LEGISLATIVE UPDATE

The Florida Legislature is in full swing. Each year lots of bills get filed, but few make it to the finish line and become law. Here’s an update on two bills that are moving towards becoming law:

SB 394: This is my mandatory education bill, requiring directors to get certified by attending a course. Senator Anna Maria Rodriguez introduced the bill at The Regulated Industries Committee In Florida’s Senateand the Committee passed it by a vote of 8 to zero. Now it goes to the Community Affairs Sub Committee for their approval. And on the House side, our companion bill HB 547 was just referred to the Civil Justice and Property Right Sub Committee and it needs to get set down for a hearing there. And that bill was filed by Representative David Borrerro. So, we’re moving ahead, we’re getting closer to mandatory education for Board members but we are not there yet?

Really only other bill is gaining traction and that would be Senate Bill 7042. This one is produced in light of the Surfside tragedy. And there is a lot in that bill. I will try to summarize if possible but it’s a 76 page bill. Here we go:

You don’t reserve just for roof, pavement and painting —– now you have to reserve for Roof, Structure, Fireproofing and fire protection systems, Elevators. Heating and cooling systems. Plumbing. Electrical systems. Swimming pool or spa and equipment. Seawalls. Pavement and parking areas. Drainage systems. Painting. Irrigation systems.
A reserve study would have to be done once every three years for buildings 3 stories or more in height.
the members of the association may vote to waive reserve contributions or reduce reserve funding if the association’s reserve obligations are funded consistent with the reserve study currently in effect or if the association provides an alternative funding method for the association’s reserve obligations. (For example, borrowing from a bank)
It makes it more difficult for the developer to waive reserve funding;
Reserve funds that are used for a purpose other than authorized reserve expenditures must be reinstated in the reserve account or accounts within 12 months after the expenditure.
If the association is required to perform a reserve study and the budget of the association does not fund the association’s reserve obligations consistent with the reserve study currently the financial report must also contain the following statement in conspicuous type: THE BOARD OF ADMINISTRATION FOR THIS ASSOCIATION HAS FAILED TO SATISFY THE ASSOCIATION’S RESERVE FUNDING OBLIGATIONS UNDER SECTION 718.112(2)(f), FLORIDA STATUTES. THE BUDGET OF THE ASSOCIATION DOES NOT PROVIDE FOR FULLY FUNDED RESERVE ACCOUNTS FOR CAPITAL EXPENDITURES AND DEFERRED MAINTENANCE CONSISTENT WITH THE ASSOCIATION’S RESERVE STUDY. FAILURE TO FUND RESERVES CONSISTENT WITH THE ASSOCIATION’S RESERVE STUDY MAY RESULT IN UNANTICIPATED SPECIAL ASSESSMENTS REGARDING THOSE ITEMS.
A residential condominium building that is three stories or more in height must have a milestone inspection performed by December 31 of the year in which the building reaches 30 years of age, (STATEWIDE) based on the date the certificate of occupancy was issued, and every 10 years thereafter.

A residential condominium building that is three stories or more in height and is located within 3 miles of a coastline must have a milestone inspection by December 31 of the year in which the building reaches 20 years of age, based on the date the certificate of occupancy was issued, and every 7 years thereafter.

A Milestone Inspection is a structural inspection of a building by a licensed architect or engineer authorized to practice in this state for the purposes of attesting to the life safety and adequacy of the structural components of the building and, to the extent reasonably possible, determining the general structural condition of the building as it affects the safety of such building.

But………………A milestone inspection consists of two phases: (a) For phase one a licensed architect or engineer authorized to practice in this state shall perform a visual examination of all areas of a building and provide a qualitative assessment of the structural conditions of the building. Surface imperfections, such as cracks, distortion, sagging, excessive deflections, significant misalignment, signs of leakage, or peeling of finishes, must be critically viewed as possible signs of structural distress. If the architect or engineer finds no signs of structural distress to any building components under visual examination, phase two of the inspection, is not required.

Phase two of the milestone inspection must be performed if any structural distress is identified during phase one. The inspector in charge of a phase two inspection must be a licensed Florida engineer or licensed architect who has a minimum of 5 years of experience designing the primary structural components of buildings and a minimum of 5 years of experience inspecting structural components of existing buildings of a similar size, scope, and type of construction. A phase two inspection may involve destructive or nondestructive testing at the inspector’s direction. The inspection may be as extensive or as limited as necessary to fully assess damaged areas of the building in order to confirm that the building is safe for its intended use or to recommend a program for fully assessing and repairing damaged portions of the building.

The Phase One and Phase 2 reports must be given to the local Building Official who can prescribe timelines for the repairs, and the unit owners.
The necessary maintenance, repair, or replacement of association property is not a material alteration or substantial addition requiring unit owner approval and The association is not liable for alternative housing costs, lost rent, or other expenses if a resident must vacate a unit or is denied access to a common element for necessary maintenance, repair, or replacement of association property.
Regardless of what the governing docs say: the board may adopt a special assessment or borrow money for the necessary maintenance, repair, or replacement of association property.
If the association has voted to waive reserves or if the reserve accounts are not being properly funded, this must be disclosed on estoppel certificates.
An owner may take the board to arbitration for failing to comply with these requirements.

Bottom line, it’s time to pony up some money to pay for all these inspectors and to pay to fix the damages they find.

ERIC: There was one law the Florida Legislature accomplished this year – that has to do with our no pet communities and emotional support animals.

And you want to take a look at FL. STAT 760.27: (a) “Emotional support animal” means an animal that does notrequiretrainingto do work, perform tasks, provide assistance,or providetherapeuticemotional support by virtueofitspresencewhichalleviatesoneormoreidentifiedsymptomsoreffectsofaperson’sdisability.

KAREN: AND TO RE-CAP – The ADA or Americans With Disabilities Act does not not normally apply in a condominium, that law applies to businesses. In fact, The ADA no longer recognizes emotional support animals .

ERIC: The Federal and Florida Fair Housing Acts however, which apply to housing, still recognizes emotiona l support animals however — and it is primarily these emotional support animal cases that are litigated the most.

So again- What must the owner prove?

A disability “a physical or mental impairment which substantially limits one or more of such person’s major lifeactivities such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing,learning,andworking. So, the person must demonstrate that they suffer from a handicap and that the pet alleviates the handicap and isnecessarytonowuseandenjoythedwelling

KAREN: SO UNDER WHATCIRCUMSTANCES CAN THE ASSOCIATION SIMPLY SAY NO TO ANEMOTIONALSUPPORTANIMALREQUEST?

ERIC: Unless otherwise prohibited by federal law, rule, or regulation, a housing provider may:

Deny a reasonable accommodation request for an emotional support animal if such animal poses a direct threat to the safety or health of others or poses a direct threat of physical damage to the property of others, which threat cannot be reduced or eliminated by another reasonable accommodation. But of course, sometime you don’t know this until after the animal has moved in.

KAREN: CAN THE ASSOCIATION ASK FOR MEDICAL RECORDS?

ERIC: NO. BUT…….

If a person’s disability is not readily apparent, the association may request reliable information that reasonably supports that the person has a disability. Supporting information may include:

RELIABLE DOCUMENTATION

A determination of disability from any federal, state, or local government agency.
Receipt of disability benefits or services from any federal, state, or local government agency.
Proof of eligibility for housing assistance or a housing voucher received because of a disability.
Information from a health care practitioner, a telehealth provider, or any other similarly licensed or certified practitioner or provider in good standing with his or her profession’s regulatory body in another state but only if such out-of-state practitioner has provided in-person care or services to the tenant on at least one occasion. Such information is reliable if the practitioner or provider has personal knowledge of the person’s disability and is acting within the scope of his or her practice to provide the supporting information.
Information from any other source that the housing provider reasonably determines to be reliable.

KAREN: WEHAVEHEARDOFINSTANCESONTHISSHOWWHEREAPERSONWANTSTOHAVEMORETHANONE EMOTIONALSUPPORTANIMAL.CANTHEYDOTHAT?

THE ASSOCIATION MAY:

If a person requests to keep more than one emotional support animal, request information regarding the specific need for each animal.

KAREN: WHAT ABOUT REQUIRING PROOF THAT THE ANIMAL IS PROPERLY VACCINATED?

Require proof of compliance with state and local requirements for licensing and vaccinating each emotiona l support animal.

KAREN: ARE THERE LIMITATIONS ON WHAT AN ASSOCIATION MAY ASK SOMEONE WHO WANTS AN EMOTIONAL SUPPORT ANIMAL?

REQUEST LIMITATIONS

(b) A housing provider may develop and make available to persons a routine method for receiving and processing reasonable accommodation requests for emotional support animals; however, a housing provider may not require the use of a specific form or notarized statement, or deny a request solely because a person did not follow the housing provider’s routine method.

KAREN: CAN PEOPLE STILL SIGN UP ON THOSE RIDICULOUS WEBSITES THAT QUALIFY YOUR PET AS AN EMOTIONAL SUPPORT ANIMAL FOR $49.00?

ERIC: It’s clarified now an identification card, patch, certificate, or similar registration obtained from the Internet

is not, by itself, sufficient information to reliably establish that a person has a disability or a disability-related needfor an emotional support animal.

KAREN: YOU AND I HAVE ALWAYS BEEN VOCAL ABOUT HOW DOCTORS SHOULD GET IN TROUBLE FOR WRITING NOTES FOR PATIENTS WHO REALLY DON’T MEET THE NEED FOR AN EMOTIONAL SUPPORT ANIMAL.

ERIC” A DOCTOR CAN NOW BE DISCIPLINED FOR:

Providing information,including written documentation,indicatingthat a person has a disabilityor supportingaperson’s need for an emotionalsupport animal withoutpersonal knowledgeof the person’s disability or disabilit y-relatedneedforthespecificemotionalsupportanimal.

KAREN: AND WHAT ABOUT A PATIENT WHO LIES?

ERIC: AND SO CAN THE PATIENT:

817.265Apersonwhofalsifies informationorwrittendocumentation,orknowinglyprovidesfraudule ntinformationor writtendocumentation, foran emotionalsupportanimalor otherwiseknowinglyand willful lymisrepresents himself or herself,through his or her conduct or through a verbal or written notice, as having adisabilityor disability-relatedneed for an emotionalsupport animalor being otherwisequalifiedto use anemotional support animal, commits a misdemeanor of the second degree. In addition, within 6 months after aconvictionunder this section,a person must perform 30 hours of community service for an organizationthat servespersonswithdisabilitiesorforanotherentityororganizationthatthecourtdeterminesisappropriate.

ERIC: So there it is……..some new laws on emotional support animals. Despite these new laws, and the attempt to perhaps make things easier to understand……here’s what I can assure everyone……these fights are never going away. I learned this a long time ago…….people will fight harder to keep their pets than they will their spouse or kids. These cases can be expensive to fight for both sides and definitely can take on a life of their own.

ERIC: Let’s move on to a topic that for all intents and purposes should be fun for the community. But you would be surprised how many boards are wrongfully accused of being corrupt when it comes to running the condo or HOA Bingo game. There are a lot of us that we love to gamble. For some, you don’t even have to leave the community. Perhaps the most common form of gambling in our condos and HOAs is running a Bingo game.

KAREN: SO IS IT 100% LEGAL TO ORGANIZE ONE OF THESE BINGO GAMES IN YOUR CONDO ORHOA?ARETHEREANYLIMITS?

ERIC: There are…..Before starting bingo in your community however, here’s what you need to know:

4)Therightofacondominiumassociation,acooperativeassociation,ahomeowners’associationasdefinedin

s. 720.301, a mobile home owners’ association, a group of residents of a mobile home park as defined in chapter 723, or a group of residentsof a mobilehomeparkorrecreationalvehicleparkasdefinedinchapter 513 toconductbingo is conditioned upon the return of the net proceeds from such games to players in the form of prizes afterhavingdeductedtheactualbusinessexpensesforsuchgamesforarticlesdesignedforandessentialtotheoperation,conduct,andplayingofbingo.

KAREN: SO ESSENTIALLY THE ASSOCIATION CAN’T BE MAKING A PROFIT —- THEY CAN ONLY COLLECT THE ACTUAL EXPENSES OF RUNNING THE GAME. BUT SUPPOSE THEY WIND UP AHEAD AT ATHE END OF THE NIGHT?

Eric: The statute addresses that and says: Any net proceeds remaining after paying prizes may be donated by the association to a charitable, nonprofit, or veterans’ organization which is exempt from federal income tax under the provisions of s. 501(c) of the Internal Revenue Code to be used in such recipient organization’s charitable, civic, community, benevolent, religious, or scholastic works or similar activities or, in the alternative, such remaining proceeds shall be used as specified in subsection (3).

KAREN: SO THE REMAINING AMOUNTS CAN BE DONATED TO CHARITY?

KAREN: That’s right Karen and if the excess proceeds are not going to be given to charity the statute states:

The rightto conduct bingogames hereunderis conditionedupon the return of all the proceeds from such games tothe players in the form of prizes.If at the conclusionof play on any day duringwhicha bingogame is allowedtobe playedunderthissectionthereremainproceedswhichhavenotbeenpaidoutasprizes,theorganiza t io nconductingthegameshallatthenextscheduleddayofplayconductbingogameswithoutanychargetotheplayersandshallcontinuetodosountiltheproceedscarriedoverfromthepreviousdaysplayedhavebeenexhausted.

KAREN: SO IT’S CLEAR THAT UNLIKE A CASINO WHERE THE HOUSE GETS TO KEEP THE PROFITS, IT DOESN’T WORK THAT WAY IN OUR COMMUNITY ASSOCIATIONS. NO PROFITS SHALL BE MADE. YOU’RE EITHER DONATING THE PROFITS TO CHARITY OR ARE MAKING SURE ALL OF THE MONEY GOES BACK TO THE PARTICIPANTS IN THE FORM OF PRIZES.

ERIC: In sum, it’s not a way to collect money for a new roof. The profits can’t be used for that.

KAREN: WHAT ABOUT OTHER GAMBLING GAMES LIKE MAH JONG OR POKER?

Eric: I have never seen Bingo games catch on among men. Generally, Bingo is for the women, while the men like to play cards, more specifically poker and rummy. My dad loved both and never once went to play bingo. As far as he was concerned, “It was for girls.” But as far as my mom goes….the big game in my house growing up was Mah Jong. When I was a child, every Tuesday night my mom would play. Every 4th or 5th Tuesday night my mom would be the host. That meant one thing to me: Lots of cookies and cake. I also remember trying to fall asleep in my room over my mom’s friend’s yelling “4 bam” “2 crack” “Mah Jong.” Occasionally the game would run very late, even when Johnny Carson was coming on at 11:30. Great memories.

KAREN: MOST OF US LIKE SOME FORM OF GAMBLING AS LONG AS WE STAY WITHIN OUR MEANS. AND IT SEEMS AS IF FLORIDA LAW ALLOWS THESE SMALL-TIME GAMES TO TAKE PLACE IN OUR COMMUNITY ASSOCIATIONS.

ERIC: That’s right Karen. Here are the rules:

FloridaStatute849.085allowsfor

(a) “Penny-ante game” means a game or series of games of poker, pinochle, bridge, rummy, canasta, hearts, dominoes, or mah-jongg in which the winnings of any player in a single round, hand, or game do not exceed $10 in value.

KAREN: SO THE FIRST RULE IS THAT THE POT CAN’T EXCEED TEN BUCKS.

ERIC: and that’s just one rule. Here are some others:

The game must be conducted in a dwelling – and under the statute the common elements are considered a dwelling..
A person may not receive any consideration or commission for allowing a penny-ante game to occur in his or her dwelling. THE HOUSE GETS NOTHING.
A person may not directly or indirectly charge admission or any other fee for participation in the game.
A person may not solicit participants by means of advertising in any form, advertise the time or place of any penny-ante game, or advertise the fact that he or she will be a participant in any penny-ante game.

KAREN: SO A CONDO CAN’T ADVERTISE A POKER OR MAH-JONG GAME – BUT THE BINGO STATUTE DOESN’T ADDRESS THIS.

ERIC: Exactly, so the condo can advertise a Bingo game. Some other rules:

A penny-ante game may not be conducted in which any participant is under 18 years of age.
A debt created or owed as a consequence of any penny-ante game is not legally enforceable.

ERIC: Now this is interesting. Florida has a statute that says gambling debts are unenforceable as a matter of law. So if Sally bets Margaret a thousand dollars on the final Mah Jong round and loses and refuses to pay Margaret, Margaret can’t sue Sally in a court of law. In Brooklyn, Sally may have her knee caps broken, but in Florida you can’t use the courthouse to collect on a gambling debt.

My first year out of law school I had a great case. A client of mine went to the Bahamas and took out a marker from a hotel, and it was undisputed that he used the marker to gamble. He lost and did not pay back the marker. The Bahamian casino sued him here in Florida. I argued that Florida has a ststute right on point that says you can’t sue on a gambling debt. The trial judge ruled however that the law was old and that since the 1800s (when the statute was passed) Florida changed, and now allows for a lottery, horse racing, limited casino gambling, jai-alai and other forms of gambling. So he ruled that the law was no longer valid. I argued that if the law was no longer valid, The Florida Legislature can repeal it —NOT YOU —- YOUR JOB IS TO ENFORCE THE LAWS AS A JUDGE – NOT REWRITE AND IGNORE WHAT YOU PERSONALLY DON’T LIKE. On appeal, the 3^rdDCA

agreed with my argument and upheld the statute.

KAREN: SO IN A NUTSHELL, GAMBLING IS ALLOWED IN OUR CONDOS AND HOAS AS LONG AS THE POTS DON’T EXCEED $10.00, THE HOUSE DOESN’T PROFIT AND KIDS AREN’T ALLOWED TO PLAY. WE ALL REMEMBER A FEW YEARS AGO A FEW ELDERLY WOMEN WERE INVESTIGATED BY THEIR LOCAL SHERIFF’S OFFICE FOR RUNNING HIGH STAKES MAH -JONG GAMES BUT THE ALLEGATIONS PROVED FALSE. THEY WERE FANTASTIC GUESTS HERE ON THE SHOW.

ERIC: And I regret not taking them up on their offer to make me brisket and kreplach should I ever pay a visit to their condo.

ERIC: Here’s a new topic…….what goes on the agenda for a meeting? So you ran for the Board because you were tired of the board members ignoring your requests to discuss certain issues at board meetings. It gets better………..you won. The only problem is that you’re still in the minority, as you and your friend only constitute 2 of the five seats. As a result, nothing has changed. Your issues still don’t find their way on to the agenda. You are still being ignored. What’s the remedy?

KAREN: BUT IF YOU’RE ON THE BOARD NOW…DON’T YOU DECIDE WHAT ISSUES ARE GOING TO BE DISCUSSED?

ERIC: There is nothing in either the condo or HOA statute that gives a board member the right to determine what goes on the agenda for a board meeting. There is also probably not a word about it in your governing documents either. Interestingly enough, only the condo statute even requires the publication of an agenda. The HOA statute does not.— Only notice of the meeting.

KAREN: SO, SUPPOSE YOU GET ON THE BOARD AND THE PRESIDENT AND THE MANAGERREFUSETOPLACEWHAT’SIMPORTANTTOYOUONTHEAGENDA?

ERIC: The only rights you have are the same rights that every other condominium or HOA owner has. The statute say

If 20 percent of the voting interests petition the board to address an item of business, the board, within 60 days after receipt of the petition, shall place the item on the agenda at its next regular board meeting or at a special meeting called for that purpose. So, all you can do is try to gather the signatures of 20% of the community and force the issue.

ERIC: Maybe it’s time for both statutes to require an agenda for topics to be discussed at board meetings. Maybe it’s also time for any board member to have a right to place an item that’s important to them on the meeting agenda. It doesn’t mean that the director’s position is correct or is necessarily in the best interest of the association. If that’s the case, their agenda item will go nowhere. No harm. No foul. But if there’s one thing I learned in 27 years, it’s that the harder a board tries to squelch speech at meetings, the louder the meetings normally get.

E-mails

Great e-mail that came in over the weekend – under the heading of you can’t make this stuff up

Eric,

Ihaveaninterestingquestionforyouthatyoucanshareinyourradioshoworyourseminars.

Can a person that has Mental Illness run for the Board?

ThisquestioncametomeafterIneededtoapproveanEmotionalSupportDogprescribedbyadoctorwithaletterthatinformedthatthispersonhasthisproblem.

ERIC: I’m not going to name the person who asked the question — but I think the correct answer is that the law actually requires you to have a mental illness in order to run for the Board – because what person who is sane would actually do it.

ERIC: Question from the owner:

Our ballot has three slots and four candidates.

May members vote for only two and have a valid ballot?

Can the board invalidate the whole ballot if only two votes are cast?

OF COURSE YOU CAN VOTE FOR ONLY TWO

IT HAPPENS QUITE OFTEN THAT EVEN THOUGH YOU ARE ASKED FOR EXAMPLE TO VOTE FOR UP TO 5 — PEOPLE SELECT ONLY 2 OR 3.

IT IS A VALID BALLOT AND THOSE VOTES COUNT.

THE ONLY WAY THE BALLOT IS INVALIDATED – IS IF YOU VOTE FOR MORE THAN THE NUMBER OF VACANCIES —

Linda asks: Nominating committees. Are they allowed per 718 to exist. Our documents do not say anything on the matter.

Answer: 61b-23.0021 of the Florida Administrative Code states — in regards to condominiums:

(3) A board of administration shall not create or appoint any committee for the purpose of nominating a candidate or candidates for election to the board. A board may create or appoint a search committee which

Should not have the authority to nominate any candidate, but may encourage qualified persons to become candidates for the board.

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ERIC: The election season will be back before we know it.— and for both condominiums and HOAs — remember that if you don’t get certified either one year before becoming a board member or within 90 days after becoming a board member, you are automatically off the board. And one way of getting certified is by attending our popular Condo Craze Board Certification Course that has certified over 20,000 Floridians. Our class was also approved by the DBPR to provide two 2020 Legal Update credits for all community association managers that attend.

Palm Beach Convention February 1^st at 9:00 am at the L&L Condo and HOA Expo

Miami Beach February 4^th at 9:00 am at 9:00 am at the L&L Condo and HOA Expo

Broward County February 15^th at 9:00 am at 9:00 am at the L&L Condo and HOA Expo

KAREN: ERIC TEACHES SO MANY DIFFERENT TOPICS AT THE SEMINAR INCLUDING RESERVES, THE IMPORTANCE OF THE “FROM TIME TO TIME LANGUAGE,” OFFICIAL RECORDS, THE DIFFERENT TYPES OF DOCUMENTS THAT GOVERN YOUR COMMUNITY, SERVICE AND EMOTIONAL SUPPORT ANIMALS, COLLECTIONS, MANAGER RESPONSIBILITIES, ALL OF THE NEW LAWS THAT WERE PASSSED THIS YEAR AND A LOT MORE. FOOD IS SERVED, EVERYONE WALKS OUT WITH A NICE CERTIFICATE AND CERTAINLY A LITTLE WISER.

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