INTRODUCTION

Created by the Florida Legislature in 2004, the Condominium Advisory Council consists

of seven members. The implementing legislation, Chapter 2004-345, Laws of Florida,

provides that two members shall be appointed by the President of the Senate, two

members by the Speaker of the House of Representatives, and three members by the

Governor. At least one member appointed by the Governor is to represent timeshare

condominiums. The members are appointed for two year terms, except that one of the

members initially appointed by the Governor, the President of the Senate and the

Speaker of the House of Representatives shall each serve one year terms. The

Director of the Division of Florida Land Sales, Condominiums, and Mobile Homes

serves as an ex officio nonvoting member. The Council is located within the Division for

administrative purposes. Carol Windham, Government Analyst I, serves as

administrative support staff for the Council.

The Council meets at the call of the chair and the vice chair and such other officers as it

may deem advisable. A majority of the Council constitutes a quorum and action may be

taken by a vote of a majority of the voting members who are present at a meeting where

there is a quorum.

The functions of the Advisory Council are to:

• Receive, from the public, input regarding issues of concern with respect to condominiums and recommendations for changes in condominium law. The issues that the Council shall consider include, but are not limited to, the rights and responsibilities of the unit owners in relation to the rights and responsibilities of the association.

• Review, evaluate, and advise the Division concerning revisions and adoption of rules affecting condominiums.

• Recommend improvements, if needed, in the education programs offered by the Division.

JOSEPH ADAMS, Attorney -- Appointed by the Speaker of the House

MICHAEL ANDREW, Attorney – Appointed by the Governor

MICHAEL COCHRAN, Director, Division of Florida Land Sales,

Condominiums, and Mobile Homes (ex officio)

PETER DUNBAR, Attorney – Appointed by the Senate President

ROBERT FOWNER, CAM – Appointed by the Speaker of the House

GEORGE GEISLER, Consumer Advocate – Appointed by the Governor

KAREN GOTTLIEB, Consumer Advocate – Appointed by the Governor

PAUL WEAN, Attorney – Appointed by the Senate President

Mr. Adams served as Council Chair during 2005. Mr. Dunbar will serve as Chair during

2006. Mr. Andrew will serve as Vice Chair during 2006. Two former members also

served during 2005; Tom Sparks, CAM, who was appointed by the Speaker of the

House, and Mark Benson, CAM, who was appointed by the Senate President and

served as Vice Chair during 2005.

Consistent with its charge to gather public input, the Council conducted eight public

meetings throughout Florida between January 6, 2005, and December 6, 2005. There

were three meetings conducted in Tallahassee, one in Panama City, one in Orlando,

one in Dania, one in Miami, and one in Ft. Myers. The meetings in Panama City,

Orlando and Ft. Myers had the fewest attendees while the meetings in Miami and Dania

drew the most attendance with approximately 85 and 75 attendees respectively. The

total number of attendees at the meetings was approximately 186. The Council also

heard from Division staff, and reviewed documents provided by the Division, and the

public, including the Division’s regular quarterly report to the Legislature which was

mandated by law in the 2003 session.

By and large the majority of the public input indicates that there are no unique or

emerging issues regarding condominium living or the quality of life in this type of living

arrangement. Indeed, the concerns expressed by the public do not differ substantially

from those expressed to the 1991 Condominium Study Commission created by the

1990 Legislature or to the 1996 Division of Florida Land Sales, Condominiums and

Mobile Homes Study, commissioned by the 1995 Legislature. Consistent with the

Division of Florida Land Sales, Condominiums and Mobile Homes quarterly report to the

Legislature, public testimony from unit owners generally dealt with issues involved with

everyday condominium living. Those who voiced complaints generally had issues with

the way their elections were conducted, access to records, problems working with their

board of directors, or financial issues. However, these complaints viewed in their totality

do not suggest to the Council, as a general matter, that there are serious problems with

respect to the quality of condominium living in Florida. Indeed, as a matter of course,

with over 19,000 residential condominium associations, there will always be those unit

owners who didn’t get access to records in a timely manner, an election which

malfunctions, or a board that doesn’t do a good job managing the condominium’s fiscal

affairs. However, the Council believes such occurrences are the exception and not the

rule. Moreover, as one might logically conclude, the bulk of these concerns emanate

from Broward, Miami-Dade, and Palm Beach Counties, where most of Florida’s

condominium population is located.

More importantly, in the context of the Council’s receipt of the foregoing public

testimony and subsequent discussion, the Council has identified eleven specific

recommendations, some of which will require legislative action. The most important of

these concern enhancement of educational opportunities for unit owners and board

members, the role of the Ombudsman, post turnover jurisdiction of condominiums, and

emergency board powers. In sum, the Division needs to expand educational

opportunities and request necessary appropriations if warranted. The legislature needs

to clarify the role of the Ombudsman and emphasize his or her role as a neutral liaison

rather than an enforcer of condominium law, and provide specific powers rather than the

plenary “all powers necessary” language of the present law. In the aftermath of two

years of unprecedented hurricane seasons, boards need specific statutory emergency

powers to deal with such disasters. Finally, as a matter of policy, the Legislature needs

to consider the continued advisability of having the state involved at all in enforcing the

day to day operations of a residential condominium, regarding non-financial issues,

when the condominium comes under the control of a duly elected unit owner board of

directors. Existing resources within the Division’s Bureau of Compliance could be better

utilized in providing education and alternative dispute resolution instead of investigating

complaints. Having both parties present in a proceeding under the supervision of a

mediator or arbitrator to argue the merits of their claims offers a much better opportunity

for customer satisfaction than the more coercive investigative approach which places

the Division in the position of policeman, judge, and jury.

The Council has taken a position on the following provisions of the laws governing

condominiums. Additionally the Council determined that it should comment on current

legislative proposals that did not originate in the Council.

1.) Emergency Board Powers

     a) The Council finds that in times of catastrophic emergency, the current provisions of

          the Condominium Act are inadequate to guide board members and unit owners.

     b) The Council recommends that emergency powers include the ability to use

          reserves for purposes other they were than intended if so authorized in the bylaws.

     c) The Council recommends approval of emergency powers legislation as attached.

2) Duties of Directors

    a) The Council finds that the current provisions of the Condominium Act are insufficient

         to provide volunteer board members with guidance regarding the standards by

         which they must carry out their duties.

    b) The Council recommends amending chapter 718, F.S. to more clearly reflect the

         duties of directors as attached.

3) Reserves

    a) The Council finds that substantial concerns have been expressed regarding

         reserves in both the conversion and non-conversion settings, and that further

         detailed study is required.

4) Division Educational Programs

    a) The Council finds that existing educational opportunities are good, but limited in the

    current framework. The Council recommends that the Division and the Ombudsman

    explore opportunities to significantly expand their educational mission.

    b) The Council recommends that the Division be granted authority to review and 

        approve education and training programs for board members and unit owners that

        are offered by providers, that the Division shall maintain a current list of approved

        programs, and make the list available in a reasonable and cost effective manner as

        attached.

5) Associations

     a) The Council recommends that DBPR official communications to an association 

     should be officially noted in the minutes during the association’s next board meeting.

6) Criminal complaints

     a) The Council finds that some of the State Attorneys may not have procedures in

     place to handle criminal complaints relating to the unique nature of the operation of

     condominium associations.

     b) The Council encourages pilot programs such as that recommended by

     Representative Robaina, and if any specific legislative recommendations are made,

     the Council will review them at such time.

7) Termination Provisions

     a) The Council finds that current termination provisions in section 718.117, F.S., are

     unworkable in many cases when a termination is appropriate or imminent.

     b) The Council finds that it supports the legislation to be filed by Senator Geller and

     Representative Goodlette in 2006.

8) Maintenance and Defective Construction

     a) The Council finds that the lack of maintenance or defective construction in some

     condominiums has created significant financial hardships for some unit owners, and

     the Council intends to further review and develop meaningful suggestions for

     legislative change.

9) Notice of Liens / Foreclosures

    a) The Council recommends legislation to provide that associations must give a first

    notice of delinquency in assessments before a lien can be filed.

    b) The Council opposes the Siplin Bill, SB 586.

10) Office of the Ombudsman

    a) The Council finds that the statutory structure for the Office of the Ombudsman lacks

    clarity and needs further refinement to specify clearly the duties that the Office of the

    Ombudsman has.

    b) The Council finds that the statutory structure does not adequately coordinate the

    duties and responsibilities of the Ombudsman with other portions of the Act nor does it

    provide due process for individual unit owners and boards in condominium

    associations.

    c) The Council finds that it should consider legislation to provide coordination and

    clarity concerning the duties and responsibilities of the Ombudsman with other portions

    of the Act, provide appropriate due process for parties affected by the Act and provide

    a process to protect the rights of unit owners, boards of directors and other parties

    affected by the Act.

    d) The Council finds that the Ombudsman’s recommended changes to the Act do not

    provide coordination or clarity with other portions of the Act and do not provide for

    appropriate due process to protect the rights of individual unit owners, boards of 

    directors and other parties affected by the Act.

11) Post Turnover Jurisdiction Issues

    a) The Council finds that the current model of addressing disputes between unit

    owners and their boards in the post turnover setting, which primarily relies on the

    Bureau of Compliance, is ineffective and needs to be replaced with alternative

    methods of dispute resolution.

1) The Council finds that it should undertake a future review of the resolution guidelines

and other rules, including election rules.

1) The Council finds that Division should prepare educational program and/or materials

on how associations should deal with catastrophic events.

Public comments were received at the meetings conducted on May 14, 2005, June 25,

2005, August 6, 2005, September 7, 2005, and December 5, 2005. The comments

have been topically organized and presented along with an indication as to the

speaker’s background and the date at which the comments were presented.

Clay Smith 5/14/05, condominium manager. Commented on Section 718.113(2)(a)

regarding material alterations; stated that he can not get a definition of material or

substantial alteration and feels the law should be clarified.

Nathalie Duffau, 6/25/05, (submitted written document to Council). Unit owner at All

Seasons Hotel Condominium; 106 units. In August of 2004, after repair of water tower

above her unit, large pieces of concrete fell from her ceiling. She determined that there

were structural problems that board was aware of; permits had been issued by the

county, but no work was ever done. Wants to force board to take appropriate repair

action.

Nina Iozzi, 6/25/05, Unit owner, 85 units. Felt that the issue she keeps hearing about is

that of buildings not being maintained. Her building has termites; building was tented

several years ago but association did not keep up contract. Stated that local health

departments should be involved in condominium regulation.

Sandra Delgado, 6/25/05, speaking for Lucy Marin (Submitted written document to

Council). Unit owners at Sunset Villas Phase III Condominium, 440 units. Stated that

their association started a project without sharing information to owners; they have

issues with both the quality of work and the change in paint color, they feel the project is

a material alteration which requires approval of unit owners; there was no vote on this

project.

Allen Steive, 9/7/05, unit owner at Baker Towers in Hollywood Beach, 36 units.

Remarked on Senator Geller’s comments on terminating a condominium. He has not

been able to live in his unit since June of 2002. Parts of apartment have been unlivable

due to water intrusion and mold. Complaints to his board went unheeded; he initiated

legal action in 1999. The case has been in civil court but progress is slow. Engineering

firm gave testimony to his board regarding rebar repair; longer time to repair equals

increased deterioration. Needs to be a grievance process for complaints to be heard

quickly and solutions administered quickly. Legislature needs to develop maintenance

requirements and educational requirements. Stated that it is incumbent upon Council to

require reserves and maintenance.

Tony Taylor, 5/14/05, property manager. Spoke regarding Rep. Robaina’s legislation;

stated that he worked to defeat the bill. Felt the bill gave no consideration to other than

owner occupied condos, such as resort condos in Panhandle. Also critical of proposed

$2500 foreclosure rule and board term limits.

Gilbert Toledo, 6/25/05, Condominium in Kendall, 783 units. Asked questions of the

Council regarding assessments, for example, how many assessments are allowed

during one year. Mr. Toledo also asked if assessments could be used to pay other bills

and discussed a past election recall.

Tamaira Perez, 6/25/05, Miramar Gardens HOA in Dade County, 550 homes. Stated

that there are 150 foreclosures in her community; she is in foreclosure for not paying

fees. She purposely permitted herself to go into foreclosure so she could go to court

over her dispute with the association.

Humberto Sanchez, 6/25/05, (Submitted written document to the Council) Mr. Sanchez

expressed concern regarding Council members who represent associations. Stated

that everyone knows that there are tremendous problems except the Division, who

claim that they only receive a handful of complaints. Spoke against predatory

foreclosures – properties are sold without the owner even being aware, no judicial

process.

Marilyn Mommano, 9/7/05, President of Island Club Association, 20 units in Ft

Lauderdale, association is member of CALL. Stated that she was very active in last

year’s legislative session regarding proposed condominium legislation. She is

concerned about differences between small and large condominium associations;

smaller associations could not operate if term limits were imposed. Urged Council to be

careful before recommending term limits. She Stated that it is very important for

assessments to be paid on time; asked that the Council not limit ability of board to go

after people who don’t pay assessments. Also asked Council to make simplified

handbook for condominium law to help associations who self manage and asked for

free educational classes.

Richard DeBoest, 12/5/05, local attorney. Discussed SB 586 by Senator Siplin

(foreclosures). He has filed 500 foreclosures in the last 10 years, only one of which

went to court and was foreclosed. He felt this is an anti-association bill, and would have

devastating effect on small associations. He felt that the current process is working well

and the bill would make it very difficult for associations to collect delinquent

assessments. He felt that association actions do not get to the attorney until the unit

owner has been contacted numerous times.

Susan Cox, 5/14/05, CAM, unit owner and board member from Ft Walton Beach. Stated

that she does not agree with recent proposed legislation; felt that items proposed by

legislature should be in condo documents rather than in the law – for example,

requirements for owner to live in unit 6 months of year in order to qualify to run for

board. Education should not be mandatory via the law, but in documents. Related

history of two complaints filed with Division against her association; stated that one was

a good experience but other appeared to be unresolved.

Joy Carlisle, 5/14/05, unit owner. Stated that she agreed with fighting requirements for

unit owner occupancy in order to run for board. Posed questions regarding insurance;

how to determine proper replacement value for condominium.

Jack Willie, 5/14/05, president of association in Panama City Beach. Asked that

Council be careful regarding making any recommendations for term limits and

requirements for board members to be owner occupied. Felt it would make difficult to

get good board members in resort condos.

Dr. Joyce Starr, 6/25/05, (submitted written document to Council) Member of board of

Bona Vida Condominium Association, 155 units. Wanted to discuss problem of

protecting condo owners’ rights; board abuses arbitration procedures. Asked Council to

insure more effective means of protection against misconduct of board members; abuse

of fiduciary duties, misuse of condo funds; assure that board members are accountable;

abuse of DBPR arbitration procedures by associations. Dr. Starr is involved in litigation

with her association regarding pet dispute.

Luis Cespades, 6/25/05, Unit owner in Windshire Condominium; 387 units. Mr.

Cespades stated that his board is made up of tyrants who do whatever they want.

Board recently applied for 1.4 million loan to patch building (5 year loan); felt that length

of loan is outrageous and he does not know where the money goes.

Robert Libman, 6/25/05, (Submitted written document to Council) Unit owner at Jade

Winds Association, 916 units. Stated that the property is not being kept up to its

potential. Mr. Libman bought a new car and used a loaner from the dealer; parked in

his assigned space; got a pass since loaner had no ID. Association told him he had to

pay $5; Mr. Libman refused to pay to use his own space and his car was then towed

and damaged. Suggested that Council come up with a rule that has some teeth

regarding board members – “once they come into power, it’s impossible to get them

out.”

Valvina Harris, 6/25/05, (through interpreter, Karen Borgenheimer). Unit owner and

board member at Grenard Park Club Condominiums; treasurer there for 5 years.

Stated that board members should first look to their condominium documents; her

association has achieved very good communication with all owners; when the board

“feels helpless” regarding the laws, they go to DBPR for guidance. Stated that she has

heard in this meeting how board members abuse their positions, but felt that her

association and board are well governed. Unit owners and boards can make the laws

work for them.

Frank Hubbell, 6/25/05, Monarch Lakes in Miramar, an HOA with 2,200 homeowners.

Stated that HOAs share lot of same problems as condos; specifically, the board and

management companies. Stated that many homeowners are unhappy with

management company and the same president as when board was first formed (5 yrs).

Mr. Hubbell reported violations to management company; nothing happened because

board told him that they were forming violations committee. Stated that no homeowner

was notified about election of board.

Robert Nato, unit owner, 9/7/05. Stated that he needs to file a complaint. Asked if there

is a limit to assessments that a board can make in one year. Also asked if anything off

the agenda at monthly meetings can be passed. Also had questions regarding board

members attendance at meetings, recall of boards; stated that decisions regarding

audits should be left to unit owners, not the state. Received assistance from

investigators from Bureau of Compliance regarding filing a complaint.

Jeff Shaw, unit owner, 9/7/05. Has experienced problems with “nuclear family” laws –

boards trying to tell unit owners who can live in their units. Fiancée or niece, for

example, cannot stay in units. Suggested legislation that prohibits condominiums or

homeowners' associations from telling people who can live in their homes (as long as it

does not create a problem in terms of living conditions). Also stated that he strongly

supports legislation suggested by Dr Rizzo that would allow action to be taken against

individual directors.

Claudia Torres, 9/7/05, unit owner in West Kendall for 3½ years. Stated that she

purchased her unit with a roof on patio that previous owner had installed; roof was

rotten and falling apart so she repaired. Stated that when she went to sell her unit, the

association would not qualify new buyers until she fixed violations, such as painting the

interior of the fence and removing unapproved patio roof. Stated that she was never

notified of these violations until she tried to close on sale of her unit. Association kept

$2,294 in escrow for violations at closing; she can’t get her money until she performs

repairs.

Harriet Gusberg, 9/7/05, unit owner. Stated that the president of her board doesn’t like

other unit owners. If the president doesn’t like a certain topic of discussion, she ends

conversation. Believes boards should be tested, licensed and regulated by the state;

her condominium documents relieve the directors of any financial responsibility. Felt

that state should pass a law to hold directors responsible. Stated that 2.5 million dollars

has been spent to repair elevators in her building, but elevators still don’t look good or

run properly. The board found that a current member stole $100,000 from association

funds; their attorney said it was best not to do anything about it, as it would be cheaper.

Mike Ettus, 9/7/05, unit owner at Avante Garde Condominiums in Hallandale Beach;

280 units. Stated that everyone making public input has horror stories but states that

there are no remedies. He faces constant assessments; association insists on

replacing a seawall that should be repaired instead, which would save the association

money. Cited documents that state no assessments over a certain percentage can be

made without unit owner votes; board instead is going to break up assessment into

smaller assessments to avoid vote. Board has also stated that it made a mistake and

now assessing $100 extra each month to “catch up”. Stated that he ran for board; other

unit owners stated that they voted for him but board told him that he did not get any

votes; when he asked to see the votes he was denied.

Carmella Ingles, 9/7/05, unit owner. Described her association's board ordering work

without contracts. Owners did not think repaving the parking lot was necessary and

board did it anyway. Did not have signed contract for work to be done; special

assessed and held money for four months. Asked board why they couldn’t use

reserves for sealing parking lot.

Ren Brady, 5/14/05, unit owner in condominium converted from apartments. Suggested

changes to law that would require rules & regulations to be in place prior to developer

conversion.

Ms. Jallele, 6/25/05, Southgrove Plaza, 43 units. Stated that educating the board does

not work. After education, the board does whatever it wants. Stated that the Division

has not resolved her case.

Manuel Blanco, 6/25/05, unit owner in Village of Kings Creek; 1067 units. Felt there is a

lack of enforcement by DBPR. Stated that based on his own experience, the Division

files educational letters, warning letters, and Division ignores emails trying to get

information.

Eric Gallagher, 8/6/05 (submitted written document to Council) HOA member and

member of CCFJ. Has conducted a recall and felt it was easy enough for a layman to

execute. Felt that education will only go so far and asked for more oversight of boards

and protection of homeowners.

Paul Wean, 8/6/05, attorney. Suggested revisions to 718.110(13), F.S.; felt that

“relating to rentals” is too broad; problems with secret vote for unit owner consent.

Supported expansion of the emergency powers provisions in the Condominium Act.

Stated that the atmosphere in the Division regarding investigations has changed for the

better but did not like current method of the investigator conducting an investigation via

phone calls. Also discussed issue of selective/arbitrary enforcement; asked Council to

consider legislative changes regarding this issue. Against mandatory education.

Abe Charrick, 9/7/05, unit owner in Delray Beach, past president of board. Has had

major problems at his condominium with financial issues. Does not agree with how

Chapter 718 is enforced; has made complaints with DBPR; 15 complaints have been

made but nothing has been done except issuing warning letters. Directors took reserve

funds for other than intended use; spent without authorization of unit owners. Described

other complaints filed regarding collection of monthly maintenance fees, access to

records, unit owners denied right to speak at meetings, association's failure to provide

annual report. Stated that Division takes too long for resolution; called the Division’s

toll-free number on today's date and it rang for an hour with no answer.

Mark Hanna, 9/7/05, unit owner at Hallmark condominium, 375 units in Hollywood. In

June of 2004, a unit owner was refused access to roster of unit owners. Dispute with

board regarding the release of email addresses. Filed a compliant with DPBR; felt that

staff at Division has been competent and helpful. Stated that he later filed a petition for

arbitration and won; association has filed an appeal in court. Felt there is no incentive

for association to comply with the law. Case still in court; association stated that they

will continue to appeal. Felt there should be no statutory cap on damages as long as

records are not provided.

Representative Robaina discussed Mr. Hanna’s issue regarding access to records and

asked Council what should happen to attorneys who give advice to associations that is

against the law. Stated that the current law is without teeth; attorneys say “DPBR has

no power, do what you want, don’t listen to the Ombudsman.” Stated that he is going to

meet with Member Cochran regarding giving Division more authority. Described a

meeting tomorrow in Miami Beach of local municipalities who are developing a

proposed ordinance to create requirements for licensing of all property management

companies in their city. Discussed the pilot state attorneys' program to address criminal

activity in condominiums. Local police departments' economic crimes Division can

assign people to be trained and deal with condominium criminal complaints. Asked

Council to recommend funding for pilot program.

Senator Geller stated that attorneys sometimes give advice that is not followed. Asked

the Council to look at reserves under current law; would like statutory reserves that

cannot be waived. If there are no reserves, unit owners will find they are being

frequently assessed. Buildings are being improperly maintained. Regarding

terminations; a Hurricane Andrew damaged condominium took 8 years to be dissolved.

Does not support term limits; views condominiums as mini-local governments.

Regarding elections; if election is properly run, then results must be abided by. If the

elections are not fair and unit owners cannot organize, that is a problem. He passed

legislation to give election challenges a priority. Stated that we must make sure that

elections are conducted in a fair and honest manner. Heard many people complain that

board is violating law, violating documents and nothing can be done. Not sure he

agrees with increasing fines – because unit owners are the ones who will pay. Does not

support making it easy to fine individual board members – because it would then be

hard to find people to serve on boards.

John Hickey, 9/7/05, asked questions regarding purpose of the Council; asked that the

Council recommend changes in statute to add teeth to enforcement. Board not

following bylaws regarding assessments. Asked for penalties for directors knowingly

violating bylaws. Also asked if homeowners' associations can be combined into current

condominium law.

Jerry Melvin, 5/14/05, Lobbyist for Cyber Citizens for Justice. Discussed the Office of

the Ombudsman and was very supportive of the functions of that office. Stated that lack

of education of officers and unit owners creates most problems. Suggested the Division

work with community colleges to offer educational programs.

Member Sparks, 5/14/05, brought up CAI’s condominium classes and solicited

comments from any audience members who have attended courses: Geraldine

Bratcher said she had attended class several times and thought they were excellent,

more should attend. Bart Kennedy felt classes were invaluable and also felt the

discussions and interaction with others is invaluable. J.L. Franklin thought classes were

great. Laurie Smith complimented Ray Neuman of Becker Poliakoff as a CAI instructor.

She also praised Peter Dunbar’s book, “Condominium Concepts” and stated that a copy

is given to each new board member at her condo.

Gary Kitchen, 8/6/05, unit owner and member of the Board of the Space Coast

Condominiums Association (SCCA). Made comments regarding lack of communication

between unit owners and associations; suggested that associations join a website

program he is involved with as an easy way to disseminate information to unit owners

Harry Charles, 8/6/05, President of SCCA. Stated that SCCA currently has over 250

associations representing 18,000 units. Felt that some problems are caused by

unreasonable unit owners and others are easily solved by tools that are available in

current law, such as the recall process. Discussed association’s responsibility to be

prepared for disasters and subsequent repairs. Stated that a Division CD-Rom of

educational material would be helpful to unit owners; CAI courses are good but should

be expanded. Against mandatory education for board members.

Jerry Melvin, 8/6/05, Lobbyist for Cyber Citizens for Justice (CCFJ). Expressed CCFJ’s

desire for greater education for board members and unit owners. Requested expanding

Council’s duties to include HOAs. CCFJ would like to see a website where questions

are posted as an ongoing Q&A. Also discussed Panhandle Area Education Consortium

(PAEC), which sells receivers ($90) to any group or association; the association can

then receive educational programs on a 24-hour basis. CCFJ has a group studying

educational issues in order to come up with suggestions for additional subject matter.

Glen Cook, 12/5/05, unit owner. Asked for more education for board members, has

called the Ombudsman and filed a complaint with the Division. He was complimentary

of Investigator Jeff Ewaldt. He stated that many owners are not Florida residents and

are not involved, more education is also needed for unit owners. He stated that the CAI

courses are worthwhile, and the Division should update the budget and reserve manual

to address common elements and limited common elements. He indicated that

associations do not attract educated board members. He also felt that CAMS should

report directly to the association and should advise only.

Clifford Jordan, 12/5/05, board member at Seven Lakes Association, Inc. Stated that

the Council was doing a great job of zeroing in on the problems. He stated that he took

four of the CAI courses and then ran for the board. He indicated that the CAI courses

are very good, and that he went to Tallahassee for session last year. He felt that the

first year as a board member is a learning experience and was worried about term

limits, could not imagine one year term limits. He also stated that they shouldn’t let a

few problems cause legislative changes.

John Scott, 5/14/05, former condominium manager, retired. Suggested change to

Chapter 718 regarding voting by proxy. Expressed concern that proxies that are not

returned count as a “no” vote, instead of not counting at all. Felt that required

percentages should be based on actual votes, not membership interests. Suggested

change in law regarding required 100% approval for termination; would like to see a

lower percentage. Member Dunbar commented that there has been legislation to

change to 80% vote or decision by a judge; did not pass but will be attempted again.

Raj Prakash, 6/25/05, Treasurer of board for 5 years in Kendall at Heron at Hammocks;

260 units. Addressed role of Ombudsman; requested that Ombudsman be held

accountable for his actions. Dr. Rizzo asked that the ballots for their election be sent to

his office instead of the management company. The board felt this was inappropriate

and decided not to comply. The Ombudsman then sent out letter to all unit owners

stating that the board refused to send him the ballots and this created a clear

appearance of impropriety. Felt that concept of Ombudsman is great but if office runs

unchecked it will destroy concept of unpaid mini-governments.

Angela Gonzalez, 6/25/05, unit owner, 98 units. Stated that she felt the function of the

Council and the Ombudsman is to encourage owners to be educated. She has

attended several CAI courses and felt they there were excellent; but thought that they

do not reach many people. Ms. Gonzalez asked that more education and materials be

provided in Spanish.

Nelson Martinez, 6/25/05, (Submitted written document to Council) Unit owner. Mr.

Martinez stated that Division is useless. His building had 15 violations; felt the

Ombudsman is good but his office needs more money. Mr. Martinez expressed

concerns regarding election process; felt there should be a tougher process to ensure

that unit owners are filling out ballots. In his condominium, board members filled out

ballots.

L. Fields, 6/25/05, stated that he had questions about the recall provisions in the Florida

Administrative Code that the Council should address. For example, the rule does not

state how the ballot should handled - oral or written ballot, and does not state who will

have charge of written ballots after vote – who tallies, etc.

Robert Henry, 6/25/05, Pelican Point at Villages HOA, 456 homes, President for 8

years, also master association for 8 years. Lives in HOA, not a condominium, but came

to meeting because he felt that the laws are going to be changed. Stated that Rep.

Robaina and Jan Bergmann only bring up bad issues, not good associations without

problems. Disagreed with 1 year term limits; felt that nothing would get done because

of need to retrain new members.

Dorothy Ballard, 9/7/05, unit owner in small association, 25 units. Thinks the elections

are dishonest and corrupt. The same 3 directors have been elected the last 5 years

because they are majority unit owners and vote for themselves. One person owns 16

units and votes himself as president.

Member Gottlieb, 9/7/05, read written comments submitted by Gail Sharpe from Heron

at Hammocks; Ms. Sharpe thanked the legislature for creating the Office of the

Ombudsman and thanked Representative Robaina for new laws. Ombudsman

provided election monitoring at her association.

Marie Peterson, 9/7/05, (Submitted written materials to Council) CPA whose practice

includes two condo associations and four homeowners associations; former auditor.

Asked that Council not think of CPAs as the legislature has in the past; CPAs are not

auditors. Stated that in her experience, an audit does not help the owners of an

association. Requests that Council look into legislation that takes decision-making

process of type of independent evaluation away from owners. Discussed her

suggestions for alternatives to mandated audits or reviews; also suggested that CPAs

can help boards with their reserve funding, insurance premiums and coverage.

Representative Robaina commented on Ms. Peterson’s remarks on audits and

reserves. Stated that his legislation was in response to boards that waive audits or do

audits themselves. Also, felt that state attorneys offices need audits in order to

prosecute their criminal cases.

Chair Adams stated that an audit can create a false sense of security that funds are not

being stolen and asked what Ms. Peterson would recommend. Ms. Peterson stated that

associations should obtain "special purpose" audits for the state attorney to look at

specific items; similar to a forensic audit.

Don Jordan, 5/14/05, unit owner. Clarified purpose of Council and requested that the

agenda and other documents contain the Council’s email address and other contact

information.

A.R. Obregon, 6/25/05, (Submitted written document to Council). Unit owner in three

different communities; does not want to give actual names. Felt that during legislative

session, the average person cannot go to lobby in Tallahassee, but the special interests

send their lobbyists. Current laws are not efficient to protect condominium owners.

Hank Cofield, 6/25/05, unit owner at Venetian Condominium; 340 residential units, 41

commercial units. Three member board, made up of two commercial members and one

residential member. The association owns seven commercial units, so the remaining

34 commercial units control the building. Counsel for the association has advised that

the documents take precedence over the statute. Asked if his documents are

superseded by statute because of their date – they were created in 1994. Member

Dunbar suggested that Mr. Cofield file a request for a declaratory statement from the

Division regarding the documents/statutes.

Rosio Sullivan, 6/25/05, unit owner at Castle Beach Club; 573 units. Stated that she is

learning about condominium laws. Ms. Sullivan asked who appointed the Council

members; stated that she wanted to believe that Council will be doing something. She

has met with the building inspector regarding fire hazards in her building for over two

years; the building has been in receivership for over a year. No communication

between agencies; different entities knew about the problem over the years. Ms.

Sullivan stated that unit owners don’t find out about problems, fines, county inspections.

.

Craig Garvin; 6/25/05, unit owner at Bay Vista Condominium, 27 units. At last board

meeting, requested mediation regarding disputed fees and was told no. Asked if the

Council was put into place so that he could go to mediation. Chair Adams stated that

was not the purpose of this Council; however, the law provides that the issue of fees is

not subject to mediation or arbitration.

Bob Cupina, 8/6/05, unit owner in association with 145 units; member of SCCA.

Currently in a dispute with condo association. Has current complaint with Division;

suggests that it be mandatory for association to notify unit owners of any complaint.

Felt that arbitration is too expensive for many unit owners to pursue.

Susan Barry, 9/7/05, new president of small association; 12 units. Asked how to obtain

full set of original condominium documents. Asked if it would be important to update

their documents from 1965. Asked how to obtain updates on condominium law.

Bob Von Walde, 12/5/05, unit owner in association with 81 units. Stated that reserve

funding should be mandatory and that half of the damage from hurricane was not

covered by insurance. He felt that it would be a good idea to vest boards with authority

to take emergency action. He indicated that the foreclosure bill was a bad idea and

would be a burden on everyone else to pay. He was also opposed to residency

requirements for board members, and felt that mandatory board education was a bad

idea as no one will serve.

Ross Pritchett, 5/14/05, would like to see HOAs governed by the Division. Stated that

he feels there is no recourse for owners other than court. (Member Cochran made

statement regarding the Division’s HOA Mediation and Arbitration Program).

Katherine Sajdak, 9/7/05, CAM, manages two homeowners’ associations totaling 1300

homes; also Supreme Court certified mediator. Stated that she was under the

impression that Council was making proposals regarding other types of associations.

Felt that mediation is a useful tool; unfortunately, state was ill prepared for new

homeowners’ association mediation program. She has submitted petitions and has

been waiting since May or June for a mediator to be assigned; process is not serving

homeowner. Asked Council to survey more homeowners and condominium owners

instead of a disgruntled minority who does not understand the law. Felt that majority of

owners want to live in their communities as the rules state; also asked for help in

enforcing rules.

Mike Good, 5/14/05, unit owner at Villa del Sol, 87 units. Described history of his

association as adversarial; hoped that the Ombudsman can assist when his office is

better prepared and organized. Stated that the staff in the Ombudsman's Office couldn’t

answer his questions. Asked that the Office of the Ombudsman mission be more

clearly defined and that the Ombudsman gain the knowledge to answer unit owner

questions. Described problems at his association regarding post-hurricane repair

issues; association did not have plan to repair roofs. He is still working to get copies of

records regarding insurance of association; stated that association did not take action

after the storm to protect damaged units from further water damage. Unit owner (Mr.

Good’s father) does have insurance for unit not covered by association’s master policy.

Member Dunbar recommended that Mr. Good contact the Treasurer’s storm line for

assistance with his insurance company.

Gerald Zeligman, 9/7/05, unit owner at Wynmoor Condominiums in Coconut Creek,

10,000 residents. Stated that he is an advocate for animals. Felt that many residents

are afraid to speak out against their associations regarding changing pet rules; one

resident was told to get rid of her two animals even though she was a long time

resident. Described problems regarding vague documents with regards to pet

restrictions and penalties regarding violating pet rules. Asked Council to change pet

rules and the way pet owners are treated.

Maida Genser, 9/7/05, Lakes of Carriage Hills in Tamarac, 530 units. Stated that she

has experienced problems regarding pet issues; felt that many senior residents do not

want to sign petitions or support changes to rules; many are afraid of losing pets and

many hide their pets. She believes that the Americans with Disabilities Act already

includes animals as “emotional support”; felt that many people do not know their rights.

Mata Geinser, 6/25/05, does not want to mention her condominium’s name; she is

representing a group called “Citizens for Pets in Condos”. Described her suggestions

for laws allowing for pets in condos; prosecute unit owners who fail to clean up, tear

screens, or disturb the peace in other ways.

Judy Honey, 5/14/05, stated that her association is having problems deciding on

appropriate reserve funding. She feels the reserves should be increased as the condo is

aging. The majority of unit owners have voted to waive. Suggestion from Council that

unit owners could set aside private funds to cover any future special assessments.

Representative Robaina, 6/25/05, requested consideration of the Council regarding

the following issues:

• Condominium conversions; new laws that govern local municipalities regarding

inspections – firewalls, building codes, and how the developer turns conversion over

to new board.

• Regulation of property management companies.

• The Office of the Ombudsman; asked for a way to clarify his duties and give the

Ombudsman additional responsibilities and teeth; would also like to see cooperation

with DBPR.

• Give the Division power to fine people.

• Unit owners need more mediation; felt mediation is not popular with law firms but a

better way to resolve problems.

• Satellite office in Ft Lauderdale for the Ombudsman.

• Recommendations for emergency evacuation procedures for condominiums.

• Conflicts of board members doing business with family members.

• Recalls; boards and/or law firms that try to block recalls.

• Possible conflict of interest between DBPR employees and law firms.

• Education; CAI provides a good product; but asked Council to find alternatives.

• Support for pilot program with state attorneys for pursuing criminal condominium

cases.

• Better regulation of CAMs.

• Sovereign immunity of board members; no immunity if someone maliciously uses

their power.

• Foreclosures; asked Council for suggestions regarding predatory foreclosures.

• Law firms that protect boards and harass unit owners.

• Asked that members not allow their positions to carry out personal agendas. Said,

in response to question from Chair Adams, that he has seen no evidence of

personal agendas on the Council.

Colleen Donahue, the Ombudsman’s Administrative Assistant attended the May 14,

2005, meeting and answered questions from the Council regarding the Office of the

Ombudsman. The Council also discussed the recommendations from the Ombudsman

and had the following comments:

Regarding his suggested requirement that proposed amendments to documents be sent

via certified mail to all unit owners; Member Dunbar stated that there are unit owners

who can not receive certified mail (out of country, for example) and that people who

work during the day often can’t pick up certified mail. Member Sparks pointed out the

cost that would be involved for the association. Member Gottlieb stated that it was a

good idea.

Regarding the Ombudsman’s suggestion to take away association’s ability to waive

financial reporting, member Dunbar indicated that this would not be sensitive to smaller

communities.

Regarding the recommendations for reconstruction of condominium: Member Dunbar

expressed concern that association be held to 60 days timeline following a disaster, and

the Ombudsman’s suggestion includes requirement to hire an architect.

Regarding the recommendation for unit owner inquiries, response sent via certified mail:

Member Dunbar pointed out again that not all unit owners live in the United States and

are able to receive certified mail. Discussion ensued regarding limitation on number of

unit owner inquiries. Chair Adams stated that this limitation was put into the statute

because of unit owners disrupting operations of community in abusing requests. Ms.

Donahue stated that the Ombudsman would address this issue.

Regarding the recommendation for Board meetings required that “No action shall be

taken” without unit owner vote. Member Dunbar indicated that this limits the abilities of

management to operate the association.

Regarding the recommendation for requiring special assessment notices include “cost &

breakdown” member Dunbar pointed out that often meetings are held to decide

between bids for projects, so no cost would be finalized for the notice. Member Dunbar:

good idea, but poorly worded.

Regarding the recommendation for term limits and holding offices: Member Sparks

stated that term limits “throws” good officers away. Member Dunbar suggested

changing to read “consecutive” terms, otherwise would create problems for smaller communities – who would serve on board of 4 of 5 unit communities? This would force

small communities to hire directors.

Regarding the recommendation to eliminate the right to opt out of the statutes regarding

the election process: Member Dunbar stated that this would penalize smaller

communities. Chair Adams stated that some communities opt out of statute yet

substantially comply in their documents.

Regarding the recommendation for unit owners’ right to vote on items at annual

meeting: Ms. Donahue stated that this is an avenue to get items on agenda by unit

owners. Member Dunbar stated that could be a productive method for unit owners.

Regarding the recommendation to remove the vote to provide no reserves: Chair

Adams asked Ms. Donahue why the Ombudsman would make this recommendation.

Ms. Donahue did not know. Member Dunbar stated that not all communities are the

same.

Regarding the recommendation to add the term “basic” to statutory provisions

addressing cable tv: Chair Adams expressed concern over the differing definition of

“basic” cable, depending on the provider. Member Dunbar stated that this could

possibly eliminate the “community” channel used by some associations to post their

notices.

Regarding the recommendation to eliminate the requirement that payments are applied

to attorney’s fees first: Member Andrew expressed concern of association’s ability to

find attorney to assist in debt collection if attorney is paid last.

Regarding the recommendation that liens should not be filed until after 30 days of unit

owner being served: Chair Adams stated that the idea merits further discussion;

however, if someone does not accept service then time and additional costs will accrue.

Suggested instead to state after certified mail to last known address. Member Dunbar

stated again that not every unit owner has ability to receive certified mail, but that he

likes idea of providing notice to last known address.

Regarding the recommendation that would remove automatic renewal of contracts:

Chair Adams stated that he thought it was a good idea.

Regarding the recommendation to section 718.5012, FS, that the Division defer to the

Ombudsman’s findings: Chair Adams expressed concern regarding due process.

Member Andrew stated that the Council needs clarification as to whether the

Ombudsman is offering legal advice or not; and if so, the Council needs to address the

liability issue involved. Asked if it is appropriate for the Ombudsman to be offering legal

advice.

Section 1. Paragraph (a) of ss. 718.111(1) is amended to read as follows:

(a) The operation of the condominium shall be by the association, which must be a

Florida corporation for profit or a Florida corporation not for profit. However, any

association which was in existence on January 1, 1977, need not be incorporated. The

owners of units shall be shareholders or members of the association. The officers and

directors of the association have a fiduciary relationship to the unit owners as set forth

in s.718.1122. It is the intent of the Legislature that nothing in this paragraph shall be

construed as providing for or removing a requirement of a fiduciary relationship between

any manager employed by the association and the unit owners. An officer, director, or

manager may not solicit, offer to accept, or accept any thing or service of value for

which consideration has not been provided for his or her own benefit or that of his or her

immediate family, from any person providing or proposing to provide goods or services

to the association. Any such officer, director, or manager who knowingly so solicits,

offers to accept, or accepts any thing or service of value is subject to a civil penalty

pursuant to s. 718.501(1)(d). However, this paragraph does not prohibit an officer,

director, or manager from accepting services or items received in connection with trade

fairs or education programs. An association may operate more than one condominium.

Section 2. s. 718.1122 is created to read as follows and existing paragraphs are relettered

(1) An officer or director shall discharge his or her duties as an officer or director in the

following manner, including his or her duties as a member of a committee:

(a) In good faith;

(b) With the care an ordinarily prudent person in a like position would exercise under

similar circumstances; and

(c) In a manner he or she reasonably believes to be in the best interests of the

association.

(2) In discharging his or her duties, he or she may rely on information, opinions,

reports, or statements, including financial statements and other financial data, if

prepared or presented by:

(a) One or more officers or employees of the corporation whom the officer or director

reasonably believes to be reliable and competent in the matters presented;

(b) Legal counsel, public accountants, agencies having jurisdiction of the subject

matter, or other persons as to matters the officer or director reasonably believes are

within the persons' professional or expert competence; or

(c) A committee of or appointed by the board of directors of which he or she is not a

member if the officer or director reasonably believes the committee merits his or her

confidence.

(3) An officer or director is not acting in good faith if he or she has knowledge

concerning the matter in question that makes reliance otherwise permitted by paragraph

(2) unwarranted.

(4) An officer or director is not liable for any action taken as a officer or director, or any

failure to take any action, if he or she performed the duties of his or her office in

compliance with this section.

(5) An officer or director is not personally liable for monetary damages to any person for

any statement, vote, decision, or failure to take an action by an officer or director,

unless:

(a) The officer or director breached or failed to perform his or her duties as an officer or

director; and

(b) The officer's or director's breach of, or failure to perform, his or her duties

constitutes:

1. A violation of the criminal law, unless the officer or director had reasonable cause to

believe his or her conduct was lawful or had no reasonable cause to believe his or her

conduct was unlawful. A judgment or other final adjudication against an officer or

director in any criminal proceeding for violation of the criminal law estops that officer or

director from contesting the fact that his or her breach, or failure to perform, constitutes

a violation of the criminal law, but does not estop the officer or director from establishing

that he or she had reasonable cause to believe that his or her conduct was lawful or had

no reasonable cause to believe that his or her conduct was unlawful;

2. A transaction from which the officer or director derived an improper personal benefit,

either directly or indirectly; or

3. Recklessness or an act or omission which was committed in bad faith or with

malicious purpose or in a manner exhibiting wanton and willful disregard of human

rights, safety, or property.

(c) For the purposes of this section, the term:

"Recklessness" means the acting, or omission to act, in conscious disregard of a risk:

1. Known, or so obvious that it should have been known, to the officer or director; and

2. Known to the officer or director, or so obvious that it should have been known, to be

so great as to make it highly probable that harm would follow from such action or

omission.

Paragraph (1) (j) of Section 718.501 is amended to read as follows:

(j) The Division shall provide training programs for condominium association

board members and unit owners. The Division shall have the authority to review and

approve education and training programs for board members and unit owners offered

by providers and shall maintain a current list of approved programs and providers and

shall make such list available to board members and unit owners in a reasonable and

cost-effective manner.

HB 1593 2005

On page 1, line 15, through page 4, line 104,

Remove from the bill all of said lines and insert:

Section 1. Section 718.1265, Florida Statutes, is created to read:

718.1265 Association emergency powers. –

(1) To the extent allowed by law and unless specifically prohibited by the

declaration, the articles, or the bylaws of an association, the association may, in

response to a state of emergency declared in accordance with s. 252.36(2) or a

mandatory evacuation order issued by civil or law enforcement authorities, for the locale

in which the condominium is located, exercise the power to:

(a) Conduct board meetings and membership meetings with notice given as is

practicable. Such notice may be given in any practicable manner, including publication,

radio, U.S. Mail, the Internet, public service announcements, conspicuous posting on

the condominium property or an other means the board deems reasonable under the circumstances. Notice of board decisions may be communicated as provided in this

paragraph;

(b) Cancel and reschedule any association meeting;

(c) Name as assistant officers persons who are not directors, which assistant

officers shall have the same authority as the executive officers to whom they are

assistant during the state of emergency, to accommodate the incapacity or unavailability

of any officer of the association;

(d) Relocate the principal office or designate alternative principal offices.

(e) Enter into agreements with local counties and municipalities to assist

counties and municipalities with debris removal.

(2) Consistent with the standards of s. 617.0830:

(a) Implement a disaster plan, including, but not limited to shutting down or off

elevators, electricity, water, sewer, security systems, or air conditioners;

(b) Declare any portion of the condominium property unavailable for entry or

occupancy by unit owners, family members, tenants, guests, agents, or invitees in order

to protect the health, safety, or welfare of such persons;

(c) Order the evacuation of the condominium property in the event of a

mandatory evacuation order in the locale in which the condominium is located. Should

any unit owner or other occupant of a condominium fail or refuse to evacuate the

condominium property upon such an order, the association shall be immune from

liability or injury to persons or property arising from such failure or refusal.

28

(d) Determine whether the condominium property can be safely inhabited or

occupied. However, such determination is not conclusive as to any determination of

habitability pursuant to the declaration.

(3) To the extent allowed by law and unless specifically prohibited by the

declaration, the articles, or the bylaws of an association, and consistent with the

provisions of s. 617.0830, the association may, in response to damage caused by an

event for which a state of emergency is declared in accordance with s. 252.36(2) in the

locale in which the condominium is located, exercise the power to:

(a) Mitigate further damage, including taking action to contract for the removal

of debris, to prevent or mitigate the spread of fungus, including but not limited to mold,

or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or

other fixtures on or within the condominium property, even if the unit owner is obligated

by the declaration or law to insure or replace those fixtures and to remove personal

property from a unit;

(b) Contract, on behalf of unit owners with unit owners responsible for

reimbursing the association, for items or services for which the owners are otherwise

responsible, but which may be necessary to prevent further damage. Without limitation,

such items or services may include the drying of units, boarding of broken windows or

doors, and replacement of damaged air conditioners or air handlers to provide climate

control in the units or other portions of the property;

(c) Levy special assessments; or

(d) Borrow money and pledge association assets as collateral to fund

emergency repairs and carry out the duties of the association when operating funds are

insufficient, without unit owner approval. This paragraph does not limit the general

authority of the association to borrow money, subject to such restrictions as are

contained in the declaration, articles, or bylaws.

(4) The special powers authorized under this section by the association shall

be limited to that time reasonably necessary to protect the health, safety and welfare of

the association, the unit owners, their family members, tenants, guests, agents or

invitees, and reasonably necessary to mitigate further damage and make emergency

repairs.

Insert new subsection 718.112(2)(f)5. is created to read:

In addition to reserves required by this section, the association may establish a

reserve category for uninsured casualty losses, based upon such formula as to the

board deems appropriate.

Insert new paragraph (e) in subsection 718,112(2)(m)(3) to read:

(3) OPTIONAL PROVISIONS.--The bylaws as originally recorded or as amended under

the procedures provided therein may provide for the following:

(a) A method of adopting and amending administrative rules and regulations governing

the details of the operation and use of the common elements.

(b) Restrictions on and requirements for the use, maintenance, and appearance of the

units and the use of the common elements.

(c) Provisions for giving notice by electronic transmission in a manner authorized by

law of meetings of the board of directors and committees and of annual and

special meetings of the members.

(d) A method for allowing the use of existing reserve funds to meet the expenses

related to declared emergencies pursuant to section 718.1265.

(d e) Other provisions which are not inconsistent with this chapter or with the

declaration, as may be desired.