Monday, September 26, 2011

Board member eligibility in Florida: what does it mean to have one's civil rights restored?

Last year, HB 1195 transported certain board member eligibility requirements from Chapter 718, F.S. (the Condominium Act) over to Chapter 720, F.S. (the HOA Act). Specifically, members who are delinquent in the payment of any fee, fine or other monetary obligation to the association are ineligible to serve on an HOA board as well as any person who has been convicted of a felony in Florida or in any US District or Territorial Court or in any other jurisdiction where such act would be considered a felony if committed in Florida UNLESS the felon's civil rights have been restored for at least five years as of the date on which such person seeks election to the board.

Before 2008, the language in the Condominium Act pertaining to board member ineligibility as a result of a felony background tied the matter to a former felon's "right to vote" being restored. However, in 2008, the Condominium Act was amended to change that to a requirement that a felon's "civil rights" be restored for at least five years.

Community association election season in Florida is right around the corner which begs the question: does your board know what is meant by the requirement that a candidate's civil rights be restored?

In 2010, The Pierre Association confronted this very issue and sought clarification from the Division of Florida Condominiums, Timeshares and Mobile Homes. The association was inquiring whether a candidate to the board whose civil rights had been partially restored (the right to bear arms had not) was eligible to serve on the condominium board. Years earlier, this particular board candidate had pled guilty to one count of federal mail fraud which is a felony. In 2002, the candidate's federal civil rights were restored; in 2004 his Florida civil rights were also restored.

The association took the position that this individual was not eligible to serve on the condominium board becasue he was not yet authorized to bear arms within his federal civil rights. Civil rights include the following:
- the right to vote
- the right to hold office
- the right to serve on a jury
- the right to bear arms
In the case at hand, the candidate's Florida civil rights were restored by executive order which served to only partially restore his civil rights since the order specifically excluded the right to "own, possess or use firearms." On April 12, 2010, the Division issued a Declaratory Statement (No. 2010009834) stating that the candidate was ineligible to serve on the board until his federal and Florida civil right to possess a firearm along with all other civil rights had been restored for a period of no less than 5 years as of the date on which the candidate seeks election to the board pursuant to Section 718.112(2)(d)1. This law is now also in effect for homeowners' associations in Florida.

Does the inability to bear arms render a candidate for a Florida condominium board ineligible to serve? Turns out it does! While having an ineligible person serve on the board does not automatically nullify any board action taken before such ineligibility is discovered, the preferred course of action is obviously to ensure that directors are all eligible to serve. Now that you know what to look for, keep that in mind when association members start throwing their hats in the ring this election season.