Tuesday, March 29, 2011

'Corrections Committee' aka 'Fining Committee' info

An NCC committee has recently come into being to enforce the various condo documents. The committee members are:  Mark Aldrich (806), Joseph Vanderwerrff (514) and Hollie Hundley (613).  Any fines against Owners are initially proposed by BOD members and the decision to impose any penalty is up to the committee.  No BOD member or member of their household may serve on the committee.

My research shows that there is almost no uniformity in such hearings among various condominiums, every association is reasonably free to do it their way providing basic 'due process' is provided to the supposed violator.

One thing is clear in our Declaration of Condominium (p. 37 at 'Fines 23.3A), whoever is on the committee must be an actual owner.  Below are links to an informative series of articles which anyone interested in the subject should take a look at.

It would be a good idea for any such proceedings to be tape recorded by the committee and of course any 'violator' also has that right.  Also, no association fine may become a lien against a unit.*.

* Florida Constitution Article X SECTION 4. Homestead; exemptions at: http://www.spcodesextortion.org/artX.pdf
Also Case Law: Florida Supreme Court in the case of Ilkanic v. City of Fort Lauderdale, 705 So. 2d 1371 '. . . the civil restitution lien cannot be a cloud on homestead property.'

Dispute Resolution Outlined
http://www.becker-poliakoff.com/pubs/articles/adams/adams_2006_02_23.pdf
"As always, there are two primary sources that must
be considered, the law and the provisions of the
governing documents. Let’s look at the law. As we
all know, condominiums are governed by Chapter 718
of the Florida Statutes.* . . . No fine can be levied except
after giving reasonable notice and opportunity for a
hearing to the unit owner, and if applicable, a licensee
or invitee of the unit owner. The hearing must be
held before a committee of unit owners who do not
serve on the board**,
and the committee must agree
with the proposed fine, or it cannot be levied."

* http://www.ccfjedu.net/condo718statutes.html
** 718.303 Obligations of owners; waiver; levy of fine against unit by association.--
(3) The hearing must be held before a committee of other unit owners who are neither board members nor persons residing in a board member's household.

Follow Due Process to Levy Fines
http://www.becker-poliakoff.com/pubs/articles/adams/adams_2006_03_02.pdf
"The content of the fining hearing notice is not
specified by law. This is where the more generic
concept of "due process" comes into play. By analogy
to constitutional law, a party accused of an offense
has certain basic rights, including the right to know
the charges levied against him or her; the right to
be heard; the right to confront and cross-examine
witnesses; and the right to be represented by legal
counsel."
Hearing Needed to Levy Fines
http://www.becker-poliakoff.com/pubs/articles/adams/adams_2006_03_09.pdf, see also: 
 http://www.becker-poliakoff.com/pubs/newsletters/cu/cu_2006_v2.pdf

". . . there are no formal rules of evidence
that need be followed, the basic goal is to permit both
sides to tell their story, make whatever points they
feel are relevant and have the opportunity to be fully
heard. As an informal proceeding, there is no rule that
prohibits members of the board, or even members
from the fining committee from asking questions and
chiming in where they wish to do so, subject to normal
rules of order established by the presiding officer."