Florida Senate - 2023                        COMMITTEE AMENDMENT
       Bill No. SB 1114
       
       
       
       
       
       
                                Ì190622}Î190622                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/04/2023           .                                
                                       .                                
                                       .                                
                                       .                                
       —————————————————————————————————————————————————————————————————




       —————————————————————————————————————————————————————————————————
       The Committee on Regulated Industries (Rodriguez) recommended
       the following:
       
    1         Senate Substitute for Amendment (866366) (with title
    2  amendment)
    3  
    4         Delete everything after the enacting clause
    5  and insert:
    6         Section 1. This act may be cited as the “Homeowners’
    7  Associations Bill of Rights.”
    8         Section 2. Subsection (1) and paragraph (g) of subsection
    9  (4) of section 720.303, Florida Statutes, are amended, and
   10  paragraph (d) is added to subsection (8) of that section, to
   11  read:
   12         720.303 Association powers and duties; meetings of board;
   13  official records; budgets; financial reporting; association
   14  funds; recalls.—
   15         (1) POWERS AND DUTIES.—
   16         (a) An association which operates a community as defined in
   17  s. 720.301, must be operated by an association that is a Florida
   18  corporation. After October 1, 1995, the association must be
   19  incorporated and the initial governing documents must be
   20  recorded in the official records of the county in which the
   21  community is located. An association may operate more than one
   22  community.
   23         (b)1. The officers and directors of an association have a
   24  fiduciary relationship to the members who are served by the
   25  association.
   26         2.An officer or a director charged by information or
   27  indictment with any of the following crimes must be removed from
   28  office, and the vacancy must be filled as provided in s.
   29  720.306(9) until the end of the officer’s or director’s period
   30  of suspension or the end of his or her term of office, whichever
   31  occurs first:
   32         a.Forgery of a ballot envelope or voting certificate used
   33  in a homeowners’ association election as provided in s. 831.01.
   34         b.Theft or embezzlement of funds of a homeowners’
   35  association as provided in s. 812.014.
   36         c.Destruction of or the refusal to allow inspection or
   37  copying of an official record of a homeowners’ association that
   38  is accessible to parcel owners within the time periods required
   39  by general law in furtherance of any crime. Such act constitutes
   40  tampering with physical evidence as provided in s. 918.13.
   41         d.Obstruction of justice under chapter 843.
   42         3.If a criminal charge is pending against the officer or
   43  director, he or she may not be appointed or elected to a
   44  position as an officer or a director of any association and may
   45  not have access to the official records of any association,
   46  except pursuant to a court order. However, if the charges are
   47  resolved without a finding of guilt, the officer or director
   48  must be reinstated for the remainder of his or her term of
   49  office, if any.
   50         (c) The powers and duties of an association include those
   51  set forth in this chapter and, except as expressly limited or
   52  restricted in this chapter, those set forth in the governing
   53  documents.
   54         (d) After control of the association is obtained by members
   55  other than the developer, the association may institute,
   56  maintain, settle, or appeal actions or hearings in its name on
   57  behalf of all members concerning matters of common interest to
   58  the members, including, but not limited to, the common areas;
   59  roof or structural components of a building, or other
   60  improvements for which the association is responsible;
   61  mechanical, electrical, or plumbing elements serving an
   62  improvement or building for which the association is
   63  responsible; representations of the developer pertaining to any
   64  existing or proposed commonly used facility; and protesting ad
   65  valorem taxes on commonly used facilities. The association may
   66  defend actions in eminent domain or bring inverse condemnation
   67  actions. Before commencing litigation against any party in the
   68  name of the association involving amounts in controversy in
   69  excess of $100,000, the association must obtain the affirmative
   70  approval of a majority of the voting interests at a meeting of
   71  the membership at which a quorum has been attained. This
   72  paragraph subsection does not limit any statutory or common-law
   73  right of any individual member or class of members to bring any
   74  action without participation by the association.
   75         (e) A member does not have authority to act for the
   76  association by virtue of being a member. An association may have
   77  more than one class of members and may issue membership
   78  certificates.
   79         (f) An association of 15 or fewer parcel owners may enforce
   80  only the requirements of those deed restrictions established
   81  prior to the purchase of each parcel upon an affected parcel
   82  owner or owners.
   83         (4) OFFICIAL RECORDS.—The association shall maintain each
   84  of the following items, when applicable, which constitute the
   85  official records of the association:
   86         (g) A current roster of all members and their designated
   87  mailing addresses and parcel identifications. A member’s
   88  designated mailing address is the member’s property address,
   89  unless the member has sent written notice to the association
   90  requesting that a different mailing address be used for all
   91  required notices. The association shall also maintain the e-mail
   92  electronic mailing addresses and the facsimile numbers
   93  designated by members for receiving notice sent by electronic
   94  transmission of those members consenting to receive notice by
   95  electronic transmission. A member’s e-mail address is the e-mail
   96  address the member provided when consenting in writing to
   97  receiving notice by electronic transmission, unless the member
   98  has sent written notice to the association requesting that a
   99  different e-mail address be used for all required notices. The
  100  e-mail electronic mailing addresses and facsimile numbers
  101  provided by members unit owners to receive notice by electronic
  102  transmission must shall be removed from association records when
  103  the member revokes consent to receive notice by electronic
  104  transmission is revoked. However, the association is not liable
  105  for an erroneous disclosure of the e-mail electronic mail
  106  address or the facsimile number for receiving electronic
  107  transmission of notices.
  108         (8) ASSOCIATION FUNDS; COMMINGLING.—
  109         (d)If an association collects a deposit from a member for
  110  any reason, including to pay for expenses that may be incurred
  111  as a result of construction on a member’s parcel, such funds
  112  must be maintained separately and may not be comingled with any
  113  other association funds. Upon completion of the member’s
  114  construction project, or other reason for which the deposit was
  115  collected, the member may request an accounting from the
  116  association of his or her funds that were deposited, and the
  117  association must provide such accounting to the member within 7
  118  days after receiving the member’s request. An association must
  119  remit payment of any unused funds to the member within 30 days
  120  after receiving notice that the member’s construction project,
  121  or other reason for which the deposit was collected, is
  122  complete.
  123         Section 3. Subsection (3) of section 720.3033, Florida
  124  Statutes, is amended, and subsection (6) is added to that
  125  section, to read:
  126         720.3033 Officers and directors.—
  127         (3) An officer, a director, or a manager may not solicit,
  128  offer to accept, or accept any thing good or service of value
  129  for which consideration has not been provided for his or her
  130  benefit or for the benefit of a member of his or her immediate
  131  family from any person providing or proposing to provide goods
  132  or services to the association. An officer, a director, or a
  133  manager who knowingly solicits, offers to accept, or accepts any
  134  thing or service of value or kickback for which consideration
  135  has not been provided for his or her own benefit or that of his
  136  or her immediate family, from any person providing or proposing
  137  to provide goods or services to the association is subject to a
  138  civil penalty under s. 718.501(1)(d) and, if applicable, a
  139  criminal penalty as provided in s. 718.111(1)(d). If the board
  140  finds that an officer or a director has violated this
  141  subsection, the board shall immediately remove the officer or
  142  director from office. The vacancy shall be filled according to
  143  law until the end of the officer’s or director’s term of office.
  144  However, an officer, a director, or a manager may accept food to
  145  be consumed at a business meeting with a value of less than $25
  146  per individual or a service or good received in connection with
  147  trade fairs or education programs.
  148         (6)(a)Directors and officers of an association that are
  149  appointed by the developer must disclose to the association
  150  their relationship to the developer each calendar year in which
  151  they serve as a director or an officer. Directors and officers
  152  appointed by the developer must disclose any other activity that
  153  may reasonably be construed to be a conflict of interest
  154  pursuant to paragraph (b).
  155         (b)Directors and officers must disclose to the association
  156  any activity that may be reasonably construed to be a conflict
  157  of interest at least 14 days before voting on an issue or
  158  entering into a contract that is the subject of the conflict. A
  159  rebuttable presumption of a conflict of interest exists if any
  160  of the following acts occur without prior disclosure to the
  161  association:
  162         1.A director or an officer, or a relative of a director or
  163  an officer, enters into a contract for goods or services with
  164  the association.
  165         2.A director or an officer, or a relative of a director or
  166  an officer, holds an interest in a corporation, limited
  167  liability company, partnership, limited liability partnership,
  168  or other business entity that conducts business with the
  169  association or proposes to enter into a contract or other
  170  transaction with the association.
  171         Section 4. Subsections (1), (2), and (5) of section
  172  720.305, Florida Statutes, are amended to read:
  173         720.305 Obligations of members; remedies at law or in
  174  equity; levy of fines and suspension of use rights.—
  175         (1) Each member and the member’s tenants, guests, and
  176  invitees, and each association, are governed by, and must comply
  177  with, this chapter, the governing documents of the community,
  178  and the rules of the association. Actions at law or in equity,
  179  or both, to redress alleged failure or refusal to comply with
  180  these provisions may be brought by the association or by any
  181  member against:
  182         (a) The association;
  183         (b) A member;
  184         (c) Any director or officer of an association who willfully
  185  and knowingly fails to comply with these provisions; and
  186         (d) Any tenants, guests, or invitees occupying a parcel or
  187  using the common areas.
  188  
  189  The prevailing party in any such litigation is entitled to
  190  recover reasonable attorney fees and costs as provided in
  191  paragraph (2)(e). A member prevailing in an action between the
  192  association and the member under this section, in addition to
  193  recovering his or her reasonable attorney fees, may recover
  194  additional amounts as determined by the court to be necessary to
  195  reimburse the member for his or her share of assessments levied
  196  by the association to fund its expenses of the litigation. This
  197  relief does not exclude other remedies provided by law. This
  198  section does not deprive any person of any other available right
  199  or remedy.
  200         (2) An association may levy reasonable fines for violations
  201  of the declaration, association’s bylaws, or reasonable rules of
  202  the association. A fine may not exceed $100 per violation
  203  against any member or any member’s tenant, guest, or invitee for
  204  the failure of the owner of the parcel or its occupant,
  205  licensee, or invitee to comply with any provision of the
  206  declaration, the association bylaws, or reasonable rules of the
  207  association unless otherwise provided in the governing
  208  documents. A fine may be levied by the board for each day of a
  209  continuing violation, with a single notice and opportunity for
  210  hearing, except that the fine may not exceed $1,000 in the
  211  aggregate unless otherwise provided in the governing documents.
  212  A fine of less than $1,000 may not become a lien against a
  213  parcel. In any action to recover a fine, the prevailing party is
  214  entitled to reasonable attorney fees and costs from the
  215  nonprevailing party as determined by the court.
  216         (a) An association may suspend, for a reasonable period of
  217  time, the right of a member, or a member’s tenant, guest, or
  218  invitee, to use common areas and facilities for the failure of
  219  the owner of the parcel or its occupant, licensee, or invitee to
  220  comply with any provision of the declaration, the association
  221  bylaws, or reasonable rules of the association. This paragraph
  222  does not apply to that portion of common areas used to provide
  223  access or utility services to the parcel. A suspension may not
  224  prohibit an owner or tenant of a parcel from having vehicular
  225  and pedestrian ingress to and egress from the parcel, including,
  226  but not limited to, the right to park.
  227         (b) A fine or suspension levied by the board of
  228  administration may not be imposed unless the board first
  229  provides at least 14 days’ notice to the parcel owner at his or
  230  her designated mailing or e-mail address in the association’s
  231  official records and, if applicable, any occupant, licensee, or
  232  invitee of the parcel owner, sought to be fined or suspended and
  233  an opportunity for a hearing before a committee of at least
  234  three members appointed by the board who are not officers,
  235  directors, or employees of the association, or the spouse,
  236  parent, child, brother, or sister of an officer, director, or
  237  employee. The notice must include a description of the alleged
  238  violation, the specific action required to cure such violation,
  239  if applicable, and the date and location of the hearing. A
  240  parcel owner has the right to attend a hearing by telephone or
  241  other electronic means.
  242         (c) If the committee, by majority vote, does not approve a
  243  proposed fine or suspension, the proposed fine or suspension may
  244  not be imposed. The role of the committee is limited to
  245  determining whether to confirm or reject the fine or suspension
  246  levied by the board.
  247         (d)After the hearing, the committee shall provide written
  248  notice to the parcel owner at his or her designated mailing or
  249  e-mail address in the association’s official records and, if
  250  applicable, any occupant, licensee, or invitee of the parcel
  251  owner, of the committee’s findings related to the violation,
  252  including any applicable fines or suspensions that the committee
  253  approved or rejected, and how the parcel owner or any occupant,
  254  licensee, or invitee of the parcel owner may cure the violation,
  255  if applicable.
  256         (e) If the proposed fine or suspension levied by the board
  257  is approved by the committee by a majority vote, the fine
  258  payment is due 5 days after notice of the approved fine required
  259  under paragraph (d) is provided to the parcel owner and, if
  260  applicable, to any occupant, licensee, or invitee of the parcel
  261  owner. The association must provide written notice of such fine
  262  or suspension by mail or hand delivery to the parcel owner and,
  263  if applicable, to any occupant, licensee, or invitee of the
  264  parcel owner.
  265         (5) All suspensions imposed under pursuant to subsection
  266  (3) or subsection (4) must be approved at a properly noticed
  267  board meeting. Upon approval, the board association must send
  268  written notice to notify the parcel owner and, if applicable,
  269  the parcel’s occupant, licensee, or invitee by mail or hand
  270  delivery to the parcel owner’s designated mailing or e-mail
  271  address in the association’s official records.
  272         Section 5. Section 720.3065, Florida Statutes, is created
  273  to read:
  274         720.3065Fraudulent voting activities relating to
  275  association elections; penalties.—Each of the following acts is
  276  a fraudulent voting activity relating to association elections
  277  and constitutes a misdemeanor of the first degree, punishable as
  278  provided in s. 775.082 or s. 775.083:
  279         (1)Willfully and falsely swearing to or affirming an oath
  280  or affirmation, or willfully procuring another person to falsely
  281  swear to or affirm an oath or affirmation, in connection with or
  282  arising out of voting activities.
  283         (2)Perpetrating or attempting to perpetrate, or aiding in
  284  the perpetration of, fraud in connection with a vote cast, to be
  285  cast, or attempted to be cast.
  286         (3)Preventing a member from voting or preventing a member
  287  from voting as he or she intended by fraudulently changing or
  288  attempting to change a ballot, ballot envelope, vote, or voting
  289  certificate of the member.
  290         (4)Menacing, threatening, or using bribery or any other
  291  corruption to attempt, directly or indirectly, to influence,
  292  deceive, or deter a member when the member is voting.
  293         (5)Giving or promising, directly or indirectly, anything
  294  of value to another member with the intent to buy the vote of
  295  that member or another member or to corruptly influence that
  296  member or another member in casting his or her vote. This
  297  subsection does not apply to any food served which is to be
  298  consumed at an election rally or a meeting or to any item of
  299  nominal value which is used as an election advertisement,
  300  including a campaign message designed to be worn by a member.
  301         (6)Using or threatening to use, directly or indirectly,
  302  force, violence, or intimidation or any tactic of coercion or
  303  intimidation to induce or compel a member to vote or refrain
  304  from voting in an election or on a particular ballot measure.
  305         Section 6. This act shall take effect October 1, 2023.
  306  
  307  ================= T I T L E  A M E N D M E N T ================
  308  And the title is amended as follows:
  309         Delete everything before the enacting clause
  310  and insert:
  311                        A bill to be entitled                      
  312         An act relating to homeowners’ associations; providing
  313         a short title; amending s. 720.303, F.S.; requiring
  314         certain officers or directors of an association to be
  315         removed from office under certain circumstances;
  316         specifying how a vacancy on the association board must
  317         be filled; providing restrictions on certain officers
  318         and directors; specifying when an officer or director
  319         is required to be reinstated; requiring an association
  320         to maintain designated addresses as official records;
  321         specifying what constitutes a designated address;
  322         conforming provisions to changes made by the act;
  323         prohibiting certain funds from being comingled with
  324         other association funds; authorizing a member to
  325         request an accounting from an association under
  326         certain circumstances; requiring an association to
  327         provide such accounting and remit unused funds to the
  328         member within specified timeframes; amending s.
  329         720.3033, F.S.; providing criminal and civil penalties
  330         for certain actions by officers, directors, or
  331         managers of an association; requiring directors and
  332         officers of the association to disclose certain
  333         activity and relationships to the association within a
  334         specified timeframe; creating a rebuttable presumption
  335         of a conflict of interest if certain acts occur;
  336         amending s. 720.305, F.S.; restricting certain
  337         attorney fees and fines; specifying the types of
  338         violations for which an association may levy fines;
  339         specifying where certain notice must be delivered;
  340         providing requirements for such notice; authorizing
  341         parcel owners to attend certain hearings by telephone
  342         or other electronic means; requiring a specified
  343         notice after a hearing; conforming provisions to
  344         changes made by the act; creating s. 720.3065, F.S.;
  345         providing criminal penalties for certain fraudulent
  346         voting activities; providing an effective date.