April 18, 2019
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Florida Senate - 2008 SB 2498

By Senator Bennett

21-03260D-08 20082498__

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A bill to be entitled

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An act relating to the Department of Business and

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Professional Regulation; amending s. 20.165, F.S.;

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changing the name of the Division of Florida Land Sales,

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Condominiums, and Mobile Homes to the Division of Florida

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Condominiums, Timeshares, and Mobile Homes; amending s.

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215.20, F.S.; conforming the name of the division's trust

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fund to correspond to the name change of the division;

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amending s. 450.33, F.S.; removing the requirement for a

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farm labor contractor to file a set of fingerprints with

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the department; amending s. 455.203, F.S.; authorizing the

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department to close and terminate deficient license

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applications and to approve professional license

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applications meeting certain criteria; amending s. 475.17,

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F.S.; revising requirements for licensure as a real estate

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broker; amending s. 475.451, F.S.; deleting requirements

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relating to the submission of certain real estate course

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rosters to the department; amending s. 489.511, F.S.;

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revising requirements for taking the electrical or alarm

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system contractor certification examination; providing

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requirements for certification; amending s. 489.515, F.S.;

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revising requirements for certification as a certified

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contractor by the Electrical Contractors' Licensing Board

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to reflect changes made to s. 489.511, F.S., by this act;

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renumbering s. 498.009, F.S., relating to the location of

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the division's offices; amending and renumbering s.

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498.011, F.S., relating to payment of per diem, mileage,

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and other expenses for division employees; providing for

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reimbursement of expenses for on-site review; deleting the

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expense reimbursement for inspection of subdivided lands;

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renumbering s. 498.013, F.S., relating to the

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authentication of records; amending and renumbering s.

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498.057, F.S., relating to service of process; deleting

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provision that service may be made by delivering a copy of

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the process to the division director; providing that the

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division can be the petitioner or the plaintiff; repealing

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498.059, 498.061, and 498.063, F.S., relating to

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regulation of land sales practices; amending s. 548.0065,

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F.S.; including amateur mixed martial arts in a provision

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relating to the authority of the Florida State Boxing

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Commission to suspend amateur matches for violation of

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certain health and safety standards; amending s. 548.008,

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F.S.; removing prohibition against holding amateur mixed

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martial arts matches in this state; amending s. 548.041,

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F.S.; providing additional licensure requirements for

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boxing participants; amending s. 718.501, F.S.; providing

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additional powers and duties of the division; providing

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for additional enforcement proceedings for carrying out

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the purposes of ch. 718, F.S.; deleting the payment of

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money by a developer to a condominium association as a

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permissible affirmative action; providing for actions of

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conservator or receiver; providing for application to

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circuit court for an order of restitution; providing for

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imposition of civil penalties and award of court costs,

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attorney's fees, and costs of investigation under certain

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circumstances; providing for contracting for investigative

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services; providing for acceptance of grants-in-aid;

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requiring the cooperation with similar agencies on

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establishment of certain procedures, standards, and forms;

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providing what constitutes completeness of notice;

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authorizing the division to issue a notice to show cause;

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providing conforming changes; amending s. 718.509, F.S.;

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revising to incorporate provisions of s. 498.019, F.S.,

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relating to the Division of Florida Condominiums,

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Timeshares, and Mobile Homes Trust Fund; revising

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provisions to conform to the change in division name;

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providing for the deposit of moneys resulting from an

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administrative final order; amending ss. 73.073, 190.009,

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721.50, 723.003, 723.006, 723.009, and 723.0611, F.S., to

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conform; providing an effective date.

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Be It Enacted by the Legislature of the State of Florida:

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     Section 1.  Paragraph (d) of subsection (2) of section

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20.165, Florida Statutes, is amended to read:

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     20.165  Department of Business and Professional

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Regulation.--There is created a Department of Business and

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Professional Regulation.

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     (2)  The following divisions of the Department of Business

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and Professional Regulation are established:

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     (d) Division of Florida Land Sales, Condominiums,

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Timeshares, and Mobile Homes.

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     Section 2.  Subsection (2) of section 73.073, Florida

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Statutes, is amended to read:

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     73.073  Eminent domain procedure with respect to condominium

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common elements.--

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     (2)  With respect to the exercise of eminent domain or a

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negotiated sale for the purchase or taking of a portion of the

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common elements of a condominium, the condemning authority shall

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have the responsibility of contacting the condominium association

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and acquiring the most recent rolls indicating the names of the

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unit owners or contacting the appropriate taxing authority to

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obtain the names of the owners of record on the tax rolls.

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Notification shall thereupon be sent by certified mail, return

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receipt requested, to the unit owners of record of the

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condominium units by the condemning authority indicating the

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intent to purchase or take the required property and requesting a

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response from the unit owner. The condemning authority shall be

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responsible for the expense of sending notification pursuant to

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this section. Such notice shall, at a minimum, include:

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     (a)  The name and address of the condemning authority.

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     (b)  A written or visual description of the property.

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     (c)  The public purpose for which the property is needed.

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     (d)  The appraisal value of the property.

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     (e)  A clear, concise statement relating to the unit owner's

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right to object to the taking or appraisal value and the

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procedures and effects of exercising that right.

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     (f)  A clear, concise statement relating to the power of the

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association to convey the property on behalf of the unit owners

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if no objection to the taking or appraisal value is raised, and

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the effects of this alternative on the unit owner.

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The Division of Florida Land Sales, Condominiums, Timeshares, and

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Mobile Homes of the Department of Business and Professional

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Regulation may adopt, by rule, a standard form for such notice

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and may require the notice to include any additional relevant

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information.

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     Section 3.  Subsections (2) and (3) of section 190.009,

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Florida Statutes, are amended to read:

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     190.009  Disclosure of public financing.--

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     (2) The Division of Florida Land Sales, Condominiums, and

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Mobile Homes of the Department of Business and Professional

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Regulation shall ensure that disclosures made by developers

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pursuant to chapter 498 meet the requirements of subsection (1).

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     (2)(3) The Department of Community Affairs shall keep a

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current list of districts and their disclosures pursuant to this

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act and shall make such studies and reports and take such actions

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as it deems necessary.

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     Section 4.  Paragraph (e) of subsection (6) of section

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192.037, Florida Statutes, is amended to read:

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     192.037  Fee timeshare real property; taxes and assessments;

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escrow.--

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     (6)

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     (e)  On or before May 1 of each year, a statement of

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receipts and disbursements of the escrow account must be filed

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with the Division of Florida Land Sales, Condominiums,

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Timeshares, and Mobile Homes of the Department of Business and

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Professional Regulation, which may enforce this paragraph

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pursuant to s. 721.26. This statement must appropriately show the

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amount of principal and interest in such account.

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     Section 5.  Paragraph (i) of subsection (8) of section

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213.053, Florida Statutes, is amended to read:

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     213.053  Confidentiality and information sharing.--

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     (8)  Notwithstanding any other provision of this section,

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the department may provide:

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     (i)  Information relative to chapters 212 and 326 to the

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Division of Florida Land Sales, Condominiums, Timeshares, and

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Mobile Homes of the Department of Business and Professional

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Regulation in the conduct of its official duties.

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Disclosure of information under this subsection shall be pursuant

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to a written agreement between the executive director and the

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agency. Such agencies, governmental or nongovernmental, shall be

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bound by the same requirements of confidentiality as the

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Department of Revenue. Breach of confidentiality is a misdemeanor

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of the first degree, punishable as provided by s. 775.082 or s.

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     Section 6.  Paragraph (d) of subsection (4) of section

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215.20, Florida Statutes, is amended to read:

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     215.20  Certain income and certain trust funds to contribute

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to the General Revenue Fund.--

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     (4)  The income of a revenue nature deposited in the

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following described trust funds, by whatever name designated, is

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that from which the appropriations authorized by subsection (3)

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shall be made:

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     (d)  Within the Department of Business and Professional

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Regulation:

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     1.  The Administrative Trust Fund.

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     2.  The Alcoholic Beverage and Tobacco Trust Fund.

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     3.  The Cigarette Tax Collection Trust Fund.

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     4. The Division of Florida Land Sales, Condominiums,

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Timeshares, and Mobile Homes Trust Fund.

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     5.  The Hotel and Restaurant Trust Fund, with the exception

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of those fees collected for the purpose of funding of the

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hospitality education program as stated in s. 509.302.

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     6.  The Professional Regulation Trust Fund.

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     7.  The trust funds administered by the Division of Pari-

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mutuel Wagering.

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The enumeration of the foregoing moneys or trust funds shall not

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prohibit the applicability thereto of s. 215.24 should the

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Governor determine that for the reasons mentioned in s. 215.24

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the money or trust funds should be exempt herefrom, as it is the

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purpose of this law to exempt income from its force and effect

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when, by the operation of this law, federal matching funds or

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contributions or private grants to any trust fund would be lost

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to the state.

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     Section 7.  Subsection (2) of section 326.002, Florida

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Statutes, is amended to read:

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     326.002  Definitions.--As used in ss. 326.001-326.006, the

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term:

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     (2) "Division" means the Division of Florida Land Sales,

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Condominiums, Timeshares, and Mobile Homes of the Department of

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Business and Professional Regulation.

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     Section 8.  Paragraph (d) of subsection (2) and subsection

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(3) of section 326.006, Florida Statutes, are amended to read:

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     326.006  Powers and duties of division.--

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     (2)  The division has the power to enforce and ensure

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compliance with the provisions of this chapter and rules adopted

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under this chapter relating to the sale and ownership of yachts

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and ships. In performing its duties, the division has the

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following powers and duties:

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     (d)  Notwithstanding any remedies available to a yacht or

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ship purchaser, if the division has reasonable cause to believe

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that a violation of any provision of this chapter or rule adopted

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under this chapter has occurred, the division may institute

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enforcement proceedings in its own name against any broker or

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salesperson or any of his or her assignees or agents, or against

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any unlicensed person or any of his or her assignees or agents,

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as follows:

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     1.  The division may permit a person whose conduct or

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actions are under investigation to waive formal proceedings and

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enter into a consent proceeding whereby orders, rules, or letters

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of censure or warning, whether formal or informal, may be entered

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against the person.

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     2.  The division may issue an order requiring the broker or

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salesperson or any of his or her assignees or agents, or

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requiring any unlicensed person or any of his or her assignees or

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agents, to cease and desist from the unlawful practice and take

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such affirmative action as in the judgment of the division will

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carry out the purposes of this chapter.

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     3.  The division may bring an action in circuit court on

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behalf of a class of yacht or ship purchasers for declaratory

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relief, injunctive relief, or restitution.

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     4.  The division may impose a civil penalty against a broker

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or salesperson or any of his or her assignees or agents, or

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against an unlicensed person or any of his or her assignees or

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agents, for any violation of this chapter or a rule adopted under

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this chapter. A penalty may be imposed for each day of continuing

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violation, but in no event may the penalty for any offense exceed

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$10,000. All amounts collected must be deposited with the Chief

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Financial Officer to the credit of the Division of Florida Land

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Sales, Condominiums, Timeshares, and Mobile Homes Trust Fund. If

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a broker, salesperson, or unlicensed person working for a broker,

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fails to pay the civil penalty, the division shall thereupon

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issue an order suspending the broker's license until such time as

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the civil penalty is paid or may pursue enforcement of the

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penalty in a court of competent jurisdiction. The order imposing

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the civil penalty or the order of suspension may not become

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effective until 20 days after the date of such order. Any action

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commenced by the division must be brought in the county in which

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the division has its executive offices or in the county where the

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violation occurred.

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     (3)  All fees must be deposited in the Division of Florida

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Land Sales, Condominiums, Timeshares, and Mobile Homes Trust Fund

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as provided by law.

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     Section 9.  Subsection (18) of section 380.05, Florida

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Statutes, is amended to read:

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     380.05  Areas of critical state concern.--

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     (18)  Neither the designation of an area of critical state

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concern nor the adoption of any regulations for such an area

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shall in any way limit or modify the rights of any person to

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complete any development that was has been authorized by

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registration of a subdivision pursuant to former chapter 498 or

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former chapter 478, by recordation pursuant to local subdivision

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plat law, or by a building permit or other authorization to

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commence development on which there has been reliance and a

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change of position, and which registration or recordation was

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accomplished, or which permit or authorization was issued, prior

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to the approval under subsection (6), or the adoption under

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subsection (8), of land development regulations for the area of

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critical state concern. If a developer has by his or her actions

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in reliance on prior regulations obtained vested or other legal

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rights that in law would have prevented a local government from

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changing those regulations in a way adverse to the developer's

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interests, nothing in this chapter authorizes any governmental

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agency to abridge those rights.

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     Section 10.  Subsection (20) of section 380.06, Florida

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Statutes, is amended to read:

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     380.06  Developments of regional impact.--

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     (20)  VESTED RIGHTS.--Nothing in this section shall limit or

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modify the rights of any person to complete any development that

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was has been authorized by registration of a subdivision pursuant

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to former chapter 498, by recordation pursuant to local

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subdivision plat law, or by a building permit or other

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authorization to commence development on which there has been

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reliance and a change of position and which registration or

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recordation was accomplished, or which permit or authorization

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was issued, prior to July 1, 1973. If a developer has, by his or

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her actions in reliance on prior regulations, obtained vested or

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other legal rights that in law would have prevented a local

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government from changing those regulations in a way adverse to

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the developer's interests, nothing in this chapter authorizes any

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governmental agency to abridge those rights.

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     (a)  For the purpose of determining the vesting of rights

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under this subsection, approval pursuant to local subdivision

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plat law, ordinances, or regulations of a subdivision plat by

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formal vote of a county or municipal governmental body having

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jurisdiction after August 1, 1967, and prior to July 1, 1973, is

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sufficient to vest all property rights for the purposes of this

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subsection; and no action in reliance on, or change of position

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concerning, such local governmental approval is required for

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vesting to take place. Anyone claiming vested rights under this

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paragraph must so notify the department in writing by January 1,

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1986. Such notification shall include information adequate to

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document the rights established by this subsection. When such

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notification requirements are met, in order for the vested rights

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authorized pursuant to this paragraph to remain valid after June

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30, 1990, development of the vested plan must be commenced prior

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to that date upon the property that the state land planning

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agency has determined to have acquired vested rights following

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the notification or in a binding letter of interpretation. When

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the notification requirements have not been met, the vested

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rights authorized by this paragraph shall expire June 30, 1986,

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unless development commenced prior to that date.

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     (b)  For the purpose of this act, the conveyance of, or the

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agreement to convey, property to the county, state, or local

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government as a prerequisite to zoning change approval shall be

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construed as an act of reliance to vest rights as determined

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under this subsection, provided such zoning change is actually

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granted by such government.

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     Section 11.  Paragraph (a) of subsection (4) of section

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380.0651, Florida Statutes, is amended to read:

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     380.0651  Statewide guidelines and standards.--

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     (4)  Two or more developments, represented by their owners

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or developers to be separate developments, shall be aggregated

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and treated as a single development under this chapter when they

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are determined to be part of a unified plan of development and

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are physically proximate to one other.

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     (a)  The criteria of two of the following subparagraphs must

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be met in order for the state land planning agency to determine

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that there is a unified plan of development:

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     1.a.  The same person has retained or shared control of the

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developments;

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     b.  The same person has ownership or a significant legal or

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equitable interest in the developments; or

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     c.  There is common management of the developments

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controlling the form of physical development or disposition of

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parcels of the development.

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     2.  There is a reasonable closeness in time between the

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completion of 80 percent or less of one development and the

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submission to a governmental agency of a master plan or series of

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plans or drawings for the other development which is indicative

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of a common development effort.

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     3.  A master plan or series of plans or drawings exists

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covering the developments sought to be aggregated which have been

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submitted to a local general-purpose government, water management

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district, the Florida Department of Environmental Protection, or

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the Division of Florida Land Sales, Condominiums, Timeshares, and

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Mobile Homes for authorization to commence development. The

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existence or implementation of a utility's master utility plan

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required by the Public Service Commission or general-purpose

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local government or a master drainage plan shall not be the sole

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determinant of the existence of a master plan.

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     4.  The voluntary sharing of infrastructure that is

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indicative of a common development effort or is designated

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specifically to accommodate the developments sought to be

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aggregated, except that which was implemented because it was

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required by a local general-purpose government; water management

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district; the Department of Environmental Protection; the

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Division of Florida Land Sales, Condominiums, Timeshares, and

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Mobile Homes; or the Public Service Commission.

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     5.  There is a common advertising scheme or promotional plan

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in effect for the developments sought to be aggregated.

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     Section 12.  Paragraph (c) of subsection (4) of section

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381.0065, Florida Statutes, is amended to read:

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     381.0065  Onsite sewage treatment and disposal systems;

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regulation.--

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     (4)  PERMITS; INSTALLATION; AND CONDITIONS.--A person may

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not construct, repair, modify, abandon, or operate an onsite

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sewage treatment and disposal system without first obtaining a

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permit approved by the department. The department may issue

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permits to carry out this section, but shall not make the

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issuance of such permits contingent upon prior approval by the

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Department of Environmental Protection, except that the issuance

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of a permit for work seaward of the coastal construction control

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line established under s. 161.053 shall be contingent upon

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receipt of any required coastal construction control line permit

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from the Department of Environmental Protection. A construction

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permit is valid for 18 months from the issuance date and may be

381

extended by the department for one 90-day period under rules

382

adopted by the department. A repair permit is valid for 90 days

383

from the date of issuance. An operating permit must be obtained

384

prior to the use of any aerobic treatment unit or if the

385

establishment generates commercial waste. Buildings or

386

establishments that use an aerobic treatment unit or generate

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commercial waste shall be inspected by the department at least

388

annually to assure compliance with the terms of the operating

389

permit. The operating permit for a commercial wastewater system

390

is valid for 1 year from the date of issuance and must be renewed

391

annually. The operating permit for an aerobic treatment unit is

392

valid for 2 years from the date of issuance and must be renewed

393

every 2 years. If all information pertaining to the siting,

394

location, and installation conditions or repair of an onsite

395

sewage treatment and disposal system remains the same, a

396

construction or repair permit for the onsite sewage treatment and

397

disposal system may be transferred to another person, if the

398

transferee files, within 60 days after the transfer of ownership,

399

an amended application providing all corrected information and

400

proof of ownership of the property. There is no fee associated

401

with the processing of this supplemental information. A person

402

may not contract to construct, modify, alter, repair, service,

403

abandon, or maintain any portion of an onsite sewage treatment

404

and disposal system without being registered under part III of

405

chapter 489. A property owner who personally performs

406

construction, maintenance, or repairs to a system serving his or

407

her own owner-occupied single-family residence is exempt from

408

registration requirements for performing such construction,

409

maintenance, or repairs on that residence, but is subject to all

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permitting requirements. A municipality or political subdivision

411

of the state may not issue a building or plumbing permit for any

412

building that requires the use of an onsite sewage treatment and

413

disposal system unless the owner or builder has received a

414

construction permit for such system from the department. A

415

building or structure may not be occupied and a municipality,

416

political subdivision, or any state or federal agency may not

417

authorize occupancy until the department approves the final

418

installation of the onsite sewage treatment and disposal system.

419

A municipality or political subdivision of the state may not

420

approve any change in occupancy or tenancy of a building that

421

uses an onsite sewage treatment and disposal system until the

422

department has reviewed the use of the system with the proposed

423

change, approved the change, and amended the operating permit.

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     (c) Notwithstanding the provisions of paragraphs (a) and

425

(b), for subdivisions platted of record on or before October 1,

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1991, when a developer or other appropriate entity has previously

427

made or makes provisions, including financial assurances or other

428

commitments, acceptable to the Department of Health, that a

429

central water system will be installed by a regulated public

430

utility based on a density formula, private potable wells may be

431

used with onsite sewage treatment and disposal systems until the

432

agreed-upon densities are reached. The department may consider

433

assurances filed with the Department of Business and Professional

434

Regulation under chapter 498 in determining the adequacy of the

435

financial assurance required by this paragraph. In a subdivision

436

regulated by this paragraph, the average daily sewage flow may

437

not exceed 2,500 gallons per acre per day. This section does not

438

affect the validity of existing prior agreements. After October

439

1, 1991, the exception provided under this paragraph is not

440

available to a developer or other appropriate entity.

441

     Section 13.  Subsections (8) through (12) of section 450.33,

442

Florida Statutes, are amended to read:

443

     450.33  Duties of farm labor contractor.--Every farm labor

444

contractor must:

445

     (8) File, within such time as the department may prescribe,

446

a set of his or her fingerprints.

447

     (8)(9) Produce evidence to the department that each vehicle

448

he or she uses for the transportation of employees complies with

449

the requirements and specifications established in chapter 316,

450

s. 316.622, or Pub. L. No. 93-518 as amended by Pub. L. No. 97-

451

470 meeting Department of Transportation requirements or, in lieu

452

thereof, bears a valid inspection sticker showing that the

453

vehicle has passed the inspection in the state in which the

454

vehicle is registered.

455

     (9)(10) Comply with all applicable statutes, rules, and

456

regulations of the United States and of the State of Florida for

457

the protection or benefit of labor, including, but not limited

458

to, those providing for wages, hours, fair labor standards,

459

social security, workers' compensation, unemployment

460

compensation, child labor, and transportation.

461

     (10)(11) Maintain accurate daily field records for each

462

employee actually paid by the farm labor contractor reflecting

463

the hours worked for the farm labor contractor and, if paid by

464

unit, the number of units harvested and the amount paid per unit.

465

     (11)(12) Clearly display on each vehicle used to transport

466

migrant or seasonal farm workers a display sticker issued by the

467

department, which states that the vehicle is authorized by the

468

department to transport farm workers and the expiration date of

469

the authorization.

470

     Section 14.  Subsection (10) is added to section 455.203,

471

Florida Statutes, to read:

472

     455.203  Department; powers and duties.--The department, for

473

the boards under its jurisdiction, shall:

474

     (10) Have authority to:

475

     (a) Close and terminate deficient license application files

476

2 years after the board or the department notifies the applicant

477

of the deficiency; and

478

     (b) Approve applications for professional licenses that

479

meet all statutory and rule requirements for licensure.

480

     Section 15.  Subsection (5) of section 455.116, Florida

481

Statutes, is amended to read:

482

     455.116  Regulation trust funds.--The following trust funds

483

shall be placed in the department:

484

     (5) Division of Florida Land Sales, Condominiums,

485

Timeshares, and Mobile Homes Trust Fund.

486

     Section 16.  Paragraph (b) of subsection (2) of section

487

475.17, Florida Statutes, is amended to read:

488

     475.17  Qualifications for practice.--

489

     (2)

490

     (b)  A person may not be licensed as a real estate broker

491

unless, in addition to the other requirements of law, the person

492

has held:

493

     1.  An active real estate sales associate's license for at

494

least 24 12 months during the preceding 5 years in the office of

495

one or more real estate brokers licensed in this state or any

496

other state, territory, or jurisdiction of the United States or

497

in any foreign national jurisdiction;

498

     2.  A current and valid real estate sales associate's

499

license for at least 24 12 months during the preceding 5 years in

500

the employ of a governmental agency for a salary and performing

501

the duties authorized in this part for real estate licensees; or

502

     3.  A current and valid real estate broker's license for at

503

least 24 12 months during the preceding 5 years in any other

504

state, territory, or jurisdiction of the United States or in any

505

foreign national jurisdiction.

506

507

This paragraph does not apply to a person employed as a real

508

estate investigator by the Division of Real Estate, provided the

509

person has been employed as a real estate investigator for at

510

least 24 months. The person must be currently employed as a real

511

estate investigator to sit for the real estate broker's

512

examination and have held a valid and current sales associate's

513

license for at least 12 months.

514

     Section 17.  Subsection (9) of section 475.451, Florida

515

Statutes, is amended to read:

516

     475.451  Schools teaching real estate practice.--

517

     (9)(a) Each school permitholder of a proprietary real

518

estate school, each chief administrative person of such an

519

institution, or each course sponsor shall deliver to the

520

department, in a format acceptable to the department, a copy of

521

the classroom course roster of courses that require satisfactory

522

completion of an examination no later than 30 days beyond the end

523

of the calendar month in which the course was completed.

524

     (b) The course roster shall consist of the institution or

525

school name and permit number, if applicable, the instructor's

526

name and permit number, if applicable, course title, beginning

527

and ending dates of the course, number of course hours, course

528

location, if applicable, each student's full name and license

529

number, if applicable, each student's mailing address, and the

530

numerical grade each student achieved. The course roster shall

531

also include the signature of the school permitholder, the chief

532

administrative person, or the course sponsor.

533

     Section 18.  Section 475.455, Florida Statutes, is amended

534

to read:

535

     475.455  Exchange of disciplinary information.--The

536

commission shall inform the Division of Florida Land Sales,

537

Condominiums, Timeshares, and Mobile Homes of the Department of

538

Business and Professional Regulation of any disciplinary action

539

the commission has taken against any of its licensees. The

540

division shall inform the commission of any disciplinary action

541

the division has taken against any broker or sales associate

542

registered with the division.

543

     Section 19.  Section 489.511, Florida Statutes, is amended

544

to read:

545

     489.511  Certification; application; examinations;

546

endorsement.--

547

     (1)(a) Any person who is at least 18 years of age may take

548

the certification examination.

549

     (b) Any person desiring to be certified as a contractor

550

shall apply to the department in writing and must meet the

551

following criteria: to take the certification examination.

552

     (2)(a) A person shall be entitled to take the certification

553

examination for the purpose of determining whether he or she is

554

qualified to engage in contracting throughout the state as a

555

contractor if the person:

556

     1. Is at least 18 years of age;

557

     1.2. Be Is of good moral character;

558

     2. Pass the certification examination, achieving a passing

559

grade as established by board rule; and

560

     3. Meet Meets eligibility requirements according to one of

561

the following criteria:

562

     a.  Has, within the 6 years immediately preceding the filing

563

of the application, at least 3 years' proven management

564

experience in the trade or education equivalent thereto, or a

565

combination thereof, but not more than one-half of such

566

experience may be educational equivalent;

567

     b.  Has, within the 8 years immediately preceding the filing

568

of the application, at least 4 years' experience as a supervisor

569

or contractor in the trade for which he or she is making

570

application;

571

     c.  Has, within the 12 years immediately preceding the

572

filing of the application, at least 6 years of comprehensive

573

training, technical education, or supervisory experience

574

associated with an electrical or alarm system contracting

575

business, or at least 6 years of technical experience in

576

electrical or alarm system work with the Armed Forces or a

577

governmental entity;

578

     d.  Has, within the 12 years immediately preceding the

579

filing of the application, been licensed for 3 years as a

580

professional engineer who is qualified by education, training, or

581

experience to practice electrical engineering; or

582

     e.  Has any combination of qualifications under sub-

583

subparagraphs a.-c. totaling 6 years of experience.

584

     (c)(b) For purposes of this subsection, "supervisor" means

585

a person having the experience gained while having the general

586

duty of overseeing the technical duties of the trade, provided

587

that such experience is gained by a person who is able to perform

588

the technical duties of the trade without supervision.

589

     (d)(c) For purposes of this subsection, at least 40 percent

590

of the work experience for an alarm system contractor I must be

591

in the types of fire alarm systems typically used in a commercial

592

setting.

593

     (2)(3) The board may determine by rule the number of times

594

per year the applicant may take the examination and after three

595

unsuccessful attempts may On or after October 1, 1998, every

596

applicant who is qualified shall be allowed to take the

597

examination three times, notwithstanding the number of times the

598

applicant has previously failed the examination. If an applicant

599

fails the examination three times after October 1, 1998, the

600

board shall require the applicant to complete additional college-

601

level or technical education courses in the areas of deficiency,

602

as determined by the board, as a condition of future eligibility

603

to take the examination. The applicant must also submit a new

604

application that meets all certification requirements at the time

605

of its submission and must pay all appropriate fees.

606

     (3)(4)(a) "Good moral character" means a personal history

607

of honesty, fairness, and respect for the rights of others and

608

for laws of this state and nation.

609

     (b)  The board may determine that an individual applying for

610

certification is ineligible to take the examination for failure

611

to satisfy the requirement of good moral character only if:

612

     1.  There is a substantial connection between the lack of

613

good moral character of the individual and the professional

614

responsibilities of a certified contractor; and

615

     2.  The finding by the board of lack of good moral character

616

is supported by clear and convincing evidence.

617

     (c)  When an individual is found to be unqualified for

618

certification examination because of a lack of good moral

619

character, the board shall furnish such individual a statement

620

containing the findings of the board, a complete record of the

621

evidence upon which the determination was based, and a notice of

622

the rights of the individual to a rehearing and appeal.

623

     (4)(5) The board shall, by rule, designate those types of

624

specialty electrical or alarm system contractors who may be

625

certified under this part. The limit of the scope of work and

626

responsibility of a certified specialty contractor shall be

627

established by board rule. A certified specialty contractor

628

category exists as an optional statewide licensing category.

629

Qualification for certification in a specialty category created

630

by rule shall be the same as set forth in paragraph (1)(b)

631

(2)(a). The existence of a specialty category created by rule

632

does not itself create any licensing requirement; however,

633

neither does its optional nature remove any licensure requirement

634

established elsewhere in this part.

635

     (5)(6) The board shall certify as qualified for

636

certification by endorsement any individual applying for

637

certification who:

638

     (a)  Meets the requirements for certification as set forth

639

in this section; has passed a national, regional, state, or

640

United States territorial licensing examination that is

641

substantially equivalent to the examination required by this

642

part; and has satisfied the requirements set forth in s. 489.521;

643

or

644

     (b)  Holds a valid license to practice electrical or alarm

645

system contracting issued by another state or territory of the

646

United States, if the criteria for issuance of such license was

647

substantially equivalent to the certification criteria that

648

existed in this state at the time the certificate was issued.

649

     (6)(7) Upon the issuance of a certificate, any previously

650

issued registered licenses for the classification in which the

651

certification is issued are rendered void.

652

     Section 20.  Paragraph (b) of subsection (1) of section

653

489.515, Florida Statutes, is amended to read:

654

     489.515  Issuance of certificates; registrations.--

655

     (1)

656

     (b)  The board shall certify as qualified for certification

657

any person who satisfies the requirements of s. 489.511, who

658

successfully passes the certification examination administered by

659

the department, achieving a passing grade as established by board

660

rule, and who submits satisfactory evidence that he or she has

661

obtained both workers' compensation insurance or an acceptable

662

exemption certificate issued by the department and public

663

liability and property damage insurance for the health, safety,

664

and welfare of the public in amounts determined by rule of the

665

board, and furnishes evidence of financial responsibility,

666

credit, and business reputation of either himself or herself or

667

the business organization he or she desires to qualify.

668

     Section 21.  Section 494.008, Florida Statutes, is amended

669

to read:

670

     494.008 Mortgages offered by land developers licensed

671

pursuant to the Florida Uniform Land Sales Practices Law;

672

requirements; prohibitions.--No mortgage loan which has a face

673

amount of $35,000 or less and is secured by vacant land

674

registered under the Florida Uniform Land Sales Practices Law,

675

chapter 498, shall be sold to a mortgagee, except a financial

676

institution, by any person unless all of the following

677

requirements are met:

678

     (1)  Each mortgage securing a note or other obligation sold

679

or offered for sale shall be eligible for a recordation as a

680

first mortgage.

681

     (2)  Each mortgage negotiated pursuant to this section must

682

include a mortgagee's title insurance policy or an opinion of

683

title, from an attorney who is licensed to practice law in this

684

state, on each parcel of land which is described in the mortgage.

685

The policy or opinion shall reflect that there are no other

686

mortgages on the property. A notice stating the priority of the

687

mortgage shall be placed on the face of each mortgage in an

688

amount over $35,000 issued pursuant to this section.

689

     (3)  Contracts to purchase a mortgage loan shall contain,

690

immediately above the purchaser's signature line, the statement

691

in 10-point boldfaced type: "This mortgage is secured by vacant

692

land subject to development at a future time." This statement

693

shall also be typed or printed in 10-point type on the face of

694

the note and mortgage sold.

695

     (4)  The most recent assessment for tax purposes made by the

696

county property appraiser of each parcel of land described in the

697

mortgage shall be furnished to each mortgagee.

698

     (5)  The mortgage broker shall record or cause to be

699

recorded all mortgages or other similar documents prior to

700

delivery of the note and mortgage to the mortgagee.

701

     (6)  All funds received by the mortgage broker pursuant to

702

this section shall promptly be deposited in the broker's trust

703

account where they shall remain until the note and mortgage are

704

fully executed and recorded.

705

     (7)  Willful failure to comply with any of the above

706

provisions shall subject the person to the penalties of s.

707

494.05.

708

     Section 22. Section 498.009, Florida Statutes, is

709

renumbered as section 718.50152, Florida Statutes.

710

     Section 23.  Section 498.011, Florida Statutes, is

711

renumbered as section 718.50153, Florida Statutes, and amended to

712

read:

713

     718.50153 498.011 Payment of per diem, mileage, and other

714

expenses to division employees.--The amount of per diem and

715

mileage and expense money paid to employees shall be as provided

716

in s. 112.061, except that the division shall establish by rule

717

the standards for reimbursement of actual verified expenses

718

incurred in connection with an on-site review inspection or

719

investigation of subdivided lands.

720

     Section 24. Section 498.013, Florida Statutes, is

721

renumbered as section 718.50154, Florida Statutes.

722

     Section 25.  Section 498.057, Florida Statutes, is

723

renumbered as section 718.50155, Florida Statutes, and amended,

724

to read:

725

     718.50155 498.057 Service of process.--

726

     (1)  In addition to the methods of service provided for in

727

the Florida Rules of Civil Procedure and the Florida Statutes,

728

service may be made and by delivering a copy of the process to

729

the director of the division, which shall be binding upon the

730

defendant or respondent if:

731

     (a) The division plaintiff, which is acting as the

732

petitioner or plaintiff may be the division, immediately sends a

733

copy of the process and of the pleading by certified mail to the

734

defendant or respondent at his or her last known address;, and

735

     (b) The division plaintiff files an affidavit of compliance

736

with this section on or before the return date of the process or

737

within the time set by the court.

738

     (2)  If any person, including any nonresident of this state,

739

allegedly engages in conduct prohibited by this chapter, or any

740

rule or order of the division, and has not filed a consent to

741

service of process, and personal jurisdiction over him or her

742

cannot otherwise be obtained in this state, the director shall be

743

authorized to receive service of process in any noncriminal

744

proceeding against that person or his or her successor which

745

grows out of the conduct and which is brought by the division

746

under this chapter or any rule or order of the division. The

747

process shall have the same force and validity as if personally

748

served. Notice shall be given as provided in subsection (1).

749

     Section 26. Sections 498.001, 498.003, 498.005, 498.007,

753

498.061, and 498.063, Florida Statutes, are repealed.

754

     Section 27.  Section 509.512, Florida Statutes, is amended

755

to read:

756

     509.512  Timeshare plan developer and exchange company

757

exemption.--Sections 509.501-509.511 do not apply to a developer

758

of a timeshare plan or an exchange company approved by the

759

Division of Florida Land Sales, Condominiums, Timeshares, and

760

Mobile Homes pursuant to chapter 721, but only to the extent that

761

the developer or exchange company engages in conduct regulated

762

under chapter 721.

763

     Section 28.  Subsection (2) of section 517.301, Florida

764

Statutes, is amended to read:

765

     517.301  Fraudulent transactions; falsification or

766

concealment of facts.--

767

     (2)  For purposes of ss. 517.311 and 517.312 and this

768

section, the term "investment" means any commitment of money or

769

property principally induced by a representation that an economic

770

benefit may be derived from such commitment, except that the term

771

"investment" does not include a commitment of money or property

772

for:

773

     (a)  The purchase of a business opportunity, business

774

enterprise, or real property through a person licensed under

775

chapter 475 or registered under chapter 718 498; or

776

     (b)  The purchase of tangible personal property through a

777

person not engaged in telephone solicitation, where said property

778

is offered and sold in accordance with the following conditions:

779

     1.  There are no specific representations or guarantees made

780

by the offeror or seller as to the economic benefit to be derived

781

from the purchase;

782

     2.  The tangible property is delivered to the purchaser

783

within 30 days after sale, except that such 30-day period may be

784

extended by the office if market conditions so warrant; and

785

     3.  The seller has offered the purchaser a full refund

786

policy in writing, exercisable by the purchaser within 10 days of

787

the date of delivery of such tangible personal property, except

788

that the amount of such refund may not in no event shall exceed

789

the bid price in effect at the time the property is returned to

790

the seller. If the applicable sellers' market is closed at the

791

time the property is returned to the seller for a refund, the

792

amount of such refund shall be based on the bid price for such

793

property at the next opening of such market.

794

     Section 29.  Subsection (4) of section 548.0065, Florida

795

Statutes, is amended to read:

796

     548.0065  Amateur matches; sanctioning and supervision;

797

health and safety standards; compliance checks; continuation,

798

suspension, and revocation of sanctioning approval.--

799

     (4)  Any member of the commission or the executive director

800

of the commission may suspend the approval of an amateur

801

sanctioning organization for failure to supervise amateur matches

802

or to enforce the approved health and safety standards required

803

under this chapter, provided that the suspension complies with

804

the procedures for summary suspensions in s. 120.60(6). At any

805

amateur boxing, or kickboxing, or mixed martial arts contest, any

806

member of the commission or a representative of the commission

807

may immediately suspend one or more matches in an event whenever

808

it appears that the match or matches violate the health and

809

safety standards established by rule as required by this chapter.

810

A law enforcement officer may assist any member of the commission

811

or a representative of the commission to enforce an order to stop

812

a contest if called upon to do so by a member of the commission

813

or a representative of the commission.

814

     Section 30.  Subsections (2), (3), and (4) of section

815

548.008, Florida Statutes, are amended to read:

816

     548.008  Prohibited competitions.--

817

     (2) No amateur mixed martial arts match may be held in this

818

state.

819

     (2)(3) No professional match may be held in this state

820

unless it meets the requirements for holding the match as

821

provided in this chapter and the rules adopted by the commission.

822

     (3)(4)(a) Any person participating in a match prohibited

823

under this section, knowing the match to be prohibited, commits a

824

misdemeanor of the second degree, punishable as provided in s.

825

775.082 or s. 775.083.

826

     (b)  Any person holding, promoting, or sponsoring a match

827

prohibited under this section commits a felony of the third

828

degree, punishable as provided in s. 775.082, s. 775.083, or s.

830

     Section 31.  Subsection (1) of section 548.041, Florida

831

Statutes, is amended to read:

832

     548.041  Age, condition, and suspension of participants.--

833

     (1) A person may shall not be licensed as a participant,

834

and the license of a any participant shall be suspended or

835

revoked, if such person:

836

     (a)  Is under the age of 18;

837

     (b)  Has participated in a match in this state which was not

838

sanctioned by the commission or by a Native American commission

839

properly constituted under federal law; or

840

     (c)  Does not meet certain health and medical examination

841

conditions as required by rule of the commission;.

842

     (d) Has not competed in 10 amateur boxing events prior to

843

licensure; or

844

     (e) Has not competed in 5 amateur mixed martial arts events

845

prior to licensure.

846

     Section 32.  Subsection (1) of section 559.935, Florida

847

Statutes, is amended to read:

848

     559.935  Exemptions.--

849

     (1)  This part does not apply to:

850

     (a)  A bona fide employee of a seller of travel who is

851

engaged solely in the business of her or his employer;

852

     (b)  Any direct common carrier of passengers or property

853

regulated by an agency of the Federal Government or employees of

854

such carrier when engaged solely in the transportation business

855

of the carrier as identified in the carrier's certificate;

856

     (c)  An intrastate common carrier of passengers or property

857

selling only transportation as defined in the applicable state or

858

local registration or certification, or employees of such carrier

859

when engaged solely in the transportation business of the

860

carrier;

861

     (d)  Hotels, motels, or other places of public accommodation

862

selling public accommodations, or employees of such hotels,

863

motels, or other places of public accommodation, when engaged

864

solely in making arrangements for lodging, accommodations, or

865

sightseeing tours within the state, or taking reservations for

866

the traveler with times, dates, locations, and accommodations

867

certain at the time the reservations are made, provided that

868

hotels and motels registered with the Department of Business and

869

Professional Regulation pursuant to chapter 509 are excluded from

870

the provisions of this chapter;

871

     (e)  Persons involved solely in the rental, leasing, or sale

872

of residential property;

873

     (f)  Persons involved solely in the rental, leasing, or sale

874

of transportation vehicles;

875

     (g)  Persons who make travel arrangements for themselves;

876

for their employees or agents; for distributors, franchisees, or

877

dealers of the persons' products or services; for entities which

878

are financially related to the persons; or for the employees or

879

agents of the distributor, franchisee, or dealer or financially

880

related entity;

881

     (h)  A developer of a timeshare plan or an exchange company

882

approved by the Division of Florida Land Sales, Condominiums,

883

Timeshares, and Mobile Homes pursuant to chapter 721, but only to

884

the extent that the developer or exchange company engages in

885

conduct regulated under chapter 721; or

886

     (i)  Persons or entities engaged solely in offering diving

887

services, including classes and sales or rentals of equipment,

888

when engaged in making any prearranged travel-related or tourist-

889

related services in conjunction with a primarily dive-related

890

event.

891

     Section 33.  Subsection (17) of section 718.103, Florida

892

Statutes, is amended to read:

893

     718.103  Definitions.--As used in this chapter, the term:

894

     (17) "Division" means the Division of Florida Land Sales,

895

Condominiums, Timeshares, and Mobile Homes of the Department of

896

Business and Professional Regulation.

897

     Section 34.  Paragraph (c) of subsection (4) of section

898

718.105, Florida Statutes, is amended to read:

899

     718.105  Recording of declaration.--

900

     (4)

901

     (c)  If the sum of money held by the clerk has not been paid

902

to the developer or association as provided in paragraph (b)

903

within by 3 years after the date the declaration was originally

904

recorded, the clerk in his or her discretion may notify, in

905

writing, the registered agent of the association that the sum is

906

still available and the purpose for which it was deposited. If

907

the association does not record the certificate within 90 days

908

after the clerk has given the notice, the clerk may disburse the

909

money to the developer. If the developer cannot be located, the

910

clerk shall disburse the money to the Division of Florida Land

911

Sales, Condominiums, Timeshares, and Mobile Homes for deposit in

912

the Division of Florida Land Sales, Condominiums, Timeshares, and

913

Mobile Homes Trust Fund.

914

     Section 35.  Subsection (4) of section 718.1255, Florida

915

Statutes, is amended to read:

916

     718.1255  Alternative dispute resolution; voluntary

917

mediation; mandatory nonbinding arbitration; legislative

918

findings.--

919

     (4)  MANDATORY NONBINDING ARBITRATION AND MEDIATION OF

920

DISPUTES.--The Division of Florida Land Sales, Condominiums,

921

Timeshares, and Mobile Homes of the Department of Business and

922

Professional Regulation shall employ full-time attorneys to act

923

as arbitrators to conduct the arbitration hearings provided by

924

this chapter. The division may also certify attorneys who are not

925

employed by the division to act as arbitrators to conduct the

926

arbitration hearings provided by this section. No person may be

927

employed by the department as a full-time arbitrator unless he or

928

she is a member in good standing of The Florida Bar. The

929

department shall adopt promulgate rules of procedure to govern

930

such arbitration hearings including mediation incident thereto.

931

The decision of an arbitrator shall be final; however, such a

932

decision shall not be deemed final agency action. Nothing in this

933

provision shall be construed to foreclose parties from proceeding

934

in a trial de novo unless the parties have agreed that the

935

arbitration is binding. If such judicial proceedings are

936

initiated, the final decision of the arbitrator shall be

937

admissible in evidence in the trial de novo.

938

     (a)  Prior to the institution of court litigation, a party

939

to a dispute shall petition the division for nonbinding

940

arbitration. The petition must be accompanied by a filing fee in

941

the amount of $50. Filing fees collected under this section must

942

be used to defray the expenses of the alternative dispute

943

resolution program.

944

     (b)  The petition must recite, and have attached thereto,

945

supporting proof that the petitioner gave the respondents:

946

     1.  Advance written notice of the specific nature of the

947

dispute;

948

     2.  A demand for relief, and a reasonable opportunity to

949

comply or to provide the relief; and

950

     3.  Notice of the intention to file an arbitration petition

951

or other legal action in the absence of a resolution of the

952

dispute.

953

954

Failure to include the allegations or proof of compliance with

955

these prerequisites requires dismissal of the petition without

956

prejudice.

957

     (c)  Upon receipt, the petition shall be promptly reviewed

958

by the division to determine the existence of a dispute and

959

compliance with the requirements of paragraphs (a) and (b). If

960

emergency relief is required and is not available through

961

arbitration, a motion to stay the arbitration may be filed. The

962

motion must be accompanied by a verified petition alleging facts

963

that, if proven, would support entry of a temporary injunction,

964

and if an appropriate motion and supporting papers are filed, the

965

division may abate the arbitration pending a court hearing and

966

disposition of a motion for temporary injunction.

967

     (d)  Upon determination by the division that a dispute

968

exists and that the petition substantially meets the requirements

969

of paragraphs (a) and (b) and any other applicable rules, a copy

970

of the petition shall forthwith be served by the division upon

971

all respondents.

972

     (e) Either Before or after the filing of the respondents'

973

answer to the petition, any party may request that the arbitrator

974

refer the case to mediation under this section and any rules

975

adopted by the division. Upon receipt of a request for mediation,

976

the division shall promptly contact the parties to determine if

977

there is agreement that mediation would be appropriate. If all

978

parties agree, the dispute must be referred to mediation.

979

Notwithstanding a lack of an agreement by all parties, the

980

arbitrator may refer a dispute to mediation at any time.

981

     (f)  Upon referral of a case to mediation, the parties must

982

select a mutually acceptable mediator. To assist in the

983

selection, the arbitrator shall provide the parties with a list

984

of both volunteer and paid mediators that have been certified by

985

the division under s. 718.501. If the parties are unable to agree

986

on a mediator within the time allowed by the arbitrator, the

987

arbitrator shall appoint a mediator from the list of certified

988

mediators. If a case is referred to mediation, the parties shall

989

attend a mediation conference, as scheduled by the parties and

990

the mediator. If any party fails to attend a duly noticed

991

mediation conference, without the permission or approval of the

992

arbitrator or mediator, the arbitrator must impose sanctions

993

against the party, including the striking of any pleadings filed,

994

the entry of an order of dismissal or default if appropriate, and

995

the award of costs and attorneys' fees incurred by the other

996

parties. Unless otherwise agreed to by the parties or as provided

997

by order of the arbitrator, a party is deemed to have appeared at

998

a mediation conference by the physical presence of the party or

999

its representative having full authority to settle without

1000

further consultation, provided that an association may comply by

1001

having one or more representatives present with full authority to

1002

negotiate a settlement and recommend that the board of

1003

administration ratify and approve such a settlement within 5 days

1004

from the date of the mediation conference. The parties shall

1005

share equally the expense of mediation, unless they agree

1006

otherwise.

1007

     (g)  The purpose of mediation as provided for by this

1008

section is to present the parties with an opportunity to resolve

1009

the underlying dispute in good faith, and with a minimum

1010

expenditure of time and resources.

1011

     (h)  Mediation proceedings must generally be conducted in

1012

accordance with the Florida Rules of Civil Procedure, and these

1013

proceedings are privileged and confidential to the same extent as

1014

court-ordered mediation. Persons who are not parties to the

1015

dispute are not allowed to attend the mediation conference

1016

without the consent of all parties, with the exception of counsel

1017

for the parties and corporate representatives designated to

1018

appear for a party. If the mediator declares an impasse after a

1019

mediation conference has been held, the arbitration proceeding

1020

terminates, unless all parties agree in writing to continue the

1021

arbitration proceeding, in which case the arbitrator's decision

1022

shall be either binding or nonbinding, as agreed upon by the

1023

parties; in the arbitration proceeding, the arbitrator shall not

1024

consider any evidence relating to the unsuccessful mediation

1025

except in a proceeding to impose sanctions for failure to appear

1026

at the mediation conference. If the parties do not agree to

1027

continue arbitration, the arbitrator shall enter an order of

1028

dismissal, and either party may institute a suit in a court of

1029

competent jurisdiction. The parties may seek to recover any costs

1030

and attorneys' fees incurred in connection with arbitration and

1031

mediation proceedings under this section as part of the costs and

1032

fees that may be recovered by the prevailing party in any

1033

subsequent litigation.

1034

     (i)  Arbitration shall be conducted according to rules

1035

adopted promulgated by the division. The filing of a petition for

1036

arbitration shall toll the applicable statute of limitations.

1037

     (j) At the request of any party to the arbitration, the

1038

such arbitrator shall issue subpoenas for the attendance of

1039

witnesses and the production of books, records, documents, and

1040

other evidence and any party on whose behalf a subpoena is issued

1041

may apply to the court for orders compelling such attendance and

1042

production. Subpoenas shall be served and shall be enforceable in

1043

the manner provided by the Florida Rules of Civil Procedure.

1044

Discovery may, in the discretion of the arbitrator, be permitted

1045

in the manner provided by the Florida Rules of Civil Procedure.

1046

Rules adopted by the division may authorize any reasonable

1047

sanctions except contempt for a violation of the arbitration

1048

procedural rules of the division or for the failure of a party to

1049

comply with a reasonable nonfinal order issued by an arbitrator

1050

which is not under judicial review.

1051

     (k)  The arbitration decision shall be presented to the

1052

parties in writing. An arbitration decision is final in those

1053

disputes in which the parties have agreed to be bound. An

1054

arbitration decision is also final if a complaint for a trial de

1055

novo is not filed in a court of competent jurisdiction in which

1056

the condominium is located within 30 days. The right to file for

1057

a trial de novo entitles the parties to file a complaint in the

1058

appropriate trial court for a judicial resolution of the dispute.

1059

The prevailing party in an arbitration proceeding shall be

1060

awarded the costs of the arbitration and reasonable attorney's

1061

fees in an amount determined by the arbitrator. Such an award

1062

shall include the costs and reasonable attorney's fees incurred

1063

in the arbitration proceeding as well as the costs and reasonable

1064

attorney's fees incurred in preparing for and attending any

1065

scheduled mediation.

1066

     (l)  The party who files a complaint for a trial de novo

1067

shall be assessed the other party's arbitration costs, court

1068

costs, and other reasonable costs, including attorney's fees,

1069

investigation expenses, and expenses for expert or other

1070

testimony or evidence incurred after the arbitration hearing if

1071

the judgment upon the trial de novo is not more favorable than

1072

the arbitration decision. If the judgment is more favorable, the

1073

party who filed a complaint for trial de novo shall be awarded

1074

reasonable court costs and attorney's fees.

1075

     (m)  Any party to an arbitration proceeding may enforce an

1076

arbitration award by filing a petition in a court of competent

1077

jurisdiction in which the condominium is located. A petition may

1078

not be granted unless the time for appeal by the filing of a

1079

complaint for trial de novo has expired. If a complaint for a

1080

trial de novo has been filed, a petition may not be granted with

1081

respect to an arbitration award that has been stayed. If the

1082

petition for enforcement is granted, the petitioner shall recover

1083

reasonable attorney's fees and costs incurred in enforcing the

1084

arbitration award. A mediation settlement may also be enforced

1085

through the county or circuit court, as applicable, and any costs

1086

and fees incurred in the enforcement of a settlement agreement

1087

reached at mediation must be awarded to the prevailing party in

1088

any enforcement action.

1089

     Section 36.  Section 718.501, Florida Statutes, is amended

1090

to read:

1091

     718.501 Powers and duties of Division of Florida Land

1092

Sales, Condominiums, Timeshares, and Mobile Homes.--

1093

     (1) The Division of Florida Land Sales, Condominiums,

1094

Timeshares, and Mobile Homes of the Department of Business and

1095

Professional Regulation, referred to as the "division" in this

1096

part, in addition to other powers and duties prescribed by

1097

chapter 498, has the power to enforce and ensure compliance with

1098

the provisions of this chapter and rules promulgated pursuant

1099

hereto relating to the development, construction, sale, lease,

1100

ownership, operation, and management of residential condominium

1101

units. In performing its duties, the division has the following

1102

powers and duties:

1103

     (a)1. The division may make necessary public or private

1104

investigations within or outside this state to determine whether

1105

any person has violated this chapter or any rule or order

1106

hereunder, to aid in the enforcement of this chapter, or to aid

1107

in the adoption of rules or forms hereunder.

1108

     2. The division may submit any official written report,

1109

worksheet, or other related paper, or a duly certified copy

1110

thereof, compiled, prepared, drafted, or otherwise made by and

1111

duly authenticated by a financial examiner or analyst to be

1112

admitted as competent evidence in any hearing in which the

1113

financial examiner or analyst is available for cross-examination

1114

and attests under oath that such documents were prepared as a

1115

result of an examination or inspection conducted pursuant to this

1116

chapter.

1117

     (b)  The division may require or permit any person to file a

1118

statement in writing, under oath or otherwise, as the division

1119

determines, as to the facts and circumstances concerning a matter

1120

to be investigated.

1121

     (c)  For the purpose of any investigation under this

1122

chapter, the division director or any officer or employee

1123

designated by the division director may administer oaths or

1124

affirmations, subpoena witnesses and compel their attendance,

1125

take evidence, and require the production of any matter which is

1126

relevant to the investigation, including the existence,

1127

description, nature, custody, condition, and location of any

1128

books, documents, or other tangible things and the identity and

1129

location of persons having knowledge of relevant facts or any

1130

other matter reasonably calculated to lead to the discovery of

1131

material evidence. Upon the failure by a person to obey a

1132

subpoena or to answer questions propounded by the investigating

1133

officer and upon reasonable notice to all persons affected

1134

thereby, the division may apply to the circuit court for an order

1135

compelling compliance.

1136

     (d)  Notwithstanding any remedies available to unit owners

1137

and associations, if the division has reasonable cause to believe

1138

that a violation of any provision of this chapter or related rule

1139

promulgated pursuant hereto has occurred, the division may

1140

institute enforcement proceedings in its own name against any

1141

developer, association, officer, or member of the board of

1142

administration, or its assignees or agents, as follows:

1143

     1.  The division may permit a person whose conduct or

1144

actions may be under investigation to waive formal proceedings

1145

and enter into a consent proceeding whereby orders, rules, or

1146

letters of censure or warning, whether formal or informal, may be

1147

entered against the person.

1148

     2.  The division may issue an order requiring the developer,

1149

association, officer, or member of the board of administration,

1150

or its assignees or agents, to cease and desist from the unlawful

1151

practice and take such affirmative action as in the judgment of

1152

the division will carry out the purposes of this chapter. Such

1153

affirmative action may include, but is not limited to, an order

1154

requiring a developer to pay moneys determined to be owed to a

1155

condominium association. If the division finds that a developer,

1156

association, officer, or member of the board of administration,

1157

or its assignees or agents, is violating or is about to violate

1158

any provision of this chapter, any rule adopted or order issued

1159

by the division, or any written agreement entered into with the

1160

division, and presents an immediate danger to the public

1161

requiring an immediate final order, it may issue an emergency

1162

cease and desist order reciting with particularity the facts

1163

underlying such findings. The emergency cease and desist order is

1164

effective for 90 days. If the division begins nonemergency cease

1165

and desist proceedings, the emergency cease and desist order

1166

remains effective until the conclusion of the proceedings under

1167

ss. 120.569 and 120.57.

1168

     3.  The division may bring an action in circuit court on

1169

behalf of a class of unit owners, lessees, or purchasers for

1170

declaratory relief, injunctive relief, or restitution.

1171

     4. The division may petition the court for the appointment

1172

of a receiver or conservator. If appointed, the receiver or

1173

conservator may take action to implement the the court order to

1174

ensure the performance of the order and to remedy any breach

1175

thereof. In addition to all other means provided by law for the

1176

enforcement of an injunction or temporary restraining order, the

1177

circuit court may impound or sequester the property of a party

1178

defendant, including books, papers, documents, and related

1179

records, and allow the examination and use of the property by the

1180

division and a court-appointed receiver or conservator.

1181

     5. The division may apply to the circuit court for an order

1182

of restitution whereby the defendant in an action brought

1183

pursuant to subparagraph 4. shall be ordered to make restitution

1184

of those sums shown by the division to have been obtained by the

1185

defendant in violation of this chapter. Such restitution shall,

1186

at the option of the court, be payable to the conservator or

1187

receiver appointed pursuant to subparagraph 4. or directly to the

1188

persons whose funds or assets were obtained in violation of this

1189

chapter.

1190

     6.4. The division may impose a civil penalty against a

1191

developer or association, or its assignee or agent, for any

1192

violation of this chapter or a rule adopted under this chapter

1193

promulgated pursuant hereto. The division may impose a civil

1194

penalty individually against any officer or board member who

1195

willfully and knowingly violates a provision of this chapter,

1196

adopted a rule adopted pursuant hereto, or a final order of the

1197

division. The term "willfully and knowingly" means that the

1198

division informed the officer or board member that his or her

1199

action or intended action violates this chapter, a rule adopted

1200

under this chapter, or a final order of the division and that the

1201

officer or board member refused to comply with the requirements

1202

of this chapter, a rule adopted under this chapter, or a final

1203

order of the division. The division, prior to initiating formal

1204

agency action under chapter 120, shall afford the officer or

1205

board member an opportunity to voluntarily comply with this

1206

chapter, a rule adopted under this chapter, or a final order of

1207

the division. An officer or board member who complies within 10

1208

days is not subject to a civil penalty. A penalty may be imposed

1209

on the basis of each day of continuing violation, but in no event

1210

shall the penalty for any offense exceed $5,000. By January 1,

1211

1998, the division shall adopt, by rule, penalty guidelines

1212

applicable to possible violations or to categories of violations

1213

of this chapter or rules adopted by the division. The guidelines

1214

must specify a meaningful range of civil penalties for each such

1215

violation of the statute and rules and must be based upon the

1216

harm caused by the violation, the repetition of the violation,

1217

and upon such other factors deemed relevant by the division. For

1218

example, the division may consider whether the violations were

1219

committed by a developer or owner-controlled association, the

1220

size of the association, and other factors. The guidelines must

1221

designate the possible mitigating or aggravating circumstances

1222

that justify a departure from the range of penalties provided by

1223

the rules. It is the legislative intent that minor violations be

1224

distinguished from those which endanger the health, safety, or

1225

welfare of the condominium residents or other persons and that

1226

such guidelines provide reasonable and meaningful notice to the

1227

public of likely penalties that may be imposed for proscribed

1228

conduct. This subsection does not limit the ability of the

1229

division to informally dispose of administrative actions or

1230

complaints by stipulation, agreed settlement, or consent order.

1231

All amounts collected shall be deposited with the Chief Financial

1232

Officer to the credit of the Division of Florida Land Sales,

1233

Condominiums, Timeshares, and Mobile Homes Trust Fund. If a

1234

developer fails to pay the civil penalty, the division shall

1235

thereupon issue an order directing that such developer cease and

1236

desist from further operation until such time as the civil

1237

penalty is paid or may pursue enforcement of the penalty in a

1238

court of competent jurisdiction. If an association fails to pay

1239

the civil penalty, the division shall thereupon pursue

1240

enforcement in a court of competent jurisdiction, and the order

1241

imposing the civil penalty or the cease and desist order will not

1242

become effective until 20 days after the date of such order. Any

1243

action commenced by the division shall be brought in the county

1244

in which the division has its executive offices or in the county

1245

where the violation occurred.

1246

     7. In addition to subparagraph 6., the division may seek

1247

the imposition of a civil penalty through the circuit court for

1248

any violation for which the division may issue a notice to show

1249

cause under paragraph (q). The civil penalty shall be at least

1250

$500 but no more than $5,000 for each violation. The court may

1251

also award to the prevailing party court costs and reasonable

1252

attorney's fees and, if the division prevails, may also award

1253

reasonable costs of investigation.

1254

     (e) The division may is authorized to prepare and

1255

disseminate a prospectus and other information to assist

1256

prospective owners, purchasers, lessees, and developers of

1257

residential condominiums in assessing the rights, privileges, and

1258

duties pertaining thereto.

1259

     (f)  The division has authority to adopt rules pursuant to

1260

ss. 120.536(1) and 120.54 to implement and enforce the provisions

1261

of this chapter.

1262

     (g)  The division shall establish procedures for providing

1263

notice to an association when the division is considering the

1264

issuance of a declaratory statement with respect to the

1265

declaration of condominium or any related document governing in

1266

such condominium community.

1267

     (h)  The division shall furnish each association which pays

1268

the fees required by paragraph (2)(a) a copy of this act,

1269

subsequent changes to this act on an annual basis, an amended

1270

version of this act as it becomes available from the Secretary of

1271

State's office on a biennial basis, and the rules adopted

1272

promulgated pursuant thereto on an annual basis.

1273

     (i)  The division shall annually provide each association

1274

with a summary of declaratory statements and formal legal

1275

opinions relating to the operations of condominiums which were

1276

rendered by the division during the previous year.

1277

     (j)  The division shall provide training programs for

1278

condominium association board members and unit owners.

1279

     (k)  The division shall maintain a toll-free telephone

1280

number accessible to condominium unit owners.

1281

     (l)  The division shall develop a program to certify both

1282

volunteer and paid mediators to provide mediation of condominium

1283

disputes. The division shall provide, upon request, a list of

1284

such mediators to any association, unit owner, or other

1285

participant in arbitration proceedings under s. 718.1255

1286

requesting a copy of the list. The division shall include on the

1287

list of volunteer mediators only the names of persons who have

1288

received at least 20 hours of training in mediation techniques or

1289

who have mediated at least 20 disputes. In order to become

1290

initially certified by the division, paid mediators must be

1291

certified by the Supreme Court to mediate court cases in either

1292

county or circuit courts. However, the division may adopt, by

1293

rule, additional factors for the certification of paid mediators,

1294

which factors must be related to experience, education, or

1295

background. Any person initially certified as a paid mediator by

1296

the division must, in order to continue to be certified, comply

1297

with the factors or requirements imposed by rules adopted by the

1298

division.

1299

     (m)  When a complaint is made, the division shall conduct

1300

its inquiry with due regard to the interests of the affected

1301

parties. Within 30 days after receipt of a complaint, the

1302

division shall acknowledge the complaint in writing and notify

1303

the complainant whether the complaint is within the jurisdiction

1304

of the division and whether additional information is needed by

1305

the division from the complainant. The division shall conduct its

1306

investigation and shall, within 90 days after receipt of the

1307

original complaint or of timely requested additional information,

1308

take action upon the complaint. However, the failure to complete

1309

the investigation within 90 days does not prevent the division

1310

from continuing the investigation, accepting or considering

1311

evidence obtained or received after 90 days, or taking

1312

administrative action if reasonable cause exists to believe that

1313

a violation of this chapter or a rule of the division has

1314

occurred. If an investigation is not completed within the time

1315

limits established in this paragraph, the division shall, on a

1316

monthly basis, notify the complainant in writing of the status of

1317

the investigation. When reporting its action to the complainant,

1318

the division shall inform the complainant of any right to a

1319

hearing pursuant to ss. 120.569 and 120.57.

1320

     (n) The division may:

1321

     1. Contract with agencies in this state or other

1322

jurisdictions to perform investigative functions; or

1323

     2. Accept grants-in-aid from any source.

1324

     (o) The division shall cooperate with similar agencies in

1325

other jurisdictions to establish uniform filing procedures and

1326

forms, public offering statements, advertising standards, and

1327

rules and common administrative practices.

1328

     (p) The division shall consider notice to a developer to be

1329

complete when it is delivered to the developer's address

1330

currently on file with the division.

1331

     (q) In addition to its enforcement authority, the division

1332

may issue a notice to show cause, which shall provide for a

1333

hearing, upon written request, in accordance with chapter 120.

1334

     (2)(a)  Effective January 1, 1992, Each condominium

1335

association which operates more than two units shall pay to the

1336

division an annual fee in the amount of $4 for each residential

1337

unit in condominiums operated by the association. If the fee is

1338

not paid by March 1, then the association shall be assessed a

1339

penalty of 10 percent of the amount due, and the association will

1340

not have standing to maintain or defend any action in the courts

1341

of this state until the amount due, plus any penalty, is paid.

1342

     (b)  All fees shall be deposited in the Division of Florida

1343

Land Sales, Condominiums, Timeshares, and Mobile Homes Trust Fund

1344

as provided by law.

1345

     Section 37.  Subsection (1) of section 718.5011, Florida

1346

Statutes, is amended to read:

1347

     718.5011  Ombudsman; appointment; administration.--

1348

     (1)  There is created an Office of the Condominium

1349

Ombudsman, to be located for administrative purposes within the

1350

Division of Florida Land Sales, Condominiums, Timeshares, and

1351

Mobile Homes. The functions of the office shall be funded by the

1352

Division of Florida Land Sales, Condominiums, Timeshares, and

1353

Mobile Homes Trust Fund. The ombudsman shall be a bureau chief of

1354

the division, and the office shall be set within the division in

1355

the same manner as any other bureau is staffed and funded.

1356

     Section 38.  Paragraph (a) of subsection (2) of section

1357

718.502, Florida Statutes, is amended to read:

1358

     718.502  Filing prior to sale or lease.--

1359

     (2)(a)  Prior to filing as required by subsection (1), and

1360

prior to acquiring an ownership, leasehold, or contractual

1361

interest in the land upon which the condominium is to be

1362

developed, a developer shall not offer a contract for purchase of

1363

a unit or lease of a unit for more than 5 years. However, the

1364

developer may accept deposits for reservations upon the approval

1365

of a fully executed escrow agreement and reservation agreement

1366

form properly filed with the Division of Florida Land Sales,

1367

Condominiums, Timeshares, and Mobile Homes. Each filing of a

1368

proposed reservation program shall be accompanied by a filing fee

1369

of $250. Reservations shall not be taken on a proposed

1370

condominium unless the developer has an ownership, leasehold, or

1371

contractual interest in the land upon which the condominium is to

1372

be developed. The division shall notify the developer within 20

1373

days of receipt of the reservation filing of any deficiencies

1374

contained therein. Such notification shall not preclude the

1375

determination of reservation filing deficiencies at a later date,

1376

nor shall it relieve the developer of any responsibility under

1377

the law. The escrow agreement and the reservation agreement form

1378

shall include a statement of the right of the prospective

1379

purchaser to an immediate unqualified refund of the reservation

1380

deposit moneys upon written request to the escrow agent by the

1381

prospective purchaser or the developer.

1382

     Section 39.  Section 718.504, Florida Statutes, is amended

1383

to read:

1384

     718.504  Prospectus or offering circular.--Every developer

1385

of a residential condominium which contains more than 20

1386

residential units, or which is part of a group of residential

1387

condominiums which will be served by property to be used in

1388

common by unit owners of more than 20 residential units, shall

1389

prepare a prospectus or offering circular and file it with the

1390

Division of Florida Land Sales, Condominiums, Timeshares, and

1391

Mobile Homes prior to entering into an enforceable contract of

1392

purchase and sale of any unit or lease of a unit for more than 5

1393

years and shall furnish a copy of the prospectus or offering

1394

circular to each buyer. In addition to the prospectus or offering

1395

circular, each buyer shall be furnished a separate page entitled

1396

"Frequently Asked Questions and Answers," which shall be in

1397

accordance with a format approved by the division and a copy of

1398

the financial information required by s. 718.111. This page

1399

shall, in readable language, inform prospective purchasers

1400

regarding their voting rights and unit use restrictions,

1401

including restrictions on the leasing of a unit; shall indicate

1402

whether and in what amount the unit owners or the association is

1403

obligated to pay rent or land use fees for recreational or other

1404

commonly used facilities; shall contain a statement identifying

1405

that amount of assessment which, pursuant to the budget, would be

1406

levied upon each unit type, exclusive of any special assessments,

1407

and which shall further identify the basis upon which assessments

1408

are levied, whether monthly, quarterly, or otherwise; shall state

1409

and identify any court cases in which the association is

1410

currently a party of record in which the association may face

1411

liability in excess of $100,000; and which shall further state

1412

whether membership in a recreational facilities association is

1413

mandatory, and if so, shall identify the fees currently charged

1414

per unit type. The division shall by rule require such other

1415

disclosure as in its judgment will assist prospective purchasers.

1416

The prospectus or offering circular may include more than one

1417

condominium, although not all such units are being offered for

1418

sale as of the date of the prospectus or offering circular. The

1419

prospectus or offering circular must contain the following

1420

information:

1421

     (1)  The front cover or the first page must contain only:

1422

     (a)  The name of the condominium.

1423

     (b)  The following statements in conspicuous type:

1424

     1.  THIS PROSPECTUS (OFFERING CIRCULAR) CONTAINS IMPORTANT

1425

MATTERS TO BE CONSIDERED IN ACQUIRING A CONDOMINIUM UNIT.

1426

     2.  THE STATEMENTS CONTAINED HEREIN ARE ONLY SUMMARY IN

1427

NATURE. A PROSPECTIVE PURCHASER SHOULD REFER TO ALL REFERENCES,

1428

ALL EXHIBITS HERETO, THE CONTRACT DOCUMENTS, AND SALES MATERIALS.

1429

     3.  ORAL REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY

1430

STATING THE REPRESENTATIONS OF THE DEVELOPER. REFER TO THIS

1431

PROSPECTUS (OFFERING CIRCULAR) AND ITS EXHIBITS FOR CORRECT

1432

REPRESENTATIONS.

1433

     (2)  Summary: The next page must contain all statements

1434

required to be in conspicuous type in the prospectus or offering

1435

circular.

1436

     (3)  A separate index of the contents and exhibits of the

1437

prospectus.

1438

     (4)  Beginning on the first page of the text (not including

1439

the summary and index), a description of the condominium,

1440

including, but not limited to, the following information:

1441

     (a)  Its name and location.

1442

     (b)  A description of the condominium property, including,

1443

without limitation:

1444

     1.  The number of buildings, the number of units in each

1445

building, the number of bathrooms and bedrooms in each unit, and

1446

the total number of units, if the condominium is not a phase

1447

condominium, or the maximum number of buildings that may be

1448

contained within the condominium, the minimum and maximum numbers

1449

of units in each building, the minimum and maximum numbers of

1450

bathrooms and bedrooms that may be contained in each unit, and

1451

the maximum number of units that may be contained within the

1452

condominium, if the condominium is a phase condominium.

1453

     2.  The page in the condominium documents where a copy of

1454

the plot plan and survey of the condominium is located.

1455

     3.  The estimated latest date of completion of constructing,

1456

finishing, and equipping. In lieu of a date, the description

1457

shall include a statement that the estimated date of completion

1458

of the condominium is in the purchase agreement and a reference

1459

to the article or paragraph containing that information.

1460

     (c)  The maximum number of units that will use facilities in

1461

common with the condominium. If the maximum number of units will

1462

vary, a description of the basis for variation and the minimum

1463

amount of dollars per unit to be spent for additional

1464

recreational facilities or enlargement of such facilities. If the

1465

addition or enlargement of facilities will result in a material

1466

increase of a unit owner's maintenance expense or rental expense,

1467

if any, the maximum increase and limitations thereon shall be

1468

stated.

1469

     (5)(a)  A statement in conspicuous type describing whether

1470

the condominium is created and being sold as fee simple interests

1471

or as leasehold interests. If the condominium is created or being

1472

sold on a leasehold, the location of the lease in the disclosure

1473

materials shall be stated.

1474

     (b)  If timeshare estates are or may be created with respect

1475

to any unit in the condominium, a statement in conspicuous type

1476

stating that timeshare estates are created and being sold in

1477

units in the condominium.

1478

     (6)  A description of the recreational and other commonly

1479

used facilities that will be used only by unit owners of the

1480

condominium, including, but not limited to, the following:

1481

     (a)  Each room and its intended purposes, location,

1482

approximate floor area, and capacity in numbers of people.

1483

     (b)  Each swimming pool, as to its general location,

1484

approximate size and depths, approximate deck size and capacity,

1485

and whether heated.

1486

     (c)  Additional facilities, as to the number of each

1487

facility, its approximate location, approximate size, and

1488

approximate capacity.

1489

     (d)  A general description of the items of personal property

1490

and the approximate number of each item of personal property that

1491

the developer is committing to furnish for each room or other

1492

facility or, in the alternative, a representation as to the

1493

minimum amount of expenditure that will be made to purchase the

1494

personal property for the facility.

1495

     (e)  The estimated date when each room or other facility

1496

will be available for use by the unit owners.

1497

     (f)1.  An identification of each room or other facility to

1498

be used by unit owners that will not be owned by the unit owners

1499

or the association;

1500

     2.  A reference to the location in the disclosure materials

1501

of the lease or other agreements providing for the use of those

1502

facilities; and

1503

     3.  A description of the terms of the lease or other

1504

agreements, including the length of the term; the rent payable,

1505

directly or indirectly, by each unit owner, and the total rent

1506

payable to the lessor, stated in monthly and annual amounts for

1507

the entire term of the lease; and a description of any option to

1508

purchase the property leased under any such lease, including the

1509

time the option may be exercised, the purchase price or how it is

1510

to be determined, the manner of payment, and whether the option

1511

may be exercised for a unit owner's share or only as to the

1512

entire leased property.

1513

     (g)  A statement as to whether the developer may provide

1514

additional facilities not described above; their general

1515

locations and types; improvements or changes that may be made;

1516

the approximate dollar amount to be expended; and the maximum

1517

additional common expense or cost to the individual unit owners

1518

that may be charged during the first annual period of operation

1519

of the modified or added facilities.

1520

1521

Descriptions as to locations, areas, capacities, numbers,

1522

volumes, or sizes may be stated as approximations or minimums.

1523

     (7)  A description of the recreational and other facilities

1524

that will be used in common with other condominiums, community

1525

associations, or planned developments which require the payment

1526

of the maintenance and expenses of such facilities, either

1527

directly or indirectly, by the unit owners. The description shall

1528

include, but not be limited to, the following:

1529

     (a)  Each building and facility committed to be built.

1530

     (b)  Facilities not committed to be built except under

1531

certain conditions, and a statement of those conditions or

1532

contingencies.

1533

     (c)  As to each facility committed to be built, or which

1534

will be committed to be built upon the happening of one of the

1535

conditions in paragraph (b), a statement of whether it will be

1536

owned by the unit owners having the use thereof or by an

1537

association or other entity which will be controlled by them, or

1538

others, and the location in the exhibits of the lease or other

1539

document providing for use of those facilities.

1540

     (d)  The year in which each facility will be available for

1541

use by the unit owners or, in the alternative, the maximum number

1542

of unit owners in the project at the time each of all of the

1543

facilities is committed to be completed.

1544

     (e)  A general description of the items of personal

1545

property, and the approximate number of each item of personal

1546

property, that the developer is committing to furnish for each

1547

room or other facility or, in the alternative, a representation

1548

as to the minimum amount of expenditure that will be made to

1549

purchase the personal property for the facility.

1550

     (f)  If there are leases, a description thereof, including

1551

the length of the term, the rent payable, and a description of

1552

any option to purchase.

1553

1554

Descriptions shall include location, areas, capacities, numbers,

1555

volumes, or sizes and may be stated as approximations or

1556

minimums.

1557

     (8)  Recreation lease or associated club membership:

1558

     (a)  If any recreational facilities or other facilities

1559

offered by the developer and available to, or to be used by, unit

1560

owners are to be leased or have club membership associated, the

1561

following statement in conspicuous type shall be included: THERE

1562

IS A RECREATIONAL FACILITIES LEASE ASSOCIATED WITH THIS

1563

CONDOMINIUM; or, THERE IS A CLUB MEMBERSHIP ASSOCIATED WITH THIS

1564

CONDOMINIUM. There shall be a reference to the location in the

1565

disclosure materials where the recreation lease or club

1566

membership is described in detail.

1567

     (b)  If it is mandatory that unit owners pay a fee, rent,

1568

dues, or other charges under a recreational facilities lease or

1569

club membership for the use of facilities, there shall be in

1570

conspicuous type the applicable statement:

1571

     1.  MEMBERSHIP IN THE RECREATIONAL FACILITIES CLUB IS

1572

MANDATORY FOR UNIT OWNERS; or

1573

     2.  UNIT OWNERS ARE REQUIRED, AS A CONDITION OF OWNERSHIP,

1574

TO BE LESSEES UNDER THE RECREATIONAL FACILITIES LEASE; or

1575

     3.  UNIT OWNERS ARE REQUIRED TO PAY THEIR SHARE OF THE COSTS

1576

AND EXPENSES OF MAINTENANCE, MANAGEMENT, UPKEEP, REPLACEMENT,

1577

RENT, AND FEES UNDER THE RECREATIONAL FACILITIES LEASE (OR THE

1578

OTHER INSTRUMENTS PROVIDING THE FACILITIES); or

1579

     4.  A similar statement of the nature of the organization or

1580

the manner in which the use rights are created, and that unit

1581

owners are required to pay.

1582

1583

Immediately following the applicable statement, the location in

1584

the disclosure materials where the development is described in

1585

detail shall be stated.

1586

     (c)  If the developer, or any other person other than the

1587

unit owners and other persons having use rights in the

1588

facilities, reserves, or is entitled to receive, any rent, fee,

1589

or other payment for the use of the facilities, then there shall

1590

be the following statement in conspicuous type: THE UNIT OWNERS

1591

OR THE ASSOCIATION(S) MUST PAY RENT OR LAND USE FEES FOR

1592

RECREATIONAL OR OTHER COMMONLY USED FACILITIES. Immediately

1593

following this statement, the location in the disclosure

1594

materials where the rent or land use fees are described in detail

1595

shall be stated.

1596

     (d)  If, in any recreation format, whether leasehold, club,

1597

or other, any person other than the association has the right to

1598

a lien on the units to secure the payment of assessments, rent,

1599

or other exactions, there shall appear a statement in conspicuous

1600

type in substantially the following form:

1601

     1.  THERE IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO

1602

SECURE THE PAYMENT OF RENT AND OTHER EXACTIONS UNDER THE

1603

RECREATION LEASE. THE UNIT OWNER'S FAILURE TO MAKE THESE PAYMENTS

1604

MAY RESULT IN FORECLOSURE OF THE LIEN; or

1605

     2.  THERE IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO

1606

SECURE THE PAYMENT OF ASSESSMENTS OR OTHER EXACTIONS COMING DUE

1607

FOR THE USE, MAINTENANCE, UPKEEP, OR REPAIR OF THE RECREATIONAL

1608

OR COMMONLY USED FACILITIES. THE UNIT OWNER'S FAILURE TO MAKE

1609

THESE PAYMENTS MAY RESULT IN FORECLOSURE OF THE LIEN.

1610

1611

Immediately following the applicable statement, the location in

1612

the disclosure materials where the lien or lien right is

1613

described in detail shall be stated.

1614

     (9)  If the developer or any other person has the right to

1615

increase or add to the recreational facilities at any time after

1616

the establishment of the condominium whose unit owners have use

1617

rights therein, without the consent of the unit owners or

1618

associations being required, there shall appear a statement in

1619

conspicuous type in substantially the following form:

1620

RECREATIONAL FACILITIES MAY BE EXPANDED OR ADDED WITHOUT CONSENT

1621

OF UNIT OWNERS OR THE ASSOCIATION(S). Immediately following this

1622

statement, the location in the disclosure materials where such

1623

reserved rights are described shall be stated.

1624

     (10)  A statement of whether the developer's plan includes a

1625

program of leasing units rather than selling them, or leasing

1626

units and selling them subject to such leases. If so, there shall

1627

be a description of the plan, including the number and

1628

identification of the units and the provisions and term of the

1629

proposed leases, and a statement in boldfaced type that: THE

1630

UNITS MAY BE TRANSFERRED SUBJECT TO A LEASE.

1631

     (11)  The arrangements for management of the association and

1632

maintenance and operation of the condominium property and of

1633

other property that will serve the unit owners of the condominium

1634

property, and a description of the management contract and all

1635

other contracts for these purposes having a term in excess of 1

1636

year, including the following:

1637

     (a)  The names of contracting parties.

1638

     (b)  The term of the contract.

1639

     (c)  The nature of the services included.

1640

     (d)  The compensation, stated on a monthly and annual basis,

1641

and provisions for increases in the compensation.

1642

     (e)  A reference to the volumes and pages of the condominium

1643

documents and of the exhibits containing copies of such

1644

contracts.

1645

1646

Copies of all described contracts shall be attached as exhibits.

1647

If there is a contract for the management of the condominium

1648

property, then a statement in conspicuous type in substantially

1649

the following form shall appear, identifying the proposed or

1650

existing contract manager: THERE IS (IS TO BE) A CONTRACT FOR THE

1651

MANAGEMENT OF THE CONDOMINIUM PROPERTY WITH (NAME OF THE CONTRACT

1652

MANAGER). Immediately following this statement, the location in

1653

the disclosure materials of the contract for management of the

1654

condominium property shall be stated.

1655

     (12)  If the developer or any other person or persons other

1656

than the unit owners has the right to retain control of the board

1657

of administration of the association for a period of time which

1658

can exceed 1 year after the closing of the sale of a majority of

1659

the units in that condominium to persons other than successors or

1660

alternate developers, then a statement in conspicuous type in

1661

substantially the following form shall be included: THE DEVELOPER

1662

(OR OTHER PERSON) HAS THE RIGHT TO RETAIN CONTROL OF THE

1663

ASSOCIATION AFTER A MAJORITY OF THE UNITS HAVE BEEN SOLD.

1664

Immediately following this statement, the location in the

1665

disclosure materials where this right to control is described in

1666

detail shall be stated.

1667

     (13)  If there are any restrictions upon the sale, transfer,

1668

conveyance, or leasing of a unit, then a statement in conspicuous

1669

type in substantially the following form shall be included: THE

1670

SALE, LEASE, OR TRANSFER OF UNITS IS RESTRICTED OR CONTROLLED.

1671

Immediately following this statement, the location in the

1672

disclosure materials where the restriction, limitation, or

1673

control on the sale, lease, or transfer of units is described in

1674

detail shall be stated.

1675

     (14)  If the condominium is part of a phase project, the

1676

following information shall be stated:

1677

     (a)  A statement in conspicuous type in substantially the

1678

following form: THIS IS A PHASE CONDOMINIUM. ADDITIONAL LAND AND

1679

UNITS MAY BE ADDED TO THIS CONDOMINIUM. Immediately following

1680

this statement, the location in the disclosure materials where

1681

the phasing is described shall be stated.

1682

     (b)  A summary of the provisions of the declaration which

1683

provide for the phasing.

1684

     (c)  A statement as to whether or not residential buildings

1685

and units which are added to the condominium may be substantially

1686

different from the residential buildings and units originally in

1687

the condominium. If the added residential buildings and units may

1688

be substantially different, there shall be a general description

1689

of the extent to which such added residential buildings and units

1690

may differ, and a statement in conspicuous type in substantially

1691

the following form shall be included: BUILDINGS AND UNITS WHICH

1692

ARE ADDED TO THE CONDOMINIUM MAY BE SUBSTANTIALLY DIFFERENT FROM

1693

THE OTHER BUILDINGS AND UNITS IN THE CONDOMINIUM. Immediately

1694

following this statement, the location in the disclosure

1695

materials where the extent to which added residential buildings

1696

and units may substantially differ is described shall be stated.

1697

     (d)  A statement of the maximum number of buildings

1698

containing units, the maximum and minimum numbers of units in

1699

each building, the maximum number of units, and the minimum and

1700

maximum square footage of the units that may be contained within

1701

each parcel of land which may be added to the condominium.

1702

     (15)  If a condominium created on or after July 1, 2000, is

1703

or may become part of a multicondominium, the following

1704

information must be provided:

1705

     (a)  A statement in conspicuous type in substantially the

1706

following form: THIS CONDOMINIUM IS (MAY BE) PART OF A

1707

MULTICONDOMINIUM DEVELOPMENT IN WHICH OTHER CONDOMINIUMS WILL

1708

(MAY) BE OPERATED BY THE SAME ASSOCIATION. Immediately following

1709

this statement, the location in the prospectus or offering

1710

circular and its exhibits where the multicondominium aspects of

1711

the offering are described must be stated.

1712

     (b)  A summary of the provisions in the declaration,

1713

articles of incorporation, and bylaws which establish and provide

1714

for the operation of the multicondominium, including a statement

1715

as to whether unit owners in the condominium will have the right

1716

to use recreational or other facilities located or planned to be

1717

located in other condominiums operated by the same association,

1718

and the manner of sharing the common expenses related to such

1719

facilities.

1720

     (c)  A statement of the minimum and maximum number of

1721

condominiums, and the minimum and maximum number of units in each

1722

of those condominiums, which will or may be operated by the

1723

association, and the latest date by which the exact number will

1724

be finally determined.

1725

     (d)  A statement as to whether any of the condominiums in

1726

the multicondominium may include units intended to be used for

1727

nonresidential purposes and the purpose or purposes permitted for

1728

such use.

1729

     (e)  A general description of the location and approximate

1730

acreage of any land on which any additional condominiums to be

1731

operated by the association may be located.

1732

     (16)  If the condominium is created by conversion of

1733

existing improvements, the following information shall be stated:

1734

     (a)  The information required by s. 718.616.

1735

     (b)  A caveat that there are no express warranties unless

1736

they are stated in writing by the developer.

1737

     (17)  A summary of the restrictions, if any, to be imposed

1738

on units concerning the use of any of the condominium property,

1739

including statements as to whether there are restrictions upon

1740

children and pets, and reference to the volumes and pages of the

1741

condominium documents where such restrictions are found, or if

1742

such restrictions are contained elsewhere, then a copy of the

1743

documents containing the restrictions shall be attached as an

1744

exhibit.

1745

     (18)  If there is any land that is offered by the developer

1746

for use by the unit owners and that is neither owned by them nor

1747

leased to them, the association, or any entity controlled by unit

1748

owners and other persons having the use rights to such land, a

1749

statement shall be made as to how such land will serve the

1750

condominium. If any part of such land will serve the condominium,

1751

the statement shall describe the land and the nature and term of

1752

service, and the declaration or other instrument creating such

1753

servitude shall be included as an exhibit.

1754

     (19)  The manner in which utility and other services,

1755

including, but not limited to, sewage and waste disposal, water

1756

supply, and storm drainage, will be provided and the person or

1757

entity furnishing them.

1758

     (20)  An explanation of the manner in which the

1759

apportionment of common expenses and ownership of the common

1760

elements has been determined.

1761

     (21)  An estimated operating budget for the condominium and

1762

the association, and a schedule of the unit owner's expenses

1763

shall be attached as an exhibit and shall contain the following

1764

information:

1765

     (a)  The estimated monthly and annual expenses of the

1766

condominium and the association that are collected from unit

1767

owners by assessments.

1768

     (b)  The estimated monthly and annual expenses of each unit

1769

owner for a unit, other than common expenses paid by all unit

1770

owners, payable by the unit owner to persons or entities other

1771

than the association, as well as to the association, including

1772

fees assessed pursuant to s. 718.113(1) for maintenance of

1773

limited common elements where such costs are shared only by those

1774

entitled to use the limited common element, and the total

1775

estimated monthly and annual expense. There may be excluded from

1776

this estimate expenses which are not provided for or contemplated

1777

by the condominium documents, including, but not limited to, the

1778

costs of private telephone; maintenance of the interior of

1779

condominium units, which is not the obligation of the

1780

association; maid or janitorial services privately contracted for

1781

by the unit owners; utility bills billed directly to each unit

1782

owner for utility services to his or her unit; insurance premiums

1783

other than those incurred for policies obtained by the

1784

condominium; and similar personal expenses of the unit owner. A

1785

unit owner's estimated payments for assessments shall also be

1786

stated in the estimated amounts for the times when they will be

1787

due.

1788

     (c)  The estimated items of expenses of the condominium and

1789

the association, except as excluded under paragraph (b),

1790

including, but not limited to, the following items, which shall

1791

be stated either as an association expense collectible by

1792

assessments or as unit owners' expenses payable to persons other

1793

than the association:

1794

     1.  Expenses for the association and condominium:

1795

     a.  Administration of the association.

1796

     b.  Management fees.

1797

     c.  Maintenance.

1798

     d.  Rent for recreational and other commonly used

1799

facilities.

1800

     e.  Taxes upon association property.

1801

     f.  Taxes upon leased areas.

1802

     g.  Insurance.

1803

     h.  Security provisions.

1804

     i.  Other expenses.

1805

     j.  Operating capital.

1806

     k.  Reserves.

1807

     l.  Fees payable to the division.

1808

     2.  Expenses for a unit owner:

1809

     a.  Rent for the unit, if subject to a lease.

1810

     b.  Rent payable by the unit owner directly to the lessor or

1811

agent under any recreational lease or lease for the use of

1812

commonly used facilities, which use and payment is a mandatory

1813

condition of ownership and is not included in the common expense

1814

or assessments for common maintenance paid by the unit owners to

1815

the association.

1816

     (d)  The following statement in conspicuous type: THE BUDGET

1817

CONTAINED IN THIS OFFERING CIRCULAR HAS BEEN PREPARED IN

1818

ACCORDANCE WITH THE CONDOMINIUM ACT AND IS A GOOD FAITH ESTIMATE

1819

ONLY AND REPRESENTS AN APPROXIMATION OF FUTURE EXPENSES BASED ON

1820

FACTS AND CIRCUMSTANCES EXISTING AT THE TIME OF ITS PREPARATION.

1821

ACTUAL COSTS OF SUCH ITEMS MAY EXCEED THE ESTIMATED COSTS. SUCH

1822

CHANGES IN COST DO NOT CONSTITUTE MATERIAL ADVERSE CHANGES IN THE

1823

OFFERING.

1824

     (e)  Each budget for an association prepared by a developer

1825

consistent with this subsection shall be prepared in good faith

1826

and shall reflect accurate estimated amounts for the required

1827

items in paragraph (c) at the time of the filing of the offering

1828

circular with the division, and subsequent increased amounts of

1829

any item included in the association's estimated budget that are

1830

beyond the control of the developer shall not be considered an

1831

amendment that would give rise to rescission rights set forth in

1832

s. 718.503(1)(a) or (b), nor shall such increases modify, void,

1833

or otherwise affect any guarantee of the developer contained in

1834

the offering circular or any purchase contract. It is the intent

1835

of this paragraph to clarify existing law.

1836

     (f)  The estimated amounts shall be stated for a period of

1837

at least 12 months and may distinguish between the period prior

1838

to the time unit owners other than the developer elect a majority

1839

of the board of administration and the period after that date.

1840

     (22)  A schedule of estimated closing expenses to be paid by

1841

a buyer or lessee of a unit and a statement of whether title

1842

opinion or title insurance policy is available to the buyer and,

1843

if so, at whose expense.

1844

     (23)  The identity of the developer and the chief operating

1845

officer or principal directing the creation and sale of the

1846

condominium and a statement of its and his or her experience in

1847

this field.

1848

     (24)  Copies of the following, to the extent they are

1849

applicable, shall be included as exhibits:

1850

     (a)  The declaration of condominium, or the proposed

1851

declaration if the declaration has not been recorded.

1852

     (b)  The articles of incorporation creating the association.

1853

     (c)  The bylaws of the association.

1854

     (d)  The ground lease or other underlying lease of the

1855

condominium.

1856

     (e)  The management agreement and all maintenance and other

1857

contracts for management of the association and operation of the

1858

condominium and facilities used by the unit owners having a

1859

service term in excess of 1 year.

1860

     (f)  The estimated operating budget for the condominium and

1861

the required schedule of unit owners' expenses.

1862

     (g)  A copy of the floor plan of the unit and the plot plan

1863

showing the location of the residential buildings and the

1864

recreation and other common areas.

1865

     (h)  The lease of recreational and other facilities that

1866

will be used only by unit owners of the subject condominium.

1867

     (i)  The lease of facilities used by owners and others.

1868

     (j)  The form of unit lease, if the offer is of a leasehold.

1869

     (k)  A declaration of servitude of properties serving the

1870

condominium but not owned by unit owners or leased to them or the

1871

association.

1872

     (l)  The statement of condition of the existing building or

1873

buildings, if the offering is of units in an operation being

1874

converted to condominium ownership.

1875

     (m)  The statement of inspection for termite damage and

1876

treatment of the existing improvements, if the condominium is a

1877

conversion.

1878

     (n)  The form of agreement for sale or lease of units.

1879

     (o)  A copy of the agreement for escrow of payments made to

1880

the developer prior to closing.

1881

     (p)  A copy of the documents containing any restrictions on

1882

use of the property required by subsection (17).

1883

     (25)  Any prospectus or offering circular complying, prior

1884

to the effective date of this act, with the provisions of former

1885

ss. 711.69 and 711.802 may continue to be used without amendment

1886

or may be amended to comply with the provisions of this chapter.

1887

     (26)  A brief narrative description of the location and

1888

effect of all existing and intended easements located or to be

1889

located on the condominium property other than those described in

1890

the declaration.

1891

     (27)  If the developer is required by state or local

1892

authorities to obtain acceptance or approval of any dock or

1893

marina facilities intended to serve the condominium, a copy of

1894

any such acceptance or approval acquired by the time of filing

1895

with the division under s. 718.502(1) or a statement that such

1896

acceptance or approval has not been acquired or received.

1897

     (28)  Evidence demonstrating that the developer has an

1898

ownership, leasehold, or contractual interest in the land upon

1899

which the condominium is to be developed.

1900

     Section 40.  Section 718.508, Florida Statutes, is amended

1901

to read:

1902

     718.508  Regulation by Division of Hotels and

1903

Restaurants.--In addition to the authority, regulation, or

1904

control exercised by the Division of Florida Land Sales,

1905

Condominiums, Timeshares, and Mobile Homes pursuant to this act

1906

with respect to condominiums, buildings included in a condominium

1907

property are shall be subject to the authority, regulation, or

1908

control of the Division of Hotels and Restaurants of the

1909

Department of Business and Professional Regulation, to the extent

1910

provided for in chapter 399.

1911

     Section 41.  Section 718.509, Florida Statutes, is amended,

1912

to read:

1913

     718.509 Division of Florida Land Sales, Condominiums,

1914

Timeshares, and Mobile Homes Trust Fund.--

1915

     (1) There is created within the State Treasury the Division

1916

of Florida Condominiums, Timeshares, and Mobile Homes Trust Fund

1917

to be used for the administration and operation of this chapter

1918

and chapters 718, 719, 721, and 723 by the division.

1919

     (2) All moneys collected by the division from fees, fines,

1920

or penalties or from costs awarded to the division by a court or

1921

administrative final order shall be paid into the Division of

1922

Florida Condominiums, Timeshares, and Mobile Homes Trust Fund.

1923

The Legislature shall appropriate funds from the trust fund

1924

sufficient to carry out the provisions of this chapter and the

1925

provisions of law with respect to each category of business

1926

covered by the trust fund. The division shall maintain separate

1927

revenue accounts in the trust fund for each business regulated by

1928

the division. The division shall provide for the proportionate

1929

allocation among the accounts of expenses incurred by the

1930

division in the performance of its duties with respect to each

1931

business. As part of its normal budgetary process, the division

1932

shall prepare an annual report of revenues and allocated expenses

1933

related to the operation of each business which may be used to

1934

determine fees charged by the division. This subsection shall

1935

operate pursuant to s. 215.20. All funds collected by the

1936

division and any amount paid for a fee or penalty under this

1937

chapter shall be deposited in the State Treasury to the credit of

1938

the Division of Florida Land Sales, Condominiums, and Mobile

1939

Homes Trust Fund created by s. 498.019.

1940

     Section 42.  Paragraph (a) of subsection (2) of section

1941

718.608, Florida Statutes, is amended to read:

1942

     718.608  Notice of intended conversion; time of delivery;

1943

content.--

1944

     (2)(a)  Each notice of intended conversion shall be dated

1945

and in writing. The notice shall contain the following statement,

1946

with the phrases of the following statement which appear in upper

1947

case printed in conspicuous type:

1948

1949

     These apartments are being converted to condominium by  

1950

(name of developer)  , the developer.

1951

     1.  YOU MAY REMAIN AS A RESIDENT UNTIL THE EXPIRATION OF

1952

YOUR RENTAL AGREEMENT. FURTHER, YOU MAY EXTEND YOUR RENTAL

1953

AGREEMENT AS FOLLOWS:

1954

     a.  If you have continuously been a resident of these

1955

apartments during the last 180 days and your rental agreement

1956

expires during the next 270 days, you may extend your rental

1957

agreement for up to 270 days after the date of this notice.

1958

     b.  If you have not been a continuous resident of these

1959

apartments for the last 180 days and your rental agreement

1960

expires during the next 180 days, you may extend your rental

1961

agreement for up to 180 days after the date of this notice.

1962

     c.  IN ORDER FOR YOU TO EXTEND YOUR RENTAL AGREEMENT, YOU

1963

MUST GIVE THE DEVELOPER WRITTEN NOTICE WITHIN 45 DAYS AFTER THE

1964

DATE OF THIS NOTICE.

1965

     2.  IF YOUR RENTAL AGREEMENT EXPIRES IN THE NEXT 45 DAYS,

1966

you may extend your rental agreement for up to 45 days after the

1967

date of this notice while you decide whether to extend your

1968

rental agreement as explained above. To do so, you must notify

1969

the developer in writing. You will then have the full 45 days to

1970

decide whether to extend your rental agreement as explained

1971

above.

1972

     3.  During the extension of your rental agreement you will

1973

be charged the same rent that you are now paying.

1974

     4.  YOU MAY CANCEL YOUR RENTAL AGREEMENT AND ANY EXTENSION

1975

OF THE RENTAL AGREEMENT AS FOLLOWS:

1976

     a.  If your rental agreement began or was extended or

1977

renewed after May 1, 1980, and your rental agreement, including

1978

extensions and renewals, has an unexpired term of 180 days or

1979

less, you may cancel your rental agreement upon 30 days' written

1980

notice and move. Also, upon 30 days' written notice, you may

1981

cancel any extension of the rental agreement.

1982

     b.  If your rental agreement was not begun or was not

1983

extended or renewed after May 1, 1980, you may not cancel the

1984

rental agreement without the consent of the developer. If your

1985

rental agreement, including extensions and renewals, has an

1986

unexpired term of 180 days or less, you may, however, upon 30

1987

days' written notice cancel any extension of the rental

1988

agreement.

1989

     5.  All notices must be given in writing and sent by mail,

1990

return receipt requested, or delivered in person to the developer

1991

at this address:   (name and address of developer)  .

1992

     6.  If you have continuously been a resident of these

1993

apartments during the last 180 days:

1994

     a.  You have the right to purchase your apartment and will

1995

have 45 days to decide whether to purchase. If you do not buy the

1996

unit at that price and the unit is later offered at a lower

1997

price, you will have the opportunity to buy the unit at the lower

1998

price. However, in all events your right to purchase the unit

1999

ends when the rental agreement or any extension of the rental

2000

agreement ends or when you waive this right in writing.

2001

     b.  Within 90 days you will be provided purchase information

2002

relating to your apartment, including the price of your unit and

2003

the condition of the building. If you do not receive this

2004

information within 90 days, your rental agreement and any

2005

extension will be extended 1 day for each day over 90 days until

2006

you are given the purchase information. If you do not want this

2007

rental agreement extension, you must notify the developer in

2008

writing.

2009

     7.  If you have any questions regarding this conversion or

2010

the Condominium Act, you may contact the developer or the state

2011

agency which regulates condominiums: The Division of Florida Land

2012

Sales, Condominiums, Timeshares, and Mobile Homes, (Tallahassee

2013

address and telephone number of division)  .

2014

     Section 43.  Subsection (17) of section 719.103, Florida

2015

Statutes, is amended to read:

2016

     719.103  Definitions.--As used in this chapter:

2017

     (17) "Division" means the Division of Florida Land Sales,

2018

Condominiums, Timeshares, and Mobile Homes of the Department of

2019

Business and Professional Regulation.

2020

     Section 44.  Section 719.1255, Florida Statutes, is amended

2021

to read:

2022

     719.1255  Alternative resolution of disputes.--The Division

2023

of Florida Land Sales, Condominiums, Timeshares, and Mobile Homes

2024

of the Department of Business and Professional Regulation shall

2025

provide for alternative dispute resolution in accordance with s.

2027

     Section 45.  Section 719.501, Florida Statutes, is amended

2028

to read:

2029

     719.501 Powers and duties of Division of Florida Land

2030

Sales, Condominiums, Timeshares, and Mobile Homes.--

2031

     (1) The Division of Florida Land Sales, Condominiums,

2032

Timeshares, and Mobile Homes of the Department of Business and

2033

Professional Regulation, referred to as the "division" in this

2034

part, in addition to other powers and duties prescribed by

2035

chapter 718 498, has the power to enforce and ensure compliance

2036

with the provisions of this chapter and adopted rules promulgated

2037

pursuant hereto relating to the development, construction, sale,

2038

lease, ownership, operation, and management of residential

2039

cooperative units. In performing its duties, the division shall

2040

have the following powers and duties:

2041

     (a)  The division may make necessary public or private

2042

investigations within or outside this state to determine whether

2043

any person has violated this chapter or any rule or order

2044

hereunder, to aid in the enforcement of this chapter, or to aid

2045

in the adoption of rules or forms hereunder.

2046

     (b)  The division may require or permit any person to file a

2047

statement in writing, under oath or otherwise, as the division

2048

determines, as to the facts and circumstances concerning a matter

2049

to be investigated.

2050

     (c)  For the purpose of any investigation under this

2051

chapter, the division director or any officer or employee

2052

designated by the division director may administer oaths or

2053

affirmations, subpoena witnesses and compel their attendance,

2054

take evidence, and require the production of any matter which is

2055

relevant to the investigation, including the existence,

2056

description, nature, custody, condition, and location of any

2057

books, documents, or other tangible things and the identity and

2058

location of persons having knowledge of relevant facts or any

2059

other matter reasonably calculated to lead to the discovery of

2060

material evidence. Upon failure by a person to obey a subpoena or

2061

to answer questions propounded by the investigating officer and

2062

upon reasonable notice to all persons affected thereby, the

2063

division may apply to the circuit court for an order compelling

2064

compliance.

2065

     (d)  Notwithstanding any remedies available to unit owners

2066

and associations, if the division has reasonable cause to believe

2067

that a violation of any provision of this chapter or related rule

2068

promulgated pursuant hereto has occurred, the division may

2069

institute enforcement proceedings in its own name against a

2070

developer, association, officer, or member of the board, or its

2071

assignees or agents, as follows:

2072

     1.  The division may permit a person whose conduct or

2073

actions may be under investigation to waive formal proceedings

2074

and enter into a consent proceeding whereby orders, rules, or

2075

letters of censure or warning, whether formal or informal, may be

2076

entered against the person.

2077

     2.  The division may issue an order requiring the developer,

2078

association, officer, or member of the board, or its assignees or

2079

agents, to cease and desist from the unlawful practice and take

2080

such affirmative action as in the judgment of the division will

2081

carry out the purposes of this chapter. Such affirmative action

2082

may include, but is not limited to, an order requiring a

2083

developer to pay moneys determined to be owed to a condominium

2084

association.

2085

     3.  The division may bring an action in circuit court on

2086

behalf of a class of unit owners, lessees, or purchasers for

2087

declaratory relief, injunctive relief, or restitution.

2088

     4.  The division may impose a civil penalty against a

2089

developer or association, or its assignees or agents, for any

2090

violation of this chapter or related a rule promulgated pursuant

2091

hereto. The division may impose a civil penalty individually

2092

against any officer or board member who willfully and knowingly

2093

violates a provision of this chapter, a rule adopted pursuant to

2094

this chapter, or a final order of the division. The term

2095

"willfully and knowingly" means that the division informed the

2096

officer or board member that his or her action or intended action

2097

violates this chapter, a rule adopted under this chapter, or a

2098

final order of the division, and that the officer or board member

2099

refused to comply with the requirements of this chapter, a rule

2100

adopted under this chapter, or a final order of the division. The

2101

division, prior to initiating formal agency action under chapter

2102

120, shall afford the officer or board member an opportunity to

2103

voluntarily comply with this chapter, a rule adopted under this

2104

chapter, or a final order of the division. An officer or board

2105

member who complies within 10 days is not subject to a civil

2106

penalty. A penalty may be imposed on the basis of each day of

2107

continuing violation, but in no event shall the penalty for any

2108

offense exceed $5,000. By January 1, 1998, the division shall

2109

adopt, by rule, penalty guidelines applicable to possible

2110

violations or to categories of violations of this chapter or

2111

rules adopted by the division. The guidelines must specify a

2112

meaningful range of civil penalties for each such violation of

2113

the statute and rules and must be based upon the harm caused by

2114

the violation, the repetition of the violation, and upon such

2115

other factors deemed relevant by the division. For example, the

2116

division may consider whether the violations were committed by a

2117

developer or owner-controlled association, the size of the

2118

association, and other factors. The guidelines must designate the

2119

possible mitigating or aggravating circumstances that justify a

2120

departure from the range of penalties provided by the rules. It

2121

is the legislative intent that minor violations be distinguished

2122

from those which endanger the health, safety, or welfare of the

2123

cooperative residents or other persons and that such guidelines

2124

provide reasonable and meaningful notice to the public of likely

2125

penalties that may be imposed for proscribed conduct. This

2126

subsection does not limit the ability of the division to

2127

informally dispose of administrative actions or complaints by

2128

stipulation, agreed settlement, or consent order. All amounts

2129

collected shall be deposited with the Chief Financial Officer to

2130

the credit of the Division of Florida Land Sales, Condominiums,

2131

Timeshares, and Mobile Homes Trust Fund. If a developer fails to

2132

pay the civil penalty, the division shall thereupon issue an

2133

order directing that such developer cease and desist from further

2134

operation until such time as the civil penalty is paid or may

2135

pursue enforcement of the penalty in a court of competent

2136

jurisdiction. If an association fails to pay the civil penalty,

2137

the division shall thereupon pursue enforcement in a court of

2138

competent jurisdiction, and the order imposing the civil penalty

2139

or the cease and desist order shall not become effective until 20

2140

days after the date of such order. Any action commenced by the

2141

division shall be brought in the county in which the division has

2142

its executive offices or in the county where the violation

2143

occurred.

2144

     (e) The division may is authorized to prepare and

2145

disseminate a prospectus and other information to assist

2146

prospective owners, purchasers, lessees, and developers of

2147

residential cooperatives in assessing the rights, privileges, and

2148

duties pertaining thereto.

2149

     (f)  The division has authority to adopt rules pursuant to

2150

ss. 120.536(1) and 120.54 to implement and enforce the provisions

2151

of this chapter.

2152

     (g)  The division shall establish procedures for providing

2153

notice to an association when the division is considering the

2154

issuance of a declaratory statement with respect to the

2155

cooperative documents governing such cooperative community.

2156

     (h)  The division shall furnish each association which pays

2157

the fees required by paragraph (2)(a) a copy of this act,

2158

subsequent changes to this act on an annual basis, an amended

2159

version of this act as it becomes available from the Secretary of

2160

State's office on a biennial basis, and the rules adopted

2161

promulgated pursuant thereto on an annual basis.

2162

     (i)  The division shall annually provide each association

2163

with a summary of declaratory statements and formal legal

2164

opinions relating to the operations of cooperatives which were

2165

rendered by the division during the previous year.

2166

     (j)  The division shall adopt uniform accounting principles,

2167

policies, and standards to be used by all associations in the

2168

preparation and presentation of all financial statements required

2169

by this chapter. The principles, policies, and standards shall

2170

take into consideration the size of the association and the total

2171

revenue collected by the association.

2172

     (k)  The division shall provide training programs for

2173

cooperative association board members and unit owners.

2174

     (l)  The division shall maintain a toll-free telephone

2175

number accessible to cooperative unit owners.

2176

     (m)  When a complaint is made to the division, the division

2177

shall conduct its inquiry with reasonable dispatch and with due

2178

regard to the interests of the affected parties. Within 30 days

2179

after receipt of a complaint, the division shall acknowledge the

2180

complaint in writing and notify the complainant whether the

2181

complaint is within the jurisdiction of the division and whether

2182

additional information is needed by the division from the

2183

complainant. The division shall conduct its investigation and

2184

shall, within 90 days after receipt of the original complaint or

2185

timely requested additional information, take action upon the

2186

complaint. However, the failure to complete the investigation

2187

within 90 days does not prevent the division from continuing the

2188

investigation, accepting or considering evidence obtained or

2189

received after 90 days, or taking administrative action if

2190

reasonable cause exists to believe that a violation of this

2191

chapter or a rule of the division has occurred. If an

2192

investigation is not completed within the time limits established

2193

in this paragraph, the division shall, on a monthly basis, notify

2194

the complainant in writing of the status of the investigation.

2195

When reporting its action to the complainant, the division shall

2196

inform the complainant of any right to a hearing pursuant to ss.

2197

120.569 and 120.57.

2198

     (n)  The division shall develop a program to certify both

2199

volunteer and paid mediators to provide mediation of cooperative

2200

disputes. The division shall provide, upon request, a list of

2201

such mediators to any association, unit owner, or other

2202

participant in arbitration proceedings under s. 718.1255

2203

requesting a copy of the list. The division shall include on the

2204

list of voluntary mediators only persons who have received at

2205

least 20 hours of training in mediation techniques or have

2206

mediated at least 20 disputes. In order to become initially

2207

certified by the division, paid mediators must be certified by

2208

the Supreme Court to mediate court cases in either county or

2209

circuit courts. However, the division may adopt, by rule,

2210

additional factors for the certification of paid mediators, which

2211

factors must be related to experience, education, or background.

2212

Any person initially certified as a paid mediator by the division

2213

must, in order to continue to be certified, comply with the

2214

factors or requirements imposed by rules adopted by the division.

2215

     (2)(a)  Each cooperative association shall pay to the

2216

division, on or before January 1 of each year, an annual fee in

2217

the amount of $4 for each residential unit in cooperatives

2218

operated by the association. If the fee is not paid by March 1,

2219

then the association shall be assessed a penalty of 10 percent of

2220

the amount due, and the association shall not have the standing

2221

to maintain or defend any action in the courts of this state

2222

until the amount due is paid.

2223

     (b)  All fees shall be deposited in the Division of Florida

2224

Land Sales, Condominiums, Timeshares, and Mobile Homes Trust Fund

2225

as provided by law.

2226

     Section 46.  Paragraph (a) of subsection (2) of section

2227

719.502, Florida Statutes, is amended to read:

2228

     719.502  Filing prior to sale or lease.--

2229

     (2)(a)  Prior to filing as required by subsection (1), and

2230

prior to acquiring an ownership, leasehold, or contractual

2231

interest in the land upon which the cooperative is to be

2232

developed, a developer shall not offer a contract for purchase or

2233

lease of a unit for more than 5 years. However, the developer may

2234

accept deposits for reservations upon the approval of a fully

2235

executed escrow agreement and reservation agreement form properly

2236

filed with the Division of Florida Land Sales, Condominiums,

2237

Timeshares, and Mobile Homes. Each filing of a proposed

2238

reservation program shall be accompanied by a filing fee of $250.

2239

Reservations shall not be taken on a proposed cooperative unless

2240

the developer has an ownership, leasehold, or contractual

2241

interest in the land upon which the cooperative is to be

2242

developed. The division shall notify the developer within 20 days

2243

of receipt of the reservation filing of any deficiencies

2244

contained therein. Such notification shall not preclude the

2245

determination of reservation filing deficiencies at a later date,

2246

nor shall it relieve the developer of any responsibility under

2247

the law. The escrow agreement and the reservation agreement form

2248

shall include a statement of the right of the prospective

2249

purchaser to an immediate unqualified refund of the reservation

2250

deposit moneys upon written request to the escrow agent by the

2251

prospective purchaser or the developer.

2252

     Section 47.  Section 719.504, Florida Statutes, is amended

2253

to read:

2254

     719.504  Prospectus or offering circular.--Every developer

2255

of a residential cooperative which contains more than 20

2256

residential units, or which is part of a group of residential

2257

cooperatives which will be served by property to be used in

2258

common by unit owners of more than 20 residential units, shall

2259

prepare a prospectus or offering circular and file it with the

2260

Division of Florida Land Sales, Condominiums, Timeshares, and

2261

Mobile Homes prior to entering into an enforceable contract of

2262

purchase and sale of any unit or lease of a unit for more than 5

2263

years and shall furnish a copy of the prospectus or offering

2264

circular to each buyer. In addition to the prospectus or offering

2265

circular, each buyer shall be furnished a separate page entitled

2266

"Frequently Asked Questions and Answers," which must be in

2267

accordance with a format approved by the division. This page

2268

must, in readable language: inform prospective purchasers

2269

regarding their voting rights and unit use restrictions,

2270

including restrictions on the leasing of a unit; indicate whether

2271

and in what amount the unit owners or the association is

2272

obligated to pay rent or land use fees for recreational or other

2273

commonly used facilities; contain a statement identifying that

2274

amount of assessment which, pursuant to the budget, would be

2275

levied upon each unit type, exclusive of any special assessments,

2276

and which identifies the basis upon which assessments are levied,

2277

whether monthly, quarterly, or otherwise; state and identify any

2278

court cases in which the association is currently a party of

2279

record in which the association may face liability in excess of

2280

$100,000; and state whether membership in a recreational

2281

facilities association is mandatory and, if so, identify the fees

2282

currently charged per unit type. The division shall by rule

2283

require such other disclosure as in its judgment will assist

2284

prospective purchasers. The prospectus or offering circular may

2285

include more than one cooperative, although not all such units

2286

are being offered for sale as of the date of the prospectus or

2287

offering circular. The prospectus or offering circular must

2288

contain the following information:

2289

     (1)  The front cover or the first page must contain only:

2290

     (a)  The name of the cooperative.

2291

     (b)  The following statements in conspicuous type:

2292

     1.  THIS PROSPECTUS (OFFERING CIRCULAR) CONTAINS IMPORTANT

2293

MATTERS TO BE CONSIDERED IN ACQUIRING A COOPERATIVE UNIT.

2294

     2.  THE STATEMENTS CONTAINED HEREIN ARE ONLY SUMMARY IN

2295

NATURE. A PROSPECTIVE PURCHASER SHOULD REFER TO ALL REFERENCES,

2296

ALL EXHIBITS HERETO, THE CONTRACT DOCUMENTS, AND SALES MATERIALS.

2297

     3.  ORAL REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY

2298

STATING THE REPRESENTATIONS OF THE DEVELOPER. REFER TO THIS

2299

PROSPECTUS (OFFERING CIRCULAR) AND ITS EXHIBITS FOR CORRECT

2300

REPRESENTATIONS.

2301

     (2)  Summary: The next page must contain all statements

2302

required to be in conspicuous type in the prospectus or offering

2303

circular.

2304

     (3)  A separate index of the contents and exhibits of the

2305

prospectus.

2306

     (4)  Beginning on the first page of the text (not including

2307

the summary and index), a description of the cooperative,

2308

including, but not limited to, the following information:

2309

     (a)  Its name and location.

2310

     (b)  A description of the cooperative property, including,

2311

without limitation:

2312

     1.  The number of buildings, the number of units in each

2313

building, the number of bathrooms and bedrooms in each unit, and

2314

the total number of units, if the cooperative is not a phase

2315

cooperative; or, if the cooperative is a phase cooperative, the

2316

maximum number of buildings that may be contained within the

2317

cooperative, the minimum and maximum number of units in each

2318

building, the minimum and maximum number of bathrooms and

2319

bedrooms that may be contained in each unit, and the maximum

2320

number of units that may be contained within the cooperative.

2321

     2.  The page in the cooperative documents where a copy of

2322

the survey and plot plan of the cooperative is located.

2323

     3.  The estimated latest date of completion of constructing,

2324

finishing, and equipping. In lieu of a date, a statement that the

2325

estimated date of completion of the cooperative is in the

2326

purchase agreement and a reference to the article or paragraph

2327

containing that information.

2328

     (c)  The maximum number of units that will use facilities in

2329

common with the cooperative. If the maximum number of units will

2330

vary, a description of the basis for variation and the minimum

2331

amount of dollars per unit to be spent for additional

2332

recreational facilities or enlargement of such facilities. If the

2333

addition or enlargement of facilities will result in a material

2334

increase of a unit owner's maintenance expense or rental expense,

2335

if any, the maximum increase and limitations thereon shall be

2336

stated.

2337

     (5)(a)  A statement in conspicuous type describing whether

2338

the cooperative is created and being sold as fee simple interests

2339

or as leasehold interests. If the cooperative is created or being

2340

sold on a leasehold, the location of the lease in the disclosure

2341

materials shall be stated.

2342

     (b)  If timeshare estates are or may be created with respect

2343

to any unit in the cooperative, a statement in conspicuous type

2344

stating that timeshare estates are created and being sold in such

2345

specified units in the cooperative.

2346

     (6)  A description of the recreational and other common

2347

areas that will be used only by unit owners of the cooperative,

2348

including, but not limited to, the following:

2349

     (a)  Each room and its intended purposes, location,

2350

approximate floor area, and capacity in numbers of people.

2351

     (b)  Each swimming pool, as to its general location,

2352

approximate size and depths, approximate deck size and capacity,

2353

and whether heated.

2354

     (c)  Additional facilities, as to the number of each

2355

facility, its approximate location, approximate size, and

2356

approximate capacity.

2357

     (d)  A general description of the items of personal property

2358

and the approximate number of each item of personal property that

2359

the developer is committing to furnish for each room or other

2360

facility or, in the alternative, a representation as to the

2361

minimum amount of expenditure that will be made to purchase the

2362

personal property for the facility.

2363

     (e)  The estimated date when each room or other facility

2364

will be available for use by the unit owners.

2365

     (f)1.  An identification of each room or other facility to

2366

be used by unit owners that will not be owned by the unit owners

2367

or the association;

2368

     2.  A reference to the location in the disclosure materials

2369

of the lease or other agreements providing for the use of those

2370

facilities; and

2371

     3.  A description of the terms of the lease or other

2372

agreements, including the length of the term; the rent payable,

2373

directly or indirectly, by each unit owner, and the total rent

2374

payable to the lessor, stated in monthly and annual amounts for

2375

the entire term of the lease; and a description of any option to

2376

purchase the property leased under any such lease, including the

2377

time the option may be exercised, the purchase price or how it is

2378

to be determined, the manner of payment, and whether the option

2379

may be exercised for a unit owner's share or only as to the

2380

entire leased property.

2381

     (g)  A statement as to whether the developer may provide

2382

additional facilities not described above, their general

2383

locations and types, improvements or changes that may be made,

2384

the approximate dollar amount to be expended, and the maximum

2385

additional common expense or cost to the individual unit owners

2386

that may be charged during the first annual period of operation

2387

of the modified or added facilities.

2388

2389

Descriptions as to locations, areas, capacities, numbers,

2390

volumes, or sizes may be stated as approximations or minimums.

2391

     (7)  A description of the recreational and other facilities

2392

that will be used in common with other cooperatives, community

2393

associations, or planned developments which require the payment

2394

of the maintenance and expenses of such facilities, either

2395

directly or indirectly, by the unit owners. The description shall

2396

include, but not be limited to, the following:

2397

     (a)  Each building and facility committed to be built.

2398

     (b)  Facilities not committed to be built except under

2399

certain conditions, and a statement of those conditions or

2400

contingencies.

2401

     (c)  As to each facility committed to be built, or which

2402

will be committed to be built upon the happening of one of the

2403

conditions in paragraph (b), a statement of whether it will be

2404

owned by the unit owners having the use thereof or by an

2405

association or other entity which will be controlled by them, or

2406

others, and the location in the exhibits of the lease or other

2407

document providing for use of those facilities.

2408

     (d)  The year in which each facility will be available for

2409

use by the unit owners or, in the alternative, the maximum number

2410

of unit owners in the project at the time each of all of the

2411

facilities is committed to be completed.

2412

     (e)  A general description of the items of personal

2413

property, and the approximate number of each item of personal

2414

property, that the developer is committing to furnish for each

2415

room or other facility or, in the alternative, a representation

2416

as to the minimum amount of expenditure that will be made to

2417

purchase the personal property for the facility.

2418

     (f)  If there are leases, a description thereof, including

2419

the length of the term, the rent payable, and a description of

2420

any option to purchase.

2421

2422

Descriptions shall include location, areas, capacities, numbers,

2423

volumes, or sizes and may be stated as approximations or

2424

minimums.

2425

     (8)  Recreation lease or associated club membership:

2426

     (a)  If any recreational facilities or other common areas

2427

offered by the developer and available to, or to be used by, unit

2428

owners are to be leased or have club membership associated, the

2429

following statement in conspicuous type shall be included: THERE

2430

IS A RECREATIONAL FACILITIES LEASE ASSOCIATED WITH THIS

2431

COOPERATIVE; or, THERE IS A CLUB MEMBERSHIP ASSOCIATED WITH THIS

2432

COOPERATIVE. There shall be a reference to the location in the

2433

disclosure materials where the recreation lease or club

2434

membership is described in detail.

2435

     (b)  If it is mandatory that unit owners pay a fee, rent,

2436

dues, or other charges under a recreational facilities lease or

2437

club membership for the use of facilities, there shall be in

2438

conspicuous type the applicable statement:

2439

     1.  MEMBERSHIP IN THE RECREATIONAL FACILITIES CLUB IS

2440

MANDATORY FOR UNIT OWNERS; or

2441

     2.  UNIT OWNERS ARE REQUIRED, AS A CONDITION OF OWNERSHIP,

2442

TO BE LESSEES UNDER THE RECREATIONAL FACILITIES LEASE; or

2443

     3.  UNIT OWNERS ARE REQUIRED TO PAY THEIR SHARE OF THE COSTS

2444

AND EXPENSES OF MAINTENANCE, MANAGEMENT, UPKEEP, REPLACEMENT,

2445

RENT, AND FEES UNDER THE RECREATIONAL FACILITIES LEASE (OR THE

2446

OTHER INSTRUMENTS PROVIDING THE FACILITIES); or

2447

     4.  A similar statement of the nature of the organization or

2448

manner in which the use rights are created, and that unit owners

2449

are required to pay.

2450

2451

Immediately following the applicable statement, the location in

2452

the disclosure materials where the development is described in

2453

detail shall be stated.

2454

     (c)  If the developer, or any other person other than the

2455

unit owners and other persons having use rights in the

2456

facilities, reserves, or is entitled to receive, any rent, fee,

2457

or other payment for the use of the facilities, then there shall

2458

be the following statement in conspicuous type: THE UNIT OWNERS

2459

OR THE ASSOCIATION(S) MUST PAY RENT OR LAND USE FEES FOR

2460

RECREATIONAL OR OTHER COMMON AREAS. Immediately following this

2461

statement, the location in the disclosure materials where the

2462

rent or land use fees are described in detail shall be stated.

2463

     (d)  If, in any recreation format, whether leasehold, club,

2464

or other, any person other than the association has the right to

2465

a lien on the units to secure the payment of assessments, rent,

2466

or other exactions, there shall appear a statement in conspicuous

2467

type in substantially the following form:

2468

     1.  THERE IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO

2469

SECURE THE PAYMENT OF RENT AND OTHER EXACTIONS UNDER THE

2470

RECREATION LEASE. THE UNIT OWNER'S FAILURE TO MAKE THESE PAYMENTS

2471

MAY RESULT IN FORECLOSURE OF THE LIEN; or

2472

     2.  THERE IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO

2473

SECURE THE PAYMENT OF ASSESSMENTS OR OTHER EXACTIONS COMING DUE

2474

FOR THE USE, MAINTENANCE, UPKEEP, OR REPAIR OF THE RECREATIONAL

2475

OR COMMONLY USED AREAS. THE UNIT OWNER'S FAILURE TO MAKE THESE

2476

PAYMENTS MAY RESULT IN FORECLOSURE OF THE LIEN.

2477

2478

Immediately following the applicable statement, the location in

2479

the disclosure materials where the lien or lien right is

2480

described in detail shall be stated.

2481

     (9)  If the developer or any other person has the right to

2482

increase or add to the recreational facilities at any time after

2483

the establishment of the cooperative whose unit owners have use

2484

rights therein, without the consent of the unit owners or

2485

associations being required, there shall appear a statement in

2486

conspicuous type in substantially the following form:

2487

RECREATIONAL FACILITIES MAY BE EXPANDED OR ADDED WITHOUT CONSENT

2488

OF UNIT OWNERS OR THE ASSOCIATION(S). Immediately following this

2489

statement, the location in the disclosure materials where such

2490

reserved rights are described shall be stated.

2491

     (10)  A statement of whether the developer's plan includes a

2492

program of leasing units rather than selling them, or leasing

2493

units and selling them subject to such leases. If so, there shall

2494

be a description of the plan, including the number and

2495

identification of the units and the provisions and term of the

2496

proposed leases, and a statement in boldfaced type that: THE

2497

UNITS MAY BE TRANSFERRED SUBJECT TO A LEASE.

2498

     (11)  The arrangements for management of the association and

2499

maintenance and operation of the cooperative property and of

2500

other property that will serve the unit owners of the cooperative

2501

property, and a description of the management contract and all

2502

other contracts for these purposes having a term in excess of 1

2503

year, including the following:

2504

     (a)  The names of contracting parties.

2505

     (b)  The term of the contract.

2506

     (c)  The nature of the services included.

2507

     (d)  The compensation, stated on a monthly and annual basis,

2508

and provisions for increases in the compensation.

2509

     (e)  A reference to the volumes and pages of the cooperative

2510

documents and of the exhibits containing copies of such

2511

contracts.

2512

2513

Copies of all described contracts shall be attached as exhibits.

2514

If there is a contract for the management of the cooperative

2515

property, then a statement in conspicuous type in substantially

2516

the following form shall appear, identifying the proposed or

2517

existing contract manager: THERE IS (IS TO BE) A CONTRACT FOR THE

2518

MANAGEMENT OF THE COOPERATIVE PROPERTY WITH (NAME OF THE CONTRACT

2519

MANAGER). Immediately following this statement, the location in

2520

the disclosure materials of the contract for management of the

2521

cooperative property shall be stated.

2522

     (12)  If the developer or any other person or persons other

2523

than the unit owners has the right to retain control of the board

2524

of administration of the association for a period of time which

2525

can exceed 1 year after the closing of the sale of a majority of

2526

the units in that cooperative to persons other than successors or

2527

alternate developers, then a statement in conspicuous type in

2528

substantially the following form shall be included: THE DEVELOPER

2529

(OR OTHER PERSON) HAS THE RIGHT TO RETAIN CONTROL OF THE

2530

ASSOCIATION AFTER A MAJORITY OF THE UNITS HAVE BEEN SOLD.

2531

Immediately following this statement, the location in the

2532

disclosure materials where this right to control is described in

2533

detail shall be stated.

2534

     (13)  If there are any restrictions upon the sale, transfer,

2535

conveyance, or leasing of a unit, then a statement in conspicuous

2536

type in substantially the following form shall be included: THE

2537

SALE, LEASE, OR TRANSFER OF UNITS IS RESTRICTED OR CONTROLLED.

2538

Immediately following this statement, the location in the

2539

disclosure materials where the restriction, limitation, or

2540

control on the sale, lease, or transfer of units is described in

2541

detail shall be stated.

2542

     (14)  If the cooperative is part of a phase project, the

2543

following shall be stated:

2544

     (a)  A statement in conspicuous type in substantially the

2545

following form shall be included: THIS IS A PHASE COOPERATIVE.

2546

ADDITIONAL LAND AND UNITS MAY BE ADDED TO THIS COOPERATIVE.

2547

Immediately following this statement, the location in the

2548

disclosure materials where the phasing is described shall be

2549

stated.

2550

     (b)  A summary of the provisions of the declaration

2551

providing for the phasing.

2552

     (c)  A statement as to whether or not residential buildings

2553

and units which are added to the cooperative may be substantially

2554

different from the residential buildings and units originally in

2555

the cooperative, and, if the added residential buildings and

2556

units may be substantially different, there shall be a general

2557

description of the extent to which such added residential

2558

buildings and units may differ, and a statement in conspicuous

2559

type in substantially the following form shall be included:

2560

BUILDINGS AND UNITS WHICH ARE ADDED TO THE COOPERATIVE MAY BE

2561

SUBSTANTIALLY DIFFERENT FROM THE OTHER BUILDINGS AND UNITS IN THE

2562

COOPERATIVE. Immediately following this statement, the location

2563

in the disclosure materials where the extent to which added

2564

residential buildings and units may substantially differ is

2565

described shall be stated.

2566

     (d)  A statement of the maximum number of buildings

2567

containing units, the maximum and minimum number of units in each

2568

building, the maximum number of units, and the minimum and

2569

maximum square footage of the units that may be contained within

2570

each parcel of land which may be added to the cooperative.

2571

     (15)  If the cooperative is created by conversion of

2572

existing improvements, the following information shall be stated:

2573

     (a)  The information required by s. 719.616.

2574

     (b)  A caveat that there are no express warranties unless

2575

they are stated in writing by the developer.

2576

     (16)  A summary of the restrictions, if any, to be imposed

2577

on units concerning the use of any of the cooperative property,

2578

including statements as to whether there are restrictions upon

2579

children and pets, and reference to the volumes and pages of the

2580

cooperative documents where such restrictions are found, or if

2581

such restrictions are contained elsewhere, then a copy of the

2582

documents containing the restrictions shall be attached as an

2583

exhibit.

2584

     (17)  If there is any land that is offered by the developer

2585

for use by the unit owners and that is neither owned by them nor

2586

leased to them, the association, or any entity controlled by unit

2587

owners and other persons having the use rights to such land, a

2588

statement shall be made as to how such land will serve the

2589

cooperative. If any part of such land will serve the cooperative,

2590

the statement shall describe the land and the nature and term of

2591

service, and the cooperative documents or other instrument

2592

creating such servitude shall be included as an exhibit.

2593

     (18)  The manner in which utility and other services,

2594

including, but not limited to, sewage and waste disposal, water

2595

supply, and storm drainage, will be provided and the person or

2596

entity furnishing them.

2597

     (19)  An explanation of the manner in which the

2598

apportionment of common expenses and ownership of the common

2599

areas have been determined.

2600

     (20)  An estimated operating budget for the cooperative and

2601

the association, and a schedule of the unit owner's expenses

2602

shall be attached as an exhibit and shall contain the following

2603

information:

2604

     (a)  The estimated monthly and annual expenses of the

2605

cooperative and the association that are collected from unit

2606

owners by assessments.

2607

     (b)  The estimated monthly and annual expenses of each unit

2608

owner for a unit, other than assessments payable to the

2609

association, payable by the unit owner to persons or entities

2610

other than the association, and the total estimated monthly and

2611

annual expense. There may be excluded from this estimate expenses

2612

that are personal to unit owners, which are not uniformly

2613

incurred by all unit owners, or which are not provided for or

2614

contemplated by the cooperative documents, including, but not

2615

limited to, the costs of private telephone; maintenance of the

2616

interior of cooperative units, which is not the obligation of the

2617

association; maid or janitorial services privately contracted for

2618

by the unit owners; utility bills billed directly to each unit

2619

owner for utility services to his or her unit; insurance premiums

2620

other than those incurred for policies obtained by the

2621

cooperative; and similar personal expenses of the unit owner. A

2622

unit owner's estimated payments for assessments shall also be

2623

stated in the estimated amounts for the times when they will be

2624

due.

2625

     (c)  The estimated items of expenses of the cooperative and

2626

the association, except as excluded under paragraph (b),

2627

including, but not limited to, the following items, which shall

2628

be stated either as an association expense collectible by

2629

assessments or as unit owners' expenses payable to persons other

2630

than the association:

2631

     1.  Expenses for the association and cooperative:

2632

     a.  Administration of the association.

2633

     b.  Management fees.

2634

     c.  Maintenance.

2635

     d.  Rent for recreational and other commonly used areas.

2636

     e.  Taxes upon association property.

2637

     f.  Taxes upon leased areas.

2638

     g.  Insurance.

2639

     h.  Security provisions.

2640

     i.  Other expenses.

2641

     j.  Operating capital.

2642

     k.  Reserves.

2643

     l.  Fee payable to the division.

2644

     2.  Expenses for a unit owner:

2645

     a.  Rent for the unit, if subject to a lease.

2646

     b.  Rent payable by the unit owner directly to the lessor or

2647

agent under any recreational lease or lease for the use of

2648

commonly used areas, which use and payment are a mandatory

2649

condition of ownership and are not included in the common expense

2650

or assessments for common maintenance paid by the unit owners to

2651

the association.

2652

     (d)  The following statement in conspicuous type: THE BUDGET

2653

CONTAINED IN THIS OFFERING CIRCULAR HAS BEEN PREPARED IN

2654

ACCORDANCE WITH THE COOPERATIVE ACT AND IS A GOOD FAITH ESTIMATE

2655

ONLY AND REPRESENTS AN APPROXIMATION OF FUTURE EXPENSES BASED ON

2656

FACTS AND CIRCUMSTANCES EXISTING AT THE TIME OF ITS PREPARATION.

2657

ACTUAL COSTS OF SUCH ITEMS MAY EXCEED THE ESTIMATED COSTS. SUCH

2658

CHANGES IN COST DO NOT CONSTITUTE MATERIAL ADVERSE CHANGES IN THE

2659

OFFERING.

2660

     (e)  Each budget for an association prepared by a developer

2661

consistent with this subsection shall be prepared in good faith

2662

and shall reflect accurate estimated amounts for the required

2663

items in paragraph (c) at the time of the filing of the offering

2664

circular with the division, and subsequent increased amounts of

2665

any item included in the association's estimated budget that are

2666

beyond the control of the developer shall not be considered an

2667

amendment that would give rise to rescission rights set forth in

2668

s. 719.503(1)(a) or (b), nor shall such increases modify, void,

2669

or otherwise affect any guarantee of the developer contained in

2670

the offering circular or any purchase contract. It is the intent

2671

of this paragraph to clarify existing law.

2672

     (f)  The estimated amounts shall be stated for a period of

2673

at least 12 months and may distinguish between the period prior

2674

to the time unit owners other than the developer elect a majority

2675

of the board of administration and the period after that date.

2676

     (21)  A schedule of estimated closing expenses to be paid by

2677

a buyer or lessee of a unit and a statement of whether title

2678

opinion or title insurance policy is available to the buyer and,

2679

if so, at whose expense.

2680

     (22)  The identity of the developer and the chief operating

2681

officer or principal directing the creation and sale of the

2682

cooperative and a statement of its and his or her experience in

2683

this field.

2684

     (23)  Copies of the following, to the extent they are

2685

applicable, shall be included as exhibits:

2686

     (a)  The cooperative documents, or the proposed cooperative

2687

documents if the documents have not been recorded.

2688

     (b)  The articles of incorporation creating the association.

2689

     (c)  The bylaws of the association.

2690

     (d)  The ground lease or other underlying lease of the

2691

cooperative.

2692

     (e)  The management agreement and all maintenance and other

2693

contracts for management of the association and operation of the

2694

cooperative and facilities used by the unit owners having a

2695

service term in excess of 1 year.

2696

     (f)  The estimated operating budget for the cooperative and

2697

the required schedule of unit owners' expenses.

2698

     (g)  A copy of the floor plan of the unit and the plot plan

2699

showing the location of the residential buildings and the

2700

recreation and other common areas.

2701

     (h)  The lease of recreational and other facilities that

2702

will be used only by unit owners of the subject cooperative.

2703

     (i)  The lease of facilities used by owners and others.

2704

     (j)  The form of unit lease, if the offer is of a leasehold.

2705

     (k)  A declaration of servitude of properties serving the

2706

cooperative but not owned by unit owners or leased to them or the

2707

association.

2708

     (l)  The statement of condition of the existing building or

2709

buildings, if the offering is of units in an operation being

2710

converted to cooperative ownership.

2711

     (m)  The statement of inspection for termite damage and

2712

treatment of the existing improvements, if the cooperative is a

2713

conversion.

2714

     (n)  The form of agreement for sale or lease of units.

2715

     (o)  A copy of the agreement for escrow of payments made to

2716

the developer prior to closing.

2717

     (p)  A copy of the documents containing any restrictions on

2718

use of the property required by subsection (16).

2719

     (24)  Any prospectus or offering circular complying with the

2720

provisions of former ss. 711.69 and 711.802 may continue to be

2721

used without amendment, or may be amended to comply with the

2722

provisions of this chapter.

2723

     (25)  A brief narrative description of the location and

2724

effect of all existing and intended easements located or to be

2725

located on the cooperative property other than those in the

2726

declaration.

2727

     (26)  If the developer is required by state or local

2728

authorities to obtain acceptance or approval of any dock or

2729

marina facility intended to serve the cooperative, a copy of such

2730

acceptance or approval acquired by the time of filing with the

2731

division pursuant to s. 719.502 or a statement that such

2732

acceptance has not been acquired or received.

2733

     (27)  Evidence demonstrating that the developer has an

2734

ownership, leasehold, or contractual interest in the land upon

2735

which the cooperative is to be developed.

2736

     Section 48.  Section 719.508, Florida Statutes, is amended

2737

to read:

2738

     719.508  Regulation by Division of Hotels and

2739

Restaurants.--In addition to the authority, regulation, or

2740

control exercised by the Division of Florida Land Sales,

2741

Condominiums, Timeshares, and Mobile Homes pursuant to this act

2742

with respect to cooperatives, buildings included in a cooperative

2743

property shall be subject to the authority, regulation, or

2744

control of the Division of Hotels and Restaurants of the

2745

Department of Business and Professional Regulation, to the extent

2746

provided for in chapters 399 and 509.

2747

     Section 49.  Paragraph (a) of subsection (2) of section

2748

719.608, Florida Statutes, is amended to read:

2749

     719.608  Notice of intended conversion; time of delivery;

2750

content.--

2751

     (2)(a)  Each notice of intended conversion shall be dated

2752

and in writing. The notice shall contain the following statement,

2753

with the phrases of the following statement which appear in upper

2754

case printed in conspicuous type:

2755

2756

     These apartments are being converted to cooperative by  

2757

(name of developer)  , the developer.

2758

     1.  YOU MAY REMAIN AS A RESIDENT UNTIL THE EXPIRATION OF

2759

YOUR RENTAL AGREEMENT. FURTHER, YOU MAY EXTEND YOUR RENTAL

2760

AGREEMENT AS FOLLOWS:

2761

     a.  If you have continuously been a resident of these

2762

apartments during the last 180 days and your rental agreement

2763

expires during the next 270 days, you may extend your rental

2764

agreement for up to 270 days after the date of this notice.

2765

     b.  If you have not been a continuous resident of these

2766

apartments for the last 180 days and your rental agreement

2767

expires during the next 180 days, you may extend your rental

2768

agreement for up to 180 days after the date of this notice.

2769

     c.  IN ORDER FOR YOU TO EXTEND YOUR RENTAL AGREEMENT, YOU

2770

MUST GIVE THE DEVELOPER WRITTEN NOTICE WITHIN 45 DAYS AFTER THE

2771

DATE OF THIS NOTICE.

2772

     2.  IF YOUR RENTAL AGREEMENT EXPIRES IN THE NEXT 45 DAYS,

2773

you may extend your rental agreement for up to 45 days after the

2774

date of this notice while you decide whether to extend your

2775

rental agreement as explained above. To do so, you must notify

2776

the developer in writing. You will then have the full 45 days to

2777

decide whether to extend your rental agreement as explained

2778

above.

2779

     3.  During the extension of your rental agreement you will

2780

be charged the same rent that you are now paying.

2781

     4.  YOU MAY CANCEL YOUR RENTAL AGREEMENT AND ANY EXTENSION

2782

OF THE RENTAL AGREEMENT AS FOLLOWS:

2783

     a.  If your rental agreement began or was extended or

2784

renewed after May 1, 1980, and your rental agreement, including

2785

extensions and renewals, has an unexpired term of 180 days or

2786

less, you may cancel your rental agreement upon 30 days' written

2787

notice and move. Also, upon 30 days' written notice, you may

2788

cancel any extension of the rental agreement.

2789

     b.  If your rental agreement was not begun or was not

2790

extended or renewed after May 1, 1980, you may not cancel the

2791

rental agreement without the consent of the developer. If your

2792

rental agreement, including extensions and renewals, has an

2793

unexpired term of 180 days or less, you may, however, upon 30

2794

days' written notice cancel any extension of the rental

2795

agreement.

2796

     5.  All notices must be given in writing and sent by mail,

2797

return receipt requested, or delivered in person to the developer

2798

at this address:   (name and address of developer)  .

2799

     6.  If you have continuously been a resident of these

2800

apartments during the last 180 days:

2801

     a.  You have the right to purchase your apartment and will

2802

have 45 days to decide whether to purchase. If you do not buy the

2803

unit at that price and the unit is later offered at a lower

2804

price, you will have the opportunity to buy the unit at the lower

2805

price. However, in all events your right to purchase the unit

2806

ends when the rental agreement or any extension of the rental

2807

agreement ends or when you waive this right in writing.

2808

     b.  Within 90 days you will be provided purchase information

2809

relating to your apartment, including the price of your unit and

2810

the condition of the building. If you do not receive this

2811

information within 90 days, your rental agreement and any

2812

extension will be extended 1 day for each day over 90 days until

2813

you are given the purchase information. If you do not want this

2814

rental agreement extension, you must notify the developer in

2815

writing.

2816

     7.  If you have any questions regarding this conversion or

2817

the Cooperative Act, you may contact the developer or the state

2818

agency which regulates cooperatives: The Division of Florida Land

2819

Sales, Condominiums, Timeshares, and Mobile Homes, (Tallahassee

2820

address and telephone number of division)  .

2821

     Section 50.  Subsection (7) of section 720.301, Florida

2822

Statutes, is amended to read:

2823

     720.301  Definitions.--As used in this chapter, the term:

2824

     (7) "Division" means the Division of Florida Land Sales,

2825

Condominiums, Timeshares, and Mobile Homes in the Department of

2826

Business and Professional Regulation.

2827

     Section 51.  Subsection (2) of section 720.401, Florida

2828

Statutes, is amended to read:

2829

     720.401  Prospective purchasers subject to association

2830

membership requirement; disclosure required; covenants;

2831

assessments; contract cancellation.--

2832

     (2)  This section does not apply to any association

2833

regulated under chapter 718, chapter 719, chapter 721, or chapter

2834

723 or to a subdivider registered under chapter 498; and also

2835

does not apply if disclosure regarding the association is

2836

otherwise made in connection with the requirements of chapter

2837

718, chapter 719, chapter 721, or chapter 723.

2838

     Section 52.  Subsection (11) of section 721.05, Florida

2839

Statutes, is amended to read:

2840

     721.05  Definitions.--As used in this chapter, the term:

2841

     (11) "Division" means the Division of Florida Land Sales,

2842

Condominiums, Timeshares, and Mobile Homes of the Department of

2843

Business and Professional Regulation.

2844

     Section 53.  Paragraph (d) of subsection (2) of section

2845

721.07, Florida Statutes, is amended to read:

2846

     721.07  Public offering statement.--Prior to offering any

2847

timeshare plan, the developer must submit a filed public offering

2848

statement to the division for approval as prescribed by s.

2849

721.03, s. 721.55, or this section. Until the division approves

2850

such filing, any contract regarding the sale of that timeshare

2851

plan is subject to cancellation by the purchaser pursuant to s.

2852

721.10.

2853

     (2)

2854

     (d)  A developer shall have the authority to deliver to

2855

purchasers any purchaser public offering statement that is not

2856

yet approved by the division, provided that the following shall

2857

apply:

2858

     1.  At the time the developer delivers an unapproved

2859

purchaser public offering statement to a purchaser pursuant to

2860

this paragraph, the developer shall deliver a fully completed and

2861

executed copy of the purchase contract required by s. 721.06 that

2862

contains the following statement in conspicuous type in

2863

substantially the following form which shall replace the

2864

statements required by s. 721.06(1)(g):

2865

2866

The developer is delivering to you a public offering statement

2867

that has been filed with but not yet approved by the Division of

2868

Florida Land Sales, Condominiums, Timeshares, and Mobile Homes.

2869

Any revisions to the unapproved public offering statement you

2870

have received must be delivered to you, but only if the revisions

2871

materially alter or modify the offering in a manner adverse to

2872

you. After the division approves the public offering statement,

2873

you will receive notice of the approval from the developer and

2874

the required revisions, if any.

2875

2876

Your statutory right to cancel this transaction without any

2877

penalty or obligation expires 10 calendar days after the date you

2878

signed your purchase contract or the date on which you receive

2879

the last of all documents required to be given to you pursuant to

2880

section 721.07(6), Florida Statutes, or 10 calendar days after

2881

you receive revisions required to be delivered to you, if any,

2882

whichever is later. If you decide to cancel this contract, you

2883

must notify the seller in writing of your intent to cancel. Your

2884

notice of cancellation shall be effective upon the date sent and

2885

shall be sent to   (Name of Seller)   at   (Address of Seller)  .

2886

Any attempt to obtain a waiver of your cancellation right is void

2887

and of no effect. While you may execute all closing documents in

2888

advance, the closing, as evidenced by delivery of the deed or

2889

other document, before expiration of your 10-day cancellation

2890

period, is prohibited.

2891

2892

     2.  After receipt of approval from the division and prior to

2893

closing, if any revisions made to the documents contained in the

2894

purchaser public offering statement materially alter or modify

2895

the offering in a manner adverse to a purchaser, the developer

2896

shall send the purchaser such revisions together with a notice

2897

containing a statement in conspicuous type in substantially the

2898

following form:

2899

2900

The unapproved public offering statement previously delivered to

2901

you, together with the enclosed revisions, has been approved by

2902

the Division of Florida Land Sales, Condominiums, Timeshares, and

2903

Mobile Homes. Accordingly, your cancellation right expires 10

2904

calendar days after you sign your purchase contract or 10

2905

calendar days after you receive these revisions, whichever is

2906

later. If you have any questions regarding your cancellation

2907

rights, you may contact the division at [insert division's

2908

current address].

2909

2910

     3.  After receipt of approval from the division and prior to

2911

closing, if no revisions have been made to the documents

2912

contained in the unapproved purchaser public offering statement,

2913

or if such revisions do not materially alter or modify the

2914

offering in a manner adverse to a purchaser, the developer shall

2915

send the purchaser a notice containing a statement in conspicuous

2916

type in substantially the following form:

2917

2918

The unapproved public offering statement previously delivered to

2919

you has been approved by the Division of Florida Land Sales,

2920

Condominiums, Timeshares, and Mobile Homes. Revisions made to the

2921

unapproved public offering statement, if any, are either not

2922

required to be delivered to you or are not deemed by the

2923

developer, in its opinion, to materially alter or modify the

2924

offering in a manner that is adverse to you. Accordingly, your

2925

cancellation right expired 10 days after you signed your purchase

2926

contract. A complete copy of the approved public offering

2927

statement is available through the managing entity for inspection

2928

as part of the books and records of the plan. If you have any

2929

questions regarding your cancellation rights, you may contact the

2930

division at [insert division's current address].

2931

     Section 54.  Subsection (8) of section 721.08, Florida

2932

Statutes, is amended to read:

2933

     721.08  Escrow accounts; nondisturbance instruments;

2934

alternate security arrangements; transfer of legal title.--

2935

     (8)  An escrow agent holding escrowed funds pursuant to this

2936

chapter that have not been claimed for a period of 5 years after

2937

the date of deposit shall make at least one reasonable attempt to

2938

deliver such unclaimed funds to the purchaser who submitted such

2939

funds to escrow. In making such attempt, an escrow agent is

2940

entitled to rely on a purchaser's last known address as set forth

2941

in the books and records of the escrow agent and is not required

2942

to conduct any further search for the purchaser. If an escrow

2943

agent's attempt to deliver unclaimed funds to any purchaser is

2944

unsuccessful, the escrow agent may deliver such unclaimed funds

2945

to the division and the division shall deposit such unclaimed

2946

funds in the Division of Florida Land Sales, Condominiums,

2947

Timeshares, and Mobile Homes Trust Fund, 30 days after giving

2948

notice in a publication of general circulation in the county in

2949

which the timeshare property containing the purchaser's timeshare

2950

interest is located. The purchaser may claim the same at any time

2951

prior to the delivery of such funds to the division. After

2952

delivery of such funds to the division, the purchaser shall have

2953

no more rights to the unclaimed funds. The escrow agent shall not

2954

be liable for any claims from any party arising out of the escrow

2955

agent's delivery of the unclaimed funds to the division pursuant

2956

to this section.

2957

     Section 55.  Section 721.26, Florida Statutes, is amended to

2958

read:

2959

     721.26  Regulation by division.--The division has the power

2960

to enforce and ensure compliance with the provisions of this

2961

chapter, except for parts III and IV, using the powers provided

2962

in this chapter, as well as the powers prescribed in chapters

2963

498, 718, and 719. In performing its duties, the division shall

2964

have the following powers and duties:

2965

     (1)  To aid in the enforcement of this chapter, or any

2966

division rule adopted or order promulgated or issued pursuant to

2967

this chapter, the division may make necessary public or private

2968

investigations within or outside this state to determine whether

2969

any person has violated or is about to violate this chapter, or

2970

any division rule adopted or order promulgated or issued pursuant

2971

to this chapter.

2972

     (2)  The division may require or permit any person to file a

2973

written statement under oath or otherwise, as the division

2974

determines, as to the facts and circumstances concerning a matter

2975

under investigation.

2976

     (3)  For the purpose of any investigation under this

2977

chapter, the director of the division or any officer or employee

2978

designated by the director may administer oaths or affirmations,

2979

subpoena witnesses and compel their attendance, take evidence,

2980

and require the production of any matter which is relevant to the

2981

investigation, including the identity, existence, description,

2982

nature, custody, condition, and location of any books, documents,

2983

or other tangible things and the identity and location of persons

2984

having knowledge of relevant facts or any other matter reasonably

2985

calculated to lead to the discovery of material evidence. Failure

2986

to obey a subpoena or to answer questions propounded by the

2987

investigating officer and upon reasonable notice to all persons

2988

affected thereby shall be a violation of this chapter. In

2989

addition to the other enforcement powers authorized in this

2990

subsection, the division may, at its discretion, apply to the

2991

circuit court for an order compelling compliance.

2992

     (4)  The division may prepare and disseminate a prospectus

2993

and other information to assist prospective purchasers, sellers,

2994

and managing entities of timeshare plans in assessing the rights,

2995

privileges, and duties pertaining thereto.

2996

     (5)  Notwithstanding any remedies available to purchasers,

2997

if the division has reasonable cause to believe that a violation

2998

of this chapter, or of any division rule adopted or order

2999

promulgated or issued pursuant to this chapter, has occurred, the

3000

division may institute enforcement proceedings in its own name

3001

against any regulated party, as such term is defined in this

3002

subsection:

3003

     (a)1.  "Regulated party," for purposes of this section,

3004

means any developer, exchange company, seller, managing entity,

3005

owners' association, owners' association director, owners'

3006

association officer, manager, management firm, escrow agent,

3007

trustee, any respective assignees or agents, or any other person

3008

having duties or obligations pursuant to this chapter.

3009

     2.  Any person who materially participates in any offer or

3010

disposition of any interest in, or the management or operation

3011

of, a timeshare plan in violation of this chapter or relevant

3012

rules involving fraud, deception, false pretenses,

3013

misrepresentation, or false advertising or the disbursement,

3014

concealment, or diversion of any funds or assets, which conduct

3015

adversely affects the interests of a purchaser, and which person

3016

directly or indirectly controls a regulated party or is a general

3017

partner, officer, director, agent, or employee of such regulated

3018

party, shall be jointly and severally liable under this

3019

subsection with such regulated party, unless such person did not

3020

know, and in the exercise of reasonable care could not have

3021

known, of the existence of the facts giving rise to the violation

3022

of this chapter. A right of contribution shall exist among

3023

jointly and severally liable persons pursuant to this paragraph.

3024

     (b)  The division may permit any person whose conduct or

3025

actions may be under investigation to waive formal proceedings

3026

and enter into a consent proceeding whereby an order, rule, or

3027

letter of censure or warning, whether formal or informal, may be

3028

entered against that person.

3029

     (c)  The division may issue an order requiring a regulated

3030

party to cease and desist from an unlawful practice under this

3031

chapter and take such affirmative action as in the judgment of

3032

the division will carry out the purposes of this chapter.

3033

     (d)1.  The division may bring an action in circuit court for

3034

declaratory or injunctive relief or for other appropriate relief,

3035

including restitution.

3036

     2.  The division shall have broad authority and discretion

3037

to petition the circuit court to appoint a receiver with respect

3038

to any managing entity which fails to perform its duties and

3039

obligations under this chapter with respect to the operation of a

3040

timeshare plan. The circumstances giving rise to an appropriate

3041

petition for receivership under this subparagraph include, but

3042

are not limited to:

3043

     a.  Damage to or destruction of any of the accommodations or

3044

facilities of a timeshare plan, where the managing entity has

3045

failed to repair or reconstruct same.

3046

     b.  A breach of fiduciary duty by the managing entity,

3047

including, but not limited to, undisclosed self-dealing or

3048

failure to timely assess, collect, or disburse the common

3049

expenses of the timeshare plan.

3050

     c.  Failure of the managing entity to operate the timeshare

3051

plan in accordance with the timeshare instrument and this

3052

chapter.

3053

3054

If, under the circumstances, it appears that the events giving

3055

rise to the petition for receivership cannot be reasonably and

3056

timely corrected in a cost-effective manner consistent with the

3057

timeshare instrument, the receiver may petition the circuit court

3058

to implement such amendments or revisions to the timeshare

3059

instrument as may be necessary to enable the managing entity to

3060

resume effective operation of the timeshare plan, or to enter an

3061

order terminating the timeshare plan, or to enter such further

3062

orders regarding the disposition of the timeshare property as the

3063

court deems appropriate, including the disposition and sale of

3064

the timeshare property held by the owners' association or the

3065

purchasers. In the event of a receiver's sale, all rights, title,

3066

and interest held by the owners' association or any purchaser

3067

shall be extinguished and title shall vest in the buyer. This

3068

provision applies to timeshare estates, personal property

3069

timeshare interests, and timeshare licenses. All reasonable costs

3070

and fees of the receiver relating to the receivership shall

3071

become common expenses of the timeshare plan upon order of the

3072

court.

3073

     3.  The division may revoke its approval of any filing for

3074

any timeshare plan for which a petition for receivership has been

3075

filed pursuant to this paragraph.

3076

     (e)1.  The division may impose a penalty against any

3077

regulated party for a violation of this chapter or any rule

3078

adopted thereunder. A penalty may be imposed on the basis of each

3079

day of continuing violation, but in no event may the penalty for

3080

any offense exceed $10,000. All accounts collected shall be

3081

deposited with the Chief Financial Officer to the credit of the

3082

Division of Florida Land Sales, Condominiums, Timeshares, and

3083

Mobile Homes Trust Fund.

3084

     2.a.  If a regulated party fails to pay a penalty, the

3085

division shall thereupon issue an order directing that such

3086

regulated party cease and desist from further operation until

3087

such time as the penalty is paid; or the division may pursue

3088

enforcement of the penalty in a court of competent jurisdiction.

3089

     b.  If an owners' association or managing entity fails to

3090

pay a civil penalty, the division may pursue enforcement in a

3091

court of competent jurisdiction.

3092

     (f)  In order to permit the regulated party an opportunity

3093

either to appeal such decision administratively or to seek relief

3094

in a court of competent jurisdiction, the order imposing the

3095

penalty or the cease and desist order shall not become effective

3096

until 20 days after the date of such order.

3097

     (g)  Any action commenced by the division shall be brought

3098

in the county in which the division has its executive offices or

3099

in the county where the violation occurred.

3100

     (h)  Notice to any regulated party shall be complete when

3101

delivered by United States mail, return receipt requested, to the

3102

party's address currently on file with the division or to such

3103

other address at which the division is able to locate the party.

3104

Every regulated party has an affirmative duty to notify the

3105

division of any change of address at least 5 business days prior

3106

to such change.

3107

     (6)  The division has authority to adopt rules pursuant to

3108

ss. 120.536(1) and 120.54 to implement and enforce the provisions

3109

of this chapter.

3110

     (7)(a)  The use of any unfair or deceptive act or practice

3111

by any person in connection with the sales or other operations of

3112

an exchange program or timeshare plan is a violation of this

3113

chapter.

3114

     (b)  Any violation of the Florida Deceptive and Unfair Trade

3115

Practices Act, ss. 501.201 et seq., relating to the creation,

3116

promotion, sale, operation, or management of any timeshare plan

3117

shall also be a violation of this chapter.

3118

     (c) The division may is authorized to institute proceedings

3119

against any such person and take any appropriate action

3120

authorized in this section in connection therewith,

3121

notwithstanding any remedies available to purchasers.

3122

     (8)  The failure of any person to comply with any order of

3123

the division is a violation of this chapter.

3124

     Section 56.  Section 721.28, Florida Statutes, is amended to

3125

read:

3126

     721.28 Division of Florida Land Sales, Condominiums,

3127

Timeshares, and Mobile Homes Trust Fund.--All funds collected by

3128

the division and any amounts paid as fees or penalties under this

3129

chapter shall be deposited in the State Treasury to the credit of

3130

the Division of Florida Land Sales, Condominiums, Timeshares, and

3131

Mobile Homes Trust Fund created by s. 718.509 498.019.

3132

     Section 57.  Paragraph (c) of subsection (1) of section

3133

721.301, Florida Statutes, is amended to read:

3134

     721.301  Florida Timesharing, Vacation Club, and Hospitality

3135

Program.--

3136

     (1)

3137

     (c)  The director may designate funds from the Division of

3138

Florida Land Sales, Condominiums, Timeshares, and Mobile Homes

3139

Trust Fund, not to exceed $50,000 annually, to support the

3140

projects and proposals undertaken pursuant to paragraph (b). All

3141

state trust funds to be expended pursuant to this section must be

3142

matched equally with private moneys and shall comprise no more

3143

than half of the total moneys expended annually.

3144

     Section 58.  Section 721.50, Florida Statutes, is amended to

3145

read:

3146

     721.50  Short title.--This part may be cited as the

3147

"McAllister Act" in recognition and appreciation for the years of

3148

extraordinary and insightful contributions by Mr. Bryan C.

3149

McAllister, Examinations Supervisor of the former, Division of

3150

Florida Land Sales, Condominiums, and Mobile Homes.

3151

     Section 59.  Subsection (1) of section 723.003, Florida

3152

Statutes, is amended to read:

3153

     723.003  Definitions.--As used in this chapter, the

3154

following words and terms have the following meanings unless

3155

clearly indicated otherwise:

3156

     (1) The term "division" means the Division of Florida Land

3157

Sales, Condominiums, Timeshares, and Mobile Homes of the

3158

Department of Business and Professional Regulation.

3159

     Section 60.  Paragraph (e) of subsection (5) of section

3160

723.006, Florida Statutes, is amended to read:

3161

     723.006  Powers and duties of division.--In performing its

3162

duties, the division has the following powers and duties:

3163

     (5)  Notwithstanding any remedies available to mobile home

3164

owners, mobile home park owners, and homeowners' associations, if

3165

the division has reasonable cause to believe that a violation of

3166

any provision of this chapter or related any rule promulgated

3167

pursuant hereto has occurred, the division may institute

3168

enforcement proceedings in its own name against a developer,

3169

mobile home park owner, or homeowners' association, or its

3170

assignee or agent, as follows:

3171

     (e)1.  The division may impose a civil penalty against a

3172

mobile home park owner or homeowners' association, or its

3173

assignee or agent, for any violation of this chapter, a properly

3174

adopted promulgated park rule or regulation, or a rule adopted or

3175

regulation promulgated pursuant hereto. A penalty may be imposed

3176

on the basis of each separate violation and, if the violation is

3177

a continuing one, for each day of continuing violation, but in no

3178

event may the penalty for each separate violation or for each day

3179

of continuing violation exceed $5,000. All amounts collected

3180

shall be deposited with the Chief Financial Officer to the credit

3181

of the Division of Florida Land Sales, Condominiums, Timeshares,

3182

and Mobile Homes Trust Fund.

3183

     2.  If a violator fails to pay the civil penalty, the

3184

division shall thereupon issue an order directing that such

3185

violator cease and desist from further violation until such time

3186

as the civil penalty is paid or may pursue enforcement of the

3187

penalty in a court of competent jurisdiction. If a homeowners'

3188

association fails to pay the civil penalty, the division shall

3189

thereupon pursue enforcement in a court of competent

3190

jurisdiction, and the order imposing the civil penalty or the

3191

cease and desist order shall not become effective until 20 days

3192

after the date of such order. Any action commenced by the

3193

division shall be brought in the county in which the division has

3194

its executive offices or in which the violation occurred.

3195

     Section 61.  Section 723.009, Florida Statutes, is amended

3196

to read:

3197

     723.009 Division of Florida Land Sales, Condominiums,

3198

Timeshares, and Mobile Homes Trust Fund.--All proceeds from the

3199

fees, penalties, and fines imposed pursuant to this chapter shall

3200

be deposited into the Division of Florida Land Sales,

3201

Condominiums, Timeshares, and Mobile Homes Trust Fund created by

3202

s. 718.509 498.019. Moneys in this fund, as appropriated by the

3203

Legislature pursuant to chapter 216, may be used to defray the

3204

expenses incurred by the division in administering the provisions

3205

of this chapter.

3206

     Section 62.  Paragraph (c) of subsection (2) of section

3207

723.0611, Florida Statutes, is amended to read:

3208

     723.0611  Florida Mobile Home Relocation Corporation.--

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     (2)

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     (c)  The corporation shall, for purposes of s. 768.28, be

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considered an agency of the state. Agents or employees of the

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corporation, members of the board of directors of the

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corporation, or representatives of the Division of Florida Land

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Sales, Condominiums, Timeshares, and Mobile Homes shall be

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considered officers, employees, or agents of the state, and

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actions against them and the corporation shall be governed by s.

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768.28.

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     Section 63.  This act shall take effect July 1, 2008.

CODING: Words stricken are deletions; words underlined are additions.

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