Florida Senate - 2013                                     SB 580
       By Senator Hays
       11-00540A-13                                           2013580__
    1                        A bill to be entitled                      
    2         An act relating to homeowners’ associations; amending
    3         s. 720.303, F.S.; providing for association members to
    4         take photographs or images of association records
    5         without charge in certain circumstances; decreasing
    6         the amount of time an association has to comply with
    7         access to the records; clarifying provisions relating
    8         to fees that an association may charge for providing
    9         copies of records; creating s. 720.3033, F.S.;
   10         requiring association directors to file with the
   11         association secretary certification that they have
   12         read certain association documents, will uphold the
   13         documents, and will uphold their fiduciary
   14         responsibility to the members, or that they have
   15         completed an educational course approved by the
   16         department; providing that the certificate is valid
   17         while the director is on the board; providing
   18         penalties for failure to file a written certification
   19         or educational certificate; requiring the secretary to
   20         retain each written certification or educational
   21         certificate for 5 years; providing procedures to be
   22         followed which relate to contracts or transactions
   23         between the association and a director or entity in
   24         which a director or officer is financially interested;
   25         providing for disclosure of the contract or other
   26         transaction to members; providing for the cancellation
   27         of such contract or transaction under certain
   28         circumstances; prohibiting any officer, director, or
   29         association manager from soliciting or receiving
   30         certain personal benefits from any person providing or
   31         offering to provide goods or services to the
   32         association; providing a penalty; providing an
   33         exception; providing for the removal of any director
   34         or officer charged with a felony theft or embezzlement
   35         offense involving association funds or property;
   36         providing for the reinstatement of such person under
   37         certain circumstances; requiring the association to
   38         maintain insurance or a bond to cover funds that will
   39         be in the custody of the association or its management
   40         agent; providing an effective date.
   42  Be It Enacted by the Legislature of the State of Florida:
   44         Section 1. Subsection (5) of section 720.303, Florida
   45  Statutes, is amended to read:
   46         720.303 Association powers and duties; meetings of board;
   47  official records; budgets; financial reporting; association
   48  funds; recalls.—
   49         (5) INSPECTION AND COPYING OF RECORDS.—The official records
   50  shall be maintained within the state and must be open to
   51  inspection and available for photocopying by members or their
   52  authorized agents at reasonable times and places within 5 10
   53  business days after receipt of a written request for access.
   54  This subsection may be complied with by having a copy of the
   55  official records available for inspection or copying in the
   56  community. If the association has a photocopy machine available
   57  where the records are maintained, it must provide parcel owners
   58  with copies on request during the inspection if the entire
   59  request is limited to no more than 25 pages. The association
   60  must also permit a member to take photographic images of such
   61  records with a camera or other electronic device at no charge.
   62         (a) The failure of an association to provide access to the
   63  records within 5 10 business days after receipt of a written
   64  request submitted by certified mail, return receipt requested,
   65  creates a rebuttable presumption that the association willfully
   66  failed to comply with this subsection.
   67         (b) A member who is denied access to official records is
   68  entitled to the actual damages or minimum damages for the
   69  association’s willful failure to comply with this subsection.
   70  The minimum damages are to be $50 per calendar day up to 10
   71  days, the calculation to begin on the 11th business day after
   72  receipt of the written request.
   73         (c) The association may adopt reasonable written rules
   74  governing the frequency, time, location, notice, records to be
   75  inspected, and manner of inspections, but may not require a
   76  parcel owner to demonstrate any proper purpose for the
   77  inspection, state any reason for the inspection, or limit a
   78  parcel owner’s right to inspect records to less than one 8-hour
   79  business day per month. The association may impose fees to cover
   80  the costs of providing copies of the official records,
   81  including, without limitation, the costs of copying. The
   82  association may charge up to 50 cents per page for copies made
   83  on the association’s photocopier. If the association does not
   84  have a photocopy machine available where the records are kept,
   85  or if the records requested to be copied exceed 25 pages in
   86  length, the association may have copies made by an outside
   87  vendor or association management company personnel and may
   88  charge the actual cost of copying, including any reasonable
   89  costs involving personnel fees and charges at an hourly rate for
   90  vendor or employee time to cover administrative costs to the
   91  vendor or association. The association shall maintain an
   92  adequate number of copies of the recorded governing documents,
   93  to ensure their availability to members and prospective members.
   94  Notwithstanding this paragraph, the following records are not
   95  accessible to members or parcel owners:
   96         1. Any record protected by the lawyer-client privilege as
   97  described in s. 90.502 and any record protected by the work
   98  product privilege, including, but not limited to, a record
   99  prepared by an association attorney or prepared at the
  100  attorney’s express direction which reflects a mental impression,
  101  conclusion, litigation strategy, or legal theory of the attorney
  102  or the association and which was prepared exclusively for civil
  103  or criminal litigation or for adversarial administrative
  104  proceedings or which was prepared in anticipation of such
  105  litigation or proceedings until the conclusion of the litigation
  106  or proceedings.
  107         2. Information obtained by an association in connection
  108  with the approval of the lease, sale, or other transfer of a
  109  parcel.
  110         3. Personnel records of the association’s employees,
  111  including, but not limited to, disciplinary, payroll, health,
  112  and insurance records. For purposes of this subparagraph, the
  113  term “personnel records” does not include written employment
  114  agreements with an association employee or budgetary or
  115  financial records that indicate the compensation paid to an
  116  association employee.
  117         4. Medical records of parcel owners or community residents.
  118         5. Social security numbers, driver’s license numbers,
  119  credit card numbers, electronic mailing addresses, telephone
  120  numbers, facsimile numbers, emergency contact information, any
  121  addresses for a parcel owner other than as provided for
  122  association notice requirements, and other personal identifying
  123  information of any person, excluding the person’s name, parcel
  124  designation, mailing address, and property address. However, an
  125  owner may consent in writing to the disclosure of protected
  126  information described in this subparagraph. The association is
  127  not liable for the disclosure of information that is protected
  128  under this subparagraph if the information is included in an
  129  official record of the association and is voluntarily provided
  130  by an owner and not requested by the association.
  131         6. Any electronic security measure that is used by the
  132  association to safeguard data, including passwords.
  133         7. The software and operating system used by the
  134  association which allows the manipulation of data, even if the
  135  owner owns a copy of the same software used by the association.
  136  The data is part of the official records of the association.
  137         (d) The association or its authorized agent is not required
  138  to provide a prospective purchaser or lienholder with
  139  information about the residential subdivision or the association
  140  other than information or documents required by this chapter to
  141  be made available or disclosed. The association or its
  142  authorized agent may charge a reasonable fee to the prospective
  143  purchaser or lienholder or the current parcel owner or member
  144  for providing good faith responses to requests for information
  145  by or on behalf of a prospective purchaser or lienholder, other
  146  than that required by law, if the fee does not exceed $150 plus
  147  the reasonable cost of photocopying and any attorney’s fees
  148  incurred by the association in connection with the response.
  149         Section 2. Section 720.3033, Florida Statutes, is created
  150  to read:
  151         720.3033Officers and directors.—
  152         (1)(a) Within 90 days after being elected or appointed to
  153  the board, each director shall certify in writing to the
  154  secretary of the association that he or she has read the
  155  association’s declaration of covenants, articles of
  156  incorporation, bylaws, and current written rules and policies;
  157  that he or she will work to uphold such documents and policies
  158  to the best of his or her ability; and that he or she will
  159  faithfully discharge his or her fiduciary responsibility to the
  160  association’s members.
  161         (b) In lieu of the written certification, a director may
  162  submit a certificate showing that he or she has satisfactorily
  163  completed the educational curriculum administered by an
  164  education provider approved by the division within 1 year before
  165  or 90 days after the date of his or her election or appointment
  166  to the board.
  167         (c) The written certification or educational certificate is
  168  valid for the uninterrupted tenure of the director on the board.
  169  A director who does not timely file the written certification or
  170  educational certificate shall be suspended from the board until
  171  he or she complies with the requirement. The board may
  172  temporarily fill the vacancy during the period of suspension.
  173         (d) The secretary shall retain each director’s written
  174  certification or educational certificate for inspection by the
  175  members for 5 years after the director’s election. However, the
  176  failure to have the written certification or educational
  177  certificate on file does not affect the validity of any board
  178  action.
  179         (2) If the association enters into a contract or other
  180  transaction with any of its directors or a corporation, firm,
  181  association, or other entity in which an association director is
  182  also a director or officer or is financially interested, the
  183  board must:
  184         (a) Comply with the requirements of s. 617.0832.
  185         (b) Enter the disclosures required by s. 617.0832 into the
  186  written minutes of the meeting.
  187         (c) Approve the contract or other transaction by an
  188  affirmative vote of two-thirds of the directors present.
  189         (d) At the next regular or special meeting of the members,
  190  disclose the existence of the contract or other transaction to
  191  the members. Upon motion of any member, the contract or
  192  transaction shall be brought up for a vote and may be canceled
  193  by a majority vote of the members present. If the members cancel
  194  the contract, the association is only liable for the reasonable
  195  value of goods and services provided up to the time of
  196  cancellation and is not liable for any termination fee,
  197  liquidated damages, or other penalty for such cancellation.
  198         (3) An officer, director, or manager may not solicit, offer
  199  to accept, or accept any thing or service of value for which
  200  consideration has not been provided for his or her benefit or
  201  for the benefit of a member of his or her immediate family, from
  202  any person providing or proposing to provide goods or services
  203  to the association. Any officer, director, or manager who
  204  knowingly solicits, offers to accept, or accepts any thing or
  205  service of value is subject to a civil penalty as provided in s.
  206  718.501(1)(d). However, this paragraph does not prohibit an
  207  officer, director, or manager from accepting services or items
  208  received in connection with trade fairs or education programs.
  209         (4) A director or officer charged by information or
  210  indictment with a felony theft or embezzlement offense involving
  211  the association’s funds or property must be removed from office.
  212  The vacancy shall be filled according to law until the end of
  213  the period of the suspension or the end of the director’s term
  214  of office, whichever occurs first. A director or officer who has
  215  criminal charges pending may not be appointed or elected to a
  216  position as a director or officer. However, if the charges are
  217  resolved without a finding of guilt, the director or officer
  218  shall be reinstated for any remainder of his or her term of
  219  office.
  220         (5) The association shall maintain insurance or a fidelity
  221  bond for all persons who control or disburse funds of the
  222  association. The insurance policy or fidelity bond must cover
  223  the maximum funds that will be in the custody of the association
  224  or its management agent at any one time. As used in this
  225  subsection, the term “persons who control or disburse funds of
  226  the association” includes, but is not limited to, persons
  227  authorized to sign checks on behalf of the association, and the
  228  president, secretary, and treasurer of the association. The
  229  association shall bear the cost of any insurance or bond.
  230         Section 3. This act shall take effect July 1, 2013.