Florida Community Association 2019 Legislative Update

HB 153 – Landlords and Tenants – § 83.51, Fla. Stat.:

• Requiring landlords to provide their tenants with a physical copy of any restrictive covenants governing the premises and occupancy of the premises at the time the landlord and tenants execute a rental agreement.
• Requiring landlords to provide their tenants with written notice by certified mail of any changes to the covenants or the enforcement of the covenants within 10 business days.
• If passed, this law would become effective July 1, 2019.

HB 155 – Homeowners’ Association Recalls – § 720.303, Fla. Stat.:

• Adding a qualification for recalls, whereby directors may be recalled and removed from office by a majority of the total voting interests who physically reside in the community. Previously, the requirement to physically reside in the community was not in place.
• If an association’s declaration, articles of incorporation or bylaws specifically provide that members may also recall and remove directors by a vote taken at a meeting, such special meeting of the members may be called by 10 percent (10%) of the voting interests who physically reside in the community. Previously, the requirement to physically reside in the community was not in place.
• If passed, this law would become effective July 1, 2019.

HB 565 – Housing Discrimination – § 760.07, Fla. Stat.; § 760.34, Fla. Stat.; § 760.35, Fla. Stat.:

• Removing housing discrimination as a cause of action for certain relief and damages stemming from violations of the Florida Civil Rights Act of 1992.
• Allowing an aggrieved person to commence a civil action in court without first being required to petition for an administrative hearing or exhaust administrative remedies before commencing such action.
• Providing that if a conciliation agreement has been obtained, then the aggrieved person may not file any action under this section regarding the alleged discriminatory housing practice that forms the basis for the complaint except for the purpose of enforcing the terms of the conciliation agreement.
• If passed, this law would become effective immediately upon becoming law.

HB 647 – Community Association Fire and Life Safety Systems – § 633.2225, Fla. Stat.; § 718.112, Fla. Stat.; § 719.1055, Fla. Stat.:

• Clarifying that buildings of seventy-five (75) feet or less in height, measured from the lowest level of fire department vehicle access to the floor of the highest occupiable story, do not have an obligation to retrofit.
• Proposing that an association may also vote to waive the requirement to retrofit a building with an engineered life safety system (ELSS), as well as the previous allowance to waive the requirement to retrofit with fire sprinklers. The Fire Code defines an ELSS as a system that consists of a combination of: a) partial automatic sprinkler protection; b) smoke detection alarms; c) smoke control; and d) compartmentation or other approved systems.
• Increasing the voting percentage necessary to forgo retrofitting with fire sprinklers and an ELSS from a majority vote to two-thirds (2/3) vote of all voting interests in the association, and removing the limitation upon taking such vote only once every three (3) years.
• Delaying the deadline for when local authorities require completion of retrofitting from January 1, 2020, to January 1, 2023. Also delaying the deadline for associations that have not come into compliance with the requirements of an ELSS or fire sprinkler system, nor voted to forego retrofitting, to initiate an application for a building permit for the required installation from December 31, 2016, to December 31, 2019.
• Requiring condominium or cooperative associations that operate buildings of three (3) stories or more that have not installed a fire sprinkler system in the common areas of the building to mark the building with a sign or symbol approved by the State Fire Marshal (which does not diminish the aesthetic appearance of the building) to warn persons conducting fire control and other emergency operations of the lack of a fire sprinkler system in the common areas.
• Permitting for electronic voting to be used for the vote to forego retrofitting.
• If passed, this law would become effective July 1, 2019.

HB 721 – Emotional Support Animals – § 413.08, Fla. Stat.:

• Clarifying that the rights and responsibilities under this section pertain to both service animals and emotional support animals, as applicable.
• Adding a definition of an emotional support animal.
• Confirming that an individual with a disability who has an emotional support animal or who obtains an emotional support animal is entitled to full and equal access to all housing accommodations under this section, unless the animal poses a direct threat to the safety or health of others or to physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.
• Providing that if an individual’s disability is not readily apparent, a housing accommodation may require written documentation prepared by a health care practitioner, as defined in Section 456.001, or licensed health care practitioner in another state, which verifies the individual has a disability, has been under the practitioner’s care and treatment for such disability, and the animal provides support to alleviate one or more symptoms or effects of the disability.
• Requiring that the written documentation referenced above must be prepared in a format prescribed by the Department of Health and may not be prepared by a health care practitioner whose exclusive service to the individual with a disability is the preparation of the written documentation in exchange for a fee.
• Providing the Department of Health with the authority to adopt rules to administer this section.
• Adding that an individual with a disability is liable for any damage to the premises or another person by his or her service animal or emotional support animal.
• Adding an enforcement mechanism whereby a person who falsifies written documentation for a service or emotional support animal, or otherwise knowingly and willfully misrepresents himself or herself as being qualified to use an emotional support animal, commits a second-degree misdemeanor and must perform thirty (30) hours of community service for an organization that serves individuals with disabilities or other organization in the court’s discretion.
• If passed, this law would become effective July 1, 2019.

HB 1075 – Community Associations – § 514.0115, Fla. Stat.; § 627.714, Fla. Stat.; Chapter 718, Fla. Stat.; Chapter 719, Fla. Stat.; Chapter 720, Fla. Stat.:

• Confirming that swimming pools serving condominiums, cooperatives, and homeowners’ associations, as well as other property associations, which have no more than thirty-two (32) units or parcels and which are not operated as public lodging establishments are exempt from supervision under Chapter 514, Fla. Stat., except with respect to water quality.
• Adding that if a condominium association’s insurance policy for the association does not provide rights for subrogation against the unit owners in the association, an insurance policy issued to an individual unit owner may not provide rights of subrogation against the condominium association.
• With respect to official records of a condominium association, clarifying that bids for work to be performed must be maintained by the association for at least one (1) year after receipt of the bid. Also, expanding the “catch all” category of official records from requiring the association to maintain all other “written records” related to the operation of the association to requiring the association to maintain all other “records” related to the operation of the association.
• Clarifying that a condominium or cooperative association may not require a member to demonstrate any purpose or state any reason for an official records inspection.
• Providing that an association managing a condominium with 150 or more units (which does not contain timeshare units) shall have the option to make certain specified documents available through an application that can be downloaded to a mobile device, or to post such documents on a website. Previously, this section provided only the requirement to post certain documents on a website.
• Clarifying that, for purposes of calculating a condominium association’s board member’s term limit, only service that occurs on or after July 1, 2018, may be used.
• Explaining that written notice of a condominium association’s annual meeting must include an agenda; must be mailed, hand delivered, or electronically transmitted to each unit owner at least 14 days before the annual meeting; and must be posted at least 14 days before the annual meeting. Further explaining that written notice of a members’ meeting, other than an annual meeting, must include an agenda; must be mailed, hand delivered, or electronically transmitted to each unit owner; and be posted in accordance with the minimum period of time set forth in the bylaws, or, if the bylaws are silent, then at least 14 days before the meeting.
• Clarifying that a condominium association shall mail, deliver or electronically transmit a second notice of an election to all unit owners, together with a ballot, no less than 14 days or more than 34 days before the election.
• With regard to transfer fees, confirming a condominium association may not charge an applicant any fees, except the actual costs of any background or screening performed by the association in connection with the sale, mortgage, lease, sublease or other transfer of a unit, unless the association is required to approve such transfer and a fee for such approval is set forth in the declaration, articles or bylaws. Except for the actual costs of any background check or screening performed by the association, any such additional fee may be preset, but may not exceed $100 per applicant, other than husband/wife or parent/dependent child, which are considered one (1) applicant. If a lease or sublease is renewed with the same lessee or sublessee, then a charge may not be made.
• Removing the restriction upon a condominium association employing or contracting with service providers that are owned or operated by a board member, or with any person who has a financial relationship with a board member.
• Expanding the areas within which an owner is permitted to install an electric vehicle charging station from a unit owner’s limited common element parking area only to both the limited common element parking area and an owner’s exclusively designated parking area. Also, clarifying that the electric vehicle charging station installed by an owner must be separately metered or must use an embedded meter.
• With respect to payments for fines in condominium and homeowners’ associations, payment of the fine is due five (5) days after notice of the approved fine is provided to the unit owner, and, if applicable, to any tenant, licensee, or invitee of the unit owner. Previously, the fine was due within five (5) days of the date of the committee meeting at which the fine was approved.
• For homeowners’ associations, providing the association may, by rule, adopt a procedure for conspicuously posting board meeting notices and the agendas on a website. Any rule adopted shall include a requirement that the association send electronic notice in the same manner as is required for a notice of a meeting of the members, which must include a hyperlink to the website where the notice is posted, to members whose e- mail addresses are included in the association’s official records.
• For homeowners’ associations, adding that ballots, sign-in sheets, voting proxies, and all other papers and electronic records relating to voting by parcel owners are official records and must be maintained for at least one (1) year after the election or other voting meeting to which the document relates.
• For homeowners’ associations, referencing the requirement for members and their tenants, guests, and invitees, to comply with the governing documents of the association; however removing reference to compliance with the rules.
• Removing reference to the requirement for homeowners’ associations to mail or deliver notices to parcel owners at the mailing address listed on the property appraiser’s website, and replacing with the requirement to mail or deliver such notices to the address listed in the association’s official records.
• If passed, this law would become effective July 1, 2019.

HB 1153 – Biometric Information Privacy – § 501.172, Fla. Stat.:

• Creates a Section of the Florida Statutes regulating private entities’ use of biometric information, which includes iris or retina scan, fingerprint, voice print, or scan of hand or face geometry. Such information is sometimes used by associations in security protocols and systems.
• Biometric information excludes, among other things, writing samples, written signatures, photographs, biological samples, tattoo descriptions, or other physical descriptions (such as height and weight).
• Requires private entities in possession of biometric information to develop a publicly available written policy establishing a retention schedule and guidelines for permanently destroying biometric information upon satisfaction of the initial purpose for collecting or obtaining such information, or within three (3) years after the individual’s last interaction with the private entity, whichever is first.
• Establishing eligibility qualifications for private entities to have the authority to gather an individual’s biometric information, including disclosure requirements.
• If passed, this law would become effective October 1, 2019.

HB 1259 – Community Associations – § 215.32, Fla. Stat.; § 718.111, Fla. Stat.; § 718.129, Fla. Stat.:

• Exempts Division of Florida Condominiums, Timeshares, and Mobile Homes Trust Fund from provision authorizing Legislature, in General Appropriations Act, to transfer unappropriated cash balances from specified trust funds to Budget Stabilization Fund and General Revenue Fund.
• Amending the criminal penalty for condominium association directors, officers, and managers who knowingly solicit, offer to accept, or accept any service of value of kickback, such that such actions are considered felonies in the third degree.
• Amending the criminal penalty for any director or member of the board or association who knowingly, willfully, and repeatedly (i.e., two (2) or more violations within a 12-month period) violates the requirement to provide access to official records of the association, or who willfully and knowingly refuses to release or produce records with the intent to avoid or escape detention, arrest, trial or other punishment for the commission of a crime, such that such actions are considered a misdemeanor in the second degree.
• Amending the criminal penalty for a person who knowingly or intentionally destroys or defaces accounting records, such that such action is considered a misdemeanor in the first degree.
• Creating a criminal penalty for a person who uses a debit card issued in the name of the association, or billed directly to the association, for any expense that is not a lawful obligation of the association (meaning, not properly preapproved by the board as reflected in meeting minutes or written budget), which action is punishable as theft.
• Creating a new section of the Florida Statutes, § 718.129, Fla. Stat., which pertains to fraudulent voting activities. Such section lists acts that are considered fraudulent voting activities, and which are punishable as felonies in the third degree.
• If passed, this law would become effective October 1, 2019.

SB812 – Vacation Rentals – § 212.18, Fla. Stat.; Chapter 509, Fla. Stat.:

• Requiring a person engaged in leasing or renting a transient public lodging establishment, as defined in §509.013, Fla. Stat., to display their valid certificate of registration number in any rental listing or advertisement for the property. A violation of this requirement would subject the lessor to civil penalties.
• Confirming that if a rental unit, in whole or in part, is advertised to guests for transient occupancy via a hosting platform, it shall be deemed to be regularly rented to transients.
• Re-defining terms, including “transient occupancy,” and “nontransient occupancy.”
• Revising and expanding the Division of Hotels and Restaurants’ inspection authority of vacation rentals.
• Clarifying that while a local government may not regulate the frequency or duration of rental vacation rentals, a local government may regulate certain activities that arise when the property is used as a vacation rental.
• Requiring a vacation rental operator to display the vacation rental’s license number, and, if the operator is offering for rent the whole or any portion of a unit or dwelling through a rental listing or advertisement, the operator must also display the physical address of the property, including any unit designation.
• Creating §509.23, Fla. Stat., which governs hosting platforms for transient public lodging establishments. Creating restrictions upon hosting platforms, such as requiring the hosting platforms to register with the Division of Hotels and Restaurants in order to advertise for rent, facilitate a guest’s reservation, or collect payments for the reservation of a public lodging establishment, and requiring the hosting platform to maintain certain records to be audited by the Division of Hotels and Restaurants annually. A violation of the restrictions would result in fines and suspension, revocation, or refusal of a registration issued to the hosting platform.
• Creating an amnesty program through the Department of Revenue for unpaid taxes, penalties, and interest for persons who engage in leasing, renting or granting licenses to use a vacation rental, subject to certain conditions, including that payment for the vacation rental must have been made before October 1, 2019, and the person who collects rental payments must apply for such amnesty by October 1, 2019.
• If passed, this law would become effective October 1, 2019.

SB824 – Vacation Rentals – § 509.032, Fla. Stat.; § 509.241, Fla. Stat.:

• Clarifying that property owners who choose to use their property as a vacation rental have constitutionally-protected property rights, that vacation rentals play a significant unique role in Florida’s tourism industry different from other public lodging establishments, and vacation rentals are residential in nature and, thus, are permitted in residential neighborhoods.
• Confirming that the regulation of vacation rentals, including inspection, licensing, and occupancy limits, is expressly preempted to the state.
• Providing that local laws and ordinances may regulate activities that arise when a property is used as a vacation rental if the law applies uniformly to all residential properties, but local laws and ordinances may not prohibit rentals, impose occupancy limits, regulate frequency or duration of rentals, or require or allow inspection or licensing of vacation rentals.
• Requiring that each person who applies for a vacation rental license to provide the name, address, telephone number, and email address of the person who may be contacted by the Division of Hotels and Restaurants when a complaint is reported. Such information shall be made available to the public on the Division of Hotels and Restaurants’ website.
• If passed, this law would become effective July 1, 2019.

SB 908 – Firesafety Systems – § 553.792, Fla. Stat.; Chapter 633, Fla. Stat.; § 718.112, Fla. Stat.:

• Requiring, beginning on October 1, 2019, that a uniform fire alarm permit application, along with certain other information, be used and submitted to the local enforcement agency, along with required drawings, plans and supporting documents, for any project requiring a fire alarm permit. Further providing certain procedural fire alarm permit application restrictions, such as the means to submit the application, a signature requirement, and a form application. For repairs to an existing fire alarm system previously permitted by the local enforcement agency, the contractor may begin repairs upon filing the fire alarm permit application.
• Adding that a condominium association must ensure reasonable compliance with the Florida Fire Prevention Code, and defining the meaning of “reasonable compliance.”
• Clarifying that a condominium association operating a high-rise building (as defined in the Florida Fire Prevention Code) must either retrofit the building with a fire sprinkler system or engineered life safety system by January 1, 2024.
• Requiring the state Fire Marshal to issue a data call to all local fire officials to collect data regarding high-rise condominiums which have not retrofitted with a fire sprinkler system or engineered life safety system by July 1, 2019. By July 1, 2020, all data must be received and compiled into a report by city and county, and by September 1, 2020, the report must be sent to the Governor, the President of the Senate, and the Speaker of the House of Representatives.
• If passed, this law would become effective immediately upon becoming law.

SB1110 – Purchase of Condominium Units – § 718.111, Fla. Stat.:

• Prohibiting a business entity owned by a board member, manager or management company, or in which a board member, manager or management company has an ownership interest, from purchasing a unit at a foreclosure sale.
• Board members and managers, individually, and management companies, are also prohibited from purchasing a unit at a foreclosure sale.
• If passed, this law would become effective July 1, 2019.

SB 1152 – Community Association Safety Systems – § 718.112, Fla. Stat.; § 719.1055, Fla. Stat.:

• Exempting from the requirement to retrofit a condominium or cooperative building with fire sprinklers or an engineered life safety system a building that is seventy-five (75) feet or less in height, or a vacation rental as described in Section 509.242(1)(c), Fla. Stat.
• Clarifying that a condominium or cooperative association or a unit owner is not obligated to retrofit a building greater than seventy-five (75) feet in height if the unit owners have opted to hold a vote and have voted to forego such retrofitting by a majority of all voting interests in the affected condominium.
• Providing that a vote to forego required retrofitting in a condominium or cooperative association may be obtained by electronic voting, and if the notice to the unit owners is not provided timely to the unit owners, then it does not invalidate an otherwise valid opt-out vote if notice of the results is provided to the owners.
• Adding if there has been a previous vote to forego retrofitting in a condominium or cooperative association, then a subsequent vote to require retrofitting may be conducted at a special meeting of the unit owners, called by a petition of at least 10 percent of the voting interests or by a majority of the board of directors.
• Confirming the local authority having jurisdiction may not require completion of retrofitting in a condominium or cooperative association with a fire sprinkler system or other engineered life safety system before January 1, 2022. Also, by December 31, 2019, an association that operated a residential condominium that is not in compliance with the requirements for a fire sprinkler system or other engineered life safety system shall initiate an application for a building permit for the required installation.
• If passed, this law would become effective July 1, 2019.

SB 1196 – Vacation Rentals – Chapter 509, Fla. Stat.:

• Defining “booking transaction,” “Unit,” and “hosting platform” for vacation rentals.
• Clarifying that transient public lodging establishments are rented to guests for less than thirty (30) days or one (1) calendar month.
• Requiring for a display of a license for public food service establishments and operators of vacations rentals or units in a transient occupancy. Also requiring a nontransient apartment used for transient occupancy to display its license number in all advertising for such rentals.
• Creating Section 509.243, Fla. Stat., providing restrictions upon hosting platforms, including the requirement to register with the Division of Hotels and Restaurants, maintain certain records, and to develop and issue a report to the Division of Hotels and Restaurants listing each rental offered for transient occupancy on its platform.
• Listing occurrences that entitle the Division of Hotels and Restaurants to revoke or refuse to issue or renew a vacation rental license, including that the operation of the premises as a vacation rental violates the terms of an applicable lease or property restriction (including Chapters 718, 719, and 720, Florida Statutes), or that the operation of the premises as a vacation rental violates local ordinances or laws.
• If passed, this law would become effective January 1, 2020.

SB 1246 – Construction Defects – Chapter 558, Fla. Stat.:

• Revising the purpose of the Chapter as an effective and cost-efficient method to resolve construction disputes, rather than an alternative method to resolve construction disputes. Also adding that the dispute resolution mechanism provides the claimant and the contractor (as well as subcontractors, suppliers, or design professionals) with the opportunity to resolve the claim through meaningful arbitration, although clarifying that this Chapter does not preclude resolution by settlement.
• Creating special requirements for construction defects in Section 558.0045, Fla. Stat. Specifically, among other requirements, once all parties have been joined in any action involving construction defects, but not later than one hundred eighty (180) days after the action is brought, the court shall require the parties to take part in nonbinding arbitration conducted in accordance with Chapter 682, Fla. Stat. If the arbitrator’s decision is in favor of the claimant, the award must include a detailed description of the nature of the defect and monetary awarded against each party. Any party to the arbitration may agree in writing to be bound by the award within thirty (30) days after the arbitration award; if a party does not agree, such party may proceed with civil action on the unresolved portions of the claim.
• If passed, this law would become effective July 1, 2019.

SB 610 – Community Associations – § 718.111, Fla. Stat.; § 718.129, Fla. Stat.:

• Amending criminal penalty for condominium association directors, officers, and managers who knowingly solicit, offer to accept, or accept any service of value or kickback, such that such actions are considered felonies in the third degree.
• Adding to the list of official records to be maintained by a condominium association all bank statements, canceled checks, credit card statements, and all invoices, transaction receipts, deposit slips, or other underlying documentation that substantiates any receipt or expenditure of funds by the association.
• Providing that condominium association official records must be maintained in an organized manner that facilitates inspection of the records by a unit owner, and that the obligation to maintain official records means there is an obligation to obtain and recreate those records to the fullest extent possible in the event the records are lost, destroyed or otherwise unavailable.
• Clarifying that the rebuttable presumption that the association willfully failed to comply with the records inspection procedures, and related damages, applies when the association failed to provide records within 10 working days after receipt of a written request that complies with the association’s document inspection rule.
• Adding that if the requested records are posted on an association’s website, the association may fulfill its obligations under Section 718.111, Fla. Stat. pertaining to records inspections by directing to the website all persons authorized to request access to official records.
• Amending criminal penalty for any director or member of the board or association who knowingly, willfully, and repeatedly (i.e., two (2) or more violations within a 12-month period) violates the requirement to provide access to official records of the association, such that such actions are considered a misdemeanor in the second degree.
• Amending criminal penalty for a person who knowingly or intentionally destroys or defaces accounting records, such that such action is considered a misdemeanor in the first degree.
• Amending criminal penalty for any person who willfully and knowingly refuses to release or produce records with the intent to avoid or escape detention, arrest, trial or other punishment for the commission of a crime, such that such actions are considered a felony in the third degree.
• Requiring, by January 1, 2021, all condominium associations managing twenty-five (25) or more units, not including timeshare units, to post on its website digital copies of all official records subject to inspection by tenants or unit owners or their authorized representatives.
• Creating a criminal penalty for a person who uses a debit card issued in the name of the association, or billed directly to the association, for any expense that is not a lawful obligation of the association (meaning, not properly preapproved by the board as reflected in meeting minutes or written budget), which action is punishable as theft.
• Creating a new section of the Florida Statutes, § 718.129, Fla. Stat., which pertains to fraudulent voting activities. Such section lists acts that are considered fraudulent voting activities, and which are punishable as felonies in the third degree.
• If passed, this law would become effective October 1, 2019.

The 2019 Legislative Session is expected to end on May 3, 2019. Generally, if the legislature is in session and has sent the Governor a bill, he/she has seven days to consider the bill while the legislature remains in session. If the bill is received after the legislature has adjourned “sine die” (the 60-day session has ended), the Governor has 15 days to consider the bill. The Governor may take one of three actions: sign the bill into law, allow the bill to become law without his signature, or veto the bill. If the Governor vetoes the bill, the legislature may override his/her veto by a 2/3 vote of the legislature during the next session.