| 5603 |
Section 63. Section
720.501, Florida Statutes, is created |
| 5604 |
to read: |
| 5605 |
720.501 Powers
and Duties of Division of Florida Land |
| 5606 |
Sales, Condominiums,
Homeowners' Associations, and Mobile |
| 5607 |
Homes.-- |
| 5608 |
(1) The
Division of Florida Land Sales, Condominiums, |
| 5609 |
Homeowners' Associations, and
Mobile Homes of the Department of |
| 5610 |
Business and Professional
Regulation, referred to as the |
| 5611 |
"division" in this
part, in addition to other powers and duties |
| 5612 |
prescribed by chapter 498, has
the power to enforce and ensure |
| 5613 |
compliance with the provisions
of this chapter and rules |
| 5614 |
promulgated pursuant hereto
relating to the development, |
| 5615 |
construction, sale, lease,
ownership, operation, and management |
| 5616 |
of residential property. In
performing its duties, the division |
| 5617 |
has the following powers and
duties: |
| 5618 |
(a) The
division may make necessary public or private |
| 5619 |
investigations within or
outside this state to determine whether |
| 5620 |
any person has violated this
chapter or any rule or order |
| 5621 |
hereunder, to aid in the
enforcement of this chapter, or to aid |
| 5622 |
in the adoption of rules or
forms hereunder. |
| 5623 |
(b) The
division may require or permit any person to file |
| 5624 |
a statement in writing, under
oath or otherwise, as the division |
| 5625 |
determines, as to the facts
and circumstances concerning a |
| 5626 |
matter to be investigated. |
| 5627 |
(c) For
the purpose of any investigation under this |
| 5628 |
chapter, the division
director, or any officer or employee |
| 5629 |
designated by the division
director may administer oaths or |
| 5630 |
affirmations, subpoena
witnesses and compel their attendance, |
| 5631 |
take evidence, and require the
production of any matter which is |
| 5632 |
relevant to the investigation,
including the existence, |
| 5633 |
description, nature, custody,
condition, and location of any |
| 5634 |
books, documents, or other
tangible things and the identity and |
| 5635 |
location of persons having
knowledge of relevant facts or any |
| 5636 |
other matter reasonably
calculated to lead to the discovery of |
| 5637 |
material evidence. Upon the
failure by a person to obey a |
| 5638 |
subpoena or to answer
questions propounded by the investigating |
| 5639 |
officer and upon reasonable
notice to all persons affected |
| 5640 |
thereby, the division may
apply to the circuit court for an |
| 5641 |
order compelling compliance. |
| 5642 |
(d) Notwithstanding
any remedies available to lot owners |
| 5643 |
and associations, if the
division has reasonable cause to |
| 5644 |
believe that a violation of
any provision of this chapter or |
| 5645 |
rule promulgated pursuant
hereto has occurred, the division may |
| 5646 |
institute enforcement
proceedings in its own name against any |
| 5647 |
developer, association,
officer, or member of the board of |
| 5648 |
administration, or its
assignees or agents, as follows: |
| 5649 |
1. The
division may permit a person whose conduct or |
| 5650 |
actions may be under
investigation to waive formal proceedings |
| 5651 |
and enter into a consent
proceeding whereby orders, rules, or |
| 5652 |
letters of censure or warning,
whether formal or informal, may |
| 5653 |
be entered against the person. |
| 5654 |
2. The
division may issue an order requiring the |
| 5655 |
developer, association,
officer, or member of the board of |
| 5656 |
administration, or its
assignees or agents, to cease and desist |
| 5657 |
from the unlawful practice and
take such affirmative action as |
| 5658 |
in the judgment of the
division will carry out the purposes of |
| 5659 |
this chapter. Such affirmative
action may include, but is not |
| 5660 |
limited to, an order requiring
a developer to pay moneys |
| 5661 |
determined to be owed to a
homeowners' association. |
| 5662 |
3. The
division may bring an action in circuit court on |
| 5663 |
behalf of a class of lot
owners, lessees, or purchasers for |
| 5664 |
declaratory relief, injunctive
relief, or restitution. |
| 5665 |
4. The
division may impose a civil penalty against a |
| 5666 |
developer or association, or
its assignee or agent for any |
| 5667 |
violation of this chapter or a
rule promulgated pursuant hereto. |
| 5668 |
The division may impose a
civil penalty individually against any |
| 5669 |
officer or board member who
willfully and knowingly violates a |
| 5670 |
provision of this chapter, a
rule adopted pursuant hereto, or a |
| 5671 |
final order of the division.
The term "willfully and knowingly" |
| 5672 |
means that the division
informed the officer or board member |
| 5673 |
that his or her action or
intended action violates this chapter, |
| 5674 |
a rule adopted under this
chapter, or a final order of the |
| 5675 |
division and that the officer
or board member refused to comply |
| 5676 |
with the requirements of this
chapter, a rule adopted under this |
| 5677 |
chapter, or a final order of
the division. The division, prior |
| 5678 |
to initiating formal agency
action under chapter 120, shall |
| 5679 |
afford the officer or board
member an opportunity to voluntarily |
| 5680 |
comply with this chapter, a
rule adopted under this chapter, or |
| 5681 |
a final order of the division.
An officer or board member who |
| 5682 |
complies within 10 days is not
subject to a civil penalty. A |
| 5683 |
penalty may be imposed on the
basis of each day of continuing |
| 5684 |
violation, but in no event
shall the penalty for any offense |
| 5685 |
exceed $5,000. By January 1,
2007, the division shall adopt, by |
| 5686 |
rule, penalty guidelines
applicable to possible violations or to |
| 5687 |
categories of violations of
this chapter or rules adopted by the |
| 5688 |
division. The guidelines must
specify a meaningful range of |
| 5689 |
civil penalties for each such
violation of the statute and rules |
| 5690 |
and must be based upon the
harm caused by the violation, the |
| 5691 |
repetition of the violation,
and upon such other factors deemed |
| 5692 |
relevant by the division. For
example, the division may consider |
| 5693 |
whether the violations were
committed by a developer-controlled |
| 5694 |
or owner-controlled
association, the size of the association, |
| 5695 |
and other factors. The
guidelines must designate the possible |
| 5696 |
mitigating or aggravating
circumstances that justify a departure |
| 5697 |
from the range of penalties
provided by the rules. It is the |
| 5698 |
legislative intent that minor
violations be distinguished from |
| 5699 |
those which endanger the
health, safety, or welfare of residents |
| 5700 |
or other persons and that such
guidelines provide reasonable and |
| 5701 |
meaningful notice to the
public of likely penalties that may be |
| 5702 |
imposed for prescribed
conduct. This subsection does not limit |
| 5703 |
the ability of the division to
informally dispose of |
| 5704 |
administrative actions or
complaints by stipulation, agreed |
| 5705 |
settlement, or consent order.
All amounts collected shall be |
| 5706 |
deposited with the Chief
Financial Officer to the credit of the |
| 5707 |
Division of Florida Land
Sales, Condominiums, Homeowners' |
| 5708 |
Association, and Mobile Homes
Trust Fund. If a developer fails |
| 5709 |
to pay the civil penalty, the
division shall thereupon issue an |
| 5710 |
order directing that such
developer cease and desist from |
| 5711 |
further operation until such
time as the civil penalty is paid, |
| 5712 |
or may pursue enforcement of
the penalty in a court of competent |
| 5713 |
jurisdiction. If an
association fails to pay the civil penalty, |
| 5714 |
the division shall thereupon
pursue enforcement in a court of |
| 5715 |
competent jurisdiction, and
the order imposing the civil penalty |
| 5716 |
or the cease and desist order
will not become effective until 20 |
| 5717 |
days after the date of such
order. Any action commenced by the |
| 5718 |
division shall be brought in
the county in which the division |
| 5719 |
has its executive offices or
in the county where the violation |
| 5720 |
occurred. |
| 5721 |
(e) The
division may prepare and disseminate a prospectus |
| 5722 |
and other information to
assist prospective owners, purchasers, |
| 5723 |
lessees, and developers of
residential communities in assessing |
| 5724 |
the rights, privileges, and
duties pertaining thereto. |
| 5725 |
(f) The
division may adopt rules pursuant to ss.120.536(1) |
| 5726 |
and 120.54 to implement and
enforce the provisions of this |
| 5727 |
chapter. |
| 5728 |
(g) The
division shall establish procedures for providing |
| 5729 |
notice to an association when
the division considers the |
| 5730 |
issuance of a declaratory
statement with respect to the |
| 5731 |
declaration of restrictions or
any related document governing in |
| 5732 |
such residential community. |
| 5733 |
(h) The
division shall furnish each association which pays |
| 5734 |
the fees required by paragraph
(2)(a) a copy of this act, |
| 5735 |
subsequent changes to this act
on an annual basis, an amended |
| 5736 |
version of this act as it
becomes available from the Secretary |
| 5737 |
of State's office and the
rules promulgated pursuant thereto on |
| 5738 |
an annual basis. |
| 5739 |
(i) The
division shall annually provide each association |
| 5740 |
with a summary of declaratory
statements and formal legal |
| 5741 |
opinions relating to the
operations of residential communities |
| 5742 |
which were rendered by the
division during the previous year. |
| 5743 |
(j) The
division shall provide training programs for |
| 5744 |
residential association board
members and lot owners. |
| 5745 |
(k) The
division shall maintain a toll-free telephone |
| 5746 |
number accessible to lot
owners. |
| 5747 |
(l) The
division shall develop a program to certify both |
| 5748 |
volunteer and paid mediators
to provide mediation of disputes. |
| 5749 |
The division shall provide,
upon request, a list of such |
| 5750 |
mediators to any association,
lot owner, or other participant in |
| 5751 |
arbitration proceedings under
s. 720.311 requesting a copy of |
| 5752 |
the list. The division shall
include on the list of volunteer |
| 5753 |
mediators only the names of
persons who have received at least |
| 5754 |
20 hours of training in
mediation techniques or who have |
| 5755 |
mediated at least 20 disputes.
In order to become initially |
| 5756 |
certified by the division,
paid mediators must be certified by |
| 5757 |
the Supreme Court to mediate
court cases in either county or |
| 5758 |
circuit courts. However, the
division may adopt, by rule, |
| 5759 |
additional factors for the
certification of paid mediators, |
| 5760 |
which factors must be related
to experience, education, or |
| 5761 |
background. Any person
initially certified as a paid mediator by |
| 5762 |
the division must, in order to
continue to be certified, comply |
| 5763 |
with the factors or
requirements imposed by rules adopted by the |
| 5764 |
division. |
| 5765 |
(m) When
a complaint is made, the division shall conduct |
| 5766 |
its inquiry with due regard to
the interests of the affected |
| 5767 |
parties. Within 30 days after
receipt of a complaint, the |
| 5768 |
division shall acknowledge the
complaint in writing and notify |
| 5769 |
the complainant whether the
complaint is within the jurisdiction |
| 5770 |
of the division and whether
the division needs additional |
| 5771 |
information from the
complainant. The division shall conduct its |
| 5772 |
investigation and shall take
action upon the complaint within 90 |
| 5773 |
days after receipt of the
original complaint or of timely |
| 5774 |
requested additional
information. However, failure to complete |
| 5775 |
the investigation within 90
days does not prevent the division |
| 5776 |
from continuing the
investigation, accepting or considering |
| 5777 |
evidence obtained or received
after 90 days, or taking |
| 5778 |
administrative action if
reasonable cause exists to believe that |
| 5779 |
a violation of this chapter or
a rule of the division has |
| 5780 |
occurred. If an investigation
is not completed within the time |
| 5781 |
limits established in this
paragraph, the division shall, on a |
| 5782 |
monthly basis, notify the
complainant in writing of the status |
| 5783 |
of the investigation When
reporting its action to the |
| 5784 |
complainant, the division
shall inform the complainant of any |
| 5785 |
right to a hearing pursuant to
ss. 120.569 and 120.57. |
| 5786 |
(2) Effective
January 1, 2008, each homeowners' |
| 5787 |
association that administers
more than 10 residential homes |
| 5788 |
shall pay to the division an
annual fee in the amount of $4 for |
| 5789 |
each residence in communities
administered by the association. |
| 5790 |
If the fee is not paid by
March 1, then the association shall be |
| 5791 |
assessed a penalty of 10
percent of the amount due, and the |
| 5792 |
association will not have
standing to maintain or defend any |
| 5793 |
action in the courts of this
state until the amount due, plus |
| 5794 |
any penalty that is paid. All
fees shall be deposited in the |
| 5795 |
Division of Florida Land
Sales, Condominiums, Homeowners' |
| 5796 |
Association, and Mobile Homes
Trust Fund as provided by law. |
| 5797 |
Section 64. Section
720.505, Florida Statutes, is created |
| 5798 |
to read: |
| 5799 |
720.505 Advisory
council; membership functions.-- |
| 5800 |
(1) There
is created the Advisory Council On Mandated |
| 5801 |
Properties. The council shall
consist of seven appointed |
| 5802 |
members. Two members shall be
appointed by the President of the |
| 5803 |
Senate, two members shall be
appointed by the Speaker of the |
| 5804 |
House of Representatives, and
three members shall be appointed |
| 5805 |
by the Governor. At least one
member that is appointed by the |
| 5806 |
Governor, by the Senate
President and by the Speaker of the |
| 5807 |
House shall be a homeowners'
rights advocate and parcel owner. |
| 5808 |
Members shall be appointed to
2-year terms; however, one of the |
| 5809 |
persons initially appointed by
the Governor, by the President of |
| 5810 |
the Senate, and by the Speaker
of the House of Representatives |
| 5811 |
shall be appointed to a 1-year
term. A member of the division, |
| 5812 |
appointed by the Secretary,
shall serve as an ex-officio |
| 5813 |
nonvoting member. The
selection of council members shall be made |
| 5814 |
in a manner that ensures a
fair and balanced representation from |
| 5815 |
the service-provider sector
and consumer advocates with a |
| 5816 |
substantial public record of
endeavors on behalf of homeowners' |
| 5817 |
rights and consumer interests.
The council shall be located |
| 5818 |
within the division for
administrative purposes. Members of the |
| 5819 |
council shall serve without
compensation but are entitled to |
| 5820 |
receive per diem and travel
expenses pursuant to s. 112.061 |
| 5821 |
while on official business. A
vacancy on the Advisory Council |
| 5822 |
shall be filled in the same
manner as the original appointment. |
| 5823 |
(2) The
functions of the advisory council shall be to: |
| 5824 |
(a) Receive,
from the public, input regarding issues of |
| 5825 |
concern with respect to
mandated communities and recommendations |
| 5826 |
for changes in homeowners'
association laws. The issues that the |
| 5827 |
council shall consider
include, but are not limited to, the |
| 5828 |
rights and responsibilities of
the parcel owners in relation to |
| 5829 |
the rights and
responsibilities of the association. |
| 5830 |
(b) Review,
evaluate, and advise the division concerning |
| 5831 |
revisions and adoption of
rules affecting homeowners' |
| 5832 |
associations. |
| 5833 |
(c) Recommend
improvements, if needed, in the education |
| 5834 |
programs offered by the
division. |
| 5835 |
(3) The
council may elect a chair and vice chair and such |
| 5836 |
other officers as it may deem
advisable. The council shall meet |
| 5837 |
at the call of its chair, at
the request of a majority of its |
| 5838 |
membership, at the request of
the division, or at such times as |
| 5839 |
it may prescribe. A majority
of the members of the council shall |
| 5840 |
constitute a quorum. Council
action may be taken by vote of a |
| 5841 |
majority of the voting members
who are present at a meeting |
| 5842 |
where there is a quorum. |