No compliance/hearing committee

Our newly-elected Board of Directors has decided to do away with a heAring cmmittee and says all violations issues will now be handled by the Property Manager. Isn't this against Florida Statutes? It violates our governing documents.

Thanks for the clarification. But our new Board sys they are "doing away with the hearing committee," and all matters beyond the initial violation notice will ALSO be handled by the Property Manager.

Yes, Kerry.
The new Board wants no part of the process because they maintain that if they initiate a fine and the Hearing Committee upholds it, the homeowner goes back to the BOARD to appeal, and therefore the BOARD is acting as judge and jury. Now, with the upgraded process, if the Hearing Committee upholds the issuance of the fine, shouldn’t that be the end of the process?

I don't think there is any appeal process once the committee upholds the fine. From FS 720.305

"A fine or suspension may not be imposed by the board of administration without at least 14 days’ notice 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."

and

"The role of the committee is limited to determining whether to confirm or reject the fine or suspension levied by the board."

I imagine an HOA's governing documents could provide for some sort of appeals process but it's not mandated by state law. Once the fining committee confirms the board's proposed fine, it's a done deal.

Since the Board appoints the Committee, I tend to think the Board can override the committee, regardless of whether there is a formal appeal. As for what the law says: Case law is clear nationwide that HOAs must try to offer due process, especially when the stakes are high. High stakes include things such as lots of money being involved or trampling on privacy.

The board cannot override the fine committee. This is written in our Florida Statutes and it is not something that is left to the board's discretion.

Oops, I had that scenario backwards: the owner whose fine was confirmed by the committee would be the one who might claim selective enforcement, not the other way around.

We're struggling with this now. A committee is working on amending our docs to give the board the power to levy fines in accordance with the statute. As currently written, the word "fine" does not appear in any of our documents and there are a number of Florida attorneys who are of the opinion that unless the board has that power bestowed by the governing documents, fines may not be levied regardless of what the statute says.

Out of 100 homes, 5 are owned in absentia, 12 are seasonal "snowbirds" who aren't here 7 months out of the year, 16 are elderly original owners in their 80s and 90s who don't get out much, and we have a board of 7. That leaves 60 available owners (7 months out of the year) able to serve on a fining committee. The informal consensus is that it would be difficult, if not impossible, to find 3 people willing to sit on a fining committee.

The hope is that we wouldn't even need to issue a lot of fines. The threat of a fine after a friendly warning would possibly be enough to engender compliance; and that, after all, is the purpose of fines. Not punishment. An actual fine or two would go a long way towards converting most of the stubborn holdouts.

The bottom line is if the board - and any fining committees - aren't serious about enforcing violations then we might as well throw out many of our covenant restrictions and rules & regulations.

Back to the OP's question, an HOA has to comply with FS 720.305. Its property manager should know that. The PM compiles violations from complaining homeowners and/or direct observation and provides those to the board. The board considers the complaints and any evidence and levies fines (or not) based on the available evidence. The fining committee holds a hearing and votes to confirm or reject the fine.

The board cannot get shed its responsibility completely by handing the entire process off to the property manageer.

Except maybe in Florida where a fining committee's opinion can override a board's stated desire to levy a fine against an owner. The board, of course, appoints the fining committee and may exert influence on its decision by choosing the committee members carefully.

Geno posted: As currently written, the word "fine" does not appear in any of our documents and there are a number of Florida attorneys who are of the opinion that unless the board has that power bestowed by the governing documents, fines may not be levied regardless of what the statute says.

That is correct and as I understand it from my attorney. The contract between the Owners and Association must contain an express authority to "fine". The HOA statute cannot override this because the statute would impair the contractual property rights of owners. This impairment is forbidden by the FL Constitution.

Our Declaration, like yours, contains no authority for the HOA to fine Members. It has been voted on twice over the years and all votes have defeated an amendment to fine. We have no fining in our HOA.

Rules violations are met with property damage (cross burning on the front lawn), intimidation (lawsuit), public defamation (naming the violator at board meetings), hazing (repeated flyby visits in cars and golf carts),and shunning (avoiding violator at activities).

Welcome to life in a FL HOA.

Geno ... Can you please post or give me the link to the full text of that statute. I find it hard to believe that any committee could overturn any entity who is at the top of the food chain. If that was the case then the Board could not be held ultimately liable in a dispute.

(b) A fine or suspension may not be imposed by the board of administration without at least 14 days’ notice 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. The role of the committee is limited to determining whether to confirm or reject the fine or suspension levied by the board. If the board of administration imposes a fine or suspension, the association must provide written notice of such fine or suspension by mail or hand delivery to the parcel owner and, if applicable, to any tenant, licensee, or invitee of the parcel owner.

I see what the State Law is about ... essentially it is a small jury of peers. However, those peers cannot be officers, directors, employees, or relatives who might be biased in their opinion (in favor of what the Board has imposed). Interesting new law ....

This has pros in the fact it could be considered similar to arbitration (but have more participate similar to jury) vs one arbitrator. I see some very good over all pros in this and because of the State Mandating would relieve the Board of liability.

@JanetB2

I would Very carefully consider that course of action. As a cautionary note, Committee members are not indemnified by the HOA for making a decision which can harm individuals. Our HOA, in desparation to try to set up a fining Committee using FS720 as a basis, was rebutted successfully by owner-committee members who realized that they could be held legally accountable for a fining decision if disputed by another owner. Their only safe option would be to strike down ALL fines levied by the Board.

They all quit.

Involving other Board members in different HOA's could have disastrous unintended consequences. As you experienced, Owners are not in a very good mood to be guided by neighbors trying to control behavior and fine for non-compliance.

I doubt that any D & O insurance policy would indemnify your HOA for bringing in an independent, outside HOA jury. And an enterprising lawyer for the homeowner would have a field day with both HOA's!

GwenG ... I am not talking about anything binding. It would simply be a discussion similar to this website. Sometimes others outside an area hearing both sides and just giving their opinion can help a mole hill from becoming a mountain.

@JanetB2: An informal chat about a violation among HOA's? If I were a violator subjected to an airing-out debate inviting a neighboring HOA, I would object on the basis of privacy, for starters.

@Janet, we will have to agree to disagree. The board brings its complaint on behalf of the HOA owners. Regardless of the nature of the "issue", it is not the business of other HOA's to be invited to discuss another HOA's business and weigh in on issues not concerned with its own HOA.

Your assertion that the only privacy issue to be offered a homeowner is "payment" issues does not make any sense, considering that an HOA lien on a homeowner for non-payment is a public record. Also, non-payment is not a behavioral compliance issue related to property use.

I don't know what your statutes allow you to do, but your scenario is way outside the statutory due process in Florida. Unless specifically laid out by statute, an HOA would be "wingin' it" to pursue such a chatty plan. If I were involved in any issue, I would definately NOT attend any discussion or hearing with uninvolved third parties unless I was protected by statute.

@JanetB2: Watch for it! My Spout! Yes, I HAVE been in a lawsuit and prevailed in 2015 against my HOA. I got all my costs and attorneys fees back-in excess of $10,000. It was not, however, about any rules/covenant infraction so maybe it doesn't count.

Regardless of whether your cooked up HOA community hearing is binding or not, and regardless of the supposed "voluntariness" on the part of the players, it is a risky plan to circumvent what is already laid out in law with your own dreamed up Plan B. It opens up the participating HOA's to involvement in a legal dispute with both your HOA and your HOA owner, it unfairly gangs up on a homeowner who would reasonably expect the views of a neighboring HOA to be similar to his own HOA. An owner would be foolish to agree. It exposes your HOA to "writing the rules" and being the cause of unintended consequences of subjecting an owner to public villification and "knowingly and willfully" violating your state law.

If you think that your statutes are inadequate for your HOA to proceed within laws already enacted, and feel you must pursue through another homemade plan to feel secure and reinforce your position, then by all means go for it. If you can give your board solid reasons for this, and also convince neighboring boards that such a non-binding, voluntary meet up to help you solve your problems is the way to go and worth them taking another 2-3 hours of their personal time, then good luck to you. You asked what others thought and that is my opinion and rationale.

The lawsuit which could result from such a Chatty Plan B would be much more complicated and expensive than $10,000.

@JanetB2: At no time did I say that a contributor should not ask questions. This is the place for getting other viewpoints, opinions and reality testing.

And my opinion is that other HOA's should not be invited to participate, on any level, with your HOA's rules and restrictions management, no matter what the perceived benefit might be. If your HOA is unsure of its authority and competency to administer hearings, perhaps it should consider not enforcing rules with fines.

Your communicative and collaborative approach could actually be an HOA "best practices" ie gain compliance with infractions voluntarily with reason and goodwill. However, it should not involve outside third parties and should be memorialized in an SOP with board approval. However, if your HOA has punitive measures provided in its Covenants, the board will be compelled, by fiduciary duty, to use that method if communication and reason do not have the desired outcome.

So far, no one has come forward in support of your plan and that should tell you something. I do believe that most would advise you to read your state statute and follow it with regard to fines and hearings. Most states have laws for self-governed communities which address fines and hearings. The statute is there for good reason and will protect your association from well-meaning but hapless do-it-yourselfers who inadvertantly bring a lawsuit to an HOA for going outside statutory guidelines and controls.

@Janet: There is one huge difference--Anonymity. Here, there is anonymity which protects the privacy of the HOA and its individuals. Your scheme does not.

It is good that you are familiar, as a board director, with your statutes. Accordingly, you must know that they should be followed.

Janet; LOL. Apparently this is/was an already self-endorsed plan and only approval was sought. So, good luck!