Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. SB 1312
Barcode 430952
CHAMBER ACTION
Senate House
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11 The Committee on Commerce and Consumer Services (Saunders)
12 recommended the following amendment:
13
14 Senate Amendment (with title amendment)
15 Delete everything after the enacting clause
16
17 and insert:
18 Section 1. Subsection (1) of section 479.261, Florida
19 Statutes, is amended to read:
20 479.261 Logo sign program.--
21 (1) The department shall establish a logo sign program
22 for the rights-of-way of the interstate highway system to
23 provide information to motorists about available gas, food,
24 lodging, and camping services at interchanges, through the use
25 of business logos, and may include additional interchanges
26 under the program. A logo sign for nearby attractions may be
27 added to this program if allowed by federal rules.
28 (a) An attraction as used in this chapter is defined
29 as an establishment, site, facility, or landmark which is open
30 a minimum of 5 days a week for 52 weeks a year; which charges
31 an admission for entry; which has as its principal focus
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1 family-oriented entertainment, cultural, educational,
2 recreational, scientific, or historical activities; and which
3 is publicly recognized as a bona fide tourist attraction.
4 However, the permits for businesses seeking to participate in
5 the attractions logo sign program shall be awarded by the
6 department annually to the highest bidders, notwithstanding
7 the limitation on fees in subsection (5), which are qualified
8 for available space at each qualified location, but the fees
9 therefor may not be less than the fees established for logo
10 participants in other logo categories.
11 (b) The department shall incorporate the use of RV
12 friendly markers on specific information logo signs for
13 establishments that cater to the needs of persons driving
14 recreational vehicles. Establishments that qualify for
15 participation in the specific information logo program and
16 that also qualify as "RV friendly" may request the RV friendly
17 marker on their specific information logo sign. An RV friendly
18 marker is a bright yellow circle with a crescent smile under
19 the letters "RV." The department shall adopt rules in
20 accordance with chapter 120 to administer this paragraph,
21 including rules setting forth the minimum requirements that
22 establishments must meet in order to qualify as RV friendly.
23 These requirements shall include large parking spaces,
24 entrances, and exits that can easily accommodate recreational
25 vehicles and facilities having appropriate overhand
26 clearances, if applicable.
27 Section 2. Section 681.1096, Florida Statutes, is
28 amended to read:
29 681.1096 Pilot RV Mediation and Arbitration Program;
30 creation and qualifications.--
31 (1) This section and s. 681.1097 shall apply to
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1 disputes determined eligible under this chapter involving
2 recreational vehicles acquired on or after October 1, 1997,
3 and shall remain in effect until September 30, 2006, at which
4 time recreational vehicle disputes shall be subject to the
5 provisions of ss. 681.109 and 681.1095. The Attorney General
6 shall report to the President of the Senate, the Speaker of
7 the House of Representatives, the Minority Leader of each
8 house of the Legislature, and appropriate legislative
9 committees regarding the effectiveness of the pilot program.
10 (2) Each manufacturer of a recreational vehicle
11 involved in a dispute that is determined eligible under this
12 chapter, including chassis and component manufacturers which
13 separately warrant the chassis and components and which
14 otherwise meet the definition of manufacturer set forth in s.
15 681.102(14), shall participate in a mediation and arbitration
16 program that is deemed qualified by the department.
17 (3) In order to be deemed qualified by the department,
18 the mediation and arbitration program must, at a minimum, meet
19 the following requirements:
20 (a) The program must be administered by an
21 administrator and staff that are is sufficiently insulated
22 from the manufacturer to ensure impartial mediation and
23 arbitration services and to ensure that a manufacturer does
24 not make decisions as to whether a consumer's dispute proceeds
25 to mediation or arbitration.
26 (b) Program administration fees must be timely paid by
27 the manufacturer, and no such fees shall be charged to a
28 consumer.
29 (c) The program must be competently and adequately
30 funded and staffed at a level sufficient to ensure the
31 provision of fair and expeditious dispute resolution services.
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1 (d) Program mediators and arbitrators must be
2 sufficiently insulated from a manufacturer to ensure the
3 provision of impartial mediation and arbitration of disputes.
4 (e) Program mediators and arbitrators shall not be
5 employed by a manufacturer or a motor vehicle dealer.
6 (f) Program mediators must complete a Florida Supreme
7 Court certified circuit or county mediation training program,
8 or other mediation training program approved by the
9 department, in addition to a minimum of one-half day of
10 training on this chapter conducted by the department.
11 (g) Program mediators must comply with the Model
12 Standards of Conduct for Mediators issued by the American
13 Arbitration Association, the Dispute Resolution Section of the
14 American Bar Association, and the Society of Professionals in
15 Dispute Resolution.
16 (h) Program arbitrators must complete a Florida
17 Supreme Court certified circuit or county arbitration program,
18 or other arbitration training program approved by the
19 department, in addition to a minimum of 1 day of training in
20 the application of this chapter and any rules adopted
21 thereunder conducted by the department.
22 (i) Program arbitrators must comply with the Code of
23 Ethics for Arbitrators in Commercial Disputes published by the
24 American Arbitration Association and the American Bar
25 Association in 1977 and as amended.
26 (j) The program must ensure that the mediators and
27 arbitrators are sufficiently trained in the program rules and
28 procedures and in the provisions of this chapter at least
29 every other year and as a precondition to serving in the
30 program. The program shall monitor the performance of the
31 mediators and arbitrators to ensure that they are performing
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1 competently and impartially and are complying with all program
2 rules and procedures and the provisions of this chapter.
3 Program arbitrators must construe and apply the provisions of
4 this chapter and rules adopted thereunder in making decisions.
5 (k) The program must complete all mediation and
6 arbitration of an eligible consumer claim within 70 days of
7 the program administrator's receipt of the claim from a
8 consumer the department. Failure of the program to complete
9 all proceedings within the prescribed period will not
10 invalidate any settlement agreement or arbitration decision.
11 The program shall gather all documents from the parties to a
12 dispute that are necessary to a full consideration of the
13 dispute, including, but not limited to, a statement of the
14 respective complaints, positions, and desired resolution by
15 the consumer and each manufacturer. Copies of documents
16 submitted to the program shall be provided to all parties
17 involved in the dispute, the assigned mediator, and the
18 assigned arbitrator.
19 (l) Mediation conferences and arbitration proceedings
20 must be held at reasonably convenient locations within the
21 state so as to enable a consumer to attend and present a
22 dispute orally.
23 (4) The department shall monitor the program for
24 compliance with this chapter. If the program is determined not
25 qualified or if qualification is revoked, then disputes shall
26 be subject to the provisions of ss. 681.109 and 681.1095. If
27 the program is determined not qualified or if qualification is
28 revoked as to a manufacturer, all those manufacturers
29 potentially involved in the eligible consumer dispute the
30 involved manufacturer shall be required to submit to
31 arbitration conducted by the board if such arbitration is
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1 requested by a consumer and the dispute is deemed eligible for
2 arbitration by the division pursuant to s. 681.109. A consumer
3 having a dispute involving one or more manufacturers for which
4 the program has been determined not qualified, or for which
5 qualification has been revoked, is not required to submit the
6 dispute to the program irrespective of whether the program may
7 be qualified as to some of the manufacturers potentially
8 involved in the dispute.
9 (5) A program failing to meet the requirements of this
10 section, s. 681.1097, and the rules adopted thereunder by the
11 department may not be qualified by the department. The
12 department may revoke the qualification of a program for
13 failure to maintain compliance with the requirements of this
14 section, s. 681.1097, and the rules adopted thereunder by the
15 department. The department may revoke the qualification of a
16 program as to one or more participating manufacturers for
17 conduct to be specified by the department by rule pursuant to
18 ss. 120.536(1) and 120.54.
19 (6)(5) If a program is determined not qualified or if
20 qualification is revoked, or if program qualification is
21 revoked as to a particular manufacturer, the program
22 administrator and the involved manufacturer, if any, shall be
23 notified by the department of any deficiencies in the program
24 or, in the case of a manufacturer, notified of the
25 manufacturer's conduct in violation of this chapter or the
26 rules adopted thereunder by the department, shall be given an
27 opportunity to correct such deficiencies, except as set forth
28 by the department by rule, and shall be informed that it is
29 entitled to a hearing pursuant to chapter 120.
30 (7)(6) The program administrator, mediators, and
31 arbitrators are exempt from civil liability arising from any
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1 act or omission in connection with any mediation or
2 arbitration conducted under this chapter.
3 (8)(7) The program administrator shall maintain
4 records of each dispute submitted to the program, including
5 the recordings of arbitration hearings. Such records shall be
6 maintained in a manner separate from other unrelated records
7 of the program. All records maintained by the program under
8 this chapter shall be public records and shall be available
9 for inspection by the department upon reasonable notice. The
10 program shall retain all records for each dispute for at least
11 5 years after the final disposition of the dispute. The
12 program shall furnish the department with copies of all
13 settlement agreements and decisions within 30 days after the
14 date of such settlements and decisions. The records for
15 disputes closed as of September 30 of each year shall be
16 turned over to the department by the program administrator by
17 no later than October 30 of the same year, unless a later date
18 is specified by the department.
19 (9) The program shall provide the department with
20 quarterly and annual reports containing such information as
21 the department shall by rule prescribe.
22 (10)(8) The department shall have the authority to
23 adopt reasonable rules pursuant to ss. 120.536(1) and 120.54
24 to implement carry out the provisions of this section.
25 Section 3. Section 681.1097, Florida Statutes, is
26 amended to read:
27 681.1097 Pilot RV Mediation and Arbitration Program;
28 dispute eligibility and program function.--
29 (1) Before filing a civil action on a matter subject
30 to s. 681.104, a consumer who acquires a recreational vehicle
31 must first submit the dispute to the department, and to the
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1 program if the dispute is deemed eligible. Such consumer is
2 not required to resort to a procedure certified pursuant to s.
3 681.108, notwithstanding that one of the manufacturers of the
4 recreational vehicle has such a procedure. Such consumer is
5 not required to resort to arbitration conducted by the board,
6 except as provided in s. 681.1096(4) and in this section.
7 (2) A consumer acquiring a recreational vehicle must
8 apply to participate in this program with respect to a claim
9 arising during the Lemon Law rights period by filing the
10 application in subsection (3) with the program department no
11 later than 60 days after the expiration of the Lemon Law
12 rights period. The claim is considered filed when the
13 application is date-stamped as received by the program.
14 (3) The consumer's application for participation in
15 the program must be on a form prescribed or approved by the
16 program department. The program administrator department shall
17 screen all applications to participate in the program to
18 determine eligibility. The department shall forward to the
19 program administrator all applications the department
20 determines are potentially entitled to relief under this
21 chapter.
22 (a) If the department determines the application lacks
23 sufficient information from which a determination of
24 eligibility can be made, the department shall request
25 additional information from the consumer and, upon review of
26 such additional information, shall determine whether the
27 application is eligible or reject the application as
28 incomplete.
29 (b) The department shall reject any application it
30 determines to be fraudulent or outside the scope of this
31 chapter.
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1 (a)(c) The consumer and the manufacturer shall be
2 notified in writing by the program administrator department if
3 an application is rejected. Such notification of rejection
4 shall include a brief explanation as to the reason for the
5 rejection.
6 (b)(d) If the program administrator department rejects
7 a dispute, the consumer may file a lawsuit to enforce the
8 remedies provided under this chapter. In any civil action
9 arising under this chapter and relating to the matter
10 considered by the program department, any determination made
11 to reject a dispute is admissible in evidence.
12 (e) The department may delegate responsibility for the
13 screening of claims to the program, in which event claims
14 filed with the department shall be forwarded to the program
15 administrator and the provisions of this section shall apply
16 to claims screened by the program.
17 (4) Mediation shall be mandatory for both the consumer
18 and manufacturer, unless the dispute is settled prior to the
19 scheduled mediation conference. The mediation conference shall
20 be confidential and inadmissible in any subsequent adversarial
21 proceedings. Participation shall be limited to the parties
22 directly involved in the dispute and their attorneys, if any.
23 All manufacturers shall be represented by persons with
24 settlement authority. The parties may, by agreement, consent
25 to expand the scope of a mediation conference to attempt to
26 resolve warranty claims by the consumer which may not be
27 covered under this chapter, if such claims were reported by
28 the consumer to the manufacturer or its authorized service
29 agent during the term of the manufacturer's express warranty.
30 (a) Upon determination that an application is eligible
31 receipt of an eligible application, the program administrator
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1 shall notify the consumer and all involved manufacturers in
2 writing that an eligible application has been received. Such
3 notification shall include a statement that a mediation
4 conference will be scheduled, shall identify the assigned
5 mediator, and provide information regarding the program's
6 procedures. The program administrator shall provide all
7 involved manufacturers with a copy of the completed
8 application and obtain from each manufacturer a written
9 response to the allegations contained in the application along
10 with copies of any documents in support of such response. The
11 written response shall be on a form and submitted in the
12 manner prescribed by the program.
13 (b) The mediator shall be selected and assigned by the
14 program administrator. The parties may factually object to a
15 mediator based upon the mediator's past or present
16 relationship with a party or a party's attorney, direct or
17 indirect, whether financial, professional, social, or of any
18 other kind. The program administrator shall consider any such
19 objection, determine its validity, and notify the parties of
20 any determination. If the objection is determined valid, the
21 program administrator shall assign another mediator to the
22 case.
23 (c) At the mediation conference, the mediator shall
24 assist the parties' efforts to reach a mutually acceptable
25 settlement of their dispute; however, the mediator shall not
26 impose any settlement upon the parties.
27 (d) Upon conclusion of the mediation conference, the
28 mediator shall notify the program administrator that the case
29 has settled or remains at an impasse. The program
30 administrator shall notify the department in writing of the
31 outcome of the mediation.
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1 (e) If the mediation conference ends in an impasse, it
2 shall proceed to arbitration pursuant to subsection (5). The
3 program administrator shall immediately notify the parties in
4 writing that the dispute will proceed to arbitration and shall
5 identify the assigned arbitrator.
6 (f) If the parties enter into a settlement at any time
7 after the dispute has been submitted to the program, such
8 settlement must be reduced to legible writing, signed by the
9 consumer and all involved manufacturers, and filed with the
10 program administrator. The program administrator shall send a
11 copy to the department. All settlements must contain, at a
12 minimum, the following information:
13 1. Name and address of the consumer.
14 2. Name and address of each involved manufacturer.
15 3. Year, make, model, and vehicle identification
16 number of the subject recreational vehicle.
17 4. Name and address of the dealership from which the
18 recreational vehicle was acquired.
19 5. Date the claim was received by the program
20 administrator.
21 6. Name of the mediator or and/or arbitrator, if any.
22 7. A complete statement of the terms of the agreement,
23 including, but not limited to: whether the vehicle is to be
24 reacquired by a manufacturer and the identity of the
25 manufacturer that will reacquire the vehicle; the amount of
26 any moneys to be paid by the consumer or and/or a
27 manufacturer; the year, make, and model of any replacement
28 motor vehicle or motor vehicle accepted by the consumer as a
29 trade-assist; the date, time, location, and nature of any
30 agreed upon repair or replacement of a component part or
31 accessory and an estimate as to the anticipated length of time
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1 for such repair or replacement; and a time certain for
2 performance not to exceed 40 days from the date the settlement
3 agreement is signed by the parties.
4 (g) If a manufacturer fails to perform within the time
5 required in any settlement agreement, the consumer must notify
6 the program administrator of such failure in writing within 30
7 10 days of the required performance date. Within 10 days of
8 receipt of such notice, the program administrator shall
9 determine whether the dispute is eligible to proceed to
10 arbitration notify the department of the manufacturer's
11 failure in compliance and shall schedule the matter for an
12 arbitration hearing pursuant to subsection (5). If the program
13 administrator determines the dispute is not eligible for
14 arbitration, the dispute shall be rejected pursuant to
15 subsection (3).
16 (5) If the mediation ends in an impasse, or if a
17 manufacturer fails to comply with the settlement entered into
18 between the parties, the program administrator shall schedule
19 the dispute for an arbitration hearing. Arbitration
20 proceedings shall be open to the public on reasonable and
21 nondiscriminatory terms.
22 (a) The arbitration hearing shall be conducted by a
23 single arbitrator assigned by the program administrator. The
24 arbitrator shall not be the same person as the mediator who
25 conducted the prior mediation conference in the dispute. The
26 parties may factually object to an arbitrator based on the
27 arbitrator's past or present relationship with a party or a
28 party's attorney, direct or indirect, whether financial,
29 professional, social, or of any other kind. The program
30 administrator shall consider any such objection, determine its
31 validity, and notify the parties of any determination. If the
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1 objection is determined valid, the program administrator shall
2 assign another arbitrator to the case.
3 (b) The arbitrator may issue subpoenas for the
4 attendance of witnesses and for the production of records,
5 documents, and other evidence. Subpoenas so issued shall be
6 served and, upon application to the court by a party to the
7 arbitration, enforced in the manner provided by law for the
8 service and enforcement of subpoenas in civil actions. Fees
9 for attendance as a witness shall be the same as for a witness
10 in the circuit court.
11 (c) At all program arbitration proceedings, the
12 parties may present oral and written testimony, present
13 witnesses and evidence relevant to the dispute, cross-examine
14 witnesses, and be represented by counsel. The technical rules
15 of evidence as are applicable to civil court proceedings do
16 not apply to arbitrations conducted by the program. The
17 arbitrator shall record the arbitration hearing and shall have
18 the power to administer oaths. The arbitrator may inspect the
19 vehicle if requested by a party or if the arbitrator considers
20 such inspection appropriate. The parties may, by mutual
21 written agreement, consent to expand the scope of the
22 arbitration hearing to permit consideration by the arbitrator
23 of warranty claims by the consumer that may not be covered
24 under this chapter, provided such claims were first reported
25 by the consumer to the manufacturer or its authorized service
26 agent during the term of the manufacturer's express warranty.
27 (d) The program arbitrator may continue a hearing on
28 his or her own motion or upon the request of a party for good
29 cause shown. A request for continuance by the consumer
30 constitutes a waiver of the time period set forth in s.
31 681.1096(3)(k) for completion of all proceedings under the
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1 program.
2 (e) Where the arbitration is the result of a
3 manufacturer's failure to perform in accordance with a
4 settlement agreement, any relief to the consumer granted by
5 the arbitration will be no less than the relief agreed to by
6 the manufacturer in the settlement agreement.
7 (e)(f) The arbitrator shall, in rendering decisions,
8 take into account all legal and equitable factors germane to a
9 fair and just decision, including, but not limited to, the
10 warranty and the provisions of this chapter grant relief if a
11 reasonable number of attempts have been undertaken to correct
12 a nonconformity or nonconformities.
13 (f)(g) The program arbitrator shall render a decision
14 within 10 days of the closing of the hearing. The decision
15 shall be in legible writing on a form prescribed or approved
16 by the program department. The program administrator shall
17 send a copy of the decision to the consumer and each involved
18 manufacturer by registered mail. The program administrator
19 shall also send a copy of the decision to the department
20 within 5 days of mailing to the parties.
21 (g)(h) A manufacturer shall comply with an arbitration
22 decision within 40 days of the date the manufacturer receives
23 the written decision. Compliance occurs on the date the
24 consumer receives delivery of an acceptable replacement motor
25 vehicle or the relief refund specified in the arbitration
26 award.
27 (h) If a manufacturer fails to comply within the time
28 required, and no appeal has been filed, the consumer shall
29 must notify the program administrator of such failure in
30 writing within 30 10 days. The program administrator shall
31 notify the department of a manufacturer's failure to comply. A
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1 consumer may apply to a court of competent jurisdiction in
2 this state for entry of an order confirming the award. Such
3 application shall be by motion filed within 40 days after the
4 manufacturer's failure to comply and shall be heard in the
5 manner and upon notice provided by law or rule of court for
6 the making and hearing of motions. Such application shall be
7 served in the manner provided by law for the service of a
8 civil summons. The consumer shall send a copy of the
9 application for confirmation of the award and any order
10 entered by the court confirming the award to the program
11 administrator. The department shall have the authority to
12 enforce compliance with arbitration decisions under this
13 section in the same manner as is provided for enforcement of
14 compliance with board decisions under s. 681.1095(10). In any
15 civil action arising under this chapter and relating to a
16 dispute arbitrated pursuant to this section, the decision of
17 the arbitrator is admissible in evidence.
18 (i) Either party may request that the program
19 arbitrator make a technical correction to the decision by
20 filing a written request with the program administrator within
21 10 days after receipt of the written decision. Technical
22 corrections shall be limited to computational errors,
23 correction of a party's name or information regarding the
24 recreational vehicle, and typographical or spelling errors.
25 Technical correction of a decision shall not toll the time for
26 filing an appeal or for manufacturer compliance.
27 (6) Except as otherwise provided, all provisions in
28 this section pertaining to mandatory mediation and
29 arbitration, eligibility screening, mediation proceedings,
30 arbitration hearings and decisions, and any appeals thereof
31 are exempt from the provisions of chapter 120.
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1 (7) A decision of the arbitrator is binding unless
2 appealed by either party by filing a petition with the circuit
3 court within the time and in the manner prescribed by s.
4 681.1095(10) and (12). Section 681.1095(13) and (14) apply to
5 appeals filed under this section. If a decision of a program
6 arbitrator in favor of a consumer is confirmed by the court,
7 recovery by the consumer shall include the pecuniary value of
8 the award, attorney's fees incurred in obtaining confirmation
9 of the award, and all costs and continuing damages in the
10 amount of $25 per day for each day beyond the 40-day period
11 following a manufacturer's receipt of the arbitrator's
12 decision. If a court determines the manufacturer acted in bad
13 faith in bringing the appeal or brought the appeal solely for
14 the purpose of harassment, or in complete absence of a
15 justiciable issue of law or fact, the court shall double, and
16 may triple, the amount of the total award.
17 (8) In any civil action arising under this chapter
18 relating to a dispute arbitrated pursuant to this section, the
19 decision of the arbitrator is admissible in evidence.
20 (9)(8) The department shall have the authority to
21 adopt reasonable rules pursuant to ss. 120.536(1) and 120.54
22 to implement carry out the provisions of this section.
23 Section 4. This act shall take effect upon becoming a
24 law.
25
26
27 ================ T I T L E A M E N D M E N T ===============
28 And the title is amended as follows:
29 Delete everything before the enacting clause
30
31 and insert:
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1 A bill to be entitled
2 An act relating to the recreational vehicles;
3 amending s. 479.261, F.S.; requiring the
4 Department of Transportation to incorporate
5 certain markers on logo signs for certain
6 establishments; requiring the department to
7 adopt rules regarding the incorporation of
8 those markers; amending s. 681.1096, F.S.;
9 eliminating future termination of the program;
10 revising requirements for program certification
11 to ensure neutrality of dispute resolution;
12 providing guidelines for the training of
13 arbitrators and mediators; providing that the
14 program must complete all mediation and
15 arbitration within 70 days after receipt of the
16 consumer's claim; requiring the program to
17 gather and make available all documents
18 relevant to a dispute; providing consumer
19 exemption from mediation when at least one
20 manufacturer does not qualify for the program;
21 authorizing the Department of Legal Affairs to
22 revoke the qualification of a noncompliant
23 program; providing for notice to programs and
24 manufacturers not in compliance, for
25 opportunity to correct deficiencies, and for
26 administrative hearings; requiring the program
27 to maintain dispute records; creating an annual
28 reporting requirement; providing the program
29 with rulemaking authority to implement
30 provisions of this section; amending s.
31 681.1097, F.S.; providing and revising dispute
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1 resolution guidelines for consumers of
2 recreational vehicles; requiring consumers to
3 submit their dispute to the program; providing
4 that the claim is considered filed when it is
5 date-stamped as received by the program;
6 requiring the consumer's application form to be
7 prescribed by the program; requiring the
8 program administrator to screen all
9 applications to determine eligibility;
10 requiring the program administrator to provide
11 notice of rejected applications; providing for
12 mandatory mediation and the expansion of the
13 scope of mediation at the consent of the
14 parties; providing guidelines for mediation
15 proceedings; requiring written response of
16 manufacturers to consumer allegations; removing
17 requirement that the program administrator
18 notify the department of the mediation outcome;
19 extending the deadline for consumer
20 notification to the program administrator of a
21 manufacturer's failure in comply with a
22 mediation decision; revising guidelines for
23 arbitration proceedings; providing that
24 technical rules of evidence do not apply to
25 arbitration proceedings; providing for the
26 expansion of the scope of arbitration at the
27 consent of the parties; requiring the
28 arbitrator's decision to consider all legal and
29 equitable factors; providing consumers with
30 means for civil enforcement of an award;
31 extending the deadline for consumer
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1 notification to the program administrator of a
2 manufacturer's failure in comply with an
3 arbitration decision; providing that the
4 arbitrator's decision is admissible as evidence
5 in certain civil actions; providing an
6 effective date.
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