Business & Professional Regulation › Division of Florida Condominiums, Timeshares and Mobile Homes › Chapter 61B-78 · Association Fee And Mailing Address; Cooperative Resolution Guidelines For Unit Owner Controlled Associations

Rule 61B-78.004. Enforcement Resolution and Civil Penalties

Amended February 19, 2015 (current)

(1) The division will seek compliance through an enforcement resolution for repeated minor or major violations, or for the failure to correct or address a violation or provide unit owner redress as requested by the division. If the division issues a notice to show cause, it will notify the association of its right to a hearing under Chapter 120, F.S. The guidelines in this rule section are based upon a single count violation of each provision listed. 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 these rules shall limit the ability of the division to informally dispose of administrative actions or complaints by stipulation, settlement agreement, or consent order.

(2) General Provisions.

(a) Rule Not All-Inclusive. This rule section contains illustrative violations. It does not, and is not intended to, encompass all possible violations of statute or division rule that might be committed by an association. The absence of any violation from this rule section shall in no way 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 section, the penalty will be determined by consideration of:

1. The closest analogous violation, if any, that is listed in this rule section; and

2. The mitigating or aggravating factors listed in this rule section.

(b) Violations Included. This rule section applies to all statutory and rule violations subject to a penalty authorized by Chapter 719, F.S.

(c) Rule Establishes Norm. These guidelines do not supersede the division’s authority to order an association to cease and desist from any unlawful practice, or order other affirmative action in situations where the imposition of administrative penalties is not adequate. For example, notwithstanding the specification of relatively smaller penalties for particular violations, the division will suspend the imposition of a penalty and impose other remedies where aggravating or mitigating factors warrant it. If an enforcement resolution is utilized, the total penalty to be assessed shall be calculated according to these guidelines or $100, whichever amount is greater.

(d) Description of Violations. Although the violations in Rule 61B-78.004, F.A.C., include specific references to statutes and administrative rules, the violations are described in general language and are not necessarily stated in the same language that would be used to formally allege a violation in a specific case. If any statutory or rule citation in Rule 61B-78.004, F.A.C., is changed, then the use of the previous statutory citation will not invalidate this rule section.

(3) Aggravating and Mitigating Factors. The division will consider aggravating and mitigating factors, which will reduce or increase the penalty amounts within the specified range, in determining penalties for both minor and major violations listed in this rule section. No aggravating factors will be applied to increase a penalty for a single violation above the statutory maximum of $5,000. The factors shall be applied against each single count of the listed violation.

(a) Aggravating Factors: |No. |Description | |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, including such action resulting in an enforcement resolution as detailed in Rule 61B-78.004, F.A.C., or | | |Section 719.501, F.S. | |5. |The violation caused substantial harm to unit owners, other persons, or entities. | |6. |The violation occurred for a long period of time. | |7. |The violation was repeated within 2 years. | |8. |The association impeded the division’s investigation or authority. |

(b) Mitigating Factors: |No. |Description | |1. |The violation or harm was related to a natural or manmade disaster(s). | |2. |Financial hardship to respondent. | |3. |The violation caused no harm to unit owners, other persons, or entities. | |4. |The violation occurred despite reliance on written professional or expert counsel advice. | |5. |The association took affirmative or corrective action before it received the division’s written notification of the violation. | |6. |The association expeditiously took affirmative or corrective action after it received the division’s written notification of the violation. | |7. |The association cooperated with the division during the investigation. |

(4) The provisions of this rule section shall not be construed so as to prohibit or limit any other civil or criminal prosecution that may be brought.

(5) The imposition of a penalty does not preclude the division from imposing additional sanctions or remedies provided under Chapter 719, F.S.

(6) In addition to the penalties established in this rule section, 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. Additionally, the division reserves the right to seek to recover any costs, penalties, attorney’s fees, court costs, service fees, collection costs, and damages imposed by law if an association submits a bad check to the division.

(7) Penalties.