Business & Professions Subcommittee — Meeting Packet (December 11, 2019)
Summary
Meeting packet for the Business & Professions Subcommittee of the Florida House of Representatives Commerce Committee, Wednesday, December 11, 2019, 12:30 PM - 3:30 PM, in Webster Hall (212 Knott), chaired by Heather Fitzenhagen with Jose Oliva as Speaker. The agenda lists CS/HB 103 Subpoenas, HB 133 Towing and Immobilizing Vehicles and Vessels by Rep. McClain, HB 283 Liens and Bonds by Rep. Toledo, HB 481 Malt Beverages by Rep. Mariano, HB 583 Beverage Law by Rep. Sabatini, HB 623 Community Associations by Rep. Shoaf and HB 6037 Individual Wine Containers by Rep. LaMarca. The staff analysis of CS/HB 103 says the bill would let an applicant petition a court to compel compliance with a subpoena through indirect criminal contempt and a daily fine of between $100 and $1,000, for up to 60 days.
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Business & Professions Subcommittee
Wednesday, December 11, 2019
12:30 PM - 3:30 PM
Webster Hall (212 Knott)
Meeting Packet
Jose Oliva Heather Fitzenhagen
Speaker Chair
The Florida House of Representatives
Commerce Committee
Business & Professions Subcommittee
Jose Oliva Heather Fitzenhagen
Speaker Chair
AGENDA
Wednesday, December 11, 2019
Webster Hall (212 Knott)
12:30 PM - 3:30 PM
I. Call to Order & Roll Call
II. Welcoming Remarks
Ill. Consideration of the following bills(s):
CS/HB 103 by Civil Justice Subcommittee, Gottlieb, Fernandez-Barquin
Subpoenas
HB 133 by Rep. McClain
Towing and Immobilizing Vehicles and Vessels
HB 283 by Rep. Toledo
Liens and Bonds
HB 481 by Rep. Mariano
Malt Beverages
HB 583 by Rep. Sabatini
Beverage Law
HB 623 by Rep. Shoaf
Community Associations
HB 6037 by Rep. LaMarca
Individual Wine Containers
IV. Adjournment
303 House Office Building, 402 South Monroe Street, Tallahassee, Florida 32399-1300
(850) 717-4873 Fax: (850) 413-0419
Committee Meeting Notice
HOUSE OF REPRESENTATIVES
Business & Professions Subcommittee
Start Date and Time: Wednesday, December 11, 2019 12:30 pm
End Date and Time: Wednesday, December 11, 2019 03:30 pm
Location: Webster Hall (212 Knott)
Duration: 3.00 hrs
Consideration of the following bill(s):
CS/HB 103 Subpoenas by Civil Justice Subcommittee, Gottlieb, Fernandez-Barquin
HB 133 Towing and Immobilizing Vehicles and Vessels by McClain
HB 283 Liens and Bonds by Toledo
HB 481 Malt Beverages by Mariano
HB 583 Beverage Law by Sabatini
HB 623 Community Associations by Shoaf
HB 6037 Individual Wine Containers by LaMarca
Pursuant to rule 7.11, the deadline for amendments to bills on the agenda by non-appointed members shall
be 6:00 p.m., Tuesday, December 10, 2019.
By request of Chair Fitzenhagen, all Business & Professions Subcommittee members are asked to have
amendments to bills on the agenda submitted to staff by 6:00 p.m., Tuesday, December 10, 2019.
NOTICE FINALIZED on 12/04/2019 4:00PM by Rigas.Amanda
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HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 103 Subpoenas
SPONSOR(S): Civil Justice Subcommittee, Gottlieb and Fernandez-Barquin
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice Subcommittee 12 Y, 0 N, As Frost Luczynski
cs
2) Business & Professions Subcommittee Wright Anstead
3) Judiciary Committee
SUMMARY ANALYSIS
A subpoena is an order directed to a person requiring attendance at a particular time and place to give
testimony as a witness or bring certain documents, records, or other tangible evidence. When a witness is
subpoenaed in a criminal case, he or she must remain available for attendance until the case is resolved or he
or she is excused by the court. If a witness departs without the court's permission or intentionally fails to
produce the required tangible evidence, he or she may be held in contempt of court.
Contempt, which may be civil or criminal and direct or indirect, is a refusal to obey a court's legal order,
mandate or decree. A person may commit indirect criminal contempt when he or she intentionally obstructs or
interferes with the administration of justice by violating a court order, such as an investigative subpoena.
Section 92.605, F.S., authorizes an assistant state attorney (ASA) to issue an investigative subpoena to obtain
information relating to criminal activity which is occurring or has occurred. When investigating criminal activity
relating to electronic communications, such as homicide involving electronically stored surveillance footage,
internet child pornography, or vehicular homicide due to careless cell phone usage, an ASA may issue an
investigative subpoena to an out-of-state corporation (OOSC), and the following guidelines apply:
• An OOSC's registered agent must be properly served with a subpoena.
• An OOSC's response to the subpoena is due within 20 business days of receipt, unless a longer time
period is provided.
• If a court finds that failing to produce records within 20 business days will cause an adverse result, a
shorter time period may be provided.
• A court may reasonably extend the time period if an extension will not cause an adverse result.
• If an OOSC cannot produce the requested records within the time period provided, it must notify the
ASA within the 20-day time period and agree to produce the documents at the earliest possible time.
The law does not specifically provide a remedy for when an OOSC fails to timely comply with a subpoena, and
as such, contempt of court is the only available remedy.
CS/HB 103 amends s. 92.605, F.S., providing that service on an OOSC is proper when served:
• On a registered agent in this state;
• As authorized by the state where process is to be served; or
• At a location routinely used to accept service, if the corporation is doing business in Florida through the
internet.
The bill authorizes an applicant who sought a subpoena to petition a court to compel compliance through
indirect criminal contempt and a daily fine of between $100 and $1,000, for up to 60 days.
The bill does not appear to have a fiscal impact on state or local governments. The bill may have a fiscal
impact on Florida businesses and OOSC's that fail to comply with subpoenas. The bill may generate revenues
for the Clerks of the Court Trust Fund within the Justice Administrative Commission.
The bill provides an effective date of July 1, 2020.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0103b.BPS.DOCX
DATE: 12/3/2019
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Subpoenas in General
A subpoena is an order directed to a person requiring attendance at a particular time and place. A
subpoena ad testificandum requires attendance to testify as a witness, while a subpoena duces tecum
orders a witness to appear and bring certain documents, records, or other tangible evidence that may
be introduced as evidence in a case. 1 Subpoenas may be issued in a criminal investigation, 2 a criminal
prosecution during discovery, 3 or for trial 4 by a defendant, his or her counsel, 5 or the state attorney.
Generally, a subpoena must state the name of the court, title of action, and time and place the witness
is ordered to give testimony or produce other evidence. 6 When a witness is subpoenaed by either party
in a criminal case, he or she must remain available for attendance until the case is resolved or until he
or she is excused by the court. 7 If a witness departs without permission of the court or intentionally fails
to produce requested tangible evidence, he or she may be held in contempt of court. 8
Contempt of Court
Contempt is a refusal to obey a court's legal order, mandate or decree. 9 There are two main types of
contempt: civil and criminal. Civil contempt occurs when a person intentionally fails to do something
ordered by the court in a civil case. Civil contempt is intended to compel a party's compliance or
°
compensate a party for losses resulting from the contemptuous conduct. 1 Criminal contempt results
from conduct that tends to intentionally obstruct or interfere with the administration of justice, and its
purpose is to punish offensive conduct, vindicate the court's authority, and deter such conduct. 11 Both
main types of contempt may also be:
• Direct: when committed in the immediate presence of the court, such as an assault of a
testifying witness; or
• Indirect: when committed away from the presence of the court, such as disobeying a court
order.
A person commits indirect criminal contempt when he or she intentionally obstructs or interferes with
the administration of justice by violating a court order, such as an investigative subpoena. 12 While
authorized by statute, 13 criminal contempt is not specifically classified as a felony or misdemeanor, and
1 Black's Law Dictionary (11th ed. 2019).
2
Florida law authorizes certain entities to use subpoenas to conduct criminal investigations, including, but not limited to, s. 409.920,
F.S. (authorizing the Attorney General to subpoena witnesses or materials, including medical records, during an investigation for
Medicaid fraud); s. 415.107, F .S. (authorizing a criminal justice agency investigating a report related to abuse, neglect, or exploitation of
a vulnerable adult to subpoena related records); ands. 414.411, F.S. (authorizing the Department of Financial Services to subpoena
witnesses and records related to a public assistance fraud investigation).
3
Fla. R. Civ. P. 3.220(h) allows any party to conduct a deposition by oral examination of any person authorized by the rule, generally
including listed witnesses, co-defendants, or unlisted witnesses who have information relevant to the offense charged.
4
A subpoena for testimony before the court and subpoenas for production of tangible evidence before the court may generally be
issued by the clerk of the court or by any attorney of record in the case. Fla. R. Civ. P. 3.361 (a).
5 The United States Constitution guarantees a defendant in a criminal case the right to compulsory processes for obtaining witnesses in
his or her favor; U.S. Const. amend. 6.
6 Id.
7
S. 914.03, F.S.
a Id.
9 S. 38.23, F.S.; See also Black's Law Dictionary, (11th ed. 2019).
10
Elliott v. Bradshaw, 59 So. 3d 1182 (Fla. 4th DCA 2011); Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985).
11 Elliot, 59 So. 3d at 1184; Berlow v. Berlow, 21 So. 3d 81 (Fla. 3d DCA 2009); In re Steffens, 988 So. 2d 142 (Fla. 5th DCA 2008).
12 Elliot, 59 So. 3d at 1184; Sando v. State, 972 So. 2d 271 (Fla. 4th DCA 2008).
13
S. 38.22, F.S.
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is instead classified as a common law crime, 14 punishable by up to twelve months in county jail and a
fine up to $500. 15 16 Due process of law requires that a party accused of indirect contempt be advised of
the charge and provided an opportunity to defend himself or herself. 17
Investigative Subpoenas in Criminal Cases
Within the criminal justice system, law enforcement is typically responsible for investigating a crime and
an assistant state attorney prosecutes the offender. However, the State is often called upon to conduct
or assist in an investigation which may lead to the filing of criminal charges. Under these
circumstances, an ASA is authorized to issue an investigative subpoena. 18 Specifically, s. 27.04, F.S.,
allows an ASA to issue a subpoena for records 19 as part of any ongoing investigation. 20 An investigative
subpoena allows the State to obtain information necessary to determine whether criminal activity is
occurring or has occurred. When issuing an investigative subpoena, the State is not required to prove
relevancy or materiality of the records sought, 21 but may only gather information that may lead to
criminal charges. 22
Records Subpoenas to Florida Businesses and Out-Of-State Corporations
When investigating a crime relating the use of electronic communications, such as homicide involving
electronically stored surveillance footage, internet child pornography, or vehicular homicide due to
careless cell phone usage, ASAs frequently require out-of-state corporations (OOSCs) 23 to produce
electronic records under strict time constraints. If such records are not produced timely, electronic
records may be destroyed, witnesses' memories may fade, and public safety may be compromised.
Under these circumstances, s. 92.605, F.S., permits an ASA, or other qualified law enforcement
personnel, to issue an investigative subpoena to an OOSC. 24
If an ASA issues an investigative subpoena to an OOSC providing electronic communication services
or remote computing services to the public, and such records reveal a customer's identity, stored data,
or usage of such services, or the destination or recipients of communications sent to or from a
customer, the following requirements apply: 25
• An OOSC's registered agent must be properly served with a subpoena. 26
• An OOSC's response to the subpoena is due within 20 business days of receipt, unless a
longer time period is provided.
o If a court finds that failing to produce records within 20 business days will cause an
adverse result, 27 a shorter time period may be provided. 28
14 A common law crime is one which is not separately reclassified by statute as either a felony or a misdemeanor, See S. 775.01, F .S.
(2005).
15 S. 775.02, F.S.
16
County courts and circuit courts possess the same power to punish contempt. S. 900.04, F.S.
17 U.S. Const. amend. 5; Fla. R. Civ. P. 3.840.
18
State v. Investigation, 802 So. 2d 1141, 1144 (Fla. 2d DCA 2001).
19 See Imparato v. Spicola, 238 So. 2d 503 (Fla. 2d DCA 1970).
20 S. 16.56(3), F.S., provides the same authority to a statewide prosecutor.
21
State, 802 So. 2d 1141 at 1144.
22 Morgan v. State, 309 So. 2d 552 (Fla. 2d DCA 1975).
23 Out-of-state corporation means any corporation that is qualified to do business in this state under s. 607.1501.; S. 92.605(1)(e).
24
S. 92.605, F.S. permits service on an OOSC by any law enforcement officer seeking a court order or subpoena under s. 16.56, s.
27.04, s. 905.185, or s. 914.04 or who is issued a search warrant under s. 933.01, or anyone who is authorized to issue a subpoena
under the Florida Rules of Criminal Procedure.
25 S. 92.605(2), F.S.
26 Properly served means delivery by hand or in a manner reasonably allowing for proof of delivery if delivered by mail or facsimile. S.
92.605(1)(h), F.S.
27
An adverse result includes the potential: danger to the life or physical safety of an individual; risk of flight from prosecution;
destruction of or tampering with evidence; intimidation of potential witnesses; or serious jeopardy to an investigation or undue delay of a
trial. S. 92.605(1)(a), F.S.
28 S. 92.605(2)(c), F.S.
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DATE: 12/3/2019
o A court may also reasonably extend the time period provided if an extension will not
cause an adverse result.
• If an OOSC cannot produce the requested records within the time period provided, it must notify
the ASA within the 20-day time period and agree to produce the documents at the earliest
possible time.
While explicitly requiring compliance or notification of inability to comply within 20 days, the law does
not specifically provide a remedy for when an OOSC fails to comply with a subpoena issued under s.
92.605, F.S. As such, contempt of court is the only available remedy an ASA may seek.
Effect of Proposed Changes
CS/H8 103 amends s. 92.605, F.S., providing that service on an OOSC is proper when served:
• On a registered agent in this state;
• As authorized by the state where process is to be served; or
• At a location routinely used to accept service, if the corporation is doing business in Florida through
the internet.
When an OOSC fails to comply with a subpoena, the bill authorizes an applicant who sought a
subpoena to petition a court to compel compliance through indirect criminal contempt and a daily fine of
between $100 and $1,000, for up to 60 days.
The bill provides a concrete avenue for applicants to seek compliance with and enforcement of
subpoenas issued to businesses and corporations, which may increase compliance with subpoenas
issued under strict timelines and aid in preventing the destruction of essential evidence.
8. SECTION DIRECTORY:
Section 1: Amends s. 92.605, F.S., relating to production of certain records by Florida businesses and
out-of-state corporations.
Section 2: Provides an effective date of July 1, 2020.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
The bill may generate revenues for the Clerks of the Court Trust Fund within the Justice
Administrative Commission. 29
2. Expenditures:
None.
8. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
29 All revenues received by the clerk from court-related fees, fines, costs, and service charges are considered state funds
and are remitted monthly to the Department of Revenue for deposit into the Clerks of the Court Trust Fund within the
Justice Administrative Commission. S. 142.01(2), F.S.
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DATE: 12/3/2019
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may have a fiscal impact on Florida businesses and OOSC's that fail to comply with subpoenas
issued under s. 92.605, F.S.
D. FISCAL COMMENTS:
None.
Ill. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
Not applicable.
C. DRAFTING ISSUES OR OTHER COMMENTS:
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On November 14, 2019, the Civil Justice Subcommittee adopted an amendment and reported the bill
favorably as a committee substitute. The amendment:
• Provides that service on an OOSC is proper when served:
o On a registered agent in this state;
o As authorized by the state where process is to be served; or
o At a location routinely used to accept service, if the corporation is doing business in Florida
through the internet.
• Authorizes an applicant who sought a subpoena to petition a court to compel compliance through
indirect criminal contempt and a daily fine of between $100 and $1,000, for up to 60 days.
This analysis is drafted to the committee substitute as passed by the Civil Justice Subcommittee.
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DATE: 12/3/2019
FLORIDA H O U S E O F REPRESENTATIVES
CS/HB 103 2020
1 A bill to be entitled
2 An act relating to subpoenas; amending s. 92.605,
3 F.S.; revising the definition of the term "properly
4 served"; authorizing an applicant to petition a court
5 to compel compliance with a subpoena; authorizing a
6 court to address noncompliance as indirect criminal
7 contempt and impose a daily fine; providing an
8 effective date.
9
10 Be It Enacted by the Legislature of the State of Florida:
11
12 Section 1. Paragraph (h) of subsection (1) of section
13 92.605, Florida Statutes, is amended, and subsection (10) is
14 added to that section, to read:
15 92.605 Production of certain records by Florida businesses
16 and out-of-state corporations.-
17 (1) For the purposes of this section, the term:
18 (h) "Properly served" means delivery by hand or in a
19 manner reasonably allowing for proof of delivery if delivered by
20 United States mail, overnight delivery service, or facsimile to
21 a person or entity properly registered to do business in any
22 state. In order for an out-of-state corporation to be properly
23 served, the service described in this paragraph must be effected
24 on the corporation's registered agent in this state or as
25 authorized under the laws of the state where process is to be
Page 1 of 2
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hb0103-01-c1
FLORIDA H O U S E O F REPRESENTATIVES
CS/HB 103 2020
26 served. Service on an out-of-state corporation doing business in
27 this state through the Internet may also be made at any location
28 where the corporation routinely accepts service.
29 (10) If a Florida business or an out-of-state corporation
30 refuses to comply with a properly served subpoena or does not
31 comply with the requirements of subsection (2) or subsection
32 (3), the applicant who sought the subpoena may petition a court
33 of competent jurisdiction to compel compliance. The court may
34 address the matter as indirect criminal contempt and may punish
35 a business or corporation by a fine of not less than $100 per
36 day and not more than $1,000 per day for a maximum of 60 days.
37 Section 2. This act shall take effect July 1, 2020.
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HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL#: HB 133 Towing and Immobilizing Vehicles and Vessels
SPONSOR(S): McClain
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Local, Federal & Veterans Affairs Subcommittee 9Y, 5 N Darden Miller
2) Business & Professions Subcommittee Thompso
3) State Affairs Committee
SUMMARY ANALYSIS
County and municipal governments may contract with wrecker operators to tow or remove wrecked, disabled,
or abandoned vehicles from streets, highways, and accident sites within their jurisdiction. Counties and
municipalities may establish a wrecker operator system to apportion towing services across multiple wrecker
operators. Wrecker operators who participate in the wrecker operator system are known as authorized wrecker
operators. Counties and municipalities are authorized to establish by ordinance or rule maximum rates for the
towing and storage of vehicles. Some municipalities impose an administrative fee on vehicles towed by an
authorized wrecker operator if the vehicle is seized or towed in connection with certain misdemeanors or
felonies.
Vehicles or vessels parked without permission on private property may be towed at the direction of the owner
or lessee of the property. The towing or removal must be conducted by a person regularly engaged in the
business of towing vehicles or vessels and is subject to strict compliance with certain conditions and
restrictions placed on the towing company. If the property is not a single-family residence, towing may only
occur if notice is given via signage that must meet certain conditions.
The bill requires counties and municipalities to establish maximum rates for the towing and immobilization of
vessels, and prohibits a county or municipality from enacting a rule or ordinance that imposes a fee or charge
on authorized wrecker operators. However, the bill provides that an authorized wrecker operator may impose
and collect an administrative fee, which may only be remitted to the county or municipality after it has been
collected. The bill prohibits counties and municipalities from adopting or enforcing ordinances or rules that
impose fees on the registered owner or lienholder of a vehicle or vessel removed and impounded by an
authorized wrecker operator. The bill provides that a wrecker operator who recovers, removes, or stores a
vehicle or vessel must have a lien on the vehicle or vessel that includes the value of the reasonable
administrative fee or charge imposed by a county or municipality.
The bill exempts certain counties with towing or immobilization licensing, regulatory, or enforcement programs
as of January 1, 2020, from the prohibition on imposing a fee or charge on an authorized wrecker operator or
on a towing business.
The bill prohibits a municipality or county from enacting an ordinance or rule requiring an authorized wrecker
operator or towing business to accept credit cards as a form of payment. The bill expressly preempts the
regulation of attorney fees in connection with the towing of vehicles or vessels from private property to the
state and voids any municipal or county ordinance on the subject. In actions for the improper towing of a
vehicle or vessel, the court may award damages, attorney fees, and costs to the prevailing party.
The bill may have an indeterminate fiscal impact on local governments.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0133b.BPS.DOCX
DATE: 12/4/2019
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
County and Municipal Wrecker Operator Systems
A county or municipal government may contract with one or more wrecker operators to tow or remove
wrecked, disabled, or abandoned vehicles from streets, highways, and accident sites. 1 After the
establishment of such contract(s}, the county or municipality must create a "wrecker operator system"
to apportion towing assignments between the contracted wrecker services. This apportionment may
occur through the creation of geographic zones, a rotation schedule, or a combination of those
methods. 2 Any wrecker operator that is included in the wrecker operator system is an "authorized
wrecker operator'' in the jurisdiction, while any wrecker operation not included is an "unauthorized
wrecker operator. "3
Unauthorized wrecker operators are not permitted to initiate contact with the owner or operator of a
wrecked or disabled vehicle. 4 If the owner or operator initiates contact, the unauthorized wrecker
operator must disclose in writing, before the vehicle is connected to the towing apparatus:
• His or her full name;
• Driver license number;
• That he or she is not a member of the wrecker operator system;
• That the vehicle is not being towed for the owner's or operator's insurance company or
lien holder;
• Whether he or she has an insurance policy providing $300,000 in liability coverage and $50,000
in on-hook cargo coverage; and
• The maximum charges for towing and storage. 5
The unauthorized wrecker operator must disclose this information to the owner or operator in the
presence of a law enforcement officer if an officer is present at the scene of the accident. 6
It is a second degree misdemeanor for an unauthorized wrecker operator to initiate contact or to fail to
provide required information after contact has been initiated. 7 An unauthorized wrecker operator
misrepresenting his or her status as an authorized wrecker operator commits a first degree
misdemeanor. 8 In either instance, the unauthorized wrecker operator's wrecker, tow truck, or other
motor vehicle used during the offense may be immediately removed and impounded. 9
Unauthorized wrecker operators also are prohibited from monitoring police radios to determine the
location of wrecked or disabled vehicles. 10
1
S. 323 .002(1 )(c), F .S. The definition of "vehicle" does not include a vessel or trailer intended for the transport on land ofa vessel.
Sees. 320.01, F.S. (defining "motor vehicle" for the purpose of issuance of motor vehicle licenses and separately defining a "marine
boat trailer dealer" as a person engaged in "business of buying ... trailers specifically designed to be drawn by another vehicle and
used for the transportation on land of vessels.")
z Id.
3
S. 323.002(l)(a)-(b), F.S.
4
S. 323.002(2)(b), F.S.
5
S. 323.002(2)(c), F.S.
6
Id.
7
Id
8
S. 323.002(2)(d), F.S.
9
S. 323.002(2)(c) and (d), F.S.
10
S. 323.002(2)(a), F.S.
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Counties must establish maximum rates for the towing of vehicles removed from private property, as
well as the towing and storage of vehicles removed from the scene of an accident or from where the
vehicle is towed at the request of a law enforcement officer. Municipalities are also authorized to adopt
maximum rate ordinances. If a municipality enacts an ordinance to establish towing fees, the county
ordinance will not apply within the municipality. 11 A county or municipality may not establish rates,
including a maximum rate, for the towing of vessels. 12
Vehicle Holds, Wrecker Operator Storage Facilities, and Liens
An investigating agency may place a hold on a motor vehicle stored within a wrecker operator's storage
facility for up to five business days. 13 A hold may be applied when the officer has probable cause to
believe the vehicle:
• Should be seized under the Florida Contraband Forfeiture Act or Ch. 379, F.S.;
• Was used as the means of committing a crime;
• Is evidence that tends to show a crime has been committed; or
• Was involved in a traffic accident resulting in death or personal injury. 14
An officer may also apply a hold when the vehicle is impounded pursuant to s. 316.193, F.S. (relating to
driving under the influence) ors. 322.34, F.S. (relating to driving with a suspended or revoked license)
or when the officer is complying with a court order. 15 The hold must be in writing and include the name
and agency of the law enforcement officer placing the hold, the date and time the hold is placed on the
vehicle, a general description of the vehicle, the specific reason for the hold, the condition of the
vehicle, the location where the vehicle is being held, and the name and contact information for the
wrecker operator and storage facility. 16
The investigating agency must inform the wrecker operator within the five-day holding period if the
agency intends to hold the vehicle for a longer period of time. 17 The vehicle owner is liable for towing
and storage charges for the first five days. If the vehicle will be held beyond five days, the investigating
agency may choose to have the vehicle stored at a designated impound lot or to pay for storage at the
wrecker operator's storage facility. 18
A wrecker operator or other person engaged in the business of transporting vehicles or vessels who
recovers, removes, or stores a vehicle or vessel, possesses a lien on the vehicle or vessel for a
reasonable towing fee and storage fee if the vehicle or vessel is removed upon instructions from:
• The owner of the vehicle or vessel;
• The owner, lessor, or authorized person acting on behalf of the owner/lessor of property on
which the vehicle or vessel is wrongly parked (as long as the removal is performed pursuant to
s. 715.07, F.S.);
• The landlord or authorized person acting on behalf of a landlord, when the vehicle or vessel
remains on the property after the expiration of tenancy and the removal is performed pursuant
to enforcing a lien pursuant to s. 83.806, F.S., or for the removal of property left after a lease is
vacated pursuant to s. 715.104, F.S.; or
• Any law enforcement agency. 19
11
Ss. 125.0103(1)(c) and 166.043(l)(c), F.S.
12
Compares. 125.0103(l)(c), F.S. (requiring a county to establish maximum rates for towing of vehicles) withs. 715.07, F.S. (towing
of vehicles or vessels parked on private property).
13
S. 323.001(1), F.S.
14
S. 323.001(4)(a)-(e), F.S.
15
S. 323.001(4)(t)-(g), F.S.
16
S. 323.001(5), F.S.
17
S. 323.001(2), F.S.
18
S. 323.001(2)(a)-(b), F.S.
19
S. 713.78(2), F.S.
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Authority for Local Governments to Charge Fees
Counties and municipalities do not have authority to levy taxes, other than ad valorem taxes, except as
provided by general law. 20 However, local governments possess the authority to impose user fees or
assessments by local ordinance as such authority is within the constitutional and statutory home rule
powers of local governments. 21 The key distinction between a tax and a fee is that fees are voluntary
and benefit particular individuals in a manner not shared by others in the public. 22 On the other hand, a
tax is a "forced charge or imposition, operating whether we like it or not and in no sense depends on
the will or contract of the one on whom it is imposed." 23 Usually a fee is charged for the use of a service
and is tied directly to the cost of maintaining the service. Money collected from a fee is not applied to
uses other than to provide the service for which the fee is applied. An administrative fee for towing and
storage services may be permissible to the extent the fee provides a specific benefit to vehicle
owners. 24
Fees Related to Towing and Storage
Some municipalities charge administrative fees when a vehicle is towed in connection with certain
misdemeanors or felonies. For example, the City of Sarasota seizes the vehicle of those arrested for
crimes related to drugs or prostitution. 25 The registered owner of the vehicle is given two options:
• The registered owner may request a hearing where the city must show by a preponderance of
the evidence that the vehicle was used to facilitate the commission of an act of prostitution or
any violation of ch. 893, F.S., the Florida Comprehensive Drug Abuse Prevention and Control
Act. The owner may post a bond equal to the civil penalty ($500.00), hearing costs ($50.00),
and towing and storage fees ($125.00 plus $25.00 per day) to receive the vehicle back pending
the outcome of the hearing, or the owner may leave the vehicle in impound, incurring additional
fees.
• The registered owner may waive the right to a hearing and pay the civil penalty ($500.00).
If the registered owner of the vehicle is unable to pay the administrative penalty within 35 days, the city
disposes of the vehicle. The City of Bradenton uses the same process and rate structure. 26
Other municipalities have enacted ordinances charging an administrative fee for any vehicle
impoundment associated with an arrest. For example, the City of Sweetwater imposes an
"impoundment administrative fee" on all vehicles seized incident to an arrest. The fee is $500 if the
impoundment stems from a felony arrest and $250 if the impoundment stems from a misdemeanor. 27
The City of Winter Springs imposes an administrative fee for impoundment arising from 12 offenses
enumerated in the authorizing ordinance, ranging from prostitution to dumping litter weighing more than
15 pounds. 28 The registered owner may request a hearing, either accruing additional storage fees
pending the hearing or posting a bond equal to the amount of the administrative fee ($550.00). If the
registered owner waives the right to hearing, the administrative fee is reduced to $250.00. These fees
are payable to the city but are collected by towing companies. 29
20
Art. VII, s. l(a), Fla. Const.
21
City of Boca Raton v. State, 595 So. 2d 25, 30 (Fla. 1992).
22
City of Miami v. Quik Cash Jewelry & Pawn, Inc., 811 So.2d 756, 758 (Fla. 3rd DCA 2002).
23
Id. at 758-59.
24
See Jasinski v. City of Miami, 269 F. Supp. 2d 1341, 1348 (S.D. Fla. 2003).
25 Sarasota Police Department, Vehicle Seizure Program, https://www.sarasotapd.org/about-us/vehicle-seizure-program (last visited
Oct. 14, 2019).
26
Bradenton, Fla. Code of Ordinances, ch. 54, art. IV (2019).
27
Sweetwater, Fla. Code of Ordinances, ch. 42-1, s. 42.l(c) (2019).
28
Winter Springs, Fla. Code of Ordinances ch. 12, s. 12-100 (2019).
29
Winter Springs, Fla. Notice of Right to Hearing Form (on file with the Local, Federal & Veterans Affairs Subcommittee).
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By contract, some municipalities require wrecker services to pay a monthly fee for serving as
authorized wrecker operators. For example, the contract between the City of Sarasota and a wrecker
operator requires the operator to pay the city $10, 151 per month for "the opportunity to provide"
wrecker services, as well as $500 for each impounded vehicle sold by the wrecker service. 30
Towing from Private Property
A vehicle or vessel may be towed at the direction of an owner or lessee of real property, or their
designee, if the vehicle or vessel is parked on the property without permission. 31 A person regularly
engaged in the business of towing vehicles or vessels must conduct the tow. The towing or removal of
any vehicle or vessel from private property without the consent of the registered owner or other legally
authorized person in control of that vehicle or vessel is subject to strict compliance with certain
conditions and restrictions. These conditions and restrictions include: 32
• Any towed or removed vehicle or vessel must be stored at a site within a specified distance of
the point of removal. 33
• The towing company must notify local law enforcement within 30 minutes of completing the tow
of the storage site; the time the vehicle or vessel was towed; and the make, model, color, and
license plate number of the vehicle or description and registration number of the vessel. The
towing truck operation is required to record the name of the law enforcement officer who
received the information in the trip record.
• The owner of a vehicle or vessel must be allowed to redeem the vehicle or vessel from the
towing company if the owner seeks return before the tow has occurred. The towing company
may charge a reasonable service fee of up to one-half of the posted towing rate for the return of
the vehicle or vessel and may tow the vehicle or vessel if the owner is unable to pay the fee
after a reasonable opportunity.
• A towing company may not pay or accept money in exchange for the privilege of towing or
removing vehicles or vessels from a particular location.
• If the towing company requires the owner of a vehicle to pay the costs of towing and storage
prior to redemption, the towing company must file and keep on record its rate schedule with the
local law enforcement agency and post the rate schedule at the storage site.
• Trucks and wreckers used by the towing company must have the name, address, and
telephone number of the company printed on both sides of the vehicle in contrasting letters. The
name of the towing company must be in 3-inch or taller permanently affixed letters, while the
address and telephone number must be in 1-inch or taller permanently affixed letters.
• The towing company must exercise reasonable care when entering a vehicle or vessel for the
purpose of removing it. The towing company is liable for any damage to the vehicle caused by
failure to exercise reasonable care.
• The vehicle or vessel must be released to its owner within one hour after request. The owner
maintains a right to inspect the vehicle or vessel and the towing company operation may not
require a release or waiver of damages to be signed as a condition of returning the vehicle. The
towing company operator must issue a detailed, single receipt to the owner of the vehicle or
vessel.
30
Agreement for Wrecker Towing and Storage Services, City of Sarasota and J&G WFR, Inc. dba Direct Towing (on file with the
Local, Federal & Veterans Affairs Subcommittee).
31
S. 715.07(2), F.S.
32
S. 715.07(2)(a), F.S.
33
S. 715.07(2)(a)l.a., F.S. The vehicle or vessel must be stored within a 10-mile radius of the removal point in a county with a
population ofat least 500,000 and within a 15-mile radius of the removal point in a county with a population of fewer than 500,000. If
no towing business operated within the given area, these radiuses are extended to 20 miles (for a county with a population ofat least
500,000) and 30 miles (for a county with a population of fewer than 500,000). The site must be open from 8 am to 6 pm on the towing
business is in operation and must post a telephone number where the operator of the site can be reached when the site is closed. The
operator must return to the site within one hour.
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Additionally, a vehicle or vessel may not be towed without consent of its owner, except from property
appurtenant to a single-family residence, unless a notice is posted which states the area in which that
vehicle or vessel is parked is reserved or otherwise unavailable for unauthorized vehicles or that the
vehicle or vessel is subject to being removed at the owner's or operator's expense and the notice
meets the following requirements: 34
• The notice is placed prominently at each driveway access or curb cut, within five feet from the
public right-of-way line. If the property has no curbs or access barriers, signs must be posted at
least once every 25 feet of lot frontage.
• The notice must clearly indicate, in not less than 2-inch high, light-reflective letters on a
contrasting background, that unauthorized vehicles will be towed away at the owner's expense
and contain the words "tow-away zone" in letters not less than 4 inches high.
• The notice must provide the name and telephone number of the towing company.
• The sign containing the notices must be permanently installed in such a way that the words
"tow-away zone" are between 3 and 6 feet above ground level and the sign must have been
continuously maintained on the property for not less than 24 hours prior to the towing of any
vehicle or vessel.
• Local governments may also require permitting and inspection of signage before any towing is
authorized.
• A business with 20 or fewer parking spaces may satisfy the requirement by prominently
displaying a sign stating "Reserved Parking for Customers Only Unauthorized Vehicles or
Vessels Will be Towed Away At the Owner's Expense" in not less than 4-inch high, light-
reflective letters on a contrasting background.
• A property owner towing or removing vessels from real property must post notice, consistent
with the requirements in the statute which apply to vehicles, 35 that unauthorized vehicles or
vessels will be towed away at the owner's expense.
A vehicle or vessel may be towed even in the absence of a tow-away zone sign if the vehicle or vessel
is parked in such a way that it restricts the normal operation of business or restricts access to a private
driveway and the tow is requested by the business owner or lessee. 36
A county or municipality may adopt additional standards, including regulation of the rates charged when
a vehicle or vessel is towed from private property. 37
If a person causes a vehicle or vessel to be removed improperly, that person is liable to the owner or
lessee for the cost of removal, transportation, and storage; any damages resulting from the removal,
transportation, or storage of the vehicle or vessel; attorney fees; and court costs. 38
Violations of these provisions may constitute a first-degree misdemeanor39 or a third-degree felony. 40
Effect of Proposed Changes
The bill authorizes a county or municipality to regulate the rates for the towing or immobilization of
vessels. A county or municipality must establish a maximum rate that may be charged for the towing or
immobilization of a vessel.
The bill prohibits a county or municipality from enacting a rule or ordinance that imposes a fee or
charge on authorized wrecker operators or a towing business. The bill defines the term "towing
34
S. 715.07(2)(a)5, F.S.
35
These requirements are contained ins. 715.07(2)(a)5.a.-f., F.S.
36
S. 715.07(2)(a)5, F.S.
37
S. 715.07(2)(b), F.S.
38
S. 715.07(4), F.S.
39
For subparagraphs (2)(a)2. and (2)(a)6. S. 715.07(5)(a), F.S.
40
For subparagraphs (2)(a)l., (2)(a)3., (2)(a)4., (2)(a)7., and (2)(a)9. S. 715.07(5)(b), F.S.
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business" as a business providing towing services for monetary gains. The prohibition would not impact
the ability of the county or municipality to levy a business tax or impose a reasonable administrative fee
or charge by ordinance on the legal owner of a vehicle or vessel to cover the cost of enforcement,
including parking enforcement, by the county or municipality when the vehicle or vessel is towed from
public property. The administrative fee may not exceed 25 percent of the maximum towing rate.
The bill authorizes an authorized wrecker operator or towing business to impose and collect the
administrative fee and provides that the authorized wrecker operator or towing business is not required
to remit the fee to the county or municipality until it is actually collected. The bill requires the
administrative fee to be included as part of the lien on the vehicle or vessel held by the towing operator.
The prohibition on county ordinances or rules that impose a fee or tax on authorized wrecker operators
or on towing businesses does not apply to towing or immobilization licensing, regulatory, or
enforcement programs in effect on January 1, 2020 in charter counties where:
• 90 percent of the county's population lives in incorporated municipalities; 41
• The county contains at least 38 incorporated municipalities within its territorial boundaries as of
January 1, 2020; 42 or
• The county is a county as defined ins. 125.011(1), F.S.
These counties may continue to operate their existing towing or immobilization licensing, regulatory, or
enforcement programs and are authorized to levy an administrative fee for enforcement costs. A
county as defined ins. 125.011(1), F.S. is prohibited from imposing any new business tax, fee, or
charge that was not in effect on January 1, 2020 on a towing business or authorized wrecker operator.
The bill prohibits a county or municipality from adopting or enforcing an ordinance that imposes any
charge, cost, expense, fine, fee, or penalty on the registered owner of a vehicle or vessel, on the
lienholder of a vehicle or vessel, or on an authorized wrecker operator when the vehicle or vessel is
removed and impounded by an authorized wrecker operator. This prohibition does not apply to a
reasonable administrative fee or charge, limited to 25 percent of the maximum towing rate, to cover the
cost of enforcement and does not apply to the continuing operation of towing or immobilization
licensing, regulatory, or enforcement programs in grandfathered charter counties.
The bill prohibits a municipality or county from enacting an ordinance or rule requiring an authorized
wrecker operator or towing business to accept credit cards as a form of payment. This prohibition does
not apply to an ordinance or rule adopted before January 1, 2020. The bill requires an authorized
wrecker operator or towing business that does not accept credit cards as a form of payment to maintain
an operable automatic teller machine for use by the public at its place of business. The bill prohibits a
county or municipality from authorizing attorney fees in connection with the towing of vehicles or
vessels from private property.
The bill authorizes the towing or removal of a vehicle or vessel from private property without the
consent of the registered owner as long as the towing company is in "substantial" compliance with the
conditions and restrictions established ins. 715.07, F.S., rather than in "strict" compliance.
The bill removes the requirement that the tow-away zone notice must be placed within five feet from the
public right-of-way line. Instead, the notice must be placed prominently at each driveway access or curb
cut allowing vehicular access to the property. The bill also removes the requirement that a "tow-away
zone" sign must be permanently installed at between three and six feet above ground level.
41
As of April 1, 2018, more than 90 percent of the populations of Broward County and Duval County live in incorporated areas. EDR,
Florida Population Estimates for Counties and Municipalities, http://edr.state.fl.us/Content/population-demographics/data/index-
floridaproducts.cfm (last visited Oct. 14, 2019). As of Oct. 1, 2019, Broward County operates a towing or immobilization licensing,
regulatory, or enforcement program, while Duval County does not.
42
As of Oct. 1, 2019, only Palm Beach County has more than 38 municipalities. See id. (Palm Beach County has 39 municipalities).
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The bill revises several provisions currently applicable to a person in control of a vehicle or vessel,
making these provisions applicable also to those in custody of the vehicle.
The bill removes liability for attorney fees and court costs against any person causing a vehicle or
vessel to be removed improperly. If an action is filed, the court may award damages, attorney fees, and
court costs to the prevailing party. The bill expressly preempts to the state the regulation of attorney
fees in connection with the towing of vehicles or vessels from private property and voids any municipal
or county ordinance on the subject.
8. SECTION DIRECTORY:
Section 1: Amends s. 125.0103, F.S., requiring counties to establish maximum rates for the towing
and immobilization both of vehicles and vessels.
Section 2: Creates s. 125.01047, F.S., prohibiting counties from enacting ordinances imposing
specific fees and charges on authorized wrecker operators.
Section 3: Amends s. 166.043, F.S., requiring municipalities to establish maximum rates for the
towing and immobilization both of vehicles and vessels.
Section 4: Creates s. 166.04465, F.S., prohibiting municipalities from enacting ordinances imposing
specific fees and charges on authorized wrecker operators.
Section 5: Amends s. 323.002, F.S., prohibiting counties and municipalities from adopting or
maintaining ordinances or rules imposing fees and charges on the registered owner or
lienholder of a vehicle removed and impounded pursuant to ch. 323, F.S.
Section 6: Amends s. 713.78, F.S., providing that a wrecker operation has a lien for a reasonable
administrative fee or charge imposed by a county or municipality.
Section 7: Amends s. 715.07, F.S., concerning requirements for towing a vehicle from private
property.
Section 8: Provides that the bill takes effect July 1, 2019.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
8. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
The bill will have an indeterminate impact on local government revenue. The bill prohibits counties
and municipalities from charging certain fees to authorized wrecker operators and towing
companies that are currently charged by some jurisdictions, while authorizing the collection of
administrative fees for the cost of enforcement.
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2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill will reduce expenses for towing companies that are located in counties or municipalities
currently charging a fee.
D. FISCAL COMMENTS:
None.
Ill. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditure of funds; reduce the authority that counties or municipalities have to
raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
The Florida Constitution prohibits the passage of any law that would impair the obligation of
contracts. 43 The bill does not appear to implicate this provision, as the bill does not address the
enforcement of current contracts. The retroactive application of a statutory provision generally only
occurs upon an express statement of intent by the Legislature and is limited to the extent retroactive
application would impair a vested right, create a new obligation, or impose a new penalty. 44
8. RULE-MAKING AUTHORITY:
The bill does not provide rulemaking authority or require executive branch rulemaking.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
43
Art. I, s. I 0, Fla. Const.
44
Menendez v. Progressive Exp. Ins. Co, Inc., 35 So. 3d 873, 877 (Fla. 2010).
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FLORIDA H O U S E O F REPRESENTATIVES
HB 133 2020
1 A bill to be entitled
2 An act relating to towing and immobilizing vehicles
3 and vessels; amending ss. 125.0103 and 166.043, F.S.;
4 authorizing local governments to enact rates to tow or
5 immobilize vessels on private property and to remove
6 and store vessels under specified circumstances;
7 creating ss. 125.01047 and 166.04465, F.S.;
8 prohibiting counties or municipalities from enacting
9 certain ordinances or rules that impose fees or
10 charges on authorized wrecker operators or towing
11 businesses; defining the term "towing business";
12 providing exceptions; amending s. 323.002, F.S.;
13 prohibiting counties or municipalities from adopting
14 or maintaining in effect certain ordinances or rules
15 that impose charges, costs, expenses, fines, fees, or
16 penalties on registered owners, other legally
17 authorized persons in control, or lienholders of
18 vehicles or vessels under certain conditions;
19 providing an exception; prohibiting counties or
20 municipalities from enacting certain ordinances or
21 rules that require authorized wrecker operators to
22 accept a specified form of payment; providing
23 exceptions; providing applicability; amending s.
24 713.78, F.S.; authorizing certain persons to place
25 liens on vehicles or vessels to recover specified fees
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HB 133 2020
26 or charges; amending s. 715.07, F.S.; removing a
27 requirement regarding notices and signs concerning the
28 towing or removal of vehicles or vessels; prohibiting
29 counties or municipalities from enacting certain
30 ordinances or rules that require towing businesses to
31 accept a specified form of payment; prohibiting
32 counties or municipalities from authorizing attorney
33 fees in connection with certain towing activities;
34 providing exceptions; providing applicability;
35 preempting to the state the regulation of attorney
36 fees in connection with certain towing activities;
37 authorizing a court to award damages, attorney fees,
38 and court costs in certain cases; providing an
39 effective date.
40
41 Be It Enacted by the Legislature of the State of Florida:
42
43 Section 1. Paragraphs (b) and (c) of subsection (1) of
44 section 125.0103, Florida Statutes, are amended to read:
45 125.0103 Ordinances and rules imposing price controls;
46 findings required; procedures.-
47 ( 1)
48 (b) The provisions of This section does shall not prevent
49 the enactment by local governments of public service rates
50 otherwise authorized by law, including water, sewer, solid
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HB 133 2020
51 waste, public transportation, taxicab, or port rates, rates for
52 towing of vehicles or vessels from or immobilization of vehicles
53 or vessels on private property, or rates for removal and storage
54 of wrecked or disabled vehicles or vessels from an accident
55 scene or the removal and storage of vehicles or vessels in the
56 event the owner or operator is incapacitated, unavailable,
57 leaves the procurement of wrecker service to the law enforcement
58 officer at the scene, or otherwise does not consent to the
59 removal of the vehicle or vessel.
60 (c) Counties must establish maximum rates which may be
61 charged on the towing of vehicles or vessels from or
62 immobilization of vehicles or vessels on private property,
63 removal and storage of wrecked or disabled vehicles or vessels
64 from an accident scene or for the removal and storage of
65 vehicles or vessels, in the event the owner or operator is
66 incapacitated, unavailable, leaves the procurement of wrecker
67 service to the law enforcement officer at the scene, or
68 otherwise does not consent to the removal of the vehicle or
69 vessel. However, if a municipality chooses to enact an ordinance
70 establishing the maximum r a t e s ~ for the towing or
71 immobilization of vehicles or vessels as described in paragraph
72 (b), the county's ordinance shall not apply within such
73 municipality.
74 Section 2. Section 125.01047, Florida Statutes, is created
75 to read:
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76 125.01047 Rules and ordinances relating to towing
77 services.-
78 (1) A county may not enact an ordinance or rule that would
79 impose a fee or charge on an authorized wrecker operator, as
80 defined ins. 323.002(1), or on a towing business for towing,
81 impounding, or storing a vehicle or vessel. As used in this
82 section, the term "towing business" means a business that
83 provides towing services for monetary gain.
84 (2) The prohibition set forth in subsection (1) does not
85 affect a county's authority to:
86 (a) Levy a reasonable business tax under s. 205.0315, s.
87 205.033, ors. 205.0535.
88 (b) Impose and collect a reasonable administrative fee or
89 charge on the registered owner or other legally authorized
90 person in control of a vehicle or vessel, or the lienholder of a
91 vehicle or vessel, not to exceed 25 percent of the maximum
92 towing rate, to cover the cost of enforcement, including parking
93 enforcement, by the county when the vehicle or vessel is towed
94 from public property. An authorized wrecker operator or towing
95 business may impose and collect the administrative fee or charge
96 on behalf of the county and shall remit such fee or charge to
97 the county only after it is collected.
98 ( 3) ( a) This section does not apply to a towing or
99 immobilization licensing, regulatory, or enforcement program of
100 a charter county in which at least 90 percent of the population
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101 resides in incorporated municipalities, or to a charter county
102 with at least 38 incorporated municipalities within its
103 territorial boundaries as of January 1, 2020. This section does
104 not affect a charter county's authority to:
105 1. Impose and collect towing operating license fees,
106 license renewal fees, license extension fees, expedite fees,
107 storage site inspection or reinspection fees, criminal
108 background check fees, and tow truck decal fees, including decal
109 renewal fees, expedite fees, and decal replacement fees.
110 2. Impose and collect immobilization operating license
111 fees, license extension fees, license renewal fees, expedite
112 fees, and criminal background check fees.
113 3. Set maximum rates for the towing or immobilization of
114 vehicles or vessels on private property, including rates based
115 on different classes of towing vehicles, research fees,
116 administrative fees, storage fees, and labor fees; rates for
117 towing services performed or directed by governmental entities;
118 road service rates; winch recovery rates; voluntary expediting
119 fees for vehicle or vessel ownership verification; and to
120 establish conditions in connection with the applicability or
121 payment of maximum rates set for towing or immobilization of
122 vehicles or vessels.
123 4. Impose and collect such other taxes, fees, or charges
124 otherwise authorized by general law, special law, or county
125 ordinance, resolution, or regulation.
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126 (b} A charter county may impose and collect an
127 administrative fee or charge as provided in paragraph (2) (b) but
128 may not impose such fee or charge on a towing business or an
129 authorized wrecker operator. If the charter county imposes such
130 administrative fee or charge, the charter county may authorize a
131 towing business or authorized wrecker operator to impose and
132 collect such fee or charge on behalf of the county, and the
133 towing business or authorized wrecker operator shall remit such
134 fee or charge to the charter county only after it is collected.
135 ( 4) (a) Subsection ( 1) does not apply to a charter county
136 that had a towing licensing, regulatory, or enforcement program
137 in effect on January 1, 2020. However, such charter county may
138 not impose any new business tax, fee, or charge that was not in
139 effect as of January 1, 2020, on a towing business or an
140 authorized wrecker operator.
141 (b} A charter county may impose and collect an
142 administrative fee or charge as provided in paragraph (2) (b);
143 however, it may not impose that fee or charge upon a towing
144 business or an authorized wrecker operator. If such charter
145 county imposes such administrative fee or charge, such fee or
146 charge must be imposed on the registered owner or other legally
147 authorized person in control of a vehicle or vessel, or the
148 lienholder of a vehicle or vessel. The fee or charge may not
149 exceed 25 percent of the maximum towing rate to cover the cost
150 of enforcement, including parking enforcement, by the charter
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151 county when the vehicle or vessel is towed from public property.
152 The charter county may authorize an authorized wrecker operator
153 or towing business to impose and collect the administrative fee
154 or charge on behalf of the charter county, and the authorized
155 wrecker operator or towing business shall remit such fee or
156 charge to the charter county only after it is collected.
157 (c) For purposes of this subsection, the term "charter
158 county" means a county as defined in s. 125. 011 ( 1) .
159 Section 3. Paragraphs (b) and (c) of subsection (1) of
160 section 166.043, Florida Statutes, arc amended to read:
161 166.043 Ordinances and rules imposing price controls;
162 findings required; proccdurcs.-
163 ( 1)
164 (b) The provisions of This section docs shall not prevent
165 the enactment by local governments of public service rates
166 otherwise authorized by law, including water, sewer, solid
167 waste, public transportation, taxicab, or port rates, rates for
168 towing of vehicles or vessels from or immobilization of vehicles
169 or vessels on private property, or rates for removal and storage
170 of wrecked or disabled vehicles or vessels from an accident
171 scene or the removal and storage of vehicles or vessels in the
172 event the owner or operator is incapacitated, unavailable,
173 leaves the procurement of wrecker service to the law enforcement
174 officer at the scene, or otherwise docs not consent to the
175 removal of the vehicle or vessel.
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176 (c} Counties must establish maximum rates which may be
177 charged on the towing of vehicles or vessels from or
178 immobilization of vehicles or vessels on private property,
179 removal and storage of wrecked or disabled vehicles or vessels
180 from an accident scene or for the removal and storage of
181 vehicles or vessels, in the event the owner or operator is
182 incapacitated, unavailable, leaves the procurement of wrecker
183 service to the law enforcement officer at the scene, or
184 otherwise does not consent to the removal of the vehicle or
185 vessel. However, if a municipality chooses to enact an ordinance
186 establishing the maximum r a t e s ~ for the towing or
187 immobilization of vehicles or vessels as described in paragraph
188 (b), the county's ordinance established under s. 125.0103 shall
189 not apply within such municipality.
190 Section 4. Section 166.04465, Florida Statutes, is created
191 to read:
192 166.04465 Rules and ordinances relating to towing
193 services. -
194 (1) A municipality may not enact an ordinance or rule that
195 would impose a fee or charge on an authorized wrecker operator,
196 as defined ins. 323.002(1), or on a towing business for towing,
197 impounding, or storing a vehicle or vessel. As used in this
198 section, the term "towing business" means a business that
199 provides towing services for monetary gain.
200 (2) The prohibition set forth in subsection (1) does not
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201 affect a municipality's authority to:
202 (a) Levy a reasonable business tax under s. 205.0315, s.
203 205.043, ors. 205.0535.
204 (b} Impose and collect a reasonable administrative fee or
205 charge on the registered owner or other legally authorized
206 person in control of a vehicle or vessel, or the lienholder of a
207 vehicle or vessel, not to exceed 25 percent of the maximum
208 towing rate, to cover the cost of enforcement, including parking
209 enforcement, by the municipality when the vehicle or vessel is
210 towed from public property. An authorized wrecker operator or
211 towing business may impose and collect the administrative fee or
212 charge on behalf of the municipality and shall remit such fee or
213 charge to the municipality only after it is collected.
214 Section 5. Subsection (4) of section 323.002, Florida
215 Statutes, is renumbered as subsection (6), and new subsections
216 (4) and (5) are added to that section to read:
217 323.002 County and municipal wrecker operator systems;
218 penalties for operation outside of system.-
219 (4) (a) Except as provided in paragraph (b), a county or
220 municipality may not adopt or maintain in effect an ordinance or
221 rule that imposes a charge, cost, expense, fine, fee, or penalty
222 on an authorized wrecker operator, the registered owner or other
223 legally authorized person in control of a vehicle or vessel, or
224 the lienholder of a vehicle or vessel when the vehicle or vessel
225 is towed by an authorized wrecker operator under this chapter.
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226 (b} A county or municipality may adopt or maintain an
227 ordinance or rule that imposes a reasonable administrative fee
228 or charge on the registered owner or other legally authorized
229 person in control of a vehicle or vessel, or the lienholder of a
230 vehicle or vessel, that is towed by an authorized wrecker
231 operator, not to exceed 25 percent of the maximum towing rate,
232 to cover the cost of enforcement, including parking enforcement,
233 by the county or municipality when the vehicle or vessel is
234 towed from public property. An authorized wrecker operator or
235 towing business may impose and collect the administrative fee or
236 charge on behalf of the county or municipality and shall remit
237 such fee or charge to the county or municipality only after it
238 is collected.
239 (c} A county or municipality may not enact an ordinance or
240 rule that requires an authorized wrecker operator to accept a
241 credit card as a form of payment. However, if an authorized
242 wrecker operator does not accept a credit card, the wrecker
243 operator must maintain an operable automatic teller machine for
244 use by the public at its place of business. This paragraph does
245 not apply to a county or municipality that adopted an ordinance
246 or rule before January 1, 2020, requiring an authorized wrecker
247 operator to accept a credit card as a form of payment.
248 (5) Subsection (4) does not apply to the towing or
249 immobilization licensing, regulatory, or enforcement program of
250 a charter county described ins. 125.01047(3) or (4). Such
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251 charter county may impose a charge, cost, expense, fine, fee, or
252 penalty on an authorized wrecker operator in connection with a
253 violation of the towing or immobilization program requirements
254 as set forth by ordinance, resolution, or regulation.
255 Section 6. Subsection (2) of section 713.78, Florida
256 Statutes, is amended to read:
257 713.78 Liens for recovering, towing, or storing vehicles
258 and vessels.-
259 (2) Whenever a person regularly engaged in the business of
260 transporting vehicles or vessels by wrecker, tow truck, or car
261 carrier recovers, removes, or stores a vehicle or vessel upon
262 instructions from:
263 (a) The owner thereof;
264 (b) The owner or lessor, or a person authorized by the
265 owner or lessor, of property on which such vehicle or vessel is
266 wrongfully parked, and the removal is done in compliance withs.
267 715.07;
268 (c) The landlord or a person authorized by the landlord,
269 when such motor vehicle or vessel remained on the premises after
270 the tenancy terminated and the removal is done in compliance
271 withs. 83.806 ors. 715.104; or
272 (d) Any law enforcement agency,
273
274 she or he shall have a lien on the vehicle or vessel for a
275 reasonable towing fee, for a reasonable administrative fee or
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276 charge imposed by a county or municipality, and for a reasonable
277 storage fee; except that a fie storage fee may not shall be
278 charged if the vehicle or vessel is stored for fewer -1-e-s-s- than 6
279 hours.
280 Section 7. Subsections (2) and (4) of section 715.07,
281 Florida Statutes, are amended to read:
282 715.07 Vehicles or vessels parked on private property;
283 towing.-
284 (2) The owner or lessee of real property, or any person
285 authorized by the owner or lessee, which person may be the
286 designated representative of the condominium association if the
287 real property is a condominium, may cause any vehicle or vessel
288 parked on such property without her or his permission to be
289 removed by a person regularly engaged in the business of towing
290 vehicles or vessels, without liability for the costs of removal,
291 transportation, or storage or damages caused by such removal,
292 transportation, or storage, under any of the following
293 circumstances:
294 (a) The towing or removal of any vehicle or vessel from
295 private property without the consent of the registered owner or
296 other legally authorized person in control of that vehicle or
297 vessel is subject to substantial strict compliance with the
298 following conditions and restrictions:
299 1.a. Any towed or removed vehicle or vessel must be stored
300 at a site within a 10-mile radius of the point of removal in any
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301 county of 500,000 population or more, and within a 15-mile
302 radius of the point of removal in any county of fewer ±-es-s- than
303 500,000 population. That site must be open for the purpose of
304 redemption of vehicles on any day that the person or firm towing
305 such vehicle or vessel is open for towing purposes, from 8:00
306 a.m. to 6:00 p.m., and, when closed, shall have prominently
307 posted a sign indicating a telephone number where the operator
308 of the site can be reached at all times. Upon receipt of a
309 telephoned request to open the site to redeem a vehicle or
310 vessel, the operator shall return to the site within 1 hour or
311 she or he will be in violation of this section.
312 b. If no towing business providing such service is located
313 within the area of towing limitations set forth in sub-
314 subparagraph a., the following limitations apply: any towed or
315 removed vehicle or vessel must be stored at a site within a 20-
316 mile radius of the point of removal in any county of 500,000
317 population or more, and within a 30-mile radius of the point of
318 removal in any county of fewer ±-es-s- than 500,000 population.
319 2. The person or firm towing or removing the vehicle or
320 vessel shall, within 30 minutes after completion of such towing
321 or removal, notify the municipal police department or, in an
322 unincorporated area, the sheriff, of such towing or removal, the
323 storage site, the time the vehicle or vessel was towed or
324 removed, and the make, model, color, and license plate number of
325 the vehicle or description and registration number of the vessel
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326 and shall obtain the name of the person at that department to
327 whom such information was reported and note that name on the
328 trip record.
329 3. A person in the process of towing or removing a vehicle
330 or vessel from the premises or parking lot in which the vehicle
331 or vessel is not lawfully parked must stop when a person seeks
332 the return of the vehicle or vessel. The vehicle or vessel must
333 be returned upon the payment of a reasonable service fee of not
334 more than one-half of the posted rate for the towing or removal
335 service as provided in subparagraph 6. The vehicle or vessel may
336 be towed or removed if, after a reasonable opportunity, the
337 owner or legally authorized person in control of the vehicle or
338 vessel is unable to pay the service fee. If the vehicle or
339 vessel is redeemed, a detailed signed receipt must be given to
340 the person redeeming the vehicle or vessel.
341 4. A person may not pay or accept money or other valuable
342 consideration for the privilege of towing or removing vehicles
343 or vessels from a particular location.
344 5. Except for property appurtenant to and obviously a part
345 of a single-family residence, and except for instances when
346 notice is personally given to the owner or other legally
347 authorized person in control of the vehicle or vessel that the
348 area in which that vehicle or vessel is parked is reserved or
349 otherwise unavailable for unauthorized vehicles or vessels and
350 that the vehicle or vessel is subject to being removed at the
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351 owner's or operator's expense, any property owner or lessee, or
352 person authorized by the property owner or lessee, before prior
353 4:--e towing or removing any vehicle or vessel from private
354 property without the consent of the owner or other legally
355 authorized person in control of that vehicle or vessel, must
356 post a notice meeting the following requirements:
357 a. The notice must be prominently placed at each driveway
358 access or curb cut allowing vehicular access to the propertyr
359 within 5 feet from the public right of way line. If there are no
360 curbs or access barriers, the signs must be posted not fewer
361 -1-es-s- than one sign for each 25 feet of lot frontage.
362 b. The notice must clearly indicate, in not fewer -l-es-5-
363 than 2-inch high, light-reflective letters on a contrasting
364 background, that unauthorized vehicles will be towed away at the
365 owner's expense. The words "tow-away zone" must be included on
366 the sign in not fewer -1-es-s- than 4-inch high letters.
367 c. The notice must also provide the name and current
368 telephone number of the person or firm towing or removing the
3 69 vehicles or vessels.
370 d. The sign structure containing the required notices must
371 be permanently installed with the words "tow-away zone" not less
372 than 3 feet and not more than 6 feet above ground level and must
373 be continuously maintained on the property for not fewer -l-es-5-
374 than 24 hours before prior to the towing or removal of any
375 vehicles or vessels.
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376 e. The local government may require permitting and
377 inspection of these signs before prior to any towing or removal
378 of vehicles or vessels being authorized.
379 f. A business with 20 or fewer parking spaces satisfies
380 the notice requirements of this subparagraph by prominently
381 displaying a sign stating "Reserved Parking for Customers Only
382 Unauthorized Vehicles or Vessels Will be Towed Away At the
383 Owner's Expense" in not fewer ±-eS-S- than 4-inch high, light-
384 reflective letters on a contrasting background.
385 g. A property owner towing or removing vessels from real
386 property must post notice, consistent with the requirements in
387 sub-subparagraphs a.-f., which apply to vehicles, that
388 unauthorized vehicles or vessels will be towed away at the
389 owner's expense.
390
391 A business owner or lessee may authorize the removal of a
392 vehicle or vessel by a towing company when the vehicle or vessel
393 is parked in such a manner that restricts the normal operation
394 of business; and if a vehicle or vessel parked on a public
395 right-of-way obstructs access to a private driveway the owner,
396 lessee, or agent may have the vehicle or vessel removed by a
397 towing company upon signing an order that the vehicle or vessel
398 be removed without a posted tow-away zone sign.
399 6. Any person or firm that tows or removes vehicles or
400 vessels and proposes to require an owner, operator, or person in
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401 control or custody of a vehicle or vessel to pay the costs of
402 towing and storage before prior to redemption of the vehicle or
403 vessel must file and keep on record with the local law
404 enforcement agency a complete copy of the current rates to be
405 charged for such services and post at the storage site an
406 identical rate schedule and any written contracts with property
407 owners, lessees, or persons in control of property which
408 authorize such person or firm to remove vehicles or vessels as
409 provided in this section.
410 7. Any person or firm towing or removing any vehicles or
411 vessels from private property without the consent of the owner
412 or other legally authorized person in control or custody of the
413 vehicles or vessels shall, on any trucks, wreckers as defined in
414 s. 713. 78 (1) (c), or other vehicles used in the towing or
415 removal, have the name, address, and telephone number of the
416 company performing such service clearly printed in contrasting
417 colors on the driver and passenger sides of the vehicle. The
418 name shall be in at least 3-inch permanently affixed letters,
419 and the address and telephone number shall be in at least 1-inch
420 permanently affixed letters.
421 8. Vehicle entry for the purpose of removing the vehicle
422 or vessel shall be allowed with reasonable care on the part of
423 the person or firm towing the vehicle or vessel. Such person or
424 firm shall be liable for any damage occasioned to the vehicle or
425 vessel if such entry is not in accordance with the standard of
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426 reasonable care.
427 9. When a vehicle or vessel has been towed or removed
428 pursuant to this section, it must be released to its owner or
429 person in control or custody custodian within 1 erre hour after
430 requested. Any vehicle or vessel owner or person in control or
431 custody has agent shall have the right to inspect the vehicle or
432 vessel before accepting its return, and no release or waiver of
433 any kind which would release the person or firm towing the
434 vehicle or vessel from liability for damages noted by the owner
435 or person in control or custody other legally authorized person
436 at the time of the redemption may be required from any vehicle
437 or vessel owner or person in control or custody ,custodian, or
438 agent as a condition of release of the vehicle or vessel to its
439 owner or person in control or custody. A detailed, signed
440 receipt showing the legal name of the company or person towing
441 or removing the vehicle or vessel must be given to the person
442 paying towing or storage charges at the time of payment, whether
443 reque,sted or not.
444 (b) These requirements are minimum standards and do not
445 preclude enactment of additional regulations by any municipality
446 or county including the right to regulate rates when vehicles or
447 vessels are towed from private property, except that a county or
448 municipality may not enact an ordinance or rule that requires a
449 towing business to accept a credit card as a form of payment.
450 However, if a towing business does not accept a credit card, the
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451 towing business must maintain an operable automatic teller
452 machine for use by the public at its place of business. This
453 paragraph does not apply to a county or municipality that
454 adopted an ordinance or rule before January 1, 2020, requiring a
455 towing business to accept a credit card as a form of payment.
456 Additionally, a municipality or county may not authorize
457 attorney fees in connection with the towing of vehicles or
458 vessels from private property. The regulation of attorney fees
459 in connection with the towing of vehicles or vessels from
460 private property is expressly preempted to the state and any
461 municipal or county ordinance on the subject is void.
462 (4) When a person improperly causes a vehicle or vessel to
463 be removed, such person shall be liable to the owner or lessee
464 of the vehicle or vessel for the cost of removal,
465 transportation, and storage andT any damages resulting from the
466 removal, transportation, or storage of the vehicle or vesselT
467 attorney's fees; and court costs. If an action is filed, the
468 court may award damages, attorney fees, and court costs in favor
469 of the prevailing party after determining the respective rights
4 70 of the parties.
471 Section 8. This act shall take effect July 1, 2020.
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HB 133 by Rep. McClain
Towing and Immobilization of Vehicles
AMENDMENT SUMMARY
December 11, 2020
Amendment 1 by Rep. McClain (line 456-471 ):
Removes the bill language regarding liability for attorney fees and court costs relating to towing
of vehicles from private property. Specifically, the amendment:
• Removes the provision from the bill that authorizes the court, if an action is filed, to
award damages, attorney fees, and court costs to the prevailing party.
• Maintains the requirement in current law for persons who improperly tow to pay
attorney's fees and court costs.
• Removes the provision from the bill that expressly preempts to the state the regulation of
attorney fees in connection with the towing of vehicles or vessels from private property,
and removes the provision that would void any municipal or county ordinance on the
subject.
• Changes the effective date from July 1, 2020, to October 1, 2020.
Amendment 2 by Rep. McClain (line 357-375):
Revises tow-away zone notice requirements. Specifically, the amendment:
• Changes the current requirement that a tow-away zone notice be placed within 5 feet
from the "public right-of-way line" to instead require the notice to be placed within 10 feet
from the "road" as defined s. 334.03(22), F.S.
• Reverts the height requirement back to current law, which means signs must still be
permanently installed between three and six feet above ground level.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 133 (2020)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/0 OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Business & Professions
2 Subcommittee
3 Representative McClain offered the following:
4
5 Amendment (with title amendment)
6 Remove lines 456-471 and insert:
7 Section 8. This act shall take effect October 1, 2020.
8
9 -----------------------------------------------------
10 T I T L E A ME N D ME N T
11 Remove lines 31-38 and insert:
12 accept a specified form of payment; providing an
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 133 (2020)
Amendment No. 2
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/0 OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Business & Professions
2 Subcommittee
3 Representative McClain offered the following:
4
5 Amendment
6 Remove lines 357-375 and insert:
7 a. The notice must be prominently placed at each driveway
8 access or curb cut allowing vehicular access to the property,
9 within 10 ~ feet from the road as defined ins. 334.03(22)
10 public right of way line. If there are no curbs or access
11 barriers, the signs must be posted not fewer ±-efrS- than one sign
12 for each 25 feet of lot frontage.
13 b. The notice must clearly indicate, in not fewer ±-efrS-
14 than 2-inch high, light-reflective letters on a contrasting
15 background, that unauthorized vehicles will be towed away at the
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 133 (2020)
Amendment No. 2
16 owner's expense. The words "tow-away zone" must be included on
17 the sign in not fewer ±e-e-s- than 4-inch high letters.
18 c. The notice must also provide the name and current
19 telephone number of the person or firm towing or removing the
20 vehicles or vessels.
21 d. The sign structure containing the required notices
22 must be permanently installed with the words "tow-away zone" not
23 less than 3 feet and not more than 6 feet above ground level and
24 must be continuously maintained on the property for not fewer
25 ±e-e-s- than 24 hours before prior to the towing or removal of any
26 vehicles or vessels.
27
28
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HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 283 Liens and Bonds
SPONSOR(S): Toledo and others
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Business & Professions Subcommittee Brackett ;}f? Anstead £{)_,
2) Civil Justice Subcommittee
3) Commerce Committee
SUMMARY ANALYSIS
A construction lien is designed to protect those who provide work or materials to improve property for a
property owner that are not in direct contract with the owner, such as subcontractors, laborers, and material
suppliers. Any person who provides services, labor, or materials for improving, repairing, or maintaining real
property (except public property) may place a construction lien on the property if they are not paid for their
services, and they timely notify the property owner.
Under part I of chapter 713, F.S., a person who is not in direct contract with the owner, such as subcontractors
and material suppliers, that intends to secure the right to claim a lien against the property must take several
steps. If a payment bond does not apply, the first step is to serve a notice to owner setting forth the person's
name and address and the nature of the services or materials furnished or to be furnished to the owner's
property. The notice to owner must be served no later than 45 days after the person begins furnishing labor,
services, or materials.
Once the owner receives a notice to owner from a subcontractor or material supplier, the owner must obtain a
waiver or release of lien from the subcontractor or material supplier before paying the contractor. Otherwise, a
payment to the contractor may constitute an improper payment and the owner would be liable to the
subcontractor or material supplier if he or she is not paid by the contractor.
The bill:
• Provides that any provision in a waiver or release of lien that is not related to the waiver or release of
lien is not enforceable.
• Clarifies the definition of "final furnishing" related to specially fabricated materials.
• Provides that construction liens have priority over debts that are recorded after the construction lien is
recorded, even if such debts relate back to a debt that was recorded before the construction lien
attached pursuant to the operation of "any common law doctrine or remedy."
• Removes the requirement that a notice of commencement must include:
o The owner or lessee's interest in the property;
o A statement that the ownership interest is a leasehold interest if a lessee contracted for the
work; and
o The address of the fee simple titleholder if it is different from the owner.
The bill does not appear to have a fiscal impact on state and local governments.
The bill provides for an effective date of July 1, 2020.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0283.BPS.DOCX
DATE: 12/6/2019
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
Background
Florida law ensures that people who work on construction projects can obtain payments for their work.
Any person who provides services, labor, or materials for improving, repairing, or maintaining real
property (except public property) may place a construction lien on the property, provided the person
meets the procedural guidelines set forth in current law. 1
Under part I of chapter 713, F.S., a person who is not in privity or direct contract with the owner, such
as subcontractors and material suppliers, who intends to secure the right to claim a lien against the
property must take several steps. The construction lien law requires various notices, demands, and
requests to be provided in writing to the homeowner, contractor, subcontractor, lender, and building
officials. Florida law requires that some notices, demands, and requests be in the statutory form
provided in statute, while others do not have to be in the statutory form. The following notices are
required by the act: Notice of Commencement,2 Notice to Owner, 3 Claim of Lien, 4 Notice of
Termination, 5 Waiver or Release of Lien, 6 Notice of Contest of Lien,7 Contractor's Final Payment
Affidavit, 8 and Demands of Written Statement of Account. 9
For example, if a payment bond does not apply, the person must serve a notice to owner10 (in the
statutory form provided) that sets forth the person's name and address and the nature of the services
or materials furnished or to be furnished to the owner's property. 11 The notice informs the owner of who
is providing services or materials on their property, and that the person serving the notice is looking to
the owner to ensure he or she receives payment for their services or materials. 12 The notice to owner
must be served no later than 45 days after the person begins furnishing labor, services, or materials. 13
Once the owner receives a notice to owner, the owner must obtain a waiver or release of lien (not
required to be in the statutory form) from that person before paying the contractor. Otherwise, a
payment to the contractor may constitute an improper payment and the owner is liable to the person if
he or she is not paid by the contractor. 14
I
Ch. 713, F.S.
2
S. 713.13, F.S;.
2
S. 713.06(2), F.S; MHB Construction Services, LLC v. RM-NA HB Waterway Shoppes, L.l.C., 74 So. 3d 587, 589 (Fla. 4th DCA
2011) "Though the Notice of Commencement was originally required to trigger a commencement date from which to measure time
limitations under the Mechanic's Lien Law, the information contained in the Notice of Commencement provides all the details
necessary to complete a Notice to Owner."
3
S. 713.06(2), F.S.
4
S. 713.08, F.S.
5
S. 713.132, F.S.
6
S. 713.20, F.S.
7
S. 713.22(2), F.S.
8
S. 713.06(3), F.S.
9
S. 713.16, F.S.
10
S. 713.06(2), F.S.
11
S. 713.06(2)(a), F.S.
12
Stocking, 76 So. 3d 313, 319.
13 Id.
14
Id.; S. 713.06, F.S.
STORAGE NAME: h0283.BPS.DOCX PAGE: 2
DATE: 12/6/2019
A payment bond is a type of bond that guarantees that a contractor will pay subcontractors, laborers,
and material suppliers for their work. 15 It forms a three-part contract between the owner, the contractor,
and the surety, and ensures that liens are not filed on the project. A payment bond for a construction
project exempts the owner from the construction lien law because the surety insurer providing the bond
guarantees the subcontractors, laborers, and material suppliers will receive payment for their work or
materials. Current law requires contractors to obtain a payment bond for public projects over
$100,000. 16
Waiver or Release of Lien - Current Law
Prior to making a payment to a contractor, an owner must request that a person who served a notice to
owner provide a waiver or release of lien. A waiver or release of lien is essentially a receipt provided by
the person who served a notice to owner acknowledging payment for services performed or materials
provided and a waiver of their ability to file a lien for those services or materials. 17 A waiver or release
of lien can be a partial waiver for some of the person's services or materials or it can be a final waiver
for all of the person's services or materials. 18 A person may not waive or release their right to file a lien
prior to doing work or providing materials. However, a person may waive or release their right to file a
lien prior to receiving payment for their services or materials. 19
Current law provides a statutory form for a waiver or release of lien. However, current law does not
require that the waiver or release of lien be in the statutory form. 20 Thus, a waiver or release of lien may
be substantially different from the form and it may include additional provisions that are not included in
the form. However, an owner may not require a person to sign a waiver or release of lien that is
substantially different from the form. 21
The form provides that the person who served the notice of owner waives their right to claim a lien for
services or materials provided for the job on the owner's property in exchange for a certain sum of
money. 22 The form entitled "Waiver and Release of Lien Upon Partial or Final Payment" states:
"The undersigned lienor, in consideration of the (sum of or final payment in the amount
of) $ , hereby waives and releases its lien and right to claim a lien for labor, services, or
materials furnished to (insert the name of your customer) on the job of (insert the
name of the owner) to the described property (insert description of the property)." 23
Industry biogs and news reports indicate it has become routine in the industry for the form for a waiver
or release of lien to include other miscellaneous provisions, and that subcontractors and material
suppliers should be warned about signing a waiver or release of lien without understanding the extra
provisions. They advise to carefully inspect a waiver or release to ensure someone does not
unknowingly sign a waiver or release that includes additional provisions such as a waiver or release of
all claims, damages, losses, or expenses. 24
15
See Bond, Black's Law Dictionary (11th ed. 2019).
16
S. 255.05, F.S.
17
S. 713.20, F.S.; Leonard Klingen, Florida's unwieldy but effective construction lien law, Florida Bar Journal (Jan./Feb. 2019)
https://www.floridabar.org/the-florida-bar-journal/floridas-unwieldy-but-effective-construction-lien-law/ (last visited Nov. 12, 2019).
18
S. 713.20, F.S.
19 Id
20 Id
21Id
22 Jd
23 Id
24
Levelset, Florida's "Non-Required" Statutory Lien Waivers Can Lead to Corifusion, (May 20, 2019)
https://www.levelset.com/blog/florida-statutory-lien-waivers-lead-to-confusion/ (last visited Dec. 6, 2019); Craig Distel,
Understanding waivers and releases for Florida construction contractors, (Dec. 20, 2018)
https://mcdonaldhopkins.com/lnsights/B log/lndustry-Insights/2018/ 12/20/Understanding-waivers-and-releases-for- Florida-
construction-contractors (last visited Dec. 6, 2019).
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Right to Claim Against a Payment Bond - Current Law
Similar to a waiver or release of lien, in a situation where there is a payment bond, prior to making a
payment to a subcontractor, laborer, or material supplier, a contractor may request the person provide
a waiver of right to claim against the payment bond.
A waiver of right to claim against a bond is similar to a waiver or release of lien. Like a waiver or release
of lien, a waiver of right to claim against the bond is essentially a receipt provided by the person
acknowledging payment for services performed or materials provided and a waiver of their ability to
seek payment from the surety. 25
Current law provides a statutory form for a waiver of right to claim against a bond, which is similar to a
waiver or release of a lien. Current law provides that a contractor may not require a person to sign a
waiver of right to claim against a bond that is substantially different from the form. However, also like a
waiver or release of lien, the statutory form for the waiver of right to claim against a bond is not
required, and a waiver of right to claim against a bond may be different from the form and it may include
additional provisions that are not included in the statutory form. 26
According to industry experts, any person required to provide a claim against a bond must ensure they
carefully inspect a waiver or release to ensure they do not unknowingly sign a waiver or release that
includes additional provisions such as a waiver or release of all claims, damages, losses, or
expenses. 27
Waiver or Release of Lien and Right to Claim Against a Payment Bond - Effect of the Bill
The bill provides that any provision in a waiver or release of lien or a right to claim against a bond that
is not related to the waiver or release of lien or the right to claim against a bond is not enforceable.
Priority of Construction Liens - Current Law
Construction liens have priority over any conveyance, encumbrance, or demand (debt) not recorded
against the real property prior to the time the lien attaches. Any debt recorded prior to the time the lien
attaches and any proceeds thereof, regardless of when disbursed, have priority over construction
liens. 28
However, under the common law doctrine of subrogation, any debt that is recorded after the time a lien
attaches will take priority over the lien if the debt was obtained to satisfy a previous debt that was
recorded prior to the time the construction lien attaches. 29
The doctrine of subrogation is the substitution of one party for another, where one party pays the debt
of another party, entitling the paying party to rights, remedies, or securities (including priority) that
would otherwise belong to the original debtor. 30 There are two types of subrogation: conventional and
equitable. 31
25
Ss. 255.05(2), & 713.235, F.S.
26 Id
27
Levelset, supra note 24.
28
S. 713.07(3), F.S.
29
Federal Land Bank of Columbia v. Godwin, 107 Fla. 537, 549-551 (Fla. 1933); Bankers Lending Company, LLC v. Angela Jackson,
253 So. 3d 1174, 1177 (Fla. 5th DCA 2018).
30
Black's Law Dictionary (11th ed. 2019).
31
Dade County School Board v. Radio Station WQBA, 731 So. 2d 638, 646 (Fla. 1999).
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Conventional subrogation occurs when parties who have recorded debts against real property agree
that a person who pays the debt of one of the parties will have the rights, remedies, and securities of
that party. 32
Equitable subrogation does not depend on a contract. It arises by operation of law to provide a remedy
and prevent unjust enrichment. 33 Equitable subrogation applies when the person paying the debt or lien
with higher priority: made the payment to protect his or her own interest; did not act as a volunteer; is
not primarily liable for the debt her or she is paying; paid off the entire debt; and subrogating the person
for the original debtor does not injustice the rights of another debt holder. 34 If a person meets the
requirements of equitable subrogation then he or she will have the rights, remedies, and securities of
the debt or lien he or she paid regardless if any other person with a debt or lien against the property
agrees to it. 35
Priority of Construction Liens- Effect of the Bill
The bill provides that construction liens have priority over any debt not recorded against the real
property prior to the time the lien attaches, including any debt that relates back to a debt recorded
before the construction lien is recorded "pursuant to the operation of any common law doctrine or
remedy."
Final Furnishing of Materials & Specially Fabricated Materials- Current Law
In order to record a construction lien on real property, a person must record a claim of lien with the
clerk of court of the county where the property is located and serve the owner with the claim of lien. The
person must serve the owner with the claim of lien before recording the lien or within 15 days of
recording the lien. 36
If a claim of lien is not recorded, the lien is void to the extent that the failure or delay is shown to have
been prejudicial to any person entitled to rely on service of the claim of lien. 37
A person may file a claim of lien at any time during the progress of work. However, a person may not
file a claim of lien later than 90 days after the final furnishing of labor or materials by the person. 38
Current law provides that the final furnishing date is the last day the person furnishes labor, services, or
materials. The date may not be measured by other standards, such as the issuance of a certificate of
occupancy or the issuance of a certificate of final completion, and does not include correction of
deficiencies in the person's previously performed work or materials supplied. With respect to rental
equipment, the term means the date that the rental equipment was last on the job site and available for
use. 39
Materials must be incorporated in the jobsite in order for the materials to considered furnished.
Current law provides that the delivery of materials to the jobsite is prima facie evidence that the
materials have been incorporated into the jobsite. 40
However, "specially fabricated materials" do not have to be incorporated into a jobsite in order
for the materials to be considered furnished. Specially fabricated materials are materials made
32 Jd
33
Federal Land Bank a/Columbia v. Godwin, 107 Fla. 537, 549-551 (Fla. 1933).
34
Bankers lending Company, LLC v. Angela Jackson, 253 So. 3d 1174, 1177 (Fla. 5th DCA 2018).
35 Id
36
S. 713.08, F.S.
37
S. 713.08(4), F.S.
38
S. 713.08(5), F.S.
39
S. 713.01(12), F.S.
40
S. 713.01(13), F.S.
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for a particular project and are not suited or readily adaptable for use in a different project. 41
Since specially fabricated materials cannot be used for another project, Florida courts have
determined that specially fabricated materials do not have to be delivered to a jobsite in order
for the supplier to file lien on the real property. 42 However, current law does not provide a date
to determine the last day specially fabricated materials are furnished.
Final Furnishing of Materials & Specially Fabricated Materials - Effect of the Bill
The bill provides that the final furnishing date for specially fabricated materials is the date that the last
portion of the specially fabricated materials is delivered to the jobsite, or if any portion of the specially
fabricated materials is not delivered to the jobsite by no fault of the material supplier, the final furnishing
date is the later of:
• One year after the date the material supplier completes the fabrication;
• One year after the date the material supplier receives the last portion of the specially fabricated
materials needed to complete the order; or
• The date the notice of commencement expires.
Notice of Commencement- Current Law
Before construction begins, a property owner or the owner's authorized agent generally must file a
notice of commencement for recording by the clerk of court in the official records. The notice of
commencement must also be posted on the construction site, and filed with the building department
before the first inspection. 43 The notice of commencement determines the priority of construction liens,
provides details needed to fill out a notice to owner, establishes the date on which the statute of
limitations begins to run, and protects owners from double payments. 44
Current law provides a statutory form for the notice of commencement, and the notice must be
substantially similar to the form. The notice of commencement must contain information describing: the
real property on which the improvement will be located; a general description of the improvement; the
name and address of the owner and contractor; information relating to a surety bond, if a bond applies;
the contact information for the lender for the project; contact information designated by the owner upon
whom notices may be served; the notice's expiration date; a warning in all caps stating that the notice
must be recorded and payments after the notice expires could be improper and lead to the owner
paying twice. 45
The owner's information required in the notice of commencement must include: 46
• The name and address of the owner or lessee if the lessee contracted for the work;
• The owner or lessee's interest in the property;
• A statement that the ownership interest is a leasehold interest if a lessee contracted for the
work;
• The name and address of the fee simple titleholder4 7 (if different from the owner); and
41
Surf Properties v. Markowitz Bros., 75 So. 298, 302 (Fla. 1954).
42
Oolite Industries, Inc. v. Millman Construction Company, Inc., 501 So. 2d 655, 656 (Fla. 3rd DCA 1987); Aquatic Plant
Management, Inc. v. Paramount Engineering, Inc., 977 So. 2d 600, 603, (Fla. 4th DCA 2007).
43
Ss. 713.l3(l)(a), & 713.l35(l)(d), F.S.
44
Stocking Building Supply of Florida, Inc. v. Soares Da Costa Construction Services, LLC, 76 So. 3d 313, 317 (Fla 3rd DCA 2011 );
The Florida Senate Committee on Regulated Industries, Review ofthe Florida Construction Lien Law, November 2007
http://archive.flsenate.gov/data/Publications/2008/Senate/reports/interim reports/pdf/2008- l 49ri.pdf (last visited Nov. 11, 2019); Fred
Dudley, William A. Buzzett, & Deborah Kaveney Kearney, Construction Lien Law Reform: The Equilibrium of Change, 18 Fla. St. U.
L. Rev., 278 (1991).
45
S. 713.13(l)(a), F.S.
46
S. 713.13(l)(d), F.S.
47
The construction lien law does not define fee simple titleholder; however, Black's Law Dictionary defines fee simple title as an
interest in land that, being the broadest property interest allowed by law, endures until the current holder dies without heirs. Black's
Law Dictionary (I Ith ed. 2019).
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• Any person designated by the owner to receive a claim of lien.
The construction lien law defines "owner" as a person who is the owner of any legal or equitable
interest in real property, which interest can be sold by legal process, and who enters into a contract for
the improvement of the real property. 48
Notice of Commencement - Effect of the Bill
The bill repeals the requirement that the notice must include:
• The owner or lessee's interest in the property;
• A statement that the ownership interest is a leasehold interest if a lessee contracted for the
work; and
• The name and address of the fee simple titleholder if different from the owner.
The bill also provides that instead of the owner's information, the notice must include the name,
address, and phone number of the "owner of record" for the property. The construction lien law does
not currently use or define the term "owner of record." 49
Manner of Serving Documents - Current Law
Notices, claims, and waivers must be served by one of the following methods: 50
• By actual delivery to the person being served;
• By common carrier delivery service or by registered, Global Express Guaranteed, or certified
mail, with postage or shipping paid by the sender and with evidence of delivery; or
• By posting on the construction site if service cannot be performed by the other two methods.
Service by common carrier delivery service or by registered, Global Express Guaranteed, or certified
mail is effective on the day the notice, claim, or waiver is mailed, if it is: 51
• Sent to the last address shown in the notice of commencement or, in the absence of a notice, to
the last address shown in the building permit application, or to the last known address of the
person to be served; and
• Returned as being "refused," "moved, not forwardable," or "unclaimed," or is otherwise not
delivered or deliverable through no fault of the person serving the item.
Manner of Serving Documents - Effect of the Bill
The bill provides that service by common carrier delivery service or by registered, Global Express
Guaranteed, or certified mail is effective on the day the notice, claim, or waiver is mailed or shipped.
Notice of Nonpayment for a Payment Bond- Current Law
Since a payment bond exempts the owner from having construction liens placed on their real property,
the surety is the one who guarantees a subcontractor, laborer, or material supplies that they will receive
payment from the general contractor. If the general contractor fails to do so then the subcontractor,
laborer, or material supplier will seek payment from the surety.
In order to receive protection under a payment bond for a public or private project, a subcontractor,
laborer, or material supplier who does not have a direct contract with the contractor must provide a
written notice of nonpayment to the contractor and the surety. 52
48
S. 713.01(23), F.S.
49
See Ch. 713, F.S.
50
S. 713.18(1), F.S.
51
713.18(3), F.S.
52
Ss. 255.05(2), & 713.23(l)(d), F.S. F.S.
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Notice of Nonpayment for a Payment Bond - Effect of the Bill
The bill provides that a subcontractor, laborer, or material supplier must provide a notice of
nonpayment to the general contractor and a copy of the notice of nonpayment to the surety.
8. SECTION DIRECTORY:
Section 1. Amends s. 255.05, F.S., relating to the notice of nonpayment and the waiver or release
of claim against a payment bond for public projects.
Section 2. Amends s. 713.01, F.S., relating to the final furnishing of specially fabricated materials.
Section 3. Amends s. 713.07, F.S., relating to the priority of construction liens.
Section 4. Amends s. 713.13, F.S., relating to the notice of commencement.
Section 5. Amends s. 713.18, F.S., relating to the service of instruments.
Section 6. Amends s. 713.20, F.S., relating to the waiver or release of construction liens.
Section 7. Amends s. 713.23, F.S., relating to the notice of nonpayments.
Section 8. Amends s. 713.235, F.S., relating to the waiver or release of claim against a payment
bonds for private projects.
Section 9. Providing an effective date of July 1, 2020.
11. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
8. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Unknown.
D. FISCAL COMMENTS:
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None.
Ill. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
None.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
The bill provides that construction liens have priority over any debt not recorded against the real
property prior to the time the lien attaches, including any debt that relates back to a debt recorded
before the construction lien is recorded pursuant to the operation of "any common law doctrine or
remedy." It is not clear exactly what "pursuant to the operation of any common law doctrine or remedy"
means or how many common law doctrines or remedies exist. Thus, the effect of this provision is
unknown.
The bill does not provide a definition for "owner of record," and the construction lien law does not define
the term. However, "owner of record" is defined in multiple places in current law with different
interpretations of who is an oi.yner of record. For example, s. 45.032(1 )(a), F.S., defines "owner of
record" as the person or persons who appear to be the owners of a property that is the subject of a
foreclosure proceeding. Section 328.0015(1 )(r), F.S., defines "owner of record" as the owner indicated
in the Department of Highway Safety and Motor Vehicles. It is recommended that in order to prevent
confusion the bill be amended to include a definition of "owner of record."
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
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F L O R D A H O U S E O F R E P R E S E N T A T I V E S
HB 283 2020
1 A bill to be entitled
2 An act relating to liens and bonds; amending s.
3 255.05, F.S.; requiring that a copy of a notice of
4 nonpayment be served on the surety; providing that
5 certain waivers and releases are unenforceable;
6 amending s. 713.01, F.S.; revising the definition of
7 the term "final furnishing"; amending s. 713.07, F.S.;
8 providing that certain liens have priority over
9 certain subordinate conveyances, encumbrances, or
10 demands; amending s. 713.13, F.S.; revising
11 information to be included in a notice of
12 commencement; amending s. 713.18, F.S.; providing that
13 service of an instrument is effective on the date of
14 shipping; amending ss. 713.20 and 713.235, F.S.;
15 providing that certain waivers and releases are
16 unenforceable; amending s. 713.23, F.S.; requiring
17 that a copy of a notice of nonpayment be served on the
18 surety; providing an effective date.
19
20 Be It Enacted by the Legislature of the State of Florida:
21
22 Section 1. Paragraphs (a) and (fl of subsection (2) of
23 section 255.05, Florida Statutes, are amended to read:
24 255.05 Bond of contractor constructing public buildings;
25 form; action by claimants.-
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26 (2) (a) 1. If a claimant is no longer furnishing labor,
27 services, or materials on a project, a contractor or the
28 contractor's agent or attorney may elect to shorten the time
29 within which an action to enforce any claim against a payment
30 bond must be commenced by recording in the clerk's office a
31 notice in substantially the following form:
32 NOTICE OF CONTEST OF CLAIM
33 AGAINST PAYMENT BOND
34 To: ... (Name and address of claimant) ...
35 You are notified that the undersigned contests your notice
36 of nonpayment, dated ............ , ........ , and served on the
37 undersigned on ............ , ........ , and that the time within
38 which you may file suit to enforce your claim is limited to 60
39 days after the date of service of this notice.
40 DATED on ............ , ........ .
41 Signed: ... (Contractor or Attorney) .. .
42 The claim of a claimant upon whom such notice is served and who
43 fails to institute a suit to enforce his or her claim against
44 the payment bond within 60 days after service of such notice is
45 extinguished automatically. The contractor or the contractor's
46 attorney shall serve a copy of the notice of contest on -=E-e- the
47 claimant at the address shown in the notice of nonpayment or
48 most recent amendment thereto and shall certify to such service
49 on the face of the notice and record the notice.
50 2. A claimant, except a laborer, who is not in privity
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51 with the contractor shall, before commencing or not later than
52 45 days after commencing to furnish labor, services, or
53 materials for the prosecution of the work, serve the contractor
54 with a written notice that he or she intends to look to the bond
55 for protection. A claimant who is not in privity with the
56 contractor and who has not received payment for furnishing his
57 or her labor, services, or materials shall serve a written
58 notice of nonpayment on the contractor and a copy on the surety.
59 The notice of nonpayment shall be under oath and served during
60 the progress of the work or thereafter but may not be served
61 earlier than 45 days after the first furnishing of labor,
62 services, or materials by the claimant or later than 90 days
63 after the final furnishing of the labor, services, or materials
64 by the claimant or, with respect to rental equipment, later than
65 90 days after the date that the rental equipment was last on the
66 job site available for use. Any notice of nonpayment served by a
67 claimant who is not in privity with the contractor which
68 includes sums for retainage must specify the portion of the
69 amount claimed for retainage. An action for the labor, services,
70 or materials may not be instituted against the contractor or the
71 surety unless the notice to the contractor and notice of
72 nonpayment have been served, if required by this section.
73 Notices required or permitted under this section must be served
74 in accordance withs. 713.18. A claimant may not waive in
75 advance his or her right to bring an action under the bond
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76 against the surety. In any action brought to enforce a claim
77 against a payment bond under this section, the prevailing party
78 is entitled to recover a reasonable fee for the services of his
79 or her attorney for trial and appeal or for arbitration, in an
80 amount to be determined by the court, which fee must be taxed as
81 part of the prevailing party's costs, as allowed in equitable
82 actions. The time periods for service of a notice of nonpayment
83 or for bringing an action against a contractor or a surety is
84 shall be measured from the last day of furnishing labor,
85 services, or materials by the claimant and may not be measured
86 by other standards, such as the issuance of a certificate of
87 occupancy or the issuance of a certificate of substantial
88 completion. The negligent inclusion or omission of any
89 information in the notice of nonpayment that has not prejudiced
90 the contractor or surety does not constitute a default that
91 operates to defeat an otherwise valid bond claim. A claimant who
92 serves a fraudulent notice of nonpayment forfeits his or her
93 rights under the bond. A notice of nonpayment is fraudulent if
94 the claimant has willfully exaggerated the amount unpaid,
95 willfully included a claim for work not performed or materials
96 not furnished for the subject improvement, or prepared the
97 notice with such willful and gross negligence as to amount to a
98 willful exaggeration. However, a minor mistake or error in a
99 notice of nonpayment, or a good faith dispute as to the amount
100 unpaid, does not constitute a willful exaggeration that operates
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101 to defeat an otherwise valid claim against the bond. The service
102 of a fraudulent notice of nonpayment is a complete defense to
103 the claimant's claim against the bond. The notice of nonpayment
104 under this subparagraph must include the following information,
105 current as of the date of the notice, and must be in
106 substantially the following form:
107 NOTICE OF NONPAYMENT
108 To: ... (name of contractor and address) ...
109 ... (name of surety and address) ...
110 The undersigned claimant notifies you that:
111 1. Claimant has furnished ... (describe labor, services, or
112 materials) ... for the improvement of the real property
113 identified as ... (property description) .... The corresponding
114 amount unpaid to date is$ .... , of which$ .... is unpaid
115 retainage.
116 2. Claimant has been paid to date the amount of$ .... for
117 previously furnishing ... (describe labor, services, or
118 materials) ... for this improvement.
119 3. Claimant expects to furnish ... (describe labor,
120 services, or materials) ... for this improvement in the future
121 (if known), and the corresponding amount expected to become due
122 is $.... ( if known) .
123 I declare that I have read the foregoing Notice of Nonpayment
124 and that the facts stated in it are true to the best of my
125 knowledge and belief.
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12 6 DATED on . . . . . . . . . . . . ,
127 ... (signature and address of claimant) ...
128 STATE OF FLORIDA
129 COUNTY OF ....... .
130 The foregoing instrument was sworn to (or affirmed) and
131 subscribed before me this .... day of .... , ... (year) ... , by
132 (name of signatory) ... .
133 ... (Signature of Notary Public - State of Florida) ...
134 ... (Print, Type, or Stamp Commissioned Name of Notary
135 Public) .. .
136 Personally Known ........ OR Produced Identification ....... .
137 Type of Identification Produced . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
138 (f) A provision in a waiver or release that is not related
139 to the waiver or release of a claim against the payment bond as
140 provided in this subsection is unenforceable substantially
141 similar to the forms in this subsection is enforceable in
142 accordance with its terms.
143 Section 2. Subsection (12) of section 713.01, Florida
144 Statutes, is amended to read:
145 713.01 Definitions.-As used in this part, the term:
146 (12) "Final furnishing" means the last date that the
147 lienor furnishes labor, services, or materials. Such date may
148 not be measured by other standards, such as the issuance of a
149 certificate of occupancy or the issuance of a certificate of
150 final completion, and does not include the correction of
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151 deficiencies in the lienor's previously performed work or
152 materials supplied. With respect to rental equipment, the term
153 means the date that the rental equipment was last on the j-eb
154 site of the improvement and available for use. With respect to
155 specially fabricated materials, the term means the date that the
156 last portion of the specially fabricated materials is delivered
157 to the site of the improvement, or if any portion of the
158 specially fabricated materials is not delivered to the site of
159 the improvement by no fault of the lienor, the term means 1 year
160 after the date the lienor completes the fabrication, 1 year
161 after the date the lienor receives the last portion of the
162 specially fabricated materials needed to complete the order, or
163 the date the notice of commencement expires, whichever is later.
164 Section 3. Subsection (3) of section 713.07, Florida
165 Statutes, is amended to read:
166 713.07 Priority of liens.-
167 (3) All such liens shall have priority over any
168 conveyance, encumbranceL or demand not recorded against the real
169 property before prior to the time such lien attached as provided
170 herein, including those subordinate conveyances, encumbrances,
171 or demands that would otherwise relate back to any conveyance,
172 encumbrance, or demand recorded before the time such lien
173 attaches pursuant to the operation of any common law doctrine or
174 remedy; but any conveyance, encumbranceL or demand recorded
175 before prior to the time such lien attaches and any proceeds
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176 thereof, regardless of when disbursed, shall have priority over
177 such liens.
178 Section 4. Paragraphs (a) and (d) of subsection (1) of
179 section 713.13, Florida Statutes, are amended to read:
180 713.13 Notice of commencement.-
181 (1) (a) Except for an improvement that is exempt under
182 pursuant to s. 713.02(5), an owner or the owner's authorized
183 agent before actually commencing to improve any real property,
184 or recommencing completion of any improvement after default or
185 abandonment, whether or not a project has a payment bond
186 complying withs. 713.23, shall record a notice of commencement
187 in the clerk's office and forthwith post either a certified copy
188 thereof or a notarized statement that the notice of commencement
189 has been filed for recording along with a copy thereof. The
190 notice of commencement shall contain the following information:
191 1. A description sufficient for identification of the real
192 property to be improved. The description should include the
193 legal description of the property and also should include the
194 street address and tax folio number of the property if available
195 or, if there is no street address available, such additional
196 information as will describe the physical location of the real
197 property to be improved.
198 2. A general description of the improvement.
199 3. The name and address of the owner of record, the
200 owner's interest in the site of the ifflproveffl:ent, and the naffl:e
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201 and address of the fee siffiple titleholder, if other than such
202 owner.
203 4. The name and address of the lessee, if the A lessee WR-e
204 contracts for the improvements as -i-s- an owner as defined ins.
205 713.01 under s. 713.01(23) and ffiust be listed as the owner
206 together with a stateffient that the ownership interest is a
207 leasehold interest.
208 5.4-. The name and address of the contractor.
209 6 . .§... The name and address of the surety on the payment
210 bond under s. 713.23, if any, and the amount of such bond.
211 7.-6-. The name and address of any person making a loan for
212 the construction of the improvements.
213 8.-7-.-- The name and address within the state of a person
214 other than himself or herself who may be designated by the owner
215 as the person upon whom notices or other documents may be served
216 under this part; and service upon the person so designated
217 constitutes service upon the owner.
218 (d) A notice of commencement must be in substantially the
219 following form:
220 Permit No ..... Tax Folio No .....
221 NOTICE OF COMMENCEMENT
222 State of ... .
223 County of ... .
224 The undersigned hereby gives notice that improvement will be
225 made to certain real property, and in accordance with Chapter
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226 713, Florida Statutes, the following information is provided in
227 this Notice of Commencement.
228 1. Description of property: ... (legal description of the
229 property, and street address if available) ... .
230 2. General description of improvement: .... .
231 3.a. Owner of record: ... (name and address) ....
232 b. Owner's phone number: .... .
233 4.a. Lessee, if the lessee contracted for the
234 improvements: ... (name and address) ....
235 b. Lessee's phone number ..... owner information or Lessee
236 information if the Lessee contracted for the improvement:
237 a. Name and address: .....
238 b. Interest in property: .....
239 c. Name and address of fee simple titleholder (if
240 different from Owner listed above) : .....
241 5.a.4-.-a-. Contractor: ... (name and address) ....
242 b. Contractor's phone number: .....
243 6 . .§-. Surety (if applicable, a copy of the payment bond is
244 attached):
245 a. Name and address: .... .
246 b. Phone number: .... .
247 c. Amount of bond: $ .... .
248 7.a.-6--.a. Lender: ... (name and address) ....
249 b. Lender's phone number: .....
250 8.-+. Persons within the State of Florida designated by
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251 Owner upon whom notices or other documents may be served as
252 provided in ey Section 713.13(1) (a)8. 713.13(1) (a)7., Florida
253 Statutes:
254 a. Name and address: .....
255 b. Phone numbers of designated persons: .....
256 9.a.-8--.--a--.- In addition to himself or herself, Owner
257 designates ............ of ............ to receive a copy of the
258 Lienor's Notice as provided in Section 713.13(1) (b), Florida
259 Statutes.
260 b. Phone number of person or entity designated by
261 owner: .....
262 10.-9-.- Expiration date of notice of commencement (the
263 expiration date will be 1 year a f t e r ~ the date of recording
264 unless a different date is specified) .....
265 WARNING TO OWNER: ANY PAYMENTS MADE BY THE OWNER AFTER THE
266 EXPIRATION OF THE NOTICE OF COMMENCEMENT ARE CONSIDERED IMPROPER
267 PAYMENTS UNDER CHAPTER 713, PART I, SECTION 713.13, FLORIDA
268 STATUTES, AND CAN RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS
269 TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST BE RECORDED AND
270 POSTED ON THE JOB SITE BEFORE THE FIRST INSPECTION. IF YOU
271 INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR AN
272 ATTORNEY BEFORE COMMENCING WORK OR RECORDING YOUR NOTICE OF
273 COMMENCEMENT .
274 ... (Signature of Owner or Lessee, or Owner's or Lessee's
275 Authorized Officer/Director/Partner/Manager) ...
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276 ... (Signatory's Title/Office) ...
277 The foregoing instrument was acknowledged before me this ....
278 day of .... , (year) ... , by ... (name of person) ... as (type
279 of authority, e.g. officer, trustee, attorney in
280 fact) ... for ... (name of party on behalf of whom instrument was
2 81 executed) ....
282 (Signature of Notary Public - State of Florida) ...
283 (Print, Type, or Stamp Commissioned Name of Notary Public)
284 Personally Known .... OR Produced Identification
285 Type of Identification Produced ........... .
286 Section 5. Paragraph (a) of subsection (3) of section
287 713.18, Florida Statutes, is amended to read:
288 713.18 Manner of serving notices and other instruments.-
289 (3) (a) Service of an instrument pursuant to this section
290 is effective on the date of mailing or shipping the instrument
291 if it:
292 1. Is sent to the last address shown in the notice of
293 commencement or any amendment thereto or, in the absence of a
294 notice of commencement, to the last address shown in the
295 building permit application, or to the last known address of the
296 person to be served; and
297 2. Is returned as being "refused," "moved, not
298 forwardable," or "unclaimed," or is otherwise not delivered or
299 deliverable through no fault of the person serving the item.
300 Section 6. Subsection (8) of section 713.20, Florida
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301 Statutes, is amended to read:
302 713.20 Waiver or release of liens.-
303 (8) A provision in a lien waiver or lien release that is
304 not related to the waiver or release of lien rights as provided
305 in this section is unenforceable substantially siffiilar to the
306 forffis in subsections (4) and (§) is enforceable in accordance
307 with the terffis of the lien waiver or lien release.
308 Section 7. Paragraph (d) of subsection (1) of section
309 713.23, Florida Statutes, is amended to read:
310 713.23 Payment bond.-
311 ( 1)
312 (d) In addition, a lienor who has not received payment for
313 furnishing his or her labor, services, or materials must, as a
314 condition precedent to recovery under the bond, serve a written
315 notice of nonpayment on -t-e- the contractor and a copy on the
316 surety. The notice must be under oath and served during the
317 progress of the work or thereafter, but may not be served later
318 than 90 days after the final furnishing of labor, services, or
319 materials by the lienor, or, with respect to rental equipment,
320 later than 90 days after the date the rental equipment was on
321 the job site and available for use. A notice of nonpayment that
322 includes sums for retainage must specify the portion of the
323 amount claimed for retainage. The required notice satisfies this
324 condition precedent with respect to the payment described in the
325 notice of nonpayment, including unpaid finance charges due under
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326 the lienor's contract, and with respect to any other payments
327 which become due to the lienor after the date of the notice of
328 nonpayment. The time period for serving a notice of nonpayment
329 is shall be measured from the last day of furnishing labor,
330 services, or materials by the lienor and may not be measured by
331 other standards, such as the issuance of a certificate of
332 occupancy or the issuance of a certificate of substantial
333 completion. The failure of a lienor to receive retainage sums
334 not in excess of 10 percent of the value of labor, services, or
335 materials furnished by the lienor is not considered a nonpayment
336 requiring the service of the notice provided under this
337 paragraph. If the payment bond is not recorded before
338 commencement of construction, the time period for the lienor to
339 serve a notice of nonpayment may at the option of the lienor be
340 calculated from the date specified in this section or the date
341 the lienor is served a copy of the bond. However, the limitation
342 period for commencement of an action on the payment bond as
343 established in paragraph (e) may not be expanded. The negligent
344 inclusion or omission of any information in the notice of
345 nonpayment that has not prejudiced the contractor or surety does
346 not constitute a default that operates to defeat an otherwise
347 valid bond claim. A lienor who serves a fraudulent notice of
348 nonpayment forfeits his or her rights under the bond. A notice
349 of nonpayment is fraudulent if the lienor has willfully
350 exaggerated the amount unpaid, willfully included a claim for
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351 work not performed or materials not furnished for the subject
352 improvement, or prepared the notice with such willful and gross
353 negligence as to amount to a willful exaggeration. However, a
354 minor mistake or error in a notice of nonpayment, or a good
355 faith dispute as to the amount unpaid, does not constitute a
356 willful exaggeration that operates to defeat an otherwise valid
357 claim against the bond. The service of a fraudulent notice of
358 nonpayment is a complete defense to the lienor's claim against
359 the bond. The notice under this paragraph must include the
360 following information, current as of the date of the notice, and
361 must be in substantially the following form:
362 NOTICE OF NONPAYMENT
363 To ... (name of contractor and address) ...
364 ... (name of surety and address) ...
365 The undersigned lienor notifies you that:
366 1. The lienor has furnished ... (describe labor, services,
367 or materials) ... for the improvement of the real property
368 identified as ... (property description) .... The corresponding
369 amount unpaid to date is$ .... , of which$ .... is unpaid
370 retainage.
371 2. The lienor has been paid to date the amount of$ ....
372 for previously furnishing ... (describe labor, services, or
373 materials) ... for this improvement.
374 3. The lienor expects to furnish ... (describe labor,
375 services, or materials) ... for this improvement in the future
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376 (if known), and the corresponding amount expected to become due
377 is $.... ( if known) .
378 I declare that I have read the foregoing Notice of Nonpayment
379 and that the facts stated in it are true to the best of my
380 knowledge and belief.
381 DATED on ............ ,
382 ... (signature and address of lienor) ...
383 STATE OF FLORIDA
384 COUNTY OF ....... .
385 The foregoing instrument was sworn to (or affirmed) and
38 6 subscribed before me this . . . . day of .... , ... (year) ... , by
387 (name of signatory) ....
388 (Signature of Notary Public - State of Florida) ...
389 (Print, Type, or Stamp Commissioned Name of Notary
3 90 Public) ...
391 Personally Known ........ OR Produced Identification ....... .
392 Type of Identification Produced . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
393 Section 8. Subsection (5) of section 713.235, Florida
394 Statutes, is amended to read:
395 713.235 Waivers of right to claim against payment bond;
396 forms.-
397 (5) A provision of a waiver or release that is not related
398 to the waiver or release of a claim against the payment bond as
399 provided in this section is unenforceable substantially sifflilar
400 to the forffis in this section is enforceable in accordance with
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401 its terms.
402 Section 9. This act shall take effect July 1, 2020.
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HB 283 by Rep. Toledo
Liens and Bonds
AMENDMENT SUMMARY
December 11, 2019
Amendment 1 by Rep. Toledo (Strike-all amendment):
The strike-all amendment differs from the original bill in the following ways:
• Provides that a subcontractor may not be required to sign a waiver or release of lien that
is different from the form provided in statute in exchange for payment;
• Prohibits any provisions in a waiver or release of lien that are not related to the waiver or
release unless the subcontractor has agreed to those provisions in their initial contract.
• Provides that the statutory requirements for waivers of right to claim against a bond for
public construction projects also apply to DOT construction projects.
• Provides that licensed building and general contractors who provide construction
management services and their subcontractors may record a construction lien.
• Provides that construction liens may be filed against a lease when a construction project
is for a private entity leasing public property.
• Provides that a lienor may file one claim of lien for multiple contracts with the same
owner.
• Removes the use of the term "owner of record" from the notice of commencement
thereby maintaining current law.
• Provides that a termination of a notice of commencement does not take effect until each
contractor or subcontractor has been paid and has received notice of the termination.
• Provides that an owner must provide a copy of the notice of termination to a lienor who
timely serves a notice to owner after the notice of termination has taken effect.
• Allows a lien to be transferred to a payment bond obtained by a subcontractor if the
lienor is working for the subcontractor.
• Increases the amount needed to obtain a bond in order to transfer a lien to the bond.
• Provides that a prevailing party is entitled to attorney's fees in actions to enforce liens
that have been transferred to bonds.
The remainder of the bill's provisions are unchanged by the strike-all amendment. The bill:
• Clarifies the definition of "final furnishing" related to specially fabricated materials.
• Provides that construction liens have priority over debts that are recorded after the
construction lien is recorded, even if such debts relate back to a debt that was recorded
before the construction lien attached pursuant to the operation of "any common law
doctrine or remedy."
• Removes the requirement that a notice of commencement must include:
o The owner or lessee's interest in the property; and
o A statement that the ownership interest is a leasehold interest if a lessee
contracted for the work.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 283 (2020)
Amendment No. 1.
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/0 OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Business & Professions
2 Subcommittee
3 Representative Toledo offered the following:
4
5 .Amendment (with title amendment)
6 Remove everything after the enacting clause and insert:
7 Section 1. Paragraphs (a), (d), and (f) of subsection (2)
8 of section 255.05, Florida Statutes, are amended to read:
9 255.05 Bond of contractor constructing public buildings;
10 form; action by claimants.-
11 (2) (a)l. If a claimant is no longer furnishing labor,
12 services, or materials on a project, a contractor or the
13 contractor's agent or attorney may elect to shorten the time
14 within which an action to enforce any claim against a payment
15 bond must be commenced by recording in the clerk's office a
16 notice in substantially the following form:
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 283 (2020)
Amendment No. 1.
17 NOTICE OF CONTEST OF CLAIM
18 AGAINST PAYMENT BOND
19 To: ... (Name and address of claimant) ...
20 You are notified that the undersigned contests your notice
21 of nonpayment, dated ............ , ........ , and served on the
22 undersigned on ............ , ........ , and that the time within
23 which you may file suit to enforce your claim is limited to 60
24 days after the date of service of this notice.
25 DATED on ............ ,
26 Signed: ... (Contractor or Attorney) ...
27 The claim of a claimant upon whom such notice is served and who
28 fails to institute a suit to enforce his or her claim against
29 the payment bond within 60 days after service of such notice is
30 extinguished automatically. The contractor or the contractor's
31 attorney shall serve a copy of the notice of contest on 4::-e the
32 claimant at the address shown in the notice of nonpayment or
33 most recent amendment thereto and shall certify to such service
34 on the face of the notice and record the notice.
35 2. A claimant, except a laborer, who is not in privity
36 with the contractor shall, before commencing or not later than
37 45 days after commencing to furnish labor, services, or
38 materials for the prosecution of the work, serve the contractor
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Bill No. HB 283 (2020)
Amendment No. 1.
39 with a written notice that he or she intends to look to the bond
40 for protection. A claimant who is not in privity with the
41 contractor and who has not received payment for furnishing his
42 or her labor, services, or materials shall serve a written
43 notice of nonpayment on the contractorL and a copy of the notice
44 on the surety. The notice of nonpayment shall be under oath and
45 served during the progress of the work or thereafter but may not
46 be served earlier than 45 days after the first furnishing of
47 labor, services, or materials by the claimant or later than 90
48 days after the final furnishing of the labor, services, or
49 materials by the claimant or, with respect to rental equipment,
50 later than 90 days after the date that the rental equipment was
51 last on the job site available for use. Any notice of nonpayment
52 served by a claimant who is not in privity with the contractor
53 which includes sums for retainage must specify the portion of
54 the amount claimed for retainage. An action for the labor,
55 services, or materials may not be instituted against the
56 contractor or the surety unless the notice to the contractor and
57 notice of nonpayment have been served, if required by this
58 section. Notices required or permitted under this section must
59 be served in accordance withs. 713.18. A claimant may not waive
60 in advance his or her right to bring an action under the bond
61 against the surety. In any action brought to enforce a claim
62 against a payment bond under this section, the prevailing party
63 is entitled to recover a reasonable fee for the services of his
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Bill No. HB 283 (2020)
Amendment No. 1.
64 or her attorney for trial and appeal or for arbitration, in an
65 amount to be determined by the court, which fee must be taxed as
66 part of the prevailing party's costs, as allowed in equitable
67 actions. The time periods for service of a notice of nonpayment
68 or for bringing an action against a contractor or a surety are
69 shall be measured from the last day of furnishing labor,
70 services, or materials by the claimant and may not be measured
71 by other standards, such as the issuance of a certificate of
72 occupancy or the issuance of a certificate of substantial
73 completion. The negligent inclusion or omission of any
74 information in the notice of nonpayment that has not prejudiced
75 the contractor or surety does not constitute a default that
76 operat_es to defeat an otherwise valid bond claim. A claimant who
77 serves a fraudulent notice of nonpayment forfeits his or her
78 rights under the bond. A notice of nonpayment is fraudulent if
79 the claimant has willfully exaggerated the amount unpaid,
80 willfully included a claim for work not performed or materials
81 not furnished for the subject improvement, or prepared the
82 notice with such willful and gross negligence as to amount to a
83 willful exaggeration. However, a minor mistake or error in a
84 notice of nonpayment, or a good faith dispute as to the amount
85 unpaid, does not constitute a willful exaggeration that operates
86 to defeat an otherwise valid claim against the bond. The service
87 of a fraudulent notice of nonpayment is a complete defense to
88 the claimant's claim against the bond. The notice of nonpayment
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Bill No. HB 283 (2020)
Amendment No. 1.
89 under this subparagraph must include the following information,
90 current as of the date of the notice, and must be in
91 substantially the following form:
92 NOTICE OF NONPAYMENT
93 To: ... (name of contractor and address) ...
94 ... (name of surety and address) ...
95 The undersigned claimant notifies you that:
96 1. Claimant has furnished ... (describe labor, services, or
97 materials) ... for the improvement of the real property
98 identified as ... (property description) .... The corresponding
99 amount unpaid to date is$ .... , of which$ .... is unpaid
100 retainage.
101 2. Claimant has been paid to date the amount of$ .... for
102 previously furnishing ... (describe labor, services, or
103 materials) ... for this improvement.
104 3. Claimant expects to furnish ... (describe labor,
105 services, or materials) ... for this improvement in the future
106 (if known), and the corresponding amount expected to become due
107 is $. . . . ( if known) .
108 I declare that I have read the foregoing Notice of Nonpayment
109 and that the facts stated in it are true to the best of my
110 knowledge and belief.
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Bill No. HB 283 (2020)
Amendment No. 1.
111 DATED on ............ ,
112 ... (signature and address of claimant) ...
113 STATE OF FLORIDA
114 COUNTY OF ....... .
115 The foregoing instrument was sworn to (or affirmed) and
116 subscribed before me this .... day of .... , ... (year) ... , by
117 ... (name of signatory) ... .
118 ... (Signature of Notary Public - State of Florida) ...
119 ... (Print, Type, or Stamp Commissioned Name of Notary
120 Public) .. .
121 Personally Known ........ OR Produced Identification ....... .
122 Type of Identification Produced . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
123 (d) A person may not require a claimant to furnish a
124 waiver that is different from the forms in paragraphs (b) and
125 (c) in exchange for or to induce a progress payment or final
126 payment, unless the claimant has entered into a direct contract
127 which requires the claimant to furnish a form that is different
128 from the forms in paragraphs (b) and (c).
129 (f) Any provisions in a waiver that are not related to the
130 waiver of right to claim against a payment bond as provided in
131 this section are unenforceable, unless the claimant has
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Amendment No. 1.
132 otherwise agreed to those provisions in the claimant's direct
133 contract is not substantially similar to the forms in this
134 subsection is enforceable in accordance with its terms.
135 Section 2. Paragraph (c) of subsection (1) of section
136 337.18, Florida Statutes, is amended to read:
137 337.18 Surety bonds for construction or maintenance
138 contracts; requirement with respect to contract award; bond
139 requirements; defaults; damage assessments.-
140 (1)
141 (c) A claimant, except a laborer, who is not in privity
142 with the contractor shall, before commencing or not later than
143 90 days after commencing to furnish labor, materials, or
144 supplies for the prosecution of the work, furnish the contractor
145 with a notice that he or she intends to look to the bond for
146 protection. A claimant who is not in privity with the contractor
147 and who has not received payment for his or her labor,
148 materials, or supplies shall deliver to the contractor and to
149 the surety written notice of the performance of the labor or
150 delivery of the materials or supplies and of the nonpayment. The
151 notice of nonpayment may be served at any time during the
152 progress of the work or thereafter but not before 45 days after
153 the first furnishing of labor, services, or materials, and not
154 later than 90 days after the final furnishing of the labor,
155 services, or materials by the claimant or, with respect to
156 rental equipment, not later than 90 days after the date that the
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Amendment No. 1.
157 rental equipment was last on the job site available for use. An
158 action by a claimant, except a laborer, who is not in privity
159 with the contractor for the labor, materials, or supplies may
160 not be instituted against the contractor or the surety unless
161 both notices have been given. Notices required or permitted
162 under this section may be served in any manner provided ins.
163 713.18, and provisions for the waiver and release of claims
164 against the payment bond contained ins. 255.05(2) shall apply
165 to all contracts under this section.
166 Section 3. Subsections ( 8) , ( 12) , and ( 2 6) of section
167 713.01, Florida Statutes, are amended to read:
168 713.01 Definitions.-As used in this part, the term:
169 (8) "Contractor" means a person other than a materialman
170 or laborer who enters into a contract with the owner of real
171 property for improving it, or who takes over from a contractor
172 as so defined the entire remaining work under such contract. The
173 term "contractor" includes an architect, landscape architect, or
174 engineer who improves real property pursuant to a design-build
175 contract authorized bys. 489.103(16). The term also includes a
176 licensed building or general contractor as defined in paragraphs
177 489.105(3) (a) and (b) who provides construction management
178 services, which include responsibility for scheduling and
179 coordination in both preconstruction and construction phases and
180 for the successful, timely, and economical completion of the
181 construction project, or who provides program management
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 283 (2020)
Amendment No. 1.
182 services, which include responsibility for schedule control,
183 cost control, and coordination in providing or procuring
184 planning, design, and construction.
18 5 ( 12) "Final furnishing" means the last date that the
186 lienor furnishes labor, services, or materials. Such date may
187 not be measured by other standards, such as the issuance of a
188 certificate of occupancy or the issuance of a certificate of
189 final completion, and does not include the correction of
190 deficiencies in the lienor's previously performed work or
191 materials supplied. With respect to rental equipment, the term
192 means the date that the rental equipment was last on the j"-eb
193 site of the improvement and available for use. With respect to
194 specially fabricated materials, the term means the date that the
195 last portion of the specially fabricated materials is delivered
196 to the site of the improvement, or if any portion of the
197 specially fabricated materials is not delivered to the site of
198 the improvement by no fault of the lienor, the term means 1 year
199 after the date the lienor completes the fabrication, 1 year
200 after the date the lienor receives the last portion of the
201 specially fabricated materials needed to complete the order, or
202 the date the notice of commencement expires, whichever is later.
203 (26) "Real property" means the land that is improved and
204 the improvements thereon, including fixtures, except any such
205 property owned by the state or any county, municipality, school
206 board, or governmental agency, commission, or political
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Bill No. HB 283 (2020)
Amendment No. 1.
207 subdivision, provided, however, that a private leasehold
208 interest in such government-owned property which is improved and
209 the leasehold improvements shall be considered real property for
210 purposes of this part.
211 Section 4. Subsection (3) of section 713.07, Florida
212 Statutes, is amended to read:
213 713.07 Priority of liens.-
214 (3) All such liens shall have priority over any
215 conveyance, encumbrance or demand not recorded against the real
216 property before prior to the time such lien attached as provided
217 herein, including those subordinate conveyances, encumbrances,
218 or demands that would otherwise relate back to any conveyance,
219 encumbrance, or demand recorded before the time such lien
220 attaches pursuant to the operation of any common law doctrine or
221 remedy; but any conveyance, encumbrance~ or demand recorded
222 before prior to the time such lien attaches and any proceeds
223 thereof, regardless of when disbursed, shall have priority over
224 such liens.
225 Section 5. Section 713.09, Florida Statutes, is amended to
226 read:
227 713.09 Single claim of lien.-A lienor may is required to
228 record only one claim of lien covering his or her entire demand
229 against the real property when the amount demanded is for labor
230 or services or material furnished for more than one improvement
231 under the same direct contract or multiple direct contracts. The
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Bill No. HB 283 (2020)
Amendment No. 1.
232 single claim of lien is sufficient even though the improvement
233 is for one or more improvements located on separate lots,
234 parcels, or tracts of land. If materials to be used on one or
235 more improvements on separate lots, parcels, or tracts of land
236 under one direct contract are delivered by a lienor to a place
237 designated by the person with whom the materialman contracted,
238 other than the site of the improvement, the delivery to the
239 place designated is prima facie evidence of delivery to the site
240 of the improvement and incorporation in the improvement. The
241 single claim of lien may be limited to a part of multiple lots,
242 parcels, or tracts of land and their improvements or may cover
243 all of the lots, parcels, or tracts of land and improvements. If
244 ~ In each claim of lien under this section is for multiple
245 direct contracts, the owner under the direct contract~ must be
246 the same person for all lots, parcels, or tracts of land against
247 which a single claim of lien is recorded.
248 Section 6. Paragraphs (a) and (d) of subsection (1) of
249 section 713.13, Florida Statutes, are amended to read:
250 713.13 Notice of commencement.-
251 ( 1) ( a) Except for an improvement that is exempt under
252 pursuant to s. 713.02(5), an owner or the owner's authorized
253 agent before actually commencing to improve any real property,
254 or recommencing completion of any improvement after default or
255 abandonment, whether or not a project has a payment bond
256 complying withs. 713.23, shall record a notice of commencement
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Bill No. HB 283 (2020)
Amendment No. 1.
257 in the clerk's office and forthwith post either a certified copy
258 thereof or a notarized statement that the notice of commencement
259 has been filed for recording along with a copy thereof. The
260 notice of commencement shall contain the following information:
261 1. A description sufficient for identification of the real
262 property to be improved. The description should include the
263 legal description of the property and also should include the
264 street address and tax folio number of the property if available
265 or, if there is no street address available, such additional
266 information as will describe the physical location of the real
267 property to be improved.
268 2. A general description of the improvement.
269 3. The name and address of the owner, the owner's interest
270 in the site of the improvement, and the name and address of the
271 fee simple titleholder, if other than such owner.
272 4. The name and address of the lessee, if the A lessee wl=re
273 contracts for the improvements as 4:-s- an owner as defined ins.
274 713.01 under s. 713.01(23) and must be listed as the owner
275 together with a statement that the ownership interest is a
276 leasehold interest.
277 5. 4-;- The name and address of the contractor.
278 6. .§..... The name and address of the surety on the payment
279 bond under s. 713.23, if any, and the amount of such bond.
280 6. The name and address of any person making a loan for
281 the construction of the improvements.
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Bill No. HB 283 (2020)
Amendment No. 1.
282 8. :::/---:- The name and address within the state of a person
283 other than himself or herself who may be designated by the owner
284 as the person upon whom notices or other documents may be served
285 under this part; and service upon the person so designated
286 constitutes service upon the owner.
287 (d) A notice of commencement must be in substantially the
288 following form:
289 Permit No ..... Tax Folio No .....
290 NOTICE OF COMMENCEMENT
291 State of ... .
292 County of ... .
293 The undersigned hereby gives notice that improvement will be
294 made to certain real property, and in accordance with Chapter
295 713, Florida Statutes, the following information is provided in
296 this Notice of Commencement.
297 1. Description of property: ... (legal description of the
298 property, and street address if available) ... .
299 2. General description of improvement: .... .
300 3.a. Owner: ... (name and address) ....
301 b. Owner's phone number: .....
302 4.a. Lessee, if the lessee contracted for the improvements:
303 (name and address) ....
304 b. Lessee's phone number: ..... Owner inforffiation or Lessee
305 inforffiation if the Lessee contracted for the iHtproveffient:
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Bill No. HB 283 (2020)
Amendment No. 1.
306 a. Name and address: .... .
307 b. Interest in property: .... .
308 c. Name and address of fee simple titleholder (if
309 different from Owner listed above): .....
310 5.a. ~ Contractor: ... (name and address) ....
311 b. Contractor's phone number: .....
312 6. ~ Surety (if applicable, a copy of the payment bond is
313 attached):
314 a. Name and address: .... .
315 b. Phone number: .... .
316 c. Amount of bond: $ .... .
317 7.a. -6--.--a-. Lender: ... (name and address) ....
318 b. Lender's phone number: .....
319 8. :::/---;- Persons within the State of Florida designated by
320 Owner upon whom notices or other documents may be served as
321 provided in ey Section 713.13(1) (a)8. 713.13(1) (a)7., Florida
322 Statutes:
323 a. Name and address: .....
324 b. Phone numbers of designated persons: .....
325 9.a. -8-.--a-. In addition to himself or herself, Owner
326 designates ............ of ............ to receive a copy of the
327 Lienor' s Notice as provided in Section 713. 13 ( 1) (b), Florida
328 Statutes.
329 b. Phone number of person or entity designated by
330 owner: .....
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Bill No. HB 283 (2020)
Amendment No. 1.
331 10. -9-. Expiration date of notice of commencement (the
332 expiration date will be 1 year after £-rfffl the date of recording
333 unless a different date is specified) .....
334 WARNING TO OWNER: ANY PAYMENTS MADE BY THE OWNER AFTER THE
335 EXPIRATION OF THE NOTICE OF COMMENCEMENT ARE CONSIDERED IMPROPER
336 PAYMENTS UNDER CHAPTER 713, PART I, SECTION 713.13, FLORIDA
337 STATUTES, AND CAN RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS
338 TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST BE RECORDED AND
339 POSTED ON THE JOB SITE BEFORE THE FIRST INSPECTION. IF YOU
340 INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR AN
341 ATTORNEY BEFORE COMMENCING WORK OR RECORDING YOUR NOTICE OF
3 42 COMMENCEMENT.
343 ... (Signature of Owner or Lessee, or Owner's or Lessee's
344 Authorized Officer/Director/Partner/Manager) ...
345 ... (Signatory's Title/Office) ...
346 The foregoing instrument was acknowledged before me this ... .
347 day of .... , ... (year) ... , by ... (name of person) ... as ... (type
348 of authority, . . . e.g. officer, trustee, attorney in fact) ...
349 for ... (name of party on behalf of whom instrument was
350 executed) ....
351 ... (Signature of Notary Public - State of Florida) ...
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Bill No. HB 283 (2020)
Amendment No. 1.
352 (Print, Type, or Stamp Commissioned Name of Notary Public) ...
353 Personally Known .... OR Produced Identification
354 Type of Identification Produced ........... .
355 Section 7. Section 713.132, Florida Statutes, is amended
356 to read:
357 713.132 Notice of termination.-
358 (1) An owner may terminate the period of effectiveness of
359 a notice of commencement by executing, swearing to, and
360 recording a notice of termination that contains:
361 (a) The same information as the notice of commencement;
362 (b) The recording office document with the book and page
363 reference numbers and date of the notice of commencement;
364 (c) A statement of the date as of which the notice of
365 commencement is terminated, which date may not be earlier than
366 30 days after the notice of termination is recorded;
367 (d) A statement specifying that the notice applies to all
368 the real property subject to the notice of commencement or
369 specifying the portion of such real property to which it
370 applies;
371 (e) A statement that all lienors have been paid in full;
372 and
373 (f) A statement that the owner has, before recording the
374 notice of termination, served a copy of the notice of
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Bill No. HB 283 (2020)
Amendment No. 1.
375 termination on the contractor and on each lienor who has a
376 direct contract with the owner or who has timely served a notice
377 to owner, and a statement that the owner will serve a copy of
378 the notice of termination on each lienor who timely serves a
379 notice to owner after the notice of termination has been
380 recorded. The owner is not required to serve a copy of the
381 notice of termination on any lienor who has executed a waiver
382 and release of lien upon final payment in accordance withs.
383 713.20.
384 (2) An owner has the right to rely on a contractor's
385 affidavit given under s. 713.06(3) (d), except with respect to
386 lienors who have already given notice, in connection with the
387 execution, swearing to, and recording of a notice of
388 termination. However, the notice of termination must be
389 accompanied by the contractor's affidavit.
390 (3) An owner may ftO-t- record a notice of termination at any
391 time after except after cofflpletion of construction, or after
392 construction ceases before cofflpletion and all lienors have been
393 paid in full or pro rata in accordance withs. 713.06(4).
394 J...il If an owner or a contractor, by fraud or collusion,
395 knowingly makes any fraudulent statement or affidavit in a
396 notice of termination or any accompanying affidavit, the owner
397 and the contractor, or either of them, as the case ffiay be, is
398 liable to any lienor who suffers damages as a result of the
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 283 (2020)
Amendment No. 1.
399 filing of the fraudulent notice of termination; and any such
400 lienor has a right of action for damages occasioned thereby.
401 ~+4+ A notice of termination shall be served prior to
402 recording, on each lienor who has a direct contract with the
403 owner and one each lienor who has timely and properly served a
404 notice to owner in accordance with this part. A notice of
405 termination must be recorded in the public records of the county
406 where the project is located. If properly served prior to
407 recording in accordance with this subsection, the notice of
408 commencement terminates 30 days after the notice of termination
409 is recorded in the public records is effective to terminate the
410 notice of commencement at the later of 30 days after recording
411 of the notice of termination or such later -t-h-e date stated in
412 the notice of termination as the date on which the notice of
413 commencement is terminated. However, if a lienor, who began work
414 under the notice of commencement before its termination, lacks a
415 direct contract with the owner, and timely serves his or her
416 notice to owner after the notice of termination has been
417 recorded, the owner must serve a copy of the notice of
418 termination upon such lienor, and the termination of the notice
419 of commencement as to that lienor is effective 30 days after
420 service of the notice of termination, if the notice of
421 termination has been served pursuant to paragraph (1) (f) on the
422 contractor and on each lienor who has a direct contract with the
423 owner or who has served a notice to owner.
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 283 (2020)
Amendment No. 1.
424 Section 8. Paragraph (a) of subsection (3) of section
425 713.18, Florida Statutes, is amended to read:
426 713.18 Manner of serving notices and other instruments.-
427 (3) (a) Service of an instrument pursuant to this section
428 is effective on the date of mailing or shipping the instrument
429 if it:
430 1. Is sent to the last address shown in the notice of
431 commencement or any amendment thereto or, in the absence of a
432 notice of commencement, to the last address shown in the
433 building permit application, or to the last known address of the
434 person to be served; and
435 2. Is returned as being "refused," "moved, not
43 6 forwardable," or "unclaimed," or is otherwise not delivered or
437 deliverable through no fault of the person serving the item.
438 Section 9. Subsections (6) and (8) of section 713.20,
439 Florida Statutes, are amended to read:
440 713.20 Waiver or release of liens.-
441 (6) A person may not require a lienor to furnish a lien
442 waiver or release of lien that is different from the forms in
443 subsection (4) or subsection (5) in exchange for or to induce a
444 progress payment or final payment, unless the lienor has entered
445 into a direct contract which requires the lienor to furnish a
446 form that is different from the forms in subsection (4) or
447 subsection (5).
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Bill No. HB 283 (2020)
Amendment No. 1.
448 (8) Any provisions in a lien waiver or lien release that
449 are not related to the waiver or release of lien rights as
450 provided in this section are unenforceable, unless the lienor
451 has otherwise agreed to those provisions in the lienor's direct
452 contract is not substantially similar to the forms in
453 subsections (4) and (5) is enforceable in accordance with the
454 terms of the lien waiver or lien release.
455 Section 10. Paragraph (d) of subsection (1) of section
456 713.23, Florida Statutes, is amended to read:
457 713.23 Payment bond.-
458 ( 1)
459 (d) In addition, a lienor who has not received payment for
460 furnishing his or her labor, services, or materials must, as a
461 condition precedent to recovery under the bond, serve a written
462 notice of nonpayment on -t-e the contractorL and a copy of the
463 notice on the surety. The notice must be under oath and served
464 during the progress of the work or thereafter, but may not be
465 served later than 90 days after the final furnishing of labor,
466 services, or materials by the lienor, or, with respect to rental
467 equipment, later than 90 days after the date the rental
468 equipment was on the job site and available for use. A notice of
469 nonpayment that includes sums for retainage must specify the
470 portion of the amount claimed for retainage. The required notice
471 satisfies this condition precedent with respect to the payment
472 described in the notice of nonpayment, including unpaid finance
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Bill No. HB 283 (2020)
Amendment No. 1.
473 charges due under the lienor's contract, and with respect to any
474 other payments which become due to the lienor after the date of
475 the notice of nonpayment. The time period for serving a notice
476 of nonpayment is shall be measured from the last day of
477 furnishing labor, services, or materials by the lienor and may
478 not be measured by other standards, such as the issuance of a
479 certificate of occupancy or the issuance of a certificate of
480 substantial completion. The failure of a lienor to receive
481 retainage sums not in excess of 10 percent of the value of
482 labor, services, or materials furnished by the lienor is not
483 considered a nonpayment requiring the service of the notice
484 provided under this paragraph. If the payment bond is not
485 recorded before commencement of construction, the time period
486 for the lienor to serve a notice of nonpayment may at the option
487 of the lienor be calculated from the date specified in this
488 section or the date the lienor is served a copy of the bond.
489 However, the limitation period for commencement of an action on
490 the payment bond as established in paragraph (e) may not be
491 expanded. The negligent inclusion or omission of any information
492 in the notice of nonpayment that has not prejudiced the
493 contractor or surety does not constitute a default that operates
494 to defeat an otherwise valid bond claim. A lienor who serves a
495 fraudulent notice of nonpayment forfeits his or her rights under
496 the bond. A notice of nonpayment is fraudulent if the lienor has
497 willfully exaggerated the amount unpaid, willfully included a
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Bill No. HB 283 (2020)
Amendment No. 1.
498 claim for work not performed or materials not furnished for the
499 subject improvement, or prepared the notice with such willful
500 and gross negligence as to amount to a willful exaggeration.
501 However, a minor mistake or error in a notice of nonpayment, or
502 a good faith dispute as to the amount unpaid, does not
503 constitute a willful exaggeration that operates to defeat an
504 otherwise valid claim against the bond. The service of a
505 fraudulent notice of nonpayment is a complete defense to the
506 lienor's claim against the bond. The notice under this paragraph
507 must include the following information, current as of the date
508 of the notice, and must be in substantially the following form:
509 NOTICE OF NONPAYMENT
510 To ... (name of contractor and address) ...
511 ... (name of surety and address) ...
512 The undersigned lienor notifies you that:
513 1. The lienor has furnished ... (describe labor, services,
514 or materials) ... for the improvement of the real property
515 identified as ... (property description) .... The corresponding
516 amount unpaid to date is$ .... , of which$ .... is unpaid
517 retainage.
518 2. The lienor has been paid to date the amount of$ ....
519 for previously furnishing ... (describe labor, services, or
520 materials) ... for this improvement.
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 283 (2020)
Amendment No. 1.
521 3. The lienor expects to furnish ... (describe labor,
522 services, or materials) ... for this improvement in the future
523 (if known), and the corresponding amount expected to become due
524 is $.... (if known).
525 I declare that I have read the foregoing Notice of Nonpayment
526 and that the facts stated in it are true to the best of my
527 knowledge and belief.
528 DATED on ............ ,
529 ... (signature and address of lienor) ...
530 STATE OF FLORIDA
531 COUNTY OF ....... .
532 The foregoing instrument was sworn to (or affirmed) and
533 subscribed before me this .... day of .... , ... (year) ... , by
534 ... (name of signatory) ....
535 ... (Signature of Notary Public - State of Florida) ...
536 ... (Print, Type, or Stamp Commissioned Name of Notary
537 Public) .. .
538 Personally Known ........ OR Produced Identification ....... .
539 Type of Identification Produced ................................ .
540 Section 11. Subsections (3) and (5) of section 713.235,
541 Florida Statutes, are amended to read:
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Bill No. HB 283 (2020)
Amendment No. 1.
542 713.235 Waivers of right to claim against payment bond;
543 forms.-
544 (3) A person may not require a claimant to furnish a
545 waiver that is different from the forms in subsections (1) and
546 (2) in exchange for or to induce a progress payment or final
547 payment, unless the claimant has entered into a direct contract
548 which requires the claimant to furnish a form that is different
549 from the forms in subsections (1) and (2).
550 (5) Any provisions in a waiver that are not related to the
551 waiver of a claim against the payment bond as provided in this
552 section are unenforceable, unless the claimant has otherwise
553 agreed to those provisions in the claimant's direct contract ±-s-
554 not substantially similar to the forms in this section is
555 enforceable in accordance with its terms.
556 Section 12. Subsection (1) of section 713.24, Florida
557 Statutes, is amended to read:
558 713.24 Transfer of liens to security.-
559 (1) Any lien claimed under this part may be transferred,
560 by any person having an interest in the real property upon which
561 the lien is imposed or the contract under which the lien is
562 claimed, from such real property to other security by doing one
563 of the following either:
564 (a) Depositing in the clerk's office a sum of money~-,--e-r
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Bill No. HB 283 (2020)
Amendment No. 1.
565 (b)l..:_ Recording Filing in the clerk's office a bond
566 executed as surety by a surety insurer licensed to do business
567 in this state, or
568 2. Recording in the clerk's office a bond executed as
569 surety by a surety insurer licensed to do business in this state
570 which was furnished by a subcontractor under whose subcontract
571 the lienor's claim emanates, which bond must be recorded and
572 served with a notice of bond in the same manner as a payment
573 bond furnished pursuant to s. 713.23(2). For purposes of this
574 subparagraph, the subcontract payment bond must have been
575 furnished at the time the subcontractor's work commenced and
576 before the claim of lien was recorded. The subcontract payment
577 bond may not be used to transfer a lien of the contractor or the
578 subcontractor that is the principal on the subcontract payment
579 bond. Any provision in the subcontract payment bond which
580 restricts the classes of persons who are protected by the
581 subcontract payment bond, which restricts the venue of any
582 proceeding relating to the subcontract payment bond, which
583 limits or expands the effective duration of the subcontract
584 payment bond, or which includes conditions precedent to the
585 enforcement of a claim against the subcontract payment bond
586 beyond those provided in this part is unenforceable.
587
588 Such deposit or bond shall either to be in an amount at least
589 equal to the amount demanded in such claim of lien, plus
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Bill No. HB 283 (2020)
Amendment No. 1.
590 interest thereon at the legal rate for 3 years, plus $1,000 or
591 35 -2-§. percent of the amount demanded in the claim of lien,
592 whichever is greater, to apply on any attorney's fees and court
593 costs that may be taxed in any proceeding to enforce said lien.
594 Such deposit or bond shall be conditioned to pay any judgment or
595 decree which may be rendered for the satisfaction of the lien
596 for which such claim of lien was recorded. Upon making such
597 deposit or filing such bond, the clerk shall make and record a
598 certificate showing the transfer of the lien from the real
599 property to the security and shall mail a copy thereof by
600 registered or certified mail to the lienor named in the claim of
601 lien so transferred, at the address stated therein. Upon filing
602 the certificate of transfer, the real property shall thereupon
603 be released from the lien claimed, and such lien shall be
604 transferred to said security. In the absence of allegations of
605 privity between the lienor and the owner, and subject to any
606 order of the court increasing the amount required for the lien
607 transfer deposit or bond, no other judgment or decree to pay
608 money may be entered by the court against the owner. The clerk
609 shall be entitled to a service charge for making and serving the
610 certificate, in the amount of up to $20, from which the clerk
611 shall remit $5 to the Department of Revenue for deposit into the
612 General Revenue Fund. If the transaction involves the transfer
613 of multiple liens, an additional charge of up to $10 for each
614 additional lien shall be charged, from which the clerk shall
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Bill No. HB 283 (2020)
Amendment No. 1.
615 remit $2.50 to the Department of Revenue for deposit into the
616 General Revenue Fund. For recording the certificate and
617 approving the bond, the clerk shall receive her or his usual
618 statutory service charges as prescribed ins. 28.24. Any number
619 of liens may be transferred to one such security.
620 Section 13. Section 713.29, Florida Statutes, is amended
621 to read:
622 713.29 Attorney's fees.-In any action brought to enforce a
623 lien, including a lien that has been transferred to security, or
624 to enforce a claim against a bond under this part, the
625 prevailing party is entitled to recover a reasonable fee for the
626 services of her or his attorney for trial and appeal or for
627 arbitration, in an amount to be determined by the court, which
628 fee must be taxed as part of the prevailing party's costs, as
629 allowed in equitable actions.
630 Section 14. This act shall take effect July 1, 2020.
631
632
633
634 TITLE AMENDMENT
635 Remove everything before the enacting clause and insert:
636 An act relating to liens and bonds; amending s.
637 255.05, F.S.; requiring that a copy of a notice of
638 nonpayment be served on the surety; providing that
639 certain waivers and releases are unenforceable;
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Bill No. HB 283 (2020)
Amendment No. 1.
640 amending s. 337.18, F.S.; providing that certain
641 waivers and release apply to certain contracts;
642 amending s. 713.01, F.S.; revising the definition of
643 the term "contractor," "real property," and "final
644 furnishing"; amending s. 713.07, F.S.; providing that
645 certain liens have priority over certain subordinate
646 conveyances, encumbrances, or demands; amending s.
647 713.09, F.S.; providing that one claim of lien may be
648 used for multiple contracts; amending s. 713.13, F.S.;
649 revising information to be included in a notice of
650 commencement; amending 713.132, F.S., amending when a
651 notice of termination takes effect and who must
652 receive a notice of termination; amending s. 713.18,
653 F.S.; providing that service of an instrument is
654 effective on the date of shipping; amending ss. 713.20
655 and 713.235, F.S.; providing that certain waivers and
656 releases are unenforceable; amending s. 713.23, F.S.;
657 requiring that a copy of a notice of nonpayment be
658 served on the surety; amending s. 713.24, F.S.;
659 amending the process to transfer a lien to a security;
660 amending 713.29, F.S., amending when attorney's fees
661 may be recovered; providing an effective date.
662
833293 - h283-strike.docx
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Page 28 of 28
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL#: HB 481 Malt Beverages
SPONSOR(S): Mariano
TIED BILLS: IDEN./SIM. BILLS: SB 900
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Business & Professions Subcommittee Willson vl\J Anstead J2.o-.
2) Government Operations & Technology
Appropriations Subcommittee
3) Commerce Committee
SUMMARY ANALYSIS
In Florida, the Beverage Law regulates the manufacture, distribution, and sale of wine, beer, and liquor by
manufacturers, distributors, and vendors, as well as the business relations between beer distributors and
manufacturers. The Division of Alcoholic Beverages and Tobacco (Division) within the Department of Business
and Professional Regulation (DBPR) administers and enforces the Beverage Law.
Florida's "Tied House Evil Law," s. 561.42, F.S., prohibits a manufacturer or distributor of alcoholic beverages
from having a financial interest, directly or indirectly, in the establishment or business of a licensed vendor, and
prohibits a manufacturer or distributor from giving gifts, loans, property, or rebates to retail vendors.
Division rules allow retail vendors of alcoholic beverages to return damaged and undamaged products under
certain circumstances. The sale of alcoholic beverages on consignment or under a similar arrangement is
prohibited by Division rules and federal law.
Some brewers assign a coded "pull date" or "freshness date" to their product as a quality control tool to prevent
stale or outdated product from remaining in the marketplace. Federal regulations allow for the return
(exchange, refund or credit) of malt beverages for freshness reasons, under certain circumstances.
The bill defines terms and establishes a framework for the return of malt beverage products that are damaged,
undamaged, or out of code, including the return of product for freshness reasons. These provisions are similar
to provisions in federal law and Division rules. The bill also prohibits consignment sales.
The bill provides that the Department of Business and Professional Regulation (DBPR) is authorized to impose
and collect fines not to exceed $1,000, resulting in an insignificant positive fiscal impact. The bill provides
DBPR with rulemaking authority, which can be accomplished within existing resources.
The bill provides an effective date of July 1, 2020.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0481.BPS.DOCX
DATE: 12/4/2019
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Beverage Law
In Florida, the Beverage Law 1 regulates the manufacture, distribution, and sale of wine, beer, and liquor
by manufacturers, distributors, and vendors. The Division of Alcoholic Beverages and Tobacco
(Division) within the Department of Business and Professional Regulation (DBPR) administers and
enforces the Beverage Law. 2
"Alcoholic beverages" are defined in s. 561.01, F.S., as "distilled spirits and all beverages containing
one-half of 1 percent or more alcohol by volume." "Malt beverages" are brewed alcoholic beverages
containing malt. 3
Section 561.14, F.S., specifies license and registration classifications used in the Beverage Law:
• "Manufacturers" are those "licensed to manufacture alcoholic beverages and distribute the same
at wholesale to licensed distributors and to no one else within the state, unless authorized by
statute."
• "Distributors" are those "licensed to sell and distribute alcoholic beverages at wholesale to
persons who are licensed to sell alcoholic beverages."
• "Importers" are those "licensed to sell, or to cause to be sold, shipped, and invoiced, alcoholic
beverages to licensed manufacturers or licensed distributors, and to no one else in this state."
• "Vendors" are those "licensed to sell alcoholic beverages at retail only" and may not "purchase
or acquire in any manner for the purpose of resale any alcoholic beverages from any person not
licensed as a vendor, manufacturer, bottler, or distributor under the Beverage Law."
Three-Tier System and Tied House Evil
Since the repeal of Prohibition in 1933, regulation of alcohol in the United States has traditionally been
based upon what is termed the "three-tier system." The system requires separation of the manufacture,
distribution, and sale of alcoholic beverages. The manufacturer creates the beverages, and the
distributor obtains the beverages from the manufacturer to deliver to the vendor. The vendor makes the
ultimate sale to the consumer. 4 Generally, only licensed vendors are permitted to sell alcoholic
beverages directly to consumers at retail, and manufacturers, distributors, and exporters5 are generally
prohibited from holding a vendor's license. 6 Manufacturers, distributors, and vendors are generally
prohibited from being licensed or having an interest in more than one tier.
The three-tier system is deeply rooted in the perceived evils of the "tied house" in which a retail vendor
is owned or operated by a manufacturer or the manufacturer exercises undue influence over the retail
vendor.7
I
Section 561.01 (6), F.S., provides that the "The Beverage Law" means chs. 561, 562, 563, 564, 565, 567, and 568, F.S.
2
S. 561.02, F.S.
3
S. 563.01, F.S.
4
S. 561.14, F.S.
5
S. 561.01(16), F.S. "Exporter" means any person that sells alcoholic beverages to persons for use outside the state and includes a
ship's chandler and a duty-free shop
6
S. 561.22(1), F.S.; s. 561.14(3), F.S. However, see the exceptions provided in ss. 561.221 and 565.03, F.S.
7
See Andrew Tamayo, What's Brewing in the Old North State: An Analysis of the Beer Distribution Laws Regulating North
Carolina's Craft Breweries, 88 N.C. L. REV. 2198 (2010), http://scholarship.law.unc.edu/nclr/vol88/iss6/6.
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Florida's "Tied House Evil Law," s. 561.42, F.S., prohibits a manufacturer or distributor of alcoholic
beverages from having a financial interest, directly or indirectly, in the establishment or business of a
licensed vendor, and prohibits a manufacturer or distributor from giving gifts, loans, property, or rebates
to retail vendors. Additionally, s. 563.022(4), F.S., prohibits unfair methods of competition and unfair or
deceptive practices in the conduct of the manufacturing, importing, distribution, sale, wholesaling, and
franchising of beer.
Product Returns - Federal Law
Federal regulations prohibit the sale or purchase of any alcoholic beverage products on consignment,
under conditional sale, with privilege of return, on any basis other than a bona fide sale, or if the sale
involves an agreement to acquire other products. 8 However, transactions involving the bona fide return
of products for "ordinary and usual commercial reasons arising after the merchandise has been sold"
are not prohibited. 9 Under federal regulations, ordinary and usual commercial reasons include:
• Defective product,
• Shipment error,
• A change in law preventing the sale of the product,
• Termination of the buyer's business,
• Change in product from that in inventory,
• Product in inventory is discontinued, or
• Possible spoilage of product during the offseason of a seasonal retail dealer. 10
Such returns are optional. The distributor is not required to accept the return. 11 Returns or exchanges of
products that are merely overstocked, slow-moving, or seasonal in nature are not considered ordinary
and usual commercial reasons. 12
Freshness Dating
Some brewers assign a coded "pull date" or "freshness date" to their product as a quality control tool to
prevent stale or outdated product from remaining in the marketplace. 13 Federal regulations allow for the
return (exchange, refund or credit) of malt beverages for freshness reasons under the following
circumstances:
• The brewer has policies and procedures in place that specify the date the retailer must pull the
product.
• The policies and procedures are readily verifiable and consistently followed by the brewer.
• The container has identifying markings that correspond with this date.
• The malt beverage product pulled by the distributor or retailer may not re-enter the retail
marketplace.
• If the product is returned for exchange, it must be for an identical quantity of the same brand. 14
Federal regulation prohibits the use of freshness provisions as "mere subterfuge to violate these same
consignment sales and/or tied house provisions." 15
8
27 U.S.C. § 205(d).
9 Id.
10
27 C.F.R.§§ 11.32-11.39.
11
Alcohol and Tobacco Tax and Trade Bureau (TTB) Ruling, 20 I 7-2 Revised - Freshness Dating and Allowable Returns of Malt
Beverage Products under the FAA Act (Sept. 29, 2017). In the case of malt beverages, trade practice provisions of the Federal Alcohol
Administration Act (FAA Act) apply only if the laws of the state into which the malt beverage products are sold or shipped impose
similar requirements.
12
Id.; 27 C.F.R. § 11.45 & 11.46.
13 Id.
14 Id.
1s Id.
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Product Returns - Division Rules
The Beverage Law does not explicitly regulate the return of malt beverage products to distributors by
vendors. However, the Division has adopted rules to provide guidance to the industry.
Return of Damaged Products
Rule 61A-1.0107, F.A.C., regulates the return of damaged products. Products are considered damaged
if they, through no fault of the vendor or customer, exhibit product deterioration, leaking containers,
damaged labels, or missing or mutilated tamper-evident closures. Damaged products can be returned
for exchange, cash, or a credit when the vendor makes the request within 15 days of delivery.
Distributors are required to keep detailed transaction records of such returns. 16
If the vendor does not make the return request within 15 days of delivery, damaged product may not be
returned unless:
• The product is part of a manufacturer recall that affects multiple unaffiliated vendors; or
• Through no fault of the vendor, the product has deteriorated due to manufacturing or packaging
problems.
Return of Undamaged Products
Rule 61A-1.0108, F.A.C., regulates the return of undamaged products. A vendor may receive cash or
credit for the return of undamaged product if the request is made within 10 days of delivery. Distributors
are required to keep detailed transaction records of such returns.
If the vendor does not make the request within 10 days of delivery, undamaged product may not be
returned unless:
• The product may no longer be lawfully sold.
• The vendor goes out of business.
• There is a change in product, such as a change in formula, proof, label, or container.
• The product is discontinued; or
• The vendor is only open for a portion of the year, and the remaining product will spoil in the off-
season.17
Additionally, distributors are prohibited from making consignment sales to vendors, and vendors may
not attempt to return or exchange overstocked or slow-moving product. 18
Violations and Penalties
Section 562.45(1 ), F.S., provides that the false entry of any record required under the Beverage Law or
violation of the excise tax provisions, when done intentionally, is a felony of the third degree,
punishable as provided in ss. 775.082, 775.083, or 775.084, F.S. For violations of the Beverage Law
where no penalty is provided, first-time offenses are guilty of a misdemeanor of the second degree and
a felony of the third degree for any subsequent offenses thereafter.
Section 561.29, F.S., authorizes the Division to issue civil penalties for violations of the Beverage Law
and rules issued thereto. Such penalties may not exceed $1,000 per transaction. The Division is also
authorized to suspend the license of a licensee that fails to pay a civil penalty.
16
Section 561.55(3)(a), F.S., requires a manufacturer, distributor, broker, agent, and importer licensed under the Beverage Law to
maintain and keep, for a period of three years at the licensed place of business, such records of alcoholic beverages received, sold, or
delivered within or without this state as may be required by the Division
17
R. 61A-l.0108(4), F.A.C.
18 Jd
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Effect of the Bill
The bill creates s. 563.061, F.S., relating to the return of malt beverage products.
Consignment Sales Prohibited
The bill prohibits the sale of malt beverages on consignment or any other basis other than a "bona fide
sale." Once a sale is made, only "bona fide returns" are allowed for the "ordinary and usual commercial
reasons" authorized in the bill. The terms "bona fide sale" and "bona fide return" are not defined in the
bill. The bill also specifies that product may not be returned simply because it is overstocked, slow-
moving, or has limited or seasonal demand, such as holiday decanters or other specialized containers.
Product Returns
The bill outlines situations where a vendor is permitted to return product for an exchange, a credit, or a
refund. The bill does not condition the return of product for a credit or a refund, but product returned for
an exchange may only be exchanged for:
• the exact same quantity of product,
• of near or equal value,
• made by the same manufacturer, and
• in the same size container or keg.
Return of Undamaged Product
The bill defines "undamaged product" as malt beverage product that is not damaged or out of code.
Undamaged product may be returned for exchange or credit. The vendor must make their return
request within 7 days of delivery. However, there is no time frame for a distributor to accept the return
of undamaged product if:
• Due to a change in regulations, the vendor is no longer permitted to sell a particular brand or
product size. (For credit or refund. 19 )
• The vendor terminates operations. (For credit or refund.)
• The product is returned for "purposes of ensuring quality control or freshness" even if it is not
yet out of code. (For exchange only.)
• A manufacturer issues a recall affecting multiple vendors that are not: under common
ownership, members of the same pool buying group, or members of the same advertising
cooperative. (For exchange or credit.)
• Production or importation of the product is discontinued. (For credit or refund.)
• The vendor is only open for part of the year, and the inventory at closing would go bad before
the vendor reopens. (For credit or refund.)
When undamaged product is returned more than 7 days after delivery, documentation of the qualifying
exception must be kept with the transaction record maintained by the distributor.
Return of Damaged Product
The bill defines "damaged product" to mean a malt beverage product delivered to a vendor exhibiting
product deterioration, defective seals, leaking, damaged labels, or missing or mutilated tamper-evident
closures. The bill establishes the following guidelines for damaged product:
• Return requests must be made within 7 days of delivery.
• The distributor must verify that the product is damaged.
• Product that is damaged by the vendor or their customers may not be returned.
• Damaged product may be returned for exchange of product or credit.
19
Type of return allowed is indicated in parentheses.
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Return of Out-of-Code Product
The bill defines "out-of-code product" as malt beverages that have exceeded the manufacturer's code
date and, according to the manufacturer's policies, must be removed and replaced with fresh product
for purchase in the retail market.
The bill defines "manufacturer's code date" to mean a coded best-by date, expiration date, or other
designated date or dating system established by a manufacturer to signify freshness that is printed on
the malt beverage container or, in the case of a keg, marked on a cap, collar, tag, or label affixed
directly to the keg.
A distributor may accept out-of-code product if:
• The distributor verifies that the product is out-of-code.
• The manufacturer has established written guidelines relating to product removal.
• Such policies and procedures are readily available, verifiable, and consistently applied by the
manufacturer.
• The manufacturer's code date is printed or marked on the product container.
• The out-of-code product that is removed by the distributor does not reenter the retail market.
Out-of-code product may be returned for exchange only.
Distributor Requirements
The bill authorizes, but does not require, distributors to accept returns. When a distributor does accept
a return, the distributor is required to:
• Provide the exchange, credit, or refund to the vendor at the time the product is picked up.
• Pick up damaged or undamaged product within 14 days of a vendor's return request.
• The bill does not specify when a distributor must pick up product that is out-of-code.
The bill requires distributors to maintain detailed transaction records for returned product for 3 years
and provide a copy to the vendor.
Additional Provisions
The bill specifies that, for the purposes of the Tied-House Evil Law, authorized returns are not
considered gifts, loans, or any other form of prohibited financial aid or assistance. The bill authorizes
the Division to impose a fine of up to $1,000 for each violation. The bill authorizes the Division to adopt
rules to administer and enforce the provisions.
B. SECTION DIRECTORY:
Section 1. Creates s. 563.061, F.S.; providing definitions; prohibiting consignment sales of malt
beverages between a distributor and vendor; authorizing bona fide returns of malt
beverages under certain conditions; providing applicability; authorizing distributors to
accept returns of certain products under specified conditions; providing distributor
requirements for such returns; providing requirements for exchanges of product;
providing recordkeeping requirements; specifying that authorized returns are not gifts,
loans, or other prohibited forms of financial aid or assistance; providing penalties; and
providing for rulemaking.
Section 2. Provides for an effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
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A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
The bill provides that the Department of Business and Professional Regulation is authorized to
impose and collect fines not to exceed $1,000, resulting in an insignificant positive fiscal impact.
2. Expenditures:
The bill provides DBPR with rulemaking authority, which can be accomplished within existing
resources.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
For some manufacturers and distributors, the bill may have a positive economic impact due to an
increase in consumer sales, stemming from the ability to move product between vendors for
"freshness" purposes.
For other manufacturers and distributors, the bill may have a negative economic impact to the extent
that their brands become less attractive to vendors as compared to brands for which there is a
freshness policy.
For vendors, the bill may have a positive economic impact for those with difficult to sell inventory, and
may have a negative impact to the extent that the narrowing of the window for returns and the addition
of a freshness policy affects a vendor's ability to return or sell certain products.
D. FISCAL COMMENTS:
None.
Ill. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
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The bill authorizes the Division of Alcoholic Beverages and Tobacco to adopt rules to administer the
provisions of the bill.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
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FLORIDA H O U S E O F R E P R E S E N T A T I V E S
HB 481 2020
1 A bill to be entitled
2 An act relating to malt beverages; creating s.
3 563.061, F.S.; providing definitions; prohibiting
4 consignment sales of malt beverages between a
5 distributor and vendor; authorizing bona fide returns
6 of malt beverages under certain conditions; providing
7 applicability; authorizing distributors to accept
8 returns of certain products under specified
9 conditions; providing distributor requirements for
10 such returns; providing requirements for exchanges of
11 product; providing recordkeeping requirements;
12 specifying that authorized returns are not gifts,
13 loans, or other prohibited forms of financial aid or
14 assistance; providing penalties; providing for
15 rulemaking; providing an effective date.
16
17 Be It Enacted by the Legislature of the State of Florida:
18
19 Section 1. Section 563.061, Florida Statutes, is created
20 to read:
21 563.061 Return of malt beverage products.-
22 (1) DEFINITIONS.-As used in this section, the term:
23 (a) "Damaged product" means a malt beverage product
24 delivered to a vendor exhibiting product deterioration,
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25 defective seals, leaking, damaged labels, or missing or
26 mutilated tamper-evident closures.
27 (b} "Keg" means a reusable container used to store and
28 dispense a malt beverage product in draft form on tap.
29 (c} "Manufacturer's code date" means a coded best-by date,
30 expiration date, or other designated date or dating system
31 established by a manufacturer to signify freshness that is
32 printed on the malt beverage container or, in the case of a keg,
33 marked on a cap, collar, tag, or label affixed directly to the
34 keg.
35 (d} "Out-of-code product" means a malt beverage product
36 that has exceeded the manufacturer's code date and, according to
37 the manufacturer's policies, must be removed and replaced with
38 fresh product for purchase in the retail market.
39 (e) "Undamaged product" means a malt beverage product that
40 is not damaged or out of code.
41 (2) CONSIGNMENT SALES PROHIBITED; AUTHORIZED RETURNS.-A
42 distributor may not sell, offer for sale, or contract to sell
43 malt beverages on consignment or any basis other than a bona
44 fide sale. A vendor may not purchase, offer to purchase, or
45 contract to purchase malt beverages on consignment or any basis
46 other than a bona fide sale. Once a distributor sells malt
47 beverages to a vendor, only bona fide returns are permitted for
48 the ordinary and usual commercial reasons authorized in this
49 section. This section does not permit return of product because
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50 it is overstocked or slow-moving or because it has limited or
51 seasonal demand, including, but not limited to, product packaged
52 in holiday decanters or distinctive bottles.
53 (3) RETURNS OF UNDAMAGED PRODUCT.-
54 (a) Except as provided in paragraph (b), undamaged product
55 may be returned for exchange of product or credit.
56 (b) A distributor may only accept a return of undamaged
57 product if the return is requested within 7 days after the
58 delivery date. However, a distributor may accept a return of
59 undamaged product after such time in the following
60 circumstances:
61 1. If a vendor or its employees or agents are no longer
62 permitted, due to a change in regulation or administrative
63 procedure, to sell a particular brand or size product, such
64 product may be returned for credit or refund.
65 2. If a vendor terminates operations, the vendor's
66 inventory of product at the time of termination may be returned
67 for credit or refund. This subparagraph does not apply during a
68 vendor's temporary seasonal shutdown.
69 3. Except as provided in subparagraph 6., a product that
70 has not yet exceeded the manufacturer's code date may be
71 returned for purposes of ensuring quality control or freshness;
72 however, such product may only be returned for exchange of
73 product.
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74 4. If a manufacturer has issued a product recall that
75 affects multiple vendors that are not affiliated through having
76 common ownership, being members of the same pool buying group,
77 or being members of the same advertising cooperative, the
78 recalled product may be returned for exchange of product or
79 credit. If return of such product is requested more than 7 days
80 after the delivery date, the distributor must keep documentation
81 of the recall with the transaction record maintained pursuant to
82 subsection ( 8) .
83 5. If production or importation of a product is
84 discontinued, a vendor's inventory of the discontinued product
85 may be returned for credit or refund.
86 6. If a vendor is only open for a portion of the year and
87 has product remaining at closure which, with respect to quality
88 control or freshness, would become unsuitable for sale during
89 the off-season according to the manufacturer's code date, such
90 product may be returned for credit or refund.
91
92 If undamaged product is returned under this paragraph, the
93 distributor must keep documentation of a qualifying exception in
94 subparagraphs 1.-6. with the transaction record maintained
95 pursuant to subsection (8).
96 (4) RETURNS OF DAMAGED PRODUCT.-
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97 (a) Damaged product may only be returned for exchange of
98 product or credit. A distributor must verify damaged product
99 before accepting its return.
100 (b) Product damaged by a vendor, its employees or agents,
101 or its customers may not be returned and shall be the vendor's
102 liability.
103 (c) A distributor may only accept return of damaged
104 product if requested within 7 days after the delivery date.
105 (5) RETURNS OF OUT-OF-CODE PRODUCT.-
106 (a) Out-of-code product may only be returned for exchange
107 of product. A distributor must verify out-of-code product before
108 accepting its return.
109 (b) A distributor may accept return of out-of-code product
110 any time after the manufacturer's code date only in the
111 following circumstances:
112 1. The manufacturer has written policies and procedures
113 that specify the date that out-of-code product should be
114 removed.
115 2. Such policies and procedures are readily available,
116 verifiable, and consistently applied by the manufacturer.
117 3. The manufacturer's code date is printed on the product
118 container or, in the case of a keg, marked on a cap, collar,
119 tag, or label affixed directly to the keg.
120 4. Out-of-code product removed by the distributor does not
121 reenter the retail market.
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122 (6) EXCHANGES OF PRODUCT.-An exchange of product
123 authorized under this section must be in exact quantities with a
124 product of near or equal value, made by the same manufacturer,
125 and in the same size container or keg unless a credit is issued
126 at the time of the return.
127 (7) DISTRIBUTOR REQUIREMENTS FOR RETURNS.-This section
128 does not require a distributor to accept returns authorized
129 under this section; however, if a distributor accepts return of
130 product, the distributor must:
131 (a} Provide the exchange of product, credit, or refund to
132 the vendor, as provided in subsections (3)-(5), at the same time
133 the distributor picks up the product being returned.
134 (b} For damaged or undamaged product, pick up the product
135 being returned within 14 days after receipt of the vendor's
136 request.
137 (8) TRANSACTION RECORDS.-A distributor must keep and
138 maintain for 3 years a transaction record of each return
139 identifying the vendor's business name, address, and license
140 number; product returned for exchange of product, credit, or
141 refund; and any other documentation required by this section.
142 The distributor must provide a copy of the transaction record to
143 the vendor in a format accessible and readable by the vendor.
144 Such transaction records must be maintained on the distributor's
145 licensed premises, or may be kept at another location in this
146 state if the distributor notifies the division in writing before
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147 keeping records in another location, and must be made available
148 to the division upon request for inspection in a format
149 accessible and readable by the division. The distributor must
150 notify the division in writing of any change in recordkeeping
151 location.
152 (9) RETURNS NOT TIED HOUSE EVIL.-Bona fide returns
153 authorized under this section for exchange of product, credit,
154 or refund are not considered gifts, loans, or other forms of
155 financial aid or assistance prohibited bys. 561.42.
156 (10) CIVIL PENALTY.-In accordance withs. 561.29, the
157 division may impose a civil penalty against a distributor or
158 vendor for any violation of this section, or any rule adopted
159 under this section, not to exceed $1,000 per violation.
160 (11) RULEMAKING AUTHORITY.-The division may adopt rules to
161 administer and enforce this section.
162 Section 2. This act shall take effect July 1, 2020.
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HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL#: HB 583 Beverage Law
SPONSOR(S): Sabatini
TIED BILLS: IDEN./SIM. BILLS: SB 138, SB 482
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Business & Professions Subcommittee Willson /ul vJ Anstead
2) Government Operations & Technology
Appropriations Subcommittee
3) Commerce Committee
SUMMARY ANALYSIS
In Florida, the Beverage Law regulates the manufacture, distribution, and sale of wine, beer, and liquor by
manufacturers, distributors, and vendors. The Division of Alcoholic Beverages and Tobacco in the Department
of Business and Professional Regulation administers and enforces the Beverage Law.
Relating to alcoholic beverage container sizes, the bill:
• Repeals s. 564.05, F.S., relating to wine container size limitations.
• Repeals s. 564.055, F.S., relating to cider container size limitations.
• Amends s. 564.09, F.S., to specify that a restaurant patron may take home a partially consumed bottle of
wine with the purchase of "a meal."
Relating to craft distilleries, the bill:
• Clarifies that a craft distiller may blend their product with other distilled spirits.
• Increases the maximum production threshold for craft distilleries, and similar provisions related to
ownership interests, from 75,000 to 250,000 gallons.
• Allows a craft distillery to sell up to 250,000 gallons of branded product per year from its souvenir gift shop
and removes the limitations on the number of bottles per brand per consumer that may be sold per year.
• Allows a craft distillery to ship or deliver product to consumers located outside the state, subject to the laws
of the receiving state.
• Authorizes the issuance of a vendor's license for the sale of alcoholic beverages on a distillery's licensed
premises.
• Specifies that any alcoholic beverages not manufactured on-site by the distillery must be obtained through
a licensed distributor, broker, agent or importer.
The bill may have a positive fiscal impact for certain entities involved in the production or sale of wine, cider
and distilled spirits. See Fiscal Analysis & Economic Impact Statement.
The bill provides an effective date of July 1, 2020.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Beverage Law
In Florida, the Beverage Law 1 regulates the manufacture, distribution, and sale of wine, beer, and liquor
by manufacturers, distributors, and vendors. The Division of Alcoholic Beverages and Tobacco
(Division) within the Department of Business and Professional Regulation (DBPR) administers and
enforces the Beverage Law. 2
"Alcoholic beverages" are defined in s. 561.01, F.S., as "distilled spirits and all beverages containing
one-half of 1 percent or more alcohol by volume." "Malt beverages" are brewed alcoholic beverages
containing malt. 3
Wine Containers
Section 564.05, F.S., prohibits the sale of wine in an individual container that holds more than one
gallon of wine. However, wine may be sold in a reusable container of 5.16 gallons. Distributors and
manufacturers may sell wine to other distributors and manufacturers in containers of any size. Any
person who violates the prohibition ins. 564.05, F.S., commits a second degree misdemeanor. 4
Effect of the Bill
The bill repeals s. 564.05, F.S., relating to limitations on the size of individual wine containers.
Cider Containers
Section 564.055, F.S., prohibits the sale of cider by vendors at retail in any individual container of more
than 32 ounces. However, cider may be packaged and sold in bulk, in kegs or barrels, or in any
individual container of one gallon or more, regardless of container type. The Beverage Law does not
provide for the sale of cider in growlers.
Effect of the Bill
The bill repeals s. 564.055, F.S., relating to the retail sale of individual cider containers.
Restaurants - Off-Premises Consumption of Wine
Restaurants licensed to sell wine on the premises may permit patrons to remove one bottle of wine for
consumption off the licensed premises under the following conditions:
• The patron must have purchased a full-course meal consisting of a salad or vegetable, entree, a
beverage, and bread and consumed a portion of the bottle of wine with the meal;
• Before the partially-consumed bottle of wine is removed from the premises, the bottle must be
securely resealed by the licensee, or the licensee's employee, and placed in a bag or other
1
Section 561.01(6), F.S., provides that the "The Beverage Law" means chs. 561, 562, 563, 564, 565, 567, and 568, F.S.
2
S. 561.02, F.S.
3
S. 563.01, F.S.
4
Section 775.082, F.S., provides the penalty for a misdemeanor of the second degree is a term of imprisonment not exceeding 60
days. Section 775.083, F.S., provides the penalty for a misdemeanor of the second degree is a fine not to exceed $500.
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container that is secured in such a manner that it is visibly apparent if the container has been
opened or tampered with after having been sealed;
• A dated receipt for the wine and meal must be attached to the container; and
• The container must be placed in a locked glove compartment, trunk, or other area behind the
last upright seat of a motor vehicle that does not have a trunk. 5
Effect of the Bill
The bill amends 564.09, F.S., simplifying the requirement that a patron's meal be a "full course meal
consisting of salad or vegetable, entree, a beverage, and bread" to just "a meal."
Three-Tier System
Since the repeal of Prohibition, regulation of alcohol in the United States has traditionally been based
upon what is termed the "three-tier system." The system requires separation of the manufacture,
distribution, and sale of alcoholic beverages. The manufacturer creates the beverages, and the
distributor obtains the beverages from the manufacturer to deliver to the vendor. The vendor makes the
ultimate sale to the consumer. 6
Generally, only licensed vendors are permitted to sell alcoholic beverages directly to consumers at
retail, and manufacturers, distributors, and exporters7 are generally prohibited from holding a vendor's
license. 8 Manufacturers, distributors, and vendors are generally prohibited from being licensed or
having an interest in more than one tier. Limited exceptions, subject to certain conditions, include the
ability for a craft brewery to hold a vendor's license (tap room), a restaurant to hold a manufacturer's
license (brew pub), and a winery to hold up to three vendor's licenses. 9
Alcoholic Beverage Deliveries
Vendors, but not manufacturers or distributors, are allowed to make deliveries away from their place of
business for sales actually made at their licensed place of business. Telephone, electronic, and mail
orders received at a vendor's licensed place of business are construed as a sale actually made at the
vendor's licensed place of business. Deliveries may be made in vehicles that are owned or leased by
the vendor, or in a third-party vehicle pursuant to a contract with a third party with whom the vendor has
contracted to make deliveries, including, but not limited to, common carriers. 10
A craft brewery which also holds a vendor's license is specifically prohibited from making deliveries
under this law. 11
Distilleries and Craft Distilleries
Section 565.01, F.S., defines the terms "liquor," "distilled spirits," "spirituous liquors," "spirituous
beverages," or "distilled spirituous liquors" to mean "that substance known as ethyl alcohol, ethanol, or
spirits of wine in any form, including all dilutions and mixtures thereof from whatever source or by
whatever process produced."
5
S. 564.09, F.S.
6
S. 561.14, F.S.
7
S. 561.01(16), F.S. "Exporter" means any person that sells alcoholic beverages to persons for use outside the state and includes a
ship's chandler and a duty-free shop
8
S. 561.22(1), F.S.; s. 561.14(3), F.S. However, see the exceptions provided in ss. 561.221 and 565.03, F.S.
9
See ss. 561.22, F.S.; 561.24, F.S.; 561.14(1), F.S.; and 563.022(14), F.S.
10
S. 561.57(1) & (2), F.S.
11
Ss. 561.221 (2)(d), and 565.57(1), F.S.
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A "distillery" is a manufacturer of distilled spirits, and a "craft distillery" is a licensed distillery that
produces 75,000 or fewer gallons of distilled spirits per calendar year on its premises. A craft distillery
must notify the Division in writing of its decision to qualify as a craft distillery. 12
A distillery engaged solely in the business of manufacturing distilled spirits, or a person engaged in the
business of blending and rectifying distilled spirits must pay a state license tax of $4,000 for each plant
or branch operating in Florida. The license tax for a craft distillery is $1,000. Persons who engage in the
business of distilling spirits may also rectify and blend spirituous liquors without paying an additional
license tax. 13
According to the Division, 58 of the 60 licensed distilleries operating in Florida produce less than
75,000 gallons of distilled spirits. 14
Retail Sales by Craft Distilleries
A craft distillery is allowed to sell to consumers branded products, 15 distilled on the licensed premises,
in factory-sealed containers that are filled at the distillery and sold for off-premises consumption only.
The sales must occur at the distillery's souvenir gift shop located on private property contiguous to the
licensed distillery premises, and included on the sketch submitted with the license application. Sales
must be in face-to-face transactions with consumers who are making a purchase of no more than six
individual containers of each branded product. 16 The craft distillery is not required to obtain a vendor's
license to sell to consumers from their souvenir gift shop.
The Division must approve any subsequent revisions to a craft distillery's sketch to verify that the
souvenir gift shop location operated by the craft distillery is "owned or leased by the craft distillery and
on property contiguous to the craft distillery's production building." 17
Section 565.03, F.S., imposes the following requirements and prohibitions for craft distilleries:
• A craft distillery may not ship, arrange to ship, or deliver distilled spirits to consumers, but may
ship, arrange to ship, or deliver distilled spirits to manufacturers of distilled spirits, wholesale
distributors of distilled spirits, state or federal bonded warehouses, and exporters.
• A craft distillery may not transfer its license or any ownership interest to any individual or entity
with a direct or indirect interest in another distillery licensed in any other state, territory, or
country. However, a craft distillery may be affiliated with another distillery that produces 75,000
or fewer gallons per calendar year of distilled spirits on its premises or in any other state,
territory, or country.
• A craft distillery must report to the Division within 5 business days after it has reached the
75,000-gallon production limit and cease making sales to consumers on the day after it reaches
the production limit.
• A craft distillery must submit beverage excise taxes on distilled spirits sold to consumers in its
monthly report to the Division.
• Containers must comply with the container limits ins. 565.10, F.S., which prohibits the sale and
distribution of distilled spirits in any size container in excess of 1. 75 liters or 59.18 ounces.
Effect of the Bill
The bill amends s. 565.03, F.S., to:
12
Ss. 565.03(l)(b) & (c), F.S.
13
S. 565.03(2)(b), F.S.
14
Department of Business and Professional Regulation, Agency Analysis of2019 HB 1229, p. 4 (Mar. 18, 2019).
15
Section 565.03(l)(a), F.S., defines "branded product" to mean "any distilled spirits product manufactured on site, which requires a
federal certificate and label approval by the Federal Alcohol Administration Act or federal regulations."
16
S. 565.03(l)(c), F.S.
11 Id.
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• Expand the definition of "branded product" to allow craft distillers to blend their product with
distilled spirits that are not manufactured on site.
• Increase the maximum production threshold for craft distilleries and similar provisions related to
ownership interests, from 75,000 to 250,000.
• Allow a craft distillery to sell up to 250,000 gallons of branded product per year from its souvenir
gift shop and removes the limitations on the number of bottles per brand per consumer that may
be sold per year.
• Specify that a craft distillery can transfer up to 250,000 gallons of its product from its federal
bonded space, nonbonded space, or storage areas to its souvenir gift shop, per year.
• Prohibit a craft distillery that does not have a vendor's license under s. 561.221, F.S., from
shipping its distilled spirits to consumers located in the state.
• Allow a craft distillery to ship, arrange to ship, or deliver product to consumers located outside
the state, subject to the laws of the receiving state.
The bill amends s. 561.221, F.S., to:
• Authorize the issuance of a vendor's license to any distillery for the sale of alcoholic beverages
on the distillery's licensed premises.
• Specify that any alcoholic beverages distilled by another manufacturer, regardless of ownership,
must be obtained through a licensed distributor, a licensed broker or sales agent, or a licensed
importer.
The bill provides an effective date of July 1, 2020.
8. SECTION DIRECTORY:
Section 1: Repeals s. 564.05, F.S., relating to limitations on the size of individual wine containers.
Section 2: Repeals s. 564.055, F.S., relating to limitations on the size of individual cider containers.
Section 3: Amends s. 564.09, F.S.; revising provisions that authorize a restaurant to allow patrons
to remove partially consumed bottles of wine from a restaurant for off-premises
consumption.
Section 4: Amends s. 565.03, F.S., redefining the terms "branded product" and "craft distillery";
revising the requirements for the sale of branded products by a licensed craft distillery to
consumers; deleting a provision that prohibits a craft distillery from selling more than six
individual containers of a branded product to a consumer; etc.
Section 5: Amends s. 561.221, F.S.; authorizing the division to issue vendor's licenses to certain
distilleries under certain circumstances; requiring that certain information be included on
certain sketches and diagrams and approved by the Division under certain
circumstances; requiring that certain alcoholic beverages be obtained through a licensed
distributor, a licensed broker or sales agent, or a licensed importer.
Section 6: Provides for an effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
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2. Expenditures:
None.
8. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may have a positive economic impact on certain entities in the wine and cider industry, due to
the lessening or elimination of regulatory constraints relating to container sizes.
The bill may have a positive economic impact for many craft distilleries due to the removal of many
current regulatory constraints, resulting in enhanced brand recognition, increased sales volume,
opportunities for collaboration, and access to new markets and consumers.
D. FISCAL COMMENTS:
None.
Ill. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
8. RULE-MAKING AUTHORITY:
The bill does not appear to create a need for rulemaking or rulemaking authority.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
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FLORIDA H O U S E O F REPRESENTATIVES
HB 583 2020
1 A bill to be entitled
2 An act relating to the Beverage Law; repealing s.
3 564.05, F.S., relating to limitations on the size of
4 individual wine containers; repealing s. 564.055,
5 F.S., relating to limitations on the size of
6 individual cider containers; amending s. 564.09, F.S.;
7 revising provisions that authorize a restaurant to
8 allow patrons to remove partially consumed bottles of
9 wine from a restaurant for off-premises consumption;
10 amending s. 565.03, F.S.; redefining the terms
11 "branded product" and "craft distillery"; revising the
12 requirements for the sale of branded products by a
13 licensed craft distillery to consumers; deleting a
14 provision that prohibits a craft distillery from
15 selling more than six individual containers of a
16 branded product to a consumer; revising requirements
17 relating to the shipping of distilled spirits to
18 consumers by a craft distillery; providing that it is
19 unlawful to transfer a distillery license, or
20 ownership in a distillery license, for certain
21 distilleries to certain individuals or entities;
22 prohibiting a craft distillery from having its
23 ownership affiliated with certain other distilleries;
24 authorizing a craft distillery to transfer specified
25 distilled spirits from certain locations to its
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26 souvenir gift shop; requiring a craft distillery
27 making certain transfers of distilled spirits to
28 submit certain excise taxes with its monthly report to
29 the Division of Alcoholic Beverages and Tobacco of the
30 Department of Business and Professional Regulation;
31 amending s. 561.221, F.S.; authorizing the division to
32 issue vendor's licenses to certain distilleries for
33 the sale of alcoholic beverages on the distillery's
34 licensed premises; requiring that the licensed vendor
35 premises be included on certain sketches and diagrams
36 under certain circumstances; requiring that all
37 revisions to a sketch or diagram be approved by the
38 division; requiring that certain alcoholic beverages
39 be obtained through a licensed distributor, a licensed
40 broker or sales agent, or a licensed importer;
41 providing an effective date.
42
43 Be It Enacted by the Legislature of the State of Florida:
44
45 Section 1. Section 564.05, Florida Statutes, is repealed.
46 Section 2. Section 564.055, Florida Statutes, is repealed.
47 Section 3. Section 564.09, Florida Statutes, is amended to
48 read:
49 564.09 Restaurants; off-premises consumption of wine.-
SO Notwithstanding any other provision of law, a restaurant
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51 licensed to sell wine on the premises may permit a patron to
52 remove one unsealed bottle of wine for consumption off the
53 premises if the patron has purchased a full course meal
54 consisting of a salad or vegetable, entree, a beverage, and
55 bread and consumed a portion of the bottle of wine with such
56 me-a-±- on the restaurant premises. A partially consumed bottle of
57 wine that is to be removed from the premises must be securely
58 resealed by the licensee or its employees before removal from
59 the premises. The partially consumed bottle of wine shall be
60 placed in a bag or other container that is secured in such a
61 manner that it is visibly apparent if the container has been
62 subsequently opened or tampered with, and a dated receipt for
63 the bottle of wine and full course meal shall be provided by the
64 licensee and attached to the container. If transported in a
65 motor vehicle, the container with the resealed bottle of wine
66 must be placed in a locked glove compartment, a locked trunk, or
67 the area behind the last upright seat of a motor vehicle that is
68 not equipped with a trunk.
69 Section 4. Paragraphs (a) and (b) of subsection (1),
70 paragraphs (b) and (c) of subsection (2), and subsection (5) of
71 section 565.03, Florida Statutes, are amended to read:
72 565.03 License fees; manufacturers, distributors, brokers,
73 sales agents, and importers of alcoholic beverages; vendor
74 licenses and fees; distilleries and craft distilleries.-
75 (1) As used in this section, the term:
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76 (a) "Branded product" means any distilled spirits product
77 manufactured on site, or manufactured on site and blended on
78 site with other distilled spirits, which requires a federal
79 certificate and label approval by the Federal Alcohol
80 Administration Act or federal regulations.
81 (b) "Craft distillery" means a licensed distillery that
82 produces 250,000 75,000 or fewer gallons per calendar year of
83 distilled spirits on its premises and is designated as a craft
84 distillery by has notified the division upon notification in
85 writing of its decision to qualify as a craft distillery.
86 (2)
87 (b) A licensed distillery or craft distillery may Persons
88 licensed under this section who are in the business of
89 distilling spirituous liquors may also engage in the business of
90 rectifying and blending spirituous liquors without the payment
91 of an additional license tax.
92 (c) A craft distillery licensed under this section which
93 is not licensed as a vendor under s. 561.221 may sell to
94 consumers under its craft distillery license, at its souvenir
95 gift shop, up to 250,000 gallons per calendar year of branded
96 products distilled on its premises in this state in factory-
97 sealed containers that are filled at the distillery for off-
98 premises consumption by consumers. Such sales are authorized
99 only on private property owned or leased by the craft distillery
100 which is contiguous to the craft distillery's licensed
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101 distillery premises approved by the division in this state and
102 included on the sketch or diagram defining the licensed premises
103 subfflitted with the distillery's license application. All sketch
104 or diagraffi revisions by the distillery shall require the
105 division's approval verifying that the souvenir gift shop
106 location operated by the licensed distillery is owned or leased
107 by the distillery and on property contiguous to the distillery's
108 production building in this state.
109 1. A craft distillery may not sell under its craft
110 distillery license any factory-sealed individual containers of
111 spirits to consumers in this state except in face-to-face sales
112 transactions with such consumers at the craft distillery's
113 licensed premises. Such containers must be in compliance with
114 the container limits as provided ins. 565.10 who arc ffiaking a
115 purchase of no ffiore than sin individual containers of each
116 branded product.
117 2. 8ach container sold in face to face transactions with
118 consuffiers must eoffiply ,dth the container limits in s. 565 .10,
119 per calendar year for the consumer's personal use and not for
120 resale and who are present at the distillery's licensed premises
121 in this state.
122 2.-3-. A craft distillery must report to the division within
123 5 days after it reaches the production limitations provided in
124 paragraph ( 1) (b) . Any retail sales to consumers under its craft
125 distillery license at the craft distillery's licensed prefflises
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126 are prohibited beginning the day after it reaches the production
127 limitation.
128 3.4-. A craft distillery that has not been issued a
129 vendor's license under s. 561.221 may not ship or arrange to
130 ship any of its distilled spirits to consumers in this state and
131 may sell and deliver only to consumers within the state in a
132 face-to-face transaction at the distillery property. However, a
133 craft distillery distiller licensed under this section may ship,
134 arrange to ship, or deliver such spirits to manufacturers of
135 distilled spirits, wholesale distributors of distilled spirits,
136 state or federal bonded warehouses, afiEi. exporters, or consumers
137 located outside of this state; however, all such shipments must
138 comply with the laws where such products are scheduled to be
139 delivered for personal use.
140 4 . .§... Except as provided in subparagraph~ -6--;-, it is
141 unlawful to transfer a distillery license for a distillery that
142 produces 250,000 75,000 or fewer gallons per calendar year of
143 distilled spirits on its premises or any ownership interest in
144 such license to an individual or entity that has a direct or
145 indirect ownership interest in any distillery licensed in this
146 state; another state, territory, or country; or by the United
147 States government to manufacture, blend, or rectify distilled
148 spirits for beverage purposes.
149 5.-6--;- A craft distillery shall not have its ownership
150 affiliated with another distillery, unless such distillery
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151 produces 250,000 75,000 or fewer gallons per calendar year of
152 distilled spirits on each of its premises in this state or in
153 another state, territory, or country.
154 6. A craft distillery may transfer up to 250,000 gallons
155 per calendar year of distilled spirits that it manufactures from
156 its federal bonded space, nonbonded space at its licensed
157 premises, or storage areas to its souvenir gift shop.
158 (5) A craft distillery may transfer distilled spirits to
159 any of its retail areas pursuant to paragraph (2) (c) or s.
160 561.221 and making sales under paragraph (2) (e) is responsible
161 for submitting any excise taxes due to the state on distilled
162 spirits on beverages under the Beverage Law with -i-fi its monthly
163 report to the division with any tan payments due to the state.
164 Section 5. Subsection (4) is added to section 561.221,
165 Florida Statutes, to read:
166 561.221 Licensing of manufacturers and distributors as
167 vendors and of vendors as manufacturers; conditions and
168 limitations.-
169 (4) (a) Notwithstanding s. 561.22, s. 561.42, or any other
170 provision of the Beverage Law, the division may issue a vendor's
171 license for the sale of alcoholic beverages on a distillery's
172 licensed premises to a distillery licensed under s. 565.03, even
173 if such distillery is also licensed as a distributor.
174 (b) If the vendor's license is for the sale of alcoholic
175 beverages on a distillery's licensed premises, the licensed
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176 vendor premises must be included on the sketch or diagram
177 defining the licensed premises submitted with the distillery's
178 license application. All sketch or diagram revisions by the
179 distillery must be approved by the division, verifying that the
180 vendor premises operated by the licensed distillery is owned or
181 leased by the distillery and is located on the licensed
182 distillery premises.
183 (c) Distilled spirits and other alcoholic beverages
184 manufactured by another licensed manufacturer, including any
185 distilled spirits that are owned in whole or in part by the
186 craft distillery but are distilled by another manufacturer, must
187 be obtained through a licensed distributor, a licensed broker or
188 sales agent, or a licensed importer.
189 Section 6. This act shall take effect July 1, 2020.
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HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 623 Community Associations
SPONSOR(S): Shoaf
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Business & Professions Subcommittee Brackett l /fl Anstead
2) Civil Justice Subcommittee
3) Commerce Committee
SUMMARY ANALYSIS
The Division of Florida Condominiums, Timeshares, and Mobile Homes, within the Department of Business
and Professional Regulation (DBPR), broadly regulates condominium and cooperative associations and has
limited regulatory authority over homeowner's associations (HOA).
The bill:
• Exempts a pool within an HOA with 32 parcels or less from the Department of Health's regulation of
public pools.
• Requires associations to maintain bids for work or materials for one year, instead of seven.
• Requires an HOA to maintain ballots and all records relating to elections in the HOA's official records.
• Prohibits associations from requiring owners to state a reason for requesting to inspect official records.
• Provides that a condominium association required to make association documents available on a
website may instead make them available on a mobile application.
• Allows an HOA to give notice of a meeting on a website.
• Provides that condominium board term limits do not apply retroactively to service prior to 2018.
• Prohibits condominium owners' insurance policies from providing rights of subrogation against the
association under certain circumstances.
• Allows condominiums to charge a buyer or renter the actual cost of a background check.
• Provides that certain notice requirements apply to all unit owner meetings instead of just the annual
meetings.
• Amends the due date for paying a fine levied by an association.
• Provides that an interest in a cooperative unit is an interest in real property, instead of an interest in
personal property.
• Removes the provision that prohibited a condominium association from contracting with a company in
which a board member has a financial interest.
• Allows the office of the Condominium Ombudsman to be located outside of Leon County.
• Restates that any provision in a community association's declaration, bylaws, or rules that violates any
right under the 14th amendment of the U.S. Constitution or article II of the Florida Constitution is void
and unenforceable, and no action is required by an association to remove or amend such provisions.
• Provides that a community association may record a notice in the county in which it is located indicating
that it does not intend to enforce any regulation in its declaration, bylaws, or rules that infringes upon
the 14th amendment or article 11.
The bill is not expected to have a fiscal impact on local government. The bill may have a fiscal impact on state
government. See Fiscal Comments.
The effective date of the bill is July 1, 2020.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
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DATE: 12/10/2019
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Community Associations
The Florida Division of Condominiums, Timeshares and Mobile Homes (Division), within the
Department of Business and Professional Regulation (DBPR), provides consumer protection for Florida
residents living in regulated communities through education, complaint resolution, mediation and
arbitration, and developer disclosure. The Division has regulatory authority over the following business
entities and individuals:
• Condominium Associations;
• Cooperative Associations;
• Florida Mobile Home Parks and related associations;
• Vacation Units and Timeshares;
• Yacht and Ship Brokers and related business entities; and
• Homeowners' Associations (limited to arbitration of election and recall disputes).
Condominiums
A condominium is a form of ownership of real property created pursuant to ch. 718, F.S., comprised of
units which may be owned by one or more persons along with an undivided right of access to common
elements. 1 A condominium is created by recording a declaration of condominium in the public records
of the county where the condominium is located. 2 A declaration governs the relationships among
condominium unit owners and the condominium association. All unit owners are members of the
condominium association, an entity responsible for the operation and maintenance of the common
elements owned by the unit owners. The condominium association is overseen by an elected board of
directors, commonly referred to as a "board of administration." The board enacts bylaws which govern
the administration of the association.
Cooperatives
A cooperative is a form of property ownership created pursuant to ch. 719, F.S. The real property is
owned by the cooperative association, and individual units are leased to the residents who own shares
in the cooperative association. 3 The lease payment amount is the pro-rata share of the operational
expenses of the cooperative. Cooperatives operate similarly to condominiums and the laws regulating
cooperatives are in many instances nearly identical to those regulating condominiums.
Homeowners' Associations
A homeowners' association (HOA) is an association of residential property owners in which voting
membership is made up of parcel owners, in which membership is a mandatory condition of parcel
ownership, and which is authorized to impose assessments that, if unpaid, may become a lien on the
parcel. 4 Only HOAs whose covenants and restrictions include mandatory assessments are regulated by
ch. 720, F.S. Like a condominium or cooperative, an HOA is administered by an elected board of
directors. The powers and duties of an HOA includes the powers and duties provided in ch. 720, F.S.,
and in the governing documents of the association, which include the recorded covenants and
restrictions, together with the bylaws, articles of incorporation, and duly adopted amendments to those
documents. No state agency has direct oversight of HOAs. Florida law provides procedures and
1
S. 718.103(11), F.S.
2
S. 718.104(2), F.S.
3
S. 719.103(2)(26), F.S.
4
S. 720.301(9), F.S.
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minimum requirements for operating and provides for a mandatory binding arbitration program,
administered by the Division, only for certain election disputes.
Cooperatives as Personal and Real Property Interest
Current Situation
The building and land of a cooperative association are owned by a corporation, not the individual unit
owners. A person who purchases a cooperative unit does not receive title to the unit or any portion of
the cooperative's building or land. Instead, the purchaser receives shares of the cooperative
association and leases a unit from the association. An interest in a corporation or cooperative is
represented by the ownership of stock in the corporation.
An ownership interest in a corporation or cooperative is an interest in personal property, not real
property. 5 Generally, personal property is any object or right that is not real property, such as
automobiles, clothing, or stocks. 6
Real property is anything that is permanent, fixed, and immovable, such as land or a building. At
common law, a leasehold, even for as long as 99 years, was not considered an interest in real property.
However, a long-term leasehold interest is taxed in the same manner as a fee interest, so courts
generally regard long-term leaseholds to be an interest in real property for taxation purposes.7
In Florida, a cooperative is treated as real property for some homestead purposes. Even though the
legal definition of homestead follows the common law and requires an interest in real property to qualify
for the homestead exemption, the Florida Constitution specifically extends the exemption to a
cooperative unit. 8 Florida's homestead laws govern the cooperative for purposes of exemption from
forced sale by creditors 9 and for purposes of the exemption from ad valorem taxation. However, a
cooperative is not subject to Florida's homestead protections and is not considered real property for
purposes of devise and descent. Devise and descent is the transfer or conveyance of property by will or
inheritance. 10
In contrast, the Condominium Act specifically provides that "[a] condominium parcel created by the
declaration is a separate parcel of real property, even though the condominium is created on a
leasehold." Thus, an ownership interest in a condominium is expressly converted by statute into an
interest in real property. There is no corresponding statute in the Cooperative Act. 11 Florida courts have
recognized that there is some confusion in this area and that there is a need for clarification on whether
a cooperative ownership interest is an interest in real property or personal property. 12
Effect of the Bill
The bill provides that an interest in a cooperative unit is an interest in real property for all purposes
including devise and descent.
5 Downey v. Sur/Club Apartments, Inc., 667 So.2d 414 (Fla. 1st DCA 1996)
6
Am. Jur. 2d Property § 18.
7
Williams v. Jones, 326 So.2d 425, 433 (Fla. 1975); See generally, The Florida Bar, Practice Under Florida Probate Code Chapter 19
(9th ed. 2017).
8
Art. VII, s. 6(a), Fla. Const. ("The real estate may be held by legal or equitable title, by the entireties,jointly, in common, as a
condominium, or indirectly by stock ownership or membership representing the owner's or member's proprietary interest in a
corporation owning a fee or a leasehold initially in excess of ninety-eight years.").
9
Ss. 222.01, and 222.05, F.S.
10
Southern Walls, Inc. v. Stilwell Corp., 810 So. 2d 566, 572 (Fla. 2nd DCA 2002); Phillips v. Hirshon, 958 So. 2d 425, 430 (Fla. 3rd
DCA 2007); In re Estate ofWartels, 357 So.2d 708 (Fla. 1978); Black's Law Dictionary (11th ed. 2019).
11
S. 718.106(1), F.S; See generally Ch. 719, F.S.
12
Phillips, 958 So.2d 425; Levine v. Hirshon, 980 So.2d 1053 (Fla. 2008).
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Official Records
Current Situation
Condominiums, cooperatives, and HOAs are required to maintain official records for at least 7 years.
The official records must include:
• A copy of the articles of incorporation, declaration, bylaws, and rules of the association;
• Meeting minutes;
• A roster of all owners or members, including the electronic mailing addresses and fax numbers
of unit owners consenting to receive notice by electronic transmission;
• A copy of any contracts to which the association is a party or under which the association or the
unit owners or members have an obligation;
• Accounting records for the association;
• All contracts for work to be performed, including bids for work, materials, and equipment.
Cooperatives and HOAs are only required to maintain bids for one year;
• A copy of the plans, permits, warranties, and other items provided by the developer; and
• All other written records which are related to the operation of the association. 13
The official records for condominiums and cooperatives, but not HOAs, must also include all ballots,
sign-in sheets, voting proxies, and all other papers relating to voting by unit owners. 14
Owners may request to inspect an association's official records, and the association must make the
records available for inspection within 10 business days of receiving an inspection request. 15 A
condominium and cooperative may adopt reasonable rules regarding the frequency, time, location,
notice, and manner of record inspections. An HOA may also adopt reasonable rules regarding the
frequency, time, location, notice, and manner of record inspections, but an HOA may not require an
owner to state the reason for the inspection. 16
Effect of the Bill
The bill:
• Provides that all records that are related to a condominium association and an HOA are
considered official records;
• Mirrors condominium law to cooperative and HOA law by requiring that condominiums maintain
bids for work, materials, and equipment for one year instead of seven years;
• Mirrors condominium and cooperative law to HOA law by prohibiting a condominium or
cooperative from requiring a unit owner to state a reason for the inspection; and
• Mirrors HOA law to condominium and cooperative law by including all ballots, sign-in sheets,
voting proxies, and all other papers relating to voting by owners in the HOA's official records.
Condominium Unit Owner Insurance and Subrogation
Current Situation
A condominium association must use its best efforts to maintain insurance for the association, the
association property, and the common elements. If a condominium maintains insurance for the
association, it must have coverage for the condominium property as originally installed and all
alterations or additions made to the condominium property. 17
13 Ss. 718. l l 1(12)(a}, 719.104(2), and 720.303(4)-(5), F.S.
14 Id
15 Jd
16
S. 720.303(5), F.S.
17
S. 718.111, F.S.
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Condominium association insurance coverage does not include personal property within a unit or a
unit's limited common elements, floor, wall, ceiling coverings, electrical fixtures, appliances, water
heaters, water filters, built-in cabinets and countertops, and window treatments. Insurance coverage for
such property is the responsibility of the unit owner. 18
Subrogation is "the substitution of one party for another whose debt the party pays, entitling the paying
party to rights, remedies, or securities that would otherwise belong to the debtor." 19 In the condominium
setting, subrogation allows a unit owner's insurer to stand in the place of the unit owner whose unit has
been damaged by a negligent party. The unit owner's insurer pays the unit owner for the damage and
stands in the place of the unit owner to seek relief from the party that caused the damage, which may
be the condominium association.
Often, a condominium association's declaration may contain a clause requiring a unit owner's
insurance policy to prohibit subrogation against the condominium association. 20
Prior to 2010, Florida law prohibited a condominium unit owner's insurance policy from providing rights
of subrogation against the association. That statutory prohibition was repealed in 2010, and
subrogation against a condominium association has been permitted since that time. 21
Effect of the Bill
The bill provides that if a condominium association's insurance policy does not provide rights of
subrogation against the unit owners, then a unit owner's insurance policy may not provide rights of
subrogation against the association.
Condominium Websites
Current Situation
Condominium associations with 150 or more units that do not manage timeshare units must post
certain documents to a website that is only accessible to unit owners and employees of the
condominium association. The condominium association's website must include:
• The recorded declaration of condominium of each condominium operated by the condominium
association and each amendment to each declaration;
• The recorded bylaws of the condominium association and each amendment to the bylaws;
• The articles of incorporation of the condominium association, or other documents creating the
condominium association and each amendment thereto. The copy posted must be a copy of the
articles of incorporation filed with the Department of State;
• The rules of the condominium association;
• Any management agreement, lease, or other contract to which the condominium association is
a party or under which the condominium association or the unit owners have an obligation or
responsibility. Summaries or complete copies of bids for materials, equipment, or services must
be maintained on the website for 1 year;
• The annual budget and any proposed budget to be considered at the annual meeting;
• The financial report and any proposed financial report to be considered at a meeting;
• The certification of each director;
• All contracts or transactions between the condominium association and any director,
corporation, firm, or condominium association that is not an affiliated condominium association
18 /d
19
Aurora Loan Services LLC v. Senchuk, 36 So. 3d 716, 717 (Fla. 1st DCA 2010).
20
Gary L. Wickert & Kelsey Burazin, Subrogating Condominium Damage, Claims Journal June 4, 2015
https://www .claimsioumal.com/news/national/2015/06/04/263 728.htm (last visited Dec. 4, 2019).
21
S. 718.111(11), F.S. (2009); See Senate Analysis of2010 Senate Bill 1196 & 1222 (April 9, 2010).
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or any other entity in which an condominium association director is also a director or officer and
financially interested;
• Any contract or document regarding a conflict of interest or possible conflict of interest by a
community association manager or a board member;
• The notice of any unit owner meeting and the agenda for the meeting, posted at least 14 days
before the meeting. The notice must be posted in plain view on the front page of the website or
on a separate subpage of the website labeled "Notices" which is conspicuously visible and
linked on the front page; and
• Any documents to be considered during a meeting or listed on the agenda for a meeting. These
must be posted at least 7 days before the meeting where the document will be considered. 22
Effect of the Bill
The bill allows a condominium association to post the required documents on a mobile application
downloadable to a mobile device instead of on a website.
Condominium Term Limits
Current Situation
Condominium association board members serve one-year terms, but a board member may serve a 2-
year term if the association's bylaws or articles of incorporation allow it. 23
In 2017, the Legislature passed a law prohibiting a condominium association board member from
serving more than 4 consecutive 2-year terms unless his or her continued service is approved by two-
thirds of the total voting interests or there are not enough eligible candidates to fill the vacancies on the
board. 24
In 2018, the Legislature amended the term limit provision for condominium board members to clarify
that a board member could not serve more than 8 consecutive years instead of 4 consecutive 2-year
terms. 25 Questions from the public remain about whether time served on a board prior to the enactment
of the term limit provision count toward the 8-year maximum. 26
Effect of the Bill
The bill provides that only service on a condominium's board of directors as a result of an election or
appointment that occurred after July 1, 2018, counts towards a board member's 8-year term limit.
Condominium Transfer Costs
Current Situation
A condominium association may not charge a potential buyer or renter costs or fees in connection with
the sale, lease, or sublease, or other transfer of a unit unless:
• The fee is limited to $100 or less;
• The fee is provided for in the association's governing documents; and
22 S. 718.l l 1(12)(g), F.S.
23
S. 718.l 12(2)(d), F.S.
24
See House Analysis of2017 House Bill 1237 (July 5, 2017).
25
See House Analysis of2018 House Bill 841 (Mar. 27, 2018).
26
David G. Muller, ls new term limit restriction retroactive, Naples Daily News (Sept. 15, 2018)
https://www.naplesnews.com/story/money/real-estate/2018/09/15/new-term-limit-restriction-retroactive/ 1259991002/ (last visited
Dec. 4, 2019).
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• The association approves the sale, lease, sublease, or transfer. 27
A condominium association may require a potential renter to provide the association a security deposit
equivalent to one month of rent. The association must place the security deposit in an escrow account
maintained by the association. 28
Effect of the Bill
The bill provides that in addition to a $100 administrative fee, a condominium association may charge a
potential buyer or renter the actual cost to perform any background check or screening in connection
with the sale, mortgage, lease, sublease, or other transfer of a unit.
Condominium Service Providers Conflicts of Interest
Current Situation
Prior to 2017, a condominium association could sign a contract for maintenance or management
services with an entity in which a member of the association's board of directors had a financial
interest. The contract had to disclose the board member's financial interest, and a discussion of the
financial interest had to be in the minutes of the meeting at which the vote to authorize the contract was
held. Any contract that failed to disclose such interest was unenforceable. 29 The contract also had to be
affirmed by a two-thirds vote of the members of the board of directors present. The board member with
a financial interest in the entity could not participate in the vote. 30
In 2017, the Legislature passed a law prohibiting a condominium association from employing or
contracting with any service provider in which a board member, or a relative of a board member within
the third degree of consanguinity by blood or marriage, has a financial interest. This restriction does not
apply if the board member or relative owns less than 1 percent of the equity shares of the service
provider or to timeshare condominiums. 31
Effect of the Bill
The bill repeals the provision prohibiting a condominium association from employing or contracting with
any service provider in which a board member or a relative of a board member has a financial
relationship. However, the bill maintains the provision requiring a board member's financial interest be
disclosed in the contract with the association, and in the minutes of the meeting at which the board
votes on the contract. Any contract that fails to disclose such interest is unenforceable. The contract
also requires an affirmative vote of two-thirds of the board of directors present and prohibits a board
member with a financial interest from participating in the vote.
Condominium Electric Car Charging Stations
Current Situation
In 2018, the Legislature passed a law prohibiting a condominium association from preventing a unit
owner from installing an electric vehicle charging station within the boundaries of the unit owner's
limited common element parking area. The electricity charges for the station must be separately
metered by the unit owner. 32
27
S. 718.112(2)(i), F.S.
2e Id.
29
S. 718.3026(3), F.S.
3o Id.
31
See House Analysis, supra note 24.
32
See House Analysis, supra note 25.
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Effect of the Bill
The bill prohibits a condominium association from prohibiting a unit owner from installing an electric
vehicle charging station within the boundaries of the unit owner's exclusively designated parking area,
in addition to a unit owner's limited common element parking area.
The bill also allows a unit owner to use an embedded meter to meter the electricity used by an electric
vehicle charging station, instead of having the charging station separately metered.
Condominium and HOA Fines and Suspensions
Current Situation
Condominium associations and HOAs may levy fines against or suspend the right of an owner,
occupant, or a guest of an owner or occupant, to use the common elements for failing to comply with
any provision in the association's declaration, bylaws, or rules. 33
A board may not impose a fine or suspension unless it gives at least 14 days' written notice of the
imposed fine or suspension, and the opportunity for a hearing. The hearing must be held before a
committee of unit or parcel owners who are not board members or residing in a board member's
household. The role of the committee is to determine whether to confirm or reject the fine or
suspension. 34
A fine approved by the committee must be paid to the association five days after the date of the
committee meeting. The condominium or HOA must provide written notice of any fine or suspension by
mail or hand delivery to the unit owner and, if applicable, to any tenant, licensee, or guest of the unit
owner. 35
Effect of the Bill
The bill provides that if a fine is approved by the committee, it must be paid to the association five days
after notice of the approved fine is sent to the unit or parcel owner and if applicable, to any tenant,
licensee, or invitee of the owner, instead of five days after the meeting approving the fine.
Notice of Elections for Condominium Associations
Current Situation
Condominium Associations are required to mail, deliver, or electronically transmit notice of an election
to unit owners at least 60 days before the election. Condominium associations are also required to mail,
deliver, or electronically transmit a second notice of election to the unit owners along with a ballot that
lists all the candidates. However, no exact time is currently specified for the provision of the second
notice. 36
Effect of the Bill
The bill provides that the second notice must be mailed, delivered, or electronically transmitted to unit
owners not less than 14 days or more than 34 days prior to the election.
33 Ss. 718.303(3) & 720.305(2)(a), F.S.
34 Id.
35 Id.
36
S. 718.l 12(2)(d), F.S.
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Notice of Meetings for Condominium Associations
Current Situation
A condominium association must provide written notice for the association's annual meeting. The
notice must include an agenda, and must be mailed, delivered, or electronically transmitted to each unit
owner at least 14 days before the annual meeting. The notice must also be posted in a conspicuous
place on condominium property for at least 14 continuous days before the annual meeting. Instead of
posting the notice in a conspicuous place, a condominium may repeatedly broadcast the notice and
agenda on a closed-circuit cable television system serving the association. 37
Effect of the Bill
The bill provides that the requirements to provide written notice to each owner and conspicuously post
such notice applies to all unit owner meetings instead of just the annual meeting.
The bill also provides that except for the annual meeting, the time-period that a condominium
association must serve notice of meetings to the owners and conspicuously post such notice is
determined by the association's bylaws. If the bylaws are silent, the notice must be sent to the unit
owners and conspicuously posted at least 14 days before the meeting.
Notice of Meetings for HOAs
Current Situation
HOAs must notice all board meetings by posting notice in a conspicuous place on the HOA's property
for at least 48 hours. Notice must be posted 14 days before meetings where a nonemergency special
assessment or an amendment to the rules regarding parcel use is considered. 38
HOAs are required to notice all member meetings by mailing, hand delivering, or electronically
transmitting notice before the meeting. They must also post notice in a conspicuous place before the
meeting. If an HOA opts to broadcast notice in lieu of posting notice, it must do so at least four times
during every broadcast hour of each day. 39 Additionally, when notice of an HOA meeting is mailed or
delivered to an owner's address it must be sent to the address identified as the parcel owner's mailing
address on the property appraiser's website for the county in which the owner's parcel is located. 40
In 2018, the Legislature passed a law allowing condominium and cooperatives to adopt rules for
noticing all board and owner meetings on a website if the time requirements for physically posting the
board meetings are met. Any rule adopted for website notice must include a requirement that the
association send an electronic notice providing a hyperlink to the website where the notice is posted, to
all unit owners whose email addresses are part of the official records, and in the same manner as
notice for a meeting of the members. Notice by website does not remove the requirement to comply
with the other notice requirements. 41
Effect of the Bill
The bill amends HOA law to mirror condominium and cooperative law by allowing HOAs to adopt rules
for noticing all board and owner meetings on a website if the time requirements for physically posting
the meetings are met. Any rule adopted for website notice must include a requirement that the
37
S. 718.l 12(d), F.S.
38
Ss. 718.112(2), 719.106(1), & 720.303(2)(c), F.S.
39 [d
40
S. 720.306(l)(g), F.S.
41
See House Analysis, supra note 25.
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association send an electronic notice providing a hyperlink to the website where the notice is posted, to
all parcel owners whose email addresses are part of the official records, and in the same manner as
notice for a meeting of the members. Notice by website must be in addition to the other notice
requirements.
The bill also provides that when notice of a meeting is mailed or delivered to an owner's address it must
be sent to the address identified as the parcel owner's mailing address in the HOA's official records,
instead of the address identified as the parcel's owner's mailing address on the property appraiser's
website.
Cooperative Associations Video Conferencing
Current Situation
Cooperative association board members and committee members may attend meetings by telephone.
If board members or committee members attend a meeting by a telephone, a telephone speaker must
be used so the members may be heard by the rest of the board, committee, or any unit owners in
attendance. 42
Effect of the Bill
The bill provides that cooperative association board members and committee members may attend
meetings by telephone, real time video conferencing, or by using a similar real-time electronic or video
communication. If board members or committee members attend a meeting by telephone, video, or
electronic or video communication, a speaker must be used so the members may be heard by the rest
of the board, committee, or any unit owners in attendance.
HOA Swimming Pools
Current Situation
The Department of Health (DOH) is responsible for the oversight and regulation of water quality and
safety of public swimming pools in Florida under ch. 514, F.S. Inspections and permitting for swimming
pools are conducted by the county health departments. In order to operate or continue to operate a
public swimming pool, a valid operating permit from DOH must be obtained. If DOH determines that the
public swimming pool is, or may reasonably be expected to be, operated in compliance with state laws
and rules, DOH will issue a permit. However, if it is determined that the pool is not in compliance with
state laws and rules, the application for a permit will be denied. 43
Pools that are used by condominiums or cooperatives with 32 units or less and which are not being
operated as public lodging establishments are exempt from DOH's requirements for public pools. 44
HOA pools are not exempt from DOH regulation even where the HOA has 32 homes or less.
Effect of the Bill
The bill provides that pools for HOAs and other property associations that have 32 parcels or less and
are not being operated as public lodging establishments are also exempt from DOH's requirements for
public pools.
42 S. 719.106(1)(b), F.S.
43
S. 514.031(1), F.S.
44
S. 514.0115(2), F.S.
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Condominium Ombudsman
Current Situation
Within the Division is housed the Office of the Condominium Ombudsman (Ombudsman). The
Ombudsman is an attorney appointed by the Governor and a neutral resource for unit owners and
condominium associations. The Ombudsman is authorized to prepare and issue reports and
recommendations to the Governor, the Division, and the Legislature on any matter or subject within the
jurisdiction of the Division. In addition, the Ombudsman may make recommendations to the Division for
changes in rules and procedures for the filing, investigation, and resolution of complaints. 45
The Ombudsman also acts as a liaison between the Division, unit owners, and condominium
associations and is responsible for developing policies and procedures to help affected parties
understand their rights and responsibilities. 46
The Ombudsman is required to keep his or her principal office in Leon County.
Effect of the Bill
The bill deletes the requirement that the Ombudsman keep his or her principal office in Leon County.
The Fourteenth Amendment of the U.S. Constitution and Article II of the Florida Constitution
Current Situation
Section 1 of the Fourteenth Amendment of the U.S. Constitution provides that: 47
• Every person born or naturalized in the U.S. is a citizen of the U.S. and the state where they
live;
• Every person has equal protection of the laws;
• No state may curtail the privileges or immunities of citizens;
• No state may deprive any person of life, liberty, or property without due process.
The Fourteenth Amendment only applies to the states and not private parties. However, the United
States Supreme Court ruled that a racially restrictive private covenant in a land deed is a violation of
the Fourteenth Amendment. The Supreme Court determined that even though the restrictive covenant
was between private parties a state court was the entity that had to enforce the covenant, and therefore
the covenant violated the Fourteenth amendment. 48
According to news articles, residents in Florida and across the country have discovered old restrictions
and covenants in deeds and community association governing documents that prohibit minorities from
owning or renting property. These restrictions cannot be enforced because they violate the Fourteenth
Amendment as well as the Federal Fair Housing Act and the Florida Fair Housing Act, which applies if
the property is in Florida. 49 However, these restrictions and covenants can be difficult to remove. 50
45
Ss. 718.5011 & 718.5012, F.S.
46 Id
47
U.S. Const. amend. XIV, §1.
48
Shelley v. Kramer, 68 S.Ct. 836 (U.S. 1948).
49
The Federal Fair Housing Act and the Florida Fair Housing Act prohibit discrimination in home sales, financing, and rentals based
on race, color, sex, pregnancy, disability, nationality, religion, and familial status. See 42 U.S.C. § 3601-189; See Ch. 760, part II, F.S.
50
TaMaryn Waters, Attorney Wants outdated, racist covenant language in Betton Hills stripped, Tallahassee Democrat (July 1, 2019)
https://www .tallahassee.com/story/news/money/2019/07/01 /attomey-wants-outdated-racist-covenant-Ianguage-betton-hills-stripped-
tallahassee/ 1546406001 / (last visited Dec. 3, 2019); Judy L. Thomas, 'Curse of covenant' persists -restrictive rules, while
unenforceable, have lingering legacy, The Kansas City Star (July 27, 2016)
https://www.kansascity.com/news/Iocal/article92156112.html (last visited Dec. 3, 2019); Rachel Spacek, 'No persons other than
persons of the White race': Racist language remains in older Idaho homes' documents, Idaho Press (Nov. 5, 2019)
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Article II of the Florida Constitution is made up of the following nine sections: 51
• Section 1. State boundaries.
• Section 2. Seat of government.
• Section 3. Branches of government.
• Section 4. State seal and flag.
• Section 5. Public officers.
• Section 6. Enemy attack.
• Section 7. Natural resources and scenic beauty.
• Section 8. Ethics in government.
• Section 9. English is the official language of Florida.
Effect of the Bill
The bill restates that any provision in a community association's declaration, bylaws, or rules that
violates any right under the Fourteenth Amendment of the U.S. Constitution or article II of the Florida
Constitution is void and unenforceable, and no action is required by an association to remove or amend
such provisions because they cannot be enforced.
The bill also provides that a community association may record a notice in the county in which it is
located indicating that it does not intend to enforce any regulation in its declaration, bylaws, or rules that
infringes on the Fourteenth Amendment of the U.S. constitution or article II of the Florida Constitution.
However, the failure to record notice may not be the basis for liability or evidence of discrimination or an
intent to discriminate by the association.
B. SECTION DIRECTORY:
Section 1: Amends s. 514.0015, F.S., providing that certain property association pools are exempt from
regulation.
Section 2: Amends s. 627.714, F.S., prohibiting condominium unit owner's insurance policies from
having certain subrogation rights.
Section 3: Amends s. 718.111, F.S., amending the official records for a condominium association.
Section 4: Amends s. 718.112, F.S, prohibiting certain provisions, authorizing certain notice, amending
board member term limits, required notices, transfer costs, and repealing the prohibition of certain
contracts.
Section 5: Amends s. 718.113, F.S., amending the requirement for electric car charging stations.
Section 6: Amends s. 718.303, F.S., amending condominium association fines.
Section 7: Amends s. 718.5014, F.S., relating to ombudsman location.
Section 8: Amends s. 719.103, F.S., amending the definition of a cooperative unit.
Section 9: Amends s. 719.104, F.S., amending the official records for a cooperative.
https://www.idahopress.com/news/local/no-persons-other-than-persons-of-the-white-race-racist/article 167d 13e 1-59ce-5ffi3-b 1e 1-
771709da5e4b.html (last visited Dec. 4, 2019).
51
Art. II, Fla. Const.
STORAGE NAME: h0623a.BPS.DOCX PAGE: 12
DATE: 12/10/2019
Section 10: Amends s. 719.106, F.S., amending video conferencing rules for meetings, prohibiting
certain provisions, and authorizing certain notice.
Section 11: Amends s. 720.303, F.S., amending HOA notice requirements and official records.
Section 12: Amends s. 720.305, F.S., amending the requirements for fining HOA members.
Section 13: Amends s. 720.306, F.S., amending HOA notice requirements.
Section 14: Amends s. 720.3075, F.S, prohibiting certain provisions and authorizing certain notice.
Section 15: Providing an effective date of July 1, 2020.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
See Fiscal Comments.
2. Expenditures:
See Fiscal Comments.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
It is unknown if prohibiting condominium owners' insurance policies from providing rights of subrogation
against the association will increase or decrease the cost of condominium unit owners' insurance
policies.
D. FISCAL COMMENTS:
It is unknown whether the change in classification of cooperatives from personal to real property for the
purpose of estate taxes or laws related to devise and descent will have an impact on state revenue.
Ill. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
None.
2. Other:
None.
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DATE: 12/10/2019
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
The bill provides that any community association's declaration, bylaws, or rules that violates any right
under article II of the Florida Constitution are void and unenforceable. However, article II of the Florida
Constitution is made up of general provisions that do not appear to relate to equal protection rights.
It is likely a scrivener's error. The sponsor likely meant to reference article I, section 2 of the Florida
Constitution. Section II of article I of the Florida Constitution is similar to the Fourteenth Amendment in
the U.S. Constitution, and it establishes the basic rights of all natural persons in Florida and provides
that all natural persons in Florida: 52
• Are equal before the law;
• Have inalienable rights including:
o the right to enjoy and defend life and liberty;
o the right to pursue happiness;
o the right to be rewarded for industry; and
o the right to acquire, possess, and protect property.
• May not be deprived of any right because of race, religion, national origin, or physical disability.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
52
Art. I, s. 2, Fla. Const.
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1 A bill to be entitled
2 An act relating to community associations; amending s.
3 514.0115, F.S.; exempting certain property association
4 pools from Department of Health regulations; amending
5 s. 627.714, F.S.; prohibiting subrogation rights
6 against a condominium association under certain
7 circumstances; amending s. 718.111, F.S.; requiring
8 certain records to be maintained for a specified time;
9 prohibiting an association from requiring certain
10 actions related to the inspection of records; revising
11 requirements relating to certain condominium
12 associations posting digital copies of certain
13 documents; amending s. 718.112, F.S.; prohibiting
14 certain provisions in governing documents; authorizing
15 the association to record certain notice in the public
16 record; limiting liability; specifying that only board
17 service that occurs on or after a specified date may
18 be used for calculating a board member's term limit;
19 providing requirements for certain notices;
20 prohibiting an association from charging certain fees;
21 providing an exception; deleting a prohibition against
22 employing or contracting with certain service
23 providers; amending s. 718.113, F.S.; revising
24 regulations for electric vehicles; amending s.
25 718.303, F.S.; revising requirements for certain
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26 actions for failure to comply with specified
27 provisions; revising requirements for certain fines;
28 amending s. 718.5014, F.S.; revising the location of
29 the principal office of the Office of the Condominium
30 Ombudsman; amending s. 719.103, F.S.; revising the
31 definition of the term "unit" to specify that an
32 interest in a cooperative unit is an interest in real
33 property; amending s. 719.104, F.S.; prohibiting an
34 association from requiring certain actions related to
35 the inspection of records; amending s. 719.106, F.S.;
36 revising provisions related to a quorum and voting
37 rights for members remotely participating in meetings;
38 prohibiting certain provisions in governing documents;
39 authorizing the association to record certain notice
40 in the public record; limiting liability; amending s.
41 720.303, F.S.; authorizing an association to adopt
42 procedures for electronic meeting notices; revising
43 the documents that constitute the official records of
44 an association; amending s. 720.305, F.S.; providing
45 requirements for certain fines; amending s. 720.306,
46 F.S.; revising requirements for providing certain
47 notices; amending s. 720.3075, F.S.; prohibiting
48 certain provisions in governing documents; authorizing
49 the association to record certain notice in the public
50 record; limiting liability; providing an effective
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51 date.
52
53 Be It Enacted by the Legislature of the State of Florida:
54
55 Section 1. Paragraph (a) of subsection (2) of section
56 514.0115, Florida Statutes, is amended to read:
57 514.0115 Exemptions from supervision or regulation;
58 variances.-
59 (2) (a) Pools serving condominium, cooperative, and
60 homeowners' associations, as well as other property
61 associations, which have no more than 32 condominium or
62 cooperative units or parcels and which are not operated as a
63 public lodging establishments are establishment shall be exempt
64 from supervision under this chapter, except for water quality.
65 Section 2. Subsection (4) of section 627.714, Florida
66 Statutes, is amended to read:
67 627.714 Residential condominium unit owner coverage; loss
68 assessment coverage required.-
69 (4) Every individual unit owner's residential property
70 policy must contain a provision stating that the coverage
71 afforded by such policy is excess coverage over the amount
72 recoverable under any other policy covering the same property.
73 If a condominium association's insurance policy does not provide
74 rights for subrogation against the unit owners in the
75 association, an insurance policy issued to an individual unit
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76 owner located in the association may not provide rights of
77 subrogation against the condominium association.
78 Section 3. Paragraphs (a), (b), (c), and (g) of subsection
79 (12) of section 718.111, Florida Statutes, are amended to read:
80 718.111 The association.-
Bl (12) OFFICIAL RECORDS.-
82 (a) From the inception of the association, the association
83 shall maintain each of the following items, if applicable, which
84 constitutes the official records of the association:
85 1. A copy of the plans, permits, warranties, and other
86 items provided by the developer pursuant to s. 718.301(4).
87 2. A photocopy of the recorded declaration of condominium
88 of each condominium operated by the association and each
89 amendment to each declaration.
90 3. A photocopy of the recorded bylaws of the association
91 and each amendment to the bylaws.
92 4. A certified copy of the articles of incorporation of
93 the association, or other documents creating the association,
94 and each amendment thereto.
95 5. A copy of the current rules of the association.
96 6. A book or books that contain the minutes of all
97 meetings of the association, the board of administration, and
98 the unit owners.
99 7. A current roster of all unit owners and their mailing
100 addresses, unit identifications, voting certifications, and, if
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101 known, telephone numbers. The association shall also maintain
102 the e-mail addresses and facsimile numbers of unit owners
103 consenting to receive notice by electronic transmission. Thee-
104 mail addresses and facsimile numbers are not accessible to unit
105 owners if consent to receive notice by electronic transmission
106 is not provided in accordance with sub-subparagraph (c)3.e.
107 However, the association is not liable for an inadvertent
108 disclosure of the e-mail address or facsimile number for
109 receiving electronic transmission of notices.
110 8. All current insurance policies of the association and
111 condominiums operated by the association.
112 9. A current copy of any management agreement, lease, or
113 other contract to which the association is a party or under
114 which the association or the unit owners have an obligation or
115 responsibility.
116 10. Bills of sale or transfer for all property owned by
117 the association.
118 11. Accounting records for the association and separate
119 accounting records for each condominium that the association
120 operates. Any person who knowingly or intentionally defaces or
121 destroys such records, or who knowingly or intentionally fails
122 to create or maintain such records, with the intent of causing
123 harm to the association or one or more of its members, is
124 personally subject to a civil penalty pursuant to s.
125 718.501(1) (d). The accounting records must include, but are not
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126 limited to:
127 a. Accurate, itemized, and detailed records of all
128 receipts and expenditures.
129 b. A current account and a monthly, bimonthly, or
130 quarterly statement of the account for each unit designating the
131 name of the unit owner, the due date and amount of each
132 assessment, the amount paid on the account, and the balance due.
133 c. All audits, reviews, accounting statements, and
134 financial reports of the association or condominium.
135 d. All contracts for work to be performed. Bids for work
136 to be performed are also considered official records and must be
137 maintained by the association for at least 1 year after receipt
138 of the bid.
139 12. Ballots, sign-in sheets, voting proxies, and all other
140 papers and electronic records relating to voting by unit owners,
141 which must be maintained for 1 year from the date of the
142 election, vote, or meeting to which the document relates,
143 notwithstanding paragraph (b) .
144 13. All rental records if the association is acting as
145 agent for the rental of condominium units.
146 14. A copy of the current question and answer sheet as
147 described ins. 718.504.
148 1§. All other written records of the association not
149 specifically included in the foregoing which arc related to the
150 operation of the association.
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151 15.-±-6--. A copy of the inspection report as described ins.
152 718.301(4) (p).
153 16 . .:i:-+-. Bids for materials, equipment, or services.
154 17. All other records of the association not specifically
155 included in subparagraphs 1.-16. which are related to the
156 operation of the association.
157 (b) The official records specified in subparagraphs (a)l.-
158 6. must be permanently maintained from the inception of the
159 association. Bids for work to be performed or for materials,
160 equipment, or services must be maintained for at least 1 year
161 after receipt of the bid. All other official records must be
162 maintained within the state for at least 7 years, unless
163 otherwise provided by general law. The records of the
164 association shall be made available to a unit owner within 45
165 miles of the condominium property or within the county in which
166 the condominium property is located within 10 working days after
167 receipt of a written request by the board or its designee.
168 However, such distance requirement does not apply to an
169 association governing a timeshare condominium. This paragraph
170 may be complied with by having a copy of the official records of
171 the association available for inspection or copying on the
172 condominium property or association property, or the association
173 may offer the option of making the records available to a unit
174 owner electronically via the Internet or by allowing the records
175 to be viewed in electronic format on a computer screen and
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176 printed upon request. The association is not responsible for the
177 use or misuse of the information provided to an association
178 member or his or her authorized representative in pursuant to
179 -t-fie- compliance with requireffients of this chapter unless the
180 association has an affirmative duty not to disclose such
181 information under pursuant to this chapter.
182 (c)l. The official records of the association are open to
183 inspection by any association member or the authorized
184 representative of such member at all reasonable times. The right
185 to inspect the records includes the right to make or obtain
186 copies, at the reasonable expense, if any, of the member or
187 authorized representative of such member. A renter of a unit has
188 a right to inspect and copy the association's bylaws and rules.
189 The association may adopt reasonable rules regarding the
190 frequency, time, location, notice, and manner of record
191 inspections and copying, but may not require a member to
192 demonstrate any purpose or state any reason for the inspection.
193 The failure of an association to provide the records within 10
194 working days after receipt of a written request creates a
195 rebuttable presumption that the association willfully failed to
196 comply with this paragraph. A unit owner who is denied access to
197 official records is entitled to the actual damages or minimum
198 damages for the association's willful failure to comply. Minimum
199 damages are $50 per calendar day for up to 10 days, beginning on
200 the 11th working day after receipt of the written request. The
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201 failure to permit inspection entitles any person prevailing in
202 an enforcement action to recover reasonable attorney fees from
203 the person in control of the records who, directly or
204 indirectly, knowingly denied access to the records.
205 2. Any person who knowingly or intentionally defaces or
206 destroys accounting records that are required by this chapter to
207 be maintained during the period for which such records are
208 required to be maintained, or who knowingly or intentionally
209 fails to create or maintain accounting records that are required
210 to be created or maintained, with the intent of causing harm to
211 the association or one or more of its members, is personally
212 subject to a civil penalty under pursuant to s. 718.501(1) (d)
213 3. The association shall maintain an adequate number of
214 copies of the declaration, articles of incorporation, bylaws,
215 and rules, and all amendments to each of the foregoing, as well
216 as the question and answer sheet as described ins. 718.504 and
217 year-end financial information required under this section, on
218 the condominium property to ensure their availability to unit
219 owners and prospective purchasers, and may charge its actual
220 costs for preparing and furnishing these documents to those
221 requesting the documents. An association shall allow a member or
222 his or her authorized representative to use a portable device,
223 including a smartphone, tablet, portable scanner, or any other
224 technology capable of scanning or taking photographs, to make an
225 electronic copy of the official records in lieu of the
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226 association's providing the member or his or her authorized
227 representative with a copy of such records. The association may
228 not charge a member or his or her authorized representative for
229 the use of a portable device. Notwithstanding this paragraph,
230 the following records are not accessible to unit owners:
231 a. Any record protected by the lawyer-client privilege as
232 described ins. 90.502 and any record protected by the work-
233 product privilege, including a record prepared by an association
234 attorney or prepared at the attorney's express direction, which
235 reflects a mental impression, conclusion, litigation strategy,
236 or legal theory of the attorney or the association, and which
237 was prepared exclusively for civil or criminal litigation or for
238 adversarial administrative proceedings, or which was prepared in
239 anticipation of such litigation or proceedings until the
240 conclusion of the litigation or proceedings.
241 b. Information obtained by an association in connection
242 with the approval of the lease, sale, or other transfer of a
243 unit.
244 c. Personnel records of association or management company
245 employees, including, but not limited to, disciplinary, payroll,
246 health, and insurance records. For purposes of this sub-
247 subparagraph, the term "personnel records" does not include
248 written employment agreements with an association employee or
249 management company, or budgetary or financial records that
250 indicate the compensation paid to an association employee.
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251 d. Medical records of unit owners.
252 e. Social security numbers, driver license numbers, credit
253 card numbers, e-mail addresses, telephone numbers, facsimile
254 numbers, emergency contact information, addresses of a unit
255 owner other than as provided to fulfill the association's notice
256 requirements, and other personal identifying information of any
257 person, excluding the person's name, unit designation, mailing
258 address, property address, and any address, e-mail address, or
259 facsimile number provided to the association to fulfill the
260 association's notice requirements. Notwithstanding the
261 restrictions in this sub-subparagraph, an association may print
262 and distribute to unit parcel owners a directory containing the
263 name, unit parcel address, and all telephone numbers of each
264 unit parcel owner. However, an owner may exclude his or her
265 telephone numbers from the directory by so requesting in writing
266 to the association. An owner may consent in writing to the
267 disclosure of other contact information described in this sub-
268 subparagraph. The association is not liable for the inadvertent
269 disclosure of information that is protected under this sub-
270 subparagraph if the information is included in an official
271 record of the association and is voluntarily provided by an
272 owner and not requested by the association.
273 f. Electronic security measures that are used by the
274 association to safeguard data, including passwords.
275 g. The software and operating system used by the
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276 association which allow the manipulation of data, even if the
277 owner owns a copy of the same software used by the association.
278 The data is part of the official records of the association.
279 (g)l. By January 1, 2019, an association managing a
280 condominium with 150 or more units which does not contain
281 timeshare units shall post digital copies of the documents
282 specified in subparagraph 2. on its website or make such
283 documents available through an application that can be
284 downloaded on a mobile device.
285 a. The association's website or application must be:
286 (I) An independent website, application, or web portal
287 wholly owned and operated by the association; or
288 (II) A website, application, or web portal operated by a
289 third-party provider with whom the association owns, leases,
290 rents, or otherwise obtains the right to operate a web page,
291 subpage, web portal, er collection of subpages or web portals~
292 or application which is dedicated to the association's
293 activities and on which required notices, records, and documents
294 may be posted or made available by the association.
295 b. The association's website or application must be
296 accessible through the Internet and must contain a subpage, web
297 portal, or other protected electronic location that is
298 inaccessible to the general public and accessible only to unit
299 owners and employees of the association.
300 c. Upon a unit owner's written request, the association
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301 must provide the unit owner with a username and password and
302 access to the protected sections of the association's website or
303 application that contain any notices, records, or documents that
304 must be electronically provided.
305 2. A current copy of the following documents must be
306 posted in digital format on the association's website or
307 application:
308 a. The recorded declaration of condominium of each
309 condominium operated by the association and each amendment to
310 each declaration.
311 b. The recorded bylaws of the association and each
312 amendment to the bylaws.
313 c. The articles of incorporation of the association, or
314 other documents creating the association, and each amendment to
315 the articles of incorporation or other documents thereto. The
316 copy posted pursuant to this sub-subparagraph must be a copy of
317 the articles of incorporation filed with the Department of
318 State.
319 d. The rules of the association.
320 e. A list of all executory contracts or documents to which
321 the association is a party or under which the association or the
322 unit owners have an obligation or responsibility and, after
323 bidding for the related materials, equipment, or services has
324 closed, a list of bids received by the association within the
325 past year. Summaries of bids for materials, equipment, or
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326 services which exceed $500 must be maintained on the website or
327 application for 1 year. In lieu of summaries, complete copies of
328 the bids may be posted.
329 f. The annual budget required by s. 718.112 (2) (f) and any
330 proposed budget to be considered at the annual meeting.
331 g. The financial report required by subsection (13) and
332 any monthly income or expense statement to be considered at a
333 meeting.
334 h. The certification of each director required bys.
335 718.112(2) (d)4.b.
336 i. All contracts or transactions between the association
337 and any director, officer, corporation, firm, or association
338 that is not an affiliated condominium association or any other
339 entity in which an association director is also a director or
340 officer and financially interested.
341 j. Any contract or document regarding a conflict of
342 interest or possible conflict of interest as provided in ss.
343 4 6 8 . 4 3 6 ( 2) (b) 6. and 718 . 3 0 2 7 ( 3) .
344 k. The notice of any unit owner meeting and the agenda for
345 the meeting, as required bys. 718.112(2) (d)3., no later than 14
346 days before the meeting. The notice must be posted in plain view
347 on the front page of the website or application, or on a
348 separate subpage of the website or application labeled "Notices"
349 which is conspicuously visible and linked from the front page.
350 The association must also post on its website or application any
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351 document to be considered and voted on by the owners during the
352 meeting or any document listed on the agenda at least 7 days
353 before the meeting at which the document or the information
354 within the document will be considered.
355 l. Notice of any board meeting, the agenda, and any other
356 document required for the meeting as required bys.
357 718 .112 (2) (c), which must be posted no later than the date
358 required for notice under pursuant to s. 718.112(2) (c).
359 3. The association shall ensure that the information and
360 records described in paragraph (c), which are not allowed to be
361 accessible to unit owners, are not posted on the association's
362 website or application. If protected information or information
363 restricted from being accessible to unit owners is included in
364 documents that are required to be posted on the association's
365 website or application, the association shall ensure the
366 information is redacted before posting the documents online.
367 Notwithstanding the foregoing, the association or its agent is
368 not liable for disclosing information that is protected or
369 restricted under pursuant to this paragraph unless such
370 disclosure was made with a knowing or intentional disregard of
371 the protected or restricted nature of such information.
372 4. The failure of the association to post information
373 required under subparagraph 2. is not in and of itself
374 sufficient to invalidate any action or decision of the
375 association's board or its committees.
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376 Section 4. Paragraphs ( d) , ( i) , and (p) of subsection ( 2)
377 of section 718.112, Florida Statutes, are amended, and paragraph
378 (c) of subsection (1) is added to that section, to read:
379 718.112 Bylaws.-
380 (1) GENERALLY.-
381 (c) Any provision of the declaration, the association
382 bylaws, or reasonable rules or regulations of the association
383 which diminish or infringe upon any right protected under the
384 Fourteenth Amendment to the United States Constitution or Art.
385 II of the State Constitution is void and unenforceable without
386 further action of the association. The association may record a
387 notice in the public records of the county in which the
388 condominium is located evidencing its intention to not enforce
389 such provision. The failure of the association to record a
390 notice in the public record may not be the basis for liability
391 or evidence of discrimination or a discriminatory intention.
392 (2) REQUIRED PROVISIONS.-The bylaws shall provide for the
393 following and, if they do not do so, shall be deemed to include
394 the following:
395 (d) Unit owner meetings.-
396 1. An annual meeting of the unit owners must be held at
397 the location provided in the association bylaws and, if the
398 bylaws are silent as to the location, the meeting must be held
399 within 45 miles of the condominium property. However, such
400 distance requirement does not apply to an association governing
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401 a timeshare condominium.
402 2. Unless the bylaws provide otherwise, a vacancy on the
403 board caused by the expiration of a director's term must be
404 filled by electing a new board member, and the election must be
405 by secret ballot. An election is not required if the number of
406 vacancies equals or exceeds the number of candidates. For
407 purposes of this paragraph, the term "candidate" means an
408 eligible person who has timely submitted the written notice, as
409 described in sub-subparagraph 4.a., of his or her intention to
410 become a candidate. Except in a timeshare or nonresidential
411 condominium, or if the staggered term of a board member does not
412 expire until a later annual meeting, or if all members' terms
413 would otherwise expire but there are no candidates, the terms of
414 all board members expire at the annual meeting, and such members
415 may stand for reelection unless prohibited by the bylaws. Board
416 members may serve terms longer than 1 year if permitted by the
417 bylaws or articles of incorporation. A board member may not
418 serve more than 8 consecutive years unless approved by an
419 affirmative vote of unit owners representing two-thirds of all
420 votes cast in the election or unless there are not enough
421 eligible candidates to fill the vacancies on the board at the
422 time of the vacancy. Only board service that occurs on or after
423 July 1, 2018, may be used when calculating a board member's term
424 limit. If the number of board members whose terms expire at the
425 annual meeting equals or exceeds the number of candidates, the
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426 candidates become members of the board effective upon the
427 adjournment of the annual meeting. Unless the bylaws provide
428 otherwise, any remaining vacancies shall be filled by the
429 affirmative vote of the majority of the directors making up the
430 newly constituted board even if the directors constitute less
431 than a quorum or there is only one director. In a residential
432 condominium association of more than 10 units or in a
433 residential condominium association that does not include
434 timeshare units or timeshare interests, co-owners of a unit may
435 not serve as members of the board of directors at the same time
436 unless they own more than one unit or unless there are not
437 enough eligible candidates to fill the vacancies on the board at
438 the time of the vacancy. A unit owner in a residential
439 condominium desiring to be a candidate for board membership must
440 comply with sub-subparagraph 4.a. and must be eligible to be a
441 candidate to serve on the board of directors at the time of the
442 deadline for submitting a notice of intent to run in order to
443 have his or her name listed as a proper candidate on the ballot
444 or to serve on the board. A person who has been suspended or
445 removed by the division under this chapter, or who is delinquent
446 in the payment of any monetary obligation due to the
447 association, is not eligible to be a candidate for board
448 membership and may not be listed on the ballot. A person who has
449 been convicted of any felony in this state or in a United States
450 District or Territorial Court, or who has been convicted of any
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451 offense in another jurisdiction which would be considered a
452 felony if committed in this state, is not eligible for board
453 membership unless such felon's civil rights have been restored
454 for at least 5 years as of the date such person seeks election
455 to the board. The validity of an action by the board is not
456 affected if it is later determined that a board member is
457 ineligible for board membership due to having been convicted of
458 a felony. This subparagraph does not limit the term of a member
459 of the board of a nonresidential or timeshare condominium.
460 3. The bylaws must provide the method of calling meetings
461 of unit owners, including annual meetings. Written notice of an
462 annual meeting must include an agenda~, must be mailed, hand
463 delivered, or electronically transmitted to each unit owner at
464 least 14 days before the annual meeting~T and ffl-U-0-'E- be posted in
465 a conspicuous place on the condominium property at least 14
466 continuous days before the annual meeting. Written notice of a
467 meeting other than an annual meeting must include an agenda; be
468 mailed, hand delivered, or electronically transmitted to each
469 unit owner; and be posted in a conspicuous place on the
470 condominium property in accordance with the minimum period of
471 time for posting a notice as set forth in the bylaws, and if the
472 bylaws do not provide such notice requirements, then at least 14
473 continuous days before the meeting. Upon notice to the unit
474 owners, the board shall, by duly adopted rule, designate a
475 specific location on the condominium property where all notices
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476 of unit owner meetings must be posted. This requirement does not
477 apply if there is no condominium property for posting notices.
478 In lieu of, or in addition to, the physical posting of meeting
479 notices, the association may, by reasonable rule, adopt a
480 procedure for conspicuously posting and repeatedly broadcasting
481 the notice and the agenda on a closed-circuit cable television
482 system serving the condominium association. However, if
483 broadcast notice is used in lieu of a notice posted physically
484 on the condominium property, the notice and agenda must be
485 broadcast at least four times every broadcast hour of each day
486 that a posted notice is otherwise required under this section.
487 If broadcast notice is provided, the notice and agenda must be
488 broadcast in a manner and for a sufficient continuous length of
489 time so as to allow an average reader to observe the notice and
490 read and comprehend the entire content of the notice and the
491 agenda. In addition to any of the authorized means of providing
492 notice of a meeting of the board, the association may, by rule,
493 adopt a procedure for conspicuously posting the meeting notice
494 and the agenda on a website serving the condominium association
495 for at least the minimum period of time for which a notice of a
496 meeting is also required to be physically posted on the
497 condominium property. Any rule adopted shall, in addition to
498 other matters, include a requirement that the association send
499 an electronic notice in the same manner as a notice for a
500 meeting of the members, which must include a hyperlink to the
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501 website where the notice is posted, to unit owners whose e-mail
502 addresses are included in the association's official records.
503 Unless a unit owner waives in writing the right to receive
504 notice of the annual meeting, such notice must be hand
505 delivered, mailed, or electronically transmitted to each unit
506 owner. Notice for meetings and notice for all other purposes
507 must be mailed to each unit owner at the address last furnished
508 to the association by the unit owner, or hand delivered to each
509 unit owner. However, if a unit is owned by more than one person,
510 the association must provide notice to the address that the
511 developer identifies for that purpose and thereafter as one or
512 more of the owners of the unit advise the association in
513 writing, or if no address is given or the owners of the unit do
514 not agree, to the address provided on the deed of record. An
515 officer of the association, or the manager or other person
516 providing notice of the association meeting, must provide an
517 affidavit or United States Postal Service certificate of
518 mailing, to be included in the official records of the
519 association affirming that the notice was mailed or hand
520 delivered in accordance with this provision.
521 4. The members of the board of a residential condominium
522 shall be elected by written ballot or voting machine. Proxies
523 may not be used in electing the board in general elections or
524 elections to fill vacancies caused by recall, resignation, or
525 otherwise, unless otherwise provided in this chapter. This
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526 subparagraph does not apply to an association governing a
527 timeshare condominium.
528 a. At least 60 days before a scheduled election, the
529 association shall mail, deliver, or electronically transmit, by
530 separate association mailing or included in another association
531 mailing, delivery, or transmission, including regularly
532 published newsletters, to each unit owner entitled to a vote, a
533 first notice of the date of the election. A unit owner or other
534 eligible person desiring to be a candidate for the board must
535 give written notice of his or her intent to be a candidate to
536 the association at least 40 days before a scheduled election.
537 Together with the written notice and agenda as set forth in
538 subparagraph 3., the association shall mail, deliver, or
539 electronically transmit a second notice of the election to all
540 unit owners entitled to vote, together with a ballot that lists
541 all candidates not less than 14 days or more than 34 days before
542 the date of the election. Upon request of a candidate, an
543 information sheet, no larger than 8 1/2 inches by 11 inches,
544 which must be furnished by the candidate at least 35 days before
545 the election, must be included with the mailing, delivery, or
546 transmission of the ballot, with the costs of mailing, delivery,
547 or electronic transmission and copying to be borne by the
548 association. The association is not liable for the contents of
549 the information sheets prepared by the candidates. In order to
550 reduce costs, the association may print or duplicate the
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551 information sheets on both sides of the paper. The division
552 shall by rule establish voting procedures consistent with this
553 sub-subparagraph, including rules establishing procedures for
554 giving notice by electronic transmission and rules providing for
555 the secrecy of ballots. Elections shall be decided by a
556 plurality of ballots cast. There is no quorum requirement;
557 however, at least 20 percent of the eligible voters must cast a
558 ballot in order to have a valid election. A unit owner may not
559 authorize any other person to vote his or her ballot, and any
560 ballots improperly cast are invalid. A unit owner who violates
561 this provision may be fined by the association in accordance
562 withs. 718.303. A unit owner who needs assistance in casting
563 the ballot for the reasons stated ins. 101.051 may obtain such
564 assistance. The regular election must occur on the date of the
565 annual meeting. Notwithstanding this sub-subparagraph, an
566 election is not required unless more candidates file notices of
567 intent to run or are nominated than board vacancies exist.
568 b. Within 90 days after being elected or appointed to the
569 board of an association of a residential condominium, each newly
570 elected or appointed director shall certify in writing to the
571 secretary of the association that he or she has read the
572 association's declaration of condominium, articles of
573 incorporation, bylaws, and current written policies; that he or
574 she will work to uphold such documents and policies to the best
575 of his or her ability; and that he or she will faithfully
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576 discharge his or her fiduciary responsibility to the
577 association's members. In lieu of this written certification,
578 within 90 days after being elected or appointed to the board,
579 the newly elected or appointed director may submit a certificate
580 of having satisfactorily completed the educational curriculum
581 administered by a division-approved condominium education
582 provider within 1 year before or 90 days after the date of
583 election or appointment. The written certification or
584 educational certificate is valid and does not have to be
585 resubmitted as long as the director serves on the board without
586 interruption. A director of an association of a residential
587 condominium who fails to timely file the written certification
588 or educational certificate is suspended from service on the
589 board until he or she complies with this sub-subparagraph. The
590 board may temporarily fill the vacancy during the period of
591 suspension. The secretary shall cause the association to retain
592 a director's written certification or educational certificate
593 for inspection by the members for 5 years after a director's
594 election or the duration of the director's uninterrupted tenure,
595 whichever is longer. Failure to have such written certification
596 or educational certificate on file does not affect the validity
597 of any board action.
598 c. Any challenge to the election process must be commenced
599 within 60 days after the election results are announced.
600 5. Any approval by unit owners called for by this chapter
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601 or the applicable declaration or bylaws, including, but not
602 limited to, the approval requirement ins. 718.111(8), must be
603 made at a duly noticed meeting of unit owners and is subject to
604 all requirements of this chapter or the applicable condominium
605 documents relating to unit owner decisionmaking, except that
606 unit owners may take action by written agreement, without
607 meetings, on matters for which action by written agreement
608 without meetings is expressly allowed by the applicable bylaws
609 or declaration or any law that provides for such action.
610 6. Unit owners may waive notice of specific meetings if
611 allowed by the applicable bylaws or declaration or any law.
612 Notice of meetings of the board of administration, unit owner
613 meetings, except unit owner meetings called to recall board
614 members under paragraph (j), and committee meetings may be given
615 by electronic transmission to unit owners who consent to receive
616 notice by electronic transmission. A unit owner who consents to
617 receiving notices by electronic transmission is solely
618 responsible for removing or bypassing filters that block receipt
619 of mass e-mails effiails sent to members on behalf of the
620 association in the course of giving electronic notices.
621 7. Unit owners have the right to participate in meetings
622 of unit owners with reference to all designated agenda items.
623 However, the association may adopt reasonable rules governing
624 the frequency, duration, and manner of unit owner participation.
625 8. A unit owner may tape record or videotape a meeting of
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626 the unit owners subject to reasonable rules adopted by the
627 di vision.
628 9. Unless otherwise provided in the bylaws, any vacancy
629 occurring on the board before the expiration of a term may be
630 filled by the affirmative vote of the majority of the remaining
631 directors, even if the remaining directors constitute less than
632 a quorum, or by the sole remaining director. In the alternative,
633 a board may hold an election to fill the vacancy, in which case
634 the election procedures must conform to sub-subparagraph 4.a.
635 unless the association governs 10 units or fewer and has opted
636 out of the statutory election process, in which case the bylaws
637 of the association control. Unless otherwise provided in the
638 bylaws, a board member appointed or elected under this section
639 shall fill the vacancy for the unexpired term of the seat being
640 filled. Filling vacancies created by recall is governed by
641 paragraph (j) and rules adopted by the division.
642 10. This chapter does not limit the use of general or
643 limited proxies, require the use of general or limited proxies,
644 or require the use of a written ballot or voting machine for any
645 agenda item or election at any meeting of a timeshare
646 condominium association or nonresidential condominium
647 association.
648
649 Notwithstanding subparagraph (b)2. and sub-subparagraph 4.a., an
650 association of 10 or fewer units may, by affirmative vote of a
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651 majority of the total voting interests, provide for different
652 voting and election procedures in its bylaws, which may be by a
653 proxy specifically delineating the different voting and election
654 procedures. The different voting and election procedures may
655 provide for elections to be conducted by limited or general
656 proxy.
657 (i) Transfer fees.-An association may not fTe- charge an
658 applicant any fees, except the actual costs of any background
659 check or screening performed shall be ffiade by the associationL
660 or any body thereof in connection with the sale, mortgage,
661 lease, sublease, or other transfer of a unit unless the
662 association is required to approve such transfer and a fee for
663 such approval is provided for in the declaration, articles, or
664 bylaws. Except for the actual costs of any background check or
665 screening performed by the association, any such fee may be
666 preset, but may not in no event ffiay such fee exceed $100 per
667 applicant other than spouses or parent and dependent child, who
668 husband/wife or parent/dependent child, which are considered one
669 applicant. However, if the lease or sublease is a renewal of a
670 lease or sublease with the same lessee or sublessee, a charge
671 may not no charge shall be made. The foregoing notwithstanding,
672 an association may, if the authority to do so appears in the
673 declaration, articles, or bylaws, require that a prospective
674 lessee place a security deposit, in an amount not to exceed the
675 equivalent of 1 month's rent, into an escrow account maintained
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676 by the association. The security deposit shall protect against
677 damages to the common elements or association property. Payment
678 of interest, claims against the deposit, refunds, and disputes
679 under this paragraph shall be handled in the same fashion as
680 provided in part II of chapter 83.
681 (p) Service providers; conflicts of interest. An
682 association, which is not a timeshare condominium association,
683 ffiay not employ or contract with any service provider that is
684 owned or operated by a board member or with any person who has a
685 financial relationship with a board member or officer, or a
686 relative within the third degree of consanguinity by blood or
687 marriage of a board member or officer. This paragraph does not
688 apply to a service provider in which a board member or officer,
68 9 or a relative within the third degree of consanguinity by blood
690 or marriage of a board member or officer, owns less than 1
691 percent of the equity shares.
692 Section 5. Paragraphs (a) and (c) of subsection (8) of
693 section 718.113, Florida Statutes, are amended to read:
694 718.113 Maintenance; limitation upon improvement; display
695 of flag; hurricane shutters and protection; display of religious
696 decorations.-
697 (8) The Legislature finds that the use of electric
698 vehicles conserves and protects the state's environmental
699 resources, provides significant economic savings to drivers, and
700 serves an important public interest. The participation of
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701 condominium associations is essential to the state's efforts to
702 conserve and protect the state's environmental resources and
703 provide economic savings to drivers. Therefore, the installation
704 of an electric vehicle charging station shall be governed as
705 follows:
706 (a) A declaration of condominium or restrictive covenant
707 may not prohibit or be enforced so as to prohibit any unit owner
708 from installing an electric vehicle charging station within the
709 boundaries of the unit owner's limited common element or
710 exclusively designated parking area. The board of administration
711 of a condominium association may not prohibit a unit owner from
712 installing an electric vehicle charging station for an electric
713 vehicle, as defined ins. 320.01, within the boundaries of his
714 or her limited common element or exclusively designated parking
715 area. The installation of such charging stations are subject to
716 the provisions of this subsection.
717 (c) The electricity for the electric vehicle charging
718 station must be separately metered or must use an embedded meter
719 and be payable by the unit owner installing such charging
720 station.
721 Section 6. Subsection (1) and paragraph (b) of subsection
722 (3) of section 718.303, Florida Statutes, are amended to read:
723 718.303 Obligations of owners and occupants; remedies.-
724 (1) Each unit owner, eaeR tenant and other invitee, and
725 eaeR association is governed by, and must comply with the
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726 provisions of, this chapter, the declaration, the documents
727 creating the association, and the association bylaws which are
728 shall be deemed expressly incorporated into any lease of a unit.
729 Actions at law or in equity for damages or for injunctive
730 relief, or both, for failure to comply with these provisions may
731 be brought by the association or by a unit owner against:
732 (a) The association.
733 (b) A unit owner.
734 (c) Directors designated by the developer, for actions
735 taken by them before control of the association is assumed by
736 unit owners other than the developer.
737 (d) Any director who willfully and knowingly fails to
738 comply with these provisions.
739 (e) Any tenant leasing a unit, and any other invitee
740 occupying a unit.
741
742 The prevailing party in any such action or in any action in
743 which the purchaser claims a right of voidability based upon
744 contractual provisions as required ins. 718.503(1) (a) is
745 entitled to recover reasonable attorney attorney's fees. A unit
746 owner prevailing in an action between the association and the
747 unit owner under this subsection section, in addition to
748 recovering his or her reasonable attorney attorney's fees, may
749 recover additional amounts as determined by the court to be
750 necessary to reimburse the unit owner for his or her share of
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751 assessments levied by the association to fund its expenses of
752 the litigation. This relief does not exclude other remedies
753 provided by law. Actions arising under this subsection are not
754 considered may not be deemed to be actions for specific
7 55 performance.
756 (3) The association may levy reasonable fines for the
757 failure of the owner of the unit or its occupant, licensee, or
758 invitee to comply with any provision of the declaration, the
759 association bylaws, or reasonable rules of the association. A
760 fine may not become a lien against a unit. A fine may be levied
761 by the board on the basis of each day of a continuing violation,
762 with a single notice and opportunity for hearing before a
763 committee as provided in paragraph (b). However, the fine may
764 not exceed $100 per violation, or $1,000 in the aggregate.
765 (b) A fine or suspension levied by the board of
766 administration may not be imposed unless the board first
767 provides at least 14 days' written notice to the unit owner and,
768 if applicable, any tenant occupant, licensee, or invitee of the
769 unit owner sought to be fined or suspended, and an opportunity
770 for a hearing before a committee of at least three members
771 appointed by the board who are not officers, directors, or
772 employees of the association, or the spouse, parent, child,
773 brother, or sister of an officer, director, or employee. The
774 role of the committee is limited to determining whether to
775 confirm or reject the fine or suspension levied by the board. If
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776 the committee does not approve the proposed fine or suspension
777 by majority vote, the fine or suspension may not be imposed. If
778 the proposed fine or suspension is approved by the committee,
779 the fine payment is due 5 days after notice of the approved fine
780 is provided to the unit owner and, if applicable, to any tenant,
781 licensee, or invitee of the unit owner the date of the cofflfflittee
782 meeting at which the fine is approved. The association must
783 provide written notice of such fine or suspension by mail or
784 hand delivery to the unit owner and, if applicable, to any
785 tenant, licensee, or invitee of the unit owner.
786 Section 7. Section 718.5014, Florida Statutes, is amended
787 to read:
788 718.5014 Ombudsman location.-The ombudsman shall maintain
789 his or her principal office in~ Leon County on the premises of
790 the division or, if suitable space cannot be provided there, at
791 another place convenient to the offices of the division which
792 will enable the ombudsman to expeditiously carry out the duties
793 and functions of his or her office. The ombudsman may establish
794 branch offices elsewhere in the state upon the concurrence of
795 the Governor.
796 Section 8. Subsection (25) of section 719.103, Florida
797 Statutes, is amended to read:
798 719.103 Definitions.-As used in this chapter:
799 (25) "Unit" means a part of the cooperative property which
800 is subject to exclusive use and possession. A unit may be
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801 improvements, land, or land and improvements together, as
802 specified in the cooperative documents. An interest in a unit is
803 an interest in real property.
804 Section 9. Paragraph (c) of subsection (2) of section
805 719.104, Florida Statutes, is amended to read:
806 719.104 Cooperatives; access to units; records; financial
807 reports; assessments; purchase of leases.-
808 (2) OFFICIAL RECORDS.-
809 (c) The official records of the association are open to
810 inspection by any association member or the authorized
811 representative of such member at all reasonable times. The right
812 to inspect the records includes the right to make or obtain
813 copies, at the reasonable expense, if any, of the association
814 member. The association may adopt reasonable rules regarding the
815 frequency, time, location, notice, and manner of record
816 inspections and copying, but may not require a member to
817 demonstrate any purpose or state any reason for the inspection.
818 The failure of an association to provide the records within 10
819 working days after receipt of a written request creates a
820 rebuttable presumption that the association willfully failed to
821 comply with this paragraph. A member unit owner who is denied
822 access to official records is entitled to the actual damages or
823 minimum damages for the association's willful failure to comply.
824 The minimum damages are $50 per calendar day for up to 10 days,
825 beginning on the 11th working day after receipt of the written
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826 request. The failure to permit inspection entitles any person
827 prevailing in an enforcement action to recover reasonable
828 attorney fees from the person in control of the records who,
829 directly or indirectly, knowingly denied access to the records.
830 Any person who knowingly or intentionally defaces or destroys
831 accounting records that are required by this chapter to be
832 maintained during the period for which such records are required
833 to be maintained, or who knowingly or intentionally fails to
834 create or maintain accounting records that are required to be
835 created or maintained, with the intent of causing harm to the
836 association or one or more of its members, is personally subject
837 to a civil penalty under pursuant to s. 719.501(1) (d). The
838 association shall maintain an adequate number of copies of the
839 declaration, articles of incorporation, bylaws, and rules, and
840 all amendments to each of the foregoing, as well as the question
841 and answer sheet as described ins. 719.504 and year-end
842 financial information required by the department, on the
843 cooperative property to ensure their availability to members
844 unit owners and prospective purchasers, and may charge its
845 actual costs for preparing and furnishing these documents to
846 those requesting the same. An association shall allow a member
847 or his or her authorized representative to use a portable
848 device, including a smartphone, tablet, portable scanner, or any
849 other technology capable of scanning or taking photographs, to
850 make an electronic copy of the official records in lieu of the
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851 association providing the member or his or her authorized
852 representative with a copy of such records. The association may
853 not charge a member or his or her authorized representative for
854 the use of a portable device. Notwithstanding this paragraph,
855 the following records shall not be accessible to members ttt=H:-t
856 owners:
857 1. Any record protected by the lawyer-client privilege as
858 described ins. 90.502 and any record protected by the work-
859 product privilege, including any record prepared by an
860 association attorney or prepared at the attorney's express
861 direction which reflects a mental impression, conclusion,
862 litigation strategy, or legal theory of the attorney or the
863 association, and which was prepared exclusively for civil or
864 criminal litigation or for adversarial administrative
865 proceedings, or which was prepared in anticipation of such
866 litigation or proceedings until the conclusion of the litigation
867 or proceedings.
868 2. Information obtained by an association in connection
869 with the approval of the lease, sale, or other transfer of a
870 unit.
871 3. Personnel records of association or management company
872 employees, including, but not limited to, disciplinary, payroll,
873 health, and insurance records. For purposes of this
874 subparagraph, the term "personnel records" does not include
875 written employment agreements with an association employee or
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876 management company, or budgetary or financial records that
877 indicate the compensation paid to an association employee.
878 4. Medical records of unit owners.
879 5. Social security numbers, driver license numbers, credit
880 card numbers, e-mail addresses, telephone numbers, facsimile
881 numbers, emergency contact information, addresses of a unit
882 owner other than as provided to fulfill the association's notice
883 requirements, and other personal identifying information of any
884 person, excluding the person's name, unit designation, mailing
885 address, property address, and any address, e-mail address, or
886 facsimile number provided to the association to fulfill the
887 association's notice requirements. Notwithstanding the
888 restrictions in this subparagraph, an association may print and
889 distribute to unit parcel owners a directory containing the
890 name, unit parcel address, and all telephone numbers of each
891 unit parcel owner. However, an owner may exclude his or her
892 telephone numbers from the directory by so requesting in writing
893 to the association. An owner may consent in writing to the
894 disclosure of other contact information described in this
895 subparagraph. The association is not liable for the inadvertent
896 disclosure of information that is protected under this
897 subparagraph if the information is included in an official
898 record of the association and is voluntarily provided by an
899 owner and not requested by the association.
900 6. Electronic security measures that are used by the
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901 association to safeguard data, including passwords.
902 7. The software and operating system used by the
903 association which allow the manipulation of data, even if the
904 owner owns a copy of the same software used by the association.
905 The data is part of the official records of the association.
906 Section 10. Paragraph (b) of subsection (1) of section
907 719.106, Florida Statutes, is amended, and subsection (3) is
908 added to that section, to read:
909 719.106 Bylaws; cooperative ownership.-
910 (1) MANDATORY PROVISIONS.-The bylaws or other cooperative
911 documents shall provide for the following, and if they do not,
912 they shall be deemed to include the following:
913 (b) Quorum; voting requirements; proxies.-
914 1. Unless otherwise provided in the bylaws, the percentage
915 of voting interests required to constitute a quorum at a meeting
916 of the members shall be a majority of voting interests, and
917 decisions shall be made by owners of a majority of the voting
918 interests. Unless otherwise provided in this chapter, or in the
919 articles of incorporation, bylaws, or other cooperative
920 documents, and except as provided in subparagraph (d)l.,
921 decisions shall be made by owners of a majority of the voting
922 interests represented at a meeting at which a quorum is present.
923 2. Except as specifically otherwise provided herein, after
924 January 1, 1992, unit owners may not vote by general proxy, but
925 may vote by limited proxies substantially conforming to a
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926 limited proxy form adopted by the division. Limited proxies and
927 general proxies may be used to establish a quorum. Limited
928 proxies shall be used for votes taken to waive or reduce
929 reserves in accordance with subparagraph (j)2., for votes taken
930 to waive the financial reporting requirements of s.
931 719.104(4) (b), for votes taken to amend the articles of
932 incorporation or bylaws pursuant to this section, and for any
933 other matter for which this chapter requires or permits a vote
934 of the unit owners. Except as provided in paragraph (d), after
935 January 1, 1992, no proxy, limited or general, shall be used in
936 the election of board members. General proxies may be used for
937 other matters for which limited proxies are not required, and
938 may also be used in voting for nonsubstantive changes to items
939 for which a limited proxy is required and given. Notwithstanding
940 the provisions of this section, unit owners may vote in person
941 at unit owner meetings. Nothing contained herein shall limit the
942 use of general proxies or require the use of limited proxies or
943 require the use of limited proxies for any agenda item or
944 election at any meeting of a timeshare cooperative.
945 3. Any proxy given shall be effective only for the
946 specific meeting for which originally given and any lawfully
947 adjourned meetings thereof. In no event shall any proxy be valid
948 for a period longer than 90 days after the date of the first
949 meeting for which it was given. Every proxy shall be revocable
950 at any time at the pleasure of the unit owner executing it.
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951 4. A member of the board of administration or a committee
952 may submit in writing his or her agreement or disagreement with
953 any action taken at a meeting that the member did not attend.
954 This agreement or disagreement may not be used as a vote for or
955 against the action taken and may not be used for the purposes of
956 creating a quorum.
957 5. A board or committee member participating in a meeting
958 via telephone, real-time video conferencing, or similar real-
959 time electronic or video communication counts toward a quorum,
960 and such member may vote as if physically present When some or
961 all of the board or cofflfflittee members meet by telephone
962 conference, those board or cofflfflittee members attending by
963 telephone conference may be counted toward obtaining a quorum
964 and may vote by telephone. A telephone speaker must shall be
965 used utili~ed so that the conversation of such those board or
966 cofflfflittee members attending by telephone may be heard by the
967 board or committee members attending in person, as well as by
968 any unit owners present at a meeting.
969 (3) GENERALLY.-Any provision of the declaration, the
970 association bylaws, or reasonable rules or regulations of the
971 association which diminish or infringe upon any right protected
972 under the Fourteenth Amendment to the United States Constitution
973 or Art. II of the State Constitution is void and unenforceable
974 without further action of the association. The association may
975 record a notice in the public records of the county in which the
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976 cooperative is located evidencing its intention to not enforce
977 such provision. The failure of the association to record a
978 notice in the public record may not be the basis for liability
979 or evidence of discrimination or a discriminatory intention.
980 Section 11. Paragraph (1) of subsection (4) of section
981 720.303, Florida Statutes, is redesignated as paragraph (m),
982 paragraph (c) of subsection (2) is amended, and a new paragraph
983 (1) is added to subsection (4) of that section, to read:
984 720.303 Association powers and duties; meetings of board;
985 official records; budgets; financial reporting; association
986 funds; recalls.-
987 (2) BOARD MEETINGS.-
988 (c) The bylaws shall provide the following for giving
989 notice to parcel owners and members of all board meetings and,
990 if they do not do so, shall be deemed to include the following:
991 1. Notices of all board meetings must be posted in a
992 conspicuous place in the community at least 48 hours in advance
993 of a meeting, except in an emergency. In the alternative, if
994 notice is not posted in a conspicuous place in the community,
995 notice of each board meeting must be mailed or delivered to each
996 member at least 7 days before the meeting, except in an
997 emergency. Notwithstanding this general notice requirement, for
998 communities with more than 100 members, the association bylaws
999 may provide for a reasonable alternative to posting or mailing
1000 of notice for each board meeting, including publication of
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1001 notice, provision of a schedule of board meetings, or the
1002 conspicuous posting and repeated broadcasting of the notice on a
1003 closed-circuit cable television system serving the homeowners'
1004 association. However, if broadcast notice is used in lieu of a
1005 notice posted physically in the community, the notice must be
1006 broadcast at least four times every broadcast hour of each day
1007 that a posted notice is otherwise required. When broadcast
1008 notice is provided, the notice and agenda must be broadcast in a
1009 manner and for a sufficient continuous length of time so as to
1010 allow an average reader to observe the notice and read and
1011 comprehend the entire content of the notice and the agenda. In
1012 addition to any of the authorized means of providing notice of a
1013 meeting of the board, the association may, by rule, adopt a
1014 procedure for conspicuously posting the meeting notice and the
1015 agenda on the association's website for at least the minimum
1016 period of time for which a notice of a meeting is also required
1017 to be physically posted on the association property. Any rule
1018 adopted shall, in addition to other matters, include a
1019 requirement that the association send an electronic notice in
1020 the same manner as is required for a notice of a meeting of the
1021 members, which must include a hyperlink to the website where the
1022 notice is posted, to members whose e-mail addresses are included
1023 in the association's official records. The association may
1024 provide notice by electronic transmission in a manner authorized
1025 by law for meetings of the board of directors, committee
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1026 meetings requiring notice under this section, and annual and
1027 special meetings of the members to any member who has provided a
1028 facsimile number or e-mail address to the association to be used
1029 for such purposes; however, a member must consent in writing to
1030 receiving notice by electronic transmission.
1031 2. An assessment may not be levied at a board meeting
1032 unless the notice of the meeting includes a statement that
1033 assessments will be considered and the nature of the
1034 assessments. Written notice of any meeting at which special
1035 assessments will be considered or at which amendments to rules
1036 regarding parcel use will be considered must be mailed,
1037 delivered, or electronically transmitted to the members and
1038 parcel owners and posted conspicuously on the property or
1039 broadcast on closed-circuit cable television not less than 14
1040 days before the meeting.
1041 3. Directors may not vote by proxy or by secret ballot at
1042 board meetings, except that secret ballots may be used in the
1043 election of officers. This subsection also applies to the
1044 meetings of any committee or other similar body, when a final
1045 decision will be made regarding the expenditure of association
1046 funds, and to any body vested with the power to approve or
1047 disapprove architectural decisions with respect to a specific
1048 parcel of residential property owned by a member of the
1049 community.
1050 (4) OFFICIAL RECORDS.-The association shall maintain each
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1051 of the following items, when applicable, which constitute the
1052 official records of the association:
1053 (1) Ballots, sign-in sheets, voting proxies, and all other
1054 papers and electronic records relating to voting by parcel
1055 owners, which must be maintained for at least 1 year after the
1056 date of the election, vote, or meeting.
1057 (m)-f-±+ All other written records of the association not
1058 specifically included in this subsection the foregoing which are
1059 related to the operation of the association.
1060 Section 12. Subsections (1) and (2) of section 720.305,
1061 Florida Statutes, are amended to read:
1062 720.305 Obligations of members; remedies at law or in
1063 equity; levy of fines and suspension of use rights.-
1064 (1) Each member and the member's tenants, guests, and
1065 invitees, and each association, are governed by, and must comply
1066 with, this chapter and7 the governing documents of the
1067 community, and the rules of the association. Actions at law or
1068 in equity, or both, to redress alleged failure or refusal to
1069 comply with these provisions may be brought by the association
1070 or by any member against:
1071 (a) The association;
1072 (b) A member;
1073 (c) Any director or officer of an association who
1074 willfully and knowingly fails to comply with these provisions;
1075 and
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1076 (d) Any tenants, guests, or invitees occupying a parcel or
1077 using the common areas.
1078
1079 The prevailing party in any such litigation is entitled to
1080 recover reasonable attorney fees and costs. A member prevailing
1081 in an action between the association and the member under this
1082 section, in addition to recovering his or her reasonable
1083 attorney fees, may recover additional amounts as determined by
1084 the court to be necessary to reimburse the member for his or her
1085 share of assessments levied by the association to fund its
1086 expenses of the litigation. This relief does not exclude other
1087 remedies provided by law. This section does not deprive any
1088 person of any other available right or remedy.
1089 (2) A n ~ association may levy reasonable fines. A fine
1090 may not exceed $100 per violation against any member or any
1091 member's tenant, guest, or invitee for the failure of the owner
1092 of the parcel or its occupant, licensee, or invitee to comply
1093 with any provision of the declaration, the association bylaws,
1094 or reasonable rules of the association unless otherwise provided
1095 in the governing documents. A fine may be levied by the board
1096 for each day of a continuing violation, with a single notice and
1097 opportunity for hearing, except that the fine may not exceed
1098 $1,000 in the aggregate unless otherwise provided in the
1099 governing documents. A fine of less than $1,000 may not become a
1100 lien against a parcel. In any action to recover a fine, the
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1101 prevailing party is entitled to reasonable attorney fees and
1102 costs from the nonprevailing party as determined by the court.
1103 (a) An association may suspend, for a reasonable period of
1104 time, the right of a member, or a member's tenant, guest, or
1105 invitee, to use common areas and facilities for the failure of
1106 the owner of the parcel or its occupant, licensee, or invitee to
1107 comply with any provision of the declaration, the association
1108 bylaws, or reasonable rules of the association. This paragraph
1109 does not apply to that portion of common areas used to provide
1110 access or utility services to the parcel. A suspension may not
1111 prohibit an owner or tenant of a parcel from having vehicular
1112 and pedestrian ingress to and egress from the parcel, including,
1113 but not limited to, the right to park.
1114 (b) A fine or suspension levied by the board of
1115 administration may not be imposed unless the board first
1116 provides at least 14 days' notice to the parcel owner and, if
1117 applicable, any occupant, licensee, or invitee of the parcel
1118 owner, sought to be fined or suspended and an opportunity for a
1119 hearing before a committee of at least three members appointed
1120 by the board who are not officers, directors, or employees of
1121 the association, or the spouse, parent, child, brother, or
1122 sister of an officer, director, or employee. If the committee,
1123 by majority vote, does not approve a proposed fine or
1124 suspension, the proposed fine or suspension may not be imposed.
1125 The role of the committee is limited to determining whether to
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1126 confirm or reject the fine or suspension levied by the board. If
1127 the proposed fine or suspension levied by the board is approved
1128 by the committee, the fine payment is due 5 days after notice of
1129 the approved fine is provided to the parcel owner and, if
1130 applicable, to any occupant, licensee, or invitee of the parcel
1131 owner the date of the cofflfflittee ffieeting at which the fine is
1132 approved. The association must provide written notice of such
1133 fine or suspension by mail or hand delivery to the parcel owner
1134 and, if applicable, to any occupant tenant, licensee, or invitee
1135 of the parcel owner.
1136 Section 13. Paragraph (g) of subsection (1) of section
1137 720.306, Florida Statutes, is amended to read:
1138 720.306 Meetings of members; voting and election
1139 procedures; amendments.-
1140 (1) QUORUM; AMENDMENTS.-
1141 (g) A notice required under this section must be mailed or
1142 delivered to the address identified as the parcel owner's
1143 mailing address in the official records of the association as
1144 required under s. 720.303(4) on the property appraiser's website
1145 for the county in \1hich the parcel is located, or electronically
1146 transmitted in a manner authorized by the association if the
1147 parcel owner has consented, in writing, to receive notice by
1148 electronic transmission.
1149 Section 14. Subsection (6) is added to section 720.3075,
1150 Florida Statutes, to read:
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1151 720.3075 Prohibited clauses in association documents.-
1152 (6) Any provision of the declaration, the association
1153 bylaws, or reasonable rules or regulations of the association
1154 which diminish or infringe upon any right protected under the
1155 Fourteenth Amendment to the United States Constitution or Art.
1156 II of the State Constitution is void and unenforceable without
1157 further action of the association. The association may record a
1158 notice in the public records of the county in which the
1159 community is located evidencing its intention to not enforce
1160 such provision. The failure of the association to record a
1161 notice in the public record may not be the basis for liability
1162 or evidence of discrimination or a discriminatory intention.
1163 Section 15. This act shall take effect July 1, 2020.
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BUSINESS & PROFESSIONS SUBCOMMITTEE
HB 623 by Rep. Shoaf
Community Associations
AMENDMENT SUMMARY
December 11, 2019
Amendment 1 by Rep. Shoaf (Strike-all amendment):
The strike-all amendment differs from the original bill in the following ways:
• Corrects a scrivener's error by correcting a reference to the Florida Constitution, from
article II, to article I, section 2.
• Permits a unit owner in a condominium association to install an alternative fuel station
for an alternative fuel motor vehicle within the boundaries of the owner's parking area.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/0 OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Business & Professions
2 Subcommittee
3 Representative Shoaf offered the following:
4
5 Amendment (with title amendment)
6 Remove everything after the enacting clause and insert:
7 Section 1. Paragraph (a) of subsection (2) of section
8 514.0115, Florida Statutes, is amended to read:
9 514.0115 Exemptions from supervision or regulation;
10 variances.-
11 ( 2) (a) Pools serving condominium, cooperative, and
12 homeowners' associations, as well as other property
13 associations, which have no more than 32 condominium or
14 cooperative units or parcels and which are not operated as a
15 public lodging establishments are establishment shall be exempt
16 from supervision under this chapter, except for water quality.
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Bill No. HB 623 (2020)
Amendment No. 1.
17 Section 2. Subsection (4) of section 627.714, Florida
18 Statutes, is amended to read:
19 627.714 Residential condominium unit owner coverage; loss
20 assessment coverage required.-
21 (4) Every individual unit owner's residential property
22 policy must contain a provision stating that the coverage
23 afforded by such policy is excess coverage over the amount
24 recoverable under any other policy covering the same property.
25 If a condominium association's insurance policy does not provide
26 rights for subrogation against the unit owners in the
27 association, an insurance policy issued to an individual unit
28 owner located in the association may not provide rights of
29 subrogation against the condominium association.
30 Section 3. Paragraphs (a), (b), (c), and (g) of subsection
31 (12) of section 718.111, Florida Statutes, are amended to read:
32 718.111 The association.-
33 (12) OFFICIAL RECORDS.-
34 (a) From the inception of the association, the association
35 shall maintain each of the following items, if applicable, which
36 constitutes the official records of the association:
37 1. A copy of the plans, permits, warranties, and other
38 items provided by the developer pursuant to s. 718.301(4).
39 2. A photocopy of the recorded declaration of condominium
40 of each condominium operated by the association and each
41 amendment to each declaration.
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Bill No. HB 623 (2020)
Amendment No. 1.
42 3. A photocopy of the recorded bylaws of the association
43 and each amendment to the bylaws.
44 4. A certified copy of the articles of incorporation of
45 the association, or other documents creating the association,
46 and each amendment thereto.
47 5. A copy of the current rules of the association.
48 6. A book or books that contain the minutes of all
49 meetings of the association, the board of administration, and
50 the unit owners.
51 7. A current roster of all unit owners and their mailing
52 addresses, unit identifications, voting certifications, and, if
53 known, telephone numbers. The association shall also maintain
54 the e-mail addresses and facsimile numbers of unit owners
55 consenting to receive notice by electronic transmission. Thee-
56 mail addresses and facsimile numbers are not accessible to unit
57 owners if consent to receive notice by electronic transmission
58 is not provided in accordance with sub-subparagraph (c)3.e.
59 However, the association is not liable for an inadvertent
60 disclosure of the e-mail address or facsimile number for
61 receiving electronic transmission of notices.
62 8. All current insurance policies of the association and
63 condominiums operated by the association.
64 9. A current copy of any management agreement, lease, or
65 other contract to which the association is a party or under
66 which the association or the unit owners have an obligation or
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
67 responsibility.
68 10. Bills of sale or transfer for all property owned by
69 the association.
70 11. Accounting records for the association and separate
71 accounting records for each condominium that the association
72 operates. Any person who knowingly or intentionally defaces or
73 destroys such records, or who knowingly or intentionally fails
74 to create or maintain such records, with the intent of causing
75 harm to the association or one or more of its members, is
76 personally subject to a civil penalty pursuant to s.
77 718. 501 (1) (d). The accounting records must include, but are not
78 limited to:
79 a. Accurate, itemized, and detailed records of all
80 receipts and expenditures.
81 b. A current account and a monthly, bimonthly, or
82 quarterly statement of the account for each unit designating the
83 name of the unit owner, the due date and amount of each
84 assessment, the amount paid on the account, and the balance due.
85 c. All audits, reviews, accounting statements, and
86 financial reports of the association or condominium.
87 d. All contracts for work to be performed. Bids for work
88 to be performed are also considered official records and must be
89 maintained by the association for at least 1 year after receipt
90 of the bid.
91 12. Ballots, sign-in sheets, voting proxies, and all other
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Bill No. HB 623 (2020)
Amendment No. 1.
92 papers and electronic records relating to voting by unit owners,
93 which must be maintained for 1 year from the date of the
94 election, vote, or meeting to which the document relates,
95 notwithstanding paragraph (b) .
96 13. All rental records if the association is acting as
97 agent for the rental of condominium units.
98 14. A copy of the current question and answer sheet as
99 described ins. 718.504.
100 15. All other written records of the association not
101 specifically included in the foregoing which are related to the
102 operation of the association.
103 15.-1-6--. A copy of the inspection report as described ins.
104 718.301(4)(p).
105 16.-1--+-. Bids for materials, equipment, or services.
106 17. All other records of the association not specifically
107 included in subparagraphs 1.-16. which are related to the
108 operation of the association.
109 (b) The official records specified in subparagraphs (a)l.-
110 6. must be permanently maintained from the inception of the
111 association. Bids for work to be performed or for materials,
112 equipment, or services must be maintained for at least 1 year
113 after receipt of the bid. All other official records must be
114 maintained within the state for at least 7 years, unless
115 otherwise provided by general law. The records of the
116 association shall be made available to a unit owner within 45
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Bill No. HB 623 (2020)
Amendment No. 1.
117 miles of the condominium property or within the county in which
118 the condominium property is located within 10 working days after
119 receipt of a written request by the board or its designee.
120 However, such distance requirement does not apply to an
121 association governing a timeshare condominium. This paragraph
122 may be complied with by having a copy of the official records of
123 the association available for inspection or copying on the
124 condominium property or association property, or the association
125 may offer the option of making the records available to a unit
126 owner electronically via the Internet or by allowing the records
127 to be viewed in electronic format on a computer screen and
128 printed upon request. The association is not responsible for the
129 use or misuse of the information provided to an association
130 member or his or her authorized representative in pursuant to
131 -t-fte compliance with requirements of this chapter unless the
132 association has an affirmative duty not to disclose such
133 information under pursuant to this chapter.
134 (c)l. The official records of the association are open to
135 inspection by any association member or the authorized
136 representative of such member at all reasonable times. The right
137 to inspect the records includes the right to make or obtain
138 copies, at the reasonable expense, if any, of the member or
139 authorized representative of such member. A renter of a unit has
140 a right to inspect and copy the association's bylaws and rules.
141 The association may adopt reasonable rules regarding the
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Amendment No. 1.
142 frequency, time, location, notice, and manner of record
143 inspections and copying, but may not require a member to
144 demonstrate any purpose or state any reason for the inspection.
145 The failure of an association to provide the records within 10
146 working days after receipt of a written request creates a
147 rebuttable presumption that the association willfully failed to
148 comply with this paragraph. A unit owner who is denied access to
149 official records is entitled to the actual damages or minimum
150 damages for the association's willful failure to comply. Minimum
151 damages are $50 per calendar day for up to 10 days, beginning on
152 the 11th working day after receipt of the written request. The
153 failure to permit inspection entitles any person prevailing in
154 an enforcement action to recover reasonable attorney fees from
155 the person in control of the records who, directly or
156 indirectly, knowingly denied access to the records.
157 2. Any person who knowingly or intentionally defaces or
158 destroys accounting records that are required by this chapter to
159 be maintained during the period for which such records are
160 required to be maintained, or who knowingly or intentionally
161 fails to create or maintain accounting records that are required
162 to be created or maintained, with the intent of causing harm to
163 the association or one or more of its members, is personally
164 subject to a civil penalty under pursuant to s. 718.501(1) (d).
165 3. The association shall maintain an adequate number of
166 copies of the declaration, articles of incorporation, bylaws,
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Bill No. HB 623 (2020)
Amendment No. 1.
167 and rules, and all amendments to each of the foregoing, as well
168 as the question and answer sheet as described ins. 718.504 and
169 year-end financial information required under this section, on
170 the condominium property to ensure their availability to unit
171 owners and prospective purchasers, and may charge its actual
172 costs for preparing and furnishing these documents to those
173 requesting the documents. An association shall allow a member or
174 his or her authorized representative to use a portable device,
175 including a smartphone, tablet, portable scanner, or any other
176 technology capable of scanning or taking photographs, to make an
177 electronic copy of the official records in lieu of the
178 association's providing the member or his or her authorized
179 representative with a copy of such records. The association may
180 not charge a member or his or her authorized representative for
181 the use of a portable device. Notwithstanding this paragraph,
182 the following records are not accessible to unit owners:
183 a. Any record protected by the lawyer-client privilege as
184 described ins. 90.502 and any record protected by the work-
185 product privilege, including a record prepared by an association
186 attorney or prepared at the attorney's express direction, which
187 reflects a mental impression, conclusion, litigation strategy,
188 or legal theory of the attorney or the association, and which
189 was prepared exclusively for civil or criminal litigation or for
190 adversarial administrative proceedings, or which was prepared in
191 anticipation of such litigation or proceedings until the
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Amendment No. 1.
192 conclusion of the litigation or proceedings.
193 b. Information obtained by an association in connection
194 with the approval of the lease, sale, or other transfer of a
195 unit.
196 c. Personnel records of association or management company
197 employees, including, but not limited to, disciplinary, payroll,
198 health, and insurance records. For purposes of this sub-
199 subparagraph, the term "personnel records" does not include
200 written employment agreements with an association employee or
201 management company, or budgetary or financial records that
202 indicate the compensation paid to an association employee.
203 d. Medical records of unit owners.
204 e. Social security numbers, driver license numbers, credit
205 card numbers, e-mail addresses, telephone numbers, facsimile
206 numbers, emergency contact information, addresses of a unit
207 owner other than as provided to fulfill the association's notice
208 requirements, and other personal identifying information of any
209 person, excluding the person's name, unit designation, mailing
210 address, property address, and any address, e-mail address, or
211 facsimile number provided to the association to fulfill the
212 association's notice requirements. Notwithstanding the
213 restrictions in this sub-subparagraph, an association may print
214 and distribute to unit parcel owners a directory containing the
215 name, unit parcel address, and all telephone numbers of each
216 unit parcel owner. However, an owner may exclude his or her
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Bill No. HB 623 (2020)
Amendment No. 1.
217 telephone numbers from the directory by so requesting in writing
218 to the association. An owner may consent in writing to the
219 disclosure of other contact information described in this sub-
220 subparagraph. The association is not liable for the inadvertent
221 disclosure of information that is protected under this sub-
222 subparagraph if the information is included in an official
223 record of the association and is voluntarily provided by an
224 owner and not requested by the association.
225 f. Electronic security measures that are used by the
226 association to safeguard data, including passwords.
227 g. The software and operating system used by the
228 association which allow the manipulation of data, even if the
229 owner owns a copy of the same software used by the association.
230 The data is part of the official records of the association.
231 (g)l. By January 1, 2019, an association managing a
232 condominium with 150 or more units which does not contain
233 timeshare units shall post digital copies of the documents
234 specified in subparagraph 2. on its website or make such
235 documents available through an application that can be
236 downloaded on a mobile device.
237 a. The association's website or application must be:
238 (I) An independent website, application, or web portal
239 wholly owned and operated by the association; or
240 (II) A website, application, or web portal operated by a
241 third-party provider with whom the association owns, leases,
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Bill No. HB 623 (2020)
Amendment No. 1.
242 rents, or otherwise obtains the right to operate a web page,
243 subpage, web portal, er collection of subpages or web portals~
244 or application which is dedicated to the association's
245 activities and on which required notices, records, and documents
246 may be posted or made available by the association.
247 b. The association's website or application must be
248 accessible through the Internet and must contain a subpage, web
249 portal, or other protected electronic location that is
250 inaccessible to the general public and accessible only to unit
251 owners and employees of the association.
252 c. Upon a unit owner's written request, the association
253 must provide the unit owner with a username and password and
254 access to the protected sections of the association's website or
255 application that contain any notices, records, or documents that
256 must be electronically provided.
257 2. A current copy of the following documents must be
258 posted in digital format on the association's website or
259 application:
260 a. The recorded declaration of condominium of each
261 condominium operated by the association and each amendment to
262 each declaration.
263 b. The recorded bylaws of the association and each
264 amendment to the bylaws.
265 c. The articles of incorporation of the association, or
266 other documents creating the association, and each amendment to
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Bill No. HB 623 (2020)
Amendment No. 1.
267 the articles of incorporation or other documents thereto. The
268 copy posted pursuant to this sub-subparagraph must be a copy of
269 the articles of incorporation filed with the Department of
270 State.
271 d. The rules of the association.
272 e. A list of all executory contracts or documents to which
273 the association is a party or under which the association or the
274 unit owners have an obligation or responsibility and, after
275 bidding for the related materials, equipment, or services has
276 closed, a list of bids received by the association within the
277 past year. Summaries of bids for materials, equipment, or
278 services which exceed $500 must be maintained on the website or
279 application for 1 year. In lieu of summaries, complete copies of
280 the bids may be posted.
281 f. The annual budget required bys. 718.112(2) (f) and any
282 proposed budget to be considered at the annual meeting.
283 g. The financial report required by subsection (13) and
284 any monthly income or expense statement to be considered at a
285 meeting.
286 h. The certification of each director required bys.
287 718.112(2) (d)4.b.
288 i. All contracts or transactions between the association
289 and any director, officer, corporation, firm, or association
290 that is not an affiliated condominium association or any other
291 entity in which an association director is also a director or
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Bill No. HB 623 (2020)
Amendment No. 1.
292 officer and financially interested.
293 j. Any contract or document regarding a conflict of
294 interest or possible conflict of interest as provided in ss.
295 468.436(2) (b)6. and 718.3027(3).
296 k. The notice of any unit owner meeting and the agenda for
297 the meeting, as required bys. 718.112(2) (d)3., no later than 14
298 days before the meeting. The notice must be posted in plain view
299 on the front page of the website or application, or on a
300 separate subpage of the website or application labeled "Notices"
301 which is conspicuously visible and linked from the front page.
302 The association must also post on its website or application any
303 document to be considered and voted on by the owners during the
304 meeting or any document listed on the agenda at least 7 days
305 before the meeting at which the document or the information
306 within the document will be considered.
307 1. Notice of any board meeting, the agenda, and any other
308 document required for the meeting as required bys.
309 718 .112 (2) (c), which must be posted no later than the date
310 required for notice under pursuant to s. 718.112 (2) (c).
311 3. The association shall ensure that the information and
312 records described in paragraph (c), which are not allowed to be
313 accessible to unit owners, are not posted on the association's
314 website or application. If protected information or information
315 restricted from being accessible to unit owners is included in
316 documents that are required to be posted on the association's
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
317 website or application, the association shall ensure the
318 information is redacted before posting the documents online.
319 Notwithstanding the foregoing, the association or its agent is
320 not liable for disclosing information that is protected or
321 restricted under pursuant to this paragraph unless such
322 disclosure was made with a knowing or intentional disregard of
323 the protected or restricted nature of such information.
324 4. The failure of the association to post information
325 required under subparagraph 2. is not in and of itself
326 sufficient to invalidate any action or decision of the
327 association's board or its committees.
32 8 Section 4. Section 4. Paragraphs ( d) , ( i) , and (p) of
329 subsection (2) of section 718.112, Florida Statutes, are
330 amended, and paragraph (c} of subsection (1) is added to that
331 section, to read:
332 718.112 Bylaws.-
333 (1) GENERALLY.-
334 (c) Any provision of the declaration, the association
335 bylaws, or reasonable rules or regulations of the association
336 which diminish or infringe upon any right protected under the
337 Fourteenth Amendment to the United States Constitution ors. 2,
338 Art. I of the State Constitution is void and unenforceable
339 without further action of the association. The association may
340 record a notice in the public records of the county in which the
341 condominium is located evidencing its intention to not enforce
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Bill No. HB 623 (2020)
Amendment No. 1.
342 such provision. The failure of the association to record a
343 notice in the public record may not be the basis for liability
344 or evidence of discrimination or a discriminatory intention.
345 (2) REQUIRED PROVISIONS.-The bylaws shall provide for the
346 following and, if they do not do so, shall be deemed to include
347 the following:
348 (d) Unit owner meetings.-
349 1. An annual meeting of the unit owners must be held at
350 the location provided in the association bylaws and, if the
351 bylaws are silent as to the location, the meeting must be held
352 within 45 miles of the condominium property. However, such
353 distance requirement does not apply to an association governing
354 a timeshare condominium.
355 2. Unless the bylaws provide otherwise, a vacancy on the
356 board caused by the expiration of a director's term must be
357 filled by electing a new board member, and the election must be
358 by secret ballot. An election is not required if the number of
359 vacancies equals or exceeds the number of candidates. For
360 purposes of this paragraph, the term "candidate" means an
361 eligible person who has timely submitted the written notice, as
362 described in sub-subparagraph 4.a., of his or her intention to
363 become a candidate. Except in a timeshare or nonresidential
364 condominium, or if the staggered term of a board member does not
365 expire until a later annual meeting, or if all members' terms
366 would otherwise expire but there are no candidates, the terms of
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Bill No. HB 623 (2020)
Amendment No. 1.
367 all board members expire at the annual meeting, and such members
368 may stand for reelection unless prohibited by the bylaws. Board
369 members may serve terms longer than 1 year if permitted by the
370 bylaws or articles of incorporation. A board member may not
371 serve more than 8 consecutive years unless approved by an
372 affirmative vote of unit owners representing two-thirds of all
373 votes cast in the election or unless there are not enough
374 eligible candidates to fill the vacancies on the board at the
375 time of the vacancy. Only board service that occurs on or after
376 July 1, 2018, may be used when calculating a board member's term
377 limit. If the number of board members whose terms expire at the
378 annual meeting equals or exceeds the number of candidates, the
379 candidates become members of the board effective upon the
380 adjournment of the annual meeting. Unless the bylaws provide
381 otherwise, any remaining vacancies shall be filled by the
382 affirmative vote of the majority of the directors making up the
383 newly constituted board even if the directors constitute less
384 than a quorum or there is only one director. In a residential
385 condominium association of more than 10 units or in a
386 residential condominium association that does not include
387 timeshare units or timeshare interests, co-owners of a unit may
388 not serve as members of the board of directors at the same time
389 unless they own more than one unit or unless there are not
390 enough eligible candidates to fill the vacancies on the board at
391 the time of the vacancy. A unit owner in a residential
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Bill No. HB 623 (2020)
Amendment No. 1.
392 condominium desiring to be a candidate for board membership must
393 comply with sub-subparagraph 4.a. and must be eligible to be a
394 candidate to serve on the board of directors at the time of the
395 deadline for submitting a notice of intent to run in order to
396 have his or her name listed as a proper candidate on the ballot
397 or to serve on the board. A person who has been suspended or
398 removed by the division under this chapter, or who is delinquent
399 in the payment of any monetary obligation due to the
400 association, is not eligible to be a candidate for board
401 membership and may not be listed on the ballot. A person who has
402 been convicted of any felony in this state or in a United States
403 District or Territorial Court, or who has been convicted of any
404 offense in another jurisdiction which would be considered a
405 felony if committed in this state, is not eligible for board
406 membership unless such felon's civil rights have been restored
407 for at least 5 years as of the date such person seeks election
408 to the board. The validity of an action by the board is not
409 affected if it is later determined that a board member is
410 ineligible for board membership due to having been convicted of
411 a felony. This subparagraph does not limit the term of a member
412 of the board of a nonresidential or timeshare condominium.
413 3. The bylaws must provide the method of calling meetings
414 of unit owners, including annual meetings. Written notice of an
415 annual meeting must include an agenda~, must be mailed, hand
416 delivered, or electronically transmitted to each unit owner at
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Bill No. HB 623 (2020)
Amendment No. 1.
417 least 14 days before the annual meeting~7 and HH::tS-t be posted in
418 a conspicuous place on the condominium property at least 14
419 continuous days before the annual meeting. Written notice of a
420 meeting other than an annual meeting must include an agenda; be
421 mailed, hand delivered, or electronically transmitted to each
422 unit owner; and be posted in a conspicuous place on the
423 condominium property in accordance with the minimum period of
424 time for posting a notice as set forth in the bylaws, and if the
425 bylaws do not provide such notice requirements, then at least 14
426 continuous days before the meeting. Upon notice to the unit
427 owners, the board shall, by duly adopted rule, designate a
428 specific location on the condominium property where all notices
429 of unit owner meetings must be posted. This requirement does not
430 apply if there is no condominium property for posting notices.
431 In lieu of, or in addition to, the physical posting of meeting
432 notices, the association may, by reasonable rule, adopt a
433 procedure for conspicuously posting and repeatedly broadcasting
434 the notice and the agenda on a closed-circuit cable television
435 system serving the condominium association. However, if
436 broadcast notice is used in lieu of a notice posted physically
437 on the condominium property, the notice and agenda must be
438 broadcast at least four times every broadcast hour of each day
439 that a posted notice is otherwise required under this section.
440 If broadcast notice is provided, the notice and agenda must be
441 broadcast in a manner and for a sufficient continuous length of
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Bill No. HB 623 (2020)
Amendment No. 1.
442 time so as to allow an average reader to observe the notice and
443 read and comprehend the entire content of the notice and the
444 agenda. In addition to any of the authorized means of providing
445 notice of a meeting of the board, the association may, by rule,
446 adopt a procedure for conspicuously posting the meeting notice
447 and the agenda on a website serving the condominium association
448 for at least the minimum period of time for which a notice of a
449 meeting is also required to be physically posted on the
450 condominium property. Any rule adopted shall, in addition to
451 other matters, include a requirement that the association send
452 an electronic notice in the same manner as a notice for a
453 meeting of the members, which must include a hyperlink to the
454 website where the notice is posted, to unit owners whose e-mail
455 addresses are included in the association's official records.
456 Unless a unit owner waives in writing the right to receive
457 notice of the annual meeting, such notice must be hand
458 delivered, mailed, or electronically transmitted to each unit
459 owner. Notice for meetings and notice for all other purposes
460 must be mailed to each unit owner at the address last furnished
461 to the association by the unit owner, or hand delivered to each
462 unit owner. However, if a unit is owned by more than one person,
463 the association must provide notice to the address that the
464 developer identifies for that purpose and thereafter as one or
465 more of the owners of the unit advise the association in
466 writing, or if no address is given or the owners of the unit do
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Bill No. HB 623 (2020)
Amendment No. 1.
467 not agree, to the address provided on the deed of record. An
468 officer of the association, or the manager or other person
469 providing notice of the association meeting, must provide an
470 affidavit or United States Postal Service certificate of
471 mailing, to be included in the official records of the
472 association affirming that the notice was mailed or hand
473 delivered in accordance with this provision.
474 4. The members of the board of a residential condominium
475 shall be elected by written ballot or voting machine. Proxies
476 may not be used in electing the board in general elections or
477 elections to fill vacancies caused by recall, resignation, or
478 otherwise, unless otherwise provided in this chapter. This
479 subparagraph does not apply to an association governing a
480 timeshare condominium.
481 a. At least 60 days before a scheduled election, the
482 association shall mail, deliver, or electronically transmit, by
483 separate association mailing or included in another association
484 mailing, delivery, or transmission, including regularly
485 published newsletters, to each unit owner entitled to a vote, a
486 first notice of the date of the election. A unit owner or other
487 eligible person desiring to be a candidate for the board must
488 give written notice of his or her intent to be a candidate to
489 the association at least 40 days before a scheduled election.
490 Together with the written notice and agenda as set forth in
491 subparagraph 3., the association shall mail, deliver, or
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Bill No. HB 623 (2020)
Amendment No. 1.
492 electronically transmit a second notice of the election to all
493 unit owners entitled to vote, together with a ballot that lists
494 all candidates not less than 14 days or more than 34 days before
495 the date of the election. Upon request of a candidate, an
496 information sheet, no larger than 8 1/2 inches by 11 inches,
497 which must be furnished by the candidate at least 35 days before
498 the election, must be included with the mailing, delivery, or
499 transmission of the ballot, with the costs of mailing, delivery,
500 or electronic transmission and copying to be borne by the
501 association. The association is not liable for the contents of
502 the information sheets prepared by the candidates. In order to
503 reduce costs, the association may print or duplicate the
504 information sheets on both sides of the paper. The division
505 shall by rule establish voting procedures consistent with this
506 sub-subparagraph, including rules establishing procedures for
507 giving notice by electronic transmission and rules providing for
508 the secrecy of ballots. Elections shall be decided by a
509 plurality of ballots cast. There is no quorum requirement;
510 however, at least 20 percent of the eligible voters must cast a
511 ballot in order to have a valid election. A unit owner may not
512 authorize any other person to vote his or her ballot, and any
513 ballots improperly cast are invalid. A unit owner who violates
514 this provision may be fined by the association in accordance
515 withs. 718.303. A unit owner who needs assistance in casting
516 the ballot for the reasons stated ins. 101.051 may obtain such
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Bill No. HB 623 (2020)
Amendment No. 1.
517 assistance. The regular election must occur on the date of the
518 annual meeting. Notwithstanding this sub-subparagraph, an
519 election is not required unless more candidates file notices of
520 intent to run or are nominated than board vacancies exist.
521 b. Within 90 days after being elected or appointed to the
522 board of an association of a residential condominium, each newly
523 elected or appointed director shall certify in writing to the
524 secretary of the association that he or she has read the
525 association's declaration of condominium, articles of
526 incorporation, bylaws, and current written policies; that he or
527 she will work to uphold such documents and policies to the best
528 of his or her ability; and that he or she will faithfully
529 discharge his or her fiduciary responsibility to the
530 association's members. In lieu of this written certification,
531 within 90 days after being elected or appointed to the board,
532 the newly elected or appointed director may submit a certificate
533 of having satisfactorily completed the educational curriculum
534 administered by a division-approved condominium education
535 provider within 1 year before or 90 days after the date of
536 election or appointment. The written certification or
537 educational certificate is valid and does not have to be
538 resubmitted as long as the director serves on the board without
539 interruption. A director of an association of a residential
540 condominium who fails to timely file the written certification
541 or educational certificate is suspended from service on the
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Bill No. HB 623 (2020)
Amendment No. 1.
542 board until he or she complies with this sub-subparagraph. The
543 board may temporarily fill the vacancy during the period of
544 suspension. The secretary shall cause the association to retain
545 a director's written certification or educational certificate
546 for inspection by the members for 5 years after a director's
547 election or the duration of the director's uninterrupted tenure,
548 whichever is longer. Failure to have such written certification
549 or educational certificate on file does not affect the validity
550 of any board action.
551 c. Any challenge to the election process must be commenced
552 within 60 days after the election results are announced.
553 5. Any approval by unit owners called for by this chapter
554 or the applicable declaration or bylaws, including, but not
555 limited to, the approval requirement ins. 718.111(8), must be
556 made at a duly noticed meeting of unit owners and is subject to
557 all requirements of this chapter or the applicable condominium
558 documents relating to unit owner decisionmaking, except that
559 unit owners may take action by written agreement, without
560 meetings, on matters for which action by written agreement
561 without meetings is expressly allowed by the applicable bylaws
562 or declaration or any law that provides for such action.
563 6. Unit owners may waive notice of specific meetings if
564 allowed by the applicable bylaws or declaration or any law.
565 Notice of meetings of the board of administration, unit owner
566 meetings, except unit owner meetings called to recall board
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
567 members under paragraph (j), and committee meetings may be given
568 by electronic transmission to unit owners who consent to receive
569 notice by electronic transmission. A unit owner who consents to
570 receiving notices by electronic transmission is solely
571 responsible for removing or bypassing filters that block receipt
572 of mass e-mails emails sent to members on behalf of the
573 association in the course of giving electronic notices.
574 7. Unit owners have the right to participate in meetings
575 of unit owners with reference to all designated agenda items.
576 However, the association may adopt reasonable rules governing
577 the frequency, duration, and manner of unit owner participation.
578 8. A unit owner may tape record or videotape a meeting of
579 the unit owners subject to reasonable rules adopted by the
580 division.
581 9. Unless otherwise provided in the bylaws, any vacancy
582 occurring on the board before the expiration of a term may be
583 filled by the affirmative vote of the majority of the remaining
584 directors, even if the remaining directors constitute less than
585 a quorum, or by the sole remaining director. In the alternative,
586 a board may hold an election to fill the vacancy, in which case
587 the election procedures must conform to sub-subparagraph 4.a.
588 unless the association governs 10 units or fewer and has opted
589 out of the statutory election process, in which case the bylaws
590 of the association control. Unless otherwise provided in the
591 bylaws, a board member appointed or elected under this section
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
592 shall fill the vacancy for the unexpired term of the seat being
593 filled. Filling vacancies created by recall is governed by
594 paragraph (j) and rules adopted by the division.
595 10. This chapter does not limit the use of general or
596 limited proxies, require the use of general or limited proxies,
597 or require the use of a written ballot or voting machine for any
598 agenda item or election at any meeting of a timeshare
599 condominium association or nonresidential condominium
600 association.
601
602 Notwithstanding subparagraph (b)2. and sub-subparagraph 4.a., an
603 association of 10 or fewer units may, by affirmative vote of a
604 majority of the total voting interests, provide for different
605 voting and election procedures in its bylaws, which may be by a
606 proxy specifically delineating the different voting and election
607 procedures. The different voting and election procedures may
608 provide for elections to be conducted by limited or general
609 proxy.
610 (i) Transfer fees.-An association may not RB charge an
611 applicant any fees, except the actual costs of any background
612 check or screening performed shall be made by the association~
613 or any body thereof in connection with the sale, mortgage,
614 lease, sublease, or other transfer of a unit unless the
615 association is required to approve such transfer and a fee for
616 such approval is provided for in the declaration, articles, or
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
617 bylaws. Except for the actual costs of any background check or
618 screening performed by the association, any such fee may be
619 preset, but may not in no event may such fee exceed $100 per
620 applicant other than spouses or parent and dependent child, who
621 husband/wife or parent/dependent child, which are considered one
622 applicant. However, if the lease or sublease is a renewal of a
623 lease or sublease with the same lessee or sublessee, a charge
624 may not no charge shall be made. The foregoing notwithstanding,
625 an association may, if the authority to do so appears in the
626 declaration, articles, or bylaws, require that a prospective
627 lessee place a security deposit, in an amount not to exceed the
628 equivalent of 1 month's rent, into an escrow account maintained
629 by the association. The security deposit shall protect against
630 damages to the common elements or association property. Payment
631 of interest, claims against the deposit, refunds, and disputes
632 under this paragraph shall be handled in the same fashion as
633 provided in part II of chapter 83.
634 (p) Service providers; conflicts of interest. ~n
635 association, which is not a timeshare condominium association,
63 6 may not employ or contract with any service provider that is
637 owned or operated by a board member or with any person who has a
638 financial relationship with a board member or officer, or a
639 relative within the third degree of consanguinity by blood or
640 marriage of a board member or officer. This paragraph does not
641 apply to a service provider in which a board member or officer,
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
642 or a relative within the third degree of consanguinity by blood
64 3 or marriage of a board member or officer, owns less than 1
644 percent of the equity shares.
645 Section 5. Subsection (8) of section 718.113, Florida
646 Statutes, is amended to read:
647 718.113 Maintenance; limitation upon improvement; display
648 of flag; hurricane shutters and protection; display of religious
649 decorations.-
650 (8) The Legislature finds that the use of electric
651 vehicles and alternative fuel vehicles conserves and protects
652 the state's environmental resources, provides significant
653 economic savings to drivers, and serves an important public
654 interest. The participation of condominium associations is
655 essential to the state's efforts to conserve and protect the
656 state's environmental resources and provide economic savings to
657 drivers. For purposes of this subsection "alternative fuel" has
658 the same meaning as provided ins. 403.42. For purposes of this
659 section "alternative fuel vehicle" means any motor vehicle, as
660 defined ins. 320.01, that is powered by an alternative fuel or
661 a combination of alternative fuels. Therefore, the installation
662 of an electric vehicle charging station or alternative fuel
663 station shall be governed as follows:
664 (a) A declaration of condominium or restrictive covenant
665 may not prohibit or be enforced so as to prohibit any unit owner
666 from installing an electric vehicle charging station or
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Bill No. HB 623 (2020)
Amendment No. 1.
667 alternative fuel station within the boundaries of the unit
668 owner's limited common element or exclusively designated parking
669 area. The board of administration of a condominium association
670 may not prohibit a unit owner from installing an electric
671 vehicle charging station for an electric vehicle, as defined in
672 s. 320.01, or an alternative fuel station for an alternative
673 fuel vehicle within the boundaries of his or her limited common
674 element or exclusively designated parking area. The installation
675 of such charging or fueling stations are subject to the
676 provisions of this subsection.
677 (b) The installation may not cause irreparable damage to
678 the condominium property.
679 (c) The electricity for the electric vehicle charging
680 station or the alternative fuel station must be separately
681 metered or must use an embedded meter and be payable by the unit
682 owner installing such charging station.
683 (d) The supply and storage of the alternative fuel must be
684 paid by the unit owner installing such fuel station.
685 (e)-f-a+- The unit owner who is installing an electric
686 vehicle charging station or an alternative fuel station is
687 responsible for the costs of installation, operation,
688 maintenance, and repair, including, but not limited to, hazard
689 and liability insurance. The association may enforce payment of
690 such costs pursuant to s. 718.116.
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
691 (f)-f-et If the unit owner or his or her successor decides
692 there is no longer a need for the electronic vehicle charging
693 station or alternative fuel station, such person is responsible
694 for the cost of removal of the electronic vehicle charging
695 station or alternative fuel station. The association may enforce
696 payment of such costs pursuant to s. 718.116.
697 (g) The unit owner installing the electronic vehicle
698 charging station or alternative fuel station or his or her
699 successor shall be responsible for complying with all federal,
700 state, or local laws or regulations that apply to the
701 installation, maintenance, or removal of such charging or
702 fueling stations.
703 J..bj_-f-£-t The association may require the unit owner to:
704 1. Comply with bona fide safety requirements, consistent
705 with applicable building codes or recognized safety standards,
706 for the protection of persons and property.
707 2. Comply with reasonable architectural standards adopted
708 by the association that govern the dimensions, placement, or
709 external appearance of the electric vehicle charging station or
710 alternative fuel station, provided that such standards may not
711 prohibit the installation of such charging or fuel station or
712 substantially increase the cost thereof.
713 3. Engage the services of a licensed and registered
714 electrical contractor or engineer familiar with the installation
715 and core requirements of an electric vehicle charging station~
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
716 or licensed engineer familiar with the installation and core
717 requirements of an alternative fuel charging station.
718 4. Provide a certificate of insurance naming the
719 association as an additional insured on the owner's insurance
720 policy for any claim related to the installation, maintenance,
721 or use of the electric vehicle charging station or alternative
722 fuel charging station within 14 days after receiving the
723 association's approval to install such charging or fuel station.
724 5. Reimburse the association for the actual cost of any
725 increased insurance premium amount attributable to the electric
726 vehicle charging station or alternative fuel charging station
727 within 14 days after receiving the association's insurance
728 premium invoice.
729 JjJ_~ The association provides an implied easement across
730 the common elements of the condominium property to the unit
731 owner for purposes of the installation of the electric vehicle
732 charging station or alternative fuel charging station and the
733 furnishing of electrical power, including any necessary
734 equipment, and the storage of any alternative fuel, including
735 any necessary equipment, to such charging or fuel station,
736 subject to the requirements of this subsection.
737 Section 6. Section 6. Subsection (1) and paragraph (b)
738 of subsection (3) of section 718.303, Florida Statutes, are
739 amended to read:
740 718.303 Obligations of owners and occupants; remedies.-
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
741 (1) Each unit owner, e-aeR- tenant and other invitee, and
742 e-aeR- association is governed by, and must comply with the
743 provisions of, this chapter, the declaration, the documents
744 creating the association, and the association bylaws which are
745 shall be deemed expressly incorporated into any lease of a unit.
746 Actions at law or in equity for damages or for injunctive
747 relief, or both, for failure to comply with these provisions may
748 be brought by the association or by a unit owner against:
749 (a) The association.
750 (b) A unit owner.
751 (c) Directors designated by the developer, for actions
752 taken by them before control of the association is assumed by
753 unit owners other than the developer.
754 (d) Any director who willfully and knowingly fails to
755 comply with these provisions.
756 (e) Any tenant leasing a unit, and any other invitee
757 occupying a unit.
758
759 The prevailing party in any such action or in any action in
760 which the purchaser claims a right of voidability based upon
761 contractual provisions as required ins. 718.503(1) (a) is
762 entitled to recover reasonable attorney attorney's fees. A unit
763 owner prevailing in an action between the association and the
764 unit owner under this subsection section, in addition to
765 recovering his or her reasonable attorney attorney's fees, may
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Bill No. HB 623 (2020)
Amendment No. 1.
766 recover additional amounts as determined by the court to be
767 necessary to reimburse the unit owner for his or her share of
768 assessments levied by the association to fund its expenses of
769 the litigation. This relief does not exclude other remedies
770 provided by law. Actions arising under this subsection are not
771 considered may not be deemed to be actions for specific
772 performance.
773 (3) The association may levy reasonable fines for the
774 failure of the owner of the unit or its occupant, licensee, or
775 invitee to comply with any provision of the declaration, the
776 association bylaws, or reasonable rules of the association. A
777 fine may not become a lien against a unit. A fine may be levied
778 by the board on the basis of each day of a continuing violation,
779 with a single notice and opportunity for hearing before a
780 committee as provided in paragraph (b). However, the fine may
781 not exceed $100 per violation, or $1,000 in the aggregate.
782 (b) A fine or suspension levied by the board of
783 administration may not be imposed unless the board first
784 provides at least 14 days' written notice to the unit owner and,
785 if applicable, any tenant occupant, licensee, or invitee of the
786 unit owner sought to be fined or suspended, and an opportunity
787 for a hearing before a committee of at least three members
788 appointed by the board who are not officers, directors, or
789 employees of the association, or the spouse, parent, child,
790 brother, or sister of an officer, director, or employee. The
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
791 role of the committee is limited to determining whether to
792 confirm or reject the fine or suspension levied by the board. If
793 the committee does not approve the proposed fine or suspension
794 by majority vote, the fine or suspension may not be imposed. If
795 the proposed fine or suspension is approved by the committee,
796 the fine payment is due 5 days after notice of the approved fine
797 is provided to the unit owner and, if applicable, to any tenant,
798 licensee, or invitee of the unit owner the date of the coH1fRittee
799 meeting at which the fine is approved. The association must
800 provide written notice of such fine or suspension by mail or
801 hand delivery to the unit owner and, if applicable, to any
802 tenant, licensee, or invitee of the unit owner.
803 Section 7. Section 718.5014, Florida Statutes, is amended
804 to read:
805 718.5014 Ombudsman location.-The ombudsman shall maintain
806 his or her principal office in~ Leon County on the premises of
807 the division or, if suitable space cannot be provided there, at
808 another place convenient to the offices of the division which
809 will enable the ombudsman to expeditiously carry out the duties
810 and functions of his or her office. The ombudsman may establish
811 branch offices elsewhere in the state upon the concurrence of
812 the Governor.
813 Section 8. Subsection (25) of section 719.103, Florida
814 Statutes, is amended to read:
815 719.103 Definitions.-As used in this chapter:
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
816 (25) "Unit" means a part of the cooperative property which
817 is subject to exclusive use and possession. A unit may be
818 improvements, land, or land and improvements together, as
819 specified in the cooperative documents. An interest in a unit is
820 an interest in real property.
821 Section 9. Paragraph (c) of subsection (2) of section
822 719.104, Florida Statutes, is amended to read:
823 719.104 Cooperatives; access to units; records; financial
824 reports; assessments; purchase of leases.-
825 (2) OFFICIAL RECORDS.-
826 (c) The official records of the association are open to
827 inspection by any association member or the authorized
828 representative of such member at all reasonable times. The right
829 to inspect the records includes the right to make or obtain
830 copies, at the reasonable expense, if any, of the association
831 member. The association may adopt reasonable rules regarding the
832 frequency, time, location, notice, and manner of record
833 inspections and copying, but may not require a member to
834 demonstrate any purpose or state any reason for the inspection.
835 The failure of an association to provide the records within 10
836 working days after receipt of a written request creates a
837 rebuttable presumption that the association willfully failed to
838 comply with this paragraph. A member unit owner who is denied
839 access to official records is entitled to the actual damages or
840 minimum damages for the association's willful failure to comply.
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
841 The minimum damages are $50 per calendar day for up to 10 days,
842 beginning on the 11th working day after receipt of the written
843 request. The failure to permit inspection entitles any person
844 prevailing in an enforcement action to recover reasonable
845 attorney fees from the person in control of the records who,
846 directly or indirectly, knowingly denied access to the records.
847 Any person who knowingly or intentionally defaces or destroys
848 accounting records that are required by this chapter to be
849 maintained during the period for which such records are required
850 to be maintained, or who knowingly or intentionally fails to
851 create or maintain accounting records that are required to be
852 created or maintained, with the intent of causing harm to the
853 association or one or more of its members, is personally subject
854 to a civil penalty under pursuant to s. 719. 501 (1) (d). The
855 association shall maintain an adequate number of copies of the
856 declaration, articles of incorporation, bylaws, and rules, and
857 all amendments to each of the foregoing, as well as the question
858 and answer sheet as described ins. 719.504 and year-end
859 financial information required by the department, on the
860 cooperative property to ensure their availability to members
861 unit owners and prospective purchasers, and may charge its
862 actual costs for preparing and furnishing these documents to
863 those requesting the same. An association shall allow a member
864 or his or her authorized representative to use a portable
865 device, including a smartphone, tablet, portable scanner, or any
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
866 other technology capable of scanning or taking photographs, to
867 make an electronic copy of the official records in lieu of the
868 association providing the member or his or her authorized
869 representative with a copy of such records. The association may
870 not charge a member or his or her authorized representative for
871 the use of a portable device. Notwithstanding this paragraph,
872 the following records shall not be accessible to members ttt'H:-'E-
873 owners:
874 1. Any record protected by the lawyer-client privilege as
875 described ins. 90.502 and any record protected by the work-
876 product privilege, including any record prepared by an
877 association attorney or prepared at the attorney's express
878 direction which reflects a mental impression, conclusion,
879 litigation strategy, or legal theory of the attorney or the
880 association, and which was prepared exclusively for civil or
881 criminal litigation or for adversarial administrative
882 proceedings, or which was prepared in anticipation of such
883 litigation or proceedings until the conclusion of the litigation
884 or proceedings.
885 2. Information obtained by an association in connection
886 with the approval of the lease, sale, or other transfer of a
887 unit.
888 3. Personnel records of association or management company
889 employees, including, but not limited to, disciplinary, payroll,
890 health, and insurance records. For purposes of this
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
891 subparagraph, the term "personnel records" does not include
892 written employment agreements with an association employee or
893 management company, or budgetary or financial records that
894 indicate the compensation paid to an association employee.
895 4. Medical records of unit owners.
896 5. Social security numbers, driver license numbers, credit
897 card numbers, e-mail addresses, telephone numbers, facsimile
898 numbers, emergency contact information, addresses of a unit
899 owner other than as provided to fulfill the association's notice
900 requirements, and other personal identifying information of any
901 person, excluding the person's name, unit designation, mailing
902 address, property address, and any address, e-mail address, or
903 facsimile number provided to the association to fulfill the
904 association's notice requirements. Notwithstanding the
905 restrictions in this subparagraph, an association may print and
906 distribute to unit parcel owners a directory containing the
907 name, unit parcel address, and all telephone numbers of each
908 unit parcel owner. However, an owner may exclude his or her
909 telephone numbers from the directory by so requesting in writing
910 to the association. An owner may consent in writing to the
911 disclosure of other contact information described in this
912 subparagraph. The association is not liable for the inadvertent
913 disclosure of information that is protected under this
914 subparagraph if the information is included in an official
915 record of the association and is voluntarily provided by an
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
916 owner and not requested by the association.
917 6. Electronic security measures that are used by the
918 association to safeguard data, including passwords.
919 7. The software and operating system used by the
920 association which allow the manipulation of data, even if the
921 owner owns a copy of the same software used by the association.
922 The data is part of the official records of the association.
923 Section 10. Paragraph (b) of subsection (1) of section
924 719.106, Florida Statutes, is amended, and subsection (3) is
925 added to that section, to read:
926 719.106 Bylaws; cooperative ownership.-
927 (1) MANDATORY PROVISIONS.-The bylaws or other cooperative
928 documents shall provide for the following, and if they do not,
929 they shall be deemed to include the following:
930 (b) Quorum; voting requirements; proxies.-
931 1. Unless otherwise provided in the bylaws, the percentage
932 of voting interests required to constitute a quorum at a meeting
933 of the members shall be a majority of voting interests, and
934 decisions shall be made by owners of a majority of the voting
935 interests. Unless otherwise provided in this chapter, or in the
936 articles of incorporation, bylaws, or other cooperative
937 documents, and except as provided in subparagraph (d)l.,
938 decisions shall be made by owners of a majority of the voting
939 interests represented at a meeting at which a quorum is present.
940 2. Except as specifically otherwise provided herein, after
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
941 January 1, 1992, unit owners may not vote by general proxy, but
942 may vote by limited proxies substantially conforming to a
943 limited proxy form adopted by the division. Limited proxies and
944 general proxies may be used to establish a quorum. Limited
945 proxies shall be used for votes taken to waive or reduce
946 reserves in accordance with subparagraph (j)2., for votes taken
947 to waive the financial reporting requirements of s.
94 8 719. 104 ( 4) (b) , for votes taken to amend the articles of
949 incorporation or bylaws pursuant to this section, and for any
950 other matter for which this chapter requires or permits a vote
951 of the unit owners. Except as provided in paragraph (d), after
952 January 1, 1992, no proxy, limited or general, shall be used in
953 the election of board members. General proxies may be used for
954 other matters for which limited proxies are not required, and
955 may also be used in voting for nonsubstantive changes to items
956 for which a limited proxy is required and given. Notwithstanding
957 the provisions of this section, unit owners may vote in person
958 at unit owner meetings. Nothing contained herein shall limit the
959 use of general proxies or require the use of limited proxies or
960 require the use of limited proxies for any agenda item or
961 election at any meeting of a timeshare cooperative.
962 3. Any proxy given shall be effective only for the
963 specific meeting for which originally given and any lawfully
964 adjourned meetings thereof. In no event shall any proxy be valid
965 for a period longer than 90 days after the date of the first
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
966 meeting for which it was given. Every proxy shall be revocable
967 at any time at the pleasure of the unit owner executing it.
968 4. A member of the board of administration or a committee
969 may submit in writing his or her agreement or disagreement with
970 any action taken at a meeting that the member did not attend.
971 This agreement or disagreement may not be used as a vote for or
972 against the action taken and may not be used for the purposes of
973 creating a quorum.
974 5. A board or committee member participating in a meeting
975 via telephone, real-time video conferencing, or similar real-
976 time electronic or video communication counts toward a quorum,
977 and such member may vote as if physically present When some or
978 all of the board or committee members meet by telephone
97 9 conference, those board or committee members attending by
980 telephone conference may be counted toward obtaining a quorum
981 and may vote by telephone. A telephone speaker must shall be
982 used utilized so that the conversation of such those board or
983 committee members attending by telephone may be heard by the
984 board or committee members attending in person, as well as by
985 any unit owners present at a meeting.
986 (3) GENERALLY.-Any provision of the declaration, the
987 association bylaws, or reasonable rules or regulations of the
988 association which diminish or infringe upon any right protected
989 under the Fourteenth Amendment to the United States Constitution
990 ors. 2, Art. I of the State Constitution is void and
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
991 unenforceable without further action of the association. The
992 association may record a notice in the public records of the
993 county in which the cooperative is located evidencing its
994 intention to not enforce such provision. The failure of the
995 association to record a notice in the public record may not be
996 the basis for liability or evidence of discrimination or a
997 discriminatory intention.
998 Section 11. Section 11. Paragraph (1) of subsection (4)
999 of section 720.303, Florida Statutes, is redesignated as
1000 paragraph (m), paragraph (c) of subsection (2) is amended, and a
1001 new paragraph (1) is added to subsection (4) of that section, to
1002 read:
1003 720.303 Association powers and duties; meetings of board;
1004 official records; budgets; financial reporting; association
1005 funds; recalls.-
1006 (2) BOARD MEETINGS.-
1007 (c) The bylaws shall provide the following for giving
1008 notice to parcel owners and members of all board meetings and,
1009 if they do not do so, shall be deemed to include the following:
1010 1. Notices of all board meetings must be posted in a
1011 conspicuous place in the community at least 48 hours in advance
1012 of a meeting, except in an emergency. In the alternative, if
1013 notice is not posted in a conspicuous place in the community,
1014 notice of each board meeting must be mailed or delivered to each
1015 member at least 7 days before the meeting, except in an
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
1016 emergency. Notwithstanding this general notice requirement, for
1017 communities with more than 100 members, the association bylaws
1018 may provide for a reasonable alternative to posting or mailing
1019 of notice for each board meeting, including publication of
1020 notice, provision of a schedule of board meetings, or the
1021 conspicuous posting and repeated broadcasting of the notice on a
1022 closed-circuit cable television system serving the homeowners'
1023 association. However, if broadcast notice is used in lieu of a
1024 notice posted physically in the community, the notice must be
1025 broadcast at least four times every broadcast hour of each day
1026 that a posted notice is otherwise required. When broadcast
1027 notice is provided, the notice and agenda must be broadcast in a
1028 manner and for a sufficient continuous length of time so as to
1029 allow an average reader to observe the notice and read and
1030 comprehend the entire content of the notice and the agenda. In
1031 addition to any of the authorized means of providing notice of a
1032 meeting of the board, the association may, by rule, adopt a
1033 procedure for conspicuously posting the meeting notice and the
1034 agenda on the association's website for at least the minimum
1035 period of time for which a notice of a meeting is also required
1036 to be physically posted on the association property. Any rule
1037 adopted shall, in addition to other matters, include a
1038 requirement that the association send an electronic notice in
1039 the same manner as is required for a notice of a meeting of the
1040 members, which must include a hyperlink to the website where the
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
1041 notice is posted, to members whose e-mail addresses are included
1042 in the association's official records. The association may
1043 provide notice by electronic transmission in a manner authorized
1044 by law for meetings of the board of directors, committee
1045 meetings requiring notice under this section, and annual and
1046 special meetings of the members to any member who has provided a
1047 facsimile number or e-mail address to the association to be used
1048 for such purposes; however, a member must consent in writing to
1049 receiving notice by electronic transmission.
1050 2. An assessment may not be levied at a board meeting
1051 unless the notice of the meeting includes a statement that
1052 assessments will be considered and the nature of the
1053 assessments. Written notice of any meeting at which special
1054 assessments will be considered or at which amendments to rules
1055 regarding parcel use will be considered must be mailed,
1056 delivered, or electronically transmitted to the members and
1057 parcel owners and posted conspicuously on the property or
1058 broadcast on closed-circuit cable television not less than 14
1059 days before the meeting.
1060 3. Directors may not vote by proxy or by secret ballot at
1061 board meetings, except that secret ballots may be used in the
1062 election of officers. This subsection also applies to the
1063 meetings of any committee or other similar body, when a final
1064 decision will be made regarding the expenditure of association
1065 funds, and to any body vested with the power to approve or
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Bill No. HB 623 (2020)
Amendment No. 1.
1066 disapprove architectural decisions with respect to a specific
1067 parcel of residential property owned by a member of the
1068 community.
1069 (4) OFFICIAL RECORDS.-The association shall maintain each
1070 of the following items, when applicable, which constitute the
1071 official records of the association:
1072 (1) Ballots, sign-in sheets, voting proxies, and all other
1073 papers and electronic records relating to voting by parcel
1074 owners, which must be maintained for at least 1 year after the
1075 date of the election, vote, or meeting.
1076 ~-f-±-t All other written records of the association not
1077 specifically included in this subsection the foregoing which are
1078 related to the operation of the association.
1079 Section 12. Subsections (1) and (2) of section 720.305,
1080 Florida Statutes, are amended to read:
1081 720.305 Obligations of members; remedies at law or in
1082 equity; levy of fines and suspension of use rights.-
1083 (1) Each member and the member's tenants, guests, and
1084 invitees, and each association, are governed by, and must comply
1085 with, this chapter and7 the governing documents of the
1086 community, and the rules of the association. Actions at law or
1087 in equity, or both, to redress alleged failure or refusal to
1088 comply with these provisions may be brought by the association
1089 or by any member against:
1090 (a) The association;
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
1091 (b) A member;
1092 (c) Any director or officer of an association who
1093 willfully and knowingly fails to comply with these provisions;
1094 and
1095 (d) Any tenants, guests, or invitees occupying a parcel or
1096 using the common areas.
1097
1098 The prevailing party in any such litigation is entitled to
1099 recover reasonable attorney fees and costs. A member prevailing
1100 in an action between the association and the member under this
1101 section, in addition to recovering his or her reasonable
1102 attorney fees, may recover additional amounts as determined by
1103 the court to be necessary to reimburse the member for his or her
1104 share of assessments levied by the association to fund its
1105 expenses of the litigation. This relief does not exclude other
1106 remedies provided by law. This section does not deprive any
1107 person of any other available right or remedy.
1108 (2) An !ffte association may levy reasonable fines. A fine
1109 may not exceed $100 per violation against any member or any
1110 member's tenant, guest, or invitee for the failure of the owner
1111 of the parcel or its occupant, licensee, or invitee to comply
1112 with any provision of the declaration, the association bylaws,
1113 or reasonable rules of the association unless otherwise provided
1114 in the governing documents. A fine may be levied by the board
1115 for each day of a continuing violation, with a single notice and
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Bill No. HB 623 (2020)
Amendment No. 1.
1116 opportunity for hearing, except that the fine may not exceed
1117 $1,000 in the aggregate unless otherwise provided in the
1118 governing documents. A fine of less than $1,000 may not become a
1119 lien against a parcel. In any action to recover a fine, the
1120 prevailing party is entitled to reasonable attorney fees and
1121 costs from the nonprevailing party as determined by the court.
1122 (a) An association may suspend, for a reasonable period of
1123 time, the right of a member, or a member's tenant, guest, or
1124 invitee, to use common areas and facilities for the failure of
1125 the owner of the parcel or its occupant, licensee, or invitee to
1126 comply with any provision of the declaration, the association
1127 bylaws, or reasonable rules of the association. This paragraph
1128 does not apply to that portion of common areas used to provide
1129 access or utility services to the parcel. A suspension may not
1130 prohibit an owner or tenant of a parcel from having vehicular
1131 and pedestrian ingress to and egress from the parcel, including,
1132 but not limited to, the right to park.
1133 (b) A fine or suspension levied by the board of
1134 administration may not be imposed unless the board first
1135 provides at least 14 days' notice to the parcel owner and, if
1136 applicable, any occupant, licensee, or invitee of the parcel
1137 owner, sought to be fined or suspended and an opportunity for a
1138 hearing before a committee of at least three members appointed
1139 by the board who are not officers, directors, or employees of
1140 the association, or the spouse, parent, child, brother, or
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
1141 sister of an officer, director, or employee. If the committee,
1142 by majority vote, does not approve a proposed fine or
1143 suspension, the proposed fine or suspension may not be imposed.
1144 The role of the committee is limited to determining whether to
1145 confirm or reject the fine or suspension levied by the board. If
1146 the proposed fine or suspension levied by the board is approved
1147 by the committee, the fine payment is due 5 days after notice of
1148 the approved fine is provided to the parcel owner and, if
1149 applicable, to any occupant, licensee, or invitee of the parcel
1150 owner the date of the coffiffiittee meeting at which the fine is
1151 approved. The association must provide written notice of such
1152 fine or suspension by mail or hand delivery to the parcel owner
1153 and, if applicable, to any occupant tenant, licensee, or invitee
1154 of the parcel owner.
1155 Section 13. Paragraph (g) of subsection (1) of section
1156 720.306, Florida Statutes, is amended to read:
1157 720.306 Meetings of members; voting and election
1158 procedures; amendments.-
1159 (1) QUORUM; AMENDMENTS.-
1160 (g) A notice required under this section must be mailed or
1161 delivered to the address identified as the parcel owner's
1162 mailing address in the official records of the association as
1163 required under s. 720.303(4) on the property appraiser's website
1164 for the county in which the parcel is located, or electronically
1165 transmitted in a manner authorized by the association if the
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
1166 parcel owner has consented, in writing, to receive notice by
1167 electronic transmission.
1168 Section 14. Subsection (6) is added to section 720.3075,
1169 Florida Statutes, to read:
1170 720.3075 Prohibited clauses in association documents.-
1171 (6) Any provision of the declaration, the association
1172 bylaws, or reasonable rules or regulations of the association
1173 which diminish or infringe upon any right protected under the
1174 Fourteenth Amendment to the United States Constitution ors. 2,
1175 Art. I of the State Constitution is void and unenforceable
1176 without further action of the association. The association may
1177 record a notice in the public records of the county in which the
1178 community is located evidencing its intention to not enforce
1179 such provision. The failure of the association to record a
1180 notice in the public record may not be the basis for liability
1181 or evidence of discrimination or a discriminatory intention.
1182 Section 15. This act shall take effect July 1, 2020.
1183
1184
1185
1186 T I T L E A ME N D ME N T
1187 Remove everything before the enacting clause and insert:
1188 An act relating to community associations; amending s.
1189 514.0115, F.S.; exempting certain property association
1190 pools from Department of Health regulations; amending
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
1191 s. 627.714, F.S.; prohibiting subrogation rights
1192 against a condominium association under certain
1193 circumstances; amending s. 718.111, F.S.; requiring
1194 certain records to be maintained for a specified time;
1195 prohibiting an association from requiring certain
1196 actions related to the inspection of records; revising
1197 requirements relating to certain condominium
1198 associations posting digital copies of certain
1199 documents; amending s. 718.112, F.S.; prohibiting
1200 certain provisions in governing documents; authorizing
1201 the association to record certain notice in the public
1202 record; limiting liability; specifying that only board
1203 service that occurs on or after a specified date may
1204 be used for calculating a board member's term limit;
1205 providing requirements for certain notices;
1206 prohibiting an association from charging certain fees;
1207 providing an exception; deleting a prohibition against
1208 employing or contracting with certain service
1209 providers; amending s. 718.113, F.S.; revising
1210 regulations for electric vehicles; providing that an
1211 association may not prohibit a unit owner from
1212 installing an alternate fuel station; providing
1213 requirements for installing such fuel station amending
1214 s. 718.303, F.S.; revising requirements for certain
1215 actions for failure to comply with specified
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 623 (2020)
Amendment No. 1.
1216 provisions; revising requirements for certain fines;
1217 amending s. 718.5014, F.S.; revising the location of
1218 the principal office of the Office of the Condominium
1219 Ombudsman; amending s. 719.103, F.S.; revising the
1220 definition of the term "unit" to specify that an
1221 interest in a cooperative unit is an interest in real
1222 property; amending s. 719.104, F.S.; prohibiting an
1223 association from requiring certain actions related to
1224 the inspection of records; amending s. 719.106, F.S.;
1225 revising provisions related to a quorum and voting
1226 rights for members remotely participating in meetings;
1227 prohibiting certain provisions in governing documents;
1228 authorizing the association to record certain notice
1229 in the public record; limiting liability; amending s.
1230 720.303, F.S.; authorizing an association to adopt
1231 procedures for electronic meeting notices; revising
1232 the documents that constitute the official records of
1233 an association; amending s. 720.305, F.S.; providing
1234 requirements for certain fines; amending s. 720.306,
1235 F.S.; revising requirements for providing certain
1236 notices; amending s. 720.3075, F.S.; prohibiting
1237 certain provisions in governing documents; authorizing
1238 the association to record certain notice in the public
1239 record; limiting liability; providing an effective
1240 date.
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HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL#: HB 6037 Individual Wine Containers
SPONSOR(S): LaMarca
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Business & Professions Subcommittee Willson f\\,J Anstead ~
2) Commerce Committee
SUMMARY ANALYSIS
In Florida, the Beverage Law regulates the manufacture, distribution, and sale of wine, beer, and liquor by
manufacturers, distributors, and vendors. The Division of Alcoholic Beverages and Tobacco in the Department
of Business and Professional Regulation administers and enforces the Beverage Law.
Section 564.05, F.S., prohibits the sale of wine in an individual container that holds more than one gallon of
wine. However, wine may be sold in a reusable container of 5.16 gallons. This applies to persons who sell wine
by the bottle, or retail sales. Pursuant to the Beverage Law, only licensed vendors are authorized to sell
alcoholic beverages at retail. Distributors and manufacturers may sell wine to other distributors and
manufacturers in containers of any size.
The bill repeals s. 564.05, F.S., relating to limitations on the size of individual wine containers.
The bill does not appear to have a fiscal impact on state or local governments.
The bill provides an effective date of July 1, 2020.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h6037.BPS.DOCX
DATE: 11/21/2019
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Beverage Law
In Florida, the Beverage Law 1 regulates the manufacture, distribution, and sale of wine, beer, and liquor
by manufacturers, distributors, and vendors. 2 The Division of Alcoholic Beverages and Tobacco
(Division) in the Department of Business and Professional Regulation (DBPR) administers and
enforces the Beverage Law. 3
"Alcoholic beverages" are defined in s. 561.01, F.S., as "distilled spirits and all beverages containing
one-half of 1 percent or more alcohol by volume." "Malt beverages" are brewed alcoholic beverages
containing malt. 4
Section 561.14, F.S., specifies the license and registration classifications used in the Beverage Law.
• "Manufacturers" are those "licensed to manufacture alcoholic beverages and distribute the same
at wholesale to licensed distributors and to no one else within the state, unless authorized by
statute."
• "Distributors" are those "licensed to sell and distribute alcoholic beverages at wholesale to
persons who are licensed to sell alcoholic beverages."
• "Importers" are those licensed to sell, or to cause to be sold, shipped, and invoiced, alcoholic
beverages to licensed manufacturers or licensed distributors, and to no one else in this state. 5
• "Vendors" are those "licensed to sell alcoholic beverages at retail only" and may not "purchase
or acquire in any manner for the purpose of resale any alcoholic beverages from any person not
licensed as a vendor, manufacturer, bottler, or distributor under the Beverage Law."
Wine Containers
Section 564.05, F.S., prohibits the sale of wine in an individual container that holds more than one
gallon of wine. However, wine may be sold in a reusable container of 5.16 gallons. This applies to a
person who sells wine by the bottle within the state. The size limitations appear to apply to vendors,
and thus at retail sales only.
Distributors and manufacturers may sell wine to other distributors and manufacturers in containers of
any size.
Any person who violates the prohibition commits a second-degree misdemeanor. 6
Effect of the Bill
The bill repeals s. 564.05, F.S., relating to limitations on the size of individual wine containers.
I
Section 561.01(6), F.S., provides that the "The Beverage Law" means chs. 561, 562, 563, 564, 565, 567, and 568, F.S.
2
Sees. 56l.l4, F.S.
3
S. 561.02, F.S.
4
S. 563.01, F.S.
5
S. 561.01(5), F.S.
6
Section 775.082, F.S., provides the penalty for a misdemeanor of the second degree is a term of imprisonment not exceeding 60
days. Section 775.083, F.S., provides the penalty for a misdemeanor of the second degree is a fine not to exceed $500.
STORAGE NAME: h6037.BPS.DOCX PAGE: 2
DATE: 11/21/2019
B. SECTION DIRECTORY:
Section 1 Repeals s. 564.05, F.S., relating to limitations on the size of individual wine containers.
Section 2 Provides for an effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
Ill. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill does not appear to create a need for rulemaking or rulemaking authority.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
STORAGE NAME: h6037.BPS.DOCX PAGE: 3
DATE: 11/21/2019
FLORIDA H O U S E O F REPRESENTATIVES
HB 6037 2020
1 A bill to be entitled
2 An act relating to individual wine containers;
3 repealing s. 564.05, F.S., relating to the limitation
4 of size of individual wine containers; providing an
5 effective date.
6
7 Be It Enacted by the Legislature of the State of Florida:
8
9 Section 1. Section 564.05, Florida Statutes, is repealed.
10 Section 2. This act shall take effect July 1, 2020.
Page 1 of 1
CODING: Words striokeR are deletions; words underlined are additions.
hb6037-00
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