DIVISION WANTS TO CHARGE EXTRA FOR HOA ARBITRATION

An Opinion By Jan Bergemann
President, Cyber Citizens For Justice, Inc.

Published September 2, 2009

There isn't a day that passes by in Florida where the DBPR isn't up to something detrimental to the taxpaying citizens! The service of the DBPR plainly stinks, their professional regulation is useless and the licensees they are supposedly regulating are running wild. One of the main reasons for Florida being the SCAM CAPITAL OF THE WORLD is the ineffectiveness of the DBPR!

Since Secretary Charles Drago took over, we see the services that are supposed to be supplied by this government agency totally deteriorating. The employees are running wild, do whatever they want -- and Secretary Charles Drago and Governor Charlie Crist are covering up for them.

The DBPR shenanigans are getting more and more outrageous. The latest weird idea: They want to charge extra for HOA election and recall arbitration. Unhappy with the $200 the legislature granted them in FS 720.311(1) they are now pushing rules that allow them to charge homeowners outrageous fees for horrible service. Since Chief Arbitrator James Earl took over, arbitrations have gone wild! The outcome of arbitration cases can't be predicted any more, since filing for arbitration with the arbitrators of the Division of Florida Condominiums, Timeshares, and Mobile Homes resembles more a crap shoot and the final ruling has often little to do with the wording of the Florida statutes.

This proposed rule is another step the Division is taking to destroy legislative intent. When the legislature decided to charge a $200 filing fee for election and recall arbitrations for homeowners’ associations regulated by FS 720, the idea behind it was that recall and election cases were reasonably simple decisions based on straight numbers. Election votes and recall petitions had to be validated, the number of valid votes or recall petitions counted and the result was in. It was estimated that these cases could be discarded within 5 hours without a problem (5 hours @ $40 an hour = $200).

But that was then, when arbitrators plainly followed the statutes and rules without inventing ambitious interpretations or invented wording in statutes that doesn't exist. Now rulings take forever, fancy case management conferences are called and arbitrators will endlessly listen to attorneys who come up with new inventions to draw out the process.

I wonder why Chief Arbitrator James Earl didn't make special arrangements for cost for his pet project -- the reversed recall -- in this proposed rule. He loves to sic legal fees on homeowners, even allowing attorneys to add cost from other pending cases. This new invention -- patented by James Earl -- makes an election dispute out of the recall of a board minority, even if it all started with official recall petition forms. Only in the arbitration section of the Division of Flori-duh Condominiums, Timeshares, and Mobile Homes!

Notice of Proposed Rule

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
Division of Florida Condominiums, Timeshares and Mobile Homes

RULE NO: RULE TITLE
61B-80.124: Department Fee.

PURPOSE AND EFFECT: This rule provides for the recovery of division fees and costs incurred in the implementation of the homeowners’ association arbitration program.

SUMMARY: This rule addresses the alternative dispute resolution program administered by the Division of Florida Condominiums, Timeshares, and Mobile Homes for homeowner association election and recall disputes.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

SPECIFIC AUTHORITY: 720.311 FS.
LAW IMPLEMENTED: 720.311 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: September 21, 2009, 9:00 a.m.
PLACE: The Northwood Centre, Suite 16, Conference Room, 1940 N. Monroe Street, Tallahassee, Florida

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 48 hours before the workshop/meeting by contacting: Sharon A. Malloy, Senior Management Analyst II at (850)488-1631. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Sharon A. Malloy, Senior Management Analyst II, Division of Florida Condominiums, Timeshares, and Mobile Homes, 1940 North Monroe Street , Tallahassee , Florida 32311-1030 , (850)488-1631

THE FULL TEXT OF THE PROPOSED RULE IS:

61B-80.124 Department Fee.

(1) The department fee will be an amount adequate to cover all costs and expenses incurred by the department in conducting an arbitration proceeding pursuant to Section 720.311, F.S.

(2) The fee shall be the sum of the following costs:

(a) The sum of the “Labor Cost” for all employees who perform work on the case. The “Labor Cost” for an employee shall be calculated as follows: [(P x 1.35)/W] x H. Where P = the biweekly pay of the lowest pay grade for the employee’s position title; 1.35 is a multiplier that takes into account the cost of pay and benefits for an employee; W = the biweekly contract hours for the employee; and H = hours directly related to the arbitration proceeding worked by the employee.

(b) The cost a contractor charges the department for any work directly related to the arbitration proceeding.

(c) Other proceeding costs directly related to the proceeding. For example direct costs include, but are not limited to, travel, long distance charges and photocopy expenses.

(3) If the arbitration proceeding involves an election dispute, petitioner and respondent shall be charged an equal share of the department’s fee. Where the arbitration dispute involves a recall dispute, only the association shall be charged the department’s fee.

(4) The department will send the party or parties an invoice for the department’s fee. The petitioner and respondent shall pay the fee within thirty days of the date of the invoice. The department’s acceptance of less than full payment by a party shall not be considered a waiver of its right to the full amount of the fee. The department’s acceptance of the payment by one party does not relieve the other party or parties from payment of their share of the fee.

(5) The department shall have the right to collect any unpaid fee to the fullest extent permitted by the laws of this state.

Rulemaking Authority 720.311(1) FS. Law Implemented 720.311(1) FS. History–New

NAME OF PERSON ORIGINATING PROPOSED RULE: Michael Cochran, Director, Division of Florida Condominiums, Timeshares, and Mobile Homes, 1940 North Monroe Street, Tallahassee, Florida 32399-1030
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE:

Charles W. Drago, Secretary, Department of Business and Professional Regulation
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: August 14, 2009
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: June 5, 2009

But since the DBPR considers Florida 's citizens their customers, we citizens should have as well the right of free choice that customers normally have. The DBPR can dare to provide a horrible service and still get paid. Now they want to squeeze even more money out of homeowners. People are absolutely willing to pay more for good and timely service. But the way the Division arbitrators treat recall and election cases, homeowners instead should get a refund on the $200 filing fee they are forced to pay! Some of these cases last more than 6 months; others are declared moot because the next annual election is already on the way. And the rulings these owners have to wait for so long? Don't ask -- some plainly don't make sense!

If our government officials in charge of the DBPR can't straighten out this government agency, our elected officials should remove FS 720.311 from the HOA statutes and allow homeowners to go directly to court. It surely would save Florida's homeowners lots of time, money and frustration!