HB 1441

1
A bill to be entitled
2An act relating to the Home Court Advantage Pilot Program;
3providing legislative intent; providing definitions;
4requesting the chief judges of the Thirteenth and Sixth
5Judicial Circuits to adopt certain rules and procedures
6for the establishment of the pilot program in Hillsborough
7County and Pinellas County, respectively, for the purpose
8of resolving disputes relating to deed restrictions or
9covenants in deed-restricted communities; requiring a
10report; providing for jurisdiction, filing and complaint
11procedures, appeals, qualifications, compensation and term
12of office, and code of ethics; providing for
13nonseverability; providing an effective date.
14
15Be It Enacted by the Legislature of the State of Florida:
16
17     Section 1.  Legislative intent.--It is the intent of the
18Legislature to establish the Home Court Advantage Pilot Program
19as a pilot program in Hillsborough and Pinellas Counties for a
20period of 1 year. The purpose of the Home Court Advantage Pilot
21Program is to establish an inexpensive, expedient, simplified
22court procedure as an independent venue for ownership or
23management entities in deed-restricted communities to resolve
24disputes relating to deed restrictions or covenants informally
25without the restrictions and procedures required for formal
26actions in circuit court. The Home Court Advantage Pilot Program
27shall be implemented and administered by the chief judge of the
28Thirteenth Judicial Circuit in Hillsborough County and the chief
29judge of the Sixth Judicial Circuit in Pinellas County, subject
30to the supervision of the Supreme Court.
31     Section 2.  Definitions.--
32     (1)  "Community association" has the same meaning as
33provided in s. 468.431(1), Florida Statutes.
34     (2)  "Community association manager" has the same meaning
35as provided in s. 468.431(3), Florida Statutes.
36     (3)  "Complainant" means a party filing a complaint in home
37court.
38     (4)  "Complaint" means an allegation by:
39     (a)  A homeowners' association, condominium unit owners'
40association, cooperative association, community development
41district, or civic association that a property owner in a deed-
42restricted community is violating one or more restrictions that
43apply to the property; or
44     (b)  A homeowner, condominium unit owner, member of a
45cooperative, resident of a community development district, or
46property owner in any deed-restricted community in which the
47respective association or district is selectively enforcing a
48deed restriction or covenant or is improperly or unlawfully
49seeking to enforce a deed restriction or covenant.
50     (5)  "Deed-restricted community" means a residential
51community, condominium, cooperative, or community development
52district in which the properties in the community are subject to
53limitations or restrictions on or covenants restricting the use,
54design, or operation of properties in the community.
55     (6)  "Defendant" means a party against whom a complaint is
56filed in home court.
57     Section 3.  Objectives.--The chief judges of the Thirteenth
58and Sixth Judicial Circuits may adopt rules and procedures for
59the establishment and operation of the Home Court Advantage
60Pilot Program in Hillsborough County and Pinellas County,
61respectively. The chief judges shall report to the Supreme Court
62at the end of the program an analysis of the operation and
63results of the program. The Chief Justice of the Supreme Court
64shall review the reports and make determinations and
65recommendations to the Legislature by February 1, 2008, on the
66feasibility of establishing a statewide program and provide
67copies of the reports to the Speaker of the House of
68Representatives, the President of the Senate, and the minority
69leader of each house of the Legislature.
70     Section 4.  Jurisdiction; limitations.--
71     (1)  Home court magistrates may be empowered to accept
72complaints about and decide the reasonableness of any
73restriction imposed pursuant to a deed to real property or fine
74imposed for a failure to comply with a deed restriction and may
75be empowered to issue orders, impose fines, and authorize the
76imposition of a lien on real property in the same manner as a
77circuit court judge under the laws, rules, and procedures
78presently existing or as subsequently amended, except that home
79court magistrates may not:
80     (a)  Hold a party in contempt of court but may file a
81motion for order of contempt with the appropriate state circuit
82court judge; or
83     (b)  Hear a case involving any dispute other than a deed
84restriction.
85     (2)  This section does not prohibit a circuit court judge
86from exercising concurrent jurisdiction with a home court
87magistrate.
88     Section 5.  Filing and complaint procedures.--
89     (1)  Any party may file, on its own behalf or through an
90attorney appointed by a party as attorney in fact, a complaint
91in home court alleging a violation of a deed restriction or
92covenant and seeking enforcement of the restriction or covenant
93or alleging unlawful enforcement of a deed restriction or
94covenant and seeking an injunction against such unlawful
95enforcement. A property owner in a deed-restricted community for
96which there is a civic association may appoint the civic
97association as his or her attorney in fact, pursuant to the
98provisions of s. 709.08, Florida Statutes, for the purposes of
99filing an action against another property owner in the deed-
100restricted community, or a member or officer of a homeowners'
101association of the community if there is one, seeking
102enforcement of a restriction or covenant or alleging unlawful
103enforcement of a restriction or covenant. The complainant shall
104pay a $75 filing fee to the home court. The complaint shall
105contain a completed checklist specifying:
106     (a)  What restriction or covenant is being violated.
107     (b)  When the violation occurred or began and if the
108violation is continuing.
109     (c)  Whether the party in violation of the restriction or
110covenant was provided notice of the violation and, if so:
111     1.  When the notice was provided.
112     2.  If the notice was in writing.
113     (d)  Whether the party in violation was provided an
114opportunity to comply with the restriction or covenant or cure
115the violation.
116     (e)  Whether the attempt to enforce the restriction or
117covenant was selectively enforced or improper.
118     (f)  Whether there were any special considerations relating
119to the failure to comply with the restriction or covenant.
120     (g)  The remedy being sought against the party in
121violation.
122     (2)  Upon filing proof of service of the complaint, a
123magistrate shall issue an order requiring the complainant and
124the defendant to appear for a final hearing within 60 days after
125receipt of service of the complaint. The defendant shall provide
126to the complainant a copy of the defendant's response to the
127notice to comply at least 10 days prior to the final hearing.
128     (3)(a)  Within 30 days after the magistrate issues an order
129requiring the final hearing, the parties shall be required to
130attend mediation conducted pursuant to the rules of practice and
131procedure adopted by the Supreme Court pursuant to s. 44.102,
132Florida Statutes.
133     (b)  The parties to the mediation shall provide copies of
134the documents referenced in the checklist in subsection (1).
135     (c)  Upon the showing of good cause, the magistrate may
136continue the hearing to require the parties to produce
137additional information and documentation. The parties shall
138provide any additional information or documentation required by
139the magistrate within 15 days after the magistrate's request.
140     (d)  The magistrate shall make findings of reasonableness
141of the restriction or covenant and any fines to be imposed under
142the restriction. The magistrate shall rule on the validity of
143the restriction and the fine imposed by the community
144association.
145     (e)  The purpose of the hearing shall be the issuance of an
146order by the magistrate imposing a fine on the party in
147violation, compelling the party in violation to comply with the
148restriction, and enjoining the party in violation from
149continuing the violation. The party in violation shall have 30
150days to comply with the order unless good cause is shown to the
151magistrate why a longer period should be allowed.
152     (f)  The maximum fine the magistrate may impose is the fine
153alleged by the party bringing the complaint. The magistrate may
154reduce the fine. The fine shall be paid to and retained by the
155home court program. If the action for compliance is for dues or
156special assessments, the amount of the dues or special
157assessments shall be paid to the community association, minus 10
158percent of such amount to be retained by the home court program
159for purposes of administering the program.
160     (4)  If the party in violation does not comply with the
161magistrate's order within 30 days after the order is issued and,
162prior to the expiration of the 30-day period, good cause has not
163been shown to the magistrate for extending the period, or within
164the period of an extension of the 30-day period if good cause
165has been shown to the magistrate for extending the period and
166the magistrate grants an extension, and the violation of the
167deed restriction or covenant is monetary, notwithstanding the
168limitations of chapter 713, Florida Statutes, s. 720.305,
169Florida Statutes, or any other provision of law restricting the
170perfecting of a lien on real property, the complainant may file
171a lien to be placed upon the property for all amounts included
172in the magistrate's order plus filing fees and costs for
173bringing the action.
174     (5)(a)  Upon application to the home court by a party to
175the mediation or the mediator, a magistrate, in the course of
176his or her jurisdiction at the request of a party to an action,
177may issue subpoenas for the attendance of necessary and material
178witnesses and for the production of books, records, documents,
179and other evidence and may administer oaths. Subpoenas shall be
180served and enforced in the manner provided by law for the
181service and enforcement of subpoenas in a civil action. A party
182or mediator applying to the home court for issuance of a
183subpoena shall provide to the court a separate envelope for each
184person the party or mediator requests the magistrate to
185subpoena. The envelope shall be addressed to the person and have
186the postage paid for certified, return receipt requested, mail.
187The magistrate shall mail the subpoena to the person subject to
188the subpoena.
189     (b)  Upon application of a party to the mediation and for
190use as evidence, the mediator, in the course of his or her
191jurisdiction, may permit a deposition to be taken of a witness
192who cannot be subpoenaed or is unable to attend the mediation in
193the manner and upon the terms designated by the mediator. All
194provisions of law compelling a person under subpoena to testify
195apply to the deposition.
196     (6)  This section does not limit the rights of the parties
197to seek injunctive relief in circuit court to compel compliance.
198     Section 6.  Appeals.--An order of a home court magistrate
199may be appealed, under the rules of court, to the circuit court.
200The appeal shall be based upon the record of the hearing before
201the magistrate and shall not be a hearing de novo. The appellant
202is responsible for producing the record of the hearing beyond
203that which normally results from the home court hearing process.
204     Section 7.  Qualifications.--An applicant for the position
205of home court magistrate shall be a member in good standing of
206The Florida Bar with at least 5 years of experience in
207litigation actions involving enforcement of deed restrictions or
208covenants or be a community association manager licensed under
209s. 468.433, Florida Statutes.
210     Section 8.  Compensation; term of office.--A home court
211magistrate is an independent contractor and shall serve without
212compensation, shall serve at the pleasure of the chief judge of
213the judicial circuit in which he or she is to hear cases, and
214shall have no definite term of office.
215     Section 9.  Code of ethics.--A home court magistrate is
216subject to the Code of Ethics for Arbitrators in Commercial
217Disputes published by the American Arbitration Association or
218the standards and procedures for professional conduct and
219discipline for mediators and arbitrators established by the
220Supreme Court pursuant to s. 44.106, Florida Statutes. A home
221court magistrate is not subject to the Judicial Code of Ethics,
222except a magistrate shall avoid practices or occupations that
223would constitute a conflict of interest or give the appearance
224of impropriety. Whether serving full time or part time, a home
225court magistrate is prohibited from representing clients or
226practicing before any other home court or from representing any
227client appealing the decision of any other home court
228magistrate. A home court magistrate appointed under section 1
229has judicial immunity in the same manner and to the same extent
230as judges.
231     Section 10.  Nonseverability.--If the provisions of section
2324 authorizing magistrates to impose sanctions are found to be
233unconstitutional by the Supreme Court, the magistrates shall
234have no further jurisdiction over civil infractions.
235     Section 11.  This act shall take effect July 1, 2006.


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