Chapter 2015-90, Laws of Florida, amended section 723.078(2)(i), Florida Statutes, to require that disputes involving the recall of any member of the board of directors of a mobile home homeowners’ association be submitted to binding arbitration ...

 

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

Division of Florida Condominiums, Timeshares and Mobile Homes

RULE NOS.:RULE TITLES:

61B-50.101Scope, Organization, Procedure, and Title

61B-50.105Initiation of Recall Arbitration

61B-50.106Computation of Time

61B-50.107Parties

61B-50.108Who May Appear; Criteria for Other Qualified Representatives

61B-50.115Filing; Service of Papers; Signing

61B-50.124Discovery

61B-50.1405Motions for Attorney's Fees and Costs

PURPOSE AND EFFECT: Chapter 2015-90, Laws of Florida, amended section 723.078(2)(i), Florida Statutes, to require that disputes involving the recall of any member of the board of directors of a mobile home homeowners’ association be submitted to binding arbitration before the Division. Additionally, Chapter 2015-90, Laws of Florida, created section 723.1255, F.S., which requires the Division to adopt rules of procedure governing binding arbitration of mobile home homeowners’ association recall disputes.

SUMMARY: The amendment provides rules of procedure governing binding arbitration of mobile home homeowners’ association recall disputes.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: the economic review conducted by the agency.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 718.501(1)(f), 719.501(1)(f), 723.1255 FS.

LAW IMPLEMENTED: 718.112(2)(j), 718.1255, 719.106(1)(f), 719.1255, 723.078(2)(i) FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Debbie Miller Pennington, Government Analyst I, Division of Florida Condominiums, Timeshares, and Mobile Homes, 1940 North Monroe Street, Tallahassee, Florida 32399-1030, [phone]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

61B-50.101 Scope, Organization, Procedure, and Title.

(1) This chapter shall be entitled “The Rules of Procedure Governing Recall Arbitration” and shall govern the arbitration of a recall of one or more members of a board of administration of a condominium or cooperative association, or mobile home homeowners’ association. These rules shall be construed to secure the just, speedy and inexpensive determination of every proceeding. Specifically, this chapter applies to all proceedings held pursuant to Section 718.112(2)(j), or 719.106(1)(f), or 723.078(2)(i), F.S. The provisions of Chapter 682, F.S., and Chapter 61B-45, F.A.C., do not apply.

(2) All petitions and other papers filed with the division for recall arbitration pursuant to Sections 718.112(2)(j), and 719.106(1)(f), and 723.078(2)(i), F.S., and these rules, shall be filed at the official headquarters of the Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes, Attention: Arbitration Program, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-1029.

Rulemaking Authority 718.501(1)(f), 719.501(1)(f), 723.1255 FS. Law Implemented 718.112(2)(j), 718.1255, 719.106(1)(f), 719.1255, 723.078(2)(i) FS. History–New 7-1-82, Formerly 7D-50.01, Amended 7-27-88, Formerly 7D-50.001, Amended 1-17-93, Formerly 7D-50.101, Amended 1-19-97, 6-24-04,                 .

 

61B-50.105 Initiation of Recall Arbitration.

(1) When one or more members of a board of administration of a condominium or cooperative association or mobile home homeowners’ association have been recalled, the board of administration may initiate a recall arbitration by filing a petition for recall arbitration with the division, as follows:

(a) Recall at a Unit Owner or Member Meeting. Where the unit owners or members attempt to recall one or more members of a board at a unit owner or member meeting, and the board does not certify the recall, the board shall file a petition for arbitration with the division within five full business days after adjournment of the board meeting at which the board determined not to certify the recall.

(b) Recall by Written Agreement. Where the unit owners or members attempt to recall one or more members of a board by written agreement of a majority of the voting interests, and the board does not certify the written agreement to recall, the board shall file a petition for arbitration with the division within five full business days after adjournment of the board meeting at which the board determined not to certify the written agreement to recall.

(2) The time periods contained in Sections 718.112(2)(j), and 719.106(1)(f), and 723.078(2)(i), F.S., operate, for purposes of these arbitration rules and not for enforcement purposes under Section 718.501, 719.501, or 723.005, F.S., in the manner of statutes of limitation and are therefore subject to equitable considerations. However, where the board fails to timely comply with these rules relating to the filing of the petition for recall arbitration, the board must provide legitimate justification and must demonstrate that its actions or inactions were taken or based in good faith. The board’s claims of excusable neglect or the inability to identify defects in the recall effort within the time provided, or other unremarkable excuses will not be considered as proper defenses. The failure of an association to timely file a petition for recall arbitration within the time limits imposed under these rules or Chapters 718, and 719, and 723, F.S., will result in the certification of the recall and the immediate removal of the board members subject to recall; however, the failure of the association to timely file a petition for recall arbitration will not validate a written recall that is otherwise void at the outset for failing to obtain a majority of the voting interests or is deemed fatally defective for failing to substantially comply with the provisions of Rule 61B-23.0028, 61B-75.008, or 61B-33.003, Florida Administrative Code.

(3) Only the board of an association may file a petition for recall arbitration. Where the board fails to file a petition for recall arbitration as required by these rules and Chapters 718, and 719, and 723, Florida Statutes, the unit owners or members seeking to challenge the board’s decision not to file for recall arbitration may file a petition for arbitration pursuant to Section 718.1255(1)(b), or 719.1255, or 723.1255, F.S.

(4) No change.

(5) All petitions for arbitration of a recall shall be signed by either a duly authorized board member, a member of the Florida Bar, or a qualified representative who has been retained by the board. Each petition shall contain:

(a) through (b) No change.

(c) The name and address of the unit owner or member representative selected, pursuant to subparagraph 61B-23.0027(3)(b)2., or paragraph 61B-23.0028(1)(f), F.A.C., or subparagraph 61B-75.007(3)(b)2., or paragraph 61B-75.008(1)(f), subparagraph 61B-33.002(3)(b)1., or paragraph 61B-33.003(1)(f), F.A.C., to receive pleadings, notices, or other papers on behalf of the recalling unit owners or members;

(d) through (g) No change.

(h) Each specific basis upon which the board based its determination not to certify the recall, including the unit or mobile home lot number and specific defect to which each challenge applies. Any specific reason upon which the board bases its decision not to certify the recall that is stated in the petition for recall arbitration, but absent from the board meeting minutes or attachments thereto, shall be ineffective and shall not be considered by the arbitrator. A board member may be recalled with or without cause. The fact that a unit owner or member may have received misinformation is not a valid basis for rejecting a recall agreement and shall not be considered by the arbitrator;

(i) through (j) No change.

(6) If, during the pendency of a recall arbitration, the unit owners in the condominium or cooperative or members in the mobile home homeowners’ association attempt another recall effort and the board files another petition for arbitration, the newly filed petition shall be consolidated with the pending case.

(7) Upon receipt and review of a petition for arbitration of a recall of one or more board members, the division shall either accept or deny the petition. If the petition is accepted, within 10 days the arbitrator shall serve the respondent unit owners or members by mailing a copy of the petition and an order allowing answer by United States certified mail to the representative of the recalling unit owners or members identified in the petition.

Rulemaking Authority 718.501(1)(f), 719.501(1)(f), 723.1255 FS. Law Implemented 718.112(2)(j), 718.1255, 719.106(1)(f), 719.1255, 723.078(2)(i) FS. History–New 1-17-93, Formerly 7D-50.105, Amended 11-15-95, 6-24-04,            .

 

61B-50.106 Computation of Time.

(1) In computing the five full business days prescribed by Sections 718.112(2)(j), and 719.106(1)(f), and 723.078(2)(i), F.S., and these rules, the day of the act from which the period of time begins to run shall not be included. The last day of the period shall be included unless it is a Saturday, Sunday or legal holiday as prescribed by Section 110.117, F.S., in which event the period shall run until the end of the next business day.

(2) No change.

Rulemaking Authority 718.501(1)(f), 719.501(1)(f), 723.1255 FS. Law Implemented 718.112(2)(j), 719.106(1)(f), 723.078(2)(i) FS. History–New 7-1-82, Formerly 7D-50.02, 7D-50.002, Amended 1-17-93, Formerly 7D-50.106, Amended 11-15-95, 6-24-04,_______.

 

61B-50.107 Parties.

(1) Parties in any proceeding conducted in accordance with Section 718.112(2)(j), or 719.106(1)(f), or 723.078(2)(i), F.S., are petitioners or respondents.

(2) through (4) No change.

Rulemaking Authority 718.501(1)(f), 719.501(1)(f), 723.1255 FS. Law Implemented 718.112(2)(j), 719.106(1)(f), 723.078(2)(i) FS. History–New 7-1-82, Formerly 7D-50.03, Amended 7-27-88, Formerly 7D-50.003, Amended 1-17-93, Formerly 7D-50.107, Amended 6-24-04,          .

 

61B-50.108 Who May Appear; Criteria for Other Qualified Representatives.

(1) Any person who appears before an any arbitrator has the right, at that person’s own expense, to be accompanied, represented and advised by a member of the Florida Bar or by a qualified representative who is not a member of the Florida Bar, but who shall demonstrate his or her familiarity with and understanding of the arbitration rules of procedure, and with any relevant portions of Chapter 718, or 719, or 723, F.S., and the rules promulgated by the Division.

(2) No change.

(3) If the arbitrator is satisfied that the prospective non-attorney representative has the necessary qualifications to render competent and responsible representation of the unit owner’s or member’s interest in a manner that will not impair the fairness of the proceedings or the correctness of the action to be taken, the arbitrator shall authorize the prospective non-attorney representative to appear in the pending arbitration.

(4) The arbitrator shall make a determination of the qualifications of the prospective non-attorney representative in light of the nature, scope and extent of the proceedings, the proposed representation, the applicable federal and state laws, rules and regulations, and the factual and legal issues to be presented during the arbitration proceeding. (The prospective non-attorney representative shall not, however, be required to disclose facts and legal theories to the prejudice of his client.) In determining the qualifications of a prospective non-attorney representative, the arbitrator shall consider the following criteria to the extent they are relevant, material, and applicable to the proceeding:

(a) No change.

(b) The knowledge or experience of the prospective representative regarding Chapter 61B-50, F.A.C., The Rules of Procedure Governing Recall Arbitration, Section 718.112(2)(j)(k), or 719.106(1)(f), or 723.078(2)(i), F.S., and the scope and remedies of the arbitration process;

(c) through (h) No change.

(5) through (6) No change.

(7) Members of the Florida Bar and certified law students are bound by the Rules of Professional Conduct of the Rules Regulating the Florida Bar. For other qualified representatives, the following standards have been written. These standards of conduct are adopted as a mandatory guide for all representatives, including unit owner and member representatives chosen pursuant to subparagraph 61B-23.0027(3)(b)2., or paragraph 61B-23.0028(1)(f), subparagraph 61B-75.007(3)(b)2., paragraph 61B-75.008(1)(f), subparagraph 61B-33.002(3)(b)1., or paragraph 61B-33.003(1)(f), F.A.C., appearing in any arbitration proceeding, except counsel subject to disciplinary procedures of the Florida Bar.

(8) No change.

Rulemaking Authority 718.501(1)(f), 719.501(1)(f), 723.1255 FS. Law Implemented 718.112(2)(j), 718.1255, 719.106(1)(f), 719.1255, 723.078(2)(i) FS. History–New 7-1-82, Formerly 7D-50.04, Amended 7-27-88, Formerly 7D-50.004, Amended 1-17-93, Formerly 7D-50.108, Amended 2-13-97, 6-24-04,          .

 

61B-50.115 Filing; Service of Papers; Signing.

(1) No change.

(2) Method and Proof of Service.

(a) No change.

(b) When the unit owners or members have not designated a unit owner or member representative to represent their interest in a recall proceeding or when the unit owner or member representative cannot be ascertained, the arbitrator shall require that the association post a copy of the petition for recall arbitration and the order allowing answer on the condominium, cooperative, or mobile home park property in a conspicuous location as a means of notifying the unit owners or members of the recall arbitration.

(c) No change.

(3) through (5) No change.

Rulemaking Authority 718.501(1)(f), 719.501(1)(f), 723.1255 FS. Law Implemented 718.112(2)(j), 718.1255, 719.106(1)(f), 719.1255, 723.078(2)(i) FS. History–New 7-1-82, Formerly 7D-50.09, 7D-50.009, Amended 1-17-93, Formerly 7D-50.115, Amended 1-19-97, 6-24-04,          .

 

61B-50.124 Discovery.

(1) No change.

(2) Except as otherwise specified herein, parties may obtain discovery through the means and in the manner provided in Rules 1.280 through 1.390, Florida Rules of Civil Procedure. However, a unit owner or member desiring to obtain copies of official association records for use in the proceeding shall utilize the owner’s right of access to the official records as provided by Sections 718.111(12), and 719.104(2), and 723.079(4), F.S., in lieu of formal discovery.

(3) through (4) No change.

Rulemaking Authority 718.501(1)(f), 719.501(1)(f), 723.1255 FS. Law Implemented 718.112(2)(j), 718.1255, 719.106(1)(f), 719.1255, 723.078(2)(i) FS. History–New 7-1-82, Formerly 7D-50.15, 7D-50.015, Amended 1-17-93, Formerly 7D-50.124, Amended 1-19-97, 6-24-04,          .

 

61B-50.1405 Motions for Attorney’s Fees and Costs.

No party shall be entitled to recover its costs and attorney’s fees in a recall proceeding initiated pursuant to Section 718.112(2)(j), or 719.106(1)(f),  or 723.078(2)(i), F.S.

Rulemaking Authority 718.501(1)(f), 719.501(1)(f), 723.1255 FS. Law Implemented 718.112(2)(j), 718.1255, 719.106(1)(f), 723.078(2)(i) 719.1255 FS. History–New 6-24-04,           .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Kevin Stanfield, Director, Division of Florida Condominiums, Timeshares, and Mobile Homes, 1940 North Monroe Street, Tallahassee, Florida 32399-1030

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Ken Lawson, Secretary, Department of Business and Professional Regulation

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: November 6, 2015

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: September 28, 2015