Florida Senate - 2007 COMMITTEE AMENDMENT
Bill No. SB 1444
Barcode 084044
CHAMBER ACTION
Senate House
.
.
1 Comm: RCS .
03/27/2007 03:10 PM .
2 .
.
3 .
.
4 ______________________________________________________________
5
6
7
8
9
10 ______________________________________________________________
11 The Committee on Judiciary (Joyner) recommended the following
12 amendment:
13
14 Senate Amendment (with title amendment)
15 Delete everything after the enacting clause
16
17 and insert:
18 Section 1. It is the intent of the Legislature to
19 establish the Home Court Advantage Pilot Program as a pilot
20 program in Hillsborough and Pinellas Counties for a period of
21 1 year. The purpose of the Home Court Advantage Pilot Program
22 is to establish an inexpensive, expedient, and simplified
23 court procedure as an independent venue in which certain
24 community associations and parcel owners can informally
25 resolve disputes relating to covenants and restrictions
26 without having to resort to potentially time-consuming and
27 expensive court litigation. The Home Court Advantage Pilot
28 Program shall be implemented and administered by the chief
29 judge of the Thirteenth Judicial Circuit in Hillsborough
30 County and the chief judge of the Sixth Judicial Circuit in
31 Pinellas County, subject to the supervision of the Florida
1
1:08 PM 03/23/07 s1444d-ju18-tk8
Florida Senate - 2007 COMMITTEE AMENDMENT
Bill No. SB 1444
Barcode 084044
1 Supreme Court.
2 Section 2. Definitions.--As used in this act, the
3 term:
4 (1) "Community association" means an association
5 responsible for the operation of a condominium as defined by
6 s. 718.103, Florida Statutes; an association responsible for
7 the operation of a cooperative as defined by s. 719.103,
8 Florida Statutes; a timeshare condominium or cooperative
9 association regulated by chapters 718 and 721, Florida
10 Statutes; and a homeowners' association as defined by s.
11 720.301, Florida Statutes, except that the term does not
12 include any such association if a developer elects or appoints
13 a majority of the members of the board of directors of the
14 association. A community association within the meaning of
15 this act includes only those community associations operating
16 residential communities partially or totally situated in
17 Pinellas County or in Hillsborough County. An association
18 operating a commercial community is not subject to this act. A
19 mixed-use condominium as defined by s. 718.404, Florida
20 Statutes, is a community association for purposes of this act
21 to the extent that the dispute involves the association and
22 the amount of a residential unit.
23 (2) "Parcel owner" means the owner of legal title to a
24 parcel governed by a community association.
25 (3) "Dispute" means a disagreement between a community
26 association and a parcel owner concerning the validity or
27 enforcement of restrictions contained in the documents
28 governing the community, including any declaration of
29 restrictions and covenants, declaration of condominium, deed
30 restrictions, the articles of incorporation, and bylaws of the
31 community association, or any rules governing the community,
2
1:08 PM 03/23/07 s1444d-ju18-tk8
Florida Senate - 2007 COMMITTEE AMENDMENT
Bill No. SB 1444
Barcode 084044
1 which dispute arises in the Thirteenth or Sixth Judicial
2 Circuits. The term also includes the failure of the
3 association or parcel owner to comply with the requirements of
4 chapter 718, chapter 719, chapter 720, or chapter 721, Florida
5 Statutes, as applicable.
6 (4) "Petitioner" means the party filing a petition
7 pursuant to this act. Respondent is the party responding to
8 the petition.
9 (5) "Developer" means the entity creating the
10 community operated by the association or any entity that
11 offers residential parcels for sale or lease in the ordinary
12 course of its business within that community.
13 Section 3. Rules of procedure; report required.--
14 (1) The chief judges of the Thirteenth and Sixth
15 Judicial Circuits may adopt rules and procedures for the
16 creation and operation of the Home Court Advantage Pilot
17 Program in Hillsborough County and Pinellas County,
18 respectively. The chief judges shall adopt simplified rules of
19 practice and procedure which include a form petition and form
20 answer. The petition must be verified. The rules shall be
21 designed to promote the inexpensive and expedient resolution
22 of a dispute. The court shall adopt rules allowing qualified
23 lay representatives, including community association managers
24 licensed under chapter 468, Florida Statutes, to represent a
25 party and to file a petition, answer, or other pleadings with
26 the court upon proper application. The rules shall be
27 liberally construed to facilitate the inexpensive resolution
28 of disputes. The parties should be encouraged to engage in
29 proceedings under this act without the necessity of legal
30 counsel where appropriate.
31 (2) The chief judges shall direct a report to the
3
1:08 PM 03/23/07 s1444d-ju18-tk8
Florida Senate - 2007 COMMITTEE AMENDMENT
Bill No. SB 1444
Barcode 084044
1 Supreme Court within 60 days following the conclusion of the
2 pilot program. This report shall review the operation and
3 results of the program. The Chief Justice of the Supreme Court
4 shall review the reports and make determinations and
5 recommendations to the Legislature by February 1, 2009,
6 concerning the feasibility of establishing a statewide program
7 and provide copies of the result to the President of the
8 Senate, the Speaker of the House of Representatives, and the
9 minority leader of each house of the Legislature.
10 Section 4. Jurisdiction.--
11 (1) Subject to subsection (2), a dispute within the
12 jurisdiction of the Home Court Advantage Pilot Program
13 includes any dispute regarding the enforceability or validity
14 of those documents governing the operation of the community
15 association, the reasonableness of any action of the board of
16 directors of the community association involving the
17 documents, any dispute in which an association seeks
18 enforcement of its documents, and any dispute alleging the
19 failure of a community association or parcel owner to comply
20 with the requirements of chapter 718, chapter 719, chapter
21 720, or chapter 721, Florida Statutes, whichever is
22 applicable, or the documents governing the community.
23 (2) Only disputes between a community association and
24 a parcel owner are within the jurisdiction of the program.
25 Officers or directors of the community association may not be
26 parties in these proceedings. Disputes involving tenants or
27 guests of parcel owners are subject to this act if the tenant
28 is alleged to have violated the documents governing the
29 community, except that eviction proceedings are exempt from
30 the jurisdiction of the program. Disagreements relating to the
31 imposition, reasonableness, or collection of fines,
4
1:08 PM 03/23/07 s1444d-ju18-tk8
Florida Senate - 2007 COMMITTEE AMENDMENT
Bill No. SB 1444
Barcode 084044
1 assessments, special assessments, or other fees owed by a
2 parcel owner, lien foreclosure actions, or disagreements
3 regarding the enforcement of a judgment are not subject to the
4 pilot program.
5 (3) If a dispute described by this act is also
6 otherwise subject to the mandatory nonbinding arbitration
7 programs described by s. 718.1255 or s. 719.1255, Florida
8 Statutes, applicable to condominiums or cooperatives, or is
9 otherwise subject to mandatory mediation or mandatory binding
10 arbitration as provided by s. 720.311, Florida Statutes,
11 relating to homeowners' associations, the dispute shall be
12 filed pursuant to this act and is not required or permitted to
13 be filed pursuant to chapter 718, chapter 719, or chapter 720,
14 Florida Statutes, as applicable, except that recall and
15 election disputes shall continue to be subject to s. 718.1255,
16 s. 719.1255, or s. 720.311, Florida Statutes, as applicable,
17 and are not within the jurisdiction of this act.
18 (4) Regardless of whether this authority exists in the
19 documents governing the community association, a parcel owner
20 may commence a proceeding under this act against another
21 parcel owner or against the association for any violation of
22 the documents or controlling statute, and an association may
23 also commence a proceeding against a parcel owner, or the
24 owner and his tenant or occupant, for violations of the
25 documents or statute. If authorized by a power of attorney
26 executed by an association, a parcel owner may commence an
27 enforcement proceeding in the name of the association.
28 Section 5. Procedure for mandatory filing; filing
29 fee.--
30 (1) Before filing a petition with the clerk, the
31 petitioner shall provide the intended respondent with a
5
1:08 PM 03/23/07 s1444d-ju18-tk8
Florida Senate - 2007 COMMITTEE AMENDMENT
Bill No. SB 1444
Barcode 084044
1 written demand identifying the nature of the dispute,
2 demanding the relief sought, stating that, if the relief is
3 not provided, the dispute will be filed in the courts, and
4 providing the respondent with a reasonable period of time
5 within which to provide the relief sought. The failure to
6 provide advance written notice shall result in the dismissal
7 of the petition.
8 (2) Before filing a dispute with the court, a dispute
9 within the jurisdiction of the pilot program must be filed
10 with the clerk of court in the county in which the community
11 governed by the community association is located. At the same
12 time the petition is filed, the petitioner shall provide a
13 copy of the petition and attachments to the respondent by
14 United States certified mail. The petition must be on a form
15 adopted by the court, or must be substantially similar to the
16 form, and must include a copy of the demand letter required by
17 subsection (1). The petition must include portions of the
18 governing documents relied upon in the petition.
19 (3) The clerk of the court in which the petition is
20 filed shall direct an order to the respondent by certified
21 mail which shall provide the respondent 14 days in which to
22 file an answer to the petition. The answer must include any
23 defenses that the respondent has to the petition. If the
24 respondent files a motion to dismiss the petition, it must be
25 accompanied by an answer and defenses in order to promote the
26 timely resolution of the dispute. The answer may not include
27 any claim that the respondent may have against the petitioner,
28 but may address only the dispute stated in the petition.
29 (4) Any petition filed must include the circuit court
30 filing fee set forth in s. 28.241, Florida Statutes, currently
31 set in the amount of $255, payable to the clerk of the court
6
1:08 PM 03/23/07 s1444d-ju18-tk8
Florida Senate - 2007 COMMITTEE AMENDMENT
Bill No. SB 1444
Barcode 084044
1 in which the dispute is to be filed. This fee is
2 nonrefundable. The filing fees shall be used by the court to
3 defray the costs of administering the program.
4 (5) Where a party filing a petition demonstrates to
5 the magistrate at the time of the filing of the petition or
6 thereafter that the party is in need of and entitled to
7 immediate emergency injunctive relief, the magistrate may
8 abate the proceeding and allow the party to file for a
9 temporary injunction in court.
10 Section 6. Magistrates.--
11 (1) The court shall maintain a list of qualified
12 magistrates to hear the disputes described by this act. In
13 order to be qualified, the person seeking to act as a
14 magistrate must be a member in good standing with The Florida
15 Bar and must have practiced law in the area of community
16 association disputes for at least 5 years, or must be a member
17 in good standing of The Florida Bar and licensed as a
18 community association manager pursuant to part VIII of chapter
19 468, Florida Statutes. The courts may, by rule, adopt
20 additional requirements for qualification.
21 (2) A magistrate shall serve without compensation, but
22 is entitled to immunity as provided by s. 44.107, Florida
23 Statutes. A magistrate serves at the pleasure of the chief
24 judge of the circuit court.
25 Section 7. Conduct of proceedings; appeals.--
26 (1) A magistrate may hear and decide the disputes
27 filed pursuant to this act, but she or he may not hold a
28 person in contempt. A magistrate may enter all orders
29 necessary or helpful in the conduct of the proceedings,
30 including the imposition of sanctions and fines, against a
31 party that refuses to comply with a lawful nonfinal order of
7
1:08 PM 03/23/07 s1444d-ju18-tk8
Florida Senate - 2007 COMMITTEE AMENDMENT
Bill No. SB 1444
Barcode 084044
1 the magistrate. A magistrate may issue subpoenas to compel the
2 attendance and production of persons and documents. The
3 magistrate shall, unless waived by both parties to the
4 dispute, conduct a final hearing, if one is required, within
5 60 days after the filing of the petition, and shall, within 14
6 days after the final hearing, issue a final order. The final
7 order is binding on the parties, except that if an appeal by
8 trial de novo is not filed in the circuit court within 30 days
9 after rendition of the final order, the final order is binding
10 on the parties and may be enforced in the courts of this state
11 as provided in subsection (2). The final order of the
12 magistrate is admissible in any appeal of the final order.
13 (2) A final order of the magistrate which has not been
14 timely appealed may be enforced by filing a petition for
15 enforcement in circuit court. The prevailing party in an
16 enforcement action is entitled to reasonable costs and
17 attorney's fees.
18 (3) If no timely appeal has been filed in a case in
19 which a party who was ordered by final order of the magistrate
20 to take some action or to refrain from taking some action does
21 not comply with the final order of the magistrate within 30
22 days after rendition of the final order, the magistrate
23 retains jurisdiction upon the petition or request of a party
24 to impose a fine against the offending party for noncompliance
25 with the final order. A fine may not exceed $100 per
26 violation. However, a fine may be levied on the basis of each
27 day of a continuing violation which may not, in the aggregate,
28 exceed $1,000 per violation. A fine shall be imposed only upon
29 notice and upon the conduct of a proceeding conducted by the
30 magistrate during which the parties have an opportunity to
31 appear and be heard on the issue of the intended fine. Any
8
1:08 PM 03/23/07 s1444d-ju18-tk8
Florida Senate - 2007 COMMITTEE AMENDMENT
Bill No. SB 1444
Barcode 084044
1 order imposing a fine may be appealed to the circuit court
2 within 30 days after rendition of the order. If a fine is
3 imposed against a parcel owner for noncompliance with the
4 final order of the magistrate, the association is entitled to
5 one-half of the amount of the fine imposed, and the
6 association may use its lien authority to collect its half of
7 the unpaid fine. The other half of the fine shall be paid to
8 the clerk of the circuit court and used to defray the costs of
9 administering the pilot program.
10 (4) The magistrate shall conduct these proceedings,
11 including the final hearing, in accordance with simplified
12 rules of procedure adopted by the chief judge of the court in
13 which the petition is filed. Discovery rights shall be
14 restricted to cases in which manifest prejudice to a party is
15 shown to result from a denial of discovery. The magistrate is
16 not bound by formal rules of evidence and evidence of a kind
17 normally relied upon by persons in the conduct of their
18 affairs is admissible and shall be considered by the
19 magistrate. Evidence that is cumulative shall be excluded from
20 consideration.
21 (5) A magistrate may grant all relief necessary for
22 the disposition of the dispute including, but not limited to,
23 making a finding that a provision contained in the documents
24 is invalid and unenforceable; an order enforcing the
25 provisions of the documents and statute; an order requiring an
26 association or parcel owner, tenant, or guest to comply with
27 the documents or statute; or and an order finding that the
28 association has selectively enforced its documents. However, a
29 magistrate may not reform the documents governing the
30 community.
31 (6) In deciding a dispute, a magistrate shall follow
9
1:08 PM 03/23/07 s1444d-ju18-tk8
Florida Senate - 2007 COMMITTEE AMENDMENT
Bill No. SB 1444
Barcode 084044
1 and apply the applicable statute as well as controlling case
2 law, including case law holding that in a community
3 association a declaration may be unreasonable yet be
4 nonetheless enforceable.
5 (7) A magistrate is subject to the standards of
6 professional conduct contained in the Florida Rules for
7 Court-Appointed Arbitrators. A magistrate may not preside over
8 a dispute involving a party currently represented by the
9 magistrate, but may preside over a dispute involving a former
10 client where both parties, upon disclosure of the prior
11 representation, consent in writing.
12 (8) A magistrate may, in the exercise of his or her
13 discretion, award reasonable prevailing party costs and
14 attorney's fees.
15 Section 8. This act shall take effect July 1, 2007.
16
17
18 ================ T I T L E A M E N D M E N T ===============
19 And the title is amended as follows:
20 Delete everything before the enacting clause
21
22 and insert:
23 A bill to be entitled
24 An act relating to covenants and deed
25 restrictions; providing legislative intent;
26 providing definitions; requiring the chief
27 judges in the Thirteen and Sixth Judicial
28 Circuits to adopt certain rules and procedures
29 for the establishment of a pilot arbitration
30 program in Hillsborough County and Pinellas
31 County, respectively; requiring the chief
10
1:08 PM 03/23/07 s1444d-ju18-tk8
Florida Senate - 2007 COMMITTEE AMENDMENT
Bill No. SB 1444
Barcode 084044
1 judges to submit a report to the Florida
2 Supreme Court regarding the program; providing
3 for jurisdiction; authorizing the filing of a
4 dispute; authorizing a parcel owner or
5 community association to commence a proceeding;
6 providing complaint procedures; requiring a
7 filing fee; providing qualifications for
8 magistrates; providing duties and
9 responsibilities of magistrates during
10 arbitration proceedings; providing proceedings
11 for appeal; providing a code of ethics for
12 magistrates; providing an effective date.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
11
1:08 PM 03/23/07 s1444d-ju18-tk8