Meeting Packet - Commerce Committee (April 6, 2021)
Summary
Meeting packet of the Commerce Committee for Tuesday, April 6, 2021, 12:30 PM to 2:30 PM, with an agenda of bills for consideration that includes CS/HB 339 (Business Organizations) and CS/HB 539 (Renewable Energy). The staff analysis of CS/HB 339 says that as of October 2020, Florida has approximately 2,500,212 active business entities, and that the bill clarifies issues related to appraisal rights for shareholders who dissent from corporate or majority shareholder action. It states the bill does not appear to have a fiscal impact on state or local governments and is effective upon becoming law. The packet ends with the text of HB 7049, which has an effective date of October 1, 2021.
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Commerce Committee
Tuesday, April 6, 2021
12:30 PM – 2:30 PM
Webster Hall (212 Knott)
Meeting Packet
Chris Sprowls Blaise Ingoglia
Speaker Chair
The Florida House of Representatives
Commerce Committee
Chris Sprowls Blaise Ingoglia
Speaker Chair
Meeting Agenda
Tuesday, April 6, 2021
12:30 PM – 2:30 PM
Webster Hall (212 Knott)
I. Call to Order
II. Roll Call
III. Welcome and Opening Remarks
IV. Consideration of the following bill(s):
• CS/HB 339 Business Organizations by Regulatory Reform Subcommittee,
Robinson, W.
• CS/HB 415 Fire Department Communications by Insurance & Banking
Subcommittee, Botana
• HB 483 Electronic Legal Documents by Altman
• HB 535 Electronic Dissemination of Commercial Recordings and Audiovisual
Works by Busatta Cabrera
• CS/HB 539 Renewable Energy by Environment, Agriculture & Flooding
Subcommittee, Byrd, Roth
• CS/HB 615 Community Association Assessment Notices by Regulatory Reform
Subcommittee, Rodriguez
• CS/HB 1051 Environmental Compliance Costs by Tourism, Infrastructure &
Energy Subcommittee, Fernandez-Barquin
303 House Office Building, 402 South Monroe Street, Tallahassee, FL 32399-1300
(850) 717-4870
• CS/HB 1151 Department of Highway Safety and Motor Vehicles by Tourism,
Infrastructure & Energy Subcommittee, Brannan
• HB 1359 Pub. Rec./Department of Highway Safety and Motor Vehicles by
Brannan
• CS/HB 1431 Swimming Pool Specialty Contracting Services by Regulatory
Reform Subcommittee, McClure
• HB 1539 Pub. Rec./Department of Agriculture and Consumer Services by Jenne
• HB 6059 Composition of the Multi-use Corridors of Regional Economic
Significance Program by Shoaf
• HB 7049 OGSR/Office of Insurance Regulation by Government Operations
Subcommittee, Shoaf
V. Closing Remarks
VI. Adjournment
CS/HB 339
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 339 Business Organizations
SPONSOR(S): Regulatory Reform Subcommittee, Robinson, W.
TIED BILLS: IDEN./SIM. BILLS: CS/SB 602
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY
CHIEF
1) Regulatory Reform Subcommittee 15 Y, 1 N, As CS Wright Anstead
2) Civil Justice & Property Rights Subcommittee 15 Y, 1 N Mawn Jones
3) Commerce Committee Wright Hamon
SUMMARY ANALYSIS
As of October 2020, Florida has approximately 2,500,212 active business entities in the state, regulated under
the Florida Business Corporation Act, The Florida Revised Limited Liability Company Act, corporations not for
profit laws, and limited partnership laws.
In 2014, the Corporations, Securities, and Financial Services Committee of the Florida Bar Business Law
Section organized a drafting task force to recommend revisions to Florida business entity laws. The task
force’s effort resulted in the Legislature passing a comprehensive revision to Florida’s entity statutes.
However, the task force subsequently identified issues that needed clarification, in addition to several errors in
the enrolled bill, including grammar, punctuation, and cross reference errors, and statutory inconsistencies.
Some issues were fixed in the 2020 Session, but additional issues have since been identified.
The bill clarifies issues related to the process by which certain shareholders may dissent to corporate or
majority shareholder action by asserting their appraisal rights, which requires a corporation to buy the
shareholders’ stock at its “fair value.”
The bill also:
• Amends several provisions related to appraisal rights for minority shareholders and beneficial owners;
• Allows prepayment in appraisal actions;
• Makes correcting and conforming changes to corporation provisions; and
• Makes correcting changes to not for profit corporation and limited liability company provisions.
The bill does not appear to have a fiscal impact on state or local governments.
The bill is effective upon becoming law.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
In 1950, the American Bar Association (ABA) promulgated the Model Business Corporations Act
(MBCA), a body of laws designed to uniformly regulate United States corporations.1 However,
individual states may promulgate laws relating to the creation, organization, operation, and dissolution
of corporations and other entities in their respective jurisdictions.2
Generally, Florida regulates the following entities:3
• Business corporations;
• Nonprofit corporation;
• General partnerships, including limited liability partnerships;
• Limited partnerships, including limited liability limited partnerships;
• Limited liability companies;
• Declarations of trust; and
• Foreign entities.
As of October 2020, Florida had approximately 2,500,212 active business entities in the state,4
regulated under the Florida Business Corporation Act (FBCA),5 The Florida Revised Limited Liability
Company Act (FRLLCA),6 corporations not for profit laws,7 and limited partnership laws,8 which are now
largely modeled after the MBCA.9 In 2014, the Corporations, Securities, and Financial Services
Committee of the Florida Bar Business Law Section (FBBLS) organized a drafting task force to
recommend revisions to Florida business entity laws, last overhauled in 1989, as the ABA was in the
process of revising and modernizing the MBCA.10 The task force’s mission statement included a full
FBCA study and the proposal of revisions to:
Bring the laws in line with MBCA revisions;
Maintain Florida’s competitiveness with other jurisdictions;
Fix issues in existing law; and
Encourage the formation and use of Florida corporations.11
The task force’s effort resulted in the Legislature passing a comprehensive revision to Florida’s entity
statutes12 signed into law on June 7, 2019, with a January 1, 2020 effective date.13 However, the task
force subsequently identified issues that needed clarification, in addition to several errors in the
enrolled bill, including grammar, punctuation, cross reference errors, and statutory inconsistencies.14
Some issues were fixed in the 2020 Session,15 but additional issues have since been identified.16
1 William H. Clark, Jr., The Relationship of the Model Business Corporation Act to Other Entity Laws, Law and Contemporary Problems
Vol. 74, No. 57, https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1609&context=lcp (last visited Mar. 26, 2021).
2 Id.
3 S. 605.0102(23), F.S; Title XXXVI, F.S.
4 The Florida Department of State, Division of Corporations, Yearly Statistics, https://dos.myflorida.com/sunbiz/about-us/yearly-
statistics/ (last visited Mar. 26, 2021).
5 Ch. 607, F.S.
6 Ch. 605, F.S.
7 Ch. 617, F.S.
8 Ch. 620, F.S.
9 The Florida Bar Business Law Section, Proposed Modifications to Chapter 607 (Florida Business Corporation Act), (Jan. 24, 2019).
10 Id.
11 Id.
12 These included the Florida Revised Limited Liability Company Act of ch. 605, F.S., and the Florida Not for Profit Corporation Act of
ch. 617, F.S.
13 Ch. 2019-90, L.O.F., in CS/CS/HB 1009 (2019).
14 The Florida Bar Business Law Section (FBBLS), White Paper for S.B. [838] & H.B. [495]: “An Act Relating to Business
Organizations,” (Oct. 21, 2019).
15 Ch. 2020-32, L.O.F., in CS/SB 838 (2020).
16 Florida Bar Business Law Section (FBBLS), Chapter 607 Drafting Subcommittee, White Paper for S.B. 602 & H.B. 339: An Act
Relating to Corporations and Other Entities, 1-2 (Feb. 2021).
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Appraisal Rights for Corporation Shareholders
Triggers of Appraisal Rights for Minority Shareholders – Current Situation
Minority shareholders may dissent to corporate or majority shareholder action by asserting their
appraisal rights, pursuant to ss. 607.1301-607.1340, F.S., which requires a corporation to buy the
minority shareholders’ stock at its “fair value.”17 This remedy is one of the few protections against
actions that “… fundamentally change the nature of the shareholders’ investments without the check
and balance of informed shareholder approval, and [provide] the opportunity for dissenters to withdraw
from the corporation.”18 The appraisal process is effectuated through a judicial hearing, where a court
appraises the fair value of the shareholder’s interests and assesses the corporation for payment of both
the fair value and any accrued interest, calculated according to s. 55.03, F.S.
A minority shareholder may assert his or her appraisal rights only in specific instances where a
fundamental corporate change occurs, including (and subject to substantial restrictions and limits) the
domestication or conversion to another type of business entity, a merger or share exchange, a
disposition of all or substantially all of the corporation’s assets, an amendment to the corporation’s
articles of incorporation that creates fractional shares, and in other cases involving a corporation’s
articles of incorporation, bylaws, or a resolution of its board of directors.19, 20 For example, in s.
607.1302(1)(g), F.S., shareholders may assert appraisal rights where an amendment to the articles of
incorporation or bylaws adversely alters or abolishes the shareholder’s voting rights or other rights.21
Also, in s. 607.1302(1)(h), F.S., a shareholder of a class of shares prescribed in an articles of
incorporation prior to October 1, 2003, including any shares within that class subsequently authorized
by amendment, is entitled to appraisal rights if there is amendment of the articles of incorporation on
which the shareholder is entitled to vote and such amendment would adversely affect such shareholder
by certain actions to reduce shares, value of the shares, and voting rights.22
Triggers for Appraisal Rights for Minority Shareholders – Effect of the Bill
The bill narrows the instances that trigger a minority shareholder’s appraisal rights by deleting the
provision allowing shareholders to assert appraisal rights where an amendment to the articles of
incorporation or bylaws adversely alters or abolishes the shareholder’s voting or other rights. However,
the bill allows shareholders in a corporation with 100 or fewer shareholders, whose shares were
authorized on, or after October 1, 2003, the same appraisal rights as granted in s. 607.1302(1)(h), F.S.
Minority shareholders may still assert their appraisal rights under several other bases enumerated in s.
607.1302(1), F.S.
Market Out Exception to Appraisal Rights – Current Situation
What is commonly called the “market out exception” means that appraisal rights are unavailable for
certain shareholders in certain situations and the shareholders must either accept the adverse
corporate action or sell their shares in an organized market.23 The theory behind the "market out"
exception is that the shareholder, if dissatisfied with the proposed corporate action, can choose to sell
the shares into an organized market that is liquid and where the value of the shares is reasonably
calculated to arrive at a price reflective of an arm's length transaction.24
17 S. 607.1302(1), F.S.; S. 607.1301(5), F.S., defines “fair value” as the value of the corporation’s shares immediately before the
effectiveness of the corporate action in question, using commonly-used valuation concepts and techniques, without discounting for lack
of marketability or minority status of the shares.
18 Gregory Yadley and Christina Nethero, Florida Corporate Practice: Appraisal Rights s. 11:1 (2020); see also, South End
Improvement Group, Inc. by & through Bank of New York v. Mulliken, 602 So. 2d 1327, 1332 (Fla. 4th DCA 1992).
19 Section 607.1302(1), F.S.
20 Gregory Yadley and Christina Nethero, Florida Corporate Practice: Appraisal Rights s. 11:2.C (2020).
21 S. 607.1302(1)(g), F.S.
22 S. 607.1302(1)(h), F.S.
23 FBBLS, supra note 16, at 4.
24 Id.
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Thirty-eight states, including Florida, operate under the market out exception, which restricts the
appraisal rights available to shareholders of stock in large or publicly traded corporations. “[P]ublic
shareholders presumptively have an available market. [W]hen a public market exists…, public
shareholders must employ market price instead of court-appraisal as the measure of their interests.”25
In Florida, the market out exception excludes shareholders from asserting appraisal rights if:26
• Their triggering action is:
o Consummation of a domestication or a conversion of such corporation, if shareholder
approval is required for the domestication or the conversion;
o Consummation of a merger to which such corporation is a party, in certain situations;
o Consummation of a share exchange to which the corporation is a party as the corporation
whose shares will be acquired, except any shareholder of the corporation with respect to
any class or series of shares that is not acquired in the share exchange;
o Consummation of a disposition of assets if the shareholder is entitled to vote on the
disposition, including a sale in dissolution, in certain situations; or
o An amendment of the articles of incorporation with respect to a class or series of shares
which reduces the number of shares of a class or series owned by the shareholder to a
fraction of a share if the corporation has the obligation or the right to repurchase such
fractional share; and
• Their shares are:
o A covered security;
o Not a covered security, but are traded in an organized market; or
o Issued by an open end management investment company that is registered with the
Securities and Exchange Commission.
Whether the market out exception applies is determined as of:
• The record date fixed to determine the shareholders entitled to receive notice of the meeting of
shareholders to act upon the corporate action requiring appraisal rights, or the date of offer for a
merger or share exchange; or
• If there will be no meeting of shareholders and no offer of a merger or share exchange is made,
the close of business on the day before the consummation of the corporate action or the
effective date of the amendment of the articles, as applicable.
“Record date” means the date fixed for determining the identity of the corporation’s shareholders and
their share holdings. Unless another time is specified when the record date is fixed, the determination is
made as of the close of business at the principal office of the corporation on the date so fixed.27
Market Out Exception to Appraisal Rights – Effect of the Bill
The bill broadens the market out exception by prohibiting appraisal actions asserted in connection with
a corporation’s merger, share exchange, or disposition of corporate assets (as permitted by the
corporation’s articles of incorporation or bylaws), or those that adversely affect a shareholder of a
closely held corporation or a shareholder who holds shares issued prior to October 1, 2003.
The bill also provides that the market out exception applies where the shares held are not a covered
security, but traded in an organized market or subject to a “comparable trading process.” The bill
defines a “comparable trading process” as one where the:
• Share’s market price is determined at least quarterly based on an independent valuation and by
following a formalized process that is designed to determine a value for the corporation’s shares
that is comparable to the value of a comparable publicly traded companies; and
• Corporation repurchases the shares at pricing set by its board of directors based on the
independent valuation and subject to established terms and conditions that have been provided
to the shareholders.
25 Gil Matthews, The “Market Exception” in Appraisal Statutes, (Mar. 30, 2020), https://corpgov.law.harvard.edu/2020/03/30/the-market-
exception-in-appraisal-statues/ (last visited Mar. 26, 2021).
26 S. 607.1302(2), F.S.
27 S. 607.01401(63), F.S.
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The bill clarifies that, in cases in which the triggering corporate action must be approved by
shareholders’ written consent, the applicability of the market share exception must be decided at the
point at which the record date was fixed to determine which shareholders are entitled to sign the
consent.
Assertion of Appraisal Rights by Nominees and Beneficial Owners - Current Situation
“Record shareholder” means the person:28
• In whose name shares are registered in the records of the corporation; or
• Identified as a beneficial owner of shares in the beneficial ownership certificate on file with the
corporation to the extent of the rights granted by such certificate.
“Beneficial shareholder” means a person who owns the beneficial interest in shares. Such person may
be a record shareholder or a person on whose behalf shares are registered in the name of an
intermediary or nominee.29 Generally, an intermediary or a nominee holds legal ownership of a security,
including shares, while beneficial ownership is held by someone else who receives all dividends and
other benefits of ownership.30
A record shareholder may assert appraisal rights as to fewer than all the shares registered in the record
shareholder’s name but owned by a beneficial shareholder or a voting trust beneficial owner only if the
record shareholder:31
• Objects with respect to all shares of the class or series owned by the beneficial shareholder or
the voting trust beneficial owner; and
• Notifies the corporation in writing of the name and address of each beneficial shareholder or
voting trust beneficial owner on whose behalf appraisal rights are being asserted.
The rights of a record shareholder who asserts appraisal rights for only part of the shares held in the
record shareholder’s name under this subsection are determined as if the shares as to which the record
shareholder objects and the record shareholder’s other shares were registered in the names of different
record shareholders.32
A beneficial shareholder and a voting trust beneficial owner may assert appraisal rights as to shares of
any class or series held on behalf of the shareholder only if such shareholder:33
• Submits to the corporation the record shareholder’s written consent to the assertion of such
rights no later than the date referred to in s. 607.1322(2)(b)2; and
• Does so with respect to all shares of the class or series that are beneficially owned by the
beneficial shareholder or the voting trust beneficial owner.
Currently, a shareholder who wishes to demand an appraisal rights payment from the corporation must
take certain actions before the triggering corporate action is effectuated.34 There is no specific
requirement for when shares must have been beneficially owned to be able to demand payment.
FBBLS has identified perceived abuses associated with appraisal rights being simultaneously bought
and sold (arbitrage), stemming from most simultaneous buyers and sellers of appraisal rights
(arbitrageurs) not being historical shareholders of the corporation, but rather those who purchase their
shares after the announcement date of, or record date for, the meeting at which the corporate action is
to be voted upon, or the effective date of the written consent approving such corporate action.35
28 S. 607.01401(64), F.S.
29 S. 607.01401(7), F.S.
30 The Free Dictionary by Farlex, The Financial Dictionary, Nominee, https://financial-dictionary.thefreedictionary.com/nominee (last
visited Mar. 26, 2021).
31 S. 607.1303(1), F.S.
32 Id.
33 S. 607.1303(2), F.S.
34 S. 607.1321
35 FBBLS, supra note 16, at 8.
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Assertion of Appraisal Rights by Nominees and Beneficial Owners – Effect of the Bill
The bill requires a beneficial shareholder who wishes to assert his or her appraisal rights and demand
payment to have a beneficial ownership in their shares in the corporation by the record date established
for the triggering corporate action.
The bill provides that a record shareholder asserting appraisal rights as to fewer than all the shares
registered in the record shareholder’s name but owned by a beneficial shareholder or a voting trust
beneficial owner may only do so if the beneficial shareholder or voting trust beneficial owner acquired
all of their shares before the record date for the triggering corporate action.
Award of Accrued Interest in an Appraisal Action – Current Situation
Currently, “accrued interest” as it applies to interest on payments made pursuant to an assertion of
one’s appraisal rights is calculated at the statutory judgment interest rate as described in s. 55.03,
F.S.36 The interest rate, set by the Chief Financial Officer on December 1, March 1, June 1, and
September 1 of each year, is payable on judgments for the calendar quarter beginning January 1, and
adjusted quarterly on April 1, July 1, and October 1 by averaging the discount rate of the Federal
Reserve Bank of New York for the preceding 12 months, then adding 400 basis points.37
Award of Accrued Interest in an Appraisal Action – Effect of the Bill
The bill amends the definition of “accrued interest” to require the parties in an appraisal action either to
agree to an interest rate between themselves, or to accept a rate determined by a court to be equitable.
The court’s rate may not exceed the statutory judgment rate described in s. 55.03, F.S. Additionally, the
bill allows a court to prohibit the payment of interest where it finds that the shareholder who asserted
his or her appraisal rights acted arbitrarily or not in good faith.
The bill also makes conforming changes to reflect both that the rate of interest is variable and that a
court may choose not to award accrued interest pursuant to the amended definition of the term.
Prepayment in an Appraisal Action – Current Situation
Currently, there is no provision allowing prepayment of the fair value of shares that are the subject of a
shareholder’s appraisal action to a shareholder. FBBLS argues that allowing such prepayment would
shorten the amount of time during which interest can accrue, and therefore mitigates risk to the
corporation.38
Prepayment in an Appraisal Action – Effect of the Bill
The bill gives corporations the option to prepay the fair value of the shares that are the subject of a
shareholder’s appraisal action, and requires such shareholder to accept such prepayment. Specifically,
the bill allows the corporation to prepay all, or any part of the amount, that it determines is due to the
shareholder. If the corporation makes the prepayment within 90 days after the appraisal notice, then the
corporation may only be liable for the accrued interest on any amount above what it prepaid to the
shareholder. If the corporation makes a payment after the 90-day period, but before a judicial
determination of the interest due, then the corporation must prepay interest at the statutory judgment
rate provided for in s. 55.03, F.S., and may be liable for additional interest on any excess payment due,
calculated from the date the corporate action became effective.
The bill makes conforming changes to acknowledge the prepayment options provided in the bill.
Name of a Dissolved Entity – Current Situation
36 S. 607.1301(1), F.S.
37 S. 55.03(1), F.S.
38 FBBLS, supra note 16, at 8.
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Currently, the name of a dissolved corporation is not available for use by another corporation for one
year after the effective date of dissolution, unless the dissolved corporation gives certain consent.39
Previous to 2019, the time period was 120 days.40 FBBLS indicates that the change was inadvertent
and should go back to the 120 day time period previously authorized.41
Name of a Dissolved Entity – Effect of the Bill
The bill reverts to the 120-day period, and makes a non-substantive conforming change.
Property Associations and Not-For-Profit Corporations
Committee Requirements – Current Situation
Section 617.0825, F.S., outlines requirements for not for profit corporation board and advisory
committees. Such requirements do not apply to board or advisory committees established under:
• Chapter 718, F.S., relating to condominium associations, to perform functions under s.
718.303(3), relating to levying fines for violating the declaration, bylaws, or rules;
• Chapter 719, F.S., relating to cooperative associations, to perform the functions under s.
719.303(3), relating to levying fines for violating the documents or rules; or
• Chapter 720, F.S., relating to homeowners’ associations, to perform functions under s.
720.303(2), relating to board meetings, or s. 720.3035(1), relating to architectural and
construction improvements.
Committee Requirements – Effect of the Bill
The bill revises the property association activity committees which are exempt from the not for profit
corporation advisory committee requirements. The bill removes homeowners’ association committees
related to board meetings, and adds homeowners’ association committees related to levying fines for
violating the declaration, bylaws, or rules and reviving covenants.
Quorum Requirements – Current Situation
Currently, an amendment to the articles of incorporation or the bylaws of any not for profit corporation
which adds, changes, or deletes a quorum or voting requirement must meet the same quorum or voting
requirement and be adopted by the same vote and voting groups required to take action under the
quorum and voting requirements then in effect or proposed to be adopted, whichever is greater.42
39 S. 607.1405, F.S.
40 Ch. 2019-90, L.O.F.
41 FBBLS, supra note 16, at 9.
42 S. 617.0725, F.S.
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Quorum Requirements – Effect of the Bill
The bill exempts not for profit corporations that are condominium, cooperative, or homeowners’
associations from not for profit corporation requirements for amending articles of incorporation or
bylaws for a not for profit corporation in a way that changes quorum or voting requirements.
Application of Not For Profit Corporations Chapter to Community Associations – Current Situation
Currently, in the event of any conflict between the provisions of chapter 617, F.S., for not for profit
corporations, and chapters regarding community associations (chapter 718, F.S., regarding
condominiums, chapter 719, F.S., regarding cooperatives, chapter 720, F.S., regarding homeowners’
associations, chapter 721, F.S., regarding timeshares, or chapter 723, F.S., regarding mobile home
owners’ associations), the provisions of the applicable community association chapter applies where an
exception is carved out.43
Application of Not For Profit Corporations Chapter to Community Associations – Effect of the Bill
The bill clarifies that chapter 617, F.S., applies to such community associations, except where there is a
conflict, and then the chapters for community associations apply.
Access to Records for Limited Liability Companies – Current Situation
Currently, during regular business hours and at a reasonable location specified by the company, a
member may inspect and copy:44
• The company records; and
• Full information regarding the activities, affairs, financial condition, and other circumstances of
the company as is just and reasonable if the member:
• Seeks the information for a purpose reasonably related to the member’s interest as a
member; or
• Makes a demand in a record received by the company, describing with reasonable
particularity the information sought and the purpose for seeking the information, and if
the information sought is directly connected to the member’s purpose.
Access to Records for Limited Liability Companies – Effect of the Bill
The bill clarifies that in order for a member to access full information regarding the activities, affairs,
financial condition, and other circumstances of the company, such member must both:
Seek the information for a purpose reasonably related to the member’s interest as a member;
and
Make a demand in a record received by the company, describing with reasonable particularity
the information sought and the purpose for seeking the information, and if the information
sought is directly connected to the member’s purpose.
The bill updates cross-references to correct scrivener’s errors.
The bill takes effect upon becoming law.
B. SECTION DIRECTORY:
Section 1: Amends s. 605.0410, F.S., relating to inspection rights of certain company records.
Section 2: Amends s. 607.1301, F.S., relating to appraisal rights; definition of “accrued interest.”
Section 3: Amends s. 607.1302, F.S., relating to shareholder appraisal rights.
Section 4: Amends s. 607.1303, F.S., relating to assertion of rights by nominees and beneficial
owners.
Section 5: Amends s. 607.1321, F.S., relating to notice of intent to demand payment.
43 S. 617.1703, F.S.
44 S. 605.0410(3), F.S.
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Section 6: Amends s. 607.1322, F.S., relating to appraisal notice and form.
Section 7: Amends s. 607.1326, F.S., relating to prepayments to a shareholder.
Section 8: Amends s. 607.1330, F.S., relating to proceedings for demands for payment.
Section 9: Amends s. 607.1405, F.S., relating to effect of dissolution.
Section 10: Amends s. 617.0825, F.S., relating to certain property association committees.
Section 11: Amends s. 617.1703, F.S., relating to application of chapter to property associations.
Section 12: Provides an effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On March 8, 2021, the Regulatory Reform Subcommittee adopted one amendment and reported the bill
favorably as a committee substitute. The committee substitute provides that requirements to amend articles of
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incorporation or bylaws for a not for profit corporation in a way that changes quorum or voting requirements are
not applicable to corporations that are condominium, cooperative, or homeowners’ associations.
This analysis is drafted to the committee substitute as passed by the Regulatory Reform Subcommittee.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 339 2021
1 A bill to be entitled
2 An act relating to business organizations; amending s.
3 605.0410, F.S.; revising requirements relating to
4 inspecting certain records of limited liability
5 companies; amending s. 607.1301, F.S.; revising the
6 definition of the term "accrued interest"; amending s.
7 607.1302, F.S.; revising the circumstances under which
8 shareholders are entitled to appraisal rights and
9 certain payments; revising limitations relating to
10 such rights and payments; revising applicability;
11 amending s. 607.1303, F.S.; revising the circumstances
12 in which certain shareholders may assert specified
13 appraisal rights; amending s. 607.1321, F.S.; revising
14 requirements for shareholders who wish to assert
15 appraisal rights relating to specified corporate
16 actions; amending s. 607.1322, F.S.; making a
17 technical change; amending s. 607.1326, F.S.;
18 entitling corporations to prepay a shareholder if the
19 shareholder makes a demand for payment; specifying
20 when interest is applicable to such prepayments;
21 making technical changes; amending s. 607.1330, F.S.;
22 revising requirements for proceedings relating to
23 unsettled demands for payment; revising the
24 eligibility requirements for shareholders entitled to
25 the fair value of shares during court proceedings;
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26 making technical and conforming changes; amending s.
27 607.1405, F.S.; revising the requirements for eligible
28 entities to use the name of a dissolved corporation;
29 amending s. 617.0725, F.S.; providing applicability;
30 amending ss. 617.0825 and 617.1703, F.S.; revising
31 applicability; providing an effective date.
32
33 Be It Enacted by the Legislature of the State of Florida:
34
35 Section 1. Paragraph (b) of subsection (3) of section
36 605.0410, Florida Statutes, is amended to read:
37 605.0410 Records to be kept; rights of member, manager,
38 and person dissociated to information.—
39 (3) In a manager-managed limited liability company, the
40 following rules apply:
41 (b) During regular business hours and at a reasonable
42 location specified by the company, a member may inspect and
43 copy:
44 1. The records described in subsection (1); and
45 2. Full information regarding the activities, affairs,
46 financial condition, and other circumstances of the company as
47 is just and reasonable if:
48 a. The member seeks the information for a purpose
49 reasonably related to the member's interest as a member; and or
50 b. The member makes a demand in a record received by the
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51 company, describing with reasonable particularity the
52 information sought and the purpose for seeking the information,
53 and if the information sought is directly connected to the
54 member's purpose.
55 Section 2. Subsection (1) of section 607.1301, Florida
56 Statutes, is amended to read:
57 607.1301 Appraisal rights; definitions.—The following
58 definitions apply to ss. 607.1301-607.1340:
59 (1) "Accrued interest" means interest from the date the
60 corporate action becomes effective until the date of payment, at
61 the rate agreed to by the corporation and the shareholder
62 asserting appraisal rights, or at the rate determined by the
63 court to be equitable, which rate may not be greater than the
64 rate of interest of interest determined for judgments pursuant
65 to s. 55.03; however, if the court finds that the shareholder
66 asserting appraisal rights acted arbitrarily or otherwise not in
67 good faith, no interest shall be allowed by the court,
68 determined as of the effective date of the corporate action.
69 Section 3. Subsections (1) and (2) of section 607.1302,
70 Florida Statutes, are amended to read:
71 607.1302 Right of shareholders to appraisal.—
72 (1) A shareholder of a domestic corporation is entitled to
73 appraisal rights, and to obtain payment of the fair value of
74 that shareholder's shares, in the event of any of the following
75 corporate actions:
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76 (a) Consummation of a domestication or a conversion of
77 such corporation pursuant to s. 607.11921 or s. 607.11932, as
78 applicable, if shareholder approval is required for the
79 domestication or the conversion;
80 (b) Consummation of a merger to which such corporation is
81 a party:
82 1. If shareholder approval is required for the merger
83 under s. 607.1103 or would be required but for s. 607.11035,
84 except that appraisal rights shall not be available to any
85 shareholder of the corporation with respect to shares of any
86 class or series that remains outstanding after consummation of
87 the merger where the terms of such class or series have not been
88 materially altered; or
89 2. If such corporation is a subsidiary and the merger is
90 governed by s. 607.1104;
91 (c) Consummation of a share exchange to which the
92 corporation is a party as the corporation whose shares will be
93 acquired, except that appraisal rights shall not be are not
94 available to any shareholder of the corporation with respect to
95 any class or series of shares of the corporation that is not
96 acquired in the share exchange;
97 (d) Consummation of a disposition of assets pursuant to s.
98 607.1202 if the shareholder is entitled to vote on the
99 disposition, including a sale in dissolution, except that
100 appraisal rights shall not be available to any shareholder of
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101 the corporation with respect to shares or any class or series
102 if:
103 1. Under the terms of the corporate action approved by the
104 shareholders there is to be distributed to shareholders in cash
105 the corporation's net assets, in excess of a reasonable amount
106 reserved to meet claims of the type described in ss. 607.1406
107 and 607.1407, within 1 year after the shareholders' approval of
108 the action and in accordance with their respective interests
109 determined at the time of distribution; and
110 2. The disposition of assets is not an interested
111 transaction;
112 (e) An amendment of the articles of incorporation with
113 respect to a class or series of shares which reduces the number
114 of shares of a class or series owned by the shareholder to a
115 fraction of a share if the corporation has the obligation or the
116 right to repurchase the fractional share so created;
117 (f) Any other merger, share exchange, disposition of
118 assets, or amendment to the articles of incorporation, in each
119 case to the extent provided as of the record date by the
120 articles of incorporation, bylaws, or a resolution of the board
121 of directors providing for appraisal rights, except that no
122 bylaw or board resolution providing for appraisal rights may be
123 amended or otherwise altered except by shareholder approval;
124 (g) An amendment to the articles of incorporation or
125 bylaws of the corporation, the effect of which is to alter or
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126 abolish voting or other rights with respect to such interest in
127 a manner that is adverse to the interest of such shareholder,
128 except as the right may be affected by the voting or other
129 rights of new shares then being authorized of a new class or
130 series of shares;
131 (h) An amendment to the articles of incorporation or
132 bylaws of a corporation, the effect of which is to adversely
133 affect the interest of the shareholder by altering or abolishing
134 appraisal rights under this section;
135 (h)(i) With regard to a class of shares prescribed in the
136 articles of incorporation in any corporation as to which that
137 particular class of shares was in existence prior to October 1,
138 2003, including any shares within that class subsequently
139 authorized by amendment, and for classes of shares authorized on
140 or after October 1, 2003, in any corporation with 100 or fewer
141 shareholders prior to October 1, 2003, including any shares
142 within that class subsequently authorized by amendment, any
143 amendment of the articles of incorporation if the shareholder is
144 entitled to vote on the amendment and if such amendment would
145 adversely affect such shareholder by:
146 1. Altering or abolishing any preemptive rights attached
147 to any of his, her, or its shares;
148 2. Altering or abolishing the voting rights pertaining to
149 any of his, her, or its shares, except as such rights may be
150 affected by the voting rights of new shares then being
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151 authorized of any existing or new class or series of shares;
152 3. Effecting an exchange, cancellation, or
153 reclassification of any of his, her, or its shares, when such
154 exchange, cancellation, or reclassification would alter or
155 abolish the shareholder's voting rights or alter his, her, or
156 its percentage of equity in the corporation, or effecting a
157 reduction or cancellation of accrued dividends or other
158 arrearages in respect to such shares;
159 4. Reducing the stated redemption price of any of the
160 shareholder's redeemable shares, altering or abolishing any
161 provision relating to any sinking fund for the redemption or
162 purchase of any of his, her, or its shares, or making any of
163 his, her, or its shares subject to redemption when they are not
164 otherwise redeemable;
165 5. Making noncumulative, in whole or in part, dividends of
166 any of the shareholder's preferred shares which had theretofore
167 been cumulative;
168 6. Reducing the stated dividend preference of any of the
169 shareholder's preferred shares; or
170 7. Reducing any stated preferential amount payable on any
171 of the shareholder's preferred shares upon voluntary or
172 involuntary liquidation;
173 (i)(j) An amendment of the articles of incorporation of a
174 social purpose corporation to which s. 607.504 or s. 607.505
175 applies;
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176 (j)(k) An amendment of the articles of incorporation of a
177 benefit corporation to which s. 607.604 or s. 607.605 applies;
178 (k)(l) A merger, domestication, conversion, or share
179 exchange of a social purpose corporation to which s. 607.504
180 applies; or
181 (l)(m) A merger, domestication, conversion, or share
182 exchange of a benefit corporation to which s. 607.604 applies.
183 (2) Notwithstanding subsection (1), the availability of
184 appraisal rights under paragraphs (1)(a), (b), (c), (d), and
185 (e), (f), and (h) shall be limited in accordance with the
186 following provisions:
187 (a) Appraisal rights shall not be available for the
188 holders of shares of any class or series of shares which is:
189 1. A covered security under s. 18(b)(1)(A) or (B) of the
190 Securities Act of 1933;
191 2. Not a covered security, but traded in an organized
192 market (or subject to a comparable trading process) and has at
193 least 2,000 shareholders and the outstanding shares of such
194 class or series have a market value of at least $20 million,
195 exclusive of the value of outstanding shares held by the
196 corporation's subsidiaries, by the corporation's senior
197 executives, by the corporation's directors, and by the
198 corporation's beneficial shareholders and voting trust
199 beneficial owners owning more than 10 percent of the outstanding
200 shares; or
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201 3. Issued by an open end management investment company
202 registered with the Securities and Exchange Commission under the
203 Investment Company Act of 1940 and which may be redeemed at the
204 option of the holder at net asset value.
205 (b) The applicability of paragraph (a) shall be determined
206 as of:
207 1. The record date fixed to determine the shareholders
208 entitled to receive notice of the meeting of shareholders to act
209 upon the corporate action requiring appraisal rights, the record
210 date fixed to determine the shareholders entitled to sign a
211 written consent approving the corporate action requiring
212 appraisal rights, or, in the case of an offer made pursuant to
213 s. 607.11035, the date of such offer; or
214 2. If there will be no meeting of shareholders, no written
215 consent approving the corporate action, and no offer is made
216 pursuant to s. 607.11035, the close of business on the day
217 before the consummation of the corporate action or the effective
218 date of the amendment of the articles, as applicable.
219 (c) Paragraph (a) is not applicable and appraisal rights
220 shall be available pursuant to subsection (1) for the holders of
221 any class or series of shares where the corporate action is an
222 interested transaction.
223 (d) For the purposes of subparagraph (a)2., a comparable
224 trading process exists if:
225 1. The market price of the corporation's shares is
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226 determined at least quarterly based on an independent valuation
227 and by following a formalized process that is designed to
228 determine a value for the corporation's shares that is
229 comparable to the value of comparable publicly traded companies;
230 and
231 2. The corporation repurchases the shares at the price set
232 by its board of directors based upon the independent valuation
233 and subject to certain terms and conditions established by the
234 corporation and provides the corporation's shareholders with a
235 trading market comparable to that typically available had the
236 corporation's shares been traded in an organized market.
237 Section 4. Subsection (1) of section 607.1303, Florida
238 Statutes, is amended, and paragraph (c) is added to subsection
239 (2) of that section, to read:
240 607.1303 Assertion of rights by nominees and beneficial
241 owners.—
242 (1) A record shareholder may assert appraisal rights as to
243 fewer than all the shares registered in the record shareholder's
244 name but owned by a beneficial shareholder or a voting trust
245 beneficial owner only if:
246 (a) The record shareholder objects with respect to all
247 shares of the class or series owned by the beneficial
248 shareholder or the voting trust beneficial owner;
249 (b) The particular beneficial shareholder or voting trust
250 beneficial owner acquired all such shares before the record date
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251 established under s. 607.1321 in connection with the applicable
252 corporate action; and
253 (c) The record shareholder and notifies the corporation in
254 writing of its the name and address (if the record shareholder
255 beneficially owns the shares as to which appraisal rights are
256 being asserted) or notifies the corporation in writing of the
257 name and address of the particular of each beneficial
258 shareholder or voting trust beneficial owner on whose behalf
259 appraisal rights are being asserted.
260
261 The rights of a record shareholder who asserts appraisal rights
262 for only part of the shares held of record in the record
263 shareholder's name under this subsection shall be determined as
264 if the shares as to which the record shareholder objects and the
265 record shareholder's other shares were registered in the names
266 of different record shareholders.
267 (2) A beneficial shareholder and a voting trust beneficial
268 owner may assert appraisal rights as to shares of any class or
269 series held on behalf of the shareholder only if such
270 shareholder:
271 (c) Acquired all shares of the class or series before the
272 record date established under s. 607.1321 in connection with the
273 applicable corporate action.
274 Section 5. Subsections (1), (2), and (3) of section
275 607.1321, Florida Statutes, are amended to read:
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276 607.1321 Notice of intent to demand payment.—
277 (1) If a proposed corporate action requiring appraisal
278 rights under s. 607.1302 is submitted to a vote at a
279 shareholders' meeting, a shareholder who wishes to assert
280 appraisal rights with respect to any class or series of shares:
281 (a) Must have beneficially owned the shares of such class
282 or series as of the record date for the shareholders' meeting at
283 which the proposed corporate action is to be submitted to a
284 vote;
285 (b) Must deliver to the corporation before the vote is
286 taken written notice of the shareholder's intent, if the
287 proposed corporate action is effectuated, to demand payment for
288 all shares of such class or series beneficially owned by the
289 shareholder as of the record date for the shareholders' meeting
290 at which the proposed corporate action is to be submitted to a
291 vote if the proposed corporate action is effectuated; and
292 (c)(b) Must not vote, or cause or permit to be voted, any
293 shares of such class or series in favor of the proposed
294 corporate action.
295 (2) If a proposed corporate action requiring appraisal
296 rights under s. 607.1302 is to be approved by written consent, a
297 shareholder who wishes to assert appraisal rights with respect
298 to any class or series of shares:
299 (a) Must have beneficially owned the shares of such class
300 or series as of the record date established for determining who
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301 is entitled to sign a written consent;
302 (b) Must assert such appraisal rights for all shares of
303 such class or series beneficially owned by the shareholder as of
304 the record date for determining who is entitled to sign the
305 written consent; and
306 (c) Must not sign a consent in favor of the proposed
307 corporate action with respect to that class or series of shares.
308 (3) If a proposed corporate action specified in s.
309 607.1302(1) does not require shareholder approval pursuant to s.
310 607.11035, a shareholder who wishes to assert appraisal rights
311 with respect to any class or series of shares:
312 (a) Must have beneficially owned the shares of such class
313 or series as of the date the offer to purchase is made pursuant
314 to s. 607.11035;
315 (b) Must deliver to the corporation before the shares are
316 purchased pursuant to the offer a written notice of the
317 shareholder's intent to demand payment if the proposed corporate
318 action is effected for all shares of such class or series
319 beneficially owned by the shareholder as of the date the offer
320 to purchase is made pursuant to s. 607.11035; and
321 (c)(b) Must not tender, or cause or permit to be tendered,
322 any shares of such class or series in response to such offer.
323 Section 6. Paragraph (a) of subsection (2) of section
324 607.1322, Florida Statutes, is amended to read:
325 607.1322 Appraisal notice and form.—
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326 (2) The appraisal notice must be delivered no earlier than
327 the date the corporate action became effective, and no later
328 than 10 days after such date, and must:
329 (a) Supply a form that specifies the date that the
330 corporate action became effective and that provides for the
331 shareholder to state:
332 1. The shareholder's name and address.
333 2. The number, classes, and series of shares as to which
334 the shareholder asserts appraisal rights.
335 3. That the shareholder did not vote for or consent to the
336 transaction.
337 4. Whether the shareholder accepts the corporation's offer
338 as stated in subparagraph (b)4.
339 5. If the offer is not accepted, the shareholder's
340 estimated fair value of the shares and a demand for payment of
341 the shareholder's estimated value plus accrued interest, if and
342 to the extent applicable.
343 Section 7. Section 607.1326, Florida Statutes, is amended
344 to read:
345 607.1326 Procedure if shareholder is dissatisfied with
346 offer.—
347 (1) A shareholder who is dissatisfied with the
348 corporation's offer as set forth pursuant to s. 607.1322(2)(b)4.
349 must notify the corporation on the form provided pursuant to s.
350 607.1322(1) of that shareholder's estimate of the fair value of
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351 the shares and demand payment of that estimate plus accrued
352 interest, if and to the extent applicable.
353 (2) A shareholder who fails to notify the corporation in
354 writing of that shareholder's demand to be paid the
355 shareholder's stated estimate of the fair value plus accrued
356 interest, if and to the extent applicable, under subsection (1)
357 within the timeframe set forth in s. 607.1322(2)(b)2. waives the
358 right to demand payment under this section and shall be entitled
359 only to the payment offered by the corporation pursuant to s.
360 607.1322(2)(b)4.
361 (3) With respect to a shareholder who properly makes
362 demand for payment pursuant to subsection (1), at any time after
363 the shareholder makes such demand, including during a court
364 proceeding under s. 607.1330, the corporation shall have the
365 right to prepay to the shareholder all or any portion of the
366 amount that the corporation determines to be due under s.
367 607.1322(2)(b)3. and the shareholder shall be obligated to
368 accept such prepayment.
369 (a) If such prepayment is made within 90 days after the
370 earlier of the date on which the appraisal notice is provided by
371 the corporation under s. 607.1322(1) or the deadline date by
372 which the appraisal notice is required to be provided by the
373 corporation under s. 607.1322(2), accrued interest will be
374 payable, if at all, to the shareholder entitled to appraisal
375 rights, calculated and accrued from the date on which the
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376 corporate action became effective and only on amounts that are
377 determined to be due to the shareholder and are above the amount
378 so prepaid. Accrued interest will not be payable to the
379 shareholder entitled to appraisal rights on the prepayment
380 previously made to the shareholder by the corporation pursuant
381 to this paragraph.
382 (b) If such prepayment is made more than 90 days after the
383 earlier of the date on which the appraisal notice is provided by
384 the corporation under s. 607.1322(1) or the deadline date by
385 which the appraisal notice is required to be provided by the
386 corporation under s. 607.1322(2), the prepayment must include
387 accrued interest on the amount of the prepayment, calculated at
388 the rate of interest determined for judgments pursuant to s.
389 55.03 and calculated and accrued from the date that the
390 corporate action became effective through the date of the
391 prepayment previously made to the shareholder by the corporation
392 pursuant to this paragraph. In addition, accrued interest will
393 be payable to the shareholder entitled to appraisal rights on
394 such amounts, if any, determined to be due to the shareholder in
395 excess of the prepaid amount, calculated and accrued from the
396 date on which the corporate action became effective.
397 Section 8. Subsections (1) and (5) of section 607.1330,
398 Florida Statutes, are amended to read:
399 607.1330 Court action.—
400 (1) If a shareholder makes demand for payment under s.
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401 607.1326 which remains unsettled, the corporation shall commence
402 a proceeding within 60 days after receiving the payment demand
403 and petition the court to determine the fair value of the shares
404 and accrued interest, if and to the extent applicable,
405 calculated and accrued from the date the corporate action became
406 effective and taking into account the amount of any prepayment
407 previously made to the shareholder by the corporation pursuant
408 to s. 607.1326(3) from the date of the corporate action. If the
409 corporation does not commence the proceeding within the 60-day
410 period, any shareholder who has made a demand pursuant to s.
411 607.1326 may commence the proceeding in the name of the
412 corporation.
413 (5) Each shareholder entitled to appraisal rights who is
414 made a party to the proceeding is entitled to judgment for the
415 amount of the fair value of such shareholder's shares as found
416 by the court, plus accrued interest, if and to the extent
417 applicable and as found by the court, taking into account the
418 amount of any prepayment previously made to the shareholder by
419 the corporation pursuant to s. 607.1326(3).
420 Section 9. Subsection (5) of section 607.1405, Florida
421 Statutes, is amended to read:
422 607.1405 Effect of dissolution.—
423 (5) Except as provided in s. 607.1422(4), the name of a
424 dissolved corporation is not available for assumption or use by
425 another eligible entity until 120 days 1 year after the
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426 effective date of dissolution unless the dissolved corporation
427 provides the department with a record, signed as required by s.
428 607.0120, permitting the immediate assumption or use of the name
429 by another eligible entity.
430 Section 10. Section 617.0725, Florida Statutes, is amended
431 to read:
432 617.0725 Quorum.—An amendment to the articles of
433 incorporation or the bylaws which adds, changes, or deletes a
434 greater or lesser quorum or voting requirement must meet the
435 same quorum or voting requirement and be adopted by the same
436 vote and voting groups required to take action under the quorum
437 and voting requirements then in effect or proposed to be
438 adopted, whichever is greater. This section does not apply to
439 any corporation that is an association, as defined in s.
440 720.301, or a corporation regulated under chapter 718 or chapter
441 719.
442 Section 11. Subsection (9) of section 617.0825, Florida
443 Statutes, is amended to read:
444 617.0825 Board committees and advisory committees.—
445 (9) This section does not apply to a committee established
446 under chapter 718, chapter 719, or chapter 720 to perform the
447 functions set forth in s. 718.303(3), s. 719.303(3), s.
448 720.305(2), s. 720.303(2), or s. 720.3035(1), or s. 720.405,
449 respectively.
450 Section 12. Section 617.1703, Florida Statutes, is amended
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451 to read:
452 617.1703 Application of chapter.—
453 (1)(a) This chapter is applicable to a corporation that is
454 an association as defined in and regulated by any of chapter 718
455 regarding condominiums, chapter 719 regarding cooperatives,
456 chapter 720 regarding homeowners' associations, chapter 721
457 regarding timeshares, or chapter 723 regarding mobile
458 homeowners' associations, except:
459 1. For In the event of any conflict between the provisions
460 of this chapter and chapter 718 regarding condominiums, chapter
461 719 regarding cooperatives, chapter 720 regarding homeowners'
462 associations, chapter 721 regarding timeshares, or chapter 723;
463 or
464 2. As otherwise provided for in chapter 718, chapter 719,
465 chapter 720, chapter 721, or chapter 723.
466 (b) If subparagraph (a)1. or subparagraph (a)2. applies
467 regarding mobile home owners' associations, the applicable
468 provisions of such other respective chapters shall apply.
469 (2) The provisions of ss. 617.0605-617.0608 do not apply
470 to corporations regulated by any of the foregoing chapters or to
471 any other corporation where membership in the corporation is
472 required pursuant to a document recorded in the county property
473 records.
474 Section 13. This act shall take effect upon becoming a
475 law.
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HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 415 Fire Department Communications
SPONSOR(S): Insurance & Banking Subcommittee, Botana
TIED BILLS: IDEN./SIM. BILLS: CS/SB 360
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Insurance & Banking Subcommittee 17 Y, 0 N, As CS Rowley Luczynski
2) Commerce Committee Rowley Hamon
SUMMARY ANALYSIS
Chapter 633, F.S., Fire Prevention and Control, designates the Chief Financial Officer (CFO) as the State Fire
Marshal. The State Fire Marshal, through the Department of Financial Service’s Division of State Fire Marshal,
is charged with enforcing the provisions of ch. 633, F.S., and all other applicable laws relating to fire safety.
The Florida Fire Prevention Code (FFPC) is adopted by the State Fire Marshal and enforced by the local fire
official within each county, municipality, and special fire district. The State Fire Marshal adopts a new edition of
the FFPC every three years. The FFPC requires that all new and existing buildings maintain minimum radio
signal strength at a level determined by the authority having jurisdiction (local fire authorities). In addition,
current law provides that local fire authorities shall determine minimum radio signal strength for fire department
communications in all new and existing high-rise buildings.
The bill extends the deadline for existing high-rise buildings to comply with a local authority’s minimum radio
signal strength requirements by five years to January 1, 2027. The deadline for existing, non-compliant high-
rise buildings to apply for permits to install required devices to meet the standards is extended by five years to
December 31, 2024. For high-rise apartment buildings, the deadline to comply with a local authority’s minimum
radio signal strength requirements is extended by five years to January 1, 2030. The deadline for existing, non-
compliant high-rise apartment buildings to apply for permits to install required devices to meet the standards is
extended by five years to December 31, 2027.
The bill also provides that two-way radio communication enhancement systems may be used to comply with a
local authority’s minimum radio signal strength requirements, except that two-way radio communication
enhancement systems and similar systems are not required in apartments or buildings that are four stories or
less in height. The bill clarifies that installation of a two-way radio communication enhancement system to meet
the minimum radio signal strength requirements is not an unlawful act under s. 843.16, F.S.
The bill does not appear to have a fiscal impact on state or local government. It may have positive fiscal
impacts on the private sector.
The bill has an effective date of July 1, 2021.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h0415b.COM
DATE: 4/2/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
State Fire Prevention – State Fire Marshal
Chapter 633, F.S., Fire Prevention and Control, designates the Chief Financial Officer (CFO) as the
State Fire Marshal. The State Fire Marshal, through the Division of State Fire Marshal within the
Department of Financial Services (DFS), is charged with enforcing the provisions of ch. 633, F.S., and
all other applicable laws relating to fire safety and has the responsibility to minimize the loss of life and
property in this state due to fire.1 Pursuant to this authority, the State Fire Marshal regulates, trains, and
certifies fire service personnel and firesafety inspectors; investigates the causes of fires; enforces arson
laws; regulates the installation of fire equipment; conducts firesafety inspections of state property; and
operates the Florida State Fire College.
In addition to these duties, the State Fire Marshal adopts by rule the Florida Fire Prevention Code
(FFPC), which contains all fire safety laws and rules that pertain to the design, construction, erection,
alteration, modification, repair, and demolition of public and private buildings, structures, and facilities
and the enforcement of such fire safety laws and rules, at ch. 69A-60, F.A.C. The State Fire Marshal
adopts a new edition of the FFPC every three years.2 The 7th edition of the FFPC took effect on
December 31, 2020.3 The FFPC is largely based on the National Fire Protection Association’s (NFPA)
Standard 1, Fire Prevention Code, along with the current edition of the NFPA’s Life Safety Code, NFPA
101.4
The FFPC is the minimum fire prevention code deemed adopted by each municipality, county, and
special district with firesafety responsibilities, and applies to every building and structure throughout the
state with few exceptions.5 Municipalities, counties, and special districts with firesafety responsibilities
may supplement the FFPC with more stringent standards adopted in accordance with s. 633.208, F.S.6
Local fire authorities set standards for radio signal strength throughout buildings within their jurisdiction
in order to ensure consistent fire and rescue communication capabilities.
Radio Signal Strength for Fire Department Communications
The life safety of firefighters and citizens depends on reliable, functional communication tools that work
in the harshest and most hostile of environments.7 All firefighters, professional and volunteer, operate in
extreme environments that are markedly different from those of any other radio users.8 The radio is the
lifeline that connects the firefighters to command and outside assistance when in the most desperate of
situations.9
Modern focus on radio signal strength stems from difficulties experienced by firefighters attempting
rescue operations on September 11, 2001, in the World Trade Towers, who found that in certain areas
of the building their radio signal degraded, making live communication difficult or impossible.10
1 S. 633.104, F.S.
2 S. 633.202, F.S.
3 Florida Fire Prevention Code (7th ed. 2020), https://www.nfpa.org/codes-and-standards/all-codes-and-standards/codes-
and-standards/free-access?mode=view (last visited Mar. 11, 2021).
4 S. 633.202(2), F.S.
5 S. 633.208, F.S., and 69A-60.002(1), F.A.C.
6 S. 633.208(3), F.S., and 69A-60.002(2), F.A.C.
7 U.S. Fire Administration, Voice Radio Communications Guide for the Fire Service (June 2016),
https://www.usfa.fema.gov/downloads/pdf/publications/Voice_Radio_Communications_Guide_for_the_Fire_Service.pdf
(last visited Mar. 11, 2021).
8 Id.
9 Id.
10 See National Fire Protection Association, Assessment of Total Evacuation Systems for Tall Buildings: Literature
Review, https://www.nfpa.org/-/media/Files/News-and-Research/Fire-statistics-and-reports/Executive-
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DATE: 4/2/2021
Two-way radio communication enhancement systems are devices installed after a building is
constructed that accept and then amplify radio signals used by first responders. A radio frequency site
survey may be conducted in a building to determine areas where radio signal strength drops due to
materials used in construction, such as thick walls, metal construction, underground structures, and
low-emissivity glass windows. The generally desired effect is that radio signal strength at ground level,
where a fire rescue operation might be based, is equal to the radio signal strength in all locations
throughout the building, to ensure consistent communication. Several devices are available to boost
signal strength to meet required radio signal strength. These include bi-directional amplifiers and
networks of indoor antennae, referred to collectively as a distributed antenna system.11
Florida Fire Code Minimum Radio Signal Strength
Amendments to the FFPC, effective January 1, 2018, provided that all new and existing buildings must
maintain minimum radio signal strength at a level determined by the authority having jurisdiction (local
fire authorities).12 Where required by a local fire authority, two-way radio communication enhancement
systems must comply with federal standards for installation and upkeep.13 Additionally, if a two-way
radio communication enhancement system would have a negative impact on the operations of a facility,
the local fire authority may accept an automatically activated emergency responder radio coverage
system in the alternative.14
Minimum Radio Signal Strength for High-Rise Buildings
Section 633.202(18), F.S., enacted in 2016,15 provides that local fire authorities shall determine
minimum radio signal strength for fire department communications in all new and existing high-rise
buildings. A high-rise building is defined in the FFPC as a building where the floor of an occupiable
story is greater than 75 feet above the lowest level of fire department vehicle access.16 Existing high-
rise buildings are not required to comply with a local authority’s minimum radio strength requirements
until January 1, 2022. However, an existing high-rise building must have applied for the appropriate
permit for installation of equipment meeting the local authority’s standards by December 31, 2019.
Existing high-rise apartment buildings are not required to comply until January 1, 2025, and must apply
for permits to reach compliance by December 31, 2022.
A 2018 declaratory statement from the Department of Financial Services clarified that the compliance
timeframes provided in s. 633.202(18), F.S., apply only to high-rise buildings and do not apply to
buildings less than 75 feet in height.17 Thus, compliance with minimum radio signal strength
requirements for non-high-rise buildings is controlled by s. 11.10 of the FFPC, which provides no grace
periods for compliance.
summaries/evacsystemstallbuildingsliteraturereviewexecsum.ashx#:~:text=According%20to%20the%20definition%20of,fl
oor%20of%20the%20highest%20occupiable (last visited Mar. 12, 2021).
11 See City of Treasure Island, Florida, Two-Way Radio Communication Enhancement System Requirements (Apr. 20,
2019), https://www.mytreasureisland.org/residents/departments/fire_dept/local_high-
rise_public_safety_system_integrators.php, (last visited Mar. 12, 2021); see also East Lake Tarpon Special Fire Control
District, Information Bulletin: Two-Way Radio Communication Enhancement System Requirements,
https://www.elfr.org/files/e2eae3cb2/Bulletin+East+Lake+Two+Way+Communications.pdf (last visited Mar. 12, 2021).
12 Florida Fire Prevention Code (7th ed. 2020) s. 11.10.1, https://www.nfpa.org/codes-and-standards/all-codes-and-
standards/codes-and-standards/free-access?mode=view (last visited Mar. 11, 2021).
13 Florida Fire Prevention Code (7th ed. 2020) s. 11.10.2, https://www.nfpa.org/codes-and-standards/all-codes-and-
standards/codes-and-standards/free-access?mode=view (last visited Mar. 11, 2021).
14 Florida Fire Prevention Code (7th ed. 2020) s. 11.10.3, https://www.nfpa.org/codes-and-standards/all-codes-and-
standards/codes-and-standards/free-access?mode=view (last visited Mar. 11, 2021).
15 Ch. 2016-129, s. 27, Laws of Fla.
16 Florida Fire Prevention Code (7th ed. 2020) s. 3.3.29.6, https://www.nfpa.org/codes-and-standards/all-codes-and-
standards/codes-and-standards/free-access?mode=view (last visited Mar. 11, 2021).
17 Department of Financial Services Declaratory Statement, In the Matter of Charles B. Parks, Chief Florida Fire Code
Official of Broward County (Apr. 18, 2018), https://www.doah.state.fl.us/FLAID/DFS/2018/DFS_217787-17-
DS_12042019_013047.pdf (last visited Mar. 12, 2021).
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DATE: 4/2/2021
Radio Equipment Receiving Law Enforcement Frequencies
Section 843.16, F.S. makes it unlawful to install or transport, except in an emergency vehicle, crime
watch vehicle, or certain specified places, any frequency modulation radio receiving equipment so
adjusted or tuned as to receive messages or signals on frequencies assigned by the Federal
Communications Commission to law enforcement or fire rescue personnel.
Effect of the Bill
The bill extends the deadline for existing high-rise buildings to comply with a local authority’s minimum
radio signal strength requirements by five years to January 1, 2027. The deadline for existing, non-
compliant high-rise buildings to apply for permits to install required devices to meet the standards is
extended by five years to December 31, 2024. For high-rise apartment buildings, the deadline to
comply with a local authority’s minimum radio signal strength requirements is extended by five years to
January 1, 2030. The deadline for existing, non-compliant high-rise apartment buildings to apply for
permits to install required devices to meet the standards is extended by five years to December 31,
2027.
The bill also provides that two-way radio communication enhancement systems may be used to comply
with a local authority’s minimum radio signal strength requirements, except that two-way radio
communication enhancement systems and similar systems are not required in apartments or buildings
that are four stories or less in height. The bill clarifies that installation of a two-way radio communication
enhancement system to meet the minimum radio signal strength requirements is not an unlawful act
under s. 843.16, F.S.
B. SECTION DIRECTORY:
Section 1. Amends s. 633.202, F.S., relating to Florida Fire Prevention Code.
Section 2. Amends s. 843.16, F.S., relating to unlawful to install or transport radio equipment using
assigned frequency of state or law enforcement officers; definitions; exceptions; penalties.
Section 3. Provides an effective date of July 1, 2021.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
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DATE: 4/2/2021
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may positively impact building owners by extending the deadlines for compliance.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. The bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill does not provide a grant of rulemaking authority, nor does it require rulemaking.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On March 17, 2021, the Insurance & Banking Subcommittee considered the bill, adopted one amendment, and
reported the bill favorably as a committee substitute. The amendment restores the term “high-rise” in s.
633.202(18), F.S., maintaining the requirement that local fire authorities determine minimum radio signal
strength for fire department communications for all new and existing high-rise buildings. The amendment also
provides that two-way radio communication enhancement systems and similar systems shall not be required in
buildings that are four stories or less in height.
The analysis is drafted to the committee substitute as passed by the Insurance & Banking Subcommittee.
STORAGE NAME: h0415b.COM PAGE: 5
DATE: 4/2/2021
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 415 2021
1 A bill to be entitled
2 An act relating to fire department communications;
3 amending s. 633.202, F.S.; authorizing the use of
4 radio communication enhancement systems to comply with
5 minimum radio signal strength requirements;
6 prohibiting the authority having jurisdiction from
7 requiring certain radio communication enhancement
8 systems or similar systems in apartments or buildings
9 of a certain height; revising the transitory period
10 for compliance; revising the date by which existing
11 apartment buildings that are not in compliance must
12 initiate an application for an appropriate permit;
13 amending s. 843.16, F.S.; providing an exception to
14 the prohibition against installing or transporting
15 certain radio equipment using law enforcement or fire
16 rescue frequencies; providing an effective date.
17
18 Be It Enacted by the Legislature of the State of Florida:
19
20 Section 1. Subsection (18) of section 633.202, Florida
21 Statutes, is amended to read:
22 633.202 Florida Fire Prevention Code.—
23 (18) The authority having jurisdiction shall determine the
24 minimum radio signal strength for fire department communications
25 in all new high-rise and existing high-rise buildings. Two-way
Page 1 of 3
CODING: Words stricken are deletions; words underlined are additions.
hb0415-01-c1
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 415 2021
26 radio communication enhancement systems may be used to comply
27 with minimum radio signal strength requirements. However, two-
28 way radio communication enhancement systems and similar systems
29 shall not be required in apartments or buildings that are four
30 stories or less in height. Existing buildings are not required
31 to comply with minimum radio strength for fire department
32 communications and two-way radio system enhancement
33 communications as required by the Florida Fire Prevention Code
34 until January 1, 2027 2022. However, by December 31, 2024 2019,
35 an existing building that is not in compliance with the
36 requirements for minimum radio strength for fire department
37 communications must apply for an appropriate permit for the
38 required installation with the local government agency having
39 jurisdiction and must demonstrate that the building will become
40 compliant by January 1, 2027 2022. Existing apartment buildings
41 are not required to comply until January 1, 2030 2025. However,
42 existing apartment buildings are required to apply for the
43 appropriate permit for the required communications installation
44 by December 31, 2027 2022.
45 Section 2. Paragraph (f) is added to subsection (3) of
46 section 843.16, Florida Statutes, to read:
47 843.16 Unlawful to install or transport radio equipment
48 using assigned frequency of state or law enforcement officers;
49 definitions; exceptions; penalties.—
50 (3) This section does not apply to the following:
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hb0415-01-c1
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 415 2021
51 (f) The installation of a two-way radio communication
52 enhancement system to comply with the requirements of s.
53 633.202(18).
54 Section 3. This act shall take effect July 1, 2021.
Page 3 of 3
CODING: Words stricken are deletions; words underlined are additions.
hb0415-01-c1
COMMERCE COMMITTEE
CS/HB 415 by Rep. Botana
Relating to Fire Department Communications
AMENDMENT SUMMARY
April 6, 2021
Amendment 1 by Rep. Botana (lines 20-44):
The amendment shortens the extension of the deadline for existing high-rise buildings to comply
with a local authority’s minimum radio signal strength requirements by two years to January 1,
2025.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 415 (2021)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/O OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Commerce Committee
2 Representative Botana offered the following:
3
4 Amendment
5 Remove lines 20-44 and insert:
6 Section 1. Subsection (18) of section 633.202, Florida
7 Statutes, is amended to read:
8 633.202 Florida Fire Prevention Code.—
9 (18) The authority having jurisdiction shall determine the
10 minimum radio signal strength for fire department communications
11 in all new high-rise and existing high-rise buildings. Two-way
12 radio communication enhancement systems may be used to comply
13 with minimum radio signal strength requirements. However, two-
14 way radio communication enhancement systems and similar systems
15 shall not be required in apartments or buildings that are four
16 stories or less in height. Existing buildings are not required
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Page 1 of 2
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 415 (2021)
Amendment No. 1
17 to comply with minimum radio strength for fire department
18 communications and two-way radio system enhancement
19 communications as required by the Florida Fire Prevention Code
20 until January 1, 2025 2022. However, by December 31, 2024 2019,
21 an existing building that is not in compliance with the
22 requirements for minimum radio strength for fire department
23 communications must apply for an appropriate permit for the
24 required installation with the local government agency having
25 jurisdiction and must demonstrate that the building will become
26 compliant by January 1, 2027 2022. Existing apartment buildings
27 are not required to comply until January 1, 2030 2025. However,
28 existing apartment buildings are required to apply for the
29 appropriate permit for the required communications installation
30 by December 31, 2027 2022.
830317 - h0415-line20.docx
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Page 2 of 2
HB 483
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 483 Electronic Legal Documents
SPONSOR(S): Altman
TIED BILLS: IDEN./SIM. BILLS: SB 848
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice & Property Rights Subcommittee 16 Y, 0 N Brascomb Jones
2) Commerce Committee Wright Hamon
3) Judiciary Committee
SUMMARY ANALYSIS
Florida law considers many documents to be of such importance that they must be signed before a notary
public. A notary public's function is to authenticate signatures and administer oaths on these documents,
thereby preventing fraud. A notary public is responsible for determining that the person signing is who he or
she claims to be. A notary public is authorized to perform the following six duties:
Administer oaths and affirmations;
Take acknowledgments;
Attest to photocopies of certain documents;
Solemnize marriage;
Verify vehicle identification numbers; and
Certify the contents of a safe-deposit box.
Current law allows a notary public to perform notarial acts using electronic means in which the principal
appears using audio-video communication technology as long as certain procedures, standards, and minimum
technology requirements are met.
A will is a legal document used to designate the distribution of a person's assets upon death. To be valid, a will
must follow certain formalities with respect to its creation, execution, preservation, revocation, and filing. An
electronic will is executed, modified, and revoked in a similar manner as a paper will.
HB 483 makes several changes relating to online notarization and electronic wills to clarify that:
Online notarization procedures still apply in circumstances where an electronic document requires
witnesses but not notarization.
An online notary public’s supervision of an electronic record’s witnessing is a notarial act.
The requirements for supervising of witnessing of electronic records in s. 117.285(5), F.S., are:
o Applicable only when fewer than two witnesses are in the physical presence of the principal who
is executing one of the enumerated electronic estate planning documents;
o Not limited to “a waiver of spousal rights;”
o Applicable to agreements or waivers of rights under s. 732.701, F.S.; and
o Applicable only to the testamentary aspects of a revocable trust.
The bill also amends the definition of “online notarization” to include the appearance of witnesses by audio-
video communication technology. The bill requires an online notary public to verify the principal’s identity when
an online notary public is supervising the execution and witnessing of an electronic record.
The bill does not appear to have a fiscal impact on state or local governments.
The bill is effective upon becoming law.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h0483b.COM
DATE: 4/2/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Notary Public
The law considers many documents to be of such importance that they must be signed in the presence
of a notary public. The notary's function is to authenticate signatures and administer oaths on these
documents, thereby preventing fraud. A notary public is responsible for determining that the person
signing is who he or she claims to be.1 A notary is authorized to perform the following six duties:
Administer oaths and affirmations;
Take acknowledgments;
Attest to photocopies of certain documents;
Solemnize marriage;
Verify vehicle identification numbers; and
Certify the contents of a safe-deposit box.2
A notary must be at least 18 years old, maintain legal residence in Florida, and possess the ability to
read, write, and understand English. The notary public application must be signed and sworn by the
applicant and accompanied by the fee and proof of a bond3 required by law. The application for
appointment must include a $25 fee, a $10 commission fee,4 and a $4 surcharge which is used for
notary education and assistance.5 The bond must be for at least $7,500, payable to any individual
harmed as a result of a breach of duty by the notary.6
A notary applicant must also take an oath following the application process. As part of the oath, the
applicant must swear that he or she has read the statutes relating to notaries public and knows a notary
public’s responsibilities, limitations, and powers.7 Once appointed, a notary may serve for four years.
No person may be automatically reappointed as a notary; the application process must be completed
regardless of whether an applicant has previously served as a notary.8
When notarizing a signature, a notary public must complete a notarial certificate for an oath,
affirmation, or an acknowledgment.9 Current law provides notaries with a form certificate to use in
substantially the same form.10 The certificate of acknowledgement must contain the following items:
The venue stating the location of the notarization;
The type of notarial act performed;
A statement that the signer personally appeared physically before the notary public or by online
notarization at the time of the notarization;
The exact date of the notarial act;
The name of the person whose signature is being notarized;
1 National Notary Association, Inc., What is a Notary Public? https://www.nationalnotary.org/knowledge-center/about-notaries/what-is-a-
notary-public (last visited Mar. 30, 2021).
2 Florida Governor’s Office, Duties of a Notary Public (Dec. 13, 2016), https://www.flgov.com/wp-
content/uploads/Notary_Reference_Manual_12.13.16.pdf (last visited Mar. 30, 2021).
3 A notary bond is a three-party obligation. A bonding company guarantees to the Florida Department State that it will pay, on behalf of
a commissioned Florida notary, any losses incurred by the public up to $7,500 during the notary’s commission term. The bonding
company will then demand reimbursement from the notary in the event of such paid losses. American Association of Notaries, Florida
Notary Bond, https://www.floridanotaries.com/florida-notary-
bond#:~:text=A%20notary%20bond%20is%20a,during%20the%20notary's%20commission%20term (last visited Mar. 30, 2021).
4 A $10 fee is prescribed for each Governor issued commission of an elected officer or a notary public. S. 113.01, F.S.
5 S. 117.01, F.S.
6 Id.
7 Id.
8 Id.
9 S. 117.05(4), F.S.
10 S. 117.05(12), F.S.
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The type of identification the notary public is relying upon;
The notary’s official signature;
The notary’s name, typed, printed, or stamped below the signature; and
The notary’s official seal11 affixed below or to either side of the notary’s signature.12
Electronic Notarization and Electronic Records
Any document requiring notarization may be notarized electronically. When notarizing a document
electronically, a notary public must use an electronic signature that is:
Unique to the notary public;
Capable of independent verification;
Retained under the notary public's sole control; and
Attached to or logically associated with the electronic document so that any subsequent
alteration to the electronic document displays alteration evidence.13
When a signature is required to be accompanied by a notary public seal, the requirement is satisfied
when the electronic signature of the notary public contains the minimum information specified.14 An
electronic signature is any letters, characters, or symbols, manifested by electronic means, executed or
adopted by a party with an intent to authenticate a writing. A writing is electronically signed if an
electronic signature is logically associated with such writing.
If a law requires a signature or record to be notarized, acknowledged, verified, or made under oath, the
requirement is satisfied if the electronic signature of the person authorized to perform those acts,
together with all other information required to be included, is attached to or logically associated with the
signature or record.15 In performing an electronic notarial act, a notary must reasonably ensure the
security, reliability, and uniformity of electronic notarizations. To this end, the notary may use an
authentication procedure such as a password, token, card, or biometric to protect access to the
notary's electronic signature or the means for affixing the signature.16
Remote Notarization
A notary public may complete a registration as an online notary public with the Florida Department of
State (DOS) if he or she:
Holds a current:
o Commission as a notary public;
o Appointment as a civil-law notary;17 or
o Appointment as a commissioner of deeds;18
Submits a copy of such commission or proof of such appointment with the registration;
Certifies that the notary public, civil-law notary, or commissioner of deeds registering as an
online notary public has completed a course covering the online notary public duties,
obligations, and technology requirements;
Pays a notary public registration fee;19
11 The notary seal must be a rubber stamp and include the words "Notary Public—State of Florida"; it must also include the name of the
notary public, the date of expiration of the notary’s commission, and the commission number.
12 S. 117.05(12), F.S.
13 S. 117.021, F.S.
14 Id.
15 S. 668.50(11)(a), F.S.
16 Id.
17 A civil-law notary is a person who is a member in good standing of The Florida Bar, who has practiced law for at least 5 years, and
who is appointed by the Secretary of State as a civil-law notary. S. 118.10, F.S.
18 A commissioner of deeds is a person appointed by the Governor to take acknowledgments, proofs of execution, or oaths in any
foreign country, in international waters, or in any territory of the United States outside the 50 states. S. 721.97, F.S.
19 S 113.01, F.S.
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DATE: 4/2/2021
Identifies the Remote Online Notary (RON) service provider20 whose audio-video
communication and identity proofing technologies the registrant intends to use for online
notarizations, and confirms that such technology and processes satisfy statutory requirements;
Provides evidence that the registrant has obtained a $25,000 bond, payable to any individual
harmed as a result of the registrant’s breach of duty as an online notary public; and
Provides evidence that the registrant acting in his or her capacity as an online notary public is
covered by a minimum $25,000 errors and omissions insurance policy.21
An online notary public may perform any function as an online notarization authorized under ch. 117,
F.S., excluding solemnizing matrimony rites.22 If a notarization requires a principal23 to appear before
the online notary public, the principal may appear by audio-video communication technology.
An online notary public can perform an online notarization, regardless of the physical location of the
principal at the time of the notarial act, as long as the notary public is physically located in Florida while
performing the online notarization.24
An online notary public is subject to both the general notary and electronic notary provisions of law.25
An online notary may charge up to $25 for notarizing a document online, in addition to fees allowable
for in-person notarial acts.26
Technology Standards for Online Notarization
Florida law establishes minimum requirements for online notarization technology standards:
Identity proofing:27 The security characteristics, at a minimum, must present the principal with
five or more questions with a minimum of five possible answer choices per question. Each
question must be:
o Drawn from a third-party provider of public and proprietary data sources;
o Identifiable to the principal; and
o Subjected to a two-minute time constraint, with the principal answering at least 80
percent correct.28
Credential analysis:29 An online notary must use commercially available credential analysis
automated software or a hardware process that:
o Is consistent with sound commercial practices;
o Aids the notary public in verifying the authenticity of the credential to ensure it is not
fraudulent or inappropriately modified; and
o Uses information held by the issuing or authoritative agency to confirm the validity of
credential details.30
Audio-video communication technology:31 The technology must:
o Be secure from interception or access by anyone other than the participants
communicating; and
20 A RON service provider is a person that provides audio-video communication technology and related processes, services, software,
data storage, or other services to online notaries public for the purpose of directly facilitating their performance of online notarizations.
21 S. 117.225, F.S.
22 S. 117.209, F.S.
23 A principal is an individual whose electronic signature is acknowledged, witnessed, or attested to in an online notarization or who
takes an oath or affirmation from the online notary public.
24 S. 117.209, F.S.
25 S. 117.235, F.S.
26 S. 117.275, F.S.
27 Identity proofing is a process by which a third party confirms the identity of an individual through use of public or proprietary data
sources, which may include knowledge-based authentication or biometric verification. S. 117.201, F.S.
28 S. 117.295, F.S.
29 Credential analysis is a process by which a third party aids a public notary in affirming the validity of a government-issued
identification credential and data thereon through review of public or proprietary data sources. S. 117.201, F.S.
30 S. 117.295, F.S.
31 Audio-video communication technology is technology in compliance with applicable law which enables real-time, two-way
communication using electronic means in which participants are able to see, hear, and communicate with one another. S. 117.201, F.S.
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o Provide sufficient audio clarity and video resolution to enable the notary to communicate
with the principal and to confirm the identity of the principal.32
With respect to electronic notarization, a notary is required to include access protection to a signature
through use of passwords or codes under the notary’s control. The notary may not allow another
person to use the notary’s electronic journal, seal, or signature. Notaries must also reasonably ensure
that any device used to create their electronic signature is current and secure.33
Online Notarization Procedures
In performing an online notarization, an online notary public must verify the identity of a principal at the
time the signature is taken by using audio-video communication technology. The notary must record
the entire audio-video conference session between the notary public and the principal and any
subscribing witnesses. A principal may not serve as a witness for an online notarization.34
In performing an online notarization for a principal not located in the state, an online notary must
confirm that the principal desires for the notarial act to be performed by a Florida notary public and
under Florida law. An online notary public must confirm the identity of the principal and any witness by
personal knowledge, or by:
Remote presentation of a government-issued identification credential by each individual;
Credential analysis of each government-issued identification credential; and
The identity proofing of each individual, in the form of knowledge-based authentication or
another legal method of identity proofing.35
If an online notary fails to comply with the online notarization procedures, such failure does not
automatically impair the validity of the notarial act or the electronic record. However, such failure may
be introduced as evidence to establish violations of ch. 117, F.S., or as an indication of possible fraud,
forgery, or impersonation or for other evidentiary purposes.36
Electronic Journal and Electronic Records
An online notary must keep a secure electronic journal of electronic records he or she has notarized.37
For each online notarization, the electronic journal entry must contain the:
Date and time of the notarization;
Type of notarial act;
Type, title, or description of the electronic record or proceeding;
Identity evidence for each principal involved in the transaction or proceeding;
Indication that the principal passed the identity proofing;
Indication that the government-issued identity credential satisfied the credential analysis; and
Fee charged for the online notarization.38
Identity evidence for each principal may be a:
Statement that the person is personally known to the online notary public; or
Notation of the type of identification document provided to the online notary public.39
An online notary public must retain an unedited and uninterrupted recording of a remote notarization
audio-video communication, which must include:
Appearance by the principal and each witness before the online notary public;
Identity confirmation of the principal and each witness;
32 S. 117.295, F.S.
33 Ss. 117.021 and 117.225, F.S.
34 S. 117.265, F.S.
35 Id.
36 Id.
37 S. 117.245, F.S.
38 Id.
39 Id.
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A general description of the records to be signed;
A principal’s declaration that his or her signature is knowingly and voluntarily made; and
All of the actions and spoken words of the principal, notary public, and each required witness
during the entire online notarization.40
The notary must attach or logically associate the electronic signature and seal to the electronic notarial
certificate of an electronic record in a manner capable of independent verification using tamper-evident
technology.41 The electronic journal and backup record of such must be maintained for at least 10 years
after the date of the notarial act. A notary must immediately notify an appropriate law enforcement
agency and DOS of the electronic journal, electronic signature, or electronic seal’s unauthorized use.42
Electronic Wills
A will, very generally, is a legal document that a person (a testator) may use to determine who gets his
or her property upon death. Wills do not dispose of all of a testator’s property, but only the “estate,” or
those assets that are subject to probate administration.43 Probate is a court-supervised process for
identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts,
and distributing the decedent’s assets to his or her beneficiaries. Other assets are disposed of outside
of probate.
Without a will, a decedent’s estate is distributed pursuant to intestacy statutes, which devise a
decedent’s estate according to default rules. With a will, however, a testator may devise the estate to a
person of his or her choosing. Also, with a will, a testator may designate a person known as a personal
representative to carry out the terms of the will. Otherwise, a court will choose the personal
representative.
Executing a Will
A will must be in writing and signed by either the testator or by someone else on behalf of the testator.
If someone else signs on behalf of the testator, the person must do so in the testator’s presence and at
the testator’s direction.44 At least two persons must witness the testator sign the will or must witness the
testator’s acknowledgement that he or she previously signed the will or that another person subscribed
the testator’s name to the will.45 If the testator fails to comply with these requirements, the will is not
valid.46
The requirement that a document be signed may be satisfied by an electronic signature.47 Unless the
testator is a vulnerable adult,48 the witnessing of a will execution can be done remotely if:
The individuals are supervised by a notary public;
The individuals are authenticated and signing as part of an online notarization session in
accordance with s. 117.265, F.S.;
The witness hears the signer make a statement acknowledging that the signer has signed the
electronic record; and
In the case of an electronic will, the testator provides, to the satisfaction of the online notary
public, verbal answers to the following questions:
40 Id.
41 S. 117.255, F.S.
42 Id.
43 s. 731.201(14), F.S.
44 S. 732.502(1)(a), F.S.
45 S. 732.502(1)(b), F.S.
46 A will executed in another state is valid in Florida if the will is executed in accordance with the laws of this state, the laws of the state
in which it was executed, or both. This does not apply to nuncupative wills (oral wills) or holographic wills (wills written in the hand of the
testator, but not properly executed as set forth in section 732.502(1), F.S.), which are not valid in Florida regardless of whether they
were executed according to the laws of the state in which they were executed. S. 732.502(2), F.S.
47 S. 732.522, F.S.
48 A vulnerable adult is a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his
or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or
dysfunction, or brain damage, or the infirmities of aging. S. 415.102, F.S.
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o Are you 18 years of age or older?
o Are you of sound mind?
o Are you signing this will voluntarily?
o Are you under the influence of any drugs or alcohol that impairs your ability to make
decisions?
o Has anyone forced or influenced you to include anything in this will which you do not
wish to include?
o Did anyone assist you in accessing this video conference? If so, who?
o Where are you? Name everyone you know in the room with you.49
Self-Proved Wills
The estate is not required to procure an attesting witness as part of the estate administration process,
before a will can be admitted to probate, when the will is “self-proved”. A will which is self-proved in
accordance with the Code may be admitted to probate without further proof.50 In a will contest, when
the proponent initially has the burden of proving that the will was validly executed, a self-proving
affidavit is admissible to meet and satisfy this burden. The affidavit must be evidenced by a certificate
attached to or following the will.51
The will may be self-proved either at the time of its execution or at a subsequent date. When the will or
codicil is self-proved at a subsequent date, the testator is required to acknowledge it.52
An attested electronic will is self-proved if all of the following requirements are met:
The will is executed in conformity with Florida law;
The acknowledgement of the electronic will by the testator and the affidavits of the witnesses
are made in accordance with s. 732.503, F.S.;
The acknowledgement and affidavits are made a part of, or are attached to or logically
associated with, the electronic record; and
The electronic will designates a qualified custodian, who at all times is in control of the
electronic will and executes a certification that meets the requirements set forth in statute.53
A qualified custodian of an electronic will is a person who:
Is domiciled in and a resident of Florida or is incorporated or organized in Florida;
Consistently employs a system for maintaining custody of electronic records and stores
electronic records containing electronic wills under the system; and
Furnishes for a court hearing involving an electronic will that is currently or was previously
stored by the qualified custodian any information requested by the court pertaining to the
qualified custodian’s policies and procedures.54
A qualified custodian must maintain an audio-video recording of an electronic will online notarization.55
A qualified custodian is liable for the negligent loss or destruction of an electronic record and may not
limit his or her liability for doing so. A qualified custodian may not suspend or terminate a testator’s
access to electronic records and must keep a testator’s information confidential.56
Effect of Proposed Changes
49 Id.
50 S. 733.201(1), F.S.
51
The officer’s certificate must be substantially in the form set forth at s. 732.503, F.S. The form requires that the witnesses state that
they witnessed the testator sign the will. However, the statutory requirements for executing a will do not require witnesses to witness
the testator sign the will. Section 732.502, F.S., provides that the witnesses may either witness the testator sign, or witness the testator
acknowledge his or her prior signature.
52 S. 732.503(1), F.S.,
53 S. 732.523, F.S.
54 S.732.524, F.S.
55 Id.
56 Id.
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HB 483 makes several changes relating to online notarization and electronic wills. Specifically, the bill
clarifies that:
Online notarization procedures57 still apply in circumstances where an electronic document
requires witnesses but not notarization.
An online notary public’s supervision of an electronic record’s witnessing is a notarial act.
The requirements for supervision of witnessing of electronic records in s. 117.285(5), F.S., are:
o Applicable only when fewer than two witnesses are in the physical presence of the
principal who is executing one of the enumerated electronic estate planning documents;
o Not limited to “a waiver of spousal rights;” and
o Applicable to agreements or waivers of rights under s. 732.701, F.S.58
The bill provides that the requirements related to supervising the witnessing of electronic records for an
online notary public in s. 117.285(5), F.S., are applicable only to the testamentary aspects of revocable
trusts.59 In other words, failure to comply with the applicable requirements may invalidate the
testamentary aspects of a Florida resident’s revocable trust, but will not invalidate the non-testamentary
aspects of that revocable trust.
The bill also amends the definition of “online notarization” to add the appearance of witnesses by audio-
video communication technology. The bill requires an online notary public to verify the principal’s
identity when an online notary public is supervising the execution and witnessing of an electronic
record.
The bill corrects erroneous cross-references contained in statute.
Lastly, the bill revises statutory forms so that the jurats or notarial certificates in those forms comply
with the requirements of s. 117.05(4)(c), F.S., which became effective January 1, 2020.
The bill is effective upon becoming law.
B. SECTION DIRECTORY:
Section 1: Amends s. 117.201, F.S., relating to definitions.
Section 2: Amends s. 117.285, F.S., relating to supervising the witnessing of electronic records.
Section 3: Amends s. 709.2119, F.S., relating to acceptance of and reliance upon power of attorney.
Section 4: Amends s. 732.401, F.S., relating to descent of homestead.
Section 5: Amends s. 732.503, F.S., relating to self-proof of will.
Section 6: Amends s. 732.521, F.S., relating to definitions.
Section 7: Amends s. 732.703, F.S., relating to effect of divorce, dissolution, or invalidity of marriage
on disposition of certain assets at death.
Section 8: Amends s. 747.051, F.S., relating to summary procedure.
Section 9: Creates an unnumbered section providing for retroactive application.
Section 10: Provides an effective date of upon becoming a law.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
57 Online notarization procedures include verifying the identity of the principal, requiring the notary to maintain a record of the witnessing
in the notary’s electronic journal, and requiring the notary to maintain the audio-video recording of the execution and witnessing.
58 Agreements or waivers under s. 732701, F.S., include agreements to make a will, to give a devise, not to revoke a will, not to revoke
a devise, not to make a will, or not to make a devise.
59 “Testamentary aspects” are those provisions of a trust instrument that dispose of the trust property on or after the death of the settlor
other than to the settlor’s estate.
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None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
Not applicable.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 483 2021
1 A bill to be entitled
2 An act relating to electronic legal documents;
3 amending s. 117.201, F.S.; revising the definition of
4 the term "online notarization"; amending s. 117.285,
5 F.S.; clarifying that supervising the witnessing of an
6 electronic record by an online notary public is a
7 notarial act; specifying applicability of online
8 notarization procedures to supervision of the
9 witnessing of an electronic record; modifying
10 witnessing procedures; revising applicability;
11 amending s. 709.2119, F.S.; revising the statutory
12 form for an affidavit for acceptance of and reliance
13 upon a power of attorney to reflect means of
14 notarization; amending s. 732.401, F.S.; revising the
15 statutory form for the notice of election relating to
16 the descent of homestead property to reflect means of
17 notarization; amending s. 732.503, F.S.; revising the
18 statutory form for the self-proof of a will or codicil
19 to reflect means of notarization; amending s. 732.521,
20 F.S.; conforming a cross-reference; amending s.
21 732.703, F.S.; revising statutory forms relating to
22 the disposition of certain assets at death to reflect
23 means of notarization; amending s. 747.051, F.S.;
24 revising the form for a petition of summary relief for
25 the sale or transfer of certain property owned by an
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26 absentee to reflect means of notarization; providing
27 for construction and retroactive application;
28 providing an effective date.
29
30 Be It Enacted by the Legislature of the State of Florida:
31
32 Section 1. Subsection (9) of section 117.201, Florida
33 Statutes, is amended to read:
34 117.201 Definitions.—As used in this part, the term:
35 (9) "Online notarization" means the performance of a
36 notarial act using electronic means in which the principal or
37 any witness appears before the notary public by means of audio-
38 video communication technology.
39 Section 2. Section 117.285, Florida Statutes, is amended
40 to read:
41 117.285 Supervising the witnessing of electronic records.—
42 Supervising the witnessing of an electronic record by an online
43 notary public in accordance with this section is a notarial act.
44 An online notary public may supervise the witnessing of
45 electronic records by complying with the online notarization
46 procedures of this part and using the same audio-video
47 communication technology used for online notarization by a
48 principal, as follows:
49 (1) The witness may be in the physical presence of the
50 principal or remote from the principal provided the witness and
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51 principal are using audio-video communication technology.
52 (2) If the witness is remote from the principal and
53 viewing and communicating with the principal by means of audio-
54 video communication technology, the principal's and witness's
55 identities identity must be verified in accordance with the
56 procedures for identifying a principal as set forth in s.
57 117.265(4). If the witness is in the physical presence of the
58 principal, the witness must confirm his or her identity by
59 stating his or her name and current address on the audio-video
60 recording as part of the act of witnessing.
61 (3) The act of witnessing an electronic signature means
62 the witness is either in the physical presence of the principal
63 or present through audio-video communication technology at the
64 time the principal affixes the electronic signature and the
65 witness hears the principal make a statement to the effect that
66 the principal has signed the electronic record.
67 (4) A witness remote from the principal and appearing
68 through audio-video communication technology must verbally
69 confirm that he or she is a resident of and physically located
70 within the United States or a territory of the United States at
71 the time of witnessing.
72 (5) Notwithstanding subsections (2) and (3), if an
73 electronic record to be signed is a will under chapter 732, a
74 revocable trust with testamentary aspects as described in s.
75 736.0403(2)(b) under chapter 736, a health care advance
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76 directive, an agreement concerning succession or a waiver of
77 spousal rights under s. 732.701 or s. 732.702, respectively, or
78 a power of attorney authorizing any of the transactions
79 enumerated in s. 709.2208, all of the following apply when fewer
80 than two witnesses are in the physical presence of the principal
81 shall apply:
82 (a) Prior to facilitating witnessing of an instrument by
83 means of audio-video communication technology, a RON service
84 provider shall require the principal to answer the following
85 questions in substantially the following form:
86 1. Are you under the influence of any drug or alcohol
87 today that impairs your ability to make decisions?
88 2. Do you have any physical or mental condition or long-
89 term disability that impairs your ability to perform the normal
90 activities of daily living?
91 3. Do you require assistance with daily care?
92 (b) If any question required under paragraph (a) is
93 answered in the affirmative, the principal's signature on the
94 instrument may only be validly witnessed by witnesses in the
95 physical presence of the principal at the time of signing.
96 (c) Subsequent to submission of the answers required under
97 paragraph (a), the RON service provider shall give the principal
98 written notice in substantially the following form:
99
100 NOTICE: If you are a vulnerable adult as defined in s. 415.102,
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101 Florida Statutes, the documents you are about to sign are not
102 valid if witnessed by means of audio-video communication
103 technology. If you suspect you may be a vulnerable adult, you
104 should have witnesses physically present with you before
105 signing.
106
107 (d) The act of witnessing an electronic signature through
108 the witness's presence by audio-video communication technology
109 is valid only if, during the audio-video communication, the
110 principal provides verbal answers to all of the following
111 questions, each of which must be asked by the online notary
112 public in substantially the following form:
113 1. Are you currently married? If so, name your spouse.
114 2. Please state the names of anyone who assisted you in
115 accessing this video conference today.
116 3. Please state the names of anyone who assisted you in
117 preparing the documents you are signing today.
118 4. Where are you currently located?
119 5. Who is in the room with you?
120 (e) An online notary public shall consider the responses
121 to the questions specified in paragraph (d) in carrying out of
122 the duties of a notary public as set forth in s. 117.107(5).
123 (f) A principal's responses to the questions in paragraphs
124 (a) and (d) may be offered as evidence regarding the validity of
125 the instrument, but an incorrect answer may not serve as the
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126 sole basis to invalidate an instrument.
127 (g) The presence of a witness with the principal at the
128 time of signing by means of audio-video communication technology
129 is not effective for witnessing the signature of a principal who
130 is a vulnerable adult as defined in s. 415.102. The contestant
131 of an electronic record has the burden of proving that the
132 principal was a vulnerable adult at the time of executing the
133 electronic record.
134 (h) Nothing in this subsection shall:
135 1. Preclude a power of attorney, which includes banking or
136 investment powers enumerated in s. 709.2208, from being
137 effective with respect to any other authority granted therein or
138 with respect to the agent's authority in connection with a real
139 property, commercial, or consumer transaction or loan, to
140 exercise any power specified therein or to execute and deliver
141 instruments obligating the principal or to draw upon the
142 proceeds of such transaction or loan; or
143 2. Affect the nontestamentary aspects of a revocable trust
144 under chapter 736.
145 (i) The electronic record containing an instrument signed
146 by witnesses who were present with the principal by means of
147 audio-video communication technology shall contain a perceptible
148 indication of their presence by such means.
149 (j) Nothing in This subsection does not shall affect the
150 application of s. 709.2119.
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151 (k) The requirements of this subsection do not apply if
152 there are at least two witnesses in the physical presence of the
153 principal at the time of the notarial act.
154 (6) Pursuant to subpoena, court order, an authorized law
155 enforcement inquiry, or other lawful request, a RON service
156 provider or online notary public shall provide:
157 (a) The last known address of each witness who witnessed
158 the signing of an electronic record using audio-video
159 communication technology under this section.
160 (b) A principal's responses to the questions in paragraph
161 (5)(a) or paragraph (5)(d) (5)(b), as applicable.
162 (c) An uninterrupted and unedited copy of the recording of
163 the audio-video communication in which an online notarization is
164 performed.
165 (7) Except as set forth in s. 709.2202, an act of
166 witnessing performed pursuant to this section satisfies any
167 requirement that the witness must be a subscribing or attesting
168 witness or must be in the presence of the principal at the time
169 of signing.
170 (8) The law of this state governs the validity of
171 witnessing supervised by an online notary public pursuant to
172 this section, regardless of the physical location of the witness
173 at the time of witnessing. State and federal courts in this
174 state have subject matter jurisdiction over any dispute arising
175 out of an act of witnessing pursuant to this section, and may
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176 issue subpoenas for records or to require the appearance of
177 witnesses in relation thereto in accordance with applicable law.
178 Section 3. Paragraph (c) of subsection (2) of section
179 709.2119, Florida Statutes, is amended to read:
180 709.2119 Acceptance of and reliance upon power of
181 attorney.—
182 (2) A third person may require:
183 (c) A written affidavit executed by the agent under this
184 subsection which may, but need not, be in the following form:
185
186 STATE OF............
187 COUNTY OF............
188
189 Before me, the undersigned authority, personally appeared
190 ...(agent)... ("Affiant") by the means specified herein, who
191 swore or affirmed that:
192 1. Affiant is the agent named in the Power of Attorney
193 executed by ...(principal)... ("Principal") on ...(date)....
194 2. This Power of Attorney is currently exercisable by
195 Affiant. The principal is domiciled in ...(insert name of state,
196 territory, or foreign country)....
197 3. To the best of Affiant's knowledge after diligent
198 search and inquiry:
199 a. The Principal is not deceased;
200 b. Affiant's authority has not been suspended by
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201 initiation of proceedings to determine incapacity or to appoint
202 a guardian or a guardian advocate;
203 c. Affiant's authority has not been terminated by the
204 filing of an action for dissolution or annulment of Affiant's
205 marriage to the principal, or their legal separation; and
206 d. There has been no revocation, or partial or complete
207 termination, of the power of attorney or of Affiant's authority.
208 4. Affiant is acting within the scope of authority granted
209 in the power of attorney.
210 5. Affiant is the successor to ...(insert name of
211 predecessor agent)..., who has resigned, died, become
212 incapacitated, is no longer qualified to serve, has declined to
213 serve as agent, or is otherwise unable to act, if applicable.
214 6. Affiant agrees not to exercise any powers granted by
215 the Power of Attorney if Affiant attains knowledge that the
216 power of attorney has been revoked, has been partially or
217 completely terminated or suspended, or is no longer valid
218 because of the death or adjudication of incapacity of the
219 Principal.
220
221 ................
222 ...(Affiant)...
223
224 Sworn to (or affirmed) and subscribed before me by means of
225 ☐ physical presence or ☐ online notarization this .... day of
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226 ...(month)..., ...(year)..., by ...(name of person making
227 statement)...
228
229 ...(Signature of Notary Public-State of Florida)...
230
231 ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
232
233 Personally Known OR Produced Identification
234 ...(Type of Identification Produced)...
235
236 Section 4. Paragraph (e) of subsection (2) of section
237 732.401, Florida Statutes, is amended to read:
238 732.401 Descent of homestead.—
239 (2) In lieu of a life estate under subsection (1), the
240 surviving spouse may elect to take an undivided one-half
241 interest in the homestead as a tenant in common, with the
242 remaining undivided one-half interest vesting in the decedent's
243 descendants in being at the time of the decedent's death, per
244 stirpes.
245 (e) The election must shall be made by filing a notice of
246 election containing the legal description of the homestead
247 property for recording in the official record books of the
248 county or counties where the homestead property is located. The
249 notice must be in substantially the following form:
250
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251 ELECTION OF SURVIVING SPOUSE
252 TO TAKE A ONE-HALF INTEREST OF
253 DECEDENT'S INTEREST IN
254 HOMESTEAD PROPERTY
255
256 STATE OF........
257 COUNTY OF........
258
259 1. The decedent, ................, died on .............
260 On the date of the decedent's death, the decedent was married to
261 ............, who survived the decedent.
262 2. At the time of the decedent's death, the decedent owned
263 an interest in real property that the affiant believes to be
264 homestead property described in s. 4, Article X of the State
265 Constitution, which real property being in ........ County,
266 Florida, and described as: ...(description of homestead
267 property)....
268 3. Affiant elects to take one-half of decedent's interest
269 in the homestead as a tenant in common in lieu of a life estate.
270 4. If affiant is not the surviving spouse, affiant is the
271 surviving spouse's attorney in fact or guardian of the property,
272 and an order has been rendered by a court having jurisdiction of
273 the real property authorizing the undersigned to make this
274 election.
275
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276 ............
277 ...(Affiant)...
278
279 Sworn to (or affirmed) and subscribed before me by means of ☐
280 physical presence or ☐ online notarization this .... day of
281 ...(month)..., ...(year)..., by ...(affiant)...
282
283 ...(Signature of Notary Public-State of Florida)...
284
285 ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
286
287 Personally Known OR Produced Identification
288
289 ...(Type of Identification Produced)...
290 Section 5. Subsection (1) of section 732.503, Florida
291 Statutes, is amended to read:
292 732.503 Self-proof of will.—
293 (1) A will or codicil executed in conformity with s.
294 732.502 may be made self-proved at the time of its execution or
295 at any subsequent date by the acknowledgment of it by the
296 testator and the affidavits of the witnesses, made before an
297 officer authorized to administer oaths and evidenced by the
298 officer's certificate attached to or following the will, in
299 substantially the following form:
300
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301 STATE OF........ FLORIDA
302 COUNTY OF ....
303 I,............, declare to the officer taking my
304 acknowledgment of this instrument, and to the subscribing
305 witnesses, that I signed this instrument as my will.
306
307 ........................
308 Testator
309
310 We,........and........, have been sworn by the officer
311 signing below, and declare to that officer on our oaths that the
312 testator declared the instrument to be the testator's will and
313 signed it in our presence and that we each signed the instrument
314 as a witness in the presence of the testator and of each other.
315
316 ........................
317 Witness
318
319 ........................
320 Witness
321
322 Acknowledged and subscribed before me by means of ☐
323 physical presence or ☐ online notarization by the testator,
324 (type or print testator's name), who ☐ is personally known to me
325 or ☐ who has produced (state type of identification—see s.
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326 117.05(5)(b)2.) as identification, and sworn to and subscribed
327 before me by each of the following witnesses:, (type or print
328 name of first witness) who ☐ is personally known to me or ☐ who
329 has produced (state type of identification—see s.
330 117.05(5)(b)2.) as identification, by means of ☐ physical
331 presence or ☐ online notarization; and (type or print name of
332 second witness) who ☐ is personally known to me or ☐ who has
333 produced (state type of identification—see s. 117.05(5)(b)2.) as
334 identification, by means of ☐ physical presence or ☐ online
335 notarization. and Subscribed by me in the presence of the
336 testator and the subscribing witnesses, by the means specified
337 herein, all on (date).
338 ...(Signature of Officer)...
339 ...(Print, type, or stamp commissioned name and affix official
340 seal)...
341
342 Section 6. Subsection (7) of section 732.521, Florida
343 Statutes, is amended to read:
344 732.521 Definitions.—As used in ss. 732.521-732.525, the
345 term:
346 (7) "Qualified custodian" means a person who meets the
347 requirements of s. 732.524(1) s. 732.525(1).
348 Section 7. Paragraph (b) of subsection (5) of section
349 732.703, Florida Statutes, is amended to read:
350 732.703 Effect of divorce, dissolution, or invalidity of
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351 marriage on disposition of certain assets at death.—
352 (5) In the case of an asset described in paragraph (3)(a),
353 paragraph (3)(b), or paragraph (3)(c), unless payment or
354 transfer would violate a court order directed to, and served as
355 required by law on, the payor:
356 (b) As to any portion of the asset required by the
357 governing instrument to be paid after the decedent's death to a
358 primary beneficiary explicitly designated in the governing
359 instrument as the decedent's spouse:
360 1. If the death certificate states that the decedent was
361 married at the time of his or her death to that spouse, the
362 payor is not liable for making a payment on account of, or for
363 transferring an interest in, that portion of the asset to such
364 primary beneficiary.
365 2. If the death certificate states that the decedent was
366 not married at the time of his or her death, or if the death
367 certificate states that the decedent was married to a person
368 other than the spouse designated as the primary beneficiary at
369 the time of his or her death, the payor is not liable for making
370 a payment on account of, or for transferring an interest in,
371 that portion of the asset to a secondary beneficiary under the
372 governing instrument.
373 3. If the death certificate is silent as to the decedent's
374 marital status at the time of his or her death, the payor is not
375 liable for making a payment on account of, or for transferring
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376 an interest in, that portion of the asset to the primary
377 beneficiary upon delivery to the payor of an affidavit validly
378 executed by the primary beneficiary in substantially the
379 following form:
380
381 STATE OF............
382 COUNTY OF............
383
384 Before me, the undersigned authority, personally
385 appeared by the means specified herein, ...(type or
386 print Affiant's name)... ("Affiant"), who swore or
387 affirmed that:
388 1. ...(Type or print name of Decedent)...
389 ("Decedent") died on ...(type or print the date of the
390 Decedent's death)....
391 2. Affiant is a "primary beneficiary" as that term is
392 defined in Section 732.703, Florida Statutes. Affiant
393 and Decedent were married on ...(type or print the
394 date of marriage)..., and were legally married to one
395 another on the date of the Decedent's death.
396 ...(Affiant)...
397 Sworn to or affirmed before me by means of ☐ physical
398 presence or ☐ online notarization by the affiant who ☐
399 is personally known to me or ☐ who has produced
400 ...(state type of identification)... as identification
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401 this .... day of ...(month)..., ...(year)....
402 ...(Signature of Officer)...
403 ...(Print, Type, or Stamp Commissioned name of Notary
404 Public)...
405
406 4. If the death certificate is silent as to the decedent's
407 marital status at the time of his or her death, the payor is not
408 liable for making a payment on account of, or for transferring
409 an interest in, that portion of the asset to the secondary
410 beneficiary upon delivery to the payor of an affidavit validly
411 executed by the secondary beneficiary affidavit in substantially
412 the following form:
413
414 STATE OF............
415 COUNTY OF............
416
417 Before me, the undersigned authority, personally
418 appeared by the means specified herein, ...(type or
419 print Affiant's name)... ("Affiant"), who swore or
420 affirmed that:
421 1. ...(Type or print name of Decedent)...
422 ("Decedent") died on ...(type or print the date of the
423 Decedent's death)....
424 2. Affiant is a "secondary beneficiary" as that term
425 is defined in Section 732.703, Florida Statutes. On
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426 the date of the Decedent's death, the Decedent was not
427 legally married to the spouse designated as the
428 "primary beneficiary" as that term is defined in
429 Section 732.703, Florida Statutes.
430
431 ...(Affiant)...
432 Sworn to or affirmed before me by means of ☐ physical
433 presence or ☐ online notarization by the affiant who ☐
434 is personally known to me or ☐ who has produced
435 ...(state type of identification)... as identification
436 this .... day of ...(month)..., ...(year)....
437 ...(Signature of Officer)...
438 ...(Print, Type, or Stamp Commissioned name of Notary
439 Public)...
440
441 Section 8. Subsection (1) of section 747.051, Florida
442 Statutes, is amended to read:
443 747.051 Summary procedure.—
444 (1) If the wife of any person defined as an absentee in s.
445 747.01(1), or his next of kin if said absentee has no wife,
446 shall wish to sell or transfer any property of the absentee
447 which has a gross value of less than $5,000, or shall require
448 the consent of the absentee in any matter regarding the
449 absentee's children or in any other matter in which the gross
450 value of the subject matter is less than $5,000, she may apply
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451 to the circuit court for an order authorizing said sale,
452 transfer, or consent without opening a full conservatorship
453 proceeding as provided by this chapter. She may make the
454 application without the assistance of an attorney. Said
455 application shall be made by petition on the following form,
456 which form shall be made readily available to the applicant by
457 the clerk of the circuit court:
458
459 In the Circuit Court
460
461 In re: ...(Absentee)..., case number .....
462
463 PETITION FOR SUMMARY RELIEF
464
465 Petitioner, ...(Name)..., whose residence is ...(Street &
466 number)..., ...(City or town)..., and ...(County)..., Florida,
467 and who is the ...(Describe relationship to absentee)... of the
468 absentee, ...(Name)..., states that the absentee has been
469 ...(Imprisoned or missing in action)... since ...(Date)... when
470 ...(Describe details).... Petitioner desires to sell/transfer
471 ...(Describe property)... of the value of ...(Value)... because
472 ...(Give reasons).... The terms of sale/transfer are ...(Give
473 reasons).... Petitioner requires the consent of the absentee for
474 the purpose of .....
475 ...(Petitioner)...
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476 State of .... Florida
477 County of....
478
479 Sworn to (or affirmed) and subscribed before me by means of
480 ☐ physical presence or ☐ online notarization this .... day of
481 ........, ...(year)..., by ...(name of person making
482 statement)....
483
484 ...(Signature of Notary Public - State of Florida)...
485 ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
486 Personally Known ........ OR Produced Identification
487 Type of Identification Produced........................
488
489 Section 9. The amendments made by this act are remedial in
490 nature and shall apply retroactively to January 1, 2020.
491 Section 10. This act shall take effect upon becoming a
492 law.
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HB 535
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 535 Electronic Dissemination of Commercial Recordings and Audiovisual Works
SPONSOR(S): Busatta Cabrera
TIED BILLS: IDEN./SIM. BILLS: SB 1542
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform Subcommittee 17 Y, 0 N Wright Anstead
2) Civil Justice & Property Rights Subcommittee 16 Y, 0 N Mathews Jones
3) Commerce Committee Wright Hamon
SUMMARY ANALYSIS
The True Origin of Digital Goods Act (Act) requires owners or operators of websites that electronically
disseminate commercial recordings or audiovisual works to Florida consumers to clearly post on the website
and make readily accessible to a consumer using or visiting the website the following identifying information:
The true and correct name of the operator or owner;
The operator or owner’s physical address; and
The operator or owner’s telephone number or e-mail address.
For purposes of the Act, “electronic dissemination” means initiating a transmission of, making available, or
otherwise offering a commercial recording or audiovisual work for distribution through the Internet or other
digital network, regardless of whether another person has previously electronically disseminated the same
commercial recording or audiovisual work.
The Act gives a right to injunctive relief for owners, assignees, authorized agents, or licensees of a commercial
recording or audio visual work whose work appears on a website that has not posted identifying information in
violation of the Act.
The bill amends the definition of “electronic dissemination” under the Act to include “display” and “performance”
to require a person who owns or operates a streaming service dealing in commercial recordings and
audiovisual works to post their identifying information on the website.
The bill provides an effective date of July 1, 2021.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h0535d.COM
DATE: 4/2/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
True Origin of Digital Goods Act
The True Origin of Digital Goods Act (Act) requires owners or operators of websites that electronically
disseminate commercial recordings or audiovisual works to Florida consumers to clearly post on the
website and make readily accessible to a consumer using or visiting the website the following
identifying information:1
The true and correct name of the operator or owner;
The operator or owner’s physical address; and
The operator or owner’s telephone number or e-mail address.
“Electronic dissemination” under the Act means initiating a transmission of, making available, or
otherwise offering a commercial recording or audiovisual work for distribution through the Internet or
other digital network, regardless of whether another person has previously electronically disseminated
the same commercial recording or audiovisual work.2
The Act does not protect copyrighted material, but rather governs “commercial recordings or
audiovisual works,” defined broadly to include a recording or audiovisual work whose owner, assignee,
authorized agent, or licensee has disseminated or intends to disseminate such work for sale, rental, or
performance or exhibition to the public, regardless of whether the person seeks commercial advantage
or private financial gain from the dissemination. The Act applies to websites that disseminate
copyrighted material as well as any disseminated recording or audiovisual work, regardless of the
disseminator’s intent to seek commercial advantage or financial gain from the work.3
The Act gives a right to injunctive relief for owners, assignees, authorized agents, or licensees of a
commercial recording or audio visual work whose work appears on a website that has not posted
identifying information in violation of the Act. Before initiating the civil action provided for in the Act, the
aggrieved party must “make reasonable efforts” to place an individual alleged to be in violation of the
section on notice that the owner or operator may be in violation of the Act, and that failure to cure the
violation within 14 days may result in civil action. The prevailing party may also recover necessary
expenses and reasonable attorney fees. These remedies are available as a supplement to other state
and federal criminal and civil law provisions.4
The Act authorizes the court to make appropriate orders to compel compliance with the Act upon
motion of the party instituting the action.5
The Act exempts:
providers of interactive computer services, communication services, commercial mobile
services, information services that provide transmission, storage, or caching of electronic
communications or other related telecommunications service, and commercial mobile radio
services;6 and
commercial recordings and audiovisual works that are video games, depictions of video game
play, and streaming of video game activity.7
Streaming Services
1 S. 501.155(4)(a), F.S.
2 S. 501.155(3)(b), F.S.
3 S. 501.155(3)(a), F.S.
4 S. 501.155(5), F.S.
5 Id.
6 S. 501.155(2)(b), F.S.
7 S. 501.155(3)(a), F.S.
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Generally, a streaming service is an online provider of entertainment, including music and movies, that
delivers the content via an Internet connection to a user or subscriber's computer, television, or mobile
device.8
Effect of the Bill
The bill amends the definition of “electronic dissemination” to read: “initiating a transmission of, making
available, or otherwise offering a commercial recording or audiovisual work for distribution, display, or
performance through the Internet or other digital network, regardless of whether another person has
previously electronically disseminated the same commercial recording or audiovisual work.”
Therefore, the bill requires a person who owns or operates a streaming service dealing in commercial
recordings and audiovisual works, not subject to an exemption, to post their identifying information on
the website.
The bill provides an effective date of July 1, 2021.
B. SECTION DIRECTORY:
Section 1: Amends s. 501.155, F.S.; requiring certain notice requirements on websites that offer
certain recordings and work for display or performance.
Section 2: Provides an effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may allow more owners, assignees, authorized agents, or licensees of a commercial recording
or audio visual work to initiate actions based on improper notice.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
8 PC Mag Digital Group, Streaming Service, https://www.pcmag.com/encyclopedia/term/streaming-service (last visited
Mar. 26, 2021).
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1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to affect county or municipal governments.
2. Other:
For a court to exercise jurisdiction over a respondent, it must have subject matter jurisdiction and
personal jurisdiction.9 A non-resident respondent may have sufficient contacts with Florida if he or
she commits acts expressly enumerated in Florida’s long-arm statute.10 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 the matter that brings him or her into court.11
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.
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.12 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.”13
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
9 Caiazzo v. American Royal Arts Corp., 73 So. 3d 245, 250 (Fla. 4th DCA 2011).
10 Id; S. 48.193, F.S.
11 Caiazzo v. American Royal Arts Corp., 73 So. 3d 245, 250 (Fla. 4th DCA 2011).
12 Turner Broadcasting System, Inc. v. F.C.C., 520 U.S. 180,189 (U.S. 1997).
13 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)).
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 535 2021
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.
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hb0535-00
CS/HB 539
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 539 Renewable Energy
SPONSOR(S): Environment, Agriculture & Flooding Subcommittee, Byrd
TIED BILLS: IDEN./SIM. BILLS: CS/SB 896
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Tourism, Infrastructure & Energy Subcommittee 17 Y, 0 N Willson Keating
2) Environment, Agriculture & Flooding 17 Y, 1 N, As CS Gawin Moore
Subcommittee
3) Commerce Committee Willson Hamon
SUMMARY ANALYSIS
Section 366.91, F.S., defines “renewable energy” as electrical energy produced from a method that uses one
or more of the following fuels or energy sources: hydrogen produced from sources other than fossil fuels;
biomass; solar energy; geothermal energy; wind energy; ocean energy; and hydroelectric power.
Certain renewable energy projects are eligible for a variety of financing and permitting benefits. Additionally,
public utilities and municipal utilities are required to continuously make available standard offer contracts for
the purchase of renewable energy, subject to certain price limitations, with the costs of any purchases
recoverable from the utility’s ratepayers.
The bill defines "renewable natural gas" as anaerobically-generated biogas, landfill gas, or waste-water
treatment gas refined to a methane content of 90 percent or greater which is capable of being used as
transportation fuel, for electric power generation, or is of a quality capable of being injected into a natural gas
pipeline. The bill defines “biogas” as a mixture of carbon dioxide and hydrocarbons, primarily methane gas,
which is released from the biological decomposition of organic materials. The bill further specifies that
hydrogen resulting from certain sources is considered renewable energy.
The bill authorizes the Florida Public Service Commission (PSC) to approve cost recovery by a gas public
utility for contracts for the purchase of renewable natural gas in which the pricing provisions exceed the current
market price of natural gas, but are otherwise deemed reasonable and prudent by the PSC.
The bill does not appear to have a fiscal impact on state or local governments.
The bill provides an effective date of July 1, 2021.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0539d.COM
DATE: 4/2/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Renewable Energy
Florida Renewable Energy Policy
Section 366.92, F.S. declares that it is the intent of the Legislature to:
promote the development of renewable energy;
protect the economic viability of Florida’s existing renewable energy facilities;
diversify the types of fuel used to generate electricity in Florida;
lessen Florida’s dependence on natural gas and fuel oil for the production of electricity;
minimize the volatility of fuel costs;
encourage investment within the state;
improve environmental conditions; and
minimize the costs of power supply to electric utilities and their customers.
Section 366.91, F.S., defines “renewable energy” as electrical energy produced from a method that
uses one or more of the following fuels or energy sources:
hydrogen produced from sources other than fossil fuels;
biomass;1
solar energy;
geothermal energy;
wind energy;
ocean energy; and
hydroelectric power.
Renewable energy also includes the alternative energy resource, waste heat, from sulfuric acid
manufacturing operations and electrical energy produced using pipeline-quality synthetic gas produced
from waste petroleum coke with carbon capture and sequestration.
Contracts for the Purchase of Renewable Energy
Since 2005, public utilities2 have been required to continuously make available standard offer contracts
for the purchase of renewable energy, with the costs of any purchases recoverable from the utility’s
ratepayers.3 The law limits the price paid by a utility for renewable energy to the utility’s full avoided
costs, which are defined in s. 366.051, F.S., as the costs the utility would have incurred to produce the
energy or capacity itself or purchase it from another source if not for the purchase of the renewable
energy.4 Capacity payments are not required if, due to the operational characteristics of the renewable
energy generator or the anticipated peak and off-peak availability and capacity factor of the utility's
1 Section 366.91(2)(a), F.S., defines “biomass” as “a power source that is comprised of, but not limited to, combustible
residues or gases from forest products manufacturing, waste, byproducts, or products from agricultural and orchard crops,
waste or coproducts from livestock and poultry operations, waste or byproducts from food processing, urban wood waste,
municipal solid waste, municipal liquid waste treatment operations, and landfill gas.”
2 Section 366.02(1), F.S., defines a “public utility” as “every person, corporation, partnership, association, or other legal
entity and their lessees, trustees, or receivers supplying electricity or gas (natural, manufactured, or similar gaseous
substance) to or for the public within this state.” The term “public utility” does not include rural electric cooperatives,
municipal electric utilities, special natural gas districts, natural gas transmission pipeline companies, natural gas
marketers, or propane suppliers.
3 S. 366.91(3), F.S. Each contract must provide a contract term of at least ten years.
4 This pricing scheme reflects limits established by federal law, which have been in place since adoption of the Public
Utilities Regulatory Policy Act in 1978.
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avoided unit, the renewable energy producer is unlikely to provide any capacity value to the utility or the
electric grid during the contract term.5 Prudent and reasonable costs associated with the contract must
be recovered from the ratepayers of the contracting utility, without differentiation among customer
classes, through the appropriate cost-recovery mechanism administered by the Florida Public Service
Commission (PSC).6
Similarly, each municipal electric utility7 and rural electric cooperative8 whose annual sales, as of July
1, 1993, to retail customers were greater than 2,000 gigawatt hours must continuously offer a purchase
contract with a minimum term of 10 years to producers of renewable energy. These contracts must
include payment provisions for energy and capacity which are based upon the utility’s or cooperative’s
full avoided costs, as determined by the governing body of the municipal utility or cooperative.9
A contracting producer of renewable energy must pay the actual costs of its interconnection with the
transmission grid or distribution system.10
Effect of the Bill
The bill defines "renewable natural gas" as anaerobically-generated biogas, landfill gas, or waste-water
treatment gas refined to a methane content of 90 percent or greater which is capable of being used as
transportation fuel, for electric power generation, or is of a quality capable of being injected into a
natural gas pipeline.
The bill defines "biogas" as a mixture of carbon dioxide and hydrocarbons, primarily methane gas,
which is released from the biological decomposition of organic materials.
The bill expands the definition of "renewable energy" to include hydrogen “resulting” from certain
sources.
The bill authorizes the PSC to approve cost recovery by a gas public utility for contracts for the
purchase of renewable natural gas in which the pricing provisions exceed the current market price of
natural gas, but are otherwise deemed reasonable and prudent by the PSC.
B. SECTION DIRECTORY:
Section 1 Amends s. 366.91, F.S.; defining the terms "biogas" and "renewable natural gas"; revising
the definition of the term "renewable energy" to include hydrogen resulting from certain
sources.
Section 2 Amends s. 366.92, F.S.; revising the definition of “renewable energy.”
Section 3 Amends s. 373.236, F.S.; conforming a cross-reference.
Section 4 Amends s. 403.973, F.S.; conforming a cross-references.
5 S. 366.91(3), F.S.
6 Id.
7 There are 33 municipal electric (public power) utilities in the state, which serve approximately 3 million people or 14
percent of Florida’s population. Municipal utilities are not-for-profit and governed by an elected city commission, or an
appointed or elected utility board. They raise capital through operating revenues or the sale of tax-exempt bonds. See
Florida Municipal Electric Association, Florida Municipal Utility Map, https://www.publicpower.com/florida-municipal-utility-
map (last visited Mar. 5, 2021).
8 Rural electric cooperatives are cooperative, nonprofit membership corporations organized under ch. 425, F.S., for the
purpose of supplying electric energy and promoting and extending the use thereof in rural areas. Florida has 16
distribution cooperatives and 2 generation and transmission cooperatives that supply electricity to more than 2.7 million
Floridians in 57 of Florida’s 67 counties. Cooperatives are owned by the members they serve and provide at-cost electric
service to their consumer-members. See Florida Electric Cooperatives Association, About, https://feca.com/about/ (last
visited Mar. 5, 2021).
9 S. 366.91(4), F.S.
10 S. 366.91(8), F.S.
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Section 5 Reenacts s. 288.9606(7), F.S.; relating to the issuance of revenue bonds, to incorporate
the amendments made by the bill.
Section 6 Provides an effective date of July 1, 2021.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may have a positive economic impact on the producers of renewable natural gas if the PSC
approves cost recovery for a gas public utility’s contract for renewable natural gas.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
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IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On March 23, 2021, the Environment, Agriculture & Flooding Subcommittee adopted an amendment and
reported the bill favorably as a committee substitute. The amendment revised the definition of “renewable
energy” and authorized the PSC to approve cost recovery by a public gas utility for contracts for certain
purchases.
This analysis is drafted to the committee substitute as approved by the Environment, Agriculture &
Flooding Subcommittee.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 539 2021
1 A bill to be entitled
2 An act relating to renewable energy; amending s.
3 366.91, F.S.; defining the terms "biogas" and
4 "renewable natural gas"; revising the definition of
5 the term "renewable energy"; authorizing the Public
6 Service Commission to approve cost recovery by gas
7 public utilities for contracts for the purchase of
8 renewable natural gas if specified conditions are met;
9 amending s. 366.92, F.S.; revising the definition of
10 the term "renewable energy" to include renewable
11 natural gas; amending ss. 373.236, and 403.973, F.S.;
12 conforming cross-references; reenacting s.
13 288.9606(7), F.S., relating to the issuance of revenue
14 bonds, to incorporate the amendments made by the act;
15 providing an effective date.
16
17 Be It Enacted by the Legislature of the State of Florida:
18
19 Section 1. Present paragraphs (a) through (d) of
20 subsection (2) of section 366.91, Florida Statutes, are
21 redesignated as paragraphs (b) through (e), respectively, a new
22 paragraph (a) and paragraph (f) are added to that subsection,
23 present paragraph (d) of that subsection is amended, and
24 subsection (9) is added to that section to read:
25 366.91 Renewable energy.—
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26 (2) As used in this section, the term:
27 (a) "Biogas" means a mixture of carbon dioxide and
28 hydrocarbons, primarily methane gas, which is released from the
29 biological decomposition of organic materials.
30 (e)(d) "Renewable energy" means electrical energy produced
31 from a method that uses one or more of the following fuels or
32 energy sources: hydrogen produced or resulting from sources
33 other than fossil fuels, biomass, solar energy, geothermal
34 energy, wind energy, ocean energy, and hydroelectric power. The
35 term includes the alternative energy resource, waste heat, from
36 sulfuric acid manufacturing operations and electrical energy
37 produced using pipeline-quality synthetic gas produced from
38 waste petroleum coke with carbon capture and sequestration.
39 (f) "Renewable natural gas" means anaerobically-generated
40 biogas, landfill gas, or waste-water treatment gas refined to a
41 methane content of 90 percent or greater which is capable of
42 being used as transportation fuel, for electric power
43 generation, or is of a quality capable of being injected into a
44 natural gas pipeline.
45 (9) The commission may approve cost recovery by a gas
46 public utility for contracts for the purchase of renewable
47 natural gas in which the pricing provisions exceed the current
48 market price of natural gas, but which are otherwise deemed
49 reasonable and prudent by the commission.
50 Section 2. Paragraph (b) of subsection (2) of section
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CS/HB 539 2021
51 366.92, Florida Statutes, is amended to read:
52 366.92 Florida renewable energy policy.—
53 (2) As used in this section, the term:
54 (b) "Renewable energy" means renewable energy and
55 renewable natural gas as those terms are as defined in s.
56 366.91(2) s. 366.91(2)(d).
57 Section 3. Subsection (7) of section 373.236, Florida
58 Statutes, is amended to read:
59 373.236 Duration of permits; compliance reports.—
60 (7) A permit approved for a renewable energy generating
61 facility or the cultivation of agricultural products on lands
62 consisting of 1,000 acres or more for use in the production of
63 renewable energy, as defined in s. 366.91(2) s. 366.91(2)(d),
64 shall be granted for a term of at least 25 years at the
65 applicant's request based on the anticipated life of the
66 facility if there is sufficient data to provide reasonable
67 assurance that the conditions for permit issuance will be met
68 for the duration of the permit; otherwise, a permit may be
69 issued for a shorter duration that reflects the longest period
70 for which such reasonable assurances are provided. Such a permit
71 is subject to compliance reports under subsection (4).
72 Section 4. Paragraph (f) of subsection (3) and paragraph
73 (b) of subsection (19) of section 403.973, Florida Statutes, are
74 amended to read:
75 403.973 Expedited permitting; amendments to comprehensive
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CS/HB 539 2021
76 plans.—
77 (3)
78 (f) Projects resulting in the production of biofuels
79 cultivated on lands that are 1,000 acres or more or in the
80 construction of a biofuel or biodiesel processing facility or a
81 facility generating renewable energy, as defined in s. 366.91(2)
82 s. 366.91(2)(d), are eligible for the expedited permitting
83 process.
84 (19) The following projects are ineligible for review
85 under this part:
86 (b) A project, the primary purpose of which is to:
87 1. Effect the final disposal of solid waste, biomedical
88 waste, or hazardous waste in this state.
89 2. Produce electrical power, unless the production of
90 electricity is incidental and not the primary function of the
91 project or the electrical power is derived from a fuel source
92 for renewable energy as defined in s. 366.91(2) s. 366.91(2)(d).
93 3. Extract natural resources.
94 4. Produce oil.
95 5. Construct, maintain, or operate an oil, petroleum, or
96 sewage pipeline.
97 Section 5. For the purpose of incorporating the amendment
98 made by this act to section 366.91, Florida Statutes, in a
99 reference thereto, subsection (7) of section 288.9606, Florida
100 Statutes, is reenacted to read:
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101 288.9606 Issue of revenue bonds.—
102 (7) Notwithstanding any provision of this section, the
103 corporation in its corporate capacity may, without authorization
104 from a public agency under s. 163.01(7), issue revenue bonds or
105 other evidence of indebtedness under this section to:
106 (a) Finance the undertaking of any project within the
107 state that promotes renewable energy as defined in s. 366.91 or
108 s. 377.803;
109 (b) Finance the undertaking of any project within the
110 state that is a project contemplated or allowed under s. 406 of
111 the American Recovery and Reinvestment Act of 2009; or
112 (c) If permitted by federal law, finance qualifying
113 improvement projects within the state under s. 163.08.
114 Section 6. This act shall take effect July 1, 2021.
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COMMERCE COMMITTEE
CS/HB 539 by Rep. Byrd
Renewable Energy
AMENDMENT SUMMARY
April 6, 2021
Amendment 1 by Rep. Byrd (line 32):
The amendment restores the current definition of renewable energy for certain purposes.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 539 (2021)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/O OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Commerce Committee
2 Representative Byrd offered the following:
3
4 Amendment (with title amendment)
5 Remove line 32 and insert:
6 energy sources: hydrogen produced from sources
7
8 -----------------------------------------------------
9 T I T L E A M E N D M E N T
10 Remove lines 4-5 and insert:
11 "renewable natural gas"; authorizing the Public
360967 - h539-line32.docx
Published On: 4/5/2021 6:17:56 PM
Page 1 of 1
CS/HB 615
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 615 Community Association Assessment Notices
SPONSOR(S): Regulatory Reform Subcommittee, Rodriguez
TIED BILLS: IDEN./SIM. BILLS: CS/SB 56
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform Subcommittee 16 Y, 0 N, As CS Brackett Anstead
2) Civil Justice & Property Rights Subcommittee 16 Y, 0 N Mawn Jones
3) Commerce Committee Brackett Hamon
SUMMARY ANALYSIS
A condominium is a form of ownership of real property comprised of units which may be owned by one or more
persons along with an undivided right of access to common elements. A cooperative is real property owned by
the cooperative association, with individual units leased to the residents who own shares in the cooperative
association. A homeowners’ association (“HOA”) is an association that is authorized to impose assessments,
responsible for the operation of a community in which voting membership is made up of unit or parcel owners
and membership is a mandatory condition of unit or parcel ownership. Condominium associations, cooperative
associations, and HOAs are collectively referred to as “associations.”
The bill relates to an association’s collection of assessments and notices to owners relating to such
assessments, it requires:
Associations that send account statements or invoices to owners to send them by first-class mail or by
email.
Associations to deliver written notice to every owner at least 30 days before changing their method of
delivering account statements.
Owners to affirmatively acknowledge that they understand the association has changed its method of
delivering account statements before a community association may change its method of delivery.
Associations to maintain the owners’ affirmative acknowledgments as an official record.
The bill prohibits associations from collecting attorney fees related to delinquent assessments without first
delivering a written notice of the delinquent assessments to the unit or parcel owner.
An association must deliver the written notice at least 30 days before the association takes further
action against the owner’s unit or parcel.
The written notice must specify the amount owed and provide the unit or parcel owner an opportunity to
pay the delinquent assessments without paying attorney fees.
There is a rebuttable presumption that an association mailed a notice of delinquent assessment if a
board member, officer, agent of the association, or a licensed community association manager provides
a sworn affidavit attesting to such mailing.
The bill also aligns condominium and cooperative law to HOA law by increasing the period of time a
condominium or cooperative unit owner has to pay a delinquent assessment after receiving an association's
notice of intent to record a lien or foreclose on a lien from 30 days to 45 days.
The bill does not have a fiscal impact on state and local governments.
The bill provides an effective date of July 1, 2021.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
The Florida Division of Condominiums, Timeshares and Mobile Homes (Division), within the
Department of Business and Professional Regulation (DBPR), provides consumer protection for Florida
residents living in regulated communities through education, complaint resolution, mediation and
arbitration, and developer disclosure. The Division has regulatory authority over the following business
entities and individuals:
Condominium associations;
Cooperative associations;
Florida mobile home parks and related associations;
Vacation units and timeshares;
Yacht and ship brokers and related business entities; and
Homeowners' associations (limited to arbitration of election and recall disputes).
Condominiums
A condominium is a form of ownership of real property created pursuant to ch. 718, F.S., comprised of
units which may be owned by one or more persons along with an undivided right of access to common
elements.1 A condominium is created by recording a declaration of condominium in the public records
of the county where the condominium is located.2 A declaration governs the relationships among
condominium unit owners and the condominium association. All unit owners are members of the
condominium association, an entity responsible for the operation and maintenance of the common
elements owned by the unit owners. The condominium association is overseen by an elected board of
directors, commonly referred to as a “board of administration.” The board enacts bylaws which govern
the administration of the association.
Cooperatives
A cooperative is a form of property ownership created pursuant to ch. 719, F.S. The real property is
owned by the cooperative association, and individual units are leased to the residents who own shares
in the cooperative association.3 The lease payment amount is the pro-rata share of the operational
expenses of the cooperative. Cooperatives operate similarly to condominiums and the laws regulating
cooperatives are in many instances nearly identical to those regulating condominiums.
Homeowners’ Associations
A homeowners’ association (HOA) is an association of residential property owners in which voting
membership is made up of parcel owners, in which membership is a mandatory condition of parcel
ownership, and which is authorized to impose assessments that, if unpaid, may become a lien on the
parcel.4 Only HOAs whose covenants and restrictions include mandatory assessments are regulated by
ch. 720, F.S. Like a condominium or cooperative, an HOA is administered by an elected board of
directors. The powers and duties of an HOA includes the powers and duties provided in ch. 720, F.S.,
and in the governing documents of the association, which include the recorded covenants and
restrictions, together with the bylaws, articles of incorporation, and duly adopted amendments to those
documents. No state agency has direct oversight of HOAs. However, Florida law provides procedures
1
S. 718.103(11), F.S.
2
S. 718.104(2), F.S.
3
Ss. 719.103(2) and (26), F.S.
4
S. 720.301(9), F.S.
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and minimum requirements for HOA operation and provides for a mandatory binding arbitration
program, administered by the Division, only for certain election disputes.
Official Records
Condominiums, cooperatives, and HOAs (associations) are required to maintain official records for at
least 7 years. The official records must include:5
A copy of the articles of incorporation, declaration, bylaws, and rules of the association;
Meeting minutes;
A roster of all owners or members, including the electronic mailing addresses and fax numbers
of unit owners consenting to receive notice by electronic transmission;
A copy of any contracts to which the association is a party or under which the association or the
unit owners or members have an obligation;
Accounting records for the association, which includes:
o Accurate, itemized, and detailed records of all receipts and expenditures.
o A current account and a periodic statement of the account for each unit or parcel
designating the name of the owner, the due date and amount of each assessment, the
amount paid on the account, and the balance due.
o All audits, reviews, accounting statements, and financial reports of the association or
condominium.
o All contracts for work to be performed. Bids for work to be performed are also
considered official records and must be maintained by the association.
All contracts for work to be performed, including bids for work, materials, and equipment.
Cooperatives and HOAs are only required to maintain bids for one year;
A copy of the plans, permits, warranties, and other items provided by the developer; and
All other written records which are related to the operation of the association.
An association must maintain its official records within the state of Florida and make them available for
inspection within 45 miles of the association or within the county where the association is located.6
Unit owners may request to inspect and make copies of an association’s official records. An association
must make the records available for inspection within 10 business days of receiving a written request.
Failure to provide an owner or renter the requested records within 10 business days of receiving a
request creates a rebuttable presumption that the association willfully failed to provide the records. An
owner who is denied access to the records is entitled to damages and costs.7
An association may adopt reasonable rules regarding the frequency, time, location, notice, and manner
of record inspections. An association also has the option to make the official records available
electronically via the Internet or in an electronic format viewable on a computer screen.8 Additionally,
condominium associations with 150 or more units must maintain a website with digital copies of certain
official records such as meeting notices, a copy of the articles of incorporation, declaration, bylaws, and
rules of the association.9
However, the following records are not available for inspection by owners:10
Records protected by the lawyer-client privilege;
Information obtained by an association in connection with the transfer of a unit or parcel;
Personnel records of association or management company employees;
Unit owner medical records;
5
Ss. 718.111(12)(a), 719.104(2), and 720.303(4)-(5), F.S.
6
Ss. 718.111(12)(b)-(c), 719.104(2)(b)-(c), and 720.303(5), F.S.
7
Id.
8
Id.
9
Ss. 718.111(12)(b), and (g), F.S.
10
Ss. 718.111(12)(c), 719.104(2)(c), and 720.303(5), F.S.
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Personnel identifying information such as social security numbers, driver license numbers, and
credit card numbers;
Electronic security measures that are used to safeguard data; and
The software and operating system used by the association which allow the manipulation of
data.
Statements of the Account
A statement of the account11 is an account statement that details the outstanding amount that a unit or
parcel owner owes to the association. Associations must maintain a current account and a periodic12
statement of the account for each unit or parcel, which designates the name of the owner, the due date
and amount of each assessment, the amount paid on the account, and the balance due.13
Statements of the account for each unit or parcel owner are part of the official records, which are
available for inspection.14 Associations may also deliver statements of the account or invoices for
assessment to the unit or parcel owners. However, current law does not specify how an association
must deliver statements of the account to owners or invoices for assessment, e.g., by regular mail or
email. Current law also does not provide a process to notify unit or parcel owners, if an association
alters its method of delivering statements of the account.
Assessments
Current law gives associations the ability to levy and collect assessments from unit or parcel owners.
This allows the association to carry out its responsibility for the association’s management, operation,
and maintenance.15 In addition to levying assessments, associations also have the power to establish
the time when each assessment is due, including when an assessment becomes delinquent.16
The most common assessments are those required to fund an association’s common expenses
identified in an association’s annual budget. The amount to fund the common expenses and the
assessments required to meet that amount are determined when an association’s budget is adopted.17
In contrast, a special assessment is an assessment levied against unit or parcel owners for unexpected
expenses that are over and above those anticipated by the annual budget.18
When the amount of an assessment has been determined, the association must establish a payment
schedule for the owners in accordance with the association’s bylaws. For condominium and
cooperative associations, payments must be made in advance and they must be paid at least quarterly.
The payments must be sufficient to provide the funds necessary to pay all the anticipated operating
expenses and all unpaid expenses previously incurred.19
A unit or parcel owner may not avoid paying assessments by waiving the use of common elements or
services in the association. No unit or parcel owner may be relieved from liability for all or part of an
assessment.20 Boards must keep account of the assessments levied against every unit or parcel owner
11
A statement of the account is different from an estoppel certificate. An estoppel certificate issued by an association certifies the total
debt owed to the association for unpaid financial obligations by a parcel owner or unit owner as of a specified date. An association is
legally bound by the amount stated in the estoppel certificate. A unit or parcel purchaser or a mortgage holder who relies on an
estoppel certificate is protected from any assessments or other monies owed to the association that are not in the certificate. Ss.
718.116(8), 719.108(6), and 720.30851, F.S.
12
Condominium and cooperative associations must maintain a monthly, bimonthly, or quarterly statement of the account. Ss.
718.111(12)(a), and 719.104(2), F.S.
13
Ss. 718.111(12)(a), 719.104(2), and 720.303(4)-(5), F.S.
14
Id.
15
S. 718.111(4), 719.104(5), 720.301(1), and 720.308(1), F.S.
16
See generally, ch. 718, 719, and 720, F.S.
17
Ss. 718.103(1), 718.112(2)(f), 719.103(9), and 719.106(1)(j), and 720.303(6)(a), F.S.
18
Ss. 718.103(24), 718.116(10), 719.103(23), 719.108(9), and 720.303(6), F.S.
19
Ss. 718.112(2)(g), 719.106(1)(g), and 720.30851(1), F.S.
20
Ss. 718.111(4), and 718.116(1)(a), 719.108(1), and 720.3085(2)(a), F.S.
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and the assessments paid by every owner. These records are part of the association’s official
records.21
Liability for Assessments
A unit or parcel owner is liable for all assessments coming due while he or she owns the unit or parcel.
The unit or parcel serves as security for the payment of all assessments owed by an owner.22
If a unit or parcel is sold, the buyer becomes jointly and severally liable with the seller for all unpaid
assessments due prior to the time of the sale. The buyer may attempt to recover the unpaid
assessments from the seller, but the association may look to both the seller and the buyer for the
unpaid assessments.23
Assessments that are not paid on time bear interest at a rate provided in the declaration, which may not
be higher than the highest rate allowed by law, or at a rate of 18 percent per year if no rate is provided.
Interest begins accruing the date a payment becomes delinquent. Additionally, an association may levy
a late fee for any delinquent payment. The amount of the late fee may not exceed $25 or five percent of
the payment, whichever is greater. Associations are entitled to recover any attorney fees and costs
incurred in collecting delinquent payments.24
If an association receives a payment for a delinquent assessment, the payment must first be applied to
any accrued interest, then to any late fee, then to any attorney’s fees or costs, and finally to the
principle balance of the assessment.25
Currently, associations are not required to send a delinquent assessment notice prior to charging late
fees, interest, or attorney fees. According to news reports, this can result in unit or parcel owners being
charged attorney fees that exceed the delinquent assessment.26 According to industry blogs, allowing
associations to collect attorney fees ensures associations are not left holding the bill when they take
legal action.27 However, industry blogs also state that sending a delinquent assessment notice before
taking any action against a unit or parcel owner can help remind owners of their payment obligation and
the majority of owners make a payment upon receiving such notice.28
Claim of Lien
An association has a lien for all unpaid assessments, but not for unpaid fines29. An association may file
a claim of lien for a delinquent assessment with the Clerk of Court in the county where the association
is located. The claim of lien must state the legal description of the unit or parcel, the owner of the unit or
parcel, the association’s name and address, and the assessment amount owed and the due date. An
officer or agent of the association must sign the claim of lien. A filed claim of lien is valid for one year. 30
21
Ss. 718.111(12)(a), 719.104(2), and 720.303(4)-(5), F.S.
22
Ss. 718.111(4), and 718.116(1)(a), 719.108(1), and 720.3085(2)(a), F.S.
23
Id.; Karpay v. Las Brisas Condominium Association, Inc., 517 So. 2d 756, 757 (Fla. 2nd DCA 1987).
24
Ss. 718.116(3), 719.108(3), and 720.3085(3), F.S.
25
Id.
26
Fox 13 Tampa Bay, FOX 13 Investigates: HOA attorney fees a homeowner's nightmare, Fox 13 Tampa Bay (Jan. 20, 2016)
https://www.fox13news.com/news/fox-13-investigates-hoa-attorney-fees-a-homeowners-nightmare (last visited Mar. 26, 2021); Todd
Ulrich, ‘They put me through hell’: Homeowner battles HOA, gets thousands in settlement, WFTV (Feb. 16, 2021)
https://www.wftv.com/news/action9/they-put-me-through-hell-homeowner-battles-hoa-gets-thousands-
settlement/YD26MECEZVBTTMX7E3HOS7JT2I/ (last visited Mar. 26 2021).
27
Jimerson Birr, Condominium Association Recovery of Attorneys’ Fees in Florida, Jimerson Birr, (Dec. 29, 2015)
https://www.jimersonfirm.com/blog/2015/12/condominium-association-recovery-of-attorneys-fees-in-florida/ (last visited Mar. 26,
2021).
28
Jimerson Birr, Five Steps for Collecting Assessment Revenue Through a Condominium Assessment Lien, Jimerson Birr, (Aug. 9,
2018) https://www.jimersonfirm.com/blog/2018/08/florida-condominium-assessment-lien/ (last visited Mar. 26, 2021); Christopher R.
Moore, Step-By-Step Guide To The HOA Assessment Collections Process, Homeowners Protection Bureau, LLC,
https://www.hopb.co/blog/guide-to-hoa-assessment-collections-process#notice-of-delinquency (last visited Mar. 26, 2021).
29
An HOA has a lien on a parcel for a fine that is $1,000 or more. S. 720.305(2), F.S.
30
Ss. 718.116(5), and 718.303(3), 719.108(4), 720.301(1), and (11), 720.305(2), and 720.3085(1), F.S.F.S.
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Prior to filing a claim of lien, an association must give a unit or parcel owner the opportunity to pay a
delinquent assessment. At least 30 days before filing a claim of lien, a condominium or cooperative
association must provide written notice of the association’s intent to file a lien to the unit owner.
However, an HOA must provide a parcel owner the written notice at least 45 days before filing the
claim of lien. The notice must include the following information:31
The amount owed on the owner’s account;
The interest rate for the amounts owed;
A statement that the owner has 30 or 45 days to pay the amount owed or the association will file
a claim of lien against the unit or parcel; and
A breakdown of the amount owed including:
o Maintenance costs due;
o Late fee;
o Interest; and
o Total amount owed.
The notice must be sent by first class and certified mail to the owner’s address listed in the official
records.32 If the address is different than the unit or parcel address, the notice must also be sent to the
unit or parcel. If the address is different than the unit or parcel address and the address is outside the
United States, the association may send the notice by first class mail, instead of first class and certified
mail. Service is deemed delivered upon mailing the notice for condominium and cooperative
associations.33
A unit or parcel owner may challenge a claim of lien by filing a notice of contest of lien with the Clerk of
Court. After a unit owner files a notice of contest, an association has 90 days to commence
enforcement of the lien. The grounds for which a unit owner may not pay an assessment are limited,
such as when the assessment is discriminatory or has been improperly levied by the board.34
An association may bring an action to foreclose on a unit or parcel for unpaid assessments in circuit
court in the same way that a mortgage on real estate is foreclosed. The homestead protections
provided by Florida’s Constitution do not prevent the foreclosure and sale of a unit or parcel. In addition
to an action of foreclosure, an association may also bring a civil action to recover a money judgment for
the unpaid assessments without waiving any claim of lien.35
Prior to foreclosing on a lien, a condominium association or an HOA must provide written notice to the
owner of its intent to foreclose on the lien. A condominium association must provide the notice at least
30 days before foreclosing on the lien. However, an HOA must give a parcel owner the written notice at
least 45 days before foreclosing on the lien. The notice must include the following information:36
A claim of lien has been filed against the owner’s property for failing to pay an assessment(s);
The association intends to foreclose on the lien in 30 or 45 days;
The total amount owed;
The interest rate and the interest owed; and
The contact information for the association’s attorney or representative.
A condominium association must deliver the notice to the unit owner or mail the notice by certified mail
to the unit owner’s last known address. Service is deemed delivered upon mailing the notice.37 The
31
S. 718.121(4) and 718.108(4), 719.108(4), and 720.3085(4), F.S.
32
A cooperative association is only required to send the written notice by certified mail. S. 719.108(4).
33
Id.
34
Ss. 718.116(5), 719.108(4), and 720.3085(1), F.S.; Coral Way Condominium Investments, Inc. v. 21/22 Condominium Ass’n, Inc.,
66 So. 3d 1038, 1041 (Fla. 3rd DCA 2011).
35
S. 718.116(6)(a), 719.108(5), and 720.3085(1) F.S. Bessemer v. Gersten , 381 So. 2d 1344, 1347 (Fla. 1980).
36
Ss. 718.116(6)(a) and 720.3085(5), F.S.
37
Id.
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notice must be sent by first class and certified mail to the owner’s address listed in the official records.
If the address is different than the unit or parcel address, the notice must also be delivered to the unit or
parcel. If the address is different than the unit or parcel address and the address is outside the United
States, the association may send the notice by first class mail.
Effect of the Bill
The bill provides that if associations send statements of the account or invoices for assessments to
their unit or parcel owners, they must send them by first class mail or email to the owner’s email
address in the association’s official records.
The bill also provides that, before an association changes the method of delivering the statement of the
account or an invoice for assessments, the association must deliver written notice of such change to
every unit or parcel owner and a unit or parcel owner must acknowledge the association is changing its
method of delivery. An owner may make the acknowledgement in writing or electronically. The written
notice must be:
Delivered to the owner at least 30 days before the association uses the new delivery method to
send the statement of the account; and
Sent by first class mail to an owner’s address listed in the official records. If the address is
different than the unit or parcel address, the notice must also be delivered to the unit or parcel
owner by first class mail.
o Service is deemed delivered upon mailing the notice.
The bill provides that a unit or parcel owner’s written acknowledgment becomes part of an association’s
official records. However, the written acknowledgments are not available for inspection by the members
of the association.
The bill mirrors condominium and cooperative law to HOA law by increasing the period of time a:
Condominium or cooperative association has to wait before filing a lien from 30 days after
delivering the written notice of intent to file a lien to 45 days after delivering the notice; and
Condominium has to wait before foreclosing on a lien from 30 days after delivering the written
notice of intent to foreclose to 45 days after delivering the notice.
The bill also provides that a condominium association must send the notice of intent to file a lien by
certified and first class mail to the unit owner’s address regardless of whether the unit owner’s address
is outside the United States.
The bill provides that before an association can require payment of attorney fees related to a delinquent
assessment, the association must deliver written notice of the delinquent assessment to the unit or
parcel owner. If the owner pays the delinquent assessment within 30 days, the association may not
assess attorney fees. The written notice must include the following information:
The amount owed on the owner’s account;
The interest rate for the amounts owed;
A statement that the owner has 30 days to pay the amount owed or the association will take
further collection action against the owner’s property in 30 days;
A breakdown of the amount owed including:
o Maintenance costs due;
o Late fee;
o Interest; and
o Total amount owed.
The bill requires that the written notice must be sent by first class mail to an owner’s address listed in
the official records. If the address is different than the unit or parcel address, the notice must also be
mailed to the unit or parcel by first class mail. Service is deemed delivered upon mailing the notice.
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The bill creates a rebuttable presumption that an association mailed the notice of a delinquent
assessment if a board member, officer, agent of the association, or a licensed community association
manager38 provides a sworn affidavit attesting to such mailing.
B. SECTION DIRECTORY:
Section 1. Amends s. 718.111, F.S., adding documents that are a part of a condominium
association’s official records.
Section 2. Amends s. 718.116, F.S., extending the time a condominium association must wait until
it forecloses on a lien.
Section 3. Amends s. 718.121, F.S., relating to payments for assessments and lien claims.
Section 4. Amends s. 719.104, F.S., adding documents that are a part of a cooperative
association’s official records.
Section 5. Amends 719.108, F.S., relating to payments for assessments and lien claims.
Section 6. Amends s. 720.303, F.S., adding documents that are a part of a HOA’s official records.
Section 7. Amends s. 720.3085, F.S., relating to payments for assessments and lien claims.
Section 8. Provides an effective date of July 1, 2021.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The additional notice requirements, restrictions on collecting attorney fees, and increased notice period
for a claim of lien may provide a net positive fiscal impact for association residents.
D. FISCAL COMMENTS:
None.
38
Management companies and managers of residential condominiums with more than ten units or having an annual budget in excess
of $100,000 are required to have a community association manager license from DBPR. The Community Association Management
Practice Act governs the licensure and regulation of community association managers. See part VIII of ch. 468, F.S.
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III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On March 8, 2021, the Regulatory Reform Subcommittee adopted a strike-all amendment and reported the
bill favorably as a committee substitute. The committee substitute:
Specifies that if associations provide account statements to their unit or parcel owners, they must
comply with the delivery requirements in the bill.
Creates a rebuttable presumption that an association mailed a notice of a delinquent assessment if
a board member, officer, agent of the association, or a licensed community association manager
provides a sworn affidavit attesting to such mailing.
The analysis is drafted to the committee substitute as passed by the Regulatory Reform Subcommittee.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 615 2021
1 A bill to be entitled
2 An act relating to community association assessment
3 notices; amending s. 718.111, F.S.; requiring
4 condominium associations to maintain specified
5 affirmative acknowledgments as official records of the
6 association; specifying that such acknowledgments are
7 not accessible to unit owners; amending s. 718.116,
8 F.S.; revising timeframes for foreclosure judgments;
9 conforming provisions to changes made by the act;
10 amending s. 718.121, F.S.; requiring condominium
11 associations to deliver certain invoices for
12 assessments or statements of account to unit owners in
13 a specified manner; requiring condominium associations
14 to give notice to unit owners before changing the
15 method of delivery for invoices for assessments or
16 statements of account; providing requirements for the
17 notice; requiring unit owners to affirmatively
18 acknowledge the changes in delivery methods;
19 prohibiting condominium associations from requiring
20 the payment of attorney fees relating to past due
21 assessments without first providing a specified notice
22 to unit owners; establishing a rebuttable presumption
23 relating to the mailing of such notice; providing
24 requirements for the notice; revising the timeframe
25 for condominium associations to file liens against
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26 condominium units; conforming provisions to changes
27 made by the act; amending s. 719.104, F.S.; requiring
28 cooperative associations to maintain specified
29 affirmative acknowledgments as official records of the
30 association; specifying that such acknowledgments are
31 not accessible to unit owners; amending s. 719.108,
32 F.S.; requiring cooperative associations to deliver
33 certain invoices for assessments or statements of
34 account to unit owners in a specified manner;
35 requiring cooperative associations to give notice to
36 unit owners before changing the method of delivery for
37 invoices for assessments or statements of account;
38 providing requirements for the notice; requiring unit
39 owners to affirmatively acknowledge the changes in
40 delivery methods; prohibiting cooperative associations
41 from requiring the payment of attorney fees relating
42 to past due assessments without first providing
43 specified notice to unit owners; establishing a
44 rebuttable presumption relating to the mailing of such
45 notice; providing requirements for the notice;
46 revising the timeframe for cooperative associations to
47 file liens against cooperative parcels; conforming
48 provisions to changes made by the act; amending s.
49 720.303, F.S.; requiring homeowners' associations to
50 maintain specified affirmative acknowledgments as
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51 official records of the association; specifying that
52 such acknowledgments are not accessible to parcel
53 owners; amending s. 720.3085, F.S.; requiring
54 homeowners' associations to deliver certain invoices
55 for assessments or statements of account to parcel
56 owners in a specified manner; requiring homeowners'
57 associations to give notice to parcel owners before
58 changing the method of delivery for invoices for
59 assessments or statements of account; providing
60 requirements for the notice; requiring parcel owners
61 to affirmatively acknowledge the changes in delivery
62 methods; prohibiting homeowners' associations from
63 requiring the payment of attorney fees relating to
64 past due assessments without first providing specified
65 notice to parcel owners; establishing a rebuttable
66 presumption relating to the mailing of such notice;
67 providing requirements for the notice; providing an
68 effective date.
69
70 Be It Enacted by the Legislature of the State of Florida:
71
72 Section 1. Paragraphs (a) and (c) of subsection (12) of
73 section 718.111, Florida Statutes, are amended to read:
74 718.111 The association.—
75 (12) OFFICIAL RECORDS.—
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76 (a) From the inception of the association, the association
77 shall maintain each of the following items, if applicable, which
78 constitutes the official records of the association:
79 1. A copy of the plans, permits, warranties, and other
80 items provided by the developer pursuant to s. 718.301(4).
81 2. A photocopy of the recorded declaration of condominium
82 of each condominium operated by the association and each
83 amendment to each declaration.
84 3. A photocopy of the recorded bylaws of the association
85 and each amendment to the bylaws.
86 4. A certified copy of the articles of incorporation of
87 the association, or other documents creating the association,
88 and each amendment thereto.
89 5. A copy of the current rules of the association.
90 6. A book or books that contain the minutes of all
91 meetings of the association, the board of administration, and
92 the unit owners.
93 7. A current roster of all unit owners and their mailing
94 addresses, unit identifications, voting certifications, and, if
95 known, telephone numbers. The association shall also maintain
96 the e-mail addresses and facsimile numbers of unit owners
97 consenting to receive notice by electronic transmission. The e-
98 mail addresses and facsimile numbers are not accessible to unit
99 owners if consent to receive notice by electronic transmission
100 is not provided in accordance with sub-subparagraph (c)3.e.
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101 However, the association is not liable for an inadvertent
102 disclosure of the e-mail address or facsimile number for
103 receiving electronic transmission of notices.
104 8. All current insurance policies of the association and
105 condominiums operated by the association.
106 9. A current copy of any management agreement, lease, or
107 other contract to which the association is a party or under
108 which the association or the unit owners have an obligation or
109 responsibility.
110 10. Bills of sale or transfer for all property owned by
111 the association.
112 11. Accounting records for the association and separate
113 accounting records for each condominium that the association
114 operates. Any person who knowingly or intentionally defaces or
115 destroys such records, or who knowingly or intentionally fails
116 to create or maintain such records, with the intent of causing
117 harm to the association or one or more of its members, is
118 personally subject to a civil penalty pursuant to s.
119 718.501(1)(d). The accounting records must include, but are not
120 limited to:
121 a. Accurate, itemized, and detailed records of all
122 receipts and expenditures.
123 b. A current account and a monthly, bimonthly, or
124 quarterly statement of the account for each unit designating the
125 name of the unit owner, the due date and amount of each
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126 assessment, the amount paid on the account, and the balance due.
127 c. All audits, reviews, accounting statements, and
128 financial reports of the association or condominium.
129 d. All contracts for work to be performed. Bids for work
130 to be performed are also considered official records and must be
131 maintained by the association.
132 12. Ballots, sign-in sheets, voting proxies, and all other
133 papers and electronic records relating to voting by unit owners,
134 which must be maintained for 1 year from the date of the
135 election, vote, or meeting to which the document relates,
136 notwithstanding paragraph (b).
137 13. All rental records if the association is acting as
138 agent for the rental of condominium units.
139 14. A copy of the current question and answer sheet as
140 described in s. 718.504.
141 15. All other written records of the association not
142 specifically included in the foregoing which are related to the
143 operation of the association.
144 15.16. A copy of the inspection report as described in s.
145 718.301(4)(p).
146 16.17. Bids for materials, equipment, or services.
147 17. All affirmative acknowledgments made pursuant to s.
148 718.121(4)(c).
149 18. All other written records of the association not
150 specifically included in the foregoing which are related to the
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151 operation of the association.
152 (c)1. The official records of the association are open to
153 inspection by any association member or the authorized
154 representative of such member at all reasonable times. The right
155 to inspect the records includes the right to make or obtain
156 copies, at the reasonable expense, if any, of the member or
157 authorized representative of such member. A renter of a unit has
158 a right to inspect and copy the association's bylaws and rules.
159 The association may adopt reasonable rules regarding the
160 frequency, time, location, notice, and manner of record
161 inspections and copying. The failure of an association to
162 provide the records within 10 working days after receipt of a
163 written request creates a rebuttable presumption that the
164 association willfully failed to comply with this paragraph. A
165 unit owner who is denied access to official records is entitled
166 to the actual damages or minimum damages for the association's
167 willful failure to comply. Minimum damages are $50 per calendar
168 day for up to 10 days, beginning on the 11th working day after
169 receipt of the written request. The failure to permit inspection
170 entitles any person prevailing in an enforcement action to
171 recover reasonable attorney fees from the person in control of
172 the records who, directly or indirectly, knowingly denied access
173 to the records.
174 2. Any person who knowingly or intentionally defaces or
175 destroys accounting records that are required by this chapter to
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176 be maintained during the period for which such records are
177 required to be maintained, or who knowingly or intentionally
178 fails to create or maintain accounting records that are required
179 to be created or maintained, with the intent of causing harm to
180 the association or one or more of its members, is personally
181 subject to a civil penalty pursuant to s. 718.501(1)(d).
182 3. The association shall maintain an adequate number of
183 copies of the declaration, articles of incorporation, bylaws,
184 and rules, and all amendments to each of the foregoing, as well
185 as the question and answer sheet as described in s. 718.504 and
186 year-end financial information required under this section, on
187 the condominium property to ensure their availability to unit
188 owners and prospective purchasers, and may charge its actual
189 costs for preparing and furnishing these documents to those
190 requesting the documents. An association shall allow a member or
191 his or her authorized representative to use a portable device,
192 including a smartphone, tablet, portable scanner, or any other
193 technology capable of scanning or taking photographs, to make an
194 electronic copy of the official records in lieu of the
195 association's providing the member or his or her authorized
196 representative with a copy of such records. The association may
197 not charge a member or his or her authorized representative for
198 the use of a portable device. Notwithstanding this paragraph,
199 the following records are not accessible to unit owners:
200 a. Any record protected by the lawyer-client privilege as
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201 described in s. 90.502 and any record protected by the work-
202 product privilege, including a record prepared by an association
203 attorney or prepared at the attorney's express direction, which
204 reflects a mental impression, conclusion, litigation strategy,
205 or legal theory of the attorney or the association, and which
206 was prepared exclusively for civil or criminal litigation or for
207 adversarial administrative proceedings, or which was prepared in
208 anticipation of such litigation or proceedings until the
209 conclusion of the litigation or proceedings.
210 b. Information obtained by an association in connection
211 with the approval of the lease, sale, or other transfer of a
212 unit.
213 c. Personnel records of association or management company
214 employees, including, but not limited to, disciplinary, payroll,
215 health, and insurance records. For purposes of this sub-
216 subparagraph, the term "personnel records" does not include
217 written employment agreements with an association employee or
218 management company, or budgetary or financial records that
219 indicate the compensation paid to an association employee.
220 d. Medical records of unit owners.
221 e. Social security numbers, driver license numbers, credit
222 card numbers, e-mail addresses, telephone numbers, facsimile
223 numbers, emergency contact information, addresses of a unit
224 owner other than as provided to fulfill the association's notice
225 requirements, and other personal identifying information of any
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226 person, excluding the person's name, unit designation, mailing
227 address, property address, and any address, e-mail address, or
228 facsimile number provided to the association to fulfill the
229 association's notice requirements. Notwithstanding the
230 restrictions in this sub-subparagraph, an association may print
231 and distribute to parcel owners a directory containing the name,
232 parcel address, and all telephone numbers of each parcel owner.
233 However, an owner may exclude his or her telephone numbers from
234 the directory by so requesting in writing to the association. An
235 owner may consent in writing to the disclosure of other contact
236 information described in this sub-subparagraph. The association
237 is not liable for the inadvertent disclosure of information that
238 is protected under this sub-subparagraph if the information is
239 included in an official record of the association and is
240 voluntarily provided by an owner and not requested by the
241 association.
242 f. Electronic security measures that are used by the
243 association to safeguard data, including passwords.
244 g. The software and operating system used by the
245 association which allow the manipulation of data, even if the
246 owner owns a copy of the same software used by the association.
247 The data is part of the official records of the association.
248 h. All affirmative acknowledgments made pursuant to s.
249 718.121(4)(c).
250 Section 2. Paragraph (b) of subsection (6) of section
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251 718.116, Florida Statutes, is amended to read:
252 718.116 Assessments; liability; lien and priority;
253 interest; collection.—
254 (6)
255 (b) No foreclosure judgment may be entered until at least
256 45 30 days after the association gives written notice to the
257 unit owner of its intention to foreclose its lien to collect the
258 unpaid assessments. The notice must be in substantially the
259 following form:
260
261 DELINQUENT ASSESSMENT
262
263 This letter is to inform you a Claim of Lien has been
264 filed against your property because you have not paid
265 the ...(type of assessment)... assessment to ...(name
266 of association).... The association intends to
267 foreclose the lien and collect the unpaid amount
268 within 45 30 days of this letter being provided to
269 you.
270
271 You owe the interest accruing from ...(month/year)...
272 to the present. As of the date of this letter, the
273 total amount due with interest is $..... All costs of
274 any action and interest from this day forward will
275 also be charged to your account.
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276
277 Any questions concerning this matter should be
278 directed to ...(insert name, addresses, and telephone
279 numbers of association representative)....
280
281 If this notice is not given at least 45 30 days before the
282 foreclosure action is filed, and if the unpaid assessments,
283 including those coming due after the claim of lien is recorded,
284 are paid before the entry of a final judgment of foreclosure,
285 the association shall not recover attorney attorney's fees or
286 costs. The notice must be given by delivery of a copy of it to
287 the unit owner or by certified or registered mail, return
288 receipt requested, addressed to the unit owner at his or her
289 last known address; and, upon such mailing, the notice shall be
290 deemed to have been given, and the court shall proceed with the
291 foreclosure action and may award attorney attorney's fees and
292 costs as permitted by law. The notice requirements of this
293 subsection are satisfied if the unit owner records a notice of
294 contest of lien as provided in subsection (5). The notice
295 requirements of this subsection do not apply if an action to
296 foreclose a mortgage on the condominium unit is pending before
297 any court; if the rights of the association would be affected by
298 such foreclosure; and if actual, constructive, or substitute
299 service of process has been made on the unit owner.
300 Section 3. Subsection (4) of section 718.121, Florida
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301 Statutes, is amended, and subsections (5) and (6) are added to
302 that section, to read:
303 718.121 Liens.—
304 (4)(a) If an association sends an invoice for assessments
305 or a unit's statement of the account described in s.
306 718.111(12)(a)11.b., the invoice for assessments or the unit's
307 statement of account must be delivered to the unit owner by
308 first-class United States mail or by electronic transmission to
309 the unit owner's e-mail address maintained in the association's
310 official records.
311 (b) Before changing the method of delivery for an invoice
312 for assessments or the statement of the account, the association
313 must deliver a written notice of such change to each unit owner.
314 The written notice must be delivered to the unit owner at least
315 30 days before the association sends an invoice for assessments
316 or the statement of the account by the new delivery method. The
317 notice must be sent by first-class United States mail to the
318 unit owner at his or her last address as reflected in the
319 association's records and, if such address is not the unit
320 address, must be sent by first-class United States mail to the
321 unit address. Notice is deemed to have been delivered upon
322 mailing as required by this paragraph.
323 (c) A unit owner must affirmatively acknowledge his or her
324 understanding that the association will change its method of
325 delivery of an invoice for assessments or the unit's statement
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326 of the account before the association may change the method of
327 delivering an invoice for assessments or the statement of the
328 account. The unit owner may make the affirmative acknowledgment
329 electronically or in writing.
330 (5) An association may not require payment of attorney
331 fees related to a past due assessment without first delivering a
332 written notice of late assessment to the unit owner which
333 specifies the amount owed the association and provides the unit
334 owner an opportunity to pay the amount owed without the
335 assessment of attorney fees. The notice of late assessment must
336 be sent by first-class United States mail to the unit owner at
337 his or her last address as reflected in the association's
338 records and, if such address is not the unit address, must also
339 be sent by first-class United States mail to the unit address.
340 Notice is deemed to have been delivered upon mailing as required
341 by this subsection. A rebuttable presumption that an association
342 mailed a notice in accordance with this subsection is
343 established if a board member, officer, or agent of the
344 association, or a manager licensed under part VIII of chapter
345 468, provides a sworn affidavit attesting to such mailing. The
346 notice must be in substantially the following form:
347
348 NOTICE OF LATE ASSESSMENT
349
350 RE: Unit .... of ...(name of association)...
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351
352 The following amounts are currently due on your
353 account to ...(name of association)..., and must be
354 paid within 30 days of the date of this letter. This
355 letter shall serve as the association's notice of its
356 intent to proceed with further collection action
357 against your property no sooner than 30 days of the
358 date of this letter, unless you pay in full the
359 amounts set forth below:
360
361 Maintenance due ...(dates)... $.....
362 Late fee, if applicable $.....
363 Interest through ...(dates)...* $.....
364 TOTAL OUTSTANDING $.....
365
366 *Interest accrues at the rate of .... percent per annum.
367 (6) Except as otherwise provided in this chapter, no lien
368 may be filed by the association against a condominium unit until
369 45 30 days after the date on which a notice of intent to file a
370 lien has been delivered to the owner by registered or certified
371 mail, return receipt requested, and by first-class United States
372 mail to the owner at his or her last address as reflected in the
373 association's records and, if such address is not the unit
374 address, by first-class United States mail to the unit address
375 of the association, if the address is within the United States,
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376 and delivered to the owner at the address of the unit if the
377 owner's address as reflected in the records of the association
378 is not the unit address. If the address reflected in the records
379 is outside the United States, sending the notice to that address
380 and to the unit address by first-class United States mail is
381 sufficient. Delivery of the notice shall be deemed given upon
382 mailing as required by this subsection. The notice must be in
383 substantially the following form:
384
385 NOTICE OF INTENT
386 TO RECORD A CLAIM OF LIEN
387
388 RE: Unit .... of ...(name of association)...
389
390 The following amounts are currently due on your
391 account to ...(name of association)..., and must be
392 paid within 45 30 days after your receipt of this
393 letter. This letter shall serve as the association's
394 notice of intent to record a Claim of Lien against
395 your property no sooner than 45 30 days after your
396 receipt of this letter, unless you pay in full the
397 amounts set forth below:
398
399 Maintenance due ...(dates)... $.....
400 Late fee, if applicable $.....
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401 Interest through ...(dates)...* $.....
402 Certified mail charges $.....
403 Other costs $.....
404 TOTAL OUTSTANDING $.....
405
406 *Interest accrues at the rate of .... percent per
407 annum.
408 Section 4. Paragraphs (a) and (c) of subsection (2) of
409 section 719.104, Florida Statutes, are amended to read:
410 719.104 Cooperatives; access to units; records; financial
411 reports; assessments; purchase of leases.—
412 (2) OFFICIAL RECORDS.—
413 (a) From the inception of the association, the association
414 shall maintain a copy of each of the following, where
415 applicable, which shall constitute the official records of the
416 association:
417 1. The plans, permits, warranties, and other items
418 provided by the developer pursuant to s. 719.301(4).
419 2. A photocopy of the cooperative documents.
420 3. A copy of the current rules of the association.
421 4. A book or books containing the minutes of all meetings
422 of the association, of the board of directors, and of the unit
423 owners.
424 5. A current roster of all unit owners and their mailing
425 addresses, unit identifications, voting certifications, and, if
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426 known, telephone numbers. The association shall also maintain
427 the e-mail addresses and the numbers designated by unit owners
428 for receiving notice sent by electronic transmission of those
429 unit owners consenting to receive notice by electronic
430 transmission. The e-mail addresses and numbers provided by unit
431 owners to receive notice by electronic transmission shall be
432 removed from association records when consent to receive notice
433 by electronic transmission is revoked. However, the association
434 is not liable for an erroneous disclosure of the e-mail address
435 or the number for receiving electronic transmission of notices.
436 6. All current insurance policies of the association.
437 7. A current copy of any management agreement, lease, or
438 other contract to which the association is a party or under
439 which the association or the unit owners have an obligation or
440 responsibility.
441 8. Bills of sale or transfer for all property owned by the
442 association.
443 9. Accounting records for the association and separate
444 accounting records for each unit it operates, according to good
445 accounting practices. The accounting records shall include, but
446 not be limited to:
447 a. Accurate, itemized, and detailed records of all
448 receipts and expenditures.
449 b. A current account and a monthly, bimonthly, or
450 quarterly statement of the account for each unit designating the
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451 name of the unit owner, the due date and amount of each
452 assessment, the amount paid upon the account, and the balance
453 due.
454 c. All audits, reviews, accounting statements, and
455 financial reports of the association.
456 d. All contracts for work to be performed. Bids for work
457 to be performed shall also be considered official records and
458 shall be maintained for a period of 1 year.
459 10. Ballots, sign-in sheets, voting proxies, and all other
460 papers and electronic records relating to voting by unit owners,
461 which shall be maintained for a period of 1 year after the date
462 of the election, vote, or meeting to which the document relates.
463 11. All rental records where the association is acting as
464 agent for the rental of units.
465 12. A copy of the current question and answer sheet as
466 described in s. 719.504.
467 13. All affirmative acknowledgments made pursuant to s.
468 719.108(3)(b)3.
469 14. All other written records of the association not
470 specifically included in the foregoing which are related to the
471 operation of the association.
472 (c) The official records of the association are open to
473 inspection by any association member or the authorized
474 representative of such member at all reasonable times. The right
475 to inspect the records includes the right to make or obtain
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476 copies, at the reasonable expense, if any, of the association
477 member. The association may adopt reasonable rules regarding the
478 frequency, time, location, notice, and manner of record
479 inspections and copying. The failure of an association to
480 provide the records within 10 working days after receipt of a
481 written request creates a rebuttable presumption that the
482 association willfully failed to comply with this paragraph. A
483 unit owner who is denied access to official records is entitled
484 to the actual damages or minimum damages for the association's
485 willful failure to comply. The minimum damages are $50 per
486 calendar day for up to 10 days, beginning on the 11th working
487 day after receipt of the written request. The failure to permit
488 inspection entitles any person prevailing in an enforcement
489 action to recover reasonable attorney fees from the person in
490 control of the records who, directly or indirectly, knowingly
491 denied access to the records. Any person who knowingly or
492 intentionally defaces or destroys accounting records that are
493 required by this chapter to be maintained during the period for
494 which such records are required to be maintained, or who
495 knowingly or intentionally fails to create or maintain
496 accounting records that are required to be created or
497 maintained, with the intent of causing harm to the association
498 or one or more of its members, is personally subject to a civil
499 penalty pursuant to s. 719.501(1)(d). The association shall
500 maintain an adequate number of copies of the declaration,
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501 articles of incorporation, bylaws, and rules, and all amendments
502 to each of the foregoing, as well as the question and answer
503 sheet as described in s. 719.504 and year-end financial
504 information required by the department, on the cooperative
505 property to ensure their availability to unit owners and
506 prospective purchasers, and may charge its actual costs for
507 preparing and furnishing these documents to those requesting the
508 same. An association shall allow a member or his or her
509 authorized representative to use a portable device, including a
510 smartphone, tablet, portable scanner, or any other technology
511 capable of scanning or taking photographs, to make an electronic
512 copy of the official records in lieu of the association
513 providing the member or his or her authorized representative
514 with a copy of such records. The association may not charge a
515 member or his or her authorized representative for the use of a
516 portable device. Notwithstanding this paragraph, the following
517 records shall not be accessible to unit owners:
518 1. Any record protected by the lawyer-client privilege as
519 described in s. 90.502 and any record protected by the work-
520 product privilege, including any record prepared by an
521 association attorney or prepared at the attorney's express
522 direction which reflects a mental impression, conclusion,
523 litigation strategy, or legal theory of the attorney or the
524 association, and which was prepared exclusively for civil or
525 criminal litigation or for adversarial administrative
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526 proceedings, or which was prepared in anticipation of such
527 litigation or proceedings until the conclusion of the litigation
528 or proceedings.
529 2. Information obtained by an association in connection
530 with the approval of the lease, sale, or other transfer of a
531 unit.
532 3. Personnel records of association or management company
533 employees, including, but not limited to, disciplinary, payroll,
534 health, and insurance records. For purposes of this
535 subparagraph, the term "personnel records" does not include
536 written employment agreements with an association employee or
537 management company, or budgetary or financial records that
538 indicate the compensation paid to an association employee.
539 4. Medical records of unit owners.
540 5. Social security numbers, driver license numbers, credit
541 card numbers, e-mail addresses, telephone numbers, facsimile
542 numbers, emergency contact information, addresses of a unit
543 owner other than as provided to fulfill the association's notice
544 requirements, and other personal identifying information of any
545 person, excluding the person's name, unit designation, mailing
546 address, property address, and any address, e-mail address, or
547 facsimile number provided to the association to fulfill the
548 association's notice requirements. Notwithstanding the
549 restrictions in this subparagraph, an association may print and
550 distribute to unit parcel owners a directory containing the
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551 name, unit parcel address, and all telephone numbers of each
552 unit parcel owner. However, an owner may exclude his or her
553 telephone numbers from the directory by so requesting in writing
554 to the association. An owner may consent in writing to the
555 disclosure of other contact information described in this
556 subparagraph. The association is not liable for the inadvertent
557 disclosure of information that is protected under this
558 subparagraph if the information is included in an official
559 record of the association and is voluntarily provided by an
560 owner and not requested by the association.
561 6. Electronic security measures that are used by the
562 association to safeguard data, including passwords.
563 7. The software and operating system used by the
564 association which allow the manipulation of data, even if the
565 owner owns a copy of the same software used by the association.
566 The data is part of the official records of the association.
567 8. All affirmative acknowledgments made pursuant to s.
568 719.108(3)(b)3.
569 Section 5. Subsections (3) and (4) of section 719.108,
570 Florida Statutes, are amended to read:
571 719.108 Rents and assessments; liability; lien and
572 priority; interest; collection; cooperative ownership.—
573 (3)(a) Rents and assessments, and installments on them,
574 not paid when due bear interest at the rate provided in the
575 cooperative documents from the date due until paid. This rate
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576 may not exceed the rate allowed by law and, if a rate is not
577 provided in the cooperative documents, accrues at 18 percent per
578 annum. If the cooperative documents or bylaws so provide, the
579 association may charge an administrative late fee in addition to
580 such interest, not to exceed the greater of $25 or 5 percent of
581 each installment of the assessment for each delinquent
582 installment that the payment is late. Any payment received by an
583 association must be applied first to any interest accrued by the
584 association, then to any administrative late fee, then to any
585 costs and reasonable attorney fees incurred in collection, and
586 then to the delinquent assessment. The foregoing applies
587 notwithstanding s. 673.3111, any purported accord and
588 satisfaction, or any restrictive endorsement, designation, or
589 instruction placed on or accompanying a payment. The preceding
590 sentence is intended to clarify existing law. A late fee is not
591 subject to chapter 687 or s. 719.303(4).
592 (b)1. If an association sends an invoice for assessments
593 or a unit's statement of the account described in s.
594 719.104(2)(a)9.b., the invoice for assessments or the unit's
595 statement of account must be delivered to the unit owner by
596 first-class United States mail or by electronic transmission to
597 the unit owner's e-mail address maintained in the association's
598 official records.
599 2. Before changing the method of delivery for an invoice
600 for assessments or the statement of the account, the association
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601 must deliver a written notice of such change to each unit owner.
602 The written notice must be delivered to the unit owner at least
603 30 days before the association sends the invoice for assessments
604 or statement of the account by the new delivery method. The
605 notice must be sent by first-class United States mail to the
606 unit owner at his or her last address as reflected in the
607 association's records and, if such address is not the unit
608 address, must be sent by first-class United States mail to the
609 unit address. Notice is deemed to have been delivered upon
610 mailing as required by this subparagraph.
611 3. A unit owner must affirmatively acknowledge his or her
612 understanding that the association will change its method of
613 delivery of an invoice for assessments or the statement of the
614 account before the association may change the method of
615 delivering an invoice for assessments or the statement of the
616 account. The unit owner may make the affirmative acknowledgment
617 electronically or in writing.
618 (c) An association may not require payment of attorney
619 fees related to a past due assessment without first delivering a
620 written notice of late assessment to the owner which specifies
621 the amount owed the association and provides the unit owner an
622 opportunity to pay the amount owed without the assessment of
623 attorney fees. The notice of late assessment must be sent by
624 first-class United States mail to the unit owner at his or her
625 last address as reflected in the association's records and, if
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626 such address is not the unit address, must also be sent by
627 first-class United States mail to the unit address. Notice is
628 deemed to have been delivered upon mailing as required by this
629 paragraph. A rebuttable presumption that an association mailed a
630 notice in accordance with this paragraph is established if a
631 board member, officer, or agent of the association, or a manager
632 licensed under part VIII of chapter 468, provides a sworn
633 affidavit attesting to such mailing. The notice must be in
634 substantially the following form:
635
636 NOTICE OF LATE ASSESSMENT
637
638 RE: Unit .... of ...(name of association)...
639
640 The following amounts are currently due on your
641 account to ...(name of association)..., and must be
642 paid within 30 days of the date of this letter. This
643 letter shall serve as the association's notice to
644 proceed with further collection action against your
645 property no sooner than 30 days of the date of this
646 letter, unless you pay in full the amounts set forth
647 below:
648
649 Maintenance due ...(dates)... $.....
650 Late fee, if applicable $.....
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651 Interest through ...(dates)...* $.....
652 TOTAL OUTSTANDING $.....
653
654 *Interest accrues at the rate of .... percent per annum.
655 (4) The association has a lien on each cooperative parcel
656 for any unpaid rents and assessments, plus interest, and any
657 administrative late fees. If authorized by the cooperative
658 documents, the lien also secures reasonable attorney fees
659 incurred by the association incident to the collection of the
660 rents and assessments or enforcement of such lien. The lien is
661 effective from and after recording a claim of lien in the public
662 records in the county in which the cooperative parcel is located
663 which states the description of the cooperative parcel, the name
664 of the unit owner, the amount due, and the due dates. Except as
665 otherwise provided in this chapter, a lien may not be filed by
666 the association against a cooperative parcel until 45 30 days
667 after the date on which a notice of intent to file a lien has
668 been delivered to the owner.
669 (a) The notice must be sent to the unit owner at the
670 address of the unit by first-class United States mail, and the
671 notice must be in substantially the following form:
672
673 NOTICE OF INTENT
674 TO RECORD A CLAIM OF LIEN
675
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676 RE: Unit ...(unit number)... of ...(name of
677 cooperative)...
678
679 The following amounts are currently due on your
680 account to ...(name of association)..., and must be
681 paid within 45 30 days after your receipt of this
682 letter. This letter shall serve as the association's
683 notice of intent to record a Claim of Lien against
684 your property no sooner than 45 30 days after your
685 receipt of this letter, unless you pay in full the
686 amounts set forth below:
687
688 Maintenance due ...(dates)... $.....
689 Late fee, if applicable $.....
690 Interest through ...(dates)...* $.....
691 Certified mail charges $.....
692 Other costs $.....
693 TOTAL OUTSTANDING $.....
694
695 *Interest accrues at the rate of .... percent per
696 annum.
697 1. If the most recent address of the unit owner on the
698 records of the association is the address of the unit, the
699 notice must be sent by certified mail, return receipt requested,
700 to the unit owner at the address of the unit.
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701 2. If the most recent address of the unit owner on the
702 records of the association is in the United States, but is not
703 the address of the unit, the notice must be sent by certified
704 mail, return receipt requested, to the unit owner at his or her
705 most recent address.
706 3. If the most recent address of the unit owner on the
707 records of the association is not in the United States, the
708 notice must be sent by first-class United States mail to the
709 unit owner at his or her most recent address.
710 (b) A notice that is sent pursuant to this subsection is
711 deemed delivered upon mailing. A claim of lien must be executed
712 and acknowledged by an officer or authorized agent of the
713 association. The lien is not effective 1 year after the claim of
714 lien was recorded unless, within that time, an action to enforce
715 the lien is commenced. The 1-year period is automatically
716 extended for any length of time during which the association is
717 prevented from filing a foreclosure action by an automatic stay
718 resulting from a bankruptcy petition filed by the parcel owner
719 or any other person claiming an interest in the parcel. The
720 claim of lien secures all unpaid rents and assessments that are
721 due and that may accrue after the claim of lien is recorded and
722 through the entry of a final judgment, as well as interest and
723 all reasonable costs and attorney fees incurred by the
724 association incident to the collection process. Upon payment in
725 full, the person making the payment is entitled to a
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726 satisfaction of the lien.
727 (c) By recording a notice in substantially the following
728 form, a unit owner or the unit owner's agent or attorney may
729 require the association to enforce a recorded claim of lien
730 against his or her cooperative parcel:
731
732 NOTICE OF CONTEST OF LIEN
733
734 TO: ...(Name and address of association)...:
735
736 You are notified that the undersigned contests the
737 claim of lien filed by you on ...., ...(year)..., and
738 recorded in Official Records Book .... at Page ....,
739 of the public records of .... County, Florida, and
740 that the time within which you may file suit to
741 enforce your lien is limited to 90 days from the date
742 of service of this notice. Executed this .... day of
743 ...., ...(year)....
744 Signed: ...(Owner or Attorney)...
745
746 After notice of contest of lien has been recorded, the clerk of
747 the circuit court shall mail a copy of the recorded notice to
748 the association by certified mail, return receipt requested, at
749 the address shown in the claim of lien or most recent amendment
750 to it and shall certify to the service on the face of the
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751 notice. Service is complete upon mailing. After service, the
752 association has 90 days in which to file an action to enforce
753 the lien. If the action is not filed within the 90-day period,
754 the lien is void. However, the 90-day period shall be extended
755 for any length of time during which the association is prevented
756 from filing its action because of an automatic stay resulting
757 from the filing of a bankruptcy petition by the unit owner or by
758 any other person claiming an interest in the parcel.
759 (d) A release of lien must be in substantially the
760 following form:
761
762 RELEASE OF LIEN
763
764 The undersigned lienor, in consideration of the final payment in
765 the amount of $...., hereby waives and releases its lien and
766 right to claim a lien for unpaid assessments through ....,
767 ...(year)..., recorded in the Official Records Book .... at Page
768 ...., of the public records of .... County, Florida, for the
769 following described real property:
770
771 THAT COOPERATIVE PARCEL WHICH INCLUDES UNIT NO. ....
772 OF ...(NAME OF COOPERATIVE)..., A COOPERATIVE AS SET
773 FORTH IN THE COOPERATIVE DOCUMENTS AND THE EXHIBITS
774 ANNEXED THERETO AND FORMING A PART THEREOF, RECORDED
775 IN OFFICIAL RECORDS BOOK ...., PAGE ...., OF THE
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776 PUBLIC RECORDS OF .... COUNTY, FLORIDA.
777
778 ...(Signature of Authorized Agent)... ...(Signature of
779 Witness)...
780 ...(Print Name)... ...(Print Name)...
781
782 ...(Signature of Witness)...
783 ...(Print Name)...
784
785 Sworn to (or affirmed) and subscribed before me this .... day of
786 ...., ...(year)..., by ...(name of person making statement)....
787 ...(Signature of Notary Public)...
788 ...(Print, type, or stamp commissioned name of Notary Public)...
789 Personally Known .... OR Produced .... as identification.
790 Section 6. Present paragraph (l) of subsection (4) of
791 section 720.303, Florida Statutes, is redesignated as paragraph
792 (m), a new paragraph (l) is added to that subsection, and
793 paragraph (c) of subsection (5) of that section is amended, to
794 read:
795 720.303 Association powers and duties; meetings of board;
796 official records; budgets; financial reporting; association
797 funds; recalls.—
798 (4) OFFICIAL RECORDS.—The association shall maintain each
799 of the following items, when applicable, which constitute the
800 official records of the association:
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801 (l) All affirmative acknowledgments made pursuant to s.
802 720.3085(3)(c)3.
803 (5) INSPECTION AND COPYING OF RECORDS.—The official
804 records shall be maintained within the state for at least 7
805 years and shall be made available to a parcel owner for
806 inspection or photocopying within 45 miles of the community or
807 within the county in which the association is located within 10
808 business days after receipt by the board or its designee of a
809 written request. This subsection may be complied with by having
810 a copy of the official records available for inspection or
811 copying in the community or, at the option of the association,
812 by making the records available to a parcel owner electronically
813 via the Internet or by allowing the records to be viewed in
814 electronic format on a computer screen and printed upon request.
815 If the association has a photocopy machine available where the
816 records are maintained, it must provide parcel owners with
817 copies on request during the inspection if the entire request is
818 limited to no more than 25 pages. An association shall allow a
819 member or his or her authorized representative to use a portable
820 device, including a smartphone, tablet, portable scanner, or any
821 other technology capable of scanning or taking photographs, to
822 make an electronic copy of the official records in lieu of the
823 association's providing the member or his or her authorized
824 representative with a copy of such records. The association may
825 not charge a fee to a member or his or her authorized
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826 representative for the use of a portable device.
827 (c) The association may adopt reasonable written rules
828 governing the frequency, time, location, notice, records to be
829 inspected, and manner of inspections, but may not require a
830 parcel owner to demonstrate any proper purpose for the
831 inspection, state any reason for the inspection, or limit a
832 parcel owner's right to inspect records to less than one 8-hour
833 business day per month. The association may impose fees to cover
834 the costs of providing copies of the official records, including
835 the costs of copying and the costs required for personnel to
836 retrieve and copy the records if the time spent retrieving and
837 copying the records exceeds one-half hour and if the personnel
838 costs do not exceed $20 per hour. Personnel costs may not be
839 charged for records requests that result in the copying of 25 or
840 fewer pages. The association may charge up to 25 cents per page
841 for copies made on the association's photocopier. If the
842 association does not have a photocopy machine available where
843 the records are kept, or if the records requested to be copied
844 exceed 25 pages in length, the association may have copies made
845 by an outside duplicating service and may charge the actual cost
846 of copying, as supported by the vendor invoice. The association
847 shall maintain an adequate number of copies of the recorded
848 governing documents, to ensure their availability to members and
849 prospective members. Notwithstanding this paragraph, the
850 following records are not accessible to members or parcel
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851 owners:
852 1. Any record protected by the lawyer-client privilege as
853 described in s. 90.502 and any record protected by the work-
854 product privilege, including, but not limited to, a record
855 prepared by an association attorney or prepared at the
856 attorney's express direction which reflects a mental impression,
857 conclusion, litigation strategy, or legal theory of the attorney
858 or the association and which was prepared exclusively for civil
859 or criminal litigation or for adversarial administrative
860 proceedings or which was prepared in anticipation of such
861 litigation or proceedings until the conclusion of the litigation
862 or proceedings.
863 2. Information obtained by an association in connection
864 with the approval of the lease, sale, or other transfer of a
865 parcel.
866 3. Personnel records of association or management company
867 employees, including, but not limited to, disciplinary, payroll,
868 health, and insurance records. For purposes of this
869 subparagraph, the term "personnel records" does not include
870 written employment agreements with an association or management
871 company employee or budgetary or financial records that indicate
872 the compensation paid to an association or management company
873 employee.
874 4. Medical records of parcel owners or community
875 residents.
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876 5. Social security numbers, driver license numbers, credit
877 card numbers, electronic mailing addresses, telephone numbers,
878 facsimile numbers, emergency contact information, any addresses
879 for a parcel owner other than as provided for association notice
880 requirements, and other personal identifying information of any
881 person, excluding the person's name, parcel designation, mailing
882 address, and property address. Notwithstanding the restrictions
883 in this subparagraph, an association may print and distribute to
884 parcel owners a directory containing the name, parcel address,
885 and all telephone numbers of each parcel owner. However, an
886 owner may exclude his or her telephone numbers from the
887 directory by so requesting in writing to the association. An
888 owner may consent in writing to the disclosure of other contact
889 information described in this subparagraph. The association is
890 not liable for the disclosure of information that is protected
891 under this subparagraph if the information is included in an
892 official record of the association and is voluntarily provided
893 by an owner and not requested by the association.
894 6. Any electronic security measure that is used by the
895 association to safeguard data, including passwords.
896 7. The software and operating system used by the
897 association which allows the manipulation of data, even if the
898 owner owns a copy of the same software used by the association.
899 The data is part of the official records of the association.
900 8. All affirmative acknowledgments made pursuant to s.
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CS/HB 615 2021
901 720.3085(3)(c)3.
902 Section 7. Paragraphs (c) and (d) are added to subsection
903 (3) of section 720.3085, Florida Statutes, to read:
904 720.3085 Payment for assessments; lien claims.—
905 (3) Assessments and installments on assessments that are
906 not paid when due bear interest from the due date until paid at
907 the rate provided in the declaration of covenants or the bylaws
908 of the association, which rate may not exceed the rate allowed
909 by law. If no rate is provided in the declaration or bylaws,
910 interest accrues at the rate of 18 percent per year.
911 (c)1. If an association sends an invoice for assessments
912 or a parcel's statement of the account described in s.
913 720.303(4)(j)2., the invoice for assessments or the parcel's
914 statement of account must be delivered to the parcel owner by
915 first-class United States mail or by electronic transmission to
916 the parcel owner's e-mail address maintained in the
917 association's official records.
918 2. Before changing the method of delivery for an invoice
919 for assessments or the statement of the account, the association
920 must deliver a written notice such change to each parcel owner.
921 The written notice must be delivered to the parcel owner at
922 least 30 days before the association sends an invoice for
923 assessments or the statement of the account by the new delivery
924 method. The notice must be sent by first-class United States
925 mail to the owner at his or her last address as reflected in the
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926 association's records and, if such address is not the parcel
927 address, must be sent by first-class United States mail to the
928 parcel address. Notice is deemed to have been delivered upon
929 mailing as required by this subparagraph.
930 3. A parcel owner must affirmatively acknowledge his or
931 her understanding that the association will change its method of
932 delivery of an invoice for assessments or the statement of the
933 account before the association may change the method of
934 delivering an invoice for assessments or the statement of the
935 account. The parcel owner may make the affirmative
936 acknowledgment electronically or in writing.
937 (d) An association may not require payment of attorney
938 fees related to a past due assessment without first delivering a
939 written notice of late assessment to the parcel owner which
940 specifies the amount owed the association and provides the
941 parcel owner an opportunity to pay the amount owed without the
942 assessment of attorney fees. The notice of late assessment must
943 be sent by first-class United States mail to the owner at his or
944 her last address as reflected in the association's records and,
945 if such address is not the parcel address, must also be sent by
946 first-class United States mail to the parcel address. Notice is
947 deemed to have been delivered upon mailing as required by this
948 paragraph. A rebuttable presumption that an association mailed a
949 notice in accordance with this paragraph is established if a
950 board member, officer, or agent of the association, or a manager
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951 licensed under part VIII of chapter 468, provides a sworn
952 affidavit attesting to such mailing. The notice must be in
953 substantially the following form:
954
955 NOTICE OF LATE ASSESSMENT
956
957 RE: Parcel .... of ...(name of association)...
958
959 The following amounts are currently due on your
960 account to ...(name of association)..., and must be
961 paid within 30 days after the date of this letter.
962 This letter shall serve as the association's notice to
963 proceed with further collection action against your
964 property no sooner than 30 days after the date of this
965 letter, unless you pay in full the amounts set forth
966 below:
967
968 Maintenance due ...(dates)... $.....
969 Late fee, if applicable $.....
970 Interest through ...(dates)...* $.....
971 TOTAL OUTSTANDING $.....
972
973 *Interest accrues at the rate of .... percent per annum.
974 Section 8. This act shall take effect July 1, 2021.
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CS/HB 1051
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1051 Environmental Compliance Costs
SPONSOR(S): Tourism, Infrastructure & Energy Subcommittee, Fernandez-Barquin and others
TIED BILLS: IDEN./SIM. BILLS: CS/SB 964
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Tourism, Infrastructure & Energy Subcommittee 15 Y, 0 N, As CS Johnson Keating
2) Environment, Agriculture & Flooding 17 Y, 0 N Gawin Moore
Subcommittee
3) Commerce Committee Johnson Hamon
SUMMARY ANALYSIS
Under current law, investor-owned electric utilities may recover certain costs, such as fuel-related expenses
and environmental compliance costs, outside of base rates through separate cost recovery charges approved
by the Public Service Commission (PSC). Environmental compliance costs are recovered through a statutorily
created mechanism known as the Environmental Cost Recovery Clause (ECRC), which provides cash flow for
the specific operations and maintenance activities and large equipment modifications necessary to comply with
environmental laws and regulations.
The bill expands the definition of “environmental compliance costs” for purposes of the ECRC to include costs
or expenses prudently incurred by an electric utility after July 1, 2021, pursuant to an agreement between the
electric utility and a governmental wastewater utility for the exclusive purpose of the electric utility constructing
and operating a wastewater reuse system where operation of the system will serve to further compliance with
environmental laws or regulations applicable to the electric utility and where the system fully or partially
satisfies a local government’s statutory reclaimed water reuse requirements. The bill also requires at least 50
percent of the reclaimed water the reuse system produces to be used in conjunction with the water
requirements of an electrical generating facility or facilities owned by the electric utility to offset all or part of the
electric utility’s water use authorized by permit.
The bill does not appear to have a fiscal impact on state or local governments, but may result in changes to
electric rates paid by private and public entities. See Fiscal Analysis for details.
The bill has an effective date of July 1, 2021.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h1051e.COM
DATE: 4/2/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Ratemaking for Investor-Owned Electric Utilities
The Public Service Commission (PSC) has broad jurisdiction over the rates and service of investor-
owned electric utilities (IOUs) in Florida.1 Under this broad grant of authority, and through more specific
grants of authority in ch. 366, F.S., the PSC sets rates for each IOU through five primary components,
each of which is established in a separate administrative proceeding:
Base rates
o Designed to recover most operations and maintenance expenses, capital investments,
and a return on capital investment.
Fuel and purchased power cost recovery charges
o Designed to recover the costs of fuel and the energy component of wholesale power
purchases.
o By PSC order, may include recovery of capital investments, including a return on
investment, in limited circumstances.
Capacity cost recovery charges
o Designed to recover costs of the capacity component of wholesale power purchases.
o By statute, may include recovery of certain costs related to development of new nuclear
power plants, including a return, provided that the costs will be moved into base rates
when the new plant becomes operational.2
Environmental cost recovery charges
o Designed to recover costs to comply with government-mandated environmental
standards.
o By statute, may include recovery of certain capital investments, including a return on
investment, provided that these costs may be moved into base rates at the IOU’s next
rate case.3
Energy conservation and efficiency cost recovery charges
o Designed to recover costs of implementing PSC-approved energy conservation and
efficiency programs.
In each base rate proceeding, the PSC sets a reasonable rate of return on equity for the IOU. After
rates are set, the actual rate of return on equity earned by an IOU fluctuates over time as utility
revenues and expenses fluctuate.
Environmental Cost Recovery Charges
Separate from base rates, environmental cost recovery charges are set annually, and revenue
collected through the Environmental Cost Recovery Clause (ECRC) provides cash flow for the specific
operations and maintenance activities and large equipment modifications necessary to comply with
environmental laws and regulations.4
The ECRC was established by the Legislature in 1993. To implement this law, the PSC established
three criteria for approval of recovery through the ECRC:
The electric utility’s costs were prudently incurred after April 13, 1993.
1
See, e.g., ss. 366.01, 366.04(1), 366.041, 366.05(1), and 366.06, F.S. There are five public electric utilities in Florida: Florida Power
& Light Company, Duke Energy Florida, Tampa Electric Company, Gulf Power Company, and Florida Public Utilities Company.
Florida Power & Light Company and Gulf Power Company operate under the same parent company, NextEra Energy, Inc.
2
S. 366.93, F.S.
3
S. 366.8255, F.S.
4
Public Service Commission, Agency Analysis of 2021 House Bill 1051 p. 1 (Mar. 3, 2021).
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The activity is legally required to comply with a governmentally imposed environmental
regulation that was enacted, that became effective, or whose effect was triggered after the
electric utility’s last test year upon which rates are based.
The electric utility’s costs are not recovered through some other cost recovery mechanism or
through base rates.5
Environmental compliance costs are defined in Florida law as all costs or expenses incurred by an
electric utility in complying with environmental laws or regulations.6 Environmental compliance costs
include, but are not limited to:
Inservice capital investments, including the electric utility's last authorized rate of return on
equity;
Operation and maintenance expenses;
Fuel procurement costs;
Purchased power costs;
Emission allowance costs;
Direct taxes on environmental equipment;
Costs or expenses prudently incurred by an electric utility pursuant to an agreement entered
into between the electric utility and the Department of Environmental Protection (DEP) or the
United States Environmental Protection Agency (EPA) for the exclusive purpose of ensuring
compliance with ozone ambient air quality standards by an electrical generating facility owned
by the electric utility; and
Costs or expenses prudently incurred for scientific research and geological assessments of
carbon capture and storage conducted in the state for the purpose of reducing an electric
utility’s greenhouse gas emissions when such costs or expenses are incurred in joint research
projects with Florida state government agencies and universities.7
Reuse of Reclaimed Water
Water conservation and the promotion of reuse of reclaimed water have been established by the
Legislature as formal state objectives.8 Reuse is defined as the deliberate application of reclaimed
water for a beneficial purpose.9 Reclaimed water is defined as water from a domestic wastewater10
treatment facility that has received at least secondary treatment11 and basic disinfection12 for reuse.13
Reclaimed water is reused for various purposes, such as irrigation, industrial uses, groundwater
recharge, and prevention of saltwater intrusion in coastal groundwater aquifers.14 Industrial uses of
reclaimed water include plant wash-down, and processing and cooling water purposes.15 Several
power plants throughout the state use reclaimed water for cooling purposes.16
5
See PSC Order No. PSC-94-0044-FOF-EI, issued January 12, 1994, in Docket No. 930613-EI, In re: Petition to establish an
environmental cost recovery clause pursuant to Section 366.0825, Florida Statutes by Gulf Power Company. Section 120.80(13), F.S.,
exempts cost recovery clause proceedings from rulemaking requirements.
6
S. 366.8255(1)(d), F.S. Environmental laws or regulations are defined as “all federal, state, or local statutes, administrative
regulations, orders, ordinances, resolutions, or other requirements that apply to electric utilities and are designed to protect the
environment.”
7
S. 366.8255(1)(d), F.S.
8
Ss. 403.064(1) and 373.250(1), F.S.
9
R. 62-610.200(52), F.A.C.
10
Section 367.021(5), F.S., defines the term “domestic wastewater” to mean wastewater principally from dwellings, business
buildings, institutions, and sanitary wastewater or sewage treatment plants.
11
Rule 62-610.200(54), F.A.C. defines the term “secondary treatment” to mean “wastewater treatment to a level that will achieve the
effluent limitations specified in paragraph 62-600.420(1)(a), F.A.C.”
12
Rule 62-600.440(5), F.A.C., provides the requirements for basic disinfection.
13
Section 373.019(17), F.S.; R. 62-610.200(48), F.A.C.
14
Martinez, Christopher J. and Clark, Mark W., Reclaimed Water and Florida’s Water Reuse Program, UF/IFAS Agricultural and
Biological Engineering Department (rev. 07/2012), available at
https://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.590.5063&rep=rep1&type=pdf.
15
Department of Environmental Protection (DEP), Uses of Reclaimed Water, https://floridadep.gov/water/domestic-
wastewater/content/uses-reclaimed-water (last visited Mar. 5, 2021).
16
DEP, Industrial Uses of Reclaimed Water, https://floridadep.gov/water/domestic-wastewater/content/industrial-uses-reclaimed-
water (last visited Mar. 5, 2021).
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Local governments are authorized and encouraged under Florida law to implement programs for the
reuse of reclaimed water and are authorized to allocate the costs of such programs in a reasonable
manner.17
Ocean Outfalls
An ocean outfall occurs when a wastewater treatment facility or other facility discharges treated effluent
into coastal or ocean waters.18 State law prohibits construction of new ocean outfalls and requires that
all six ocean outfalls in Florida cease discharging wastewater by December 31, 2025.19 In addition,
wastewater facilities that discharged wastewater through an ocean outfall on July 1, 2008, are required
to install a reuse system no later than December 31, 2025.20 Existing discharges through ocean outfalls
were required to meet advanced wastewater treatment requirements21 by December 31, 2018.22
Effect of the Bill
The bill amends s. 366.8255(1)(d), F.S., by expanding the definition of environmental compliance costs
to include the costs or expenses prudently incurred by an electric utility, after July 1, 2021, pursuant to
an agreement between the electric utility and a governmental wastewater utility for the exclusive
purpose of the electric utility constructing and operating a wastewater reuse system where operation of
the system will serve to further compliance with environmental laws or regulations that apply to the
electric utility and where operation of the system will serve to fully or partially satisfy a local
government’s reclaimed water reuse requirements under s. 403.064, F.S.,23 or s. 403.086, F.S.24 The
bill further requires that at least 50 percent of the produced reclaimed water is used in conjunction with
the water requirements of one or more of the utility’s electrical generating facilities in order to offset all
or part of the electric utility’s water use authorized by permit.
Under the bill, an electric utility that constructs a new wastewater reuse system that satisfies the
expanded definition of environmental compliance costs may begin to seek recovery of all its prudently
incurred costs and expenses through the ECRC. The electric utility’s level of cost recovery through the
ECRC may include depreciation of the capital investments in the wastewater reuse system, the
associated direct operating and maintenance expenses, and associated indirect expenses such as
taxes and a return on its capital investments.
B. SECTION DIRECTORY:
Section 1 Amends s. 366.8255, F.S., relating to environmental cost recovery.
Section 2 Provides an effective date of July 1, 2021.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
17
Section 403.064(9)-(10), F.S.
18
DEP, Ocean Outfall Study Final Report ES-1 (Apr. 18, 2006), available at
https://floridadep.gov/sites/default/files/OceanOutfallStudy_0.pdf.
19
S. 403.086(10), F.S.; Ch. 2008-232, Laws of Fla.
20
S. 403.086(10)(c), F.S.
21
S. 403.086(4), F.S.
22
S. 403.086(10)(b), F.S.
23
Section 403.064, F.S., relates to the use of reclaimed water.
24
Section 403.086, F.S., relates to sewage disposal facilities.
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None. Any increased workload associated with the PSC’s review of the ECRC petition is expected
to be handled within existing PSC resources.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
The bill may result in higher electric rates for local governments if an electric utility’s costs increase
due to agreements with wastewater utilities for wastewater reuse systems.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may result in higher electric rates if an electric utility’s costs increase due to agreements with
wastewater utilities for wastewater reuse systems.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditure of funds; reduce the authority that counties or municipalities have to
raise revenue in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
Due to economies of scale, it is possible that a joint-use wastewater reuse system will result in lower
total costs to the electric utility and wastewater utility when compared with two independent actions by
these parties. While it is possible that the agreement between the parties could apportion cost and
liability responsibilities, the bill does not require the agreement to address these matters. Therefore, the
bill may be interpreted to create an incentive or an expectation that local governments shift cost and
liability responsibilities from wastewater utilities to electric utilities.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On March 9, 2021, the Tourism, Infrastructure & Energy Subcommittee adopted a strike-all amendment
and reported the bill favorably as a committee substitute. The committee substitute:
Specifies that an electric utility’s water reuse project, to be eligible for cost recovery as an
environmental compliance cost under the bill, must:
o Be incurred pursuant to an agreement between the electric utility and a governmental
wastewater utility; and
o Serve to further compliance with environmental laws or regulations that apply to the electric
utility.
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Provides that at least 50 percent of the reclaimed water produced by an eligible project must be
used in conjunction with the water requirements of an electric generating facility.
This analysis is drafted to the committee substitute as approved by the Tourism, Infrastructure & Energy
Subcommittee.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 1051 2021
1 A bill to be entitled
2 An act relating to environmental compliance costs;
3 amending s. 366.8255, F.S.; redefining the term
4 "environmental compliance costs" to include costs or
5 expenses prudently incurred by an electric utility in
6 complying with specified reclaimed water reuse
7 requirements; providing an effective date.
8
9 Be It Enacted by the Legislature of the State of Florida:
10
11 Section 1. Paragraph (d) of subsection (1) of section
12 366.8255, Florida Statutes, is amended to read:
13 366.8255 Environmental cost recovery.—
14 (1) As used in this section, the term:
15 (d) "Environmental compliance costs" includes all costs or
16 expenses incurred by an electric utility in complying with
17 environmental laws or regulations, including, but not limited
18 to:
19 1. Inservice capital investments, including the electric
20 utility's last authorized rate of return on equity thereon.
21 2. Operation and maintenance expenses.
22 3. Fuel procurement costs.
23 4. Purchased power costs.
24 5. Emission allowance costs.
25 6. Direct taxes on environmental equipment.
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26 7. Costs or expenses prudently incurred by an electric
27 utility pursuant to an agreement entered into on or after the
28 effective date of this act and prior to October 1, 2002, between
29 the electric utility and the Florida Department of Environmental
30 Protection or the United States Environmental Protection Agency
31 for the exclusive purpose of ensuring compliance with ozone
32 ambient air quality standards by an electrical generating
33 facility owned by the electric utility.
34 8. Costs or expenses prudently incurred for scientific
35 research and geological assessments of carbon capture and
36 storage conducted in this state for the purpose of reducing an
37 electric utility's greenhouse gas emissions when such costs or
38 expenses are incurred in joint research projects with Florida
39 state government agencies and Florida state universities.
40 9. Costs or expenses prudently incurred by an electric
41 utility after July 1, 2021, pursuant to an agreement between the
42 electric utility and a governmental wastewater utility for the
43 exclusive purpose of the electric utility constructing and
44 operating a wastewater reuse system where operation of the
45 system will serve to further compliance with environmental laws
46 or regulations that apply to the electric utility and where the
47 system fully or partially satisfies a local government's
48 reclaimed water reuse requirements under s. 403.064 or s.
49 403.086. At least 50 percent of the reclaimed water the system
50 produces must be used in conjunction with the water requirements
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51 of an electrical generating facility or facilities owned by the
52 electric utility to offset all or part of the electric utility's
53 water use authorized by permit.
54 Section 2. This act shall take effect July 1, 2021.
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CS/HB 1151
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1151 Department of Highway Safety and Motor Vehicles
SPONSOR(S): Tourism, Infrastructure & Energy Subcommittee, Brannan
TIED BILLS: IDEN./SIM. BILLS: SB 1134
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Tourism, Infrastructure & Energy Subcommittee 15 Y, 0 N, As CS Johnson Keating
2) Commerce Committee Johnson Hamon
SUMMARY ANALYSIS
The bill is a comprehensive bill relating to the Department of Highway Safety and Motor Vehicles (DHSMV). In
summary, the bill:
Adopts Federal Motor Carrier Safety Administration (FMCSA) regulations for commercial motor
vehicles (CMV) as such regulations exist on December 31, 2020, and provides an additional day for
CMV drivers to provide written notice that certain violations were corrected.
Clarifies that safety belt usage requirements apply to a motor vehicle that is operated and stationary on
the public highways of this state.
Transfers the authority to conduct compliance reviews on non-public sector buses from the Department
of Transportation (DOT) to DHSMV to conform to the previous transfer of CMV enforcement from DOT
to DHSMV and makes clarifying and conforming changes.
Conforms Florida’s odometer disclosure requirements to federal regulations.
Requires motor carriers whose registration has been suspended to return their license plates.
Requires DHSMV to deny registrations under the International Registration Plan for motor carriers
meeting specified requirements.
Permanently disqualifies anyone convicted of human trafficking through the use of a CMV from
obtaining a commercial driver license.
Adds texting while driving and using a hand-held mobile telephone while driving as serious disqualifying
offenses on a commercial driver license.
Provides DHSMV with subpoena authority to investigate complaints of violation of various statutes
under its purview.
The bill does not appear to impact state or local government revenues or expenditures. See Fiscal Comments.
The bill has an effective date of July 1, 2021.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h1151b.COM
DATE: 4/2/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Adoption of Federal Commercial Motor Vehicle Regulations
Current Situation
Florida law provides that all owners and drivers of commercial motor vehicles1 (CMVs) operating on the
public highways in interstate commerce are subject to the following Federal Motor Carrier Safety
Administration (FMCSA)2 regulations:3
49 Heading
CFR
Part
382 Controlled Substance and Alcohol Use Testing
383 Commercial Driver’s License Standards; Requirements and Testing
385 Safety Fitness Procedures
390 Federal Motor Carrier Safety Regulations; General
391 Qualifications of Drivers and Longer Combination Vehicle Driver Instructors
392 Driving of Commercial Motor Vehicles
393 Parts and Accessories Necessary for Safe Operation
395 Hours of Service for Drivers
396 Inspection, Repair, and Maintenance
397 Transportation of Hazardous Materials; Driving and Parking Rules
However, Florida law provides that CMV drivers or owners engaged in intrastate commerce are only
subject to FMCSA regulations as they existed in December 31, 2018.4
Since 2018, the FMCSA has adopted final rules on controlled substance testing and hours of service
regulations.
Beginning January 1, 2020, the minimum rate for random controlled substance testing for drivers of
CMVs requiring a commercial driver license (CDL) was increased from 25 percent to 50 percent per
year. Since all owners and drivers of CMVs engaged in intrastate commerce are subject to the rules as
they existed on December 31, 2018, the random controlled substances testing rate remains at 25
percent for intrastate drivers.5
Beginning September 29, 2020, FMCSA revised its hours-of-service regulations providing greater
flexibility to CMV drivers subject to those rules, including revisions to the rules on required breaks/rest
periods, additional exceptions during adverse conditions, and modifications to exceptions for short-haul
trips.6
1
Section 316.003(13), F.S., defines the term “commercial motor vehicle” as any self-propelled or towed vehicle used on the public
highways in commerce to transport passengers or cargo, if such vehicle has a gross vehicle weight rating of 10,000 pounds or more; is
designed to transport more than 15 passengers, including the driver; or is used in the transportation of materials found to be hazardous
for the purposes of the Hazardous Materials Transportation Act, as amended.
2
The Federal Motor Carrier Safety Administration's (FMCSA) mission is to prevent commercial motor vehicle-related fatalities and
injuries. Activities of FMCSA contribute to ensuring safety in motor carrier operations through strong enforcement of safety
regulations, targeting high-risk carriers and commercial motor vehicle drivers; improving safety information systems and commercial
motor vehicle technologies; strengthening commercial motor vehicle equipment and operating standards; and increasing safety
awareness. https://www.federalregister.gov/agencies/federal-motor-carrier-safety-administration (last visited January 25, 2021).
3
Ss. 316.302(1)(a) and (b), F.S..
4
S. 316.302(1)(b), F.S.
5
Department of Highway Safety and Motor Vehicles 2021 Agency Legislative Proposals, p.5.
6
Id.
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For the purpose of enforcing Florida law relating to CMVs, any law enforcement officer of DSHMV or
duly appointed agent who holds a current safety inspector certification from the Commercial Vehicle
Safety Alliance7 may require the driver of any CMV operated on the state’s highways to stop and
submit to an inspection of the vehicle or the driver's records. If the vehicle or driver is found to be
operating in an unsafe condition, or if any required part or equipment is not present or is not in proper
repair or adjustment, and the continued operation would present an unduly hazardous operating
condition, the officer may require the vehicle or the driver to be removed from service 8 until corrected.
However, if continuous operation would not present an unduly hazardous operating condition, the
officer may give written notice requiring correction of the condition within 14 days. 9 The 14 day
requirement is inconsistent with federal requirements requiring carriers to provide written notice within
15 days.10
Effect of the Bill
The bill provides that all CMV drivers and owners are subject to federal CMV rules contained in 49
C.F.R. parts 382, 383, 385, 386, 390-397 as they exist on December 31, 2020.
The bill increases the length of time for CMV operators to correct non-hazardous deficiencies from 14
days to 15 days, consistent with federal requirements.
Safety Belt Usage
Current Situation
Under the Florida Safety Belt Law, with some exceptions, it is unlawful for any person:
To operate a motor vehicle or an autocycle11 unless each passenger and the operator of the
vehicle or autocycle under the age of 18 years are restrained by a safety belt or by a child
restraint device; or
To operate a motor vehicle or an autocycle unless the person is restrained by a safety belt.12
For the purpose of this law, the term “motor vehicle” means a motor vehicle as defined in s. 316.003,
F.S.,13 which is operated on the roadways, streets, and highways of this state. The term does not
include a school bus, a bus used for the transportation of persons for compensation. a farm tractor or
implement of husbandry, a truck having a gross vehicle weight rating of more than 26,000 pounds, a
motorcycle, a moped, a bicycle, or an electric bicycle.14
Additionally, it is unlawful for any person 18 years of age or older to be a passenger in the front seat of
a motor vehicle or an autocycle unless such person is restrained by a safety belt when the vehicle or
7
The Commercial Vehicle Safety Alliance (CVSA) is a nonprofit association comprised of local, state, provincial, territorial and
federal commercial motor vehicle safety officials and industry representatives. The Alliance aims to achieve uniformity, compatibility
and reciprocity of commercial motor vehicle inspections and enforcement by certified inspectors dedicated to driver and vehicle
safety. https://www.cvsa.org/about-cvsa/ (Last visited January 25, 2021).
8
This is pursuant to the North American Standard Out-of-Service Criteria.
9
S. 316.302(9), F.S.
10
Department of Highway Safety and Motor Vehicles, Agency Analysis of 2021 House Bill 1151, p. 2.
11
Section 316.003(2), F.S., defines the term “autocycle” as a three-wheeled motorcycle that has two wheels in the front and one wheel
in the back; is equipped with a roll cage or roll hoops, a seat belt for each occupant, antilock brakes, a steering wheel, and seating that
does not require the operator to straddle or sit astride it; and is manufactured in accordance with the applicable federal motorcycle
safety standards in 49 C.F.R. part 571 by a manufacturer registered with the National Highway Traffic Safety Administration.
12
S. 316.614(3), F.S.
13
Section 316.003(44), F.S., defines the term “motor vehicle” as a self-propelled vehicle not operated upon rails or guideway, but not
including any bicycle, electric bicycle, motorized scooter, electric personal assistive mobility device, mobile carrier, personal delivery
device, swamp buggy, or moped.
14
S. 316.641(3)(a), F.S.
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autocycle is in motion.15 The statutory base fine of a nonmoving violation is $30;16 however, with
various fees and surcharges, the total fine up to is $108.17
Court cases have interpreted the Florida Safety Belt Law to apply only when the vehicle is in motion.18
Effect of the Bill
The bill amends the definition of the term “motor vehicle” for purposes of the Florida Safety Belt Law to
provide that it includes a motor vehicle which is operated and stationary on the public highways of this
state, for example a motor vehicle stopped at a traffic signal.
Nonpublic Sector Buses
Current Situation
In 2011, DOT’s Office of Motor Carrier Compliance was transferred to the Florida Highway Patrol (FHP)
within DHSMV.19 However, at that time, Florida law relating to nonpublic sector buses20 was not
amended to correspond to other statutory changes. Therefore, Florida law still requires DOT to revise
standards for the safe operation of nonpublic sector buses. These standards must be directed toward
ensuring that:
Nonpublic sector buses are safely maintained, equipped, and operated.
Nonpublic sector buses are carrying the insurance required by law and carrying liability
insurance on the checked baggage of passengers.
Florida license tags are purchased for nonpublic sector buses.
The driving records of drivers of nonpublic sector buses are checked by their employers at least
once each year to ascertain whether the driver has a suspended or revoked driver license.21
The statute currently provides that DOT personnel may conduct compliance reviews for determining
compliance with these requirements. A civil penalty not to exceed $5,000 in the aggregate may be
assessed against any person who violates any provision of this section or who violates any DOT rule or
order. A civil penalty not to exceed $25,000 in the aggregate may be assessed for violations found in a
follow-up compliance review conducted within a 24-month period. A civil penalty not to exceed $25,000
in the aggregate may be assessed and the motor carrier may be enjoined pursuant to s. 316.3026,
F.S., if violations are found after a second follow-up compliance review within 12 months after the first
follow-up compliance review.22
Effect of the Bill
The bill transfers from DOT to DHSMV the authority to conduct compliance reviews on nonpublic sector
buses. This conforms the statute to the 2011 transfer of CMV enforcement from DOT to DHSMV.
The bill provides that all owners and drivers of nonpublic sector buses operated on highways in Florida
are subject to applicable portions of the Code of Federal Regulations, removes duplicative standards
for nonpublic sector buses, and removes the time periods for follow-up compliance investigations.
While the bill removes penalty language, the bill references existing statutory language that provides for
identical penalties.
15
S. 316.614(5), F.S.
16
S. 318.18(2), F.S.
17
Florida Association Clerk of Courts, 2020 Distribution Schedule, p. 21.
https://cdn.ymaws.com/www.flclerks.com/resource/resmgr/advisories/advisories_2021/21bull005_Attach_2_2020_Dist.pdf (last
visited January 22, 2021).
18
Department of Highway Safety and Motor Vehicles, Agency Analysis of 2021 House Bill 1151, p. 3.
19
Ch. 2011-66, L.O.F.
20
Section 316.003(47), F.S., defines the term “nonpublic sector bus” as any bus which is used for the transportation of persons for
compensation and which is not owned, leased, operated, or controlled by a municipal, county, or state government or a
governmentally owned or managed nonprofit corporation.
21
S. 316.70(1), F.S.
22
S. 316.70(2), F.S.
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The bill also authorizes a law enforcement officer of the DHSMV or a duly appointed agent of DHSMV
with a current safety inspector certification from the Commercial Vehicle Safety Alliance to inspect
nonpublic sector buses and remove them from service if continued operation would present an unduly
hazardous operating condition. However, if continuous operation would not be unduly hazardous, the
officer or agent may give written notice requiring correction of the condition within 15 days after the
inspection.
Odometer Disclosure Requirements
Current Situation
Odometer fraud is a federal offense, and the National Highway Traffic Safety Administration (NHTSA)
requires sellers to disclose and declare vehicle odometer readings at the time of sale. According to
NHTSA, due to an increase in the current average vehicle age to almost 12 years from the previous
average of eight years, an increasingly large number of vehicles are subject to a heightened risk of
odometer fraud. In order to combat the increased number of motor vehicles subject to a risk of
odometer fraud, NHTSA recently amended the federal rule regarding the exemption from odometer
disclosure. The exemption, which previously applied to vehicles 10 years old or older, now applies to
vehicles 20 years old or older, beginning with model year 2011 or newer in calendar year 2021.23
Florida law is inconsistent with the current federal rules and, with limited exceptions, only requires
certain odometer disclosures for vehicles 10 years old or newer.
Effect of the Bill
The bill conforms Florida law to NHTSA’s recently adopted odometer disclosure requirements by
providing that a vehicle with a model year of 2011 or later is exempt from odometer disclosure after 20
years and a vehicle with a model year of 2010 or earlier is exempt after 10 years.
Performance and Registration Information Systems Management (PRISM)
Current Situation
Federal Regulations
FMSCA’s Performance and Registration Information Systems Management (PRISM) program is a
component of its mission to reduce the number of CMV crashes, injuries, and fatalities. PRISM
provides a safety mechanism to identify and immobilize motor carriers24 with serious safety
deficiencies25 and hold them accountable using registration and law enforcement sanctions. PRISM
requires motor carriers to correct their safety deficiencies to continue operating or face progressively
stringent sanctions.26
Full participation in PRISM is mandatory for all states as a requirement of the Motor Carrier Safety
Assistance Program. Florida is at the full participation level of PRISM.27
FMCSA defines “enhanced participation” in regard to PRISM as when a state has the authority to deny
vehicle registration to a motor carrier and its vehicles when the motor carrier is attempting to avoid
FMCSA enforcement sanctions by “reincarnating” with a new United States Department of
Transportation (USDOT) number and company name while maintaining the same officers and
23
Department of Highway Safety and Motor Vehicles, Agency Analysis of 2021 House Bill 1151, p. 3
24
The term “motor carrier” means a for-hire motor carrier or a private motor carrier. The term includes a motor carrier's agents,
officers and representatives as well as employees responsible for hiring, supervising, training, assigning, or dispatching of drivers and
employees concerned with the installation, inspection, and maintenance of motor vehicle equipment and/or accessories. 49 C.F.R. s.
390.5.
25
FMCSA defines the term “motor carrier with serious safety deficiencies” as a motor carrier that is prohibited from operating by
FMCSA through the issuance of a federal out-of-service (“OOS”) order.
26
Department of Highway Safety and Motor Vehicles, Agency Analysis of 2021 House Bill 1151 p. 3 (March 10, 2021).
27 Id.
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directors, business address, telephone number, and email of the out-of-service carrier. Currently,
DHSMV does not have this authority.28
While FMCSA has the ability to sanction motor carriers for safety deficiencies, vehicle registrations are
solely within state jurisdiction. The enhanced participation level of PRISM requires states to suspend,
revoke, or deny vehicle registration of a motor carrier’s vehicles when the motor carrier is prohibited
from operating by FMCSA. Companies that operate commercial vehicles transporting passengers or
hauling cargo in interstate commerce must be registered with FMCSA, have a USDOT number, and
comply with federal safety regulations in order to have their vehicles registered under the International
Registration Plan.29 When a company fails to meet FMCSA safety requirements, it may be placed out-
of-service.30
In Florida, attempts to register as a reincarnated carrier occur on a regular basis. Because DSHMV
does not have the authority to deny registration, there is currently no way to track how many Florida-
based carriers who reincarnate are circumventing FMCSA sanctions.31
An effectiveness evaluation report released in February 2016 by FMCSA’s Strategic Planning and
Program Evaluation Division determined that, between 2008 and 2013, states that fully participated in
PRISM compared to non-fully participating states have
A 20.4 percent observable reduction in all CMV crashes,
A 9.8 percent observable reduction in fatalities involving all CMV crashes, and
A 6.9 percent reduction in state registered CMVs being placed out-of-service roadside for
operating while under a federal out-of-service order.32
Effect of the Bill
The bill requires motor carriers or vehicle owners to return suspended plates to DHSMV or surrender
them to law enforcement.
The bill authorizes DHSMV to deny registration if an applicant fails to disclose material information
required on the application, or if the applicant attempts to hide the disclosure of the real party in interest
who has been issued a federal out-of-service order, or if the applicant’s business is operated,
managed, or otherwise controlled or affiliated with a person who is ineligible for registration, including
the applicant entity, a relative, family member, corporate officer, or shareholder.
Human Trafficking
Current Situation
Florida’s criminal laws define the term “human trafficking” as transporting, soliciting, recruiting,
harboring, providing, enticing, maintaining, or obtaining another person for the purpose of exploitation
of that person. 33
Federal law defines the term “severe forms of trafficking in persons” as:
Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which
the person induced to perform such act has not attained 18 years of age; or
The recruitment, harboring, transportation, provision, or obtaining of a person for labor or
services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary
servitude, peonage, debt bondage, or slavery.34
28
Id.
29
The International Registration Plan (Plan) is a reciprocity agreement among states of the US, the District of Columbia and
provinces of Canada which recognizes the registration of commercial motor vehicles registered by other jurisdictions. It provides for
payment of apportioned licensing fees based on the total distance operated in all member jurisdictions. https://www.irponline.org/ (last
visited March 18, 2021).
30
Department of Highway Safety and Motor Vehicles, Agency Analysis of 2021 House Bill 1151 p. 4 (March 10, 2021).
31
Id. at 4.
32
Id. at 4.
33
S. 787.06(2)(d), F.S.
34
22 U.S.C. 7012 (11)
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On January 8, 2019, the federal “No Human Trafficking on Our Roads Act” was signed into law. This
legislation directs the USDOT to disqualify for life any individual who uses a CMV in committing a
felony involving a severe form of trafficking in persons. On September 23, 2019, an FMCSA rule went
into effect that permanently bans drivers convicted of human trafficking from operating a CMV for which
a CDL or a commercial learner’s permit is required.35
Currently, Florida does not have specific statutory authority to take action against a CDL when an
individual commits a felony involving human trafficking.36
Effect of the Bill
The bill defines the term “human trafficking” for purposes of the driver license law as having same
meaning as provided in Florida’s criminal laws.
The bill provides that DHSMV may not issue a driver license to any person, as a CMV operator, who
has been convicted of, or has entered a plea of guilty or nolo contendere, regardless of whether
adjudication was withheld, to any felony involving human trafficking under state or federal law involving
the use of a CMV.
The bill requires each clerk of court to promptly report to DHSMV each conviction, regardless of
whether adjudication was withheld, for human trafficking which involves the use of a CMV.
The bill requires the court to permanently revoke the CDL of a person who has been convicted of, or
has entered a plea of guilty or nolo contendere, regardless of whether adjudication is withheld to any
felony involving human trafficking under state or federal law involving the use of a commercial motor
vehicle. If the court has not permanently revoked such driver license or driving privilege within 30 days
after imposing a sentence, DHSMV must permanently revoke the driver license or driving privilege.
The bill provides that any person who uses a CMV involving human trafficking under state or federal
law must, be permanently disqualified from operating a commercial motor vehicle upon conviction of, or
plea of guilty or nolo contendere to, regardless of whether adjudication is withheld, such felony. This is
in addition to any other applicable penalty.
CDL Eight Year Requirement
Current Situation
Pursuant to s. 322.18, F.S., DHSMV issues an original CDL that expires eight years from the date of
the driver’s next birthday. This allows an original CDL holder to have a license that is valid for more
than eight years from the issue date. However, under federal regulations37 a CDL cannot be valid for
more than eight years from the date of issuance. This issue has been pointed out as a deficiency in an
FMCSA compliance audit.38
Effect of the Bill
The bill provides that a CDL expires at midnight eight years after the licensee’s last birthday. This
change will not impact current CDL holders.39
CMV-Serious Disqualifying Offense
Current Situation
In 2013, the Legislature codified a federal prohibition on drivers of CMVs using handheld devices while
driving. However, at that time, the law was not amended to add this infraction to the list of serious
disqualifying offenses.
35
Department of Highway Safety and Motor Vehicles, Agency Analysis of 2021 House Bill 1151, p. 4. (March 5, 2021).
36
Id.
37
49 C.F.R. s. 383.73
38
Department of Highway Safety and Motor Vehicles, Agency Analysis of 2021 House Bill 1151, p. 5. (March 5, 2021).
39
Id. at 7.
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Under current law, a person who, for offenses occurring within a three-year period, is convicted of two
serious traffic violations arising in separate incidents committed in a CMV must, in addition to any other
applicable penalties, be disqualified from operating a CMV for a period of 60 days. A holder of a CDL or
commercial learner’s permit who, for offenses occurring within a 3-year period, is convicted of two
serious traffic violations, or any combination thereof, arising in separate incidents committed in a
noncommercial motor vehicle must, in addition to any other applicable penalties, be disqualified from
operating a CMV for a period of 60 days if such convictions result in the suspension, revocation, or
cancellation of the license holder’s driving privilege. Current serious disqualifying offenses include, but
are not limited to, reckless driving, driving a CMV without a CMV license, improper lane change, and
following too close.40
When these violations occur in other states, DHSMV places these violations on the driver record as
“not applicable to Florida Statutes” and does not evaluate them to determine if a disqualification should
be imposed on the driver. This situation was addressed in a recent FMCSA compliance audit.41
Effect of the Bill
The bill provides that texting while driving a commercial motor vehicle or using a hand-held mobile
telephone while driving a commercial motor vehicle as provided by federal regulations are serious
disqualifying offenses for a CDL. This will give DHSMV the statutory authority to comply with the
deficiency in the FMCSA compliance audit.
Subpoena Authority
Current Situation
Under current law, DHSMV has limited authority to issue investigatory subpoenas. Specifically, s.
320.67 and s. 320.861, F.S., authorize DHSMV to issue a subpoena for the attendance of witnesses
and production of documents when DHSMV receives a written complaint against a motor vehicle dealer
or manufacturer. The two statutes are largely redundant, with the only material difference being that s.
320.67, F.S., additionally provides that any information obtained may not be used against the dealer or
manufacturer as the basis for a criminal prosecution.42
DHSMV has implemented a pilot program in Miami-Dade County in which it regulates private rebuilt
inspection providers,43 who inspect rebuilt motor vehicles as a prerequisite to issuance of a rebuilt
certificate of title. This inspection process is designed to prevent the use of stolen parts and vehicles in
the rebuilding process and assists law enforcement with the investigation of theft and related fraud.
This inspection process was privatized in Miami-Dade County as part of a pilot program which was later
extended in 2019. Pursuant to s. 319.141, F.S., DHSMV has entered into memoranda of understanding
(MOU) with private rebuilt inspection providers to provide these services in Miami-Dade County.44
Currently, DHSMV does not have the statutory authority to open an investigation of a private rebuilt
inspection provider, issue subpoenas, or take testimony from witnesses in determining whether the
provider has violated ch. 319, F.S., or the MOU between DHSMV and the provider. In certain
instances, it may be necessary to investigate a private rebuilt inspection provider when the entity may
be colluding with a chop shop to disguise the identity of a stolen motor vehicle and obtain a clean title
to the vehicle. DHSMV currently lacks authority to issue subpoenas to third parties that may aid in
determining whether the private rebuilt inspection provider has violated ch. 319, F.S., or a contract term
in the MOU.45
40
Section 322.61(1), F.S.
41
Department of Highway Safety and Motor Vehicles, Agency Analysis of 2021 House Bill 1151, p. 4. (March 5, 2021).
42
Email from Kevin Jacobs, Legislative Affairs Director, Department of Highway Safety and Motor Vehicles, RE: Investigative
Authority. (March 18, 2021).
43
The pilot program is conducted pursuant to s. 319.141, F.S.,
44
Supra note 42.
45
Id.
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DATE: 4/2/2021
Additionally, DHSMV lacks authority to issue investigatory subpoenas and take testimony as part of an
investigation of a person for violating provisions of ch. 319, F.S., relating to title certificates; ch. 320,
F.S., relating to motor vehicle manufacturers and dealers; or ch. 322, F.S., relating to driver licenses.
According to DHSMV, this prevents it from obtaining critical testimony and documents from third-party
entities which may demonstrate violations of these chapters sufficient to warrant appropriate regulatory
action by DHSMV and/or referral to another entity for further action.46
Examples of issues that DHSMV may use subpoena authority to investigate include odometer rollback,
fraudulent repair and storage title transactions, and driver license fraud.47
Effect of the Bill
The bill authorizes DHSMV to issue investigatory subpoenas, take depositions, and compel the
production of documents as it relates to the following:
Potential violations related to authorized private rebuilt inspection providers;
Potential violations of ch. 319, F.S., such as unlawful issuances of certificates of title;
Potential violations of ch. 320, F.S., by motor vehicle dealers and manufacturers; and
Potential violations of ch. 322, F.S., such as unlawful issuances of driver licenses and
identification cards.
In addition to the expanded authority to conduct such investigations, the bill establishes a procedure for
enforcing subpoenas in the event of noncompliance. The bill provides DHSMV with the authority to
enforce the subpoena in circuit court and subject the person subpoenaed to a contempt of court order
in the event of continued noncompliance. DHSMV may designate agents to serve subpoenas and
adopt rules to administer these sections.
HB 1359 (2021) to which this bill is linked, creates a public records exemption from disclosure for all
information received by DHSMV as a result of an investigation. The exemption would cease when the
investigation is closed or when administrative action taken by DHSMV has either concluded or resulted
in the information having been made a part of any hearing or court proceeding. HB 1359 further
clarifies that DHSMV may release information that is made confidential and exempt in the furtherance
of its official duties and responsibilities or the duties and responsibilities of another governmental
agency entitled to receive such information.
Effective Date
The bill has an effective date of July 1, 2021.
B. SECTION DIRECTORY:
Section 1 Amends s. 316.302, F.S., relating to commercial motor vehicles.
Section 2 Amends s. 316.614, F.S., relating to safety belt usage.
Section 3 Amends s. 316.70, F.S., relating to nonpublic sector buses.
Section 4 Amends s. 319.225, F.S., relating to transfer and reassignment forms and odometer
disclosure statements.
Section 5 Amends s. 320.0715, F.S., relating to the International Registration Plan.
Section 6 Amends s. 322.01, F.S., providing definitions.
Section 7 Amends s. 322.05, F.S., relating to persons not to be licensed.
46
Id.
47
Attachment to E-mail from Kevin Jacobs, Legislative Affairs Director, Department of Highway Safety and Motor Vehicles, RE:
Subpoena Authority Examples. (March 12, 2021).
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DATE: 4/2/2021
Section 8 Amends s. 322.18, F.S., relating to original applications, licenses, and renewals.
Section 9 Amends s. 322.25, F.S., relating to when a court must forward license to DHSMV and report
convictions.
Section 10 Amends s. 322.28, F.S., relating to period of suspension or revocation.
Section 11 Amends s. 322.61, F.S., relating to disqualification from operating a commercial motor
vehicle.
Section 12 Creates s. 319.1414, F.S., relating to investigations; examinations; subpoenas; hearings;
witnesses.
Section 13 Amends s. 319.25, F.S., relating to cancellation of certificates; investigations; subpoenas
and other process; oaths; rules.
Section 14 Amends s. 320.861, F.S., relating to investigations, subpoenas, and other process; oaths,
rules.
Section 15 Creates s. 322.71, F.S., relating to investigations, subpoenas and other process; oaths,
rules.
Section 16 Amends s. 322.34, F.S., conforming a cross reference.
Section 17 Provides an effective date of July 1, 2021.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
While the bill does not have a direct impact on state government revenues, state noncompliance with
certain federal regulations related to human trafficking using a CMV, serious disqualifying offenses for
CMV drivers, and failing to achieve compatibility with FMCSA regulations within three years of the
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DATE: 4/2/2021
effective date of the federal regulation could impact the state’s receipt of federal funds.48 The bill
appears to achieve state compliance with these regulations.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditure of funds; reduce the authority that counties of municipalities have to
raise revenue in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill does not provide a grant of rulemaking, nor does it require rulemaking.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On March 22, 2021, the Tourism, Infrastructure & Energy Subcommittee adopted two amendments and
reported the bill favorably as a committee substitute. The committee substitute:
Revises provisions regarding non-public sector buses:
o Replaces language regarding penalties for violations by non-public sector buses with references
to existing law related to commercial motor vehicle penalties. The penalties do not change.
o Addresses commercial motor vehicle violations that do not create hazards and provides 15 days
for operators to provide notice that certain violations were corrected.
Provides DHSMV with investigative and subpoena power and the ability to administer oaths or
affirmations, examine witnesses, require affidavits, take depositions, and compel the attendance of
witnesses and the production of documents, records, and other evidence for use in conducting
investigations or examinations into:
o Authorized private rebuilt inspection providers;
o Persons suspected of violating violated ch. 319, F.S., relating to motor vehicle title certificates;
o Persons suspected of violating violated ch. 320, F.S., relating to motor vehicles manufacturers
and distributors; and
o Persons suspected of violating violated ch. 322, F.S., relating to driver licenses.
This analysis is drafted to the committee substitute as approved by the Tourism, Infrastructure & Energy
Subcommittee.
48
E-mail from Kevin Jacobs, Legislative Affairs Director, Department of Highway Safety and Motor Vehicles, RE: DHSMV Package
questions. (February 24, 2021).
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DATE: 4/2/2021
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 1151 2021
1 A bill to be entitled
2 An act relating to the Department of Highway Safety
3 and Motor Vehicles; amending s. 316.302, F.S.;
4 revising regulations applicable to owners and drivers
5 of commercial motor vehicles; revising the length of
6 time within which an officer is authorized to give
7 written notice requiring correction of an unduly
8 hazardous operating condition; amending s. 316.614,
9 F.S.; revising the definition of the term "motor
10 vehicle"; amending s. 316.70, F.S.; providing that
11 owners and drivers of nonpublic sector buses operated
12 on public highways of this state are subject to
13 specified provisions of law; authorizing the
14 Department of Highway Safety and Motor Vehicles to
15 conduct compliance reviews for a specified purpose;
16 revising civil penalties; authorizing certain law
17 enforcement officers and appointed agents to require
18 drivers of nonpublic sector buses to submit to an
19 inspection of the bus and the driver's records;
20 authorizing such officers and agents to require the
21 bus and driver to be removed from service under
22 specified conditions; authorizing such officers and
23 agents to give written notice; conforming provisions
24 to changes made by the act; amending s. 319.225, F.S.;
25 revising applicability; providing that vehicles that
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26 meet certain conditions are exempt from odometer
27 disclosure after specified periods of time; amending
28 s. 320.0715, F.S.; requiring motor carriers and
29 vehicle owners whose registrations have been suspended
30 to return their license plates to the department or
31 surrender their license plates to law enforcement;
32 requiring the department to deny registration of a
33 motor vehicle trip permit under certain conditions;
34 amending s. 322.01, F.S.; defining the term "human
35 trafficking"; amending s. 322.05, F.S.; prohibiting
36 the department from issuing a license to any person as
37 a commercial motor vehicle operator under specified
38 conditions; amending s. 322.18, F.S.; providing that
39 commercial driver licenses expire at midnight 8 years
40 after the licensee's birthday; amending s. 322.25,
41 F.S.; requiring clerks of court to promptly report to
42 the department each conviction for human trafficking,
43 regardless of whether adjudication is withheld;
44 amending s. 322.28, F.S.; requiring the court to
45 permanently revoke the commercial driver license of a
46 person under specified conditions; requiring the
47 department to permanently revoke the driver license or
48 driving privilege of the person if the court has not
49 revoked such driver license or driving privilege
50 within a specified timeframe; amending s. 322.61,
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51 F.S.; revising provisions for disqualification from
52 operating a commercial motor vehicle; providing a
53 penalty for any person who uses a commercial motor
54 vehicle in the commission of a felony involving human
55 trafficking; creating s. 319.1414, F.S.; authorizing
56 the department to conduct investigations and
57 examinations of department-authorized private rebuilt
58 inspection providers; authorizing the department to
59 exercise certain powers when conducting such
60 investigations and examinations; authorizing the
61 department to petition a court if a person refuses to
62 testify, produce materials, or obey a subpoena or
63 subpoena duces tecum; requiring the court to issue an
64 order; requiring such person to obey the subpoena or
65 show cause for failing to obey the subpoena; providing
66 a penalty for a person who fails to comply with the
67 court's order; authorizing the department to designate
68 agents for specified purposes; providing that
69 subpoenaed witnesses are entitled to witness fees;
70 providing exceptions; authorizing the department to
71 adopt rules; amending s. 319.25, F.S.; authorizing the
72 department to conduct investigations and examinations
73 relating to violations of provisions relating to title
74 certificates; authorizing the department to exercise
75 certain powers when conducting such investigations and
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76 examinations; authorizing the department to petition a
77 court if a person refuses to testify, produce
78 materials, or obey a subpoena or subpoena duces tecum;
79 requiring the court to issue an order; requiring such
80 person to obey the subpoena or show cause for failing
81 to obey the subpoena; providing a penalty for a person
82 who fails to comply with the court's order;
83 authorizing the department to designate agents for
84 specified purposes; providing that subpoenaed
85 witnesses are entitled to witness fees; providing
86 exceptions; authorizing the department to adopt rules;
87 amending s. 320.861, F.S.; authorizing the department
88 to conduct investigations and examinations relating to
89 violations of certain laws, rules, or orders relating
90 to motor vehicle licenses; revising the powers of the
91 department relating to conducting such investigations
92 and examinations; authorizing the department to
93 petition a court if a person refuses to testify,
94 produce materials, or obey a subpoena or subpoena
95 duces tecum; requiring the court to issue an order;
96 requiring such person to obey the subpoena or show
97 cause for failing to obey the subpoena; providing a
98 penalty for a person who fails to comply with the
99 court's order; authorizing the department to designate
100 agents for specified purposes; providing that
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101 subpoenaed witnesses are entitled to witness fees;
102 providing exceptions; authorizing the department to
103 adopt rules; creating s. 322.71, F.S.; authorizing the
104 department to conduct investigations and examinations
105 relating to violations of certain laws, rules, or
106 orders relating to driver licenses; authorizing the
107 department to exercise certain powers when conducting
108 such investigations and examinations; authorizing the
109 department to petition a court if a person refuses to
110 testify, produce materials, or obey a subpoena or
111 subpoena duces tecum; requiring the court to issue an
112 order; requiring such person to obey the subpoena or
113 show cause for failing to obey the subpoena; providing
114 a penalty for a person who fails to comply with the
115 court's order; authorizing the department to designate
116 agents for specified purposes; providing that
117 subpoenaed witnesses are entitled to witness fees;
118 providing exceptions; authorizing the department to
119 adopt rules; amending s. 322.34, F.S.; conforming a
120 cross-reference; providing an effective date.
121
122 Be It Enacted by the Legislature of the State of Florida:
123
124 Section 1. Paragraph (b) of subsection (1) and subsection
125 (9) of section 316.302, Florida Statutes, are amended to read:
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126 316.302 Commercial motor vehicles; safety regulations;
127 transporters and shippers of hazardous materials; enforcement.—
128 (1)
129 (b) Except as otherwise provided in this section, all
130 owners and or drivers of commercial motor vehicles that are
131 engaged in intrastate commerce are subject to the rules and
132 regulations contained in 49 C.F.R. parts 382, 383, 385, 386, and
133 390-397, as such rules and regulations existed on December 31,
134 2020 2018.
135 (9) For the purpose of enforcing this section, any law
136 enforcement officer of the Department of Highway Safety and
137 Motor Vehicles or duly appointed agent who holds a current
138 safety inspector certification from the Commercial Vehicle
139 Safety Alliance may require the driver of any commercial vehicle
140 operated on the highways of this state to stop and submit to an
141 inspection of the vehicle or the driver's records. If the
142 vehicle or driver is found to be operating in an unsafe
143 condition, or if any required part or equipment is not present
144 or is not in proper repair or adjustment, and the continued
145 operation would present an unduly hazardous operating condition,
146 the officer may require the vehicle or the driver to be removed
147 from service pursuant to the North American Standard Out-of-
148 Service Criteria, until corrected. However, if continuous
149 operation would not present an unduly hazardous operating
150 condition, the officer may give written notice requiring
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151 correction of the condition within 15 14 days.
152 (a) Any member of the Florida Highway Patrol or any law
153 enforcement officer employed by a sheriff's office or municipal
154 police department authorized to enforce the traffic laws of this
155 state pursuant to s. 316.640 who has reason to believe that a
156 vehicle or driver is operating in an unsafe condition may, as
157 provided in subsection (11), enforce the provisions of this
158 section.
159 (b) Any person who fails to comply with an officer's
160 request to submit to an inspection under this subsection commits
161 a violation of s. 843.02 if the person resists the officer
162 without violence or a violation of s. 843.01 if the person
163 resists the officer with violence.
164 Section 2. Paragraph (a) of subsection (3) of section
165 316.614, Florida Statutes, is amended to read:
166 316.614 Safety belt usage.—
167 (3) As used in this section:
168 (a) "Motor vehicle" means a motor vehicle as defined in s.
169 316.003 which is operated on the roadways, streets, and highways
170 of this state or when stationary at a traffic control device.
171 The term does not include:
172 1. A school bus.
173 2. A bus used for the transportation of persons for
174 compensation.
175 3. A farm tractor or implement of husbandry.
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176 4. A truck having a gross vehicle weight rating of more
177 than 26,000 pounds.
178 5. A motorcycle, a moped, a bicycle, or an electric
179 bicycle.
180 Section 3. Section 316.70, Florida Statutes, is amended to
181 read:
182 316.70 Nonpublic sector buses; safety rules.—
183 (1) All owners and drivers of nonpublic sector buses
184 operated on the public highways of this state are subject to the
185 rules and regulations The Department of Transportation shall
186 establish and revise standards to ensure the safe operation of
187 nonpublic sector buses, which standards shall be those contained
188 in 49 C.F.R. parts 382, 385, and 390-397 to ensure and which
189 shall be directed toward ensuring that:
190 (a) Nonpublic sector buses are safely maintained,
191 equipped, and operated.
192 (b) Nonpublic sector buses are carrying the insurance
193 required by law and carrying liability insurance on the checked
194 baggage of passengers not to exceed the standard adopted by the
195 United States Department of Transportation.
196 (c) Florida license tags are purchased for nonpublic
197 sector buses pursuant to s. 320.38.
198 (d) The driving records of drivers of nonpublic sector
199 buses are checked by their employers at least once each year to
200 ascertain whether the driver has a suspended or revoked driver
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201 license.
202 (2) Department of Highway Safety and Motor Vehicles
203 Transportation personnel may conduct compliance reviews for the
204 purpose of determining compliance with this section. A civil
205 penalty not to exceed $5,000 in the aggregate may be assessed
206 against any person who violates any provision of this section or
207 who violates any rule or order of the department found during a
208 compliance review as provided in s. 316.3025. A of
209 Transportation. A civil penalty not to exceed $25,000 in the
210 aggregate may be assessed for violations found in a followup
211 compliance review conducted within a 24-month period. A civil
212 penalty not to exceed $25,000 in the aggregate may be assessed
213 and the motor carrier may be enjoined from operation pursuant to
214 s. 316.3026 for if violations found during a are found after a
215 second followup compliance review within 12 months after the
216 first followup compliance review. Motor carriers found to be
217 operating without insurance coverage required by s. 627.742 or
218 49 C.F.R. part 387 may be enjoined as provided in s. 316.3026.
219 (3) For the purpose of enforcing this section, any law
220 enforcement officer of the Department of Highway Safety and
221 Motor Vehicles or a duly appointed agent of the department who
222 holds a current safety inspector certification from the
223 Commercial Vehicle Safety Alliance may require the driver of any
224 nonpublic sector bus operated on the highways of this state to
225 stop and submit to an inspection of the vehicle or the driver's
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226 records. If the vehicle is being operated or the driver is
227 operating the vehicle in an unsafe condition, or if any required
228 part or equipment is not present or is not in proper repair or
229 adjustment, and the continued operation would be unduly
230 hazardous, the officer or agent may require the vehicle or the
231 driver to be removed from service pursuant to the North American
232 Standard Out-of-Service Criteria until all safety concerns are
233 corrected. However, if continuous operation would not be unduly
234 hazardous, the officer or agent may give written notice
235 requiring correction of the condition within 15 days after the
236 inspection.
237 (4)(3) School buses subject to the provisions of chapter
238 1006 or s. 316.615 are exempt from the provisions of this
239 section.
240 Section 4. Subsection (4) of section 319.225, Florida
241 Statutes, is amended to read:
242 319.225 Transfer and reassignment forms; odometer
243 disclosure statements.—
244 (4) Upon transfer or reassignment of a certificate of
245 title to a used motor vehicle, the transferor shall complete the
246 odometer disclosure statement provided for by this section and
247 the transferee shall acknowledge the disclosure by signing and
248 printing his or her name in the spaces provided. This subsection
249 does not apply to a vehicle that has a gross vehicle rating of
250 more than 16,000 pounds, a vehicle that is not self-propelled,
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251 or a vehicle that is exempt from odometer disclosure. A vehicle
252 with a model year of 2011 or newer is exempt from odometer
253 disclosure after 20 years, and a vehicle with a model year of
254 2010 or older is exempt from odometer disclosure after 10 years
255 old or older. A lessor who transfers title to his or her vehicle
256 without obtaining possession of the vehicle shall make odometer
257 disclosure as provided by 49 C.F.R. s. 580.7. Any person who
258 fails to complete or acknowledge a disclosure statement as
259 required by this subsection is guilty of a misdemeanor of the
260 second degree, punishable as provided in s. 775.082 or s.
261 775.083. The department may not issue a certificate of title
262 unless this subsection has been complied with.
263 Section 5. Subsections (6) and (7) are added to section
264 320.0715, Florida Statutes, to read:
265 320.0715 International Registration Plan; motor carrier
266 services; permits; retention of records.—
267 (6) A motor carrier or vehicle owner whose registration
268 has been suspended shall return his or her license plate to the
269 department or surrender his or her license plates to law
270 enforcement.
271 (7) The department shall deny registration if:
272 (a) The applicant fails to disclose material information
273 required on the application;
274 (b) The applicant has applied in an attempt to hide the
275 disclosure of the real party in interest who has been issued a
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276 federal out-of-service order; or
277 (c) The applicant's business is operated, managed, or
278 otherwise controlled by or affiliated with a person who is
279 ineligible for registration, including the applicant entity, a
280 relative, a family member, a corporate officer, or a
281 shareholder.
282 Section 6. Present subsections (25) through (47) of
283 section 322.01, Florida Statutes, are redesignated as
284 subsections (26) through (48), respectively, and a new
285 subsection (25) is added to that section, to read:
286 322.01 Definitions.—As used in this chapter:
287 (25) "Human trafficking" has the same meaning as provided
288 in s. 787.06(2)(d).
289 Section 7. Subsection (12) is added to section 322.05,
290 Florida Statutes, to read:
291 322.05 Persons not to be licensed.—The department may not
292 issue a license:
293 (12) To any person, as a commercial motor vehicle
294 operator, who has been convicted of, or has entered a plea of
295 guilty or nolo contendere to, regardless of whether adjudication
296 was withheld, any felony involving human trafficking under state
297 or federal law involving the use of a commercial motor vehicle.
298 Section 8. Paragraph (f) is added to subsection (2) of
299 section 322.18, Florida Statutes, to read:
300 322.18 Original applications, licenses, and renewals;
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301 expiration of licenses; delinquent licenses.—
302 (2) Each applicant who is entitled to the issuance of a
303 driver license, as provided in this section, shall be issued a
304 driver license, as follows:
305 (f) Notwithstanding any other provision of this chapter,
306 an applicant applying for an original issuance of a commercial
307 driver license as defined in s. 322.01(7) shall be issued a
308 driver license that expires at midnight 8 years after the
309 licensee's last birthday.
310 Section 9. Subsection (7) is added to section 322.25,
311 Florida Statutes, to read:
312 322.25 When court to forward license to department and
313 report convictions.—
314 (7) Each clerk of court shall promptly report to the
315 department each conviction, regardless of whether adjudication
316 was withheld, for human trafficking which involves the use of a
317 commercial motor vehicle.
318 Section 10. Subsection (8) is added to section 322.28,
319 Florida Statutes, to read:
320 322.28 Period of suspension or revocation.—
321 (8) The court shall permanently revoke the commercial
322 driver license of a person who is convicted of, or has entered a
323 plea of guilty or nolo contendere to, regardless of whether
324 adjudication is withheld, any felony involving human trafficking
325 under state or federal law which involves the use of a
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326 commercial motor vehicle. If the court has not permanently
327 revoked such driver license or driving privilege within 30 days
328 after imposing a sentence, the department must permanently
329 revoke the driver license or driving privilege pursuant to this
330 section.
331 Section 11. Section 322.61, Florida Statutes, is amended
332 to read:
333 322.61 Disqualification from operating a commercial motor
334 vehicle.—
335 (1) A person who, for offenses occurring within a 3-year
336 period, is convicted of two of the following serious traffic
337 violations or any combination thereof, arising in separate
338 incidents committed in a commercial motor vehicle shall, in
339 addition to any other applicable penalties, be disqualified from
340 operating a commercial motor vehicle for a period of 60 days. A
341 holder of a commercial driver license or commercial learner's
342 permit who, for offenses occurring within a 3-year period, is
343 convicted of two of the following serious traffic violations, or
344 any combination thereof, arising in separate incidents committed
345 in a noncommercial motor vehicle shall, in addition to any other
346 applicable penalties, be disqualified from operating a
347 commercial motor vehicle for a period of 60 days if such
348 convictions result in the suspension, revocation, or
349 cancellation of the licenseholder's driving privilege:
350 (a) A violation of any state or local law relating to
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351 motor vehicle traffic control, other than a parking violation,
352 arising in connection with a crash resulting in death;
353 (b) Reckless driving, as defined in s. 316.192;
354 (c) Unlawful speed of 15 miles per hour or more above the
355 posted speed limit;
356 (d) Improper lane change, as defined in s. 316.085;
357 (e) Following too closely, as defined in s. 316.0895;
358 (f) Driving a commercial vehicle without obtaining a
359 commercial driver license;
360 (g) Driving a commercial vehicle without the proper class
361 of commercial driver license or commercial learner's permit or
362 without the proper endorsement; or
363 (h) Driving a commercial vehicle without a commercial
364 driver license or commercial learner's permit in possession, as
365 required by s. 322.03;.
366 (i) Texting while driving; or
367 (j) Using a handheld mobile telephone while driving.
368 (2)(a) Any person who, for offenses occurring within a 3-
369 year period, is convicted of three serious traffic violations
370 specified in subsection (1) or any combination thereof, arising
371 in separate incidents committed in a commercial motor vehicle
372 shall, in addition to any other applicable penalties, including
373 but not limited to the penalty provided in subsection (1), be
374 disqualified from operating a commercial motor vehicle for a
375 period of 120 days.
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376 (b) A holder of a commercial driver license or commercial
377 learner's permit who, for offenses occurring within a 3-year
378 period, is convicted of three serious traffic violations
379 specified in subsection (1) or any combination thereof arising
380 in separate incidents committed in a noncommercial motor vehicle
381 shall, in addition to any other applicable penalties, including,
382 but not limited to, the penalty provided in subsection (1), be
383 disqualified from operating a commercial motor vehicle for a
384 period of 120 days if such convictions result in the suspension,
385 revocation, or cancellation of the licenseholder's driving
386 privilege.
387 (3)(a) Except as provided in subsection (4), any person
388 who is convicted of one of the offenses listed in paragraph (b)
389 while operating a commercial motor vehicle shall, in addition to
390 any other applicable penalties, be disqualified from operating a
391 commercial motor vehicle for a period of 1 year.
392 (b) Except as provided in subsection (4), any holder of a
393 commercial driver license or commercial learner's permit who is
394 convicted of one of the offenses listed in this paragraph while
395 operating a noncommercial motor vehicle shall, in addition to
396 any other applicable penalties, be disqualified from operating a
397 commercial motor vehicle for a period of 1 year:
398 1. Driving a motor vehicle while he or she is under the
399 influence of alcohol or a controlled substance;
400 2. Driving a commercial motor vehicle while the alcohol
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401 concentration of his or her blood, breath, or urine is .04
402 percent or higher;
403 3. Leaving the scene of a crash involving a motor vehicle
404 driven by such person;
405 4. Using a motor vehicle in the commission of a felony;
406 5. Refusing to submit to a test to determine his or her
407 alcohol concentration while driving a motor vehicle;
408 6. Driving a commercial motor vehicle when, as a result of
409 prior violations committed operating a commercial motor vehicle,
410 his or her commercial driver license or commercial learner's
411 permit is revoked, suspended, or canceled, or he or she is
412 disqualified from operating a commercial motor vehicle; or
413 7. Causing a fatality through the negligent operation of a
414 commercial motor vehicle.
415 (4) Any person who is transporting hazardous materials as
416 defined in s. 322.01(24) shall, upon conviction of an offense
417 specified in subsection (3), be disqualified from operating a
418 commercial motor vehicle for a period of 3 years. The penalty
419 provided in this subsection shall be in addition to any other
420 applicable penalty.
421 (5) A person who is convicted of two violations specified
422 in subsection (3) which were committed while operating a
423 commercial motor vehicle, or any combination thereof, arising in
424 separate incidents shall be permanently disqualified from
425 operating a commercial motor vehicle. A holder of a commercial
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426 driver license or commercial learner's permit who is convicted
427 of two violations specified in subsection (3) which were
428 committed while operating any motor vehicle arising in separate
429 incidents shall be permanently disqualified from operating a
430 commercial motor vehicle. The penalty provided in this
431 subsection is in addition to any other applicable penalty.
432 (6) Notwithstanding subsections (3), (4), and (5), any
433 person who uses a commercial motor vehicle in the commission of
434 any felony involving the manufacture, distribution, or
435 dispensing of a controlled substance, including possession with
436 intent to manufacture, distribute, or dispense a controlled
437 substance, shall, upon conviction of such felony, be permanently
438 disqualified from operating a commercial motor vehicle.
439 Notwithstanding subsections (3), (4), and (5), any holder of a
440 commercial driver license or commercial learner's permit who
441 uses a noncommercial motor vehicle in the commission of any
442 felony involving the manufacture, distribution, or dispensing of
443 a controlled substance, including possession with intent to
444 manufacture, distribute, or dispense a controlled substance,
445 shall, upon conviction of such felony, be permanently
446 disqualified from operating a commercial motor vehicle. The
447 penalty provided in this subsection is in addition to any other
448 applicable penalty.
449 (7) Any person who uses a commercial motor vehicle in the
450 commission of any felony involving human trafficking under state
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451 or federal law shall, upon conviction of, or plea of guilty or
452 nolo contendere to, regardless of whether adjudication is
453 withheld, such felony, be permanently disqualified from
454 operating a commercial motor vehicle. The penalty provided in
455 this subsection is in addition to any other applicable penalty.
456 (8)(7) A person whose privilege to operate a commercial
457 motor vehicle is disqualified under this section may, if
458 otherwise qualified, be issued a Class E driver license,
459 pursuant to s. 322.251.
460 (9)(8) A driver who is convicted of or otherwise found to
461 have committed a violation of an out-of-service order while
462 driving a commercial motor vehicle is disqualified as follows:
463 (a) At least 180 days but not more than 1 year if the
464 driver is convicted of or otherwise found to have committed a
465 first violation of an out-of-service order.
466 (b) At least 2 years but not more than 5 years if, for
467 offenses occurring during any 10-year period, the driver is
468 convicted of or otherwise found to have committed two violations
469 of out-of-service orders in separate incidents.
470 (c) At least 3 years but not more than 5 years if, for
471 offenses occurring during any 10-year period, the driver is
472 convicted of or otherwise found to have committed three or more
473 violations of out-of-service orders in separate incidents.
474 (d) At least 180 days but not more than 2 years if the
475 driver is convicted of or otherwise found to have committed a
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476 first violation of an out-of-service order while transporting
477 hazardous materials required to be placarded under the Hazardous
478 Materials Transportation Act, 49 U.S.C. ss. 5101 et seq., or
479 while operating motor vehicles designed to transport more than
480 15 passengers, including the driver. A driver is disqualified
481 for a period of at least 3 years but not more than 5 years if,
482 for offenses occurring during any 10-year period, the driver is
483 convicted of or otherwise found to have committed any subsequent
484 violations of out-of-service orders, in separate incidents,
485 while transporting hazardous materials required to be placarded
486 under the Hazardous Materials Transportation Act, 49 U.S.C. ss.
487 5101 et seq., or while operating motor vehicles designed to
488 transport more than 15 passengers, including the driver.
489 (10)(9) A driver who is convicted of or otherwise found to
490 have committed an offense of operating a commercial motor
491 vehicle in violation of federal, state, or local law or
492 regulation pertaining to one of the following six offenses at a
493 railroad-highway grade crossing must be disqualified for the
494 period of time specified in subsection (11) (10):
495 (a) For drivers who are not always required to stop,
496 failing to slow down and check that the tracks are clear of
497 approaching trains.
498 (b) For drivers who are not always required to stop,
499 failing to stop before reaching the crossing if the tracks are
500 not clear.
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501 (c) For drivers who are always required to stop, failing
502 to stop before driving onto the crossing.
503 (d) For all drivers, failing to have sufficient space to
504 drive completely through the crossing without stopping.
505 (e) For all drivers, failing to obey a traffic control
506 device or all directions of an enforcement official at the
507 crossing.
508 (f) For all drivers, failing to negotiate a crossing
509 because of insufficient undercarriage clearance.
510 (11)(a)(10)(a) A driver must be disqualified for at least
511 60 days if the driver is convicted of or otherwise found to have
512 committed a first violation of a railroad-highway grade crossing
513 violation.
514 (b) A driver must be disqualified for at least 120 days
515 if, for offenses occurring during any 3-year period, the driver
516 is convicted of or otherwise found to have committed a second
517 railroad-highway grade crossing violation in separate incidents.
518 (c) A driver must be disqualified for at least 1 year if,
519 for offenses occurring during any 3-year period, the driver is
520 convicted of or otherwise found to have committed a third or
521 subsequent railroad-highway grade crossing violation in separate
522 incidents.
523 Section 12. Section 319.1414, Florida Statutes, is created
524 to read:
525 319.1414 Investigations; examinations; subpoenas;
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526 hearings; witnesses.—
527 (1) The department may conduct investigations and
528 examinations of department-authorized private rebuilt inspection
529 providers as it deems necessary to determine whether a person is
530 violating or has violated this chapter or a contract entered
531 into pursuant to this chapter or to assist with the enforcement
532 of this chapter.
533 (2) For purposes of any investigation or examination
534 conducted pursuant to this section, the department may exercise
535 the power of subpoena and the powers to administer oaths or
536 affirmations, to examine witnesses, to require affidavits, to
537 take depositions, and to compel the attendance of witnesses and
538 the production of books, papers, documents, records, and other
539 evidence. A designated agent of the department may serve a
540 subpoena relating to an investigation or examination.
541 (3) If a person refuses to testify; produce books, papers,
542 documents, or records; or otherwise obey a subpoena or subpoena
543 duces tecum issued under subsection (2), the department may
544 petition a court of competent jurisdiction in the county where
545 the person's residence or principal place of business is
546 located, upon which the court must issue an order requiring such
547 person to obey the subpoena or show cause for failing to obey
548 the subpoena. Unless the person shows sufficient cause for
549 failing to obey the subpoena, the court shall direct the person
550 to obey the subpoena. Failure to comply with such order is
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551 contempt of court.
552 (4) For the purpose of any investigation, examination, or
553 proceeding initiated by the department under this chapter, the
554 department may designate agents to serve subpoenas and other
555 process and to administer oaths or affirmations.
556 (5) Witnesses subpoenaed under this section are entitled
557 to witness fees at the same rate established by s. 92.142 for
558 witnesses in a civil case, except that witness fees are not
559 payable for appearance at the witness's place of business during
560 regular business hours or at the witness's residence.
561 (6) The department may adopt rules to administer this
562 section.
563 Section 13. Section 319.25, Florida Statutes, is amended
564 to read:
565 319.25 Cancellation of certificates; investigations;
566 subpoenas and other process; oaths; rules.—
567 (1) If it appears that a certificate of title has been
568 improperly issued, the department shall cancel the certificate.
569 Upon cancellation of any certificate of title, the department
570 shall notify the person to whom the certificate of title was
571 issued, as well as any lienholders appearing thereon, of the
572 cancellation and shall demand the surrender of the certificate
573 of title, but the cancellation shall not affect the validity of
574 any lien noted thereon. The holder of the certificate of title
575 shall return it to the department forthwith. If a certificate of
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576 registration has been issued to the holder of a certificate of
577 title so canceled, the department shall immediately cancel the
578 certificate of registration and demand the return of such
579 certificate of registration and license plate or mobile home
580 sticker; and the holder of such certificate of registration and
581 license plate or sticker shall return them to the department
582 forthwith.
583 (2) The department is authorized, upon application of any
584 person and payment of the proper fees, to prepare and furnish
585 lists containing title information in such form as the
586 department may authorize, to search the records of the
587 department and make reports thereof, and to make photographic
588 copies of the department records and attestations thereof,
589 except as provided in chapter 119.
590 (3) The department may conduct investigations and
591 examinations of any person suspected of violating or of having
592 violated this chapter or any rule adopted or order issued under
593 this chapter.
594 (4) For purposes of any investigation or examination
595 conducted pursuant to this section, the department may exercise
596 the power of subpoena and the powers to administer oaths or
597 affirmations, to examine witnesses, to require affidavits, to
598 take depositions, and to compel the attendance of witnesses and
599 the production of books, papers, documents, records, and other
600 evidence. An authorized representative of the department may
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601 serve a subpoena relating to an investigation or examination.
602 (5) If a person refuses to testify; produce books, papers,
603 documents, or records; or otherwise obey the subpoena or
604 subpoena duces tecum issued under subsection (4), the department
605 may petition a court of competent jurisdiction in the county
606 where the person's residence or principal place of business is
607 located, upon which the court must issue an order requiring such
608 person to obey the subpoena or show cause for failing to obey
609 the subpoena. Unless the person shows sufficient cause for
610 failing to obey the subpoena, the court must direct the person
611 to obey the subpoena. Failure to comply with such order is
612 contempt of court.
613 (6) For the purpose of any investigation, examination, or
614 proceeding initiated by the department under this chapter, the
615 department may designate agents to serve subpoenas and other
616 process and to administer oaths or affirmations.
617 (7) Witnesses subpoenaed under this section are entitled
618 to witness fees at the same rate established by s. 92.142 for
619 witnesses in a civil case, except that witness fees are not
620 payable for appearance at the witness's place of business during
621 regular business hours or at the witness's residence.
622 (8) The department may adopt rules to administer this
623 section.
624 Section 14. Section 320.861, Florida Statutes, is amended
625 to read:
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626 320.861 Investigations; subpoenas and other process;
627 oaths; rules Inspection of records; production of evidence;
628 subpoena power.—
629 (1) The department may conduct investigations and
630 examinations of any person suspected of violating or of having
631 violated this chapter or any rule adopted or order issued under
632 this chapter inspect the pertinent books, records, letters, and
633 contracts of any licensee, whether dealer or manufacturer,
634 relating to any written complaint made to it against such
635 licensee.
636 (2) For purposes of any investigation or examination
637 conducted pursuant to this section, the department may is
638 granted and authorized to exercise the power of subpoena and the
639 powers to administer oaths or affirmations, to examine
640 witnesses, to require affidavits, to take depositions, and to
641 compel the attendance of witnesses and the production of books,
642 papers, documents, records, and other evidence. A designated
643 agent of the department may serve a subpoena relating to an
644 investigation or examination for the attendance of witnesses and
645 the production of any documentary evidence necessary to the
646 disposition by it of any written complaint against any licensee,
647 whether dealer or manufacturer.
648 (3) If a person refuses to testify; to produce books,
649 papers, documents, or records; or to otherwise obey the subpoena
650 or subpoena duces tecum issued under subsection (2), the
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651 department may petition a court of competent jurisdiction in the
652 county where the person's residence or principal place of
653 business is located, upon which the court must issue an order
654 requiring such person to obey the subpoena or show cause for
655 failing to obey the subpoena. Unless the person shows sufficient
656 cause for failing to obey the subpoena, the court must direct
657 the person to obey the subpoena. Failure to comply with such
658 order constitutes contempt of court.
659 (4) For the purpose of any investigation, examination, or
660 proceeding initiated by the department under this chapter, the
661 department may designate agents to serve subpoenas and other
662 process and to administer oaths or affirmations. The department
663 shall exercise this power on its own initiative in accordance
664 with ss. 320.615 and 320.71.
665 (5) Witnesses subpoenaed under this section are entitled
666 to witness fees at the same rate established by s. 92.142 for
667 witnesses in a civil case, except that witness fees are not
668 payable for appearance at the witness's place of business during
669 regular business hours or at the witness's residence.
670 (6) The department may adopt rules to administer this
671 section.
672 Section 15. Section 322.71, Florida Statutes, is created
673 to read:
674 322.71 Investigations; subpoenas and other process; oaths;
675 rules.—
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676 (1) The department may conduct investigations and
677 examinations of any person suspected of violating or of having
678 violated any provision of this chapter or any rule adopted or
679 order issued under this chapter.
680 (2) For purposes of any investigation or examination
681 conducted pursuant to this section, the department may exercise
682 the power of subpoena and the powers to administer oaths or
683 affirmations, to examine witnesses, to require affidavits, to
684 take depositions, and to compel the attendance of witnesses and
685 the production of books, papers, documents, records, and other
686 evidence. Such subpoenas may be served by an authorized
687 representative of the department.
688 (3) If a person refuses to testify; to produce books,
689 papers, documents, or records; or to otherwise obey the subpoena
690 or subpoena duces tecum issued under subsection (2), the
691 department may petition a court of competent jurisdiction in the
692 county where the person's residence or principal place of
693 business is located, upon which the court must issue an order
694 requiring such person to obey the subpoena or show cause for
695 failing to obey the subpoena. Unless the person shows sufficient
696 cause for failing to obey the subpoena, the court must direct
697 the person to obey the subpoena. Failure to comply with such
698 order constitutes contempt of court.
699 (4) For the purpose of any investigation, examination, or
700 proceeding initiated by the department under this chapter, the
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701 department may designate agents to serve subpoenas and other
702 process and to administer oaths or affirmations.
703 (5) Witnesses subpoenaed under this section are entitled
704 to witness fees at the same rate established by s. 92.142 for
705 witnesses in a civil case, except that witness fees are not
706 payable for appearance at the witness's place of business during
707 regular business hours or at the witness's residence.
708 (6) The department may adopt rules to administer this
709 section.
710 Section 16. Subsection (2) of section 322.34, Florida
711 Statutes, is amended to read:
712 322.34 Driving while license suspended, revoked, canceled,
713 or disqualified.—
714 (2) Any person whose driver license or driving privilege
715 has been canceled, suspended, or revoked as provided by law, or
716 who does not have a driver license or driving privilege but is
717 under suspension or revocation equivalent status as defined in
718 s. 322.01(42) s. 322.01(41), except persons defined in s.
719 322.264, who, knowing of such cancellation, suspension,
720 revocation, or suspension or revocation equivalent status,
721 drives any motor vehicle upon the highways of this state while
722 such license or privilege is canceled, suspended, or revoked, or
723 while under suspension or revocation equivalent status, commits:
724 (a) A misdemeanor of the second degree, punishable as
725 provided in s. 775.082 or s. 775.083.
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726 (b)1. A misdemeanor of the first degree, punishable as
727 provided in s. 775.082 or s. 775.083, upon a second or
728 subsequent conviction, except as provided in paragraph (c).
729 2. A person convicted of a third or subsequent conviction,
730 except as provided in paragraph (c), must serve a minimum of 10
731 days in jail.
732 (c) A felony of the third degree, punishable as provided
733 in s. 775.082, s. 775.083, or s. 775.084, upon a third or
734 subsequent conviction if the current violation of this section
735 or the most recent prior violation of the section is related to
736 driving while license canceled, suspended, revoked, or
737 suspension or revocation equivalent status resulting from a
738 violation of:
739 1. Driving under the influence;
740 2. Refusal to submit to a urine, breath-alcohol, or blood
741 alcohol test;
742 3. A traffic offense causing death or serious bodily
743 injury; or
744 4. Fleeing or eluding.
745
746 The element of knowledge is satisfied if the person has been
747 previously cited as provided in subsection (1); or the person
748 admits to knowledge of the cancellation, suspension, or
749 revocation, or suspension or revocation equivalent status; or
750 the person received notice as provided in subsection (4). There
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751 shall be a rebuttable presumption that the knowledge requirement
752 is satisfied if a judgment or order as provided in subsection
753 (4) appears in the department's records for any case except for
754 one involving a suspension by the department for failure to pay
755 a traffic fine or for a financial responsibility violation.
756 Section 17. This act shall take effect July 1, 2021.
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HB 1359
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 1359 Pub. Rec./Department of Highway Safety and Motor Vehicles
SPONSOR(S): Brannan
TIED BILLS: CS/HB 1151 IDEN./SIM. BILLS: CS/SB 1502
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Tourism, Infrastructure & Energy Subcommittee 15 Y, 0 N Johnson Keating
2) Government Operations Subcommittee 17 Y, 0 N Roth Smith
3) Commerce Committee Johnson Hamon
SUMMARY ANALYSIS
CS/HB 1151, to which this bill is linked, provides the Department of Highway Safety and Motor Vehicles
(DHSMV) with investigative and subpoena power and the ability to administer oaths or affirmations, examine
witnesses, require affidavits, take depositions, and compel the attendance of witnesses and the production of
documents, records, and other evidence for use in conducting investigations or examinations.
This bill, which is linked to the passage of HB 1151, creates four public records exemptions, each making
confidential and exempt from public disclosure information received by DHSMV as part of its investigations or
examinations of:
Suspected violations by private rebuilt inspection providers, or any contract entered into thereunder by
such a provider;
Suspected violations of ch. 319, F.S., relating to motor vehicle titles, or any rule or order thereunder;
Suspected violations of ch. 320, F.S., relating to motor vehicle registrations and motor vehicle dealer
and manufacturer licensing, or any rule or order thereunder; and
Suspected violations of ch. 322, F.S., relating to driver licenses and identification cards, or any rule or
order thereunder.
The above exemptions shield investigative records until the investigation ceases to be active or administrative
action taken by DHSMV has concluded or been made part of any hearing or court proceeding, after which the
investigative records are no longer confidential and exempt.
The bill provides that the public record exemption is subject to the Open Government Sunset Review Act and
will repeal on October 2, 2026, unless the Legislature reviews and reenacts the exemption by that date. The
bill provides a statement of public necessity as required by the Florida Constitution.
The bill may have a minimal fiscal impact on state government.
The bill is effective upon the same date that CS/HB 1151 or similar legislation takes effect, if such legislation is
adopted in the same legislative session or extension thereof and becomes a law.
Article I, section 24(c) of the Florida Constitution requires a two-thirds vote of the members present
and voting for final passage of a newly created or expanded public record or public meeting
exemption. The bill creates new public record exemptions; thus, it requires a two-thirds vote for final
passage.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Public Records
Article I, section 24(a) of the Florida Constitution sets forth the state’s public policy regarding access to
government records. This section guarantees every person a right to inspect or copy any public record
of the legislative, executive, and judicial branches of government. The Legislature, however, may
provide by general law for the exemption of records from the requirements of article I, section 24(a) of
the Florida Constitution.1 The general law must state with specificity the public necessity justifying the
exemption2 and must be no broader than necessary to accomplish its purpose.3
Public policy regarding access to government records is addressed further in s. 119.07(1)(a), F.S.,
which guarantees every person a right to inspect and copy any state, county, or municipal record,
unless the record is exempt. Furthermore, the Open Government Sunset Review Act 4 provides that a
public record or public meeting exemption may be created or maintained only if it serves an identifiable
public purpose. In addition, it may be no broader than necessary to meet one of the following purposes:
Allow the state or its political subdivisions to effectively and efficiently administer a
governmental program, which administration would be significantly impaired without the
exemption.
Protect sensitive personal information that, if released, would be defamatory or would
jeopardize an individual’s safety; however, only the identity of an individual may be exempted
under this provision.
Protect trade or business secrets.5
The Open Government Sunset Review Act requires the automatic repeal of a newly created public
record exemption on October 2nd of the fifth year after creation or substantial amendment, unless the
Legislature reenacts the exemption.6
DHSMV Investigative Authority
DHSMV has jurisdiction to administer multiple chapters of the Florida Statutes with various degrees of
investigative authority. For example, DHSMV is required to cancel improperly issued certificates of
title,7 but does not appear to have the authority to investigate and examine violations related to motor
vehicle titles.
While DHSMV has the authority to inspect books and records of motor vehicle manufacturers and
dealers,8 it does not appear to have the authority to investigate other violations of ch. 320, F.S., relating
to motor vehicle dealers.
DHSMV also does not appear to have statutory authority to investigate persons suspected of violating
ch. 322, F.S., relating to driver licenses.
CS/HB 1151, to which this bill is linked, provides DHSMV with investigative and subpoena power and
the ability to administer oaths or affirmations, examine witnesses, require affidavits, take depositions,
1
Art. I, s. 24(c), FLA. CONST.
2
This portion of a public record exemption is commonly referred to as a “public necessity statement.”
3
Art. I. s. 24(c), FLA. CONST.
4
S. 119.15, F.S.
5
S. 119.15(6)(b), F.S.
6
S. 119.15(3), F.S.
7
S. 319.25(1), F.S.
8
S. 320.861, F.S.
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and compel the attendance of witnesses and the production of documents, records, and other evidence
for use in conducting investigations or examinations into:
Authorized private rebuilt inspection providers;
Persons suspected of violating or of having violated ch. 319, F.S., relating to motor vehicle title
certificates;
Persons suspected of violating or of having violated ch. 320, F.S., relating to motor vehicles
manufacturers and distributors; and
Persons suspected of violating or of having violated ch. 322, F.S., relating to driver licenses.
Effect of the Bill
The bill creates public record exemptions for investigatory and examination information received by
DHSMV as a result of an investigation or examination of:
Suspected violations by private rebuilt inspection providers, or any contract entered into
thereunder by such a provider;
Suspected violations of ch. 319, F.S., relating to motor vehicle titles, or any rule or order
thereunder;
Suspected violations of ch. 320, F.S., relating to motor vehicle registrations and motor vehicle
dealer and manufacturer licensing, or any rule or order thereunder; and
Suspected violations of ch. 322, F.S., relating to driver licenses and identification cards, or any
rule or order thereunder.
The bill provides that the investigatory and examination information is confidential and exempt9 from
public record requirements until the investigation or examination ceases to be active or administrative
action taken by DHSMV has concluded or been made part of any hearing or court proceeding.
The bill authorizes DHSMV to release investigative records in furtherance of DHSMV’s official duties
and responsibilities or, if released to another governmental agency, in furtherance of that agency’s
official duties and responsibilities.
The bill contains a statement of public necessity, as required by article I, section 24(c) of the Florida
Constitution. The public necessity statement provides that the release of information received by
DHSMV as a result of an investigation or examination of certain violations could obstruct or jeopardize
the integrity of the investigation or examination and impair the ability of DHSMV to perform its official
duties and carry out its responsibilities under these statutory provisions, thus it is a public necessity to
make such information confidential and exempt from public records requirements.
The bill provides that the public record exemptions are subject to the Open Government Sunset Review
Act and will repeal on October 2, 2026, unless the Legislature reviews and reenacts the exemptions by
that date.
The bill provides that it will become effective upon the same date that CS/HB 1151 or similar legislation
takes effect, if such legislation is adopted in the same legislative session or extension thereof and
becomes a law.
B. SECTION DIRECTORY:
Section 1 Amends s. 319.1414, F.S., relating to investigations; subpoenas and other process; oaths;
rules.
9
There is a difference between records the Legislature designates exempt from public record requirements and those the Legislature
deems confidential and exempt. A record classified as exempt from public disclosure may be disclosed under certain circumstances.
See WFTV, Inc. v. Sch. Bd. of Seminole, 874 So.2d 48, 53 (Fla. 5th DCA 2004), review denied 892 So.2d 1015 (Fla. 2004); City of
Rivera Beach v. Barfield, 642 So.2d 1135 (Fla. 4th DCA 1994); Williams v. City of Minneola, 575 So.2d 683, 687 (Fla. 5th DCA
1991). If the Legislature designates a record as confidential and exempt from public disclosure, such record may not be released by the
custodian of public records, to anyone other than the persons or entities specifically designated in statute. See Op. Att’y Gen. Fla. 85-
62 (1985).
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Section 2 Amends s. 319.25, F.S., relating to cancellation of certificates; investigations; subpoenas
and other process; oaths; rules.
Section 3 Amends s. 320.861, F.S., relating to investigations, subpoenas and other process; oaths;
rules.
Section 4 Amends s. 322.71, F.S., relating to investigations; subpoenas and other process; oaths;
rules.
Section 5 Provides a statement of public necessity.
Section 6 Provides a contingent effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
The bill may have an insignificant fiscal impact on DHSMV to comply with public records requests
and redact exempt information prior to releasing a record. Such costs, however, would be absorbed
as part of the day-to-day responsibilities of the agency.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to impact county or municipal governments.
2. Other:
Vote Requirement
Article I, section 24(c) of the Florida Constitution requires a two-thirds vote of the members present
and voting for final passage of a newly created or expanded public record or public meeting
exemption. The bill creates new public record exemptions; thus, it requires a two-thirds vote for final
passage.
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Public Necessity Statement
Article I, section 24(c) of the Florida Constitution requires a public necessity statement for a newly
created or expanded public record or public meeting exemption. The bill creates new public record
exemptions and includes the required public necessity statement.
Breadth of Exemption
Article 1, section 24(c) of the Florida Constitution requires a newly created or expanded public record
or public meeting exemption to be no broader than necessary to accomplish the stated purpose of
the law. The bill creates public record exemptions for certain investigative or examination
information, which does not appear to be broader than necessary to accomplish its purpose.
B. RULE-MAKING AUTHORITY:
The bill does not provide a grant of rulemaking authority, nor does it require rulemaking.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
None.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 1359 2021
1 A bill to be entitled
2 An act relating to public records; amending ss.
3 319.1414, 319.25, 320.861, and 322.71, F.S.; providing
4 an exemption from public records requirements for
5 information received by the Department of Highway
6 Safety and Motor Vehicles as a result of an
7 investigation or examination conducted pursuant to
8 certain provisions; authorizing the department to
9 release such information under certain circumstances;
10 providing for future legislative review and repeal of
11 the exemption; providing a statement of public
12 necessity; providing a contingent effective date.
13
14 Be It Enacted by the Legislature of the State of Florida:
15
16 Section 1. Subsection (6) of section 319.1414, Florida
17 Statutes, as created by CS/HB 1151, 2021 Regular Session, is
18 renumbered as subsection (7), and a new subsection (6) is added
19 to that section to read:
20 319.1414 Investigations; subpoenas and other process;
21 oaths; rules.—
22 (6) Information received by the department as a result of
23 an investigation or examination conducted pursuant to this
24 section is confidential and exempt from s. 119.07(1) and s.
25 24(a), Art. I of the State Constitution until the investigation
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26 or examination ceases to be active or administrative action
27 taken by the department has concluded or been made part of a
28 hearing or court proceeding. The department may release
29 information that is made confidential and exempt under this
30 subsection in furtherance of its official duties and
31 responsibilities or, if released to another governmental agency,
32 in the furtherance of that agency's official duties and
33 responsibilities. This subsection is subject to the Open
34 Government Sunset Review Act in accordance with s. 119.15 and
35 shall stand repealed on October 2, 2026, unless reviewed and
36 saved from repeal through reenactment by the Legislature.
37 Section 2. Subsection (8) of section 319.25, Florida
38 Statutes, as created by CS/HB 1151, 2021 Regular Session, is
39 renumbered as subsection (9), and a new subsection (8) is added
40 to that section to read:
41 319.25 Cancellation of certificates; investigations;
42 subpoenas and other process; oaths; rules.—
43 (8) Information received by the department as a result of
44 an investigation or examination conducted pursuant to this
45 section is confidential and exempt from s. 119.07(1) and s.
46 24(a), Art. I of the State Constitution until the investigation
47 or examination ceases to be active or administrative action
48 taken by the department has concluded or been made part of a
49 hearing or court proceeding. The department may release
50 information that is made confidential and exempt under this
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51 subsection in furtherance of its official duties and
52 responsibilities or, if released to another governmental agency,
53 in the furtherance of that agency's official duties and
54 responsibilities. This subsection is subject to the Open
55 Government Sunset Review Act in accordance with s. 119.15 and
56 shall stand repealed on October 2, 2026, unless reviewed and
57 saved from repeal through reenactment by the Legislature.
58 Section 3. Subsection (6) of section 320.861, Florida
59 Statutes, as created by CS/HB 1151, 2021 Regular Session, is
60 renumbered as subsection (7), and a new subsection (6) is added
61 to that section to read:
62 320.861 Investigations; subpoenas and other process;
63 oaths; rules.—
64 (6) Information received by the department as a result of
65 an investigation or examination conducted pursuant to this
66 section is confidential and exempt from s. 119.07(1) and s.
67 24(a), Art. I of the State Constitution until the investigation
68 or examination ceases to be active or administrative action
69 taken by the department has concluded or been made part of a
70 hearing or court proceeding. The department may release
71 information that is made confidential and exempt under this
72 subsection in furtherance of its official duties and
73 responsibilities or, if released to another governmental agency,
74 in the furtherance of that agency's official duties and
75 responsibilities. This subsection is subject to the Open
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HB 1359 2021
76 Government Sunset Review Act in accordance with s. 119.15 and
77 shall stand repealed on October 2, 2026, unless reviewed and
78 saved from repeal through reenactment by the Legislature.
79 Section 4. Subsection (6) of section 322.71, Florida
80 Statutes, as created by CS/HB 1151, 2021 Regular Session, is
81 renumbered as subsection (7), and a new subsection (6) is added
82 to that section to read:
83 322.71 Investigations; subpoenas and other process; oaths;
84 rules.—
85 (6) Information received by the department as a result of
86 an investigation or examination conducted pursuant to this
87 section is confidential and exempt from s. 119.07(1) and s.
88 24(a), Art. I of the State Constitution until the investigation
89 or examination ceases to be active or administrative action
90 taken by the department has concluded or been made part of a
91 hearing or court proceeding. The department may release
92 information that is made confidential and exempt under this
93 subsection in furtherance of its official duties and
94 responsibilities or, if released to another governmental agency,
95 in the furtherance of that agency's official duties and
96 responsibilities. This subsection is subject to the Open
97 Government Sunset Review Act in accordance with s. 119.15 and
98 shall stand repealed on October 2, 2026, unless reviewed and
99 saved from repeal through reenactment by the Legislature.
100 Section 5. The Legislature finds that it is a public
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101 necessity that information received by the Department of Highway
102 Safety and Motor Vehicles as a result of an investigation or
103 examination conducted pursuant to s. 319.1414, s. 319.25,
104 chapter 320 as provided in s. 320.861, and chapter 322 as
105 provided in s. 322.71, Florida Statutes, be made confidential
106 and exempt from s. 119.07(1), Florida Statutes, and s. 24(a),
107 Article I of the State Constitution until the investigation or
108 examination ceases to be active or administrative action taken
109 by the department has concluded or been made part of a hearing
110 or court proceeding. The release of such information about a
111 pending investigation or examination of violations of s.
112 319.1414, s. 319.25, chapter 320, and chapter 322, Florida
113 Statutes, could obstruct or jeopardize the integrity of the
114 investigation or examination and impair the ability of the
115 Department of Highway Safety and Motor Vehicles in the
116 performance of its official duties and responsibilities under s.
117 319.1414, s. 319.25, chapter 320, and chapter 322, Florida
118 Statutes. Therefore, the Legislature finds that it is a public
119 necessity to make such information confidential and exempt from
120 public records requirements.
121 Section 6. This act shall take effect on the same date
122 that CS/HB 1151 or similar legislation takes effect, if such
123 legislation is adopted in the same legislative session or an
124 extension thereof and becomes a law.
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hb1359-00
CS/HB 1431
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1431 Swimming Pool Specialty Contracting Services
SPONSOR(S): Regulatory Reform Subcommittee, McClure
TIED BILLS: IDEN./SIM. BILLS: SB 338
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform Subcommittee 13 Y, 0 N, As CS Brackett Anstead
2) Commerce Committee Brackett Hamon
SUMMARY ANALYSIS
Construction Contractors, including pool/spa contractors, are certified by or registered with the Construction
Industry Licensing Board (CILB) housed within the Department of Business and Professional Regulation.
Certified contractors can practice statewide and are licensed and regulated by the CILB. Registered
contractors are licensed and regulated by a local jurisdiction and may practice within that locality. Registered
contractors are required to register their license with the CILB.
Specialty contractors are contractors whose scope of work is limited to a particular phase of construction that is
a subset of a certified contractor’s scope of work, such as drywall or demolition. Specialty contractor licenses
are created by the CILB through rulemaking. Specialty contractors certified by the CILB are permitted to
practice in any jurisdiction in the state. The CILB has created eight types of pool/spa specialty contractors.
In order to perform contracting in the state, a person must be certified or registered (licensed) as a contractor,
be an employee of a licensed contractor, or fall under an exemption provided in current law.
The bill creates a new exemption to licensure requirements by allowing unlicensed persons to perform the
work of specialty contractors for the construction, remodeling, repair, or improvement of commercial or
residential swimming pools, interactive water features, hot tubs, and spas without obtaining a specialty
contractor license or local license.
The bill only allows the unlicensed person to perform the work if:
the unlicensed person is under the supervision of a licensed commercial or residential pool/spa
contractor or swimming pool/spa servicing contractor;
the work is within the scope of the supervising contractor’s license;
the supervising contractor is responsible for the work; and
the work does not require licensure as a roofing, sheet metal, air-conditioning, mechanical, plumbing,
solar, underground utility and excavation contractor, or electrical contractor.
The bill does not require a direct contract between the commercial or residential pool/spa contractor or
swimming pool/spa servicing contractor and the unlicensed person, or require the unlicensed person to be an
employee of the supervising pool/spa contractor.
The bill does not have a fiscal impact on state and local governments.
The bill provides for an effective date of July 1, 2021.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1431a.COM
DATE: 4/2/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Contractors
Contractors are regulated by ch. 489, F.S., which outlines the law pertaining to contractors in the state
of Florida. Part I of ch. 489, F.S., covers construction contracting regulated by the Construction Industry
Licensing Board (CILB) and pt. II of ch. 489, F.S., covers electrical/alarm system contracting regulated
by the Electrical Contractors’ Licensing Board. Both boards are housed in the Department of Business
and Professional Regulation (DBPR).
Construction contractors are either certified or registered by the CILB. The CILB consists of 18
members who are appointed by the Governor and confirmed by the Senate. The CILB meets to
approve or deny applications for licensure, review disciplinary cases, and conduct informal hearings
relating to discipline.1
"Certified contractors" are individuals who pass the state competency examination and obtain a
certificate of competency issued by DBPR. Certified contractors are able to obtain a certificate of
competency for a specific license category and are permitted to practice in that category in any
jurisdiction in the state.2
“Registered contractors” are individuals that have taken and passed a local competency examination
and can practice the specific category of contracting for which he or she is approved, only in the local
jurisdiction for which the license is issued. Registered contractors must register their license with the
CILB after obtaining a local license.3
In order to perform construction contracting in the state, a person must be certified or registered as a
contractor, be an employee4 of a certified or registered contractor, or fall under an exemption provided
in current law.5
Swimming Pool/Spa Contractors
“Commercial pool/spa contractors” are individuals who are certified or registered to construct, repair,
and service any public or private swimming pool, hot tub, or spa including:6
Installing, repairing, or replacing existing equipment;
Cleaning or equipment sanitizing that requires at least a partial disassembling, excluding filter
changes;
Installing new pool/spa equipment, interior finishes, package pool heaters, and perimeter piping
and filter piping;
Constructing equipment rooms or housing for pool/spa equipment; and
The scope of work of a swimming pool/spa servicing contractor.
“Residential pool/spa contractors” are individuals who are certified or registered to construct repair, and
service any residential swimming pool, hot tub, or spa. The scope of work is identical to the scope of
1
S. 489.107, F.S.
2
S. 489.105, F.S.
3
Ss. 489.105, and 489.117, F.S.
4
“Employee” means a person who receives compensation from and is under the supervision and control of an employer who regularly
deducts the F.I.C.A. and withholding tax and provides workers’ compensation, all as prescribed by law. S. 489.103(2)(b), F.S.
5
Ss. 489.103(2), and 489.113, F.S.
6
S. 489.105(3)(j), F.S.
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work for commercial pool/spa contractors; however, residential pool/spa contractors may only work on
residential swimming pools, hot tubs, and spas.7
“Swimming pool/spa servicing contractors” are individuals who are certified or registered to repair and
service any public or private swimming pool, hot tub, or spa including:8
Repairing or replacing existing equipment;
Cleaning or equipment sanitizing that requires at least a partial disassembling, excluding filter
changes;
Installing new pool/spa equipment and interior refinishing;
Reinstalling or adding pool heaters;
Repairing or replacing perimeter piping and filter piping;
Repairing equipment rooms or housing for pool/spa equipment; and
Substantially or completing draining a swimming pool, or hot tub or spa, for the purpose of
repair or renovation.
The scope of work for all three types of swimming pool/spa contractors does not include direct
connections to a sanitary sewer system or to potable water lines.9
Water treatment or cleaning a pool or spa does not require a license unless the structural integrity of
the pool or spa is affected, or equipment attached to the pool or spa must be substantially or completely
disassembled or replaced in order to treat the water or clean the pool. Installing an aboveground pool
also does not require a license.10
A contractor, including pool/spa contractors, must subcontract all electrical, mechanical, plumbing,
roofing, sheet metal, and air-conditioning work, to a contractor certified or registered in the respective
category, unless the pool/spa contractor also holds a state certificate or registration in the respective
category.11
In order to obtain certification as one of the swimming pool/spa contractors, a person must:12
Apply to DBPR in writing;
Be 18 years of age;
Be of good moral character;
Pass the examination for the certification sought; and
Have one of the following:
o A bachelor degree from a four year college in the appropriate field of engineering,
architecture, or building construction, and one year of proven experience;
o Four years of experience as a foreman or a skilled worker with at least one year as a
foreman;
o A combination of college and experience as a foreman or skilled worker that equals four
years with at least one of the years as a foreman; or
o One year of experience and 60 hours of instruction courses approved by the CILB;
however, this only applies to swimming pool/spa servicing contractors.
Swimming Pool/Spa Specialty Contractors
“Certified specialty contractors” are contractors whose scope of work is limited to a particular phase of
construction that is a subset of a certified contractor’s scope of work, such as a drywall specialty
7
S. 489.105(3)(k), F.S.
8
S. 489.105(3)(l), F.S.
9
S. 489.105, F.S.
10
Ss. 489.103(6), and 489.105, F.S.; DBPR, Trust but Verify,
http://www.myfloridalicense.com/dbpr/reg/documents/trustbutverify_000.pdf?x40199 (last visited Mar. 19, 2021).
11
S. 489.113(3), F.S.
12
Ss. 489.111, & 489.113, F.S.
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license or a demolition specialty license. Certified specialty contractor licenses are created by the CILB
through rulemaking. Certified specialty contractors are permitted to practice in any jurisdiction in the
state.13
The CILB has created eight types of pool/spa specialty contractor certifications. Pool/spa specialty
contractors, except residential swimming pool/spa servicing specialty contractors, must work under
contract with and under the supervision of a licensed swimming pool/spa contractor. However, they are
not required to be employees of a licensed pool/spa contractor.14
The CILB has created the following eight types of pool/spa specialty contractors:15
Swimming Pool Layout Specialty Contractor-
o The scope of work is limited to the layout, shaping, steel installation, and rough piping of
pools, spas, and hot tub shells.
Swimming Pool Structural Specialty Contractor-
o The scope of work is limited to the shaping and shooting of gunite, shotcrete, concrete,
or similar product mix used in the construction of swimming pools and spas, and the
installation of fiberglass shells and vinyl liners.
Swimming Pool Excavation Specialty Contractors –
o The scope of work is limited to the excavation and earthmoving for the installation of
pools, spas, and hot tub shells;
Swimming Pool Trim Specialty Contractor –
o The scope of work is limited to the installation of tile and coping for pools, spas, hot tub
shells, and decorative or interactive water displays;
Swimming Pool Decking Specialty Contractor-
o The scope of work is limited to the construction and installation of concrete flatwork,
pavers and bricks, retaining walls, and footings associated with the construction of
pools, spas, and hot tub shells.
Swimming Pool Piping Specialty Contractor-
o The scope of work is limited to the installation of piping or the installation of circulating,
filtering, disinfecting, controlling, or monitoring equipment and devices used in the
construction of pools, spas, hot tubs, and decorative or interactive water displays or
areas.
Swimming Pool Finishes Specialty Contractor-
o The scope of work is limited to the coating or plastering of the interior surfaces of pools,
spas, or hot tub shells.
Residential swimming pool/spa servicing specialty contractor-
o The scope of work is identical to the scope of work for swimming pool/spa servicing
contractors; however, they may only work on residential swimming pools, hot tubs, and
spas.
In order to obtain one of the certified specialty pool/spa contractor a person must:16
Submit a written application to the CILB;
Be at least 18 years of age;
Be of good moral character;
Pass a written examination for the specialty pool/spa contractor category sought; and
Demonstrate four years of experience in the specialty pool/spa contractor category sought, or
one year of experience and 60 hours of instruction courses approved by the CILB; however,
the one year of experience only applies to residential swimming pool/spa servicing contractors.
13
S. 489.105(3)(q), F.S.
14
Rule 61G4-15.032, F.A.C.; Rule 61G4-15.040, F.A.C.
15
Id.
16
Rule 61G4-15.032, F.A.C.; Email from Colton Madill, Deputy Legislative Affairs Director, DBPR, RE: Pool Contractor
Information, (Jan. 31, 2020).
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Exemptions from Licensure
An unlicensed person may perform work that falls under the scope of contracting if they fall under an
exemption provided in current law. Currently, there are 23 exemptions provided in current law,
including:17
a person performing contracting if it is casual, minor, or inconsequential in nature, and the
aggregate contract price for all labor and materials is less than $2,500, subject to certain
requirements. This is referred to as the handyman exemption;
an owner building or improving one or two-family residences, farm outbuildings, or improving
commercial buildings at a cost that does not exceed $75,000, subject to certain requirements;
an employee of an apartment community or apartment management company who makes
minor repairs to existing electric water heaters, electric heating, ventilating, and air-conditioning
systems subject to certain requirements;
a person who sells or installs any finished products, materials, or articles of merchandise that
are not fabricated into and do not become a permanent part of a structure such as awnings; and
An employee of the United States, the state, or any municipality, county, irrigation district,
reclamation district, or political subdivision, except school boards, state university boards of
trustees, and community college boards of trustee, subject to certain requirements.
Another exemption allows an unlicensed person to perform contracting if the person is under the
supervision of licensed general, building, or residential contractor, and the work does not require
licensure as a roofing, sheet metal, air-conditioning, mechanical, pool/spa, plumbing, solar, or
underground utility and excavation contractor.
The work must be within the scope of the supervising contractor’s license, and the supervising
contractor must also be responsible for the work. The unlicensed person must have a direct contract
with the contractor. However, this is an exemption from state licensure requirements and it does not
affect the ability of local governments to impose licensing requirements on unlicensed persons.18
Effect of the Bill
The bill creates an additional exemption to contractor licensure. The bill provides that unlicensed
persons may perform the work of specialty contractors for the construction, remodeling, repair, or
improvement of commercial or residential swimming pools, interactive water features,19 hot tubs, and
spas without obtaining a specialty contractor license or local license.
The bill only allows the unlicensed person to perform the work if:
the unlicensed person is under the supervision of a licensed commercial or residential pool/spa
contractor or swimming pool/spa servicing contractor;
the work is within the scope of the supervising contractor’s license;
the supervising contractor is responsible for the work; and
the work does not require licensure as a roofing, sheet metal, air-conditioning, mechanical,
plumbing, solar, underground utility and excavation contractor, or electrical contractor.
17
S. 489.103, F.S.
18
S. 489.113(2), F.S.; Florida Home Builders Association v. St. Johns County, 914 So. 2d 1035 (Fla. 5th DCA 2005).
19
The Florida Building Code defines “interactive water features” as structure designed to allow for recreational activities with
recirculated, filtered, and treated water; but having minimal standing water. Water from the interactive fountain type features is
collected by gravity below grade in a collector tank or sump. The water is filtered, disinfected and then pumped to the feature spray
discharge heads. The collector tank and water filtration features required make this structure a type of public swimming pool. Section
454 of the Seventh edition of the Florida Building Code (Building).
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The bill does not require a direct contract between the commercial or residential pool/spa contractor or
swimming pool/spa servicing contractor and the unlicensed person performing the specialty contracting
services, or require the unlicensed person to be an employee of the supervising pool/spa contractor.
B. SECTION DIRECTORY:
Section 1. Amends s. 489.117, F.S., creating an exemption to licensure requirements.
Section 2. Provides an effective date of July 1, 2021.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may have a positive impact on the private sector by allowing persons, who are under the
supervision of licensed pool/spa contractors, to perform work on pools, spas, hot tubs, and interactive
water features without having to obtain a license. This may also result in certain projects being
completed in less time and at a lower cost to consumers.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
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None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
No.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On March 24, 2021, the Regulatory Reform Subcommittee adopted a proposed committee substitute and
reported the bill favorably as a committee substitute. The PCS differed from HB 1431 in the following ways:
Removes the provision expanding a current exemption, which would allow an unlicensed person to
perform contracting for the construction, remodeling, repair, or improvement of clubhouses and
recreation buildings in certain circumstances.
Adds additional requirements for an unlicensed person to perform specialty contracting for the
construction, remodeling, repair, or improvement of commercial or residential swimming pools,
interactive water features, hot tubs, and spas. The additional requirements include:
o the supervising contractor is responsible for the work; and
o the work does not require licensure as an electrical contractor.
The staff analysis is drafted to the committee substitute as passed by the Regulatory Reform
Subcommittee.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 1431 2021
1 A bill to be entitled
2 An act relating to swimming pool specialty contracting
3 services; amending s. 489.117, F.S.; authorizing
4 certain persons under the supervision of specified
5 licensed contractors to perform certain specialty
6 contracting services for commercial or residential
7 swimming pools, interactive water features, hot tubs,
8 or spas; providing that such supervision does not
9 require a direct contract between those persons;
10 providing applicability; providing an effective date.
11
12 Be It Enacted by the Legislature of the State of Florida:
13
14 Section 1. Paragraph (e) is added to subsection (4) of
15 section 489.117, Florida Statutes, to read:
16 489.117 Registration; specialty contractors.—
17 (4)
18 (e) Any person who is not certified or registered may
19 perform the work of a specialty contractor, whose scope of
20 practice is limited to the type of work specified under s.
21 489.105(3)(j)-(l) for the construction, remodeling, repair, or
22 improvement of commercial or residential swimming pools,
23 interactive water features as defined in the Florida Building
24 Code, hot tubs, and spas, without obtaining a local license or
25 certification as a specialty contractor, provided such person is
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26 supervised by a contractor who is certified or registered under
27 s. 489.105(3)(j)-(l), the work is within the scope of the
28 supervising contractor's license, the supervising contractor is
29 responsible for the work, and the work does not require
30 certification or registration under s. 489.105(3)(d)-(i), (m)-
31 (o), or s. 489.505. Such supervision does not require a direct
32 contract between the contractor certified or registered under s.
33 489.105(3)(j)-(l) and the person performing the work, or for the
34 person performing the work to be an employee of the contractor
35 certified or registered under s. 489.105(3)(j)-(l). This
36 subsection does not limit the exemptions provided in s. 489.103.
37 Section 2. This act shall take effect July 1, 2021.
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hb1431-01-c1
HB 1539
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 1539 Pub. Rec./Department of Agriculture and Consumer Services
SPONSOR(S): Jenne
TIED BILLS: IDEN./SIM. BILLS: CS/SB 1594
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Government Operations Subcommittee 14 Y, 0 N Roth Smith
2) Commerce Committee Thompson Hamon
3) State Affairs Committee
SUMMARY ANALYSIS
The Department of Agriculture and Consumer Services (DACS) is tasked with safeguarding the public and
supporting Florida’s agricultural economy by ensuring the safety and wholesomeness of food and other
consumer products through inspection and testing programs. DACS employs inspectors to enforce the state
laws and rules.
The bill creates a public record exemption for the home address, telephone numbers, dates of birth, and
photographs of current or former DACS inspectors, as well as, the names, home address, telephone numbers,
dates of birth, and places of employment of their spouses, and children. Additionally, the bill exempts the
names and locations of schools and day care facilities attended by the children of current or former DACS
inspectors.
The bill provides that the exemption is subject to the Open Government Sunset Review Act and will repeal on
October 2, 2026, unless the Legislature reviews and reenacts the exemption by that date. The bill provides a
statement of public necessity as required by the Florida Constitution.
The bill does not appear to have a fiscal impact on the state or local governments.
Article I, s. 24(c) of the Florida Constitution requires a two-thirds vote of the members present and
voting for final passage of a newly created or expanded public record or public meeting exemption.
The bill creates a public record exemption; thus, it requires a two-thirds vote for final passage.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1539b.COM
DATE: 4/2/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Public Records
Article I, s. 24(a) of the Florida Constitution sets forth the state’s public policy regarding access to
government records. This section guarantees every person a right to inspect or copy any public record
of the legislative, executive, and judicial branches of government. The Legislature, however, may
provide by general law for the exemption of records from the requirements of article I, section 24(a) of
the Florida Constitution.1 The general law must state with specificity the public necessity justifying the
exemption2 and must be no more broad than necessary to accomplish its purpose.3
Public policy regarding access to government records is addressed further in s. 119.07(1)(a), F.S.,
which guarantees every person a right to inspect and copy any state, county, or municipal record.
Furthermore, the Open Government Sunset Review Act4 provides that a public record or public meeting
exemption may be created or maintained only if it serves an identifiable public purpose. In addition, it
may be no broader than is necessary to meet one of the following purposes:
Allow the state or its political subdivisions to effectively and efficiently administer a
governmental program, which administration would be significantly impaired without the
exemption.
Protect sensitive personal information that, if released, would be defamatory or would
jeopardize an individual’s safety; however, only the identity of an individual may be exempted
under this provision.
Protect trade or business secrets.5
The Open Government Sunset Review Act requires the automatic repeal of a newly created exemption
on October 2nd of the fifth year after creation or substantial amendment, unless the Legislature
reenacts the exemption.6
Department of Agriculture and Consumer Services
The Department of Agriculture and Consumer Services (DACS) is tasked with safeguarding the public
and supporting Florida’s agricultural economy by ensuring the safety and wholesomeness of food and
other consumer products through inspection and testing programs.7
DACS employs inspectors to enforce the state laws and rules relating to:
Fruit and vegetable inspection and grading;
Pesticide spray, residue inspection, and removal;
Registration, labeling, inspection, sale, use, composition, formulation, wholesale and retail
distribution, and analysis of commercial stock feeds and registration, labeling, inspection, and
analysis of commercial fertilizers;
Classification, inspection, and sale of poultry and eggs;
Registration, inspection, and analysis of gasolines and oils;
Registration, labeling, inspection, and analysis of pesticides;
Registration, labeling, inspection, germination testing, and sale of seeds, both common and
certified;
Foods, as set forth in the Florida Food Safety Act;
1
Art. I, s. 24(c), FLA. CONST.
2
This portion of a public record exemption is commonly referred to as a “public necessity statement.”
3
Art. I, s. 24(c), FLA. CONST.
4
Section 119.15, F.S.
5
Section 119.15(6)(b), F.S.
6
Section 119.15(3), F.S.
7
Chapter 570, F.S.
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Inspection and certification of honey;
Recordation and inspection of marks and brands of livestock;8 and
Inspection of apiaries9 for diseases inimical to bees and beekeeping.10
According to DACS, 397 inspectors are currently employed and qualify under the provisions set forth
within this bill.11 The areas in which these inspectors preside are classified as: Animal Industry
(36 inspectors), Consumer Services (98 inspectors), Fruit and Vegetable (155 inspectors), Plant
Industry (24 inspectors), and Food and Safety (84 inspectors).12
Effect of the Bill
The bill creates a public records exemption for the home address, telephone numbers, dates of birth,
and photographs of current or former inspectors of DACS, as well as, the names, home address,
telephone numbers, dates of birth, and places of employment of the spouses and children of current or
former inspectors. Additionally, the bill exempts the names and locations of schools and day care
facilities attended by the children of current or former inspectors.
The bill provides that the exemption is subject to the Open Government Sunset Review Act and will
repeal on October 2, 2026, unless the Legislature reviews and reenacts the exemption by that date.
The bill includes a statement of public necessity as required by the Florida Constitution, stating that the
exemption is necessary to protect DACS inspectors and their immediate family members from physical
and emotional harm from disgruntled individuals whose business or professional practices have come
under the scrutiny of DACS.
B. SECTION DIRECTORY:
Section 1: Amends s. 119.071, F.S., relating to general exemptions from inspection or copying of
public records.
Section 2: Provides a statement of public necessity.
Section 3: Provides an effective date of July 1, 2021.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
8
Section 570.07(16)(a)-(n), F.S.
9
An apiary is a collection of beehives.
10
Section 570.07(14), F.S.
11
E-mail from Carlos J. Nathan, Deputy Legislative Affairs Director, Florida Department of Agriculture and Consumer Services,
Office of the Commissioner, to Katherine Becker, Staff Director, The Florida Senate Committee on Agriculture (March 8, 2021) (on
file with the Senate Committee on Agriculture).
12
Id.
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2. Expenditures:
See Fiscal Comments.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
The bill may have a minimal fiscal impact on agencies because agency staff responsible for complying
with public records requests may require training related to the creation of the public record exemption.
Agencies could incur costs associated with redacting the exempt information prior to releasing a record.
The costs, however, would be absorbed by existing resources, as they are part of the day-to-day
responsibilities of agencies.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to require counties or municipalities to take an action
requiring the expenditure of funds, reduce the authority that counties or municipalities have to raise
revenue in the aggregate, nor reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
Vote Requirement
Article I, s. 24(c) of the Florida Constitution requires a two-thirds vote of the members present and
voting for final passage of a newly created or expanded public record exemption. The bill creates a
public record exemption; thus, it requires a two-thirds vote for final passage.
Public Necessity Statement
Article I, s. 24(c) of the Florida Constitution requires a public necessity statement for a newly created
or expanded public record exemption. The bill creates a public record exemption; therefore, it
includes a public necessity statement.
Breadth of Exemption
Article I, section 24(c) of the Florida Constitution requires a newly created public record or public
meeting exemption to be no broader than necessary to accomplish the stated purpose of the law.
This bill creates a public record exemption for certain personal information of current or former DACS
inspectors, their spouses, and children. The purpose of the exemption is to protect current or former
DACS inspectors, their spouses, and children from disgruntled individuals whose business or
professional practices have come under the scrutiny of DACS.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
None.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 1539 2021
1 A bill to be entitled
2 An act relating to public records; amending s.
3 119.071, F.S.; exempting personal identifying and
4 location information of certain current and former
5 inspectors of the Department of Agriculture and
6 Consumer Services and their spouses and children from
7 public records requirements; providing for future
8 legislative review and repeal of the exemption;
9 providing a statement of public necessity; providing
10 an effective date.
11
12 Be It Enacted by the Legislature of the State of Florida:
13
14 Section 1. Paragraph (d) of subsection (4) of section
15 119.071, Florida Statutes, is amended to read:
16 119.071 General exemptions from inspection or copying of
17 public records.—
18 (4) AGENCY PERSONNEL INFORMATION.—
19 (d)1. For purposes of this paragraph, the term:
20 a. "Home addresses" means the dwelling location at which
21 an individual resides and includes the physical address, mailing
22 address, street address, parcel identification number, plot
23 identification number, legal property description, neighborhood
24 name and lot number, GPS coordinates, and any other descriptive
25 property information that may reveal the home address.
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26 b. "Telephone numbers" includes home telephone numbers,
27 personal cellular telephone numbers, personal pager telephone
28 numbers, and telephone numbers associated with personal
29 communications devices.
30 2.a. The home addresses, telephone numbers, dates of
31 birth, and photographs of active or former sworn law enforcement
32 personnel or of active or former civilian personnel employed by
33 a law enforcement agency, including correctional and
34 correctional probation officers, personnel of the Department of
35 Children and Families whose duties include the investigation of
36 abuse, neglect, exploitation, fraud, theft, or other criminal
37 activities, personnel of the Department of Health whose duties
38 are to support the investigation of child abuse or neglect, and
39 personnel of the Department of Revenue or local governments
40 whose responsibilities include revenue collection and
41 enforcement or child support enforcement; the names, home
42 addresses, telephone numbers, photographs, dates of birth, and
43 places of employment of the spouses and children of such
44 personnel; and the names and locations of schools and day care
45 facilities attended by the children of such personnel are exempt
46 from s. 119.07(1) and s. 24(a), Art. I of the State
47 Constitution.
48 b. The home addresses, telephone numbers, dates of birth,
49 and photographs of current or former nonsworn investigative
50 personnel of the Department of Financial Services whose duties
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51 include the investigation of fraud, theft, workers' compensation
52 coverage requirements and compliance, other related criminal
53 activities, or state regulatory requirement violations; the
54 names, home addresses, telephone numbers, dates of birth, and
55 places of employment of the spouses and children of such
56 personnel; and the names and locations of schools and day care
57 facilities attended by the children of such personnel are exempt
58 from s. 119.07(1) and s. 24(a), Art. I of the State
59 Constitution.
60 c. The home addresses, telephone numbers, dates of birth,
61 and photographs of current or former nonsworn investigative
62 personnel of the Office of Financial Regulation's Bureau of
63 Financial Investigations whose duties include the investigation
64 of fraud, theft, other related criminal activities, or state
65 regulatory requirement violations; the names, home addresses,
66 telephone numbers, dates of birth, and places of employment of
67 the spouses and children of such personnel; and the names and
68 locations of schools and day care facilities attended by the
69 children of such personnel are exempt from s. 119.07(1) and s.
70 24(a), Art. I of the State Constitution.
71 d. The home addresses, telephone numbers, dates of birth,
72 and photographs of current or former firefighters certified in
73 compliance with s. 633.408; the names, home addresses, telephone
74 numbers, photographs, dates of birth, and places of employment
75 of the spouses and children of such firefighters; and the names
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76 and locations of schools and day care facilities attended by the
77 children of such firefighters are exempt from s. 119.07(1) and
78 s. 24(a), Art. I of the State Constitution.
79 e. The home addresses, dates of birth, and telephone
80 numbers of current or former justices of the Supreme Court,
81 district court of appeal judges, circuit court judges, and
82 county court judges; the names, home addresses, telephone
83 numbers, dates of birth, and places of employment of the spouses
84 and children of current or former justices and judges; and the
85 names and locations of schools and day care facilities attended
86 by the children of current or former justices and judges are
87 exempt from s. 119.07(1) and s. 24(a), Art. I of the State
88 Constitution.
89 f. The home addresses, telephone numbers, dates of birth,
90 and photographs of current or former state attorneys, assistant
91 state attorneys, statewide prosecutors, or assistant statewide
92 prosecutors; the names, home addresses, telephone numbers,
93 photographs, dates of birth, and places of employment of the
94 spouses and children of current or former state attorneys,
95 assistant state attorneys, statewide prosecutors, or assistant
96 statewide prosecutors; and the names and locations of schools
97 and day care facilities attended by the children of current or
98 former state attorneys, assistant state attorneys, statewide
99 prosecutors, or assistant statewide prosecutors are exempt from
100 s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
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101 g. The home addresses, dates of birth, and telephone
102 numbers of general magistrates, special magistrates, judges of
103 compensation claims, administrative law judges of the Division
104 of Administrative Hearings, and child support enforcement
105 hearing officers; the names, home addresses, telephone numbers,
106 dates of birth, and places of employment of the spouses and
107 children of general magistrates, special magistrates, judges of
108 compensation claims, administrative law judges of the Division
109 of Administrative Hearings, and child support enforcement
110 hearing officers; and the names and locations of schools and day
111 care facilities attended by the children of general magistrates,
112 special magistrates, judges of compensation claims,
113 administrative law judges of the Division of Administrative
114 Hearings, and child support enforcement hearing officers are
115 exempt from s. 119.07(1) and s. 24(a), Art. I of the State
116 Constitution.
117 h. The home addresses, telephone numbers, dates of birth,
118 and photographs of current or former human resource, labor
119 relations, or employee relations directors, assistant directors,
120 managers, or assistant managers of any local government agency
121 or water management district whose duties include hiring and
122 firing employees, labor contract negotiation, administration, or
123 other personnel-related duties; the names, home addresses,
124 telephone numbers, dates of birth, and places of employment of
125 the spouses and children of such personnel; and the names and
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126 locations of schools and day care facilities attended by the
127 children of such personnel are exempt from s. 119.07(1) and s.
128 24(a), Art. I of the State Constitution.
129 i. The home addresses, telephone numbers, dates of birth,
130 and photographs of current or former code enforcement officers;
131 the names, home addresses, telephone numbers, dates of birth,
132 and places of employment of the spouses and children of such
133 personnel; and the names and locations of schools and day care
134 facilities attended by the children of such personnel are exempt
135 from s. 119.07(1) and s. 24(a), Art. I of the State
136 Constitution.
137 j. The home addresses, telephone numbers, places of
138 employment, dates of birth, and photographs of current or former
139 guardians ad litem, as defined in s. 39.820; the names, home
140 addresses, telephone numbers, dates of birth, and places of
141 employment of the spouses and children of such persons; and the
142 names and locations of schools and day care facilities attended
143 by the children of such persons are exempt from s. 119.07(1) and
144 s. 24(a), Art. I of the State Constitution.
145 k. The home addresses, telephone numbers, dates of birth,
146 and photographs of current or former juvenile probation
147 officers, juvenile probation supervisors, detention
148 superintendents, assistant detention superintendents, juvenile
149 justice detention officers I and II, juvenile justice detention
150 officer supervisors, juvenile justice residential officers,
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151 juvenile justice residential officer supervisors I and II,
152 juvenile justice counselors, juvenile justice counselor
153 supervisors, human services counselor administrators, senior
154 human services counselor administrators, rehabilitation
155 therapists, and social services counselors of the Department of
156 Juvenile Justice; the names, home addresses, telephone numbers,
157 dates of birth, and places of employment of spouses and children
158 of such personnel; and the names and locations of schools and
159 day care facilities attended by the children of such personnel
160 are exempt from s. 119.07(1) and s. 24(a), Art. I of the State
161 Constitution.
162 l. The home addresses, telephone numbers, dates of birth,
163 and photographs of current or former public defenders, assistant
164 public defenders, criminal conflict and civil regional counsel,
165 and assistant criminal conflict and civil regional counsel; the
166 names, home addresses, telephone numbers, dates of birth, and
167 places of employment of the spouses and children of current or
168 former public defenders, assistant public defenders, criminal
169 conflict and civil regional counsel, and assistant criminal
170 conflict and civil regional counsel; and the names and locations
171 of schools and day care facilities attended by the children of
172 current or former public defenders, assistant public defenders,
173 criminal conflict and civil regional counsel, and assistant
174 criminal conflict and civil regional counsel are exempt from s.
175 119.07(1) and s. 24(a), Art. I of the State Constitution.
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176 m. The home addresses, telephone numbers, dates of birth,
177 and photographs of current or former investigators or inspectors
178 of the Department of Business and Professional Regulation; the
179 names, home addresses, telephone numbers, dates of birth, and
180 places of employment of the spouses and children of such current
181 or former investigators and inspectors; and the names and
182 locations of schools and day care facilities attended by the
183 children of such current or former investigators and inspectors
184 are exempt from s. 119.07(1) and s. 24(a), Art. I of the State
185 Constitution.
186 n. The home addresses, telephone numbers, and dates of
187 birth of county tax collectors; the names, home addresses,
188 telephone numbers, dates of birth, and places of employment of
189 the spouses and children of such tax collectors; and the names
190 and locations of schools and day care facilities attended by the
191 children of such tax collectors are exempt from s. 119.07(1) and
192 s. 24(a), Art. I of the State Constitution.
193 o. The home addresses, telephone numbers, dates of birth,
194 and photographs of current or former personnel of the Department
195 of Health whose duties include, or result in, the determination
196 or adjudication of eligibility for social security disability
197 benefits, the investigation or prosecution of complaints filed
198 against health care practitioners, or the inspection of health
199 care practitioners or health care facilities licensed by the
200 Department of Health; the names, home addresses, telephone
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201 numbers, dates of birth, and places of employment of the spouses
202 and children of such personnel; and the names and locations of
203 schools and day care facilities attended by the children of such
204 personnel are exempt from s. 119.07(1) and s. 24(a), Art. I of
205 the State Constitution.
206 p. The home addresses, telephone numbers, dates of birth,
207 and photographs of current or former impaired practitioner
208 consultants who are retained by an agency or current or former
209 employees of an impaired practitioner consultant whose duties
210 result in a determination of a person's skill and safety to
211 practice a licensed profession; the names, home addresses,
212 telephone numbers, dates of birth, and places of employment of
213 the spouses and children of such consultants or their employees;
214 and the names and locations of schools and day care facilities
215 attended by the children of such consultants or employees are
216 exempt from s. 119.07(1) and s. 24(a), Art. I of the State
217 Constitution.
218 q. The home addresses, telephone numbers, dates of birth,
219 and photographs of current or former emergency medical
220 technicians or paramedics certified under chapter 401; the
221 names, home addresses, telephone numbers, dates of birth, and
222 places of employment of the spouses and children of such
223 emergency medical technicians or paramedics; and the names and
224 locations of schools and day care facilities attended by the
225 children of such emergency medical technicians or paramedics are
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226 exempt from s. 119.07(1) and s. 24(a), Art. I of the State
227 Constitution.
228 r. The home addresses, telephone numbers, dates of birth,
229 and photographs of current or former personnel employed in an
230 agency's office of inspector general or internal audit
231 department whose duties include auditing or investigating waste,
232 fraud, abuse, theft, exploitation, or other activities that
233 could lead to criminal prosecution or administrative discipline;
234 the names, home addresses, telephone numbers, dates of birth,
235 and places of employment of spouses and children of such
236 personnel; and the names and locations of schools and day care
237 facilities attended by the children of such personnel are exempt
238 from s. 119.07(1) and s. 24(a), Art. I of the State
239 Constitution.
240 s. The home addresses, telephone numbers, dates of birth,
241 and photographs of current or former directors, managers,
242 supervisors, nurses, and clinical employees of an addiction
243 treatment facility; the home addresses, telephone numbers,
244 photographs, dates of birth, and places of employment of the
245 spouses and children of such personnel; and the names and
246 locations of schools and day care facilities attended by the
247 children of such personnel are exempt from s. 119.07(1) and s.
248 24(a), Art. I of the State Constitution. For purposes of this
249 sub-subparagraph, the term "addiction treatment facility" means
250 a county government, or agency thereof, that is licensed
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251 pursuant to s. 397.401 and provides substance abuse prevention,
252 intervention, or clinical treatment, including any licensed
253 service component described in s. 397.311(26).
254 t. The home addresses, telephone numbers, dates of birth,
255 and photographs of current or former directors, managers,
256 supervisors, and clinical employees of a child advocacy center
257 that meets the standards of s. 39.3035(1) and fulfills the
258 screening requirement of s. 39.3035(2), and the members of a
259 Child Protection Team as described in s. 39.303 whose duties
260 include supporting the investigation of child abuse or sexual
261 abuse, child abandonment, child neglect, and child exploitation
262 or to provide services as part of a multidisciplinary case
263 review team; the names, home addresses, telephone numbers,
264 photographs, dates of birth, and places of employment of the
265 spouses and children of such personnel and members; and the
266 names and locations of schools and day care facilities attended
267 by the children of such personnel and members are exempt from s.
268 119.07(1) and s. 24(a), Art. I of the State Constitution.
269 u. The home addresses, telephone numbers, dates of birth,
270 and photographs of current or former inspectors of the
271 Department of Agriculture and Consumer Services; the names, home
272 addresses, telephone numbers, dates of birth, and places of
273 employment of the spouses and children of such current or former
274 inspectors; and the names and locations of schools and day care
275 facilities attended by the children of such current or former
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276 inspectors are exempt from s. 119.07(1) and s. 24(a), Art. I of
277 the State Constitution. This sub-subparagraph is subject to the
278 Open Government Sunset Review Act in accordance with s. 119.15
279 and shall stand repealed on October 2, 2026, unless reviewed and
280 saved from repeal through reenactment by the Legislature.
281 3. An agency that is the custodian of the information
282 specified in subparagraph 2. and that is not the employer of the
283 officer, employee, justice, judge, or other person specified in
284 subparagraph 2. shall maintain the exempt status of that
285 information only if the officer, employee, justice, judge, other
286 person, or employing agency of the designated employee submits a
287 written request for maintenance of the exemption to the
288 custodial agency.
289 4. An officer, an employee, a justice, a judge, or other
290 person specified in subparagraph 2. may submit a written request
291 for the release of his or her exempt information to the
292 custodial agency. The written request must be notarized and must
293 specify the information to be released and the party that is
294 authorized to receive the information. Upon receipt of the
295 written request, the custodial agency shall release the
296 specified information to the party authorized to receive such
297 information.
298 5. The exemptions in this paragraph apply to information
299 held by an agency before, on, or after the effective date of the
300 exemption.
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301 6. Except for sub-subparagraph u., this paragraph is
302 subject to the Open Government Sunset Review Act in accordance
303 with s. 119.15 and shall stand repealed on October 2, 2024,
304 unless reviewed and saved from repeal through reenactment by the
305 Legislature.
306 Section 2. The Legislature finds that it is a public
307 necessity that the home addresses, telephone numbers, dates of
308 birth, and photographs of current or former inspectors of the
309 Department of Agriculture and Consumer Services; the names, home
310 addresses, telephone numbers, dates of birth, and places of
311 employment of the spouses and children of such current or former
312 inspectors; and the names and locations of schools and day care
313 facilities attended by the children of such current or former
314 inspectors be made exempt from s. 119.07(1) and s. 24(a), Art. I
315 of the State Constitution. The release of such identifying and
316 location information may place current or former inspectors of
317 the Department of Agriculture and Consumer Services and their
318 family members in danger of physical and emotional harm from
319 disgruntled individuals whose business or professional practices
320 have come under the scrutiny of the Department of Agriculture
321 and Consumer Services. Inspectors inspect places of business and
322 frequently take adverse actions when violations are found, which
323 creates unpleasant and tenuous situations. The Legislature
324 further finds that the harm that may result from the release of
325 such personal identifying and location information outweighs any
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326 public benefit that may be derived from the disclosure of the
327 information.
328 Section 3. This act shall take effect July 1, 2021.
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HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 6059 Composition of the Multi-use Corridors of Regional Economic Significance Program
SPONSOR(S): Shoaf
TIED BILLS: IDEN./SIM. BILLS: SB 1590
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Tourism, Infrastructure & Energy Subcommittee 18 Y, 0 N Johnson Keating
2) Commerce Committee Johnson Hamon
SUMMARY ANALYSIS
In 2019, the Legislature created the Multi-use Corridors of Regional Economic Significance (M-CORES)
program within the Department of Transportation. The purpose of the program is to revitalize rural
communities, encourage job creation, and provide regional connectivity while leveraging technology,
enhancing quality of life and public safety, and protecting the environment and natural resources. M-CORES is
composed of the following corridors:
Southwest-Central Florida Connector, extending from Collier County to Polk County.
Suncoast Connector, extending from Citrus County to Jefferson County.
Northern Turnpike Connector, extending from the northern terminus of the Florida Turnpike northwest
to the Suncoast Parkway.
The bill removes the words “to Jefferson County” from the description of the Suncoast Connector, thus
providing that the Suncoast Connector extends from Citrus County without a specified terminus.
The bill does not appear to have a fiscal impact on state or local governments.
The bill has an effective date of July 1, 2021.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
In 2019, the Legislature passed CS/SB 7068, creating the Multi-use Corridors of Regional Economic
Significance (M-CORES) program within the Department of Transportation (DOT).1 The purpose of the
program is to revitalize rural communities, encourage job creation, and provide regional connectivity
while leveraging technology, enhancing quality of life and public safety, and protecting the environment
and natural resources. The objective of the program is to advance the construction of regional corridors
that are intended to accommodate multiple modes of transportation and multiple types of infrastructure.
The intended benefits of the program include, but are not limited to, addressing issues such as:
Hurricane evacuation.
Congestion mitigation.
Trade and logistics.
Broadband, water, and sewer connectivity.
Energy distribution.
Autonomous, connected, shared, and electric vehicle technology.
Other transportation modes.
Mobility as a service.
Availability of a trained workforce skilled in traditional and emerging technologies.
Protection or enhancement of wildlife corridors or environmentally sensitive areas.
Protection or enhancement of primary springs protection zones and farmland preservation
areas.2
M-CORES is composed of the following corridors:
Southwest-Central Florida Connector, extending from Collier County to Polk County.
Suncoast Connector, extending from Citrus County to Jefferson County.
Northern Turnpike Connector, extending from the northern terminus of the Florida Turnpike
northwest to the Suncoast Parkway.3
The M-CORES program required DOT to establish task forces for each of the above corridors to serve
as a consensus building mechanism regarding each of the corridors. The Final Task Force Reports for
each corridor were released in November 2020.4 Each report identified a series of potential high-level
needs for DOT’s future evaluation and developed recommendations for how DOT should assess the
need for each corridor.5
Effect of the Bill
The bill removes the words “to Jefferson County” from the description of the Suncoast Connector in s.
338.2278(2)(b), F.S.; thus, providing that the Suncoast Connector extends from Citrus County without a
specified terminus.
B. SECTION DIRECTORY:
Section 1 Amends s. 338.2278, F.S., relating to Multi-use Corridors of Regional Economic
Significance Program.
1
Ch. 2019-43, Laws of Fla.
2
S. 338.2278(1), F.S.
3
S. 338.2278(2), F.S.
4
Copies of all three task force reports are available at: https://floridamcores.com/ (last visited Feb. 24, 2021)
5
M-CORES Suncoast Connector Task Force Report, p. 6. https://floridamcores.com/wp-content/uploads/2020/11/M-
CORES_SCC_FinalTaskForceReport.pdf (last visited Feb. 24, 2020)
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Section 2 Provides an effective date of July 1, 2021.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
The bill does not appear to impact state government revenues.
2. Expenditures:
The bill does not appear to impact state government expenditures.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
The bill does not appear to impact local government revenues.
2. Expenditures:
The bill does not appear to impact local government expenditures.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to impact county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
This bill does not provide a grant of rulemaking, nor does it require rulemaking.
C. DRAFTING ISSUES OR OTHER COMMENTS:
By removing the terminus for the Suncoast Connector, the bill creates ambiguity as to the desired
direction and purpose of that corridor.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 6059 2021
1 A bill to be entitled
2 An act relating to the composition of the Multi-use
3 Corridors of Regional Economic Significance Program;
4 amending s. 338.2278, F.S.; removing a certain
5 regional corridor terminus from the program; providing
6 an effective date.
7
8 Be It Enacted by the Legislature of the State of Florida:
9
10 Section 1. Paragraph (b) of subsection (2) of section
11 338.2278, Florida Statutes, is amended to read:
12 338.2278 Multi-use Corridors of Regional Economic
13 Significance Program.—
14 (2) The program is composed of all of the following
15 corridors:
16 (b) Suncoast Connector, extending from Citrus County to
17 Jefferson County.
18 Section 2. This act shall take effect July 1, 2021.
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CODING: Words stricken are deletions; words underlined are additions.
hb6059-00
HB 7049
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 7049 PCB GOS 21-06 OGSR/Office of Insurance Regulation
SPONSOR(S): Government Operations Subcommittee, Shoaf
TIED BILLS: IDEN./SIM. BILLS: SB 7014
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Government Operations 15 Y, 0 N Toliver Smith
Subcommittee
1) Commerce Committee Fortenberry Hamon
2) State Affairs Committee
SUMMARY ANALYSIS
The Open Government Sunset Review Act requires the Legislature to review each public record and each
public meeting exemption five years after enactment. If the Legislature does not reenact the exemption, it
automatically repeals on October 2nd of the fifth year after enactment.
States are the primary regulators of insurance companies. In Florida, the Office of Insurance Regulation (OIR)
is primarily responsible for licensing insurance companies, monitoring the solvency of regulated insurers,
examining insurers to determine compliance with applicable laws, and taking administrative action, if
necessary. OIR is a member of the National Association of Insurance Commissioners (NAIC), an organization
consisting of state insurance regulators. As a member of the NAIC, the OIR is required to participate in the
organization’s accreditation program.
The NAIC created two model acts that each member must enact to stay accredited: the Own Risk Solvency
Assessment (ORSA) Model Act and the Corporate Governance Annual Disclosure (CGAD) Model Act. An
ORSA is an internal assessment of all reasonably foreseeable and relevant material risks that is designed to
provide OIR with a comprehensive view of the ability of an insurer to withstand financial stress. Each ORSA
report must also contain a high-level summary of its contents, termed an ORSA summary report. A CGAD
requires disclosures of the insurer’s corporate governance structure as well as the policies and practices of its
Board of Directors and Senior Management.
In 2016, the Florida Legislature passed CS/CS/SB 1422 that enacted solvency regulation measures designed
to protect policyholders against the risk that insurers will not be able to meet their financial responsibilities.
Among other requirements, the bill enacted portions of the ORSA model act and the CGAD model act,
requiring insurers to submit an ORSA and a CGAD to OIR each year.
Current law makes certain proprietary business information held by OIR confidential and exempt from public
record requirements. This includes proprietary business information and supporting documents contained in
documents, such as the actuarial opinion summary, principle-based valuation report, enterprise risk report, and
insurance holding company registration.
To protect certain sensitive and strategic financial information, the Legislature in 2016 created a public record
exemption for ORSA summary reports, substantially similar ORSA reports, CGAD reports, and supporting
documents held by OIR. The documents are confidential and exempt from public records requirements.
Information otherwise available for public inspection is specifically excluded from the exemption.
The bill saves from repeal these public record exemptions, which will repeal on October 2, 2021, if this bill does
not become law.
The bill does not appear to have a fiscal impact on state or local governments.
FULL ANALYSIS
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
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DATE: 4/2/2021
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Open Government Sunset Review Act
The Open Government Sunset Review Act (Act)1 sets forth a legislative review process for newly
created or substantially amended public record or public meeting exemptions. It requires an automatic
repeal of the exemption on October 2nd of the fifth year after creation or substantial amendment,
unless the Legislature reenacts the exemption.2
The Act provides that a public record or public meeting exemption may be created or maintained only if
it serves an identifiable public purpose. In addition, it may be no broader than is necessary to meet one
of the following purposes:
Allow the state or its political subdivisions to effectively and efficiently administer a
governmental program, which administration would be significantly impaired without the
exemption.
Protect sensitive personal information that, if released, would be defamatory or would
jeopardize an individual’s safety; however, only the identity of an individual may be
exempted under this provision.
Protect trade or business secrets.3
If, and only if, in reenacting an exemption that will repeal, the exemption is expanded (essentially
creating a new exemption), then a public necessity statement and a two-thirds vote for passage are
required.4 If the exemption is reenacted with grammatical or stylistic changes that do not expand the
exemption, if the exemption is narrowed, or if an exception to the exemption is created then a public
necessity statement and a two-thirds vote for passage are not required.
Regulation of Insurance in Florida
States are the primary regulators of insurance companies. In Florida, the Office of Insurance
Regulation (OIR)5 is primarily responsible for licensing insurance companies, monitoring the solvency
of regulated insurers, examining insurers to determine compliance with applicable laws, and taking
administrative action, if necessary.
National Association of Insurance Commissioners Accreditation
OIR is a member of the National Association of Insurance Commissioners (NAIC), an organization
consisting of state insurance regulators.6 As a member of the NAIC, the OIR is required to participate in
the organization’s accreditation program.7 NAIC accreditation is a certification that a state insurance
department is fulfilling legal, regulatory, and organizational oversight standards and practices. Once
accredited, a member state is subject to a full accreditation review every five years. The NAIC also
periodically reviews its solvency standards as set forth in its model acts, and revises accreditation
requirements to adapt to evolving industry standards.
Own Risk and Solvency Assessment (ORSA)
An ORSA is an “internal assessment, appropriate to the nature, scale, and complexity of an insurer or
insurance group, conducted by that insurer or insurance group, of the material and relevant risks
associated with the business plan of an insurer or insurance group and the sufficiency of capital
1
Section 119.15, F.S.
2
Section 119.15(3), F.S.
3
Section 119.15(6)(b), F.S.
4
Section 24(c), Art. I, FLA. CONST.
5
Section 20.121(3)(a)1., F.S.
6
About, NATIONAL ASSOCIATION OF INSURANCE COMMISSIONERS, https://content.naic.org/index_about.htm (last visited Feb. 2, 2021).
7
Accreditation, NATIONAL ASSOCIATION OF INSURANCE COMMISSIONERS, https://content.naic.org/cipr_topics/topic_accreditation.htm
(last visited Feb. 2, 2021).
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DATE: 4/2/2021
resources to support those risks.”8 The NAIC created the ORSA model act that would require each
insurer to submit an ORSA report to the regulatory entity of the state. The NAIC made it an
accreditation requirement that member states adopt the ORSA Model Act by 2018. In 2016, the
Legislature passed CS/CS/SB 1422 (2016), which adopted major components of the ORSA model act.
The bill required insurers to:
Conduct an ORSA at least annually (and whenever there have been significant changes to the
risk profile of the insurer or the insurance group);
Maintain a risk management framework for identifying, assessing, monitoring, managing, and
reporting on its material, relevant risks;
File an ORSA summary report, based on the NAIC ORSA Guidance Manual, with OIR that
must:
o Be submitted once every calendar year;
o Include a brief description of material changes and updates from the prior year’s report;
o Be signed by the chief risk officer or chief executive officer responsible for overseeing
the enterprise risk management process; provide a copy to the board of directors or the
appropriate board committee; and
o Be prepared in accordance with NAIC’s ORSA guidance manual and the insurer must
maintain and make available for OIR examination documentation and supporting
information.
Corporate Governance Annual Disclosure (CGAD)
The NAIC also created the Corporate Governance Model Act to provide insurance regulators with
sufficient information on insurer governance structures, practices, and processes through an annual
disclosure, the CGAD.9 In 2016, the Legislature mandated that insurers submit CGADs to OIR by June
1 of each year. The CGAD must describe the:
Corporate governance framework and structure of the insurer or insurance group;
Policies and practices of the most senior governing entity and significant committees;
Policies and practices for directing senior management; and
Processes by which the board, its committees, and senior management ensure an appropriate
amount of oversight to the critical risk areas that have an impact on the insurer’s business
activities.10
The Chief Executive Officer or Corporate Secretary of the insurer or insurance group must sign the
CGAD attesting that, to the best of his or her knowledge and belief, the insurer has implemented the
corporate governance practices and provided a copy of the disclosure to the board of directors or the
appropriate board committee.11
Public Record Exemption under Review
8
Section 628.8015(d), F.S.
9
Section 628.8015(1)(a), F.S., defines CGAD to mean “a report filed by an insurer or insurance group in accordance with [section
628.8015, F.S.]”
10
Section 628.8015(3)(b)4., F.S.
11
Section 628.8015(3)(b)2., F.S.
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Section 624.4212, F.S., makes certain proprietary business information12 held by OIR confidential and
exempt13 from s. 119.07(1), F. S., and Art. I, s. 24(a) of the State Constitution.14 This includes
proprietary business information and supporting documents contained in documents, such as the
actuarial opinion summary, principle-based valuation report, enterprise risk report, and insurance
holding company registration.15
In 2016, the Legislature created a public record exemption for the following information held by OIR:
ORSA summary report, a substantially similar ORSA report, and supporting documents.
CGAD and supporting documents.16
The information is confidential and exempt from public record requirements. Information obtained by
OIR that is otherwise available for public inspection is specifically excluded from the exemption.17
The 2016 public necessity statement18 for the ORSA portion of the exemption provides:
The ORSA summary report, substantially similar ORSA report, and supporting
documents contain highly sensitive and strategic financial information about an
insurer or insurer group. … Divulging the ORSA [documents] will injure the insurer
or insurance group by providing competitors with detailed insight into their financial
position, risk management strategies, business plans, pricing and marketing
strategies, management systems and operation protocols.19
The public necessity statement for the CGAD portion of the exemption provides:
The [CGAD] describes an insurer’s governance and the internal practices and
procedures used in conducting the business affairs of the company, making
strategic operational decisions affecting its competitive position, and managing its
financial condition. Release of the [CGAD] and supporting documents will injure
12
The term “proprietary business information” means information, regardless of form or characteristics, which is owned or controlled
by an insurer, or a person or an affiliated person who seeks acquisition of controlling stock in a domestic stock insurer or controlling
company, and which:
Is intended to be and is treated by the insurer or the person as private in that the disclosure of the information would cause
harm to the insurer, the person, or the company’s business operations and that the information has not been disclosed unless
disclosed pursuant to a statutory requirement, an order of a court or administrative body, or a private agreement that provides
that the information will not be released to the public;
Is not otherwise readily ascertainable or publicly available by proper means by other persons from another source in the
same configuration as requested by the office; and
Includes trade secrets; information relating to competitive interests, the disclosure of which would impair the competitive
business of the provider of the information; the source, nature, and amount of the consideration used or to be used in
carrying out a merger or other acquisition of control in the ordinary course of business, including the identity of the lender, if
the person filing a statement regarding consideration so requests; information relating to bids or other contractual data, the
disclosure of which would impair the efforts of the insurer or its affiliates to contract for goods or services on favorable
terms; and internal auditing controls and reports of internal auditors. Section 624.4212(1), F.S.
13
There is a difference between records the Legislature designates exempt from public record requirements and those the Legislature
deems confidential and exempt. A record classified as exempt from public disclosure may be disclosed under certain circumstances.
See WFTV, Inc. v. Sch. Bd. of Seminole, 874 So.2d 48, 53 (Fla. 5th DCA 2004), review denied 892 So.2d 1015 (Fla. 2004); City of
Riviera Beach v. Barfield, 642 So.2d 1135 (Fla. 4th DCA 1994); Williams v. City of Minneola, 575 So.2d 683, 687 (Fla. 5th DCA
1991). If the Legislature designates a record as confidential and exempt from public disclosure, such record may not be released, by
the custodian of public records, to anyone other than the persons or entities specifically designated in statute. See Attorney General
Opinion 85-62 (Aug. 1, 1985).
14
Chapter 2014-100, Laws of Fla.
15
Section 624.4212(2), F.S.
16
Section 624.4212(3), F.S.
17
Id.
18
Article I, s. 24(c), FLA. CONST., requires each public record exemption “state with specificity the public necessity justifying the
exemption.”
19
Chapter 2016-205, L.O.F.
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the insurer or insurance group in the marketplace by providing competitors with
the insurer’s or the insurance group’s confidential business information.20
Pursuant to the Open Government Sunset Review Act, the exemption will repeal on October 2, 2021,
unless reenacted by the Legislature.21 Additionally, the 2016, law creating ORSA and CGAD
submission requirements provided that those substantive provisions will also repeal if the exemption is
allowed to repeal.22
During the 2020 interim, subcommittee staff met with OIR staff to discuss the exemption. OIR staff
stated that the agency had not had trouble implementing or interpreting the exemption. While OIR
responded that the agency had received many broad public record requests which would include the
ORSA and CGAD reports, they were unable to identify any requests asking for those documents
specifically. OIR staff has indicated they were unaware of any litigation concerning the exemption. OIR
emphasized the importance of the exemption, and the importance of the substantive ORSA and CGAD
provisions linked to the exemption, in maintaining the confidentiality of insurers’ proprietary business
information and in continuing to meet NAIC accreditation standards. OIR recommended that the
exemption be reenacted as is.
Effect of the Bill
The bill removes the scheduled repeal date of the public record exemptions, thereby maintaining the
public record exemption for certain proprietary business information, an ORSA summary report, a
substantially similar ORSA report, and supporting documents, as well as for a CGAD and supporting
documents.
By removing the scheduled repeal date of the public record exemptions, the bill also saves from repeal
the substantive ORSA and CGAD provisions linked to the exemptions.
B. SECTION DIRECTORY:
Section 1 amends s. 624.4212, F.S., to remove the scheduled repeal date of the public record
exemption.
Section 2 provides an effective date of October 1, 2021.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
20
Id.
21
Section 624.4212(6), F.S.
22
Chapter 2016-206, L.O.F.
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2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
None.
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DATE: 4/2/2021
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 7049 2021
1 A bill to be entitled
2 An act relating to a review under the Open Government
3 Sunset Review Act; amending s. 624.4212, F.S., which
4 provides an exemption from public records requirements
5 for certain proprietary business information, certain
6 solvency reports and disclosures, and information that
7 is confidential and held by the Office of Insurance
8 Regulation; removing the scheduled repeal of the
9 exemption; providing an effective date.
10
11 Be It Enacted by the Legislature of the State of Florida:
12
13 Section 1. Subsection (6) of section 624.4212, Florida
14 Statutes, is amended to read:
15 624.4212 Confidentiality of proprietary business and other
16 information.—
17 (6) This section is subject to the Open Government Sunset
18 Review Act in accordance with s. 119.15 and is repealed on
19 October 2, 2021, unless reviewed and saved from repeal through
20 reenactment by the Legislature.
21 Section 2. This act shall take effect October 1, 2021.
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hb7049-00
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