When does a fine start?

Started by EricaW1 • 8 replies • 1284 views

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EricaW1 (Florida)
Posts: 2

Posted:

Clarification issue that I'm sure I'm just overthinking.

We're in Florida. Assume for this example we have a fining committee and fine schedule published. Resident violates XYZ restriction.

Day 1. Resident receives First Notice of Violation which states infraction and 5 day limit in which to correct infraction, and says HO may be subject to fines/legal action/etc.

Day 6. Resident receives Second Notice of Violation which gives a hearing date (a least 14 days later, by Statute) and states HO may be subject to fines/legal action/etc.

Day 20. Hearing date.

My question is when assessing the fine, does the fine begin on Day 1 or Day 6? We gave him 5 days to fix it, so we shouldn't fine for those 5 days, correct?

Secondly, let's say the HO corrects the violation on day 18. Should we still hold the hearing and fine for days X through 18, or are we obligated to cancel the hearing and/or the fine?

Thank you for any insight. Want to get this right.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Erica,

Are you on the Board, fining committee or the homeowner that has the violation notice?

One needs to ask what the end goal is.
For most, the end goal is to bring the issue into compliance vs. punishing with monetary penalties.

I do not know FL laws or the language within your governing documents. Therefore, I can't tailor my answer to your specific situation. I can give my opinion.

If this is the first violation of this kind for the member, the monetary penalty should start after the hearing. However, in our Association we will often offer to waive said penalty if the issue is brought into compliance within x days as our goal is for the issue to be brought into compliance and the individual to learn from the incident.

If this is the second or repeated violation of this type for the member, the monetary penalty should start after the hearing. However, your governing documents may consider a repeat offense within x days to be considered a continuing violation (the reason why I can't tailor the answer without knowing what is in your governing docs).

If the member receives enough notices to be called to a hearing on the matter but corrects prior to the hearing, the hearing should still take place. No penalty should be imposed (because the violation was corrected) but the opportunity to learn from this experience should not be wasted. What is learned and how it is received would be based mainly on what is in the written letter informing the member of the hearing results.

Hope this helps,

Tim

EricaW1 (Florida)
Posts: 2

Posted:

I am on the Board. We are in the process of setting up our fining committee and creating violation procedures because we suddenly have lots of violators. Our docs and FL Statutes both speak to fines and fining committees, just neither is clear on when the fine - especially if a per day fine - would start.

We do have residents who would take advantage of the grace period afforded for them to correct the violation. If we give them 10 days to correct, they won't do it until the 9th day at the 11th hour. That's all fine and good, but then they'll do it again.

So, after receiving a first notice with a grace period, if they receive a second notice with a potential fine, it may stop some of the game playing. Money speaks. It costs the HOA money to continually mail notices, too.

Beginning after the hearing makes sense. Thank you so much for the quick response.

LetA (Nevada)
Posts: 2,679

Posted:

Quote:

Posted By EricaW1 on 11/30/2017 8:34 AM
I am on the Board. We are in the process of setting up our fining committee and creating violation procedures because we suddenly have lots of violators. Our docs and FL Statutes both speak to fines and fining committees, just neither is clear on when the fine - especially if a per day fine - would start.

We do have residents who would take advantage of the grace period afforded for them to correct the violation. If we give them 10 days to correct, they won't do it until the 9th day at the 11th hour. That's all fine and good, but then they'll do it again.

So, after receiving a first notice with a grace period, if they receive a second notice with a potential fine, it may stop some of the game playing. Money speaks. It costs the HOA money to continually mail notices, too.

Beginning after the hearing makes sense. Thank you so much for the quick response.

Your fining schedule should be in your governing documents. Remember, HOA's are not for profit. Why are you sending out two violation letters that seem to be conflicting the previous letter? What purpose would it serve to fine someone that resolves an issue within the demand letter? I'm perfectly ok with fining someone if violations are not resolved, ignored or persistently ongoing.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Our fining schedule says something like correcting the violation does not put one back at square one.

Say we write a letter of violation or end up fining and the violation gets corrected but they commit the same violation again. We go to the next step immediately which is no warning letter and a doubling of the fine.

RichardP13 (California)
Posts: 3,868

Posted:

I would check your state statues, especially in Florida, whether you are required to have due process when someone commits a violations of the rules. below is a legal opinion on guidelines some of us use in California.

QUESTION: If an owner is fined for a violation one month, then repeats the violation the following month, can we go straight to a fine or does the hearing process start over again?

ANSWER: Associations cannot discipline a member without due process. The accused gets an opportunity to contest each alleged violation. There is a difference, however, between repeat violations and continuing violations.

Repeat Violations. An example of a repeat violation is where an owner violates a rule by letting his dog off the leash. The board holds a hearing and fines him. The next month the owner's dog is off the leash again. That requires another hearing and another fine. The following month he does it again--a third hearing and another fine. The rules may allow for escalating fines, $50, $75, $100, but each incident requires a notice, a hearing, presentation of evidence, and a written decision.

Continuing Violations. A continuing violation is a single violation that persists. For example, If an association limits owners to one dog of no more than 25 pounds (typical for dense condominium developments with elevators) and an owner moves in with a 200-pound Mastiff (scary for people in narrow hallways and tight elevators), the board may impose a daily fine against the owner until such time as the dog is removed from the property. The board holds one hearing and imposes a continuing fine for the continuing violation.

Carrot and Stick. I like the carrot and stick approach when using daily fines. The goal is to eliminate the violation not to make money. Once the fine is levied, the board should simultaneously offer to waive the fine if the owner complies within 30 days (or some other reasonable time period set by the board). Offering to waive the fine encourages compliance and eliminates trips to court. We include a provision for daily fines in our documents and I recommend that boards update their documents to allow for such fines.

Three Strikes Rule. As a rule of thumb, boards should not impose more than three fines for the same violation. Fines are imposed to deter bad behavior. If three fines haven’t done the job, then fines are not going to work and the board should take legal action against the owner seeing injunctive relief.

AllisonD (Florida)
Posts: 449

Posted:

After sending the required letters, the board would meet to vote on the fine. The fine starts on the day of the vote however the homeowner has the ability to have the fine committee review the fine. If the fine committee deems it a valid fine, it starts on the day of the original vote (if its a fine per day for each day the violation exists) or just the one day. Either way, the homeowner should be correcting the violation. My take of the fine committee is that it is focusing on the fine only and not the actual violation because that was already voted on by the board with letters having been sent. The committee would make sure the proper letters were sent and that the fine is valid. The homeowner should have attended the original meeting where the board voted on the fine, to protest the violation.

GenoS (Florida)
Posts: 4,276

Posted:

I think the purpose of the fining committee as described in FS 720 is to confirm or reject the fine.

"If the committee, by majority vote, does not approve a proposed fine or suspension, it may not be imposed."

Therefore I believe the fine doesn't actually exist until the fining committee approves it. Until then it's a "proposed fine". I think the function of the fining committee is much more than just making sure proper procedures were followed. The fining committee can reject a proposed fine for any reason. But if they do so, based on personal whims or otherwise in an arbitrary or capricious manner, then that potentially opens up a whole other can of worms.

If the committee rejects the fine, it never existed. A continuing violation subject to daily fines needs only one notice and opportunity for a hearing.

KerryL1 (California)
Posts: 14,550

Posted:

Warning letter and then a call to a hearing for loud partying on a balcony in our condo building. Absentee owner. He's fined $100. violation repeated a few weeks later. Call to hearing & the fine is doubled. Owners begs his tenant to behave. Couple weeks later, another violation. We're now at $400. We also remove his guests' access to Visitor Parking, in our urban 'hood, and write that the tenant must personally go to the street to let in his guests. We limit his guests to 6. A month off, but then again, $800. Owner in Ohio is very upset. Finally another call & a $1,600 fine. Owner puts eviction wheels in motion. Tenant moved out yesterday.

(PS, he was renting a $2,600 penthouse and probably had paid a BIG deposit.)

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