| 1 | A bill to be entitled | 
| 2 | An act relating to Home Court Advantage Pilot Program; | 
| 3 | providing legislative intent; providing definitions; | 
| 4 | requesting the chief judges of the Thirteenth and Sixth | 
| 5 | Judicial Circuits to adopt certain rules and procedures | 
| 6 | for the establishment of the pilot program in Hillsborough | 
| 7 | County and Pinellas County, respectively, for the purpose | 
| 8 | of resolving disputes relating to deed restrictions or | 
| 9 | covenants in deed-restricted communities; requiring a | 
| 10 | report; providing for jurisdiction, filing and complaint | 
| 11 | procedures, appeals, qualifications, compensation and | 
| 12 | terms of service, and code of ethics; providing for | 
| 13 | nonseverability; providing an effective date. | 
| 14 | 
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| 15 | Be It Enacted by the Legislature of the State of Florida: | 
| 16 | 
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| 17 | Section 1.  Legislative intent.--It is the intent of the | 
| 18 | Legislature to establish the Home Court Advantage Pilot Program | 
| 19 | as a pilot program in Hillsborough and Pinellas Counties for a | 
| 20 | period of 1 year. The purpose of the Home Court Advantage Pilot | 
| 21 | Program is to establish an inexpensive, expedient, simplified | 
| 22 | court procedure as an independent venue for ownership or | 
| 23 | management entities in deed-restricted communities to resolve | 
| 24 | disputes relating to deed restrictions or covenants informally | 
| 25 | without the restrictions and procedures required for formal | 
| 26 | actions in circuit court. The Home Court Advantage Pilot Program | 
| 27 | shall be implemented and administered by the chief judge of the | 
| 28 | Thirteenth Judicial Circuit in Hillsborough County and the chief | 
| 29 | judge of the Sixth Judicial Circuit in Pinellas County, subject | 
| 30 | to the supervision of the Supreme Court. | 
| 31 | Section 2.  Definitions.-- | 
| 32 | (1)  "Community association" has the same meaning as | 
| 33 | provided in s. 468.431(1), Florida Statutes. | 
| 34 | (2)  "Community association manager" has the same meaning | 
| 35 | as provided in s. 468.431(3), Florida Statutes. | 
| 36 | (3)  "Complainant" means a party filing a complaint in home | 
| 37 | court. | 
| 38 | (4)  "Complaint" means an allegation by: | 
| 39 | (a)  A homeowners' association, condominium unit owners' | 
| 40 | association, cooperative association, community development | 
| 41 | district, or civic association that a property owner in a deed- | 
| 42 | restricted community is violating one or more restrictions that | 
| 43 | apply to the property; or | 
| 44 | (b)  A homeowner, condominium unit owner, member of a | 
| 45 | cooperative, resident of a community development district, or | 
| 46 | property owner in any deed-restricted community in which the | 
| 47 | respective association or district is selectively enforcing a | 
| 48 | deed restriction or covenant or is improperly or unlawfully | 
| 49 | seeking to enforce a deed restriction or covenant. | 
| 50 | (5)  "Deed-restricted community" means a residential | 
| 51 | community, condominium, cooperative, or community development | 
| 52 | district in which the properties in the community are subject to | 
| 53 | limitations or restrictions on or covenants restricting the use, | 
| 54 | design, or operation of properties in the community. | 
| 55 | (6)  "Defendant" means a party against whom a complaint is | 
| 56 | filed in home court. | 
| 57 | Section 3.  Objectives.--The chief judges of the Thirteenth | 
| 58 | and Sixth Judicial Circuits may adopt rules and procedures for | 
| 59 | the establishment and operation of the Home Court Advantage | 
| 60 | Pilot Program in Hillsborough County and Pinellas County, | 
| 61 | respectively. The chief judges shall report to the Supreme Court | 
| 62 | at the end of the program an analysis of the operation and | 
| 63 | results of the program. The Chief Justice of the Supreme Court | 
| 64 | shall review the reports and make determinations and | 
| 65 | recommendations to the Legislature by February 1, 2009, on the | 
| 66 | feasibility of establishing a statewide program and provide | 
| 67 | copies of the reports to the Speaker of the House of | 
| 68 | Representatives, the President of the Senate, and the minority | 
| 69 | leader of each house of the Legislature. | 
| 70 | Section 4.  Jurisdiction; limitations.-- | 
| 71 | (1)  Home court magistrates may be empowered to accept | 
| 72 | complaints about and decide the reasonableness of any | 
| 73 | restriction imposed pursuant to a deed to real property or fine | 
| 74 | imposed for a failure to comply with a deed restriction and may | 
| 75 | be empowered to issue orders, impose fines, and authorize the | 
| 76 | imposition of a lien on real property in the same manner as a | 
| 77 | circuit court judge under the laws, rules, and procedures | 
| 78 | presently existing or as subsequently amended, except that home | 
| 79 | court magistrates may not: | 
| 80 | (a)  Hold a party in contempt of court but may file a | 
| 81 | motion for order of contempt with the appropriate state circuit | 
| 82 | court judge; or | 
| 83 | (b)  Hear a case involving any dispute other than a deed | 
| 84 | restriction. | 
| 85 | (2)  This section does not prohibit a circuit court judge | 
| 86 | from exercising concurrent jurisdiction with a home court | 
| 87 | magistrate. | 
| 88 | Section 5.  Filing and complaint procedures.-- | 
| 89 | (1)  Any party may file, on its own behalf or through an | 
| 90 | attorney appointed by a party as attorney in fact, a complaint | 
| 91 | in home court alleging a violation of a deed restriction or | 
| 92 | covenant and seeking enforcement of the restriction or covenant | 
| 93 | or alleging unlawful enforcement of a deed restriction or | 
| 94 | covenant and seeking an injunction against such unlawful | 
| 95 | enforcement. A property owner in a deed-restricted community for | 
| 96 | which there is a community association may appoint the community | 
| 97 | association as his or her attorney in fact, pursuant to the | 
| 98 | provisions of s. 709.08, Florida Statutes, for the purposes of | 
| 99 | filing an action against another property owner in the deed- | 
| 100 | restricted community, or a member or officer of a homeowners' | 
| 101 | association of the community if there is one, seeking | 
| 102 | enforcement of a restriction or covenant or alleging unlawful | 
| 103 | enforcement of a restriction or covenant. The complainant shall | 
| 104 | pay a $75 filing fee to the home court. The complaint shall | 
| 105 | contain a completed checklist specifying: | 
| 106 | (a)  What restriction or covenant is being violated. | 
| 107 | (b)  When the violation occurred or began and if the | 
| 108 | violation is continuing. | 
| 109 | (c)  Whether the party in violation of the restriction or | 
| 110 | covenant 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 | 
| 114 | opportunity to comply with the restriction or covenant or cure | 
| 115 | the violation. | 
| 116 | (e)  Whether the attempt to enforce the restriction or | 
| 117 | covenant was selectively enforced or improper. | 
| 118 | (f)  Whether there were any special considerations relating | 
| 119 | to the failure to comply with the restriction or covenant. | 
| 120 | (g)  The remedy being sought against the party in | 
| 121 | violation. | 
| 122 | (2)  Upon filing proof of service of the complaint, a home | 
| 123 | court magistrate shall issue an order requiring the complainant | 
| 124 | and the defendant to appear for a final hearing within 60 days | 
| 125 | after receipt of service of the complaint. The defendant shall | 
| 126 | provide to the complainant a copy of the defendant's response to | 
| 127 | the notice to comply at least 10 days prior to the final | 
| 128 | hearing. | 
| 129 | (3)(a)  Within 30 days after the home court magistrate | 
| 130 | issues an order requiring the final hearing, the parties shall | 
| 131 | be required to attend mediation conducted pursuant to the rules | 
| 132 | of practice and procedure adopted by the Supreme Court pursuant | 
| 133 | to s. 44.102, Florida Statutes. | 
| 134 | (b)  The parties to the mediation shall provide copies of | 
| 135 | the documents referenced in the checklist in subsection (1). | 
| 136 | (c)  Upon the showing of good cause, the home court | 
| 137 | magistrate may continue the hearing to require the parties to | 
| 138 | produce additional information and documentation. The parties | 
| 139 | shall provide any additional information or documentation | 
| 140 | required by the home court magistrate within 15 days after the | 
| 141 | home court magistrate's request. | 
| 142 | (d)  The home court magistrate shall make findings of | 
| 143 | reasonableness of the restriction or covenant and any fines to | 
| 144 | be imposed under the restriction. The home court magistrate | 
| 145 | shall rule on the validity of the restriction and the fine | 
| 146 | imposed by the community association. | 
| 147 | (e)  The purpose of the hearing shall be the issuance of an | 
| 148 | order by the home court magistrate imposing a fine on the party | 
| 149 | in violation, compelling the party in violation to comply with | 
| 150 | the restriction, and enjoining the party in violation from | 
| 151 | continuing the violation. The party in violation shall have 30 | 
| 152 | days to comply with the order unless good cause is shown to the | 
| 153 | home court magistrate why a longer period should be allowed. | 
| 154 | (f)  The maximum fine the home court magistrate may impose | 
| 155 | is the fine alleged by the party bringing the complaint. The | 
| 156 | home court magistrate may reduce the fine. The fine shall be | 
| 157 | paid to and retained by the home court program. If the action | 
| 158 | for compliance is for dues or special assessments, the amount of | 
| 159 | the dues or special assessments shall be paid to the community | 
| 160 | association, minus 10 percent of such amount to be retained by | 
| 161 | the home court program for purposes of administering the | 
| 162 | program. | 
| 163 | (4)  If the party in violation does not comply with the | 
| 164 | home court magistrate's order within 30 days after the order is | 
| 165 | issued and, prior to the expiration of the 30-day period, good | 
| 166 | cause has not been shown to the home court magistrate for | 
| 167 | extending the period, or within the period of an extension of | 
| 168 | the 30-day period if good cause has been shown to the home court | 
| 169 | magistrate for extending the period and the home court | 
| 170 | magistrate grants an extension, and the violation of the deed | 
| 171 | restriction or covenant is monetary, notwithstanding the | 
| 172 | limitations of chapter 713, Florida Statutes, s. 720.305, | 
| 173 | Florida Statutes, or any other provision of law restricting the | 
| 174 | perfecting of a lien on real property, the complainant may file | 
| 175 | a lien to be placed upon the property for all amounts included | 
| 176 | in the home court magistrate's order plus filing fees and costs | 
| 177 | for bringing the action. | 
| 178 | (5)(a)  Upon application to the home court by a party to | 
| 179 | the mediation or the mediator, a home court magistrate, in the | 
| 180 | course of his or her jurisdiction, may issue subpoenas for the | 
| 181 | attendance of necessary and material witnesses and for the | 
| 182 | production of books, records, documents, and other evidence and | 
| 183 | may administer oaths. Subpoenas shall be served and enforced in | 
| 184 | the manner provided by law for the service and enforcement of | 
| 185 | subpoenas in a civil action. A party or mediator applying to the | 
| 186 | home court for issuance of a subpoena shall provide to the court | 
| 187 | a separate envelope for each person the party or mediator | 
| 188 | requests the home court magistrate to subpoena. The envelope | 
| 189 | shall be addressed to the person and have the postage paid for | 
| 190 | certified, return receipt requested, mail. The home court | 
| 191 | magistrate shall mail the subpoena to the person subject to the | 
| 192 | subpoena. | 
| 193 | (b)  Upon application of a party to the mediation and for | 
| 194 | use as evidence, the mediator, in the course of his or her | 
| 195 | jurisdiction, may permit a deposition to be taken of a witness | 
| 196 | who cannot be subpoenaed or is unable to attend the mediation in | 
| 197 | the manner and upon the terms designated by the mediator. All | 
| 198 | provisions of law compelling a person under subpoena to testify | 
| 199 | apply to the deposition. | 
| 200 | (6)  This section does not limit the rights of the parties | 
| 201 | to seek injunctive relief in circuit court to compel compliance. | 
| 202 | Section 6.  Appeals.--An order of a home court magistrate | 
| 203 | may be appealed, under the rules of court, to the circuit court. | 
| 204 | The appeal shall be based upon the record of the hearing before | 
| 205 | the home court magistrate and shall not be a hearing de novo. | 
| 206 | The appellant is responsible for producing the record of the | 
| 207 | hearing beyond that which normally results from the home court | 
| 208 | hearing process. | 
| 209 | Section 7.  Qualifications.--An applicant for the position | 
| 210 | of home court magistrate shall be a member in good standing of | 
| 211 | The Florida Bar with at least 5 years of experience in | 
| 212 | litigation actions involving enforcement of deed restrictions or | 
| 213 | covenants or be a community association manager licensed under | 
| 214 | s. 468.433, Florida Statutes. | 
| 215 | Section 8.  Compensation; terms of service.--A home court | 
| 216 | magistrate is an independent contractor and shall serve without | 
| 217 | compensation and at the pleasure of the chief judge of the | 
| 218 | judicial circuit in which he or she is to hear cases. | 
| 219 | Section 9.  Code of ethics.--A home court magistrate is | 
| 220 | subject to the Code of Ethics for Arbitrators in Commercial | 
| 221 | Disputes published by the American Arbitration Association or | 
| 222 | the standards and procedures for professional conduct and | 
| 223 | discipline for mediators and arbitrators established by the | 
| 224 | Supreme Court pursuant to s. 44.106, Florida Statutes. A home | 
| 225 | court magistrate is not subject to the Judicial Code of Ethics, | 
| 226 | except a home court magistrate shall avoid practices or | 
| 227 | occupations that would constitute a conflict of interest or give | 
| 228 | the appearance of impropriety. Whether serving full time or part | 
| 229 | time, a home court magistrate is prohibited from representing | 
| 230 | clients or practicing before any other home court or from | 
| 231 | representing any client appealing the decision of any other home | 
| 232 | court magistrate. A home court magistrate appointed under | 
| 233 | section 1 has judicial immunity in the same manner and to the | 
| 234 | same extent as judges. | 
| 235 | Section 10.  Nonseverability.--If the provisions of section | 
| 236 | 4 authorizing home court magistrates to impose sanctions are | 
| 237 | found to be unconstitutional by the Supreme Court, the home | 
| 238 | court magistrates shall have no further jurisdiction over civil | 
| 239 | infractions. | 
| 240 | Section 11.  This act shall take effect July 1, 2007. |