Q: Hi, I am a new Director for my condominium. The property manager told us that we have a lot of violations in our building, and he explained the process, but even after his explanation I still feel like I don’t have a complete understanding of the process. Can you help? Thanks.
-E.B., Boca Raton
A: Congratulations on becoming a Director and getting involved with your community. In response to your question, the following is a brief outline of the fining process:
- Before getting to the point where the fining process starts, we recommend sending a Warning Notice before fining. Often warning notices give the needed push to get an owner to bring a violation into compliance, which saves the Association time, money and the energy of the Board and the Property Manager.
- When a possible violation comes to the Board’s attention, it should consider whether there is sufficient proof; determine exactly what provisions of the Declaration or Rules is involved; and then document its official decision to fine in the Minutes of the meeting where that occurred.
- If there is sufficient proof, written notice of the violation should be sent to the violator. Note that the Board can delegate authority to a Committee or a Property Manager to issue violation notices but not notice of fines. Once the Board has voted to fine a member or suspend their use privileges, the next step is to issue a Notice of Intent to Fine.
- Note that giving actual notice throughout the process is fundamental. Notices do not need to be sent by Certified Mail, but if they are sent by Certified Mail, then you should also send a copy by Regular Mail. Our recommendation is to send them both ways.
- The notice must be specific. At a minimum you need the date(s) and time(s) of the violation(s); the location of the violation(s); identification of the Section(s) of the governing documents or Rule that has been violated; and a description of the violation(s). Generally, the description is what requires some thought, and you should try to include each and every Section or Rule that you think may apply. For example, a barking dog on a balcony may violate the pet policy, but it may also violate the nuisance provision. If an unrecorded Rule is at issue, then you quote the Rule and reference the date of adoption and mailing or other publication to the owners.
- After the Board decides to levy a fine, the owner has a right to a Hearing before a Committee of other unit owners. This is referred to as the “Fining Committee.”
- The Association must send the Notice of Intent to Fine and Notice of Hearing at least 19 days prior to the Hearing (the Florida Rules of Civil Procedure require a 5 day grace period when notices are mailed, and the statute requires 14 days prior notice).
- The “accused” owner has the right to present reasons why the fine should not be imposed and to be represented by counsel if desired. The Association also needs to have a representative at the Hearing to “prosecute.” The Association’s representative can be its Property Manager, a Board Member, a member of a “Rules Committee.” an attorney, or some other person designated for this purpose.
- The Association’s prima facia case would include: proof of mailing the Notice of Intent to Fine and Notice of Hearing; the evidence of the violation; and reference to the provision or Rule that was violated. If there is no signed Certified Mail Return Receipt, then testimony or a certificate from whoever mailed the notice should be presented.
- The Association is authorized to levy reasonable fines of up to $100 per violation and $100 per day in the case of a continuing violation, subject to a $1,000 limit; however, keep in mind that the maximum fine may not always be “reasonable.” Fines must be kept in proportion to the offense. Additionally, pursuant to statute, no fine will become a lien against a unit, but the Association has the right to file a suit in Small Claims Court and any action to recover the fine, the Association is entitled to recover attorney fees and costs. Generally, in the suit you will only need to establish that the fine was properly assessed. If the steps outlined above have been followed, then you should have the necessary documentation. The proof of the underlying offense will also be apparent from the decision of the Fining Committee, but I recommend that the “full record” be available just in case the Judge decides to require proof of the violation.
- Uniform enforcement, fairness, impartiality, and keeping the fines in proportion to the violations are essential to a successful program. Care should be taken to be reasonable, especially when multiple fines are being levied against the owner.
I hope this information helps clarify the fining process.
Avi S. Tryson, Esq., is Partner of the Law Firm Goede, Adamczyk, DeBoest & Cross. Ask questions about your issues for future columns, send your inquiry to: firstname.lastname@example.org. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.