Florida Senate - 2020                                    SB 1752
       By Senator Pizzo
       38-00215A-20                                          20201752__
    1                        A bill to be entitled                      
    2         An act relating to condominium associations; amending
    3         s. 718.111, F.S.; revising criminal penalties relating
    4         to the acceptance of things or services of value or
    5         kickbacks; revising the documents required to be
    6         included with accounting records; requiring an
    7         association to maintain official records in a
    8         specified manner; revising requirements for the
    9         creation of a rebuttable presumption relating to the
   10         provision of records; authorizing an association to
   11         direct certain persons to the association’s website to
   12         fulfill certain obligations relating to the inspection
   13         of records; requiring an association to provide a
   14         checklist and a sworn affidavit to persons requesting
   15         to inspect records; requiring the association to
   16         maintain the checklist for a specified period of time;
   17         creating a rebuttable presumption for an association
   18         that provides such checklist and sworn affidavit;
   19         providing criminal penalties for certain violations
   20         relating to official association records; defining the
   21         term “repeatedly”; requiring certain associations to
   22         post copies of certain documents on their websites by
   23         a specified date; revising criminal penalties relating
   24         to the use of association debit cards; defining the
   25         term “lawful obligation of the association”; creating
   26         s. 718.129, F.S.; providing criminal penalties for
   27         fraudulent voting activities related to association
   28         elections; amending s. 718.501, F.S.; revising the
   29         jurisdiction of the Division of Florida Condominiums,
   30         Timeshares, and Mobile Homes of the Department of
   31         Business and Professional Regulation with regard to
   32         investigating complaints; defining the term “financial
   33         issues”; providing an effective date.
   35  Be It Enacted by the Legislature of the State of Florida:
   37         Section 1. Paragraphs (a) and (d) of subsection (1),
   38  paragraphs (a), (b), (c), and (g) of subsection (12), and
   39  paragraph (b) of subsection (15) of section 718.111, Florida
   40  Statutes, are amended to read:
   41         718.111 The association.—
   42         (1) CORPORATE ENTITY.—
   43         (a) The operation of the condominium shall be by the
   44  association, which must be a Florida corporation for profit or a
   45  Florida corporation not for profit. However, any association
   46  which was in existence on January 1, 1977, need not be
   47  incorporated. The owners of units shall be shareholders or
   48  members of the association. The officers and directors of the
   49  association have a fiduciary relationship to the unit owners. It
   50  is the intent of the Legislature that nothing in this paragraph
   51  shall be construed as providing for or removing a requirement of
   52  a fiduciary relationship between any manager employed by the
   53  association and the unit owners. An officer, director, or
   54  manager may not solicit, offer to accept, or accept any thing or
   55  service of value or kickback for which consideration has not
   56  been provided for his or her own benefit or that of his or her
   57  immediate family, from any person providing or proposing to
   58  provide goods or services to the association. Any such officer,
   59  director, or manager who knowingly so solicits, offers to
   60  accept, or accepts any thing or service of value or kickback
   61  commits a felony of the third degree, punishable as provided in
   62  s. 775.082, s. 775.083, or s. 775.084, and is subject to a civil
   63  penalty pursuant to s. 718.501(1)(d) and, if applicable, a
   64  criminal penalty as provided in paragraph (d). However, this
   65  paragraph does not prohibit an officer, director, or manager
   66  from accepting services or items received in connection with
   67  trade fairs or education programs. An association may operate
   68  more than one condominium.
   69         (d) As required by s. 617.0830, an officer, director, or
   70  agent shall discharge his or her duties in good faith, with the
   71  care an ordinarily prudent person in a like position would
   72  exercise under similar circumstances, and in a manner he or she
   73  reasonably believes to be in the interests of the association.
   74  An officer, director, or agent shall be liable for monetary
   75  damages as provided in s. 617.0834 if such officer, director, or
   76  agent breached or failed to perform his or her duties and the
   77  breach of, or failure to perform, his or her duties constitutes
   78  a violation of criminal law as provided in s. 617.0834;
   79  constitutes a transaction from which the officer or director
   80  derived an improper personal benefit, either directly or
   81  indirectly; or constitutes recklessness or an act or omission
   82  that was in bad faith, with malicious purpose, or in a manner
   83  exhibiting wanton and willful disregard of human rights, safety,
   84  or property. Forgery of a ballot envelope or voting certificate
   85  used in a condominium association election is punishable as
   86  provided in s. 831.01, the theft or embezzlement of funds of a
   87  condominium association is punishable as provided in s. 812.014,
   88  and the destruction of or the refusal to allow inspection or
   89  copying of an official record of a condominium association that
   90  is accessible to unit owners within the time periods required by
   91  general law in furtherance of any crime is punishable as
   92  tampering with physical evidence as provided in s. 918.13 or as
   93  obstruction of justice as provided in chapter 843. An officer or
   94  director charged by information or indictment with a crime
   95  referenced in this paragraph must be removed from office, and
   96  the vacancy shall be filled as provided in s. 718.112(2)(d)2.
   97  until the end of the officer’s or director’s period of
   98  suspension or the end of his or her term of office, whichever
   99  occurs first. If a criminal charge is pending against the
  100  officer or director, he or she may not be appointed or elected
  101  to a position as an officer or a director of any association and
  102  may not have access to the official records of any association,
  103  except pursuant to a court order. However, if the charges are
  104  resolved without a finding of guilt, the officer or director
  105  must be reinstated for the remainder of his or her term of
  106  office, if any.
  107         (12) OFFICIAL RECORDS.—
  108         (a) From the inception of the association, the association
  109  shall maintain each of the following items, if applicable, which
  110  constitutes the official records of the association:
  111         1. A copy of the plans, permits, warranties, and other
  112  items provided by the developer pursuant to s. 718.301(4).
  113         2. A photocopy of the recorded declaration of condominium
  114  of each condominium operated by the association and each
  115  amendment to each declaration.
  116         3. A photocopy of the recorded bylaws of the association
  117  and each amendment to the bylaws.
  118         4. A certified copy of the articles of incorporation of the
  119  association, or other documents creating the association, and
  120  each amendment thereto.
  121         5. A copy of the current rules of the association.
  122         6. A book or books that contain the minutes of all meetings
  123  of the association, the board of administration, and the unit
  124  owners.
  125         7. A current roster of all unit owners and their mailing
  126  addresses, unit identifications, voting certifications, and, if
  127  known, telephone numbers. The association shall also maintain
  128  the e-mail addresses and facsimile numbers of unit owners
  129  consenting to receive notice by electronic transmission. The e
  130  mail addresses and facsimile numbers are not accessible to unit
  131  owners if consent to receive notice by electronic transmission
  132  is not provided in accordance with sub-subparagraph (c)5.3.
  133  (c)3.e. However, the association is not liable for an
  134  inadvertent disclosure of the e-mail address or facsimile number
  135  for receiving electronic transmission of notices.
  136         8. All current insurance policies of the association and
  137  condominiums operated by the association.
  138         9. A current copy of any management agreement, lease, or
  139  other contract to which the association is a party or under
  140  which the association or the unit owners have an obligation or
  141  responsibility.
  142         10. Bills of sale or transfer for all property owned by the
  143  association.
  144         11. Accounting records for the association and separate
  145  accounting records for each condominium that the association
  146  operates. Any person who knowingly or intentionally defaces or
  147  destroys such records, or who knowingly or intentionally fails
  148  to create or maintain such records, with the intent of causing
  149  harm to the association or one or more of its members, is
  150  personally subject to a civil penalty pursuant to s.
  151  718.501(1)(d). The accounting records must include, but are not
  152  limited to:
  153         a. Accurate, itemized, and detailed records of all receipts
  154  and expenditures.
  155         b. A current account and a monthly, bimonthly, or quarterly
  156  statement of the account for each unit designating the name of
  157  the unit owner, the due date and amount of each assessment, the
  158  amount paid on the account, and the balance due.
  159         c. All audits, reviews, accounting statements, and
  160  financial reports of the association or condominium.
  161         d. All contracts for work to be performed. Bids for work to
  162  be performed are also considered official records and must be
  163  maintained by the association.
  164         e.All bank statements, canceled checks, and credit card
  165  statements.
  166         f.All invoices, transaction receipts, deposit slips, or
  167  other underlying documentation that substantiates any receipt or
  168  expenditure of funds by the association.
  169         12. Ballots, sign-in sheets, voting proxies, and all other
  170  papers and electronic records relating to voting by unit owners,
  171  which must be maintained for 1 year from the date of the
  172  election, vote, or meeting to which the document relates,
  173  notwithstanding paragraph (b).
  174         13. All rental records if the association is acting as
  175  agent for the rental of condominium units.
  176         14. A copy of the current question and answer sheet as
  177  described in s. 718.504.
  178         15. All other written records of the association not
  179  specifically included in the foregoing which are related to the
  180  operation of the association.
  181         16. A copy of the inspection report as described in s.
  182  718.301(4)(p).
  183         17. Bids for materials, equipment, or services.
  184         (b) The official records specified in subparagraphs (a)1.
  185  6. must be permanently maintained from the inception of the
  186  association. All other official records must be maintained
  187  within the state for at least 7 years, unless otherwise provided
  188  by general law. All official records must be maintained in a
  189  manner and format prescribed by division rule so that the
  190  records are easily accessible for inspection. The records of the
  191  association shall be made available to a unit owner within 45
  192  miles of the condominium property or within the county in which
  193  the condominium property is located within 10 working days after
  194  receipt of a written request by the board or its designee.
  195  However, such distance requirement does not apply to an
  196  association governing a timeshare condominium. This paragraph
  197  may be complied with by having a copy of the official records of
  198  the association available for inspection or copying on the
  199  condominium property or association property, or the association
  200  may offer the option of making the records available to a unit
  201  owner electronically via the Internet or by allowing the records
  202  to be viewed in electronic format on a computer screen and
  203  printed upon request. The association is not responsible for the
  204  use or misuse of the information provided to an association
  205  member or his or her authorized representative pursuant to the
  206  compliance requirements of this chapter unless the association
  207  has an affirmative duty not to disclose such information
  208  pursuant to this chapter.
  209         (c)1.a. The official records of the association are open to
  210  inspection by any association member or the authorized
  211  representative of such member at all reasonable times. The right
  212  to inspect the records includes the right to make or obtain
  213  copies, at the reasonable expense, if any, of the member or
  214  authorized representative of such member. A renter of a unit has
  215  a right to inspect and copy the association’s bylaws and rules.
  216  The association may adopt reasonable rules regarding the
  217  frequency, time, location, notice, and manner of record
  218  inspections and copying. The failure of an association to
  219  provide the records within 10 working days after receipt of a
  220  written request that complies with the association’s document
  221  inspection rule creates a rebuttable presumption that the
  222  association willfully failed to comply with this paragraph. A
  223  unit owner who is denied access to official records is entitled
  224  to the actual damages or minimum damages for the association’s
  225  willful failure to comply. Minimum damages are $50 per calendar
  226  day for up to 10 days, beginning on the 11th working day after
  227  receipt of the written request that complies with the
  228  association’s document inspection rule. The failure to permit
  229  inspection entitles any person prevailing in an enforcement
  230  action to recover reasonable attorney fees from the person in
  231  control of the records who, directly or indirectly, knowingly
  232  denied access to the records. If the requested records are
  233  posted on an association’s website, the association may fulfill
  234  its obligations as provided under this paragraph by directing to
  235  the website all persons authorized to request access to official
  236  records pursuant to this paragraph.
  237         b.In response to a statutorily compliant written request
  238  to inspect records, the association must simultaneously provide
  239  a checklist to the requestor of all records made available for
  240  inspection and copying and a sworn affidavit in which the person
  241  facilitating or handling the association’s compliance with the
  242  request attests to the veracity of the checklist provided to the
  243  requestor. The checklist must also identify any of the
  244  association’s official records that were not made available to
  245  the requestor. An association must maintain a checklist provided
  246  under this sub-subparagraph for 7 years. An association
  247  delivering a checklist and affidavit pursuant to this sub
  248  subparagraph creates a rebuttable presumption that the
  249  association has complied with this paragraph.
  250         2. Any director or member of the board or association or a
  251  community association manager who knowingly, willfully, and
  252  repeatedly violates subparagraph 1. commits a misdemeanor of the
  253  second degree, punishable as provided in s. 775.082 or s.
  254  775.083. For purposes of this subparagraph, the term
  255  “repeatedly” means two or more violations within a 12-month
  256  period.
  257         3.2. Any person who knowingly or intentionally defaces or
  258  destroys accounting records that are required by this chapter to
  259  be maintained during the period for which such records are
  260  required to be maintained, or who knowingly or intentionally
  261  fails to create or maintain accounting records that are required
  262  to be created or maintained, with the intent of causing harm to
  263  the association or one or more of its members, commits a
  264  misdemeanor of the first degree, punishable as provided in s.
  265  775.082 or s. 775.083 is personally subject to a civil penalty
  266  pursuant to s. 718.501(1)(d).
  267         4. Any person who willfully and knowingly refuses to
  268  release or otherwise produce association records with the intent
  269  to avoid or escape detection, arrest, trial, or punishment for
  270  the commission of a crime, or to assist another person with such
  271  avoidance or escape, commits a felony of the third degree,
  272  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  273         5.3. The association shall maintain an adequate number of
  274  copies of the declaration, articles of incorporation, bylaws,
  275  and rules, and all amendments to each of the foregoing, as well
  276  as the question and answer sheet as described in s. 718.504 and
  277  year-end financial information required under this section, on
  278  the condominium property to ensure their availability to unit
  279  owners and prospective purchasers, and may charge its actual
  280  costs for preparing and furnishing these documents to those
  281  requesting the documents. An association shall allow a member or
  282  his or her authorized representative to use a portable device,
  283  including a smartphone, tablet, portable scanner, or any other
  284  technology capable of scanning or taking photographs, to make an
  285  electronic copy of the official records in lieu of the
  286  association’s providing the member or his or her authorized
  287  representative with a copy of such records. The association may
  288  not charge a member or his or her authorized representative for
  289  the use of a portable device. Notwithstanding this paragraph,
  290  the following records are not accessible to unit owners:
  291         a. Any record protected by the lawyer-client privilege as
  292  described in s. 90.502 and any record protected by the work
  293  product privilege, including a record prepared by an association
  294  attorney or prepared at the attorney’s express direction, which
  295  reflects a mental impression, conclusion, litigation strategy,
  296  or legal theory of the attorney or the association, and which
  297  was prepared exclusively for civil or criminal litigation or for
  298  adversarial administrative proceedings, or which was prepared in
  299  anticipation of such litigation or proceedings until the
  300  conclusion of the litigation or proceedings.
  301         b. Information obtained by an association in connection
  302  with the approval of the lease, sale, or other transfer of a
  303  unit.
  304         c. Personnel records of association or management company
  305  employees, including, but not limited to, disciplinary, payroll,
  306  health, and insurance records. For purposes of this sub
  307  subparagraph, the term “personnel records” does not include
  308  written employment agreements with an association employee or
  309  management company, or budgetary or financial records that
  310  indicate the compensation paid to an association employee.
  311         d. Medical records of unit owners.
  312         e. Social security numbers, driver license numbers, credit
  313  card numbers, e-mail addresses, telephone numbers, facsimile
  314  numbers, emergency contact information, addresses of a unit
  315  owner other than as provided to fulfill the association’s notice
  316  requirements, and other personal identifying information of any
  317  person, excluding the person’s name, unit designation, mailing
  318  address, property address, and any address, e-mail address, or
  319  facsimile number provided to the association to fulfill the
  320  association’s notice requirements. Notwithstanding the
  321  restrictions in this sub-subparagraph, an association may print
  322  and distribute to parcel owners a directory containing the name,
  323  parcel address, and all telephone numbers of each parcel owner.
  324  However, an owner may exclude his or her telephone numbers from
  325  the directory by so requesting in writing to the association. An
  326  owner may consent in writing to the disclosure of other contact
  327  information described in this sub-subparagraph. The association
  328  is not liable for the inadvertent disclosure of information that
  329  is protected under this sub-subparagraph if the information is
  330  included in an official record of the association and is
  331  voluntarily provided by an owner and not requested by the
  332  association.
  333         f. Electronic security measures that are used by the
  334  association to safeguard data, including passwords.
  335         g. The software and operating system used by the
  336  association which allow the manipulation of data, even if the
  337  owner owns a copy of the same software used by the association.
  338  The data is part of the official records of the association.
  339         (g)1. By January 1, 2022 2019, an association managing a
  340  condominium with 25 150 or more units which does not contain
  341  timeshare units shall post digital copies of the documents
  342  specified in subparagraph 2. on its website.
  343         a. The association’s website must be:
  344         (I) An independent website or web portal wholly owned and
  345  operated by the association; or
  346         (II) A website or web portal operated by a third-party
  347  provider with whom the association owns, leases, rents, or
  348  otherwise obtains the right to operate a web page, subpage, web
  349  portal, or collection of subpages or web portals dedicated to
  350  the association’s activities and on which required notices,
  351  records, and documents may be posted by the association.
  352         b. The association’s website must be accessible through the
  353  Internet and must contain a subpage, web portal, or other
  354  protected electronic location that is inaccessible to the
  355  general public and accessible only to unit owners and employees
  356  of the association.
  357         c. Upon a unit owner’s written request, the association
  358  must provide the unit owner with a username and password and
  359  access to the protected sections of the association’s website
  360  that contain any notices, records, or documents that must be
  361  electronically provided.
  362         2. A current copy of the following documents must be posted
  363  in digital format on the association’s website:
  364         a. The recorded declaration of condominium of each
  365  condominium operated by the association and each amendment to
  366  each declaration.
  367         b. The recorded bylaws of the association and each
  368  amendment to the bylaws.
  369         c. The articles of incorporation of the association, or
  370  other documents creating the association, and each amendment
  371  thereto. The copy posted pursuant to this sub-subparagraph must
  372  be a copy of the articles of incorporation filed with the
  373  Department of State.
  374         d. The rules of the association.
  375         e. A list of all executory contracts or documents to which
  376  the association is a party or under which the association or the
  377  unit owners have an obligation or responsibility and, after
  378  bidding for the related materials, equipment, or services has
  379  closed, a list of bids received by the association within the
  380  past year. Summaries of bids for materials, equipment, or
  381  services which exceed $500 must be maintained on the website for
  382  1 year. In lieu of summaries, complete copies of the bids may be
  383  posted.
  384         f. The annual budget required by s. 718.112(2)(f) and any
  385  proposed budget to be considered at the annual meeting.
  386         g. The financial report required by subsection (13) and any
  387  monthly income or expense statement to be considered at a
  388  meeting.
  389         h. The certification of each director required by s.
  390  718.112(2)(d)4.b.
  391         i. All contracts or transactions between the association
  392  and any director, officer, corporation, firm, or association
  393  that is not an affiliated condominium association or any other
  394  entity in which an association director is also a director or
  395  officer and financially interested.
  396         j. Any contract or document regarding a conflict of
  397  interest or possible conflict of interest as provided in ss.
  398  468.436(2)(b)6. and 718.3027(3).
  399         k. The notice of any unit owner meeting and the agenda for
  400  the meeting, as required by s. 718.112(2)(d)3., no later than 14
  401  days before the meeting. The notice must be posted in plain view
  402  on the front page of the website, or on a separate subpage of
  403  the website labeled “Notices” which is conspicuously visible and
  404  linked from the front page. The association must also post on
  405  its website any document to be considered and voted on by the
  406  owners during the meeting or any document listed on the agenda
  407  at least 7 days before the meeting at which the document or the
  408  information within the document will be considered.
  409         l. Notice of any board meeting, the agenda, and any other
  410  document required for the meeting as required by s.
  411  718.112(2)(c), which must be posted no later than the date
  412  required for notice pursuant to s. 718.112(2)(c).
  413         3. The association shall ensure that the information and
  414  records described in paragraph (c), which are not allowed to be
  415  accessible to unit owners, are not posted on the association’s
  416  website. If protected information or information restricted from
  417  being accessible to unit owners is included in documents that
  418  are required to be posted on the association’s website, the
  419  association shall ensure the information is redacted before
  420  posting the documents online. Notwithstanding the foregoing, the
  421  association or its agent is not liable for disclosing
  422  information that is protected or restricted pursuant to this
  423  paragraph unless such disclosure was made with a knowing or
  424  intentional disregard of the protected or restricted nature of
  425  such information.
  426         4. The failure of the association to post information
  427  required under subparagraph 2. is not in and of itself
  428  sufficient to invalidate any action or decision of the
  429  association’s board or its committees.
  430         5.By January 1, 2022, an association managing 25 or more
  431  units, not including timeshare units, shall post on its website
  432  digital copies of all official records subject to inspection by
  433  tenants or unit owners or their authorized representatives.
  434         (15) DEBIT CARDS.—
  435         (b) A person who uses Use of a debit card issued in the
  436  name of the association, or billed directly to the association,
  437  for any expense that is not a lawful obligation of the
  438  association commits theft under s. 812.014. For the purposes of
  439  this paragraph, a “lawful obligation of the association” means
  440  an obligation that has been properly preapproved by the board
  441  and is reflected in the meeting minutes or the written budget
  442  may be prosecuted as credit card fraud pursuant to s. 817.61.
  443         Section 2. Section 718.129, Florida Statutes, is created to
  444  read:
  445         718.129 Fraudulent voting activities related to association
  446  elections; penalties.—
  447         (1) Each of the following acts is a fraudulent voting
  448  activity related to association elections and constitutes a
  449  felony of the third degree, punishable as provided in s.
  450  775.082, s. 775.083, or s. 775.084:
  451         (a) Willfully and falsely swearing or affirming any oath or
  452  affirmation, or willfully procuring another person to swear or
  453  affirm falsely to an oath or affirmation, in connection with or
  454  arising out of voting or elections.
  455         (b) Perpetrating or attempting to perpetrate, or aiding in
  456  the perpetration of, any fraud in connection with any vote cast,
  457  to be cast, or attempted to be cast.
  458         (c) Preventing an elector from voting, or preventing an
  459  elector from voting as the elector intended, by fraudulently
  460  changing or attempting to change a ballot, ballot envelope,
  461  vote, or voting certificate of the elector.
  462         (d) Using bribery, menace, threat, or any other corruption
  463  to attempt, directly or indirectly, to influence, deceive, or
  464  deter any elector in voting.
  465         (e) Directly or indirectly giving or promising anything of
  466  value to another person with the intent to buy the vote of that
  467  person or another person or to corruptly influence that person
  468  or another person in casting his or her vote. However, this
  469  paragraph does not apply to the serving of food to be consumed
  470  at an election rally or meeting or to any item of nominal value
  471  which is used as an election advertisement, including a campaign
  472  message designed to be worn by a person.
  473         (f) Directly or indirectly using or threatening to use
  474  force, violence, or intimidation or any tactic of coercion or
  475  intimidation to induce or compel an individual to vote or
  476  refrain from voting in an election or on any particular ballot
  477  measure.
  478         (2) Each of the following acts constitutes a felony of the
  479  third degree, punishable as provided in s. 775.082, s. 775.083,
  480  or s. 775.084:
  481         (a) Knowingly aiding, abetting, or advising a person in the
  482  commission of a fraudulent voting activity related to
  483  association elections.
  484         (b) Agreeing, conspiring, combining, or confederating with
  485  at least one other person to commit a fraudulent voting activity
  486  related to association elections.
  487         (c) Having knowledge of a fraudulent voting activity
  488  related to association elections and giving any aid to the
  489  offender with intent that the offender avoid or escape
  490  detection, arrest, trial, or punishment. This paragraph does not
  491  apply to a licensed attorney giving legal advice to a client.
  492         Section 3. Subsection (1) of section 718.501, Florida
  493  Statutes, is amended to read:
  494         718.501 Authority, responsibility, and duties of Division
  495  of Florida Condominiums, Timeshares, and Mobile Homes.—
  496         (1) The division may enforce and ensure compliance with the
  497  provisions of this chapter and rules relating to the
  498  development, construction, sale, lease, ownership, operation,
  499  and management of residential condominium units. In performing
  500  its duties, the division has complete jurisdiction to
  501  investigate complaints and enforce compliance with respect to
  502  associations that are still under developer control or the
  503  control of a bulk assignee or bulk buyer pursuant to part VII of
  504  this chapter and complaints against developers, bulk assignees,
  505  or bulk buyers involving improper turnover or failure to
  506  turnover, pursuant to s. 718.301. However, after turnover has
  507  occurred, the division has jurisdiction to investigate
  508  complaints related only to financial issues, elections,
  509  maintenance of official records, and unit owner access to
  510  association records pursuant to s. 718.111(12). As used in this
  511  subsection, the term “financial issue” means an issue related to
  512  operating budgets; reserve schedules; financial records under s.
  513  718.111(12)(a)11.; notices of meetings and meeting minutes for
  514  budget or financial statement related meetings; any assessment
  515  for common expenses, fees, or fines; commingling of funds; and
  516  any other record necessary to determine the revenues and
  517  expenses of the association. The division may adopt rules to
  518  further define the term “financial issue.”
  519         (a)1. The division may make necessary public or private
  520  investigations within or outside this state to determine whether
  521  any person has violated this chapter or any rule or order
  522  hereunder, to aid in the enforcement of this chapter, or to aid
  523  in the adoption of rules or forms.
  524         2. The division may submit any official written report,
  525  worksheet, or other related paper, or a duly certified copy
  526  thereof, compiled, prepared, drafted, or otherwise made by and
  527  duly authenticated by a financial examiner or analyst to be
  528  admitted as competent evidence in any hearing in which the
  529  financial examiner or analyst is available for cross-examination
  530  and attests under oath that such documents were prepared as a
  531  result of an examination or inspection conducted pursuant to
  532  this chapter.
  533         (b) The division may require or permit any person to file a
  534  statement in writing, under oath or otherwise, as the division
  535  determines, as to the facts and circumstances concerning a
  536  matter to be investigated.
  537         (c) For the purpose of any investigation under this
  538  chapter, the division director or any officer or employee
  539  designated by the division director may administer oaths or
  540  affirmations, subpoena witnesses and compel their attendance,
  541  take evidence, and require the production of any matter which is
  542  relevant to the investigation, including the existence,
  543  description, nature, custody, condition, and location of any
  544  books, documents, or other tangible things and the identity and
  545  location of persons having knowledge of relevant facts or any
  546  other matter reasonably calculated to lead to the discovery of
  547  material evidence. Upon the failure by a person to obey a
  548  subpoena or to answer questions propounded by the investigating
  549  officer and upon reasonable notice to all affected persons, the
  550  division may apply to the circuit court for an order compelling
  551  compliance.
  552         (d) Notwithstanding any remedies available to unit owners
  553  and associations, if the division has reasonable cause to
  554  believe that a violation of any provision of this chapter or
  555  related rule has occurred, the division may institute
  556  enforcement proceedings in its own name against any developer,
  557  bulk assignee, bulk buyer, association, officer, or member of
  558  the board of administration, or its assignees or agents, as
  559  follows:
  560         1. The division may permit a person whose conduct or
  561  actions may be under investigation to waive formal proceedings
  562  and enter into a consent proceeding whereby orders, rules, or
  563  letters of censure or warning, whether formal or informal, may
  564  be entered against the person.
  565         2. The division may issue an order requiring the developer,
  566  bulk assignee, bulk buyer, association, developer-designated
  567  officer, or developer-designated member of the board of
  568  administration, developer-designated assignees or agents, bulk
  569  assignee-designated assignees or agents, bulk buyer-designated
  570  assignees or agents, community association manager, or community
  571  association management firm to cease and desist from the
  572  unlawful practice and take such affirmative action as in the
  573  judgment of the division carry out the purposes of this chapter.
  574  If the division finds that a developer, bulk assignee, bulk
  575  buyer, association, officer, or member of the board of
  576  administration, or its assignees or agents, is violating or is
  577  about to violate any provision of this chapter, any rule adopted
  578  or order issued by the division, or any written agreement
  579  entered into with the division, and presents an immediate danger
  580  to the public requiring an immediate final order, it may issue
  581  an emergency cease and desist order reciting with particularity
  582  the facts underlying such findings. The emergency cease and
  583  desist order is effective for 90 days. If the division begins
  584  nonemergency cease and desist proceedings, the emergency cease
  585  and desist order remains effective until the conclusion of the
  586  proceedings under ss. 120.569 and 120.57.
  587         3. If a developer, bulk assignee, or bulk buyer, fails to
  588  pay any restitution determined by the division to be owed, plus
  589  any accrued interest at the highest rate permitted by law,
  590  within 30 days after expiration of any appellate time period of
  591  a final order requiring payment of restitution or the conclusion
  592  of any appeal thereof, whichever is later, the division must
  593  bring an action in circuit or county court on behalf of any
  594  association, class of unit owners, lessees, or purchasers for
  595  restitution, declaratory relief, injunctive relief, or any other
  596  available remedy. The division may also temporarily revoke its
  597  acceptance of the filing for the developer to which the
  598  restitution relates until payment of restitution is made.
  599         4. The division may petition the court for appointment of a
  600  receiver or conservator. If appointed, the receiver or
  601  conservator may take action to implement the court order to
  602  ensure the performance of the order and to remedy any breach
  603  thereof. In addition to all other means provided by law for the
  604  enforcement of an injunction or temporary restraining order, the
  605  circuit court may impound or sequester the property of a party
  606  defendant, including books, papers, documents, and related
  607  records, and allow the examination and use of the property by
  608  the division and a court-appointed receiver or conservator.
  609         5. The division may apply to the circuit court for an order
  610  of restitution whereby the defendant in an action brought
  611  pursuant to subparagraph 4. is ordered to make restitution of
  612  those sums shown by the division to have been obtained by the
  613  defendant in violation of this chapter. At the option of the
  614  court, such restitution is payable to the conservator or
  615  receiver appointed pursuant to subparagraph 4. or directly to
  616  the persons whose funds or assets were obtained in violation of
  617  this chapter.
  618         6. The division may impose a civil penalty against a
  619  developer, bulk assignee, or bulk buyer, or association, or its
  620  assignee or agent, for any violation of this chapter or related
  621  rule. The division may impose a civil penalty individually
  622  against an officer or board member who willfully and knowingly
  623  violates a provision of this chapter, adopted rule, or a final
  624  order of the division; may order the removal of such individual
  625  as an officer or from the board of administration or as an
  626  officer of the association; and may prohibit such individual
  627  from serving as an officer or on the board of a community
  628  association for a period of time. The term “willfully and
  629  knowingly” means that the division informed the officer or board
  630  member that his or her action or intended action violates this
  631  chapter, a rule adopted under this chapter, or a final order of
  632  the division and that the officer or board member refused to
  633  comply with the requirements of this chapter, a rule adopted
  634  under this chapter, or a final order of the division. The
  635  division, before initiating formal agency action under chapter
  636  120, must afford the officer or board member an opportunity to
  637  voluntarily comply, and an officer or board member who complies
  638  within 10 days is not subject to a civil penalty. A penalty may
  639  be imposed on the basis of each day of continuing violation, but
  640  the penalty for any offense may not exceed $5,000. By January 1,
  641  1998, the division shall adopt, by rule, penalty guidelines
  642  applicable to possible violations or to categories of violations
  643  of this chapter or rules adopted by the division. The guidelines
  644  must specify a meaningful range of civil penalties for each such
  645  violation of the statute and rules and must be based upon the
  646  harm caused by the violation, the repetition of the violation,
  647  and upon such other factors deemed relevant by the division. For
  648  example, the division may consider whether the violations were
  649  committed by a developer, bulk assignee, or bulk buyer, or
  650  owner-controlled association, the size of the association, and
  651  other factors. The guidelines must designate the possible
  652  mitigating or aggravating circumstances that justify a departure
  653  from the range of penalties provided by the rules. It is the
  654  legislative intent that minor violations be distinguished from
  655  those which endanger the health, safety, or welfare of the
  656  condominium residents or other persons and that such guidelines
  657  provide reasonable and meaningful notice to the public of likely
  658  penalties that may be imposed for proscribed conduct. This
  659  subsection does not limit the ability of the division to
  660  informally dispose of administrative actions or complaints by
  661  stipulation, agreed settlement, or consent order. All amounts
  662  collected shall be deposited with the Chief Financial Officer to
  663  the credit of the Division of Florida Condominiums, Timeshares,
  664  and Mobile Homes Trust Fund. If a developer, bulk assignee, or
  665  bulk buyer fails to pay the civil penalty and the amount deemed
  666  to be owed to the association, the division shall issue an order
  667  directing that such developer, bulk assignee, or bulk buyer
  668  cease and desist from further operation until such time as the
  669  civil penalty is paid or may pursue enforcement of the penalty
  670  in a court of competent jurisdiction. If an association fails to
  671  pay the civil penalty, the division shall pursue enforcement in
  672  a court of competent jurisdiction, and the order imposing the
  673  civil penalty or the cease and desist order is not effective
  674  until 20 days after the date of such order. Any action commenced
  675  by the division shall be brought in the county in which the
  676  division has its executive offices or in the county where the
  677  violation occurred.
  678         7. If a unit owner presents the division with proof that
  679  the unit owner has requested access to official records in
  680  writing by certified mail, and that after 10 days the unit owner
  681  again made the same request for access to official records in
  682  writing by certified mail, and that more than 10 days has
  683  elapsed since the second request and the association has still
  684  failed or refused to provide access to official records as
  685  required by this chapter, the division shall issue a subpoena
  686  requiring production of the requested records where the records
  687  are kept pursuant to s. 718.112.
  688         8. In addition to subparagraph 6., the division may seek
  689  the imposition of a civil penalty through the circuit court for
  690  any violation for which the division may issue a notice to show
  691  cause under paragraph (r). The civil penalty shall be at least
  692  $500 but no more than $5,000 for each violation. The court may
  693  also award to the prevailing party court costs and reasonable
  694  attorney attorney’s fees and, if the division prevails, may also
  695  award reasonable costs of investigation.
  696         (e) The division may prepare and disseminate a prospectus
  697  and other information to assist prospective owners, purchasers,
  698  lessees, and developers of residential condominiums in assessing
  699  the rights, privileges, and duties pertaining thereto.
  700         (f) The division may adopt rules to administer and enforce
  701  the provisions of this chapter.
  702         (g) The division shall establish procedures for providing
  703  notice to an association and the developer, bulk assignee, or
  704  bulk buyer during the period in which the developer, bulk
  705  assignee, or bulk buyer controls the association if the division
  706  is considering the issuance of a declaratory statement with
  707  respect to the declaration of condominium or any related
  708  document governing such condominium community.
  709         (h) The division shall furnish each association that pays
  710  the fees required by paragraph (2)(a) a copy of this chapter, as
  711  amended, and the rules adopted thereto on an annual basis.
  712         (i) The division shall annually provide each association
  713  with a summary of declaratory statements and formal legal
  714  opinions relating to the operations of condominiums which were
  715  rendered by the division during the previous year.
  716         (j) The division shall provide training and educational
  717  programs for condominium association board members and unit
  718  owners. The training may, in the division’s discretion, include
  719  web-based electronic media, and live training and seminars in
  720  various locations throughout the state. The division may review
  721  and approve education and training programs for board members
  722  and unit owners offered by providers and shall maintain a
  723  current list of approved programs and providers and make such
  724  list available to board members and unit owners in a reasonable
  725  and cost-effective manner.
  726         (k) The division shall maintain a toll-free telephone
  727  number accessible to condominium unit owners.
  728         (l) The division shall develop a program to certify both
  729  volunteer and paid mediators to provide mediation of condominium
  730  disputes. The division shall provide, upon request, a list of
  731  such mediators to any association, unit owner, or other
  732  participant in arbitration proceedings under s. 718.1255
  733  requesting a copy of the list. The division shall include on the
  734  list of volunteer mediators only the names of persons who have
  735  received at least 20 hours of training in mediation techniques
  736  or who have mediated at least 20 disputes. In order to become
  737  initially certified by the division, paid mediators must be
  738  certified by the Supreme Court to mediate court cases in county
  739  or circuit courts. However, the division may adopt, by rule,
  740  additional factors for the certification of paid mediators,
  741  which must be related to experience, education, or background.
  742  Any person initially certified as a paid mediator by the
  743  division must, in order to continue to be certified, comply with
  744  the factors or requirements adopted by rule.
  745         (m) If a complaint is made, the division must conduct its
  746  inquiry with due regard for the interests of the affected
  747  parties. Within 30 days after receipt of a complaint, the
  748  division shall acknowledge the complaint in writing and notify
  749  the complainant whether the complaint is within the jurisdiction
  750  of the division and whether additional information is needed by
  751  the division from the complainant. The division shall conduct
  752  its investigation and, within 90 days after receipt of the
  753  original complaint or of timely requested additional
  754  information, take action upon the complaint. However, the
  755  failure to complete the investigation within 90 days does not
  756  prevent the division from continuing the investigation,
  757  accepting or considering evidence obtained or received after 90
  758  days, or taking administrative action if reasonable cause exists
  759  to believe that a violation of this chapter or a rule has
  760  occurred. If an investigation is not completed within the time
  761  limits established in this paragraph, the division shall, on a
  762  monthly basis, notify the complainant in writing of the status
  763  of the investigation. When reporting its action to the
  764  complainant, the division shall inform the complainant of any
  765  right to a hearing pursuant to ss. 120.569 and 120.57.
  766         (n) Condominium association directors, officers, and
  767  employees; condominium developers; bulk assignees, bulk buyers,
  768  and community association managers; and community association
  769  management firms have an ongoing duty to reasonably cooperate
  770  with the division in any investigation pursuant to this section.
  771  The division shall refer to local law enforcement authorities
  772  any person whom the division believes has altered, destroyed,
  773  concealed, or removed any record, document, or thing required to
  774  be kept or maintained by this chapter with the purpose to impair
  775  its verity or availability in the department’s investigation.
  776         (o) The division may:
  777         1. Contract with agencies in this state or other
  778  jurisdictions to perform investigative functions; or
  779         2. Accept grants-in-aid from any source.
  780         (p) The division shall cooperate with similar agencies in
  781  other jurisdictions to establish uniform filing procedures and
  782  forms, public offering statements, advertising standards, and
  783  rules and common administrative practices.
  784         (q) The division shall consider notice to a developer, bulk
  785  assignee, or bulk buyer to be complete when it is delivered to
  786  the address of the developer, bulk assignee, or bulk buyer
  787  currently on file with the division.
  788         (r) In addition to its enforcement authority, the division
  789  may issue a notice to show cause, which must provide for a
  790  hearing, upon written request, in accordance with chapter 120.
  791         (s) The division shall submit to the Governor, the
  792  President of the Senate, the Speaker of the House of
  793  Representatives, and the chairs of the legislative
  794  appropriations committees an annual report that includes, but
  795  need not be limited to, the number of training programs provided
  796  for condominium association board members and unit owners, the
  797  number of complaints received by type, the number and percent of
  798  complaints acknowledged in writing within 30 days and the number
  799  and percent of investigations acted upon within 90 days in
  800  accordance with paragraph (m), and the number of investigations
  801  exceeding the 90-day requirement. The annual report must also
  802  include an evaluation of the division’s core business processes
  803  and make recommendations for improvements, including statutory
  804  changes. The report shall be submitted by September 30 following
  805  the end of the fiscal year.
  806         Section 4. This act shall take effect October 1, 2020.