Get 6 months of free community web site hosting from Community123.com!
Tuesday, September 02, 2014
HOA Websites by Community123.com (National Community Website Provider)
We built HOATalk and we'll build your community website for free!  Click here for information on a free trial website.
Community Associations Network (National HOA Reference Library)
News, articles and blogs about condos/HOA's
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: Florida-Felon voting rights
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
AnnaD2
(Florida)

Posts:935


07/08/2008 9:50 AM  
Hi Everybody!

As most of you in Florida know, with the new state statutes for condos, convicted felons who have had their rights restored for more than five years are now able to vote at their associations.

My question concerns those who are still on felony probation. Since they are NOT able to vote at condo associations do they also lose other rights within the association? In particular, are they allowed to review official association records and documents?

Thanks all who reply!
DonnaS
(Tennessee)

Posts:5671


07/08/2008 10:38 AM  

Anna,
I'd like to make an educated guess but being somewhat leary and using common sense, I would venture to say that only your association attorney should make this call. Or any good HOA Attorney. I could see a major issue of this in the event of someone requesting and being denied their rights to review. The expense of back peddling out of this would be more than the initial cost of the inquirey
AnnaD2
(Florida)

Posts:935


07/08/2008 10:43 AM  
Thank you Donna. I was thinking along the same lines but was just curious if anyone knew (for a fact) whether "other rights" were written in stone somewhere. Thank you!

I'm sure you're not missing this sweltering Florida summer!! Lucky you!
ClaudeV
(Florida)

Posts:86


07/08/2008 10:47 AM  
Please keep ALL of Florida's laws in mind here:

We have the "Sunshine Law" that applies to ALL governmental agencies, including HOA's! Anything that a felon would have access to at the courthouse would be a guideline for you, but I believe that they ARE, in Florida, to the access granted by the Sunshine Laws. Voting at HOA meetings? That may be another kettle of fish, but as an "owner", they would still have a right to voice their input, if not vote upon it themselves.

Once a felon's civil rights have been restored, they are "restored", period. I haven't seen any time limitations "after" they are restored. I'm not an attorney, but I am an ex-law enforcement officer with the DOC.
AnnaD2
(Florida)

Posts:935


07/08/2008 10:54 AM  
Thank you Claude for your input! Well said. However, now I'm really confused as I was under the impression that the Sunshine Laws did NOT apply to non-profit organizations, including Condo Associations.

Donna, am I dreaming?
ClaudeV
(Florida)

Posts:86


07/08/2008 10:57 AM  
aNNd2,

Sorry, I don't know the "difinitive" answer to that but I can look it up if someone doesn't beat me to it. All I know is that HOA's ARE a "mini-government" chartered with the state under Florida State Law ch 720. That is my reasoning for saying that. I could be mistaken, but I'll try to find out.
BrianB
(California)

Posts:2803


07/08/2008 11:12 AM  
Sunshine laws vary from state to state. It is my understanding that Florida has a set of sunshine laws that specifically includes HOA's, so yes, in florida, they are covered by open meeting laws. that is not always true in all other states: some states include HOAs in their laws, some do not, and some have specific laws for government bodies and separate specific laws for HOA's

as for your original question, i believe that in the absence of case law, i would assume that not being allowed to VOTE has no bearing on other aspects of the person's ownership, UNLESS those aspects are specifically tied into voting per the bylaws/cc&r's.

I would tend to allow any owner, voting/current on their assessment or not, to access records, etc., unless i have other reason not to.
DonnaS
(Tennessee)

Posts:5671


07/08/2008 11:32 AM  

Claude and Brian,

Florida Sunshine Laws specifically state in 2 different paragraphs that HOA's are exempt from the Sunshine Laws because of Statutes 720 governing them have open meeting requirements which are slightly different from the Sunshine Laws. The only times that the Sunshine Laws are used in HOAs is in the event there is a zoning or building permit issues involving the county, city or municipality and the HOA. Otherwise, it is 720 that we follow for open meeting requirements.
DonnaS
(Tennessee)

Posts:5671


07/08/2008 11:34 AM  

Lets get back to Annas question which has nothing to do with open meetings or Sunshine Laws. I would never make a call on this felon issue. The courts give felons rights and many times they differ from individual to individual. This is food for the attorneys.
BradP
(Kansas)

Posts:2640


07/08/2008 11:36 AM  
Posted By DonnaS on 07/08/2008 11:34 AM

Lets get back to Annas question which has nothing to do with open meetings or Sunshine Laws. I would never make a call on this felon issue. The courts give felons rights and many times they differ from individual to individual. This is food for the attorneys.




I agree with Donna, this is why you have a lawyer, for these questions. To me I don't understand the law restricting them from voting for 5 years, what is the reasoning behind that?
DonnaS
(Tennessee)

Posts:5671


07/08/2008 11:41 AM  


EXACTLY!!!! Once they paid their dues, they do have a right to prove themselves as useful parts of society. Screw up again??, then that's another story.

If a felon buys a condo, he is required to pay dues or maintenances. If he is paying, he should have the right to vote, review docs and be a part of the HOA. To me ---- - no Board has the right to treat him differently than any other owner.
GlenL
(Ohio)

Posts:5109


07/08/2008 11:45 AM  
I'm with Brad and I know you posters from Florida didn't write the law but what justification is there from preventing a felon from voting on matters that concern his legal (presumably) property? It's one thing to prevent them from voting for public officials but HOA matters do not make sense.

"Common sense is like deodorant--the people who need it most never use it."
BradP
(Kansas)

Posts:2640


07/08/2008 2:12 PM  
I am not up on my felon laws...but really if you do your sentence and are released into society shouldn't you have the same freedoms as everyone else unless it poses a risk to society? I can see gun restrictions, registration for offenders, but honestly what does their having to vote for a public official do to endanger anyone?
GlenL
(Ohio)

Posts:5109


07/08/2008 3:39 PM  
For the most part it doesn't make sense but probably the people that convict the offenders are afraid these people will vote against them at re-election time it endangers their job.

"Common sense is like deodorant--the people who need it most never use it."
AnnaD2
(Florida)

Posts:935


07/08/2008 3:40 PM  
I'm going to jump back into the mix here. I really agree with what a lot of you have said! A convicted felon buys a unit and pays their maintenance fees, yet has no say in where they live? Where is the justice in that???

Just for the record---we have not denied any felons from viewing the "official records" of our association, if they are an owner.

Our "special" little felon was our board president, five years ago, stole almost $5000.00 out of the association checking account for personal use (proven), went all over the county writing bad checks, got caught, sentenced to prison, just got out this February, denied reduced felony probation time, has one more year of felony probation, is back living on the property and is causing havoc.

So no, we don't want to deny her her personal rights as being a "member in good standing" for paying her maintenance fees.

I just don't know why they enact these laws. Of course I'm saying this tongue in cheek.....but this is an example of maybe why?
BruceF1
(Connecticut)

Posts:2466


07/08/2008 3:45 PM  
Posted By AnnaD2 on 07/08/2008 9:50 AM
Hi Everybody!

As most of you in Florida know, with the new state statutes for condos, convicted felons who have had their rights restored for more than five years are now able to vote at their associations.

My question concerns those who are still on felony probation. Since they are NOT able to vote at condo associations do they also lose other rights within the association? In particular, are they allowed to review official association records and documents?

Thanks all who reply!



Anna,

Where does it say convicted felons can't vote in a Condominium or Home Owners Association?

I'd be very cautious about trying to apply laws regarding convicted felons that apply to rights on governmental issues to issues regarding Condominium or Home Owners Associations. I can understand not allowing convicted felons to vote in government elections, but not allowing them to vote on condominium or homeowners association matters just doesn't make any sense to me.

Now, I'm not as familiar with Florida laws as some other people might be, but I did live in Florida for several years so I have some familiarity with them, and I was a member of an HOA there. Furthermore, I checked out Florida Statute Chapter 718 for 2007 and nowhere could I find any reference stating that convicted felons couldn't vote.

In fact, Chapter 718 states:
"718.106 Condominium parcels; appurtenances; possession and enjoyment.--
(1) A condominium parcel created by the declaration is a separate parcel of real property, even though the condominium is created on a leasehold.
(2) There shall pass with a unit, as appurtenances thereto:
(d) Membership in the association designated in the declaration, with the full voting rights appertaining thereto."

That says to me that if you purchase and own a unit, whether you've been a convicted felon or not, you have all the rights of membership in the association, including the right to vote. Can a convicted felon buy property? I haven't checked, but I'd guess Chapter 720 regarding Homeowners Associations says something similar regarding an owner's rights. Most likely, the statute covering not-for-profit corporations doesn't include any such prohibition either. So where does this so-called law saying convicted felons can't vote in condo associations or homeowners associations exist?

The only reason states can even prohibit convicted felons from voting in government elections in the first place is because of the 14th Amendment to the U.S. Constitution. It says that all U.S. citizens can vote "except for participation in rebellion, or other crime". Clearly, the U.S. Constitution was written concerning the organization of the federal government and with the rights and powers of states and the rights of its citizens. The U.S. Constitution doesn't say anything about condominium or homeowners associations.

In Florida, the qualifications for voting can be found in the Florida Constitution; specifically, in Article VI, Suffrage and Elections. There, you will find in Section 4, Disqualifications, "(a) No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability." But, if you will read all of Article VI, you will see it pertains to government elections. There is nothing mentioned in Article VI about condominium or homeowners associations.

You might also want to think about this: Consider a non-U.S. citizen who is living in the U.S. legally with a visa; maybe even a permanent visa. Such a person can buy property, but, since that person is not a U.S. citizen, he or she cannot vote. Does that mean that person cannot vote in the association either?

The point is simply this. I think it's very dangerous to try to deny the right to vote on association matters to an individual on the basis of that person being a convicted felon because of laws that deny the right of that person to vote in governmental elections. The association may one day find itself on the wrong end of a lawsuit.


BruceF1
(Connecticut)

Posts:2466


07/08/2008 3:53 PM  
Oh, another interesting tidbit.

The 14th amendment to the U.S. Constitution not only allows states to deny voting rights to convicted felons, it prohibits states from including them as citizens for the purpose of representation in Congress. So, there is an incentive for states to restore all citizenship rights to convicted felons after some period of time. It might, in some cases, increase their representation in Congress.

As to the case of a convicted felon returning to live in an association, I don't think their voting rights should be denied, but maybe the bylaws should be written to prohibit convicted felons from being elected (or appointed) to the board or from holding office. Hopefully, no one would ever vote for them if they did run, but it's something to think about.
MicheleD
(Kentucky)

Posts:4491


07/08/2008 3:57 PM  
Bruce, I totally support your post.

Our HOA is not a governmental agency and our board members are not "councilmen" or "alderman" or whatever.

If a felon can legally hold title to the property that creates his membership relationship with the HOA, then he has voting rights within that organization by virtue of that status, IF he is a "member in good standing."

Just as he would have voting rights in an organization or corporation in which he would (legally) hold the voting class of stock.

Our CC&Rs do not list "felon" as qualifying as a member in poor standing, ineligible to vote.

The only thing that would disqualify a confirmed member of the association from being a member in good standing (and thus not eligible to vote) are:

1) outstanding CC&R violation

2) delinquent assessments.

They don't even have to be citizens of these United States.



ClaudeV
(Florida)

Posts:86


07/08/2008 7:05 PM  
This may shed some light on this issue:

http://www.flsenate.gov/data/Publications/2008/Senate/reports/interim_reports/pdf/2008-114cj.pdf

I did a "skim" read and didn't see where HOA's per se' are mentioned. If anyone wants to read the entire thing slowly, please share the Reader's Digest version of your conclusion(s)...ok?
KirkW1
(Texas)

Posts:1665


07/08/2008 7:13 PM  
I have to confess that I would never have thought of checking to see who might be a felon to try and ban them from voting in the HOA.

Having said this, I would certainly check with a reliable attorney before restricting any member from anything. I would not assume that just because the person can't vote in public elections, they are banned from HOA elections.

I also have to say that I don't know why you would worry about restricting them from viewing association records. Open viewing doesn't extend to viewing each property's financial records, or disciplinary records. So what if a felon happens to see your landscaping contract?
MicheleD
(Kentucky)

Posts:4491


07/08/2008 7:22 PM  
I haven't read it but will try to later tonight.

Here's my feeling on it, though.

When you REGISTER to vote, you must show ID etc etc etc, and, most importantly, you sign a statement of Voter Declaration, wherein if you sign the statement, even though you know it is untrue, you can be convicted and fined up to $500 and/or jailed for up to 12 months.

In Kentucky, you swear or affirm the following:

That you:

* are a U.S. Citizen
* live in Kentucky at the addressed listed
* will be at least 18 years of age on or before the next general election
* are not a convicted felon, or if you have been convicted of a felony, your civil rights have been restored by executive pardon
* have not been judged "mentally incompetent" in a court of law
* do not claim the right to vote anywhere outside of Kentucky.


Conversely, according to our documents, the ONLY requirements to vote in our HOA are:

1) be a member in good standing

That's it. Be a member and be one in good standing.

You don't have to sign any affidavits, and you don't have to be a certain age, citizen status, or even mentally capable.

You just have to be a member in good standing.

Our HOA does not have a "board of elections," nor do we have a mechanism for verifying ANYTHING outside of a potential voter's MEMBERSHIP and their MEMBERSHIP STATUS.

So I find it highly unlikely that other HOAs have the ability or inclination to do so.

And, frankly, I doubt our state's attorney general or board of elections would even care to investigate for us.

Seriously, this sounds very much like a red herring issue.

AnnaD2
(Florida)

Posts:935


07/09/2008 4:47 AM  
It may not seem fair or right, but here is the exact wording of Florida State Condominium Statutes 718 Bylaws:

Any unit owner desiring to be a candidate for board membership shall comply with subparagraph 3. A person who has been convicted of any felony by any court of record in the United States and who has not had his or her right to vote restored pursuant to law in the jurisdiction of his or her residence is not eligible for board membership.
KirkW1
(Texas)

Posts:1665


07/09/2008 5:52 AM  
Ok, two observations here:

1) At least in TX, HOAs don't have anything to do with voter registration. They are two different subjects entirely.

2) The law as posted would NOT keep a felon from voting in an HOA election. It would, however, prevent said felon from running for the BOD.

Quite honestly, it wouldn't be a bad idea to have some mechanism for checking a person's criminal history before election. That being said, if like our organization you take nominations from the floor, you need to have the computer with internet present on election night to do the check immediately.
MicheleD
(Kentucky)

Posts:4491


07/09/2008 7:03 AM  
Anna, I have no opinion as to whether it's "right" or "fair" that a felon not be able to hold a board position.

I do note, however, as Kirk has, that the restriction in the statute doesn't say that a felon cannot vote either for or against someone else running, nor whether they can or cannot vote for or against any amendments or other business up for a membership vote.

They are only precluded from running for the board.

Just sayin' . . .
BruceF1
(Connecticut)

Posts:2466


07/09/2008 8:13 AM  
Posted By AnnaD2 on 07/09/2008 4:47 AM
It may not seem fair or right, but here is the exact wording of Florida State Condominium Statutes 718 Bylaws:

Any unit owner desiring to be a candidate for board membership shall comply with subparagraph 3. A person who has been convicted of any felony by any court of record in the United States and who has not had his or her right to vote restored pursuant to law in the jurisdiction of his or her residence is not eligible for board membership.



This is another example of how easy it is to misinterpret a provision when it's taken out of context and not viewed in light of its preceding paragraphs and its title, along with the rest of the document. I think we all may do that from time to time, and it's what makes understanding these lengthly, complex documents so difficult.

Your quotation is from subparagraph 1 of section 718.112 (Bylaws), subsection (2) (Required Provisions), paragraph (d) (Unit Owner Meetings). Those titles alone tell you a lot. Section 718.112 specifies what must be included in the bylaws of the association and provides a set of default provisions ("required provisions") in the event your bylaws leaves them out. In other words, your bylaws should state that convicted felons who have not had their voting rights restored are not eligible for board membership. That's it. If your bylaws don't include such a provision, then that part of Chapter 718 does it for you. It says nothing about voting rights in the association. If it were intended that this section would prohibit convicted felons from voting in the association, then this paragraph would conflict with the provisions of Section 718.106 (2) (d), which I quoted earlier, which refers to the Declaration (which has precedence over the bylaws) and which gives statutory voting rights in the association to all unit owners in good standing.

Note also that the provision you quoted refers to "a person who has been convicted of any felony by any court of record in the United States and who has not had his or her right to vote restored pursuant to law in the JURISDICTION OF HIS OR HER RESIDENCE". A condominium or homeowners association is not a jurisdiction. A "Jurisdiction" generally refers to a governmental entity that has a court which can hear criminal and/or civil cases. Thus, a federal, or a state or county court has jurisdiction, but a homeowners association does not. The "jurisdiction of his or her residence" prohibits convicted felons who happen to live in some other state from being eligible for board membership.

Note in another post I said that I could see no reason why someone who was a convicted felon should not be able to vote in the association, but that maybe the bylaws should include a provision prohibiting such a person from being a board member or an officer. Well, it looks like, at least in Florida, your state legislature has taken care of that for you.
ClaudeV
(Florida)

Posts:86


07/09/2008 9:38 AM  
Well, if nothing else this has been an educational exercise!
AnnaD2
(Florida)

Posts:935


07/09/2008 3:22 PM  
Claude, I AGAIN agree with you!!! I always love when people "do their homework"; "voice their opinions"; and "disect" the posts here. It's how we ALL learn. There are a GREAT bunch of educated and informative people on this site. I've learned so much from everyone. Everyone responding to my original post has been respectful and polite.

Too bad we can't all move to a community together and all get along! Nah---that would never happen in a "real world"...lol

BUT THANK YOU EVERYBODY!!!!
KirkW1
(Texas)

Posts:1665


07/10/2008 9:59 AM  
By the way, I do support the idea that a convicted felon can not hold a BOD position until their (state) voting rights have been restored. Especially in Florida where that happens after a set amount of time if you "stay clean" and make restitution.

And as for the "special felon" I would personally mention this conviction openly in any annual meeting where the person had the audacity to run for the BOD again. I (and many others) just couldn't give her another chance with my association's money.

As a note, you may want to let the authorities overseeing her know that she is stirring up trouble in the neighborhood. It might affect how long until she is cleared for takeoff.
LindaC3


Posts:0


07/12/2008 10:05 AM  
http://www.tcpalm.com/news/2008/jul/12/30gtex-felons-have-right-to-vote-but-dont-know/

Posted today in the paper here about voting rights........LindaC3
MicheleD
(Kentucky)

Posts:4491


07/12/2008 3:25 PM  
Thanks, Linda.

While that was an interesting article, it still only addresses the right to vote in governmental elections, and not in HOA elections, which are two completely different entities.

People voting on business and election of a board of directors in companies and HOAs/COAs and similar do not have to register to vote with the local election board, so they very likely are not restricted to vote in those entities.

Please login to post a reply (click Member Login on the menu).
Forums > Homeowner Association > HOA Discussions > Florida-Felon voting rights



General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
HindmanSanchez Legal Notice:  (For messages posted by HindmanSanchez) This message has been prepared by HindmanSanchez for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Members of HOATalk.com should not act on this information without seeking professional counsel. Please do not send us confidential information unless you speak with one of our attorneys and get authorization to send that information to us. If you wish to initiate possible representation, please contact an attorney in our firm. Our attorneys are licensed to practice law in the state of Colorado only.

Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement