Regulatory Reform Subcommittee, Meeting Packet, The Florida House of Representatives, March 17, 2021
Summary
This meeting packet is for the Regulatory Reform Subcommittee of The Florida House of Representatives Commerce Committee, with Chris Sprowls, Speaker, and Bob Rommel, Chair, named on the cover. The committee meeting notice gives Wednesday, March 17, 2021, 01:00 pm to 03:00 pm at Webster Hall (212 Knott) for consideration of bills that include HB 317 Public Accountancy, HB 331 Displacement of Private Waste Companies, HB 755 Arrest Booking Photographs, and HB 953 Criminal History in Professional Licensing Applications. The staff analysis of HB 317 states that the bill creates a "retired status" for CPA licensees and has an effective date of July 1, 2021. The text of HB 6053 amends section 633.202, Florida Statutes, to delete an obsolete provision and remove a scheduled repeal.
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
“Regulatory Reform Subcommittee, Meeting Packet, The Florida House of Representatives, March 17, 2021.”
Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2021-03-17-3101-regulatory-reform-subcommittee-meeting-packets-mtg1289-08f4dd4a1d/
, SHA-256 ea56841d895ed0459ec9d226a8ce1812e2731648cf7bb6b80ff597285fe1d746.Full text
Regulatory Reform Subcommittee
Wednesday, March 17, 2021
1:00 PM – 3:00 PM
Webster Hall (212 Knott)
Meeting Packet
Chris Sprowls Bob Rommel
Speaker Chair
The Florida House of Representatives
Commerce Committee
Regulatory Reform Subcommittee
Chris Sprowls Bob Rommel
Speaker Chair
AGENDA
Wednesday, March 17, 2021
Webster Hall (212 Knott)
1:00 PM-3:00 PM
I. Call to Order & Roll Call
II. Welcoming Remarks
III. Consideration of the following bills(s):
HB 317 by Rep. Caruso
Public Accountancy
HB 331 by Rep. McClure
Displacement of Private Waste Companies
C /HB 385 by Local Administration & Veterans Affairs Subcommittee, Rep. Hage
Alcoholic Beverage Licenses, Lake and Sumter Counties
CS/HB 473 by Civil Justice & Property Rights Subcommittee, Rep. Toledo
Construction Liens and Bonds
HB 751 by Rep. Clemons
City of Gainesville, Alachua County
CS/HB 755 by Criminal Justice & Public Safety Subcommittee, Rep. Fischer
Arrest Booking Photographs
HB 953 by Rep. Chambli s, Rep.
s Plakon
Criminal History in Professional Licensing Applications
HB 991 by Rep. Busatta Cabrera
Petroleum Fuel Measuring Devices
303 House Office Building, 402 South Monroe 1reet, Tallahassee, Florida 32399- I 300
(850) 717-4870 Fax: (850) 410-0096
Page 2
HB 1307 by Rep. Beltran
Telephone Solicitation
HB 6053 by Rep. Yarborough
Doorstep Waste Containers
IV. Adjomnment
Committee Meeting Notice
HOUSE OF REPRESENTATIVES
Regulatory Reform Subcommittee
Start Date and Time: Wednesday, March 17, 2021 01 :00 pm
End Date and Time: Wednesday, March 17, 2021 03:00 pm
Location: Webster Hall (212 Knott)
Duration: 2.00 hrs
Consideration of the following blll{s):
HB 317 Public Accountancy by Caruso
HB 331 Displacement of Private Waste Companies by McClure
CS/ HB 385 Alcoholic Beverage Licenses, Lake and Sumter Counties by Local Administration & Veterans
Affairs Subcommittee, Hage
CS/ HB 473 Construction Liens and Bonds by Civil Justice & Property Rights Subcommittee, Toledo
HB 751 City of Gainesville, Alachua County by Clemons
CS/ HB 755 Arrest Booking Photographs by Criminal Justice & Public Safety Subcommittee, Fischer
HB 953 Criminal History in Professional Licensing Applications by Chambliss, Plakon
HB 991 Petroleum Fuel Measuring Devices by Busatta Cabrera
HB 1307 Telephone Solicitation by Beltran
HB 6053 Doorstep Waste Containers by Yarborough
This meeting will be five-streamed on ht tps://theflorldachannel.org/. Persons who wish to attend must
register at www.myfloridahouse.gov, at least three hours before the meeting, and pick up a pass at the
Legislatfve Welcome Center on the 4th Floor of the Capltol beginning one hour before the start of the
meet ing. Audience seating will be socially distanced and will be available on a first-come, first-served basis.
Reglstratloh closes three hours before the meeting starts.
NOTICE FINALIZED on 03/15/2021 4:13PM by Rigas.Amanda
03/15/2021 04:13:42PM Leagis ® Page 1 of 1
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL#: HB 317 Public Accountancy
SPONSOR(S): Caruso and others
TIED BILLS: IDEN./SIM. BILLS: SB 616
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform Subcommittee Wright Anstead
2) Commerce Committee
SUMMARY ANALYSIS
In Florida, public accountancy is regulated by the Board of Accountancy under the Department of Business
and Professional Regulation. The practice of public accountancy includes offering to the public the
performance of services involving audits, reviews, compilations, tax preparation, management advisory or
consulting services, or preparation of financial statements. In order to practice public accountancy, a person
must be licensed as a certified public accountant (CPA).
Every biennium, CPAs must complete 80 hours of continuing professional education (CPE), by board rule. At
least 5 percent of the total hours required by the board must be in the subject of public accounting ethics.
Applicants for CPA licensure by endorsement must be of good moral character; complete certain CPE
requirements; and either not be licensed but have passed an equivalent examination in another state or
territory, or hold a license from another state or territory if the criteria issuance is equivalent to that of Florida.
Inactive status for CPA licenses can be initiated voluntarily by the licensee, or for failure to meet the CPE
license renewal requirements. The board is authorized to adopt rules establishing the minimum requirements
for placing a license on inactive status, renewing an inactive license, and reactivating the inactive license.
Currently, a retired status for CPA licensure does not exist.
The bill:
• Clarifies the licensure by endorsement provision for applicants that have passed an examination but do
not hold a license in "another" state or territory, to instead not require a license in "any" state or territory;
• Allows nonresidents seeking CPA license renewal to satisfy the CPE requirements (except for the
ethics component) , with either the applicable CPE requirements in the state in which the applicant's
office is located, or Florida CPE requirements, if the other state has no CPE license renewal
requirements;
• Specifies that a "majority" of the total CPE hours required for ethics training must include a review of
certain provisions and related administrative rules; and
• Creates a "retired status" for active or inactive CPA licensees over 55 years old;
The bill does not have a fiscal impact on state or local governments.
The bill has an effective date of July 1, 2021 .
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0317.RRS.D0CX
DATE: 3110/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A EFFECT OF PROPOSED CHANGES:
Background
The Florida Board of Accounting (board) in the Department of Business and Professional Regulation
(DBPR) is the agency responsible for regulating and licensing more than 35,000 active and inactive
certified public accountants (CPA) and more than 5,400 accounting firms in Florida. The Division of
Certified Public Accounting provides administrative support to the 9-member board, which consists of 7
CPAs and 2 laypersons.1
To engage in the practice of public accounting, an individual or firm must be licensed and business
entities must meet certain formation requirements. 2
The "practice of public accountancy" includes offering to the public the performance of services
involving audits, reviews, compilations, tax preparation , management advisory or consulting services,
or preparation of financial statements. 3
The initial licensing fee for a CPA license is $50, and the biennial renewal fee is $105.4
A person may be charged with a first-degree misdemeanor if they are not a licensed CPA and they
perform: 5
• Services involving the expression of an opinion on financial statements,
• The attestation as an expert in accountancy to the reliability or fairness of presentation of
financial information,
• The utilization of any form of opinion or financial statements that provide a level of assurance,
• The utilizatioh of any form of disclaimer of opinion which conveys an assurance of reliability as
to matters not specifically disclaimed, or
• The expression of an opinion on the reliability of an assertion by one party for the use by a third
party.
License by Endorsement
An applicant is eligible for licensure by endorsement if the applicant: 6
• is of good moral character;
• has completed 80 hours of continuing professional education (CPE) if it has been at least 2
years since passing the licensing examination;7 and either:
o is not licensed, but has otherwise met the licensing requirements and has passed a
licensing examination that is substantially equivalent to the Florida examination; or
o holds a valid license to practice public accounting issued by another state or territory of
the United States, if the criteria for issuance of such license are substantially equivalent
to a Florida license or is otherwise permitted.
1 S . 473.303, F.S.
2
S . 473 .302, F.S.
3 S . 473.302(8), F.S.
4 Email from Roger Scarborough, Director of the Division of Public Accounting , Florida Department of Business and Professional
Regulation, RE: CPAs (Feb. 8, 2021).
5 S. 473.322(1)(c), F.S.
6 S. 468.8414(3), (4) , F.S.
7 R. 61H1-29 .003, F.A.C.
STORAGE NAME: h0317.RRS.D0CX PAGE: 2
DATE: 3/10/2021
Continuing Education
CPAs are required to complete 80 hours8 of CPE in public accounting subjects every 2 years to renew
their license. The board has the authority to prescribe by rule additional CPE hours, not to exceed 25
percent of the total hours required, for failure to complete the hours required for renewal by the end of
the reestablishment period.9
At least 25 percent of the total hours required by the board must be in accounting-related and auditing-
related subjects, as distinguished from other subjects that include federal and local taxation matters
and management services.10
Five percent of the total hours required by the board must be in ethics applicable to the practice of
public accounting. This requirement must be administered by providers approved by the board and
include a review of the provisions of ch. 455, F.S., ch. 473, F.S., and the related administrative rules. 11
Inactive Licenses
CPAs are authorized to request their license be placed on inactive status, or the licensee may be
placed on inactive status for failing to meet the CPE requirements for license renewal. The board is
authorized to adopt rules establishing the minimum requirements for placing a license on inactive
status, renewing an inactive license, and reactivating the inactive license.12
The fee for reactivating an inactive CPA license is $380.13 The maximum CPE requirements for
reactivating an inactive or delinquent license are 120 hours, including:
• At least 30 hours in accounting-related and auditing-related subjects;
• Not more than 30 hours in behavioral subjects; and
• A minimum of 8 hours in ethics subjects approved by the board.
Retired Status
The American Institute of CPAs (AICPA) estimates that approximately 75 percent of its members will be
eligible to retire by the year 2020. According to AICPA, "many of these retirees are well respected
business leaders in their communities who would like to find ways to continue to be of service, without
necessarily remaining an active CPA in practice."14
The AICPA provides a uniform retired CPA status in their model rules that states may adopt allowing
retired CPAs to offer a limited array of volunteer, uncompensated services to the public. Inactive CPAs,
of at least 55 years of age are allowed to refer to themselves as "Retired-CPAs" and register as such
with their state board of accountancy. They are able to participate in activities such as volunteer tax
preparation services, government-sponsored business mentoring programs, and on boards of nonprofit
organizations.15
8
S. 473.312(1)(a), F.S. allows the board to require between 48 and 80 hours of CPE every 2 years. The board requires 80 hours in r.
61H1 -33.003, F.A.C.
9 S. 473.312(1)(a), F.S.
10 Id.
11
S. 473.312(1)(b),(c) , F.S.
12 S. 473.313, F.S.
13 R. 61H1-31 .006, F.A.C.
14
American Institute of Certified Public Accountants, https://www.aicpa.org/advocacy/state/retiredcpastatusexposuredraft.html.
15 /d. .
STORAGE NAME: h0317.RRS.DOCX PAGE: 3
DATE: 3/10/2021
Effect of the Bill
The bill revises the CPA license by endorsement provision for applicants that have passed an
examination but do not hold a license in "another" state or territory. The bill simply changes "another"
state or territory to "any" state or territory.
The bill allows nonresident CPA licensees who are seeking renewal of a license in this state to satisfy
the CPE requirements (except for the ethics component), if the nonresident licensee has complied with
applicable CPE requirements in the state in which his or her office is located. If the state in which the
nonresident licensee's office is located has no CPE license renewal requirements, the nonresident
licensee must comply with Florida CPE requirements.
The bill specifies that a "majority" of the total CPE hours required for ethics training must include a
review of the provisions of ch. 455, F.S., ch . 473, F.S., and the related administrative rules. Currently,
no amount is specified .
The bill creates a "retired status" for CPA licensees. The bill defines a "retired licensee" as a licensee
whose license has been placed in retired status by the department.
Retired status license applicants are required to:
• Be at least 55 years old;
• Hold a current active or inactive CPA license;
• Apply for the status to DBPR; and
• Be in good standing and not the subject of any sanction or disciplinary action.
Applications must be prescribed by the board and the applicant must attest that they have no
association with accounting or any of the services described ins. 473.302(8)(a), (c), or (d), F.S.
Licensees granted retired status who reenter the workforce in a position that has an association with
accounting or any of the services described ins. 473.302(8)(a), (c), or (d), F.S., automatically lose the
retired status except for the uncompensated volunteer services that retirees are allowed to participate
in.
Licensees granted retired status are allowed to:
• Serve without compensation on a board of directors or board of trustees;
• Provide volunteer tax preparation services;
• Participate in a government-sponsored business mentoring program such as the Internal
Revenue Service's Volunteer Income Tax Assistance program or the Small Business
Administration's SCORE program; and
• Participate in an advisory role for a similar charitable, civic, or other nonprofit organization.
The board must require retired licensees to affirm in writing their understanding of the limited types of
activities allowed while in retired status and their professional duty to ensure competency to participate
in the activities.
Retired licensees are authorized to:
• Accept routine reimbursement for actual costs of travel and meals associated with volunteer
services or de minimis per diem amounts paid to the licensee to cover such expenses as
allowed by law;
• Use the title of "retired CPA" on business cards, letterhead or other printed or electronic
documents as long as it is used in a manner that is not confusing to the public; and
• Reactivate the license in a conditional manner determined by the board . The conditions of
reactivation must require the payment of fees and the completion of any CPE requirements.
STORAGE NAME h0317.RRS.DOCX PAGE: 4
DATE: 3/10/2021
Retired licensees are not required to:
• Have a certificate issued with the word "retired" on the certificate; or
• Maintain the CPE requirements under s. 473.312, F.S.
Retired licensees are prohibited from offering or rendering professional services that require:
• The licensee's signature; and
• Use of the CPA title, regardless of whether the word "retired" is attached to such title.
8 . SECTION DIRECTORY:
Section 1 Amends s. 473.308, F.S., revising a requirement for obtaining a license by endorsement.
Section 2 Amends s. 473.311, F.S., providing license renewal requirements for nonresident
licensees.
Section 3 Amends s. 473.312, F.S., providing requirements for continuing education content.
Section 4 Amends s. 473.313, F.S., providing requirements for retired status licenses.
Section 5 Provides an effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
8. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Some out-of-state CPAs may need to complete less CPE in order to maintain a Florida CPA license.
D. FISCAL COMMENTS:
None.
Ill. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
STORAGE NAME: h0317 RRS.DOCX PAGE: 5
DATE 3/10/2021
B. RULE-MAKING AUTHORITY:
The board will need to update rules regarding CPE and generate rules for retired status licenses. There
is sufficient rulemaking authority to do so.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
STORAGE NAME: h0317.RRS.D0CX PAGE:6
DATE: 3/10/2021
FLORIDA H O U S E 0 F REPRESENTATIVES
HB 317 2021
1 A bill to be entitled
2 An act relating to public accountancy; amending s.
3 473.308, F.S.; requiring certain applicants to not be
4 licensed in any state or territory in order to be
5 licensed by endorsement; amending s. 473.311, F.S.;
6 providing license renewal requirement s for nonresident
7 l icensee s; amending s. 473.312, F.S.; re quiring that a
8 majority of the hours required for continuing
9 education include specific content; amending s.
10 473.313, F.S.; authorizing cert ain Florida certified
11 public accountants to a pply t o the Depart ment of
12 Business and Professional Regulation to have their
13 license placed in a retired status; providing
14 requirements for such conversion; providing
15 requi r eme nts a nd prohi b i tions f or retire d lice nsee s;
16 aut horizing r e tired licensee s t o use a specified title
17 under certain circumstances; providing that retired
18 licensees are not requi red to maintain continuing
19 educat ion r e quireme nt s ; authoriz ing r e t ired li censees
20 to rea ctivate t hei r l icenses i f c ertai n conditi ons are
21 met; defining the term "retired licensee''; providing
22 an e ff ective date.
23
24 Be It Enacted by t h e Legislatu re of t he State o f Flo rida:
25
Page 1 of 8
CODING: Words stricken are deletions; words underlined are additions.
hb0317-00
FLORIDA H O U S E 0 F REPRESENTATIVES
HB 317 2021
26 Section 1. Subsection (7) of section 473.308, Florida
27 Statutes, is amended to read:
28 473.308 Licensure.-
29 (7) The board shall certify as qualified for a license by
30 endorsement an applicant who:
31 (a) Is not licensed and has not been licensed in any
32 another state or territory and who has met the requirements of
33 this section for education, work experience, and good moral
34 character and has passed a national, regional, state, or
35 territorial licensing examination that is substantially
36 equivalent to the examination required bys. 473.306; or
37 (b)l. Holds a valid license to practice public accounting
38 issued by another state or territory of the United States, if
39 the criteria for issuance of such li cense were substantially
40 equivalent to the licensure criteria t hat existed in t his state
41 at the time the license was issued;
42 2. Holds a valid license to practice public accounting
43 issued by another sta te or territory of the United States but
44 the criteria for issuance of such li cense did not meet the
45 re quirements of subparagraph 1.; ha s met the requireme nts of
46 this section for education, work experience, and good moral
47 character; and has passed a na tional, reg iona l , state, or
48 ter rito rial licensing examina tion that is sub s tantial l y
49 e qu ivalent to the e xamination requi red bys. 473 . 306; or
50 3. Holds a valid license to practice public accounting
Page 2 of 8
CODING: Words stricken are deletions; words underlined are additions.
hb031 7-00
FLORIDA H O U S E 0 F REPRESENTATIVES
HB 317 2021
51 issued by another state or territory of the United States for at
52 least 10 years before the date of application; has passed a
53 national, regional, state, or territorial licensing examination
54 that is substantially equivalent to the examination required by
55 s. 473.306; and has met the requirements of this section for
56 good moral character.
57 Section 2. Subse cti on (1) of section 473.311, Florida
58 Statutes, is amended to read:
59 473.311 Renewal of license.-
60 (1)~ The departmen t shall renew a license iss u ed under
61 s . 473.308 upon receipt of the renewal application and fee and
62 upon certification by the board that the Florida certified
63 public accountant has satisfactorily completed the continuing
64 education requirements of s. 473.312.
65 (b) A nonresident lice nsee seeking renewal of a license in
66 this state is determined to have met the continuing education
67 requirements ins. 473 . 312, except for the requirements ins .
68 473 .31 2 (1) ( c ), if the licensee has complied with the continuing
69 e ducation requirements app licable in the s tat e in which his or
70 her office is located. If the s tate in which t h e non re sident
71 licensee 's office is located has no continuing educa tio n
72 re quire ment s for license renewals, t he nonresident li cense e must
73 comply with the continu ing education requirements ins. 473.31 2 .
74 Section 3 . Paragraph (c) of subsection (1) of section
75 473 .31 2, Florida Statutes, is amended to read:
Page 3 of 8
CODING: Words strisken are deletions; words underlined are additions.
hb0317-00
FLORIDA H O U S E 0 F REPRESENTATIVES
HB 317 2021
76 473.312 Continuing education.-
77 ( 1)
78 (c) Not less than 5 percent of the total hours required by
79 the board shall be in ethics applicable to the practice of
80 public accounting. This requirement shall be administered by
81 providers approved by the board and a majority of the hours
82 shall include a review of the provisions of chapter 455 and this
83 chapter and the related administrative rules.
84 Section 4. Section 473.313, Florida Statutes, is amended
85 to read:
86 473.313 Inactive status and retired status.-
87 (1) A Florida certified public accountant may request that
88 her or his license be placed in an inactive status by making
89 application to the department. The board may prescribe by rule
90 fees for placing a license on inactive status, renewal of
91 inactive status, and reactivation of an inactive license.
92 ~-R+ A license that has become inactive under this
93 subsection -f-±+ or for failure to complete the requirements ins.
94 473.312 may be reactivated under s. 473.311 upon application to
95 the department. The board may prescribe by rule continuing
96 education requirements as a condition of reactivating a license.
97 The maximum continuing education requirements for reactivating a
98 license are 120 hours, including at least 30 hours in
99 accounting-related and auditing-related subjects, not more than
100 30 hours in behavioral subjects, and a minimum of 8 hours in
Page 4 of 8
CODING: Words stricken are deletions; words underlined are additions.
hb0317-00
FLORIDA H O U S E 0 F REPRESENTATIVES
HB 317 2021
101 ethics subjects approved by the board, for the reactivation of a
102 license that is inactive or delinquent.
103 J.!2.l-f-3+- A license that is delinquent for failure to report
104 completion of the requirements ins. 473.312 may be reactivated
105 under s. 473.311 upon application to the department.
106 Reactivation requires the payment of an application fee as
107 determined by the board and certification by the Florida
108 certified public accountant that the applicant satisfactorily
109 completed the continuing education requirements set forth under
110 s. 473.311. If the license is delinquent on January 1 because of
111 failure to report completed continuing education requirements,
112 the applicant must submit a complete application to the board by
113 March 15 immediately after the delinquent period.
114 l.£.l+4+ Any Florida certified public accountant holding an
115 inactive license may be p e rmitted to reactivate such license in
116 a conditional manner. The conditions of reactivation shall
117 require the payment of fees and the completion of required
118 continuing education.
119 J.s!l-t§+ Notwithstanding the p r ovisions o f s. 455.271, the
120 board may, at it s discret i on, reins ta te the license o f an
121 individual whose license has become null and void if the
122 individual has made a good faith effort to comply with this
123 section but has fa iled to c omply beca use o f illness o r unusual
124 h a rdship. The ind i v i dua l s h a ll apply to the bo a rd fo r
125 reinstatement in a manner prescribed by rules of the board and
Page 5 of 8
CODING: Words strisken are deletions; words underlined are additions.
hb0317-00
FLORIDA H O U S E 0 F R E P R E S E N T A T I V E S
HB 317 2021
126 shall pay an application fee in an amount determined by rule of
127 the board. The board shall require that the individual meet all
128 continuing education requirements as provided in paragraph (a)
129 ouboeetion (2), pay appropriate licensing fees, and otherwise be
130 eligible for renewal of licensure under this chapter.
131 (2) A Florida certified public accountant who is at least
132 55 years of age and currently holds an active or inactive
133 license under this chapter may apply to the department for her
134 or his license to be placed in retired status. The application
135 must be prescribed by the board and must state that the
136 applicant h a s no association with accounting or any of the
137 services described in s. 473.302 (8) (a), (c), or (d). If a
138 licensee who has been granted retired status reenters the
139 workforce in a position that has an association with accounting
140 or any of the services described in s . 473.302 (8) (a), (c), or
141 (d), the licensee automatically loses her or his retired status
142 except as provided in paragraph (a).
143 (a) A retired licensee who serves without compensation on
144 a board of directors or board of trustees, provides vo luntee r
145 tax preparation services, pa rt icipat es in a government-sponsored
146 business mentoring program such as the Internal Revenue
147 Service's Volunteer Income Tax Assistance program or the Small
148 Business Administration's SCORE program, or participates in an
149 a dvisory role for a simi l ar charitable, civic, or other
150 nonprofit organiz ation s hall continue to be eligible fo r retired
Page 6 of 8
CODING: Words stricken are deletions; words underlined are additions.
hb0317-00
F L O R I D A H O U S E 0 F R E P R E S E N T A T I V E S
HB 317 2021
151 status.
152 (b) The board shall require a retired licensee to affirm
153 in writing her or his understanding of the limited types of
154 activities in which she or he may engage while in retired status
155 and that she or he has a professional duty to ensure that she or
156 he holds the professional competencies necessary to participate
157 in such activities.
158 (c) Licensees may convert their license to retired status
159 only if they hold a license in good standing and are not the
160 subject of any sanction or disciplinary action.
161 (d) A retired licensee may accept routine reimbursement
162 for actual costs of travel and meals associated with volunteer
163 services or de minimis per diem amounts paid to the licensee to
164 cover such expenses as allowed by law.
165 (e) A retired licensee may use the title of "retired CPA"
166 on any business card or letterhead or any other printed or
167 electronic document. However, such title must not be applied in
168 such a manner that could confuse the public as to the current
169 status of the licensee. The licensee is not required to have a
170 certificate issued with the word "retired'' on the certificate.
171 (f) A retired licensee is not required to maintain the
172 continuing education requirements under s. 473.312.
173 (g) A retired licensee may not offer or render
174 professional services that require her or his signature and use
175 of the CPA title, regardless of whether the word "retired" is
Page 7 of 8
CODING: Words stricken are deletions; words underlined are additions.
hb0317-00
F L O R I D A H O U S E 0 F R E P R E S E N T A T I V E S
HB 317 2021
176 attached to such title.
177 (h) A retired licensee may reactivate her or his license
178 in a conditional manner determined by rule of the board. The
179 conditions of reactivation must require the payment of fees and
180 the completion of any required continuing education.
181
182 For the purposes of this subsection, the term "retired licensee"
183 means a licensee whose license has been placed in retired status
184 by the department.
185 Section 5. This act shall take effect July 1, 2021.
Page 8 of 8
CODING: Words stricken are deletions; words underlined are additions.
hb0317-00
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL#: HB 331 Displacement of Private Waste Companies
SPONSOR(S): McClure
TIED BILLS: IDEN./SIM. BILLS: SB 694
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Local Administration & Veterans Affairs 14 Y, 4 N Renner Miller
Subcommittee
2) Regulatory Reform Subcommittee Anstead
3) State Affairs Committee
SUMMARY ANALYSIS
Counties and municipalities must provide and regulate waste disposal services, but may contract some or all of
these services to others. If a private company provides waste disposal services for a local government, and the
local government decides to provide the services and displace the private company from continuing to provide
the service, the local government must:
• Hold at least one public hearing that is publically noticed, with separate notice provided to the private
company providing the waste disposal service at least 45 days before the hearing;
• Take measures to provide waste disposal services within one year of the final public hearing; and
• Give the private company notice of the displacement at least three years before the local government
provides the waste disposal services or pay the private company an amount equal to the company's
preceding 15 month's gross receipts.
The requirement to provide three years' notice or pay the preceding 15 month's gross receipts does not apply if
the local government and the private company agree to a different notice period or compensation amount.
The bill removes the discretion for the local government to pay a displaced company in lieu of providing a 3-
year notice period. The bill makes mandatory the 3 years' notice requirement before local governments may
provide actual service and requires local governments to pay displaced private waste companies an amount
equal to the company's gross receipts for the preceding 18 months after the 3-year waiting period ends.
Local governments and private companies may no longer negotiate different notice periods or buyout terms.
The bill may have a negative insignificant fiscal impact on local governments. See FISCAL COMMENTS
section.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME h0331b.RRS.D0CX
DATE: 3/1 5/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
Home Rule Authority
The Florida Constitution grants local governments broad home rule authority. Specifically, non-charter
county governments may exercise those powers of self-government that are provided by general or
special law.1 Counties operating under a county charter have all powers of self-government not
inconsistent with general law or special law approved by the vote of the electors.2 Likewise,
municipalities have governmental, corporate, and proprietary powers that enable them to conduct
municipal government, perform municipal functions and provide services, and exercise any power for
municipal purposes except when expressly prohibited by law. 3
County governments have authority to provide fire protection, ambulance services, parks and
recreation, libraries, museums and other cultural facilities, waste and sewage collection and disposal,
and water and alternative water supplies.4 Municipalities are afforded broad home rule powers with the
exception of annexation, merger, exercise of extraterritorial power, or subjects prohibited or preempted
by the Federal or State Constitutions, county charter, or statute. 5
Solid Waste
Counties have the authority to provide and regulate waste and sewage collection and disposal. 6 A
county may require any person within the county to demonstrate the existence of some arrangement or
contract by which the person's solid waste 7 will be disposed of in a manner consistent with county
ordinance or state or federal law.8 Counties also have authority to adopt ordinances that govern the
disposal of solid waste generated outside the county at the county's solid waste disposal facility. 9
The Department of Environmental Protection (DEP) is responsible for implementing and enforcing the
solid waste management program, which provides guidelines for the storage, separation, processing,
°
recovery, recycling , and disposal of solid waste throughout the state.1 Counties are responsible for
operating solid waste disposal facilities, which are permitted through DEP, in order to meet the needs
of the incorporated and unincorporated areas of the county11 and may contract with other persons to
fulfill some or all of its solid waste responsibilities.12 Each county must ensure that municipalities within
its boundaries participate in the preparation and implementation of recycling and solid waste
management programs through interlocal agreements or other means.13
1
Art. VIII, s. l(t), Fla. Const.
2 Art. VIII, s. 1(g), Fla. Const.
3
Art VIII, s. 2(b). See also s. 166.021(1), F.S.
4
S. 125.01 , F.S.
5
S. 166.021, F.S.
6
S. 125.0l(l)(k)I., F.S.
7
S. 403 .703(36), F.S., defines solid waste as sludge unregulated under the federal Clean Water Act or Clean Air Act, sludge from a
waste treatment works, water supply treatment plant, or air pollution control facility, or garbage, rubbish, refuse, special waste, or
other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from domestic, industrial,
commercial, mining, agricultural, or governmental operations.
8
S. 125.0l(l)(k)2., F.S.
9
S. 403 .706(1), F.S.
10
Sees. 403.705, F.S.
II S. 403.706(1), F.S.
12
S. 403 .706(8), F.S.
13
S. 403 .706(3), F.S.
STORAGE NAME: h0331 b.RRS.DOCX PAGE: 2
DATE: 3/15/2021
In providing services or programs for solid waste management, local governments and state agencies
are encouraged to use the most cost-effective means for providing services and are encouraged to
contract with private entities for any or all such services or programs to assure that those services are
provided on the most cost-effective basis.14 Local governments are expressly prohibited from
discriminating against privately owned solid waste management facilities solely because they are
privately owned. 15
Competition with Private Companies
Current law16 addresses competition between private waste management companies and local
government solid waste departments for third party service contracts. Private companies have had
concerns about public entities subsidizing their costs with funds from other government operations,
allowing the public entities to unfairly compete for contracts. 17 Balancing those concerns, the law
requires that local governments providing specific solid waste collection services in direct competition
with a private company must comply with local environmental, health, and safety standards applicable
to private companies providing competitive collection services. 18 Additionally, local governments may
not enact or enforce any license, permit, registration procedure, or associated fee that:
• Does not apply to the local government and for which there is no substantially similar requirement
applicable to the local government; and
• Provides the local government with a material advantage in competing with a private company on
terms of cost or the prompt or efficient provision of such collection services, excluding zoning,
land use, or comprehensive planning requirernents.19
When providing solid waste collection services outside of its jurisdiction in competition with private
companies, a local government is prohibited from instituting predatory pricing schemes. 20 Private
companies have legal remedies against local governments that violate these statutory prohibitions.21
Displacement of Private Garbage, Trash, and Refuse Collection Services
A local government, or group of local governments, may not displace a private company22 providing
garbage, trash, or refuse collection without following certain statutory requirements. The term
"displacement" refers to a local government deciding to provide a solid waste collection service and
prohibiting a private company from continuing to provide the same service it was providing at the time
the local government decision was made.23
Displacement does not include situations such as public and private sector competition for individual
contracts; a local government refusing to renew an expiring contract with a private company; local
government action in response to any act by a private company that is a threat to public health or
safety or a substantial public nuisance; contracts between local governments and private companies
absent an ordinance that displaces another private company; a majority of property owners in the
displacement area petitioning for the local governing body to take over collection services; municipal
14
S. 403.7063, F.S.
1s Id.
16
S. 403.70605. See ch. 2000-304, s. 1, Laws of Fla.
17
See Florida House of Representatives, CSIHB 1425 Final Analysis, p. 2 (May 12, 2000), available at
http://archive.flsenate.gov/data/session/2000/House/bills/analysis/pdf/HB 1425S IZ.CA.pdf (last visited Feb. 4, 2021).
18
S. 403.70605(l)(a), F.S.
19
S. 403.70605(l )(a)2., F.S.
20
S. 403 .70605(2), F.S.; see also ss. 542. 18 and 542.19, F.S.
21
Sees. 403.70605(l)(b) and (2)(c), F.S.; see also ss. 542. 18 and 542.1 9, F.S.
22
"Private company" does not include another local government providing solid waste collection services. S. 403.70605(4)(b), F.S.
23
S. 403.70605(3)(a), F.S.
STORAGE NAME: h0331b.RRS.DOCX PAGE: 3
DATE: 3/15/2021
annexations honoring existing solid waste contracts pursuant to law; or a private company licensed to
provide service for a limited time whose license expires and is not renewed by the local government. 24
Before displacing a private company, a local government must first hold at least one public hearing,
publically noticed, with separate notice by mail to private companies providing service in the jurisdiction
at least 45 days before the hearing.25 The local government must take measures to provide services
within one year of the final public hearing, and give three years' notice to a private company before
actually providing the service that displaces the company. To avoid the three years' notice requirement,
the local government may pay the displaced company an amount equal to the company's preceding
fifteen months' gross receipts for the displaced service in the displacement area. The local government
and the private company are not prohibited from agreeing to a different notice period or compensation
amount. 26
If a private company refuses to continue operations under the terms and conditions of its existing
agreement during the three year notice period, the company no longer falls within the definition of
displaced. 27 In addition , the notice period is deemed to have run as of the date the private company
stops providing services within the displacement area.28
Other Restrictions on Terminating Private Solid Waste Collection Services
A new municipality, not including the merger of existing municipalities, cannot incorporate without
honoring any existing solid waste contracts for five years or the remainder of the contract term ,
whichever is shorter.29 Similarly, municipalities cannot annex additional land subject to existing solid
waste contracts without honoring the existing contracts for five years or the remainder of the contract
term , whichever is shorter.30 If an exclusive franchisee has provided services in an area to be annexed
for at least the preceding six months, the franchisee may continue to provide service in the area for the
shorter of five years or the expiration of its service contract as long as it meets certain conditions
including providing the service at a reasonable cost. 31
Effect of the Bill
The bill removes the discretion for the local government to pay a displaced company in lieu of providing
a three year notice period. The bill makes the three years' notice to a private company mandatory and
requires a local government to pay a displaced private waste company an amount equal to the
company's preceding eighteen months' gross receipts after the notice period ends. Local governments
and private companies may no longer negotiate different notice periods or buyout terms.
B. SECTION DIRECTORY:
Section 1. Amends s. 403.70605, F.S., mandating local governments initiate a three years' notice
period before displacing private waste companies, after which the local governments
must pay displaced companies an amount equal to their gross receipts for the preceding
eighteen months.
Section 2. Provides an effective date of July 1, 2021 .
24
S. 403.70605(3)(a), F.S.
25
S. 403.70605(3), F.S.
26
S. 403.70605(3)(c), F.S.
27
S. 403.70605(3)(a)5., F.S.
28
S. 403 .70605(3), F.S.
29
See s. 165.06 1(1)(t), F.S.; see also art. I, s.10, Fla. Const.
30
See s. 171.062(4), F.S.; see also art. I, s. 10, Fla. Const.
31
S. 17 l.062(4)(a)2., F.S.
STORAGE NAME: h0331b.RRS.DOCX PAGE: 4
DATE: 3/15/2021
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues :
None.
2. Expenditures:
See FISCAL COMMENTS section.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
There may be a positive economic impact on the private sector because private waste collection
companies will receive an amount equal to their gross receipts for the preceding 18 months after the
three year waiting period ends.
D. FISCAL COMMENTS:
There may be a negative fiscal impact on local governments because they will be required to pay
displaced companies an amount equal to a company's preceding 18 months' of gross receipts after the
three year waiting period ends.
Ill. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditure of funds; reduce the authority that counties or municipalities have to
raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
C. The bill neither provides authority nor requires rulemaking by executive branch agencies.
D. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
None.
STORAGE NAME: h0331b .RRS.D0CX PAGE: 5
DATE: 3/15/2021
FLORIDA H O U S E 0 F REPRESENTATIVES
HB 331 2021
1 A bill to be entitled
2 An act relating to displacement of private waste
3 companies; amending s. 403.70605, F.S.; requiring a
4 local government to pay a specified amount of
5 compensation to a displaced private waste company at
6 the end of a specified notice period; removing a
7 provision authorizing a local government to pay a
8 specified amount of compensation to a private waste
9 company as an alternative to delaying displacement for
10 a specified period; removing a provision authorizing a
11 local government and private waste company to
12 negotiate such compensation and notice; providing an
13 effective date.
14
15 Be It Enacted by the Legislature of the State of Florida:
16
17 Section 1. Paragraph (c) of subsection (3) of section
18 403.70605, Florida Statutes, is amended to read:
19 403.70605 Solid waste collection services in competition
20 with private companies.-
21 (3) DISPLACEMENT OF PRIVATE WASTE COMPANIES.-
22 (c) Following the final public hearing held under
23 paragraph (b), but not later than 1 year after the hearing, the
24 local government may proceed to take those measures necessary to
25 provide the service. The A local government shall provide 3
Page 1 of 2
CODING: Words strisken are deletions; words underlined are additions.
hb0331-00
FLORIDA H O U S E 0 F REPRESENTATIVES
HB 331 2021
26 years' notice to the a private company before it engages in the
27 actual provision of the service that displaces the company. At
28 the end of the 3-year notice period As an alternative to
29 delaying displacement 3 years, the a local government shall fftO-J'
30 pay the a displaced company an amount equal to the company's
31 preceding~ -l-§. months' gross receipts for the displaced service
32 in the displacement area. The 3-year notice period shall lapse
33 as to any private company being displaced when the company
34 ceases to provide service within the displacement area. Nothing
35 in this paragraph prohibits the local government and the company
36 from voluntarily negotiating a different notice period or amount
37 of compensation .
38 Section 2. This act shall take effect July 1, 2021.
Page 2 of 2
CODING: Words stricken are deletions; words underlined are additions.
hb0331 -00
REGULATORY REFORM SUBCOMMITTEE
HB 331 by Rep. McClure
Displacement of Private Waste Companies
AMENDMENT SUMMARY
March 17, 2021
Amendment 1 by Rep. McClure (line 34):
The amendment:
• Continues to allow local governments and private companies to negotiate displacement
notice periods or buyout terms that are different from the ones in current law.
• Provides that the bill does not apply if a local government has provided the 3 years'
notice of displacement to a private company on or before December 31, 2020.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 331 (2021)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/0 OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Regulatory Reform
2 Subcommittee
3 Representative McClure offered the following:
4
5 Amendment (with title amendment)
6 Remove linel '34-38 and insert:
7 ceases to provide service within the displacement area. Nothing
8 in this paragraph prohibits the local government and the company
9 from voluntarily negotiating a different notice period or amount
10 of compensation.
11 Section 2. This act does not apply to any displacement as
12 defined in s. 403.70605(3), if the local government provided the
13 3 years' notice to the displaced private company or companies on
14 or before December 31, 2020.
15 Section 3. This act shall take effect July 1, 2021.
16
242791 - h0331-line 34.docx
Published On: 3/16/2021 4:33:35 PM
Page 1 of 2
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 331 (2021)
Amendment No. 1
17 -----------------------------------------------------
18 T I T L E A ME N D ME N T
19 Remove lines 10-12 and insert:
20 a specified period; providing applicability ; providing an
242791 - h0331-line 34 . docx
Published On: 3/16/2021 4:33:35 PM
Page 2 of 2
-
('")
(/)
I
OJ
<..)
0)
O'I
HOUSE OF REPRESENTATIVES LOCAL BILL STAFF ANALYSIS
BILL#: CS/HB 385 Alcoholic Beverage Licenses, Lake and Sumter Counties
SPONSOR(S): Local Administration & Veterans Affairs Subcommittee, Hage
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Local Administration & Veterans Affairs 17 Y, 0 N, As Renner Miller
Subcommittee cs
2) Regulatory Reform Subcommittee Thompson
3) State Affairs Committee
SUMMARY ANALYSIS
Florida's Beverage Law places a limit on the number of "quota licenses" that the Department of Business and
Professional Regulation (DBPR) may issue per county. A quota license allows a business to serve any
alcoholic beverage regardless of alcohol content, including liquor. DBPR is not limited by the Beverage Law on
the number of licenses it may issue for businesses that serve only malt beverages and wine.
Ch. 2002-334, Laws of Fla., as amended, authorizes the Division to grant special alcoholic beverage licenses
to an entertainment or lodging complex within the commercial district of a retirement community in the
incorporated Town of Lady Lake and in certain unincorporated areas of Sumter County (later revised to include
other areas in Sumter County). The entertainment lodging complex seeking the special alcoholic beverage
license must be managed, controlled, and operated by a primary business entity under one business name
and may include only individual business entities that are owned, managed, controlled, and operated
independently of the primary business entity and that are separately licensed by the Division.
The entity may include one or more restaurants, bars, breweries or brew pubs, clubhouses, recreation centers,
lodging or banquet facilities, special activity tents, or similar structures located within any area in which a
restaurant or lounge is a permitted use as defined by the Town of Lady Lake or Sumter County ordinances.
The licenses do not entitle the licensee to maintain or construct any structure on the premises that is prohibited
by the ordinances or regulations of the Town of Lady Lake or Sumter Counties.
The bill revises one of the governmental entities within which the specified businesses are eligible to receive
such licenses, by replacing the Town of Lady Lake with Lake County.
The bill revises the boundaries within Lake and Sumter County to provide that a commercial district of a
retirement community may be issued a special alcoholic beverage license within incorporated and
unincorporated portions of both counties.
The bill revises the criteria for the alcoholic beverage licenses to provide that the licensee must adhere to
applicable county or municipal ordinances or regulations.
According to the Economic Impact Statement, implementation, administration, and enforcement costs of the
extended boundaries will be minimally insignificant and will have no fiscal impact to the state.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0385b.RRS.D0CX
DATE: 3/11/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
Alcoholic Beverage Licensing
The Division of Alcoholic Beverages and Tobacco (DABT) within the Department of Business and
Professional Regulation (DBPR) is responsible for regulating the conduct, management, and operation
of the manufacturing, packaging, distribution, and sale within the state of alcoholic beverages under
Florida's Beverage law. 1
The Beverage Law does not limit the number of licenses DABT may issue to businesses selling malt
beverages or wine. 2 However, the Beverage Law does limit the number of licenses that may be issued
that allow a business to sell any alcoholic beverage regardless of alcoholic content, including liquor or
distilled spirits. 3 This license, often referred to as a "quota license," is limited to one license per 7,500
residents in a county with a minimum of three licenses for each county that has approved the sale of
intoxicating liquors. 4
There are several exceptions to the quota license limitation. Businesses meeting the requirements of
the exceptions may be issued a special license by DABT allowing the business to serve any alcoholic
beverages regardless of alcoholic content. 5
Alcoholic Beverage Licenses in Lady Lake and Sumter County
DABT may grant special alcoholic beverage licenses to an entity operating an entertainment or lodging
complex within the commercial district of a retirement community in the Town of Lady Lake and in
certain areas of unincorporated Sumter County. 6 The authorization does not specify one particular
entity, but the described areas include two downtown squares owned by The Villages: Lake Sumter
Landings (in unincorporated Sumter County) and Spanish Springs (in the incorporated Town of Lady
Lake). 7 A 2014 revision deleted the term "unincorporated area" describing Sumter County in order to
encompass all areas of Sumter County. 8
The entertainment lodging complex seeking the special alcoholic beverage license must be managed,
controlled, and operated by a primary business entity under one business name and may include only
individual business entities that are owned, managed, controlled, and operated independently of the
primary business entity and that are separately licensed by the Division. 9 The entity may include one or
more restaurants, bars, breweries or brew pubs, clubhouses, recreation centers, lodging or banquet
facilities, special activity tents, or similar structures located within any area in which a restaurant or
lounge is a permitted use as defined by the Town of Lady Lake or Sumter County ordinances. 10 The
1
Chs. 561-565 and 567-568, F.S.
2
See ss. 563.02 and 564.02, F.S.
3
S. 561.20(1), F.S. Sees. 565.02(1)(a)-(f), F.S.
4
S. 561.20(1), F.S.
5
S. 561.20(2), F.S.
6
Ch. 2002-334, Laws of Fla., as amended.
7
See Florida House of Representatives, HB 605 Final Analysis, p. 2(May 15, 2014), http:l/leagis:8080/sites/2012-
2014/2014/Public/Bills/0600-0699/0605/Analysis/h0605z.LF AC.pdf (last visited Feb. 8, 2021 ).
8
Ch. 2014-229, s. 2, Laws of Fla.
9
Ch. 2002-334, Laws ofFla., as amended by 2014-229, s. 1, Laws ofFla.
IO Id.
STORAGE NAME: h0385b.RRS.DOCX PAGE: 2
DATE: 3/11/2021
licenses do not entitle the licensee to maintain or construct any structure on the premises that is
prohibited by the ordinances or regulations of the Town of Lady Lake or Sumter County .11
Effect of the Bill
The bill revises the authority of DABT to grant special alcoholic beverage licenses to an entity operating
an entertainment or lodging complex within the commercial district of a retirement community in the
Town of Lady Lake and in certain areas of unincorporated Sumter County, as follows:
• Revises one of the governmental entities that specified businesses within are eligible to receive
such licenses, by replacing the Town of Lady Lake with Lake County;
• Revises the boundaries within Lake and Sumter Counties to provide that a commercial district
of a retirement community may be issued a special alcoholic beverage license within
incorporated and unincorporated portions of both counties; and
• Revises the criteria for the alcoholic beverage licenses to provide that the licensee must adhere
to applicable county or municipal ordinances or regulations.
B. SECTION DIRECTORY:
Section 1: Amends ch. 2002-334, Laws of Florida, as amended, revising criteria for special
alcoholic beverage licenses for certain entities operating within Lake and Sumter
Counties; revising boundaries.
Section 2: Provides that the bill takes effect upon becoming a law.
II. NOTICE/REFERENDUM AND OTHER REQUIREMENTS
A. NOTICE PUBLISHED? Yes [X] No[]
IF YES, WHEN? December 22, 2020
WHERE? Daily Sun, a daily newspaper published in Lake County, Fl.
B. REFERENDUM(S) REQUIRED? Yes [] No [X]
IF YES, WHEN?
C. LOCAL BILL CERTIFICATION FILED? Yes [X] No[]
D. ECONOMIC IMPACT STATEMENT FILED? Yes [X] No[]
Ill. COMMENTS
A. CONSTITUTIONAL ISSUES:
None.
B. RULE-MAKING AUTHORITY:
The bill neither authorizes nor requires administrative rulemaking by executive branch agencies.
C. DRAFTING ISSUES OR OTHER COMMENTS:
II Id.
STORAGE NAME: h0385b.RRS.DOCX PAGE: 3
DATE: 3/11/2021
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On March 3, 2021, the Local Administration & Veterans Affairs Subcommittee adopted one technical
amendment and reported the bill favorably as a committee substitute. The amendment removes a term
previously deleted in 2014 that was included as a text deletion in the bill.
This analysis is drafted to the committee substitute as approved by the Local Administration & Veterans
Affairs Subcommittee.
STORAGE NAME: h03B5b.RRS.DOCX PAGE: 4
DATE: 3/11/2021
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 385 2021
1 A bill to be entitled
2 An act relating to alcoholic beverage licenses, Lake
3 and Sumter Counties; amending ch. 2002-334, Laws of
4 Florida, as amended; revising criteria for special
5 alcoholic beverage licenses for certain entities
6 operating within Lake and Sumter Counties; revising
7 boundaries; providing an effective date.
8
9 Be It Enacted by the Legislature of the State of Florida:
10
11 Section 1. Chapter 2002-334, Laws of Florida, as amended
12 by chapter 2014-229, Laws of Florida, is amended to read:
13 Section 1. (1) Any entity operating an entertainment or
14 lodging complex within the commercial district of a retirement
15 community within Lake County in the To·,m of Lady Lake may be
16 issued a special alcoholic beverage license by the Division of
17 Alcoholic Beverages and Tobacco of the Department of Business
18 and Professional Regulation permitting the sale of alcoholic
19 beverages, and the manufacture and sale of malt beverages, for
20 consumption on premises only. The complex, including the use of
21 areas or facilities pursuant to the authorization of a community
22 development district, must be managed, controlled, and operated
23 by a primary business entity under one business name and may
24 include only individual business entities that are owned,
25 managed, controlled, and operated independently of the primary
Page 1 of 7
CODING: Words strisken are deletions; words underlined are additions.
hb0385-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 385 2021
26 business entity and that are separately licensed by the Division
27 of Alcoholic Beverages and Tobacco pursuant to this act. The
28 complex must be located within the following boundaries of Lake
29 County the Town of Lady Lake:
30
31 That portion of Sections 6 and 7, Township 18 South,
32 Range 24 East, Town of Lady Lake, Florida, more
33 particularly described as Lots C, D, E, F, G, H, K, Y,
34 and Z, and Tracts 1 and 2, within THE VILLAGE CENTER
35 SUBDIVISION, according to the Plat thereof recorded in
36 Plat Book 33, Page 93, Public Records of Lake County,
37 Florida.
38
39 Portions of Township 20 South, Range 24 East including
40 portions of Sections 6-9, 16-17, 31 and portions of
41 Township 21 South, Range 24 East including portions of
42 Sections 5-7 .
43
44 These boundaries cneo.mpaso a contiguous area separated only by
45 deeded or dedicated rights of way.
46
47 (2) For purposes of this section, the term "entity
48 operating an entertainment or lodging complex within the
49 commercial district of a retirement community" means any entity
50 operating an entertainment or lodging complex that may include
Page 2 of 7
CODING: Words stricken are deletions; words underlined are additions.
hb0385-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 385 2021
51 one or more restaurants, bars, breweries or brew pubs,
52 clubhouses, recreation centers, lodging facilities, banquet
53 facilities, special activity tents, or similar structures or
54 meeting areas, or any combination thereof, consisting of any
55 real estate development located within the property described in
56 subsection (1) and located within any area in which a restaurant
57 or lounge is a permitted use as defined by applicable county or
58 municipal the Tmm of Lady Lake ordinances or regulations and
59 meeting the following criteria:
60 (a) A minimum of 15,000 visitors must annually visit the
61 commercial district of the retirement community.
62 (b) The complex must provide meeting facilities for at
63 least 250 persons.
64 (c) The complex must contain at least two restaurants or
65 lounges having at least 4,000 square feet of service area
66 equipped to serve full-course meals to 250 persons at one time.
67
68 For purposes of this section, the owner, operator, or
69 controlling entity need not be the same to qualify under
70 criteria listed in paragraphs (a), (b), and (c).
71 (3) The license authorized by this section shall not
72 entitle the licensee to maintain or construct any structure on
73 the premises that is prohibited by applicable county or
74 municipal 'HTe ordinances or regulations of the Town of Lady
75 ~ - This license shall not exempt the licensee from complying
Page 3 of 7
CODING: Words striskeA are deletions; words underlined are additions.
hb0385-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 385 2021
76 with applicable county or ,H:te municipal ordinances or
77 regulations of the To~m of Lady Lalce. All provisions of the
78 alcoholic beverage laws of the State of Florida not inconsistent
79 herewith shall apply to such license and licensee.
80 Section 2. (1) Any entity operating an entertainment or
81 lodging complex within the commercial district of a retirement
82 community within Sumter County may be issued a special alcoholic
83 beverage license by the Division of Alcoholic Beverages and
84 Tobacco of the Department of Business and Professional
85 Regulation permitting the sale of alcoholic beverages, and the
86 manufacture and sale of malt beverages, for consumption on
87 premises only. The complex, including the use of areas or
88 facilities pursuant to the authorization of a community
89 development district, must be managed, controlled, and operated
90 by a primary business entity under one business name and may
91 include only individual business entities that are owned,
92 managed, controlled, and operated independently of the primary
93 business entity and that are separately licensed by the Division
94 of Alcoholic Beverages and Tobacco pursuant to this act. The
95 complex must be located within the following boundaries of
96 Sumter County:
97
98 Portions of Township 18 South, Range 23 East including
99 port i ons of Sections 1 3-17, 21-28, and 33-36.
100
Page 4 of 7
CODING: Words striskeA are deletions; words underlined are additions.
hb0385-01-c 1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 385 2021
101 Portions of Township 19 South, Range 22 East including
102 portions of Section 36 and portions of Township 20
103 South, Range 22 Eas t inc l uding portions of Sections 1
104 & 12 and portions of Township 19 South, Range 23 East
105 including portions of Sections 1-4, 8 -14, 16-21, 23-
106 29, 31-36 and portions of Township 20 South, Range 23
107 East including portions of Secti ons 1-3, 6, 10-17, 20-
108 28, and 31-36 and portions of Township 21 South, Range
109 23 East including portions of Sections 1-11.
110
111 Po rtions of Township 19 South , Range 23 East including
112 portions of Sections 1 4 ' 8 14 , 16 17 , 23 24 , and
113 portions of TO',mship 18 South, Range 23 East including
114 portions oi Sections 13 17 , 2± 28 , and 33 36.
115
116 These boundaries encompass a contiguous area separated only by
117 deeded or dedicated rights-of-way.
118
119 (2) For purposes of this se ction , the term " entit y
120 operating an entertainment or lodging complex within the
121 commercial district of a retirement community" means any entity
122 operating an entertai nment or lodging complex that may include
1 23 one or mor e restaurants, bars , breweries or brew pubs,
124 clubhous es , recreation centers , lodging facilities , banqu et
125 facilities, special activity te nts, or simila r structures or
Page 5 of 7
CODING: Words stricken are deletions; words underlined are additions.
hb0385-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 385 2021
126 meeting areas, or any combination thereof, consisting of any
127 real estate development located within the property described in
128 subsection (1) and located wi thin any area in which a restaurant
129 or lounge is a permitted use as defined by applicable county or
130 munici pal Sumter County ordinances or regulations and meeting
131 the following criteria:
132 (a) A minimum of 15,000 visit ors must annually vi sit the
133 commercial district of the retirement community.
134 (b) The complex must provide meeting facilities for at
135 least 250 persons.
136 (c) The complex must contain at least two restaurants or
137 lounges having at least 4,000 square feet of service area
138 equipped to serve full-course meals to 250 persons at one time.
139
140 For purpo ses of t h is section, the o wne r, operator, or
141 controlling entity need not be the same to qualify under
142 criteria listed in paragraphs (a), (b), and (c).
143 (3) The license author i zed by t his section shal l not
144 ent itl e the li censee to maint ain or cons t ruct any st ructure on
145 t he premises that is prohibited by a ppl icabl e county or
146 municipal -t-fie. ordina nces or regulations of Sumter County. This
147 license s h a ll not exempt the lice ns ee f rom comp lying with
14 8 app l icabl e c ount y or muni cipa l -t-fie. ord inances o r regul a tions ~
149 Sumt er Count y. All provisions of t h e a lcoholi c beve r age laws of
150 the State of Fl orida not inconsistent he rewi t h shall apply to
Page 6 of 7
CODING: Words stricken are deletions; words underlined are additions.
hb0385-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 385 2021
151 such license and licensee.
152 Section 2. This act shall take effect upon becoming a law.
Page 7 of 7
CODING: Words striskoR are deletions; words underlined are additions.
hb0385-01-c1
-
(')
(/)
I
CD
-J
(.,J
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL#: CS/HB 473 Construction Liens and Bonds
SPONSOR(S): Civil Justice & Property Rights Subcommittee, Toledo and others
TIED BILLS: IDEN./SIM. BILLS: SB 622
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice & Property Rights Subcommittee 16Y, 1 N, AsCS Mawn Jones
2) Regulatory Reform Subcommittee Brackett Anstead
3) Judiciary Committee
SUMMARY ANALYSIS
A person who provides services, labor, or materials for improving, repairing, or maintaining real property
(except public property) may place a construction lien on the property if they are not paid for their services in
certain situations as long as they follow certain procedures set forth in ch. 713, F.S., Florida's Construction
Lien Law.
CS/HB 473:
• Modifies the notice of commencement and notice of nonpayment forms.
• Prohibits anyone from requiring a person to sign a waiver or release of lien or a waiver of right to claim
against a payment bond that is different from the statutory form in exchange for payment unless the
person is required to do so under a direct contract he or she signed.
• Provides that any provision in a waiver or release of lien or in a waiver of right to claim against a
payment bond that is not related to the waiver is unenforceable unless the party signing the waiver
agreed to such terms under a direct contract.
• Authorizes construction liens to be placed on private leasehold interests on public property.
• Allows general or building contractors providing construction or program management services to claim
construction liens for such services.
• Authorizes a lienor to record one claim of lien for services or materials provided under multiple direct
contracts under specified conditions.
• Requires an owner to serve a notice of termination on anyone not in privity with the owner who timely
served a notice to owner after the notice of termination was recorded.
• Changes when a notice of termination must be recorded and served, and when such notice is effective.
• Modifies service requirements for various notices and other documents required or authorized by the
construction lien law.
• Authorizes a subcontractor, laborer, or material supplier intending to make a claim against a payment
bond to serve the surety with a copy of the notice of nonpayment, instead of an original document.
• Specifies that the methods for discharging a lien may also be used to release a lien, in whole or in part.
• Modifies the requirements for recording a satisfaction of lien with the clerk's office.
• Entitles the prevailing party in an action to enforce a lien transferred to a security to recover reasonable
attorney fees and costs.
The bill does not appear to have a fiscal impact on state or local governments.
The bill provides an effective date of July 1, 2021.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0473b.RRS.DOCX
DATE: 3/15/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Florida law ensures that people working on construction projects are paid for their work. Any person
who provides services, labor, or materials for improving, repairing, or maintaining real property (except
public property) may place a construction lien 1 on the property, provided the person complies with
statutory procedures.2 These procedures require sending various written notices, demands, and other
instruments to the homeowner, contractor, subcontractor, lender, and building officials, including a:
• Notice of Commencement; 3
• Notice to Owner; 4
• Claim of Lien; 5
• Notice of Termination ;6
• Waiver or Release of Lien; 7
• Notice of Contest of Lien; 8
• Contractor's Final Payment Affidavit;9 and
• Demands of Written Statement of Account. 10
Notice of Commencement
Before construction begins, a property owner or the owner's authorized agent must generally file a
notice of commencement with the clerk of court in the county where the property is located.11 The
notice of commencement must also be posted at the construction site and filed with the building
department before the first inspection. 12 The notice of commencement determines the priority of
construction liens, provides details needed to fill out a notice to owner, establishes the date on which
the statute of limitations begins to run , and protects owners from double payments.13
Current law provides a statutory form for the notice of commencement, which notice must be
substantially similar to the form and contain information describing :
• The real property on which the improvement will be located;
• The improvement;
• The name and address of the owner and contractor;
• Information relating to a surety bond, 14 if a bond applies;
1 A lien is a claim against property that evidences a debt, obligation, or duty. Fla. Jur. 2d Liens§ 37: 1.
2 Ch. 713, F.S.
3 S. 713.13, F.S.
4 S. 713.06(2), F .S.
5
S. 713.08, F.S.
6
S. 713.132, F.S.
7 S. 713.20, F.S.
e S. 713.22(2), F.S.
9 S. 713.06(3), F.S.
10 S. 713.16, F.S.
11 S. 713.13(1)(a) , F.S.
12 Id.; S. 713.135(1 )(d) , F.S.
13 Stocking Building Supply of Florida, Inc. v. Soares Da Costa Construction Services, LLC, 76 So. 3d 313, 319 (Fla 3d DCA 2011 ); The
Florida Senate Committee on Regulated Industries, Review of the Florida Construction Lien Law, November 2007,
http://archive.flsenate.gov/data/Publications/2008/Senate/reports/lnterim reports/pdf/2008-149ri.pdf (last visited Mar. 1, 2021); Fred
Dudley, William A . Buzzett, & Deborah Kaveney Kearney, Construction Lien Law Reform: The Equilibrium of Change, 18 Fla. St. U. L.
Rev., 278 (1991).
14 A surety bond is a promise to be liable for another's debt, default, or failure. It is a three-party contract by which one party (the surety)
guarantees the performance or obligations of a second party (the principal) to a third party (the obligee). National Association of
Security Bond Providers, What are Surety Bonds, https://www.nasbp.org/getabond/about-
surety#:- :text=A%20surety%20bond%20is%20a.third%20party%20(the%20obligee) (last visited Mar. 1, 2021 ).
STORAGE NAME: h0473b.RRS.DOCX PAGE: 2
DATE: 3/ 15/2021
• Contact information for the project's lender;
• Contact information designated by the owner, upon whom notices may be served;
• The notice's expiration date; and
• A warning in uppercase type that the notice must be recorded, and that payments made after
the notice expires could be improper and lead to the owner paying twice.15
The notice of commencement must also include:
• The name and address of the owner or lessee if the lessee contracted for the work;
• The owner or lessee's interest in the property;
• A statement that the ownership interest is a leasehold interest if a lessee contracted for the
work;
• The name and address of the fee simple titleholder16 (if different from the owner); and
• Any person designated by the owner to receive a claim of lien. 17
Payment Bond
A payment bond is a type of surety bond that guarantees a contractor will pay all subcontractors,
laborers, and material suppliers for their work.18 It forms a three-part contract between the owner, the
contractor, and the surety to ensure that liens are not filed on the property, because the surety
guarantees that subcontractors, laborers, and material suppliers will be paid for their work or materials.
Current law requires contractors to obtain a payment bond for public projects over $100,000.19
Notice to Owner
To secure the right to claim a construction lien, a person working on a construction project who is not in
direct contract ("privity") with the owner (such as a subcontractor or a material supplier) must take
several additional steps, including serving a notice to owner20 in the statutory form provided. The notice
must include the person's name and address and the nature of the services or materials furn ished to
the owner's property. 21 The notice informs the owner that someone with whom he or she is not in privity
is providing services or materials on the property and that such person expects the owner to ensure he
or she is paid.22 The notice to owner must be served no later than 45 days after the person begins
furnishing labor, services, or materials. 23
Waiver or Release of Lien
Once the owner receives a notice to owner, he or she must obtain a waiver or release of lien from the
person who sent the notice before paying the contractor unless a payment bond applies. Otherwise, a
payment to the contractor may constitute an improper payment and the owner will be liable to the
person who sent the notice if the contractor does not pay him or her.24 A waiver or release of lien can
be a partial waiver or a final waiver for all of the person's services or materials.25 A person may not
waive or release his or her right to file a lien before doing work or providing materials, but a person may
waive or release the right to file a lien before receiving payment for his or her services or materials. 26
1s S. 713.13(1)(a), F.S.
16 Fee simple title is an interest in land that, being the broadest property interest allowed by law, endures until the current holder dies
without heirs. Black's Law Dictionary (11th ed. 2019).
17 S. 713.13(1)(d}, F.S.
18 S. 71 3.23, F.S.
19 S. 255.05(1)(d) , F.S.
20 A notice to owner is unnecessary when a payment bond applies. S. 713.06(2), F.S.
21 S. 713.06(2)(a), F.S.
22 Stocking Building Supply, 76 So. 3d at 317.
23 Id.
24 Id.; S. 713.06, F.S.
25
S. 713.20, F.S.
26 Id.
STORAGE NAME h0473b.RRS.D0CX PAGE: 3
DATE: 3/15/2021
Current law provides a statutory form for a waiver or release of lien but does not require that the waiver
or release of lien be in such form. 27 Current law also prohibits an owner from requiring a person to sign
a waiver or release of lien that is substantially different from the form but does not prohibit the inclusion
of additional provisions. 28 Failure to carefully inspect a waiver or release of lien before signing it may
result in inadvertently waiving or releasing all claims, damages, losses, or expenses. 29
Right to Claim Against a Payment Bond
Before paying a subcontractor, laborer, or material supplier, a contractor may request that such person
provide a waiver of right to claim against the payment bond. A waiver of right to claim against a
payment bond serves as a receipt acknowledging payment for services performed or materials
provided and waives the ability to seek payment from the surety.30
Current law provides a statutory form for a waiver of right to claim against a payment bond and
prohibits a contractor from requiring a person to sign a waiver that is substantially different from the
form. 31 However, parties are not required to use the statutory waiver form, and a waiver of right to claim
against a payment bond may include additional provisions.32 Failure to carefully inspect the document
before signing may result in waiving or releasing all claims, damages, losses, or expenses. 33
Extent of Lien
A construction lien extends to the right, title, and interest of the person who contracts for the
improvement to the extent such right, title, and interest exists at the improvement's commencement or
is acquired in the real property.34 However, when a lessee makes an improvement under an agreement
between the lessee and his or her lessor, the lien also extends to the lessor's interest. 35 If a lease
expressly provides that the lessor's interest will not be subject to the construction liens relating to
improvements made by the lessee, the lessee must notify the contractor making any such
improvements of the provision , and the knowing and willful failure of the lessee to provide such notice
renders the contract voidable at the contractor's option.36
A lessor's interest is not subject to construction liens for improvements made by a lessee when:
• The lease is recorded in the official records of the county where the property is located before
the recording of a notice of commencement for improvements to the property and the lease's
terms expressly prohibit such liability;
• The lease's terms expressly prohibit such liability, and a notice advising that leases for the
rental of premises on a property prohibit such liability has been recorded in the official records
of the county in which the property is located before the recording of a notice of commencement
for improvements to the premises and the notice includes specified information; or
• The lessee is a mobile home owner who is leasing a mobile home lot in a mobile home park. 37
21 Id.
2a Id.
29 Alex Benarroche, Florida's "Non-Required" Statutory Lien Waivers Can Lead to Confusion, https://www.levelset.com/blog/florida-
statutory-lien-waivers-lead-to-confusion/ (last visited Mar. 1, 2021); Craig Distel, Understanding waivers and releases for Florida
construction contractors, https://mcdonaldhopkins.com/lnsights/Blog/lndustrv-lnsights/2018/12/20/Understanding-waivers-and-releases-
for-Florida-construction-contractors (last visited Mar. 1, 2021).
30 Ss. 255.05(2) , and 713.235, F.S.
31 Id.
32 Id.
33 See Benarroche, supra note 27.
34 S. 713.10(1), F.S.
35 Id.
36
S. 713.10(2)(a), F.S.
37 S. 71 3.10(2)(b) , F.S.
STORAGE NAME: h0473b.RRS.D0 CX PAGE: 4
DATE: 3/15/2021
Claim of Lien
To record a construction lien on real property, a person must record a claim of lien with the clerk of
court in the county where the property is located and serve the owner with the claim of lien within 15
days of recording the lien. 38 If a claim of lien is not recorded, the lien is void to the extent that the failure
to record the claim prejudices any person entitled to rely on service of the claim of lien. 39
A person may file a claim of lien at any time during the progress of the work but may not file a claim of
lien later than 90 days after the person's final furnishing of labor or materials. 40 A person may record a
single claim of lien for multiple services or materials provided to different properties as long as such
services or materials were provided under the same contract, the person is in privity with the owner,
and the properties have the same owner.41 However, a person may not record a single claim of lien for
multiple services or materials if there is more than one contract, even if the contracts for services and
materials are with the same owner. 42
Licensed General and Building Contractors
Licensed construction contractors are either certified by or registered with the Construction Industry
Licensing Board ("GILB") within the Department of Business and Professional Regulation ("DBPR").
"Certified contractors" are persons who pass the state competency examination and obtain a certificate
of competency issued by DBPR. 43
Certified contractors can contract in any jurisdiction in the state without fulfilling the competency
requirements of the local jurisdiction. 44 "Registered contractors" are persons who have taken and
passed a competency examination administered by a local government and who have then registered
with DBPR. 45 Registered contractors can perform contracting only in the local jurisdiction where their
license is issued .46
Contractors, whether certified or registered, may be general contractors or building contractors . A
licensed "general contractor'' is a person who may contract for and perform any type of construction
service unless the work must be subcontracted to a licensed subcontractor. 47 A licensed "building
contractor'' is a person who may contract for and perform construction services for commercial and
residential buildings not exceeding three stories in height, or for any size building if the construction
does not affect the building 's structural frame, unless such work must be subcontracted to a licensed
subcontractor. 48
Construction and Program Management Services
A construction manager is responsible for the overall management of a construction project. 49 This
includes preconstruction planning, reviewing designs, estimating costs, determining the value of
different building products, project scheduling, contract negotiation, bid procedures, and coordination of
trade contractors and safety programs. 50 A program manager is "responsible for schedule control, cost
38 S. 713.08, F.S.
39
S. 713.08(4), F.S.
40
S. 713.08(5), F.S.
41 S. 713.09, F.S.
42 Id.; see also Lee v. All Florida Construction Co., 662 So. 2d 365, 366-67 (Fla . 5th DCA 1995).
43
S. 489.105(8), F.S.
44 Id.
45
S. 489.105(10), F.S.
46
S. 489.103, F.S.
47 Ss. 489.105(3), and 489.113, F.S.
4B Id.
49 The Florida Bar, Florida Construction Law Practice, Chapter 4: Rights and Liabilities of Construction Managers (9th ed . 2018) .
50 Id.
STORAGE NAME: h0473b.RRS.DOCX PAGE: 5
DATE : 3/15/2021
control, and coordination in providing or procuring planning, design, and construction services." 51 DBPR
does not regulate construction or program managers, and such managers are generally not required to
be licensed contractors, engineers, or architects if hired by a local government or private entity.
However, if a construction or program manager is performing any activity that otherwise requires a
professional license, he or she must have that specific license or employ someone with such license.52
Current law allows local governments to hire construction managers and program management entities
for construction projects. The construction manager is "responsible for construction project scheduling
and coordination in both preconstruction and construction phases and generally responsible for the
successful, timely, and economical completion of the construction project." 53 The program management
entity is "responsible for schedule control, cost control, and coordination in providing or procuring
planning, design, and construction services ." 54
Construction managers and program management entities hired by local governments are not required
to be a licensed contractor, engineer, or architect. However, if such persons or entities are not licensed,
they must hire a licensed professional to perform any job that does require a license. 55
Current law also allows the state to hire construction managers for construction projects. Construction
managers hired by the state must be licensed general or building contractors. The construction
manager "coordinates and supervises a construction project from the conceptual development stage
through final construction, including the scheduling, selection, contracting with, and directing of
specialty trade contractors, and the value engineering of a project." 56
Though the construction lien law allows any person who provides services, labor, or materials for
improving real property (except public property) to place a construction lien on the property, 57 it is
unclear if construction or program managers may do so because they do not necessarily provide labor,
services, or materials that improves real property. 58
Further, the lien law provides that a contractor may file a lien for any money owed to him or her for
labor, services, or materials 59 but defines a "contractor'' as any person other than a materialman or
laborer who contracts with an owner to improve the owner's real property.60 The definition also includes
a licensed architect or engineer who improve real property through a design-build contract61 but does
not include construction or program manager services.62 Some courts have determined that
construction or program managers may not file construction liens.63
Construction Liens for Private Leasehold Interests in Public Property
51
S. 255.103(3), F.S.
52 Id.
53
S. 255.103(2), F.S.
54
S. 255.103(3), F.S.
55 Id.
56
S. 255.32(1), F.S.
57 See, generally, ch. 713, F.S.
58
Scott Wolfe, Jr., Can Construction Managers File Mechanics Liens?, https://www.levelset.com/blog/can-construction-manaqers-file-
mechanics-liens/ (last visited Mar. 1, 2021).
59
S. 713.05, F.S .
60 S. 713.01(8), F.S.
61
S. 713.01(8), F.S.
62 Id.
63 See, e.g. , O'Kon and Company, Inc. v. Riedel, 540 So. 2d 836, 839-40 (Fla. 1st DCA 1988) ("Chapter 713, which provides for
professionals offering services to file a lien for services, does not include 'project managers."'); see also, e.g. , Medellin v. MLA
Consulting, Inc., 69 So. 3d 372 (Fla. 5th DCA 2011) (A person cannot file a construction lien for home construction consulting services
because it does not improve real property.); See also The Florida Bar supra note 47.
STORAGE NAME: h0473b.RRS.DOCX PAGE: 6
DATE: 3/15/2021
Although construction liens generally apply to the owner of the property improved, construction liens
may also apply in situations where the property owner's tenant has contracted for the improvement. 64
However, if a tenant contracts for real property improvements, the contractor is only able to file a lien
against the tenant's leasehold interest. A contractor cannot file a lien against the real property, unless
the tenant contracted for an improvement with the owner's agreement. 65
Construction liens may not be filed against publ ic property, but construction lien law is silent as to
whether such liens may be filed against the private leasehold interests of a tenant on public property.66
According to industry experts, construction liens are sometimes filed against private leasehold interests
on public property, such as when airlines and car rental agencies lease property within public airports.67
Notice of Termination
An owner may terminate a notice of commencement before it expires by recording a notice of
termination that includes:
• All the information in the notice of commencement;
• The notice of commencement's reference numbers from the official records of the clerk of court
and effective date;
• The date the notice of commencement is terminated, which may not be earlier than 30 days
after the notice of termination is recorded ;
• A statement that all persons who worked on the property have been paid in full ; and
• A statement that the owner has served a copy of the notice of termination to the contractor and
every person in privity with the owner who timely served a notice to owner. 68
An owner may record a notice of termination after:
• Completion of the construction project; or
• Work stops on the project and every person who worked on the property has been paid. 69
If the owner serves a copy of the notice of termination on every person in privity with the owner and
who served a notice to owner before the recording of the notice of termination , a notice of
commencement terminates 30 days after the notice of termination is recorded or on the termination
date stated in the notice, whichever is later. 70
Manner of Serving Documents
Documents authorized or required under the construction lien law, and notices to contractors for
payment bonds for public construction projects, must be served by:
• Actual delivery to the person being served ; if a partnership, to one partner; if a corporation, to
an officer, director, managing agent, or business agent; or if a limited liability company, to a
member or manager.
• Common carrier delivery service or by registered, Global Express Guaranteed, or certified mail ,
to the person being served with postage or shipping paid by the sender and with evidence of
delivery; or
• Posting on the construction site if service cannot be performed by the other two methods.71
64 Adam 8. Edgecombe, How do construction liens impact a commercial landlord in Florida?
https://www.jimersonfirm.com/blog/2019/05/how-construction-liens-impact-commercial-landlord/ (last visited Mar. 1, 2021 ).
65 S. 713.10, F.S.
66
See generally ch. 713, F.S.
67 H. Wesley, Property Interests Subject to Construction Liens in Florida, https://www.lorman.com/resources/property-interests-subject-
to-construction-liens-in-florida-17322 (last visited Mar. 1, 2021 ); 8 Fla. Prac., Constr. Law Manual § 8.3 (2019-2020 ed.).
68 S. 713.132(1), F.S.
69 S. 713.132(3), F.S.
10 S. 713.132(4), F.S.
7 1 S. 713.18(1), F.S.
STORAGE NAME: h0473b.RRS .D0CX PAGE : 7
DATE: 3/15/2021
Service of a document by common carrier delivery service or by registered , Global Express
Guaranteed, or certified mail is effective on the day the document is mailed, if it is:
• Sent to the last address shown in the notice of commencement or, in the absence of such a
notice, to the last address shown in the building permit application or to the last known address
of the person to be served; and
• Returned as being "refused," "moved, not forwardable," or "unclaimed," or is otherwise not
delivered or deliverable through no fault of the person serving the item. 72
However, for construction projects where there is a payment bond, a notice to contractor is effective on
the date of mailing if:
• The notice is mailed by registered, Global Express Guaranteed, or certified mail, with postage
prepaid, to the person to be served at the last address shown in the notice of commencement,
the last address shown in the building permit application, or the last known address of the
person being served;
• The notice is mailed within 40 days after the date the person first furnishes labor, services, or
materials; and
• The person who served the notice maintains a registered or certified mail log that shows:
o The mail number issued by the United States Postal Service ("USPS"), the name and
address of the person served, and the date stamp of the USPS confirming the date of
mailing ; or
o Maintains electronic tracking records generated by the USPS containing the tracking
number, the name and address of the person served, and verification of the date of
receipt by the USPS. 73
Current law also provides that service of a construction lien notice on one property owner or on one
partner of a partnership that owns a property is deemed to provide notice to all owners or partners.74
Notice to Contractor and Notice of Nonpayment
Under a payment bond , if the general contractor fails to pay a subcontractor, laborer, or material
supplier, such person may seek payment directly from the surety. In order to receive protection under a
payment bond for a public or private project, a subcontractor or material supplier75 not in privity with the
contractor must, within a certain time period 76 after commencing the furnishing of labor, services, or
materials for a construction project, serve the contractor with a written notice of intent to seek protection
under the bond. 77 A subcontractor, laborer, or material supplier not in privity with the contractor and
who has not received payment for furnishing labor, services, or materials must also serve a written
notice of nonpayment to the contractor and the surety. 78
Online Notarization
Many notices established under the construction lien law must be signed in the presence of a notary.79
The notary authenticates signatures and administers oaths on documents, thereby preventing fraud,
and also determines whether the person signing the document is who he or she claims to be. 80
72 S. 713.18(3), F.S.
73 S. 713.18(2), F.S.
74 S. 713.18, F.S.
75
Laborers are exempt from this requirement. Ss. 255.05(2)(a)2., 337 .18(1 )(c) , and 713.23(1 )(c), F .S.
76
Persons furnishing labor, services , or material for construction on public property or under service or maintenance contracts with the
Florida Department of Transportation have 90 days to furnish the notice to contractor, while all other persons have 45 days. Id.
77 Id.
78 Ss. 255.05(2)(a)2. and 713.23(1)(d) , F.S.
79 Ss. 255.05(2), 713.13(1)(d), and 713.23(d), F.S.
80
Florida Notary Association, Inc., Resources - How to Become a Notary, https://www.nnotary.com/requirements/ (last visited Mar. 1,
2021) .
STORAGE NAME: h0473b.RRS .D0CX PAGE: 8
DATE: 3/15/2021
In 2019, the Legislature authorized the use of online notaries.81 An online notary may perform an online
notarization, regardless of the physical location of the principal at the time of the notarial act, if the
notary:
• Is physically located in Florida; and
• Confirms that the principal desires for the notarial act to be performed by a Florida notary public
under Florida law. 82
However, the statutorily-created construction lien law notice and waiver forms have not been updated
to acknowledge that an on line notary may be used by the person signing the notice or waiver.83
Discharge of Liens
A construction lien may be discharged by:
• Entering satisfaction of the lien on the margin of the lien document recorded with the clerk's
office, if allowed by law;
• Filing satisfaction with the clerk's office;
• Failing to begin an action to enforce the lien within the statutorily-prescribed time frame;
• The circuit court of the county where the property is located issuing an order; or
• Recording in the clerk's office a court judgment or decree showing the action's final
determination.84
Attorney's Fees and Costs
The prevailing party in an action to enforce a lien or a claim against a payment bond is entitled to
recover his or her reasonable attorney fees and costs. 85
Effect of Proposed Changes
Notice of Commencement
CS/HB 473 modifies the statutorily-provided notice of commencement form to require both owner
information and lessee information, if applicable, and to reflect that the person signing the notice may
use an online notary.
Waiver or Release of Lien and Waiver of Right to Claim Against a Payment Bond
The bill provides that a person may not be required to sign a waiver or release of lien or a waiver of
right to claim against a payment bond that is different from the statutory forms in exchange for
payment, or to induce payment, unless the person signing the waiver entered into a direct contract
requiring him or her to do so.86 The bill also provides that any provision in a waiver or release of lien or
a waiver of right to claim against a payment bond that is unrelated to the waiver is unenforceable,
unless the person signing the waiver agreed to such terms in a direct contract.
Construction Liens for Private Leasehold Interests in Public Property
The bill amends the definition of "real property" to include private leasehold interests on public property,
thereby allowing a person to file a construction lien against such an interest.
Licensed General and Building Contractors and Construction Management Services
81
Ch. 2019-71, Laws ofFla.
02 S. 117.265(3), F.S.
83
See ch. 713, F.S.
84 S. 713.21, F.S.
85 S. 713.29, F.S.
86
This means that the party agreed to the terms firsthand.
STORAGE NAME: h0473b.RRS.DOCX PAGE: 9
DATE: 3/15/2021
The bill amends the construction lien law's definition of "contractor" to include any licensed general 87 or
building 88 contractor who provides construction or program management services. This gives licensed
general and building contractors who provide such services the ability to claim construction liens for
their services.
The bill provides that construction management services includes responsibility for scheduling and
coordination in both preconstruction and construction phases and for the successful, timely, and
economical completion of the construction project. The bill also provides that program management
services includes responsibility for schedule control, cost control, and coordination in providing or
procuring planning , design, and construction .
Claim of Lien
The bill authorizes a person to record a single claim of lien for services or materials provided under
multiple contracts and for multiple properties as long as the contracts are directly with the owner and
the owner is the same owner for all the contracts and properties.
Notice of Termination
The bill:
• Requires an owner to serve a copy of the notice of termination on any person who timely serves
a notice to owner after the notice of termination is recorded and to state in the notice that he or
she will do so.
• Deletes a provision allowing an owner to record a notice of termination after construction
completion or when construction ceases before completion, requiring instead that such notice
be recorded only after all lienors have been paid in full or pro rata as authorized by law.
• Clarifies that the notice of termination must include the date affixed to the notice of
commencement by the clerk of court.
Finally, the bill requires that a notice of termination be served before recording on each lienor in privity
with the owner and on each person who timely served a notice to owner before the recording of the
notice of termination. The notice must be recorded in the official records of the county in which the
improvement is located and, if properly served, the notice terminates the notice of commencement 30
days after the notice of termination is recorded . However, a notice of commencement is not terminated
as to any lienor not in privity with the owner who timely services a notice to owner after the notice of
termination is recorded until 30 days after such person is served with the notice of termination.
Manner of Serving Documents
The bill:
• Clarifies that "actual delivery" of a notice means "hand delivery."
• Clarifies that service of a notice sent through the mail is effective upon mailing or shipping.
Further, the bill deletes provisions allowing service to be made to an address contained in the building
permit application under specified conditions and modifies the remaining service provisions so that
service must, unless otherwise specifically provided by law, be made to the :
• Address contained in the notice of commencement or any amendment thereto; or
• In the absence of a properly indexed notice of commencement that contains the information
specified in s. 713.13(1)(b), F.S., to the last known address of the person to be served.
87 "Licensed general contractor" under the bill has the same meaning as in s. 489.105(3)(a), F.S.
88
"Licensed building contractor'' under the bill has the same meaning as ins. 489.105(3)(b), F.S.
STORAGE NAME: h0473b.RRS.D0CX PAGE : 10
DATE : 3/15/2021
Notice of Nonpayment
The bill provides that a subcontractor, laborer, or material supplier must still provide a notice of
nonpayment to the general contractor to receive protection under a payment bond but requires such
person to only provide a copy of the notice to the surety. The bill also modifies the statutory notice of
nonpayment form to reflect that the person signing the notice may use an online notary.
Discharge of Lien
The bill provides that the methods specified for discharging a lien may also be used to release a lien, in
whole or in part, and makes conforming changes. The bill also specifies that, if a satisfaction or release
is filed with the clerk's office, the satisfaction or release must include the lienor's notarized signature
and set forth the official reference numbers and recording date associated with the subject lien .
Attorney Fees and Costs
The bill provides that a prevailing party in an action to enforce a lien transferred to a security may
recover his or her reasonable attorney fees and costs .
The bill provides an effective date of July 1, 2021.
B. SECTION DIRECTORY:
Section 1: Amends s. 255.05, F.S., relating to bond of contractor constructing public buildings; form;
action by claimants .
Section 2: Amends s. 337.18, F.S., relating to surety bonds for construction or maintenance contracts;
requirement with respect to contract award; bond requirements; defaults; damage
assessments.
Section 3: Amends s. 713.01, F.S., relating to definitions.
Section 4: Amends s. 713.09, F.S., relating to single claim of lien.
Section 5: Amends s. 713.10, F.S. relating to extent of lien.
Section 6: Amends s. 713.13 , F.S., relating to notice of commencement.
Section 7: Amends s. 713.132, F.S., relating to notice of termination .
Section 8: Amends s. 713.18, F.S., relating to manner of serving notices and other instruments.
Section 9: Amends s. 713.20, F.S., relating to wavier or release of lien.
Section 10: Amends s. 713.21, F.S., relating to discharge of lien.
Section 11: Amends s. 713.23, F.S., relating to payment bond .
Section 12: Amends s. 713.235, F.S., relating to waivers of right to claim against payment bond;
forms.
Section 13: Amends s. 713.29, F.S., relating to attorney's fees.
Section 14: Provides an effective date of July 1, 2021.
11. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
STORAGE NAME h0473b.RRS.DOCX PAGE: 11
DATE: 3/15/2021
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may cause more subcontractors, laborers, and materialmen to receive compensation for their
work, which may have a positive indeterminate impact on the private sector.
D. FISCAL COMMENTS:
None.
Ill. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
Not applicable.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On March 4, 2021, the Civil Justice and Property Rights Subcommittee adopted one amendment and reported
the bill favorably as a committee substitute. The amendment:
• Restored to current law the provision:
o Specifying when an owner's payment under a construction contract constitutes an improper
payment, so that such payments are only improper if made after the notice of commencement
expires.
o Requiring service to be on a partner if a partnership; on an officer, director, managing agent, or
business agent if a corporation ; or on a member or manager if a limited liability company.
• Removed the option to serve documents required under the construction lien law to either the last
address shown in the notice of commencement or to the last known address of the person to be
served, providing that documents may only be served to the last known address in the absence of a
properly indexed notice of commencement.
This analysis is drafted to the committee substitute as passed by the Civil Justice and Property Rights
Subcommittee.
STORAGE NAME : h0473b.RRS .D0CX PAGE: 12
DATE: 3/15/2021
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
1 A bill to be entitled
2 An act relating to construction liens and bonds;
3 amending s. 255.05, F.S.; requiring that a copy of a
4 notice of nonpayment be served on the surety; revising
5 the process for notarizing a notice of nonpayment;
6 prohibiting a person from requiring a claimant to
7 furnish a certain waiver in exchange for or to induce
8 certain payments; providing that specified provisions
9 in certain waivers are unenforceable; providing an
10 exception; requiring service of documents to be made
11 in a specified manner; amending s. 337.18, F.S.;
12 providing that certain waivers apply to certain
13 contracts; requiring service of documents to be made
14 in a specified manner; amending s. 713.01, F.S.;
15 revising definitions; amending s. 713.09, F.S.;
16 authorizing a lienor to record one claim of lien for
17 multiple direct contracts; amending s. 713.10, F.S.;
18 revising the extent of certain liens; amending s.
19 713.13, F.S.; revising information to be included in a
20 notice of commencement; revising the process for
21 notarizing a notice of commencement; amending s.
22 713.132, F.S.; revising requirements for a notice of
23 termination; amending s. 713.18, F.S.; requiring
24 service of documents relating to construction bonds to
25 be made in a specified manner; making technical
Page 1 of 31
CODING: Words stricken are deletions; words underlined are additions.
hb04 73-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
26 changes; amending s. 713.20, F.S.; prohibiting a
27 person from requiring a lienor to furnish a certain
28 waiver or release in exchange for or to induce certain
29 payments; providing that specified provisions in
30 certain waivers or releases are unenforceable;
31 providing an exception; amending s. 713.21, F.S.;
32 authorizing the full or partial release of a lien
33 under specified conditions; amending s. 713.23, F.S.;
34 requiring that a copy of a notice of nonpayment be
35 served on the surety; revising the process for
36 notarizing a notice of nonpayment under a payment
37 bond; amending s. 713.235, F.S.; prohibiting a person
38 from requiring a lienor to furnish a certain waiver or
39 release in exchange for or to induce certain payments;
40 providing that specified provisions in certain waivers
41 or releases are unenforceable; providing an exception;
42 amending s. 713.29, F.S.; authorizing attorney fees in
43 actions to enforce a lien that has been transferred to
44 security; providing an effective date.
45
46 Be It Enacted by the Legislature of the State of Florida:
47
48 Section 1. Paragraphs (a), (d), and (f) of subsection (2)
49 of section 255.05, Florida Statutes, are amended, and subsection
50 (12) is added to that section, to read:
Page 2 of 31
CODING: Words stricken are deletions; words underlined are additions.
hb0473-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
51 255.05 Bond of contractor constructing public buildings;
52 form; action by claimants.-
53 ( 2) (a) 1. If a claimant is no longer furnishing labor,
54 services, or materials on a project, a contractor or the
55 contractor's agent or attorney may elect to shorten the time
56 within which an action to enforce any claim against a payment
57 bond must be commenced by recording in the clerk's office a
58 notice in substantially the following form:
59
60 NOTICE OF CONTEST OF CLAIM
61 AGAINST PAYMENT BOND
62
63 To: ... (Name and address of claimant) . ..
64
65 You are notified that the undersigned contests your notice
66 of nonpayment, dated .... . ...... . , .. . ..... , and served on the
67 undersigned on . . . . . . . . .... , . . . . . . . . , and that the time within
68 which you may file suit to enforce your claim is limited to 60
69 days after the date of service of this notice.
70
71 DATED on . . . . . . . . . . . . ,
72
73 Signed: ... (Contractor or Attorney) .. .
74
75 The claim of a claimant upon whom such notice is served and who
Page 3 of 31
CODING: Words strioken are deletions; words underlined are additions.
hb04 73-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
76 fails to institute a suit to enforce his or her claim against
77 the payment bond within 60 days after service of such notice is
78 extinguished automatically. The contractor or the contractor's
79 attorney shall serve a copy of the notice of contest on 4:-e the
80 claimant at the address shown in the notice of nonpayment or
81 most recent amendment thereto and shall certify to such service
82 on the face of the notice and record the notice.
83 2. A claimant, except a laborer, who is not in privity
84 with the contractor shall, before commencing or not later than
85 45 days after commencing to furnish labor, services, or
86 materials for the prosecution of the work, serve the contractor
87 with a written notice that he or she intends to look to the bond
88 for protection. A claimant who is not in privity with the
89 contractor and who has not received payment for furnishing his
90 or her labor, services, or materials shall serve a written
91 notice of nonpayment on the contractor and a copy of the notice
92 on the surety. The notice of nonpayment shall be under oath and
93 served during the progress of the work or thereafter but may not
94 be served earlier than 45 days after the first furnishing of
95 labor, services, or materials by the claimant or later than 90
96 days after the final furnishing of the labor, services, or
97 materials by the claimant or, with respect to rental equipment,
98 later than 90 days after the date that the rental equipment was
99 last on the job site available for use. Any notice of nonpayment
100 served by a claimant who is not in privity with the contractor
Page 4 of 31
CODING: Words strisken are deletions; words underlined are additions.
hb04 73-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
101 which includes sums for retainage must specify the portion of
102 the amount claimed for retainage. An action for the labor,
103 services, or materials may not be instituted against the
104 contractor or the surety unless the notice to the contractor and
105 notice of nonpayment have been served, if required by this
106 section. Notices required or permitted under this section must
107 be served in accordance withs. 713.18. A claimant may not waive
108 in advance his or her right to bring an action under the bond
109 against the surety. In any action brought to enforce a claim
110 against a payment bond under this section, the prevailing party
111 is entitled to recover a reasonable fee for the services of his
112 or her attorney for trial and appeal or for arbitration, in an
113 amount to be determined by the court, which fee must be taxed as
114 part of the prevailing party's costs, as allowed in equitable
115 actions. The time periods for service of a notice of nonpayment
116 or for bringing an action against a contractor or a surety are
117 shall be measured from the last day of furnishing labor,
118 services, or materials by the claimant and may not be measured
119 by other standards, such as the issuance of a certificate of
120 occupancy or the issuance of a certificate of substantial
121 completion. The negligent inclusion or omission of any
122 information in the notice of nonpayment that has not prejudiced
123 the contractor or surety does not constitute a default that
124 operates to defeat an otherwise valid bond claim. A claimant who
125 serves a fraudulent notice of nonpayment forfeits his or her
Page 5 of 31
CODING: Words stricken are deletions; words underlined are additions.
hb0473-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
126 rights under the bond. A notice of nonpayment is fraudulent if
127 the claimant has willfully exaggerated the amount unpaid,
128 willfully included a claim for work not performed or materials
129 not furnished for the subject improvement, or prepared the
130 notice with such willful and gross negligence as to amount to a
131 willful exaggeration. However, a minor mistake or error in a
132 notice of nonpayment, or a good faith dispute as to the amount
133 unpaid, does not constitute a willful exaggeration that operates
134 to defeat an otherwise valid claim against the bond. The service
135 of a fraudulent notice of nonpayment is a complete defense to
136 the claimant's claim against the bond. The notice of nonpayment
137 under this subparagraph must include the following information,
138 current as of the date of the notice, and must be in
139 substantially the following form:
140
141 NOTICE OF NONPAYMENT
142
143 To: ... (name of contractor and address) ...
144
145 ... (name of surety and address) ...
146
147 The undersigned claimant notifies you that:
148 1. Claimant has furnished ... (describe labor, services, or
149 materials) ... for the improvement of the real property
150 identified as ... (property description) .... The corresponding
Page 6 of 31
CODING: Words striskeA are deletions; words underlined are additions.
hb04 73-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
151 amount unpaid to date is$ .... , of which$ .... is unpaid
152 retainage.
153 2. Claimant has been paid to date the amount of$ .... for
154 previously furnishing ... (describe labor, services, or
155 materials) ... for this improvement.
156 3. Claimant expects to furnish ... (describe labor,
157 services, or materials) ... for this improvement in the future
158 (if known), and the corresponding amount expected to become due
159 is $.... (if known).
160
161 I declare that I have read the foregoing Notice of Nonpayment
162 and that the facts stated in it are true to the best of my
163 knowledge and belief.
164
165 DATED on . .. .... . .... ,
166
167 ... (signature and address of claimant) ...
168
169 STATE OF FLORIDA
170 COUNTY OF .. . .... .
171
172 The foregoing instrument was sworn to (or affirmed) and
F73 subscribed before me by means of Ophysical presence or sworn to
174 (or affirmed) by D online notarization this . . .. day of .... ,
175 ... (year) ... , by ... (name of signatory) ....
Page 7 of 31
CODING: Words strisken are deletions; words underlined are additions.
hb0473-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
176
177 ... (Signature of Notary Public - State of Florida) ...
178 ... (Print, Type, or Stamp Commissioned Name of Notary
179 Public) ...
180
181 Personally Known . . ...... OR Produced Identification .. . ... . .
182
183 Type of Identification Produced
184
185 (d) A person may not require a claimant to furnish a
186 waiver that is different from the forms in paragraphs (b) and
187 (c) in exchange for, or to induce payment of, a progress payment
188 or final payment unless the claimant has entered into a direct
189 contract that requires the claimant to furnish a waiver that is
190 different from the forms in paragraphs (b) and (c).
191 (f) Any provisions in a waiver which are that is not
192 related to the waiver of a claim or a right to claim against a
193 payment bond as provided in this subsection are unenforceable,
194 unless the claimant has otherwise agreed to those provisions in
195 the direct contract substantially similar to the forms in this
196 subsection is enforceable in accordanec r.:ith its terms .
197 (12) Unless otherwise provided in this section, service of
198 any document must be made in accordance withs . 713.18.
199 Section 2. Paragraph (c) of subsection (1) of section
200 337.18, Florida Statutes, is amended, and subsection (6) is
Page 8 of 31
CODING: Words stricken are deletions; words underlined are additions.
hb0473-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
201 added to that section, to read:
202 337.18 Surety bonds for construction or maintenance
203 contracts; requirement with respect to contract award; bond
204 requirements; defaults; damage assessments.-
205 ( 1)
206 (c) A claimant, except a laborer, who is not in privity
207 with the contractor shall, before commencing or not later than
208 90 days after commencing to furnish labor, materials, or
209 supplies for the prosecution of the work, furnish the contractor
210 with a notice that he or she intends to look to the bond for
211 protection. A claimant who is not in privity with the contractor
212 and who has not received payment for his or her labor,
213 materials, or supplies shall deliver to the contractor and to
214 the surety written notice of the performance of the labor or
215 delivery of the materials or supplies and of the nonpayment. The
216 notice of nonpayment may be served at any time during the
217 progress of the work or thereafter but not before 45 days after
218 the first furnishing of labor, services, or materials, and not
219 later than 90 days after the final furnishing of the labor,
220 services, or materials by the claimant or, with respect to
221 rental equipment, not later than 90 days after the date that the
222 rental equipment was last on the job site available for use. An
223 action by a claimant, except a laborer, who is not in privity
224 with the contractor for the labor, materials, or supplies may
225 not be instituted against the contractor or the surety unless
Page 9 of 31
CODING: Words stricken are deletions; words underlined are additions.
hb0473-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
226 both notices have been given. Written notices required or
227 permitted under this section must may be served in accordance
228 with any manner prov ided ins. 713.18, and provisions for the
229 waiver of a claim or a right to claim against a payment bond
230 contained ins. 713.235 apply to all contracts under this
231 section.
232 (6) Unless otherwise provided in this section, service of
233 any document must be made in accordance withs. 713.18.
234 Section 3. Subsections ( 4) , ( 8) , and ( 2 6) of section
235 713.01, Florida Statutes, are amended to read:
236 713.01 Definitions.-As used in this part, the term:
237 ( 4) "Clerk's office" means the office of the clerk of the
238 circuit court of the county, or another office serving as the
239 county recorder as provided by law, in which the real property
240 is located.
241 ( 8) "Contractor" means a person other than a materialman
242 or laborer who enters into a contract with the owner of real
243 property for improving it, or who takes over from a contractor
244 as so defined the entire remaining work under such contract. The
245 term "contractor" includes an architect, landscape architect, or
246 engineer who improves real property pursuant to a design-build
247 contract authorized bys. 489.103(16). The term also includes a
248 licensed general contractor or building contractor, as those
249 terms are defined ins. 489.105(3) (a) and (b), respectively, who
250 provides construction management services, which include
Page 10 of 31
CODING: Words stricken are deletions; words underlined are additions.
hb04 73-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
251 responsibility for scheduling and coordination in both
252 preconstruction and construction phases and for the successful,
253 timely, and economical completion of the construction project,
254 or who provides program management services, which include
255 responsibility for schedule control, cost control, and
256 coordination in providing or procuring planning, design, and
257 construction.
258 (26) "Real property" means the land that is improved and
259 the improvements thereon, including fixtures, except any such
260 property owned by the state or any county, municipality, school
261 board, or governmental agency, commission, or political
262 subdivision. The term includes a private leasehold interest that
263 is improved, and the improvements thereon, on land that is owned
264 by the state or any county, municipality, school board, or
265 governmental agency, commission, or political subdivision.
266 Section 4. Section 713.09, Florida Statutes, is amended to
267 read:
268 713.09 Single claim of lien.-A lienor may is required to
269 record only one claim of lien covering his or her entire demand
270 against the real property when the amount demanded is for labor
271 or services or material furnished for more than one improvement
272 under the same direct contract or multiple direct contracts. The
273 single claim of lien is sufficient even though the improvement
274 is for one or more improvements located on separate lots,
275 parcels, or tracts of land. If materials to be used on one or
Page 11 of 31
CODING: Words stricken are deletions; words underlined are additions.
hb0473-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HS 473 2021
276 more improvements on separate lots, parcels, or tracts of land
277 under one direct contract are delivered by a lienor to a place
278 designated by the person with whom the materialman contracted,
279 other than the site of the improvement, the delivery to the
280 place designated is prima facie evidence of delivery to the site
281 of the improvement and incorporation in the improvement. The
282 single claim of lien may be limited to a part of multiple lots,
283 parcels, or tracts of land and their improvements or may cover
284 all of the lots, parcels, or tracts of land and improvements. If
285 ~ In each claim of lien under this section is for multiple
286 direct contracts, the owner under the direct contracts contract
287 must be the same person for all lots, parcels, or tracts of land
288 against which a single claim of lien is recorded.
289 Section 5. Paragraph (b) of subsection (2) of section
290 713.10, Florida Statutes, is amended, and subsection (4) is
291 added to that section, to read:
292 713.10 Extent of liens.-
293 (2)
294 (b) The interest of the lessor is not subject to liens for
295 improvements made by the lessee when:
296 1. The lease, or a short form or a memorandum of the lease
297 that contains the specific language in the lease prohibiting
298 such liability, is recorded in the official records of the
299 county where the premises are located before the recording of a
300 notice of commencement for improvements to the premises and the
Page 12 of 31
CODING: Words strisken are deletions; words underlined are additions.
hb04 73-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
301 terms of the lease expressly prohibit such liability; or
302 2. The terms of the lease expressly prohibit such
303 liability, and a notice advising that leases for the rental of
304 premises on a parcel of land prohibit such liability has been
305 recorded in the official records of the county in which the
306 parcel of land is located before the recording of a notice of
307 commencement for improvements to the premises, and the notice
308 includes the following:
309 a. The name of the lessor.
310 b. The legal description of the parcel of land to which
311 the notice applies.
312 c. The specific language contained in the various leases
313 prohibiting such liability.
314 d. A statement that all or a majority of the leases
315 entered into for premises on the parcel of land expressly
316 prohibit such liability.
317 3. The lessee is a FRObilc home mmcr who is leasing a
318 mobile home lot in a mobile home parlc from the lessor .
319
320 A notice that is consistent with subparagraph 2. effectively
321 prohibits liens for improvements made by a lessee even if other
322 leases for premises on the parcel do not expressly prohibit
323 liens or if provisions of each lease restricting the application
324 of liens are not identical.
325 (4) The interest of the lessor is not subject to liens for
Page 13 of 31
CODING: Words stricken are deletions; words underlined are additions.
hb0473-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
326 improvements made by the lessee when the lessee is a mobile home
327 owner who is leasing a mobile home lot in a mobile home park
328 from the lessor.
329 Section 6. Paragraphs ( a) , ( c) , and ( d) of subsection ( 1)
330 of section 713.13, Florida Statutes, are amended to read:
331 713.13 Notice of commencement.-
332 (1) (a) Except for an improvement that is exempt under
333 pursuant to s. 713.02(5), an owner or the owner's authorized
334 agent before actually commencing to improve any real property,
335 or recommencing completion of any improvement after default or
336 abandonment, whether or not a project has a payment bond
337 complying withs. 713.23, shall record a notice of commencement
338 in the clerk's office and forthwith post either a certified copy
339 thereof or a notarized statement that the notice of commencement
340 has been filed for recording along with a copy thereof. The
341 notice of commencement shall contain the following information:
342 1. A description sufficient for identification of the real
343 property to be improved. The description should include the
344 legal description of the property and also should include the
345 street address and tax folio number of the property if available
346 or, if there is no street address available, such additional
347 information as will describe the physical location of the real
348 property to be improved.
349 2. A general description of the improvement.
350 3. The name and address of the owner, the owner's interest
Page 14 of 31
CODING: Words strioken are deletions; words underlined are additions.
hb0473-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
351 in the site of the improvement, and the name and address of the
352 fee simple titleholder, if other than such owner.
353 4. The name and address of the lessee, if the A lessee Wfte-
354 contracts for the improvements as ±-s- an owner as defined ins.
355 713.01 uflder s. 713.01(23) and must be listed as the owner
356 together ·,:ith a statement that the mmership interest is a
357 leasehold interest.
358 5.4.- The name and address of the contractor.
359 6 . .§.. The name and address of the surety on the payment
360 bond under s. 713.23, if any, and the amount of such bond.
361 7 . .fr-.- The name and address of any person making a loan for
362 the construction of the improvements.
363 8.+.- The name and address within the state of a person
364 other than himself or herself who may be designated by the owner
365 as the person upon whom notices or other documents may be served
366 under this part; and service upon the person so designated
367 constitutes service upon the owner.
368 (c) If the contract between the owner and a contractor
369 named in the notice of commencement expresses a period of time
370 for completion for the construction of the improvement greater
371 than 1 year, the notice of commencement must state that it is
372 effective for a period of 1 year plus any additional period of
373 time. Any payments made by the owner after the expiration of the
374 notice of commencement are considered improper payments.
375 (d) A notice of commencement must be in substantially the
Page 15 of 31
CODING: Words stricken are deletions; words underlined are additions.
hb04 73-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
376 following form:
377
378 Permit No ..... Tax Folio No .....
379 NOTICE OF COMMENCEMENT
380 State of ... .
381 County of ... .
382
383 The undersigned hereby gives notice that improvement will be
384 made to certain real property, and in accordance with Chapter
385 713, Florida Statutes, the following information is provided in
386 this Notice of Commencement.
387 1. Description of property: ... (legal description of the
388 property, and street address if available) ... .
389 2. General description of improvement: .... .
390 3.a. Owner: ... name and address ....
391 b. Owner's phone number: .... Owner information or Lessee
392 information if the Lessee eontracted for the improvement :
393 a. Name and address: .....
394 c.£l.- Interest in property: .....
395 d.e.- Name and address of fee simple titleholder (if
396 different from Owner listed above): .....
397 4.a. Lessee, if the lessee contracted for the improvement:
398 ... (name and address) ....
399 b. Lessee's phone number: ..... -a-:-
400 5.a. Contractor: ... (name and address) ....
Page 16 of 31
CODING: Words stricken are deletions; words underlined are additions.
hb0473-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
401 b. Contractor's phone number: .....
402 6 . .§... Surety (if applicable, a copy of the payment bond is
403 attached):
404 a. Name and address: .... .
405 b. Phone number: .... .
406 c. Amount of bond: $ . . . . .
407 7.a.~ Lender: ... (name and address) ....
408 b. Lender's phone number: .....
409 8.-=7-. Persons within the State of Florida designated by
410 Owner upon whom notices or other documents may be served as
411 provided by Section 713.13(1) (a)8. 713.13(1) (a)7., Florida
412 Statutes:
413 a. Name and address: .....
414 b. Phone numbers of designated persons: .....
415 9.a.~ In addition to himself or herself, Owner
416 designates . . . . . . . . . . . . of . . . . . . . . . . . . to receive a copy of the
417 Lienor's Notice as provided in Section 713.13(1) (b), Florida
418 Statutes.
419 b. Phone number of person or entity designated by
420 owner: .....
421 10.-9.- Expiration date of notice of commencement (the
422 expiration date will be 1 year after -H:'-effl the date of recording
423 unless a different date is specified) .....
424
425 WARNING TO OWNER: ANY PAYMENTS MADE BY THE OWNER AFTER THE
Page 17 of 31
CODING: Words stricken are deletions; words underlined are additions.
hb04 73-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
426 EXPIRATION OF THE NOTICE OF COMMENCEMENT ARE CONSIDERED IMPROPER
427 PAYMENTS UNDER CHAPTER 713, PART I, SECTION 713.13, FLORIDA
428 STATUTES, AND CAN RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS
429 TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST BE RECORDED AND
430 POSTED ON THE JOB SITE BEFORE THE FIRST INSPECTION. IF YOU
431 INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR AN
432 ATTORNEY BEFORE COMMENCING WORK OR RECORDING YOUR NOTICE OF
433 COMMENCEMENT.
434
435 ... (Signature of Owner or Lessee, or Owner's or Lessee's
436 Authorized Officer/Director/Partner/Manager) ...
437
438 ... (Signatory's Title/Office) ...
439
440 The foregoing instrument was acknowledged before me by means of
441 Ophysical presence or acknowledged before me by means of D
4 42 online notarization , t h is . . . . day of .... , ... (year) ... , by
443 ... (name of person) ... as ... (type of authority, . . . e.g.
444 officer, trustee, attorney in fact) ... for ... (name of party on
445 behalf of whom instrument was executed) ....
446
447 ... (Signature of Notary Public - State of Florida) ...
448
449 ... (Print, Type, or Stamp Commissioned Name of Notary Public) ...
450
Page 18 of 31
CODING: Words striokeR are deletions; words underlined are additions.
hb04 73-01-c1
FLORIDA H O V S E 0 F REPRESENTATIVES
CS/HB 473 2021
451 Personally Known .... OR Produced Identification ....
452
453 Type of Identification Produced ........... .
454 Section 7. Subsections ( 1) , ( 3) , and ( 4) of section
455 713.132, Florida Statutes, are amended to read:
456 713.132 Notice of termination.-
457 (1) An owner may terminate the period of effectiveness of
458 a notice of commencement by executing, swearing to, and
459 recording a notice of termination that contains:
460 (a) The same information as the notice of commencement;
461 (b) The official records' recording office document book
4 62 and page reference numbers and recording date affixed by the
4 63 recording office on~ the recorded notice of commencement;
464 (c} A statement of the date as of which the notice of
465 commencement is terminated, which date may not be earlier than
466 30 days after the notice of termination is recorded;
467 (d) A statement specifying that the notice applies to all
4 68 the real property subject to the notice of commencement or
469 specifying the portion of such real property to which it
470 applies;
471 (e) A statement that all lienors have been paid in full;
472 and
473 (f} A statement that the owner has, before recording the
474 notice of termination, served a copy of the notice of
475 termination on the contractor and on each lienor who has a
Page 19 of 31
CODING: Words striskeA are deletions; words underlined are additions.
hb0473-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
476 direct contract with the owner or who has timely served a notice
477 to owner 1 and a statement that the owner will serve a copy of
478 the notice of termination on each lienor who timely serves a
479 notice to owner after the notice of termination has been
480 recorded. The owner is not required to serve a copy of the
481 notice of termination on any lienor who has executed a waiver
482 and release of lien upon final payment in accordance withs.
483 713.20.
484 (3) An owner may fte4:- record a notice of termination at any
485 time after e>tcept after completion of construction , or after
486 construction ceases before completion and all lienors have been
487 paid in full or pro rata in accordance withs. 713.06(4).
488 ill If an owner or a contractor, by fraud or collusion,
489 knowingly makes any fraudulent statement or affidavit in a
490 notice of termination or any accompanying affidavit, the owner
491 and the contractor, or either of them, as the ease may be , is
492 liable to any lienor who suffers damages as a result of the
493 filing of the fraudulent notice of termination~T and any such
494 lienor has a right of action for damages occasioned thereby.
495 ~-f-4+ A notice of termination must be served before
496 recording on each lienor who has a direct contract with the
497 owner and on each lienor who has timely and properly served a
498 notice to owner in accordance with this part before the
499 recording of the notice of termination. A notice of termination
500 must be recorded in the official records of the county in which
Page 20 of 31
CODING: Words striokon are deletions; words underlined are additions.
hb0473-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
501 the improvement is located. If properly served before recording
502 in accordance with this subsection, the notice of termination
503 terminates the period of effectiveness of the notice of
504 commencement 30 days after the notice of termination is recorded
505 in the official records is effective to terminate the notice of
506 commencement at the later of 30 days after recording of tho
507 notice of termination or a later -t-h-e date stated in the notice
508 of termination as the date on which the notice of commencement
509 is terminated. However, if a lienor who began work under the
510 notice of commencement before its termination lacks a direct
511 contract with the owner and timely serves his or her notice to
512 owner after the notice of termination has been recorded, the
513 owner must serve a copy of the notice of termination upon such
514 lienor, and the termination of the notice of commencement as to
515 that lienor is effective 30 days after service of the notice of
516 termination if the notice of termination has been served
517 pursuant to paragraph (1) (f) on the contractor and on each
518 lienor ·..·ho has a direct contract wit_h the owner or who has
519 served a notice to owner.
520 Section 8. Section 713.18, Florida Statutes, is amended to
521 read:
522 713.18 Manner of serving documents notices and other
523 instruments.-
524 (1) Unless otherwise specifically provided by law, service
525 of any document notices, claims of lien , affidavits ,
Page 21 of 31
CODING: Words stricken are deletions; words underlined are additions.
hb04 73-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
526 assigruaents, and other instruments permitted or required under
527 this part, s. 255.05, ors. 337.18, or copies thereof when so
528 permitted or required, unless otherwise specifically provided in
529 this part, must be made by one of the following methods:
530 (a) By hand actual delivery to the person to be served; if
531 a partnership, to one of the partners; if a corporation, to an
532 officer, director, managing agent, or business agent; or, if a
533 limited liability company, to a member or manager.
534 (b) By common carrier delivery service or by registered,
535 Global Express Guaranteed, or certified mail to the person to be
536 served, with postage or shipping paid by the sender and with
537 evidence of delivery, which may be in an electronic format.
538 (c) By posting on the site of the improvement if service
539 as provided by paragraph (a) or paragraph (b) cannot be
540 accomplished.
541 (2) Notwithstanding subsection (1), service of a notice to
542 owner or a preliminary notice to contractor under this part, s.
543 255.05, ors. 337.18, ors. 713.23 is effective as of the date
544 of mailing and the requirements for service under this section
545 have been satisfied if:
546 (a) The notice is mailed by registered, Global Express
547 Guaranteed, or certified mail, with postage prepaid, to the
548 person to be served and addressed as prescribed at any of the
549 addresses set forth in subsection (3);
550 (b) The notice is mailed within 40 days after the date the
Page 22 of 31
CODING: Words stricken are deletions; words underllned are additions.
hb0473-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
551 lienor first furnishes labor, services, or materials; and
552 (c)l. The person who served the notice maintains a
553 registered or certified mail log that shows the registered or
554 certified mail number issued by the United States Postal
555 Service, the name and address of the person served, and the date
556 stamp of the United States Postal Service confirming the date of
557 mailing; or
558 2. The person who served the notice maintains electronic
559 tracking records approved or generated by the United States
560 Postal Service containing the postal tracking number, the name
561 and address of the person served , and verification of the date
562 of receipt by the United States Postal Service.
563 ( 3) (a) Notwithstanding subsection ( 1) , service of a
564 document under an instrument pursuant to this section is
565 effective on the date of mailing or shipping, and the
566 requirements for service under this section have been satisfied,
567 the instr~ment if the document 4-t-:
568 1. Is sent to the last address shown in the notice of
569 commencement or any amendment thereto or, in the absence of a
570 properly indexed notice of commencement that contains the
571 information specified in s. 713 .13 ( 1) (b), notice of
572 coffifl'ceneement, to the last address shown in the buildir.g pent1:it
573 application, or to the last known address of the person to be
574 served unless otherwise specifically provided in this part, s .
575 255.05, ors. 337.18; and
Page 23 of 31
CODING: Words stricken are deletions; words underlined are additions.
hb04 73-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
576 2. Is returned as being "refused," "moved, not
577 forwardable," or "unclaimed," or is otherwise not delivered or
578 deliverable through no fault of the person serving the document
579 tteffi.
580 (b) If the address shown in the notice of commencement or
581 any amendment thereto to the notice of cofflfflencement, or, in the
582 absence of a notice of commencement, in the building permit
583 application, is incomplete for purposes of mailing or delivery,
584 the person serving the document tteffi may complete the address
585 and properly format it according to United States Postal Service
586 addressing standards using information obtained from the
587 property appraiser or another public record without affecting
588 the validity of service under this section.
589 (4) A document notice served by a lienor on one owner or
590 one partner of a partnership owning the real property is deemed
591 served on notice to all owners and partners.
592 Section 9. Subsections (6) and (8) of section 713.20,
593 Florida Statutes, are amended to read:
594 713.20 Waiver or release of liens.-
595 (6) A person may not require a lienor to furnish a lien
596 waiver or release of lien that is different from the forms in
597 subsection (4) or subsection (5) in exchange for, or to induce
598 payment of, a progress payment or final payment unless the
599 lienor has entered into a direct contract that requires the
600 lienor to furnish a waiver or release that is different from the
Page 24 of 31
CODING: Words strisken are deletions; words underlined are additions.
hb04 73-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
601 forms in subsection (4) or subsection (5).
602 (8) Any provisions in a lien waiver or lien release which
603 are that is not related to the waiver or release of a lien or
604 the right to claim a lien as provided in this section are
605 unenforceable, unless the lienor has otherwise agreed to those
606 provisions in the direct contract substantially similar to the
607 forms in subsections (4) and (5) is enforceable in accordance
608 with the terms of the lien waiver or lien release.
609 Section 10. Section 713.21, Florida Statutes, is amended
610 to read:
611 713.21 Discharge of lien.-A lien properly perfected under
612 this chapter may be discharged, or released in whole or in p art,
613 by any of the following methods:
614 (1) By entering satisfaction of the lien upon the margin
615 of the record thereof in the clerk's office when not otherwise
616 prohibited by law. This satisfaction shall be signed by the
617 lienor, the lienor's agent or attorney and attested by said
618 clerk. Any person who executes a claim of lien has shall have
619 authority to execute a satisfaction in the absence of actual
620 notice of lack of authority to any person relying on the same.
621 (2) By the satisfaction or release of the lienor, duly
622 acknowledged and recorded in the clerk's office. The
623 satisfaction or release must include the lienor's notarized
624 signature and set forth the official records' reference numbers
625 and recording date affixed by the recording office on the
Page 25 of 31
CODING: Words strisken are deletions; words underlined are additions.
hb0473-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
626 subject lien. Any person who executes a claim of lien has shall
627 fta-¥e authority to execute a satisfaction or release in the
628 absence of actual notice of lack of authority to any person
629 relying on the same.
630 (3) By failure to begin an action to enforce the lien
631 within the time prescribed in this part.
632 (4) By an order of the circuit court of the county where
633 the property is located, as provided in this subsection. Upon
634 filing a complaint therefor by any interested party the clerk
635 shall issue a summons to the lienor to show cause within 20 days
636 why his or her lien should not be enforced by action or vacated
637 and canceled of record. Upon failure of the lienor to show cause
638 why his or her lien should not be enforced or the lienor's
639 failure to commence such action before the return date of the
640 summons the court shall forthwith order cancellation of the
641 lien.
642 (5) By recording in the clerk's office the original or a
643 certified copy of a judgment or decree of a court of competent
644 jurisdiction showing a final determination of the action.
645 Section 11. Paragraph (d) of subsection (1) of section
646 713.23, Florida Statutes, is amended to read:
647 713.23 Payment bond.-
648 ( 1)
649 (d) In addition, a lienor who has not received payment for
650 furnishing his or her labor, services, or materials must, as a
Page 26 of 31
CODING: Words stricken are deletions; words underlined are additions.
hb04 73-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
651 condition precedent to recovery under the bond, serve a written
652 notice of nonpayment on .:e--e the contractor and a copy of the
653 notice on the surety. The notice must be under oath and served
654 during the progress of the work or thereafter, but may not be
655 served later than 90 days after the final furnishing of labor,
656 services, or materials by the lienor, or, with respect to rental
657 equipment, later than 90 days after the date the rental
658 equipment was on the job site and available for use. A notice of
659 nonpayment that includes sums for retainage must specify the
660 portion of the amount claimed for retainage. The required notice
661 satisfies this condition precedent with respect to the payment
662 described in the notice of nonpayment, including unpaid finance
663 charges due under the lienor's contract, and with respect to any
664 other payments which become due to the lienor after the date of
665 the notice of nonpayment. The time period for serving a notice
666 of nonpayment is shall be measured from the last day of
667 furnishing labor, services, or materials by the lienor and may
668 not be measured by other standards, such as the issuance of a
669 certificate of occupancy or the issuance of a certificate of
670 substantial completion. The failure of a lienor to receive
671 retainage sums not in excess of 10 percent of the value of
672 labor, services, or materials furnished by the lienor is not
673 considered a nonpayment requiring the service of the notice
674 provided under this paragraph. If the payment bond is not
675 recorded before commencement of construction, the time period
Page 27 of 31
CODING: Words stricken are deletions; words underlined are additions.
hb0473-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
676 for the lienor to serve a notice of nonpayment may at the option
677 of the lienor be calculated from the date specified in this
678 section or the date the lienor is served a copy of the bond.
679 However, the limitation period for commencement of an action on
680 the payment bond as established in paragraph (e) may not be
681 expanded. The negligent inclusion or omission of any information
682 in the notice of nonpayment that has not prejudiced the
683 contractor or surety does not constitute a default that operates
684 to defeat an otherwise valid bond claim. A lienor who serves a
685 fraudulent notice of nonpayment forfeits his or her rights under
686 the bond. A notice of nonpayment is fraudulent if the lienor has
687 willfully exaggerated the amount unpaid, willfully included a
688 claim for work not performed or materials not furnished for the
689 subject improvement, or prepared the notice with such willful
690 and gross negligence as to amount to a willful exaggeration.
691 However, a minor mistake or error in a notice of nonpayment, or
692 a good faith dispute as to the amount unpaid, does not
693 constitute a willful exaggeration that operates to defeat an
694 otherwise valid claim against the bond. The service of a
695 fraudulent notice of nonpayment is a complete defense to the
696 lienor's claim against the bond. The notice under this paragraph
697 must include the following information, current as of the date
698 of the notice, and must be in substantially the following form:
699
700 NOTICE OF NONPAYMENT
Page 28 of 31
CODING: Words strioken are deletions; words underlined are additions.
hb04 73-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
701
702 To ... (name of contractor and address) ...
703
704 ... (name of surety and address) ...
705
706 The undersigned lienor notifies you that:
707 1. The lienor has furnished ... (describe labor, services,
708 or materials) ... for the improvement of the real property
709 identified as ... (property description) .... The corresponding
710 amount unpaid to date is$ .... , of which$ .... is unpaid
711 retainage.
712 2. The lienor has been paid to date the amount of$ ....
713 for previously furnishing ... (describe labor, services, or
714 materials) ... for this improvement.
715 3. The lienor expects to furnish ... (describe labor,
716 services, or materials) ... for this improvement in the future
717 (if known), and the corresponding amount expected to become due
718 is $ .... (if known).
719
720 I declare that I have read the foregoing Notice of Nonpayment
721 and that the facts stated in it are true to the best of my
722 knowledge and belief.
723
724 DATED on .. .. . . ...... , .. . ... .. .
725
Page 29 of 31
CODING: Words stricken are deletions; words underlined are additions.
hb04 73-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
726 ... (signature and address of lienor) ...
727
728 STATE OF FLORIDA
729 COUNTY OF ....... .
730
731 The foregoing instrument was sworn to (or affirmed) and
732 subscribed before me by means of D physical presence or sworn to
733 (or affirmed) by D online notarization, this .... day of .... ,
734 ... (year) ... , by ... (name of signatory) ....
735 ... (Signature of Notary Public - State of Florida) ...
736 ... (Print, Type, or Stamp Commissioned Name of Notary
737 Public) ...
738
739 Personally Known ........ OR Produced Identification ....... .
740
741 Type of Identification Produced
742 Section 12. Subsections (3) and (5) of section 713.235,
743 Florida Statutes, are amended to read:
744 713.235 Waivers of right to claim against payment bond;
745 forms.-
746 (3) A person may not require a claimant to furnish a
747 waiver that is different from the forms in subsections (1) and
748 (2) in exchange for, or to induce payment of, a progress payment
749 or final payment unless the claimant has entered into a direct
750 contract that requires the claimant to furnish a waiver that is
Page 30 of 31
CODING: Words stricken are deletions; words underlined are additions.
hb0473-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 473 2021
751 different from the forms in subsections (1) and (2).
752 (5) Any provisions in a waiver which are that io not
753 related to the waiver of a claim or a right to claim against the
754 payment bond as provided in this section are unenforceable,
755 unless the claimant has otherwise agreed to those provisions in
756 the claimant's direct contract substantially similar to the
757 forms in this section is enforceable in accordance ;,ith its
758 terms.
759 Section 13. Section 713.29, Florida Statutes, is amended
760 to read:
761 713.29 Attorney Attorney's fees.-In any action brought to
7 62 enforce a lien , including a lien that has been transferred to
763 security, or to enforce a claim against a bond under this part,
764 the prevailing party is entitled to recover a reasonable fee for
765 the services of her or his attorney for trial and appeal or for
766 arbitration, in an amount to be determined by the court, which
7 67 fee must be taxed as part of the prevailing party's costs, as
7 68 allowed in equitable actions.
769 Section 14. This act shall take effect July 1, 2021.
Page 31 of 31
CODING: Words stricken are deletions; words underlined are additions.
hb04 73-01-c1
I
co
"'
....,.
0,
HOUSE OF REPRESENTATIVES LOCAL BILL STAFF ANALYSIS
BILL#: HB 751 City of Gainesville, Alachua County
SPONSOR(S): Clemons
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Local Administration & Veterans Affairs 18 Y, 0 N Renner Miller
Subcommittee
2) Regulatory Reform Subcommittee Willson fV't Anstead
3) State Affairs Committee
SUMMARY ANALYSIS
Florida's Beverage Law places a limit on the number of "quota licenses" that the Department of Business and
Professional Regulation (DBPR) may issue per county. A quota license allows a business to serve any
alcoholic beverage regardless of alcoholic content, including liquor. DBPR is not limited by the Beverage Law
on the number of licenses it may issue for businesses that serve only malt beverages and wine.
The bill creates an exception toss. 561.01 (11) and 561.20, F.S., permitting food trucks operators within a food
truck park, as defined by the City of Gainesville's Code of Ordinances, to sell alcoholic beverages for
consumption on the licensed premises located in Innovation Square within the City of Gainesville. The food
truck park must have permanent fencing; municipal water, sewer, and solid waste connections; sun sails;
tables; and seating.
Food truck operators are prohibited from selling alcoholic beverages by the package for consumption outside
of the food truck park. There is no limit on the number of licenses issued to a food truck operator within a food
truck park within Innovation Square.
According to the Economic Impact Statement, the bill is revenue neutral.
According to House Rule 5.5(b), a local bill providing an exemption from general law may not be placed
on the Special Order Calendar for expedited consideration. Since this bill creates an exemption to
general law, the provisions of House Rule 5.5(b) apply.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0751 b.RRS.DOCX
DATE: 3/14/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
Alcoholic Beverage Licensing
The Division of Alcoholic Beverages and Tobacco (DABT) within the Department of Business and
Professional Regulation (DBPR) is responsible for regulating the conduct, management, and operation
of the manufacturing, packaging, distribution, and sale within the state of alcoholic beverages under
Florida's Beverage Law. 1
The Beverage Law does not limit the number of licenses DABT may issue to businesses who wish to
sell malt beverages or wine. 2 However, the Beverage Law limits the number of licenses that may be
issued allowing a business to sell any alcoholic beverage regardless of alcoholic content, including
liquor or distilled spirits. 3 This license, often referred to as a "quota license," is limited to one license per
7,500 residents per county with a minimum of three licenses per county that has approved the sale of
intoxicating liquors. 4
There are several exceptions to the quota license limitation, and businesses meeting the requirements
set out in statute 5 may be issued a special license by DBPR allowing the business to serve any
alcoholic beverages regardless of alcoholic content.
Alcoholic beverages sold for consumption on premises must be consumed inside the licensed
premises. 6 DBPR may approve a temporary expansion of the licensed premises to include a sidewalk
or other outdoor area for special events.7 The business must pay an application fee of $100, stipulate
the timeframe for the special event, submit a sketch outlining the expanded premises, and submit
written approval from the county or municipality.
City of Gainesville Food Truck Parks
The City of Gainesville specifically defines "food trucks" 8 and authorizes the sale and consumption of
alcoholic beverages in food truck parks. 9 The ordinance defines a food truck park as land with three or
more food truck pads 10 that is designed for food truck use with: 11
1 Chs. 561-565 and 567-568, F.S.
2
See SS. 563.02 and 564.02, F.S.
3
S. 561.20(1), F.S. Sees. 565.02(1)(a)-(f), F.S.
4 S. 561.20(1 ), F.S.
5 S. 561 .20(2), F.S.
6
See s. 561.01 (11 ), F.S . (defining "licensed premises" and requiring written approval from the county or municipality to
include a sidewalk or any other outside area as part of the licensed premise).
7
S. 561.01 (11 ), F.S.
8 Food truck means a motorized self-contained wheeled vehicle, wheeled trailer, and other conveyances, regardless of
the means of propulsion, that is used to vend immediately consumable food or beverage products and is classified as
either: 1) Class I - mobile kitchens that have the capability to cook, prepare, and assemble food items on or in the unit;
or 2) Class II - canteen units where no preparation or assembly of foods or beverages take place on or in the unit, but
which may heat and serve pre-cooked foods or fruits, vegetables, pre-packaged foods or drinks. City of Gainesville Code
of Ordinances, ch. 30, art. II, s. 30-2.1.
9
City of Gainesville Code of Ordinances, ch. 30, art. V, div. 1, s. 30-5.13.
°
1 City of Gainesville Code of Ordinances, ch. 30, art. II, s. 30-2.1 defines a "food truck pad" as an area designated within
a food truck park that is designed for food truck use with provision for applicable utilities, including water, sewer,
electricity, gas grease interceptors, and solid waste.
11 City of Gainesville Code of Ordinances, ch. 30, art. V, div. 1, s. 30-5.13.
STORAGE NAME: h0751 b.RRS .DOCX PAGE: 2
DATE: 3/14/2021
• Connections to electric utility services;
• Restrooms that are connected to water and sewer utility services and have plumbing;
• Handwashing stations; and
• Central solid waste disposal areas and recycling facilities.
Effect of the Bill
The bill creates an exception toss. 561.01 (11) and 561.20, F.S., permitting food trucks operators within
a food truck park, as defined by the City of Gainesville's Code of Ordinances, to sell alcoholic
beverages for consumption on the licensed premises located in Innovation Square within the City of
Gainesville. The food truck park must have permanent fencing ; municipal water, sewer, and solid waste
connections; sun sails; tables; and seating.
Food truck operators are prohibited from selling alcoholic beverages by the package for consumption
outside of the food truck park. There is no limit on the number of licenses issued to food truck operators
within a food truck park within Innovation Square.
B. SECTION DIRECTORY:
Section 1. Creates an exception to general law, allowing food trucks within a food truck park to sell
alcoholic beverages for consumption on the licensed premise located in Innovation
Square within the City of Gainesville.
Section 2. Provides the act is effective upon becoming a law.
11. NOTICE/REFERENDUM AND OTHER REQUIREMENTS
A NOTICE PUBLISHED? Yes [X] No []
IF YES , WHEN? December 17, 2020
WHERE? The Gainesville Sun, a daily newspaper published in Gainesville, Florida.
8. REFERENDUM(S) REQUIRED? Yes[] No [X]
IF YES, WHEN?
C. LOCAL BILL CERTIFICATION FILED? Yes [X] No[]
D. ECONOMIC IMPACT STATEMENT FILED? Yes [X] No[]
Ill. COMMENTS
A CONSTITUTIONAL ISSUES:
None.
B. RULE-MAKING AUTHORITY:
The bill neither authorizes nor requires administrative rulemaking by executive branch agencies.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
STORAGE NAME: h0751 b.RRS .DOCX PAGE: 3
DATE: 3/14/2021
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
None.
STORAGE NAME: h0751 b.RRS.DOCX PAGE: 4
DATE: 3/14/2021
FLORIDA H O U S E 0 F REPRESENTATIVES
HB 751 2021
1 A bill to be entitled
2 An act relating to City of Gainesville, Alachua
3 County; providing an exception to general law;
4 authorizing the issuance of a special license to
5 mobile food dispensing vehicles to sell alcoholic
6 beverages for the consumption of alcoholic beverages
7 within a specified area; providing requirements;
8 prohibiting a licensee from selling alcoholic
9 beverages by the package for consumption outside the
10 specified area; providing for the issuance of an
11 unlimited number of licenses within specified area;
12 providing that an operator is not exempt from meeting
13 requirements to hold a license; providing boundaries;
14 providing an effective date.
15
16 Be It Enacted by the Legislature of the State of Florida:
17
18 Section 1. (1) Notwithstanding ss. 561.20 and 561.01(11),
19 Florida Statutes, in addition to any licenses that may be issued
20 under the provisions of chapter 561, Florida Statutes, a special
21 license to sell alcoholic beverages shall be issued to a mobile
22 food dispensing vehicle in a food truck park, as defined and
23 authorized in accordance with Sections 30-2.1 and 30-5.13 of the
24 City of Gainesville's Code of Ordinances (2020), located in
25 Innovation Square, and such alcoholic beverages may be consumed
Page 1 of 3
CODING: Words stricken are deletions; words underlined are additions.
hb0751-00
FLORIDA H O U S E 0 F REPRESENTATIVES
HB 751 2021
26 by patrons within such food truck park as long as the food truck
27 park has permanent fencing; municipal water, sewer, and solid
28 waste; sun sails; tables; and seating. A license issued pursuant
29 to this section does not permit the licensee to sell alcoholic
30 beverages by the package for consumption outside of the food
31 truck park. There is no limit on the number of special licenses
32 issued in accordance with this act within a food truck park in
33 Innovation Square. This act does not exempt an operator from
34 having to otherwise meet the requirements to hold a license.
35 (2) For the purposes of this act, "Innovation Square"
36 means the area described as an area of land situated in Section
37 5, Township 10 South, Range 20 East, in the City of Gainesville,
38 being more particularly described as follows:
39
40 Begin at the intersection of the centerline of SW 6th
41 Street with the centerline of SW 5th Avenue; thence
42 westerly along said SW 5th Avenue to an intersection
43 with the southerly projection of the west line of lots
44 14 and 15, block 7 of University Heights, as per plat
45 thereof recorded in plat book "A", page 99 of the
46 public records of Alachua County, Florida; thence
47 northerly along said west line and its northerly
48 project to an intersection with the centerline of SW
49 4th Avenue; thence westerly along SW 4th Avenue, to an
50 intersection with the centerline of SW 10th Street;
Page 2 of 3
CODING: Words striskon are deletions; words underlined are additions.
hb0751-00
FLORIDA H O U S E 0 F REPRESENTATIVES
HB 751 2021
51 thence northerly along SW 10th Street, to an
52 intersection with the centerline of SW 2nd Avenue;
53 thence westerly along SW 2nd Avenue, to an
54 intersection with southerly projection on the west
55 line of Lot 20, Block 5 of University Place, as per
56 plat thereof recorded in Plat Book "A", page 77 of the
57 public records of Alachua County, Florida; thence
58 northerly along said west line and its northerly
59 projection, to the centerline of SW 1st Place; thence
60 easterly along said SW 1st Place, to an intersection
61 with the centerline of SW 10th Street; thence
62 northerly along SW 10th Street to an intersection with
63 the centerline of SW 1st Avenue; thence easterly along
64 SW 1st Avenue and its easterly projection, to an
65 intersection with the centerline of SW 6th Street;
66 thence southerly along SW 6th Street to the point of
67 beginning.
68
69 Section 2. This act shall take effect upon becoming a law .
Page 3 of 3
CODING: Words stricken are deletions; words underlined are additions.
hb0751-00
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 755 Arrest Booking Photographs
SPONSOR(S): Criminal Justice & Public Safety Subcommittee, Fischer
TIED BILLS: IDEN./SIM. BILLS: SB 1046
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice & Public Safety Subcommittee 17 Y, 0 N, As CS Mathews Hall
2) Regulatory Reform Subcommittee Wrigh
3) Judiciary Committee
SUMMARY ANALYSIS
An arrest booking photograph (commonly called a "mugshot") is a photograph taken upon a person's arrest
that is generally used by law enforcement, a victim, or the public to identify the person. A law enforcement
agency may make such booking photographs available to the public by publishing them on the agency's
website. Following an arrest, a person's criminal charge may result in a dismissal or acquittal, making the
person eligible to seal or expunge the arrest record. However, a person's booking photograph may remain on a
publicly accessible website regardless of the outcome of their criminal case.
Commercial entities, such as Mugshots.com, use software and artificial intelligence to automatically aggregate
arrest booking photographs from law enforcement agency websites to publish on their own websites. Section
901.43, F.S., prohibits a person or entity from soliciting or accepting a fee or other payment in exchange for
removing an arrest booking photograph from a publically accessible print or electronic medium. A person
whose booking photograph is published, or a legal representative, may make a written request to the
publisher's registered agent to remove the photograph. Upon receiving such a request, the publisher must
remove the photograph within 10 days and may not charge a fee for doing so. If the entity does not remove the
photograph within 10 days, a person may bring a civil action to enjoin the continued publication of the
photograph and a court may impose a penalty up to $1,000 a day for noncompliance with the injunction.
Currently, s. 901 .43, F.S., only applies to a person or entity that solicits or accepts payment to remove a
booking photograph.
CS/HB 755 expands s. 901.43, F.S., to apply to any person or entity whose primary business model is the
publishing and disseminating of arrest booking photographs for a commercial purpose or pecuniary gain. As
such, companies that do not solicit or accept payment to remove a person's booking photograph, but rather
profit by selling advertisements in the publication or on the electronic medium that publishes and disseminates
booking photographs will be subject to the requirements of s. 901.43, F.S. A person whose booking
photograph has been published and disseminated by such an entity may make a written request to have their
photograph removed, and if the entity fails to comply with the written request, they may seek an injunction to
enjoin the continued publication of the photograph and civil damages for noncompliance with such injunction.
The bill may have a positive indeterminate fiscal impact to state government by increasing the amount of fines
recovered for a violation of s. 901.43, F.S., which are deposited into the General Revenue Fund .
The bill provides an effective date of October 1, 2021 .
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0755b.RRS.D0CX
DATE: 3/11/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Dissemination of A rrest Booking Photographs
Florida law does not specifically prohibit mugshot companies from posting arrest booking photographs,
but does prohibit charging a fee to remove such postings. 1 Section 901.43, F.S., prohibits any person
or entity engaged in the business of publicly publishing arrest booking photographs from soliciting or
accepting a fee or other form of payment to remove a photograph. 2 A person whose booking
photograph is published, or a legal representative, may make a written request to the publisher's
registered agent to remove the photograph. The request must:
• Be made in writing;
• Be sent by registered mail;
• Include sufficient proof of identification of the person whose arrest booking photograph was
published; and
• Include specific information identifying the arrest booking photograph to be removed; 3
The person or entity that published an arrest booking photograph must remove the photograph within
10 days of receiving the written request for removal. 4 If the photograph is not removed within 10
calendar days, the person seeking removal may bring a civil action to enjoin the continued publication
of the photograph. Additionally, the court may impose a civil penalty of $1,000 per day for
noncompliance and must award reasonable attorney fees and court costs. Any money recovered as a
civil penalty must be deposited into the General Revenue Fund. 5
Section 901.43, F.S., only applies to a person or entity that solicits or accepts payments to remove
arrest booking photographs. 6 As such, websites that aggregate and publish arrest booking
photographs, but profit by selling advertisements for services such as mugshot removal or reputation
management, rather than by charging a fee to remove the photograph, continue to operate without
being subject to the requirements and penalties in s. 901.43, F.S. 7
Criminal History Records
All "documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data
processing software, or other material, regardless of the physical form, characteristics, or means of
transmission, made or received pursuant to law or ordinance or in connection with the transaction of
official business by any agency" are public records and open for public inspection, unless a specific
exemption applies. 8
1 S. 901.43, F.S.
2 S. 901.43(1 ), F.S.
3 S. 901.43(2), F.S.
4 fd.
5 S. 901.43(3), F.S.
6 S. 901.43(5), F.S.
7 Eumi K. Lee, Monetizing Shame: Mugshots, Privacy, and the Right to Access, 70 Rutgers U.L. Rev. 557, 568 (2018).
8 Office of the Attorney General (Florida), Government in the Sunshine Manual (2020 Edition), at p. 56. (citing to s.
119.011 ( 12), F.S.), http ://myfloridalegal.com/webfiles.n sf/WF/M N0S-B9QQ 79/$file/Sunsh ineMan ual ,pdf ( last visited on
Mar. 9, 2021).
STORAGE NAME: h0755b.RRS.D0CX PAGE: 2
DATE: 3/11/2021
Arrest and crime reports may be obtained and published by non-governmental publishers. This
information includes booking photographs, arrest reports, charging documents, sentencing orders, and
criminal history information. 9 Like all other records prepared by Florida government agencies, arrest
and crime reports are subject to public disclosure unless specifically exempted .10 Arrest record
information may be requested through a public records request by members of the public, traditional
news media, companies that provide criminal history or criminal record information for a service or
subscriber fee, and companies that are often referred to as "mugshot" companies.
Public record information pertaining to a person's arrest for the alleged commission of a crime includes
the arrest report and arrest booking photograph. With few exceptions, arrest record information
(including a booking photograph) must be disclosed pursuant to a public records request. 11 However,
the arrest record information of a juvenile charged with a misdemeanor is confidential and exempt, 12
and a public records custodian may choose to not electronically publish the arrest or booking
photograph of a child that is not confidential and exempt. 13
Expunction and Sealing of Criminal Records
Florida has established mechanisms by which a person may have their criminal record sealed 14 or
expunged 15 under certain circumstances. When a record is sealed or expunged, the record is not
available to the public in response to a public records request.
A person who meets other specified criteria may be eligible to petition a court to expunge a criminal
history record if:
• An indictment, information, or other charging document was not filed or issued in the case
giving rise to the criminal history record; or
• An indictment information, or other charging document filed or issued in the case giving rise to
the criminal history record, was dismissed or nolle prosequi by the state attorney or statewide
prosecutor, or was dismissed by a court of competent jurisdiction or a judgment of acquittal was
rendered by a judge, or a verdict of not guilty was rendered by a judge or jury.16
Similarly, a person who meets other specified criteria may be eligible to petition a court to seal a
criminal history record if:
• The criminal history record is not ineligible for court-ordered sealing under s. 943.0584, F.S.;17
and
9 The Florida Department of Law Enforcement (FDLE) is the central repository of criminal history information for the State
of Florida. For a fee, a search of Florida criminal history information regarding a person may be performed. Excluded from
the search is sealed or expunged information. FDLE, Criminal History Information, Frequently Asked Questions,
https://cchinet.fdle.state.fl.us/search/app/faq?B (last visited on Mar. 9, 2021 ).
10 Office of the Attorney General (Florida), supra n. 8 at 97.
11 Op. Att'y Gen. 94-90 (October 25, 1994) (footnotes omitted),
http://www.myfloridalegal.com/ago.nsf/Opinions/83A 1D5004064269D852562210063168E (last visited on Mar. 9, 2021 ).
12 Ss. 943.053(3), and 985.04(2), F.S.
13 S. 985.04{2){a)(2), F.S.
14 Sealing of a criminal history record means the preservation of a record under such circumstances that it is secure and
inaccessible to any person not having a legal right to access the record or the information contained and preserved
therein. S. 943.045(19), F.S.
15 Expunction of a criminal history record means the court-ordered physical destruction or obliteration of a record or
portion of a record by any criminal justice agency having custody thereof, or as prescribed by the court issuing the order,
except that criminal history records in the custody of FDLE must be retained in all cases for purposes of evaluating
subsequent requests by the subject of the record for sealing or expunction, or for purposes of recreating the record in the
event an order to expunge is vacated by a court of competent jurisdiction. S. 943.045(16), F.S.
16 S. 943.0585, F.S.
17 Criminal history records for offenses including, but not limited to, crimes like terrorism, murder, and certain sexual
misconduct are ineligible for court-ordered expunction or sealing. The complete list of ineligible offenses is provided under
s. 943.0584, F.S.
STORAGE NAME: h0755b.RRS.D0CX PAGE: 3
DATE: 3/11/2021
• The person has not been adjudicated guilty of, or adjudicated delinquent for committing , any of
the acts stemming from the arrest or alleged criminal activity to which the petition to seal
pertains. 18
In some scenarios, a person who is arrested for a criminal offense and who later obtains a sealing or
expunction of the related criminal history record may not enjoy the full benefit of the sealing or
expunction if their associated arrest record remains publicly accessible on a website or other
publication.
Right of Publicity
Section 540.08(1), F.S., prohibits a person from publishing, printing, displaying, or otherwise publicly
using for purposes of trade or for any commercial or advertising purpose the name, portrait,
photograph, or other likeness of any natural person without the person's express written or oral consent
to such use. There are exceptions for:
• Publication, printing, display, or use of the name or likeness of any person in any newspaper,
magazine, book, news broadcast or telecast, or other news medium or publication as part of any
bona fide news report or presentation having a current and legitimate public interest and where
such name or likeness is not used for advertising purposes;
• The use of such name, portrait, photograph, or other likeness in connection with the resale or
other distribution of literary, musical, or artistic productions or other articles of merchandise or
property where such person has consented to the use on or in connection with the initial sale or
distribution; and
• Any photograph of a person solely as a member of the public and where such person is not
named or otherwise identified in or in connection with the use of such photograph. 19
When necessary consent is not obtained, the person whose name, portrait, photograph, or other
likeness is used may bring an action to enjoin the unauthorized publication, printing, display or other
public use, and to recover damages for any loss or injury sustained, including an amount which would
have been a reasonable royalty, and punitive or exemplary damages. 20
Florida Deceptive and Unfair Trade Practices Act
The Florida Deceptive and Unfair Trade Practices Act (FDUTPA) protects consumers from deceptive
and misleading acts and protects consumers and legitimate business enterprises from those engaging
in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in trade or
commerce. FDUTPA applies to any act or practice occurring in the conduct of any trade or commerce,
even between purely commercial interests. It also applies to private causes of action arising from single
unfair or deceptive acts in the conduct of any trade or commerce , even if it involves only a single party,
a single transaction, or a single contract. The Attorney General may enjoin any person who has
violated, is violating, or is otherwise likely to violate any portion of FDUTPA. 21
Refusal to remove an arrest booking photograph after a person makes a written request under s.
901.43, F.S, constitutes an unfair or deceptive trade practice in accordance with part II of ch. 501,
F . s.22
1a S. 943.059, F.S.
19 S. 540.08(4), F.S.
20 S. 540.08(2), F.S.
21 Whenever the Department of Legal Affairs has reason to believe that a person has been, or is, violating FDUTPA, and it
appears that a cease and desist order against such violation would be in the interest of the public, it shall issue and serve
upon such person a complaint and order stating its charges in that respect and containing a notice of a hearing upon a
day and at the place therein fixed at least 30 days after the service of said complaint, and said hearing shall be held in
conformity with the provisions of chapter 120. S. 501.208, F.S.
22 S. 901.43(4), F.S.
STORAGE NAME: h0755b.RRS .D0CX PAGE: 4
DATE: 3/11/2021
Effect of Proposed Changes
CS/HB 755 expands s. 901.43, F.S., to include any person or entity whose primary business model is
the publishing and disseminating of arrest booking photographs for a commercial purpose or pecuniary
gain. As such, companies that do not solicit or accept payment to remove a person's booking
photograph, but rather profit by selling advertisements in a publication or on an electronic medium that
publishes and disseminates arrest booking photographs will be subject to the requirements of s.
901.43, F.S. Under the bill, a person whose booking photograph has been published and disseminated
by such an entity may make a written request to have their photograph removed, and if the entity fails
to comply with the written request, they may seek an injunction to enjoin the continued publication of
the photograph and civil damages for noncompliance with such injunction.23
Entities such as a law enforcement agency or a legitimate newspaper or television station are not
subject to the restrictions and civil remedies established by the bill, as the primary business model of
such persons or entities is not the publishing or disseminating of arrest booking photographs for a
commercial purpose or pecuniary gain.
The bill provides an effective date of October 1, 2021.
B. SECTION DIRECTORY:
Section 1: Amends s. 901.43, F.S., relating to the dissemination of arrest booking photographs.
Section 2: Provides an effective date of October 1, 2021.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues :
The bill may have a positive indeterminate fiscal impact to state government by increasing the
amount of fines recovered for violations of s. 901.43, F.S., which are deposited into the General
Revenue Fund.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1 . Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
23 47 U.S. Code§ 230 (Section 230) states that "[n]o provider ... of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another information content provider," and prohibits all inconsistent
causes of action and prohibits liability imposed under any State or local law. The bill may implicate Section 230, in limited
circumstances, for potentially holding an online business liable for hosting or not removing arrest booking photographs
posted by another.
STORAGE NAME: h0755b.RRS .D0CX PAGE : 5
DATE: 3/11/2021
The bill may have a negative fiscal impact on the private sector by increasing the number of entities
which may be fined for a violation of s. 901.43, F.S.
D. FISCAL COMMENTS:
None.
111. COMMENTS
A CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable.
2. Other:
None.
8 . RULE-MAKING AUTHORITY:
Not applicable.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On March 9, 2021, the Criminal Justice & Public Safety Subcommittee adopted one amendment and
reported the bill favorably as a committee substitute. The amendment:
• Removed an exception to applicability for the purpose of disseminating news to the public, including
gathering, publishing, or broadcasting information to the public for a news-related purpose.
This analysis is drafted to the committee substitute as passed by the Criminal Justice & Public Safety
Subcommittee.
STORAGE NAME: h0755b.RRS.D0CX PAGE: 6
DATE: 3/11/2021
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 755 2021
1 A bill to be entitled
2 An act relating to arrest booking photographs;
3 amending s. 901.43, F.S.; expanding the applicability
4 of provisions relating to the dissemination of arrest
5 booking photographs to include a person or entity
6 whose primary business model is the publishing or
7 dissemination of such photographs for a commercial
8 purpose or pecuniary gain; providing an effective
9 date.
10
11 Be It Enacted by the Legislature of the State of Florida:
12
13 Section 1. Section 901.43, Florida Statutes, is amended to
14 read:
15 901.43 Dissemination of arrest booking photographs.-
16 (1) Any person or entity engaged in the business of
17 publishing through a publicly accessible print or electronic
18 medium or otherwise disseminating arrest booking photographs of
19 persons who have previously been arrested may not solicit or
20 accept a fee or other form of payment to remove the photographs.
21 (2) A person whose arrest booking photograph is published
22 or otherwise disseminated, or his or her legal representative,
23 may make a request, in writing, for the removal of an arrest
24 booking photograph to the registered agent of the person or
25 entity who published or otherwise disseminated the photograph.
Page 1 of 3
CODING: Words strisken are deletions; words underlined are additions.
hb0755-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 755 2021
26 The written request for removal of the arrest booking photograph
27 must be sent by registered mail and include sufficient proof of
28 identification of the person whose arrest booking photograph was
29 published or otherwise disseminated and specific information
30 identifying the arrest booking photograph that the written
31 request is seeking to remove. Within 10 days of receipt of the
32 written request for removal of the arrest booking photograph,
33 the person or entity who published or otherwise disseminated the
34 photograph shall remove the arrest booking photograph without
35 charge.
36 (3) The person whose arrest booking photograph was
37 published or otherwise disseminated in the publication or
38 electronic medium may bring a civil action to enjoin the
39 continued publication or dissemination of the photograph if the
40 photograph is not removed within 10 calendar days after receipt
41 of the written request for removal. The court may impose a civil
42 penalty of $1,000 per day for noncompliance with an injunction
43 and shall award reasonable attorney fees and court costs related
44 to the issuance and enforcement of the injunction. Moneys
45 recovered for civil penalties under this section shall be
46 deposited into the General Revenue Fund.
47 (4) Refusal to remove an arrest booking photograph after
48 written request has been made constitutes an unfair or deceptive
49 trade practice in accordance with part II of chapter 501.
50 (5) This section does not apply to any person or entity
Page 2 of 3
CODING: Words striskeA are deletions; words underlined are additions.
hb0755-01-c1
FLORIDA H O U S E 0 F REPRESENTATIVES
CS/HB 755 2021
51 that publishes or disseminates information relating to arrest
52 booking photographs unless~
53 J_§l The person or entity solicits or accepts payment to
54 remove the photographs; or
55 (b) The person or entity's primary business model is the
56 publishing and disseminating of arrest booking photographs for a
57 commercial purpose or pecuniary gain.
58 Section 2. This act shall take effect October 1, 2021.
Page 3 of 3
CODING: Words strisken are deletions; words underlined are additions.
hb0755-01-c1
:::t
CCJ
(0
0,
(...)
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 953 Criminal History in Professional Licensing Applications
SPONSOR(S): Chambliss and others
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform Subcommittee Wright Anstead
2) Criminal Justice & Public Safety Subcommittee
3) Commerce Committee
SUMMARY ANALYSIS
The Department of Business and Professional Regulation (DBPR) regulates and licenses several Florida
professions. Generally, DBPR, or a licensing board (board), may deny a license application if the applicant's
criminal history:
• Relates to the practice of the applicant's profession, or
• Is an impairment to a finding of good moral character, if the profession requires good moral character.
When reviewing an applicant's criminal history, most boards take the number of years that have passed into
account before using it as grounds to deny a license. Certain listed professions under DBPR have a separate
time-limited review process for considering criminal history. The listed professions are:
• Construction trades contractors,
• Electrical contractors,
• Barbers, and
• Cosmetologists.
For these professions, the review is limited to five years prior to application. However, boards may consider
forcible felonies and sexual predator crimes at any time if they relate to the practice of the profession.
As part of the requirements for licensure, construction and electrical contractor applicants are required to show
good moral character, but barber and cosmetology applicants are not. The contractor boards may consider a
contractor applicant's complete criminal history at any time if it relates to good moral character.
The bill shortens the review period, from five years to two years prior to application . However, boards may
continue to consider forcible felonies and sexual predator crimes at any time if they relate to the practice of the
profession.
The bill prohibits the contractor boards from considering crimes which relate to good moral character as
grounds to deny a license if the conviction occurred more than two years before the date of application .
The bill requires the boards to approve educational program credits earned by inmates in any correctional
institution vocational training or through an industry certification program for the purposes of satisfying training
requirements for licensure.
The bill does not have a fiscal impact on state or local governments.
The bill has an effective date of July 1, 2021 .
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0953.RRS.D0CX
DATE: 3/11/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Department of Business and Professional Regulation Umbrella Chapter
The Department of Business and Professional Regulation (DBPR) has 12 divisions that regulate
several Florida professions and businesses. 1 Chapter 455, F.S., applies to the regulation of professions
constituting "any activity, occupation, profession, or vocation regulated by DBPR in the Divisions of
Certified Public Accounting, Professions, Real Estate, and Regulation." 2 It also provides general DBPR
powers and sets forth the procedural and administrative framework for all professional DBPR boards. 3
Licensing Determinations and Criminal History
Generally, any state agency may deny an application for professional license, permit, or certification for
a prior felony or first-degree misdemeanor conviction that is:
• Directly related to the profession's standards; and
• Reasonably related to the protection of the public health, safety, and welfare for the specific
profession for which the license, permit, or certificate is sought. 4
Notwithstanding any law to the contrary, an agency may not deny an application for a license, permit,
certificate, or employment based solely on the applicant's lack of civil rights. 5
DBPR or a licensing board may deny a license application for a person who was convicted or found
guilty of, or entering a plea of guilty or nolo contendere to, regardless of adjudication, a crime in any
jurisdiction which relates to the practice of, or the ability to practice, the applicant's profession, 6 or for
other reasons listed in the applicable practice act. Some professions require applicants to be of good
moral character, and boards may deny a license on such basis.
Florida law does not prohibit an individual from applying for licensure with DBPR while they are still
incarcerated or under some form of supervised release, nor is such an individual charged an additional
fee.7 DBPR also currently allows some correctional training programs to be accepted for licensure
purposes. 8
Barbers
The Barbers' Board under DBPR governs the regulation and licensing of barbers and barbershops in
the state. A barber license is required to perform barbering services. 9 Barbering services include hair
services and limited skin care services when done for compensation, but not for medical purposes 10
1 Section 20.165, F.S, creates the divisions of Administration; Alcoholic Beverages and Tobacco; Certified Public
Accounting; Drugs, Devices, and Cosmetics; Florida Condominiums, Timeshares, and Mobile Homes; Hotels and
Restaurants; Pari-mutuel Wagering; Professions; Real Estate; Regulation; Service Operations; and Technology.
2 S. 455.01 (6), F.S.
3 The DBPR must also provide legal counsel for boards within the DBPR by contracting with the Department of Legal
Affairs, by retaining private counsel, or by providing DBPR staff counsel. Ss. 455.203 and 455.221 (1 ), F .S.
4 S. 112.011(1)(b), F.S.
5 S. 112.011 (1 )(c), F.S.
s S. 455.227(1 )(c), F.S.
7 Florida Department of Business and Professional Regulation, Agency Analysis of 2018 Senate Bill 1114, p. 2 (Jan. 8,
2018).
8
Department of Business and Professional Regulation, Agency Analysis of 2021 House Bill 953, p. 6 (Mar. 4, 2021).
9 S. 476.144(1), F.S.
STORAGE NAME: h0953.RRS.D0CX PAGE: 2
DATE: 3/11/2021
To be eligible for licensure, barbers must: 11
• Be at least 16 years old,
• Complete the required training, 12
• Pass the written examination, 13 and
• Pay an application fee. 14
Criminal History of Barbers
The Barbers' Board may deny a barber license application for any person having been convicted or
found guilty of, or entering a plea of guilty or nolo contendere to, regardless of adjudication, a crime in
any jurisdiction which directly relates to the practice of, or the ability to practice barbering. 15 There is not
a good moral character requirement for barbers.
Cosmetologists
The Board of Cosmetology under DBPR governs the licensing and regulation of cosmetologists, nail
specialists, facial specialists, full specialists, and related salons in the state. A cosmetology license or a
specialty registration is required to perform cosmetology services. Cosmetology services include hair
services, nail services, and skin care services when done for compensation, but not for medical
purposes. 16
To qualify for a cosmetology or specialty license, an applicant must:17
• Be at least age 16 or have a high school diploma,
• Complete the required training,
• Pass the licensure examination (if applicable), and
• Pay an application fee.
Criminal History of Cosmetologists
The Board of Cosmetology may deny a cosmetology license application for any person having been
convicted or found guilty of, or entering a plea of guilty or nolo contendere to, regardless of
adjudication, a crime in any jurisdiction which directly relates to the practice of, or the ability to practice,
cosmetology. 18 There is not a good moral character requirement for cosmetologists.
DBPR Contracting Professionals
The Construction Industry Licensing Board (CILB) under DBPR is responsible for licensing and
regulating professionals in the construction industry described in part I of ch. 489, F.S .. 19
A construction contractor is a person who, for compensation, takes on a job or submits a bid to
construct, repair, alter, remodel, add to, demolish, subtract from, or improve any building or structure for
10 S. 476.034(2), F.S.
11 S. 476.114, F.S.
12 Barbers are eligible to take the examination after 600 hours. If their examination is not successful, the full 900 hours
must be completed. S. 476.114(2)(c), F.S. There is also an option to be a barber with a restricted license, which is 600
hours training in total and restricts such barbers from applying chemical solutions or preparations to hair. S. 476.144(6),
F.S.; R. 61G3-16.006, F.A.C.
13 R. 61-35.006, F.A.C.
14 S. 476.114(2), F.S.
1s S. 455.227(1 )(c), F.S.
1s S. 477.013(4), F.S.
11 S. 477.019(2), F.S.
1a S. 455.227(1 )(c), F.S.
1s S. 489.107, F.S.
STORAGE NAME: h0953.RRS.DOCX PAGE: 3
DATE: 3/11/2021
others, or for resale to others, 20 including the attempted sale of contracting services and the negotiation
or bid for a contract on these services. 21 This can also include receiving funds for the job from
customers. 22
The GILB is divided into two divisions with separate jurisdictions:
• Division I is comprised of the following types of contractors:
o General,
o Building, and
o Residential.
• Division II is comprised of the following types of contractors:
o Sheet metal,
o Roofing,
o Classes A, B, and C air conditioning,
o Mechanical,
o Commercial pool and spa,
o Residential pool and spa,
o Swimming pool and spa servicing,
o Plumbing,
o Underground utility and excavation,
o Solar, and
o Pollutant storage systems.
A specialty contractor is one whose scope of work and responsibility is limited to a particular phase of
construction as detailed in an administrative rule adopted by the CILB. 23
The Electrical Contractors' Licensing Board (ECLB) within DBPR is responsible for licensing and
regulating electrical contractors and alarm system contractors described in part II of ch. 489, F.S. 24
An electrical contractor engages in business as a contractor or performs electrical or alarm work for
compensation, including the attempted sale of contracting services and the negotiation or bid for a
contract on these services. 25 This can also include receiving funds for the job from customers. 26
All construction contractor and electrical contractor applicants must meet the following criteria: 27
• be at least 18 years of age;
• submit an application and fee;
• successfully pass the certification examination; and
• meet eligibility requirements according to a combination of education and experience as
approved by the GILB or ECLB.
Criminal History of Contractors
The GILB and ECLB may deny a license application for any person having been convicted or found
guilty of, or entering a plea of guilty or nolo contendere to, regardless of adjudication, a crime in any
jurisdiction which directly relates to the practice of, or the ability to practice, contracting. 28
20 S. 489.105(3), F.S.
21 S. 489.105(6), F.S.
22 See ss. 489.103(6), 489.126, F.S.
23 For example, specialty swimming pool contractors have limited scopes of work for the construction of pools, spas, hot
tub, and decorative or interactive water displays. R. 61G4-15.032 (2016), F.A.C.
24 S. 489.507, F.S.
2s S. 489.505(9), F.S.
25 Sees. 489.505(9), F.S.
27 Ss. 489.111 (2)(c)1.-3., 489.113, and 489.516, F.S.
28 S. 455.227(2), F.S. See also ss. 489.129(1 )(b) and 489.553(1 )(d), F.S., providing the disciplinary grounds for
construction contractors and electrical contractors, respectively.
STORAGE NAME: h0953.RRS.D0CX PAGE: 4
DATE: 3/11/2021
Construction and electrical contractors must be of good moral character. In considering an applicant's
good moral character, CILB and ECLB may consider any matter, including criminal background, that
has a substantial connection to the good moral character of the applicant and the professional
responsibilities of such a contractor by clear and convincing evidence. 29
The CILB must consider the length of time since the commission of a crime and the applicant's
rehabilitation in denying or approving licensure. 30 The CILB may not deny licensure based solely
upon a felony conviction or the applicant's failure to provide proof of restoration of civil rights. 31
For licensing electrical contractors, the ECLB is not specifically required to consider the
passage of time between the disqualifying criminal offense and the time of application before
denying or granting a license or registration.
Criminal History Review Process - Current Situation
A time-limited review process for considering the criminal history of license applicants for certain listed
professions was passed by the Legislature and signed into law on July 1, 2019. 32
Such licensing application provisions apply to the following listed professions: 33
• Barbers;
• Cosmetologists and cosmetology specialists;
• Air-conditioning contractors;
• Electrical contractors;
• Mechanical contractors;
• Plumbing contractors;
• Pollutant storage systems contractors;
• Roofing contractors;
• Sheet metal contractors;
• Solar contractors;
• Swimming pool and spa contractors;
• Underground utility and excavation contractors;
• Specialty contractors; and
• Any other profession for which the department issues a license, provided the profession is
offered to inmates in any correctional facility as vocational training or through an industry
certification program.
The process limits the period for which the applicable board of a listed profession may consider
convictions, or any other adjudication, for crimes as an impairment to licensure to five years prior to
application for listed professions. However, boards may consider forcible felonies and sexual predator
crimes at any time if they relate to the practice of the profession. 34
Additionally, the CILB and ECLB may still consider a contractor applicant's complete criminal history if it
relates to good moral character.
A person may apply for a license in a listed profession before being released from confinement or
supervision, and may not be charged an additional fee. The applicable board may not deny an
application for a license solely on the basis of the applicant's current confinement or supervision. 35
29 Ss. 489.111 (2)(b), (3)(a) and 489.513(1 )(b), (c), F.S.
3o S. 489.115(6), F.S.
31 Id.
32 Ch. 2019-167, L.O.F.
33 S. 455.213(3)(a), F.S.
34 S. 455.213(3)(b)1., F.S.
35 S. 455.213(3)(c)1 ., F.S .
STORAGE NAME: h0953.RRS.DOCX PAGE: 5
DATE: 3/11/2021
The applicable board of a listed profession must permit an applicant under confinement or supervision
to appear by teleconference or video conference, as appropriate, at any meeting of the applicable
board or other hearing by the agency concerning their application, and the Department of Corrections
(DOC) and the board must cooperate and coordinate to facilitate such appearance. 36 If a person who is
under confinement or supervision is approved for a license for a listed profession, the applicable board
must stay the issuance of the license until the applicant is lawfully released, and the applicant notifies
the board of such release. The board must verify the applicant's release with the DOC before it issues
such a license. 37
The boards of the listed professions must list on DBPR's website the crimes that have not impaired a
person's qualifications for licensure, and update the list annually. Such boards must also identify the
crimes on DBPR's website that have impaired a person's qualifications for licensure, and update the list
quarterly. 38
Criminal Offenses
Sexual predator3 9 registration criteria are described ins. 775.21 (4)1, F.S. Criminal offenses that
require registration include: 40
• A capital, life, or first degree felony for:
o Kidnapping or false imprisonment, where the victim is a minor and there is a sexual
component to the crime;
o Sexual battery;
o Lewd or lascivious battery or molestation;
o Selling or buying minors to engage in sexually explicit conduct;
• An offense that would require registration as a sexual offender, other than transmission of child
pornography by electronic device or transmission of material harmful to minors, by a person with
a prior conviction for a sexual offense; or
• A conviction for a similar offense committed in another jurisdiction. 41
Forcible felonies include:
• Murder;
• Manslaughter;
• Sexual battery;
• Carjacking;
• Home-invasion robbery;
• Robbery;
• Burglary;
• Kidnapping;
• Aggravated assault;
• Aggravated battery; and
• Aggravated stalking. 42
Criminal History Review Process - Effect of the Bill
36 S. 455.213(3)(c)3.-4., F.S.
37 S. 455.213(3)(c)2., F.S.
38 S. 455.213(3)(e), F.S.
39 A sexual predator is someone who has been convicted of a first-degree felony sex crime or has been convicted of two
second-degree felony sex crimes within a ten-year period.
40 S. 775.21(4), F.S.
4 1 Ss. 787.01, 787.02, 847.0145, and 800.04, F.S.
42 S. 776.08, F.S.
STORAGE NAME: h0953.RRS.DOCX PAGE: 6
DATE: 3/11/2021
The bill reduces the time frame , from five years to two years before the date of application, that a board
of a listed profession may use a criminal conviction as grounds to deny a license application. However,
boards may continue to consider forcible felonies and sexual predator crimes at any time if they relate
to the practice of the profession.
The bill prohibits the GILB and ECLB from considering criminal history related to good moral character
as grounds to deny a license as a listed contractor if the conviction occurred more than two years
before the date of application.
The bill requires a board of a listed profession to approve educational program credits for vocational
training or an industry certification program offered to inmates in any correctional institution or facility to
satisfy training requirements for licensure.
The bill has an effective date of July 1, 2021 .
B. SECTION DIRECTORY:
Section 1: Amends s. 455.213, F.S.; relating to certain licensing procedures for applicants with
certain criminal history.
Section 2: Provides an effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may allow more people to become licensed in their chosen profession.
D. FISCAL COMMENTS:
None.
Ill. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to affect county or municipal governments.
STORAGE NAME: h0953.RRS .DOCX PAGE : 7
DATE: 3/11/2021
2. Other:
None.
8. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
DBPR has identified concerns with the bill as it relates to construction and electrical contractors.
"Construction and electrical contractors enter into contracts, accept deposits before work is performed,
and may have access to their customer's financial information. The bill does not grant specific authority
for application denial based upon theft, financial crimes, or other crimes that may relate to the practice
of a profession and are more than two years old. Consequently, the bill may allow individuals who have
committed such crimes at least two years prior to their application for licensure to obtain a license
without consideration of the severity of the crime or the potential risk to the public."43
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
43 DBPR, supra note 8, at 6.
STORAGE NAME: h0953.RRS.D0CX PAGE: 8
DATE: 3/11/2021
FLORIDA H O U S E 0 F REPRESENTATIVES
HS 953 2021
1 A bill to be entitled
2 An act relating to criminal history in professional
3 licensing applications; amending s. 455.213, F.S.;
4 revising the period of time when a conviction, or any
5 other adjudication, for a crime may not be grounds for
6 denial of licensure in specified professions; removing
7 a provision requiring good moral character for
8 licensure in such professions; requiring the
9 applicable board to approve certain education program
10 credits offered to inmates in certain institutions or
11 facilities to satisfy training requirements for
12 licensure in specified professions; providing an
13 effective date.
14
15 Be It Enacted by the Legislature of the State of Florida:
16
17 Section 1. Paragraph (b) of subsection (3) of section
18 455.213, Florida Statutes, is amended and paragraph (f) is added
19 to that subsection, to read:
20 455.213 General licensing provisions.-
21 (3)
22 (b)±.- A conviction, or any other adjudication, for a crime
23 more than 2 ~ years before the date the application is received
24 by the applicable board may not be grounds for denial of a
25 license sPiecified in paragraph (a). For purposes of this
Page 1 of 2
CODING: Words stricken are deletions; words underlined are additions.
hb0953-00
FLORIDA H O U S E 0 F REPRESENTATIVES
HB 953 2021
26 paragraph, the term "conviction" means a determination of guilt
27 that is the result of a plea or trial, regardless of whether
28 adjudication is withheld. This paragraph does not limit the
29 applicable board from considering an applicant's criminal
30 history that includes a crime listed ins. 775.21(4) (a)l. ors.
31 776.08 at any time, but only if such criminal history has been
32 found to relate to the practice of the applicable profession.
33 2. The applicable board may consider the criminal history
34 of an applicant for licensure under subparagraph (a)3. if such
35 criminal history has been found to relate to good moral
36 character.
37 (f) The applicable board shall approve educational program
38 credits offered to inmates in any correctional institution or
39 correctional facility as vocational training or through - an
40 industry certification program for the purposes of satisfying
41 applicable training requirements for licensure in a profession
42 under paragraph (a) .
43 Section 2. This act shall take effect July 1, 2021.
Page 2 of 2
CODING: Words stricken are deletions; words underlined are additions.
hb0953-00
REGULATORY REFORM SUBCOMMITTEE
HB 953 by Reps. Chambliss and Plakon
Criminal History in Professional licensing Applications
AMENDMENT SUMMARY
March 17, 2021
Amendment 1 by Rep. Chambliss (line 25):
The amendment allows the boards for barbers, cosmetologists, construction trades contractors,
and electrical contractors to consider the criminal history of a license applicant beyond the 2
year review limitation if at any time during the 2 year period, the applicant was incarcerated.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 953 (2021)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/0 OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Regulatory Reform
2 Subcommittee
3 Representative Chambliss offered the following:
4
5 Amendment
6 Remove line 25 and insert:
7 license specified in paragraph (a), unless at any point during
8 the 2 year period the applicant was serving jail or prison time.
9 For purposes of this
191859 - h953-line25.docx
Published On: 3/16/2021 5:57:16 PM
Page 1 of 1
-
(")
(/)
I
co
CD
(0
_.,
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL#: HB 991 Petroleum Fuel Measuring Devices
SPONSOR(S): Busatta Cabrera
TIED BILLS: IDEN./SIM. BILLS: CS/SB 430
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform Subcommittee Thompson
I
2) Agriculture & Natural Resources Appropriations
Subcommittee
3) Commerce Committee
SUMMARY ANALYSIS
Chapter 525, F.S., which governs gasoline and oil inspections in the state, makes DACS responsible for
monitoring the accuracy of Florida's gas pumps, scales, price scanners, and other commercial weighing and
measuring devices. This includes the responsibility of making sure that measuring devices used in selling or
distributing petroleum fuel at wholesale and retail are working safely and properly.
DACS has the authority to issue warning letters, impose administrative fines , or revoke or suspend any
registration issued by DACS for violations of the chapter of law governing gasoline and oil inspections.
Recently, local governments have been adopting fuel pump security measures that are more restrictive than
the rules established by DACS related to reoccurring issues with skimmers at certain convenience stores.
The bill preempts to the state and DACS, the regulation of petroleum fuel measuring devices.
The bill removes DACS' authority to impose administrative fines and penalties for violations of petroleum fuel
measuring device requirements, unless the owner or operator of a petroleum fuel measuring device fails to
affix or install a security measure.
The bill may have an indeterminate fiscal impact on state and local government. See Fiscal Analysis and
Economic Impact Statement.
The effective date of the bill is July 1, 2021 .
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0991 .RRS .D0CX
DATE: 3/15/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A EFFECT OF PROPOSED CHANGES:
Present Situation
Petroleum Fuel Measuring Devices
The Division of Consumer Services (Division) within the Department of Agriculture and Consumer
Services (DACS) is the state's clearinghouse for consumer complaints, information and protection. The
Division regulates various businesses, such as charitable organizations and telemarketers. In addition,
the Division protects consumers and businesses from unfair and unsafe business practices across a
wide range of industries, including antifreeze, brake fluid, gasoline, liquefied petroleum (LP) gas,
pesticides, water vending machines, and weighing and measuring devices. 1
Chapter 525, F.S., which governs gasoline and oil inspections in the state, makes DACS responsible
for monitoring the accuracy of Florida's gas pumps, scales, price scanners, and other commercial
weighing and measuring devices to promote a fair and equitable marketplace and protect consumers.
This includes the inspection of retail gas stations to ensure that fuel dispensers are working safely and
properly. 2
DACS Inspections
Current law requires DACS to inspect all measuring devices used in selling or distributing petroleum
fuel at wholesale and retail, and to affix a sticker to each petroleum measuring device to signify that the
device has been inspected and the device owner is responsible for its proper use and maintenance. 3
Owners or managers of petroleum fuel measuring devices are responsible for ensuring accurate
measurement by the device within certain tolerances defined by the rule. An appropriate security seal
must be placed on all measuring devices found to be giving accurate measure within the tolerances
defined by DACS so that the metering adjustment cannot be changed without breaking the seal. 4
A measuring device found to be operating outside the tolerances defined by rule is deemed inaccurate
and DACS, at its discretion, must either:
• Give, in writing, the owner or manager of the measuring device a reasonable time to repair the
measuring device; or
• Condemn or prohibit further use of the measuring device by using an appropriate security seal
to obstruct operation without breaking the seal. 5
It is unlawful to operate a measuring device that has been condemned or prohibited from further use by
DACS, without the written consent from DACS. 6
It is also unlawful to:
• Install or operate a petroleum fuel measuring device in this state, which gives short measure.
1
The Florida Department of Agriculture and Consumer Services, http://www.freshfro mflo rida.com/Div isions-O ffices/Consumer-
Services (last visited Jan. 19, 2018).
2
Department of Agriculture and Consumer Services, Weights and Measures, https://www.fdacs.gov/Business-Services/Weights-and-
Measures (last visited Mar. 11 , 2021).
3
S. 525.07(1), F.S.
4
S. 525.07(3), F.S.
5 S. 525.07(4), F.S.
6
S. 525.07(5), F.S.
STORAGE NAME: h0991.RRS.DOCX PAGE: 2
DATE: 3/15/2021
• Break, cut, or remove any seal applied by DACS to a petroleum fuel measuring device or
container, unless broken by a DACS registered meter mechanic for repair and adjustment. After
repairs and adjustments are made, the adjusting mechanism must immediately be resealed by
the registered meter mechanic with a seal clasp bearing at least the name or initials of the
registered mechanic, and the mechanic must immediately notify DACS of this action. 7
Entities that adjust the accuracy of petroleum fuel measuring devices are required to use test measures
that have been calibrated with standards traceable to the National Institute of Standards and
Technology 8 within one year prior to the date of the adjustment for volumes of less than 500 gallons
and within three years before the date of the adjustment for volumes of 500 gallons or more. 9
Security Measures
Owners or managers of retail petroleum fuel measuring devices are required to have affixed or installed
onto the device a security measure to restrict the unauthorized access of customer payment card 10
information. The security measure must include one or more of the following:
• The placement of pressure-sensitive security tape over the panel opening that leads to the
scanning device 11 for the retail petroleum fuel measuring device in a manner that will restrict the
unauthorized opening of the panel.
• A device or system that will render the retail petroleum fuel measuring device or the scanning
device in the measuring device inoperable if there is an unauthorized opening of the panel.
• A device or system that encrypts the customer payment card information in the scanning
device.
• Another security measure approved by the department. 12
When a retail petroleum fuel measuring device is found to have no security measure, or with an altered
or damaged security measure, DACS is required to send a written notice of noncompliance to the
owner or manager. Upon written notice, they are given five calendar days to comply. After the fifth day
of noncompliance, DACS is authorized to prohibit further use of the device until a security measure is
installed, replaced, or repaired. In addition, DACS is authorized to take the measuring device out of
service if repeat violations are found on the same measuring device, 13 and may also seize any
skimming device 14 for use as evidence. 15
DACS is authorized to adopt rules to administer these requirements. 16
7
S. 525.07(6) and (7), F.S.
8
National Institute of Standards and Technology (NIST), About NIST, https://www.nist.gov/about-nist (last visited Mar. I, 2021 ). The
NIST, is a physical sciences laboratory and a non-regulatory agency of the United States Department of Commerce. Its mission is to
promote innovation and industrial competitiveness. NIST's activities are organized into laboratory programs that include nanoscale
science and technology, engineering, information technology, neutron research, material measurement, and physical measurement.
From 1901-1988, the agency was named the National Bureau of Standards.
9
S. 525.07(9), F.S.
10
S. 817 .625(1 )(b ), F.S., defines "payment card" as a credit card, charge card, debit card, or any other card that is issued to an
authorized card user and that allows the user to obtain, purchase, or receive goods, services, money, or anything else of value from a
merchant.
11
S. 817 .625(1 )(d), F .S., defines "scanning device" as a scanner, reader, or any other electronic device that may be used to access,
read, scan, obtain, memorize, or store, temporarily or permanently, 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.
The term does not include a skimming device.
12
525.07(10)(a), F.S.
13
525 .07(10)(b), F.S.
14 S. 817.625(l)(b), F.S.
15
Sees. 525.07(10), F.S.
16
R. 51-21.009, F.A.C.
STORAGE NAME: h0991.RRS.DOCX PAGE: 3
DATE : 3/15/2021
Administrative Fines and Penalties
For violations of the chapter of law governing gasoline and oil inspections, DACS has the authority to
issue warning letters, impose administrative fines, or revoke or suspend any registration issued by the
department. In addition to the authority to issue a warning letter, impose an administrative fine in the
Class II category, or revoke or suspend any DACS issued registration, violations are a first degree
misdemeanor. DACS is authorized to submit cases for prosecution to the state attorney, and bring an
action in circuit court to enjoin the violation. 17
According to DACS, in calendar year 2020:
• Forty-seven warning letters were issued to device owners who were found to have skimmers for
a second time.
• Fifty-six fines were levied against device owners who had previously received a warning letter,
but whose devices were again found to be compromised by skimmers.
• There were no revocations or suspensions.
• There were no civil cases brought seeking injunctions. 18
The Division of Consumer Services adheres to the following process during skimmer enforcement:
• First skimmer detected - Business is notified that a skimmer was located and offered free
training on skimmer detection.
• Second skimmer detected (within one year) - Business receives a warning letter including the
dates the skimmers were found, along with notice that if they do not put additional safeguards in
place, the finding of additional skimmers could result in a penalty.
• Third and subsequent skimmers detected (within one year) - The business is asked to provide
information on the changes to their security or pump-monitoring program aimed at reducing the
skimmer risk to consumers. If no additional steps were taken, an administrative complaint is
issued for violations of law, which may result in a fine. 19
Card Skimmers
Current law defines a "skimming device" as a self-contained device that is:
• 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
• 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. 20
According to DACS, card skimmers are small electronic devices illegally installed inside gas pumps that
collect information from the magnetic strip on a credit or debit card when it is used during a transaction.
They first began to appear in Florida in 2015 and have grown exponentially since. 21
Initially these devices were attached to card readers on the outside of the gas pump, but now
scammers are installing them inside the pump and often employing Bluetooth technology or integrated
cell phone components to transmit card and PIN information. 22
17
S. 525.16, F.S.
18
Blair Bodenmiller, Assistant Director of the Division of Consumer Services, Department of Agriculture and Consumer Services,
RE: HB 991 Skimmer Bill, (Mar. 4, 2021).
19 Id
20
S. 817.625(1)(b), F.S.
21
Department of Agriculture and Consumer Services, Card Skimmers, https://www.fdacs .gov/Consumer-Resources/Scams-and-
Fraud/Card-Skimmers (last visited Mar. 11, 2021).
22 Id.
STORAGE NAME: h0991 .RRS.DOCX PAGE: 4
DATE: 3/15/2021
DACS inspects gas pumps at about 9,000 gas stations, truck stops, and marinas each year, and has
removed over 3,400 skimmers since 2015. Skimmers can be undetectable to consumers because of
their location inside gas pumps, and have a potential for $1 million in fraudulent charges per skimmer. 23
Local Regulations
The Florida Constitution grants local governments broad home rule authority. Non-charter county
governments may exercise those powers of self-government that are provided by general or special
law. 24 Those counties operating under a county charter have all powers of self-government not
inconsistent with general law or special law approved by vote of the electors. 25 Likewise,
municipalities 26 have those governmental, corporate, and proprietary powers that enable them to
conduct municipal government, perform functions, provide services, and exercise any power for
municipal purposes, except as otherwise provided by law. 27
Currently, some local governments have adopted fuel pump security measures that are more restrictive
than the rules established by DACS in response to repeated skimming violations of certain
convenience stores. 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. 26 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. 29 Collier County, 3 Charlotte County,31 and the Village of Estero32 also have local fuel pump
ordinances.
State Preemption
State preemption precludes a local government from exercising authority in a particular area, and
requires consistency with the state constitution or state statute. 33 A local government enactment may
be found inconsistent with state law if:
• The Legislature has preempted a particular subject area to the state; or
• The local regulation conflicts with a state statute. 34
Florida law recognizes two types of preemption: express and implied. Express preemption requires a
specific legislative statement; it cannot be implied or inferred. 35 Express preemption of a field by the
Legislature must be accomplished by clear language stating that intent. 36 When local ordinances have
been enacted in the face of state preemption, the effect has been to find such ordinances null and
void. 37
23 Id.
24
Art. VIII, s. l(f), Fla. Const.
25
Art. Vlll, s. l(g), Fla. Const.
26
A municipality is a local government entity created to perform functions and provide services for the particular benefit of the
population within the municipality, in addition to those provided by the county. The term "municipality" may be used interchangeably
with the terms "town," "city," and "village."
27
Art. VIII, s. 2(b), Fla. Const. See also s. 166.021(1), F.S.
28
See Lee County, Florida Ordinance No. 19-09.
29 Id.
30
See Collier County, Florida Ordinance No. 18-55.
31
See Charlotte County, Florida Ordinance No. 19-026.
32
See Village ofEstero, Ordinance No. 18-25.
33
James R. Wolf and Sarah Harley Bolinder, The Effectiveness of Home Rule: A Preemption and Conflict Analysis, 83 Fla. B.J. 92
(June 2009), available at https://www.floridabar.org/the-florida-bar-joumal/the-effectiveness-of-home-rule-a-preemption-and-conflict-
analysis/.
34 Id.
35
See City of Hollywood v. Mulligan, 934 So. 2d 1238, 1243 (Fla. 2006); Phantom of Clearwater, Inc. v. Pinellas County, 894 So. 2d
IO 11, 1018 (Fla. 2d DCA 2005), approved in Phantom of Brevard, Inc. v. Brevard County, 3 So. 3d 309 (Fla. 2008).
36
Mulligan, 934 So. 2d at 1243.
37
See, e.g., Nat'/ Rifle Ass 'n ofAm., Inc. v. City ofS. Miami, 812 So.2d 504 (Fla. 3d DCA 2002).
STORAGE NAME: h0991.RRS.D0CX PAGE: 5
DATE: 3/15/2021
Implied preemption is a legal doctrine created to address those situations in which the courts may have
been concerned by the legislature's failure to expressly preempt areas, which, for all intents and
purposes, seemed dominated by the state. Findings of implied preemption are for a very narrow class
of areas in which the state has legislated pervasively. 38
Effect of the Bill
The bill preempts to the state and DACS, the regulation of petroleum fuel measuring devices.
The bill removes DACS' authority to impose administrative fines and penalties for violations of
petroleum fuel measuring device requirements, unless the owner or operator of a petroleum fuel
measuring device fails to affix or install a security measure.
B. SECTION DIRECTORY:
Section 1: Amends s. 525.07, F.S., relating to powers and duties of department; inspections;
unlawful acts.
Section 2: Amends s. 525.16, F.S., relating to administrative fine; penalties; prosecution of cases
by state attorney.
Section 3: Provides an effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
Indeterminate. Currently, DACS is unable to estimate a fiscal impact, if any, the proposed bill may
have on the Department. 39
2. Expenditures:
Indeterminate. Currently, DACS is unable to estimate a fiscal impact, if any, the proposed bill may
have on the Department. 40
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
Preempting local governments from enacting fuel pump security measures will prevent a local
government from imposing and collecting fees and fines relating to such regulation and
enforcement, which may have an indeterminate negative fiscal impact on local revenues,
depending on each local government's current practice of such regulation and enforcement.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
38
Wolf and Bolinder, supra note 17.
39 Department of Agriculture and Consumer Services, Agency Analysis ofHB 991 (2021), p. 2 (Mar. I, 2021).
40 Id.
STORAGE NAME: h0991.RRS.DOCX PAGE: 6
DATE: 3/15/2021
The bill may provide a more predictable and uniform regulatory framework for fuel pump security
measures in Florida. However, local jurisdictions that receive complaints from residents about having
their credit card number stolen at local gas stations may be unable to take action against gas stations
where frequent theft occurs. This may result in an increase in the illegal practice of card skimming.
D. FISCAL COMMENTS:
None.
Ill. COMMENTS
A CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to require counties or municipalities to take an action
requiring the expenditure of funds, reduce the authority that counties or municipalities have to raise
revenue in the aggregate, nor reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
B. RULE-MAKING AUTHORITY:
C. DRAFTING ISSUES OR OTHER COMMENTS:
Other Comments
According to DACS:
"Under the language of this bill, the Department would be stripped of its authority to impose
monetary administrative penalties against those who violate the law by failing to maintain
security measures after they are initially installed. Businesses that may currently be required to
use more costly security measures pursuant to local ordinances would be permitted to default
back to less expensive options, like security tape." 41
"This bill is likely to have a negative impact on the level of protection offered to consumers who
pay at the pump. By removing locals' authority to create more stringent requirements, this bill is
likely to reduce the amount of protection offered by some retailers. Similarly, removing the
Department's ability to impose monetary penalties against those who fail to maintain their
security measures will eliminate an additional incentive for doing more to protect consumers
from skimmers."42
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
N/A
41
Department of Agriculture and Consumer Services, Agency Analysis ofHB 991 (2021), p. 3 (Mar. I, 2021).
42
Id. at 4.
STORAGE NAME: h0991.RRS.D0CX PAGE: 7
DATE: 3/15/2021
FLORIDA H O U S E 0 F REPRESENTATIVES
HB 991 2021
1 A bill to be entitled
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; providing an
9 exception; amending s. 525.16, F.S.; exempting
10 department petroleum fuel measuring device rules from
11 enforcement under specified provisions; providing an
12 exception; providing an effective date.
13
14 Be It Enacted by the Legislature of the State of Florida:
15
16 Section 1. Paragraph (f) of subsection (10) of section
17 525.07, Florida Statutes, is amended to read:
18 525.07 Powers and duties of department; inspections;
19 unlawful acts.-
20 ( 10)
21 (f) The regulation of petroleum fuel measuring devices is
22 preempted to the state and to the department, which shall
23 enforce, and may adopt rules to administer, this subsectionL
24 however, s. 525.16 may not be used to enforce this subsection
25 unless the owner or operator of a petroleum fuel measuring
Page 1 of 2
CODING: Words stricken are deletions; words underlined are additions.
hb0991-00
FLORIDA H O U S E 0 F REPRESENTATIVES
HB 991 2021
26 device fails to affix or install a security measure.
27 Section 2. Subsection (6) is added to section 525.16,
28 Florida Statutes, to read:
29 525.16 Administrative fine; penalties; prosecution of
30 cases by state attorney.-
31 (6) This section may not be used to enforce rules adopted
32 p ursuant to s. 525.07 (10 ) (f) unless the owner or operator of a
33 petroleum fuel measuring device fails to affix or install a
34 security measure.
35 Section 3. This act shall take effect July 1, 2 021 .
Page 2 of 2
CODING: Words striokon are deletions; words underlined are additions.
hb0991-00
REGULATORY REFORM SUBCOMMITTEE
HB 991 by Rep. Busatta Cabrera
Petroleum Fuel Measuring Devices
AMENDMENT SUMMARY
March 17, 2021
Amendment 1 by Rep. Busatta Cabrera (strike-all):
• Preempts the regulation of petroleum fuel measuring devices to the state and to the
Department of Agriculture and Consumer Services (DACS).
• Prohibits DACS from issuing a fine regarding security measure requirements for retail
petroleum fuel measuring devices unless the owner or manager:
o Is operating without an affixed or installed security measure, or has a damaged
or altered security measure; and
Is found to be in violation four or more times in a year, or three times in 6
months; and
Has not implemented a security policy nor taken corrective action after
receiving notice from DACS.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 991 (2021)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/O OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Regulatory Reform
2 Subcommittee
3 Representative Busatta Cabrera offered the following:
4
5 Amendment (with title amendment)
6 Remove everything after the enacting clause and insert:
7 Section 1. Subsection (10) of section 525.07, Florida
8 Statutes, is amended to read:
9 525.07 Powers and duties of department; inspections;
10 unlawful acts.—
11 (10)(a) Each person who owns or manages a retail petroleum
12 fuel measuring device shall have affixed to or installed onto
13 the measuring device a security measure to restrict the
14 unauthorized access of customer payment card information. The
15 security measure must include one or more of the following:
299507 - h0991-strikea1.docx
Published On: 3/16/2021 6:12:09 PM
Page 1 of 4
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 991 (2021)
Amendment No. 1
16 1. The placement of pressure-sensitive security tape over
17 the panel opening that leads to the scanning device for the
18 retail petroleum fuel measuring device in a manner that will
19 restrict the unauthorized opening of the panel.
20 2. A device or system that will render the retail
21 petroleum fuel measuring device or the scanning device in the
22 measuring device inoperable if there is an unauthorized opening
23 of the panel.
24 3. A device or system that encrypts the customer payment
25 card information in the scanning device.
26 4. Another security measure approved by the department.
27 (b) The owner or manager of a retail petroleum fuel
28 measuring device without a security measure or with an altered
29 or damaged security measure, upon written notice from the
30 department of such noncompliance, shall have 5 calendar days to
31 comply with this subsection. After the fifth day of
32 noncompliance, the department may prohibit further use of the
33 retail petroleum fuel measuring device until a security measure
34 is installed, replaced, or repaired. A repeat violation found on
35 the same retail petroleum fuel measuring device will be cause
36 for the department to immediately take the measuring device out
37 of service.
38 (c) For purposes of this subsection, the terms "scanning
39 device" and "payment card" have the same meanings as defined in
40 s. 817.625.
299507 - h0991-strikea1.docx
Published On: 3/16/2021 6:12:09 PM
Page 2 of 4
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 991 (2021)
Amendment No. 1
41 (d) This subsection applies only to retail petroleum fuel
42 measuring devices that have a scanning device.
43 (e) The department may seize without warrant any skimming
44 device, as defined in s. 817.625, for use as evidence.
45 (f) The department shall enforce, and may adopt rules to
46 administer, this subsection.
47 (g) The regulation of petroleum fuel measuring devices is
48 preempted to the state and to the department.
49 (h) The department may not issue a fine in accordance with
50 s. 525.16, for violations of this subsection, unless the owner
51 or manager of a petroleum fuel measuring device is found to be
52 in violation of this subsection four or more times in a year, or
53 three times in 6 months, and has not adopted a security policy
54 to assist in preventing future alteration or damage to a
55 security measure, and the department determines that the owner
56 or manager has not taken measures to correct each violation
57 within 5 days of receiving each notice of an altered or damaged
58 security measure.
59 Section 2. Subsection (6) is added to section 525.16,
60 Florida Statutes, to read:
61 525.16 Administrative fine; penalties; prosecution of
62 cases by state attorney.—
63 (6) The department may not use this section to enforce s.
64 525.07(10) unless the owner or manager of a petroleum fuel
65 measuring device is found to be in violation of s. 525.07(10)
299507 - h0991-strikea1.docx
Published On: 3/16/2021 6:12:09 PM
Page 3 of 4
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 991 (2021)
Amendment No. 1
66 four or more times in a year, or three times in 6 months, and
67 has not adopted a security policy to assist in preventing future
68 alteration or damage to a security measure, and the department
69 determines that the owner or manager has not taken measures to
70 correct each violation within 5 days of receiving each notice of
71 an altered or damaged security measure.
72
73 -----------------------------------------------------
74 T I T L E A M E N D M E N T
75 Remove everything before the enacting clause and insert:
76 An act relating to petroleum fuel measuring devices;
77 amending s. 525.07, F.S.; preempting the regulation of
78 petroleum fuel measuring devices to the state and the
79 Department of Agriculture and Consumer Services;
80 prohibiting the department from enforcing security
81 measure violations relating to petroleum fuel
82 measuring devices; providing exceptions; amending s.
83 525.16, F.S.; prohibiting the department from
84 enforcing security measure violations relating to
85 petroleum fuel measuring devices; providing
86 exceptions; providing an effective date.
299507 - h0991-strikea1.docx
Published On: 3/16/2021 6:12:09 PM
Page 4 of 4
I
CD
.......
w
0
-...J
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL#: HB 1307 Telephone Solicitation
SPONSOR(S): Beltran
TIED BILLS: IDEN./SIM. BILLS: SB 1682
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform Subcommittee Thompson nstead ~
l
2) Civil Justice & Property Rights Subcommittee
3) Commerce Committee
SUMMARY ANALYSIS
Chapter 501, part IV, the Florida Telemarketing Act (FTA), requires non-exempt businesses engaged in
telemarketing and their salespeople to be licensed by the Florida Department of Agriculture and Consumer
Services (DACS) before operating in Florida. The law prohibits telephonic sales calls that use an automated
system for the selection or dialing of telephone numbers or the playing of a recorded message when a
connection is completed. However, the law allows the use of an automated telephone dialing system with live
messages if:
• The calls are made or messages given solely in response to calls initiated by the persons to whom the
automatic calls or live messages are directed;
• The telephone numbers selected for automatic dialing have been screened to exclude any telephone
subscriber who is included on the department's then-current "no sales solicitation calls" listing or any
unlisted telephone number; or
• The calls concern goods or services that have been previously ordered or purchased.
The bill removes the prohibition of telephonic sales calls that use an automated system for the selection or
dialing of telephone numbers, and the related exceptions, and replaces these provisions with a prohibition on
telephonic sales calls that involve an automated system for the selection or dialing of telephone numbers or the
playing of a recorded message when a connection is completed to a number called without the prior "express
written consent" of the called party. Such consent must include a clear and conspicuous disclosure informing
the called party that by executing the agreement, the called party authorizes to receive automated telephonic
sales calls, and is not required to sign or enter into such an agreement as a condition of purchasing any
property, goods, or services.
The bill authorizes a called party aggrieved by a violation to bring an action to:
• Enjoin the violation; and
• Recover actual damages or $500, whichever is greater.
The bill authorizes the court to increase the amount of the award up to three times the amount available in
cases involving willful and knowing violations.
The bill provides a rebuttable presumption that any telephonic sales call made to a Florida area code is
considered to be made to a resident of this state or to a person who is in this state at the time of the telephonic
sales call.
The bill is not expected to have a fiscal impact on state or local government.
The effective date of the bill is July 1, 2021 .
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1307.RRS.D0CX
DATE: 3/15/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Florida Telemarketing Act
Chapter 501, part IV, the Florida Telemarketing Act (FTA), requires non-exempt businesses engaged in
telemarketing and their salespeople to be licensed by the Florida Department of Agriculture and
Consumer Services (DACS) before operating in Florida. Certain exempt entities must have a valid
affidavit of exemption on file prior to operating in Florida. There are approximately 28 exemptions,
including , but not limited to, the following : soliciting for religious, charitable, political or educational
purposes, research companies, newspapers, book and video clubs , cable television, and persons or
companies with whom the consumer has a prior business relationship. 1
The FTA generally requires businesses that solicit the sale of consumer goods or services to:
• Be licensed;2
• Post a form of security; 3
• License all of their salespeople; 4 and
• Provide DACS with a list of all telephone numbers used to make sales calls. 5
An application for licensure as a telemarketer must include the applicant's identifying information, prior
experience in the field, criminal and administrative history, especially relating to fraud , theft, or unfair
and deceptive trade practices, phone numbers from which the telemarketer will make sales calls, and
parent or affiliate entity under which it will transact business, if applicable. 6
Additionally, a telemarketer applicant must submit with the application:
• A script that will be used by its salespersons during calls, or other related literature;
• The identity, address, date of birth, and alias of each of the applicant's principal officers,
directors, trustees, shareholders, owners, partners, office managers, and salespersons who are
employed by or affiliated with the applicant; and
• A $1,500 licensing fee. 7
In Florida, it is unlawful for telemarketers to:
• Accept novelty payments.8
• Employ or be affiliated with an unlicensed salesperson.
• Be employed by or affiliated with an unlicensed commercial telephone seller.
• Operate without a license.
• Make calls before 8 a.m. or after 9 p.m. local time at the called person's location.
• Fail to provide the call recipient with their name and telephone number. 9
1
S. 501.604, F.S.
2
S. 501.605, F.S.
3
Section 501.611, F.S., requires a $50,000 bond, irrevocable letter of credit issued for the applicant, or a certificate of deposit in favor
of the Department for payment on findings of fraud, misrepresentation, breach of contract, or other violation by the applicant.
4
Section 501.607, F.S.
5
Section 501.605, F.S.
6
S. 501.605(2), F.S.
7
S. 501.605(5)(b), F.S.
8
S. 501.603(8), F.S., defines a "novelty payment" as a payment method that does not have systematic monitoring and includes
remotely created checks, remotely created payment orders, cash-to-cash money transfers (such as Western Union) and cash reload
mechanisms (such as MoneyPak or Reloadit). Novelty payment methods are not systematically monitored, have little to no consumer
protection in the case of fraud or theft, and are used frequently in scams and other fraudulent activity.
STORAGE NAME: h1307.RRS .D0CX PAGE: 2
DATE: 3/15/2021
Violations of the FTA are punishable by a civil fine of up to $10,000 per violation, 10 and the imposition
of criminal penalties, including a third degree felony, and a second degree felony for repeated
violations. 11 DACS, and the office of the state attorney, have investigative authority, including the power
to subpoena witnesses, if a violation occurs. 12 Reasonable attorney's fees and costs may be awarded
to the prevailing party in a civil action as part of a judgement or administrative order. 13
Florida Do Not Call Act
DACS maintains the Florida Do Not Call Act, also known as the "Do Not Call" list, which prohibits
unsolicited phone calls and text messages from telemarketers 14 . Residents who do not wish to receive
sales calls may have their residential, mobile, or paging device telephone number included on this list. 15
Telephone solicitors 16 are prohibited from making telephonic sales calls to consumers who register for
the "Do Not Call" program. A "telephonic sales call" as a telephone call , text message, or voicemail
transmission to a consumer for the purpose of soliciting a sale of any consumer goods or services,
soliciting an extension of credit for consumer goods or services, or obtaining information that will or
may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit
for such purposes. 17
In addition to those consumers registered for the "Do Not Call" program, a telephone solicitor may not
call or text a consumer who previously communicated to the telephone solicitor that they do not wish to
be contacted. Businesses and charities are required to maintain a list of consumers who have made a
do-not-call request, and it is a violation to call a consumer who has asked to be placed on the
company's do-not-call list. 18
When a telephone number is made available through a caller ID service during a telephonic sales call,
the solicitor must ensure that the number is capable of receiving phone calls , and that the dialing of the
number will connect the call recipient with the telephone solicitor or the seller on behalf of which the
phone call was placed .19
Anyone who receives an unsolicited sales call can report the call to FDACS using the online Do Not
Call Complaint Form. 20
A telephone solicitor who violates the provisions of Florida's "Do Not Call" program are currently subject
to an injunction and a civil penalty 21 with a maximum fine of $10,000 per violation, or an administrative
fine 22 with a maximum of $1,000 per violation, in addition to the consumer's attorney fees and costs.
9
S. 501.616, F.S.
10
S. 501.619, F.S.
11
s. 50 l.623 , F.S.
12
S. 501.617, F.S.
13
S. 501.621, F.S.
14
The Florida Do Not Call List can be found at: https://www.fldnc.com/.
15
Sees . 501.059, F.S., FDACS, Florida DO NOT CALL Program, https://www.fldnc.com/ About.aspx (last visited 1/2/2018). The
Florida No Sales Solicitation Act added specific language to prohibit unwanted sales texts.
16
Section 50I.059(l)(f), F.S., defines "Telephone solicitor" as "a natural person, firm, organization, partnership, association, or
corporation, or a subsidiary or affiliate thereof, doing business in this state, who makes or causes to be made a telephonic sales call,
including, but not limited to, calls made by use of automated dialing or recorded message devices."
17
S. 501.059(1 )(g), F.S.
18
S. 501.059(5), F.S.
19
S. 50l.059(8)(c), F.S.
2
°FDACS, http://www.freshrromtlorida.com/Consumer-Resources/Florida-Do-Not-CalJ (last visited January 11, 2017).
21
s. 501.059(9)(a), F.S.
22
s. 50l.059(9)(b), F.S.
STORAGE NAME: h1307.RRS.DOCX PAGE: 3
DATE: 3/15/2021
Federal Telemarketers and National Do Not Call Registry
Although the states were the first to address consumers' requests to stop unwanted telemarketing
calls 23, the federal government soon followed with a National Do Not Call Registry in 2003. 24 In July
2003, the federal government took action and issued a report and order establishing the National Do
Not Call registry. The national registry covers all telemarketers (with the exception of certain nonprofit
organizations), and applies to both interstate and intrastate calls. The registry is administered by the
FTC. To reduce the number of hang-up and dead air calls consumers experience, the Commissions
telemarketing rules also contain restrictions on the use of autodialers and requirements for transmitting
caller ID information.
As the National Do Not Call Registry has gained popularity, some states have decided to forego the
expense of maintaining their own lists. As of August 2016, only 12 states maintained their own Do Not
Call lists: Colorado, Florida, Indiana, Louisiana, Massachusetts, Mississippi, Missouri, Oklahoma,
Pennsylvania, Tennessee, Texas and Wyoming. 25 Thirty-one states have officially adopted the National
Do Not Call Registry as their Do Not Call list.
In an effort to address a growing number of telephone marketing calls, Congress enacted in 1991 the
Telephone Consumer Protection Act (TCPA). The TCPA restricts the making of telemarketing calls and
the use of automatic telephone dialing systems and artificial or prerecorded voice messages. The rules
apply to common carriers as well as to other marketers. In 1992, the Commission adopted rules to
implement the TCPA, including the requirement that entities making telephone solicitations institute
procedures for maintaining company-specific do-not-call lists. 26
In July 2015, the FCC established rules indicating that telephone carriers can block unwanted calls at
the request of consumers. 27 Following the FCC's ruling, the National Association of Attorneys General
called upon the major telephone carriers to do more to provide these services to consumers. 28
Currently there are a number of call-blocking applications that provide some relief from unwanted and
spam calls. 29
On Nov. 16, 2017, the FCC adopted new rules to allow voice service providers to proactively block
certain types of robocalls that are likely to be fraudulent because they come from certain types of
phone numbers, including those that do not or cannot make outgoing calls. For example, perpetrators
have used IRS phone numbers that don't dial out to impersonate the tax agency, informing the people
who answer that they are calling to collect money owed to the U.S. government. Such calls appear to
be legitimate to those who receive them and can result in fraud or identity theft. Service providers now
can block such calls, as well as calls from invalid numbers, like those with area codes that don't exist,
from numbers that have not been assigned to a provider, and from numbers allocated to a provider but
not currently in use. 30
FCC rule 47 C.F.R. § 64.1601, provides that telemarketers must comply with the following:
23
At least 28 states, starting with Florida in 1987, have implemented Do Not Call registries.
24
Federal Trade Commission, National Do Not Call Registry, https://www.donotcall.gov/ (last visited Mar. 12, 2021).
25 National Association of Attorneys General, Do Not Call: The History of Do Not Call and How Telemarketing Has Evolved,
NAGTRI Journal, Vol. I No . 4., at Note 5.
26
The FCC, Telemarketing and Robocalls, (last visted January 11, 2018) https://www.fcc.gov/general/telemarketing-and-robocalls.
27
Declaratory Ruling and Order, In the Matter of Rules and Regulations Implementing the Telecommunications Consumer Protection
Act of 1991, 30 FCC Red. 7961 (July 10, 2015).
28
National Association of Attorneys General, Attorneys General Urge Phone Companies to Offer Technology that Blocks Unwanted
Sales Calls or Texts, http://www.naag.org/naag/media/naag-news/attorneys-general-urge-federal-government-to-allow-phone-
companies-to-block-unwanted-sales-calls-to-customers.php (last visited January 12, 2017).
29
CTIA, The Wireless Association, How to Stop Robocalls, https://www.ctia.org/consumer-tips/roboca lls.
°
3
FCC, Stop Unwanted Calls and Texts, https://www.fcc.gov/consumers/gu ides/stop-unwanted-calls-and-texts (last visited January
I l, 2018).
STORAGE NAME: h1307.RRS .D0CX PAGE: 4
DATE: 3/15/2021
"(e) Any person or entity that engages in telemarketing, as defined in section 64.1200(f)(10)
must transmit caller identification information.
(1) For purposes of this paragraph, caller identification information must include either CPN or
ANI, and, when available by the telemarketer's carrier, the name of the telemarketer. It shall not
be a violation of this paragraph to substitute (for the name and phone number used in, or billed
for, making the call) the name of the seller on behalf of which the telemarketing call is placed
and the seller's customer service telephone number. The telephone number so provided
must permit any individual to make a do-not-call request during regular business hours.
(2) Any person or entity that engages in telemarketing is prohibited from blocking the
transmission of caller identification information.
(3) Tax-exempt nonprofit organizations are not required to comply with this paragraph."
With regard to telephone carriers, the FCC allows carriers to offer their customers external call-blocking
apps on their landlines and allows carriers to block certain illegal robocalls directly. In addition, in
December 2019, Congress enacted the "TRACED Act" to aid enforcement efforts between law
enforcement agencies and the private sector on traceback issues, and required the FCC to issue rules
"for the registration of a single consortium that conducts private-led efforts to trace back the origin of
suspected unlawful robocalls ." In July 2020, the FCC designated the USTelecom-led Industry
Traceback Group (ITG) as the Official Consortium for coordinating industry-led efforts to trace back the
origin of suspected unlawful robocalls .31
According to the ITG's first annual report, in 2019, over 100 companies participated in over 1,000 ITG
traceback investigations, implicating more than 10 million illegal robocalls and resulting in more than 20
subpoenas and/or civil investigative demands from federal and state enforcement agencies.32
The ITG reported in a letter3 3 to the FCC on November 13, 2020 that about 100 providers have failed to
cooperate with the ITG, including less than 30 that are based in the United States. The ITG encouraged
the FCC to bring aggressive enforcement against robocallers and voice service providers that routinely
refuse to participate in the traceback process. 34
In their Fourth Report and Order on Advanced Methods to Target and Eliminate Unlawful Robocalls 35
released December 30, 2020, the FCC required "all voice service providers to respond to traceback
requests from the Commission, civil and criminal law enforcement and the Consortium."
Constitutionality of Do Not Call Registries
Do Not Call registries have been subject to numerous state and federal lawsuits challenging their
constitutionality. These suits have failed and the National Registry upheld. The Courts have found that
the Do Not Call Registry is a reasonable restriction on commercial speech and that the FTC is
authorized to promulgate rules for the registry. The court stated, "the do-not-call registry prohibits only
31
USTelecom The Boradband Association, FCC Names USTelecom's Industry Traceback Group as Official Robocall Traceback
Consortium, https://www.ustelecom.org/fcc-names-ustelecoms-industry-traceback-group-as-official-robocall-traceback-conso1tium/
(last visited Mar. 15, 2021 ).
32
InsideArm, The Latest Developments in the World of Call Delivery, https://www.insideann.com/news/00047073-latest-
developments-world-call-de li very/ (last visited Mar. 15, 2021).
33
USTelecom, Enforcement Bureau Requests Information on the Status of Private-Led
Traceback Efforts of Suspected Unlawful Robocalls, EB Docket No. 20-195, Nov. 13, 2020,
https://docs.fcc.gov/public/attachments/ DOC-368957 A2.pdf (last visited Mar. 15 , 2021 ).
34
InsideArm, The Latest Developments in the World of Call Delivery, https://www.insidearm.com/news/00047073-latest-
deve lopments-world-calJ-delivery/ (last visited Mar. 15, 2021).
35
FCC, Fourth Report and Order, Dec. 29, 2020, https://docs.fcc.gov/publio/attachments/ FCC-20-187 A I .pdf (last visited Mar. 15,
2021).
STORAGE NAME: h1307.RRS.D0CX PAGE: 5
DATE: 3/15/2021
telemarketing calls aimed at consumers who have affirmatively indicated that they do not want to
receive such calls and for whom such calls would constitute and invasion of privacy." Thus, the
government may have a role in restricting the ability of a telemarketer to reach a household via
telephone and because the government left the ultimate decision of whether or not to be placed on the
registry up to the individual, the government itself did not restrict the First Amendment rights of the
solicitor. 36
Claims of preemption have also been unsuccessful. The TCPA's non-preemption clause 37 , often
referred to as the savings clause, has been relied upon by Courts to uphold state's Do Not Call
Registries. The clause reads in part: "Nothing in this section or in the regulations prescribed under this
section shall preempt any State law that imposes more restrictive intrastate requirements or regulation
on, or which prohibits .... " The clause indicates specific types of actions that a state may prohibit or
place more restrictive regulations on, such as sending unsolicited advertisements via fax, regulation of
the use of automatic dialing systems and prerecorded messages, and the making of telephone
solicitations. 38
The TPCA is silent on the states' ability to place regulations that are more stringent than the TCPA
requirements for interstate calls. 39 However, at least one Court has held that state regulations and
prohibitions of telemarketing can cross state lines.40
Caller ID and "Spoofing"
"Spoofing" is the practice of altering or manipulating the caller ID information that is received in
conjunction with a telephone call. In the past, caller ID services were not commonplace and spoofing
required special equipment or a relatively high degree of technical sophistication. However, advances
in technology, such as the proliferation of cellular phones, cell phone applications, and the widespread
availability of Voice over Internet Protocol (VoIP) allows anyone to inexpensively spoof their caller ID
using the services of a third-party spoofing provider. 41 For example, one such spoofing provider allows
a consumer to download an app on their smartphone, purchase credits towards call time, and simply
input the number that they want displayed on the receiving end in order to place an untraceable,
spoofed call. 42
In response to the growing practice of spoofing, Congress amended the TCPA to add the Truth in
Caller ID Act of 2009. Under the Act, and FCC rules, any person or entity is prohibited from transmitting
false or misleading caller ID information "with the intent to defraud, cause harm, or wrongly obtain
anything of value", and carries a penalty of up to $10,000 for each violation. 43 However, spoofing is not
illegal when no harm is intended or caused, or if the caller has legitimate reasons to hide their
information, such as law enforcement agencies working on cases, victims of domestic abuse or doctors
who wish to discuss private medical matters. 44
36
Mainstream Marketing Services Inc v. Federal Trade Commission, 358 F.3d 1228 (I 0th Cir. 2004).
37
47 U.S.C . § 227(t)(l).
38
National Association of Attorneys General, Do Not Call: The History of Do Not Call and How Telemarketing Has Evolved,
NAGTRI Journal, Vol. 1 No. 4.
39
47 U.S.C. s. 227 (t)(l).
40
See Patriotic Veterans, Inc. v. Indiana, 736 F.3d 1041 at 1044-45 (7th Cir. 2013) and Patriotic Veterans, Inc. v. State ofIndiana, No.
16-2059 (7 1h Cir. 2017)( "Preventing automated messages to persons who don't want their peace and quiet disturbed is a valid time,
place, and manner restriction.").
41
See FCC 11-100, Rules and Regulations Implementing the Truth in Caller ID Act of 2009, WC Docket No. 11-39, (June 22, 2011),
at 9116, available at http ://apps. fcc.gov/edocs public/attachmatch/FCC-11-1 OOA I Rcd.pdf.
42
Paul Szoldra, It's surprisingly easy for a hacker to call anyone from your personal phone number, BUSINESS INSIDER (March 3,
2016), http://www. businessinsider.com/phone-number-spoofing-2016-2.
43
47 U.S.C. § 227 (e).
44
FCC, Spoofing and Caller ID, https://www.fcc.gov/consumers/guides/spoofing-and-caller-id (last visited 1/2/2018).
STORAGE NAME: h1307.RRS.DOCX PAGE: 6
DATE: 3/15/2021
In 2008, Florida passed its own anti-spoofing legislation, The Florida Caller ID Anti-Spoofing Act
(2008). 45 The Act prohibits any person from :
• making a call with knowledge that false information was entered into a telephone caller ID
system with the intent to deceive, defraud, or mislead the call's recipient; and
• entering false information into a telephone caller ID system "with the intent to deceive,
defraud, or mislead" the call's recipient.
However, a U.S. District Court in Miami found that Florida's Caller ID Anti-Spoofing Act (2008) violated
the Commerce Clause of the United State Constitution because it had the effect of controlling spoofing
practices that took place entirely outside of the state, wherein individuals or companies could not
ascertain what telephone numbers are subject to Florida law, and would have to subject all of their call
practices to Florida law to avoid liability.46
The Commerce Clause of the U.S. Constitution bars state laws that control conduct outside the state's
boundaries, regardless of whether the Legislature intended the law's extraterritorial reach. 47 Similarly,
in 2011, a federal court in Mississippi struck Mississippi's anti-spoofing law, which was substantially
similar to Florida's. 48
Spam Robocalls
According to the American Association of Retired Persons (AARP), robocalls have become an
epidemic. YouMail, a company that provides call-blocking and call-management services, estimates
that there were 58.5 billion robocalls in the U.S. in 2019 and that 44 percent of them were placed by
scammers. 49
A February 2021 survey found that 46 percent of Americans reported receiving spam phone calls on
their cell phone every day, and another 24 percent receiving them multiple times per week. 50
Scammers often use caller ID spoofing to mask their true location and make it appear the call is from a
legitimate or local number to raise the odds of the called party to answer. What follows is a robotic
voice on the other end claiming to represent a utility, a name-brand company or a government agency
(Social Security and the Internal Revenue Service are popular poses). It might offer a free cruise,
cheap health insurance or a low-interest loan. Answering and/or engaging with the call can lead to a
live scammer, indicating they have hit on a "live" number, and they will call it repeatedly. 51
It is important to note that many robocalls are legal. The Federal Communications Commission (FCC)
allows them for some informational or noncommercial purposes, such as polling, political campaigning
and outreach by nonprofit groups.
45
s. 817.487, F.S. (2008).
46
Te/Tech Systems, Inc. v. McCollum, No. 08-61664-CIV-MARTINEZ-BROWN (S.D. Fla. Filed Oct. 16, 2008).
47
Healy v. Beer Institute, Inc., 491 U.S. 324, 336 (1989).
48
Te/Tech Systems, Inc. v. Barbour, 866 F.Supp.2d 571 (S.D. Miss 2011), ajf'd sub nom Te/tech Systems, Inc. v. Bryant, 702 F. 2d
232 (5th Cir. 2012).
49
American Association of Retired Persons, Robocalls, https://www.aarp.org/money/scams-fraud/info-
20.19/roboca lls.html?CMP=KNC-DSO-Adobe-Google-FRD-Ongoing-Robocalls-NonBrand-Exact-
Robocalls&gclid=EAlalOobChMilvmq 4Sr7w1V.FYv1Ch2RAwjqEAA YAiAAEgJD4vD BwE&gclsrc=aw.ds (last visited Mar. 12,
2021).
50
Simon van Zuylen-Wood, How robo-callers outwitted the government and completely wrecked the Do Not Call list, THE
WASHINGTON POST (Jan. 11, 2018), https://www.wash ingtonpost.com/ li festyle/magazi ne/how-robo-call-moguls-outwitted-the-
govemment-and-comp letely-wrecked-the-do-not-call-list/2018/0 l/09/52c769b6-df7a-1 l e7-bbd0-
9dtb2e37492a story.htm l?utm term= .8a6e6ea55f32.
51
American Association of Retired Persons, Robocalls, https://www.aarp.org/money/scams-fraud/info-
20 19/robocalls.html?CMP=KNC-DSO-Adobe-Google-FRD-Ongoing-Roboca lls-NonBrand-Exact-
Robocalls&gcli.d=EAlaIOobChM i lvmq 4Sr7wIVFYv1Ch2RAwjqEAAYA iAAEgJD4vD BwE&gclsrc=aw.ds (last visited Mar. 12,
2021).
STORAGE NAME: h1307.RRS.D0CX PAGE: 7
DATE: 3/15/2021
Advances in technology have magnified fundamental flaws in the American phone system enabling
unrelenting robocalls from untraceable origins. As a result, it is incredibly profitable to use spam calls to
drive business whether the caller is a scammer or an actual business using telemarketing to increase
sales. 52
The TCPA prohibits a telemarketer from using an automatic telephone dialing system (ATOS) to place
a call or send a text message to a cell phone without the recipient's "prior express consent." 53 The type
of consent depends on the nature of the call or text. Consent generally can be revoked by any
reasonable method. However, some courts recently have considered whether revocation may be
restricted in circumstances where the consent is included on a bilateral agreement. 54
Consent and Revocation
There are two types of prior consent provided under the TCPA. Prior express consent is required to
place autodialed, non-solicitation calls or texts to a cell phone. Prior express written consent, a
heightened form of consent, must be evidenced by a written agreement signed by the call recipient and
is required in order to place autodialed telemarketing/advertising calls or texts to a cell phone. The
written agreement must include a clear and conspicuous disclosure informing the consumer signing
that (1) by signing the agreement, the consumer is authorizing autodialed telemarketing or advertising
calls or texts, and (2) the consumer is not required to sign the agreement as a condition of purchasing
any property, goods, or services. 55
Prior express consent: can be written or verbal. Voluntarily providing one's cellular number also
constitutes prior express consent where:
• The individual gives "prior express consent" to be called or texted at the number provided;
• The individual has provided their number to the party calling or texting them; and
• There is some relation between the communications and the reason for which an individual
provided their number. 56
Prior express written consent: is required for calls or texts to cell phones that introduce an
advertisement, 57 or constitute "telemarketing" 58 and are sent using an ATOS. The TCPA's advertising
prong merely requires introducing at the most basic level the commercial availability of a service. In
similar fashion, telemarketing occurs when the context of a text or call indicates that it was initiated and
transmitted to a person for promoting property, goods, or services. Neither the TCPA nor its
implementing regulations require an explicit mention of a good, product, or service where the
implication of an improper purpose is clear from the context. 59
Revocation of consent: is controlled by the consenting party, and may be communicated orally or in
writing by any reasonable means. However, where consent is contractually provided, as in credit
52
Simon van Zuylen-Wood, How robo-callers outwitted the government and completely wrecked the Do Not Call list, THE
W ASHrNGTON POST (Jan. 11, 2018), https://www.washingtonpost.com/l ifestyle/magazine/how-robo-ca!l-moguls-outwitted-the-
govemment-and-completely-wrecked-the-do-not-call-list/2018/0 l /09/52c769b6-df7a-1 l e7-bbd0-
9dtb2e37492a story.html?utm term=.8a6e6ea55f32.
53
47 U.S.C. § 227(b)(l)(A)(iii).
54
The National Law Review, Consent and Revocation Under the TCPA, https://www.natlawreview.com/prinVarticle/consent-and-
revocation-under-tcpa (last visited Mar. 4, 2021 ).
55 Id.
56
Federal Communications Commission, Rules & Regulations Implementing the TCP Act of 1991 et al., 30 FCC Red at 7991-92.
57
4 7 C.F.R. § 64. l 200(f)(l ), defines an "advertisement" as "any material advertising the commercial availability or quality of any
property, goods, or services," and "telemarketing" is defined as "the initiation of a telephone call or message for the purpose of
encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person."
58
47 C.F.R. § 64.1200(f)(l2).
59
The National Law Review, Consent and Revocation Under the TCPA, https://www.natlawreview.com/print/article/consent-and-
revocation-under-tcpa (last visited Mar. 4, 2021 ).
STORAGE NAME: h1307.RRS.D0CX PAGE: 8
DATE: 3/15/2021
agreements for example, the parties can bargain to require mutuality or particular revocation methods.
Recently, a number of courts have addressed whether a consumer may unilaterally revoke consent
when it is a term in a bargained-for contract. 60
In 2017, the Second Circuit Court of Appeals held that a consumer may not unilaterally revoke consent
in a bargained-for, bilateral contract. 61 The court based its decision in "black-letter" contract law,
referring to a fundamental aspect of contractual relationships that one party cannot alter or revoke a
term of a bilateral agreement without the other party's consent. The court found that a consumer,
having consented to be contacted via an auto-dialer, could not unilaterally revoke consent without the
caller's permission. Notably, the court distinguished case law from the Third and Eleventh Circuits,
where consumers retained their ability to revoke consent because it was given in credit applications,
rather than as part of a bilateral contract. 62
In 2018, the Middle District of Florida held that consent provided by contract cannot be unilaterally
revoked. 63 The court noted that no provision in the TCPA indicates that contractually-granted consent
can be unilaterally revoked where it would contradict black-letter law. The court held that a consumer
who has consented to auto-dialed communication in a contract for services cannot later revoke such
consent. 64
Some courts have rejected the argument that consent is irrevocable.
In 2018, the Middle District of Tennessee adopted the general rule that consumer consent may be
revoked at any time by "any reasonable means." 65 The court held that consumers retain the ability to
revoke their prior consent despite having a bilateral agreement with the caller.
Another ruling held that the court should have relied upon binding Eleventh Circuit precedent allowing
for revocation of consent in the absence of a contractual restriction on the means by which a consumer
may revoke consent. 66
While consent can and most often occurs between the sender and recipient, courts have also
recognized that consent can be communicated through intermediaries. An intermediary can convey
consent but cannot provide consent for the recipient. 67
In December, 2020, the U.S. Supreme Court heard oral arguments in a landmark case that will
determine whether consumers can sue a company for using an ATOS to text or call the consumers at a
phone number saved in the company's system. At issue is the meaning of the TCPA's prohibition on
using an ATOS to transmit communications to cell phones. The question before the Supreme Court is
"whether the definition of ATOS in the TCPA encompasses any device that can 'store' and
'automatically dial' telephone numbers, even if the device does not use a random or sequential number
generator. "68
Noah Duguid originally sued Facebook for violating the TCPA by sending unsolicited login notifications
to his cell phone via text message. Facebook's legal team argues that an ATOS , under the law, only
60 Id.
61
Reyes v. Lincoln Auto. Fin. Servs. , 861 F.3d 51 , 53 (2d Cir. 2017).
62
The National Law Review, Consent and Revocation Under the TCPA, bttps://www.natlawreview.com/print/article/consent-and-
revocation-under-tcpa (last visited Mar. 4, 2021 ).
63
Medley v. Dish Network, LLC, Case No. 8:l6-cv-2534-T-36TBM, 2018 WL 4092120, at *IO (M.D. Fla. Aug. 27, 2018).
64
The National Law Review, Consent and Revocation Under the TCPA, https://www.natlawreview.com/print/article/consent-and-
revocation-under-tcpa (last visited Mar. 4, 2021 ).
65
Ammons v. Ally Fin., Inc., Case No. 3: 17-cv-00505, 2018 WL 3134619, at *15 (M.D. Tenn. June 27, 2018),
66 Few v. Receivables Performance Mgmt. , Case No. 1:17-CV-2038-KOB, 2018 WL 5923765 at *l (N.D. Ala. Nov. 13, 2018)
67 The National Law Review, Consent and Revocation Under the TCPA, bttps://www.natlawreview.com/print/article/consent-a.nd-
revocation-under-tcpa (last visited Mar. 4, 2021 ).
68
Facebook, Inc., Petitioner vs. Noah Duguid, et al., U.S ., No. 19-511.
STORAGE NAME: h1307.RRS.DOCX PAGE: 9
DATE: 3/15/2021
calls numbers randomly or sequentially, and as a result their use of a machine to automatically contact
phone numbers through a dialing system does not technically count as an ATOS because they are
calling from a list. Ouguid's argument is the law specifically stipulates consent, which necessitates a
list, and as a result, the system is still an ATOS. 69
Currently, the TCPA rules require telemarketers to :
• Obtain prior express written consent from consumers before robocalling them;
• No longer allow telemarketers to use an "established business relationship" to avoid getting
consent from consumers when their home phones; and
• Require telemarketers to provide an automated, interactive "opt-out" mechanism during each
robocall so consumers can immediately tell the telemarketer to stop calling. 70
The TCPA includes a private right of action that carries substantial potential penalties. 71 A caller who
places a call to a cell phone without consent using an ATOS is subject to an automatic $500 statutory
penalty per call. The penalty to $1,500 per call if the court finds that the defendant willfully or knowingly
committed the violation .72
The Florida telephone solicitation law prohibits telephonic sales calls that use an automated system for
the selection or dialing of telephone numbers or the playing of a recorded message when a connection
is completed. 73
However, the law allows the use of an automated telephone dialing system with live messages if:
• The calls are made or messages given solely in response to calls initiated by the persons to
whom the automatic calls or live messages are directed;
• The telephone numbers selected for automatic dialing have been screened to exclude any
telephone subscriber who is included on the department's then-current "no sales solicitation
calls" listing or any unlisted telephone number; or
• The calls concern goods or services that have been previously ordered or purchased. 74
Express written consent does not appear to be addressed in the Florida Telemarketing Act.
Effect of the Bill
The bill removes the provisions of telephone solicitation law that prohibit telephonic sales calls that use
an automated system for the selection or dialing of telephone numbers, removes the related
exceptions, and instead, provides the following measures addressing telephone solicitations.
The bill prohibits telephonic sales calls that involve an automated system for the selection or dialing of
telephone numbers or the playing of a recorded message when a connection is completed to a number
called without the prior express written consent of the called party.
The bill defines "called party" as a person who is the regular user of the telephone number that is
delivered a telephonic sales call.
69
Business Insider, THE ANNOYANCE ENGINE: Spam roboca/ls became profitable scams by exploiting the phone system, but you
can stop them (Mar. 3, 2021), https://www.business insider.com/why-so-many-spam-roboca lls-how-to-stop-them-202 l-3?amp (last
visited Mar. 7, 2021).
7
°Federal Communications Commission, FCC Actions on Robocalls, Telemarketing, https://www .Jcc.gov/general/telemarketing-and-
robocalls (last visited Mar. 4, 2021 ).
71
47 u.s.c. §227(b)(3).
72
Id. at §227(b)(3)(B)-(C).
73
S. 501.059(8), F.S.
14 Id.
STORAGE NAME: h1307.RRS.D0CX PAGE: 10
DATE: 3/15/2021
The bill defines "express written consent" as an agreement bearing the electronic or digital signature of
a called party that states the telephone number to which the called party authorizes a telephonic sales
call to be delivered and clearly authorizes a person to make or knowingly allow a telephonic sales call
to be made using an automated system for selecting or dialing telephone numbers, playing a recorded
message when a connection is completed to a telephone number called, transmitting a text message,
or transmitting a prerecorded voicemail.
The bill specifies that express written consent must include a clear and conspicuous disclosure
informing the called party that:
• By executing the agreement, the called party authorizes a person to make or knowingly allow a
telephonic sales call to be made using an automated system for selecting or dialing telephone
numbers, playing a recorded message when a connection is completed to a telephone number
called, transmitting a text message, or transmitting a prerecorded voicemail.
• The called party is not required to sign the agreement or consent to enter into such an
agreement as a condition of purchasing any property, goods, or services.
The bill authorizes a called party aggrieved by a violation of this subsection to bring an action to:
• Enjoin such violation; and
• Recover actual damages or $500, whichever is greater.
If the court finds that the defendant willfully or knowingly violated these provisions, the bill authorizes
the court to, in its discretion, increase the amount of the award up to three times the amount available.
The bill provides a rebuttable presumption that any telephonic sales call made to a Florida area code is
considered to be made to a resident of this state or to a person who is in this state at the time of the
telephonic sales call .
B. SECTION DIRECTORY:
Section 1: Amends s. 501 .059, F.S., relating to telephone solicitation.
Section 2: Provides an effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
STORAGE NAME: h1307.RRS.D0CX PAGE: 11
DATE: 3/15/2021
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may have a negative fiscal impact on legitimate telemarketers to the extent they will be in
violation of the new restrictions.
The bill may protect consumers from unwanted and fraudulent telephone solicitations.
D. FISCAL COMMENTS:
None.
Ill. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill does not appear to create a need for rulemaking or rulemaking authority.
C. DRAFTING ISSUES OR OTHER COMMENTS:
Drafting Issues
The bill appears to create a heightened form of consent that would prohibit automated calls without
express written consent of the called party. The way the bill is currently drafted could make it more
difficult for consumers to revoke their consent. The sponsor has agreed to an amendment indicating
how the called party can withdraw consent to alleviate this problem.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
NIA
STORAGE NAME: h1307.RRS .DOCX PAGE: 12
DATE: 3/15/2021
FLORIDA H O U S E 0 F R E P R E S E N T A T I V E S
HB 1307 2021
1 A bill to be entitled
2 An act relating to telephone solicitation; amending s.
3 501.059, F.S.; prohibiting certain telephonic sales
4 calls without the prior express written consent of the
5 called party; providing definitions; providing
6 requirements for consent agreements; providing civil
7 remedies; providing a rebuttable presumption for
8 telephonic sales calls made to specified area codes;
9 removing provisions authorizing the use of certain
10 automated telephone dialing systems; revising
11 provisions for the award of attorney fees and costs;
12 providing an effective date.
13
14 Be It Enacted by the Legislature of the State of Florida:
15
16 Section 1. Subsections (8) and (10) of section 501.059,
17 Florida Statutes, are amended to read:
18 501.059 Telephone solicitation.-
19 (8) (a) ~ Ne person may not shall make or knowingly allow a
20 telephonic sales call to be made if such call involves an
21 automated system for the selection or dialing of telephone
22 numbers or the playing of a recorded message when a connection
23 is completed to a number called without the prior express
24 written consent of the called party.
25 (b) As used in this subsection, the term:
Page 1 of 6
CODING: Words stricken are deletions; words underlined are additions.
hb1307-00
.F L O R I D A H O U S E 0 F REPRESENTATIVES
HB 1307 2021
26 1. "Called party" means a person who is the regular user
27 of the telephone number that is delivered a telephonic sales
28 call.
29 2. "Express written consent" means an agreement bearinq
30 the electronic or digital signature of a called party that
31 states the telephone number to which the called party authorizes
32 a telephonic sales call to be delivered and clearly authorizes a
33 person to make or knowingly allow a telephonic sales call to be
34 made using an automated system for selecting or dialing
35 telephone numbers, playing a recorded message when a connection
36 is completed to a telephone number called, transmitting a text
37 message, or transmitting a prerecorded voicemail .
38 (c) The express written consent must include a clear and
39 conspicuous disclosure informing the called party that :
40 1. By executing the agreement, the called party authorizes
41 a person to make or knowingly allow a telephonic sales call to
42 be made using an automated system for selecting or dialing
43 telephone numbers, playing a recorded message when a connection
44 is completed to a telephone number called, transmitting a text
45 message, or transmitting a prerecorded voicemail.
46 2. The called party is not required to sign the agreement
47 or consent to enter into such an agreement as a condition of
48 purchasing any property, goods, or services.
49 (d)l. A called party aggrieved by a violation of this
50 subsection may bring an action to:
Page 2 of 6
CODING: Words stricken are deletions; words underlined are additions.
hb1307-00
FLORIDA H O U S E 0 F REPRESENTATIVES
HB 1307 2021
51 a. Enjoin such violation.
52 b. Recover actual damages or $500, whichever is greater.
53 2. If the court finds that the defendant willfully or
54 knowingly violated this section, the court may, in its
55 discretion, increase the amount of the award to an amount equal
56 to not more than three times the amount available under this
57 subsection.
58 (e) There is a rebuttable presumption that any telephonic
59 sales call made to a Florida area code is made to a resident of
60 this state or to a person who is in this state at the time of
61 the telephonic sales call Nothing herein prohibits the use of an
62 automated telephone dialing system with live messages if the
63 calls arc made or messages given solely in response to calls
64 initiated by the persons to Hhom the automatic calls or live
65 messages are directed or if the telephone nuf!\bers selected for
66 automatic dialing have been screened to exclude any telephone
67 subscriber who is included on the department's then current "no
68 sales solicitation calls'' listing Qr any unlisted telephone
69 number, or if the calls made conccrA goods or services that have
70 been previously ordered or purchased.
71 (f)+e+- It shall be unlawful for any person who makes a
72 telephonic sales call or causes a telephonic sales call to be
73 made to fail to transmit or cause not to be transmitted the
74 originating telephone number and, when made available by the
75 telephone solicitor's carrier, the name of the telephone
Page 3 of 6
CODING: Words stricken are deletions; words underlined are additions.
hb1307-00
FLORIDA H O U S E 0 F REPRESENTATIVES
HB 1307 2021
76 solicitor to any caller identification service in use by a
77 recipient of a telephonic sales call. However, it shall not be a
78 violation to substitute, for the name and telephone number used
79 in or billed for making the call, the name of the seller on
80 behalf of which a telephonic sales call is placed and the
81 seller's customer service telephone number, which is answered
82 during regular business hours. If a telephone number is made
83 available through a caller identification service as a result of
84 a telephonic sales call, the solicitor must ensure that
85 telephone number is capable of receiving telephone calls and
86 must connect the original call recipient, upon calling such
87 number, to the telephone solicitor or to the seller on behalf of
88 which a telephonic sales call was placed. For purposes of this
89 section, the term "caller identification service" means a
90 service that allows a telephone subscriber to have the telephone
91 number and, where available, the name of the calling party
92 transmitted contemporaneously with the telephone call and
93 displayed on a device in or connected to the subscriber's
94 telephone.
95 J_gj_-ta+ It shall be unlawful for any person who makes a
96 telephonic sales call or causes a telephonic sales call to be
97 made to intentionally alter the voice of the caller in an
98 attempt to disguise or conceal the identity of the caller in
99 order to defraud, confuse, or financially or otherwise injure
100 the recipient of a telephonic sales call or in order to obtain
Page 4 of 6
CODING: Words stricken are deletions; words underlined are additions.
hb1307-00
FLORIDA H O U S E 0 F REPRESENTATIVES
HB 1307 2021
101 personal information from the recipient of a telephonic sales
102 call which may be used in a fraudulent or unlawful manner.
103 (10) (a) In any civil litigation resulting from a
104 transaction involving a violation of this section, the
105 prevailing plaintiff party, after judgment in the trial court
106 and exhaustion of all appeals, if any, shall receive his or her
107 reasonable attorney attorney's fees and costs from the
108 nonprevailing defendant party.
109 (b) The attorney for the prevailing plaintiff party shall
110 submit a sworn affidavit of his or her time spent on the case
111 and his or her costs incurred for all the motions, hearings, and
112 appeals to the trial judge who presided over the civil case.
113 (c) The trial judge shall award the prevailing plaintiff
114 party the sum of reasonable costs incurred in the action plus a
115 reasonable legal fee for the hours actually spent on the case as
116 sworn to in an affidavit.
117 (d) Any award of attorney attorney's fees or costs shall
118 become a part of the judgment and subject to execution as the
119 law allows.
120 (e) In any civil litigation initiated by the department or
121 the Department of Legal Affairs, the court may award to the
122 prevailing plaintiff party reasonable attorney attorney's fees
123 and costs if the court finds that there was a complete absence
124 of a justiciable issue of either law or fact raised by the
125 losing party or if the court finds bad faith on the part of the
Page 5 of 6
CODING: Words strisken are deletions; words underlined are additions.
hb1307-00
FLORIDA H O U S E 0 F REPRESENTATIVES
HB 1307 2021
12 6 losing party.
127 Section 2. This act shall take effect July 1, 2021.
Page 6 of 6
CODING: Words strisken are deletions; words underlined are additions.
hb1307-00
REGULATORY REFORM SUBCOMMITTEE
HB 1307 by Rep. Beltran
Telephone Solicitation
AMENDMENT SUMMARY
March 17, 2021
Amendment 1 by Rep. Beltran (Strike-all amendment):
The strike-all amendment differs from the original bill in the following ways:
• Revises the definition for "express written consent" to clarify that a consent agreement is
a written consent agreement that may include the handwritten signature of the called
party.
• Authorizes a called party to revoke express written consent through any reasonable
means clearly expressing a desire to receive no further calls, texts, or messages.
• Removes the cause of action and related penalties for violations.
• Specifies that use of an automated telephone dialing system is not prohibited if the calls
or messages are made in response to calls originally initiated by the persons to whom
the calls or messages are directed.
o Clarifies that this does not authorize repeated calls in response to a call made by
a called party.
• Specifies that the use of an automated telephone dialing system is authorized if the calls
concern the order, purchase, or delivery of goods or services that have previously been
ordered by the called party.
o Clarifies that this does not authorize telephonic sales calls made solely because
the called party conducted business with the person initiating the call.
• Removes the provision that only allows prevailing plaintiffs to receive attorney fees and
costs from nonprevailing defendants.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 1307 (2021)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/0 OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Regulatory Reform
2 Subcommittee
3 Representative Beltran offered the following:
4
5 Amendment (with title amendment)
6 Remove everything after the enacting clause and insert:
7 Section 1. Subsection (8) of section 501.059, Florida
8 Statutes, is amended to read:
9 501.059 Telephone solicitation.-
10 ( 8) (a) ~ Ne person may not shall make or knowingly allow a
11 telephonic sales call to be made if such call involves an
12 automated system for the selection or dialing of telephone
13 numbers or the playing of a recorded message when a connection
14 is completed to a number called without t he prior express
15 written consent of the called party.
16 (b) As used in this subsection, the term:
415073 - h1307-strike.docx
Published On: 3/16/2021 4:35:36 PM
Page 1 of 5
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 1307 (2021)
Amendment No. 1
17 1. "Called party" means a person who is the regular user
18 of the telephone number that is delivered a telephonic sales
19 call.
20 2. "Express written consent" means a written consent
21 agreement bearing the handwritten, electronic, or digital
22 signature of a called party that states the telephone number to
23 which the called party authorizes a telephonic sales call to be
24 delivered and clearly authorizes a person to make or knowingly
25 allow a telephonic sales call to be made using an automated
26 system for selecting or dialing telephone numbers, playing a
27 recorded message when a connection is completed to a telephone
28 number called, transmitting a text message, or transmitting a
29 prerecorded voicemail. A called party may revoke express written
30 consent through any reasonable means clearly expressing a desire
31 to receive no further calls, texts, or messages.
32 (c) The express written consent must include a clear and
33 conspicuous disclosure informing the called party that:
34 1. By executing the agreement, the called party authorizes
35 a person to make or knowingly allow a telephonic sales call to
36 be made using an automated system for selecting or dialing
37 telephone numbers, playing a recorded message when a connection
38 is completed to a telephone number called, transmitting a text
39 message, or transmitting a prerecorded voicemail.
40 2. The called party is not required to sign the agreement
41 or consent to enter into such an agreement as a condition of
415073 - hl307-strike.docx
Published On: 3/16/2021 4:35:36 PM
Page 2 of 5
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 1307 (2021)
Amendment No. 1
42 purchasing any property, goods, or services.
43 (d) There is a rebuttable presumption that any telephonic
44 sales call made to a Florida area code is made to a resident of
45 this state or to a person who is in this state at the time of
46 the telephonic sales call.
47 (e) This subsection does not prohibit Nothing herein
48 prohibits the use of an automated telephone dialing system with
49 live messages if the calls are made or messages are given solely
50 in response to calls originally initiated by the persons to whom
51 the automatic calls or live messages are directed. This
52 paragraph does not authorize repeated calls in response to a
53 call made by a called party to the person who originally
54 initiated a telephonic sales call to the called party.
55 (f) This subsection does not prohibit the use of an
56 automated telephone dialing system or if the telephone numbers
57 selected for auteFAatic dialing have been screened to mceludc ony
58 telephone subscriber who is included on the department ' s then
59 currcRt ".no sales solicitation calls" listing or any unlisted
60 telephone number, or if the calls made concern goods or services
61 that have been previously ordered or purchased by the called
62 party and concern the order, purchase, or delivery of, or
63 payment for, such goods or services. This paragraph does not
64 authorize telephonic sales calls to a called party solely
65 because the called party has previously conducted business with
66 the person initiating the telephonic sales call.
415073 - hl307-strike.docx
Published On: 3/16/2021 4:35:36 PM
Page 3 of 5
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 1307 (2021)
Amendment No. 1
67 J_gl-te+ It is shall be unlawful for any person who makes a
68 telephonic sales call or causes a telephonic sales call to be
69 made to fail to transmit or cause not to be transmitted the
70 originating telephone number and, when made available by the
71 telephone solicitor's carrier, the name of the telephone
72 solicitor to any caller identification service in use by a
73 recipient of a telephonic sales call. However, it is shall not
74 ee a violation to substitute, for the name and telephone number
75 used i n or billed for making the call, the name of the seller on
76 behalf of which a telephonic sales call is placed and the
77 seller's customer service telephone number, which is answered
78 during regular business hours. If a telephone number is made
79 available through a caller identification service as a result of
80 a telephonic sales call, the solicitor must ensure that
81 telephone number is capable of receiving telephone calls and
82 must connect the original call recipient, upon calling such
83 number, to the telephone solicitor or to the seller on behalf of
84 which a telephonic sales call was placed. For purposes of this
85 section, the term "caller identification service" means a
86 service that allows a telephone subscriber to have the telephone
87 number and, where available, the name of the calling party
88 transmitted contemporaneously with the telephone call and
89 displayed on a device in or connected to the subscriber's
90 telephone.
91 J..!:~_l_-fel-t It shall be unlawful for any person who makes a
415073 - hl307-strike.docx
Published On: 3/16/2021 4:35:36 PM
Page 4 of 5
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 1307 ( 2021)
Amendment No. 1
92 telephonic sales call or causes a telephonic sales call to be
93 made to intentionally alter the voice of the caller in an
94 attempt to disguise or conceal the identity of the caller in
95 order to defraud, confuse, or financially or otherwise injure
96 the recipient of a telephonic sales call or in order to obtain
97 personal information from the recipient of a telephonic sales
98 call which may be used in a fraudulent or unlawful manner.
99 Section 2. This act shall take effect July 1, 2021.
100
101
102 T I T L E A ME N D ME N T
103 Remove everything before the enacting clause and insert:
104 A bill to be entitled
105 An act relating to telephone solicitation; amending s.
106 501.059, F.S.; prohibiting certain telephonic sales
107 calls without the prior express written consent of the
108 called party; providing definitions; providing
109 requirements for consent agreements; providing a
110 rebuttable presumption for telephonic sales calls made
111 to specified area codes; removing provisions
112 authorizing the use of certain automated telephone
113 dialing systems; providing an effective date.
415073 - h1307-strike.docx
Published On: 3/16/2021 4:35:36 PM
Page 5 of 5
I
ro
0)
0
0,
w
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL#: HB 6053 Doorstep Waste Containers
SPONSOR($): Yarborough
TIED BILLS: IDEN./SIM. BILLS: SB 904
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform Subcommittee Brackett / } If Anstead ~
2) Commerce Committee
SUMMARY ANALYSIS
Florida's fire prevention and control law, ch. 633, F.S., designates the state's Chief Financial Officer as the
State Fire Marshal, and requires the State Fire Marshal to adopt the Florida Fire Prevention Code (Fire Code)
by rule every three years. The Fire Code sets forth fire safety standards (including certain national codes) for
property, and is enforced by local fire officials within each local government in the state. The Fire Code
provides that a person may not place combustible waste and refuse in a building's means of egress, which
includes a building's exit access corridors.
Currently, there are various providers offering doorstep waste collection services to apartment complexes
throughout the state. Residents in these complexes place waste outside their front door, and the provider picks
it up. An apartment complex resident's front door usually opens to a hallway, corridor, or walkway, which may
be or lead to the building's exit access.
During the 2018 Legislative Session, the Legislature temporarily allowed residents in apartment buildings to
place combustible waste and refuse in an exit access corridor if certain conditions were met. These statutory
changes were not adopted by the State Fire Marshal in the Fire Code. Current law allows waste containers to
be placed in an apartment building's exit access corridors if:
• Waste, which is in a container, is not in an exit access corridor for a single period greater than 5 hours;
• Containers do not exceed 13 gallons for apartment buildings with enclosed corridors and interior or
exterior stairs, or exceed 27 gallons for apartment buildings with open air corridors and exterior stairs or
balconies with exterior exit stairs;
• Containers are not in an exit access corridor for a single period greater than 12 hours for apartment
buildings with enclosed corridors and interior or exterior stairs;
• Containers do not reduce the exit access corridor's width below the width required by the Fire Code;
• Containers can stand upright on their own and do not leak fluids when standing upright; and
• The apartment's management staff have written policies and procedures to ensure compliance with the
above conditions.
Apartment complexes were given a phase-in period to comply with these requirements, which ended on
December 31, 2020.
The provisions allowing the placement of waste and refuse containers in an exit access corridor expire on July
1, 2021.
The bill repeals the July 1, 2021 expiration date for the statutory provisions, thus allowing residents in
apartment complexes to continue placing waste outside their front door for pick up by waste collection
services, which may conflict with the Fire Code.
The bill is not expected to have a significant fiscal impact on state or local government.
The bill provides an effective date of July 1, 2021 .
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h6053.RRS
DATE: 3/15/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Florida's fire prevention and control law, ch. 633, F.S., designates the state's Chief Financial Officer as the
State Fire Marshal. The State Fire Marshal, through the Division of State Fire Marshal within the
Department of Financial Services (DFS), is charged with enforcing the provisions of ch. 633, F.S., and all
other applicable laws relating to fire safety, and has the responsibility to minimize the loss of life and
property in this state due to fire. 1 Pursuant to this authority, the State Fire Marshal regulates, trains, and
certifies fire service personnel and fire safety inspectors; investigates the causes of fires; enforces arson
laws; regulates the installation of fire equipment; conducts fire safety inspections of state property; and
operates the Florida State Fire College.
Adoption and Interpretation of the Florida Fire Prevention Code
The State Fire Marshal also adopts by rule the Florida Fire Prevention Code (Fire Code), which contains all
fire safety laws and rules that pertain to the design, construction, erection, alteration, modification, repair,
and demolition of public and private buildings, structures, and facilities, and the enforcement of such fire
safety laws and rules, at ch. 69A-60, F.A.C.
The State Fire Marshal adopts a new edition of the Fire Code every three years. 2 When adopting the Fire
Code the Fire Marshal is required to adopt the most current version of the national fire and life safety
standards set forth by the National Fire Protection Association (NFPA) including the:
• NFPA's Fire Code (1 );
• Life Safety Code (101); and
• Guide on Alternative Approaches to Life Safety (101A). 3
The State Fire Marshal may modify the national fire safety and life safety standards as needed to
accommodate the specific needs of the state. 4
The most recent Fire Code is the 7th edition, which is referred to as the 2020 Florida Fire Prevention Code.
The 7th edition of the Fire Code took effect on December 31, 2020. 5
The State Marshal has authority to interpret the Code, and is the only authority that may issue a
declaratory statement relating to the Fire Code. 6
Fire Safety Enforcement by Local Governments
State law requires all municipalities, counties, and special districts with fire safety responsibilities to enforce
the Fire Code as the minimum fire prevention code to operate uniformly among local governments and in
1
S. 633.104, F.S.
2
S. 633.202, F.S.
3
S. 633.202(2), F.S. Founded in 1896, the National Fire Protection Association delivers information and knowledge through more
than 300 consensus codes and standards, research, training, education, outreach and advocacy; and by partnering with others who
share an interest in furthering the mission. NFPA, About NFPA, http://www.nfpa.org/about-nfpa (last visited on Feb. 28, 2021).
4 Id.
5
Division of State Fire Marshal, Florida Fire Prevention Code (FFPC),
https://www.myfloridacfo.com/division/sfm/bfp/floridafirepreventioncodepage.hlm (last visited Feb. 28, 2021).
6
S. 633.104(6), F.S.
STORAGE NAME: h6053.RRS PAGE: 2
DATE: 3/15/2021
conjunction with the Florida Building Code. 7 These local enforcing authorities may adopt more stringent fire
safety standards, subject to certain requirements ins. 633.208, F.S., but may not enact fire safety
ordinances that conflict with ch. 633, F.S., or any other state law. 8
The chiefs of local government fire service providers (or their designees) are authorized to enforce ch. 633,
F.S., and rules within their respective jurisdictions as agents of those jurisdictions, not agents of the State
Fire Marshal. 9 Each county, municipality, and special district with fire safety enforcement responsibilities is
also required to employ or contract with a fire safety inspector (certified by the State Fire Marshal) to
conduct all fire safety inspections required by law. 10
Section 633.208(5), F.S. states "With regard to existing buildings, the Legislature recognizes that it is not
always practical to apply any or all of the provisions of the Fire Code and that physical limitations may
require disproportionate effort or expense with little increase in fire or life safety."
Pursuant to s. 633.208(5), F.S., local fire officials must apply the Fire Code for existing buildings to the
extent practical to ensure a reasonable degree of life safety and safety of property. The local fire officials
are also required to fashion reasonable alternatives that afford an equivalent degree of life safety and
safety of property.
Florida Building Code
The Florida Building Code (Building Code) is the statewide building code for all construction in the state.
The Florida Building Commission (Commission), housed within the Department of Business and
Professional Regulation (DBPR), implements the Building Code. The Commission reviews the International
Code Council's I-Codes and the National Electric Code every three years to determine if it needs to update
the Building Code. 11
Means of Egress
A means of egress is a path available for a person to leave a building. A means of egress is made up of
three parts, which includes the following: 12
• Exit access;
• Exit; and
• Exit discharge.
The exit access is a path, such as a hallway or corridor, from any location in the building to an exit. The exit
is usually a door leading outside, or in a multi-story building, an enclosed stairway. The exit discharge is a
path from the exit to a space that is dedicated to public use such as a street or alley. 13
The Fire Code provides that a building's means of egress must be a certain width determined by the
number of occupants in the building and the use of the building. 14 The Fire Code further provides that a
building's means of egress must be free of all obstructions or impediments in case of fire or other
emergency. 15
7
Ss. 633.108 and 633.208, F.S.
8
Ss. 633.208 and 633.214(4), F.S.
9
S. 633.118, F.S.
LOS. 633.216(1), F.S.
LIS. 553.73(7)(a), F.S.
12
Section 3.3.182 of the 7th edition of the Florida Fire Prevention Code (NFPA 1, Fire Code).
13
Section 202 of the 7th edition of the Florida Building Code (Building); Richmond ICC, 2018 Annual Coriference Education
Sessions, Session: 2018 !BC Essentials - Means of Egress & Fire Protection, https://www.iccsafe.org/wp-content/uploads/2018-1 BC-
Essentia ls-%E2%80%93 -Means-of-Egress-Fire-Protection.pdf (last visited Feb. 28, 2021 ).
14
See Section 7.3.4 of the 7th edition of the Florida Fire Prevention Code (NFPA 101, Life Safety Code).
15
Section 7.1.10.1 of the 7th edition of the Florida Fire Prevention Code (NFPA 101, Life Safety Code).
STORAGE NAME: h6053.RRS PAGE: 3
DATE: 3/15/2021
The Building Code also provides that a building's means of egress must be a certain width determined by
the number of occupants in the building. 16 The Building Code provides that the required width of a
building's means of egress must be free of all obstructions and impediments. 17
However, the Building Code provides that maintenance of a building's means of egress must be in
accordance with the Fire Code. 18 DBPR has interpreted this to mean that the Fire Code takes precedence
when it comes to people placing objects, such as a trashcan, in a building's means of egress. 19
Combustible Waste and Refuse
The Fire Code defines "combustible waste" as any combustible or loose waste material that is generated
by an establishment or process and, if salvageable, is retained for scrap or reprocessing on the premises
where generated or transported to a plant for processing. 20
The Fire Code defines "combustible refuse" as a combustible or loose rubbish, litter, or waste materials
generated by an occupancy that are refused, rejected, or considered worthless and are disposed of by
incineration on the premises where generated or periodically transported from the premises. 21
Combustible waste and refuse may be stored in an apartment building if the combustible waste and refuse
is:22
• Stored in a container less than 1.5 cubic yards (302 gallons) or in an enclosed area with a 1 hour
fire resistance rating and an automatic sprinkler system;
• Removed from the building once a day unless the waste and refuse is stored in a noncombustible
room; and
• Not stored in the building's exit(s).
Private Doorstep Collection Providers
Currently, there are various providers offering doorstep refuse and recycling collection services to
apartment complexes throughout the state. The basic business model requires the residents of an
apartment building to place their waste outside of their doorstep, in a specified container approved by the
provider. The doorstep refuse and recycling collection providers then come by and collect the waste at a
specified time. 23
An apartment complex resident's front door opens to a hallway, corridor, or walkway, which is usually the
building's exit access and therefore part of the building's means of egress. According to DFS, apartments
that contract with the doorstep refuse and recycling collection providers are violating the Fire Code by
allowing residents to place combustible waste and refuse in their buildings' means of egress. 24
In 2016, the State Fire Marshal issued declaratory statements determining that apartments may not allow
residents to place waste containers outside their front doors regardless of the size of the container or if the
waste is removed daily. The State Fire Marshal determined that the Fire Code prohibits apartment
16
Section 1005 of the 7th edition of the Florida Building Code (Building).
17
Section 1018.1, 1020.3, and 1024.2 of the 7th edition of the Florida Building Code (Building).
18
Section 1001.3 of the 6th edition of the Florida Building Code (Building).
19
Email from Vicky Summerhill, Office of Legislative Affairs, Department of Business and Professional Regulation, FW: Florida
Building Code questions (Mar. 4, 2021 ).
20
Section 3.3.63 of the 7th edition of the Florida Fire Prevention Code (NFPA 1, Fire Code).
21
Section 3.3.62 of the 7th edition of the Florida Fire Prevention Code (NFPA 1, Fire Code).
22
Section 10.18.4 and 19.2.1 of the 7th edition of the Florida Fire Prevention Code (NFPA 1, Fire Code).
23
Department of Financial Services, Agency Analysis of2018 House Bill 529, p. 1 (Nov. 29, 2017).
24 Id.
STORAGE NAME: h6053.RRS PAGE: 4
DATE: 3/15/2021
residents from placing any type of waste container outside their door because the residents are placing an
obstruction in a building's means of egress and combustible waste in a building's exit. 25
During the 2018 Legislative Session, the Legislature temporarily allowed refuse and recycling containers to
be placed in exit access corridors in apartment buildings if the following conditions are met: 26
• Waste, which is in a doorstep refuse and recycling collection container, is not placed in an exit
access corridor for a single period greater than 5 hours;
• Doorstep refuse and recycling containers do not exceed 13 gallons for apartment buildings with
enclosed corridors and interior or exterior stairs;
• Doorstep refuse and recycling collection containers do not exceed 27 gallons for apartment
buildings with open air corridors and exterior stairs or balconies with exterior exit stairs;
• Doorstep refuse and recycling collection containers are not in an exit access corridor for a single
period greater than 12 hours for apartment buildings with enclosed corridors and interior or exterior
stairs;
• Doorstep refuse and recycling collection containers do not reduce the exit access corridor's width
below the width required by the Fire Code;
• Doorstep refuse and recycling collection containers are able to stand upright on their own and may
not leak fluids when standing upright; and
• The apartment's management staff have written policies and procedures to ensure compliance with
the above conditions. Management staff must enforce the policies and must provide a copy of the
policies to the authority having jurisdiction upon request.
Apartment complexes were given a phase in period to comply with these requirements. Apartments had to
comply with the requirements by December 31, 2020. Local fire marshals were given authority to approve
alternative containers or storage arrangements that are equivalent to these requirements. 27 However, these
requirements sunset on July 1, 2021. The purpose of the sunset date was to give the various providers
time to work with the State Fire Marshal to develop an amendment to the Fire Code, which is the State Fire
Marshal's preferred method for amending the Fire Code. 28
According to DFS, the State Fire Marshal adopted an amendment to the Fire Code, which took effect when
the 7th edition of the Fire Code became effective on December 31, 2020, intended to allow the various
doorstep refuse and recycling collection providers to keep operating. 29 The amendment provides that waste
and refuse may be placed in exits, exit passageways, enclosures for stairs or ramps, corridors, elevator
lobbies, or egress balconies if: 30
• Waste, which is in a doorstep refuse and recycling collection container, is not placed in an exit
access corridor for a single period greater than 5 hours;
• Doorstep refuse and recycling containers do not exceed 15 gallons;
• Doorstep refuse and recycling collection containers are not in an exit access corridor for a single
period greater than 15 hours;
• Doorstep refuse and recycling collection containers do not reduce the exit access corridor's width
below the width required by the Fire Code;
• Management staff have written policies and procedures to ensure compliance with the above
conditions. Management staff must enforce the policies and must provide a copy of the policies to
the authority having jurisdiction upon request; and
25
See In the matter of William Harrison, Fire Marshal Clermont Fire Department, Case No.: 188696-16-DS (Fla. DFS) (June 21,
2016); In the matter of Steve Strong, Fire Marshal Clearwater Fire & Rescue, Case No.: 196979-16-DS (Fla. DFS) (Dec. 23, 2016).
26
S. 633.202(20), F.S.; See House Analysis of2018 House Bill 529 (Apr. 9, 2018).
21 Id.
28
See The Florida Channel, 1/9/18 House Careers and Competition Subcommittee, bttps://Lhef\oridachannel.org/videos/1-9-18-house-
careers-competition-subcommittee/ (last visited Feb. 28, 2021).
29
Department of Financial Services, Agency Analysis of2021 House Bill 6053, p. l (Mar. 2, 2021).
30
Sections 10.18.4. l and 10.18.4. l.l of the 7th edition of the Florida Fire Prevention Code (NFPA 1, Fire Code).
STORAGE NAME: h6053.RRS PAGE: 5
DATE: 3/15/2021
• Waste or refuse must be placed completely inside one or more containers with a closed lid.
After July 1, 2021, the following provisions in the amendment to the Fire Code take effect: 31
• Containers and lids located in an area that is not protected by fire sprinklers must be made entirely
of noncombustible materials that comply with the Fire Code. 32
• Containers and lids located in an area that is protected by fire sprinklers does not have to made
entirely of noncombustible materials that comply with the Fire Code.
Proponents of repealing the sunset date argue that the amendment to the Fire Code requires apartment
complex residents and doorstep refuse and recycling collection providers to use refuse and recycling
containers that are not readily available. Opponents of repealing the sunset date argue that repealing the
sunset date will allow refuse and recycling containers, which do not comply with the Fire Code, to be
placed in apartment access corridors. 33
Effect of the Bill
The bill repeals the sunset date of July 1, 2021. Thus leaving the provisions in s. 633.202(20), F.S., that
allow refuse and recycling containers to be lawfully placed in exit access corridors just as they have been
since the adoption of the provisions in 2018.
The bill also repeals the phase in period, which provisions had to be complied with by December 31, 2020.
B. SECTION DIRECTORY:
Section 1. Amends s. 633.202, F.S., repealing a sunset date and a phase in period .
Section 2. Provides an effective date of July 1, 2021.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues :
None.
2. Expenditures:
31 Id.
32
Noncombustible materials must meet a peak rate of heat release not exceeding 150 kW/m2 when tested in accordance with ASTME
1354 at an incident heat flux of 50kW/m2 in the horizontal orientation. Containers and lids must be listed or have a label from an
approved agency that the container or lid meets the Fire Code's requirement. Id.
33
See The Florida Channel, 3/3/21 Senate Committee on Community Affairs, https://thetloridachannel.org/videos/3-3-2 l-senate-
committee-on-community-affairs/ (last visited Mar. 4, 2021 ).
STORAGE NAME: h6053.RRS PAGE: 6
DATE: 3/15/2021
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Indeterminate.
D. FISCAL COMMENTS:
None.
Ill. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
According to DFS, removing the sunset date and the phase in period would create a conflict between
Florida Statutes and amendments to the Fire Code.
"The proposed bill language would allow trash containers with no fire-rated requirements
and located in the hallways used for egress, to obstruct the means of egress which would
cause obstacles to life safety in case of emergency. All of subsection (20) needs to be
repealed in accordance with the sunset provisions set forth in the law because it is in conflict
with and would cause confusion with the 7th edition of the Florida Fire Prevention Code,
which became effective December 31, 2020." 34
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
34
Department of Financial Services supra note 29.
STORAGE NAME: h6053.RRS PAGE: 7
DATE: 3/15/2021
FLORIDA H O U S E 0 F REPRESENTATIVES
HB 6053 2021
1 A bill to be entitled
2 An act relating to doorstep waste containers; amending
3 s. 633.202, F .S.; deleting an obsolete provision;
4 removing the scheduled repeal of certain provisions
5 regulating the use of containers in exit access
6 corridors; providing an effective date.
7
8 Be It Enacted by the Legislature of the State of Florida:
9
10 Section 1. Paragraphs (d) and (e) of subsection (20) of
11 sec tion 633.202, Florida Statutes, are amended to read:
12 633.202 Florida Fire Prevention Code.-
13 (20)
14 (d) The authority having jurisdiction shall allow
15 apartment occupancies a phase in period until December 31 , 2020,
16 to comply with this subsection .
17 (e) This subsection is repealed on July 1 , 2021 .
18 Section 2. This act shal l take effect July 1, 2021 .
Page 1 of 1
CODING: Words stricken are deletions; words underlined are additions.
hb6053-00
File and source
- File
- 2021-03-17_3101_regulatory-reform-subcommittee_meeting-packets_mtg12894.pdf
- Size
- 12,544,526 bytes
- SHA-256
- ea56841d895ed0459ec9d226a8ce1812e2731648cf7bb6b80ff597285fe1d746
- Original
- No public link identified.