Florida Senate - 2019                                     SB 610
       By Senator Pizzo
       38-00906A-19                                           2019610__
    1                        A bill to be entitled                      
    2         An act relating to condominium associations; amending
    3         s. 718.111, F.S.; revising criminal penalties relating
    4         to the acceptance of things or services of value or
    5         kickbacks; providing criminal penalties for certain
    6         violations relating to official association records;
    7         defining the term “repeatedly”; revising criminal
    8         penalties relating to the use of association debit
    9         cards; defining the term “lawful obligation of the
   10         association”; creating s. 718.129, F.S.; providing
   11         criminal penalties for fraudulent voting activities
   12         related to association elections; providing an
   13         effective date.
   15  Be It Enacted by the Legislature of the State of Florida:
   17         Section 1. Paragraphs (a) and (d) of subsection (1),
   18  paragraph (c) of subsection (12), and paragraph (b) of
   19  subsection (15) of section 718.111, Florida Statutes, are
   20  amended to read:
   21         718.111 The association.—
   22         (1) CORPORATE ENTITY.—
   23         (a) The operation of the condominium shall be by the
   24  association, which must be a Florida corporation for profit or a
   25  Florida corporation not for profit. However, any association
   26  which was in existence on January 1, 1977, need not be
   27  incorporated. The owners of units shall be shareholders or
   28  members of the association. The officers and directors of the
   29  association have a fiduciary relationship to the unit owners. It
   30  is the intent of the Legislature that nothing in this paragraph
   31  shall be construed as providing for or removing a requirement of
   32  a fiduciary relationship between any manager employed by the
   33  association and the unit owners. An officer, director, or
   34  manager may not solicit, offer to accept, or accept any thing or
   35  service of value or kickback for which consideration has not
   36  been provided for his or her own benefit or that of his or her
   37  immediate family, from any person providing or proposing to
   38  provide goods or services to the association. Any such officer,
   39  director, or manager who knowingly so solicits, offers to
   40  accept, or accepts any thing or service of value or kickback
   41  commits a felony of the third degree, punishable as provided in
   42  s. 775.082, s. 775.083, or s. 775.084, and is subject to a civil
   43  penalty pursuant to s. 718.501(1)(d) and, if applicable, a
   44  criminal penalty as provided in paragraph (d). However, this
   45  paragraph does not prohibit an officer, director, or manager
   46  from accepting services or items received in connection with
   47  trade fairs or education programs. An association may operate
   48  more than one condominium.
   49         (d) As required by s. 617.0830, an officer, director, or
   50  agent shall discharge his or her duties in good faith, with the
   51  care an ordinarily prudent person in a like position would
   52  exercise under similar circumstances, and in a manner he or she
   53  reasonably believes to be in the interests of the association.
   54  An officer, director, or agent shall be liable for monetary
   55  damages as provided in s. 617.0834 if such officer, director, or
   56  agent breached or failed to perform his or her duties and the
   57  breach of, or failure to perform, his or her duties constitutes
   58  a violation of criminal law as provided in s. 617.0834;
   59  constitutes a transaction from which the officer or director
   60  derived an improper personal benefit, either directly or
   61  indirectly; or constitutes recklessness or an act or omission
   62  that was in bad faith, with malicious purpose, or in a manner
   63  exhibiting wanton and willful disregard of human rights, safety,
   64  or property. Forgery of a ballot envelope or voting certificate
   65  used in a condominium association election is punishable as
   66  provided in s. 831.01, the theft or embezzlement of funds of a
   67  condominium association is punishable as provided in s. 812.014,
   68  and the destruction of or the refusal to allow inspection or
   69  copying of an official record of a condominium association that
   70  is accessible to unit owners within the time periods required by
   71  general law in furtherance of any crime is punishable as
   72  tampering with physical evidence as provided in s. 918.13 or as
   73  obstruction of justice as provided in chapter 843. An officer or
   74  director charged by information or indictment with a crime
   75  referenced in this paragraph must be removed from office, and
   76  the vacancy shall be filled as provided in s. 718.112(2)(d)2.
   77  until the end of the officer’s or director’s period of
   78  suspension or the end of his or her term of office, whichever
   79  occurs first. If a criminal charge is pending against the
   80  officer or director, he or she may not be appointed or elected
   81  to a position as an officer or a director of any association and
   82  may not have access to the official records of any association,
   83  except pursuant to a court order. However, if the charges are
   84  resolved without a finding of guilt, the officer or director
   85  must be reinstated for the remainder of his or her term of
   86  office, if any.
   87         (12) OFFICIAL RECORDS.—
   88         (c)1. The official records of the association are open to
   89  inspection by any association member or the authorized
   90  representative of such member at all reasonable times. The right
   91  to inspect the records includes the right to make or obtain
   92  copies, at the reasonable expense, if any, of the member or
   93  authorized representative of such member. A renter of a unit has
   94  a right to inspect and copy the association’s bylaws and rules.
   95  The association may adopt reasonable rules regarding the
   96  frequency, time, location, notice, and manner of record
   97  inspections and copying. The failure of an association to
   98  provide the records within 10 working days after receipt of a
   99  written request creates a rebuttable presumption that the
  100  association willfully failed to comply with this paragraph. A
  101  unit owner who is denied access to official records is entitled
  102  to the actual damages or minimum damages for the association’s
  103  willful failure to comply. Minimum damages are $50 per calendar
  104  day for up to 10 days, beginning on the 11th working day after
  105  receipt of the written request. The failure to permit inspection
  106  entitles any person prevailing in an enforcement action to
  107  recover reasonable attorney fees from the person in control of
  108  the records who, directly or indirectly, knowingly denied access
  109  to the records.
  110         2. Any director or member of the board or association who
  111  knowingly, willfully, and repeatedly violates subparagraph 1.
  112  commits a misdemeanor of the second degree, punishable as
  113  provided in s. 775.082 or s. 775.083. For the purposes of this
  114  subparagraph, the term “repeatedly” means two or more violations
  115  within a 12-month period.
  116         3.2. Any person who knowingly or intentionally defaces or
  117  destroys accounting records that are required by this chapter to
  118  be maintained during the period for which such records are
  119  required to be maintained, or who knowingly or intentionally
  120  fails to create or maintain accounting records that are required
  121  to be created or maintained, with the intent of causing harm to
  122  the association or one or more of its members, commits a
  123  misdemeanor of the first degree, punishable as provided in s.
  124  775.082 or s. 775.083 is personally subject to a civil penalty
  125  pursuant to s. 718.501(1)(d).
  126         4. Any person who willfully and knowingly refuses to
  127  release or otherwise produce association records with the intent
  128  to avoid or escape detection, arrest, trial, or punishment for
  129  the commission of a crime, or to assist another person with such
  130  avoidance or escape, commits a felony of the third degree,
  131  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  132         5.3. The association shall maintain an adequate number of
  133  copies of the declaration, articles of incorporation, bylaws,
  134  and rules, and all amendments to each of the foregoing, as well
  135  as the question and answer sheet as described in s. 718.504 and
  136  year-end financial information required under this section, on
  137  the condominium property to ensure their availability to unit
  138  owners and prospective purchasers, and may charge its actual
  139  costs for preparing and furnishing these documents to those
  140  requesting the documents. An association shall allow a member or
  141  his or her authorized representative to use a portable device,
  142  including a smartphone, tablet, portable scanner, or any other
  143  technology capable of scanning or taking photographs, to make an
  144  electronic copy of the official records in lieu of the
  145  association’s providing the member or his or her authorized
  146  representative with a copy of such records. The association may
  147  not charge a member or his or her authorized representative for
  148  the use of a portable device. Notwithstanding this paragraph,
  149  the following records are not accessible to unit owners:
  150         a. Any record protected by the lawyer-client privilege as
  151  described in s. 90.502 and any record protected by the work
  152  product privilege, including a record prepared by an association
  153  attorney or prepared at the attorney’s express direction, which
  154  reflects a mental impression, conclusion, litigation strategy,
  155  or legal theory of the attorney or the association, and which
  156  was prepared exclusively for civil or criminal litigation or for
  157  adversarial administrative proceedings, or which was prepared in
  158  anticipation of such litigation or proceedings until the
  159  conclusion of the litigation or proceedings.
  160         b. Information obtained by an association in connection
  161  with the approval of the lease, sale, or other transfer of a
  162  unit.
  163         c. Personnel records of association or management company
  164  employees, including, but not limited to, disciplinary, payroll,
  165  health, and insurance records. For purposes of this sub
  166  subparagraph, the term “personnel records” does not include
  167  written employment agreements with an association employee or
  168  management company, or budgetary or financial records that
  169  indicate the compensation paid to an association employee.
  170         d. Medical records of unit owners.
  171         e. Social security numbers, driver license numbers, credit
  172  card numbers, e-mail addresses, telephone numbers, facsimile
  173  numbers, emergency contact information, addresses of a unit
  174  owner other than as provided to fulfill the association’s notice
  175  requirements, and other personal identifying information of any
  176  person, excluding the person’s name, unit designation, mailing
  177  address, property address, and any address, e-mail address, or
  178  facsimile number provided to the association to fulfill the
  179  association’s notice requirements. Notwithstanding the
  180  restrictions in this sub-subparagraph, an association may print
  181  and distribute to parcel owners a directory containing the name,
  182  parcel address, and all telephone numbers of each parcel owner.
  183  However, an owner may exclude his or her telephone numbers from
  184  the directory by so requesting in writing to the association. An
  185  owner may consent in writing to the disclosure of other contact
  186  information described in this sub-subparagraph. The association
  187  is not liable for the inadvertent disclosure of information that
  188  is protected under this sub-subparagraph if the information is
  189  included in an official record of the association and is
  190  voluntarily provided by an owner and not requested by the
  191  association.
  192         f. Electronic security measures that are used by the
  193  association to safeguard data, including passwords.
  194         g. The software and operating system used by the
  195  association which allow the manipulation of data, even if the
  196  owner owns a copy of the same software used by the association.
  197  The data is part of the official records of the association.
  198         (15) DEBIT CARDS.—
  199         (b) A person who uses Use of a debit card issued in the
  200  name of the association, or billed directly to the association,
  201  for any expense that is not a lawful obligation of the
  202  association commits theft under s. 812.014. For the purposes of
  203  this paragraph, a “lawful obligation of the association” means
  204  an obligation that has been properly preapproved by the board
  205  and is reflected in the meeting minutes or the written budget
  206  may be prosecuted as credit card fraud pursuant to s. 817.61.
  207         Section 2. Section 718.129, Florida Statutes, is created to
  208  read:
  209         718.129 Fraudulent voting activities related to association
  210  elections; penalties.—
  211         (1) Each of the following acts is a fraudulent voting
  212  activity related to association elections and constitutes a
  213  felony of the third degree, punishable as provided in s.
  214  775.082, s. 775.083, or s. 775.084:
  215         (a) Willfully and falsely swearing or affirming any oath or
  216  affirmation, or willfully procuring another person to swear or
  217  affirm falsely to an oath of affirmation, in connection with or
  218  arising out of voting or elections.
  219         (b) Perpetrating or attempting to perpetrate, or aiding in
  220  the perpetration of, any fraud in connection with any vote cast,
  221  to be cast, or attempted to be cast.
  222         (c) Preventing an elector from voting, or preventing an
  223  elector from voting as the elector intended, by fraudulently
  224  changing or attempting to change a ballot, ballot envelope,
  225  vote, or voting certificate of the elector.
  226         (d) Using bribery, menace, threat, or any other corruption
  227  to attempt, directly or indirectly, to influence, deceive, or
  228  deter any elector in voting.
  229         (e) Directly or indirectly giving or promising anything of
  230  value to another person with the intent to buy the vote of that
  231  person or another person or to corruptly influence that person
  232  or another person in casting his or her vote. However, this
  233  paragraph does not apply to the serving of food to be consumed
  234  at an election rally or meeting or to any item of nominal value
  235  which is used as an election advertisement, including a campaign
  236  message designed to be worn by a person.
  237         (f) Directly or indirectly using or threatening to use
  238  force, violence, or intimidation or any tactic of coercion or
  239  intimidation to induce or compel an individual to vote or
  240  refrain from voting in an election or on any particular ballot
  241  measure.
  242         (2) Each of the following acts constitutes a felony of the
  243  third degree, punishable as provided in s. 775.082, s. 775.083,
  244  or s. 775.084:
  245         (a) Knowingly aiding, abetting, or advising a person in the
  246  commission of a fraudulent voting activity related to
  247  association elections.
  248         (b) Agreeing, conspiring, combining, or confederating with
  249  at least one other person to commit a fraudulent voting activity
  250  related to association elections.
  251         (c) Having knowledge of a fraudulent voting activity
  252  related to association elections and giving any aid to the
  253  offender with intent that the offender avoid or escape
  254  detection, arrest, trial, or punishment. This paragraph does not
  255  apply to a licensed attorney giving legal advice to a client.
  256         Section 3. This act shall take effect October 1, 2019.