having been found to have committed specified |
754 | violations; providing for payment of restitution and costs |
755 | of investigation and prosecution in certain circumstances; |
756 |
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