Issue: Our Bylaws establish a committee to levy fines that are approved by the Board of Directors. The question has arose if the committee needs to meet each time to levy a fine that has been pre-approved by the Board, or can the fine just be levied? We do first send a warning letter and what the fine would be if not corrected. We also inform the homeowner that he or she has the right to appeal to the committee, but failure to appeal will result in the fine being levied without a hearing?
J.B., Bonita Springs
Answer: Your question is essentially whether the association must provide a hearing prior to levying a fine. The sole statutory framework on this issue is that “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.”
I am aware of some attorneys who interpret the above provision as requiring only an opportunity to request a hearing. In other words, at least one camp of thought on this issue agrees with your procedure that a hearing is not necessary unless specifically requested.
Other attorneys opine that a hearing is required regardless of whether the owner requests a hearing.
As you can see, the statute is not clear and the critical issue is whether the Association can demonstrate that the owner was on notice of an opportunity for hearing. You should also review your Bylaws and other governing documents to ensure that your particular documents do not impose a heightened procedural requirement.
My personal opinion is that the owner should be provided a hearing regardless of whether the owner requests a hearing. Your community has already created the committee (which is half the battle) and an uncontested hearing is expeditious.