CS/CS/HB 679

1	A bill to be entitled
2	An act relating to residential properties; amending s.
3	34.01, F.S.; conforming a cross-reference; amending s.
4	514.011, F.S.; providing definitions; amending s.
5	514.0115, F.S.; providing specified supervision and
6	regulation exemptions for homeowners' association swimming
7	pools; amending s. 515.25, F.S.; conforming a cross-
8	reference; creating s. 515.295, F.S.; providing
9	definitions; requiring residential pools and spas built
10	after a specified date to have certain features; amending
11	s. 720.302, F.S.; conforming a cross-reference; providing
12	legislative intent; amending s. 720.303, F.S.; revising
13	provisions relating to homeowners' association board
14	meetings, inspection and copying of records, and reserve
15	accounts of budgets; prohibiting salary or compensation of
16	certain association personnel for certain duties;
17	providing exceptions; amending s. 720.305, F.S.; revising
18	a lien restriction; amending s. 720.306, F.S.; providing
19	absentee ballot voting requirements; requiring newly
20	elected members of a board of directors to make certain
21	certifications in writing to the association; providing
22	for disqualification for failure to make such
23	certifications; requiring an association to retain such
24	certifications for a certain time; repealing s. 720.311,
25	F.S., relating to dispute resolution; providing that
26	dispute resolution proceedings that are pending as of the
27	date of repeal shall continue under the repealed
28	provisions; amending s. 720.401, F.S.; revising certain
29	prospective parcel owner disclosure summary requirements;
30	creating part IV of ch. 720, F.S.; creating s. 720.501,
31	F.S.; providing a short title; creating s. 720.502, F.S.;
32	providing legislative findings; creating s. 720.503, F.S.;
33	providing applicability; providing for mediation and
34	arbitration of homeowners' association disputes; providing
35	exceptions; authorizing the filing of a motion for
36	temporary injunctive relief; providing for the tolling of
37	applicable statutes of limitations; creating s. 720.504,
38	F.S.; providing notification requirements; creating s.
39	720.505, F.S.; providing a statutory notice form for
40	referral to mediation; providing requirements for the
41	service of such notice; requiring parties to share costs
42	of presuit mediation equally; providing response
43	requirements; providing scheduling requirements; providing
44	for impasse under certain conditions; prohibiting certain
45	parties from recovering attorney's fees and costs in
46	subsequent litigation proceedings; creating s. 720.506,
47	F.S.; authorizing certain persons to opt out of presuit
48	mediation; providing requirements for a person to opt out
49	of such mediation; creating s. 720.507, F.S.; providing a
50	statutory notice form for referral to arbitration;
51	providing requirements for the service of such notice;
52	requiring parties to share costs of arbitration equally;
53	providing scheduling requirements; providing for impasse
54	under certain conditions; prohibiting certain parties from
55	recovering attorney's fees and costs in subsequent
56	litigation proceedings; creating s. 720.508, F.S.;
57	providing rules of procedure for presuit mediation and
58	presuit arbitration proceedings; providing for
59	confidentiality; creating s. 720.509, F.S.; providing
60	qualifications for mediators and arbitrators; creating s.
61	720.510, F.S.; providing for enforcement of mediation
62	settlement agreements and arbitration awards; requiring
63	the department to apply for and implement a federal grant
64	for enforcing swimming pool safety standards; requiring
65	the Department of Health, the Department of Community
66	Affairs, and the Florida Building Commission to assess
67	state statutes and the Florida Building Code to determine
68	if changes are needed to comply with federal standards
69	pertaining to swimming pool and spa safety; requiring the
70	Department of Health to present the assessment to the
71	Legislature by a specified date; providing effective
72	dates.
73
74	Be It Enacted by the Legislature of the State of Florida:
75
76	Section 1.  Effective July 1, 2009, paragraph (d) of
77	subsection (1) of section 34.01, Florida Statutes, is amended to
78	read:
79	34.01  Jurisdiction of county court.--
80	(1)  County courts shall have original jurisdiction:
81	(d)  Of disputes occurring in the homeowners' associations
82	as described in part IV of chapter 720 s. 720.311(2)(a), which
83	shall be concurrent with jurisdiction of the circuit courts.
84	Section 2.  Section 514.011, Florida Statutes, is amended
85	to read:
86	514.011  Definitions.--As used in this chapter, the term:
87	(1)  "Department" means the Department of Health.
88	(2)  "Homeowners' association" means a homeowners'
89	association as defined in s. 720.301.
90	(3)(5)  "Portable pool" means a pool or spa, and related
91	equipment systems of any kind, which is designed or intended to
92	be movable from location to location.
93	(4)(3)  "Private pool" means a facility used only by an
94	individual, family, or living unit members and their guests
95	which does not serve any type of cooperative housing or joint
96	tenancy of five or more living units.
97	(5)(4)  "Public bathing place" means a body of water,
98	natural or modified by humans, for swimming, diving, and
99	recreational bathing, together with adjacent shoreline or land
100	area, buildings, equipment, and appurtenances pertaining
101	thereto, used by consent of the owner or owners and held out to
102	the public by any person or public body, irrespective of whether
103	a fee is charged for the use thereof. The bathing water areas of
104	public bathing places include, but are not limited to, lakes,
105	ponds, rivers, streams, artificial impoundments, and waters
106	along the coastal and intracoastal beaches and shores of the
107	state.
108	(6)(2)  "Public swimming pool" or "public pool" means a
109	watertight structure of concrete, masonry, or other approved
110	materials which is located either indoors or outdoors, used for
111	bathing or swimming by humans, and filled with a filtered and
112	disinfected water supply, together with buildings,
113	appurtenances, and equipment used in connection therewith. A
114	public swimming pool or public pool shall mean a conventional
115	pool, spa-type pool, wading pool, special purpose pool, or water
116	recreation attraction, to which admission may be gained with or
117	without payment of a fee and includes, but is not limited to,
118	pools operated by or serving camps, churches, cities, counties,
119	day care centers, group home facilities for eight or more
120	clients, health spas, institutions, parks, state agencies,
121	schools, subdivisions, or the cooperative living-type projects
122	of five or more living units, such as apartments,
123	boardinghouses, hotels, mobile home parks, motels, recreational
124	vehicle parks, and townhouses.
125	Section 3.  Subsection (2) of section 514.0115, Florida
126	Statutes, is amended to read:
127	514.0115  Exemptions from supervision or regulation;
128	variances.--
129	(2)(a)  Pools serving no more than 32 condominium or
130	cooperative units or 32 parcels governed by a homeowners'
131	association which are not operated as a public lodging
132	establishment shall be exempt from supervision under this
133	chapter, except for water quality.
134	(b)  Pools serving condominium or cooperative associations
135	of more than 32 units or homeowners' associations of more than
136	32 parcels and whose recorded documents prohibit the rental or
137	sublease of the units for periods of less than 60 days are
138	exempt from supervision under this chapter, except that the
139	homeowners' association or condominium or cooperative owner or
140	association must file applications with the department and
141	obtain construction plans approval and receive an initial
142	operating permit. The department shall inspect the swimming
143	pools at such places annually, at the fee set forth in s.
144	514.033(3), or upon request by a unit owner, to determine
145	compliance with department rules relating to water quality and
146	lifesaving equipment. The department may not require compliance
147	with rules relating to swimming pool lifeguard standards.
148	Section 4.  Subsection (9) of section 515.25, Florida
149	Statutes, is amended to read:
150	515.25  Definitions.--As used in this chapter, the term:
151	(9)  "Public swimming pool" means a swimming pool, as
152	defined in s. 514.011(6)(2), which is operated, with or without
153	charge, for the use of the general public; however, the term
154	does not include a swimming pool located on the grounds of a
155	private residence.
156	Section 5.  Effective January 1, 2009, section 515.295,
157	Florida Statutes, is created to read:
158	515.295  Residential swimming pool and spa drain-cover
159	safety.--
160	(1)  For purposes of this section, the term:
161	(a)  "ASME/ANSI" as applied to a safety standard means a
162	standard that is accredited by the American National Standards
163	Institute and published by the American Society of Mechanical
164	Engineers.
165	(b)  "Main drain" means a submerged suction outlet
166	typically located at the bottom of a swimming pool or spa to
167	conduct water to a recirculating pump.
168	(c)  "Safety vacuum release system" means a vacuum release
169	system capable of providing vacuum release at a suction outlet
170	caused by a high vacuum occurrence due to a suction outlet flow
171	blockage.
172	(d)  "Unblockable drain" means a drain of any size and
173	shape which a human body cannot sufficiently block to create a
174	suction-entrapment hazard.
175	(2)  All residential swimming pools and spas constructed on
176	or after January 1, 2009, must have more than one drain, one or
177	more unblockable drains, or no main drain.
178	(3)  All residential swimming pools and spas constructed on
179	or after January 1, 2009, must be equipped with one or more of
180	the following devices and systems designed to prevent entrapment
181	by the pool or spa drain:
182	(a)  A safety vacuum release system that ceases operation
183	of the pump, reverses the circulation flow, or otherwise
184	provides a vacuum release at a suction outlet when a blockage is
185	detected. Such system must have been tested by an independent
186	third party and found to conform to ASME/ANSI standard
187	A112.19.17 or ASTM standard F2387.
188	(b)  A suction-limiting vent system that has a tamper-
189	resistant atmospheric opening.
190	(c)  A gravity drainage system that uses a collector tank.
191	(d)  An automatic pump shut-off system.
192	(e)  A device or system that disables the drain.
193	(f)  Any other system determined by the department to be
194	equally effective as, or better than, the systems described in
195	this subsection at preventing or eliminating the risk of injury
196	or death associated with swimming pool and spa drainage systems.
197	(4)  Any device or system described in subsection (3) must
198	meet the requirements of any ASME/ANSI or ASTM performance
199	standard, if there is such a standard for such a device or
200	system, or any applicable consumer product safety standard.
201	Section 6.  Effective July 1, 2009, subsection (2) of
202	section 720.302, Florida Statutes, is amended to read:
203	720.302  Purposes, scope, and application.--
204	(2)  The Legislature recognizes that it is not in the best
205	interest of homeowners' associations or the individual
206	association members thereof to create or impose a bureau or
207	other agency of state government to regulate the affairs of
208	homeowners' associations. However, in accordance with part IV of
209	this chapter s. 720.311, the Legislature finds that homeowners'
210	associations and their individual members will benefit from an
211	expedited alternative process for resolution of election and
212	recall disputes and presuit mediation of other disputes
213	involving covenant enforcement in homeowner's associations and
214	deed restricted communities using the procedures provided in
215	part IV of and authorizes the department to hear, administer,
216	and determine these disputes as more fully set forth in this
217	chapter. Further, the Legislature recognizes that certain
218	contract rights have been created for the benefit of homeowners'
219	associations and members thereof as well as deed-restricted
220	communities before the effective date of this act and that this
221	chapter is ss. 720.301-720.407 are not intended to impair such
222	contract rights, including, but not limited to, the rights of
223	the developer to complete the community as initially
224	contemplated.
225	Section 7.  Paragraph (b) of subsection (2), paragraphs (a)
226	and (c) of subsection (5), and paragraphs (b), (c), (d), (f),
227	and (g) of subsection (6) of section 720.303, Florida Statutes,
228	are amended, and subsection (12) is added to that section, to
229	read:
230	720.303  Association powers and duties; meetings of board;
231	official records; budgets; financial reporting; association
232	funds; recalls.--
233	(2)  BOARD MEETINGS.--
234	(b)  Members have the right to attend all meetings of the
235	board and to speak on any matter placed on the agenda by
236	petition of the voting interests for at least 3 minutes. The
237	association may adopt written reasonable rules expanding the
238	right of members to speak and governing the frequency, duration,
239	and other manner of member statements, which rules must be
240	consistent with this paragraph and may include a sign-up sheet
241	for members wishing to speak. Notwithstanding any other law, the
242	requirement that board meetings and committee meetings be open
243	to the members is inapplicable to meetings between the board or
244	a committee to discuss proposed or pending litigation with and
245	the association's attorney, and with respect to meetings of the
246	board held for the purpose of discussing personnel matters.
247	(5)  INSPECTION AND COPYING OF RECORDS.--The official
248	records shall be maintained within the state and must be open to
249	inspection and available for photocopying by members or their
250	authorized agents at reasonable times and places within 10
251	business days after receipt of a written request for access.
252	This subsection may be complied with by having a copy of the
253	official records available for inspection or copying in the
254	community. If the association has a photocopy machine available
255	where the records are maintained, it must provide parcel owners
256	with copies on request during the inspection if the entire
257	request is limited to no more than 25 pages.
258	(a)  The failure of an association to provide access to the
259	records within 10 business days after receipt of a written
260	request submitted by certified mail, return receipt requested,
261	creates a rebuttable presumption that the association willfully
262	failed to comply with this subsection.
263	(c)  The association may adopt reasonable written rules
264	governing the frequency, time, location, notice, records to be
265	inspected, and manner of inspections, but may not impose a
266	requirement that a parcel owner demonstrate any proper purpose
267	for the inspection, state any reason for the inspection, or
268	limit a parcel owner's right to inspect records to less than one
269	8-hour business day per month. The association may impose fees
270	to cover the costs of providing copies of the official records,
271	including, without limitation, the costs of copying. The
272	association may charge up to 50 cents per page for copies made
273	on the association's photocopier. If the association does not
274	have a photocopy machine available where the records are kept,
275	or if the records requested to be copied exceed 25 pages in
276	length, the association may have copies made by an outside
277	vendor or association management company personnel and may
278	charge the actual cost of copying, including any reasonable
279	costs involving personnel fees and charges at an hourly rate for
280	employee time to cover administrative costs to the association.
281	The association shall maintain an adequate number of copies of
282	the recorded governing documents, to ensure their availability
283	to members and prospective members. Notwithstanding the
284	provisions of this paragraph, the following records shall not be
285	accessible to members or parcel owners:
286	1.  Any record protected by the lawyer-client privilege as
287	described in s. 90.502 and any record protected by the work-
288	product privilege, including, but not limited to, any record
289	prepared by an association attorney or prepared at the
290	attorney's express direction which reflects a mental impression,
291	conclusion, litigation strategy, or legal theory of the attorney
292	or the association and was prepared exclusively for civil or
293	criminal litigation or for adversarial administrative
294	proceedings or which was prepared in anticipation of imminent
295	civil or criminal litigation or imminent adversarial
296	administrative proceedings until the conclusion of the
297	litigation or adversarial administrative proceedings.
298	2.  Information obtained by an association in connection
299	with the approval of the lease, sale, or other transfer of a
300	parcel.
301	3.  Disciplinary, health, insurance, and personnel records
302	of the association's employees.
303	4.  Medical records of parcel owners or community
304	residents.
305	(6)  BUDGETS.--
306	(b)  In addition to annual operating expenses, the budget
307	may include reserve accounts for capital expenditures and
308	deferred maintenance for which the association is responsible.
309	To the extent that such reserve accounts are not created or
310	established pursuant to paragraph (d), funding of such reserves
311	shall be limited to the extent that the governing documents do
312	not limit increases in assessments, including reserves. If the
313	budget of the association includes reserve accounts created or
314	established pursuant to paragraph (d), such reserves shall be
315	determined, maintained, and waived in the manner provided in
316	this subsection. Once an association provides for reserve
317	accounts created or established pursuant to paragraph (d) in the
318	budget, the association shall thereafter determine, maintain,
319	and waive reserves in compliance with this subsection. Nothing
320	in this section precludes termination of a reserve account
321	established pursuant to this paragraph upon approval of a
322	majority of the voting interests of the association. Upon such
323	approval, the terminating reserve account shall be removed from
324	the budget.
325	(c)1.  If the budget of the association does not provide
326	for reserve accounts created or established pursuant to
327	paragraph (d) governed by this subsection and the association is
328	responsible for the repair and maintenance of capital
329	improvements that may result in a special assessment if reserves
330	are not provided, each financial report for the preceding fiscal
331	year required by subsection (7) shall contain the following
332	statement in conspicuous type: THE BUDGET OF THE ASSOCIATION
333	DOES NOT PROVIDE FOR RESERVE ACCOUNTS FOR CAPITAL EXPENDITURES
334	AND DEFERRED MAINTENANCE THAT MAY RESULT IN SPECIAL ASSESSMENTS.
335	OWNERS MAY ELECT TO PROVIDE FOR RESERVE ACCOUNTS PURSUANT TO THE
336	PROVISIONS OF SECTION 720.303(6), FLORIDA STATUTES, UPON THE
337	APPROVAL OF NOT LESS THAN A MAJORITY OF THE TOTAL VOTING
338	INTERESTS OF THE ASSOCIATION ATTAINED BY VOTE OF THE MEMBERS AT
339	A MEETING OR BY WRITTEN CONSENT EXECUTED BY A MAJORITY OF THE
340	VOTING INTERESTS.
341	2.  If the budget of the association does provide for
342	funding of accounts for deferred expenditures, including, but
343	not limited to, funds for capital expenditures and deferred
344	maintenance, but such accounts are not created or established
345	pursuant to paragraph (d), each financial report for the
346	preceding fiscal year required by subsection (7) shall also
347	contain the following statement in conspicuous type: THE BUDGET
348	OF THE ASSOCIATION DOES PROVIDE FOR LIMITED VOLUNTARY DEFERRED
349	EXPENDITURE ACCOUNTS, INCLUDING CAPITAL EXPENDITURES AND
350	DEFERRED MAINTENANCE, SUBJECT TO LIMITS ON FUNDING CONTAINED IN
351	OUR GOVERNING DOCUMENTS. BECAUSE THE OWNERS HAVE NOT ELECTED TO
352	PROVIDE FOR RESERVE ACCOUNTS PURSUANT TO THE PROVISIONS OF
353	SECTION 720.303(6), FLORIDA STATUTES, THESE FUNDS ARE NOT
354	SUBJECT TO THE RESTRICTIONS ON USE OF SUCH FUNDS SET FORTH IN
355	THAT STATUTE, NOR ARE RESERVES CALCULATED IN ACCORDANCE WITH
356	THAT STATUTE.
357	(d)  An association shall be deemed to have provided for
358	reserve accounts when reserve accounts have been initially
359	established by the developer or when the membership of the
360	association affirmatively elects to provide for reserves. If
361	reserve accounts are not initially provided for by the
362	developer, the membership of the association may elect to do so
363	upon the affirmative approval of not less than a majority of the
364	total voting interests of the association. Such approval may be
365	attained by vote of the members at a duly called meeting of the
366	membership or upon a written consent executed by not less than a
367	majority of the total voting interests in the community. The
368	approval action of the membership shall state that reserve
369	accounts shall be provided for in the budget and shall designate
370	the components for which the reserve accounts are to be
371	established. Upon approval by the membership, the board of
372	directors shall provide for the required reserve accounts for
373	inclusion in the budget in the next fiscal year following the
374	approval and in each year thereafter. Once established as
375	provided in this subsection, the reserve accounts shall be
376	funded or maintained or shall have their funding waived in the
377	manner provided in paragraph (f).
378	(f)  After one or more Once a reserve account or reserve
379	accounts are established, the membership of the association,
380	upon a majority vote at a meeting at which a quorum is present,
381	may provide for no reserves or less reserves than required by
382	this section. If a meeting of the unit owners has been called to
383	determine whether to waive or reduce the funding of reserves and
384	no such result is achieved or a quorum is not present, the
385	reserves as included in the budget shall go into effect. After
386	the turnover, the developer may vote its voting interest to
387	waive or reduce the funding of reserves. Any vote taken pursuant
388	to this subsection to waive or reduce reserves shall be
389	applicable only to one budget year.
390	(g)  Funding formulas for reserves authorized by this
391	section shall be based on either a separate analysis of each of
392	the required assets or a pooled analysis of two or more of the
393	required assets.
394	1.  If the association maintains separate reserve accounts
395	for each of the required assets, the amount of the contribution
396	to each reserve account shall be the sum of the following two
397	calculations:
398	a.  The total amount necessary, if any, to bring a negative
399	component balance to zero.
400	b.  The total estimated deferred maintenance expense or
401	estimated replacement cost of the reserve component less the
402	estimated balance of the reserve component as of the beginning
403	of the period for which the budget will be in effect. The
404	remainder, if greater than zero, shall be divided by the
405	estimated remaining useful life of the component.
406
407	The formula may be adjusted each year for changes in estimates
408	and deferred maintenance performed during the year and may
409	include factors such as inflation and earnings on invested
410	funds.
411	2.  If the association maintains a pooled account of two or
412	more of the required reserve assets, the amount of the
413	contribution to the pooled reserve account as disclosed on the
414	proposed budget shall not be less than that required to ensure
415	that the balance on hand at the beginning of the period for
416	which the budget will go into effect plus the projected annual
417	cash inflows over the remaining estimated useful life of all of
418	the assets that make up the reserve pool are equal to or greater
419	than the projected annual cash outflows over the remaining
420	estimated useful lives of all of the assets that make up the
421	reserve pool, based on the current reserve analysis. The
422	projected annual cash inflows may include estimated earnings
423	from investment of principal and accounts receivable minus the
424	allowance for doubtful accounts. The reserve funding formula
425	shall not include any type of balloon payments.
426	(12)  COMPENSATION PROHIBITED.--A director, officer, or
427	committee member of the association may not receive directly or
428	indirectly any salary or compensation from the association for
429	performance of duties as a director, officer, or committee
430	member and such person may not in any other way benefit
431	financially from service to the association. This subsection
432	shall not be construed to preclude:
433	(a)  Participation by such person in a financial benefit
434	accruing to all or a significant number of members as a result
435	of actions lawfully taken by the board or a committee of which
436	he or she is a member, including, but not limited to, routine
437	maintenance, repair, or replacement of community assets;
438	(b)  Reimbursement for out-of-pocket expenses incurred by
439	such person on behalf of the association, subject to approval of
440	such reimbursement in accordance with procedures established by
441	the association's governing documents or, in the absence of such
442	procedures, in accordance with an approval process established
443	by the board;
444	(c)  Any recovery of insurance proceeds derived from a
445	policy of insurance maintained by the association for the
446	benefit of its members;
447	(d)  Any fee or compensation authorized in the governing
448	documents; or
449	(e)  Any fee or compensation authorized in advance by a
450	vote of a majority of the voting interests voting in person or
451	by proxy at the meeting of the members.
452	Section 8.  Subsection (2) of section 720.305, Florida
453	Statutes, are amended to read:
454	720.305  Obligations of members; remedies at law or in
455	equity; levy of fines and suspension of use rights; failure to
456	fill sufficient number of vacancies on board of directors to
457	constitute a quorum; appointment of receiver upon petition of
458	any member.--
459	(2)  If the governing documents so provide, an association
460	may suspend, for a reasonable period of time, the rights of a
461	member or a member's tenants, guests, or invitees, or both, to
462	use common areas and facilities and may levy reasonable fines,
463	not to exceed $100 per violation, against any member or any
464	tenant, guest, or invitee. A fine may be levied on the basis of
465	each day of a continuing violation, with a single notice and
466	opportunity for hearing, except that no such fine shall exceed
467	$1,000 in the aggregate unless otherwise provided in the
468	governing documents. A fine of less than $1,000 shall not become
469	a lien against a parcel. In any action to recover a fine, the
470	prevailing party is entitled to collect its reasonable
471	attorney's fees and costs from the nonprevailing party as
472	determined by the court.
473	(a)  A fine or suspension may not be imposed without notice
474	of at least 14 days to the person sought to be fined or
475	suspended and an opportunity for a hearing before a committee of
476	at least three members appointed by the board who are not
477	officers, directors, or employees of the association, or the
478	spouse, parent, child, brother, or sister of an officer,
479	director, or employee. If the committee, by majority vote, does
480	not approve a proposed fine or suspension, it may not be
481	imposed.
482	(b)  The requirements of this subsection do not apply to
483	the imposition of suspensions or fines upon any member because
484	of the failure of the member to pay assessments or other charges
485	when due if such action is authorized by the governing
486	documents.
487	(c)  Suspension of common-area-use rights shall not impair
488	the right of an owner or tenant of a parcel to have vehicular
489	and pedestrian ingress to and egress from the parcel, including,
490	but not limited to, the right to park.
491	Section 9.  Subsections (8) and (9) of section 720.306,
492	Florida Statutes, are amended to read:
493	720.306  Meetings of members; voting and election
494	procedures; amendments.--
495	(8)  PROXY VOTING.--The members have the right, unless
496	otherwise provided in this subsection or in the governing
497	documents, to vote in person or by proxy.
498	(a)  To be valid, a proxy must be dated, must state the
499	date, time, and place of the meeting for which it was given, and
500	must be signed by the authorized person who executed the proxy.
501	A proxy is effective only for the specific meeting for which it
502	was originally given, as the meeting may lawfully be adjourned
503	and reconvened from time to time, and automatically expires 90
504	days after the date of the meeting for which it was originally
505	given. A proxy is revocable at any time at the pleasure of the
506	person who executes it. If the proxy form expressly so provides,
507	any proxy holder may appoint, in writing, a substitute to act in
508	his or her place.
509	(b)  If the governing documents permit voting by secret
510	ballot by owners who are not in attendance at a meeting of the
511	members for the election of directors, such ballots shall be
512	placed in an inner envelope with no identifying markings and
513	mailed or delivered to the association in an outer envelope
514	bearing identifying information reflecting the name of the
515	owner, the lot or parcel for which the vote is being cast, and
516	the signature of the lot or parcel owner casting that ballot.
517	After the eligibility of the member to vote and confirmation
518	that no other ballot has been submitted for that lot or parcel
519	has been determined, the inner envelope shall be removed from
520	the outer envelope bearing the identification information and
521	placed with the ballots which were personally cast and shall be
522	opened when the ballots are counted. In the event that more than
523	one ballot is submitted for a lot or parcel, the ballots for
524	that lot or parcel shall be disqualified. Any vote by ballot
525	received after the closing of the balloting by a vote of the
526	membership shall not be considered.
527	(9)  ELECTIONS; BOARD MEMBER CERTIFICATION.--
528	(a)  Elections of directors must be conducted in accordance
529	with the procedures set forth in the governing documents of the
530	association. All members of the association shall be eligible to
531	serve on the board of directors, and a member may nominate
532	himself or herself as a candidate for the board at a meeting
533	where the election is to be held or, in the case of an election
534	process that allows voting by absentee ballot, in advance of the
535	balloting. Except as otherwise provided in the governing
536	documents, boards of directors must be elected by a plurality of
537	the votes cast by eligible voters. Any election dispute between
538	a member and an association must be submitted to mandatory
539	binding arbitration with the division. Such proceedings shall be
540	conducted in the manner provided by s. 718.1255 and the
541	procedural rules adopted by the division.
542	(b)  Within 30 days after being elected to the board of
543	directors, a new director shall certify in writing to the
544	secretary of the association that he or she has read the
545	association's declarations of covenants and restrictions,
546	articles of incorporation, bylaws, and current written policies
547	and that he or she will work to uphold each to the best of his
548	or her ability and will faithfully discharge his or her
549	fiduciary responsibility to the association's members. Failure
550	to timely file such statement shall automatically disqualify the
551	director from service on the association's board of directors.
552	The secretary shall cause the association to retain a director's
553	certification for inspection by the membership of the
554	association for a period of 5 years after a director's election.
555	Failure to have such certification on file shall not affect the
556	validity of any appropriate action.
557	Section 10.  Effective July 1, 2009, section 720.311,
558	Florida Statutes is repealed. Dispute resolution proceedings
559	that have begun, subject to the provisions of 720.311, Florida
560	Statutes, and are still pending as of the date of this repeal
561	shall continue under that section.
562	Section 11.  Paragraph (a) of subsection (1) of section
563	720.401, Florida Statutes, is amended to read:
564	720.401  Prospective purchasers subject to association
565	membership requirement; disclosure required; covenants;
566	assessments; contract cancellation.--
567	(1)(a)  A prospective parcel owner in a community must be
568	presented a disclosure summary before executing the contract for
569	sale. The disclosure summary must be in a form substantially
570	similar to the following form:
571
572	DISCLOSURE SUMMARY
573	FOR
574	(NAME OF COMMUNITY)
575
576	1.  AS A PURCHASER OF PROPERTY IN THIS COMMUNITY, YOU WILL
577	BE OBLIGATED TO BE A MEMBER OF A HOMEOWNERS' ASSOCIATION.
578	2.  THERE HAVE BEEN OR WILL BE RECORDED RESTRICTIVE
579	COVENANTS GOVERNING THE USE AND OCCUPANCY OF PROPERTIES IN THIS
580	COMMUNITY.
581	3.  YOU WILL BE OBLIGATED TO PAY ASSESSMENTS TO THE
582	ASSOCIATION. ASSESSMENTS MAY BE SUBJECT TO PERIODIC CHANGE. IF
583	APPLICABLE, THE CURRENT AMOUNT IS $_____ PER _____. YOU WILL
584	ALSO BE OBLIGATED TO PAY ANY SPECIAL ASSESSMENTS IMPOSED BY THE
585	ASSOCIATION. SUCH SPECIAL ASSESSMENTS MAY BE SUBJECT TO CHANGE.
586	IF APPLICABLE, THE CURRENT AMOUNT IS $_____ PER _____.
587	4.  YOU MAY BE OBLIGATED TO PAY SPECIAL ASSESSMENTS TO THE
588	RESPECTIVE MUNICIPALITY, COUNTY, OR SPECIAL DISTRICT. ALL
589	ASSESSMENTS ARE SUBJECT TO PERIODIC CHANGE.
590	5.  YOUR FAILURE TO PAY SPECIAL ASSESSMENTS OR ASSESSMENTS
591	LEVIED BY A MANDATORY HOMEOWNERS' ASSOCIATION COULD RESULT IN A
592	LIEN ON YOUR PROPERTY.
593	6.  THERE MAY BE AN OBLIGATION TO PAY RENT OR LAND USE FEES
594	FOR RECREATIONAL OR OTHER COMMONLY USED FACILITIES AS AN
595	OBLIGATION OF MEMBERSHIP IN THE HOMEOWNERS' ASSOCIATION. IF
596	APPLICABLE, THE CURRENT AMOUNT IS $_____ PER _____.
597	7.  IF THE ASSOCIATION IS STILL UNDER THE CONTROL OF THE
598	DEVELOPER, THE DEVELOPER MAY HAVE THE RIGHT TO AMEND THE
599	RESTRICTIVE COVENANTS WITHOUT THE APPROVAL OF THE ASSOCIATION
600	MEMBERSHIP OR THE APPROVAL OF THE PARCEL OWNERS.
601	8.  THE STATEMENTS CONTAINED IN THIS DISCLOSURE FORM ARE
602	ONLY SUMMARY IN NATURE, AND, AS A PROSPECTIVE PURCHASER, YOU
603	SHOULD REFER TO THE COVENANTS AND THE ASSOCIATION GOVERNING
604	DOCUMENTS BEFORE PURCHASING PROPERTY.
605	9.  THESE DOCUMENTS ARE EITHER MATTERS OF PUBLIC RECORD AND
606	CAN BE OBTAINED FROM THE RECORD OFFICE IN THE COUNTY WHERE THE
607	PROPERTY IS LOCATED, OR ARE NOT RECORDED AND CAN BE OBTAINED
608	FROM THE DEVELOPER.
609	10.  THERE MAY BE AN OBLIGATION TO PAY ASSESSMENTS (TAXES
610	AND/OR FEES) TO A COMMUNITY DEVELOPMENT DISTRICT FOR THE PURPOSE
611	OF RETIRING BOND OBLIGATIONS USED TO CONSTRUCT INFRASTRUCTURE
612	AND/OR OTHER IMPROVEMENTS.
613	11.  YOU ARE JOINTLY AND SEVERALLY LIABLE WITH THE PREVIOUS
614	OWNER OF YOUR PROPERTY FOR ALL UNPAID ASSESSMENTS THAT BECAME
615	DUE UP TO THE TIME OF TRANSFER OF TITLE.
616
617	DATE:     PURCHASER:
618	PURCHASER:
619	The disclosure must be supplied by the developer, or by the
620	parcel owner if the sale is by an owner that is not the
621	developer. Any contract or agreement for sale shall refer to and
622	incorporate the disclosure summary and shall include, in
623	prominent language, a statement that the potential buyer should
624	not execute the contract or agreement until they have received
625	and read the disclosure summary required by this section.
626	Section 12.  Effective July 1, 2009, part IV of chapter
627	720, Florida Statutes, to be entitled "Dispute Resolution"
628	consisting of sections 720.501, 720.502, 720.503, 720.504,
629	720.505, 720.506, 720.507, 720.508, 720.509, and 720.510, is
630	created to read:
631	720.501  Short title.--This part may be cited as the "Home
632	Court Advantage Dispute Resolution Act."
633	720.502  Legislative findings.--The Legislature finds that
634	alternative dispute resolution has made progress in reducing
635	court dockets and trials and in offering a more efficient, cost-
636	effective option to litigation.
637	720.503  Applicability.--
638	(1)  Unless otherwise provided in this part, before a
639	dispute described in this part between a homeowners' association
640	and a parcel owner or owners, or a dispute between parcel owners
641	within the same homeowners association, may be filed in court,
642	the dispute is subject to presuit mediation pursuant to s.
643	720.505 or presuit arbitration pursuant to s. 720.507, at the
644	option of the aggrieved party who initiates the first formal
645	action of alternative dispute resolution under this part. The
646	parties may mutually agree to participate in both presuit
647	mediation and by presuit arbitration prior to suit being filed
648	by either party.
649	(2)  Unless otherwise provided in this part, the mediation
650	and arbitration provisions of this part are limited to disputes
651	between an association and a parcel owner or owners, or between
652	parcel owners, regarding the use of or changes to the parcel or
653	the common areas under the governing documents or other disputes
654	involving violations of the recorded declaration of covenants or
655	other governing documents; disputes arising concerning
656	enforcement of the governing documents or any amendments
657	thereto; and disputes involving access to the official records
658	of the association. A dispute concerning title to any parcel or
659	common area; interpretation or enforcement of any warranty; the
660	levy of a fee or assessment; the collection of an assessment
661	levied against a party; the eviction or other removal of a
662	tenant from a parcel; alleged breaches of fiduciary duty by one
663	or more directors; or any action to collect mortgage
664	indebtedness or to foreclosure a mortgage shall not be subject
665	to the provisions of this part.
666	(3)  All disputes arising after the effective date of this
667	part involving the election of the board of directors for an
668	association or the recall of any member of the board or officer
669	of the association shall not be eligible for presuit mediation
670	under s. 720.505, but shall be subject to the provisions
671	concerning presuit arbitration under s. 720.507.
672	(4)  In any dispute subject to presuit mediation or presuit
673	arbitration under this part for which emergency relief is
674	required, a motion for temporary injunctive relief may be filed
675	with the court without first complying with the presuit
676	mediation or presuit arbitration requirements of this part.
677	After any issues regarding emergency or temporary relief are
678	resolved, the court may refer the parties to a mediation program
679	administered by the courts or require mediation or arbitration
680	under this part.
681	(5)  The mailing of a statutory notice of presuit mediation
682	or presuit arbitration as provided in this part shall toll the
683	applicable statute of limitations during the pendency of the
684	mediation or arbitration and for a period of 30 days following
685	the conclusion of either proceeding. The 30-day period shall
686	start upon the filing of the mediator's notice of impasse or the
687	arbitrator's written arbitration award. If the parties mutually
688	agree to participate in both presuit mediation and presuit
689	arbitration under this part, then the tolling of the applicable
690	statute of limitations for each such alternative dispute
691	resolution proceeding shall be consecutive.
692	720.504  Notice of violation.--Prior to giving the
693	statutory notice to proceed under presuit medication or presuit
694	arbitration under this part, the aggrieved association or parcel
695	owner shall first provide written notice of the alleged
696	violation to the alleged violator in the manner provided by this
697	section.
698	(1)  The notice of violation shall be delivered to the
699	alleged violator by certified mail, return receipt requested, or
700	hand delivered. The person making delivery shall file with their
701	notice of mediation either the proof of receipt of mailing or an
702	affidavit stating the date and time of the delivery of the
703	notice of violation. If the notice is delivered by certified
704	mail, return receipt requested and the alleged violator fails or
705	refuses to accept delivery, notice shall be considered properly
706	delivered for purposes of this section on the date of the first
707	attempted delivery.
708	(2)  The notice of violation shall state with specificity
709	the nature of the alleged violation, including the date, time,
710	and location of each violation and the action requested to abate
711	or otherwise correct the violation. The notice shall also
712	include the text of any provision in the governing documents,
713	including the rules and regulations, of the association that
714	have allegedly been violated.
715	(3)  Unless the parties otherwise agree in writing to a
716	longer time period for abatement, the party receiving the notice
717	of violation shall have 10 days from the date of receipt of
718	notice to correct the violation. If the alleged violation has
719	not been abated within or otherwise corrected within the 10-day
720	period, the party alleging the violation may proceed under this
721	part at any time thereafter within the applicable statute of
722	limitations.
723	(4)  A copy of the notice and the text of the provision in
724	the governing documents or the rules and regulations of the
725	association that has allegedly been violated, along with proof
726	of service of the notice of violation and a copy of any written
727	responses received from the alleged violator, shall be included
728	as an exhibit to any demand for mediation or arbitration under
729	this part.
730	720.505  Presuit mediation.--
731	(1)  Disputes between an association and a parcel owner or
732	owners and between parcel owners must be submitted to presuit
733	mediation before the dispute may be filed in court, or at the
734	election of the party initiating the presuit procedures such
735	dispute may be submitted to presuit arbitration pursuant to s.
736	720.507, before the dispute may be filed in court. An aggrieved
737	party who elects to utilize the presuit mediation procedure
738	under this section shall serve on the responding party a written
739	notice of presuit mediation in substantially the following form:
740
741	STATUTORY NOTICE OF PRESUIT MEDIATION
742
743	The alleged aggrieved party, ____________________,
744	hereby demands that ____________________, as the
745	responding party, engage in mandatory presuit
746	mediation in connection with a dispute(s) with you,
747	which by statute are of a type that are subject to
748	presuit mediation:
749
750	Attached is a copy of the prior notice of violation
751	which details the specific nature of the dispute(s)to
752	be mediated and the authority supporting a finding of
753	a violation as to each dispute, including, but not
754	limited to, the applicable provisions of the governing
755	documents of the association believed to apply to the
756	dispute between the parties, and a copy of the notice
757	you received or refused and copies of any written
758	response(s) received from you about this dispute.
759
760	Pursuant to part IV of chapter 720, Florida Statutes,
761	this demand to resolve the dispute through presuit
762	mediation is required before a lawsuit can be filed
763	concerning the dispute. Pursuant to Florida Statutes,
764	the parties are required to engage in presuit
765	mediation with a neutral third-party mediator in order
766	to attempt to resolve this dispute without court
767	action, and the aggrieved party demands that you
768	participate in this process. Unless you respond to
769	this notice by filing with the aggrieved party a
770	notice of opting out and demand for arbitration under
771	s. 720.506, Florida Statutes, your failure to
772	participate in the mediation process may result in a
773	lawsuit being filed in court against you without
774	further notice.
775
776	The process of mediation involves a supervised
777	negotiation process in which a trained, neutral third-
778	party mediator meets with both parties and assists
779	them in exploring possible opportunities for resolving
780	part or all of the dispute. By agreeing to participate
781	in presuit mediation, you are not bound in any way to
782	change your position. Furthermore, the mediator has no
783	authority to make any decisions in this matter or to
784	determine who is right or wrong and merely acts as a
785	facilitator to ensure that each party understands the
786	position of the other party and that all options for
787	reasonable settlement are fully explored.
788
789	If an agreement is reached, it shall be reduced to
790	writing and become a binding and enforceable contract
791	between the parties. A resolution of one or more
792	disputes in this fashion avoids the need to litigate
793	these issues in court. The failure to reach an
794	agreement, or the failure of a party to participate in
795	the process, results in the mediator declaring an
796	impasse in the mediation, after which the aggrieved
797	party may proceed to file a law suit on all
798	outstanding, unsettled disputes. If you have failed or
799	refused to participate in the entire mediation
800	process, you will not be entitled to recover
801	attorney's fees if you prevail in a subsequent court
802	proceeding involving the same dispute.
803
804	The aggrieved party has selected from a list of
805	eligible qualified mediators at least five certified
806	mediators who the aggrieved party believes to be
807	neutral and qualified to mediate the dispute. You have
808	the right to select any one of these mediators. The
809	fact that one party may be familiar with one or more
810	of the listed mediators does not mean that the
811	mediator cannot act as a neutral and impartial
812	facilitator. The names of the mediators that the
813	aggrieved party hereby submits to you from whom you
814	may choose one, and their current addresses, telephone
815	numbers and hourly rates, are as follows:
816
817	(List the names, addresses, telephone numbers, and
818	hourly rates of the mediators. Other pertinent
819	information about the background of the mediators may
820	be included as an attachment.)
821
822	You may contact the offices of these mediators to
823	confirm that each of the above listed mediators will
824	be neutral and will not show any favoritism toward
825	either party. Unless otherwise agreed to by the
826	parties, part IV of chapter 720, Florida Statutes,
827	requires that the parties share the costs of presuit
828	mediation equally, including the fee charged by the
829	mediator. An average mediation may require 3 to 4
830	hours of the mediator's time, including some
831	preparation time, and the parties would need to
832	equally share the mediator's fees as well as be
833	responsible for all of their own attorney's fees if
834	they choose to employ an attorney in connection with
835	the mediation. However, use of an attorney is not
836	required and is at the option of each party. The
837	mediators may require the advance payment of some or
838	all of the anticipated fees. The aggrieved party
839	hereby agrees to pay or prepay one-half of the
840	selected mediator's estimated fees and to forward this
841	amount or such other reasonable advance deposits as
842	the mediator requires for this purpose upon the
843	selection of the mediator. Any funds deposited will be
844	returned to you if these funds are in excess of your
845	share of the mediator fees incurred.
846
847	To begin your participation in presuit mediation to
848	try to resolve the dispute with you and avoid further
849	legal action, please sign below and clearly indicate
850	which mediator is acceptable to you from the five
851	mediators listed by the aggrieved party above.
852
853	You must respond in writing to this statutory notice
854	of presuit mediation within 20 days. In your response
855	you must provide a listing of at least three dates and
856	times in which you are available to participate in the
857	mediation that are within 90 days after the postmarked
858	date of the mailing of this notice of presuit
859	mediation or within 90 days after the date you were
860	served with a copy of this notice. The aggrieved party
861	will then ask the mediator to schedule a mutually
862	convenient time and place for the mediation conference
863	to be held. If you do not provide a list of available
864	dates and times, the mediator is authorized to
865	schedule a mediation conference without taking your
866	schedule and convenience into consideration. In no
867	event shall the mediation conference be later than 90
868	days after the notice of presuit mediation was first
869	served unless all parties mutually agree otherwise.
870	in the event that you fail to respond within 20 days
871	after the date of this notice, fail to provide the
872	mediator with dates and times in which you are
873	available for the mediation conference, fail to agree
874	to at least one of the mediators that the aggrieved
875	party has listed, fail to pay or prepay to the
876	mediator one-half of the costs involved, or fail to
877	appear and participate at the scheduled mediation, the
878	aggrieved party will be authorized to proceed with the
879	filing of a lawsuit against you without further
880	notice. In any subsequent court action, the aggrieved
881	party may seek an award of reasonable attorney's fees
882	and costs incurred in attempting to obtain mediation.
883
884	Please give this matter your immediate attention. By
885	law, your response must be mailed by certified, first-
886	class mail, return receipt requested, to the aggrieved
887	party listed above at the address shown on this notice
888	and postmarked no more than 20 days after the date of
889	the postmarked date for this notice or within 20 days
890	after the date upon which you were served with a copy
891	of this notice.
892
893	________________________
894	Signature of aggrieved party
895
896	______________________
897	Printed name of aggrieved party
898
899	Responding party: your signature below indicates your
900	acceptance of the agreement to mediate.
901
902	AGREEMENT TO MEDIATE
903
904	The undersigned hereby agrees to participate in
905	presuit mediation and agrees to attend a mediation
906	conducted by the following mediator(s) listed below as
907	acceptable to mediate this dispute:
908
909	(List one acceptable mediator from those listed by the
910	aggrieved party.)
911
912	The undersigned hereby represents that he or she can
913	attend and participate in the presuit mediation at the
914	following dates and times:
915
916	(List at least three available dates and times within
917	the 90-day time limit described above.)
918
919	I/We further agree to pay or prepay one-half of the
920	mediator's fees and to forward such advance deposits
921	as the mediator may require for this purpose.
922
923	______________________________
924	Signature of responding party #1
925	______________________________
926	Telephone contact information
927	______________________________
928	Signature and telephone contact information of
929	responding party #2, if applicable. If the property is
930	owned by more than one person, all parcel owners or
931	unit owners who are subject of the dispute must sign
932	or have a person acting under authority of a power of
933	attorney sign.
934
935	(2)(a)  Service of the notice of presuit mediation shall be
936	effected either by personal service, as provided in chapter 48,
937	or by certified mail, return receipt requested, in a letter in
938	substantial conformity with the form provided in subsection (1),
939	with an additional copy being sent by regular first-class mail,
940	to the address of the responding party as it last appears on the
941	books and records of the association or if not available, then
942	as it last appears in the official records of the county
943	property appraiser where the parcel in dispute is located. The
944	responding party has either 20 days after the postmarked date of
945	the mailing of the statutory notice or 20 days after the date
946	the responding party is served with a copy of the notice to
947	serve a written response to the aggrieved party. The response
948	shall be served by certified mail, return receipt requested,
949	with an additional copy being sent by regular first-class mail,
950	to the address shown on the statutory notice. The date of the
951	postmark on the envelope for the response shall constitute the
952	date that the response is served. Once the parties have agreed
953	on a mediator, the mediator may schedule or reschedule the
954	mediation for a date and time mutually convenient to the parties
955	within 90 days after the date of service of the statutory
956	notice. After such 90-day period, the mediator may reschedule
957	the mediation only upon the mutual written agreement of all the
958	parties.
959	(b)  The parties shall share the costs of presuit mediation
960	equally, including the fee charged by the mediator, if any,
961	unless the parties agree otherwise, and the mediator may require
962	advance payment of his or her reasonable fees and costs. Each
963	party shall be responsible for their own attorney's fees, if a
964	party chooses to be represented by an attorney at the mediation.
965	(c)  The party responding to the aggrieved party may either
966	provide a notice of opting out pursuant to s. 720.506, and
967	demand arbitration, or the responding party shall sign the
968	agreement to mediate included in the notice of presuit mediation
969	and clearly indicate the name of the mediator who is acceptable
970	from the five names provided by the aggrieved party. The
971	responding party must provide in their response a list of dates
972	and times in which the responding party is available to
973	participate in the mediation within 90 days after the date the
974	responding party was served, either by process server or by
975	certified mail, with the statutory notice of presuit mediation.
976	(d)  The mediator who has been selected and agreed to
977	mediate must schedule the mediation conference at a mutually
978	convenient time and place within that 90-day period. However, if
979	the responding party does not provide a list of available dates
980	and times, the mediator is authorized to schedule a mediation
981	conference without taking the responding party's schedule and
982	convenience into consideration. Within 10 days after the
983	designation of the mediator, the mediator shall coordinate with
984	the parties and notify the parties in writing of the date, time,
985	and place of the mediation conference.
986	(e)  The mediation conference must be held on the scheduled
987	date and may be rescheduled if a rescheduled date is approved by
988	the mediator. However, in no event shall the mediation be held
989	later than 90 days after the notice of presuit mediation was
990	first served, unless all parties mutually agree in writing
991	otherwise. If the presuit mediation is not completed within the
992	required time limits the mediator shall declare an impasse
993	unless the mediation date is extended by mutual written
994	agreement by all parties and approved by the mediator.
995	(f)  If the responding party fails to respond within 30
996	days after the date of service of the statutory notice of
997	presuit mediation, fails to agree either to at least one of the
998	mediators listed by the aggrieved party in the notice, fails to
999	pay or prepay to the mediator one-half of the costs of the
1000	mediator, or fails to appear and participate at the scheduled
1001	mediation, the aggrieved party shall be authorized to proceed
1002	with the filing of a lawsuit without further notice.
1003	(g)1.  Failure of any party to respond to the statutory
1004	notice of presuit mediation within 20 days, failure to agree
1005	upon a mediator, failure to provide a listing of dates and times
1006	in which the responding party is available to participate in the
1007	mediation within 90 days after the date the responding party was
1008	served with the statutory notice of presuit mediation, failure
1009	to make payment of fees and costs within the time established by
1010	the mediator, or failure to appear for a scheduled mediation
1011	session without the approval of the mediator, shall, in each
1012	instance, constitute a failure or refusal to participate in the
1013	mediation process and shall operate as an impasse in the presuit
1014	mediation by such party, entitling the other party to file a
1015	lawsuit in court and to seek an award of the costs and
1016	attorney's fees associated with the mediation.
1017	2.  Persons who fail or refuse to participate in the entire
1018	mediation process may not recover attorney's fees and costs in
1019	subsequent litigation relating to the same dispute between the
1020	same parties. If any presuit mediation session cannot be
1021	scheduled and conducted within 90 days after the offer to
1022	participate in mediation was filed, through no fault of either
1023	party, then an impasse shall be deemed to have occurred unless
1024	the parties mutually agree in writing to extend this deadline.
1025	In the event of such impasse, each party will be responsible for
1026	its own costs and attorney's fees and one-half of any mediator
1027	fees and filing fees, and either party may file a lawsuit in
1028	court regarding the dispute.
1029	720.506  Opt out of presuit mediation.--A party served with
1030	a notice of presuit mediation under s. 720.505, may opt out of
1031	presuit mediation and demand that the dispute proceed under
1032	nonbinding arbitration in the following manner provided in this
1033	section:
1034	(1)  In lieu of a response to the notice of presuit
1035	mediation as required under s. 720.505, the responding party may
1036	serve upon the aggrieved party in the same manner as the
1037	response to a notice for presuit mediation under s. 720.505, a
1038	notice of opting out of mediation and demand that the dispute
1039	instead proceed to presuit arbitration under s. 720.507.
1040	(2)  Where a party elects to opt out of presuit mediation
1041	in favor of nonbinding arbitration, the aggrieved party shall
1042	not be required to comply with the requirements of s. 720.505.
1043	(3)  Except as otherwise provided in this part, the choice
1044	of which presuit alternative dispute resolution procedure is
1045	utilized shall be at the election of the aggrieved party who
1046	first initiated such proceeding after complying with the
1047	provisions of s. 720.504.
1048	720.507  Presuit arbitration.--
1049	(1)  Disputes between an association and a parcel owner or
1050	owners and disputes between parcel owners are subject to a
1051	demand for presuit arbitration pursuant to s. 720.507, before
1052	the dispute may be filed in court. A party who elects to utilize
1053	the presuit arbitration procedure under this part shall serve on
1054	the responding party a written notice of presuit arbitration in
1055	substantially the following form:
1056
1057	STATUTORY NOTICE OF PRESUIT ARBITRATION
1058
1059	The alleged aggrieved party, ____________________,
1060	hereby demands that ____________________, as the
1061	responding party, engage in mandatory presuit
1062	arbitration in connection with the following
1063	dispute(s) with you, which by statute are of a type
1064	that are subject to presuit arbitration:
1065
1066	(List specific nature of the dispute or disputes to be
1067	arbitrated and the authority supporting a finding of a
1068	violation as to each dispute, including, but not
1069	limited to, all applicable provisions of the governing
1070	documents believed to apply to the dispute between the
1071	parties.)
1072
1073	Pursuant to part IV of chapter 720, Florida Statutes,
1074	this demand to resolve the dispute through presuit
1075	arbitration is required before a lawsuit can be filed
1076	concerning the dispute. Pursuant to Florida Statutes,
1077	the parties are required to engage in presuit
1078	arbitration with a neutral third-party arbitrator in
1079	order to attempt to resolve this dispute without court
1080	action, and the aggrieved party demands that you
1081	participate in this process. If you fail to
1082	participate in the arbitration process, a lawsuit may
1083	be brought against you in court without further
1084	warning.
1085
1086	The process of arbitration involves a neutral third
1087	person who considers the law and facts presented by
1088	the parties and renders a written decision called an
1089	"arbitration award." Pursuant to s. 720.507, Florida
1090	Statutes, the arbitration award shall be final unless
1091	a lawsuit is filed in a court of competent
1092	jurisdiction for the judicial circuit in which the
1093	parcel(s) governed by the homeowners' association
1094	is/are located within 30 days after the date that the
1095	arbitration award.
1096
1097	If a settlement agreement is reached before the
1098	arbitration award, it shall be reduced to writing and
1099	become a binding and enforceable contract of the
1100	parties. A resolution of one or more disputes in this
1101	fashion avoids the need to arbitrate these issues or
1102	to litigate these issues in court and shall be the
1103	same as a settlement agreement reached between the
1104	parties under s. 720.505, Florida Statutes. The
1105	failure of a party to participate in the arbitration
1106	process may result in the arbitrator issuing an
1107	arbitration award by default in the arbitration. If
1108	you have failed or refused to participate in the
1109	entire arbitration process, you will not be entitled
1110	to recover attorney's fees, even if you prevail in a
1111	subsequent court proceeding involving the same dispute
1112	between the same parties.
1113
1114	The aggrieved party has selected at least five
1115	arbitrators who the aggrieved party believes to be
1116	neutral and qualified to arbitrate the dispute. You
1117	have the right to select any one of the arbitrators.
1118	The fact that one party may be familiar with one or
1119	more of the listed arbitrators does not mean that the
1120	arbitrator cannot act as a neutral and impartial
1121	arbitrator. Any arbitrator who cannot act in this
1122	capacity is required ethically to decline to accept
1123	engagement. The names of the five arbitrators that the
1124	aggrieved party has chosen from which you may select
1125	one, and their current addresses, telephone numbers,
1126	and hourly rates, are as follows:
1127
1128	(List the names, addresses, telephone numbers, and
1129	hourly rates of at least five arbitrators.)
1130
1131	You may contact the offices of these arbitrators to
1132	confirm that the listed arbitrators will be neutral
1133	and will not show any favoritism toward either party.
1134
1135	Unless otherwise agreed to by the parties, part IV of
1136	chapter 720, Florida Statutes, requires that the
1137	parties share the costs of presuit arbitration
1138	equally, including the fee charged by the arbitrator.
1139	the parties shall be responsible for their own
1140	attorney's fees if they choose to employ an attorney
1141	in connection with the arbitration. However, use of an
1142	attorney to represent you for the arbitration is not
1143	required. The arbitrator selected may require the
1144	advance payment of some or all of the anticipated
1145	fees. The aggrieved party hereby agrees to pay or
1146	prepay one-half of the selected arbitrator's estimated
1147	fees and to forward this amount or such other
1148	reasonable advance deposits as the arbitrator who is
1149	selected requires for this purpose. Any funds
1150	deposited will be returned to you if these funds are
1151	in excess of your share of the fees incurred.
1152
1153	Please sign the agreement to arbitrate below and
1154	clearly indicate the name of the arbitrator who is
1155	acceptable to you from the names listed by the
1156	aggrieved party.
1157
1158	You must respond in writing to this statutory notice
1159	within 20 days after the date that the notice of
1160	presuit arbitration was either personally served on
1161	you or 20 days after the postmarked date that this
1162	notice of presuit arbitration was sent to you by
1163	certified mail. You must also provide a list of at
1164	least three dates and times in which you are available
1165	to participate in the arbitration that are within 90
1166	days after either the date you were personally served
1167	or 90 days after the postmarked date of the certified
1168	mailing of this statutory notice of presuit
1169	arbitration. A copy of this notice and your response
1170	will be provided by the aggrieved party to the
1171	arbitrator selected and the arbitrator will schedule a
1172	mutually convenient time and place for the arbitration
1173	conference to be held. If you do not provide a list of
1174	available dates and times, the arbitrator is
1175	authorized to schedule an arbitration conference
1176	without taking your schedule and convenience into
1177	consideration. The arbitration conference must be held
1178	on the scheduled date, or any rescheduled date
1179	approved by the arbitrator. In no event shall the
1180	arbitration conference be later than 90 days after
1181	notice of the presuit arbitration was first served,
1182	unless all parties mutually agree in writing
1183	otherwise. If the arbitration is not completed within
1184	the required time limits, the arbitrator shall issue
1185	an arbitration award, unless the hearing is extended
1186	by mutual written agreement of the parties and
1187	approved by the arbitrator. In the event that you fail
1188	to respond within 20 days after the date you were
1189	served with a copy of this notice, fail to provide the
1190	arbitrator with dates and times in which you are
1191	available for the arbitration conference, fail to
1192	agree either to one of the arbitrators that the
1193	aggrieved party has named, fail to pay or prepay to
1194	the arbitrator one-half of the costs involved as
1195	required, or fail to appear and participate at the
1196	scheduled arbitration conference, the aggrieved party
1197	may request the arbitrator to issue an arbitration
1198	award. In the subsequent court action, the aggrieved
1199	party shall be entitled to recover an award of
1200	reasonable attorney's fees and costs, including any
1201	fees paid to the arbitrator, incurred in obtaining an
1202	arbitration award pursuant to s. 720.507, Florida
1203	Statutes.
1204
1205	Please give this matter your immediate attention. By
1206	law, your response must be postmarked and mailed by
1207	certified, first-class mail, return receipt requested,
1208	to the address shown on this notice of presuit
1209	arbitration.
1210
1211	_________________________
1212	Signature of aggrieved party
1213
1214	______________________
1215	Printed name of aggrieved party
1216
1217	Responding party: your signature below indicates your
1218	acceptance of the agreement to arbitrate.
1219
1220	AGREEMENT TO ARBITRATE
1221
1222	The undersigned hereby agrees to participate in
1223	presuit arbitration and agrees to attend an
1224	arbitration conducted by the following arbitrator
1225	listed below as someone who would be acceptable to
1226	arbitrate this dispute:
1227
1228	(In your response either select the name of one
1229	arbitrator that is acceptable to you from those
1230	arbitrators listed by the aggrieved party.)
1231
1232	The undersigned hereby represents that he or she is
1233	available and able to attend and participate in the
1234	presuit arbitration conference at the following dates
1235	and times:
1236
1237	(List all available dates and times, of which there
1238	must be at least three, within 90 days after the date
1239	on which you were served, either by process server or
1240	by certified mail, with the notice of presuit
1241	arbitration.)
1242
1243	I/We further agree to pay or prepay one-half of the
1244	arbitrator's fees and to forward such advance deposits
1245	as the arbitrator may require for this purpose.
1246
1247	______________________________
1248	Signature of responding party #1
1249	______________________________
1250	Telephone contact information
1251	______________________________
1252	Signature and telephone contact information of
1253	responding party #2, if applicable. If the property is
1254	owned by more than one person, all owners must sign,
1255	or a person may sign who is acting under authority of
1256	a valid power of attorney granted by an owner.
1257
1258	(2)(a)  Service of the statutory notice of presuit
1259	arbitration shall be effected either by personal service, as
1260	provided in chapter 48, or by certified mail, return receipt
1261	requested, in a letter in substantial conformity with the form
1262	provided in subsection (1), with an additional copy being sent
1263	by regular first-class mail, to the address of the responding
1264	party as it last appears on the books and records of the
1265	association, or if not available, the last address as it appears
1266	on the official records of the county property appraiser for the
1267	county in which the property is situated that is subject to the
1268	association documents. The responding party has 20 days after
1269	the postmarked date of the certified mailing of the statutory
1270	notice of presuit arbitration or 20 days after the date the
1271	responding party is personally served with the statutory notice
1272	of presuit arbitration by to serve a written response to the
1273	aggrieved party. The response shall be served by certified mail,
1274	return receipt requested, with an additional copy being sent by
1275	regular first-class mail, to the address shown on the statutory
1276	notice of presuit arbitration. The postmarked date on the
1277	envelope of the response shall constitute the date the response
1278	was served.
1279	(b)  The parties shall share the costs of presuit
1280	arbitration equally, including the fee charged by the
1281	arbitrator, if any, unless the parties agree otherwise, and the
1282	arbitrator may require advance payment of his or her reasonable
1283	fees and costs. Each party shall be responsible for all of their
1284	own attorney's fees if a party chooses to be represented by an
1285	attorney for the arbitration proceedings.
1286	(c)1.  The party responding to the aggrieved party must
1287	sign the agreement to arbitrate included in the notice of
1288	presuit arbitration and clearly indicate the name of the
1289	arbitrator who is acceptable of those arbitrators listed by the
1290	aggrieved party. The responding party must provide a list of at
1291	least three dates and times in which the responding party is
1292	available to participate in the arbitration conference within 90
1293	days after the date the responding party was served with the
1294	statutory notice of presuit arbitration.
1295	2.  The arbitrator must schedule the arbitration conference
1296	at a mutually convenient time and place, but if the responding
1297	party does not provide a list of available dates and times, the
1298	arbitrator is authorized to schedule an arbitration conference
1299	without taking the responding party's schedule and convenience
1300	into consideration. Within 10 days after the designation of the
1301	arbitrator, the arbitrator shall notify the parties in writing
1302	of the date, time, and place of the arbitration conference.
1303	3.  The arbitration conference must be held on the
1304	scheduled date and may be rescheduled if approved by the
1305	arbitrator. However, in no event shall the arbitration hearing
1306	be later than 90 days following the notice of presuit
1307	arbitration was first served, unless all parties mutually agree
1308	in writing otherwise. If the arbitration hearing is not
1309	completed within the required time limits, the arbitrator may
1310	issue an arbitration award unless the time for the hearing is
1311	extended as provided herein. If the responding party fails to
1312	respond within 20 days after the date of statutory notice of
1313	presuit arbitration, fails to agree to at least one of the
1314	arbitrators that have been listed by the aggrieved party in the
1315	presuit notice of arbitration, fails to pay or prepay to the
1316	arbitrator one-half of the costs involved, or fails to appear
1317	and participate at the scheduled arbitration, the aggrieved
1318	party is authorized to proceed with a request that the
1319	arbitrator issue an arbitration award.
1320	(d)1.  Failure of any party to respond to the statutory
1321	notice of presuit arbitration within 20 days, failure to either
1322	select one of the five arbitrators listed by the aggrieved
1323	party, failure to provide a listing of dates and times in which
1324	the responding party is available to participate in the
1325	arbitration conference within 90 days after the date of the
1326	responding party being served with the statutory notice of
1327	presuit arbitration, failure to make payment of fees and costs
1328	as required within the time established by the arbitrator, or
1329	the failure to appear for an arbitration conference without the
1330	approval of the arbitrator, shall entitle the other party to
1331	request the arbitrator to enter an arbitration award, including
1332	an award of the reasonable costs and attorney's fees associated
1333	with the arbitration.
1334	2.  Persons who fail or refuse to participate in the entire
1335	arbitration process may not recover attorney's fees and costs in
1336	any subsequent litigation proceeding relating to the same
1337	dispute involving the same parties.
1338	(3)(a)  In an arbitration proceeding, the arbitrator may
1339	not consider any unsuccessful mediation of the dispute.
1340	(b)  An arbitrator in a proceeding initiated pursuant to
1341	the provisions of this part may shorten the time for discovery
1342	or otherwise limit discovery in a manner consistent with the
1343	policy goals of this part to reduce the time and expense of
1344	litigating homeowners' association disputes initiated pursuant
1345	to this chapter and promoting an expeditious alternative dispute
1346	resolution procedure for parties to such actions.
1347	(4)  At the request of any party to the arbitration, the
1348	arbitrator may issue subpoenas for the attendance of witnesses
1349	and the production of books, records, documents, and other
1350	evidence, and any party on whose behalf a subpoena is issued may
1351	apply to the court for orders compelling such attendance and
1352	production. Subpoenas shall be served and are enforceable in the
1353	manner provided by the Florida Rules of Civil Procedure.
1354	Discovery may, at the discretion of the arbitrator, be permitted
1355	in the manner provided by the Florida Rules of Civil Procedure.
1356	(5)  The final arbitration award shall be sent to the
1357	parties in writing no later than 30 days after the date of the
1358	arbitration hearing, absent extraordinary circumstances
1359	necessitating a later filing the reasons for which shall be
1360	stated in the final award if filed more than 30 days after the
1361	date of the final session of the arbitration conference. An
1362	agreed arbitration award is final in those disputes in which the
1363	parties have mutually agreed to be bound. An arbitration award
1364	decided by the arbitrator is final unless a lawsuit seeking a
1365	trial de novo is filed in a court of competent jurisdiction
1366	within 30 days after the date of the arbitration award. The
1367	right to file for a trial de novo entitles the parties to file a
1368	complaint in the appropriate trial court for a judicial
1369	resolution of the dispute. The prevailing party in an
1370	arbitration proceeding shall be awarded the costs of the
1371	arbitration and reasonable attorney's fees in an amount
1372	determined by the arbitrator.
1373	(6)  The party filing a motion for a trial de novo shall be
1374	assessed the other party's arbitration costs, court costs, and
1375	other reasonable costs, including attorney's fees, investigation
1376	expenses, and expenses for expert or other testimony or evidence
1377	incurred after the arbitration hearing if the judgment upon the
1378	trial de novo is not more favorable than the final arbitration
1379	award.
1380	720.508  Rules of procedure.--
1381	(1)  Presuit mediation and presuit arbitration proceedings
1382	under this part must be conducted in accordance with the
1383	applicable Florida Rules of Civil Procedure and rules governing
1384	mediations and arbitrations under chapter 44, except this part
1385	shall be controlling to the extent of any conflict with other
1386	applicable rules or statutes. The arbitrator can shorten any
1387	applicable time period and otherwise limit the scope of
1388	discovery on request of the parties or within the discretion of
1389	the arbitrator exercised consistent with the purpose and
1390	objective of reducing the expense and expeditiously concluding
1391	proceedings under this part.
1392	(2)  Presuit mediation proceedings under s. 720.505 are
1393	privileged and confidential to the same extent as court-ordered
1394	mediation under chapter 44. An arbitrator or judge may not
1395	consider any information or evidence arising from the presuit
1396	mediation proceeding except in a proceeding to impose sanctions
1397	for failure to attend a presuit mediation session or to enforce
1398	a mediated settlement agreement.
1399	(3)  Persons who are not parties to the dispute may not
1400	attend the presuit mediation conference without consent of all
1401	parties, with the exception of counsel for the parties and a
1402	corporate representative designated by the association. Presuit
1403	mediations under this part are not a board meeting for purposes
1404	of notice and participation set forth in this chapter.
1405	(4)  Attendance at a mediation conference by the board of
1406	directors shall not require notice or participation by nonboard
1407	members as otherwise required by this chapter for meetings of
1408	the board.
1409	(5)  Settlement agreements resulting from a mediation or
1410	arbitration proceeding do not have precedential value in
1411	proceedings involving parties other than those participating in
1412	the mediation or arbitration.
1413	(6)  Arbitration awards by an arbitrator shall have
1414	precedential value in other proceedings involving the same
1415	association or with respect to the same parcel owner.
1416	720.509  Mediators and arbitrators; qualifications and
1417	registration.--A person is authorized to conduct mediation or
1418	arbitration under this part if he or she has been certified as a
1419	circuit court civil mediator pursuant to the requirements
1420	adopted pursuant to s. 44.106, is a member in good standing with
1421	The Florida Bar, and otherwise meets all other requirements
1422	imposed by chapter 44.
1423	720.510  Enforcement of mediation settlement agreement or
1424	arbitration award.--
1425	(1)  A mediation settlement agreement may be enforced
1426	through the county or circuit court, as applicable, and any
1427	costs and attorney's fees incurred in the enforcement of a
1428	settlement agreement reached at mediation shall be awarded to
1429	the prevailing party in any enforcement action.
1430	(2)  Any party to an arbitration proceeding may enforce an
1431	arbitration award by filing a petition in a court of competent
1432	jurisdiction in which the homeowners' association is located.
1433	The prevailing party in such proceeding shall be awarded
1434	reasonable attorney's fees and costs incurred in such
1435	proceeding.
1436	(3)  If a complaint is filed seeking a trial de novo, the
1437	arbitration award shall be stayed and a petition to enforce the
1438	award may not be granted. Such award, however, shall be
1439	admissible in the court proceeding seeking a trial de novo.
1440	Section 13.  The Department of Health shall apply for and
1441	implement, if awarded, a federal grant for swimming pool and spa
1442	safety standards education and enforcement under the State
1443	Swimming Pool Safety Grant Program as established in 15 U.S.C.
1444	s. 8004. To ensure the state's eligibility for the grant award,
1445	the Department of Health, in coordination with the Department of
1446	Community Affairs and the Florida Building Commission, shall
1447	assess the Florida Statutes and the Florida Building Code to
1448	determine if additional changes are necessary to ensure
1449	compliance with federal standards regarding swimming pool and
1450	spa safety. The Department of Health shall provide the
1451	assessment to the Legislature by January 1, 2009.
1452	Section 14.  Except as otherwise expressly provided in this
1453	act, this act shall take effect July 1, 2008.

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