The amendments are intended to make the condominium developer resolution guidelines consistent with the 2009 revised legislation affecting the division’s jurisdiction and the experience gained in applying the rules since their adoption in 1998.

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
Division of Florida Condominiums, Timeshares and Mobile Homes

RULE NO: RULE TITLE
61B-20.004: Definitions and Purpose
61B-20.005: Educational Resolution
61B-20.006: Enforcement Resolution and Civil Penalties
PURPOSE AND EFFECT: The amendments are intended to make the condominium developer resolution guidelines consistent with the 2009 revised legislation affecting the division’s jurisdiction and the experience gained in applying the rules since their adoption in 1998.
SUMMARY: The amendments clarify the definition of an accepted complaint; who has standing to file a complaint; provide point values for calculating aggravating and mitigating factors; change the beginning range of penalties to a set point; re-word descriptions for clarity; increase some minor violations to major violations; add new statutory citations to the list of described violations; remove some statutory citations from the list of described violations; and increase the penalties for violations.
Other rules incorporating these rules: 61B-21.001 and 61B-41.002, F.A.C. The amendments to these rules will have no significant impact on the referenced rules.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
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.
SPECIFIC AUTHORITY: 718.301, 718.501 FS.
LAW IMPLEMENTED: 455.2273, 718.301, 718.501 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW(IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):
DATE AND TIME: July 28, 2010, 9:00 a.m.
PLACE: The Northwood Centre, Suite 16, Conference Room, 1940 N. Monroe Street, Tallahassee, Florida
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 48 hours before the workshop/meeting by contacting: Sharon A. Malloy, Senior Management Analyst II at [phone]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Sharon A. Malloy, Senior Management Analyst II, Division of Florida Condominiums, Timeshares, and Mobile Homes, 1940 North Monroe Street, Tallahassee, Florida 32399-1030, [phone]

THE FULL TEXT OF THE PROPOSED RULE IS:

61B-20.004 Definitions and Purpose.

(1) Definitions. For the purposes of this rule chapter Rules 61B-20.004, 61B-20.005 and 62B-20.006, F.A.C., the following definitions shall apply:

(a) “Accepted complaint” means a complaint received by the division from someone with standing to file a complaint, which addresses containing sufficient documentation and addressing a subject within the jurisdiction of the division under, pursuant to Section 718.501(1), F.S., and which meets the following criteria:

1. It must allege a violation of Chapter 718, F.S., or the division’s rules;

2. It must contain a plain statement of specific facts upon which the complainant bases the allegation that a violation of Chapter 718, F.S., or a rule occurred. 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; and

3. It must contain sufficient evidentiary documentation to support the complaint. A complaint received by the division that fails to meet the above criteria will be returned to the complainant with an explanation as to why it was not accepted and suggestions as to how the complaint may be made acceptable, and resubmitted.

(b) “Affirmative or corrective action” means putting remedial procedures in place to ensure that the violation does not recur, making any injured person whole as to the harm suffered in relation to the violation, or taking any other appropriate measures to redress the harm caused.

(c) “Alleged repeated violation” means the same or substantially similar recurring violation cited in an accepted complaint received by the division within two years from the resolution of a previous complaint regarding the same or substantially similar violation. A violation is a repeated violation if the same alleged statutory or rule violation was charged in an arbitration in which an enforceable order of an arbitrator was entered finding it a violation, or if the division entered a final enforceable order finding it a violation.

(d)(c) “Bad check” means any worthless check, draft, or order of payment identified under Section 68.065, F.S.

(e)(d) “Developer” for purposes of these guidelines, shall have the same meaning as stated in Section 718.103(16), F.S.

(2) Purpose.

(a) The purpose of the penalty resolution guidelines is to implement the division’s responsibility to ensure compliance with the provisions of Chapter 718, F.S., and the division’s administrative rules. For those statutory or rule violations identified as minor in these rules, the division will first and foremost attempt to seek compliance through an educational resolution. For repeated statutory or rule violations, where the violations have not been corrected or otherwise resolved by the developer, or for violations identified as major in these rules, the division will seek statutory or rule compliance through an enforcement resolution. The guidelines detail the educational and enforcement procedures the division will use to seek statutory or rule compliance. The guidelines are also intended to implement the division’s statutory authority to give reasonable and meaningful notice to persons regulated by Chapter 718, F.S., and the administrative rules of the range of penalties that normally will be imposed if an enforcement resolution is taken by the division. Finally, the rules are intended, pursuant to statutory mandate, to distinguish between minor and major violations based upon the potential harm that the violation may cause.

(b)(3) The division shall apply these penalty guidelines against the developer pursuant to the division’s authority in Section 718.301(5), F.S. Therefore, the developer is responsible for the cost of affirmative or corrective action, or assessed penalties imposed under these guidelines for violations that occurred prior to turnover, regardless of whether turnover has since occurred. The developer shall not pass the cost of such affirmative or corrective action or penalties on to the unit owners.

(c)(4) These penalty guidelines are adopted under promulgated pursuant to the division’s authority in Section 718.501(1)(d), (f), and (m)(k), F.S. These rules do not preclude the division from imposing affirmative or corrective action under Sections pursuant to Section 718.501(1)(d)2., and (r), F.S. Nothing in these rules shall limit the ability of the division to informally dispose of administrative actions or complaints by stipulation, settlement agreement, or consent order. Rules 61B-20.004, 61B-20.005, and 61B-20.006, F.A.C., are necessary to explain explicate the division’s education and enforcement policies policy. These rules are not intended to cover, or be applied to, willful and knowing violations of Chapter 718, F.S., or the administrative rules by an officer or association board member, pursuant to Section 718.501(1)(d) 4., F.S. Such violations shall be strictly governed by the provisions of Section 718.501(1)(d) 4., F.S. These rules are not intended to cover, or be applied to violations of Chapter 718, F.S., or the administrative rules by a unit owner controlled association. Such violations shall be strictly governed by the provisions of Chapter 61B-21, F.A.C.

Rulemaking Specific Authority 718.301, 718.501(1)(d)4., (f) FS. Law Implemented 718.301, 718.501(1)(d)4. FS. History–New 6-4-98, Amended_________.

 

61B-20.005 Educational Resolution.

(1) An initial accepted complaint, directed at a developer and involving a possible violation identified as minor in these guidelines, will be resolved as follows:

(a) 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, may result in the division proceeding with enforcement resolution will lead to further investigation. The Warning Letter shall not be considered final agency action.

(b) If the division proceeds with enforcement resolution by issuing a notice to show cause, the division will notify the developer of its right to a hearing under Chapter 120, F.S.

(c) The division will notify the complainant of the educational resolution of the complaint, or if applicable, alternative dispute resolution options.

Rulemaking Specific Authority 718.501(1)(d)4., (f) FS. Law Implemented 718.501(1)(d)4., (k) FS. History–New 6-4-98, Amended_________.

 

61B-20.006 Enforcement Resolution and Penalty Guidelines Civil Penalties.

(1) The division will seek compliance through an enforcement resolution for major violations or repeated minor violations, or 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 seeks compliance through enforcement, the division will issue a notice to show cause and 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 listed penalty amounts within the specified range and those circumstances that justify a departure from the guideline 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 this rule chapter these rules shall limit the ability of the division to informally dispose of administrative actions or complaints by stipulation, settlement agreement, or consent order. Nothing in this rule chapter shall limit the division’s ability to seek judicial enforcement and remedies through the courts.

(2) General Provisions.

(a) No change.

(b) Violations Included. This rule chapter applies to all statutory and rule violations subject to a penalty authorized by Chapter 718, F.S. An enforceable arbitration order or consent order finding a statutory or rule violation constitutes a violation for purposes of this rule chapter and shall count as a violation when determining whether a violation has been repeated.

(c) through (d) No change.

(3) Aggravating and Mitigating Factors. The division will consider aggravating and mitigating factors in determining penalties for both minor and major violations listed in this rule section. 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	Value
1.	Filing or causing to be filed any materially incorrect document in response to any division request or subpoena.	3
2.	Financial loss to parties or persons affected by the violation.	3
3.	Financial gain to parties or persons responsible for who perpetrated the violation.	3
4.	The same violation was committed after a Notice of Deficiency was issued.
4.5.	The disciplinary history of the developer, including such actions resulting in enforcement as detailed in Rule 61B-20.006, F.A.C., or Section 718.501, F.S settlement or pending resolution.	2
5.6.	Substantial The violation caused substantial harm, or has potential to cause substantial harm caused to unit owners condominium residents or other persons or entities.	2
7.	Undue delay in initiating or completing, or failure to take affirmative or corrective action after the developer received the division’s written notifications of the violation.
6.8.	The violation had occurred for a long period of time.	2
7.9.	The violation was repeated within 2 years a short period of time.	2
8.10.	The developer impeded the division’s investigation or authority.	1
11.	The investigation involved the issuance of a notice to show cause, or other proceeding.

(b) Mitigating Factors:

No.	Description	Value
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.	3
2.	Financial hardship to respondent.	3
3.	The violation caused no harm to unit owners condominium residents or other persons or entities.	3
4.	The violation occurred despite reliance on written professional or expert counsel and advice.	2
5.4.	The developer took affirmative or corrective action before it received the division’s written notification of the violation.	2
6.5.	The developer expeditiously took affirmative or corrective action after it received the division’s written notification of the violation.	1
7.6.	The developer cooperated with the division during the investigation.	1
7.	The investigation was concluded through consent proceedings.

 

(c) Application. When applying aggravating or mitigating factors, the value of each applicable factor shall be multiplied by one tenth (1/10) of the specified penalty for the violation. In the case of a mitigating factor, the resulting product shall be subtracted from the specified penalty. In the case of an aggravating factor, the resulting product shall be added to the specified penalty. However, the maximum calculated penalty for a single violation may not exceed $5,000, and the minimum calculated penalty for a single violation shall not be less than one tenth (1/10) of the specified penalty for that violation. For example: if the specified penalty for a violation were $1,000, and the developer had relied on written professional or expert counsel and advice, then two tenths would be subtracted in mitigation, and the resulting penalty would be $800.

(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 of $7.50 between $1 and $5, per unit, for each minor violation. The total penalty or per unit 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 documentation that demonstrates the factors. 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 minimum penalty to be assessed shall be calculated according to these guidelines or $500, whichever amount is greater. In Finally, in no event shall a penalty of more than $5,000 be imposed for a single violation. The following are identified as minor violations:

 

No.	Category	Statute or Rule Cite	Description of Conduct/Violation
1.	Assessments	718.116(8), F.S.	Failure to provide or timely provide a certificate stating assessments owed by the unit.
2.	Board	718.110(1)(b), F.S. 718.112(2)(h)2., F.S.	Proposed amendment to declaration failed to contain full text showing underlined or strikethrough language; etc. Failure of amendment to declaration or bylaws to contain full text showing underlined or language; etc.
3.	Board	718.112(2)(h)2., F.S.	Proposed amendment to bylaws failed to contain full text showing underlined or strikethrough language; etc.
4.	Board	718.111(1)(a), F.S.	Failure to obtain or maintain corporate status of association.
	Board	718.111(1)(b), F.S.	Improper use of secret ballots, or use of proxy, by board members at a board meeting.
5.	Board	718.112(2)(a)2., F.S.	Failure to provide a timely or substantive response to a written inquiry received by certified mail.
6.	Board	718.112(2)(b)1., F.S.	Action taken at unit owner meeting without quorum. Improper quorum at unit owner meeting.
	Board	718.112(2)(b)2., F.S.	Failure of proxy to contain required elements.
7.	Board	718.112(2)(c), F.S. 61B-23.002(9), F.A.C.	Failure to properly notice and conduct board of administration or committee meetings.; Notice notice failed to indicate assessment would be considered.; Failure failure to maintain affidavit by person who gave notice of special assessment meeting.; Failure failure to ratify emergency action at next meeting.; Failure failure to adopt a rule regarding posting of notices.; Failure failure to notice meeting.; Non-emergency action taken at board meeting, not on agenda.; No meeting agenda.; Failure to allow unit owners to speak at meeting or speech is limited with unreasonable restrictions to less than three minutes.
8.	Board	718.112(2)(d)2., 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.
9.	Board	718.112(2)(d)4., F.S.	Permitting unit owner action by written agreement without express documentary or statutory authority. Failure to hold a unit owner meeting to obtain unit owners’ approval when written agreements are not authorized.
	Board	718.112(2)(i), F.S.	Failure to have the authority in the documents when levying transfer fees or security deposits.
	Board	718.113(5), F.S.	Failure to comply with hurricane shutter requirements.
	Board	718.116(3), F.S.	Failure to have the authority in the documents when levying late fees.
10.	Board	718.3026(1), F.S.	Failure to obtain competitive bids on contracts that exceed five percent of the association’s budget.
	Board	718.303(3), F.S.	Failure to have the authority in the documents when levying fines. Failure to provide proper notice of fines.
	Board	61B-23.001(2), F.A.C.	Failure to allow unit owners to attend board or committee meetings.
11.	Board	718.112(2)(b)5., F.S.	Failure to provide a speaker phone for board or committee meetings held by teleconference.
	Board	61B-23.001(4), F.A.C.	Failure to employ a licensed manager when licensure is required.
12.	Board	718.112(2)(c), F.S. 61B-23.002(10), F.A.C.	Not allowing a unit owner to tape record or video tape meetings. Failure to permit a unit owner to tape record or video tape meetings.
	Board	61B-23.0021(1)(d)2., F.A.C.	Failure to fill vacancy properly.
13.	Budgets	718.112(2)(e), F.S.	Failure to timely notice budget meeting. Failure to timely deliver proposed budget. Failure of board to call a unit owners’ meeting to consider alternate budget.
14.	Budgets	718.112(2)(f)1., F.S. 718.504(21)(c), F.S.	Failure to include applicable line items in proposed budget.
15.	Budgets	718.112(2)(f)1., F.S. 61B-22.003(5), F.A.C.	Failure to include a schedule of limited common element expenses in budget. Failure to show limited common element expenses in proposed budget.
16.	Budgets	61B-22.003(1)(b), F.A.C.	Failure to disclose the beginning and ending dates of the period covered by the proposed budget.
17.	Budgets	61B-22.003(1)(c), F.A.C.	Failure to disclose periodic assessments for each unit type in the proposed budget.
	Budgets	61B-22.003(1)(d), F.A.C.	Failure to propose full reserve funding in proposed budget.
	Budgets	61B-22.003(1)(e), (f), (g), F.A.C. 61B-22.005(1), F.A.C.	Failure to provide for funding of one or more reserve fund categories in the proposed budget
	Budgets	61B-22.003(4)(a), F.A.C.	Failure to prepare a separate budget for each condominium operated by the association. Failure to provide the required separate proposed budget for each condominium operated by the association.
18.	Development	61B-23.003(6), F.A.C.	Developer failed to keep a copy of the receipt for delivery of association records upon transfer of control.
19.	Development	61B-23.003(5), F.A.C.	Developer failed to file name and address of first non-developer board member.
20.	Development	718.301(4)(a)1., F.S.	Failure to deliver a copy of the declaration and all amendments thereto upon transfer of association control.
21.	Development	718.301(4)(a)2., F.S.	Failure to deliver a copy of the articles of incorporation and all amendments upon transfer of association control.
22.	Development	718.301(4)(a)3., F.S.	Failure to deliver a copy of the bylaws and all amendments thereto upon transfer of association control.
23.	Development	718.301(4)(a)5., F.S.	Failure to deliver a copy of any house rules upon transfer of association control.
24.	Development	718.301(4)(b)., F.S.	Failure to deliver resignations of officers and board members upon transfer of association control.
25.	Development	718.301(4)(i), F.S.	Failure to deliver copies of certificates of occupancy for the condominium property upon transfer of association control.
26.	Development	718.301(4)(j), F.S.	Failure to deliver copies of permits upon transfer of association control.
27.	Development	718.301(4)(l), F.S.	Failure to deliver a copy of the unit owner roster upon transfer of association control.
	Elections	718.112(2)(d)3., F.S. 61B-23.0021(3), F.A.C.	Improper nomination procedures in election.
	Elections	718.112(2)(d)3., F.S. 61B-23.0021(5), F.A.C.	Including candidate who did not submit timely notice of candidacy.
	Elections	61B-23.0021(6), F.A.C.	Failure to provide candidate a receipt for written notice of intent to be a candidate.
28.	Elections	61B-23.0021(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-23.0021(10)(c), F.A.C.	Failure to timely hold runoff election.
29.	Elections	61B-23.0021(9), F.A.C.	Ballot does not list candidates alphabetically.
30.	Elections	61B-23.0021(10)(b), F.A.C.	Improper verification of outer envelopes.
31.	Records	718.111(1)(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.
32.	Records	718.111(12)(a)2., F.S.	Failure to maintain a copy of recorded declaration and amendments.
33.	Records	718.111(12)(a)3., F.S.	Failure to maintain a copy of recorded bylaws and amendments.
34.	Records	718.111(12)(a)4., F.S.	Failure to maintain a certified copy of articles of incorporation and amendments.
35.	Records	718.111(12)(a)7., F.S.	Failure to maintain a current, complete unit owner roster. Failure of roster to include all elements.
36.	Records	718.111(12)(a)14., F.S. 61B-23.002(7)(a), F.A.C.	Failure to maintain or annually update the question and answer sheet.
37.	Records	718.111(12)(a)15., F.S.	Failure to maintain other association records related to the operation of the association.
	Records	718.111(12)(b),(c), F.S.	Failure to provide access to records.
38.	Records	61B-22.003(3), F.A.C.	Failure to reflect adoption of budget in meeting minutes. Failure of budget meeting minutes to reflect adoption of the proposed budget.
	Records	61B-23.003(6), F.A.C.	Failure to maintain a copy of the receipt for delivery of association records upon transfer of control.
	Reporting	718.111(13), F.S.	Failure to timely provide the annual financial report.
39.	Reporting	61B-22.006(3)(a)6.5., F.A.C.	Failure to disclose the manner by which reserve items were estimated and/or the date the estimates were last made in the annual financial statements or turnover audit. Failure to disclose in the year‑end financial statements the manner by which reserve items were estimated and/or the date the estimates were last made.
	Reporting	61B-22.006(3)(b),(c), F.A.C.	Improper disclosure in the year‑end financial statements of method of allocating revenues and expenses. Improper special assessment disclosures in the year‑end financial statements.
40.	Reporting	61B-22.006(3)(b), F.A.C.	Failure to disclose the method of allocating income and expenses in the annual financial statements or turnover audit.
	Reporting	61B-22.006(3)(d), F.A.C.	Improper disclosure in the year‑end financial statements of revenues and expenses related to limited common elements.
	Reporting	61B-22.006(4), F.A.C.	Improper multi-condominium reserve fund disclosures in the year‑end financial statements. Multi-condominium revenues, expenses, and changes in fund balance not shown for each condominium in the year‑end financial statements. Disclosure of multi-condominium revenues/expenses for the association not specific to a condominium, is omitted, or is incomplete in the year‑end financial statements.
41.	Reporting	61B-22.006(5), F.A.C.	Failure to show developer assessments separately from other assessment revenues in the annual financial report (statements). Failure to show developer assessments separately from non-developer owners in the year‑end financial statements or annual financial report.
	Reporting	61B-22.006(3)(a), F.A.C.	Failure to include the required reserve fund disclosures in the annual financial report.
	Reporting	61B-22.006(6)(b), F.A.C.	Improper disclosure of receipts and expenditures in the annual financial report in a multi-condominium association.
	Reporting	61B-22.0062(2)(b), F.A.C.	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 documentation that demonstrates the factors. 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 minimum penalty to be assessed shall be calculated according to these guidelines or $500, whichever amount is greater. In Finally, in no event shall a penalty of more than $5,000 be imposed for a single violation. The penalties are set forth in levels categories 1, 2, and 3, for each violation as follows:

Level Category 1: $30 $10 – $18 per unit.

Level Category 2: $75 $20 – $50 per unit.

Level Category 3: $400 $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	718.111(12)(a)11F.S. 61B-22.002, F.A.C.	Insufficient or incomplete accounting records. Insufficient detail in the accounting records. Failure to maintain sufficient accounting records.	2
2.	Accounting Records	718.111(12)(a)11., FS.	Failure to maintain separate accounting records for each condominium.	2
3.	Assessing	718.112(2)(g), FS.	Assessments not sufficient to meet expenses. Failure to assess at sufficient amounts.	1
4.	Assessing	718.112(2)(g), F.S.	Collecting assessments less frequently than quarterly	1
5.	Assessing	718.115(2), F.S.	Assessments not based upon the shares stated in the declaration of condominium. Failure to assess based upon proportionate share or as stated in the declaration of condominium.	2
6.	Assessing	718.115(4), F.S.	Assessments not properly apportioned among multiple condominiums.	2
7.	Assessing	718.116(3), F.S.	Failure to charge interest on past-due assessments.	1
8.	Assessing	718.116(1), (9), 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	718.110, 718.112, F.S.	Failure to follow method of amendment.	2
9.	Board	718.106(3), F.S. 718.123(1), F.S.	Unit owner denied access to unit or to common elements.	1
10.	Board	718.110, F.S.	Improperly amending the declaration of condominium.	2
11.	Board	718.111(1)(b), F.S.	Improper use of secret ballots, or use of proxies, by board members at a board meeting.	1
12.	Board	718.111(4), F.S.	Improper use fee.	1
13.	Board	718.111(7)(a), F.S.	Mortgaging or conveying association property without unit-owner approval.	2
14.	Board	718.111(11), F.S.	Failure to exercise best effort to insure the common elements and association property.	2
15.	Board	718.111(11)(h)(d), F.S.	Failure to maintain adequate fidelity bonding.	2
16.	Board	718.112(2)(b)2., F.S.	Improper use of general proxies. Use of non-conforming limited proxies.	1
17.	Board	718.112(2)(h), F.S.	Improperly amending the association bylaws.	2
18.	Board	718.112(2)(a)1., F.S.	Compensating officers or members of the board without documentary authority. Improper compensation of officers or directors.	1
19.	Board	718.112(2)(d)1., F.S.	Allowing ineligible person to serve on the board.	2
20.	Board	718.112(2)(d)1., F.S.	Failure to hold annual meeting.	2
21.	Board	718.112(2)(d)8., F.S. 61B-23.0021(1)(d)2., F.A.C.	Improperly filling a vacancy of an unexpired term on the board.	1
22.	Board	718.112(2)(j), F.S.	Improper removal of board member.	1
23.	Board	718.112(2)(i), F.S.	Improperly requiring transfer fees or security deposits. Requiring excessive transfer fees or security deposits.	1
24.	Board	718.113(1), F.S.	Failure to maintain common elements.	1
25.	Board	718.113(2), F.S.	Material alteration without unit-owner approval where required.	1
26.	Board	718.113(5), F.S.	Failure to adopt hurricane shutter specifications. Failure to approve hurricane shutters that meet specifications.	1
27.	Board	718.116(3), F.S.	Levying late fees without documentary authority.	1
28.	Board	718.303(3), F.S.	Imposing fines without documentary authority. Imposing fines without proper notice and hearing. Imposing excessive fines.	1
	Board	718.501(2)(a), F.S.	Failure to pay annual fees to the division.	2
29.	Board	718.112(c), F.S. 61B-23.001(2), F.A.C.	Excluding unit owners from board or committee meetings.	1
30.	Board	61B-23.001(4), F.A.C.	Employing an unlicensed manager when licensure is required.	2
31.	Budgets	718.112(2)(e), F.S.	Failure to propose/adopt budget for a given year.	2
32.	Budgets	61B-22.003(4)(a), F.A.C.	Failure to prepare a separate budget for each condominium operated by the association as well as for the association.	1
33.	Budgets	718.112(2)(e)2.c., F.S.	Developer increased assessments more than 115% without approval.	1
34.	Budgets	61B-22.003(1)(d), F.A.C.	Failure to provide for full funding of reserves in proposed budget.	1
35.	Budgets	61B-22.003(1)(e), (f), (g), F.A.C.	Failure to include reserve schedule in the proposed budget.	1
36.	Budgets	61B-22.003(1)(e), (f), (g), F.A.C. 61B-22.005(1), F.A.C.	Failure to include a required reserve item in proposed budget.	1
37.	Budgets	718.112(2)(f)2., F.S. 61B-22.005(3),(5), F.A.C.	Improper calculation of reserve requirements.	1
38.	Commingle	718.111(14), F.S.	Commingling association funds with non-association funds.	2
39.	Commingle	718.111(14), F.S.	Association funds deposited in account not in association’s name.	1
40.	Commingle	718.111(14), F.S. 61B-22.005(2), F.A.C.	Commingling reserve funds with operating funds.	1
41.	Common Expenses	718.103(9), 718.115(1), F.S. 61B-23.003(3), F.A.C.	Using association funds for other than common expenses.	2
	Converter Reserves	718.618(1), F.S. 61B-24.007, F.A.C.	Failure to calculate converter reserves properly.	2
	Converter Reserves	718.618(2) (a), F.S.	Failure to fund converter reserves in a timely manner.	2
42.	Converter Reserves	718.618(3)(b), F.S.	Improper use of converter reserves.	1
	Converter Reserves	61B-22.003(1)(e)5., F.A.C. 61B-22.006(3)(a)6., F.A.C. 61B-22.006(6)(c), F.A.C.	Failure to include converter reserve disclosures in the proposed budget, year‑end financial statements, or annual financial report.	1
43.	Development	718.202(1), F.S. 61B-17.009(1), F.A.C.	Developer using alternative assurance, such as a Letter of Credit or Surety Bond, in lieu of escrow account, without prior approval of the director Director.	3
	Development	718.202(1) or (6), F.S.	Failure to establish an escrow account or place funds therein.	3
44.	Development	718.202(1), F.S.	Failure to place purchase deposits in escrow.	3
45.	Development	718.202(6), F.S.	Failure to place reservation deposits in escrow.	3
46.	Development	718.301(1), (2), (4), F.S.	Failure to transfer association control.	2
47.	Development	718.301(4)(a)4., F.S.	Failure to deliver the minute books upon transfer of association control.	2
48.	Development	718.301(4)(c), F.S.	Failure to deliver the financial records (other than the audit) within 90 days of transfer of association control.	2
49.	Development	718.301(4)(d), F.S.	Failure to deliver the association funds upon transfer of association control.	2
50.	Development	718.301(4)(e), F.S.	Failure to deliver all tangible personal property of the association upon transfer of association control.	2
51.	Development	718.301(4)(f), F.S.	Failure to deliver the plans, specifications and affidavit upon transfer of association control.	1
52.	Development	718.301(4)(g), F.S.	Failure to deliver the list of contractors upon transfer of association control.	1
53.	Development	718.301(4)(h), F.S.	Failure to deliver copies of insurance policies upon transfer of association control.	1
54.	Development	718.301(4)(k), F.S.	Failure to deliver copies of all warranties upon transfer of association control.	1
55.	Development	718.301(4)(m), F.S.	Failure to deliver copies of all leases to which the association is a party upon transfer of association control.	1
56.	Development	718.301(4)(n), (o), F.S.	Failure to deliver copies of all contracts involving the association upon transfer of association control.	1
57.	Development	718.403(1), F.S.	Continuing to develop phases after expiration of phase deadline.	3
	Development	718.403(1),(2), F.S. 61B-17.003(9), F.A.C.	Failure to follow proper method to amend documents to alter phase development plan.	3
58.	Development	718.403(1), (2), F.S.	Improperly amending declaration to provide for phased development.	2
59.	Development	61B-17.003, F.A.C.	Improperly amending declaration to alter phased development plan.	2
60.	Development	718.502(2)(a), F.S. 61B-17.001(1)(b), F.A.C.	Accepting reservation deposits prior to filing reservation program with the division. Accepting deposits prior to filing reservation and escrow agreements with the division.	3
61.	Development	718.502(2)(a), F.S. 61B-17.001(1)(a), F.A.C.	Offering sales contracts prior to initial filing with division and acceptance for form.	3
62.	Development	718.502(3), F.S. 61B-17.006(2), F.A.C.	Failure to file amendments to documents previously filed with the division.	1
63.	Development	718.503(1), (3), 718.618(10), F.S. 61B-18.001(10), F.A.C.	Using sales contracts without required disclosures.	3
64.	Development	718.503(1)(b), (3), F.S.	Failure to allow purchaser to rescind contract upon receipt of timely notice from purchaser. provide documents to purchasers.	3
65.	Development	718.503(3), F.S. 61B-17.001(6), F.A.C.	Closing on sales of units prior to the division’s approval of the filing with division and acceptance for content.	3
66.	Development	61B-17.001(3), F.A.C.	Failure to provide recording information to the division.	1
67.	Development	718.502(3), F.S. 61B-17.003(3), F.A.C.	Offering sales contracts on units within a phase prior to filing phase documents with the division.	3
68.	Development	718.504(10), F.S. 61B-18.008(4), F.A.C.	Rental program not disclosed in prospectus or amendment.	1
69.	Elections	718.112(2)(d), F.S. 718.301(1), (2), F.S. 61B-23.0021(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
70.	Elections	718.112(2)(d)3., F.S., 61B-23.0021(3), F.A.C.	Improper nomination procedures in election.	2
71.	Elections	718.112(2)(d)3., F.S. 61B-23.0021(4), F.A.C.	Failure to provide, or timely provide, first notice of election.	21
72.	Elections	61B-23.0021(6), F.A.C.	Failure to provide candidate a receipt for written notice of candidacy.	1
73.	Elections	61B-23.0021(8), F.A.C.	Second notice of election included comments by board about candidates.	2
74.	Elections	718.301(2), F.S.	Failure to provide, or timely provide, first notice of turnover election.	2
75.	Elections	718.112(2)(d)3., F.S. 61B-23.0021(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
76.	Elections	61B-23.0021(8), F.A.C.	Voters allowed to rescind or change their previously cast ballots.	1
77.	Elections	718.112(2)(d)3, F.S.; 61B-23.0021(7); F.A.C.	Association altered or edited candidate information sheets.	2
78.	Elections	61B-23.0021(2), F.A.C.	Election not held at time and place of annual meeting.	1
79.	Elections	718.112(2)(d)3., F.S.	Failure to use ballots or voting machines.	2
80.	Elections	718.112(2)(d)3., F.S. 61B-23.0021(5), F.A.C.	Ballot included candidate who did not submit timely notice of candidacy.	2
81.	Elections	61B-23.0021(7), F.A.C.	Distributing candidate information sheets consisting of more than one page.	1
82.	Elections	61B-23.0021(10)(a), F.A.C.	Inner envelopes not placed in separate receptacle before being opened.	2
83.	Elections	718.112(2)(d)3., F.S. 61B-23.0021(9), F.A.C.	Failure to include all timely submitted names of eligible candidates on the ballot.	21
84.	Elections	61B-23.0021(9), F.A.C.	Ballots not uniform. Ballots identify voter. Ballot contained space for write-in candidate.	2
85.	Elections	61B-23.0021(10), F.A.C.	Outer envelopes not checked against list of eligible voters.	1
86.	Elections	61B-23.0021(10)(a), (b), F.A.C.	Counting ineligible ballots. Not counting ballots in the presence of unit owners.	1
87.	Elections	61B-23.0021(10), F.A.C.	Failure to count properly cast ballots.	1
88.	Elections	61B-23.0021(10), F.A.C.	Outer envelopes opened prior to election meeting. Outer envelopes not opened in presence of unit owners.	2
89.	Elections	61B-23.0021(10)(a), F.A.C.	Not counting ballots in the presence of unit owners.	2
90.	Elections	61B-23.0021(10)(a), F.A.C.	Ballots not counted by impartial committee.	1
91.	Elections	61B-23.0021(10)(b), F.A.C.	Failure to notice meeting to verify outer envelope information.	1
92.	Elections	61B-23.0021(10)(c), F.A.C.	Failure to hold or timely hold runoff election.	2
93.	Elections	61B-23.003(7)(f), F.A.C.	Developer improperly voted for a majority of the board. Improperly permitting a developer to vote for a majority of the board.	2
94.	Elections	61B-23.0021(10)(a), F.A.C.	No blank ballots available at election meeting.	2
95.	Final Order	718.501(1)(d)64., F.S.	Failure to comply with final order of the division.	2
96.	Guarantee	718.116(9), F.S. 61B-22.004(1), F.A.C.	Guarantee not properly established.	2
97.	Guarantee	718.116(9)(a), F.S. 61B-22.004(3), F.A.C.	Improperly assessing unit owners.	2
98.	Guarantee	718.116(9)(a), F.S. 61B-22.004(4)(5), F.A.C.	Failure to advance sufficient cash. Guarantee deficit not funded.	2
99.	Guarantee	718.116(9)(b), F.S. 61B-22.004(4), F.A.C.	Expending capital contributions or special assessment funds during guarantee period.	2
100.	Guarantee	61B-22.004(2), F.A.C.	Guarantee period unclear/not specified, not properly extended.	2
	Guarantee	61B-22.004(4)(a), F.A.C.	Not providing sufficient cash/resources to provide payment on a timely basis of all common expenses including full funding of reserves.	2
	Guarantee	61B-22.004(4)(b), F.A.C. 61B-22.004(5), F.A.C.	Amount owed by the guarantor for the guarantee period not properly calculated.	2
101.	Records	718.111(12)(a)12., F.S.	Failure to maintain election or voting materials for one year.	1
102.	Records	718.111(12)(a)6., F.S.	Failure to maintain minutes of meetings.	1
103.	Records	718.111(12)(a)8., F.S.	Failure to maintain a copy of a current insurance policy.	1
104.	Records	718.111(12)(a)9., F.S.	Failure to maintain copy of management agreement or other contract under which the association has obligations.	1
105.	Records	718.111(12)(a)10. F.S.	Failure to maintain bills of sale or transfer.	1
106.	Records	718.111(12)(a)13. F.S.	Failure to maintain rental records.	1
107.	Records	718.111(12)(c), F.S. 718.115(1)(a), F.S.	Requiring a unit owner to pay a fee for access to association records.	1
108.	Records	718.111(12)(b), F.S.	Failure to maintain records within Florida.	2
109.	Records	718.111(12)(b), (c), F.S.	Failure to provide access to records. Failure to allow copying of records.	1
	Records	718.301(4), F.S.	Failure to deliver one or more association records upon transfer of association control.	2
110.	Reporting	718.111(13), F.S.	Failure to provide, or timely provide, the annual financial report or statements.	2
	Reporting	718.111(13), F.S.	Failure to provide year‑end financial statements in a timely manner.	1
	Reporting	718.111(13), F.S.	Failure to provide year‑end financial statements.	2
111.	Reporting	718.111(13)(d), F.S.	Prior to turnover of control of the association, developer was included in vote to lower reporting waive audit requirement after the first two years of operation.	2
	Reporting	718.301(4)(c), F.S.	Failure to provide turnover financial statements in a timely manner.	1
	Reporting	718.301(4)(c), F.S. 61B-22.0062(1), F.A.C.	Failure to provide turnover financial statements. Turnover financial statements not audited. Failure of turnover financial statements to cover entire period.	2
112.	Reporting	718.301(4)(c), F.S. 61B-22.0062(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
113.	Reporting	61B-22.0062(2)(b), F.A.C.	Failure to state the total cash payments made by the developer to the association in the turnover audit.	1
114.	Reporting	61B-22.006(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
115.	Reporting	61B-22.006(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
116.	Reporting	61B-22.006(2), F.A.C.	Failure to include one or more components of the annual/turnover year-end financial statements (incomplete).	1
117.	Reporting	61B-22.006(3)(a)1.- 6., (6), F.A.C.	Failure to make significant reserve fund disclosures in annual/turnover year-end financial statements or annual financial report or annual financial report.	1
118.	Reporting	61B-22.006(4), F.A.C.	Failure to include reserve fund disclosures and/or revenues, expenses, and changes in fund balances for each condominium and the association in the annual financial statements.	1
119.	Reporting	61B-22.006(3)(a)76., (6), F.A.C.	Failure to include converter-reserve disclosures in the annual financial statements or annual financial report.	1
120.	Reporting	61B-22.006(4), F.A.C.	Failure to include reserve fund disclosures and/or revenues, expenses, and changes in fund balances for each condominium and the association in the annual financial statements of a multi-condominium association.	1
121.	Reporting	61B-22.006(3)(c), (6)(c), F.A.C.	Failure to include the special assessments disclosures in the annual financial statements or annual financial report.	1
122.	Reporting	61B-22.006(6)(e), F.A.C.	Failure to separately present revenues and expenses for each condominium and the association in the annual financial report of a multi-condominium association.	1
	Reporting	61B-22.006(3)(e), F.A.C. 61B-22.0062(2)(d), F.A.C.	Guarantee disclosures incomplete in, or missing from, turnover financial statements or year‑end financial statements.	1
123.	Reporting	61B-22.006(3)(e), F.A.C.	Guarantee disclosures incomplete in, or missing from, annual financial statements.	1
124.	Reporting	61B-22.0062(2)(d), F.A.C.	Guarantee disclosures incomplete in, or missing from, turnover financial statements.	2
125.	Reporting	61B-22.004(5), F.A.C.	Improper calculation of guarantor’s final obligation.	2
	Reporting	61B-22.006(6)(a),(b), F.A.C 718.111(13)(b), F.S.	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, or disclosures on limited common elements.	1
126.	Reporting	718.111(13)(b), F.S. 61B-22.006(6)(a), F.A.C.	Annual financial report not prepared on a cash basis.	1
127.	Reporting	718.111(13)(b)3., F.S.	Annual financial report does not include specified receipt or expenditure items.	1
128.	Reporting	61B-22.006(3)(d), (6)(d), F.A.C.	Annual/turnover financial statements or annual financial report do not disclose revenues and expenses related to limited common elements.	1
	Reporting	718.111(13)(d), F.S.	Providing lower level of reporting for year‑end financial statements than required.	2
129.	Reporting	718.111(13)(a), F.S.	Providing lower level of annual financial reporting than required based on number of units and annual revenues.	2
130.	Reporting	61B-22.0062(2), F.A.C.	Turnover Failure of turnover financial statements fail to present revenues and expenses for each fiscal year and interim period.	2
131.	Reporting	61B-22.0062(2)(a)-(c), F.A.C.	Turnover financial statements fail to include required disclosures omit disclosure of common expenses paid by the developer.	12
	Reserves	718.112(2)(f)2., F.S. 61B-22.005(3), F.A.C.	Failure to calculate reserve funds properly.	1
132.	Reserves	718.112(2)(f)2., F.S. 61B-22.005(6), F.A.C.	Failure to fund reserves in a timely manner. Failure to fully fund reserves.	1
133.	Reserves	718.112(2)(f)2., F.S. 61B-22.005(6), (8), F.A.C.	Failure to follow proper method to waive or reduce reserve funding.	1
134.	Reserves	718.112(2)(f)2., F.S.	Prior to turnover of control of the association, developer included in vote to waive/reduce reserve funding after first two years of operation.	1
135.	Reserves	718.112(2)(f)3., F.S. 61B-22.005(7), F.A.C.	Using reserve funds for other purposes without proper unit owner approval. Failure to obtain unit owner approval prior to using reserve funds for other purposes.	2
136.	Special Assessment	718.116(10), F.S.	Using special assessment funds for other purposes. Failure to use special assessment funds for intended purposes.	1
137.	Special Assessment	718.116(10), F.S.	Special assessment notice does not state purpose of assessment.	1

Rulemaking Specific Authority 718.501(1)(d)4., (f) FS. Law Implemented 718.301, 718.501(1)(d)4. FS. History–New 6-4-98, Amended_________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Michael Cochran, 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: Charlie Liem, Interim Secretary, Department of Business and Professional Regulation

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: June 21, 2010

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: August 28, 2009