Interpretation Question

Florida Statute 720.305.2 says:
(2) If the governing documents so provide, an association may suspend, for a reasonable period of time, the rights of a member or a member's tenants, guests, or invitees, or both, to use common areas and facilities and may levy reasonable fines, not to exceed $100 per violation, against any member or any tenant, guest, or invitee. A fine may be levied on the basis of each day of a continuing violation, with a single notice and opportunity for hearing, except that no such fine shall exceed $1,000 in the aggregate unless otherwise provided in the governing documents.

(a) A fine or suspension may not be imposed without notice of at least 14 days to the person sought to be fined or suspended and an opportunity for a hearing before a committee of at least three members appointed by the board who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee. If the committee, by majority vote, does not approve a proposed fine or suspension, it may not be imposed.

(b) The requirements of this subsection do not apply to the imposition of suspensions or fines upon any member because of the failure of the member to pay assessments or other charges when due if such action is authorized by the governing documents.

(c) Suspension of common-area-use rights shall not impair the right of an owner or tenant of a parcel to have vehicular and pedestrian ingress to and egress from the parcel, including, but not limited to, the right to park.
Does the 14 days notice mean 14 days for each incident that occurs? Does it mean that you can't enforce for 14 days after the rules and fine schedule are published? Does it mean that you get 14 days notice for the first offense only? If a fine requires 14 days notice per incident each time then parking in the street or leaving garbage out days early is unenforceable. The car would surely be moved and the garbage would be brought back before the 14 days elapsed.

Does the opportunity for a hearing before an appeals committee not related to the board mean that the board can not be first place of the first appeal? Also does this mean that the board can not rule on a fine or covenant violation first? I was told that an opportunity exists they just have to request it but that the board can handle anyone that doesn't specifically request it. What do you think?

Right now, I am planning on the Association keeping a record of eligible owners (on the deed) who wish to participate on the appeals board and then get three of them together each time it is needed. I would rather not have a standing appeals board in case we get people who won't enforce the rules. I would rather try each owner out and then decide based on past rulings if they are fair and invite them to participate again. This also can be used to involve more of the community by having members take turns ruling on issues that effect them; giving them a say in their community.

These were questions at the last board meeting and I am trying to get better clarification on them.

BradD, I think the Florida Statute you quoted needs further clarification within the HOAs controlling documents. To answer your questions, By-laws or Rules should include information on Hearings. We suggest they include "when there is more than one violation in any consecutive 12 month period an automatic fine shall be levied without another Hearing. Concerning your example of repeat short term violations it is the Notice of Hearing which must be provided at least 14 days in advance. So the Hearing committee can still consider fining the violators; but you must give them a Notice of Hearing to provide them an opportunity for the Hearing prior to any fine.

I do not prefer constantly rotating the members of the Hearing Committee. Also, I recommend having no Board members on that committee so there is the opportunity for appeal to the Board. The same logic can be applied to the ARC. An exception is when the association does not have sufficient volunteers to maintain separation between committees.

Roger, we have 50 houses and are self managed. About 8 to 10 people show up to board meetings, of those only half volunteer for anything. We formed a covenant enforcement committee with volunteers from the community only to have the non-board members stop responding to emails and not doing anything.

One of the provisions in the Covenant Enforcement Policy is that someone can report another homeowner as long as they fill out a form, sign and date it. It then becomes an association record and may be mentioned in a board meeting and therefore the minutes. They can report things, just not anonymously. The covenant enforcement committee then investigates and rules if there is a violation or not. Certain things happen at times other then when the committee is doing a walkthrough, like late at night, early in the morning, etc...

BradD2 I am also confused on the interpretation of this statue. what is the definition of a continuing violation? and does this mean that the person has 14 days to correct before they can be fined. I understand it to mean-a fine is imposed for a violation and the person has 14 days in which to request an appeal hearing. I'm also in Florida and any input will be appreciated.

Roger:

I have a question in your statement that you do not advise having a board member on the covenants so the Owner can appeal. Why is that? I actually recommend the complete opposite, that they do not have a covenants, so that the Owner cannot appeal the decision, and the board's decision is final.

By the time an Owner has received 1,2 or 3 letters asking them to come into complaince, then a hearing is held and a decision made, fines assessed the process can be lenghtly.

If the hearing is heard by a covenants then the Owner can appeal their decision and you are back to having the board make the final and just more time has lapsed.

I was just curious as to why you would recommend the first way of doing it?

Gloria and Roger, in Florida it is a requirement that an appeals board exist that is made up of at least three homeowners who are not on the board or related to anyone on the board.