||Third District Court of Appeal State of Florida, July
Term, A.D. 2010
||January 5, 2011
||TAHITI BEACH HOMEOWNERS ASSOCIATION, INC.,
WENDELL G. PFEFFER AND LETICIA ALBARRAN PFEFFER, APPELLEES.
||An Appeal from the Circuit Court for Miami-Dade
County, Marc Schumacher, Judge. Lower Tribunal No. 08-56328
||Hall, Lamb and Hall, and Andrew C. Hall and G. Raemy
Charest, for appellant.
||Becker & Poliakoff, and Lilliana M. Farinas-Sabogal
and Steven M. Davis, for appellees.
||The opinion of the court was delivered by: Salter, J.
||Not final until disposition of timely filed motion
||Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior
||Tahiti Beach Homeowners Association, Inc., appeals a
partial final summary judgment in favor of Mr. and Mrs. Pfeffer regarding
the Association's complaint to foreclose a lien for a $285,000 fine. The
fine, imposed for the alleged violation of a "Homesite Construction
Rule,"XXX 1 did not meet the requirements
of section 720.305(2), Florida Statutes (2007), regulating the imposition
of fines by homeowners' associations.
||The issue for decision below and here is a question
of law: does the statute, enacted in 1995, apply to the Homesite
Construction Rule, adopted by the Association in 1993 or 1994, with
respect to alleged violations of the Rule occurring 2007-09? We answer the
q uestion in the affirmative.
||The caption to section 720.305 is "Obligations
of members; remedies at law or in equity; levy of fines and suspension of
use rights." The limitations on fines, and the requirements for prior
notice and a hearing, imposed by the statute are unquestionably procedural
and remedial in nature. In Fogg v. Southeast Bank, N.A.,
473 So. 2d 1352
, 1353 (Fla. 4th DCA 1985), the Fourth District observed that
"statutes relating to remedies or procedure and including forfeitures
operate retrospectively in the sense that all pending proceedings,
including matters on appeal, are determined under the law in effect at the
time of decision rather than that in effect when the cause of action arose
or some earlier time." This Court followed Fogg in Riano v.
512 So. 2d 1121
(Fla. 3d DCA 1987), holding that a legislative amendment eliminating a
penalty (and lacking a provision expressly limiting the application of the
amendment to contracts entered into after the effective date) is
applicable to contracts entered into before the effective date of the
amendment. In the case of such amendments-but not in the case of
amendments affecting or impairing substantive rights-retrospective
application is required unless the legislation itself provides otherwise.
Here, the pertinent amendments to section 720.305 did not specify that
they would only be applicable to homeowners' association documents entered
into after the effective date of the legislation.
||These conclusions of law take the case out of the
constitutional analysis advanced by the Association. Because penal,
remedial, and procedural issues were addressed in the legislation (rather
than vested, substantive rights), this record presents no constitutional
issue. Nor do we find any merit in the Association's challenge to the
trial court's ruling that "the Association, as a defense to the
counterclaim, never raised the defense of waiver." A review of the
pleadings confirms that the trial court was correct on this point as well.
The Rule requires a property owner's construction or landscaping
activities to be completed within a 24 month period, "time being of
the essence," or face a "penalty" of $10,000 per month (or
any part thereof) from the end of that period until the work is completed.