Florida Senate - 2018                                    SB 1768
       
       
        
       By Senator Torres
       
       
       
       
       
       15-01667-18                                           20181768__
    1                        A bill to be entitled                      
    2         An act relating to community associations; amending s.
    3         718.1255, F.S.; requiring the Division of Florida
    4         Condominiums, Timeshares, and Mobile Homes of the
    5         Department of Business and Professional Regulation to
    6         establish the Office of Community Association
    7         Hearings; requiring the division to employ full-time
    8         attorneys to act as community association hearing
    9         officers in lieu of arbitrators for specified
   10         purposes; allowing the division to certify attorneys
   11         who are not employed by the division to act as
   12         community association hearing officers under specified
   13         conditions; specifying grounds for which a community
   14         association hearing officer may be terminated;
   15         transferring the powers and duties of arbitrators to
   16         community association hearing officers; authorizing a
   17         community association hearing officer to hold a
   18         hearing and impose sanctions against a board member or
   19         officer under certain conditions; amending s. 720.311,
   20         F.S.; revising and providing requirements with respect
   21         to alternative dispute resolution; amending ss. 34.01,
   22         718.117, 719.106, 720.303, and 723.078, F.S.;
   23         conforming provisions to changes made by the act;
   24         providing an effective date.
   25  
   26  Be It Enacted by the Legislature of the State of Florida:
   27  
   28         Section 1. Subsection (4) of section 718.1255, Florida
   29  Statutes, is amended to read:
   30         718.1255 Alternative dispute resolution; voluntary
   31  mediation; mandatory nonbinding arbitration; legislative
   32  findings.—
   33         (4) MANDATORY NONBINDING ARBITRATION AND MEDIATION OF
   34  DISPUTES.—The Division of Florida Condominiums, Timeshares, and
   35  Mobile Homes of the Department of Business and Professional
   36  Regulation shall establish the Office of Community Association
   37  Hearings and shall may employ full-time attorneys to act as
   38  community association hearing officers arbitrators to conduct
   39  the arbitration hearings provided by this chapter. The division
   40  may also certify attorneys who are not employed by the division
   41  to act as community association hearing officers, by mutual
   42  agreement of the parties, arbitrators to conduct the arbitration
   43  hearings provided by this chapter.
   44         (a)A No person may not be employed by the department as a
   45  full-time community association hearing officer arbitrator
   46  unless he or she is a member in good standing of The Florida
   47  Bar. A community association hearing officer may only be
   48  terminated by the department for cause. A person may only be
   49  certified by the division to act as a community association
   50  hearing officer an arbitrator if he or she has:
   51         1. Been a member in good standing of The Florida Bar for at
   52  least 5 years and has mediated or arbitrated at least 10
   53  disputes involving condominiums in this state during the 3 years
   54  immediately preceding the date of application;,
   55         2. Mediated or arbitrated at least 30 disputes in any
   56  subject area in this state during the 3 years immediately
   57  preceding the date of employment or application;, or
   58         3. Attained board certification in real estate law or
   59  condominium and planned development law from The Florida Bar.
   60         (b)Community association hearing officer Arbitrator
   61  certification is valid for 1 year. A community association
   62  hearing officer An arbitrator who does not maintain the minimum
   63  qualifications for initial certification may not have his or her
   64  certification renewed.
   65         (c) The department may not enter into a legal services
   66  contract for an arbitration hearing under this chapter with an
   67  attorney who is not a certified community association hearing
   68  officer arbitrator unless a certified community association
   69  hearing officer arbitrator is not available within 50 miles of
   70  the dispute. The department shall adopt rules of procedure to
   71  govern such arbitration hearings including mediation incident
   72  thereto.
   73         (d) The decision of a community association hearing officer
   74  an arbitrator is shall be final; however, a decision is not
   75  shall not be deemed final agency action. Nothing in this
   76  provision shall be construed to foreclose parties from
   77  proceeding in a trial de novo unless the parties have agreed
   78  that the arbitration is binding. If judicial proceedings are
   79  initiated, the final decision of the community association
   80  hearing officer arbitrator shall be admissible in evidence in
   81  the trial de novo.
   82         (e)(a)Before Prior to the institution of court litigation,
   83  a party to a dispute shall petition the division for nonbinding
   84  arbitration. The petition must be accompanied by a filing fee in
   85  the amount of $50. Filing fees collected under this section must
   86  be used to defray the expenses of the alternative dispute
   87  resolution program.
   88         (f)(b) The petition must recite, and have attached thereto,
   89  supporting proof that the petitioner gave the respondents:
   90         1. Advance written notice of the specific nature of the
   91  dispute;
   92         2. A demand for relief, and a reasonable opportunity to
   93  comply or to provide the relief; and
   94         3. Notice of the intention to file an arbitration petition
   95  or other legal action in the absence of a resolution of the
   96  dispute.
   97  
   98  Failure to include the allegations or proof of compliance with
   99  these prerequisites requires dismissal of the petition without
  100  prejudice.
  101         (g)(c) Upon receipt, the petition shall be promptly
  102  reviewed by the division to determine the existence of a dispute
  103  and compliance with the requirements of paragraphs (e) and (f)
  104  (a) and (b). If emergency relief is required and is not
  105  available through arbitration, a motion to stay the arbitration
  106  may be filed. The motion must be accompanied by a verified
  107  petition alleging facts that, if proven, would support entry of
  108  a temporary injunction, and if an appropriate motion and
  109  supporting papers are filed, the division may abate the
  110  arbitration pending a court hearing and disposition of a motion
  111  for temporary injunction.
  112         (h)(d) Upon determination by the division that a dispute
  113  exists and that the petition substantially meets the
  114  requirements of paragraphs (e) and (f) (a) and (b) and any other
  115  applicable rules, the division shall assign or enter into a
  116  contract with a community association hearing officer an
  117  arbitrator and serve a copy of the petition upon all
  118  respondents. The community association hearing officer
  119  arbitrator shall conduct a hearing within 30 days after being
  120  assigned or entering into a contract unless the petition is
  121  withdrawn or a continuance is granted for good cause shown.
  122         (i)(e) Before or after the filing of the respondents’
  123  answer to the petition, any party may request that the community
  124  association hearing officer arbitrator refer the case to
  125  mediation under this section and any rules adopted by the
  126  division. Upon receipt of a request for mediation, the division
  127  shall promptly contact the parties to determine if there is
  128  agreement that mediation would be appropriate. If all parties
  129  agree, the dispute must be referred to mediation.
  130  Notwithstanding a lack of an agreement by all parties, the
  131  community association hearing officer arbitrator may refer a
  132  dispute to mediation at any time.
  133         (j)(f) Upon referral of a case to mediation, the parties
  134  must select a mutually acceptable mediator. To assist in the
  135  selection, the community association hearing officer arbitrator
  136  shall provide the parties with a list of both volunteer and paid
  137  mediators that have been certified by the division under s.
  138  718.501. If the parties are unable to agree on a mediator within
  139  the time allowed by the community association hearing officer
  140  arbitrator, the community association hearing officer arbitrator
  141  shall appoint a mediator from the list of certified mediators.
  142  If a case is referred to mediation, the parties shall attend a
  143  mediation conference, as scheduled by the parties and the
  144  mediator. If any party fails to attend a duly noticed mediation
  145  conference, without the permission or approval of the community
  146  association hearing officer arbitrator or mediator, the
  147  community association hearing officer arbitrator must impose
  148  sanctions against the party, including the striking of any
  149  pleadings filed, the entry of an order of dismissal or default
  150  if appropriate, and the award of costs and attorney fees
  151  incurred by the other parties. Unless otherwise agreed to by the
  152  parties or as provided by order of the community association
  153  hearing officer arbitrator, a party is deemed to have appeared
  154  at a mediation conference by the physical presence of the party
  155  or its representative having full authority to settle without
  156  further consultation, provided that an association may comply by
  157  having one or more representatives present with full authority
  158  to negotiate a settlement and recommend that the board of
  159  administration ratify and approve such a settlement within 5
  160  days from the date of the mediation conference. The parties
  161  shall share equally the expense of mediation, unless they agree
  162  otherwise.
  163         (k)(g) The purpose of mediation as provided for by this
  164  section is to present the parties with an opportunity to resolve
  165  the underlying dispute in good faith, and with a minimum
  166  expenditure of time and resources.
  167         (l)(h) Mediation proceedings must generally be conducted in
  168  accordance with the Florida Rules of Civil Procedure, and these
  169  proceedings are privileged and confidential to the same extent
  170  as court-ordered mediation. Persons who are not parties to the
  171  dispute are not allowed to attend the mediation conference
  172  without the consent of all parties, with the exception of
  173  counsel for the parties and corporate representatives designated
  174  to appear for a party. If the mediator declares an impasse after
  175  a mediation conference has been held, the arbitration proceeding
  176  terminates, unless all parties agree in writing to continue the
  177  arbitration proceeding, in which case the community association
  178  hearing officer’s arbitrator’s decision shall be binding or
  179  nonbinding, as agreed upon by the parties; in the arbitration
  180  proceeding, the community association hearing officer arbitrator
  181  shall not consider any evidence relating to the unsuccessful
  182  mediation except in a proceeding to impose sanctions for failure
  183  to appear at the mediation conference. If the parties do not
  184  agree to continue arbitration, the community association hearing
  185  officer arbitrator shall enter an order of dismissal, and either
  186  party may institute a suit in a court of competent jurisdiction.
  187  The parties may seek to recover any costs and attorney fees
  188  incurred in connection with arbitration and mediation
  189  proceedings under this section as part of the costs and fees
  190  that may be recovered by the prevailing party in any subsequent
  191  litigation.
  192         (m)(i) Arbitration shall be conducted according to rules
  193  adopted by the division. The filing of a petition for
  194  arbitration shall toll the applicable statute of limitations.
  195         (n)(j) At the request of any party to the arbitration, the
  196  community association hearing officer arbitrator shall issue
  197  subpoenas for the attendance of witnesses and the production of
  198  books, records, documents, and other evidence and any party on
  199  whose behalf a subpoena is issued may apply to the court for
  200  orders compelling such attendance and production. Subpoenas
  201  shall be served and shall be enforceable in the manner provided
  202  by the Florida Rules of Civil Procedure. Discovery may, in the
  203  discretion of the community association hearing officer
  204  arbitrator, be permitted in the manner provided by the Florida
  205  Rules of Civil Procedure. Rules adopted by the division may
  206  authorize any reasonable sanctions except contempt for a
  207  violation of the arbitration procedural rules of the division or
  208  for the failure of a party to comply with a reasonable nonfinal
  209  order issued by a community association hearing officer an
  210  arbitrator which is not under judicial review.
  211         (o)(k) The arbitration decision shall be rendered within 30
  212  days after the hearing and presented to the parties in writing.
  213  An arbitration decision is final in those disputes in which the
  214  parties have agreed to be bound. An arbitration decision is also
  215  final if a complaint for a trial de novo is not filed in a court
  216  of competent jurisdiction in which the condominium is located
  217  within 30 days of the decision being presented to the parties.
  218  The right to file for a trial de novo entitles the parties to
  219  file a complaint in the appropriate trial court for a judicial
  220  resolution of the dispute. The prevailing party in an
  221  arbitration proceeding shall be awarded the costs of the
  222  arbitration and reasonable attorney fees in an amount determined
  223  by the community association hearing officer arbitrator. Such an
  224  award shall include the costs and reasonable attorney fees
  225  incurred in the arbitration proceeding as well as the costs and
  226  reasonable attorney fees incurred in preparing for and attending
  227  any scheduled mediation. An arbitrator’s failure to render a
  228  written decision within 30 days after the hearing may result in
  229  the cancellation of his or her arbitration certification.
  230         (p)(l) The party who files a complaint for a trial de novo
  231  shall be assessed the other party’s arbitration costs, court
  232  costs, and other reasonable costs, including attorney fees,
  233  investigation expenses, and expenses for expert or other
  234  testimony or evidence incurred after the arbitration hearing if
  235  the judgment upon the trial de novo is not more favorable than
  236  the arbitration decision. If the judgment is more favorable, the
  237  party who filed a complaint for trial de novo shall be awarded
  238  reasonable court costs and attorney fees.
  239         (q)(m) Any party to an arbitration proceeding may enforce
  240  an arbitration award by filing a petition in a court of
  241  competent jurisdiction in which the condominium is located. A
  242  petition may not be granted unless the time for appeal by the
  243  filing of a complaint for trial de novo has expired. If a
  244  complaint for a trial de novo has been filed, a petition may not
  245  be granted with respect to an arbitration award that has been
  246  stayed. If the petition for enforcement is granted, the
  247  petitioner shall recover reasonable attorney fees and costs
  248  incurred in enforcing the arbitration award. A mediation
  249  settlement may also be enforced through the county or circuit
  250  court, as applicable, and any costs and fees incurred in the
  251  enforcement of a settlement agreement reached at mediation must
  252  be awarded to the prevailing party in any enforcement action.
  253         (r)1.If the community association hearing officer’s
  254  judgment finds that a board member or officer has intentionally
  255  prevented an association from complying with chapter 617,
  256  chapter 718, chapter 719, or chapter 720, the community
  257  association hearing officer shall serve the board member or
  258  officer with an order to show cause why sanctions should not be
  259  imposed against him or her. If the board member or officer
  260  responds to the order to show cause, the community association
  261  hearing officer shall hold a hearing to determine if sanctions
  262  should be imposed on the board member or officer. If the board
  263  member or officer does not respond to the order by the date
  264  specified, a hearing shall not be held and sanctions shall be
  265  imposed.
  266         2.a.If the community association hearing officer finds
  267  that a board member or officer has intentionally prevented an
  268  association from complying with chapter 617, chapter 718,
  269  chapter 719, or chapter 720, the community association hearing
  270  officer may impose one or more of the following sanctions,
  271  notice of which must be provided to the board member or officer
  272  in writing:
  273         (I)Require the board member or officer to reimburse the
  274  association for any prevailing party attorney fees or costs
  275  imposed against it.
  276         (II)Require the board member or officer to reimburse the
  277  attorney fees and costs incurred by and to the association.
  278         (III)Require the board member or officer to reimburse the
  279  association for any damages awarded against it.
  280         b.If the sanction is not paid by the date specified in the
  281  notice, the association shall impose the amount owed as a lien
  282  against the board member or officer’s unit or units.
  283         3.The award of attorney fees as provided in s. 57.105
  284  applies to any proceeding conducted pursuant to this section.
  285         4.If a community association hearing officer finds
  286  evidence of a criminal violation, the community association
  287  hearing officer shall refer the evidence to the appropriate
  288  state attorney.
  289         Section 2. Section 720.311, Florida Statutes, is amended to
  290  read:
  291         720.311 Alternative dispute resolution.—The division shall
  292  conduct alternative dispute resolution proceedings in accordance
  293  with s. 718.1255.
  294         (1)The Legislature finds that alternative dispute
  295  resolution has made progress in reducing court dockets and
  296  trials and in offering a more efficient, cost-effective option
  297  to litigation. The filing of any petition for arbitration or the
  298  serving of a demand for presuit mediation as provided for in
  299  this section shall toll the applicable statute of limitations.
  300  Any recall dispute filed with the department pursuant to s.
  301  720.303(10) shall be conducted by the department in accordance
  302  with the provisions of ss. 718.112(2)(j) and 718.1255 and the
  303  rules adopted by the division. In addition, the department shall
  304  conduct mandatory binding arbitration of election disputes
  305  between a member and an association pursuant to s. 718.1255 and
  306  rules adopted by the division. Neither election disputes nor
  307  recall disputes are eligible for presuit mediation; these
  308  disputes shall be arbitrated by the department. At the
  309  conclusion of the proceeding, the department shall charge the
  310  parties a fee in an amount adequate to cover all costs and
  311  expenses incurred by the department in conducting the
  312  proceeding. Initially, the petitioner shall remit a filing fee
  313  of at least $200 to the department. The fees paid to the
  314  department shall become a recoverable cost in the arbitration
  315  proceeding, and the prevailing party in an arbitration
  316  proceeding shall recover its reasonable costs and attorney
  317  attorney’s fees in an amount found reasonable by the community
  318  association hearing officer arbitrator. The department shall
  319  adopt rules to effectuate the purposes of this section.
  320         (2)(a)Disputes between an association and a parcel owner
  321  regarding use of or changes to the parcel or the common areas
  322  and other covenant enforcement disputes, disputes regarding
  323  amendments to the association documents, disputes regarding
  324  meetings of the board and committees appointed by the board,
  325  membership meetings not including election meetings, and access
  326  to the official records of the association shall be the subject
  327  of a demand for presuit mediation served by an aggrieved party
  328  before the dispute is filed in court. Presuit mediation
  329  proceedings must be conducted in accordance with the applicable
  330  Florida Rules of Civil Procedure, and these proceedings are
  331  privileged and confidential to the same extent as court-ordered
  332  mediation. Disputes subject to presuit mediation under this
  333  section shall not include the collection of any assessment,
  334  fine, or other financial obligation, including attorney’s fees
  335  and costs, claimed to be due or any action to enforce a prior
  336  mediation settlement agreement between the parties. Also, in any
  337  dispute subject to presuit mediation under this section where
  338  emergency relief is required, a motion for temporary injunctive
  339  relief may be filed with the court without first complying with
  340  the presuit mediation requirements of this section. After any
  341  issues regarding emergency or temporary relief are resolved, the
  342  court may either refer the parties to a mediation program
  343  administered by the courts or require mediation under this
  344  section. An arbitrator or judge may not consider any information
  345  or evidence arising from the presuit mediation proceeding except
  346  in a proceeding to impose sanctions for failure to attend a
  347  presuit mediation session or to enforce a mediated settlement
  348  agreement. Persons who are not parties to the dispute may not
  349  attend the presuit mediation conference without the consent of
  350  all parties, except for counsel for the parties and a corporate
  351  representative designated by the association. When mediation is
  352  attended by a quorum of the board, such mediation is not a board
  353  meeting for purposes of notice and participation set forth in s.
  354  720.303. An aggrieved party shall serve on the responding party
  355  a written demand to participate in presuit mediation in
  356  substantially the following form:
  357  STATUTORY OFFER TO PARTICIPATE
  358  
  359  IN PRESUIT MEDIATION
  360  The alleged aggrieved party, ................, hereby demands
  361  that ................, as the responding party, engage in
  362  mandatory presuit mediation in connection with the following
  363  disputes, which by statute are of a type that are subject to
  364  presuit mediation:
  365  (List specific nature of the dispute or disputes to be mediated
  366  and the authority supporting a finding of a violation as to each
  367  dispute.)
  368  Pursuant to section 720.311, Florida Statutes, this demand to
  369  resolve the dispute through presuit mediation is required before
  370  a lawsuit can be filed concerning the dispute. Pursuant to the
  371  statute, the parties are required to engage in presuit mediation
  372  with a neutral third-party mediator in order to attempt to
  373  resolve this dispute without court action, and the aggrieved
  374  party demands that you likewise agree to this process. If you
  375  fail to participate in the mediation process, suit may be
  376  brought against you without further warning.
  377  The process of mediation involves a supervised negotiation
  378  process in which a trained, neutral third-party mediator meets
  379  with both parties and assists them in exploring possible
  380  opportunities for resolving part or all of the dispute. By
  381  agreeing to participate in presuit mediation, you are not bound
  382  in any way to change your position. Furthermore, the mediator
  383  has no authority to make any decisions in this matter or to
  384  determine who is right or wrong and merely acts as a facilitator
  385  to ensure that each party understands the position of the other
  386  party and that all options for reasonable settlement are fully
  387  explored.
  388  If an agreement is reached, it shall be reduced to writing and
  389  becomes a binding and enforceable commitment of the parties. A
  390  resolution of one or more disputes in this fashion avoids the
  391  need to litigate these issues in court. The failure to reach an
  392  agreement, or the failure of a party to participate in the
  393  process, results in the mediator declaring an impasse in the
  394  mediation, after which the aggrieved party may proceed to court
  395  on all outstanding, unsettled disputes. If you have failed or
  396  refused to participate in the entire mediation process, you will
  397  not be entitled to recover attorney’s fees, even if you prevail.
  398  The aggrieved party has selected and hereby lists five certified
  399  mediators who we believe to be neutral and qualified to mediate
  400  the dispute. You have the right to select any one of these
  401  mediators. The fact that one party may be familiar with one or
  402  more of the listed mediators does not mean that the mediator
  403  cannot act as a neutral and impartial facilitator. Any mediator
  404  who cannot act in this capacity is required ethically to decline
  405  to accept engagement. The mediators that we suggest, and their
  406  current hourly rates, are as follows:
  407  (List the names, addresses, telephone numbers, and hourly rates
  408  of the mediators. Other pertinent information about the
  409  background of the mediators may be included as an attachment.)
  410  You may contact the offices of these mediators to confirm that
  411  the listed mediators will be neutral and will not show any
  412  favoritism toward either party. The Florida Supreme Court can
  413  provide you a list of certified mediators.
  414  Unless otherwise agreed by the parties, section 720.311(2)(b),
  415  Florida Statutes, requires that the parties share the costs of
  416  presuit mediation equally, including the fee charged by the
  417  mediator. An average mediation may require three to four hours
  418  of the mediator’s time, including some preparation time, and the
  419  parties would need to share equally the mediator’s fees as well
  420  as their own attorney’s fees if they choose to employ an
  421  attorney in connection with the mediation. However, use of an
  422  attorney is not required and is at the option of each party. The
  423  mediators may require the advance payment of some or all of the
  424  anticipated fees. The aggrieved party hereby agrees to pay or
  425  prepay one-half of the mediator’s estimated fees and to forward
  426  this amount or such other reasonable advance deposits as the
  427  mediator requires for this purpose. Any funds deposited will be
  428  returned to you if these are in excess of your share of the fees
  429  incurred.
  430  To begin your participation in presuit mediation to try to
  431  resolve the dispute and avoid further legal action, please sign
  432  below and clearly indicate which mediator is acceptable to you.
  433  We will then ask the mediator to schedule a mutually convenient
  434  time and place for the mediation conference to be held. The
  435  mediation conference must be held within ninety (90) days of
  436  this date, unless extended by mutual written agreement. In the
  437  event that you fail to respond within 20 days from the date of
  438  this letter, or if you fail to agree to at least one of the
  439  mediators that we have suggested or to pay or prepay to the
  440  mediator one-half of the costs involved, the aggrieved party
  441  will be authorized to proceed with the filing of a lawsuit
  442  against you without further notice and may seek an award of
  443  attorney’s fees or costs incurred in attempting to obtain
  444  mediation.
  445  Therefore, please give this matter your immediate attention. By
  446  law, your response must be mailed by certified mail, return
  447  receipt requested, and by first-class mail to the address shown
  448  on this demand.
  449  ........................
  450  ........................
  451  RESPONDING PARTY: YOUR SIGNATURE INDICATES YOUR AGREEMENT TO
  452  THAT CHOICE.
  453                        AGREEMENT TO MEDIATE                       
  454  The undersigned hereby agrees to participate in presuit
  455  mediation and agrees to attend a mediation conducted by the
  456  following mediator or mediators who are listed above as someone
  457  who would be acceptable to mediate this dispute:
  458  (List acceptable mediator or mediators.)
  459  I/we further agree to pay or prepay one-half of the mediator’s
  460  fees and to forward such advance deposits as the mediator may
  461  require for this purpose.
  462  ........................
  463  Signature of responding party #1
  464  ........................
  465  Telephone contact information
  466  ........................
  467  Signature and telephone contact information of responding party
  468  #2 (if applicable)(if property is owned by more than one person,
  469  all owners must sign)
  470         (b)Service of the statutory demand to participate in
  471  presuit mediation shall be effected by sending a letter in
  472  substantial conformity with the above form by certified mail,
  473  return receipt requested, with an additional copy being sent by
  474  regular first-class mail, to the address of the responding party
  475  as it last appears on the books and records of the association.
  476  The responding party has 20 days from the date of the mailing of
  477  the statutory demand to serve a response to the aggrieved party
  478  in writing. The response shall be served by certified mail,
  479  return receipt requested, with an additional copy being sent by
  480  regular first-class mail, to the address shown on the statutory
  481  demand. Notwithstanding the foregoing, once the parties have
  482  agreed on a mediator, the mediator may reschedule the mediation
  483  for a date and time mutually convenient to the parties. The
  484  parties shall share the costs of presuit mediation equally,
  485  including the fee charged by the mediator, if any, unless the
  486  parties agree otherwise, and the mediator may require advance
  487  payment of its reasonable fees and costs. The failure of any
  488  party to respond to a demand or response, to agree upon a
  489  mediator, to make payment of fees and costs within the time
  490  established by the mediator, or to appear for a scheduled
  491  mediation session without the approval of the mediator, shall
  492  constitute the failure or refusal to participate in the
  493  mediation process and shall operate as an impasse in the presuit
  494  mediation by such party, entitling the other party to proceed in
  495  court and to seek an award of the costs and fees associated with
  496  the mediation. Additionally, notwithstanding the provisions of
  497  any other law or document, persons who fail or refuse to
  498  participate in the entire mediation process may not recover
  499  attorney’s fees and costs in subsequent litigation relating to
  500  the dispute. If any presuit mediation session cannot be
  501  scheduled and conducted within 90 days after the offer to
  502  participate in mediation was filed, an impasse shall be deemed
  503  to have occurred unless both parties agree to extend this
  504  deadline.
  505         (c)If presuit mediation as described in paragraph (a) is
  506  not successful in resolving all issues between the parties, the
  507  parties may file the unresolved dispute in a court of competent
  508  jurisdiction or elect to enter into binding or nonbinding
  509  arbitration pursuant to the procedures set forth in s. 718.1255
  510  and rules adopted by the division, with the arbitration
  511  proceeding to be conducted by a department arbitrator or by a
  512  private arbitrator certified by the department. If all parties
  513  do not agree to arbitration proceedings following an
  514  unsuccessful presuit mediation, any party may file the dispute
  515  in court. A final order resulting from nonbinding arbitration is
  516  final and enforceable in the courts if a complaint for trial de
  517  novo is not filed in a court of competent jurisdiction within 30
  518  days after entry of the order. As to any issue or dispute that
  519  is not resolved at presuit mediation, and as to any issue that
  520  is settled at presuit mediation but is thereafter subject to an
  521  action seeking enforcement of the mediation settlement, the
  522  prevailing party in any subsequent arbitration or litigation
  523  proceeding shall be entitled to seek recovery of all costs and
  524  attorney’s fees incurred in the presuit mediation process.
  525         (d)A mediator or arbitrator shall be authorized to conduct
  526  mediation or arbitration under this section only if he or she
  527  has been certified as a circuit court civil mediator or
  528  arbitrator, respectively, pursuant to the requirements
  529  established by the Florida Supreme Court. Settlement agreements
  530  resulting from mediation shall not have precedential value in
  531  proceedings involving parties other than those participating in
  532  the mediation to support either a claim or defense in other
  533  disputes.
  534         (e)The presuit mediation procedures provided by this
  535  subsection may be used by a Florida corporation responsible for
  536  the operation of a community in which the voting members are
  537  parcel owners or their representatives, in which membership in
  538  the corporation is not a mandatory condition of parcel
  539  ownership, or which is not authorized to impose an assessment
  540  that may become a lien on the parcel.
  541         Section 3. Subsection (1) of section 34.01, Florida
  542  Statutes, is amended to read:
  543         34.01 Jurisdiction of county court.—
  544         (1) County courts shall have original jurisdiction:
  545         (a) In all misdemeanor cases not cognizable by the circuit
  546  courts;
  547         (b) Of all violations of municipal and county ordinances;
  548         (c) Of all actions at law in which the matter in
  549  controversy does not exceed the sum of $15,000, exclusive of
  550  interest, costs, and attorney attorney’s fees, except those
  551  within the exclusive jurisdiction of the circuit courts; and
  552         (d) Of disputes occurring in the homeowners’ associations
  553  as described in s. 720.311 s. 720.311(2)(a), which shall be
  554  concurrent with jurisdiction of the circuit courts.
  555         Section 4. Subsection (16) of section 718.117, Florida
  556  Statutes, is amended to read:
  557         718.117 Termination of condominium.—
  558         (16) RIGHT TO CONTEST.—A unit owner or lienor may contest a
  559  plan of termination by initiating a petition for mandatory
  560  nonbinding arbitration pursuant to s. 718.1255 within 90 days
  561  after the date the plan is recorded. A unit owner or lienor may
  562  only contest the fairness and reasonableness of the
  563  apportionment of the proceeds from the sale among the unit
  564  owners, that the liens of the first mortgages of unit owners
  565  other than the bulk owner have not or will not be satisfied to
  566  the extent required by subsection (3), or that the required vote
  567  to approve the plan was not obtained. A unit owner or lienor who
  568  does not contest the plan within the 90-day period is barred
  569  from asserting or prosecuting a claim against the association,
  570  the termination trustee, any unit owner, or any successor in
  571  interest to the condominium property. In an action contesting a
  572  plan of termination, the person contesting the plan has the
  573  burden of pleading and proving that the apportionment of the
  574  proceeds from the sale among the unit owners was not fair and
  575  reasonable or that the required vote was not obtained. The
  576  apportionment of sale proceeds is presumed fair and reasonable
  577  if it was determined pursuant to the methods prescribed in
  578  subsection (12). The community association hearing officer
  579  arbitrator shall determine the rights and interests of the
  580  parties in the apportionment of the sale proceeds. If the
  581  community association hearing officer arbitrator determines that
  582  the apportionment of sales proceeds is not fair and reasonable,
  583  the community association hearing officer arbitrator may void
  584  the plan or may modify the plan to apportion the proceeds in a
  585  fair and reasonable manner pursuant to this section based upon
  586  the proceedings and order the modified plan of termination to be
  587  implemented. If the community association hearing officer
  588  arbitrator determines that the plan was not properly approved,
  589  or that the procedures to adopt the plan were not properly
  590  followed, the community association hearing officer arbitrator
  591  may void the plan or grant other relief it deems just and
  592  proper. The community association hearing officer arbitrator
  593  shall automatically void the plan upon a finding that any of the
  594  disclosures required in subparagraph (3)(c)5. are omitted,
  595  misleading, incomplete, or inaccurate. Any challenge to a plan,
  596  other than a challenge that the required vote was not obtained,
  597  does not affect title to the condominium property or the vesting
  598  of the condominium property in the trustee, but shall only be a
  599  claim against the proceeds of the plan. In any such action, the
  600  prevailing party shall recover reasonable attorney fees and
  601  costs.
  602         Section 5. Paragraph (f) of subsection (1) of section
  603  719.106, Florida Statutes, is amended to read:
  604         719.106 Bylaws; cooperative ownership.—
  605         (1) MANDATORY PROVISIONS.—The bylaws or other cooperative
  606  documents shall provide for the following, and if they do not,
  607  they shall be deemed to include the following:
  608         (f) Recall of board members.—Subject to s. 719.301, any
  609  member of the board of administration may be recalled and
  610  removed from office with or without cause by the vote or
  611  agreement in writing by a majority of all the voting interests.
  612  A special meeting of the voting interests to recall any member
  613  of the board of administration may be called by 10 percent of
  614  the unit owners giving notice of the meeting as required for a
  615  meeting of unit owners, and the notice shall state the purpose
  616  of the meeting. Electronic transmission may not be used as a
  617  method of giving notice of a meeting called in whole or in part
  618  for this purpose.
  619         1. If the recall is approved by a majority of all voting
  620  interests by a vote at a meeting, the recall shall be effective
  621  as provided in this paragraph. The board shall duly notice and
  622  hold a board meeting within 5 full business days after the
  623  adjournment of the unit owner meeting to recall one or more
  624  board members. At the meeting, the board shall either certify
  625  the recall, in which case such member or members shall be
  626  recalled effective immediately and shall turn over to the board
  627  within 5 full business days any and all records and property of
  628  the association in their possession, or shall proceed as set
  629  forth in subparagraph 3.
  630         2. If the proposed recall is by an agreement in writing by
  631  a majority of all voting interests, the agreement in writing or
  632  a copy thereof shall be served on the association by certified
  633  mail or by personal service in the manner authorized by chapter
  634  48 and the Florida Rules of Civil Procedure. The board of
  635  administration shall duly notice and hold a meeting of the board
  636  within 5 full business days after receipt of the agreement in
  637  writing. At the meeting, the board shall either certify the
  638  written agreement to recall members of the board, in which case
  639  such members shall be recalled effective immediately and shall
  640  turn over to the board, within 5 full business days, any and all
  641  records and property of the association in their possession, or
  642  proceed as described in subparagraph 3.
  643         3. If the board determines not to certify the written
  644  agreement to recall members of the board, or does not certify
  645  the recall by a vote at a meeting, the board shall, within 5
  646  full business days after the board meeting, file with the
  647  division a petition for binding arbitration pursuant to the
  648  procedures of s. 719.1255. For purposes of this paragraph, the
  649  unit owners who voted at the meeting or who executed the
  650  agreement in writing shall constitute one party under the
  651  petition for arbitration. If the community association hearing
  652  officer arbitrator certifies the recall as to any member of the
  653  board, the recall shall be effective upon mailing of the final
  654  order of arbitration to the association. If the association
  655  fails to comply with the order of the community association
  656  hearing officer arbitrator, the division may take action
  657  pursuant to s. 719.501. Any member so recalled shall deliver to
  658  the board any and all records and property of the association in
  659  the member’s possession within 5 full business days after the
  660  effective date of the recall.
  661         4. If the board fails to duly notice and hold a board
  662  meeting within 5 full business days after service of an
  663  agreement in writing or within 5 full business days after the
  664  adjournment of the unit owner recall meeting, the recall shall
  665  be deemed effective and the board members so recalled shall
  666  immediately turn over to the board any and all records and
  667  property of the association.
  668         5. If the board fails to duly notice and hold the required
  669  meeting or fails to file the required petition, the unit owner
  670  representative may file a petition pursuant to s. 719.1255
  671  challenging the board’s failure to act. The petition must be
  672  filed within 60 days after the expiration of the applicable 5
  673  full-business-day period. The review of a petition under this
  674  subparagraph is limited to the sufficiency of service on the
  675  board and the facial validity of the written agreement or
  676  ballots filed.
  677         6. If a vacancy occurs on the board as a result of a recall
  678  and less than a majority of the board members are removed, the
  679  vacancy may be filled by the affirmative vote of a majority of
  680  the remaining directors, notwithstanding any provision to the
  681  contrary contained in this chapter. If vacancies occur on the
  682  board as a result of a recall and a majority or more of the
  683  board members are removed, the vacancies shall be filled in
  684  accordance with procedural rules to be adopted by the division,
  685  which rules need not be consistent with this chapter. The rules
  686  must provide procedures governing the conduct of the recall
  687  election as well as the operation of the association during the
  688  period after a recall but before the recall election.
  689         7. A board member who has been recalled may file a petition
  690  pursuant to s. 719.1255 challenging the validity of the recall.
  691  The petition must be filed within 60 days after the recall is
  692  deemed certified. The association and the unit owner
  693  representative shall be named as the respondents.
  694         8. The division may not accept for filing a recall
  695  petition, whether filed pursuant to subparagraph 1.,
  696  subparagraph 2., subparagraph 5., or subparagraph 7. and
  697  regardless of whether the recall was certified, when there are
  698  60 or fewer days until the scheduled reelection of the board
  699  member sought to be recalled or when 60 or fewer days have not
  700  elapsed since the election of the board member sought to be
  701  recalled.
  702         Section 6. Paragraph (d) of subsection (10) of section
  703  720.303, Florida Statutes, is amended to read:
  704         720.303 Association powers and duties; meetings of board;
  705  official records; budgets; financial reporting; association
  706  funds; recalls.—
  707         (10) RECALL OF DIRECTORS.—
  708         (d) If the board determines not to certify the written
  709  agreement or written ballots to recall a director or directors
  710  of the board or does not certify the recall by a vote at a
  711  meeting, the board shall, within 5 full business days after the
  712  meeting, file with the department a petition for binding
  713  arbitration pursuant to the applicable procedures in ss.
  714  718.112(2)(j) and 718.1255 and the rules adopted thereunder. For
  715  the purposes of this section, the members who voted at the
  716  meeting or who executed the agreement in writing shall
  717  constitute one party under the petition for arbitration. If the
  718  community association hearing officer arbitrator certifies the
  719  recall as to any director or directors of the board, the recall
  720  will be effective upon mailing of the final order of arbitration
  721  to the association. The director or directors so recalled shall
  722  deliver to the board any and all records of the association in
  723  their possession within 5 full business days after the effective
  724  date of the recall.
  725         Section 7. Paragraph (i) of subsection (2) of section
  726  723.078, Florida Statutes, is amended to read:
  727         723.078 Bylaws of homeowners’ associations.—
  728         (2) The bylaws shall provide and, if they do not, shall be
  729  deemed to include, the following provisions:
  730         (i) Recall of board members.—Any member of the board of
  731  directors may be recalled and removed from office with or
  732  without cause by the vote of or agreement in writing by a
  733  majority of all members. A special meeting of the members to
  734  recall a member or members of the board of directors may be
  735  called by 10 percent of the members giving notice of the meeting
  736  as required for a meeting of members, and the notice shall state
  737  the purpose of the meeting. Electronic transmission may not be
  738  used as a method of giving notice of a meeting called in whole
  739  or in part for this purpose.
  740         1. If the recall is approved by a majority of all members
  741  by a vote at a meeting, the recall is effective as provided in
  742  this paragraph. The board shall duly notice and hold a board
  743  meeting within 5 full business days after the adjournment of the
  744  member meeting to recall one or more board members. At the
  745  meeting, the board shall either certify the recall, in which
  746  case such member or members shall be recalled effective
  747  immediately and shall turn over to the board within 5 full
  748  business days any and all records and property of the
  749  association in their possession, or shall proceed under
  750  subparagraph 3.
  751         2. If the proposed recall is by an agreement in writing by
  752  a majority of all members, the agreement in writing or a copy
  753  thereof shall be served on the association by certified mail or
  754  by personal service in the manner authorized by chapter 48 and
  755  the Florida Rules of Civil Procedure. The board of directors
  756  shall duly notice and hold a meeting of the board within 5 full
  757  business days after receipt of the agreement in writing. At the
  758  meeting, the board shall either certify the written agreement to
  759  recall members of the board, in which case such members shall be
  760  recalled effective immediately and shall turn over to the board,
  761  within 5 full business days, any and all records and property of
  762  the association in their possession, or shall proceed as
  763  described in subparagraph 3.
  764         3. If the board determines not to certify the written
  765  agreement to recall members of the board, or does not certify
  766  the recall by a vote at a meeting, the board shall, within 5
  767  full business days after the board meeting, file with the
  768  division a petition for binding arbitration pursuant to the
  769  procedures of s. 723.1255. For purposes of this paragraph, the
  770  members who voted at the meeting or who executed the agreement
  771  in writing shall constitute one party under the petition for
  772  arbitration. If the community association hearing officer
  773  arbitrator certifies the recall of a member of the board, the
  774  recall shall be effective upon mailing of the final order of
  775  arbitration to the association. If the association fails to
  776  comply with the order of the community association hearing
  777  officer arbitrator, the division may take action under s.
  778  723.006. A member so recalled shall deliver to the board any and
  779  all records and property of the association in the member’s
  780  possession within 5 full business days after the effective date
  781  of the recall.
  782         4. If the board fails to duly notice and hold a board
  783  meeting within 5 full business days after service of an
  784  agreement in writing or within 5 full business days after the
  785  adjournment of the members’ recall meeting, the recall shall be
  786  deemed effective and the board members so recalled shall
  787  immediately turn over to the board all records and property of
  788  the association.
  789         5. If the board fails to duly notice and hold the required
  790  meeting or fails to file the required petition, the member’s
  791  representative may file a petition pursuant to s. 723.1255
  792  challenging the board’s failure to act. The petition must be
  793  filed within 60 days after expiration of the applicable 5-full
  794  business-day period. The review of a petition under this
  795  subparagraph is limited to the sufficiency of service on the
  796  board and the facial validity of the written agreement or
  797  ballots filed.
  798         6. If a vacancy occurs on the board as a result of a recall
  799  and less than a majority of the board members are removed, the
  800  vacancy may be filled by the affirmative vote of a majority of
  801  the remaining directors, notwithstanding any other provision of
  802  this chapter. If vacancies occur on the board as a result of a
  803  recall and a majority or more of the board members are removed,
  804  the vacancies shall be filled in accordance with procedural
  805  rules to be adopted by the division, which rules need not be
  806  consistent with this chapter. The rules must provide procedures
  807  governing the conduct of the recall election as well as the
  808  operation of the association during the period after a recall
  809  but before the recall election.
  810         7. A board member who has been recalled may file a petition
  811  pursuant to s. 723.1255 challenging the validity of the recall.
  812  The petition must be filed within 60 days after the recall is
  813  deemed certified. The association and the member’s
  814  representative shall be named as the respondents.
  815         8. The division may not accept for filing a recall
  816  petition, whether or not filed pursuant to this subsection, and
  817  regardless of whether the recall was certified, when there are
  818  60 or fewer days until the scheduled reelection of the board
  819  member sought to be recalled or when 60 or fewer days have not
  820  elapsed since the election of the board member sought to be
  821  recalled.
  822         Section 8. This act shall take effect July 1, 2018.