Florida Senate - 2020                                    SB 1442
       
       
        
       By Senator Torres
       
       
       
       
       
       15-01572-20                                           20201442__
    1                        A bill to be entitled                      
    2         An act relating to homeowners’ association recalls;
    3         providing a short title; amending s. 720.303, F.S.;
    4         revising the process for recalling a director of a
    5         homeowners’ association; requiring a specified
    6         percentage of certain parcel owners to initiate a
    7         recall petition or a special meeting to recall a
    8         director; requiring the board of directors to duly
    9         notice and hold a referendum within a specified time;
   10         conforming provisions to changes made by the act;
   11         providing an effective date.
   12          
   13  Be It Enacted by the Legislature of the State of Florida:
   14  
   15         Section 1. This act may be cited as the “Community Recall
   16  Act.”
   17         Section 2. Subsection (10) of section 720.303, Florida
   18  Statutes, is amended to read:
   19         720.303 Association powers and duties; meetings of board;
   20  official records; budgets; financial reporting; association
   21  funds; recalls.—
   22         (10) RECALL OF DIRECTORS.—
   23         (a)1. Regardless of any provision to the contrary contained
   24  in the governing documents, subject to the provisions of s.
   25  720.307 regarding transition of association control, any member
   26  of the board of directors may be recalled and removed from
   27  office with or without cause as provided in paragraphs (b) and
   28  (c) by a majority of the total voting interests.
   29         2. When the governing documents, including the declaration,
   30  articles of incorporation, or bylaws, provide that only a
   31  specific class of members is entitled to elect a board director
   32  or directors, only that class of members may vote to recall
   33  those board directors so elected.
   34         (b)1. A board director directors may be subject to removal
   35  from office recalled by a recall petition signed by at least 60
   36  percent of the parcel owners whose parcels are their homesteads
   37  an agreement in writing or by written ballot without a
   38  membership meeting. A recall petition with a sufficient number
   39  of signatures The agreement in writing or the written ballots,
   40  or a copy thereof, shall be served on the association by
   41  certified mail or by personal service in the manner authorized
   42  by chapter 48 and the Florida Rules of Civil Procedure.
   43         2. The board shall duly notice and hold a referendum
   44  meeting of the board within 30 5 full business days after
   45  receipt of the recall petition agreement in writing or written
   46  ballots. The board shall give all members notice of the date by
   47  which ballots must be returned in accordance with the 14-day
   48  notice requirement under subparagraph (2)(c)2. All members with
   49  a voting interest may cast a vote in favor of or opposition to
   50  the recall petition. If a majority of the votes cast are in
   51  favor of the recall petition, the board shall duly notice and
   52  hold a meeting of the board within 5 business days after the
   53  closing date for submitting ballots in the referendum. At the
   54  meeting, the board shall either certify the recall petition
   55  written ballots or written agreement to recall a director or
   56  directors of the board, in which case such director or directors
   57  shall be recalled effective immediately and shall turn over to
   58  the board within 5 full business days any and all records and
   59  property of the association in their possession, or proceed as
   60  described in paragraph (d).
   61         3. If When it is determined by the department through
   62  pursuant to binding arbitration proceedings that a an initial
   63  recall effort under this paragraph was defective, the written
   64  recall agreements or written ballots used in the first
   65  referendum that are recall effort and not found to be defective
   66  may be reused in one subsequent referendum recall effort.
   67  However, in no event is a written agreement or written ballot
   68  valid for more than 120 days after it has been signed by the
   69  member.
   70         4. Any rescission or revocation of a member’s written
   71  recall ballot or agreement must be in writing and, in order to
   72  be effective, must be delivered to the association before the
   73  closing date for submitting ballots in referendum association is
   74  served with the written recall agreements or ballots.
   75         5. The recall petition must agreement in writing or ballot
   76  shall list at least as many possible replacement directors as
   77  there are directors subject to removal the recall, when at least
   78  a majority of the board is sought to be removed from office. In
   79  the duly noticed referendum, all members with a voting interest
   80  recalled; the person executing the recall instrument may vote
   81  for as many replacement candidates as there are directors
   82  subject to removal the recall.
   83         (c)1. If the declaration, articles of incorporation, or
   84  bylaws specifically provide, the members may also recall and
   85  remove a board director or directors by a vote taken at a
   86  meeting. If so provided in the governing documents, a special
   87  meeting of the members to recall a director or directors of the
   88  board of administration may be called by 10 percent of the
   89  parcel owners whose parcels are the homesteads of such owners
   90  voting interests giving notice of the meeting as required for a
   91  meeting of members, and the notice shall state the purpose of
   92  the meeting. Electronic transmission may not be used as a method
   93  of giving notice of a meeting called in whole or in part for
   94  this purpose.
   95         2. The board shall duly notice and hold a board meeting
   96  within 5 full business days after the adjournment of the member
   97  meeting to recall one or more directors. At the meeting, the
   98  board shall certify the recall, in which case such member or
   99  members shall be recalled effective immediately and shall turn
  100  over to the board within 5 full business days any and all
  101  records and property of the association in their possession, or
  102  shall proceed as set forth in paragraph (d).
  103         (d) If the board determines not to certify the recall
  104  petition written agreement or written ballots to recall a
  105  director or directors of the board or does not certify the
  106  recall by a vote at a meeting, the board shall, within 5 full
  107  business days after the meeting, file with the department a
  108  petition for binding arbitration under pursuant to the
  109  applicable procedures in ss. 718.112(2)(j) and 718.1255 and the
  110  rules adopted thereunder. For the purposes of this section, the
  111  members who voted at the meeting or who initiated executed the
  112  recall petition agreement in writing shall constitute one party
  113  under the petition for arbitration. If the arbitrator certifies
  114  the recall as to any director or directors of the board, the
  115  recall will be effective upon mailing of the final order of
  116  arbitration to the association. The director or directors so
  117  recalled shall deliver to the board any and all records of the
  118  association in their possession within 5 full business days
  119  after the effective date of the recall.
  120         (e) If a vacancy occurs on the board as a result of a
  121  recall and less than a majority of the board directors are
  122  removed, the vacancy may be filled by the affirmative vote of a
  123  majority of the remaining directors, notwithstanding any
  124  provision to the contrary contained in this subsection or in the
  125  association documents. If vacancies occur on the board as a
  126  result of a recall and a majority or more of the board directors
  127  are removed, the vacancies shall be filled by members voting in
  128  favor of the recall.; If removal is at a meeting, any vacancies
  129  shall be filled by the members at the meeting. If the recall
  130  occurred by a recall petition agreement in writing or by written
  131  ballot, members may vote for replacement directors in the same
  132  instrument in accordance with procedural rules adopted by the
  133  division, which rules need not be consistent with this
  134  subsection.
  135         (f) If the board fails to duly notice and hold a board
  136  meeting within 5 full business days after the closing date for
  137  submitting ballots in the referendum service of an agreement in
  138  writing or within 5 full business days after the adjournment of
  139  the member recall meeting, the recall is shall be deemed
  140  effective and the board directors so recalled shall immediately
  141  turn over to the board all records and property of the
  142  association.
  143         (g) If the board fails to duly notice and hold the required
  144  meeting or fails to file the required petition, the parcel unit
  145  owner representative may file a petition under pursuant to s.
  146  718.1255 challenging the board’s failure to act. The petition
  147  must be filed within 60 days after the expiration of the
  148  applicable 5-full-business-day period. The review of a petition
  149  under this paragraph is limited to the sufficiency of service on
  150  the board and the facial validity of the recall petition written
  151  agreement or ballots filed.
  152         (h) If a director who is removed fails to relinquish his or
  153  her office or turn over records as required under this section,
  154  the circuit court in the county where the association maintains
  155  its principal office may, upon the petition of the association,
  156  summarily order the director to relinquish his or her office and
  157  turn over all association records upon application of the
  158  association.
  159         (i) The minutes of the board meeting at which the board
  160  decides whether to certify the recall are an official
  161  association record. The minutes must record the date and time of
  162  the meeting, the decision of the board, and the vote count taken
  163  on each board member subject to the recall. In addition, when
  164  the board decides not to certify the recall, as to each vote
  165  rejected, the minutes must identify the parcel number and the
  166  specific reason for each such rejection.
  167         (j) When the recall of more than one board director is
  168  sought, the recall petition written agreement, ballot, or vote
  169  at a meeting shall provide for a separate vote for each board
  170  director sought to be recalled.
  171         (k) A board member who has been recalled may file a
  172  petition under pursuant to ss. 718.112(2)(j) and 718.1255 and
  173  the rules adopted challenging the validity of the recall. The
  174  petition must be filed within 60 days after the recall is deemed
  175  certified or otherwise effective under paragraph (f). The
  176  association and the parcel unit owner representative shall be
  177  named as respondents.
  178         (l) The division may not accept for filing a recall
  179  petition, whether filed under pursuant to paragraph (b),
  180  paragraph (c), paragraph (g), or paragraph (k) and regardless of
  181  whether the recall was certified, when there are 60 or fewer
  182  days until the scheduled reelection of the board member sought
  183  to be recalled or when 60 or fewer days have not elapsed since
  184  the election of the board member sought to be recalled.
  185         Section 3. This act shall take effect July 1, 2020.