HB 923

1
A bill to be entitled
2An act relating to 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
12terms of service, 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, 2009, 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 community association may appoint the community
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 home
123court magistrate shall issue an order requiring the complainant
124and the defendant to appear for a final hearing within 60 days
125after receipt of service of the complaint. The defendant shall
126provide to the complainant a copy of the defendant's response to
127the notice to comply at least 10 days prior to the final
128hearing.
129     (3)(a)  Within 30 days after the home court magistrate
130issues an order requiring the final hearing, the parties shall
131be required to attend mediation conducted pursuant to the rules
132of practice and procedure adopted by the Supreme Court pursuant
133to s. 44.102, Florida Statutes.
134     (b)  The parties to the mediation shall provide copies of
135the documents referenced in the checklist in subsection (1).
136     (c)  Upon the showing of good cause, the home court
137magistrate may continue the hearing to require the parties to
138produce additional information and documentation. The parties
139shall provide any additional information or documentation
140required by the home court magistrate within 15 days after the
141home court magistrate's request.
142     (d)  The home court magistrate shall make findings of
143reasonableness of the restriction or covenant and any fines to
144be imposed under the restriction. The home court magistrate
145shall rule on the validity of the restriction and the fine
146imposed by the community association.
147     (e)  The purpose of the hearing shall be the issuance of an
148order by the home court magistrate imposing a fine on the party
149in violation, compelling the party in violation to comply with
150the restriction, and enjoining the party in violation from
151continuing the violation. The party in violation shall have 30
152days to comply with the order unless good cause is shown to the
153home court magistrate why a longer period should be allowed.
154     (f)  The maximum fine the home court magistrate may impose
155is the fine alleged by the party bringing the complaint. The
156home court magistrate may reduce the fine. The fine shall be
157paid to and retained by the home court program. If the action
158for compliance is for dues or special assessments, the amount of
159the dues or special assessments shall be paid to the community
160association, minus 10 percent of such amount to be retained by
161the home court program for purposes of administering the
162program.
163     (4)  If the party in violation does not comply with the
164home court magistrate's order within 30 days after the order is
165issued and, prior to the expiration of the 30-day period, good
166cause has not been shown to the home court magistrate for
167extending the period, or within the period of an extension of
168the 30-day period if good cause has been shown to the home court
169magistrate for extending the period and the home court
170magistrate grants an extension, and the violation of the deed
171restriction or covenant is monetary, notwithstanding the
172limitations of chapter 713, Florida Statutes, s. 720.305,
173Florida Statutes, or any other provision of law restricting the
174perfecting of a lien on real property, the complainant may file
175a lien to be placed upon the property for all amounts included
176in the home court magistrate's order plus filing fees and costs
177for bringing the action.
178     (5)(a)  Upon application to the home court by a party to
179the mediation or the mediator, a home court magistrate, in the
180course of his or her jurisdiction, may issue subpoenas for the
181attendance of necessary and material witnesses and for the
182production of books, records, documents, and other evidence and
183may administer oaths. Subpoenas shall be served and enforced in
184the manner provided by law for the service and enforcement of
185subpoenas in a civil action. A party or mediator applying to the
186home court for issuance of a subpoena shall provide to the court
187a separate envelope for each person the party or mediator
188requests the home court magistrate to subpoena. The envelope
189shall be addressed to the person and have the postage paid for
190certified, return receipt requested, mail. The home court
191magistrate shall mail the subpoena to the person subject to the
192subpoena.
193     (b)  Upon application of a party to the mediation and for
194use as evidence, the mediator, in the course of his or her
195jurisdiction, may permit a deposition to be taken of a witness
196who cannot be subpoenaed or is unable to attend the mediation in
197the manner and upon the terms designated by the mediator. All
198provisions of law compelling a person under subpoena to testify
199apply to the deposition.
200     (6)  This section does not limit the rights of the parties
201to seek injunctive relief in circuit court to compel compliance.
202     Section 6.  Appeals.--An order of a home court magistrate
203may be appealed, under the rules of court, to the circuit court.
204The appeal shall be based upon the record of the hearing before
205the home court magistrate and shall not be a hearing de novo.
206The appellant is responsible for producing the record of the
207hearing beyond that which normally results from the home court
208hearing process.
209     Section 7.  Qualifications.--An applicant for the position
210of home court magistrate shall be a member in good standing of
211The Florida Bar with at least 5 years of experience in
212litigation actions involving enforcement of deed restrictions or
213covenants or be a community association manager licensed under
214s. 468.433, Florida Statutes.
215     Section 8.  Compensation; terms of service.--A home court
216magistrate is an independent contractor and shall serve without
217compensation and at the pleasure of the chief judge of the
218judicial circuit in which he or she is to hear cases.
219     Section 9.  Code of ethics.--A home court magistrate is
220subject to the Code of Ethics for Arbitrators in Commercial
221Disputes published by the American Arbitration Association or
222the standards and procedures for professional conduct and
223discipline for mediators and arbitrators established by the
224Supreme Court pursuant to s. 44.106, Florida Statutes. A home
225court magistrate is not subject to the Judicial Code of Ethics,
226except a home court magistrate shall avoid practices or
227occupations that would constitute a conflict of interest or give
228the appearance of impropriety. Whether serving full time or part
229time, a home court magistrate is prohibited from representing
230clients or practicing before any other home court or from
231representing any client appealing the decision of any other home
232court magistrate. A home court magistrate appointed under
233section 1 has judicial immunity in the same manner and to the
234same extent as judges.
235     Section 10.  Nonseverability.--If the provisions of section
2364 authorizing home court magistrates to impose sanctions are
237found to be unconstitutional by the Supreme Court, the home
238court magistrates shall have no further jurisdiction over civil
239infractions.
240     Section 11.  This act shall take effect July 1, 2007.


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