The purpose of these rules is to establish the disciplinary violations for which licensed community association managers and community association management firms may receive a notice of non-compliance or citation. Furthermore, these rules ...

 

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
Regulatory Council of Community Association Managers

RULE NOS.:RULE TITLES:
61E14-5.001Citations
61E14-5.002Mediation
61E14-5.003Notices of Non-Compliance
PURPOSE AND EFFECT: The purpose of these rules is to establish the disciplinary violations for which licensed community association managers and community association management firms may receive a notice of non-compliance or citation. Furthermore, these rules establish violations which may proceed through the disciplinary process through mediation rather than through the disciplinary process.
SUMMARY: The proposed rules establish the disciplinary violations for which licensed community association managers and community association management firms may receive a notice of non-compliance or citation and those violations which may proceed through the disciplinary process through mediation rather than through the disciplinary process.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:
The Agency has determined that this will 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 been prepared by the agency.
No SERC was required for Rules 61E14-5.002 and 61E14-5.003, F.A.C. The following is a Summary of the Statement of Estimated Regulatory Costs created for Rule 61E14-5.001, F.A.C., approved by the Council:
• The rules are not likely to directly or indirectly have an adverse impact on economic growth; private-sector job creation or employment, or private-sector investment in excess of $1 million in the aggregate within 5 years after the implementation of the rules.
• The rules are not likely to directly or indirectly have an adverse impact on business competitiveness, including the ability of persons doing business in the state to compete with persons doing business in other states or domestic markets, productivity, or innovation in excess of $1 million in the aggregate within 5 years after the implementation of the rules.
• The rules are not likely to directly or indirectly to increase regulatory costs, including any transaction costs, in excess of $1 million in the aggregate within 5 years after the implementation of the rules.
• The number of individuals and entities likely to be required to comply with the rules based on the number of licensed Community Association Managers will be approximately 252.
• The department will not incur any costs for implementing or enforcing the proposed rules.
• There will be no cost to any other state and local government entities of implementing the proposed rules.
• The total estimated costs to the licensees in a 5 year period is not in excess of $1 million in the aggregate within 5 years after the implementation of the rules.
• The estimated number of small businesses that would be subject to the rules is between 1000-4999.
• There is no small county or small city that will be impacted by the rules.
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 Commission prepared a SERC for Rule 61E14-5.001, F.A.C., and determined that it did not exceed any of the criteria established in Section 120.541(2)(a), F.S. The Commission conducted an analysis of proposed Rule 61E14-5.002 and 61E14-5.003, F.A.C., potential economic impact and determined that it did not exceed any of the criteria established in Section 120.541(2)(a), F.S.
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: 120.695, 468.4315(3), 455.2235(1), 455.224, 455.225 FS.
LAW IMPLEMENTED: 120.695, 455.2235(1), 455.224, 455.225 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: R. Kathleen Brown-Blake, Assistant General Counsel, Office of the General Counsel, 1940 North Monroe Street, Suite 42, Tallahassee, Florida 32399, [phone]

THE FULL TEXT OF THE PROPOSED RULE IS:

61E14-5.001  Citations.

(1) Definitions. As used in this rule:

(a) “Citation” means an instrument which meets the requirements set forth in Section 455.224, F.S., and which is served upon a subject for the purpose of assessing a penalty in an amount established by this rule;

(b) “Subject” means the licensee, applicant, person, partnership, corporation, or other entity alleged to have committed a violation designated in this rule.

(2) In lieu of the disciplinary procedures contained in Section 455.225, F.S., the Department is hereby authorized to dispose of any violation designated herein by issuing a citation to the subject within six months after the filing of the complaint which is the basis for the citation.

(3) Citations shall be issued for the first two offenses of the same violation only.

(4) The Department shall issue a citation including a penalty for each applicable statutory or rule violation set forth below:

Statutory  or Rule Violation	Description of Violation	Citation Amount for First Violation	Citation Amount for Second Violation
Section 468.432(1), F.S.	Holding one’s self out to the public as being able to manage a community association, or actively managing a community association with an inactive or delinquent license.	$125	$250
Section 468.432(1), F.S.	Holding one’s self out to the public as being able to manage a community association, or actively managing a community association with a void license or without being licensed to do so.	$250`	$500
Section 468.432(2), F.S.	Operating a community association management firm or holding the community association management firm out to the public as being able to engage in the business of community association management with an inactive or delinquent license.	$125	$250
Section 468.432(2), F.S.	Unless otherwise permitted in Chapter 468, Part VIII, F.S., performing community association management services in a community association management firm which does not have a license or is working on a void license.	$250	$500
Section 468.432, F.S.	Employing a person as a community association manager with an inactive or delinquent license.	$125	$250
Section 468.432(2), F.S.	Operating a community association management firm or holding the community association management firm out to the public as being able to engage in the business of community association management with an inactive or delinquent license.	$100	$250
Paragraph 61E14-2.001(6)(b), F.A.C.	Failing to provide access to association records, for the purpose of inspecting or photocopying the same, to a person entitled to such by the law, as set forth in Section 718.111(12)(c), F.S.	$200	$500
Paragraph 61E14-2.001(6)(d), F.A.C.	Failing to maintain his or a management firm’s records, or the records of any applicale community association, to the extent charged with the responsibility of maintaing records, in accordance with the laws and documents requiring or governing the records.	$250	$500

 

(5) Prior to issuance of the citation, the Department must confirm that the violation has been corrected or is in the process of being corrected. If the violation is a substantial threat to the public health, safety, and welfare, such potential for harm must be removed prior to issuance of the citation.

(6) Once the citation becomes a final order, the citation and complaint become a public record pursuant to Chapter 119, F.S., unless otherwise exempt from the provisions of Chapter 119, F.S. The citation and complaint may be considered as aggravating circumstances in future disciplinary actions pursuant to Rule 61G2-7.030, F.A.C.

(7) With regards to first offenses, the Department’s Office of the General Counsel shall return any complaint, which fits the violation descriptions above, to the Division of Regulation for the issuance of a citation, where appropriate. 

Rulemaking Authority 468.4315(3), 455.22 FS. Law Implemented 455.224 FS. History–New __________.

 

61E14-5.002  Mediation.

The following alleged violations may be resolved by mediation using the procedure adopted by the Department pursuant to Section 455.2235, F.S.:

(1)  Paragraph 61E14-2.001(2), F.A.C., Making an untrue statement of material fact or failing to state a material fact.

(2) Paragraph 61E14-2.001(4)(a), F.A.C., Failing to exercise due professional care in the performance of community association management services.

(3) Paragraph 61E14-2.001(4)(b), F.A.C., Knowingly failing to comply with the requirements of the documents by which the association is created or operated so long as such documents comply with the requirements of law.

(4) Paragraph 61E14-2.001(6)(a), F.A.C., Withholding possession of any original books, records, accounts, funds, or other property of a community association when requested by the community association to deliver the same to the association upon reasonable notice.

(5) Paragraph 61E14-2.001(6)(b), F.A.C., Denying access to association records, for the purpose of inspecting or photocopying the same, to a person entitled to such by the law.

(6) Paragraph 61E14-2.001(6)(d), F.A.C., Failing to maintain his or a management firm’s records, and the records of any applicable community association, to the extent charged with the responsibility of maintaing records, in accordance with the laws and documents requiring or governing the records.

(7) Paragraph 61E14-2.001(8)(a), F.A.C., Committing acts of gross negligence or gross misconduct in the pursuit of community association management or any other profession for which a state or federal license is required or permitted.

(8) Section 455.227(1)(m), F.S., Making deceptive, untrue, or fraudulent misrepresentations, in or related to the practice of a profession, or employing a trick or scheme, in or related to the practice of a profession.

Rulemaking Authority 468.4315(3), 455.2235 FS. Law Implemented 455.2235 FS. History–New __________.

 

61E14-5.003  Notice of Non-Compliance.

(1) In accordance with Section 455.225(3), F.S., when a complaint is received, the agency may provide a licensee with a notice of non-compliance for an initial offense of a minor violation. Failure of a licensee to take action in correcting the violation within 15 days after notice may result in the institution of regular disciplinary proceedings. “Minor violations” as used in Section 455.225(3), F.S., are defined as follows:

(a) Violations of paragraph 61E14-2.001(6)(a), F.A.C.: Withholding possession of any original books, records, accounts, funds, or other property of a community association when requested by the community association to deliver the same to the association upon reasonable notice.

(b) Violations of paragraph 61E14-2.001(6)(b), F.A.C.:  Failing to provide access to association records, for the purpose of inspecting or photocopying the same, to a person entitled to such by the law, as set forth in Section 718.111(12)(c), F.S.

Rulemaking Authority 468.4315, 455.225(3) FS. Law Implemented 120.695, 455.225(3) FS. History–New __________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Regulatory Council of Community Association Managers
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Regulatory Council of Community Association Managers
DATE PROPOSED RULE APPROVED BY AGENCY HEAD:  November 30, 2012 and February 8, 2013

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: September 28, 2012