Draft of Florida Statute 468 Part VIII if adopted by the Florida Legislature:
The changes from the previous are as follows:amending s. 468.431, F.S.; revising and providing definitions; amending s. 468.4315, F.S.; renaming the Regulatory Council of Community Association Managers as the Board of Community Association Managers, which shall serve as a regulatory board within the Department of Business and Professional Regulation; revising requirements for the board's membership, meetings, and duties; requiring the board to adopt rules; amending s. 468.432, F.S.; revising licensure requirements for community association managers and firms; amending s. 468.433, F.S.; revising examination requirements for community association manager licensure applicants; revising prelicensure education requirements; revising and providing conditions under which the department shall refuse to certify an applicant; amending s. 468.4336, F.S.; conforming provisions to changes made by the act; amending ss. 468.4337 and 468.4338, F.S.; revising continuing education requirements; conforming provisions; amending s. 468.435, F.S.; revising license fees; amending s. 468.436, F.S.; revising provisions for disciplinary proceedings and the investigation of complaints against community association managers and firms; providing for the appointment of probable cause panels; providing for the issuance and enforcement of subpoenas; revising the grounds for discipline of community association managers and firms; amending s. 468.4365, F.S.; revising requirements for the availability of certain disciplinary records and proceedings; prohibiting the department and board from publishing certain information on any Internet website; amending s. 468.437, F.S., relating to penalties; conforming language; amending s. 468.438, F.S.; revising requirements for the employment by certain timeshare management firms of licensed community association managers; specifying that each member of the Regulatory Council of Community Association Managers becomes a member of the Board of Community Association Managers; providing an effective date.
468.431 Definitions. — As used in this part:
(1) "Board" means the Board of Community Association Managers.
(2) "Community association" means a residential association in which membership is a condition of ownership of a unit or parcel in a planned development, of a lot for a home or a mobile home, or of a residential unit that is part of a residential development scheme and for which the association is authorized to impose a fee necessary for management of the property.
(3) "Community association management" means any of the following practices requiring substantial specialized knowledge, judgment, and managerial skill when done for remuneration for a community association: controlling or disbursing funds, preparing budgets or other financial documents, assisting in the noticing or conduct of meetings, or coordinating maintenance and other day-to-day services involved with the operation of the association or property under the association's management. A person who performs clerical or ministerial functions under the direct supervision and control of a licensed manager or who is charged only with performing maintenance and who does not assist in any of the management services described in this subsection is not required to be licensed under this part.
(4) "Community association management firm" means a corporation, limited liability company, partnership, trust, association, sole proprietorship, or other similar organization engaging in the business of community association management for the purpose of providing any of the services described in subsection (3).
(5) "Community association manager" means a natural person who is licensed pursuant to this part to perform community association management services.
(6) "Department" means the Department of Business and Professional Regulation.
(7) "Division" means the Division of Professions of the department.
468.4315 Board of Community Association Managers.—
(1) The Board of Community Association Managers is created within the department and shall consist of seven members appointed by the Governor and confirmed by the Senate.
(2)(a) Five members of the board must be licensed community association managers, one of whom may be a community association manager employed by a timeshare managing entity as described in ss. 468.438 and 721.13, who have held an active license for at least 5 years. The remaining two board members must be residents of this state, must not be or ever have been connected with the business of community association management, and must not be prohibited from serving because the person is or was a resident or board member of a community association.
(b) The Governor shall appoint members for terms of 4 years. Such members shall serve until their successors are appointed. A member's service on the board begins upon appointment and continues until the member resigns or is removed, or until his or her successor is appointed, whichever occurs first.
(c) Members of the board shall serve without compensation but are entitled to receive per diem and travel expenses pursuant to s. 112.061 while carrying out business approved by the board or, when between meetings, by the chair.
(3) The board shall conduct its meetings upon the call of the chair, the vice chair, a majority of the board's membership, or the department. All meetings of the board shall be open to the public in accordance with s. 286.011 and s. 24, Art. I of the State Constitution.
(4) The board may exercise the functions of a board pursuant to chapter 455. The provisions of chapter 455 and s. 20.165 relating to regulatory boards shall apply, including, but not limited to, provisions relating to board rules and the accountability and liability of board members. All proceedings and actions of the board are subject to the provisions of chapter 120. In addition, chapter 455 and s. 20.165 shall apply to the department in carrying out the duties and authorities conferred upon the department by this part.
(5) The responsibilities of the board shall include, but are not limited to:
(a) Receiving input regarding issues of concern with respect to community association management, administration, and recommendations for changes in applicable laws.
(b) Reviewing, evaluating, and advising the division concerning revisions and adoption of laws and rules affecting community associations.
(c) Providing recommendations to the Governor, the Legislature, and the department for the improvement of community association governance policies and procedures.
(d) Establishing a public education program relating to the role, responsibility, and authority of professional community association managers.
(e) Recommending improvements, if needed, in the education programs offered by the division.
(f) Conducting or providing for an annual survey to determine the efficacy of community association management, educational effectiveness, and the applicable laws and rules. The board shall submit a report of its survey findings to the department for review.
(6)(a) The board shall adopt rules under ss. 120.536(1) and 120.54 to administer the provisions of this chapter and chapter 455 conferring duties upon the board and to assist the department in carrying out the duties and authority conferred upon the department by this part.
(b) The board shall adopt rules relating to the licensure examination, continuing education requirements, continuing education providers, fees, and professional practice standards to assist the department in carrying out the duties and authorities conferred upon the department by this part.
468.432 Licensure of community association managers and community association management firms; exceptions.—
(1) A person may not manage or hold herself or himself out to the public as being able to manage a community association in this state unless the person is licensed by the department in accordance with this part. However, this part does not prohibit any person licensed in this state under any other law or court rule from engaging in the profession for which the person is licensed.
(2) A community association management firm or other similar organization responsible for community association management may not engage or hold itself out to the public as being able to engage in the business of community association management in this state unless it is licensed by the department as a community association management firm in accordance with this part.
(a) A community association management firm or other similar organization desiring to be licensed must apply to the department on a form approved by the department, together with the application, proof of at least $1 million of professional liability insurance coverage, and the licensure fees required by s. 468.435(1)(a) and (c). Each community association management firm applying for licensure under this subsection must be actively registered, licensed, and authorized to do business in this state.
(b) Each applicant must designate on its application a licensed community association manager responsible to respond to all inquiries from and investigations by the department or division.
(c) Each licensed community association management firm must notify the department within 10 days after any change of information contained in the application upon which licensure is based.
(d) Community association management firm licenses expire on September 30 of odd-numbered years and must be renewed every 2 years. An application for renewal shall be accompanied by the renewal fee as required by s. 468.435(1) (d).
(e) If the license of the person designated in paragraph (b) is not valid, the license of the community association management firm or other similar organization is canceled automatically at that time.
(f) Any community association management firm or other similar organization agrees by being licensed that it will employ only licensed persons in providing community association management services as described in s. 468.431(4).
468.433 Licensure by examination.—
(1) A person desiring to be licensed as a community association manager must apply to the department to take the licensure examination. Each applicant must file a complete set of fingerprints taken by an authorized law enforcement officer, which set of fingerprints shall be submitted to the Department of Law Enforcement for state processing and to the Federal Bureau of Investigation for federal processing. The cost of processing shall be borne by the applicant.
(2) The department may only examine an applicant if the applicant is at least 21 years of age and has successfully completed all prelicensure education requirements, and if the department certifies that the applicant is of good moral character.
(a) Good moral character means a personal history of honesty, fairness, and respect for the rights of others and the laws of this state and nation.
(b) The department shall refuse to certify an applicant if:
1. The applicant is not of good moral character;
2. The application contains false or incomplete information;
3. The applicant has provided management services requiring licensure without the requisite license;
4. The applicant has been convicted or found guilty of, or entered a plea of guilty or nolo contendere to, regardless of adjudication of guilt, any felony under the laws of this state, another state, the District of Columbia, or the United States or any possession or territory thereof, or any offense under the laws of any foreign jurisdiction that, if committed in such jurisdictions of the United States, would be a felony; or
5. The applicant has had any other professional license revoked.
(c) When an applicant is found to be unqualified for a license because of a lack of good moral character, the department shall furnish the applicant a statement containing its findings, a complete record of the evidence upon which the determination was based, and a notice of the rights of the applicant to a rehearing and appeal.
(d) The board shall establish by rule the required amount of prelicensure education, which shall consist of at least 40 hours of in-person instruction by a department-approved provider and which shall cover all areas of the examination specified in subsection (3). Such instruction shall be completed within 12 months before the date of the examination. Prelicensure education providers shall be considered continuing education providers for purposes of establishing provider approval fees. A licensee is not required to comply with the continuing education requirements of s. 468.4337 before the first license renewal. The board shall, by rule, set standards for exceptions to the requirement of in-person instruction in cases of hardship or disability.
(3) The board shall approve an examination for licensure. The examination must demonstrate that the applicant has a fundamental knowledge of state and federal laws relating to the operation of community associations and state laws relating to corporations and nonprofit corporations, proper preparation of community association budgets, other financial documents, controlling or disbursing funds, business ethics, proper procedures for noticing and conducting community association meetings, coordinating maintenance, insurance matters relating to community associations, and management skills.
(4) The department shall issue a license to practice in this state as a community association manager to any qualified applicant who successfully completes the examination in accordance with this section and pays the appropriate fee.
468.4336 Renewal of license.—
(2) The board shall adopt rules establishing a procedure for the biennial renewal of licenses.
468.4337 Continuing education. — The department may not renew a license until the licensee submits proof that the licensee has completed the requisite hours of continuing education. At least 10 hours of continuing education is annually required for renewal of a license. The number of hours, criteria, and course content must be approved by the board by rule.
468.4338 Reactivation; continuing education. — The board shall prescribe by rule continuing education requirements for reactivating a license. The continuing education requirements for reactivating a license must be at least 20 classroom hours for each year the license was inactive.
468.435 Fees; establishment; disposition.—
(1) The board shall, by rule, establish the fees specified in this section for the described purposes:
(a) Application fee, not to exceed $50.
(b) Examination fee, not to exceed $100.
(c) Initial license fee, not to exceed $100.
(d) Renewal of license fee, not to exceed $100.
(e) Delinquent license fee, not to exceed $50.
(f) Inactive license fee, not to exceed $25.
(2) Fees collected under this section shall be deposited to the credit of the Professional Regulation Trust Fund and used exclusively for the purpose described in subsection (3).
(3) The board shall establish fees adequate to fund the cost to implement the provisions of this part. Fees shall be based on estimates of the revenue required to fully implement this part and the provisions of law with respect to the regulation of community association managers and firms.
468.436 Disciplinary proceedings.—
(1) The department, pursuant to s. 455.225, shall investigate complaints and allegations of a violation of this part, chapter 455, any other law, or any rule adopted thereunder that are filed against community association managers or firms or forwarded from other divisions of the department. The board shall adopt rules providing for the appointment of probable cause panels, which shall perform the duties of a probable cause panel as provided in chapter 455.
(a) After a complaint is received, the department shall conduct its inquiry with due regard to the interests of the affected parties, the profession, and the public.
(b) Within 30 days after receipt of a complaint, the department shall acknowledge the complaint in writing and, with the advice of the board, notify the complainant whether or not the complaint is within the jurisdiction of the department or whether additional information is needed by the department to make a determination.
(c) If additional information is requested by the department, within 30 days after receipt of the request, the department shall notify the subject of the complaint in writing and notify the complainant of the status of the complaint. The subject must submit any response to the complaint to the department in writing, and the department shall provide a copy of the subject's response to the complainant and allow the complainant to submit a written rebuttal
(d) If an investigation is not completed within the time limits established in this subsection, the department shall, on a monthly basis, notify the subject, the complainant, and the board in writing of the status and details of the investigation. When reporting its action to the complainant, the department shall inform the subject and complainant of any right to a hearing pursuant to ss. 120.569 and 120.57.
(e) For the purpose of any investigation conducted under this part, the director of the division or any officer or employee designated by the director may administer oaths or affirmations, subpoena witnesses and compel their attendance, receive evidence, and require the production of any matter that is relevant to the investigation, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible items and the identity and location of persons having knowledge of relevant facts or any other matter reasonably calculated to lead to the discovery of material evidence. Upon the failure by a person to obey a subpoena or to answer questions propounded by the investigating officer and upon reasonable notice to all affected persons, the division may apply to the circuit court for an order compelling compliance and shall suspend the relevant license pending completion of the investigation.
(2) The following acts constitute grounds for which the disciplinary actions in subsection (4) may be taken:
(a) Violation of any provision of s. 455.227(1).
(b) Violation of any provision of this part.
(c) Violation of any lawful order or rule rendered or adopted by the department or board.
(d) Being convicted or found guilty of, or entering a plea of guilty or nolo contendere to, regardless of adjudication of guilt, any felony under the laws of this state, another state, the District of Columbia, or the United States or any possession or territory thereof, or any offense under the laws of any foreign jurisdiction that, if committed in such jurisdictions of the United States, would be a felony.
(e) Obtaining a license or certification or any other order, ruling, or authorization by means of fraud, misrepresentation, or concealment of material facts.
(f) Committing acts of gross misconduct, culpable negligence, or gross negligence in connection with the profession.
(g) Contracting, on behalf of an association, with any entity in which the licensee has a financial interest that is not disclosed.
(h) Performing an action that brings discredit upon the profession.
(3) The board shall specify by rule acts or omissions that constitute a violation of subsection (2).
(4) When the board finds any community association manager or firm guilty of any of the grounds set forth in subsection (2), the department, with the advice and consent of the board, it may enter an order imposing one or more of the following penalties:
(a) Denial of an application for licensure.
(b) Revocation or suspension of a license.
(c) Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.
(d) Issuance of a reprimand.
(e) Placement of the community association manager or firm on probation for a period of time and subject to such conditions as the board specifies.
(f) Restriction of the authorized scope of practice by the community association manager or firm.
(5) The department may reissue the license of a disciplined community association manager or firm upon certification by the board that the disciplined person or firm has complied with all of the terms and conditions set forth in the final order.
468.4365 Availability of disciplinary records and proceedings. — Notwithstanding s. 455.225, discipline of a licensed community association manager or firm and any proceeding held by the department to discipline a licensed community association manager or firm shall be open and available to the public. However, the department or board may not publish on any Internet website an allegation or complaint that is unfounded, lacking evidence, or resolved without discipline.
468.437 Penalties.—A person who violates this part commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
468.438 Timeshare management firms.—
(1) This section applies only to community association management performed by a management firm acting as managing entity of a timeshare plan pursuant to chapter 721.
(2) A timeshare management firm must employ at least one individual licensed under this part at each geographic location at which the management firm provides community association management. Any community association management provided by any other person on behalf of a time management firm under this section must be performed under the direct supervision and control of a licensed community association manager. A community association manager licensed under this part and employed by a timeshare management firm under this section assumes responsibility for all community association management performed by unlicensed persons employed by the timeshare management firm.
468.439 Upon the effective date of this act, each current member of the Regulatory Council of Community Association Managers becomes a member of the Board of Community Association Managers and may serve until the end of the member's unexpired term on the Regulatory Council.