Bill Description: Senate Bill 1263 would, under certain circumstances, allow homeowners associations to impose fines on homeowners without first having to give them notice.
Amendment Analysis: The Amendment to Senate Bill 1263 does not change the rating. The language added by the amendment does make the bill somewhat less objectionable, but it still falls short of due process.
The new language added by the amendment is as follows:
"Consistent with the governing documents, written notice of the fine must be sent to the member within three (3) days of the board's vote. Notwithstanding this exception, the board or the board's agent shall make a reasonable effort to contact the member prior to imposition of the fine. Any member who is assessed a fine under this paragraph may petition the board for a hearing to dispute or appeal the fine within thirty (30) days after the day on which the member receives notice that the fine has been assessed.".
Due process requires more than a "reasonable effort" and it does not include a hearing only after judgment has been rendered.
Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?
Idaho law requires certain things before the board of a homeowners association may vote to impose fines on a homeowner "for a violation of any covenants and restrictions pursuant to the rules and regulations of the homeowner's association. Specifically, it must provide a notice to the member at least 30 days before the vote. It may deliver the notice by personal service or certified mail.
The law further requires that "in the event the member begins resolving the violation prior to the meeting, no fine shall be imposed as long as the member continues to address the violation in good faith until fully resolved."
Senate Bill 1263 would amend Section 55-115, Idaho Code, which contains this law. It would suspend both of these requirements when there is a "violation involving endangerment to the safety of others, destruction of common property, a disturbing of the peace, or the destruction of another member's property."
This change violates the principle of due process: It denies an accused homeowner notice of the board's intention or an opportunity to offer a defense against claims of wrongdoing.
It should also be noted that, while destruction of property is a crime with a clear victim, "disturbing the peace" often serves as a catch-all term. Breathing within five feet of another person has recently been regarded by some people as "endangering the safety of others."
Judicious decisions are seldom made in haste, and penalties should not be levied without due process, even by a homeowners association.
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