Sunday, May 29, 2011

What You Need to Know About Estoppel Requests!

Estoppels are one of those areas where most people think they know what is entailed in the process but wouldn't place a bet that they are 100% correct. Below is a question from a reader of this blog.

Dear Donna,
I'm a big fan of your blog. I was curious about the legality of a practice that relates to the collection of HOA and Condo dues. I understand that when an amount is owed to the association by a homeowner, bank, 3rd party purchaser, etc., they will request an estoppel in order to determine the full amount due to settle with the association and have the lien released. What is the law regarding what amounts can be included on the estoppel by the collection attorney? Is it legal for a collection attorney to receive an estoppel request, then charge the requestor for work that hasn't yet been completed, then have the all the possible billable work done on the file after the estoppel has been sent in order to collect those attorney's fees from the estoppel requestor?

Dear Reader,
In terms of your questions, when a unit or lot is transferred, in addition to being responsible for future assessments, the new owner will be jointly and severally liable with the previous owner for amounts owed. In order to obtain title that is free of any lien or encumbrance, a third party purchaser, bank, or unit owner will request a payoff amount also known as an Estoppel.

Once requested, the Estoppel must be provided to the owner or the agent of the owner within 15 days. Florida Statutes specifically provide that the association may charge a fee for the preparation of this Estoppel. Any person other than owner that relies upon the figures and pays the amounts reflected in the Estoppel is protected by its terms. In other words, if payment is made in accordance with the Estoppel and the property is transferred, the association cannot later argue that the amounts provided were incorrect. The association must accept as payment in full the amounts listed on the Estoppel. This is not the case, if the owner pays the Estoppel and retains title to the unit. All estoppels will contain an expiration date and, if the sums are not paid by the due date, the amounts will increase as the association may continue with its collection efforts and new assessments may become due.

Although the statutes do not specifically address the scenario you lay out, Reader, about an attorney hurrying up and proceeding with additional work (which is not tied to a hearing deadline or other unavoidable circumstance) during the 15-day time period after the Estoppel is requested, such practice would not , in my opinion, be appropriate.

As indicated above, a fee may be charged for preparation of the Estoppel. It is common and appropriate to charge an up-front the fee for preparation of the Estoppel. This is done to minimize the costs to associations, as it is common for title agents to request numerous Estoppels on a lot or unit without ever paying the amounts due. Florida Statutes further provide that if an Estoppel is requested in conjunction with a sale and the sale does not occur within 30 days, the fee should be refunded to the payor. However, the refund will then become an obligation of the owner and the association may collect the fee in the same manner as if it was an assessment.
There is a separate and distinct statutory provision for a homeowners' association relating to estoppels that can be found in F.S. 720.30851. As for condominiums, the applicable provision is in F.S. 718.116(8). The language in these statutes are practically the same.

Both statutes provide that an estoppel certificate must be provided within 15 days after the date on which the request is made. However, for condominiums, this request must be in writing. Although there is no requirement for a request to be in writing for a homeowners' association, in order to ensure that the association complies with the FDCPA, it is necessary to demand a request be put in writing. One does not want to disclose the debt of an owner to a third party without written authorization.

As far as the tolling period, at first glance, the 15 day period begins with the request for a payoff. The statutes do, however, go on to provide that the association may charge a reasonable fee for the preparation of the Estoppel. Moreover, the statutes provide that the authority to charge for an Estoppel must be “established by a written resolution adopted by the board or provided by a written management, bookkeeping, or maintenance contract and is payable upon the preparation of the certificate.” Under these provisions, many attorneys take the position that the Estoppel fee may be required in advance and, therefore, the tolling period begins upon receipt of the payment.

The statutes do not contain a limit on the number of times an Estoppel may be requested. In today's economic climate, a large portion of Estoppel requests are received in conjunction with short sales. Selling a property through a short sale is a drawn out process, and it is common for an owner to negotiate with a bank over a long period of time. If fees were not charged up-front, associations would receive Estoppel requests every few weeks. By charging a fee in advance, it limits the amount of requests and weeds out the premature requests.

If an association does not comply with the statutory provisions regarding Estoppel requests, a summary proceeding may be brought to compel compliance. The prevailing party in such an action would be entitled to reasonable attorney’s fees.






This work by Donna DiMaggio Berger, Esq. is licensed under a Creative Commons Attribution-NoDerivs 3.0 Generic License.

Wednesday, May 25, 2011

Do Your Association Members Know You Mean Business?

How do you think past headlines regarding lender foreclosures are perceived by those members of your association looking for a new angle to avoid paying maintenance assessments?

Just as your board read the bleak news each day about foreclosure freezes, investor losses, lawsuits, bank write downs and the “robosigning” scandal, so did the members in your community. I recently reviewed some of the depositions of former Bank of America and JP Morgan Chase employees which revealed that these financial institutions and their mortgage servicing departments hired hair stylists, Wal-Mart floor workers and assembly line workers and gave them the title of "foreclosure expert" with no formal training. Many of these folks testified that they barely knew what a mortgage was, had trouble defining the terms "affidavit" and "complaint" and some even admitted under oath that they knew they were lying when they signed the banks' foreclosure affidavits.

Signing things you don't understand, however, is just the tip of the iceberg. The real issue is ownership of these loans and who has the right to foreclose. Attorney Generals in all 50 states have publicly stated that they would launch a collective probe into the mortgage industry and many have done so. If you thought the banks were taking a long time to foreclose on delinquent properties in your community up until now, just imagine the amount of judicial scrutiny that will take place over the next few years when that bank's counsel walks into court seeking a foreclosure!
How many of your owners are reading these headlines and breathing a sigh of relief that their own foreclosure will surely be stalled or derailed entirely? How many of these folks think this also means that the association cannot foreclose on them as well?

I know that many of you are expeditiously pursuing delinquent accounts in your communities. How many of you, however, are advising the entire membership (not just the delinquent owners) about what you are doing and why? Have you sent out a letter to your entire membership advising them of the following:

• If they are fighting their bank foreclosure, working on a mortgage modification or if their bank has put its foreclosure on hold, they still must pay the association assessments! It doesn't make much sense to work out your bank issues only to lose your home to your association foreclosure!

• It is much easier for a community association to foreclose on a home than it is for a bank to foreclose on the same property. Mortgage foreclosures can be attacked if the promissory note is lost or missing, if there are problems with the Truth In Lending Form, RESPA violations and now faulty affidavits among other items. Association foreclosures cannot be defeated because the owner challenges the validity of the most recent election, claims the common areas haven't been maintained or has any other complaint other than that the amount is not due and owing.

• Owners with financial difficulties should be advised that avoiding their obligation to the association will only add to those difficulties. What might have been a delinquency of less than $1,000 can quickly become an amount several times more than that if the matter is turned over to the association's attorney for collection.

I recommend that every association send out a letter to its membership reminding them of the association's collection policy, when amounts become delinquent and how long of a grace period is given before the file is sent over to the attorney for collection. This same letter should debunk some of the myths and confusion out there about why and how associations foreclose on homesteaded property and what should be done to avoid becoming another foreclosure statistic. The general purpose of such a letter is to dissuade any owners who think they can use the general confusion and scandal currently being discovered in the banking arena to avoid their obligations to pay their share of your community’s assessments.

We have drafted such a letter for our Firm clients and CAN members. I'm guessing your association attorney can help you in this regard as well. Will the letter cure all that ails your community? Absolutely not, but if reading it convinces one or two of your owners to continue paying their assessments, it is invaluable.

This work by Donna DiMaggio Berger, Esq. is licensed under a Creative Commons Attribution-NoDerivs 3.0 Generic License.

Wednesday, May 18, 2011

Should associations evict tenants who don't respond to demands for rent and how is it done?

Assuming that last year's statutory right to collect rent from tenants in delinquent properties(SB 1196) and this year's clarification that full rent can be demanded (HB 1195) withstand both TCR v. Windsor West and Cohn v. Grand type challenges, should associations be routinely evicting those tenants who do not heed their demand for rent?

To evict or not to evict?

First and foremost, when it comes to evicting tenants who don't tender rent to the association, the board must remember that evicting such tenants costs money and the eviction will not result in the association being paid. If the objective behind proceeding with an eviction is to set an example to other delinquent owners and tenants or to satisfy residents who are upset that there are tenants in delinquent properties that are not tendering rent to the association that is one thing. Also, if a tenant is disruptive or causing problems in the community, then the eviction can be a worthwile expdenditure of funds. However, if none of these non-economic factors come into play, the board may prefer to wait for the foreclosure process to ultimately remove the tenant(s) rather than to incur additional costs with a separate eviction action.

Now, if the board wants to set an example or remove a disruptive tenant, how does it go about evicting the tenant?

The specific process begins after a statutory demand for rent has been made. The eviction process commences with the service of a 3-day notice. That notice can be served by mail, posted on the property or served by a process server. Although service by process is not required, we usually serve the 3-day notice by process on both the tenant and the owner. The 3-day notice must specify the amount of the monthly rental rate and the exact amount of total rent owed to date. The association should have a copy of the lease to confirm the rental rate. A copy of the lesae also serves to establish that there is a tenancy (so that the tenants cannot try and claim that they are merely guests and not paying tenants) and further serves to identify all tenants.

If the association does not have a copy of the lease and does not know the rental rent, some will still proceed by listing the amount of the monthly maintenance instead of the amount of rent on the 3-day notice. This is a somewhat aggressive approach that could be challenged but my firm (and others) have successfully utilized such an approach.

If full payment to the association is not made within three business days after service of the 3-day notice, the association may file an eviction complaint. The complaint is served on the owner and tenant by service of process and those parties have 5 business days to file a response to the eviction complaint (this is a summary proceeding which is why the typical 20 days to respond to a lawsuit does not apply).

If the tenant wishes to challenge the eviction on any basis other than the claim that they have already paid the rent to the association, the tenant must deposit the amount of rents being demanded into the Court's Registry; failure to do so will result in a default. Since most tenants are unlikely to do this, most of these evictions are unopposed. If the tenant fails to answer the complaint and/or deposit the disputed rents, a default final judgment can be obtained (usually by mail and without the need for a hearing) and a Writ of Possession will be issued. The Writ of Possession is then sent to the Sheriff who will then contact the association manager (or whomever else is listed on the Writ) to make an appointment to serve the Writ and oversee the changing of the locks on the property's doors. Thereafter the association should immediately write the landlord/owner and advise that it has keys for the new lock that may be retrieved.

The entire process for an unopposed eviction typically takes 6 weeks depending on the availability of the process server and the judge and costs approximately $1,700 to $2,200 again depending on certain variables.

After having his or her tenant evicted for failing to tender rent to the association, the hope would be that the delinquent owner won't start the process all over again with a new, unwitting tenant but sadly, that is usually exactly what happens.

This work by Donna DiMaggio Berger, Esq. is licensed under a Creative Commons Attribution-NoDerivs 3.0 Generic License.

Friday, May 13, 2011

What is a manager's liability in connection with collection efforts?

With all of the association collection activity taking place these days, the questions being asked more frequently are: Does a licensed community association manager have liability under the Federal Fair Debt Collections Practices Act and the Florida Consumer Credit Practices Act? Can a LCAM prepare and record a Claim of Lien without engaging in the Unlicensed Practice of Law?

I. FDCPA and FCCPA Liability:

It is well settled that the federal Fair Debt Collections Practices Act (FDCPA) and the Florida Consumer Credit Practices Act (FCCPA) apply to the collection of maintenance assessments for condominium and homeowner associations. However, these acts do not apply to collection efforts which the creditor, personally, undertakes to collect on a debt nor do they apply to agents whose collection activities are “incidental to a bona fide fiduciary obligation” or which concern a “debt which was not in default at the time it was obtained by such person.”

In the context of collecting delinquent community association assessments, Courts have held that an association management company IS NOT a “debt collector” under the FDCPA. Courts have held that an association’s management company falls under the exceptions found in Section 1692a(6)(F) of the FDCPA. Specifically, the management company has a fiduciary obligation to collect assessments on behalf of the association. Further, the management company was obligated to collect these assessment debts prior to them being delinquent.

Provided that the management company is obligated to collect assessments on behalf of the Association, preferably through a written Management Agreement, the management company should not be held to be a “debt collector” under the FDCPA or the FCCPA.

II. Claim of Lien Preparation and the UPL:

The preparation of a Claim of Lien by a LCAM, without the assistance of a licensed Florida attorney, constitutes the unauthorized practice of law (UPL). Specifically, in 1996, the Florida Supreme Court issued an advisory opinion on this specific issue and stated as follows:

Drafting both a claim of lien and satisfaction of claim of lien requires a legal description of the property; it establishes rights of the community association with respect to the lien, its duration, renewal information, and action to be taken on it. The claim of lien acts as an encumbrance on the property until it is satisfied. Because of the substantial rights which are determined by these documents, the drafting of them must be completed with the assistance of a licensed attorney.

However, where an attorney provides the LCAM with what amounts to a “fill in the blank” form, the LCAM is not engaging in the unlicensed practice of law by filling out and signing the form. Specifically, a licensed attorney must prepare the lien and provide the LCAM with a form that contains all of the legal aspects of the lien, for example:
1. the legal description of the property;
2. any statements as to the application of the associations declaration;
3. any statement as to the applicability of Florida law;
4. compliance with Florida laws (718.116 and 720.3085) concerning the preparation of assessment liens.

“The completion of a legal form which has been prepared by an attorney, where all that is done is filling in the blanks with missing information, does not constitute the practice of law.”

As an association manager, you can breathe a sigh of relief that you are not deemed to be a “debt collector” under federal and Florida law and therefore are not subject to the often burdensome restrictions and requirements on debt collection practices found in these acts. As an association manager you should also be sure to enlist the aid of a licensed Florida attorney to draft the Claim of Lien to secure delinquent assessments. Your only act in relation to the preparation of a Claim of Lien should be to fill in fact-related blanks on the Claim of Lien form. By following this practice, you will insulate yourself from an unlicensed practice of law claim.

This work by Donna DiMaggio Berger, Esq. is licensed under a Creative Commons Attribution-NoDerivs 3.0 Generic License.

Can HOA's charge an Inspection Fee in addition to a Copying Fee?

A reader of this Blog recently asked the following question:

"Can an HOA impose an Inspection Fee to view official records? My HOA's management firm has said that they require an 'inspection fee' of $20/hour to allow me access to the association's official records. Apparently, the justification is that the management firm must have a member of staff supervise my visit. I contend that neither the HOA or its agent can charge a fee for me to just inspect the records but only in relation to providing copies of the records."

My answer is as follows:

This issue comes up frequently. Here is what the HOA Statute says:

"The association may impose fees to cover the costs of providing copies of the official records, including, without limitation, the costs of copying. The association may charge up to 50 cents per page for copies made on the association's photocopier. If the association does not have a photocopy machine available where the records are kept, or if the records requested to be copied exceed 25 pages in length, the association may have copies made by an outside vendor or management company personnel and may charge the actual cost of copying, including any reasonable costs involving personnel fees and charges at the hourly rate for vendor or employee time to cover administrative costs to the vendor or association."

Some associations try to separate the "personnel" fees from the "copying" function discussed above and charge a fee for merely monitoring the inspection even if the association is not being asked to perform copying services. If you read the language carefully above, that is a very liberal interpretation of what is written. It appears to me that the personnel charge is tied to the copying function and not independent thereof. For communities who have concerns about preserving the sanctity of their documents during the inspection process, they can certainly request an employee or board member to sit in on those inspections. If there is an additional charge for the association employee to perform that function that would be a cost of doing business for the association like any other.

In fact, some owners merely want to look with no need to copy. Others show up with their own portable scanners so there is no need to burden the manager, board member or any other person with that function. Associations who are concerned about nuisance inspection requests can adopt reasonable rules regarding inspections including limiting the number of documents and/or amount of pages that can be requested at one time as well as the number of hours permitted in any one sitting.

For some fortunate associations, the inspection process is a breeze. The documents are well organized, easily reviewed and there are few concerns about nuisance requests or owners showing up with a malicious intent to destroy or alter records. Other associations are not so fortunate and they have endured repeated requests for the same documents and/or requests for catch-all inspections for "everything pertaining to the association since its inception"! Associations would be well advised to the control the process but not thwart it. Any attempt to make the process more difficult or even impossible for an owner to inspect the association's governing records will certainly be met with disfavor by a trier of fact. Speak with your association attorney about how the inspection process can best be handled.

This work by Donna DiMaggio Berger, Esq. is licensed under a Creative Commons Attribution-NoDerivs 3.0 Generic License.

Monday, May 9, 2011

Association's Demand For Rent has been challenged!

Falling under the category of "it was bound to happen," a Fort Myers condominium association and its management company have been sued by a corporation which owns 8 units in the Windsor West Condominium community. TCR Holdings, Inc. bought the units back in 2002 with the intention to rent them out. However, the company soon became delinquent on the properties, failing to pay the association while still maintaining tenants in the units.

The association then took advantage of the changes to the Condominium Act passed during the 2010 Legislative Session enabling them to collect rent from tenants in units that are delinquent with the association. The specific language from Section 718.116(11) is as follows:
If the unit is occupied by a tenant and the unit owner is delinquent in paying any monetary obligation due to the association, the association may make a written demand that the tenant pay the future monetary obligations related to the condominium unit to the association, and the tenant must make such payment. The demand is continuing in nature and, upon demand, the tenant must pay the monetary obligations to the association until the association releases the tenant or the tenant discontinues the tenancy in the unit. The association must mail written notice to the unit owner of the association's demand that the tenant make payments to the association. The association shall, upon request, provide the tenant with written receipts for payments made. A tenant who acts in good faith in response to a written demand from an association is immune from any claim from the unit owner.

The Florida Legislature wisely granted this significant relief to struggling condominium associations last year in recognition of the inherent unfairness of delinquent owners continuing to collect rent from tenants while their neighbors shoulder their share of the community's assessment obligations. Again this Session (which just ended last Friday), the Legislature has revisited the issue and clarified in HB 1195 that associations can demand FULL rent from tenants in delinquent properties as well as creating a statutory form to be used for such rent demand.

TCR Holdings, Inc. apparently had no problem collecting rent while not paying its assessments and balked when the association demanded rent from its tenants and evicted those tenants who didn't pay. As a reesult, TCR filed suit on April 29, 2011 in the U.S. District Court in Fort Myers claiming that the statutory relief granted to associations to collect rent is unconstitutional.

The following link will take you to a copy of the docket sheet in this case and all exhibits including the complaint. The association has not yet made an appearance in the case so association counsel has not responded to the allegations. Stay tuned for more details to follow.
http://www.canfl.com/Documents/TCR%20Holdings%20v%20Windsor%20West%20COA.pdf

This work by Donna DiMaggio Berger, Esq. is licensed under a Creative Commons Attribution-NoDerivs 3.0 Generic License.

Sunday, May 8, 2011

Do Friends Let Friends Buy Condos?

Do Friends Let Friends Buy Condos? That was the message on the bumper sticker on the car in front of me last week. It made me chuckle but then made me think a little longer about what went into the sentiment.

Buying a condominium doesn't have to be a scary or mysterious process and, like planning a wedding without thinking about the potential decades of marriage to follow, deliberation needs to be given to the overall lifestyle choice before signing on the dotted line.

What do you need to think about if you are considering a condominium purchase?

Perhaps the first item on your "To Do" list is to check to see if the condominium community you are considering is FHA approved. In 2009, the Federal Housing Administration announced that it would insure loans on condos only in developments where at least 50% of the units are owner occupied and, for new developments, where at least 30% of the units are already sold. The rules for FHA approval are even tougher for Florida condominiums. If you plan to use an FHA-insured loan for your condominium purchase, you can check if the community is FHA approved at https://entp.hud.gov/idapp/html/condlook.cfm.

Next you should consider if you can easily afford the monthly maintenance fee for your new condominium as well as any unexpected special assessments that might crop up. You certainly can't predict if a hurricane will hit your new home months after purchasing it but you can investigate whether or not the community has reserves for the roof, exterior painting, paving and any other item for which the deferred maintenance or replacement costs exceed $10,000. If the association members have routinely waived or underfunded reserves, please know that this puts you at risk for a special assessment some time in the near future.

Is the community mostly owner or tenant occupied?If that dynamic makes a difference to you, find out ahead of time. Just as important, if you plan on renting out your condominium at some point check to see how permissive or restrictive your community's rules on leasing are. In that same vein, other lifestyle factors which are important to your happiness or livelihood such as owning a pet or pets, driving a commercial vehicle, running a business out of your home, etc. all demand a careful review of the association's governing documents to be sure you can live within the community's framework. If you cannot, don't count on changing the status quo after you move in; better to find a community that meets your current and future needs in this regard. Also, don't count on the fact that the documentary restrictions you find in place at the time of purchase will always stay that way. Association members can and often do vote to change important restrictions and you just might find yourself on the losing end of that vote.

What kind of delinquencies is the community currently experiencing? Again, the answer to this question will impact you in terms of the burden you will be expected to carry. While you are not entitled to a copy of the association's budget, your seller/owner is and should provide a copy to you as well as proof of the association's insurance coverage and information about association deductibles which will again impact your wallet as a new owner.

Finally, talk to a few of the residents you might encounter and look at the community bulletin board, newsletter and/or elevators. Does there seem to be a pervasive feeling of distrust or unease? Is the bulletin board littered with demands for a board recall or accusations of misuse of association funds? If you request your seller/owner to give you a limited power of attorney to attend a specific board or membership meeting, you will have a rare but important opportunity to see how well attended that meeting is, what the hot button topics in the community might be and how the board communicates with those in attendance.

Like any real property purchase, buying a condominium is an important step and can impact your future happiness. If you do your homework and buy in a community that fits your needs, the answer to the question "Do friends let friends buy condos?" is a resounding yes!

Wednesday, May 4, 2011

Budget Ink Drying and Community Association Bill en Route to Governor

Representative George Moraitis (R-Ft. Lauderdale), CAN's House Sponsor, proudly announced that his bill, 1195, was passed by the Florida Senate and is on its way to the Governor to be signed into law. This association package contains numerous consumer-friendly provisions and provides community associations and their homeowners with additional clarity.

Although a freshman lawmaker, Rep. Moraitis worked this bill through the process like a veteran. His door was always open and he reviewed each concern and every argument with a careful and thoughtful eye. As a result, this very good legislation made it through the process during a very difficult legislative session. Your involvement, as a member of CAN, also played a critical part in the success of this measure. And it’s not just me saying so; please see this message from Representative Moraitis:
Thank you Donna - you and your team provided invaluable assistance in ensuring that we passed a great bill. I have received several compliments from other members and attribute much of the success to your participation and advocacy on behalf of our association residents.
I look forward to working on the next bill and to celebrating the passage of this bill for our residents.
George

The Senate companion, SB 530, was sponsored by Sen. Mike Fasano and co-sponsored by Sen. Maria Sachs. Sen. Jeremy Ring was also supportive and helpful with shepherding this bill through the process.

Below is a brief summary of HB 1195 and CAN's Legislative Package included therein.

A key provision of HB 1195, referred to as “Master/Sub” language, will remove financial hurdles for sub associations that want to foreclose on delinquent property in their communities but are reluctant to do so for fear of being jointly and severally liable to a master association for the debts associated with that property The language now found in 1195 removes that hurdle thereby encouraging sub associations to move forward on their foreclosure to get paying owners or tenants in those properties.
In addition to assisting homeowners and associations managing Florida’s foreclosure crisis, the CAN legislation would:
• prohibit felons and delinquent homeowners from serving on HOA boards;

• permit associations to install impact glass and other code compliant windows for hurricane protection;

• grant homeowners in HOAs the same rights as condominium owners with regard to speaking at meetings; and clarify that full rent can be collected from tenants in delinquent properties.

Additional policy changes and technical corrections that were permitted in HB 1195

Florida Legal Aid worked with stakeholders to include language that requires a form notice for tenants when associations are collecting rent from them. This measure should clarify the process of collecting rent from tenants when the owner/landlord and hopefully lead to a smoother process for associations and less litigation.

Additionally, there were numerous glitch fixes added to this bill, such as language that clarifies that homeowners are permitted to access salaries and compensation records of association employees and allow condominium associations to create phone or email directories for homeowners.

For a more thorough analysis and to read the final bill language, please go to CAN’s website.

HB 1195 bill analysis: http://www.canfl.com/Documents/Staff%20Analysis_HB%201195_Final.pdf

HB 1195 final language: http://www.canfl.com/Documents/HB%201195_Final%20Statutory%20Changes.pdf

Budget News – The ink is still drying on the 2011-2012 budget. Legislators must wait 72 hours before voting on the final plan, which sweeps $5.8 million from the Division of Florida Condominiums, Timeshares, and Mobile Homes and allots $7.2 million for its programs.

This work by Donna DiMaggio Berger, Esq. is licensed under a Creative Commons Attribution-NoDerivs 3.0 Generic License.

Association as Employer: Florida's Minimum Wage to Increase!

There are myriad issues that confront associations with employees including wage/hour issues, discrimination pitfalls, workers' compensation concerns and more. It is important that associations who also happen to be employers have their policies and procedures reviewed (and better yet drafted) by experts in this area.

Staying abreast of all laws that impact the employer/employee relationship is also important. Towards that end, a Leon County judge has ruled that the State of Florida was improperly calculating the minimum wage for workers in the state. Effective June 1st, the minimum wage will increase from $7.25 to $7.31 per hour. The minimum wage for tipped employees such as restaurant servers will increase from $4.23 to $4.29 per hour.

In 2004, Floridians voted to amend the Florida Constitution to provide that the state’s minimum wage would increase with inflation. The change for 2011 was based on the “percentage change in the federal Consumer Price Index for urban wage earners and clerical workers in the South Region for the 12-month period prior to September 1, 2010”. For more information on the change, please visit the Florida Agency for Workforce Innovation’s minimum wage bulletin at: http://www.floridajobs.org/minimumwage/index.htm.

If you have any questions or comments, please let me know.

Sunday, May 1, 2011

What rules bind the lobbyists who shape Florida's laws?

As the 2011 Florida Legislative Session winds down, let's see how much you know about the rules binding the lobbyists who play a key role in shaping the laws we all must follow.

How would you have answered each of the following questions?


1. A state legislator may accept a cup of coffee and muffin from Goodwill Industries while touring a facility for legislative business in their district?

False. A gift ban passed on the last day of the 2005 special session prohibits legislators from grabbing a cup of coffee or a sandwich with constituents. This session, legislation was filed to change this so that legislators could attend receptions and local events free of charge if the cost was $25 or less. The bill stalled in committee.

For more on the Legislature’s gift rule go to: http://www.ethics.state.fl.us/publications/gifts%20info_2007_web.pdf

2. A legislator may not accept a $10,000 campaign contribution from a company with interests pending before the legislature?

False. Legislators may set up political committees, which can accept unlimited funds.

3. Legislators are prohibited from voting on measures that benefit themselves or their family members?

False. Despite a statewide grand jury report calling for ethics reform, legislation implementing these changes has stalled for the fourth year in a row. This year’s version, SB 86, would prohibit lawmakers from voting on issues that would almost exclusively benefit them or their relatives or the companies for whom they work. Under the bill, lawmakers would have to publicly disclose their potential conflicts of interest before abstaining from voting.

For more information on this bill, go to: http://www.flsenate.gov/Session/Bill/2011/0086
And click on the “analysis” tab.

4. A lobbyist is prohibited from representing entities that may have conflicting interests?

False. Lobbyists may represent numerous clients, even those with conflicting interests. Lobbyists are required to file with the state and report who they represent. This information can be found at:
http://www.leg.state.fl.us/Lobbyist/index.cfm?Tab=lobbyist

Additionally, since 2005, lobbyists have been required to report their income from clients. This measure was upheld by the Florida Supreme Court in 2009.

This work by Donna DiMaggio Berger, Esq. is licensed under a Creative Commons Attribution-NoDerivs 3.0 Generic License.