“Records Inspection Rights Explained,” News-Press

“Records Inspection Rights Explained,” News-Press

Q: I asked my association’s manager for a copy of our community pool’s permit and was told to go get it from the Florida Department of Health myself. Is our manager required to provide a permit like this to the owners when asked for a copy? (B.B., via e-mail)

A: The answer to your question depends on a number of factors, including what rules your association has in place governing the manner of requesting copies of the official records, how the request for a copy of the permit was made (verbally, by e-mail, or by letter), and if your community is a homeowners’ or condominium association.

Section 720.3030(4)(a) of the Florida Homeowners’ Association Act requires the association to maintain copies of all permits, plans, and specifications related to improvements constructed on the common areas, for at least seven years, as part of the official records. By comparison, Sections 718.111(12)(a)1 and 718.111(12)(b) of the Florida Condominium Act provide that a copy of all permits and plans, from the inception of the condominium association, provided by the developer at turnover are to be permanently maintained as part of its official records.

Both laws require the association to make official records, with limited exceptions that do not include permits, available for inspection or copying by any member of the association or an authorized representative within 10 business days after receipt by the board or its designee (e.g., its manager) of a written request. The association may adopt reasonable rules regarding the manner in which official records are requested, inspected, and copied.

The fact that the pool permit is part of the Florida Department of Health’s public records would not relieve an association of these requirements. However, not all community pools are subject to state regulation (excluding with respect to water quality). While “public swimming pools” generally include those serving subdivisions, condominium and cooperative associations that do not operate as a public lodging establishment (with any unit or building being available, or being held out to the public as being available, for rent regularly to guests) with a pool serving no more than 32 units, are not considered “public swimming pools” and are exempt from Florida Department of Health regulation pursuant to the provisions of Section 514.0115(2)(a), Florida Statutes. Such facilities are to apply to the Department on approved forms to recognize this exempt status and renew same bi-annually pursuant to Rule 64E-9.0035(1)(a)1-2, Florida Administrative Code.

A member who is wrongfully denied access to official records is entitled to the actual damages or minimum damages for the association’s failure to comply. Minimum damages are $50.00 per calendar day for up to 10 days, beginning on the 11th working day after receipt of the written request. Attorneys’ fees in legal action to obtain records access are also recoverable. For condominiums, there is also a state agency where complaints can be lodged, homeowners’ associations are generally unregulated, and there is no equivalent state agency in the homeowners’ association context.

Q: Is there a state agency that regulates management companies? Where can we go report incompetent management? (G.G., via e-mail)

A: The Florida Department of Business and Professional Regulation (“DBPR”) is the agency that licenses and regulates community association managers and community association management firms that are required to be licensed under Chapter 468 of the Florida Statutes.

Under Chapter 455 of the Florida Statutes, the DBPR has the authority to revoke, suspend, or deny renewal of a license. DBPR can also reprimand or fine for the licensee’s violation. DBPR does not have authority to order restitution or assess damages, this is for the courts.

“Incompetence” is obviously a subjective judgment and not a punishable offense unless a violation of law is involved. Judging the performance of management, and whether a relationship should be continued or terminated, is the board’s job.

Joseph Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.