On July 8, 2012, the Association’s attorney sent a Notice to the unit owners of a violations committee meeting “regarding the Association’s intent to levy fines” due to their dog’s frequent barking. The notice stated the hearing was to be on July 16. On July 16, the violations Committee met and imposed two fines in the amount of $100.00 each per day for 10 days for a continuing violation, for a total of $2,000.00. The owners did not attend the hearing and then received a letter from the association’s attorney that they owed $2,000.00 to the Association. The owners then retained me to represent them.
Section 718.303(3)(b) of Florida Statutes states: “A fine or suspension may not be imposed unless the association first provides at least 14 days written notice and an opportunity for a hearing to the unit owner …” In a letter to the attorney for the Association, I wrote that the fines were illegal and unenforceable because they were imposed without first giving at least 14 days written notice. I demanded that the fines be rescinded immediately, and if they were not, a petition for arbitration would be filed. The association’s attorney responded that the fines were proper, so an arbitration petition was soon filed.
Not surprisingly, after the Division of Condominiums accepted jurisdiction of the dispute and ordered the Association to answer in writing, the Association changed its position and acknowledged that the fines were not legal and would be rescinded. The fines were imposed in violation of the plain wording of the statute, making the association’s position, in my view, indefensible.
Soon thereafter, I filed a motion to award attorney fees and costs so that my clients could recover their attorney fees and costs from the Association. In arbitration disputes, the prevailing party is entitled to recover its costs and reasonably attorney fees from the other party. The dispute was soon settled with the Association paying my client’s attorney fees and costs. (I wonder if the association’s attorney waived the fees he charged his client for such improper advice!). Continuing to attempt to justify the fines, or contest the right to recover reasonable attorney fees, would have cost the Association even more for the attorney fees that they would eventually have to pay to the unit owners, not to mention their own attorney fees. The association learned an expensive lesson in this dispute.
PS – November 3, 2015. In 2015, the Florida Legislature amended Sections 718.303(3) and 720.305(2) of the condominium and homeowner association statutes, respectively. Now effective, these sections allow the Association to impose a monetary fine on a unit owner or suspend a right to use certain common elements for a violation of any provisions of the association documents. The amended statutes state that a fine or suspension may be “levied by the board”, but the fine or suspension “may not be imposed unless the board first provides 14 days written notice and an opportunity for a hearing … ” The hearing is still in front of an independent Violations Committee where the Owner may offer a defense to the fine or suspension. But, the statutes were also amended to state: “The role of the committee is limited to determining whether to confirm or reject the fine or suspension levied by the board. If the committee does not agree, the fine or suspension may not be imposed.”
Thus, the Board first “levies” the fine or suspension. This must be done at a regularly scheduled and noticed Board meeting. After the Violation hearing, if the Violation Committee “confirms” the fine or suspension, the board may “impose” the fine.
Please note: It is not stated in the statute whether the Board that decides to “impose” a fine or suspension must do so at another regular Board meeting after the Committee confirms it. There is no harm to do so, but as an alternative in my opinion, the Board can state at its first meeting that the fine or suspension being levied will be deemed to be imposed automatically if the Violations Committee confirms it.
PS. July, 2018. In a 2017 case, an appeals Court decided that a fine imposed after notice of the hearing was sent to the owner only 13 days before the hearing was illegal because the law requires “at least 14 days” notice. The fine was illegal and unenforceable even though the owner received the notice well before the hearing and did not attend. Requirements to impose a fine must be strictly met.
DISCLAIMER: THE FOREGOING ARTICLE IS NOT LEGAL ADVICE AND IS FOR INFORMATION PURPOSES ONLY. YOUR READING OF THIS ARTICLE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP WHATSOEVER. IF YOU ARE CONSIDERING ANY ACTION WITH LEGAL CONSEQUENCES, YOU SHOULD FIRST CONSULT WITH AN ATTORNEY OF YOUR CHOOSING.