Fining Procedures

Most Commonly Asked Questions

By Dania S. Fernandez, Esq. / Published December 2018

Q

uestion:

I’m a board member at a condominium association. There are members in the community who are constantly violating the rules and regulations. Management is frequently sending violation notices, which are continuously ignored. The violations are repeatedly made by the same residents. We are working so hard to make our community a better place to live and cannot seem to break this pattern of violations. Does the law require an association to send a friendly violation notice before fining the violator? What can we do?

Answer:

No. Start fining and suspend voting rights and common area use. Let’s start with the basics by reviewing Florida Statute 718.303 (3), the applicable statute that regulates condominium associations when levying fines. An association has the right to levy a fine for the failure of the unit owner or its occupant, licensee, or invitee to comply with the declaration, bylaws, and/or reasonable rules and regulations of the association (herein called “governing documents”).

A fine or suspension by the board of directors may not be imposed unless the board provides at least a 14-day written notice to the unit owner and any occupant, licensee, or invitee of the owner sought to be fined or suspended. An opportunity for a hearing before a committee of at least three members must be provided. Here are 10 steps that can be set in motion in your community: 

Step 1:  Form the Committee:

• Board of directors must create a fining committee (also called covenant/fining/grievance/violation committee).
• Committee must be comprised of three owners.
• Members cannot be directors or spouse or family of a director.
• Committee must be named and approved at an open meeting of the board of directors.

Step 2:  Create a Fining Policy

     See below a sample policy: 

ABC Condominium Violation Policy

A.  Association/management identifies the violation.
B.  Complete violation record.
C.  Send notice of violation to owner/resident via hand delivery, US mail, or certified mail.
D.  Notice must contain the following:
    1. Description of the violation,
    2. Authority in governing documents to cite the issue as a violation,
    3. A picture (optional),
    4. The required timeframe to correct the violation, and
    5. Disclosure of his/her 14-day right to be heard before the fining/grievance committee.
    6. Alert fining committee of the violation sent and schedule a hearing.
    7. Complete the violation record.
    8. Send notice of final decision to owner/resident.
    9. If fine is approved, then include fine amount in the  account ledger.
    10. Send non-payment of fine, collection notice to owner.
    11. If delinquent more than 90 days and more than $1,000, then suspend voting rights and common element use.
    12. For non-payment beyond 30 days, send legal letter of non-payment followed by small claims lawsuit. Prevailing party is awarded  attorney’s fees.

Step 3:  Identify the Violation:

• The board of directors issues the violation and informs management and committee.
• The board of directors can delegate this step to management.
• The committee is not the responsible party to identify the violation and issue the violation notice.
• The committee must remain impartial.

Step 4: Send a 14-Day Notice:

• Violator (owner and tenant if applicable) must be given a 14-day written notice and an opportunity for a hearing before a fine may be imposed.
• Notice must state the violation and 14-day right to be heard (their day to defend themselves and state their reason for the violation, if any.)

Step 5:  Coordinate Committee Hearing Date and Time with Violator:

• Document any attempts made to coordinate the hearing.
• Include who made the call, what time, whom spoken to, notes of call, etc.
• Documentation is key. The violator’s defense may be that notice was not provided.

Step 6:  At the Hearing:

• The violator will have the opportunity to present their facts and defenses to the committee.
• A decision does not have to be made at the hearing.
• After hearing all the facts, the committee decides whether the fine should be “confirmed” or “rejected.”
• The fine cannot exceed $100 per day, per violation, or $1,000 in the aggregate.
• In the event the violator does not request to be heard or fails to appear at the hearing, the hearing should continue and decision to fine made by the committee.

Step 7: Committee Reports to the Board of Directors— “Confirm” or “Reject” Fine:

• The board of directors then imposes the fine if confirmed by the committee.

Step 8: Imposition of Fine:

• Include the fine amount in the ledger.
• Send notice to owner, by mail or hand delivery, of the amount of the fine and date due.
• The fine is due five days after the date of the committee meeting at which the fine is approved.

Step 9: Non-payment of Fine:

• Send to collection department or attorney.
• If fine is 90 days past due, proceed to suspension of voting rights and use of common elements.
• All suspensions must be approved at a properly noticed board meeting.
• Notice of suspension must be sent to owner and tenant, if any.

Step 10: Non-compliance of Violation:

• Bring an Action for Damages or injunctive relief, or both. Consult with your association attorney.

Question:

Is the association required to allow the violator 14 days to correct the violation?

Answer:

No. The allocated time to correct the violation depends on the violation, your community’s governing documents, and the board of directors. The 14-day requirement, per Florida Statute 718.303, was written to provide the violator enough notice to prepare and schedule a hearing to be heard before the fining/grievance committee. This 14-day requirement is not a 14-day grace period to correct the violation. For example, a violator who leaves his/her trash bin outside must correct this violation immediately. Some governing documents may provide a 30-day period to correct depending on the violation, such as a fence repair or exterior painting. Other violations must be corrected immediately, such as misuse of a balcony, cars parked on common areas, pet restriction, etc.

Question:

The violator has been sent a violation notice, a hearing was held with the fining committee, and notice was provided to the owner. However, the violator seems to not care and continues in his ways. What do we do now?

Answer:

Consult with your attorney first. Your next step will be to begin the process of suspension of rights. There is also a process to follow before suspending anyone’s rights. The applicable Florida Statute is 718.303 (4–5). See steps below:

Step 1: Make certain all steps to fining above were followed and documented.

Step 2: Determine if the fine is more than $1,000 and more than 90 days delinquent.

Step 3: Hold a board meeting for the approval of such suspension. Suspension must be an item on the agenda to be discussed and approved by the majority of the board of directors. Suspensions are not required to be heard by the fining/grievance committee.

Step 4: After approval, proof of monetary obligation must be provided to the unit owner or member 30 days before such suspension takes place. Document proof of notice and mailing.

Step 5: Suspension is effective 30 days after notice is provided.

Step 6: Suspension ends upon full payment of the delinquency. 

Dania S. Fernandez, Esq.

Dania S. Fernandez & Associates P.A.

For more help on creating a master plan, call or email the Law Offices of Dania S. Fernandez & Associates P.A. Our firm is dedicated to educating and guiding clients in the areas of homeowners and condominium associations, real estate, and insurance claim law for associations. Call us today at (305)254-4492 or visit our website at www.daniafernandez.com.