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Vote No For House Bill 305!

Vote No For House Bill 305!

  • Posted: Mar 22, 2021
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Vote No For House Bill 305!

Homeowners, tell your representative to Vote NO on House Bill 305! Do not let the insurance industry take away your rights with House Bill 305. Your voice counts! Call or email your representative today!

Vote No For House Bill 305!
Homeowners, tell your representative to Vote NO on House Bill 305! Do not let the insurance industry take away your rights with House Bill 305. Your voice counts!
Contact Representative Rommel at:
Capitol Office: (850)717-5106
District Office: (239)417-6200
Email at: Representative Rommel or
Click here for your representative:

 

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A newly filed bill by Senator Jason Pizzo, SB 1490, could create a significant change in terms of an association’s ability to invest the community’s operating and reserve funds in depositories other than a traditional bank or savings and loan.

A newly filed bill by Senator Jason Pizzo, SB 1490, could create a significant change in terms of an association’s ability to invest the community’s operating and reserve funds in depositories other than a traditional bank or savings and loan.

  • Posted: Feb 26, 2021
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A newly filed bill by Senator Jason Pizzo, SB 1490, could create a significant change in terms of an association’s ability to invest the community’s operating and reserve funds in depositories other than a traditional bank or savings and loan. 

 

For years there have been significant legal constraints on a condominium association’s ability to use reserve funds. In addition to the statutory requirement to obtain membership approval for non-designated reserve usage, the prevailing school of thought was that association funds could not be invested since investments can and do fail.

A newly filed bill by Senator Jason Pizzo, SB 1490, could create a significant change in terms of an association’s ability to invest the community’s operating and reserve funds in depositories other than a traditional bank or savings and loan.

The bill provides as follows:

“Unless otherwise prohibited in the declaration, and in accordance with s. 718.112(2)(f), an association, including a multicondominium association, may invest any funds in one or any combination of investment products described in this subsection.”

If this bill passes and an association invests funds in any type of investment product other than a depository account, the association must meet all of the following requirements:

  1. The board shall annually develop and adopt a written investment policy statement and select an investment adviser who is registered under s. 517.12, F.S. and who is not related by affinity or consanguinity to any board member or unit owner. Any investment fees and commissions may be paid from the invested reserve funds or operating funds.
  2. The investment adviser selected by the board shall invest any funds not deposited into a depository account in compliance with the prudent investor rule in s. 518.11, F.S. It is important to note that the statutory prudent investor rule is a test of conduct and not resulting performance. Under this statute, no specific investment or course of action is, taken alone, considered prudent or imprudent. Instead, the investment adviser is deemed to be acting as a fiduciary and he or she may invest in every kind of property and type of investment, subject to that statute. The fiduciary’s investment decisions are evaluated on the basis of whether he or she exercised reasonable business judgment regarding the anticipated effect on the investment portfolio as a whole under the facts and circumstances prevailing at the time of the decision or action. Although the proposed statute requires that funds invested be subject to insurance under the Securities Investor Protection Corporation, it is important to note that this insurance is only there if the brokerage firm fails, not if the investment turns out to be ill-advised and loses the association’s money.
  3. The investment adviser shall act as a fiduciary to the association in compliance with the standards set forth in the Employee Retirement Income Security Act of 1974 at 29 U.S.C. s. 1104(a)(1)(A)-(C).
  4. At least once each calendar year, the association shall provide the investment adviser with the association’s investment policy statement, the most recent reserve study report or a good faith estimate disclosing the annual amount of reserve funds which would be necessary for the association to fully fund reserves for each reserve item, and the financial reports.
  5. The investment adviser shall annually review these documents and provide the association with a portfolio allocation model that is suitably structured to match projected reserve fund and liability liquidity requirements. There must be at least thirty-six (36) months of projected reserves in cash or cash equivalents available to the association at all times.
  6. Portfolios managed by the investment adviser may contain any type of investment necessary to meet the objectives in the investment policy statement; however, portfolios may not contain stocks, securities, or other obligations that the State Board of Administration is prohibited from investing in under ss. 215.471, 215.4725, and 215.473, F.S. or that state agencies are prohibited from investing in under s. 215.472.

Lastly, the bill would exempt registered investment advisors from having their bids subjected to the competitive bidding requirements found in Section 718.3026, F.S.  The companion bill to SB 1490 is HB 1005 (Killebrew/Fine).

As more associations change their old habits and begin to fund reserves, the allure of more aggressive investment vehicles for these funds, which can be substantial amounts, is undeniable. However, the risk is also undeniable. As such, if this bill becomes law and the investment of reserves becomes available, boards are strongly encouraged to take an extremely cautious, measured approach with reserves.

While investment of your association’s operating and reserve funds might result in a substantially better return than a savings account, you might also see significant losses. The investment of association funds must be done with careful consideration of the demographic in your community, the age of your buildings and facilities, the required liquidity of your funds and, most importantly, the sensitivities and risk tolerance of your membership all taken into account. If your members fuss about your board’s landscaping decisions imagine the potential fallout if you make the wrong investment decisions!

 


Very truly yours,

Donna DiMaggio Berger, Founder & Executive Director
Community Association Leadership Lobby
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ACTION ALERT: The insurance industry is backing another bill that is trying to take away your rights and significantly reduce your coverage for roof damage.

ACTION ALERT: The insurance industry is backing another bill that is trying to take away your rights and significantly reduce your coverage for roof damage.

  • Posted: Jan 30, 2021
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The insurance industry is backing another bill that is trying to take away your rights and significantly reduce your coverage for roof damage.

The insurance industry is backing another bill that is trying to take away your rights and significantly reduce your coverage for roof damage. If passed, Senate Bill 76 could potentially cost Floridian homeowners millions of dollars.

We need homeowners and business owners in Tallahassee on Tuesday, February 2nd to be heard and oppose this bill.

 

Here are some highlights of the bill:
  • Insurance companies can limit coverage for roofs more than 10 years old based on a “roof reimbursement schedule.” This could result in significant out of pocket expenses for homeowners.
  • The roof reimbursement schedule limits coverage to a percentage of the amount to repair or replace the roof.

Coverage can be limited to:

  • 70% for metal roofs
  • 40% for concrete tile and clay tile roofs
  • 40% for wood shake and wood shingle roofs
  • 25% for all other roof types, including asphalt shingle roofs

 

  • Timeframe to report property damage claims, including Hurricanes, is reduced to 2 years!
  • Policyholders must send their insurer a Notice of Intent to file a lawsuit prior suing for recovery of insurance proceeds.
  • Notice of Intent must include: the amount of damages sought, a detailed estimate for repairs, the actions of the insurer that gave rise to the action, and the amount of attorney’s fees incurred by the insured policyholder.
  • Notice of Intent must be served at least 60 days before filing a lawsuit. Given the 90 day period insurers already have to adjust claims, adding 60 days means generally waiting 5 months from the date the claim was reported before being able to sue for failure to adequately pay the claim.
  • Limits policyholders’ ability to recover attorney’s fees in a lawsuit against their insurer, a right that has been guaranteed under Florida law for decades.

 

  READ the BILL

Insurance companies are making more in profits than ever before (read about the CEO earning $27 million here: https://www.palmbeachpost.com/news/state–regional/rate-hike-greedy-insurance-ceo-paid-27m-times-citizens-chief/DBgq9ulJnA3GHE0Ap6e8oJ/?template=ampart). Their profits are your losses!
We need every roofing company to bring a homeowner to the Tallahassee Civic Center on Tuesday, February 2, 2021, to testify against bad legislation backed by insurance companies. Please call your representative and tell them you oppose Senate Bill 76 because it is bad for property owners, insurance consumers and contractors. This could affect your home and your livelihood!
Homeowners, do not let the insurance industry take away your rights with Senate Bill 76. Your voice counts! Call or email your representative today!

 


At Cohen Law Group, It’s About Justice!

It’s more than a slogan, it’s our firm’s mantra. We are zealous in protecting your rights. We offer 24-hour availability through our answering service. Call us today.

(407) 478-4878

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Washington, D.C. Update: Bipartisan Emergency COVID Relief Act of 2020

Washington, D.C. Update: Bipartisan Emergency COVID Relief Act of 2020

  • Posted: Dec 10, 2020
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Washington, D.C. Update: Bipartisan Emergency COVID Relief Act of 2020

by  Omar Franco of Becker

Tuesday evening, the House passed HR 8900, an appropriations Continuing Resolution (“CR”) that extends current government funding levels through the end of Friday, December 18th. Its intent is to avoid disruption of relief efforts while Congress continues to work toward an agreement on a longer-term omnibus appropriations bill to fund the federal government for the FY2021. Further complicating negotiations is the renewed push on the Hill to pass additional COVID relief legislation. Any legislation to provide pandemic relief or economic stimulus before the end of the year will most likely need to pass as part of a broader appropriations package, intertwining the fate of both legislative efforts. The Senate is expected to pass the CR with enough time to allow President Trump time to sign it into law before midnight on Friday evening.

The bipartisan “908 coalition” continued efforts to reach agreement on the remaining sticking points of coronavirus legislation (state and local aid and liability reform) will garner most of the media attention as the legislative year ends, but the expected final passage of the CR is significant as well. In addition to giving Congress an additional week to find consensus on an omnibus bill, COVID legislation, or both by avoiding a shutdown, the CR included a few potentially notable health extenders as the pandemic is expected to worsen in the coming weeks. Medicare, Medicaid, FDA, and public health extenders included in this CR would:

  • Extend the Medicare work geographic index floor
  • Extend the delays of Medicaid disproportionate share hospital (DSH) reductions
  • Extend funding for low-income assistance programs including State health insurance programs like CHIP, aging and disability resource centers, and community health centers
  • Extend funding for the National Health Service Corps and teaching health centers that operate graduate medical education programs

To read the relief bill’s outline, please click here to read the Bill. Becker’s Federal Lobbying Team will continue to monitor these developments as they evolve and will share with you as soon as information becomes available.


 

Omar Franco is the Managing Director of Becker’s Washington, D.C., office. He currently represents a wide variety of clients including Fortune 500 companies, small businesses, higher education institutions, trade associations, non-profit organizations, and municipal governments

Omar Franco
Managing Director
Washington, D.C.
202.621.7122
202.731.3401
OFRANCO@beckerlawyers.com

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CALL’s COVID-19 Survey Results by CALL/Becker

CALL’s COVID-19 Survey Results by CALL/Becker

  • Posted: Sep 21, 2020
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CALL’s COVID-19 Survey Results

by CALL / Becker

During the Summer of 2020, CALL’s COVID-19 Survey was open for Floridians to share their experiences during the height of the pandemic.

More than 1,000 association directors, managers and residents took the time to share what steps helped them keep their communities safe as well as the challenges they encountered along the way.

While each of us tried to keep our heads above these uncharted waters when COVID-19 changed our daily lives overnight, none of us were truly alone. Volunteer boards throughout Florida, who encounter operational challenges under ordinary circumstances, soon found themselves having to make impactful decisions about amenity closures, guest restriction and safety protocols.

We hope the results of our COVID-19 survey give your board some food for thought as you manage your safety protocols during the remainder of our statewide State of Emergency which is currently not scheduled to expire until November 3.

For full COVID-19 survey results, please click here.

 

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Legal Update 2020 Summary: Florida Legislature passing several community association related bills this Season  By: Shayla Johnson Mount / Becker

Legal Update 2020 Summary: Florida Legislature passing several community association related bills this Season  By: Shayla Johnson Mount / Becker

  • Posted: Aug 18, 2020
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Legal Update 2020 Summary:  Florida Legislature passing several community association related bills this Season

By: Shayla Johnson Mount / Becker

The Florida Legislature was especially busy this past session filing, debating, and ultimately passing several community association related bills. Below is an outline of those bills and the potential impact on your community association this year.

 

  1. Emotional Support Animals – Chapter 2020-76 (Senate Bill 1084) – This long championed and highly anticipated bill managed to make it to the finish line this year to become law on July 1, 2020. This law amends portions of the Florida Fair Housing Act (Chapter 760.20, F.S.) to officially define an “emotional support animal” (“ESA”) and prohibit discrimination in housing against individuals with a disability-related need for an ESA. More specifically, the new law requires a housing provider (which for purposes of the law includes a community association) to make “reasonable accommodations” to allow for the individual’s ESA at no additional cost under certain circumstances. If the person’s disability is not readily apparent, the association can request additional supporting documentation from the person’s health care provider or other proof of disability (i.e.: proof of receipt of federal or state disability benefits). However, an association cannot inquire as to the person’s specific disability.  The new law also makes the individual directly responsible for any personal or property damage the ESA causes and also makes it a second-degree misdemeanor to falsify or misrepresent information or documentation concerning an individual’s need for an ESA.

 

  1. FireworksChapter 2020-11 (Senate Bill 140) – The new law prohibits a homeowners association from passing a board-rule banning the use of fireworks on certain “designated holidays,” including New Year’s Eve, New Year’s Day, and Independence Day. This law does not specifically apply to condominium associations and a homeowners association is still able to amend its Declaration to regulate or limit the use of fireworks within the community.

 

  1. Law Enforcement Vehicles 2020-5 (Senate Bill 476) – One of the first bills passed and approved by Governor DeSantis this session, is a law that prohibits a condominium, cooperative or homeowners association from prohibiting a law enforcement officer from parking his or her assigned vehicle in an area where the individual would otherwise have the right to park.

 

  1. State Reporting for 55+ Communities – Chapter 2020-153 (Senate Bill 255) – This law removes the requirement that 55+ communities must initially register, and biannually report its compliance status, to the Florida Commission on Human Relations. This bill does not eliminate the need for these communities to comply with federal reporting requirements.

 

  1. Housing Discrimination – Senate Bill 374 – This bill passed the House and Senate but, at the time of this writing, is still pending action by the Governor. If it becomes law, this bill will amend the Marketable Record Title Act  (Chapter 712, F.S.), to automatically extinguish and make void as a matter of law any “discriminatory restriction” on the basis of race, color, national origin, religion, gender or physical disability which are contained in an Association’s recorded governing documents.  The law would allow the board by majority vote to amend its governing documents to remove any such restrictions.

 

  1. Lease Requirements – Chapter 2020-102 (Senate Bill 469) – This law removes the requirement that a lease agreement must be signed by a subscribing witness.

 

  1. Florida Guaranty Insurance ClaimsChapter 2020-155 (House Bill 529) – This bill increases the amount of insurance available through the Florida Guaranty Insurance Fund from $100,000 to $200,000 for each condominium or HOA claim, where the association has the responsibility to insure residential units.

 

  1. Rental Agreements – Chapter 2020-99 (Senate Bill 1362) – Also known as the “Protecting Tenant at Foreclosure Act,” this law requires a party or entity who obtains a property at foreclosure that is subject to a pending lease agreement to provide to the tenant a 90-day notice to vacate.

 

Thankfully, Senate Bills 295 and 1488 did not pass, both of which would have significantly revised and limited the ability of a condo or homeowners association to bring construction defect claims against developers and builders on behalf of its members.  This year, the legislature revisited the controversial issue of regulating short term vacation rental (i.e.: Airbnb) through consideration of Senate Bill 1128 and House Bill 1011.  These bills would have prohibited cities and counties from passing ordinances regulating or limiting an owner’s ability to use their home or unit as a short-term vacation rental. Although neither bill specifically addressed an association’s ability to pass rules or regulations regarding short-term rentals, it is likely that this issue will return next year for further debate before the Legislature.  Prior to next year’s session, associations that are concerned with short-term rentals in their community should seriously consider amending their governing documents now as future versions of this bill may propose to limit an associations ability to regulate short-term rentals as well.


Shayla J. Mount is an Associate Attorney in Becker’s Community Association Practice Group. She focuses her practice on providing counsel and representation to homeowner and condominium associations throughout Central Florida. An experienced litigator,

she has handled collections litigation and served as general legal counsel for numerous homeowner and condominium association boards throughout Orange, Osceola, Seminole, Duval, and Sarasota Counties. Shayla regularly advises association boards on issues regarding vendor contracts and disputes, document amendments, and covenant enforcement issues.

She also has substantial experience handling a variety of civil litigation issues including small business and contracting actions, foreclosure defense, real estate transactions, and insurance disputes.

 

 

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Federal Coronavirus Legislation and Enforcing Your COVID-19 Protocols  by DONNA DIMAGGIO BERGER

Federal Coronavirus Legislation and Enforcing Your COVID-19 Protocols by DONNA DIMAGGIO BERGER

  • Posted: Apr 17, 2020
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Federal Coronavirus Legislation and Enforcing Your COVID-19 Protocols

by DONNA DIMAGGIO BERGER

Contact: dberger@beckerlawyers.com

I hope this CALL Alert finds each of you in continued good health.

The extent to which this pandemic has and will impact our private residential communities will not be known for some time. In the interim, we are urging our CALL members to take all recommended precautions to minimize the potential for community spread in their associations.

It is not surprising that some of your residents are pushing back against the COVID-19 protocols you’ve put in place for their protection.  As the weeks go on, you can expect even more violations as residents grow even more restless. However, it is important to remember that any individual who continues to use closed common areas, refuses to adhere to social distancing or enhanced sanitization guidelines or who has been ordered to self quarantine but refuses to do so is not committing a trivial violation. That resident is potentially putting his or her neighbors at serious risk of contracting COVID-19.  As such, boards must react swiftly to such violations.

If you have individuals who have arrived in your community from a hotspot where there has been substantial community spread who do not adhere to the 14-day quarantine order, the penalties can be quite severe. Any person who violates any isolation or quarantine directed by the Department of Health commits a misdemeanor of the 2nd degree punishable by imprisonment not to exceed 60-days and a fine of up to $500.  It is the duty of every state and county attorney, sheriff, police officer and other city and county officials to enforce the DOH’s quarantine order.  That being said, some local officials are stringently enforcing these orders while others are not.  In addition, you may have individuals who are not subject to a quarantine order but have nevertheless jumped the pool fence to continue accessing your closed pool or decided to keep using the fitness room. All of these violations require swift action on your part.

Please click here to read my latest column in the Miami Herald on enforcing your COVID-19 protocols. If you are experiencing violations of your COVID-19 protocols please contact me immediately to discuss your options.

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Many of you have been following the COVID-19 legislation Congress is passing and wondering whether the relief being offered will apply to your association.The Coronavirus Aid, Relief & Economic Security Act (CARES) is a $2 trillion relief package which allocates $350 billion to help small businesses keep their workers employed throughout this pandemic.  The Small Business Administration (SBA) will provide loans of up to $10 million which may be forgiven provided workers stay employed through the end of June known as the Paycheck Protection Program (PPP). The purpose for these loans is to allow small businesses to fund payroll and to make their mortgage, lease and utility payments. Unfortunately, community associations do not appear to currently be eligible for these payments as they do not fit within any of the eligible categories:

  • Small Businesses with fewer than 500 employees
  • 501(c)(3) organizations (charitable, religious or educational institutions)
  • 501(c)(19) organizations (veterans)
  • Tribal businesses
  • Individuals who operate a sole proprietor
  • Individuals who are independent contractors

There is confusion in some quarters about the difference between a not-for-profit corporation and a nonprofit. Community associations fit within the former category as they are not-for-profit corporations.However, community associations could qualify for Economic Injury Disaster Loans (EIDL) which are low interest loans of up to $2 million with principal and interest deferment at the Administrator’s discretion and are available to pay expenses that could have been met had the disaster not occurred and include payroll and other operating expenses. Obtaining this loan may require membership approval so speak to your Becker attorney when applying for same.

In addition to helping businesses stay afloat, CARES will provide most individuals earning less than $75,000 (based on either one’s 2018 or 2019 tax return) a one-time cash payment of $1,200 with married couples each receiving a payment. Families would also receive $500 per child. People who receive Social Security benefits but do not file tax returns are still eligible for these payments. Individuals who are out of work will receive an additional $600 per week from the federal government on top of the base amount that the State of Florida provides.  CARES also creates a new, temporary Pandemic Unemployment Assistance program through the end of this year to help people who lose work as a direct result of COVID-19 and provides an additional 13 weeks of unemployment insurance. This monetary relief should help ease the financial uncertainties that many of your residents are facing.

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The Families First Coronavirus Response Act (“FFCRA”) was signed into law on March 18, 2020 and became effective on April 2, 2020. Among other items, this legislation provides paid sick leave and expanded paid leave under the Family and Medical Leave Act (FMLA).  This legislation:Covers all private employers with fewer than 500 employees. Including community association employers that have fewer than 500 employees.

  • Covers both full and part-time employees. Full time employees receive sick leave of up to 80 hours. Provides part-time employees with paid sick leave equal to the number of hours the employee works on average over a 2-week period.
  • Provides that employees may immediately take paid sick leave regardless of the length of employment.
  • Provides that employees may take expanded leave under the FMLA provided the employee must have worked for an employer for at least 30 calendar days.
  • Protects employees who are taking paid sick leave because they have been diagnosed with COVID-19, experiencing symptoms and seeking a diagnosis, experiencing symptoms substantially similar to those exhibited by COVID-19 or who are quarantined by providing them with a maximum of $511 per day or $5,110 in total.
  • Protects employees taking paid sick leave to care for a family member who is sick or quarantined or to care for a child whose school or place of care is closed by providing them with a maximum of $200 per day or $2,000 in total.
  • The FFCRA requires a community association to provide employees leave to care for a child who is not sick. FFCRA requires up to 12 weeks of paid leave to care for a child under 18 years of age if the child’s school or place of care has been closed. It does not matter whether the child is sick. The first 10 days of leave are unpaid, but the employee can use any accrued paid leave during that time. The remainder of the leave is paid at 2/3 of the employee’s regular rate of pay, not to exceed $200 per day or $10,000 in total.
  • Presently there is no relief for community associations with fewer than 50 employees. However the Secretary of Labor under FFCRA has the authority to exempt small businesses with fewer than 50 employees when compliance with FFCRA would jeopardize the viability of the business.
  • Employers who pay leave under FFCRA will be reimbursed through a payroll tax credit.
  • It is unlawful for an employer to retaliate against an employee who takes paid sick leave in accordance with FFCRA or who files a complaint under FFCRA. The penalties are similar to those provided for under the Fair Labor Standards Act which generally provides for lost wages, liquidated damages and attorneys’ fees and costs to a prevailing employee.

So many important aspects of our daily lives have changed since Governor DeSantis first declared a State of Emergency on March 9, 2020 and a national State of Emergency was declared on March 13, 2020.  The coming weeks will continue to present their challenges but we are here to help your board and management professionals.For our most up to date information please visit us at www.beckercovid19.com.

 

Donna DiMaggio Berger

DONNA DIMAGGIO BERGER

Contact: dberger@beckerlawyers.com

Donna DiMaggio Berger is a member of the College of Community Association Lawyers (CCAL), a prestigious national organization that acknowledges community association attorneys who have distinguished themselves through contributions to the evolution or practice of community association law and who have committed themselves to high standards of professional and ethical conduct in the practice of community association law. Ms. Berger is also one of only 129 attorneys statewide who is a Board Certified Specialist in Condominium and Planned Development Law.

 

 

 

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Vacation rentals has pitted local government officials against advertising platforms, such as Airbnb, in what has been one of the most intensely waged legislative battles.

Vacation rentals has pitted local government officials against advertising platforms, such as Airbnb, in what has been one of the most intensely waged legislative battles.

  • Posted: Mar 03, 2020
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The long-running dispute over vacation rentals has pitted local government officials against advertising platforms, such as Airbnb, in what has been one of the most intensely waged legislative battles.

The plan under consideration this year would require online platforms to collect and remit taxes on the properties that advertise on their sites. The platforms would have to ensure that only properly licensed rentals are advertised and provide the state with specific information about the rentals.

In exchange, regulation would be “preempted” to the state, largely preventing local governments from regulating vacation rentals. Local governments could only regulate the rentals in the same way as other properties in neighborhoods, a restriction that cities and counties strenuously oppose.

Florida law already bans local governments from passing ordinances to outlaw vacation rentals.

Sen. Wilton Simpson, who will take over as Senate president later this year, worked behind the scenes to forge a proposal that garnered support from the advertising platforms, the Florida Realtors and even the Florida Restaurant & Lodging Association, which in the past has strenuously resisted similar measures.

“Next year. That’s what they make next year for,” Simpson, R-Trilby, told The News Service of Florida when asked Monday evening about the measure’s prospects.

Airbnb Florida Policy Director Tom Martinelli said the platform remains hopeful that the issue “will be addressed legislatively to provide the vacation rental industry with uniformity and much-needed stability.”

“We remain hopeful this bill will move through the process to provide the much-needed relief to Florida’s vacation rental property owners and surrounding industry,” Martinelli said in a prepared statement.

 

Vacation rentals have sparked backlash from some homeowners, who complain about raucous parties, parking issues and a steady stream of strangers in neighborhoods. Many of the objections come from coastal regions of the state. Cities and counties also remain firmly opposed to the House and Senate bills.

And Gov. Ron DeSantis has indicated he was not keen on the measure, saying recently he was “leaning against” the legislation.

Diaz pointed to amendments offered by senators Monday that were “counter or interfering with some of the stuff that we’re trying to do.”

 

Tallahassee, FL – A controversial measure dealing with vacation rental properties appears doomed, as time runs out in the 2020 legislative session.

The Senate Rules Committee was scheduled to hear the bill (SB 1128) Monday, but bill sponsor Manny Diaz Jr., R-Hialeah, said the measure was postponed because he lacked the support necessary to get it out of the committee.

The Rules Committee is not scheduled to meet again before the session ends March 13, and even if it does, it appears unlikely that Diaz’s proposal will be on the agenda.

“This is an incredibly complex bill that obviously had been tried for years, and you can see that every stop we’ve made massive changes. We’re still not there with the changes that … we needed to have enough votes. So we’re still working to make sure that all senators are satisfied with that bill,” he said.

Sen. David Simmons, R-Altamonte Springs, sponsored amendments that would have effectively gutted the bill.

“So, it became incredibly convoluted. That’s why we’re holding on to it for now, to try to see if we can work that out,” Diaz said.

Diaz had planned to amend his bill to bring it in line with a House proposal (HB 1011) that is awaiting a House floor vote.

DeSantis told reporters Feb. 24 he had not made up his mind but expressed strong reservations about the effort.

“We have 22 million people almost. We are a very diverse state. For us to be micromanaging vacation rentals, I am not sure that is the right thing to do,” DeSantis said.

“These are things where you’ll have kind of a quiet neighborhood,” DeSantis continued. “Then you will have someone doing this, and there are parties going on and some of the residents get upset. My view would be, probably, that should be determined locally.”

Opponents of the measure had repeatedly complained about “party houses” that wreak havoc in single-family neighborhoods.

But Diaz said he wants to address those concerns.

“Right now, it’s just regroup, have conversations with the stakeholders (and) the senators involved and try to see where we’re at,” he said.

 

 

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A PROPOSED AMENDMENT TO THE LAW THAT HAS DANGER WRITTEN ALL OVER IT

A PROPOSED AMENDMENT TO THE LAW THAT HAS DANGER WRITTEN ALL OVER IT

  • Posted: Feb 03, 2020
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Until now, you couldn’t sue an association for a violation of these rights inasmuch as the action by the association did not constitute “state action.”  This new statute changes all that if it passes and will open a Pandora’s box and flood of litigation between associations and their owners.

By Eric Glazer, Esq. 

Published February 3, 2020

Two weeks ago, I wrote to you about House Bill 623 that is making its way through The Florida Legislature.  Another change to the law currently included in the bill is the following language:

718.112 Bylaws.—

(1) GENERALLY.—

(c) Any provision of the declaration, the association bylaws, or reasonable rules or regulations of the association which diminish or infringe upon any right protected under the Fourteenth Amendment to the United States Constitution or Art. I of the State Constitution is void and unenforceable without further action of the association. The association may record a notice in the public records of the county in which the condominium is located evidencing its intention to not enforce such provision. The failure of the association to record a notice in the public record may not be the basis for liability or evidence of discrimination or a discriminatory intention.

To simplify, the 14th Amendment made The Bill of Rights (The first ten amendments to the Constitution) applicable to the states.  So this law basically says no provision of your governing documents can infringe upon the rights you have under the Bill of Rights.  All of you know several of these rights such as the right to free speech, freedom of assembly, and freedom of religion.

There is plenty of law out there that says when you move into an association, you may give up some of the rights you may ordinarily have in your private home. You do this by agreeing to be bound by the governing documents.   For example, courts have upheld the rights of Florida associations to prevent the use of the common elements for religious purposes, allowed associations to impose reasonable restrictions on speech through time limitations at meetings, impose restrictions on placement of political signs on the property or even placement of religious symbols in excess of certain sizes on your windows and doors.

The adoption of this proposed amendment by The Florida Legislature may throw all of these restrictions into doubt, including another one I haven’t mentioned yet.  The Second Amendment is the right to bear arms.  Inasmuch as Florida law allows associations to prohibit alcohol use on the common elements and prohibit religious ceremonies on the common elements I always opined that the association had the right to ban weapons on the common elements via a rule. If this proposed amendment passes, no way would an association be allowed to ban guns from the common areas.

I have serious concerns that if this amendment passes, associations will potentially be embroiled in case after case, where the association attempted to impose all of the reasonable restrictions mentioned above, and unit owners taking the position that the association is prohibited from doing so because it violates their constitutional rights.  Until now, you couldn’t sue an association for a violation of these rights inasmuch as the action by the association did not constitute “state action.”  This new statute changes all that if it passes and will open a Pandora’s box and flood of litigation between associations and their owners.

If you are a believer that associations are notorious for not providing their owners with rights guaranteed by the U.S. Constitution, this new proposed law may not bother you.  If on the other hand you believe that the association should still be able to impose reasonable restrictions in order for all of us to live in harmony with each other, this new law should bother you.  A LOT.

 

 

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The Internet of things

The Internet of things

The telecommunications industry says the upgrades are needed by 2020 to meet the demand for faster internet speeds, smart cities, driverless vehicles, instantaneous 3D downloads, the “Internet of things” where machines talk to machines, and more.

The battle between infrastructure needed for fast digital service and property rights may soon come to communities across Palm Beach County. Right now, it’s playing out in Tallahassee courtesy of legislation before lawmakers.

“It’s a ticket for multi-billion dollar wireless communication companies to come into a city and do as they please in city right of ways,” said Riviera Beach Councilwoman Dawn Pardo.

The brewing fight is over technological advances. First there was 1G wireless technology, for “first generation,” and as telecommunications technology evolved, 2G, 3G, 4G and 4G LTE came to be. Now 5G, a fifth generation network technology allowing greater connectivity at higher speeds for many more devices, is on its way.

To place the infrastructure needed for 5G service, a proposal pending in the Florida Legislature would limit state and local control of public rights-of-way where the 5G equipment is being installed.

 

SFPMA feels that with the proposal in the Florida Legislature with some changes is what we need to advance this to all of our Florida communities, this upgrade is for reliability “If you are stranded in an heavy traffic area or one that has many customers using services at one time it slows down and this brings problems” Can you get through in an emergency? We have members right now that offer Building Owners the ability to place towers, on rooftops and other locations with need to advance the networks. Many of our building members can make money each month by the placement of these on the properties and in the communities they own and manage. 

Senate Bill 596 sponsored by Sen. Travis Hutson, R-Palm Coast, and House Bill 687, sponsored by Rep. Mike La Rosa, R-St. Cloud, would create the Advanced Wireless Infrastructure Deployment Act and prohibit the Florida Department of Transportation and local governmental entities from prohibiting, regulating or charging for collocation of small wireless facilities in public rights-of-way.

Municipalities say the bill is one-sided, would take away their ability to control where 5G equipment is installed and totally favors telecommunications giants such as AT &T, Verizon and Sprint. The companies want the right to install their equipment on utility poles, light posts, signs and traffic arms in rights-of-way.

Pardo was one of about a dozen officials from cities and counties across Florida, including Miami, Fort Lauderdale and St. Petersburg, who spoke against the bill before the Senate Committee on Communications, Energy and Public Utilities in Tallahassee on March 7.

Pardo told the committee the bill would eliminate residents having a say in the location of 5G facilities.

Currently, Riviera Beach requires “stealth designs” that are unobtrusive, and has other rules as well. The city doesn’t allow the equipment within residential communities.

“We have a couple of these wireless companies proposing to put towers in residential communities without any input from the public. This is unacceptable. This bill allows companies to put as many towers as they want,” Pardo said.

The proliferation of poles and equipment on rights-of-way would jeopardize public safety, entice kids to climb up the poles and create more debris when a hurricane hits, Pardo said.

Riviera Beach has spent a “couple million dollars” to bury utility lines, Pardo said, adding, “Then the next thing you know, we have these 100-foot poles in the middle of the sidewalk.”

Both bills have passed their first round in the Senate Committee on Communications, Energy and Public Utilities and the House Subcommittee on Energy & Utilities.

While the bills deal only with “small cells,” the suitcase-size to small refrigerator-size building blocks of the 5G system, some companies are also submitting applications for poles as high as 120 feet.

The telecommunications industry says the upgrades are needed by 2020 to meet the demand for faster internet speeds, smart cities, driverless vehicles, instantaneous 3D downloads, the “Internet of things” where machines talk to machines, and more.

Houston-based Crown Castle, the nation’s largest provider of wireless infrastructure, sought to install 50 to 60 poles all over Riviera Beach, but in September 2016 the city passed an ordinance regulating them. The equipment boxes must be grouped together in a single location and spaced a minimum of 2,000 feet from each other unless technical documentation is provided by the applicant and approved by the city management. If more than six poles are to be located within one linear mile of a city block, the manager must notify the council.

Crown Castle installed four poles prior to the regulations. Mobility had planned to install numerous 120-foot poles, but Riviera Beach’s ordinance does not allow the poles to be over 35 feet. That’s got municipal leaders worried.

Eric Poole, deputy director of public policy at the Florida Counties Association, spoke about SB 596 before the committee. The committee passed the bill on preliminary reading.

“This bill is a one-way street. It says the telecommunications industry can come into any county and city and require us to give them a permit to co-locate one of their small cell packages on any of our utility poles, light posts, signs or traffic arm signals. We can’t tell them no,” Poole said.

Poole said he first became aware of the 5G issue about 10 months ago when a wireless infrastructure provider submitted an application in a Florida county he did not mention by name, and said it had the right to use the right-of-way. In the past, such installations were typically done on private property, not on public rights-of-way.

The proposal states that if the local government doesn’t approve or deny the telecommunication company’s application within 60 days, approval is automatic. The maximum fee the companies can be charged for use of each right-of-way is $15.

Some local governments have declared moratoriums while they work with the industry, Poole said. He said his organization doesn’t want to stop smart schools, economic development and other advancements, but that the industry needs to respect home rule authority.

Advocates for the bill included representatives of AT&T, Sprint, Verizon, T-Mobile and other companies, as well as their trade groups.

Bethanne Cooley, legislative affairs director of CTIA, the trade association for the wireless communications industry, said networks need to be updated today to be ready for the next generation of wireless networks.

The fifth generation, 5G, will connect 100 times as many devices and be up to 100 times faster. It could create up to 3 million jobs nationwide over the next seven years, Cooley said.

A January report by the Florida Association of County Attorneys Cell Tower Right-of-Way Task Force states that numerous counties and cities in Florida have been confronted with applications from private companies wanting to place cellular telecommunications towers and small cells in the public right-of-way.

The companies are seeking to classify these cellular towers as tall as 120 feet as “utility” poles, but they are not, the report states.

The Telecommunications Act of 1996 and the Florida Statutes do not support a right of telecommunication firms to force local government to allow placement of cellular communication facilities in the local government’s own right-of-way, the report concludes.

Reposted by: SFPMA for the advancement of our communities. original published by; The Palm Beach Post (West Palm Beach, Fla.) Distributed by Tribune Content Agency, LLC.

 

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House Bill 841 containing this year’s community association legislation.

House Bill 841 containing this year’s community association legislation.

KAYE BENDER REMBAUM’S 2018 LEGISLATIVE GUIDE – HOUSE BILL 841 AFFECTING COMMUNITY ASSOCIATION IS SIGNED INTO LAW

House Bill 841 containing this year’s community association legislation (“HB 841” or “Bill”) has made its way through the 2018 Florida legislative session and was signed into law by Governor Scott on March 23rd. As the Bill is now signed into law, it becomes effective on July 1, 2018. The following is a digest explanation of these newest laws to affect Florida’s community associations:

Condominium Official Record-keeping: Certain official records must be permanently maintained from the inception of the association, including the following:

(i) a copy of the plans, permits, warranties, and other items provided by the developer;
(ii) a copy of the recorded declaration of condominium and all amendments thereto
(iii) a copy of the recorded bylaws and all amendments thereto;
(iv) a certified copy of the articles of incorporation and all amendments thereto;
(v) a copy of the current rules; and
(vi) all meeting minutes.

All other official records of the association must be maintained within the state for at least seven years, unless otherwise provided by general law. Notwithstanding, all election records, including electronic election records, must only be maintained for one year from the election.

 

Kaye Bender Rembaum
9121 N Military Trail #200,
Palm Beach Gardens, FL 33410

 

 

Condominium Website: As a result of the 2017 legislative session, the website posting requirement applies to condominiums containing 150 or more non-timeshare units. The deadline to post digital copies of the governing documents, association contracts, budget, financial report, and other required documents on the association’s website is extended to January 1, 2019. Of the documents to be posted to the website, a list of bids received by the association within the past year for contracts entered into by the association and any monthly income and expense statement must also be posted. Notwithstanding this requirement, the failure to post these documents on the website does not, in and of itself, invalidate any action or decision of the association. Additionally, in complying with the posting requirement, there is no liability for disclosing information that is protected or restricted unless such disclosure was made with a knowing or intentional disregard of the protected or restricted nature of such information.

 

Condominium Financial Reporting: In the event an association fails to comply with an order by the Division of Florida Condominiums, Timeshares, and Mobile Homes to provide an owner with a copy of the financial report within a specified amount of days, then the association is prohibited from waiving the financial reporting requirement for the fiscal year in which the owner’s initial request for a copy was made and for the following fiscal year, too.

 

Condominium/Cooperative Board Meeting Notices: Notice of any board meeting in which regular or special assessments against unit owners are to be considered must specifically state that assessments will be considered and provide the estimated cost and description of the purposes for such assessments.

 

Condominium/Cooperative Meeting Notices: The association may adopt a rule for conspicuously posting meeting notices and agendas on the association’s website for at least the minimum period of time for which a notice of a meeting is also required to be physically posted on the condominium property. This rule must include a requirement that the association send an electronic notice in the same manner as a notice for a meeting of the members, including a hyperlink to the website where the notice is posted. (As yet, it is not patently clear whether this is in place of the existing “posting in a conspicuous place” requirement or in lieu of it. The safer course of action is to do both.)

 

Condominium Director Term: A director can serve a term longer than one year if permitted by the bylaws or articles of incorporation. However, a director cannot serve more than eight consecutive years, unless approved by two-thirds of all votes cast in the election or unless there are not enough eligible candidates to fill vacancies on the board. This part of the legislation replaces and fixes last year’s ridiculous new law that a director could not serve more than four consecutive two-year terms. (It appears that based on this year’s legislative changes, directors can serve any length of term so long as authorized by the articles or bylaws. At present, directors can only serve one or two year terms depending on the provisions of the articles and bylaws. Also, staggered terms remain permitted.)

 

Condominium/Cooperative Electronic Notice: A unit owner who consents to receiving notices by electronic transmission is solely responsible for removing or bypassing filters that block receipt of mass emails sent to members on behalf of the association in the course of giving electronic notices.

 

Condominium Director Recall: A recall is only effective if it is facially valid. (Of course, as what the term of art “facially valid” is intended to mean is left out of the legislation.) In any event, if the recall is determined to be facially invalid by the board, then the unit owner representative of the recall effort may file a petition challenging the board’s determination on facial validity. Similarly, a recalled board member may file a petition challenging the facial validity of the recall effort. If the arbitrator determines that the recall was invalid, the petitioning board member is immediately reinstated and the recall is null and void. In some instances, the arbitrator may award prevailing party attorney fees.

 

Condominium Material Alterations: In situations where the declaration as amended does not specify the procedure for approving material alterations or substantial additions to the common elements or association property, the already statutorily required approval of seventy-five percent of the total voting interests of the association must now be obtained before the material alterations or substantial additions to the common elements or association property are commenced. (Clearly then, if the declaration is silent as to the procedure for material alterations or substantial additions to common elements or association property, this new legislation implies that a curative vote of the members to approve the changes is a thing of the past. It does not make sense to force the association to restore the property to its prior condition where the members might vote to approve the change. Hopefully, this will be fixed in next year’s legislative proposals.)

 

Condominium Electric Vehicles: A declaration of condominium or restrictive covenant may not prohibit or be enforced so as to prohibit any unit owner from installing an electric vehicle charging station within the boundaries of the unit owner’s limited common element parking area. Moreover, the board may not prohibit a unit owner from installing an electric vehicle charging station for an electric vehicle within the boundaries of his or her limited common element parking area. The unit owner is entirely responsible for the charging station, including its installation, maintenance, utilities charges (which must be separately metered), insurance, and removal if no longer needed. The association may impose certain requirements upon the installation and operation of the charging station, including, for example, that the unit owner comply with all safety requirements and building codes, that the unit owner comply with reasonable architectural standards adopted by the association governing charging stations, and that the unit owner use the services of a licensed and registered electrical contractor or engineer knowledgeable in charging stations. Labor performed on or materials furnished for the installation of a charging station may not be the basis for filing a construction lien against the association, but such a lien may be filed against the unit owner.

 

Condominium Director Conflicts of Interest: The process allowing a director to enter into a contract with the director’s association has become better organized. Disclosure requirements that were set out in section 718.3026(3), Florida Statutes were deleted from that location and relocated to section 718.3027, Florida Statutes. In brief, directors and officers of non-timeshare condominiums must disclose to the board any activity that could be reasonably considered a conflict of interest. A rebuttable presumption of such a conflict exists if:

i) directors or officers of the association (including their relatives) enter into a contract for goods or services with the association;

ii) directors or officers of the association (including their relatives) holds an interest in a corporation. Limited liability corporation, partnership or other business entity that conducts business with the association.

In the event of such a conflict, then the proposed activity and all relevant contracts must be attached to the meeting agenda and the requirements of section 617.0832, Florida Statutes must be adhered to, as well. The relevant provisions of section 617.0832, Florida Statutes follow:

“No contract or other transaction between a corporation and one or more of its directors or any other corporation, firm, association, or entity in which one or more of its directors are directors or officers or are financially interested shall be either void or voidable because of such relationship or interest, because such director or directors are present at the meeting of the board of directors or a committee thereof which authorizes, approves, or ratifies such contract or transaction, or because his or her or their votes are counted for such purpose, if:

a) The fact of such relationship or interest is disclosed or known to the board of directors or committee which authorizes, approves, or ratifies the contract or transaction by a vote or consent sufficient for the purpose without counting the votes or consents of such interested directors;

b) The fact of such relationship or interest is disclosed or known to the members entitled to vote on such contract or transaction, if any, and they authorize, approve, or ratify it by vote or written consent; or

c) The contract or transaction is fair and reasonable as to the corporation at the time it is authorized by the board, a committee, or the members.”

In addition, section 718.3027, Florida Statutes, provides that the disclosures required by this section must be set out in the meeting minutes, and the contract must be approved by two-thirds of all of the directors present (excluding the conflicted director). At the next membership meeting, the existence of the contract must be disclosed to the members and then may be canceled by a majority vote of the members present. If the contract is canceled, the association is only liable for the reasonable value of the goods and services provided up to the time of cancellation and is not liable for any termination fee, liquidated damages, or other form of penalty for such cancellation. Finally, in the event of a failure to disclose a conflict or potential conflict, the contract is voidable and terminates upon the filing of a written notice terminating the contract which contains at least 20 percent of the voting interests of the association. (Note that section 718.112(2)(p) Florida Statutes, pertaining to service provider contracts still provides that “an association, which is not a timeshare condominium association, may not employ or contract with any service provider that is owned or operated by a board member or with any person who has a financial relationship with a board member or officer, or a relative within the third degree of consanguinity by blood or marriage of a board member or officer. This paragraph does not apply to a service provider in which a board member or officer, or a relative within the third degree of consanguinity by blood or marriage of a board member or officer, owns less than 1 percent of the equity shares.”)

 

Condominium/Cooperative Grievance Committee: The grievance committee appointed by the board to conduct hearings for fines and use right suspensions for violations of the governing documents must be comprised of at least three members who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee. (The restriction against not allowing someone living with the director from serving on the committee was removed.) The fine or suspension can only be imposed if approved by a majority of the committee. If a fine is approved, the fine payment is due five days after the date of the committee meeting at which the fine is approved. (This seems illogical in that the offending member may not have received the required written notice of the confirmation of the fine from the association.) The association must provide written notice of the approved fine or suspension by mail or hand delivery.

 

Cooperative Official Records: The official records must be made available to a unit owner within ten working days after receipt of written request by the board or its designee.

 

Cooperative Director/Officer Eligibility: In a residential cooperative association of more than ten units, co-owners of a unit may not serve as members of the board at the same time unless the co-owners own more than one unit or unless there are not enough eligible candidates to fill the vacancies on the board at the time of the vacancy.

 

Cooperative Director/Officer Financial Delinquency: A director or officer more than 90 days delinquent in the payment of any monetary obligation due to the association shall be deemed to have abandoned the office, creating a vacancy in the office to be filled according to law.

 

Cooperative Bulk Communication Contracts: Cooperatives are now lawfully permitted to enter into bulk communication contracts which can include internet services and such expenses are deemed common expenses of the cooperative.

 

HOA/Cooperative Board Email Use: Members of the board may use email as a means of communication but may not cast a vote on an association matter via email.

 

HOA Fines: If a fine levied by the board is approved by the grievance committee, the fine payment is due five days after the date of the committee meeting at which the fine is approved. (This seems illogical in that the offending member may not have received the required notice of the confirmation of the fine from the association.)

 

HOA Amendments: A proposal to amend the governing documents must contain the full text of the provision to be amended with new language underlined and deleted language stricken. However, if the proposed change is so extensive that underlining and striking through language would hinder, rather than assist, the understanding of the proposed amendment, the following notation must be inserted immediately preceding the proposed amendment: “Substantial rewording. See governing documents for current text.” An immaterial error or omission in the amendment process does not invalidate an otherwise properly adopted amendment. (In other words, HOA proposed amendments must be presented in the same manner as proposed condominium amendments have been required to do for years and years.)

 

HOA Election by Acclamation: If an election is not required because there are either an equal number or fewer qualified candidates than vacancies exist, and if nominations from the floor are not required and write-in nominations are not permitted, then such qualified candidates shall commence service on the board of directors, regardless of whether a quorum is attained at the annual meeting. (This is a major change!)

 

HOA Application of Payments: The application of assessment payments received by the association is applicable regardless of any purported accord and satisfaction or any restrictive endorsement, designation, or instruction placed on or accompanying a payment

http://rembaumsassociationroundup.com/2018/03/26/kaye-bender-rembaums-2018-legislative-guide-house-bill-841-affecting-community-association-is-signed-into-law/

 

 

 

 

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