COMMUNITY ASSOCIATIONS AND THE "SUNSHINE LAW"

An Opinion By Jan Bergemann 
President, Cyber Citizens For Justice, Inc.

Published January 21, 2012

We hear it all the time from owners, board members, community association managers and even attorneys: "You violated the Sunshine Law!"

Let's make one thing very clear: The so-called Sunshine Law is not -- and I repeat NOT -- valid for community association. FS 286.011 -- for example -- describes in detail what kind of entities and elected officials are regulated by the Sunshine Law.

In a column written by Amy Schrader, Esq. under the headline "Florida Sunshine Laws for Homeowners Associations" the author goes further on saying that "The state may impose a noncriminal penalty of up to $500 for any HOA board member who violates the Sunshine Law."

How can a law be enforced for HOAs if that law is only valid for government agencies? Honestly, I'm at a loss to understand such a statement from an attorney. If that really would be the case, it might be a great solution to fill the State's empty coffers. In my opinion more than 100 board members a day violate the Sunshine Law. If all provision of this law would be valid for HOAs -- the State of Florida would have another steady income if they would impose a $500 fine on each one of them, as Amy Schrader claims to be Florida law. Maybe then the Florida legislature wouldn't have to raid the CONDO TRUST FUND each year and all the money collected from condo owners could be actually used for the purpose intended. (Just kidding!)

In my opinion these kinds of statements made by experts (look at the resume of Amy Schrader) only serve to confuse board members and owners even more. Board members and owners need clear statements since most of them lack the background to understand "legalese."

What all these experts try to say is that many provisions in FS 718, FS 719, FS 720 and FS 723 are similar to provisions in the Sunshine Law. But similar doesn't mean that the Sunshine Law applies. Only too often we wish that the Sunshine Law really would apply to community associations. Don't forget, the Sunshine Law provides enforcement and penalties -- meaning teeth -- while the community association statutes totally lack any kind of real enforcement. The State of Florida hasn't even created a government agency to regulate homeowners' associations. Even if owners can prove that board members violated the meeting provisions, they have nowhere to go to file a grievance. They could sue -- but then what? 

Violations of the record laws in FS 720 carry a penalty of $500, but trying to enforce this penalty is much more expensive (presuit mediation and court cost) than the amount the penalty provides. 

In other words, while the Sunshine Law (FS 286) has teeth, the community association statutes are absolutely toothless -- and that is exactly the reason why many board members and community association managers ignore these statutes, knowing full well that a violation of these statutes really carries no penalty.

TO MAKE IT VERY CLEAR FOR EVERYBODY:

If board members violate the meeting and open record laws, as contained in the community association statutes, they violate the provisions of these statutes, NOT THE SUNSHINE LAW.