| 1 | Representative Robaina offered the following: |
| 2 |
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| 3 | Amendment (with directory and title amendments) |
| 4 | Between lines 278 and 279, insert: |
| 5 | (h) Amendment of bylaws.-- |
| 6 | 1. The method by which the bylaws may be amended |
| 7 | consistent with the provisions of this chapter shall be stated. |
| 8 | If the bylaws fail to provide a method of amendment, the bylaws |
| 9 | may be amended if the amendment is approved by the owners of not |
| 10 | less than two-thirds of the voting interests. |
| 11 | 2. No bylaw shall be revised or amended by reference to |
| 12 | its title or number only. Proposals to amend existing bylaws |
| 13 | shall contain the full text of the bylaws to be amended; new |
| 14 | words shall be inserted in the text underlined, and words to be |
| 15 | deleted shall be lined through with hyphens. However, if the |
| 16 | proposed change is so extensive that this procedure would |
| 17 | hinder, rather than assist, the understanding of the proposed |
| 18 | amendment, it is not necessary to use underlining and hyphens as |
| 19 | indicators of words added or deleted, but, instead, a notation |
| 20 | must be inserted immediately preceding the proposed amendment in |
| 21 | substantially the following language: "Substantial rewording of |
| 22 | bylaw. See bylaw _____ for present text." |
| 23 | 3. Nonmaterial errors or omissions in the bylaw process |
| 24 | will not invalidate an otherwise properly promulgated amendment. |
| 25 | 4. If the bylaws provide for amendment by the board of |
| 26 | administration, no bylaw may be amended unless it is heard and |
| 27 | noticed at two consecutive meetings of the board of |
| 28 | administration that are at least 1 week apart. |
| 29 | Section 2. Subsection (11) is added to section 718.116, |
| 30 | Florida Statutes, to read: |
| 31 | 718.116 Assessments; liability; lien and priority; |
| 32 | interest; collection.-- |
| 33 | (11) During the pendency of any foreclosure action of a |
| 34 | condominium unit, if the unit is occupied by a tenant and the |
| 35 | unit owner is delinquent in the payment of regular assessments, |
| 36 | the association may demand that the tenant pay to the |
| 37 | association the future regular assessments related to the |
| 38 | condominium unit. The demand shall be continuing in nature, and |
| 39 | upon demand the tenant shall continue to pay the regular |
| 40 | assessments to the association until the association releases |
| 41 | the tenant or the tenant discontinues tenancy in the unit. The |
| 42 | association shall mail written notice to the unit owner of the |
| 43 | association's demand that the tenant pay regular assessments to |
| 44 | the association. The tenant shall not be liable for increases in |
| 45 | the amount of the regular assessment due unless the tenant was |
| 46 | reasonably notified of the increase prior to the day that the |
| 47 | rent is due. The tenant shall be given a credit against rents |
| 48 | due to the unit owner in the amount of assessments paid to the |
| 49 | association. The association shall, upon request, provide the |
| 50 | tenant with written receipts for payments made. The association |
| 51 | may issue notices under s. 83.56 and may sue for eviction under |
| 52 | ss. 83.59-83.625 as if the association were a landlord under |
| 53 | part II of chapter 83 should the tenant fail to pay an |
| 54 | assessment. However, the association shall not otherwise be |
| 55 | considered a landlord under chapter 83 and shall specifically |
| 56 | not have any duty under s. 83.51. The tenant shall not, by |
| 57 | virtue of payment of assessments, have any of the rights of a |
| 58 | unit owner to vote in any election or to examine the books and |
| 59 | records of the association. A court may supersede the effect of |
| 60 | this subsection by appointing a receiver. |
| 61 | Section 3. Subsection (1) of section 718.501, Florida |
| 62 | Statutes, is amended to read: |
| 63 | 718.501 Authority, responsibility, and duties of Division |
| 64 | of Florida Condominiums, Timeshares, and Mobile Homes.-- |
| 65 | (1) The Division of Florida Condominiums, Timeshares, and |
| 66 | Mobile Homes of the Department of Business and Professional |
| 67 | Regulation, referred to as the "division" in this part, has the |
| 68 | power to enforce and ensure compliance with the provisions of |
| 69 | this chapter and rules relating to the development, |
| 70 | construction, sale, lease, ownership, operation, and management |
| 71 | of residential condominium units. In performing its duties, the |
| 72 | division has complete jurisdiction to investigate complaints and |
| 73 | enforce compliance with the provisions of this chapter with |
| 74 | respect to associations that are still under developer control |
| 75 | and complaints against developers involving improper turnover or |
| 76 | failure to turnover, pursuant to s. 718.301. However, after |
| 77 | turnover has occurred, the division shall only have jurisdiction |
| 78 | to investigate complaints related to financial issues, failure |
| 79 | to maintain common elements, elections, and unit owner access to |
| 80 | association records pursuant to s. 718.111(12). |
| 81 | (a)1. The division may make necessary public or private |
| 82 | investigations within or outside this state to determine whether |
| 83 | any person has violated this chapter or any rule or order |
| 84 | hereunder, to aid in the enforcement of this chapter, or to aid |
| 85 | in the adoption of rules or forms hereunder. |
| 86 | 2. The division may submit any official written report, |
| 87 | worksheet, or other related paper, or a duly certified copy |
| 88 | thereof, compiled, prepared, drafted, or otherwise made by and |
| 89 | duly authenticated by a financial examiner or analyst to be |
| 90 | admitted as competent evidence in any hearing in which the |
| 91 | financial examiner or analyst is available for cross-examination |
| 92 | and attests under oath that such documents were prepared as a |
| 93 | result of an examination or inspection conducted pursuant to |
| 94 | this chapter. |
| 95 | (b) The division may require or permit any person to file |
| 96 | a statement in writing, under oath or otherwise, as the division |
| 97 | determines, as to the facts and circumstances concerning a |
| 98 | matter to be investigated. |
| 99 | (c) For the purpose of any investigation under this |
| 100 | chapter, the division director or any officer or employee |
| 101 | designated by the division director may administer oaths or |
| 102 | affirmations, subpoena witnesses and compel their attendance, |
| 103 | take evidence, and require the production of any matter which is |
| 104 | relevant to the investigation, including the existence, |
| 105 | description, nature, custody, condition, and location of any |
| 106 | books, documents, or other tangible things and the identity and |
| 107 | location of persons having knowledge of relevant facts or any |
| 108 | other matter reasonably calculated to lead to the discovery of |
| 109 | material evidence. Upon the failure by a person to obey a |
| 110 | subpoena or to answer questions propounded by the investigating |
| 111 | officer and upon reasonable notice to all persons affected |
| 112 | thereby, the division may apply to the circuit court for an |
| 113 | order compelling compliance. |
| 114 | (d) Notwithstanding any remedies available to unit owners |
| 115 | and associations, if the division has reasonable cause to |
| 116 | believe that a violation of any provision of this chapter or |
| 117 | related rule has occurred, the division may institute |
| 118 | enforcement proceedings in its own name against any developer, |
| 119 | association, officer, or member of the board of administration, |
| 120 | or its assignees or agents, as follows: |
| 121 | 1. The division may permit a person whose conduct or |
| 122 | actions may be under investigation to waive formal proceedings |
| 123 | and enter into a consent proceeding whereby orders, rules, or |
| 124 | letters of censure or warning, whether formal or informal, may |
| 125 | be entered against the person. |
| 126 | 2. The division may issue an order requiring the |
| 127 | developer, association, developer-designated officer, or |
| 128 | developer-designated member of the board of administration, |
| 129 | developer-designated assignees or agents, community association |
| 130 | manager, or community association management firm to cease and |
| 131 | desist from the unlawful practice and take such affirmative |
| 132 | action as in the judgment of the division will carry out the |
| 133 | purposes of this chapter. If the division finds that a |
| 134 | developer, association, officer, or member of the board of |
| 135 | administration, or its assignees or agents, is violating or is |
| 136 | about to violate any provision of this chapter, any rule adopted |
| 137 | or order issued by the division, or any written agreement |
| 138 | entered into with the division, and presents an immediate danger |
| 139 | to the public requiring an immediate final order, it may issue |
| 140 | an emergency cease and desist order reciting with particularity |
| 141 | the facts underlying such findings. The emergency cease and |
| 142 | desist order is effective for 90 days. If the division begins |
| 143 | nonemergency cease and desist proceedings, the emergency cease |
| 144 | and desist order remains effective until the conclusion of the |
| 145 | proceedings under ss. 120.569 and 120.57. |
| 146 | 3. If a developer fails to pay any restitution determined |
| 147 | by the division to be owed, plus any accrued interest at the |
| 148 | highest rate permitted by law, within 30 days after expiration |
| 149 | of any appellate time period of a final order requiring payment |
| 150 | of restitution or the conclusion of any appeal thereof, |
| 151 | whichever is later, the division shall bring an action in |
| 152 | circuit or county court on behalf of any association, class of |
| 153 | unit owners, lessees, or purchasers for restitution, declaratory |
| 154 | relief, injunctive relief, or any other available remedy. The |
| 155 | division may also temporarily revoke its acceptance of the |
| 156 | filing for the developer to which the restitution relates until |
| 157 | payment of restitution is made. |
| 158 | 4. The division may petition the court for the appointment |
| 159 | of a receiver or conservator. If appointed, the receiver or |
| 160 | conservator may take action to implement the court order to |
| 161 | ensure the performance of the order and to remedy any breach |
| 162 | thereof. In addition to all other means provided by law for the |
| 163 | enforcement of an injunction or temporary restraining order, the |
| 164 | circuit court may impound or sequester the property of a party |
| 165 | defendant, including books, papers, documents, and related |
| 166 | records, and allow the examination and use of the property by |
| 167 | the division and a court-appointed receiver or conservator. |
| 168 | 5. The division may apply to the circuit court for an |
| 169 | order of restitution whereby the defendant in an action brought |
| 170 | pursuant to subparagraph 4. shall be ordered to make restitution |
| 171 | of those sums shown by the division to have been obtained by the |
| 172 | defendant in violation of this chapter. Such restitution shall, |
| 173 | at the option of the court, be payable to the conservator or |
| 174 | receiver appointed pursuant to subparagraph 4. or directly to |
| 175 | the persons whose funds or assets were obtained in violation of |
| 176 | this chapter. |
| 177 | 6. The division may impose a civil penalty against a |
| 178 | developer or association, or its assignee or agent, for any |
| 179 | violation of this chapter or a rule adopted under this chapter. |
| 180 | The division may impose a civil penalty individually against any |
| 181 | officer or board member who willfully and knowingly violates a |
| 182 | provision of this chapter, adopted rule, or a final order of the |
| 183 | division; may order the removal of such individual as an officer |
| 184 | or from the board of administration or as an officer of the |
| 185 | association; and may prohibit such individual from serving as an |
| 186 | officer or on the board of a community association for a period |
| 187 | of time. The term "willfully and knowingly" means that the |
| 188 | division informed the officer or board member that his or her |
| 189 | action or intended action violates this chapter, a rule adopted |
| 190 | under this chapter, or a final order of the division and that |
| 191 | the officer or board member refused to comply with the |
| 192 | requirements of this chapter, a rule adopted under this chapter, |
| 193 | or a final order of the division. The division, prior to |
| 194 | initiating formal agency action under chapter 120, shall afford |
| 195 | the officer or board member an opportunity to voluntarily comply |
| 196 | with this chapter, a rule adopted under this chapter, or a final |
| 197 | order of the division. An officer or board member who complies |
| 198 | within 10 days is not subject to a civil penalty. A penalty may |
| 199 | be imposed on the basis of each day of continuing violation, but |
| 200 | in no event shall the penalty for any offense exceed $5,000. By |
| 201 | January 1, 1998, the division shall adopt, by rule, penalty |
| 202 | guidelines applicable to possible violations or to categories of |
| 203 | violations of this chapter or rules adopted by the division. The |
| 204 | guidelines must specify a meaningful range of civil penalties |
| 205 | for each such violation of the statute and rules and must be |
| 206 | based upon the harm caused by the violation, the repetition of |
| 207 | the violation, and upon such other factors deemed relevant by |
| 208 | the division. For example, the division may consider whether the |
| 209 | violations were committed by a developer or owner-controlled |
| 210 | association, the size of the association, and other factors. The |
| 211 | guidelines must designate the possible mitigating or aggravating |
| 212 | circumstances that justify a departure from the range of |
| 213 | penalties provided by the rules. It is the legislative intent |
| 214 | that minor violations be distinguished from those which endanger |
| 215 | the health, safety, or welfare of the condominium residents or |
| 216 | other persons and that such guidelines provide reasonable and |
| 217 | meaningful notice to the public of likely penalties that may be |
| 218 | imposed for proscribed conduct. This subsection does not limit |
| 219 | the ability of the division to informally dispose of |
| 220 | administrative actions or complaints by stipulation, agreed |
| 221 | settlement, or consent order. All amounts collected shall be |
| 222 | deposited with the Chief Financial Officer to the credit of the |
| 223 | Division of Florida Condominiums, Timeshares, and Mobile Homes |
| 224 | Trust Fund. If a developer fails to pay the civil penalty and |
| 225 | the amount deemed to be owed to the association, the division |
| 226 | shall issue an order directing that such developer cease and |
| 227 | desist from further operation until such time as the civil |
| 228 | penalty is paid or may pursue enforcement of the penalty in a |
| 229 | court of competent jurisdiction. If an association fails to pay |
| 230 | the civil penalty, the division shall pursue enforcement in a |
| 231 | court of competent jurisdiction, and the order imposing the |
| 232 | civil penalty or the cease and desist order will not become |
| 233 | effective until 20 days after the date of such order. Any action |
| 234 | commenced by the division shall be brought in the county in |
| 235 | which the division has its executive offices or in the county |
| 236 | where the violation occurred. |
| 237 | 7. If a unit owner presents the division with proof that |
| 238 | the unit owner has requested access to official records in |
| 239 | writing by certified mail, and that after 10 days the unit owner |
| 240 | again made the same request for access to official records in |
| 241 | writing by certified mail, and that more than 10 days has |
| 242 | elapsed since the second request and the association has still |
| 243 | failed or refused to provide access to official records as |
| 244 | required by this chapter, the division shall issue a subpoena |
| 245 | requiring production of the requested records where the records |
| 246 | are kept pursuant to s. 718.112. |
| 247 | 8. In addition to subparagraph 6., the division may seek |
| 248 | the imposition of a civil penalty through the circuit court for |
| 249 | any violation for which the division may issue a notice to show |
| 250 | cause under paragraph (r). The civil penalty shall be at least |
| 251 | $500 but no more than $5,000 for each violation. The court may |
| 252 | also award to the prevailing party court costs and reasonable |
| 253 | attorney's fees and, if the division prevails, may also award |
| 254 | reasonable costs of investigation. |
| 255 | 9. Notwithstanding subparagraph 6., when the division |
| 256 | finds that an officer or director has intentionally falsified |
| 257 | association records with the intent to conceal material facts |
| 258 | from the division, the board, or unit owners, the division shall |
| 259 | prohibit the officer or director from acting as an officer or |
| 260 | director of any condominium, cooperative, or homeowners' |
| 261 | association for at least 1 year. |
| 262 | 10. When the division finds that any person has derived an |
| 263 | improper personal benefit from a condominium association, the |
| 264 | division shall order the person to pay restitution to the |
| 265 | association and shall order the person to pay to the division |
| 266 | the costs of investigation and prosecution. |
| 267 | (e) The division may prepare and disseminate a prospectus |
| 268 | and other information to assist prospective owners, purchasers, |
| 269 | lessees, and developers of residential condominiums in assessing |
| 270 | the rights, privileges, and duties pertaining thereto. |
| 271 | (f) The division has authority to adopt rules pursuant to |
| 272 | ss. 120.536(1) and 120.54 to implement and enforce the |
| 273 | provisions of this chapter. |
| 274 | (g) The division shall establish procedures for providing |
| 275 | notice to an association and the developer during the period |
| 276 | where the developer controls the association when the division |
| 277 | is considering the issuance of a declaratory statement with |
| 278 | respect to the declaration of condominium or any related |
| 279 | document governing in such condominium community. |
| 280 | (h) The division shall furnish each association which pays |
| 281 | the fees required by paragraph (2)(a) a copy of this act, |
| 282 | subsequent changes to this act on an annual basis, an amended |
| 283 | version of this act as it becomes available from the Secretary |
| 284 | of State's office on a biennial basis, and the rules adopted |
| 285 | thereto on an annual basis. |
| 286 | (i) The division shall annually provide each association |
| 287 | with a summary of declaratory statements and formal legal |
| 288 | opinions relating to the operations of condominiums which were |
| 289 | rendered by the division during the previous year. |
| 290 | (j) The division shall provide training and educational |
| 291 | programs for condominium association board members and unit |
| 292 | owners. The training may, in the division's discretion, include |
| 293 | web-based electronic media, and live training and seminars in |
| 294 | various locations throughout the state. The division shall have |
| 295 | the authority to review and approve education and training |
| 296 | programs for board members and unit owners offered by providers |
| 297 | and shall maintain a current list of approved programs and |
| 298 | providers and shall make such list available to board members |
| 299 | and unit owners in a reasonable and cost-effective manner. |
| 300 | (k) The division shall maintain a toll-free telephone |
| 301 | number accessible to condominium unit owners. |
| 302 | (l) The division shall develop a program to certify both |
| 303 | volunteer and paid mediators to provide mediation of condominium |
| 304 | disputes. The division shall provide, upon request, a list of |
| 305 | such mediators to any association, unit owner, or other |
| 306 | participant in arbitration proceedings under s. 718.1255 |
| 307 | requesting a copy of the list. The division shall include on the |
| 308 | list of volunteer mediators only the names of persons who have |
| 309 | received at least 20 hours of training in mediation techniques |
| 310 | or who have mediated at least 20 disputes. In order to become |
| 311 | initially certified by the division, paid mediators must be |
| 312 | certified by the Supreme Court to mediate court cases in county |
| 313 | or circuit courts. However, the division may adopt, by rule, |
| 314 | additional factors for the certification of paid mediators, |
| 315 | which factors must be related to experience, education, or |
| 316 | background. Any person initially certified as a paid mediator by |
| 317 | the division must, in order to continue to be certified, comply |
| 318 | with the factors or requirements imposed by rules adopted by the |
| 319 | division. |
| 320 | (m) When a complaint is made, the division shall conduct |
| 321 | its inquiry with due regard to the interests of the affected |
| 322 | parties. Within 30 days after receipt of a complaint, the |
| 323 | division shall acknowledge the complaint in writing and notify |
| 324 | the complainant whether the complaint is within the jurisdiction |
| 325 | of the division and whether additional information is needed by |
| 326 | the division from the complainant. The division shall conduct |
| 327 | its investigation and shall, within 90 days after receipt of the |
| 328 | original complaint or of timely requested additional |
| 329 | information, take action upon the complaint. However, the |
| 330 | failure to complete the investigation within 90 days does not |
| 331 | prevent the division from continuing the investigation, |
| 332 | accepting or considering evidence obtained or received after 90 |
| 333 | days, or taking administrative action if reasonable cause exists |
| 334 | to believe that a violation of this chapter or a rule of the |
| 335 | division has occurred. If an investigation is not completed |
| 336 | within the time limits established in this paragraph, the |
| 337 | division shall, on a monthly basis, notify the complainant in |
| 338 | writing of the status of the investigation. When reporting its |
| 339 | action to the complainant, the division shall inform the |
| 340 | complainant of any right to a hearing pursuant to ss. 120.569 |
| 341 | and 120.57. |
| 342 | (n) Condominium association directors, officers, and |
| 343 | employees; condominium developers; community association |
| 344 | managers; and community association management firms have an |
| 345 | ongoing duty to reasonably cooperate with the division in any |
| 346 | investigation pursuant to this section. The division shall refer |
| 347 | to local law enforcement authorities any person whom the |
| 348 | division believes has altered, destroyed, concealed, or removed |
| 349 | any record, document, or thing required to be kept or maintained |
| 350 | by this chapter with the purpose to impair its verity or |
| 351 | availability in the department's investigation. |
| 352 | (o) The division may: |
| 353 | 1. Contract with agencies in this state or other |
| 354 | jurisdictions to perform investigative functions; or |
| 355 | 2. Accept grants-in-aid from any source. |
| 356 | (p) The division shall cooperate with similar agencies in |
| 357 | other jurisdictions to establish uniform filing procedures and |
| 358 | forms, public offering statements, advertising standards, and |
| 359 | rules and common administrative practices. |
| 360 | (q) The division shall consider notice to a developer to |
| 361 | be complete when it is delivered to the developer's address |
| 362 | currently on file with the division. |
| 363 | (r) In addition to its enforcement authority, the division |
| 364 | may issue a notice to show cause, which shall provide for a |
| 365 | hearing, upon written request, in accordance with chapter 120. |
| 366 | (s) The division shall submit to the Governor, the |
| 367 | President of the Senate, the Speaker of the House of |
| 368 | Representatives, and the chairs of the legislative |
| 369 | appropriations committees an annual report that includes, but |
| 370 | need not be limited to, the number of training programs provided |
| 371 | for condominium association board members and unit owners, the |
| 372 | number of complaints received by type, the number and percent of |
| 373 | complaints acknowledged in writing within 30 days and the number |
| 374 | and percent of investigations acted upon within 90 days in |
| 375 | accordance with paragraph (m), and the number of investigations |
| 376 | exceeding the 90-day requirement. The annual report shall also |
| 377 | include an evaluation of the division's core business processes |
| 378 | and make recommendations for improvements, including statutory |
| 379 | changes. The report shall be submitted by September 30 following |
| 380 | the end of the fiscal year. |
| 381 |
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| 382 | ----------------------------------------------------- |
| 383 | D I R E C T O R Y A M E N D M E N T |
| 384 | Remove lines 70-71 and insert: |
| 385 | Section 1. Paragraphs (d) and (h) of subsection (2) of |
| 386 | section 718.112, Florida Statutes, are amended to read: |
| 387 |
|
| 388 | ----------------------------------------------------- |
| 389 | T I T L E A M E N D M E N T |
| 390 | Remove line 14 and insert: |
| 391 | specified period of years after a director's election; |
| 392 | providing requirements for bylaw amendments by a board of |
| 393 | administration; amending s. 718.116, F.S.; authorizing |
| 394 | association demands for assessment payments from tenants of |
| 395 | delinquent owners during pendency of a foreclosure action |
| 396 | of a condominium unit; providing for notice; providing for |
| 397 | credits against rent for assessment payments by tenants; |
| 398 | providing for eviction proceedings for nonpayment; |
| 399 | providing for effect of provisions on rights and duties of |
| 400 | the tenant and association; amending s. 718.501, F.S.; |
| 401 | providing for division jurisdiction to investigate |
| 402 | complaints concerning failure to maintain common elements; |
| 403 | prohibiting an officer or director from acting as such for |
| 404 | a specified period after having been found to have |
| 405 | committed specified violations; providing for payment of |
| 406 | restitution and costs of investigation and prosecution in |
| 407 | certain circumstances; |