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.
Possible
Consequences for Failure to Comply with Sunshine Law
Requirements
-
The state may
impose a noncriminal penalty of up to $500 for any HOA
board member who violates the Sunshine Law. In any
action brought by the state to enforce the Sunshine Law,
a court can also award reasonable attorney's fees, which
would be payable by the HOA.
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Writing
since 2007, Amy Schrader is an attorney who has practiced
administrative and government law in Florida since 2002. Her
articles appear in the Florida Bar's Continuing Legal
Education publications and the Administrative Law Section
newsletter. Schrader has a Master of Arts in international
affairs and a Juris Doctor from Florida State University.
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286.011
Public
meetings and records; public inspection; criminal and civil
penalties.—
(1)
All
meetings of any board or commission of any state agency or
authority or of any agency or authority of any county, municipal
corporation, or political subdivision, except as otherwise
provided in the Constitution, at which official acts are to be
taken are declared to be public meetings open to the public at all
times, and no resolution, rule, or formal action shall be
considered binding except as taken or made at such meeting. The
board or commission must provide reasonable notice of all such
meetings.
(2)
The
minutes of a meeting of any such board or commission of any such
state agency or authority shall be promptly recorded, and such
records shall be open to public inspection. The circuit courts of
this state shall have jurisdiction to issue injunctions to enforce
the purposes of this section upon application by any citizen of
this state.
(3)(a)
Any
public officer who violates any provision of this section is
guilty of a noncriminal infraction, punishable by fine not
exceeding $500
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