Florida Senate - 2023 CS for SB 1114 By the Committee on Regulated Industries; and Senator Rodriguez 580-03527-23 20231114c1 1 A bill to be entitled 2 An act relating to homeowners associations; providing 3 a short title; amending s. 720.303, F.S.; requiring 4 certain officers or directors of an association to be 5 removed from office under certain circumstances; 6 specifying how a vacancy on the association board must 7 be filled; providing restrictions on certain officers 8 and directors; specifying when an officer or director 9 is required to be reinstated; requiring an association 10 to maintain designated addresses as official records; 11 specifying what constitutes a designated address; 12 conforming provisions to changes made by the act; 13 prohibiting certain funds from being comingled with 14 other association funds; authorizing a member to 15 request an accounting from an association under 16 certain circumstances; requiring an association to 17 provide such accounting and remit unused funds to the 18 member within specified timeframes; amending s. 19 720.3033, F.S.; providing criminal and civil penalties 20 for certain actions by officers, directors, or 21 managers of an association; requiring directors and 22 officers of the association to disclose certain 23 activity and relationships to the association within a 24 specified timeframe; creating a rebuttable presumption 25 of a conflict of interest if certain acts occur; 26 amending s. 720.305, F.S.; restricting certain 27 attorney fees and fines; specifying the types of 28 violations for which an association may levy fines; 29 specifying where certain notice must be delivered; 30 providing requirements for such notice; authorizing 31 parcel owners to attend certain hearings by telephone 32 or other electronic means; requiring a specified 33 notice after a hearing; conforming provisions to 34 changes made by the act; creating s. 720.3065, F.S.; 35 providing criminal penalties for certain fraudulent 36 voting activities; providing an effective date. 37 38 Be It Enacted by the Legislature of the State of Florida: 39 40 Section 1.This act may be cited as the Homeowners 41 Associations Bill of Rights. 42 Section 2.Subsection (1) and paragraph (g) of subsection 43 (4) of section 720.303, Florida Statutes, are amended, and 44 paragraph (d) is added to subsection (8) of that section, to 45 read: 46 720.303Association powers and duties; meetings of board; 47 official records; budgets; financial reporting; association 48 funds; recalls. 49 (1)POWERS AND DUTIES. 50 (a)An association which operates a community as defined in 51 s. 720.301, must be operated by an association that is a Florida 52 corporation. After October 1, 1995, the association must be 53 incorporated and the initial governing documents must be 54 recorded in the official records of the county in which the 55 community is located. An association may operate more than one 56 community. 57 (b)1.The officers and directors of an association have a 58 fiduciary relationship to the members who are served by the 59 association. 60 2.An officer or a director charged by information or 61 indictment with any of the following crimes must be removed from 62 office, and the vacancy must be filled as provided in s. 63 720.306(9) until the end of the officers or directors period 64 of suspension or the end of his or her term of office, whichever 65 occurs first: 66 a.Forgery of a ballot envelope or voting certificate used 67 in a homeowners association election as provided in s. 831.01. 68 b.Theft or embezzlement of funds of a homeowners 69 association as provided in s. 812.014. 70 c.Destruction of or the refusal to allow inspection or 71 copying of an official record of a homeowners association that 72 is accessible to parcel owners within the time periods required 73 by general law in furtherance of any crime. Such act constitutes 74 tampering with physical evidence as provided in s. 918.13. 75 d.Obstruction of justice under chapter 843. 76 3.If a criminal charge is pending against the officer or 77 director, he or she may not be appointed or elected to a 78 position as an officer or a director of any association and may 79 not have access to the official records of any association, 80 except pursuant to a court order. However, if the charges are 81 resolved without a finding of guilt, the officer or director 82 must be reinstated for the remainder of his or her term of 83 office, if any. 84 (c)The powers and duties of an association include those 85 set forth in this chapter and, except as expressly limited or 86 restricted in this chapter, those set forth in the governing 87 documents. 88 (d)After control of the association is obtained by members 89 other than the developer, the association may institute, 90 maintain, settle, or appeal actions or hearings in its name on 91 behalf of all members concerning matters of common interest to 92 the members, including, but not limited to, the common areas; 93 roof or structural components of a building, or other 94 improvements for which the association is responsible; 95 mechanical, electrical, or plumbing elements serving an 96 improvement or building for which the association is 97 responsible; representations of the developer pertaining to any 98 existing or proposed commonly used facility; and protesting ad 99 valorem taxes on commonly used facilities. The association may 100 defend actions in eminent domain or bring inverse condemnation 101 actions. Before commencing litigation against any party in the 102 name of the association involving amounts in controversy in 103 excess of $100,000, the association must obtain the affirmative 104 approval of a majority of the voting interests at a meeting of 105 the membership at which a quorum has been attained. This 106 paragraph subsection does not limit any statutory or common-law 107 right of any individual member or class of members to bring any 108 action without participation by the association. 109 (e)A member does not have authority to act for the 110 association by virtue of being a member. An association may have 111 more than one class of members and may issue membership 112 certificates. 113 (f)An association of 15 or fewer parcel owners may enforce 114 only the requirements of those deed restrictions established 115 prior to the purchase of each parcel upon an affected parcel 116 owner or owners. 117 (4)OFFICIAL RECORDS.The association shall maintain each 118 of the following items, when applicable, which constitute the 119 official records of the association: 120 (g)A current roster of all members and their designated 121 mailing addresses and parcel identifications. A members 122 designated mailing address is the members property address, 123 unless the member has sent written notice to the association 124 requesting that a different mailing address be used for all 125 required notices. The association shall also maintain the e-mail 126 electronic mailing addresses and the facsimile numbers 127 designated by members for receiving notice sent by electronic 128 transmission of those members consenting to receive notice by 129 electronic transmission. A members e-mail address is the e-mail 130 address the member provided when consenting in writing to 131 receiving notice by electronic transmission, unless the member 132 has sent written notice to the association requesting that a 133 different e-mail address be used for all required notices. The 134 e-mail electronic mailing addresses and facsimile numbers 135 provided by members unit owners to receive notice by electronic 136 transmission must shall be removed from association records when 137 the member revokes consent to receive notice by electronic 138 transmission is revoked. However, the association is not liable 139 for an erroneous disclosure of the e-mail electronic mail 140 address or the facsimile number for receiving electronic 141 transmission of notices. 142 (8)ASSOCIATION FUNDS; COMMINGLING. 143 (d)If an association collects a deposit from a member for 144 any reason, including to pay for expenses that may be incurred 145 as a result of construction on a members parcel, such funds 146 must be maintained separately and may not be comingled with any 147 other association funds. Upon completion of the members 148 construction project, or other reason for which the deposit was 149 collected, the member may request an accounting from the 150 association of his or her funds that were deposited, and the 151 association must provide such accounting to the member within 7 152 days after receiving the members request. An association must 153 remit payment of any unused funds to the member within 30 days 154 after receiving notice that the members construction project, 155 or other reason for which the deposit was collected, is 156 complete. 157 Section 3.Subsection (3) of section 720.3033, Florida 158 Statutes, is amended, and subsection (6) is added to that 159 section, to read: 160 720.3033Officers and directors. 161 (3)An officer, a director, or a manager may not solicit, 162 offer to accept, or accept any thing good or service of value 163 for which consideration has not been provided for his or her 164 benefit or for the benefit of a member of his or her immediate 165 family from any person providing or proposing to provide goods 166 or services to the association. An officer, a director, or a 167 manager who knowingly solicits, offers to accept, or accepts any 168 thing or service of value or kickback for which consideration 169 has not been provided for his or her own benefit or that of his 170 or her immediate family, from any person providing or proposing 171 to provide goods or services to the association is subject to a 172 civil penalty under s. 718.501(1)(d) and, if applicable, a 173 criminal penalty as provided in s. 718.111(1)(d). If the board 174 finds that an officer or a director has violated this 175 subsection, the board shall immediately remove the officer or 176 director from office. The vacancy shall be filled according to 177 law until the end of the officers or directors term of office. 178 However, an officer, a director, or a manager may accept food to 179 be consumed at a business meeting with a value of less than $25 180 per individual or a service or good received in connection with 181 trade fairs or education programs. 182 (6)(a)Directors and officers of an association that are 183 appointed by the developer must disclose to the association 184 their relationship to the developer each calendar year in which 185 they serve as a director or an officer. Directors and officers 186 appointed by the developer must disclose any other activity that 187 may reasonably be construed to be a conflict of interest 188 pursuant to paragraph (b). 189 (b)Directors and officers must disclose to the association 190 any activity that may be reasonably construed to be a conflict 191 of interest at least 14 days before voting on an issue or 192 entering into a contract that is the subject of the conflict. A 193 rebuttable presumption of a conflict of interest exists if any 194 of the following acts occur without prior disclosure to the 195 association: 196 1.A director or an officer, or a relative of a director or 197 an officer, enters into a contract for goods or services with 198 the association. 199 2.A director or an officer, or a relative of a director or 200 an officer, holds an interest in a corporation, limited 201 liability company, partnership, limited liability partnership, 202 or other business entity that conducts business with the 203 association or proposes to enter into a contract or other 204 transaction with the association. 205 Section 4.Subsections (1), (2), and (5) of section 206 720.305, Florida Statutes, are amended to read: 207 720.305Obligations of members; remedies at law or in 208 equity; levy of fines and suspension of use rights. 209 (1)Each member and the members tenants, guests, and 210 invitees, and each association, are governed by, and must comply 211 with, this chapter, the governing documents of the community, 212 and the rules of the association. Actions at law or in equity, 213 or both, to redress alleged failure or refusal to comply with 214 these provisions may be brought by the association or by any 215 member against: 216 (a)The association; 217 (b)A member; 218 (c)Any director or officer of an association who willfully 219 and knowingly fails to comply with these provisions; and 220 (d)Any tenants, guests, or invitees occupying a parcel or 221 using the common areas. 222 223 The prevailing party in any such litigation is entitled to 224 recover reasonable attorney fees and costs as provided in 225 paragraph (2)(e). A member prevailing in an action between the 226 association and the member under this section, in addition to 227 recovering his or her reasonable attorney fees, may recover 228 additional amounts as determined by the court to be necessary to 229 reimburse the member for his or her share of assessments levied 230 by the association to fund its expenses of the litigation. This 231 relief does not exclude other remedies provided by law. This 232 section does not deprive any person of any other available right 233 or remedy. 234 (2)An association may levy reasonable fines for violations 235 of the declaration, associations bylaws, or reasonable rules of 236 the association. A fine may not exceed $100 per violation 237 against any member or any members tenant, guest, or invitee for 238 the failure of the owner of the parcel or its occupant, 239 licensee, or invitee to comply with any provision of the 240 declaration, the association bylaws, or reasonable rules of the 241 association unless otherwise provided in the governing 242 documents. A fine may be levied by the board for each day of a 243 continuing violation, with a single notice and opportunity for 244 hearing, except that the fine may not exceed $1,000 in the 245 aggregate unless otherwise provided in the governing documents. 246 A fine of less than $1,000 may not become a lien against a 247 parcel. In any action to recover a fine, the prevailing party is 248 entitled to reasonable attorney fees and costs from the 249 nonprevailing party as determined by the court. 250 (a)An association may suspend, for a reasonable period of 251 time, the right of a member, or a members tenant, guest, or 252 invitee, to use common areas and facilities for the failure of 253 the owner of the parcel or its occupant, licensee, or invitee to 254 comply with any provision of the declaration, the association 255 bylaws, or reasonable rules of the association. This paragraph 256 does not apply to that portion of common areas used to provide 257 access or utility services to the parcel. A suspension may not 258 prohibit an owner or tenant of a parcel from having vehicular 259 and pedestrian ingress to and egress from the parcel, including, 260 but not limited to, the right to park. 261 (b)A fine or suspension levied by the board of 262 administration may not be imposed unless the board first 263 provides at least 14 days notice to the parcel owner at his or 264 her designated mailing or e-mail address in the associations 265 official records and, if applicable, any occupant, licensee, or 266 invitee of the parcel owner, sought to be fined or suspended and 267 an opportunity for a hearing before a committee of at least 268 three members appointed by the board who are not officers, 269 directors, or employees of the association, or the spouse, 270 parent, child, brother, or sister of an officer, director, or 271 employee. The notice must include a description of the alleged 272 violation, the specific action required to cure such violation, 273 if applicable, and the date and location of the hearing. A 274 parcel owner has the right to attend a hearing by telephone or 275 other electronic means. 276 (c)If the committee, by majority vote, does not approve a 277 proposed fine or suspension, the proposed fine or suspension may 278 not be imposed. The role of the committee is limited to 279 determining whether to confirm or reject the fine or suspension 280 levied by the board. 281 (d)After the hearing, the committee shall provide written 282 notice to the parcel owner at his or her designated mailing or 283 e-mail address in the associations official records and, if 284 applicable, any occupant, licensee, or invitee of the parcel 285 owner, of the committees findings related to the violation, 286 including any applicable fines or suspensions that the committee 287 approved or rejected, and how the parcel owner or any occupant, 288 licensee, or invitee of the parcel owner may cure the violation, 289 if applicable. 290 (e)If the proposed fine or suspension levied by the board 291 is approved by the committee by a majority vote, the fine 292 payment is due 5 days after notice of the approved fine required 293 under paragraph (d) is provided to the parcel owner and, if 294 applicable, to any occupant, licensee, or invitee of the parcel 295 owner. The association must provide written notice of such fine 296 or suspension by mail or hand delivery to the parcel owner and, 297 if applicable, to any occupant, licensee, or invitee of the 298 parcel owner. 299 (5)All suspensions imposed under pursuant to subsection 300 (3) or subsection (4) must be approved at a properly noticed 301 board meeting. Upon approval, the board association must send 302 written notice to notify the parcel owner and, if applicable, 303 the parcels occupant, licensee, or invitee by mail or hand 304 delivery to the parcel owners designated mailing or e-mail 305 address in the associations official records. 306 Section 5.Section 720.3065, Florida Statutes, is created 307 to read: 308 720.3065Fraudulent voting activities relating to 309 association elections; penalties.Each of the following acts is 310 a fraudulent voting activity relating to association elections 311 and constitutes a misdemeanor of the first degree, punishable as 312 provided in s. 775.082 or s. 775.083: 313 (1)Willfully and falsely swearing to or affirming an oath 314 or affirmation, or willfully procuring another person to falsely 315 swear to or affirm an oath or affirmation, in connection with or 316 arising out of voting activities. 317 (2)Perpetrating or attempting to perpetrate, or aiding in 318 the perpetration of, fraud in connection with a vote cast, to be 319 cast, or attempted to be cast. 320 (3)Preventing a member from voting or preventing a member 321 from voting as he or she intended by fraudulently changing or 322 attempting to change a ballot, ballot envelope, vote, or voting 323 certificate of the member. 324 (4)Menacing, threatening, or using bribery or any other 325 corruption to attempt, directly or indirectly, to influence, 326 deceive, or deter a member when the member is voting. 327 (5)Giving or promising, directly or indirectly, anything 328 of value to another member with the intent to buy the vote of 329 that member or another member or to corruptly influence that 330 member or another member in casting his or her vote. This 331 subsection does not apply to any food served which is to be 332 consumed at an election rally or a meeting or to any item of 333 nominal value which is used as an election advertisement, 334 including a campaign message designed to be worn by a member. 335 (6)Using or threatening to use, directly or indirectly, 336 force, violence, or intimidation or any tactic of coercion or 337 intimidation to induce or compel a member to vote or refrain 338 from voting in an election or on a particular ballot measure. 339 Section 6.This act shall take effect October 1, 2023.