Fines and the Applicable Florida Statute

 April 30 , 2021 

The Shores of Jupiter 

Board of Directors 

And, 

Realtime Property Management 

140 Intracoastal Pointe Drive #403 

Jupiter, Florida 33458 

Attn.: Beth White, LCAM 

RE: Fines and the applicable Florida Statute 720, (Florida HOA Act) the Shores of Jupiter 

While we appreciate one of the Board of Directors of the Shores of Jupiter efforts in setting up the fine provisions in the Architectural Control Committee Guidelines, hereafter ACC, in a November 10 2016 document, a document that is in our possession, his efforts were flawed as he relied on the 2015 Florida Statute as amended. This is not the controlling Statute in our opinion as our Articles of Incorporation, By-Laws, and Declaration of Protective Covenants pre-date this year of the Statute and the aforesaid documents are absent any language, “Kaufman Language”, for the incorporation of future Statute changes and amendments. Therefore our documents are stuck in time, (the past), and are controlled by the Statute in force at the time of their creation or recertification or restatement. The latest year of restatement and recording was in 2005. These documents become contractual obligations by the parties by both the member, (Owner), and the Association, (including the Board and all Committees). The question needs to be put as to “would the Controlling Statute be 1986, 2005, or later?”, note that Statute 720 did not exist in 1986. Gail Marcarelli, 6127 Winding Lake Drive 

Our homeowners’ association documents and controlling Declaration of Protective Covenants were initially developed in 1986 with the most recent approval and recording in 2005. These documents will adopt the Florida HOA Act as it existed in 2005 without specific language, (the Kaufman Language), to the contrary, and may be the earlier 1986 Statute depending on how they were written. This is significant because the Contracts Clause of both the United States and the Florida Constitution prohibit the State from passing substantive laws that impair existing contract rights. Community association documents are contracts, containing rights and covenants running with the land that owners (members) become bound by when obtaining the deed to their properties. The Contracts Clause precludes the enforcement of amendments to substantive Statutes, (those that affect a persons economic and property rights and the ability to regulate those rights), to previously existing contracts and exempts procedural Statutes. An example of Kaufman Language is a clause that states, or is relatively similar too: 

See, 1977 347 So.2d 627 Kaufman v. Shere, 

“this Declaration is governed by the Florida HOA Act, Chapter 720, Florida Statutes, as it exists on the date hereof and as it may be amended from time to time.” (Emphasis added.) 

The emphasized portion—“and as it may be amended from time to time”—is the Kaufman Language, which effectively incorporates all future statutory amendments into the declaration. Without this phrase, or similar language qualifying as Kaufman Language, an association is subject to substantive Florida Law as it existed at the time of the association’s development or creation and approval by the membership. Without Kaufman Language our Association cannot take advantage of these changes to Florida Law. Kaufman Language, named after the 1977 case of Kaufman v. Shere noted above, is language contained within a declaration that expressly incorporates subsequently enacted amendments to the Florida Statutes into the association’s governing documents. Gail Marcarelli, 6127 Winding Lake Drive 

See above. Our Association Declaration of Protective Covenants does not have this language, nor does it appear in any of our documents. 

See the 1977 case; 347 So.2d 627 KAUFMAN v. SHERE, 

Also see: 

361 So.2d 128 – CENTURY VILLAGE, INC. v. WELLINGTON, ETC., Supreme Court of Florida. 

357 So.2d 249 – PALM-AIRE COUNTRY CLUB, ETC v. F.P.A. CORP., District Court of Appeal of Florida, Fourth District. 

376 So.2d 37 – GOLDENBERG v. DOME CONDOMINIUM ASS’N, District Court of Appeal of Florida, Third District. 

371 So.2d 581 – DOME CONDO. ASS’N, INC. v. GOLDENBERG, District Court of Appeal of Florida, Third District. 

385 So.2d 103 – GOLDEN GLADES CLUBS v. ASS’N OF GOLDEN GLADES, District Court of Appeal of Florida, Third District. 

410 So.2d 926 – TOWER HOUSE CONDOMINIUM, INC. v. MILLMAN, District Court of Appeal of Florida, Third District. 

395 So.2d 1204 – CORAL ISLE E. CONDOMINIUM v. SNYDER, District Court of Appeal of Florida, Third District. 

421 So.2d 623 – SANS SOUCI v. DIVISION OF FLORIDA LAND, ETC., District Court of Appeal of Florida, First District. Gail Marcarelli, 6127 Winding Lake Drive 

422 So.2d 884 – STEINHARDT v. RUDOLPH, District Court of Appeal of Florida, Third District. 

421 So.2d 534 – SANTA ROSA BBFH, INC. v. ISLAND ECHOS COND. ASSOC., District Court of Appeal of Florida, First District. 

439 So.2d 832 – ANGORA ENTERPRISES, INC. v. COLE, Supreme Court of Florida. 

441 So.2d 154 – ASS’N OF GOLDEN GLADES, CONDO. CLUB, INC. v. GOLDEN GLADES CLUB RECREATION CORP., District Court of Appeal of Florida, Third District. 

485 So.2d 418 – FIREMAN’S FUND INS. CO. v. POHLMAN, Supreme Court of Florida. 

507 So.2d 622 – HALPERN v. RETIREMENT BUILDERS, INC., District Court of Appeal of Florida, Fourth District. 

515 So.2d 1327 – ISLAND MANOR APTS. v. DIV. OF LAND SALES, District Court of Appeal of Florida, Second District. 

514 So.2d 381 – PLAZA TOWERS N. CONDO v. PLAZA REC. DEV., District Court of Appeal of Florida, Third District. 

525 So.2d 488 – ENEGREN v. MARATHON CTY. CLUB CONDO., District Court of Appeal of Florida, Third District. 

545 So.2d 435 – OCEANS FOUR CONDO. ASS’N, INC. v. STAFFORD, District Court of Appeal of Florida, Fifth District. Gail Marcarelli, 6127 Winding Lake Drive 

567 So.2d 1026 – SKY LAKE GARDENS REC., INC. v. SKY LAKE GARDENS NOS. 1, 3, AND 4, INC., District Court of Appeal of Florida, Third District. 

574 So.2d 1135 – SKY LAKE GARDENS RECREATION, INC. v. SKY LAKE GARDENS NOS. 1, 3, AND 4, INC., District Court of Appeal of Florida, Third District. 

882 So.2d 1015 – CAMPBELL v. SHORES AT COCO PLUM CONDOMINIUM, District Court of Appeal of Florida, Third District. 

990 F.Supp.2d 1344 – U.S. v. FOREST HILL GARDENS EAST CONDOMINIUM ASS’N, United States District Court, S.D. Florida. 

THREE EIGHTY NINE CORPORATION v. COHN, United States District Court, S.D. Florida. 

169 So.3d 145 – PUDLIT 2 JOINT v. WESTWOOD GARDENS, District Court of Appeal of Florida, Fourth District. 

208 So.3d 755 – THE ASSOCIATION v. TROPICAL, District Court of Appeal of Florida, Third District. 

221 So.3d 710 – BEACON HILL HOMEOWNERS v. COLFIN AH-FLA., District Court of Appeal of Florida, Third District. 

253 So.3d 715 – DIMITRI v. COMMERCIAL CENTER OF MIAMI, District Court of Appeal of Florida, Third District. 

290 So.3d 99 – DANIA BEACH BOAT CLUB CONDO. v. FORCIER, District Court of Appeal of Florida, Fourth District. Gail Marcarelli, 6127 Winding Lake Drive 

The 2005 Statute 720, which applied at the time of our most recent revision and restatement of the Declaration of Protective Covenants is the 2005 Statute and is shown below. The 2005 Statute 720 does not permit fines unless they are specifically authorized by our governing documents. Our governing documents did not, and do not, provide for a fine as a different remedy is clearly specified. In fact, they are silent on the issue of fines. To change this would require an amendment to our documents with a vote by 66% of the membership, not just the Board of Directors, (ACC Guideline changes also require a vote and such changes may not be inconsistent with the controlling document, see below as I will address this later in this letter). The applicable State Statute is the 2005 Florida Statute 720 and not the 2015 Florida Statute 720, or later, as was cited in the Rules of our ACC. This is the specific language that was contained in the 2005 Florida Statute 720. 

2005: 

720.305 Obligations of members; remedies at law or in equity; levy of fines and suspension of use rights; failure to fill sufficient number of vacancies on board of directors to constitute a quorum; appointment of receiver upon petition of any member.– 

(2) If the governing documents so provide, an association may suspend, for a reasonable period of time, the rights of a member or a member’s tenants, guests, or invitees, or both, to use common areas and facilities and may levy reasonable fines, not to exceed $100 per violation, against any member or any tenant, guest, or invitee. A fine may be levied on the basis of each day of a continuing violation, with a single notice and opportunity for hearing, except that no such fine shall exceed $1,000 in the aggregate unless otherwise provided in the governing documents. A fine shall not become a lien against a parcel. In any action to recover a fine, the prevailing party is entitled to collect its reasonable attorney’s fees and costs from the nonprevailing party as determined by the court. Gail Marcarelli, 6127 Winding Lake Drive 

Below is the specific language the current Board and ACC is relying on from the 2015 Florida Statute 720. Again, we believe that this is NOT the controlling Statute version and that any challenge to the use of this later Statute would prevail absent any Kaufman Language subjecting our Association to the prevailing parties Attorney Fees and Court Costs. 

2015: 

720.305 Obligations of members; remedies at law or in equity; levy of fines and suspension of use rights.— 

(2) The association may levy reasonable fines. A fine may not exceed $100 per violation against any member or any member’s tenant, guest, or invitee for the failure of the owner of the parcel or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association unless otherwise provided in the governing documents. A fine may be levied by the board for each day of a continuing violation, with a single notice and opportunity for hearing, except that the fine may not exceed $1,000 in the aggregate unless otherwise provided in the governing documents. A fine of less than $1,000 may not become a lien against a parcel. In any action to recover a fine, the prevailing party is entitled to reasonable attorney fees and costs from the nonprevailing party as determined by the court. 

This is the current Florida Statute 720. 

2020: 

720.305 Obligations of members; remedies at law or in equity; levy of fines and suspension of use rights.— 

(2) The association may levy reasonable fines. A fine may not exceed $100 per violation against any member or any member’s tenant, guest, or invitee for the failure of the owner of the parcel or its occupant, licensee, or invitee to Gail Marcarelli, 6127 Winding Lake Drive 

comply with any provision of the declaration, the association bylaws, or reasonable rules of the association unless otherwise provided in the governing documents. A fine may be levied by the board for each day of a continuing violation, with a single notice and opportunity for hearing, except that the fine may not exceed $1,000 in the aggregate unless otherwise provided in the governing documents. A fine of less than $1,000 may not become a lien against a parcel. In any action to recover a fine, the prevailing party is entitled to reasonable attorney fees and costs from the nonprevailing party as determined by the court. 

Note the differences between the three different years wording below. This wording is very important. If the controlling Statute is the 2005 Statute, then our Association does not have the authority to fine as a fining provision is absent in our controlling documents as voted on by the entire membership. If the controlling Statute is the 2015 or later Statute, then the Association does have the authority to fine the members. We believe, and expect the courts to agree with us, that the correct Statute is the 2005 version, or earlier as our documents were merely restated and not changed, and not the later versions of the Statute as the prevailing Statute would be the one in place at the time of the Documents creation. 

The fining provision of the Florida 2005 Statute paraphrased states: 

(2) If the governing documents so provide……may levy reasonable fines, not to exceed $100 per violation, against any member or any tenant, guest, or invitee…………unless otherwise provided in the governing document. A fine shall not become a lien against a parcel

Verses the Florida 2015 Statute and 2020 Statute paraphrased which state: 

(2) The association may levy reasonable fines……A fine of less than $1,000 may not become a lien against a parcel. Gail Marcarelli, 6127 Winding Lake Drive 

We believe that we are correct in our assessment and that any challenge brought on this legal argument against the Association would prevail against the Association subjecting our Association to all damages and the Legal Fees of all parties. We are desirous of the fact that the Association consulted their Attorney in this matter and that said Attorney provided the 2015 Florida Statute 720 for his basis that our Association has the authority to levy fines per that Statute pursuant to an Email from Evan Bachove sent Tuesday January 19, 2016. 

Furthermore, our Declaration of Protective Covenants has prescribed a remedy for these issues that do not include the ability to fine our members. The remedy prescribed in our Declaration of Protective Covenants is in conflict with the ACC Guidelines on the issue of fining at this time. When this happens, the controlling document, (Declaration of Protective Covenants), is the authority and not the ACC Guidelines. The Declaration of Protective Covenants takes precedence over the ACC Guidelines. The controlling remedy specified is that the Association has a right to make the correction and then assess the owner for the cost associated with bringing the property into compliance. This assessment would be subject to a lien against the property if not paid as assessments are subject to liens. This is the Associations remedy as it is stated in the controlling documents. Our ACC guidelines are not consistent with this remedy, and therefore NOT enforceable in our opinion. Our opinion is supported by the Appellate decisions and the Case Law as noted above in detail. This is the stated remedy as stated in our Declaration of Protective Covenants: 

AMENDED AND RESTATED DECLARATION OF PROTECTIVE 

COVENANTS, RESTRICTIONS, RESERVATIONS, 

SERVITUDES AIID EASEMENTS, AFFECTING THE PLAT OF THE SHORES 

STATE OF FLORIDA 

COUNTY OF PALM BEACH 

The foregoing instrument was acknowledged before me this day of 

,2005

PARAGRAPH XIX 

OWNERS SPECIAL RIGHTS OF THE ASSOCIATION – MAINTENANCE Gail Marcarelli, 6127 Winding Lake Drive 

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Each Owner shall keep his lot, and all improvements thereon. In good order and repair and free of debris including, but not limited to, seeding, watering, mowing of lawns, the pruning and cutting of all trees and shrubbery and painting (or other appropriate external care) of all buildings and other improvements, all in a manner and with such frequency as is consistent with good property management, and as required by other provisions of this Declaration. In the event that an Owner shall fail to maintain such lot and improvements situated thereon, as provided herein and elsewhere in this Declaration, the Association, upon approval by two thirds (2/3) vote of the full Board of Directors and after reasonable notice to the particular Owner, shall have the right (but not the obligation) to enter upon said lot to repair, maintain and restore the lot and the exterior of the buildings and any other improvements thereon. All costs related to such correction, repair or restoration shall become a special assessment upon said lot, and collectible as any other special assessment provided for in this Declaration and the By-Laws of the Association 

Our controlling documents in the order of hierarchy are currently: 

1. The current Declaration of Protective Covenants was recorded in 2005. Our Declaration of Protective Covenants was last amended in 2005. The Declaration of Protective Covenants may only be amended in the following manner and by a 66% vote by the membership. The rules and ACC guidelines are part of the Covenants as recorded and by reference. This is the controlling document. : 

PARAGRAPH XIII 

AMENDMENTS 

The terms and conditions of this Declaration may be amended, annulled, or waived by an instrument in writing recorded in the Public Records of Palm Beach County, Florida, in the following manner and subject to the following conditions

  1. A. Such amendment, annulment or waiver shall have been approved at a duly called and held meetings by not less than a majority of the Board of Directors and sixty-six percent (66%) of the votes entitled to be cast by those members of the Association present, in person or by proxy, at said meeting (with a quorum being present). 

PARAGRAPH XII 

SCOPE AND DURATION OF COVENANTS. 

CONDITIONS AND RESTRICTIONS Gail Marcarelli, 6127 Winding Lake Drive 

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All of the covenants, conditions and restrictions set forth in this Declaration are imposed upon the property for the direct benefit thereof and the owners thereof as part of the general plan of development, improvement, building and maintenance of said property. Each grantee or purchaser under a contract of sale or agreement of purchase, by accepting a deed or contract of sale or agreement of purchase, accepts the same subject to a provision of this Declaration and agrees to be bound by each such covenant, condition and restriction contained herein. Said covenants, conditions and restrictions shall run with the land and continue to be in full force and effect in perpetuity

2. The Articles of Incorporation currently in effect are the December 31, 2003 version which can only be altered by a 75% vote of the membership. This is the second highest ranking document. : 

ARTICLE III 

The general nature, objects and purposes of the Association shall be: 

(b) To provide for the improvement, maintenance and preservation of the aforesaid property. 

(c) To administer and enforce all of the terms and conditions of that certain Declaration of Protective Covenants, Restrictions, Reservations, Servitudes and Easements to be recorded in the Public Records of Palm Beach County, Florida, those matters as shown on the Plat to be recorded. 

ARTICLE XIV 

These Articles may be altered, amended or repealed in the following manner

(a) Notice of the proposed Amendment shall be included in the notice of any meeting in which a proposed Amendment is considered. 

(b) A resolution for the adoption of the proposed Amendment may be proposed either by the Board of Directors or by the Members of the Association. Approval of a proposed Amendment must be by a majority of the Board of Directors of the Association and not less than seventy-five percent (75%) of the votes entitled to be cast by Members or by the unanimous approval of the initial Board of Directors until the first annual election of Directors. 

3. By-Laws as amended August 8th, 2013 are the current version and may be amended in the following manner. Note the hierarchy of the governing documents is stated and specified in the By-Laws. The By-Laws are the least important of the 

Gail Marcarelli, 6127 Winding Lake Drive 

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three controlling documents and the only document that the Board of Directors has complete control over. : 

ARTICLE XII 

AMENDMENTS 

1. Amendment Procedure. These By-Laws may be amended at any meeting of the Board of Directors by a vote of a majority of the full Board of Directors. 

2. Resolution of Conflicts. ln the case of any conflict between the Articles of Incorporation and these By-Laws, the Articles shall control; and in the case of any conflict between the Protective Covenants and these By-Laws, the Protective Covenants shall control. 

Our Association ACC guidelines have become a moving target in recent years. Changes and alterations have repeatedly occurred and on a frequent basis without the input of the membership and owners. These “Rules of the Association”, known as the ACC Guidelines appear to be made by one person, or a hand selected committee, without any input from the membership whatsoever. How is our membership expected to abide by rules that seem to change frequently? These changes are not being recorded in any public record as is required, nor are the meetings by this committee being maintained pursuant to our Declaration of Protective Covenants, (in violation of our governing document). The ACC Guidelines are part of the Declaration of Protective Covenants and therefore fall under the rules of the Declaration of Protective Covenants. Items have been added to the ACC guidelines that were not contained in the original ACC guidelines. Items have been deleted from our original ACC guidelines Our Declaration of Protective Covenants do not provide for meetings concurrent with Board Meetings. Our Declaration of Protective Covenants specifically “REQUIRE” that the Architectural Control Committee keep minutes of their meetings. We found no such minutes at our recent inspection of the Association Documents. These minutes would be in addition to the Board of Directors meetings and separate from Board of Directors meetings. With regard to the “Willy Nellie” random changing of the ACC Guidelines by a hand selected committee on a whim without the consent or vote by the general membership please find the following. : Gail Marcarelli, 6127 Winding Lake Drive 

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According to the Florida Supreme Court, only Florida-licensed attorneys may prepare amendments to governing documents and the voting instruments that go to the owners. The ACC Guidelines ARE governing documents by definition.: 

720.306 Meetings of members; voting and election procedures; amendments.— 

(1) QUORUM; AMENDMENTS.— 

(b) Unless otherwise provided in the governing documents or required by law, and other than those matters set forth in paragraph (c), any governing document of an association may be amended by the affirmative vote of two-thirds of the voting interests of the association. Within 30 days after recording an amendment to the governing documents, the association shall provide copies of the amendment to the members. However, if a copy of the proposed amendment is provided to the members before they vote on the amendment and the proposed amendment is not changed before the vote, the association, in lieu of providing a copy of the amendment, may provide notice to the members that the amendment was adopted, identifying the official book and page number or instrument number of the recorded amendment and that a copy of the amendment is available at no charge to the member upon written request to the association. The copies and notice described in this paragraph may be provided electronically to those owners who previously consented to receive notice electronically. The failure to timely provide notice of the recording of the amendment does not affect the validity or enforceability of the amendment. 

(e) A proposal to amend the governing documents must contain the full text of the provision to be amended and may not be revised or amended by reference solely to the title or number. Proposed new language must be underlined, and proposed deleted language must be stricken. If the proposed change is so extensive that underlining and striking through language would hinder, rather than assist, the understanding of the proposed amendment, a notation must be inserted immediately preceding the proposed amendment in substantially the following form: “Substantial rewording. See governing documents for current text.” An Gail Marcarelli, 6127 Winding Lake Drive 

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amendment to a governing document is effective when recorded in the public records of the county in which the community is located. 

AMENDED AND RESTATED DECLARATION OF PROTECTIVE 

COVENATS, RESTRICTIONS, RESERVATIONS, 

SERVITUDES AIID EASEMENTS, AFFECTING THE PLAT OF THE SHORES 

PARAGRAPH X 

CONSTRUCTION. ALTERATIONS AND IMPROVEMENTS: 

ARCHITECTURAL CONTROL COMMITTEE 

C. Function of the Architectural Control Committee. The Architectural Control Committee shall be a Permanent Committee of the Association and shall administer and perform the architectural review and control functions of the Association. The Architectural Control Committee shall exercise its best judgment to see that all improvements, constructions, landscaping and alterations conform to and harmonize with existing surroundings and structures. The Architectural Control Committee may also assist and advise the Board of Directors, of the Association in enforcing the Declaration and in adopting rules, regulations and guidelines, and may from time to time perform such other duties or functions as may be assigned to it by the Board of Directors. 

E. Powers of the Architectural Control Committee. The Architectural Control 

Committee shall have the following powers 

3. To promulgate rules and regulations of general application, governing the procedures to be followed by the Architectural Control Committee, including the form and content of applications, plans and specifications to be submitted for approval. The Architectural Control Committee may from time to time adopt architectural guidelines imposing restrictions in furtherance of the general plan of development of THE SHORES, that are not inconsistent with this Declaration. 

H Records of Meetings. The Architectural Control Committee shall keep minutes and maintain records of all votes taken at Architectural Control Committee meetings. 

PARAGRAPH XII 

SCOPE AND DURATION OF COVENANTS. 

CONDITIONS AND RESTRICTIONS 

All of the covenants, conditions and restrictions set forth in this Declaration are imposed upon the property for the direct benefit thereof and the owners thereof as part of the general plan of development, improvement, building and maintenance of said property. Each grantee or purchaser under a contract of Gail Marcarelli, 6127 Winding Lake Drive 

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sale or agreement of purchase, by accepting a deed or contract of sale or agreement of purchase, accepts the same subject to a provision of this Declaration and agrees to be bound by each such covenant, condition and restriction contained herein. Said covenants, conditions and restrictions shall run with the land and continue to be in full force and effect in perpetuity. 

PARAGRAPH XIII 

AMENDMENTS 

The terms and conditions of this Declaration may be amended, annulled, or waived by an instrument in writing recorded in the Public Records of Palm Beach County, Florida, in the following manner and subject to the following conditions: 

A. Such amendment, annulment or waiver shall have been approved at a duly called and held meetings by not less than a majority of the Board of Directors and sixty-six percent (66%) of the votes entitled to be cast by those members of the Association present, in person or by proxy, at said meeting (with a quorum being present). 

B. DELETED 

C. The Articles of Incorporation and By Laws of the Association may be amended in the manner so provided in such documents

D. Notwithstanding the foregoing, no amendment shall be made to the parts of Paragraph IX relating to lending institutions, without the written consent of all such parties holding mortgages on such lots. 

PARAGRAPH XIV 

ENFORCEMENT OF DECLARATION 

The provisions contained in this Declaration shall bind and inure to the benefit of and be enforceable by the Architectural Committee, the Association, or by the owner or owners of any portion of said property, their and each of their legal representatives, heirs, successors and assigns; failure by the Architectural Committee, the Association, or by the owner or owners of any portion of said property or their legal representatives, heirs, successors or assigns, to enforce any of such covenants, restrictions, reservations, servitudes and easements herein contained shall, in no event, be deemed a waiver of the right to do so thereafter, unless otherwise provided herein. 

PARAGRAPH XIX 

OWNERS SPECIAL RIGHTS OF THE ASSOCIATION – MAINTENANCE Gail Marcarelli, 6127 Winding Lake Drive 

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Each Owner shall keep his lot, and all improvements thereon. In good order and repair and free of debris including, but not limited to, seeding, watering, mowing of lawns, the pruning and cutting of all trees and shrubbery and painting (or other appropriate external care) of all buildings and other improvements, all in a manner and with such frequency as is consistent with good property management, and as required by other provisions of this Declaration. In the event that an Owner shall fail to maintain such lot and improvements situated thereon, as provided herein and elsewhere in this Declaration, the Association, upon approval by two thirds (2/3) vote of the full Board of Directors and after reasonable notice to the particular Owner, shall have the right (but not the obligation) to enter upon said lot to repair, maintain and restore the lot and the exterior of the buildings and any other improvements thereon. All costs related to such correction, repair or restoration shall become a special assessment upon said lot, and collectible as any other special assessment provided for in this Declaration and the By-Laws of the Association. 

The ACC Guidelines are not allowed to be more restrictive than the Declaration of Protective Covenants per law. You cannot change the terms of a contract, (which we have already established the governing documents are), without the consent of the parties. The Rules and regulations cannot contradict the Declaration of Protective Covenants, which take precedence. The rules, guidelines, and regulations should merely serve to clarify, interpret, and help implement the Declaration of Protective Covenants. In a California case, Ticor Title Insurance Co. v. Rancho Santa Fe Assn, (1986) 177 Cal.App.3d 726, the court found that the association’s interpretation power does not allow its board to enact stricter regulations than the regulations expressly provided in the Covenant. Existing homes and properties in our Association are not required to abide by, (changed ACC rules), as the rules that were in place at the time the contract was made, (home was purchased), are the controlling rules per contract law. Some of the changes that have been made to our ACC Guidelines would in our opinion be considered major changes. Major changes require a vote of the membership. These changes were required by law, as noted above, to be underlined and stricken through. This did not occur. Nor has a Recording occurred at Palm Beach County of the changes. 

Examples would include: Gail Marcarelli, 6127 Winding Lake Drive 

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1. The ACC removed, (deleted), the exemption of having a light under our mailbox for homes built pre 1993. Many, if not all, of the homes built between 1986 and 1993 are not wired for such lights and to install one would require a permit, work performed by a licensed electrician, notice of commencement and other Building Code Requirements. Such a change flies in the face of the Building Code which states: 

General terminology. 

Comply with. Meet one or more specifications of the code. 

If, if…then. Denotes a specification that applies only when the conditions described are present. 

May. Denotes an option or alternative. 

Shall. Denotes a mandatory specification or requirement. 

Should. Denotes an advisory specification or recommendation. 

Source Florida Building Code 

2020 Florida Building Code Existing 

[A]101.4.2Buildings previously occupied. 

The legal occupancy of any building existing on the date of adoption of this code shall be permitted to continue without change, except as is specifically covered in this code, the Florida Fire Prevention Code, or as is deemed necessary by the code official for the general safety and welfare of the occupants and the public. 

The 2004 and 2008 ACC Guidelines read: 

II Mailboxes 

c. Mailbox shall include concealed light fixture above address sign with electrical power connection and Photocell. New houses are required to have photocell. Houses build prior to 1993 were not required to have this device. 

Has been changed in 2020 to and the above text was omitted: 

Appendix A 

Standard Mailbox Design 

3) Sign numbers must be lighted from above as noted. Light fixture must be recessed and should not be visible. Gail Marcarelli, 6127 Winding Lake Drive 

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The fining provision was added to the ACC Guidelines and was not present in any previous versions of the ACC Guidelines. The fining provision is contradicted and not in accordance with the Declaration of Protective Covenants which is the controlling document and spells out a completely different remedy. The Remedy in the Declaration of Protective Covenants will and does prevail. 

The 2004 ACC reads: 

Is silent on fines, and spells out a remedy as we noted above. 

Has been changed in 2020 to: 

ACC REQUEST: 

e. Fines may be assessed for non-compliance issues per Florida Statute 720 at one hundred dollars ($100) per day up to one thousand dollars ($1000) 

Metal roofs were changed to add, without the memberships consent, metal roofs. According to our review of the documents and their application, metal roofs would still be prohibited as the Declaration of Protective Covenants has not been changed and the ACC Guidelines are NOT the controlling document. 

The 2004 and 2008 ACC Guidelines read: 

XIV New Home Construction and Refurbishment/Renovation of Existing homes: 

c. Roofs shall have a minimum pitch of 5/12 and shall be cedar shake, cement tile or clay tile. On a case-by case basis (following application to the ACC) Board approved colored metal roofing with no exposed fasteners, the prescribed minimum pitch, a minimum rib depth of 1″ and a rib spacing not to exceed 12″ may be approved. Flat roofs over rear-yard porches may be approved if not visible from the street, or seen from neighboring parcels and are discouraged. Gail Marcarelli, 6127 Winding Lake Drive 

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In the 2020 amendment, not voted on, a major change occurred. 

MODIFICATIONS 

The following sections all require full approval of the ACC prior to initiating the project. If there are any questions, contact the Management Company. 

2. New Roofing Type, Finish & Color: 

The Shores supports roof colors that are in neutral and earth tones which is in keeping with the overall character of the community. Roofs shall have a minimum pitch of 5”/12” and shall be cedar shake, cement tile, clay tile, or approved metal roofing systems. Due to the variety of metal roofing systems that are available and to help facilitate the approval process, the following 

samples and information shall be provided with metal roofing requests: 

These are just some of the changes to the ACC. There are numerous other changes including a complete reorganization of the controlling document. In fact, the entire document was modified without any vote by the homeowners of membership. This is rich since this document is one of our controlling documents and becomes part of the contract we members have with the Association when we purchase a property. You are not allowed to change contracts without the consent of all parties to the contract. 

Another point of interest includes the following: Architecture Committees and Boards do not have power or discretion to impose only one style over another, based purely on aesthetic concepts. Our ACC Guidelines openly state that their goal is for “aesthetic context” in direct violation of the courts ruling

See 

YOUNG v. TORTOISE ISLAND HOMEOWNERS ASSOCIATION, INC., 511 So. 2d 381 (Fla 5th DCA 1987) 

The Shores of Jupiter Architectural Guidelines and Summary 

Architectural Guidelines 

Compilation Summary 

Board Approved Copy: June 18, 2020 

Page 6 Gail Marcarelli, 6127 Winding Lake Drive 

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It is the goal of the Architectural Control Committee to consider new or alternate building materials whenever possible. However, these materials must be balanced within the existing aesthetic context of the Shores. Consideration of any such new material will be given, if application is made to the Committee, and appropriate and extensive technical and illustrative materials are provided. Be advised, however that installation of alternate materials may require Board action and take time to implement. 

This is the Florida Statute 720 from 2005 which in our opinion, absent Kaufman Language, pertains to our documents: 

720.3035 Architectural control covenants; parcel owner improvements; rights and privileges.— 

(1) The authority of an association or any architectural, construction improvement, or other such similar committee of an association to review and approve plans and specifications for the location, size, type, or appearance of any structure or other improvement on a parcel, or to enforce standards for the external appearance of any structure or improvement located on a parcel, shall be permitted only to the extent that the authority is specifically stated or reasonably inferred as to such location, size, type, or appearance in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants. 

(2) If the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants provides options for the use of material, the size of the structure or improvement, the design of the structure or improvement, or the location of the structure or improvement on the parcel, neither the association nor any architectural, construction improvement, or other such similar committee of the association shall restrict the right of a parcel owner to select from the options provided in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants. Gail Marcarelli, 6127 Winding Lake Drive 

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(4) Each parcel owner shall be entitled to the rights and privileges set forth in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants concerning the architectural use of the parcel, and the construction of permitted structures and improvements on the parcel and such rights and privileges shall not be unreasonably infringed upon or impaired by the association or any architectural, construction improvement, or other such similar committee of the association. If the association or any architectural, construction improvement, or other such similar committee of the association should unreasonably, knowingly, and willfully infringe upon or impair the rights and privileges set forth in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants, the adversely affected parcel owner shall be entitled to recover damages caused by such infringement or impairment, including any costs and reasonable attorney’s fees incurred in preserving or restoring the rights and privileges of the parcel owner set forth in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants. 

(5) Neither the association nor any architectural, construction improvement, or other such similar committee of the association shall enforce any policy or restriction that is inconsistent with the rights and privileges of a parcel owner set forth in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants, whether uniformly applied or not. Neither the association nor any architectural, construction improvement, or other such similar committee of the association may rely upon a policy or restriction that is inconsistent with the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants, whether uniformly applied or not, in defense of any action taken in the name of or on behalf of the association against a parcel owner. Gail Marcarelli, 6127 Winding Lake Drive 

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This is the current Florida Statute 720: 

720.3035 Architectural control covenants; parcel owner improvements; rights and privileges.— 

(5) Neither the association nor any architectural, construction improvement, or other such similar committee of the association shall enforce any policy or restriction that is inconsistent with the rights and privileges of a parcel owner set forth in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants, whether uniformly applied or not. Neither the association nor any architectural, construction improvement, or other such similar committee of the association may rely upon a policy or restriction that is inconsistent with the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants, whether uniformly applied or not, in defense of any action taken in the name of or on behalf of the association against a parcel owner. 

An HOA board or architectural committee is not able to enforce regulations relating to issues not addressed in the declaration or that are inconsistent with the declaration’s covenants and restrictions or state law. Fla. Stat. §720.3035(4) and (5); Ekstrom v. Marquesa at Monarch Beach Homeowners Association, 168 Cal.App.4th 1111 (Cal. Ct. App. 2008). 

720.3035 Architectural control covenants; parcel owner improvements; rights and privileges.— 

(4) Each parcel owner shall be entitled to the rights and privileges set forth in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants concerning the architectural use of the parcel, and the construction of permitted structures and improvements on the parcel and such rights and privileges shall not be unreasonably infringed upon or impaired by the association or any architectural, construction improvement, or Gail Marcarelli, 6127 Winding Lake Drive 

23 

other such similar committee of the association. If the association or any architectural, construction improvement, or other such similar committee of the association should unreasonably, knowingly, and willfully infringe upon or impair the rights and privileges set forth in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants, the adversely affected parcel owner shall be entitled to recover damages caused by such infringement or impairment, including any costs and reasonable attorney’s fees incurred in preserving or restoring the rights and privileges of the parcel owner set forth in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants. 

(5) Neither the association nor any architectural, construction improvement, or other such similar committee of the association shall enforce any policy or restriction that is inconsistent with the rights and privileges of a parcel owner set forth in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants, whether uniformly applied or not. Neither the association nor any architectural, construction improvement, or other such similar committee of the association may rely upon a policy or restriction that is inconsistent with the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants, whether uniformly applied or not, in defense of any action taken in the name of or on behalf of the association against a parcel owner. 

Because the Association is a corporation, it may not act in any way not authorized in its articles of incorporation or bylaws. Randall v. Mickle, 

103 Fla. 1229, 138 So. 14 (1931); Sudduth v. St. Andrews Bay Community Hotel Corp., 99 Fla. 151, 126 So. 302 (1930). 

The articles and bylaws must be consistent with the provisions of the superior document, the Declaration. See Roth v. Springlake II Homeowners Ass’n, 533 So. 2d 819 (Fla. 4th DCA 1988) Gail Marcarelli, 6127 Winding Lake Drive 

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Where the terms of the instrument are ambiguous, casting doubt upon the intent of the parties, this intent must be determined by the trier of fact, and is not to be determined upon a motion for summary judgment.” Westchester Fire Ins. Co. v. In-Sink-Erator, 252 So. 2d 856, 858 (Fla. 4th DCA 1971); Commercial Trading Co., Inc. v. Zero Food Storage, Inc., 199 So. 2d 109, 112 (Fla. 3d DCA), cert. denied 204 So. 2d 332 (Fla. 1967); Universal Underwriters Ins. Co. v. Steve Hull Chevrolet, Inc., 513 So. 2d 218, 219 (Fla. 1st DCA 1987); Griffin Builders Supply, Inc. v. Jones, 384 So. 2d 265, 266 (Fla. 2d DCA 1980). 

“The HOA fines were penalties against Plaintiff for violations of HOA rules and were not the result of a business dealing or an obligation to pay for goods or services. The unpaid fines are more akin to the tort award described by the Eleventh Circuit in Hawthorne, 140 F.3d at 1371-72, than the association fees and dues described by the Tenth Circuit in Ladick, 146 F.3d at 1206. Thus, the fines assessed against Plaintiff by the HOA do not create a “debt” under the FDCPA. Defendants therefore cannot be debt collectors within the meaning of the statute, and Count I of the Complaint must be dismissed.” 

Durso v. Summer Brook Preserve Homeowners Ass’n, 641 F. Supp. 2d 1256 – Dist. Court, MD Florida 2008 

SUMMARY: 

1. Per our extensive review of the Statutes, documents of the Association, and aforementioned referenced documents, we do not believe the Association has the Authority, Statute or otherwise, to fine our membership as a specific remedy is specified in the Declaration of Protective Covenants that is not consistent with the currant ACC Guidelines. 

2. Per our extensive review of the Statutes, documents of the Association, and aforementioned referenced documents, we do not believe the Association has 

Gail Marcarelli, 6127 Winding Lake Drive 

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the Authority, Statute or otherwise, to fine our membership based on the absence of “Kaufman Language” in ANY of our documents. 

3. Per our extensive review of the Statutes, documents of the Association, and aforementioned referenced documents, we do not believe the current Statute applies to our contracts with the Association. We believe the correct Statute is the 2005 version, or earlier. To be determined by the trier of fact. 

4. Per our extensive review of the Statutes, documents of the Association, and aforementioned referenced documents, we do not believe the Association has the Authority to change our ACC Guidelines in a substantial manner or in a manner NOT consistent with the Declaration of Protective Covenants without the vote of the membership. 

5. Per our extensive review of the Statutes, documents of the Association, and aforementioned referenced documents, we do believe the Association is not following our Declaration of Protective Covenants with regard to changes to the authoritative documents. 

6. Per our extensive review of the Statutes, documents of the Association, and aforementioned referenced documents, we do believe the Association is not following our Declaration of Protective Covenants or By-Laws with regard to procedural requirements specified and laid out in said documents. 

7. The Association needs to cease and desist with issuing threatening letters with regard to fines, liens, and foreclosures for non-compliance to our members and stating the Association has a right to fine based on our Declaration of Protective Covenants and Rules. As it does not. 

Gail Marcarelli, 6127 Winding Lake Drive 

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8. The Association needs to cease and desist with changing ANY of our governing documents without the memberships vote and consent when the changes are NOT consistent with our Declaration of Protective Covenants. 

9. Board members need to refrain from further condescending speak and posts toward our members and the threat that “the Association has plenty of money to sue the members” as such speak is not appropriate or professional in nature, (copy on file). Nor is it consistent with the requirement that the board members have a fiduciary responsibility to safeguard the Associations assets. 

10. We are prepared to defend, or file complaint, in this matter and are further confident, that we will prevail with a trier of fact. 

11. We have not yet consulted, or retained, our Attorney in this matter; however, we are poised to do so. 

12. The Board of Directors and Architectural Control Committee have created a complete mess out of our controlling documents over the years with the amateur way they have treated the documents. Words that have been inserted into the ACC Guidelines have no meaning, or the wrong meaning, when it pertains to property, buildings, and structures. Localisms were used to define Architectural elements rather than the CSI, (Construction Standards Institute definitions which are the International Standard for definitions), or Building Code Definitions. This is what happens when people without professional licenses, knowledge, or experience try to amend something far beyond their abilities. This mess will undoubtedly require the work of an Attorney with an expert Architect, (not Landscape as defined in 481), specializing in HOA documents and Architectural Review, (Control), Committee experience and writing to correct and sort out. 

Gail Marcarelli and Jeff G. Hooper 

6127 Winding Lake Drive 

Jupiter, Florida 33458 Gail Marcarelli, 6127 Winding Lake Drive 

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Cc via US mail: 

David Lindley Andrea Peralta Bill Thompson 

6551 Winding Lake Dr. 18841 Still Lake Dr. 18583 Lake Bend Dr. 

Jupiter, FL. 33458 Jupiter, FL 33458 Jupiter, FL 33458 

Art Cummings Cindy Deem 

6229 Winding Lake Dr. 6115 Winding Lake Dr. 

Jupiter, FL. 33458 Jupiter, FL 33458 

Emily O’Mahoney Barry Parker 

18834 Sweet Gum Ct. 18755 Big Cypress Dr. 

Jupiter, FL 33458 Jupiter, FL 33458 

Cc via Email 

THE INCLUSION OF ANY COPYRIGHTED MATERIAL IS USED UNDER THE GUIDELINES OF “FAIR USE” IN TITLE 17 & 107 OF THE UNITED STATES CODE. SUCH MATERIAL REMAINS THE COPYRIGHT OF THE ORIGINAL HOLDER AND IS USED HERE FOR THE PURPOSES OF EDUCATION, COMPARISON, OR CRITICISM ONLY. NO INFRINGEMENT OF COPYRIGHT IS INTENDED. 

Pdf available for download:

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The Shores of Jupiter has been my home since 2004. I have recently been accused of making trouble for the board. I don't deny that. It's good trouble. I have also been accused to doing nothing but creating chaos. If chaos means not going along to get along then I am guilty. Good Queen of Chaos.

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