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“Why Are These Plants Behind My House?” by Allstate Resource Management

“Why Are These Plants Behind My House?” by Allstate Resource Management

  • Posted: Mar 01, 2021
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“Why Are These Plants Behind My House?”

by Allstate Resource Management

Many homeowners in South Florida have properties that are adjacent to mitigation areas but very few have an understanding as to what they are or why they are there.  This article will answer some of these questions and give you a better understanding about the role mitigation sites play in your community.

Homeowners have all sorts of names for the planted areas by their homes.  Some call them preserves, some call them swamps, some call them natural areas but they all share a common origin and purpose.  Whether they are full of trees or stretches of plants along a lake shoreline, they are all what are known as mitigation.  Mitigation is an attempt to lessen or alleviate the environmental impact of development and construction in our area.  When a developer plans to build a community the location must first be surveyed to determine if important natural resources and sensitive areas will be disturbed due to the project.  Before any construction can begin, the developer must submit a plan to create and maintain areas that will replace what is lost when the development is built.  Once the plan is approved, a permit is issued for the mitigation and the project can begin.  Without the mitigation, your neighborhood could not even exist.  When the builder turns the property over to a homeowners association, the association then assumes the responsibility for the mitigation and its care.

There are three basic kinds of mitigation areas: wetland preserves, upland preserves and littoral zones.  Wetland preserves are lower lying areas that are partly to completely flooded most of the year and are largely comprised of aquatic plants and grasses, and may have tree islands or deep water pools.  Upland preserves are wooded areas that sit at higher elevations and tend to have drier soils and are usually comprised of more trees and shrubs.  Littoral zones are submersed shelves that run around the perimeter of lakes and are planted with a variety of plants that can grow in flooded conditions.

Quarterly inspections and status reports are required by the agency that issued the mitigation permit for your community.  These are to ensure that the site lives up to its required environmental obligation and that it complies with agency standards.  Regular maintenance visits, by trained and licensed personnel, are necessary to keep mitigation areas in compliance.  In order to be in compliance the areas must be covered by the proper percentage of beneficial, native plants and be within the acceptable limit of invasive, exotic plants.

Mitigation sites are designed to replace a natural ecosystem and are not meant to be perfectly manicured landscapes.  Homeowners should never take it upon themselves to remove plants, trim or cut plants or add plants to mitigation areas.  Remember, these areas are permitted and unapproved alterations could result in complications or fines, just like any other permit you have when you do work on your house.  Homeowners should also be sure that their landscapers do not dump debris such as palm fronds, hedge trimmings and grass clippings into the mitigation by their homes.  All mitigation is monitored for compliance.  When the standards set by the oversight agency are not met, the entity responsible for the upkeep of the site may be financially liable to bring the site back into compliance.

Many homeowners don’t realize the benefits of these re-created natural areas.  They see them as a burden with no redeeming qualities but there are several that are commonly overlooked.  These areas provide habitat to several native species, some of which are threatened or even endangered.  In addition to habitat for animals mitigation provides a pathway to replenish the aquifers that supply the drinking water here in South Florida.  As more and more development occurs, we are essentially “capping” our water supply’s recharge mechanism with concrete and asphalt.  Increased population creates increased demand for water.  At the same time our system’s ability to provide the needed water is being reduced.  Wetlands and preserves act like a sponge to capture water that would normally be lost to storm drains and funnels it into our depleted aquifers.  This sponge affect also aids in flood prevention.  Wetlands can hold a considerable amount of storm flow and alleviate your community’s storm water drainage system.  Littoral plantings around your lake also help absorb nutrient runoff.  Florida lawns don’t get green by themselves.  We use a lot of fertilizer and when the rains come and the grounds get soaked, some of that fertilizer ends up in our lakes.  This then feeds algae in the lakes and creates those unpleasant mats of floating, green algae around the water body.  The bands of wetland plants around the shoreline act as a buffer and absorb some of the nutrient runoff as it enters the water.

Our staff at Allstate realizes that your mitigation maintenance is an important responsibility.  We hope that this has shed some light on the questions you may have.  One of our goals in our pledge to service to you is educating the homeowners and helping everyone understand the value of the aquatic resources within your community.  If we can provide any further guidance or assistance please feel free to call our office.

 

By: Stephen Montgomery

Allstate Resource Management

6900 SW 21st Court, Building #9

Davie, Florida 33317

Phone: (954) 382-9766

Fax: (954) 382-9770

 

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Community Update: February Wrap Up – Florida Condo & HOA Law Blog

Community Update: February Wrap Up – Florida Condo & HOA Law Blog

  • Posted: Mar 01, 2021
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Spring is just around the corner and sprucing up is often top of mind. Whether that means improving yards, documents, or relationships, this edition of Becker’s Community Update offers practical guidance on how to move forward. Check out the hot topics below, and don’t forget to connect with us on Facebook to get real time updates on these issues and more!

by Becker / Florida Condo & HOA Law Blog

While Mother Nature may be hard to harness, community associations are often tasked with doing just that to protect both residents and property. In Responsibility for Tree Branches and Roots Elizabeth Lanham-Patrie explores how the law decides who needs to tackle this chore.

In the second part of our two part series Amending Governing Documents, Jay Roberts outlines best practices for getting proposed changes approved by membership.

Maritrini Soto Garcia discusses presidential power in Does a Community Association Board President Have Executive Action Authority or Unilateral Powers?, and reminds everyone that the work of a community association is, ultimately, a group effort.

Assessments are not the most popular feature of a community association, but they are a vital resource in maintaining the amenities and ambiance to which the community has grown accustomed. In THIS CASE: Abbey Park Homeowners Association, Inc. v. Bowen, Rob Caves reviews how the Florida court decided the seminal case regarding an owner’s right to withhold payment of an assessment.

 

If you have new members on your board or a new manager for your community and want them to be part of our Community Update, have them subscribe here:

 

 

Amending Governing Documents Part II – How?

By: Jay Roberts, Esq.

In Part I of this two-part series, we discussed the importance of amending governing documents. Part II discusses tips on how a board of directors can put itself in the best position to have the proposed amendments approved by the membership.

START EARLY:

Work with the association’s counsel to craft the language appropriate for the amendments well before you plan to present it to the membership formally.

Click here to read more!

Does a Community Association Board President Have Executive Action Authority or Unilateral Powers?

By: Maritrini Soto Garcia, Esq.

Community associations are not administered by a single director or officer of the board, instead, the affairs of such associations are administered by its board. The articles of incorporation and/or bylaws of an association most often specify the required minimum number of board members. In the condominium context, the Florida Condominium Act provides that in the absence of such specification, the board of administration must be composed of five members (or three members in condominiums with five or fewer units).

Click here to read more!

Abbey Park Homeowners Association, Inc. v. Bowen,

508 So.2d 554 (Fla. 4th DCA 1987)

By: Rob Caves, Esq.

Assessments paid by owners are the lifeblood of any community association and efforts to collect assessments are the most consequential and common legal proceedings any association engages in. Typically, there are few valid defenses an owner can raise to challenge the collection of properly adopted assessments. One common defense that is attempted is that the association is failing to properly maintain the common elements of a condominium or the common areas of a homeowners’ association.

The seminal case on the issue of whether owners can withhold the payment of assessments due to the association’s failure to properly maintain the common elements is Abbey Park Homeowners Association, Inc. v. Bowen, 508 So.2d 554 (Fla. 4th DCA 1987). In the case, the appellate court held that the failure to maintain the common elements is not an affirmative defense to the association’s action to foreclose on the unit for the failure to pay assessments. Accordingly, a claim by an owner that the association is improperly maintaining the condominium property would not be a valid defense to the association’s action to collect unpaid assessments or enforce the association’s assessment lien against a unit.

However, there are subsequent cases that hold that while such claims are not affirmative defenses to a foreclosure action by an association, they could constitute counterclaims and entitle the owner to a “set-off” if they were to prove that the association failed to properly maintain the condominium property and such failure resulted in damage to the unit owner or their property. See Qualcom Corp. v. Global Commerce Center Association, Inc., 59 So. 3d 347 (Fla. 4th DCA 2011) (holding that the owner was able to argue at trial that its damages from a roof leak, if proven, could be a “set-off” against the outstanding assessments). However, the facts which would entitle an owner to a set-off would be very specific and would not apply to an owner’s general allegation that the common elements, or common areas, were not being maintained, as was alleged in Abbey Park.

Accordingly, pursuant to the legal principles outlined in the Abbey Park case, the fact that an owner alleges that the association is not properly maintaining the common property, or operating the association, would not be a defense against the association’s action to collect properly levied assessments.

 

 

CALLING ALL BOARD MEMBERS AND COMMUNITY MANAGERS

As a service to the community and industry, we are pleased to offer some of our most popular classes online! While our in-person classes remain suspended until further notice due to COVID-19, we are thrilled to bring you the following classes to participate in from the comfort of your own home.

HOA/Condo Board Member Certification

VIEW ALL CLASSES

 

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GOVERNOR DESANTIS EXTENDS STATE OF EMERGENCY FOR ANOTHER 60 DAYS ON FEBRUARY 26TH, 2021

GOVERNOR DESANTIS EXTENDS STATE OF EMERGENCY FOR ANOTHER 60 DAYS ON FEBRUARY 26TH, 2021

  • Posted: Mar 01, 2021
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As a result of this Order, Emergency Powers of the Boards of Directors for community associations remain in effect for another 60 days.

Read the Entire Emergency Order Here

 

 

 
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HOW DO YOU PROTECT YOUR RIGHT TO VOTE IF YOU LIVE OUT OF THE STATE OR COUNTRY? By Eric Glazer, Esq.

HOW DO YOU PROTECT YOUR RIGHT TO VOTE IF YOU LIVE OUT OF THE STATE OR COUNTRY? By Eric Glazer, Esq.

  • Posted: Mar 01, 2021
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LOTS OF COMPLAINTS THIS YEAR ABOUT PEOPLE NOT GETTING THE CHANCE TO VOTE BECAUSE THE MAIL IS SLOW. HOW DO YOU PROTECT YOUR RIGHT TO VOTE IF YOU LIVE OUT OF THE STATE OR COUNTRY?

By Eric Glazer, Esq.

This year I am hearing the following complaint more than ever before: I live out of the state, or out of the country and I never received a ballot to vote in the election.

A little over a year ago I was involved in a case where many owners who lived in Finland did not get their ballots timely.  Instead of having their vote not count, someone who lived in the condominium e-mailed them the ballot.  These owners then took that ballot, placed it in a ballot envelope, placed that ballot envelope in another envelope and signed the exterior, and mailed it back to the association usually by overnight mail.  Some owners didn’t bother to use the interior ballot envelope.

The association didn’t want to count these votes.  The association also didn’t want to count the votes of owners who had their ballot envelopes dropped off by a neighbor, claiming that this was voting by proxy.

Read the attached opinion to find out how the arbitrator ruled.  It makes for interesting reading.  The bottom line…….if you’re out of town…..have the ballot e-mailed to you.

To read the case, click here.

 

About HOA & Condo Blog

Eric Glazer graduated from the University of Miami School of Law in 1992 after receiving a B.A. from NYU. He has practiced community association law for more than 2

decades and is the owner of Glazer and Sachs, P.A. a seven attorney law firm with offices in Fort Lauderdale and Orlando and satellite offices in Naples, Fort Myers and Tampa.

Since 2009, Eric has been the host of Condo Craze and HOAs, a weekly one hour radio show that airs at noon each Sunday on 850 WFTL.

See: www.condocrazeandhoas.com

He is the first attorney in the State of Florida that designed a course that certifies condominium residents as eligible to serve on a condominium Board of Directors and has now certified more than 10,000 Floridians all across the state. He is certified as a Circuit Court Mediator by The Florida Supreme Court and has mediated dozens of disputes between associations and unit owners. Eric also devotes significant time to advancing legislation in the best interest of Florida community association members.

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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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NEW Video Section: CONDO AND HOA VIDEO’S & COURSES on sfpma

NEW Video Section: CONDO AND HOA VIDEO’S & COURSES on sfpma

  • Posted: Feb 25, 2021
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CONDO AND HOA VIDEO’S & COURSES

Educational Videos & Webinar Presentations

Videos and Webinar presentations offered to Clients that work and live in Condo, HOA’s and the Management Industry. Learn at your own pace, some of the presentations provide course certificates of completion while others offer you the ability to learn valuable lessons on the many questions you may have for your Condo and HOA.  Below you can find videos on; Legal and Legislative presentations, Q & A for Condo and HOA, Collections, Accounting and Taxes, Education and Licensing, Become a CAM and many more….

 

Educational Providers: Florida Member Companies with The State of Florida Property Management Association.

In our efforts to bring educational courses to our industry in a safe way, Our Members provide many courses online through Zoom and Video presentations. Take advantage of these online Courses many are approved by the State of Florida where after watching, joining and taking part in will give you credits and certifications for the Courses. These lively, interactive and informational Video courses are approved for board member certification and property manager continuing education credits. (ECU Credits) some are held in a Video setting while others are online through Zoom and other platforms. SFPMA is happy to bring to you these Educational Resources for you to take part in.

View and Learn through Videos & Courses offered to Condo & HOA Board Members throughout the State of Florida. 

View our YouTube Channel and keep up to date with Members, Courses, and Learn through the Great Videos for our industry!

 

 

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DBPR reminds you that hurricane season is just around the corner. free hurricane guide

DBPR reminds you that hurricane season is just around the corner. free hurricane guide

  • Posted: Feb 25, 2021
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DBPR reminds you that hurricane season is just around the corner. We have produced a free hurricane guide

preparedness before a storm hits and offers tips and resources for what to do after a storm has made landfall.

Download here: http://bit.ly/2Jcfwp0

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Keeping Politics Out of Your Community Association by Becker

Keeping Politics Out of Your Community Association by Becker

  • Posted: Feb 22, 2021
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Keeping Politics Out of Your Community Association

by Becker / Donna DiMaggio Berger | 09.15.2020

 

Not surprisingly, the chatter about whether or not political signs should be permitted in private residential communities has increased as we draw closer to the elections in November.

Let’s first discuss whether or not an owner in a Florida HOA has the “right” to install signs. The short answer is “no” with one exception. FL homeowners’ associations can prohibit all types of signs other than one security sign located ten or fewer feet from the entrance to the home. All other signs including “For Sale” signs, signs installed by vendors doing work at a home, seasonal and congratulatory greetings and political signage may be prohibited IF the board determines that doing so is in the best interests of the community. Naturally, if the members disagree with their board’s decisions they may decide not to re-elect that board in the future.

Some owner signs enhance a community’s charm including seasonal greetings, and in the time of Covid, the congratulatory yard signs letting neighbors know of a child’s accomplishments when a traditional party could not take place. However, other signs cause concern. Many boards dislike the posting of “For Sale” signs as an abundance of those signs may send the wrong signal to both residents and potential purchasers.

And, it goes without saying that political signs these days are capable of igniting deep fractions inside residential communities. One school of thought is that some people’s sensitivities should not dictate others’ ability to promote their political candidate of choice.

The other school of thought associated with political signs is that they do not belong inside a private residential community where they can do more harm than good. The advocates for keeping politics out of communities believe that one’s political ideology is more productively expressed through monetary donations, volunteering for a campaign and/or waging war on social media sites to one’s heart’s content.

Some owners maintain that their constitutional rights are being trampled if their association denies them the right to install a political sign or political flag. In fact, you need a state actor to be the entity violating one’s First Amendment rights in order to mount a sound constitutional argument. In Florida, condos and HOAs have not been found to be state actors so prohibiting political signs and political flags is possible either through a recorded covenant or a board rule if the board has rule-making authority under the governing documents. In the case of Quail Creek Prop. Owners Association, Inc. v. Hunter, 538 So. 2d 1288, 1289 (Fla. 2nd DCA 1989), the Second District Court of Appeal found that an association’s sign restriction was not unconstitutional as “neither the recording of the protective covenant in the public records, nor the possible enforcement of the covenant in the courts of the state, constitutes sufficient “state action” to render the parties’ purely private contracts relating to the ownership of real property unconstitutional.”

Some boards choose to regulate the number and size of political signs and political flags as well as how long they can remain in place. However, when it comes to wording on those signs and what may or may not be considered offensive that requires a more in-depth analysis which some boards understandably wish to avoid. After much debate, many communities simply decide that political signs are best left outside their communities.

The place you call home should be a respite from the world and respites often don’t involve contentious political signage next door.

 

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Legal Morsel | Court Concludes That Mistakes on a Claim of Lien Does Not Invalidate the Claim by BY ROBERT KAYE, ESQ., B.C.S

Legal Morsel | Court Concludes That Mistakes on a Claim of Lien Does Not Invalidate the Claim by BY ROBERT KAYE, ESQ., B.C.S

  • Posted: Feb 22, 2021
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Legal Morsel | Court Concludes That Mistakes on a Claim of Lien Does Not Invalidate the Claim

by BY ROBERT KAYE, ESQ., B.C.S

The Florida Fourth District Court of Appeal recently provided a ruling regarding the ability of a homeowner’s association to successfully complete a foreclosure for unpaid assessments when there was an error in the amount indicated as being owed on the claim of lien.  In the case of Pash v. Mahogany Way Homeowners Association, Inc., Case No. 4D19-3367, January 27, 2021, the Appellate Court was faced with the challenge of a lower court ruling in favor of the homeowner’s association in which the homeowner, Mr. Pash, had claimed that the amount indicated on the claim of lien was overstated from what was owed.  The record also reflected that the homeowner’s association admitted that it made a mistake in its calculation of the assessments on the lien but corrected the amount when it filed the foreclosure case.  It was not disputed that some assessments were delinquent when the foreclosure case began.

In a split decision, a majority of the Court focused on the requirements of Section 720.3085(1)(a) of Florida Statutes, as well as the provisions of the Declaration of Covenants for the Community.  The Statute provides the following:

To be valid, a claim of lien must state the description of the parcel, the name of the record owner, the name and address of the association, the assessment amount due, and the due date.  The claim of lien secures all unpaid assessments that are due and that may accrue subsequent to the recording of the claim of lien and before entry of a certificate of title, as well as interest, late charges, and reasonable costs and attorney fees incurred by the association incident to the collection process.  The person making payment is entitled to a satisfaction of the lien upon payment in full.

While the case was reversed for other reasons, the majority of the Court stated that “Nothing in section 720.3085(1)(a) suggests that the claim [of lien] must be free of error for it to serve as an otherwise valid claim of lien.”  The Court also concluded that the statute, as written, does not provide that an error in the amount stated in the claim of lien invalidates an otherwise valid claim by an association.  Rather, the Court indicated that the association is merely asserting “a claim” in the lien and the association remains obligated to prove its claim in order to prevail in its case and homeowners have the ability to contest the claim made.

The Florida Condominium Act contains substantially the same provision as set forth above in Section 718,116(5)(b) F.S.  Consequently, it is anticipated that a lower court would likely apply the conclusions of this case to a condominium association foreclosure case.

It remains to be seen whether this holding is going to be viewed as an anomaly or will be followed by the remaining District Courts in Florida.  Notwithstanding this easing of the perception of association requirements on this point, it remains the recommendation that all collection efforts by associations be fully documented to a “zero” balance on the specific homeowner account to minimize any possible adverse conclusion in an assessment foreclosure case.  Legal counsel familiar with community association law should be involved to assist in the formal collection efforts against any homeowner.

 

 

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An Introduction to HB 969: Florida’s Proposed Data Privacy Law by Becker

An Introduction to HB 969: Florida’s Proposed Data Privacy Law by Becker

  • Posted: Feb 18, 2021
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An Introduction to HB 969: Florida’s Proposed Data Privacy Law

Jack S. Kallus | Becker Lawyers
Client Advisory

 

Yesterday, House Bill 969 titled Consumer Data Privacy was introduced as a potential new law to protect the personal data of Florida consumers. Governor Ron DeSantis’ stated goal for the bill is to “safeguard the privacy and security of consumer data.”

The bill is intended to give consumers more control over the personal information that businesses routinely collect and may even sell to third parties. Many of the basic rights under the new bill mirror that of the California Consumer Privacy Act passed in 2018 (CCPA). Like the CCPA, HB 969 attempts to secure new privacy rights for Florida consumers. If you are a Florida resident, you may ask businesses to disclose what personal information they have about you and what they do with that information as well as the right to request a business delete and to not sell your personal information. Consumers will also have the right to be notified, before or at the point businesses collect personal information, about the types of personal information being collected and what the business may do with that information. Generally, businesses will not be able to discriminate against you for exercising your rights under HB 969.

As stated above, the consumer will be provided the right to request that businesses disclose what personal information they have collected, used, shared, or sold about the consumer, and why they collected, used, shared, or sold that information. Businesses must provide a consumer with this information for the twelve-month period preceding the request and must provide the information free of charge.

If passed, HB 969 would require businesses to inform consumers about certain information being collected at the time of collection. Businesses would be required to inform consumers about:(i) categories of personal information collected; (ii) specific pieces of personal information collected; (iii) sources from which the business collected personal information; (iv) purposes for which the business uses the personal information; (v) categories of third parties with whom the business shares the personal information; and (vi) categories of information that the business sells or discloses to third parties.

If the business sells consumers’ personal information, then the information at collection must include a “Do Not Sell or Share My Personal Information” link. The information of consumer rights must also contain a link to the business’s privacy policy, where consumers can get a description of the business’s privacy practices and of their privacy rights.

 

A Florida consumer may also request that businesses stop selling their personal information (“opt-out”). With some exceptions, businesses cannot sell your personal information after they receive an opt-out request unless later provide authorization allowing them to do so again. Businesses must respect the consumer’s decision to opt-out for at least twelve months before requesting that the consumer authorize the sale of the consumer’s personal information. Businesses can offer consumers financial incentives in exchange for collecting, keeping, or selling personal information. However, businesses cannot use financial incentive practices that are unjust, unreasonable, coercive, or usurious in nature.

After discovering what personal information is collected, used, shared or sold a consumer may request that a business delete the personal information collected and to tell their service providers to do the same. However, there are many exceptions that allow businesses to keep personal information. Businesses must respond to a request to delete within 45 calendar days and can only extend that deadline once by another 30 days (75 days total) if they notify the consumer.

Consumers may be worried about retaliation for exercising rights under HB 969. However, the bill prohibits businesses from denying goods or services, charging a different price, or providing a different level or quality of goods or services just because a consumer exercised rights under the proposed law. Businesses also cannot make the consumer waive these rights, and any such contract provision is unenforceable.

What happens if a business violates HB 969? What rights are given to the consumer? Much like the CCPA, HB 969 only provides a private cause of action against a business if there is a data breach, and even then, only under limited circumstances. A consumer can sue a business if their nonencrypted and nonredacted personal information was stolen in a data breach as a result of the business’s failure to maintain reasonable security procedures and practices to protect it. If this happens, the consumer can sue for the amount of monetary damages actually suffered from the breach or up to $750 per incident. An important aspect of the proposed law is that it does not provide for prevailing party legal fees.

For all other violations of HB 969, only the Department of Legal Affairs (“Department”) can file an action. If the Department has reason to believe that any business is in violation and that proceedings would be in the public interest, the Department may bring an action against such business and may seek a civil penalty of not more than $2,500 for each unintentional violation or $7,500 for each intentional violation. Such fines may be tripled if the violation involves a consumer who is sixteen years of age or younger. A business may be found to be in violation if it fails to cure any alleged violation within 30 days after being notified in writing by the Department of the alleged noncompliance.

The bill also contains other provisions outlining who is protected under the bill, what is considered personal information, data retention and biometric information rules and procedures for businesses to follow. We will publish additional articles exploring these provisions and expand on the information addressed in this article. In addition, we will explore the importance of Florida enacting a well-balanced privacy law which does not act as an anchor for businesses and appropriately protects the rights of Florida consumers.

 

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