"YOU ARE LEAVING THE AMERICAN ZONE!”

An Opinion By Jan Bergemann
President, Cyber Citizens For Justice, Inc.

Published February 26, 2007

"State laws that regulate homeowners associations lack criminal sanctions," Palm Beach County Assistant State Attorney Preston Mighdoll was quoted as saying in a recent article (Suit says Boca Rio funds misspent) about embezzlement in a homeowners' association.

It seems that we need laws dictating every little detail of association life – even prosecuting clear embezzlement of funds seems not really to be in the books. Assistant State Attorney Preston Mighdoll's quote went into even more detail: “State laws that regulate homeowners associations lack criminal sanctions, making financial crimes hard to prosecute. We don't have statutes that address fraud in condominium and homeowner associations!"

According to this prosecutor, it's obvious that embezzlement is not really embezzlement if it takes place in an association to the detriment of unsuspecting owners. Considering Mighdoll’s statement, it seems that law enforcement doesn’t see embezzlement as a criminal offense – if it takes place in an association.

Maybe we need specific statutes to make it very clear that board members who embezzle and willfully waste their neighbors’ money will be criminally prosecuted, punished with a lengthy jail sentence!

Do we need detailed laws for every little thing that takes place in our associations? Is our criminal law invalid within the borders of our association, meaning owners living in associations are losing the protection of our laws – laws we pay taxes to uphold?

Actually, that statement leaves me really baffled -- and it made me really curious. I checked Florida Statutes FS 718 (Condo Act) and FS 720 (HOAs) and found that there are really no criminal sanctions mentioned at all! According to Mighdoll’s statement, that would mean that crimes in associations couldn’t be prosecuted -- no matter what? I surely couldn't find any criminal sanctions for murder in these statutes either!

I was always under the impression that theft is theft, embezzlement is embezzlement and -- murder is murder? But what do I know? I never studied law!

Because under Mighdoll's theory, somebody could go to the next board meeting, shoot the president -- and get away with it since the crime took place in a HOA over an association dispute -- and the HOA statutes lack criminal sanctions?

[Disclaimer: "The above idea was just thrown in for purposes of discussion! Please don't try it in your association!"]

I know that judges in Arizona obviously didn't agree with Mighdoll's theory. A former homeowner, who had lost his home to foreclosure over an association dispute, shot and killed board members and severely injured others. Even if there are no criminal sanctions to be found in the Arizona HOA statutes, judges sentenced him to death for his crime! The sentence is under appeal. Maybe the defense attorney should use Mighdoll's theory?

Or was the statement of the Assistant State Attorney just an attempt to cover up for the unwillingness of prosecutors and law enforcement officers to get involved in crimes pertaining to our communities?

If that's the case, we owners should all get a big refund on all the property taxes we paid over the years. Since our law enforcement agencies don't feel obligated to investigate and prosecute crimes committed in mandatory associations, we surely shouldn't be forced to pay the full tax share for law enforcement!

Maybe we should ask prosecutors and law enforcement officers unwilling to go after criminals in our associations to resign? We should replace them with officials willing to go after ALL criminals -- inside and outside of our associations?

According to Mighdoll's statement, the claim, made by homeowners’ activists for quite a few years, is really true: “If you enter a mandatory association YOU ARE LEAVING THE AMERICAN ZONE!”

THIS SURELY HAS TO CHANGE!