The Florida HOA Battleground (HB 1397): police powers and the loss of fundamental rights

This session must decide on Rep. Robaina’s, the homeowner rights champion, omnibus or “all-inclusive” Community Associations reform bill, HB 1397, with its 190 pages of reforms. (The first 12 and a-half pages just summarize the changes). The bill attempts to deal with both the broader issues of the application of democratic principles and the use of police powers to regulate the acts and actions of HOA governance — requiring necessary actions while prohibiting others. State police power is often used to protect a weaker faction (segment or part of society) from a stronger faction.

HB 1397 jumps right into the application of Florida’s police powers, permitted under the “establish justice”, “insure domestic tranquility”, and “promote the general welfare” objectives of the US Constitution. The bill begins with an addition of subsection (10) to § 20.165, Dept. of Business and Professional Regulation, that adds strong enforcement authority to employees of DBPR, such as to arrest, carry firearms, issue court subpoenas, etc. HB 1397 provides for very strong and very necessary enforcement authority if Florida laws are to have any meaning and standing as a bona fide law instead of a mockery of justice. There are also protections against home invasion by HOA officials and agents (§ 718.111(5)), paralleling that protection already provided to homeowners not living in HOAs by the 4th and 14th Amendments to the US Constitution. These reforms, alone, restore lost rights and freedoms enjoyed by non-HOA residents, and reduce the second-class citizenship of HOA residents. The New America of HOA-land special laws and “constitutions” protected by the state must cease! Rep. Robaina’s bill goes a long way to restore the America of our Founding Fathers being quietly encroached by HOA-land special interests.

The second aspect to HOA reform legislation that concerns the systemic, the very structure of the legal scheme, failings and repudiations of American democracy. While the ends of the homeowner association mandatory governance of subdivisions are desirable in certain respects, the means to achieve these ends have been a disgraceful repudiation of the principles and values of the US Constitution with its concern for the protection of individual rights and freedoms. The very legal scheme or concept of homeowner associations flies in the face of the Constitution and has been defended by the weak argument of voluntary agreement to the loss of individual rights and freedoms by the simple argument, “Well, they still live there, don’t they?”

There are questions of appropriate due process protections that only say “after notice and an opportunity to be heard” fines may be imposed by the board, without explicitly requiring an independent tribunal where witnesses and evidence can be question by the homeowner. And there are questions of “fair elections” procedures, of the need for free speech and access to all relevant information necessary to protect the homeowner from abusive actions by the board, of unusual punishment over miniscule unpaid assessments in terms of the greater loss suffered by foreclosure, where the HOA has not advanced any funds like the mortgage company (which is ascribing public government attributes to the private HOA entity), etc. How can a homeowner file fraud charges, as an example, when access to records is denied and not enforced by statute?

Analyzing a bill of the magnitude of HB 1397 places burdens upon the average homeowner with limited time and resources as opposed to the hired-hand, paid lobbyists of the special interest groups. Homeowners must understand that HB 1397 will be the result, for all practical matters, of a compromise between opposing parties, and the decision to support the bill must so accept this reality of governance. It will be a question of “pluses and minuses.” Trade-offs will be made, but each must be weighed against the balancing scale of justice for the people, first and foremost. Rep. Robaina’s bill is a must! Once passed into law, “blemishes” can be adjusted and will subject to the democratic process of give and take between the homeowners themselves, and between homeowners and the special interests.

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Published in: on April 7, 2009 at 9:32 am  Comments (4)  

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4 CommentsLeave a comment

  1. What is the current status of this proposed reform bill? My HOA has impeding our basic rights and has stricken right at the heart of family, family activities while concurrently breaking the same covenants in which they are accusing me of violating. Civil liberties are being compromised, violated and disregarded. Please advise.

    • This was posted almost a year ago. Go visit http://ccfj.net for more info on Florida.

  2. […] I wrote earlier (see The Florida HOA Battleground (HB 1397): police powers and the loss of fundamental rights),  Homeowners must understand that HB 1397 will be the result, for all practical matters, of a […]

  3. This Blog is not for Q & A. Join HOANET at yahoogroups.com


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