HOUSE AMENDMENT
                                                  Bill No. HB 1923
    Amendment No. ___ (for drafter's use only)
                            CHAMBER ACTION
              Senate                               House
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11  The Council for Smarter Government offered the following:
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13         Amendment (with title amendment) 
14         On page 66, line 10, through page 72, line 7,
15  remove from the bill:  all of said lines
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17  and insert in lieu thereof:  
18         Section 68.  Section 718.1255, Florida Statutes, is
19  amended to read:
20         718.1255  Alternative dispute resolution; voluntary
21  mediation; mandatory nonbinding arbitration and mediation;
22  local resolution; exemptions; legislative findings.--
23         (1)  APPLICABILITY DEFINITIONS.--
24         (a)  The provisions of subsection (3) apply to As used
25  in this section, the term "dispute" means any disagreement
26  between two or more parties that involves:
27         (a)  The authority of the board of directors, under
28  this chapter or association document to:
29         1.  Require any owner to take any action, or not to
30  take any action, involving that owner's unit or the
31  appurtenances thereto.
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    File original & 9 copies    04/24/01                          
    hjc0003                     07:58 pm         01923-sgc -981001

HOUSE AMENDMENT Bill No. HB 1923 Amendment No. ___ (for drafter's use only) 1 2. Alter or add to a common area or element. 2 (b) the failure of a governing body, when required by 3 this chapter or an association document, to: 4 1. properly conduct elections or to recall a board 5 member. 6 (b) The provisions of subsection (4) apply to any 7 disagreement between two or more parties that involves: 8 1. The authority of the board of directors, under this 9 chapter or an association document, to: 10 a. Require any owner to take any action, or not to 11 take any action, involving that owner's unit or the 12 appurtenances thereto; or 13 b. Alter or add to a common area or element. 14 2. The failure of a governing body, when required by 15 this chapter or an association document, to: 16 a.2. Give adequate notice of meetings or other 17 actions;. 18 b.3. Properly conduct meetings; or. 19 c.4. Allow inspection of books and records. 20 21 "Dispute" does not include any disagreement that primarily 22 involves: title to any unit or common element; the 23 interpretation or enforcement of any warranty; the levy of a 24 fee or assessment, or the collection of an assessment levied 25 against a party; the eviction or other removal of a tenant 26 from a unit; alleged breaches of fiduciary duty by one or more 27 directors; or claims for damages to a unit based upon the 28 alleged failure of the association to maintain the common 29 elements or condominium property. 30 (2) VOLUNTARY MEDIATION.--Voluntary mediation through 31 Citizen Dispute Settlement Centers as provided for in s. 2 File original & 9 copies 04/24/01 hjc0003 07:58 pm 01923-sgc -981001
HOUSE AMENDMENT Bill No. HB 1923 Amendment No. ___ (for drafter's use only) 1 44.201 is encouraged. 2 (2)(3) LEGISLATIVE FINDINGS.-- 3 (a) The Legislature finds that unit owners are 4 frequently at a disadvantage when litigating against an 5 association. Specifically, a condominium association, with its 6 statutory assessment authority, is often more able to bear the 7 costs and expenses of litigation than the unit owner who must 8 rely on his or her own financial resources to satisfy the 9 costs of litigation against the association. 10 (b) The Legislature finds that the courts are becoming 11 overcrowded with condominium and other disputes, and further 12 finds that alternative dispute resolution has been making 13 progress in reducing court dockets and trials and in offering 14 a more efficient, cost-effective option to court litigation. 15 However, the Legislature also finds that alternative dispute 16 resolution should not be used as a mechanism to encourage the 17 filing of frivolous or nuisance suits. 18 (c) There exists a need to develop a flexible means of 19 alternative dispute resolution that directs disputes to the 20 most efficient means of resolution. 21 (d) The high cost and significant delay of circuit 22 court litigation faced by unit owners in the state can be 23 alleviated by requiring nonbinding arbitration and mediation 24 in appropriate cases, thereby reducing delay and attorney's 25 fees while preserving the right of either party to have its 26 case heard by a jury, if applicable, in a court of law. 27 (3)(4) MANDATORY NONBINDING ARBITRATION AND MEDIATION 28 OF DISPUTES.--The division of Florida Land Sales, 29 Condominiums, and Mobile Homes of the Department of Business 30 and Professional Regulation shall provide employ full-time 31 attorneys to act as arbitrators to conduct the arbitration 3 File original & 9 copies 04/24/01 hjc0003 07:58 pm 01923-sgc -981001
HOUSE AMENDMENT Bill No. HB 1923 Amendment No. ___ (for drafter's use only) 1 hearings as required provided by this chapter. The department 2 may employ attorneys to act as arbitrators, and the division 3 may also certify attorneys who are not employed by the 4 division to act as arbitrators to conduct the arbitration 5 hearings provided by this chapter section. No person may be 6 employed by the department as an a full-time arbitrator unless 7 he or she is a member in good standing of The Florida Bar. The 8 department shall promulgate rules of procedure to govern such 9 arbitration hearings including mediation incident thereto. 10 The decision of an arbitrator shall be final; however, such a 11 decision shall not be deemed final agency action. Nothing in 12 this provision shall be construed to foreclose parties from 13 proceeding in a trial de novo unless the parties have agreed 14 that the arbitration is binding. If such judicial proceedings 15 are initiated, the final decision of the arbitrator shall be 16 admissible in evidence in the trial de novo. 17 (a) Prior to the institution of court litigation, a 18 party to a dispute shall petition the division for nonbinding 19 arbitration. The petition must be accompanied by a filing fee 20 in the amount of $50. Filing fees collected under this 21 section must be used to defray the expenses of the alternative 22 dispute resolution program. 23 (b) The petition must recite, and have attached 24 thereto, supporting proof that the petitioner gave the 25 respondents: 26 1. Advance written notice of the specific nature of 27 the dispute; 28 2. A demand for relief, and a reasonable opportunity 29 to comply or to provide the relief; and 30 3. Notice of the intention to file an arbitration 31 petition or other legal action in the absence of a resolution 4 File original & 9 copies 04/24/01 hjc0003 07:58 pm 01923-sgc -981001
HOUSE AMENDMENT Bill No. HB 1923 Amendment No. ___ (for drafter's use only) 1 of the dispute. 2 3 Failure to include the allegations or proof of compliance with 4 these prerequisites requires dismissal of the petition without 5 prejudice. 6 (c) Upon receipt, the petition shall be promptly 7 reviewed by the division to determine the existence of a 8 dispute and compliance with the requirements of paragraphs (a) 9 and (b). If emergency relief is required and is not available 10 through arbitration, a motion to stay the arbitration may be 11 filed. The motion must be accompanied by a verified petition 12 alleging facts that, if proven, would support entry of a 13 temporary injunction, and if an appropriate motion and 14 supporting papers are filed, the division may abate the 15 arbitration pending a court hearing and disposition of a 16 motion for temporary injunction. 17 (d) Upon determination by the division that a dispute 18 exists and that the petition substantially meets the 19 requirements of paragraphs (a) and (b) and any other 20 applicable rules, a copy of the petition shall forthwith be 21 served by the division upon all respondents. 22 (e) Either before or after the filing of the 23 respondents' answer to the petition, any party may request 24 that the arbitrator refer the case to mediation under this 25 section and any rules adopted by the division. Upon receipt 26 of a request for mediation, the division shall promptly 27 contact the parties to determine if there is agreement that 28 mediation would be appropriate. If all parties agree, the 29 dispute must be referred to mediation. Notwithstanding a lack 30 of an agreement by all parties, the arbitrator may refer a 31 dispute to mediation at any time. 5 File original & 9 copies 04/24/01 hjc0003 07:58 pm 01923-sgc -981001
HOUSE AMENDMENT Bill No. HB 1923 Amendment No. ___ (for drafter's use only) 1 (f) Upon referral of a case to mediation, the parties 2 must select a mutually acceptable mediator. To assist in the 3 selection, the arbitrator shall provide the parties with a 4 list of both volunteer and paid mediators that have been 5 certified by the division under s. 718.501. If the parties 6 are unable to agree on a mediator within the time allowed by 7 the arbitrator, the arbitrator shall appoint a mediator from 8 the list of certified mediators. If a case is referred to 9 mediation, the parties shall attend a mediation conference, as 10 scheduled by the parties and the mediator. If any party fails 11 to attend a duly noticed mediation conference, without the 12 permission or approval of the arbitrator or mediator, the 13 arbitrator must impose sanctions against the party, including 14 the striking of any pleadings filed, the entry of an order of 15 dismissal or default if appropriate, and the award of costs 16 and attorneys' fees incurred by the other parties. Unless 17 otherwise agreed to by the parties or as provided by order of 18 the arbitrator, a party is deemed to have appeared at a 19 mediation conference by the physical presence of the party or 20 its representative having full authority to settle without 21 further consultation, provided that an association may comply 22 by having one or more representatives present with full 23 authority to negotiate a settlement and recommend that the 24 board of administration ratify and approve such a settlement 25 within 5 days from the date of the mediation conference. The 26 parties shall share equally the expense of mediation, unless 27 they agree otherwise. 28 (g) The purpose of mediation as provided for by this 29 section is to present the parties with an opportunity to 30 resolve the underlying dispute in good faith, and with a 31 minimum expenditure of time and resources. 6 File original & 9 copies 04/24/01 hjc0003 07:58 pm 01923-sgc -981001
HOUSE AMENDMENT Bill No. HB 1923 Amendment No. ___ (for drafter's use only) 1 (h) Mediation proceedings must generally be conducted 2 in accordance with the Florida Rules of Civil Procedure, and 3 these proceedings are privileged and confidential to the same 4 extent as court-ordered mediation. Persons who are not parties 5 to the dispute are not allowed to attend the mediation 6 conference without the consent of all parties, with the 7 exception of counsel for the parties and corporate 8 representatives designated to appear for a party. If the 9 mediator declares an impasse after a mediation conference has 10 been held, the arbitration proceeding terminates, unless all 11 parties agree in writing to continue the arbitration 12 proceeding, in which case the arbitrator's decision shall be 13 either binding or nonbinding, as agreed upon by the parties; 14 in the arbitration proceeding, the arbitrator shall not 15 consider any evidence relating to the unsuccessful mediation 16 except in a proceeding to impose sanctions for failure to 17 appear at the mediation conference. If the parties do not 18 agree to continue arbitration, the arbitrator shall enter an 19 order of dismissal, and either party may institute a suit in a 20 court of competent jurisdiction. The parties may seek to 21 recover any costs and attorneys' fees incurred in connection 22 with arbitration and mediation proceedings under this section 23 as part of the costs and fees that may be recovered by the 24 prevailing party in any subsequent litigation. 25 (i) Arbitration shall be conducted according to rules 26 promulgated by the division. The filing of a petition for 27 arbitration shall toll the applicable statute of limitations. 28 (j) At the request of any party to the arbitration, 29 such arbitrator shall issue subpoenas for the attendance of 30 witnesses and the production of books, records, documents, and 31 other evidence and any party on whose behalf a subpoena is 7 File original & 9 copies 04/24/01 hjc0003 07:58 pm 01923-sgc -981001
HOUSE AMENDMENT Bill No. HB 1923 Amendment No. ___ (for drafter's use only) 1 issued may apply to the court for orders compelling such 2 attendance and production. Subpoenas shall be served and shall 3 be enforceable in the manner provided by the Florida Rules of 4 Civil Procedure. Discovery may, in the discretion of the 5 arbitrator, be permitted in the manner provided by the Florida 6 Rules of Civil Procedure. Rules adopted by the division may 7 authorize any reasonable sanctions except contempt for a 8 violation of the arbitration procedural rules of the division 9 or for the failure of a party to comply with a reasonable 10 nonfinal order issued by an arbitrator which is not under 11 judicial review. 12 (k) The arbitration decision shall be presented to the 13 parties in writing. An arbitration decision is final in those 14 disputes in which the parties have agreed to be bound. An 15 arbitration decision is also final if a complaint for a trial 16 de novo is not filed in a court of competent jurisdiction in 17 which the condominium is located within 30 days. The right to 18 file for a trial de novo entitles the parties to file a 19 complaint in the appropriate trial court for a judicial 20 resolution of the dispute. The prevailing party in an 21 arbitration proceeding shall be awarded the costs of the 22 arbitration and reasonable attorney's fees in an amount 23 determined by the arbitrator. Such an award shall include the 24 costs and reasonable attorney's fees incurred in the 25 arbitration proceeding as well as the costs and reasonable 26 attorney's fees incurred in preparing for and attending any 27 scheduled mediation. 28 (l) The party who files a complaint for a trial de 29 novo shall be assessed the other party's arbitration costs, 30 court costs, and other reasonable costs, including attorney's 31 fees, investigation expenses, and expenses for expert or other 8 File original & 9 copies 04/24/01 hjc0003 07:58 pm 01923-sgc -981001
HOUSE AMENDMENT Bill No. HB 1923 Amendment No. ___ (for drafter's use only) 1 testimony or evidence incurred after the arbitration hearing 2 if the judgment upon the trial de novo is not more favorable 3 than the arbitration decision. If the judgment is more 4 favorable, the party who filed a complaint for trial de novo 5 shall be awarded reasonable court costs and attorney's fees. 6 (m) Any party to an arbitration proceeding may enforce 7 an arbitration award by filing a petition in a court of 8 competent jurisdiction in which the condominium is located. A 9 petition may not be granted unless the time for appeal by the 10 filing of a complaint for trial de novo has expired. If a 11 complaint for a trial de novo has been filed, a petition may 12 not be granted with respect to an arbitration award that has 13 been stayed. If the petition for enforcement is granted, the 14 petitioner shall recover reasonable attorney's fees and costs 15 incurred in enforcing the arbitration award. A mediation 16 settlement may also be enforced through the county or circuit 17 court, as applicable, and any costs and fees incurred in the 18 enforcement of a settlement agreement reached at mediation 19 must be awarded to the prevailing party in any enforcement 20 action. 21 (4) DISPUTES SUBJECT TO LOCAL RESOLUTION.--Disputes 22 shall be resolved in the county in which the dispute has 23 occurred by a local government alternative dispute resolution, 24 mediation, or arbitration program. Such cases shall be handled 25 by these programs without the necessity of the case being 26 filed in the court system. In the resolution of these cases on 27 the local level, past precedent of prior division arbitration 28 decisions shall be considered and followed where appropriate. 29 Local government alternative dispute resolution, mediation, or 30 arbitration programs may charge fees for handling these cases. 31 The division shall handle any of these cases arising in 9 File original & 9 copies 04/24/01 hjc0003 07:58 pm 01923-sgc -981001
HOUSE AMENDMENT Bill No. HB 1923 Amendment No. ___ (for drafter's use only) 1 counties which do not have local government alternative 2 dispute resolution, mediation, or arbitration programs. The 3 division shall provide a list of these programs to anyone 4 requesting this information and shall act as a clearinghouse 5 for disputes, directing affected parties to the appropriate 6 local alternative dispute resolution, mediation, or 7 arbitration program within the county in which the dispute has 8 occurred. 9 (5) EXEMPTIONS.--A dispute is not subject to 10 resolution under this section if it includes any disagreement 11 that primarily involves: 12 (a) Title to any unit or common element; 13 (b) The interpretation or enforcement of any warranty; 14 (c) The levy of a fee or assessment or the collection 15 of an assessment levied against a party; 16 (d) The eviction or other removal of a tenant from a 17 unit; 18 (e) Alleged breaches of fiduciary duty by one or more 19 directors; or 20 (f) Claims for damages to a unit based upon the 21 alleged failure of the association to maintain the common 22 elements or condominium property. 23 Section 69. The Division of Condominiums, Timeshare, 24 and Mobile Homes of the Department of Business and 25 Professional Regulation shall continue the arbitration of any 26 cases which qualified for arbitration on the date the case was 27 filed with the division and which were filed with the division 28 prior to the date on which this act becomes law. 29 Section 70. There is hereby appropriated 1 FTE and 30 $440,626 from the Division of Condominiums, Timeshare, and 31 Mobile Homes Trust Fund to the Department of Business and 10 File original & 9 copies 04/24/01 hjc0003 07:58 pm 01923-sgc -981001
HOUSE AMENDMENT Bill No. HB 1923 Amendment No. ___ (for drafter's use only) 1 Professional Regulation for the purpose of investigating and 2 resolving disputes and dealing with compliance issues relating 3 to condominiums and cooperatives. This appropriation shall not 4 take effect if a similar amount of funding is included in the 5 various appropriations for compliance and enforcement in the 6 Florida Condominiums, Timeshare, and Mobile Homes program in 7 the fiscal year 2001-2002 General Appropriations Act. 8 9 10 ================ T I T L E A M E N D M E N T =============== 11 And the title is amended as follows: 12 On page 5, line 18, 13 14 after the second semicolon insert: 15 providing and limiting arbitration of disputes 16 by the division to those regarding elections 17 and the recall of board members; deleting 18 reference to voluntary mediation; providing for 19 the resolution of certain other complaints at 20 the local level; providing exemptions; 21 requiring the continuation of arbitration of 22 cases filed by a certain date; providing a 23 contingent appropriation; 24 25 26 27 28 29 30 31 11 File original & 9 copies 04/24/01 hjc0003 07:58 pm 01923-sgc -981001