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A bill to be entitled |
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An act relating to Home Court Advantage
Pilot Program; |
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providing legislative intent; providing
definitions; |
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requesting the chief judges of the
Thirteenth and Sixth |
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Judicial Circuits to adopt certain rules
and procedures |
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for the establishment of the pilot
program in Hillsborough |
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County and Pinellas County,
respectively, for the purpose |
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of resolving disputes relating to deed
restrictions or |
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covenants in deed-restricted
communities; requiring a |
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report; providing for jurisdiction,
filing and complaint |
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procedures, appeals, qualifications,
compensation and |
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terms of service, and code of ethics;
providing for |
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nonseverability; providing an effective
date. |
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|
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Be It Enacted by the Legislature of the
State of Florida: |
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|
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Section
1. Legislative intent.--It is the intent of the |
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Legislature to
establish the Home Court Advantage Pilot Program |
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as a pilot program in
Hillsborough and Pinellas Counties for a |
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period of 1 year. The
purpose of the Home Court Advantage Pilot |
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Program is to
establish an inexpensive, expedient, simplified |
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court procedure as an
independent venue for ownership or |
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management entities
in deed-restricted communities to resolve |
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disputes relating to
deed restrictions or covenants informally |
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without the
restrictions and procedures required for formal |
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actions in circuit
court. The Home Court Advantage Pilot Program |
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shall be implemented
and administered by the chief judge of the |
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Thirteenth Judicial
Circuit in Hillsborough County and the chief |
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judge of the Sixth
Judicial Circuit in Pinellas County, subject |
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to the supervision of
the Supreme Court. |
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Section 2. Definitions.-- |
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(1) "Community
association" has the same meaning as |
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provided in s.
468.431(1), Florida Statutes. |
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(2) "Community
association manager" has the same meaning |
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as provided in s.
468.431(3), Florida Statutes. |
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(3) "Complainant"
means a party filing a complaint in home |
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court. |
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(4) "Complaint"
means an allegation by: |
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(a) A
homeowners' association, condominium unit owners' |
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association,
cooperative association, community development |
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district, or civic
association that a property owner in a deed- |
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restricted community
is violating one or more restrictions that |
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apply to the
property; or |
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(b) A
homeowner, condominium unit owner, member of a |
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cooperative, resident
of a community development district, or |
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property owner in any
deed-restricted community in which the |
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respective
association or district is selectively enforcing a |
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deed restriction or
covenant or is improperly or unlawfully |
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seeking to enforce a
deed restriction or covenant. |
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(5) "Deed-restricted
community" means a residential |
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community,
condominium, cooperative, or community development |
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district in which the
properties in the community are subject to |
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limitations or
restrictions on or covenants restricting the use, |
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design, or operation
of properties in the community. |
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(6) "Defendant"
means a party against whom a complaint is |
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filed in home court. |
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Section 3. Objectives.--The
chief judges of the Thirteenth |
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and Sixth Judicial
Circuits may adopt rules and procedures for |
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the establishment and
operation of the Home Court Advantage |
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Pilot Program in
Hillsborough County and Pinellas County, |
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respectively. The
chief judges shall report to the Supreme Court |
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at the end of the
program an analysis of the operation and |
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results of the
program. The Chief Justice of the Supreme Court |
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shall review the
reports and make determinations and |
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recommendations to
the Legislature by February 1, 2009, on the |
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feasibility of
establishing a statewide program and provide |
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copies of the reports
to the Speaker of the House of |
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Representatives, the
President of the Senate, and the minority |
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leader of each house
of the Legislature. |
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Section 4. Jurisdiction;
limitations.-- |
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(1) Home
court magistrates may be empowered to accept |
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complaints about and
decide the reasonableness of any |
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restriction imposed
pursuant to a deed to real property or fine |
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imposed for a failure
to comply with a deed restriction and may |
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be empowered to issue
orders, impose fines, and authorize the |
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imposition of a lien
on real property in the same manner as a |
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circuit court judge
under the laws, rules, and procedures |
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presently existing or
as subsequently amended, except that home |
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court magistrates may
not: |
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(a) Hold
a party in contempt of court but may file a |
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motion for order of
contempt with the appropriate state circuit |
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court judge; or |
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(b) Hear
a case involving any dispute other than a deed |
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restriction. |
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(2) This
section does not prohibit a circuit court judge |
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from exercising
concurrent jurisdiction with a home court |
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magistrate. |
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Section 5. Filing
and complaint procedures.-- |
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(1) Any
party may file, on its own behalf or through an |
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attorney appointed by
a party as attorney in fact, a complaint |
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in home court
alleging a violation of a deed restriction or |
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covenant and seeking
enforcement of the restriction or covenant |
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or alleging unlawful
enforcement of a deed restriction or |
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covenant and seeking
an injunction against such unlawful |
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enforcement. A
property owner in a deed-restricted community for |
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which there is a
community association may appoint the community |
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association as his or
her attorney in fact, pursuant to the |
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provisions of s.
709.08, Florida Statutes, for the purposes of |
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filing an action
against another property owner in the deed- |
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restricted community,
or a member or officer of a homeowners' |
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association of the
community if there is one, seeking |
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enforcement of a
restriction or covenant or alleging unlawful |
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enforcement of a
restriction or covenant. The complainant shall |
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pay a $75 filing fee
to the home court. The complaint shall |
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contain a completed
checklist specifying: |
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(a) What
restriction or covenant is being violated. |
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(b) When
the violation occurred or began and if the |
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violation is
continuing. |
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(c) Whether
the party in violation of the restriction or |
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covenant was provided
notice of the violation and, if so: |
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1. When
the notice was provided. |
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2. If
the notice was in writing. |
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(d) Whether
the party in violation was provided an |
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opportunity to comply
with the restriction or covenant or cure |
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the violation. |
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(e) Whether
the attempt to enforce the restriction or |
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covenant was
selectively enforced or improper. |
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(f) Whether
there were any special considerations relating |
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to the failure to
comply with the restriction or covenant. |
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(g) The
remedy being sought against the party in |
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violation. |
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(2) Upon
filing proof of service of the complaint, a home |
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court magistrate
shall issue an order requiring the complainant |
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and the defendant to
appear for a final hearing within 60 days |
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after receipt of
service of the complaint. The defendant shall |
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provide to the
complainant a copy of the defendant's response to |
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the notice to comply
at least 10 days prior to the final |
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hearing. |
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(3)(a) Within
30 days after the home court magistrate |
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issues an order
requiring the final hearing, the parties shall |
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be required to attend
mediation conducted pursuant to the rules |
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of practice and
procedure adopted by the Supreme Court pursuant |
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to s. 44.102, Florida
Statutes. |
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(b) The
parties to the mediation shall provide copies of |
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the documents
referenced in the checklist in subsection (1). |
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(c) Upon
the showing of good cause, the home court |
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magistrate may
continue the hearing to require the parties to |
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produce additional
information and documentation. The parties |
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shall provide any
additional information or documentation |
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required by the home
court magistrate within 15 days after the |
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home court
magistrate's request. |
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(d) The
home court magistrate shall make findings of |
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reasonableness of the
restriction or covenant and any fines to |
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be imposed under the
restriction. The home court magistrate |
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shall rule on the
validity of the restriction and the fine |
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imposed by the
community association. |
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(e) The
purpose of the hearing shall be the issuance of an |
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order by the home
court magistrate imposing a fine on the party |
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in violation,
compelling the party in violation to comply with |
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the restriction, and
enjoining the party in violation from |
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continuing the
violation. The party in violation shall have 30 |
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days to comply with
the order unless good cause is shown to the |
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home court magistrate
why a longer period should be allowed. |
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(f) The
maximum fine the home court magistrate may impose |
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is the fine alleged
by the party bringing the complaint. The |
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home court magistrate
may reduce the fine. The fine shall be |
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paid to and retained
by the home court program. If the action |
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for compliance is for
dues or special assessments, the amount of |
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the dues or special
assessments shall be paid to the community |
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association, minus 10
percent of such amount to be retained by |
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the home court
program for purposes of administering the |
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program. |
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(4) If
the party in violation does not comply with the |
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home court
magistrate's order within 30 days after the order is |
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issued and, prior to
the expiration of the 30-day period, good |
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cause has not been
shown to the home court magistrate for |
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extending the period,
or within the period of an extension of |
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the 30-day period if
good cause has been shown to the home court |
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magistrate for
extending the period and the home court |
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magistrate grants an
extension, and the violation of the deed |
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restriction or
covenant is monetary, notwithstanding the |
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limitations of
chapter 713, Florida Statutes, s. 720.305, |
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Florida Statutes, or
any other provision of law restricting the |
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perfecting of a lien
on real property, the complainant may file |
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a lien to be placed
upon the property for all amounts included |
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in the home court
magistrate's order plus filing fees and costs |
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for bringing the
action. |
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(5)(a) Upon
application to the home court by a party to |
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the mediation or the
mediator, a home court magistrate, in the |
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course of his or her
jurisdiction, may issue subpoenas for the |
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attendance of
necessary and material witnesses and for the |
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production of books,
records, documents, and other evidence and |
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may administer oaths.
Subpoenas shall be served and enforced in |
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the manner provided
by law for the service and enforcement of |
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subpoenas in a civil
action. A party or mediator applying to the |
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home court for
issuance of a subpoena shall provide to the court |
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a separate envelope
for each person the party or mediator |
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requests the home
court magistrate to subpoena. The envelope |
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shall be addressed to
the person and have the postage paid for |
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certified, return
receipt requested, mail. The home court |
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magistrate shall mail
the subpoena to the person subject to the |
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subpoena. |
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(b) Upon
application of a party to the mediation and for |
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use as evidence, the
mediator, in the course of his or her |
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jurisdiction, may
permit a deposition to be taken of a witness |
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who cannot be
subpoenaed or is unable to attend the mediation in |
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the manner and upon
the terms designated by the mediator. All |
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provisions of law
compelling a person under subpoena to testify |
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apply to the
deposition. |
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(6) This
section does not limit the rights of the parties |
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to seek injunctive
relief in circuit court to compel compliance. |
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Section
6. Appeals.--An order of a home court magistrate |
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may be appealed,
under the rules of court, to the circuit court. |
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The appeal shall be
based upon the record of the hearing before |
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the home court
magistrate and shall not be a hearing de novo. |
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The appellant is
responsible for producing the record of the |
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hearing beyond that
which normally results from the home court |
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hearing process. |
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Section 7. Qualifications.--An
applicant for the position |
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of home court
magistrate shall be a member in good standing of |
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The Florida Bar with
at least 5 years of experience in |
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litigation actions
involving enforcement of deed restrictions or |
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covenants or be a
community association manager licensed under |
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s. 468.433, Florida
Statutes. |
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Section
8. Compensation; terms of service.--A home court |
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magistrate is an
independent contractor and shall serve without |
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compensation and at
the pleasure of the chief judge of the |
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judicial circuit in
which he or she is to hear cases. |
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Section 9. Code
of ethics.--A home court magistrate is |
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subject to the Code
of Ethics for Arbitrators in Commercial |
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Disputes published by
the American Arbitration Association or |
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the standards and
procedures for professional conduct and |
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discipline for
mediators and arbitrators established by the |
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Supreme Court
pursuant to s. 44.106, Florida Statutes. A home |
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court magistrate is
not subject to the Judicial Code of Ethics, |
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except a home court
magistrate shall avoid practices or |
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occupations that
would constitute a conflict of interest or give |
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the appearance of
impropriety. Whether serving full time or part |
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time, a home court
magistrate is prohibited from representing |
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clients or practicing
before any other home court or from |
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representing any
client appealing the decision of any other home |
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court magistrate. A
home court magistrate appointed under |
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section 1 has
judicial immunity in the same manner and to the |
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same extent as
judges. |
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Section
10. Nonseverability.--If the
provisions of section |
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4 authorizing home
court magistrates to impose sanctions are |
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found to be
unconstitutional by the Supreme Court, the home |
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court magistrates
shall have no further jurisdiction over civil |
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infractions. |
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Section
11. This act shall take effect July 1, 2007. |