Florida Administrative Code › 61 - DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION › 61B - Division of Florida Condominiums, Timeshares and Mobile Homes › Chapter 61B-21 - CONDOMINIUM RESOLUTION GUIDELINES FOR UNIT OWNER CONTROLLED ASSOCIATIONS › Section 61B-21.003 - Penalty Guidelines

Current through Reg. 50, No. 138; July 16, 2024
(1) Pursuant to
				Section 718.501(1)(d)6., F.S., the division sets forth below disciplinary
				guidelines from which disciplinary penalties will be imposed upon affected
				parties guilty of violating Chapter 718, F.S., and the rules promulgated
				thereunder. The purpose of the disciplinary guidelines is to provide notice to
				affected parties of the range of penalties which may be imposed for each count.
				Multiple counts of the violated provision or a combination of the listed
				violations will be added together to determine an overall total penalty.
				Nothing in this rule chapter shall limit the ability of the division to
				informally dispose of administrative actions or complaints by stipulation,
				settlement agreement, or consent order. Nothing in this rule chapter shall
				limit the division's ability to seek judicial enforcement and remedies through
				the courts. The provisions of this rule chapter shall not be construed so as to
				prohibit or limit any other administrative, civil, or criminal action that may
				be brought, including notices to cease and desist.
(2) Penalties will be assessed beginning with
				the middle of the specified range and adjusted up or down based upon any
				aggravating or accepted mitigating circumstances. The minimum total penalty to
				be assessed shall be calculated according to these guidelines or $500,
				whichever amount is greater. In no event shall a penalty of more than the
				statutory maximum be imposed for a single violation. A penalty range of $10 to
				$30 per unit are set forth for each violation. The absence of any violation
				from this rule chapter shall not be construed to indicate that the violation
				does not cause substantial harm or is not subject to a penalty. In any instance
				where the violation is not listed in this rule chapter, the penalty will be
				determined by consideration of the closest analogous violation.
Category
Statute or Rule
Description of
							 Conduct/Violation
Accounting Records
718.111(12)(a)11., F.S.
61B-22.002, F.A.C.
Insufficient or incomplete accounting records.
Accounting Records
718.111(12)(a)11., F.S.
Failure to maintain separate accounting records for
							 each condominium.
Assessing
718.112(2)(g),
							 F.S.
Assessments not sufficient to meet expenses.
Assessing
718.112(2)(g),
							 F.S.
Collecting assessments less frequently than
							 quarterly.
Assessing
718.115(2),
							 F.S.
Assessments not based upon the shares stated in the
							 declaration of condominium or required by statute.
Assessing
718.115(4),
							 F.S.
Assessments not properly apportioned among multiple
							 condominiums.
Assessing
718.116(3),
							 F.S.
Failure to charge interest on past-due
							 assessments.
Assessing
718.116(9),
							 F.S.
Developer or other owner improperly excused from
							 paying assessments.
Board
718.110(4),
							 F.S.
Improperly amending the declaration of condominium to
							 change the proportion or percentage by which the unit owner shares the common
							 expenses of the condominium and owns the common surplus of the
							 condominium.
Board
718.111(4),
							 F.S.
Improper use fee.
Board
718.111(7)(a),
							 F.S.
Mortgaging or conveying association property without
							 unit-owner approval.
Board
718.111(11)(h),
							 F.S.
Failure to maintain adequate fidelity bonding.
Board
718.112(2)(a)1., F.S.
Compensating officers or members of the board without
							 documentary authority.
Board
718.112(2)(i),
							 F.S.
Improper transfer fees or security deposits.
Board
718.116(3),
							 F.S.
Levying late fees without documentary
							 authority.
Board
718.303, F.S.
Imposing fines without proper notice and opportunity
							 for hearing. Imposing excessive fines. Improper suspension of voting rights
							 without proper notices.
Board
718.112(2)(d)2., F.S.
Allowing ineligible person to run for board of
							 administration.
Board
718.3026(1),
							 F.S.
Failure to obtain competitive bids on contracts that
							 exceed five percent of the association's budget.
Budgets
718.112(2)(e),
							 F.S.
Failure to propose/adopt budget for a given
							 year.
Budgets
718.112(2)(f)1., F.S.
Failure to include a schedule of limited common
							 element expenses in budget.
Budgets
61B-22.003(4)(a),
							 F.A.C.
Failure to prepare a separate budget for each
							 condominium operated by the association as well as for the association.
Budgets
61B-22.003(1)(e), (f),
							 (g), F.A.C.
Failure to include reserve schedule in the proposed
							 budget. Failure to disclose converter-reserve funding.
Budgets
718.112(2)(f)2., F.S.
61B-22.005(3),
							 (5), F.A.C.
Improper calculation of reserve requirements.
Commingle
718.111(14),
							 F.S.
Commingling association funds with non-association
							 funds.
Commingle
718.111(14),
							 F.S.
61B-22.005(2),
							 F.A.C.
Commingling reserve funds with operating
							 funds.
Common Expenses
718.103(9),
							 718.115(1),
							 F.S.
61B-23.003(3),
							 F.A.C.
Using association funds for other than common
							 expenses.
Conflict of Interest
718.112(2)(p),
							 F.S.
Contracting with a service provider owned by a board
							 member.
Conflict of Interest
718.3027(1), (2),
							 (4), F.S.
Failing to properly disclose a conflict of
							 interest.
Converter Reserves
718.618(3)(b),
							 F.S.
Improper use of converter reserves.
Debit Card
718.111(15),
							 F.S.
Use of an association debit card for any association
							 expense.
Elections
718.112(2)(d),
							 F.S.
61B-23.0021(2),
							 F.A.C.
Failure to hold an annual election.
Elections
718.112(2)(d)4., F.S.
Failure to use ballots or voting machines.
Elections
61B-23.0021(8),
							 F.A.C.
Failure to provide space for name, unit number, or
							 signature on outer envelope.
Elections
718.112(2)(d)4.a., F.S.
61B-23.0021(4),
							 F.A.C.
Failure to provide, or timely provide, first notice
							 of election.
Elections
61B-23.0021(3),
							 F.A.C.
Improper nomination procedures in election.
Elections
61B-23.0021(2),
							 F.S.
Election not held at time and place of annual
							 meeting.
Elections
61B-23.0021(6),
							 F.A.C.
Failure to provide candidate with a receipt for
							 written notice of candidacy.
Elections
718.112(2)(d)4.a., F.S.
61B-23.0021(7),
							 (8), F.A.C.
Failure to provide, or timely provide, second notice
							 of election or omitting ballots, envelopes, or candidate information
							 sheets.
Elections
718.112(2)(d)4., F.S.
61B-23.0021(5),
							 F.A.C.
Ballot included a candidate who is ineligible. Ballot
							 not including an eligible candidate.
Elections
61B-23.0021(8),
							 F.A.C.
Voters allowed to rescind or change their previously
							 cast ballots.
Elections
61B-23.0021(8),
							 F.A.C.
Second notice of election and accompanying documents
							 included comments by board about candidates.
Elections
61B-23.0021(10)(a),
							 F.A.C.
Ballots not counted by impartial committee.
Elections
718.112(2)(d)4., F.S.
61B-23.0021(7),
							 F.A.C.
Association altered or edited candidate-information
							 sheets.
Elections
61B-23.0021(10)(a),
							 F.A.C.
Inner envelopes not placed in separate receptacle
							 before being opened.
Elections
61B-23.0021(9),
							 F.A.C.
Ballots not uniform. Ballots identify voter. Ballot
							 contained space for write-in candidate.
Elections
61B-23.0021(10),
							 F.A.C.
Outer envelopes not checked against list of eligible
							 voters.
Elections
61B-23.0021(10)(a),
							 (b),
F.A.C.
Counting ineligible ballots.
Elections
61B-23.0021(10),
							 F.A.C.
Failure to count properly cast ballots.
Elections
61B-23.0021(10),
							 F.A.C.
Outer envelopes opened prior to election
							 meeting.
Outer envelopes not opened in presence of unit
							 owners.
Elections
61B-23.0021(10)(a),
							 F.A.C.
Not counting ballots in the presence of unit
							 owners.
Elections
61B-23.0021(10)(b),
							 F.A.C.
Failure to notice meeting to verify outer envelope
							 information.
Elections
61B-23.0021(10)(c),
							 F.A.C.
Failure to timely hold a runoff election.
Elections
61B-23.003(7)(f),
							 F.A.C.
Improperly permitting a developer to vote for a
							 majority of the board.
Elections
61B-23.0021(10)(a),
							 F.A.C.
No blank ballots available at election
							 meeting.
Estoppel Certificate
718.116(8),
							 F.S.
Failure to timely provide an estoppel certificate or
							 failure of the certificate to contain all required components.
Final Order
718.501(1)(d)6., F.S.
Failure to comply with final order of the
							 division.
Fiduciary Duty
718.111(1)(a),
							 F.S.
Violating a fiduciary duty.
Investigation
718.501(1)(n),
							 F.S.
Failure to reasonably cooperate with an
							 investigation.
Property
718.111(7)(a),
							 F.S.
Failing to get approval for acquisition, conveyance,
							 lease, or mortgage of association real property.
Property
718.111(9),
							 F.S.
Improper purchase of unit at a foreclosure
							 sale.
Records
718.111(12)(a),
							 F.S.
Failure to maintain official records.
Records
718.111(12)(c),
							 F.S.
Requiring a unit owner to pay a fee for access to
							 association records.
Records
718.111(12)(b),
							 F.S.
Failure to maintain records within 45 miles, or
							 within the county, of the condominium property.
Records
718.111(12)(b),
							 (c), F.S.
Failure to timely provide access to records.
Failure to allow scanning or copying of
							 records.
Records
718.111(12)(f),
							 F.S.
718.501(1)(d)6., F.S.
Failure of outgoing board or committee member or
							 relinquish all official records and property of the association in his or her
							 possession or under their control to the incoming board within 5 days after the
							 election.
Reporting
718.111(13),
							 F.S.
Failure to timely provide annual financial report or
							 statements.
Reporting
61B-22.006(1),
							 F.A.C.
Failure to timely prepare annual financial statements
							 using fund accounting. Failure to prepare annual financial statements on
							 accrual basis.
Reporting
61B-22.006(1),
							 F.A.C.
Failure to prepare annual financial statements in
							 accordance with Generally Accepted Accounting Principles (GAAP). Failure to
							 have reviewed or audited annual financial statements prepared by a
							 Florida-licensed CPA.
Reporting
61B-22.006(2),
							 F.A.C.
Failure to include one or more components of the
							 annual financial statements (incomplete).
Reporting
61B-22.006(3)(a)
							 1., 6., and
61B-22.006(6),
							 F.A.C.
Failure to make significant reserve fund disclosures
							 in annual financial statements or annual financial report.
Reporting
61B-22.006(3)(a)
							 7., and
61B-22.006(6),
							 F.A.C.
Failure to include converter reserve disclosures in
							 the annual financial statements or annual financial report.
Reporting
61B-22.006(4),
							 F.A.C.
Failure to include reserve fund disclosures and/or
							 revenues, expenses, and changes in fund balances for each condominium and the
							 association in the annual financial statements of a multi-condominium
							 association.
Reporting
61B-22.006(5),
							 F.A.C.
Failure to show developer assessments separately from
							 other assessment revenues in the annual financial report (statement).
Reporting
61B-22.006(3),
							 and
61B-22.006(6)(c),
							 F.A.C.
Failure to include the special assessments
							 disclosures in the annual financial statements or annual financial
							 report.
Reporting
61B-22.006(6)(e),
							 F.A.C.
Failure to separately present revenues and expenses
							 for each condominium and the association in the annual financial report of a
							 multi-condominium association.
Reporting
61B-22.006(3)(e),
							 F.A.C.
Guarantee disclosures incomplete or missing from
							 annual financial statements.
Reporting
61B-22.004(5),
							 F.A.C.
Improper calculation of guarantor's final
							 obligation.
Reporting
718.111(13)(b),
							 F.S.
61B-22.006(6)(a),
							 F.A.C.
Annual financial report not prepared on a cash
							 basis.
Reporting
718.111(13)(b),
							 F.S.
Annual financial report does not include specified
							 receipt or expenditure items.
Reporting
61B-22.006(3)(d),
							 and
61B-22.006(6)(d),
							 F.A.C.
Annual financial statements or annual financial
							 report does not disclose revenues and expenses related to limited common
							 elements.
Reporting
718.111(13)(a),
							 F.S.
Providing lower level of annual financial reporting
							 than required based on the number of units and annual revenues.
Reserves
718.112(2)(f)2., F.S.
61B-22.005(6),
							 F.A.C.
Failure to fund reserves in a timely manner. Failure
							 to fully fund reserves.
Reserves
718.112(2)(f)2., F.S.
61B-22.005(8),
							 F.A.C.
Failure to follow proper method to waive or reduce
							 reserve funding.
Reserves
718.112(2)(f)3., F.S.
61B-22.005(7),
							 F.A.C.
Using reserve funds for other purposes without proper
							 unit owner approval.
Special Assessment
718.116(10),
							 F.S.
Using special assessment funds for other
							 purposes.
Special Assessment
718.116(10),
							 F.S.
Special assessment notice does not state purpose of
							 assessment.
Website
718.111(12)(g),
							 F.S.
Failing to include required documents on
							 website.
(3)
				When either the Petitioner or Respondent is able to demonstrate aggravating or
				mitigating circumstances to the division or hearing officer in an enforcement
				action by clear and convincing evidence, the division or hearing officer shall
				be entitled to deviate from the above guidelines in imposing or recommending
				discipline.
(a) Aggravating circumstances may
				include, but are not limited to, the following:
1. Filing or causing to be filed any
				materially incorrect document in response to any division request or
				subpoena.
2. Financial loss to
				parties or persons affected by the violation.
3. Financial gain to parties or persons
				responsible for the violation.
4.
				The disciplinary history of the association.
5. The harm caused to unit owner(s) or other
				persons or entities.
6. The
				violation occurred for a long period of time.
7. The length of time between
				violations
8. The association
				impeded the division's investigation or authority.