|
H1229
GENERAL BILL by Representative Julio Robaina : Co-Sponsors: Anitere Flores, Anne Gannon, Priscilla Taylor,
David Rivera, Juan Zapata
Referred
Committees and Committee Actions:
Civil Justice
Committee
STAFF
ANALYSIS
State
Administration Appropriations Committee
Justice
Council
|
Homeowners'
and Condominium Associations: Redesignates
the Division of Florida Land Sales, Condominiums, and Mobile Homes as the
Division of Florida Land Sales, Condominiums, Homeowners' Associations,
Community Association Management, and Mobile Homes; provides a definition;
provides that the Regulatory Council of Community Association Managers
shall be within the Division of Florida Land Sales, Condominiums,
Homeowners' Associations, Community Association Management, and Mobile
Homes; provides that community association managers are subject to
disciplinary action upon a finding by the division; requires the division
to refer its findings to the Department of Business and Professional
Regulation; includes cooperative units into rental rights grandfathered
clause; provides condominium associations guidelines for the designation
of disabled parking; requires association bylaws to mandate a specified
reserve minimum; provides powers of the division to include homeowners'
associations and community association management; requires training of
condominium association board members; requires notice of violations;
provides criteria for notice, including a response deadline; provides the
ombudsman with certain powers concerning homeowners' associations;
provides that an association or board may not waive its audit for more
than 2 consecutive years.
|
| Effective
Date: July 1, 2005. |
| 1 |
A bill to be entitled |
| 2 |
An act relating to homeowners' and
condominium |
| 3 |
associations; amending s. 20.165, F.S.;
redesignating the |
| 4 |
Division of Florida Land Sales,
Condominiums, and Mobile |
| 5 |
Homes as the Division of Florida Land
Sales, Condominiums, |
| 6 |
Homeowners' Associations, Community
Association |
| 7 |
Management, and Mobile Homes; amending
s. 468.431, F.S.; |
| 8 |
providing a definition; amending s.
468.4315, F.S.; |
| 9 |
providing that the Regulatory Council of
Community |
| 10 |
Association Managers shall be within the
Division of |
| 11 |
Florida Land Sales, Condominiums,
Homeowners' |
| 12 |
Associations, Community Association
Management, and Mobile |
| 13 |
Homes; amending s. 468.436, F.S.;
providing that community |
| 14 |
association managers are subject to
disciplinary action |
| 15 |
upon a finding by the division;
requiring the division to |
| 16 |
refer its findings to the Department of
Business and |
| 17 |
Professional Regulation; providing
penalties; amending s. |
| 18 |
718.111, F.S.; providing condominium
associations |
| 19 |
guidelines for the designation of
disabled parking; |
| 20 |
amending s. 718.112, F.S.; requiring
association bylaws to |
| 21 |
mandate a specified reserve minimum;
amending s. 718.501, |
| 22 |
F.S.; providing powers of the division
to include |
| 23 |
homeowners' associations and community
association |
| 24 |
management; requiring training of
condominium association |
| 25 |
board members; requiring notice of
violations; providing |
| 26 |
criteria for notice, including a
response deadline; |
| 27 |
amending s. 718.5012, F.S.; providing
the ombudsman with |
| 28 |
certain powers concerning homeowners'
associations; |
| 29 |
amending s. 719.104, F.S.; providing
that an association |
| 30 |
or board may not waive its audit for
more than 2 |
| 31 |
consecutive years; amending s. 719.1055,
F.S.; including |
| 32 |
cooperative units in rental rights
grandfathered clause; |
| 33 |
creating s. 720.3015, F.S.; providing
the division with |
| 34 |
certain powers and duties relating to
homeowners' |
| 35 |
associations; creating s. 720.3071, F.S.;
requiring |
| 36 |
training of homeowners' association
board members; |
| 37 |
amending ss. 73.073, 190.009, 192.037,
213.053, 215.20, |
| 38 |
326.002, 326.006, 380.0651, 455.116,
475.455, 498.005, |
| 39 |
498.019, 498.047, 498.049, 509.512,
559.935, 718.103, |
| 40 |
718.105, 718.1255, 718.5011, 718.502,
718.504, 718.508, |
| 41 |
718.509, 718.608, 719.103, 719.1255,
719.501, 719.502, |
| 42 |
719.504, 719.508, 719.608, 720.301,
721.05, 721.07, |
| 43 |
721.08, 721.26, 721.28, 721.301, 721.50,
723.003, 723.006, |
| 44 |
723.009, and 723.0611, F.S., to conform
references; |
| 45 |
providing an effective date. |
| 46 |
|
| 47 |
Be It Enacted by the Legislature of the State of
Florida: |
| 48 |
|
| 49 |
Section 1. Paragraph
(d) of subsection (2) of section |
| 50 |
20.165, Florida Statutes, is amended to read: |
| 51 |
20.165 Department
of Business and Professional |
| 52 |
Regulation.--There is created a Department of
Business and |
| 53 |
Professional Regulation. |
| 54 |
(2) The
following divisions of the Department of Business |
| 55 |
and Professional Regulation are established: |
| 56 |
(d) Division
of Florida Land Sales, Condominiums, |
| 57 |
Homeowners' Associations, Community Association
Management, and |
| 58 |
Mobile Homes. |
| 59 |
Section 2. Subsection
(5) of section 468.431, Florida |
| 60 |
Statutes, is renumbered as subsection (6), and a new
subsection |
| 61 |
(5) is added to said section, to read: |
| 62 |
468.431 Definitions.-- |
| 63 |
(5) "Division"
means the Division of Florida Land Sales, |
| 64 |
Condominiums, Homeowners' Associations, Community
Association |
| 65 |
Management, and Mobile Homes of the Department of
Business and |
| 66 |
Professional Regulation. |
| 67 |
Section 3. Subsection
(1) of section 468.4315, Florida |
| 68 |
Statutes, is amended to read: |
| 69 |
468.4315 Regulatory
Council of Community Association |
| 70 |
Managers.-- |
| 71 |
(1) The
Regulatory Council of Community Association |
| 72 |
Managers is created within the division department
and shall |
| 73 |
consist of seven members appointed by the Governor
and confirmed |
| 74 |
by the Senate. |
| 75 |
(a) Five
members of the council shall be licensed |
| 76 |
community association managers, one of whom shall be
a community |
| 77 |
association manager employed by a timeshare managing
entity as |
| 78 |
described in ss. 468.438 and 721.13, who have held an
active |
| 79 |
license for 5 years. The remaining two council
members shall be |
| 80 |
residents of this state and must not be or ever have
been |
| 81 |
connected with the business of community association
management. |
| 82 |
(b) The
Governor shall appoint members for terms of 4 |
| 83 |
years. Such members shall serve until their
successors are |
| 84 |
appointed. Members' service on the council shall
begin upon |
| 85 |
appointment and shall continue until their successors
are |
| 86 |
appointed. |
| 87 |
Section 4. Section
468.436, Florida Statutes, is amended |
| 88 |
to read: |
| 89 |
468.436 Disciplinary
proceedings.-- |
| 90 |
(1) Upon
a finding by the division, the following acts |
| 91 |
constitute grounds for which the disciplinary actions
in |
| 92 |
subsection (3) may be taken: |
| 93 |
(a) Violation
of any provision of s. 455.227(1). |
| 94 |
(b)1. Violation
of any provision of this part. |
| 95 |
2. Violation
of any lawful order or rule rendered or |
| 96 |
adopted by the department or the council. |
| 97 |
3. Being
convicted of or pleading nolo contendere to a |
| 98 |
felony in any court in the United States. |
| 99 |
4. Obtaining
a license or certification or any other |
| 100 |
order, ruling, or authorization by means of fraud, |
| 101 |
misrepresentation, or concealment of material facts. |
| 102 |
5. Committing
acts of gross misconduct or gross negligence |
| 103 |
in connection with the profession. |
| 104 |
(2) The
council shall specify by rule the acts or |
| 105 |
omissions that constitute a violation of subsection
(1). |
| 106 |
(3) When the
division department finds any community |
| 107 |
association manager guilty of any of the grounds set
forth in |
| 108 |
subsection (1), it shall refer the matter to the
department, |
| 109 |
which may enter an order imposing one or more
of the following |
| 110 |
penalties: |
| 111 |
(a) Denial
of an application for licensure. |
| 112 |
(b) Revocation
or suspension of a license. |
| 113 |
(c) Imposition
of an administrative fine not to exceed |
| 114 |
$5,000 for each count or separate offense. |
| 115 |
(d) Issuance
of a reprimand. |
| 116 |
(e) Placement
of the community association manager on |
| 117 |
probation for a period of time and subject to such
conditions as |
| 118 |
the department specifies. |
| 119 |
(f) Restriction
of the authorized scope of practice by the |
| 120 |
community association manager. |
| 121 |
(4) The
department shall reissue the license of a |
| 122 |
disciplined community association manager upon
certification by |
| 123 |
the department that the disciplined person has
complied with all |
| 124 |
of the terms and conditions set forth in the final
order. |
| 125 |
Section 5. Subsection
(15) is added to section 718.111, |
| 126 |
Florida Statutes, to read: |
| 127 |
718.111 The
association.-- |
| 128 |
(15) PARKING
SPACES FOR PERSONS WHO HAVE |
| 129 |
DISABILITIES.--Where guest parking is provided,
guest parking |
| 130 |
spaces shall be configured and assigned pursuant
to s. 553.5041. |
| 131 |
The association may increase the number of guest
parking spaces, |
| 132 |
if needed. Residents with disabilities shall not
park in a |
| 133 |
disabled guest parking space unless their assigned
parking space |
| 134 |
is in use illegally. Resident disabled parking
shall be by |
| 135 |
assignment from available spaces by the
association, pursuant to |
| 136 |
local fair housing law. When a resident has two
vehicles, one |
| 137 |
equipped with a lift, the association shall assign
a second |
| 138 |
parking space that satisfies the needs of the
vehicle's lift |
| 139 |
operation, if an additional parking space is
available and |
| 140 |
unassigned. |
| 141 |
Section 6. Paragraph
(f) of subsection (2) of section |
| 142 |
718.112, Florida Statutes, is amended to read: |
| 143 |
718.112 Bylaws.-- |
| 144 |
(2) REQUIRED
PROVISIONS.--The bylaws shall provide for the |
| 145 |
following and, if they do not do so, shall be deemed
to include |
| 146 |
the following: |
| 147 |
(f) Annual
budget.-- |
| 148 |
1. The
proposed annual budget of common expenses shall be |
| 149 |
detailed and shall show the amounts budgeted by
accounts and |
| 150 |
expense classifications, including, if applicable,
but not |
| 151 |
limited to, those expenses listed in s. 718.504(21).
A |
| 152 |
multicondominium association shall adopt a separate
budget of |
| 153 |
common expenses for each condominium the association
operates |
| 154 |
and shall adopt a separate budget of common expenses
for the |
| 155 |
association. In addition, if the association
maintains limited |
| 156 |
common elements with the cost to be shared only by
those |
| 157 |
entitled to use the limited common elements as
provided for in |
| 158 |
s. 718.113(1), the budget or a schedule attached
thereto shall |
| 159 |
show amounts budgeted therefor. If, after turnover of
control of |
| 160 |
the association to the unit owners, any of the
expenses listed |
| 161 |
in s. 718.504(21) are not applicable, they need not
be listed. |
| 162 |
2. In
addition to annual operating expenses, the budget |
| 163 |
shall include reserve accounts for capital
expenditures and |
| 164 |
deferred maintenance. These accounts shall include,
but are not |
| 165 |
limited to, roof replacement, building painting, and
pavement |
| 166 |
resurfacing, regardless of the amount of deferred
maintenance |
| 167 |
expense or replacement cost, and for any other item
for which |
| 168 |
the deferred maintenance expense or replacement cost
exceeds |
| 169 |
$10,000. The amount to be reserved shall be computed
by means of |
| 170 |
a formula which is based upon estimated remaining
useful life |
| 171 |
and estimated replacement cost or deferred
maintenance expense |
| 172 |
of each reserve item. The association may adjust
replacement |
| 173 |
reserve assessments annually to take into account any
changes in |
| 174 |
estimates or extension of the useful life of a
reserve item |
| 175 |
caused by deferred maintenance. Reserves shall
maintain a |
| 176 |
minimum level of at least 10 percent of the yearly
operating |
| 177 |
budget. This subsection does not apply to an
adopted budget in |
| 178 |
which the members of an association have determined,
by a |
| 179 |
majority vote at a duly called meeting of the
association, to |
| 180 |
provide no reserves or less reserves than required by
this |
| 181 |
subsection. However, prior to turnover of control of
an |
| 182 |
association by a developer to unit owners other than
a developer |
| 183 |
pursuant to s. 718.301, the developer may vote to
waive the |
| 184 |
reserves or reduce the funding of reserves for the
first 2 |
| 185 |
fiscal years of the association's operation,
beginning with the |
| 186 |
fiscal year in which the initial declaration is
recorded, after |
| 187 |
which time reserves may be waived or reduced only
upon the vote |
| 188 |
of a majority of all nondeveloper voting interests
voting in |
| 189 |
person or by limited proxy at a duly called meeting
of the |
| 190 |
association. If a meeting of the unit owners has been
called to |
| 191 |
determine whether to waive or reduce the funding of
reserves, |
| 192 |
and no such result is achieved or a quorum is not
attained, the |
| 193 |
reserves as included in the budget shall go into
effect. After |
| 194 |
the turnover, the developer may vote its voting
interest to |
| 195 |
waive or reduce the funding of reserves. |
| 196 |
3. Reserve
funds and any interest accruing thereon shall |
| 197 |
remain in the reserve account or accounts, and shall
be used |
| 198 |
only for authorized reserve expenditures unless their
use for |
| 199 |
other purposes is approved in advance by a majority
vote at a |
| 200 |
duly called meeting of the association. Prior to
turnover of |
| 201 |
control of an association by a developer to unit
owners other |
| 202 |
than the developer pursuant to s. 718.301, the
developer- |
| 203 |
controlled association shall not vote to use reserves
for |
| 204 |
purposes other than that for which they were intended
without |
| 205 |
the approval of a majority of all nondeveloper voting
interests, |
| 206 |
voting in person or by limited proxy at a duly called
meeting of |
| 207 |
the association. |
| 208 |
4. The only
voting interests which are eligible to vote on |
| 209 |
questions that involve waiving or reducing the
funding of |
| 210 |
reserves, or using existing reserve funds for
purposes other |
| 211 |
than purposes for which the reserves were intended,
are the |
| 212 |
voting interests of the units subject to assessment
to fund the |
| 213 |
reserves in question. |
| 214 |
Section 7. Section
718.501, Florida Statutes, is amended, |
| 215 |
to read: |
| 216 |
718.501 Powers
and duties of Division of Florida Land |
| 217 |
Sales, Condominiums, Homeowners' Associations,
Community |
| 218 |
Association Management, and Mobile Homes.-- |
| 219 |
(1) The
Division of Florida Land Sales, Condominiums, |
| 220 |
Homeowners' Associations, Community Association
Management, and |
| 221 |
Mobile Homes of the Department of Business and
Professional |
| 222 |
Regulation, referred to as the "division"
in this part, in |
| 223 |
addition to other powers and duties prescribed by
chapter 498, |
| 224 |
has the power to enforce and ensure compliance with
the |
| 225 |
provisions of this chapter and rules promulgated
pursuant hereto |
| 226 |
relating to the development, construction, sale,
lease, |
| 227 |
ownership, operation, and management of residential
condominium |
| 228 |
units. In performing its duties, the division has the
following |
| 229 |
powers and duties: |
| 230 |
(a) The
division may make necessary public or private |
| 231 |
investigations within or outside this state to
determine whether |
| 232 |
any person or association has violated this
chapter or any rule |
| 233 |
or order hereunder, to aid in the enforcement of this
chapter, |
| 234 |
or to aid in the adoption of rules or forms
hereunder. |
| 235 |
(b) The
division may require or permit any person to file |
| 236 |
a statement in writing, under oath or otherwise, as
the division |
| 237 |
determines, as to the facts and circumstances
concerning a |
| 238 |
matter to be investigated. |
| 239 |
(c) For the
purpose of any investigation under this |
| 240 |
chapter, the division director or any officer or
employee |
| 241 |
designated by the division director may administer
oaths or |
| 242 |
affirmations, subpoena witnesses and compel their
attendance, |
| 243 |
take evidence, and require the production of any
matter which is |
| 244 |
relevant to the investigation, including the
existence, |
| 245 |
description, nature, custody, condition, and location
of any |
| 246 |
books, documents, or other tangible things and the
identity and |
| 247 |
location of persons having knowledge of relevant
facts or any |
| 248 |
other matter reasonably calculated to lead to the
discovery of |
| 249 |
material evidence. Upon the failure by a person to
obey a |
| 250 |
subpoena or to answer questions propounded by the
investigating |
| 251 |
officer and upon reasonable notice to all persons
affected |
| 252 |
thereby, the division may apply to the circuit court
for an |
| 253 |
order compelling compliance. |
| 254 |
(d) Notwithstanding
any remedies available to unit owners |
| 255 |
and associations, if the division has reasonable
cause to |
| 256 |
believe that a violation of any provision of this
chapter or |
| 257 |
rule promulgated pursuant hereto has occurred, the
division may |
| 258 |
institute enforcement proceedings in its own name
against any |
| 259 |
developer, association, officer, or member of the
board of |
| 260 |
administration, or its assignees or agents, as
follows: |
| 261 |
1. The
division may permit a person whose conduct or |
| 262 |
actions may be under investigation to waive formal
proceedings |
| 263 |
and enter into a consent proceeding whereby orders,
rules, or |
| 264 |
letters of censure or warning, whether formal or
informal, may |
| 265 |
be entered against the person. |
| 266 |
2. The
division may issue an order requiring the |
| 267 |
developer, association, officer, or member of the
board of |
| 268 |
administration, or its assignees or agents, to cease
and desist |
| 269 |
from the unlawful practice and take such affirmative
action as |
| 270 |
in the judgment of the division will carry out the
purposes of |
| 271 |
this chapter. Such affirmative action may include,
but is not |
| 272 |
limited to, an order requiring a developer to pay
moneys |
| 273 |
determined to be owed to a condominium association. |
| 274 |
3. The
division may bring an action in circuit court on |
| 275 |
behalf of a class of unit owners, lessees, or
purchasers for |
| 276 |
declaratory relief, injunctive relief, or
restitution. |
| 277 |
4. The
division may impose a civil penalty against a |
| 278 |
developer or association, or its assignee or agent,
for any |
| 279 |
violation of this chapter or a rule promulgated
pursuant hereto. |
| 280 |
The division may impose a civil penalty individually
against any |
| 281 |
officer or board member who willfully and knowingly
violates a |
| 282 |
provision of this chapter, a rule adopted pursuant
hereto, or a |
| 283 |
final order of the division. The term "willfully
and knowingly" |
| 284 |
means that the division informed the officer or board
member |
| 285 |
that his or her action or intended action violates
this chapter, |
| 286 |
a rule adopted under this chapter, or a final order
of the |
| 287 |
division and that the officer or board member refused
to comply |
| 288 |
with the requirements of this chapter, a rule adopted
under this |
| 289 |
chapter, or a final order of the division. The
division, prior |
| 290 |
to initiating formal agency action under chapter 120,
shall |
| 291 |
afford the officer or board member an opportunity to
voluntarily |
| 292 |
comply with this chapter, a rule adopted under this
chapter, or |
| 293 |
a final order of the division. An officer or board
member who |
| 294 |
complies within 10 days is not subject to a civil
penalty. A |
| 295 |
penalty may be imposed on the basis of each day of
continuing |
| 296 |
violation, but in no event shall the penalty for any
offense |
| 297 |
exceed $5,000. By January 1, 1998, the division shall
adopt, by |
| 298 |
rule, penalty guidelines applicable to possible
violations or to |
| 299 |
categories of violations of this chapter or rules
adopted by the |
| 300 |
division. The guidelines must specify a meaningful
range of |
| 301 |
civil penalties for each such violation of the
statute and rules |
| 302 |
and must be based upon the harm caused by the
violation, the |
| 303 |
repetition of the violation, and upon such other
factors deemed |
| 304 |
relevant by the division. For example, the division
may consider |
| 305 |
whether the violations were committed by a developer
or owner- |
| 306 |
controlled association, the size of the association,
and other |
| 307 |
factors. The guidelines must designate the possible
mitigating |
| 308 |
or aggravating circumstances that justify a departure
from the |
| 309 |
range of penalties provided by the rules. It is the
legislative |
| 310 |
intent that minor violations be distinguished from
those which |
| 311 |
endanger the health, safety, or welfare of the
condominium |
| 312 |
residents or other persons and that such guidelines
provide |
| 313 |
reasonable and meaningful notice to the public of
likely |
| 314 |
penalties that may be imposed for proscribed conduct.
This |
| 315 |
subsection does not limit the ability of the division
to |
| 316 |
informally dispose of administrative actions or
complaints by |
| 317 |
stipulation, agreed settlement, or consent order. All
amounts |
| 318 |
collected shall be deposited with the Chief Financial
Officer to |
| 319 |
the credit of the Division of Florida Land Sales,
Condominiums, |
| 320 |
Homeowners' Associations, Community Association
Management, and |
| 321 |
Mobile Homes Trust Fund. If a developer fails to pay
the civil |
| 322 |
penalty, the division shall thereupon issue an order
directing |
| 323 |
that such developer cease and desist from further
operation |
| 324 |
until such time as the civil penalty is paid or may
pursue |
| 325 |
enforcement of the penalty in a court of competent
jurisdiction. |
| 326 |
If an association fails to pay the civil penalty, the
division |
| 327 |
shall thereupon pursue enforcement in a court of
competent |
| 328 |
jurisdiction, and the order imposing the civil
penalty or the |
| 329 |
cease and desist order will not become effective
until 20 days |
| 330 |
after the date of such order. Any action commenced by
the |
| 331 |
division shall be brought in the county in which the
division |
| 332 |
has its executive offices or in the county where the
violation |
| 333 |
occurred. |
| 334 |
(e) The
division is authorized to prepare and disseminate |
| 335 |
a prospectus and other information to assist
prospective owners, |
| 336 |
purchasers, lessees, and developers of residential
condominiums |
| 337 |
in assessing the rights, privileges, and duties
pertaining |
| 338 |
thereto. |
| 339 |
(f) The
division has authority to adopt rules pursuant to |
| 340 |
ss. 120.536(1) and 120.54 to implement and enforce
the |
| 341 |
provisions of this chapter. |
| 342 |
(g) The
division shall establish procedures for providing |
| 343 |
notice to an association when the division is
considering the |
| 344 |
issuance of a declaratory statement with respect to
the |
| 345 |
declaration of condominium or any related document
governing in |
| 346 |
such condominium community. |
| 347 |
(h) The
division shall furnish each association which pays |
| 348 |
the fees required by paragraph (2)(a) a copy of this
act, |
| 349 |
subsequent changes to this act on an annual basis, an
amended |
| 350 |
version of this act as it becomes available from the
Secretary |
| 351 |
of State's office on a biennial basis, and the rules
promulgated |
| 352 |
pursuant thereto on an annual basis. |
| 353 |
(i) The
division shall annually provide each association |
| 354 |
with a summary of declaratory statements and formal
legal |
| 355 |
opinions relating to the operations of condominiums
which were |
| 356 |
rendered by the division during the previous year. |
| 357 |
(j) The
division shall provide training programs for |
| 358 |
condominium association board members and unit
owners. Training |
| 359 |
shall be mandatory for newly elected board members
and members |
| 360 |
currently serving on a board who have not
previously voluntarily |
| 361 |
attended training. |
| 362 |
(k) The
division shall maintain a toll-free telephone |
| 363 |
number accessible to condominium unit owners. |
| 364 |
(l) The
division shall develop a program to certify both |
| 365 |
volunteer and paid mediators to provide mediation of
condominium |
| 366 |
disputes. The division shall provide, upon request, a
list of |
| 367 |
such mediators to any association, unit owner, or
other |
| 368 |
participant in arbitration proceedings under s.
718.1255 |
| 369 |
requesting a copy of the list. The division shall
include on the |
| 370 |
list of volunteer mediators only the names of persons
who have |
| 371 |
received at least 20 hours of training in mediation
techniques |
| 372 |
or who have mediated at least 20 disputes. In order
to become |
| 373 |
initially certified by the division, paid mediators
must be |
| 374 |
certified by the Supreme Court to mediate court cases
in either |
| 375 |
county or circuit courts. However, the division may
adopt, by |
| 376 |
rule, additional factors for the certification of
paid |
| 377 |
mediators, which factors must be related to
experience, |
| 378 |
education, or background. Any person initially
certified as a |
| 379 |
paid mediator by the division must, in order to
continue to be |
| 380 |
certified, comply with the factors or requirements
imposed by |
| 381 |
rules adopted by the division. |
| 382 |
(m) When a
complaint is made, the division shall conduct |
| 383 |
its inquiry with due regard to the interests of the
affected |
| 384 |
parties. Within 30 days after receipt of a complaint,
the |
| 385 |
division shall acknowledge the complaint in writing
and notify |
| 386 |
the complainant whether the complaint is within the
jurisdiction |
| 387 |
of the division and whether additional information is
needed by |
| 388 |
the division from the complainant. The division shall
conduct |
| 389 |
its investigation and shall, within 90 days after
receipt of the |
| 390 |
original complaint or of timely requested additional |
| 391 |
information, take action upon the complaint. However,
the |
| 392 |
failure to complete the investigation within 90 days
does not |
| 393 |
prevent the division from continuing the
investigation, |
| 394 |
accepting or considering evidence obtained or
received after 90 |
| 395 |
days, or taking administrative action if reasonable
cause exists |
| 396 |
to believe that a violation of this chapter or a rule
of the |
| 397 |
division has occurred. If an investigation is not
completed |
| 398 |
within the time limits established in this paragraph,
the |
| 399 |
division shall, on a monthly basis, notify the
complainant in |
| 400 |
writing of the status of the investigation. When
reporting its |
| 401 |
action to the complainant, the division shall inform
the |
| 402 |
complainant of any right to a hearing pursuant to ss.
120.569 |
| 403 |
and 120.57. |
| 404 |
(n) Any
condominium owner found to be in violation of this |
| 405 |
chapter shall be notified by the department by
certified mail, |
| 406 |
return receipt requested, at which time the
condominium owner |
| 407 |
will have 30 days in which to respond in writing. |
| 408 |
(2)(a) Effective
January 1, 1992, each condominium |
| 409 |
association which operates more than two units shall
pay to the |
| 410 |
division an annual fee in the amount of $4 for each
residential |
| 411 |
unit in condominiums operated by the association. If
the fee is |
| 412 |
not paid by March 1, then the association shall be
assessed a |
| 413 |
penalty of 10 percent of the amount due, and the
association |
| 414 |
will not have standing to maintain or defend any
action in the |
| 415 |
courts of this state until the amount due, plus any
penalty, is |
| 416 |
paid. |
| 417 |
(b) All fees
shall be deposited in the Division of Florida |
| 418 |
Land Sales, Condominiums, Homeowners'
Associations, Community |
| 419 |
Association Management, and Mobile Homes Trust
Fund as provided |
| 420 |
by law. |
| 421 |
Section 8. Subsection
(10) is added to section 718.5012, |
| 422 |
Florida Statutes, to read: |
| 423 |
718.5012 Ombudsman;
powers and duties.--The ombudsman |
| 424 |
shall have the powers that are necessary to carry out
the duties |
| 425 |
of his or her office, including the following
specific powers: |
| 426 |
(10) To
monitor and review procedures and disputes |
| 427 |
concerning homeowners' associations. |
| 428 |
Section 9. Paragraph
(b) of subsection (4) of section |
| 429 |
719.104, Florida Statutes, is amended to read: |
| 430 |
719.104 Cooperatives;
access to units; records; financial |
| 431 |
reports; assessments; purchase of leases.-- |
| 432 |
(4) FINANCIAL
REPORT.-- |
| 433 |
(b) The
division shall adopt rules that may require that |
| 434 |
the association deliver to the unit owners, in lieu
of the |
| 435 |
financial report required by this section, a complete
set of |
| 436 |
financial statements for the preceding fiscal year.
The |
| 437 |
financial statements shall be delivered within 90
days following |
| 438 |
the end of the previous fiscal year or annually on
such other |
| 439 |
date as provided in the bylaws. The rules of the
division may |
| 440 |
require that the financial statements be compiled,
reviewed, or |
| 441 |
audited, and the rules shall take into consideration
the |
| 442 |
criteria set forth in s. 719.501(1)(j). The
requirement to have |
| 443 |
the financial statements compiled, reviewed, or
audited does not |
| 444 |
apply to associations if a majority of the voting
interests of |
| 445 |
the association present at a duly called meeting of
the |
| 446 |
association have determined for a fiscal year to
waive this |
| 447 |
requirement. In an association in which turnover of
control by |
| 448 |
the developer has not occurred, the developer may
vote to waive |
| 449 |
the audit requirement for the first 2 years of the
operation of |
| 450 |
the association, after which time waiver of an
applicable audit |
| 451 |
requirement shall be by a majority of voting
interests other |
| 452 |
than the developer. Under no circumstance may an
association or |
| 453 |
board waive its audit for more than 2 consecutive
years. The |
| 454 |
meeting shall be held prior to the end of the fiscal
year, and |
| 455 |
the waiver shall be effective for only one fiscal
year. This |
| 456 |
subsection does not apply to a cooperative that
consists of 50 |
| 457 |
or fewer units. |
| 458 |
Section 10. Subsection
(7) is added to section 719.1055, |
| 459 |
Florida Statutes, to read: |
| 460 |
719.1055 Amendment
of cooperative documents; alteration |
| 461 |
and acquisition of property.-- |
| 462 |
(7) Any
amendment restricting cooperative unit owners' |
| 463 |
rights relating to the rental of units applies
only to unit |
| 464 |
owners who consent to the amendment and unit
owners who purchase |
| 465 |
their units after the effective date of that
amendment. |
| 466 |
Section 11. Section
720.3015, Florida Statutes, is created |
| 467 |
to read: |
| 468 |
720.3015 Powers
and duties of Division of Florida Land |
| 469 |
Sales, Condominiums, Homeowners' Associations,
Community |
| 470 |
Association Management, and Mobile Homes.--The
Division of |
| 471 |
Florida Land Sales, Condominiums, Homeowners'
Associations, |
| 472 |
Community Association Management, and Mobile Homes
of the |
| 473 |
Department of Business and Professional Regulation
in addition |
| 474 |
to other powers and duties prescribed by chapter
498, has the |
| 475 |
power to enforce and ensure compliance with the
provisions of |
| 476 |
this chapter and rules adopted pursuant hereto
relating to |
| 477 |
homeowners' associations as defined in s. 720.301: |
| 478 |
(1) The
division may make necessary public or private |
| 479 |
investigations within or outside this state to
determine whether |
| 480 |
any person or association has violated this
chapter or any rule |
| 481 |
or order hereunder, to aid in the enforcement of
this chapter, |
| 482 |
or to aid in the adoption of rules or forms
hereunder. |
| 483 |
(2) The
division may require or permit any person to file |
| 484 |
a statement in writing, under oath or otherwise,
as the division |
| 485 |
determines, as to the facts and circumstances
concerning a |
| 486 |
matter to be investigated. |
| 487 |
(3) For
the purpose of any investigation under this |
| 488 |
chapter, the division director or any officer or
employee |
| 489 |
designated by the division director may administer
oaths or |
| 490 |
affirmations, subpoena witnesses and compel their
attendance, |
| 491 |
take evidence, and require the production of any
matter which is |
| 492 |
relevant to the investigation, including the
existence, |
| 493 |
description, nature, custody, condition, and
location of any |
| 494 |
books, documents, or other tangible things, and
the identity and |
| 495 |
location of persons having knowledge of relevant
facts or any |
| 496 |
other matter reasonably calculated to lead to the
discovery of |
| 497 |
material evidence. Upon the failure by a person to
obey a |
| 498 |
subpoena or to answer questions propounded by the
investigating |
| 499 |
officer and upon reasonable notice to all persons
affected |
| 500 |
thereby, the division may apply to the circuit
court for an |
| 501 |
order compelling compliance. |
| 502 |
(4) Notwithstanding
any remedies available to homeowners' |
| 503 |
associations, if the division has reasonable cause
to believe |
| 504 |
that a violation of any provision of this chapter
or rule |
| 505 |
adopted pursuant hereto has occurred, the division
may institute |
| 506 |
enforcement proceedings in its own name against
any association, |
| 507 |
officer, or member of the board, or its assignees
or agents, as |
| 508 |
follows: |
| 509 |
(a) The
division may permit a person whose conduct or |
| 510 |
actions may be under investigation to waive formal
proceedings |
| 511 |
and enter into a consent proceeding whereby
orders, rules, or |
| 512 |
letters of censure or warning, whether formal or
informal, may |
| 513 |
be entered against the person. |
| 514 |
(b) The
division may issue an order requiring the |
| 515 |
homeowners' association to cease and desist from
the unlawful |
| 516 |
practice and take such affirmative action as in
the judgment of |
| 517 |
the division will carry out the purposes of this
chapter. |
| 518 |
(c) The
division may bring an action in circuit court on |
| 519 |
behalf of a class of homeowners, lessees, or
purchasers for |
| 520 |
declaratory relief, injunctive relief, or
restitution. |
| 521 |
(d) The
division may impose a civil penalty against an |
| 522 |
association, or its assignee or agent, for any
violation of this |
| 523 |
chapter or a rule adopted pursuant hereto. The
division may |
| 524 |
impose a civil penalty individually against any
officer or board |
| 525 |
member who willfully and knowingly violates a
provision of this |
| 526 |
chapter, a rule adopted pursuant hereto, or a
final order of the |
| 527 |
division. The term "willfully and
knowingly" means that the |
| 528 |
division informed the officer or board member that
his or her |
| 529 |
action or intended action violates this chapter, a
rule adopted |
| 530 |
under this chapter, or a final order of the
division and that |
| 531 |
the officer or board member refused to comply with
the |
| 532 |
requirements of this chapter, a rule adopted under
this chapter, |
| 533 |
or a final order of the division. The division,
prior to |
| 534 |
initiating formal agency action under chapter 120,
shall afford |
| 535 |
the officer or board member an opportunity to
voluntarily comply |
| 536 |
with this chapter, a rule adopted under this
chapter, or a final |
| 537 |
order of the division. An officer or board member
who complies |
| 538 |
within 10 days is not subject to a civil penalty.
A penalty may |
| 539 |
be imposed on the basis of each day of continuing
violation, but |
| 540 |
in no event shall the penalty for any offense
exceed $5,000. By |
| 541 |
January 1, 2006, the division shall adopt, by
rule, penalty |
| 542 |
guidelines applicable to possible violations or to
categories of |
| 543 |
violations of this chapter or rules adopted by the
division. The |
| 544 |
guidelines must specify a meaningful range of
civil penalties |
| 545 |
for each such violation of the statute and rules
and must be |
| 546 |
based upon the harm caused by the violation, the
repetition of |
| 547 |
the violation, and such other factors deemed
relevant by the |
| 548 |
division. For example, the division may consider
whether the |
| 549 |
violations were committed by a association, the
size of the |
| 550 |
association, and other factors. The guidelines
must designate |
| 551 |
the possible mitigating or aggravating
circumstances that |
| 552 |
justify a departure from the range of penalties
provided by the |
| 553 |
rules. It is the legislative intent that minor
violations be |
| 554 |
distinguished from those which endanger the
health, safety, or |
| 555 |
welfare of the homeowners' association members or
other persons |
| 556 |
and that such guidelines provide reasonable and
meaningful |
| 557 |
notice to the public of likely penalties that may
be imposed for |
| 558 |
proscribed conduct. This paragraph does not limit
the ability of |
| 559 |
the division to informally dispose of
administrative actions or |
| 560 |
complaints by stipulation, agreed settlement, or
consent order. |
| 561 |
All amounts collected shall be deposited with the
Chief |
| 562 |
Financial Officer to the credit of the Division of
Florida Land |
| 563 |
Sales, Condominiums, Homeowners' Associations,
Community |
| 564 |
Association Management, and Mobile Homes Trust
Fund. If an |
| 565 |
association fails to pay the civil penalty, the
division shall |
| 566 |
thereupon pursue enforcement in a court of
competent |
| 567 |
jurisdiction, and the order imposing the civil
penalty or the |
| 568 |
cease and desist order will not become effective
until 20 days |
| 569 |
after the date of such order. Any action commenced
by the |
| 570 |
division shall be brought in the county in which
the division |
| 571 |
has its executive offices or in the county in
which the |
| 572 |
violation occurred. |
| 573 |
(5) The
division is authorized to prepare and disseminate |
| 574 |
a prospectus and other information to assist
prospective owners, |
| 575 |
purchasers, lessees, and developers of communities
with |
| 576 |
homeowners' associations in assessing the rights,
privileges, |
| 577 |
and duties pertaining thereto. |
| 578 |
(6) The
division has authority to adopt rules pursuant to |
| 579 |
ss. 120.536(1) and 120.54 to implement and enforce
the |
| 580 |
provisions of this chapter. |
| 581 |
(7) The
division shall establish procedures for providing |
| 582 |
notice to an association when the division is
considering the |
| 583 |
issuance of a declaratory statement with respect
to the |
| 584 |
homeowners' association documents governing such
communities. |
| 585 |
(8) The
division shall furnish each association a copy of |
| 586 |
this act, subsequent changes to this act on an
annual basis, an |
| 587 |
amended version of this act as it becomes
available from the |
| 588 |
Secretary of State's office on a biennial basis,
and the rules |
| 589 |
adopted pursuant thereto on an annual basis. |
| 590 |
(9) The
division shall annually provide each association |
| 591 |
with a summary of declaratory statements and
formal legal |
| 592 |
opinions relating to the operations of homeowners'
associations |
| 593 |
which were rendered by the division during the
previous year. |
| 594 |
(10) The
division shall provide training programs for |
| 595 |
homeowners' association board members. Training
shall be |
| 596 |
mandatory for newly elected board members and
members currently |
| 597 |
serving on a board who have not previously
voluntarily attended |
| 598 |
training. |
| 599 |
(11) The
division shall maintain a toll-free telephone |
| 600 |
number accessible to homeowners' association
members. |
| 601 |
(12) The
division shall develop a program to certify both |
| 602 |
volunteer and paid mediators to provide mediation
of homeowners' |
| 603 |
association disputes. The division shall provide,
upon request, |
| 604 |
a list of such mediators to any association, unit
owner, or |
| 605 |
other participant in arbitration proceedings under
s. 718.1255. |
| 606 |
The division shall include on the list of
volunteer mediators |
| 607 |
only the names of persons who have received at
least 20 hours of |
| 608 |
training in mediation techniques or who have
mediated at least |
| 609 |
20 disputes. In order to become initially
certified by the |
| 610 |
division, paid mediators must be certified by the
Supreme Court |
| 611 |
to mediate court cases in either county or circuit
courts. |
| 612 |
However, the division may adopt, by rule,
additional factors for |
| 613 |
the certification of paid mediators, which factors
must be |
| 614 |
related to experience, education, or background.
Any person |
| 615 |
initially certified as a paid mediator by the
division must, in |
| 616 |
order to remain certified, comply with the factors
or |
| 617 |
requirements imposed by rules adopted by the
division. |
| 618 |
(13) When
a complaint is made, the division shall conduct |
| 619 |
its inquiry with due regard to the interests of
the affected |
| 620 |
parties. Within 30 days after receipt of a
complaint, the |
| 621 |
division shall acknowledge the complaint in
writing and notify |
| 622 |
the complainant whether the complaint is within
the jurisdiction |
| 623 |
of the division and whether additional information
is needed by |
| 624 |
the division from the complainant. The division
shall conduct |
| 625 |
its investigation and shall, within 90 days after
receipt of the |
| 626 |
original complaint or of timely requested
additional |
| 627 |
information, take action upon the complaint.
However, the |
| 628 |
failure to complete the investigation within 90
days does not |
| 629 |
prevent the division from continuing the
investigation, |
| 630 |
accepting or considering evidence obtained or
received after 90 |
| 631 |
days, or taking administrative action if
reasonable cause exists |
| 632 |
to believe that a violation of this chapter or a
rule of the |
| 633 |
division has occurred. If an investigation is not
completed |
| 634 |
within the time limits established in this
subsection, the |
| 635 |
division shall, on a monthly basis, notify the
complainant in |
| 636 |
writing of the status of the investigation. When
reporting its |
| 637 |
action to the complainant, the division shall
inform the |
| 638 |
complainant of any right to a hearing pursuant to
ss. 120.569 |
| 639 |
and 120.57. |
| 640 |
(14) Any
homeowner's association member found to be in |
| 641 |
violation of this chapter shall be notified by the
department by |
| 642 |
certified mail, return receipt requested, at which
time the |
| 643 |
homeowners' association member will have 30 days
in which to |
| 644 |
respond in writing. |
| 645 |
Section 12. Section
720.3071, Florida Statutes, is created |
| 646 |
to read: |
| 647 |
720.3071 Board
member training.--The division shall |
| 648 |
provide training programs for homeowners'
association board |
| 649 |
members and unit owners. Training shall be
mandatory for newly |
| 650 |
elected board members and members currently
serving on a board |
| 651 |
who have not previously voluntarily attended
training. |
| 652 |
Section 13. Subsection
(2) of section 73.073, Florida |
| 653 |
Statutes, is amended to read: |
| 654 |
73.073 Eminent
domain procedure with respect to |
| 655 |
condominium common elements.-- |
| 656 |
(2) With
respect to the exercise of eminent domain or a |
| 657 |
negotiated sale for the purchase or taking of a
portion of the |
| 658 |
common elements of a condominium, the condemning
authority shall |
| 659 |
have the responsibility of contacting the condominium |
| 660 |
association and acquiring the most recent rolls
indicating the |
| 661 |
names of the unit owners or contacting the
appropriate taxing |
| 662 |
authority to obtain the names of the owners of record
on the tax |
| 663 |
rolls. Notification shall thereupon be sent by
certified mail, |
| 664 |
return receipt requested, to the unit owners of
record of the |
| 665 |
condominium units by the condemning authority
indicating the |
| 666 |
intent to purchase or take the required property and
requesting |
| 667 |
a response from the unit owner. The condemning
authority shall |
| 668 |
be responsible for the expense of sending
notification pursuant |
| 669 |
to this section. Such notice shall, at a minimum,
include: |
| 670 |
(a) The name
and address of the condemning authority. |
| 671 |
(b) A
written or visual description of the property. |
| 672 |
(c) The
public purpose for which the property is needed. |
| 673 |
(d) The
appraisal value of the property. |
| 674 |
(e) A clear,
concise statement relating to the unit |
| 675 |
owner's right to object to the taking or appraisal
value and the |
| 676 |
procedures and effects of exercising that right. |
| 677 |
(f) A clear,
concise statement relating to the power of |
| 678 |
the association to convey the property on behalf of
the unit |
| 679 |
owners if no objection to the taking or appraisal
value is |
| 680 |
raised, and the effects of this alternative on the
unit owner. |
| 681 |
|
| 682 |
The Division of Florida Land Sales, Condominiums, Homeowners' |
| 683 |
Associations, Community Association Management,
and Mobile Homes |
| 684 |
of the Department of Business and Professional
Regulation may |
| 685 |
adopt, by rule, a standard form for such notice and
may require |
| 686 |
|