Florida Senate - 2020 CS for SB 1752
By the Committee on Innovation, Industry, and Technology; and
Senator Pizzo
580-03744-20 20201752c1
1 A bill to be entitled
2 An act relating to condominium associations; amending
3 s. 194.011, F.S.; providing that certain associations
4 may continue to represent, prosecute, or defend unit
5 owners in certain proceedings; providing
6 applicability; amending s. 194.181, F.S.; revising the
7 parties considered to be the defendant in a tax suit;
8 requiring condominium and cooperative associations to
9 provide unit owners with certain notice and
10 information under certain circumstances; providing
11 requirements for such notice; specifying that a unit
12 owner who does not respond to the notice will be
13 represented in the response or answer filed by the
14 association; amending s. 718.111, F.S.; revising
15 criminal penalties relating to the acceptance of
16 things or services of value or kickbacks; authorizing
17 a condominium association to take certain actions
18 relating to ad valorem taxes assessed on units for
19 commonly used facilities or common elements; providing
20 applicability; revising the documents required to be
21 included with accounting records; requiring an
22 association to maintain official records in a
23 specified manner; revising requirements for the
24 creation of a rebuttable presumption relating to the
25 provision of records; authorizing an association to
26 direct certain persons to the association’s website to
27 fulfill certain obligations relating to the inspection
28 of records; requiring an association to provide a
29 checklist and a sworn affidavit to persons requesting
30 to inspect records; requiring the association to
31 maintain the checklist for a specified period of time;
32 creating a rebuttable presumption for an association
33 that provides such checklist and sworn affidavit;
34 providing criminal penalties for certain violations
35 relating to official association records; defining the
36 term “repeatedly”; requiring certain associations to
37 post copies of certain documents on their websites by
38 a specified date; revising criminal penalties relating
39 to the use of association debit cards; defining the
40 term “lawful obligation of the association”; creating
41 s. 718.129, F.S.; providing criminal penalties for
42 fraudulent voting activities related to association
43 elections; amending s. 718.501, F.S.; revising the
44 jurisdiction of the Division of Florida Condominiums,
45 Timeshares, and Mobile Homes of the Department of
46 Business and Professional Regulation with regard to
47 investigating complaints; defining the term “financial
48 issues”; providing an effective date.
49
50 Be It Enacted by the Legislature of the State of Florida:
51
52 Section 1. Paragraph (e) of subsection (3) of section
53 194.011, Florida Statutes, is amended to read:
54 194.011 Assessment notice; objections to assessments.—
55 (3) A petition to the value adjustment board must be in
56 substantially the form prescribed by the department.
57 Notwithstanding s. 195.022, a county officer may not refuse to
58 accept a form provided by the department for this purpose if the
59 taxpayer chooses to use it. A petition to the value adjustment
60 board must be signed by the taxpayer or be accompanied at the
61 time of filing by the taxpayer’s written authorization or power
62 of attorney, unless the person filing the petition is listed in
63 s. 194.034(1)(a). A person listed in s. 194.034(1)(a) may file a
64 petition with a value adjustment board without the taxpayer’s
65 signature or written authorization by certifying under penalty
66 of perjury that he or she has authorization to file the petition
67 on behalf of the taxpayer. If a taxpayer notifies the value
68 adjustment board that a petition has been filed for the
69 taxpayer’s property without his or her consent, the value
70 adjustment board may require the person filing the petition to
71 provide written authorization from the taxpayer authorizing the
72 person to proceed with the appeal before a hearing is held. If
73 the value adjustment board finds that a person listed in s.
74 194.034(1)(a) willfully and knowingly filed a petition that was
75 not authorized by the taxpayer, the value adjustment board shall
76 require such person to provide the taxpayer’s written
77 authorization for representation to the value adjustment board
78 clerk before any petition filed by that person is heard, for 1
79 year after imposition of such requirement by the value
80 adjustment board. A power of attorney or written authorization
81 is valid for 1 assessment year, and a new power of attorney or
82 written authorization by the taxpayer is required for each
83 subsequent assessment year. A petition shall also describe the
84 property by parcel number and shall be filed as follows:
85 (e)1. A condominium association as described in chapter
86 718, a cooperative association as described in chapter 719, or a
87 any homeowners’ association as defined in s. 723.075, with
88 approval of its board of administration or directors, may file
89 with the value adjustment board a single joint petition on
90 behalf of any association members who own units or parcels of
91 property which the property appraiser determines are
92 substantially similar with respect to location, proximity to
93 amenities, number of rooms, living area, and condition. The
94 condominium association, cooperative association, or homeowners’
95 association as defined in s. 723.075 shall provide the unit or
96 parcel owners with notice of its intent to petition the value
97 adjustment board and shall provide at least 20 days for a unit
98 or parcel owner to elect, in writing, that his or her unit or
99 parcel not be included in the petition.
100 2. A condominium association as described in chapter 718,
101 or a cooperative association as described in chapter 719, which
102 has filed a single joint petition under this subsection may
103 continue to represent, prosecute, or defend the unit owners
104 through any related subsequent proceeding in any tribunal,
105 including judicial review under part II of this chapter and any
106 appeals. This subparagraph is intended to clarify existing law
107 and applies to cases pending on July 1, 2020.
108 Section 2. Subsection (2) of section 194.181, Florida
109 Statutes, is amended to read:
110 194.181 Parties to a tax suit.—
111 (2)(a) In any case brought by a the taxpayer or a
112 condominium or cooperative association, as described in chapters
113 718 and 719, respectively, on behalf of some or all unit owners
114 to contest contesting the assessment of any property, the county
115 property appraiser is the shall be party defendant.
116 (b) Except as provided in paragraph (c), in any case
117 brought by the property appraiser under pursuant to s.
118 194.036(1)(a) or (b), the taxpayer is the shall be party
119 defendant.
120 (c) In any case brought by the property appraiser under s.
121 194.036(1)(a) or (b) concerning a value adjustment board
122 decision on a single joint petition filed by a condominium or
123 cooperative association under s. 194.011(3), the association and
124 all unit owners included in the single joint petition are the
125 party defendants.
126 1. The condominium or cooperative association must provide
127 unit owners with notice of its intent to respond to or answer
128 the property appraiser’s complaint and advise the unit owners
129 that they may elect to:
130 a. Retain their own counsel to defend the appeal;
131 b. Choose not to defend the appeal; or
132 c. Be represented together with other unit owners in the
133 response or answer filed by the association.
134 2. The notice required in subparagraph 1. must be mailed,
135 delivered, or electronically transmitted to unit owners and
136 posted conspicuously on the condominium or cooperative property
137 in the same manner as is required for notice of board meetings
138 under s. 718.112(2) or s. 719.106(1), as applicable. Any unit
139 owner who does not respond to the association’s notice will be
140 represented in the response or answer filed by the association.
141 (d) In any case brought by the property appraiser under
142 pursuant to s. 194.036(1)(c), the value adjustment board is the
143 shall be party defendant.
144 Section 3. Paragraphs (a) and (d) of subsection (1),
145 subsection (3), paragraphs (a), (b), (c), and (g) of subsection
146 (12), and paragraph (b) of subsection (15) of section 718.111,
147 Florida Statutes, are amended to read:
148 718.111 The association.—
149 (1) CORPORATE ENTITY.—
150 (a) The operation of the condominium shall be by the
151 association, which must be a Florida corporation for profit or a
152 Florida corporation not for profit. However, any association
153 which was in existence on January 1, 1977, need not be
154 incorporated. The owners of units shall be shareholders or
155 members of the association. The officers and directors of the
156 association have a fiduciary relationship to the unit owners. It
157 is the intent of the Legislature that nothing in this paragraph
158 shall be construed as providing for or removing a requirement of
159 a fiduciary relationship between any manager employed by the
160 association and the unit owners. An officer, director, or
161 manager may not solicit, offer to accept, or accept any thing or
162 service of value or kickback for which consideration has not
163 been provided for his or her own benefit or that of his or her
164 immediate family, from any person providing or proposing to
165 provide goods or services to the association. Any such officer,
166 director, or manager who knowingly so solicits, offers to
167 accept, or accepts any thing or service of value or kickback
168 commits a felony of the third degree, punishable as provided in
169 s. 775.082, s. 775.083, or s. 775.084, and is subject to a civil
170 penalty pursuant to s. 718.501(1)(d) and, if applicable, a
171 criminal penalty as provided in paragraph (d). However, this
172 paragraph does not prohibit an officer, director, or manager
173 from accepting services or items received in connection with
174 trade fairs or education programs. An association may operate
175 more than one condominium.
176 (d) As required by s. 617.0830, an officer, director, or
177 agent shall discharge his or her duties in good faith, with the
178 care an ordinarily prudent person in a like position would
179 exercise under similar circumstances, and in a manner he or she
180 reasonably believes to be in the interests of the association.
181 An officer, director, or agent shall be liable for monetary
182 damages as provided in s. 617.0834 if such officer, director, or
183 agent breached or failed to perform his or her duties and the
184 breach of, or failure to perform, his or her duties constitutes
185 a violation of criminal law as provided in s. 617.0834;
186 constitutes a transaction from which the officer or director
187 derived an improper personal benefit, either directly or
188 indirectly; or constitutes recklessness or an act or omission
189 that was in bad faith, with malicious purpose, or in a manner
190 exhibiting wanton and willful disregard of human rights, safety,
191 or property. Forgery of a ballot envelope or voting certificate
192 used in a condominium association election is punishable as
193 provided in s. 831.01, the theft or embezzlement of funds of a
194 condominium association is punishable as provided in s. 812.014,
195 and the destruction of or the refusal to allow inspection or
196 copying of an official record of a condominium association that
197 is accessible to unit owners within the time periods required by
198 general law in furtherance of any crime is punishable as
199 tampering with physical evidence as provided in s. 918.13 or as
200 obstruction of justice as provided in chapter 843. An officer or
201 director charged by information or indictment with a crime
202 referenced in this paragraph must be removed from office, and
203 the vacancy shall be filled as provided in s. 718.112(2)(d)2.
204 until the end of the officer’s or director’s period of
205 suspension or the end of his or her term of office, whichever
206 occurs first. If a criminal charge is pending against the
207 officer or director, he or she may not be appointed or elected
208 to a position as an officer or a director of any association and
209 may not have access to the official records of any association,
210 except pursuant to a court order. However, if the charges are
211 resolved without a finding of guilt, the officer or director
212 must be reinstated for the remainder of his or her term of
213 office, if any.
214 (3) POWER TO MANAGE CONDOMINIUM PROPERTY AND TO CONTRACT,
215 SUE, AND BE SUED; CONFLICT OF INTEREST.—
216 (a) The association may contract, sue, or be sued with
217 respect to the exercise or nonexercise of its powers. For these
218 purposes, the powers of the association include, but are not
219 limited to, the maintenance, management, and operation of the
220 condominium property.
221 (b) After control of the association is obtained by unit
222 owners other than the developer, the association may:
223 1. Institute, maintain, settle, or appeal actions or
224 hearings in its name on behalf of all unit owners concerning
225 matters of common interest to most or all unit owners,
226 including, but not limited to, the common elements; the roof and
227 structural components of a building or other improvements;
228 mechanical, electrical, and plumbing elements serving an
229 improvement or a building; representations of the developer
230 pertaining to any existing or proposed commonly used facilities;
231 2. Protest and protesting ad valorem taxes on commonly used
232 facilities and on units; and may
233 3. Defend actions pertaining to ad valorem taxation of
234 commonly used facilities or units or pertaining to in eminent
235 domain; or
236 4. Bring inverse condemnation actions.
237 (c) If the association has the authority to maintain a
238 class action, the association may be joined in an action as
239 representative of that class with reference to litigation and
240 disputes involving the matters for which the association could
241 bring a class action.
242 (d) The association, in its own name or on behalf of some
243 or all unit owners, may institute, file, protest, maintain, or
244 defend any administrative challenge, lawsuit, appeal, or other
245 challenge to ad valorem taxes assessed on units for commonly
246 used facilities or common elements. The affected association
247 members are not necessary or indispensable parties to such
248 actions. This paragraph is intended to clarify existing law and
249 applies to cases pending on July 1, 2020.
250 (e) Nothing herein limits any statutory or common-law right
251 of any individual unit owner or class of unit owners to bring
252 any action without participation by the association which may
253 otherwise be available.
254 (f) An association may not hire an attorney who represents
255 the management company of the association.
256 (12) OFFICIAL RECORDS.—
257 (a) From the inception of the association, the association
258 shall maintain each of the following items, if applicable, which
259 constitutes the official records of the association:
260 1. A copy of the plans, permits, warranties, and other
261 items provided by the developer pursuant to s. 718.301(4).
262 2. A photocopy of the recorded declaration of condominium
263 of each condominium operated by the association and each
264 amendment to each declaration.
265 3. A photocopy of the recorded bylaws of the association
266 and each amendment to the bylaws.
267 4. A certified copy of the articles of incorporation of the
268 association, or other documents creating the association, and
269 each amendment thereto.
270 5. A copy of the current rules of the association.
271 6. A book or books that contain the minutes of all meetings
272 of the association, the board of administration, and the unit
273 owners.
274 7. A current roster of all unit owners and their mailing
275 addresses, unit identifications, voting certifications, and, if
276 known, telephone numbers. The association shall also maintain
277 the e-mail addresses and facsimile numbers of unit owners
278 consenting to receive notice by electronic transmission. The e
279 mail addresses and facsimile numbers are not accessible to unit
280 owners if consent to receive notice by electronic transmission
281 is not provided in accordance with sub-subparagraph (c)5.e.
282 (c)3.e. However, the association is not liable for an
283 inadvertent disclosure of the e-mail address or facsimile number
284 for receiving electronic transmission of notices.
285 8. All current insurance policies of the association and
286 condominiums operated by the association.
287 9. A current copy of any management agreement, lease, or
288 other contract to which the association is a party or under
289 which the association or the unit owners have an obligation or
290 responsibility.
291 10. Bills of sale or transfer for all property owned by the
292 association.
293 11. Accounting records for the association and separate
294 accounting records for each condominium that the association
295 operates. Any person who knowingly or intentionally defaces or
296 destroys such records, or who knowingly or intentionally fails
297 to create or maintain such records, with the intent of causing
298 harm to the association or one or more of its members, is
299 personally subject to a civil penalty pursuant to s.
300 718.501(1)(d). The accounting records must include, but are not
301 limited to:
302 a. Accurate, itemized, and detailed records of all receipts
303 and expenditures.
304 b. A current account and a monthly, bimonthly, or quarterly
305 statement of the account for each unit designating the name of
306 the unit owner, the due date and amount of each assessment, the
307 amount paid on the account, and the balance due.
308 c. All audits, reviews, accounting statements, and
309 financial reports of the association or condominium.
310 d. All contracts for work to be performed. Bids for work to
311 be performed are also considered official records and must be
312 maintained by the association.
313 e. All bank statements, canceled checks, and credit card
314 statements.
315 f. All invoices, transaction receipts, deposit slips, or
316 other underlying documentation that substantiates any receipt or
317 expenditure of funds by the association.
318 12. Ballots, sign-in sheets, voting proxies, and all other
319 papers and electronic records relating to voting by unit owners,
320 which must be maintained for 1 year from the date of the
321 election, vote, or meeting to which the document relates,
322 notwithstanding paragraph (b).
323 13. All rental records if the association is acting as
324 agent for the rental of condominium units.
325 14. A copy of the current question and answer sheet as
326 described in s. 718.504.
327 15. All other written records of the association not
328 specifically included in the foregoing which are related to the
329 operation of the association.
330 16. A copy of the inspection report as described in s.
331 718.301(4)(p).
332 17. Bids for materials, equipment, or services.
333 (b) The official records specified in subparagraphs (a)1.
334 6. must be permanently maintained from the inception of the
335 association. All other official records must be maintained
336 within the state for at least 7 years, unless otherwise provided
337 by general law. All official records must be maintained in a
338 manner and format prescribed by division rule so that the
339 records are easily accessible for inspection. The records of the
340 association shall be made available to a unit owner within 45
341 miles of the condominium property or within the county in which
342 the condominium property is located within 10 working days after
343 receipt of a written request by the board or its designee.
344 However, such distance requirement does not apply to an
345 association governing a timeshare condominium. This paragraph
346 may be complied with by having a copy of the official records of
347 the association available for inspection or copying on the
348 condominium property or association property, or the association
349 may offer the option of making the records available to a unit
350 owner electronically via the Internet or by allowing the records
351 to be viewed in electronic format on a computer screen and
352 printed upon request. The association is not responsible for the
353 use or misuse of the information provided to an association
354 member or his or her authorized representative pursuant to the
355 compliance requirements of this chapter unless the association
356 has an affirmative duty not to disclose such information
357 pursuant to this chapter.
358 (c)1.a. The official records of the association are open to
359 inspection by any association member or the authorized
360 representative of such member at all reasonable times. The right
361 to inspect the records includes the right to make or obtain
362 copies, at the reasonable expense, if any, of the member or
363 authorized representative of such member. A renter of a unit has
364 a right to inspect and copy the association’s bylaws and rules.
365 The association may adopt reasonable rules regarding the
366 frequency, time, location, notice, and manner of record
367 inspections and copying. The failure of an association to
368 provide the records within 10 working days after receipt of a
369 written request that complies with the association’s document
370 inspection rule creates a rebuttable presumption that the
371 association willfully failed to comply with this paragraph. A
372 unit owner who is denied access to official records is entitled
373 to the actual damages or minimum damages for the association’s
374 willful failure to comply. Minimum damages are $50 per calendar
375 day for up to 10 days, beginning on the 11th working day after
376 receipt of the written request that complies with the
377 association’s document inspection rule. The failure to permit
378 inspection entitles any person prevailing in an enforcement
379 action to recover reasonable attorney fees from the person in
380 control of the records who, directly or indirectly, knowingly
381 denied access to the records. If the requested records are
382 posted on an association’s website, the association may fulfill
383 its obligations as provided under this paragraph by directing to
384 the website all persons authorized to request access to official
385 records pursuant to this paragraph.
386 b. In response to a statutorily compliant written request
387 to inspect records, the association must simultaneously provide
388 a checklist to the requestor of all records made available for
389 inspection and copying and a sworn affidavit in which the person
390 facilitating or handling the association’s compliance with the
391 request attests to the veracity of the checklist provided to the
392 requestor. The checklist must also identify any of the
393 association’s official records that were not made available to
394 the requestor. An association must maintain a checklist provided
395 under this sub-subparagraph for 7 years. An association
396 delivering a checklist and affidavit pursuant to this sub
397 subparagraph creates a rebuttable presumption that the
398 association has complied with this paragraph.
399 2. Any director or member of the board or association or a
400 community association manager who knowingly, willfully, and
401 repeatedly violates subparagraph 1. commits a misdemeanor of the
402 second degree, punishable as provided in s. 775.082 or s.
403 775.083. For purposes of this subparagraph, the term
404 “repeatedly” means two or more violations within a 12-month
405 period.
406 3.2. Any person who knowingly or intentionally defaces or
407 destroys accounting records that are required by this chapter to
408 be maintained during the period for which such records are
409 required to be maintained, or who knowingly or intentionally
410 fails to create or maintain accounting records that are required
411 to be created or maintained, with the intent of causing harm to
412 the association or one or more of its members, commits a
413 misdemeanor of the first degree, punishable as provided in s.
414 775.082 or s. 775.083 is personally subject to a civil penalty
415 pursuant to s. 718.501(1)(d).
416 4. Any person who willfully and knowingly refuses to
417 release or otherwise produce association records with the intent
418 to avoid or escape detection, arrest, trial, or punishment for
419 the commission of a crime, or to assist another person with such
420 avoidance or escape, commits a felony of the third degree,
421 punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
422 5.3. The association shall maintain an adequate number of
423 copies of the declaration, articles of incorporation, bylaws,
424 and rules, and all amendments to each of the foregoing, as well
425 as the question and answer sheet as described in s. 718.504 and
426 year-end financial information required under this section, on
427 the condominium property to ensure their availability to unit
428 owners and prospective purchasers, and may charge its actual
429 costs for preparing and furnishing these documents to those
430 requesting the documents. An association shall allow a member or
431 his or her authorized representative to use a portable device,
432 including a smartphone, tablet, portable scanner, or any other
433 technology capable of scanning or taking photographs, to make an
434 electronic copy of the official records in lieu of the
435 association’s providing the member or his or her authorized
436 representative with a copy of such records. The association may
437 not charge a member or his or her authorized representative for
438 the use of a portable device. Notwithstanding this paragraph,
439 the following records are not accessible to unit owners:
440 a. Any record protected by the lawyer-client privilege as
441 described in s. 90.502 and any record protected by the work
442 product privilege, including a record prepared by an association
443 attorney or prepared at the attorney’s express direction, which
444 reflects a mental impression, conclusion, litigation strategy,
445 or legal theory of the attorney or the association, and which
446 was prepared exclusively for civil or criminal litigation or for
447 adversarial administrative proceedings, or which was prepared in
448 anticipation of such litigation or proceedings until the
449 conclusion of the litigation or proceedings.
450 b. Information obtained by an association in connection
451 with the approval of the lease, sale, or other transfer of a
452 unit.
453 c. Personnel records of association or management company
454 employees, including, but not limited to, disciplinary, payroll,
455 health, and insurance records. For purposes of this sub
456 subparagraph, the term “personnel records” does not include
457 written employment agreements with an association employee or
458 management company, or budgetary or financial records that
459 indicate the compensation paid to an association employee.
460 d. Medical records of unit owners.
461 e. Social security numbers, driver license numbers, credit
462 card numbers, e-mail addresses, telephone numbers, facsimile
463 numbers, emergency contact information, addresses of a unit
464 owner other than as provided to fulfill the association’s notice
465 requirements, and other personal identifying information of any
466 person, excluding the person’s name, unit designation, mailing
467 address, property address, and any address, e-mail address, or
468 facsimile number provided to the association to fulfill the
469 association’s notice requirements. Notwithstanding the
470 restrictions in this sub-subparagraph, an association may print
471 and distribute to parcel owners a directory containing the name,
472 parcel address, and all telephone numbers of each parcel owner.
473 However, an owner may exclude his or her telephone numbers from
474 the directory by so requesting in writing to the association. An
475 owner may consent in writing to the disclosure of other contact
476 information described in this sub-subparagraph. The association
477 is not liable for the inadvertent disclosure of information that
478 is protected under this sub-subparagraph if the information is
479 included in an official record of the association and is
480 voluntarily provided by an owner and not requested by the
481 association.
482 f. Electronic security measures that are used by the
483 association to safeguard data, including passwords.
484 g. The software and operating system used by the
485 association which allow the manipulation of data, even if the
486 owner owns a copy of the same software used by the association.
487 The data is part of the official records of the association.
488 (g)1. By January 1, 2022 2019, an association managing a
489 condominium with 25 150 or more units which does not contain
490 timeshare units shall post digital copies of the documents
491 specified in subparagraph 2. on its website.
492 a. The association’s website must be:
493 (I) An independent website or web portal wholly owned and
494 operated by the association; or
495 (II) A website or web portal operated by a third-party
496 provider with whom the association owns, leases, rents, or
497 otherwise obtains the right to operate a web page, subpage, web
498 portal, or collection of subpages or web portals dedicated to
499 the association’s activities and on which required notices,
500 records, and documents may be posted by the association.
501 b. The association’s website must be accessible through the
502 Internet and must contain a subpage, web portal, or other
503 protected electronic location that is inaccessible to the
504 general public and accessible only to unit owners and employees
505 of the association.
506 c. Upon a unit owner’s written request, the association
507 must provide the unit owner with a username and password and
508 access to the protected sections of the association’s website
509 that contain any notices, records, or documents that must be
510 electronically provided.
511 2. A current copy of the following documents must be posted
512 in digital format on the association’s website:
513 a. The recorded declaration of condominium of each
514 condominium operated by the association and each amendment to
515 each declaration.
516 b. The recorded bylaws of the association and each
517 amendment to the bylaws.
518 c. The articles of incorporation of the association, or
519 other documents creating the association, and each amendment
520 thereto. The copy posted pursuant to this sub-subparagraph must
521 be a copy of the articles of incorporation filed with the
522 Department of State.
523 d. The rules of the association.
524 e. A list of all executory contracts or documents to which
525 the association is a party or under which the association or the
526 unit owners have an obligation or responsibility and, after
527 bidding for the related materials, equipment, or services has
528 closed, a list of bids received by the association within the
529 past year. Summaries of bids for materials, equipment, or
530 services which exceed $500 must be maintained on the website for
531 1 year. In lieu of summaries, complete copies of the bids may be
532 posted.
533 f. The annual budget required by s. 718.112(2)(f) and any
534 proposed budget to be considered at the annual meeting.
535 g. The financial report required by subsection (13) and any
536 monthly income or expense statement to be considered at a
537 meeting.
538 h. The certification of each director required by s.
539 718.112(2)(d)4.b.
540 i. All contracts or transactions between the association
541 and any director, officer, corporation, firm, or association
542 that is not an affiliated condominium association or any other
543 entity in which an association director is also a director or
544 officer and financially interested.
545 j. Any contract or document regarding a conflict of
546 interest or possible conflict of interest as provided in ss.
547 468.436(2)(b)6. and 718.3027(3).
548 k. The notice of any unit owner meeting and the agenda for
549 the meeting, as required by s. 718.112(2)(d)3., no later than 14
550 days before the meeting. The notice must be posted in plain view
551 on the front page of the website, or on a separate subpage of
552 the website labeled “Notices” which is conspicuously visible and
553 linked from the front page. The association must also post on
554 its website any document to be considered and voted on by the
555 owners during the meeting or any document listed on the agenda
556 at least 7 days before the meeting at which the document or the
557 information within the document will be considered.
558 l. Notice of any board meeting, the agenda, and any other
559 document required for the meeting as required by s.
560 718.112(2)(c), which must be posted no later than the date
561 required for notice pursuant to s. 718.112(2)(c).
562 3. The association shall ensure that the information and
563 records described in paragraph (c), which are not allowed to be
564 accessible to unit owners, are not posted on the association’s
565 website. If protected information or information restricted from
566 being accessible to unit owners is included in documents that
567 are required to be posted on the association’s website, the
568 association shall ensure the information is redacted before
569 posting the documents online. Notwithstanding the foregoing, the
570 association or its agent is not liable for disclosing
571 information that is protected or restricted pursuant to this
572 paragraph unless such disclosure was made with a knowing or
573 intentional disregard of the protected or restricted nature of
574 such information.
575 4. The failure of the association to post information
576 required under subparagraph 2. is not in and of itself
577 sufficient to invalidate any action or decision of the
578 association’s board or its committees.
579 5. By January 1, 2022, an association managing 25 or more
580 units, not including timeshare units, shall post on its website
581 digital copies of all official records subject to inspection by
582 tenants or unit owners or their authorized representatives.
583 (15) DEBIT CARDS.—
584 (b) A person who uses Use of a debit card issued in the
585 name of the association, or billed directly to the association,
586 for any expense that is not a lawful obligation of the
587 association commits theft under s. 812.014. For the purposes of
588 this paragraph, a “lawful obligation of the association” means
589 an obligation that has been properly preapproved by the board
590 and is reflected in the meeting minutes or the written budget
591 may be prosecuted as credit card fraud pursuant to s. 817.61.
592 Section 4. Section 718.129, Florida Statutes, is created to
593 read:
594 718.129 Fraudulent voting activities related to association
595 elections; penalties.—
596 (1) Each of the following acts is a fraudulent voting
597 activity related to association elections and constitutes a
598 felony of the third degree, punishable as provided in s.
599 775.082, s. 775.083, or s. 775.084:
600 (a) Willfully and falsely swearing or affirming any oath or
601 affirmation, or willfully procuring another person to swear or
602 affirm falsely to an oath or affirmation, in connection with or
603 arising out of voting or elections.
604 (b) Perpetrating or attempting to perpetrate, or aiding in
605 the perpetration of, any fraud in connection with any vote cast,
606 to be cast, or attempted to be cast.
607 (c) Preventing an elector from voting, or preventing an
608 elector from voting as the elector intended, by fraudulently
609 changing or attempting to change a ballot, ballot envelope,
610 vote, or voting certificate of the elector.
611 (d) Using bribery, menace, threat, or any other corruption
612 to attempt, directly or indirectly, to influence, deceive, or
613 deter any elector in voting.
614 (e) Directly or indirectly giving or promising anything of
615 value to another person with the intent to buy the vote of that
616 person or another person or to corruptly influence that person
617 or another person in casting his or her vote. However, this
618 paragraph does not apply to the serving of food to be consumed
619 at an election rally or meeting or to any item of nominal value
620 which is used as an election advertisement, including a campaign
621 message designed to be worn by a person.
622 (f) Directly or indirectly using or threatening to use
623 force, violence, or intimidation or any tactic of coercion or
624 intimidation to induce or compel an individual to vote or
625 refrain from voting in an election or on any particular ballot
626 measure.
627 (2) Each of the following acts constitutes a felony of the
628 third degree, punishable as provided in s. 775.082, s. 775.083,
629 or s. 775.084:
630 (a) Knowingly aiding, abetting, or advising a person in the
631 commission of a fraudulent voting activity related to
632 association elections.
633 (b) Agreeing, conspiring, combining, or confederating with
634 at least one other person to commit a fraudulent voting activity
635 related to association elections.
636 (c) Having knowledge of a fraudulent voting activity
637 related to association elections and giving any aid to the
638 offender with intent that the offender avoid or escape
639 detection, arrest, trial, or punishment. This paragraph does not
640 apply to a licensed attorney giving legal advice to a client.
641 Section 5. Subsection (1) of section 718.501, Florida
642 Statutes, is amended to read:
643 718.501 Authority, responsibility, and duties of Division
644 of Florida Condominiums, Timeshares, and Mobile Homes.—
645 (1) The division may enforce and ensure compliance with the
646 provisions of this chapter and rules relating to the
647 development, construction, sale, lease, ownership, operation,
648 and management of residential condominium units. In performing
649 its duties, the division has complete jurisdiction to
650 investigate complaints and enforce compliance with respect to
651 associations that are still under developer control or the
652 control of a bulk assignee or bulk buyer pursuant to part VII of
653 this chapter and complaints against developers, bulk assignees,
654 or bulk buyers involving improper turnover or failure to
655 turnover, pursuant to s. 718.301. However, after turnover has
656 occurred, the division has jurisdiction to investigate
657 complaints related only to financial issues, elections,
658 maintenance of official records, and unit owner access to
659 association records pursuant to s. 718.111(12). As used in this
660 subsection, the term “financial issue” means an issue related to
661 operating budgets; reserve schedules; financial records under s.
662 718.111(12)(a)11.; notices of meetings and meeting minutes for
663 budget or financial statement related meetings; any assessment
664 for common expenses, fees, or fines; commingling of funds; and
665 any other record necessary to determine the revenues and
666 expenses of the association. The division may adopt rules to
667 further define the term “financial issue.”
668 (a)1. The division may make necessary public or private
669 investigations within or outside this state to determine whether
670 any person has violated this chapter or any rule or order
671 hereunder, to aid in the enforcement of this chapter, or to aid
672 in the adoption of rules or forms.
673 2. The division may submit any official written report,
674 worksheet, or other related paper, or a duly certified copy
675 thereof, compiled, prepared, drafted, or otherwise made by and
676 duly authenticated by a financial examiner or analyst to be
677 admitted as competent evidence in any hearing in which the
678 financial examiner or analyst is available for cross-examination
679 and attests under oath that such documents were prepared as a
680 result of an examination or inspection conducted pursuant to
681 this chapter.
682 (b) The division may require or permit any person to file a
683 statement in writing, under oath or otherwise, as the division
684 determines, as to the facts and circumstances concerning a
685 matter to be investigated.
686 (c) For the purpose of any investigation under this
687 chapter, the division director or any officer or employee
688 designated by the division director may administer oaths or
689 affirmations, subpoena witnesses and compel their attendance,
690 take evidence, and require the production of any matter which is
691 relevant to the investigation, including the existence,
692 description, nature, custody, condition, and location of any
693 books, documents, or other tangible things and the identity and
694 location of persons having knowledge of relevant facts or any
695 other matter reasonably calculated to lead to the discovery of
696 material evidence. Upon the failure by a person to obey a
697 subpoena or to answer questions propounded by the investigating
698 officer and upon reasonable notice to all affected persons, the
699 division may apply to the circuit court for an order compelling
700 compliance.
701 (d) Notwithstanding any remedies available to unit owners
702 and associations, if the division has reasonable cause to
703 believe that a violation of any provision of this chapter or
704 related rule has occurred, the division may institute
705 enforcement proceedings in its own name against any developer,
706 bulk assignee, bulk buyer, association, officer, or member of
707 the board of administration, or its assignees or agents, as
708 follows:
709 1. The division may permit a person whose conduct or
710 actions may be under investigation to waive formal proceedings
711 and enter into a consent proceeding whereby orders, rules, or
712 letters of censure or warning, whether formal or informal, may
713 be entered against the person.
714 2. The division may issue an order requiring the developer,
715 bulk assignee, bulk buyer, association, developer-designated
716 officer, or developer-designated member of the board of
717 administration, developer-designated assignees or agents, bulk
718 assignee-designated assignees or agents, bulk buyer-designated
719 assignees or agents, community association manager, or community
720 association management firm to cease and desist from the
721 unlawful practice and take such affirmative action as in the
722 judgment of the division carry out the purposes of this chapter.
723 If the division finds that a developer, bulk assignee, bulk
724 buyer, association, officer, or member of the board of
725 administration, or its assignees or agents, is violating or is
726 about to violate any provision of this chapter, any rule adopted
727 or order issued by the division, or any written agreement
728 entered into with the division, and presents an immediate danger
729 to the public requiring an immediate final order, it may issue
730 an emergency cease and desist order reciting with particularity
731 the facts underlying such findings. The emergency cease and
732 desist order is effective for 90 days. If the division begins
733 nonemergency cease and desist proceedings, the emergency cease
734 and desist order remains effective until the conclusion of the
735 proceedings under ss. 120.569 and 120.57.
736 3. If a developer, bulk assignee, or bulk buyer, fails to
737 pay any restitution determined by the division to be owed, plus
738 any accrued interest at the highest rate permitted by law,
739 within 30 days after expiration of any appellate time period of
740 a final order requiring payment of restitution or the conclusion
741 of any appeal thereof, whichever is later, the division must
742 bring an action in circuit or county court on behalf of any
743 association, class of unit owners, lessees, or purchasers for
744 restitution, declaratory relief, injunctive relief, or any other
745 available remedy. The division may also temporarily revoke its
746 acceptance of the filing for the developer to which the
747 restitution relates until payment of restitution is made.
748 4. The division may petition the court for appointment of a
749 receiver or conservator. If appointed, the receiver or
750 conservator may take action to implement the court order to
751 ensure the performance of the order and to remedy any breach
752 thereof. In addition to all other means provided by law for the
753 enforcement of an injunction or temporary restraining order, the
754 circuit court may impound or sequester the property of a party
755 defendant, including books, papers, documents, and related
756 records, and allow the examination and use of the property by
757 the division and a court-appointed receiver or conservator.
758 5. The division may apply to the circuit court for an order
759 of restitution whereby the defendant in an action brought
760 pursuant to subparagraph 4. is ordered to make restitution of
761 those sums shown by the division to have been obtained by the
762 defendant in violation of this chapter. At the option of the
763 court, such restitution is payable to the conservator or
764 receiver appointed pursuant to subparagraph 4. or directly to
765 the persons whose funds or assets were obtained in violation of
766 this chapter.
767 6. The division may impose a civil penalty against a
768 developer, bulk assignee, or bulk buyer, or association, or its
769 assignee or agent, for any violation of this chapter or related
770 rule. The division may impose a civil penalty individually
771 against an officer or board member who willfully and knowingly
772 violates a provision of this chapter, adopted rule, or a final
773 order of the division; may order the removal of such individual
774 as an officer or from the board of administration or as an
775 officer of the association; and may prohibit such individual
776 from serving as an officer or on the board of a community
777 association for a period of time. The term “willfully and
778 knowingly” means that the division informed the officer or board
779 member that his or her action or intended action violates this
780 chapter, a rule adopted under this chapter, or a final order of
781 the division and that the officer or board member refused to
782 comply with the requirements of this chapter, a rule adopted
783 under this chapter, or a final order of the division. The
784 division, before initiating formal agency action under chapter
785 120, must afford the officer or board member an opportunity to
786 voluntarily comply, and an officer or board member who complies
787 within 10 days is not subject to a civil penalty. A penalty may
788 be imposed on the basis of each day of continuing violation, but
789 the penalty for any offense may not exceed $5,000. By January 1,
790 1998, the division shall adopt, by rule, penalty guidelines
791 applicable to possible violations or to categories of violations
792 of this chapter or rules adopted by the division. The guidelines
793 must specify a meaningful range of civil penalties for each such
794 violation of the statute and rules and must be based upon the
795 harm caused by the violation, the repetition of the violation,
796 and upon such other factors deemed relevant by the division. For
797 example, the division may consider whether the violations were
798 committed by a developer, bulk assignee, or bulk buyer, or
799 owner-controlled association, the size of the association, and
800 other factors. The guidelines must designate the possible
801 mitigating or aggravating circumstances that justify a departure
802 from the range of penalties provided by the rules. It is the
803 legislative intent that minor violations be distinguished from
804 those which endanger the health, safety, or welfare of the
805 condominium residents or other persons and that such guidelines
806 provide reasonable and meaningful notice to the public of likely
807 penalties that may be imposed for proscribed conduct. This
808 subsection does not limit the ability of the division to
809 informally dispose of administrative actions or complaints by
810 stipulation, agreed settlement, or consent order. All amounts
811 collected shall be deposited with the Chief Financial Officer to
812 the credit of the Division of Florida Condominiums, Timeshares,
813 and Mobile Homes Trust Fund. If a developer, bulk assignee, or
814 bulk buyer fails to pay the civil penalty and the amount deemed
815 to be owed to the association, the division shall issue an order
816 directing that such developer, bulk assignee, or bulk buyer
817 cease and desist from further operation until such time as the
818 civil penalty is paid or may pursue enforcement of the penalty
819 in a court of competent jurisdiction. If an association fails to
820 pay the civil penalty, the division shall pursue enforcement in
821 a court of competent jurisdiction, and the order imposing the
822 civil penalty or the cease and desist order is not effective
823 until 20 days after the date of such order. Any action commenced
824 by the division shall be brought in the county in which the
825 division has its executive offices or in the county where the
826 violation occurred.
827 7. If a unit owner presents the division with proof that
828 the unit owner has requested access to official records in
829 writing by certified mail, and that after 10 days the unit owner
830 again made the same request for access to official records in
831 writing by certified mail, and that more than 10 days has
832 elapsed since the second request and the association has still
833 failed or refused to provide access to official records as
834 required by this chapter, the division shall issue a subpoena
835 requiring production of the requested records where the records
836 are kept pursuant to s. 718.112.
837 8. In addition to subparagraph 6., the division may seek
838 the imposition of a civil penalty through the circuit court for
839 any violation for which the division may issue a notice to show
840 cause under paragraph (r). The civil penalty shall be at least
841 $500 but no more than $5,000 for each violation. The court may
842 also award to the prevailing party court costs and reasonable
843 attorney attorney’s fees and, if the division prevails, may also
844 award reasonable costs of investigation.
845 (e) The division may prepare and disseminate a prospectus
846 and other information to assist prospective owners, purchasers,
847 lessees, and developers of residential condominiums in assessing
848 the rights, privileges, and duties pertaining thereto.
849 (f) The division may adopt rules to administer and enforce
850 the provisions of this chapter.
851 (g) The division shall establish procedures for providing
852 notice to an association and the developer, bulk assignee, or
853 bulk buyer during the period in which the developer, bulk
854 assignee, or bulk buyer controls the association if the division
855 is considering the issuance of a declaratory statement with
856 respect to the declaration of condominium or any related
857 document governing such condominium community.
858 (h) The division shall furnish each association that pays
859 the fees required by paragraph (2)(a) a copy of this chapter, as
860 amended, and the rules adopted thereto on an annual basis.
861 (i) The division shall annually provide each association
862 with a summary of declaratory statements and formal legal
863 opinions relating to the operations of condominiums which were
864 rendered by the division during the previous year.
865 (j) The division shall provide training and educational
866 programs for condominium association board members and unit
867 owners. The training may, in the division’s discretion, include
868 web-based electronic media, and live training and seminars in
869 various locations throughout the state. The division may review
870 and approve education and training programs for board members
871 and unit owners offered by providers and shall maintain a
872 current list of approved programs and providers and make such
873 list available to board members and unit owners in a reasonable
874 and cost-effective manner.
875 (k) The division shall maintain a toll-free telephone
876 number accessible to condominium unit owners.
877 (l) The division shall develop a program to certify both
878 volunteer and paid mediators to provide mediation of condominium
879 disputes. The division shall provide, upon request, a list of
880 such mediators to any association, unit owner, or other
881 participant in arbitration proceedings under s. 718.1255
882 requesting a copy of the list. The division shall include on the
883 list of volunteer mediators only the names of persons who have
884 received at least 20 hours of training in mediation techniques
885 or who have mediated at least 20 disputes. In order to become
886 initially certified by the division, paid mediators must be
887 certified by the Supreme Court to mediate court cases in county
888 or circuit courts. However, the division may adopt, by rule,
889 additional factors for the certification of paid mediators,
890 which must be related to experience, education, or background.
891 Any person initially certified as a paid mediator by the
892 division must, in order to continue to be certified, comply with
893 the factors or requirements adopted by rule.
894 (m) If a complaint is made, the division must conduct its
895 inquiry with due regard for the interests of the affected
896 parties. Within 30 days after receipt of a complaint, the
897 division shall acknowledge the complaint in writing and notify
898 the complainant whether the complaint is within the jurisdiction
899 of the division and whether additional information is needed by
900 the division from the complainant. The division shall conduct
901 its investigation and, within 90 days after receipt of the
902 original complaint or of timely requested additional
903 information, take action upon the complaint. However, the
904 failure to complete the investigation within 90 days does not
905 prevent the division from continuing the investigation,
906 accepting or considering evidence obtained or received after 90
907 days, or taking administrative action if reasonable cause exists
908 to believe that a violation of this chapter or a rule has
909 occurred. If an investigation is not completed within the time
910 limits established in this paragraph, the division shall, on a
911 monthly basis, notify the complainant in writing of the status
912 of the investigation. When reporting its action to the
913 complainant, the division shall inform the complainant of any
914 right to a hearing pursuant to ss. 120.569 and 120.57.
915 (n) Condominium association directors, officers, and
916 employees; condominium developers; bulk assignees, bulk buyers,
917 and community association managers; and community association
918 management firms have an ongoing duty to reasonably cooperate
919 with the division in any investigation pursuant to this section.
920 The division shall refer to local law enforcement authorities
921 any person whom the division believes has altered, destroyed,
922 concealed, or removed any record, document, or thing required to
923 be kept or maintained by this chapter with the purpose to impair
924 its verity or availability in the department’s investigation.
925 (o) The division may:
926 1. Contract with agencies in this state or other
927 jurisdictions to perform investigative functions; or
928 2. Accept grants-in-aid from any source.
929 (p) The division shall cooperate with similar agencies in
930 other jurisdictions to establish uniform filing procedures and
931 forms, public offering statements, advertising standards, and
932 rules and common administrative practices.
933 (q) The division shall consider notice to a developer, bulk
934 assignee, or bulk buyer to be complete when it is delivered to
935 the address of the developer, bulk assignee, or bulk buyer
936 currently on file with the division.
937 (r) In addition to its enforcement authority, the division
938 may issue a notice to show cause, which must provide for a
939 hearing, upon written request, in accordance with chapter 120.
940 (s) The division shall submit to the Governor, the
941 President of the Senate, the Speaker of the House of
942 Representatives, and the chairs of the legislative
943 appropriations committees an annual report that includes, but
944 need not be limited to, the number of training programs provided
945 for condominium association board members and unit owners, the
946 number of complaints received by type, the number and percent of
947 complaints acknowledged in writing within 30 days and the number
948 and percent of investigations acted upon within 90 days in
949 accordance with paragraph (m), and the number of investigations
950 exceeding the 90-day requirement. The annual report must also
951 include an evaluation of the division’s core business processes
952 and make recommendations for improvements, including statutory
953 changes. The report shall be submitted by September 30 following
954 the end of the fiscal year.
955 Section 6. This act shall take effect October 1, 2020.