HB 0293CS

CHAMBER ACTION



1The Justice Council recommends the following:
2
3     Council/Committee Substitute
4     Remove the entire bill and insert:
5
A bill to be entitled
6An act relating to recreational vehicles; amending s.
7479.261, F.S.; requiring the Department of Transportation
8to incorporate the use of RV friendly markers on specific
9information logo signs; authorizing certain establishments
10to request designation of the marker; providing
11requirements; requiring the design of the marker to be
12approved by the Federal Highway Administration; requiring
13the department to adopt certain rules relating to the
14markers; amending s. 681.1096, F.S.; eliminating future
15termination of the RV Mediation and Arbitration Program;
16revising requirements for program certification to ensure
17neutrality of dispute resolution; providing guidelines for
18the training of arbitrators and mediators; providing that
19the program must complete all mediation and arbitration
20within 70 days of receipt of the consumer's claim;
21requiring the program to gather and make available all
22documents relevant to a dispute; providing consumer
23exemption from mediation when at least one manufacturer
24does not qualify for the program; authorizing the
25Department of Legal Affairs to revoke the qualification of
26a noncompliant program; providing for notice to programs
27and manufacturers not in compliance, for opportunity to
28correct deficiencies, and for administrative hearings;
29requiring the program to maintain dispute records;
30creating an annual reporting requirement; providing the
31program with rulemaking authority to implement provisions
32of this section; amending s. 681.1097, F.S.; providing and
33revising dispute resolution guidelines for consumers of
34recreational vehicles; requiring consumers to submit their
35dispute to the program; providing that the claim is
36considered filed when it is date-stamped as received by
37the program; requiring the consumer's application form to
38be prescribed by the program; requiring the program
39administrator to screen all applications to determine
40eligibility; requiring the program administrator to
41provide notice of rejected applications; providing for
42mandatory mediation and the expansion of the scope of
43mediation at the consent of the parties; providing
44guidelines for mediation proceedings; requiring written
45response of manufacturers to consumer allegations;
46removing requirement that the program administrator notify
47the department of the mediation outcome; extending the
48deadline for consumer notification to the program
49administrator of a manufacturer's failure to comply with a
50mediation decision; revising guidelines for arbitration
51proceedings; providing that technical rules of evidence
52shall not apply to arbitration proceedings; providing for
53the expansion of the scope of arbitration at the consent
54of the parties; requiring the arbitrator's decision to
55consider all legal and equitable factors; providing
56consumers with means for civil enforcement of an award;
57extending the deadline for consumer notification to the
58program administrator of a manufacturer's failure to
59comply with an arbitration decision; providing that the
60arbitrator's decision is admissible as evidence in certain
61civil actions; providing an effective date.
62
63Be It Enacted by the Legislature of the State of Florida:
64
65     Section 1.  Subsection (8) is added to section 479.261,
66Florida Statutes, to read:
67     479.261  Logo sign program.--
68     (8)  The department shall incorporate the use of RV
69friendly markers on specific information logo signs for
70establishments which cater to the needs of persons driving
71recreational vehicles. Establishments which qualify for
72participation in the specific information logo program and which
73also qualify as RV friendly may request the RV friendly marker
74on their specific information logo sign. An RV friendly marker
75shall consist of a design approved by the Federal Highway
76Administration. The department shall adopt rules pursuant to
77chapter 120 as necessary to implement the provisions of this
78subsection, including rules setting forth the minimum
79requirements that establishments must meet in order to qualify
80as RV friendly. These requirements shall include large parking
81spaces, entrances, and exits which can easily accommodate
82recreational vehicles and facilities with appropriate overhead
83clearances, if applicable.
84     Section 2.  Section 681.1096, Florida Statutes, is amended
85to read:
86     681.1096  Pilot RV Mediation and Arbitration Program;
87creation and qualifications.--
88     (1)  This section and s. 681.1097 shall apply to disputes
89determined eligible under this chapter involving recreational
90vehicles acquired on or after October 1, 1997, and shall remain
91in effect until September 30, 2006, at which time recreational
92vehicle disputes shall be subject to the provisions of ss.
93681.109 and 681.1095. The Attorney General shall report to the
94President of the Senate, the Speaker of the House of
95Representatives, the Minority Leader of each house of the
96Legislature, and appropriate legislative committees regarding
97the effectiveness of the pilot program.
98     (2)  Each manufacturer of a recreational vehicle involved
99in a dispute that is determined eligible under this chapter,
100including chassis and component manufacturers which separately
101warrant the chassis and components and which otherwise meet the
102definition of manufacturer set forth in s. 681.102(14), shall
103participate in a mediation and arbitration program that is
104deemed qualified by the department.
105     (3)  In order to be deemed qualified by the department, the
106mediation and arbitration program must, at a minimum, meet the
107following requirements:
108     (a)  The program must be administered by an administrator
109and staff that are is sufficiently insulated from the
110manufacturer to ensure impartial mediation and arbitration
111services and to ensure that a manufacturer does not make
112decisions as to whether a consumer's dispute proceeds to
113mediation or arbitration.
114     (b)  Program administration fees must be timely paid by the
115manufacturer, and no such fees shall be charged to a consumer.
116     (c)  The program must be competently and adequately funded
117and staffed at a level sufficient to ensure the provision of
118fair and expeditious dispute resolution services.
119     (d)  Program mediators and arbitrators must be sufficiently
120insulated from a manufacturer to ensure the provision of
121impartial mediation and arbitration of disputes.
122     (e)  Program mediators and arbitrators shall not be
123employed by a manufacturer or a motor vehicle dealer.
124     (f)  Program mediators must complete a Florida Supreme
125Court certified circuit or county mediation training program, or
126other mediation training program approved by the department, in
127addition to a minimum of one-half day of training on this
128chapter conducted by the department.
129     (g)  Program mediators must comply with the Model Standards
130of Conduct for Mediators issued by the American Arbitration
131Association, the Dispute Resolution Section of the American Bar
132Association, and the Society of Professionals in Dispute
133Resolution.
134     (h)  Program arbitrators must complete a Florida Supreme
135Court certified circuit or county arbitration program, or other
136arbitration training program approved by the department, in
137addition to a minimum of 1 day of training in the application of
138this chapter and any rules adopted thereunder conducted by the
139department.
140     (i)  Program arbitrators must comply with the Code of
141Ethics for Arbitrators in Commercial Disputes published by the
142American Arbitration Association and the American Bar
143Association in 1977 and as amended.
144     (j)  The program must ensure that the mediators and
145arbitrators are sufficiently trained in the program rules and
146procedures and in the provisions of this chapter at least every
147other year and as a precondition to serving in the program. The
148program shall monitor the performance of the mediators and
149arbitrators to ensure that they are performing competently and
150impartially and are complying with all program rules and
151procedures and the provisions of this chapter. Program
152arbitrators must construe and apply the provisions of this
153chapter and rules adopted thereunder in making decisions.
154     (k)  The program must complete all mediation and
155arbitration of an eligible consumer claim within 70 days of the
156program administrator's receipt of the claim from a consumer the
157department. Failure of the program to complete all proceedings
158within the prescribed period will not invalidate any settlement
159agreement or arbitration decision. The program shall gather all
160documents from the parties to a dispute that are necessary to a
161full consideration of the dispute, including, but not limited
162to, a statement of the respective complaints, positions, and
163desired resolution by the consumer and each manufacturer. Copies
164of documents submitted to the program shall be provided to all
165parties involved in the dispute, the assigned mediator, and the
166assigned arbitrator.
167     (l)  Mediation conferences and arbitration proceedings must
168be held at reasonably convenient locations within the state so
169as to enable a consumer to attend and present a dispute orally.
170     (4)  The department shall monitor the program for
171compliance with this chapter. If the program is determined not
172qualified or if qualification is revoked, then disputes shall be
173subject to the provisions of ss. 681.109 and 681.1095. If the
174program is determined not qualified or if qualification is
175revoked as to a manufacturer, all those manufacturers
176potentially involved in the eligible consumer dispute the
177involved manufacturer shall be required to submit to arbitration
178conducted by the board if such arbitration is requested by a
179consumer and the dispute is deemed eligible for arbitration by
180the division pursuant to s. 681.109. A consumer having a dispute
181involving one or more manufacturers for which the program has
182been determined not qualified, or for which qualification has
183been revoked, shall not be required to submit the dispute to the
184program irrespective of whether the program may be qualified as
185to some of the manufacturers potentially involved in the
186dispute.
187     (5)  A program failing to meet the requirements of this
188section, s. 681.1097, and the rules adopted thereunder by the
189department shall not be qualified by the department. The
190department may revoke the qualification of a program for failure
191to maintain compliance with the requirements of this section, s.
192681.1097, and the rules adopted thereunder by the department.
193The department may revoke the qualification of a program as to
194one or more participating manufacturers for conduct to be
195specified by the department by rule pursuant to ss. 120.536(1)
196and 120.54.
197     (6)(5)  If a program is determined not qualified or if
198qualification is revoked, or if program qualification is revoked
199as to a particular manufacturer, the program administrator and
200the involved manufacturer, if any, shall be notified by the
201department of any deficiencies in the program or, in the case of
202a manufacturer, notified of the manufacturer's conduct in
203violation of this chapter or the rules adopted thereunder by the
204department, shall be given an opportunity to correct such
205deficiencies, except as set forth by the department by rule, and
206shall be informed that it is entitled to a hearing pursuant to
207chapter 120.
208     (7)(6)  The program administrator, mediators, and
209arbitrators are exempt from civil liability arising from any act
210or omission in connection with any mediation or arbitration
211conducted under this chapter.
212     (8)(7)  The program administrator shall maintain records of
213each dispute submitted to the program, including the recordings
214of arbitration hearings. Such records shall be maintained in a
215manner separate from other unrelated records of the program. All
216records maintained by the program under this chapter shall be
217public records and shall be available for inspection by the
218department upon reasonable notice. The program shall retain all
219records for each dispute for at least 5 years after the final
220disposition of the dispute. The program shall furnish the
221department with copies of all settlement agreements and
222decisions within 30 days of the date of such settlements and
223decisions. The records for disputes closed as of September 30 of
224each year shall be turned over to the department by the program
225administrator by no later than October 30 of the same year,
226unless a later date is specified by the department.
227     (9)  The program shall provide the department with
228quarterly and annual reports containing such information as the
229department shall by rule prescribe.
230     (10)(8)  The department shall have the authority to adopt
231reasonable rules pursuant to ss. 120.536(1) and 120.54 to
232implement carry out the provisions of this section.
233     Section 3.  Section 681.1097, Florida Statutes, is amended
234to read:
235     681.1097  Pilot RV Mediation and Arbitration Program;
236dispute eligibility and program function.--
237     (1)  Before filing a civil action on a matter subject to s.
238681.104, a consumer who acquires a recreational vehicle must
239first submit the dispute to the department, and to the program
240if the dispute is deemed eligible. Such consumer is not required
241to resort to a procedure certified pursuant to s. 681.108,
242notwithstanding that one of the manufacturers of the
243recreational vehicle has such a procedure. Such consumer is not
244required to resort to arbitration conducted by the board, except
245as provided in s. 681.1096(4) and in this section.
246     (2)  A consumer acquiring a recreational vehicle must apply
247to participate in this program with respect to a claim arising
248during the Lemon Law rights period by filing the application in
249subsection (3) with the program department no later than 60 days
250after the expiration of the Lemon Law rights period. The claim
251is considered filed when the application is date-stamped as
252received by the program.
253     (3)  The consumer's application for participation in the
254program must be on a form prescribed or approved by the program
255department. The program administrator department shall screen
256all applications to participate in the program to determine
257eligibility. The department shall forward to the program
258administrator all applications the department determines are
259potentially entitled to relief under this chapter.
260     (a)  If the department determines the application lacks
261sufficient information from which a determination of eligibility
262can be made, the department shall request additional information
263from the consumer and, upon review of such additional
264information, shall determine whether the application is eligible
265or reject the application as incomplete.
266     (b)  The department shall reject any application it
267determines to be fraudulent or outside the scope of this
268chapter.
269     (a)(c)  The consumer and the manufacturer shall be notified
270in writing by the program administrator department if an
271application is rejected. Such notification of rejection shall
272include a brief explanation as to the reason for the rejection.
273     (b)(d)  If the program administrator department rejects a
274dispute, the consumer may file a lawsuit to enforce the remedies
275provided under this chapter. In any civil action arising under
276this chapter and relating to the matter considered by the
277program department, any determination made to reject a dispute
278is admissible in evidence.
279     (e)  The department may delegate responsibility for the
280screening of claims to the program, in which event claims filed
281with the department shall be forwarded to the program
282administrator and the provisions of this section shall apply to
283claims screened by the program.
284     (4)  Mediation shall be mandatory for both the consumer and
285manufacturer, unless the dispute is settled prior to the
286scheduled mediation conference. The mediation conference shall
287be confidential and inadmissible in any subsequent adversarial
288proceedings. Participation shall be limited to the parties
289directly involved in the dispute and their attorneys, if any.
290All manufacturers shall be represented by persons with
291settlement authority. The parties may, by agreement, consent to
292expand the scope of a mediation conference to attempt to resolve
293warranty claims by the consumer that may not be covered under
294this chapter, provided such claims were reported by the consumer
295to the manufacturer or its authorized service agent during the
296term of the manufacturer's express warranty.
297     (a)  Upon determination that an application is eligible
298receipt of an eligible application, the program administrator
299shall notify the consumer and all involved manufacturers in
300writing that an eligible application has been received. Such
301notification shall include a statement that a mediation
302conference will be scheduled, shall identify the assigned
303mediator, and provide information regarding the program's
304procedures. The program administrator shall provide all involved
305manufacturers with a copy of the completed application and
306obtain from each manufacturer a written response to the
307allegations contained in the application along with copies of
308any documents in support of such response. The written response
309shall be on a form and submitted in the manner prescribed by the
310program.
311     (b)  The mediator shall be selected and assigned by the
312program administrator. The parties may factually object to a
313mediator based upon the mediator's past or present relationship
314with a party or a party's attorney, direct or indirect, whether
315financial, professional, social, or of any other kind. The
316program administrator shall consider any such objection,
317determine its validity, and notify the parties of any
318determination. If the objection is determined valid, the program
319administrator shall assign another mediator to the case.
320     (c)  At the mediation conference, the mediator shall assist
321the parties' efforts to reach a mutually acceptable settlement
322of their dispute; however, the mediator shall not impose any
323settlement upon the parties.
324     (d)  Upon conclusion of the mediation conference, the
325mediator shall notify the program administrator that the case
326has settled or remains at an impasse. The program administrator
327shall notify the department in writing of the outcome of the
328mediation.
329     (e)  If the mediation conference ends in an impasse, it
330shall proceed to arbitration pursuant to subsection (5). The
331program administrator shall immediately notify the parties in
332writing that the dispute will proceed to arbitration and shall
333identify the assigned arbitrator.
334     (f)  If the parties enter into a settlement at any time
335after the dispute has been submitted to the program, such
336settlement must be reduced to legible writing, signed by the
337consumer and all involved manufacturers, and filed with the
338program administrator. The program administrator shall send a
339copy to the department. All settlements must contain, at a
340minimum, the following information:
341     1.  Name and address of the consumer.
342     2.  Name and address of each involved manufacturer.
343     3.  Year, make, model, and vehicle identification number of
344the subject recreational vehicle.
345     4.  Name and address of the dealership from which the
346recreational vehicle was acquired.
347     5.  Date the claim was received by the program
348administrator.
349     6.  Name of the mediator and/or arbitrator, if any.
350     7.  A complete statement of the terms of the agreement,
351including, but not limited to: whether the vehicle is to be
352reacquired by a manufacturer and the identity of the
353manufacturer that will reacquire the vehicle; the amount of any
354moneys to be paid by the consumer and/or a manufacturer; the
355year, make, and model of any replacement motor vehicle or motor
356vehicle accepted by the consumer as a trade-assist; the date,
357time, location, and nature of any agreed upon repair or
358replacement of a component part or accessory and an estimate as
359to the anticipated length of time for such repair or
360replacement; and a time certain for performance not to exceed 40
361days from the date the settlement agreement is signed by the
362parties.
363     (g)  If a manufacturer fails to perform within the time
364required in any settlement agreement, the consumer must notify
365the program administrator of such failure in writing within 30
36610 days of the required performance date. Within 10 days of
367receipt of such notice, the program administrator shall
368determine whether the dispute is eligible to proceed to
369arbitration notify the department of the manufacturer's failure
370in compliance and shall schedule the matter for an arbitration
371hearing pursuant to subsection (5). If the program administrator
372determines the dispute is not eligible for arbitration, the
373dispute shall be rejected pursuant to subsection (3).
374     (5)  If the mediation ends in an impasse, or if a
375manufacturer fails to comply with the settlement entered into
376between the parties, the program administrator shall schedule
377the dispute for an arbitration hearing. Arbitration proceedings
378shall be open to the public on reasonable and nondiscriminatory
379terms.
380     (a)  The arbitration hearing shall be conducted by a single
381arbitrator assigned by the program administrator. The arbitrator
382shall not be the same person as the mediator who conducted the
383prior mediation conference in the dispute. The parties may
384factually object to an arbitrator based on the arbitrator's past
385or present relationship with a party or a party's attorney,
386direct or indirect, whether financial, professional, social, or
387of any other kind. The program administrator shall consider any
388such objection, determine its validity, and notify the parties
389of any determination. If the objection is determined valid, the
390program administrator shall assign another arbitrator to the
391case.
392     (b)  The arbitrator may issue subpoenas for the attendance
393of witnesses and for the production of records, documents, and
394other evidence. Subpoenas so issued shall be served and, upon
395application to the court by a party to the arbitration, enforced
396in the manner provided by law for the service and enforcement of
397subpoenas in civil actions. Fees for attendance as a witness
398shall be the same as for a witness in the circuit court.
399     (c)  At all program arbitration proceedings, the parties
400may present oral and written testimony, present witnesses and
401evidence relevant to the dispute, cross-examine witnesses, and
402be represented by counsel. The technical rules of evidence as
403are applicable to civil court proceedings shall not apply to
404arbitrations conducted by the program. The arbitrator shall
405record the arbitration hearing and shall have the power to
406administer oaths. The arbitrator may inspect the vehicle if
407requested by a party or if the arbitrator considers such
408inspection appropriate. The parties may, by mutual written
409agreement, consent to expand the scope of the arbitration
410hearing to permit consideration by the arbitrator of warranty
411claims by the consumer that may not be covered under this
412chapter, provided such claims were first reported by the
413consumer to the manufacturer or its authorized service agent
414during the term of the manufacturer's express warranty.
415     (d)  The program arbitrator may continue a hearing on his
416or her own motion or upon the request of a party for good cause
417shown. A request for continuance by the consumer constitutes a
418waiver of the time period set forth in s. 681.1096(3)(k) for
419completion of all proceedings under the program.
420     (e)  Where the arbitration is the result of a
421manufacturer's failure to perform in accordance with a
422settlement agreement, any relief to the consumer granted by the
423arbitration will be no less than the relief agreed to by the
424manufacturer in the settlement agreement.
425     (e)(f)  The arbitrator shall, in rendering decisions, take
426into account all legal and equitable factors germane to a fair
427and just decision, including, but not limited to, the warranty
428and the provisions of this chapter grant relief if a reasonable
429number of attempts have been undertaken to correct a
430nonconformity or nonconformities.
431     (f)(g)  The program arbitrator shall render a decision
432within 10 days of the closing of the hearing. The decision shall
433be in legible writing on a form prescribed or approved by the
434program department. The program administrator shall send a copy
435of the decision to the consumer and each involved manufacturer
436by registered mail. The program administrator shall also send a
437copy of the decision to the department within 5 days of mailing
438to the parties.
439     (g)(h)  A manufacturer shall comply with an arbitration
440decision within 40 days of the date the manufacturer receives
441the written decision. Compliance occurs on the date the consumer
442receives delivery of an acceptable replacement motor vehicle or
443the relief refund specified in the arbitration award.
444     (h)  If a manufacturer fails to comply within the time
445required, and no appeal has been filed, the consumer shall must
446notify the program administrator of such failure in writing
447within 30 10 days. The program administrator shall notify the
448department of a manufacturer's failure to comply. A consumer may
449apply to a court of competent jurisdiction in this state for
450entry of an order confirming the award. Such application shall
451be by motion filed within 40 days of the manufacturer's failure
452to comply and shall be heard in the manner and upon notice
453provided by law or rule of court for the making and hearing of
454motions. Such application shall be served in the manner provided
455by law for the service of a civil summons. The consumer shall
456send a copy of the application for confirmation of the award and
457any order entered by the court confirming the award to the
458program administrator. The department shall have the authority
459to enforce compliance with arbitration decisions under this
460section in the same manner as is provided for enforcement of
461compliance with board decisions under s. 681.1095(10). In any
462civil action arising under this chapter and relating to a
463dispute arbitrated pursuant to this section, the decision of the
464arbitrator is admissible in evidence.
465     (i)  Either party may request that the program arbitrator
466make a technical correction to the decision by filing a written
467request with the program administrator within 10 days after
468receipt of the written decision. Technical corrections shall be
469limited to computational errors, correction of a party's name or
470information regarding the recreational vehicle, and
471typographical or spelling errors. Technical correction of a
472decision shall not toll the time for filing an appeal or for
473manufacturer compliance.
474     (6)  Except as otherwise provided, all provisions in this
475section pertaining to mandatory mediation and arbitration,
476eligibility screening, mediation proceedings, arbitration
477hearings and decisions, and any appeals thereof are exempt from
478the provisions of chapter 120.
479     (7)  A decision of the arbitrator is binding unless
480appealed by either party by filing a petition with the circuit
481court within the time and in the manner prescribed by s.
482681.1095(10) and (12). Section 681.1095(13) and (14) apply to
483appeals filed under this section. If a decision of a program
484arbitrator in favor of a consumer is confirmed by the court,
485recovery by the consumer shall include the pecuniary value of
486the award, attorney's fees incurred in obtaining confirmation of
487the award, and all costs and continuing damages in the amount of
488$25 per day for each day beyond the 40-day period following a
489manufacturer's receipt of the arbitrator's decision. If a court
490determines the manufacturer acted in bad faith in bringing the
491appeal or brought the appeal solely for the purpose of
492harassment, or in complete absence of a justiciable issue of law
493or fact, the court shall double, and may triple, the amount of
494the total award.
495     (8)  In any civil action arising under this chapter
496relating to a dispute arbitrated pursuant to this section, the
497decision of the arbitrator is admissible in evidence.
498     (9)(8)  The department shall have the authority to adopt
499reasonable rules pursuant to ss. 120.536(1) and 120.54 to
500implement carry out the provisions of this section.
501     Section 4.  This act shall take effect upon becoming a law.


CODING: Words stricken are deletions; words underlined are additions.