DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
Division of Florida Condominiums, Timeshares and Mobile Homes
RULE NO.:RULE TITLE:
61B-78.004Enforcement Resolution and Civil Penalties
NOTICE OF CHANGE
Notice is hereby given that the following changes have been made to the proposed rule in accordance with Section 120.54(3)(d)1., F.S., published in Vol. 40, No. 192, October 2, 2014, issue of the Florida Administrative Register.
61B-78.004 Enforcement Resolution and Penalty Guidelines.
(1) through (6) No change.
(7) Penalties.
(a) Minor Violations. The following violations shall be considered minor due to their lower potential for public harm. If an enforcement resolution is utilized, the division shall impose a civil penalty between $1 and $5 per unit for each minor violation. The penalty will be assessed beginning with the middle of the specified range and adjusted either up or down based upon any accepted aggravating or mitigating factors submitted with proper documentation. An occurrence of six or more aggravating factors or five or more mitigating factors will result in a penalty being assessed outside of the specified range. The total penalty to be assessed shall be calculated according to these guidelines or $100, whichever amount is greater. In no event shall a penalty of more than $2,500 be imposed for a single violation. The enumeration of violations is descriptive only; the full language of each statutory and rule provision cited must be consulted in order to determine the conduct included in the violation. The following are identified as minor violations:
No.
Category
Statute or Rule Cite
Description of Conduct/Violation
Assessments
Failure to provide within 15 days a certificate stating all assessments and other moneys owed to the association by the unit owner with respect to the cooperative parcel.
Board
Failure to include the full text showing underlined or strikethrough language in the proposed amendment to the cooperative documents.
Board
Failure to maintain corporate status of the association.
Board
719.106(1)(a)3. 2., F.S.
Failure to provide a timely or substantive response to a written inquiry received by certified mail.
Board
Action taken at unit owner meeting without quorum.
Board
Failure to properly notice and conduct board of administration or committee meetings. Notice failed to indicate assessment would be considered. Failure to maintain affidavit by person who gave notice of special assessment meeting. Failure to ratify emergency action at next meeting. Failure to adopt a rule regarding posting of notices. Failure to notice meeting. Action on item not on agenda. Notice did not include agenda. Failure to allow unit owners to speak or unreasonably restricting the frequency, duration, or manner of unit owner statements at meeting. Failure to allow unit owner to attend meeting.
Board
Failure to provide notice of the annual meeting not less than 14 days prior to the meeting. Failure to include agenda. Failure to maintain affidavit by person who gave notice of annual meeting. Failure to adopt a rule designating a specific place for posting notice of unit-owner meetings.
Board
Permitting unit owner action by written agreement without express authority from Chapter 719, F.S., or the cooperative governing documents.
Board
Failure to include the full text showing underlined or strikethrough language in the proposed amendment to the bylaws.
Board
Failure to obtain competitive bids on contracts that exceed five percent of the association’s budget.
Board
Failure to provide a speaker phone for board or committee meetings held by teleconference.
Board
61B-75.004, F.A.C.
Failure to allow a unit owner to tape record or video tape meetings.
Budgets
Failure to timely notice budget meeting. Failure to timely deliver proposed budget.
Budgets
Failure of board to call a unit owners’ meeting to consider alternate budget.
Budgets
Failure to include applicable line items in proposed budget.
Budgets
61B-76.003(1)(b), F.A.C.
Failure to disclose the beginning and ending dates of the period covered by the budget.
Budgets
61B-76.003(1)(c), F.A.C.
Failure to disclose periodic assessments for each unit type in proposed budget.
Elections
61B-75.005(8), F.A.C.
Failure to provide space for name, unit number, and signature on outer envelope.
Elections
61B-75.005(9), F.A.C.
Failure to list candidates alphabetically by surname on the ballot.
Elections
61B-75.005(10)(b), F.A.C.
Improper verification of outer envelopes.
Records
Failure to maintain a copy of the cooperative documents.
Records
Failure to maintain a current and complete unit owner roster.
Records
Failure to maintain or annually update the question and answer sheet.
Records
Failure to maintain other association records related to the operation of the association.
Records
Failure to record a vote or an abstention in the minutes for each board member present at the board meeting.
Records
61B-76.003(3), F.A.C.
Failure to reflect the adoption of the budget in meeting minutes.
Reporting
61B-76.006(3)(a)5., F.A.C.
Failure to disclose in the annual financial statements the manner by which reserve items were estimated and/or the date the estimates were last made.
Reporting
61B-76.006(3)(b), F.A.C.
Failure to disclose the method of allocating income and expenses in the annual financial statements.
(b) Major Violations. The following violations shall be considered major due to their increased potential for public harm. If an enforcement resolution is utilized, the penalty will be assessed beginning with the middle of the specified range and adjusted either up or down based upon any accepted aggravating or mitigating factors submitted with proper documentation. An occurrence of six or more aggravating factors or five or more mitigating factors will result in a penalty being assessed outside of the specified range. The total penalty to be assessed shall be calculated according to these guidelines or $100, whichever amount is greater. In no event shall a penalty of more than $5,000 be imposed for a single violation. The enumeration of violations is descriptive only; the full language of each statutory and rule provision cited must be consulted in order to determine the conduct included in the violation. The penalties for each violation are as follows:
Level 1: $6 – $10 per unit.
Level 2: $12 – $20 per unit.
No.
Category
Statute or Rule Cite
Description of Conduct/Violation
Penalty Level
Accounting
Records
Insufficient or incomplete accounting records.
2
Assessing
Failure to assess at sufficient amounts to meet expenses.
1
Assessing
Collecting assessments less frequently than quarterly.
1
Assessing
Failure to assess based upon the shares stated in the cooperative documents.
2
Assessing
Failure to charge interest on past due assessments.
2
Assessing
719.108(1), (8), F.S.
Developer or other owner improperly excused from paying assessments.
2
Board
Failure to insure the association property.
2
Board
Improper use fee.
1
Board
Use of proxies or improper use of secret ballots by board members at a board meeting.
1
Board
Unit owner denied access to unit or to common areas.
1
Board
Improperly amending the cooperative documents.
2
Board
61B-75.005(13), F.A.C.
Improperly filling a vacancy of an unexpired term on the board.
1
Board
Compensating officers or members of the board without express authority from the cooperative governing documents.
2
Board
Allowing ineligible person to serve on board of administration.
2
Board
Improper use of general proxies. Use of non-conforming limited proxies.
1
Board
Excluding unit owners from board or committee meetings.
1
Board
Failure to hold annual meeting.
2
Board
Improper removal of board member.
1
Board
Improperly amending the association bylaws.
2
Board
Requiring transfer fees or security deposits without express authority from the cooperative governing documents.
Requiring excessive transfer fees.
1
Board
Failure to maintain adequate fidelity bonding for all persons who control or disburse association funds.
2
Board
Levying late fees without express authority from the cooperative governing documents.
1
Board
Failure to notify, or timely notify, unit owners of legal action.
1
Board
719.303(3),(4),(5),(6), F.S.
Imposing fines without proper notice. Imposing excessive fines. Improper suspension of use rights and voting rights; failure to provide proper notice.
1
Budgets
Failure to propose/adopt budget for a given year.
2
Budgets
61B-76.003(1)(e), 5., F.A.C.
Failure to disclose converter reserve funding.
1
Budgets
61B-76.003(1)(e), (f), (g), F.A.C.
Failure to include reserve schedule in the proposed budget.
1
Budgets
61B-76.003(1)(e),(f), F.A.C.
61B-76.005(1), F.A.C.
Failure to include a required reserve item in proposed budget.
1
Budgets
61B-76.005(3), F.A.C.
Improper calculation of reserve requirements.
1
Commingle
Commingling association funds with non-association funds.
2
Commingle
Association funds deposited in account not in association’s name.
1
Commingle
61B-76.005(2), F.A.C.
Commingling reserve funds with operating funds.
1
Common
Expenses
Using association funds for other than common expenses.
2
Converter Reserves
Improper use of converter reserves.
1
35.
Converter Reserves
61B-76.003(1)(e)5., F.A.C.
Failure to include converter reserve disclosures in the proposed budget.
1
Elections
61B-75.005(2), F.A.C.
Failure to hold election.
2
Elections
61B-75.005(2), F.A.C.
Election not held at time and place of annual meeting.
1
Elections
61B-75.005(3), F.A.C.
Use of nomination procedures in an election.
2
Elections
61B-75.005(4), F.A.C.
Failure to provide, or timely provide, first notice of election.
2
Elections
61B-75.005(5), F.A.C.
Ballot included candidate who did not timely submit notice of candidacy.
2
Elections
61B-75.005(6), F.A.C.
Failure to provide candidate a receipt for personally delivered written notice of candidacy.
1
Elections
61B-75.005(7), (8), F.A.C.
Failure to provide, or timely provide, second notice of election or omitting ballots, envelopes, and candidate information sheets.
2
Elections
61B-75.005(7), F.A.C.
Distributing candidate information sheets consisting of more than one page.
1
Elections
61B-75.005(8), F.A.C.
Voters allowed to rescind or change their previously cast ballots.
1
Elections
61B-75.005(8), F.A.C.
Second notice of election included comments by board about candidates.
2
Elections
61B-75.005(7), F.A.C.
Association altered or edited candidate information sheets.
2
Elections
Failure to use ballots or voting machines.
2
Elections
61B-75.005(10)(a), F.A.C.
Inner envelopes not placed in separate receptacle before being opened.
2
Elections
61B-75.005(9), F.A.C.
Failure to include all timely submitted names of eligible candidates on the ballot.
2
Elections
61B75.005(9), F.A.C.
Ballots not uniform. Ballots identify voter. Ballots included space for write-in candidate.
2
Elections
61B-75.005(10), F.A.C.
Outer envelopes not checked against list of eligible voters.
1
Elections
61B-75.005(10)(a), (b), F.A.C.
Counting ineligible ballots.
1
Elections
61B-75.005(10)(a), F.A.C.
Failure to count properly cast ballots.
1
Elections
61B-75.005(10), F.A.C.
Outer envelopes opened prior to election meeting. Outer envelopes not opened in presence of unit owners.
2
Elections
61B-75.005(10)(a), F.A.C.
Not counting ballots in the presence of unit owners.
2
Elections
61B-75.005(10)(a), F.A.C.
Ballots not counted by impartial committee.
1
Elections
61B-75.005(10)(b), F.A.C.
Failure to notice meeting to verify outer envelope information.
1
Elections
61B-75.005(10)(c), F.A.C.
Failure to hold, or timely hold, runoff election.
2
Elections
61B-75.005(10)(a), F.A.C.
No blank ballots available at election meeting.
2
Final Order
Failure to comply with final order of the division.
2
Records
Failure to maintain minutes of meetings.
1
Records
Failure to maintain a copy of a current insurance policy.
1
Records
Failure to maintain copy of management agreement or other contract under which the association has obligations.
1
Records
Failure to maintain bills of sale or transfer.
1
Records
Failure to maintain election or voting materials for one year.
1
Records
Failure to maintain rental records.
1
Records
Requiring a unit owner to pay a fee for access to association records.
1
Records
Failure to maintain records within Florida.
2
Records
719.104(2)(b), (c), F.S.
Failure to provide access to records. Failure to allow scanning or copying of records.
1
Records
Failure of outgoing board or committee member to relinquish all official records and property of the association in his or her possession or under his or her control to the incoming board within 5 days after the election.
2
Reporting
61B-76.006(6), (8), F.A.C.
Failure to provide, or timely provide, the annual financial report or statements.
2
Reporting
61B-76.006(1), F.A.C.
Failure to prepare annual financial statements using fund accounting. Failure to prepare annual financial statements on accrual basis.
1
Reporting
61B-76.006(1), F.A.C.
Failure to prepare annual financial statements in accordance with Generally Accepted Accounting Principles (GAAP).
Failure to have reviewed or audited annual financial statements prepared by a Florida licensed CPA.
2
Reporting
61B-76.006(2), F.A.C.
Failure to include one or more components of the annual financial statements (incomplete).
1
Reporting
61B-76.006(3)(a)1.-5., F.A.C.
Failure to make significant reserve fund disclosures in the annual financial statements.
1
Reporting
61B-76.006(3)(a)6., F.A.C.
Failure to include converter reserve disclosures in the annual financial statements.
1
Reporting
61B-76.006(5)(c), F.A.C.
Failure to include converter reserve disclosures in the annual financial report.
1
Reporting
61B-76.006(5)(c), F.A.C.
Failure to include the required reserve fund disclosures in the annual financial report.
1
Reporting
61B-76.006(3)(c), F.A.C.
Failure to include the special assessment disclosures in the annual financial statements.
1
Reporting
61B-76.006(3)(d), F.A.C.
Incomplete or missing guarantee disclosures in the annual financial statements.
1
Reporting
61B-76.006(5)(a), F.A.C.
Failure to prepare the annual financial report on a cash basis.
1
Reporting
719.104(4)(c)(a), F.S.
61B-76.006(5)(b), F.A.C.
Failure to include in the annual financial report specified receipt or expenditure items.
1
83.
Reporting
61B-76.006(8), F.A.C.
Providing lower level of annual financial reporting than required.
2
84.
Reserves
61B-76.005(6), F.A.C.
Failure to fund reserves in a timely manner. Failure to fully fund reserves.
1
85.
Reserves
61B-76.005(6), (8), F.A.C.
Failure to follow proper method to waive or reduce reserve funding.
1
86.
Reserves
61B-76.005(7), F.A.C.
Using reserve funds for other purposes without proper unit owner approval.
2
87.
Special
Assessment
Using special assessment funds for other than intended purposes.
1
88.
Special
Assessment
Failure to state purpose of special assessment in the special assessment notice.
1
Rulemaking Authority 719.501(1)(f) FS. Law Implemented 719.501(1)(d)4., 719.501(1)(m) FS. History–New 6-4-98, Amended _________.
1
Document Information
- Related Rules: (1)
- 61B-78.004. Enforcement Resolution and Civil Penalties