Florida Senate - 2008 SB 2076

By Senator Deutch

30-02752-08 20082076__

A bill to be entitled

An act relating to arbitration; creating s. 682.011, F.S.;

providing definitions; creating s. 682.012, F.S.; providing

that ch. 682, F.S., the Florida Arbitration Code, does not

apply to certain insurance policies; providing that

mandatory binding arbitration is void and unenforceable

except as otherwise provided by federal law; creating s.

682.013, F.S.; providing for the effect of an arbitration

agreement; prohibiting the waiver of certain rights and

requirements; providing an exception to provisions

prohibiting waiving the right of a court to vacate an

award; providing that an agreement to a court decision

constitutes a waiver of the right to arbitrate; creating s.

682.031, F.S.; specifying actions that constitute notice;

creating s. 682.032, F.S.; providing procedures for

initiating arbitration; amending s. 682.04, F.S.; requiring

that the court appoint arbitrators if the parties do not

agree on such selection; prohibiting a person having an

interest in the outcome of the proceeding from serving as

an arbitrator; creating s. 682.041, F.S.; authorizing the

court to enter an order for provisional remedies; creating

s. 682.042, F.S.; requiring that an arbitrator disclose any

facts that may affect the impartiality of the proceeding;

providing that a financial or personal interest in the

outcome of a proceeding or an existing or past relationship

with a party constitutes grounds for removal of the

arbitrator; providing for the court to order the removal of

the arbitrator and appoint a successor; providing that

failure to disclose an interest in the outcome of a

proceeding or to disclose a relationship with a party is

evidence of partiality; requiring that an arbitrator sign

an oath affirming the absence of certain ties; creating s.

682.043, F.S.; providing for the consolidation of separate

arbitration proceedings; authorizing the court to

consolidate some claims and allow other claims to be

resolved separately; amending s. 682.05, F.S.; requiring

that all arbitrators to a proceeding conduct certain

hearings; creating s. 682.052, F.S.; providing procedures

for an arbitration proceeding; requiring that all parties

be physically present except in certain cases; providing

for a summary disposition of a claim or particular issue;

amending s. 682.06, F.S.; revising requirements for

conducting the hearing; requiring notice of the right to

representation; amending s. 682.07, F.S.; requiring that

the parties receive information concerning available

assistance; amending s. 682.08, F.S.; requiring that a

subpoena be included in the record of the arbitration;

providing for dispositions to be conducted under the

Florida Rules of Civil Procedure; providing for additional

discovery, the issuance of subpoenas, and other orders;

authorizing a arbitrator to issue a protective order under

limited circumstances; providing for a subpoena or order to

be enforced by a court; requiring that witnesses testify

under oath; creating s. 682.085, F.S.; providing for

judicial enforcement of a preaward ruling; amending s.

682.09, F.S.; requiring the award contain findings and

damages or other relief; requiring that the award be made a

public record; amending s. 682.11, F.S.; providing certain

limitations on expenses and fees; providing for an award of

attorney's fees and other expenses of arbitration;

authorizing the court to order that the costs of

arbitration be shared among the parties; amending s.

682.12, F.S.; providing for confirmation of an award by the

court; amending s. 682.13, F.S.; providing additional

circumstances under which a court may vacate an award;

authorizing the parties to an arbitration to contract for

judicial review of errors of law in the award; amending s.

682.14, F.S.; authorizing the court to modify or correct an

award; requiring that a consumer seek to modify or vacate

an award issued under a consumer arbitration agreement

within a specified period; amending s. 682.15, F.S.;

providing for the recording and enforcement of an award;

amending s. 682.20, F.S.; providing additional

circumstances under which an arbitration decision may be

appealed; creating s. 682.202, F.S.; specifying that ch.

682, F.S., modifies, limits, and supersedes certain

provisions of federal law; creating s. 682.203, F.S.;

requiring that certain arbitration organizations make

information available to the public concerning the type and

number of disputes it handles; requiring that such

information be provided free of charge; requiring that an

arbitration organization waive the fees for low-income

persons involved in a consumer arbitration; requiring that

an arbitration organization provide notice of the right to

such waiver; prohibiting an arbitrator or arbitration

organization from requiring a consumer to pay the fees and

costs incurred by an opposing party; authorizing a court to

enjoin such violation and order restitution; creating s.

682.204, F.S.; requiring that a party drafting an

arbitration agreement disclose filing fees and costs;

providing that failure to make such disclosures constitutes

a deceptive and unfair trade practice; providing for

enforcement of such provision by injunction; providing for

application of the act; providing an effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. Section 682.011, Florida Statutes, is created to

read:

100

682.011 Definitions.--As used in this chapter, the term:

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(1) "Arbitration agreement" means a standardized contract,

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written by the nonconsumer party, which has a provision requiring

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that disputes arising after the contract's signing be submitted

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to binding arbitration, and the other party to the contract is a

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consumer.

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(2) "Arbitration organization" means an association,

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

108

initiates, sponsors, or administers an arbitration proceeding or

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is involved in the appointment of an arbitrator.

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

111

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

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subject to an arbitration agreement.

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

114

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

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

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

117

or household purposes, including, but not limited to,

118

transactions involving banking, credit cards, home loans, or

119

other financial services; health care services; brokerage

120

services; home construction and improvements; insurance;

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communications; the purchases and lease of motor vehicles and

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other personal property; and the purchase and lease of real

123

property.

124

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

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would conclude that the arbitrator was partial to one party to

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the arbitration, or that it reasonably looks as though the

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arbitrator would tend to favor one of the parties. Evident

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partiality does not require the party alleging such partiality to

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prove that it was actually prejudiced.

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

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

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position in management; or ownership of more than 5 percent

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interest in a business.

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(7) "Knowledge" means actual knowledge.

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

136

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

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association, or joint venture; governmental subdivision, agency,

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or instrumentality thereof; public corporation; or any other

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legal or commercial entity.

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

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tangible medium or that is stored in an electronic or other

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medium and is retrievable in perceivable form.

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(10) "Small business" means:

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(a)1. A sole proprietor of an unincorporated business,

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including a professional practice, whose principal office is in

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this state, who is domiciled in this state, and whose business

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or professional practice has, at the time the action is

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initiated by a state agency, not more than 25 full-time

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employees or a net worth of not more than $2 million, including

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both personal and business investments;

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2. A partnership or corporation, including a professional

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practice, which has its principal office in this state and has

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at the time the action is initiated by a state agency not more

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than 25 full-time employees or a net worth of not more than $2

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million; or

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3. An individual whose net worth did not exceed $2 million

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at the time the action is initiated by a state agency when the

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action is brought against that individual's license to engage in

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the practice or operation of a business, profession, or trade;

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(b) Any small business party as defined in subparagraph

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(a)1., without regard to the number of its employees or its net

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worth, in any action under s. 72.011 or in any administrative

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proceeding under that section to contest the legality of any

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assessment of tax imposed for the sale or use of services as

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provided in chapter 212, or interest thereon, or penalty

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therefor.

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Section 2. Section 682.012, Florida Statutes, is created to

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read:

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682.012 Application.--

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(1) This chapter does not apply to insurance policies made

172

with a consumer or small business, and each provision in any such

173

policy requiring arbitration or restricting a party thereto or

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beneficiary thereof from enforcing any right under it by usual

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legal proceedings or limiting the time to do so is void and

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unenforceable.

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(2) A provision for mandatory binding arbitration within

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any contract is void and unenforceable except to the extent

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federal law provides for its enforceability.

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(3) This chapter does not apply to any arbitrator or any

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arbitration organization in an arbitration proceeding governed by

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rules adopted by a securities self-regulatory organization and

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approved by the United States Securities and Exchange Commission

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under federal law, 15 U.S.C. s. 78.

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(4) This chapter does not restrict the ability of consumers

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to pursue arbitration on a group basis; however, this chapter may

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be applied with respect to arbitrations involving multiple

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consumer parties.

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Section 3. Section 682.013, Florida Statutes, is created to

190

read:

191

682.013 Effect of arbitration agreement; nonwaivable

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provisions.--

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

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

195

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

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of this chapter to the extent permitted by law.

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

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arbitration agreement, a party to the agreement may not:

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

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of s. 682.012, s. 682.032, s. 682.041, s. 682.042, s. 682.08(1)

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and (2), s. 682.11, or s. 682.20; or

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(b) Waive the right under s. 682.07 of a party to an

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arbitration agreement to be represented by a lawyer at any

204

proceeding or hearing under this chapter, but an employer and a

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labor organization may waive the right to representation by a

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lawyer in a labor arbitration.

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(3) A party to an arbitration agreement or arbitration

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

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of, the requirements of this section or s. 682.012(1) or (3), s.

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682.03, s. 682.085, s. 682.10(4) or (5), s. 682.12, s. 682.13, s.

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682.14, s. 682.15, or s. 682.202, except that, if there is an

212

agreement to arbitrate disputes over insurance obligations by two

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or more people engaged in the business of insurance, including,

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

215

intermediaries, or any combination thereof, the parties to the

216

agreement may waive the right to vacate an award under s. 682.13.

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(4) A party to an arbitration agreement or arbitration

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proceeding may not narrow the grounds for vacating an award set

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forth in s. 682.13, except in a subsequent agreement for

220

consideration made after the controversy that is at issue in the

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arbitration has arisen.

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(5) A party to an agreement who submits to, or agrees to

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have, a court decide an issue subject to arbitration, waives the

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right to arbitrate. This includes, but is not limited to,

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initiating a suit or responding to a suit in any manner other

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than by a motion to compel arbitration.

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Section 4. Section 682.031, Florida Statutes, is created to

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read:

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682.031 Notice.--

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(1) Except as otherwise provided in this chapter, a person

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gives notice to another person by delivering notice to the

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

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

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with notice of service of process.

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

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notice or has received actual notice.

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Section 5. Section 682.032, Florida Statutes, is created to

238

read:

239

682.032 Initiation of arbitration.--A person shall initiate

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an arbitration proceeding by giving notice in a record to the

241

other parties to the arbitration agreement by certified or

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registered mail, return receipt requested and obtained, or by

243

service as authorized for the commencement of a civil action. The

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notice must describe the nature of the controversy and the remedy

245

sought.

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Section 6. Section 682.04, Florida Statutes, is amended to

247

read:

248

682.04 Appointment of arbitrators by court.--

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(1) The parties shall select the arbitrator after the

250

dispute to be arbitrated has arisen. If the parties do not agree

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on the selection of the arbitrators, the court an agreement or

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provision for arbitration subject to this law provides a method

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for the appointment of arbitrators or an umpire, this method

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shall be followed. In the absence thereof, or if the agreed

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method fails or for any reason cannot be followed, or if an

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arbitrator or umpire who has been appointed fails to act and his

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or her successor has not been duly appointed, the court, on

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application of a party to such agreement or provision shall

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appoint one or more arbitrators or an umpire deemed by both

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parties to be acceptable. An arbitrator or umpire so appointed

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has shall have like powers as if named or provided for in the

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agreement or provision.

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

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

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

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arbitration proceeding, an existing relationship with a party, or

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any interest other than a de minimis interest that could be

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affected by the proceeding.

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

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arbitration service through which the party has been contracted

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has a direct or indirect interest in the outcome of the

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arbitration.

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Section 7. Section 682.041, Florida Statutes, is created to

274

read:

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682.041 Provisional remedies.--

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(1) The court, upon motion of a party to an arbitration

277

proceeding and for good cause shown, may enter an order for

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provisional remedies to protect the effectiveness of the

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arbitration proceeding to the same extent and under the same

280

conditions as if the controversy were the subject of a civil

281

action.

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(2) A party does not waive a right of arbitration by making

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a motion under subsection (1).

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Section 8. Section 682.042, Florida Statutes, is created to

285

read:

286

682.042 Disclosure by arbitrator.--

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(1) Before accepting appointment, an individual who is

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requested to serve as an arbitrator, after making a reasonable

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inquiry, shall disclose to all parties to the arbitration

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agreement or arbitration proceeding and to any other arbitrators

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any facts that might affect, or appear to affect, the

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impartiality of the arbitrator in the arbitration proceeding,

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including any:

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(a) Financial or personal interest in the outcome of the

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arbitration proceeding; or

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(b) Existing or past relationship with any of the parties

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to the arbitration agreement or arbitration proceeding, their

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counsel or representatives, a witness, or another arbitrators,

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including the number of past arbitrations conducted involving

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either party, the outcomes of those past arbitrations, and the

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dates of decision.

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(2) The parties must be informed that information

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concerning the arbitration service provider's past cases is

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

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(3) An arbitrator has a continuing obligation to disclose

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to all parties to the arbitration agreement and arbitration

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proceeding and to any other arbitrators involved in the

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proceeding any facts that the arbitrator learns after accepting

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appointment which might affect, or appear to affect, the

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

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the information or facts required to be disclosed under

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subsection (1).

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(4) If an arbitrator discloses a fact required by

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subsection (1) or subsection (3) to be disclosed and a party

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timely objects to the appointment or continued service of the

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arbitrator based upon the fact disclosed, the objection may be

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grounds for the removal of the arbitrator or for vacating an

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award made by the arbitrator under s. 682.13.

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

320

by subsection (1) or subsection (2), upon timely objection by a

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

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order to remove the arbitrator and appoint a successor. Failure

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of an arbitrator to make such disclosures is grounds for the

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court to vacate an award under s. 682.13.

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(6) An arbitrator appointed as a neutral arbitrator who

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fails to comply with any disclosure requirement of this section

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is presumed to act with evident partiality under s. 682.13.

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(7) If no circumstances exist which would affect the

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impartiality of any designated arbitrator, such arbitrator shall

330

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

331

present or preexisting ties.

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Section 9. Section 682.043, Florida Statutes, is created to

333

read:

334

682.043 Consolidation of separate arbitration

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proceedings.--

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(1) Except as otherwise provided in subsection (3), upon

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motion of a party to an arbitration agreement or arbitration

338

proceeding, the court shall order consolidation of separate

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arbitration proceedings as to all or some of the claims if:

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(a) There are separate arbitration agreements or separate

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arbitration proceedings between the same persons or one of them

342

is a party to a separate arbitration agreement or separate

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arbitration proceeding with a third person;

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(b) The claims subject to the arbitration agreements arise

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in substantial part from the same transaction or series of

346

related transactions;

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the possibility of conflicting decisions in the separate

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arbitration proceedings; and

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(d) Prejudice resulting from a failure to consolidate is

351

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

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rights of or hardship to parties opposing consolidation.

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(2) The court may order consolidation of separate

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arbitration proceedings as to some claims and allow other claims

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to be resolved in separate arbitration proceedings.

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(3) This section does not prohibit a party from

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participating in a class action lawsuit.

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Section 10. Section 682.05, Florida Statutes, is amended to

359

read:

360

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

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arbitrators must may be exercised by a majority of their number,

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but all arbitrators shall conduct the hearing under s. 682.052

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unless otherwise provided in the agreement or provision for

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arbitration.

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Section 11. Section 682.052, Florida Statutes, is created

366

to read:

367

682.052 Arbitration process.--

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

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that is fundamentally fair. Fundamental fairness includes notice,

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opportunity to be heard, opportunity to present relevant and

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material evidence, opportunity for argument before the

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decisionmakers, and a decisionmaker who is not biased.

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(2) The authority conferred upon the arbitrator includes

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the power to hold conferences with the parties to the arbitration

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proceeding before the hearing and, among other matters, determine

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the admissibility, relevance, materiality, and weight of any

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evidence in accordance with Florida Rules of Evidence and Florida

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Rules of Civil Procedure.

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(3) Unless both parties agree or in cases of extreme

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hardship, both parties or their attorneys must be physically

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present at all hearings and conferences with the arbitrator.

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(4) An arbitrator may decide a request for summary

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disposition of a claim or particular issue:

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(a) If all interested parties agree to permit summary

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disposition of the issue; or

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(b) Upon request of one party to the arbitration proceeding

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if that party gives actual, written notice to all other parties

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to the proceeding in the manner provided in s. 682.031, and the

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other parties are given 30 days to respond after receiving such

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notice.

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Section 12. Section 682.06, Florida Statutes, is amended to

392

read:

393

682.06 Hearing.--Unless otherwise provided by the agreement

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or provision for arbitration:

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

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the hearing and cause notification to the parties to be served

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personally or by registered or certified mail not less than 30 5

398

days before the hearing. The notice must include a statement that

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a party is entitled to representation. Appearance at the hearing

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

401

on the basis of insufficient or lack of such notice. The

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arbitrators may adjourn their hearing from time to time upon

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

404

the arbitration for good cause shown, provided that no

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adjournment or postponement of their hearing shall extend beyond

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the date fixed in the agreement or provision for making the award

407

unless the parties consent to a later date. An umpire authorized

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to hear and decide the cause upon failure of the arbitrators to

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agree upon an award shall, in the course of his or her

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jurisdiction, have like powers and be subject to like limitations

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thereon.

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

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jurisdiction, may hear and decide the controversy upon the

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evidence produced notwithstanding the failure or refusal of a

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

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

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

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promptly with the hearing and making of the award.

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

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evidence material to the controversy and to cross-examine

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witnesses appearing at the hearing in accordance with the Florida

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Rules of Evidence and the Florida Rules of Civil Procedure.

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

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arbitrators but a majority may determine any question and render

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

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

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sit with the arbitrators throughout their hearing but shall not

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be counted as a part of their quorum or in the making of their

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award. If, during the course of the hearing, an arbitrator for

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any reason ceases to act, a replacement arbitrator must be

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appointed in accordance with s. 628.04 to continue the proceeding

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and resolve the controversy the remaining arbitrator, arbitrators

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or umpire appointed to act as neutrals may continue with the

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hearing and determination of the controversy.

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Section 13. Section 682.07, Florida Statutes, is amended to

436

read:

437

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

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to be represented by an attorney at any arbitration proceeding

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or hearing under this law. A waiver thereof prior to the

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proceeding or hearing is ineffective. The parties to an

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arbitration must be provided with information concerning

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institutions that might offer assistance, such as bar

443

associations, legal service associations, civil rights

444

organizations, and trade unions.

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Section 14. Section 682.08, Florida Statutes, is amended to

446

read:

447

682.08 Witnesses, subpoenas, depositions, discovery.--

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(1) Arbitrators, or an umpire authorized to hear and decide

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

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in the course of her or his jurisdiction, may issue subpoenas for

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the attendance of witnesses and for the production of books,

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records, documents, and other evidence, and shall have the power

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to administer oaths. Subpoenas so issued shall be served, and

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upon application to the court by a party to the arbitration or

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the arbitrators, or the umpire, enforced in the manner provided

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by law for the service and enforcement of subpoenas in a civil

457

action. The issuance of a subpoena must be included in the record

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of the arbitration.

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

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

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

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

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

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hearing. Any deposition must be given in the manner provided by

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the Florida Rules of Civil Procedure. A copy of any deposition

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given by a witness called to testify during the arbitration must

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be included in the record of the arbitration.

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(3) A party must, without awaiting a discovery request from

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the arbitrator, provide to the arbitrator and the other parties:

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(a) The name and, if known, the address and telephone

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number of each individual likely to have discoverable

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information, along with the subjects of that information, which

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the disclosing party seeks authorization to use to support its

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claims or defenses; and

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(b) A copy, or a description by category and location, of

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all documents, electronically stored information, and tangible

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things that the disclosing party has in its possession, custody,

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or control and may use to support its claims or defenses.

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All information furnished under this subsection shall be entered

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into the record of the arbitration.

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(4) Discovery shall be conducted in a manner consistent

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with the Florida Rules of Civil Procedure and state law.

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

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permit such additional discovery, as provided by the Florida

486

Rules of Civil Procedure and consistent with state law, as the

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arbitrator decides is appropriate in the circumstances, taking

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into account the needs of the parties to the arbitration

489

proceeding and other affected persons and the desirability of

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making the proceeding fair, expeditious, and cost-effective.

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

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proceeding to comply with the arbitrator's discovery-related

493

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

494

the production of records and other evidence at a discovery

495

proceeding, and take action against a noncomplying party to the

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

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civil action in this state.

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

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prevent the disclosure of privileged information, confidential

500

information, or trade secrets and only to the extent that a court

501

could if the arbitrator makes a finding on the record that any

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public interest in disclosure of information relevant to the

503

protection of public health and safety is outweighed by a

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specific and substantial harm that would result from disclosure.

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(8)(3) All provisions of law compelling a person under

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subpoena to testify are applicable.

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

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

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the production of records and other evidence issued or considered

510

by an arbitrator in connection with an arbitration proceeding in

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another state and consistent with the laws of the jurisdiction. A

512

subpoena or discovery-related order issued by an arbitrator in

513

another state must be served in the manner provided by law for

514

service of subpoenas in a civil action in this state and, upon

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motion to the court by a party to the arbitration proceeding or

516

the arbitrator, enforced in the manner provided by law for

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enforcement of subpoenas in a civil action in this state.

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

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including testimony that is given during a deposition.

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

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as for a witness in the circuit court.

522

Section 15. Section 682.085, Florida Statutes, is created

523

to read:

524

682.085 Judicial enforcement of preaward ruling.--Any party

525

may request the arbitrator to incorporate a preaward ruling in

526

favor of a party to the arbitration proceeding into an award

527

under s. 682.09. The court shall issue an order to confirm the

528

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

529

under ss. 682.13 and 682.14.

530

Section 16. Section 682.09, Florida Statutes, is amended to

531

read:

532

682.09 Award.--

533

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

534

summary of the issues considered, the arbitrators' findings on

535

the issues, their reasons, the damages and any other relief

536

requested and awarded, a statement of any other issues resolved,

537

the discovery list required under s. 682.08, and a statement

538

regarding the disposition of any statutory claims. The award

539

shall be signed by the arbitrators joining in the award or by the

540

umpire in the course of his or her jurisdiction. A copy of the

541

award shall be delivered They or he or she shall deliver a copy

542

to each party to the arbitration either personally or by

543

registered or certified mail, or as provided in the agreement or

544

provision.

545

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

546

by the agreement or provision for arbitration or, if not so

547

fixed, within such time as the court may order on application of

548

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

549

agreement, extend the time either before or after the expiration

550

thereof. Any objection that an award was not made within the time

551

required is waived unless the objecting party notifies the

552

arbitrators or umpire in writing of his or her objection prior to

553

the delivery of the award to him or her.

554

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

555

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

556

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

557

court of the proper jurisdiction over the arbitration.

558

Section 17. Section 682.11, Florida Statutes, is amended to

559

read:

560

682.11 Remedies; fees and expenses of arbitration

561

proceeding.--

562

(1) An arbitrator may award punitive damages or other

563

exemplary relief to the extent that he or she would be authorized

564

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

565

evidence produced at the hearing justifies the award under the

566

legal standards otherwise applicable to the claim.

567

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

568

arbitration, the circuit court shall establish the amount of

569

compensation, if any, which each arbitrator or umpire shall

570

receive for services rendered in each case. Unless otherwise

571

provided in the agreement or provision for arbitration, The

572

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

573

expenses, not including counsel fees, incurred in the conduct of

574

the arbitration, shall be paid as provided in the award. All fees

575

must be itemized in the award. Expenses and fees may not exceed

576

the limits of court fees awarded in a civil action involving the

577

same claim.

578

(3) An arbitrator may award reasonable attorney's fees and

579

other reasonable expenses of arbitration to the extent that such

580

fees and expenses are authorized by law in a civil action

581

involving the same claim or as provided by agreement of the

582

parties to the arbitration proceeding.

583

(4) Upon a showing by the consumer, by an affidavit that

584

includes a statement of financial resources possessed by the

585

consumer, that the consumer is unable to pay the costs of

586

arbitration, the court may order such costs to be shared between

587

the two parties in an equitable manner. A nonconsumer may be

588

ordered to pay the entire cost of the arbitration where a lack of

589

financial resources would make it create a financial hardship to

590

continue the arbitration proceeding.

591

(5) If an arbitrator awards punitive damages or other

592

exemplary relief under subsection (1), the arbitrator shall

593

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

594

in law authorizing the award and state separately the amount of

595

the punitive damages or other exemplary relief.

596

Section 18. Section 682.12, Florida Statutes, is amended to

597

read:

598

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

599

arbitration proceeding receives notice of an award and upon

600

application of a party to the arbitration, the court shall

601

confirm an award, unless within the time limits hereinafter

602

imposed grounds are urged for vacating or modifying or correcting

603

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

604

ss. 682.13 and 682.14.

605

Section 19. Section 682.13, Florida Statutes, is amended to

606

read:

607

682.13 Vacating an award.--

608

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

609

award when:

610

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

611

undue means.

612

(b) There was evident partiality by an arbitrator appointed

613

as a neutral or corruption in any of the arbitrators or umpire or

614

misconduct prejudicing the rights of any party. Partiality may be

615

demonstrated by the appearance of bias if the bias is apparent

616

based upon established facts. Such facts are not limited to those

617

facts disclosed by the arbitrator or arising during the course of

618

the arbitration. The mere nondisclosure of facts that demonstrate

619

potential arbitrator bias is evidence of partiality.

620

621

his jurisdiction exceeded their powers.

622

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

623

his jurisdiction refused to postpone the hearing upon sufficient

624

cause being shown therefor or refused to hear evidence material

625

to the controversy or otherwise so conducted the hearing,

626

contrary to the provisions of s. 682.06, as to prejudice

627

substantially the rights of a party.

628

(e) There was no agreement or provision for arbitration

629

subject to this law, unless the matter was determined in

630

proceedings under s. 682.03 and unless the party participated in

631

the arbitration hearing without raising the objection.

632

(f) The arbitration was conducted without proper notice of

633

the initiation of any stage of arbitration as required in s.

634

682.043 so as to substantially prejudice the rights of a party to

635

the arbitration proceeding.

636

(g) The arbitrator's award is inconsistent with applicable

637

law.

638

(h) The arbitrator's award violates public policy.

639

(i) The arbitrator's award is arbitrary and capricious, or

640

completely irrational.

641

(j) The arbitrator's award is not supported by substantial

642

evidence on the record as a whole.

643

644

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

645

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

646

vacating or refusing to confirm the award.

647

(2) In addition to the grounds to vacate an award set forth

648

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

649

agreement for judicial review of errors of law in the arbitration

650

award. If the parties have so contracted, the court shall vacate

651

the award if the arbitrator has committed an error of law

652

substantially prejudicing the rights of a party.

653

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

654

within 90 days after delivery of a copy of the award to the

655

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

656

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

657

grounds are known or should have been known. A court may extend

658

the time limitation in this subsection upon a showing of good

659

cause.

660

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

661

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

662

before new arbitrators chosen as provided in the agreement or

663

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

664

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

665

stated set forth in paragraphs (1)(a) and (b) (1)(c) and (d), the

666

court may order a rehearing before the arbitrators or umpire who

667

made the award or their successors appointed in accordance with

668

s. 682.04. The time within which the agreement or provision for

669

arbitration requires the award to be made is applicable to the

670

rehearing and commences from the date of the order therefor.

671

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

672

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

673

confirm the award.

674

Section 20. Section 682.14, Florida Statutes, is amended to

675

read:

676

682.14 Modification or correction of award.--

677

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

678

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

679

correct the award when:

680

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

681

evident mistake in the description of any person, thing or

682

property referred to in the award.

683

(b) The arbitrators or umpire have awarded upon a matter

684

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

685

corrected without affecting the merits of the decision upon the

686

issues submitted.

687

688

affecting the merits of the controversy, including such cases

689

where fees awarded exceed the amount that would be assessed in a

690

comparable civil claim in state court.

691

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

692

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

693

confirm the award as so modified and corrected. Otherwise, the

694

court shall confirm the award as made.

695

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

696

joined in the alternative with an application to vacate the

697

award.

698

(4) Irrespective of the time periods established in ss.

699

682.13 and 682.14, a consumer may also seek to modify or vacate

700

an award issued pursuant to an arbitration agreement within 30

701

days after receiving notice of a motion to confirm the award.

702

Section 21. Section 682.15, Florida Statutes, is amended to

703

read:

704

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

705

an order confirming, modifying, or correcting an award or

706

vacating an award without directing a rehearing, judgment or

707

decree shall be entered in conformity therewith and be enforced

708

as any other judgment or decree. The judgment may be recorded,

709

docketed, and enforced as any other judgment in a civil action.

710

Costs of the application and of the proceedings subsequent

711

thereto, and disbursements may be awarded by the court.

712

Section 22. Section 682.20, Florida Statutes, is amended to

713

read:

714

682.20 Appeals.--

715

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

716

having proper jurisdiction, upon any of the following bases:

717

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

718

arbitration made under s. 682.03.

719

(b) An order granting an application to stay arbitration

720

made under s. 682.03(2)-(4).

721

722

conflict on the part of the arbitrator.

723

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

724

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

725

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

726

certiorari:

727

(a) A ruling concerning evidentiary privileges or

728

confidentiality rights of the parties.

729

(b) A grant of a protective order preventing the disclosure

730

of privileged information, confidential information, or trade

731

secrets under s. 682.08.

732

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

733

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

734

subsection (1) or subsection (2) and upon any of the following

735

bases:

736

(a)(c) An order confirming or denying confirmation of an

737

award.

738

(b)(d) An order modifying or correcting an award.

739

(c)(e) An order vacating an award without directing a

740

rehearing.

741

(d)(f) A judgment or decree entered pursuant to the

742

provisions of this law.

743

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

744

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

745

in a civil action.

746

Section 23. Section 682.202, Florida Statutes, is created

747

to read:

748

682.202 Relationship to the Electronic Signatures in Global

749

and National Commerce Act.--This chapter modifies, limits, and

750

supersedes the federal Electronic Signatures in Global and

751

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

752

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

753

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

754

of that act.

755

Section 24. Section 682.203, Florida Statutes, is created

756

to read:

757

682.203 Regulation of arbitration organizations.--

758

(1) Any arbitration organization that administers or is

759

otherwise involved in 10 or more consumer arbitrations per year

760

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

761

the public in a computer-searchable, sortable, and downloadable

762

database that allows searching through the use of multiple search

763

terms in the same search and that is prominent and accessible at

764

the Internet website of the private arbitration organization, and

765

on paper upon request, all of the following information regarding

766

the arbitration organization within the preceding 5 years:

767

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

768

that is party to the arbitration.

769

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

770

rise to the dispute and the type of dispute involved, including,

771

but not limited to, goods, banking, insurance, health care, debt

772

collection, employment, and, if it involves employment, the

773

amount of the employee's annual wage divided into the following

774

ranges:

775

1. Less than $100,000;

776

2. One hundred thousand dollars to $250,000, inclusive; and

777

3. More than $250,000.

778

779

(d) The number of occasions, if any, in which a corporation

780

or business entity that is a party to an arbitration has

781

previously been a party in an arbitration or mediation

782

administered by the arbitration organization.

783

(e) Whether the consumer in each prior arbitration was

784

represented by an attorney and, if so, the identifying

785

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

786

firm affiliation, business telephone number, and the address of

787

the attorney's law firm.

788

(f) The date that the arbitration organization received the

789

demand for arbitration, the date that the arbitrator was

790

appointed, and the date of disposition by the arbitrator or

791

arbitration organization.

792

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

793

including withdrawal, abandonment, settlement, award after

794

hearing, award without hearing, default, or dismissal without

795

hearing.

796

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

797

any other relief granted, if any.

798

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

799

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

800

each party.

801

(2) If the required information is provided by the

802

arbitration organization in a computer-searchable format at the

803

company's Internet website and may be downloaded without any fee,

804

the organization may charge the actual cost of copying to any

805

person who requests the information on paper. If the information

806

required is not accessible by the Internet, the organization

807

shall provide that information without charge to any person who

808

requests the information on paper.

809

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

810

against a consumer by an arbitration organization in a consumer

811

arbitration shall be waived for any person having a gross monthly

812

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

813

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

814

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

815

organization shall provide written notice of the right to obtain

816

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

817

the attention of a reasonable consumer, including, but not

818

limited to, prominently placing a notice in its first written

819

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

820

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

821

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

822

establish eligibility by making a declaration under oath on a

823

form provided by the arbitration organization indicating the

824

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

825

household. An arbitration organization may not require a person

826

to provide any further statement or evidence of indigence. The

827

form and the information contained therein is confidential and

828

may not be disclosed to an adverse party or a nonparty to the

829

arbitration.

830

(6) An arbitration organization may not keep confidential

831

the number of waiver requests received or granted or the total

832

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

833

(7) An arbitrator or arbitration organization may not

834

administer an arbitration under any agreement or rule requiring

835

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

836

and costs incurred by any opposing party if the consumer does not

837

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

838

fees and costs of the arbitrator, provider organization,

839

attorney, or witnesses.

840

(8) An arbitration organization may not administer a

841

consumer arbitration to be conducted in this state, or provide

842

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

843

(a) The arbitration organization has, or within the

844

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

845

attorney for a party involved in the arbitration; or

846

(b) Any party or attorney for a party has, or within the

847

preceding year has had, any type of financial interest in the

848

arbitration organization.

849

(9) Upon a violation of any provision of this section, the

850

affected person or entity, including the Office of the Attorney

851

General, may request a court to enjoin the arbitration

852

organization from such violation and order appropriate

853

restitution. The arbitration organization is liable for that

854

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

855

person or entity prevails or if, after the action is commenced,

856

the arbitration organization voluntarily complies with the

857

provision.

858

Section 25. Section 682.204, Florida Statutes, is created

859

to read:

860

682.204 Disclosure of arbitration costs.--

861

(1) A party drafting an arbitration agreement shall clearly

862

and conspicuously disclose in regard to any arbitration:

863

(a) The filing fee;

864

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

865

room if the consumer elects to appear in person;

866

867

organization will assess in conjunction with an arbitration where

868

the consumer appears in person; and

869

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

870

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

871

consumer does not prevail.

872

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

873

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

874

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

875

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

876

estimate. A party providing a reasonable, good faith cost

877

estimate is not liable if the actual costs of a particular

878

arbitration varies within reason from the estimate provided.

879

(3) Failure to comply with this section constitutes a

880

deceptive act pursuant to the Florida Deceptive and Unfair Trade

881

Practices Act. In addition, the information provided in the

882

disclosure may be considered in a determination of whether an

883

arbitration agreement is unconscionable or is otherwise not

884

enforceable under other law.

885

(4) If a party drafting an arbitration agreement violates

886

any provision of this section, any person or entity, including

887

the Office of the Attorney General, may request a court to enjoin

888

the drafting party from such violation as to agreements it enters

889

into in the future. The drafting party is liable to the person or

890

entity bringing such an action for that person or entity's

891

reasonable attorney's fees and costs if the court issues an

892

injunction or if, after the action is commenced, the drafting

893

party voluntarily complies with the provisions of this section.

894

Section 26. This act shall take effect July 1, 2008, and

895

applies to agreements and provisions for arbitration entered into

896

on or after that date.

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