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Dear Poliakoffs,

In Florida, is it possible to levy a fine (assume all procedures followed per law) for a non-continuing violation? For example, assume that a car parked in the street is a violation as per HOA adopted policy, and that policy includes first providing the owner with a note that a fine may be imposed. If you are constantly providing the owner with a warning before a fine, a violation could never become a fine unless there was a continuing violation. Is there any way to implement fines for intermittent violations or is it only used for continuous violations?

Signed, B.A.

Dear B.A.,

The vast majority of condo and HOA fines are for single, intermittent violations. The procedure you described (requiring that each violator be given a warning before a fine is applied) is either just an association policy, or it is possibly something written into the fining procedure describe in the declaration or bylaws.

More typically, in the event of a single violation the association will simply promulgate a fine against the person, sometimes using a specific fining schedule depending on the nature of the violation and whether it is a repeat violation by the same resident. The HOA Act requires that the person to be fined be given at least fourteen days written notice of the fine, and an opportunity for a hearing in front of an independent grievance committee, which committee can either say “yes” or “no” to the fine (it cannot change the amount of the fine, just decide whether or not it is applied).

If your policy is not memorialized in your governing documents, the board can simply amend the rules to provide that violations can be penalized without warning; or, instead, that a violator is only given a single warning, and then any future violations can be penalized immediately. With parking violations, that warning is typically in the form of a warning sticker placed on a side window (somewhere that it will not impede the person’s view) or perhaps a warning letter placed under the wiper blade.

Incidentally, I am not a fan of towing as a remedy for illegal parking violations (at least when the car does not present a safety concern and is not parked in another resident’s deeded space). While I do think towing an illegally parked car from association property can be legal, it can also lead to significant complications, including claims for vehicle damage, as well as a risk of being responsible for increased costs and damages in the event a properly parked car is towed by accident.

Dear Poliakoffs,

We are a condo association with 90 owners. We recently had an election where there were 5 applicants, 4 of whom were currently on the board plus a new individual (who actually submitted a resume, the first I have seen in 20+ years of living here). As usual, there was not a quorum, so there was no election. At the board meeting which followed, various items were discussed. The minutes have finally been posted and declared that the previous board of four will continue as before, as a quorum did not attend.

How can we get a fifth member if the new applicant was not accepted? I recall that years ago when a board member quit, the existing board filled the position with one of two applicants who thereafter submitted their names.

What's the legal way to get five members, without an election?

Signed M.B.

Dear M.B.,

It sounds as if your association made a mistake in how it conducted the election.

From your description, you have a five-member board with four occupied seats, and one vacant seat. All of those seats were up for election. You had five candidates submit their names as candidates. Remember that, in a condominium election, there are no nominations from the floor—the only opportunity to nominate candidates is by submitting your name at least 40 days in advance of the election.

The Condominium Act, at Section 718.112, Fla. Stat., says that “an election is not required if the number of vacancies equals or exceeds the number of candidates.” That is the exact situation you described. The statute further states that “if the number of board members whose terms expire at the annual meeting equals or exceeds the number of candidates, the candidates become members of the board effective upon the adjournment of the annual meeting.” That is true, even if the annual meeting fails to achieve a quorum—Florida Administrative Code Rule 61B-23.0021 clarifies that balloting is not necessary to fill a vacancy unless there are two or more eligible candidates for that vacancy, and in such a case (where there are no more candidates than vacancies) the association can simply notify the owners of the names of the new board members.

So, in my opinion, all five candidates were automatically elected to the board, and the quorum at the annual meeting was irrelevant.

Ryan Poliakoff, a partner at Backer Aboud Poliakoff & Foelster, LLP, is a Board Certified Specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff, pioneer of the community association legal industry, tireless advocate, and author of treatises, books and hundreds of articles. Ryan Poliakoff and Gary Poliakoff are co-authors of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living. Email your questions to condocolumn@gmail.com. Please be sure to include your location.

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This article originally appeared on Florida Today: Poliakoff: Fines may be applied for single intermittent violations