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.