An Opinion By Jan Bergemann
Published 4 - 20 - 2004

Homeowners' activists are used to being called names, from "disgruntled" to "radicals" and "anarchists."

Admiring a Community Association Institute lobbyist for "killing" a bill that never existed is another piece of work. And so is falsely accusing people of trying to (quote): "wriggle out of their obligations"!

But considering the creation of a government agency with enforcement power as "an invitation to chaos" is definitely overstepping the ethics a little?

We are all used to weird people making statements like that. And we are all used to people shooting off their mouths without checking for facts!

But if this person is the Chairman of the Florida Commission on Ethics it's definitely a little different. Many citizens in Florida often wonder where the word "ethics" still fits in our society. But no wonder, if another fox is guarding the hen house!

Richard L. Spears, a former CAI executive, is now the chairman of this Commission on Ethics. A Republican from Orlando, Spears was appointed to the Commission in 2001 by former Speaker of the House of Representatives, Tom Feeney. According to Spear’s letter, Feeney is the same speaker who requested Representative Randy Johnson to work to defeat this [nonexistent] legislation. 

This is the same Richard Spears who wrote the infamous "OCHA" letter , then refused to apologize after having to admit to making false and slanderous statements.

Spears is the same self-appointed guru ["a teacher and especially intellectual guide in matters of fundamental concern" (Merriam-Webster)] whose "well-meaning" letter to legislators consists of paragraphs copied and pasted written by Spears’ mentor, Gary Poliakoff. 

But if the result is consistent with his ideas, he is even willing to accept the findings of a task force, which one of his colleagues considers "likely just to be a traveling gripe-show."

                  It seems it always just depends on the outcome?

Please read the letters below and the copies of the letters he wrote to State legislators in the past. In my opinion, his attitude shows where the industry is willing to go to ignore the rights of homeowners in Florida. 

After you read all of Spears’ statements and letters, do you still think that the author is qualified to chair the Florida Commission on Ethics? Please don't wonder why ethics today are only a very tiny piece of our lives! 

           And it shows that as soon as people run out of good arguments, they have to turn to making false accusations and use name-calling as a weapon.

If you're a legislator and sponsor of a bill, is that the supporter you would like to have writing you "Thank You" letters?

I personally wouldn't like to be in any way associated with these kinds of people!

Dear Senator Atwater:

    By way of introduction, I am former president of the Orange County Homeowners Association Alliance which has nearly 200,000 homeowners in more than 240 homeowners associations under its umbrella.

    We understand that some members of Cyber Citizens for Justice (which has only 132 members) is attempting to organize rallies at your district offices to persuade you to include a homeowners association member ombudsman in S. 2984.  Apparently, they will demonstrate sometime around noon on Monday, April 12th, oblivious to the fact that your bill will be heard by the committee on Regulated Industries at 12:30 p.m. on the same day.

    Please be assured that this small, radical minority does not represent anywhere near a majority of homeowners who live in mandatory associations.  In fact a survey by the Community Associations Institute (conducted by the Gallop organization) revealed that the profound majority of homeowners are very pleased with their associations.
    The creation of such an ombudsman's office will be a very, very expensive operation running counter to the Governor's objectives of reducing the cost of operating the departments of State government.  Further, it would be an invitation to chaos.  The Governor's task force on homeowners associations wisely declined to include such a recommendation and we are hopeful that you will agree not to include it in the bill.

Thank you and kindest personal regards.

                                                        Richard L. Spears


Distinguished Ladies & Gentlemen:

    Your committee will consider this bill (HB 1223) on Wednesday afternoon.  As such, it is important that you be aware of its serious shortcomings as they relate to the citizens of Florida who have chosen to live in condominiums.

    Before I deal with them, however, you should be alerted to the fact that a noisy minority, unable to resolve issues on their own, will be pushing to make the ombudsman provision of HB 1223 apply to single family homeowners associations in addition to condominiums.  This is an attempt to sneak the "camel's nose under the tent flap" of homeowners associations as a beginning of a state agency to regulate them -- which proposition flies in the face of property rights, property values and the traditional treatment of homeowners associations as a solemn contract/agreement between owners as a group without government interference. Should such an amendment be offered, I urge you to defeat it if for no other reason that condominiums and single family homes are far different things -- one being traditional housing and the other being a child of the law. 

   As to HB 1223 itself, there are a number of things that this bill proposes to do.  Among them are several undesirable provisions including the following.  The bill proposes:

1.      To divest owners of multiple units of more than one vote.  This would deprive owners of more than one unit a voice equal to their financial investment in the community.  I believe this is both an unconstitutional taking of the property rights of existing owners and a disincentive to further development of condominiums in Florida since it fails to make an exception for units owned by condominium developers. (Proposed change to S. 718.104(4)(j), Fla. Stat.)

2.     To create a second class of owners with rights different from existing owners. Those new owners could not be restricted by amendments duly adopted by the members of the association that could operate to “ ....restrict[...] unit owners' rights relating to the rental of units, keeping of pets, or allocation of parking spaces.” The language of the proposal is unnecessary vague. For example, does a limit on the number of occupants in a unit to prevent overcrowding, or the setting of a minimum rental period to prevent short term hotel-like operations, restrict rental rights?  Does the designation of pet-free zones such as elevators, to assist allergic or pet averse persons restrict pet rights?  Also, the creation of a second class of owners whose rights are dependent entirely upon when they bought creates equal protection problems when imposed by state action, and the courts have uniformly stricken private amendments that attempt to do the same thing. (Proposed addition of 718.110(13), Fla. Stat.)

3.      To restrict who can serve on the volunteer Board of Directors of a condominium association by: 
    (A)     Prohibiting anyone who hasn't actually lived in the condominium for at least one-quarter of the year preceding the election from serving. (No provision is made concerning non-election appointments.)  This has the effect of preventing investor owners and others who, because of illness, business, travel or other exigencies of life have been absent from their property from acting fully to protect their investments, particularly when the Condominium Act allows Directors to attend Board meetings via speakerphone, and 
    (B)     Imposing term limits of two (2) years on any serving director, and
    (C)    Requiring criminal background checks on all volunteer candidates, These checks  would be available to all owners (and hence available for further dissemination, notwithstanding any public records exceptions) not to mention that they are prohibitively costly, and
    (D)    Prevent persons within a wide degree of relationship (e.g. second cousins, half and step relations, and even great uncles and aunts) from serving on a Board of Directors at the same time. 

    The pool of candidates who are available and willing to serve in these usually thankless positions is small enough without making it smaller through use of arbitrary and unfair distinctions. The invasiveness of these proposals is enough, we feel, to drive off the typical, well-intentioned volunteer. 

    The language also neglects to differentiate the actions of condominium developers, thus preventing developers from controlling boards for more than two (2) years during development and build-out, or preventing members of family owned development companies from having their family members serving on the developer-controlled board  (Proposed addition of Section 718.1125, Fla. Stat.)

4.     To prevent associations from fully collecting unpaid assessments, interest, costs and late fees, and delaying when a condominium may act to collect a delinquent account.  As any person can understand, to maximize collections you need to minimize the amount you are trying to collect.  By delaying the collection process the bill only increases the likelihood that not all assessments and related charges will be recovered. When a condominium fails to collect from one owner, all of the others must make up the difference.  Also, by changing the order in which partial payments are applied and preventing some debt from becoming the subject of a lien, associations will likely have to forget collection of interest and late fees, something that is required of no other Florida business.  Finally, by attempting to increase by five (5) fold, the potential liability for unpaid assessment imposed on first mortgage holders, the proposal will reduce the availability of mortgage financing for owners and incur the enmity of the mortgage banking interests. (Proposed amendments to Section 718.116, Fla. Stat.)

5.      To impose criminal liability for maliciously imposing a lien for the purpose of trying to acquire a unit.  While I suspect that this sort of action is quite rare, I foresee that counterclaims based on this theory will be interposed in many, many lien foreclosure actions, as an attempt to impose personal liability and take retribution on directors who have to make the difficult decision to foreclose the association’s lien.  (Proposed addition of Section 718.116(6)(e), Fla. Stat.)

6.     To interfere with the performance by the association of its necessary and statutory duties, such as maintaining, repairing and replacing the common elements. This occurs through the use of this vague proposed language:
    .... any action of the board, even those characterized as special assessments, that imposes a financial hardship on any or all of the unit owners must be ratified by a majority of the voting interests at a duly convened meeting of the association to be held within 60 days of such action or such action shall be void. 
    As you may know, most associations face real problems with apathy.  If a majority of the members cannot be cajoled into voting on a necessary repair, it cannot be undertaken.  Consider what will occur in a natural disaster when the members are disbursed and difficult to find at the very time when necessary action is most needed. In an apathetic or highly absentee community essential services may go begging, simply because a single owner alleges “financial hardship.”  As bad, the proposal fails to give any objective standard for what constitutes a financial hardship.  A single owner operating in bad faith could downgrade the standards of an entire community. (Proposed addition of Section 718.3025(4), Fla. Stat.)

7.    To require competitive bidding for all goods and services, even as to its employees.  I suspect that it will be unrealistically hard to find three (3) maintenance workers willing to bid against each other for a part time job. (Proposed amendment to Section 718.3026, Fla. Stat.)

8.      To mandate training by the Division of Florida Land Sales, Condominiums and Mobile Homes for all new board members, thereby imposing yet new financial obligations on an overburdened and shrinking state government. (Proposed amendment to Section 718.501(1), Fla. Stat.)

9.      To create both an ombudsman and advisory council with broad powers and a mandate to assist owners in disputes with their associations.  Again, I believe this is neither a wise use of tax resources, nor an appropriate balancing of the rights of individual owners and their collective associations.

    I respectfully suggest that the proposals in the bill are vague, poorly drafted, ill-conceived and not at all in the best interest of the citizens of the State of Florida or your constituents.

     As many of you know, I have found myself in the position of a kind of Homeowners Association "guru" as the result of many years of service in the field.  I did not seek such a position, but I do believe that all of us have a duty to "give back" in our wonderful country and state.  It is in that spirit that I respectfully submit the foregoing.

                                                        Richard L. Spears