61B-21.003. Penalty Guidelines

(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. (b) Mitigating circumstances may include, but are not limited to, the following: 1. The violation or harm was related to a natural or manmade disaster. 2. The violation caused no harm to unit owner(s) or other persons or entities. 3. The association took affirmative or corrective action before it received the division’s written notification of the violation. 4. The association expeditiously took affirmative or corrective action after it received the division’s written notification of the violation. 5. The association cooperated with the division during the investigation. (4) In addition to the penalties established in this rule chapter, the division reserves the right to seek to recover any other costs, penalties, attorney’s fees, court costs, service fees, collection costs, and damages allowed by law.