Senate Bill sb1312

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2005                                  SB 1312

    By Senator Carlton





    23-582-05

  1                      A bill to be entitled

  2         An act relating to the Pilot RV Mediation and

  3         Arbitration Program; amending ss. 681.1096 and

  4         681.1097, F.S.; eliminating the termination of

  5         the mediation and arbitration pilot program for

  6         disputes involving the manufacturer of a

  7         recreational vehicle acquired on or after a

  8         specified date; providing an effective date.

  9  

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

11  

12         Section 1.  Section 681.1096, Florida Statutes, is

13  amended to read:

14         681.1096  Pilot RV Mediation and Arbitration Program;

15  creation and qualifications.--

16         (1)  This section and s. 681.1097 shall apply to

17  disputes determined eligible under this chapter involving

18  recreational vehicles acquired on or after October 1, 1997,

19  and shall remain in effect until September 30, 2006, at which

20  time recreational vehicle disputes shall be subject to the

21  provisions of ss. 681.109 and 681.1095. The Attorney General

22  shall report to the President of the Senate, the Speaker of

23  the House of Representatives, the Minority Leader of each

24  house of the Legislature, and appropriate legislative

25  committees regarding the effectiveness of the pilot program.

26         (2)  Each manufacturer of a recreational vehicle

27  involved in a dispute that is determined eligible under this

28  chapter, including chassis and component manufacturers which

29  separately warrant the chassis and components and which

30  otherwise meet the definition of manufacturer set forth in s.

31  

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1312
    23-582-05




 1  681.102(14), shall participate in a mediation and arbitration

 2  program that is deemed qualified by the department.

 3         (3)  In order to be deemed qualified by the department,

 4  the mediation and arbitration program must, at a minimum, meet

 5  the following requirements:

 6         (a)  The program must be administered by an

 7  administrator and staff that is sufficiently insulated from

 8  the manufacturer to ensure impartial mediation and arbitration

 9  services.

10         (b)  Program administration fees must be paid by the

11  manufacturer and no such fees shall be charged to a consumer.

12         (c)  The program must be adequately staffed at a level

13  sufficient to ensure the provision of fair and expeditious

14  dispute resolution services.

15         (d)  Program mediators and arbitrators must be

16  sufficiently insulated from a manufacturer to ensure the

17  provision of impartial mediation and arbitration of disputes.

18         (e)  Program mediators and arbitrators shall not be

19  employed by a manufacturer or a motor vehicle dealer.

20         (f)  Program mediators must complete a Florida Supreme

21  Court certified circuit or county mediation training program,

22  or other mediation training program approved by the

23  department, in addition to a minimum of one-half day of

24  training on this chapter conducted by the department.

25         (g)  Program mediators must comply with the Model

26  Standards of Conduct for Mediators issued by the American

27  Arbitration Association, the Dispute Resolution Section of the

28  American Bar Association, and the Society of Professionals in

29  Dispute Resolution.

30         (h)  Program arbitrators must complete a Florida

31  Supreme Court certified circuit or county arbitration program,

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1312
    23-582-05




 1  or other arbitration training program approved by the

 2  department, in addition to a minimum of 1 day of training in

 3  the application of this chapter and any rules adopted

 4  thereunder conducted by the department.

 5         (i)  Program arbitrators must comply with the Code of

 6  Ethics for Arbitrators in Commercial Disputes published by the

 7  American Arbitration Association and the American Bar

 8  Association in 1977 and as amended.

 9         (j)  Program arbitrators must construe and apply the

10  provisions of this chapter and rules adopted thereunder in

11  making decisions.

12         (k)  The program must complete all mediation and

13  arbitration of an eligible consumer claim within 70 days of

14  the program administrator's receipt of the claim from the

15  department. Failure of the program to complete all proceedings

16  within the prescribed period will not invalidate any

17  settlement agreement or arbitration decision.

18         (l)  Mediation conferences and arbitration proceedings

19  must be held at reasonably convenient locations within the

20  state so as to enable a consumer to attend and present a

21  dispute orally.

22         (4)  The department shall monitor the program for

23  compliance with this chapter. If the program is determined not

24  qualified or if qualification is revoked, then the involved

25  manufacturer shall be required to submit to arbitration

26  conducted by the board if such arbitration is requested by a

27  consumer and the dispute is deemed eligible for arbitration by

28  the division pursuant to s. 681.109.

29         (5)  If a program is determined not qualified or if

30  qualification is revoked, the involved manufacturer shall be

31  notified by the department of any deficiencies in the program

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1312
    23-582-05




 1  and informed that it is entitled to a hearing pursuant to

 2  chapter 120.

 3         (6)  The program administrator, mediators, and

 4  arbitrators are exempt from civil liability arising from any

 5  act or omission in connection with any mediation or

 6  arbitration conducted under this chapter.

 7         (7)  The program administrator shall maintain records

 8  of each dispute submitted to the program, including the

 9  recordings of arbitration hearings. All records maintained by

10  the program under this chapter shall be public records and

11  shall be available for inspection by the department upon

12  reasonable notice.  The records for disputes closed as of

13  September 30 of each year shall be turned over to the

14  department by the program administrator by no later than

15  October 30 of the same year, unless a later date is specified

16  by the department.

17         (8)  The department may shall have the authority to

18  adopt reasonable rules to administer carry out the provisions

19  of this section.

20         Section 2.  Section 681.1097, Florida Statutes, is

21  amended to read:

22         681.1097  Pilot RV Mediation and Arbitration Program;

23  dispute eligibility and program function.--

24         (1)  Before filing a civil action on a matter subject

25  to s. 681.104, a consumer who acquires a recreational vehicle

26  must first submit the dispute to the department, and to the

27  program if the dispute is deemed eligible.  Such consumer is

28  not required to resort to a procedure certified pursuant to s.

29  681.108, notwithstanding that one of the manufacturers of the

30  recreational vehicle has such a procedure.  Such consumer is

31  

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1312
    23-582-05




 1  not required to resort to arbitration conducted by the board,

 2  except as provided in s. 681.1096(4) and in this section.

 3         (2)  A consumer acquiring a recreational vehicle must

 4  apply to participate in this program with respect to a claim

 5  arising during the Lemon Law rights period by filing the

 6  application in subsection (3) with the department no later

 7  than 60 days after the expiration of the Lemon Law rights

 8  period.

 9         (3)  The consumer's application for participation in

10  the program must be on a form prescribed or approved by the

11  department.  The department shall screen all applications to

12  participate in the program to determine eligibility.  The

13  department shall forward to the program administrator all

14  applications the department determines are potentially

15  entitled to relief under this chapter.

16         (a)  If the department determines the application lacks

17  sufficient information from which a determination of

18  eligibility can be made, the department shall request

19  additional information from the consumer and, upon review of

20  such additional information, shall determine whether the

21  application is eligible or reject the application as

22  incomplete.

23         (b)  The department shall reject any application it

24  determines to be fraudulent or outside the scope of this

25  chapter.

26         (c)  The consumer and the manufacturer shall be

27  notified in writing by the department if an application is

28  rejected.  Such notification of rejection shall include a

29  brief explanation as to the reason for the rejection.

30         (d)  If the department rejects a dispute, the consumer

31  may file a lawsuit to enforce the remedies provided under this

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1312
    23-582-05




 1  chapter.  In any civil action arising under this chapter and

 2  relating to the matter considered by the department, any

 3  determination made to reject a dispute is admissible in

 4  evidence.

 5         (e)  The department may delegate responsibility for the

 6  screening of claims to the program, in which event claims

 7  filed with the department shall be forwarded to the program

 8  administrator and the provisions of this section shall apply

 9  to claims screened by the program.

10         (4)  Mediation shall be mandatory for both the consumer

11  and manufacturer, unless the dispute is settled prior to the

12  scheduled mediation conference.  The mediation conference

13  shall be confidential and inadmissible in any subsequent

14  adversarial proceedings.  Participation shall be limited to

15  the parties directly involved in the dispute and their

16  attorneys, if any.  All manufacturers shall be represented by

17  persons with settlement authority.

18         (a)  Upon receipt of an eligible application, the

19  program administrator shall notify the consumer and all

20  involved manufacturers in writing that an eligible application

21  has been received.  Such notification shall include a

22  statement that a mediation conference will be scheduled, shall

23  identify the assigned mediator, and provide information

24  regarding the program's procedures.  The program administrator

25  shall provide all involved manufacturers with a copy of the

26  completed application.

27         (b)  The mediator shall be selected and assigned by the

28  program administrator.  The parties may factually object to a

29  mediator based upon the mediator's past or present

30  relationship with a party or a party's attorney, direct or

31  indirect, whether financial, professional, social, or of any

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1312
    23-582-05




 1  other kind.  The program administrator shall consider any such

 2  objection, determine its validity, and notify the parties of

 3  any determination.  If the objection is determined valid, the

 4  program administrator shall assign another mediator to the

 5  case.

 6         (c)  At the mediation conference, the mediator shall

 7  assist the parties' efforts to reach a mutually acceptable

 8  settlement of their dispute; however, the mediator shall not

 9  impose any settlement upon the parties.

10         (d)  Upon conclusion of the mediation conference, the

11  mediator shall notify the program administrator that the case

12  has settled or remains at an impasse.  The program

13  administrator shall notify the department in writing of the

14  outcome of the mediation.

15         (e)  If the mediation conference ends in an impasse, it

16  shall proceed to arbitration pursuant to subsection (5).  The

17  program administrator shall immediately notify the parties in

18  writing that the dispute will proceed to arbitration and shall

19  identify the assigned arbitrator.

20         (f)  If the parties enter into a settlement at any time

21  after the dispute has been submitted to the program, such

22  settlement must be reduced to writing, signed by the consumer

23  and all involved manufacturers, and filed with the program

24  administrator.  The program administrator shall send a copy to

25  the department. All settlements must contain, at a minimum,

26  the following information:

27         1.  Name and address of the consumer.

28         2.  Name and address of each involved manufacturer.

29         3.  Year, make, model, and vehicle identification

30  number of the subject recreational vehicle.

31  

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1312
    23-582-05




 1         4.  Name and address of the dealership from which the

 2  recreational vehicle was acquired.

 3         5.  Date the claim was received by the program

 4  administrator.

 5         6.  Name of the mediator and/or arbitrator, if any.

 6         7.  Statement of the terms of the agreement, including,

 7  but not limited to:  whether the vehicle is to be reacquired

 8  by a manufacturer and the identity of the manufacturer that

 9  will reacquire the vehicle; the amount of any moneys to be

10  paid by the consumer and/or a manufacturer; the year, make,

11  and model of any replacement motor vehicle or motor vehicle

12  accepted by the consumer as a trade-assist; and a time certain

13  for performance not to exceed 40 days from the date the

14  settlement agreement is signed by the parties.

15         (g)  If a manufacturer fails to perform within the time

16  required in any settlement agreement, the consumer must notify

17  the program administrator of such failure in writing within 10

18  days of the required performance date. Within 10 days of

19  receipt of such notice, the program administrator shall notify

20  the department of the manufacturer's failure in compliance and

21  shall schedule the matter for an arbitration hearing pursuant

22  to subsection (5).

23         (5)  If the mediation ends in an impasse, or if a

24  manufacturer fails to comply with the settlement entered into

25  between the parties, the program administrator shall schedule

26  the dispute for an arbitration hearing. Arbitration

27  proceedings shall be open to the public on reasonable and

28  nondiscriminatory terms.

29         (a)  The arbitration hearing shall be conducted by a

30  single arbitrator assigned by the program administrator.  The

31  arbitrator shall not be the same person as the mediator who

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1312
    23-582-05




 1  conducted the prior mediation conference in the dispute.  The

 2  parties may factually object to an arbitrator based on the

 3  arbitrator's past or present relationship with a party or a

 4  party's attorney, direct or indirect, whether financial,

 5  professional, social, or of any other kind.  The program

 6  administrator shall consider any such objection, determine its

 7  validity, and notify the parties of any determination.  If the

 8  objection is determined valid, the program administrator shall

 9  assign another arbitrator to the case.

10         (b)  The arbitrator may issue subpoenas for the

11  attendance of witnesses and for the production of records,

12  documents, and other evidence. Subpoenas so issued shall be

13  served and, upon application to the court by a party to the

14  arbitration, enforced in the manner provided by law for the

15  service and enforcement of subpoenas in civil actions. Fees

16  for attendance as a witness shall be the same as for a witness

17  in the circuit court.

18         (c)  At all program arbitration proceedings, the

19  parties may present oral and written testimony, present

20  witnesses and evidence relevant to the dispute, cross-examine

21  witnesses, and be represented by counsel.  The arbitrator

22  shall record the arbitration hearing and shall have the power

23  to administer oaths.  The arbitrator may inspect the vehicle

24  if requested by a party or if the arbitrator considers such

25  inspection appropriate.

26         (d)  The program arbitrator may continue a hearing on

27  his or her own motion or upon the request of a party for good

28  cause shown.  A request for continuance by the consumer

29  constitutes a waiver of the time period set forth in s.

30  681.1096(3)(k) for completion of all proceedings under the

31  program.

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1312
    23-582-05




 1         (e)  Where the arbitration is the result of a

 2  manufacturer's failure to perform in accordance with a

 3  settlement agreement, any relief to the consumer granted by

 4  the arbitration will be no less than the relief agreed to by

 5  the manufacturer in the settlement agreement.

 6         (f)  The arbitrator shall grant relief if a reasonable

 7  number of attempts have been undertaken to correct a

 8  nonconformity or nonconformities.

 9         (g)  The program arbitrator shall render a decision

10  within 10 days of the closing of the hearing. The decision

11  shall be in writing on a form prescribed or approved by the

12  department. The program administrator shall send a copy of the

13  decision to the consumer and each involved manufacturer by

14  registered mail. The program administrator shall also send a

15  copy of the decision to the department within 5 days of

16  mailing to the parties.

17         (h)  A manufacturer shall comply with an arbitration

18  decision within 40 days of the date the manufacturer receives

19  the written decision. Compliance occurs on the date the

20  consumer receives delivery of an acceptable replacement motor

21  vehicle or the refund specified in the arbitration award. If a

22  manufacturer fails to comply within the time required, the

23  consumer must notify the program administrator in writing

24  within 10 days. The program administrator shall notify the

25  department of a manufacturer's failure to comply. The

26  department shall have the authority to enforce compliance with

27  arbitration decisions under this section in the same manner as

28  is provided for enforcement of compliance with board decisions

29  under s. 681.1095(10). In any civil action arising under this

30  chapter and relating to a dispute arbitrated pursuant to this

31  

                                  10

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1312
    23-582-05




 1  section, the decision of the arbitrator is admissible in

 2  evidence.

 3         (i)  Either party may request that the program

 4  arbitrator make a technical correction to the decision by

 5  filing a written request with the program administrator within

 6  10 days after receipt of the written decision. Technical

 7  corrections shall be limited to computational errors,

 8  correction of a party's name or information regarding the

 9  recreational vehicle, and typographical or spelling errors.

10  Technical correction of a decision shall not toll the time for

11  filing an appeal or for manufacturer compliance.

12         (6)  Except as otherwise provided, all provisions in

13  this section pertaining to mandatory mediation and

14  arbitration, eligibility screening, mediation proceedings,

15  arbitration hearings and decisions, and any appeals thereof

16  are exempt from the provisions of chapter 120.

17         (7)  A decision of the arbitrator is binding unless

18  appealed by either party by filing a petition with the circuit

19  court within the time and in the manner prescribed by s.

20  681.1095(10) and (12). Section 681.1095(13) and (14) apply to

21  appeals filed under this section. If a decision of a program

22  arbitrator in favor of a consumer is confirmed by the court,

23  recovery by the consumer shall include the pecuniary value of

24  the award, attorney's fees incurred in obtaining confirmation

25  of the award, and all costs and continuing damages in the

26  amount of $25 per day for each day beyond the 40-day period

27  following a manufacturer's receipt of the arbitrator's

28  decision. If a court determines the manufacturer acted in bad

29  faith in bringing the appeal or brought the appeal solely for

30  the purpose of harassment, or in complete absence of a

31  

                                  11

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2005                                  SB 1312
    23-582-05




 1  justiciable issue of law or fact, the court shall double, and

 2  may triple, the amount of the total award.

 3         (8)  The department may shall have the authority to

 4  adopt reasonable rules to administer carry out the provisions

 5  of this section.

 6         Section 3.  This act shall take effect upon becoming a

 7  law.

 8  

 9            *****************************************

10                          SENATE SUMMARY

11    Eliminates the termination scheduled for September 30,
      2006, of the Pilot RV Mediation and Arbitration Program
12    within the Department of Legal Affairs.

13  

14  

15  

16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  12

CODING: Words stricken are deletions; words underlined are additions.