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Subject: Floride ARC homeowner Sunshine Law.
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Author Messages
RayB3
(Florida)

Posts:1


09/16/2007 3:21 PM  
Is the ARC required to come under the Florida Sunshe Law when meeting to approve/diapprove a ARC request from homeowners?

RayB
NancyD1
(Florida)

Posts:447


09/17/2007 5:27 PM  
The Fl Sunshine does not pertain to FL HOA's. It was created to allow open meetings for all, for the state and local government entities.

The only caveat in the Sunshine Law is the ARC committee. If a homeowner has an application to be reviewed and approved or denied by the county the Sunshine law is applied.
RW1


Posts:0


09/17/2007 5:59 PM  
If you read FL720 in the section referring to board meeting notice requirements (sorry, I don't have a copy of it near me to cite exact subsection #, etc) it mentions that:

[and I'm paraphrasing here]the rules regarding BOD meetings ALSO applies to a meeting of any body (i.e. ARC committee) that has the "power" to make final decisions regarding architectural control decisions. Thus, meaning (to me) that an "ARC" committee meeting must be posted 48 hrs. in advance and be open IF the committee has the [BOD given] authority for final application approval/disapproval. If they merely ADVISE the BOD who then have the final vote...I believe they are permitted to meet in a closed or otherwise private session if they choose.

RW1
NancyD1
(Florida)

Posts:447


09/18/2007 4:02 AM  
RW1 the provision states2) BOARD MEETINGS.--

(a) A meeting of the board of directors of an association occurs whenever a quorum of the board gathers to conduct association business. All meetings of the board must be open to all members except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege. The provisions of this subsection shall also apply to the meetings of any committee or other similar body when a final decision will be made regarding the expenditure of association funds and to meetings of any body vested with the power to approve or disapprove architectural decisions with respect to a specific parcel of residential property owned by a member of the community.

The homeowner may attend the meeting if a decision is to be made whether it is by the BOD or the ARC committee.
RW1


Posts:0


09/18/2007 4:12 AM  
Nancy,


Why the frowning imoticon?

You agree with me.

My statement did not conflict with your opinion and was not specifically inclusive.

I did not have a copy of 720 before me. I did say I was paraphrasing.

It was a given the person was aware of BOD meeting proceedures.

RW1
NancyD1
(Florida)

Posts:447


09/18/2007 5:04 AM  
Posted By RW1 on 09/18/2007 4:12 AM
Nancy,


Why the frowning imoticon?

You agree with me.

My statement did not conflict with your opinion and was not specifically inclusive.

I did not have a copy of 720 before me. I did say I was paraphrasing.

It was a given the person was aware of BOD meeting proceedures.

RW1



RW1, I did not put the imotion in. I think it was added by the forum leaders. I did understand that you were paraphrasing, I copied the paragraph so that others would understand it.

Sorry, there was no other intention meant.
JohnM3
(Florida)

Posts:288


09/18/2007 6:48 AM  
Nancy: The " Sunshine Law" does pertain to HOAs and Condos in that if 3 or more officers of the bod. Are walking they cannot discuss bod situations, unless they take minutes of the meetimg and add it to the next BOD. So says our lawyer during a multi-million dollar law suit that we won from a huge developer in Florida. In addition to the lawyers who handled the Principle part of the law suit, our normal lawyers or second law firm told us the same thing. I would say it is a safe bet that when 2 different HOA Law Firms agree I usually agree with them.

Now on to the ARC the law does apply to the arc meetings but our docs state 3 members to make a arc. Minutes are to be taken and attached to the next meeting. Usually we request the member to appear to state there case. In addition all discussions of the ARC can be changed by the BOD or made final by the BOD. So technically as you see the ARC does not make final discussions in arc matters. In our docs the member has the right to appeal in front of the entire BOD.They can over-ride the ARC. Because they serve at the pleasure of the BOD.
DonnaS
(Tennessee)

Posts:5671


09/18/2007 9:54 AM  

John,

Sorry to disagree with you but the Florida Sunshine Law has 2 paragraphs that state that H.O.A.'s are NOT required to follow the Sunshine Laws on meetings "Excpet" if such meeting requires approval or involvement from the County that the H.O.A. is built in, reguarding permits and archetectural issues. I have not my copy handy but I recall pages 4 and 7 are where there are small paragraphs stating such.
NancyD1
(Florida)

Posts:447


09/18/2007 2:08 PM  
Posted By JohnM3 on 09/18/2007 6:48 AM
Nancy: The " Sunshine Law" does pertain to HOAs and Condos in that if 3 or more officers of the bod. Are walking they cannot discuss bod situations, unless they take minutes of the meetimg and add it to the next BOD. So says our lawyer during a multi-million dollar law suit that we won from a huge developer in Florida. In addition to the lawyers who handled the Principle part of the law suit, our normal lawyers or second law firm told us the same thing. I would say it is a safe bet that when 2 different HOA Law Firms agree I usually agree with them.

Now on to the ARC the law does apply to the arc meetings but our docs state 3 members to make a arc. Minutes are to be taken and attached to the next meeting. Usually we request the member to appear to state there case. In addition all discussions of the ARC can be changed by the BOD or made final by the BOD. So technically as you see the ARC does not make final discussions in arc matters. In our docs the member has the right to appeal in front of the entire BOD.They can over-ride the ARC. Because they serve at the pleasure of the BOD.



c. Homeowners' associations




The Sunshine Law does not generally apply to meetings of a homeowners' association board of directors. Inf. Op. to Fasano, June 7, 1996. Other statutes govern access to records and meetings of these associations. See, e.g., s. 720.303(2), F.S. (homeowners' association board of directors); s. 718.112(2)(c), F.S. (condominium board of administration); s. 719.106(1)(c), F.S. (cooperative board of administration); and s. 723.078(2)(c), F.S. (mobile home park homeowners' association board of directors). Cf., AGO 99-53 (an architectural review committee of a homeowners' association is subject to the Sunshine Law where that committee, pursuant to county ordinance, must review and approve applications for county building permits).

The above is an answer posed to the FL attorney General, do the Sunshine laws apply to HOA's. It is found on the AG web site.

BradD2
(Florida)

Posts:418


09/19/2007 10:07 AM  
All, she added a colon and an open parathenisis as part of her normal text which the forums converted into a frowning face. Many forums, but apparently not this one, have an option to disable that in your posts. To avoid it in the future put a space between them.
DonnaS
(Tennessee)

Posts:5671


09/19/2007 11:17 AM  

Thank You NancyD for the quote of the sunshine paragraph. I did that one from memory of a year ago when I looked it up. Not bad huh?
NancyD1
(Florida)

Posts:447


09/19/2007 2:46 PM  
Posted By DonnaS on 09/19/2007 11:17 AM

Thank You NancyD for the quote of the sunshine paragraph. I did that one from memory of a year ago when I looked it up. Not bad huh?





I knew HOA's did not fall under the Sunshine Law since 1992 but I had to go through the Attorney General site to find the quote.

Good memory, Donna!!
NancyD1
(Florida)

Posts:447


09/19/2007 2:48 PM  
Posted By BradD2 on 09/19/2007 10:07 AM
All, she added a colon and an open parathenisis as part of her normal text which the forums converted into a frowning face. Many forums, but apparently not this one, have an option to disable that in your posts. To avoid it in the future put a space between them.





Brad, thanks. I won't do that again!!
JohnM3
(Florida)

Posts:288


09/20/2007 9:56 AM  
Sorry both you lady lawyers are wrong key word in the AG statement is "Generally"
We were warned by attys we trust so we do it as the attys we paid told us to do so we do it cause we have better fish to fry period.

Question to the administrator. I thought this was a website for bod members to share knowledge and experiences with. Now I see lawyers inhabiting this area and condo questions what happened to the original purpose of this website?
DonnaS
(Tennessee)

Posts:5671


09/20/2007 10:08 AM  
John,
Donna S. here, formerly a Salon owner and now a member of our B.O.D. I also am chairman of our Documents committee and research member for a Documents committee in a 55 + community where I own a unit. Not a Lawyer!
During a court case where our community was answering to an owner who would not comply with a protective covenant, our attorney and the Judge concured that the word "generally" is meaningless. Therefore,look at the subject matter of the sentence. There are 2 paragraphs in the Sunshine Law that state that H.O.A. are not subject to Sunshine Laws except in cases where permitting for the County is involved. Pages 4 and 7. I do not have the copy nearby but you can look it up on line. Nancy D. stated one of them correctly.
FlorenceW
(Florida)

Posts:2


09/20/2007 10:34 AM  
The Florida Legislature approved SB 902 which has a number of Very important issues regarding
mandatory reserves in the budget, AND especially ARC retstrictions; it goes into effect JULY 1, 2007
All Florida board members should have 617 "Florida Not for Profit Corporations Act" - updated January 2006.
There are changes to be aware of. You can send for A copy from Tallahassee, no charge. Board members should,
in addition to the above, Florida Statutes 720....
Re:update SB902 Revised
Quote:
The proposed architectural review provisions completely eliminate any discretion for committees to
review plans and decide what looks pleasing and what doesn't. This means that to the greatest extent
possible, the architectural codes will need to spell out in great detail every possible configuration.
To give just a simple example, instead of the owner presenting a color palette of proposed selections
for paint and trim, the code will need to specify every possible acceptable combination. Very few
existing codes wil satisfy this requirement.
Even if associations put the effort into adding this level of detail, some things just aren't susceptible to coding. It does not appear to give the association any ability to reject, say, a proposed room addition that
is ungainly and poorly proportioned, if it otherwise follows the code.
Unquote
email received by Attorney Bob Tankel at Condolawyer@aol.com
NancyD1
(Florida)

Posts:447


09/20/2007 12:13 PM  
Posted By JohnM3 on 09/20/2007 9:56 AM
Sorry both you lady lawyers are wrong key word in the AG statement is "Generally"
We were warned by attys we trust so we do it as the attys we paid told us to do so we do it cause we have better fish to fry period.

Question to the administrator. I thought this was a website for bod members to share knowledge and experiences with. Now I see lawyers inhabiting this area and condo questions what happened to the original purpose of this website?




John, I was an attorney, but not in Florida. 14 years ago when I moved to FL a company hired me as a legal consultant for the developments (HOA & Condo)they produced. I set up many communities CC&R, By-Laws and Rules & Regs. I retired a year ago.

I am the Treasurer of my HOA. I speak from experience only and have legal knowledge of certain facts. I respond to questions asked mainly about either FL HOA or Condo issues or general questions about the way we do things in our community.

I have not professed or expounded legal advise to anyone. When a question is asked about a legal issue or FL statutes I have tried to provide the backup information for the individual asking the question. Everyone can have theory's but the quotation provides the answer in most cases. Most of the information that is quoted is available on the web. As is the Sunshine Law.

I was intrigued when you stated your association won a case involving the Sunshine law. If your HOA case was cited before June 7, 1996, you may have won the case. I did not find it worth the time or effort to investigate because as you can see from the quotation from the AG site, the Supreme court of FL cites an opinion of Fasano June 7, 1996. At this time it became case law.

If I read and comprehended RayB's original question he asked if the ARC was ruled by the Sunshine Law. Maybe it was my assumption, but I thought the question pertained to the current time period not pre June 7, 1996.

You should also read the Administrator disclaimer at the bottom of the page again. Where does it state that anyone, even an attorney cannot respond to questions on this forum. If the sponsoring attorney's answer a question it is not to be taken as a professional opinion. And Condos, what have they got to do with anything? No one should ask a question about condos only HOA's? Since Condo law was in place in most states before HOA law, and many of the laws are interchangeable, they are pertinent to this forum. I have never seen anywhere on this website that a question cannot be asked about condo. The main site, that sponsor this forum, is called Community Association Network, A Condo and HOA Resource.

Doesn't a question ask for an answer? If that answer happens to be something you don't agree with, that's your prerogative and you can post your response.
DonnaS
(Tennessee)

Posts:5671


09/20/2007 12:19 PM  

Well put Nancy. Yes, the original question was deserving of the answer that we both gave. It's sometimes hard for people to stick to the original subject and question. Thank you
RogerB
(Colorado)

Posts:4883


09/20/2007 1:11 PM  
Nancy, thank you for sharing information based on your expertise and experiences. I find your posts to be wonderful!! In particular backing up your statements with references is most useful.
RW1


Posts:0


09/21/2007 4:08 AM  
Here! Here! Nancy.

Great to know your background.

I may be new, but I recognize you are a great resource!

RW1
NancyD1
(Florida)

Posts:447


09/21/2007 5:11 AM  
Thanks to all for your support. Please know that I would not say something that I am not versed on. I ask questions sometimes before I give an answer because I want to make sure of the circumstances and I do not want to make assumptions. If I recommend attorney action, I have to believe that there is just cause.
DaneC
(California)

Posts:210


09/22/2007 10:15 AM  
So, that explains your ever professional responses! Keep up the great work.
JohnM3
(Florida)

Posts:288


11/14/2007 5:25 PM  
Florence thank you for the updating of information on the ARC. Reference the others you are entitled to your opinions. I have lived thru 20 years on my BOD. What I speak of is experience, day in and day out. We were told by the Judge who has been the Judge on 8 of our cases in her opinion that the Sunshine Law effects HOAs and I choose to listen to her cause most of the time she agrees with our method of handling things brought before her court period.

To get back to the original post thank you Florence for the update. It is now a nightmare enforcing HOA covenants thanks to several lawyers in Tallahassee who refused to allow any input from any of the Bods before they changed the rules for ARC findings.

In closing we were told by 5 different lawyers that our lawsuit against the biggest developer in the entire USA was un-winnable. But we chose to ignore them cause we felt we were right. As is the usual case many lawyers equals many different opinions on everything... PS we won the case but the lawyers got most of the money! We got a few bucks they got the rest.
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