The Division proposes this rule amendment to update the cooperative resolution guidelines for developer controlled associations to reflect legislative changes to Chapter 719, FS, and provide clarification where needed.
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
Division of Florida Condominiums, Timeshares, and Mobile Homes
RULE NOS.:RULE TITLES:
61B-77.001Definitions and Purpose
61B-77.002Educational Resolution
61B-77.003Enforcement Resolution and Civil Penalties
PURPOSE AND EFFECT: The Division proposes this rule amendment to update the cooperative resolution guidelines for developer controlled associations to reflect legislative changes to Chapter 719, FS, and provide clarification where needed.
SUMMARY: The amendment updates the cooperative resolution guidelines for developer controlled associations.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency. The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: the economic review conducted by the agency. Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative, must do so in writing within 21 days of this notice.
RULEMAKING AUTHORITY: 719.501(1)(f), FS.
LAW IMPLEMENTED: 719.301(5), 719.501(1), FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Debbie Miller, Government Analyst I, Division of Florida Condominiums, Timeshares, and Mobile Homes, 1940 North Monroe Street, Tallahassee, Florida 32399-1030, (850)488-1631
THE FULL TEXT OF THE PROPOSED RULE IS:
61B-77.001 Definitions and Purpose.
(1) Definitions. For the purposes of this rule chapter, the following definitions definitioins shall apply:
(a) “Accepted Complaint” means a complaint received by the division from someone with standing to file a complaint containing sufficient documentation and addressing a subject within the jurisdiction of the division, pursuant to Section 719.501(1), F.S. A complaint that merely recites the statutes or is based on mere suspicion or speculation, without a plain statement of facts clearly describing what is alleged to have occurred, will not be accepted.
(b) No change.
(c) “Alleged repeated violation” means the same or substantially similar recurring conduct cited in an accepted complaint received by the division within two years from the resolution of a previous complaint, the issuance of a final arbitration order or court order, or the entering of a final order by the division regarding that conduct.
(d)(c) “Bad check” means any worthless check, draft, or order of payment identified under Section 68.065, F.S.
(d) “Developer,” for purposes of these guidelines, shall have the same meaning as stated in Section 719.103(16), F.S.
(2) No change.
(3) The division shall apply these resolution guidelines against the developer pursuant to the division’s authority in Section 719.301(5), F.S. Therefore, the developer is responsible for the cost of affirmative or corrective action, or assessed penalties imposed under these guidelines, regardless of whether turnover has occurred. The developer shall not pass the cost of affirmative or corrective action or penalties on to the unit owners.
(4) These penalty guidelines are promulgated pursuant to the division’s authority in Section 719.501(1)(d), (f), and (k), F.S. These rules do This rule chapter does not preclude the division from imposing affirmative or corrective action pursuant to Section 719.501(1)(d)2., F.S. Nothing in these rules this rule chapter shall limit the ability of the division to informally dispose of administrative actions or complaints by stipulation, settlement agreement, or consent order. Rules 61B-77.001, 61B-77.002, and 61B-77.003, F.A.C., are necessary to explain explicate the division’s education and enforcement policies policy. This rule chapter is not intended to cover, or be applied to, willful and knowing violations of Chapter 719, F.S., or the administrative rules by an officer or association board member, pursuant to Section 719.501(1)(d)4., F.S. Such violations shall be strictly governed by the provisions of Section 719.501(1)(d)4., Florida Statutes. These rules are This rule chapter is not intended to cover, or be applied to, violations of Chapter 719, F.S., or the administrative rules by a unit owner controlled association. Such violations shall be strictly governed by the provisions of Chapter 61B-78, F.A.C.
Rulemaking Specific Authority 719.501(1)(d)4., (f) FS. Law Implemented 719.301(5), 719.501(1)(d)4., (k) FS. History–New 6-4-98, Amended ______.
61B-77.002 Educational Resolution.
An initial accepted complaint that is, directed at a developer and involving a possible violation identified as minor in these guidelines, will be resolved as follows:
If based on the complaint, the division has reasonable cause to believe that a statutory or rule violation may have occurred, a Warning Letter will be sent to the developer. The Warning Letter will give the developer 14 calendar 15 business days in which to address, correct, or dispute the violation. The Warning Letter will identify the violation, and provide a contact telephone number and an investigator’s name so that the developer may contact the division for educational assistance or an educational conference in obtaining compliance. However, it is solely the responsibility of the developer to take action, when applicable, to achieve statutory or rule compliance. Failure to respond to a Warning Letter, or take affirmative or corrective action as requested by the division, will result in the division proceeding with an enforcement resolution lead to further investigation. The Warning Letter shall not be considered final agency action. The division will notify the complainant of the educational resolution of the complaint, or if applicable, alternative dispute resolution options.
Rulemaking Specific Authority 719.501(1)(d)4., (f) FS. Law Implemented 719.301(5), 719.501(1)(d)4., (k) FS. History–New 6-4-98, Amended ________.
61B-77.003 Enforcement Resolution and Penalty Guidelines Civil Penalties.
(1) The division will seek compliance through an enforcement resolution for repeated minor violations, for the failure to correct or address a violation or provide unit owner redress as requested by the division, or for a major violation. If the division issues a notice to show cause, it will notify the developer of its right to a hearing under Chapter 120, F.S. These guidelines list aggravating and mitigating factors that will reduce or increase the penalty amounts within the specified range and those circumstances that justify a departure from the range. No aggravating factors will be applied to increase a penalty for a single violation above the statutory maximum of $5,000. The guidelines in this rule chapter are based upon a single count violation of each provision listed. Multiple counts of the violated provision or a combination of the listed violations will be added together to determine an overall total penalty. Nothing in these rules this rule chapter shall limit the ability of the division to informally dispose of administrative actions or complaints by stipulation, settlement agreement, or consent order.
(2) No change.
(3) Aggravating and Mitigating Factors. The division will consider aggravating and mitigating factors, which will reduce or increase the penalty amounts within the specified range, in determining penalties for both minor and major violations listed in this rule section chapter. No aggravating factors will be applied to increase a penalty for a single violation above the statutory maximum of $5,000. The factors are not necessarily listed in order of importance, and they shall be applied against each single count of the listed violation.
(a) Aggravating Factors:
No.
Description
1.
Filing or causing to be filed any materially incorrect document in response to any division request or subpoena.
2.
Financial loss to parties or persons affected by the violation.
3.
Financial gain to parties or persons responsible for who perpetrated the violation.
4.
The same violation was committed after a Notice of Deficiency was issued.
4.5.
The disciplinary history of the developer, including such action resulting in an enforcement resolution as detailed in Section 719.501, F.S. or Rule 61B-77.003, F.A.C. settlement or pending resolution.
5. 6.
The violation caused substantial harm, or has the potential to cause substantial harm to unit owners, cooperative residents or other persons, or entities.
7.
Undue delay in initiating or completing, or failure to take affirmative or corrective action after the developer received the division’s written notification of the violation.
6.8.
The violation had occurred for a long period of time.
7.9.
The violation was repeated within 2 years a short period of time.
8.10.
The developer impeded the division’s investigation or authority.
11.
The investigation involved the issuance of a notice to show cause or other proceeding.
(b) Mitigating Factors:
No.
Description
1.
Reliance on written professional or expert counsel and advice.
1.2.
The violation or harm was related to a natural or manmade disaster(s). Acts of God or nature.
2.
Financial hardship to respondent.
3.
The violation caused no harm to unit owners, cooperative residents or other persons, or entities.
4.
The violation occurred despite reliance on written professional or expert counsel advice.
5.4.
The developer took affirmative or corrective action before it received the division’s written notification of the violation.
6.5.
The developer expeditiously took affirmative or corrective action after it received the division’s written notification of the violation.
7.6.
The developer cooperated with the division during the investigation.
7.
The investigation was concluded through consent proceedings.
(4) through (6) No change.
(7) Penalties.
(a) Minor Violations. The following violations shall be considered minor due to their lower potential for public consumer 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 $500, whichever amount is greater. Finally, Iin 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 following are identified as minor violations:
No.
Category
Statute or Rule Cite
Description of Conduct/Violation
1.
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.
2.
Board
Failure to maintain corporate status of the association.
3.
Board
Failure to include the full text showing underlined or strikethrough language in the proposed amendment to the cooperative documents.
Board
Improper use of secret ballot, or use of proxy, by board members at a board meeting.
4.
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.
5.
Board
719.106(1)(b)1., F.S.
Action taken at unit owner meeting without quorum. Improper quorum at unit owner meeting.
Board
Failure of proxy to contain required elements.
6.
Board
719.106(1)(c), F.S.
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; non-emergency action taken at board meeting, not on agenda; no meeting agenda;. 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 permit a unit owner to tape record or videotape meeting; Failure to allow unit owners to attend meeting.
7.
Board
719.106(1)(d), F.S.
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.
8.
Board
719.106(1)(d)2., F.S.
Permitting unit owner action by written agreement without express authority from Chapter 719, F.S., or the cooperative governing documents. Failure to hold a unit owner meeting to obtain unit owners’ approval when written agreements are not authorized.
9.
Board
719.106(1)(h), F.S.
Failure to include the of amendment to bylaws to contain full text showing underlined or strikethrough language in the proposed amendment to the bylaws; etc.
Board
Failure to have the authority in the cooperative documents when levying transfer fees or security deposits.
Board
Failure to have the authority in the cooperative documents when levying late fees.
10.
Board
719.3026(1), F.S.
Failure to obtain competitive bids on contracts that exceed five percent of the association’s budget.
Board
Failure to have the authority in the cooperative documents when levying fines. Failure to provide proper notice of fines.
11.
Board
Failure to provide a speaker phone for board or committee meetings held by teleconference.
12.
Board
61B-75.004, F.A.C.
Failure to allow a unit owner to tape record or video tape meetings.
Board
61B-75.005(13), FAC.
Failure to fill vacancy properly.
13.
Budgets
719.106(1)(e)1., F.S.
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.
14.
Budgets
719.106(1)(j)1., F.S.
719.504(20)(c), F.S.
Failure to include applicable line items in proposed budget.
15.
Budgets
61B-76.003(1)(b), F.A.C.
Failure to disclose the beginning and ending dates of the period covered by the proposed budget.
16.
Budgets
61B-76.003(1)(c), F.A.C.
Failure to disclose periodic assessments for each unit type in proposed budget.
Budgets
61B-76.003(1)(e),(f), FAC.
61B-76.005(1), FAC.
Failure to provide for funding of one or more reserve fund categories in the proposed budget.
17.
Development
Failure to file name and address of first non-developer board member.
18.
Development
Failure to deliver cooperative documents and all amendments thereto upon transfer of association control.
19.
Development
Failure to deliver articles of incorporation upon transfer of association control.
20.
Development
Failure to deliver the bylaws upon transfer of association control.
21.
Development
Failure to deliver house rules upon transfer of association control.
22.
Development
Failure to deliver resignations of officers and board members upon transfer of association control.
23.
Development
Failure to deliver copies of certificates of occupancy upon transfer of association control.
24.
Development
Failure to deliver permits upon transfer of association control.
25.
Development
Failure to deliver unit owner roster upon transfer of association control.
Elections
61B-75.005(3), FAC
Improper nomination procedures in election.
Elections
61B-75.005(5), FAC.
Including candidate who did not provide timely notice of candidacy.
Elections
61B-75.005(6), FAC.
Failure to provide candidate a receipt for written notice of intent to be a candidate.
26.
Elections
61B-75.005(8), (10), F.A.C.
Counting ballots not cast in inner and outer envelopes. Failure to provide space for name, unit number, and signature on outer envelope.
Elections
61B-75.005(10)(c), FAC
Failure to timely hold runoff election.
27.
Elections
61B-75.005(9), F.A.C.
Failure to list candidates alphabetically by surname on the ballot.
28.
Elections
61B-75.005(10)(b), F.A.C.
Improper verification of outer envelopes.
29.
Records
719.104(2)(a)2., F.S.
Failure to maintain a copy of the cooperative documents.
30.
Records
719.104(2)(a)5., F.S.
Failure to maintain a current and complete unit owner roster. Failure of roster to include all elements.
31.
Records
719.104(2)(a)12., F.S.
Failure to maintain or annually update a copy of the question and answer sheet.
32.
Records
719.104(2)(a)13., F.S.
Failure to maintain other association records related to the operation of the association.
Records
719.104(2)(b),(c), FS
Failure to provide access to records.
33.
Records
719.104(8)(b), F.S.
Failure of minutes to reflect how board members voted at board meeting. Failure to record a vote or an abstention in the minutes for each board member present at the board meeting.
34.
Records
61B-76.003(3), F.A.C.
Failure to reflect the adoption of the budget in meeting minutes to reflect adoption of the proposed budget.
Reporting
61B-76.006(6)(a), FAC
Failure to timely provide the annual financial report.
35.
Reporting
61B-76.006(3)(a)5., F.A.C.
Failure to disclose in the annual year‑end financial statements or turnover audit the manner by which reserve items were estimated and/or the date the estimates were last made.
36.
Reporting
61B-76.006(3)(b), (c), F.A.C.
Failure to disclose the Improper disclosure in the year‑end financial statements of method of allocating income revenues and expenses in the annual financial statements or turnover audit. Improper special assessment disclosures in the year‑end financial statements.
37.
Reporting
61B-76.006(4), F.A.C.
Failure to show developer assessments separately from other assessment revenues non-developer owners in the year-end financial statements or annual financial report (statements) or turnover audit.
Reporting
61B-76.006(5)(c), FAC
Failure to include the required reserve fund disclosures in the annual financial report.
Reporting
61B-76.0062(2)(b), FAC.
Failure to include in the turnover financial statements a statement of total cash payments made by the developer to the association.
(b) Major Violations. The following violations shall be considered major due to their increased potential for public consumer 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 $500, whichever amount is greater. Finally, Iin 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 are set forth in categories 1, 2, and 3, for each violation are as follows:
Level Category 1: $10 – $18 per unit.
Level Category 2: $20 – $50 per unit.
Level Category 3: $100 – $300 for each unit offered/created; deposit or contract.
No.
Category
Statute or Rule Cite
Description of Conduct/Violation
Suggested Penalty Level
1.
Accounting Records
719.104(2)(a)9., F.S.
Insufficient or incomplete detail in the accounting records. Failure to maintain sufficient accounting records.
2
2.
Assessing
719.106(1)(g), F.S.
Failure to assess at sufficient amounts to meet expenses.
1
3.
Assessing
Collecting assessments less frequently than quarterly.
1
4.
Assessing
719.107(2), F.S.
Failure to assess based upon the shares proportionate share or as stated in the cooperative documents.
2
5.
Assessing
Failure to charge interest on past due assessments.
2
6.
Assessing
719.108(1), (8), F.S.
Developer or other owner improperly excused from paying assessments. Failure by developer to pay assessments or to pay in timely manner.
2
Board
Failure to follow method of amendment.
2
7.
Board
Failure to insure the association property.
2
8.
Board
Improper use fee.
1
9.
Board
Use of proxies or improper use of secret ballots by board members at a board meeting.
1
10.
Board
Unit owner denied access to unit or to common areas.
1
11.
Board
Improperly amending the cooperative documents.
2
12.
Board
719.106(1)(a)1., F.S.
Compensating Improper compensation of officers or members of the board without express authority from the cooperative governing documents directors.
21
13.
Board
Allowing ineligible person to serve on board of administration.
2
14.
Board
Improper use of general proxies. Use of non-conforming limited proxies.
1
15.
Board
Excluding unit owners from board or committee meetings.
1
16.
Board
719.106(1)(d), F.S.
Failure to hold annual meeting.
2
17.
Board
Improper removal of board member.
1
18.
Board
Improperly amending the association bylaws.
2
19.
Board
Requiring transfer fees or security deposits without express authority from the cooperative governing documents. Requiring excessive transfer fees.
1
20.
Board
719.106(1)(k), F.S.
Failure to maintain adequate fidelity bonding for all persons who control or disburse distribute association funds.
2
21.
Board
61B-75.005(13), F.A.C.
Improperly filling a vacancy of an unexpired term on the board.
1
22.
Board
Levying late fees without express authority from the cooperative governing documents.
1
23.
Board
Failure to timely notify unit owners of legal action.
1
24.
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
Board
Failure to pay annual fees to the division.
2
25.
Budgets
719.106(1)(e), F.S.
Failure to propose/adopt budget for a given year.
2
26.
Budgets
Developer increased assessments more than 115% without approval.
1
27.
Budgets
61B-76.003(1)(e), 5., F.A.C.
Failure to disclose converter reserve funding.
1
28.
Budgets
61B-76.003(1)(e),(f), (g), F.A.C.
Failure to include reserve schedule in the proposed budget.
1
29.
Budgets
61B-76.003(1)(e),(f), F.A.C.
61B-76.005(1), (5), F.A.C.
Failure to include a required reserve item in proposed budget.
1
30.
Budgets
61B-76.005(3), (5), F.A.C.
Improper calculation of reserve requirements.
1
31.
Commingle
719.104(7), F.S.
Commingling association funds with non-association funds.
2
32.
Commingle
Association funds deposited in account not in association’s name.
1
33.
Commingle
719.104(7), F.S.
61B-76.005(2), F.A.C.
Commingling reserve funds with operating funds.
1
34.
Common
Expenses
719.107(1), F.S.
Using association funds for other than common expenses.
2
35.
Converter Reserves
719.618(1), F.S.
Failure to calculate converter reserves properly.
2
36.
Converter
Reserves
719.618(2)(a), F.S.
Failure to fund converter reserves in a timely manner.
2
37.
Converter
Reserves
719.618(3)(b), F.S.
Improper use of converter reserves.
1
38.
Converter Reserves
61B-76.003(1)(e)5., F.A.C.
61B-76.006(3)(a)6., FAC.
61B-76.006(5)(c), FAC.
Failure to include converter reserve disclosures in the proposed budget, year-end financial statements, or annual financial report.
1
39.
Development
719.202(1), F.S.
Developer using an alternative assurance, such as a Letter of Credit or Surety Bond, in lieu of escrow account, without the prior approval of the Director.
3
Development
719.202(1) or (6), FS.
Failure to establish an escrow account or place funds therein.
3
40.
Development
Failure to place purchase deposits in escrow.
3
41.
Development
Failure to place reservation deposits in escrow.
3
42.
Development
719.301(1), (2), (4), F.S.
Failure to transfer association control.
2
43.
Development
Failure to deliver the minute books upon transfer of association control.
2
44.
Development
Failure to deliver the financial records (other than the audit) within 90 days of transfer of association control.
2
45.
Development
Failure to deliver the association funds upon transfer of association control.
2
46.
Development
Failure to deliver all tangible personal property of the association upon transfer of association control.
2
47.
Development
Failure to deliver a copy of the plans, specifications and affidavit upon transfer of association control.
1
48.
Development
Failure to deliver the list of contractors upon transfer of association control.
1
49.
Development
Failure to deliver copies of insurance policies upon transfer of association control.
1
50.
Development
Failure to deliver copies of all warranties upon transfer of association control.
1
51.
Development
Failure to deliver copies of all leases to which the association is a party upon transfer of association control.
1
52.
Development
719.301(4)(n), (o), F.S.
Failure to deliver copies of all contracts involving the association upon transfer of association control.
1
Development
719.403(1),(2), FS.
Failure to follow proper method to amend cooperative documents to alter phase development plan.
3
53.
Development
719.403(1), F.S.
Continuing to develop phases after expiration of phase deadline.
3
54.
Development
719.403(1), (2), F.S.
Improperly amending cooperative documents to provide for phased development.
2
55.
Development
719.502(2)(a), F.S.
61B-79.001(2)(b), F.A.C.
Accepting reservation deposits prior to filing reservation program and escrow agreements with the division.
3
56.
Development
719.502(2)(a), F.S.
61B-79.001(2)(a), (3), F.A.C.
Offering sales contracts prior to initial filing with division and acceptance for form.
3
57.
Development
719.502(3), F.S. 61B-79.003(2), F.A.C.
Offering sales contracts on units within a phase prior to filing phase documents with the division.
3
58.
Development
719.502(3), F.S. 61B-79.003(2), F.A.C.
Failure to file amendments to documents previously filed with the division.
1
59.
Development
719.503(1)(a), F.S. 61B-79.004(9), F.A.C.
Using sales contracts without required disclosures.
3
60.
Development
719.503(1)(b), F.S.
Failure to provide disclosure documents to purchasers.
3
61.
Development
Failure to allow purchaser to rescind contract upon receipt of timely notice from purchaser.
3
62.
Development
61B-79.001(3), F.A.C.
Closing on sales of units prior to the division’s approval of the filing with division and acceptance for content.
3
63.
Development
Failure to disclose rental program in prospectus.
1
64.
Elections
719.106(1)(d), F.S.
719.301(1), (2), F.S.
61B-75.005(2), F.A.C.
Failure to hold election to permit participation on board by non-developer owners. Failure to permit participation on board by non-developer owners after 15 percent of units have been sold.
2
65.
Elections
61B-75.005(3), F.A.C.
Use of nomination procedures in an election.
2
66.
Elections
61B-75.005(2), F.A.C.
Election not held at time and place of annual meeting.
1
67.
Elections
719.106(1)(d)1.a., F.S.
61B-75.005(4), F.A.C.
Failure to provide, or timely provide, first notice of election.
21
68.
Elections
Failure to provide, or timely provide, first notice of turnover election.
2
69.
Elections
719.106(1)(d)1.a., F.S.
61B-75.005(7), (8), F.A.C.
Failure to provide, or timely provide, second notice of election or omitting materials such as ballots, envelopes, and candidate information sheets.
21
70.
Elections
61B-75.005(8), F.A.C.
Voters allowed to rescind or change their previously cast ballots.
1
71.
Elections
61B-75.005(7), F.A.C.
Association altered or edited candidate-information sheets.
2
72.
Elections
719.106(1)(d)1., F.S.
Failure to use ballots or voting machines.
2
73.
Elections
61B-75.005(5), F.A.C.
Ballot included candidate who did not timely submit notice of candidacy.
2
74.
Elections
61B-75.005(6), F.A.C.
Failure to provide candidate a receipt for personally delivered written notice of candidacy.
1
75.
Elections
61B-75.005(7), F.A.C.
Distributing candidate information sheets consisting of more than one side of a page.
1
76.
Elections
61B-75.005(8), F.A.C.
Second notice of election included comments by board about candidates.
2
77.
Elections
61B-75.005(10)(a), F.A.C.
Ballots not counted by impartial committee.
1
78.
Elections
61B-75.005(10)(a), F.A.C.
Inner envelopes not placed in separate receptacle before being opened.
2
79.
Elections
719.106(1)(d)1.a., F.S.
61B-75.005(9), F.A.C.
Failure to include all timely submitted names of eligible candidates on the ballot.
21
80.
Elections
61B-75.005(9), F.A.C.
Ballots not uniform. Ballots identify voter. Ballots included space for write-in candidate.
2
81.
Elections
61B-75.005(10), F.A.C.
Outer envelopes not checked against list of eligible voters.
1
82.
Elections
61B-75.005(10)(a),(b), F.A.C.
Counting ineligible ballots. Not counting ballots in the presence of unit owners.
1
83.
Elections
61B-75.005(10)(a), F.A.C.
Failure to count properly cast ballots.
1
84.
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
85.
Elections
61B-75.005(10)(a), F.A.C.
Not counting ballots in the presence of unit owners.
2
86.
Elections
61B-75.005(10)(b), F.A.C.
Failure to notice meeting to verify outer-envelope information.
1
87.
Elections
61B-75.005(10)(c), F.A.C.
Failure to hold, or timely hold, runoff election.
2
88.
Elections
61B-75.005(10)(a), F.A.C.
No blank ballots available at election meeting.
2
89.
Final Order
719.501(1)(d)4., F.S.
Failure to comply with final order of the division.
2
90.
Guarantee
719.108(8), F.S.
61B-76.004(1), F.A.C.
Guarantee not properly established.
2
91.
Guarantee
719.108(8)(a), F.S.
61B-76.004(3), F.A.C.
Improperly assessing unit owners.
2
92.
Guarantee
719.108(8)(a), F.S.
61B-76.004(4), (5), F.A.C.
Failure to advance sufficient cash. Guarantee deficit not funded.
2
93.
Guarantee
61B-76.004(4), F.A.C.
Expending capital contributions or special assessment funds during guarantee period.
2
94.
Guarantee
61B-76.004(2), F.A.C.
Guarantee period unclear/not specified, not properly extended.
2
Guarantee
61B-76.004(4)(a), FAC.
Not providing sufficient cash/resources to provide payment on a timely basis of all common expenses including full funding of reserves.
2
Guarantee
61B-76.004(4)(b), FAC.
61B-76.004(5), FAC.
Amount owed by the guarantor for the guarantee period not properly calculated.
2
Records
Failure to maintain election materials for one year.
1
95.
Records
719.104(2)(a)4., F.S.
Failure to maintain minutes of meetings.
1
96.
Records
Failure to maintain a copy of a current insurance policy.
1
97.
Records
Failure to maintain copy of management agreement or other contract under which the association has obligations.
1
98.
Records
Failure to maintain bills of sale or transfer.
1
99.
Records
Failure to maintain election or voting materials for one year.
1
100.
Records
Failure to maintain rental records.
1
101.
Records
Requiring a unit owner to pay a fee for access to association records.
1
102.
Records
719.104(2)(b), F.S.
Failure to maintain records within Florida.
2
103.
Records
719.104(2)(b), (c), F.S.
Failure to provide access to records. Failure to allow scanning or copying of records.
1
104.
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
Records
Failure to deliver one or more association records upon transfer of association control.
2
105.
Reporting
719.104(4) (a), F.S.
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(6)(b), FAC.
Failure to provide year‑end financial statements in a timely manner.
1
Reporting
61B-76.006(8), FAC.
Failure to provide year‑end financial statements.
2
106.
Reporting
719.104(4)(b), F.S.
61B-76.006(9)(b), F.A.C.
Prior to turnover of control of the association, developer was included in vote to waive audit requirement after the first two years of operation.
2
Reporting
61B-76.006(6)(c), FAC.
Failure to provide turnover financial statements in a timely manner.
1
107.
Reporting
719.301(4)(c), F.S.
61B-76.0062(1), F.A.C.
Failure to provide, or timely provide, turnover financial statements. Turnover financial statements not audited. Failure of turnover financial statements to cover entire period of control.
2
108.
Reporting
61B-76.006(1), F.A.C.
Failure to prepare annual/turnover year-end financial statements using fund accounting. Failure to prepare annual/turnover year-end financial statements on accrual basis.
1
109.
Reporting
61B-76.006(1), F.A.C.
Failure to prepare annual/turnover year-end financial statements in accordance with Generally Accepted Accounting Principles (GAAP). Failure to have reviewed or audited annual/turnover year-end financial statements prepared by a Florida licensed CPA.
2
110.
Reporting
61B-76.006(2), F.A.C.
Failure to include one or more components of the annual/turnover year-end financial statements (incomplete).
1
111.
Reporting
61B-76.006(3)(a)1.-5.4., F.A.C.
61B-76.006(5)(c), FAC.
Failure to make significant reserve fund disclosures in the annual/turnover year-end financial statements or annual financial report.
1
112.
Reporting
61B-76.006(3)(a)6., F.A.C.
Failure to include converter reserve disclosures in the annual financial statements.
1
113.
Reporting
61B-76.006(5)(c), F.A.C.
Failure to include converter reserve disclosures in the annual financial report.
1
114.
Reporting
61B-76.006(5)(c), F.A.C.
Failure to include the required reserve fund disclosures in the annual financial report.
1
115.
Reporting
61B-76.006(3)(c), F.A.C.
Failure to include the special assessment disclosures in the annual financial statements.
1
116.
Reporting
61B-76.006(3)(d), F.A.C.
61B-76.0062(2)(d), FAC.
Incomplete or missing guarantee disclosures incomplete in, or missing from, turnover financial statements or year‑end the annual financial statements.
1
117.
Reporting
61B-76.0062(2)(d), F.A.C.
Incomplete or missing guarantee disclosures in the turnover financial statements.
1
118.
Reporting
61B-76.006(3)(d)5., F.A.C.
Failure to properly calculate guarantor’s final obligation.
2
119.
Reporting
61B-76.006(5)(a),(b) F.A.C.
Failure to prepare the annual financial report on a cash basis. Failure to include in the annual financial report specified receipt or expenditure line items.
1
120.
Reporting
61B-76.006(5)(b), F.A.C.
Failure to include in the annual financial report specified receipt or expenditure items.
1
121.
Reporting
61B-76.006(8), F.A.C.
Providing lower level of annual financial reporting for year-end financial statements than required.
2
122.
Reporting
61B-76.0062(2), F.A.C.
Failure of turnover financial statements to present revenues and expenses for each fiscal year and interim period in the turnover financial statements.
2
123.
Reporting
61B-76.0062(2) (a)-(c), F.A.C.
Failure to include in the tTurnover audit financial statements a statement of total cash payments made omit disclosure of common expenses paid by the developer to the association.
2
Reserves
61B-76.005(3), FAC.
Failure to calculate reserve funds properly.
1
124.
Reserves
719.106(1)(j)2., F.S.
61B-76.005(6), F.A.C.
Failure to fund reserves in a timely manner. Failure to fully fund reserves.
1
125.
Reserves
719.106(1)(j)2., F.S.
61B-76.005(6), (8), F.A.C.
Failure to follow proper method to waive or reduce reserve funding.
1
126.
Reserves
719.106(1)(j)2., F.S.
61B-76.005(9), F.A.C.
Prior to turnover of control of the association, developer included in vote to waive/reduce reserve funding after first two years of operation.
1
127.
Reserves
719.106(1)(j)3., F.S.
61B-76.005(7), F.A.C.
Failure to obtain unit owner approval prior to Uusing reserve funds for other purposes without proper unit owner approval.
2
128.
Special Assessment
719.108(9), F.S.
Using Failure to use special assessment funds for other than intended purposes.
1
129.
Special Assessment
Failure to state purpose of special assessment in the special assessment notice.
1
Rulemaking Specific Authority 719.501(1)(f), 719.501(1)(d)4. FS. Law Implemented 719.301(5), 719.501(1)(d)4., 719.501(1)(k) FS. History–New 6-4-98, Amended ______.
NAME OF PERSON ORIGINATING PROPOSED RULE: Kevin Stanfield, Director, Division of Florida Condominiums, Timeshares, and Mobile Homes, 1940 North Monroe Street, Tallahassee, Florida 32399-1030
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Ken Lawson, Secretary, Department of Business and Professional Regulation
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: February 24, 2015
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: October 9, 2014
Document Information
- Comments Open:
- 3/6/2015
- Summary:
- The amendment updates the cooperative resolution guidelines for developer controlled associations.
- Purpose:
- The Division proposes this rule amendment to update the cooperative resolution guidelines for developer controlled associations to reflect legislative changes to Chapter 719, FS, and provide clarification where needed.
- Rulemaking Authority:
- 719.501(1)(f), FS.
- Law:
- 719.301(5), 719.501(1), FS.
- Contact:
- Debbie Miller, Government Analyst I, Division of Florida Condominiums, Timeshares, and Mobile Homes, 1940 North Monroe Street, Tallahassee, Florida 32399-1030, (850) 488-1631.
- Related Rules: (3)
- 61B-77.001. Definitions and Purpose
- 61B-77.002. Educational Resolution
- 61B-77.003. Enforcement Resolution and Civil Penalties