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1983) (upholding injunction against association for violation of bylaw prohibiting religious display). Clarification of how this will harmonize with the Religious Freedom Restoration Act of 1998, chapter 761, Florida Statutes, would be desirable.

It is unclear if this provision would be challenged under the establishment of religion clauses in the federal and state constitutions.

Section 53, amending section 720.303, F.S., repeals common law rights of action a unit owner might have, which may raise challenges to abridgement of rights under the access to courts provision, article I, section 21, of the Florida Constitution.

Section 57, amending section 720.306, F.S., repeals “quorum” requirements It is unknown if this is to be retroactively applied to existing bylaws and whether, if so, an impairment of contract rights issue might be raised.

Section 58, amending section 720.307(5), F.S., applying developer transfer of association control to all “existing” associations and repealing the grandfathering provision raises a question of retroactive application and impairment of contract rights under article I, section 10, of the Florida Constitution.

Section 61, amending section 720.3086, F.S., revoking developer rights of use in association property raises a question of retroactive application and impairment of contract rights under article I, section 10, of the Florida Constitution.

B. RULE-MAKING AUTHORITY:

The bill requires the division to adopt a form for use in voting to waive or reduce reserve funding. Section 63 of the bill which creates s. 720.501, F.S. establishes agency regulation over homeowner associations and requires the division to adopt rules by January 1, 2007, which date is before the effective date of the act and therefore would require an amendment.

C. DRAFTING ISSUES OR OTHER COMMENTS:

In its analysis of the bill, the Department of Business and Professional Regulation noted the following legal issues:

The authority to prosecute unit owner abuse cases under other federal and state laws may conflict with the prosecution authority granted to other agencies. It is also uncertain as to the division’s prosecutorial authority where the abuse rises to the level of a criminal abuse, such as the case where an association employee or board member commits an aggravated assault on a unit owner, or an independent contractor working on the condominium commits a violent crime against a unit owner. It is unclear if torts, such as defamation, will constitute an abuse for which the division must take action.

Further, the definition of abuse in this context with a broad reference to state and federal laws and condominium documents might be challenged as overbroad and vague. Review Simmons v. State, 944 So. 2d 317 (Fla. 2006), which upheld prohibited Internet solicitation of minors. This case provides the constitutional standards for these challenges to statutes. Vagueness arises where a law does not give fair notice to a person that his contemplated conduct is forbidden or if it encourages arbitrary enforcement. Over breadth concerns the application of a law to conduct that is constitutionally protected in addition to prohibited conduct.

Because abuse is defined, courts may well uphold it under existing standards. Over breadth is a due process notice provision. All persons are deemed to know all laws and their own documents. So, this might also pass the test. We would spend untold hours trying to figure out under which law if any a unit owner had been abused.

It is unclear how the abuse provision will interact with the SLAPP suit defense if the division brings an action against a unit owner board member for abusing another unit owner in statements made to a

STORAGE NAME:

h1373b.JEC.doc

DATE:

4/10/2007

PAGE: 17

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