Florida Senate - 2008 COMMITTEE AMENDMENT

Bill No. SB 2076

141568

CHAMBER ACTION

Senate

Comm: FAV

3/25/2008

House

The Committee on Judiciary (Deutch) recommended the following

amendment:

Senate Amendment (with title amendment)

Delete everything after the enacting clause

and insert:

Section 1. Section 682.501, Florida Statutes, is created to

read:

682.501 Florida Consumer Arbitration Act.--Sections

682.501-682.533 may be cited as the "Florida Consumer Arbitration

Act,"

Section 2. Section 682.502, Florida Statutes, is created to

read:

682.502 Definitions.--As used in ss. 682.501-682.533, the

term:

(1) "Arbitration organization" means an association,

agency, board, commission, or other entity that is neutral and

initiates, sponsors, or administers an arbitration proceeding or

is involved in the appointment of an arbitrator.

(2) "Arbitrator" means a neutral individual appointed to

render an award, alone or with others, in a controversy that is

subject to an agreement to arbitrate.

(3) "Consumer" means a party to an arbitration agreement

who, in the context of that arbitration agreement, is an

individual, not a business, who seeks or acquires, including by

lease, any goods or services primarily for personal, family, or

household purposes, including, but not limited to, transactions

involving banking, credit cards, home loans, and other financial

services; healthcare services; brokerage services; home

construction and improvements; insurance; communications; the

purchase and lease of motor vehicles and other personal

property; and the purchase and lease of real property. This

definition may not be construed to restrict the ability of

consumers to pursue arbitration on a group basis or render this

definition inapplicable to arbitrations involving multiple

consumer parties.

(4) "Consumer arbitration agreement" means a standardized

contract written by the nonconsumer party with a provision

requiring that disputes arising after the contract is signed be

submitted to binding arbitration, and the other party is a

consumer.

(5) "Evident partiality" means that a reasonable person

would conclude that the arbitrator was partial to one party to

the arbitration, or that it reasonably looks as though the

arbitrator would tend to favor one of the parties. This

definition does not require the party alleging such partiality

to prove that the arbitrator was actually prejudiced.

(6) "Financial interest" means holding a position in a

business as officer, director, trustee, or partner; holding any

position in management; or owning more than 5 percent interest

in a business.

(7) "Knowledge" means actual knowledge.

(8) "Person" means an individual, corporation, business

trust, estate, trust, partnership, limited liability company,

association, or joint venture; government, governmental

subdivision, agency, or instrumentality; public corporation; or

any other legal or commercial entity.

(9) "Record" means information that is inscribed on a

tangible medium or that is stored in an electronic or other

medium and is retrievable in perceivable form.

(10) "Summary disposition" means an expedited determination

without formal evidentiary hearings and does not mean summary

judgment as that term is defined in the Florida Rules of Civil

Procedure and cases decided thereunder.

Section 3. Section 682.503, Florida Statutes, is created to

read:

682.503 Application in general.--

(1) Except as otherwise provided in ss. 682.501-682.533,

the provisions of this act apply to consumer arbitration

agreements. Notwithstanding any provision of ss. 682.01-682.022

to the contrary, the provisions of ss. 682.01-682.022 do not

apply to any arbitration agreement to which ss. 682.501-682.533

apply.

(2) Sections 682.501-682.533 do not apply to insurance

policies made with a consumer, and every provision in any such

policy requiring arbitration or restricting a party or

beneficiary from enforcing any right under it by usual legal

proceedings or limiting the time to do so is void and

unenforceable.

(3) A provision for mandatory binding arbitration within

any arbitration agreement is void and unenforceable except to

the extent federal law provides for its enforceability.

Section 4. Section 682.504, Florida Statutes, is created to

read:

682.504 Effect of agreement to arbitrate; nonwaivable

provisions.--

(1) Except as otherwise provided in subsections (2) and

(3), a party to an agreement to arbitrate or to an arbitration

proceeding may waive, or the parties may vary the effect of, the

requirements of ss. 682.501-682.533 to the extent permitted by

law.

(2) Before a controversy arises that is subject to an

agreement to arbitrate, a party to the agreement may not:

(a) Waive or agree to vary the effect of the requirements

of s. 682.503, s. 682.508, s. 682.510, s. 682.511, s. 682.517(1)

and (2), s. 682.521, or s. 682.530; or

(b) Waive the right under s. 682.516 of a party to an

agreement to arbitrate to be represented by a lawyer at any

proceeding or hearing under ss. 682.501-682.533, but an employer

100

and a labor organization may waive the right to representation

101

by a lawyer in a labor arbitration.

102

(3) A party to an agreement to arbitrate or an arbitration

103

proceeding may not waive, or the parties may not vary the effect

104

of, the requirements of this section, s. 682.503(1) or (3), s.

105

682.506, s. 682.518, s. 682.20, s. 682.522, s. 682.523, s.

106

682.524, s. 682.525, or s. 682.531, except that, if there is an

107

agreement to arbitrate disputes over insurance obligations by

108

two or more people engaged in the business of insurance,

109

including, but not limited to, reinsurers, self-insurers, or

110

reinsurance intermediaries, or any combination thereof, the

111

parties to the agreement may waive the right to vacate under s.

112

682.523.

113

(4) A party to an agreement to arbitrate or to an

114

arbitration proceeding may not narrow the grounds for vacating

115

an award set forth in s. 682.523, except in a subsequent

116

agreement for consideration made after the controversy that is

117

at issue in the arbitration has arisen.

118

(5) A party to an agreement that submits to having, or

119

agrees to have, a court decide an issue subject to arbitration

120

has waived his or her right to arbitrate. This includes, but is

121

not limited to, initiating a suit or responding to a suit in any

122

manner other than by a motion to compel arbitration.

123

Section 5. Section 682.505, Florida Statutes, is created to

124

read:

125

682.505 Arbitration agreements made valid, irrevocable, and

126

enforceable; scope.--Two or more parties may agree in writing to

127

submit to arbitration any controversy existing between them at

128

the time of the agreement, or they may include in a written

129

contract a provision for the settlement by arbitration of any

130

controversy thereafter arising between them relating to such

131

contract or the failure or refusal to perform the whole or any

132

part thereof. This section also applies to written interlocal

133

agreements under ss. 163.01 and 373.1962 in which two or more

134

parties agree to submit to arbitration any controversy between

135

them concerning water use permit applications and other matters,

136

regardless of whether or not the water management district having

137

jurisdiction over the subject application is a party to the

138

interlocal agreement or a participant in the arbitration. Such

139

agreement or provision is valid, enforceable, and irrevocable

140

without regard to the justiciable character of the controversy.

141

Sections 682.501-682.533 do not apply to any such agreement or

142

provision to arbitrate in which it is stipulated that this act

143

does not apply or to any arbitration or award.

144

Section 6. Section 682.506, Florida Statutes, is created to

145

read:

146

682.506 Proceedings to compel and to stay arbitration.--

147

(1) A party to an agreement or provision for arbitration

148

which is subject to this act who claims the neglect or refusal

149

of another party to comply may make application to the court for

150

an order directing the parties to proceed with arbitration in

151

accordance with the terms thereof. If the court is satisfied

152

that no substantial issue exists as to the making of the

153

agreement or provision, it shall grant the application. If the

154

court finds that a substantial issue is raised as to the making

155

of the agreement or provision, it shall summarily hear and

156

determine the issue and, according to its determination, shall

157

grant or deny the application.

158

(2) If an issue referable to arbitration under an

159

agreement or provision for arbitration subject to this act

160

becomes involved in an action or proceeding pending in a court

161

having jurisdiction to hear an application under subsection (1),

162

such application shall be made in that court. Otherwise and

163

subject to s. 682.529, such application may be made in any court

164

of competent jurisdiction.

165

(3) Any action or proceeding involving an issue subject to

166

arbitration under this act shall be stayed if an order for

167

arbitration or an application has been made under this section

168

or, if the issue is severable, the stay may be with respect

169

thereto only. When the application is made in such action or

170

proceeding, the order for arbitration shall include such stay.

171

(4) On application, the court may stay an arbitration

172

proceeding commenced or about to be commenced if it finds that

173

no agreement or provision for arbitration subject to this act

174

exists between the party making the application and the party

175

causing the arbitration to be had. The court shall summarily

176

hear and determine the issue of the making of the agreement or

177

provision and, according to its determination, shall grant or

178

deny the application.

179

(5) An order for arbitration may not be refused on the

180

ground that the claim in issue lacks merit or bona fides or

181

because any fault or grounds for the claim sought to be

182

arbitrated have not been shown.

183

Section 7. Section 682.507, Florida Statutes, is created to

184

read:

185

682.507 Notice.--

186

(1) Except as otherwise provided in ss. 682.501-682.533, a

187

person gives notice to another party by delivering notice to the

188

party's place of residence by certified or registered mail,

189

return receipt requested and obtained, or by in-hand delivery,

190

with notice of service of process.

191

(2) A person has notice if the person has knowledge of the

192

notice or has received actual notice.

193

Section 8. Section 682.508, Florida Statutes, is created to

194

read:

195

682.508 Initiation of arbitration.--Unless initiated by a

196

consumer, a person or entity initiates an arbitration proceeding

197

by giving notice in a record to the other parties to the

198

agreement to arbitrate by certified or registered mail, return

199

receipt requested and obtained, or by service as authorized for

200

the commencement of a civil action. The notice must describe the

201

nature of the controversy and the remedy sought.

202

Section 9. Section 682.509, Florida Statutes, is created to

203

read:

204

682.509 Appointment of arbitrators by court.--

205

(1) The parties shall select the arbitrator after the

206

arbitration has been initiated. If the parties are unable to

207

come to an agreement, the court shall appoint one or more

208

arbitrators or an umpire deemed by both parties to be

209

acceptable. An arbitrator or umpire so appointed shall have like

210

powers as if named or provided for in the agreement or

211

provision.

212

(2) An individual may not serve as an arbitrator if the

213

individual has, at the time of arbitration or at some time in

214

the past, a direct and material interest in the outcome of the

215

arbitration proceeding, an existing relationship with a party,

216

or any other interest more than a de minimis interest which

217

could be affected by the proceeding.

218

(3) An individual may not serve as an arbitrator if the

219

arbitration service through which the individual has been

220

contracted has an interest, direct or indirect, in the outcome

221

of the arbitration.

222

Section 10. Section 682.511, Florida Statutes, is created

223

to read:

224

682.511 Disclosure by arbitrator.--

225

(1) Before accepting appointment, an individual who is

226

requested to serve as an arbitrator, after making a reasonable

227

inquiry, shall disclose to all parties to the agreement to

228

arbitrate and the arbitration proceeding and to any other

229

arbitrators involved in the proceedings any facts that might

230

affect, or appear to affect, the impartiality of the arbitrator

231

in the arbitration proceeding, including:

232

(a) Any financial or personal interest in the outcome of

233

the arbitration proceeding.

234

(b) Any existing or past relationship with any of the

235

parties to the agreement to arbitrate or the arbitration

236

proceeding, their counsel or representatives, a witness, or

237

other arbitrators, including the number of past arbitrations

238

conducted involving either party, the outcomes of those past

239

arbitrations, and the dates of decision.

240

(2) The parties must be informed that information

241

concerning the arbitration service provider's past cases is

242

available in a hard copy or on the provider's website.

243

(3) An arbitrator has a continuing obligation to disclose

244

to all parties to the agreement to arbitrate and the arbitration

245

proceeding and to any other arbitrators involved in the

246

proceeding any facts that the arbitrator learns after accepting

247

appointment which might affect, or appear to affect, the

248

impartiality of the arbitrator, including, but not limited to,

249

the information or facts required to be disclosed under

250

subsection (1).

251

(4) If an arbitrator discloses a fact as required by

252

subsection (1) or subsection (3) and a party timely objects to

253

the appointment or continued service of the arbitrator based

254

upon the fact disclosed, the objection may be grounds for

255

removal of the arbitrator or for vacating an award made by the

256

arbitrator under s. 682.520.

257

(5) If the arbitrator did not disclose a fact as required

258

by subsection (1) or subsection (3), upon timely objection by a

259

party, the party may make a motion to the court for an expedited

260

order to remove the arbitrator and appoint a successor. Failure

261

of an arbitrator to make such disclosure is cause for the court

262

to vacate an award under s. 682.523.

263

(6) An arbitrator appointed as a neutral arbitrator who

264

fails to comply with any of the disclosure requirements of this

265

section is presumed to have acted with evident partiality under

266

s. 682.523(1)(b).

267

(7) If circumstances do not exist which would affect the

268

impartiality of any designated arbitrator, such arbitrator shall

269

sign an oath provided by the court affirming the absence of such

270

present or preexisting ties.

271

Section 11. Section 682.512, Florida Statutes, is created

272

to read:

273

682.512 Consolidation of separate arbitration

274

proceedings.--

275

(1) Except as otherwise provided in subsection (2), upon

276

motion of a party to an agreement to arbitrate or to an

277

arbitration proceeding, the court shall order consolidation of

278

separate arbitration proceedings as to all or some of the claims

279

if:

280

(a) There are separate agreements to arbitrate or separate

281

arbitration proceedings between the same persons or one of them

282

is a party to a separate agreement to arbitrate or a separate

283

arbitration proceeding with a third person.

284

(b) The claims subject to the agreements to arbitrate

285

arise in substantial part from the same transaction or series of

286

related transactions.

287

288

the possibility of conflicting decisions in the separate

289

arbitration proceedings.

290

(d) Prejudice resulting from a failure to consolidate is

291

not outweighed by the risk of undue delay or prejudice to the

292

rights of or hardship to parties opposing consolidation.

293

(2) The court may order consolidation of separate

294

arbitration proceedings as to some claims and allow other claims

295

to be resolved in separate arbitration proceedings.

296

(3) This section does not prevent a party's participation

297

in a class action lawsuit.

298

Section 12. Section 682.513, Florida Statutes, is created

299

to read:

300

682.513 Majority action by arbitrators.--The powers of the

301

arbitrators shall be exercised by a majority of their number, but

302

all of them shall conduct the hearing under s. 682.514.

303

Section 13. Section 682.514, Florida Statutes, is created

304

to read:

305

682.514 Arbitration process.--

306

(1) An arbitrator must conduct an arbitration in a manner

307

that is fundamentally fair. "Fundamental fairness" includes

308

notice, an opportunity to be heard, an opportunity to present

309

relevant and material evidence, an opportunity for argument

310

before the decisionmakers, and an unbiased decisionmaker.

311

(2) The authority conferred upon the arbitrator includes

312

the power to hold conferences with the parties to the

313

arbitration proceeding before the hearing and, among other

314

matters, determine the admissibility, relevance, materiality,

315

and weight of any evidence in accordance with the Florida Rules

316

of Evidence and the Florida Rules of Civil Procedure. The

317

parties to an arbitration proceeding may, after the arbitration

318

has been instituted, stipulate in writing to apply arbitration

319

rules that vary from the Florida Rules of Evidence and the

320

Florida Rules of Civil Procedure.

321

(3) Unless after a dispute arises both parties settle the

322

dispute or in cases of extreme hardship, both parties or their

323

attorneys must be physically present at all hearings and

324

conferences with the arbitrator.

325

(4) An arbitrator may decide a request for summary

326

disposition of a claim or particular issue:

327

(a) If all interested parties agree to permit summary

328

disposition of the issue; or

329

(b) Upon request of one party to the arbitration

330

proceeding if that party gives actual, written notice to all

331

other parties to the proceeding in the manner provided in s.

332

682.505, and the other parties have been given 30 days to

333

respond after receiving such notice.

334

Section 14. Section 682.515, Florida Statutes, is created

335

to read:

336

682.515 Hearing.--Unless otherwise provided by the

337

agreement or provision for arbitration:

338

(1)(a) The arbitrators shall appoint a time and place for

339

the hearing and cause notification to the parties to be served

340

personally or by registered or certified mail not less than 30

341

days before the initial hearing, and not less than 10 days for

342

any subsequent hearings. Notice shall include a statement that a

343

party is entitled to representation. Appearance at the hearing

344

does not waive a party's right to object to the proceeding on

345

the basis of insufficient notice or lack of notice. The

346

arbitrators may adjourn the hearing from time to time upon their

347

own motion and shall do so upon the request of any party to the

348

arbitration for good cause shown. An adjournment or postponement

349

of the hearing may not extend beyond the date fixed in the

350

agreement or provision for making the award unless the parties

351

consent to a later date. An umpire authorized to hear and decide

352

the cause upon failure of the arbitrators to agree upon an award

353

shall, in the course of his or her jurisdiction, have like

354

powers and be subject to like limitations thereon.

355

(b) The arbitrators, or umpire in the course of his or her

356

jurisdiction, may hear and decide the controversy upon the

357

evidence produced notwithstanding the failure or refusal of a

358

party duly notified of the time and place of the hearing to

359

appear. The court on application may direct the arbitrators, or

360

the umpire in the course of his or her jurisdiction, to proceed

361

promptly with the hearing and making of the award.

362

(2) The parties are entitled to be heard, to present

363

evidence material to the controversy, and to cross-examine

364

witnesses appearing at the hearing in accordance with the

365

Florida Rules of Evidence and the Florida Rules of Civil

366

Procedure unless otherwise stipulated by the parties after the

367

cause of action has arisen and the arbitration proceeding has

368

been instituted.

369

(3) The hearing shall be conducted by all of the

370

arbitrators, but a majority may determine any question and render

371

a final award. An umpire authorized to hear and decide the cause

372

upon the failure of the arbitrators to agree upon an award shall

373

sit with the arbitrators throughout the hearing, but may not be

374

counted as a part of the quorum or in the making of the award.

375

If, during the course of the hearing, an arbitrator for any

376

reason ceases to act, a replacement arbitrator must be appointed

377

in accordance with s. 682.507 to continue the proceeding and to

378

resolve the controversy.

379

Section 15. Section 682.516, Florida Statutes, is created

380

to read:

381

682.516 Representation by attorney.--A party has the right

382

to be represented by an attorney at any arbitration proceeding

383

or hearing under this act. A waiver prior to the proceeding or

384

hearing is ineffective. The parties to an arbitration must be

385

provided with information concerning institutions that might

386

offer assistance, such as bar associations, legal service

387

associations, civil rights organizations, and trade unions.

388

Section 16. Section 682.517, Florida Statutes, is created

389

to read:

390

682.517 Witnesses, subpoenas, depositions, discovery.--

391

(1) An arbitrator, or an umpire authorized to hear and

392

decide the cause upon failure of the arbitrators to agree upon

393

an award, in the course of his or her jurisdiction, may issue

394

subpoenas for the attendance of witnesses and for the production

395

of books, records, documents, and other evidence, and shall have

396

the power to administer oaths. Subpoenas so issued shall be

397

served, and upon application to the court by a party to the

398

arbitration, the arbitrators, or the umpire, enforced in the

399

manner provided by law for the service and enforcement of

400

subpoenas in a civil action. The issuance of a subpoena must be

401

included in the record of the arbitration.

402

(2) On application of a party to the arbitration and for

403

use as evidence, the arbitrators or the umpire in the course of

404

his or her jurisdiction, may permit a deposition to be taken, in

405

the manner and upon the terms designated by them or him or her

406

of a witness who cannot be subpoenaed or is unable to attend the

407

hearing. Any deposition must be conducted in the manner provided

408

by the Florida Rules of Civil Procedure. A copy of every

409

deposition given by a witness called to testify during the

410

arbitration must be filed and included in the record of the

411

arbitration.

412

(3) Discovery shall be conducted in a manner consistent

413

with the Florida Rules of Civil Procedure and general law.

414

(4) A party to an arbitration may petition an arbitrator

415

to permit additional discovery, as provided by the Florida Rules

416

of Civil Procedure and consistent with general law, as the

417

arbitrator decides is appropriate in the circumstances, taking

418

into account the needs of the parties to the arbitration

419

proceeding and other affected persons and the desirability of

420

making the proceeding fair, expeditious, and cost effective.

421

(5) The arbitrator may order a party to the arbitration

422

proceeding to comply with the arbitrator's discovery-related

423

orders, issue subpoenas for the attendance of a witness and for

424

the production of records and other evidence at a discovery

425

proceeding, and take action against a noncomplying party to the

426

extent a court could if the controversy were the subject of a

427

civil action in this state.

428

(6) An arbitrator may issue only a protective order to

429

prevent the disclosure of privileged information, confidential

430

information, and trade secrets and only under circumstances in

431

which a court could issue a protective order if the arbitrator

432

makes a finding on the record that any public interest in

433

disclosure of information relevant to the protection of public

434

health and safety is outweighed by a specific and substantial

435

harm that would result from disclosure.

436

(7) All provisions of law compelling a person under

437

subpoena to testify apply.

438

(8) The court may enforce a subpoena or discovery-related

439

order for the attendance of a witness within the state and for

440

the production of records and other evidence issued by an

441

arbitrator considered by an arbitrator in connection with an

442

arbitration proceeding in another state and consistent with the

443

laws of the jurisdiction. A subpoena or discovery-related order

444

issued by an arbitrator in another state must be served in the

445

manner provided by law for service of subpoenas in a civil

446

action in the state and, upon motion to the court by a party to

447

the arbitration proceeding or the arbitrator, enforced in the

448

manner provided by law for enforcement of subpoenas in a civil

449

action in the state.

450

(9) All witnesses must be under oath during testimony,

451

including testimony given during a deposition.

452

(10) Fees for attendance as a witness shall be the same as

453

for a witness in the circuit court.

454

(11) All materials produced, generated, considered, or in

455

any way referenced as part of an arbitration proceeding shall be

456

maintained by the arbitration company and accessible by any

457

consumer seeking information as to the arbitration company for 10

458

years after the arbitration proceeding has been fully and finally

459

concluded, including the expiration of all appeals, if any.

460

Section 17. Section 682.518, Florida Statutes, is created

461

to read:

462

682.518 Judicial enforcement of preaward ruling.--A party

463

may request the arbitrator to incorporate any preaward ruling in

464

favor of a party to the arbitration proceeding into an award made

465

pursuant to s. 682.519. The court shall issue an order to confirm

466

the award unless the court vacates, modifies, or corrects the

467

award under ss. 682.523 and 682.524.

468

Section 18. Section 682.519, Florida Statutes, is created

469

to read:

470

682.519 Award.--

471

(1) The award shall be in writing and shall contain a

472

summary and findings of the issues raised and the damages

473

awarded. The award shall be signed by the arbitrators joining in

474

the award or by the umpire in the course of his or her

475

jurisdiction. A copy of the award shall be delivered to each

476

party to the arbitration personally or by registered or

477

certified mail.

478

(2) An award shall be made within the time fixed by the

479

agreement or provision for arbitration or, if not so fixed,

480

within such time as the court may order on application of a

481

party to the arbitration. The parties may, by written agreement,

482

extend the time before or after the expiration thereof. Any

483

objection that an award was not made within the time required is

484

waived unless the objecting party notifies the arbitrators or

485

umpire in writing of his or her objection before the delivery of

486

the award to him or her.

487

(3) The written opinion, including all evidence required to

488

be filed under this act and the opinion and award, shall be

489

entered into the court record by filing with the clerk of the

490

court having jurisdiction over the arbitration at such time as

491

entry of judgment is sought. If a court file has not been

492

previously opened, the party seeking entry of judgment shall pay

493

the applicable filing fee and file the documents specified in

494

this section prior to entry of judgment.

495

Section 19. Section 682.520, Florida Statutes, is created

496

to read:

497

682.520 Change of award by arbitrators or umpire.--On

498

application of a party to the arbitration, or if an application

499

to the court is pending under s. 682.522, s. 682.523, or s.

500

682.524, on submission to the arbitrators, or to the umpire in

501

the case of an umpire's award, by the court under such

502

conditions as the court may order, the arbitrators, or umpire

503

may modify or correct the award upon the grounds stated in s.

504

682.24(1)(a) and (c) or for the purpose of clarifying the award.

505

The application shall be made within 20 days after delivery of

506

the award to the applicant. Written notice shall be given to the

507

other party to the arbitration, stating that he or she must

508

serve his or her objections, if any, within 10 days after the

509

notice. The award so modified or corrected is subject to the

510

provisions of ss. 682.22-682.24.

511

Section 20. Section 682.521, Florida Statutes, is created

512

to read:

513

682.521 Remedies; fees and expenses of arbitration.--

514

(1) An arbitrator may award punitive damages or other

515

exemplary relief to the extent that he or she would be

516

authorized by law in a civil action involving the same claim and

517

the evidence produced at the hearing justifies the award under

518

the legal standards otherwise applicable to the claim.

519

(2) Unless otherwise agreed to by the parties to the

520

arbitration after the dispute has arisen and the arbitration

521

proceeding instituted, the circuit court shall establish the

522

amount of compensation, if any, that each arbitrator or umpire

523

shall receive for services rendered in each case. The

524

arbitrators' and umpire's expenses and fees, together with other

525

expenses incurred in the conduct of the arbitration, shall be

526

reasonable and paid as provided in the award.

527

(3) An arbitrator shall award reasonable attorney's fees

528

and other reasonable expenses of arbitration to the extent

529

authorized by law in a civil claim involving the same claim or

530

by the agreement of the parties to the arbitration proceeding.

531

(4) Upon a showing by the consumer, evidenced by an

532

affidavit that includes a statement of financial resources

533

possessed by the consumer, that the consumer is unable to pay

534

the costs of arbitration, the court may order such costs to be

535

shared between the two parties in an equitable manner. A

536

nonconsumer may be ordered to pay the entire cost of an

537

arbitration when continuing the arbitration proceeding would

538

create a financial hardship due to a consumer's lack of

539

financial resources. This subsection does not apply to any

540

voluntary arbitration proceeding begun by joint stipulation of

541

the parties after a lawsuit has been instituted or conducted

542

pursuant to s. 44.104.

543

(5) If an arbitrator awards punitive damages or other

544

exemplary relief under subsection (1), the arbitrator shall

545

specify in the award the basis in fact justifying and the basis

546

in law authorizing the award and state separately the amount of

547

the punitive damages or other exemplary relief.

548

Section 21. Section 682.522, Florida Statutes, is created

549

to read:

550

682.522 Confirmation of an award.--After a party to an

551

arbitration proceeding receives notice of an award and upon

552

application of a party to the arbitration, the court shall

553

confirm an award, unless within the time limits hereinafter

554

imposed grounds are urged for vacating or modifying or

555

correcting the award, in which case the court shall proceed as

556

provided in ss. 682.523 and 682.524.

557

Section 22. Section 682.523, Florida Statutes, is created

558

to read:

559

682.523 Vacating an award.--

560

(1) Upon application of a party, the court shall vacate an

561

award when:

562

(a) The award was procured by corruption, fraud, or other

563

undue means.

564

(b) There was evident partiality by an arbitrator

565

appointed as a neutral arbitrator, corruption in any of the

566

arbitrators or umpire, or misconduct prejudicing the rights of

567

any party.

568

569

her jurisdiction exceeded their powers. Partiality may be

570

demonstrated by the appearance of bias if bias is apparent based

571

upon established facts. Such facts are not limited to those

572

facts disclosed by the arbitrator or arising during the course

573

of the arbitration. The mere nondisclosure of facts that

574

demonstrate potential arbitrator bias creates a presumption of

575

partiality.

576

(d) The arbitrators or the umpire in the course of his or

577

her jurisdiction refused to postpone the hearing upon sufficient

578

cause being shown therefor, refused to hear evidence material to

579

the controversy, or otherwise so conducted the hearing contrary

580

to the provisions of s. 682.515 so as to prejudice substantially

581

the rights of a party.

582

(e) There was not an agreement or provision for

583

arbitration subject to this act, unless the matter was

584

determined in proceedings under s. 682.506 and unless the party

585

participated in the arbitration hearing without raising the

586

objection.

587

(f) The arbitration was conducted without proper notice of

588

the initiation of any stage of arbitration as required pursuant

589

to s. 682.512 so as to substantially prejudice the rights of a

590

party to the arbitration proceeding.

591

(g) The arbitration award is inconsistent with applicable

592

law.

593

(h) The arbitration award violates public policy.

594

(i) The arbitration award is arbitrary and capricious or

595

lacks a rational basis.

596

(j) The arbitration award is not supported by substantial

597

evidence on the record as a whole.

598

599

The fact that the relief was such that it could not or would not

600

be granted by a court of law or equity is not ground for

601

vacating or refusing to confirm the award.

602

(2) In addition to the grounds to vacate an award under

603

subsection (1), the parties may contract in the arbitration

604

agreement for judicial review of errors of law in the

605

arbitration award. If the parties have so contracted, the court

606

shall vacate the award if the arbitrator has committed an error

607

of law substantially prejudicing the rights of a party.

608

(3) An application under this section shall be made within

609

90 days after delivery of a copy of the award to the applicant,

610

except that, if predicated upon corruption, fraud, or other

611

undue means, it shall be made within 90 days after such grounds

612

are known or should have been known. A court may extend any time

613

limitation in this subsection upon a showing of good cause.

614

(4) In vacating the award on grounds other than those

615

stated in paragraph (1)(e), the court may order a rehearing

616

before new arbitrators chosen as provided in the agreement or

617

provision for arbitration or by the court in accordance with s.

618

682.509, or, if the award is vacated on grounds other than those

619

provided in paragraphs (1)(a) and (e), the court may order a

620

rehearing before the arbitrators or umpire who made the award or

621

their successors appointed in accordance with s. 682.509. The

622

time within which the agreement or provision for arbitration

623

requires the award to be made applies to the rehearing and

624

commences on the date of the order.

625

(5) If the application to vacate is denied and no motion to

626

modify or correct the award is pending, the court shall confirm

627

the award.

628

Section 23. Section 682.524, Florida Statutes, is created

629

to read:

630

682.524 Modification or correction of award.--

631

(1) Upon application made within 90 days after delivery of

632

a copy of the award to the applicant, the court shall modify or

633

correct the award when:

634

(a) There is an evident miscalculation of figures or an

635

evident mistake in the description of any person, thing, or

636

property referred to in the award.

637

(b) The arbitrators or umpire have made an award upon a

638

matter not submitted to them or him or her and the award may be

639

corrected without affecting the merits of the decision upon the

640

issues submitted.

641

642

affecting the merits of the controversy.

643

(2) If the application is granted, the court shall modify

644

and correct the award so as to effect its intent and shall

645

confirm the award as modified and corrected. Otherwise, the

646

court shall confirm the award as made.

647

(3) An application to modify or correct an award may be

648

joined in the alternative with an application to vacate the

649

award.

650

(4) Irrespective of the periods established under this

651

section and s. 682.523, a consumer may also seek to modify or

652

vacate an award issued pursuant to a consumer arbitration

653

agreement within 30 days after receiving notice of a motion to

654

confirm the award.

655

Section 24. Section 682.525, Florida Statutes, is created

656

to read:

657

682.525 Judgment or decree on award.--Upon the granting of

658

an order confirming, vacating without directing a rehearing,

659

modifying, or correcting an award, the judgment or decree shall

660

be entered in conformity therewith and be enforced as any other

661

judgment or decree. The judgment may be recorded, docketed, and

662

enforced as any other judgment in a civil action. Costs of the

663

application and of the proceedings subsequent thereto and

664

disbursements may be awarded by the court.

665

Section 25. Section 682.526, Florida Statutes, is created

666

to read:

667

682.526 Judgment roll, docketing.--

668

(1) On entry of judgment or decree, the clerk shall

669

prepare the judgment roll consisting, to the extent filed, of

670

the following:

671

(a) The agreement or provision for arbitration and each

672

written extension of the time within which to make the award;

673

(b) The award;

674

675

correcting the award; and

676

(d) A copy of the judgment or decree.

677

(2) The judgment or decree may be docketed as if rendered

678

in a civil action.

679

Section 26. Section 682.527, Florida Statutes, is created

680

to read:

681

682.527 Application to the court.--Except as otherwise

682

provided, an application to the court under this act shall be by

683

motion and shall be heard in the manner and upon the notice

684

provided by law or rule of court for the making and hearing of

685

motions. Unless the parties have agreed otherwise, notice of an

686

initial application for an order shall be served in the manner

687

provided by law for the service of a summons in an action.

688

Section 27. Section 682.528, Florida Statutes, is created

689

to read:

690

682.528 Court; definition; jurisdiction.--

691

(1) The term "court" means any court of competent

692

jurisdiction of this state. The making of an agreement or

693

provision for arbitration subject to this act and providing for

694

arbitration in this state shall, whether made within or outside

695

this state, confer jurisdiction on the court to enforce the

696

agreement or provision under this act, to enter judgment on an

697

award duly rendered in an arbitration thereunder, and to vacate,

698

modify, or correct an award rendered thereunder for such cause

699

and in the manner provided in this act.

700

(2) Any judgment entered upon an award by a court of

701

competent jurisdiction of any state, territory, the Commonwealth

702

of Puerto Rico, or foreign country shall be enforceable by

703

application as provided in s. 682.527 and regardless of the time

704

when the award may have been made.

705

Section 28. Section 682.529, Florida Statutes, is created

706

to read:

707

682.529 Venue.--Any application under this act may be made

708

to the court of the county in which the other party to the

709

agreement or provision for arbitration resides or has a place of

710

business, or, if she or he has no residence or place of business

711

in this state, to the court of any county. All applications under

712

this act subsequent to an initial application shall be made to

713

the court hearing the initial application unless it orders

714

otherwise.

715

Section 29. Section 682.530, Florida Statutes, is created

716

to read:

717

682.530 Appeals.--

718

(1) An appeal may be taken from the arbitration to a court

719

having proper jurisdiction upon:

720

(a) An order denying or granting an application to compel

721

arbitration made under s. 682.506.

722

(b) An order granting an application to stay arbitration

723

made under s. 682.506(2)-(4).

724

725

conflict on the part of the arbitrator.

726

(d) An evidentiary ruling, except as provided in paragraph

727

(2)(a), after final award or decision.

728

(2) The following rules may be reviewed by writ of

729

certiorari:

730

(a) A ruling concerning evidentiary privileges or

731

confidentiality rights of the parties.

732

(b) A grant of a protective order preventing the

733

disclosure of privileged information, confidential information,

734

or trade secrets under s. 682.517.

735

(3) An appeal may be taken from a circuit or county court

736

to a court of appeals on the basis of any decision made in

737

subsection (1) or subsection (2) and upon:

738

(a) An order confirming or denying confirmation of an

739

award;

740

(b) An order modifying or correcting an award;

741

742

rehearing; or

743

(d) A judgment or decree entered pursuant to the

744

provisions of ss. 682.501-682.533.

745

(4) The appeal or petition for certiorari shall be taken

746

in the manner and to the same extent as from orders or judgments

747

in a civil action.

748

Section 30. Section 682.531, Florida Statutes, is created

749

to read:

750

682.531 Relationship to Electronic Signatures in Global and

751

National Commerce Act.--Sections 682.501-682.533 modify, limit,

752

and supersede the federal Electronic Signatures in Global and

753

National Commerce Act, 15 U.S.C. ss. 7001 et. seq., but do not

754

modify, limit, or supersede s. 101(c) of that act or authorize

755

electronic delivery of any of the notices described in s. 103(b)

756

of that act.

757

Section 31. Section 682.532, Florida Statutes, is created

758

to read:

759

682.532 Regulation of arbitration service providers.--

760

(1) Any arbitration organization that administers or is

761

otherwise involved in 10 or more consumer arbitrations a year

762

shall collect, publish at least quarterly, and make available to

763

the public in a searchable, sortable, and downloadable computer

764

database that permits searching using multiple search terms in

765

the same search all of the information in paragraphs (a)-(i)

766

regarding each consumer arbitration within the preceding 5

767

years. Such information shall be prominently displayed,

768

accessible, and easily comprehensible to an ordinary user who

769

has ordinary knowledge of computer databases, at the Internet

770

website of the private arbitration organization, and on paper

771

upon request:

772

(a) The name of any corporation or other business entity

773

that is party to the arbitration.

774

(b) The type and subject matter of the transaction that

775

gave rise to the dispute involved, including, but not limited

776

to, goods, banking, insurance, health care, debt collection,

777

employment, and, if it involves employment, the amount of the

778

employee's annual wage divided into the following ranges:

779

1. Less than $100,000.

780

2. From $100,000 to $250,000, inclusive.

781

3. More than $250,000.

782

783

(d) The number of occasions, if any, that a corporation or

784

business entity that is a party to an arbitration has previously

785

been a party in an arbitration or mediation administered by the

786

arbitration organization.

787

(e) Whether or not the consumer in each prior arbitration

788

was represented by an attorney and, if so, the identifying

789

information for that attorney, including the attorney's name,

790

law firm affiliation, business telephone number, and the address

791

of the attorney's law firm.

792

(f) The date the arbitration organization received the

793

demand for arbitration, the date the arbitrator was appointed,

794

and the date of disposition by the arbitrator or arbitration

795

organization.

796

(g) The type of disposition of the dispute, if known,

797

including withdrawal, abandonment, settlement, award after

798

hearing, award without hearing, default, or dismissal without

799

hearing.

800

(h) The amount of the claim, the amount of the award, and

801

any other relief granted.

802

(i) The name of the arbitrator, his or her fee for the

803

case, and the percentage of the arbitrator's fee allocated to

804

each party.

805

(2) If the required information is provided by the

806

arbitration organization in a computer-searchable format at the

807

company's Internet website and may be downloaded without any

808

fee, the company may charge the actual cost of copying to any

809

person who requests the information on paper. If the information

810

required is not accessible by the Internet, the company shall

811

provide that information without charge to any person who

812

requests the information on paper.

813

(3) All fees and costs charged to or assessed in the state

814

against a consumer by an arbitration organization in a consumer

815

arbitration shall be waived for any person having a gross

816

monthly income that is less than 500 percent of the poverty line

817

as defined in 42 U.S.C. s. 9902(2).

818

(4) Before requesting or obtaining any fee, an arbitration

819

organization shall provide written notice of the right to obtain

820

a waiver of fees in a manner calculated to bring the matter to

821

the attention of a reasonable consumer, including, but not

822

limited to, prominently placing a notice in its first written

823

communication to a consumer and in any invoice, bill, submission

824

form, fee schedule, rules, or code of procedure.

825

(5) Any person requesting a waiver of fees or costs may

826

establish eligibility by making a declaration under oath on a

827

form provided by the arbitration organization indicating the

828

person's monthly income and the number of persons living in the

829

household. An arbitration organization may not require a

830

consumer to provide any further statement or evidence of

831

indigence. The form and the information contained thereinis

832

confidential and may not be disclosed to any adverse party or

833

any nonparty to the arbitration.

834

(6) An arbitration organization may not keep confidential

835

the number of waiver requests received or granted, or the total

836

amount of fees waived, and must disclose all fees charged.

837

(7) An arbitrator or arbitration organization may not

838

administer an arbitration under any agreement or rule requiring

839

that a consumer who is a party to the arbitration pay the fees

840

and costs incurred by any opposing party if the consumer does

841

not prevail in the arbitration, including, but not limited to,

842

the fees and costs of the arbitrator, provider organization,

843

attorney, or witnesses.

844

(8) An arbitration organization may not administer a

845

consumer arbitration to be conducted in the state, or provide

846

any other services related to such a consumer arbitration, if:

847

(a) The arbitration organization has, or within the

848

preceding year has had, a financial interest in any party or

849

attorney for a party involved in the arbitration; or

850

(b) Any party or attorney for a party in the arbitration

851

has, or within the preceding year has had, any type of financial

852

interest in the arbitration organization.

853

(9) Any affected person or entity, including the Office of

854

the Attorney General, may request a court to enjoin an

855

arbitration organization from violating the provisions of this

856

section and order such restitution as appropriate. The

857

arbitration organization is liable for that person's or entity's

858

reasonable attorney's fees and costs if that person or entity

859

prevails or if, after the action is commenced, the arbitration

860

organization voluntarily complies with the section.

861

Section 32. Section 682.533, Florida Statutes, is created

862

to read:

863

682.533 Disclosure of arbitration costs.--

864

(1) A party drafting an arbitration agreement shall

865

clearly and conspicuously disclose in regard to any arbitration:

866

(a) The filing fee.

867

(b) The average daily cost for an arbitrator and hearing

868

room if the consumer elects to appear in person.

869

870

service provider will assess in conjunction with an arbitration

871

when the consumer appears in person.

872

(d) The proportion of these costs which each party bears

873

in the event that the consumer prevails and in the event that

874

the consumer does not prevail.

875

(2) The costs specified in subsection (1) need not include

876

attorney's fees and, to the extent that, with regard to the

877

disclosures required by subsection (1), a precise amount is not

878

known, the disclosures may be based on a reasonable, good faith

879

estimate. A party providing a reasonable, good faith cost

880

estimate is not liable if the actual costs of a particular

881

arbitration varies within reason from the estimate provided.

882

(3) Failure to provide disclosures pursuant to subsection

883

(1), constitutes a deceptive act pursuant to the Florida

884

Deceptive and Unfair Trade Practices Act. Further, the

885

information provided in the disclosure may be considered in a

886

determination of whether an arbitration agreement is

887

unconscionable or is otherwise not enforceable under law.

888

(4) Any person or entity, including the Office of the

889

Attorney General, may request a court to enjoin the drafting

890

party from violating the provisions of this section as to

891

agreements it enters into in the future. The drafting party is

892

liable to the person or entity bringing such an action for that

893

person or entity's reasonable attorney's fees and costs if the

894

court issues an injunction or if, after the action is commenced,

895

the drafting party voluntarily complies with the Florida

896

Deceptive and Unfair Trade Practices Act.

897

Section 33. This act shall take effect July 1, 2008.

898

899

================ T I T L E A M E N D M E N T ================

900

And the title is amended as follows:

901

Delete everything before the enacting clause

902

and insert:

903

A bill to be entitled

904

An act relating to arbitration; creating s. 682.501, F.S.;

905

providing a short title; creating s. 682.502, F.S.;

906

providing definitions; creating s. 682.503, F.S.;

907

providing that the act applies to consumer arbitration

908

agreements; providing that the Florida Consumer

909

Arbitration Act does not apply to certain insurance

910

policies; providing that mandatory binding arbitration is

911

void and unenforceable except as otherwise provided by

912

federal law; creating s. 682.504, F.S.; providing for the

913

effect of an arbitration agreement; prohibiting the waiver

914

of certain rights and requirements; providing an exception

915

to provisions prohibiting waiving the right of a court to

916

vacate an award; providing that an agreement to a court

917

decision constitutes a waiver of the right to arbitrate;

918

creating s. 682.505, F.S.; authorizing parties to agree to

919

arbitration of any controversy; providing for application

920

to written interlocal agreements; providing that the act

921

does not apply to certain agreements; creating s. 682.506,

922

F.S.; authorizing a party to comply with arbitration;

923

providing for a stay in arbitration proceedings; providing

924

circumstances in which an order of arbitration may not be

925

refused; creating s. 682.507, F.S.; specifying actions

926

that constitute notice; creating s. 682.508, F.S.;

927

providing procedures for initiating arbitration; creating

928

s. 682.509, F.S.; requiring that the court appoint

929

arbitrators if the parties do not agree on such selection;

930

prohibiting a person having an interest in the outcome of

931

the proceeding or an existing relationship with a party

932

from serving as an arbitrator; creating s. 682.511, F.S.;

933

requiring that an arbitrator disclose any facts that may

934

affect the impartiality of the proceeding; providing that

935

a financial or personal interest in the outcome of a

936

proceeding or an existing or past relationship with a

937

party constitutes grounds for removal of the arbitrator;

938

providing for the court to order the removal of the

939

arbitrator and appoint a successor; providing that failure

940

to disclose an interest in the outcome of a proceeding or

941

to disclose a relationship with a party is evidence of

942

partiality; creating s. 682.512, F.S.; providing for the

943

consolidation of separate arbitration proceedings;

944

authorizing the court to consolidate some claims and allow

945

other claims to be resolved separately; creating s.

946

682.513, F.S.; providing that the powers of the

947

arbitrators is exercised by the majority of their number;

948

creating s. 682.514, F.S.; providing procedures for an

949

arbitration proceeding; requiring that all parties be

950

physically present except in certain cases; providing for

951

a summary disposition of a claim or particular issue;

952

creating s. 682.515, F.S.; providing for requirements for

953

conducting the arbitration hearing; creating s. 682.516,

954

F.S.; providing that a party has a right to be represented

955

by an attorney at an arbitration proceeding; requiring

956

that the parties receive information concerning available

957

assistance; creating s. 682.517, F.S.; authorizing an

958

arbitrator to issue subpoenas for the attendance of

959

witnesses and production of documents and to permit

960

depositions; requiring that a subpoena be included in the

961

record of the arbitration; providing for dispositions to

962

be conducted under the Florida Rules of Civil Procedure;

963

providing for additional discovery, the issuance of

964

subpoenas, and other orders; authorizing a arbitrator to

965

issue a protective order under limited circumstances;

966

providing for a subpoena or order to be enforced by a

967

court; requiring that witnesses testify under oath;

968

providing for witness fees; requiring the arbitration

969

company to maintain all materials pertaining to an

970

arbitration proceeding for a specified period of time;

971

creating s. 682.518, F.S.; providing for judicial

972

enforcement of a preaward ruling; creating s. 682.519,

973

F.S.; providing certain requirements for issuing an

974

arbitration award; requiring the award contain findings

975

and damages or other relief; requiring that the award and

976

written opinion be entered into the court of record;

977

creating s. 682.520, F.S.; authorizing the arbitrators or

978

umpire to modify or correct an arbitration award; creating

979

s. 682.521, F.S.; authorizing an arbitrator to award

980

punitive damages; requiring the circuit court to establish

981

the amount of compensation for arbitrators and an umpire;

982

providing certain limitations on expenses and fees;

983

authorizing an arbitrator to award attorney's fees and

984

other expenses of arbitration; authorizing the court to

985

order that the costs of arbitration be shared among the

986

parties; requiring an arbitrator to specify the basis in

987

fact and in law authorizing an award for punitive damages;

988

creating s. 682.522, F.S.; requiring the court to confirm

989

an award; creating s. 682.523, F.S.; circumstances under

990

which a court may vacate an award; authorizing the parties

991

to an arbitration to contract for judicial review of

992

errors of law in the award; providing for application for

993

which a court may vacate an award; authorizing the court

994

to conduct a rehearing for the vacating of an award under

995

certain circumstances; creating s. 682.524, F.S.;

996

authorizing the court to modify or correct an award;

997

requiring that a consumer seek to modify or vacate an

998

award issued under a consumer arbitration agreement within

999

a specified period; creating s. 682.525, F.S; providing

1000

for the recording and enforcement of an award; creating s.

1001

682.526, F.S.; providing requirements for the court clerk

1002

to follow when preparing the judgment roll; creating s.

1003

682.527, F.S.; providing requirements for an application

1004

to the court with regard to arbitration; creating s.

1005

682.528, F.S.; providing the definition to the term

1006

"court"; providing for the court's jurisdiction; creating

1007

s. 682.529, F.S.; providing for venue; creating s.

1008

682.530, F.S.; providing for an appeal from an

1009

arbitration; providing rules that may be reviewed by writ

1010

of certiorari; providing additional circumstances under

1011

which an arbitration decision may be appealed; creating s.

1012

682.531, F.S.; specifying that the act modifies, limits,

1013

and supersedes certain provisions of federal law; creating

1014

s. 682.532, F.S.; requiring that certain arbitration

1015

organizations make information available to the public

1016

concerning the type and number of disputes it handles;

1017

requiring that such information be provided free of

1018

charge; requiring that an arbitration organization waive

1019

the fees for low-income persons involved in a consumer

1020

arbitration; requiring that an arbitration organization

1021

provide notice of the right to such waiver; requiring a

1022

declaration of oath of indigency; prohibiting an

1023

arbitration organization from keeping confidential the

1024

number of waiver requests received or granted or the total

1025

amount of fees waived; requiring the arbitration

1026

organization to disclose all fees charged; prohibiting an

1027

arbitrator or arbitration organization from requiring a

1028

consumer to pay the fees and costs incurred by an opposing

1029

party; providing that an arbitration organization may not

1030

administer a consumer arbitration under certain

1031

circumstances; authorizing a person or entity to request a

1032

court to enjoin an arbitration organization from violating

1033

provisions of the act and order restitution; providing

1034

that the arbitration organization is liable for such

1035

person's or entity's reasonable attorney's fees and costs

1036

under certain circumstances; creating s. 682.533, F.S.;

1037

requiring that a party drafting an arbitration agreement

1038

disclose filing fees and costs; providing that failure to

1039

make such disclosures constitutes a deceptive and unfair

1040

trade practice; providing for enforcement of such

1041

provision by injunction; providing for application of the

1042

act; providing an effective date.

3/24/2008 6:54:00 PM 30-05533-08

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