Bill Text: FL S0610 | 2019 | Regular Session | Comm Sub
Bill Title: Condominium Associations
Spectrum: Slight Partisan Bill (? 2-1)
Status: (Failed) 2019-05-03 - Died in Appropriations Subcommittee on Criminal and Civil Justice [S0610 Detail]
Download: Florida-2019-S0610-Comm_Sub.html
Florida Senate - 2019 CS for CS for SB 610 By the Committees on Innovation, Industry, and Technology; and Criminal Justice; and Senator Pizzo 580-03764-19 2019610c2 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. 24 25 Be It Enacted by the Legislature of the State of Florida: 26 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, a54criminal 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 certificate75used in a condominium association election is punishable as76provided in s. 831.01, the theft or embezzlement of funds of a77condominium association is punishable as provided in s. 812.014,78and the destruction of or the refusal to allow inspection or79copying of an official record of a condominium association that80is accessible to unit owners within the time periods required by81general law in furtherance of any crime is punishable as82tampering with physical evidence as provided in s. 918.13 or as83obstruction 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. 775.083is personally subject to a civil penalty246pursuant 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, 20212019, an association managing a 320 condominium with 25150or 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, not including timeshare units, shall post on its website 412 digital copies of all official records subject to inspection by 413 tenants or unit owners or their authorized representatives. 414 (15) DEBIT CARDS.— 415 (b) A person who usesUse ofa 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 422may 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.