1 |
A bill to be entitled |
2 |
An act relating to Home Court Advantage
Pilot Program; |
3 |
providing legislative intent; providing
definitions; |
4 |
requesting the chief judges of the
Thirteenth and Sixth |
5 |
Judicial Circuits to adopt certain rules
and procedures |
6 |
for the establishment of the pilot
program in Hillsborough |
7 |
County and Pinellas County,
respectively, for the purpose |
8 |
of resolving disputes relating to deed
restrictions or |
9 |
covenants in deed-restricted
communities; requiring a |
10 |
report; providing for jurisdiction,
filing and complaint |
11 |
procedures, appeals, qualifications,
compensation and |
12 |
terms of service, and code of ethics;
providing for |
13 |
nonseverability; providing an effective
date. |
14 |
|
15 |
Be It Enacted by the Legislature of the
State of Florida: |
16 |
|
17 |
Section
1. Legislative intent.--It is the intent of the |
18 |
Legislature to
establish the Home Court Advantage Pilot Program |
19 |
as a pilot program in
Hillsborough and Pinellas Counties for a |
20 |
period of 1 year. The
purpose of the Home Court Advantage Pilot |
21 |
Program is to
establish an inexpensive, expedient, simplified |
22 |
court procedure as an
independent venue for ownership or |
23 |
management entities
in deed-restricted communities to resolve |
24 |
disputes relating to
deed restrictions or covenants informally |
25 |
without the
restrictions and procedures required for formal |
26 |
actions in circuit
court. The Home Court Advantage Pilot Program |
27 |
shall be implemented
and administered by the chief judge of the |
28 |
Thirteenth Judicial
Circuit in Hillsborough County and the chief |
29 |
judge of the Sixth
Judicial Circuit in Pinellas County, subject |
30 |
to the supervision of
the Supreme Court. |
31 |
Section 2. Definitions.-- |
32 |
(1) "Community
association" has the same meaning as |
33 |
provided in s.
468.431(1), Florida Statutes. |
34 |
(2) "Community
association manager" has the same meaning |
35 |
as provided in s.
468.431(3), Florida Statutes. |
36 |
(3) "Complainant"
means a party filing a complaint in home |
37 |
court. |
38 |
(4) "Complaint"
means an allegation by: |
39 |
(a) A
homeowners' association, condominium unit owners' |
40 |
association,
cooperative association, community development |
41 |
district, or civic
association that a property owner in a deed- |
42 |
restricted community
is violating one or more restrictions that |
43 |
apply to the
property; or |
44 |
(b) A
homeowner, condominium unit owner, member of a |
45 |
cooperative, resident
of a community development district, or |
46 |
property owner in any
deed-restricted community in which the |
47 |
respective
association or district is selectively enforcing a |
48 |
deed restriction or
covenant or is improperly or unlawfully |
49 |
seeking to enforce a
deed restriction or covenant. |
50 |
(5) "Deed-restricted
community" means a residential |
51 |
community,
condominium, cooperative, or community development |
52 |
district in which the
properties in the community are subject to |
53 |
limitations or
restrictions on or covenants restricting the use, |
54 |
design, or operation
of properties in the community. |
55 |
(6) "Defendant"
means a party against whom a complaint is |
56 |
filed in home court. |
57 |
Section 3. Objectives.--The
chief judges of the Thirteenth |
58 |
and Sixth Judicial
Circuits may adopt rules and procedures for |
59 |
the establishment and
operation of the Home Court Advantage |
60 |
Pilot Program in
Hillsborough County and Pinellas County, |
61 |
respectively. The
chief judges shall report to the Supreme Court |
62 |
at the end of the
program an analysis of the operation and |
63 |
results of the
program. The Chief Justice of the Supreme Court |
64 |
shall review the
reports and make determinations and |
65 |
recommendations to
the Legislature by February 1, 2009, on the |
66 |
feasibility of
establishing a statewide program and provide |
67 |
copies of the reports
to the Speaker of the House of |
68 |
Representatives, the
President of the Senate, and the minority |
69 |
leader of each house
of the Legislature. |
70 |
Section 4. Jurisdiction;
limitations.-- |
71 |
(1) Home
court magistrates may be empowered to accept |
72 |
complaints about and
decide the reasonableness of any |
73 |
restriction imposed
pursuant to a deed to real property or fine |
74 |
imposed for a failure
to comply with a deed restriction and may |
75 |
be empowered to issue
orders, impose fines, and authorize the |
76 |
imposition of a lien
on real property in the same manner as a |
77 |
circuit court judge
under the laws, rules, and procedures |
78 |
presently existing or
as subsequently amended, except that home |
79 |
court magistrates may
not: |
80 |
(a) Hold
a party in contempt of court but may file a |
81 |
motion for order of
contempt with the appropriate state circuit |
82 |
court judge; or |
83 |
(b) Hear
a case involving any dispute other than a deed |
84 |
restriction. |
85 |
(2) This
section does not prohibit a circuit court judge |
86 |
from exercising
concurrent jurisdiction with a home court |
87 |
magistrate. |
88 |
Section 5. Filing
and complaint procedures.-- |
89 |
(1) Any
party may file, on its own behalf or through an |
90 |
attorney appointed by
a party as attorney in fact, a complaint |
91 |
in home court
alleging a violation of a deed restriction or |
92 |
covenant and seeking
enforcement of the restriction or covenant |
93 |
or alleging unlawful
enforcement of a deed restriction or |
94 |
covenant and seeking
an injunction against such unlawful |
95 |
enforcement. A
property owner in a deed-restricted community for |
96 |
which there is a
community association may appoint the community |
97 |
association as his or
her attorney in fact, pursuant to the |
98 |
provisions of s.
709.08, Florida Statutes, for the purposes of |
99 |
filing an action
against another property owner in the deed- |
100 |
restricted community,
or a member or officer of a homeowners' |
101 |
association of the
community if there is one, seeking |
102 |
enforcement of a
restriction or covenant or alleging unlawful |
103 |
enforcement of a
restriction or covenant. The complainant shall |
104 |
pay a $75 filing fee
to the home court. The complaint shall |
105 |
contain a completed
checklist specifying: |
106 |
(a) What
restriction or covenant is being violated. |
107 |
(b) When
the violation occurred or began and if the |
108 |
violation is
continuing. |
109 |
(c) Whether
the party in violation of the restriction or |
110 |
covenant was provided
notice of the violation and, if so: |
111 |
1. When
the notice was provided. |
112 |
2. If
the notice was in writing. |
113 |
(d) Whether
the party in violation was provided an |
114 |
opportunity to comply
with the restriction or covenant or cure |
115 |
the violation. |
116 |
(e) Whether
the attempt to enforce the restriction or |
117 |
covenant was
selectively enforced or improper. |
118 |
(f) Whether
there were any special considerations relating |
119 |
to the failure to
comply with the restriction or covenant. |
120 |
(g) The
remedy being sought against the party in |
121 |
violation. |
122 |
(2) Upon
filing proof of service of the complaint, a home |
123 |
court magistrate
shall issue an order requiring the complainant |
124 |
and the defendant to
appear for a final hearing within 60 days |
125 |
after receipt of
service of the complaint. The defendant shall |
126 |
provide to the
complainant a copy of the defendant's response to |
127 |
the notice to comply
at least 10 days prior to the final |
128 |
hearing. |
129 |
(3)(a) Within
30 days after the home court magistrate |
130 |
issues an order
requiring the final hearing, the parties shall |
131 |
be required to attend
mediation conducted pursuant to the rules |
132 |
of practice and
procedure adopted by the Supreme Court pursuant |
133 |
to s. 44.102, Florida
Statutes. |
134 |
(b) The
parties to the mediation shall provide copies of |
135 |
the documents
referenced in the checklist in subsection (1). |
136 |
(c) Upon
the showing of good cause, the home court |
137 |
magistrate may
continue the hearing to require the parties to |
138 |
produce additional
information and documentation. The parties |
139 |
shall provide any
additional information or documentation |
140 |
required by the home
court magistrate within 15 days after the |
141 |
home court
magistrate's request. |
142 |
(d) The
home court magistrate shall make findings of |
143 |
reasonableness of the
restriction or covenant and any fines to |
144 |
be imposed under the
restriction. The home court magistrate |
145 |
shall rule on the
validity of the restriction and the fine |
146 |
imposed by the
community association. |
147 |
(e) The
purpose of the hearing shall be the issuance of an |
148 |
order by the home
court magistrate imposing a fine on the party |
149 |
in violation,
compelling the party in violation to comply with |
150 |
the restriction, and
enjoining the party in violation from |
151 |
continuing the
violation. The party in violation shall have 30 |
152 |
days to comply with
the order unless good cause is shown to the |
153 |
home court magistrate
why a longer period should be allowed. |
154 |
(f) The
maximum fine the home court magistrate may impose |
155 |
is the fine alleged
by the party bringing the complaint. The |
156 |
home court magistrate
may reduce the fine. The fine shall be |
157 |
paid to and retained
by the home court program. If the action |
158 |
for compliance is for
dues or special assessments, the amount of |
159 |
the dues or special
assessments shall be paid to the community |
160 |
association, minus 10
percent of such amount to be retained by |
161 |
the home court
program for purposes of administering the |
162 |
program. |
163 |
(4) If
the party in violation does not comply with the |
164 |
home court
magistrate's order within 30 days after the order is |
165 |
issued and, prior to
the expiration of the 30-day period, good |
166 |
cause has not been
shown to the home court magistrate for |
167 |
extending the period,
or within the period of an extension of |
168 |
the 30-day period if
good cause has been shown to the home court |
169 |
magistrate for
extending the period and the home court |
170 |
magistrate grants an
extension, and the violation of the deed |
171 |
restriction or
covenant is monetary, notwithstanding the |
172 |
limitations of
chapter 713, Florida Statutes, s. 720.305, |
173 |
Florida Statutes, or
any other provision of law restricting the |
174 |
perfecting of a lien
on real property, the complainant may file |
175 |
a lien to be placed
upon the property for all amounts included |
176 |
in the home court
magistrate's order plus filing fees and costs |
177 |
for bringing the
action. |
178 |
(5)(a) Upon
application to the home court by a party to |
179 |
the mediation or the
mediator, a home court magistrate, in the |
180 |
course of his or her
jurisdiction, may issue subpoenas for the |
181 |
attendance of
necessary and material witnesses and for the |
182 |
production of books,
records, documents, and other evidence and |
183 |
may administer oaths.
Subpoenas shall be served and enforced in |
184 |
the manner provided
by law for the service and enforcement of |
185 |
subpoenas in a civil
action. A party or mediator applying to the |
186 |
home court for
issuance of a subpoena shall provide to the court |
187 |
a separate envelope
for each person the party or mediator |
188 |
requests the home
court magistrate to subpoena. The envelope |
189 |
shall be addressed to
the person and have the postage paid for |
190 |
certified, return
receipt requested, mail. The home court |
191 |
magistrate shall mail
the subpoena to the person subject to the |
192 |
subpoena. |
193 |
(b) Upon
application of a party to the mediation and for |
194 |
use as evidence, the
mediator, in the course of his or her |
195 |
jurisdiction, may
permit a deposition to be taken of a witness |
196 |
who cannot be
subpoenaed or is unable to attend the mediation in |
197 |
the manner and upon
the terms designated by the mediator. All |
198 |
provisions of law
compelling a person under subpoena to testify |
199 |
apply to the
deposition. |
200 |
(6) This
section does not limit the rights of the parties |
201 |
to seek injunctive
relief in circuit court to compel compliance. |
202 |
Section
6. Appeals.--An order of a home court magistrate |
203 |
may be appealed,
under the rules of court, to the circuit court. |
204 |
The appeal shall be
based upon the record of the hearing before |
205 |
the home court
magistrate and shall not be a hearing de novo. |
206 |
The appellant is
responsible for producing the record of the |
207 |
hearing beyond that
which normally results from the home court |
208 |
hearing process. |
209 |
Section 7. Qualifications.--An
applicant for the position |
210 |
of home court
magistrate shall be a member in good standing of |
211 |
The Florida Bar with
at least 5 years of experience in |
212 |
litigation actions
involving enforcement of deed restrictions or |
213 |
covenants or be a
community association manager licensed under |
214 |
s. 468.433, Florida
Statutes. |
215 |
Section
8. Compensation; terms of service.--A home court |
216 |
magistrate is an
independent contractor and shall serve without |
217 |
compensation and at
the pleasure of the chief judge of the |
218 |
judicial circuit in
which he or she is to hear cases. |
219 |
Section 9. Code
of ethics.--A home court magistrate is |
220 |
subject to the Code
of Ethics for Arbitrators in Commercial |
221 |
Disputes published by
the American Arbitration Association or |
222 |
the standards and
procedures for professional conduct and |
223 |
discipline for
mediators and arbitrators established by the |
224 |
Supreme Court
pursuant to s. 44.106, Florida Statutes. A home |
225 |
court magistrate is
not subject to the Judicial Code of Ethics, |
226 |
except a home court
magistrate shall avoid practices or |
227 |
occupations that
would constitute a conflict of interest or give |
228 |
the appearance of
impropriety. Whether serving full time or part |
229 |
time, a home court
magistrate is prohibited from representing |
230 |
clients or practicing
before any other home court or from |
231 |
representing any
client appealing the decision of any other home |
232 |
court magistrate. A
home court magistrate appointed under |
233 |
section 1 has
judicial immunity in the same manner and to the |
234 |
same extent as
judges. |
235 |
Section
10. Nonseverability.--If the
provisions of section |
236 |
4 authorizing home
court magistrates to impose sanctions are |
237 |
found to be
unconstitutional by the Supreme Court, the home |
238 |
court magistrates
shall have no further jurisdiction over civil |
239 |
infractions. |
240 |
Section
11. This act shall take effect July 1, 2007. |