Florida Senate - 2019                              CS for SB 610
       By the Committee on Criminal Justice; and Senator Pizzo
       591-03440-19                                           2019610c1
    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; revising the documents required to be
    6         included with accounting records; requiring an
    7         association to maintain official records in a
    8         specified manner; revising requirements for the
    9         creation of a rebuttable presumption relating to the
   10         provision of records; authorizing an association to
   11         direct certain persons to the association’s website to
   12         fulfill certain obligations relating to the inspection
   13         of records; providing criminal penalties for certain
   14         violations relating to official association records;
   15         defining the term “repeatedly”; requiring certain
   16         associations to post copies of certain documents on
   17         the association’s website by a specified date;
   18         revising criminal penalties relating to the use of
   19         association debit cards; defining the term “lawful
   20         obligation of the association”; creating s. 718.129,
   21         F.S.; providing criminal penalties for fraudulent
   22         voting activities related to association elections;
   23         providing an effective date.
   25  Be It Enacted by the Legislature of the State of Florida:
   27         Section 1. Paragraphs (a) and (d) of subsection (1),
   28  paragraphs (a), (b), (c), and (g) of subsection (12), and
   29  paragraph (b) of subsection (15) of section 718.111, Florida
   30  Statutes, are amended to read:
   31         718.111 The association.—
   32         (1) CORPORATE ENTITY.—
   33         (a) The operation of the condominium shall be by the
   34  association, which must be a Florida corporation for profit or a
   35  Florida corporation not for profit. However, any association
   36  which was in existence on January 1, 1977, need not be
   37  incorporated. The owners of units shall be shareholders or
   38  members of the association. The officers and directors of the
   39  association have a fiduciary relationship to the unit owners. It
   40  is the intent of the Legislature that nothing in this paragraph
   41  shall be construed as providing for or removing a requirement of
   42  a fiduciary relationship between any manager employed by the
   43  association and the unit owners. An officer, director, or
   44  manager may not solicit, offer to accept, or accept any thing or
   45  service of value or kickback for which consideration has not
   46  been provided for his or her own benefit or that of his or her
   47  immediate family, from any person providing or proposing to
   48  provide goods or services to the association. Any such officer,
   49  director, or manager who knowingly so solicits, offers to
   50  accept, or accepts any thing or service of value or kickback
   51  commits a felony of the third degree, punishable as provided in
   52  s. 775.082, s. 775.083, or s. 775.084, and is subject to a civil
   53  penalty pursuant to s. 718.501(1)(d) and, if applicable, a
   54  criminal penalty as provided in paragraph (d). However, this
   55  paragraph does not prohibit an officer, director, or manager
   56  from accepting services or items received in connection with
   57  trade fairs or education programs. An association may operate
   58  more than one condominium.
   59         (d) As required by s. 617.0830, an officer, director, or
   60  agent shall discharge his or her duties in good faith, with the
   61  care an ordinarily prudent person in a like position would
   62  exercise under similar circumstances, and in a manner he or she
   63  reasonably believes to be in the interests of the association.
   64  An officer, director, or agent shall be liable for monetary
   65  damages as provided in s. 617.0834 if such officer, director, or
   66  agent breached or failed to perform his or her duties and the
   67  breach of, or failure to perform, his or her duties constitutes
   68  a violation of criminal law as provided in s. 617.0834;
   69  constitutes a transaction from which the officer or director
   70  derived an improper personal benefit, either directly or
   71  indirectly; or constitutes recklessness or an act or omission
   72  that was in bad faith, with malicious purpose, or in a manner
   73  exhibiting wanton and willful disregard of human rights, safety,
   74  or property. Forgery of a ballot envelope or voting certificate
   75  used in a condominium association election is punishable as
   76  provided in s. 831.01, the theft or embezzlement of funds of a
   77  condominium association is punishable as provided in s. 812.014,
   78  and the destruction of or the refusal to allow inspection or
   79  copying of an official record of a condominium association that
   80  is accessible to unit owners within the time periods required by
   81  general law in furtherance of any crime is punishable as
   82  tampering with physical evidence as provided in s. 918.13 or as
   83  obstruction of justice as provided in chapter 843. An officer or
   84  director charged by information or indictment with a crime
   85  referenced in this paragraph must be removed from office, and
   86  the vacancy shall be filled as provided in s. 718.112(2)(d)2.
   87  until the end of the officer’s or director’s period of
   88  suspension or the end of his or her term of office, whichever
   89  occurs first. If a criminal charge is pending against the
   90  officer or director, he or she may not be appointed or elected
   91  to a position as an officer or a director of any association and
   92  may not have access to the official records of any association,
   93  except pursuant to a court order. However, if the charges are
   94  resolved without a finding of guilt, the officer or director
   95  must be reinstated for the remainder of his or her term of
   96  office, if any.
   97         (12) OFFICIAL RECORDS.—
   98         (a) From the inception of the association, the association
   99  shall maintain each of the following items, if applicable, which
  100  constitutes the official records of the association:
  101         1. A copy of the plans, permits, warranties, and other
  102  items provided by the developer pursuant to s. 718.301(4).
  103         2. A photocopy of the recorded declaration of condominium
  104  of each condominium operated by the association and each
  105  amendment to each declaration.
  106         3. A photocopy of the recorded bylaws of the association
  107  and each amendment to the bylaws.
  108         4. A certified copy of the articles of incorporation of the
  109  association, or other documents creating the association, and
  110  each amendment thereto.
  111         5. A copy of the current rules of the association.
  112         6. A book or books that contain the minutes of all meetings
  113  of the association, the board of administration, and the unit
  114  owners.
  115         7. A current roster of all unit owners and their mailing
  116  addresses, unit identifications, voting certifications, and, if
  117  known, telephone numbers. The association shall also maintain
  118  the e-mail addresses and facsimile numbers of unit owners
  119  consenting to receive notice by electronic transmission. The e
  120  mail addresses and facsimile numbers are not accessible to unit
  121  owners if consent to receive notice by electronic transmission
  122  is not provided in accordance with sub-subparagraph (c)3.e.
  123  However, the association is not liable for an inadvertent
  124  disclosure of the e-mail address or facsimile number for
  125  receiving electronic transmission of notices.
  126         8. All current insurance policies of the association and
  127  condominiums operated by the association.
  128         9. A current copy of any management agreement, lease, or
  129  other contract to which the association is a party or under
  130  which the association or the unit owners have an obligation or
  131  responsibility.
  132         10. Bills of sale or transfer for all property owned by the
  133  association.
  134         11. Accounting records for the association and separate
  135  accounting records for each condominium that the association
  136  operates. Any person who knowingly or intentionally defaces or
  137  destroys such records, or who knowingly or intentionally fails
  138  to create or maintain such records, with the intent of causing
  139  harm to the association or one or more of its members, is
  140  personally subject to a civil penalty pursuant to s.
  141  718.501(1)(d). The accounting records must include, but are not
  142  limited to:
  143         a. Accurate, itemized, and detailed records of all receipts
  144  and expenditures.
  145         b. A current account and a monthly, bimonthly, or quarterly
  146  statement of the account for each unit designating the name of
  147  the unit owner, the due date and amount of each assessment, the
  148  amount paid on the account, and the balance due.
  149         c. All audits, reviews, accounting statements, and
  150  financial reports of the association or condominium.
  151         d. All contracts for work to be performed. Bids for work to
  152  be performed are also considered official records and must be
  153  maintained by the association.
  154         e.All bank statements, canceled checks, and credit card
  155  statements.
  156         f.All invoices, transaction receipts, deposit slips, or
  157  other underlying documentation that substantiates any receipt or
  158  expenditure of funds by the association.
  159         12. Ballots, sign-in sheets, voting proxies, and all other
  160  papers and electronic records relating to voting by unit owners,
  161  which must be maintained for 1 year from the date of the
  162  election, vote, or meeting to which the document relates,
  163  notwithstanding paragraph (b).
  164         13. All rental records if the association is acting as
  165  agent for the rental of condominium units.
  166         14. A copy of the current question and answer sheet as
  167  described in s. 718.504.
  168         15. All other written records of the association not
  169  specifically included in the foregoing which are related to the
  170  operation of the association.
  171         16. A copy of the inspection report as described in s.
  172  718.301(4)(p).
  173         17. Bids for materials, equipment, or services.
  174         (b) The official records specified in subparagraphs (a)1.
  175  6. must be permanently maintained from the inception of the
  176  association. All other official records must be maintained
  177  within the state for at least 7 years, unless otherwise provided
  178  by general law. The official records must be maintained in an
  179  organized manner that facilitates inspection of the records by a
  180  unit owner. The obligation to maintain official records includes
  181  the obligation to obtain and recreate those records to the
  182  fullest extent possible in the event that the records are lost,
  183  destroyed, or otherwise unavailable. The records of the
  184  association shall be made available to a unit owner within 45
  185  miles of the condominium property or within the county in which
  186  the condominium property is located within 10 working days after
  187  receipt of a written request by the board or its designee.
  188  However, such distance requirement does not apply to an
  189  association governing a timeshare condominium. This paragraph
  190  may be complied with by having a copy of the official records of
  191  the association available for inspection or copying on the
  192  condominium property or association property, or the association
  193  may offer the option of making the records available to a unit
  194  owner electronically via the Internet or by allowing the records
  195  to be viewed in electronic format on a computer screen and
  196  printed upon request. The association is not responsible for the
  197  use or misuse of the information provided to an association
  198  member or his or her authorized representative pursuant to the
  199  compliance requirements of this chapter unless the association
  200  has an affirmative duty not to disclose such information
  201  pursuant to this chapter.
  202         (c)1. The official records of the association are open to
  203  inspection by any association member or the authorized
  204  representative of such member at all reasonable times. The right
  205  to inspect the records includes the right to make or obtain
  206  copies, at the reasonable expense, if any, of the member or
  207  authorized representative of such member. A renter of a unit has
  208  a right to inspect and copy the association’s bylaws and rules.
  209  The association may adopt reasonable rules regarding the
  210  frequency, time, location, notice, and manner of record
  211  inspections and copying. The failure of an association to
  212  provide the records within 10 working days after receipt of a
  213  written request that complies with the association’s document
  214  inspection rule creates a rebuttable presumption that the
  215  association willfully failed to comply with this paragraph. A
  216  unit owner who is denied access to official records is entitled
  217  to the actual damages or minimum damages for the association’s
  218  willful failure to comply. Minimum damages are $50 per calendar
  219  day for up to 10 days, beginning on the 11th working day after
  220  receipt of the written request that complies with the
  221  association’s document inspection rule. The failure to permit
  222  inspection entitles any person prevailing in an enforcement
  223  action to recover reasonable attorney fees from the person in
  224  control of the records who, directly or indirectly, knowingly
  225  denied access to the records. If the requested records are
  226  posted on an association’s website, the association may fulfill
  227  its obligations as provided under this paragraph by directing to
  228  the website all persons authorized to request access to official
  229  records pursuant to this paragraph.
  230         2. Any director or member of the board or association or a
  231  community association manager who knowingly, willfully, and
  232  repeatedly violates subparagraph 1. commits a misdemeanor of the
  233  second degree, punishable as provided in s. 775.082 or s.
  234  775.083. For the purposes of this subparagraph, the term
  235  “repeatedly” means two or more violations within a 12-month
  236  period.
  237         3.2. Any person who knowingly or intentionally defaces or
  238  destroys accounting records that are required by this chapter to
  239  be maintained during the period for which such records are
  240  required to be maintained, or who knowingly or intentionally
  241  fails to create or maintain accounting records that are required
  242  to be created or maintained, with the intent of causing harm to
  243  the association or one or more of its members, commits a
  244  misdemeanor of the first degree, punishable as provided in s.
  245  775.082 or s. 775.083 is personally subject to a civil penalty
  246  pursuant to s. 718.501(1)(d).
  247         4. Any person who willfully and knowingly refuses to
  248  release or otherwise produce association records with the intent
  249  to avoid or escape detection, arrest, trial, or punishment for
  250  the commission of a crime, or to assist another person with such
  251  avoidance or escape, commits a felony of the third degree,
  252  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  253         5.3. The association shall maintain an adequate number of
  254  copies of the declaration, articles of incorporation, bylaws,
  255  and rules, and all amendments to each of the foregoing, as well
  256  as the question and answer sheet as described in s. 718.504 and
  257  year-end financial information required under this section, on
  258  the condominium property to ensure their availability to unit
  259  owners and prospective purchasers, and may charge its actual
  260  costs for preparing and furnishing these documents to those
  261  requesting the documents. An association shall allow a member or
  262  his or her authorized representative to use a portable device,
  263  including a smartphone, tablet, portable scanner, or any other
  264  technology capable of scanning or taking photographs, to make an
  265  electronic copy of the official records in lieu of the
  266  association’s providing the member or his or her authorized
  267  representative with a copy of such records. The association may
  268  not charge a member or his or her authorized representative for
  269  the use of a portable device. Notwithstanding this paragraph,
  270  the following records are not accessible to unit owners:
  271         a. Any record protected by the lawyer-client privilege as
  272  described in s. 90.502 and any record protected by the work
  273  product privilege, including a record prepared by an association
  274  attorney or prepared at the attorney’s express direction, which
  275  reflects a mental impression, conclusion, litigation strategy,
  276  or legal theory of the attorney or the association, and which
  277  was prepared exclusively for civil or criminal litigation or for
  278  adversarial administrative proceedings, or which was prepared in
  279  anticipation of such litigation or proceedings until the
  280  conclusion of the litigation or proceedings.
  281         b. Information obtained by an association in connection
  282  with the approval of the lease, sale, or other transfer of a
  283  unit.
  284         c. Personnel records of association or management company
  285  employees, including, but not limited to, disciplinary, payroll,
  286  health, and insurance records. For purposes of this sub
  287  subparagraph, the term “personnel records” does not include
  288  written employment agreements with an association employee or
  289  management company, or budgetary or financial records that
  290  indicate the compensation paid to an association employee.
  291         d. Medical records of unit owners.
  292         e. Social security numbers, driver license numbers, credit
  293  card numbers, e-mail addresses, telephone numbers, facsimile
  294  numbers, emergency contact information, addresses of a unit
  295  owner other than as provided to fulfill the association’s notice
  296  requirements, and other personal identifying information of any
  297  person, excluding the person’s name, unit designation, mailing
  298  address, property address, and any address, e-mail address, or
  299  facsimile number provided to the association to fulfill the
  300  association’s notice requirements. Notwithstanding the
  301  restrictions in this sub-subparagraph, an association may print
  302  and distribute to parcel owners a directory containing the name,
  303  parcel address, and all telephone numbers of each parcel owner.
  304  However, an owner may exclude his or her telephone numbers from
  305  the directory by so requesting in writing to the association. An
  306  owner may consent in writing to the disclosure of other contact
  307  information described in this sub-subparagraph. The association
  308  is not liable for the inadvertent disclosure of information that
  309  is protected under this sub-subparagraph if the information is
  310  included in an official record of the association and is
  311  voluntarily provided by an owner and not requested by the
  312  association.
  313         f. Electronic security measures that are used by the
  314  association to safeguard data, including passwords.
  315         g. The software and operating system used by the
  316  association which allow the manipulation of data, even if the
  317  owner owns a copy of the same software used by the association.
  318  The data is part of the official records of the association.
  319         (g)1. By January 1, 2021 2019, an association managing a
  320  condominium with 25 150 or more units which does not contain
  321  timeshare units shall post digital copies of the documents
  322  specified in subparagraph 2. on its website.
  323         a. The association’s website must be:
  324         (I) An independent website or web portal wholly owned and
  325  operated by the association; or
  326         (II) A website or web portal operated by a third-party
  327  provider with whom the association owns, leases, rents, or
  328  otherwise obtains the right to operate a web page, subpage, web
  329  portal, or collection of subpages or web portals dedicated to
  330  the association’s activities and on which required notices,
  331  records, and documents may be posted by the association.
  332         b. The association’s website must be accessible through the
  333  Internet and must contain a subpage, web portal, or other
  334  protected electronic location that is inaccessible to the
  335  general public and accessible only to unit owners and employees
  336  of the association.
  337         c. Upon a unit owner’s written request, the association
  338  must provide the unit owner with a username and password and
  339  access to the protected sections of the association’s website
  340  that contain any notices, records, or documents that must be
  341  electronically provided.
  342         2. A current copy of the following documents must be posted
  343  in digital format on the association’s website:
  344         a. The recorded declaration of condominium of each
  345  condominium operated by the association and each amendment to
  346  each declaration.
  347         b. The recorded bylaws of the association and each
  348  amendment to the bylaws.
  349         c. The articles of incorporation of the association, or
  350  other documents creating the association, and each amendment
  351  thereto. The copy posted pursuant to this sub-subparagraph must
  352  be a copy of the articles of incorporation filed with the
  353  Department of State.
  354         d. The rules of the association.
  355         e. A list of all executory contracts or documents to which
  356  the association is a party or under which the association or the
  357  unit owners have an obligation or responsibility and, after
  358  bidding for the related materials, equipment, or services has
  359  closed, a list of bids received by the association within the
  360  past year. Summaries of bids for materials, equipment, or
  361  services which exceed $500 must be maintained on the website for
  362  1 year. In lieu of summaries, complete copies of the bids may be
  363  posted.
  364         f. The annual budget required by s. 718.112(2)(f) and any
  365  proposed budget to be considered at the annual meeting.
  366         g. The financial report required by subsection (13) and any
  367  monthly income or expense statement to be considered at a
  368  meeting.
  369         h. The certification of each director required by s.
  370  718.112(2)(d)4.b.
  371         i. All contracts or transactions between the association
  372  and any director, officer, corporation, firm, or association
  373  that is not an affiliated condominium association or any other
  374  entity in which an association director is also a director or
  375  officer and financially interested.
  376         j. Any contract or document regarding a conflict of
  377  interest or possible conflict of interest as provided in ss.
  378  468.436(2)(b)6. and 718.3027(3).
  379         k. The notice of any unit owner meeting and the agenda for
  380  the meeting, as required by s. 718.112(2)(d)3., no later than 14
  381  days before the meeting. The notice must be posted in plain view
  382  on the front page of the website, or on a separate subpage of
  383  the website labeled “Notices” which is conspicuously visible and
  384  linked from the front page. The association must also post on
  385  its website any document to be considered and voted on by the
  386  owners during the meeting or any document listed on the agenda
  387  at least 7 days before the meeting at which the document or the
  388  information within the document will be considered.
  389         l. Notice of any board meeting, the agenda, and any other
  390  document required for the meeting as required by s.
  391  718.112(2)(c), which must be posted no later than the date
  392  required for notice pursuant to s. 718.112(2)(c).
  393         3. The association shall ensure that the information and
  394  records described in paragraph (c), which are not allowed to be
  395  accessible to unit owners, are not posted on the association’s
  396  website. If protected information or information restricted from
  397  being accessible to unit owners is included in documents that
  398  are required to be posted on the association’s website, the
  399  association shall ensure the information is redacted before
  400  posting the documents online. Notwithstanding the foregoing, the
  401  association or its agent is not liable for disclosing
  402  information that is protected or restricted pursuant to this
  403  paragraph unless such disclosure was made with a knowing or
  404  intentional disregard of the protected or restricted nature of
  405  such information.
  406         4. The failure of the association to post information
  407  required under subparagraph 2. is not in and of itself
  408  sufficient to invalidate any action or decision of the
  409  association’s board or its committees.
  410         5.By January 1, 2021, an association managing 25 or more
  411  units shall post on its website digital copies of all official
  412  records subject to inspection by tenants or unit owners or their
  413  authorized representatives.
  414         (15) DEBIT CARDS.—
  415         (b) A person who uses Use of a debit card issued in the
  416  name of the association, or billed directly to the association,
  417  for any expense that is not a lawful obligation of the
  418  association commits theft under s. 812.014. For the purposes of
  419  this paragraph, a “lawful obligation of the association” means
  420  an obligation that has been properly preapproved by the board
  421  and is reflected in the meeting minutes or the written budget
  422  may be prosecuted as credit card fraud pursuant to s. 817.61.
  423         Section 2. Section 718.129, Florida Statutes, is created to
  424  read:
  425         718.129 Fraudulent voting activities related to association
  426  elections; penalties.—
  427         (1) Each of the following acts is a fraudulent voting
  428  activity related to association elections and constitutes a
  429  felony of the third degree, punishable as provided in s.
  430  775.082, s. 775.083, or s. 775.084:
  431         (a) Willfully and falsely swearing or affirming any oath or
  432  affirmation, or willfully procuring another person to swear or
  433  affirm falsely to an oath of affirmation, in connection with or
  434  arising out of voting or elections.
  435         (b) Perpetrating or attempting to perpetrate, or aiding in
  436  the perpetration of, any fraud in connection with any vote cast,
  437  to be cast, or attempted to be cast.
  438         (c) Preventing an elector from voting, or preventing an
  439  elector from voting as the elector intended, by fraudulently
  440  changing or attempting to change a ballot, ballot envelope,
  441  vote, or voting certificate of the elector.
  442         (d) Using bribery, menace, threat, or any other corruption
  443  to attempt, directly or indirectly, to influence, deceive, or
  444  deter any elector in voting.
  445         (e) Directly or indirectly giving or promising anything of
  446  value to another person with the intent to buy the vote of that
  447  person or another person or to corruptly influence that person
  448  or another person in casting his or her vote. However, this
  449  paragraph does not apply to the serving of food to be consumed
  450  at an election rally or meeting or to any item of nominal value
  451  which is used as an election advertisement, including a campaign
  452  message designed to be worn by a person.
  453         (f) Directly or indirectly using or threatening to use
  454  force, violence, or intimidation or any tactic of coercion or
  455  intimidation to induce or compel an individual to vote or
  456  refrain from voting in an election or on any particular ballot
  457  measure.
  458         (2) Each of the following acts constitutes a felony of the
  459  third degree, punishable as provided in s. 775.082, s. 775.083,
  460  or s. 775.084:
  461         (a) Knowingly aiding, abetting, or advising a person in the
  462  commission of a fraudulent voting activity related to
  463  association elections.
  464         (b) Agreeing, conspiring, combining, or confederating with
  465  at least one other person to commit a fraudulent voting activity
  466  related to association elections.
  467         (c) Having knowledge of a fraudulent voting activity
  468  related to association elections and giving any aid to the
  469  offender with intent that the offender avoid or escape
  470  detection, arrest, trial, or punishment. This paragraph does not
  471  apply to a licensed attorney giving legal advice to a client.
  472         Section 3. This act shall take effect October 1, 2019.