Florida Senate - 2024                        COMMITTEE AMENDMENT
       Bill No. SB 7044
       
       
       
       
       
       
                                Ì730426ÂÎ730426                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/15/2024           .                                
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       The Committee on Rules (Bradley) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 153 - 564
    4  and insert:
    5         Section 3. Subsections (4) and (5), paragraph (f) of
    6  subsection (6), and paragraph (a) of subsection (7) of section
    7  720.303, Florida Statutes, are amended, and subsection (13) is
    8  added to that section, to read:
    9         720.303 Association powers and duties; meetings of board;
   10  official records; budgets; financial reporting; association
   11  funds; recalls.—
   12         (4) OFFICIAL RECORDS.—
   13         (a) The association shall maintain each of the following
   14  items, when applicable, for at least 7 years, unless the
   15  governing documents of the association require a longer period
   16  of time, which constitute the official records of the
   17  association:
   18         1.(a) Copies of any plans, specifications, permits, and
   19  warranties related to improvements constructed on the common
   20  areas or other property that the association is obligated to
   21  maintain, repair, or replace.
   22         2.(b) A copy of the bylaws of the association and of each
   23  amendment to the bylaws.
   24         3.(c) A copy of the articles of incorporation of the
   25  association and of each amendment thereto.
   26         4.(d) A copy of the declaration of covenants and a copy of
   27  each amendment thereto.
   28         5.(e) A copy of the current rules of the homeowners’
   29  association.
   30         6.(f) The minutes of all meetings of the board of directors
   31  and of the members, which minutes must be retained for at least
   32  7 years.
   33         7.(g) A current roster of all members and their designated
   34  mailing addresses and parcel identifications. A member’s
   35  designated mailing address is the member’s property address,
   36  unless the member has sent written notice to the association
   37  requesting that a different mailing address be used for all
   38  required notices. The association shall also maintain the e-mail
   39  addresses and the facsimile numbers designated by members for
   40  receiving notice sent by electronic transmission of those
   41  members consenting to receive notice by electronic transmission.
   42  A member’s e-mail address is the e-mail address the member
   43  provided when consenting in writing to receiving notice by
   44  electronic transmission, unless the member has sent written
   45  notice to the association requesting that a different e-mail
   46  address be used for all required notices. The e-mail addresses
   47  and facsimile numbers provided by members to receive notice by
   48  electronic transmission must be removed from association records
   49  when the member revokes consent to receive notice by electronic
   50  transmission. However, the association is not liable for an
   51  erroneous disclosure of the e-mail address or the facsimile
   52  number for receiving electronic transmission of notices.
   53         8.(h) All of the association’s insurance policies or a copy
   54  thereof, which policies must be retained for at least 7 years.
   55         9.(i) A current copy of all contracts to which the
   56  association is a party, including, without limitation, any
   57  management agreement, lease, or other contract under which the
   58  association has any obligation or responsibility. Bids received
   59  by the association for work to be performed are must also be
   60  considered official records and must be kept for a period of 1
   61  year.
   62         10.(j) The financial and accounting records of the
   63  association, kept according to good accounting practices. All
   64  financial and accounting records must be maintained for a period
   65  of at least 7 years. The financial and accounting records must
   66  include:
   67         a.1. Accurate, itemized, and detailed records of all
   68  receipts and expenditures.
   69         b.2. A current account and a periodic statement of the
   70  account for each member, designating the name and current
   71  address of each member who is obligated to pay assessments, the
   72  due date and amount of each assessment or other charge against
   73  the member, the date and amount of each payment on the account,
   74  and the balance due.
   75         c.3. All tax returns, financial statements, and financial
   76  reports of the association.
   77         d.4. Any other records that identify, measure, record, or
   78  communicate financial information.
   79         11.(k) A copy of the disclosure summary described in s.
   80  720.401(1).
   81         12.(l) Ballots, sign-in sheets, voting proxies, and all
   82  other papers and electronic records relating to voting by parcel
   83  owners, which must be maintained for at least 1 year after the
   84  date of the election, vote, or meeting.
   85         13.(m) All affirmative acknowledgments made pursuant to s.
   86  720.3085(3)(c)3.
   87         14.(n) All other written records of the association not
   88  specifically included in this subsection which are related to
   89  the operation of the association.
   90         (b)1.By January 1, 2025, an association with 100 or more
   91  parcels shall post a current digital copy of the documents
   92  specified in subparagraph 3. on its website or make such
   93  documents available through an application that can be
   94  downloaded on a mobile device.
   95         2.The association’s website or application must be
   96  accessible through the Internet and must contain a subpage, web
   97  portal, or other protected electronic location that is
   98  inaccessible to the general public and accessible only to parcel
   99  owners and employees of the association.
  100         3. A current copy of the following documents must be posted
  101  in digital format on the association’s website or application:
  102         a. The articles of incorporation of the association and
  103  each amendment thereto.
  104         b. The recorded bylaws of the association and each
  105  amendment thereto.
  106         c. The declaration of covenants and a copy of each
  107  amendment thereto.
  108         d. The current rules of the association.
  109         e. A list of all current executory contracts or documents
  110  to which the association is a party or under which the
  111  association or the unit owners have an obligation or
  112  responsibility and, after bidding for the related materials,
  113  equipment, or services has closed, a list of bids received by
  114  the association within the past year.
  115         f. The annual budget required by subsection (6) and any
  116  proposed budget to be considered at the annual meeting.
  117         g. The financial report required by subsection (7) and any
  118  monthly income or expense statement to be considered at a
  119  meeting.
  120         h. The association’s current insurance policies.
  121         i. The certification of each director required by s.
  122  720.3033(1)(a).
  123         j. All contracts or transactions between the association
  124  and any director, officer, corporation, firm, or association
  125  that is not an affiliated homeowners’ association or any other
  126  entity in which an association director is also a director or
  127  officer and financially interested.
  128         k. Any contract or document regarding a conflict of
  129  interest or possible conflict of interest as provided in ss.
  130  468.436(2)(b)6. and 720.3033(2).
  131         l. Notice of any meeting of members and the agenda for the
  132  meeting, as required by s. 720.306, no later than 14 days before
  133  the meeting. The notice must be posted in plain view on the
  134  homepage of the website or application, or on a separate subpage
  135  of the website or application labeled “Notices” which is
  136  conspicuously visible and linked from the homepage. The
  137  association must also post on its website or application any
  138  document to be considered and voted on by the owners during the
  139  meeting or any document listed on the agenda at least 7 days
  140  before the meeting at which the document or the information
  141  within the document will be considered.
  142         m. Notice of any board meeting, the agenda, and any other
  143  document required for the meeting as required by subsection (3),
  144  which must be posted no later than the date required for notice
  145  under subsection (3).
  146         4.Upon written request by a parcel owner, the association
  147  must provide the parcel owner with a username and password and
  148  access to the protected sections of the association’s website or
  149  application which contains the official documents of the
  150  association.
  151         5.The association shall ensure that the information and
  152  records described in paragraph (5)(d) which are not allowed to
  153  be accessible to parcel owners are not posted on the
  154  association’s website or application. If protected information
  155  or information restricted from being accessible to parcel owners
  156  is included in documents that are required to be posted on the
  157  association’s website or application, the association must
  158  ensure the information is redacted before posting the documents.
  159  Notwithstanding the foregoing, the association or its authorized
  160  agent is not liable for disclosing information that is protected
  161  or restricted under paragraph (5)(d) unless such disclosure was
  162  made with a knowing or intentional disregard of the protected or
  163  restricted nature of such information.
  164         (c)The association shall adopt written rules governing the
  165  method or policy by which the official records of the
  166  association are to be retained and for how long such records
  167  must be retained pursuant to paragraph (a). Such information
  168  must be made available to the parcel owners through the
  169  association’s website or application.
  170         (5) INSPECTION AND COPYING OF RECORDS.—
  171         (a) Unless otherwise provided by law or the governing
  172  documents of the association, the official records shall be
  173  maintained within the state for at least 7 years and must shall
  174  be made available to a parcel owner for inspection or
  175  photocopying within 45 miles of the community or within the
  176  county in which the association is located within 10 business
  177  days after receipt by the board or its designee of a written
  178  request. This subsection may be complied with by having a copy
  179  of the official records available for inspection or copying in
  180  the community or, at the option of the association, by making
  181  the records available to a parcel owner electronically via the
  182  Internet or by allowing the records to be viewed in electronic
  183  format on a computer screen and printed upon request. If the
  184  association has a photocopy machine available where the records
  185  are maintained, it must provide parcel owners with copies on
  186  request during the inspection if the entire request is limited
  187  to no more than 25 pages. An association shall allow a member or
  188  his or her authorized representative to use a portable device,
  189  including a smartphone, tablet, portable scanner, or any other
  190  technology capable of scanning or taking photographs, to make an
  191  electronic copy of the official records in lieu of the
  192  association’s providing the member or his or her authorized
  193  representative with a copy of such records. The association may
  194  not charge a fee to a member or his or her authorized
  195  representative for the use of a portable device.
  196         (b)(a) The failure of an association to provide access to
  197  the records within 10 business days after receipt of a written
  198  request submitted by certified mail, return receipt requested,
  199  creates a rebuttable presumption that the association willfully
  200  failed to comply with this subsection.
  201         (c)(b) A member who is denied access to official records is
  202  entitled to the actual damages or minimum damages for the
  203  association’s willful failure to comply with this subsection.
  204  The minimum damages are to be $50 per calendar day up to 10
  205  days, the calculation to begin on the 11th business day after
  206  receipt of the written request.
  207         (d) Any director or member of the board or association or a
  208  community association manager who knowingly, willfully, and
  209  repeatedly violates paragraph (a), with the intent of causing
  210  harm to the association or one or more of its members, commits a
  211  misdemeanor of the second degree, punishable as provided in s.
  212  775.082 or s. 775.083. For purposes of this paragraph, the term
  213  “repeatedly” means two or more violations within a 12-month
  214  period.
  215         (e) Any person who knowingly and intentionally defaces or
  216  destroys accounting records during the period in which such
  217  records are required to be maintained, or who knowingly or
  218  intentionally fails to create or maintain accounting records
  219  that are required to be created or maintained, with the intent
  220  of causing harm to the association or one or more of its
  221  members, commits a misdemeanor of the first degree, punishable
  222  as provided in s. 775.082 or s. 775.083.
  223         (f) Any person who willfully and knowingly refuses to
  224  release or otherwise produce association records with the intent
  225  to avoid or escape detection, arrest, trial, or punishment for
  226  the commission of a crime, or to assist another person with such
  227  avoidance or escape, commits a felony of the third degree,
  228  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  229         (g)(c) The association may adopt reasonable written rules
  230  governing the frequency, time, location, notice, records to be
  231  inspected, and manner of inspections, but may not require a
  232  parcel owner to demonstrate any proper purpose for the
  233  inspection, state any reason for the inspection, or limit a
  234  parcel owner’s right to inspect records to less than one 8-hour
  235  business day per month. The association may impose fees to cover
  236  the costs of providing copies of the official records, including
  237  the costs of copying and the costs required for personnel to
  238  retrieve and copy the records if the time spent retrieving and
  239  copying the records exceeds one-half hour and if the personnel
  240  costs do not exceed $20 per hour. Personnel costs may not be
  241  charged for records requests that result in the copying of 25 or
  242  fewer pages. The association may charge up to 25 cents per page
  243  for copies made on the association’s photocopier. If the
  244  association does not have a photocopy machine available where
  245  the records are kept, or if the records requested to be copied
  246  exceed 25 pages in length, the association may have copies made
  247  by an outside duplicating service and may charge the actual cost
  248  of copying, as supported by the vendor invoice. The association
  249  shall maintain an adequate number of copies of the recorded
  250  governing documents, to ensure their availability to members and
  251  prospective members. Notwithstanding this paragraph, the
  252  following records are not accessible to members or parcel
  253  owners:
  254         1. Any record protected by the lawyer-client privilege as
  255  described in s. 90.502 and any record protected by the work
  256  product privilege, including, but not limited to, a record
  257  prepared by an association attorney or prepared at the
  258  attorney’s express direction which reflects a mental impression,
  259  conclusion, litigation strategy, or legal theory of the attorney
  260  or the association and which was prepared exclusively for civil
  261  or criminal litigation or for adversarial administrative
  262  proceedings or which was prepared in anticipation of such
  263  litigation or proceedings until the conclusion of the litigation
  264  or proceedings.
  265         2. Information obtained by an association in connection
  266  with the approval of the lease, sale, or other transfer of a
  267  parcel.
  268         3. Information an association obtains in a gated community
  269  in connection with guests’ visits to parcel owners or community
  270  residents.
  271         4. Personnel records of association or management company
  272  employees, including, but not limited to, disciplinary, payroll,
  273  health, and insurance records. For purposes of this
  274  subparagraph, the term “personnel records” does not include
  275  written employment agreements with an association or management
  276  company employee or budgetary or financial records that indicate
  277  the compensation paid to an association or management company
  278  employee.
  279         5. Medical records of parcel owners or community residents.
  280         6. Social security numbers, driver license numbers, credit
  281  card numbers, electronic mailing addresses, telephone numbers,
  282  facsimile numbers, emergency contact information, any addresses
  283  for a parcel owner other than as provided for association notice
  284  requirements, and other personal identifying information of any
  285  person, excluding the person’s name, parcel designation, mailing
  286  address, and property address. Notwithstanding the restrictions
  287  in this subparagraph, an association may print and distribute to
  288  parcel owners a directory containing the name, parcel address,
  289  and all telephone numbers of each parcel owner. However, an
  290  owner may exclude his or her telephone numbers from the
  291  directory by so requesting in writing to the association. An
  292  owner may consent in writing to the disclosure of other contact
  293  information described in this subparagraph. The association is
  294  not liable for the disclosure of information that is protected
  295  under this subparagraph if the information is included in an
  296  official record of the association and is voluntarily provided
  297  by an owner and not requested by the association.
  298         7. Any electronic security measure that is used by the
  299  association to safeguard data, including passwords.
  300         8. The software and operating system used by the
  301  association which allows the manipulation of data, even if the
  302  owner owns a copy of the same software used by the association.
  303  The data is part of the official records of the association.
  304         9. All affirmative acknowledgments made pursuant to s.
  305  720.3085(3)(c)3.
  306         (h)(d) The association or its authorized agent is not
  307  required to provide a prospective purchaser or lienholder with
  308  information about the residential subdivision or the association
  309  other than information or documents required by this chapter to
  310  be made available or disclosed. The association or its
  311  authorized agent may charge a reasonable fee to the prospective
  312  purchaser or lienholder or the current parcel owner or member
  313  for providing good faith responses to requests for information
  314  by or on behalf of a prospective purchaser or lienholder, other
  315  than that required by law, if the fee does not exceed $150 plus
  316  the reasonable cost of photocopying and any attorney fees
  317  incurred by the association in connection with the response.
  318         (i) If an association receives a subpoena for records from
  319  a law enforcement agency, the association must provide a copy of
  320  such records or otherwise make the records available for
  321  inspection and copying to a law enforcement agency within 5
  322  business days after receipt of the subpoena, unless otherwise
  323  specified by the law enforcement agency or subpoena. An
  324  association must assist a law enforcement agency in its
  325  investigation to the extent permissible by law.
  326         (6) BUDGETS.—
  327         (f) After one or more reserve accounts are established, the
  328  membership of the association, upon a majority vote at a meeting
  329  at which a quorum is present, may provide for no reserves or
  330  less reserves than required by this section. If a meeting of the
  331  parcel unit owners has been called to determine whether to waive
  332  or reduce the funding of reserves and such result is not
  333  achieved or a quorum is not present, the reserves as included in
  334  the budget go into effect. After the turnover, the developer may
  335  vote its voting interest to waive or reduce the funding of
  336  reserves. Any vote taken pursuant to this subsection to waive or
  337  reduce reserves is applicable only to one budget year.
  338         (7) FINANCIAL REPORTING.—Within 90 days after the end of
  339  the fiscal year, or annually on the date provided in the bylaws,
  340  the association shall prepare and complete, or contract with a
  341  third party for the preparation and completion of, a financial
  342  report for the preceding fiscal year. Within 21 days after the
  343  final financial report is completed by the association or
  344  received from the third party, but not later than 120 days after
  345  the end of the fiscal year or other date as provided in the
  346  bylaws, the association shall, within the time limits set forth
  347  in subsection (5), provide each member with a copy of the annual
  348  financial report or a written notice that a copy of the
  349  financial report is available upon request at no charge to the
  350  member. Financial reports shall be prepared as follows:
  351         (a) An association that meets the criteria of this
  352  paragraph shall prepare or cause to be prepared a complete set
  353  of financial statements in accordance with generally accepted
  354  accounting principles as adopted by the Board of Accountancy.
  355  The financial statements shall be based upon the association’s
  356  total annual revenues, as follows:
  357         1. An association with total annual revenues of $150,000 or
  358  more, but less than $300,000, shall prepare compiled financial
  359  statements.
  360         2. An association with total annual revenues of at least
  361  $300,000, but less than $500,000, shall prepare reviewed
  362  financial statements.
  363         3. An association with total annual revenues of $500,000 or
  364  more shall prepare audited financial statements.
  365         4. An association with 1,000 or more parcels shall prepare
  366  audited financial statements, notwithstanding the association’s
  367  total annual revenues.
  368         (d) If approved by a majority of the voting interests
  369  present at a properly called meeting of the association, an
  370  association may prepare or cause to be prepared:
  371         1. A report of cash receipts and expenditures in lieu of a
  372  compiled, reviewed, or audited financial statement;
  373         2. A report of cash receipts and expenditures or a compiled
  374  financial statement in lieu of a reviewed or audited financial
  375  statement; or
  376         3. A report of cash receipts and expenditures, a compiled
  377  financial statement, or a reviewed financial statement in lieu
  378  of an audited financial statement.
  379  
  380  An association may not prepare a financial statement pursuant to
  381  this paragraph for consecutive fiscal years.
  382         (13) DEBIT CARDS.—
  383         (a) An association and its officers, directors, employees,
  384  and agents may not use a debit card issued in the name of the
  385  association, or billed directly to the association, for the
  386  payment of any association expense.
  387         (b) A person who uses a debit card issued in the name of
  388  the association, or billed directly to the association, for any
  389  expense that is not a lawful obligation of the association
  390  commits theft under s. 812.014.
  391  
  392  For the purposes of this subsection, the term “lawful obligation
  393  of the association” means an obligation that has been properly
  394  preapproved by the board and is reflected in the meeting minutes
  395  or the written budget.
  396         Section 4. Subsections (1), (3), and (4) of section
  397  720.3033, Florida Statutes, are amended to read:
  398         720.3033 Officers and directors.—
  399         (1)(a) Within 90 days after being elected or appointed to
  400  the board, each director shall certify in writing to the
  401  secretary of the association that he or she has read the
  402  association’s declaration of covenants, articles of
  403  incorporation, bylaws, and current written rules and policies;
  404  that he or she will work to uphold such documents and policies
  405  to the best of his or her ability; and that he or she will
  406  faithfully discharge his or her fiduciary responsibility to the
  407  association’s members. Within 90 days after being elected or
  408  appointed to the board, in lieu of such written certification,
  409  the newly elected or appointed director must may submit a
  410  certificate of having satisfactorily completed the educational
  411  curriculum administered by a department-approved, division
  412  approved education provider.
  413         1.The newly elected or appointed director must complete
  414  the department-approved education for newly elected or appointed
  415  directors within 90 days after being elected or appointed.
  416         2. The certificate of completion is valid for a maximum of
  417  4 years.
  418         3.At least every 4 years, a director must complete the
  419  education specific to newly elected or appointed directors.
  420         4.The department-approved educational curriculum specific
  421  to newly elected or appointed directors must include training
  422  relating to financial literacy and transparency, recordkeeping,
  423  levying of fines, and notice and meeting requirements.
  424         5.In addition to the educational curriculum specific to
  425  newly elected or appointed directors:
  426         a.A director of an association that has fewer than 2,500
  427  parcels must complete at least 4 hours of continuing education
  428  annually.
  429         b.A director of an association that has 2,500 parcels or
  430  more must complete at least 8 hours of continuing education
  431  annually within 1 year before or 90 days after the date of
  432  election or appointment.
  433         (b) The written certification or educational certificate is
  434  valid for the uninterrupted tenure of the director on the board.
  435  A director who does not timely file the written certification or
  436  educational certificate is shall be suspended from the board
  437  until he or she complies with the requirement. The board may
  438  temporarily fill the vacancy during the period of suspension.
  439         (c) The association shall retain each director’s written
  440  certification or educational certificate for inspection by the
  441  members for 5 years after the director’s election. However, the
  442  failure to have the written certification or educational
  443  certificate on file does not affect the validity of any board
  444  action.
  445         (d)The department shall adopt rules to implement and
  446  administer the educational curriculum and continuing education
  447  requirements under this subsection.
  448         (3) An officer, a director, or a manager may not solicit,
  449  offer to accept, or accept a kickback. As used in this
  450  subsection, the term “kickback” means any thing or service of
  451  value for which consideration has not been provided for an
  452  officer’s, a director’s, or a manager’s his or her benefit or
  453  for the benefit of a member of his or her immediate family from
  454  any person providing or proposing to provide goods or services
  455  to the association. An officer, a director, or a manager who
  456  knowingly solicits, offers to accept, or accepts a any thing or
  457  service of value or kickback commits a felony of the third
  458  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  459  775.084, and for which consideration has not been provided for
  460  his or her own benefit or that of his or her immediate family
  461  from any person providing or proposing to provide goods or
  462  services to the association is subject to monetary damages under
  463  s. 617.0834. If the board finds that an officer or a director
  464  has violated this subsection, the board shall immediately remove
  465  the officer or director from office. The
  466  
  467  ================= T I T L E  A M E N D M E N T ================
  468  And the title is amended as follows:
  469         Delete lines 14 - 61
  470  and insert:
  471         association to maintain certain documents for a
  472         specified timeframe; requiring certain associations to
  473         post certain documents on their website or make them
  474         available through an application on a mobile device;
  475         providing construction; requiring an association to
  476         provide certain information to parcel owners upon
  477         written request; requiring an association to ensure
  478         certain information and records are not accessible on
  479         the website or application; providing that an
  480         association or its agent is not liable for the
  481         disclosure of certain information; requiring an
  482         association to adopt certain rules; providing criminal
  483         penalties for directors or members of the board or
  484         association and community association managers who
  485         knowingly, willfully, and repeatedly fail to maintain
  486         and make available specific records; defining the term
  487         “repeatedly”; providing criminal penalties for persons
  488         who knowingly and intentionally deface or destroy, or
  489         intentionally fail to maintain, specified accounting
  490         records; providing criminal penalties for persons who
  491         willfully and intentionally refuse to release certain
  492         records for specific purposes; requiring an
  493         association to provide or make available subpoenaed
  494         records within a certain timeframe; requiring an
  495         association to assist in a law enforcement
  496         investigation as allowed by law; requiring certain
  497         associations to prepare audited financial statements;
  498         prohibiting an association from preparing financial
  499         statements for consecutive fiscal years; prohibiting
  500         an association and its officers, directors, employees,
  501         and agents from using a debit card issued in the name
  502         of the association; providing that persons who violate
  503         such prohibition commit theft under s. 812.014, F.S.,
  504         punishable as provided in that section; defining the
  505         term “lawful obligation of the association”; making
  506         technical changes; amending s. 720.3033, F.S.;
  507         deleting a requirement that a director certify in
  508         writing to the secretary of the association that he or
  509         she has read certain documents; requiring newly
  510         elected or appointed directors to complete certain
  511         educational curriculum approved by the department
  512         within a certain time period; requiring a director to
  513         retake the educational curriculum after a certain time
  514         period; providing subject matter for the educational
  515         curriculum; requiring certain directors of an
  516         association to annually complete a minimum amount of
  517         continuing education; requiring the department to
  518         adopt rules; prohibiting officers, directors, or
  519         managers of an association from soliciting, offering
  520         to accept, or accepting a kickback; defining the term
  521         “kickback”; providing criminal penalties for officers,
  522         directors, and managers of an association who accept
  523         bribes or kickbacks; making