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New Term Limit Law Not Retroactive

Q: In one of your recent columns, you wrote about a new law that imposes term limits of eight years on condominium directors. Is this retroactive? (S.L. via e-mail)

A: In my opinion, no. Of course, lawyers’ opinions are just that, and what the courts have to say is what ultimately counts.

My interpretation is based on a long-standing rule of statutory construction. Florida courts have consistently held that condominium legislation is not to be retroactively applied, unless the legislatures evinces an intent that it be applied retroactively. There are certain exceptions to this rule for “procedural” and “remedial” changes to the statute.

If legislation is intended to be retroactively applied, then a second level of analysis needs to take place which largely focuses on constitutional issues. However, in the case of the new “term limit” law, there was no statement of retroactive application in the new law, so no need to consider constitutional implications.

Of further relevance is the fact that a similar law was enacted a couple of years ago (dealing with term limits on two-year terms) and most attorneys conversant in this field of law, as well as the state agency charged with enforcement of the law, took the position that it was likewise was not to be retroactively applied.

However, internal term limits contained in an association’s bylaws have been legal for a number of years, and would still be effective regardless of the recent statutory changes.

Q: My homeowners’ association recently hired a management company. While the decision to hire the management company was discussed at a series of board meetings, there was no vote by the membership for this significant cost to our association. Can the board simply hire a manager without a vote of the owners when we’ve never had one before? (J.C. via e-mail)

A: Generally, the decision to hire a management company is a decision for the board of directors. That is because the governing documents for most associations either grant this specific authority to the board, and/or provide that all corporate powers can be exercised by the board except where the statute or governing documents specifically require a members’ vote.

Typically, members are afforded the right to vote on amendments to the governing documents, election of the board of directors, the waiver or nonscheduled use of certain reserves funds, and other items as set forth in the statute or the community’s governing documents. Unless there is some specific contrary requirement in your governing documents, which would be unusual (though I do see it from time to time), the board of directors can retain or disengage a manager or management company, without a vote of the membership.

Q: My condominium association holds a number of social events throughout the year and in order to help pay for the cost of these events, our social committee holds various types of fundraisers including raffles and “50/50 drawings.” Some owners are now stating that these drawings are “illegal” and that someone could go to jail. Is this true? (D.G. via e-mail)

A: Your question is timely in light of recent news reports regarding a local political candidate facing allegations that they broke the law by running a “50/50 game” at a campaign event. While I am not familiar with the details of those allegations, and how the law may or may not apply there, it does present an opportunity for community associations to review the issue.

Chapter 849 of the Florida Statutes regulates gambling in Florida. Section 849.09 specifically prohibits a person from promoting or conducting any “lottery for money or anything of value.” This section of the law essentially prohibits all raffle-type games including “50/50 drawings.” While there are exceptions for raffles conducted by certain charitable organizations, these exceptions do not apply to community associations.

Violation of Chapter 849 by holding a raffle or lottery is a first degree misdemeanor for the first offense. Subsequent violations can result in felony criminal charges.

Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.

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