As chair of a select committee appointed
by the governor and legislative leadership, then–state Rep.
Julio Robaina of South Miami traveled around the state
before the 2008 legislative session.
He talked to constituents about the most pressing issues of
the day. And when he got to South Florida, he got an earful
about condominium safety.
“The lack of maintenance for buildings by boards of
directors emerged as a huge concern,” said Robaina, a Miami
native and former mayor of South Miami who'd been monitoring
disputes between condo owners and their boards for years.
That statewide conversation propelled him to file
legislation creating a five-year structural inspection of
condominiums over three stories tall to go hand in hand with
a "reserve study" to determine how much to set aside for
repairs and maintenance to avoid extraordinary assessments.
“We added that provision, which required structural
inspections of the entire building, the roof, elevators,
parking garage, all aspects of the construction of the
condominium,” Robaina said in an interview with USA TODAY
Network-Florida.
The bill was passed unanimously by both the House and
Senate, and was signed into law by then-Gov. Charlie Crist.
Two years later, lawyers and lobbyists for the condominium
associations, property managers and developers pushed back.
They said the law placed a financial burden on condominium
unit owners, especially elderly ones on fixed incomes.
They convinced lawmakers to repeal the five-year inspection
provision Robaina had worked so hard to get into law in the
first place, according to Robaina and others involved in the
process.
But it was done in a way that Robaina didn’t see coming: It
was snuck into the back of a 102-page, comprehensive
building safety bill (HB 663) that had nothing to do with
condominium associations.
“They buried that language ... It was a shameful tactic,”
said Robaina, who voted for the building safety bill without
realizing he also voted to repeal his own inspection rule.
“Why would anybody vote against a bill when it’s about
building safety?”
The sudden and under-the-radar repeal of a five-year
inspection for condominium statute is an example of how
powerful special interests with lots of money can — and
often do — influence policymaking at the highest levels of
state government.
"That’s the way business gets done in Tallahassee," said Ben
Wilcox, research director for Integrity Florida, a
nonpartisan government watchdog. “There is so much political
influence being applied to the legislative process (that)
this is the end result: You see this type of stealth
legislation that doesn’t even really get a full public
vetting when it happens.
“So many decisions get made without putting the best
interests of the public at the forefront ... They’re not
looking to make condominiums safe," Wilcox said.
Unfortunately, the unit owners themselves suffer because
they don't peddle much influence at the Legislature, said
Eric Glazer, a condominium attorney who's been practicing
for more than 30 years in South Florida and runs a condo law
blog.
“The powers that be very much dictate what happens in this
state when it comes to (condominium) association law,"
Glazer said.
Now, after last month's collapse of a 40-year-old beachside
condominium tower in Surfside that hadn't been inspected
until three years ago and has so far claimed 97 lives, state
lawmakers are reviewing state law to see what changes need
to made to prevent another disaster.
Everything is on the table, legislative leaders have said.
Some ideas being discussed include mandatory and more
frequent building inspections, requiring minimum reserve
funds for maintenance, and fully funding condominium owner
education programs.
"It's important that we gather all the facts and it's
certainly something that we don't want to leave anything off
the table," House Speaker-designate Paul Renner, R-Palm
Coast, said during a recent news conference.
"We will look at the facts and try to determine why this
happened," he added. "I think it's important we align the
solutions with the actual problems that occurred."
Legislative give and take
The legislative process is often a blunt matter of give and
take, as lawmakers horse trade with each other to get their
agendas across the finish line, Glazer said: "It's 'I’ll
give you this if you give me that.' "
A combination of industry interests and state agencies have
a lot of say on the bill drafting process, making requests
to add language before the bill rolls off the printer.
"There’s so much pressure coming from the industry to cut
costs and increase profits and that sort of thing that a lot
of times the public’s interest isn’t at the top," Wilcox
said. "It is not the first priority.”
Robaina's 2008 bill (HB 995) became the vehicle for an
87-page comprehensive condominium association omnibus
promoted by the House Safety and Security Council that
included dozens of changes to the state's condominium law.
One of the more significant changes was the removal of
maintenance oversight by the Department of Business and
Professional Regulation. That recommendation came from
Michael Cochran, then director of what was then called the
Division of Florida Land Sales, Condominium Law and Mobile
Homes, Robaina said.
"The division director had a lot of influence with the
Legislature then," Robaina said.
Now an attorney in private practice, Cochran did not return
a call and email seeking comment.
The 2008 bill also added language that says once a
condominium is turned over from the developer to the
association, "the division shall only have jurisdiction to
investigate complaints related to financial issues,
elections, and unit owner access to association records...."
The bill also includes opt-out language allowing a majority
of the unit members present at a meeting to vote to delay
the inspection, which was supposed to help the person
preparing financial reports for the reserve study.
A balloon sculpture adorns the Surfside Wall of Hope and
Memorial as workers search the site of the collapsed
Champlain Towers South building in Surfside, Fla. July 11,
2021.
The bill added language that the study should provide
information to determine if the reserves are "being funded
at a level sufficient to prevent the need for a special
assessment and, if not, the amount of assessments necessary
to bring the reserves up to the level necessary to avoid a
special assessment."
But the statute also provides an opt-out for the boards to
delay the reserve study for a year. The clause, what Glazer
calls a "kick-the-can" option for the condo boards, has been
on the books for as long as he can remember.
The problem, Glazer said, is that fully funding a reserve to
cover expensive maintenance and structural problems could
double the monthly association fee. And nobody wants to
raise fees on themselves and their neighbors.
"The Legislature gave them just enough rope to hang
themselves," Glazer said.
A reversal of repeal
The repeal of the five-year inspection clause was the result
of a lot of pushback from condominium associations and their
lawyers, said Travis Moore, a lobbyist for the Community
Associations Institute.
"It would have cost associations a lot of money," Moore
said.
And those costs would have been passed onto the unit owners,
many of whom are on fixed incomes.
Moore said he didn't know Rep. Gary Aubuchon, a Cape Coral
developer and Realtor who sponsored the massive building
safety bill that contained the repeal language. But when he
asked around, he was told the bill was improving the
building code, which made the five-year inspection mandate
duplicative.
As of Friday, Aubuchon had not responded to requests for
comment.
Nobody at DBPR was voicing opposition, Moore said, and his
institute remained neutral: "We never pushed, supported or
opposed it."
That was the last he heard about the inspection mandate
until three weeks ago, after the June 24 collapse of the
12-story, 36-unit Champlain Tower South in Surfside.
One of the issues now being raised is that there is no state
requirement to reinspect a condominium building once it's
occupied. Miami-Dade and Broward are the only counties that
require inspections, and that's only once a building hits 40
years of age.
"I think all of that will get looked at," Moore said. "If
the state doesn't do something I think you are going to see
a lot more local governments do something similar to
Miami-Dade and Broward."
'Potential serious lapses in the law'
The tragedy in Surfside has led to a call from all sides to
examine the state's condominium law.
"We are examining condominium laws and other laws applying
to the governance of condominium associations to see if
there are suggestions for changes to minimize or prevent the
kind of tragedy that occurred at Champlain Tower South,"
said Bill Sklar, who is heading up a newly appointed condo
law task force of the Florida Bar.
The task force will make recommendations to the governor and
legislature in the next three months, Sklar said, to
coincide with legislative pre-session hearings that begin in
September.
The Surfside disaster "pointed out potential serious lapses
in the law," Sklar said.
The Champlain Tower South collapse is the first of its kind
in Florida. According to Sklar, it is the third worst
building collapse in the United States, after the World
Trade Center on 9/11 and the Oklahoma City bombing, both of
which were terrorist attacks.
These are huge, statewide questions that come with a sense
of urgency, he said, noting a recent Wall Street Journal
report noted there are 918,000 condominium units across
Florida that are more than 30 years old — with 2 million
people living in them.
One thing that jumps out is the lack of a statewide uniform
standard for inspecting condominiums, he said. "There is no
baseline requirement, no uniform criteria for inspections,
no units of time," Sklar said.
There is no standard for when inspections should start, how
frequently they should be conducted, who should do them,
what qualifications inspectors should have or the scope of
the inspections themselves, he said.
"Nobody is suggesting we write new laws just to write new
laws," Sklar said.
But the task force will examine the 157-page state
condominium law to see "what defects and what lapses need to
be filled to prevent this tragedy from occurring again,"
Sklar said.