Post Meeting Packet - Commerce and Tourism, The Florida Senate (March 2, 2021)
Summary
Post meeting packet for the Commerce and Tourism committee of The Florida Senate, meeting Tuesday, March 2, 2021, 1:30 to 3:30 p.m. in the Toni Jennings Committee Room, with Senator Hooper as Chair and Senator Wright as Vice Chair. The expanded agenda shows SB 72 (Civil Liability for Damages Relating to COVID-19, Brandes) Favorable, Yeas 7 Nays 4, SB 430 (Petroleum Fuel Measuring Devices, Rodriguez) Fav/CS, Yeas 11 Nays 0, and SB 848 (Electronic Legal Documents, Powell) Favorable, Yeas 11 Nays 0. The packet also lists amendments to SB 72 by barcode, a committee agenda request, appearance records from Stephen Cain and William Large, and a time-stamped meeting log ending with adjournment at 3:13:47 PM.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Cite this document
“Post Meeting Packet - Commerce and Tourism, The Florida Senate (March 2, 2021).”
Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2021-03-02-post-meeting-packet-4711-62a2c6f782/
, SHA-256 9cbba0d3338f07f4e4d02705b00e11972c7196c51faed14692b576579e13cefb.Full text
Selection From: 03/02/2021 - Commerce and Tourism (1:30 PM - 3:30 PM) 2021 Regular Session
Customized 03/03/2021 3:04 PM
Agenda Order
SB 72 by Brandes (CO-INTRODUCERS) Perry, Baxley, Hutson; (Similar to CS/H 00007) Civil Liability for
Tab 1
Damages Relating to COVID-19
951728 A S UNFAV CM, Powell btw L.108 - 109: 03/03 08:50 AM
321008 A S UNFAV CM, Pizzo Delete L.131 - 136: 03/03 08:50 AM
358018 A S UNFAV CM, Pizzo Delete L.141 - 157: 03/03 08:50 AM
466366 A S UNFAV CM, Pizzo Delete L.148 - 150: 03/03 08:50 AM
928904 A S UNFAV CM, Pizzo Delete L.152 - 154: 03/03 08:50 AM
475864 A S WD CM, Torres btw L.163 - 164: 03/03 08:50 AM
407288 A S UNFAV CM, Torres btw L.163 - 164: 03/03 08:50 AM
624688 A S UNFAV CM, Taddeo btw L.163 - 164: 03/03 08:50 AM
Tab 2 SB 430 by Rodriguez; (Similar to H 00991) Petroleum Fuel Measuring Devices
168096 A S RCS CM, Rodriguez Delete L.23 - 29: 03/03 08:50 AM
Tab 3 SB 848 by Powell; (Identical to H 00483) Electronic Legal Documents
Page 1 of 1
2021 Regular Session The Florida Senate
COMMITTEE MEETING EXPANDED AGENDA
COMMERCE AND TOURISM
Senator Hooper, Chair
Senator Wright, Vice Chair
MEETING DATE: Tuesday, March 2, 2021
TIME: 1:30—3:30 p.m.
PLACE: Toni Jennings Committee Room, 110 Senate Building
MEMBERS: Senator Hooper, Chair; Senator Wright, Vice Chair; Senators Burgess, Diaz, Garcia, Gruters,
Hutson, Pizzo, Powell, Taddeo, and Torres
BILL DESCRIPTION and
TAB BILL NO. and INTRODUCER SENATE COMMITTEE ACTIONS COMMITTEE ACTION
PUBLIC TESTIMONY WILL BE RECEIVED FROM ROOM A1 AT THE DONALD L.
TUCKER CIVIC CENTER, 505 WEST PENSACOLA STREET, TALLAHASSEE, FL 32301
1 SB 72 Civil Liability for Damages Relating to COVID-19; Favorable
Brandes Providing requirements for a civil action based on a Yeas 7 Nays 4
(Similar CS/H 7) COVID-19-related claim; providing that the plaintiff
has the burden of proof in such action; providing a
statute of limitations; providing severability; providing
retroactive applicability, etc.
JU 01/25/2021 Favorable
CM 02/15/2021 Temporarily Postponed
CM 03/02/2021 Favorable
RC
2 SB 430 Petroleum Fuel Measuring Devices; Preempting the Fav/CS
Rodriguez regulation of petroleum fuel measuring devices to the Yeas 11 Nays 0
(Similar H 991) state and the Department of Agriculture and
Consumer Services; prohibiting the department from
enforcing certain provisions for violations of rules
relating to petroleum fuel measuring devices;
exempting department petroleum fuel measuring
device rules from enforcement under specified
provisions, etc.
CM 03/02/2021 Fav/CS
TR
RC
3 SB 848 Electronic Legal Documents; Revising the definition of Favorable
Powell the term “online notarization”; clarifying that Yeas 11 Nays 0
(Identical H 483) supervising the witnessing of an electronic record by
an online notary public is a notarial act; revising the
statutory form for an affidavit for acceptance of and
reliance upon a power of attorney to reflect means of
notarization; revising the form for a petition of
summary relief for the sale or transfer of certain
property owned by an absentee to reflect means of
notarization, etc.
CM 03/02/2021 Favorable
JU
RC
S-036 (10/2008)
03022021.1535 Page 1 of 2
COMMITTEE MEETING EXPANDED AGENDA
Commerce and Tourism
Tuesday, March 2, 2021, 1:30—3:30 p.m.
BILL DESCRIPTION and
TAB BILL NO. and INTRODUCER SENATE COMMITTEE ACTIONS COMMITTEE ACTION
Other Related Meeting Documents
S-036 (10/2008)
03022021.1535 Page 2 of 2
The Florida Senate
Committee Agenda Request
To: Senator Ed Hooper, Chair
Committee on Commerce and Tourism
Subject: Committee Agenda Request
Date: February 2, 2021
I respectfully request that Senate Bill # 72, relating to Civil Liability for Damages Relating to
COVID-19, be placed on the:
committee agenda at your earliest possible convenience.
next committee agenda.
Senator Jeff Brandes
Florida Senate, District 24
File signed original with committee office S-020 (03/2004)
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
3/2/2021 APPEARANCE RECORD SB 72
Meeting Date Bill Number (if applicable)
951728
-|-Opjc Civil Liability for Damages Relating to Covid-19 Amendment Barcode (if applicable)
Name Stephen Cain
Job Title Attorney
Address Qne Southeast Third Avenue, Suite 3000 p one 305-358-6644
Street
Miami FL 33131 Email scain@stblaw.com
City State Zip
Speaking: For Against Information Waive Speaking: In Support Against
(The Chair will read this information into the record.)
Representing Florida Justice Association
Appearing at request of Chair: Yes No Lobbyist registered with Legislature:
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to li it their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
YOU MUST PRINT AND DELIVE THIS FORM TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
03.02.21 APPEARANCE RECORD 72
Bill Number (if applicable)
Meeting Date
321008
TopiG Civil Liability for Damages Relating to COVID-19 Amendment Barcode (if applicable)
Name William Large
Job Title President
Address 210 South Monroe Street Phone 850-222-0170
Street
Tallahassee FL 32301 Email Wi ia @fljustice.org
City State Zip
Speaking: For Against Information Waive Speaking: In Support |Against
(The Chair will read this information into the record.)
Representing Florida Justice Reform Institute
Appearing at request of Chair: Yes No Lobbyist registered with Legislature: Yes |No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
S-001 (10/14/14)
This form is part of the public record for this meeting.
YOU MUST PRINT A D DELIVER THIS FORM TO THE ASSIGNED TESTI ONY ROOM
The Florida Senate
3/2/2021 APPEARANCE RECORD SB 72
Bill Number (if applicable)
Meeting Date
321008
Topic Civil Liability for Damages Relating to Covid-19 Amendment Barcode (if applicable)
Name Stephen Cain
Job Title Attorney
Address One Southeast Third Avenue, Suite 3000 Phone 305-358-6644
Street
Miami FL 33131 Email scain@stblaw.com
City State zip
Speaking: For Against Information Waive Speaking: In Support |Against
(The Chair will read this information into the record.)
Representing Florida Justice Association
Yes o Lobbyist registered with Legislature: Yes No
Appearing at request of Chair:
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
S-001 (10/14/14)
This form is oart of the oublic record for this meeting.
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROO
The Florida Senate
03.02.21 APPEARANCE RECORD 72
Bill Number (if applicable)
Meeting Date
466366
Topic Civil Liability for Damages Relating to COVID-19 Amendment Barcode (if applicable)
Name William Large
Job Title President
Address 210 South Monroe Street Phone 850-222-0170
Street
Tallahassee FL 32301 Email William@fljustice.org
City State Zip
Speaking: |For Against Information Waive Speaking: In Support j Against
(The Chair will read this information into the record.)
Representing Florida Justice Reform Institute
Yrs No Lobbyist registered with Legislature: Yes No
Appearing at request of Chair:
Wh//e it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
S-001 (10/14/14)
Thist farm is oart of the oublic record for this meeting.
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROO
The Florida Senate
3/2/2021 APPEARANCE RECORD SB 72
Meeting Date Bill Number (if applicable)
466366
Topic Ch/il Liability for Damages Relating to Covid-19 Amendment Barcode (if applicable)
Name Stephen Cain
Job Title Attorney
Address One Southeast Third Avenue, Suite 3000 Phone 305-358-6644
Street
Miami FL 33131 Email scain@stblaw.com
City State Zip
Speaking: For Against Information Waive Speaking: In Support Against
(The Chair will read this information into the record.)
Representing Florida Justice Association
Appearing at request of Chair: Yes No Lobbyist registered with Legislature:
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
03.02.21 appearance record 72
Meeting Date Bill Number (if applicable)
928904
Topic CmI Liability for Damages Relating to COVID-19 Amendment Barcode (if applicable)
Name William Large
Job Title President
Address 210 South Monroe Street Phone 850-222-0170
Street
Tallahassee FL 32301 Email William@fljustice.org
City State Zip
Speaking: For Against Information Waive Speaking: In Support Against
(The Chair will read this information into the record.)
Representing Florida Justice Reform Institute
Appearing at request of Chair: Yes I INo Lobbyist registered with Legislature: Yes No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROO
The Florida Senate
3/2/2021 APPEARANCE RECORD SB 72
Meeting Date Bill Number (if applicable)
928904
Topic CmI Liability for Damages Relating to Covid-19 Amendment Barcode (if applicable)
Name Stephen Cain
Job Title Attorney
ddress One Southeast Third Avenue, Suite 3000 Phone 305-358-6644
Street
Miami 33131 Email scain@stblaw.com
City State Zip
Speaking: For Against Information Waive Speaking: In Support |Against
(The Chair will read this information into the record.)
Florida Justice Association
Appearing at request of Chair: Yes No Lobbyist registered with Legislature:
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROO
The Florida Senat
03.02.21
APPEARANCE RECORD 72
Meeting Date Bill Number (if applicable)
475864
Topic Civil Liability for Damages Relat ng to CQVID-19 Amendment Barcode (if applicable)
Name William Large
Job Title President
Address 21 South Monroe Street Phone 850-222-0170
Street
Tallahassee FL 32301 Email William@fljustice.org
City State Zip
Speaking: For 1I Against Information Waive Speaking: I In Sup ort Against
(The Chair will read this information into the record.)
Representing Florida Justice Reform Institute
Appearing at request of Chair: Yes l lNo Lobbyist registered with Legislature: fc lYes | o
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
YOU MUST PRINT A D DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
03.02.21 APPEARANCE RECORD 72
Meeting Date Bill Number (if applicable)
407288
Topic CM1 Liability for Damages Relating to COVID-19 Amendment Barcode (if applicable)
Nanlt William Large
Job Title President
Address 210 South Monroe Street Phone 850-222-0170
Street
Tallahassee FL 32301 Email VVilliam@fljustice.org
City State Zip
Speaking: For 1I Aga nst Information Waive Speaking: In Support Against
(The Chair will read this information into the record.)
Representing Florida Justice Reform Institute
Appearing at request of Chair: Yes I Inq Lobbyist registered with Legislature: Yes I No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
3/2/2021 APPEARANCE RECORD SB 72
Meeting Date
Bill Number (if applicable)
407288
Topic Civil Liability for Damages Reiating to Covid-19
Amendment Barcode (if applicable)
Na e Stephen Cain
Job Title Attorney
Address Qne Southeast Third Avenue, Suite 3000 Phone 305-358-6644
Street ~ ~
Miami FL 33131 Email scain@stblaw.com
city State zip
Speaking: For Against Information Wai e Speaking: |_| In Support Against
(The Chair will ead this information into the record.)
Representing Florida Justice Association
Appearing at request of Chair: Yes I Ino Lobbyist registered with Legislature: Yes l iNo
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
03.02.21
Meeting Date
APPEARANCE RECORD 72
Bill Number (if applicable)
624688
Topic C Liab lity for Damages Relating to COVID-19
Amendment Barcode (if applicable)
Na e William Large
Job Title President
Address 210 South Monroe Street Phone 850-222-0170
Street
Tallahassee FL 32301 Email_W l am@fljustice.org
City State Zip
Speaking: For Against Information Waive Speaking: In Support Against'
(The Chair will read this information into the record.)
Represent ng Florida Justice Reform Institute
Appearing at request of Chair: Yes [ ] No Lobbyist registered with Legislature: Yes No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
YOU MUST PRINT A D DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
3/2/2021 APPEARANCE RECORD SB 72
Meeting Date Bill Number (if applicable)
624688
Topic Civil Liability for Damages Relating to Covid-19 Amendment Barcode (if applicable)
Name Stephen Cain
Job Title Attorney
Address One Southeast Third Avenue, Suite 3000 Phone 305-358-6644
Street
Mia i FL 33131 Email scain@stblaw.com
State Zip
Speaking: I For Against Information Waive Speaking: In Support Against
(The Chair will read this information into the record.)
Representing Florida Justice Association
Appearing at request of Chair: Yes l* lNo Lobbyist registered ith Legislature: Yes l lNo
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this me ting. S-001 (10/14/14)
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
03.02.21 APPEARANCE RECORD 72
Meeting Date Bill Number (if applicable)
358018
Topic c v ' Liability for Damages Relating to COVID-19 Amendment Barcode (if applicable)
Na e Wi liam Large
Job Title President
Address 210 South Monroe Street Phone 850-222-0170
Street
Tallahassee FL 32301 Email VVilliam@fljustice.org
City State Zip
Speaking: For | | Against Information Waive Speaking: In Support Against
(The Chair will read this information into the record.)
Representing Flori a Justice eform Institute
Appearing at request of Chair: Yes No Lobbyist registered with Legislature: I I Yes No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public r cord for this meeting. S-001 (10/14/14)
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
3/2/2021 APPEARANCE RECORD SB 72
Meeting Date Bill Number (if applicable)
358018
Topic Civil Liability for Damages Relating to COVID-19 Amendment Barcode (if applicable)
Name Stephen Cain
Job Title Attorney
Address One Southeast Third Avenue, Suite 3000 Phone (305) 358-6644
Street
Miami FL 33131 Email scain@stfblaw.com
City State Zip
Speaking: For Against Information Waive Speaking: In Support |Against
(The Chair will read this information into the record.)
Representing Florida Justice Association
Appearing at request of Chair: Yes No Lobbyist registered with Legislature: Yes I Ino
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be hea d at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROOM Reset Form
The Florida Senate
March 2, 2021 72
APPEARANCE RECORD
Meeting Date Bill Number (if applicable)
Topic Amendment Barcode (if applicable)
Name " "'m Nungesser
Job Title egislative Director
Address 110 East Jefferson Street Phone 850-445-5367
Street
Tallahassee FL 32301 Email Tim.nungesser@nfib.org
City State Zip
Speaking: For Against Information Waive Speaking: In Support Against
(The Chair will read this information into the record.)
Representing
Appearing at request of Chair: Yes No Lobbyist registered with Legislature: Yes No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
March 2, 2021
APPEARANCE RECORD 72
Meeting Date Bill Number (if applicable)
Topjc Civil Liability/COVID-19
Amendment Barcode (if applicable)
Name Samantha Padgett
Job Title General Counsel
Address 230 South Adams Street Phone 224-2250
Street
Tallahassee
_
FL 32311 Email spadgett@frla.org
State Zip
Speaking: Against Information Waive Speaking:
In Support Against
(The Chair will read this information into the record.)
Representing Florida Restaurant & Lodgin Association
Appearing at request of Chair: Lobbyist registered with Legislature: • lYes |no
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is nart of the oublic r cord for this meotinn.
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROOM
The Florida S nate
3/2/2021 APPEARANCE RECORD 72
Meeting Date Bill Number (if applicable)
Topic Civil Liability for Damages Relating to COVID-19 Amendment Barcode (if applicable)
Name Farmer
Job Title Director of Government Affairs
Address 227 S Adams Street Phone 352-359-6835
Street
Tallahassee
_ FL 32301 Email jake@frf.°rg
State
Speaking: [ For Against Information Waive Speaking: In Support Against
(The Chair will read this information into the record.)
Representing Florida Retail Federation
Appearing at request of Chair: Yes No Lobbyist registered with Legislature: Yes No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of t e public record for this meeting. S-001 (10/14/14)
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
03.02.21 APPEARANCE RECORD 72
Meeting Date Bill Number (if applicable)
Topic CmI Liability for Damages Relating to COVID-19 Amendment Barcode (if applicable)
Na e William Large
Job Title President
Address 210 South Monroe Street Phone 850-222-0170
Street
Tallahassee FL 32301 Email William@fljustice.org
City State Zip
Speaking: Against Information Waive Spea ing: In Support [Against
(The Chair will read this information into the record.)
Representing F orida Justice Reform Institute
Appearing at request of Chair: Yes I Ino Lobbyist registered with Legislature: Yes No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form Is part of the public record for this meeting. S-001 (10/14/14)
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
March 2, 2021
Meeting Date
APPEARANCE RECORD SB 72
Bill Number (if applicable)
Topic Civil Liability for Damages Relating to COVID-19
Amendment Barcode (if applicable)
Name Stephen Cain
Job Title Attorney
Address One Southeast Third Avenue, Suite 3000 Phone 305-358-6644
Street
Miami FL 33131 Email scain@stfblaw.com
city State Zip
Speaking: For Information Waive Speaking: |_J In Support |/w
Against
(The Chair will read this information into the record.)
Representing Florida Justice Association
Appearing at request of Chair: Yes No Lobbyist registered with Legislature: Yes l* l o
IWe it is a Senate tradition to encourage public testimony, time may not permit al! persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as pos ible can be heard.
This form is part of the public record for this me ting. S-001 (10/14/14
YOU MUST PRINT AND DELIVER THIS FOR TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
3/2/21 APPEARANCE RECORD 72
Meeting Date Bill Number (if applicable)
Topic COVID-19 Liability Protections Amendment Barcode (if applicable)
Name Carolyn Johnson
Job Title Senoir Policy Director
Address 36 S Bronough St Phone 850-521-1200
Street
Tallahassee FL 32301 Email cjohnson@flchamber.com
City State Zip
Speaking: For Against Information Waive Speaking: In Support [Against
(The Chair will read this information into the record.)
Representing Florida Chamber of Commerce
Appearing at request of Chair: Yes o Lobbyist registered with Legislature: No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form 1 part of the public record for this meeting. S-001 (10/14/14)
YOU MUST PRINT A D DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROO
The Florida Senate
3-2-21
Meeting Date
APPEARANCE RECORD 72
Bill Number (if applicable)
Topic Covid Liability Immunity
Amendment Barcode (if applicable)
Name Susan McGrath
Job Title Executive Director
Address 740 1st St North #236 Phone 727- 327-2400
Street
St Petersburg FL 33701 Email Susan@fcan.org
City State Zip
Speaking: Information Waive Speaking:
In Support||I/lAgainst
(The Chair will read this information into the record.)
Representing Florida Consumer Action Network
Appearing at request of Chair: Yes | No Lobbyist registered with Legislature: Yes No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
3-2-2021
Meeting Date
APPEARANCE RECORD 72
Bill Number (if applicable)
Topic Civil Lia ility for Damages Relating to COVID-19
Amendment Barcode (if applicable)
Name Spencer Pylant
Job Title Vice President of Government Affairs
Address 1 Biscayne Blvd., Ballroom Level Phone 305-577-5421
Street
Miami FL 33132 Email sPylant@miamichamber.com
'zip '
City State
Speaking: For Against Information Waive Speaking: I I In Support Against
(The Chair will read this information into the record.)
Representing reater Mia Cha ber of Commerce
Appearing at request of Chair: Yes I INo Lobbyist registered with Legislature: lYes No
While it is a Senate tradition to encourage public testimony, time may n t permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
The Florida Senate
APPEARANCE RECORD
(Deliver BOTH copies of this form to the Senator or Senate Professional Staff conducting t e meeting)
Bill Number (if applicable)
Topic _ Amendment Barcode (if applicable)
Name
Jo Title
Address Phone
Street
Email
City State Zip
Speaking: | | For Against | | Information Waive Speaking: O In Support | | Against
(The Chair will read this information into the record.)
Representing A - CTO
Appearing at request of Chair: Yes No Lobbyist registered with Legislature: No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to spe k to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
The Florida Senate
APPEARANCE RECORD
(Deliver BOTH copies of this form to the Senator or Senate Professional Staff conducting the meeting)
72
Bill Number (if applicable)
c lAM Amendment Barcode (if applicable)
Name "Jl > [H t
Job Title
Address Phone
Street
Email
City State Zip
J Against | | Information Waive Speaking: |~~| In Support | | Against
(The Chair will read this information into the record.)
Representing
Appearing at request of Chair: Yes No Lobbyist registered with Legislature:
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
The Florida Senate
APPEARANCE RECORD
Meeting Date
(Deliver BOTH copies of this form to the Senator or Senate Professional Staff conducting the eeting)
7
Bill Number (if applicable)
Topic
Name
Job Title
Address (j \ S
State ziP
Speaking: For | t/f Against Waive Speaking: Qin Support F Against
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Representing l-
Appearing at request of Chair: Yes Lobbyist registered with Legislature: No
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The Florida Senate
3/2/21 APPEARANCE RECORD 72
Meeting Date Bill Number (if applicable)
Topic Shielding COVID Liability
Amendment Barcode (if applicable)
Name Kara Gross
Job Title Legislative Director & Senior Policy Counsel
Address 4343 West Flagler Dr. Phone 786-363-4436
Street
Miami FL 33134 E ail kgross@aclufl.org
City State Zip
Speaking: For Against Information Waive Speaking: In Support [ jAgainst
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Representing ACLU of Florida
Appearing at request of Chair: Yes No Lobbyist registered with Legislature: jYes |No
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The Florida Senate
2 Mar 21 APPEARANCE RECORD 72
Meeting Date Bill Number (if applicable)
Topic Cov d Civil Liability Protection Amendment Barcode (if applicable)
Name James Mosteller
Job Title Advocacy Associate
Address 215 S. Monroe Street, STE. 420 Phone 850-727-3712
Street
Tallahassee FL 32309 Email JamesM@afloridapromise.org
City State Z/p
Speaking: For Against Information Waive Spea ing: In Support Against
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Representing Foundation for Florida s Future
Appearing at request of Chair: Yes l l o Lobbyist registered with Legislature: Yes I No
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The Florida Senate
APPEARANCE RECORD
/ I 2]
Meeting Date
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Bill Number (if applicable)
Topic Amendment Barcode (if applicable)
Name hOOre
Job Title
Address P 0 • Go O LO Phone
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5 - -HC$fcuv< 3?3I Email
City state
r- *
Speaking: CZlFor | ] Against | | Information Waive Speaking: | j In Support | | Against
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Representing
Appearing at request of Chair: |~1 Yes lo Lobbyist registered with Legislature: l nes No
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The Florida Senate
appearance record
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Z 5 7
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Street
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Speaking: Por I I Against | | Informat on Waive Speaking: Jxl In Support | | Against
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Representing
Appearing at request of Chair: Yes FZ?] No Lobbyist registered with Legislature: H Yes No
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The Florida Senate
3/1/2021 APPEARANCE RECORD 72
Meeting Date Bill Number (if applicable)
Topic Civi! L abil'ty f°r Darnages Relating to COVID-19 Amendment Barcode (if applicable)
Name ParTie!a Burch Fort
Job Title
Address 104 South Monroe Street Phone 850-425-1344
Street
Tallahassee FL 32301 Email TcgLobbyOaol
City State Zip
Speaking: For Against Informat on Waive Speaking: In Support I Against
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Representing NAACP Florida State Conference
Appearing at request of Chair: Yes dNo Lobbyist registered with Legislature: Yes o
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The Florida Senate
3/2/2021 APPEARANCE RECORD SB 72
Meeting Date Bill Number (if applicable)
Topic CMI Liability for Damages Relating to COVID-19 Amendment Barcode (if applicable)
Name Danielle Scoggins
Job Title ic® President of Public Policy
ress 200 S. Monroe St. Phone 8502241400
Street
Tallahassee FL 32301 Email danielles@floridarealtors.org
City State Zip
Speaking: |For Against Information \Na\ve Speaking: In Support Against
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Representing he Florida Realtors Association
Appearing at request of Chair: |Yes I No Lobbyist registered with Legislature: jYes No
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aS /
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Topic Z
Amendment Barcode (if applicable)
Name /7
Job Title
Phone_ r 2 d
Street . / ,
State
Speaking: C F01 I I Against | | Information Waive Speaking: PpIi support | | Against
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Representing
Appearing at request of Chair: Yes I Nc ' Lobbyist registered with Legislature: Yes No
m innSTh i d,ti°n Public i timony, time may not pe mit all persons wishing to speak to be heard at this
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The Florida S nate
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Topic Civil Liability for Damages Relating to COVID-19 Amendment Barcode (if applicable)
Name Brewster Bevis
Job Title Senior Vice President
Address 516 N Adams St Phone 221-7173
Street
Tallahassee FL 32312 Email bbevis@aif.com
City State Z/p
Speaking: 6 or Against Information Waive Speaking: IVI In Support Against
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Representing Associated Industries of Florida
Appearing at request of Chair: Yes l l No Lobbyist registered with Legislature: • Yes |No
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The Florida Senate
3/2/2021
Meeting Date
APPEARANCE RECORD 72
Bill Number (if applicable)
Topic Civil Liability for Damages Relating to COVID-19
Amendment Barcode (if applicable)
Name David Cruz
Job T tle Legislative Counsel
Address P.O. Box 1757 Phone 850-701-3676
Street
Tallahassee FL 32301 Email dcruz@flcities.com
City State Zip
Speaking: For Against Information Waive Speaking:
_ l l ..
In Support
: lAgainst
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Representing Florida League of Cities, Inc.
Appearing at request of Chair: Yes l l No Lobbyist registered with Legislature: JlJYes I o
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S-001 (10/14/14)
SB0072_BAR 2021-01-12
Policy Implications 1
The Florida Bar is not doing an analysis for SB72. The Bar does not have an official legislative
position related to the proposed legislation.
Fiscal Impact
The Florida Bar has not identified any fiscal impact with the proposed legislation.
1
The Florida Bar Board of Governor’s has Standing Board Policies to establish the Board’s powers to maintain and
supervise the Bar’s legislative program. The Bar will not advocate a legislative or political issue unless the Board
determines that the matter is related to the Bar’s purposes as set forth in the Rules Regulating The Florida Bar and is
otherwise consistent with applicable court decisions. These policies govern the limits and procedures regarding
legislative or political involvement by the Bar and Bar groups funded by mandatory and voluntary dues.
“Mandatory Bar Group” means The Florida Bar and groups within The Florida Bar funded by mandatory member
dues in the current or immediate prior bar fiscal years. The Board or the Executive Committee may approve a
legislative or political issue if it meets one of the following criteria:
1) Questions concerning the regulation and discipline of attorneys;
2) Matters relating to the improvement of the functioning of the courts, judicial efficacy, and efficiency;
3) Increasing the availability of legal services to society;
4) Regulation of attorneys’ client trust accounts; or
5) The education, ethics, competence, integrity, and regulations as a body, of the legal profession.
“Voluntary Bar Group” means a group within The Florida Bar funded by voluntary member dues in the current and
immediate prior bar fiscal years. The board will permit a voluntary bar group to take a position on a legislative or
political issue only when the issue:
1) is within the group’s subject matter jurisdiction as described in the group’s section’s bylaws;
2) either is beyond the scope of the bar’s permissible legislative or political activity, or is within the bar’s
permissible scope of legislative or political activity and the proposed section position is consistent with an official
bar position on that issue; and
3) does not have the potential for deep philosophical or emotional division among a substantial segment of the bar’s
membership.
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: SB 72
INTRODUCER: Senator Brandes and others
SUBJECT: Civil Liability for Damages Relating to COVID-19
DATE: February 12, 2021 REVISED: 3/1/2021
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Davis Cibula JU Favorable
2. Harmsen McKay CM Favorable
3. RC
I. Summary:
SB 72 creates civil liability protections for individuals, businesses, governmental entities, and
other organizations against COIVD-19-related claims. The bill, however, excludes healthcare
providers from the liability protections created in the bill.
The bill establishes preliminary requirements that a plaintiff must complete before the case is
allowed to proceed. A court must determine whether:
The complaint was pled with particularity;
A physician’s affidavit was simultaneously submitted stating that, within a reasonable degree
of medical certainty, the physician believed that the defendant caused, through acts or
omissions, the plaintiff’s damages, injury, or death. If the plaintiff did not meet these
requirements, the court must dismiss the action, but the plaintiff is not barred from correcting
the deficiencies and refiling the claim.
The defendant made a good faith effort to substantially comply with authoritative or
controlling health standards when the action accrued. If the court determines that the
defendant made the requisite good faith effort, the defendant is immune from civil liability.
If, in contrast, the court determines that the defendant did not make the requisite good faith
effort, the action may proceed.
If a plaintiff meets these preliminary requirements, then he or she bears the burden of proving
that the defendant did not make the good faith effort. Additionally, the plaintiff must meet the
heightened standard of proving that the defendant’s acts or omissions were grossly negligent by
the clear and convincing evidence standard.
A COVID-19-related lawsuit must be brought within 1 year after a cause of action accrues unless
the cause of action occurred before the effective date of the bill. However, if a cause accrues
before the effective date of the bill, the plaintiff has 1 year from the effective date of the act to
bring the claim.
BILL: SB 72 Page 2
The bill takes effect upon becoming a law and applies retroactively. However, the bill does not
apply in a civil action against a particular defendant if the suit is filed before the bill’s effective
date.
II. Present Situation:
Background
The COVID-19 pandemic has affected the state of Florida in ways that were unimaginable one
year ago. The toll on individuals, businesses, and the economy has been catastrophic. According
to the Department of Health, 1,892,301 positive COVID-19 cases have been diagnosed in the
state, 78,744 residents have been hospitalized, and 30,478 people have died of the virus.1
As the pandemic forced businesses to close, millions of Americans lost their jobs. The U.S.
economy contracted at the greatest rate since World War II. In Florida, general revenue
collections for Fiscal Year 2019-20 were down nearly $1.9 billion from the forecast projections
made in January 2020. The vast majority of the loss, 84.7 percent, came from a loss of sales tax
revenues, the largest component and category most affected by the pandemic. The Revenue
Estimating Conference adopted a forecast for sales tax revenues in December 2020, as compared
to the January 2020 forecast, that anticipates a loss to General Revenue of approximately $2
billion in Fiscal Year 2020-21 and $1 billion in Fiscal Year 2021-22. The sales tax losses are
attributable to a substantial loss in the tourism and recreation areas, often driven by out-of-state
tourism, and also by reduced sales to local residents at restaurants and venues, including leisure
activities impacted by the pandemic.2
Governor DeSantis issued Executive Order No. 20-52 on March 9, 2020, declaring a state of
emergency and issuing guidelines to halt, mitigate, or reduce the spread of the outbreak. The
order has been extended 5 times,3 most recently by Executive Order No. 20-316, issued on
December 29, 2020.
During the pandemic, government-issued health standards and guidance detailing how to best
combat the virus have sometimes been in conflict. They sometimes changed rapidly, making
appropriate responses difficult. Businesses and individuals often scurried to provide appropriate
responses based upon the information they received at any given time.
As businesses and entities struggle to re-open or keep their doors open, a growing concern has
been expressed that unfounded or opportunistic lawsuits for COVID-19-related claims could
threaten their financial survival. The concern is that time, attention, and financial resources
diverted to respond to the lawsuits could be the difference between individuals and entities
1
Florida Department of Health, Division of Disease Control and Health Protection, Florida’s COVID-19 Data and
Surveillance Dashboard, https://experience.arcgis.com/experience/96dd742462124fa0b38ddedb9b25e429 (last visited Feb.
26, 2021).
2
Executive Summary, Revenue Estimating Conference for the General Revenue Fund & Financial Outlook Statement,
August 14, 2020, and subsequently updated. http://edr.state.fl.us/Content/conferences/generalrevenue/archives/200814gr.pdf
(last visited Mar. 1, 2021).
3
A state of emergency declared under the State Emergency Management Act may not last for more than 60 days unless it is
renewed by the Governor. Section 252.36(2), F.S.
BILL: SB 72 Page 3
succeeding or failing as they attempt to emerge from the pandemic. One protection that has been
offered is the provision of heightened legal immunity from COVID-19 claims to fend off
meritless lawsuits and preserve scant resources.
COVID-Related Lawsuits
According to the Congressional Research Service,4 a growing number of plaintiffs have filed tort
lawsuits in hopes of being compensated for personal injuries that resulted from alleged exposure
to COVID-19 or from the failure of a defendant to properly treat the virus. Some examples of the
lawsuits include:
The relatives of deceased family members, who allegedly contracted the virus in the
workplace, have filed cases stating that the employers caused the decedents’ deaths because
they failed to implement workplace safety measures.
Many cruise ship passengers have filed lawsuits against cruise lines alleging that the cruise
line exposed them to the virus or caused them to contract the virus while on a cruise.
Plaintiffs have sued assisted living facilities and nursing homes. They allege that their
relatives died because these entities negligently exposed their relatives to the virus or failed
to diagnose them in a timely or appropriate manner, and then treat the symptoms.
Businesses that folded have sued their insurance companies challenging the denial of their
coverage for claims of business interruptions.
Consumers have filed suits seeking financial reimbursement for travel, events, and season
passes at recreational venues which were cancelled or closed because of the pandemic.
Employees have sued their employers alleging that the employer unlawfully terminated them
because they contracted the virus.
Stockholders have sued public companies alleging that the companies violated federal
securities laws when they did not accurately state the pandemic’s toll on the companies’
finances as required in mandatory disclosure statements.5
The Congressional Research Service states that proponents of COVID-19 liability protections
assert that litigation and the cost of legal fees will cripple businesses, individuals, schools, and
non-profit organizations and deter the organizations from reopening. Proponents are concerned
that these entities will shape their business decision-making to avoid liability. This unwillingness
to continue or reopen businesses will delay the national economic recovery. Others believe that
4
The Congressional Research Service works solely for the U.S. Congress and provides policy and legal analysis to both
members and committees of the House and Senate. It is a legislative branch agency housed within the Library of Congress.
https://www.loc.gov/crsinfo/.
5
Congressional Research Service, COVID-19 Liability: Tort, Workplace Safety, and Securities Law (Sept. 24, 2020),
https://crsreports.congress.gov/product/pdf/R/R46540 (last visited Mar. 1, 2021).
BILL: SB 72 Page 4
many COVID-19-realted claims “are generally meritless, and therefore serve primarily to benefit
plaintiffs’ lawyers rather than vindicate injured person’s legal rights.”6
In contrast, opponents of liability protections disagree. They maintain that organizations would
encounter only minimal legal exposure for COVID-19 liability. The opponents also contend that
providing a shield for defendants would harm the public by permitting defendants to commit
negligent acts with legal protections. It would also remove any incentives for businesses to take
precautions against the spread of the virus.7
Florida Lawsuits
It is difficult to determine how many COVID-19-related lawsuits have been filed in the state.
Staff contacted the Office of the State Courts Administrator to ask if it could determine how
many claims have been filed in the state courts. The office did not have that data available. One
database estimates that 582 complaints relating to COVID-19 have been filed in Florida, but this
data does not delineate between those which are filed in state courts versus federal courts.8
Many of the claims that have been filed in the federal district courts of the state are suits against
cruise ship lines where passengers allege that they contracted the virus while on the cruise.
Legislative and Executive Responses of Other States
At least 17 states have enacted legislation to provide civil liability immunity to individuals and
entities from COVID-19-related claims.9 At least two additional states have issued executive
orders to provide liability limitations.10 These laws do not reflect separate healthcare liability
protections. To date, no similar federal legislation has been enacted, although S. 4317 was
introduced in the Senate on July 27, 2020, and referred to committee.11
In general terms, the legislation enacted by other states provides protections if a defendant acts in
good faith to substantially comply with the applicable COVID-19 standards. The immunity does
not apply if the defendant’s acts or omissions constitute gross negligence or willful or wanton
misconduct.
6
Id. at 2.
7
Id. at 3.
8
Hunton Andrews Kurth LLP, COVID-19 Complaint Tracker, https://www.huntonak.com/en/covid-19-tracker.html (last
visited Mar. 1, 2021).
9
The states are: Alabama, Georgia, Idaho, Iowa, Kansas, Louisiana, Michigan, Mississippi, Nevada, North Carolina, Ohio,
Oklahoma, Oregon, South Dakota, Tennessee, Utah, and Wyoming. Additional, and sometimes separate, legislation has been
enacted by 17 states that provides medical liability limitations for health care facilities and workers. The database was current
as of December 14, 2020. National Conference of State Legislatures, State Action on Coronavirus (COVID-19),
https://www.ncsl.org/research/health/state-action-on-coronavirus-covid-19.aspx#db (last visited Mar. 1, 2021).
10
Alabama Executive Order signed by Governor Kay Ivey on May 8, 2020, and Arkansas Executive Order 20-33 signed by
Governor Asa Hutchison on June 5, 2020.
11
Safe to Work Act, s. 4317 –116th Cong. (2020) https://www.congress.gov/bill/116th-congress/senate-bill/4317/actions (last
visited Mar. 1, 2021).
BILL: SB 72 Page 5
Torts: Negligence, Elements, and Standards
A tort is a civil legal action to recover damages for a loss, injury, or death due to the conduct of
another. Some have characterized a tort as a civil wrong, other than a claim for breach of
contract, in which a remedy is provided through damages.12 When a plaintiff files a tort claim, he
or she alleges that the defendant’s “negligence” caused the injury. Negligence is defined as the
failure to use reasonable care. It means the care that a reasonably careful person would use under
similar circumstances. According to the Florida Standard Jury Instructions, negligence means
“doing something that a reasonably careful person would not do” in a similar situation or “failing
to do something that a reasonably careful person would do” in a similar situation.13
When a plaintiff seeks to recover damages for a personal injury and alleges that the injury was
caused by the defendant’s negligence, the plaintiff bears the legal burden of proving that the
defendant’s alleged action was a breach of the duty that the defendant owed to the plaintiff.14
Negligence Pleadings
To establish a claim for relief and initiate a negligence lawsuit, a plaintiff must file a
“complaint.” The complaint must state a cause of action and contain: a short and plain statement
establishing the court’s jurisdiction, a short and plain statement of the facts showing why the
plaintiff is entitled to relief, and a demand for judgment for relief that the plaintiff deems himself
or herself entitled. The defendant responds with an “answer,” and provides in short and plain
terms the defenses to each claim asserted, admitting or denying the averments in response.15
Under the Florida Rules of Civil Procedure, there is a limited group of allegations that must be
pled with “particularity.” These allegations include allegations of fraud, mistake, and a denial of
performance or occurrence.16
Four Elements of a Negligence Claim
To establish liability, the plaintiff must prove four elements:
Duty – That the defendant owed a duty, or obligation, of care to the plaintiff;
Breach – That the defendant breached that duty by not conforming to the standard required;
Causation – That the breach of the duty was the legal cause of the plaintiff’s injury; and
Damages – That the plaintiff suffered actual harm or loss.
Burden or Standard of Proof
A “burden of proof” is the obligation a party bears to prove a material fact. The “standard of
proof” is the level or degree to which an issue must be proved.17 The plaintiff carries the burden
12
BLACK’S LAW DICTIONARY (11th ed. 2019).
13
Fla. Std. Jury Instr. Civil 401.3, Negligence.
14
Florida is a comparative negligence jurisdiction as provided in s. 768.81(2), F.S. In lay terms, if a plaintiff and defendant
are both at fault, a plaintiff may still recover damages, but those damages are reduced proportionately by the degree that the
plaintiff’s negligence caused the injury.
15
Fla. R. Civ. P. 1.110.
16
Fla. R. Civ. P. 1.120(b) and (c).
17
5 Fla. Prac. Civil Practice s. 16.1, (2020 ed.)
BILL: SB 72 Page 6
of proving, by a specific legal standard, that the defendant breached the duty that was owed to
the plaintiff that resulted in the injury. In civil cases, two standards of proof generally apply:
The “greater weight of the evidence” standard, which applies most often in civil cases, or
The “clear and convincing evidence” standard, which applies less often, and is a higher
standard of proof.18
However, both of these standards are lower than the “reasonable doubt” standard which is used
in criminal prosecutions.”19 Whether the greater weight standard or clear and convincing
standard applies is determined by case law or the statutes that govern the underlying substantive
issues.20
Greater Weight of the Evidence
The greater weight of the evidence standard of proof means “the more persuasive and convincing
force and effect of the entire evidence in the case.”21 Some people explain the “greater weight of
the evidence” concept to mean that, if each party’s evidence is placed on a balance scale, the side
that dips down, even by the smallest amount, has met the burden of proof by the greater weight
of the evidence.
Clear and Convincing
The clear and convincing standard, a higher standard of proof than a preponderance of the
evidence, requires that the evidence be credible and the facts which the witness testifies to must
be remembered distinctly. The witness’s testimony “must be precise and explicit and the
witnesses must be lacking in confusion as to the facts in issue.” The evidence must be so strong
that it guides the trier of fact to a firm conviction, to which there is no hesitation, that the
allegations are true.22
Standards of Care and Degrees of Negligence
Courts have developed general definitions for the degrees of negligence.
Slight Negligence
Slight negligence is generally defined to mean the failure to exercise a great amount of care. 23
Ordinary Negligence
Ordinary negligence, which is also referred to as simple negligence, is the standard of care
applied to the vast majority of negligence cases. It is characterized as the conduct that a
reasonable and prudent person would know could possibly cause injury to a person or property.24
18
Id.
19
Thomas D. Sawaya, Florida Personal Injury Law and Practice with Wrongful Death Actions, s. 24:4 (2020).
20
5 Fla. Prac. Civil Practice s. 16.1 (2020 ed.).
21
Fla. Std. Jury Instr. 401.3, Greater Weight of the Evidence.
22
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983) as discussed in the Sawaya treatise, supra at note 19.
23
Sawaya, supra at s. 2:12.
24
Id.
BILL: SB 72 Page 7
Gross Negligence
Gross negligence means the failure of a person to exercise slight care. Florida courts have
defined gross negligence as the type of conduct that a “reasonably prudent person knows will
probably and most likely result in injury to another” person.25
In order for a plaintiff to succeed on a claim involving gross negligence, he or she must prove:
Circumstances, which, when taken together, create a clear and present danger;
Awareness that the danger exists; and
A conscious, voluntary act or omission to act, that will likely result in an injury.26, 27
Access to Courts – Kluger v. White
The State Constitution provides in Article 1, s. 21, the “Access to courts” section,
The courts shall be open to every person for redress of any injury, and justice
shall be administered without sale, denial or delay.
Case law has demonstrated, however, that this provision is not absolute. In 1973, the Florida
Supreme Court issued an opinion, Kluger v. White,28 a case which construed the access to courts
provision. In broad terms, the case before the Court involved the abolition of a statute governing
a tort action for property damage in an automobile accident case. When the Legislature abolished
the remedy, it did not provide an alternative protection to the injured party.
The Court was confronted with the issue of whether the Legislature could abolish a right of
access to the courts. The Court determined that the Legislature may not abolish a pre-1968
common law right or a statutory cause of action unless the Legislature provides a reasonable
alternative to that action or unless an overpowering public necessity exists for abolishing the
right of action. The Court applies a three-part test to determine whether a statute violates the
access to courts provision:
Does the change abolish a preexisting right of access?
If so, whether a reasonable alternative exists to protect that preexisting right of access.
If no reasonable alternative exists, whether an overwhelming public necessity exists.29
Restrictions on the ability to bring a lawsuit have been upheld as constitutional, but the point at
which a restriction becomes an unconstitutional bar is not well defined.
Statute of Limitations
A statute of limitations establishes a time limit for a plaintiff to file an action, or the case will be
barred. An action for a negligence claim must be brought within 4 years after the cause of action
accrues.30
25
Id.
26
Id.
27
Culpable negligence is a fourth degree of negligence but is not discussed in this analysis.
28
Kluger v. White, 281 So. 2d 1 (Fla. 1973).
29
Eller v. Shova, 630 So. 2d 537 (Fla. 1993).
30
Section 95.11(3), F.S.
BILL: SB 72 Page 8
Statutes of limitations are created to encourage a plaintiff to initiate an action while witnesses
and evidence can be found. They also serve as a shield to protect a defendant from having to
defend against a claim that occurred so long ago that precise memories have grown hazy.31 A
statute of limitations begins to run when the cause of action accrues. A cause of action accrues
when the last element constituting the cause of action occurs.32 In a personal injury action based
on the negligent act of another, the last element occurs when the plaintiff is injured.33
Retroactive Application of a Statute
Under Florida law, statutes are presumed to operate prospectively, not retroactively. In other
words, statutes generally apply only to actions that occur on or after the effective date of the
legislation, not before the legislation becomes effective.
The Florida Supreme Court has noted that, under the rules of statutory construction, if statutes
are to operate retroactively, the Legislature must clearly express that intent for the statute to be
valid.34 When statutes that are expressly retroactive have been litigated and appealed, the courts
have been asked to determine whether the statute applies to cases that were pending at the time
the statute went into effect. The conclusion often turns on whether the statute is procedural or
substantive.
In a recent Florida Supreme Court case, the Court acknowledged that “[t]he distinction between
substantive and procedural law is neither simple nor certain.”35 The Court further acknowledged
that their previous pronouncements regarding the retroactivity of procedural laws have been less
than precise and have been unclear.36
Courts, however, have invalidated the retroactive application of a statute if the statute impairs
vested rights, creates new obligations, or imposes new penalties.37 Still, in other cases, the courts
have permitted statutes to be applied retroactively if they do not create new, or take away, vested
rights, but only operate to further a remedy or confirm rights that already exist.38
In a case challenging the application of an increase in the standard of proof from a
preponderance of the evidence to the clear and convincing evidence standard after the plaintiff
had filed a complaint, the court concluded that the statute could apply retroactively.39 The
Florida Supreme Court has noted that burden of proof requirements are procedural and may be
abrogated retroactively because litigants do not have a vested right in a method of procedure. 40
31
35 Fla. Jur 2d Limitations and Laches s. 1 (2020).
32
Section 95.031(1), F.S.
33
35 Fla. Jur 2d Limitations and Laches s. 65 (2020).
34
Walker & LaBerge, Inc., v. Halligan, 344 So. 2d 239 (Fla. 1977).
35
Love v. State, 286 So. 3d 177, 183 (Fla. 2019) quoting Caple v. Tuttle’s Design-Build, Inc., 753 So. 2d 49, 53 (Fa. 2000).
36
Love at 184.
37
R.A.M. of South Florida, Inc. v. WCI Communities, Inc., 869 So. 2d 1210 (Fla 2004).
38
Ziccardi v. Strother, 570 So. 2d 1319 (Fla. 1990).
39
Stein v.Miller Industries, Inc., 564 So. 2d 539 (Fla. 4th DCA 1990).
40
Walker & LaBerge, Inc. v. Halligan, 344 So. 2d 239, 243 (Fla. 1977).
BILL: SB 72 Page 9
The Court also permitted retroactive application of a statute that altered the plaintiff’s burden of
proof.41
III. Effect of Proposed Changes:
SB 72 provides heightened liability protections against COVID-19-related claims due to the
threat of unknown and potentially unbounded liability claims that may arise from the pandemic.
The protections are extended widely to all persons, businesses, or other entities except for
healthcare providers.
WHEREAS Clauses
According to the “Whereas Clauses” the State continues to operate under a declared state of
emergency, but one in which Floridians must be allowed to earn a living and support their
families, and one in which businesses are encouraged to operate safely and contribute to the
state’s success, well-being, and economic recovery. Because the Legislature recognizes the
significant risks that businesses, entities, and institutions accept to provide services to the public
during the pandemic, the Legislature is willing to extend protections to alleviate liability
concerns, while continuing to provide for the public health. The final clause notes that the
Legislature finds that the unprecedented nature of the COVID-19 pandemic, and the indefinite
legal environment that has followed, require swift and decisive action.
Legislative Findings
According to the legislative findings, the creation of heightened legal protections is necessary to
reduce the threat of unlimited liability and legal exposure for businesses, educational institutions,
governmental entities, and religious institutions as they seek to recover and contribute to the
well-being of the state. The legislative findings conclude that there are no alternative means to
meet this public necessity of providing legal protections caused by the sudden and unprecedented
nature of the COVID-19 pandemic. Therefore, the public interest, as a whole, is best served by
providing relief to these entities so that they may remain viable and contribute to the economic
recovery of the state.
Legislative findings have a unique place in case law. The Florida Supreme Court has determined
that they are to be given great weight. In the case of University of Miami v. Echarte, the Court
stated that “legislative determinations of public purpose and facts are presumed correct and
entitled to deference, unless clearly erroneous.”42 The Court reflected on the Kluger decision and
referred to its test. The Court also examined whether the Legislature expressly found that no
alternative or less onerous method existed, thereby establishing a necessary requirement.
41
Love, supra.
42
University of Miami v. Echarte, 618 So. 2d 189, 196 (Fla. 1993).
BILL: SB 72 Page 10
Pursuing a COVID-19 –Related Claim
A COVID-19-related Claim Defined and Who is Protected Under the Bill
A COVID-19-related claim is defined as a civil liability claim for damages, injury, or death that
arises from, or is related to, COVID-19.43 The bill provides protections for any civil liability
claim against a person,44 a natural person, business entity, including certain charitable
organizations and non-profits, a public or non-public educational institution, a governmental
entity, or a religious institution. Although the bill extensively defines what or who a healthcare
provider is, healthcare providers are excluded from the liability protections established by the
bill. The bill provides definitions for an educational institution, governmental entity, healthcare
provider, and a religious institution.
Preliminary Procedures for a Plaintiff
The bill requires two preliminary steps from a plaintiff. In each civil action for a COVID-19-
related claim, a plaintiff must:
Set forth the pleadings with particularity; and
Provide, at the same time that the complaint is filed, an affidavit signed by a physician,
stating that the plaintiff’s COVID-19-related claim for damages, injury, or death was caused
by the defendant’s acts or omissions. The physician who submits an affidavit must be
actively licensed in the state. Additionally, the physician must state that it is his or her belief,
within a reasonable degree of medical certainty, that the plaintiff’s COVID-related damages,
injury, or death occurred as a result of the defendant’s acts or omissions.
These preliminary procedures are similar to the pre-suit investigation requirements for a claimant
filing a medical malpractice claim. According to s. 766.104(1), F.S., the attorney filing the action
must make a reasonable investigation to determine that there are grounds for a good-faith belief
that negligence has occurred in the care or treatment of the claimant. The complaint or initial
pleading must contain a certificate of counsel stating that a reasonable investigation supported
the belief that there are grounds for an action against the defendant. Good faith may be
demonstrated if the claimant or counsel has received a written opinion from an expert that there
appears to be evidence of medical negligence. If the court determines that the certificate was not
made in good faith and that there is no justiciable issue presented against the health care
provider, the court must award attorney fees and taxable costs against the claimant’s counsel and
must submit the matter to The Florida Bar for disciplinary review against the attorney.
The Court’s Responsibilities
Before a trial may proceed, a court must determine whether:
43
A “COVID-19-related claim” is defined as” a civil liability claim against a person, including a natural person, a business
entity, an educational institution, a governmental entity, or a religious institution which arises from or is related to COVID-
19, otherwise known as the novel coronavirus. The term includes any such claim for damages, injury, or death. Any such
claim, no matter how denominated, is a COVID-19 related claim for purposes of this section. The term does not include a
claim against a healthcare provider, regardless of whether the healthcare provider meets one or more of the definitions in this
subsection.”
44
A “person” is broadly defined in the statutes to include individuals, children, firms, associations, joint adventures,
partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations.
Section 1.01(3), F.S.
BILL: SB 72 Page 11
The plaintiff submitted a complaint that was pled with particularity; and
The physician’s affidavit complied with the necessary requirements.
If the plaintiff did not meet these two requirements, the court must dismiss the case without
prejudice, meaning that the plaintiff is not prohibited from correcting deficiencies and refiling
the claim.
The court must also determine whether a defendant made a good faith effort to substantially
comply with authoritative or controlling government-issued health standards or guidance at the
time that the cause of action accrued. At this stage of the proceeding, the only admissible
evidence is limited to evidence pertinent to whether the defendant made a good faith effort to
comply with the health standards of guidance.
If the court decides that the defendant met the good faith compliance burden, the defendant is
immune from civil liability and the proceeding ends. However, if the court determines that the
defendant did not make a good faith effort, the plaintiff may proceed. In order to prevail, the
plaintiff must demonstrate that the defendant acted with at least gross negligence which is proven
by clear and convincing evidence. If these two burdens are not met, the defendant will not be
held liable for an act or omission pertaining to a COVID-19-related claim. The plaintiff bears the
burden of proving that the defendant did not make a good faith effort to substantially comply
with the authoritative or controlling government-issued health standards or guidance that were in
place at the time the action accrued.
The Plaintiff’s Burden to Prove Gross Negligence by the Clear and Convincing Standard
As discussed above in the “Present Situation,” gross negligence is defined as the type of conduct
that a reasonably prudent person knows will probably and most likely result in an injury to
another person. Under this standard, a plaintiff will need to prove that the defendant’s conduct
was grossly negligent, meaning that the likelihood of injury to another person was known by the
defendant to be imminent.
The plaintiff will need to demonstrate gross negligence by the “clear and convincing” standard of
evidence. This is applied less often in civil cases and is a higher standard of proof than the
greater weight of the evidence standard. To meet this standard, the plaintiff must provide
evidence that is credible, that is remembered distinctly by the witness, and must be so strong that
the trier of fact has a firm conviction, without hesitation, that the allegations are true.
Taken together, a plaintiff has high burdens to prevail in a COVID-19-related claim.
Statute of Limitations
SB 72 requires a plaintiff to bring a civil action within 1 year after the cause of action accrues.
Generally, a negligence action must be brought within 4 years after a cause of action accrues.
Therefore, this bill reduces the amount of time that a plaintiff has to bring an action. If, however,
the cause of action accrues before the effective date of the bill, which is the date it becomes law,
the plaintiff has one year from the effective date of the bill to bring a claim. While this could be a
reduction in the amount of time that a plaintiff has to bring a COVID-19-related claim, there is
BILL: SB 72 Page 12
precedent for this. Court opinions have held that a reduction in the statute of limitations is not
unconstitutional if the claimant is given a reasonable amount of time to file the action.45
Retroactive Application
This act takes effect upon becoming a law and applies retroactively. The bill applies retroactively
to actions filed after the effective date of the bill even if the action accrued before the effective
date. The bill, however, does not apply to a claim that is filed against a particularly named
defendant before the effective date of the bill.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
The Florida Bar submitted a brief response on the Agency Bill Analysis Request form
and stated that it had not identified any fiscal impact with the proposed legislation. The
response also stated that The Florida Bar would not be providing an analysis for the bill
and does not have an official legislative position for the proposed legislation.46
45
Foley v. Morris, 339 So. 2d 215 (Fla. 1976).
46
The Florida Bar, SB 72 Analysis, (Jan. 12, 2021) (on file with the Senate Committee on Commerce and Tourism).
BILL: SB 72 Page 13
C. Government Sector Impact:
The Office of the State Courts Administrator states that the bill’s impact on the judicial
workload cannot be quantified with data that is currently available. The analysis stated,
however, that the bill is not anticipated to create a significant increase to the judicial
workload. The analysis did note that the Rules of Civil Procedure and jury instructions
might need to be reviewed and revised to make certain that they accommodate the new
procedures created in the bill. The analysis also stated that the additional requirements for
plaintiffs could result in fewer COVID-19-related cases being filed, possibly reducing
revenues from civil filing fees, but there is not enough information to accurately
determine this.47
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill creates s. 768.38 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
47
Office of the State Courts Administrator, 2021 Judicial Impact Statement, SB 72 (Jan. 21, 2021)
http://abar.laspbs.state.fl.us/ABAR/Attachment.aspx?ID=31076 (last visited Mar. 1, 2021).
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 72
Ì951728AÎ951728
LEGISLATIVE ACTION
Senate . House
Comm: UNFAV .
03/03/2021 .
.
.
.
The Committee on Commerce and Tourism (Powell) recommended the
following:
1 Senate Amendment
2
3 Between lines 108 and 109
4 insert:
5 (e) “Government-issued health standards or guidance” means
6 any of the following which are related to COVID-19 or other
7 infectious diseases and which apply to the defendant’s
8 operations and provided standards or guidance for operating at
9 the time of the alleged act or omission:
10 1. A federal, state, or local law, regulation, or
Page 1 of 2
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Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 72
Ì951728AÎ951728
11 ordinance.
12 2. A written order or other document published by a
13 federal, state, or local government or regulatory body.
14 3. Standards or guidance issued by the Agency for Health
15 Care Administration, the Centers for Disease Control and
16 Prevention, the National Institutes of Health, the United States
17 Food and Drug Administration, or the Centers for Medicare and
18 Medicaid Services.
Page 2 of 2
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Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 72
Ì321008vÎ321008
LEGISLATIVE ACTION
Senate . House
Comm: UNFAV .
03/03/2021 .
.
.
.
The Committee on Commerce and Tourism (Pizzo) recommended the
following:
1 Senate Amendment
2
3 Delete lines 131 - 136
4 and insert:
5 (b) The plaintiff must present affidavit testimony from a
6 medical expert, as defined in s. 766.202, which attests to the
7 expert’s belief, within a reasonable degree of medical
8 probability, that the person whose injury or death gave rise to
9 the action was infected with COVID-19 at the time that the cause
10 of action accrued and that the plaintiff’s infection by COVID-19
Page 1 of 2
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Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 72
Ì321008vÎ321008
11 resulted in injury, damages, or death.
Page 2 of 2
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Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 72
Ì358018/Î358018
LEGISLATIVE ACTION
Senate . House
Comm: UNFAV .
03/03/2021 .
.
.
.
The Committee on Commerce and Tourism (Pizzo) recommended the
following:
1 Senate Amendment
2
3 Delete lines 141 - 157
4 and insert:
5 2. The defendant is immune from civil liability. The
6 defendant is immune from civil liability if the defendant
7 complied with all applicable executive orders issued by the
8 Governor in association with the declared state of emergency for
9 COVID-19 and any guidelines from the Centers for Disease Control
10 and Prevention applicable at the time the cause of action
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Bill No. SB 72
Ì358018/Î358018
11 accrued. The defendant may plead immunity at any stage of the
12 proceeding.
13 a. At a summary judgment hearing on the issue of immunity,
14 evidence is limited to evidence tending to demonstrate whether
15 the defendant complied with all applicable executive orders
16 issued by the Governor in association with the declared state of
17 emergency for COVID-19 and any guidelines from the Centers for
18 Disease Control and Prevention applicable at the time the cause
19 of action accrued.
20 b. If the court determines at a summary judgment hearing
21 that the defendant complied with the executive orders and
22 guidelines, the defendant is immune from civil liability for
23 ordinary negligence.
24 c. If the court determines at a summary judgment hearing
25 that the defendant did not comply with the executive orders and
26 guidelines, the plaintiff may proceed with the action. However,
27 absent at least gross negligence proven by clear and convincing
28 evidence, the defendant is not civilly liable for any act or
29 omission relating to a COVID-19-related claim.
30 (d) The burden of proof is upon the plaintiff to
31 demonstrate that the defendant did not comply with the executive
32 orders and guidelines under subparagraph (c)2.
Page 2 of 2
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Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 72
Ì466366EÎ466366
LEGISLATIVE ACTION
Senate . House
Comm: UNFAV .
03/03/2021 .
.
.
.
The Committee on Commerce and Tourism (Pizzo) recommended the
following:
1 Senate Amendment
2
3 Delete lines 148 - 150
4 and insert:
5 b. If the trier of fact determines that the defendant made
6 a good faith effort, the defendant is immune from liability.
7 c. If the trier of fact determines that the defendant did
8 not make
Page 1 of 1
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Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 72
Ì9289046Î928904
LEGISLATIVE ACTION
Senate . House
Comm: UNFAV .
03/03/2021 .
.
.
.
The Committee on Commerce and Tourism (Pizzo) recommended the
following:
1 Senate Amendment
2
3 Delete lines 152 - 154
4 and insert:
5 action. The defendant is not liable for any act or omission
6 relating to a COVID-19-related claim unless the plaintiff can
7 demonstrate by the greater weight of the evidence that the
8 injury was caused by the negligent acts or omissions of the
9 defendant.
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Bill No. SB 72
Ì475864LÎ475864
LEGISLATIVE ACTION
Senate . House
Comm: WD .
03/03/2021 .
.
.
.
The Committee on Commerce and Tourism (Torres) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Between lines 163 and 164
4 insert:
5 (5)(a) For the purposes of benefits provided under chapters
6 112 and 440 and any other benefits provided by law to
7 individuals suffering injury or illness through the course and
8 scope of employment, the following individuals shall be presumed
9 to have contracted COVID-19 in the course and scope of his or
10 her employment:
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Bill No. SB 72
Ì475864LÎ475864
11 1. A person licensed under chapter 458, chapter 459,
12 chapter 461, chapter 463, chapter 464, chapter 465, chapter 466,
13 or chapter 483;
14 2. An employee of a:
15 a. Facility licensed, certified, or approved by any state
16 agency and for which chapter 395, chapter 400, chapter 429, or
17 chapter 766 apply;
18 b. Federally qualified health center as defined in 42
19 U.S.C. s. 1396d(l)(2)(B); or
20 c. Sole proprietorship, group practice, partnership, or
21 corporation that provides health care services by physicians
22 covered by s. 627.419, that is directly supervised by one or
23 more of such physicians, and that is wholly owned by one or more
24 of those physicians or by a physician and the spouse, parent,
25 child, or sibling of that physician;
26 3. An emergency medical technician as defined in s.
27 401.23(11); or
28 4. A paramedic as defined in 401.23(17).
29 (b) The presumption in paragraph (a) may be rebutted if the
30 defendant proves by clear and convincing evidence that the
31 individual’s infection did not arise out of the course and scope
32 of his or her employment.
33
34 ================= T I T L E A M E N D M E N T ================
35 And the title is amended as follows:
36 Delete line 8
37 and insert:
38 providing a statute of limitations; providing that
39 certain individuals are presumed to have contracted
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Bill No. SB 72
Ì475864LÎ475864
40 COVID-19 in the course and scope of their employment;
41 specifying how a defendant may rebut such presumption;
42 providing
Page 3 of 3
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Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 72
Ì407288NÎ407288
LEGISLATIVE ACTION
Senate . House
Comm: UNFAV .
03/03/2021 .
.
.
.
The Committee on Commerce and Tourism (Torres) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Between lines 163 and 164
4 insert:
5 (5) Any business that is insured under an insurance policy
6 providing coverage for premises liability shall receive a rebate
7 of any insurance premiums paid or accrued from an insurance
8 carrier or insurance provider for any period where the business
9 was unable to use the business premises due to authoritative or
10 controlling government-issued health standards or guidance.
Page 1 of 2
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Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 72
Ì407288NÎ407288
11
12 ================= T I T L E A M E N D M E N T ================
13 And the title is amended as follows:
14 Delete line 8
15 and insert:
16 providing a statute of limitations; requiring that
17 certain businesses receive rebates from insurance
18 carriers or providers for any period where the
19 business was unable to use the business premises due
20 to certain government-issued standards or guidance;
21 providing
Page 2 of 2
2/12/2021 1:57:49 PM 577-02089-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 72
Ì624688[Î624688
LEGISLATIVE ACTION
Senate . House
Comm: UNFAV .
03/03/2021 .
.
.
.
The Committee on Commerce and Tourism (Taddeo) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Between lines 163 and 164
4 insert:
5 (5) For any cause of action accruing on or after the
6 effective date of this section, to be eligible for liability
7 protections provided herein, the defendant must prove by clear
8 and convincing evidence that, before the cause of action
9 accrued, it posted a notice in the form of a sign prominently
10 displayed at the business entrance in a clear and conspicuous
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Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 72
Ì624688[Î624688
11 manner which stated the following:
12
13 THIS NOTICE IS PROVIDED PURSUANT TO SECTION 768.38,
14 FLORIDA STATUTES. THIS ESTABLISHMENT IS NOT LIABLE FOR
15 TRANSMISSION OF OR EXPOSURE TO COVID-19.
16
17 ================= T I T L E A M E N D M E N T ================
18 And the title is amended as follows:
19 Delete line 8
20 and insert:
21 providing a statute of limitations; requiring a
22 business to prove that, before the cause of action
23 accrued, it posted a specified sign at the business
24 entrance as a condition of eligibility for liability
25 protection under the act; providing
Page 2 of 2
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Florida Senate - 2021 SB 72 Florida Senate - 2021 SB 72
By Senator Brandes
24-00824B-21 202172__ 24-00824B-21 202172__
1 A bill to be entitled 30 WHEREAS, Floridians must be allowed to earn a living and
2 An act relating to civil liability for damages 31 support their families without unreasonable government
3 relating to COVID-19; creating s. 768.38, F.S.; 32 intrusion, and
4 providing legislative findings and intent; defining 33 WHEREAS, the Governor’s responsible reopening strategy
5 terms; providing requirements for a civil action based 34 allowed businesses to continue to safely operate, bolstering
6 on a COVID-19-related claim; providing that the 35 consumer confidence, while also enforcing reasonable
7 plaintiff has the burden of proof in such action; 36 restrictions, and
8 providing a statute of limitations; providing 37 WHEREAS, the Legislature recognizes that certain
9 severability; providing retroactive applicability; 38 businesses, entities, and institutions operating within the
10 providing an effective date. 39 state are essential to the state’s continuing success and well-
11 40 being, and
12 WHEREAS, on March 9, 2020, Governor Ron DeSantis issued 41 WHEREAS, the Legislature recognizes that many businesses,
13 Executive Order Number 20-52 declaring a state of emergency for 42 entities, and institutions accept significant risk in order to
14 the State of Florida due to the COVID-19 pandemic, and 43 provide their services to the public, and
15 WHEREAS, in light of the ongoing nature of the COVID-19 44 WHEREAS, the Legislature further recognizes that the threat
16 pandemic, the Governor has repeatedly extended the state of 45 of frivolous and potentially limitless civil liability,
17 emergency, including most recently on December 29, 2020, in 46 especially in the wake of a pandemic, causes businesses,
18 Executive Order Number 20-316, and 47 entities, and institutions to react in a manner detrimental to
19 WHEREAS, the State of Florida continues under a declared 48 the state’s economy and residents, and
20 state of emergency, and 49 WHEREAS, the Legislature recognizes that practical, bright-
21 WHEREAS, throughout the declared state of emergency, the 50 line guidance protecting prudent businesses, entities, and
22 Governor’s executive orders included industry-specific 51 institutions significantly alleviates such liability concerns,
23 restrictions to prevent the spread of COVID-19 based on the best 52 while also continuing to provide for the public health, and
24 information available at the time, allowing and encouraging 53 WHEREAS, the Legislature finds that the unprecedented and
25 certain businesses to continue to safely operate, and 54 rare nature of the COVID-19 pandemic, together with the
26 WHEREAS, a strong and vibrant economy is essential to 55 indefinite legal environment that has followed, requires the
27 ensure that Floridians may continue in their meaningful work and 56 Legislature to act swiftly and decisively, NOW, THEREFORE,
28 ultimately return to the quality of life they enjoyed before the 57
29 COVID-19 outbreak, and 58 Be It Enacted by the Legislature of the State of Florida:
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59 88 (b) “COVID-19-related claim” means a civil liability claim
60 Section 1. Section 768.38, Florida Statutes, is created to 89 against a person, including a natural person, a business entity,
61 read: 90 an educational institution, a governmental entity, or a
62 768.38 Liability protections for COVID-19-related claims.— 91 religious institution which arises from or is related to COVID-
63 (1) The Legislature finds that the COVID-19 outbreak in the 92 19, otherwise known as the novel coronavirus. The term includes
64 state threatens the continued viability of certain business 93 any such claim for damages, injury, or death. Any such claim, no
65 entities, educational institutions, governmental entities, and 94 matter how denominated, is a COVID-19-related claim for purposes
66 religious institutions that contribute to the overall well-being 95 of this section. The term does not include a claim against a
67 of the state. The threat of unknown and potentially unbounded 96 healthcare provider, regardless of whether the healthcare
68 liability to such businesses, entities, and institutions, in the 97 provider meets one or more of the definitions in this
69 wake of a pandemic that has already left many of these 98 subsection.
70 businesses, entities, and institutions vulnerable, has created 99 (c) “Educational institution” means a school, including a
71 an overpowering public necessity to provide an immediate and 100 preschool, elementary school, middle school, junior high school,
72 remedial legislative solution. Therefore, the Legislature 101 secondary school, career center, or postsecondary school,
73 intends for certain business entities, educational institutions, 102 whether public or nonpublic.
74 governmental entities, and religious institutions to enjoy 103 (d) “Governmental entity” means the state or any political
75 heightened legal protections against liability as a result of 104 subdivision thereof, including the executive, legislative, and
76 the COVID-19 pandemic. The Legislature also finds that there are 105 judicial branches of government; the independent establishments
77 no alternative means to meet this public necessity, especially 106 of the state, counties, municipalities, districts, authorities,
78 in light of the sudden, unprecedented nature of the COVID-19 107 boards, or commissions; or any agencies that are subject to
79 pandemic. The Legislature finds the public interest as a whole 108 chapter 286.
80 is best served by providing relief to these businesses, 109 (e) “Healthcare provider” means:
81 entities, and institutions so that they may remain viable and 110 1. A provider as defined in s. 408.803.
82 continue to contribute to the state. 111 2. A clinical laboratory providing services in the state or
83 (2) As used in this section, the term: 112 services to health care providers in the state, if the clinical
84 (a) “Business entity” has the same meaning as provided in 113 laboratory is certified by the Centers for Medicare and Medicaid
85 s. 606.03. The term also includes a charitable organization as 114 Services under the federal Clinical Laboratory Improvement
86 defined in s. 496.404 and a corporation not for profit as 115 Amendments and the federal rules adopted thereunder.
87 defined in s. 617.01401. 116 3. A federally qualified health center as defined in 42
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Florida Senate - 2021 SB 72 Florida Senate - 2021 SB 72
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117 U.S.C. s. 1396d(l)(2)(B), as that definition exists on the 146 is limited to evidence tending to demonstrate whether the
118 effective date of this act. 147 defendant made such a good faith effort.
119 4. Any site providing health care services which was 148 b. If the court determines that the defendant made such a
120 established for the purpose of responding to the COVID-19 149 good faith effort, the defendant is immune from civil liability.
121 pandemic pursuant to any federal or state order, declaration, or 150 c. If the court determines that the defendant did not make
122 waiver. 151 such a good faith effort, the plaintiff may proceed with the
123 5. A health care practitioner as defined in s. 456.001. 152 action. However, absent at least gross negligence proven by
124 6. A health care professional licensed under part IV of 153 clear and convincing evidence, the defendant is not liable for
125 chapter 468. 154 any act or omission relating to a COVID-19-related claim.
126 7. A home health aide as defined in s. 400.462(15). 155 (d) The burden of proof is upon the plaintiff to
127 (f) “Religious institution” has the same meaning as 156 demonstrate that the defendant did not make a good faith effort
128 provided in s. 496.404. 157 under subparagraph (c)2.
129 (3) In a civil action based on a COVID-19-related claim: 158 (4) A civil action for a COVID-19-related claim must be
130 (a) The complaint must be pled with particularity. 159 commenced within 1 year after the cause of action accrues.
131 (b) At the same time the complaint is filed, the plaintiff 160 However, a plaintiff whose cause of action for a COVID-19-
132 must submit an affidavit signed by a physician actively licensed 161 related claim accrued before the effective date of this act must
133 in the state which attests to the physician’s belief, within a 162 commence such action within 1 year of the effective date of this
134 reasonable degree of medical certainty, that the plaintiff’s 163 act.
135 COVID-19-related damages, injury, or death occurred as a result 164 Section 2. If any provision of this act or its application
136 of the defendant’s acts or omissions. 165 to any person or circumstance is held invalid, the invalidity
137 (c) The court must determine, as a matter of law, whether: 166 does not affect other provisions or applications of the act
138 1. The plaintiff complied with paragraphs (a) and (b). If 167 which can be given effect without the invalid provision or
139 the plaintiff did not comply with paragraphs (a) and (b), the 168 application, and to this end the provisions of this act are
140 court must dismiss the action without prejudice. 169 severable.
141 2. The defendant made a good faith effort to substantially 170 Section 3. This act shall take effect upon becoming a law
142 comply with authoritative or controlling government-issued 171 and shall apply retroactively. However, the provisions of this
143 health standards or guidance at the time the cause of action 172 act shall not apply in a civil action against a particularly
144 accrued. 173 named defendant which is commenced before the effective date of
145 a. During this stage of the proceeding, admissible evidence 174 this act.
Page 5 of 6 Page 6 of 6
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
The Florida Senate
Committee Agenda Request
To: Senator Ed Hooper, Chair
Committee on Commerce and Tourism
Subject: Committee Agenda Request
Date: January 22, 2021
I respectfully request that Senate Bill #430, relating to Petroleum Fuel Measuring Devices, be
placed on the:
committee agenda at your earliest possible convenience.
next committee agenda.
Senator Ana Maria Rodriguez
Florida Senate, District 39
File signed original with committee office S-020 (03/2004)
The Florida Senate
, APPEARANCE RECORD
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Representing
Appearing at request of Chair: | Yes | No Lobbyist registered with Legislature: No
While it is a Senate tradition to encourage public testimony, time mpy not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
The Florida Sen te
appearance record
. / i .... (Deliver BOTH copies ofthis form to the Senator or Senate Professional Staff conducting the meeting)
Meeti g Date Bill Number (if applicable)
Topic Amendment Barcode (if applicable)
Name v
Job Title \ c I..
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Email . z. =¦
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Speaking: or | | Against F ] Information Waive Speaking: Qin Support Q Against
(The Chair will read this information into the record.)
Representing
Appearing at request of Chair: Yes No Lobbyist registered with Legislature: < Yes No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: CS/SB 430
INTRODUCER: Commerce and Tourism Committee; Senator Rodriguez
SUBJECT: Petroleum Fuel Measuring Devices
DATE: March 3, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. McMillan McKay CM Fav/CS
2. TR
3. RC
I. Summary:
CS/SB 430 preempts regulation of petroleum fuel measuring devices to the State and the
department of Agriculture and Consumer Services (department) and eliminates the department’s
authority to impose penalties for violations of petroleum fuel measuring device rules unless an
owner or operator of a petroleum fuel measuring device has failed to install a security device or
measure.
The bill takes effect July 1, 2021.
II. Present Situation:
The Department of Agriculture and Consumer Services
Generally
The Department of Agriculture and Consumer Services (department) has broad duties, including
safeguarding the public from deceptive business practices, supporting Florida’s agricultural
economy, and protecting the environment.1 Nineteen divisions and offices within the department
support its mission.2 The Division of Consumer Services inspects all measuring devices used in
selling or distributing fuel at retail gas pumps and ensures the use of security mechanisms on gas
pumps that help to prevent the use of skimmers.3 This division also provides consumer education
1
Florida Department of Agriculture and Consumer Services, About Us, available at
https://www.freshfromflorida.com/About-Us/ (last visited Mar. 3, 2021).
2
Florida Department of Agriculture and Consumer Services, Divisions & Offices, available at
https://www.freshfromflorida.com/Divisions-Offices/ (last visited Mar. 3, 2021).
3
See s. 525.07, F.S.; Florida Department of Agriculture and Consumer Services, Petroleum Inspection, available at
https://www.freshfromflorida.com/Business-Services/Petroleum-Inspection (last visited Mar. 3, 2021).
BILL: CS/SB 430 Page 2
regarding a variety of scams and frauds that target Florida residents, including identity theft and
credit card fraud.4
Petroleum Inspection and Enforcement
The department conducts routine inspections of petroleum distribution systems and analyzes
samples of petroleum5 products.6 These inspections include regular testing of gasoline,
alternative fuels,7 kerosene, diesel, fuel oil, antifreeze products, and brake fluid.8 Petroleum fuel
must be labeled accurately,9 and any mislabeled product must be placed under a stop-sale order
with the device or storage tanks of that product sealed until a release order is issued.10
The department is also required to inspect all measuring devices used in selling or distributing
petroleum fuel at wholesale and retail.11 The department may put a sticker on each petroleum
measuring device that has been inspected by the department, and at that point, the device owner
is responsible for its proper use and maintenance.12 Each individual who owns or manages a
petroleum measuring device must ensure that the device is measuring properly based upon the
tolerances13 defined by the department.14
Additionally, each individual who owns or manages a petroleum measuring device must affix or
install a security measure to restrict the unauthorized access of customer payment card
Information.15 Individuals must remedy any inadequate security measure within five days of
receiving a written notice of noncompliance from the department.16 After the fifth day of
noncompliance, further use of the retail petroleum measuring device may be prohibited by the
department, and a repeat violation found on the same device is cause for the measuring device to
4
See, e.g., Florida Department of Agriculture and Consumer Services, Scams and Fraud, available at
https://www.freshfromflorida.com/Consumer-Resources/Scams-and-Fraud (last visited Mar. 3, 2021).
5
Petroleum fuels include gasoline, kerosene (except when used as aviation fuel), diesel fuel, benzene, other like products of
petroleum under whatever name designated, or an alternative fuel used for illuminating, heating, cooking, or power purposes,
sold, offered, or exposed for sale in Florida. See s. 525.01(b), F.S.
6
See ch. 525, F.S., Florida Department of Agriculture and Consumer Services, Petroleum Inspection, available at
https://www.freshfromflorida.com/Business-Services/Petroleum-Inspection (last visited Mar. 3, 2021).
7
Alternative fuels include methanol, denatured ethanol, E85, and biodiesel. See s. 525.01(c), F.S.
8
See ch. 525, F.S., Florida Department of Agriculture and Consumer Services, Petroleum Inspection, available at
https://www.freshfromflorida.com/Business-Services/Petroleum-Inspection (last visited Mar. 3, 2021).
9
Petroleum fuel is deemed to be mislabeled if the measuring device is labeled so as to misrepresent the product as to quality,
content, or performance, or if the labeling on the measuring device is false or misleading. See s. 525.035(2), F.S.
10
See s. 525.035, F.S.
11
Section 525.07(1)(a), F.S.
12
Section 525.07(1)(b), F.S.
13
Tolerance refers to the total allowable error in excess or deficiency within a measurement. See s. 525.07(2), F.S.
14
Section 525.07(3), F.S.
15
The security measure must include (1) the placement of pressure-sensitive security tape over the panel opening that leads to
the scanning device for the retail petroleum fuel measuring device in a manner that will restrict the unauthorized opening of
the panel, (2) a device or system that will render the retail petroleum measuring device inoperable if there is an unauthorized
opening of the panel, (3) a device or system that encrypts the customer payment card information in the scanning device, or
(4) another security measure approved by the department. See s. 525.07(10), F.S.
16
See s. 525.07(10), F.S.
BILL: CS/SB 430 Page 3
immediately be taken out of service.17 The department may also seize any skimming device18 for
use as evidence.19
For violations of ch. 525, F.S., the department has the authority to issue warning letters, impose
administrative fines, or revoke or suspend any registration issued by the department.20
Card Skimmers
A card skimmer is an electronic device that is illegally installed inside gas pumps to collect a
consumer’s credit or debit card information when a card is swiped through the reader.21
Criminals sell the consumer’s information or use the information to make illegal purchases.22
The department has discovered and removed over 4,860 skimmers since 2015.23 The use,
possession, or sale of a skimmer is punishable as a third-degree felony under Florida law.24
Local Regulations
Currently, local governments are not prohibited from enacting fuel pump security measures that
are more restrictive than the rules established by the department. For instance, Lee County
requires each fuel pump to be equipped with a visible lock, a system that would render the pump
inoperable if it is accessed without a security code, or a device that encrypts customer payment
card information.25 Failure to affix an adequate security measure may result in fines of $250 per
gas pump for every day that the appropriate devices are not installed.26 Collier County,27
Charlotte County,28 and the Village of Estero29 also have local fuel pump ordinances.
17
Id.
18
A skimming device means a self-contained device that is (1) designed to read and store in the device's internal memory
information encoded on the computer chip, magnetic strip or stripe, or other storage mechanism of a payment card or from
another device that directly reads the information from a payment card; and (2) is incapable of processing the payment card
information for the purpose of obtaining, purchasing, or receiving goods, services, money, or anything else of value from a
merchant. See s. 817.625(1)(b), F.S.
19
See s. 525.07(10), F.S.
20
Section 525.16, F.S., gives the department the authority to issue a warning letter, impose an administrative fine in the Class
II category, or revoke or suspend any registration issued by the department. Additionally, s. 525.16, F.S., establishes that any
person who violates ch. 525, F.S., commits a misdemeanor of the first degree. Under this section, the department may also
submit cases for prosecution, and the department may bring an action in circuit court to enjoin the violation of any provision
in ch. 525, F.S.
21
Florida Department of Agriculture and Consumer Services, Card Skimmers, available at
https://www.freshfromflorida.com/Consumer-Resources/Scams-and-Fraud/Card-Skimmers (last visited Mar. 3, 2021).
22
Federal Trade Commission, Watch Out for Card Skimming at the Gas Pump (Aug. 7, 2018), available at
https://www.consumer.ftc.gov/blog/2017/06/avoid-skimmers-pump (last visited Mar. 3, 2021).
23
Florida Department of Agriculture and Consumer Services, FDACS Makes Three Arrests in Gas Pump Skimmer
Investigation, available at https://www.fdacs.gov/News-Events/Press-Releases/2021-Press-Releases/FDACS-Makes-Three-
Arrests-in-Gas-Pump-Skimmer-Investigation (last visited Mar. 3, 2021).
24
Section 817.625(2)(a), F.S. A third-degree felony is punishable by up to 5 years imprisonment and a $5,000 fine. Sections
775.082, 775.083, and 775.084 F.S.
25
See Lee County, Florida Ordinance No. 19-09.
26
Id.
27
See Collier County, Florida Ordinance No. 18-55.
28
See Charlotte County, Florida Ordinance No. 19-026.
29
See Village of Estero, Ordinance No. 18-25.
BILL: CS/SB 430 Page 4
Preemption
Local governments have broad authority to legislate on any matter that is not inconsistent with
federal or state law. A local government enactment may be inconsistent with state law if (1) the
Legislature has preempted a particular subject area or (2) the local enactment conflicts with a
state statute. Where state preemption applies, it precludes a local government from exercising
authority in that particular area.30
Florida law recognizes two types of preemption: express and implied. Express preemption
requires a specific legislative statement; it cannot be implied or inferred.31 Express preemption of
a field by the Legislature must be accomplished by clear language stating that intent.32 In cases
where the Legislature expressly or specifically preempts an area, there is no problem with
ascertaining what the Legislature intended.33
In cases determining the validity of ordinances enacted in the face of state preemption, the effect
has been to find such ordinances null and void.34 Implied preemption is actually a decision by the
courts to create preemption in the absence of an explicit legislative directive.35 Preemption of a
local government enactment is implied only where the legislative scheme is so pervasive as to
evidence an intent to preempt the particular area, and strong public policy reasons exist for
finding preemption.36 Implied preemption is found where the local legislation would present the
danger of conflict with the state's pervasive regulatory scheme.37
III. Effect of Proposed Changes:
The bill removes the ability for local jurisdictions to create and enforce regulations regarding
petroleum fuel measuring devices that are beyond the rules established by the department.
The bill also eliminates the department’s authority to impose penalties under s. 525.16, F.S.,38 for
violations of petroleum fuel measuring device rules under s. 525.07(10), F.S.,39 unless an owner
or operator of a petroleum fuel measuring device has failed to install a security device or
measure.
30
See James R. Wolf and Sarah Harley Bolinder, The Effectiveness of Home Rule: A Preemptions and Conflict Analysis, 83
Fla. B.J. 92 (June 2009).
31
See City of Hollywood v. Mulligan, 934 So.2d 1238, 1243 (Fla. 2006); Phantom of Clearwater, Inc. v. Pinellas County, 894
So.2d 1011, 1018 (Fla. 2d DCA 2005), approved in Phantom of Brevard, Inc. v. Brevard County, 3 So.3d 309 (Fla. 2008).
32
Mulligan, 934 So.2d at 1243.
33
Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So.3d 880, 886 (Fla. 2010).
34
See, e.g., Nat’l Rifle Ass’n of Am., Inc. v. City of S. Miami, 812 So.2d 504 (Fla. 3d DCA 2002).
35
Phantom of Clearwater, Inc., 894 So.2d at 1019.
36
Id.
37
Sarasota Alliance for Fair Elections, Inc., 28 So.3d at 886.
38
Section 525.16, F.S., gives the department the authority to issue a warning letter, impose an administrative fine in the Class
II category, or revoke or suspend any registration issued by the department. Additionally, s. 525.16, F.S., establishes that any
person who violates ch. 525, F.S., commits a misdemeanor of the first degree. Under this section, the department may also
submit cases for prosecution, and the department may bring an action in circuit court to enjoin the violation of any provision
in ch. 525, F.S.
39
Section 525.07(10), F.S., requires every person who owns or manages a retail petroleum fuel measuring device to install or
affix an unaltered security measure to restrict the unauthorized access of customer payment card information.
BILL: CS/SB 430 Page 5
The bill takes effect July 1, 2021.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
The department will be unable to impose monetary administrative penalties against
owners and managers of petroleum fuel measuring devices who violate s. 525.07(10),
F.S. Additionally, owners and managers of petroleum fuel measuring devices may be
able to install less expensive security measures to restrict the unauthorized access of
customer payment card information if they are currently subject to more stringent
requirements pursuant to a local ordinance.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
BILL: CS/SB 430 Page 6
VIII. Statutes Affected:
This bill substantially amends sections 525.07 and 525.16 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Commerce and Tourism on March 2, 2021:
The committee substitute clarifies that the department does not have the authority to
impose penalties under s. 525.16, F.S., for violations of petroleum fuel measuring device
rules under s. 525.07(10), F.S., unless an owner or operator of a petroleum fuel
measuring device has failed to install a security device or measure.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 430
Ì168096KÎ168096
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
03/03/2021 .
.
.
.
The Committee on Commerce and Tourism (Rodriguez) recommended
the following:
1 Senate Amendment (with title amendment)
2
3 Delete lines 23 - 29
4 and insert:
5 however, s. 525.16 may not be used to enforce this subsection
6 unless the device owner or operator has failed to install a
7 security device or measure.
8 Section 2. Subsection (6) is added to section 525.16,
9 Florida Statutes, to read:
10 525.16 Administrative fine; penalties; prosecution of cases
Page 1 of 2
2/5/2021 12:32:28 PM 577-01980-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 430
Ì168096KÎ168096
11 by state attorney.—
12 (6) This section may not be used to enforce rules adopted
13 pursuant to s. 525.07(10)(f) unless the device owner or operator
14 has failed to install a security device or measure.
15
16 ================= T I T L E A M E N D M E N T ================
17 And the title is amended as follows:
18 Delete lines 8 - 11
19 and insert:
20 petroleum fuel measuring devices unless an owner or
21 operator fails to take certain security measures;
22 amending s. 525.16, F.S.; exempting department
23 petroleum fuel measuring device rules from enforcement
24 under specified provisions unless an owner or operator
25 fails to take certain security measures; providing an
26 effective date.
Page 2 of 2
2/5/2021 12:32:28 PM 577-01980-21
Florida Senate - 2021 SB 430 Florida Senate - 2021 SB 430
By Senator Rodriguez
39-00726-21 2021430__ 39-00726-21 2021430__
1 A bill to be entitled 30 Section 3. This act shall take effect July 1, 2021.
2 An act relating to petroleum fuel measuring devices;
3 amending s. 525.07, F.S.; preempting the regulation of
4 petroleum fuel measuring devices to the state and the
5 Department of Agriculture and Consumer Services;
6 prohibiting the department from enforcing certain
7 provisions for violations of rules relating to
8 petroleum fuel measuring devices; amending s. 525.16,
9 F.S.; exempting department petroleum fuel measuring
10 device rules from enforcement under specified
11 provisions; providing an effective date.
12
13 Be It Enacted by the Legislature of the State of Florida:
14
15 Section 1. Paragraph (f) of subsection (10) of section
16 525.07, Florida Statutes, is amended to read:
17 525.07 Powers and duties of department; inspections;
18 unlawful acts.—
19 (10)
20 (f) The regulation of petroleum fuel measuring devices is
21 preempted to the state and to the department, which shall
22 enforce, and may adopt rules to administer, this subsection;
23 however, s. 525.16 may not be used to enforce this subsection.
24 Section 2. Subsection (6) is added to section 525.16,
25 Florida Statutes, to read:
26 525.16 Administrative fine; penalties; prosecution of cases
27 by state attorney.—
28 (6) This section may not be used to enforce rules adopted
29 pursuant to s. 525.07(10)(f).
Page 1 of 2 Page 2 of 2
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
The Florida Senate
Committee Agenda Request
To: Senator Ed Hooper, Chair
Committee on Commerce and Tourism
Subject: Committee Agenda Request
Date: February 11, 2021
I respectfully request that Senate Bill #848, relating to Electronic Legal Documents, be placed
on the:
committee agenda at your earliest possible convenience.
next committee agenda.
Senator Bobby Powell
Florida Senate, District 30
File signed original with committee office S-020 (03/2004)
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
3/2/21 APPEARANCE RECORD 848
Meeting Date Bill Number (if applicable)
Topic Electronic Legal Documents (Commerce and Tourism) Amendment Barcode (if applicable)
Name Martha Edenfield
Job Title
Address 6 E. College Ave Suite 1200 Phone 850-999-4100
Street
Tallahassee FL 32301 Email niedenfield@deanmean.com
City State Zip
Speaking: For (Against Information Waive Speaking: In Support Against
(The Chair will read this information into the record.)
Representing The Real Property, Probate and Trust Law Section of the Florida Bar
Appearing at request of Chair: Yes No Lobbyist registered with Legislature: Yes o
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak maybe asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: SB 848
INTRODUCER: Senator Powell
SUBJECT: Electronic Legal Documents
DATE: March 1, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Harmsen McKay CM Favorable
2. JU
3. RC
I. Summary:
In 2019, the Legislature assigned online notaries with the duty of witnessing documents via
audio-video technology, in addition to more traditional notarial duties performed via electronic
media. SB 848 amends part II of ch. 117, F.S., “Online Notarizations,” to clarify the procedures
applicable to the supervision of the witnessing of electronic records, and to conform language
throughout. The bill also updates statutory forms used by notaries public and online notaries to
reflect the principal signer or witness to appear via audio-video technology.
II. Present Situation:
In 2019, the Legislature substantially amended ch. 117, F.S., to authorize notaries public, civil-
law notaries, and commissioners of deeds to register as online notaries to provide online notary
services through two-way, remote audio-video communication technology, similar to skype and
zoom.1 This audio-video technology enables real time, two-way communication where the
parties (online notary, principal, and any witnesses) can see, hear, and communicate with each
other electronically.
An online notary may perform most of the traditional notary public’s duties, including the
administration of oaths and affirmations, taking of acknowledgements; attestation to photocopies
of certain documents, verification of vehicle identification numbers; and the certification of the
contents of a safe-deposit box.2 Additionally, section 117.285, F.S., allows online notaries to
supervise the witnessing of electronic records.3 Generally, a notary public is not required to
witness a document when all parties are physically present together.
1
Chapter 2019-71, Laws of Fla. CS/CS/HB 409 (2019) was signed into law on June 7, 2019, and took effect on January 1,
2020.
2
Florida Governor’s Office, Duties of a Notary Public, 13 (Dec. 17, 2019), available at, https://www.flgov.com/wp-
content/uploads/Governor's%20Notary_Reference_Manual_12.17.19%20edited1.pdf (last visited Mar. 1, 2021).
3
This duty was newly created by ch. 2019-71, Laws of Fla. (see supra note 1).
BILL: SB 848 Page 2
The Department of State (department) governs the registration of online notaries public (online
notaries), and as a prerequisite, requires registrants to:4
Be commissioned or appointed as a notary public pursuant to ch. 117, F.S., a civil-law notary
under ch. 118, or a commissioner of deeds under part IV of ch. 721;
Complete training that covers the duties, obligations, and technology requirements for
serving as an online notary;
Pay a $10 notary public registration fee;
Have a current contract with a remote online notarization service provider whose
technologies and credentialing processes satisfy the statutory minimum requirements; and
Maintain a $25,000 bond and a current errors and omissions insurance policy.
Online Notarizations
To perform an online notarization, an online notary must first determine whether the principal5 is
located outside of Florida at the time of notarization. If so, the online notary must confirm that
the principal understands that the notarization will occur according to Florida law.
Next, the online notary must confirm the principal’s identity.6 An online notary may do so by
documenting that he or she personally knows the principal, or, if the notary does not know the
principal, by documenting all of the following:
The principal’s remote presentation of a government-issued identification;7
The notary’s credential analysis8 of the identification to ensure its validity; and
The notary’s identity proofing9 of the principal, wherein a third party provides knowledge-
based authentication questions that must be correctly answered by the principal in a limited
amount of time.
If the notary cannot document these steps, then he or she is not permitted to perform the online
notarization. If the online notary can confirm the pertinent identities, then the online notary may
witness the principal electronically sign the document. Then the online notary adds his or her
unique electronic signature and digital notary seal using tamper-evident technology that would
document any subsequent change to the document.10
4
Section 117.225, F.S.; Fla. Admin. Code, R. 1N-7.001 (2020). See also, Department of State, Remote Online Notary Public,
https://dos.myflorida.com/sunbiz/other-services/notaries/remote-online-notary-public/ (last visited Mar. 1, 2021).
5
Section 117.201(12), F.S., defines a principal as “an individual whose signature is acknowledged, witnessed, or attested to
in an online notarization, or who takes an oath or affirmation administered by an online notary public.”
6
Section 117.265(4), F.S.
7
Section 117.05(5)(b)2., F.S., lists acceptable identification as: Florida identification card or driver license; a U.S. passport; a
passport issued by a foreign government if it is stamped by the U.S. Bureau of Citizenship and Immigration Services; a driver
license of id card issued by a state other than Florida, or a territory in the U.S., Canada, or Mexico; an id card issued by the
U.S. armed forces; a veteran health id card; an inmate id card issued by if the principal is still in the Florida Department of
Correction’s or U.S. Department of Justice’s custody; an id card issued by the U.S. Bureau of Citizenship and Immigration
Services; or, where all of the inmate’s identifications were confiscated upon his or her confinement—a sworn, written
statement from a law enforcement officer that states that the inmate is the person whose signature is to be notarized.
8
Section 117.201(3), F.S. See also, s. 117.295(3)(b), F.S.
9
Section 117.201(7), F.S. See also, s. 117.295(3)(a), F.S.
10
Section 117.255, F.S.
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For all online notarizations, an online notary must:
Make and maintain a recording of the audio-video component (video) of the notarization,
including the credential analysis and identity proofing he or she performed, if any; 11 and
Create an entry in his or her electronic journal of notarizations that notes specific information
about the notarization, including types of identification used and the names and addresses of
all parties involved.12
The online notary must maintain both the electronic journal and the recordings for at least 10
years after the notarization. An online notary, his or her estate, or guardian may transfer these
documents to a secure repository should he or she become incapable of maintaining them before
the 10 years have elapsed.13
Remote Witnessing of Documents
An online notary may also supervise the witnessing of electronic records via the same audio-
video platform used for online notarization.14 If the witness is physically present with the
principal, he or she can generally confirm his or her identity by stating his or her name and
current address on the recording. If the witness is connected via audio-video communication
technology (outside of the principal’s presence), the online notary must confirm the witness’
identity by presentation of government-issued identification and performance of a credential
analysis and identity proofing, as required for the principal in an online notarization.15
In certain circumstances,16 an online notary and his or her remote online notarization service
provider must provide a higher level of scrutiny to supervise the witnessing of a document. For
example:
Where the online notary has reason to believe that the principal is impaired or unable to care
for him or herself, the notary must ensure that the witness is physically-present with the
principal at the time of witnessing.17
The remote online notarization service provider must give the principal a notice that, if he or
she is a vulnerable adult,18 the witnessing of a document via audio-video technology is not
valid.19
The online notary must engage in a specific colloquy with the principal to ensure that the
principal is mentally capable of understanding the nature and effect of the document at the
time of witnessing.20
11
Section 117.245(2), F.S.
12
Section 117.245(1), F.S.
13
Section 117.245(4), F.S.
14
Section 117.285, F.S.
15
See supra “Online Notarizations.”
16
An online notary must perform additional inquiries where the document to be witnessed is a will, trust and testamentary
aspect, healthcare advanced directive, waiver of spousal rights, or power of attorney concurrent with a will. Section
117.285(5), F.S.
17
Section 117.285(5)(a)-(b), F.S.
18
Section 415.102, F.S., defines a “vulnerable adult” as a person who is 18 years or older, whose ability to perform the
normal activities of daily living or to provider for his or her own care or protection is impaired due to a mental, emotional,
sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.
19
Section 117.285(5)(c), F.S.
20
Section 117.285(5)(d)-(e), F.S.
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The above processes do not guarantee the ultimate effectiveness of the witnessing procedure.21
Retroactive Application of a Statute
Under Florida law, statutes are presumed to operate prospectively, not retroactively. In other
words, statutes generally apply only to actions that occur on or after the effective date of the
legislation, not before the legislation becomes effective.
The Florida Supreme Court has noted that, under the rules of statutory construction, if statutes
are to operate retroactively, the Legislature must clearly express that intent for the statute to be
valid.22 When statutes that are expressly retroactive have been litigated and appealed, the courts
have been asked to determine whether the statute applies to cases that were pending at the time
the statute went into effect. The conclusion often turns on whether the statute is procedural or
substantive.
In a recent Florida Supreme Court case, the Court acknowledged that “[t]he distinction between
substantive and procedural law is neither simple nor certain.”23 The Court further acknowledged
that their previous pronouncements regarding the retroactivity of procedural laws have been less
than precise and have been unclear.24
Courts, however, have invalidated the retroactive application of a statute if the statute impairs
vested rights, creates new obligations, or imposes new penalties.25 Still, in other cases, the courts
have permitted statutes to be applied retroactively if they do not create new, or take away, vested
rights, but only operate to further a remedy or confirm rights that already exist.26
III. Effect of Proposed Changes:
General Requirements
Section 1 amends s. 117.201(9), F.S., to clarify that an “online notarization” is the online
notary’s performance of a notarial act during which a principal or any witness appears
electronically.
Section 2 amends s. 117.285, F.S., to specify that the supervision of the witnessing of an
electronic record by an online notary pursuant to ch. 117, F.S., is a ‘notarial act.’27
21
For example, s. 117.285(5)(f), F.S., states that “[a] principal’s responses to the question in paragraphs (a) and (d) may be
offered as evidence regarding the validity of the instrument, but an incorrect answer may not serve as the sole basis to
invalidate an instrument.”
22
Walker & LaBerge, Inc., v. Halligan, 344 So. 2d 239 (Fla. 1977).
23
Love v. State, 286 So. 3d 177, 183 (Fla. 2019) quoting Caple v. Tuttle’s Design-Build, Inc., 753 So. 2d 49, 53 (Fla. 2000).
24
Love at 184.
25
R.A.M. of South Florida, Inc. v. WCI Communities, Inc., 869 So. 2d 1210 (Fla. 2004).
26
Ziccardi v. Strother, 570 So. 2d 1319 (Fla. 1990).
27
“Notarial act” is an undefined term, but is used commonly in ch. 117, F.S., to denote those acts that a notary public or
online notary may perform. See, e.g., ss. 117.021(7), 117.201(5), 117.245, and 117.265(3), F.S., which all use the term
“notarial act” to refer to an act performed by a notary in the course of his or her duty as a notary.
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Procedural Requirements
Section 2 also creates an explicit requirement that an online notary must comply with the online
notarization procedures of part II of ch. 117, F.S., including, e.g., the retention of records and
recording of the notarial act.28
Section 117.265(4), F.S., currently requires online notaries who perform an online notarization to
verify the principal’s identity according to specific procedures. Section 2 of the bill additionally
amends s. 117.285(2), F.S., regarding the witnessing of a document where the witness appears
remotely from the principal, to conform to the procedures outlined in s. 117.265(4), F.S.
Therefore, the bill requires an online notary of such a witnessing to verify both the witness’ and
principal’s identities by either documenting that he or she personally knows the principal, or, if
the notary does not know the principal, by documenting all of the following:
The individual’s remote presentation of a government-issued identification;29
The notary’s credential analysis30 of the identification to ensure its validity; and
The notary’s identity proofing31 of the individual, wherein a third party provides knowledge-
based authentication questions that must be correctly answered by the individual in a limited
amount of time.
Section 117.285(2), F.S., does not require an online notary to confirm a principal’s identity if the
witness is physically present with the principal at the time the document is witnessed; however,
the online notary must verify the witness’ identity by the witness’ statement of his or her name
and address on the record.32
Section 2 further amends s. 117.285(5), F.S., to clarify that a heightened scrutiny and additional
duties apply when “fewer than two witnesses are in the physical presence of the principal.” This
section of the bill then restates in newly created s. 117.285(5)(k), F.S., that the requirements of s.
117.285(5), F.S., do not apply if two or more witnesses appear in the physical presence of the
principal at the time of the notarial act.
Conforming Changes to Statutory Forms
In 2019, as part of the overall creation of online notarization by ch. 2019-71, Laws of Florida,
the Legislature updated section 117.05(4)(c), F.S., to require Florida notaries to indicate in a
jurat or notarial certificate (included as part of their notarization) whether the person appeared in-
person, or by audio-video communication to sign the notarized document.
Sections 709.2119(2)(c), 732.401(2)(e), 732.503(1), 732.703(5)(b)3., 732.703(5)(b)4., and
747.051(1), F.S.,33 contain statutory forms that must be notarized or witnessed to have effect.
28
See, s. 117.245, F.S.
29
See supra, note 8.
30
Section 117.201(3), F.S. See also, s. 117.295(3)(b), F.S.
31
Section 117.201(7), F.S. See also, s. 117.295(3)(a), F.S.
32
Section 117.285(2), F.S.
33
Sections 709.2119(2)(c), 732.401(2)(e), 732.503(1), 732.703(5)(b)3., F.S., 732.703(5)(b)4., and 747.051(1), F.S.,
respectively, contain statutory forms to complete a power of attorney, an election of a surviving spouse regarding the descent
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The current version of these forms include only a statement that the act was “sworn to…before
me by…” and therefore are incompatible with online notarization as authorized effective January
1, 2020. Sections 3, 4, 5, 7, and 8 of the bill update these forms to allow the notary to indicate
whether the subject of the notarization was physically present, or appeared by online
notarization.
Section 723.503(1), F.S., includes a statutory form for a self-proving will. Section 5 of the bill
amends this statutory form to allow the notary to fill in both the state and county in which it was
acknowledged or subscribed before the notary, for cases in which a document is prepared in
Florida—but actually notarized in a different state.
Technical Corrections
Sections 2 and 6 amends ss. 117.285(6)(b) and 732.521(7), F.S., respectively, to correct
erroneous cross-references.
Current law inaccurately describes the subject of both ss. 732.701 and 732.702, F.S., as “a
waiver of spousal rights.” However, s. 732.701, F.S., addresses wills and devises, and s. 732.702,
F.S., more specifically addresses waivers of spousal rights. Section 2 amends s. 117.285(5), F.S.,
to clarify the subjects of these cross-references as “an agreement concerning succession or a
waiver of spousal rights.”
Section 2 of the bill also corrects a reference in s. 117.285(5), F.S., to a revocable trust with
testamentary aspects as described in s. 736.0403(2)(b), F.S. Only revocable trusts can have
testamentary aspects, and therefore require the witnessing requirements described in s.
117.285(5), F.S. In a correlative change, the bill adds s. 117.285(h)2., F.S., to clarify that the
witnessing requirements in s. 117.285(5), F.S., do not affect the nontestamentary aspects of a
revocable trust under ch. 736, F.S.
Retroactivity and Effective Date
Section 9 states that the amendments made are remedial in nature and will apply retroactively to
January 1, 2020—the date upon which ch. 2019-71, Laws of Florida, creating part II of ch. 117,
F.S., took effect.
Section 10 provides that the bill takes effect upon becoming law.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
of homestead, a self-proving will or codicil, divorce and beneficiary designations, and sale of transfer of an absentee’s
property.
BILL: SB 848 Page 7
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
Online notaries and their associated remote online notarization platforms may be required
to update some of their practices as a result of the changes made in the bill. Additionally,
those who practice estate law in Florida will need to familiarize themselves with the
witnessing requirements established in the bill, as the number of documents witnessed by
an online notary will likely increase.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 117.201, 117.285,
709.2119, 732.401, 732.503, 732.521, 732.703, and 747.051, F.S.
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IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
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By Senator Powell
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1 A bill to be entitled 30 Be It Enacted by the Legislature of the State of Florida:
2 An act relating to electronic legal documents; 31
3 amending s. 117.201, F.S.; revising the definition of 32 Section 1. Subsection (9) of section 117.201, Florida
4 the term “online notarization”; amending s. 117.285, 33 Statutes, is amended to read:
5 F.S.; clarifying that supervising the witnessing of an 34 117.201 Definitions.—As used in this part, the term:
6 electronic record by an online notary public is a 35 (9) “Online notarization” means the performance of a
7 notarial act; specifying applicability of online 36 notarial act using electronic means in which the principal or
8 notarization procedures to supervision of the 37 any witness appears before the notary public by means of audio-
9 witnessing of an electronic record; modifying 38 video communication technology.
10 witnessing procedures; revising applicability; 39 Section 2. Section 117.285, Florida Statutes, is amended to
11 amending s. 709.2119, F.S.; revising the statutory 40 read:
12 form for an affidavit for acceptance of and reliance 41 117.285 Supervising the witnessing of electronic records.—
13 upon a power of attorney to reflect means of 42 Supervising the witnessing of an electronic record by an online
14 notarization; amending s. 732.401, F.S.; revising the 43 notary public in accordance with this section is a notarial act.
15 statutory form for the notice of election relating to 44 An online notary public may supervise the witnessing of
16 the descent of homestead property to reflect means of 45 electronic records by complying with the online notarization
17 notarization; amending s. 732.503, F.S.; revising the 46 procedures of this part and using the same audio-video
18 statutory form for the self-proof of a will or codicil 47 communication technology used for online notarization by a
19 to reflect means of notarization; amending s. 732.521, 48 principal, as follows:
20 F.S.; conforming a cross-reference; amending s. 49 (1) The witness may be in the physical presence of the
21 732.703, F.S.; revising statutory forms relating to 50 principal or remote from the principal provided the witness and
22 the disposition of certain assets at death to reflect 51 principal are using audio-video communication technology.
23 means of notarization; amending s. 747.051, F.S.; 52 (2) If the witness is remote from the principal and viewing
24 revising the form for a petition of summary relief for 53 and communicating with the principal by means of audio-video
25 the sale or transfer of certain property owned by an 54 communication technology, the principal’s and witness’s
26 absentee to reflect means of notarization; providing 55 identities identity must be verified in accordance with the
27 for construction and retroactive application; 56 procedures for identifying a principal as set forth in s.
28 providing an effective date. 57 117.265(4). If the witness is in the physical presence of the
29 58 principal, the witness must confirm his or her identity by
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59 stating his or her name and current address on the audio-video 88 2. Do you have any physical or mental condition or long-
60 recording as part of the act of witnessing. 89 term disability that impairs your ability to perform the normal
61 (3) The act of witnessing an electronic signature means the 90 activities of daily living?
62 witness is either in the physical presence of the principal or 91 3. Do you require assistance with daily care?
63 present through audio-video communication technology at the time 92 (b) If any question required under paragraph (a) is
64 the principal affixes the electronic signature and the witness 93 answered in the affirmative, the principal’s signature on the
65 hears the principal make a statement to the effect that the 94 instrument may only be validly witnessed by witnesses in the
66 principal has signed the electronic record. 95 physical presence of the principal at the time of signing.
67 (4) A witness remote from the principal and appearing 96 (c) Subsequent to submission of the answers required under
68 through audio-video communication technology must verbally 97 paragraph (a), the RON service provider shall give the principal
69 confirm that he or she is a resident of and physically located 98 written notice in substantially the following form:
70 within the United States or a territory of the United States at 99
71 the time of witnessing. 100 NOTICE: If you are a vulnerable adult as defined in s. 415.102,
72 (5) Notwithstanding subsections (2) and (3), if an 101 Florida Statutes, the documents you are about to sign are not
73 electronic record to be signed is a will under chapter 732, a 102 valid if witnessed by means of audio-video communication
74 revocable trust with testamentary aspects as described in s. 103 technology. If you suspect you may be a vulnerable adult, you
75 736.0403(2)(b) under chapter 736, a health care advance 104 should have witnesses physically present with you before
76 directive, an agreement concerning succession or a waiver of 105 signing.
77 spousal rights under s. 732.701 or s. 732.702, respectively, or 106
78 a power of attorney authorizing any of the transactions 107 (d) The act of witnessing an electronic signature through
79 enumerated in s. 709.2208, all of the following apply when fewer 108 the witness’s presence by audio-video communication technology
80 than two witnesses are in the physical presence of the principal 109 is valid only if, during the audio-video communication, the
81 shall apply: 110 principal provides verbal answers to all of the following
82 (a) Prior to facilitating witnessing of an instrument by 111 questions, each of which must be asked by the online notary
83 means of audio-video communication technology, a RON service 112 public in substantially the following form:
84 provider shall require the principal to answer the following 113 1. Are you currently married? If so, name your spouse.
85 questions in substantially the following form: 114 2. Please state the names of anyone who assisted you in
86 1. Are you under the influence of any drug or alcohol today 115 accessing this video conference today.
87 that impairs your ability to make decisions? 116 3. Please state the names of anyone who assisted you in
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117 preparing the documents you are signing today. 146 by witnesses who were present with the principal by means of
118 4. Where are you currently located? 147 audio-video communication technology shall contain a perceptible
119 5. Who is in the room with you? 148 indication of their presence by such means.
120 (e) An online notary public shall consider the responses to 149 (j) Nothing in This subsection does not shall affect the
121 the questions specified in paragraph (d) in carrying out of the 150 application of s. 709.2119.
122 duties of a notary public as set forth in s. 117.107(5). 151 (k) The requirements of this subsection do not apply if
123 (f) A principal’s responses to the questions in paragraphs 152 there are at least two witnesses in the physical presence of the
124 (a) and (d) may be offered as evidence regarding the validity of 153 principal at the time of the notarial act.
125 the instrument, but an incorrect answer may not serve as the 154 (6) Pursuant to subpoena, court order, an authorized law
126 sole basis to invalidate an instrument. 155 enforcement inquiry, or other lawful request, a RON service
127 (g) The presence of a witness with the principal at the 156 provider or online notary public shall provide:
128 time of signing by means of audio-video communication technology 157 (a) The last known address of each witness who witnessed
129 is not effective for witnessing the signature of a principal who 158 the signing of an electronic record using audio-video
130 is a vulnerable adult as defined in s. 415.102. The contestant 159 communication technology under this section.
131 of an electronic record has the burden of proving that the 160 (b) A principal’s responses to the questions in paragraph
132 principal was a vulnerable adult at the time of executing the 161 (5)(a) or paragraph (5)(d) (5)(b), as applicable.
133 electronic record. 162 (c) An uninterrupted and unedited copy of the recording of
134 (h) Nothing in this subsection shall: 163 the audio-video communication in which an online notarization is
135 1. Preclude a power of attorney, which includes banking or 164 performed.
136 investment powers enumerated in s. 709.2208, from being 165 (7) Except as set forth in s. 709.2202, an act of
137 effective with respect to any other authority granted therein or 166 witnessing performed pursuant to this section satisfies any
138 with respect to the agent’s authority in connection with a real 167 requirement that the witness must be a subscribing or attesting
139 property, commercial, or consumer transaction or loan, to 168 witness or must be in the presence of the principal at the time
140 exercise any power specified therein or to execute and deliver 169 of signing.
141 instruments obligating the principal or to draw upon the 170 (8) The law of this state governs the validity of
142 proceeds of such transaction or loan; or 171 witnessing supervised by an online notary public pursuant to
143 2. Affect the nontestamentary aspects of a revocable trust 172 this section, regardless of the physical location of the witness
144 under chapter 736. 173 at the time of witnessing. State and federal courts in this
145 (i) The electronic record containing an instrument signed 174 state have subject matter jurisdiction over any dispute arising
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175 out of an act of witnessing pursuant to this section, and may 204 filing of an action for dissolution or annulment of Affiant’s
176 issue subpoenas for records or to require the appearance of 205 marriage to the principal, or their legal separation; and
177 witnesses in relation thereto in accordance with applicable law. 206 d. There has been no revocation, or partial or complete
178 Section 3. Paragraph (c) of subsection (2) of section 207 termination, of the power of attorney or of Affiant’s authority.
179 709.2119, Florida Statutes, is amended to read: 208 4. Affiant is acting within the scope of authority granted
180 709.2119 Acceptance of and reliance upon power of 209 in the power of attorney.
181 attorney.— 210 5. Affiant is the successor to ...(insert name of
182 (2) A third person may require: 211 predecessor agent)..., who has resigned, died, become
183 (c) A written affidavit executed by the agent under this 212 incapacitated, is no longer qualified to serve, has declined to
184 subsection which may, but need not, be in the following form: 213 serve as agent, or is otherwise unable to act, if applicable.
185 214 6. Affiant agrees not to exercise any powers granted by the
186 STATE OF............ 215 Power of Attorney if Affiant attains knowledge that the power of
187 COUNTY OF............ 216 attorney has been revoked, has been partially or completely
188 217 terminated or suspended, or is no longer valid because of the
189 Before me, the undersigned authority, personally appeared 218 death or adjudication of incapacity of the Principal.
190 ...(agent)... (“Affiant”) by the means specified herein, who 219
191 swore or affirmed that: 220 ................
192 1. Affiant is the agent named in the Power of Attorney 221 ...(Affiant)...
193 executed by ...(principal)... (“Principal”) on ...(date).... 222
194 2. This Power of Attorney is currently exercisable by 223 Sworn to (or affirmed) and subscribed before me by means of
195 Affiant. The principal is domiciled in ...(insert name of state, 224 ☐ physical presence or ☐ online notarization this .... day of
196 territory, or foreign country).... 225 ...(month)..., ...(year)..., by ...(name of person making
197 3. To the best of Affiant’s knowledge after diligent search 226 statement)...
198 and inquiry: 227
199 a. The Principal is not deceased; 228 ...(Signature of Notary Public-State of Florida)...
200 b. Affiant’s authority has not been suspended by initiation 229
201 of proceedings to determine incapacity or to appoint a guardian 230 ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
202 or a guardian advocate; 231
203 c. Affiant’s authority has not been terminated by the 232 Personally Known OR Produced Identification
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233 ...(Type of Identification Produced)... 262 an interest in real property that the affiant believes to be
234 263 homestead property described in s. 4, Article X of the State
235 Section 4. Paragraph (e) of subsection (2) of section 264 Constitution, which real property being in ........ County,
236 732.401, Florida Statutes, is amended to read: 265 Florida, and described as: ...(description of homestead
237 732.401 Descent of homestead.— 266 property)....
238 (2) In lieu of a life estate under subsection (1), the 267 3. Affiant elects to take one-half of decedent’s interest
239 surviving spouse may elect to take an undivided one-half 268 in the homestead as a tenant in common in lieu of a life estate.
240 interest in the homestead as a tenant in common, with the 269 4. If affiant is not the surviving spouse, affiant is the
241 remaining undivided one-half interest vesting in the decedent’s 270 surviving spouse’s attorney in fact or guardian of the property,
242 descendants in being at the time of the decedent’s death, per 271 and an order has been rendered by a court having jurisdiction of
243 stirpes. 272 the real property authorizing the undersigned to make this
244 (e) The election must shall be made by filing a notice of 273 election.
245 election containing the legal description of the homestead 274
246 property for recording in the official record books of the 275 ............
247 county or counties where the homestead property is located. The 276 ...(Affiant)...
248 notice must be in substantially the following form: 277
249 278 Sworn to (or affirmed) and subscribed before me by means of ☐
250 ELECTION OF SURVIVING SPOUSE 279 physical presence or ☐ online notarization this .... day of
251 TO TAKE A ONE-HALF INTEREST OF 280 ...(month)..., ...(year)..., by ...(affiant)...
252 DECEDENT’S INTEREST IN 281
253 HOMESTEAD PROPERTY 282 ...(Signature of Notary Public-State of Florida)...
254 283
255 STATE OF........ 284 ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
256 COUNTY OF........ 285
257 286 Personally Known OR Produced Identification
258 1. The decedent, ................, died on ............. On 287
259 the date of the decedent’s death, the decedent was married to 288 ...(Type of Identification Produced)...
260 ............, who survived the decedent. 289
261 2. At the time of the decedent’s death, the decedent owned 290 Section 5. Subsection (1) of section 732.503, Florida
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291 Statutes, is amended to read: 320 Witness
292 732.503 Self-proof of will.— 321
293 (1) A will or codicil executed in conformity with s. 322 Acknowledged and subscribed before me by means of ☐
294 732.502 may be made self-proved at the time of its execution or 323 physical presence or ☐ online notarization by the testator,
295 at any subsequent date by the acknowledgment of it by the 324 (type or print testator’s name), who ☐ is personally known to me
296 testator and the affidavits of the witnesses, made before an 325 or ☐ who has produced (state type of identification—see s.
297 officer authorized to administer oaths and evidenced by the 326 117.05(5)(b)2.) as identification, and sworn to and subscribed
298 officer’s certificate attached to or following the will, in 327 before me by each of the following witnesses:, (type or print
299 substantially the following form: 328 name of first witness) who ☐ is personally known to me or ☐ who
300 329 has produced (state type of identification—see s.
301 STATE OF........ FLORIDA 330 117.05(5)(b)2.) as identification, by means of ☐ physical
302 COUNTY OF .... 331 presence or ☐ online notarization; and (type or print name of
303 I,............, declare to the officer taking my 332 second witness) who ☐ is personally known to me or ☐ who has
304 acknowledgment of this instrument, and to the subscribing 333 produced (state type of identification—see s. 117.05(5)(b)2.) as
305 witnesses, that I signed this instrument as my will. 334 identification, by means of ☐ physical presence or ☐ online
306 335 notarization. and Subscribed by me in the presence of the
307 ........................ 336 testator and the subscribing witnesses, by the means specified
308 Testator 337 herein, all on (date).
309 338 ...(Signature of Officer)...
310 We,........and........, have been sworn by the officer 339 ...(Print, type, or stamp commissioned name and affix official
311 signing below, and declare to that officer on our oaths that the 340 seal)...
312 testator declared the instrument to be the testator’s will and 341
313 signed it in our presence and that we each signed the instrument 342 Section 6. Subsection (7) of section 732.521, Florida
314 as a witness in the presence of the testator and of each other. 343 Statutes, is amended to read:
315 344 732.521 Definitions.—As used in ss. 732.521-732.525, the
316 ........................ 345 term:
317 Witness 346 (7) “Qualified custodian” means a person who meets the
318 347 requirements of s. 732.524(1) s. 732.525(1).
319 ........................ 348 Section 7. Paragraph (b) of subsection (5) of section
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349 732.703, Florida Statutes, is amended to read: 378 executed by the primary beneficiary in substantially the
350 732.703 Effect of divorce, dissolution, or invalidity of 379 following form:
351 marriage on disposition of certain assets at death.— 380
352 (5) In the case of an asset described in paragraph (3)(a), 381 STATE OF............
353 paragraph (3)(b), or paragraph (3)(c), unless payment or 382 COUNTY OF............
354 transfer would violate a court order directed to, and served as 383
355 required by law on, the payor: 384 Before me, the undersigned authority, personally
356 (b) As to any portion of the asset required by the 385 appeared by the means specified herein, ...(type or
357 governing instrument to be paid after the decedent’s death to a 386 print Affiant’s name)... (“Affiant”), who swore or
358 primary beneficiary explicitly designated in the governing 387 affirmed that:
359 instrument as the decedent’s spouse: 388 1. ...(Type or print name of Decedent)...
360 1. If the death certificate states that the decedent was 389 (“Decedent”) died on ...(type or print the date of the
361 married at the time of his or her death to that spouse, the 390 Decedent’s death)....
362 payor is not liable for making a payment on account of, or for 391 2. Affiant is a “primary beneficiary” as that
363 transferring an interest in, that portion of the asset to such 392 term is defined in Section 732.703, Florida Statutes.
364 primary beneficiary. 393 Affiant and Decedent were married on ...(type or print
365 2. If the death certificate states that the decedent was 394 the date of marriage)..., and were legally married to
366 not married at the time of his or her death, or if the death 395 one another on the date of the Decedent’s death.
367 certificate states that the decedent was married to a person 396 ...(Affiant)...
368 other than the spouse designated as the primary beneficiary at 397 Sworn to or affirmed before me by means of ☐
369 the time of his or her death, the payor is not liable for making 398 physical presence or ☐ online notarization by the
370 a payment on account of, or for transferring an interest in, 399 affiant who ☐ is personally known to me or ☐ who has
371 that portion of the asset to a secondary beneficiary under the 400 produced ...(state type of identification)... as
372 governing instrument. 401 identification this .... day of ...(month)...,
373 3. If the death certificate is silent as to the decedent’s 402 ...(year)....
374 marital status at the time of his or her death, the payor is not 403 ...(Signature of Officer)...
375 liable for making a payment on account of, or for transferring 404 ...(Print, Type, or Stamp Commissioned name of Notary
376 an interest in, that portion of the asset to the primary 405 Public)...
377 beneficiary upon delivery to the payor of an affidavit validly 406
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407 4. If the death certificate is silent as to the decedent’s 436 produced ...(state type of identification)... as
408 marital status at the time of his or her death, the payor is not 437 identification this .... day of ...(month)...,
409 liable for making a payment on account of, or for transferring 438 ...(year)....
410 an interest in, that portion of the asset to the secondary 439 ...(Signature of Officer)...
411 beneficiary upon delivery to the payor of an affidavit validly 440 ...(Print, Type, or Stamp Commissioned name of Notary
412 executed by the secondary beneficiary affidavit in substantially 441 Public)...
413 the following form: 442
414 443 Section 8. Subsection (1) of section 747.051, Florida
415 STATE OF............ 444 Statutes, is amended to read:
416 COUNTY OF............ 445 747.051 Summary procedure.—
417 446 (1) If the wife of any person defined as an absentee in s.
418 Before me, the undersigned authority, personally 447 747.01(1), or his next of kin if said absentee has no wife,
419 appeared by the means specified herein, ...(type or 448 shall wish to sell or transfer any property of the absentee
420 print Affiant’s name)... (“Affiant”), who swore or 449 which has a gross value of less than $5,000, or shall require
421 affirmed that: 450 the consent of the absentee in any matter regarding the
422 1. ...(Type or print name of Decedent)... 451 absentee’s children or in any other matter in which the gross
423 (“Decedent”) died on ...(type or print the date of the 452 value of the subject matter is less than $5,000, she may apply
424 Decedent’s death).... 453 to the circuit court for an order authorizing said sale,
425 2. Affiant is a “secondary beneficiary” as that 454 transfer, or consent without opening a full conservatorship
426 term is defined in Section 732.703, Florida Statutes. 455 proceeding as provided by this chapter. She may make the
427 On the date of the Decedent’s death, the Decedent was 456 application without the assistance of an attorney. Said
428 not legally married to the spouse designated as the 457 application shall be made by petition on the following form,
429 “primary beneficiary” as that term is defined in 458 which form shall be made readily available to the applicant by
430 Section 732.703, Florida Statutes. 459 the clerk of the circuit court:
431 460
432 ...(Affiant)... 461 In the Circuit Court
433 Sworn to or affirmed before me by means of ☐ 462
434 physical presence or ☐ online notarization by the 463 In re: ...(Absentee)..., case number .....
435 affiant who ☐ is personally known to me or ☐ who has 464
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465 PETITION FOR SUMMARY RELIEF
466
467 Petitioner, ...(Name)..., whose residence is ...(Street &
468 number)..., ...(City or town)..., and ...(County)..., Florida,
469 and who is the ...(Describe relationship to absentee)... of the
470 absentee, ...(Name)..., states that the absentee has been
471 ...(Imprisoned or missing in action)... since ...(Date)... when
472 ...(Describe details).... Petitioner desires to sell/transfer
473 ...(Describe property)... of the value of ...(Value)... because
474 ...(Give reasons).... The terms of sale/transfer are ...(Give
475 reasons).... Petitioner requires the consent of the absentee for
476 the purpose of .....
477 ...(Petitioner)...
478 State of .... Florida
479 County of....
480
481 Sworn to (or affirmed) and subscribed before me by means of
482 ☐ physical presence or ☐ online notarization this .... day of
483 ........, ...(year)..., by ...(name of person making
484 statement)....
485
486 ...(Signature of Notary Public - State of Florida)...
487 ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
488 Personally Known ........ OR Produced Identification
489 Type of Identification Produced.............................
490
491 Section 9. The amendments made by this act are remedial in
492 nature and shall apply retroactively to January 1, 2020.
493 Section 10. This act shall take effect upon becoming a law.
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CourtSmart Tag Report
Room: SB 110 Case No.: Type:
Caption: Senate Commerce Committee Judge:
Started: 3/2/2021 1:30:53 PM
Ends: 3/2/2021 3:14:03 PM Length: 01:43:11
1:30:58 PM Meeting called to order
1:31:05 PM Roll call
1:31:16 PM Quorum is present
1:31:27 PM Chair comments
1:32:17 PM Tab 1, SB 72, Senator Brandes
1:34:07 PM Senator Diaz question of sponsor
1:34:37 PM Response of sponsor
1:35:59 PM Senator Torres question to sponsor
1:36:28 PM Response of sponsor
1:37:09 PM Follow up question, Sen. Torres
1:37:20 PM Response of sponsor
1:38:43 PM Amendment Barcode 951728 by Senator Powell
1:41:49 PM Speaker, Steven Cain for amendment
1:42:52 PM Sponsor Brandes comments on amendment
1:43:19 PM Sen. Powell close on amendment
1:44:20 PM Amendment not adopted
1:44:31 PM Sen. Pizzo, 358018 Late filed amendment
1:46:39 PM Speaker, Steven Cain, FL Justice Assoc., for amendment
1:47:24 PM Speaker, William Large, FL Justice Institute, against amendment
1:48:43 PM Question by Sen. Pizzo to Speaker
1:48:57 PM Speaker response
1:49:17 PM Follow up question by Sen. Pizzo
1:49:31 PM Speaker Response
1:50:07 PM Sen. Brandes comments on amendment
1:51:15 PM Sen. Pizzo close on amendment
1:52:09 PM Amendment not adopted
1:52:20 PM Amendment 321008, by Sen. Pizzo
1:53:45 PM Speaker, Steven Cain, for amendment
1:55:57 PM Speaker, William Large, against amendment
1:57:37 PM Sen. Brandes comments on amendment
1:59:05 PM Sen. Pizzo closes on amendment
1:59:24 PM Amendment not adopted
1:59:34 PM Amendment 466366, by Sen. Pizzo
2:00:05 PM Speaker, Steven Cain, for amendment
2:01:10 PM Speaker, William Large against amendment
2:02:10 PM Sen. Brandes comments on amendment
2:03:01 PM Sen. Pizzo closes on amendment
2:04:37 PM Amendment not adopted
2:04:49 PM Amendment 928904, by Sen. Pizzo
2:05:57 PM Speaker, Steven Cain, for amendment
2:07:22 PM Speaker, William Large, against amendment
2:08:30 PM Sen. Brandes comments on amendment
2:09:02 PM Sen. Pizzo closes
2:09:44 PM Amendment is not adopted
2:10:41 PM Amendment 475864 by Sen. Torres
2:12:21 PM Sen. Torres withdraws amendment
2:12:31 PM Amendment 407288 by Sen. Torres
2:13:12 PM Speaker, Steven Cain, for amendment
2:14:09 PM Speaker, William Large, against amendment
2:15:24 PM Sen. Brandes comments on amendment
2:15:34 PM Sen. Torres closes on amendment
2:17:13 PM Amendment is not adopted
2:17:22 PM Request for roll call on Amendment 407288
2:17:46 PM Amendment not adopted
2:18:04 PM Amendment 624688 by Sen. Taddeo
2:19:35 PM Speaker, Steven Cain for amendment
2:20:35 PM Speaker, William Large, against amendment
2:21:45 PM Sen. Brandes comments on amendment
2:22:08 PM Sen. Taddeo closes on amendment
2:22:42 PM Amendment is not adopted
2:23:08 PM Back on the bill, Sen. Pizzo comments/questions on bill
2:24:03 PM Response of Sponsor and follow up question from Sen Pizzo
2:24:28 PM Back and forth between the two Senators
2:27:18 PM Sen. Powell question to sponsor
2:28:24 PM Response of Sponsor
2:28:25 PM Sen. Torres question
2:28:36 PM Sen. Brandes response
2:29:16 PM Sen. Powell question to sponsor
2:29:39 PM Sponsor response
2:29:46 PM And follow up of Sen. Powell
2:30:06 PM Sen. Brandes responds
2:30:43 PM Sen. Taddeo question to sponsor
2:30:57 PM Response of Sponsor
2:31:18 PM Follow up of Sen. Taddeo
2:31:37 PM Response of sponsor
2:32:02 PM David Cruz, Florida League of Cities, waive in support
2:32:07 PM Brewster Bevis, Associated Industries of Florida, waive in support
2:32:15 PM Ned Bowman, FPMA, waive in support
2:32:25 PM Danielle Scoggins, FL Realtors Assoc, waive in support
2:32:35 PM Pamela Burch-Fort, NAACP Florida State Conference, waive against
2:32:50 PM Diego Echeverri, Americans for Prosperity waive in support
2:32:59 PM Travis Moore, Community Assoc Institute waive in support
2:33:08 PM James Mosteller, Foundation for FL Future waive in support
2:33:16 PM Kara Gross, ACLU waive against
2:33:28 PM Barbara DeVane, FL NOW & FL Alliance for Retired Americans waive against
2:33:47 PM Speaker, Ida Eskamani, Florida Rising against bill
2:35:08 PM Speaker, Dr. Rich Templin, AFL-CIO, against bill
2:36:19 PM Speaker, Spencer Pylant, Greater Miami Chamber of Commerce, for the bill
2:37:32 PM Speaker, Susan McGrath, Florida Consumer Action Network, against the bill
2:38:21 PM Speaker, Carolyn Johnson, FL Chamber of Commerce, for the bill
2:39:25 PM Speaker, Steven Cain, against the bill
2:40:33 PM Speaker, William Large for the bill
2:42:15 PM Speaker, Jake Farmer, FL Retail Fed., for the bill
2:43:07 PM Speaker, Samantha Padgett, FL Restaurant for bill
2:44:24 PM Speaker, Tim Nungesser, NFIB for bill
2:46:47 PM Sen. Torres for comments
2:49:23 PM Sen. Pizzo comments/questions
2:51:44 PM Sen. Brandes waived close
2:51:56 PM Roll call SB 72
2:52:03 PM SB 72 passes favorably
2:52:32 PM Tab 2, SB 430, Sen. Rodriguez
2:53:37 PM Amendment Barcode 168096, by Sen. Rodriguez
2:54:12 PM Sen. Powell, question of sponsor
2:54:26 PM Response of sponsor
2:55:00 PM Sen. Powell, follow up
2:55:11 PM Sponsor response
2:56:43 PM Amendment adopted
2:56:57 PM Sen. Torres question of sponsor
2:57:39 PM Response of Sponsor
2:57:45 PM Speaker, Ned Bowman, waive in support
2:58:09 PM Speaker, Emily Buckley, DOACS
2:59:50 PM Sen. Pizzo question of speaker
3:00:25 PM Response of speaker
3:03:18 PM Back and forth with Sen. Pizzo and speaker
3:05:27 PM Sen. Taddeo question of speaker
3:06:34 PM Speaker response
3:06:42 PM Follow up questions and responses.
3:08:36 PM Sen. Torres, question of speaker
3:08:56 PM Speaker response
3:09:28 PM Follow up, Sen. Torres
3:09:39 PM Speaker Response
3:10:11 PM Sen. Rodriguez closes on bill
3:10:32 PM Roll call on SB 430
3:10:49 PM SB 430 passes favorably as a CS
3:11:12 PM Tab 3, SB 848, Sen. Powell
3:12:08 PM Speaker, Martha Edenfield, FL Real Property, FL Bar waive in support of bill
3:12:31 PM Sen. Powell closes on bill
3:13:02 PM Roll call on SB 848
3:13:12 PM SB 848 passes favorably
3:13:32 PM Sen. Wright moves adjournment
3:13:47 PM Meeting adjourned.
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