Skip to Navigation | Skip to Main Content | Skip to Site Map

Account: Sign Up | Login

Florida Constitution Revision Commission

PUB 700060: A Right of Access to Judicial Recompence by Michael Holland

ARTICLE X: MISCELLANEOUS, New Section.

Catchline: The Right to Opt Out of Arbitration Clauses

(a) Definitions.

For the purposes of this section only:

(1) The term "contract" shall represent all financial or civil agreements, either written or verbal, that are recongnized as binding under applicable law or judicial precident in this State or any other State. It shall also apply to binding Terms of Service or Terms of Use agreements for service providers of all types that conduct business in this State, in person or via the internet or other telecommunication devices.

(2) The term "arbitration" applies to the practice of utilizing a neutral third party to settle disputes between two parties involved in a contract or agreement.

(3) The term "arbitration clause" applies to the practice of contractually mandating a consumer of goods or services into an agreement to use an arbitrator to settle disputes, waiving the right to seek recompence in the judicial system as a result. If a consumer of goods or services does not agree to this mandate, a denial of goods or services is either implied or implimented outright.

(4) The term "opt out" shall mean an explicit and deliberate action on the part of any party entering into any contract or agreement in this State to be able to decline a specific contractual clause without declining a contract or agreement in its entirety.

(5) The term "fees" shall include any and all legal fees, court filing costs, attorney's fees, or other costs associated with judicial action.

(b) Intent. Citizens of the State of Florida shall have the right to be protected as consumers of goods or services provided to them in this State. The State shall recognize that the practice of utilizing contractual arbitration clauses exists in this State, and as such, often requires its citizens to agree to arbitration in order to consume goods or services. While arbitration has many merits, specifically including reducing the strain of settling disputes on our judicial system, the agreement to the use of an arbitrator should be voluntary in this State, and opting out of the use of an arbitrator should not deny access to goods or services for any citizen of this State. No entity should have the ability to mandate the use of an arbitrator when any contract is agreed upon in this State. This section shall not hold citizens of this State liable for entering into such contracts. Rather, this section shall limit the opportunity to enter into such contracts by requiring that all contracts offering arbitration clauses in this State be structured under specific guidelines, as applicable by law, at the time they are offered to consumers of goods or services in this State.

(c) No person, government, or entity in this State shall be permitted the opportunity to enter into any contract with any person, government, or entity in this State or any other State if that contract:

(1) Includes an arbitration clause or similar agreement, AND

(2) Does not provide for the explicit and deliberate opportunity to opt into or opt out of the arbitration clause.

(d) The opportunity to opt into or opt out of an arbitration clause shall be provided for at the time as such an contract is agreed upon. Contractual provisions that allow for opting out of arbitration clauses at a later date IN LIEU OF at the time of agreement shall not be permitted under law in this State. Contractual provisions that allow for opting into or out of arbitration agreements both at the time of agreement AND at a later date shall be permitted under law in this State.

(e) No person, government, or entity in this State shall be permitted the opportunity to enter into any contract with any person, government, or entity in this State or any other State if that contract provides for an incentive to agree to an arbitration clause over opting out of an arbitration clause. Incentives shall include discounts for goods or services, mandates that legal fees shall be paid by individual parties as a condition of selection, or any other contractual, legal, or civil benefits. Persons opting out of arbitration clauses shall be afforded every equal protection and benefit offered to persons opting into arbitration clauses or agreeing to arbitration.

(f) Under no circumstances shall a person, government, or entity be denied access to goods or services in this State if they fail to agree to the use of binding arbitration.

(g) No part of this section shall imply that the use of arbitration clauses or binding arbitration is prohibited as a general practice in this State.