Committee Meeting Expanded Agenda - Commerce and Tourism, Florida Senate (Monday, March 22, 2021)
Summary
A Florida Senate Committee Meeting Expanded Agenda for Commerce and Tourism, with Senator Hooper as Chair and Senator Wright as Vice Chair, for the meeting of Monday, March 22, 2021, 3:30 PM to 6:00 PM. It records a confirmation hearing for Dane Eagle as Executive Director, Department of Economic Opportunity, with the committee action Recommend Confirm. The agenda lists SB 1734 on Consumer Data Privacy, SPB 7064 on Public Records/Investigations by the Department of Legal Affairs, SB 1312 on the Zoological and Aquarium Grant Program and CS/SB 266 on Home-based Businesses, each with a committee action. The packet also has a timestamped record of the meeting that ends with a motion by Senator Torres to adjourn.
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
“Committee Meeting Expanded Agenda - Commerce and Tourism, Florida Senate (Monday, March 22, 2021).”
Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2021-03-22-post-meeting-packet-4714-85d48e5d43/
, SHA-256 3f78e13ef1d7f5aa4750e29f894d4ac3a1260abe117c0ced9e4f03d5ca85220f.Full text
Selection From: 03/22/2021 - Commerce and Tourism (3:30 PM - 6:00 PM) 2021 Regular Session
Customized 03/26/2021 9:22 AM
Agenda Order
Tab 2 SB 1734 by Bradley; (Compare to CS/H 00969) Consumer Data Privacy
482404 D S RCS CM, Bradley Delete everything after 03/23 10:44 AM
122682 AA S UNFAV CM, Taddeo Delete L.53: 03/23 10:44 AM
589178 AA S UNFAV CM, Taddeo Delete L.757 - 792: 03/23 10:44 AM
Tab 3 SPB 7064 by CM; Public Records/Investigations by the Department of Legal Affairs
Tab 4 SB 1312 by Bradley; (Identical to H 01175) Zoological and Aquarium Grant Program
587156 A S RCS CM, Bradley Delete L.21: 03/23 10:51 AM
Tab 5 CS/SB 266 by CA, Perry (CO-INTRODUCERS) Baxley; (Similar to CS/H 00403) Home-based Businesses
203018 A S FC CM, Perry Delete L.33 - 78: 03/23 10:52 AM
Tab 6 SB 1140 by Rodrigues (CO-INTRODUCERS) Garcia; (Similar to CS/H 00833) Unlawful Use of DNA
Tab 7 SB 1294 by Brodeur; (Similar to CS/H 00663) Cottage Food Operations
Tab 8 SB 1374 by Farmer; (Identical to H 00349) Small Business Website Development Grant Program
Tab 9 SB 1992 by Harrell; (Identical to H 01483) Solicitation of Nonmedical Services
SB 1542 by Burgess; (Identical to H 00535) Electronic Dissemination of Commercial Recordings and
Tab 10
Audiovisual Works
Page 1 of 1
2021 Regular Session The Florida Senate
COMMITTEE MEETING EXPANDED AGENDA
COMMERCE AND TOURISM
Senator Hooper, Chair
Senator Wright, Vice Chair
MEETING DATE: Monday, March 22, 2021
TIME: 3:30—6:00 p.m.
PLACE: Toni Jennings Committee Room, 110 Senate Building
MEMBERS: Senator Hooper, Chair; Senator Wright, Vice Chair; Senators Burgess, Diaz, Garcia, Gruters,
Hutson, Pizzo, Powell, Taddeo, and Torres
BILL DESCRIPTION and
TAB BILL NO. and INTRODUCER SENATE COMMITTEE ACTIONS COMMITTEE ACTION
PUBLIC TESTIMONY WILL BE RECEIVED FROM ROOM A1 AT THE DONALD L.
TUCKER CIVIC CENTER, 505 W PENSACOLA STREET, TALLAHASSEE, FL 32301
TAB OFFICE and APPOINTMENT (HOME CITY) FOR TERM ENDING COMMITTEE ACTION
Senate Confirmation Hearing: A public hearing will be held for consideration of the below-
named executive appointment to the office indicated.
Executive Director, Department of Economic Opportunity
1 Eagle, Dane (Tallahassee) Pleasure of Governor Recommend Confirm
Yeas 11 Nays 0
BILL DESCRIPTION and
TAB BILL NO. and INTRODUCER SENATE COMMITTEE ACTIONS COMMITTEE ACTION
2 SB 1734 Consumer Data Privacy; Citing this act as the "Florida Fav/CS
Bradley Privacy Protection Act"; providing that consumers Yeas 10 Nays 1
(Compare CS/H 969) have the right to direct certain businesses not to sell
their personal information; prohibiting businesses
from selling the personal information of consumers
younger than a specified age without express
authorization from the consumer or the consumer’s
parent or guardian under certain circumstances;
providing that consumers have the right to submit a
verified request for businesses to delete or correct
personal information the businesses have collected
about the consumers; prohibiting businesses from
taking certain actions to discriminate against
consumers who exercise certain rights, etc.
CM 03/22/2021 Fav/CS
AP
RC
Consideration of proposed bill:
S-036 (10/2008)
03222021.1804 Page 1 of 4
COMMITTEE MEETING EXPANDED AGENDA
Commerce and Tourism
Monday, March 22, 2021, 3:30—6:00 p.m.
BILL DESCRIPTION and
TAB BILL NO. and INTRODUCER SENATE COMMITTEE ACTIONS COMMITTEE ACTION
3 SPB 7064 Public Records/Investigations by the Department of Submitted and Reported
Legal Affairs; Providing an exemption from public Favorably as Committee Bill
records requirements for information relating to Yeas 11 Nays 0
investigations by the Department of Legal Affairs and
law enforcement agencies of certain data privacy
violations; providing for future legislative review and
repeal of the exemption; providing a statement of
public necessity, etc.
4 SB 1312 Zoological and Aquarium Grant Program; Authorizing Fav/CS
Bradley the Department of Economic Opportunity to establish Yeas 11 Nays 0
(Identical H 1175) a grant program for the support of zoos and
aquariums located within the state; providing eligibility
requirements; authorizing the use of grant funds for
certain purposes; requiring the department to adopt
rules; providing that the department has final grant
approval authority, etc.
CM 03/22/2021 Fav/CS
ATD
AP
5 CS/SB 266 Home-based Businesses; Specifying conditions under Favorable
Community Affairs / Perry which a business is considered a home-based Yeas 9 Nays 2
(Similar CS/H 403) business; providing requirements for home-based
businesses; authorizing a home-based business to
operate in a residential zone under certain
circumstances; specifying that home-based
businesses are subject to certain business taxes;
prohibiting a local government from taking certain
actions relating to home-based businesses, etc.
CA 03/10/2021 Fav/CS
CM 03/22/2021 Favorable
RC
6 SB 1140 Unlawful Use of DNA; Prohibiting DNA analysis and Favorable
Rodrigues disclosure of DNA analysis results without Yeas 9 Nays 0
(Identical H 833) authorization; prohibiting the collection or retention of
a DNA sample of another person without
authorization for specified purposes; prohibiting
specified DNA analysis and disclosure of DNA
analysis results without authorization, etc.
HP 03/10/2021 Favorable
CM 03/22/2021 Favorable
RC
S-036 (10/2008)
03222021.1804 Page 2 of 4
COMMITTEE MEETING EXPANDED AGENDA
Commerce and Tourism
Monday, March 22, 2021, 3:30—6:00 p.m.
BILL DESCRIPTION and
TAB BILL NO. and INTRODUCER SENATE COMMITTEE ACTIONS COMMITTEE ACTION
7 SB 1294 Cottage Food Operations; Citing this act as the Favorable
Brodeur "Home Sweet Home Act"; revising the definition of Yeas 7 Nays 2
(Similar CS/H 663) “cottage food operation”; increasing the annual gross
sales limitation for exempting cottage food operations
from certain food and building permitting
requirements; authorizing the sale, offer for sale,
acceptance of payment, and delivery of cottage food
products by mail; preempting the regulation of cottage
food operations to the state; prohibiting local
governments from prohibiting or regulating cottage
food operations, etc.
RI 03/09/2021 Favorable
CM 03/22/2021 Favorable
RC
8 SB 1374 Small Business Website Development Grant Favorable
Farmer Program; Creating the Small Business Website Yeas 9 Nays 0
(Identical H 349) Development Grant Program within the Department of
Economic Opportunity; requiring the department to
provide grants subject to legislative appropriation;
authorizing certain small businesses to apply for a
grant in a specified amount; requiring that grant funds
be used for the development of a website, etc.
CM 03/22/2021 Favorable
ATD
AP
9 SB 1992 Solicitation of Nonmedical Services; Providing that a Favorable
Harrell person who submits or sponsors a nonmedical Yeas 11 Nays 0
(Identical H 1483) solicitation that contains certain terminology or fails to
include specified disclosures commits a deceptive
and unfair trade practice, subject to the penalties and
remedies of the Florida Deceptive and Unfair Trade
Practices Act; prohibiting the unauthorized use, sale,
or transfer of protected health information for the
purpose of soliciting professional services; providing
criminal penalties for willful and knowing violations
and enhanced criminal penalties for violations
committed for financial gain, etc.
CM 03/22/2021 Favorable
JU
RC
10 SB 1542 Electronic Dissemination of Commercial Recordings Favorable
Burgess and Audiovisual Works; Revising the definition of the Yeas 9 Nays 0
(Identical H 535) term “electronic dissemination”, etc.
CM 03/22/2021 Favorable
JU
RC
S-036 (10/2008)
03222021.1804 Page 3 of 4
COMMITTEE MEETING EXPANDED AGENDA
Commerce and Tourism
Monday, March 22, 2021, 3:30—6:00 p.m.
BILL DESCRIPTION and
TAB BILL NO. and INTRODUCER SENATE COMMITTEE ACTIONS COMMITTEE ACTION
Other Related Meeting Documents
S-036 (10/2008)
03222021.1804 Page 4 of 4
r RECEiVtb
Ron DeSantis ¦£ PAD THEN [ OF i l
Governor
MDEC-8 AM 9: 33
:VVISlO { OF G CTI0NQ
• ( • 1 ! •: F,F|
December 4, 2020
Secretary Laurel M. Lee
Dep rtment of State
R. A. Gr y Building, Room 316
500 South Bronou h Street
Tallah ssee, Florida 32399-0250
Dear Secret ry Lee:
Please be dvised I have de the followin ppointment under the provisions
of Section 20.60, Florida Statutes:
Mr. Dane Ea le
107 E. Madison Street
Tallahassee, Flo ida 32399
as the executive director of Florida Department of Econo ic Opportunity, subject to
confirmation by the Senate. This appointment is effective September 2,2020, for a term
endin t the leasure of the overnor.
RD/s
THE CAPITOL
OATH OF OFFICE a • 21t
(Art II. § 5(b), Fla. Const.)
STATE OF FLORIDA 2020 ¦' 15 pf( |2; 12
County of eon
!.'¦ i . . ••• ' 1
I do solemnl swear (or affir ) that I will support, protect, and defend the Constitution and
Government of the United States and of the St te of Florid ; that I am duly qualified to hold
office unde the C nstitution of the St te, an that I will well and faithfully perform the duties of
Executive Director, Department of Economic Opportunity
(Title of Office)
on which I now about to enter, so help e God.
[NOTE: If ou affirm, you may omit the words so help me God. See § 92,52, Fla. Stat.j
Sjgnatur
Sw r t a d subscribed before m by ea f K physieal pre e ce or
onli e n tarizatio thi day of
DONNADWMBUW) ignature of Officer Administeri Oath or of Not ry Public
y Ftbttwy Donna A4fti
.2023 Diane Budd ¦__.... .
Print. Type, or Sta p C m is ioned N me of Notary Public
P r o ally K o n H OR Pr d ced Identification D
Type of Ide tificatio Produced
MW W B ww EM B am M MM MM w U W W MB M MK M MM ¦¦ MM Ml Ma M N M M Ml MM BM MH» VMt Ml *¦* Bl «M MM Ms W M M
ACCEPTANCE
I accept the office listed in the above Oath of Office.
M iling Address: EJ Home 0Office
107 E. Madison Street, Suite 212 Dane Eagle
Street or Post Office Box Print Name
Tallahassee, Florid 32399
City. State, Zip Code Signature
DS-DE 56 (Rev. 02/20)
i
feS!
STATE OF FLORI A »
DEPARTMENT OF STATE
Division of Elections
I, Laurel M. Lee, Secretary of St t ,
do hereby certify that
HI
Dane Eagle
is duly appointed IB
st I Executive Director, 8 ro-Bws
Department of Economic Opportunity
w S-SvC
j
for a term beginning on the Second day of September A.D.,
2020, to serve at the pleasure of the Governor and is subject to sQ-fe#
be confirmed by the Senate during the next regular se ion of the
Legislature,
f
a
Giv&n. nder my hand and the Great Seal of the
a
State of Florida, at Tallahass e, the Capital, this
the Eighth d y of Deceinbe , AD., 202D w
¦Mi
Secretary of State
DSDE 99 (3/03)
Sw.dl
b
CERTIFICATION
STATE OF FLORIDA
COUNTY OF
Before me e undersigned Notary Public of Florida, personally appeared
,
who, after being duty sworn, say: (1) that he/she has carefully and personally prepared or read
the answers to the foregoing questions; (2) that the information contained in said answers is
complete and true and (3) that he/she will, as an appointee, fully support the Constitutions of the
United States and of the State of Florida.
Signature df Applicant-Affiant
Sworn tcyand subscribed before me this day of
Signature of ;-State of Florida
TERYL s BRATCHER
'' ommission #06930894
Expires Dece ber 20,2023
Bonded Thru Troy Fain Insurance 800-385 7019
(Print, Type, or Stamp Commissioned Name of Notary Public)
My commission ex ires: /
Personally Known [ j- OR Produced Identification [Z]
Type of Identification Produced
(seal)
2021 Regular Session The Florida Senate
Committee Notice Of Hearing
IN THE FLORIDA SENATE
TALLAHASSEE, FLORIDA
IN RE: Executive Appointment of
Dane Eagle
Executive Director, Department of Economic Opportunity
NOTICE OF HEARING
TO: Mr. Dane Eagle
YOU ARE HEREBY NOTIFIED that the Committee on Commerce and Tourism of the Florida Senate will
conduct a hearing on your executive appointment on Monday, March 22, 2021, in the Toni Jennings
Committee Room, 110 Senate Building, commencing at 3:30 p.m., pursuant to Rule 12.7(1) of the Rules
of the Florida Senate.
Please be present at the time of the hearing.
DATED this the 16th day of March, 2021
Committeej Commerce and Tourism
cc: Members, Committee on Commerce and Tourism
Office of the Sergeant at Arms
03162021.1646 S-014 (03/04/13)
The Florida Senate
COMMITTEE WITNESS OATH
CHAIR:
Please raise your right hand and be
sworn in as a witness.
Do you swear or affirm that the evidence
you are about to give will be the truth, the
whole truth, and nothing but the truth?
WITNESS S NAME: . ..
ANSWER:
Pursuant to §90.605(1), Florida Statutes . The witness s answer shall
be noted in the record.
COMMITTEE NAME: ¦ ¦, .. I ¦.
DATE:
Attach in Session Organizer S-002 (02/11/2020)
The Florida Senate
appearance record
(De er BOTH copies of this fo™ to the Senator or Senate Professions, Staff conduct ng the meet ng)
Bill Number (if applicable)
Topic
Amendment Barcode (if applicable)
Name
Job Title
Street Phone
Clty7 tate
Zip
I2%] For Q Against |~| Information
Waive Speaking: O In Support H Against
(The Chair will read this information into the record.)
Representing
Appearing at request of Chair: Yes No
Lobbyist registered with Legislature: IS l Yes | | No
This form is part of the public record for this meeting.
The Florida Senate
/ z appea ance record
<De"Ver B°TH PteS Of WS ,Om 10 °r Se"ate Protei™' Staff conduct the meeting)
Sting pite
bill Number (if applicable)
Topic
Amendment Barcode (if applicable)
ame
Job Title
Address J07 C
Street Phone
Clfy / state Email
Speaking: Q or Against Information
Waive Speaking: O In Support O Against
(The Chair will read this information into he record.)
Representing
Appearing at request of Chair: F Yes No
Lobbyist registered with Legislature: ( Yes No
This form is part of the public record for this meeting.
THE FLORIDA SENATE COMMITTEES:
Community Affairs, Chair
Tallahassee, Florida 32399-1100 Agriculture, Vice Chair
Appropriations Subcommittee on Agriculture,
Environment, and General Government
Education
Ethics and Elections
Judiciary
SELECT COM ITTEE:
Select Committee on Pandemic
Preparedness and Response
SENATOR JENNIFER BRADLEY JOINT COMMITTEES:
Joint Legislative Auditing Committee
5th District Joint Select Committee on Collective Bargaining
March 8, 2021
Senator Ed Hooper, Chairman
Senate Committee on Commerce and Tourism
310 Knott Building
404 South Monroe Street
Tallahassee, Florida 32399-1100
Dear Mr. Chairman:
I respectfully request that Senate Bill 1734 be placed on the agenda of Committee on
Commerce at your earliest convenience. The bill seeks to increase the privacy rights of Floridians
as it pertains to personal data collected and sold by businesses.
Thank you for your consideration of this request.
Sincerely.
cc: Todd McKay
Kathryn Vigrass
REPLY TO:
1279 Kingsley Avenue, Kingsley Center, Suite 117, Orange Park, Florida 32073 (904) 278-2085
324 Senate Building, 404 South Monroe Street, Tallahassee, Florida 32399-1100 (850) 487-5005
Senate s Website: www.flsenate.gov
WILTON SIMPSON AARON BEAN
President of the Senate President Pro Tempore
YOU MUST PRINT AND DELIVER THIS
FORM TO THE ASSIGNED TESTI ONY OOM
The Florida Senate
03.22.21
Meeting Date appearance record 1734
Bill N mber (if applicable)
Topic Consumer Data Privacy
Amendment Barcode (if applicable)
Name Will am Large
Job itle President
A dress 10 South Monroe Street
Street ' Phone 850-222-0170
allahassee FL
City 32301 Email William@fljustice.org
State Zip
Speaking: For Against Information
W.aive Speaking: In Support EjAqainst
(The Ch r wm read this information int lPa rec rd
Representing Flori a Justice Reform Institute
Appearing at request of Chair: Fl Yes l Nn i .
™,, feaSenatez 0Yes_..
No
This form is part of the public record for this meeting.
YOU MUST PRINT AND DELIVER THIS FOR TO THE ASSIGNED TESTI ONY ROOM
The Florida Senate
3/23/2021 APPEARANCE RECORD 1734
Meeting Date Bill Number (if applicable)
122682
Topic Consumer Data Privacy Amendment Barcode (if applicable)
Name ake Fa™ 1©1
Job Title Director of Government Affairs
Address S Adams St Phone 352-359-6835
Street
Tallahassee FL 32301 Email jake@frf.org
City State Zip
Speaking: For [Against Information Waive Speaking: In Support Against
(The Chair will read this information into the record.)
Representing Florida Retail Federation
Appearing at request of Chair: Lobbyist registered with Legislature: Yes No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROOM Reset Form
The Florida Senat
1734
March 22, 2021 APPEARANCE RECORD
Meeting Date Bill Number (if applicable)
122682
Topic Amendment Barcode (if applicable)
Name Tim Nun9esser
Job Title Legislative Director
Address 110 East Jefferson Street Phone 850-445-5367
Street
Tallahassee FL 32301 Email Tim.nungesser@nfib.org
City State Zip
Speaking: |For Against Information Waive Speaking: In Support Against
(The Chair will read this information into the record.)
Representing NFIB
Appearing at request of Chair: Yes * Inq Lobbyist registered with Legislature: Yes No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This fo m is part of the public record for this meeting. S-001 (10/14/14)
OU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
3/23/21 APPEARANCE RECORD SB 1734
Meeting Date Bill Number (if applicable)
122682
Topic Consumer Data Privacy Amendment Barcode (if applicable)
Name Brewster Bevis
Job Title Senior Vice President
Address 516 N. Adams St Phone 224-7173
Street
Tallahassee FL 32301 Email bbevis@aif.com
City State Zip
Speaking: For Against Information Waive Speaking: In Support Against
(The Chair will read this information into the record.)
Representing Associated Industries of Florida
Appearing at request of Chair: Lobbyist registered with Legislature: Yes |No
While it is a S nate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
YOU MUST PRINT AND DELIVER THIS FOR TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
3/22/21 APPEARANCE RECORD SB 1734
Meeting Date
Bill Number (if applicable)
122682
Topic Consumer Data Privacy
Amendment Barcode (if applicable)
Name Carolyn Johnson
Job Title Senior Policy Director
Address 36 S Bronough Street Phone 850-521-1200
Street
Tallahassee FL 32301 Email cjohnson@flchamber.com
city State Zip
Speaking: For Against Information Waive Speaking: In Support ' .
Against
(The Chair will read this information into the record.)
Representing Florida Cha ber of Com erce
Appearing at request of Chair: Yes No Lobbyist registered with Legislature: Yes No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting.
S-001 (10/14/14)
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
3/23/21 APPEARANCE RECORD SB 1734
Meeting Date Bill Number (if applicable)
589178
Topic Consumer Data Privacy Amendment Barcode (if applicable)
Name Brewster Bevis
Job Title Senior Vice President
Address 516 N. Adams St Phone 224-7173
Street
Tallahassee FL 32301 Email bbevis@aif.com
City State Zip
Speaking: [For Against Information Waive Speaking: In Support Against
(The Chair will read this information into the record.)
Representing Associated Industries of Florida
Appearing at request of Chair: Yes No Lobbyist registered with Legislature: Yes No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROOM Reset Form
The Florida Senate
March 22, 021 1734
APPEARANCE RECORD
Meeting Date Bill Number (if applicable)
589178
Topic Amendment Barcode (if applicable)
Name ungesser
Job Title L gis ative Director
Address 110 Jefferson Street Phone 850-445-5367
Street
Tallahassee FL 32301 Email Tim-nungesser@nfib.org
City State
Speaking: For Against Information Waive Speaking: In Support Against
(The Chair will read this information into the record.)
Representing FIB
Appearing at request of Chair: Yes I Inq Lobbyist registered with Legislature: Yes No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROO
The Florida Senate
03.22.21 APPEARANCE RECORD 1734
Meeting Date Bill Numbej f applicable)
Topic Consumer Data Privacy Amendment Ba code (if applicable)
Name William Large
Job Title President
Address 210 South Monroe Street Phone 850-222-0170
Street
Tallahassee FL 32301 Email William@fljustice.org
City State Zip
Speaking: For Against Information Waive Speaking: In Support Against
(The Chair will read this information into the record.)
Representing Florida Justice Reform Institute
Appearing at request of Chair: Yes l l No Lobbyist registered with Legislature: l lves No
While it Is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public r cord for this m eting. S-001 (10/14/14)
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTI ONY ROOM
The Florida Senate
3/23/2021 APPEARANCE RECORD 1734
Meeting Date Bill Number (if applicable)
589178
Topic Consumer Data Privacy Amendment Barcode (if applicable)
Name Farmer
Job Title Director of Government Affairs
Address Adams St Phone 352-359-6835
Street
Tallahassee FL 32301 Email jake@frf.org
City State Zip
Speaking: (For [Against Information Waive Speaking: In Support Against
(The Chair will read this information into the record.)
Representing Florida Retail Federation
Appearing at request of Chair: Yes No Lobbyist registered with Legislature: lYes |no
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
3/22/21 APPEARANCE RECORD SB 1734
Meeting Date Bill Number (if applicable)
589178
Topic Consumer Data Privacy
Amendment Barcode (if applicable)
Name Carolyn Johnson
Job Title Senior Policy Director
Address 136 S Bronough Street Phone 850-521-1200
Street
Tallahassee FL 32301 Email cjohnson@flchamber.com
City State Zip
Speaking: For Against Information Waive Speaking: In Support Against
(The Chair will read this information into the record.)
Representing Florida Chamber of Commerce
Appearing at request of Chair: Yes I Inq Lobby st registered with Legislature: Yes | No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is pa t of the public record for this meeting. S-001 (10/14/14)
YOU MUST PRINT AND DELIVER THIS FOR TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
03.22.21 APPEARANCE RECORD 1734
Meeting Date Bill Number (if applicable)
482404
Topic Consumer Data Privacy
Amendment Barcode (if applicable)
Name William Large
Job Title President
Address 210 South Monroe Street Phone 850-222-0170
Street
Tallahassee FL 32301 Email VVilliam@fljustice.org
City State Zip
Speaking: For Against Information Waive Speaking: In Support Against
|/w
(The Chair will read this information into the record.)
Representing Florida Justice Reform Institute
Appearing at request of Chair: Lobbyist registere with Legislature: l lves No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to sp ak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
YOU MUST PRINT AND DELIVER THIS FOR TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
03.22.21 APPEARANCE RECORD 1734
Meeting Date Bill Number (if applicable)
Topic Consumer Data Privacy
Amendment Barcode (if applicable)
Name . iliam Large
Job Title President
Address South Monroe Street Phone 850-222-0170
Street
Tallahassee FL 32301 Email VV lliam@fljustice.org
City State Zip
S eaking: For 2 Against Information Waive Speaking: In Support
Against
(The Chair will read this information into the record.)
Representing Florida Just ce Reform Institute
Appearing at request of Chair: Yes l l No Lobbyist registered with Legislature: Yes No
Vl/hile it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form Is part of the public record for this meeting. S-001 (10/14/14)
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
3/23/2021 APPEARANCE RECORD 1734
Meeting Date
Bill Number (if applicable)
Topic Consumer Data Privacy
Amendment Barcode (if applicable)
Name ake Farmer
Job Title Director of Government Affairs
Address S Adams St Phone 352-359-6835
Street
Tallahassee FL 32301 Email jake@frf.org
City State
Speaking: For | * | Against Information Waive Speaking: I I In Sup ort (Against
(The Chair will read this information into the record.)
Representing Florida Reta l Federation
Appearing at request of Chair: (Yes No Lobbyist registered with Legislature: Yes No
VWvfe it is a Senate tradition to encourage public testimony, time may not permit al! persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
The Florida Senate
APPEARANCE RECORD
(Deliver BOTH copies of this form to the Senator or Senate Professional Staff conducting the eeting)
r Meeting Date
Bill Number (if applicable)
Topic Amendment Barcode (if applicable)
Name
Job Title
Address / / Phone
Si
Email
State Z'P
ainst I I Information Waive Speaking: |~] In Support | | Against
(The Chair will read this information into the record.)
Representing
Appearing at request of Chair: j | Yes Lobbyist registered with Legislature: No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meetina. Q_nn< A/H Ai-t
YOU THIS F0RM T0 THE ASSIGNED testimony roo
The Florida Senat
3/22/21
Meeting Date
APPEARANCE RECORD SB 1734
Bill Number (if applicable)
Topic Consumer Data Privacy
Amendment Barcode (if applicable)
Name Brewster Bevis
Job Title Senior Vice President
Ad ress N. Adams St
SfreeZ
Phone 224-7173
Tallahassee FL 32301
City ~zip Email bbevis@aif.co
State
Speaking: For Against Information Waive Speaking: In Support | gainst
(The C air will read this information into the record.)
Representing Associated Industries of Florida
Appearing at request of Chair:
Lobbyist registered with Legislature: Yes o
this
This form is part of the public record for this meeting.
S-001 (10/14/14'1
YOU MUST PRINT AND DELIVER THIS FOR TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
March 22, 2021 APPEARANCE RECORD 1734
Meeting Date Bill Number (if applicable)
Topic Consumer Data Privacy
Amendment Barcode (if applicable)
Name J°hn Rothell
Job Title Sr- Director of Governmental Affairs
Address 3 92 Coolidge Court Phone 850-322-1635
Street
Tallahassee FL 32311 Email John.rothell@lscu,coop
City State Zip
Speaking: For Against Information Waive Speaking: In Support Against
(The Chair will read this information into the record.)
Representing Florida Credit Union Association
Appearing at request of Chair: Yes l l No Lobbyist registered with Legislature: iYes |No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
YOU MUST PRINT AND DELIVER THIS FOR TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
March 22, 2021 APPEARANCE RECORD 1734
Meeting Date Bill Number (if applicable)
Topic Consumer Data Privacy Amendment Barcode (if applicable)
Name Michael Carlson
Job Title President
Address 215 S. Monroe St. Ste. 835 Phone 850-544-9576
Street
Tallahassee FL 32301 Email rnichael.carlson@piff.net
City State Zip
Speaking: For Against Information Waive Speaking: In Support Iv lAgainst
(The Chair will read this information into the record.)
Representing Personal Insurance Federation of Florida, Inc.
Appearing at request of Chair: Yes No Lobbyist registered with Legislature: Yes I No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public ecord for this meeting. S-001 (10/14/14)
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: CS/SB 1734
INTRODUCER: Commerce and Tourism Committee and Senator Bradley
SUBJECT: Consumer Data Privacy
DATE: March 23, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Harmsen McKay CM Fav/CS
2. AP
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1734 creates the Florida Privacy Protection Act (Act) to grant Florida’s consumers the
ability to share their personal information as they wish, in a way that is safe and that they
understand and control.
The Act generally applies to businesses that collect Florida consumers’ personal information,
and that either have a gross revenue of $25 million or more; earn 50 percent of their revenue
from the sale or sharing of personal information; or buy, receive, sell, or share the personal
information of 50,000 or more consumers in a year.
The Act grants consumers the right to:
Opt-out of the sale of their personal information;
Know what personal information a business has collected about them;
Delete their personal information;
Correct their personal information;
More stringently control the sale of their minor child’s personal information.
Businesses subject to the Act must give consumers notice of their privacy rights, that their
personal information may be sold and collected, and that the consumer may opt-out of the sale of
his or her personal information. A consumer’s opt-out would prevent the sale of his or her data to
third-party data brokers, data profiling procedures, and targeted advertisements based on the
consumer’s activity at more than one website. Additionally, the act requires covered businesses
BILL: CS/SB 1734 Page 2
to implement data security measures to ensure the continued privacy of the personal information
they hold.
A consumer may pursue a private civil action based on a business’ violation of the Act. The
Florida Department of Legal Affairs also has enforcement authority pursuant to the bill.
The bill takes effect on January 1, 2022.
II. Present Situation:
Americans are concerned about how much of their data is being collected, and many feel that
their information is less secure than it used to be.1 Further, 84 percent of Americans say they feel
very little or no control over the data that is collected about them by both the government and
private companies.2 Despite this concern—very few read provided privacy policies in full, if at
all.3
Consumer internet connectivity has increased in recent years, allowing consumer data to be
collected not only from a personal computer, but also a smartwatch, phone, smart speaker, and
even a home appliance.4 It is expected that the value of such connected devices and “the
ecosystem in which they operate” will exceed four trillion dollars per year by 2025. 5
Consumer data is most commonly tracked through the placement of ‘cookies’—files that a
website places in the user’s device—or more sophisticated “fingerprinting” techniques.6 These
technologies allow websites to, e.g., store a password that a consumer previously entered, but
also allow websites to follow the consumer’s use patterns at other websites and to tailor their
activities and advertisements to the consumer as a result of information it gleans.7 Certain
commercial businesses collect this information and create a consumer profile that describes
1
Brooke Auxier and Lee Rainie, PEW RESEARCH CENTER, Key Takeaways on Americans’ Views About Privacy, Surveillance
and Data-Sharing (Nov. 15, 2019), https://www.pewresearch.org/fact-tank/2019/11/15/key-takeaways-on-americans-views-
about-privacy-surveillance-and-data-sharing/ (last visited Mar. 23, 2021). See also, Brooke Auxier, Lee Rainie, Monica
Anderson, Andrew Perrin, Madhu Kumar, and Erica Turner, PEW RESEARCH CENTER, Americans and Privacy: Concerned,
Confused and Feeling Lack of Control Over their Personal Information at 2 (Nov. 15, 2019), available at
https://www.pewresearch.org/internet/wp-content/uploads/sites/9/2019/11/Pew-Research-
Center_PI_2019.11.15_Privacy_FINAL.pdf (last visited Mar. 23, 2021).
2
Auxier, et. al, Americans and Privacy: Concerned, Confused and Feeling Lack of Control Over their Personal Information
at 7.
3
Id. at 5.
4
See, e.g., Oracle, What is IoT [Internet of Things]?, https://www.oracle.com/internet-of-things/what-is-iot/ (last visited Mar.
23, 2021). Stephen Mulligan, Wilson Freeman, Chris Linebaugh, Congressional Research Service, Data Protection Law: An
Overview at 1 (Mar. 25, 2019), https://crsreports.congress.gov/product/pdf/R/R45631 (last visited Mar. 23, 2021).
5
Commissioner Rebecca K. Slaughter, Federal Trade Commission, Raising the Standard: Bringing Security and
Transparency to the Internet of Things? (July 26, 2018),
https://www.ftc.gov/system/files/documents/public_statements/1395854/slaughter_-_raising_the_standard_-
_bringing_security_and_transparency_to_the_internet_of_things_7-26.pdf (last visited Mar. 23, 2021).
6
NPR.ORG, Online Trackers Follow our Digital Shadow by ‘Fingerprinting’ Browsers, Devices (Sep. 26, 2016),
https://www.npr.org/sections/alltechconsidered/2016/09/26/495502526/online-trackers-follow-our-digital-shadow-by-
fingerprinting-browsers-devices (last visited Mar. 23, 2021).
7
Wharton School of Business, University of Pennsylvania, Your Data is Shared and Sold…What’s Being Done About It?
(Oct. 28, 2019), https://knowledge.wharton.upenn.edu/article/data-shared-sold-whats-done/ (last visited Mar. 23, 2021).
BILL: CS/SB 1734 Page 3
possible interests or characteristics, and ultimately target ads for their products at the consumer.8
Other companies—data brokers—collect and sell consumer data as their main business
operation.9
Policy regarding consumer data has two prongs: privacy and security. Data privacy concerns
how companies collect, use, and disseminate personal information; data security concerns how
companies protect the personal information they hold from unauthorized access or use and
respond to such breaches.10 Federal and state governments have addressed data privacy and
security to a certain extent, largely by targeting specific industries (e.g., healthcare and financial
institutions) or types of data (such as children’s personal information).11 States have recently
begun to legislate more comprehensively to protect data privacy.12
Florida Information Protection Act (FIPA)13
FIPA is a data security measure that requires governmental entities, specific business entities,
and any third-party agent that holds or processes personal information on behalf of these entities
to take reasonable measures to protect a consumer’s personal information. Additionally, FIPA
requires covered business entities14 that are subject to data breaches to attempt to remediate the
breach by notification to affected consumers in Florida, and in cases where more than 500
individual’s information was breached—by additional notification to the Department of Legal
Affairs (DLA).15 If the breach affected more than 1,000 individuals in Florida, the entity must
also notify credit reporting agencies, with certain exceptions.16
FIPA defines “personal information” as:
online account information, such as security questions and answers, email addresses, and
passwords; and
an individual’s first name or first initial and last name, in combination with any one or more
of the following information regarding him or her:
o A social security number;
8
Max Freedman, BUSINESS NEWS DAILY, How Businesses are Collecting Data (and What They’re Doing With It) (Jun. 17,
2020), https://www.businessnewsdaily.com/10625-businesses-collecting-data.html (last visited Mar. 23, 2021).
9
Lois Beckett, PROPUBLICA, Everything We Know About What Data Brokers Know About You (June 13, 2014),
https://www.propublica.org/article/everything-we-know-about-what-data-brokers-know-about-you (last visited Mar. 23,
2021).
10
See, e.g., Andrew Burt and Dan Geer, Data Protection for the Disoriented, From Policy to Practice 9 (2018), available at
https://www.lawfareblog.com/flat-light-data-protection-disoriented-policy-practice (last visited Mar. 23, 2021).
11
Stephen Mulligan, Wilson Freeman, Chris Linebaugh, Congressional Research Service, Data Protection Law: An
Overview at 7-8 (Mar. 25, 2019), https://crsreports.congress.gov/product/pdf/R/R45631 (last visited Mar. 23, 2021).
12
NCSL, 2020 Consumer Data Privacy Legislation (Jan. 17, 2020), https://www.ncsl.org/research/telecommunications-and-
information-technology/2020-consumer-data-privacy-legislation637290470.aspx (last visited Mar. 23, 2021).
13
Section 501.171, F.S.; Chapter 2014-189, Laws of Fla. (FIPA expanded and updated Florida’s data breach disclosure laws
contained in s. 817.5681, F.S. (2013), which was adopted in 2005 and repealed in 2014).
14
A “covered entity” is a sole proprietorship, partnership, corporation, trust, estate, cooperative, association, or other
commercial entity that acquires, maintains, stores, or uses personal information. Section 501.171(1)(b), F.S.
15 Florida Office of the Attorney General, How to Protect Yourself: Data Security,
http://myfloridalegal.com/pages.nsf/Main/53D4216591361BCD85257F77004BE16C (last visited Mar. 23, 2021). Section
501.171(3)-(4), F.S.
16 Section 501.171(3)-(6), F.S.
BILL: CS/SB 1734 Page 4
o A driver license or similar identity verification number issued on a government
document;
o A financial account number or credit or debit card number, in combination with any
required security code, access code, or password that is necessary to permit access to an
individual’s financial account; or
o Medical history information or health insurance identification numbers.17
Personal information does not include information:
About an individual that a federal, state, or local governmental entity has made publicly
available; or
That is encrypted, secured, or modified to remove elements that personally identify an
individual or that otherwise renders the information unusable.18
FIPA does not provide a private cause of action, but authorizes the DLA to file charges against
covered entities under Florida’s Unfair and Deceptive Trade Practices Act (FDUTPA).19
In addition to the remedies provided for under FDUTPA, a covered entity that fails to notify
DLA, or an individual whose personal information was accessed, of the data breach is liable for a
civil penalty of $1,000 per day for the first 30 days of any violation; $50,000 for each subsequent
30-day period of violation; and up to $500,000 for any violation that continues more than 180
days. These civil penalties apply per breach, not per individual affected by the breach.
Federal Privacy Regulations
Gramm-Leach Bliley Act (GLBA)20
The GLBA governs financial institutions’ use and protection of nonpublic personal information
(NPI).21 A financial institution is any institution that engages in financial activities, such as
banks, real estate appraisers and title companies, consumer-financing companies, insurance
underwriters and agents, wire transfer agencies, check cashing stores, and mortgage brokers.22
A financial institution cannot share (1) NPI with non-affiliated third parties unless they notify the
consumer of their intent to do so and provide a chance to opt-out; and (2) a consumer’s account
or credit card numbers with third parties for direct marketing. The financial institution must also
17 Section 501.171(1)(g)1., F.S.; OAG supra note 15.
18 Section 501.171(1)(g)2., F.S.
19 Section 501.171(9), (10), F.S.; OAG supra note 15.
20
15 U.S.C. §§ 6801-6809. See generally, Stephen Mulligan, Wilson Freeman, Chris Linebaugh, Congressional Research
Service, Data Protection Law: An Overview pp. 8-10 (Mar. 25, 2019), https://crsreports.congress.gov/product/pdf/R/R45631
(last visited Mar. 23, 2021).
21
The GLBA defines “nonpublic personal information” as “personally identifiable information” that is not publicly available
and is either provided by the consumer to a financial institution, resulting from any transaction with the consumer or any
service performed for the consumer, or otherwise obtained by the financial institution. 15 U.S.C. § 6809(9).
22
Federal Trade Commission, Financial Institutions and Customer Information: Complying with the Safeguards Rule: Who
Must Comply?, https://www.ftc.gov/tips-advice/business-center/guidance/financial-institutions-customer-information-
complying (last visited Mar. 23, 2021).
BILL: CS/SB 1734 Page 5
send an annual notice to the consumer that clearly and conspicuously describes the institution’s
privacy policies and practices.23
The financial institution must also ensure the security and confidentiality of a customer’s (which
requires an ongoing relationship with the financial institution) NPI by establishing concrete
security policies, by, e.g., designating an information security program coordinator and
implementing a risk assessment process.24
The Consumer Financial Protection Bureau, Federal Trade Commission, and federal banking
agencies share civil enforcement authority of the GLBA. Certain civil remedies and criminal
liabilities are available for violations of the data security and protection provisions of the GLBA,
but there is no private cause of action.
Health Insurance Portability and Accountability Act (HIPPA)25 and its Related Rules
HIPPA requires federal agencies to create national standards to protect sensitive patient health
information from disclosure without the patient’s consent or knowledge. HIPPA’s two pertinent
implementing rules are the Privacy Rule and the Security Rule.26
The Privacy Rule addresses the use and disclosure of individual’s protected health information
(PHI) by covered entities.27, 28 PHI is information, including demographic data, that can be used
to identify the individual, and that relates to the individual’s:
Past, present, or future physical or mental health or physical condition;
Health care; or
Payment for past, present, or future health care.
A common example of PHI is a patient’s name, address, birth date, or social security number.
However, PHI does not include de-identified health information or employment-related records.
The Privacy Rule protects PHI that is held or transmitted by a covered entity or its business
associate by preventing covered entities from disclosing PHI without the patient’s consent or
knowledge unless it is being used or shared for treatment, payment, or healthcare operations or
for another exempt purpose.
These covered entities must prominently post an electronic notice and give notice upon a specific
request to patients regarding the manners in which they use and disclose PHI. A covered entity
23
The notice must specifically include the categories of NPI the financial institution collects and discloses, the types of third
parties with which it shares NPI, and how it protects consumers’ NPI.
24
See, 16 C.F.R. § 314.4
25
42 U.S.C. § 1320.
26
See generally, Stephen Mulligan, Wilson Freeman, Chris Linebaugh, Congressional Research Service, Data Protection
Law: An Overview pp. 10-12 (Mar. 25, 2019), https://crsreports.congress.gov/product/pdf/R/R45631 (last visited Mar. 23,
2021).
27
45 C.F.R. §160 and 164. See also, Department of Health and Human Services, Summary of the HIPPA Privacy Rule, (Jul.
26, 2013) https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html (last visited Mar. 23, 2021).
28
A covered entity is a health plan, health care clearinghouse, health care provider who transmits health information in
electronic form, and these entities’ business associates.
BILL: CS/SB 1734 Page 6
must also provide an accounting of disclosures it has made of a patient’s PHI upon his or her
request as well as a copy of his or her PHI.
The Security Rule applies to the subset of identifiable health information that a covered entity
creates, receives, maintains, or transmits in electronic form called “electronic protected health
information” (e-PHI).29 The Security Rule does not apply to PHI that is transmitted orally or in
writing. A covered entity must comply with the Security Rule by:
Ensuring the confidentiality, integrity, and availability of all e-PHI;
Detecting and safeguarding against anticipated threats to the security of the information;
Protecting against anticipated impressible uses or disclosures; and
Certifying compliance by their workforce.
The Department of Health and Human Services may institute a civil enforcement under HIPPA
and may seek civil penalties. The Department of Justice may institute criminal proceedings
against a violator who knowingly obtained or disclosed PHI. There is no private cause of action
under HIPPA.
Federal Policy for the Protection of Human Subjects (“Common Rule”)
The Common Rule is promulgated by the U.S. Food and Drug Administration (FDA) and
governs the ethical conduct of research involving human subjects.30 Twenty federal agencies and
departments are party to this rule. The Common Rule mandates that researchers protect the
privacy of subjects and maintain confidentiality of human subject data, among other
requirements.31
Fair Credit Reporting Act (FCRA)32
The FCRA promotes the accuracy, fairness, and privacy of information that consumer reporting
agencies and their related entities collect.33 The FCRA governs the acts of credit reporting
agencies (CRAs), entities that furnish information to CRAs (furnishers), and individuals who use
credit reports issued by CRAs. Specifically, CRAs and their furnishers must adopt methods to
ensure the information they collect and report is accurate.
Individuals can review the information a CRA has collected on them to ensure that it is accurate,
and may dispute its accuracy—which triggers a CRA’s and furnisher’s duty to reinvestigate the
information. Individuals may also request to review the information a CRA has in his or her file,
the sources of the information, and the identity of those to whom the information was disclosed.
29
45 C.F.R. §164.302-318.
30
21 C.F.R. §§ 50, 60.
31
See generally, Health and Human Services, Federal Policy for the Protection of Human Subjects (‘Common Rule’) (Mar.
18, 2016), https://www.hhs.gov/ohrp/regulations-and-policy/regulations/common-rule/index.html (last visited Mar. 23,
2021).
32
15 U.S.C. §1681.
33
Consumer Finance Bureau, A Summary of Your Rights Under the Fair Credit Reporting Act (Sept. 18, 2018), 12 CFR
1022, available at https://www.consumer.ftc.gov/articles/pdf-0096-fair-credit-reporting-act.pdf (last visited Mar. 23, 2021).
See also, Federal Trade Commission, Fair Credit Reporting Act, https://www.ftc.gov/enforcement/statutes/fair-credit-
reporting-act (last visited Mar. 23, 2021).
BILL: CS/SB 1734 Page 7
A CRA cannot provide information in a consumer report to anyone who does not have a
specified purpose in the FCRA.34
The FTC and Consumer Finance Protection Bureau share civil enforcement authority of the
FCRA. A person who willfully obtains consumer information from a CRA under false pretenses
is subject to criminal prosecution. An individual may also pursue a private right of action if he or
she was injured by willful or negligent actions.35
Children’s Online Privacy Protection Act (COPPA)36
COPPA and its related rules regulate websites’ collection and use of children’s information. The
operator of a website or online service that is directed to children, or that has actual knowledge
that it collects children’s personal information (covered entities), must comply with requirements
regarding data collection and use, privacy policy notifications, and data security.
COPPA defines personal information as individually identifiable information about an individual
that is collected online, including:
A first and last name;
A home or other physical address, e-mail address, telephone number, or any other identifier
that the FCC determines could permit one to contact someone physically or online, such as a
screen name;
A social security number;
A persistent identifier that can be used to recognize a user over time and across different
websites;
A photograph, video, or audio file that contains a child’s image or voice;
A geolocation information that is sufficient to identify the user’s location; or
Information concerning the child or parents that the operator collects from the child and
combines with any other identifier described above.
A covered entity may not collect a child’s (individual under the age of 13) personal information
without the prior, verifiable consent of his or her parent.37
COPPA further requires covered entities to:38
Give parents direct notice of their privacy policies, including a description of their data
collection and sharing practices;
Post a clear link to their privacy policies on their home page and at each area of their website
where they collect personal information from children;
34
Permissible purposes include employment, insurance underwriting that involves the consumer, evaluating the consumer’s
eligibility for licensure or other governmental benefit that considers the applicants financial responsibility or status, or a
legitimate business need. 15 U.S.C. § 1681b(a).
35
An individual may record actual damages, attorney’s fees, litigation costs, and in the case of willful violations—statutory
damages ranging from $100 to $1,000 and punitive costs as the court deems appropriate. 15 U.S.C. § 1681n(a).
36
16 C.F.R. pt. 312.
37
15 U.S.C. §§ 6502(a)-(b).
38
See, Federal Trade Commission, General Questions About the COPPA Rule: What is the Children’s Online Privacy
Protection Rule?, https://www.ftc.gov/tips-advice/business-center/guidance/complying-coppa-frequently-asked-questions-0
(last visited Mar. 23, 2021).
BILL: CS/SB 1734 Page 8
Institute procedures to protect the personal information that they hold;
Ensure that any third party with which they share collected personal information implements
the same protection procedures; and
Delete children’s personal information after the purpose for its retention has been fulfilled.
Violations of COPPA are deemed an unfair or deceptive act or practice and are therefore
prosecuted by the FTC. COPPA also authorizes state attorneys general to enforce violations that
affect residents of their states. There is no criminal prosecution or private right of action
provided for under COPPA.39
Driver’s Privacy Protection Act (DPPA)40
The DPPA prohibits state Departments of Motor Vehicle (DMVs) from releasing an individual’s
personal information obtained by the DMV in connection with a motor vehicle record, subject to
certain exceptions, such as a legitimate government need. Additionally, the DPPA requires
DMVs to obtain an individual’s consent to enable the sale or release of personal motor vehicle
record to a third-party marketer.
Violations of the DPPA are subject to criminal fine. Additionally, a private individual affected
by the improper disclosure or use of his or her personal information may bring a private civil
action against the violator.41
Family Educational Rights and Privacy Act (FERPA)42
FERPA protects the privacy of student’s education records. The law applies to any school that
receives applicable funds from the U.S. Department of Education. FERPA grants parents certain
rights respecting their child’s education records, and this privacy right transfers to the student
when he or she reaches age 18 or attends a post-secondary school.
Schools may disclose, without consent, directory information, such as a student’s name, address,
telephone number, birthday, place of birth, honors and awards, and dates of attendance.
However, schools must disclose and allow parents and students to opt out of the disclosure of
their directory information.
Schools must give an annual notice about rights granted by FERPA to affected parties.43
39
Federal Trade Commission, General Questions About the COPPA Rule: COPPA Enforcement, https://www.ftc.gov/tips-
advice/business-center/guidance/complying-coppa-frequently-asked-questions-0 (last visited Mar. 23, 2021).
40
18 U.S.C. §2721.
41
18 U.S.C. § 2724. See generally, Electronic Privacy Information Center, The Drivers Privacy Protection Act (DPPA) and
the Privacy of Your State Motor Vehicle Record, https://epic.org/privacy/drivers/ (last visited Mar. 23, 2021).
42
20 U.S.C. §1232(g); 34 C.F.R. § 99.
43
U.S. Department of Education, Family Educational Rights and Privacy Act (FERPA), (Dec. 15, 2020)
https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html (last visited Mar. 23, 2021).
BILL: CS/SB 1734 Page 9
Federal Trade Commission Act (FTC Act)
The FTC protects consumer data privacy by acting under Section 5 of the FTC Act, which bars
unfair and deceptive acts and practices that affect commerce.44 Specifically, the FTC prosecutes
companies that act unfairly or deceptively when they gather, use, or disclose personal
information in a manner that contradicts their posted privacy policy or other statements, or fail to
implement reasonable data security safeguards.45
For example, the FTC prosecuted both Sears and Upromise for drafting misleading privacy
policies that did not fully disclose the extent to which a consumer’s online browsing would be
tracked.46
The FTC generally cannot seek civil penalties for violations of the FTC Act, but may asses civil
monetary penalties for repeated offenses.47 There is no private right of action granted under the
FTC Act.
General Data Protection Regulation (GDPR)—European Union
The GDPR protects individual personal data and restricts entities’ use of personal data,
especially those that exercise overall control over the purpose and means of processing personal
data (controllers) or that process data on behalf of, or at the instruction of controllers
(processors).48 A controller or processor is required to comply with the GDPR if it has activity in
the European Union—even a minimal one, and regardless of where the data processing occurs.49
Personal data is defined as any information that relates to an identified or identifiable person, and
can include names, identification numbers, location data, cookies, and any other information
through which an individual can be directly or indirectly identified.50 A processor and controller
must receive express consent from an individual before they can collect or process his or her
44
15 U.S.C. § 1681. Federal Trade Commission, Privacy and Security Enforcement, https://www.ftc.gov/news-events/media-
resources/protecting-consumer-privacy/privacy-security-enforcement (last visited Mar. 23, 2021).
45
Stephen Mulligan, Wilson Freeman, Chris Linebaugh, CONGRESSIONAL RESEARCH SERVICE, Data Protection Law: An
Overview p. 30-35 (Mar. 25, 2019), https://crsreports.congress.gov/product/pdf/R/R45631 (last visited Mar. 23, 2021).
46
See, e.g., Federal Trade Commission, Membership Reward Service Upromise Penalized for Violating FTC Order (Mar. 17,
2017) Stephen Mulligan, Wilson Freeman, Chris Linebaugh, Congressional Research Service, Data Protection Law: An
Overview p. 42 (Mar. 25, 2019), https://crsreports.congress.gov/product/pdf/R/R45631 (last visited Mar. 23, 2021); and
Complaint In the Matter of Sears Holdings Mgmt Co., No. C-4264 (F.T.C. Aug. 31, 2009).
47
Federal Trade Commission, FTC’s Use of Its Authorities to Protect Consumer Privacy and Security at 4 (2020), available
at https://www.ftc.gov/system/files/documents/reports/reports-response-senate-appropriations-committee-report-116-111-
ftcs-use-its-authorities-resources/p065404reportprivacydatasecurity.pdf (last visited Mar. 23, 2021).
48
See generally, Stephen Mulligan, Wilson Freeman, Chris Linebaugh, CONGRESSIONAL RESEARCH SERVICE, Data
Protection Law: An Overview p. 42 (Mar. 25, 2019), https://crsreports.congress.gov/product/pdf/R/R45631 (last visited Mar.
23, 2021).
49
GDPR, art. 3.
50
GDPR, art. 4(1). See, U.K. Information Commissioner’s Office, Guide to General Data Protection Regulation: What is
Personal Data?, https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-
gdpr/key-definitions/what-is-personal-data/ (last visited Mar. 23, 2021).
BILL: CS/SB 1734 Page 10
personal data. The language must give a clear choice that is not based on an overbroad or overly
complex question.51
The GDPR requires entities subject to the GDPR to provide individuals with a report of their
data that is processed, where it is processed, why it is being processed.52 This report must be
provided to the individual within one month of his or her request.53 If an individual makes a
request that an entity correct or delete his or her personal data held by an entity, the entity must
do so.
State Data Privacy Regulations
Illinois Biometric Information Privacy Act
In 2008, Illinois became the first state to specifically regulate biometric data with the passage of
the Biometric Information Privacy Act (BIPA). BIPA puts in place safeguards and procedures
that relate to the retention, collection, disclosure, and destruction of biometric information and
specifically protects the biometric information of those in Illinois.
BIPA defines biometric data as a retina or iris scan, fingerprint, voiceprint, or scan of hand or
face geometry.
Under BIPA, a private entity:54
That possesses biometric data must have a written policy that establishes a retention schedule
and guidelines for permanently destruction of such data;
Cannot collect, capture, purchase, receive through trade, or otherwise obtain biometric data
unless it receives an informed release from the subject.;
Cannot profit from a person’s biometric data;
Cannot disseminate a person’s biometric data unless the subject consents or provides
authorization, or the entity is required by law or a valid warrant or subpoena; and
Must store, transmit, and protect biometric data with a reasonable standard of care and in a
manner as or more protective as other confidential and sensitive information.
BIPA provides a private cause of action, with relief including liquidated damages, ranging from
$1,000 to $5,000 or actual damages (whichever is greater), attorney’s fees and costs, and other
relief deemed appropriate by a court.55
The Illinois Supreme Court found that an individual need not allege an actual injury or adverse
effect, beyond violation of their rights under BIPA, to qualify as an aggrieved party. Therefore,
anyone whose biometric data is affected by a violation of BIPA may seek liquidated damages or
51
U.K. Information Commissioner’s Office, Guide to General Data Protection Regulation: Consent, https://ico.org.uk/for-
organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/lawful-basis-for-
processing/consent/ (last visited Mar. 23, 2021).
52
Mark Kaelin, TECHREPUBLIC, GDPR: A Cheat Sheet (May 23, 2019), https://www.techrepublic.com/article/the-eu-general-
data-protection-regulation-gdpr-the-smart-persons-guide/ (last visited Mar. 23, 2021).
53
GDPR, arts. 12(3), 15.
54 740 Ill. Comp. Stat. 14/10, 14/15 (2008).
55
740 Ill. Comp. Stat. 14/20 (2008).
BILL: CS/SB 1734 Page 11
injunctive relief under BIPA.56 Court documents also tend to support the notion that an individual
in Illinois has a valid cause of action if their biometric data is taken without consent by a private
entity, including out-of-state entities, but it is subject to a finding of fact.57
California Consumer Privacy Act (CCPA) and California Privacy Rights Act (CPRA)
The CCPA defines personal information as that which identifies, relates to, describes, or is
capable of being associated with or could reasonably be linked, directly or indirectly, with a
particular consumer or household.58 The CCPA grants consumers greater control over their
personal information by, among other provisions, creating the following consumer rights, to:
Know about the personal information that a business collects, specifically about the
consumer, and how it is used and shared;
Delete collected personal information with some exceptions;
Opt-out of the sale of personal information; and
Be treated equally by covered businesses, whether or not an individual has exercised a right
granted by the CCPA.
Additionally, the CCPA requires business to give consumers certain notices that explain their
privacy practices and provide certain mechanisms to allow consumers to opt-out or exercise
other rights regarding their personal information.
The CCPA applies to for-profit businesses that do business in California and that meet any of the
following requirements:
Have a gross annual revenue of over $25 million;
Buy, receive, or sell the personal information of 50,000 or more California residents,
households, or devices; or
Derive 50 percent or more of their annual revenue from selling California residents’ personal
information.
The CPRA, which was approved by voters in a 2020 statewide ballot measure and takes effect on
January 1, 2023, amends and expands upon the CCPA.
The CPRA broadens consumers’ rights by allowing them to:
Prevent businesses from sharing their personal information (CCPA prevents businesses from
selling it);
Correct their inaccurate personal information; and
Limit a business’ use of their sensitive personal information, which includes information
such as a consumer’s geolocation, race, ethnicity, religion, genetic data, private
communications, sexual orientation, and specific health information;
The CPRA redefines businesses subject to the law to include those that buy, sell, or share the
personal information of 100,000 or more consumers or households; this reduces its applicability
56
Rosenbach v. Six Flags Entertainment Corporation, 2019 IL 123186.
57
Rivera v. Google, Inc., 238 F.Supp.3d 1088 (N.D. Ill. 2017); In re Facebook Biometric Information Privacy Litigation, 185
F.Supp.3d 1155 (N.D. Cal. (2016).; Norberg v. Shutterfly, Inc., 152 F.Supp.3d 1103 (N.D. Ill. 2015).
58
Cal. Civ. Code § 1798.140(O)(1).
BILL: CS/SB 1734 Page 12
to small and mid-size businesses. However, CPRA also now applies to businesses that not only
sell personal information, but also ones that share it; it is unclear to what extent this will enlarge
the businesses captured by the regulation. Additionally, the CPRA now prohibits sharing of data
between different entities that make up a joint venture.
The CPRA creates a privacy regulator with implementation and enforcement authority relating to
the CCPA and CPRA. The CPRA also increases penalties by allowing civil penalties for the theft
of consumer login information and increasing the maximum penalties for violations that concern
consumers under the age of 16.
The CPRA also provides that a business that collects personal information cannot retain a
consumer’s personal information or sensitive personal information for longer than is reasonably
necessary.59
CCPA and the Federal Airline Deregulation Act
The federal Airline Deregulation Act expressly preempts state laws that relate to a price, route,
or service of an air carrier.60 California brought an action against Delta Airlines for a violation of
the CCPA because the airline failed to disclose a privacy policy on its mobile application despite
the fact that it collected personally identifiable information about its consumers. This action
failed, however, on the basis that the CCPA was preempted by the Airline Deregulation Act.61
Virginia Consumer Data Protection Act
The Virginia Consumer Data Protection Act (Virginia Act) takes effect on January 1, 2023. The
Virginia act grants consumers the right to access, correct, delete, obtain a copy of, and opt out of
the processing of their personal data for the purposes of targeted advertising.62 The Virginia Act
defines “consumer” only as a natural person who is a resident of Virginia and acts only in an
individual or household context.63
Businesses are subject to the Virginia Act if they operate in Virginia and either (1) control or
process personal data of 100,000 or more consumers or (2) derive over 50 percent of their gross
revenue from the sale of personal data and control or process personal data of at least 25,000
consumers.64
The Virginia Act exempts specific entities that are otherwise regulated by specific federal law,
including those regulated by the GLBA and HIPAA. The Virginia Act also exempts Virginia
59
Mario Meeks, JDSUPRA, The CPRA’s Storage Limitation Requirement is Coming—Practical Tips for Shoring Up Your
Record Retention Practices to Comply (Feb. 18, 2021), https://www.jdsupra.com/legalnews/the-cpra-s-storage-limitation-
9898179/ (last visited Mar. 23, 2021).
60
49 U.S.C.A. § 41713.
61
Harris v. Delta Air Lines, Inc., 247 Cal. App. 4th 884, 202 Cal. Rptr. 3d 395 (2016). See also, Heather Zachary and Allison
Trzop, Online Consumer Privacy: Airlines Under Scrutiny, (Jul. 29, 2014)
https://www.wilmerhale.com/en/insights/publications/online-consumer-privacy-airlines-under-scrutiny (last visited Mar. 23,
2021).
62
Va. Code Ann. § 59.1-573 (2020).
63
Va. Code Ann. § 59.1-571 (2020).
64
Va. Code Ann. § 59.1-572 A (2020).
BILL: CS/SB 1734 Page 13
public entities, nonprofit organizations, and higher education institutions.65 In a similar vein, the
Virginia Act exempts specific personal information, where the collection and use thereof is
otherwise regulated by FCRA, FERPA, and COPPA.66
The Virginia Attorney General has exclusive enforcement authority of the Virginia Act. 67
68
III. Effect of Proposed Changes:
CS/SB 1734 creates the Florida Privacy Protection Act to grant Florida’s consumers the ability to
share their personal information as they wish, in a way that is safe and that they understand and
control. The bill grants specific rights to consumers, and regulates businesses that collect,
process, or sell personal information about consumers.
65
Va. Code Ann. § 59.1-572 B (2020).
66
Va. Code Ann. § 59.1-572 C (2020).
67
See generally, Kurt Hunt and Matthew Diaz, JDSUPRA, Virginia Becomes 2nd State to Adopt a Comprehensive Consumer
Data Privacy Law (Mar. 8, 2021), https://www.natlawreview.com/article/virginia-becomes-2nd-state-to-adopt-
comprehensive-consumer-data-privacy-law (last visited Mar. 23, 2021).
68
Briana Falcon and Devika Kornbacher, JDSUPRA, Virginia is for Lovers…of Data Privacy (Feb. 15, 2021),
https://www.jdsupra.com/legalnews/virginia-is-for-lovers-of-data-privacy-3879845/ (last visited Mar. 23, 2021).
BILL: CS/SB 1734 Page 14
Personal Information
The bill defines personal information as information that identifies, relates to, describes, is
reasonably capable of being associated with, or could reasonably be linked, directly or indirectly,
with a particular consumer or household, such as a consumer’s:
First and last name;
Home or other physical address that includes the name of a street and city or town;
E-mail address or phone number;
Social security number;
Identifier, such as an alias, unique personal identifier, online identifier, Internet protocol (IP)
address, account name, driver license number, passport number, or similar identifier;
Biometric information,69 such as DNA or fingerprints or any other biometric information that
a business collects about the consumer without his or her knowledge;
Internet or other electronic network activity information, including but not limited to,
browsing and search history, and information regarding a consumer’s interaction with a
website, application, or advertisement;
Audio, electronic, visual, thermal, olfactory, geolocation, or similar information;
Professional or employment-related information;
Education information, defined as only information that is not publicly available;
Information that may serve as a probabilistic identifier70 concerning him or her which is
collected from the consumer through a website, online service, or some other means by the
business and is maintained by the business in combination with an identifier that, when used
with the information, identifies the consumer;
Characteristics of protected classifications under state or federal law;
Commercial information, including records of personal property, purchased or considered
products or services, or other purchasing and shopping habits; and
Geolocation data.
The bill further defines personal information as any inferences drawn from the above
information regarding the consumer that can be compiled to create a consumer profile that
reflects his or her preferences, characteristics, psychological trends, predispositions, behavior,
attitudes, intelligence, abilities, and aptitudes. This list is not exhaustive of information that may
constitute personal information.
However, the bill specifies that the definition of personal information does not include:
Information obtained from public records, including information that is lawfully made
available from federal, state, or local governmental records;
69
The bill defines “biometric information” as “an individual’s physiological, biological, or behavioral characteristics,
including an individual’s deoxyribonucleic acid (DNA), which can be used, singly or in combination with each other or with
other identifying data, to establish individual identity. The term includes, but is not limited to, imagery of the iris, retina,
fingerprint, face, hand, or palm; vein patterns; voice recordings from which an identifier template, such as a faceprint, a
minutiae template, or a voice print, can be extracted; keystroke patterns or rhythms; gait patterns or rhythms; and sleep,
health, or exercise data that contain identifying information.”
70
The bill defines a “probabilistic identifier” as the identification of a consumer or a device to a degree of certainty … based
on categories of personal information included in or similar to a person’s personal information.
BILL: CS/SB 1734 Page 15
Information that was made available to the general public by either the consumer or widely
distributed media and that the collecting business has a reasonable basis to believe is lawfully
available;
Information that is truthful and that is a matter of public concern; and
De-identified consumer information or aggregate consumer information that relates to a
group or category of consumers from which individual consumer identities have been
removed.
Information is de-identified if it:
Cannot reasonably identify, relate to, describe, or be associated with or linked to a particular
consumer or device;
Contains data that the business has taken reasonable measures to ensure cannot be
reidentified;
Contains data that the business publicly commits to maintain and use in a de-identified
fashion and that it will not attempt to reidentify; and
Contains data that the business contractually prohibits downstream recipients from
attempting to reidentify.
Aggregate consumer information, like de-identified information, has had individual consumer
identities removed from it and cannot be linked to any consumer or household—but it relates to a
group or category of consumers as a whole, rather than to a particular consumer.
Consumer Rights
The bill defines a consumer as a person who is in Florida for a purpose that is not temporary or
transitory. The term specifically excludes nonresidents. A person can be an individual, business,
or other organization or group of persons who act in concert. The bill vests consumers with
specific rights regarding their personal information in interactions with businesses that collect
and sell consumer personal information.
Minor’s Right to Opt-In to the Sale of Personal Information
The bill prohibits a business from selling a consumer’s information if he or she is younger than
13 years old, unless the business has affirmative authorization to do so from the child’s parent or
guardian. Similarly, a business may not collect the personal information of an individual who is
between the ages of 13 and 16 unless he or she has affirmatively opts-in. This “opt-in” right does
not prevent businesses from collecting the individual personal information of consumers under
the age of 16.
A business is deemed to have actual knowledge of its consumers’ ages if it willfully disregards
such information, and therefore is subject to penalty under the bill if it fails to institute some
method to determine its consumers’ ages. However, what specifically constitutes “willful
disregard” of this information will likely need to be determined by a trier of fact.
Right to Opt Out of the Sale of Personal Information
The bill creates a “right to opt out of the sale,” which allows a consumer who is 16 years old, or
older to instruct a business that sells personal information not to sell his or her personal
BILL: CS/SB 1734 Page 16
information. The business may not require a consumer to create an account to submit his or her
opt out request. As discussed below,71 “sale” is defined expansively by the bill to include any
transfer or communication of consumer personal data to advance a business’ economic interests.
The business must stop selling the consumer’s personal information as soon as reasonably
possible, but within no more than 2 days after it receives an opt-out request.
A consumer’s opt-out request may also be made by an authorized third-party or through a user-
enabled global privacy control, e.g., a browser plug-in or privacy setting. A business cannot
require a consumer to make a verified request to submit his or her request to opt out.
Targeted Advertisements and Profiling
The right to opt-out includes a right to opt-out of the processing of one’s data for the purposes of
profiling and targeted advertising.
Profiling is defined as the automated processing that a business performs on a consumer’s
personal data that will evaluate or predict things about the consumer’s economic situation,
health, personal preferences, interests, reliability, behavior, location, or movements.
Targeted advertising is distinct from profiling in result—that it ultimately leads to the display of
an advertisement to the consumer based on the profiling of his or her personal data obtained from
a broad array of the consumer’s activities, including activity on other business’ websites or
applications. As defined by the bill, targeted advertising does not include nonpersonalized
advertising that is based only on the consumer’s personal information derived from the
consumer’s current interaction with the business—excluding the consumer’s precise geolocation.
A consumer may trigger this specific portion of the right to opt-out at any time, but it is unclear
whether he or she must also execute the broader opt-out right to enable the targeted
advertisement and profiling opt-out.
A business can offer additional benefits to consumers who participate in targeted advertisements
or profiling processes. For example, a business can offer a consumer who participates in targeted
advertisements, loyalty programs or related enticements free goods or services, and goods or
services at a different price, rate, level, quality, or selection than that offered to consumers who
opt out. However, the discount or promotional item must be reasonably related to the value the
consumer’s data provides to the business and must not be unjust, unreasonable, coercive, or
usurious.
Duration of opt out
Once a consumer opts out, the business must comply without requiring any additional consumer
action if it can identify the consumer through a login protocol or similar process, or if the
business is made aware of the consumer’s continued opt-out preference by a user-enabled global
privacy control, such as a browser plug-in or privacy setting.
71
See infra, Notice Requirements: Notice of Sale of Personal Information.
BILL: CS/SB 1734 Page 17
The bill states elsewhere that a business that received an opt-out request is prohibited from
selling the consumer’s personal information until it receives the consumer’s subsequent express
authorization. Additionally, section 501.175(5)(d) of the bill permits a business to request a
consumer to re-authorize his or her opt-out after 12 months have passed from initial receipt of
the consumer’s preference. The bill therefore appears to provide inconsistent guidance regarding
re-authorization of a consumer’s opt out request.
Right to Know, Edit, or Delete Specific Collected Public Information
The bill grants consumers several additional rights that revolve around the need to first know
what a covered business actually holds about the consumer. These rights are the right to know
the details of one’s personal information held by a business, the right to correct that personal
information, and the right to have it deleted. A consumer must submit a verified request to
exercise these rights.
Verified Requests
A consumer must make a verified request to exercise his or her rights to know, delete, or correct
their collected personal information. An opt-out or opt-in request is not required to be made by
verified request.
A “verified request” is defined as a request that is submitted to a business by one of the
following:
A consumer;
A consumer on behalf of his or her minor child; or
A natural person or a person registered with the Secretary of State who is authorized by the
consumer to act on his or her behalf.
The business must be able to reasonably verify that the request is authentic.
Businesses must establish a designated request address to which consumers may submit their
verified request; the address may be either an e-mail address, toll-free phone number, or website.
It appears that businesses may receive verified requests in other manners, as a verified request is
not defined as one submitted to a business’ designated request address.
The covered business is required to respond to the consumer’s verified request to access, correct,
or delete personal information within 30 days of its submission. The business may take an
additional 30 days (total of 60 days) to respond if it makes a good faith determination that it is
reasonably necessary to do so. Any business that extends its response beyond the initial 30-day
timeframe must notify the requesting consumer of the extension.
If the business deems the consumer request manifestly unfounded or excessive—especially
where the consumer’s request is overly repetitive, the business may either refuse to comply or
charge a reasonable fee for the services requested. The fee must take into account administrative
cost of the work required to respond. If a business refuses to respond, it must notify the
consumer of the underlying reason. It is the business’ burden to demonstrate that the consumer’s
verified request was unfounded or burdensome.
BILL: CS/SB 1734 Page 18
Right to an Accounting of One’s Personal Information Held by a Covered Business
A consumer has the right to request an accounting of certain information from a covered
business.72 This information includes:
The sources from which the business collected the consumer’s personal information;
The specific items of personal information the business collected about the consumer;
The third parties to whom the business sold the personal information.
However, the corresponding business obligation appears only to require that the business provide
“any personal information about the consumer which it has collected, directly or indirectly…”.
Another portion of the bill requires the business to comply with a consumer’s request to “access”
personal information.
A separate section of the bill obligates businesses that control the collection of a consumer’s
personal information that will be used for any purpose other than a business purpose to inform
consumers of the purposes for which it collects or uses personal information, as applicable to
each category of personal information it collects or uses. These specific businesses must also
inform its consumers whether it will sell their personal information. This requirement applies to
the general public and does not require specific or personal information to be provided to
individuals.
It is therefore unclear whether a consumer’s right to request the sources from which his or her
personal information was collected and the third parties to which it was sold actually translates to
a right to receive such information from a covered business.
A service provider is not required to personally comply with a verified request. It is obligated to
provide any personal information it obtained as a result of its performance under a contract with
a business to said business in order to help the business respond to a verified request for
information.
Because the law cannot be applied retroactively, a business is required to disclose only the
information it collected about a consumer since July 1, 2022.
Right to Delete Personal Information
A consumer may submit a verified request that a covered business that sells his or her
information delete it. After the business receives such a request, it must delete the information,
and instruct any third party that bought or received the consumer’s personal information to delete
the information.
A business and service provider are not required to delete a consumer’s personal information
pursuant to his or her request where it is necessary to maintain to:
72
It is unclear to what businesses consumers have the right to submit this request. The right is created in a subsection that
obligates “businesses required to comply with this section.” However, there is no general statement of required compliance
within the section. Other subsections within the section apply to businesses that sell consumer information, so this right may
also only apply to businesses that sell a consumer’s information.
BILL: CS/SB 1734 Page 19
Complete the transaction, provide the good or service, or perform a contract, for which the
personal information was collected;
Fulfill the terms of a written warranty or product recall that is conducted in accordance with
federal law;
Ensure the security and integrity of the business, the personal information it holds, or the
safety of a natural person;
Debug and identify repair errors;
Exercise free speech or another right provided for by law;
Engage in public or peer-reviewed scientific, historical, or statistical research that is
performed in accordance with applicable ethical standards and privacy laws—only when the
deletion of the consumer’s personal information would render such research impossible or
seriously impaired and where the consumer previously provided informed consent; and
Comply with a legal obligation.
Where a business has already de-identified the personal information, it cannot be required to
reidentify it to accommodate a request to delete personal information.
Right to Correct Inaccurate Personal Information
A consumer may submit a verified request that a covered business correct incorrect personal
information it holds about him or her. A business and any service provider must correct the
incorrect information.
Business Requirements
Covered Businesses
The bill defines a business subject to the Act (covered business) as a sole proprietorship,
partnership, limited liability company, corporation, association, or any other legal entity that:
Is organized or operated for the profit or financial benefit of its shareholders or owners;
Does business in Florida;
Collects personal information about consumers, or is the entity on behalf of which such
information is collected;
Determines the purpose and means of processing personal information about consumers,
alone or jointly with others; and
Satisfies at least one of the following thresholds:
o Has a global annual gross revenue in excess of $25 million, as adjusted in January of
every odd-numbered year to reflect an increase in the consumer price index;
o Annually buys, receives for the business’ commercial purposes, sells, or shares for
commercial purposes, the personal information of 50,000 or more consumers,
households, or devices; or
o Derives 50 percent or more of its global annual revenues from selling or sharing personal
information about consumers.
BILL: CS/SB 1734 Page 20
The bill further includes within the definition of a covered business (1) the franchisees or
franchisors73 of a business that meets the above qualifications, and (2) all of the entities involved
in a joint venture or partnership, if the business has at least a 40 percent interest therein. To
prevent the improper sharing of personal information between businesses, the bill prohibits each
business within the joint venture or partnership from sharing a consumer’s personal information
with its partner business using the common entity (joint venture or partnership) as a pass
through. The businesses are permitted to share a consumer’s personal information with the joint
venture or partnership, however.
The bill specifically excludes from the definition of a joint venture any third party that operates,
hosts, or manages a website or an online service on behalf of a business or processes information
on behalf of a business.
Service Providers
A service provider is a person in an express contractual relationship with a business for which it
processes personal information that it receives from the business. The contract between the
parties must prohibit the service provider from:
Selling the information;
Retaining, using or disclosing the personal information it receives from the business for any
reason other than that specified in the contract;
Combining personal information it receives from or on behalf of the business with any other
business, or that it collects on its own; and
Retaining, using, or disclosing personal information outside of the direct business
relationship created by the contract.
A business that collects and sells consumer personal information may disclose consumer
personal information to a service provider without notice to or consent from the consumer.
However, this disclosure must be made pursuant to a contract between the disclosing business
and the service provider that prohibits the sale, retention, use, or disclosure of the personal
information for any purpose other than the service specified in the contract. The contract must
also require that the service provider does not combine a consumer’s personal information it
receives from multiple businesses or from its own interactions with the consumer.
If a service provider discloses personal information in violation of such a contract, the business
generally cannot be found liable. Conversely, a service provider is not liable for duties and
obligations assigned to a business under the Act.
Third Parties
A third party is any person who is neither a business that collects person information from a
consumer during an intentional interaction with him or her, nor the business’ service provider.
73
A franchisee or franchisor is “an entity that controls or is controlled by a business and that shares common branding with
the business.” Control, for purposes in the bill, means the ownership of, or power to vote, more than 50 percent of the
outstanding shares of any class of voting security of a business or the control in any manner over the election of a majority of
the directors or individuals who exercise similar functions, or the power to exercise a controlling influence over the
management of a company.
BILL: CS/SB 1734 Page 21
A business may sell collected personal information to a third party, but similar to a business’
disclosure to a service provider; this sale must be based on a contract that expressly obligates the
third party to comply with applicable provisions of the Act—especially regarding the provision
of privacy protection.
A service provider may also engage a third party to assist with its performance under a contract
for processing personal information, but it must also create a contract with the third party, which
shows the third party’s understanding and ability to comply with the privacy and security
obligations of the Act.
General Business Obligations
Generally, a business may use consumer personal information for a business purpose, which is
the business’ or service providers’ operational purposes. The term “business purpose” may also
encompass any reason for which a business gives proper consumer notice (however, service
providers are not granted this leeway). The bill provides a non-exhaustive list of permitted
business purposes, which includes:
Auditing related to determining the effectiveness of an advertisement;
Ensuring the security and integrity of a network or information system, confidentiality of
personal information, and physical safety of natural persons;
Debugging to identify and repair errors that impair functionality;
Short-term, transient use such as for nonpersonalized advertising –if it does not involve
disclosure of personal information or profiling of the consumer;
Performing services on behalf of the business such as fulfilling orders, processing payments,
providing financing, and providing customer service;
Providing advertising and marketing services that exclude targeted advertising, with specific
limits on the combination of personal information;
Undertaking internal research for technological development and demonstration; and
Undertaking activities to verify or maintain the quality or safety of a service or device, and to
provide upgrades for any such service or device.
Any business’ collection, use, retention, and sharing of personal information must be reasonably
necessary to achieve, and proportionate to the benefit of achieving, the business purpose.
Notice of Collection of Personal Information
Covered businesses that collect or control the collection of consumer personal information must
make the following information reasonably accessible to those consumers from whom they
collect personal information through their website or online service:
The categories of personal information that they collect through their websites or online
services, and the categories of third parties with whom they share this information;
The process, if applicable, through which a consumer may review and request changes to the
personal information collected about him or her through the website or online service;
Whether the business allows a third party to collect the consumer’s personal information
mined from their online activities over time and across different websites or online services
when the consumer uses the business’ website or online service; and
BILL: CS/SB 1734 Page 22
The notice’s effective date and how the business will notify a consumer of material changes
to the notice.
This notice must be “reasonably accessible.” It does not appear that this requires a business to
post the notice online.
A similar notice is required for a business that controls the collection of consumer personal
information that will be used for a non-business purpose, which must inform its consumers of
each category of personal information it collects or uses and why it collects or uses that
information. The business cannot collect or use types of personal information outside of this
notice without first updating the notice to reflect a new category and purpose.
Notice of Retention of Personal Information
Covered businesses are not required to retain consumer personal information, but if they do, they
must do so only for as long as is reasonably necessary to effectuate the purpose for which they
collected it. However, a covered business can retain de-identified or aggregate consumer
information for any amount of time.
A business that collects a consumer’s information for a non-business purpose must inform the
consumer from whom it collects that it will retain his or her information. This notification must
include the length of time the business expects to retain the information; if the business does not
know the duration—it must provide the criteria it will use to determine it.
Notice of Consumer Rights
As discussed above, the bill grants consumers specific rights regarding their personal
information. A business that sells a consumer’s information must post a notice to consumers that
(1) their information may be sold, and (2) they have the right to opt out of such a sale. This
notice requirement may not apply to all covered businesses, as the sale of personal information is
required to trigger this notice requirement. Additionally, it is unclear what method of notice is
required.
Additionally, specific businesses74 must post a clear and conspicuous link with the specific title
“Do Not Sell My Personal Information” on their homepages to enable the consumer or an
authorized actor to opt out of the sale of the consumer’s personal information. Alternately, a
covered business may maintain a separate and additional home page that is dedicated to
providing Florida consumers with the required privacy information, if it takes reasonable steps to
direct Florida consumers to that specialized webpage.
Employee Education
The bill requires covered business to educate their employees who handle consumer inquiries
about the business’ privacy practices and compliance about the bill’s requirements and how to
counsel consumers to exercise their rights granted under the bill.
74
This requirement applies to “a business that is required to comply with this section.” There is no explicit statement of what
types of businesses must comply with s. 501.175, “Use of personal information; third parties; other rights” within the bill.
BILL: CS/SB 1734 Page 23
Data Security
A business that collects a consumer’s personal information must implement reasonable security
procedures and practices to protect the information from unauthorized or illegal access,
destruction, use, modification, or disclosure. This will apply to a large portion of businesses
subject to the bill, as even those that keep collected personal information entirely within their
business will be required to implement security protections to comply with this provision.
Exclusions
Section 6 of the bill provides specific exclusions or exemptions from the bill.
The bill does not govern the sale, use, retention, or disclosure of de-identified personal
information or aggregate consumer information from which individual consumer identities have
been removed. Additionally, it permits the sale of personal information if every aspect of that
conduct takes place outside of Florida; the consumer’s information must have been collected
while he or she was not in Florida, and no part of the resulting sale may have occurred in Florida.
The bill expressly allows covered business to do the following:
Comply with federal, state, or local laws;
Comply with civil, criminal, or regulatory inquiry or an investigation, a subpoena, or a
federal, state, or local summons;
Cooperate with law enforcement agencies concerning conduct or activity that the business,
service provider, or third party reasonably and in good faith believes may violate federal,
state, or local law; and
Exercise or defend legal claims.
The bill also states that those rights afforded and obligations imposed may not adversely affect
the rights and freedoms of other consumers.
The bill provides express exemptions for the following types of information:
Personal information collected or disclosed by a business in the scope of its role as an
employer regarding its employees, applicants, interns, or volunteers;
Health information collected by a covered entity or its businesses associate as governed by
HIPPA and its associated rules;
Information collected as part of a clinical trial that is subject to the Federal Policy for the
Protection of Human Subjects pursuant to specific industry guidelines;
Personal information that is sold to or by a consumer reporting agency, for use in or to
generate a consumer report and limited by the Fair Credit Reporting Act;
Personal information collected, processed, sold, or disclosed pursuant to GLBA and its
implementing regulations;
Personal information collected, processed, sold, or disclosed pursuant to DPPP;
Education information covered by FERPA;
Personal information that is collected, processed, sold, or disclosed relating to the price,
route, or service by entities that are subject to the federal Airline Deregulation Act, and only
to the extent that this Act is preempted by s. 41713 of the federal Airline Deregulation Act;
and
BILL: CS/SB 1734 Page 24
Vehicle Information or ownership information that is retained by or shared between a new
motor vehicle dealer and the vehicle’s manufacture, if done so to effectuate a warrantied
vehicle repair or recall.
Enforcement
Section 7 grants affected consumers a private right of action against a business for its violation
of the Act. Specifically, a consumer may bring a civil action for recovery of:
Damages of between $100-$749 per consumer, per incident or actual damages—whichever is
greater;
Injunctive or declaratory relief;
Reasonable costs of enforcement, including a reasonable attorney fee; and
Any other relief a court deems proper.
The bill separately grants the Department of Legal Affairs authority to bring an action against a
business it has reason to believe is violating or has violated the Act. The trial court may issue a
temporary or permanent injunction, impose a civil penalty of $5,000 or less per violation (this
may be tripled if the consumer was under 16 years of age at the time of the violation), award
reasonable enforcement costs—including a reasonable attorney fee, and grant any other relief it
deems appropriate.
The bill grants the Department of Legal Affairs rulemaking authority to enforce the Act.
Effective Date
Section 8 of the bill provides that the Act will take effect on January 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
Any public records or open meetings issues are addressed in SB 7064 (2021 Regular
Session).
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
BILL: CS/SB 1734 Page 25
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
This will likely have wide-ranging impact on how Florida consumers interact with
websites and internet-connected devices.
Businesses will have to adjust their operations to implement the bill’s notice and privacy
requirements. Many of the businesses subject to the bill’s requirements may have already
implemented similar privacy practices based on legislation in California, Illinois, and the
E.U.
C. Government Sector Impact:
The DLA will likely see an increase in prosecutions and other regulatory activity relating
to the Act. Additionally, the Judiciary may see an increase in caseload as a result of
private actions filed under the Act.
VI. Technical Deficiencies:
The bill requires service providers that disclose personal information with a third party in
furtherance of their contractual duties to do so pursuant to a contract that outlines the third
party’s duty to maintain the security of the shared personal information. The bill describes this
duty as “that described in s. 501.174(23),” but this section does not include a duty—it only
defines “security and integrity.” This provision may be more clear if it replaces the reference to
s. 501.174(23) with a reference to s. 501.1745(3), F.S., which requires businesses that collect
consumer personal information to implement reasonable security procedures and practices.
Section 501.175, as created by the bill, generally creates business duties to notify consumers of
rights regarding their personal information. Most subsections of the bill apply to “a business that
sells consumers’ personal information,” but subsection (5) refers to “a business that is required to
comply with this section.” There is no general statement of applicability within s. 501.175, and
therefore it may be unclear to which businesses these duties created by s. 501.175(5), F.S., apply.
The committee substitute adds geolocation data as information that is considered personal
information. This is repetitive, as personal information was already defined to include “audio,
electronic, visual, thermal, olfactory, geolocation, or similar information.”
BILL: CS/SB 1734 Page 26
VII. Related Issues:
The bill grants the DLA rulemaking authority to enforce the Act and otherwise permits it to
institute appropriate legal proceedings where it believes necessary. However, the DLA may
require investigative authority. For example, s. 501.206, F.S., grants the DLA authority to
administer oaths and affirmations, subpoena witnesses or matter, and collect evidence in
furtherance of its enforcement authority under the Florida Deceptive and Unfair Trade Practices
Act.
The bill appears to provide inconsistent guidance regarding re-authorization of the consumer’s
opt out request. For example, the bill states that once a consumer opts out, the business must
comply without requiring any additional consumer action if it can identify the consumer through
a login protocol or a user-enabled global privacy control. The bill states elsewhere that a business
that received an opt-out request cannot sell the consumer’s personal information until it receives
the consumer’s subsequent express authorization. Section 501.175(5)(d) of the bill also permits a
business to request a consumer to re-authorize his or her opt-out after 12 months have passed
from initial receipt of the consumer’s preference.
VIII. Statutes Affected:
This bill creates the following sections of the Florida Statutes: 501.172, 501.173, 501.174,
501.175, 501.176, 501.177.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Commerce and Tourism on March 22, 2021:
Re-defines the term “consumer” so that an individual is no longer required to seek or
acquire a good or service from a business to accrue the rights granted by the bill;
Clarifies that information a consumer shares with the public, or truthful information
that concerns a public matter, is not personal information regulated by the bill;
Broadens the definition of a “business purpose” to include any reason for which a
business gives proper notice to its consumers, thereby creating a more a flexible
business purpose;
Instills a corresponding business duty to provide an accounting of personal
information it collects about an individual consumer upon his or her request;
Clarifies that a business is required to provide requesting consumers an accounting of
the personal information the business collected on or after July 1, 2022.
Implements a requirement that covered businesses inform consumers of the duration
they intend to retain personal information, and require that the retention be for no
longer than reasonably necessary to accomplish the business purpose for which it was
collected;
Requires a covered business to comply with a consumer’s opt-out request within 2
days, versus 15;
BILL: CS/SB 1734 Page 27
Requires a covered business to implement data security measures to protect consumer
personal information;
Excludes specific information from the act, including information subject to
enumerated federal privacy regulations, information collected or disclosed by an
employer about its employees in the regular scope of its duties, and information held
or shared by a car dealer and manufacturer for car repairs, recalls, and maintenance;
and
Delays the effective date to January 1, 2022.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
03/23/2021 .
.
.
.
The Committee on Commerce and Tourism (Bradley) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Section 501.172, Florida Statutes, is created to
6 read:
7 501.172 Short title.—This act may be cited as the “Florida
8 Privacy Protection Act.”
9 Section 2. Section 501.173, Florida Statutes, is created to
10 read:
Page 1 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
11 501.173 Purpose.—This act shall be construed liberally in
12 recognition that privacy is an important right, and consumers in
13 this state should have the ability to share their personal
14 information as they wish, in a way that is safe and that they
15 understand and control.
16 Section 3. Section 501.174, Florida Statutes, is created to
17 read:
18 501.174 Definitions.—As used in ss. 501.172-501.177, unless
19 the context otherwise requires, the term:
20 (1) “Advertising and marketing” means a communication by a
21 business or a person acting on behalf of the business through
22 any medium intended to induce a consumer to obtain goods,
23 services, or employment.
24 (2) “Aggregate consumer information” means information that
25 relates to a group or category of consumers, from which
26 individual consumer identities have been removed, which is not
27 linked or reasonably linkable to any consumer or household,
28 including through a device. The term does not include one or
29 more individual consumer records that have been de-identified.
30 (3) “Biometric information” means an individual’s
31 physiological, biological, or behavioral characteristics,
32 including an individual’s deoxyribonucleic acid (DNA), which can
33 be used, singly or in combination with each other or with other
34 identifying data, to establish individual identity. The term
35 includes, but is not limited to, imagery of the iris, retina,
36 fingerprint, face, hand, or palm; vein patterns; voice
37 recordings from which an identifier template, such as a
38 faceprint, a minutiae template, or a voice print, can be
39 extracted; keystroke patterns or rhythms; gait patterns or
Page 2 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
40 rhythms; and sleep, health, or exercise data that contain
41 identifying information.
42 (4) “Business” means:
43 (a) A sole proprietorship, a partnership, a limited
44 liability company, a corporation, or an association or any other
45 legal entity that meets the following requirements:
46 1. Is organized or operated for the profit or financial
47 benefit of its shareholders or owners;
48 2. Does business in this state;
49 3. Collects personal information about consumers, or is the
50 entity on behalf of which such information is collected;
51 4. Determines the purposes and means of processing personal
52 information about consumers, alone or jointly with others; and
53 5. Satisfies at least one of the following thresholds:
54 a. Has global annual gross revenues in excess of $25
55 million, as adjusted in January of every odd-numbered year to
56 reflect any increase in the Consumer Price Index.
57 b. Annually buys, sells, or shares the personal information
58 of 50,000 or more consumers, households, or devices.
59 c. Derives 50 percent or more of its global annual revenues
60 from selling or sharing personal information about consumers.
61 (b) An entity that controls or is controlled by a business
62 and that shares common branding with the business. As used in
63 this paragraph, the term:
64 1. “Common branding” means a shared name, service mark, or
65 trademark that the average consumer would understand to mean
66 that two or more entities are commonly owned.
67 2. “Control” means:
68 a. Ownership of, or the power to vote, more than 50 percent
Page 3 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
69 of the outstanding shares of any class of voting security of a
70 business;
71 b. Control in any manner over the election of a majority of
72 the directors, or of individuals exercising similar functions;
73 or
74 c. The power to exercise a controlling influence over the
75 management of a company.
76 (c) A joint venture or partnership composed of businesses
77 in which each business has at least a 40 percent interest. For
78 the purposes of this act, the joint venture or partnership, and
79 each business that comprises the joint venture or partnership,
80 must be considered a separate, single business, except that
81 personal information in the possession of each business and
82 disclosed to the joint venture or partnership may not be shared
83 with the other business. A joint venture does not include a
84 third party that operates, hosts, or manages a website or an
85 online service on behalf of a business or processes information
86 on behalf of a business.
87 (5) “Business purpose” means the use of personal
88 information for the business’ operational or other notice-given
89 purposes or for the service provider’s operational purposes,
90 provided that the use of the personal information is reasonably
91 necessary to achieve, and proportionate to the benefit of
92 achieving, the purpose for which the personal information was
93 collected or processed or for another purpose that is compatible
94 with the context in which the personal information was
95 collected. The term includes all of the following:
96 (a) Auditing related to counting ad impressions of unique
97 visitors and verifying positioning and the quality of ad
Page 4 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
98 impressions, and auditing compliance with this specification and
99 other standards.
100 (b) Helping to ensure security and integrity to the extent
101 that the use of the consumer’s personal information is
102 reasonably necessary for these purposes and proportionate to the
103 benefit of its use for these purposes.
104 (c) Debugging to identify and repair errors that impair
105 existing intended functionality.
106 (d) Short-term, transient use, including, but not limited
107 to, nonpersonalized advertising shown as part of a consumer’s
108 current interaction with the business, provided that the
109 consumer’s personal information is not disclosed to a third
110 party and is not used to build a profile of the consumer or to
111 otherwise alter the consumer’s experience outside his or her
112 current interaction with the business.
113 (e) Performing services on behalf of the business,
114 including maintaining or servicing accounts, providing customer
115 service, processing or fulfilling orders and transactions,
116 verifying customer information, processing payments, or
117 providing financing, analytic services, storage, or similar
118 services on behalf of the business.
119 (f) Providing advertising and marketing services, not
120 including targeted advertising, to the consumer provided that,
121 for the purpose of advertising and marketing, a service provider
122 may not combine the personal information of consumers who opt
123 out which the service provider receives from, or on behalf of,
124 the business with personal information that the service provider
125 receives from, or on behalf of, another person or persons or
126 collects from its own interaction with consumers.
Page 5 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
127 (g) Undertaking internal research for technological
128 development and demonstration.
129 (h) Undertaking activities to verify or maintain the
130 quality or safety of a service or device that is owned,
131 manufactured, manufactured for, or controlled by the business,
132 and to improve, upgrade, or enhance the service or device that
133 is owned, manufactured, manufactured for, or controlled by the
134 business.
135 (6) “Categories” or “category” means the items of personal
136 identifying information specified as being included as personal
137 information under subsection (18).
138 (7) “Collects,” “collected,” or “collection” means buying,
139 renting, gathering, obtaining, receiving, or accessing by any
140 means any personal information pertaining to a consumer. The
141 term includes receiving information from the consumer, either
142 actively or passively, or by observing the consumer’s behavior.
143 (8) “Commercial purposes” means to advance a person’s
144 commercial or economic interests, such as by inducing another
145 person to buy, rent, lease, join, subscribe to, provide, or
146 exchange products, goods, property, information, or services or
147 enabling or effecting, directly or indirectly, a commercial
148 transaction. The term does not include engaging in speech that
149 state or federal courts have recognized as noncommercial speech,
150 including political speech and journalism.
151 (9) “Consumer” means a natural person, however identified,
152 including identification by a unique identifier, who is in this
153 state for other than a temporary or transitory purpose. The term
154 does not include any other natural person who is a nonresident.
155 (10) “De-identified” means information:
Page 6 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
156 (a) That cannot reasonably identify, relate to, describe,
157 be associated with, or be linked directly or indirectly to a
158 particular consumer or device;
159 (b) Containing data that the business has taken reasonable
160 measures to ensure could not be reidentified;
161 (c) Containing data that the business publicly commits to
162 maintain and use in a de-identified fashion and that it does not
163 attempt to reidentify; and
164 (d) Containing data that the business contractually
165 prohibits downstream recipients from attempting to reidentify.
166 (11) “Designated request address” means an electronic mail
167 address, a toll-free telephone number, or a website established
168 by a business through which a consumer may submit a verified
169 request to the business.
170 (12)“Device” means a physical object capable of directly or
171 indirectly connecting to the Internet.
172 (13) “Home page” means the introductory page of an Internet
173 website and any Internet web page where personal information is
174 collected. In the case of an online service, such as a mobile
175 application, the term means the application’s platform page or
176 download page; a link within the application, such as from the
177 application configuration, “about,” “information,” or settings
178 page; and any other location that allows consumers to review the
179 notices required by this act, at any time, including, but not
180 limited to, before downloading the application.
181 (14) “Household” means a person or group of persons living
182 together or sharing living quarters who are or are not related.
183 (15) “Intentional interaction” or “intentionally
184 interacting” means the consumer intends to interact with or
Page 7 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
185 disclose personal information to a person through one or more
186 deliberate interactions, including visiting the person’s website
187 or purchasing a good or service from the person. The term does
188 not include hovering over, muting, pausing, or closing a given
189 piece of content.
190 (16) “Nonpersonalized advertising” means advertising and
191 marketing that is based solely on a consumer’s personal
192 information derived from the consumer’s current interaction with
193 the business, with the exception of the consumer’s precise
194 geolocation.
195 (17) “Person” means an individual, a proprietorship, a
196 firm, a partnership, a joint venture, a syndicate, a business
197 trust, a company, a corporation, a limited liability company, an
198 association, a committee, and any other organization or group of
199 persons acting in concert.
200 (18) “Personal information” means information that
201 identifies, relates to, describes, is reasonably capable of
202 being associated with, or could reasonably be linked, directly
203 or indirectly, with a particular consumer or household.
204 (a) The term includes, but is not limited to, all of the
205 following items of personal identifying information about a
206 consumer collected and maintained by a person or business:
207 1. A first and last name.
208 2. A home or other physical address that includes the name
209 of a street and the name of a city or town.
210 3. An electronic mail address.
211 4. A telephone number.
212 5. A social security number.
213 6. An identifier such as an alias, a unique personal
Page 8 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
214 identifier, an online identifier, an Internet protocol address,
215 an account name, a driver license number, a passport number, or
216 other similar identifiers.
217 7. Biometric information, such as DNA or fingerprints or
218 any other biometric information collected by a business about a
219 consumer without the consumer’s knowledge.
220 8. Internet or other electronic network activity
221 information, including, but not limited to, browsing history,
222 search history, and information regarding a consumer’s
223 interaction with a website, an application, or an advertisement.
224 9. Audio, electronic, visual, thermal, olfactory,
225 geolocation, or similar information.
226 10. Professional or employment-related information.
227 11. Education information, defined as only information that
228 is not publicly available.
229 12. Inferences drawn from any information specified in this
230 paragraph which can create a profile about a consumer reflecting
231 the consumer’s preferences, characteristics, psychological
232 trends, predispositions, behavior, attitudes, intelligence,
233 abilities, and aptitudes.
234 13. Any other information that may serve as a probabilistic
235 identifier concerning a consumer which is collected from the
236 consumer through a website, an online service, or some other
237 means by the business and maintained by the business in
238 combination with an identifier in a form that, when used
239 together with the information, identifies the consumer.
240 14. Characteristics of protected classifications under
241 state or federal law.
242 15. Commercial information, including records of personal
Page 9 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
243 property; products or services purchased, obtained, or
244 considered; or other purchasing or consuming histories or
245 tendencies.
246 16. Geolocation data.
247 (b) The term does not include:
248 1. Information about a consumer obtained from public
249 records, including information that is lawfully made available
250 from federal, state, or local governmental records; information
251 that a business has a reasonable basis to believe is lawfully
252 made available to the general public by the consumer or from
253 widely distributed media; or lawfully obtained, truthful
254 information that is a matter of public concern.
255 2. Consumer information that is de-identified or aggregate
256 consumer information that relates to a group or category of
257 consumers from which individual consumer identities have been
258 removed.
259 (19) “Probabilistic identifier” means the identification of
260 a consumer or a device to a degree of certainty more probable
261 than not, based on any categories of personal information
262 included in or similar to the items of personal identifying
263 information specified in subsection (18).
264 (20) “Processing” means any operation or set of operations
265 performed on personal information or on sets of personal
266 information, whether or not by automated means.
267 (21) “Profiling” means any form of automated processing
268 performed on personal data to evaluate, analyze, or predict
269 personal aspects related to an identified or identifiable
270 natural person’s economic situation, health, personal
271 preferences, interests, reliability, behavior, location, or
Page 10 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
272 movements.
273 (22)(a) “Sale” or “sell” means the sale, rental, release,
274 disclosure, dissemination, making available, loaning, sharing,
275 transferring, or other communication, orally, in writing, or by
276 electronic or other means, of a consumer’s personal information
277 by a business to a third party for monetary or other tangible or
278 intangible consideration or for any commercial purpose.
279 (b) The term does not include any of the following:
280 1. The disclosure, for a business purpose, of personal
281 information by a business to a service provider who processes
282 the personal information on behalf of the business.
283 2. The disclosure, for the purposes of providing a product
284 or service requested by the consumer, of personal information by
285 a business to another business resulting from the consumer’s
286 intentional interaction.
287 (23) “Security and integrity” means the ability of a:
288 (a) Network or information system to detect security
289 incidents that compromise the availability, authenticity,
290 integrity, and confidentiality of stored or transmitted personal
291 information.
292 (b) Business to detect security incidents; to resist
293 malicious, deceptive, fraudulent, or illegal actions; and to
294 help prosecute those responsible for such actions.
295 (c) Business to ensure the physical safety of natural
296 persons.
297 (24) “Service provider” means a person who processes
298 personal information on behalf of a business to whom the
299 business discloses a consumer’s personal information for a
300 business purpose pursuant to a written or electronic contract if
Page 11 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
301 the contract prohibits the person from:
302 (a) Selling the information;
303 (b) Retaining, using, or disclosing the personal
304 information for any purpose other than the business purposes
305 specified in the contract, including a prohibition on retaining,
306 using, or disclosing the personal information for a commercial
307 purpose other than the business purposes specified in the
308 contract with the business;
309 (c) Combining the personal information that the service
310 provider receives from or on behalf of the business with
311 personal information that the service provider receives from or
312 on behalf of another person or persons or collects from its own
313 interaction with consumers, provided that the service provider
314 may combine personal information to perform a business purpose;
315 and
316 (d) Retaining, using, or disclosing the information outside
317 of the direct business relationship between the service provider
318 and the business.
319 (25) “Targeted advertising” means displaying an
320 advertisement to a consumer when the advertisement is selected
321 based on personal data obtained from a consumer’s activities
322 over time and across businesses, websites, or online
323 applications other than the business, website, or online
324 application with which the consumer is intentionally
325 interacting, to predict such consumer’s preferences or
326 interests. The term does not include nonpersonalized
327 advertising.
328 (26) “Third party” means a person who is not any of the
329 following:
Page 12 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
330 (a) The business with which the consumer intentionally
331 interacts which collects personal information from the consumer
332 as part of the consumer’s current interaction with the business.
333 (b) A service provider to the business.
334 (27) “Unique identifier” or “unique personal identifier”
335 means a persistent identifier that can be used to recognize a
336 consumer, a family, or a device linked to a consumer or family
337 over time and across different services, including, but not
338 limited to, a device identifier; an Internet protocol address;
339 cookies, beacons, pixel tags, mobile ad identifiers, or similar
340 technology; a customer number, unique pseudonym, or user alias;
341 telephone numbers; or other forms of persistent or probabilistic
342 identifiers that can be used to identify a particular consumer
343 or device that is linked to a consumer or family. For purposes
344 of this subsection, the term “family” means a custodial parent
345 or guardian and any minor children of which the parent or
346 guardian has custody.
347 (28) “Verified request” means a request submitted by a
348 consumer, by a consumer on behalf of the consumer’s minor child,
349 or by a natural person or a person registered with the Secretary
350 of State, who is authorized by the consumer to act on the
351 consumer’s behalf, to a business for which the business can
352 reasonably verify the authenticity of the request.
353 Section 4. Section 501.1745, Florida Statutes, is created
354 to read:
355 501.1745 General duties of businesses that collect personal
356 information.—
357 (1) A business that controls the collection of a consumer’s
358 personal information that will be used for any purpose other
Page 13 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
359 than a business purpose, at or before the point of collection,
360 shall inform consumers of all of the following:
361 (a) The purposes for which each category of personal
362 information is collected or used and whether that information is
363 sold. A business may not collect additional categories of
364 personal information, or use collected personal information for
365 additional purposes that are incompatible with the disclosed
366 purpose for which the personal information was collected,
367 without providing the consumer with notice consistent with this
368 section.
369 (b) The length of time the business intends to retain each
370 category of personal information or, if that is not possible,
371 the criteria used to determine such period, provided that a
372 business may not retain a consumer’s personal information for
373 each disclosed purpose for which the personal information was
374 collected for longer than is reasonably necessary for that
375 disclosed purpose.
376 (2) A business’ collection, use, retention, and sharing of
377 a consumer’s personal information must be reasonably necessary
378 to achieve, and proportionate to the benefit of achieving, the
379 purposes for which the personal information was collected or
380 processed, and such information may not be further processed in
381 a manner that is incompatible with those purposes.
382 (3) A business that collects a consumer’s personal
383 information shall implement reasonable security procedures and
384 practices appropriate to the nature of the personal information
385 to protect the personal information from unauthorized or illegal
386 access, destruction, use, modification, or disclosure.
387 (4) A business that collects a consumer’s personal
Page 14 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
388 information and sells that personal information to a third party
389 or discloses it to a service provider for a business purpose
390 shall enter into an agreement with such third party or service
391 provider which obligates the third party or service provider to
392 comply with applicable obligations under this act and obligates
393 those persons to provide the same level of privacy protection as
394 is required by this act. If a service provider engages any other
395 person to assist it in processing personal information for a
396 business purpose on behalf of the business, or if any other
397 person engaged by the service provider engages another person to
398 assist in processing personal information for that business
399 purpose, the provider or person must notify the business of that
400 engagement, and the engagement must be pursuant to a written
401 contract that includes the prohibitions described in s.
402 501.174(23) and a certification made by the person receiving the
403 personal information that he or she understands the restrictions
404 under this act and will comply with them.
405 Section 5. Section 501.175, Florida Statutes, is created to
406 read:
407 501.175 Use of personal information; third parties; other
408 rights.—
409 (1)(a) A consumer has the right, at any time, to direct a
410 business that sells personal information about the consumer not
411 to sell the consumer’s personal information. This right may be
412 referred to as the right to opt out of the sale.
413 (b) As part of the right to opt out of the sale of his or
414 her personal information, a consumer has the right, at any time,
415 to opt out of the processing of the consumer’s personal data for
416 purposes of targeted advertising or profiling. However, this
Page 15 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
417 paragraph may not be construed to prohibit the business that
418 collected the consumer’s personal information from:
419 1. Offering a different price, rate, level, quality, or
420 selection of goods or services to a consumer, including offering
421 goods or services for no fee, if the consumer has opted out of
422 targeted advertising or the sale of his or her personal
423 information; or
424 2. Offering a loyalty, reward, premium feature, discount,
425 or club card program.
426 (c) A business that charges or offers a different price,
427 rate, level, quality, or selection of goods or services to a
428 consumer who has opted out of targeted advertising or the sale
429 of his or her personal information, or that offers goods or
430 services for no fee, shall ensure that such charge or offer is:
431 1. Reasonably related to the value provided to the business
432 by the consumer’s data; and
433 2. Not unjust, unreasonable, coercive, or usurious.
434 (2) A business that sells consumers’ personal information
435 shall provide notice to consumers that the information may be
436 sold and that consumers have the right to opt out of the sale of
437 their personal information.
438 (3) A business that sells consumer information and that has
439 received direction from a consumer not to sell the consumer’s
440 personal information or, in the case of a minor consumer’s
441 personal information, has not received consent to sell the minor
442 consumer’s personal information, is prohibited from selling the
443 consumer’s personal information after the business receives the
444 consumer’s direction, unless the consumer subsequently provides
445 express authorization for the sale of the consumer’s personal
Page 16 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
446 information. A business that is able to authenticate the
447 consumer, for example, by the consumer logging in, or that uses
448 some other unique identifier for the consumer, must comply with
449 any privacy preferences the consumer previously directed. The
450 business may not require the consumer to declare privacy
451 preferences every time the consumer visits the business’ website
452 or uses the business’ online services.
453 (4)(a) Notwithstanding subsection (1), a business may not
454 sell the personal information of consumers if the business has
455 actual knowledge that the consumer is younger than 16 years of
456 age, unless:
457 1. The consumer, in the case of consumers between 13 and 16
458 years of age, has affirmatively authorized the sale of the
459 consumer’s personal information; or
460 2. The consumer’s parent or guardian, in the case of
461 consumers who are younger than 13 years of age, has
462 affirmatively authorized the sale of the consumer’s personal
463 information.
464 (b) This right may be referred to as the right to opt in.
465 (c) A business that willfully disregards the consumer’s age
466 is deemed to have actual knowledge of the consumer’s age.
467 (5) A business that is required to comply with this section
468 shall, in a form that is reasonably accessible to consumers, do
469 all of the following:
470 (a) Provide a clear and conspicuous link on the business’
471 Internet home page, titled “Do Not Sell My Personal
472 Information,” to a web page that enables a consumer or a person
473 authorized by the consumer to opt out of the sale of the
474 consumer’s personal information. A business may not require a
Page 17 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
475 consumer to create an account in order to direct the business
476 not to sell the consumer’s information.
477 (b) Ensure that all individuals responsible for handling
478 consumer inquiries about the business’ privacy practices or the
479 business’ compliance with this section are informed of all
480 requirements of this section and how to direct consumers to
481 exercise their rights.
482 (c) For consumers who exercise their right to opt out of
483 the sale of their personal information, refrain from selling
484 personal information the business collected about the consumer
485 as soon as reasonably possible but no longer than 2 business
486 days after receiving the request to opt out.
487 (d) For consumers who have opted out of the sale of their
488 personal information, respect the consumer’s decision to opt out
489 for at least 12 months before requesting that the consumer
490 authorize the sale of the consumer’s personal information.
491 (e) Use any personal information collected from the
492 consumer in connection with the submission of the consumer’s
493 opt-out request solely for the purposes of complying with the
494 opt-out request.
495 (f) Ensure that consumers have the right to submit a
496 verified request for certain information from a business,
497 including the sources from which the consumer’s personal
498 information was collected, the specific items of personal
499 information it has collected about the consumer, and any third
500 parties to whom the personal information was sold.
501 (6) Consumers have the right to submit a verified request
502 for the deletion of their personal information that the business
503 has collected.
Page 18 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
504 (7) A business, or a service provider acting pursuant to
505 its contract with the business or another service provider, is
506 not required to comply with a consumer’s verified request to
507 delete the consumer’s personal information if it is necessary
508 for the business or service provider to maintain the consumer’s
509 personal information in order to do any of the following:
510 (a) Complete the transaction for which the personal
511 information was collected, fulfill the terms of a written
512 warranty or product recall conducted in accordance with federal
513 law, provide a good or service requested by the consumer, or
514 otherwise perform a contract between the business and the
515 consumer.
516 (b) Help to ensure security and integrity to the extent
517 that the use of the consumer’s personal information is
518 reasonably necessary and proportionate for those purposes.
519 (c) Debug to identify and repair errors that impair
520 existing intended functionality.
521 (d) Exercise free speech, ensure the right of another
522 consumer to exercise that consumer’s right of free speech, or
523 exercise another right provided for by law.
524 (e) Engage in public or peer-reviewed scientific,
525 historical, or statistical research that conforms or adheres to
526 all other applicable ethics and privacy laws, when the business’
527 deletion of the information is likely to render impossible or
528 seriously impair the ability to complete such research, if the
529 consumer has provided informed consent.
530 (f) Comply with a legal obligation.
531 (8) Consumers have the right to submit a verified request
532 for correction of their personal information held by a business
Page 19 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
533 if that information is inaccurate.
534 (9) This section may not be construed to require a business
535 to comply by including the required links and text on the home
536 page that the business makes available to the public generally,
537 if:
538 (a) The business maintains a separate and additional home
539 page that is dedicated to consumers in this state and includes
540 the required links and text; and
541 (b) The business takes reasonable steps to ensure that
542 consumers in this state are directed to the home page for
543 consumers in this state and not the home page made available to
544 the public generally.
545 (10) A consumer may authorize another person to opt out of
546 the sale of the consumer’s personal information. A business
547 shall comply with an opt-out request received from a person
548 authorized by the consumer to act on the consumer’s behalf,
549 including a request received through a user-enabled global
550 privacy control, such as a browser plug-in or privacy setting,
551 device setting, or other mechanism, which communicates or
552 signals the consumer’s choice to opt out, and may not require a
553 consumer to make a verified request to opt out of the sale of
554 his or her information.
555 (11) Each business shall establish a designated request
556 address through which a consumer may submit a request to
557 exercise his or her rights under this act.
558 (12)(a) A business that receives a verified request:
559 1. For a consumer’s personal information, shall disclose to
560 the consumer any personal information about the consumer which
561 it has collected since July 1, 2022, directly or indirectly,
Page 20 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
562 including through or by a service provider.
563 2. To correct a consumer’s inaccurate personal information,
564 shall correct the inaccurate personal information.
565 3. To delete a consumer’s personal information, shall
566 delete such personal information.
567 (b) A service provider is not required to personally comply
568 with a verified request received directly from a consumer or a
569 consumer’s authorized agent to the extent that the service
570 provider has collected personal information about the consumer
571 in its role as a service provider. A service provider shall
572 provide assistance to a business with which it has a contractual
573 relationship with respect to the business’ response to a
574 verifiable consumer request, including, but not limited to, by
575 providing to the business the consumer’s personal information in
576 the service provider’s possession which the service provider
577 obtained as a result of providing services to the business.
578 (c) At the direction of the business, a service provider
579 shall correct inaccurate personal information, or delete
580 personal information, or enable the business to do the same, and
581 shall notify any service providers who may have accessed such
582 personal information from or through the service provider, to
583 correct or delete the consumer’s personal information, as
584 applicable.
585 (d) A business shall comply with a verified request
586 submitted by a consumer to access, correct, or delete personal
587 information within 30 days after the date the request is
588 submitted. A business may extend such period by up to 30 days if
589 the business, in good faith, determines that such an extension
590 is reasonably necessary. A business that extends the period
Page 21 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
591 shall notify the consumer of the necessity of an extension.
592 (13) A business shall comply with a consumer’s previous
593 expressed decision to opt out of the sale of his or her personal
594 information without requiring the consumer to take any
595 additional action if:
596 (a) The business is able to identify the consumer through a
597 login protocol or any other process the business uses to
598 identify consumers and the consumer has previously exercised his
599 or her right to opt out of the sale of his or her personal
600 information; or
601 (b) The business is aware of the consumer’s desire to opt
602 out of the sale of his or her personal information through the
603 use of a user-enabled global privacy control, such as a browser,
604 browser instruction, plug-in or privacy setting, device setting,
605 application, service, or other mechanism, which communicates or
606 signals the consumer’s choice to opt out.
607 (14) A business shall make available, in a manner
608 reasonably accessible to consumers whose personal information
609 the business collects through its website or online service, a
610 notice that does all of the following:
611 (a) Identifies the categories of personal information that
612 the business collects through its website or online service
613 about consumers who use or visit the website or online service
614 and the categories of third parties with whom the business may
615 share such personal information.
616 (b) Provides a description of the process, if applicable,
617 for a consumer who uses or visits the website or online service
618 to review and request changes to any of his or her personal
619 information that is collected through the website or online
Page 22 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
620 service.
621 (c) Describes the process by which the business notifies
622 consumers who use or visit the website or online service of
623 material changes to the notice.
624 (d) Discloses whether a third party may collect personal
625 information about a consumer’s online activities over time and
626 across different websites or online services when the consumer
627 uses the business’ website or online service.
628 (e) States the effective date of the notice.
629 Section 6. Section 501.176, Florida Statutes, is created to
630 read:
631 501.176 Exclusions.—
632 (1) The obligations imposed on a business by this act do
633 not restrict a business’ ability to do any of the following:
634 (a) Comply with federal, state, or local laws.
635 (b) Comply with a civil, criminal, or regulatory inquiry or
636 an investigation, a subpoena, or a summons by federal, state, or
637 local authorities.
638 (c) Cooperate with law enforcement agencies concerning
639 conduct or activity that the business, service provider, or
640 third party reasonably and in good faith believes may violate
641 federal, state, or local law.
642 (d) Exercise or defend legal claims.
643 (e) Collect, use, retain, sell, or disclose consumer
644 information that is de-identified or in the aggregate consumer
645 information that relates to a group or category of consumers
646 from which individual consumer identities have been removed.
647 (f) Collect or sell a consumer’s personal information if
648 every aspect of that commercial conduct takes place wholly
Page 23 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
649 outside of this state. For purposes of this act, commercial
650 conduct takes place wholly outside of this state if the business
651 collected that information while the consumer was outside of
652 this state, no part of the sale of the consumer’s personal
653 information occurred in this state, and no personal information
654 collected while the consumer was in this state is sold. This
655 paragraph does not permit a business to store, including on a
656 device, personal information about a consumer when the consumer
657 is in this state and then to collect that personal information
658 when the consumer and stored personal information are outside of
659 this state.
660 (2) This act does not apply to any of the following:
661 (a) A business that collects or discloses the personal
662 information of the business’ employees, applicants, interns, or
663 volunteers so long as the business is collecting or disclosing
664 such information within the scope of its role as an employer.
665 (b) Health information that is collected by a covered
666 entity or business associate governed by the privacy, security,
667 and breach notification rules issued by the United States
668 Department of Health and Human Services in 45 C.F.R. parts 160
669 and 164.
670 (c) A covered entity governed by the privacy, security, and
671 breach notification rules issued by the United States Department
672 of Health and Human Services in 45 C.F.R. parts 160 and 164, to
673 the extent the provider or covered entity maintains patient
674 information in the same manner as medical information or
675 protected health information as described in paragraph (b).
676 (d) Information collected as part of a clinical trial
677 subject to the Federal Policy for the Protection of Human
Page 24 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
678 Subjects pursuant to good clinical practice guidelines issued by
679 the International Council for Harmonisation of Technical
680 Requirements for Pharmaceuticals for Human Use or pursuant to
681 human subject protection requirements of the United States Food
682 and Drug Administration.
683 (e) The sale of personal information to or from a consumer
684 reporting agency if that information is to be reported in or
685 used to generate a consumer report as defined by 15 U.S.C. s.
686 1681(a), and if the use of that information is limited by the
687 federal Fair Credit Reporting Act, 15 U.S.C. s. 1681 et seq.
688 (f) Personal information collected, processed, sold, or
689 disclosed pursuant to the federal Gramm-Leach-Bliley Act, 12
690 U.S.C. s. 24(a) et seq. and implementing regulations.
691 (g) Personal information collected, processed, sold, or
692 disclosed pursuant to the federal Driver’s Privacy Protection
693 Act of 1994, 18 U.S.C. s. 2721 et seq.;
694 (h) Education information covered by the federal Family
695 Educational Rights and Privacy Act, 20 U.S.C. s. 1232g and 34
696 C.F.R. part 99.
697 (i) Personal information collected, processed, sold, or
698 disclosed in relation to price, route, or service as those terms
699 are used in the federal Airline Deregulation Act, 49 U.S.C. s.
700 40101 et seq., by entities subject to the federal Airline
701 Deregulation Act, to the extent the provisions of this act are
702 preempted by s. 41713 of the federal Airline Deregulation Act.
703 (j) Vehicle information or ownership information retained
704 or shared between a new motor vehicle dealer and the vehicle’s
705 manufacturer if the vehicle or ownership information is shared
706 for the purpose of effectuating, or in anticipation of
Page 25 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
707 effectuating, a vehicle repair covered by a vehicle warranty or
708 a recall conducted pursuant to 49 U.S.C. s. 30118-30120,
709 provided that the new motor vehicle dealer or vehicle
710 manufacturer with which that vehicle information or ownership
711 information is shared does not sell, share, or use that
712 information for any other purpose. As used in this paragraph,
713 the term “vehicle information” means the vehicle information
714 number, make, model, year, and odometer reading, and the term
715 “ownership information” means the name or names of the
716 registered owner or owners and the contact information for the
717 owner or owners.
718 (3) If a request from a consumer is manifestly unfounded or
719 excessive, in particular because of the request’s repetitive
720 character, a business may either charge a reasonable fee, taking
721 into account the administrative costs of providing the
722 information or communication or taking the action requested, or
723 refuse to act on the request and notify the consumer of the
724 reason for refusing the request. The business bears the burden
725 of demonstrating that any verified consumer request is
726 manifestly unfounded or excessive.
727 (4) A business that discloses personal information to a
728 service provider is not liable under this act if the service
729 provider receiving the personal information uses it in violation
730 of the restrictions set forth in the act, provided that, at the
731 time of disclosing the personal information, the business does
732 not have actual knowledge, or reason to believe, that the
733 service provider intends to commit such a violation. A service
734 provider is likewise not liable under this act for the
735 obligations of a business for which it provides services as set
Page 26 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
736 forth in this act.
737 (5) This act may not be construed to require a business to
738 reidentify or otherwise link information that is not maintained
739 in a manner that would be considered personal information;
740 retain any personal information about a consumer if, in the
741 ordinary course of business, that information would not be
742 retained; maintain information in identifiable, linkable, or
743 associable form; or collect, obtain, retain, or access any data
744 or technology in order to be capable of linking or associating a
745 verifiable consumer request with personal information.
746 (6) The rights afforded to consumers and the obligations
747 imposed on a business in this act may not adversely affect the
748 rights and freedoms of other consumers. Notwithstanding s.
749 501.175(7), a verified request for specific items of personal
750 information, to delete a consumer’s personal information, or to
751 correct inaccurate personal information does not extend to
752 personal information about the consumer which belongs to, or
753 which the business maintains on behalf of, another natural
754 person.
755 Section 7. Section 501.177, Florida Statutes, is created to
756 read:
757 501.177 Civil actions; private right of action; attorney
758 general; rules.—
759 (1) If any business violates any provision of this act, the
760 consumer may initiate a civil action for any of the following:
761 (a) Recovery of damages of at least $100 and not more than
762 $750 per consumer per incident or actual damages, whichever is
763 greater.
764 (b) Injunctive or declaratory relief.
Page 27 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
765 (c) Reasonable costs of enforcement, including a reasonable
766 attorney fee and costs.
767 (d) Any other relief deemed appropriate by the court.
768 (2) In assessing the amount of statutory damages, the court
769 shall consider any one or more of the relevant circumstances
770 presented by any of the parties to the case, including, but not
771 limited to, the nature and seriousness of the misconduct, the
772 number of violations, the persistence of the misconduct, the
773 length of time over which the misconduct occurred, the
774 willfulness of the defendant’s misconduct, and the defendant’s
775 assets, liabilities, and net worth.
776 (3)(a) The Department of Legal Affairs shall adopt rules to
777 enforce this act. If the department has reason to believe that a
778 business, directly or indirectly, has violated or is violating
779 this section, the department may institute an appropriate legal
780 proceeding against the business.
781 (b) The trial court, upon a showing that any business,
782 directly or indirectly, has violated or is violating this act,
783 may take any of the following actions:
784 1. Issue a temporary or permanent injunction.
785 2. Impose a civil penalty not to exceed $5,000 for each
786 violation. If the violation involves a consumer who was 16 years
787 of age or younger at the time of the violation, the court may
788 triple the civil penalty.
789 3. Award reasonable costs of enforcement, including a
790 reasonable attorney fee and costs.
791 4. Grant such other relief as the court may deem
792 appropriate.
793 Section 8. This act shall take effect January 1, 2022.
Page 28 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
794
795 ================= T I T L E A M E N D M E N T ================
796 And the title is amended as follows:
797 Delete everything before the enacting clause
798 and insert:
799 A bill to be entitled
800 An act relating to consumer data privacy; creating s.
801 501.172, F.S.; providing a short title; creating s.
802 501.173, F.S.; providing a purpose; creating s.
803 501.174, F.S.; defining terms; creating s. 501.1745,
804 F.S.; requiring certain businesses that collect
805 consumer personal information to provide certain
806 information to the consumer; requiring such
807 collection, use, retention, and sharing of such
808 information to meet certain requirements; requiring
809 such businesses to implement reasonable security
810 procedures and practices; requiring such businesses to
811 enter into an agreement with third parties under
812 certain circumstances; creating s. 501.175, F.S.;
813 providing that consumers have the right to direct
814 certain businesses not to sell their personal
815 information; providing construction; requiring such
816 businesses to notify consumers of such right;
817 requiring businesses to comply with such a request
818 under certain circumstances; prohibiting businesses
819 from selling the personal information of consumers
820 younger than a specified age without express
821 authorization from the consumer or the consumer’s
822 parent or guardian under certain circumstances;
Page 29 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
823 providing that a business that willfully disregards a
824 consumer’s age is deemed to have actual knowledge of
825 the consumer’s age; requiring certain businesses to
826 provide a specified link on their home page for
827 consumers to opt out; providing requirements for
828 businesses to comply with a consumer’s opt-out
829 request; providing that consumers have the right to
830 submit a verified request for businesses to delete or
831 correct personal information the businesses have
832 collected about the consumers; providing construction;
833 providing that consumers may authorize other persons
834 to opt out of the sale of the consumer’s personal
835 information on the consumer’s behalf; requiring
836 businesses to establish designated addresses through
837 which consumers may submit verified requests;
838 specifying requirements for consumers’ verified
839 requests and businesses’ responses; requiring
840 businesses to comply with previous consumer requests
841 without requiring additional information from the
842 consumer, under certain circumstances; requiring
843 businesses to provide certain notices to consumers;
844 creating s. 501.176, F.S.; providing applicability;
845 authorizing businesses to charge consumers a
846 reasonable fee for manifestly unfounded or excessive
847 requests, or to refuse to complete a request under
848 certain circumstances; providing for business
849 liability under certain circumstances; providing
850 construction; providing that a consumer’s rights and
851 the obligations of a business may not adversely affect
Page 30 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì482404~Î482404
852 the rights and freedoms of other consumers; creating
853 s. 501.177, F.S.; authorizing consumers to initiate
854 civil actions for violations; providing civil
855 remedies; requiring the Department of Legal Affairs to
856 adopt rules and to initiate legal proceedings against
857 a business under certain circumstances; providing
858 civil penalties; providing an effective date.
Page 31 of 31
3/18/2021 4:20:28 PM 577-02614A-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì122682,Î122682
LEGISLATIVE ACTION
Senate . House
Comm: UNFAV .
03/23/2021 .
.
.
.
The Committee on Commerce and Tourism (Taddeo) recommended the
following:
1 Senate Amendment to Amendment (482404)
2
3 Delete line 53
4 and insert:
5 5. Satisfies at least two of the following thresholds:
Page 1 of 1
3/22/2021 9:40:52 AM 577-03126-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì589178\Î589178
LEGISLATIVE ACTION
Senate . House
Comm: UNFAV .
03/23/2021 .
.
.
.
The Committee on Commerce and Tourism (Taddeo) recommended the
following:
1 Senate Amendment to Amendment (482404) (with title
2 amendment)
3
4 Delete lines 757 - 792
5 and insert:
6 501.177 Department of Legal Affairs; rules.—
7 (1) The Department of Legal Affairs shall adopt rules to
8 enforce this act. If the department has reason to believe that a
9 business, directly or indirectly, has violated or is violating
10 this section, the department may institute an appropriate legal
Page 1 of 2
3/22/2021 9:38:11 AM 577-03127-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1734
Ì589178\Î589178
11 proceeding against the business.
12 (2) The trial court, upon a showing that any business,
13 directly or indirectly, has violated or is violating this act,
14 may take any of the following actions:
15 (a) Issue a temporary or permanent injunction.
16 (b) Impose a civil penalty not to exceed $5,000 for each
17 violation. If the violation involves a consumer who was 16 years
18 of age or younger at the time of the violation, the court may
19 triple the civil penalty.
20 (c) Award reasonable costs of enforcement, including a
21 reasonable attorney fee and costs.
22 (d) Grant such other relief as the court may deem
23 appropriate.
24
25 ================= T I T L E A M E N D M E N T ================
26 And the title is amended as follows:
27 Delete lines 853 - 855
28 and insert:
29 s. 501.177, F.S.; requiring the Department of Legal
30 Affairs to
Page 2 of 2
3/22/2021 9:38:11 AM 577-03127-21
Florida Senate - 2021 SB 1734 Florida Senate - 2021 SB 1734
By Senator Bradley
5-01023C-21 20211734__ 5-01023C-21 20211734__
1 A bill to be entitled 30 personal information or to request the deletion of
2 An act relating to consumer data privacy; creating s. 31 such information on the consumer’s behalf; requiring
3 501.172, F.S.; providing a short title; creating s. 32 businesses to establish designated addresses through
4 501.173, F.S.; providing a purpose; creating s. 33 which consumers may submit verified requests;
5 501.174, F.S.; defining terms; creating s. 501.175, 34 specifying requirements for consumers’ verified
6 F.S.; providing that consumers have the right to 35 requests and businesses’ responses; requiring
7 direct certain businesses not to sell their personal 36 businesses to comply with previous consumer requests
8 information; providing construction; requiring such 37 without requiring additional information from the
9 businesses to notify consumers of such right; 38 consumer, under certain circumstances; requiring
10 requiring businesses to comply with such a request 39 businesses to provide certain notices to consumers;
11 under certain circumstances; prohibiting businesses 40 creating s. 501.176, F.S.; providing applicability;
12 from selling the personal information of consumers 41 authorizing businesses to charge consumers a
13 younger than a specified age without express 42 reasonable fee for manifestly unfounded or excessive
14 authorization from the consumer or the consumer’s 43 requests, or to refuse to complete a request under
15 parent or guardian under certain circumstances; 44 certain circumstances; providing for business
16 providing that a business that willfully disregards a 45 liability under certain circumstances; providing
17 consumer’s age is deemed to have actual knowledge of 46 construction; providing that a consumer’s rights and
18 the consumer’s age; requiring certain businesses to 47 the obligations of a business may not adversely affect
19 provide a specified link on their web page for 48 the rights and freedoms of other consumers; creating
20 consumers to opt out; providing requirements for 49 s. 501.177, F.S.; authorizing consumers to initiate
21 businesses to comply with a consumer’s opt-out 50 civil actions for violations; providing civil
22 request; providing that consumers have the right to 51 remedies; requiring the Department of Legal Affairs to
23 submit a verified request for businesses to delete or 52 adopt rules and to initiate legal proceedings against
24 correct personal information the businesses have 53 a business under certain circumstances; providing
25 collected about the consumers; prohibiting businesses 54 civil penalties; providing an effective date.
26 from taking certain actions to discriminate against 55
27 consumers who exercise certain rights; providing 56 Be It Enacted by the Legislature of the State of Florida:
28 construction; providing that consumers may authorize 57
29 other persons to opt out of the sale of the consumer’s 58 Section 1. Section 501.172, Florida Statutes, is created to
Page 1 of 21 Page 2 of 21
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2021 SB 1734 Florida Senate - 2021 SB 1734
5-01023C-21 20211734__ 5-01023C-21 20211734__
59 read: 88 the following requirements:
60 501.172 Short title.—This act may be cited as the “Florida 89 1. Is organized or operated for the profit or financial
61 Privacy Protection Act.” 90 benefit of its shareholders or owners;
62 Section 2. Section 501.173, Florida Statutes, is created to 91 2. Does business in this state;
63 read: 92 3. Collects personal information about consumers, or is the
64 501.173 Purpose.—This act shall be construed liberally in 93 entity on behalf of which such information is collected;
65 recognition that privacy is an important right, and consumers in 94 4. Determines the purposes and means of processing personal
66 this state should have the ability to share their personal 95 information about consumers, alone or jointly with others; and
67 information as they wish, in a way that is safe and that they 96 5. Satisfies at least one of the following thresholds:
68 understand and control. 97 a. Has global annual gross revenues in excess of $25
69 Section 3. Section 501.174, Florida Statutes, is created to 98 million, as adjusted in January of every odd-numbered year to
70 read: 99 reflect any increase in the Consumer Price Index.
71 501.174 Definitions.—As used in ss. 501.172-501.177, unless 100 b. Annually buys, receives for the business’ commercial
72 the context otherwise requires, the term: 101 purposes, sells, or shares for commercial purposes the personal
73 (1) “Biometric information” means an individual’s 102 information of 50,000 or more consumers, households, or devices.
74 physiological, biological, or behavioral characteristics, 103 c. Derives 50 percent or more of its global annual revenues
75 including an individual’s deoxyribonucleic acid (DNA), which can 104 from selling or sharing personal information about consumers.
76 be used, singly or in combination with each other or with other 105 (b) An entity that controls or is controlled by a business
77 identifying data, to establish individual identity. The term 106 and that shares common branding with the business. As used in
78 includes, but is not limited to, imagery of the iris, retina, 107 this paragraph, the term:
79 fingerprint, face, hand, or palm; vein patterns; voice 108 1. “Common branding” means a shared name, service mark, or
80 recordings from which an identifier template, such as a 109 trademark.
81 faceprint, a minutiae template, or a voice print, can be 110 2. “Control” means:
82 extracted; keystroke patterns or rhythms; gait patterns or 111 a. Ownership of, or the power to vote, more than 50 percent
83 rhythms; and sleep, health, or exercise data that contain 112 of the outstanding shares of any class of voting security of a
84 identifying information. 113 business;
85 (2) “Business” means: 114 b. Control in any manner over the election of a majority of
86 (a) A sole proprietorship, a partnership, a limited 115 the directors, or of individuals exercising similar functions;
87 liability company, a corporation, or an association that meets 116 or
Page 3 of 21 Page 4 of 21
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2021 SB 1734 Florida Senate - 2021 SB 1734
5-01023C-21 20211734__ 5-01023C-21 20211734__
117 c. The power to exercise a controlling influence over the 146 The term does not include engaging in speech that state or
118 management of a company. 147 federal courts have recognized as noncommercial speech,
119 (c) A joint venture or partnership composed of businesses 148 including political speech and journalism.
120 in which each business has at least a 40 percent interest. For 149 (5) “Consumer” means a natural person who is in this state
121 the purposes of this act, the joint venture or partnership and 150 for other than a temporary or transitory purpose, or a natural
122 each business that composes the joint venture or partnership 151 person who is domiciled in this state but is outside this state
123 must be considered a separate, single business, except that 152 for a temporary or transitory purpose, who seeks or acquires, by
124 personal information in the possession of each business and 153 purchase or lease, any good, service, money, or credit for
125 disclosed to the joint venture or partnership may not be shared 154 personal, family, or household purposes from a business. The
126 with the other businesses. 155 term does not include any other natural person who is a
127 156 nonresident.
128 The term does not include a third party that operates, hosts, or 157 (6) “De-identified” means information:
129 manages a website or an online service on behalf of a business 158 (a) That cannot reasonably identify, relate to, describe,
130 or processes information on behalf of a business; or an entity 159 be associated with, or be linked directly or indirectly to a
131 that is subject to the Health Insurance Portability and 160 particular consumer or device;
132 Accountability Act of 1996, Pub. L. No. 104-191, and regulations 161 (b) Containing data that the business has taken reasonable
133 adopted pursuant thereto. 162 measures to ensure could not be reidentified;
134 (3) “Business purpose” means a business or a service 163 (c) Containing data that the business publicly commits to
135 provider that uses personal information for the operational 164 maintain and use in a de-identified fashion and that it does not
136 purposes of the business or service provider, which is necessary 165 attempt to reidentify; and
137 and proportionate to achieve the operational purpose for which 166 (d) Containing data that the business contractually
138 the personal information was collected or processed or for 167 prohibits downstream recipients from attempting to reidentify.
139 another operational purpose that is compatible with the context 168 (7) “Designated request address” means an electronic mail
140 in which the personal information was collected. 169 address, a toll-free telephone number, or a website established
141 (4) “Commercial purposes” means to advance a business’ 170 by a business through which a consumer may submit a verified
142 commercial or economic interests, such as by inducing a consumer 171 request to the business.
143 to buy, rent, lease, join, subscribe to, provide, or exchange 172 (8) “Personal information” means information that
144 products, goods, property, information, or services or enabling 173 identifies, relates to, describes, is reasonably capable of
145 or effecting, directly or indirectly, a commercial transaction. 174 being associated with, or could reasonably be linked, directly
Page 5 of 21 Page 6 of 21
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2021 SB 1734 Florida Senate - 2021 SB 1734
5-01023C-21 20211734__ 5-01023C-21 20211734__
175 or indirectly, with a particular consumer or household. 204 abilities, and aptitudes.
176 (a) The term includes, but is not limited to, all of the 205 13. Any other information that may serve as a probabilistic
177 following items of personal identifying information about a 206 identifier concerning a consumer which is collected from the
178 consumer collected and maintained by a person or business in an 207 consumer through a website, an online service, or some other
179 accessible format: 208 means by the business and maintained by the business in
180 1. A first and last name. 209 combination with an identifier in a form that, when used
181 2. A home or other physical address that includes the name 210 together with the information, identifies the consumer.
182 of a street and the name of a city or town. 211 (b) The term does not include:
183 3. An electronic mail address. 212 1. Information about a consumer actually obtained from
184 4. A telephone number. 213 public records, including information that is lawfully made
185 5. A social security number. 214 available from federal, state, or local governmental records.
186 6. An identifier that allows a consumer to be contacted 215 2. Consumer information that is de-identified or aggregate
187 either physically or online. 216 consumer information that relates to a group or category of
188 7. Biometric information, such as DNA or fingerprints or 217 consumers from which individual consumer identities have been
189 any other biometric information collected by a business about a 218 removed.
190 consumer without the consumer’s knowledge. 219 3. Information collected, processed, sold, or disclosed
191 8. Internet or other electronic network activity 220 pursuant to the federal Gramm-Leach-Bliley Act, 15 U.S.C. s.
192 information, including, but not limited to, browsing history, 221 6801 et seq., and regulations adopted pursuant thereto, if it is
193 search history, and information regarding a consumer’s 222 inconsistent with that act, and only to the extent of the
194 interaction with a website, an application, or an advertisement. 223 inconsistency.
195 9. Audio, electronic, visual, thermal, olfactory, 224 (9) “Probabilistic identifier” means the identification of
196 geolocation, or similar information. 225 a consumer or a device to a degree of certainty more probable
197 10. Professional or employment-related information. 226 than not, based on any categories of personal information
198 11. Education information, defined as only information that 227 included in or similar to the categories enumerated in
199 is not publicly available. 228 subsection (8).
200 12. Inferences drawn from any information specified in this 229 (10) “Profiling” means any form of automated processing
201 paragraph which can create a profile about a consumer reflecting 230 performed on personal data to evaluate, analyze, or predict
202 the consumer’s preferences, characteristics, psychological 231 personal aspects related to an identified or identifiable
203 trends, predispositions, behavior, attitudes, intelligence, 232 natural person’s economic situation, health, personal
Page 7 of 21 Page 8 of 21
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2021 SB 1734 Florida Senate - 2021 SB 1734
5-01023C-21 20211734__ 5-01023C-21 20211734__
233 preferences, interests, reliability, behavior, location, or 262 of the business with personal information that the service
234 movements. 263 provider receives from or on behalf of another person or persons
235 (11)(a) “Sale” or “sell” means to sell, rent, release, 264 or collects from its own interaction with consumers.
236 disclose, disseminate, make available, loan, share, transfer, or 265 (13) “Targeted advertising” means displaying an
237 otherwise communicate orally, in writing, or by electronic or 266 advertisement to a consumer when the advertisement is selected
238 other means, a consumer’s personal information by a business to 267 based on personal data obtained from a consumer’s activities
239 another business or a third party for monetary or other tangible 268 over time and across nonaffiliated websites or online
240 or intangible consideration or for any commercial purpose. 269 applications to predict such consumer’s preferences or
241 (b) The term does not include any of the following: 270 interests. The term does not include any of the following:
242 1. The business disclosing personal information to a 271 (a) Advertisements based on activities within a business’
243 service provider that processes the personal information on 272 own websites or online applications.
244 behalf of the business. 273 (b) Advertisements based on the context of a consumer’s
245 2. The business disclosing personal information to another 274 current search query, visit to a website, or online application.
246 business that the consumer has a direct relationship, for the 275 (c) Advertisements directed to a consumer in response to
247 purposes of providing a product or service requested by the 276 the consumer’s request for information or feedback.
248 consumer. 277 (d) Processing personal data processed solely to measure or
249 (12) “Service provider” means a person that processes 278 report advertising performance, reach, or frequency.
250 personal information on behalf of a business and to which the 279 (14) “Third party” means a person who is not any of the
251 business discloses a consumer’s personal information pursuant to 280 following:
252 a written or electronic contract if: 281 (a) The business that collects personal information from
253 (a) The contract prohibits the person from retaining, 282 consumers under this section.
254 using, or disclosing the personal information for any purpose 283 (b) A service provider that the business discloses a
255 other than the specific purposes of performing the services 284 consumer’s personal information for a business purpose pursuant
256 specified in the contract for the business, including a 285 to a written contract that does all of the following:
257 prohibition on retaining, using, or disclosing the personal 286 1. Prohibits the person receiving the personal information
258 information for a commercial purpose other than providing the 287 from doing any of the following:
259 services specified in the contract with the business; and 288 a. Selling the personal information.
260 (b) The service provider does not combine the personal 289 b. Retaining, using, or disclosing the personal information
261 information that the service provider receives from or on behalf 290 for any purpose other than for the specific purpose of
Page 9 of 21 Page 10 of 21
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2021 SB 1734 Florida Senate - 2021 SB 1734
5-01023C-21 20211734__ 5-01023C-21 20211734__
291 performing the services specified in the contract, including 320 by a natural person or a person registered with the Secretary of
292 retaining, using, or disclosing the personal information for a 321 State, authorized by the consumer to act on the consumer’s
293 commercial purpose other than providing the services specified 322 behalf, to a business for which a business can reasonably verify
294 in the contract. 323 the authenticity of the request.
295 c. Retaining, using, or disclosing the information outside 324 Section 4. Section 501.175, Florida Statutes, is created to
296 of the direct business relationship between the person and the 325 read:
297 business. 326 501.175 Use of personal information; third parties; other
298 d. Combining the personal information that the service 327 rights.—
299 provider receives from or on behalf of any person with personal 328 (1)(a) A consumer has the right, at any time, to direct a
300 information that the service provider receives from or on behalf 329 business that sells personal information about the consumer not
301 of another person or persons or collects from its own 330 to sell the consumer’s personal information. This right may be
302 interaction with consumers. 331 referred to as the right to opt out of the sale.
303 2. Includes a certification made by the person who receives 332 (b) As part of the right to opt out of the sale of his or
304 the personal information that the person understands the 333 her personal information, a consumer has the right, at any time,
305 restrictions under this act and will comply with them. 334 to opt out of the processing of the consumer’s personal data for
306 (15) “Unique identifier” or “unique personal identifier” 335 purposes of targeted advertising or profiling in furtherance of
307 means a persistent identifier that can be used to recognize a 336 decisions that produce legal or similarly significant effects
308 consumer, a family, or a device linked to a consumer or family 337 concerning the consumer. However, this paragraph may not be
309 over time and across different services, including, but not 338 construed to prohibit the business that collected the consumer’s
310 limited to, a device identifier; an Internet protocol address; 339 personal information from offering a different price, rate,
311 cookies, beacons, pixel tags, mobile ad identifiers, or similar 340 level, quality, or selection of goods or services to a consumer,
312 technology; a customer number, unique pseudonym, or user alias; 341 including offering goods or services for no fee, if the consumer
313 telephone numbers; or other forms of persistent or probabilistic 342 has opted out of targeted advertising or the offer is related to
314 identifiers that can be used to identify a particular consumer 343 a consumer’s voluntary participation in a bona fide loyalty,
315 or device. For purposes of this subsection, the term “family” 344 rewards, premium features, discounts, or club card program.
316 means a custodial parent or guardian and any minor children of 345 (2) A business that sells consumers’ personal information
317 which the parent or guardian has custody. 346 to third parties shall provide notice to consumers that the
318 (16) “Verified request” means a request submitted by a 347 information may be sold and that consumers have the right to opt
319 consumer, by a consumer on behalf of the consumer’s minor child, 348 out of the sale of their personal information.
Page 11 of 21 Page 12 of 21
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2021 SB 1734 Florida Senate - 2021 SB 1734
5-01023C-21 20211734__ 5-01023C-21 20211734__
349 (3) A business that has received direction from a consumer 378 shall, in a form that is reasonably accessible to consumers, do
350 not to sell the consumer’s personal information or, in the case 379 all of the following:
351 of a minor consumer’s personal information, has not received 380 (a) Provide a clear and conspicuous link on the business’
352 consent to sell the minor consumer’s personal information, is 381 Internet home page, titled “Do Not Sell My Personal
353 prohibited from selling the consumer’s personal information 382 Information,” to a web page that enables a consumer or a person
354 after the business receives the consumer’s direction, unless the 383 authorized by the consumer to opt out of the sale of the
355 consumer subsequently provides express authorization for the 384 consumer’s personal information. A business may not require a
356 sale of the consumer’s personal information. A business that is 385 consumer to create an account in order to direct the business
357 able to authenticate the consumer, for example, by the consumer 386 not to sell the consumer’s information.
358 logging in, or that uses some other unique identifier for the 387 (b) Ensure that all individuals responsible for handling
359 consumer must comply with any privacy preferences the consumer 388 consumer inquiries about the business’ privacy practices or the
360 previously directed. The consumer may not be required to declare 389 business’ compliance with this section are informed of all
361 privacy preferences every time the consumer visits the business’ 390 requirements of this section and how to direct consumers to
362 website or uses the business’ online services. 391 exercise their rights.
363 (4)(a) Notwithstanding subsection (1), a business may not 392 (c) For consumers who exercise their right to opt out of
364 sell the personal information of consumers if the business has 393 the sale of their personal information, refrain from selling
365 actual knowledge that the consumer is younger than 16 years of 394 personal information the business collected about the consumer
366 age, unless: 395 within 15 business days after receiving the request to opt out.
367 1. The consumer, in the case of consumers between 13 and 16 396 (d) For consumers who have opted out of the sale of their
368 years of age, has affirmatively authorized the sale of the 397 personal information, respect the consumer’s decision to opt out
369 consumer’s personal information; or 398 for at least 12 months before requesting that the consumer
370 2. The consumer’s parent or guardian, in the case of 399 authorize the sale of the consumer’s personal information.
371 consumers who are younger than 13 years of age, has 400 (e) Use any personal information collected from the
372 affirmatively authorized the sale of the consumer’s personal 401 consumer in connection with the submission of the consumer’s
373 information. 402 opt-out request solely for the purposes of complying with the
374 (b) A business that willfully disregards the consumer’s age 403 opt-out request.
375 is deemed to have actual knowledge of the consumer’s age. This 404 (f) Ensure that consumers have the right to submit a
376 right may be referred to as the right to opt in. 405 verified request for certain information from a business,
377 (5) A business that is required to comply with this section 406 including the sources from which the consumer’s personal
Page 13 of 21 Page 14 of 21
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2021 SB 1734 Florida Senate - 2021 SB 1734
5-01023C-21 20211734__ 5-01023C-21 20211734__
407 information was collected, the specific elements of personal 436 the sale of the consumer’s personal information or to request
408 information it collected about the consumer, and any third 437 the deletion of the consumer’s personal information on the
409 parties to whom the personal information was sold. 438 consumer’s behalf. A business shall comply with an opt-out
410 (6) Consumers have the right to submit a verified request 439 request or deletion request received from a person authorized by
411 that personal information that has been collected be deleted. A 440 the consumer to act on the consumer’s behalf, including a
412 business shall notify a third party to delete any consumer 441 request received through a user-enabled global privacy control,
413 personal information bought or received. 442 such as a browser plug-in or privacy setting, device setting, or
414 (7) Consumers have the right to submit a verified request 443 other mechanism, which communicates or signals the consumer’s
415 for correction of their personal information held by a business 444 choice to opt out.
416 if that information is inaccurate. 445 (11) Each business shall establish a designated request
417 (8) Consumers have the right to receive equal service and 446 address through which a consumer may submit a request to
418 pricing from a business, even if they exercise their privacy 447 exercise his or her rights under this act.
419 rights. A business may not discriminate against such consumers 448 (12) A business shall respond to a verified request
420 by denying them goods or services, charging different prices, or 449 submitted by a consumer to correct or delete personal
421 providing a different quality of goods or services to consumers 450 information within 30 days after the date the request is
422 who exercise their right to opt out from having their personal 451 submitted. A business may extend such period by up to 30 days if
423 information sold. 452 the business, in good faith, determines that such an extension
424 (9) This section may not be construed to require a business 453 is reasonably necessary. A business that extends the period
425 to comply by including the required links and text on the home 454 shall notify the consumer of the necessity of an extension.
426 page that the business makes available to the public generally, 455 (13) A business shall comply with a consumer’s previous
427 if: 456 expressed decision to opt out of the sale of his or her personal
428 (a) The business maintains a separate and additional home 457 information without requiring the consumer to take any
429 page that is dedicated to consumers in this state and includes 458 additional action if:
430 the required links and text; and 459 (a) The business is able to identify the consumer through a
431 (b) The business takes reasonable steps to ensure that 460 login protocol, and the consumer has previously exercised his or
432 consumers in this state are directed to the home page for 461 her right to opt out of the sale of their personal information;
433 consumers in this state and not the home page made available to 462 or
434 the public generally. 463 (b) The business is aware of the consumer’s desire to opt
435 (10) A consumer may authorize another person to opt out of 464 out of the sale of his or her personal information through the
Page 15 of 21 Page 16 of 21
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2021 SB 1734 Florida Senate - 2021 SB 1734
5-01023C-21 20211734__ 5-01023C-21 20211734__
465 use of a user-enabled global privacy control, such as a browser 494 not restrict a business’ ability to do any of the following:
466 plug-in or privacy setting, device setting, or other mechanism, 495 (a) Comply with federal, state, or local laws.
467 which communicates or signals the consumer’s choice to opt out. 496 (b) Comply with a civil, criminal, or regulatory inquiry or
468 (14) A business shall make available, in a manner 497 an investigation, a subpoena, or a summons by federal, state, or
469 reasonably accessible to consumers whose personal information 498 local authorities.
470 the business collects through its website or online service, a 499 (c) Cooperate with law enforcement agencies concerning
471 notice that does all of the following: 500 conduct or activity that the business, service provider, or
472 (a) Identifies the categories of personal information that 501 third party reasonably and in good faith believes may violate
473 the business collects through its website or online service 502 federal, state, or local law.
474 about consumers who use or visit the website or online service 503 (d) Exercise or defend legal claims.
475 and the categories of third parties with whom the business may 504 (e) Collect, use, retain, sell, or disclose consumer
476 share such personal information. 505 information that is de-identified or in the aggregate consumer
477 (b) Provides a description of the process, if applicable, 506 information that relates to a group or category of consumers
478 for a consumer who uses or visits the website or online service 507 from which individual consumer identities have been removed.
479 to review and request changes to any of his or her personal 508 (f) Collect or sell a consumer’s personal information if
480 information that is collected through the website or online 509 every aspect of that commercial conduct takes place wholly
481 service. 510 outside of this state. For purposes of this act, commercial
482 (c) Describes the process by which the business notifies 511 conduct takes place wholly outside of this state if the business
483 consumers who use or visit the website or online service of 512 collected that information while the consumer was outside of
484 material changes to the notice. 513 this state, no part of the sale of the consumer’s personal
485 (d) Discloses whether a third party may collect personal 514 information occurred in this state, and no personal information
486 information about a consumer’s online activities over time and 515 collected while the consumer was in this state is sold. This
487 across different websites or online services when the consumer 516 paragraph does not permit a business to store, including on a
488 uses the business’ website or online service. 517 device, personal information about a consumer when the consumer
489 (e) States the effective date of the notice. 518 is in this state and then to collect that personal information
490 Section 5. Section 501.176, Florida Statutes, is created to 519 when the consumer and stored personal information are outside of
491 read: 520 this state.
492 501.176 Exclusions.— 521 (2) This act does not apply to the sale of personal
493 (1) The obligations imposed on a business by this act do 522 information to or from a consumer reporting agency if that
Page 17 of 21 Page 18 of 21
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2021 SB 1734 Florida Senate - 2021 SB 1734
5-01023C-21 20211734__ 5-01023C-21 20211734__
523 information is to be reported in, or used to generate, a 552 Section 6. Section 501.177, Florida Statutes, is created to
524 consumer report as defined by subdivision (d) of 15 U.S.C. s. 553 read:
525 1681a, and use of that information is limited by the federal 554 501.177 Civil actions; private right of action; Attorney
526 Fair Credit Reporting Act, 15 U.S.C. s. 1681 et seq. 555 General; rules.—
527 (3) If a request from a consumer is manifestly unfounded or 556 (1) If any business violates any provision of this act, the
528 excessive, in particular because of the request’s repetitive 557 consumer may initiate a civil action for any of the following:
529 character, a business may either charge a reasonable fee, taking 558 (a) Recovery of damages of at least $100 and less than $750
530 into account the administrative costs of providing the 559 per consumer per incident or actual damages, whichever is
531 information or communication or taking the action requested, or 560 greater.
532 refuse to act on the request and notify the consumer of the 561 (b) Injunctive or declaratory relief.
533 reason for refusing the request. The business bears the burden 562 (c) Reasonable costs of enforcement, including a reasonable
534 of demonstrating that any verified consumer request is 563 attorney fee.
535 manifestly unfounded or excessive. 564 (d) Any other relief the court deems proper.
536 (4) A business that discloses personal information to a 565 (2)(a) The Department of Legal Affairs shall adopt rules to
537 service provider is not liable under this act if the service 566 enforce this act. If the department has reason to believe that a
538 provider receiving the personal information uses it in violation 567 business, directly or indirectly, has violated or is violating
539 of the restrictions set forth in the act, provided that, at the 568 this section, the department may institute an appropriate legal
540 time of disclosing the personal information, the business does 569 proceeding against the business.
541 not have actual knowledge, or reason to believe, that the 570 (b) The trial court, upon a showing that any business,
542 service provider intends to commit such a violation. A service 571 directly or indirectly, has violated or is violating this act,
543 provider is likewise not liable under this act for the 572 may take any of the following actions:
544 obligations of a business for which it provides services as set 573 1. Issue a temporary or permanent injunction.
545 forth in this act. 574 2. Impose a civil penalty not to exceed $5,000 for each
546 (5) This act may not be construed to require a business to 575 violation. If the consumer was under 16 years of age at the time
547 reidentify or otherwise link information that is not maintained 576 of the violation, the court may triple the civil penalty.
548 in a manner that would be considered personal information. 577 3. Award reasonable costs of enforcement, including a
549 (6) The rights afforded to consumers and the obligations 578 reasonable attorney fee.
550 imposed on a business in this act may not adversely affect the 579 4. Grant such other relief as the court may deem
551 rights and freedoms of other consumers. 580 appropriate.
Page 19 of 21 Page 20 of 21
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2021 SB 1734
5-01023C-21 20211734__
581 Section 7. This act shall take effect July 1, 2021.
Page 21 of 21
CODING: Words stricken are deletions; words underlined are additions.
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: SPB 7064
INTRODUCER: Commerce and Tourism Committee
SUBJECT: Public Records/Investigations by the Department of Legal Affairs
DATE: March 23, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Harmsen McKay Submitted as Comm. Bill/Fav
I. Summary:
SPB 7064 creates a public records exemption for information received by the Department of
Legal Affairs (DLA) pursuant to a notification of a violation under the Florida Privacy Protection
Act or received pursuant to an investigation made by the DLA or a law enforcement agency.
The bill permits the DLA to disclose this confidential and exempt information during an active
investigation under specific circumstances.
Once an investigation is completed or once an investigation ceases to be active, the following
information received by the DLA will remain confidential and exempt:
All information to which another public record exemption applies;
Personal information;
A computer forensic report;
Information that would otherwise reveal weaknesses in a business’ data security; and
Information that would disclose a business’ proprietary information.
The bill provides for the repeal of the exemption on October 2, 2026, unless it is reenacted by the
Legislature under the Open Government Sunset Review Act.
The bill takes effect on the same date that linked bill SB 1734 (implementing the Florida Privacy
Protection Act) takes effect, if such legislation is adopted in the same legislative session or an
extension thereof and becomes law.
BILL: SPB 7064 Page 2
II. Present Situation:
Access to Public Records - Generally
The Florida Constitution provides that the public has the right to inspect or copy records made or
received in connection with official governmental business.1 The right to inspect or copy applies
to the official business of any public body, officer, or employee of the state, including all three
branches of state government, local governmental entities, and any person acting on behalf of the
government.2
Additional requirements and exemptions related to public records are found in various statutes
and rules, depending on the branch of government involved. For instance, section 11.0431,
Florida Statutes (F.S.), provides public access requirements for legislative records. Relevant
exemptions are codified in s. 11.0431(2)-(3), F.S., and the statutory provisions are adopted in the
rules of each house of the legislature.3 Florida Rule of Judicial Administration 2.420 governs
public access to judicial branch records.4 Lastly, chapter 119, F.S., provides requirements for
public records held by executive agencies.
Executive Agency Records – The Public Records Act
Chapter 119, F.S., known as the Public Records Act, provides that all state, county, and
municipal records are open for personal inspection and copying by any person, and that
providing access to public records is a duty of each agency.5
A public record includes virtually any document or recording, regardless of its physical form or
how it may be transmitted.6 The Florida Supreme Court has interpreted the statutory definition of
“public record” to include “material prepared in connection with official agency business which
is intended to perpetuate, communicate, or formalize knowledge of some type.”7
The Florida Statutes specify conditions under which public access to public records must be
provided. The Public Records Act guarantees every person’s right to inspect and copy any public
record at any reasonable time, under reasonable conditions, and under supervision by the
1
FLA. CONST. art. I, s. 24(a).
2
Id.
3
See Rule 1.48, Rules and Manual of the Florida Senate, (2018-2020) and Rule 14.1, Rules of the Florida House of
Representatives, Edition 2, (2018-2020)
4
State v. Wooten, 260 So. 3d 1060 (Fla. 4th DCA 2018).
5
Section 119.01(1), F.S. Section 119.011(2), F.S., defines “agency” as “any state, county, district, authority, or municipal
officer, department, division, board, bureau, commission, or other separate unit of government created or established by law
including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of
Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf
of any public agency.”
6
Section 119.011(12), F.S., defines “public record” to mean “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.”
7
Shevin v. Byron, Harless, Schaffer, Reid and Assoc., Inc., 379 So. 2d 633, 640 (Fla. 1980).
BILL: SPB 7064 Page 3
custodian of the public record.8 A violation of the Public Records Act may result in civil or
criminal liability.9
The Legislature may exempt public records from public access requirements by passing a
general law by a two-thirds vote of both the House and the Senate.10 The exemption must state
with specificity the public necessity justifying the exemption and must be no broader than
necessary to accomplish the stated purpose of the exemption.11
General exemptions from the public records requirements are contained in the Public Records
Act.12 Specific exemptions often are placed in the substantive statutes relating to a particular
agency or program.13
When creating a public records exemption, the Legislature may provide that a record is “exempt”
or “confidential and exempt.” Custodians of records designated as “exempt” are not prohibited
from disclosing the record; rather, the exemption means that the custodian cannot be compelled
to disclose the record.14 Custodians of records designated as “confidential and exempt” may not
disclose the record except under circumstances specifically defined by the Legislature.15
Open Government Sunset Review Act
The Open Government Sunset Review Act16 (the Act) prescribes a legislative review process for
newly created or substantially amended17 public records or open meetings exemptions, with
specified exceptions.18 It requires the automatic repeal of such exemption on October 2nd of the
fifth year after creation or substantial amendment, unless the Legislature reenacts the
exemption.19
The Act provides that a public records or open meetings exemption may be created or
maintained only if it serves an identifiable public purpose and is no broader than is necessary.20
An exemption serves an identifiable purpose if it meets one of the following purposes and the
8
Section 119.07(1)(a), F.S.
9
Section 119.10, F.S. Public records laws are found throughout the Florida Statutes, as are the penalties for violating those
laws.
10
FLA. CONST. art. I, s. 24(c).
11
Id. See, e.g., Halifax Hosp. Medical Center v. News-Journal Corp., 724 So. 2d 567 (Fla. 1999) (holding that a public
meetings exemption was unconstitutional because the statement of public necessity did not define important terms and did
not justify the breadth of the exemption); Baker County Press, Inc. v. Baker County Medical Services, Inc., 870 So. 2d 189
(Fla. 1st DCA 2004) (holding that a statutory provision written to bring another party within an existing public records
exemption is unconstitutional without a public necessity statement).
12
See, e.g., s. 119.071(1)(a), F.S. (exempting from public disclosure examination questions and answer sheets of
examinations administered by a governmental agency for the purpose of licensure).
13
See, e.g., s. 213.053(2)(a), F.S. (exempting from public disclosure information contained in tax returns received by the
Department of Revenue).
14
See Williams v. City of Minneola, 575 So. 2d 683, 687 (Fla. 5th DCA 1991).
15
WFTV, Inc. v. The School Board of Seminole, 874 So. 2d 48 (Fla. 5th DCA 2004).
16
Section 119.15, F.S.
17
An exemption is considered to be substantially amended if it is expanded to include more records or information or to
include meetings as well as records. Section 119.15(4)(b), F.S.
18
Section 119.15(2)(a) and (b), F.S., provide that exemptions that are required by federal law or are applicable solely to the
Legislature or the State Court System are not subject to the Open Government Sunset Review Act.
19
Section 119.15(3), F.S.
20
Section 119.15(6)(b), F.S.
BILL: SPB 7064 Page 4
Legislature finds that the purpose of the exemption outweighs open government policy and
cannot be accomplished without the exemption:
It allows the state or its political subdivisions to effectively and efficiently administer a
governmental program, and administration would be significantly impaired without the
exemption;21
It protects sensitive, personal information, the release of which would be defamatory, cause
unwarranted damage to the good name or reputation of the individual, or would jeopardize
the individual’s safety. If this public purpose is cited as the basis of an exemption, however,
only personal identifying information is exempt;22 or
It protects information of a confidential nature concerning entities, such as trade or business
secrets.23
The Act also requires specified questions to be considered during the review process.24 In
examining an exemption, the Act directs the Legislature to carefully question the purpose and
necessity of reenacting the exemption.
If the exemption is continued and expanded, then a public necessity statement and a two-thirds
vote for passage are required.25 If the exemption is continued without substantive changes or if
the exemption is continued and narrowed, then a public necessity statement and a two-thirds vote
for passage are not required. If the Legislature allows an exemption to sunset, the previously
exempt records will remain exempt unless provided for by law.26
Current Public Records Exemptions for Investigations Conducted by the Department of
Legal Affairs
Florida’s public records laws currently make most information obtained by the Department open
to the public.27 In the absence of a specific legislative exemption, investigative records made or
received by public agencies are open to public inspection pursuant to ch. 119, F.S.28 Further, an
agency’s disclosure of records of its investigative proceedings upon the completion of a
preliminary investigation does not violate an individual’s right of privacy.29
21
Section 119.15(6)(b)1., F.S.
22
Section 119.15(6)(b)2., F.S.
23
Section 119.15(6)(b)3., F.S.
24
Section 119.15(6)(a), F.S. The specified questions are:
What specific records or meetings are affected by the exemption?
Whom does the exemption uniquely affect, as opposed to the general public?
What is the identifiable public purpose or goal of the exemption?
Can the information contained in the records or discussed in the meeting be readily obtained by alternative means?
If so, how?
Is the record or meeting protected by another exemption?
Are there multiple exemptions for the same type of record or meeting that it would be appropriate to merge?
25
See generally s. 119.15, F.S.
26
Section 119.15(7), F.S.
27
See State ex rel. Veale v. City of Boca Raton, 353 So. 2d 1194 (Fla. 4th DCA 1977), cert. denied 360 So. 2d 1247 (Fla.
1978).
28
See State ex rel. Veale v. City of Boca Raton, 353 So.2d 1194 (Fla. 4th DVA 1977), cert. denied, 360 So.2d 1247 (Fla.
1978).
29
See Garner v. Florida Comm’n. on Ethics, 415 So.2d 67 (Fla. 1st DCA 1982), rev. denied, 424 So.2d 761 (Fla. 1983).
BILL: SPB 7064 Page 5
Section 119.071(2), F.S., exempts various records and information from public inspection,
including the following information when held by the DLA:
Complaint and information held pursuant to an investigation of a violation of the Florida
False Claims Act—this information may be disclosed after the completion of the DLA’s
investigation, or as otherwise provided in the exemption.30
Information received pursuant to a notice of a data breach or pursuant to certain investigation
is confidential until the investigation is completed or ceases to be active. Disclosure of this
information is authorized under specific circumstance.31
Criminal or civil intelligence, investigative information, or any other information held by any
state or federal agency that is obtained by the DLA in the course of an investigation under
Part II of Ch. 501, regarding Deceptive and Unfair Trade Practices. If this information is
confidential or exempt from disclosure pursuant to s. 119.07(1), F.S., when held by the
originating agency, it will retain that exemption when obtained by the DLA.32
Florida Privacy Protection Act
SB 1734 creates the Florida Privacy Protection Act (Act). The Act grants consumers specific
rights relating to their personal information, namely (1) the right to opt-out of the sale or sharing
of their personal information, and (2) the right to correct or delete their personal information held
by a business.
Specific businesses must act to accommodate these consumer privacy rights and provide notice
to consumers about their collection and sale of personal information. Additionally, the businesses
cannot discriminate against consumers based on their decision to opt-out of the sale or sharing of
their personal information.
The Act grants the Florida Department of Legal Affairs (DLA) (also known as the Office of the
Attorney General) authority to institute appropriate legal proceedings against businesses that it
believes have violated or are violating the Act.
As created, then, any information obtained by the DLA during an investigation of the Act is
subject to disclosure under ch. 119, F.S. This may present a hurdle to the DLA’s investigation
and enforcement because it will stifle the disclosure of pertinent information from law
enforcement or consumers to the DLA.33 Additionally, the release of consumer personal
information could subject them to identity theft or further harm.
III. Effect of Proposed Changes:
SPB 7064 makes information received by the DLA pursuant to a notification of a violation of
certain statutory requirements or received by the DLA pursuant to an investigation by the DLA
or a law enforcement agency confidential and exempt.
30
Section 68.083(8), F.S.
31
Section 501.171(11), F.S.
32
Section 501.2065, F.S.
33
Florida Department of Law Enforcement, HB 1239 Agency Analysis (Mar. 6, 2019), (on file with the Senate Committee on
Commerce and Tourism).
BILL: SPB 7064 Page 6
During an active investigation, the DLA may disclose confidential and exempt information:
In furtherance of its official duties and responsibilities;
For print, publication, or broadcast if the DLA determines that such release would assist in
notifying the public or locating or identifying a person believed to be a victim of the
improper use or disposal of customer records; or
To another governmental entity in the furtherance of its official duties and responsibilities.
Once an investigation is completed or once an investigation ceases to be active, the following
information received by the DLA will remain confidential and exempt:
All information to which another public record exemption applies;
Personal information;
A computer forensic report;
Information that would otherwise reveal weaknesses in a business’ data security; and
Information that would disclose a business’ proprietary information.
For purposes of this public records exemption, “proprietary information” means information that:
Is owned or controlled by the business
Is intended to be private and treated as such by the business because disclosure would harm
the business or its business operations;
Has not been disclosed except as required by law or a private agreement that provides that
the information will not be released to the public;
Is not publicly available or otherwise readily ascertainable through proper means from
another source in the same configuration as it was received by the DLA; and
Includes trade secrets and competitive interests.
This provision will be subject to an Open Government Sunset Review in accordance with s.
119.15, F.S., and will stand repealed on October 2, 2026, unless reviewed and saved from repeal
through reenactment by the Legislature.
The bill will become effective on the same date that SB 1734 (2021) or similar legislation takes
effect, if such legislation is adopted in the same legislative session or an extension thereof and
becomes law.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
Vote Requirement
Article I, s. 24(c) of the State Constitution requires a two-thirds vote of the members
present and voting for final passage of a bill creating or expanding an exemption to the
public records requirements. This bill creates a new public records exemption, thus the
bill requires an extraordinary vote for enactment.
BILL: SPB 7064 Page 7
Public Necessity Statement
Article I, s. 24(c) of the State Constitution requires a bill creating or expanding an
exemption to the public records requirements to state with specificity the public necessity
justifying the exemption. This bill creates a new public records exemption, thus the bill
contains a statement of public necessity.
Breadth of Exemption
Article I, s. 24(c) of the State Constitution requires an exemption to the public records
requirements to be no broader than necessary to accomplish the stated purpose of the law.
This bill creates a public records exemption for certain information held by the DLA
during its investigations of violations of the Florida Privacy Protection Act, and
maintains the exemption indefinitely for specific personal information and business
information. The exemption does not appear to be broader than necessary to accomplish
the purpose of the law.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
BILL: SPB 7064 Page 8
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 501.177 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2021 (PROPOSED BILL) SPB 7064 Florida Senate - 2021 (PROPOSED BILL) SPB 7064
FOR CONSIDERATION By the Committee on Commerce and Tourism
577-02811-21 20217064pb 577-02811-21 20217064pb
1 A bill to be entitled 30 disclosed by the department:
2 An act relating to public records; amending s. 31 1. In the furtherance of official duties and
3 501.177, F.S.; providing an exemption from public 32 responsibilities;
4 records requirements for information relating to 33 2. For print, publication, or broadcast if the department
5 investigations by the Department of Legal Affairs and 34 determines that such release would assist in notifying the
6 law enforcement agencies of certain data privacy 35 public or locating or identifying a person the department
7 violations; defining the term “proprietary 36 believes to be a victim of improper use or disposal of customer
8 information”; providing for future legislative review 37 records, except that information made confidential and exempt by
9 and repeal of the exemption; providing a statement of 38 paragraph (c) may not be released pursuant to this subparagraph;
10 public necessity; providing a contingent effective 39 or
11 date. 40 3. To another governmental entity in the furtherance of its
12 41 official duties and responsibilities.
13 Be It Enacted by the Legislature of the State of Florida: 42 (c) Upon completion of an investigation or once an
14 43 investigation ceases to be active, all of the following
15 Section 1. Subsection (3) is added to section 501.177, 44 information received by the department remains confidential and
16 Florida Statutes, as created by SB 1734, 2021 Regular Session, 45 exempt from s. 119.07(1) and s. 24(a), Art. I of the State
17 to read: 46 Constitution:
18 501.177 Civil actions; private right of action; Attorney 47 1. All information to which another public records
19 General; rules.— 48 exemption applies.
20 (3)(a) All information received by the department pursuant 49 2. Personal information.
21 to a notification of a violation under this act, or received by 50 3. A computer forensic report.
22 the department pursuant to an investigation by the department or 51 4. Information that would otherwise reveal weaknesses in a
23 a law enforcement agency, is confidential and exempt from s. 52 business’ data security.
24 119.07(1) and s. 24(a), Art. I of the State Constitution until 53 5. Information that would disclose a business’ proprietary
25 such time as the investigation is completed or ceases to be 54 information.
26 active. This exemption shall be construed in conformity with s. 55 (d) For purposes of this subsection, the term “proprietary
27 119.071(2)(c). 56 information”:
28 (b) During an active investigation, information made 57 1. Means information that:
29 confidential and exempt pursuant to paragraph (a) may be 58 a. Is owned or controlled by the business.
Page 1 of 5 Page 2 of 5
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2021 (PROPOSED BILL) SPB 7064 Florida Senate - 2021 (PROPOSED BILL) SPB 7064
577-02811-21 20217064pb 577-02811-21 20217064pb
59 b. Is intended to be private and is treated by the business 88 impair the ability of the department to effectively and
60 as private because disclosure would harm the business or its 89 efficiently administer its duties pursuant to s. 501.177,
61 business operations. 90 Florida Statutes. In addition, release of such information
62 c. Has not been disclosed except as required by law or a 91 before completion of an active investigation could jeopardize
63 private agreement that provides that the information will not be 92 the ongoing investigation.
64 released to the public. 93 (2) The Legislature finds that it is a public necessity to
65 d. Is not publicly available or otherwise readily 94 continue to protect from public disclosure all information to
66 ascertainable through proper means from another source in the 95 which another public record exemption applies once an
67 same configuration as received by the department. 96 investigation is completed or ceases to be active. Release of
68 2. Includes: 97 such information by the department would undo the specific
69 a. Trade secrets as defined in s. 688.002. 98 statutory exemption protecting that information.
70 b. Competitive interests, the disclosure of which would 99 (3) An investigation of a data privacy violation is likely
71 impair the competitive business of the business who is the 100 to result in the gathering of sensitive personal information,
72 subject of the information. 101 including social security numbers, identification numbers, and
73 (e) This subsection is subject to the Open Government 102 personal financial information. Such information could be used
74 Sunset Review Act in accordance with s. 119.15 and shall stand 103 for the purpose of identity theft. In addition, release of such
75 repealed on October 2, 2026, unless reviewed and saved from 104 information could subject possible victims of data privacy
76 repeal through reenactment by the Legislature. 105 violations to further harm.
77 Section 2. The Legislature finds that it is a public 106 (4) Notices received by the department and information
78 necessity that all information received by the Department of 107 received during an investigation of a covered business’
79 Legal Affairs pursuant to a notification of a violation of this 108 violations of this act are likely to contain proprietary
80 act, or received by the department pursuant to an investigation 109 information, including trade secrets, about the security of the
81 by the department or a law enforcement agency, be made 110 system. The release of the proprietary information could result
82 confidential and exempt from s. 119.07(1), Florida Statutes, and 111 in the identification of the system’s vulnerabilities, which
83 s. 24(a), Article I of the State Constitution for the following 112 could ultimately lead to the improper access of personal
84 reasons: 113 information held by the covered business. In addition, a trade
85 (1) A notification of a violation of this act may result in 114 secret derives independent, economic value, actual or potential,
86 an investigation of such violation. The premature release of 115 from being generally unknown to, and not readily ascertainable
87 such information could frustrate or thwart the investigation and 116 by, other persons who might obtain economic value from its
Page 3 of 5 Page 4 of 5
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2021 (PROPOSED BILL) SPB 7064
577-02811-21 20217064pb
117 disclosure or use. Allowing public access to proprietary
118 information, including a trade secret, through a public records
119 request could destroy the value of the proprietary information
120 and cause a financial loss to the business submitting the
121 information. Release of such information could weaken the
122 position of the entity supplying the proprietary information in
123 the marketplace.
124 Section 3. This act shall take effect on the same date that
125 SB 1734 or similar legislation takes effect, if such legislation
126 is adopted in the same legislative session or an extension
127 thereof and becomes a law.
Page 5 of 5
CODING: Words stricken are deletions; words underlined are additions.
THE FLORIDA SENATE COMMITTEES:
Community Affairs, Chair
Tallahassee, Florida 32399-1100 Agriculture, Vice Chair
Appropriations Subcommittee on Agriculture,
Environment, and General Government
Education
Ethics and Elections
Judiciary
SELECT COM ITTEE:
Select Committee on Pandemic
Preparedness and Response
SENATOR JENNIFER BRADLEY JOINT COMMITTEES:
5th District Joint Legislative Auditing Committee
Joint Select Committee on Collective Bargaining
March 2, 2021
Senator Ed Hooper, Chairman
Senate Com ittee on Commerce and Tourism
310 Knott Building
404 South Monroe Street
Tallahassee, Florida 32399-1100
Dear Mr. Chairman:
I respectfully request that Senate Bill 1312 be placed on the committee s agenda at your
earlies convenience. The bill creates a grant program through which the zoo and aquariums can
apply for state funding.
Thank you for your consideration of this request.
Sincerely,
Jennifer Bradley
cc: Todd McKay
Madeline Reeve
REPLY TO:
1279 Kingsley Avenue, Kingsley Center, Suite 117, Orange Park, Florida 32073 (904) 278-2085
324 Senate Building, 404 South Monroe Street, Tallahassee, Florida 32399-1100 (850) 487-5005
Senate s Website: www.flsenate.gov
WILTON SIMPSON AARON BEAN
President of the Senate President Pro Tempore
The Florida Senate
APPEARANCE RECORD
(Deliver BOTH copies of this form to the Senator or Senate Professional Staff conductinB the meeting)
Meetingpate
Bill Number (if applicable)
Amendment Barcode (if applicable)
Name €1 . 0 /
Job Title
Email ( U / .COtA
Speaking: QFor Against Q Information Waive Speaking: 5 In Support Q Against
(The Chair wi!l read this information into the record.)
Representing V
Appearing at request of Chair: Yes No Lobbyist registered with Legislature: Yes No
This form is part of the public record for this me tina
The Florida Senate
APPEARANCE RECORD
(Deliver BOTH copies of this form to the Senator or Senate Professional Staff conducting the eeting)
Bill Number (if applicable)
Amendment Barcode (if applicable)
Job Title
Address .
Street
Email
City State
Speaking: OF r I I Against | | Information Waive Speaking: j j In Support | | Against
(The Chair will read this information into the record.)
Representing
Appearing at request of Chair: Yes No Lobbyist registered with Legislature; F ves o
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is oart of the Dublin r nntri f r this msstinn
YOU MUST PRINT AND DELIVER THIS FOR TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
03/22/2021 APPEARANCE RECORD 1312
Meeting Date Bill Number (if applicable)
Topic Zoological and Aquarium Grant Program Amendment Barcode (if applicable)
Nam© Lia McClay
Job Title Associate VP of Governmental Affairs
Address 3000 NW 83rd St Phone
Street
Gainesville FL 32606 Email liarn.mcclay@sfcollege.edu
State Zip
Speaking Information Waive Speaking: In Support Against
(The Chair will read this information into the record.)
Representing Santa Fe College
Appearing at request of Chair: Yes * lNo Lobbyist registered with Legislature: Yes I No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public record for this meeting. S-001 (10/14/14)
YOU MUST PRINT A D DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROO Reset Form
The Florida Senate
3/22/2021 1312
APPEARANCE RECORD Bill Number (if applicable)
Meeting Date
Tcpie Zool°gica! anci Aquarium Grant P og am Amendment Barcode (if applicable)
Name Me9an FaV
Job Title Lobbyist
Address 124 West Jefferson Street Phone 850-222-9075
Street
Tallahassee FL 32301 Emajl megan@cccfla.com
City State zip
Speaking: ]For Against Information Waive Speaking: In Support Against
(The Chair will read this information into the record.)
Representing Brevard Zo°
Appearing at request of Chair: Yes iNo Lobbyist registered with Legislature: Yes No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
S-001 (10/14/14)
This form is part of the public r cord for this meeting.
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: SB 1312
INTRODUCER: Senator Bradley
SUBJECT: Zoological and Aquarium Grant Program
DATE: March 23, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Reeve McKay CM Fav/CS
2. ATD
3. AP
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
SB 1312 creates a grant program to support zoos and aquariums in Florida accredited by the
Association of Zoos and Aquariums or the Alliance of Marine Mammal Parks and Aquariums, to
be administered by the Department of Economic Opportunity. Grants may be used for capital
expenditures, operational support, and educational, conservation, and research initiatives.
The bill takes effect July 1, 2021.
II. Present Situation:
Fish and Wildlife Conservation Commission
The Fish and Wildlife Conservation Commission (FWC) is responsible for regulating, managing,
protecting, and conserving the state’s fish and wildlife resources. Under Art. IV, s. 9 of the State
Constitution, the FWC is granted the authority to exercise the regulatory and executive powers of
the state with respect to wild animal life, freshwater aquatic life, and marine life.
The FWC issues permits required by Florida law for the possession, exhibition, and sale of
wildlife; commercial and private facilities, including zoos and alligator farms, must have permits
BILL: SB 1312 Page 2
for many types of native and nonnative animals.1 The FWC is also responsible for adopting
caging and housing requirements for wildlife facilities.2
Zoo and Aquarium Accreditation
Several organizations accredit zoos and aquariums in Florida, namely the Association of Zoos
and Aquariums, the Alliance of Marine Mammal Parks and Aquariums, the Zoological
Association of America, and the World Association of Zoos and Aquariums. However, zoos and
aquariums are not required to be accredited by any organization; unaccredited facilities are
typically smaller, privately owned facilities.
Association of Zoos and Aquariums
The Association of Zoos and Aquariums (AZA), a 501(c)3 organization, is an independent
accrediting organization that represents more than 240 zoos and aquariums worldwide. Facilities
wishing to be accredited must meet certain standards for animal welfare, care, and management;
the AZA’s Accreditation Commission also evaluates a facility’s veterinary program,
involvement in conservation and research, education programs, safety policies, finances,
governing authority, and support organizations. AZA-accredited zoos and aquariums must
reapply for accreditation every 5 years.3
There are currently 20 AZA-accredited zoos and aquariums in Florida, including:4
Brevard Zoo, Melbourne;
Busch Gardens Tampa Bay, Tampa;
Central Florida Zoo and Botanical Gardens, Sanford;
Discovery Cove, Orlando;
Disney’s Animal Kingdom, Lake Buena Vista;
Jacksonville Zoo and Gardens, Jacksonville;
Lion Country Safari, Loxahatchee;
Lubee Bat Conservancy, Gainesville;
Mote Marine Laboratory and Aquarium, Sarasota;
Naples Zoo, Naples;
Palm Beach Zoo, West Palm Beach;
Santa Fe College Teaching Zoo, Gainesville;
Sea Life Orlando Aquarium, Orlando;
SeaWorld, Orlando;
St. Augustine Alligator Farm, St. Augustine;
The Florida Aquarium, Tampa;
The Seas, Lake Buena Vista;
White Oak Conservation Center, Yulee;
1
See s. 379.3761, F.S.
2
Fish and Wildlife Conservation Commission, Captive Wildlife, available at https://myfwc.com/license/captive-wildlife/
(last visited Mar. 23, 2021).
3
Association of Zoos and Aquariums, Accreditation Basics, available at https://www.aza.org/becoming-accredited (last
visited Mar. 23, 2021).
4
Association of Zoos and Aquariums, Currently Accredited Zoos and Aquariums, available at https://www.aza.org/current-
accreditation-list?locale=en (last visited Mar. 23, 2021).
BILL: SB 1312 Page 3
Zoo Miami, Miami; and
ZooTampa at Lowry Park, Tampa.
The AZA estimates that Florida’s AZA-accredited zoos and aquariums directly and indirectly
contribute approximately $1.5 billion to Florida’s economy, in addition to supporting over
15,000 jobs.5
Alliance of Marine Mammal Parks and Aquariums
The Alliance of Marine Mammal Parks and Aquariums (AMMPA) is an international accrediting
body for marine parks, aquariums, zoos, and research facilities dedicated to conservation.
Members of the AMMPA must meet certain standards of animal health and wellness, applied
animal behavior, training and enrichment, water and environmental quality, population
sustainability, transportation, scientific research and conservation, and public education.
AMMPA-accredited facilities must demonstrate their ability to meet these requirements every 5
years in order to retain accreditation.6
There are currently 11 AMMPA-accredited facilities in Florida, including:7
Discovery Cove, Orlando;
Disney’s Animal Program at The Seas, Lake Buena Vista;
Dolphin Connection, Duck Key;
Dolphin Research Center, Inc., Grassy Key;
Dolphins Plus Bayside, Key Largo;
Gulf World Marine Park, Panama City Beach;
Gulfarium Marine Adventure Park, Fort Walton Beach;
Marineland Dolphin Adventure, St. Augustine;
Miami Seaquarium, Miami;
SeaWorld, Orlando; and
Theater of the Sea, Islamorada.
III. Effect of Proposed Changes:
The bill creates s. 288.1259, F.S., a grant program to support zoos and aquariums in Florida
accredited by the Association of Zoos and Aquariums or the Alliance of Marine Mammal Parks
and Aquariums. Grants may be used for capital expenditures, operational support, and
educational, conservation, and research initiatives.
The DEO is authorized to adopt rules establishing the grant program’s application requirements,
in addition to a timeline for submission of applications, a timeline for announcing awards, and
5
Association of Zoos and Aquariums, Economic Impact of Spending for Operations and Construction in 2014 by AZA-
Accredited Zoos and Aquariums, available at
https://assets.speakcdn.com/assets/2332/aza_economic_impact_report_2014.pdf (last visited Mar. 23, 2021).
6
Alliance of Marine Mammal Parks and Aquariums, AMMPA Accreditation Standards and Guidelines, available at
https://www.ammpa.org/sites/default/files/files/Resource%20Library/AMMPA-StandardsAndGuidelines-Feb2020.pdf (last
visited Mar. 23, 2021).
7
Alliance of Marine Mammal Parks and Aquariums, Our Members, available at https://www.ammpa.org/about/our-members
(last visited Mar. 23, 2021).
BILL: SB 1312 Page 4
any other procedures necessary to administer the grant program. The DEO has the final approval
authority for the grant program.
The bill takes effect July 1, 2021.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
The state government of Florida is divided into the legislative, executive and judicial
branches. Pursuant to Article II, s. 3 of the State Constitution, “[n]o person belonging to
one branch shall exercise any powers appertaining to either of the other branches unless
expressly provided herein.” Two fundamental prohibitions are contained in the separation
of powers doctrine in Florida. The first is that no branch may encroach upon the powers
of the other; the second is that no branch may delegate to another branch its
constitutionally assigned power.8 Under the nondelegation doctrine, the Legislature “may
not delegate the power to enact a law or the right to exercise unrestricted discretion in
applying the law.”9 The Legislature must promulgate standards sufficient to guide
administrative agencies in the performance of their duties.10
The bill specifies no standards the DEO must use in determining which applicants should
receive grant funds, or how much funding each successful grant applicant should receive.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
8
Chiles v. Children A, B, C, D, E & F, 589 So.2d 260, 266 (Fla.1991).
9
Sloban v. Florida Board of Pharmacy, 982 So.2d 26, 29 (Fla. 1st DCA 2008) (citing Sims v. State, 754 So.2d 657, 668
(2000)).
10
Florida Dep‘t. of State, Div. of Elections v. Martin, 916 So.2d 763 (Fla. 2005).
BILL: SB 1312 Page 5
B. Private Sector Impact:
Grant recipients will incur benefits in the amount of their grant awards.
C. Government Sector Impact:
Indeterminate. The bill does not provide an appropriation for the grant program. The
DEO may incur costs associated with administering the program.
VI. Technical Deficiencies:
None.
VII. Related Issues:
Similar legislation creating grant programs typically specifies that grants are subject to
legislative appropriation.
VIII. Statutes Affected:
This bill creates section 288.1259 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Commerce and Tourism on March 23, 2021:
The committee substitute provides that facilities accredited by the Alliance of Marine
Mammal Parks and Aquariums are eligible for the grant program created by the bill.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 1312
Ì587156@Î587156
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
03/23/2021 .
.
.
.
The Committee on Commerce and Tourism (Bradley) recommended the
following:
1 Senate Amendment
2
3 Delete line 21
4 and insert:
5 Aquariums or the Alliance of Marine Mammal Parks and Aquariums.
6 Grant funds awarded to a facility may be used for
Page 1 of 1
3/18/2021 4:33:06 PM 577-03022-21
Florida Senate - 2021 SB 1312 Florida Senate - 2021 SB 1312
By Senator Bradley
5-01783-21 20211312__ 5-01783-21 20211312__
1 A bill to be entitled 30 made under this section.
2 An act relating to a zoological and aquarium grant 31 Section 2. This act shall take effect July 1, 2021.
3 program; creating s. 288.1259, F.S.; authorizing the
4 Department of Economic Opportunity to establish a
5 grant program for the support of zoos and aquariums
6 located within the state; providing eligibility
7 requirements; authorizing the use of grant funds for
8 certain purposes; requiring the department to adopt
9 rules; providing that the department has final grant
10 approval authority; providing an effective date.
11
12 Be It Enacted by the Legislature of the State of Florida:
13
14 Section 1. Section 288.1259, Florida Statutes, is created
15 to read:
16 288.1259 Zoological and aquarium grant program.—
17 (1) The department is authorized to establish a grant
18 program for the support of zoos and aquariums located within the
19 state. To be eligible for grant funding under this section, the
20 facility must be accredited by the Association of Zoos and
21 Aquariums. Grant funds awarded to a facility may be used for
22 capital expenditures, operational support, and educational,
23 conservation, and research initiatives.
24 (2) The department shall adopt rules establishing grant
25 application requirements, a timeline for submission of grant
26 applications, a timeline for announcement of awards, and any
27 procedures necessary for the prudent administration of the grant
28 program.
29 (3) The department has final approval authority for grants
Page 1 of 2 Page 2 of 2
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
The Florida Senate
Committee Agenda Request
To: Senator Ed Hooper, Chair
Committee on Commerce and Tourism
Subject: Committee Agenda Request
Date: March 15, 2021
I respectfully request that Senate Bill #266, relating to Home-based Businesses, be placed on
the:
committee agenda at your earliest possible convenience.
next committee agenda.
Senator Keith Perry
Florida Senate, District 8
File signed original with committee office S-020 (03/2004)
YOU MUST PRINT AND DELIVER THIS FOR TO THE ASSIGNED TESTIMONY ROOM
Reset Form
The Florida Senate
March 22, 2021
Meeting Date APPEARANCE RECORD 266
Bill Number (if applicable)
Topic
Amendment Barcode (if applicable)
Name Tirn Nungesser
Job Title Legislative Director
Address 110 East Jefferson Street
Street Phone 850-445-5367
Tallahassee FL
City ' 32301 E ail Tim-nungesse @nfib.org
State Zip
Speaking: Against Information
Waiye Speaking: Qin Support EjAgainst
(l he Chair will read this information into the record.)
Representing FIB
Appearing at request of Chair: Dves 0 No Lobbyist registered with Legislature Yes EJno
This form is part of the oublic rennrH fnr thic
The Florida Senate
appearance record
(Deliver BOTH copies of th s form to the Senator or Senate Professionai Staff conducting the meeting) 0< .
Bill Number (if a plicable)
Topic
Amendment Barcode (if applicable)
Name C Hg/S //!
Job Title
Address
Street Phone <3
City Email
State
Speaking: MFor Q Against Information
Waive Speaking: Qin Support QAgainst
(I he Chair will read this information into the record.)
Representing
Appearlns at raqa.st of Chair: O y., No Lobbyist r6Biaered wi,h Logis|atu(e:
This form is pa t of the Dublin re/mrri fn thtc
The Florida Senate
appearance record
6
(Deliver BOTH copies of this form to the Senator or Senate Professional Staff conducting the meeting)
Bill Number (if applicable)
Topic
Amendment Barcode (if applicable)
Name
Job Title
Address
St t Phone. ,
City State
E ail
3P
Speaking: For O Against | | Information Waive
/r • Speakin
.. IhVSupport Against
(The Chair will read th(s info ation into the record,)
Representing o
Appearing at request of Chair: Yes Lobbyist registered with Legi; Yes No
YOU MUST PRINT AND DELIVER THIS FOR TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
Meeting Date
APPEARANCE RECORD
Bill Number (if applicable)
Amendment Barcode (if applicable)
Name Jess M. McCarty
Job Title Assistant County Attorney
Address NW 1st Street
Street Phone 305-979-7110
Miami FL
city State
=
33156 Emaj| jm 2@miamidade.qoy
Speaking: For Against Information
Waive Speaking: | | In Support p] Against
(The Chair will read this information into the record.)
Representing Miami-Dade County
Appearing at request of Chair: nY.. 0No Lobbyist r.glst.rrxl with Legislature: 0Y.s Dno
This fo m is pa t of the public record for this meeting.
The Florida Senate
appearance record
3'X2-,2.< <De"V8r e0TH C°P',S Oi ,hiS ,orm ,0 ,he serator FTofes lona, Staff conducting the meeting)
Meeting Date S O 2
Bill Number (if applicable)
Topic _ hPM€ bJSlrtSS
Name ~~ rW)
Job Title
Address 1_
Street Phone
City Email
Speakmg: Lui For O Against | | Information
Waive Speaking; upport L J Against '
(The Chair will read this Information into the record.)
Representing C V
Appearing at request of Chair; Yes
Lobbyist registered with Legislature: Q Yes
This form ie nm , f ,_> Il&cira.
Thf Fl no . C ThlS lnformation was not read
TE 'nt0 the record bVthe Chair.
/ 1 ,n APPEARANCE record
B0™ C0PiSS 0' S ,Wm ,0 ,he Se"ator Professional Staff Co„d«i„g the meeti„g)
Meeting Date
Bill Number (if applicable)
c -Ayri a 2 050
Amendment Barcode (if applicable)
Name a
Job Title
Address <
Street - Phone -£7)Hoo
City = l =32O __ Emai|
Emai| at,
Zip
s«. ,
Waive Speaking:
R ¦ I ; . j. t e Chair will read this mformation into the record.)
Representing __ OQ Tffe 0
Appearing at request of Chai :
No
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTI ONY Ri This formation was not read
Into the record by the Chair.
The Florida Senate
March 22, 2021 266
APPEARANCE RECORD
Meeting Date Bill Number (if applicable)
203018
Topic Amendment Barcode (if applicable)
Name Nun9esser
Job Title Legislative Director
Address 110 ast Jefferson Street Phone S50-445-5367
Street
Tallahassee FL 32301 Email Tim.nungesser@nfib.org
City State Zip
Speaking: [• For Against Information Waive Speaking: In Support Against
(The Chair will read this information into the record.)
Representing
Appearing at request of Chair: Lobbyist registered with Legislature: Yes No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This fo m is Dart of the oublic record for this m tina. c nni a \
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY I This information was not read
Into the record by the Chair.
The Florida Senate
3/22/2021 APPEARANCE RECORD 266
Meeting Date Bill Number (if applicable)
203018
Topic Home-based Businesses
Amendment Barcode (if applicable)
Name David Cruz
Job Title Legislative Counsel
Address PQ Box 1757 Phone 850-701-3676
Street
Tallahassee FL 32301 Email dcruz@flcities.com
city State Z/p
Speaking: For Against Information Waive Speaking: In Support Against
(The Chair will read this information into the record.)
Representing Florida League of Cities, Inc.
Appearing at request of Chair: Yes No Lobbyist registered with Legislature: Yes No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
This form is part of the public ecord for this meetinq. s-om (10/
This information was not read
The Florida Senate Into t e ecord by the Chair.
APPEARANCE RECORD
(Deliver BOTH copies of this form to the Senator or Senate Professional Staff conducting the meeting)
Bill Number (if applicable)
Topic n Amendment Barcode (if applicable)
Name
Job Title
Address Phone.
Street
Email
City State Z'P /
Speaking: | | For | | Against | | Inform tion Waive Speaking: ln Support pH Against
(The Chair v ll readdhis formation into the record.)
Representing [WA/(
Appear ng at request of Chair: Yes No Lobbyist registered with Le islature: y\[Yes No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: CS/SB 266
INTRODUCER: Community Affairs Committee and Senator Perry and others
SUBJECT: Home-based Businesses
DATE: March 19, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Paglialonga Ryon CA Fav/CS
2. McKay McKay CM Favorable
3. RC
Please see Section IX. for Additional Information:
PLEASE MAKE SELECTION
I. Summary:
CS/SB 266 preempts areas of regulation for home-based businesses to the state and forbids
counties and municipalities from prohibiting, restricting, regulating, or licensing a home-based
business in a manner that is different from other businesses in a local government’s jurisdiction.
By operation of law, state preemption would cause existing local government ordinances in areas
of law restricted by the bill to become null and void.
The bill includes criteria that home-based businesses must meet to operate in an area zoned for
residential use. To be considered a home-based business under the bill’s criteria, a business must
be consistent with a dwelling unit's residential character, subordinate to the use of the dwelling
for residential purposes, require no external modifications that detract from the residential
appearance, and use no equipment or process that creates noise, vibration, heat, smoke, dust,
glare, fumes, odors, or electrical or electronic interference detectable by neighbors.
The bill also include requirements a home-based businesses must comply with to operate in an
area zoned for residential use. Namely, a home-based business may only have two non-resident
employees or independent contractors and involve activities secondary to the property's use as a
residential dwelling. Also, a home-based business must comply with all local regulations related
to parking, hours of operation, and business activities conducted outside of the primary
residential structure, and all relevant local, state, and federal regulations regarding the use,
storage, or disposal of any corrosive, combustible, or other hazardous or flammable materials or
liquids.
BILL: CS/SB 266 Page 2
The bill maintains that a local government may still impose local business taxes under ch. 205,
F.S., and provides that the home-based business state regulations do not supersede any current or
future declaration of condominium adopted pursuant to ch. 718, F.S., cooperative document
adopted pursuant to ch. 719, F.S., or declaration of covenants adopted pursuant to ch. 720, F.S.
These limitations on home-based businesses resemble current home occupation ordinances
imposed by local governments.
The bill takes effect on July 1, 2021.
II. Present Situation:
Home Rule Powers and Preemption
The Florida Constitution
The Florida Constitution establishes and describes the duties, powers, structure, function, and
limitations of government in Florida. Article VIII, section 1 of the Florida Constitution, endows
counties and municipalities the power of self-government or home rule power. Under the home
rule power, local governments have broad authority to exercise the state's sovereign police
powers and legislate on any matter that is not inconsistent with the federal and state constitution
and laws.
Counties
A county without a charter has such power of self-government as provided by general or special
law and may enact county ordinances not inconsistent with general law.1 Counties operating
under county charters have all the powers of local self-government not inconsistent with general
law or with special law approved by a vote of the electors.2 General law authorizes counties “the
power to carry on county government”3 and to “perform any other acts not inconsistent with law,
which acts are in the common interest of the people of the county, and exercise all powers and
privileges not specifically prohibited by law.”4
Municipalities
Municipalities may be established or abolished, and their charters amended by general or special
law. Municipalities have governmental, corporate, and proprietary powers to conduct municipal
government, perform municipal functions, and render municipal services. They may exercise any
of these powers for municipal purposes except as otherwise provided by law.5 Chapter 166, F.S.,
also known as the Municipal Home Rule Powers Act,6 acknowledges these constitutional grants
1
FLA. CONST. art. VIII, s. 1(f).
2
Id. at (g).
3
Section 125.01(1), F.S.
4
Id. at (w).
5
FLA. CONST. art. VIII, s. 2.
6
Section 166.011, F.S.
BILL: CS/SB 266 Page 3
of police powers and better defines municipal powers of self-government.7 Chapter 166, F.S.,
provides municipalities with broad home rule powers to act in a manner not inconsistent with the
Florida Constitution, general and special law, and a charter for the county in which the
municipality is located.8
State Preemption
Although local governments have broad home rule powers, the state legislature may preempt this
self-government power and preclude local governments from exercising legislative authority in
particular areas of law.9 Florida law recognizes two types of preemption: express and implied.
Express preemption requires a specific legislative statement; it cannot be implied or
inferred.10 Express preemption of a field by the Legislature must be accomplished by clear
language stating that intent.11 In cases where the Legislature expressly or specifically preempts
an area, there is no problem with ascertaining what the Legislature intended.12 On the other hand,
implied preemption is found where the local legislation would present the danger of conflicting
with the state's pervasive regulatory scheme.13 Preemption of a local government enactment is
implied only where the legislative scheme is so pervasive as to evidence an intent to preempt the
particular area to the state, and there are strong public policy reasons for doing so.14 In cases
determining the validity of ordinances enacted in the face of express and implied state
preemption, the effect has been to find such ordinances null, void, and unenforceable.15
Community Planning
State police powers are derived from the Tenth Amendment to the U.S. Constitution, which
affords states all rights and powers “not delegated to the United States.”16 Under this provision,
states have police powers to establish and enforce laws protecting the public's welfare, safety,
and health.17 These police powers provide counties and municipalities the authority to enact
comprehensive zoning plans to lay out zones or districts where potential uses of real property
may be forbidden or restricted.18 A local government's ability to regulate and restrict the use of
private property through community planning is not unlimited and must, ultimately, bear a
substantial relation to the public health, safety, morals or general welfare.19
7
Florida House of Representatives, Publications, The Local Government Formation Manual 2017-2018, p. 16, available at:
http://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?PublicationType=Committees&CommitteeId=2911&Ses
sion=2017&DocumentType=General Publications&FileName=2017-2018 Local Government Formation Manual Final
Pub.pdf. (last visited Mar. 19, 2021).
8
Section 166.021(4), F.S.
9
Wolf, The Effectiveness of Home Rule: A Preemptions and Conflict Analysis, 83 Fla. B.J. 92 (June 2009).
10
See City of Hollywood v. Mulligan, 934 So.2d 1238, 1243 (Fla. 2006); Phantom of Clearwater, Inc. v. Pinellas County, 894
So.2d 1011, 1018 (Fla. 2d DCA 2005), approved in Phantom of Brevard, Inc. v. Brevard County, 3 So.3d 309 (Fla. 2008).
11
Mulligan, 934 So.2d at 1243.
12
Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So.3d 880, 886 (Fla. 2010).
13
See GLA & Assocs., Inc. v. City of Boca Raton, 855 So. 2d 278, 282 (Fla. 4th DCA 2003).
14
Id.
15
Thomas v. State, 614 So.2d 468, 470 (Fla.1993); Hillsborough County v. Fla. Rest. Ass'n, 603 So.2d 587, 591 (Fla. 2d
DCA 1992) (“If [a county] has enacted such an inconsistent ordinance, the ordinance must be declared null and void.”)
16
U.S. CONST. amend. X.
17
See NFIB v. Sebelius, 567 U.S. 519, 535-536 (2012).
18
Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S. Ct. 1536 (1974)
19
See State of Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 121 (1928).
BILL: CS/SB 266 Page 4
Section 163.3167, F.S. of the Community Planning Act20 statutorily requires incorporated
municipalities and counties to prepare and maintain a comprehensive plan to set out the
regulations and policies governing land within a community. Comprehensive plans address both
physical elements of land and buildings and the land uses permitted therein. Under s.163.3177,
F.S., comprehensive plans are required to include elements that address the distribution, extent,
and location of various land uses within a community. Some of the statute's land uses include
residential, commercial, industrial, agricultural, recreational, conservation education, public,
historic, and mixed-use categories.21
Residential Use Restrictions
Community zoning plans typically contain two significant distinctions of property use:
residential and commercial. Property zoned for residential use requires residents to use a building
or premises therein as a dwelling.22
Areas zoned for residential use may exclude other nonresidential buildings and uses. Residential
use ordinances allow local governments to deny land uses not customary to a home or dwelling.
Courts have opined that residential land use restrictions serve the public health, safety, morals,
and general welfare by providing an attractive community, lessening congestion, increasing
safety, and preventing overcrowding, among other things.23 Although local governments may use
similar definitions of residential use in an ordinance, counties and municipalities are free to
decide the specific uses or terms allowed for this land.
As a practical matter, residential use restrictions largely exclude property uses that include most
commercial or business operations. Residential use areas are often cordoned off from business
zones to promote the state's interest in preserving the quality of home life for the community and
ensuring residential neighborhoods' safety.24 The traditional purpose for this categorical
separation of residential and business uses has been to prevent unwanted secondary effects of a
business operating in a residential area.25
Home Occupation Ordinances
Although local governments have the authority to discriminate between commercial and
residential land uses, local governments have historically persevered the right for individuals to
use residential dwellings to conduct business for certain activities deemed home occupations.
Home occupation provisions are widely incorporated in residential land use ordinances and are
20
See ch. 163, part II, F.S.
21
Section 163.3177, F.S.
22
Black’s Law Dictionary 505 (6th ed. 1990) (Dwelling is defined as: “The house or other structure in which a person or
persons live; a residence; abode; habitation; the apartment or building, or group of buildings, occupied by a family as a place
of residence. Structure used as place of habitation.”)
23
Flava Works, Inc. v. City of Miami, 800 F.Supp.2d 1182 (S.D. Fla. 2011).
24
Voyeur Dorm, L.C. v. City of Tampa, Fla., 265 F.3d 1232 (11th Cir. 2001).
25
In Village of Euclid, Ohio v. Amber Realty Co., 272 U.S. 365 (1926) (upholding the constitutionality of a broad residential
zoning restriction on all land uses that did not constitute a single-family dwelling), the 1926 Supreme Court describes
numerous secondary effects of allowing businesses to operate in a residential zone and states the benefits of exclusion.
BILL: CS/SB 266 Page 5
considered an accessory use26 to a residential property. The overarching premise of home
occupation provisions is that residents may use a dwelling for business activities secondary to
residential uses and don't disturb the residential character of the property. There is no enumerated
right to or precise definition of a home occupation in Florida law. Local governments have the
home rule power to include home occupation provisions in land use ordinances and define the
provision as they see fit.
Current home occupation ordinances vary on the types of businesses allowed, the activities
authorized, and the permitting and taxes imposed. Common home occupation regulation areas
include residential character requirements, licensing/permitting/certification, permitted home
occupations, prohibited home occupations, signage, employees, traffic and parking, storage and
sale of merchandise, and floor area used for the home occupation.
The following excerpts are examples of local government ordinances addressing the common
areas of home occupation regulation:
Jacksonville limits home occupations to small-scale, limited businesses that do not detract
from the residential character of the neighborhood, and limits the floor area that may be used
by the home occupation.27
Orlando requires home occupations to obtain an occupational license, and the applicant must
also submit detailed information relating to the physical space of the home.28 Orlando also
prohibits certain specified occupations.29
Miami limits home occupations to specified occupations, and occupations that do not
generate high vehicular demand.30
Miami-Dade County prohibits on-site signage related to the home occupation.31
Winter Park prohibits employees other than family members living in the house, and
prohibits the use of accessory buildings.32
Clearwater requires traffic generated by the home occupation to be no greater in volume than
regular residential traffic, limits the use of commercial vehicles, and prohibits parking by
marked vehicles on the property.33
Tampa prohibits the storage or sale of merchandise, and prohibits the conduct of a home-
based business in any accessory building;34
Volusia County limits home-based businesses to no more than 25 percent of the habitable
floor area of the residence.35
26
Black’s Law Dictionary 15 (6th ed. 1990) (accessory use is “a use which is dependent on or pertains to principal or main
use; a use which is subordinate to, clearly incidental to, customary in connection with, and ordinarily located on same lot
with, principle use”).
27
Jacksonville, FL., Sec. 656.369(c)(1).
28
Orlando, FL., Sec. 58.941.
29
Orlando, FL., Sec. 58.939.
30
Miami, FL., Sec. 622.7.2.
31
Miami-Dade County, FL., Sec. 33-25.1(A)4.
32
Winter Park, FL., Sec. 58-71(5).
33
Clearwater, FL., Sec. 3-1102.A.5 – 7.
34
Tampa, FL., Ch. 27, art. VI, div. 2, s. 27-282.5.
35
Volusia County, FL., Ch. 72, art. II, div. 8, s. 72-283.
BILL: CS/SB 266 Page 6
Naples prohibits the conduct of retail, wholesale, or warehousing activities at a home-based
business.36
Gainesville limits a home-based business to no more than one automobile used for the home-
based business parked on the premises within view of surrounding properties, and limits the
amount and size of the signage on that automobile.37
Another common component of home occupation ordinances is the method of enforcing these
restrictions. Typically, local government code enforcement divisions are tasked with the
enforcement of home occupation ordinances. Other community residents may report violations to
a code enforcement officer, who usually provides the violator with a warning about the behavior.
If the restricted behavior continues, local governments have the authority to issue a civil
infraction or penalty that the violator may contest in court. Repeated refusal to cease code
violations could result in a local government issuing misdemeanor fines as described in s.
775.083, F.S.
Florida Business Address
To establish a formal business organization in Florida, an individual must file specific paperwork
with the Florida Department of State, Division of Corporations. Regardless of the corporate
business structure, Florida law requires that the business provide the street address of its
principal place of business, register agent, and persons owning the business.38 Residential
property may be used as a principal place of business for these corporate filings. It is unclear
how using a residential home address as a principal place of business for state corporate filings is
interpreted in the context of home occupation ordinances.
III. Effect of Proposed Changes:
The bill creates s. 559.955, F.S., to preempt areas of regulation for home-based businesses to the
state. The bill forbids counties and municipalities from prohibiting, restricting, regulating, or
licensing a home-based business in a manner that is different from other businesses in a local
government’s jurisdiction. By operation of law, state preemption would cause existing local
government ordinances in areas of law restricted by the bill to become null and void.
To be considered a home-based business under the bill, a business must meet the following:
Be consistent with a dwelling unit's residential character.
Be subordinate to the use of the dwelling for residential purposes.
Require no external modifications that detract from the residential appearance.
Use no equipment or process that creates noise, vibration, heat, smoke, dust, glare, fumes,
odors, or electrical or electronic interference detectable by neighbors.
Additionally, a home-based business must meet the following requirements:
May only have two non-resident employees or independent contractors.
May only involve activities secondary to the property's use as a residential dwelling.
36
Naples, FL., Ch. 56, art. III, s. 56-92.
37
Gainesville, FL., Ch. 30, art. V, div. 2, s. 30-5.37.
38
See s. 605.0201, F.S. (limited liability company); s. 607.0202, F.S. (corporation); s. 620.1111, F.S. (partnership).
BILL: CS/SB 266 Page 7
Comply with all state and local parking regulations.
Comply with local regulations for hours of operation and business activities conducted
outside of the primary residential structure.
Comply with all relevant local, state, and federal regulations regarding the use, storage, or
disposal of any corrosive, combustible, or other hazardous or flammable materials or liquids.
The bill clarifies that local governments may still impose local business taxes on home-based
businesses under ch. 205, F.S. The bill also provides that the home-based business state
regulations do not supersede any current or future declaration of condominium adopted pursuant
to chapter 718, cooperative document adopted pursuant to chapter 719, or declaration of
covenants adopted pursuant to chapter 720.
The bill takes effect on July 1, 2021.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
Restricting the number and types of persons allowed to engage in otherwise legal
activities39 conducted wholly within the confines of a private dwelling may
unconstitutionally infringe on an individual's freedom of association40 and right to
39
See Henry v. Board of County Com’rs of Putnam County, 509 So.2d 1221 (Fla. 5th DCA 1987)(describing that there is a
considerable distinction between regulating the use of land and prohibiting the advertising for, and business use of, telephone
located on residential property); see also Coca-Cola Co., Food Division, Polk County v. State, Dept. of Citrus, 406 So.2d
1079 (Fla.1981)(wherein the Florida Supreme Court discussed first amendment protection of commercial speech).
40
“Our decisions establish that the First and Fourteenth Amendments protect the freedom to choose one's associates.
Constitutional protection is extended, not only to modes of association that are political in the usual sense, but also to those
that pertain to the social and economic benefit of the members… The freedom of association is often inextricably entwined
with the constitutionally guaranteed right of privacy. The right to establish a home is an essential part of the liberty
guaranteed by the Fourteenth Amendment. And the Constitution secures to an individual a freedom to satisfy his intellectual
and emotional needs in the privacy of his own home.” See Village of Belle Terre v. Boraas, 416 U.S. 1, 15 (1974)(Justice
Marshall, dissenting; quotations and citations omitted).
BILL: CS/SB 266 Page 8
privacy.41 If these fundamental rights are implicated, the judiciary may require the State
to demonstrate that limiting the number and types of persons allowed to work at a home-
based business serves a compelling State interest and accomplishes its goals through the
use of the least intrusive means.42
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
For small and family-owned businesses that operate in a local government jurisdiction
with a more severe restriction on home occupations, the bill may provide a net positive
fiscal impact by allowing these businesses to avoid the costs associated with commercial
property. Notwithstanding, this positive fiscal impact may be negatively correlated to the
market demand for small-scale commercial real estate.
C. Government Sector Impact:
The bill may have a negative fiscal impact on local governments that charge fees related
to home occupations.
VI. Technical Deficiencies:
The term “only” on line 68 should be removed for clarity.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill creates the following section 559.955 of the Florida Statutes.
41
Courts have long recognized that the boundaries of a home create a constitutionally protected zone of privacy. See
Griswold v. Connecticut, 381 U.S. 479, 484 (1965). The Florida Constitution contains an explicit right to privacy which
affords Florida citizens greater protection in the area of privacy than does the federal Constitution. See State v. J.P., 907
So.2d 1101, 1115 (Fla. 2004).
42
See State v. J.P., at 1109. See also Winfield v. Div. of Pari–Mutuel Wagering, 477 So.2d 544 (Fla.1985)(explaining that
where law intrudes on fundamental right to privacy guaranteed in Florida's Constitution, the State must demonstrate that the
challenged regulation serves a compelling state interest and accomplishes its goal through the use of the least intrusive
means).
BILL: CS/SB 266 Page 9
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Community Affairs on March 10, 2021:
The committee substitute revises the criteria and requirements a business must meet to be
considered a home-based business and allowed to operate in a residential zone. The
committee substitute retains the bill's core elements but makes several technical and
substantive changes to provide more detailed and precise descriptions of home-based
business restrictions.
It also clarifies that the bill’s regulations do not supersede any current or future
declaration of condominium adopted pursuant to ch. 718, F.S., cooperative document
adopted pursuant to ch. 719, F.S., or declaration of covenants adopted pursuant to ch.
720, F.S.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. CS for SB 266
Ì203018|Î203018
LEGISLATIVE ACTION
Senate . House
Comm: FC .
03/23/2021 .
.
.
.
The Committee on Commerce and Tourism (Perry) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete lines 33 - 78
4 and insert:
5 1. The business is subordinate to the use of the dwelling
6 unit for residential purposes and requires no external
7 modifications that detract from the residential appearance of
8 the dwelling unit and that are visible from the street or
9 neighboring properties; and
10 2. The business uses no equipment or process that creates
Page 1 of 4
3/19/2021 4:11:00 PM 577-03089-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. CS for SB 266
Ì203018|Î203018
11 noise, vibration, heat, smoke, dust, glare, fumes, or odors that
12 can be observed from the street and without the aid of detection
13 equipment.
14 (b) A home-based business must meet all of the following
15 requirements:
16 1. The employees of the home-based business who work at the
17 residential dwelling must also reside in the residential
18 dwelling, except that up to a total of two employees or
19 independent contractors who do not reside at the residential
20 dwelling may work at the business.
21 2. Traffic and parking generated by the business may not be
22 any greater in volume than the volume that would normally be
23 expected at a similar residence where no business is conducted.
24 Local governments may regulate the use of vehicles operated or
25 parked at the businesses or on a street right-of-way, provided
26 that the regulations are no more stringent than regulations for
27 a residence where no business is conducted.
28 3. Business activities related to hours of operation and
29 business activities conducted outside of the primary residential
30 structure, including exterior signage displays or exterior
31 storage, must comply with all local regulations. However, local
32 governments may not restrict hours of operation between 8 a.m.
33 and 8 p.m.
34 4. The activities of the home-based business must be
35 secondary to the property’s use as a residential dwelling.
36 5. All home-based business activities must comply with any
37 relevant local, state, and federal regulations with respect to
38 the use, storage, or disposal of any corrosive, combustible, or
39 other hazardous or flammable materials or liquids. Any local
Page 2 of 4
3/19/2021 4:11:00 PM 577-03089-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. CS for SB 266
Ì203018|Î203018
40 regulations on the business relating to the use, storage, or
41 disposal of such materials or liquids may not be more stringent
42 than regulations for a residence where no business is conducted.
43 (3) A home-based business that operates from a residential
44 property as provided in subsection (2):
45 (a) May operate in an area zoned for residential use;
46 (b) May not be prohibited, restricted, regulated, or
47 licensed in a manner that is different from other businesses in
48 a local government’s jurisdiction; and
49 (c) Is only subject to applicable business taxes under
50 chapter 205 in the county and municipality in which the home-
51 based business is located.
52 (4) Local governments may not enact or enforce any
53 ordinance, regulation, or policy, or take any action to
54 otherwise regulate a home-based business, other than as provided
55 in this section.
56 (5) This section does not supersede any current or future
57 declaration of condominium adopted pursuant to chapter 718,
58 cooperative document adopted pursuant to chapter 719, or
59 declaration of covenants adopted pursuant to chapter 720.
60 (6)(a) This section does not prohibit local governments
61 from enacting or enforcing noise ordinances, provided that such
62 ordinances are not more stringent for home-based businesses than
63 for residences where no business is conducted.
64 (b) This section does not prohibit local governments from
65 enacting or enforcing ordinances regulating the parking or
66 storage of heavy equipment that can be viewed from the street.
67 For purposes of this paragraph, the term “heavy equipment” does
68 not include passenger vehicles.
Page 3 of 4
3/19/2021 4:11:00 PM 577-03089-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. CS for SB 266
Ì203018|Î203018
69
70 ================= T I T L E A M E N D M E N T ================
71 And the title is amended as follows:
72 Delete line 6
73 and insert:
74 requirements for home-based businesses; providing
75 requirements and prohibitions relating to local
76 government regulations affecting home-based
77 businesses; authorizing a
Page 4 of 4
3/19/2021 4:11:00 PM 577-03089-21
Florida Senate - 2021 CS for SB 266 Florida Senate - 2021 CS for SB 266
By the Committee on Community Affairs; and Senators Perry and
Baxley
578-02661-21 2021266c1 578-02661-21 2021266c1
1 A bill to be entitled 30 consistent with residential use.
2 An act relating to home-based businesses; creating s. 31 (2)(a) For purposes of this section, a business is
3 559.955, F.S.; providing legislative findings and 32 considered a home-based business if:
4 intent; specifying conditions under which a business 33 1. The business is consistent with the residential
5 is considered a home-based business; providing 34 character of the dwelling unit;
6 requirements for home-based businesses; authorizing a 35 2. The business is subordinate to the use of the dwelling
7 home-based business to operate in a residential zone 36 unit for residential purposes and requires no external
8 under certain circumstances; specifying that home- 37 modifications that detract from the residential appearance of
9 based businesses are subject to certain business 38 the dwelling unit; and
10 taxes; prohibiting a local government from taking 39 3. The business uses no equipment or process that creates
11 certain actions relating to home-based businesses; 40 noise, vibration, heat, smoke, dust, glare, fumes, odors, or
12 providing construction; providing an effective date. 41 electrical or electronic interference detectable by neighbors.
13 42 (b) A home-based business must meet all of the following
14 Be It Enacted by the Legislature of the State of Florida: 43 requirements:
15 44 1. The employees of the home-based business who work at the
16 Section 1. Section 559.955, Florida Statutes, is created to 45 residential dwelling must also reside in the residential
17 read: 46 dwelling, except that up to a total of two employees or
18 559.955 Home-based businesses; legislative findings and 47 independent contractors who do not reside at the residential
19 intent; preemption.— 48 dwelling may work at the business.
20 (1) It is the intent of the Legislature to encourage small 49 2. Parking related to the business activities of the home-
21 and home-based business enterprises. To that end, the 50 based business must comply with all local or state parking
22 Legislature finds that: 51 regulations.
23 (a) Small and home-based businesses are a critical part of 52 3. Business activities related to hours of operation and
24 the economy of this state and provide unique and valuable 53 business activities conducted outside of the primary residential
25 benefits to the communities in which they are located. 54 structure, including exterior signage displays or exterior
26 (b) Residential property is often the most valuable asset 55 storage, must comply with all local regulations.
27 owned by a potential small business entrepreneur. 56 4. The activities of the home-based business must be
28 (c) Residential property can be put to beneficial use by 57 secondary to the property’s use as a residential dwelling.
29 potential small business entrepreneurs in ways that are 58 5. All home-based business activities must comply with any
Page 1 of 3 Page 2 of 3
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2021 CS for SB 266
578-02661-21 2021266c1
59 relevant local, state, and federal regulations with respect to
60 the use, storage, or disposal of any corrosive, combustible, or
61 other hazardous or flammable materials or liquids.
62 (3) A home-based business that operates from a residential
63 property as provided in subsection (2):
64 (a) May operate in an area zoned for residential use;
65 (b) May not be prohibited, restricted, regulated, or
66 licensed in a manner that is different from other businesses in
67 a local government’s jurisdiction; and
68 (c) Is only subject to applicable business taxes under
69 chapter 205 in the county and municipality in which the home-
70 based business is located.
71 (4) Local governments may not enact or enforce any
72 ordinance, regulation, or policy, or take any action to
73 otherwise regulate a home-based business, other than as provided
74 in this section.
75 (5) This section does not supersede any current or future
76 declaration of condominium adopted pursuant to chapter 718,
77 cooperative document adopted pursuant to chapter 719, or
78 declaration of covenants adopted pursuant to chapter 720.
79 Section 2. This act shall take effect July 1, 2021.
Page 3 of 3
CODING: Words stricken are deletions; words underlined are additions.
YOU MUST PRINT AND DELIVER THIS FOR TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
3/22/2021 APPEARANCE RECORD SB 1140
Bill Number (if applicable)
Meeting Date
- Opjc SB 1140 - Unlawful Use of DNA Amendment Barcode (if applicable)
Name Ritchie Engelhardt
job i-jtie Director of Government Affairs
Address ll9 S- Monroe St, Suite 200 Phone 850-205-9000
Street
TLH FL 32301 Email rengelhardt@ancestry.com
City State Z/p
Against Information Waive Speaking: In Support Against
Speaking: |» (The Chair will read this information into the record.)
Representing Ancestry.com
Appearing at request of Chair: Yes No Lobbyist registered with Legislature:
While it is a Senate tradition to encourage public testimony, time may not permit ail persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: SB 1140
INTRODUCER: Senators Rodrigues and Garcia
SUBJECT: Unlawful Use of DNA
DATE: March 19, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Looke Brown HP Favorable
2. McMillan McKay CM Favorable
3. RC
I. Summary:
SB 1140 establishes three new crimes related to the unlawful use of deoxyribose nucleic acid
(DNA). The bill provides that:
It is a first degree misdemeanor for a person to willfully, and without authorization, collect or
retain another person’s DNA sample with the intent to perform DNA analysis.
It is a third degree felony for a person to willfully, and without authorization, submit another
person’s DNA sample for DNA analysis or to conduct or procure the conducting of another
person’s DNA analysis.
It is a third degree felony for a person to willfully, and without authorization, disclose
another person’s DNA analysis results to a third party.
The bill specifies that each instance of the above crimes constitutes a separate violation which
entails a separate penalty. The bill defines the terms “authorization,” “DNA analysis,” and “DNA
sample” and provides exceptions for criminal investigations and prosecutions, determining
paternity under ss. 409.256 or 742.12(1), F.S., and performing any activity authorized in s.
943.325, F.S., pertaining to the criminal DNA database.
The bill also amends s. 760.40, F.S., which is the current law governing DNA privacy, to
conform to the changes made by the bill.
The Legislature’s Office of Economic and Demographic Research (EDR) estimates that the bill
will have a “positive insignificant” prison bed impact (an increase in 10 or fewer prison beds).
See Section V. Fiscal Impact Statement.
The bill provides an effective date of October 1, 2021.
BILL: SB 1140 Page 2
II. Present Situation:
DNA
DNA, or deoxyribose nucleic acid, is the hereditary material in humans and almost all other
organisms. Nearly every cell in a person’s body has the same DNA, unique to that person. Most
DNA is located in the cell nucleus (where it is called nuclear DNA), but a small amount of DNA
can also be found in the mitochondria (where it is called mitochondrial DNA or mtDNA).
Mitochondria are structures within cells that convert the energy from food into a form that cells
can use.
The information in DNA is stored as a code made up of four chemical bases: adenine (A),
guanine (G), cytosine (C), and thymine (T). Human DNA consists of about three billion bases,
and more than 99 percent of those bases are the same in all people. The order, or sequence, of
these bases determines the information available for building and maintaining an organism,
similar to the way in which letters of the alphabet appear in a certain order to form words and
sentences.
DNA bases pair-up with each other, A with T and C with G, to form units called base pairs. Each
base is also attached to a sugar molecule and a phosphate molecule. Together, a base, sugar, and
phosphate are called a nucleotide. Nucleotides are arranged in two long strands that form a spiral
called a double helix. The structure of the double helix is somewhat like a ladder, with the base
pairs forming the ladder’s rungs and the sugar and phosphate molecules forming the vertical
sidepieces of the ladder.
An important property of DNA is that it can replicate, or make copies of itself. Each strand of
DNA in the double helix can serve as a pattern for duplicating the sequence of bases. This is
critical when cells divide because each new cell needs to have an exact copy of the DNA present
in the old cell.1
Genetics and Genomics
Genetics is a term that refers to the study of genes and their roles in inheritance. In other words,
it is the way that certain traits or conditions are passed down from one generation to another.
Genetics involves the scientific study of genes and their effects. Genes (units of heredity) carry
the instructions for making proteins, which direct the activities of cells and functions of the body.
Examples of genetic or inherited disorders include cystic fibrosis, Huntington's disease, and
phenylketonuria.
Genomics is a more recent term that describes the study of all of a person's genes (the genome),
including interactions of those genes with each other and with the person's environment.
Genomics includes the scientific study of complex diseases such as heart disease, asthma,
diabetes, and cancer because these diseases are typically caused by a combination of genetic and
1
MedlinePlus, What is DNA?, available at https://medlineplus.gov/genetics/understanding/basics/dna/, (last visited March
19, 2021).
BILL: SB 1140 Page 3
environmental factors rather than by individual genes. Genomics is offering new possibilities for
therapies and treatments for some complex diseases, as well as new diagnostic methods.2
Genetic Testing
Genetic testing is a type of medical test that identifies changes in chromosomes, genes, or
proteins. The results of a genetic test can confirm or rule out a suspected genetic condition, as
well as help determine the chance of developing or passing on a genetic disorder. More than
1,000 genetic tests are currently in use, and more are being developed. The following methods
can be used for genetic testing:
Molecular genetic tests (or gene tests) study single genes or short lengths of DNA to identify
variations or mutations that lead to a genetic disorder;
Chromosomal genetic tests analyze whole chromosomes or long lengths of DNA to see if
there are large genetic changes, such as an extra copy of a chromosome, that cause a genetic
condition; and
Biochemical genetic tests study the amount or activity level of proteins; abnormalities in
either can indicate changes to the DNA that result in a genetic disorder.3
Direct-to-Consumer Genetic Testing
In recent years, direct-to-consumer (DTC) genetic testing options have become widely available
online and in stores. A DTC genetic test kit allows a person to spit into a tube or swab the inside
of his or her mouth to obtain DNA, mail the sample off, and receive an analysis. According to an
October 2020 Consumer Reports survey, about one in five Americans has taken a DTC genetic
test.4 Some of the most common brands, such as 23andMe and Ancestry, offer a variety of
information, including matching a person with unknown relatives, determining what country a
person’s ancestors are from, revealing a person’s risk of having certain illnesses, and even
suggesting what diet is best.5 However, in addition to potentially useful insights, the tests can
reveal information a person may prefer not to know, and once a person’s genetic data is shared, it
can potentially be sold or used to discriminate against him or her.6 The U.S. Food and Drug
Administration (FDA) reviews some DTC genetic tests, but in general, the FDA does not review
tests intended for non-medical, general wellness, or low risk medical purposes or to help a
person explore his or her ancestry.7
2
Genetics vs. Genomics Fact Sheet, National Human Genome Research Institute, available at
https://www.genome.gov/about-genomics/fact-sheets/Genetics-vs-Genomics, (last visited March 19, 2021).
3
What is Genetic Testing?, MedlinePlus, available at https://medlineplus.gov/genetics/understanding/testing/genetictesting/,
(last visited Mar. 5, 2021).
4
Catherine Roberts, Read This Before You Buy a Genetic Testing Kit, Consumer Reports, (Feb. 2, 2021)
https://www.consumerreports.org/genetic-testing/genetic-testing-kit-read-this-before-you-buy/ (last visited March 19, 2021).
5
Id.
6
Id.
7
FDA, Direct-to-Consumer Test, (Dec. 12, 2019) https://www.fda.gov/medical-devices/vitro-diagnostics/direct-consumer-
tests#list (last visited March 19, 2021).
BILL: SB 1140 Page 4
Surreptitious Genetic Testing
Surreptitious genetic testing is testing without the knowledge of the person being tested, and
creates a potential threat to the privacy of that person’s genomic information.8 Some companies
offering DNA testing allow consumers to obtain genetic analyses of various biological samples
without requiring the consent of the individual or individuals being tested.9 A variety of tests can
be done using these DNA samples, including health-related testing and parentage
determination.10
There is no federal law prohibiting surreptitious testing. Currently about half of the states in the
U.S. have laws or regulations governing genomic privacy and illegitimate uses of genomic
data.11 However, there is great variation in these laws. While some states prohibit the
unauthorized acquisition or analysis of genetic information, others prohibit only unauthorized
disclosure.12 They also differ regarding the enforcement of these laws.13
Florida’s DNA Privacy Law
Except for purposes of criminal prosecution, for purposes of determining paternity,14 and for
purposes of acquiring specimens,15 s. 760.40, F.S., requires DNA analysis16 to be performed only
with informed consent. Results of a DNA analysis, whether held by a public or private entity, are
the exclusive property of the person tested, are confidential, and may not be disclosed without
the consent of the person tested.17 The information is also exempt from public records laws if
held by a public entity.18 A violation of the above requirements is a misdemeanor of the third
degree.19 Section 760.40, F.S., also requires that a person who performs DNA analysis or
receives records, results, or findings of a DNA analysis must provide the person tested with
notice20 that the analysis was performed or that the information was received.21
8
See American Medical Association Journal of Ethics, Shedding Privacy Along with our Genetic Material: What Constitutes
Adequate Legal Protection Against Surreptitious Genetic Testing? (March of 2016), available at https://journalofethics.ama-
assn.org/sites/journalofethics.ama-assn.org/files/2018-05/pfor2-1603.pdf (last visited March 19, 2021).
9
Privacy in Genomics, National Human Genome Research Institute, available at https://www.genome.gov/about-
genomics/policy-issues/Privacy, (last visited March 19, 2021).
10
Id.
11
For details on state laws regulating DNA usage available at https://www.genome.gov/about-genomics/policy-
issues/Genome-Statute-Legislation-Database, (last visited March 19, 2021).
12
Privacy in Genomics, National Human Genome Research Institute, available at https://www.genome.gov/about-
genomics/policy-issues/Privacy, (last visited March 19, 2021).
13
Id.
14
See ss. 409.256, F.S., and 742.12(1), F.S.
15
See s. 943.325, F.S.
16
Defined as “the medical and biological examination and analysis of a person to identify the presence and composition of
genes in that person's body. The term includes DNA typing and genetic testing.”
17
See s. 760.40, F.S.
18
Id.
19
Id. Punishable as provided in ss. 775.082 or 775.083, F.S.
20
The bill provides that the notice must state that upon the request of the person tested, the information will be made
available to his or her physician, state whether the information was used in any decision to grant or deny any insurance,
employment, mortgage, loan, credit, or educational opportunity. Also, if the information was used in any decision that
resulted in a denial, the analysis must be repeated to verify the accuracy of the first analysis, and if the first analysis is found
to be inaccurate, the denial must be reviewed.
21
See s. 760.40, F.S.
BILL: SB 1140 Page 5
III. Effect of Proposed Changes:
The bill creates s. 817.5655, F.S., to prohibit certain unlawful uses of DNA. The bill defines the
following terms:
“Authorization” to mean the informed and written consent of the person whose DNA is to be
extracted or analyzed, or the informed and written consent of the person’s legal guardian or
authorized representative;
“DNA analysis” to mean the medical and biological examination and analysis of a person to
identify the presence and composition of genes in that person’s body, which includes DNA
typing and genetic testing; and
“DNA sample” to mean any human biological specimen from which DNA can be extracted,
or the DNA extracted from such specimen.
The bill establishes three new crimes as follows:
It is a misdemeanor of the first degree22 for a person to willfully, and without authorization,
collect or retain another person’s DNA sample with the intent to perform DNA analysis;
It is a felony of the third degree23 for a person to willfully, and without authorization, submit
another person’s DNA sample for DNA analysis or to conduct or procure the conducting of
another person’s DNA analysis; and
It is a felony of the third24 degree for a person to willfully, and without authorization,
disclose another person’s DNA analysis results to a third party.
The bill specifies that each instance of collection, retention, submission, analysis, or disclosure
constitutes a separate violation for which a separate penalty is authorized. The bill provides
exceptions to the prohibitions established in the bill for the following:
A criminal investigation or prosecution;
Determining paternity under s. 409.256, F.S., or s. 742.12(1), F.S.; and
Performing any activity authorized under s. 943.325, F.S., related to Florida’s criminal DNA
database.
The bill amends s. 760.40, F.S., to conform provisions to changes made by the bill.
The bill provides an effective date of October 1, 2021.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
The bill creates new criminal offenses relating to the unlawful use of DNA. Criminal
laws are exempt from the requirements of Art. VII, s. 18(d) of the Florida Constitution,
relating to unfunded mandates.
22
See ss. 775.082 and 775.083, F.S.
23
See ss. 775.082, 775.083, and 775.084, F.S.
24
Id.
BILL: SB 1140 Page 6
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None Identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
The Legislature’s Office of Economic and Demographic Research (EDR) estimates that
the bill will have a “positive insignificant” prison bed impact (an increase in 10 or fewer
prison beds).25
VI. Technical Deficiencies:
None.
VII. Related Issues:
The bill defines the term “authorization” to mean the informed and written consent of the person
whose DNA is to be extracted or analyzed, or the informed and written consent of the person’s
legal guardian or authorized representative. However, the bill does not specify what information
must be given to a person in order for that person to be informed before providing written
consent. Given that the failure to provide adequate information to the person who is providing
written consent may constitute a criminal act, it may be advisable to specify what information
must be given to a person prior to that person providing his or her consent.
25
See Office of Economic & Demographic Research, Complete 2021 Conference Results, available at
http://edr.state.fl.us/content/conferences/criminaljusticeimpact/index.cfm (last visited March 19, 2021).
BILL: SB 1140 Page 7
The bill prohibits a person from willfully, and without authorization, disclosing another person’s
DNA analysis results to a third party. Given the broad nature of this crime and the specific
requirements for obtaining authorization established by the bill, it may be possible for a person to
commit this crime unintentionally. For example, it is possible that a husband may have violated
this section by disclosing his wife’s DNA analysis results to their children even if the husband
had his wife’s prior authorization by spoken word.
VIII. Statutes Affected:
The bill substantially amends section 760.40 of the Florida Statutes.
The bill creates section 817.5655 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2021 SB 1140 Florida Senate - 2021 SB 1140
By Senator Rodrigues
27-01195A-21 20211140__ 27-01195A-21 20211140__
1 A bill to be entitled 30 exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I
2 An act relating to unlawful use of DNA; amending s. 31 of the State Constitution.
3 760.40, F.S.; prohibiting DNA analysis and disclosure 32 (b) A person who violates paragraph (a) is guilty of a
4 of DNA analysis results without authorization; 33 misdemeanor of the first degree, punishable as provided in s.
5 removing criminal penalties; creating s. 817.5655, 34 775.082 or s. 775.083.
6 F.S.; defining terms; prohibiting the collection or 35 Section 2. Section 817.5655, Florida Statutes, is created
7 retention of a DNA sample of another person without 36 to read:
8 authorization for specified purposes; prohibiting 37 817.5655 Unlawful use of DNA; penalties; exceptions.—
9 specified DNA analysis and disclosure of DNA analysis 38 (1) As used in this section, the term:
10 results without authorization; providing criminal 39 (a) “Authorization” means the informed and written consent
11 penalties; providing exceptions; providing an 40 of the person whose DNA is to be extracted or analyzed, or the
12 effective date. 41 informed and written consent of the person’s legal guardian or
13 42 authorized representative.
14 Be It Enacted by the Legislature of the State of Florida: 43 (b) “DNA analysis” means the medical and biological
15 44 examination and analysis of a person to identify the presence
16 Section 1. Subsection (2) of section 760.40, Florida 45 and composition of genes in that person’s body. The term
17 Statutes, is amended to read: 46 includes DNA typing and genetic testing.
18 760.40 Genetic testing; authorization informed consent; 47 (c) “DNA sample” means any human biological specimen from
19 confidentiality; penalties; notice of use of results.— 48 which DNA can be extracted, or the DNA extracted from such
20 (2)(a) Except for purposes of criminal prosecution, except 49 specimen.
21 for purposes of determining paternity as provided in s. 409.256 50 (2) It is unlawful for a person to willfully, and without
22 or s. 742.12(1), and except for purposes of acquiring specimens 51 authorization, collect or retain another person’s DNA sample
23 as provided in s. 943.325, DNA analysis may be performed only 52 with the intent to perform DNA analysis. A person who violates
24 with authorization, as defined in s. 817.5655 the informed 53 this subsection commits a misdemeanor of the first degree,
25 consent of the person to be tested, and the results of such DNA 54 punishable as provided in s. 775.082 or s. 775.083.
26 analysis, whether held by a public or private entity, are the 55 (3) It is unlawful for a person to willfully, and without
27 exclusive property of the person tested, are confidential, and 56 authorization, submit another person’s DNA sample for DNA
28 may not be disclosed without authorization the consent of the 57 analysis or to conduct or procure the conducting of another
29 person tested. Such information held by a public entity is 58 person’s DNA analysis. A person who violates this subsection
Page 1 of 3 Page 2 of 3
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2021 SB 1140
27-01195A-21 20211140__
59 commits a felony of the third degree, punishable as provided in
60 s. 775.082, s. 775.083 or s. 775.084.
61 (4) It is unlawful for a person to willfully, and without
62 authorization, disclose another person’s DNA analysis results to
63 a third party. A person who violates this subsection commits a
64 felony of the third degree, punishable as provided in s.
65 775.082, s. 775.083 or s. 775.084.
66 (5) Each instance of collection or retention, submission or
67 analysis or disclosure in violation of this section constitutes
68 a separate violation for which a separate penalty is authorized.
69 (6) This section does not apply to a DNA sample, a DNA
70 analysis, or the results of a DNA analysis used for the purposes
71 of:
72 (a) Criminal investigation or prosecution;
73 (b) Determining paternity under s. 409.256 or s. 742.12(1);
74 or
75 (c) Performing any activity authorized under s. 943.325.
76 Section 3. This act shall take effect October 1, 2021.
Page 3 of 3
CODING: Words stricken are deletions; words underlined are additions.
The Florida Senate
Committee Agenda Request
To: Senator Ed Hooper, Chair
Committee on Commerce and Tourism
Subject: Committee Agenda Request
Date: March 9, 2021
I respectfully request that Senate Bill 1294, relating to Cottage Food Operations, be placed on
the:
committee agenda at your earliest possible convenience.
next committee agenda.
Senator Jason Brodeur
Florida Senate, District 9
File signed original with committee office S-009 (01/2021)
The Florida Senate
APPEARANCE RECORD
Meeting Date
(Deliver BOTH copies of this form to the Senator or Senate Professional Staff conducting t e meeting)
%m
Bill Number (if applicable)
Topic $ Amendment Barcode (if applicable)
Name
Job Title
Address Phone
s,reXt L
Email
City State Zip
Speaking: or | | Against | | Information Waive Speaking: r~l In Support | | Against
(The Chair will read this information into the record.)
Representing .
Appearing at request of Chair: Yes No Lobbyist registered with Legislature:
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
The Florida Senate
APPEARANCE RECORD
(Deliver BOTH copies of this form to the Senator or Senate Professional Staff conducting the meeting)
Bill Number (if applicable)
Topic Amendment Barcode (if applicable)
Name
Job T tle
Address Phone
Street
Email
City State Z/p
Speaking: F r Against lnf°rma on Waive Speaking: [ in Support O Against
(The Chair will reap m information into the record.)
Representing
Appearing at request of Chair: Yes lo Lobbyist registered with Legislature: No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
m atinn Thn.Q lA/hn n ftnfiftlc mav bfi asked tn limit their r marks so that as manv oersons as oossible can be heard.
The Florida Senate
APPEARANCE RECORD
(Deliver BOTH copies of this form to the Senator or Senate Professional Staff conducting the meeting)
Meeting Date Bill Number (if applicable)
Topic Amendment Barcode (if applicable)
Name
Job Title
Address Phone 8 O ? 31
Email
City Zip
Speaking: | | For | | Aga nst | | Information Waive Speaking:
(The Chair will read this information into the record.)
Represen ing
Appearing at request of Chair: Yes RTNo Lobbyist registered with Legislature: Yes -No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
m tinn Thofiia who dn nneak mav he naked tn limit their remarks an that aa manv neranna as nnsaihle can be hea d.
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROOM Reset Form
The Florida Senate
1294
March 22, 2021 APPEARANCE RECORD Bill Number (if applicable)
Meeting Date
Amendment Barcode (if applicable)
Topic
Name Tim Nun9esser
job Title Legislative Dir ctor
Address 110 East Jefferson street Phone 850-445-5367
Street
Tallahassee FL 32301 Email Tim-nun9esser@nfib.org
City State Zip
For Against Information Waive Speaking: In Support Against
Speaking:
(The Chair will read this information into the record.)
Representing NFlS
Appearing at request of Chair: Yes No Lobbyist registered with Legislature: Yes I No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to li it their re arks so that as any persons as possible can be heard.
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: SB 1294
INTRODUCER: Senator Brodeur
SUBJECT: Cottage Food Operations
DATE: March 19, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Oxamendi Imhof RI Favorable
2. Reeve McKay CM Favorable
3. RC
I. Summary:
SB 1294 revises the regulations on cottage food operations and cottage food sales. A cottage
food operation is a natural person who produces or packages cottage food products, defined by
the Department of Agriculture as any food that is not a potentially hazardous food, at his or her
residence.
The bill allows individual cottage food operations to sell, offer for sale, and accept payment for
cottage food products as a business entity. The bill also allows cottage food products to be sold,
offered for sale, and paid for by mail order, and permits cottage food products to be delivered by
mail.
Cottage food operations are exempt from food permitting requirements if the cottage food seller
complies with s. 500.80, F.S., and has annual gross sales of up to $50,000. The bill increases the
maximum allowable gross sales to $250,000.
The bill preempts the regulation of cottage food operations to the state.
The bill provides that this act may be cited as the “Home Sweet Home Act.”
The bill takes effect July 1, 2021.
II. Present Situation:
Food Safety Laws
The Division of Food Safety within the Department of Agriculture and Consumer Services
(department) ensures that safe, wholesome, and properly labeled food is available to the public
through the permitting and inspection of food establishments, and inspection of food products
BILL: SB 1294 Page 2
that are sold or produced in Florida.1 The department works in cooperation with the United
States Department of Agriculture and the Food and Drug Administration to help ensure
compliance with both state and federal regulations.2
Cottage Food Operations
A cottage food operation is an unincorporated business operated by a natural person who, under
certain conditions and restrictions, produces or packages food that is not potentially hazardous in
their residence.3
A cottage food product is any food that is not a potentially hazardous food as defined by
department rule which is sold by a cottage food operation in accordance with s. 500.80, F.S.4 The
department has not adopted a rule defining the term “potentially hazardous food,” but it has
adopted the U.S. Food and Drug Administration’s 2017 Food Code (Food Code).5
The Food Code defines the term “time/temperature controlled for safety food,” formerly referred
to as “potentially hazardous food,” as a “food that requires time/temperature control for safety
(TCS) to limit pathogenic microorganism growth or toxin formation.” The term includes:
Animal food that is raw or heat-treated;
Plant food that is heat-treated or consists of raw seed sprouts, cut melons, cut leafy greens,
cut tomatoes or mixtures of cut tomatoes that are not modified in a way so that they are
unable to support pathogenic microorganism growth or toxin formation; and
Garlic-in-oil mixtures that are not modified so that they are unable to support pathogenic
micro-organism growth or toxin formation.6
The department has identified the following foods as not potentially hazardous and therefore
permitted to be produced by a cottage food operation:
Loaf breads, rolls, biscuits;
Cakes, pastries, and cookies;
Honey;
Jams, jellies, and preserves made from high acid-fruits only;
Fruit pies and dried fruits;
Dry herbs, seasonings, and mixtures;
Homemade pasta;
Cereals, trail mixes, and granola;
1
Florida Department of Agriculture and Consumer Services, Division of Food Safety, available at
http://www.freshfromflorida.com/Divisions-Offices/Food-Safety (last visited Mar. 19, 2021). See also ch. 500, F.S., the
Florida Food Safety Act.
2
Florida Department of Agriculture and Consumer Services, Food Establishments, available at
https://www.fdacs.gov/Business-Services/Food/Food-Establishments (last visited Mar. 19, 2021).
3
Sections 500.03(j), (k), and 500.80, F.S.
4
Section 500.03(k), F.S.
5
Fla. Admin. Code R. 5K-4.002(4)(a).
6
U.S. Food and Drug Administration, 2017 Food Code, subpart 1-201.10, defining “Time/Temperature Control for Safety
Food (formerly “potentially hazardous food” (PHF))” Certain foods may be designated as “product assessment required” due
to the interaction of their water content and pH values after heat treatment or packaging to control vegetative cells and spores.
Such foods are considered TCS food until further study proves otherwise.
BILL: SB 1294 Page 3
Coated or uncoated nuts;
Vinegar and flavored vinegars;
Popcorn and popcorn balls; and
Nut butters, including almond, peanut, cashew, etc. 7
Under s. 500.80, F.S., cottage food operations are exempt from food safety production standards,
are not subject to inspection by a governmental entity, and are not required to meet state food
permitting requirements under s. 500.12, F.S. However, cottage food operations must comply
with the cottage food law and limit annual gross sales of cottage food products to less than
$50,000. A cottage food operation must provide the department with written documentation to
verify its annual gross sales upon the department’s request to do so.
Cottage food operations may sell and accept payments for cottage food products over the
Internet, but such products must be delivered in person. Cottage food operations are currently
prohibited from selling or delivering cottage food products by mail order or at wholesale.8 A
cottage food operation may only sell cottage food products that are stored on the premises of the
operation.9
Cottage food products must be prepackaged with a label that contains:
The name and address of the cottage food operation;
The name of the cottage food product;
The ingredients of the cottage food product, in descending order of predominance by weight;
The net weight or net volume of the cottage food product;
Allergen information as specified by federal labeling requirements;
Appropriate nutritional information as specified by federal labeling requirements, if any
nutritional claim is made;10 and
The statement, “Made in a cottage food operation that is not subject to Florida’s food safety
regulation” printed in 10-point type in a color that provides a clear contrast to the background
of the label.11
Cottage food operations are not exempt from any state or federal tax law, rule, regulation, or
certificate that applies to all cottage food operations,12 and must comply with all applicable
county and municipal laws and ordinances regulating the preparation, processing, storage, and
sale of cottage food products.13
7
See Department of Agriculture and Consumer Services, Division of Food Safety: Cottage Food Operations (August 2020),
available at https://www.fdacs.gov/content/download/70108/file/Cottage-Food-Operations.pdf (last visited Mar. 19, 2021).
8
Section 500.80(2), F.S.
9
Section 500.80(4), F.S.
10
See Food Labeling, 21 C.F.R. § 101.
11
Section 500.80(3), F.S.
12
Section 500.80(5), F.S.
13
Sections 500.80(6), F.S.
BILL: SB 1294 Page 4
Cottage Food Operations Investigations and Complaints
The department may investigate complaints that a cottage food operation has violated an
applicable provision of state food products law14 or rule adopted under such law.15 Upon
receiving a complaint, an officer or employee of the department may inspect the cottage food
operation’s premises to determine compliance with applicable to state law and departmental
rules. An operation’s refusal to permit an authorized officer or employee to enter and inspect the
premises is grounds for administrative disciplinary action under s. 500.121, F.S.16
State law regarding cottage food operations does not apply to any person operating under a food
permit issued pursuant to s. 500.12, F.S.17
In 2020, the department responded to 233 consumer complaints regarding unpermitted food
establishments, many of which were cottage food operations not complying with the existing
food laws.18
Cottage Food Sales in Other States
Nationwide, 49 states and the District of Columbia have cottage food programs; many states
have comparable regulations to the existing cottage food laws in Florida. While not all states
have imposed a gross income limit, the average allowable gross income in states with limits
ranges from $15,000 to $35,000 annually. States without income limits have various prohibitions
against mail deliveries and out-of-state sales of cottage food products.19
III. Effect of Proposed Changes:
The bill expands the definition of “cottage food operation” in s. 500.03(1)(j), F.S., to include
entities that produce or package cottage food products at the residence of a natural person with
an ownership interest in the entity.
The bill increases the maximum annual gross sales limit for cottage foods operations from
$50,000 to $250,000.
The bill permits cottage food operations to sell and accept payment for cottage food products by
mail order and to deliver cottage food products by mail.
14
Chapter 500, F.S.
15
Section 500.80(7)(a), F.S.
16
Section 500.121, F.S., provides disciplinary procedures for violations of ch. 500, F.S., and applicable rules, including the
imposition of Class II administrative fines against a cottage food operation that violates ch. 500, F.S. A violation in the Class
II category carries a fine not to exceed $5,000 for each violation. See s. 570.971(1)(b), F.S.
17
Section 500.12, F.S., requires a permit issued by the department for any person operating a food establishment or retail
food store.
18
Department of Agriculture and Consumer Services, Agency Analysis for SB 1294, (Feb. 23, 2021) (on file with the Senate
Committee on Regulated Industries).
19
Id. See also Harvard Food Law and Policy Clinic, Cottage Food Laws in the United States (August 2018), available at
https://www.chlpi.org/wp-content/uploads/2013/12/FLPC_Cottage-Foods-Report_August-2018.pdf (last visited Mar. 19,
2021).
BILL: SB 1294 Page 5
The bill also preempts the regulation of cottage food operations to the state. Under the bill, a
local law, ordinance, or regulation may not prohibit a cottage food operation or regulate the
preparation, processing, storage, and sale of cottage food products by a cottage food operation or
from a person’s residence.
This act may be cited as the “Home Sweet Home Act.”
The bill takes effect July 1, 2021.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
The Department of Agriculture and Consumer Services indicates that the increase in
gross sales limits for cottage food operators may result in increased food safety health
events and complaints, and therefore increase the department’s workload. The department
cannot recover these enforcement expenses because cottage food operations do not pay a
permit fee. An increase in the annual gross sales limit will also result in fewer food
BILL: SB 1294 Page 6
establishments permitted and inspected by the department, which may have a negative
fiscal impact on the department.
VI. Technical Deficiencies:
None.
VII. Related Issues:
Increasing the allowable gross sales for cottage food operations would remove larger operations
from permitting requirements and inspections for sanitation and compliance with food safety
regulations. The department states that, without proper training and oversight, small businesses
may expose themselves to greater liability resulting from harming persons through foodborne
illnesses.20
VIII. Statutes Affected:
This bill substantially amends sections 500.03 and 500.80 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
20
Supra note 18.
Florida Senate - 2021 SB 1294 Florida Senate - 2021 SB 1294
By Senator Brodeur
9-01409-21 20211294__ 9-01409-21 20211294__
1 A bill to be entitled 30 (2) and (6) of section 500.80, Florida Statutes, are amended to
2 An act relating to cottage food operations; providing 31 read:
3 a short title; amending s. 500.03, F.S.; revising the 32 500.80 Cottage food operations.—
4 definition of “cottage food operation”; amending s. 33 (1)(a) A cottage food operation must comply with the
5 500.80, F.S.; increasing the annual gross sales 34 applicable requirements of this chapter but is exempt from the
6 limitation for exempting cottage food operations from 35 permitting requirements of s. 500.12 if the cottage food
7 certain food and building permitting requirements; 36 operation complies with this section and has annual gross sales
8 authorizing the sale, offer for sale, acceptance of 37 of cottage food products that do not exceed $250,000 $50,000.
9 payment, and delivery of cottage food products by 38 (2) A cottage food operation may sell, offer for sale, and
10 mail; preempting the regulation of cottage food 39 accept payment for cottage food products over the Internet or by
11 operations to the state; prohibiting local governments 40 mail order. Such, but such products may must be delivered in
12 from prohibiting or regulating cottage food 41 person directly to the consumer, or to a specific event venue,
13 operations; providing an effective date. 42 or by mail. A cottage food operation may not sell, offer for
14 43 sale, or deliver cottage food products by mail order or at
15 Be It Enacted by the Legislature of the State of Florida: 44 wholesale.
16 45 (6) The regulation of cottage food operations is preempted
17 Section 1. This act may be cited as the “Home Sweet Home 46 to the state. A local law, ordinance, or regulation may not
18 Act.” 47 prohibit a cottage food operation or regulate must comply with
19 Section 2. Paragraph (j) of subsection (1) of section 48 all applicable county and municipal laws and ordinances
20 500.03, Florida Statutes, is amended to read: 49 regulating the preparation, processing, storage, and sale of
21 500.03 Definitions; construction; applicability.— 50 cottage food products by a cottage food operation or from a
22 (1) For the purpose of this chapter, the term: 51 person’s residence.
23 (j) “Cottage food operation” means a natural person or an 52 Section 4. This act shall take effect July 1, 2021.
24 entity that who produces or packages cottage food products at
25 the his or her residence of the natural person or at the
26 residence of a natural person who has an ownership interest in
27 the entity, and sells such products in accordance with s.
28 500.80.
29 Section 3. Paragraph (a) of subsection (1) and subsections
Page 1 of 2 Page 2 of 2
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
The Florida Senate
Committee Agenda Request
To: Senator Ed Hooper, Chair
Committee on Commerce and Tourism
Subject: Committee Agenda Request
Date: March 10, 2021
I respectfully request that Senate Bill #1374, relating to Small Business Website Development
Grant Program, be placed on the:
committee agenda at your earliest possible convenience.
next committee agenda.
Senator Gary M. Farmer, Jr.
Florida Senate, District 34
File signed original with committee office S-020 (03/2004)
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: SB 1374
INTRODUCER: Senator Farmer
SUBJECT: Small Business Website Development Grant Program
DATE: March 19, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Reeve McKay CM Favorable
2. ATD
3. AP
I. Summary:
SB 1374 creates the Small Business Website Development Grant Program (grant program), to be
administered by the Department of Economic Opportunity. A small business located in Florida
that does not have a website may apply for a one-time grant of up to $2,500 to be used for the
development of a website.
The grant program created by the bill is subject to legislative appropriation.
The bill takes effect July 1, 2021.
II. Present Situation:
According to the Small Business Development Council, Florida’s more than 2.5 million small
businesses employ nearly half of the state’s private sector employees. Of the small businesses
with employees, 88 percent are small businesses with fewer than 20 employees; 1 most of these
businesses are in technical services, construction, retail trade, and healthcare or social
assistance.2 Surveys suggest that while the majority of shoppers visit a website before going to a
physical store to make a purchase, up to 45 percent of small businesses nationwide do not have a
business website.3
1
Florida Small Business Development Center, State of Small Business Report: Florida (2020), available at
https://floridasbdc.org/Reports/2020-State-of-Small-Business/State_of_Small_Business_Florida_2020_FINAL_web.pdf (last
visited Mar. 19, 2021).
2
U.S. Small Business Administration, 2020 Small Business Profile, available at https://cdn.advocacy.sba.gov/wp-
content/uploads/2020/06/04143012/2020-Small-Business-Economic-Profile-FL.pdf (last visited Mar. 19, 2021).
3
CNBC, Tech Help Wanted: About Half of Small Businesses Don’t Have a Website (June 14, 2017), available at
https://www.cnbc.com/2017/06/14/tech-help-wanted-about-half-of-small-businesses-dont-have-a-website.html (last visited
Mar. 19, 2021).
BILL: SB 1374 Page 2
III. Effect of Proposed Changes:
The bill creates s. 288.126, F.S., the Small Business Website Development Grant Program. The
grant program is intended to support Florida’s economy and stimulate economic growth by
assisting small businesses without a website in the development of a website.
Small businesses in the state that do not have website may apply to the DEO for a one-time grant
of up to $2,500. Grants must be used for the development of a website, including costs
associated with website development, website maintenance fees, website development education,
and other related costs.
The bill defines a “small business” as a business with 25 or fewer full-time equivalent
employees.
The DEO is granted rulemaking authority to administer the grant program.
The bill takes effect July 1, 2021.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
The state government of Florida is divided into the legislative, executive and judicial
branches. Pursuant to Article II, s. 3 of the State Constitution, “[n]o person belonging to
one branch shall exercise any powers appertaining to either of the other branches unless
expressly provided herein.” Two fundamental prohibitions are contained in the separation
of powers doctrine in Florida. The first is that no branch may encroach upon the powers
of the other; the second is that no branch may delegate to another branch its
constitutionally assigned power.4 Under the nondelegation doctrine, the Legislature “may
not delegate the power to enact a law or the right to exercise unrestricted discretion in
4
Chiles v. Children A, B, C, D, E & F, 589 So.2d 260, 266 (Fla.1991)
BILL: SB 1374 Page 3
applying the law.”5 The Legislature must promulgate standards sufficient to guide
administrative agencies in the performance of their duties.6
The bill specifies no standards the DEO must use in determining which applicants should
receive grant funds, or how much funding each successful grant applicant should receive.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
Grant recipients will incur benefits in the amount of their grant awards.
C. Government Sector Impact:
Indeterminate. The grant program created by the bill is subject to legislative
appropriation. The DEO may incur costs associated with administering the grant
program.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill creates section 288.126 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
5
Sloban v. Florida Board of Pharmacy, 982 So.2d 26, 29 (Fla. 1st DCA 2008) (citing Sims v. State, 754 So.2d 657, 668
(2000)).
6
Florida Dep‘t. of State, Div. of Elections v. Martin, 916 So.2d 763 (Fla. 2005).
Florida Senate - 2021 SB 1374 Florida Senate - 2021 SB 1374
By Senator Farmer
34-01709-21 20211374__ 34-01709-21 20211374__
1 A bill to be entitled 30 not have a website for the purpose of website development.
2 An act relating to the Small Business Website 31 (4) A small business in this state that does not have a
3 Development Grant Program; creating s. 288.126, F.S.; 32 website may apply to the department for a one-time grant in an
4 creating the Small Business Website Development Grant 33 amount of $2,500 or less. Such grant funds must be used for the
5 Program within the Department of Economic Opportunity; 34 development of a website, which may include the costs associated
6 providing the purpose of the program; defining the 35 with website development, website maintenance fees, website
7 term “small business”; requiring the department to 36 development education, and other related costs.
8 provide grants subject to legislative appropriation; 37 (5) The department shall adopt rules necessary to
9 authorizing certain small businesses to apply for a 38 administer this section.
10 grant in a specified amount; requiring that grant 39 Section 2. This act shall take effect July 1, 2021.
11 funds be used for the development of a website;
12 requiring the department to adopt rules; providing an
13 effective date.
14
15 Be It Enacted by the Legislature of the State of Florida:
16
17 Section 1. Section 288.126, Florida Statutes, is created to
18 read:
19 288.126 Small Business Website Development Grant Program.—
20 (1) The Small Business Website Development Grant Program is
21 created within the department. The purpose of the program is to
22 support this state’s economy and stimulate economic growth by
23 assisting small businesses that do not have a website in the
24 development of a website.
25 (2) As used in this section, the term “small business”
26 means a business with 25 or fewer full-time equivalent
27 employees.
28 (3) Subject to legislative appropriation, the department
29 shall provide grants to small businesses in this state that do
Page 1 of 2 Page 2 of 2
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
THE FLORIDA SENATE
COMMITTEES:
Tallahassee, Florida 32399-1100 Transportation, Chair
Military and Veterans Affairs, Space,
and Domestic Security, Vice Chair
Appropriations Subcommittee on Health and
Human Services
Children, Families, and Elder Affairs
Finance and Tax
SELECT COMMITTEE:
Select Committee on Pandemic
Preparedness and Response
SENATOR GAYLE HARRELL
25th District
March 5, 2021
Senator Ed Hooper
Commerce and Tourism
310 Knott Building
404 South Monroe Street
Tallahassee, FL 32399
Chair Hooper,
I respectfully request that SB 1992 – Solicitation of Non-Medical Services be placed on the
next available agenda for the Commerce and Tourism Committee Meeting.
Should you have any questions or concerns, please feel free to contact my office. Thank you in
advance for your consideration.
Thank you,
Senator Gayle Harrell
Senate District 25
Cc: Todd McKay, Staff Director
Kathryn Vigrass, Committee Administrative Assistant
REPLY TO:
215 SW Federal Highway, Suite 203, Stuart, Florida 34994 (772) 221-4019
310 Senate Building, 404 South Monroe Street, Tallahassee, Florida 32399-1100 (850) 487-5025
Senate’s Website: www.flsenate.gov
BILL GALVANO DAVID SIMMONS
President of the Senate President Pro Tempore
YOU MUST PRINT AND DELIVE THIS FORM TO THE ASSIGNED TESTI ONY ROO
The Florida Senate
03.22.21 APPEARANCE RECORD 1992
Bill Number (if applicable)
Meeting Date
Topjc Solicitation of Nonmedical Services Amendment Barcode (if applicable)
Name William Large
Job Title President
Address 210 South Monroe Street Phone 850-222-0170
Street
Tallahassee FL 32301 EmaiiWilliamtgfljustice.org
City Sfate ZP
Speaking: l JFor Against Information Waive Speaking: In Support JAgainst
(The Chair will read this information Into the record.)
Representing Florida Justice Reform Institute
Appearing at request of Chair: Yes No Lobbyist registered with Leg slature: Yes |No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
S-001 (10/14/14)
This form is part of the public record for this m eting.
The Florida Senate
APPEARANCE RECORD
( e lver BOTH copies of this form to the Senator or Senate Professional Staff conducting the meeting) , „
Bill Number (if applicable)
Topic
Amendment Barcode (if applicable)
Name
Job Title l \
Address Z G f | Phone
Street t/
City Email
State Zip
Speaking: [2] For | | Against I I Information Waive Speaking: In Support Against
(The Chair will read this information into the record.)
Representing
Appearing at request of Chair: Yes No Lobbyist registered with Legislature: Yes No
eetin
This form is nsrt nf tha r..
YOU MUST PRINT AND DELIVER THIS FO M TO THE ASSIGNED TESTIMO Y ROOM
The Florida Senate
3/22/21
Meeting Date
APPEARANCE RECORD 1992
Bill Number (if applicable)
Topic Solicitation of Nonmedical Services
Amendment Barcode (if applicable)
Name Steve Winn
Job Title Executive Director
A dress 2544 Blairstone Pines Dr
Street
Phone 878-7364
Tallahassee FL
City
32301 Email
State Zip
Speaking: For Against Information Waive
vvdiveSpeaking:
peaKing:|*t | J
InIn
Support
Support [Against
(The Chair will read this information into the record.)
Representing Florida Osteopathic Medical Association
Appeamjal reqiiost of Chair: Yes
LJVesI jNo lobbyist registered Mm legislature: 0Yes Dno
This form is pa t of the public record for this meotinn
TO THE ASSIGNED
TESTIMONY ROO
3/22/21 The Florida Senate
Meeting Date appearance record
~~ SB 1992
~Number (if applicable)
T°Pic
Name George Feijoo
Job Title Consultant
Address 08 S Monroe St.
Street
Tallahassee Phone 850-681-0024
City FL
Email grfeijoo@f|apartnerscom
ion
Representin U.S, Chamber of Commerce
Ap earing at request of Chair: [Jyes 0No
Lobbyist registered with Legislature; 0Yes
' ay not De mit aii . ' es ¦ I No
r».. md
YOU MUST PRINT A D DELIVER THIS FO M TO THE ASSIGNED TESTI ONY ROOM
The Florida Senate
3/22/2021
Meeting Date
APPEARANCE RECORD SB 1992
Bill Number (if applicable)
Topic Solicitation of Nonmedical Services
Amendment Barcode (if applicable)
Na e Marnie George
Job Title Sr. Advisor - Buchanan Ingersoll & Rooney
Address l l N- Monroe Street, Suite 1090 Phone (850)510-8866
Street
Tallahassee FL
32303 Emaj| marnie.george@bipc.com
City State Zip
Speaking: For Against Information Waive Speaking: | |In Sup ort hAgainst
(The Chair will read this information into the record.)
Representing FL Chapter American College of Cardiology
Appearing at request of Chair: Yes l l o Lobbyist registered with Legislature: No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possible can be heard.
The Florida Senate
appearance record
(Deliver BOTH copies of this form to the Senator or Senate Professions! Staff conducting the meeting)
Meeting Date
Bill Number (if applicable)
Tdpic
Amendment Barcode (if applicable)
Name
Job Title
Address 1100
Street Phone__ 556~ 1 I
Ci y State ~ Email
Speaking: For Against information
WaiVe Speakin : In Support Against
(The Chair will read this information into the record.)
Representing
oct'j
Appearing at request of Chair:
Lobbyist registered with Legislature: [ I Yes No
meeting. Those w othis
YOU MUST PRINT AND DELIVER THIS
FO TO THE ASSIGNED TESTIMONY ROO
The Florida Senate
arch 22, 2021
Meeting Date appearance record 1992
Bill Number (if applicable)
Topic Solicitation of Nonmedical Services
Name Michael Carlson Amendment Barcode (if applicable)
Job Title President
Address 215 S. Monroe St. Ste. 835
Street hone 850-544-9576
Tallahassee
FL
City 2301 Email michael.carlson@piff net
State Zip _
Speaking: For Against Information
Waive Speaking: 0 in Support I I A ainst
R p ( 6 Chair wil1 read this formation into the record)
Representing Personal Insurance Federation of Florida, Inc.
Lobbyist registered
Wh eitisa Senat8 tradition to encOuragepubtic testimonv with Legislature:
Y '™rea With Legislature: Hves
|/jYes LJno
ThIS form is part of the publjc reCQrd for
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGN D TESTI ONY ROOM
The Florida Senate
3/22/21
Meeting Date
APPEARANCE RECORD SB 1992
Bill Number (if applicable)
Topic Sol citation of non-medical services
Amendment Barcode (if applicable)
Name Carolyn Johnson
Job Title Senior Policy Director
A dress 36 S Bronough Street
Street
Phone 850-521-1200
Tallahassee FL
City
32301 Email cj°hnson@flchamber.com
State Zip ~
Speaking: For Against Information Waive Speaking: 0 In Support Against
(The Chair will read this information into the record.)
Representing Florida Chamber of Commerce
App«.n„gat l6,0(Cb UypsMno Lobbyist registered with Legislaiure: 0Yes
This form is part of the public record for this
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: SB 1992
INTRODUCER: Senator Harrell
SUBJECT: Solicitation of Nonmedical Services
DATE: March 19, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. McMillan McKay CM Favorable
2. JU
3. RC
I. Summary:
The bill creates s. 501.2106, F.S., which provides that it is a deceptive and unfair trade practice
for a person to submit or approve the submittal of a nonmedical solicitation for publication,
broadcast, or dissemination, or to pay for or otherwise sponsor a nonmedical solicitation if the
solicitation meets or fails to meet specified criteria, including the following:
Fails to clearly disclose the phrase, “this is a paid advertisement for nonmedical services;”
Includes terminology implying that the advertisement is a public alert or announcement;
Displays a logo in a manner implying affiliation with a governmental agency;
Includes terminology implying that the product has been recalled;
Fails to clearly disclose the individual or entity that will provide professional services; and
Fails to include any required disclosure.
The bill creates s. 877.025, F.S., which provides that a person who is soliciting professional
services may not use, cause to be used, obtain, sell, transfer, or disclose to another person an
individual’s protected health information, without the individual’s written authorization.
The Criminal Justice Impact Conference, which provides the final, official estimate of the prison
bed impact, if any, of legislation, has not yet reviewed the bill. However, since the bill creates a
new second degree felony, it will likely have a positive indeterminate (i.e., unquantifiable
increase) prison bed impact on the Department of Corrections. The bill also creates a new
misdemeanor, which will likely have a positive indeterminate (i.e., unquantifiable increase) jail
bed impact on counties.
Except as otherwise provided, the bill takes effect July 1, 2021.
BILL: SB 1992 Page 2
II. Present Situation:
Florida Deceptive and Unfair Trade Practices Act (FDUTPA)
History and Purpose of FDUTPA
The Florida Deceptive and Unfair Trade Practices Act (FDUTPA) became law in 1973.1 The
FDUTPA is a consumer and business protection measure that prohibits unfair methods of
competition, unconscionable acts or practices, and unfair or deceptive acts or practices in trade or
commerce.2 The FDUTPA is based on federal law, and s. 501.204(2), F.S., provides that it is the
intent of the Legislature that due consideration and great weight must be given to the
interpretations of the Federal Trade Commission and the federal courts relating to section 5 of
the Federal Trade Commission Act.3
The State Attorney or the Department of Legal Affairs may bring actions when it is in the public
interest on behalf of consumers or governmental entities.4 The Office of the State Attorney may
enforce violations of the FDUTPA if the violations take place in its jurisdiction.5 The
Department of Legal Affairs has enforcement authority if the violation is multi-jurisdictional, the
state attorney defers in writing, or the state attorney fails to act within 90 days after a written
complaint is filed.6 Consumers may also file suit through private actions.7
Remedies under the FDUTPA
The Department of Legal Affairs and the State Attorney, as enforcing authorities, may seek the
following remedies:
Declaratory judgments;
Injunctive relief;
Actual damages on behalf of consumers and businesses;
Cease and desist orders; and
Civil penalties of up to $10,000 per willful violation.8
Remedies for private parties are limited to the following:
A declaratory judgment and an injunction where a person is aggrieved by a FDUTPA
violation; and
Actual damages, attorney fees and court costs, where a person has suffered a loss due to a
FDUTPA violation.9
1
Ch. 73-124, Laws of Fla.; codified at part II of ch. 501, F.S.
2
See s. 501.202, F.S. Trade or commerce means the advertising, soliciting, providing, offering, or distributing, whether by
sale, rental, or otherwise, of any good or service, or any property, whether tangible or intangible, or any other article,
commodity, or thing of value, wherever situated. “Trade or commerce” shall include the conduct of any trade or commerce,
however denominated, including any nonprofit or not-for-profit person or activity. See s. 501.203(8), F.S.
3
See s 501.204(2), F.S.
4
See ss. 501.203(2), 501.206, and 501.207, F.S.
5
Section 501.203(2), F.S.
6
Id.
7
Section 501.211, F.S.
8
Sections 501.207(1), 501.208, and 501.2075, F.S. Civil Penalties are deposited into general revenue. Enforcing authorities
may also request attorney fees and costs of investigation or litigation. Section 501.2105, F.S.
9
Section 501.211(1) and (2), F.S.
BILL: SB 1992 Page 3
Federal Unfair and Deceptive Trade Practices
The Federal Trade Commission’s (FTC’s) unfair and deceptive trade practices regulations
prohibit unfair10 or deceptive11 acts or practices in or affecting commerce.12 The FTC’s
regulations include “Truth In Advertising” guidelines, which require advertisements to be
truthful, not misleading, and, when appropriate, backed by scientific evidence.13 To enforce these
regulations, the FTC takes law enforcement actions, provides consumer and business education,
issues reports and policy guidance, leads workshops, and participates in other forums.14
Legal Advertising
Section 15 of Article V of the Florida Constitution vests exclusive jurisdiction in the Florida
Supreme Court to regulate admissions to the bar and to discipline admitted attorneys. The
Florida Bar approves lawyer advertising, issues advisory opinions interpreting rules, and
investigates and prosecutes attorneys for alleged violations.15 Florida’s legal advertising rules
apply to all forms of communication soliciting legal services in any print or electronic form.16
Advertisements in specified media must be submitted to the Legal Division of the Florida Bar at
least 20 days prior to dissemination, including print, television, radio, direct mail, and Internet. 17
The Legal Division reviews an advertisement to determine whether it complies with the Florida
Bar’s advertising rules, and issues an opinion either approving or disapproving the
advertisement. The Disciplinary Counsel of the Florida Bar investigates and prosecutes attorneys
for alleged violations of the advertising rules.18
Florida Bar rules require legal advertising to include:
The name of the lawyer or law firm;19
The location of the law practice;20 and
10
An “unfair” practice is unfair if it causes or is likely to cause substantial injury to consumers which is not reasonably
avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition. See 15
U.S.C. Sec. 45(n).
11
A “deceptive” practice involves a material representation, omission or practice that is likely to mislead a consumer acting
reasonably in the circumstances. See FTC Policy Statement on Deception (Oct. 14, 1983) available at
https://www.ftc.gov/system/files/documents/public_statements/410531/831014deceptionstmt.pdf (last visited March 19,
2021). See also Federal Trade Commission, A Brief Overview of the Federal Trade Commission's Investigative, Law
Enforcement, and Rulemaking Authority (revised, Oct. 2019) available at https://www.ftc.gov/about-ftc/what-we-
do/enforcement-authority (last visited March 19, 2021).
12
15 U.S.C. s. 45(a)(1).
13
Federal Trade Commission, Truth In Advertising, available at https://www.ftc.gov/news-events/media-resources/truth-
advertising (last visited March 19, 2021).
14
Federal Trade Commission, Protecting Consumers from Fraud and Deception, available at https://www.ftc.gov/news-
events/media-resources/truth-advertising/protecting-consumers (last visited March 19, 2021).
15 The Florida Bar, Frequently Asked Questions About the Florida Bar, available at https://www.floridabar.org/about/faq/ (last visited Mar.
19, 2021).
16 Fla. Bar Code Prof. Resp. D. R. 4-7.11(a).
17 Fla. Bar Code Prof. Resp. D. R. 4-7.11.
18 Fla. Bar Code Prof. Resp. D. R. 4-7.19.
19 Fla. Bar Code Prof. Resp. D. R. 4-7.12(a)(1).
20 Fla. Bar Code Prof. Resp. D. R. 4-7.12(a)(2).
BILL: SB 1992 Page 4
Certain disclosures when relevant, including whether a case will be referred to another
lawyer;21 a spokesperson in the advertisement is not an employee or member of the law
firm;22 or a scene depicted is a dramatization and not an actual event.23
Required information must be reasonably prominent and clearly legible if written, as well as,
clearly audible if spoken aloud.24
Drug Injury Advertising
In 2019, the FTC contacted seven law firms and lead generating companies to express concern
about some advertisements that solicit clients for personal injury lawsuits against drug
manufacturers, which may be considered deceptive or unfair under federal law.25 The FTC also
noted that the Food and Drug Administration’s (FDA) Adverse Event Reporting System
contained reports of consumers who had viewed advertisements about the prescription drugs they
were taking, discontinued those medications, and suffered adverse consequences.26 The FTC
warned that advertisements that cause, or are likely to cause, viewers to discontinue their
medications may constitute an unfair act or practice.27 The FTC recommended such
advertisements include clear and prominent audio and visual disclosures stating that a consumer
should not stop taking medication without first consulting a doctor.28
Health Insurance Portability and Accountability Act29 and its Related Rules
The Federal Health Insurance Portability and Accountability Act (HIPAA), protects personal
health information (PHI).30 HIPPA’s two pertinent implementing rules are the Privacy Rule and
the Security Rule.31 The Privacy Rule addresses the use and disclosure of an individual’s PHI by
covered entities.32 Covered entities include the following:
Health plans;
Health care providers;
Health care clearinghouses; and
21 Fla. Bar Code Prof. Resp. D. R. 4-7.12(b).
22 Fla. Bar Code Prof. Resp. D. R. 4-7.13(b)(5).
23 Fla. Bar Code Prof. Resp. D. R. 4-7.13(b)(6).
24 Fla. Bar Code Prof. Resp. D. R. 4-7.12(d).
25 Federal Trade Commission, FTC Flags Potentially Unlawful TV Ads for Prescription Drug Lawsuits (Sept. 24, 2019), available at
https://www.ftc.gov/news-events/press-releases/2019/09/ftc-flags-potentially-unlawful-tv-ads-prescription-drug-lawsuits (last visited Mar.
19, 2021).
26 Id.
27
Id.
28 Id.
29
42 U.S.C. § 1320.
30 Protected health information includes all individually identifiable health information held or transmitted by a covered entity or its
business associate. Pub. L. No. 104-191 (1996).
31
See Stephen Mulligan, Wilson Freeman, Chris Linebaugh, Congressional Research Service, Data Protection Law: An
Overview at 10-12 (March 25, 2019), available at https://crsreports.congress.gov/product/pdf/R/R45631 (last visited March
19, 2021).
32
45 C.F.R. §160 and 164. See also, Department of Health and Human Services, Summary of the HIPPA Privacy Rule (July
26, 2013) available at https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html (last visited March
19, 2021).
BILL: SB 1992 Page 5
Business associates of any of the above.33
A common example of PHI is a patient’s name, address, birth date, or social security number.
However, PHI does not include de-identified health information or employment-related records.
The Privacy Rule protects PHI that is held or transmitted by a covered entity or its business
associate by preventing covered entities from disclosing PHI without the patient’s consent or
knowledge unless it is being used or shared for treatment, payment, or healthcare operations or
for another exempt purpose.
The Privacy Rule also requires covered entities to prominently post an electronic notice and give
notice upon a specific request to patients regarding the manner in which it may use and disclose
PHI. A covered entity must also provide an accounting of disclosures it has made of a patient’s
PHI upon his or her request as well as a copy of his or her PHI.
The Security Rule applies to the subset of identifiable health information that a covered entity
creates, receives, maintains, or transmits in electronic form called “electronic protected health
information” (e-PHI).34 The Security Rule does not apply to PHI that is transmitted orally or in
writing. A covered entity must comply with the Security Rule by:
Ensuring the confidentiality, integrity, and availability of all electronic protected health
information;
Detecting and safeguarding against anticipated threats to the security of the information;
Protecting against anticipated impressible uses or disclosures; and
Certifying compliance by their workforce.
The Department of Health and Human Services may institute a civil enforcement under HIPPA
and may seek civil penalties. A civil penalty varies based on the severity of the violation, the
number of people affected, the nature of the data exposed, the length of time a violation was
allowed to persist, the prior compliance history of the covered entity, and the knowledge the
covered entity had of the violation.35 The Department of Justice may institute criminal
proceedings against a violator who knowingly obtained or disclosed PHI. Criminal penalties for
a HIPAA violation are triggered when a person obtains PHI for financial gain or under false
pretenses.36 The criminal penalty for such HIPAA violations are punishable by up to 10 years
imprisonment.37 There is no private cause of action under HIPPA.
III. Effect of Proposed Changes:
The bill creates s. 501.2106, F.S., which provides that it is a deceptive and unfair trade practice
for a person38 to submit or approve the submittal of a nonmedical solicitation for publication,
33
U.S. Department of Health and Human Services, Office for Civil Rights, Summary of the HIPAA Privacy Rule, (last rev.
May 2003), available at https://www.hhs.gov/sites/default/files/privacysummary.pdf. (last visited Mar. 19, 2021).
34
45 C.F.R. § 164.302-318.
35 HIPAA Journal, What are the penalties for HIPAA Violations?, https://www.hipaajournal.com/what-are-the-penalties-for-hipaa-
violations-7096/ (last visited Mar. 19, 2021).
36
Id.
37
Id.
38
A “person” includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts,
syndicates, fiduciaries, corporations, and all other groups or combinations. See s. 1.01(3), F.S.
BILL: SB 1992 Page 6
broadcast, or dissemination, or to pay for or otherwise sponsor a nonmedical solicitation if the
solicitation does any of the following:
Fails to clearly and conspicuously disclose at the outset of the solicitation the phrase, “this is
a paid advertisement for nonmedical services;”
Includes terminology implying that the advertisement is a “medical alert,” “health alert,”
“consumer alert,” “public service announcement,” or similar public alert or announcement;
Displays the logo, or a similar facsimile thereof, of a federal or state governmental agency in
a manner implying affiliation with or sponsorship by, a governmental agency;
Includes terminology, including use of the term “recall” when referring to a product,
implying that the product has been recalled when, in fact, the product has not been recalled
by a governmental agency or through agreement between a manufacturer and a governmental
agency;
Fails to clearly and conspicuously disclose the individual or entity that will provide
professional services to persons responding to the advertisement or how those persons will be
referred to such individual or entity;
Solicits clients who may allege injury from a prescription drug approved or cleared by, or
which is the subject of monograph authorized by, the United States (U.S.) Food and Drug
Administration (FDA) and fails to clearly and conspicuously disclose, “do not stop taking a
prescribed medication without first consulting your doctor,” and “discontinuing a prescribed
medication without your doctor’s advice can result in injury or death;”
Solicits clients who may allege injury from a prescription drug or medical device approved
or cleared by, or which is the subject of monograph authorized by, the U.S. FDA and fails to
clearly and conspicuously disclose that the drug or medical device remains approved by the
U.S. FDA, unless the product is recalled or withdrawn; and
Fails to present a written disclosure that is clearly legible and, if televised or displayed
electronically, is displayed for sufficient time to enable the viewer to easily see and fully read
the disclosure, or fails to present a spoken disclosure that is plainly audible and clearly
intelligible.
The bill provides the following definitions:
“Person” means individuals, children, firms, associations, joint adventures, partnerships,
estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or
combinations;39
“Client” means a prospective customer, client, or patron of nonmedical professional services;
“Nonmedical solicitation” means a paid solicitation for nonmedical professional services
which contains information about a drug40 or device41 and which is directed to the public
39
See s. 499.003(15), F.S.
40
A “drug” is defined as recognized in the current edition of the United States Pharmacopoeia and National Formulary,
official Homeopathic Pharmacopoeia of the United States, or any supplement to any of those publications, which is intended
for use in the diagnosis, cure, mitigation, treatment, therapy, or prevention of disease in humans or other animals, intended to
affect the structure or any function of the body of humans or other animals, or intended for use as a component of any of the
aforementioned articles, and includes active pharmaceutical ingredients, but does not include devices or their nondrug
components, parts, or accessories. See s. 499.003(17), F.S.
41
A “device” is defined as any instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other
similar or related article, including its components, parts, or accessories, which is recognized in the current edition of the
United States Pharmacopoeia and National Formulary, or any supplement thereof, intended for use in the diagnosis, cure,
mitigation, treatment, therapy, or prevention of disease in humans or other animals, or intended to affect the structure or any
BILL: SB 1992 Page 7
through television, radio, the Internet, a newspaper or other periodical, an outdoor advertising
sign, or another written, electronic, or recorded communication; and
“Solicit” means to offer to provide professional services by written, recorded, or electronic
communication or by in-person, telephone, or real-time electronic contact.
The bill creates s. 877.025, F.S., which is effective October 1, 2021, and provides that a person
who is soliciting professional services may not use, cause to be used, obtain, sell, transfer, or
disclose to another person an individual’s protected health information,42 without the individual’s
written authorization.
The bill establishes the following:
A person who violates s. 877.025, F.S., commits a deceptive and unfair trade practice;
A person who willfully and knowingly violates s. 877.025, F.S., commits a misdemeanor of
the first degree;43 and
A person who willfully and knowingly violates s. 877.025, F.S., with intent to sell, transfer,
or use protected health information for financial gain commits a felony of the second
degree.44
The bill provides that s. 877.025, F.S., does not apply to the disclosure or use of protected health
information to an attorney or by an attorney for use in a judicial or administrative proceeding, or
any other use or disclosure otherwise authorized or required by law.
Except as otherwise provided, the bill takes effect July 1, 2021.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
The bill creates new criminal offenses relating to the unlawful use of protected health
information. Criminal laws are exempt from the requirements of Art. VII, s. 18(d) of the
Florida Constitution, relating to unfunded mandates.
B. Public Records/Open Meetings Issues:
None.
function of the body of humans or other animals, and that does not achieve any of its principal intended purposes through
chemical action within or on the body of humans or other animals and which is not dependent upon being metabolized for the
achievement of any of its principal intended purposes. See s. 499.003(15), F.S.
42
“Protected health information” means individually identifiable health information that is transmitted by electronic media,
maintained in electronic media, or transmitted or maintained in any other form or medium, but excludes individually
identifiable health information in education records covered by the Family Educational Rights and Privacy Act, in records
described at 20 U.S.C. 1232g(a)(4)(B)(iv), in employment records held by a covered entity in its role as employer, and
regarding a person who has been deceased for more the 50 years. See 45 C.F.R. s. 106.103.
43
A misdemeanor of the first degree is punishable by a definite term of imprisonment not to exceed 1 year and a fine not to
exceed $1,000. See ss. 775.082 and 775.083, F.S.
44
The bill provides that the term of imprisonment may not exceed 10 years and the fine must be more than $10,000 but may
not exceed $250,000. See ss. 755.082, 775.083, and 775.084, F.S.
BILL: SB 1992 Page 8
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, the
Supreme Court held that commercial speech does receive protection under the First
Amendment.45 The Court based its opinion on the public’s right to receive a free flow of
commercial information.46 Although commercial speech does receive protection, it is
below the protection provided to completely protected speech, and states retain the ability
to regulate commercial speech that is inherently misleading or that has proven to be
misleading in practice.47
In Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York, the
Supreme Court established a three-part test for analyzing the limitations of advertising
regulations.48 Under the Central Hudson test, a state must show that any commercial
speech regulation aimed at regulating “non-misleading” commercial speech is in service
of a substantial state interest, directly advances that interest, and is no more extensive
than necessary to serve that interest.49 Although commercial speech regulations must
meet the Central Hudson test, in Bates v. State Bar of Arizona, the Supreme Court held
that reasonable time, place, and manner restrictions on advertising is authorized if the
content or subject matter is not regulated.50
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
The Criminal Justice Impact Conference, which provides the final, official estimate of the
prison bed impact, if any, of legislation, has not yet reviewed the bill. However, since the
45
See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 96 S. Ct. 1817 (1976).
46
Id.
47
See In re R.M.J., 102 S. Ct. 929 (1982).
48
See Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York, 100 S. Ct. 2343 (1980).
49
Id.
50
See Bates v. State Bar of Arizona, 97 S. Ct. 2691 (1977).
BILL: SB 1992 Page 9
bill creates a new second degree felony, it will likely have a positive indeterminate (i.e.,
unquantifiable increase) prison bed impact on the Department of Corrections. The bill
also creates a new misdemeanor, which will likely have a positive indeterminate (i.e.,
unquantifiable increase) jail bed impact on counties.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
The bill creates the following sections of the Florida Statutes: 501.2106 and 877.025.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2021 SB 1992 Florida Senate - 2021 SB 1992
By Senator Harrell
25-01037A-21 20211992__ 25-01037A-21 20211992__
1 A bill to be entitled 30 (a) “Client” means a prospective customer, client, or
2 An act relating to the solicitation of nonmedical 31 patron of nonmedical professional services.
3 services; creating s. 501.2106, F.S.; defining terms; 32 (b) “Nonmedical solicitation” means a paid solicitation for
4 providing that a person who submits or sponsors a 33 nonmedical professional services which contains information
5 nonmedical solicitation that contains certain 34 about a drug or device as defined in s. 499.003 and which is
6 terminology or fails to include specified disclosures 35 directed to the public through television; radio; the Internet,
7 commits a deceptive and unfair trade practice, subject 36 including a domain name; a newspaper or other periodical; an
8 to the penalties and remedies of the Florida Deceptive 37 outdoor advertising sign; or another written, electronic, or
9 and Unfair Trade Practices Act; creating s. 877.025, 38 recorded communication.
10 F.S.; defining terms; prohibiting the unauthorized 39 (c) “Person” has the same meaning as in s. 1.01(3).
11 use, sale, or transfer of protected health information 40 (2) A person who submits or approves the submittal of a
12 for the purpose of soliciting professional services; 41 nonmedical solicitation for publication, broadcast, or
13 providing that a person who willfully and knowingly 42 dissemination, or who pays for or otherwise sponsors a
14 violates such prohibition commits a deceptive and 43 nonmedical solicitation, commits a deceptive and unfair trade
15 unfair trade practice, subject to the penalties and 44 practice under this part if the solicitation, once published,
16 remedies of the Florida Deceptive and Unfair Trade 45 broadcast, or disseminated, does any of the following:
17 Practices Act; providing criminal penalties for 46 (a) Fails to clearly and conspicuously disclose at the
18 willful and knowing violations and enhanced criminal 47 outset of the solicitation the phrase: “This is a paid
19 penalties for violations committed for financial gain; 48 advertisement for nonmedical services.”
20 providing applicability; providing effective dates. 49 (b) Includes terminology implying that the advertisement is
21 50 a “medical alert,” “health alert,” “consumer alert,” “public
22 51 service announcement,” or similar public alert or announcement.
23 Be It Enacted by the Legislature of the State of Florida: 52 (c) Displays the logo, or a similar facsimile thereof, of a
24 53 federal or state governmental agency in a manner implying
25 Section 1. Section 501.2106, Florida Statutes, is created 54 affiliation with, or sponsorship by, a governmental agency.
26 to read: 55 (d) Includes terminology, including use of the term
27 501.2106 Nonmedical solicitation; deceptive and unfair 56 “recall” when referring to a product, implying that the product
28 trade practices.— 57 has been recalled when, in fact, the product has not been
29 (1) As used in this section, the term: 58 recalled by a governmental agency or through agreement between a
Page 1 of 5 Page 2 of 5
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2021 SB 1992 Florida Senate - 2021 SB 1992
25-01037A-21 20211992__ 25-01037A-21 20211992__
59 manufacturer and a governmental agency. 88 intelligible.
60 (e) Fails to clearly and conspicuously disclose the sponsor 89 Section 2. Effective October 1, 2021, section 877.025,
61 of the advertisement. 90 Florida Statutes, is created to read:
62 (f) Fails to clearly and conspicuously disclose the 91 877.025 Solicitation of nonmedical services; wrongful use
63 individual or entity that will provide professional services to 92 or disclosure of protected health information.—
64 persons responding to the advertisement or how those persons 93 (1) As used in this section, the term:
65 will be referred to such individual or entity. 94 (a) “Person” has the same meaning as in s. 1.01(3).
66 (g) Solicits clients who may allege injury from a 95 (b) “Protected health information” has the same meaning as
67 prescription drug approved or cleared by, or which is the 96 provided in 45 C.F.R. s. 106.103.
68 subject of a monograph authorized by, the United States Food and 97 (c) “Solicit” means to offer to provide professional
69 Drug Administration and fails to clearly and conspicuously 98 services by written, recorded, or electronic communication or by
70 disclose the following warning: “Do not stop taking a prescribed 99 in-person, telephone, or real-time electronic contact.
71 medication without first consulting with your doctor. 100 (2) A person may not use, cause to be used, obtain, sell,
72 Discontinuing a prescribed medication without your doctor’s 101 transfer, or disclose to another person an individual’s
73 advice can result in injury or death.” 102 protected health information, without that individual’s written
74 (h) Solicits clients who may allege injury from a 103 authorization, to solicit professional services.
75 prescription drug or medical device approved or cleared by, or 104 (3)(a) A person who violates subsection (2) commits a
76 which is the subject of a monograph authorized by, the United 105 deceptive and unfair trade practice subject to the penalties and
77 States Food and Drug Administration and fails to clearly and 106 remedies provided in part II of chapter 501.
78 conspicuously disclose that the drug or medical device remains 107 (b) A person who willfully and knowingly violates
79 approved by the United States Food and Drug Administration, 108 subsection (2) commits a misdemeanor of the first degree,
80 unless the product is recalled or withdrawn. 109 punishable as provided in s. 775.082 or s. 775.083.
81 (i) Fails to present any disclosure required by this 110 (c) A person who willfully and knowingly violates
82 subsection such that: 111 subsection (2) with intent to sell, transfer, or use protected
83 1. A written disclosure is clearly legible and, if 112 health information for financial gain commits a felony of the
84 televised or displayed electronically, is displayed for 113 second degree, punishable as provided in s. 775.082, s. 775.083,
85 sufficient time to enable the viewer to easily see and fully 114 or s. 775.084, except that the term of imprisonment may not
86 read the disclosure. 115 exceed 10 years and the fine must be more than $10,000 but may
87 2. A spoken disclosure is plainly audible and clearly 116 not exceed $250,000.
Page 3 of 5 Page 4 of 5
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2021 SB 1992
25-01037A-21 20211992__
117 (4) This section does not apply to the disclosure of
118 protected health information to an attorney, or the attorney’s
119 use of such protected health information, in any judicial or
120 administrative proceeding or any other use or disclosure
121 otherwise authorized or required by law.
122 Section 3. Except as otherwise expressly provided in this
123 act, this act shall take effect July 1, 2021.
Page 5 of 5
CODING: Words stricken are deletions; words underlined are additions.
The Florida Senate
Committee Agenda Request
To: Senator Ed Hooper, Chair
Committee on Commerce and Tourism
Subject: Committee Agenda Request
Date: March 3, 2021
I respectfully request that Senate Bill #1542, relating to Electronic Dissemination of Commercial
Recordings and Audiovisual Works, be placed on the:
committee agenda at your earliest possible convenience.
next committee agenda.
Senator Danny Burgess
Florida Senate, District 20
File signed original with committee office S-020 (03/2004)
YOU MUST PRINT AND DELIVE THIS FORM TO THE ASSIGNED TESTIMONY ROO
The Florida Senate
3/22/21 APPEARANCE RECORD 1542
Meeting Date Bill Number (if applicable)
Topic Electronic Dissemination of Co mercial Recordings and Audiovisual Works
Amendment Barcode (if applicable)
Name Will McKinley
Job Title President
Address E. College Ave., Suite 1100 Phone (S50) 681-1980
Street
allahassee, FL 32301 Email will@poole ckinley.com
city State Zip
Speaking: For Against Information Waive Speaking: l* l In Support Against
(The Chair will read this information into the record.)
Representing Mot on Picture Association
Appearing at request of Chair: Yes 1* 1 No Lobbyist registered with Legislature: < lves |No
While it is a Senate tradition to encourage public testimony, time may not permit all persons wishing to speak to be heard at this
meeting. Those who do speak may be asked to limit their remarks so that as many persons as possibl can be heard.
YOU MUST PRINT AND DELIVER THIS FORM TO THE ASSIGNED TESTIMONY ROOM
The Florida Senate
3/22/2021
Meeting Date
APPEARANCE RECORD SB 1542
Bill Number (if applicable)
Topic Electronic Dissemination of Co mercial Recordings and Audiovisual Works
Amendment Barcode (if applicable)
Name Edgar Castro
Job Title Lobbyist
Address 9155 S. Dadeland Blvd
Street Phone (305) 421-6304
Miami FL
City 33156 Email castro@thesouthemgroup.com
State Zip
Speaking: For Against Information
Waive Speaking: 0 In Support [ZlAgainst
(Ihe Chair will read this information into the record.)
Representing Recording Industry Association of America
Appearing at request of Chair Uy.sMno Lobbyist registered with LegM.ture: IKJYes
Yes |_|No
This form is part of the public record for this meeting.
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: SB 1542
INTRODUCER: Senator Burgess
SUBJECT: Electronic Dissemination of Commercial Recordings and Audiovisual Works
DATE: March 19, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Harmsen McKay CM Favorable
2. JU
3. RC
I. Summary:
SB 1542 subjects websites that electronically transmit, make available, or offer a commercial
recording or audiovisual work for distribution, display or performance to the Florida True Origin
of Digital Goods Act. These websites will therefore be required to post their operator’s or
owner’s contact information and will be subject to injunction for failure to do so.
The bill takes effect on July 1, 2021.
II. Present Situation:
Florida True Origin of Digital Goods Act
The True Origin of Digital Goods Act (Act)1 requires the owners or operators of websites that
electronically disseminate commercial recordings or audiovisual works to Florida consumers to
clearly post their true and correct name(s), physical address, and telephone number or e-mail
address on their website.
A website electronically disseminates a commercial recording or audiovisual work by initiating
the transmission of, making available, or otherwise offering it for distribution through the
internet or another digital network. Any website that electronically disseminates such works
must therefore post the above specific contact information.
An owner, assignee, authorized agent, or licensee of a commercial recording or audiovisual work
that appears on a website that lacks its owner’s or operator’s contact information may bring a
private cause of action to obtain a declaratory judgment that the owner or operator’s failure
violates the Act. The owner, assignee, authorized agent, or licensee of the copyrighted work may
1
Section 501.155, F.S.
BILL: SB 1542 Page 2
also request an injunction to compel the website to comply with the Act. Prior to bringing a civil
action, however, the aggrieved party must first make reasonable efforts to place the website’s
owner or operator on notice that they are violating the Act and that his or her failure to cure the
violation within 14 days may result in the filing of a civil action.
Federal Copyright Law
The owner of original, copyrighted material has the exclusive rights to do and authorize any of
the following:
Reproduce the copyrighted work;
Prepare derivative works based on the copyrighted work;
Distribute copies of the copyrighted work to the public by sale, rental, lease, or lending;
Publicly perform (or control the public performance of) the copyrighted work if it is a
literary, musical, dramatic, choreographic, pantomime, motion picture, or other audiovisual
copyrighted work;
Publicly display (or control the public display of) the copyrighted work, if it is a literary,
musical, dramatic, choreographic, pantomime, pictorial, graphic, or sculptural work—
including individual images of a motion picture or audiovisual work; and
Publicly perform sound recordings by means of a digital audio transmission.2
A display or performance is publicly available when it is (1) open or transmitted to the public or
to any place where a substantial number of persons outside of a family and its friends are
gathered, or (2) transmitted or communicated to the public through a device or process—whether
or not the viewers view it in the same place or time.3
To display a work means to show a copy of it, either directly or by means of a film, slide,
television image, or any other device or process. To perform a work means to recite, render,
play, dance, or act it, either directly or by means of any device or process.4 Generally, the only
distinction between a performance and a display of copyrighted material on the internet is that a
performance occurs in a sequential, ongoing manner, while a display is static.5
Technological advances, such as faster internet connection and more powerful computer
processors, have resulted the proliferation of streaming services, which in turn have made the
public performance and display of copyrighted works over the internet more prevalent.6
Streaming copyrighted material over the internet has clearly been interpreted to constitute a
2
17 U.S.C. §§ 106-122, Copyrights. See also, U.S. Copyright Office, Circular 1: Copyright Basics, pp. 1-2 (Dec. 2019),
https://www.copyright.gov/circs/circ01.pdf (last visited Mar. 19, 2021).
3
17 U.S.C. § 101. See also, John Kennedy, Mary Rasenberger, Lorrane Ford, Internet Law and Practice- Intellectual
Property Issues: Copyright: Public Performance and Display, §12:13 (Nov. 2020).
4
17 U.S.C.A. § 101(4). See also, Information Law- Digital Copyright and Cyberspace- Network and Internet Issues, Public
Display and Performance, ch. 4 § 4:82 (Dec. 2020).
5
Id.
6
U.S. Department of Commerce Internet Policy Task Force, White Paper on Remixes, First Sale, and Statutory Damages:
Copyright Policy, Creativity, and Innovation in the Digital Economy, p. 43 (Jan. 2016),
https://www.uspto.gov/sites/default/files/documents/copyrightwhitepaper.pdf (last visited Mar. 19, 2021). See also,
Congressional Research Service, Illegal Internet Streaming of Copyrighted Content: Legislation in the 112 th Congress (Aug.
29, 2011), https://www.everycrsreport.com/reports/R41975.html#fn19 (last visited Mar. 19, 2021).
BILL: SB 1542 Page 3
public performance by courts throughout the U.S., but if done with proper authorization to
distribute or perform the material from the copyright holder, is permissible under copyright law.7
Federal Digital Millennium Copyright Act
The Digital Millennium Copyright Act (DMCA) updated federal copyright law to address the
relationship between copyrighted material and the internet. To provide certainty regarding
liability for copyright infringement while balancing the rights of copyright holders, the DMCA
created the notice-and-takedown system.8 This system requires online service providers to
expeditiously remove infringing content after receipt of notice from a copyright holder.9 As the
internet, related consumer activity, and specifically third party posting of copyrighted content
continues to grow, so have takedown notices.10 For example, Google received take down notices
for approximately three million URLs in 2013, in 2018, it received notices identifying 882
million URLs to be taken down.11
The DMCA also requires online service providers to designate an agent to receive copyright
owners’ notices, and provide the agent’s contact information on their websites.
Protecting Lawful Streaming Act
The Consolidated Appropriations Act of 2021 created the Protecting Lawful Streaming Act
(PLSA),12 which increases the federal penalty for illegal streaming from a misdemeanor to a
felony. Current law penalizes offering copyrighted material for download without specific
license or authorization as a felony.
Specifically, the PLSA targets individuals who act (1) willfully, (2) for purposes of commercial
advantage or private financial gain, and (3) offer or provide to the public a digital transmission
service. Additionally, their digital transmission service must:13
Be primarily designed or provided for the purpose of publicly performing copyright-
protected works by digital transmission without the copyright owner’s authority;
Have no commercially-significant purpose or use other than to publicly perform copyright-
protected work by an unauthorized digital transmission; or
7
See, e.g., Warner Bros. Entertainment Inc. v. WTV Systems, Inc., 824 F. Supp.2d 1003, 1010-1011 (C.D. Cal. 2011). A&M
Records, Inc. v. Napster, Inc., 114 F. Supp.2d 896 (N.D. Cal. 2000), aff’d in relevant part, 239 F.3d 1004 (9th Cir. 2001).
8
17 U.S.C. § 512 (2)(b)-(d). U.S. Copyright Office, The Digital Millennium Copyright Act: Section 1202- Copyright
Management Information Protection, https://www.copyright.gov/dmca/ (last visited Mar. 12, 2021). See also, U.S. Copyright
Office, Section 512 Report, pp. 1, 8 (May 2020), available at https://www.copyright.gov/policy/section512/section-512-full-
report.pdf (last visited Mar. 19, 2021).
9
U.S. Copyright Office, Section 512 of Title 17: Resources on Online Service Provider Safe Harbors and Notice-and-
Takedown System (May 21, 2020), https://www.copyright.gov/512/ (last visited Mar. 19, 2021). See also, 17 U.S.C.
§§512(b)-(d)
10
See also, U.S. Copyright Office, Section 512 Report, pp. 10 (May 2020), available at
https://www.copyright.gov/policy/section512/section-512-full-report.pdf (last visited Mar. 19, 2021).
11
Id. at 31-32, citing Google, How Google Fights Piracy (2018),
https://www.blog.google/documents/25/GO806_Google_FightsPiracy_eReader_final.pdf (last visited Mar. 19, 2021).
12
18 U.S.C. 2319C, “Illicit Digital Transmission Services.”
13
See generally, Kevin Madigan, Copyright Alliance, Protecting Lawful Streaming Act Signed Into Law: What you Need to
Know (Jan. 12, 2021), https://copyrightalliance.org/protecting-lawful-streaming-act-signed/ (last visited Mar. 19, 2021).
BILL: SB 1542 Page 4
Be intentionally marketed by or at the direction of a person to promote its use in publicly
performing copyright-protected works by means of an unauthorized digital transmission.
III. Effect of Proposed Changes:
Section 1 amends s. 501.155, F.S., to expand the definition of “electronic dissemination” to
include transmitting, making available, or otherwise offering a commercial recording or
audiovisual work for distribution, display, or performance. As a result, any website that
electronically transmits, makes available, or offers a display or performance must post the
website operator’s or owner’s contact information and is subject to injunction and other
judgments under the Florida True Origin of Digital Goods Act.
The terms “display” and “performance” are not defined by Florida law.
Section 2 provides that the bill takes effect on July 1, 2021.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
For a court to exercise jurisdiction over a respondent, it must have subject matter
jurisdiction and personal jurisdiction. State courts have general jurisdiction, and therefore
a claim made under a state statute meets the subject matter jurisdiction requirement.14
Personal jurisdiction is a constitutional requirement that a respondent have minimum
contacts with the state in which the court sits so that the court may exercise power over
the respondent.15 A non-resident respondent may have sufficient contacts with Florida if
he or she commits acts expressly enumerated in Florida’s long-arm statute.16 Alternately,
the non-resident respondent may be subject to a Florida court’s personal jurisdiction
because he or she has minimum contacts with the state that are otherwise unrelated to
14
Caiazzo v. American Royal Arts Corp., 73 So. 3d 245, 250 (Fla. 4th DCA 2011).
15
Id.
16
Id; § 48.193, F.S.
BILL: SB 1542 Page 5
matter that brings him or her into court.17 Examples of sufficient minimum contacts
include frequent business travel to the state, owning a company with a Florida office
branch, or subjecting oneself to the court’s jurisdiction by presenting oneself in the
Florida court.18 These jurisdictional requirements ensure that a respondent has sufficient
notice and due process afforded to him or her under the U.S. Constitution before his or
her rights are subjected to the court.19
Whether a non-resident internet company that electronically disseminates commercial
recordings or audiovisual works into Florida has sufficient minimum contacts with the
state is a fact-specific question that would likely need to be addressed on a case-by-case
basis by a court.20
Content-neutral regulations are legitimate if they advance important governmental
interests that are not related to suppression of free speech, and do not substantially burden
more speech than necessary to further those interests.21 However, a law may be
determined to be overbroad if a “substantial number of its applications are
unconstitutional, judged in relation to the statute’s plainly legitimate sweep.”22
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
Parties involved in the litigation provided for under the Act will incur costs related to
bringing or defending the action.
C. Government Sector Impact:
Florida courts may see an increase in case filings under this law.
VI. Technical Deficiencies:
None.
VII. Related Issues:
It is unclear whether Florida could assert jurisdiction over foreign websites should an aggrieved
party attempt to enforce the disclosure requirements of this bill against a website owner or
17
Caiazzo v. American Royal Arts Corp., 73 So. 3d 245, 250 (Fla. 4th DCA 2011).
18
Id.
19
Id. at 250-251.
20
See Caiazzo v. American Royal Arts Corp., 73 So. 3d 245, (Fla. 4th DCA 2011); Zippo Mfg. Co. v. Zippo Dot Com, Inc.,
952 F. Supp. 1119, 1124 (W.D. Pa. 1997).
21
Turner Broadcasting System, Inc. v. F.C.C., 520 U.S. 180,189 (U.S. 1997).
22
U.S. v. Stevens, 559 U.S. 460 (2010), quoting, Washington State Grange v. Washington State Republican Party, 552 U.S.
442, 449, n. 6, (2008).
BILL: SB 1542 Page 6
operator located outside of Florida. It can be assumed that website owners or operators located
outside of Florida are not expected to respond to lawsuits or submit willingly to jurisdiction in
Florida courts. As such, any proceedings against owners or operators of websites located outside
of Florida would be expected to end in default judgments.
Following a default or other declaratory judgment, the aggrieved party could proceed with third
party injunctions to discourage Internet service providers, hosting services, payment services, or
other Internet website services from working with websites that fail to disclose their personal
information required by this bill. For example, ISP Terms of Service Agreements frequently
forbid the user website from engaging in illegal activity.
Due to the broad definitions of the terms “commercial recording or audiovisual work,”
“electronic dissemination,” “performance,” and “display,” with each word connoting the
broadest sense of its meaning, a broad net appears to be cast. As a result, many, if not all, private
individuals having a website may be required to disclose their true and correct name, physical
address, and telephone number or e-mail address. For example, under these definitions, a
teenager who creates her own website for the purpose of posting self-produced recordings or
audiovisual works would be required to provide the identifying information. Moreover, the true
target for the injunction and further consequences apparently are those websites that do not
provide the identifying information.
An individual may be able to display or perform a commercial recording or audiovisual work for
distribution to a sufficiently narrow group so that the act does not constitute a “public” display or
performance under federal copyright law. However, this bill does not discern between a public or
private display or performance.
VIII. Statutes Affected:
This bill substantially amends section 501.155 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2021 SB 1542
By Senator Burgess
20-00971-21 20211542__
1 A bill to be entitled
2 An act relating to electronic dissemination of
3 commercial recordings and audiovisual works; amending
4 s. 501.155, F.S.; revising the definition of the term
5 “electronic dissemination”; providing an effective
6 date.
7
8 Be It Enacted by the Legislature of the State of Florida:
9
10 Section 1. Paragraph (b) of subsection (3) of section
11 501.155, Florida Statutes, is amended to read:
12 501.155 Electronic dissemination of commercial recordings
13 or audiovisual works; required disclosures; injunctive relief.—
14 (3) DEFINITIONS.—As used in this section, the term:
15 (b) “Electronic dissemination” means initiating a
16 transmission of, making available, or otherwise offering a
17 commercial recording or audiovisual work for distribution,
18 display, or performance through the Internet or other digital
19 network, regardless of whether another person has previously
20 electronically disseminated the same commercial recording or
21 audiovisual work.
22 Section 2. This act shall take effect July 1, 2021.
Page 1 of 1
CODING: Words stricken are deletions; words underlined are additions.
CourtSmart Tag Report
Room: SB 110 Case No.: Type:
Caption: Senate Commerce Committee Judge:
Started: 3/22/2021 3:33:08 PM
Ends: 3/22/2021 5:35:16 PM Length: 02:02:09
3:33:06 PM Meeting called to order
3:33:19 PM Roll call
3:33:27 PM Quorum is present
3:33:38 PM Comments of Chair
3:34:10 PM Tab 5, CS/SB 266 by Sen. Perry
3:35:15 PM Sen. Garcia, question
3:36:10 PM Response of sponsor
3:36:14 PM Late-filed amendment 203018
3:36:29 PM Sen. Powell objected to introduction of Late-filed amendment 203018
3:36:50 PM Chair Hooper requested a roll call vote on the intro to late-filed amendment
3:37:29 PM 2/3 Majority is required, vote fails
3:38:15 PM Late-filed Amendment 203018 not introduced
3:38:47 PM Speaker,Tim Nungesser, NFIB, for the bill
3:39:56 PM Speaker, Christian Camara, Institute for Justice for the bill
3:41:09 PM Deigo Echeverri, Americans For Prosperity, waive in support
3:41:35 PM Bill Mattox, James Madison Institute, waive in support
3:41:39 PM Jess McCarty, Miami Dade County, waive Against
3:42:12 PM Sen. Powell in debate
3:42:38 PM Sen. Pizzo in debate
3:44:18 PM Chair Hooper comments on bill
3:44:55 PM Sen. Perry close on bill
3:48:16 PM Roll call on CS/SB 266
3:48:42 PM CS/SB 266 passes favorably
3:48:54 PM Tab 1, Confirmation: Dane Eagle, Ex Director for Department of Economic Opportunity
3:49:20 PM Swearing in of Dane Eagle
3:49:35 PM Mr. Eagle addresses committee
3:52:46 PM Sen. Torres question to Mr. Eagle
3:52:57 PM Response of Mr. Eagle
3:53:44 PM Follow up question of Sen. Torres
3:53:54 PM Mr. Eagle response
3:54:56 PM Sen. Pizzo wishes to address John Schrader
3:55:29 PM Mr. Schrader approaches the podium
3:55:57 PM Chair also thanks Mr. Schrader for his continued hard work
3:56:09 PM Sen. Pizzo question to Mr. Eagle
3:57:32 PM Response of Mr. Eagle
3:58:37 PM Closing remarks of Mr. Eagle
3:59:12 PM Motion to recommend confirmation by Sen. Pizzo
3:59:29 PM Roll call
3:59:35 PM Mr. Dane Eagle is confirmed by committee
3:59:54 PM Tab 2, SB 1734 by Sen. Bradley
4:00:27 PM Amendment 482404 by Sen. Bradley
4:05:07 PM Amendment to the amendment 122682 by Sen. Taddeo
4:06:10 PM Sen. Powell, question to Sen. Taddeo
4:06:23 PM Response of Sen Taddeo
4:07:41 PM Speaker, William Large,FL Justice Reform Institute, for amendment
4:09:17 PM Jake Farmer, Florida Retail Federation, waive in support
4:09:35 PM Tim Nungesser, NFIB, waive in support
4:09:41 PM Brewer Bevis, Associated Industries, waive in support
4:09:49 PM Carolyn Johnson, FL Chamber of Commerce, waive in support
4:10:25 PM Sen Bradley speaking re amendment to amendment
4:11:17 PM Sen. Taddeo close on amendment to amendment
4:12:21 PM Amendment (122682) to amendment is not adopted
4:12:32 PM Amendment to Amendment 589178 by Sen. Taddeo
4:13:17 PM Brewster Bevis, waive in support
4:13:26 PM Tim Nungesser, waive in support
4:13:36 PM William Large, speaking for the amendment to amendment
4:16:15 PM Jake Farmer, waive in support
4:16:26 PM Carolyn Johnson, waive in support
4:16:44 PM Sen. Bradley on the amendment to amendment
4:17:12 PM Amendment to amendment, Sen. Taddeo to close
4:19:23 PM Amendment (589178) to amendment is not adopted
4:19:38 PM Back on main amendment 482404
4:19:48 PM Sen. Powell question
4:20:11 PM Sen. Bradley responds
4:22:40 PM Sen. Powell follow up
4:22:50 PM Sen. Bradley in response
4:24:06 PM Sen. Hutson, question to sponsor Bradley
4:24:42 PM Response of sponsor
4:25:33 PM William Large, speaking against the main amendment
4:27:06 PM Sen. Bradley to close on amendment
4:27:23 PM Amendment (482404) adopted
4:27:56 PM William Large, speaking against the bill
4:28:06 PM Speaker Jake Farmer, against the bill
4:29:03 PM Speaker, Anthony Dimarco, FL Bankers Association against the bill
4:31:38 PM Speaker, Brewster Bevis, FL Associated Industries against the bill
4:34:57 PM John Rothell, FL Credit Union Association, waive against bill
4:35:20 PM Michael Carlson, Personal Insurance Federation of FL, waive against bill
4:35:42 PM Sen. Taddeo comments on bill
4:38:28 PM Sen. Torres in debate
4:39:51 PM Sen. Bradley to close on bill
4:43:58 PM Roll call on SB 1734
4:44:10 PM SB 1734 passes as CS favorably
4:44:29 PM Tab 3, SPB 7064 presented by Sen. Bradley
4:45:59 PM Vice Chair Wright makes motion for SPB 7064 to be reported as a committee bill
4:46:08 PM Roll call
4:46:14 PM SPB 7064 is reported favorably
4:46:34 PM Tab 4, SB 1312 by Sen. Bradley
4:47:50 PM Amendment 587156 by Sen. Bradley
4:48:22 PM Gene McGee, Seaworld Parks and Entertainment, waive in support
4:48:42 PM Sponsor waive close on amendment
4:48:50 PM Amendment adopted
4:48:56 PM Back on the bill as amended
4:49:03 PM Gene McGee, Seaworld Parks & Entertainment, waive in support of bill
4:49:10 PM Liam McClay, Santa Fe College, waive in support of bill
4:49:12 PM Megan Fay, Brevard Zoo, waive in support of bill
4:49:13 PM
4:49:40 PM Sen. Bradley close on bill
4:49:49 PM
4:50:00 PM Roll call
4:50:08 PM SB 1312 passes favorably as a CS
4:50:16 PM Tab 9, SB 1992 by Sen. Harrell
4:53:27 PM William Large, FL Justice Reform Institute, speaking for the bill
4:53:49 PM Speaker, Jared Willis, Alliance for Patient Access, for the bill
4:54:08 PM Steve Winn, Florida Osteopathic Medical Association, waive in support of bill
4:54:21 PM George Feijoo, U.S. Chamber of Commerce, waive in support of bill
4:54:28 PM Marnie George, FL Chapter American College of Cardiology, waive in support
4:54:37 PM Toni Large, FL Society of Rheurmatology, waive in support
4:54:45 PM Michael Carlson, Personal Insurance Fed. of FL, Inc., waive in support
4:54:53 PM Carolyn Johnson, FL Chamber of Commerce, waive in support
4:55:07 PM Sen. Wright in debate
4:55:35 PM Sen. Harrell close on bill
4:56:02 PM Roll call
4:56:07 PM SB 1992 passes favorably
4:56:34 PM Chair Hooper turned chair over to Vice Chair Wright
4:56:56 PM Tab 7, SB 1294 by Sen. Brodeur
4:58:07 PM Sen. Garcia question of sponsor
4:58:21 PM Response of sponsor
4:59:03 PM Sen. Garcia follow up
4:59:14 PM Response of sponsor
4:59:23 PM Sen. Torres in questions
4:59:40 PM Response of sponsor
5:00:40 PM Follow up
5:00:42 PM Reponse of sponsor
5:01:22 PM Sen. Torres in questions
5:01:35 PM Response of sponsor
5:02:07 PM Sen. Powell question
5:02:46 PM Response of sponsor
5:03:14 PM Follow up
5:03:44 PM Sponsor response
5:04:44 PM Sen. Powell in questions
5:05:16 PM Response of sponsor
5:06:07 PM Sen. Taddeo question
5:06:28 PM Response of sponsor
5:07:00 PM Follow up
5:07:23 PM Response of sponsor
5:08:24 PM Speaker, Christian Camara, Institute for Justice, for the bill
5:10:06 PM Sen. Powell, question to speaker
5:11:07 PM Response of Mr. Camara
5:12:02 PM Diego Echeverri, Americans For Prosperity, waive in support
5:12:08 PM Bill Mattox, James Madison Institute, waive in support
5:12:12 PM Tim Nungesser, NFIB, waive in support
5:12:32 PM Sen. Torres comment
5:13:31 PM Sen. Powell comments
5:14:22 PM Sen. Pizzo comments
5:15:18 PM Sen. Brodeur close on bill
5:17:15 PM Roll call
5:17:26 PM SB 1294 passes favorably
5:17:44 PM Vice Chair Wright turns chair back over the Chair Hooper
5:18:02 PM Tab 8, SB 1374 by Sen. Farmer
5:18:16 PM Sen Farmer explains bill
5:19:40 PM Sen. Farmer to close on bill
5:19:48 PM Roll call
5:19:52 PM SB 1374 passes favorably
5:20:16 PM Tab 6, SB 1140 by Sen. Rodrigues
5:22:25 PM Speaker Ritchie Engelhardt, Ancestry.com, for the bill
5:24:27 PM Sen. Torres question to speaker
5:24:47 PM Response of speaker
5:25:47 PM Sen. Rodrigues close on bill
5:26:02 PM Roll call
5:26:23 PM SB 1140 passes favorably
5:26:33 PM Tab 10, SB 1542 by Sen. Burgess
5:27:43 PM Sen. Taddeo question to sponsor
5:29:03 PM Questions and follow ups
5:30:36 PM Sen. Garcia question/comment
5:31:09 PM Sen. Powell question/comment
5:32:02 PM Sponsor response
5:32:30 PM Sen. Garcia also responds
5:32:46 PM Edgar Castro, Recording Industry Association of America, waives in support
5:32:55 PM Will McKinley, Motion Picture Association, waives in support
5:33:11 PM Sen. Burgess closes on bill
5:33:29 PM Roll call
5:33:42 PM SB 1542 passes favorably
5:33:55 PM Sen. Pizzo offers motion to vote after Yea on bills missed: Tabs 3, 4, and 9; Vote After Nay on Tab: 2
5:34:52 PM Sen. Diaz offers motion to Vote After Yea on bills missed: Tabs 1 and 5
5:34:54 PM Sen Torres moves adjournment
5:35:03 PM Meeting adjourned
File and source
- File
- 2021-03-22_post-meeting-packet_4714.pdf
- Size
- 8,905,612 bytes
- SHA-256
- 3f78e13ef1d7f5aa4750e29f894d4ac3a1260abe117c0ced9e4f03d5ca85220f
- Original
- No public link identified.