Rule 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. |Insufficient or incomplete accounting records. | | |61B-22.002, F.A.C. | | |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. |Improper calculation of reserve requirements. | | |61B-22.005(3), (5), F.A.C. | | |Commingle |718.111(14), F.S. |Commingling association funds with non-association funds. | |Commingle |718.111(14), F.S. |Commingling reserve funds with operating funds. | | |61B-22.005(2), F.A.C. | | |Common Expenses |718.103(9), 718.115(1), F.S. |Using association funds for other than common expenses. | | |61B-23.003(3), F.A.C. | | |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. |Failure to hold an annual election. | | |61B-23.0021(2), F.A.C. | | |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. |Failure to provide, or timely provide, first notice of election. | | |61B-23.0021(4), F.A.C. | | |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. |Failure to provide, or timely provide, second notice of election or omitting | | |61B-23.0021(7), (8), F.A.C. |ballots, envelopes, or candidate information sheets. | |Elections |718.112(2)(d)4., F.S. |Ballot included a candidate who is ineligible. Ballot not including an eligible | | |61B-23.0021(5), F.A.C. |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. |Association altered or edited candidate-information sheets. | | |61B-23.0021(7), F.A.C. | | |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), |Counting ineligible ballots. | | |F.A.C. | | |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. |Failure of outgoing board or committee member or relinquish all official records | | |718.501(1)(d)6., F.S. |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 |Failure to make significant reserve fund disclosures in annual financial | | |61B-22.006(6), F.A.C. |statements or annual financial report. | |Reporting |61B-22.006(3)(a)7., and |Failure to include converter reserve disclosures in the annual financial | | |61B-22.006(6), F.A.C. |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 |Failure to include the special assessments disclosures in the annual financial | | |61B-22.006(6)(c), F.A.C. |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. |Annual financial report not prepared on a cash basis. | | |61B-22.006(6)(a), F.A.C. | | |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 |Annual financial statements or annual financial report does not disclose revenues | | |61B-22.006(6)(d), F.A.C. |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. |Failure to fund reserves in a timely manner. Failure to fully fund reserves. | | |61B-22.005(6), F.A.C. | | |Reserves |718.112(2)(f)2., F.S. |Failure to follow proper method to waive or reduce reserve funding. | | |61B-22.005(8), F.A.C. | | |Reserves |718.112(2)(f)3., F.S. |Using reserve funds for other purposes without proper unit owner approval. | | |61B-22.005(7), F.A.C. | | |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. Rulemaking Authority 718.501(1)(d)6., (f) FS. Law Implemented 718.501(1)(d)6. FS. History–New 6-4-98, Amended 9-3-13, 12-5-18.