Sure, you’ve heard of Chapter 718 of the Florida Statutes, that seemingly unending document that governs condominium associations. But there is one other set of rules out there that Board members frequently overlook: The Florida Administrative Code (f.k.a. FAC or F.A.C.). Heard of it? Many Board members have not and yet it is essential to the proper operation of a Florida condominium association.
The F.A.C. combines all rules promulgated by state regulatory agencies. For the purposes of Florida condominium associations, the F.A.C. expands on the guidance provided in Chapter 718 of the Florida Statutes relating to record keeping, financial statement preparation, Board member elections, and other operational issues.
The F.A.C. should be read in conjunction with the Florida Statutes. Failure to comply with the Florida Statutes and the F.A.C. can lead to action by the Department of Business and Professional Regulation (DBPR) including fines of up to $5,000 per violation.
The full FAC can be found at www.flrules.org.
F.A.C. chapters 61B-15 – 61B-25 along with 61B-45 and 61B-50 provide specific guidance on many important condominium topics that are addressed more generally in Chapter 718. For unit owner-controlled (versus developer-controlled) condominiums, the most relevant sections are 61B-21, -22 and -23.
Chapter 61B-21 discusses the actions the DBPR will take in response to complaints submitted by unit owners surrounding an association’s violation of the F.A.C. and/ or Florida Statutes. Violations are separated into minor and major violations; a list of violations is included within the code. Initial minor or major violations are generally handled through communication with the association, warning letters, and distribution of educational materials relevant to the alleged violation. In circumstances where minor or major violations are repeated or an association fails to resolve an initial violation, an investigator from DBPR may be assigned to the case.
The F.A.C. dictates that the DBPR may levy fines against an association of up to $5,000 per violation. Generally fines are determined based on a price per unit. For minor violations, the penalty will range from $1-$5 per unit, up to $2,500 per violation. For major violations, the penalty will range from $6-$20 per unit, up to $5,000 per violation. The total amount ultimately fined may be influenced by a variety of aggravating or mitigating factors listed in the F.A.C. Aggravating factors include substantial harm or financial loss to homeowners; association delay in taking corrective action; and past violations. Mitigating factors include reliance on written expert counsel***; no substantial harm or financial loss to homeowners; and association cooperativeness with the DBPR during the investigation.
***It is important to note here that reliance on a licensed community association manager (LCAM) is not a defense for failing to comply with the F.A.C. or Florida Statutes. It is very important that Board members review the actions of their LCAM to ensure compliance.
Chapter 61B-22 relates to financial and accounting requirements, including budgeting and reserve requirements. This section outlines all the required components of the annual budget; the proper treatment of common expense guarantees; reserve calculations (using both the component and pooled methods); the timing and handling of reserve fund contributions; procedures for waiving or reducing reserve contributions; and the specific requirements of the association’s year-end financial reporting.
Chapter 61B-23 discusses Board meetings and the Board’s fiduciary duty; rules relating to the video taping of Board meetings; the requirement that each condominium pay a $4/ unit annual fee to the DBPR due by January 1st; voting to forego the retrofitting of fire and life safety systems; the use and form of limited proxies; the required Frequently Asked Questions and Answers sheet; the items included in the association’s official records; Board elections/ recalls/ vacancies; and the electronic transmission of notices.
We will review 61B-22 and 61B-23 in more detail in future posts. For now, don’t forget to read the code.
As always, please feel free to reach out with questions.
Emily Shaw is a condominium homeowner in Tampa, Florida and a Director of VERA Property Management, a full-service community association management and consulting firm serving the Tampa Bay Area.