Fining Hearings May Be “Off Limits” During the Pandemic

Filed Under: Discussion

As many readers of our monthly newsletter already know, in order to be valid, a fine for the violation of a community association’s documents must be levied in strict adherence to the requirements of the Florida Statutes.

It is the Board of Directors which imposes a fine, and it is the fining committee’s responsibility to approve or disapprove the levy of the fine, based on its findings at a fining committee hearing. Owners have the right to appear at these hearings to argue their case, creating a fair balance between the interests of owners and the Association; not unlike a small government.

To a varying degree, the COVID-19 pandemic has affected the operation of every level of Florida’s government, from the capitol seat in Tallahassee, right down to the local community association. One readily apparent affect the pandemic has had on our community associations is the postponement of board and committee meetings. Gatherings are risky, and groups of ten or more are outright prohibited. Fining has become especially tricky, considering the board vote to impose a fine, and the fining committee’s review of it, cannot occur without a meeting. While some communities understandably have curtailed the level of enforcement of minor offenses during these difficult times, others are dealing with longstanding violations that began long before the pandemic made the news headlines. Previous articles from our firm have addressed Board and membership meetings, but what about fining? Can the hearing be scheduled by “teleconference”?

Unfortunately, there appears to be no practical solution to this problem as the homeowner must be allowed to introduce documents or other evidence which they feel is relevant to the fine. The Board could likely develop some protocol, such as advance submission of documents and evidence, but the process would be entirely too burdensome and likely lead to potential challenges. Instead, we recommend postponing any fining hearings until after the stay at home order has been lifted, or consider focusing on alternative remedies, such as demand letters and enforcement through legal counsel.

As always, consult your Association counsel for advice concerning your specific issues.