Florida Senate - 2023                                    SB 1136
       
       
        
       By Senator Rodriguez
       
       
       
       
       
       40-00278B-23                                          20231136__
    1                        A bill to be entitled                      
    2         An act relating to the Condominium Fraud Investigation
    3         Pilot Program; creating s. 16.81, F.S.; creating the
    4         Condominium Fraud Investigation Pilot Program within
    5         the Department of Legal Affairs in the Office of the
    6         Attorney General; providing a purpose for the program;
    7         authorizing the department to contract with a private
    8         entity to achieve the purpose of the program;
    9         requiring the department to hire specified personnel;
   10         authorizing a person to submit a complaint to the
   11         Office of the Condominium Ombudsman; requiring the
   12         ombudsman to review complaints and take specified
   13         actions; providing powers of and requirements for the
   14         department relating to the pilot program; requiring
   15         that the pilot program be funded from the Division of
   16         Florida Condominiums, Timeshares, and Mobile Homes
   17         Trust Fund; providing for future repeal of the program
   18         unless reviewed and saved from repeal by the
   19         Legislature; amending s. 718.501, F.S.; requiring the
   20         Division of Florida Condominiums, Timeshares, and
   21         Mobile Homes to forward complaints received alleging
   22         fraud or corruption to the Office of the Condominium
   23         Ombudsman; amending s. 718.5012, F.S.; revising the
   24         powers of the ombudsman; providing an effective date.
   25  
   26  Be It Enacted by the Legislature of the State of Florida:
   27  
   28         Section 1. Section 16.81, Florida Statutes, is created to
   29  read:
   30         16.81 The Condominium Fraud Investigation Pilot Program.—
   31         (1)The Condominium Fraud Investigation Pilot Program is
   32  created within the Department of Legal Affairs in the Office of
   33  the Attorney General. The purpose of the program is to
   34  investigate condominium-related fraud and corruption in Broward,
   35  Miami-Dade, and Monroe Counties. The department may contract
   36  with a private entity that employs retired law enforcement
   37  officers who have subject matter expertise in financial fraud to
   38  achieve the purpose of the program. The department shall hire
   39  five law enforcement officers certified under chapter 943 to
   40  carry out the purpose of the program. If the department does not
   41  contract with a private entity, the department must hire three
   42  financial investigators, five investigators with previous law
   43  enforcement experience, and three clerical employees to staff
   44  the program.
   45         (2)A person may submit a complaint to the Office of the
   46  Condominium Ombudsman. The ombudsman shall review all complaints
   47  submitted to the office and determine which complaints to
   48  forward to the department for additional analysis and
   49  investigation under the program. If a complaint submitted to the
   50  office does not contain allegations of fraud or corruption, the
   51  ombudsman must forward the complaint to the Division of Florida
   52  Condominiums, Timeshares, and Mobile Homes.
   53         (3)The department has the power to subpoena, audit, and
   54  investigate for the purposes of the program. The department may
   55  administer oaths, subpoena witnesses, and compel the production
   56  of books, papers, or other records relevant to investigations it
   57  conducts. If, after reviewing a complaint under the program, the
   58  department finds sufficient evidence for criminal prosecution,
   59  it must refer the case to the appropriate state attorney for
   60  prosecution.
   61         (4)The program must be funded annually from the Division
   62  of Florida Condominiums, Timeshares, and Mobile Homes Trust Fund
   63  with funds specifically appropriated in the General
   64  Appropriations Act.
   65         (5)This section is repealed October 2, 2028, unless
   66  reviewed and saved from repeal through reenactment by the
   67  Legislature.
   68         Section 2. Subsection (1) of section 718.501, Florida
   69  Statutes, is amended to read:
   70         718.501 Authority, responsibility, and duties of Division
   71  of Florida Condominiums, Timeshares, and Mobile Homes.—
   72         (1) The division may enforce and ensure compliance with
   73  this chapter and rules relating to the development,
   74  construction, sale, lease, ownership, operation, and management
   75  of residential condominium units and complaints related to the
   76  procedural completion of milestone inspections under s. 553.899.
   77  In performing its duties, the division has complete jurisdiction
   78  to investigate complaints and enforce compliance with respect to
   79  associations that are still under developer control or the
   80  control of a bulk assignee or bulk buyer pursuant to part VII of
   81  this chapter and complaints against developers, bulk assignees,
   82  or bulk buyers involving improper turnover or failure to
   83  turnover, pursuant to s. 718.301. However, after turnover has
   84  occurred, the division has jurisdiction to investigate
   85  complaints related only to financial issues, elections, and the
   86  maintenance of and unit owner access to association records
   87  under s. 718.111(12), and the procedural completion of
   88  structural integrity reserve studies under s. 718.112(2)(g). If
   89  the division receives a complaint alleging fraud or corruption,
   90  the division must forward the complaint to the Office of the
   91  Condominium Ombudsman.
   92         (a)1. The division may make necessary public or private
   93  investigations within or outside this state to determine whether
   94  any person has violated this chapter or any rule or order
   95  hereunder, to aid in the enforcement of this chapter, or to aid
   96  in the adoption of rules or forms.
   97         2. The division may submit any official written report,
   98  worksheet, or other related paper, or a duly certified copy
   99  thereof, compiled, prepared, drafted, or otherwise made by and
  100  duly authenticated by a financial examiner or analyst to be
  101  admitted as competent evidence in any hearing in which the
  102  financial examiner or analyst is available for cross-examination
  103  and attests under oath that such documents were prepared as a
  104  result of an examination or inspection conducted pursuant to
  105  this chapter.
  106         (b) The division may require or permit any person to file a
  107  statement in writing, under oath or otherwise, as the division
  108  determines, as to the facts and circumstances concerning a
  109  matter to be investigated.
  110         (c) For the purpose of any investigation under this
  111  chapter, the division director or any officer or employee
  112  designated by the division director may administer oaths or
  113  affirmations, subpoena witnesses and compel their attendance,
  114  take evidence, and require the production of any matter which is
  115  relevant to the investigation, including the existence,
  116  description, nature, custody, condition, and location of any
  117  books, documents, or other tangible things and the identity and
  118  location of persons having knowledge of relevant facts or any
  119  other matter reasonably calculated to lead to the discovery of
  120  material evidence. Upon the failure by a person to obey a
  121  subpoena or to answer questions propounded by the investigating
  122  officer and upon reasonable notice to all affected persons, the
  123  division may apply to the circuit court for an order compelling
  124  compliance.
  125         (d) Notwithstanding any remedies available to unit owners
  126  and associations, if the division has reasonable cause to
  127  believe that a violation of any provision of this chapter or
  128  related rule has occurred, the division may institute
  129  enforcement proceedings in its own name against any developer,
  130  bulk assignee, bulk buyer, association, officer, or member of
  131  the board of administration, or its assignees or agents, as
  132  follows:
  133         1. The division may permit a person whose conduct or
  134  actions may be under investigation to waive formal proceedings
  135  and enter into a consent proceeding whereby orders, rules, or
  136  letters of censure or warning, whether formal or informal, may
  137  be entered against the person.
  138         2. The division may issue an order requiring the developer,
  139  bulk assignee, bulk buyer, association, developer-designated
  140  officer, or developer-designated member of the board of
  141  administration, developer-designated assignees or agents, bulk
  142  assignee-designated assignees or agents, bulk buyer-designated
  143  assignees or agents, community association manager, or community
  144  association management firm to cease and desist from the
  145  unlawful practice and take such affirmative action as in the
  146  judgment of the division carry out the purposes of this chapter.
  147  If the division finds that a developer, bulk assignee, bulk
  148  buyer, association, officer, or member of the board of
  149  administration, or its assignees or agents, is violating or is
  150  about to violate any provision of this chapter, any rule adopted
  151  or order issued by the division, or any written agreement
  152  entered into with the division, and presents an immediate danger
  153  to the public requiring an immediate final order, it may issue
  154  an emergency cease and desist order reciting with particularity
  155  the facts underlying such findings. The emergency cease and
  156  desist order is effective for 90 days. If the division begins
  157  nonemergency cease and desist proceedings, the emergency cease
  158  and desist order remains effective until the conclusion of the
  159  proceedings under ss. 120.569 and 120.57.
  160         3. If a developer, bulk assignee, or bulk buyer fails to
  161  pay any restitution determined by the division to be owed, plus
  162  any accrued interest at the highest rate permitted by law,
  163  within 30 days after expiration of any appellate time period of
  164  a final order requiring payment of restitution or the conclusion
  165  of any appeal thereof, whichever is later, the division must
  166  bring an action in circuit or county court on behalf of any
  167  association, class of unit owners, lessees, or purchasers for
  168  restitution, declaratory relief, injunctive relief, or any other
  169  available remedy. The division may also temporarily revoke its
  170  acceptance of the filing for the developer to which the
  171  restitution relates until payment of restitution is made.
  172         4. The division may petition the court for appointment of a
  173  receiver or conservator. If appointed, the receiver or
  174  conservator may take action to implement the court order to
  175  ensure the performance of the order and to remedy any breach
  176  thereof. In addition to all other means provided by law for the
  177  enforcement of an injunction or temporary restraining order, the
  178  circuit court may impound or sequester the property of a party
  179  defendant, including books, papers, documents, and related
  180  records, and allow the examination and use of the property by
  181  the division and a court-appointed receiver or conservator.
  182         5. The division may apply to the circuit court for an order
  183  of restitution whereby the defendant in an action brought under
  184  subparagraph 4. is ordered to make restitution of those sums
  185  shown by the division to have been obtained by the defendant in
  186  violation of this chapter. At the option of the court, such
  187  restitution is payable to the conservator or receiver appointed
  188  under subparagraph 4. or directly to the persons whose funds or
  189  assets were obtained in violation of this chapter.
  190         6. The division may impose a civil penalty against a
  191  developer, bulk assignee, or bulk buyer, or association, or its
  192  assignee or agent, for any violation of this chapter or related
  193  rule. The division may impose a civil penalty individually
  194  against an officer or board member who willfully and knowingly
  195  violates this chapter, an adopted rule, or a final order of the
  196  division; may order the removal of such individual as an officer
  197  or from the board of administration or as an officer of the
  198  association; and may prohibit such individual from serving as an
  199  officer or on the board of a community association for a period
  200  of time. The term “willfully and knowingly” means that the
  201  division informed the officer or board member that his or her
  202  action or intended action violates this chapter, a rule adopted
  203  under this chapter, or a final order of the division and that
  204  the officer or board member refused to comply with the
  205  requirements of this chapter, a rule adopted under this chapter,
  206  or a final order of the division. The division, before
  207  initiating formal agency action under chapter 120, must afford
  208  the officer or board member an opportunity to voluntarily
  209  comply, and an officer or board member who complies within 10
  210  days is not subject to a civil penalty. A penalty may be imposed
  211  on the basis of each day of continuing violation, but the
  212  penalty for any offense may not exceed $5,000. The division
  213  shall adopt, by rule, penalty guidelines applicable to possible
  214  violations or to categories of violations of this chapter or
  215  rules adopted by the division. The guidelines must specify a
  216  meaningful range of civil penalties for each such violation of
  217  the statute and rules and must be based upon the harm caused by
  218  the violation, upon the repetition of the violation, and upon
  219  such other factors deemed relevant by the division. For example,
  220  the division may consider whether the violations were committed
  221  by a developer, bulk assignee, or bulk buyer, or owner
  222  controlled association, the size of the association, and other
  223  factors. The guidelines must designate the possible mitigating
  224  or aggravating circumstances that justify a departure from the
  225  range of penalties provided by the rules. It is the legislative
  226  intent that minor violations be distinguished from those which
  227  endanger the health, safety, or welfare of the condominium
  228  residents or other persons and that such guidelines provide
  229  reasonable and meaningful notice to the public of likely
  230  penalties that may be imposed for proscribed conduct. This
  231  subsection does not limit the ability of the division to
  232  informally dispose of administrative actions or complaints by
  233  stipulation, agreed settlement, or consent order. All amounts
  234  collected shall be deposited with the Chief Financial Officer to
  235  the credit of the Division of Florida Condominiums, Timeshares,
  236  and Mobile Homes Trust Fund. If a developer, bulk assignee, or
  237  bulk buyer fails to pay the civil penalty and the amount deemed
  238  to be owed to the association, the division shall issue an order
  239  directing that such developer, bulk assignee, or bulk buyer
  240  cease and desist from further operation until such time as the
  241  civil penalty is paid or may pursue enforcement of the penalty
  242  in a court of competent jurisdiction. If an association fails to
  243  pay the civil penalty, the division shall pursue enforcement in
  244  a court of competent jurisdiction, and the order imposing the
  245  civil penalty or the cease and desist order is not effective
  246  until 20 days after the date of such order. Any action commenced
  247  by the division shall be brought in the county in which the
  248  division has its executive offices or in the county where the
  249  violation occurred.
  250         7. If a unit owner presents the division with proof that
  251  the unit owner has requested access to official records in
  252  writing by certified mail, and that after 10 days the unit owner
  253  again made the same request for access to official records in
  254  writing by certified mail, and that more than 10 days has
  255  elapsed since the second request and the association has still
  256  failed or refused to provide access to official records as
  257  required by this chapter, the division shall issue a subpoena
  258  requiring production of the requested records where the records
  259  are kept pursuant to s. 718.112.
  260         8. In addition to subparagraph 6., the division may seek
  261  the imposition of a civil penalty through the circuit court for
  262  any violation for which the division may issue a notice to show
  263  cause under paragraph (r). The civil penalty shall be at least
  264  $500 but no more than $5,000 for each violation. The court may
  265  also award to the prevailing party court costs and reasonable
  266  attorney fees and, if the division prevails, may also award
  267  reasonable costs of investigation.
  268         (e) The division may prepare and disseminate a prospectus
  269  and other information to assist prospective owners, purchasers,
  270  lessees, and developers of residential condominiums in assessing
  271  the rights, privileges, and duties pertaining thereto.
  272         (f) The division may adopt rules to administer and enforce
  273  this chapter.
  274         (g) The division shall establish procedures for providing
  275  notice to an association and the developer, bulk assignee, or
  276  bulk buyer during the period in which the developer, bulk
  277  assignee, or bulk buyer controls the association if the division
  278  is considering the issuance of a declaratory statement with
  279  respect to the declaration of condominium or any related
  280  document governing such condominium community.
  281         (h) The division shall furnish each association that pays
  282  the fees required by paragraph (2)(a) a copy of this chapter, as
  283  amended, and the rules adopted thereto on an annual basis.
  284         (i) The division shall annually provide each association
  285  with a summary of declaratory statements and formal legal
  286  opinions relating to the operations of condominiums which were
  287  rendered by the division during the previous year.
  288         (j) The division shall provide training and educational
  289  programs for condominium association board members and unit
  290  owners. The training may, in the division’s discretion, include
  291  web-based electronic media and live training and seminars in
  292  various locations throughout the state. The division may review
  293  and approve education and training programs for board members
  294  and unit owners offered by providers and shall maintain a
  295  current list of approved programs and providers and make such
  296  list available to board members and unit owners in a reasonable
  297  and cost-effective manner.
  298         (k) The division shall maintain a toll-free telephone
  299  number accessible to condominium unit owners.
  300         (l) The division shall develop a program to certify both
  301  volunteer and paid mediators to provide mediation of condominium
  302  disputes. The division shall provide, upon request, a list of
  303  such mediators to any association, unit owner, or other
  304  participant in alternative dispute resolution proceedings under
  305  s. 718.1255 requesting a copy of the list. The division shall
  306  include on the list of volunteer mediators only the names of
  307  persons who have received at least 20 hours of training in
  308  mediation techniques or who have mediated at least 20 disputes.
  309  In order to become initially certified by the division, paid
  310  mediators must be certified by the Supreme Court to mediate
  311  court cases in county or circuit courts. However, the division
  312  may adopt, by rule, additional factors for the certification of
  313  paid mediators, which must be related to experience, education,
  314  or background. Any person initially certified as a paid mediator
  315  by the division must, in order to continue to be certified,
  316  comply with the factors or requirements adopted by rule.
  317         (m) If a complaint is made, the division must conduct its
  318  inquiry with due regard for the interests of the affected
  319  parties. Within 30 days after receipt of a complaint, the
  320  division shall acknowledge the complaint in writing and notify
  321  the complainant whether the complaint is within the jurisdiction
  322  of the division and whether additional information is needed by
  323  the division from the complainant. The division shall conduct
  324  its investigation and, within 90 days after receipt of the
  325  original complaint or of timely requested additional
  326  information, take action upon the complaint. However, the
  327  failure to complete the investigation within 90 days does not
  328  prevent the division from continuing the investigation,
  329  accepting or considering evidence obtained or received after 90
  330  days, or taking administrative action if reasonable cause exists
  331  to believe that a violation of this chapter or a rule has
  332  occurred. If an investigation is not completed within the time
  333  limits established in this paragraph, the division shall, on a
  334  monthly basis, notify the complainant in writing of the status
  335  of the investigation. When reporting its action to the
  336  complainant, the division shall inform the complainant of any
  337  right to a hearing under ss. 120.569 and 120.57. The division
  338  may adopt rules regarding the submission of a complaint against
  339  an association.
  340         (n) Condominium association directors, officers, and
  341  employees; condominium developers; bulk assignees, bulk buyers,
  342  and community association managers; and community association
  343  management firms have an ongoing duty to reasonably cooperate
  344  with the division in any investigation under this section. The
  345  division shall refer to local law enforcement authorities any
  346  person whom the division believes has altered, destroyed,
  347  concealed, or removed any record, document, or thing required to
  348  be kept or maintained by this chapter with the purpose to impair
  349  its verity or availability in the department’s investigation.
  350         (o) The division may:
  351         1. Contract with agencies in this state or other
  352  jurisdictions to perform investigative functions; or
  353         2. Accept grants-in-aid from any source.
  354         (p) The division shall cooperate with similar agencies in
  355  other jurisdictions to establish uniform filing procedures and
  356  forms, public offering statements, advertising standards, and
  357  rules and common administrative practices.
  358         (q) The division shall consider notice to a developer, bulk
  359  assignee, or bulk buyer to be complete when it is delivered to
  360  the address of the developer, bulk assignee, or bulk buyer
  361  currently on file with the division.
  362         (r) In addition to its enforcement authority, the division
  363  may issue a notice to show cause, which must provide for a
  364  hearing, upon written request, in accordance with chapter 120.
  365         (s) The division shall submit to the Governor, the
  366  President of the Senate, the Speaker of the House of
  367  Representatives, and the chairs of the legislative
  368  appropriations committees an annual report that includes, but
  369  need not be limited to, the number of training programs provided
  370  for condominium association board members and unit owners, the
  371  number of complaints received by type, the number and percent of
  372  complaints acknowledged in writing within 30 days and the number
  373  and percent of investigations acted upon within 90 days in
  374  accordance with paragraph (m), and the number of investigations
  375  exceeding the 90-day requirement. The annual report must also
  376  include an evaluation of the division’s core business processes
  377  and make recommendations for improvements, including statutory
  378  changes. The report shall be submitted by September 30 following
  379  the end of the fiscal year.
  380         Section 3. Subsections (11), (12), and (13) are added to
  381  section 718.5012, Florida Statutes, to read:
  382         718.5012 Ombudsman; powers and duties.—The ombudsman shall
  383  have the powers that are necessary to carry out the duties of
  384  his or her office, including the following specific powers:
  385         (11)To void an election if the ombudsman determines that a
  386  violation of this chapter has occurred relating to a condominium
  387  association election.
  388         (12)To petition the court to appoint a receiver if the
  389  appointment of a receiver is in the best interests of the
  390  association or unit owners.
  391         (13)To subpoena, audit, and investigate for the purposes
  392  of the Condominium Fraud Investigation Pilot Program under s.
  393  16.81.
  394         Section 4. This act shall take effect October 1, 2023.