|Bill Summary By
CCFJ Director for Legislative Affairs
Milena Macias, Esq.
1. Criminal penalties defined for kickbacks and acceptance of things or services of value.This provision relates to the acceptance of things or services of value or kickbacks. The proposed bill states that an officer, director, or manager who solicits, or offers to accept services of value or "kickbacks" "commits a felony of the third degree, punishable as provided in 63 s. 775.082, s. 775.083, or s. 775.084". A felony of the third degree is punishable by up to five years in prison and a fine of up to $5,000, and this provision seeks to give greater clarity to "criminal penalties."
This is something we should support so that it will act as a deterrence to board members and managers who may be tempted to take "kickbacks" or other services of value.
However, the bill also deletes the following language: "Forgery of a ballot envelope or voting certificate used in a condominium association election is punishable as provided in s. 831.01, the theft or embezzlement of funds of a condominium association is punishable as provided in s. 812.014, and the destruction of or the refusal to allow inspection or copying of an official record of a condominium association that is accessible to unit owners within the time periods required by general law in furtherance of any crime is punishable as tampering with physical evidence as provided in s. 918.13 or as obstruction of justice as provided in chapter 843."
Instead, a new subsection was added to s. 718 (which is detailed below). The language in SB 1752 is identical to HB 1317.
2.Adding Bank Statements, canceled checks, deposit slips as part of Official Records. This provision will revise documents required to be included with accounting records to include all bank statements, canceled checks, and credit card statements, all invoices, transaction receipts, deposit slips, or other underlying documentation that substantiates any receipt or expenditure of funds by the association.
This is something we should support to ensure full, fair and transparent accountability on what the owners monies are actually used for, and they should be part of Official Records. The language in SB 1752 is identical to HB 1317.
3.Official Records to be maintained in a manner and format prescribed by the DBPR. This provision will require an association to maintain official records in a specified manner and format.
This is something we should support so that records are easily accessible for inspection and this will benefit all owners who want to inspect Official Records. The language in SB 1752 is identical to HB 1317.
Revising requirements rebuttable presumption relating to the provision of records. This provision adds new language "that the failure of an association to provide the records within 10 working days after receipt of a written request that complies with the association's document inspection rule creates a rebuttable presumption that the association willfully failed to comply with this paragraph." This new language "that complies with the association's document inspection rule" is interesting because each association may have different inspection rules, or may decide to "change the rules as they go along" and we need further clarification on whether this is in the best interests of the owners. The language in SB 1752 is identical to HB 1317.
Authorizing an association to direct certain persons to the association's website to fulfill certain obligations relating to the inspection of records. This provision makes sense because it will reduce labor costs for the association, but we need to be mindful of owners who do not use computers, or do not have access to a computer. The language in SB 1752 is identical to HB 1317.
Requiring an association to provide a checklist and sworn affidavit to persons requesting to inspect recordsand maintain a copy of the checklist for a specified period of time to create a rebuttable presumption for an association that provides such checklist and sworn affidavit. This provision requires an Association, in response to a statutorily compliant written request to inspect records, to simultaneously provide a checklist to the requestor of all records made available for inspection and copying and a sworn affidavit in which the person facilitating or handling the association's compliance with the request attests to the veracity of the checklist provided to the requestor. The checklist must also identify any of the association's official records that were not made available to the requestor. An association providing a checklist and affidavit pursuant to this sub-subparagraph creates a rebuttable presumption that the association has complied with this paragraph. The language in SB 1752 is identical to HB 1317.
This provision makes sense, but having a sworn affidavit may prove difficult since many Associations are run by one-person offices. That will increase labor burden on the Association if the community association manager needs to run out and get things signed by a notary and disrupt projects that the property manager is doing. And, since a notary only acknowledges someone’s signature, not the contents of the affidavit, it may be better that something on letterhead be used instead of an affidavit.
Providing criminal penalties for certain violations relating to official association records. This provision requires any director or member of the board or association or a community association manager who knowingly, willfully, and repeatedly violates access to official records to commit a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. A misdemeanor of the second degree conviction can result in a jail term of up to 60 days and a fine of up to $500. The new language "repeatedly" has been defined in the bill as means two or more violations within a 12-month period. The language in SB 1752 is identical to HB 1317.
We should support this provision because once may be a mistake, twice is on purpose with association managers and board members who violate access to official records.
Willfully defacing or destroying accounting records. This provision deletes "intentionally and adds in new language, "willfully". In addition, the penalty for community association managers and boards who knowingly or intentionally fail to create or maintain accounting records that are required to be created or maintained, with the intent of causing harm to the association or one or more of its members, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. First degree misdemeanors are the most serious misdemeanors, punishable by jail terms of up to one year and fines of up to $1,000. Further, the new bill adds new language for "any person who willfully and knowingly refuses to release or otherwise produce association records with the intent to avoid or escape detection, arrest, trial, or punishment for the commission of a crime, or to assist another person with such avoidance or escape, commits a felony of the third degree." This is valuable because it might be that other owners or staff may be participating in hindering the owners rights to view Official Records and we should support this provision. The language in SB 1752 is identical to HB 1317.
Requiring certain associations to post copies of certain documents on their websites by a January 1, 2022 and requiring association managing a condominium with 25 or more units which does not contain timeshare units shall post digital copies of the documents specified on its website. The language in SB 1752 is identical to HB 1317.
This is an extremely important provision that we must support – this provision removes 150 or more units, and makes it fairer and more transparent to owners who live in condominiums containing 25 or more units to allow them inspection by tenants or unit owners or their authorized representatives.
Revising criminal penalties relating to the use of association debit cards and defining the term "lawful obligation of the association." This provision relates to use
of a debit card issued in the name of the association, or billed directly to the association, for any expense that is not a lawful obligation of the association commits theft under s. 812.014. The new language, "lawful obligation of the association," means an obligation that has been properly preapproved by the board and is reflected in the meeting minutes or the written budget. The language in SB 1752 is identical to HB 1317.
This is an important provision that we must support. Community Association Managers and board members should not be allowed to use debit cards for personal use, and if they do so, they may be prosecuted for credit card fraud. Owners need to know where their monies are going to and if its not in the budget, or reflected in meeting minutes, then it should not be allowed.
4.Creating s. 718.129, 26 F.S. to provide criminal penalties for fraudulent voting activities related to association elections. This provision adds a new section to s. 718 F.S., to deal with fraudulent voting relating to association elections, and imposes criminal penalties. The following acts are punishable as a felony of the third degree: (a) Willfully and falsely swearing or affirming any oath or affirmation, or willfully procuring another person to swear or affirm falsely to an oath or affirmation, in connection with or arising out of voting or elections; (b) perpetrating or attempting to perpetrate, or aiding in the perpetration of, any fraud in connection with any vote cast, to be cast, or attempted to be cast; (c) preventing an elector from voting, or preventing an elector from voting as the elector intended, by fraudulently changing or attempting to change a ballot, ballot envelope, vote, or voting certificate of the elector; (d) using bribery, menace, threat, or any other corruption to attempt, directly or indirectly, to influence, deceive, or deter any elector in voting; (e) directly or indirectly giving or promising anything of value to another person with the intent to buy the vote of that person or another person or to corruptly influence that person or another person in casting his or her vote. (This does not apply to the serving of food to be consumed at an election rally or meeting or to any item of nominal value which is used as an election advertisement, including a campaign message designed to be worn by a person); (f) directly or indirectly using or threatening to use force, violence, or intimidation or any tactic of coercion or intimidation to induce or compel an individual to vote or refrain from voting in an election or on any particular ballot measure.
In addition, the new proposed language includes as punishable as a felony of the third degree to (a) knowingly aid, abet, or advise a person in the commission of a fraudulent voting activity related to association election, (b) agreeing, conspiring, combining, or confederating with at least one other person to commit a fraudulent voting activity related to association elections, (c) having knowledge of a fraudulent voting activity related to association elections and giving any aid to the offender with intent that the offender avoid or escape detection, arrest, trial, or punishment.
This new language will help owners in achieving fair, free and full elections. There are too many devious ways that persons who want to be in power can bribe, or otherwise influence elections by intimidation. And the penalty that it is a felony of the third degree is punishable by up to five years in prison and a fine of up to $5,000. The language in SB 1752 is identical to HB 1317.
On the positive side, baking cookies or providing food as part of a campaign is considered to be acceptable.
5. Amending s. 718.501, F.S. to revise the jurisdiction of the Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation with regard to investigating certain complaints; defining the term "financial issue"; authorizing the division to make certain rules; providing an effective date of October 20, 2020.
This is an excellent provision that we need to support. The language in SB 1752 is identical to HB 1317. This will allow the division the jurisdiction to investigate complaints including maintenance of official records, and unit owner access to association records pursuant to s. 718.111(12) F.S., as well as financial issues and elections. This provision also defines the term "financial issue" to include operating budgets; reserve schedules; accounting records under s. 718.111(12)(a)11.; notices of meetings and meeting minutes for budget- or financial statement-related meetings; any assessments for common expenses, fees, or fines; commingling of funds; and any other records necessary to determine the revenues and expenses of the association and also allows the division to adopt additional rules to further define the term "financial issue." Even though the DBPR has weak teeth, something is better than nothing, and this will provide us with some measure of relief if boards and community association managers fail to fulfill their obligations and fiduciary duties.
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