Florida Senate - 2022                        COMMITTEE AMENDMENT
       Bill No. SB 394
       
       
       
       
       
       
                                Ì419550#Î419550                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                   Comm: WD            .                                
                  02/01/2022           .                                
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       The Committee on Regulated Industries (Hutson) recommended the
       following:
       
    1         Senate Amendment 
    2  
    3         Delete lines 200 - 503
    4  and insert:
    5  elected or appointed director shall:
    6         (I) Certify by affidavit in writing to the secretary of the
    7  association that he or she has read the association’s
    8  declaration of condominium, articles of incorporation, bylaws,
    9  and current written policies; that he or she will work to uphold
   10  such documents and policies to the best of his or her ability;
   11  and that he or she will faithfully discharge his or her
   12  fiduciary responsibility to the association’s members; and. In
   13  lieu of this written certification, within 90 days after being
   14  elected or appointed to the board, the newly elected or
   15  appointed director may
   16         (II) Submit a certificate of having satisfactorily
   17  completed the educational curriculum administered by a division
   18  approved condominium education provider within 1 year before or
   19  90 days after the date of election or appointment. The affidavit
   20  and written certification or educational certificate is valid
   21  and does not have to be resubmitted as long as the director
   22  serves on the board without interruption.
   23  
   24  However, a director who is newly appointed by a developer must
   25  submit only the affidavit required in sub-sub-subparagraph (I).
   26  A director of an association of a residential condominium who
   27  fails to timely file the affidavit and written certification or
   28  educational certificate, if applicable, is suspended from
   29  service on the board until he or she complies with this sub
   30  subparagraph. The board may temporarily fill the vacancy during
   31  the period of suspension. The secretary shall require cause the
   32  association to retain a director’s affidavit and written
   33  certification or educational certificate for inspection by the
   34  members for 5 years after a director’s election or the duration
   35  of the director’s uninterrupted tenure, whichever is longer.
   36  Failure to have such affidavit and written certification or
   37  educational certificate on file does not affect the validity of
   38  any board action.
   39         c. Any challenge to the election process must be commenced
   40  within 60 days after the election results are announced.
   41         5. Any approval by unit owners called for by this chapter
   42  or the applicable declaration or bylaws, including, but not
   43  limited to, the approval requirement in s. 718.111(8), must be
   44  made at a duly noticed meeting of unit owners and is subject to
   45  all requirements of this chapter or the applicable condominium
   46  documents relating to unit owner decisionmaking, except that
   47  unit owners may take action by written agreement, without
   48  meetings, on matters for which action by written agreement
   49  without meetings is expressly allowed by the applicable bylaws
   50  or declaration or any law that provides for such action.
   51         6. Unit owners may waive notice of specific meetings if
   52  allowed by the applicable bylaws or declaration or any law.
   53  Notice of meetings of the board of administration, unit owner
   54  meetings, except unit owner meetings called to recall board
   55  members under paragraph (j), and committee meetings may be given
   56  by electronic transmission to unit owners who consent to receive
   57  notice by electronic transmission. A unit owner who consents to
   58  receiving notices by electronic transmission is solely
   59  responsible for removing or bypassing filters that block receipt
   60  of mass e-mails sent to members on behalf of the association in
   61  the course of giving electronic notices.
   62         7. Unit owners have the right to participate in meetings of
   63  unit owners with reference to all designated agenda items.
   64  However, the association may adopt reasonable rules governing
   65  the frequency, duration, and manner of unit owner participation.
   66         8. A unit owner may tape record or videotape a meeting of
   67  the unit owners subject to reasonable rules adopted by the
   68  division.
   69         9. Unless otherwise provided in the bylaws, any vacancy
   70  occurring on the board before the expiration of a term may be
   71  filled by the affirmative vote of the majority of the remaining
   72  directors, even if the remaining directors constitute less than
   73  a quorum, or by the sole remaining director. In the alternative,
   74  a board may hold an election to fill the vacancy, in which case
   75  the election procedures must conform to sub-subparagraph 4.a.
   76  unless the association governs 10 units or fewer and has opted
   77  out of the statutory election process, in which case the bylaws
   78  of the association control. Unless otherwise provided in the
   79  bylaws, a board member appointed or elected under this section
   80  shall fill the vacancy for the unexpired term of the seat being
   81  filled. Filling vacancies created by recall is governed by
   82  paragraph (j) and rules adopted by the division.
   83         10. This chapter does not limit the use of general or
   84  limited proxies, require the use of general or limited proxies,
   85  or require the use of a written ballot or voting machine for any
   86  agenda item or election at any meeting of a timeshare
   87  condominium association or nonresidential condominium
   88  association.
   89  
   90  Notwithstanding subparagraph (b)2. and sub-subparagraph 4.a., an
   91  association of 10 or fewer units may, by affirmative vote of a
   92  majority of the total voting interests, provide for different
   93  voting and election procedures in its bylaws, which may be by a
   94  proxy specifically delineating the different voting and election
   95  procedures. The different voting and election procedures may
   96  provide for elections to be conducted by limited or general
   97  proxy.
   98         Section 2. Paragraph (d) of subsection (1) of section
   99  719.106, Florida Statutes, is amended to read:
  100         719.106 Bylaws; cooperative ownership.—
  101         (1) MANDATORY PROVISIONS.—The bylaws or other cooperative
  102  documents shall provide for the following, and if they do not,
  103  they shall be deemed to include the following:
  104         (d) Shareholder meetings.—There shall be an annual meeting
  105  of the shareholders. All members of the board of administration
  106  shall be elected at the annual meeting unless the bylaws provide
  107  for staggered election terms or for their election at another
  108  meeting. Any unit owner desiring to be a candidate for board
  109  membership must comply with subparagraph 1. The bylaws must
  110  provide the method for calling meetings, including annual
  111  meetings. Written notice, which must incorporate an
  112  identification of agenda items, shall be given to each unit
  113  owner at least 14 days before the annual meeting and posted in a
  114  conspicuous place on the cooperative property at least 14
  115  continuous days preceding the annual meeting. Upon notice to the
  116  unit owners, the board must by duly adopted rule designate a
  117  specific location on the cooperative property upon which all
  118  notice of unit owner meetings are posted. In lieu of or in
  119  addition to the physical posting of the meeting notice, the
  120  association may, by reasonable rule, adopt a procedure for
  121  conspicuously posting and repeatedly broadcasting the notice and
  122  the agenda on a closed-circuit cable television system serving
  123  the cooperative association. However, if broadcast notice is
  124  used in lieu of a posted notice, the notice and agenda must be
  125  broadcast at least four times every broadcast hour of each day
  126  that a posted notice is otherwise required under this section.
  127  If broadcast notice is provided, the notice and agenda must be
  128  broadcast in a manner and for a sufficient continuous length of
  129  time to allow an average reader to observe the notice and read
  130  and comprehend the entire content of the notice and the agenda.
  131  In addition to any of the authorized means of providing notice
  132  of a meeting of the shareholders, the association may, by rule,
  133  adopt a procedure for conspicuously posting the meeting notice
  134  and the agenda on a website serving the cooperative association
  135  for at least the minimum period of time for which a notice of a
  136  meeting is also required to be physically posted on the
  137  cooperative property. Any rule adopted shall, in addition to
  138  other matters, include a requirement that the association send
  139  an electronic notice in the same manner as a notice for a
  140  meeting of the members, which must include a hyperlink to the
  141  website where the notice is posted, to unit owners whose e-mail
  142  addresses are included in the association’s official records.
  143  Unless a unit owner waives in writing the right to receive
  144  notice of the annual meeting, the notice of the annual meeting
  145  must be sent by mail, hand delivered, or electronically
  146  transmitted to each unit owner. An officer of the association
  147  must provide an affidavit or United States Postal Service
  148  certificate of mailing, to be included in the official records
  149  of the association, affirming that notices of the association
  150  meeting were mailed, hand delivered, or electronically
  151  transmitted, in accordance with this provision, to each unit
  152  owner at the address last furnished to the association.
  153         1. The board of administration shall be elected by written
  154  ballot or voting machine. A proxy may not be used in electing
  155  the board of administration in general elections or elections to
  156  fill vacancies caused by recall, resignation, or otherwise
  157  unless otherwise provided in this chapter.
  158         a. At least 60 days before a scheduled election, the
  159  association shall mail, deliver, or transmit, whether by
  160  separate association mailing, delivery, or electronic
  161  transmission or included in another association mailing,
  162  delivery, or electronic transmission, including regularly
  163  published newsletters, to each unit owner entitled to vote, a
  164  first notice of the date of the election. Any unit owner or
  165  other eligible person desiring to be a candidate for the board
  166  of administration must give written notice to the association at
  167  least 40 days before a scheduled election. Together with the
  168  written notice and agenda as set forth in this section, the
  169  association shall mail, deliver, or electronically transmit a
  170  second notice of election to all unit owners entitled to vote,
  171  together with a ballot that lists all candidates. Upon request
  172  of a candidate, the association shall include an information
  173  sheet, no larger than 8 1/2 inches by 11 inches, which must be
  174  furnished by the candidate at least 35 days before the election,
  175  to be included with the mailing, delivery, or electronic
  176  transmission of the ballot, with the costs of mailing, delivery,
  177  or transmission and copying to be borne by the association. The
  178  association is not liable for the contents of the information
  179  sheets provided by the candidates. In order to reduce costs, the
  180  association may print or duplicate the information sheets on
  181  both sides of the paper. The division shall by rule establish
  182  voting procedures consistent with this subparagraph, including
  183  rules establishing procedures for giving notice by electronic
  184  transmission and rules providing for the secrecy of ballots.
  185  Elections shall be decided by a plurality of those ballots cast.
  186  There is no quorum requirement. However, at least 20 percent of
  187  the eligible voters must cast a ballot in order to have a valid
  188  election. A unit owner may not permit any other person to vote
  189  his or her ballot, and any such ballots improperly cast are
  190  invalid. A unit owner who needs assistance in casting the ballot
  191  for the reasons stated in s. 101.051 may obtain assistance in
  192  casting the ballot. Any unit owner violating this provision may
  193  be fined by the association in accordance with s. 719.303. The
  194  regular election must occur on the date of the annual meeting.
  195  This subparagraph does not apply to timeshare cooperatives.
  196  Notwithstanding this subparagraph, an election and balloting are
  197  not required unless more candidates file a notice of intent to
  198  run or are nominated than vacancies exist on the board. Any
  199  challenge to the election process must be commenced within 60
  200  days after the election results are announced.
  201         b. Within 90 days after being elected or appointed to the
  202  board, each new director shall:
  203         (I) Certify by affidavit in writing to the secretary of the
  204  association that he or she has read the association’s bylaws,
  205  articles of incorporation, proprietary lease, and current
  206  written policies; that he or she will work to uphold such
  207  documents and policies to the best of his or her ability; and
  208  that he or she will faithfully discharge his or her fiduciary
  209  responsibility to the association’s members; and. Within 90 days
  210  after being elected or appointed to the board, in lieu of this
  211  written certification, the newly elected or appointed director
  212  may
  213         (II) Submit a certificate of having satisfactorily
  214  completed the educational curriculum administered by an
  215  education provider as approved by the division pursuant to the
  216  requirements established in chapter 718 within 1 year before or
  217  90 days after the date of election or appointment. The
  218  educational certificate is valid and does not have to be
  219  resubmitted as long as the director serves on the board without
  220  interruption.
  221  
  222  However, a director who is newly appointed by a developer must
  223  only submit the affidavit required in sub-sub-subparagraph (I).
  224  A director who fails to timely file the affidavit and written
  225  certification or educational certificate, if applicable, is
  226  suspended from service on the board until he or she complies
  227  with this sub-subparagraph. The board may temporarily fill the
  228  vacancy during the period of suspension. The secretary of the
  229  association shall require cause the association to retain a
  230  director’s affidavit and written certification or educational
  231  certificate for inspection by the members for 5 years after a
  232  director’s election or the duration of the director’s
  233  uninterrupted tenure, whichever is longer. Failure to have such
  234  affidavit and written certification or educational certificate
  235  on file does not affect the validity of any board action.
  236         2. Any approval by unit owners called for by this chapter,
  237  or the applicable cooperative documents, must be made at a duly
  238  noticed meeting of unit owners and is subject to this chapter or
  239  the applicable cooperative documents relating to unit owner
  240  decisionmaking, except that unit owners may take action by
  241  written agreement, without meetings, on matters for which action
  242  by written agreement without meetings is expressly allowed by
  243  the applicable cooperative documents or law which provides for
  244  the unit owner action.
  245         3. Unit owners may waive notice of specific meetings if
  246  allowed by the applicable cooperative documents or law. Notice
  247  of meetings of the board of administration, shareholder
  248  meetings, except shareholder meetings called to recall board
  249  members under paragraph (f), and committee meetings may be given
  250  by electronic transmission to unit owners who consent to receive
  251  notice by electronic transmission. A unit owner who consents to
  252  receiving notices by electronic transmission is solely
  253  responsible for removing or bypassing filters that may block
  254  receipt of mass emails sent to members on behalf of the
  255  association in the course of giving electronic notices.
  256         4. Unit owners have the right to participate in meetings of
  257  unit owners with reference to all designated agenda items.
  258  However, the association may adopt reasonable rules governing
  259  the frequency, duration, and manner of unit owner participation.
  260         5. Any unit owner may tape record or videotape meetings of
  261  the unit owners subject to reasonable rules adopted by the
  262  division.
  263         6. Unless otherwise provided in the bylaws, a vacancy
  264  occurring on the board before the expiration of a term may be
  265  filled by the affirmative vote of the majority of the remaining
  266  directors, even if the remaining directors constitute less than
  267  a quorum, or by the sole remaining director. In the alternative,
  268  a board may hold an election to fill the vacancy, in which case
  269  the election procedures must conform to the requirements of
  270  subparagraph 1. unless the association has opted out of the
  271  statutory election process, in which case the bylaws of the
  272  association control. Unless otherwise provided in the bylaws, a
  273  board member appointed or elected under this subparagraph shall
  274  fill the vacancy for the unexpired term of the seat being
  275  filled. Filling vacancies created by recall is governed by
  276  paragraph (f) and rules adopted by the division.
  277  
  278  Notwithstanding subparagraphs (b)2. and (d)1., an association
  279  may, by the affirmative vote of a majority of the total voting
  280  interests, provide for a different voting and election procedure
  281  in its bylaws, which vote may be by a proxy specifically
  282  delineating the different voting and election procedures. The
  283  different voting and election procedures may provide for
  284  elections to be conducted by limited or general proxy.
  285         Section 3. Subsection (1) of section 720.3033, Florida
  286  Statutes, is amended to read:
  287         720.3033 Officers and directors.—
  288         (1)(a) Within 90 days after being elected or appointed to
  289  the board of a homeowners’ association with at least 10 parcels,
  290  each director shall:
  291         1. Certify by affidavit in writing to the secretary of the
  292  association that he or she has read the association’s
  293  declaration of covenants, articles of incorporation, bylaws, and
  294  current written rules and policies; that he or she will work to
  295  uphold such documents and policies to the best of his or her
  296  ability; and that he or she will faithfully discharge his or her
  297  fiduciary responsibility to the association’s members; and.
  298  Within 90 days after being elected or appointed to the board, in
  299  lieu of such written certification, the newly elected or
  300  appointed director may
  301         2. Submit a certificate of having satisfactorily completed
  302  the educational curriculum administered by a division-approved
  303  education provider within 1 year before or 90 days after the
  304  date of election or appointment.
  305         (b) A director who is newly appointed by a developer must
  306  only submit the affidavit required in subparagraph (a)1.
  307         (c) The affidavit and written certification or educational
  308  certificate are is valid for the uninterrupted tenure of the
  309  director on the board. A director who does not timely file the
  310  affidavit and written certification or educational certificate,
  311  if applicable, is shall be suspended from the board until he or
  312  she complies with the requirement. The board may temporarily
  313  fill the vacancy during the period of suspension.
  314         (d)(c) The association shall retain each director’s
  315  affidavit