(1) After a petition
for arbitration is filed and assigned to an arbitrator, the respondent will be
mailed a copy of the petition by the arbitrator, and will be given an
opportunity to answer the petition. Unless a shorter time is ordered by the
arbitrator in cases where the health, safety, or welfare of the resident(s) of
a community is alleged to be endangered, a respondent shall file the answer
with the arbitrator, and shall mail a copy to the petitioner, within 20 days
after receipt of the petition. The answer shall include all defenses and
objections, and shall be filed on DBPR form ARB96-003, ANSWER TO PETITION,
incorporated in subsection
61B-45.001(3),
F.A.C. The answer shall not include a request for relief (counterclaim) against
the petitioner. Any claim or request for relief must be filed as a new petition
following the procedure provided in Rule
61B-45.017, F.A.C.
(2) The service of any motion under these
rules does not alter the period of time in which to file an answer, except that
service of a motion in opposition to the petition postpones the time for filing
of the answer until 20 days after the arbitrator's ruling on the motion. The
following defenses shall be made by motion in opposition to the petition:
(a) Lack of jurisdiction over the subject
matter,
(b) Lack of jurisdiction
over the person,
(c) Insufficiency
of process,
(d) Insufficiency of
service of process,
(e) Failure to
state a cause of action, and
(f)
Failure to join indispensable parties.
A motion making any of these defenses shall be made before
the filing of the answer. The grounds on which any of the enumerated defenses
are based and the substantial matters of law intended to be argued shall be
stated specifically and with particularity in the responsive pleading or
motion. Any ground not stated in the motion shall be deemed to be waived except
any ground showing that the division lacks jurisdiction of the subject matter
may be made at any time.
(3) Every defense in law or fact to a claim
for relief in a petition shall be asserted in the answer. Unless otherwise
determined by the arbitrator, any ground or defense not stated in the answer
shall be deemed to be waived except any ground showing that the arbitrator
lacks jurisdiction of the subject matter. Each defense shall be separately
stated and shall include an identification of all facts upon which the defense
is based. The defense of selective enforcement shall contain all examples of
selective enforcement upon which the respondent depends, shall indicate the
unit(s) to which each example pertains, shall identify the unit owner(s), how
long the violation has existed, and shall indicate whether the board knew of
the existence of the violation(s). The defense that the petitioner has failed
to provide the pre-arbitration notice required by Section
718.1255, F.S., is deemed waived
if not asserted by motion to dismiss set forth in subsection (2) above or in
the answer.
(4) An answer shall
separately identify all facts contained in the petition which the respondent
disputes, or shall in the alternative state that no disputed facts exist. All
facts not specifically denied shall be deemed admitted. A general denial does
not satisfy the requirements of this paragraph. Any answer which fails to
comply with this requirement shall be stricken.
Notes
Fla. Admin.
Code Ann. R. 61B-45.019
Specific Authority
718.1255,
719.1255 FS. Law Implemented
718.1255,
719.1255
FS.
New 4-1-92, Amended
2-2-93, Formerly 7D-45.019, Amended 9-21-94, 6-19-96,
7-4-04.
New 4-1-92, Amended 2-2-93, Formerly 7D-45.019, Amended
9-21-94, 6-19-96, 7-4-04.
