An act relating to condominiums and cooperatives; amending s. 718.1255, F.S.;
providing and limiting arbitration of disputes by the Division of Florida Land Sales,
Condominiums, and Mobile Homes to those regarding elections and the recall of board members; deleting reference to voluntary mediation; providing for the resolution of
certain other complaints at the local level; providing exemptions; requiring the
continuation of arbitration of cases filed by acertain date; providing a contingent
appropriation; providing an effective date.

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

Section 1.  Section 718.1255, Florida Statutes, is amended to read:
  718.1255  Alternative dispute resolution; voluntary mediation; mandatory nonbinding arbitration and mediation;local resolution; exemptions; legislative findings.--
(1)  APPLICABILITY DEFINITIONS.--
(a)  The provisions of subsection (3) apply to As used in this section, the term "dispute" means any disagreement between two or more parties that involves:
(a)  The authority of the board of directors, under this chapter or association document to:
1.  Require any owner to take any action, or not to take any action, involving that owner's unit or the appurtenances thereto.
 2.  Alter or add to a common area or element.
(b)  the failure of a governing body, when required by this chapter or an association document, to:
1.  properly conduct elections or to recall a boardmember.
(b)  The provisions of subsection (4) apply to any disagreement between two or more parties that involves:
1.  The authority of the board of directors, under this chapter or an association document, to: a.  Require any owner to take any action, or not to take any action, involving that owner's unit or the appurtenances thereto; or
b.  Alter or add to a common area or element.
2.  The failure of a governing body, when required by this chapter or an association document, to:
a.2.  Give adequate notice of meetings or other actions
b.3.  Properly conduct meetings; or.
c.4.  Allow inspection of books and records.
"Dispute" does not include any disagreement that primarily involves: title to any unit or common element; the interpretation or enforcement of any warranty; the levy of a
fee or assessment, or the collection of an assessment levied against a party; the eviction or other removal of a tenant from a unit; alleged breaches of fiduciary duty by one or more directors; or claims for damages to a unit based upon the
alleged failure of the association to maintain the common elements or condominium property.
(2)  VOLUNTARY MEDIATION.--Voluntary mediation through Citizen Dispute Settlement Centers as provided for in s. 44.201 is encouraged.
(2)(3)  LEGISLATIVE FINDINGS.--
(a)  The Legislature finds that unit owners are frequently at a disadvantage when litigating against an association. Specifically, a condominium association, with its
statutory assessment authority, is often more able to bear the costs and expenses of litigation than the unit owner who must rely on his or her own financial resources to satisfy the costs of litigation against the association.
(b)  The Legislature finds that the courts are becoming overcrowded with condominium and other disputes, and further finds that alternative dispute resolution has been making progress in reducing court dockets and trials and in offering a more efficient, cost-effective option to court litigation.
However, the Legislature also finds that alternative dispute resolution should not be used as a mechanism to encourage the filing of frivolous or nuisance suits.
(c)  There exists a need to develop a flexible means of alternative dispute resolution that directs disputes to the most efficient means of resolution.
(d)  The high cost and significant delay of circuit court litigation faced by unit owners in the state can be alleviated by requiring nonbinding arbitration and mediation in appropriate cases, thereby reducing delay and attorney's fees while preserving the right of either party to have its case heard by a jury, if applicable, in a court of law.
(3)(4)  MANDATORY NONBINDING ARBITRATION AND MEDIATION
OF DISPUTES.--
The Division of Florida Land Sales, Condominiums, and Mobile Homes of the Department of Business and Professional Regulation shall provide employ full-time
attorneys to act as arbitrators to conduct the arbitration hearings as required provided by this chapter. The department may employ attorneys to act as arbitrators, and the division may also certify attorneys who are not employed by the division to act as arbitrators to conduct the arbitration hearings provided by this chapter section. No person may be employed by the department as an a full-time arbitrator unless
he or she is a member in good standing of The Florida Bar. The department shall promulgate rules of procedure to govern such arbitration hearings including mediation incident thereto.
The decision of an arbitrator shall be final; however, such a decision shall not be deemed final agency action. Nothing in this provision shall be construed to foreclose parties from proceeding in a trial de novo unless the parties have agreed that the arbitration is binding. If such judicial proceedings are initiated, the final decision of the arbitrator shall be admissible in evidence in the trial de novo.
         (a)  Prior to the institution of court litigation, a party to a dispute shall petition the division for nonbinding arbitration.  The petition must be accompanied by a filing fee
in the amount of $50.  Filing fees collected under this section must be used to defray the expenses of the alternative dispute resolution program.
         (b)  The petition must recite, and have attached thereto, supporting proof that the petitioner gave the respondents:
1.  Advance written notice of the specific nature of the dispute;
2.  A demand for relief, and a reasonable opportunity to comply or to provide the relief; and
3.  Notice of the intention to file an arbitration petition or other legal action in the absence of a resolution of the dispute. Failure to include the allegations or proof of compliance with these prerequisites requires dismissal of the petition without prejudice.
(c)  Upon receipt, the petition shall be promptly reviewed by the division to determine the existence of a dispute and compliance with the requirements of paragraphs (a)
and (b).  If emergency relief is required and is not available through arbitration, a motion to stay the arbitration may be filed.  The motion must be accompanied by a verified petition alleging facts that, if proven, would support entry of a temporary injunction, and if an appropriate motion and supporting papers are filed, the division may abate the arbitration pending a court hearing and disposition of a motion for temporary injunction.
(d)  Upon determination by the division that a dispute exists and that the petition substantially meets the requirements of paragraphs (a) and (b) and any other applicable rules, a copy of the petition shall forthwith be served by the division upon all respondents.
(e)  Either before or after the filing of the respondents' answer to the petition, any party may request that the arbitrator refer the case to mediation under this section and any rules adopted by the division.  Upon receipt of a request for mediation, the division shall promptly contact the parties to determine if there is agreement that mediation would be appropriate.  If all parties agree, the dispute must be referred to mediation. Notwithstanding a lack of an agreement by all parties, the arbitrator may refer a dispute to mediation at any time.
         (f)  Upon referral of a case to mediation, the parties must select a mutually acceptable mediator.  To assist in the selection, the arbitrator shall provide the parties with a list of both volunteer and paid mediators that have been certified by the division under s. 718.501.  If the parties are unable to agree on a mediator within the time allowed by the arbitrator, the arbitrator shall appoint a mediator from the list of certified mediators.  If a case is referred to mediation, the parties shall attend a mediation conference, as scheduled by the parties and the mediator.  If any party fails to attend a duly noticed mediation conference, without the permission or approval of the arbitrator or mediator, the arbitrator must impose sanctions against the party, including the striking of any pleadings filed, the entry of an order of dismissal or default if appropriate, and the award of costs and attorneys' fees incurred by the other parties. Unless otherwise agreed to by the parties or as provided by order of the arbitrator, a party is deemed to have appeared at a mediation conference by the physical presence of the party or its representative having full authority to settle without further consultation, provided that an association may comply by having one or more representatives present with full authority to negotiate a settlement and recommend that the board of administration ratify and approve such a settlement within 5 days from the date of the mediation conference. The parties shall share equally the expense of mediation, unless they agree otherwise.
(g)  The purpose of mediation as provided for by this section is to present the parties with an opportunity to resolve the underlying dispute in good faith, and with a
minimum expenditure of time and resources.
(h)  Mediation proceedings must generally be conducted in accordance with the Florida Rules of Civil Procedure, and these proceedings are privileged and confidential to the same extent as court-ordered mediation. Persons who are not parties to the dispute are not allowed to attend the mediation conference without the consent of all parties, with the exception of counsel for the parties and corporate representatives designated to appear for a party.  If the mediator declares an impasse after a mediation conference has been held, the arbitration proceeding terminates, unless all parties agree in writing to continue the arbitration proceeding, in which case the arbitrator's decision shall be either binding or nonbinding, as agreed upon by the parties; in the arbitration proceeding, the arbitrator shall not consider any evidence relating to the unsuccessful mediation except in a proceeding to impose sanctions for failure to appear at the mediation conference. If the parties do not agree to continue arbitration, the arbitrator shall enter an order of dismissal, and either party may institute a suit in a court of competent jurisdiction.  The parties may seek to recover any costs and attorneys' fees incurred in connection with arbitration and mediation proceedings under this section as part of the costs and fees that may be recovered by the prevailing party in any subsequent litigation.
(i)  Arbitration shall be conducted according to rules promulgated by the division. The filing of a petition for arbitration shall toll the applicable statute of limitations.
(j)  At the request of any party to the arbitration, such arbitrator shall issue subpoenas for the attendance of witnesses and the production of books, records, documents, and
other evidence and any party on whose behalf a subpoena is issued may apply to the court for orders compelling such attendance and production. Subpoenas shall be served and shall be enforceable in the manner provided by the Florida Rules of Civil Procedure. Discovery may, in the discretion of the arbitrator, be permitted in the manner provided by the Florida Rules of Civil Procedure. Rules adopted by the division may authorize any reasonable sanctions except contempt for a violation of the arbitration procedural rules of the division or for the failure of a party to comply with a reasonable nonfinal order issued by an arbitrator which is not under judicial review.
(k)  The arbitration decision shall be presented to the parties in writing. An arbitration decision is final in those disputes in which the parties have agreed to be bound.  An arbitration decision is also final if a complaint for a trial de novo is not filed in a court of competent jurisdiction in which the condominium is located within 30 days. The right to file for a trial de novo entitles the parties to file a complaint in the appropriate trial court for a judicial resolution of the dispute. The prevailing party in an arbitration proceeding shall be awarded the costs of the arbitration and reasonable attorney's fees in an amount determined by the arbitrator. Such an award shall include the costs and reasonable attorney's fees incurred in the arbitration proceeding as well as the costs and reasonable attorney's fees incurred in preparing for and attending any
scheduled mediation.
         (l)  The party who files a complaint for a trial de novo shall be assessed the other party's arbitration costs, court costs, and other reasonable costs, including attorney's fees, investigation expenses, and expenses for expert or other testimony or evidence incurred after the arbitration hearing if the judgment upon the trial de novo is not more favorable than the arbitration decision. If the judgment is more favorable, the party who filed a complaint for trial de novo shall be awarded reasonable court costs and attorney's fees.
(m)  Any party to an arbitration proceeding may enforce an arbitration award by filing a petition in a court of competent jurisdiction in which the condominium is located. A
petition may not be granted unless the time for appeal by the filing of a complaint for trial de novo has expired. If a complaint for a trial de novo has been filed, a petition may not be granted with respect to an arbitration award that has been stayed. If the petition for enforcement is granted, the petitioner shall recover reasonable attorney's fees and costs incurred in enforcing the arbitration award.  A mediation settlement may also be enforced through the county or circuit court, as applicable, and any costs and fees incurred in the enforcement of a settlement agreement reached at mediation
must be awarded to the prevailing party in any enforcement action.

(4)  DISPUTES SUBJECT TO LOCAL RESOLUTION.--Disputes shall be resolved in the county in which the dispute has occurred by a local government alternative dispute resolution, mediation, or arbitration program. Such cases shall be handled by these programs without the necessity of the case being filed in the court system. In the resolution of these cases on the local level, past precedent of prior division arbitration
decisions shall be considered and followed where appropriate.

Local government alternative dispute resolution, mediation, or arbitration programs may charge fees for handling these cases. The division shall handle any of these cases arising in counties which do not have local government alternative dispute resolution, mediation, or arbitration programs. The division shall provide a list of these programs to anyone requesting this information and shall act as a clearinghouse for disputes, directing affected parties to the appropriate local alternative dispute resolution, mediation, or arbitration program within the county in which the dispute has
occurred.
         (5)  EXEMPTIONS.--A dispute is not subject to resolution under this section if it includes any disagreement that primarily involves:
(a)  Title to any unit or common element;
(b)  The interpretation or enforcement of any warranty;
(c)  The levy of a fee or assessment or the collection of an assessment levied against a party;
(d)  The eviction or other removal of a tenant from a unit;
(e)  Alleged breaches of fiduciary duty by one or more directors; or
(f)  Claims for damages to a unit based upon the alleged failure of the association to maintain the common elements or condominium property.

         Section 2.  The Division of Florida Land Sales, Condominiums, and Mobile Homes of the Department of Business and Professional Regulation shall continue the arbitration of any cases which qualified for arbitration on the date the case was filed with the division and which were filed with the division prior to the date on which this act becomes law.

         Section 3.  There is hereby appropriated 1 FTE and $440,626 from the Division of Florida Land Sales, Condominiums, and Mobile Homes Trust Fund to the Department of Business and Professional Regulation for the purpose of investigating and resolving disputes and dealing with compliance issues relating to condominiums and cooperatives. This appropriation shall not take effect if a similar amount of funding is included in the various appropriations for compliance and enforcement in the Florida Land Sales, Condominiums, and Mobile Homes program in the fiscal year 2001-2002 General Appropriations Act.

                        Section 4.  This act shall take effect July 1, 2001.