DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
Division of Florida Condominiums, Timeshares and Mobile Homes
RULE NOS.:RULE TITLES:
61B-21.002Educational Resolution
61B-21.003Enforcement 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 subparagraph 120.54(3)(d)1., F.S., published in Vol. 44 No. 193, October 3, 2018 issue of the Florida Administrative Register.
THE FULL TEXT OF THE PROPOSED RULE IS:
61B-21.002 Minor Violations.
(1) through (4) No change.
(5) Upon a determination of an association’s failure to comply with a Notice of Noncompliance, an enforcement action shall be taken in which the division shall impose a civil penalty between $5 and $10, 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 aggravating or accepted mitigating circumstances, pursuant to rule 61B-21.003(3), F.A.C. The minimum total penalty to be assessed shall be calculated according to these guidelines or $500, whichever amount is greater. In no event shall a penalty of more than the statutory maximum be imposed for a single minor violation $2,500 be imposed for a single minor violation. 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 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.The provisions of this rule chapter shall not be construed so as to prohibit or limit any other adminitrative, civil, or criminal action that may be brought, including notices to cease and desist.
Rulemaking Authority 718.501(1)(d)6.,(f) FS. Law Implemented 120.695, F.S., 718.501(1)(d)64.,(k) FS. History–New 6-4-98, Amended .
61B-21.003 Penalty Guidelines.
(1) No change.
(2) Penalties will be assessed beginning with the middle of the specified range and adjusted up or down based upon any aggravating or accepted mitigating circumstances. The minimum total penalty to be assessed shall be calculated according to these guidelines or $500 $1,000, whichever amount is greater. In no event shall a penalty of more than the statutory maximum be imposed for a single violation. A penalty range of $10 to $30 per unit are set forth for each violation. The absence of any violation from this rule chapter shall not be construed to indicate that the violation does not cause substantial harm or is not subject to a penalty. In any instance where the violation is not listed in this rule chapter, the penalty will be determined by consideration of the closest analogous violation.
Category
Statute or Rule
Description of Conduct/Violation
Accounting Records
61B-22.002, F.A.C.
Insufficient or incomplete accounting records.
Accounting Records
Failure to maintain separate accounting records for each condominium.
Assessing
Assessments not sufficient to meet expenses.
Assessing
Collecting assessments less frequently than quarterly
Assessing
Assessments not based upon the shares stated in the declaration of condominium or required by statute.
Assessing
Assessments not properly apportioned among multiple condominiums.
Assessing
Failure to charge interest on past-due assessments.
Assessing
Developer or other owner improperly excused from paying assessments.
Board
Improperly amending the declaration of condominium to change the proportion or percentage by which the unit owner shares the common expenses of the condominium and owns the common surplus of the condominium.
Board
Improper use fee.
Board
Mortgaging or conveying association property without unit-owner approval.
Board
Failure to maintain adequate fidelity bonding.
Board
Compensating officers or members of the board without documentary authority.
Board
Improper transfer fees or security deposits.
Board
Levying late fees without documentary authority.
Board
Imposing fines without proper notice and opportunity for hearing. Imposing excessive fines. Improper suspension of voting rights without proper notices.
Board
Allowing ineligible person to run for board of administration.
Board
Failure to obtain competitive bids on contracts that exceed five percent of the association’s budget.
Budgets
Failure to propose/adopt budget for a given year.
Budgets
Failure to include a schedule of limited common element expenses in budget.
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.
Budgets
61B-22.003(1)(e), (f), (g), F.A.C.
Failure to include reserve schedule in the proposed budget. Failure to disclose converter-reserve funding.
Budgets
61B-22.005(3), (5) F.A.C.
Improper calculation of reserve requirements.
Commingle
Commingling association funds with non-association funds.
Commingle
61B-22.005(2), F.A.C.
Commingling reserve funds with operating funds.
Common Expenses
61B-23.003(3), F.A.C.
Using association funds for other than common expenses.
Conflict of Interest
Contracting with a service provider owned by a board member.
Conflict of Interest
718.3027(1),(2),(4), F.S.
Failing to properly disclose a conflict of interest.
Converter Reserves
Improper use of converter reserves.
Debit Card
Use of an association debit card for any association expense.
Elections
61B-23.0021(2), F.A.C.
Failure to hold an annual election.
Elections
Failure to use ballots or voting machines.
Elections
61B-23.0021(8), F.A.C.
Failure to provide space for name, unit number, or signature on outer envelope.
Elections
61B-23.0021(4), F.A.C.
Failure to provide, or timely provide, first notice of election.
Elections
61B-23.0021(3), F.A.C.
Improper nomination procedures in election.
Elections
61B-23.0021(2), F.S.
Election not held at time and place of annual meeting.
Elections
61B-23.0021(6), F.A.C.
Failure to provide candidate with a receipt for written notice of candidacy.
Elections
61B-23.0021(7), (8), F.A.C.
Failure to provide, or timely provide, second notice of election or omitting ballots, envelopes, or candidate information sheets.
Elections
61B-23.0021(5), F.A.C.
Ballot included a candidate who is ineligible. Ballot not including an eligible candidate.
Elections
61B-23.0021(8), F.A.C.
Voters allowed to rescind or change their previously cast ballots.
Elections
61B-23.0021(8), F.A.C.
Second notice of election and accompanying documents included comments by board about candidates.
Elections
61B-23.0021(10)(a), F.A.C.
Ballots not counted by impartial committee.
Elections
61B-23.0021(7), F.A.C.
Association altered or edited candidate-information sheets.
Elections
61B-23.0021(10)(a), F.A.C.
Inner envelopes not placed in separate receptacle before being opened.
Elections
61B-23.0021(9), F.A.C.
Ballots not uniform. Ballots identify voter. Ballot contained space for write-in candidate.
Elections
61B-23.0021(10), F.A.C.
Outer envelopes not checked against list of eligible voters.
Elections
61B-23.0021(10)(a), (b), F.A.C.
Counting ineligible ballots.
Elections
61B-23.0021(10), F.A.C.
Failure to count properly cast ballots.
Elections
61B-23.0021(10), F.A.C.
Outer envelopes opened prior to election meeting.
Outer envelopes not opened in presence of unit owners.
Elections
61B-23.0021(10)(a), F.A.C.
Not counting ballots in the presence of unit owners.
Elections
61B-23.0021(10)(b), F.A.C.
Failure to notice meeting to verify outer envelope information.
Elections
61B-23.0021(10)(c), F.A.C.
Failure to timely hold a runoff election.
Elections
61B-23.003(7)(f), F.A.C.
Improperly permitting a developer to vote for a majority of the board.
Elections
61B-23.0021(10)(a), F.A.C.
No blank ballots available at election meeting.
Estoppel Certificate
Failure to timely provide an estoppel certificate or failure of the certificate to contain all required components.
Final Order
Failure to comply with final order of the division.
Fiduciary Duty
Violating a fiduciary duty.
Investigation
Failure to reasonably cooperate with an investigation.
Property
Failing to get approval for acquisition, conveyance, lease, or mortgage of association real property.
Property
Improper purchase of unit at a foreclosure sale.
Records
Failure to maintain official records.
Records
Requiring a unit owner to pay a fee for access to association records.
Records
Failure to maintain records within 45 miles, or within the county, of the condominium property.
Records
718.111(12)(b), (c), F.S.
Failure to timely provide access to records.
Failure to allow scanning or copying of records.
Records
Failure of outgoing board or committee member or relinquish all official records and property of the association in his or her possession or under their control to the incoming board within 5 days after the election.
Reporting
Failure to timely provide annual financial report or statements.
Reporting
61B-22.006(1), F.A.C.
Failure to timely prepare annual financial statements using fund accounting. Failure to prepare annual financial statements on accrual basis.
Reporting
61B-22.006(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.
Reporting
61B-22.006(2), F.A.C.
Failure to include one or more components of the annual financial statements (incomplete).
Reporting
61B-22.006(3)(a)1.,6., F.A.C.
61B-22.006(6), F.A.C.
Failure to make significant reserve fund disclosures in annual financial statements or annual financial report.
Reporting
61B-22.006(3)(a)7., F.A.C.
61B-22.006(6), F.A.C.
Failure to include converter reserve disclosures in the annual financial statements or annual financial report.
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.
Reporting
61B-22.006(5), F.A.C.
Failure to show developer assessments separately from other assessment revenues in the annual financial report (statement).
Reporting
61B-22.006(3), F.A.C.
61B-22.006(6)(c), F.A.C.
Failure to include the special assessments disclosures in the annual financial statements or annual financial report.
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.
Reporting
61B-22.006(3)(e), F.A.C.
Guarantee disclosures incomplete or missing from annual financial statements.
Reporting
61B-22.004(5), F.A.C.
Improper calculation of guarantor’s final obligation.
Reporting
61B-22.006(6)(a), F.A.C.
Annual financial report not prepared on a cash basis.
Reporting
718.111(13)(b)3., F.S.
Annual financial report does not include specified receipt or expenditure items.
Reporting
61B-22.006(3)(d), F.A.C.
61B-22.006(6)(d), F.A.C.
Annual financial statements or annual financial report does not disclose revenues and expenses related to limited common elements.
Reporting
Providing lower level of annual financial reporting than required based on the number of units and annual revenues.
Reserves
61B-22.005(6), F.A.C.
Failure to fund reserves in a timely manner. Failure to fully fund reserves.
Reserves
61B-22.005(8), F.A.C.
Failure to follow proper method to waive or reduce reserve funding.
Reserves
61B-22.005(7), F.A.C.
Using reserve funds for other purposes without proper unit owner approval.
Special Assessment
Using special assessment funds for other purposes.
Special Assessment
Special assessment notice does not state purpose of assessment.
Website
Failing to include required documents on website.
(3) through (4) No change.
Rulemaking Authority 718.501(1)(d)6., (f), FS. Law Implemented 718.501(1)(d)6., FS. History–New 6-4-98, Amended 9-3-13., .
