Senate Bill 2816

Relating to Community Associations

S2816    GENERAL BILL by Villalobos ( H 1373, Compare CS/H 0433, CS/S 0902)
Community Associations [EPCC]; provides disclosure requirements for certain contracts for initial sale of parcel of real property & each contract for initial sale of residential unit; requires notice of proposed amendments to be provided to unit owners; authorizes board to install hurricane protection that complies with applicable building
code; revises powers & duties of homeowners' associations, etc. Amends FS. EFFECTIVE DATE: 07/01/2007.
03/05/07 SENATE Filed
03/20/07 SENATE Introduced, referred to Regulated Industries; Community
                  Affairs; Judiciary; General Government Appropriations
                  -SJ 00196
04/11/07 SENATE On Committee agenda-- Regulated Industries, 04/16/07, 1:30
                  pm, 110-S

SB 2816  --  DBPR: Division of Florida Land Sales, Condominiums, Homeowners' Associations, and Mobile Homes.

Advisory Council On Mandated Properties

295      Section 1.  Subsection (2) of section 20.165, Florida
296 Statutes, is amended to read:
297      20.165  Department of Business and Professional
298 Regulation.--There is created a Department of Business and
299 Professional Regulation.
300      (2)  The following divisions of the Department of Business
301 and Professional Regulation are established:
302      (a)  Division of Administration.
303      (b)  Division of Alcoholic Beverages and Tobacco.
304      (c)  Division of Certified Public Accounting.
305      1.  The director of the division shall be appointed by the
306 secretary of the department, subject to approval by a majority
307 of the Board of Accountancy.
308      2.  The offices of the division shall be located in
309 Gainesville.
310      (d)  Division of Florida Land Sales, Condominiums,
311 Homeowners' Associations, and Mobile Homes.
312      (e)  Division of Hotels and Restaurants.
313      (f)  Division of Mandated Properties.
314      (g)(f)  Division of Pari-mutuel Wagering.
315      (h)(g)  Division of Professions.
316      (i)(h)  Division of Real Estate.
317      1.  The director of the division shall be appointed by the
318 secretary of the department, subject to approval by a majority
319 of the Florida Real Estate Commission.
320      2.  The offices of the division shall be located in
321 Orlando.
322      (j)(i)  Division of Regulation.
323      (k)(j)  Division of Technology, Licensure, and Testing.
324      Section 2.  Subsection (2) of section 73.073, Florida
325 Statutes, is amended to read:
326      73.073  Eminent domain procedure with respect to
327 condominium common elements.--
328      (2)  With respect to the exercise of eminent domain or a
329 negotiated sale for the purchase or taking of a portion of the
330 common elements of a condominium, the condemning authority shall
331 have the responsibility of contacting the condominium
332 association and acquiring the most recent rolls indicating the
333 names of the unit owners or contacting the appropriate taxing
334 authority to obtain the names of the owners of record on the tax
335 rolls. Notification shall thereupon be sent by certified mail,
336 return receipt requested, to the unit owners of record of the
337 condominium units by the condemning authority indicating the
338 intent to purchase or take the required property and requesting
339 a response from the unit owner. The condemning authority shall
340 be responsible for the expense of sending notification pursuant
341 to this section. Such notice shall, at a minimum, include:
342      (a)  The name and address of the condemning authority.
343      (b)  A written or visual description of the property.
344      (c)  The public purpose for which the property is needed.
345      (d)  The appraisal value of the property.
346      (e)  A clear, concise statement relating to the unit
347 owner's right to object to the taking or appraisal value and the
348 procedures and effects of exercising that right.
349      (f)  A clear, concise statement relating to the power of
350 the association to convey the property on behalf of the unit
351 owners if no objection to the taking or appraisal value is
352 raised, and the effects of this alternative on the unit owner.
354 The Division of Florida Land Sales, Condominiums, Homeowners'
355 Associations, and Mobile Homes of the Department of Business and
356 Professional Regulation may adopt, by rule, a standard form for
357 such notice and may require the notice to include any additional
358 relevant information.
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.

CODING: Words stricken are deleted; words underlined are additions