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According to the department, the proposed legislation will increase state revenues by $11.2 million in Fiscal Year 2007-08 and by approximately $8.2 million in future years. The bill will also increase the department’s expenditures by approximately $15 million in Fiscal Year 2007-08, with a recurring negative impact of approximately $11.5 million in future years. The department also estimates 102 full- time equivalent (FTE) positions will be needed to handle the anticipated workload increase.

      • III.


  • A.


    • 1.

      Applicability of Municipality/County Mandates Provision: None.

    • 2.


The Department of Business and Professional Regulation in its analysis of the bill has raised the following issues:

Section 23, creating a new subsection 718.111(15), F.S., if applied retroactively, may impair contract rights already established in many declarations of condominium. If the intent is to apply this provision retroactively, the intent should be expressed. Further clarification as to a shortfall of proceeds would be helpful where the shortfall is caused by a high deductible. Further clarification of unit damages in light of those portions a unit covered by the association’s insurance policy under section 718.111(11) and those portions insured by the unit owner would harmonize these two provisions.

Section 26, amending section 718.113(1), F.S., repealing the association’s authority to assess the repair costs of a limited common element it is required to maintain, if applied retroactively, would raise a constitutional impairment of contract issue and leave the association with an obligation to repair but no funds with which to do so.

Perhaps. sections 26 and 54, amending sections 718.113(7) and 720.304(7), F.S., engrafts First Amendment rights into the association’s rules on the use of the common elements.

One question is whether the state may legislate that all community associations are “state actors” for purposes of imposing constitutional restrictions on what is otherwise private actions. Under Shelley v. Kramer, 334 U.S. 1 (1948), constitutional challenges may only be brought against private organizations where such organizations are performing public functions or where there is significant state involvement. Constitutional challenges to association covenants are private actions not based on constitutional rights. See Sabghir v. Eagle Trace Community Ass’n, Inc., 1997 WL 33635315 (S.D.Fla. 1997) (resident’s constitutional challenge to restrictive covenant against placement of election signs on property would not be dismissed until court determined whether state action existed).

Corporations are creatures of statute and have those rights and obligations imposed by law, so the second part of the question is whether the legislature may impose constitutional restrictions on corporations.

The religious assembly and religiously mandated display statutory impositions on associations and unit owners will overturn Neuman v. Grandview at Emerald Hills, Inc., 861 So. 2d 494 (Fla. 4th DCA 2003), which held that under section 718.123, Florida Statutes, an association may prohibit religious services on the common elements without violating the statutory right of peaceful assembly, and similar line of cases. See also Tower Forty-One Ass’n, Inc. v. Levitt, 426 So. 2d 1290 (Fla. 3d DCA





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