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Unconstitutional delegation of “judicial power” to a private entity - The fining portion of Florida’s Section 720.305 constitutes an impermissible delegation by the Legislature to a private entity of the Courts’ Article V, Section 1 (“Courts”) “judicial power.”[1] In pertinent part, Article V, Section 1 of Florida’s Constitution states: “SECTION 1. Courts.—The judicial power shall be vested in a supreme court, district courts of appeal, circuit courts and county courts. No other courts may be established by the state, any political subdivision or any municipality…” (Emphasis supplied).
Section 720.305 – In pertinent part, Section 720.305(2), Fla.Stat., states as follows: “(2) An 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.” Sub-section 720.305(2)(b) creates an internal appeals system by a group (appointed by the board) to determine “whether to confirm or reject the fine or suspension levied by the board.” There is no provision to appeal the fine to the court system, nor is there an automatic stay of enforcement of the fine should an appeal to the courts be taken.
Sub-section 720.305(3) authorizes the association to unilaterally suspend an owner’s right “to use common areas and facilities until the fee, fine, or other monetary obligation is paid in full, …” without court involvement. Sub-section 720.305(4) authorizes the association to unilaterally “suspend the voting rights of a parcel or member for the nonpayment of any fee, fine, or other monetary obligation due to the association that is more than 90 days delinquent…” without court involvement. Per Section 720.305, the association may also lien the owner’s property for an unpaid fine (provided it is in excess of $1,000), without court involvement. Per Section 720.3085(1) (“Payment for assessments; lien claims”), the priority of that lien relates back to the date the original declaration was recorded and, thereby, takes priority over homestead claims and encumbrances other than first mortgages (possibly triggering a mortgage default). Section 720.3085(8) also empowers the association to garnish tenants for unpaid fines, without court involvement. In short, once a fine is levied, the association has several remedies created by the Legislature to collect that fine, all of which are without court involvement. The only time for court involvement in collecting a fine is if the association wishes to obtain a money judgment.
Foley v. Osborne Court Condominium – In Foley v. Osborne Court Condominium, 724 A.2d 436 (R.I. 1999), an owner sued his condominium association, seeking to enjoin it from levying fines, recording liens against his property based on unpaid fines and foreclosing those liens. The homeowner asserted that the law enabling the association to do those things (1982 Condominium Act, G.I., chapter 36.1 of title 34 – “Rhode Island Condominium Act”) constituted an unconstitutional delegation of judicial power by the legislature to a private entity.
Section 1 of Article 10 (“Judicial Power”) of Rhode Island’s Constitution stated: “Section 1. Power vested in court.- The judicial power of this state shall be vested in one supreme court, and in such inferior courts as the general assembly may, from time to time, ordain and establish.”
In a section of its opinion entitled “2. Improper Delegation Claim,” the Rhode Island Supreme Court considered the constitutionality of the legislature’s delegation of fining power to a private entity under the Rhode Island Condominium Act. Foley, supra, 724 A.2d at 442. Because the trial court had failed to specifically rule on the constitutional issue, the Supreme Court remanded the case back to the trial court “with our instruction that the trial justice consider and rule on whether in this case the 1982 act represents an unconstitutional delegation of judicial or police power to the condominium association, a private entity.”
On remand, Foley v. Osborne Court Condominium, Superior Ct. of Rhode Island, Newport, 1999 R.I. Super. Lexis 50 (July 26, 1999), the trial court stated, “The pertinent provisions of the 1982 Act that allegedly violate Article 10 are those which empower condominium associations with the right to assess fines and use foreclosure proceedings to collect those fines,” citing Sections 34-36.1-3.02, 3.1.16, 1-3.20, 1-3.21, Rhode Island Statutes. The trial court concluded the statutes in question constituted an unconstitutional delegation of judicial power to a private entity, as follows: “The association is authorized to hear disputes concerning allegations that unit owners have violated the declaration, bylaws, or rules and regulations of the condominium. The 1982 Act permits the association to determine those controversies and to issue orders directing violators to pay fines. Finally, the act empowers the association with the ability to enforce its orders by depriving a violator of his property by foreclosure. In this capacity, the association acts as a tribunal exercising judicial power. … For the foregoing reasons, the Court finds that the 1982 Act represents an unconstitutional delegation of judicial or police power to the condominium association, a private entity.” (Id., at 14).
Like the above statutes in Rhode Island, Florida’s Sections 720.305 and 720.3085, discussed above, empower a private entity “to impose and enforce fines” through several remedies without court involvement. Like the statutes in Rhode Island, Florida’s Section 720.305 authorizes an association “to hear disputes that unit owners have violated the declaration …, to determine those controversies and to issue orders directing violators to pay fines.” In other words, Section 720.305 authorizes associations to exercise what are traditional “judicial powers” only courts have. Like the statutes in Rhode Island, Florida’s Sections 720.305 and 720.3085 empower “the association with the ability to enforce its orders by depriving a violator of his property by foreclosure.”
Just as the statutes in Rhode Island constitute an unconstitutional delegation of judicial power to a private entity, so also Florida’s Section 720.305 constitutes an unconstitutional delegation of traditional judicial power to a private entity. Put another way, the Florida Legislature’s creation of a process by which a private homeowners’ association is empowered to adjudicate, levy, then enforce fines WITHOUT COURT INVOLVEMENT constitutes an unconstitutional delegation of the courts’ traditional “judicial power” to a private entity.
Unlike traditional courts, Florida’s Section 720.305(2) creates a very, very false façade of pseudo-due process. The statute grants the board of directors of the homeowners’ association, for example, the unilateral power to appoint and/or remove the members of the committee responsible for reviewing its actions. It gives the association (the very party who pockets fines it levies) the power to adjudicate the fines and, then, to appoint the persons who will review its actions – violating a basic tenet of due process that the adjudicator be disinterested in the outcome of the dispute before it.
Additionally, a declaration of covenants and restrictions is considered a contract. See, Joy v. Oaks Club Corporation, 343 So.3d 632, 636 (Fla. 2d DCA 2022). Consider any other type of contract relationship (e.g. credit card agreement, rental car agreement, internet provider contract, note and mortgage, marital settlement agreement). Hypothetically, if the Legislature were to grant one party to ANY other type of a contract the power to adjudicate, levy, then enforce fines against the other party WITHOUT COURT INVOLVEMENT, there would be no question the Legislature went too far. The same logic applies here to homeowners associations. Hence, Florida’s Section 720.305(2) is clearly an improper delegation by the Legislature of the courts’ judicial power to a private entity.
Footnote 1
Judicial Power - As for what constitutes an exercise of “judicial power,” in Ortiz v. U.S., 138 S.Ct. 2165, 2185-86 (2018) (Thomas, concurring), the U.S. Supreme Court stated it was “the power to act conclusively against private rights,” accompanied by some basic procedural requirements, such as the presence of adverse parties and an opportunity to be heard. More recently, the First District Court of Appeal discussed “judicial power” in Shands Jacksonville Medical Center, Inc. v. Chavez, 416 So.3d 1226, 1228 (Fla. 1st DCA 2024) (Tannenbaum, concurring), as follows:
“The judicial power lies on the other side of the divide. This is the only sovereign power that can conclusively decide disputes over personal rights between private parties. That power extends to adjudicating facts the law specifies as necessary to decide such disputes, and then applying the law to those facts in order to render a judgment that permanently alters the parties’ legal relationship or that defines the rights and obligations between them. The judgment (subject to review by a superior court) is final and has the force of law as to those parties, making it subject to execution without further adjudication—its effects felt beyond the branch; indeed, throughout the State. The judicial branch’s nature as non-political allows it to serve a function vital to the preservation of liberty: the neutral, dispassionate interpretation and application of law in the conclusive determination of both private disputes between parties … This is the essence of judicial power, which may be exercised only by the judicial branch and cannot be delegated.” (Emphasis supplied).
This definition of “judicial power” is exactly what the Legislature unconstitutionally delegated to private entities when they empowered homeowners association to impose “fines” on homeowners pursuant to Section 720.305(2).
