Meeting Packet - Commerce Committee Agenda and Staff Analysis (April 19, 2021)
Summary
Meeting packet for the Commerce Committee of The Florida House of Representatives for Monday, April 19, 2021, with Blaise Ingoglia as Chair. The agenda lists consideration of bills including CS/HB 57 (Transportation), CS/HB 1239 (Broadband Internet Infrastructure) and CS/HB 1567 (Utility and Communication Service Poles), plus PCS for HB 249 (Specialty License Plates). The staff analysis of CS/HB 57 says the bill increases the statutory weight limit of a personal delivery device from 80 pounds to 550 pounds, excluding cargo, and has an effective date of July 1, 2021. It reports an insignificant negative fiscal impact to state government from increased compensation for members of the State Arbitration Board.
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Commerce Committee
Monday, April 19, 2021
10:00 AM – 2:00 PM
And
8:30 PM – 9:30 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
Monday, April 19, 2021
10:00 AM – 2:00 PM
And
8:30 PM – 9:30 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 57 Transportation by Tourism, Infrastructure & Energy Subcommittee,
Andrade
• CS/CS/HB 267 State Preemption of Seaport Regulations by Local Administration
& Veterans Affairs Subcommittee, Tourism, Infrastructure & Energy
Subcommittee, Roach, Sirois
• CS/HB 273 Motor Vehicle Insurance Coverage Exclusions by Insurance &
Banking Subcommittee, Plakon
• CS/HB 305 Insurance by Insurance & Banking Subcommittee, Rommel
• CS/HB 365 Motor Vehicle Rentals by Ways & Means Committee, Caruso
• CS/HB 387 Improvements to Real Property by Tourism, Infrastructure & Energy
Subcommittee, Fine
303 House Office Building, 402 South Monroe Street, Tallahassee, FL 32399-1300
(850) 717-4870
• CS/HB 605 Bicycle and Pedestrian Safety by Tourism, Infrastructure & Energy
Subcommittee, Hunschofsky
• CS/CS/HB 613 Tax Collector and License Plate Agency Operations by
Infrastructure & Tourism Appropriations Subcommittee, Tourism, Infrastructure
& Energy Subcommittee, Aloupis
• CS/HB 717 Consumer Protection by Insurance & Banking Subcommittee,
Clemons
• CS/HB 815 Insurance by Insurance & Banking Subcommittee, Gregory
• CS/HB 911 Medical Treatment of Animals by Regulatory Reform Subcommittee,
Buchanan
• CS/CS/HB 987 Tobacco and Nicotine Products by State Administration &
Technology Appropriations Subcommittee, Regulatory Reform Subcommittee,
Toledo, Duran
• CS/HB 1239 Broadband Internet Infrastructure by Ways & Means Committee,
Tomkow
• CS/HB 1307 Telephone Solicitation by Regulatory Reform Subcommittee,
Beltran
• CS/HB 1351 Money Services Businesses by Insurance & Banking Subcommittee,
Aloupis
• CS/HB 1567 Utility and Communication Service Poles by Tourism, Infrastructure
& Energy Subcommittee, DiCeglie
Consideration of the following proposed committee substitute(s):
• PCS for HB 249 -- Specialty License Plates
V. Closing Remarks
VI. Adjournment
CS/HB 57
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 57 Transportation
SPONSOR(S): Tourism, Infrastructure & Energy Subcommittee, Andrade
TIED BILLS: IDEN./SIM. BILLS: CS/SB 1194
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Tourism, Infrastructure & Energy Subcommittee 18 Y, 0 N, As CS Johnson Keating
2) Commerce Committee Johnson Hamon
SUMMARY ANALYSIS
The bill contains various provisions related to transportation. In summary, the bill:
Prohibits governmental entities from prohibiting certain entities holding a certificate of qualification from
the Department of Transportation (DOT) or the appropriate construction license from bidding on road,
bridge, or other specified public construction projects.
Increases the statutory weight limit of a personal delivery device from 80 pounds to 550 pounds,
excluding cargo.
Authorizes vehicles to display flashing lights if certain conditions exist.
Authorizes specified road construction vehicles to display flashing blue lights under certain
circumstances.
Authorizes portable radar speed display units to display flashing red or blue lights under certain
circumstances.
Revises statutory provisions regarding innovative transportation projects.
Revises financial statement requirements for certificates for qualification of DOT contractors.
Clarifies that the submission of an application for qualification and subsequent approval does not affect
an applicant’s ability factor or maximum capacity rating.
Revises construction, engineering, and inspection requirements for airports.
Revises statutory provisions regarding the State Arbitration Board within DOT, by clarifying court
review, providing subpoena power, and increasing payments to certain board members.
Requires the Central Florida Expressway Authority to consult with, instead of obtain consent from, the
Secretary of DOT prior to constructing any extensions, additions, or improvements to the expressway
system in Lake County.
Defines the term “borrow pit” and requires notification to the Department of Environmental Protection
for certain activities relating to borrow pits.
The bill has an insignificant negative fiscal impact to state government associated with an increase in
compensation for members of the State Arbitration Board. Local governments operating airports may see a
reduction in expenditures due to the exemption from construction, engineering, and inspection requirements in
the bill. 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 .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Procurement of Public Construction Services
Current Situation
State Procurement Law
Chapter 287, F.S., governs the state’s procurement of personal property and services.
The Legislature recognizes that fair and open competition is a basic tenet of public
procurement. It is essential to the effective and ethical procurement of commodities and
contractual services that there be a system of uniform procedures utilized by state
agencies in managing and procuring commodities and contractual services, that detailed
justification of agency1 decisions in the procurement of commodities and contractual
services be maintained, and that adherence by the agency and the vendor to specific
ethical considerations be required.2
Depending on the cost and characteristics of the needed goods or services, agencies may utilize a
variety of procurement methods, which include:3
Single source contracts, which are used when an agency determines that only one vendor is
available to provide a commodity or service at the time of purchase;
Invitations to bid, which are used when an agency determines that standard services or goods
will meet needs, wide competition is available, and the vendor’s experience will not greatly
influence the agency’s results;
Requests for proposal, which are used when the procurement requirements allow for
consideration of various solutions and the agency believes more than two or three vendors exist
who can provide the required goods or services; and
Invitations to negotiate, which are used when negotiations are determined to be necessary to
obtain the best value and involve a request for highly complex, customized, mission-critical
services.
Construction Contracting
Administered by the Department of Business and Professional Regulation, ch. 489, F.S., relates to
various forms of construction contracting and generally requires licensing of construction contractors.
However, there is an exemption for road and railroad construction and services incidental to such
work.4
Department of Transportation Certification for Qualification
Florida law requires that any contractor desiring to bid on any Department of Transportation (DOT)
construction contract in excess of $250,000 must first be certified by DOT as qualified pursuant to state
1 Section 287.012(1), F.S., defines the term “agency” as any of the various state officers, departments, boards, commissions, divisions,
bureaus, and councils and any other unit of organization, however designated, of the executive branch of state government. “Agency”
does not include the university and college boards of trustees or the state universities and colleges.
2 S. 287.001, F.S.
3 See ss. 287.012(6) and 287.057, F.S.
4 S. 489.103(1), F.S. Rule 61G4-12.011, F.A.C., defines the term “services incidental thereto” for the purpose of s. 489.103(1), F.S.,
only, to mean all work on bridges, roads, streets, highways, and railroads except building construction and those subcontractor
categories, defined in Sections 489.105(3)(d)-(q), F.S. However, notwithstanding the previous provision, services incidental thereto
specifically includes storm drainage and excavation work necessary for the construction of bridges, roads, streets, highways, and
railroads; and includes directly contracting with a governmental entity for work on bridges, roads, street, highways, and railroads when
any building construction included in the contract is subcontracted to a contractor appropriately licensed under ch. 489, Part I, F.S., to
perform building construction or those subcontractor categories defined in ss. 489.105(3)(d)-(q), F.S., and such building construction
does not constitute more than 50 percent of the total contract amount.
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law5 and DOT’s rules.6 DOT’s rules must include requirements with respect to the equipment, past
record, experience, financial resources, and organizational personnel of the applying contractor which
are necessary to perform the specific class of work for which the contractor seeks certification.7 DOT’s
rules provide the requirements for contractors to be certified as qualified to bid for the performance of
road, bridge, or public transportation construction contracts in excess of $250,000.8
Effect of the Bill
The bill provides that a governmental entity9 procuring certain services via a competitive solicitation10
may not prohibit a response from a vendor that possesses a valid certificate of qualification or license
under ch. 489, F.S., corresponding to the contractual services being procured. Specifically, this
provision applies to procurement of contractual services11 that are limited to the classes of work for
which DOT issues certificates of qualification and that do not involve the construction, remodeling,
repair, or improvement of any building. This applies to all competitive solicitations issued by a
governmental entity on or after October 1, 2021.
Personal Delivery Devices
Current Situation
A personal delivery device (PDD) is an electrically powered device that:
Is operated on sidewalks and crosswalks and intended primarily for transporting property;
Weighs less than 80 pounds, excluding cargo;
Has a maximum speed of 10 miles per hour; and
Is equipped with technology to allow for operation of the device with or without the active control
or monitoring of a natural person.12
A PDD may operate on sidewalks and crosswalks where it has all the rights and duties applicable to a
pedestrian, except that a PDD may not unreasonably interfere with pedestrians or traffic and must yield
the right-of-way to pedestrians on the sidewalk or crosswalk.13
A PDD must obey all official traffic and pedestrian control signals and devices, display identifying
information, and be equipped with a braking system.14 A PDD may not:
Operate on a public highway except to the extent necessary to cross a crosswalk;
Operate on a sidewalk or crosswalk unless the PDD operator is actively controlling or
monitoring its navigation and operation; or
Transport hazardous materials.15
Effect of the Bill
5 S. 337.14, F.S.
6 DOT’s rules regarding contractor qualification are codified in Rule 14-22, F.A.C.
7 S. 337.14(1), F.S.
8 R. 14-22.0011(1), F.A.C.
9 Section 287.102(14), F.S., defines the term “governmental entity” as a political subdivision or agency of this state or of any state of the
United States, including, but not limited to, state government, county, municipality, school district, nonprofit public university or college,
single-purpose or multipurpose special district, single-purpose or multipurpose public authority, metropolitan or consolidated
government, separate legal entity or administrative entity, or any agency of the Federal Government.
10 Section 287.012(6), F.S., defines the term “competitive solicitation” as the process of requesting and receiving two or more sealed
bids, proposals, or replies submitted by responsive vendors in accordance with the terms of a competitive process, regardless of the
method of procurement.
11 Section 287.012(8), F.S., defines the term “contractual service” as the rendering by a contractor of its time and effort rather than the
furnishing of specific commodities. The term applies only to those services rendered by individuals and firms who are independent
contractors, and such services may include, but are not limited to, evaluations; consultations; maintenance; accounting; security;
management systems; management consulting; educational training programs; research and development studies or reports on the
findings of consultants engaged thereunder; and professional, technical, and social services. The term does not include a contract for
the furnishing of labor or materials for the construction, renovation, repair, modification, or demolition of a facility, building, portion of
building, utility, park, parking lot, or structure or other improvement to real property entered into pursuant to Ch. 255, F.S., and rules
adopted thereunder.
12 S. 316.003(56), F.S.
13 S. 316.2071(1), F.S.
14 S. 316.0271(2), F.S.
15 S. 316.2071(3), F.S.
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The bill increases the statutory weight limit of a PDD from 80 pounds to 550 pounds, excluding cargo.
This will allow larger PDDs to assist with such tasks as package delivery.
Flashing Blue Lights
Current Situation
Florida law prohibits the display of blue lights on any vehicle or equipment, except police vehicles and
vehicles of the Department of Corrections or any county correctional agency when responding to
emergencies.16
Road or street maintenance equipment, road or street maintenance vehicles, road service vehicles,
refuse collection vehicles, petroleum tankers, and mail carrier vehicles may display amber lights when
in operation or where a hazard exists.17 Additionally, road maintenance and construction equipment
and vehicles may display flashing white lights or flashing white strobe lights when in operation and
where a hazard exists.18
The Manual on Uniform Traffic Control Devices (MUTCD), adopted by DOT pursuant s. 316.0745, F.S.,
describes portable changeable message signs as temporary traffic control devices installed for
temporary use with the flexibility to display a variety of messages, including warning messages where
traffic speed is expected to drop substantially.19 Warning lights used in a temporary traffic control zone,
in either a steady burn or a flashing mode, are yellow in color as required by the MUTCD.20 In addition,
the MUTCD provides that “If a changeable message sign displaying approach speeds is installed, the
legend YOUR SPEED XX MPH or such similar legend should be displayed. The color of the
changeable message legend should be a yellow legend on a black background or the reverse of these
colors.”21
Effect of the Bill
The bill authorizes paving machines or compaction rollers within a work zone on roadways with a
posted speed limit of 55 mph or higher to show or display flashing blue lights while performing paving
operations or where a hazard exists. Additionally, under the direction of a law enforcement officer, the
bill authorizes portable radar speed display units to show or display flashing red or blue lights when
placed in advance of a work zone on roadways with a posted speed limit of 55 mph or higher and when
workers are present.
Flashing Lights on Vehicles
Current Situation
Florida law prohibits the use of flashing lights on vehicles except:
As a means of indicating a right or left turn, to change lanes, or to indicate that the vehicle is
lawfully stopped or disabled upon the highway;
When a motorist intermittently flashes his or her vehicle’s headlamps at an oncoming vehicle
notwithstanding the motorist’s intent for doing so; and
For certain lamps authorized in statute, which may flash, including various types of emergency
vehicles.22
With the exception of funeral processions,23 Florida law does not expressly authorize the use of hazard
lights on moving vehicles. The Florida Driver Handbook indicates that a driver should not use
16 S. 316.2397(2), F.S.
17 S. 316.2397(4), F.S.
18 S. 316.2397(5), F.S.
19 MUTCD, Section 6F.60, available at https://mutcd.fhwa.dot.gov/pdfs/2009r1r2/mutcd2009r1r2edition.pdf (last visited Dec. 14, 2020).
20 MUTCD, Section 1A.13 definition of “warning light.”
21 MUTCD, Section 2B.13.
22 S. 316.2397(7), F.S.
23 S. 316.1974(3)(c), F.S.
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emergency flashers in instances of low visibility or rain, and may only use emergency flashers when a
vehicle is disabled or stopped on the side of the road.24
Effect of the Bill
The bill authorizes the use of flashing lights on vehicles during periods of extreme low visibility on
roadways with a posted speed limit of 55 mph or higher.
Innovative Transportation Projects
Current Situation
Innovative Transportation Projects
Current law authorizes DOT to establish a program for transportation projects that demonstrate
innovative techniques of highway and bridge design, construction, maintenance, and finance which
have the intended effect of measuring resiliency and structural integrity and controlling time and cost
increases on construction projects. These techniques may include, but are not limited to, state-of-the-
art technology for pavement, safety, and other aspects of highway and bridge design, construction, and
maintenance; innovative bidding and financing techniques; accelerated construction procedures; and
techniques that have the potential to reduce project life cycle costs. To the maximum extent practical,
DOT must use the existing standard process to award and administer construction and maintenance
contracts. When specific innovative techniques are to be used, DOT is not required to adhere to
provisions of law that would prevent it from using the innovative technique. However, before using an
innovative technique that is inconsistent with another provision of law, DOT must document the need
for the exception and identify what benefits the traveling public and the affected community are
anticipated to receive.25
DOT may enter into no more than $120 million in contracts annually for the purposes of innovative
transportation projects.26 This annual cap on contracts for innovative transportation projects does not
apply to:
Turnpike enterprise projects.
Transportation projects funded by the American Recovery and Reinvestment Act of 2009.27
Effect of the Bill
The bill removes redundant language regarding the exception for turnpike enterprise projects and the
exception for projects funded by the American Recovery and Reinvestment Act of 2009. The bill
provides that the annual cap on contracts does not apply to low-bid design-build milling28 and
resurfacing contracts.
Application for Qualification
Current Situation
Any contractor that desires to bid for the performance of any DOT construction contract in excess of
$250,000 must first be certified by DOT as qualified.29
A contractor who is not already qualified and in good standing with DOT as of January 1, 2019, and
who desires to bid on DOT contracts in excess of $50 million must have satisfactorily completed two
projects, each in excess of $15 million, for DOT or for any other state’s department of transportation.30
24 Department of Highway Safety and Motor Vehicles, Florida Driver Handbook, available at:
https://www3.flhsmv.gov/handbooks/englishdriverhandbook.pdf (last visited Dec, 14, 2020).
25 S. 337.025(1), F.S.
26 Id.
27 S. 337.025(2), F.S.
28 Pavement milling, is a process that removes part of a paved surface, such as a parking lot or road. Milling can remove just the
surface of the pavement, or anywhere up to the entire depth, referred to as full depth removal. https://www.dykespaving.com/blog/how-
does-pavement-milling-work/ (last visited Jan. 22, 2021).
29 S, 337.14(1), F.S. DOT’s rules regarding qualifications to bid are contained in Rule. 14-22, F.A.C.
30 S. 337.14(1), F.S.
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Each application for certification must be accompanied by the contractor’s latest annual financial
statement, which must have been completed within the last 12 months. If the application or the annual
financial statement shows the contractor’s financial condition more than four months prior to the date
on which DOT receives the application, the contractor must also submit an interim financial statement
and an updated application. Each required annual or interim financial statement must be audited and
accompanied by the opinion of a certified public accountant.31
Effect of the Bill
The bill provides that any contractor who desires to bid on contracts in excess of $50 million must be
certified by DOT as qualified in addition to meeting existing experience requirements.
The bill requires each application for certification to be accompanied by audited, certified financial
statements prepared in accordance with United States generally accepted accounting principles and
United States generally accepted auditing standards by a certified public accountant licensed in this
state or another state. The applying contractor’s audited, certified financial statements must specifically
address the applying contractor and must have been prepared within the immediately preceding 12
months. DOT may not consider any financial information relating to the parent entity of the applying
contractor, if any. DOT may not certify as qualified any applying contractor that fails to submit the
required audited, certified financial statements.
If the application or the annual financial statement shows the applying contractor’s financial condition
more than four months before the date on which DOT receives the application, the bill authorizes DOT
to request, rather than require, the applying contractor to also submit interim audited, certified financial
statements prepared in accordance with United States generally accepted accounting and auditing
principles and standards. Financial statements must be prepared by a certified public accountant
licensed in this state or another state.
Certificate of Qualification
Current Situation
Current law provides that if an applicant for a certificate of qualification is found to possess the
prescribed qualifications, DOT must issue to him or her a certificate of qualification that, unless revoked
by DOT for good cause, will be valid for a period of 18 months after the date of the applicant's financial
statement or such shorter period as DOT prescribes. Submission of a new application does not affect
expiration of the certificate of qualification.32
The ability factor is a performance score which a contractor receives from DOT upon completion of a
project. The initial ability factor is based on the applicant’s organization, management, work experience,
and letters of recommendation.33
The maximum capacity rating is the total aggregate dollar amount of uncompleted work an applicant
may have under contract at one time either as a prime contractor and/or subcontractor, regardless of its
location or with whom contracted.34
Effect of the Bill
The bill provides that the submission of an application of qualification and subsequent approval of such
application do not affect the ability factor of the applicant, or the maximum capacity rating of the
applicant.
Construction, Engineering, and Inspection at Airports
Current Situation
31 Id.
32 S. 337.14(4), F.S.
33 R. 14.22-003, F.A.C.
34 R. 14-22.003, F.A.C.
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Under current law, a contractor,35 or his or her affiliate36 qualified with DOT may not also qualify to
provide testing services, or construction, engineering, and inspection (CEI) services to DOT.37 This
limitation does not apply to any design-build prequalification38 and does not apply when DOT otherwise
determines by written order entered at least 30 days before advertisement that the limitation is not in
the public’s best interests with respect to a particular contract for testing services or CEI services.
DOT has adopted procedures governing conflicts of interest involving professional services consultant
contracts and design-build contracts. The procedures contain a set of matrices illustrating the variety of
scenarios encountered with prime contractor or subcontractors and when DOT would consider the
arrangement a conflict.39
In 2019, the Legislature passed HB 905,40 which provided that for a construction project wholly or
partially funded by DOT and administered by a local governmental entity, the same entity may not
perform both design services and CEI services. That bill exempted certain seaports from that provision.
According to the Florida Airports Council, the 2019 statutory changes relating to CEI requirements will
increase construction costs, increase project schedules due to additional coordination with consultants,
and reduce project efficiency. Depending on the project, airports may leverage different delivery
methods for CEI activities. Additionally, airports indicate that they deliver more than road projects and
that DOT’s professional services requirements do not always accommodate airport construction
projects.41 The Florida Airports Council maintains that due to the unique and specialized nature of
airports, they need to remain agile in the projects they delivery to ensure that each project is completed
in a safe, timely, and cost effective manner.42
Effect of the Bill
The bill amends s. 337.14(7), F.S., by providing an exemption for airports from the requirement that, for
a project wholly or partially funded by DOT and administered by a local governmental entity, the same
entity may not perform both design services and CEI services. This exemption is identical to the one
currently in place for seaports.
State Arbitration Board
Current Situation
Florida law creates the State Arbitration Board (board) within DOT to facilitate the prompt settlement of
claims43 for additional compensation arising out of construction and maintenance contracts between
DOT and its various contractors.44
Florida law provides that every contractual claim in an amount up to $250,000 per contract or, at the
claimant's option, up to $1 million per contract or, upon agreement of the parties, up to $2 million per
contract, which cannot be resolved by negotiation between DOT and the contractor must be arbitrated
by the board after DOT’s acceptance of the project. However, either party may request that the claim
35 Section 337.165(1)(d), F.S., defines the term “contractor” as any person who bids or applies to bid on work let by the department or
any counterpart agency of any other state or of the Federal Government or who provides professional services to the department or
other such agency. The term “contractor” includes the officers, directors, executives, shareholders active in management, employees,
and agents of the contractor.
36 Section 337.165(1)(a), F.S., defines the term “affiliate” as a predecessor or successor of a contractor under the same, or substantially
the same, control or a group of business entities which are connected or associated so that one entity controls or has the power to
control each of the other business entities. The term “affiliate” includes the officers, directors, executives, shareholders active in
management, employees, and agents of the affiliate. The ownership by one business entity of a controlling interest in another business
entity or a pooling of equipment or income among business entities shall be prima facie evidence that one business entity is an affiliate
of another.
37 S. 337.14, F.S.
38 Design-build prequalification is pursuant to s. 337.11(7), F.S.
39 DOT Topic No.: 375-030-006-c, Conflict of Interest Procedure for Department Contracts. (Aug. 2008)
40 Ch. 2019-153, L.O.F.
41 Email from Darrick McGhee, Florida Airports Council, Re. HB: 1441-Airport Contracts. (Jan. 21, 2020).
42 Email from Darrick McGhee, Florida Airports Council, Re. House Bill: 1441-Contracted Airport Projects. (Feb. 1, 2020).
43 For the purpose of s. 337.185, F.S., the term “claim” means the aggregate of all outstanding claims by a party arising out of a
construction or maintenance contract.
44 S. 337.185(1), F.S.
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be submitted to binding private arbitration. A court of law may not consider the settlement of a claim
until the board arbitration process has been exhausted.45
The board is composed of three members: one member is appointed by the head of DOT;46 one
member is elected by those construction or maintenance companies who are under contract with DOT;
and the third member is chosen by agreement of the other two members. Whenever the third member
has a conflict of interest regarding an affiliation with one of the parties, the other two members select an
alternate member for that hearing. The head of DOT may select an alternative or substitute to serve as
DOT’s member for any hearing or term. Each member serves a two-year term. The board elects a
chair, each term, who is the administrator of the board and custodian of its records.47
An arbitration hearing may be requested by DOT or by a contractor who has a dispute with DOT which,
under the board’s rules,48 may be the subject of arbitration. For all contracts entered into after June 30,
1993, the request must be made to the board within 820 days after the final acceptance of the work.
The board must conduct the hearing within 45 days of the request. The party requesting the board's
consideration must give notice of the hearing to each board member. If the board finds that a third party
is necessary to resolve the dispute, the board may vote to dismiss the claim, which may thereafter be
pursued in accordance with the Florida law.49
All members must be present to conduct a meeting. Upon being called into session, the board must
promptly proceed to a determination of the issue or issues in dispute.50
When a valid contract is in effect defining the rights, duties, and liabilities of the parties with respect to
any matter in dispute, the board may only determine the proper interpretation and application of the
appropriate contract provisions. Any investigation made by less than the whole membership of the
board must be by authority of a written directive by the chair, and the investigation must be summarized
in writing and considered by the board as part of the record of its proceedings.51
The board must hand down its order within 60 days after it is called into session. If all three members of
the board do not agree, the order of the majority constitutes the order of the board.52
The board members may receive compensation for the performance of their duties from administrative
fees received by the board, except that a DOT employee may not receive compensation from the
board. The compensation amount is determined by the board, but may not exceed $125 per hour, up to
$1,000 per day for each member authorized to receive compensation. This does not prevent the
member elected by construction or maintenance companies from being an employee of an association
affiliated with the industry, even if the sole responsibility of that member is service on the board. Travel
expenses for the industry member may be paid by an industry association, if necessary. The board
may allocate funds annually for clerical and other administrative services.53
The party requesting arbitration must pay a fee to the board in accordance with a schedule established
by it, to cover the cost of administration and compensation of the board, not to exceed:
$500 per claim which is $25,000 or less;
$1,000 per claim which is in excess of $25,000 but not exceeding $50,000;
$1,500 per claim which is in excess of $50,000 but not exceeding $100,000;
$2,000 per claim which is in excess of $100,000 but not exceeding $200,000;
$3,000 per claim which is in excess of $200,000 but not exceeding $300,000;
$4,000 per claim which is in excess of $300,000 but not exceeding $400,000; and
45 S. 337.185(1), F.S.
46 The head of DOT is the Secretary of Transportation.
47 S. 337.185(2), F.S.
48 Current State Arbitration Board procedures are available at: https://cdn.ymaws.com/ftba.site-
ym.com/resource/resmgr/website_files/arbitration_board/11-19-20_State_Arbitration_B.pdf (last visited Dec. 22, 2020).
49 S. 337.185(3), F.S.
50 S. 337.185(4), F.S.
51 S. 337.185(5), F.S.
52 S. 337.185(6), F.S.
53 S. 337.185(7), F.S.
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$5,000 per claim which is in excess of $400,000.54
The board in its order may apportion the above fees, and the cost of recording and preparing a
transcript of the hearing, among the parties in accordance with the board's finding of liability.55
Effect of the Bill
The bill revises statutory provisions relating to the State Arbitration Board. The bill defines the following
terms for purposes of the board:
"Claim" -- the aggregate of all outstanding written requests for additional monetary compensation,
time, or other adjustments to the contract, the entitlement or impact of which is disputed with DOT
and could not be resolved by negotiations between DOT and the contractor.
"Contractor" -- a person or firm having a contract for rendering services to DOT relating to the
construction or maintenance of a transportation facility.
"Final acceptance" -- the contractor has completely performed the work provided for under the
contract, DOT or its agent has determined that the contractor has satisfactorily completed the work
provided for under the contract, and DOT or its agent has submitted written notice of final
acceptance to the contractor.
The bill requires that every claim of up to $250,000 per contract that could not be resolved by
negotiations between DOT and the contractor be arbitrated by the board and may not go to private
arbitration. An award issued by the board pursuant to this provision is final and enforceable by a court
of competent jurisdiction.
A contractor may submit a claim greater than $250,000 up to $1 million per contract or, upon
agreement of the parties, up to $2 million per contract to be arbitrated by the board. An award issued
by the board pursuant to this provision is final if a request for a trial de novo56 is not filed within the time
provided by Rule 1.830, Florida Rules of Civil Procedure.57 At the trial de novo, the court may not admit
evidence that there has been an arbitration proceeding, the nature or amount of the award, or any other
matter concerning the conduct of the arbitration proceeding, except that testimony given at an
arbitration hearing may be used for any purpose otherwise permitted by the Florida Evidence Code.58 If
a request for trial de novo is not filed within the time provided, the award issued by the board is final
and enforceable by a court of competent jurisdiction.
An arbitration request may not be made to the board before final acceptance, but must be made within
820 days after final acceptance.
The board must still schedule a hearing within 45 days after an arbitration request and, if possible, must
now conduct the hearing within 90 days after the request instead of the previous 45 day deadline.
The bill authorizes the board to administer oaths and conduct the proceedings as provided by the
Florida Rules of Civil Procedure and the Florida Evidence Code. The bill requires the hearing must be
conducted informally, with the presentation of testimony and evidence being kept to a minimum. The
bill requires matters to be presented to the arbitrators primarily through the statements and arguments
of counsel. The board must address the scope of discovery, presentation of testimony, and evidence at
a preliminary hearing by considering the size, subject matter, and complexity of the dispute. Any party
to the arbitration may petition the board, for good cause shown, to issue subpoenas for the attendance
of witnesses and the production of books, records, documents, and other evidence at the arbitration
54 S. 337.185(8), F.S.
55 S. 337.185(9), F.S.
56 A trial de novo refers to a new trial on the entire case and is conducted as if there had been no trial in the first instance.
https://definitions.uslegal.com/t/trial-de-novo/ (last visited Dec. 22, 2020).
57 Rule 1.830, Florida Rules of Civil Procedure relates to voluntary binding arbitration. The rule provides that a voluntary binding
arbitration decision may be appealed within 30 days after service of the decision on the parties. Appeal is limited to the grounds
specified in s. 44.104(10), F.S.
58 Ch. 90, F.S.
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and may petition the board for orders compelling such attendance and production at the arbitration.
Subpoenas must be served and are enforceable in the manner provided in the Florida Rules of Civil
Procedure.
The board must issue its award within 45 days after the conclusion of the arbitration hearing. If all three
members of the board do not agree, the award agreed to by the majority of the board constitutes the
award of the board.
The board is still composed of three members who are selected in the same manner as in current law.
If a member has a conflict of interest, an alternative member is appointed in the same manner as the
original appointment. Each member serves a 4-year term instead of the current 2-year term. The board
still elects a chair for each term, who is the administrator of the board and custodian of its records.
The presence of all board members is required to conduct a meeting. A meeting may be conducted
either in person or via communications media technology59 in accordance with rules established by the
Administration Commission.60
The bill requires all board members, including DOT employees appointed to serve, to receive
compensation for the performance of their duties from deposits made by the parties based on an
estimate of compensation. All deposits will be held in escrow by the chair in advance of the hearing.
Each member eligible for compensation is compensated at $200 per hour (currently $150 per hour), up
to $1,500 per day (currently up to $1,000 per day). A member must be reimbursed for the actual cost of
his or her travel expenses. The board may annually allocate funds for clerical and other administrative
services.
The bill maintains the filing fees provided in current law keeps the authorization for the board to
apportion the filing fees and the cost of recording and preparing a transcript of the hearing among the
parties in its award.
Central Florida Expressway Authority
Current Situation
Central Florida Expressway Authority
Part III of ch. 348, F.S., creates the Central Florida Expressway Authority (CFX).61 CFX may acquire,
hold, construct, improve, maintain, operate, own, and lease in the capacity of lessor the Central Florida
Expressway System within the geographical boundaries of Orange, Seminole, Lake, Brevard, and
Osceola Counties.62 However, to ensure the continued financial feasibility of the portion of the Wekiva
Parkway to be constructed by DOT, the authority may not, without the prior consent of the secretary of
DOT, construct any extensions, additions, or improvements to the expressway system in Lake
County.63
CFX operates a series of expressways in Central Florida including the East-West Expressway (SR
408), the Apopka Expressway (SR 414), the Central Florida Greenway (SR 417) and the Beachline
Expressway (SR 528).64
Wekiva Parkway
The Wekiva Parkway (SR 429) is a cooperative effort between DOT, CFX, and the Florida Turnpike
Enterprise.65 The Wekiva Parkway will connect to the Central Florida Greenway (SR 417), completing
the beltway around Central Florida, while helping to protect the natural resources surrounding the
59 Section 120.54(5)(b)2., F.S., defines the term “communications media technology” as the electronic transmission of printed matter,
audio, full-motion video, freeze-frame video, compressed video, and digital video by any method available.
60 The Administration Commission has adopted rules pursuant to s. 120.54(5), F.S. These rules are codified in R. 28-109, F.A.C.
61 S. 348.753(1), F.S. CFX was previously known as the Orland-Orange County Expressway Authority.
62 S. 248.754(1)(a), F.S.
63 S. 348.754(1)(c), F.S.
64 CFX, https://www.cfxway.com/ (last visited Feb. 17, 2021).
65 The Florida Turnpike Enterprise is part of DOT and operates Florida’s turnpike system.
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Wekiva River. This estimated $1.6 billion project includes $500 million of non-toll road improvements
including:
Widening seven miles of SR 46 in Lake and Seminole Counties;
Rebuilding the US 441/SR 46 interchange in Mount Dora;
Shifting the CR 46A connection to SR 46 so wildlife can more safely move between habitats;
Providing non-tolled, one-lane service roads parallel to the parkway in part of east Lake and
Seminole Counties; and
Building a 10-mile, multi-use trail along portions of the parkway in Lake and Seminole Counties.
In 2020, 13 miles of the parkway were open to traffic, and some of the non-tolled, roadway
improvements had been made. The entire parkway is scheduled to be open to traffic in 2023.66
Effect of the Bill
The bill amends CFX’s purposes and powers as it relates to obtaining consent from the secretary of
DOT to construct any extensions, additions, or improvements to the expressway system in Lake
County. The bill changes the requirement to obtain consent from the secretary of DOT to a requirement
that CFX consult with the secretary of DOT prior to constructing any extensions, additions, or
improvements to the expressway system in Lake County.
Resource Extraction Reclamation Act
Current Situation
Federal Law
The Federal Mine Safety and Health Act of 1977,67 authorizes the United States Secretary of Labor to
promulgate and enforce safety and health standards regarding working conditions of employees
engaged in underground and surface mineral extraction (mining), related operations, and preparation
and milling of the minerals extracted.68
The Occupational Safety and Health Act of 197069 (OSHAct) gives the United States Secretary of Labor
authority over all working conditions of employees engaged in business affecting commerce except
those conditions with respect to which other Federal agencies exercise statutory authority to prescribe
or enforce regulations affecting occupational safety or health. The OSHAct also provides that states
may operate their own occupational safety and health programs under a plan approved by the United
States Secretary of Labor.70
Pursuant to a 1979 interagency agreement between the federal Mine Safety and Health Administration
and the Occupational Safety and Health Administration (OSHA), "borrow pits" are subject to OSHA
jurisdiction except those borrow pits located on mine property or related to mining.71
State Law
Currently, the term “borrow pit” is not defined in Florida law.
66 Wekiva Parkway, http://www.wekivaparkway.com/ (last visited Feb. 17, 2021).
67 Pub. L. 91-173 as amended by Pub. L. 95-164
68 United States Department of Labor, Mine Safety and Health Administration, Interagency Agreement Between the Mine Safety and
Health Administration and the Occupational Safety and Health Administration, https://www.msha.gov/msha-and-osha-memorandum
(last visited Jan. 21, 2021).
69 Pub. L. 91-596
70 United States Department of Labor, Mine Safety and Health Administration, Interagency Agreement Between the Mine Safety and
Health Administration and the Occupational Safety and Health Administration.
71 Id. For purposes of the federal interagency agreement, the term “borrow pit” means an area of land where the overburden, consisting
of unconsolidated rock, glacial debris, other earth material overlying bedrock is extracted from the surface. Extraction occurs on a one-
time only basis or only intermittently as need occurs, for use as fill materials by the extracting party in the form in which it is extracted.
No milling is involved, except for the use of a scalping screen to remove large rocks, wood and trash. The material is used by the
extracting party more for its bulk than its intrinsic qualities on land which is relatively near the borrow pit.
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Part III of Ch. 378, F.S., contains the Resource Extraction Reclamation Act,72 which prohibits an
operator73 from beginning the process of extracting clay, peat, gravel, sand, or any other solid
substance of commercial value found in natural deposits or in the earth, except fuller's earth clay,
heavy minerals, limestone, or phosphate, which are regulated elsewhere in Ch. 378, F.S., at a new
mine74 without notifying the secretary of the Department of Environmental Protection (DEP) of the
intention to mine.75 The operator's notice of intent to mine must consist of the operator's estimated life
of the mine and the operator's signed acknowledgment of the performance standards provided in s.
378.803, F.S.76
The act also provides that after January 1, 1989, all operators of existing mines for the extraction of
resources as described above must meet the performance standards provided by s. 378.803, F.S., for
any new surface area disturbed at such mines.77
Section 378.803, F.S., provides the following performance standards for the reclamation of other
resources:78
Reclamation must achieve the stormwater, drainage, wetlands, and other surface and
groundwater requirements of DEP and the appropriate water management district.
The final slopes must be at such an angle as to minimize the possibility of slides and may not
exceed the natural angle of repose of the material being mined.
Provisions for safety to persons, wildlife, and adjoining property must be provided.
Any overburden and spoil must be left in a configuration which is in accordance with accepted
soil conservation practices and which is suitable for the proposed future use of the land.
Reclamation must be designed to avoid the collection of water in pools which are, or are likely to
become, noxious, odious, or foul.
All reclamation activities must, to the extent possible, be coordinated with resource extraction
and in any event must be initiated at the earliest practicable time.
Reclamation activities must be consistent with all applicable local government ordinances at
least as stringent as the criteria and standards contained in s. 378.803, F.S.
Effect of the Bill
The bill defines the term “borrow pit” for purposes of the Resource Extraction Reclamation Act, as an
area of land upon which excavation of surface resources has been conducted, is being conducted, or is
planned to be conducted, as the term is commonly used in the trade, and is not considered a mine.
Such resources are limited to soil, organic soil, sand, or clay that can be removed with construction
excavating equipment and loaded on a haul truck with no additional processing.
The bill provides that an operator may not begin the operation of a borrow pit at a new location without
notifying the secretary of DEP of the intention to extract. The operator's notice of intent to extract must
consist of the operator's estimated life of the extraction location and the operator's signed
acknowledgment of the performance standards provided by s. 378.803, F.S.
The bill provides that all operators of existing locations, instead of mines, for the extraction of resources
as described in s. 378.801, F.S., must meet the performance standards provided by s. 378.803, F.S. for
any new surface area disturbed at such locations.
Effective Date
The bill has an effective date of July 1, 2020.
72 S.378.401, F.S.
73 S. 378.403(13), F.S., defines the term “operator” as any person engaged in an operation.
74 Section 348.403(10), F.S., defines the term “mine” as an area of land upon which mining operations have been conducted, are being
conducted, or are planned to be conducted, as the term is commonly used in the trade.
75 S. 378.801(1), F.S.
76 S. 378.801(2), F.S.
77 S. 378.802, F.S.
78 Section 378.403(17), F.S., defines the term “resource” as soil, clay, peat, stone, gravel, sand, limerock, metallic ore, or any other
solid substance of commercial value found in natural deposits on or in the earth, except phosphate, which is regulated by part III.
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B. SECTION DIRECTORY:
Section 1 Creates s. 287.05705, F.S., relating to procurements of road, bridge, and other specified
public construction services.
Section 2 Amends s. 316.003, F.S., providing definitions.
Section 3 Amends s. 316.2397, F.S., relating to certain lights prohibited; exceptions.
Section 4 Amends s. 337.025, F.S., relating to innovative transportation projects.
Section 5 Amends s. 337.14, F.S., relating to application for qualification; certificate of qualification;
restrictions; request for hearing.
Section 6 Amends s. 337.185, F.S., relating to the State Arbitration Board.
Section 7 Amends s. 348.754, F.S., providing the purposes and powers of the Central Florida
Expressway Authority.
Section 8 Amends s. 378.403, F.S., providing definitions.
Section 9 Amends s. 378.801, F.S., relating to other resources; notice of intent to extract required.
Section 10 Amends s. 378.802, F.S., relating to existing extraction locations.
Section 11 Provides an effective date of July 1, 2020.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
The bill requires and increases hourly compensation for members of the State Arbitration Board
from $150 to $200, and increases the daily maximum compensation from $1,000 to $1,500 per
member. However, both current law and the bill require parties bringing arbitrations to the board to
pay filing fees, based on the amount of the dispute, to defray the costs of operating the board.
However, the filing fees do not increase, and it is unknown if they will cover the increased cost of
the board.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
Local governments operating airports may see a reduction in expenditures due to the exemption
from the construction, engineering, and inspection requirements in the bill. However, the cost
savings are associated with specific projects; therefore, this reduction in expenditures is
indeterminate.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
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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 require counties or municipalities to spend funds or take
action requiring the expenditure of funds; reduce the authority that counties or municipalities have to
raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill does not authorize rulemaking, nor does it require rulemaking.
C. DRAFTING ISSUES OR OTHER COMMENTS:
The authorization of blue lights on paving machines, compaction rollers, and portable radar speed
display units may conflict with s. 843.081, F.S., which provides that it is unlawful for a person to use in
or on any nongovernmentally owned vehicle or vessel any flashing or rotating blue light79 unless such
person is a law enforcement officer employed by a federal, state, county, or city law enforcement
agency or is a person appointed by the Governor pursuant to ch. 354, F.S.80,81
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On February 17, 2021, the Tourism, Infrastructure & Energy Subcommittee adopted a strike-all amendment
as amended and reported the bill favorably as a committee substitute. The committee substitute:
Removes a provision from the bill requiring a $50 reduction on the sales tax for every motor vehicle
sold in this state in fiscal years 2021-2022.
Clarifies that the provision regarding the procurements of roads, bridges, and other specified
construction projects applies to all governmental entities.
Limits the bill’s authorization for flashing blue lights on construction vehicles to paving machines
and compaction rollers.
Returns $120 million annual cap on innovative transportation projects to apply to all projects.
Authorizes DOT to request interim financial statements from contractors under certain
circumstances, instead of requiring the contractor to submit them.
Clarifies that the ability factor and the maximum capacity rating apply to the applicant instead of the
project.
Revises and clarifies provisions regarding the State Arbitration Board, including references to the
Florida Rules of Civil Procedure and the Florida Evidence Code, and meetings being conducted via
communications media technology.
Requires CFX to consult with, instead of obtain consent from, the secretary of DOT prior to
constructing any extensions, additions, or improvements to the expressway system in Lake County.
79 Section 843.081(4), F.S., defines the term “flashing or rotating blue light” to include all forms of lights which display a blue light source
or which were designed with the intent of displaying a blue light source whether or not such light is actually in use.
80 S. 384.081(2), F.S.
81 Department of Highway Safety and Motor Vehicles, Agency Analysis of 2021 House Bill 57, p.7. (Feb. 16, 2021).
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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 57 2021
1 A bill to be entitled
2 An act relating to transportation; creating s.
3 287.05705, F.S.; providing that governmental entities
4 may not prohibit certain vendors from responding to
5 competitive solicitations of certain contractual
6 services; providing applicability; amending s.
7 316.003, F.S.; revising the definition of the term
8 "personal delivery device"; amending s. 316.2397,
9 F.S.; authorizing certain equipment to show or display
10 flashing lights; authorizing vehicles to display
11 flashing lights during certain periods under certain
12 conditions; amending s. 337.025, F.S.; revising the
13 application of the cap on innovative transportation
14 projects; amending s. 337.14, F.S.; requiring
15 contractors wishing to bid on certain contracts to
16 first be certified by the Department of Transportation
17 as qualified; revising requirements for applying for
18 and issuing a certificate of qualification; revising
19 provisions regarding interim financial statements;
20 providing construction with respect to submission and
21 approval of an application for such certificate;
22 exempting airports from certain restrictions regarding
23 entities performing design and construction
24 engineering and inspection services; amending s.
25 337.185, F.S.; revising and providing definitions;
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26 revising requirements for arbitration of certain
27 contracts by the State Arbitration Board; revising
28 requirements regarding arbitration requests, hearings,
29 procedures, and awards; revising membership and
30 meeting requirements; revising compensation of board
31 members; amending s. 348.754, F.S.; prohibiting the
32 Central Florida Expressway Authority from performing
33 certain activities in Lake County without prior
34 consultation with the secretary of the department;
35 amending s. 378.403, F.S.; defining the term "borrow
36 pit"; amending s. 378.801, F.S.; prohibiting operation
37 of a borrow pit at a new location without notifying
38 the Secretary of Environmental Protection of the
39 intent to extract; conforming provisions; amending s.
40 378.802, F.S.; revising application of provisions to
41 exclude existing mines; providing an effective date.
42
43 Be It Enacted by the Legislature of the State of Florida:
44
45 Section 1. Section 287.05705, Florida Statutes, is created
46 to read:
47 287.05705 Procurements of road, bridge, and other
48 specified public construction services.—
49 (1) With respect to competitive solicitations for the
50 procurement of contractual services that are limited to the
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51 classes of work for which the Department of Transportation
52 issues certificates of qualification pursuant to s. 337.14,
53 which services do not involve the construction, remodeling,
54 repair, or improvement of any building, a governmental entity
55 procuring such services may not prohibit a response from a
56 vendor possessing a valid certificate of qualification under s.
57 337.14 or license under chapter 489 corresponding to the
58 contractual services being procured.
59 (2) This section applies to all competitive solicitations
60 issued by a governmental entity on or after October 1, 2021.
61 Section 2. Paragraph (b) of subsection (56) of section
62 316.003, Florida Statutes, is amended to read:
63 316.003 Definitions.—The following words and phrases, when
64 used in this chapter, shall have the meanings respectively
65 ascribed to them in this section, except where the context
66 otherwise requires:
67 (56) PERSONAL DELIVERY DEVICE.—An electrically powered
68 device that:
69 (b) Weighs less than 550 80 pounds, excluding cargo;
70
71 A personal delivery device is not considered a vehicle unless
72 expressly defined by law as a vehicle. A mobile carrier is not
73 considered a personal delivery device.
74 Section 3. Subsection (10) of section 316.2397, Florida
75 Statutes, is renumbered as subsection (12), subsections (2) and
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76 (7) are amended, and new subsections (10) and (11) are added to
77 that section, to read:
78 316.2397 Certain lights prohibited; exceptions.—
79 (2) It is expressly prohibited for any vehicle or
80 equipment, except police vehicles and road construction
81 equipment specified in subsections (10) and (11), to show or
82 display blue lights. However, vehicles owned, operated, or
83 leased by the Department of Corrections or any county
84 correctional agency may show or display blue lights when
85 responding to emergencies.
86 (7) Flashing lights are prohibited on vehicles except:
87 (a) As a means of indicating a right or left turn, to
88 change lanes, or to indicate that the vehicle is lawfully
89 stopped or disabled upon the highway;
90 (b) When a motorist intermittently flashes his or her
91 vehicle's headlamps at an oncoming vehicle notwithstanding the
92 motorist's intent for doing so;
93 (c) During periods of extreme low visibility on roadways
94 with a posted speed limit of 55 mph or higher; and
95 (d)(c) For the lamps authorized under subsections (1),
96 (2), (3), (4), and (9), s. 316.2065, or s. 316.235(6) which may
97 flash.
98 (10) Paving machines or compaction rollers within a work
99 zone area on roadways with a posted speed limit of 55 mph or
100 higher may show or display flashing blue lights while performing
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101 paving operations or where a hazard exists.
102 (11) Under the direction of a law enforcement officer,
103 portable radar speed display units in advance of a work zone
104 area on roadways with a posted speed limit of 55 mph or higher
105 may show or display flashing red and blue lights when workers
106 are present.
107 Section 4. Section 337.025, Florida Statutes, is amended
108 to read:
109 337.025 Innovative transportation projects; department to
110 establish program.—
111 (1) The department may establish a program for
112 transportation projects demonstrating innovative techniques of
113 highway and bridge design, construction, maintenance, and
114 finance which have the intended effect of measuring resiliency
115 and structural integrity and controlling time and cost increases
116 on construction projects. Such techniques may include, but are
117 not limited to, state-of-the-art technology for pavement,
118 safety, and other aspects of highway and bridge design,
119 construction, and maintenance; innovative bidding and financing
120 techniques; accelerated construction procedures; and those
121 techniques that have the potential to reduce project life cycle
122 costs. To the maximum extent practical, the department must use
123 the existing process to award and administer construction and
124 maintenance contracts. When specific innovative techniques are
125 to be used, the department is not required to adhere to those
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126 provisions of law that would prevent, preclude, or in any way
127 prohibit the department from using the innovative technique.
128 However, before using an innovative technique that is
129 inconsistent with another provision of law, the department must
130 document in writing the need for the exception and identify what
131 benefits the traveling public and the affected community are
132 anticipated to receive. The department may enter into no more
133 than $120 million in contracts annually for the purposes
134 authorized by this section.
135 (2) The annual cap on contracts provided in subsection (1)
136 does shall not apply to:
137 (a) Turnpike enterprise projects, and turnpike enterprise
138 projects shall not be counted toward the department's annual
139 cap.
140 (b) Low-bid design-build milling and resurfacing contracts
141 Transportation projects funded by the American Recovery and
142 Reinvestment Act of 2009.
143 Section 5. Subsections (1), (4), and (7) of section
144 337.14, Florida Statutes, are amended to read:
145 337.14 Application for qualification; certificate of
146 qualification; restrictions; request for hearing.—
147 (1) Any contractor desiring to bid for the performance of
148 any construction contract in excess of $250,000 which the
149 department proposes to let must first be certified by the
150 department as qualified pursuant to this section and rules of
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151 the department. The rules of the department must address the
152 qualification of contractors to bid on construction contracts in
153 excess of $250,000 and must include requirements with respect to
154 the equipment, past record, experience, financial resources, and
155 organizational personnel of the applying contractor which are
156 necessary to perform the specific class of work for which the
157 contractor seeks certification. Any contractor who desires to
158 bid on contracts in excess of $50 million and who is not
159 qualified and in good standing with the department as of January
160 1, 2019, must first be certified by the department as qualified
161 and desires to bid on contracts in excess of $50 million must
162 have satisfactorily completed two projects, each in excess of
163 $15 million, for the department or for any other state
164 department of transportation. The department may limit the
165 dollar amount of any contract upon which a contractor is
166 qualified to bid or the aggregate total dollar volume of
167 contracts such contractor is allowed to have under contract at
168 any one time. Each applying contractor seeking qualification to
169 bid on construction contracts in excess of $250,000 shall
170 furnish the department a statement under oath, on such forms as
171 the department may prescribe, setting forth detailed information
172 as required on the application. Each application for
173 certification must be accompanied by audited, certified
174 financial statements prepared in accordance with generally
175 accepted accounting principles and auditing standards by a
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176 certified public accountant licensed in this state or another
177 state. The audited, certified financial statements must be for
178 the applying contractor and must have been prepared the latest
179 annual financial statement of the applying contractor completed
180 within the immediately preceding last 12 months. The department
181 may not consider any financial information of the parent entity
182 of the applying contractor, if any. The department may not
183 certify as qualified any applying contractor that fails to
184 submit the audited, certified financial statements required by
185 this subsection. If the application or the annual financial
186 statement shows the financial condition of the applying
187 contractor more than 4 months before prior to the date on which
188 the application is received by the department, a reviewed
189 interim financial statement or an interim audited, certified
190 financial statement prepared in accordance with generally
191 accepted accounting principles and auditing standards by a
192 certified public accountant licensed in this state or another
193 state may be requested by the department statement and an
194 updated application must be submitted. The interim financial
195 statements, if requested, statement must cover the period from
196 the end date of the annual statement and must show the financial
197 condition of the applying contractor no more than 4 months
198 before prior to the date that the interim financial statements
199 are statement is received by the department. However, upon the
200 request of the applying contractor, an application and
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201 accompanying annual or interim financial statement received by
202 the department within 15 days after either 4-month period under
203 this subsection shall be considered timely. Each required annual
204 or interim financial statement must be audited and accompanied
205 by the opinion of a certified public accountant. An applying
206 contractor desiring to bid exclusively for the performance of
207 construction contracts with proposed budget estimates of less
208 than $1 million may submit reviewed annual or reviewed interim
209 financial statements prepared by a certified public accountant.
210 The information required by this subsection is confidential and
211 exempt from s. 119.07(1). The department shall act upon the
212 application for qualification within 30 days after the
213 department determines that the application is complete. The
214 department may waive the requirements of this subsection for
215 projects having a contract price of $500,000 or less if the
216 department determines that the project is of a noncritical
217 nature and the waiver will not endanger public health, safety,
218 or property.
219 (4) If the applicant is found to possess the prescribed
220 qualifications, the department shall issue to him or her a
221 certificate of qualification that, unless thereafter revoked by
222 the department for good cause, will be valid for a period of 18
223 months after the date of the applicant's financial statement or
224 such shorter period as the department prescribes. Submission of
225 an application and subsequent approval do shall not affect
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226 expiration of the certificate of qualification, the ability
227 factor of the applicant, or the maximum capacity rating of the
228 applicant. If the department finds that an application is
229 incomplete or contains inadequate information or information
230 that cannot be verified, the department may request in writing
231 that the applicant provide the necessary information to complete
232 the application or provide the source from which any information
233 in the application may be verified. If the applicant fails to
234 comply with the initial written request within a reasonable
235 period of time as specified therein, the department shall
236 request the information a second time. If the applicant fails to
237 comply with the second request within a reasonable period of
238 time as specified therein, the application shall be denied.
239 (7) A "contractor" as defined in s. 337.165(1)(d) or his
240 or her "affiliate" as defined in s. 337.165(1)(a) qualified with
241 the department under this section may not also qualify under s.
242 287.055 or s. 337.105 to provide testing services, construction,
243 engineering, and inspection services to the department. This
244 limitation does not apply to any design-build prequalification
245 under s. 337.11(7) and does not apply when the department
246 otherwise determines by written order entered at least 30 days
247 before advertisement that the limitation is not in the best
248 interests of the public with respect to a particular contract
249 for testing services, construction, engineering, and inspection
250 services. This subsection does not authorize a contractor to
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251 provide testing services, or provide construction, engineering,
252 and inspection services, to the department in connection with a
253 construction contract under which the contractor is performing
254 any work. Notwithstanding any other provision of law to the
255 contrary, for a project that is wholly or partially funded by
256 the department and administered by a local governmental entity,
257 except for a seaport listed in s. 311.09 or an airport as
258 defined in s. 332.004, the entity performing design and
259 construction engineering and inspection services may not be the
260 same entity.
261 Section 6. Section 337.185, Florida Statutes, is amended
262 to read:
263 (Substantial rewording of section. See
264 s. 337.185, F.S., for present text.)
265 337.185 State Arbitration Board.—
266 (1) To facilitate the prompt resolution of claims arising
267 out of or in connection with a construction or maintenance
268 contract with the department, the Legislature has established
269 the State Arbitration Board, referred to in this section as the
270 "board."
271 (2) As used in this section, the term:
272 (a) "Claim" means the aggregate of all outstanding written
273 requests for additional monetary compensation, time, or other
274 adjustments to the contract, the entitlement or impact of which
275 is disputed with the department and could not be resolved by
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276 negotiations between the department and the contractor.
277 (b) "Contractor" means a person or firm having a contract
278 for rendering services to the department relating to the
279 construction or maintenance of a transportation facility.
280 (c) "Final acceptance" means that the contractor has
281 completely performed the work provided for under the contract,
282 the department or its agent has determined that the contractor
283 has satisfactorily completed the work provided for under the
284 contract, and the department or its agent has submitted written
285 notice of final acceptance to the contractor.
286 (3) Every claim in an amount of up to $250,000 per
287 contract that could not be resolved by negotiations between the
288 department and the contractor shall be arbitrated by the board.
289 An award issued by the board pursuant to this subsection is
290 final and enforceable by a court of competent jurisdiction.
291 (4) The contractor may submit a claim greater than
292 $250,000 up to $1 million per contract or, upon agreement of the
293 parties, up to $2 million per contract to be arbitrated by the
294 board. An award issued by the board pursuant to this subsection
295 is final if a request for a trial de novo is not filed within
296 the time provided by Rule 1.830, Florida Rules of Civil
297 Procedure. At the trial de novo, the court may not admit
298 evidence that there has been an arbitration proceeding, the
299 nature or amount of the award, or any other matter concerning
300 the conduct of the arbitration proceeding, except that testimony
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301 given at an arbitration hearing may be used for any purpose
302 otherwise permitted by the Florida Evidence Code. If a request
303 for trial de novo is not filed within the time provided, the
304 award issued by the board is final and enforceable by a court of
305 competent jurisdiction.
306 (5) An arbitration request may not be made to the board
307 before final acceptance but must be made to the board within 820
308 days after final acceptance.
309 (6) The board shall schedule a hearing within 45 days
310 after an arbitration request and, if possible, shall conduct the
311 hearing within 90 days after the request. The board may
312 administer oaths and conduct the proceedings as provided by the
313 Florida Rules of Civil Procedure and the Florida Evidence Code.
314 The hearing may be conducted informally. Presentation of
315 testimony and evidence shall be kept to a minimum, and matters
316 shall be presented to the board primarily through the statements
317 and arguments of counsel. The board shall address the scope of
318 discovery, presentation of testimony, and evidence at a
319 preliminary hearing by considering the size, subject matter, and
320 complexity of the dispute. Any party to the arbitration may
321 petition the board, for good cause shown, to issue subpoenas for
322 the attendance of witnesses and the production of books,
323 records, documents, and other evidence at the arbitration and
324 may petition the board for orders compelling such attendance and
325 production at the arbitration. Subpoenas shall be served and are
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326 enforceable in the manner provided in the Florida Rules of Civil
327 Procedure.
328 (7) The board must issue an award within 45 days after the
329 conclusion of the arbitration hearing. If all three members of
330 the board do not agree, the award agreed to by the majority of
331 the board shall constitute the award of the board.
332 (8) The board shall be composed of three members. The
333 first member shall be appointed by the Secretary of
334 Transportation, and the second member shall be elected by those
335 construction or maintenance companies that are under contract
336 with the department. The third member shall be chosen by
337 agreement of the first and second members. If the first or
338 second member has a conflict of interest regarding affiliation
339 with one of the parties to an arbitration hearing, the
340 appointing entity shall appoint an alternate member for that
341 hearing. If the third member has such a conflict of interest,
342 the first and second members shall select an alternate member.
343 Each member shall serve a 4-year term. The board shall elect a
344 chair for each term, who shall be the administrator of the board
345 and custodian of its records.
346 (9) The presence of all board members is required to
347 conduct a meeting either in person or by means of communications
348 media technology used in accordance with rules adopted by the
349 Administration Commission under s. 120.54(5).
350 (10) The members of the board may receive compensation for
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351 the performance of their duties from deposits made by the
352 parties based on an estimate of compensation by the board,
353 except that no employee of the department may receive
354 compensation from the board. All deposits shall be held in
355 escrow in advance of the hearing. Each member eligible for
356 compensation shall be compensated at a rate of $200 per hour, up
357 to a maximum of $1,500 per day. Members of the board are
358 entitled to receive per diem and travel expenses pursuant to s.
359 112.061. The board may allocate funds annually for clerical and
360 other administrative services.
361 (11) To cover the cost of administration and initial
362 compensation of the board, the party requesting arbitration
363 shall pay a filing fee to the board, according to a schedule
364 established by the board, of:
365 (a) Up to $500 for a claim that is $25,000 or less.
366 (b) Up to $1,000 for a claim that is more than $25,000 but
367 is $50,000 or less.
368 (c) Up to $1,500 for a claim that is more than $50,000 but
369 is $100,000 or less.
370 (d) Up to $2,000 for a claim that is more than $100,000
371 but is $200,000 or less.
372 (e) Up to $3,000 for a claim that is more than $200,000
373 but is $300,000 or less.
374 (f) Up to $4,000 for a claim that is more than $300,000
375 but is $400,000 or less.
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376 (g) Up to $5,000 for a claim that is more than $400,000.
377
378 The board may apportion the filing fees and the cost of
379 recording and preparing a transcript of the hearing among the
380 parties in its award.
381 Section 7. Paragraph (c) of subsection (1) of section
382 348.754, Florida Statutes, is amended to read:
383 348.754 Purposes and powers.—
384 (1)
385 (c) Notwithstanding any other provision of this section to
386 the contrary, to ensure the continued financial feasibility of
387 the portion of the Wekiva Parkway to be constructed by the
388 department, the authority may not, without the prior
389 consultation with consent of the secretary of the department,
390 construct any extensions, additions, or improvements to the
391 expressway system in Lake County.
392 Section 8. Subsections (3) through (19) of section
393 378.403, Florida Statutes, are renumbered as subsections (4)
394 through (20), respectively, and a new subsection (3) is added to
395 that section to read:
396 378.403 Definitions.—As used in this part, the term:
397 (3) "Borrow pit" means an area of land upon which
398 excavation of surface resources has been conducted, is being
399 conducted, or is planned to be conducted, as the term is
400 commonly used in the trade, and is not considered a mine. Such
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401 resources are limited to soil, organic soil, sand, or clay that
402 can be removed with construction excavating equipment and loaded
403 on a haul truck with no additional processing.
404 Section 9. Section 378.801, Florida Statutes, is amended
405 to read:
406 378.801 Other resources; notice of intent to extract mine
407 required.—
408 (1) An No operator may not begin the operation of a borrow
409 pit, or the process of extracting clay, peat, gravel, sand, or
410 any other solid substance of commercial value found in natural
411 deposits or in the earth, except fuller's earth clay, heavy
412 minerals, limestone, or phosphate, which are regulated elsewhere
413 in this chapter, at a new location mine without notifying the
414 secretary of the intention to extract mine.
415 (2) The operator's notice of intent to extract mine shall
416 consist of the operator's estimated life of the extraction
417 location mine and the operator's signed acknowledgment of the
418 performance standards provided by s. 378.803.
419 Section 10. Section 378.802, Florida Statutes, is amended
420 to read:
421 378.802 Existing extraction locations mines.—After January
422 1, 1989, all operators of existing locations mines for the
423 extraction of resources as described in s. 378.801 shall meet
424 the performance standards provided by s. 378.803 for any new
425 surface area disturbed at such locations mines.
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426 Section 11. This act shall take effect July 1, 2021.
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CS/HB 57 by Rep. Andrade
TRANSPORTATION
AMENDMENT SUMMARY
APRIL 19, 2021
Amendment 1 by Rep. Andrade (Strike-All):
Adds the following provisions to the bill:
• Authorizes counties and municipalities to convey roads to community
development districts under certain circumstances.
• Amends the definition of autocycle.
• Authorizes flashing green, amber, and red lights on construction vehicles under
certain circumstances.
• Provides that if a motor carrier requires safety improvements on a commercial
motor vehicle, this does not change an owner-operators employment status.
• Requires certain notifications to the Department of Highway Safety and Motor
Vehicles (DHSMV) regarding salvage titles to be made on specified forms.
• Defines “electric vertical takeoff and landing aircraft.”
• Clarifies that permanent registration stickers for for-hire vehicles are required
only for rental vehicles.
• Revises provisions regarding insurance and surety bond requirements for motor
vehicle dealers.
• Allows the Department of Transportation (DOT) and its contractors to extract
materials from borrow pits meeting statutory requirements already in the bill.
• Authorizes revenues from high-occupancy toll lanes and express lanes to be
used for certain public transportation projects.
• Authorizes the metropolitan planning organization in Miami-Dade County to
assess membership fees.
• Repeals the inactive Northwest Florida Transportation Corridor Authority.
• Makes clarifying changes regarding the Tampa Bay Area Regional Transit
Authority.
• Extends the maximum term for the Jacksonville Transportation Authority to enter
into leases from 40 years to 99 years.
• Requires DOT to create and implement an electronic database of outdoor
advertising permits.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 57 (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 Andrade offered the following:
3
4 Amendment (with title amendment)
5 Remove everything after the enacting clause and insert:
6 Section 1. Section 177.107, Florida Statutes, is created
7 to read:
8 177.107 Closing and abandonment of roads; optional
9 conveyance to a community development district; traffic control
10 jurisdiction.—
11 (1) The governing body of a municipality or county may
12 abandon the roads and rights-of-way dedicated in a recorded
13 residential subdivision plat and simultaneously convey its
14 interest in such roads, rights-of-way, and appurtenant drainage
15 facilities to a community development district established under
16 chapter 190 in which the subdivision is located, if all of the
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Amendment No. 1
17 following conditions are met:
18 (a) The community development district has requested the
19 abandonment and conveyance by written resolution for the purpose
20 of converting the subdivision to a gated neighborhood with
21 monitored public access.
22 (b) The community development district has received
23 approval for the conveyance by a vote of two-thirds of the
24 landowners who are subject to the non-ad valorem assessments of
25 the community development district and who are present by person
26 or proxy at a properly noticed landowners meeting.
27 (c) The community development district has executed an
28 interlocal agreement with the municipality or county, as
29 applicable, requiring the community development district to do
30 all of the following:
31 1. Maintain the roads and any associated drainage, street
32 lighting, or sidewalks identified in the interlocal agreement to
33 municipal or county standards, as applicable.
34 2. Every 5 years, conduct a reserve study of the roads and
35 any associated drainage, street lighting, or sidewalks
36 identified in the interlocal agreement.
37 3. Levy annual special assessments in amounts sufficient
38 to maintain the roads and any drainage, street lighting, or
39 sidewalks identified in the interlocal agreement to municipal or
40 county standards, as applicable.
41 4. Annually fund the amounts set forth in the reserve
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Amendment No. 1
42 study.
43 (2) The community development district shall install,
44 operate, maintain, repair, and replace all signs, signals,
45 markings, striping, guardrails, and other traffic control
46 devices necessary or useful for the roads unless an agreement
47 has been entered into between the municipality or county and the
48 community development district, as authorized under s.
49 316.006(2)(b) and (3)(b), respectively, expressly providing that
50 the municipality or county has traffic control jurisdiction.
51 (3) Upon abandonment of the roads and rights-of-way and
52 the conveyance thereof to the community development district,
53 the community development district shall have all the rights,
54 title, and interest in the roads and rights-of-way, including
55 all appurtenant drainage facilities, as were previously vested
56 in the municipality or county. Thereafter, the community
57 development district shall hold the roads and rights-of-way in
58 trust for the benefit of the public and owners of the property
59 in the subdivision and shall operate, maintain, repair, and from
60 time to time replace and reconstruct the roads and any
61 associated street lighting, sidewalks, or drainage facilities
62 identified in the interlocal agreement as necessary to ensure
63 their use and enjoyment by the public and property owners,
64 tenants, and residents of the subdivision and their guests and
65 invitees.
66 (4) The provisions of this section are supplemental and
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Amendment No. 1
67 additional to the powers of municipalities and counties.
68 Section 2. Section 287.05705, Florida Statutes, is created
69 to read:
70 287.05705 Procurements of road, bridge, and other
71 specified public construction services.—
72 (1) With respect to competitive solicitations for the
73 procurement of contractual services that are limited to the
74 classes of work for which the Department of Transportation
75 issues certificates of qualification pursuant to s. 337.14,
76 which services do not involve the construction, remodeling,
77 repair, or improvement of any building, a governmental entity
78 procuring such services may not prohibit a response from a
79 vendor possessing a valid certificate of qualification under s.
80 337.14 or license under chapter 489 corresponding to the
81 contractual services being procured.
82 (2) This section applies to all competitive solicitations
83 issued by a governmental entity on or after October 1, 2021.
84 Section 3. Subsections subsection (2) and paragraph (b) of
85 subsection (56), are amended, to read:
86 316.003 Definitions.—The following words and phrases, when
87 used in this chapter, shall have the meanings respectively
88 ascribed to them in this section, except where the context
89 otherwise requires:
90 (2) AUTOCYCLE.—A three-wheeled motorcycle that has two
91 wheels in the front and one wheel in the back; is equipped with
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92 a roll cage or roll hoops, a seat belt for each occupant,
93 antilock brakes that meet the requirements of Federal Motor
94 Vehicle Safety Standard No. 122, a steering mechanism wheel, and
95 seating that does not require the operator to straddle or sit
96 astride it; and is manufactured in accordance with the
97 applicable federal motorcycle safety standards in 49 C.F.R. part
98 571 by a manufacturer registered with the National Highway
99 Traffic Safety Administration.
100 (56) PERSONAL DELIVERY DEVICE.—An electrically powered
101 device that:
102 (b) Weighs less than 550 80 pounds, excluding cargo;
103
104 A personal delivery device is not considered a vehicle unless
105 expressly defined by law as a vehicle. A mobile carrier is not
106 considered a personal delivery device.
107 Section 4. Subsections (5) and (7) of section 316.2397,
108 Florida Statutes, are amended to read:
109 316.2397 Certain lights prohibited; exceptions.—
110 (5) Road maintenance and construction equipment and
111 vehicles may display flashing white lights or flashing white
112 strobe lights when in operation and where a hazard exists.
113 Construction equipment in a work zone on roadways with a posted
114 speed limit of 55 miles per hour or higher may show or display a
115 combination of flashing green, amber, and red lights in
116 conjunction with periods when workers are present. Additionally,
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Amendment No. 1
117 school buses and vehicles that are used to transport farm
118 workers may display flashing white strobe lights.
119 (7) Flashing lights are prohibited on vehicles except:
120 (a) As a means of indicating a right or left turn, to
121 change lanes, or to indicate that the vehicle is lawfully
122 stopped or disabled upon the highway;
123 (b) When a motorist intermittently flashes his or her
124 vehicle's headlamps at an oncoming vehicle notwithstanding the
125 motorist's intent for doing so;
126 (c) During periods of extreme low visibility on roadways
127 with a posted speed limit of 55 mph or higher; and
128 (d)(c) For the lamps authorized under subsections (1),
129 (2), (3), (4), and (9), s. 316.2065, or s. 316.235(6) which may
130 flash.
131 Section 5. Subsection (14) is added to section 316.302,
132 Florida Statutes, to read:
133 316.302 Commercial motor vehicles; safety regulations;
134 transporters and shippers of hazardous materials; enforcement;
135 motor carrier safety improvements.—
136 (14)(a) The deployment, implementation, or use of a motor
137 carrier safety improvement by or as required by a motor carrier,
138 its related entity, or a third-party, including by contract,
139 shall not be considered when evaluating an individual's status
140 as an employee or independent contractor, or as a jointly
141 employed employee under any state law.
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142 (b) For the purpose of this subsection, a motor carrier
143 safety improvement shall mean any device, equipment, software,
144 technology, procedure, training, policy, program, or operational
145 practice intended and primarily used to improve or facilitate:
146 1. Compliance with traffic safety or motor carrier safety
147 laws;
148 2. Safety of a motor vehicle;
149 3. Safety of the operator of a motor vehicle; or
150 4. Safety of third-party users of public roadways.
151 Section 6. Paragraph (b) of subsection (3) of section
152 319.30, Florida Statutes, is amended to read:
153 319.30 Definitions; dismantling, destruction, change of
154 identity of motor vehicle or mobile home; salvage.—
155 (3)
156 (b) The owner, including persons who are self-insured, of
157 a motor vehicle or mobile home that is considered to be salvage
158 shall, within 72 hours after the motor vehicle or mobile home
159 becomes salvage, forward the title to the motor vehicle or
160 mobile home to the department for processing. However, an
161 insurance company that pays money as compensation for the total
162 loss of a motor vehicle or mobile home shall obtain the
163 certificate of title for the motor vehicle or mobile home, make
164 the required notification to the National Motor Vehicle Title
165 Information System, and, within 72 hours after receiving such
166 certificate of title, forward such title by the United States
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Amendment No. 1
167 Postal Service, by another commercial delivery service, or by
168 electronic means, when such means are made available by the
169 department, to the department for processing. The owner or
170 insurance company, as applicable, may not dispose of a vehicle
171 or mobile home that is a total loss before it obtains a salvage
172 certificate of title or certificate of destruction from the
173 department. Effective January 1, 2020:
174 1. Thirty days after payment of a claim for compensation
175 pursuant to this paragraph, the insurance company may receive a
176 salvage certificate of title or certificate of destruction from
177 the department if the insurance company is unable to obtain a
178 properly assigned certificate of title from the owner or
179 lienholder of the motor vehicle or mobile home, if the motor
180 vehicle or mobile home does not carry an electronic lien on the
181 title and the insurance company:
182 a. Has obtained the release of all liens on the motor
183 vehicle or mobile home;
184 b. Has attested on a form provided by the department that
185 provided proof of payment of the total loss claim has been
186 distributed; and
187 c. Has attested on a form provided by the department and
188 provided an affidavit on letterhead signed by the insurance
189 company or its authorized agent stating the attempts that have
190 been made to obtain the title from the owner or lienholder and
191 further stating that all attempts are to no avail. The form
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Amendment No. 1
192 affidavit must include a request that the salvage certificate of
193 title or certificate of destruction be issued in the insurance
194 company's name due to payment of a total loss claim to the owner
195 or lienholder. The attempts to contact the owner may be by
196 written request delivered in person or by first-class mail with
197 a certificate of mailing to the owner's or lienholder's last
198 known address.
199 2. If the owner or lienholder is notified of the request
200 for title in person, the insurance company must provide an
201 affidavit attesting to the in-person request for a certificate
202 of title.
203 3. The request to the owner or lienholder for the
204 certificate of title must include a complete description of the
205 motor vehicle or mobile home and the statement that a total loss
206 claim has been paid on the motor vehicle or mobile home.
207 Section 7. Paragraph (b) of subsection (1) of section
208 320.06, Florida Statutes, as amended by section 1 of chapter
209 2020-181, Laws of Florida, is amended to read:
210 320.06 Registration certificates, license plates, and
211 validation stickers generally.—
212 (1)
213 (b)1. Registration license plates bearing a graphic symbol
214 and the alphanumeric system of identification shall be issued
215 for a 10-year period. At the end of the 10-year period, upon
216 renewal, the plate shall be replaced. The department shall
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217 extend the scheduled license plate replacement date from a 6-
218 year period to a 10-year period. The fee for such replacement is
219 $28, $2.80 of which shall be paid each year before the plate is
220 replaced, to be credited toward the next $28 replacement fee.
221 The fees shall be deposited into the Highway Safety Operating
222 Trust Fund. A credit or refund may not be given for any prior
223 years' payments of the prorated replacement fee if the plate is
224 replaced or surrendered before the end of the 10-year period,
225 except that a credit may be given if a registrant is required by
226 the department to replace a license plate under s.
227 320.08056(8)(a). With each license plate, a validation sticker
228 shall be issued showing the owner's birth month, license plate
229 number, and the year of expiration or the appropriate renewal
230 period if the owner is not a natural person. The validation
231 sticker shall be placed on the upper right corner of the license
232 plate. The license plate and validation sticker shall be issued
233 based on the applicant's appropriate renewal period. The
234 registration period is 12 months, the extended registration
235 period is 24 months, and all expirations occur based on the
236 applicant's appropriate registration period. Rental vehicles
237 taxed pursuant to s. 320.08(6)(a) may elect a permanent
238 registration period, provided payment of the appropriate license
239 taxes and fees occurs annually. A vehicle that has an
240 apportioned registration shall be issued an annual license plate
241 and a cab card that denote the declared gross vehicle weight for
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242 each apportioned jurisdiction in which the vehicle is authorized
243 to operate.
244 2. In order to retain the efficient administration of the
245 taxes and fees imposed by this chapter, the 80-cent fee increase
246 in the replacement fee imposed by chapter 2009-71, Laws of
247 Florida, is negated as provided in s. 320.0804.
248 Section 8. Subsection (3) and paragraph (a) of subsection
249 (10) of section 320.27, Florida Statutes, are amended to read:
250 320.27 Motor vehicle dealers.—
251 (3) APPLICATION AND FEE.—The application for the license
252 shall be in such form as may be prescribed by the department and
253 shall be subject to such rules with respect thereto as may be so
254 prescribed by it. Such application shall be verified by oath or
255 affirmation and shall contain a full statement of the name and
256 birth date of the person or persons applying therefor; the name
257 of the firm or copartnership, with the names and places of
258 residence of all members thereof, if such applicant is a firm or
259 copartnership; the names and places of residence of the
260 principal officers, if the applicant is a body corporate or
261 other artificial body; the name of the state under whose laws
262 the corporation is organized; the present and former place or
263 places of residence of the applicant; and prior business in
264 which the applicant has been engaged and the location thereof.
265 Such application shall describe the exact location of the place
266 of business and shall state whether the place of business is
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267 owned by the applicant and when acquired, or, if leased, a true
268 copy of the lease shall be attached to the application. The
269 applicant shall certify that the location provides an adequately
270 equipped office and is not a residence; that the location
271 affords sufficient unoccupied space upon and within which
272 adequately to store all motor vehicles offered and displayed for
273 sale; and that the location is a suitable place where the
274 applicant can in good faith carry on such business and keep and
275 maintain books, records, and files necessary to conduct such
276 business, which shall be available at all reasonable hours to
277 inspection by the department or any of its inspectors or other
278 employees. The applicant shall certify that the business of a
279 motor vehicle dealer is the principal business which shall be
280 conducted at that location. The application shall contain a
281 statement that the applicant is either franchised by a
282 manufacturer of motor vehicles, in which case the name of each
283 motor vehicle that the applicant is franchised to sell shall be
284 included, or an independent (nonfranchised) motor vehicle
285 dealer. The application shall contain other relevant information
286 as may be required by the department, including evidence that
287 the applicant is insured under a garage liability insurance
288 policy or a general liability insurance policy coupled with a
289 business automobile policy, which shall include, at a minimum,
290 $25,000 combined single-limit liability coverage including
291 bodily injury and property damage protection and $10,000
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292 personal injury protection. However, a salvage motor vehicle
293 dealer as defined in subparagraph (1)(c)5. is exempt from the
294 requirements for garage liability insurance and personal injury
295 protection insurance on those vehicles that cannot be legally
296 operated on roads, highways, or streets in this state. Franchise
297 dealers must submit a garage liability insurance policy, and all
298 other dealers must submit a garage liability insurance policy or
299 a general liability insurance policy coupled with a business
300 automobile policy. Such policy shall be for the license period,
301 and evidence of a new or continued policy shall be delivered to
302 the department at the beginning of each license period. A
303 licensee shall deliver to the department, in the manner
304 prescribed by the department, within 10 calendar days after any
305 renewal or continuation of or change in such policy or within 10
306 calendar days after any issuance of a new policy, a copy of the
307 renewed, continued, changed, or new policy. Upon making initial
308 application, the applicant shall pay to the department a fee of
309 $300 in addition to any other fees required by law. Applicants
310 may choose to extend the licensure period for 1 additional year
311 for a total of 2 years. An initial applicant shall pay to the
312 department a fee of $300 for the first year and $75 for the
313 second year, in addition to any other fees required by law. An
314 applicant for renewal shall pay to the department $75 for a 1-
315 year renewal or $150 for a 2-year renewal, in addition to any
316 other fees required by law. Upon making an application for a
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317 change of location, the person shall pay a fee of $50 in
318 addition to any other fees now required by law. The department
319 shall, in the case of every application for initial licensure,
320 verify whether certain facts set forth in the application are
321 true. Each applicant, general partner in the case of a
322 partnership, or corporate officer and director in the case of a
323 corporate applicant, must file a set of fingerprints with the
324 department for the purpose of determining any prior criminal
325 record or any outstanding warrants. The department shall submit
326 the fingerprints to the Department of Law Enforcement for state
327 processing and forwarding to the Federal Bureau of Investigation
328 for federal processing. The actual cost of state and federal
329 processing shall be borne by the applicant and is in addition to
330 the fee for licensure. The department may issue a license to an
331 applicant pending the results of the fingerprint investigation,
332 which license is fully revocable if the department subsequently
333 determines that any facts set forth in the application are not
334 true or correctly represented.
335 (10) SURETY BOND OR IRREVOCABLE LETTER OF CREDIT
336 REQUIRED.—
337 (a) Annually, before any license shall be issued to a
338 motor vehicle dealer, the applicant-dealer of new or used motor
339 vehicles shall deliver to the department a good and sufficient
340 surety bond or irrevocable letter of credit, executed by the
341 applicant-dealer as principal, in the sum of $25,000. A licensee
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342 shall deliver to the department, in the manner prescribed by the
343 department, within 10 calendar days after any renewal or
344 continuation of or change in such surety bond or irrevocable
345 letter of credit or within 10 calendar days after any issuance
346 of a new surety bond or irrevocable letter of credit, a copy of
347 such renewed, continued, changed, or new surety bond or
348 irrevocable letter of credit.
349 Section 9. Subsections (4) through (8) of section 330.27,
350 Florida Statutes, are renumbered as subsections (5) through (9),
351 respectively, and subsection (4) is added to that section to
352 read:
353 330.27 Definitions, when used in ss. 330.29-330.39.—
354 (4) “Electric vertical takeoff and landing aircraft” means
355 a type of aircraft that uses electric power to hover, take off,
356 and land vertically.
357 Section 10. Section 337.025, Florida Statutes, is amended
358 to read:
359 337.025 Innovative transportation projects; department to
360 establish program.—
361 (1) The department may establish a program for
362 transportation projects demonstrating innovative techniques of
363 highway and bridge design, construction, maintenance, and
364 finance which have the intended effect of measuring resiliency
365 and structural integrity and controlling time and cost increases
366 on construction projects. Such techniques may include, but are
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Amendment No. 1
367 not limited to, state-of-the-art technology for pavement,
368 safety, and other aspects of highway and bridge design,
369 construction, and maintenance; innovative bidding and financing
370 techniques; accelerated construction procedures; and those
371 techniques that have the potential to reduce project life cycle
372 costs. To the maximum extent practical, the department must use
373 the existing process to award and administer construction and
374 maintenance contracts. When specific innovative techniques are
375 to be used, the department is not required to adhere to those
376 provisions of law that would prevent, preclude, or in any way
377 prohibit the department from using the innovative technique.
378 However, before using an innovative technique that is
379 inconsistent with another provision of law, the department must
380 document in writing the need for the exception and identify what
381 benefits the traveling public and the affected community are
382 anticipated to receive. The department may enter into no more
383 than $120 million in contracts annually for the purposes
384 authorized by this section.
385 (2) The annual cap on contracts provided in subsection (1)
386 does shall not apply to:
387 (a) Turnpike enterprise projects, and turnpike enterprise
388 projects shall not be counted toward the department's annual
389 cap.
390 (b) Low-bid design-build milling and resurfacing contracts
391 Transportation projects funded by the American Recovery and
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Amendment No. 1
392 Reinvestment Act of 2009.
393 Section 11. Section 337.0262, Florida Statutes, is created
394 to read:
395 337.0262 Purchase and use of clay, peat, gravel, sand, or
396 any other solid substance extracted from borrow pits.—
397 (1) The department, and any contractor or subcontractor of
398 the department, may not purchase or use any clay, peat, gravel,
399 sand, or other solid substance extracted from a borrow pit as
400 defined in s. 378.403 unless:
401 (a) Certification is provided to the department,
402 contractor, or subcontractor by the operator of the borrow pit
403 that it is in compliance with the notice requirements and
404 substantive requirements of s. 378.801; and
405 (b) The operator of the borrow pit is in compliance with
406 the performance standards in s. 378.803, including, but not
407 limited to, providing proof of currently valid permits required
408 by the Department of Environmental Protection and the
409 appropriate water management district.
410 (2) All contracts and purchase orders executed by the
411 department and all subcontracts and purchase orders executed by
412 contractors or subcontractors after July 1, 2021, must include
413 specific requirements for compliance with this section.
414 (3) In the event that the department determines that
415 substances are being obtained and used from a borrow pit that is
416 not in compliance with this section, the department must cease
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Amendment No. 1
417 to accept any substances from that borrow pit within 48 hours
418 after such determination. The department may resume acceptance
419 of substances from the borrow pit once the borrow pit is in
420 compliance with this section.
421 Section 12. Subsections (1), (4), and (7) of section
422 337.14, Florida Statutes, are amended to read:
423 337.14 Application for qualification; certificate of
424 qualification; restrictions; request for hearing.—
425 (1) Any contractor desiring to bid for the performance of
426 any construction contract in excess of $250,000 which the
427 department proposes to let must first be certified by the
428 department as qualified pursuant to this section and rules of
429 the department. The rules of the department must address the
430 qualification of contractors to bid on construction contracts in
431 excess of $250,000 and must include requirements with respect to
432 the equipment, past record, experience, financial resources, and
433 organizational personnel of the applying contractor which are
434 necessary to perform the specific class of work for which the
435 contractor seeks certification. Any contractor who desires to
436 bid on contracts in excess of $50 million and who is not
437 qualified and in good standing with the department as of January
438 1, 2019, must first be certified by the department as qualified
439 and desires to bid on contracts in excess of $50 million must
440 have satisfactorily completed two projects, each in excess of
441 $15 million, for the department or for any other state
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Amendment No. 1
442 department of transportation. The department may limit the
443 dollar amount of any contract upon which a contractor is
444 qualified to bid or the aggregate total dollar volume of
445 contracts such contractor is allowed to have under contract at
446 any one time. Each applying contractor seeking qualification to
447 bid on construction contracts in excess of $250,000 shall
448 furnish the department a statement under oath, on such forms as
449 the department may prescribe, setting forth detailed information
450 as required on the application. Each application for
451 certification must be accompanied by audited, certified
452 financial statements prepared in accordance with generally
453 accepted accounting principles and auditing standards by a
454 certified public accountant licensed in this state or another
455 state. The audited, certified financial statements must be for
456 the applying contractor and must have been prepared the latest
457 annual financial statement of the applying contractor completed
458 within the immediately preceding last 12 months. The department
459 may not consider any financial information of the parent entity
460 of the applying contractor, if any. The department may not
461 certify as qualified any applying contractor that fails to
462 submit the audited, certified financial statements required by
463 this subsection. If the application or the annual financial
464 statement shows the financial condition of the applying
465 contractor more than 4 months before prior to the date on which
466 the application is received by the department, a reviewed
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467 interim financial statement or an interim audited, certified
468 financial statement prepared in accordance with generally
469 accepted accounting principles and auditing standards by a
470 certified public accountant licensed in this state or another
471 state may be requested by the department statement and an
472 updated application must be submitted. The interim financial
473 statements, if requested, statement must cover the period from
474 the end date of the annual statement and must show the financial
475 condition of the applying contractor no more than 4 months
476 before prior to the date that the interim financial statements
477 are statement is received by the department. However, upon the
478 request of the applying contractor, an application and
479 accompanying annual or interim financial statement received by
480 the department within 15 days after either 4-month period under
481 this subsection shall be considered timely. Each required annual
482 or interim financial statement must be audited and accompanied
483 by the opinion of a certified public accountant. An applying
484 contractor desiring to bid exclusively for the performance of
485 construction contracts with proposed budget estimates of less
486 than $1 million may submit reviewed annual or reviewed interim
487 financial statements prepared by a certified public accountant.
488 The information required by this subsection is confidential and
489 exempt from s. 119.07(1). The department shall act upon the
490 application for qualification within 30 days after the
491 department determines that the application is complete. The
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492 department may waive the requirements of this subsection for
493 projects having a contract price of $500,000 or less if the
494 department determines that the project is of a noncritical
495 nature and the waiver will not endanger public health, safety,
496 or property.
497 (4) If the applicant is found to possess the prescribed
498 qualifications, the department shall issue to him or her a
499 certificate of qualification that, unless thereafter revoked by
500 the department for good cause, will be valid for a period of 18
501 months after the date of the applicant's financial statement or
502 such shorter period as the department prescribes. Submission of
503 an application and subsequent approval do shall not affect
504 expiration of the certificate of qualification, the ability
505 factor of the applicant, or the maximum capacity rating of the
506 applicant. If the department finds that an application is
507 incomplete or contains inadequate information or information
508 that cannot be verified, the department may request in writing
509 that the applicant provide the necessary information to complete
510 the application or provide the source from which any information
511 in the application may be verified. If the applicant fails to
512 comply with the initial written request within a reasonable
513 period of time as specified therein, the department shall
514 request the information a second time. If the applicant fails to
515 comply with the second request within a reasonable period of
516 time as specified therein, the application shall be denied.
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Amendment No. 1
517 (7) A "contractor" as defined in s. 337.165(1)(d) or his
518 or her "affiliate" as defined in s. 337.165(1)(a) qualified with
519 the department under this section may not also qualify under s.
520 287.055 or s. 337.105 to provide testing services, construction,
521 engineering, and inspection services to the department. This
522 limitation does not apply to any design-build prequalification
523 under s. 337.11(7) and does not apply when the department
524 otherwise determines by written order entered at least 30 days
525 before advertisement that the limitation is not in the best
526 interests of the public with respect to a particular contract
527 for testing services, construction, engineering, and inspection
528 services. This subsection does not authorize a contractor to
529 provide testing services, or provide construction, engineering,
530 and inspection services, to the department in connection with a
531 construction contract under which the contractor is performing
532 any work. Notwithstanding any other provision of law to the
533 contrary, for a project that is wholly or partially funded by
534 the department and administered by a local governmental entity,
535 except for a seaport listed in s. 311.09 or an airport as
536 defined in s. 332.004, the entity performing design and
537 construction engineering and inspection services may not be the
538 same entity.
539 Section 13. Section 337.185, Florida Statutes, is amended
540 to read:
541 (Substantial rewording of section. See
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Amendment No. 1
542 s. 337.185, F.S., for present text.)
543 337.185 State Arbitration Board.—
544 (1) To facilitate the prompt resolution of claims arising
545 out of or in connection with a construction or maintenance
546 contract with the department, the Legislature has established
547 the State Arbitration Board, referred to in this section as the
548 "board."
549 (2) As used in this section, the term:
550 (a) "Claim" means the aggregate of all outstanding written
551 requests for additional monetary compensation, time, or other
552 adjustments to the contract, the entitlement or impact of which
553 is disputed with the department and could not be resolved by
554 negotiations between the department and the contractor.
555 (b) "Contractor" means a person or firm having a contract
556 for rendering services to the department relating to the
557 construction or maintenance of a transportation facility.
558 (c) "Final acceptance" means that the contractor has
559 completely performed the work provided for under the contract,
560 the department or its agent has determined that the contractor
561 has satisfactorily completed the work provided for under the
562 contract, and the department or its agent has submitted written
563 notice of final acceptance to the contractor.
564 (3) Every claim in an amount of up to $250,000 per
565 contract that could not be resolved by negotiations between the
566 department and the contractor shall be arbitrated by the board.
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Amendment No. 1
567 An award issued by the board pursuant to this subsection is
568 final and enforceable by a court of competent jurisdiction.
569 (4) The contractor may submit a claim greater than
570 $250,000 up to $1 million per contract or, upon agreement of the
571 parties, up to $2 million per contract to be arbitrated by the
572 board. An award issued by the board pursuant to this subsection
573 is final if a request for a trial de novo is not filed within
574 the time provided by Rule 1.830, Florida Rules of Civil
575 Procedure. At the trial de novo, the court may not admit
576 evidence that there has been an arbitration proceeding, the
577 nature or amount of the award, or any other matter concerning
578 the conduct of the arbitration proceeding, except that testimony
579 given at an arbitration hearing may be used for any purpose
580 otherwise permitted by the Florida Evidence Code. If a request
581 for trial de novo is not filed within the time provided, the
582 award issued by the board is final and enforceable by a court of
583 competent jurisdiction.
584 (5) An arbitration request may not be made to the board
585 before final acceptance but must be made to the board within 820
586 days after final acceptance.
587 (6) The board shall schedule a hearing within 45 days
588 after an arbitration request and, if possible, shall conduct the
589 hearing within 90 days after the request. The board may
590 administer oaths and conduct the proceedings as provided by the
591 Florida Rules of Civil Procedure and the Florida Evidence Code.
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592 The hearing may be conducted informally. Presentation of
593 testimony and evidence shall be kept to a minimum, and matters
594 shall be presented to the board primarily through the statements
595 and arguments of counsel. The board shall address the scope of
596 discovery, presentation of testimony, and evidence at a
597 preliminary hearing by considering the size, subject matter, and
598 complexity of the dispute. Any party to the arbitration may
599 petition the board, for good cause shown, to issue subpoenas for
600 the attendance of witnesses and the production of books,
601 records, documents, and other evidence at the arbitration and
602 may petition the board for orders compelling such attendance and
603 production at the arbitration. Subpoenas shall be served and are
604 enforceable in the manner provided in the Florida Rules of Civil
605 Procedure.
606 (7) The board must issue an award within 45 days after the
607 conclusion of the arbitration hearing. If all three members of
608 the board do not agree, the award agreed to by the majority of
609 the board shall constitute the award of the board.
610 (8) The board shall be composed of three members. The
611 first member shall be appointed by the Secretary of
612 Transportation, and the second member shall be elected by those
613 construction or maintenance companies that are under contract
614 with the department. The third member shall be chosen by
615 agreement of the first and second members. If the first or
616 second member has a conflict of interest regarding affiliation
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617 with one of the parties to an arbitration hearing, the
618 appointing entity shall appoint an alternate member for that
619 hearing. If the third member has such a conflict of interest,
620 the first and second members shall select an alternate member.
621 Each member shall serve a 4-year term. The board shall elect a
622 chair for each term, who shall be the administrator of the board
623 and custodian of its records.
624 (9) The presence of all board members is required to
625 conduct a meeting either in person or by means of communications
626 media technology used in accordance with rules adopted by the
627 Administration Commission under s. 120.54(5).
628 (10) The members of the board may receive compensation for
629 the performance of their duties from deposits made by the
630 parties based on an estimate of compensation by the board,
631 except that no employee of the department may receive
632 compensation from the board. All deposits shall be held in
633 escrow in advance of the hearing. Each member eligible for
634 compensation shall be compensated at a rate of $200 per hour, up
635 to a maximum of $1,500 per day. Members of the board are
636 entitled to receive per diem and travel expenses pursuant to s.
637 112.061. The board may allocate funds annually for clerical and
638 other administrative services.
639 (11) To cover the cost of administration and initial
640 compensation of the board, the party requesting arbitration
641 shall pay a filing fee to the board, according to a schedule
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642 established by the board, of:
643 (a) Up to $500 for a claim that is $25,000 or less.
644 (b) Up to $1,000 for a claim that is more than $25,000 but
645 is $50,000 or less.
646 (c) Up to $1,500 for a claim that is more than $50,000 but
647 is $100,000 or less.
648 (d) Up to $2,000 for a claim that is more than $100,000
649 but is $200,000 or less.
650 (e) Up to $3,000 for a claim that is more than $200,000
651 but is $300,000 or less.
652 (f) Up to $4,000 for a claim that is more than $300,000
653 but is $400,000 or less.
654 (g) Up to $5,000 for a claim that is more than $400,000.
655
656 The board may apportion the filing fees and the cost of
657 recording and preparing a transcript of the hearing among the
658 parties in its award.
659 Section 14. Subsection (3) of section 338.166, Florida
660 Statutes, is amended to read:
661 338.166 High-occupancy toll lanes or express lanes.—
662 (3) Any remaining toll revenue from the high-occupancy
663 toll lanes or express lanes shall be used by the department for
664 the construction, maintenance, or improvement of any road or to
665 support public transportation projects that benefit the
666 operation of high-occupancy toll lanes or express lanes on the
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Amendment No. 1
667 State Highway System within the county or counties in which the
668 toll revenues were collected or to support express bus service
669 on the facility where the toll revenues were collected.
670 Section 15. Paragraphs (f) and (i) of subsection (6) of
671 section 339.175, Florida Statutes, is amended to read:
672 339.175 Metropolitan planning organization.—
673 (6) POWERS, DUTIES, AND RESPONSIBILITIES.—The powers,
674 privileges, and authority of an M.P.O. are those specified in
675 this section or incorporated in an interlocal agreement
676 authorized under s. 163.01. Each M.P.O. shall perform all acts
677 required by federal or state laws or rules, now and subsequently
678 applicable, which are necessary to qualify for federal aid. It
679 is the intent of this section that each M.P.O. shall be involved
680 in the planning and programming of transportation facilities,
681 including, but not limited to, airports, intercity and high-
682 speed rail lines, seaports, and intermodal facilities, to the
683 extent permitted by state or federal law.
684 (f)1. The department shall allocate to each M.P.O., for
685 the purpose of accomplishing its transportation planning and
686 programming duties, an appropriate amount of federal
687 transportation planning funds.
688 2. In a county as defined in s. 125.011(1), the M.P.O. may
689 not assess any fees for municipalities, counties, or other
690 governmental entities that are members of the M.P.O.
691 (i) There is created the Tampa Bay Area Regional Transit
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Amendment No. 1
692 Authority Metropolitan Planning Organization Chairs Coordinating
693 Committee is created within the Tampa Bay Area Regional Transit
694 Authority, composed of the M.P.O.'s serving Citrus, Hernando,
695 Hillsborough, Manatee, Pasco, Pinellas, Polk, and Sarasota
696 Counties. The authority shall provide administrative support and
697 direction to the committee. The committee must, at a minimum:
698 1. Coordinate transportation projects deemed to be
699 regionally significant by the committee.
700 2. Review the impact of regionally significant land use
701 decisions on the region.
702 3. Review all proposed regionally significant
703 transportation projects in the respective transportation
704 improvement programs which affect more than one of the M.P.O.'s
705 represented on the committee.
706 4. Institute a conflict resolution process to address any
707 conflict that may arise in the planning and programming of such
708 regionally significant projects.
709 Section 16. Part III of chapter 343, Florida Statutes,
710 consisting of sections 343.80, 343.805, 343.81, 343.82, 343.83,
711 343.835, 343.836, 343.84, 343.85, 343.87, 343.875, 343.88,
712 343.881, 343.884, and 343.89, Florida Statutes, is repealed.
713 Section 17. Notwithstanding any other law, the Northwest
714 Florida Transportation Corridor Authority is dissolved. The
715 authority shall discharge or make provision for the authority's
716 debts, obligations, and other liabilities; settle and close the
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717 authority's activities and affairs; and provide for distribution
718 of the authority's assets, or the proceeds of such assets, such
719 that each local general-purpose government represented on the
720 authority's board receives a distribution generally in
721 proportion to each entity's contribution to the acquisition of
722 the assets.
723 Section 18. Paragraph (b) of subsection (2) and
724 subsections (8) and (9) of section 343.92, Florida Statutes, are
725 amended to read:
726 343.92 Tampa Bay Area Regional Transit Authority.—
727 (2) The governing board of the authority shall consist of
728 13 voting members appointed no later than 45 days after the
729 creation of the authority.
730 (b) The 13 voting members of the board shall be as
731 follows:
732 1. The county commissions of Hernando, Hillsborough,
733 Manatee, Pasco, and Pinellas Counties shall each appoint one
734 county commissioner to the board. Members appointed under this
735 subparagraph shall serve 2-year terms with not more than three
736 consecutive terms being served by any person. If a member under
737 this subparagraph leaves elected office, a vacancy exists on the
738 board to be filled as provided in this subparagraph within 90
739 days.
740 2.a. Two members of the board shall be the mayor, or the
741 mayor's designated alternate, of the largest municipality within
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742 the service area of each of the following independent transit
743 agencies or their legislatively created successor agencies:
744 Pinellas Suncoast Transit Authority and Hillsborough Area
745 Regional Transit Authority. The largest municipality is that
746 municipality with the largest population as determined by the
747 most recent United States Decennial Census.
748 b. The mayor's designated alternate must be an elected
749 member of the municipality's city council and approved as the
750 mayor's designated alternate by the municipality's city council.
751 In the event the mayor is unable to attend a meeting, the
752 mayor's designated alternate shall attend the meeting on the
753 mayor's behalf and has the full right to vote.
754 3. The following independent transit agencies or their
755 legislatively created successor agencies shall each appoint from
756 the membership of their governing bodies one member to the
757 board: Pinellas Suncoast Transit Authority and Hillsborough Area
758 Regional Transit Authority. Each member appointed under this
759 subparagraph shall serve a 2-year term with not more than three
760 consecutive terms being served by any person. If a member no
761 longer meets the transit authority's criteria for appointment, a
762 vacancy exists on the board, which must be filled as provided in
763 this subparagraph within 90 days.
764 4. The Governor shall appoint to the board four members
765 from the regional business community, each of whom must reside
766 in one of the counties governed by the authority and may not be
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767 an elected official. Of the members initially appointed under
768 this subparagraph, one shall serve a 1-year term, two shall
769 serve 2-year terms, and one shall serve a term as the initial
770 chair as provided in subsection (5). Thereafter, a member
771 appointed under this subparagraph shall serve a 2-year term with
772 not more than three consecutive terms being served by any
773 person.
774
775 Appointments may be staggered to avoid mass turnover at the end
776 of any 2-year or 4-year period. A vacancy during a term shall be
777 filled within 90 days in the same manner as the original
778 appointment for the remainder of the unexpired term.
779 (8) A simple majority Seven members of the board shall
780 constitute a quorum, and a simple majority of the voting members
781 present shall be necessary for any action to be taken by the
782 board the vote of seven members is necessary for any action to
783 be taken by the authority. The authority may meet upon the
784 constitution of a quorum. A vacancy does not impair the right of
785 a quorum of the board to exercise all rights and the ability to
786 perform all duties of the authority.
787 (9) Beginning July 1, 2017, the board must evaluate the
788 abolishment, continuance, modification, or establishment of the
789 following committees:
790 (a) Planning committee.
791 (b) Policy committee.
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792 (c) Finance committee.
793 (d) Citizens advisory committee.
794 (e) Tampa Bay Area Regional Transit Authority Metropolitan
795 Planning Organization Chairs Coordinating Committee.
796 (f) Transit management committee.
797 (g) Technical advisory committee.
798
799 The board must submit its recommendations for abolishment,
800 continuance, modification, or establishment of the committees to
801 the President of the Senate and the Speaker of the House of
802 Representatives before the beginning of the 2018 Regular
803 Session.
804 Section 19. Paragraphs (e), (f), and (g) of subsection (3)
805 of section 343.922, Florida Statutes, are amended to read:
806 343.922 Powers and duties.—
807 (3)
808 (e) The authority shall present the original regional
809 transit development plan and updates to the governing bodies of
810 the counties within the designated region, to the TBARTA
811 Metropolitan Planning Organization Chairs Coordinating
812 Committee, and to the legislative delegation members
813 representing those counties within 90 days after adoption.
814 (f) The authority shall coordinate plans and projects with
815 the TBARTA Metropolitan Planning Organization Chairs
816 Coordinating Committee, to the extent practicable, and
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817 participate in the regional M.P.O. planning process to ensure
818 regional comprehension of the authority's mission, goals, and
819 objectives.
820 (g) The authority shall provide administrative support and
821 direction to the TBARTA Metropolitan Planning Organization
822 Chairs Coordinating Committee as provided in s. 339.175(6)(i).
823 Section 20. Paragraph (c) of subsection (1) of section
824 348.754, Florida Statutes, is amended to read:
825 348.754 Purposes and powers.—
826 (1)
827 (c) Notwithstanding any other provision of this section to
828 the contrary, to ensure the continued financial feasibility of
829 the portion of the Wekiva Parkway to be constructed by the
830 department, the authority may not, without the prior
831 consultation with consent of the secretary of the department,
832 construct any extensions, additions, or improvements to the
833 expressway system in Lake County.
834 Section 21. Paragraph (d) of subsection (2) of section
835 349.04, Florida Statutes, is amended to read:
836 349.04 Purposes and powers.—
837 (2) The authority is hereby granted, and shall have and
838 may exercise all powers necessary, appurtenant, convenient, or
839 incidental to the carrying out of the aforesaid purposes,
840 including, but without being limited to, the right and power:
841 (d) To enter into and make leases for terms not exceeding
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Amendment No. 1
842 99 40 years, as either lessee or lessor, in order to carry out
843 the right to lease as set forth in this chapter.
844 Section 22. Subsections (3) through (19) of section
845 378.403, Florida Statutes, are renumbered as subsections (4)
846 through (20), respectively, and a new subsection (3) is added to
847 that section to read:
848 378.403 Definitions.—As used in this part, the term:
849 (3) "Borrow pit" means an area of land upon which
850 excavation of surface resources has been conducted, is being
851 conducted, or is planned to be conducted, as the term is
852 commonly used in the trade, and is not considered a mine. Such
853 resources are limited to soil, organic soil, sand, or clay that
854 can be removed with construction excavating equipment and loaded
855 on a haul truck with no additional processing.
856 Section 23. Section 378.801, Florida Statutes, is amended
857 to read:
858 378.801 Other resources; notice of intent to extract mine
859 required.—
860 (1) An No operator may not begin the operation of a borrow
861 pit, or the process of extracting clay, peat, gravel, sand, or
862 any other solid substance of commercial value found in natural
863 deposits or in the earth, except fuller's earth clay, heavy
864 minerals, limestone, or phosphate, which are regulated elsewhere
865 in this chapter, at a new location mine without notifying the
866 secretary of the intention to extract mine.
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Amendment No. 1
867 (2) The operator's notice of intent to extract mine shall
868 consist of the operator's estimated life of the extraction
869 location mine and the operator's signed acknowledgment of the
870 performance standards provided by s. 378.803.
871 Section 24. Section 378.802, Florida Statutes, is amended
872 to read:
873 378.802 Existing extraction locations mines.—After January
874 1, 1989, all operators of existing locations mines for the
875 extraction of resources as described in s. 378.801 shall meet
876 the performance standards provided by s. 378.803 for any new
877 surface area disturbed at such locations mines.
878 Section 25. Subsection (5) of section 479.07, Florida
879 Statutes, is amended to read:
880 479.07 Sign permits.—
881 (5)(a) For each permit issued, the department shall
882 furnish to the applicant a serially numbered permanent metal
883 permit tag. The permittee is responsible for maintaining a valid
884 permit tag on each permitted sign facing at all times. The tag
885 shall be securely attached to the upper 50 percent of the sign
886 structure, and attached in such a manner as to be plainly
887 visible from the main-traveled way. The permit tag must be
888 properly and permanently displayed at the permitted site within
889 30 days after the date of permit issuance. If the permittee
890 fails to erect a completed sign on the permitted site within 270
891 days after the date on which the permit was issued, the permit
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892 will be void, and the department may not issue a new permit to
893 that permittee for the same location for 270 days after the date
894 on which the permit becomes void.
895 (b) If a permit tag is lost, stolen, or destroyed, the
896 permittee to whom the tag was issued must apply to the
897 department for a replacement tag. The department shall establish
898 a service fee for replacement tags in an amount that will
899 recover the actual cost of providing the replacement tag. Upon
900 receipt of the application accompanied by the service fee, the
901 department shall issue a replacement permit tag.
902 (c)1. As soon as practicable, the department shall create
903 and implement a publicly accessible electronic database to
904 include all permits issued by the department. At a minimum, the
905 database must include the name and contact information of the
906 permit operator, the structure identification number or numbers,
907 the panel or face identification number or numbers, the latitude
908 and longitude of the permitted sign, the compass bearing, images
909 of the permitted sign once constructed, and the most recent date
910 the department visually inspected the permitted sign.
911 2. Once the department creates and implements the publicly
912 accessible electronic database:
913 a. The department may not furnish permanent metal permit
914 tags or replacement tags to permittees;
915 b. The department may not enforce the provisions relating
916 to permanent metal permit tags or replacement tags specified in
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917 paragraphs (a) and (b); and
918 c. Permittees are not required to return permit tags to
919 the department as provided in subsection (8).
920 Section 26. Paragraph (e) of subsection (3) and subsection
921 (4) of section 330.30, Florida Statutes, are amended to read:
922 330.30 Approval of airport sites; registration and
923 licensure of airports.—
924 (3) EXEMPTIONS.—The provisions of this section do not
925 apply to:
926 (e) An airport which meets the criteria of s. 330.27(8) s.
927 330.27(7) used exclusively for aerial application or spraying of
928 crops on a seasonal basis, not to include any licensed airport
929 where permanent crop aerial application or spraying facilities
930 are installed, if the period of operation does not exceed 30
931 days per calendar year. Such proposed airports, which will be
932 located within 3 miles of existing airports or approved airport
933 sites, shall establish safe air-traffic patterns with such
934 existing airports or approved airport sites, by memorandums of
935 understanding, or by letters of agreement between the parties
936 representing the airports or sites.
937 (4) EXCEPTIONS.—Private airports with 10 or more based
938 aircraft may request to be inspected and licensed by the
939 department. Private airports licensed according to this
940 subsection shall be considered private airports as defined in s.
941 330.27(6) s. 330.27(5) in all other respects.
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Amendment No. 1
942 Section 27. This act shall take effect July 1, 2021.
943
944 -----------------------------------------------------
945 T I T L E A M E N D M E N T
946 Remove everything before the enacting clause and insert:
947 An act relating to transportation; creating s. 177.107, F.S.;
948 authorizing governing bodies of municipalities and counties to
949 abandon and convey interests in certain roads and rights-of-way
950 to community development districts under specified conditions;
951 specifying duties for community development districts relating
952 to such roads and rights-of-way; providing for traffic control
953 jurisdiction of such roads; specifying that the community
954 development district has all rights, title, and interest in such
955 roads and rights-of-way upon abandonment and conveyance;
956 requiring community development districts to thereafter hold
957 such roads and rights-of-way in trust; providing construction;
958 creating s. 287.05705, F.S.; providing that governmental
959 entities may not prohibit certain vendors from responding to
960 competitive solicitations of certain contractual services;
961 providing applicability; amending s. 316.003, F.S.; revising the
962 definitions of the terms "autocycle" and "personal delivery
963 device"; amending s. 316.2397, F.S.; authorizing certain
964 equipment to show or display flashing lights; authorizing
965 vehicles to display flashing lights during certain periods under
966 certain conditions; amending s. 316.302, F.S.; providing that
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967 certain required motor carrier safety improvements may not be
968 considered when evaluating an individual's employment status;
969 defining the term "motor carrier safety improvements"; amending
970 s. 319.30, F.S.; revising conditions under which insurance
971 companies are authorized to receive salvage certificates of
972 title or certificates of destruction for motor vehicles and
973 mobile homes from the Department of Highway Safety and Motor
974 Vehicles; amending s. 320.06, F.S.; authorizing short-term
975 rental vehicles to elect permanent registration; amending s.
976 320.27, F.S.; requiring motor vehicle dealer licensees to
977 deliver copies of renewed, continued, changed, or new insurance
978 policies to the department within specified timeframes under
979 certain conditions; requiring such licensees to deliver copies
980 of renewed, continued, changed, or new surety bonds or
981 irrevocable letters of credit to the department within specified
982 timeframes under certain conditions; amending s. 330.27, F.S.;
983 defining the term "electric vertical takeoff and landing
984 aircraft"; amending s. 337.025, F.S.; revising the application
985 of the cap on innovative transportation projects; amending s.
986 337.0262, F.S.; prohibiting the Department of Transportation and
987 contractors and subcontractors of the department from purchasing
988 specified substances from a borrow pit unless specified
989 conditions are satisfied; requiring certain contracts,
990 subcontracts, and purchase orders to require compliance with the
991 prohibition; requiring the department to cease acceptance of
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Amendment No. 1
992 substances from a borrow pit under certain conditions;
993 authorizing the department to resume acceptance of such
994 substances under certain conditions; amending s. 337.14, F.S.;
995 requiring contractors wishing to bid on certain contracts to
996 first be certified by the Department of Transportation as
997 qualified; revising requirements for applying for and issuing a
998 certificate of qualification; revising provisions regarding
999 interim financial statements; providing construction with
1000 respect to submission and approval of an application for such
1001 certificate; exempting airports from certain restrictions
1002 regarding entities performing design and construction
1003 engineering and inspection services; amending s. 337.185, F.S.;
1004 revising and providing definitions; revising requirements for
1005 arbitration of certain contracts by the State Arbitration Board;
1006 revising requirements regarding arbitration requests, hearings,
1007 procedures, and awards; revising membership and meeting
1008 requirements; revising compensation of board members; amending
1009 s. 338.166, F.S.; authorizing the use of specified toll revenue
1010 to support certain public transportation projects; amending s.
1011 339.175, F.S.; deleting a provision prohibiting certain
1012 metropolitan planning organizations from assessing any fees for
1013 municipalities, counties, or other governmental entities that
1014 are members of the organization; renaming the Tampa Bay Area
1015 Regional Transit Authority Metropolitan Planning Organization
1016 Chairs Coordinating Committee as the Chairs Coordinating
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Amendment No. 1
1017 Committee; deleting a requirement that the Tampa Bay Area
1018 Regional Transit Authority provide the committee with
1019 administrative support and direction; repealing part III of ch.
1020 343, F.S., relating to the creation and operation of the
1021 Northwest Florida Transportation Corridor Authority; dissolving
1022 the Northwest Florida Transportation Corridor Authority and
1023 requiring the authority to discharge its liabilities, settle and
1024 close its activities and affairs, and provide for the
1025 distribution of the authority's assets; amending s. 343.92,
1026 F.S.; providing that a mayor's designated alternate may be a
1027 member of the governing board of the Tampa Bay Area Regional
1028 Transit Authority; requiring that the alternate be an elected
1029 member of the city council of the mayor's municipality and be
1030 approved by the municipality's city council; requiring a mayor's
1031 designated alternate to attend meetings under certain
1032 circumstances with full voting rights; providing that a simple
1033 majority of board members constitutes a quorum and that a simple
1034 majority of those members present is necessary for any action to
1035 be taken; deleting obsolete language; amending s. 343.922, F.S.;
1036 revising a provision requiring the authority to present the
1037 regional transit development plan and updates to specified
1038 entities; deleting a provision requiring that the authority
1039 coordinate plans and projects with the TBARTA Metropolitan
1040 Planning Organization Chairs Coordinating Committee and
1041 participate in the regional M.P.O. planning process to ensure
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1042 regional comprehension of the authority's mission, goals, and
1043 objectives; deleting a provision requiring that the authority
1044 provide administrative support and direction to the TBARTA
1045 Metropolitan Planning Organization Chairs Coordinating
1046 Committee; amending s. 348.754, F.S.; prohibiting the Central
1047 Florida Expressway Authority from performing certain activities
1048 in Lake County without prior consultation with the secretary of
1049 the department; amending s. 349.04, F.S.; increasing the maximum
1050 term of a lease into which the Jacksonville Transportation
1051 Authority may enter; amending s. 378.403, F.S.; defining the
1052 term "borrow pit"; amending s. 378.801, F.S.; prohibiting
1053 operation of a borrow pit at a new location without notifying
1054 the Secretary of the Department of Environmental Protection of
1055 the intent to extract; conforming provisions; amending s.
1056 378.802, F.S.; revising application of provisions to exclude
1057 existing mines; amending s. 479.07, F.S.; requiring the
1058 Department of Transportation to create and implement a publicly
1059 accessible electronic database for sign permit information;
1060 specifying requirements for the database; prohibiting the
1061 department from furnishing permanent metal permit tags or
1062 replacement tags and from enforcing specified provisions once
1063 the department creates and implements the database; specifying
1064 that permittees are not required to return permit tags to the
1065 department once the department creates and implements the
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Amendment No. 1
1066 database; amending s. 330.30, F.S.; conforming a cross-
1067 reference; providing an effective date.
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CS/CS/HB 267
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 267 State Preemption of Seaport Regulations
SPONSOR(S): Local Administration & Veterans Affairs Subcommittee; Tourism, Infrastructure & Energy
Subcommittee; Roach, Sirois
TIED BILLS: IDEN./SIM. BILLS: CS/CS/CS/SB 426
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Tourism, Infrastructure & Energy Subcommittee 12 Y, 6 N, As CS Willson Keating
2) Local Administration & Veterans Affairs 11 Y, 6 N, As CS Miller Miller
Subcommittee
3) Commerce Committee Willson Hamon
SUMMARY ANALYSIS
Federal admiralty and maritime law generally controls the regulation of maritime commerce upon the navigable
waters of the United States. Municipalities and counties derive broad home rule authority from the Florida
Constitution and general law.
Florida has 15 deepwater ports, including Port Canaveral, Port Citrus, Port Everglades, Port of Fernandina,
Port of Fort Pierce, Port of Jacksonville, Port of Key West, Port Manatee, Port of Miami, Port of Palm Beach,
Port of Panama City, Port of Pensacola, Port of Port St. Joe, Port of St. Petersburg, and Port of Tampa.
The bill provides that a local ballot initiative or referendum may not restrict maritime commerce in the seaports
of this state, including, but not limited to, regulating or restricting a vessel's type, size, or capacity; the source,
type, loading, or unloading of cargo; the number, origin, nationality, embarkation, or disembarkation of
passengers; or the environmental or health records of particular vessels. Any such ballot initiative or
referendum, or any charter amendment, ordinance, resolution, regulation, or policy adopted by such initiative
or referendum, whether before or after the effective date of the bill, is expressly preempted to the state,
prohibited, and void.
The bill prohibits a municipality or its political subdivision from restricting maritime commerce as to any
federally authorized passenger cruise ship including, but not limited to, a restriction based on a vessel's type,
size, or capacity; the source, type, loading, or unloading of cargo; the number, origin, nationality, embarkation,
or disembarkation of passengers; or the environmental or health records of particular vessels. An exception is
provided as to vessel type, size, number, or capacity if due to certain physical limitations the port cannot
accommodate such vessels. Any conflicting law, charter provision, ordinance, resolution, regulation, policy,
initiative, or referendum predating or adopted after the effective date of the bill is prohibited, void, and
expressly preempted to the state. Special districts created by special law, municipal governments consolidated
with county governments, and certain defined counties are exempt from this provision of the bill.
The bill does not limit municipal or special district authority to engage in certain port regulatory or managerial
activities.
The bill does not have a fiscal impact on state or local government.
The bill takes effect upon becoming law.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h0267d.COM
DATE: 4/18/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Federal Regulation of Vessels and Maritime Commerce
Federal law controls1 the regulation of maritime commerce,2 navigation,3 seaport security,4 the
regulation of commercial vessels, shipping5 and common carriers, vessel-related environmental and
pollution standards,6 disease and quarantine efforts,7 and other aspects of admiralty law in and upon
the navigable waters of the United States. The U.S. Supreme Court has consistently determined that
federal supremacy principles mandate preemption of efforts of state and local governments to impose
conditions on port entry controlled by federal law.8
Federal law requires the formulation of federal policies applicable to navigation, vessel safety, and
security of ports and waterways to consider local practices, customs, and the input of local authorities.9
The U.S. Supreme Court has held that fees to defray the cost of purely local regulation of harbor traffic
is not an objectionable burden on commerce.10
The United States Coast Guard (USCG) regulates all commercial vessels, including cruise vessels,
calling on U.S. ports, regardless of the vessel’s country of origin. The USCG inspects each foreign-
flagged cruise vessel calling on a U.S. port at least twice a year to ensure compliance with certain
treaties and U.S. regulations governing safety, security, and environmental protections.11
1 Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) Where Congress has explicitly preempted state law in an area, federal law supplants all
state regulation in that area. Even in the absence of express congressional intent to preempt state law, federal preemption is implied where (1) state
law “actually conflicts with federal law” or (2) federal law so thoroughly occupies a legislative field “as to make reasonable the inference that
Congress left no room for the States to supplement it.”
2
United States v. Locke, 529 U.S. 89, 103 (2000). (“The existence of the treaties and agreements on standards of shipping is of relevance, of course,
for these agreements give force to the longstanding rule that the enactment of a uniform federal scheme displaces state law, and the treaties indicate
Congress will have demanded national uniformity regarding maritime commerce.”)
3 See, generally, 46 U.S.C. §§ 101 et seq.
4 For example, the Maritime Transportation Security Act of 2002 created a broad range of programs to improve the security conditions at the ports
and along American waterways, such as identifying and tracking vessels, assessing security preparedness, and limiting access to sensitive areas.
5 See Shipping Act of 1984. 46 U.S.C. §§ 40101(1), 40101(2). One purpose of the Act is to ‘establish a nondiscriminatory regulatory process for the
common carriage of goods by water in the foreign commerce of the United States with a minimum of government intervention and regulatory costs.’
A second purpose is to ensure that U.S.-flag ships are on a level playing field with foreign vessels.
6 In 1973, the International Maritime Organization (IMO) adopted the International Convention for the Prevention of Pollution by Ships and
subsequently modified it by Protocol in 1978. The Convention is widely known as MARPOL 73/78. Its objective is to limit ship-borne pollution by
restricting operational pollution and reducing the possibility of accidental pollution. MARPOL specifies standards for stowing, handling, shipping,
and transferring pollutant cargoes, as well as standards for discharge of ship-generated operational wastes. Acceptance of the convention by national
government obliges them to make the requirements part of domestic law. USCG, Office of Commercial Vessel Compliance,
https://www.dco.uscg.mil/Our-Organization/Assistant-Commandant-for-Prevention-Policy-CG-5P/Inspections-Compliance-CG-5PC-/Commercial-
Vessel-Compliance/Domestic-Compliance-Division/MARPOL/ (last visited Mar. 1, 2021).
7 See John T. Oliver, Legal and Policy Factors Governing the Imposition of Conditions on Access and Jurisdiction Over Foreign-Flag Vessels in
U.S. Ports, 5 S.C. J. Int'l. L. & Bus. 209, 2 (2009) footnotes 153 & 154. 42 U.S.C. § 267(a): “[The Surgeon General] shall from time to time select
suitable sites for and establish such additional ... anchorages in the States and possessions of the United States as in his judgment are necessary to
prevent the introduction of communicable diseases into the States and possessions of the United States.” “It shall be the duty of the customs officers
and of Coast Guard officers to aid in the enforcement of quarantine rules and regulations ....” U.S.C. § 268(b). Congress has provided statutory
authority for controlling infectious diseases, including quarantining of suspect vessels and their crews and passengers. 42 U.S.C. §§ 264-272. The
President regularly updates the list of communicable diseases subject to quarantine. Exec. Order No. 13,295, Apr. 4, 2003, 68 Fed. Reg. 17,255 (Apr.
9, 2003), reprinted in 42 U.S.C. § 264, as amended by Exec. Order No. 13,375, Apr. 1, 2005, 70 Fed. Reg. 17299 (Apr. 5, 2005). He has also
delegated to the Secretary of Health and Human Services his authority to carry out duties under the statute.
8 See Locke, 529 U.S. at 103.
9 See 46 U.S.C. §§ 70001, 70004. See also Locke, 529 U.S. at 109.
10 See Clyde Mallory Lines v. State of Alabama ex rel. State Docks Comm'n, 296 U.S. 261, 267 (1935). The Court observed that state regulations of
harbor traffic, even if they incidentally affect commerce, interstate or foreign, are of local concern, so long as they do not impede the free flow of
commerce and are not made the subject of regulation by Congress are not forbidden.
11 U.S. House of Representatives, Subcommittee on Coast Guard and Maritime Transportation. Hearing on “Commercial and Passenger Vessel
Safety: Challenges and Opportunities, p. 4 (Nov. 9, 2019) https://www.congress.gov/116/meeting/house/110181/documents/HHRG-116-PW07-
20191114-SD001.pdf (last visited Feb. 28, 2021).
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Florida Ports
There are 15 deepwater seaports in Florida:12
Port Canaveral,
Port Citrus,
Port Everglades,
Port of Fernandina,
Port of Fort Pierce,
Port of Jacksonville
Port of Key West,
Port Manatee,
Port of Miami,
Port of Palm Beach
Port of Panama City,
Port of Pensacola,
Port of Port St. Joe,
Port of St. Petersburg, and
Port of Tampa.
Approximately half of Florida’s deepwater ports are organized as independent or dependent special
districts.13 The remainder are organized within their respective municipal or county governments.14
According to the Florida Ports Council, Florida seaports generate nearly 900,000 direct and indirect
jobs and contribute $117.6 billion in economic value to the state through cargo and cruise activities.
Florida maritime activities account for approximately 13 percent of Florida’s gross domestic product
while contributing $4.2 billion in state and local taxes.15 In 2018, approximately 110,268,130 tons of
cargo and 16,835,986 passengers moved through Florida’s seaports.16
State Law Relating to Seaports
Florida Seaport and Economic Development Program
In 1990, the Legislature created ch. 311, F.S., authorizing the Florida Seaport Transportation and
Economic Development (FSTED) Program.17 The program established a collaborative relationship
between the Florida Department of Transportation (DOT) and the seaports, and codified an annual
minimum appropriation of $25 million for a seaport grant program.18 Grants under the FSTED program
are limited to the following port facilities or port transportation projects:
Transportation facilities within the jurisdiction of the port;
The dredging or deepening of channels, turning basins, or harbors;
The construction or rehabilitation of wharves, docks, structures, jetties, piers, storage facilities,
cruise terminals, automated people mover systems, or any facilities necessary or useful in
connection with the foregoing;
12 For a map of Florida’s deepwater seaports which indicates the primary streams of commerce (i.e., cargo, cruise passenger, other, or a combination
thereof) see DOT, Seaport System, https://www.fdot.gov/seaport/seamap.shtm (last visited Mar. 16, 2021).
13 Ports operated by independent special districts are Port Canaveral, Port of Fernandina, Port of Palm Beach, Port of Port St. Joe, and Port of Tampa.
Ports operated by dependent special districts are Port Citrus, Port of Jacksonville, Port Manatee, and Port of Panama City.
http://specialdistrictreports.floridajobs.org/webreports/criteria.aspx (last visited Mar. 16, 2021). A “dependent special district” is a special district
subject to significant control by the governing body of a single county or municipality. S. 189.012(2), F.S. An “independent special district” is any
district that is not a dependent special district. S. 189.012(3), F.S.
14 The Ports of Key West, Pensacola, and St. Petersburg are departments of their respective municipalities. See at https://flaports.org/seaports/ (last
visited Mar. 31, 2021).
15 Florida Ports Council, The Florida System of Seaports, https://flaports.org/about/the-florida-system-of-seaports/ (last visited Mar. 1, 2021).
16 FDOT, 2018 Update of Tables and Figures, p.4, https://fdotwww.blob.core.windows.net/sitefinity/docs/default-source/seaport/pdfs/2018-update-
of-tables-and-figures-florida-seaport-system-plan-717752830.pdf?sfvrsn=e1879b60_2 (last visited Mar. 1, 2021).
17 Ch. 90-136, Laws of Fla.
18 Ss. 311.07 and 311.09, F.S.
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The acquisition of vessel tracking systems, container cranes, or other mechanized equipment
used in the movement of cargo or passengers in international commerce;
The acquisition of land to be used for port purposes;
The acquisition, improvement, enlargement, or extension of existing port facilities;
Environmental protection projects: those necessary to meet requirements imposed by a state
agency as a condition of a permit or other form of state approval; those necessary for
environmental mitigation required as a condition of a state, federal, or local environmental
permit; those necessary for the acquisition of spoil disposal sites; or those resulting from the
funding of eligible projects;
Transportation facilities which are not otherwise part of DOT’s adopted Work Program.19
Intermodal access projects;
Construction or rehabilitation of port facilities, excluding any park or recreational facility, in ports
listed in statute,20 with operating revenues of $5 million or less, provided that such project
creates economic development opportunities, capital improvements, and positive financial
returns to such ports; and
Seaport master plan or strategic plan development updates, including the purchase of data to
support such plans or other provisions of the Community Planning Act.21
The FSTED program is managed by the FSTED Council, which consists of each port director, or
director’s designee, of the 15 deepwater ports, the Secretary of DOT or his or her designee, and the
Executive Director of the Department of Economic Opportunity or his or her designee.22
To be eligible for consideration by the FSTED Council, a project must be consistent with the port’s
comprehensive master plan, which is incorporated as part of the approved local government
comprehensive plan.
Community Planning Act
The Community Planning Act includes four primary references to deepwater ports:
1. A local government's comprehensive plan transportation element must include different levels of
transportation analysis based on the size and location of the local government and whether it is in
the metropolitan planning area of a Metropolitan Planning Organization. Traffic circulation issues
related to ports must be addressed as well as plans for port facilities. Cities with populations greater
than 50,000 and counties with populations greater than 75,000 must include "Plans for port . . . and
related facilities coordinated with the general circulation and transportation element." Some or all of
these requirements can be addressed in the port master plan.23
2. A comprehensive plan's coastal management element must "(d)irect the orderly development,
maintenance, and use of ports to facilitate deepwater commercial navigation and other related
activities." This requirement also can be addressed in the port master plan.24
3. Port master plans must be included in the local government's coastal management element and
must identify existing port facilities and any proposed expansions.25 To the extent the following are
applicable, port master plans must:
Provide a land use and inventory map of existing coastal uses;
Analyze the environmental, socioeconomic, and fiscal impact of development;
Analyze effects of existing drainage systems on estuarine water quality;
Outline principles for hazard mitigation and protection of human life;
Outline principles for protecting existing beach and dune systems;
19 DOT’s Work Program is adopted pursuant to s. 339.135, F.S.
20 S. 311.09(1), F.S. The ports listed are Jacksonville, Port Canaveral, Port Citrus, Fort Pierce, Palm Beach, Port Everglades, Miami, Port Manatee,
St. Petersburg, Tampa, Port St. Joe, Panama City, Pensacola, Key West, and Fernandina.
21 Ch. 163, part II, F.S.
22 S. 311.09(1), F.S.
23 S. 163.3177(6)(b), F.S.
24 S. 163.3177(6)(g)8., F.S.
25 S. 163.3178(2), F.S.
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Outline principles to eliminate inappropriate and unsafe development;
Identify public access to shoreline areas and preservation of working waterfronts;
Designate coastal high-hazard areas and mitigation criteria;
Outline principles to assure that public facilities will be in place; and,
Mitigate the threat to human life and protect the coastal environment.
4. Certain eligible port expansions, projects, and facilities, both on the port and within three miles of
the port, may not be designated as Developments of Regional Impact if they are consistent with a
port master plan.26
Port Facility Financing
Any county, port district,27 port authority,28 municipality, or certain governmental units created pursuant
to the Florida Interlocal Cooperation Act29 that include at least one deepwater port are authorized30 to:
Exercise jurisdiction, control and supervision over any port facilities now or hereafter acquired,
owned, or constructed by the local government(s).
Operate and maintain, and to fix and collect rates, rentals, fees and other charges for any of the
services and facilities provided by the port facilities now or hereafter acquired, owned or
constructed by the unit excluding state bar pilots.
Lease or rent, or contract with others for the operation of all or any part of any port facilities now
or hereafter acquired, owned or constructed by the unit, on such terms and for such period or
periods and subject to such conditions as the governing body shall determine to be in the best
interests of the local government(s).
Vessel Movement and Related Fees
A port has authority to regulate vessel movements within its jurisdiction, whether involving public or
private facilities or areas, by:
Scheduling vessels for use of berths, anchorages, or other facilities at the port.
Ordering and enforcing a vessel, at its own expense and risk, to vacate or change position at a
berth, anchorage, or facility, whether public or private, in order to facilitate navigation,
commerce, protection of other vessels or property, or dredging of channels or berths.
Designating port facilities for the loading or discharging of vessels.
Assigning berths at wharves for arriving vessels.31
Ports are authorized to establish fees and compensation for these services when provided by the port.
Harbor Safety
Ports, in agreement with the USCG, state harbor pilots, and other ports in its operating port area, must
adopt guidelines for:
Minimum bottom clearance for each berth and channel,
The movement of vessels, and
Radio communications of vessel traffic for all commercial vessels entering and leaving its
harbor channels.32
County Seaport Projects and Facilities
26 S. 163.3178(3), F.S.
27 A “port district” is any district created by or pursuant to the provisions of any general or special law and authorized to own or operate any port
facilities. S. 315.02(1), F.S.
28 A “port authority” is created by or pursuant to the provisions of any general or special law or any district or board of county commissioners acting
as a port authority under or pursuant to the provisions of any general or special law. S. 315.02(2), F.S.
29 S. 163.01(7)(d), F.S.
30 S. 315.03, F.S.
31 S. 313.22, F.S.
32 S. 313.23, F.S.
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Counties have broad authority to provide for port improvements within their jurisdiction,33 including the
ability to:
Construct, acquire, establish, improve, extend, enlarge, reconstruct, equip, maintain, repair, and
operate any project,34 either within or without the territorial boundaries of the county.
Subject to the jurisdiction of the United States and the State of Florida and the general laws of
Florida relating to dredging and filling, to construct, establish, and improve harbors in the county
and all navigable and nonnavigable waters connected therewith; to regulate and control all such
waters; to construct and maintain such canals, slips, turning basins, and channels and upon
such terms and conditions as may be required by the United States; and to enact, adopt, and
establish by resolution rules and regulations for the complete exercise of jurisdiction and control
over all such waters.
Appoint shipping masters for ports or harbors under its control, to determine their qualifications,
and to adopt rules and regulations prescribing their duties.
License stevedores as independent contractors for hire to handle stevedoring at and in the
harbors of the county, to fix the terms and conditions of such licenses, and to determine the
fees to be charged for same.
Make and enter into all contracts and agreements and to do and perform all acts and deeds
necessary and incidental to the performance of its duties and the exercise of its powers.
Fix, regulate, and collect rates and charges for the services and facilities furnished by any
project under its control; to establish, limit, and control the use of any project as may be deemed
necessary to ensure the proper operation of the project; to impose sanctions to promote and
enforce compliances; to prescribe rules and regulations and impose penalties and sanctions to
ensure the proper performance of the duties of any stevedore or of any shipping master and the
enforcement of any rule or regulation which the county may adopt in the regulation of the ports,
harbors, wharves, docks, airports, and other projects under its control.
Fix the rates of wharfage, dockage, warehousing, storage, and port and terminal charges for the
use of the port and harbor facilities located within or without the county and owned or operated
by the county; and to fix and determine the rates, tolls, and other charges for the use of harbor
and airport improvements and harbor and airport facilities located within or without the county
insofar as it may do so under the State Constitution and the Constitution and laws of the United
States.
Regulate the operation, docking, storing, and conduct of all watercraft of any kind plying or
using the waterways within the county and of all aircraft of any kind operating over and within
the county or utilizing any other area, field, location, or place within the county for air navigation
purposes or for the repair, storage, or handling of aircraft within the county.
Receive and accept, from any federal agency, grants for or in aid of the construction,
improvement, or operation of any project and to receive and accept contributions from any
source of either money, property, labor, or other things of value.
Make any and all applications required by the Treasury Department and other departments or
agencies of the United States Government as a condition precedent to the establishment within
the county of a free port, foreign trade zone, or area for the reception from foreign countries of
articles of commerce; to expedite and encourage foreign commerce and the handling,
processing, and delivery thereof into foreign commerce free from the payment of custom duties
and to enter into any agreements required by such departments or agencies in connection
therewith; and to make like applications and agreements with respect to the establishment
within the county of one or more bonded warehouses.
Enter into any contract with the government of the United States or any agency thereof which
may be necessary in order to procure assistance, appropriations, and aid for the deepening,
widening, and extending of channels and turning basins, the building and construction of public
mass transit facilities, airport and airport facilities, slips, wharves, breakwaters, jetties,
bulkheads, and any and all other harbor and air navigation improvements and facilities.
33 S. 125.012, F.S.
34 S. 125.011(2)(a), F.S., defines “project” as one or more of the following: “harbor, port, shipping, and airport facilities of all kinds and includes, but
is not limited to, harbors, channels, turning basins, anchorage areas, jetties, breakwaters, waterways, canals, locks, tidal basins, wharves, docks, piers,
slips, bulkheads, public landings, warehouses, terminals, refrigerating and cold storage plants, railroads and motor terminals for passengers and
freight, rolling stock, car ferries, boats, conveyors and appliances of all kinds for the handling, storage, inspection and transportation of freight and
the handling of passenger traffic, … and the loading and unloading and handling of passengers, mail, express and freight;”
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Make or cause to be made such surveys, investigations, studies, borings, maps, plans,
drawings, and estimates of cost and revenues as it may deem necessary and to prepare and
adopt a comprehensive plan or plans for the location, construction, improvement, and
development of any project.
Grant exclusive or nonexclusive franchises to persons, firms, or corporations for the operating
of restaurants, cafeterias, bars, taxicabs, vending machines, and other concessions of a
nonaeronautical nature in, on, and in connection with any project owned and operated by the
county.
Adopt and promulgate suitable rules, regulations, and directions for the operation and conduct
of any project owned or operated by the county and for the use of any such project and any
facility connected therewith by others.
Enter into contracts with utility companies or others for the supplying by such utility companies
or others of water, electricity, or telephone service to or in connection with any project.
Own, maintain, operate, and control export trading companies, foreign sales corporations, and
consulting services corporations as provided by the laws of the United States or this state; to
enter into management contracts with such corporations or companies established for the
purpose of providing or operating such facilities; to own, maintain, operate, and control cargo
clearance centers and customs clearance facilities, and to enter into management contracts
with corporations established for the purpose of providing or operating such facilities; to
maintain the confidentiality of trade information and data pursuant to the patent or copyright
laws of the United States, pursuant to the patent or copyright laws of foreign nations to the
extent that same are enforced by the courts of the United States, and pursuant to the trade
secrets doctrine; and to authorize airport and port employees to serve as officers and directors
of export trading companies, foreign sales corporations, customs and cargo clearance
corporations, and consulting services corporations for the sale of services to others. Counties
are hereby authorized to expend any unobligated and available surplus funds from the activities
authorized in this subsection for the construction of capital facilities.
State Freight Logistics Zones and The Intermodal Logistics Center Infrastructure Support Program
Counties may designate geographic areas as freight logistics zones.35 A freight logistics zone is a
grouping of activities and infrastructure associated with freight transportation and related services
within a defined area around an intermodal logistics center. The Intermodal Logistics Center
Infrastructure Support Program is designed to provide DOT funds for roads, rail facilities, or other
means for the conveyance or shipment of goods through a seaport and allow the state to respond to
private sector market demands and meet the state’s economic development goal of becoming a hub for
trade, logistics, and export-oriented activities.
Passenger Transportation Fees and For-Hire Vehicles
A seaport may charge reasonable fees to for-hire vehicles for their use of the airport’s or seaport’s
facilities as well as designate locations for staging, pickup, or other similar operations at the seaport.36
Municipal Government, Consolidated Government, and Defined Counties
Municipalities may be established or abolished by general or special law. 37 Once created, they have
governmental, corporate and proprietary powers enabling them to conduct municipal government,
perform municipal functions, render municipal services, and may exercise any power for municipal
purposes consistent with general law.38 Unlike counties,39 municipalities are not political subdivisions of
the state and are not entitled to the same immunities and privileges unless so provided in law.40 Not
35 S. 311.103, F.S.
36 Ss. 316.85(6) and 627.748(17)(b), F.S.
37 Art. VIII, s. 2(a), Fla. Const. Under a separate provision, Miami-Dade County has sole authority to establish or abolish municipalities within the
County. See art. VIII, s. 6(e), Fla. Const., incorporating art. VIII, s. 11, Fla. Const. (1885, as amended).
38 Art. VIII, s. 2(b), Fla. Const.
39 Art. VIII, s. 1(a), Fla. Const.
40 Dept. of Revenue v. City of Gainesville, 918 So. 2d 250 (Fla. 2005).
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every action of a municipality is a “municipal purpose”41 unless it meets the current statutory
definition.42 “Municipal government” does not always mean “municipality,” as counties may be
authorized to exercise municipal powers in certain contexts.43
The Florida Constitution authorizes a county and one or more municipalities in that county to
consolidate their governmental powers under a special act approved by the voters.44 Currently, the only
consolidated government in Florida is that of the City of Jacksonville/Duval County.45
For certain statutory purposes, “county” is defined as any county operating under a home rule charter
adopted under specified provisions of the Florida Constitution of 1885.46
Port Districts
A port district is a type of special district created by general or special law and authorized to own or
operate port facilities.47 A "special district" is a unit of local government created for a particular purpose,
with jurisdiction to operate within a limited geographic boundary.48 A special district has only those
powers expressly provided by, or reasonably implied from, the authority provided in the district’s
charter.49 A “dependent special district” is a special district subject to significant control by the
governing body of a single county or municipality.50 An “independent special district” is any district that
is not a dependent special district.51
Special districts do not possess “home rule” powers and may impose only those taxes, assessments,
or fees authorized by special or general law. The special act creating an independent special district
may provide for funding from a variety of sources while prohibiting others. For example, ad valorem tax
authority is not mandatory for a special district.52
Preemption
Local governments have broad authority to legislate on any matter that is not inconsistent with federal
or state law. A local government enactment may be inconsistent with state law if (1) the Legislature
"has preempted a particular subject area" or (2) the local enactment conflicts with a state statute.
Where state preemption applies it precludes a local government from exercising authority in that
particular area.53
41 See City of Miami Beach v. Fleetwood Hotel, Inc., 261 So. 2d 801 (Fla. 1972).
42 S. 166.021(2), F.S.
43 Counties providing municipal services are authorized to levy additional ad valorem taxes of no more than 10 mills for municipal purposes. Art.
VII, s. 9(b), Fla. Const.; s. 125.01(1)(q), F.S. Miami-Dade County is authorized to exercise all powers provided to municipalities to the extent not
inconsistent with general law. Art. VIII, s. 6(f), Fla. Const.
44 Art. VIII, s. 3, Fla. Const.
45 The consolidated government of the City of Jacksonville was created by ch. 67-1320, Laws of Fla., adopted pursuant to Art. VIII, s. 9, Fla. Const.
(1885). The charter was readopted by ch. 92-341, Laws of Fla.
46 S. 125.011(1), F.S. The incorporated provisions include ss. 10 (Monroe County), 11 (Miami-Dade County), and (24) (Hillsborough County) of
article VIII of the 1885 Constitution.
47 S. 315.02, F.S.
48 See Halifax Hospital Medical Center v. State of Fla., et al., 278 So. 3d 545, 547 (Fla. 2019).
49 2020 – 2022 Local Gov’t Formation Manual, pp. 60-61, at
https://myfloridahouse.gov/Sections/Documents/loaddoc.aspx?PublicationType=Committees&CommitteeId=3117&Session=2021&DocumentType=
General+Publications&FileName=2021-2022+Local+Government+Formation+Manual.pdf (last visited Jan. 26, 2021).
50 S. 189.012(2), F.S. Types of such control include the county or municipality governing body acting as the district governing body, having the
authority to appoint or remove at will district board members, or having final approval authority over the district’s budget.
51 S. 189.012(3), F.S.
52 Art. VII, s. 9(a), Fla. Const.
53 Wolf, The Effectiveness of Home Rule: A Preemptions and Conflict Analysis, 83 Fla. B.J. 92 (June 2009). Historically, certain types of local action
have been found to frustrate the purpose of state law, and, thus, conflict has resulted. Specifically, Florida jurisprudence makes clear that local action
cannot 1) provide for more stringent regulation than the state legislation in violation of the express wording of the statute; 2) provide for a more
stringent penalty than that allowed by state statute; 3) prohibit behavior otherwise allowed by state legislation; 4) allow behavior otherwise prohibited
by state statute; or 5) provide for a different method for doing a particular act than the method proscribed by state legislation.
Generally, a local government can pass more stringent regulations than those provided for by statute. However, if the state legislation expressly
forbids a stricter regulation or if the imposition of a stricter regulation frustrates the purpose of the statute, the local government must abstain.
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Florida law recognizes two types of preemption: express and implied. Express preemption requires a
specific legislative statement; it cannot be implied or inferred.54 Express preemption of a field by the
Legislature must be accomplished by clear language stating that intent.55 In cases where the
Legislature expressly or specifically preempts a field, there is no problem with ascertaining what the
Legislature intended.56 In cases determining the validity of ordinances enacted in a field preempted by
the state, the effect has been to find such ordinances null and void.57
Key West Ordinance
On November 3, 2020, voters adopted three charter amendments to the City Charter for the City of Key
West.58 The amendments:
Limit the number of persons disembarking from cruise ships to a total of not more than 1,500
persons per day at any and all public and privately owned or leased property located within the
municipal boundary of the City of Key West.
Prohibit cruise ships with a capacity of 1,300 or more persons (passengers and crew) from
disembarking individuals at any and all public and privately owned or leased property located
within the municipal boundary of the City of Key West.
Give preference and priority to cruise ships and cruise lines that have the best record (the
lowest number of environmental violations, penalties and fines) and best health record (the best
scores and least number of violations in health inspections and reports issued by the Center for
Disease Control Vessel Sanitation Program).
Effect of the Bill
The bill creates s. 311.25, F.S., to provide that a ballot initiative or referendum, or a provision of a local
government charter, ordinance, resolution, regulation, or policy created by ballot initiative or
referendum, may not restrict or regulate59 commerce60 in the seaports of this state, including, but not
limited to, regulating or restricting a vessel's type or size, source or type of cargo, or number, origin, or
nationality of passengers. Any such initiative, referendum, charter provision, ordinance, resolution,
regulation, or policy predating or adopted after the effective date of the bill is expressly preempted to
the state, prohibited, and void.
The bill prohibits a municipality or its political subdivision from restricting maritime commerce as to any
federally authorized passenger cruise ship including, but not limited to, a restriction based on a vessel's
type, size, or capacity; the source, type, loading, or unloading of cargo; the number, origin, nationality,
embarkation, or disembarkation of passengers; or the environmental or health records of particular
vessels. An exception is provided as to vessel type, size, number, or capacity if due to certain physical
limitations the port cannot accommodate such vessels. Any conflicting law, charter provision,
ordinance, resolution, regulation, policy, initiative, or referendum predating or adopted after the
effective date of the bill is expressly preempted to the state, prohibited, and void. The bill exempts
special districts created by special law, municipal governments consolidated with county governments,
and certain defined counties from this provision.
The bill specifies that, unless preempted by federal or state law, the bill does not limit the authority of a
municipality or port district owned or operated by a municipality to:
54 See City of Hollywood v. Mulligan, 934 So. 2d 1238, 1243 (Fla. 2006); Phantom of Clearwater, Inc. v. Pinellas County, 894 So. 2d 1011, 1018
(Fla. 2d DCA 2005), approved in Phantom of Brevard, Inc. v. Brevard County, 3 So. 3d 309 (Fla. 2008).
55 Mulligan, 934 So. 2d at 1243.
56 Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So. 3d 880, 886 (Fla. 2010).
57 See, e.g., Nat’l Rifle Ass’n of Am., Inc. v. City of S. Miami, 812 So. 2d 504 (Fla. 3d DCA 2002).
58 City of Key West, Code of Ordinances, Charter Amendment of 11-16-2020,
https://library.municode.com/fl/key_west/ordinances/code_of_ordinances?nodeId=1052747 (last visited Feb. 28, 2021).
59“Regulate” means “to govern or direct according to rule;” ”to bring under the control of law or constituted authority;” “to make regulations for or
concerning;” or “to bring order, method, or uniformity to.” https://www.merriam-webster.com/dictionary/regulate (last visited Mar. 1, 2021).
60 “Commerce” means “an interchange of goods or commodities, especially on a large scale between different countries (foreign commerce) or
between different parts of the same country (domestic commerce); trade; business.” https://www.dictionary.com/browse/commerce (last visited Mar.
1, 2021).
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Operate seaport programs and facilities pursuant to ch. 311, F.S.;
Finance port facilities pursuant to ch. 315, F.S.;
Regulate vessel movements within its jurisdiction pursuant to s. 313.22(1), F.S.;
Establish fees and compensation for its services pursuant to s. 313.22(2), F.S.;
Adopt guidelines for minimum bottom clearance, for the movement of vessels, and for radio
communications of vessel traffic pursuant to s. 313.23, F.S.;
Implement seaport security measures pursuant to ss. 311.12-311.124, F.S.
Issue and enforce tariffs properly filed with the Federal Maritime Commission; or
Enter into leases and other contracts pertaining to the management of the port.
B. SECTION DIRECTORY:
Section 1 Creates s. 311.25, F.S.; preempting to the state the regulation of commerce in state
seaports; providing exceptions.
Section 2 Directs the Division of Law Revision to replace a certain phrase with the actual date the
bill becomes law.
Section 3 Provides the act is effective upon becoming law.
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 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.
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2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill neither provides authority for nor requires rulemaking by executive branch agencies.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On March 3, 2021, the Tourism, Infrastructure & Energy Subcommittee adopted four amendments and
reported the bill favorably as a committee substitute. The amendments:
Narrowed the breadth of the preemption by replacing “Notwithstanding any other law to the
contrary” with “Except as authorized by general law”.
Limited the scope of the preemption to the regulation of seaports by municipal governments only.
On April 1, 2021, the Local Administration & Veterans Affairs Subcommittee adopted one amendment and
reported the bill favorably as a committee substitute. The amendment:
Prohibits certain restrictions on maritime commerce from being adopted by ballot initiative or
referendum or from being adopted as ordinances, resolutions, regulations, or policies by ballot
initiative or referendum. All such provisions adopted by ballot initiative or referendum are preempted
and declared void whether or not those provisions predated or were adopted after the effective date
of the bill.
Prohibits municipalities or special port districts not created by the Legislature from restricting
maritime commerce as to federally authorized passenger cruise ships. Any charter provision,
ordinance, regulation, resolution, policy, ballot initiative, or referendum in conflict with the statute is
preempted and void.
Exempts consolidated county/municipal governments, defined counties, and special districts
created by special act from the passenger cruise ship prohibition.
Does not limit the authority of municipal governments and special port districts created and
controlled by municipalities to continue regulating and managing their ports generally as provided in
statute.
This analysis is drafted to the committee substitute as approved by the Local Administration & Veterans Affairs
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/CS/HB 267 2021
1 A bill to be entitled
2 An act relating to state preemption of seaport
3 regulations; creating s. 311.25, F.S.; prohibiting a
4 local ballot initiative or referendum from restricting
5 maritime commerce in the seaports of this state;
6 providing that such a local ballot initiative,
7 referendum, or action adopted therein is prohibited,
8 void, and expressly preempted to the state;
9 prohibiting municipalities and certain special
10 districts from restricting maritime commerce in the
11 seaports of this state with respect to any federally
12 authorized passenger cruise vessel; providing that
13 certain actions relating to such restrictions are
14 prohibited, void, and expressly preempted to the
15 state; providing applicability; clarifying remaining
16 authority of certain local entities; providing a
17 directive to the Division of Law Revision; providing
18 an effective date.
19
20 WHEREAS, maritime commerce between and among seaports, both
21 foreign and domestic, is the subject of extensive federal and
22 state regulation designed to protect the marine environment and
23 the health, safety, and welfare of the general public and those
24 involved in conducting that commerce, and
25 WHEREAS, the economic impact of a seaport extends far
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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/CS/HB 267 2021
26 beyond the boundaries of the local jurisdiction in which the
27 port is located, materially contributing to the economies of
28 multiple cities and counties within the region and to the
29 economy of this state as a whole, and
30 WHEREAS, Florida seaports currently generate nearly 900,000
31 direct and indirect jobs and contribute $117.6 billion in
32 economic value to this state through cargo and cruise
33 activities, accounting for approximately 13 percent of this
34 state's gross domestic product and $4.2 billion in state and
35 local taxes, and
36 WHEREAS, because this state is a peninsula, much of this
37 state is highly dependent upon the unimpeded flow of maritime
38 commerce through its seaports, which is made even more critical
39 when this state is threatened or impacted by natural disasters,
40 such as tropical storms and hurricanes, and
41 WHEREAS, because of its geographic location, this state is
42 a hub for global maritime commerce and is uniquely positioned to
43 capture an even larger share of this commerce as global trade
44 routes shift, and
45 WHEREAS, the international, national, statewide, and
46 regional importance of Florida seaports has long been recognized
47 in federal and state law with respect to the regulation,
48 planning, and public financing of seaport operations and
49 facilities, and
50 WHEREAS, this state is widely known as the cruise capital
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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/CS/HB 267 2021
51 of the world, and the cruise industry is vital to this state's
52 economy, contributing more than $9 billion in direct spending on
53 an annual basis and supporting 159,000 jobs with more than $8
54 billion in total wages and salaries before the current pandemic,
55 and
56 WHEREAS, 8.3 million passengers boarded cruises from one of
57 this state's five cruise ports in 2019, accounting for 60
58 percent of embarkations in the United States, generating 11
59 million passenger and crew onshore visits in both home port and
60 transit port calls in this state, and
61 WHEREAS, allowing a ballot initiative or referendum in each
62 local seaport jurisdiction to impose its own requirements on the
63 maritime commerce conducted in that port could result in abrupt
64 changes in the supply lines bringing goods into and out of this
65 state and could reasonably be expected to suppress such commerce
66 and potentially drive it out of the port and out of this state
67 in search of a more consistent and predictable operating
68 environment, thus disrupting this state's economy and
69 threatening the public's health, safety, and welfare, and
70 WHEREAS, allowing a ballot initiative or referendum in each
71 local seaport jurisdiction to impose its own requirements on the
72 maritime commerce conducted in that port could result in abrupt
73 changes in vessel traffic, frustrating the multi-year planning
74 process for all Florida seaports and the assumptions and
75 forecasts underlying federal and state financing of port
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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/CS/HB 267 2021
76 improvement projects, and
77 WHEREAS, there are similar concerns regarding the capacity
78 of a municipality and certain special districts to impose such
79 requirements on the maritime commerce conducted in a port, as
80 the more limited geographic and political scope of a
81 municipality and certain special districts may make such entity
82 less sensitive to the negative impact of such requirements on
83 neighboring municipalities and on the county, region, and state,
84 and
85 WHEREAS, many local economies in this state depend heavily
86 on tourism, on which the surrounding politics can be
87 particularly complex at the municipal level, which significantly
88 heightens those concerns with respect to the ability of
89 municipalities and certain special districts to impose local
90 requirements affecting passenger cruise vessels or cruise lines,
91 and
92 WHEREAS, in light of these potential negative impacts, the
93 permissible scope of local ballot initiatives or referenda and
94 of the powers of a municipality and certain special districts
95 must be appropriately limited, NOW, THEREFORE,
96
97 Be It Enacted by the Legislature of the State of Florida:
98
99 Section 1. Section 311.25, Florida Statutes, is created to
100 read:
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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/CS/HB 267 2021
101 311.25 Regulation of commerce in Florida seaports.—
102 (1)(a) A local ballot initiative or referendum may not
103 restrict maritime commerce in the seaports of this state,
104 including, but not limited to, restricting such commerce based
105 on any of the following:
106 1. Vessel type, size, number, or capacity.
107 2. Number, origin, nationality, embarkation, or
108 disembarkation of passengers or crew or their entry into this
109 state or any local jurisdiction.
110 3. Source, type, loading, or unloading of cargo.
111 4. Environmental or health records of a particular vessel
112 or vessel line.
113 (b) Any local ballot initiative or referendum, or any
114 local law, charter amendment, ordinance, resolution, regulation,
115 or policy adopted in a local ballot initiative or referendum, in
116 violation of paragraph (a) which was adopted before, on, or
117 after the effective date of this act is prohibited, void, and
118 expressly preempted to the state.
119 (2)(a) A municipality or political subdivision thereof, or
120 a special district other than one established for port
121 management by special act of the Legislature, may not restrict
122 maritime commerce in the seaports of this state with respect to
123 any federally authorized passenger cruise vessel, including, but
124 not limited to, a restriction based on any of the following:
125 1. Vessel type, size, number, or capacity, except when the
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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/CS/HB 267 2021
126 port, by virtue of the physical limitations of its docking,
127 berthing, or navigational capabilities, is unable to accommodate
128 a passenger cruise vessel pursuant to applicable federal or
129 state laws or regulations.
130 2. Number, origin, nationality, embarkation, or
131 disembarkation of passengers or crew or their entry into this
132 state or any local jurisdiction.
133 3. Source, type, loading, or unloading of cargo related or
134 incidental to its use as a passenger cruise vessel.
135 4. Environmental or health records of a particular
136 passenger cruise vessel or cruise line.
137 (b) Any provision of a law, a charter, an ordinance, a
138 resolution, a regulation, a policy, an initiative, or a
139 referendum which is in conflict with paragraph (a) and which
140 existed before, on, or after the effective date of this act is
141 prohibited, void, and expressly preempted to the state.
142 (c) This subsection does not apply to a municipality the
143 government of which has been consolidated with that of a county
144 or to a municipal government that is a county as defined in s.
145 125.011(1).
146 (d) Except as provided in paragraph (a), this subsection
147 does not otherwise limit the authority of a subject
148 municipality, political subdivision thereof, or special district
149 to:
150 1. Engage in any activity authorized under this chapter,
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CS/CS/HB 267 2021
151 chapter 315, s. 313.22, or s. 313.23, including those
152 surrounding the continued operation and development of the port
153 and port facilities and the implementation of seaport security
154 measures pursuant to ss. 311.12-311.124.
155 2. Issue and enforce tariffs properly filed with the
156 Federal Maritime Commission.
157 3. Enter into leases, terminal agreements, or other
158 contracts with tenants, customers, and other users of port
159 facilities.
160 Section 2. The Division of Law Revision is directed to
161 replace the phrase "the effective date of this act" wherever it
162 occurs in this act with the date this act becomes a law.
163 Section 3. This act shall take effect upon becoming a law.
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COMMERCE COMMITTEE
CS/CS/HB 267 by Rep. Roach
State Preemption of Seaport Regulations
AMENDMENT SUMMARY
April 19, 2021
Amendment 1 by Rep. Roach (line 113):
Narrows the scope of the preemption relating to the restriction of maritime commerce with
respect to federally authorized cruise vessels to only those seaports located in or adjoining an
area designated as an area of critical state concern.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/CS/HB 267 (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 Roach offered the following:
3
4 Amendment (with title amendment)
5 Remove lines 113-159 and insert:
6 (b) Any local ballot initiative or referendum that is in
7 conflict with paragraph (a) and that was adopted before, on, or
8 after the effective date of this act, and any local law, charter
9 amendment, ordinance, resolution, regulation, or policy adopted
10 in such an initiative or referendum, is prohibited, void, and
11 expressly preempted to the state.
12 (2)(a) A local government or a political subdivision or
13 special district thereof may not restrict maritime commerce in
14 any seaport of this state located in or adjoining an area
15 designated as an area of critical state concern before, on, or
16 after the effective date of this act with respect to any
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/CS/HB 267 (2021)
Amendment No. 1
17 federally authorized passenger cruise vessel, including, but not
18 limited to, a restriction based on any of the following:
19 1. Vessel type, size, number, or capacity, except when the
20 port, by virtue of the physical limitations of its docking,
21 berthing, or navigational capabilities, is unable to accommodate
22 a passenger cruise vessel pursuant to applicable federal or
23 state laws or regulations.
24 2. Number, origin, nationality, embarkation, or
25 disembarkation of passengers or crew or their entry into this
26 state or any local jurisdiction.
27 3. Source, type, loading, or unloading of cargo related or
28 incidental to its use as a passenger cruise vessel.
29 4. Environmental or health records of a particular
30 passenger cruise vessel or cruise line.
31 (b) Any provision of a local law, a charter, an ordinance,
32 a resolution, a regulation, a policy, an initiative, or a
33 referendum which is in conflict with paragraph (a) and which
34 existed before, on, or after the effective date of this act is
35 prohibited, void, and expressly preempted to the state.
36 (c) This subsection does not apply to a special district
37 established for port management by special act of the
38 Legislature.
39 (d) Except as provided in paragraph (a), this subsection
40 does not otherwise limit the authority of a subject local
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/CS/HB 267 (2021)
Amendment No. 1
41 government or a political subdivision or special district
42 thereof to:
43 1. Engage in any activity authorized under this chapter,
44 chapter 315, s. 313.22, or s. 313.23, including those
45 surrounding the continued operation and development of the port
46 and port facilities and the implementation of seaport security
47 measures pursuant to ss. 311.12-311.124.
48 2. Issue and enforce tariffs properly filed with the
49 Federal Maritime Commission.
50 3. Enter into leases, terminal agreements, or other
51 contracts with tenants, customers, and other users of port
52 facilities.
53 Section 2. If any provision of this act or its application
54 to any person or circumstance is held invalid, the invalidity
55 does not affect other provisions or applications of this act
56 which can be given effect without the invalid provision or
57 application, and to this end the provisions of this act are
58 severable.
59
60 -----------------------------------------------------
61 T I T L E A M E N D M E N T
62 Remove lines 9-95 and insert:
63 prohibiting local governments and their political
64 subdivisions and special districts from restricting
65 maritime commerce in a seaport located in or adjoining
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/CS/HB 267 (2021)
Amendment No. 1
66 an area of critical state concern with respect to any
67 federally authorized passenger cruise vessel;
68 providing that certain actions relating to such
69 restrictions are prohibited, void, and expressly
70 preempted to the state; providing applicability;
71 clarifying remaining authority of certain local
72 entities; providing for severability; providing a
73 directive to the Division of Law Revision; providing
74 an effective date.
75
76 WHEREAS, maritime commerce between and among seaports, both
77 foreign and domestic, is the subject of extensive federal and
78 state regulation designed to protect the marine environment and
79 the health, safety, and welfare of the general public and those
80 involved in conducting that commerce, and
81 WHEREAS, the economic impact of a seaport extends far
82 beyond the boundaries of the local jurisdiction in which the
83 port is located, materially contributing to the economies of
84 multiple cities and counties within the region and to the
85 economy of this state as a whole, and
86 WHEREAS, Florida seaports currently generate nearly 900,000
87 direct and indirect jobs and contribute $117.6 billion in
88 economic value to this state through cargo and cruise
89 activities, accounting for approximately 13 percent of this
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/CS/HB 267 (2021)
Amendment No. 1
90 state's gross domestic product and $4.2 billion in state and
91 local taxes, and
92 WHEREAS, because this state is a peninsula, much of this
93 state is highly dependent upon the unimpeded flow of maritime
94 commerce through its seaports, which is made even more critical
95 when this state is threatened or impacted by natural disasters,
96 such as tropical storms and hurricanes, and
97 WHEREAS, because of its geographic location, this state is
98 a hub for global maritime commerce and is uniquely positioned to
99 capture an even larger share of this commerce as global trade
100 routes shift, and
101 WHEREAS, the international, national, statewide, and
102 regional importance of Florida seaports has long been recognized
103 in federal and state law with respect to the regulation,
104 planning, and public financing of seaport operations and
105 facilities, and
106 WHEREAS, this state is widely known as the cruise capital
107 of the world, and the cruise industry is vital to this state's
108 economy, contributing more than $9 billion in direct spending on
109 an annual basis and supporting 159,000 jobs with more than $8
110 billion in total wages and salaries before the current pandemic,
111 and
112 WHEREAS, 8.3 million passengers boarded cruises from one of
113 this state's five cruise ports in 2019, accounting for 60
114 percent of embarkations in the United States, generating 11
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/CS/HB 267 (2021)
Amendment No. 1
115 million passenger and crew onshore visits in both home port and
116 transit port calls in this state, and
117 WHEREAS, allowing a ballot initiative or referendum in each
118 local seaport jurisdiction to impose its own requirements on the
119 maritime commerce conducted in that port could result in abrupt
120 changes in the supply lines bringing goods into and out of this
121 state and could reasonably be expected to suppress such commerce
122 and potentially drive it out of the port and out of this state
123 in search of a more consistent and predictable operating
124 environment, thus disrupting this state's economy and
125 threatening the public's health, safety, and welfare, and
126 WHEREAS, allowing a ballot initiative or referendum in each
127 local seaport jurisdiction to impose its own requirements on the
128 maritime commerce conducted in that port could result in abrupt
129 changes in vessel traffic, frustrating the multiyear planning
130 process for all Florida seaports and the assumptions and
131 forecasts underlying federal and state financing of port
132 improvement projects, and
133 WHEREAS, this state must establish land and water
134 management policies to guide local decisions relating to growth
135 and development, protecting and optimizing the use of this
136 state's natural resources and environment while also preserving
137 private property rights and advancing the health, safety, and
138 welfare of the residents of this state, and
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/CS/HB 267 (2021)
Amendment No. 1
139 WHEREAS, the need for specific guidance and oversight in
140 the balancing of all of these interests, including the state's
141 interest in fostering tourism, is even more acute in areas of
142 critical state concern designated under part I of chapter 380,
143 which help protect significant environmental, natural, or other
144 resources of regional or statewide importance from uncoordinated
145 development, and
146 WHEREAS, areas of critical state concern generate tourism
147 from both the residents of this state and visitors to this
148 state, allowing them to directly experience and learn about
149 these unique areas and generating additional tourism in the
150 broader region and the state, and
151 WHEREAS, passenger cruise vessels allow for increased
152 tourism in areas of critical state concern while avoiding many
153 of the environmental impacts that would otherwise be generated
154 by land-based tourism with respect to transportation, utility,
155 wastewater, and other infrastructure, and
156 WHEREAS, the necessary constraints on development in areas
157 of critical state concern may increase the cost of land-based
158 tourism to such a degree that many people and families may find
159 themselves financially unable to visit these areas, and the
160 local workforce may find it more difficult to secure affordable
161 housing, and
162 WHEREAS, when considering local requirements that would
163 restrict cruise tourism in an area of critical state concern,
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/CS/HB 267 (2021)
Amendment No. 1
164 the more limited geographic and political scope of a local
165 government may make it less sensitive to the negative impact of
166 those requirements on neighboring jurisdictions and on the
167 region and the state, and
168 WHEREAS, many local and regional economies in this state
169 rely heavily on tourism, and the surrounding politics can be
170 particularly complex at a local level, significantly heightening
171 concerns over the ability of a local government to impose
172 requirements that would restrict cruise tourism, and
173 WHEREAS, in light of the matters of regional and statewide
174 concern directly and indirectly affected by such actions, a
175 local government with jurisdiction over a seaport located in or
176 adjoining an area of critical state concern should not be
177 permitted to impose its own requirements that would restrict
178 maritime commerce with respect to federally authorized passenger
179 cruise vessels, and
180 WHEREAS, due to the potential negative impacts, the
181 permissible scope of local ballot initiatives or referendums and
182 of the powers of certain local governments in areas of critical
183 state concern must be appropriately limited, NOW, THEREFORE,
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CS/HB 273
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 273 Motor Vehicle Insurance Coverage Exclusions
SPONSOR(S): Insurance & Banking Subcommittee, Plakon
TIED BILLS: IDEN./SIM. BILLS: CS/SB 420
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Insurance & Banking Subcommittee 12 Y, 3 N, As CS Rowley Luczynski
2) Commerce Committee Rowley Hamon
SUMMARY ANALYSIS
Chapter 627, part XI, F.S., Motor Vehicle and Casualty Insurance Contracts, and ch. 324, F.S., the Financial
Responsibility Law of 1955, establish motor vehicle insurance coverage requirements. Motor vehicle insurance
includes two types of coverage: financial responsibility (i.e., bodily injury, death, and property damage or
(BI/PD) and no-fault (i.e., personal injury protection or PIP). A policy providing coverage for BI/PD is required to
cover individuals named on the policy and anyone operating a motor vehicle listed on the policy when the
operator has the express or implied permission of the insured motor vehicle owner. A policy providing PIP
coverage is required to cover the motor vehicle owner, persons operating the insured motor vehicle, relatives
residing in the same household as the policyholder, passengers in the motor vehicle, anyone struck and
injured by the motor vehicle while not a passenger in a self-propelled vehicle, and anyone specifically named
on the policy. For the mandatory motor vehicle insurance coverages of BI/PD and PIP, neither the policyholder
nor the insurer can exclude an individual required to be covered by law.
Because there is no authority under the motor vehicle insurance laws for an insurer to exclude a specific
individual (i.e., an excluded named driver) from coverage, an insurer may choose not to write a policy in order
to avoid covering specific individuals (e.g., a high insurance risk driver). This results in some consumers being
denied opportunities to purchase motor vehicle insurance or having to pay more because they live with
individuals the policyholder or insurer would like to exclude from the policy. Additionally, policyholders may
have their policies cancelled if the license or registration of a co-resident is suspended or revoked.
The bill authorizes the specific exclusion of named drivers from private passenger motor vehicle insurance
coverages, except for periods when the excluded named driver is not operating a covered vehicle (e.g., when
he or she is a passenger in the vehicle), if the exclusion is discriminatory, or if the exclusion is inconsistent with
filed underwriting guidelines. The exclusion of a named driver is contingent upon the written consent of the
named insured. The bill requires insurers to list excluded drivers on the policy’s declarations page or on a
policy endorsement.
The bill does not appear to have a fiscal impact on state or local government. It has positive and negative
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: h0273b.COM
DATE: 3/25/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Chapter 627, part XI, F.S., Motor Vehicle and Casualty Insurance Contracts, and ch. 324, F.S., the
Financial Responsibility Law of 1955, establish motor vehicle insurance coverage requirements.
Owners and operators of motor vehicles must maintain the ability to respond in damages at specified
minimum amounts for personal injury protection, bodily injury or death, and property damage.
Motor vehicle insurance includes two types of coverage: financial responsibility (i.e., bodily injury,
death, and property damage or BI/PD) and no-fault (i.e., personal injury protection or PIP). A policy
providing coverage for bodily injury, death, and property damage is required to provide coverage for: 1
Individuals named on the policy; and
Anyone operating a motor vehicle listed on the policy when the operator has the express or
implied permission of the insured motor vehicle owner.
A policy providing PIP coverage is required to cover: 2
The owner of the motor vehicle;
Persons operating the insured motor vehicle;
Relatives residing in the same household3 as the policyholder;
Passengers in the motor vehicle;
Anyone struck by the motor vehicle who suffers bodily injury while not occupying a self-
propelled vehicle; and
Anyone specifically named on the policy.
For the mandatory motor vehicle insurance coverages of BI/PD and PIP, neither the policyholder nor
the insurer can exclude an individual required to be covered by law. 4 The law also prohibits an insurer
from “knowingly making or permitting unfair discrimination between individuals of the same actuarially
supportable class and equal expectation of life.”5 However, an insurer may cancel a motor vehicle
insurance policy if the policyholder or any operator who resides in the same household or customarily
operates a motor vehicle insured under the policy has her or his driver license revoked or suspended.6
Because the law does not expressly permit insurers to exclude or remove specifically named
individuals from motor vehicle insurance policies, individuals with resident relatives considered by
insurers to be high insurance risks may have existing policies cancelled and/or be denied opportunities
to purchase new policies.
Effect of the Bill
The bill authorizes insurers and the named insured to exclude specific individuals from a private
passenger motor vehicle insurance policy. An excluded individual would not be covered for damages
1 S. 324.151(1), F.S.
2 Ss. 627.736(1) and (4)(e) and 627.7407(5)(b), F.S.
3 “Relative residing in the same household” means a relative of any degree by blood or by marriage who usually makes
her or his home in the same family unit, whether or not temporarily living elsewhere. S. 627.732(6), F.S.
4 The insurer may shift certain liabilities from BI/PD and PIP coverage to uninsured/underinsured vehicle coverage (UM).
S. 627.727(3)(c), F.S. UM coverage includes damages caused to a policyholder, a resident relative of the policyholder, or
an individual named on the policy who is injured by non-family member who was operating an insured vehicle, if the BI/PD
and PIP coverage excludes coverage of these damages.
5 S. 626.9541(1)(g), F.S.
6 Ss. 627.7275 and 627.728, F.S.
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that occur if he or she operates a motor vehicle that is insured under a policy that excludes the
individual by name. The bill prohibits exclusion for periods when the excluded named driver is not
operating a motor vehicle covered under the policy (e.g., a passenger in the vehicle), if the exclusion is
discriminatory, or if the exclusion is inconsistent with the underwriting guidelines filed by the insurer.
The exclusion is contingent upon the written consent of the named insured. The bill requires insurers to
list excluded named drivers on the policy’s declarations page or on a policy endorsement.
B. SECTION DIRECTORY:
Section 1. Creates s. 627.747, F.S., relating to named driver exclusion.
Section 2. Amends s. 324.151, F.S., relating to motor vehicle liability policies; required provisions.
Section 3. Amends s. 627.736, F.S., relating to required personal injury protection benefits; exclusions;
priority; claims.
Section 4. Amends s. 627.7407, F.S., relating to application of the Florida Motor Vehicle No-Fault Law.
Section 5. 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 positively affect consumers by increased availability and/or lowered premiums of motor
vehicle insurance written with named driver exclusions. However, high-risk consumers may experience
increased application denials or higher premiums if they need to secure their own coverage following
exclusion from a policy.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
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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
On March 4, 2021, the Insurance & Banking Subcommittee considered the bill, adopted one amendment, and
reported the bill favorably as a committee substitute. The amendment clarifies that an individual may not be
excluded from a motor vehicle policy solely because of his or her race, color, religion, sex, national origin, age,
handicap, pregnancy, or marital status.
The analysis is drafted to the committee substitute as passed by the Insurance & Banking 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 273 2021
1 A bill to be entitled
2 An act relating to motor vehicle insurance coverage
3 exclusions; creating s. 627.747, F.S.; providing that
4 private passenger motor vehicle policies may exclude
5 certain identified individuals from specified
6 coverages under certain circumstances; providing that
7 such policies may not exclude coverage under certain
8 circumstances; amending ss. 324.151, 627.736, and
9 627.7407, F.S.; conforming provisions to changes made
10 by the act; providing an effective date.
11
12 Be It Enacted by the Legislature of the State of Florida:
13
14 Section 1. Section 627.747, Florida Statutes, is created
15 to read:
16 627.747 Named driver exclusion.—
17 (1) A private passenger motor vehicle policy may exclude
18 an identified individual who is not a named insured from the
19 following coverages while the identified individual is operating
20 a motor vehicle, provided the identified individual is named on
21 the declarations page or by endorsement and the named insured
22 consents in writing to such exclusion:
23 (a) Notwithstanding the Florida Motor Vehicle No-Fault
24 Law, the personal injury protection coverage specifically
25 applicable to the identified individual's injuries, lost wages,
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26 and death benefits.
27 (b) Property damage liability coverage.
28 (c) Bodily injury liability coverage, if required by law
29 and purchased by the named insured.
30 (d) Uninsured motorist coverage for any damages sustained
31 by the identified excluded individual, if the named insured has
32 purchased such coverage.
33 (e) Any coverage the named insured is not required by law
34 to purchase.
35 (2) A private passenger motor vehicle policy may not
36 exclude coverage when:
37 (a) The identified individual is injured while not
38 operating a motor vehicle;
39 (b) The identified individual is being excluded solely
40 because of his or her race, color, religion, sex, national
41 origin, age, handicap, pregnancy, or marital status; or
42 (c) The exclusion is inconsistent with the underwriting
43 rules filed by the insurer pursuant to s. 627.0651(13)(a).
44 Section 2. Paragraph (a) of subsection (1) of section
45 324.151, Florida Statutes, is amended to read:
46 324.151 Motor vehicle liability policies; required
47 provisions.—
48 (1) A motor vehicle liability policy to be proof of
49 financial responsibility under s. 324.031(1), shall be issued to
50 owners or operators under the following provisions:
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51 (a) An owner's liability insurance policy must shall
52 designate by explicit description or by appropriate reference
53 all motor vehicles with respect to which coverage is thereby
54 granted, must and shall insure the owner named therein, and,
55 except for a named driver excluded under s. 627.747, must insure
56 any other person as operator using such motor vehicle or motor
57 vehicles with the express or implied permission of such owner
58 against loss from the liability imposed by law for damage
59 arising out of the ownership, maintenance, or use of such motor
60 vehicle or motor vehicles within the United States or the
61 Dominion of Canada, subject to limits, exclusive of interest and
62 costs with respect to each such motor vehicle as is provided for
63 under s. 324.021(7). Insurers may make available, with respect
64 to property damage liability coverage, a deductible amount not
65 to exceed $500. In the event of a property damage loss covered
66 by a policy containing a property damage deductible provision,
67 the insurer shall pay to the third-party claimant the amount of
68 any property damage liability settlement or judgment, subject to
69 policy limits, as if no deductible existed.
70 Section 3. Subsection (1) of section 627.736, Florida
71 Statutes, is amended to read:
72 627.736 Required personal injury protection benefits;
73 exclusions; priority; claims.—
74 (1) REQUIRED BENEFITS.—An insurance policy complying with
75 the security requirements of s. 627.733 must provide personal
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76 injury protection to the named insured, relatives residing in
77 the same household unless excluded under s. 627.747, persons
78 operating the insured motor vehicle, passengers in the motor
79 vehicle, and other persons struck by the motor vehicle and
80 suffering bodily injury while not an occupant of a self-
81 propelled vehicle, subject to subsection (2) and paragraph
82 (4)(e), to a limit of $10,000 in medical and disability benefits
83 and $5,000 in death benefits resulting from bodily injury,
84 sickness, disease, or death arising out of the ownership,
85 maintenance, or use of a motor vehicle as follows:
86 (a) Medical benefits.—Eighty percent of all reasonable
87 expenses for medically necessary medical, surgical, X-ray,
88 dental, and rehabilitative services, including prosthetic
89 devices and medically necessary ambulance, hospital, and nursing
90 services if the individual receives initial services and care
91 pursuant to subparagraph 1. within 14 days after the motor
92 vehicle accident. The medical benefits provide reimbursement
93 only for:
94 1. Initial services and care that are lawfully provided,
95 supervised, ordered, or prescribed by a physician licensed under
96 chapter 458 or chapter 459, a dentist licensed under chapter
97 466, a chiropractic physician licensed under chapter 460, or an
98 advanced practice registered nurse registered under s. 464.0123
99 or that are provided in a hospital or in a facility that owns,
100 or is wholly owned by, a hospital. Initial services and care may
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101 also be provided by a person or entity licensed under part III
102 of chapter 401 which provides emergency transportation and
103 treatment.
104 2. Upon referral by a provider described in subparagraph
105 1., followup services and care consistent with the underlying
106 medical diagnosis rendered pursuant to subparagraph 1. which may
107 be provided, supervised, ordered, or prescribed only by a
108 physician licensed under chapter 458 or chapter 459, a
109 chiropractic physician licensed under chapter 460, a dentist
110 licensed under chapter 466, or an advanced practice registered
111 nurse registered under s. 464.0123, or, to the extent permitted
112 by applicable law and under the supervision of such physician,
113 osteopathic physician, chiropractic physician, or dentist, by a
114 physician assistant licensed under chapter 458 or chapter 459 or
115 an advanced practice registered nurse licensed under chapter
116 464. Followup services and care may also be provided by the
117 following persons or entities:
118 a. A hospital or ambulatory surgical center licensed under
119 chapter 395.
120 b. An entity wholly owned by one or more physicians
121 licensed under chapter 458 or chapter 459, chiropractic
122 physicians licensed under chapter 460, advanced practice
123 registered nurses registered under s. 464.0123, or dentists
124 licensed under chapter 466 or by such practitioners and the
125 spouse, parent, child, or sibling of such practitioners.
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126 c. An entity that owns or is wholly owned, directly or
127 indirectly, by a hospital or hospitals.
128 d. A physical therapist licensed under chapter 486, based
129 upon a referral by a provider described in this subparagraph.
130 e. A health care clinic licensed under part X of chapter
131 400 which is accredited by an accrediting organization whose
132 standards incorporate comparable regulations required by this
133 state, or
134 (I) Has a medical director licensed under chapter 458,
135 chapter 459, or chapter 460;
136 (II) Has been continuously licensed for more than 3 years
137 or is a publicly traded corporation that issues securities
138 traded on an exchange registered with the United States
139 Securities and Exchange Commission as a national securities
140 exchange; and
141 (III) Provides at least four of the following medical
142 specialties:
143 (A) General medicine.
144 (B) Radiography.
145 (C) Orthopedic medicine.
146 (D) Physical medicine.
147 (E) Physical therapy.
148 (F) Physical rehabilitation.
149 (G) Prescribing or dispensing outpatient prescription
150 medication.
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151 (H) Laboratory services.
152 3. Reimbursement for services and care provided in
153 subparagraph 1. or subparagraph 2. up to $10,000 if a physician
154 licensed under chapter 458 or chapter 459, a dentist licensed
155 under chapter 466, a physician assistant licensed under chapter
156 458 or chapter 459, or an advanced practice registered nurse
157 licensed under chapter 464 has determined that the injured
158 person had an emergency medical condition.
159 4. Reimbursement for services and care provided in
160 subparagraph 1. or subparagraph 2. is limited to $2,500 if a
161 provider listed in subparagraph 1. or subparagraph 2. determines
162 that the injured person did not have an emergency medical
163 condition.
164 5. Medical benefits do not include massage as defined in
165 s. 480.033 or acupuncture as defined in s. 457.102, regardless
166 of the person, entity, or licensee providing massage or
167 acupuncture, and a licensed massage therapist or licensed
168 acupuncturist may not be reimbursed for medical benefits under
169 this section.
170 6. The Financial Services Commission shall adopt by rule
171 the form that must be used by an insurer and a health care
172 provider specified in sub-subparagraph 2.b., sub-subparagraph
173 2.c., or sub-subparagraph 2.e. to document that the health care
174 provider meets the criteria of this paragraph. Such rule must
175 include a requirement for a sworn statement or affidavit.
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176 (b) Disability benefits.—Sixty percent of any loss of
177 gross income and loss of earning capacity per individual from
178 inability to work proximately caused by the injury sustained by
179 the injured person, plus all expenses reasonably incurred in
180 obtaining from others ordinary and necessary services in lieu of
181 those that, but for the injury, the injured person would have
182 performed without income for the benefit of his or her
183 household. All disability benefits payable under this provision
184 must be paid at least every 2 weeks.
185 (c) Death benefits.—Death benefits of $5,000 per
186 individual. Death benefits are in addition to the medical and
187 disability benefits provided under the insurance policy. The
188 insurer may pay death benefits to the executor or administrator
189 of the deceased, to any of the deceased's relatives by blood,
190 legal adoption, or marriage, or to any person appearing to the
191 insurer to be equitably entitled to such benefits.
192
193 Only insurers writing motor vehicle liability insurance in this
194 state may provide the required benefits of this section, and
195 such insurer may not require the purchase of any other motor
196 vehicle coverage other than the purchase of property damage
197 liability coverage as required by s. 627.7275 as a condition for
198 providing such benefits. Insurers may not require that property
199 damage liability insurance in an amount greater than $10,000 be
200 purchased in conjunction with personal injury protection. Such
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201 insurers shall make benefits and required property damage
202 liability insurance coverage available through normal marketing
203 channels. An insurer writing motor vehicle liability insurance
204 in this state who fails to comply with such availability
205 requirement as a general business practice violates part IX of
206 chapter 626, and such violation constitutes an unfair method of
207 competition or an unfair or deceptive act or practice involving
208 the business of insurance. An insurer committing such violation
209 is subject to the penalties provided under that part, as well as
210 those provided elsewhere in the insurance code.
211 Section 4. Paragraph (a) of subsection (5) of section
212 627.7407, Florida Statutes, is amended to read:
213 627.7407 Application of the Florida Motor Vehicle No-Fault
214 Law.—
215 (5) No later than November 15, 2007, each motor vehicle
216 insurer shall provide notice of the provisions of this section
217 to each motor vehicle insured who is subject to subsection (1).
218 The notice is not subject to approval by the Office of Insurance
219 Regulation. The notice must clearly inform the policyholder:
220 (a) That beginning on January 1, 2008, Florida law
221 requires the policyholder to maintain personal injury protection
222 ("PIP") insurance coverage and that this insurance pays covered
223 medical expenses for injuries sustained in a motor vehicle crash
224 by the policyholder, passengers, and relatives residing in the
225 policyholder's household unless excluded under s. 627.747.
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226 Section 5. This act shall take effect July 1, 2021.
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COMMERCE COMMITTEE
CS/HB 273 by Rep. Plakon
Motor Vehicle Insurance Coverage Exclusions
AMENDMENT SUMMARY
April 19, 2021
Amendment 1 by Rep. Plakon (lines 14-69):
• Provides that a private passenger motor vehicle policy may exclude coverages for all
claims or suits resulting from the operation of a motor vehicle by an identified individual
who is not a named insured, provided the identified individual is named on the
declarations page or by endorsement and the named insured consents in writing to such
exclusion.
• Clarifies that the identified individual must comply with existing financial responsibility
and security requirements before operating a motor vehicle, but that such compliance
does not affect the validity of a policy’s exclusion of coverage.
• Makes changes to refer to the excluded named driver consistently as the “identified
individual”.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 273 (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 Plakon offered the following:
3
4 Amendment (with title amendment)
5 Remove lines 14-69 and insert:
6 Section 1. Section 627.747, Florida Statutes, is created
7 to read:
8 627.747 Named driver exclusion.—
9 (1) A private passenger motor vehicle policy may exclude
10 the following coverages for all claims or suits resulting from
11 the operation of a motor vehicle by an identified individual who
12 is not a named insured, provided the identified individual is
13 named on the declarations page or by endorsement and the named
14 insured consents in writing to such exclusion:
15 (a) Notwithstanding the Florida Motor Vehicle No-Fault
16 Law, the personal injury protection coverage specifically
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 273 (2021)
Amendment No. 1
17 applicable to the identified individual's injuries, lost wages,
18 and death benefits.
19 (b) Property damage liability coverage.
20 (c) Bodily injury liability coverage, if required by law
21 and purchased by the named insured.
22 (d) Uninsured motorist coverage for any damages sustained
23 by the identified individual, if the named insured has purchased
24 such coverage.
25 (e) Any coverage the named insured is not required by law
26 to purchase.
27 (2) A private passenger motor vehicle policy may not
28 exclude coverage when:
29 (a) The identified individual is injured while not
30 operating a motor vehicle;
31 (b) The identified individual is being excluded solely
32 because of his or her race, color, religion, sex, national
33 origin, age, handicap, pregnancy, or marital status; or
34 (c) The exclusion is inconsistent with the underwriting
35 rules filed by the insurer pursuant to s. 627.0651(13)(a).
36 (3) An identified individual excluded pursuant to this
37 section must:
38 (a) Establish, maintain, and show proof of financial
39 ability to respond for damages arising out of the ownership,
40 maintenance or use of a motor vehicle as required by chapter
41 324; and
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 273 (2021)
Amendment No. 1
42 (b) Maintain security as required by s. 627.733.
43 (4) An identified individual's failure to comply with
44 subsection (3) will not invalidate a properly executed exclusion
45 issued in compliance with subsections (1) and (2).
46 Section 2. Paragraph (a) of subsection (1) of section
47 324.151, Florida Statutes, is amended to read:
48 324.151 Motor vehicle liability policies; required
49 provisions.—
50 (1) A motor vehicle liability policy to be proof of
51 financial responsibility under s. 324.031(1), shall be issued to
52 owners or operators under the following provisions:
53 (a) An owner's liability insurance policy must shall
54 designate by explicit description or by appropriate reference
55 all motor vehicles with respect to which coverage is thereby
56 granted, must and shall insure the owner named therein, and,
57 except for an identified individual excluded under s. 627.747,
58 must insure any other person as operator using such motor
59 vehicle or motor vehicles with the express or implied permission
60 of such owner against loss from the liability imposed by law for
61 damage arising out of the ownership, maintenance, or use of such
62 motor vehicle or motor vehicles within the United States or the
63 Dominion of Canada, subject to limits, exclusive of interest and
64 costs with respect to each such motor vehicle as is provided for
65 under s. 324.021(7). Insurers may make available, with respect
66 to property damage liability coverage, a deductible amount not
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Bill No. CS/HB 273 (2021)
Amendment No. 1
67 to exceed $500. In the event of a property damage loss covered
68 by a policy containing a property damage deductible provision,
69 the insurer shall pay to the third-party claimant the amount of
70 any property damage liability settlement or judgment, subject to
71 policy limits, as if no deductible existed.
72
73 -----------------------------------------------------
74 T I T L E A M E N D M E N T
75 Remove line 8 and insert:
76 circumstances; requiring identified individual to meet certain
77 requirements for financial responsibility; providing that the
78 exclusion remains valid under specified circumstances; amending
79 ss. 324.151, 627.736, and
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CS/HB 305
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 305 Insurance
SPONSOR(S): Rommel and others
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Insurance & Banking Subcommittee 12 Y, 2 N, As CS Fortenberry Luczynski
2) Civil Justice & Property Rights Subcommittee 11 Y, 7 N Mawn Jones
3) Commerce Committee Fortenberry Hamon
SUMMARY ANALYSIS
The bill makes several changes related to insurance:
Residential Property Insurance Claims for Roof Damage – Establishes that a contractor or unlicensed
person acting on behalf of the contractor may not solicit or incentivize the filing of a roof damage insurance claim
by a residential property owner or interpret policy provisions. It also establishes that a public adjuster, a public
adjuster apprentice, or unlicensed persons acting on their behalf may not incentivize the filing of a roof damage
insurance claim by a residential property insurance owner.
Office of Insurance Regulation (OIR) – Authority to examine managing general agents (MGAs) – Clarifies
that OIR has the authority to examine MGAs, including affiliates of insurers, as it examines insurers, even if the
MGA represents a single domestic insurer. It requires that each insurer paying an affiliate produce information
about fees paid to the affiliate upon request by OIR. It also requires that all MGAs execute contracts with the
insurers they do business with even if they are affiliates of the insurers.
Collection of property insurance claims litigation data by OIR – All insurers with a Florida certificate of
authority must file quarterly and annual reports with OIR that contain various financial data and actuarial
opinions. However, they are not required to collect or report data regarding the litigation of property insurance
claims. The bill establishes that each insurer or insurer group doing business in Florida shall file specific data
regarding litigation of personal and commercial residential property insurance claims on a quarterly basis.
Citizens Property Insurance Corporation (Citizens) – Makes several changes to the operations of, and
requirements for, Citizens, the state-run property insurer:
o Revises the eligibility for residential property owners to obtain coverage from Citizens so that they are
not eligible for Citizens’ coverage if they can obtain coverage from private insurers that is less than 20
percent greater than the premium for comparable coverage from Citizens.
o Establishes that if Citizens does not buy reinsurance to cover its projected 100-year probable maximum
loss, it must still include the cost of such reinsurance in its rate calculations.
o Establishes that no employees of Citizens may receive salaries in excess of 150 percent of the salary
received by the head of OIR, with certain exceptions.
Notice of property insurance claims – Notice of hurricane or windstorm loss must be provided to a property
insurer within three years of the date of loss. Notice for all other types of property insurance claims must be
provided within five years of the date of loss. The bill changes the notice of claim deadlines in the Insurance
Code so that notice of any property insurance claim must be provided to a property insurer within two years of
the date of loss.
Presuit notice and demand requirements for property insurance claims – Creates new statutory
requirements for residential or commercial property suits that are not brought by an assignee, including a ten-
day presuit notice and demand, after a determination of coverage, before bringing suit against an insurer. An
insurer served with this notice must respond in writing within ten days by either making a settlement offer or
requiring participation in an appraisal or alternative dispute resolution proceeding as provided for in the policy.
The bill has no impact on state or local government revenues or expenditures. It may have a positive direct
economic impact 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 .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Residential Property Insurance Claims for Roof Damage
Background
The Florida Office of Insurance Regulation (OIR) has reported a significant increase in the number of
roof damage claims, many of which include litigation.1 These roof damage claims include claims made
by residential property owners after being solicited to file an insurance claim that they may not
otherwise have filed but for the promise of a new roof at no cost to the property owner.2
Effect of the Bill
The bill limits certain property insurance practices by contractors, public adjusters, public adjuster
apprentices, and those unlicensed persons acting on their behalf.
Contractors
The bill establishes that no contractor, including a general, building, residential, or roofing contractors,
or someone acting on the contractor’s behalf, may:
Solicit a residential property owner to file an insurance claim.
Offer an incentive to a residential property owner for allowing the inspection of the residential
property owner’s roof or for making an insurance claim for roof damage.
Offer or accept any compensation or reward for referral of services for which property insurance
proceeds are payable.
Interpret policy provisions, advise an insured about policy provisions, or adjust claims on behalf
of an insurer unless licensed as a public adjuster.
Provide an insured with an agreement authorizing repairs without providing a good faith
estimate of the cost of repairs.
The bill establishes that a contractor may not enter into a contract with a residential property owner to
repair or replace a roof without including notice in the contract that the contractor is prohibited from
engaging in the above acts. If the contractor fails to include the notice in the contract, the property
owner may void the contract within 10 days of its execution.
Public Adjusters
The bill establishes that a public adjuster, public adjuster apprentice, or those acting on their behalf
may not:
Offer an incentive to a residential property owner for allowing the inspection of the residential
property owner’s roof or for making an insurance claim for roof damage.
Offer or receive compensation or a reward for referral of any services for which property
insurance proceeds would be used for roofing repairs or replacement.
Penalties
1 Report from David Altmaier, Florida Insurance Commissioner, to Chair Blaise Ingoglia, Commerce Committee, regarding cost drivers
affecting Florida’s insurance rates, p. 7 (Feb. 24, 2021).
2 Id. A “free” roof replacement may be achieved by giving a residential property owner whose policy provides for replacement cost
coverage for a roof a gift card or something else valued at the amount of the deductible under the policy so that the entire cost of a new
roof is paid by the insurer and the individual soliciting the residential property owner.
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The bill provides that any contractor, public adjuster, public adjuster apprentice, or unlicensed person
acting on their behalf may be subject to a fine of up to $10,000 per violation for each of the statutory
prohibitions established. Finally, the bill provides that any unlicensed person who engages in the
prohibited acts shall be guilty of unlicensed contracting or public adjusting, as applicable.
OIR – Authority to Examine Managing General Agents (MGAs)
Background
MGAs
An MGA is a specialized type of insurance agent or broker that has underwriting authority from an
insurer.3 MGAs can perform certain functions that insurers typically handle, including binding coverage,
underwriting and pricing, agent appointments, and claims adjusting and settlement.4 An MGA may be
an affiliate of an insurer. Section 624.10(1), F.S., defines an affiliate as an entity that exercises control
over or is directly or indirectly controlled by an insurer. Under current law, MGAs must enter into
contracts with insurers with which they do business unless the MGA is a controlled or controlling person
of the insurer (i.e., an affiliate).5 These contracts must specify the division of responsibilities between
the insurer and the MGA.6
Examination of Insurers and MGAs
OIR is responsible for examining the affairs, transactions, accounts, records, and assets of each insurer
that holds a certificate of authority to transact insurance business in Florida.7 Examination authority
extends to the examination of MGAs8 unless the MGA solely represents a single domestic insurer.9
With certain exceptions, OIR must examine domestic insurers10 at least once every five years and the
exam shall cover the preceding five fiscal years.11
As part of the examination process, all persons being examined must make available to OIR the
accounts, records, documents, files, information, assets, and matters in their possession or control that
relate to the subject of the examination.12 As part of an examination, OIR reviews contracts between
insurers and MGAs, so that it can determine how much an insurer is paying its MGA and what services
the insurer is receiving for the fee it pays. However, the lack of contracts between insurers and their
affiliate MGAs sometimes makes it difficult to determine how much the insurer is paying and what
services it is receiving from the MGA.
Effect of the Bill
The bill clarifies that OIR has the same authority to examine MGAs as it has to examine insurers,
whether or not an MGA is an affiliate of an insurer. This authority applies even if the MGA solely
represents a single domestic insurer. The bill also requires each insurer paying an affiliate to produce
information regarding the fee paid to the affiliate upon request by OIR. OIR may determine whether the
fee an insurer pays to an affiliate is fair and reasonable and, in so doing, may consider the actual cost
of the services being provided in exchange for the fee. Further, the bill establishes that all MGAs must
execute contracts with the insurers that they do business with, even if they are MGAs that control, or
are controlled by, an insurer.
3 IRMI, https://www.irmi.com/term/insurance-definitions/managing-general-agent (last visited Apr. 2, 2021).
4 Id.
5 S. 626.7451, F.S.
6 Id.
7 S. 624.316(1)(a), F.S.
8 Id.
9 S. 626.7452, F.S.
10 A domestic insurer is one formed under the laws of Florida. S. 624.06(1), F.S.
11 S. 624.316(2)(a), F.S. While s. 624.316(1)(a), F.S., clearly states that OIR may examine MGAs, because some MGAs are considered
affiliates of insurers, and s. 624.316(2)(a), F.S., does not specify that OIR may examine affiliates in the same way as insurers, OIR has
indicated that some MGAs have not been completely cooperative with the examination process.
12 S. 624.318(2), F.S.
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Collection of Property Insurance Claims Litigation Data by OIR
Background
All insurers with a Florida certificate of authority to transact insurance business must file quarterly and
annual reports with OIR containing various financial data and actuarial opinions.13 However, the law
does not currently specify that insurers must report data regarding the litigation of claims.
OIR recently conducted a data survey of property insurers to gather information regarding the litigation
of personal or commercial residential property insurance claims.14 In response to this survey, several
insurers indicated that they could not provide OIR with answers to questions related to litigation trends
because they did not collect the requested data as part of their claims evaluation and adjusting
process.15
Effect of the Bill
The bill establishes that each insurer or insurer group doing business in Florida must provide specific
pieces of data regarding litigation of personal and commercial residential property insurance claims to
OIR on a quarterly basis. This data includes, but is not limited to, the following information on a per
claim basis:
Type of policy;
Date, location, and type of loss;
Dates on which the claim was reported to the insurer, closed by the insurer, and reopened by
the insurer;
Whether the claimant had a public adjuster or an attorney;
Total amounts that the insurer paid for indemnity, loss adjustment expenses,16 and insured’s
attorney fees;
Whether the insured’s attorney requested that a contingency risk multiplier (CRM)17 be applied
to the attorney fees calculation and, if so, what CRM was applied.
If insurers collect and report this data, OIR and the Legislature should be able to more effectively
identify current and emerging property insurance litigation trends that may be affecting insurance
rates.18
Citizens Property Insurance Corporation (Citizens)
Citizens is a state-created, not-for-profit, tax-exempt government entity that is an integral part of the
state, whose public purpose is to provide property insurance to those unable to find affordable
coverage in the private market.19
13 S. 624.424, F.S.
14 Altmaier, supra, note 1, at 12.
15 Id.
16 Loss adjustment expenses are the costs associated with investigating and adjusting losses or insurance claims. IRMI,
https://www.irmi.com/term/insurance-definitions/loss-adjustment-expense (last visited Apr. 2, 2021).
17 A CRM is a multiplier applied to attorney fees that reflects the risk of attorneys accepting, on a contingency fee basis, cases that may
be difficult to win. See e.g., Joyce v. Federated Nat'l Ins. Co., 228 So. 3d 1122 (Fla. 2017).
18 Altmaier, supra, note 1, at 12.
19 S. 627.351(6)(a)1., F.S.
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Eligibility and Rates
Background
New applicants are eligible for coverage from Citizens if no private carrier will write them a policy for a
premium that is less than 15 percent greater than what Citizens would offer them for comparable
coverage.20 The rate cap, also known as the “glide path,” is not closing the gap between Citizens rates
and private market rates. Instead, because of the rate cap and the increasing rates of private property
insurance, the gap is growing and making Citizens more like a competitor to private insurers than an
insurer of last resort. Annual rate increases for existing Citizens’ policyholders are capped at no more
than 10 percent for any single policy.21 It is unclear if, or how, the law allows OIR to approve a rate
reduction for Citizens.
Because Citizens’ rates are often well below those of private carriers, Citizens may be more
competitive than otherwise intended. Due to Citizens’ structure, its rates do not contain certain
elements that the rates of private insurers contain. Citizens does not pay taxes like private carriers do
and does not need to purchase as much reinsurance as private carriers do due to higher levels of
capital and surplus.
Current law also requires that Citizens make its best efforts to procure catastrophe reinsurance at
reasonable rates to cover its projected 100-year probable maximum loss.22 Due to the high cost of
reinsurance over the recent years, Citizens has determined that it is not available at reasonable rates
and has not purchased it. This lack of purchase has contributed to its rates remaining more competitive
and more consumers being eligible for coverage from Citizens.
Effect of the Bill
The bill establishes that residential property owners are not eligible for coverage from Citizens if they
can obtain coverage from private insurers that is less than 20 percent greater than the premium for
comparable coverage from Citizens.
The bill also establishes that on or after January 1, 2022, Citizens must implement rate increases that
do not exceed the following percentages for any single policy that it issues:
Eleven percent for 2022;
Twelve percent for 2023;
Thirteen percent for 2024;
Fourteen percent for 2025;
Fifteen percent for 2026 and all subsequent years.
Additionally, the bill prohibits Citizens from filing with OIR a request for the approval of a rate reduction
at any time.
The bill clarifies that Citizens need not purchase catastrophe reinsurance to cover its projected 100-
year probable maximum loss if it is not available at reasonable rates. However, Citizens must include
the cost of this reinsurance in its rate calculations even if it does not purchase the reinsurance.
20 S. 627.351(6)(c)5.a., F.S.
21 S. 627.351(6)(n)6., F.S.
22 S. 627.351(6)(c)9., F.S. “Probable maximum loss” refers to the value that may be reasonably expected to be lost in a single casualty.
IRMI, https://www.irmi.com/term/insurance-definitions/probable-maximum-loss (last visited Apr. 2, 2021). If an insurer is buying
reinsurance to cover its 100-year probable maximum loss, it is purchasing reinsurance to cover the maximum loss that has a chance of
occurring once in 100 years.
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Salaries of Citizens’ Personnel
Background
Citizens operates pursuant to a plan of operation (plan) that is approved by the Financial Services
Commission (FSC).23 Pursuant to the applicable statute, the plan may contain certain criteria regarding
Citizens’ employees.24 Additionally, the applicable statute specifies that candidates for senior
management positions with Citizens must undergo background checks, that employees must attest
annually that they do not have any conflicts of interests with their employment, and that certain
employees of Citizens are subject to ethics disclosures.25 However, neither the statute nor the plan
provide any parameters for the salaries that Citizens may pay its employees.
Effect of the Bill
The bill provides statutory guidance that Citizens can utilize in its plan to set parameters for employee
compensation. Specifically, the bill establishes that no employees of Citizens may receive salaries in
excess of 150 percent of the salary received by the Florida Insurance Commissioner, with certain
exceptions. Anyone employed by Citizens as of June 30, 2021, whose salary exceeds this cap may
keep his or her salary, but may not receive a raise. Anyone employed by Citizens whose salary does
not exceed this cap as of June 30, 2021, may receive a raise as long as that raise does not cause his
or her salary to exceed this cap.
Notice of Property Insurance Claims
Background
Until 2011, the Florida Insurance Code (Code)26 did not contain a time limit for giving notice of any type
of property insurance claim. Section 95.11, F.S., requires that actions on contracts be brought within
five years. Because an insurance policy is a contract, the five-year statute of limitations for contract
actions generally applied to claims under insurance policies. Since a claim must have been made
before a policyholder could sue for breach of contract, and a policyholder had five years to sue for
breach of contract, the claim must have been made within five years of the date of loss.
Section 627.70132, F.S., enacted in 2011, established that notice of any hurricane or windstorm claim,
supplemental claim, or reopened claim27 under a property insurance policy must be provided to an
insurer within three years after the hurricane made landfall or the windstorm caused the covered
damage. Any claim for which notice is not given within the three-year timeframe is barred.28 The three-
year time limit for providing notice of a hurricane or windstorm claim does not affect the five-year
statute of limitations for bringing suit under s. 95.11, F.S.29 This means that while notice of a windstorm
or hurricane claim must be provided to an insurer within three years of the date of loss, suit may still be
brought for an additional two years past the notice deadline.30 The time limit for notice of all other
property insurance claims besides hurricane and windstorm claims has remained equal to the five-year
statute of limitations because statutes do not specify otherwise.
23 S 627.351(6)(a)2., F.S. The FSC is composed of the Governor, Attorney General, Chief Financial Officer, and Commissioner of
Agriculture. S. 20.121(3), F.S.
24 S. 627.351(6)(c)3., F.S.
25 S. 627.351(6)(d), F.S.
26 The Florida Insurance Code is comprised of chapters 624-632, 634-636, 641, 642, 648, and 651, F.S.
27 S. 627.70132, F.S., defines both “supplemental claim” and “reopened claim” as “any additional claim for recovery from the insurer for
losses from the same hurricane or windstorm which the insurer has previously adjusted pursuant to the initial claim.” Because these
terms have the same definition, it is unclear why the statute uses both of them.
28 S. 627.70132, F.S.
29 Id.
30 Often, the type of suit that an insured brings against an insurer is a breach of contract suit based upon a denial of a claim.
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Effect of the Bill
The bill changes the notice of claim deadlines in the Code so that notice of any property insurance
claim, including a claim made under a property insurance policy issued by an eligible surplus lines
insurer, must be provided to a property insurer within two years of the date of loss. It also makes
technical changes to the statute regarding alternative dispute resolution of property insurance claims so
that the changes to the notice of claim statute do not conflict with that statute.31
Presuit Notice and Demand Requirements for Property Insurance Claims
Background
Under existing law, within 90 days after a residential property insurer receives a notice of an initial,
reopened, or supplemental property insurance claim from a policyholder, the insurer must pay or deny
the claim or a portion of the claim, unless the failure to pay is due to circumstances beyond the
insurer’s control which reasonably prevent payment.32 In some circumstances, a claimant will hire an
attorney and file suit against an insurer before the expiration of the allotted time for the insurer to pay or
deny a claim. In contrast, as a condition precedent to bringing a third-party cause of action to enforce
an assignment agreement against an insurer, the assignee must provide the name insured and the
assignor a written notice of intent to initiate litigation, delivered at least ten business days before filing
suit, but not before the insurer has made a determination of coverage.33
Effect of the Bill
The bill creates a new statutory section which applies to all residential and commercial property suits
not brought by an assignee. Under that section, a claimant or claimant’s attorney must give presuit
notice of intent to initiate litigation at least ten business days prior to filing suit, but not before the insurer
has made a determination of coverage as provided for under existing law.34 The notice must include the
following information:
Insurer’s acts or omissions that give rise to the suit;
Damages in dispute;
Demand;35 and
Amount of reasonable and necessary attorney fees and costs incurred by the claimant.
An insurer served with a presuit notice must respond to the notice in writing within ten business days
after receiving the notice by making a settlement offer or by requiring the claimant to participate in
appraisal or another form of alternative dispute resolution as provided for under the insurance policy.
The bill establishes that time limits for filing a suit under s. 95.11, F.S., are tolled during the ten-day
period for the insurer to respond to the presuit notice and while appraisal or alternative dispute
resolution is ongoing.
The bill also requires that a court dismiss without prejudice any claimant’s suit relating to a claim for
which presuit notice is given if the suit is commenced before the expiration of the ten-day period for the
insurer to respond. If a court dismissed a claimant’s suit under these circumstances, the claimant’s
attorney is not entitled to an award of attorney fees for services rendered before the suit’s dismissal.
Finally, the bill:
Establishes that presuit notice is admissible as evidence in a civil suit or an alternative dispute
resolution proceeding relating to the claim in which the notice is given;
31 S. 627.7015, F.S.
32 S. 627.70131, F.S. This statute is sometimes referred to as the “prompt pay” statute for property insurance claims.
33 An assignee is someone who receives policy rights through an assignment by a policyholder (assignor). IRMI,
https://www.irmi.com/term/insurance-definitions/assignee (last visited April 2, 2021). See s. 627.7152, F.S., for presuit requirements
placed on assignees.
34 S. 627.70131, F.S.
35 The bill defines demand as “the specific amount alleged to be owed by the insurer to the claimant under the residential or commercial
property insurance policy.”
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Provides that the presuit notice does not limit the evidence of attorney fees or costs, damages,
or loss, which may be offered at trial; and
Provides that the presuit notice does not relieve the insured or an assignee of the burden of
providing any other notices required by law.
B. SECTION DIRECTORY:
Section 1. Creates s. 489.147, F.S., relating to prohibited property insurance practices.
Section 2. Amends s. 624.316, F.S., relating to examination of insurers.
Section 3. Amends s. 624.318, F.S., relating to conduct of examination or investigation; access to
records; correction of accounts; appraisals.
Section 4. Amends s. 624.424, F.S., relating to annual statement and other information.
Section 5. Amends s. 626.7451, F.S., relating to managing general agents; required contract
provisions.
Section 6. Amends s. 626.7452, F.S., relating to managing general agents; examination authority.
Section 7. Amends s. 626.854, F.S., relating to "public adjuster" defined; prohibitions.
Section 8. Amends s. 627.351, F.S., relating to insurance risk reapportionment plans.
Section 9. Amends s. 627.3518, F.S., relating to Citizens Property Insurance Corporation policyholder
eligibility clearinghouse program.
Section 10. Amends s. 627.70132, F.S., relating to notice of windstorm or hurricane claim.
Section 11. Amends s. 627.7015, F.S., relating to alternative procedure for resolution of disputed
property insurance claims.
Section 12. Creates s. 627.70152, F.S., relating to suits arising under a property insurance policy.
Section 13. 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:
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None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
To the extent the bill reduces property insurance rates and claims litigation, the bill may have a positive
indeterminate impact on the private sector.
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:
The bill requires no additional rulemaking authority for OIR. While the bill requires the adoption of a
form prescribed by the FSC on which insurers will report their property insurance claims litigation data,
the Florida Insurance Code contains existing authority for the promulgation of such forms by the FSC.
C. DRAFTING ISSUES OR OTHER COMMENTS:
Although the Department of Financial Services (DFS) has very broad rulemaking authority,
consideration should be given to amending the bill to require DFS to promulgate rules regarding the
assessment of fines against public adjusters, public adjuster apprentices, and unlicensed persons
engaging in public adjusting who engage in the prohibited acts set forth in the bill.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On March 23, 2021, the Insurance & Banking Subcommittee considered a proposed committee substitute
(PCS) along with one amendment to the committee substitute and reported the bill favorably as a committee
substitute. The PCS:
Removed the contingency risk multiplier provision.
Removed the portion that clarified that that insurers are authorized to provide limited roof coverage in
personal lines residential property insurance policies by including a roof surface reimbursement
schedule.
Clarified that OIR has the same authority to examine MGAs that it has to examine insurers.
Established that each insurer or insurer group doing business in Florida must provide specific pieces of
data regarding litigation of personal and residential property insurance claims to OIR on a quarterly
basis.
Modified certain rating and eligibility requirements for Citizens.
Placed salary limits on Citizens’ employees.
Added presuit notice requirements for all residential and commercial property suits not brought by an
assignee.
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The amendment to the PCS made the following changes:
Established that no contractor, including a general, building, residential, or roofing contractor, or
someone acting on the contractor’s behalf may:
o Solicit a residential property owner to file an insurance claim.
o Offer an incentive to a residential homeowner for allowing the inspection of the residential
property owner’s roof or for making an insurance claim for roof damage.
o Offer or accept any compensation or reward for referral of services for which property
insurance proceeds are payable.
o Interpret policy provisions, advise an insured about policy provisions, or adjust claims on behalf
of an insured unless licensed as a public adjuster.
o Provide an insured with an agreement authorizing repairs without providing a good faith
estimate of the cost of the repairs.
Established that a contractor may not enter into a contract with a residential property owner to repair or
replace a roof without including notice that the contractor is prohibited from engaging in certain acts.
Established that a public adjuster, public adjuster apprentice, or those acting on their behalf may not:
o Offer an incentive to a residential homeowner for allowing the inspection of the residential
property owner’s roof or for making an insurance claim for roof damage.
o Offer or receive any compensation or reward for referral of any services for which property
insurance proceeds would be used for roofing repairs or replacement.
Provided that any contractor, public adjuster, public adjuster apprentice, or person acting on their
behalf may be subject to a fine of $10,000 per violation for each of the statutory prohibitions.
Provided that any unlicensed person who engages in the prohibited acts shall be guilty of unlicensed
contracting or public adjusting, as applicable, and is subject to a fine of $10,000 per violation for each
of the statutory prohibitions.
The analysis is drafted to the committee substitute as passed by the Insurance and Banking
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 305 2021
1 A bill to be entitled
2 An act relating to insurance; creating s. 489.147,
3 F.S.; providing definitions; prohibiting certain
4 practices by contractors; providing for disciplinary
5 proceedings; providing that the acts of any persons on
6 behalf of a contractor are considered the acts of a
7 contractor; providing that certain acts constitute
8 unlicensed contracting; providing penalties;
9 prohibiting a contractor from executing a contract
10 with a residential property owner for a roofing repair
11 or replacement unless certain notice is included;
12 authorizing the residential property owner to void the
13 contract within a specified timeframe when such notice
14 is not included; amending s. 624.316, F.S.;
15 authorizing the Office of Insurance Regulation to
16 examine insurer affiliates; amending s. 624.318, F.S.;
17 requiring insurer affiliates to provide certain items
18 and information to the office during examination or
19 investigation; amending s. 624.424, F.S.; requiring
20 property insurers to include certain data regarding
21 closed claims in their quarterly reports to the
22 office; requiring insurers to provide information
23 regarding payments to affiliates upon request by the
24 office; requiring the office to consider certain costs
25 in determining whether payments made by an insurer to
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26 an affiliate are fair and reasonable; amending s.
27 626.7451, F.S; requiring that managing general agents
28 enter into specified contracts with insurers even when
29 the managing general agents control, or are controlled
30 by, the insurers; amending s. 626.7452, F.S.;
31 providing that a managing general agent may be
32 examined as if it were the insurer even if the
33 managing general agent solely represents a single
34 domestic insurer; amending s. 626.854, F.S.;
35 prohibiting certain acts by a public adjuster, public
36 adjuster apprentice, and certain other persons;
37 providing that certain acts constitute unlicensed
38 practice of public adjusting; providing penalties;
39 amending s. 627.351, F.S.; revising a procedure that
40 the plan of operation of Citizens Property Insurance
41 Corporation must provide; requiring the corporation to
42 include the costs of catastrophe reinsurance to its
43 projected 100-year probable maximum loss in its rate
44 calculations even if the corporation does not purchase
45 such reinsurance; deleting obsolete language relating
46 to the corporation's rate filings; requiring the
47 corporation to annually implement a rate increase that
48 does not exceed a certain percent for specified years;
49 prohibiting the corporation from seeking approval by
50 the office for a rate reduction; providing limits on
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51 salaries and salary raises of current employees of the
52 corporation and employees hired by the corporation on
53 or after a specified date; amending s. 627.3518, F.S.;
54 conforming a cross-reference; amending s. 627.70132,
55 F.S.; providing that claims, supplemental claims, and
56 reopened claims under certain property insurance
57 policies for loss or damage caused by perils are
58 barred unless notice is given within a specified
59 timeframe; revising the timeframe for notice for loss
60 or damage caused by windstorm or hurricane; providing
61 date of loss for weather-related events; revising the
62 definition of the term "supplemental claim" or
63 "reopened claim" to include all perils; amending s.
64 627.7015, F.S.; conforming a provision to changes made
65 by the act; creating s. 627.70152, F.S.; providing
66 applicability; providing definitions; requiring that
67 written notice be provided to an insurer before suit
68 is filed under an insurance policy; requiring that
69 certain information be included in the notice;
70 requiring that notice be served within specified time
71 limits; requiring that an insurer provide a response
72 to the notice within specified timeframe; providing
73 for tolling of time if appropriate; requiring an
74 insurer to investigate, review, and evaluate a dispute
75 stated in the notice; requiring an insurer to
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76 investigate each claim in the notice in accordance
77 with the Florida Insurance Code; requiring a court to
78 dismiss without prejudice a claimant's suit under
79 certain circumstances; providing for evidentiary
80 requirements regarding the notice; prohibiting a court
81 from awarding attorney fees to a claimant under
82 certain circumstances; providing an effective date.
83
84 Be It Enacted by the Legislature of the State of Florida:
85
86 Section 1. Section 489.147, Florida Statutes, is created
87 to read:
88 489.147 Prohibited property insurance practices.—
89 (1) As used in this section, the term:
90 (a) "Prohibited advertisement" means any written or
91 electronic communication that encourages, instructs, or induces
92 a consumer to contact a contractor or public adjuster for the
93 purpose of making an insurance claim for roof damage. The term
94 includes, but is not limited to, door hangers, business cards,
95 magnets, flyers, pamphlets, and e-mails.
96 (b) "Soliciting" means contacting:
97 1. In person;
98 2. By electronic means, including, but not limited to, e-
99 mail, telephone, and any other real-time communication directed
100 to a specific person; or
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101 3. By delivery to a specific person.
102 (2) A contractor may not directly or indirectly engage in
103 any of the following practices:
104 (a) Soliciting a residential property owner by means of a
105 prohibited advertisement.
106 (b) Offering to a residential property owner a rebate,
107 gift, gift card, cash, coupon, waiver of any insurance
108 deductible, or any other thing of value in exchange for:
109 1. Allowing the contractor to conduct an inspection of the
110 residential property owner's roof; or
111 2. Making an insurance claim for damage to the residential
112 property owner's roof.
113 (c) Offering, delivering, receiving, or accepting any
114 compensation, inducement, or reward for the referral of any
115 services for which property insurance proceeds are payable.
116 (d) Interpreting policy provisions or advising an insured
117 regarding coverages or duties under the insured's property
118 insurance policy or adjusting a property insurance claim on
119 behalf of the insured, unless the contractor holds a license as
120 a public adjuster pursuant to part VI of chapter 626.
121 (e) Providing an insured with an agreement authorizing
122 repairs without providing a good faith estimate of the itemized
123 and detailed cost of services and materials for repairs
124 undertaken pursuant to a property insurance claim. A contractor
125 does not violate this paragraph if, as a result of the process
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126 of the insurer adjusting a claim, the actual cost of repairs
127 differs from the initial estimate.
128 (3) A contractor who violates this section is subject to
129 disciplinary proceedings as set forth in s. 489.129. A
130 contractor may receive up to a $10,000 fine for each violation
131 of this section.
132 (4) For the purposes of this section:
133 (a) The acts of any person on behalf of a contractor,
134 including, but not limited to, the acts of a compensated
135 employee or a nonemployee who is compensated for soliciting,
136 shall be considered the actions of the contractor.
137 (b) An unlicensed person who engages in an act prohibited
138 by this section is guilty of unlicensed contracting and is
139 subject to the penalties set forth in s. 489.13. Notwithstanding
140 s. 489.13(3), an unlicensed person who violates this section may
141 be fined up to $10,000 for each violation.
142 (5) A contractor may not execute a contract with a
143 residential property owner to repair or replace a roof without
144 including a notice that the contractor may not engage in the
145 practices set forth in paragraph (2)(b). If the contractor fails
146 to include such notice, the residential property owner may void
147 the contract within 10 days after executing it.
148 Section 2. Paragraph (a) of subsection (2) of section
149 624.316, Florida Statutes, is amended to read:
150 Section 624.316 Examination of insurers.—
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151 (2)(a) Except as provided in paragraph (f), the office
152 may examine each insurer, including affiliates, as often as may
153 be warranted for the protection of the policyholders and in the
154 public interest, and shall examine each domestic insurer not
155 less frequently than once every 5 years. The examination shall
156 cover the preceding 5 fiscal years of the insurer and shall be
157 commenced within 12 months after the end of the most recent
158 fiscal year being covered by the examination. The examination
159 may cover any period of the insurer's operations since the last
160 previous examination. The examination may include examination
161 of events subsequent to the end of the most recent fiscal year
162 and the events of any prior period that affect the present
163 financial condition of the insurer.
164 Section 3. Subsection (2) of section 624.318, Florida
165 Statutes, is amended to read:
166 624.318 Conduct of examination or investigation; access to
167 records; correction of accounts; appraisals.—
168 (2) Every person, including an affiliate, being examined
169 or investigated, and its officers, attorneys, employees, agents,
170 and representatives, shall make freely available to the
171 department or office or its examiners or investigators the
172 accounts, records, documents, files, information, assets, and
173 matters in their possession or control relating to the subject
174 of the examination or investigation. An agent who provides other
175 products or services or maintains customer information not
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176 related to insurance must maintain records relating to insurance
177 products and transactions separately if necessary to give the
178 department or office access to such records. If records relating
179 to the insurance transactions are maintained by an agent on
180 premises owned or operated by a third party, the agent and the
181 third party must provide access to the records by the department
182 or office.
183 Section 4. Subsection (11) of section 624.424, Florida
184 Statutes, is renumbered as subsection (12), and a new subsection
185 (11) and subsection (13) are added to that section, to read:
186 624.424 Annual statement and other information.—
187 (11) Each authorized insurer or insurer group issuing
188 personal lines or commercial lines residential property
189 insurance policies in this state shall file with the office on a
190 quarterly basis in conjunction with the statements required by
191 paragraph (1)(a) a supplemental report on an individual and
192 group basis for closed claims. The report must be on a form
193 prescribed by the commission and must include the following
194 information for each claim closed, excluding liability only
195 claims, within the reporting period in this state:
196 (a) Unique claim identification number.
197 (b) Type of policy.
198 (c) Zip code of the property where the claim occurred.
199 (d) County where the claim occurred.
200 (e) Date of loss.
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201 (f) Peril or type of loss.
202 (g) Date reported to insurer.
203 (h) Initial date closed.
204 (i) Date claim most recently reopened, if applicable.
205 (j) Most recent date closed.
206 (k) Public adjuster on the claim.
207 (l) Attorney for the claimant.
208 (m) Water mitigation firm used.
209 (n) Total indemnity paid by the insurer.
210 (o) Total loss adjustment expenses paid by the insurer.
211 (p) Amount paid for insured's attorney fees.
212 (q) Contingency fee multiplier requested to be applied to
213 the calculation of the insured's attorney fees payment, and, if
214 so, contingency risk multiplier requested.
215 (r) Contingency risk multiplier applied to the calculation
216 of the insured's attorney fees payment, and, if so, contingency
217 fee multiplier applied.
218 (s) Other information deemed necessary by the commission
219 to provide the office with the ability to track litigation and
220 claims trends occurring in the property market.
221 (13) Each insurer doing business in this state which pays
222 a fee, commission, or other financial consideration or payment
223 to any affiliate directly or indirectly is required upon request
224 to provide to the office any information the office deems
225 necessary. The fee, commission, or other financial consideration
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226 or payment to any affiliate must be fair and reasonable. In
227 determining whether the fee, commission, or other financial
228 consideration or payment is fair and reasonable, the office
229 shall consider, among other things, the actual cost of the
230 service being provided.
231 Section 5. Subsection (6) of section 626.7451, Florida
232 Statutes, is amended to read:
233 626.7451 Managing general agents; required contract
234 provisions.—No person acting in the capacity of a managing
235 general agent shall place business with an insurer unless there
236 is in force a written contract between the parties which sets
237 forth the responsibility for a particular function, specifies
238 the division of responsibilities, and contains the following
239 minimum provisions:
240 (6) The contract shall specify appropriate underwriting
241 guidelines, including:
242 (a) The maximum annual premium volume.
243 (b) The basis of the rates to be charged.
244 (c) The types of risks which may be written.
245 (d) Maximum limits of liability.
246 (e) Applicable exclusions.
247 (f) Territorial limitations.
248 (g) Policy cancellation provisions.
249 (h) The maximum policy period.
250
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251 This subsection shall not apply when the managing general agent
252 is a controlled or controlling person.
253
254 For the purposes of this section and ss. 626.7453 and 626.7454,
255 the term "controlling person" or "controlling" has the meaning
256 set forth in s. 625.012(5)(b)1., and the term "controlled
257 person" or "controlled" has the meaning set forth in s.
258 625.012(5)(b)2.
259 Section 6. Section 626.7452, Florida Statutes, is amended
260 to read:
261 Section 626.7452 Managing general agents; examination
262 authority.—The acts of the managing general agent are considered
263 to be the acts of the insurer on whose behalf it is acting. A
264 managing general agent may be examined as if it were the insurer
265 except in the case where the managing general agent solely
266 represents a single domestic insurer.
267 Section 7. Subsection (20) is added to section 626.854,
268 Florida Statutes, to read:
269 626.854 "Public adjuster" defined; prohibitions.—The
270 legislature finds that it is necessary for the protection of the
271 public to regulate public insurance adjusters and to prevent the
272 unauthorized practice of law.
273 (20)(a) Any following act by a public adjuster, a public
274 adjuster apprentice, or a person acting on behalf of a public
275 adjuster or public adjuster apprentice is prohibited and shall
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276 result in discipline as applicable under part VI of this
277 chapter:
278 1. Offering to a residential property owner a rebate,
279 gift, gift card, cash, coupon, waiver of any insurance
280 deductible, or any other thing of value in exchange for:
281 a. Allowing a contractor, a public adjuster, a public
282 adjuster apprentice, or a person acting on behalf of a public
283 adjuster or public adjuster apprentice to conduct an inspection
284 of the residential property owner's roof; or
285 b. Making an insurance claim for damage to the residential
286 property owner's roof.
287 2. Offering, delivering, receiving, or accepting any
288 compensation, inducement, or reward for the referral of any
289 services for which property insurance proceeds would be used for
290 roofing repairs or replacement.
291 (b) Notwithstanding the fine set forth in s. 626.8698, a
292 public adjuster or public adjuster apprentice may be subject to
293 a fine not to exceed $10,000 per act for a violation of this
294 subsection.
295 (c) A person who engages in an act prohibited by this
296 subsection and who is not a public adjuster or a public adjuster
297 apprentice, or is not otherwise exempt from licensure, is guilty
298 of the unlicensed practice of public adjusting and may be:
299 1. Subject to all applicable penalties set forth in part
300 VI of this chapter.
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301 2. Notwithstanding subparagraph 1., subject to a fine not
302 to exceed $10,000 per act for a violation of this subsection.
303 Section 8. Paragraphs (c) and (n) of subsection (6) of
304 section 627.351, Florida Statutes, are amended, and a new
305 paragraph (jj) is added to subsection (6) of that section, to
306 read:
307 627.351 Insurance risk apportionment plans.—
308 (6) CITIZENS PROPERTY INSURANCE CORPORATION.—
309 (c) The corporation's plan of operation:
310 1. Must provide for adoption of residential property and
311 casualty insurance policy forms and commercial residential and
312 nonresidential property insurance forms, which must be approved
313 by the office before use. The corporation shall adopt the
314 following policy forms:
315 a. Standard personal lines policy forms that are
316 comprehensive multiperil policies providing full coverage of a
317 residential property equivalent to the coverage provided in the
318 private insurance market under an HO-3, HO-4, or HO-6 policy.
319 b. Basic personal lines policy forms that are policies
320 similar to an HO-8 policy or a dwelling fire policy that provide
321 coverage meeting the requirements of the secondary mortgage
322 market, but which is more limited than the coverage under a
323 standard policy.
324 c. Commercial lines residential and nonresidential policy
325 forms that are generally similar to the basic perils of full
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326 coverage obtainable for commercial residential structures and
327 commercial nonresidential structures in the admitted voluntary
328 market.
329 d. Personal lines and commercial lines residential
330 property insurance forms that cover the peril of wind only. The
331 forms are applicable only to residential properties located in
332 areas eligible for coverage under the coastal account referred
333 to in sub-subparagraph (b)2.a.
334 e. Commercial lines nonresidential property insurance
335 forms that cover the peril of wind only. The forms are
336 applicable only to nonresidential properties located in areas
337 eligible for coverage under the coastal account referred to in
338 sub-subparagraph (b)2.a.
339 f. The corporation may adopt variations of the policy
340 forms listed in sub-subparagraphs a.-e. which contain more
341 restrictive coverage.
342 g. Effective January 1, 2013, the corporation shall offer
343 a basic personal lines policy similar to an HO-8 policy with
344 dwelling repair based on common construction materials and
345 methods.
346 2. Must provide that the corporation adopt a program in
347 which the corporation and authorized insurers enter into quota
348 share primary insurance agreements for hurricane coverage, as
349 defined in s. 627.4025(2)(a), for eligible risks, and adopt
350 property insurance forms for eligible risks which cover the
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351 peril of wind only.
352 a. As used in this subsection, the term:
353 (I) "Quota share primary insurance" means an arrangement
354 in which the primary hurricane coverage of an eligible risk is
355 provided in specified percentages by the corporation and an
356 authorized insurer. The corporation and authorized insurer are
357 each solely responsible for a specified percentage of hurricane
358 coverage of an eligible risk as set forth in a quota share
359 primary insurance agreement between the corporation and an
360 authorized insurer and the insurance contract. The
361 responsibility of the corporation or authorized insurer to pay
362 its specified percentage of hurricane losses of an eligible
363 risk, as set forth in the agreement, may not be altered by the
364 inability of the other party to pay its specified percentage of
365 losses. Eligible risks that are provided hurricane coverage
366 through a quota share primary insurance arrangement must be
367 provided policy forms that set forth the obligations of the
368 corporation and authorized insurer under the arrangement,
369 clearly specify the percentages of quota share primary insurance
370 provided by the corporation and authorized insurer, and
371 conspicuously and clearly state that the authorized insurer and
372 the corporation may not be held responsible beyond their
373 specified percentage of coverage of hurricane losses.
374 (II) "Eligible risks" means personal lines residential and
375 commercial lines residential risks that meet the underwriting
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376 criteria of the corporation and are located in areas that were
377 eligible for coverage by the Florida Windstorm Underwriting
378 Association on January 1, 2002.
379 b. The corporation may enter into quota share primary
380 insurance agreements with authorized insurers at corporation
381 coverage levels of 90 percent and 50 percent.
382 c. If the corporation determines that additional coverage
383 levels are necessary to maximize participation in quota share
384 primary insurance agreements by authorized insurers, the
385 corporation may establish additional coverage levels. However,
386 the corporation's quota share primary insurance coverage level
387 may not exceed 90 percent.
388 d. Any quota share primary insurance agreement entered
389 into between an authorized insurer and the corporation must
390 provide for a uniform specified percentage of coverage of
391 hurricane losses, by county or territory as set forth by the
392 corporation board, for all eligible risks of the authorized
393 insurer covered under the agreement.
394 e. Any quota share primary insurance agreement entered
395 into between an authorized insurer and the corporation is
396 subject to review and approval by the office. However, such
397 agreement shall be authorized only as to insurance contracts
398 entered into between an authorized insurer and an insured who is
399 already insured by the corporation for wind coverage.
400 f. For all eligible risks covered under quota share
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401 primary insurance agreements, the exposure and coverage levels
402 for both the corporation and authorized insurers shall be
403 reported by the corporation to the Florida Hurricane Catastrophe
404 Fund. For all policies of eligible risks covered under such
405 agreements, the corporation and the authorized insurer must
406 maintain complete and accurate records for the purpose of
407 exposure and loss reimbursement audits as required by fund
408 rules. The corporation and the authorized insurer shall each
409 maintain duplicate copies of policy declaration pages and
410 supporting claims documents.
411 g. The corporation board shall establish in its plan of
412 operation standards for quota share agreements which ensure that
413 there is no discriminatory application among insurers as to the
414 terms of the agreements, pricing of the agreements, incentive
415 provisions if any, and consideration paid for servicing policies
416 or adjusting claims.
417 h. The quota share primary insurance agreement between the
418 corporation and an authorized insurer must set forth the
419 specific terms under which coverage is provided, including, but
420 not limited to, the sale and servicing of policies issued under
421 the agreement by the insurance agent of the authorized insurer
422 producing the business, the reporting of information concerning
423 eligible risks, the payment of premium to the corporation, and
424 arrangements for the adjustment and payment of hurricane claims
425 incurred on eligible risks by the claims adjuster and personnel
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426 of the authorized insurer. Entering into a quota sharing
427 insurance agreement between the corporation and an authorized
428 insurer is voluntary and at the discretion of the authorized
429 insurer.
430 3. May provide that the corporation may employ or
431 otherwise contract with individuals or other entities to provide
432 administrative or professional services that may be appropriate
433 to effectuate the plan. The corporation may borrow funds by
434 issuing bonds or by incurring other indebtedness, and shall have
435 other powers reasonably necessary to effectuate the requirements
436 of this subsection, including, without limitation, the power to
437 issue bonds and incur other indebtedness in order to refinance
438 outstanding bonds or other indebtedness. The corporation may
439 seek judicial validation of its bonds or other indebtedness
440 under chapter 75. The corporation may issue bonds or incur other
441 indebtedness, or have bonds issued on its behalf by a unit of
442 local government pursuant to subparagraph (q)2. in the absence
443 of a hurricane or other weather-related event, upon a
444 determination by the corporation, subject to approval by the
445 office, that such action would enable it to efficiently meet the
446 financial obligations of the corporation and that such
447 financings are reasonably necessary to effectuate the
448 requirements of this subsection. The corporation may take all
449 actions needed to facilitate tax-free status for such bonds or
450 indebtedness, including formation of trusts or other affiliated
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451 entities. The corporation may pledge assessments, projected
452 recoveries from the Florida Hurricane Catastrophe Fund, other
453 reinsurance recoverables, policyholder surcharges and other
454 surcharges, and other funds available to the corporation as
455 security for bonds or other indebtedness. In recognition of s.
456 10, Art. I of the State Constitution, prohibiting the impairment
457 of obligations of contracts, it is the intent of the Legislature
458 that no action be taken whose purpose is to impair any bond
459 indenture or financing agreement or any revenue source committed
460 by contract to such bond or other indebtedness.
461 4. Must require that the corporation operate subject to
462 the supervision and approval of a board of governors consisting
463 of nine individuals who are residents of this state and who are
464 from different geographical areas of the state, one of whom is
465 appointed by the Governor and serves solely to advocate on
466 behalf of the consumer. The appointment of a consumer
467 representative by the Governor is deemed to be within the scope
468 of the exemption provided in s. 112.313(7)(b) and is in addition
469 to the appointments authorized under sub-subparagraph a.
470 a. The Governor, the Chief Financial Officer, the
471 President of the Senate, and the Speaker of the House of
472 Representatives shall each appoint two members of the board. At
473 least one of the two members appointed by each appointing
474 officer must have demonstrated expertise in insurance and be
475 deemed to be within the scope of the exemption provided in s.
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476 112.313(7)(b). The Chief Financial Officer shall designate one
477 of the appointees as chair. All board members serve at the
478 pleasure of the appointing officer. All members of the board are
479 subject to removal at will by the officers who appointed them.
480 All board members, including the chair, must be appointed to
481 serve for 3-year terms beginning annually on a date designated
482 by the plan. However, for the first term beginning on or after
483 July 1, 2009, each appointing officer shall appoint one member
484 of the board for a 2-year term and one member for a 3-year term.
485 A board vacancy shall be filled for the unexpired term by the
486 appointing officer. The Chief Financial Officer shall appoint a
487 technical advisory group to provide information and advice to
488 the board in connection with the board's duties under this
489 subsection. The executive director and senior managers of the
490 corporation shall be engaged by the board and serve at the
491 pleasure of the board. Any executive director appointed on or
492 after July 1, 2006, is subject to confirmation by the Senate.
493 The executive director is responsible for employing other staff
494 as the corporation may require, subject to review and
495 concurrence by the board.
496 b. The board shall create a Market Accountability Advisory
497 Committee to assist the corporation in developing awareness of
498 its rates and its customer and agent service levels in
499 relationship to the voluntary market insurers writing similar
500 coverage.
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501 (I) The members of the advisory committee consist of the
502 following 11 persons, one of whom must be elected chair by the
503 members of the committee: four representatives, one appointed by
504 the Florida Association of Insurance Agents, one by the Florida
505 Association of Insurance and Financial Advisors, one by the
506 Professional Insurance Agents of Florida, and one by the Latin
507 American Association of Insurance Agencies; three
508 representatives appointed by the insurers with the three highest
509 voluntary market share of residential property insurance
510 business in the state; one representative from the Office of
511 Insurance Regulation; one consumer appointed by the board who is
512 insured by the corporation at the time of appointment to the
513 committee; one representative appointed by the Florida
514 Association of Realtors; and one representative appointed by the
515 Florida Bankers Association. All members shall be appointed to
516 3-year terms and may serve for consecutive terms.
517 (II) The committee shall report to the corporation at each
518 board meeting on insurance market issues which may include rates
519 and rate competition with the voluntary market; service,
520 including policy issuance, claims processing, and general
521 responsiveness to policyholders, applicants, and agents; and
522 matters relating to depopulation.
523 5. Must provide a procedure for determining the
524 eligibility of a risk for coverage, as follows:
525 a. Subject to s. 627.3517, with respect to personal lines
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526 residential risks, if the risk is offered coverage from an
527 authorized insurer at the insurer's approved rate under a
528 standard policy including wind coverage or, if consistent with
529 the insurer's underwriting rules as filed with the office, a
530 basic policy including wind coverage, for a new application to
531 the corporation for coverage, the risk is not eligible for any
532 policy issued by the corporation unless the premium for coverage
533 from the authorized insurer is more than 20 15 percent greater
534 than the premium for comparable coverage from the corporation.
535 Whenever an offer of coverage for a personal lines residential
536 risk is received for a policyholder of the corporation at
537 renewal from an authorized insurer, if the offer is equal to or
538 less than the corporation's renewal premium for comparable
539 coverage, the risk is not eligible for coverage with the
540 corporation. If the risk is not able to obtain such offer, the
541 risk is eligible for a standard policy including wind coverage
542 or a basic policy including wind coverage issued by the
543 corporation; however, if the risk could not be insured under a
544 standard policy including wind coverage regardless of market
545 conditions, the risk is eligible for a basic policy including
546 wind coverage unless rejected under subparagraph 8. However, a
547 policyholder removed from the corporation through an assumption
548 agreement remains eligible for coverage from the corporation
549 until the end of the assumption period. The corporation shall
550 determine the type of policy to be provided on the basis of
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551 objective standards specified in the underwriting manual and
552 based on generally accepted underwriting practices.
553 (I) If the risk accepts an offer of coverage through the
554 market assistance plan or through a mechanism established by the
555 corporation other than a plan established by s. 627.3518, before
556 a policy is issued to the risk by the corporation or during the
557 first 30 days of coverage by the corporation, and the producing
558 agent who submitted the application to the plan or to the
559 corporation is not currently appointed by the insurer, the
560 insurer shall:
561 (A) Pay to the producing agent of record of the policy for
562 the first year, an amount that is the greater of the insurer's
563 usual and customary commission for the type of policy written or
564 a fee equal to the usual and customary commission of the
565 corporation; or
566 (B) Offer to allow the producing agent of record of the
567 policy to continue servicing the policy for at least 1 year and
568 offer to pay the agent the greater of the insurer's or the
569 corporation's usual and customary commission for the type of
570 policy written.
571
572 If the producing agent is unwilling or unable to accept
573 appointment, the new insurer shall pay the agent in accordance
574 with sub-sub-sub-subparagraph (A).
575 (II) If the corporation enters into a contractual
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576 agreement for a take-out plan, the producing agent of record of
577 the corporation policy is entitled to retain any unearned
578 commission on the policy, and the insurer shall:
579 (A) Pay to the producing agent of record, for the first
580 year, an amount that is the greater of the insurer's usual and
581 customary commission for the type of policy written or a fee
582 equal to the usual and customary commission of the corporation;
583 or
584 (B) Offer to allow the producing agent of record to
585 continue servicing the policy for at least 1 year and offer to
586 pay the agent the greater of the insurer's or the corporation's
587 usual and customary commission for the type of policy written.
588
589 If the producing agent is unwilling or unable to accept
590 appointment, the new insurer shall pay the agent in accordance
591 with sub-sub-sub-subparagraph (A).
592 b. With respect to commercial lines residential risks, for
593 a new application to the corporation for coverage, if the risk
594 is offered coverage under a policy including wind coverage from
595 an authorized insurer at its approved rate, the risk is not
596 eligible for a policy issued by the corporation unless the
597 premium for coverage from the authorized insurer is more than 15
598 percent greater than the premium for comparable coverage from
599 the corporation. Whenever an offer of coverage for a commercial
600 lines residential risk is received for a policyholder of the
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601 corporation at renewal from an authorized insurer, if the offer
602 is equal to or less than the corporation's renewal premium for
603 comparable coverage, the risk is not eligible for coverage with
604 the corporation. If the risk is not able to obtain any such
605 offer, the risk is eligible for a policy including wind coverage
606 issued by the corporation. However, a policyholder removed from
607 the corporation through an assumption agreement remains eligible
608 for coverage from the corporation until the end of the
609 assumption period.
610 (I) If the risk accepts an offer of coverage through the
611 market assistance plan or through a mechanism established by the
612 corporation other than a plan established by s. 627.3518, before
613 a policy is issued to the risk by the corporation or during the
614 first 30 days of coverage by the corporation, and the producing
615 agent who submitted the application to the plan or the
616 corporation is not currently appointed by the insurer, the
617 insurer shall:
618 (A) Pay to the producing agent of record of the policy,
619 for the first year, an amount that is the greater of the
620 insurer's usual and customary commission for the type of policy
621 written or a fee equal to the usual and customary commission of
622 the corporation; or
623 (B) Offer to allow the producing agent of record of the
624 policy to continue servicing the policy for at least 1 year and
625 offer to pay the agent the greater of the insurer's or the
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626 corporation's usual and customary commission for the type of
627 policy written.
628
629 If the producing agent is unwilling or unable to accept
630 appointment, the new insurer shall pay the agent in accordance
631 with sub-sub-sub-subparagraph (A).
632 (II) If the corporation enters into a contractual
633 agreement for a take-out plan, the producing agent of record of
634 the corporation policy is entitled to retain any unearned
635 commission on the policy, and the insurer shall:
636 (A) Pay to the producing agent of record, for the first
637 year, an amount that is the greater of the insurer's usual and
638 customary commission for the type of policy written or a fee
639 equal to the usual and customary commission of the corporation;
640 or
641 (B) Offer to allow the producing agent of record to
642 continue servicing the policy for at least 1 year and offer to
643 pay the agent the greater of the insurer's or the corporation's
644 usual and customary commission for the type of policy written.
645
646 If the producing agent is unwilling or unable to accept
647 appointment, the new insurer shall pay the agent in accordance
648 with sub-sub-sub-subparagraph (A).
649 c. For purposes of determining comparable coverage under
650 sub-subparagraphs a. and b., the comparison must be based on
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651 those forms and coverages that are reasonably comparable. The
652 corporation may rely on a determination of comparable coverage
653 and premium made by the producing agent who submits the
654 application to the corporation, made in the agent's capacity as
655 the corporation's agent. A comparison may be made solely of the
656 premium with respect to the main building or structure only on
657 the following basis: the same coverage A or other building
658 limits; the same percentage hurricane deductible that applies on
659 an annual basis or that applies to each hurricane for commercial
660 residential property; the same percentage of ordinance and law
661 coverage, if the same limit is offered by both the corporation
662 and the authorized insurer; the same mitigation credits, to the
663 extent the same types of credits are offered both by the
664 corporation and the authorized insurer; the same method for loss
665 payment, such as replacement cost or actual cash value, if the
666 same method is offered both by the corporation and the
667 authorized insurer in accordance with underwriting rules; and
668 any other form or coverage that is reasonably comparable as
669 determined by the board. If an application is submitted to the
670 corporation for wind-only coverage in the coastal account, the
671 premium for the corporation's wind-only policy plus the premium
672 for the ex-wind policy that is offered by an authorized insurer
673 to the applicant must be compared to the premium for multiperil
674 coverage offered by an authorized insurer, subject to the
675 standards for comparison specified in this subparagraph. If the
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676 corporation or the applicant requests from the authorized
677 insurer a breakdown of the premium of the offer by types of
678 coverage so that a comparison may be made by the corporation or
679 its agent and the authorized insurer refuses or is unable to
680 provide such information, the corporation may treat the offer as
681 not being an offer of coverage from an authorized insurer at the
682 insurer's approved rate.
683 6. Must include rules for classifications of risks and
684 rates.
685 7. Must provide that if premium and investment income for
686 an account attributable to a particular calendar year are in
687 excess of projected losses and expenses for the account
688 attributable to that year, such excess shall be held in surplus
689 in the account. Such surplus must be available to defray
690 deficits in that account as to future years and used for that
691 purpose before assessing assessable insurers and assessable
692 insureds as to any calendar year.
693 8. Must provide objective criteria and procedures to be
694 uniformly applied to all applicants in determining whether an
695 individual risk is so hazardous as to be uninsurable. In making
696 this determination and in establishing the criteria and
697 procedures, the following must be considered:
698 a. Whether the likelihood of a loss for the individual
699 risk is substantially higher than for other risks of the same
700 class; and
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701 b. Whether the uncertainty associated with the individual
702 risk is such that an appropriate premium cannot be determined.
703
704 The acceptance or rejection of a risk by the corporation shall
705 be construed as the private placement of insurance, and the
706 provisions of chapter 120 do not apply.
707 9. Must provide that the corporation make its best efforts
708 to procure catastrophe reinsurance at reasonable rates, to cover
709 its projected 100-year probable maximum loss as determined by
710 the board of governors. If catastrophe reinsurance is not
711 available at reasonable rates, the corporation need not purchase
712 it, but the corporation shall include the costs of reinsurance
713 to cover its projected 100-year probable maximum loss in its
714 rate calculations even if it does not purchase catastrophe
715 reinsurance.
716 10. The policies issued by the corporation must provide
717 that if the corporation or the market assistance plan obtains an
718 offer from an authorized insurer to cover the risk at its
719 approved rates, the risk is no longer eligible for renewal
720 through the corporation, except as otherwise provided in this
721 subsection.
722 11. Corporation policies and applications must include a
723 notice that the corporation policy could, under this section, be
724 replaced with a policy issued by an authorized insurer which
725 does not provide coverage identical to the coverage provided by
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726 the corporation. The notice must also specify that acceptance of
727 corporation coverage creates a conclusive presumption that the
728 applicant or policyholder is aware of this potential.
729 12. May establish, subject to approval by the office,
730 different eligibility requirements and operational procedures
731 for any line or type of coverage for any specified county or
732 area if the board determines that such changes are justified due
733 to the voluntary market being sufficiently stable and
734 competitive in such area or for such line or type of coverage
735 and that consumers who, in good faith, are unable to obtain
736 insurance through the voluntary market through ordinary methods
737 continue to have access to coverage from the corporation. If
738 coverage is sought in connection with a real property transfer,
739 the requirements and procedures may not provide an effective
740 date of coverage later than the date of the closing of the
741 transfer as established by the transferor, the transferee, and,
742 if applicable, the lender.
743 13. Must provide that, with respect to the coastal
744 account, any assessable insurer with a surplus as to
745 policyholders of $25 million or less writing 25 percent or more
746 of its total countrywide property insurance premiums in this
747 state may petition the office, within the first 90 days of each
748 calendar year, to qualify as a limited apportionment company. A
749 regular assessment levied by the corporation on a limited
750 apportionment company for a deficit incurred by the corporation
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751 for the coastal account may be paid to the corporation on a
752 monthly basis as the assessments are collected by the limited
753 apportionment company from its insureds, but a limited
754 apportionment company must begin collecting the regular
755 assessments not later than 90 days after the regular assessments
756 are levied by the corporation, and the regular assessments must
757 be paid in full within 15 months after being levied by the
758 corporation. A limited apportionment company shall collect from
759 its policyholders any emergency assessment imposed under sub-
760 subparagraph (b)3.d. The plan must provide that, if the office
761 determines that any regular assessment will result in an
762 impairment of the surplus of a limited apportionment company,
763 the office may direct that all or part of such assessment be
764 deferred as provided in subparagraph (q)4. However, an emergency
765 assessment to be collected from policyholders under sub-
766 subparagraph (b)3.d. may not be limited or deferred.
767 14. Must provide that the corporation appoint as its
768 licensed agents only those agents who throughout such
769 appointments also hold an appointment as defined in s. 626.015
770 by an insurer who is authorized to write and is actually writing
771 or renewing personal lines residential property coverage,
772 commercial residential property coverage, or commercial
773 nonresidential property coverage within the state.
774 15. Must provide a premium payment plan option to its
775 policyholders which, at a minimum, allows for quarterly and
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776 semiannual payment of premiums. A monthly payment plan may, but
777 is not required to, be offered.
778 16. Must limit coverage on mobile homes or manufactured
779 homes built before 1994 to actual cash value of the dwelling
780 rather than replacement costs of the dwelling.
781 17. Must provide coverage for manufactured or mobile home
782 dwellings. Such coverage must also include the following
783 attached structures:
784 a. Screened enclosures that are aluminum framed or
785 screened enclosures that are not covered by the same or
786 substantially the same materials as those of the primary
787 dwelling;
788 b. Carports that are aluminum or carports that are not
789 covered by the same or substantially the same materials as those
790 of the primary dwelling; and
791 c. Patios that have a roof covering that is constructed of
792 materials that are not the same or substantially the same
793 materials as those of the primary dwelling.
794
795 The corporation shall make available a policy for mobile homes
796 or manufactured homes for a minimum insured value of at least
797 $3,000.
798 18. May provide such limits of coverage as the board
799 determines, consistent with the requirements of this subsection.
800 19. May require commercial property to meet specified
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801 hurricane mitigation construction features as a condition of
802 eligibility for coverage.
803 20. Must provide that new or renewal policies issued by
804 the corporation on or after January 1, 2012, which cover
805 sinkhole loss do not include coverage for any loss to
806 appurtenant structures, driveways, sidewalks, decks, or patios
807 that are directly or indirectly caused by sinkhole activity. The
808 corporation shall exclude such coverage using a notice of
809 coverage change, which may be included with the policy renewal,
810 and not by issuance of a notice of nonrenewal of the excluded
811 coverage upon renewal of the current policy.
812 21. As of January 1, 2012, must require that the agent
813 obtain from an applicant for coverage from the corporation an
814 acknowledgment signed by the applicant, which includes, at a
815 minimum, the following statement:
816
817 ACKNOWLEDGMENT OF POTENTIAL SURCHARGE
818 AND ASSESSMENT LIABILITY:
819
820 1. AS A POLICYHOLDER OF CITIZENS PROPERTY INSURANCE
821 CORPORATION, I UNDERSTAND THAT IF THE CORPORATION SUSTAINS A
822 DEFICIT AS A RESULT OF HURRICANE LOSSES OR FOR ANY OTHER REASON,
823 MY POLICY COULD BE SUBJECT TO SURCHARGES, WHICH WILL BE DUE AND
824 PAYABLE UPON RENEWAL, CANCELLATION, OR TERMINATION OF THE
825 POLICY, AND THAT THE SURCHARGES COULD BE AS HIGH AS 45 PERCENT
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826 OF MY PREMIUM, OR A DIFFERENT AMOUNT AS IMPOSED BY THE FLORIDA
827 LEGISLATURE.
828 2. I UNDERSTAND THAT I CAN AVOID THE CITIZENS POLICYHOLDER
829 SURCHARGE, WHICH COULD BE AS HIGH AS 45 PERCENT OF MY PREMIUM,
830 BY OBTAINING COVERAGE FROM A PRIVATE MARKET INSURER AND THAT TO
831 BE ELIGIBLE FOR COVERAGE BY CITIZENS, I MUST FIRST TRY TO OBTAIN
832 PRIVATE MARKET COVERAGE BEFORE APPLYING FOR OR RENEWING COVERAGE
833 WITH CITIZENS. I UNDERSTAND THAT PRIVATE MARKET INSURANCE RATES
834 ARE REGULATED AND APPROVED BY THE STATE.
835 3. I UNDERSTAND THAT I MAY BE SUBJECT TO EMERGENCY
836 ASSESSMENTS TO THE SAME EXTENT AS POLICYHOLDERS OF OTHER
837 INSURANCE COMPANIES, OR A DIFFERENT AMOUNT AS IMPOSED BY THE
838 FLORIDA LEGISLATURE.
839 4. I ALSO UNDERSTAND THAT CITIZENS PROPERTY INSURANCE
840 CORPORATION IS NOT SUPPORTED BY THE FULL FAITH AND CREDIT OF THE
841 STATE OF FLORIDA.
842
843 a. The corporation shall maintain, in electronic format or
844 otherwise, a copy of the applicant's signed acknowledgment and
845 provide a copy of the statement to the policyholder as part of
846 the first renewal after the effective date of this subparagraph.
847 b. The signed acknowledgment form creates a conclusive
848 presumption that the policyholder understood and accepted his or
849 her potential surcharge and assessment liability as a
850 policyholder of the corporation.
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851 (n)1. Rates for coverage provided by the corporation must
852 be actuarially sound and subject to s. 627.062, except as
853 otherwise provided in this paragraph. The corporation shall file
854 its recommended rates with the office at least annually. The
855 corporation shall provide any additional information regarding
856 the rates which the office requires. The office shall consider
857 the recommendations of the board and issue a final order
858 establishing the rates for the corporation within 45 days after
859 the recommended rates are filed. The corporation may not pursue
860 an administrative challenge or judicial review of the final
861 order of the office.
862 2. In addition to the rates otherwise determined pursuant
863 to this paragraph, the corporation shall impose and collect an
864 amount equal to the premium tax provided in s. 624.509 to
865 augment the financial resources of the corporation.
866 3. After the public hurricane loss-projection model under
867 s. 627.06281 has been found to be accurate and reliable by the
868 Florida Commission on Hurricane Loss Projection Methodology, the
869 model shall be considered when establishing the windstorm
870 portion of the corporation's rates. The corporation may use the
871 public model results in combination with the results of private
872 models to calculate rates for the windstorm portion of the
873 corporation's rates. This subparagraph does not require or allow
874 the corporation to adopt rates lower than the rates otherwise
875 required or allowed by this paragraph.
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876 4. The rate filings for the corporation which were
877 approved by the office and took effect January 1, 2007, are
878 rescinded, except for those rates that were lowered. As soon as
879 possible, the corporation shall begin using the lower rates that
880 were in effect on December 31, 2006, and provide refunds to
881 policyholders who paid higher rates as a result of that rate
882 filing. The rates in effect on December 31, 2006, remain in
883 effect for the 2007 and 2008 calendar years except for any rate
884 change that results in a lower rate. The next rate change that
885 may increase rates shall take effect pursuant to a new rate
886 filing recommended by the corporation and established by the
887 office, subject to this paragraph.
888 4.5. Beginning on July 15, 2009, and annually thereafter,
889 The corporation must make a recommended actuarially sound rate
890 filing for each personal and commercial line of business it
891 writes, to be effective no earlier than January 1, 2010.
892 5.6. Beginning on or after January 1, 2010, and
893 Notwithstanding the board's recommended rates and the office's
894 final order regarding the corporation's filed rates under
895 subparagraph 1., the corporation shall annually implement a rate
896 increase which, except for sinkhole coverage, does not exceed
897 the following 10 percent for any single policy issued by the
898 corporation, excluding coverage changes and surcharges:
899 a. Eleven percent for 2022.
900 b. Twelve percent for 2023.
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901 c. Thirteen percent for 2024.
902 d. Fourteen percent for 2025.
903 e. Fifteen percent for 2026 and all subsequent years.
904 6. At no time may the corporation file for approval by the
905 office for a rate reduction.
906 7. The corporation may also implement an increase to
907 reflect the effect on the corporation of the cash buildup factor
908 pursuant to s. 215.555(5)(b).
909 8. The corporation's implementation of rates as prescribed
910 in subparagraph 5. 6. shall cease for any line of business
911 written by the corporation upon the corporation's implementation
912 of actuarially sound rates. Thereafter, the corporation shall
913 annually make a recommended actuarially sound rate filing for
914 each commercial and personal line of business the corporation
915 writes.
916 (jj) An employee of the corporation may not receive an
917 annual salary, whether base pay or base pay combined with any
918 bonus or incentive payments, in excess of 150 percent of the
919 annual salary paid to the head of the office, subject to the
920 following:
921 1. Anyone employed by the corporation as of June 30, 2021,
922 whose salary exceeds the salary limits in this paragraph may
923 retain his or her current salary but may not receive a raise.
924 2. Anyone employed by the corporation as of June 30, 2021,
925 whose salary does not exceed the salary limits in this paragraph
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926 may receive a raise such that his or her salary does not exceed
927 the salary limits in this paragraph.
928 3. Anyone hired by the corporation on or after July 1,
929 2021, is subject to the salary limits in this paragraph.
930 Section 9. Subsection (5) of section 627.3518, Florida
931 Statutes, is amended to read:
932 627.3518 Citizens Property Insurance Corporation
933 policyholder eligibility clearinghouse program.—The purpose of
934 this section is to provide a framework for the corporation to
935 implement a clearinghouse program by January 1, 2014.
936 (5) Notwithstanding s. 627.3517, any applicant for new
937 coverage from the corporation is not eligible for coverage from
938 the corporation if provided an offer of coverage from an
939 authorized insurer through the program at a premium that is at
940 or below the eligibility threshold established in s.
941 627.351(6)(c)5.a. Whenever an offer of coverage for a personal
942 lines risk is received for a policyholder of the corporation at
943 renewal from an authorized insurer through the program, if the
944 offer is equal to or less than the corporation's renewal premium
945 for comparable coverage, the risk is not eligible for coverage
946 with the corporation. In the event an offer of coverage for a
947 new applicant is received from an authorized insurer through the
948 program, and the premium offered exceeds the eligibility
949 threshold contained in s. 627.351(6)(c)5.a., the applicant or
950 insured may elect to accept such coverage, or may elect to
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951 accept or continue coverage with the corporation. In the event
952 an offer of coverage for a personal lines risk is received from
953 an authorized insurer at renewal through the program, and the
954 premium offered is more than the corporation's renewal premium
955 for comparable coverage, the insured may elect to accept such
956 coverage, or may elect to accept or continue coverage with the
957 corporation. Section 627.351(6)(c)5.a.(I) does not apply to an
958 offer of coverage from an authorized insurer obtained through
959 the program. An applicant for coverage from the corporation who
960 was declared ineligible for coverage at renewal by the
961 corporation in the previous 36 months due to an offer of
962 coverage pursuant to this subsection shall be considered a
963 renewal under this section if the corporation determines that
964 the authorized insurer making the offer of coverage pursuant to
965 this subsection continues to insure the applicant and increased
966 the rate on the policy in excess of the increase allowed for the
967 corporation under s. 627.351(6)(n)5. s. 627.351(6)(n)6.
968 Section 10. Section 627.70132, Florida Statutes, is
969 amended to read:
970 627.70132 Notice of property insurance windstorm or
971 hurricane claim.—A claim, supplemental claim, or reopened claim
972 under an insurance policy that provides property insurance, as
973 defined in s. 624.604, including a property insurance policy
974 issued by an eligible surplus lines insurer, for loss or damage
975 caused by any the peril of windstorm or hurricane is barred
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976 unless notice of the claim, supplemental claim, or reopened
977 claim was given to the insurer in accordance with the terms of
978 the policy within 2 3 years after the date of loss hurricane
979 first made landfall or the windstorm caused the covered damage.
980 For claims resulting from hurricanes, tornadoes, windstorms,
981 severe rain, or other weather-related events that are tracked by
982 weather services and media, the date of loss is the date that
983 the hurricane made landfall, or the tornado, windstorm, severe
984 rain, or other weather-related event is verified by the National
985 Oceanic and Atmospheric Administration or another disinterested
986 verifiable third party to have occurred, in the location of the
987 property that is the subject of the claim. For purposes of this
988 section, the term "supplemental claim" or "reopened claim" means
989 any additional claim for recovery from the insurer for losses
990 from the same peril hurricane or windstorm which the insurer has
991 previously adjusted pursuant to the initial claim. This section
992 does not affect any applicable limitation on civil actions
993 provided in s. 95.11 for claims, supplemental claims, or
994 reopened claims timely filed under this section.
995 Section 11. Paragraph (e) of subsection (9) of section
996 627.7015, Florida Statutes, is amended to read:
997 627.7015 Alternative procedure for resolution of disputed
998 property insurance claims.—
999 (9) For purposes of this section, the term "claim" refers
1000 to any dispute between an insurer and a policyholder relating to
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1001 a material issue of fact other than a dispute:
1002 (e) With respect to a windstorm or hurricane loss that
1003 does not comply with s. 627.70132.
1004 Section 12. Section 627.70152, Florida Statutes, is
1005 created to read:
1006 627.70152 Suits arising under a property insurance
1007 policy.—
1008 (1) APPLICATION.—This section applies to all residential
1009 or commercial property suits not brought by an assignee.
1010 (2) DEFINITIONS.—As used in this section, the term:
1011 (a) "Claimant" means an insured who is filing suit under a
1012 residential or commercial property insurance policy.
1013 (b) "Demand" means the specific amount alleged to be owed
1014 by the insurer to the claimant under the residential or
1015 commercial property insurance policy.
1016 (c) "Notice" means claimant presuit notice.
1017 (3) NOTICE.—
1018 (a) As a condition precedent to filing a suit under a
1019 property insurance policy, a claimant or the claimant's attorney
1020 must provide the insurer with a written notice of intent to
1021 initiate litigation before filing suit under the policy. Such
1022 notice must be served by certified mail, return receipt
1023 requested, or electronic delivery at least 10 business days
1024 before filing suit, but may not be served before the insurer has
1025 made a determination of coverage under s. 627.70131. The notice
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1026 must specify all of the following:
1027 1. That the notice is being provided pursuant to this
1028 section.
1029 2. The alleged acts or omissions of the insurer giving
1030 rise to the suit.
1031 3. The damages in dispute.
1032 4. The demand.
1033 5. The amount of reasonable and necessary attorney fees
1034 and costs incurred by the claimant, to be calculated by
1035 multiplying the number of hours actually worked on the claim as
1036 of the date of the notice by the claimant's attorney by a
1037 reasonable hourly rate.
1038 6. If provided by an attorney or other representative,
1039 that a copy of the notice was provided to the claimant.
1040
1041 Documentation to support the information provided in this
1042 paragraph may be provided along with the notice to the insurer.
1043 (b) A notice of intent to initiate litigation must be
1044 served within the time limits provided in s. 95.11. However, the
1045 notice is not required if the suit is a counterclaim. Service of
1046 a notice tolls the time limits provided in s. 95.11 for 10 days
1047 if such time limits will expire before the end of the 10-day
1048 notice period.
1049 (c) An insurer must respond in writing to the notice
1050 within 10 business days after receiving the notice specified in
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1051 paragraph (a) by making a settlement offer or requiring the
1052 claimant to participate in appraisal or another method of
1053 alternative dispute resolution under the policy. The time limits
1054 provided in s. 95.11 are tolled as long as appraisal or other
1055 alternative dispute resolution is ongoing. An insurer must have
1056 a procedure for the prompt investigation, review, and evaluation
1057 of the dispute stated in the notice and must investigate each
1058 claim contained in the notice in accordance with the Florida
1059 Insurance Code.
1060 (d) A court must dismiss without prejudice any claimant's
1061 suit relating to a claim for which a notice of intent to
1062 initiate litigation is given as required by this subsection if
1063 such suit is commenced before the expiration of the 10-day
1064 notice period.
1065 (4) ADMISSIBILITY OF NOTICE AND RESPONSE.—The notice
1066 provided pursuant to subsection (3) and, if applicable, the
1067 documentation to support the information provided pursuant to
1068 paragraph (3)(a):
1069 (a) Are admissible as evidence in a civil suit or an
1070 alternative dispute resolution proceeding relating to the claim
1071 for which the notice is given.
1072 (b) Do not limit the evidence of attorney fees or costs,
1073 damages, or loss which may be offered at trial.
1074 (c) Do not relieve any obligation that an insured or
1075 assignee has to give notice under any other provision of law.
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1076 (5) ATTORNEY FEES.—If a court dismisses a claimant's suit
1077 pursuant to paragraph (3)(d), the court may not award to the
1078 claimant any incurred attorney fees for services rendered before
1079 the dismissal of the suit.
1080 Section 13. This act shall take effect July 1, 2021.
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CS/HB 365
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 365 Motor Vehicle Rentals
SPONSOR(S): Ways & Means Committee, Caruso
TIED BILLS: IDEN./SIM. BILLS: CS/SB 566
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Tourism, Infrastructure & Energy Subcommittee 13 Y, 3 N Fortenberry Keating
2) Ways & Means Committee 14 Y, 1 N, As CS Berg Aldridge
3) Commerce Committee Fortenberry Hamon
SUMMARY ANALYSIS
In recent years, the private market, through the Internet and smart phone technology, has allowed the
development of new forms of direct person-to-person economic arrangements. Companies have emerged to
facilitate the sharing of motor vehicles such that a private passenger vehicle is given over to another individual to
operate for a period. This is known as “peer-to-peer car-sharing.” Unlike transportation network companies,
another person takes over possession and control of the motor vehicle from the owner, rather than simply
obtaining a ride. Car-sharing services, where one can rent a car from a business on an hourly basis, are similar
to, but distinct from traditional rental car companies. Unlike transportation network companies and car-sharing
services, peer-to-peer car-sharing is not regulated.
The bill establishes statutory requirements for peer-to-peer car-sharing, including surcharge and tax payments,
and liabilities and insurance obligations among participants. The bill:
Requires peer-to-peer car-sharing programs to collect and remit sales tax on the lease or rental of
motor vehicles on their platform.
Requires peer-to-peer car-sharing programs to collect and remit a $1 surcharge on the lease or rental
of a motor vehicle.
Defines terms, including “peer-to-peer car sharing,” which is the authorized use of a motor vehicle by
an individual other than the vehicle's owner through a peer-to-peer car-sharing program. Further, it is
not rental, for-hire, or joint use of motor vehicles, such as ridesharing or carpooling.
Establishes insurance requirements and coordinated coverage for each party involved in car sharing.
Allows motor vehicle insurers insuring the shared vehicle owner to exclude coverage for use of the
vehicle in car-sharing.
Provides that the peer-to-peer car-sharing program and vehicle owner are not vicariously liable for the
actions and damages of the driver during periods of peer-to-peer car-sharing use.
Specifies recordkeeping requirements and retention periods.
Includes requirements for consumer protection notifications.
Addresses the repair, use, and non-use of motor vehicles under a safety recall notice.
Provides that the bill does not limit the liability of the peer-to-peer car-sharing program for its acts or
omissions that cause bodily harm during peer-to-peer car-sharing nor the owner or driver to the peer-to-
peer car-sharing program for economic losses due to a breach of contract.
The Revenue Estimating Conference (REC) has not estimated the potential revenue impacts of the bill. Staff
estimates that the bill will have a recurring positive indeterminate impact on state and local government
revenues.
The bill has an effective date of January 1, 2022.
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:
Background
In recent years, the private market, using the Internet and smart phone technology, has allowed the
development of new forms of direct person-to-person economic arrangements. Transportation network
companies (TNCs) allow individuals to earn extra income by providing rides in their personal cars.
TNCs like Uber and Lyft facilitate the connection of individuals seeking rides with those offering rides
and manage payment transactions for the service. Because of safety, regulatory, and insurance
considerations, the Legislature passed CS/HB 2211 in 2017 to preempt local regulations and establish
statutory requirements for TNCs, including defining insurance liabilities and standards.
In a manner similar to TNCs, new companies have emerged to facilitate the sharing of motor vehicles
such that a private passenger vehicle is provided to another individual to operate for a period of time.
This is known as peer-to-peer car-sharing. Peer-to-peer car-sharing adds a third motor vehicle rental or
sharing model to the existing two models, which consist of motor vehicle rental companies and car-
sharing services. Motor vehicle rental companies and car-sharing services are regulated by statute;
however, peer-to-peer car-sharing is not regulated.
For-Hire Vehicles
With certain exceptions, offering for lease or rent any motor vehicle in the state qualifies the vehicle as
a “for-hire vehicle.” Specifically, s. 320.01(15)(a), F.S., provides:
“For-hire vehicle” means any motor vehicle, when used for transporting persons
or goods for compensation; let or rented to another for consideration; offered for
rent or hire as a means of transportation for compensation; advertised in a
newspaper or generally held out as being for rent or hire; used in connection with
a travel bureau; or offered or used to provide transportation for persons solicited
through personal contact or advertised on a “share-expense” basis. When goods
or passengers are transported for compensation in a motor vehicle outside a
municipal corporation of this state, or when goods are transported in a motor
vehicle not owned by the person owning the goods, such transportation is “for
hire.” The carriage of goods and other personal property in a motor vehicle by a
corporation or association for its stockholders, shareholders, and members,
cooperative or otherwise, is transportation “for hire.”
Renting a Motor Vehicle to Another
Current law establishes requirements for a person2 who wishes to rent a motor vehicle to another.3
These include inspecting the driver license of the person to whom the vehicle is to be rented and
comparing and verifying the signature thereon with the signature of such person written in his or her
presence before the vehicle can be rented. Further, a record must be kept of the registration number of
the motor vehicle rented, the name and address of the person renting, and the number, date, and place
of issue.4
1 Ch. 2017-12, Laws of Fla.
2 In this context, person means both natural persons and businesses.
3 S. 322.38, F.S.
4 Id.
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Car-Sharing Service
A “car-sharing service” 5 is a membership-based organization or business that requires the payment of
an application or membership fee and provides member access to motor vehicles6:
Only at locations that are not staffed by car-sharing service personnel employed solely for the
purpose of interacting with car-sharing service members;
Twenty-four hours per day, seven days per week;
Only through automated means, which may include, but are not limited to, smartphone
applications or electronic membership cards;
On hourly or shorter increments;
Without a separate fee for refueling the motor vehicle;
Without a separate fee for minimum financial responsibility liability insurance; and
Owned or controlled by the car-sharing service or its affiliates.
Peer-to-Peer Car-Sharing
In peer-to-peer car-sharing, owners interested in sharing their vehicles so that renters can drive them
can register as a host on a peer-to-peer car-sharing site.7 Sites require photos of the car and help the
owner determine a fee based on the location and type of vehicle. The host then specifies the vehicle’s
availability. The host may choose to have the vehicle picked up at his or her house, deliver the vehicle,
or have it picked up at another location, such as an airport. Hosts typically receive between 65 and 75
percent of fees collected on their behalf by the site from the guest. Payments are typically made to the
owner through direct deposit.8 The site provides the recordkeeping necessary to the transaction and in
compliance with requirements of law.
Guests also register with the peer-to-peer car-sharing site. The site will conduct a background check
and look at the guests’ driving records before approving them. The process involves choosing an
available vehicle, reserving a date and time, and providing credit card information, if it is not already on
file. At the end of the sharing period, the driver replaces any consumed fuel before returning the vehicle
to its pickup location.9
One peer-to-peer car-sharing website, Turo.com, reports that its company has users in over 5,500
cities across the world. It offers over 850 makes and models of vehicles and up to $750,000 in liability
insurance.10 According to Turo, the average host earns over $700 per month.11
Rental Car Taxes and Fees
The lease or rental of tangible personal property, including vehicles, is subject to state and local sales
and use tax.12 When a motor vehicle is leased or rented in Florida for a period of less than 12 months,
the entire amount of such rental is taxable at the rate of 6 percent13 of the gross proceeds derived from
the lease or rental.14 A “lease or rental” is defined as the leasing or renting or tangible personal property
and the possession or use of property by the lessee or renter for a consideration, without transfer of
5 The definition for a “car-sharing service” is in s. 212.0606, F.S.
6 One well-known example of a car-sharing service is Zipcar. See Zipcar, https://www.zipcar.com/ (last visited Mar. 11, 2021).
7 Turo, Getaround, and Avail are examples of car sharing websites/applications.
8 Russ Heaps, The Good, Bad and Ugly of Peer-to-Peer Car Sharing, Autotrader, (Feb. 2015), https://www.autotrader.com/car-shopping/good-bad-
and-ugly-peer-peer-car-sharing-234961 (last visited Mar. 11, 2021).
9 Id.
10 Turo, About Turo, https://turo.com/en-us/about (last visited Mar. 11, 2021). Turo’s insurance offering is a policy purchased from Liberty Surplus
Lines, a Liberty Mutual Group company, which is issued through Turo Insurance Agency, LLC.
11 Id.
12 S. 212.05(1), F.S.
13 Discretionary county sales surtax, if any, is also owed if the 6 percent Florida state sales tax applies. See s. 212.054, F.S.
14 S. 212.05(1)(c), F.S.
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title.15 The lessor is required to be registered as a dealer and to collect tax on the total amount of the
lease or rental charges from the lessee.16
Florida law imposes a surcharge17 of $2.00 per day, or any part of a day, upon the lease or rental of a
“motor vehicle licensed for hire”18 and designed to carry less than nine passengers, regardless of
whether such motor vehicle is licensed in Florida.19 The surcharge applies to the first 30 days of the
term of any lease or rental.20 Pursuant to Rule 12A-16.002(1)(b), F.A.C., “[e]ach person engaged in the
business of leasing or renting for hire passenger motor vehicles is required to collect the rental car
surcharge when the lease or rental payments are to be paid under the terms of the lease or rental
agreement.” The term “person” includes “any individual, firm, copartnership, joint adventure,
association, corporation, estate, trust, business trust, receiver, syndicate, or other group or combination
acting as a unit….”21 The term “business” is defined to mean “any activity engaged in by any person, or
caused to be engaged in by him or her, with the object or public gain, benefit, or advantage, either
direct or indirect.”22
Rule 12A-16.002(7), F.A.C., provides in pertinent part that “any person who has leased or rented a for
hire passenger motor vehicle under the terms of a lease or rental agreement…and cannot prove that
the rental car surcharge has been paid to the lessor or other person will be directly liable to the state for
any surcharge, interest, or penalty due on such transaction.” The lessee, therefore, is also liable for
payment of the rental car surcharge if the lessor fails to collect.
The $2.00 surcharge only applies to rentals by a member of a car-sharing service when the motor
vehicle is used for more than 24 hours.23 Members of a car-sharing service who use a motor vehicle for
less than 24 hours (pursuant to an agreement with the service) are required to pay a $1.00 surcharge,
per usage.24 The car-rental surcharge applicable to car-sharing services does not apply to the lease,
rental, or usage of a motor vehicle from a location-owned, operated, or leased by or for the benefit of
an airport or airport authority.25
Total rental car surcharge collections in FY 2019-20 were $176.0 million.26 After deduction for
administrative fees and the general revenue service charge, the rental car surcharge is distributed as
follows:
80 percent to the State Transportation Trust Fund;
15.75 percent to the Tourism Promotional Trust Fund; and
4.25 percent to the Florida International Trade and Promotion Trust Fund.
Documentation Required for Operation of a Vehicle
Section 320.0605(1), F.S., requires that at all times while a vehicle is being used or operated on the
roads of Florida, the operator of the vehicle must be in the possession of:
The registration certificate or an official copy;
A true copy of rental or lease documentation issued for a motor vehicle or issued for a
replacement vehicle in the same registration period;
15 S. 212.02(10)(g), F.S.
16 Rule 12A-1.007(13)(a)1, F.A.C.
17 The rental car surcharge is subject to sales and use tax. See s. 212.0606(1), F.S. and Rule 12A-16.002(6)(c), F.A.C.
18 The term “for hire passenger motor vehicle” means any automobile designed to carry fewer than nine passengers let or rented to another for
consideration; offered for lease or rent as a means of transportation for compensation; advertised; or generally held out as being for lease or rent. The
term “for hire passenger motor vehicle” does not include any motorcycle, moped, truck, truck trailer, travel trailer, camping trailer, recreational
vehicle with living facilities, or van conversion. See Rule 12A-16.002(2)(c), F.A.C.
19 S. 212.0606(1), F.S.
20
Id.
21 S. 212.02(12), F.S.
22 S. 212.02(2), F.S.
23 Rule 12A-16.002(3), F.A.C.
24 S. 212.0606(2), F.S.
25 S. 212.0606(2), F.S.
26 Table 8 of the Revenues to State Transportation Trust Fund Forecast, adopted by the Revenue Estimating Conference March 24, 2021, available at
http://edr.state.fl.us/Content/conferences/transportation/Transresults.pdf (last visited March 27, 2021).
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A temporary receipt printed upon self-initiated electronic renewal of a registration via the
Internet; or
A cab card issued for a vehicle registered under the International Registration Plan.27
The certificate or document of any vehicle, other than a fleet vehicle28 or a replacement vehicle
purchased within the last 30 days, must be shown upon demand by any authorized law enforcement
officer or Department of Highway Safety and Motor Vehicles (DHSMV) agent. A violation of this request
is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in ch. 318, F.S.29
Section 320.0605(2), F.S., specifies that for a vehicle rented from a motor vehicle rental company, the
rental or lease documentation must include:
Date of rental and time of exit from rental facility;
Rental station identification;
Rental agreement number;
Rental vehicle identification number;
Rental vehicle license plate number and state of registration;
Vehicle’s make, model, and color;
Vehicle’s mileage; and
Authorized renter’s name.
Motor Vehicle Insurance Requirements
Chapter 324, F.S., is the Financial Responsibility Law of 1955.30 Florida’s Financial Responsibility Law
requires proof of ability to pay monetary damages for bodily injury (BI) and property damage (PD)
liability arising out of a motor vehicle accident or serious traffic violation.31 The owner or operator of a
motor vehicle is not required to provide proof of BI coverage at the time of vehicle registration.
Motorcycle owners also are not required to provide proof of BI coverage at the time of registration.
Proof of such coverage is only required after an accident.32 At that time, a driver proves financial
responsibility by furnishing an active motor vehicle liability policy, a certificate showing a qualifying
security deposit with the DHSMV, or proof of qualifying self-insurance.33
The required minimum amounts of BI insurance coverages are $10,000, in the event of bodily injury to,
or death of, one person, and $20,000, in the event of bodily injury to, or death of, two or more
persons.34 The required minimum amount of PD insurance coverage is $10,000, in the event of
damage to property of others, or $30,000 combined for both BI and PD coverage.35
Financial responsibility requirements are common. All states have financial responsibility laws that
require persons involved in auto accidents (or serious traffic infractions) to furnish proof of BI and PD
liability insurance and the minimum coverage amounts vary for each state.
27 The International Registration Plan is a reciprocity agreement among the states of the United States, Washington, D.C., and the provinces of
Canada, which recognizes the registration of commercial vehicles registered in other jurisdictions. International Registration Plan, Inc.,
https://www.irponline.org/ (last visited Mar. 11, 2021).
28 A fleet vehicle registered under s. 320.0657, F.S., provides for the permanent registration of fleet license plates.
29 Ch. 318, F.S., relates to the disposition of traffic infractions.
30 S. 324.251, F.S.
31 Ch. 324, F.S.
32 Ss. 320.02 and 324.011, F.S.
33 Ss. 324.031, 324.061, 324.161, and 324.171, F.S. Businesses that choose to self-insure the financial responsibility requirements must deposit
$30,000 per vehicle, up to a maximum of $120,000, with DHSMV and maintain excess insurance with limits of $125,000/$250,000/$300,000.
Individuals that choose to self-insure must deposit $30,000 with DHSMV. Individuals and businesses can also obtain a certificate of self-insurance to
satisfy the financial responsibility requirements. Individuals must have an unencumbered net worth of $40,000 and businesses must have either an
unencumbered net worth of $40,000 for the first vehicle and $20,000 for each additional vehicle or a sufficient net worth determined by DHSMV by
rule. Currently, the applicable rule provides that $40,000 for the first vehicle and an amount less than $20,000 for each additional vehicle is sufficient
if the applicant carries excess insurance in the amounts of $25,000/$50,000/$100,000. The amount applicable to each additional vehicle is determined
annually under a “Manual of Financial Responsibility Rates” (Revised 05-89) adopted by rule by the Office of Insurance Regulation. Rule 15A-
3.011, F.A.C.
34 S. 324.021(7), F.S.
35 S. 324.022(1), F.S. These coverage amounts are commonly referred to in a summary manner, i.e., $10,000/$20,000/$10,000 or 10/20/10.
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Florida’s Motor Vehicle No-Fault Law (No-Fault Law)36 requires motorists to carry no-fault insurance
known as personal injury protection (PIP) coverage. The purpose of PIP coverage under the No-Fault
Law is to provide for medical, surgical, funeral, and disability insurance benefits without regard to who
is responsible for a motor vehicle accident. In return for assuring payment of these benefits, the No-
Fault Law provides limitations on the right to bring lawsuits arising from motor vehicle accidents. Florida
motorists are required to carry $10,000 of PIP coverage.37 However, motorcycles are excluded from
this requirement.
A driver’s license and vehicle registration are subject to suspension for failure to comply with the PD
and PIP coverage requirements.38 A suspended driver’s license and registration may be reinstated by
obtaining a liability policy and by paying a fee to DHSMV.39
Effect of the Bill
The bill creates a new section of the Florida Insurance Code40 providing requirements for “peer-to-peer
car-sharing,” also called “car-sharing” in the bill. Peer-to-peer car-sharing is the authorized use of a
shared vehicle (vehicle or car) through a peer-to-peer car-sharing program by an individual, the shared
vehicle driver (driver), who is not the shared vehicle owner (owner).
“Peer-to-peer car-sharing” does not include the renting of a motor vehicle through a rental company,
the use of a for-hire vehicle, or joint use of motor vehicles, such as ridesharing, carpooling, or a car-
sharing service. The bill defines the term "peer-to-peer car-sharing program" (program) as a business
platform that enables peer-to-peer car-sharing by connecting motor vehicle owners with drivers for
financial consideration. It does not include a rental car company, taxi cab association, the owner of a
for-hire vehicle, a car-sharing service, or a program that might otherwise be considered a peer-to-peer
car-sharing program, if it is not used to process payment for use of a shared vehicle.41
Sales Tax and Surcharge
The bill provides that peer-to-peer car-sharing programs are required to collect sales tax and a $1 per
day rental car surcharge from the customer and remit them to the state. The bill requires the peer-to-
peer car-sharing program to report surcharge collections and surcharge revenues as attributable to the
county corresponding to the car-sharing start time.
Peer-to-Peer Car-Sharing Insurance Requirements
The bill requires the program to ensure that, during each car-sharing period, the owner and the driver of
the vehicle and the peer-to-peer car-sharing program have the following minimum coverage for motor
vehicle insurance, during peer-to-peer car-sharing periods:
Property damage coverage of at least $10,000;
Bodily injury coverage of at least $10,000 for injury to one person and $20,000 for injury to two
or more persons;
Personal injury protection of $10,000; and
36 Ss. 627.730-627.7405, F.S.
37 S. 627.7275, F.S. Under Florida’s Financial Responsibility Law (Ch. 324, F.S.), motorists must also provide proof of ability to pay monetary
damages for Bodily Injury and Property Damage liability at the time of motor vehicle accidents or when serious traffic violations occur. The
Financial Responsibility Law requires $10,000, per person, and $20,000, per incident, of Bodily Injury coverage, and $10,000 of Property Damage
liability coverage.
38 S. 324.0221(2), F.S.
39 S. 324.0221(3), F.S.
40 The Florida Insurance Code is chapters 624-632, 634, 635, 636, 641, 642, 648, and 651, F.S. S. 624.01, F.S.
41 A “for-hire vehicle” means any motor vehicle, when used for transporting persons or goods for compensation; let or rented to another for
consideration; offered for rent or hire as a means of transportation for compensation; advertised in a newspaper or generally held out as being for rent
or hire; used in connection with a travel bureau; or offered or used to provide transportation for persons solicited through personal contact or
advertised on a “share-expense” basis. When goods or passengers are transported for compensation in a motor vehicle outside a municipal
corporation of this state, or when goods are transported in a motor vehicle not owned by the person owning the goods, such transportation is “for
hire.” The carriage of goods and other personal property in a motor vehicle by a corporation or association for its stockholders, shareholders, and
members, cooperative or otherwise, is transportation “for hire.” s. 320.01(15), F.S.
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Uninsured/underinsured motorist coverage, as required by s. 627.727, F.S. While
uninsured/underinsured motorist coverage is required to be offered to every purchaser of motor
vehicle insurance in this state, the purchaser may reject such coverage in writing. Therefore,
such insurance is elective.
The program must also ensure that the insurance policy either recognizes the use of the vehicle in
peer-to-peer car-sharing or does not exclude shared use. Compliant insurance coverage may be
maintained by the vehicle owner, driver, the program, or any combination thereof, which will be the
primary insurance coverage during periods the vehicle is shared. If a claim occurs during the car-
sharing period in another state with higher minimum financial responsibility limits requiring under ch.
324, F.S., the minimum insurance requirements under the peer-to-peer car-sharing program satisfy the
difference in minimum coverage amounts up to the applicable policy limits.
If the owner’s or driver’s insurance lapses or does not provide the required coverage, the program’s
coverage must provide coverage as if it were primary from day one, i.e., provide coverage from the first
dollar claimed. Further, the program’s coverage must not require that a claim be denied by another
insurer. The program is authorized to maintain multiple insurance policies to meet its obligations.42
Liabilities and Exclusions
If it is determined that the vehicle owner was in control43 of the vehicle at the time of a loss, the owner
must indemnify the program to the extent of the insurer’s obligation.
During shared periods, the program assumes the liability of the vehicle owner for bodily injury and
property damage to third parties, uninsured/underinsured motorists, and personal injury protection
coverages in the amount specified in the car-sharing agreement, which must meet statutory
minimums.44 This shifting of liability is void if the owner makes an intentional or fraudulent material
misrepresentation or omission to the program before the sharing period when the loss occurred or if the
owner acts in concert with a vehicle driver who fails to return the vehicle as provided in the peer-to-peer
car-sharing agreement.
If a dispute exists about who was in control of a vehicle at the time of a loss and the program does not
have, did not retain, or fails to provide specific required information, the program will have primary
liability for a claim.
If the owner’s insurer defends or indemnifies a claim related to a vehicle that it has excluded from
coverage and for which it is not liable under the bill, the owner’s insurer is entitled to contribution from
the program’s insurer under certain conditions.
Exemption from Vicarious Liability
The program and the shared vehicle owner are exempted from vicarious liability under any local or
state law that imposes liability based on vehicle ownership.45 This means that the actions and liabilities
of the driver cannot be imputed to be those of the program or the vehicle owner.
42 Under the bill, the program has an insurable interest in the shared vehicle. Also, it may meet its insurance obligations by purchasing insurance from
an admitted insurer, which means claims are backed by the Florida Insurance Guaranty Association, in the event the insurer becomes insolvent, or the
insurance may be purchased from an authorized surplus lines company, provided the company carries a minimum rating specified by the bill.
43 See Section III.C. Drafting Issues or Other Comments.
44 This requirement seems to conflict with the requirements explained above in Peer-to-Peer Car-Sharing Insurance Requirements, whereby the car-
sharing program provides coverage if the owner’s or driver’s policy lapses. See Section III. C. Drafting Issues or Other Comments.
45 The bill references the federal Graves Amendment, 49 U.S.C. 30106 (2005). The Graves Amendment provides that the owner of a motor vehicle
who engages in the business of renting or leasing vehicles and has not been negligent or committed a crime is not liable for the damages caused by a
renter/lessee during the rental or lease period merely based on being the owner of the rented or leased vehicle. The Graves Amendment defines owner
as a person who is—
(A) a record or beneficial owner, holder of title, lessor, or lessee of a motor vehicle;
(B) entitled to the use and possession of a motor vehicle subject to a security interest in another person; or
(C) a lessor, lessee, or a bailee of a motor vehicle, in the trade or business of renting or leasing motor vehicles, having the use or possession
thereof, under a lease, bailment, or otherwise.
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Motor Vehicle Insurance Policy Exclusions
The bill specifies that a motor vehicle insurer may exclude coverage and the duty to defend or
indemnify any claim under an owner’s policy, including, but not limited to, all types of motor vehicle
coverage. The bill provides that current insurance policies approved for use in Florida that exclude
coverage of vehicles offered for rent, sharing, or hire or for any business use are not invalidated or
limited.
Notification Regarding Liens
If the vehicle has a lien against it at the time it is registered for use within the program, the program
must notify the owner that using the vehicle for car-sharing may violate the terms of the contract with
the lienholder.
Required Recordkeeping
The program must collect and verify records regarding vehicle use, including the times used, fees paid
by the driver, and revenues received by the owner. These records must be retained for at least the
duration of the statute of limitations for personal injuries and be provided on request to the vehicle
owner, the owner’s insurer, or the vehicle driver’s insurer. The program must also keep the following
records:46
The name and address of the driver;
The driver license number of the driver and each other person, if any, who will operate the
vehicle; and
The place of issuance of the driver license.
Consumer Protections
The peer-to-peer car-sharing agreement must include the following disclosures to the owner and driver:
Any right of the program to seek indemnification from either the owner or driver for economic
losses due to a breach of contract;
A motor vehicle insurance policy issued to the owner for the vehicle or to the driver does not
provide a defense or indemnification for any claim asserted by the program;
The program’s insurance is only in effect during the sharing period;
If the driver uses the vehicle beyond the agreed termination time, the owner and driver may not
have insurance coverage;
The daily rate, fees, and, if applicable, any insurance or protection package costs that are
charged to the owner or the driver;
The vehicle owner's motor vehicle liability insurance may exclude coverage for a vehicle;
An emergency telephone number of the personnel capable of fielding calls for roadside
assistance and other customer service inquiries; and
Any conditions under which a vehicle driver must maintain a personal motor vehicle insurance
policy with certain coverage on a primary basis in order to book a vehicle.
The program may not enter into an agreement with a driver, unless the driver:
Holds a Florida driver license of the type required for the class of vehicle shared;
Holds a driver license issued by the driver’s state or country of the type required for the class of
vehicle and the driver is the minimum age to operate a vehicle in Florida; or
Is specifically authorized by DHSMV to drive vehicles of the class shared.
The program is solely responsible for program equipment installed in or on the vehicle for the purposes
of allowing use of the vehicle in car-sharing through the program. The program must indemnify the
46 See Section III.C. Drafting Issues or Other Comments.
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owner for any damage to or theft of such equipment during share periods that is not caused by the
owner; the program may seek indemnification from the driver for such damage.
Motor Vehicle Safety Recalls
The program must verify the recall and repair status of the vehicle when it is registered for use with the
program. The owner must be notified by the program that: vehicles under recall cannot be shared until
repaired; if the owner receives a recall notice while the vehicle is available for sharing, the vehicle must
be removed from sharing as soon as practicable; and, if the vehicle is in the possession of a driver, the
owner must notify the program as soon as practicable so that it can be repaired.47
Construction
The bill specifically provides that it does not limit the liability of the program for acts and omissions by
the program that cause bodily harm to a person as a result of peer-to-peer car-sharing. It also provides
that it does not limit the program’s right to contract for indemnification from owners or drivers for
economic losses due to a breach of contract.
B. SECTION DIRECTORY:
Section 1. Amends s. 212.05, F.S., relating to sales, storage, and use tax.
Section 2. Amends s. 212.0606, F.S., relating to rental car surcharge.
Section 3. Creates s. 627.7483, F.S., relating to peer-to-peer car sharing; insurance requirements.
Section 4. Provides an effective date of January 1, 2022.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
The Revenue Estimating Conference (REC) has not estimated the potential revenue impacts of the
bill. Staff estimates that the bill will have a recurring positive indeterminate impact on General
Revenue and state trust fund revenues.
2. Expenditures:
The bill will likely have no impact on state government expenditures.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
The REC has not estimated the potential revenue impacts of the bill. Staff estimates that the bill will
have a recurring positive indeterminate impact on local government revenues.
2. Expenditures:
The bill will likely have no impact on local government expenditures.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
47 Id.
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Peer-to-peer car-sharing programs will be required to remit the rental car surcharge and appropriate
sales taxes as well as comply with insurance regulations. Therefore, the bill may have both and positive
and negative impacts on certain entities within the private sector.
D. FISCAL COMMENTS:
According to the Department of Revenue, the rental car surcharge under s. 212.0606, F.S., and sales
and use taxes under s. 212.05, F.S., on rental revenue generated by participating in a “Peer-to-Peer”,
or other, ride-share model program, apply under current law and are currently required to be remitted to
the state.48 At present, the owner of the car is responsible for collecting and remitting the tax and
surcharge amounts.49 Compliance is relatively low.
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 revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The Department of Revenue notes that the bill will require rulemaking to update both rules and forms.
The bill does not provide specific authority for that rulemaking, but the statutory changes fall within
chapters the department has standing rulemaking authority to administer. The department has also
requested emergency rulemaking authority.50
C. DRAFTING ISSUES OR OTHER COMMENTS:
Insurance and Liability Issues
The bill defines a “shared vehicle owner” as the registered owner, or a natural person or entity
designated by the registered owner, of a motor vehicle made available for sharing to shared vehicle
drivers through a peer-to-peer car-sharing program. The bill uses the term “shared vehicle owner”
exclusively in the context of the role of the registered owner of the motor vehicle. It does not provide a
separate context for when an individual or entity designated by the owner would act on behalf of the
owner or limit the liability of the designated person or entity to only the liabilities that could arise from
their actions performed in the interest of the owner. Therefore, all responsibilities, obligations, and
liabilities that the bill places on the owner are shared by the designee, without limitation. This may
create a situation where a person is designated only to facilitate delivery or return of a vehicle and they
become liable for all of the owner’s insurance obligations with respect to the vehicle and the program.
48 Email from Debra Longman, Director of the Office of Legislative and Cabinet Services, Department of Revenue, RE: SB 1148 Questions (March
18, 2019), and subsequent email from same confirming that responses from that email are still accurate in the context of this bill (March 26, 2021).
49 Id.
50 Department of Revenue’s analysis of HB 365, dated February 15, 2021.
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The bill requires the peer-to-peer car-sharing program to ensure that the owner and driver of a vehicle
have uninsured/underinsured motorist coverage as required by law. The uninsured/underinsured
motorist coverage statute is elective. However, on lines 404-413, the bill shifts liability for specified
coverages from the owner to the program, including liability to uninsured/underinsured motorists. This
language implies that the program is required to provide uninsured/underinsured motorist coverage
meeting or exceeding statutory minimums. It is unclear if the intent of the bill is to require
uninsured/underinsured motorist coverage, despite its elective status, or to allow the program to accept
arrangements and be free from liability where the owner and or the driver have rejected
uninsured/underinsured motorist coverage.
General Drafting Issues
The definitions of “peer-to-peer car sharing” and related terms in lines 256-327 of the bill are
inconsistent in describing what is excluded from each definition. For example, the definitions of “peer-
to-peer car-sharing,” “peer-to-peer car-sharing program,” and “peer-to-peer car-sharing program
agreement,” all exclude application to rental cars from rental car companies and for-hire vehicles, but
ride-share vehicles are only excluded from the definitions of “peer-to-peer car-sharing” and “peer-to-
peer car-sharing program.” This lack of consistency is confusing. Unless there is a specific reason not
to exclude a type of vehicle sharing or driving arrangement from a particular definition, consideration
should be given to making all of the exclusions from each definition consistent throughout these lines of
the bill.
On lines 519-521, the bill requires designation of personnel capable of fielding calls for roadside
assistance and other customer service inquiries. It is not clear to whom the term “personnel” refers to
for this purpose or who will designate them (e.g. shared vehicle owner or program).
On lines 543-549, the bill specifies certain records that the program must keep. This occurs in a section
titled “Consumer Protections” rather than in an earlier section titled “Recordkeeping.” The bill requires
the retention of a non-exclusive list of specified records for a designated period. It is unclear if listing
additional recordkeeping requirements in another portion of the bill is subject to the same retention
period. It may avoid confusion to list all recordkeeping requirements in a single section of the bill.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On April 8, 2021, the Ways & Means Committee adopted a strike-all amendment that:
Reduces the daily rental car surcharge under s. 212.0606, F.S., from $2 to $1 for rentals
through peer-to-peer car sharing programs.
Requires that the peer-to-peer car-sharing program report surcharge collections and surcharge
revenues as attributable to the county corresponding to the car-sharing start time.
Revises the definition of “car-sharing termination time” to require that if a car is returned to a
location other than that originally agreed to, that the revised location must be incorporated into
the peer-to-peer car-sharing program agreement, and to remove language stating that
possession of the vehicle by the owner’s authorized designee constitutes a terminating event.
Revises the definition of “peer-to-peer car-sharing program” to exclude services limited to
hardware or software provided as a service when no payment is being made for use of the
vehicle.
Provides that Florida’s minimum insurance requirements for peer-to-peer car-sharing programs
satisfy the difference in coverage requirements in another state with higher minimum insurance
requirements.
Requires the insurer, insurers, or peer-to-peer car-sharing program that satisfies the minimum
insurance requirements to assuming primary liability for the claim under certain conditions.
Preserves an insurer’s authority to underwrite, cancel, or nonrenew an insurance policy under
current law.
Removes “fees” from the required disclosure in a peer-to-peer car-sharing agreement.
Moves the effective date of the bill to January 1, 2022.
Makes additional technical and conforming changes.
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1 A bill to be entitled
2 An act relating to motor vehicle rentals; amending s.
3 212.05, F.S.; specifying the applicable sales tax rate
4 on motor vehicle leases and rentals by motor vehicle
5 rental companies and peer-to-peer car-sharing
6 programs; requiring peer-to-peer car-sharing programs
7 to collect and remit the applicable sales tax;
8 amending s. 212.0606, F.S.; providing definitions;
9 specifying the applicable rental car surcharge on
10 motor vehicle leases and rentals by motor vehicle
11 rental companies; specifying applicability of the
12 surcharge; requiring motor vehicle rental companies to
13 collect and remit the surcharge; specifying the
14 applicable rental car surcharge on motor vehicle
15 leases and rentals by peer-to-peer car-sharing
16 programs; specifying applicability of the surcharge;
17 requiring car-sharing services to collect a certain
18 surcharge; requiring peer-to-peer car-sharing programs
19 to collect the surcharge; providing that the surcharge
20 for peer-to-peer car-sharing is attributable to the
21 county corresponding to the location of the motor
22 vehicle at the car-sharing start time; requiring a
23 dealer to report collected surcharge revenue
24 accordingly; providing an exception; providing
25 application of a surcharge imposed on a shared
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26 vehicle; creating s. 627.7483, F.S.; providing
27 definitions; specifying insurance requirements for
28 shared vehicle owners and shared vehicle drivers under
29 peer-to-peer car-sharing programs; providing that a
30 peer-to-peer car-sharing program has an insurable
31 interest in a shared vehicle during certain periods;
32 providing construction; authorizing peer-to-peer car-
33 sharing programs to own and maintain certain motor
34 vehicle insurance policies; requiring peer-to-peer
35 car-sharing programs to assume certain liability;
36 providing exceptions; requiring a shared vehicle
37 owner's insurer to indemnify the peer-to-peer car-
38 sharing program under certain circumstances; providing
39 an exemption from vicarious liability for peer-to-peer
40 car-sharing programs and shared vehicle owners;
41 authorizing motor vehicle insurers to exclude
42 coverages and a duty to defend or indemnify claims
43 under a shared vehicle owner's policy; providing
44 construction relating to exclusions; providing a right
45 of recovery to a shared vehicle owner's insurer for
46 certain claims; requiring peer-to-peer car-sharing
47 programs to provide certain information to shared
48 vehicle owners regarding liens; specifying
49 recordkeeping, record retention, and record-sharing
50 requirements for peer-to-peer car-sharing programs;
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51 specifying disclosure requirements for peer-to-peer
52 car-sharing program agreements; specifying driver
53 license verification and data retention requirements
54 for peer-to-peer car-sharing programs; providing that
55 peer-to-peer car-sharing programs have sole
56 responsibility for certain equipment in or on a shared
57 vehicle; providing for indemnification regarding such
58 equipment; specifying requirements for peer-to-peer
59 car-sharing programs relating to safety recalls on a
60 shared vehicle; providing construction; providing an
61 effective date.
62
63 Be It Enacted by the Legislature of the State of Florida:
64
65 Section 1. Paragraph (c) of subsection (1) of section
66 212.05, Florida Statutes, is amended to read:
67 212.05 Sales, storage, use tax.—It is hereby declared to
68 be the legislative intent that every person is exercising a
69 taxable privilege who engages in the business of selling
70 tangible personal property at retail in this state, including
71 the business of making mail order sales, or who rents or
72 furnishes any of the things or services taxable under this
73 chapter, or who stores for use or consumption in this state any
74 item or article of tangible personal property as defined herein
75 and who leases or rents such property within the state.
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76 (1) For the exercise of such privilege, a tax is levied on
77 each taxable transaction or incident, which tax is due and
78 payable as follows:
79 (c) At the rate of 6 percent of the gross proceeds derived
80 from the lease or rental of tangible personal property, as
81 defined herein; however, the following special provisions apply
82 to the lease or rental of motor vehicles and to peer-to-peer
83 car-sharing programs:
84 1. When a motor vehicle is leased or rented by a motor
85 vehicle rental company or a peer-to-peer car-sharing program, as
86 those terms are defined in s. 212.0606(1), for a period of less
87 than 12 months:
88 a. If the motor vehicle is rented in Florida, the entire
89 amount of such rental is taxable, even if the vehicle is dropped
90 off in another state.
91 b. If the motor vehicle is rented in another state and
92 dropped off in Florida, the rental is exempt from Florida tax.
93 c. If the motor vehicle is rented through a peer-to-peer
94 car-sharing program, the peer-to-peer car-sharing program shall
95 collect and remit the applicable tax due in connection with the
96 rental.
97 2. Except as provided in subparagraph 3., for the lease or
98 rental of a motor vehicle for a period of not less than 12
99 months, sales tax is due on the lease or rental payments if the
100 vehicle is registered in this state; provided, however, that no
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101 tax shall be due if the taxpayer documents use of the motor
102 vehicle outside this state and tax is being paid on the lease or
103 rental payments in another state.
104 3. The tax imposed by this chapter does not apply to the
105 lease or rental of a commercial motor vehicle as defined in s.
106 316.003(13)(a) to one lessee or rentee for a period of not less
107 than 12 months when tax was paid on the purchase price of such
108 vehicle by the lessor. To the extent tax was paid with respect
109 to the purchase of such vehicle in another state, territory of
110 the United States, or the District of Columbia, the Florida tax
111 payable shall be reduced in accordance with the provisions of s.
112 212.06(7). This subparagraph shall only be available when the
113 lease or rental of such property is an established business or
114 part of an established business or the same is incidental or
115 germane to such business.
116 Section 2. Section 212.0606, Florida Statutes, is amended
117 to read:
118 212.0606 Rental car surcharge.—
119 (1) As used in this section, the term:
120 (a) "Car-sharing service" means a membership-based
121 organization or business, or division thereof, which requires
122 the payment of an application fee or a membership fee and
123 provides member access to motor vehicles:
124 1. Only at locations that are not staffed by car-sharing
125 service personnel employed solely for the purpose of interacting
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126 with car-sharing service members;
127 2. Twenty-four hours per day, 7 days per week;
128 3. Only through automated means, including, but not
129 limited to, a smartphone application or an electronic membership
130 card;
131 4. On an hourly basis or for a shorter increment of time;
132 5. Without a separate fee for refueling the motor vehicle;
133 6. Without a separate fee for minimum financial
134 responsibility liability insurance; and
135 7. Owned or controlled by the car-sharing service or its
136 affiliates.
137 (b) "Motor vehicle rental company" means an entity that is
138 in the business of providing, for financial consideration, motor
139 vehicles to the public under a rental agreement.
140 (c) "Peer-to-peer car-sharing program" has the same
141 meaning as in s. 627.7483(1).
142 (2) Except as provided in subsections (3) and (4)
143 subsection (2), a surcharge of $2 per day or any part of a day
144 is imposed upon the lease or rental by a motor vehicle rental
145 company of a motor vehicle that is licensed for hire and
146 designed to carry fewer than nine passengers, regardless of
147 whether the motor vehicle is licensed in this state, for
148 financial consideration and without transfer of the title of the
149 motor vehicle. The surcharge is imposed regardless of whether
150 the lease or rental occurs in person or through digital means.
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151 The surcharge applies to only the first 30 days of the term of a
152 lease or rental and must be collected and remitted by the motor
153 vehicle rental company. The surcharge is subject to all
154 applicable taxes imposed by this chapter.
155 (3) A surcharge of $1 per day or any part of a day is
156 imposed upon each peer-to-peer car-sharing program agreement
157 involving a shared vehicle that is registered in this state and
158 designed to carry fewer than nine passengers for financial
159 consideration and without transfer of the title of the shared
160 vehicle. If the duration of the car-sharing period for a peer
161 to-peer car-sharing program agreement subject to the surcharge
162 established pursuant to this subsection is less than 24 hours,
163 the applicable surcharge will be $1 per usage. The surcharge
164 applies to the first 30 days only of a car-sharing period for
165 any peer-to-peer car-sharing program agreement to which the
166 surcharge applies and must be collected by the peer-to-peer car-
167 sharing program. The surcharge is subject to all applicable
168 taxes imposed by this chapter.
169 (4)(2) A member of a car-sharing service who uses a motor
170 vehicle as described in subsection (2) (1) for less than 24
171 hours pursuant to an agreement with the car-sharing service
172 shall pay a surcharge of $1 per usage. A member of a car-sharing
173 service who uses the same motor vehicle for 24 hours or more
174 shall pay a surcharge of $2 per day or any part of a day as
175 provided in subsection (2) (1). The car-sharing service shall
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176 collect the surcharge For purposes of this subsection, the term
177 "car-sharing service" means a membership-based organization or
178 business, or division thereof, which requires the payment of an
179 application or membership fee and provides member access to
180 motor vehicles:
181 (a) Only at locations that are not staffed by car-sharing
182 service personnel employed solely for the purpose of interacting
183 with car-sharing service members;
184 (b) Twenty-four hours per day, 7 days per week;
185 (c) Only through automated means, including, but not
186 limited to, smartphone applications or electronic membership
187 cards;
188 (d) On an hourly basis or for a shorter increment of time;
189 (e) Without a separate fee for refueling the motor
190 vehicle;
191 (f) Without a separate fee for minimum financial
192 responsibility liability insurance; and
193 (g) Owned or controlled by the car-sharing service or its
194 affiliates.
195
196 The surcharge imposed under this subsection does not apply to
197 the lease, rental, or use of a motor vehicle from a location
198 owned, operated, or leased by or for the benefit of an airport
199 or airport authority.
200 (5)(a)(3)(a) Notwithstanding s. 212.20, and less the costs
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201 of administration, 80 percent of the proceeds of this surcharge
202 shall be deposited in the State Transportation Trust Fund, 15.75
203 percent of the proceeds of this surcharge shall be deposited in
204 the Tourism Promotional Trust Fund created in s. 288.122, and
205 4.25 percent of the proceeds of this surcharge shall be
206 deposited in the Florida International Trade and Promotion Trust
207 Fund. For the purposes of this subsection, the term "proceeds of
208 this surcharge" of the surcharge means all funds collected and
209 received by the department under this section, including
210 interest and penalties on delinquent surcharges. The department
211 shall provide the Department of Transportation rental car
212 surcharge revenue information for the previous state fiscal year
213 by September 1 of each year.
214 (b) Notwithstanding any other provision of law, the
215 proceeds deposited in the State Transportation Trust Fund shall
216 be allocated on an annual basis in the Department of
217 Transportation's work program to each department district,
218 except the Turnpike District. The amount allocated to each
219 district shall be based on the amount of proceeds attributed to
220 the counties within each respective district.
221 (6)(a)(4) Except as provided in this section, the
222 department shall administer, collect, and enforce the surcharges
223 surcharge as provided in this chapter.
224 (b)(a) The department shall require a dealer dealers to
225 report surcharge collections according to the county to which
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226 the surcharge was attributed. For purposes of this section, the
227 surcharge shall be attributed to the county in which where the
228 rental agreement was entered into, except that, for peer-to-peer
229 car-sharing, the surcharge shall be attributable to the county
230 corresponding to the location of the motor vehicle at the car-
231 sharing start time.
232 (c)(b) A dealer Dealers who collects a collect the rental
233 car surcharge pursuant to this section shall report to the
234 department all surcharge revenues attributed to the county in
235 which where the rental agreement was entered into on a timely
236 filed return for each required reporting period, except that, in
237 the case of peer-to-peer car sharing, the peer-to-peer car-
238 sharing program shall report the applicable surcharge revenue
239 attributed to the county corresponding to the location of the
240 motor vehicle at the car-sharing start time. The provisions of
241 this chapter which apply to interest and penalties on delinquent
242 taxes apply to the surcharge. The surcharge shall not be
243 included in the calculation of estimated taxes pursuant to s.
244 212.11. The dealer's credit provided in s. 212.12 does not apply
245 to any amount collected under this section.
246 (7)(5) The surcharge imposed by this section does not
247 apply to a motor vehicle or a shared vehicle provided at no
248 charge to a person whose motor vehicle is being repaired,
249 adjusted, or serviced by the entity providing the replacement
250 motor vehicle.
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251 Section 3. Section 627.7483, Florida Statutes, is created
252 to read:
253 627.7483 Peer-to-peer car sharing; insurance
254 requirements.—
255 (1) DEFINITIONS.—As used in this section, the term:
256 (a) "Car-sharing delivery period" means the period of time
257 during which a shared vehicle is being delivered to the location
258 of the car-sharing start time, if applicable, as documented by
259 the governing peer-to-peer car-sharing program agreement.
260 (b) "Car-sharing period" means the period of time that
261 commences either at the car-sharing delivery period or, if there
262 is no car-sharing delivery period, at the car-sharing start time
263 and that ends at the car-sharing termination time.
264 (c) "Car-sharing start time" means the time when the
265 shared vehicle is under the control of the shared vehicle
266 driver, which time occurs at or after the time the reservation
267 of the shared vehicle is scheduled to begin, as documented in
268 the records of a peer-to-peer car-sharing program.
269 (d) "Car-sharing termination time" means the earliest of
270 the following events:
271 1. The expiration of the agreed-upon period of time
272 established for the use of a shared vehicle according to the
273 terms of the peer-to-peer car-sharing program agreement if the
274 shared vehicle is delivered to the location agreed upon in the
275 peer-to-peer car-sharing program agreement;
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276 2. The time the shared vehicle is returned to a location
277 as alternatively agreed upon by the shared vehicle owner and
278 shared vehicle driver, as communicated through a peer-to-peer
279 car-sharing program, which alternatively agreed-upon location
280 must be incorporated into the peer-to-peer car-sharing program
281 agreement; or
282 3. The time the shared vehicle owner takes possession and
283 control of the shared vehicle.
284 (e) "Peer-to-peer car sharing" or "car sharing" means the
285 authorized use of a motor vehicle by an individual other than
286 the vehicle's owner through a peer-to-peer car-sharing program.
287 For the purposes of this section, the term does not include the
288 renting of a motor vehicle through a rental car company, the use
289 of a for-hire vehicle as defined in s. 320.01(15), ridesharing
290 as defined in s. 341.031(9), a carpool as defined in s.
291 450.28(3), or the use of a motor vehicle under an agreement for
292 a car-sharing service as defined in s. 212.0606(1).
293 (f) "Peer-to-peer car-sharing program" means a business
294 platform that enables peer-to-peer car sharing by connecting
295 motor vehicle owners with drivers for financial consideration.
296 For the purposes of this section, the term does not include a
297 rental car company, a car-sharing service as defined in s.
298 212.0606(1), a taxicab association, the owner of a for-hire
299 vehicle as defined in s. 320.01(15), or a service provider that
300 is solely providing hardware or software as a service to a
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301 person or an entity that is not effectuating payment of
302 financial consideration for use of a shared vehicle.
303 (g) "Peer-to-peer car-sharing program agreement" means the
304 terms and conditions established by the peer-to-peer car-sharing
305 program which are applicable to a shared vehicle owner and a
306 shared vehicle driver and which govern the use of a shared
307 vehicle through a peer-to-peer car-sharing program. For the
308 purposes of this section, the term does not include a rental
309 agreement or an agreement for a for-hire vehicle as defined in
310 s. 320.01(15) or for a car-sharing service as defined in s.
311 212.0606(1).
312 (h) "Shared vehicle" means a motor vehicle that is
313 available for sharing through a peer-to-peer car-sharing
314 program. For the purposes of this section, the term does not
315 include a rental car, a for-hire vehicle as defined in s.
316 320.01(15), or a motor vehicle used for ridesharing as defined
317 in s. 341.031(9), for a carpool as defined in s. 450.28(3), or
318 for a car-sharing service as defined in s. 212.0606(1).
319 (i) "Shared vehicle driver" means an individual who has
320 been authorized by the shared vehicle owner to drive the shared
321 vehicle under the peer-to-peer car-sharing program agreement.
322 (j) "Shared vehicle owner" means the registered owner, or
323 a natural person or an entity designated by the registered
324 owner, of a motor vehicle made available for sharing to shared
325 vehicle drivers through a peer-to-peer car-sharing program. For
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326 the purposes of this section, the term does not include an owner
327 of a for-hire vehicle as defined in s. 320.01(15).
328 (2) INSURANCE COVERAGE REQUIREMENTS.—
329 (a)1. A peer-to-peer car-sharing program shall ensure
330 that, during each car-sharing period, the shared vehicle owner
331 and the shared vehicle driver are insured under a motor vehicle
332 insurance policy that provides all of the following:
333 a. Property damage liability coverage that meets the
334 minimum coverage amounts required under s. 324.022.
335 b. Bodily injury liability coverage limits as described in
336 s. 324.021(7)(a) and (b).
337 c. Personal injury protection benefits that meet the
338 minimum coverage amounts required under s. 627.736.
339 d. Uninsured and underinsured vehicle coverage as required
340 under s. 627.727.
341 2. The peer-to-peer car-sharing program shall also ensure
342 that the motor vehicle insurance policy under subparagraph 1.:
343 a. Recognizes that the shared vehicle insured under the
344 policy is made available and used through a peer-to-peer car-
345 sharing program; or
346 b. Does not exclude the use of a shared vehicle by a
347 shared vehicle driver.
348 (b)1. The insurance described under paragraph (a) may be
349 satisfied by a motor vehicle insurance policy maintained by:
350 a. A shared vehicle owner;
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351 b. A shared vehicle driver;
352 c. A peer-to-peer car-sharing program; or
353 d. A combination of a shared vehicle owner, a shared
354 vehicle driver, and a peer-to-peer car-sharing program.
355 2. The insurance policy maintained in subparagraph 1.
356 which satisfies the insurance requirements under paragraph (a)
357 is primary during each car-sharing period. If a claim occurs
358 during the car-sharing period in another state with minimum
359 financial responsibility limits higher than those limits
360 required under chapter 324, the coverage maintained under
361 paragraph (a) satisfies the difference in minimum coverage
362 amounts up to the applicable policy limits.
363 3.a. If the insurance maintained by a shared vehicle owner
364 or shared vehicle driver in accordance with subparagraph 1. has
365 lapsed or does not provide the coverage required under paragraph
366 (a), the insurance maintained by the peer-to-peer car-sharing
367 program must provide the coverage required under paragraph (a),
368 beginning with the first dollar of a claim, and must defend such
369 claim, except under circumstances as set forth in subparagraph
370 (3)(a)2.
371 b. Coverage under a motor vehicle insurance policy
372 maintained by the peer-to-peer car-sharing program must not be
373 dependent on another motor vehicle insurer first denying a
374 claim, and another motor vehicle insurance policy is not
375 required to first deny a claim.
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376 c. Notwithstanding any other law, statute, rule, or
377 regulation to the contrary, a peer-to-peer car-sharing program
378 has an insurable interest in a shared vehicle during the car-
379 sharing period. This sub-subparagraph does not create liability
380 for a peer-to-peer car-sharing program for maintaining the
381 coverage required under paragraph (a) and under this paragraph,
382 if applicable.
383 d. A peer-to-peer car-sharing program may own and maintain
384 as the named insured one or more policies of motor vehicle
385 insurance which provide coverage for:
386 (I) Liabilities assumed by the peer-to-peer car-sharing
387 program under a peer–to–peer car-sharing program agreement;
388 (II) Liability of the shared vehicle owner;
389 (III) Liability of the shared vehicle driver;
390 (IV) Damage or loss to the shared motor vehicle; or
391 (V) Damage, loss, or injury to persons or property to
392 satisfy the personal injury protection and uninsured and
393 underinsured motorist coverage requirements of this section.
394 e. Insurance required under paragraph (a), when maintained
395 by a peer-to-peer car-sharing program, may be provided by an
396 insurer authorized to do business in this state which is a
397 member of the Florida Insurance Guaranty Association or an
398 eligible surplus lines insurer that has a superior, excellent,
399 exceptional, or equivalent financial strength rating by a rating
400 agency acceptable to the office. A peer-to-peer car-sharing
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401 program is not transacting in insurance when it maintains the
402 insurance required under this section.
403 (3) LIABILITIES AND INSURANCE EXCLUSIONS.—
404 (a) Liability.—
405 1. A peer-to-peer car-sharing program shall assume
406 liability, except as provided in subparagraph 2., of a shared
407 vehicle owner for bodily injury or property damage to third
408 parties or uninsured and underinsured motorist or personal
409 injury protection losses during the car-sharing period in an
410 amount stated in the peer-to-peer car-sharing program agreement,
411 which amount may not be less than those set forth in ss.
412 324.021(7)(a) and (b), 324.022, 627.727, and 627.736,
413 respectively.
414 2. The assumption of liability under subparagraph 1. does
415 not apply if a shared vehicle owner:
416 a. Makes an intentional or fraudulent material
417 misrepresentation or omission to the peer-to-peer car-sharing
418 program before the car-sharing period in which the loss occurs;
419 or
420 b. Acts in concert with a shared vehicle driver who fails
421 to return the shared vehicle pursuant to the terms of the peer-
422 to-peer car-sharing program agreement.
423 3. The insurer, insurers, or peer-to-peer car-sharing
424 program providing coverage under paragraph (2)(a) shall assume
425 primary liability for a claim when:
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426 a. A dispute exists over who was in control of the shared
427 motor vehicle at the time of the loss, and the peer-to-peer car-
428 sharing program does not have available, did not retain, or
429 fails to provide the information required under subsection (5);
430 or
431 b. A dispute exists over whether the shared vehicle was
432 returned to the alternatively agreed-upon location as required
433 under subparagraph (1)(d)2.
434 (b) Vicarious liability.—A peer-to-peer car-sharing
435 program and a shared vehicle owner are exempt from vicarious
436 liability consistent with 49 U.S.C. s. 30106 (2005) under any
437 state or local law that imposes liability solely based on
438 vehicle ownership.
439 (c) Exclusions in motor vehicle insurance policies.—An
440 authorized insurer that writes motor vehicle liability insurance
441 in this state may exclude any coverage and the duty to defend or
442 indemnify for any claim under a shared vehicle owner's motor
443 vehicle insurance policy, including, but not limited to:
444 1. Liability coverage for bodily injury and property
445 damage;
446 2. Personal injury protection coverage;
447 3. Uninsured and underinsured motorist coverage;
448 4. Medical payments coverage;
449 5. Comprehensive physical damage coverage; and
450 6. Collision physical damage coverage.
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451
452 This paragraph does not invalidate or limit any exclusion
453 contained in a motor vehicle insurance policy, including any
454 insurance policy in use or approved for use which excludes
455 coverage for motor vehicles made available for rent, sharing, or
456 hire or for any business use. This paragraph does not
457 invalidate, limit, or restrict an insurer's ability under
458 existing law to underwrite, cancel, or nonrenew any insurance
459 policy.
460 (d) Contribution against indemnification.—A shared vehicle
461 owner's motor vehicle insurer that defends or indemnifies a
462 claim against a shared vehicle which is excluded under the terms
463 of its policy has the right to seek recovery against the motor
464 vehicle insurer of the peer-to-peer car-sharing program if the
465 claim is:
466 1. Made against the shared vehicle owner or the shared
467 vehicle driver for loss or injury that occurs during the car-
468 sharing period; and
469 2. Excluded under the terms of its policy.
470 (4) NOTIFICATION OF IMPLICATIONS OF LIEN.—At the time a
471 motor vehicle owner registers as a shared vehicle owner on a
472 peer-to-peer car-sharing program and before the shared vehicle
473 owner may make a shared vehicle available for car sharing on the
474 peer-to-peer car-sharing program, the peer-to-peer car-sharing
475 program must notify the shared vehicle owner that, if the shared
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476 vehicle has a lien against it, the use of the shared vehicle
477 through a peer-to-peer car-sharing program, including the use
478 without physical damage coverage, may violate the terms of the
479 contract with the lienholder.
480 (5) RECORDKEEPING.—A peer-to-peer car-sharing program
481 shall:
482 (a) Collect and verify records pertaining to the use of a
483 shared vehicle, including, but not limited to, the times used,
484 car-sharing period pickup and dropoff locations, and revenues
485 received by the shared vehicle owner.
486 (b) Retain the records in paragraph (a) for a time period
487 not less than the applicable personal injury statute of
488 limitations.
489 (c) Provide the information contained in the records in
490 paragraph (a) upon request to the shared vehicle owner, the
491 shared vehicle owner's insurer, or the shared vehicle driver's
492 insurer to facilitate a claim coverage investigation,
493 settlement, negotiation, or litigation.
494 (6) CONSUMER PROTECTIONS.—
495 (a) Disclosures.—Each peer-to-peer car-sharing program
496 agreement made in this state must disclose to the shared vehicle
497 owner and the shared vehicle driver:
498 1. Any right of the peer-to-peer car-sharing program to
499 seek indemnification from the shared vehicle owner or the shared
500 vehicle driver for economic loss resulting from a breach of the
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501 terms and conditions of the peer-to-peer car-sharing program
502 agreement.
503 2. That a motor vehicle insurance policy issued to the
504 shared vehicle owner for the shared vehicle or to the shared
505 vehicle driver does not provide a defense or indemnification for
506 any claim asserted by the peer-to-peer car-sharing program.
507 3. That the peer-to-peer car-sharing program's insurance
508 coverage on the shared vehicle owner and the shared vehicle
509 driver is in effect only during each car-sharing period and
510 that, for any use of the shared vehicle by the shared vehicle
511 driver after the car-sharing termination time, the shared
512 vehicle driver and the shared vehicle owner may not have
513 insurance coverage.
514 4. The daily rate and, if applicable, any insurance or
515 protection package costs that are charged to the shared vehicle
516 owner or the shared vehicle driver.
517 5. That the shared vehicle owner's motor vehicle liability
518 insurance may exclude coverage for a shared vehicle.
519 6. An emergency telephone number of the personnel capable
520 of fielding calls for roadside assistance and other customer
521 service inquiries.
522 7. Any conditions under which a shared vehicle driver must
523 maintain a personal motor vehicle insurance policy with certain
524 applicable coverage limits on a primary basis in order to book a
525 shared vehicle.
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526 (b) Driver license verification and data retention.—
527 1. A peer-to-peer car-sharing program may not enter into a
528 peer-to-peer car-sharing program agreement with a driver unless
529 the driver:
530 a. Holds a driver license issued under chapter 322 which
531 authorizes the driver to drive vehicles of the class of the
532 shared vehicle;
533 b. Is a nonresident who:
534 (I) Holds a driver license issued by the state or country
535 of the driver's residence which authorizes the driver in that
536 state or country to drive vehicles of the class of the shared
537 vehicle; and
538 (II) Is at least the same age as that required of a
539 resident to drive; or
540 c. Is otherwise specifically authorized by the Department
541 of Highway Safety and Motor Vehicles to drive vehicles of the
542 class of the shared vehicle.
543 2. A peer-to-peer car-sharing program shall keep a record
544 of:
545 a. The name and address of the shared vehicle driver;
546 b. The driver license number of the shared vehicle driver
547 and each other person, if any, who will operate the shared
548 vehicle; and
549 c. The place of issuance of the driver license.
550 (c) Responsibility for equipment.—A peer-to-peer car-
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551 sharing program has sole responsibility for any equipment that
552 is put in or on the shared vehicle to monitor or facilitate the
553 peer-to-peer car-sharing transaction, including a GPS system.
554 The peer-to-peer car-sharing program shall indemnify and hold
555 harmless the shared vehicle owner for any damage to or theft of
556 such equipment during the car-sharing period which is not caused
557 by the shared vehicle owner. The peer-to-peer car-sharing
558 program may seek indemnity from the shared vehicle driver for
559 any damage to or loss of such equipment which occurs during the
560 car-sharing period.
561 (d) Motor vehicle safety recalls.—At the time a motor
562 vehicle owner registers as a shared vehicle owner on a peer-to-
563 peer car-sharing program and before the shared vehicle owner may
564 make a shared vehicle available for car sharing on the peer-to-
565 peer car-sharing program, the peer-to-peer car-sharing program
566 must:
567 1. Verify that the shared vehicle does not have any safety
568 recalls on the vehicle for which the repairs have not been made;
569 and
570 2. Notify the shared vehicle owner that if the shared
571 vehicle owner:
572 a. Has received an actual notice of a safety recall on the
573 vehicle, he or she may not make a vehicle available as a shared
574 vehicle on the peer-to-peer car-sharing program until the safety
575 recall repair has been made.
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576 b. Receives an actual notice of a safety recall on a
577 shared vehicle while the shared vehicle is made available on the
578 peer-to-peer car-sharing program, he or she shall remove the
579 shared vehicle as available on the peer-to-peer car-sharing
580 program as soon as practicably possible after receiving the
581 notice of the safety recall and until the safety recall repair
582 has been made.
583 c. Receives an actual notice of a safety recall while the
584 shared vehicle is in the possession of a shared vehicle driver,
585 he or she shall notify the peer-to-peer car-sharing program
586 about the safety recall as soon as practicably possible after
587 receiving the notice of the safety recall, so that he or she may
588 address the safety recall repair.
589 (7) CONSTRUCTION.—This section does not limit:
590 (a) The liability of a peer-to-peer car-sharing program
591 for any act or omission of the peer-to-peer car-sharing program
592 which results in bodily injury to a person as a result of the
593 use of a shared vehicle through peer-to-peer car sharing; or
594 (b) The ability of a peer-to-peer car-sharing program to
595 seek, by contract, indemnification from the shared vehicle owner
596 or the shared vehicle driver for economic loss resulting from a
597 breach of the terms and conditions of the peer-to-peer car-
598 sharing program agreement.
599 Section 4. This act shall take effect January 1, 2022.
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CS/HB 387
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 387 Improvements to Real Property
SPONSOR(S): Tourism, Infrastructure & Energy Subcommittee, Fine and others
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Tourism, Infrastructure & Energy Subcommittee 17 Y, 0 N Willson Keating
2) Local Administration & Veterans Affairs 15 Y, 0 N Darden Miller
Subcommittee
3) Ways & Means Committee 15 Y, 2 N Curry Aldridge
4) Commerce Committee Willson Hamon
SUMMARY ANALYSIS
In 2010, the Legislature provided specific authority for local governments to create Property Assessed Clean
Energy (PACE) programs to provide up-front financing for certain qualifying improvements. Under these
programs, property owners may apply to the local government for funding to finance a qualifying improvement
and voluntarily enter into a financing agreement with the local government. “Qualifying improvements” include
energy conservation and efficiency improvements, renewable energy improvements, and wind resistance
improvements to existing facilities. Property owners finance qualifying improvements through a non-ad valorem
assessment on their property. Local governments determine whether to offer a residential or commercial PACE
program, whether to administer the program directly or through a for-profit or not-for-profit administrator, or any
combination thereof.
The bill adds several consumer protections relating to the current PACE program, including:
Specifying that a financing agreement may not be used to fund ancillary work not meeting specified
conditions.
Capping the total of all non-ad valorem assessments, plus any mortgage-related debt on the property,
at 97 percent of a residential property’s fair market value.
Requiring a determination that a residential property owner is able to pay the assessment and meets
certain minimum creditworthiness requirements.
Allowing property owners to cancel a financing agreement within three days of execution.
Ensuring that financing agreements do not exceed the estimated useful life of the qualifying
improvement.
Requiring acknowledgement of a number of key terms and disclosures, both orally and in writing,
before execution of the financing agreement by the property owner.
Requiring the appropriate licensure and background screening for contractors who install qualifying
improvements under a PACE program.
Requiring verification that the work was completed to code before funds are disbursed.
Imposing certain marketing and communication guidelines, including limitations and prohibitions on
solicitation, advertising, and other inducements.
Specifying terms relating to enforceability of contracts for qualifying improvements and associated
remedies.
The bill also requires the local government to post an online annual report documenting certain PACE
activities.
The bill does not have a fiscal impact on state government. The bill does not appear to impact local
government revenues, but may have an insignificant negative impact on local government expenditures.
The bill takes effect on 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
Property Assessed Clean Energy (PACE) Programs
Generally, Property Assessed Clean Energy (PACE) programs enable local governments to establish
programs to provide financing for certain qualifying improvements on real property which reduce energy
consumption and increase energy efficiency. PACE allows individual property owners to contract
directly with qualified contractors for energy efficiency and renewable energy projects. The local
government issues revenue bonds and uses the proceeds to provide initial project funding, which
bonds are repaid by non-ad valorem assessments on participating property owners’ tax bills.1 The first
residential PACE program was launched in 2008 in Berkeley and Palm Desert, California.2 PACE
programs are active in 24 states plus Washington D.C., but only California, Florida, and Missouri offer
residential PACE programs.3
PACE in Florida
In 2010, the Legislature provided specific authority for local governments to create PACE programs.4
The statute5 provides supplemental authority to local governments6 concerning qualified improvements
to residential and non-residential real property. The law provides that if a local government authorizes a
PACE program, property owners may apply to the local government for funding to finance a qualifying
improvement and voluntarily enter into a financing agreement with the local government.7 “Qualifying
improvements” include energy conservation and efficiency improvements, renewable energy
improvements, and wind resistance improvements to existing facilities.8
At least 30 days before entering into the financing agreement, the property owner must provide notice
to any mortgage holder or loan servicer of the intent to enter into the agreement, the maximum amount
to be financed, and the maximum annual assessment required to repay the amount.9 The law provides
that an acceleration clause for “payment of the mortgage, note, or lien or other unilateral modification
solely as a result of entering into a financing agreement … is not enforceable.”10 However, the
mortgage holder or loan servicer may increase the required monthly escrow by an amount necessary to
pay annually the qualifying improvement assessment.
The law authorizes a local government to partner with one or more other local governments to provide
and finance qualifying improvements, levy a non-ad valorem assessment to fund a qualifying
improvement, incur debt to provide financing for qualifying improvements, and collect costs incurred
from financing qualifying improvements through a non-ad valorem assessment. These non-ad valorem
assessments are senior to existing mortgage debt,11 so if the homeowner defaults on their mortgage or
1 For more information, See http://www.pacenation.org and http://floridapace.gov/ (last visited Mar. 7, 2021).
2 NCSL, PACE Financing https://www.ncsl.org/research/energy/pace-financing.aspx (last visited Mar. 7, 2021).
3 California offers residential PACE financing for improvements related to electric vehicle charging, infrastructure, energy efficiency,
renewable energy, seismic strengthening and water efficiency. Missouri offers PACE financing for improvements related to energy
efficiency and renewable energy. Additionally, Maine offers residential programs without holding a lien against properties. NCSL, A
Clean-Energy Financing Program for Homeowners Now Has Tougher Consumer Protections (Nov. 17, 2017),
https://www.ncsl.org/bookstore/state-legislatures-magazine/clean-energy-financing-consumer-protection.aspx. See also PACE Nation,
PACE Programs https://www.pacenation.org/pace-programs/ (last visited Mar. 9, 2021).
4 Ch. 2010-139, Laws of Fla.
5 S. 163.08, F.S.
6 Section 163.08(2)(a), F.S., defines “local government” as a county, a municipality, a dependent special district as defined in s.
189.012, or a separate legal entity created pursuant to s. 163.01(7) (the Florida Interlocal Cooperation Act).”
7 S. 163.08(4), F.S.
8 S. 163.08(2)(b), F.S.
9 S. 163.08(13), F.S.
10 S. 163.08(15), F.S.
11 See ss. 125.01(1)(r), 170.01 and 170.09, F.S.
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goes into foreclosure, the delinquent PACE assessment payments may be recovered before the
mortgage. Current law also specifies that a PACE program may be administered by a for-profit entity or
a not-for-profit organization on behalf of and at the discretion of the local government.
In 2012, the Legislature expanded the definition of “local government” to allow a partnership of local
governments formed pursuant to the Florida Interlocal Cooperation Act12 to enter into a financing
agreement wherein the partnership, as a separate legal entity, imposes the PACE assessment.13
To participate in a PACE program, a property owner must have paid property taxes and not been
delinquent for the previous three years.14 The total assessment cannot be for an amount greater than
20 percent of the just value of the property as determined by the county property appraiser, unless
consent is obtained from the mortgage holders.15
In Florida, local governments typically have multiple non-exclusive agreements with a number of PACE
providers.16 Generally, PACE providers are private companies that administer the local government’s
PACE program on behalf of the local government and provide funding from private sources. PACE
providers generally act as the program administrator for special districts created pursuant to an
interlocal agreement between two or more Florida local governments. Once the PACE district is
created, additional counties or municipalities may join the special district as members, authorizing the
PACE provider for the special district to administer PACE programs on behalf of the newly joined
members.17 PACE providers generally maintain a list of approved contractors authorized to provide
qualifying improvements.18
For example, Broward County authorizes the following PACE providers:19
Counterpointe Energy Solutions provides financing under the “AllianceNRG” Program
(residential) and the "CounterpointeSRE" Program (commercial). Administers PACE program
for the Florida PACE Funding District.
Berkadia administers a commercial PACE program. Administers PACE program for the Florida
Renewable Energy District.
CleanFund administers a commercial PACE program. Administers PACE program for the
Florida Renewable Energy District.
Dividend Finance administers the “Dividend” Program. Administers PACE program for the
Florida Renewable Energy District.
Greenworks Lending administers a commercial PACE program. Administers PACE program for
the Florida Renewable Energy District.
Lever Energy Capital administers a commercial PACE program. Administers PACE program for
the Florida Resiliency and Energy District.
PACE Funding Group, LLC administers the “PACEfunding” Program (residential). Administers
PACE program for the Florida Resiliency and Energy District.
Rahill administers a commercial PACE program. Administers PACE program for the Florida
Resiliency and Energy District.
Renew Financial administers PACE programs under the “RenewPACE” Program (residential
and commercial). Administers PACE program for the Florida Green Finance Authority.
Renovate America administers the “HERO” Program.
Structured Finance Associates administers a commercial PACE program. Administers PACE
program for the Florida Renewable Energy District.
12 S. 163.01(7), F.S.
13 Ch. 2012-117, Laws of Fla.
14 S. 163.08(9), F.S.
15 S. 163.08(12)(a), F.S.
16 See Florida Pace Funding Agency, Service Areas, https://floridapace.gov/serviceareas/ (last visited Mar. 17, 2021).
17 See Green Corridor Property Assessed Clean Energy (PACE) District Town of Cutler Bay, Florida Financial Report for the Fiscal
Year Ended Sept. 30, 2014, at 13,
https://flauditor.gov/pages/specialdistricts_efile%20rpts/2014%20green%20corridor%20property%20assessed%20clean%20energy%2
0(pace)%20district.pdf (last visited Mar. 9, 2021).
18 See Sarasota County, PACE, https://www.scgov.net/government/uf-ifas-extension-and-sustainability/pace (last visited Mar. 9, 2021).
19 Broward County, Energy & Sustainability Program: Property Assessed Clean Energy (PACE)
https://www.broward.org/Climate/EnergyAndSustainabilityProgram/pages/pace.aspx (last visited Mar. 9, 2021).
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Twain Financial Partners administers a commercial PACE program. Administers PACE program
for the Florida Resiliency and Energy District.
Ygrene administers the “Clean Energy Program” (residential and commercial). Administers
PACE program for the Clean Energy Green Corridor Pace District.20
Local governments may choose whether to offer a residential or commercial PACE program, whether
to administer the program directly or through a third-party PACE provider, or any combination thereof.
Currently, PACE financing typically offers an average interest rate of 6 to 8 percent, not including
additional associated fees, which is repaid over a term of 15 to 20 years. Interest rates and fees for a
project are set by the PACE provider when the agreement is finalized with the property owner.21
Federal Housing Finance Agency and Super-Priority Liens
In 2010,22 and again in 2014,23 the Federal Housing Finance Agency (FHFA) directed mortgage
underwriters Fannie Mae and Freddie Mac not to purchase mortgages of homes encumbered by a first-
lien PACE loan due to its senior status above a mortgage. Under normal circumstances, real estate lien
priority is established by the order in which the liens are filed.24
According to the FHFA, such super-priority liens increase the risk of losses to taxpayers. Fannie Mae
and Freddie Mac support the housing finance market by purchasing, guaranteeing, and securitizing
single-family mortgages. Therefore, mortgages supported by Fannie Mae and Freddie Mac must
remain in first-lien position, meaning they have first priority in receiving the proceeds from the sale of a
property in foreclosure. Although FHFA generally supports energy retrofit financing programs, FHFA
acknowledges that such programs should be structured to ensure protection of the core financing for
the home.25
This restriction has two potential implications for borrowers. First, a homeowner with a first-lien PACE
loan may not refinance their existing mortgage with a Fannie Mae or Freddie Mac mortgage. Second,
anyone wanting to buy a home that already has a first-lien PACE loan cannot use a Fannie Mae or
Freddie Mac loan for the purchase. These restrictions may reduce the marketability of the house or
require the homeowner to pay off the PACE loan before selling the house.26
20 See PACE Broward, Frequently Asked Questions,
https://www.broward.org/Climate/EnergyAndSustainabilityProgram/Documents/PACE%20Broward%20FAQ%20Sheet_Update4_09212
018.pdf (last visited Mar. 9, 2021).
21 Palm Beach County, PACE Frequently Asked Questions https://discover.pbcgov.org/resilience/Pages/PACE-Frequently-Asked-
Questions.aspx (last visited Mar. 9, 2021).
22 Federal Housing Finance Agency, FHFA Statement on Certain Energy Retrofit Loan Programs (July, 6, 2010),
http://www.fhfa.gov/Media/PublicAffairs/Pages/FHFA-Statement-on-Certain-Energy-Retrofit-Loan-Programs.aspx (last visited Mar. 7,
2021). See also Federal Housing Financial Agency, Statement of the Federal Housing Finance Agency on Certain Super Priority Liens
(December 22, 2014)(“FHFA wants to make clear to homeowners, lenders, other financial institutions, state officials, and the public that
Fannie Mae and Freddie Mac’s policies prohibit the purchase of a mortgage where the property has a first-lien PACE loan attached to
it”) http://www.fhfa.gov/Media/PublicAffairs/Pages/Statement-of-the-Federal-Housing-Finance-Agency-on-Certain-Super-Priority-
Liens.aspx (last visited Mar. 7, 2021).
23 FHFA, Statement of the Federal Housing Finance Agency on Certain Super-Priority Liens (Dec. 22, 2014),
https://www.fhfa.gov/Media/PublicAffairs/Pages/Statement-of-the-Federal-Housing-Finance-Agency-on-Certain-Super-Priority-
Liens.aspx (last visited Mar. 9, 2021).
24 “Real estate liens generally are ordered so that prior liens are paid in foreclosure before liens filed later in time. For example, a
mortgage loan used to buy the property takes priority over a later mortgage loan used to remodel the home. The earliest and thus
highest priority mortgage loan is known as a first lien, while the subsequent mortgage loan is deemed a second lien. If the homeowner
defaults on the second lien loan, the first lien mortgage holder retains the lien even if the second lien mortgage holder forecloses;
however, the converse is not true. Tax assessments are an exception to this lien priority rule. Generally, unpaid property tax
assessments have priority over other liens, regardless of the date the prior liens were recorded or when the tax assessments became
delinquent. This makes the lien priority for PACE financing senior to liens for mortgage loans closed prior to the homeowner’s
acceptance of the PACE financing. In the case of default by the homeowner on the PACE assessment, local governments and
investors in PACE bonds can expect to collect the balance owed on a PACE assessment before any recovery by a mortgage lender.”
Prentiss Cox, Keeping PACE?: The Case Against Property Assessed Clean Energy Financing Programs, 83 U. Colo. L. Rev. 83, 94
(2011), https://scholarship.law.umn.edu/faculty_articles/549 (last visited Mar. 9, 2021).
25 FHFA Statement on Certain Energy Retrofit Loan Programs, supra, note 22.
26 FHFA Statement on Certain Energy Retrofit Loan Programs, supra, note 22.
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Additionally, in December 2017, the Department of Housing and Urban Development announced that
the Federal Housing Administration will no longer insure new mortgages on properties that include
PACE assessments, citing concerns about the potential for increased losses to the Mutual Mortgage
Insurance Fund resulting from the priority lien status given to such assessments.27
Some residential PACE programs are now operating with loan loss reserve funds, appropriate
disclosures, or other protections meant to address FHFA's concerns.28 For example, in 2013 California
created a reserve fund to compensate first mortgage lenders in case of a foreclosure or a forced sale
attributable to a PACE loan. Additionally, Oklahoma and Vermont have passed legislation to
downgrade PACE from senior lien to junior lien, and there have been attempts by Congress to revise
residential PACE programs at the federal level, including the 2014 PACE Assessment Protection Act.29
Consumer Protection
Consumer issues have surrounded the PACE programs from their inception.30 These include the cost
of funding, contractor sales techniques (notably, responding to a limited homeowner problem and
marketing a full house retrofit), rolling the administrative fees for the local government into the PACE
loan amount, product sales at above market interest rates, workmanship issues, inadequate
disclosures, and indiscriminate lending regardless of ability to repay.31
In response to these consumer issues, Congress amended the Truth in Lending Act in 2018 to direct
the Consumer Financial Protection Bureau to implement federal regulations which provide more
effective consumer protections relating to PACE loans, especially those related to the ability of a
homeowner to repay the loan.32
The United States Department of Energy maintains “best practice guidelines” for residential PACE
financing programs, which includes measures relating to:
Establishing financial eligibility and verifying property ownership;
Confirming property-based debt, tax assessments, and property valuation;
Reviewing property owner income and debt obligations;
Establishing consumer and lender protections;
Establishing property owner education and disclosures;
Providing a right to cancel the purchase;
Determining appropriate minimum equity requirements and appropriate maximum
assessments;
Providing equipment specifications and energy assessments;
Defining the relationship between PACE assessments and mortgage financing;
Providing for non-acceleration upon property owner default;
Notifying mortgage holders of record; and
Addressing the needs and potential vulnerabilities of low-income and elderly households.33
27 FHFA, Property Assessed Clean Energy (PACE) Program, 85 Fed. Reg. 11,2738 (Jan. 16, 2020).
28 Commercial PACE programs were not directly affected by FHFA’s actions because Fannie Mae and Freddie Mac do not underwrite
commercial mortgages.
29 NCSL, PACE Financing https://www.ncsl.org/research/energy/pace-financing.aspx (last visited Mar. 7, 2021).
30 “PACE loans, offered through home improvement contractors, often in door-to-door sales, and secured by a property tax lien, are
collected through a property tax assessment that takes priority over any existing mortgage. PACE programs must be authorized by
state and local governments, but are privately run with little or no government oversight. Over the last two years, there has been a
sharp increase in homeowners seeking assistance from legal services and other organizations in relation to PACE loans. The goal of
improving home energy efficiency is being overshadowed by the lack of adequate consumer protection for these loans. Weak PACE
loan regulation enables contractors to saddle homeowners with debt they cannot afford and puts their homes at risk for foreclosure.”
National Consumer Law Center, Advocates Applaud CFPB’s Intention to Deal with PACE Loan Program Abuses (Mar. 4, 2019),
https://www.nclc.org/media-center/advocates-applaud-cfpbs-intention-to-deal-with-pace-loan-program-abuses.html (last visited Mar. 9,
2021).
31 FHFA, Property Assessed Clean Energy (PACE) Program, 85 Fed. Reg. 11,2738 (Jan. 16, 2020).
32 FHFA, Property Assessed Clean Energy (PACE) Program, 85 Fed. Reg. 11,2738 (Jan. 16, 2020). See also Public Law 115–174
(2018), section 307; codified at 15 U.S.C. 1639c(b)(3)(C). and Bureau of Consumer Financial Protection, Advance Notice of Proposed
Rulemaking on Residential Property Assessed Clean Energy Financing, 84 FR 8479 (Mar. 8, 2019).
33 Department of Energy, Best Practice Guidelines for Residential PACE Financing Programs (Nov. 18, 2016),
https://www.energy.gov/sites/prod/files/2016/11/f34/best-practice-guidelines-RPACE.pdf (last visited Mar. 9, 2021).
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Some local governments in Florida have implemented more stringent consumer protections than those
required by Florida law.34
Effect of the Bill
The bill amends s. 163.08, F.S., providing a number of changes to the PACE program.
Eligibility for PACE Loans
The bill provides that the total amount of any non-ad valorem assessment for a property under this
section may not exceed 20 percent of the fair market value of the property. Additionally, the total of any
non-ad valorem assessments plus any mortgage-related debt on the property may not exceed 97
percent of the fair market value of the property. The fair market value of the property must be derived
using any methodology commonly used in the real estate finance industry.
The bill requires a PACE program administrator to use certain information to reasonably determine
whether the property owner has the ability to pay the annual assessment for the qualifying
improvement, including the property owner's household income, housing expenses, assets, and other
debt obligations.
The bill specifies that a financing agreement may not be used to fund ancillary work unless the scope of
the ancillary work is directly related to and necessary for the installation and safe operation of a
qualifying improvement and the cost of the ancillary work does not exceed the cost of the individual
qualifying improvement to which it is directly related.
The bill creates definitions for the following terms:
"Facility," means any portion of a building, structure, or site improvement located on a site as
defined in Section 202 of the 2020 Florida Building Code.
"PACE contractor" means an independent contractor who is authorized under this section to
contract with a property owner to install qualifying improvements on real property and who is not
the owner of the property.
"Program administrator" means a for-profit or not-for-profit entity which administers a qualifying
improvement program on behalf and at the discretion of a local government.
"Qualifying improvement program" means a program that includes financing and administration
activities undertaken by a program administrator or other authorized entity for property owners
to purchase and install qualifying improvements on a building or facility.
"Residential property" means real estate on which any of the following is located:
o One single-family residential unit or one multifamily structure containing one to four
residential units;
o Single-family residential units such as condominiums, townhouses, timeshares, mobile
homes, or houses in a subdivision that may be legally sold, leased, or otherwise
conveyed on a unit-by-unit basis, regardless of whether the units are a part of a larger
building or parcel containing more than four residential units.
Written Disclosures
The bill specifies that, before entering into a financing agreement for a qualifying improvement, the
local government or program administrator must determine if:
The property owner is current on all mortgage debt on the property and has had no more than
one late payment exceeding 30 days during the 12 months immediately preceding the
application date.
The holders or loan servicers of any mortgage encumbering or otherwise secured by the
property have received notice of the assessment at least 30 days in advance.
34 See, e.g., Palm Beach County, Ord. No. 2017-012, Section 6. Disclosure Requirements
https://discover.pbcgov.org/resilience/PDF/PACE_ORDINANCE_2017-012%20-%20ADA%20Compliant.pdf (last visited Mar. 9, 2021).
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Property owners whose taxes are paid through an escrow account have notified the holder of
the escrow account that a non-ad valorem assessment will be imposed upon the property.
The term of the financing agreement does not exceed the estimated useful life of the qualifying
improvement.
The property owner has acknowledged certain written disclosures, as described below.
A residential property owner has not been subject to a bankruptcy proceeding within the last 7
years unless it was discharged or dismissed more than 2 years prior.
A residential property owner is current on nonmortgage debt excluding medical debt, and has
had no more than one late payment exceeding 30 days during the 12 months.
The property is within the geographic boundaries of the applicable qualifying improvement
program.
The property owner has obtained or sought to obtain additional qualifying improvements on the
same property that have not yet been recorded.
The bill requires that the local government or program administrator, before execution of the financing
agreement, provide a written disclosure form to the property owner, which contains the key terms of the
agreement, including:
A description of the qualifying improvement;
The total financed amount, including the cost of the qualifying improvement, ancillary work,
installation, program fees, and prepaid interest, if any;
The annual assessment process and yearly payment schedule;
The amount of the annual assessment;
The term of the total financed amount;
The interest rate for the financed amount;
The annual percentage rate;
The total estimated annual costs that the residential real property owner will have to pay under
the assessment contract, including applicable fees;
The total estimated average monthly equivalent amount of funds the residential real property
owner would have to save in order to pay the annual costs of the assessment, including
applicable fees;
The estimated date when the residential real property owner's first property tax payment, which
includes the assessment, will be due.
The disclosure form must contain the following statements, which must be individually acknowledged in
writing:
"I UNDERSTAND THAT IF I SELL OR REFINANCE THE PROPERTY, I MAY BE REQUIRED
TO PAY OFF THE OUTSTANDING FINANCED AMOUNT AS A CONDITION OF THE SALE
OR THE REFINANCE OF THE PROPERTY." (This disclosure must be made in 24-point, bold
font.)
"I understand that the annual assessment will be paid when property taxes are paid and will
result in a lien being placed on my property."
"I understand that the annual assessment will be added to my property tax bill and if I pay my
property taxes through my mortgage payment using an escrow account, I must notify my
mortgage lender."
"I understand that if I fail to pay the annual assessment, I may incur penalties and fees and the
local government could issue a tax certificate which might result in the loss of my property."
“I understand that any potential utility or insurance savings are not guaranteed and will not
reduce the assessment or total assessment amount.”
"I understand that I have 3 days to cancel the financing agreement. The 3-day right expires on
midnight of the third business day after I sign the agreement."
“I understand that the local government, program administrator, or PACE contractor do not
provide tax advice and that I should seek professional tax advice if I have questions regarding
tax credits, tax deductibility, or other tax impacts of the qualifying improvement or the
assessment contract.
"I understand that I cannot be assessed a penalty if I prepay the outstanding financed amount."
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A printed cancellation form must be provided to the property owner no later than the time the property
owner signs the financing agreement that allows the property owner to cancel the contract.
Oral Disclosures
The bill requires the local government or program administrator to conduct an oral, recorded, telephone
call in the owner’s preferred language, and which uses plain language, confirming the disclosures
described above. The owner or their representative must provide written acknowledgement that the oral
confirmation was given. The bill also requires that the local government or program administrator
develop additional procedures to address the needs and concerns of elderly persons.
Other Encumbrances on Property
The bill prohibits a PACE loan on any residential real property where an existing loan encumbering the
property is subject to:
A negative amortization schedule;
A balloon payment; or
Pre-payment fees, other than nominal administrative costs.
Contractor Screening
The bill states that a local government or program administrator may not enroll a PACE contractor who
offers financing on residential real property unless:
The PACE contractor maintains in good standing an appropriate license from the state, if
applicable, as well as any other permits, licenses, or registrations required for engaging in its
business in the jurisdiction where it operates and maintains all state required bond and
insurance coverage.
The PACE contractor agrees, in writing, to comply with all applicable laws, including applicable
advertising and marketing laws and regulations and other requirements in the bill.
A process exists to enroll new PACE contractors, including a reasonable review of the
contractor’s:
o Relevant work or project history,
o Financial and reputational background checks, and
o Status on the Better Business Bureau or other online platforms that track contractor
reviews.
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Contractor Payment
The bill requires that, before disbursing funds to a PACE contractor for a qualifying improvement on
residential real property, the local government or program administrator must first confirm that the
applicable work or service has been completed and that the local government has determined the work
complies with applicable codes and standards, including but not limited to the Florida Building Code
and the Florida Fire Prevention Code.
The bill also prohibits disclosure of the maximum financing amount for which a residential real property
owner is eligible to the PACE contractor or to a third party engaged in soliciting assessment contracts
under the PACE program.
Marketing and Communications Guidelines
The bill requires that a local government, program administrator, or PACE contractor, or a third party
engaged in marketing on the behalf of these entities, must comply with the following marketing and
communications guidelines and may not:
Suggest or imply that:
o An assessment authorized pursuant to this section is a government assistance program;
o Qualifying improvements are free or provided at no cost, or that the financing related to
an assessment authorized pursuant to this section is a free or no cost program; or
o The financing of a qualifying improvement using the PACE program does not require the
property owner to repay the financial obligation.
Make any representation as to the tax deductibility of an assessment on residential real
property, but they may encourage a property owner to seek the advice of a tax professional
regarding tax matters related to assessments.
Unenforceable Contracts and Associated Remedies
The bill specifies that a contract to sell or install a qualifying improvement that is related to an
application for financing under a PACE program for a residential property is unenforceable, and a
PACE contractor may not begin work under such a contract, if:
The property owner would not have entered into the contract but for the belief that the qualifying
improvement or its installation would be paid under the financing agreement;
The property owner applied for, accepted, and canceled a qualifying improvement financing
agreement within the 3-day right-to-cancel period.
If a PACE contractor has initiated work on a residential property under an unenforceable contract as
determined above, the PACE contractor:
May not receive compensation for that work under the financing agreement.
Must restore the property to its original condition at no cost to the property owner.
Must immediately return any money, property, and other consideration given by the property
owner. If the property owner provided any property and the PACE contractor does not or cannot
return it, the PACE contractor must immediately return the fair market value of the property or
its value as designated in the contract, whichever is greater.
If the PACE contractor has delivered chattel35 or fixtures to the residential property pursuant to an
unenforceable contract, the PACE contractor has 90 days from the date the contract was executed to
retrieve the chattel or fixtures provided that:
The PACE contractor has fulfilled certain requirements under the bill.
The chattel and fixtures can be removed at the PACE contractor's expense without damaging
the property owner's property and practically returned.
35 “Chattel” means “A catch-all category of property mostly associated with movable goods. At common law, chattel included all
property that was not real estate and not attached to real estate. Examples included everything from leases, to cows, to clothes. In
modern usage, chattel often merely refers to tangible movable personal property.” Cornell Law School, Legal Information Institute,
https://www.law.cornell.edu/wex/chattel#:~:text=A%20catch%2Dall%20category%20of,to%20tangible%20movable%20personal%20pro
perty (last visited Apr. 17, 2021).
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The residential property owner may retain any chattel or fixtures provided pursuant to an
unenforceable contract if a PACE contractor fails to comply with these provisions.
A contract which is otherwise unenforceable remains enforceable if the residential property owner
waives his or her right to cancel the contract, allows the PACE contractor to proceed with the
installation of the qualifying improvement, and cancels the financing agreement.
Limitations and Prohibitions on Solicitation, Advertising, and Other Inducements
The bill specifies that a program administrator may not authorize a PACE contractor or third party to
advertise the availability of financing agreements or solicit property owners on behalf of the program
administrator, unless:
The PACE contractor or third party maintains the appropriate registration or certification from
the Construction Industry Licensing Board or any other permit, license, or registration required
to conduct business in the jurisdiction where it operates, and provides proof of having the
required bond and insurance coverage amounts.
The program administrator obtains the PACE contractor's or third party's written agreement that
the PACE contractor or third party will meet applicable laws and rules and qualifying
improvement program policies and procedures, including those on advertising and marketing.
A local government or program administrator may not:
Provide any direct or indirect cash payment or thing of material value to a PACE contractor in
excess of the actual price charged by that PACE contractor for the sale and installation of the
qualifying improvements that are financed by a financing agreement. However, a local
government or program administrator may provide information or services to a PACE contractor
to facilitate the installation of a qualifying improvement for a property owner.
Reimburse a PACE contractor for its expenses for advertising and marketing campaigns and
materials. A program administrator and a PACE contractor may share expenses in connection
with joint advertising and marketing campaigns and materials, if the expenses are shared on a
commercially reasonable basis.
Provide any direct cash payment or other thing of material value to a property owner explicitly
conditioned upon the property owner entering into a financing agreement. However, a program
administrator may offer programs or promotions that provide reduced fees or interest rates if the
reduced fees or interest rates are reflected in the financing agreements and are not provided to
the property owners as cash consideration.
Provide to a PACE contractor engaged in soliciting financing agreements on its behalf any
information that discloses the amount of funds for which a property owner is eligible for
qualifying improvements or the amount of equity in a property.
For residential properties, a PACE contractor may not provide a different price for a qualifying
improvement financed under this section than the PACE contractor would provide if the property owner
paid for the improvement in cash.
Annual Report
The bill requires each local government that has authorized a PACE program post an annual report on
its website by April 1 containing the following information:
The number of qualifying improvements funded.
The aggregate, average, and median dollar amounts of annual and total qualifying
improvements assessments funded.
The percentage, the number, and the dollar value of qualifying improvements assessments
represented by the category types consisting of energy efficiency, renewable energy, and wind
resistance.
The number of defaulted assessments including the total number and defaulted amount, the
number and dates of missed payments, the total number of parcels defaulted and years in
default, and the percentage of defaults by total assessments.
A summary of all reported violations of this section, including the resolution of each.
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The estimated number of jobs created.
The number and percentage of homeowners 60 years of age or older participating in a
qualifying improvement program.
B. SECTION DIRECTORY:
Section 1 Amends s. 163.08, F.S., providing for certain requirements related the property
assessed clean energy program.
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:
The bill may have an insignificant negative impact on local government expenditures as a result of
the annual report requirement.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
To the extent that a local government or program administrator does not already impose similar
consumer protection measures, the bill will benefit property owners who choose to finance qualifying
improvements through a PACE program by ensuring that property owners are fully informed as to the
key terms and potential consequences of a PACE loan and by requiring a determination that they are
capable of repaying the loan. The bill may result in fewer defaults and potential foreclosures.
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.
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B. RULE-MAKING AUTHORITY:
The bill neither mandates nor authorizes rulemaking by executive branch agencies.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On March 11, 2021, the Tourism, Infrastructure & Energy Subcommittee considered a proposed committee
substitute and reported the bill favorably as a committee substitute. The amendment:
Removed all provisions of the bill that expanded the list of qualifying improvements eligible for the
PACE program; and
Enhanced consumer protections for the PACE program.
This analysis is drafted to the committee substitute as passed 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 387 2021
1 A bill to be entitled
2 An act relating to improvements to real property;
3 amending s. 163.08, F.S.; providing and revising
4 definitions; prohibiting financing agreements for
5 qualifying improvements to fund ancillary work unless
6 specified criteria are met; prohibiting financing
7 agreements for qualifying improvements from being
8 approved unless specified criteria are met; requiring
9 the program administrator or other entity to use
10 specified information provided by the property owner
11 to determine the owner's ability to pay the annual
12 non-ad valorem assessment; providing criteria to be
13 used in making the determination; requiring the local
14 government or program administrator to develop a
15 written disclosure form to be given to property owners
16 that meets specified criteria; requiring the local
17 government or program administrator to provide a
18 printed cancellation form to and conduct an oral,
19 recorded telephone call with the property owner at a
20 specified time and containing specified information;
21 requiring the local government or program
22 administrator to develop procedures to address the
23 needs of elderly persons; specifying the total amount
24 of any non-ad valorem assessment that may be assessed
25 on properties as a result of qualifying improvements;
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26 prohibiting local governments or program
27 administrators from offering financing for certain
28 qualifying improvements if those financing agreements
29 meet certain criteria; providing criteria that must be
30 met before a local government or program administrator
31 may enroll a PACE contractor to offer financing for
32 residential properties; specifying criteria that must
33 be met before a PACE contractor may receive funds for
34 qualifying improvements on residential properties;
35 providing market and communications guidelines that
36 must be met when communicating with residential real
37 property owners; specifying the types of contracts
38 that are unenforceable and for which PACE contractors
39 may not begin work; providing procedures for the
40 return of chattel and fixtures that were installed in
41 an unenforceable contract; prohibiting PACE
42 contractors from engaging in specified activities
43 concerning PACE contractors; requiring local
44 governments that have authorized qualifying
45 improvement programs to post specified information on
46 their websites on an annual basis; providing an
47 effective date.
48
49 Be It Enacted by the Legislature of the State of Florida:
50
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51 Section 1. Section 163.08, Florida Statutes, is amended to
52 read:
53 163.08 Supplemental authority for improvements to real
54 property.—
55 (1)(a) In chapter 2008-227, Laws of Florida, the
56 Legislature amended the energy goal of the state comprehensive
57 plan to provide, in part, that the state shall reduce its energy
58 requirements through enhanced conservation and efficiency
59 measures in all end-use sectors and reduce atmospheric carbon
60 dioxide by promoting an increased use of renewable energy
61 resources. That act also declared it the public policy of the
62 state to play a leading role in developing and instituting
63 energy management programs that promote energy conservation,
64 energy security, and the reduction of greenhouse gases. In
65 addition to establishing policies to promote the use of
66 renewable energy, the Legislature provided for a schedule of
67 increases in energy performance of buildings subject to the
68 Florida Energy Efficiency Code for Building Construction. In
69 chapter 2008-191, Laws of Florida, the Legislature adopted new
70 energy conservation and greenhouse gas reduction comprehensive
71 planning requirements for local governments. In the 2008 general
72 election, the voters of this state approved a constitutional
73 amendment authorizing the Legislature, by general law, to
74 prohibit consideration of any change or improvement made for the
75 purpose of improving a property's resistance to wind damage or
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76 the installation of a renewable energy source device in the
77 determination of the assessed value of residential real
78 property.
79 (b) The Legislature finds that all energy-consuming-
80 improved properties that are not using energy conservation
81 strategies contribute to the burden affecting all improved
82 property resulting from fossil fuel energy production. Improved
83 property that has been retrofitted with energy-related
84 qualifying improvements receives the special benefit of
85 alleviating the property's burden from energy consumption. All
86 improved properties not protected from wind damage by wind
87 resistance qualifying improvements contribute to the burden
88 affecting all improved property resulting from potential wind
89 damage. Improved property that has been retrofitted with wind
90 resistance qualifying improvements receives the special benefit
91 of reducing the property's burden from potential wind damage.
92 Further, the installation and operation of qualifying
93 improvements not only benefit the affected properties for which
94 the improvements are made, but also assist in fulfilling the
95 goals of the state's energy and hurricane mitigation policies.
96 In order to make qualifying improvements more affordable and
97 assist property owners who wish to undertake such improvements,
98 the Legislature finds that there is a compelling state interest
99 in enabling property owners to voluntarily finance such
100 improvements with local government assistance.
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101 (c) The Legislature determines that the actions authorized
102 under this section, including, but not limited to, the financing
103 of qualifying improvements through the execution of financing
104 agreements and the related imposition of voluntary assessments
105 are reasonable and necessary to serve and achieve a compelling
106 state interest and are necessary for the prosperity and welfare
107 of the state and its property owners and inhabitants.
108 (2) As used in this section, the term:
109 (a) "Facility" means any portion of a building, structure,
110 or site improvement located on a site as defined in s. 202 of
111 the 2020 Florida Building Code.
112 (b) "Local government" means a county, a municipality, a
113 dependent special district as defined in s. 189.012, or a
114 separate legal entity created pursuant to s. 163.01(7).
115 (c) "PACE contractor" means an independent contractor who
116 is authorized under this section to contract with a property
117 owner to install qualifying improvements on real property and
118 who is not the owner of such property.
119 (d) "Program administrator" means a for-profit or not-for-
120 profit entity which administers a qualifying improvement program
121 on behalf and at the discretion of a local government.
122 (e)(b) "Qualifying improvement" includes any:
123 1. Energy conservation and efficiency improvement, which
124 is a measure to reduce consumption through conservation or a
125 more efficient use of electricity, natural gas, propane, or
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126 other forms of energy on the property, including, but not
127 limited to, air sealing; installation of insulation;
128 installation of energy-efficient heating, cooling, or
129 ventilation systems; building modifications to increase the use
130 of daylight; replacement of windows; installation of energy
131 controls or energy recovery systems; installation of electric
132 vehicle charging equipment; and installation of efficient
133 lighting equipment.
134 2. Renewable energy improvement, which is the installation
135 of any system in which the electrical, mechanical, or thermal
136 energy is produced from a method that uses one or more of the
137 following fuels or energy sources: hydrogen, solar energy,
138 geothermal energy, bioenergy, and wind energy.
139 3. Wind resistance improvement, which includes the
140 products and installation for, but is not limited to:
141 a. Improving the strength of the roof deck attachment;
142 b. Creating a secondary water barrier to prevent water
143 intrusion;
144 c. Installing wind-resistant shingles;
145 d. Installing gable-end bracing;
146 e. Reinforcing roof-to-wall connections;
147 f. Installing storm shutters; or
148 g. Installing opening protections.
149 (f) "Qualifying improvement program" means a program that
150 includes the financing and administration activities undertaken
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151 by a local government or program administrator for property
152 owners to purchase and install qualifying improvements on a
153 building or facility.
154 (g) "Residential property" means real property upon which
155 any of the following is located:
156 1. One single-family residential unit or one multifamily
157 structure containing one to four residential units; or
158 2. Single-family residential units such as condominiums,
159 townhouses, timeshares, mobile homes, or houses in a subdivision
160 that may be legally sold, leased, or otherwise conveyed on a
161 unit-by-unit basis, regardless of whether the units are a part
162 of a larger building or parcel containing more than four
163 residential units.
164 (3) A local government may levy non-ad valorem assessments
165 to fund qualifying improvements.
166 (4) Subject to local government ordinance or resolution, a
167 property owner may apply to the local government for funding to
168 finance a qualifying improvement and enter into a financing
169 agreement with the local government. Costs incurred by the local
170 government for such purpose may be collected as a non-ad valorem
171 assessment. A non-ad valorem assessment shall be collected
172 pursuant to s. 197.3632 and, notwithstanding s. 197.3632(8)(a),
173 shall not be subject to discount for early payment. However, the
174 notice and adoption requirements of s. 197.3632(4) do not apply
175 if this section is used and complied with, and the intent
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176 resolution, publication of notice, and mailed notices to the
177 property appraiser, tax collector, and Department of Revenue
178 required by s. 197.3632(3)(a) may be provided on or before
179 August 15 in conjunction with any non-ad valorem assessment
180 authorized by this section, if the property appraiser, tax
181 collector, and local government agree.
182 (5) Pursuant to this section or as otherwise provided by
183 law or pursuant to a local government's home rule power, a local
184 government may enter into a partnership with one or more local
185 governments for the purpose of providing and financing
186 qualifying improvements.
187 (6) A qualifying improvement program may be administered
188 by a for-profit entity or a not-for-profit organization on
189 behalf of and at the discretion of the local government.
190 (7) A local government may incur debt for the purpose of
191 providing such improvements, payable from revenues received from
192 the improved property, or any other available revenue source
193 authorized by law.
194 (8) A local government may enter into a financing
195 agreement only with the record owner of the affected property.
196 Any financing agreement entered into pursuant to this section or
197 a summary memorandum of such agreement shall be recorded in the
198 public records of the county within which the property is
199 located by the sponsoring unit of local government within 5 days
200 after execution of the agreement. The recorded agreement shall
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201 provide constructive notice that the non-ad valorem assessment
202 to be levied on the property constitutes a lien of equal dignity
203 to county taxes and assessments from the date of recordation.
204 (9) A financing agreement may not be used to fund
205 ancillary work unless the scope of the ancillary work is
206 directly related to and necessary for the installation and safe
207 operation of a qualifying improvement and the cost of the
208 ancillary work does not exceed the cost of the individual
209 qualifying improvement to which it is directly related.
210 (10)(9) A Before entering into a financing agreement for a
211 qualifying improvement may not be approved unless, the local
212 government or program administrator, as applicable, has shall
213 reasonably determined determine that:
214 (a) All property taxes and any other assessments levied on
215 the same bill as property taxes are paid and have not been
216 delinquent for the preceding 3 years or the property owner's
217 period of ownership, whichever is less; that
218 (b) There are no involuntary liens, including, but not
219 limited to, construction liens on the property; that
220 (c) No notices of default or other evidence of property-
221 based debt delinquency have been recorded during the preceding 3
222 years or the property owner's period of ownership, whichever is
223 less; and that
224 (d) The property owner is current on all mortgage debt on
225 the property and has had no more than one late payment exceeding
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226 30 days during the 12 months immediately preceding the
227 application date; The property owner is current on all mortgage
228 debt on the property.
229 (e) The holders or loan servicers of any mortgage
230 encumbering or otherwise secured by the property have received
231 the written notice required by subsection (16);
232 (f) Any property owner whose real property taxes are paid
233 through an escrow account has notified the holder of the escrow
234 account that a non-ad valorem assessment will be imposed upon
235 the property pursuant to this section;
236 (g) The term of the financing agreement does not exceed
237 the estimated useful life of the qualifying improvement. The
238 local government or program administrator, as applicable, shall
239 determine the useful life using established third-party
240 standards, including certification criteria from government
241 agencies or nationally recognized standards and testing
242 organizations;
243 (h) The property owner has acknowledged in writing the
244 disclosure statements required by paragraph (12)(b);
245 (i) For residential properties, the property owner has not
246 been subject to a bankruptcy proceeding within the last 7 years
247 unless it was discharged or dismissed more than 2 years before
248 the date that the property owner applied for funding as set
249 forth in subsection (4);
250 (j) For residential properties, the property owner is
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251 current on nonmortgage debt excluding medical debt, and has had
252 no more than one late payment exceeding 30 days during the 12
253 months immediately preceding the date that the property owner
254 applied for funding as set forth in subsection (4);
255 (k) The property is within the geographic boundaries of
256 the applicable qualifying improvement program; and
257 (l) The local government or program administrator, as
258 applicable, has asked if the property owner has obtained or
259 sought to obtain additional qualifying improvements on the same
260 property that have not yet been recorded. The failure of a
261 property owner to disclose information set forth in this
262 subsection does not invalidate a financing agreement or any
263 obligation thereunder, even if the total financed amount of the
264 qualifying improvement exceeds the amount that would otherwise
265 be authorized under subsection (15).
266
267 The existence of a prior qualifying improvement non-ad valorem
268 assessment or a prior financing agreement is not evidence that
269 the financing agreement under consideration is affordable or
270 meets other program requirements.
271 (11) In addition to obtaining the information in
272 subsection (10), and before a local government or program
273 administrator, as applicable, approves a qualifying improvement
274 on residential property, he or she must use information
275 contained in the property owner's application, reasonably
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276 reliable third-party records, or an automated verification
277 system to reasonably determine whether the property owner has
278 the ability to pay the annual non-ad valorem assessment for the
279 qualifying improvement. The local government or program
280 administrator, as applicable, must review the property owner's
281 household income, housing expenses, assets, and other debt
282 obligations. If the local government or program administrator,
283 as applicable, uses an automated verification system, it must be
284 a system that can verify the property owner's income, is not
285 based on predictive or estimation methodologies, and has been
286 determined sufficient for such verification purposes by a
287 federal mortgage lending authority or regulator. In reviewing
288 the property owner's ability to pay, the local government or
289 program administrator, as applicable:
290 (a) When determining the household income, may include the
291 income of any property owner aged 18 years old or older whose
292 name is on the property title. If a person's income is
293 considered, that person's debt obligations must also be
294 considered.
295 (b) May not consider the equity in the property that will
296 secure the non-ad valorem assessment.
297 (c) Shall determine the property owner's debt obligations
298 using reasonably reliable third-party records, including at
299 least, one consumer credit report from an agency that meets the
300 requirements of 15 U.S.C. s. 1681a(p). Debt obligations to be
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301 reviewed include:
302 1. Secured and unsecured debt.
303 2. Housing expenses. The local government or program
304 administrator, as applicable, shall make a reasonable estimate
305 of the basic housing expenses based on the number of persons in
306 the household.
307 3. Stated alimony or child support obligations.
308 (d) Shall determine whether the property owner has
309 sufficient income to pay the annual non-ad valorem assessment
310 and that he or she has sufficient residual income to meet his or
311 her household living expenses.
312 (12) Each local government or program administrator that
313 offers a qualifying improvement program must:
314 (a) Develop a written disclosure form that must be
315 provided to the property owner before he or she executes the
316 financing agreement and which contains the key terms of the
317 agreement, including:
318 1. A description of the qualifying improvement;
319 2. The total financed amount, including the cost of the
320 qualifying improvement, ancillary work, installation, program
321 fees, and prepaid interest, if any;
322 3. The annual non-ad valorem assessment process and yearly
323 payment schedule;
324 4. The amount of the annual non-ad valorem assessment;
325 5. The term of the total financed amount;
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326 6. The interest rate for the financed amount;
327 7. The annual percentage rate;
328 8. The total estimated annual costs that the residential
329 real property owner will have to pay under the assessment
330 contract, including applicable fees;
331 9. The total estimated average monthly equivalent amount
332 of funds the residential real property owner would have to save
333 in order to pay the annual costs of the non-ad valorem
334 assessment, including applicable fees; and
335 10. The estimated due date of the residential real
336 property owner's first property tax payment that includes the
337 non-ad valorem assessment.
338 (b) Include the following statements in the written
339 disclosure form, using the same order as listed in this
340 paragraph, each of which must be individually acknowledged in
341 writing by the property owner:
342 1. "I UNDERSTAND THAT IF I SELL OR REFINANCE THE PROPERTY,
343 I MAY BE REQUIRED TO PAY OFF THE OUTSTANDING FINANCED AMOUNT AS
344 A CONDITION OF THE SALE OR THE REFINANCE OF THE PROPERTY."
345
346 The previous statement must be made in at least 24-point
347 boldfaced type.
348
349 2. "I understand that the annual non-ad valorem assessment
350 will be paid when property taxes are paid and will result in a
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351 lien being placed on my property."
352 3. "I understand that the annual non-ad valorem assessment
353 will be added to my property tax bill and if I pay my property
354 taxes through my mortgage payment using an escrow account, I
355 must notify my mortgage lender."
356 4. "I understand that if I fail to pay the annual non-ad
357 valorem assessment, I may incur penalties and fees and the local
358 government could issue a tax certificate which might result in
359 the loss of my property."
360 5. "I understand that any potential utility or insurance
361 savings are not guaranteed and will not reduce the annual non-ad
362 valorem assessment or total assessment amount."
363 6. "I understand that I have 3 days to cancel the
364 financing agreement. The 3-day right expires at midnight of the
365 third business day after I sign the agreement."
366 7. "I understand that the local government, program
367 administrator, or PACE contractor do not provide tax advice and
368 that I should seek professional tax advice if I have questions
369 regarding tax credits, tax deductibility, or other tax impacts
370 of the qualifying improvement or the assessment contract.
371 8. "I understand that I cannot be assessed a penalty if I
372 prepay the outstanding financed amount."
373 (c) Provide a printed cancellation form to the property
374 owner no later than the time the property owner signs the
375 financing agreement which allows the property owner to cancel
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376 the contract, within the 3-day period specified in subparagraph
377 (b)6.
378 (d) Conduct, with at least one residential real property
379 owner or an authorized representative, an oral, recorded
380 telephone call during which time the local government or program
381 administrator, as applicable, must use plain language. The local
382 government or program administrator, as applicable, must ask the
383 residential real property owner if he or she would like to
384 communicate primarily in a language other than English and, if
385 so, must conduct the call in the owner's preferred language. A
386 local government or program administrator, as applicable may not
387 leave a voicemail to the residential real property owner to
388 satisfy this requirement. The owner or their representative must
389 provide written acknowledgement that the oral confirmation was
390 given. A local government or program administrator, as
391 applicable, as part of this telephone call, must confirm with
392 the residential real property owner:
393 1. That at least one residential real property owner has
394 access to a copy of the assessment contract and financing
395 estimates and disclosures.
396 2. The qualifying improvement that is being financed.
397 3. The total estimated annual costs that the residential
398 real property owner will have to pay under the assessment
399 contract, including applicable fees.
400 4. The total estimated average monthly equivalent amount
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401 of funds the residential real property owner would have to save
402 in order to pay the annual costs of the non-ad valorem
403 assessment, including applicable fees.
404 5. The estimated due date of the residential real property
405 owner's first property tax payment that includes the non-ad
406 valorem assessment.
407 6. The term of the assessment contract.
408 7. That payments for the assessment contract will cause
409 the residential real property owner's annual tax bill to
410 increase, that payments will be made through an additional
411 annual non-ad valorem assessment on the property, and will be
412 paid either directly to the county tax collector's office as
413 part of the total annual secured property tax bill or may be
414 paid through the residential real property owner's mortgage
415 escrow account.
416 8. That the qualifying residential property owner has
417 disclosed whether the property has received or is seeking
418 additional non-ad valorem assessments and has disclosed all
419 other assessments or special taxes that are or are about to be
420 placed on the property.
421 9. That the property will be subject to a lien during the
422 term of the assessment contract and that the obligations under
423 the contract may be required to be paid in full before the
424 residential real property owner sells or refinances the
425 property.
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426 10. That any potential utility or insurance savings are
427 not guaranteed and will not reduce the annual non-ad valorem
428 assessment or total assessment amount.
429 11. That the local government, program administrator, or
430 PACE contractor do not provide tax advice and that the
431 residential real property owner should seek professional tax
432 advice if he or she has questions regarding tax credits, tax
433 deductibility, or other tax impacts of the qualifying
434 improvement or the assessment contract.
435 (e) The local government or program administrator shall
436 develop additional procedures under this subsection to address
437 the needs and concerns of elderly persons.
438 (13)(10) A qualifying improvement shall be affixed or
439 connected to a building or facility that is part of the property
440 and shall constitute an improvement to the building or facility
441 or a fixture attached to the building or facility. An agreement
442 between a local government and a qualifying property owner may
443 not cover wind-resistance improvements in buildings or
444 facilities under new construction or construction for which a
445 certificate of occupancy or similar evidence of substantial
446 completion of new construction or improvement has not been
447 issued.
448 (14)(11) Any work requiring a license under any applicable
449 law to make or install a qualifying improvement shall be
450 performed by a contractor properly certified or registered
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451 pursuant to part I or part II of chapter 489.
452 (15)(12)(a) Without the consent of the holders or loan
453 servicers of any mortgage encumbering or otherwise secured by
454 the property, The total amount of any non-ad valorem assessment
455 for a property under this section may not exceed 20 percent of
456 the fair market value of the property just value of the property
457 as determined by the county property appraiser. In addition, the
458 total of any non-ad valorem assessments plus any mortgage-
459 related debt on the property may not exceed 97 percent of the
460 fair market value of the property. The fair market value of the
461 property shall be derived using any methodology commonly used in
462 the real estate finance industry.
463 (b) Notwithstanding paragraph (a), a non-ad valorem
464 assessment for a qualifying improvement defined in subparagraph
465 (2)(b)1. or subparagraph (2)(b)2. that is supported by an energy
466 audit is not subject to the limits in this subsection if the
467 audit demonstrates that the annual energy savings from the
468 qualified improvement equals or exceeds the annual repayment
469 amount of the non-ad valorem assessment.
470 (16)(13) At least 30 days before entering into a financing
471 agreement, the property owner shall provide to the holders or
472 loan servicers of any existing mortgages encumbering or
473 otherwise secured by the property a notice of the owner's intent
474 to enter into a financing agreement together with the maximum
475 principal amount to be financed and the maximum annual
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476 assessment necessary to repay that amount. A verified copy or
477 other proof of such notice shall be provided to the local
478 government or program administrator, as applicable. A provision
479 in any agreement between the a mortgagee or other lienholder and
480 a property owner, or otherwise now or hereafter binding upon a
481 property owner, which allows for acceleration of payment of the
482 mortgage, note, or lien or other unilateral modification solely
483 as a result of entering into a financing agreement as provided
484 for in this section is not enforceable. This subsection does not
485 limit the authority of the holder or loan servicer to increase
486 the required monthly escrow by an amount necessary to annually
487 pay the qualifying improvement assessment.
488 (17)(14) At or before the time a purchaser executes a
489 contract for the sale and purchase of any property for which a
490 non-ad valorem assessment has been levied under this section and
491 has an unpaid balance due, the seller shall give the prospective
492 purchaser a written disclosure statement in the following form,
493 which shall be set forth in the contract or in a separate
494 writing:
495
496 QUALIFYING IMPROVEMENTS FOR ENERGY EFFICIENCY, RENEWABLE ENERGY,
497 OR WIND RESISTANCE.—The property being purchased is located
498 within the jurisdiction of a local government that has placed an
499 non-ad valorem assessment on the property pursuant to s. 163.08,
500 Florida Statutes. The non-ad valorem assessment is for a
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501 qualifying improvement to the property relating to energy
502 efficiency, renewable energy, or wind resistance, and is not
503 based on the value of property. You are encouraged to contact
504 the county property appraiser's office to learn more about this
505 and other assessments that may be provided by law.
506 (18)(15) A provision in any agreement between a local
507 government and a public or private power or energy provider or
508 other utility provider is not enforceable to limit or prohibit
509 any local government from exercising its authority under this
510 section.
511 (19)(16) This section is additional and supplemental to
512 county and municipal home rule authority and not in derogation
513 of such authority or a limitation upon such authority.
514 (20) A local government or program administrator, as
515 applicable, may not offer financing for an qualifying
516 improvement authorized pursuant to this section on any
517 residential real property that includes any of the following:
518 (a) A negative amortization schedule;
519 (b) A balloon payment; or
520 (c) Pre-payment fees, other than nominal administrative
521 costs.
522 (21) For residential real property, a local government or
523 program administrator, as applicable:
524 (a) May not enroll a PACE contractor who offers financing
525 on residential real property unless:
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526 1. The local government or program administrator, as
527 applicable, determines that the PACE contractor maintains in
528 good standing an appropriate license from the state, if
529 applicable, as well as any other permits, licenses, or
530 registrations required for engaging in its business in the
531 jurisdiction where it operates and maintains all state required
532 bond and insurance coverage.
533 2. A local government or program administrator, as
534 applicable, obtains the PACE contractor's written agreement that
535 the PACE contractor will comply with all applicable laws,
536 including applicable advertising and marketing laws and
537 regulations and the requirements of subsection (23).
538 (b) Must maintain a process to enroll new PACE contractors
539 that includes reasonable review of the following for each
540 contractor:
541 1. Relevant work or project history.
542 2. Financial and reputational background checks.
543 3. The contractor's status on the Better Business Bureau
544 platform or other online platforms that track contractor
545 reviews.
546 (22)(a) Before disbursing funds to a PACE contractor for a
547 qualifying improvement on residential real property, the local
548 government or program administrator, as applicable, must first
549 confirm that the applicable work or service has been completed
550 and the local government has determined the work complies with
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551 applicable codes and standards, including, but not limited to,
552 the Florida Building Code and the Florida Fire Prevention Code.
553 (b) A local government or program administrator, as
554 applicable, may not disclose the maximum financing amount for
555 which a residential real property owner is eligible to a PACE
556 contractor or to a third party engaged in soliciting assessment
557 contracts financed pursuant to this section.
558 (23) When communicating with residential real property
559 owners, a local government, program administrator, PACE
560 contractor, or a third party engaged in marketing on behalf of
561 these entities, must comply with the following marketing and
562 communications guidelines and may not:
563 (a) Suggest or imply:
564 1. That a non-ad valorem assessment authorized under this
565 section is a government assistance program;
566 2. That qualifying improvements are free or provided at no
567 cost, or that the financing related to an non-ad valorem
568 assessment authorized under this section is free or provided at
569 no cost; or
570 3. That the financing of a qualifying improvement using
571 the program authorized pursuant to this section does not require
572 the property owner to repay the financial obligation.
573 (b) Make any representation as to the tax deductibility of
574 a non-ad valorem assessment on residential real property. A
575 local government, program administrator, or PACE contractor, or
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576 a third party engaged in marketing on behalf of these entities,
577 may encourage a property owner to seek the advice of a tax
578 professional regarding tax matters related to assessments.
579 (24)(a) A contract to sell or install a qualifying
580 improvement that is related to an application for financing in a
581 qualifying improvement program for a residential property is
582 unenforceable and a PACE contractor may not begin work under
583 such a contract if:
584 1. The property owner would not have entered into the
585 contract but for the belief that the qualifying improvement or
586 its installation would be paid under the financing agreement; or
587 2. The property owner applied for, accepted, and canceled
588 a qualifying improvement financing agreement within the 3-day
589 right-to-cancel period set forth in subparagraph (12)(b)6.
590 (b) If a PACE contractor has initiated work on a
591 residential property under an unenforceable contract as
592 determined under paragraph (a), the PACE contractor:
593 1. May not receive compensation for that work under the
594 financing agreement.
595 2. Shall restore the property to its original condition at
596 no cost to the property owner.
597 3. Shall immediately return any money, property, and other
598 consideration given by the property owner. If the property owner
599 provided any property and the PACE contractor does not or cannot
600 return it, the PACE contractor shall immediately return the fair
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601 market value of the property or its value as designated in the
602 contract, whichever is greater.
603 (c) If the PACE contractor has delivered chattel or
604 fixtures to the residential property pursuant to an
605 unenforceable contract, the PACE contractor shall have 90 days
606 from the date the contract was executed to retrieve the chattel
607 or fixtures provided that:
608 1. The PACE contractor has fulfilled the requirements of
609 subparagraphs (b)2. and 3.
610 2. The chattel and fixtures can be removed at the PACE
611 contractor's expense without damaging the property owner's
612 property and practically returned.
613 (d) The residential property owner may retain any chattel
614 or fixtures provided pursuant to an unenforceable contract if a
615 PACE contractor fails to comply with the provisions of this
616 subsection.
617 (e) A contract which is otherwise unenforceable under this
618 subsection remains enforceable if the residential property owner
619 waives his or her right to cancel the contract, allows the PACE
620 contractor to proceed with the installation of the qualifying
621 improvement, and cancels the financing agreement.
622 (25)(a) A PACE contractor or third party may not advertise
623 the availability of financing agreements or solicit property
624 owners on behalf of the local government or program
625 administrator unless:
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626 1. The PACE contractor or third party maintains the
627 appropriate registration or certification from the Construction
628 Industry Licensing Board or any other permit, license, or
629 registration required to conduct business in the jurisdiction
630 where it operates, and provides proof of having the required
631 bond and insurance coverage amounts.
632 2. The local government or program administrator, as
633 applicable, obtains the PACE contractor's or third party's
634 written agreement that the PACE contractor or third party will
635 meet applicable laws and rules and qualifying improvement
636 program policies and procedures, including those on advertising
637 and marketing.
638 (b) A local government or program administrator may not
639 provide any direct or indirect cash payment or thing of material
640 value to a PACE contractor or third party in excess of the
641 actual price charged by that PACE contractor for the sale and
642 installation of the qualifying improvements that are financed by
643 a financing agreement. However, a program administrator may
644 provide information or services to a PACE contractor to
645 facilitate the installation of a qualifying improvement for a
646 property owner.
647 (c) A local government or program administrator may not
648 reimburse a PACE contractor or third party for its expenses in
649 advertising and marketing campaigns and materials. A local
650 government or program administrator, as applicable, and a PACE
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651 contractor may share expenses in connection with joint
652 advertising and marketing campaigns and materials, if the
653 expenses are shared on a commercially reasonable basis.
654 (d) A local government or program administrator may not
655 provide to a PACE contractor engaged in soliciting financing
656 agreements on its behalf any information that discloses the
657 amount of funds for which a property owner is eligible for
658 qualifying improvements or the amount of equity in a property.
659 (e) For residential properties, a PACE contractor may not
660 provide a different price for a qualifying improvement financed
661 under this section than the PACE contractor would provide if the
662 property owner paid for the improvement in cash.
663 (f) A program administrator may not provide any direct
664 cash payment or other thing of material value to a property
665 owner explicitly conditioned upon the property owner entering
666 into a financing agreement. However, a program administrator may
667 offer programs or promotions that provide reduced fees or
668 interest rates if the reduced fees or interest rates are
669 reflected in the financing agreements and are not provided to
670 the property owners as cash consideration.
671 (26) Each local government that has authorized a
672 qualifying improvement program shall post on its website an
673 annual report for the period ending December 31 each year
674 containing the following information:
675 (a) The number of qualifying improvements funded.
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676 (b) The aggregate, average, and median dollar amounts of
677 annual and total number of assessments that funded qualifying
678 improvements.
679 (c) The percentage, the number, and the dollar value of
680 assessments that funded qualifying improvements, represented by
681 the category types consisting of energy efficiency, renewable
682 energy, and wind resistance.
683 (d) The number of defaulted assessments including the
684 total number and defaulted amount, the number and dates of
685 missed payments, the total number of parcels defaulted and years
686 in default, and the percentage of defaults by total assessments.
687 (e) A summary of all reported violations of this section,
688 including the resolution of each.
689 (f) Estimated number of jobs created.
690 (g) The number and percentage of homeowners 60 years of
691 age or older participating in a qualifying improvement program.
692
693 This report shall be posted no later than April 1 of the year
694 following the calendar year covered by the report.
695 Section 2. This act shall take effect July 1, 2021.
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CS/HB 605
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 605 Bicycle and Pedestrian Safety
SPONSOR(S): Tourism, Infrastructure & Energy Subcommittee, Hunschofsky and others
TIED BILLS: IDEN./SIM. BILLS: CS/SB 950
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Tourism, Infrastructure & Energy Subcommittee 14 Y, 0 N, As CS Johnson Keating
2) Infrastructure & Tourism Appropriations 11 Y, 0 N Hicks Davis
Subcommittee
3) Commerce Committee Johnson Hamon
SUMMARY ANALYSIS
The bill addresses issues relating to bicycle and pedestrian safety. In summary, the bill:
Defines the terms “bicycle lane” and “separated bicycle lane.”
Provides requirements for a vehicle overtaking a bicycle or other nonmotorized vehicle, an electric
bicycle, or a pedestrian occupying the same travel lane.
Requires the Department of Highway Safety and Motor Vehicles (DHSMV) to annually provide an
awareness and safety campaign regarding vehicles overtaking a bicycle, other nonmotorized vehicle,
an electric bicycle, or a pedestrian.
Provides that no-passing zones do not apply to drivers who safely and briefly drive to the left of center
of the roadway to overtake a bicycle, other nonmotorized vehicle, an electric bicycle, or a pedestrian.
Requires a vehicle making a right turn while overtaking and passing a bicycle proceeding in the same
direction, to do so only if the bicycle is at least 20 feet from the intersection.
Provides guidelines for riding a bicycle in a substandard-width lane and authorizes riders to ride two
abreast if certain conditions exit.
Authorizes bicyclists riding in groups, after coming to a full stop, to go through an intersection in groups
of 10 or fewer.
Requires at least 25 questions in the test bank for the driver license test to address bicycle and
pedestrian safety.
The bill will have an indeterminate but likely insignificant fiscal impact to state government revenues and
expenditures. The bill does not appear to impact local government revenues or expenditures. See Fiscal
Analysis section 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.
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Definitions
Current Situation
Florida law defines the term “bicycle” as every vehicle1 propelled solely by human power, having two
tandem wheels, and including any device generally recognized as a bicycle though equipped with two
front or two rear wheels. The term does not include a scooter or similar device.2
Florida law defines the term “electric bicycle” as a bicycle or tricycle equipped with fully operable
pedals, a seat or saddle for the use of the rider, and an electric motor of less than 750 watts which
meets the requirements of one of the following three classifications:
“Class 1 electric bicycle” means an electric bicycle equipped with a motor that provides
assistance only when the rider is pedaling and that ceases to provide assistance when the
electric bicycle reaches the speed of 20 miles per hour.
“Class 2 electric bicycle” means an electric bicycle equipped with a motor that may be used
exclusively to propel the electric bicycle and that ceases to provide assistance when the electric
bicycle reaches the speed of 20 miles per hour.
“Class 3 electric bicycle” means an electric bicycle equipped with a motor that provides
assistance only when the rider is pedaling and that ceases to provide assistance when the
electric bicycle reaches the speed of 28 miles per hour.3
An electric bicycle is subject to the same rules and regulations applicable to a bicycle.4
Florida law does not define the terms “bicycle lane” or “separated bicycle lane.”
Effect of the Bill
The bill defines the term “bicycle lane” as any portion of a roadway or highway which is designated by
pavement markings and signs for preferential or exclusive use by bicycles.
The bill defines the term “separated bicycle lane” as a bicycle lane that is separated from motor vehicle
traffic by a physical barrier.
Overtaking or Passing a Vehicle
Current Situation
Under Florida law, the driver of a vehicle overtaking another vehicle proceeding in the same direction
must give an appropriate signal,5 must pass to the left of the vehicle at a safe distance, and may not
again drive to the right side of the roadway until he or she is safely clear of the overtaken vehicle. A
driver overtaking a bicycle or other nonmotorized vehicle,6 or an electric bicycle, must pass the bicycle,
other nonmotorized vehicle, or electric bicycle at a safe distance of not less than three feet between the
vehicle and the bicycle, other nonmotorized vehicle, or electric bicycle.7 A violation is a noncriminal
1 S. 316.003(103), F.S., defines the term “vehicle” as every device in, upon, or by which any person or property is or may be
transported or drawn upon a highway, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary
rails or tracks.
2 S. 316.003(4), F.S.
3 S. 316.003(22), F.S.
4 S. 316.20655(1), F.S.
5 Signals are provided for in s. 316.156, F.S.
6 The term “other nonmotorized vehicle” is not defined in ch. 316, F.S.
7 S. 316.083(1), F.S.
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traffic infraction, punishable as a moving violation as provided in chapter 318, F.S.8 The statutory base
fine is $60,9 but with additional fees and surcharges, the total fine is up to $158.10
Effect of the Bill
The bill provides that the driver of a vehicle overtaking a bicycle or other nonmotorized vehicle, electric
bicycle, or pedestrian occupying the same travel lane must pass the bicycle, other nonmotorized
vehicle, electric bicycle or pedestrian at a safe distance of not less than three feet, or if such movement
cannot be safely accomplished, must remain at a safe distance behind the bicycle or other
nonmotorized vehicle, electric bicycle, or pedestrian until the driver can safely pass at a distance of not
less than three feet and must safely clear the overtaken bicycle, other nonmotorized vehicle, electric
bicycle or pedestrian.
The provisions relating to overtaking bicycles, other nonmotorized vehicles, electric bicycles, do not
apply when the bicycle, other nonmotorized vehicle, or electric bicycle occupies a separated bicycle
lane. A violation is a noncriminal traffic infraction, punishable as a moving violation as provided in
chapter 318, F.S. The statutory base fine is $60,11 but with additional fees and surcharges, the total fine
is up to $158.12
Pedestrian and Bicycle Safety Efforts
Current Situation
The Department of Highway Safety and Motor Vehicles (DSHMV) works to promote traffic safety and
educate citizens on traffic laws and regulations that protect the safety of pedestrians and bicyclists. In
addition to partnering with the Department of Transportation (DOT), Florida’s Pedestrian and Bicycle
Safety Coalition, and Alert Today Florida on education and outreach efforts, DSHMV incorporates
safety messages into its driver education materials and its communications and outreach efforts.13
Each May, DHSMV leads the Share the Road campaign, which works to educate individuals on bicycle
and pedestrian safety and educates motorists on the importance of sharing the road with all road users.
The 2019 Share the Road campaign utilized billboards, online ads, and internet radio advertisements.14
Current law provides for the examination of applicants for various classes of driver licenses. For an
applicant for a noncommercial driver license, the examination must include a test of the applicant's
ability to read and understand highway signs regulating, warning, and directing traffic and his or her
knowledge of the state’s traffic laws, including laws related to driving under the influence of alcohol or
controlled substances.15 However, there is no requirement that the driver license test contain questions
regarding bicycle and pedestrian safety.
Currently, the driver license exam consists of up to 50 questions. There are 309 questions in DSHMV’s
test bank, with 18 questions specific to pedestrian and bicyclist safety. Whether or not an applicant will
see a bicycle or pedestrian question on the test depends on the number of questions within that
category, the number of questions pulled from a category, and how many questions a customer sees
while taking the test.16,17
Effect of the Bill
8 S. 316.083(3), F.S. Chapter 318, F.S., relates to the disposition of traffic infractions.
9 S. 318.18(3)(a), F.S.
10 Florida Clerk of Courts, 2020 Distribution Schedule, p. 23, available at:
https://cdn.ymaws.com/www.flclerks.com/resource/resmgr/advisories/advisories_2021/21bull005_Attach_2_2020_Dist.pdf (last visited
Feb. 8, 2021).
11 S. 318.18(3)(a), F.S.
12 Florida Clerk of Courts, 2020 Distribution Schedule, p. 23.
13 Department of Highway Safety and Motor Vehicles, Agency Analysis of 2020 House Bill 950, p. 3. (Mar. 9, 2021).
14 Id.
15 S. 322.12(3), F.S.
16 The test has a quick pass/quick fail delivery; a customer passes after answering 40 questions correctly and fails after answering 11
questions incorrectly.
17 Department of Highway Safety and Motor Vehicles, Agency Analysis of 2021 House Bill 950, p. 4. (Mar. 9, 2021).
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The bill requires DHSMV to provide an annual awareness and safety campaign informing the motoring
public about the safety precautions that must be taken when overtaking a bicycle, other nonmotorized
vehicle, electric bicycle, or pedestrian.
The bill requires 25 questions in DHSMV’s test bank for a noncommercial driver license applicant to
address bicycle and pedestrian safety.
No Passing Zones
Current Situation
Section 316.0875, F.S., authorizes DOT and local authorities18 to determine those portions of any
highway under their respective jurisdiction where overtaking and passing or driving to the left of the
center of the roadway would be especially hazardous and may, by appropriate signs or markings on the
roadway, indicate the beginning and end of such zones. When such signs or markings are in place and
clearly visible to an ordinarily observant person, every driver of a vehicle must obey those directions.19
Where signs or markings define a no-passing zone, a driver may not drive on the left side of the
roadway with the no-passing zone or on the left side of any pavement striping designed to mark such
no-passing zone throughout its length.20
Section 316.0875, F.S., does not apply when an obstruction exists making it necessary to drive to the
left of the center of the highway, nor to the driver of a vehicle turning left into or from an alley, private
road, or driveway.21
Effect of the Bill
The bill provides that s. 316.0875, F.S., does not apply to the driver of a vehicle overtaking or passing a
bicycle, other nonmotorized vehicle, electric bicycle, or pedestrian occupying the same travel lane.
Required Method for Turning at Intersections
Current Situation
Current law provides that the driver of a vehicle intending to make a right turn must make both the
approach for the right turn and the right turn as close as practicable to the right-hand curb or edge of
the roadway.22
A violation of s. 316.151, F.S., is a noncriminal traffic infraction, punishable as a moving violation as
provided in chapter 318, F.S.23 The statutory base fine is $60,24 but with additional fees and
surcharges, the total fine is up to $158.25
Effect of the Bill
The bill requires that the driver of a vehicle intending to turn right at an intersection, when overtaking or
passing a bicycle proceeding in the same direction, must give an appropriate signal and make the right
turn only if the bicycle is at least 20 feet from the intersection.
Bicycle Regulations
Current Situation
18 S. 316.003(36), F.S., defines the term “local authorities” as all officers and public officials of the several counties and municipalities of
this state.
19 S. 316.0875(1), F.S.
20 S. 316.0875(2), F.S.
21 S. 316.0875(3), F.S.
22 S. 316.151(1)(a), F.S.
23 S. 316.151(3), F.S.
24 S. 318.18(3)(a), F.S.
25 Florida Clerk of Courts, 2020 Distribution Schedule, p. 23.
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Chapter 316, F.S., is the Florida Uniform Traffic Control Law,26 which is designed for the state to have
uniform traffic laws throughout the state and its counties, and uniform traffic ordinances in all
municipalities.27
Under Florida law, every person propelling a vehicle by human power has all of the rights and all of the
duties applicable to the driver of any other vehicle under the law except as to special regulations in the
Florida Uniform Traffic Control Law and except as to provisions of the law which by their nature can
have no application.28 Additionally, an electric bicycle is subject to the same rules and regulations
afforded a bicycle, including s. 316.2065, F.S., relating to bicycle regulation.29
Any person operating a bicycle upon a roadway at less than the normal speed of traffic at the time and
place and under the conditions then existing must ride in the lane marked for bicycle use or, if no lane
is marked for bicycle use, as close as practicable to the right-hand curb or edge of the roadway except
under any of the following situations:
When overtaking and passing another bicycle or vehicle proceeding in the same direction.
When preparing for a left turn at an intersection or into a private road or driveway.
When reasonably necessary to avoid any condition or potential conflict, including, but not limited
to, a fixed or moving object, parked or moving vehicle, bicycle, pedestrian, animal, surface
hazard, turn lane, or substandard-width lane,30 which makes it unsafe to continue along the
right-hand curb or edge or within a bicycle lane.31
Any person operating a bicycle upon a one-way highway with two or more marked traffic lanes may ride
as near the left-hand curb or edge of such roadway as practicable.32
Persons riding bicycles upon a roadway may not ride more than two abreast except on paths or parts of
roadways set aside for the exclusive use of bicycles. Persons riding two abreast may not impede traffic
when traveling at less than the normal speed of traffic at the time and place and under the conditions
then existing and must ride within a single lane.33
Except as otherwise provided in s. 316.2065, F.S., a violation of s. 316.2065, F.S., is a noncriminal
traffic infraction, punishable as a pedestrian violation as provided in ch. 318, F.S.34 The base fine is
$15,35 but with additional fees and surcharges, the total fine is up to $56.60.36
Effect of the Bill
The bill provides that on roads that contain a substandard width lane, persons riding a bicycle must ride
single file to maintain a minimum of three feet of space for vehicles to pass persons operating a bicycle.
The bill prohibits persons riding bicycles in a bike lane from riding more than two abreast. However,
persons riding a bicycle may ride two abreast if both can stay within the bicycle lane. If the bicycle lane
is too narrow to allow two persons riding a bicycle to ride two abreast, the persons must ride single file
and within the bicycle lane. On roads that contain a substandard width lane, persons riding a bicycle
may temporarily ride two abreast only to avoid hazards in the roadway or to overtake another person
riding a bicycle.
The bill also provides that when stopping at a stop sign, persons riding bicycles in groups, after coming
to a full stop and obeying all traffic laws, may proceed through the stop sign in a group of 10 or fewer at
26 S. 316.001, F.S.
27 S. 316.002, F.S.
28 S. 316.2065(1), F.S.
29 S. 316.20655(1), F.S.
30 For the purposes of s. 316.2065(5), F.S., the term “substandard-width lane” means a lane that is too narrow for a bicycle and another
vehicle to travel safely side by side within the lane.
31 S. 316.2065(5)(a), F.S.
32 S. 316.2065(5)(b), F.S.
33 S. 316.2065(6), F.S.
34 S. 316.2065(19), F.S.
35 S. 318.18(1), F.S.
36 Florida Clerk of Courts, 2020 Distribution Schedule, p. 21.
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a time. Motor vehicle operators must allow each such group to travel through the intersection before
moving forward. However, the bill does not specify how, such as single file, the groups of bicyclists may
travel through an intersection.37
A violation of this provision would be a noncriminal traffic infraction, punishable as a pedestrian
violation. The base fine is $15,38 but with additional fees and surcharges, the total fine is up to $56.50.39
Conforming Changes
The bill also amends ss. 212.05, 316.306, and 655.960, F.S., conforming cross-references.
Effective Date
The bill has an effective date of July 1, 2021.
B. SECTION DIRECTORY:
Section 1: Amends s. 316.003, F.S., providing definitions.
Section 2: Amends s. 316.083, F.S., relating to overtaking and passing a vehicle, a bicycle, or other
nonmotorized vehicle, an electric bicycle, or a pedestrian.
Section 3: Amends s. 316.0875, F.S., relating to no-passing zones.
Section 4: Amends s. 316.151, F.S., relating to required position and method of turning at
intersections.
Section 5: Amends s. 316.2065, F.S., relating to bicycle regulations.
Section 6: Amends s. 322.12, F.S. relating to the examination of applicants.
Sections 7-9: Amend ss. 212.05, 316.306, and 655.960, F.S., conforming cross-references.
Section 10: Provides an effective date of July 1, 2021.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
There would be a positive indeterminate, but insignificant, impact to state revenues as a result of
expanding the overtaking and passing violation provisions to include pedestrians, and a new
requirement to keep a safe distance behind bicycles, nonmotorized vehicles and pedestrians until a
driver can safely pass. These are considered noncriminal traffic infraction, punishable as moving
violations. The bill also expands violations relating to bicycle riders riding two abreast. This is
considered a noncriminal pedestrian violation.
However, the bill also expands the exceptions to a current violation for overtaking and passing a
bicycle and other types of vehicles and pedestrians in a no-passing zone; a noncriminal traffic
infraction, punishable as a moving violation. This would have a negative indeterminate, but
insignificant, impact to state revenues.
2. Expenditures:
37 Department of Highway Safety and Motor Vehicles, Agency Analysis of 2021 Senate Bill 950. p. 4. (Mar. 9, 2021).
38 S. 318.318(1), F.S.
39 Florida Clerk of Courts, 2020 Distribution Schedule, p. 21.
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The bill appears to have an insignificant negative impact on state government expenditures.
DHSMV will incur expenditures associated with redesigning its driver license test banks to provide
that at least 25 questions in the test bank address bicycle and pedestrian safety. This cost can be
absorbed within existing resources.40
According to DHSMV, there are no costs associated with the implementation of the annual
awareness and safety campaign that cannot be absorbed within existing resources.41 DHSMV
currently promotes traffic safety and educates citizens on traffic laws and regulations that protect
the safety of pedestrians and bicyclists through partnerships with DOT, Florida’s Pedestrian and
Bicycle Safety Coalition, and Alert Today Florida.
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 require counties or municipalities to spend funds or take
action requiring the expenditure of funds; reduce the authority that counties or municipalities have to
raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill does not provide a grant of rulemaking, nor does it require rulemaking.
C. DRAFTING ISSUES OR OTHER COMMENTS:
The bill requires the driver of a vehicle to remain at a safe distance behind a pedestrian until the driver
can safely vacate the lane. This language is appropriate for bicycles, other nonmotorized vehicles, and
electric bicycles, which are required to travel in the same direction as vehicle traffic. However, Florida
law requires pedestrians to walk facing traffic on the left side of the roadway, which would prevent the
driver of a vehicle from remaining a safe distance behind a pedestrian as the bill requires.42
40 Department of Highway Safety and Motor Vehicles, Agency Analysis of 2021 Senate Bill 950. p. 4. (Mar. 9, 2021).
41 Email from Susan Carey, Chief Financial Officer, Florida Department of Highway Safety and Motor Vehicles, RE: CS/HB 605, March
25, 2021.
42 Id. at 6.
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The bill allows a vehicle to make a right turn at an intersection and pass a bicyclist only if the bicyclist is
at least 20 feet from the intersection. However, depending on the speed of the bicycle and the speed of
the vehicle turning, this may or may not be an appropriate distance for the vehicle to complete its turn
without affecting the bicyclist and potentially causing a crash.43
The bill provides that “when stopping at a stop sign, persons riding bicycles in groups, after coming to a
full stop and obeying all traffic laws, may proceed through the stop sign in a group of 10 or fewer at a
time.” Motor vehicle operators must allow each such group to travel through the intersection before
moving forward.” As the bill is drafted, it is unclear whether “each such group” refers to a single group
of 10 bicyclists or more than one group of 10 bicyclists.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On March 22, 2021, the Tourism, Infrastructure & Energy adopted two amendments and reported the bill
favorably as a committee substitute. In summary, the committee substitute:
Clarifies that when overtaking a bicycle, other motorized vehicle, electric bicycle, or pedestrian on
the road, a vehicle must pass at a safe distance of not less than three feet from the bicycle, other
motorized vehicle, electric bicycle, or pedestrian.
Requires the Department of Highway Safety and Motor Vehicles to annually conduct a bicycle and
pedestrian safety and awareness campaign.
Requires persons riding bicycles to ride single-file in substandard width lanes.
Authorizes persons riding bicycles to ride two abreast in a bicycle lane, if both are able to remain
within the bicycle lane.
Requires persons riding bicycles to ride single-file in a bicycle lane if the bicycle lane is not wide
enough to ride two abreast.
Authorizes persons riding bicycles to temporarily ride two abreast to avoid hazards or to overtake
another bicyclist.
Removes the requirement that 20 percent of the questions on the driver license test be related to
bicycle and pedestrian safety, and replaces it with a requirement that a minimum of 25 questions in
the test bank be related to bicycle and pedestrian safety.
This analysis is drafted to the committee substitute as approved by the Tourism, Infrastructure & Energy
Subcommittee.
43 Id.
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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 605 2021
1 A bill to be entitled
2 An act relating to bicycle and pedestrian safety;
3 amending s. 316.003, F.S.; defining the terms "bicycle
4 lane" and "separated bicycle lane"; amending s.
5 316.083, F.S.; revising and providing requirements for
6 the driver of a motor vehicle overtaking a bicycle or
7 other nonmotorized vehicle, an electric bicycle, or a
8 pedestrian; providing exceptions; providing a penalty;
9 requiring the Department of Highway Safety and Motor
10 Vehicles to provide an annual awareness and safety
11 campaign regarding certain safety precautions;
12 amending s. 316.0875, F.S.; exempting a motor vehicle
13 driver from certain provisions relating to no-passing
14 zones when overtaking a bicycle or other nonmotorized
15 vehicle, an electric bicycle, or a pedestrian; making
16 a technical change; amending s. 316.151, F.S.;
17 revising requirements for vehicles turning at
18 intersections; providing turn signaling and distance
19 requirements for a motor vehicle driver when
20 overtaking and passing a bicycle; making a technical
21 change; amending s. 316.2065, F.S.; providing
22 requirements for persons riding bicycles on a
23 substandard-width lane; prohibiting persons riding
24 bicycles in a bicycle lane from riding more than two
25 abreast; providing requirements for riding in a
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26 bicycle lane; providing requirements for persons
27 riding bicycles in groups when stopping at a stop
28 sign; making a technical change; amending s. 322.12,
29 F.S.; requiring a minimum number of questions in the
30 test bank for a Class E driver license to address
31 bicycle and pedestrian safety; amending ss. 212.05,
32 316.306, and 655.960, F.S.; conforming cross-
33 references; providing an effective date.
34
35 Be It Enacted by the Legislature of the State of Florida:
36
37 Section 1. Present subsections (5) through (76) and (77)
38 through (105) of section 316.003, Florida Statutes, are
39 redesignated as subsections (6) through (77) and (79) through
40 (107), respectively, new subsections (5) and (78) are added to
41 that section, and present subsection (62) of that section is
42 amended, to read:
43 316.003 Definitions.—The following words and phrases, when
44 used in this chapter, shall have the meanings respectively
45 ascribed to them in this section, except where the context
46 otherwise requires:
47 (5) BICYCLE LANE.—Any portion of a roadway or highway
48 which is designated by pavement markings and signs for
49 preferential or exclusive use by bicycles.
50 (63)(62) PRIVATE ROAD OR DRIVEWAY.—Except as otherwise
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51 provided in paragraph (86)(b) (84)(b), any privately owned way
52 or place used for vehicular travel by the owner and those having
53 express or implied permission from the owner, but not by other
54 persons.
55 (78) SEPARATED BICYCLE LANE.—A bicycle lane that is
56 separated from motor vehicle traffic by a physical barrier.
57 Section 2. Section 316.083, Florida Statutes, is amended
58 to read:
59 316.083 Overtaking and passing a vehicle, a bicycle or
60 other nonmotorized vehicle, an electric bicycle, or a
61 pedestrian.—The following rules shall govern the overtaking and
62 passing of vehicles, bicycles and other nonmotorized vehicles,
63 electric bicycles, and pedestrians proceeding in the same
64 direction, subject to those limitations, exceptions, and special
65 rules hereinafter stated:
66 (1) The driver of a vehicle overtaking another vehicle
67 proceeding in the same direction must shall give an appropriate
68 signal as provided for in s. 316.156, must shall pass to the
69 left thereof at a safe distance, and must shall not again drive
70 to the right side of the roadway until safely clear of the
71 overtaken vehicle.
72 (2) The driver of a vehicle overtaking a bicycle or other
73 nonmotorized vehicle, an electric bicycle, or a pedestrian
74 occupying the same travel lane must pass the bicycle or other
75 nonmotorized vehicle, electric bicycle, or pedestrian at a safe
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76 distance of not less than 3 feet or, if such movement cannot be
77 safely accomplished, must remain at a safe distance behind the
78 bicycle or other nonmotorized vehicle, electric bicycle, or
79 pedestrian until the driver can safely pass at a distance of not
80 less than 3 feet and must safely clear the overtaken bicycle or
81 other nonmotorized vehicle, electric bicycle, or pedestrian.
82 (3) The driver of a vehicle overtaking a bicycle or other
83 nonmotorized vehicle, or an electric bicycle, occupying a
84 bicycle lane must pass the bicycle, other nonmotorized vehicle,
85 or electric bicycle at a safe distance of not less than 3 feet
86 between the vehicle and the bicycle, other nonmotorized vehicle,
87 or electric bicycle.
88 (4) Subsections (2) and (3) do not apply when a bicycle or
89 other nonmotorized vehicle, or an electric bicycle, occupies a
90 separated bicycle lane.
91 (5)(2) Except when overtaking and passing on the right is
92 permitted, the driver of an overtaken vehicle must shall give
93 way to the right in favor of the overtaking vehicle, on audible
94 signal or upon the visible blinking of the headlamps of the
95 overtaking vehicle if such overtaking is being attempted at
96 nighttime, and must shall not increase the speed of his or her
97 vehicle until completely passed by the overtaking vehicle.
98 (6)(3) A person who violates violation of this section
99 commits is a noncriminal traffic infraction, punishable as a
100 moving violation as provided in chapter 318.
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101 (7) The department must provide an annual awareness and
102 safety campaign informing the public about the safety
103 precautions to be taken when overtaking a bicycle or other
104 nonmotorized vehicle, an electric bicycle, or a pedestrian.
105 Section 3. Section 316.0875, Florida Statutes, is amended
106 to read:
107 316.0875 No-passing zones.—
108 (1) The Department of Transportation and local authorities
109 may are authorized to determine those portions of any highway
110 under their respective jurisdictions jurisdiction where
111 overtaking and passing or driving to the left of the roadway
112 would be especially hazardous and may, by appropriate signs or
113 markings on the roadway, indicate the beginning and end of such
114 zones., and When such signs or markings are in place and clearly
115 visible to an ordinarily observant person, a every driver of a
116 vehicle must shall obey the directions thereof.
117 (2) Where signs or markings are in place to define a no-
118 passing zone as set forth in subsection (1), a no driver may
119 not, shall at any time, drive on the left side of the roadway
120 within with such no-passing zone or on the left side of any
121 pavement striping designed to mark such no-passing zone
122 throughout its length.
123 (3) This section does not apply to a driver who safely and
124 briefly drives to the left of the center of the roadway only to
125 the extent necessary to:
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126 (a) Avoid when an obstruction;
127 (b) Turn exists making it necessary to drive to the left
128 of the center of the highway, nor to the driver of a vehicle
129 turning left into or from an alley, a private road, or a
130 driveway; or
131 (c) Overtake and pass a bicycle or other nonmotorized
132 vehicle, an electric bicycle, or a pedestrian pursuant to s.
133 316.083(2) or (3).
134 (4) A person who violates violation of this section
135 commits is a noncriminal traffic infraction, punishable as a
136 moving violation as provided in chapter 318.
137 Section 4. Section 316.151, Florida Statutes, is amended
138 to read:
139 316.151 Required position and method of turning at
140 intersections.—
141 (1)(a) Right turn.—The driver of a vehicle intending to
142 turn right at an intersection onto a highway, public or private
143 roadway, or driveway must shall do so as follows:
144 1.(a) Make Right turn.—both the approach for a right turn
145 and a right turn shall be made as close as practicable to the
146 right-hand curb or edge of the roadway.
147 2. When overtaking and passing a bicycle proceeding in the
148 same direction, give an appropriate signal as provided for in s.
149 316.156 and make the right turn only if the bicycle is at least
150 20 feet from the intersection.
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151 (b) Left turn.—
152 1. The driver of a vehicle intending to turn left at an
153 any intersection onto a highway, public or private roadway, or
154 driveway must shall approach the intersection in the extreme
155 left-hand lane lawfully available to traffic moving in the
156 direction of travel of such vehicle, and must make, after
157 entering the intersection, the left turn shall be made so as to
158 leave the intersection in a lane lawfully available to traffic
159 moving in such direction upon the roadway being entered.
160 2. A person riding a bicycle and intending to turn left in
161 accordance with this section is entitled to the full use of the
162 lane from which the turn may legally be made. The person must:
163 a. Whenever practicable, make the left turn shall be made
164 in that portion of the intersection to the left of the center of
165 the intersection; or.
166 (c) Left turn by bicycle.—In addition to the method of
167 making a left turn described in paragraph (b), a person riding a
168 bicycle and intending to turn left has the option of following
169 the course described hereafter: The rider shall
170 b. Approach the turn as close as practicable to the right
171 curb or edge of the roadway; after proceeding across the
172 intersecting roadway, make the turn shall be made as close as
173 practicable to the curb or edge of the roadway on the far side
174 of the intersection; and, before proceeding, the bicyclist shall
175 comply with any official traffic control device or police
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176 officer regulating traffic on the highway along which the person
177 bicyclist intends to proceed.
178 (2) The state, county, and local authorities in their
179 respective jurisdictions may cause official traffic control
180 devices to be placed within or adjacent to intersections and
181 thereby require and direct that a different course from that
182 specified in this section be traveled by vehicles turning at an
183 intersection. When such devices are so placed, a no driver of a
184 vehicle may not turn a vehicle at an intersection other than as
185 directed and required by such devices.
186 (3) A person who violates violation of this section
187 commits is a noncriminal traffic infraction, punishable as a
188 moving violation as provided in chapter 318.
189 Section 5. Subsections (5), (6), and (19) of section
190 316.2065, Florida Statutes, are amended to read:
191 316.2065 Bicycle regulations.—
192 (5)(a) A Any person operating a bicycle upon a roadway at
193 less than the normal speed of traffic at the time and place and
194 under the conditions then existing must shall ride in the
195 bicycle lane marked for bicycle use or, if there is no bicycle
196 lane on the roadway is marked for bicycle use, as close as
197 practicable to the right-hand curb or edge of the roadway except
198 under any of the following situations:
199 1. When overtaking and passing another bicycle or vehicle
200 proceeding in the same direction.
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201 2. When preparing for a left turn at an intersection or
202 into a private road or driveway.
203 3. When reasonably necessary to avoid any condition or
204 potential conflict, including, but not limited to, a fixed or
205 moving object, parked or moving vehicle, bicycle, pedestrian,
206 animal, surface hazard, turn lane, or substandard-width lane,
207 which makes it unsafe to continue along the right-hand curb or
208 edge or within a bicycle lane. On roads that contain a
209 substandard-width lane, persons operating bicycles must ride
210 single-file to maintain the minimum 3 feet of space for motor
211 vehicles to pass persons operating a bicycle as provided in s.
212 316.083. For the purposes of this subsection, a "substandard-
213 width lane" is a lane that is too narrow for a bicycle and
214 another vehicle to travel safely side by side within the lane.
215 (b) A Any person operating a bicycle upon a one-way
216 highway with two or more marked traffic lanes may ride as near
217 the left-hand curb or edge of such roadway as practicable.
218 (6)(a) Persons riding bicycles upon a roadway or in a
219 bicycle lane may not ride more than two abreast except on a
220 bicycle path paths or parts of roadways set aside for the
221 exclusive use of bicycles. Persons riding two abreast may not
222 impede traffic when traveling at less than the normal speed of
223 traffic at the time and place and under the conditions then
224 existing and must shall ride within a single lane. Where bicycle
225 lanes exist, persons riding bicycles may ride two abreast if
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226 both are able to remain within the bicycle lane. If the bicycle
227 lane is too narrow to allow two persons riding bicycles to ride
228 two abreast, the persons must ride single-file and within the
229 bicycle lane. On roads that contain a substandard-width lane as
230 defined in subparagraph (5)(a)3., persons riding bicycles may
231 temporarily ride two abreast only to avoid hazards in the
232 roadway or to overtake another person riding a bicycle.
233 (b) When stopping at a stop sign, persons riding bicycles
234 in groups, after coming to a full stop and obeying all traffic
235 laws, may proceed through the stop sign in a group of 10 or
236 fewer at a time. Motor vehicle operators must allow each such
237 group to travel through the intersection before moving forward.
238 (19) Except as otherwise provided in this section, a
239 person who violates violation of this section commits is a
240 noncriminal traffic infraction, punishable as a pedestrian
241 violation as provided in chapter 318. A law enforcement officer
242 may issue traffic citations for a violation of subsection (3) or
243 subsection (15) only if the violation occurs on a bicycle path
244 or road, as defined in s. 334.03. However, a law enforcement
245 officer may not issue citations to persons on private property,
246 except any part thereof which is open to the use of the public
247 for purposes of vehicular traffic.
248 Section 6. Subsection (3) of section 322.12, Florida
249 Statutes, is amended to read:
250 322.12 Examination of applicants.—
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251 (3) For an applicant for a Class E driver license, such
252 examination shall include all of the following:
253 (a) A test of the applicant's eyesight given by the driver
254 license examiner designated by the department or by a licensed
255 ophthalmologist, optometrist, or physician.
256 (b) and A test of the applicant's hearing given by a
257 driver license examiner or a licensed physician.
258 (c) The examination shall also include A test of the
259 applicant's ability to read and understand highway signs
260 regulating, warning, and directing traffic; his or her knowledge
261 of the traffic laws of this state, including laws regulating
262 driving under the influence of alcohol or controlled substances,
263 driving with an unlawful blood-alcohol level, and driving while
264 intoxicated; and his or her knowledge of the effects of alcohol
265 and controlled substances upon persons and the dangers of
266 driving a motor vehicle while under the influence of alcohol or
267 controlled substances. At least 25 questions within the bank of
268 test questions must address bicycle and pedestrian safety.
269 (d) and shall include An actual demonstration of ability
270 to exercise ordinary and reasonable control in the operation of
271 a motor vehicle.
272 Section 7. Paragraph (c) of subsection (1) of section
273 212.05, Florida Statutes, is amended to read:
274 212.05 Sales, storage, use tax.—It is hereby declared to
275 be the legislative intent that every person is exercising a
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276 taxable privilege who engages in the business of selling
277 tangible personal property at retail in this state, including
278 the business of making mail order sales, or who rents or
279 furnishes any of the things or services taxable under this
280 chapter, or who stores for use or consumption in this state any
281 item or article of tangible personal property as defined herein
282 and who leases or rents such property within the state.
283 (1) For the exercise of such privilege, a tax is levied on
284 each taxable transaction or incident, which tax is due and
285 payable as follows:
286 (c) At the rate of 6 percent of the gross proceeds derived
287 from the lease or rental of tangible personal property, as
288 defined herein; however, the following special provisions apply
289 to the lease or rental of motor vehicles:
290 1. When a motor vehicle is leased or rented for a period
291 of less than 12 months:
292 a. If the motor vehicle is rented in Florida, the entire
293 amount of such rental is taxable, even if the vehicle is dropped
294 off in another state.
295 b. If the motor vehicle is rented in another state and
296 dropped off in Florida, the rental is exempt from Florida tax.
297 2. Except as provided in subparagraph 3., for the lease or
298 rental of a motor vehicle for a period of not less than 12
299 months, sales tax is due on the lease or rental payments if the
300 vehicle is registered in this state; provided, however, that no
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301 tax shall be due if the taxpayer documents use of the motor
302 vehicle outside this state and tax is being paid on the lease or
303 rental payments in another state.
304 3. The tax imposed by this chapter does not apply to the
305 lease or rental of a commercial motor vehicle as defined in s.
306 316.003(14)(a) s. 316.003(13)(a) to one lessee or rentee for a
307 period of not less than 12 months when tax was paid on the
308 purchase price of such vehicle by the lessor. To the extent tax
309 was paid with respect to the purchase of such vehicle in another
310 state, territory of the United States, or the District of
311 Columbia, the Florida tax payable shall be reduced in accordance
312 with the provisions of s. 212.06(7). This subparagraph shall
313 only be available when the lease or rental of such property is
314 an established business or part of an established business or
315 the same is incidental or germane to such business.
316 Section 8. Paragraph (a) of subsection (3) of section
317 316.306, Florida Statutes, is amended to read:
318 316.306 School and work zones; prohibition on the use of a
319 wireless communications device in a handheld manner.—
320 (3)(a)1. A person may not operate a motor vehicle while
321 using a wireless communications device in a handheld manner in a
322 designated school crossing, school zone, or work zone area as
323 defined in s. 316.003(107) s. 316.003(105). This subparagraph
324 shall only be applicable to work zone areas if construction
325 personnel are present or are operating equipment on the road or
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326 immediately adjacent to the work zone area. For the purposes of
327 this paragraph, a motor vehicle that is stationary is not being
328 operated and is not subject to the prohibition in this
329 paragraph.
330 2.a. During the period from October 1, 2019, through
331 December 31, 2019, a law enforcement officer may stop motor
332 vehicles to issue verbal or written warnings to persons who are
333 in violation of subparagraph 1. for the purposes of informing
334 and educating such persons of this section. This sub-
335 subparagraph shall stand repealed on October 1, 2020.
336 b. Effective January 1, 2020, a law enforcement officer
337 may stop motor vehicles and issue citations to persons who are
338 driving while using a wireless communications device in a
339 handheld manner in violation of subparagraph 1.
340 Section 9. Subsection (1) of section 655.960, Florida
341 Statutes, is amended to read:
342 655.960 Definitions; ss. 655.960-655.965.—As used in this
343 section and ss. 655.961-655.965, unless the context otherwise
344 requires:
345 (1) "Access area" means any paved walkway or sidewalk
346 which is within 50 feet of any automated teller machine. The
347 term does not include any street or highway open to the use of
348 the public, as defined in s. 316.003(86)(a) or (b) s.
349 316.003(84)(a) or (b), including any adjacent sidewalk, as
350 defined in s. 316.003.
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351 Section 10. This act shall take effect July 1, 2021.
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COMMERCE COMMITTEE
CS/HB 605 by Rep. Hunschofsky
BICYCLE AND PEDESTRIAN SAFETY
AMENDMENT SUMMARY
APRIL 19, 2021
Amendment 1 by Rep. Hunschofsky (Line 57):
• Removes the term “pedestrian” from provisions related to motor vehicles
overtaking bicycles, other nonmotorized vehicles, and electric bicycles.
• Adds that a motor vehicle overtaking and passing a bicycle may make a right turn
if the bicycle is of such a distance that the motor vehicle may safely turn.
• Requires drivers to stop for one group of 10 or fewer bicyclists to travel through
an intersection prior to proceeding through the intersection.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 605 (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 Hunschofsky offered the following:
3
4 Amendment (with title amendment)
5 Remove lines 57-237 and insert:
6 Section 2. Section 316.083, Florida Statutes, is amended
7 to read:
8 316.083 Overtaking and passing a vehicle, a bicycle or
9 other nonmotorized vehicle or an electric bicycle.—The following
10 rules shall govern the overtaking and passing of vehicles,
11 bicycles and other nonmotorized vehicles and electric bicycles,
12 proceeding in the same direction, subject to those limitations,
13 exceptions, and special rules hereinafter stated:
14 (1) The driver of a vehicle overtaking another vehicle
15 proceeding in the same direction must shall give an appropriate
16 signal as provided for in s. 316.156, must shall pass to the
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Amendment No. 1
17 left thereof at a safe distance, and must shall not again drive
18 to the right side of the roadway until safely clear of the
19 overtaken vehicle.
20 (2) The driver of a vehicle overtaking a bicycle or other
21 nonmotorized vehicle or an electric bicycle occupying the same
22 travel lane must pass the bicycle or other nonmotorized vehicle
23 or electric bicycle at a safe distance of not less than 3 feet
24 or, if such movement cannot be safely accomplished, must remain
25 at a safe distance behind the bicycle or other nonmotorized
26 vehicle or electric bicycle until the driver can safely pass at
27 a distance of not less than 3 feet and must safely clear the
28 overtaken bicycle or other nonmotorized vehicle or electric
29 bicycle.
30 (3) The driver of a vehicle overtaking a bicycle or other
31 nonmotorized vehicle, or an electric bicycle, occupying a
32 bicycle lane must pass the bicycle, other nonmotorized vehicle,
33 or electric bicycle at a safe distance of not less than 3 feet
34 between the vehicle and the bicycle, other nonmotorized vehicle,
35 or electric bicycle.
36 (4) Subsections (2) and (3) do not apply when a bicycle or
37 other nonmotorized vehicle, or an electric bicycle, occupies a
38 separated bicycle lane.
39 (5)(2) Except when overtaking and passing on the right is
40 permitted, the driver of an overtaken vehicle must shall give
41 way to the right in favor of the overtaking vehicle, on audible
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42 signal or upon the visible blinking of the headlamps of the
43 overtaking vehicle if such overtaking is being attempted at
44 nighttime, and must shall not increase the speed of his or her
45 vehicle until completely passed by the overtaking vehicle.
46 (6)(3) A person who violates violation of this section
47 commits is a noncriminal traffic infraction, punishable as a
48 moving violation as provided in chapter 318.
49 (7) The department must provide an annual awareness and
50 safety campaign informing the public about the safety
51 precautions to be taken when overtaking a bicycle or other
52 nonmotorized vehicle, or an electric bicycle.
53 Section 3. Section 316.0875, Florida Statutes, is amended
54 to read:
55 316.0875 No-passing zones.—
56 (1) The Department of Transportation and local authorities
57 may are authorized to determine those portions of any highway
58 under their respective jurisdictions jurisdiction where
59 overtaking and passing or driving to the left of the roadway
60 would be especially hazardous and may, by appropriate signs or
61 markings on the roadway, indicate the beginning and end of such
62 zones., and When such signs or markings are in place and clearly
63 visible to an ordinarily observant person, a every driver of a
64 vehicle must shall obey the directions thereof.
65 (2) Where signs or markings are in place to define a no-
66 passing zone as set forth in subsection (1), a no driver may
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67 not, shall at any time, drive on the left side of the roadway
68 within with such no-passing zone or on the left side of any
69 pavement striping designed to mark such no-passing zone
70 throughout its length.
71 (3) This section does not apply to a driver who safely and
72 briefly drives to the left of the center of the roadway only to
73 the extent necessary to:
74 (a) Avoid when an obstruction;
75 (b) Turn exists making it necessary to drive to the left
76 of the center of the highway, nor to the driver of a vehicle
77 turning left into or from an alley, a private road, or a
78 driveway; or
79 (c) Overtake and pass a bicycle or other nonmotorized
80 vehicle or an electric bicycle pursuant to s. 316.083(2) or (3).
81 (4) A person who violates violation of this section
82 commits is a noncriminal traffic infraction, punishable as a
83 moving violation as provided in chapter 318.
84 Section 4. Section 316.151, Florida Statutes, is amended
85 to read:
86 316.151 Required position and method of turning at
87 intersections.—
88 (1)(a) Right turn.—The driver of a vehicle intending to
89 turn right at an intersection onto a highway, public or private
90 roadway, or driveway must shall do so as follows:
91 1.(a) Make Right turn.—both the approach for a right turn
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92 and a right turn shall be made as close as practicable to the
93 right-hand curb or edge of the roadway.
94 2. When overtaking and passing a bicycle proceeding in the
95 same direction, give an appropriate signal as provided for in s.
96 316.156 and make the right turn only if the bicycle is at least
97 20 feet from the intersection, and is of such a distance that
98 the driver of a vehicle may safely turn.
99 (b) Left turn.—
100 1. The driver of a vehicle intending to turn left at an
101 any intersection onto a highway, public or private roadway, or
102 driveway must shall approach the intersection in the extreme
103 left-hand lane lawfully available to traffic moving in the
104 direction of travel of such vehicle, and must make, after
105 entering the intersection, the left turn shall be made so as to
106 leave the intersection in a lane lawfully available to traffic
107 moving in such direction upon the roadway being entered.
108 2. A person riding a bicycle and intending to turn left in
109 accordance with this section is entitled to the full use of the
110 lane from which the turn may legally be made. The person must:
111 a. Whenever practicable, make the left turn shall be made
112 in that portion of the intersection to the left of the center of
113 the intersection; or.
114 (c) Left turn by bicycle.—In addition to the method of
115 making a left turn described in paragraph (b), a person riding a
116 bicycle and intending to turn left has the option of following
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Amendment No. 1
117 the course described hereafter: The rider shall
118 b. Approach the turn as close as practicable to the right
119 curb or edge of the roadway; after proceeding across the
120 intersecting roadway, make the turn shall be made as close as
121 practicable to the curb or edge of the roadway on the far side
122 of the intersection; and, before proceeding, the bicyclist shall
123 comply with any official traffic control device or police
124 officer regulating traffic on the highway along which the person
125 bicyclist intends to proceed.
126 (2) The state, county, and local authorities in their
127 respective jurisdictions may cause official traffic control
128 devices to be placed within or adjacent to intersections and
129 thereby require and direct that a different course from that
130 specified in this section be traveled by vehicles turning at an
131 intersection. When such devices are so placed, a no driver of a
132 vehicle may not turn a vehicle at an intersection other than as
133 directed and required by such devices.
134 (3) A person who violates violation of this section
135 commits is a noncriminal traffic infraction, punishable as a
136 moving violation as provided in chapter 318.
137 Section 5. Subsections (5), (6), and (19) of section
138 316.2065, Florida Statutes, are amended to read:
139 316.2065 Bicycle regulations.—
140 (5)(a) A Any person operating a bicycle upon a roadway at
141 less than the normal speed of traffic at the time and place and
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Amendment No. 1
142 under the conditions then existing must shall ride in the
143 bicycle lane marked for bicycle use or, if there is no bicycle
144 lane on the roadway is marked for bicycle use, as close as
145 practicable to the right-hand curb or edge of the roadway except
146 under any of the following situations:
147 1. When overtaking and passing another bicycle or vehicle
148 proceeding in the same direction.
149 2. When preparing for a left turn at an intersection or
150 into a private road or driveway.
151 3. When reasonably necessary to avoid any condition or
152 potential conflict, including, but not limited to, a fixed or
153 moving object, parked or moving vehicle, bicycle, pedestrian,
154 animal, surface hazard, turn lane, or substandard-width lane,
155 which makes it unsafe to continue along the right-hand curb or
156 edge or within a bicycle lane. On roads that contain a
157 substandard-width lane, persons operating bicycles must ride
158 single-file to maintain the minimum 3 feet of space for motor
159 vehicles to pass persons operating a bicycle as provided in s.
160 316.083. For the purposes of this subsection, a "substandard-
161 width lane" is a lane that is too narrow for a bicycle and
162 another vehicle to travel safely side by side within the lane.
163 (b) A Any person operating a bicycle upon a one-way
164 highway with two or more marked traffic lanes may ride as near
165 the left-hand curb or edge of such roadway as practicable.
166 (6)(a) Persons riding bicycles upon a roadway or in a
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Amendment No. 1
167 bicycle lane may not ride more than two abreast except on a
168 bicycle path paths or parts of roadways set aside for the
169 exclusive use of bicycles. Persons riding two abreast may not
170 impede traffic when traveling at less than the normal speed of
171 traffic at the time and place and under the conditions then
172 existing and must shall ride within a single lane. Where bicycle
173 lanes exist, persons riding bicycles may ride two abreast if
174 both are able to remain within the bicycle lane. If the bicycle
175 lane is too narrow to allow two persons riding bicycles to ride
176 two abreast, the persons must ride single-file and within the
177 bicycle lane. On roads that contain a substandard-width lane as
178 defined in subparagraph (5)(a)3., persons riding bicycles may
179 temporarily ride two abreast only to avoid hazards in the
180 roadway or to overtake another person riding a bicycle.
181 (b) When stopping at a stop sign, persons riding bicycles
182 in groups, after coming to a full stop and obeying all traffic
183 laws, may proceed through the stop sign in a group of 10 or
184 fewer at a time. Motor vehicle operators must allow one such
185 group to travel through the intersection before moving forward.
186
187
188 -----------------------------------------------------
189 T I T L E A M E N D M E N T
190 Remove lines 7-15 and insert:
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Amendment No. 1
191 other nonmotorized vehicle or an electric bicycle; providing
192 exceptions; providing a penalty; requiring the Department of
193 Highway Safety and Motor Vehicles to provide an annual awareness
194 and safety campaign regarding certain safety precautions;
195 amending s. 316.0875, F.S.; exempting a motor vehicle driver
196 from certain provisions relating to no-passing zones when
197 overtaking a bicycle or other nonmotorized vehicle or an
198 electric bicycle; making
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CS/CS/HB 613
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 613 Tax Collector and License Plate Agency Operations
SPONSOR(S): Infrastructure & Tourism Appropriations Subcommittee, Tourism, Infrastructure & Energy
Subcommittee, Aloupis
TIED BILLS: IDEN./SIM. BILLS: SB 884
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Tourism, Infrastructure & Energy Subcommittee 13 Y, 2 N, As CS Johnson Keating
2) Infrastructure & Tourism Appropriations 14 Y, 0 N, As CS Hicks Davis
Subcommittee
3) Commerce Committee Johnson Hamon
SUMMARY ANALYSIS
County tax collectors are the Department of Highway Safety and Motor Vehicles’ (DHSMV) authorized agents
to title and register motor vehicles, motor homes, and vessels, and to provide driver license services. However,
appointed tax collectors in some charter counties are not authorized to provide driver license services. Some
county tax collectors have contracted with privately-owned license plate agents (LPAs) to provide title and
registration services. LPAs currently do not provide driver license services in Florida. Additionally, terms
describing LPAs are not consistent across statute, nor are any of these terms defined.
The bill defines the term “license plate agency” and conforms various statutory provisions to use that term. The
bill provides that operational requirements established by DHSMV policies and procedures must be the same
for both governmentally and privately managed license plate agencies.
The bill provides that, effective October 1, 2021, the appointed tax collector of any charter county may contract
with one or more LPAs to provide the following driver license services:
Processing applications for the renewal of any driver license that is currently compliant with federal
REAL ID Act requirements.
Processing a reinstatement of a suspended driver license when the only condition of such
reinstatement is payment of fees.
Processing a licensee’s or cardholder’s change of address and application for a replacement driver
license or identification card, if the driver license or identification card is currently compliant with federal
REAL ID Act requirements.
The bill requires DHSMV, upon application of each tax collector electing to participate in the pilot project, to
enter into an interagency agreement allowing the tax collector to provide driver license services. The bill
clarifies that an LPA is not authorized to issue a driver license or identification card. The bill requires
fingerprinting and background checks for a covered employee of an LPA prior to being able to provide such
services. The bill prohibits the automatic transfer of information gathered for the completion of a driver license
or identification card renewal or change of address to a voter registration application and requires that a printed
notice with instructions on how to register to vote or update a voter registration record be provided. The bill
provides that the funds collected by license plate agencies must be deposited into the state treasury within the
same time period as required for tax collectors. The bill requires a review of the pilot project and establishes a
submission date of December 31, 2025, for a final report that addresses the implementation of the project and
the provision of the specified driver license services.
The bill will have a significant, negative fiscal impact on state government expenditures. See Fiscal Analysis
section 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 .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Under chs. 320 and 328, F.S., county tax collectors are the Department of Highway Safety and Motor
Vehicles’ (DHSMVs) authorized agents to title and register motor vehicles, motor homes, and vessels.1
When processing these transactions, tax collectors charge and collect fees specified in state law,2
which are remitted to the state. However, chs. 319, 320, and 328, F.S., also require tax collectors to
retain certain statutorily prescribed service fees and charges.3
Currently, 65 counties have elected tax collectors who are constitutional officers, while Broward and
Miami-Dade Counties have appointed tax collectors under each county’s charter government.
However, pursuant to s. 1(d), Article VIII of the State Constitution, these counties will have elected tax
collectors effective January 7, 2025.4
Sixteen counties have, or until recently had, contracts with privately owned license plate agents (LPAs)
to operate 57 offices to perform title and registration services for motor vehicles, mobile homes, and
vessels. In counties with elected tax collectors, LPAs only charge the fees for those services as
expressly authorized in statute. In these counties, the LPAs may retain all or a portion of the statutorily
authorized service fee that tax collectors are allowed to collect for motor vehicle, mobile home, and
vessel title and registration services, as provided in the contracts between the LPA and the tax
collector.5 The LPAs in Broward and Miami-Dade Counties charge fees6 for motor vehicle, mobile
home, and vessel title and registration fees in addition to the statutory fees authorized in chs. 319, 320,
and 328, F.S. The additional fees levied in Broward and Miami-Dade Counties are levied pursuant to
county ordinance and are retained by the LPAs.7
Terms such as “license tag agent” and “tag agency” appear throughout Florida Statutes, relating to
private tag agencies authorized to perform certain motor vehicle-related transactions. However, these
terms are not defined, nor are they used consistently across the statutes.
DHSMV has transitioned its driver license services from DHSMV-owned facilities to elected county tax
collectors. Florida law required DHSMV to completely transition all driver license issuance services to
tax collectors who are constitutional officers under s. 1(d), Article VIII of the State Constitution with this
transition to be completed by June 30, 2015. The transition of services to appointed charter county tax
collectors may occur on a limited basis as directed by DHSMV.8
Currently, LPAs do not provide driver license services anywhere in Florida.
Driver License Issuance Systems
DHSMV’s Florida Driver License Information System (FDLIS) is the legacy driver license issuance
system that will be completely replaced by May 2021 with the newly launched Online Registration and
Identity Operating Network (ORION). ORION is the replacement database application which will be
used to conduct all driver license and identification card issuances. ORION provides real-time access
1 County tax collectors are expressly made agents of the state with respect to motor vehicle registration in s. 320.03(1), F.S., and with
respect to vessel registration in s. 328.73(1), F.S.
2 See s. 319.32, F.S., for motor vehicle title fees, s. 320.03, for motor vehicle registration fees, s. 320.04, F.S., as to motor vehicle
service charges, and s. 328.72, F.S., as to vessel registration fees.
3 Department of Highway Safety and Motor Vehicles, Agency Analysis of 2021 SB 342, p 2. (January 14, 2021).
4 Id.
5 Id.
6 Formerly the LPAs in Volusia County charged fees. An elected county tax collector took office on January 5, 2021, and the LPA
offices closed by February 4, 2021. Id.
7 Id.
8 Section 322.02(1), F.S.
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to extensive information on every driver, including driving history, vehicle insurance information, and
personal identity information and documents.
FDLIS/ORION is installed in 195 tax collector offices in 63 counties in Florida and in the 15 driver
license offices DHSMV operates in Broward and Miami-Dade counties.
Only DHSMV and elected tax collectors have access to FDLIS/ORION. Access to these systems is
governed by individual memoranda of understanding (MOUs) between DHSMV and each tax collector.
Section 322.135(1)(c) F.S., requires county tax collectors to charge a $6.25 service fee for providing
driver license services.9
Federal REAL ID Act
The federal REAL ID Act of 2005 provides minimum security requirements for the issuance and
production of state and territory driver licenses and identification cards in order for federal agencies to
accept these documents for official purposes,10 which include entering federal facilities and boarding
commercial aircraft.
Real ID Act compliant state-issued driver licenses and identification cards must include the following
information:
The person's full legal name, date of birth, and gender;
The person's driver's license or identification card number;
A digital photograph of the person11 (all in-office transactions require the taking of the
customer’s photograph, even if the customer is only taking a test);
The person's address of principal residence;
The person's signature;
Physical security features designed to prevent tampering, counterfeiting, or duplication of the
driver licenses and identification cards for fraudulent purposes; and
A common machine-readable technology, with defined minimum elements.
Additionally, the REAL ID Act mandates minimum standards that states must adopt when issuing driver
license and ID cards. Each state or territory must:
Require, at a minimum, presentation and verification of certain documents verifying a person’s
identity or address.
Require valid documentary evidence of the applicant’s lawful presence in the United States.
Establish procedures verifying each document required to be presented by the applicant.
Enter into a MOU with the Department of Homeland Security to access its system to verify the
lawful status of an applicant, other than a U.S. citizen.
Confirm with the Social Security Administration that the social security number presented by an
applicant is registered to that person.
Ensure the physical security of facilities where driver licenses and identification cards are
produced; and the security of document materials and papers from which driver licenses and
identification cards are produced.
Require that all persons authorized to manufacture or produce driver licenses and identification
cards must satisfy appropriate security clearance requirements.
Incorporate physical security features on the driver licenses and identification cards which are
designed to prevent tampering, counterfeiting, and duplication of the documents for a fraudulent
purpose.
DHSMV has fully complied with and has been certified as compliant with the Real ID Act. As of January
2021, almost 95 percent of all Florida credentials are REAL ID compliant. Certification as compliant
with the REAL ID Act means that Florida achieved and met the mandatory minimum requirements
noted above. The consequences for a state or territory that fails to be certified as REAL ID compliant is
9 Department of Highway Safety and Motor Vehicles, Agency Analysis of 2021 House Bill 613, p. 5-6. (Mar. 5, 2021).
10 49 U.S.C. 30301 note; 6 U.S.C. 111, 112.
11 Section 202(b) of the Real ID Act.
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that its driver license and identification cardholders will not be permitted to use their state-issued driver
license or identification card for federal purposes, including as the identification required to board a
commercial airplane.12
Due to the federal REAL ID Act, driver license offices must have specific types of equipment to issue
driver licenses and identification cards over the counter. When a tax collector opens a driver license
office, the tax collector pays the initial cost for all the equipment, a security safe, and security cameras;
DHSMV provides and pays for the blank driver license and identification card stock. Approximately
every five years, this equipment becomes obsolete and must be replaced. The cost to replace the
outdated driver license equipment is paid for by DHSMV, pursuant to an appropriation.13
Motor Voter Law
The Federal Voter Registration Act of 1993, also known as the motor voter law, requires a voter
registration form to be included with each driver license application, including renewal applications, and
there are federal requirements regarding the transmission of this data to the state election’s office.14
Section 97.057(1), F.S., requires DHSMV to provide the opportunity to apply to register to vote or to
update a voter registration record to each individual who comes to an office to:
Apply for or renew a driver license;
Apply for or renew an identification card; or
Change an address on an existing driver license or identification card.15
Effect of the Bill
The bill defines the term “license plate agency” as an office appointed by the tax collector which is
equipped with DHSMV’s Florida Real Time Vehicle Information System (FRVIS) and managed by a
governmental or private entity to process transactions related to motorist services on behalf of DHSMV.
The bill amends various sections of statute referring to license tag agencies and tag agencies to
change these references to the newly defined term “license plate agency.”
The bill provides that operational requirements for license plate agencies, as established by DHSMV
policies and procedures, including, but not limited to, purchases of equipment, license plates, and
validation stickers and other costs incurred by DHSMV, must be the same for both governmentally and
privately managed license plate agencies.
The bill provides that, effective October 1, 2021, the appointed tax collector of any charter county may,
at the tax collector’s discretion, participate in a pilot project through which the tax collector contracts
with one or more license plate agencies to provide the following driver license services:
Processing a licensee’s application and collecting the required fees for renewal of any driver
license that is currently compliant with federal REAL ID Act requirements.
Processing a licensee’s application for reinstatement of a suspended driver license and
collecting the required fees, if the only condition for reinstatement is the payment of such fees.
Processing a licensee’s or cardholder’s request to change his or her address and application for
a replacement driver license or identification card, and collecting the required fees, if the driver
license or identification card is currently compliant with federal REAL ID Act requirements.
The bill provides that DHSMV shall, upon application from each tax collector electing to participate in
the pilot project, authorize the tax collector by interagency agreement, to provide these services as
DHSMV’s agent through one or more license plate agencies.
The bill provides that a tax collector’s election to contract with an LPA does not require the tax collector
to provide all authorized driver license services. The bill does not authorize an LPA to issue driver
12 Department of Highway Safety and Motor Vehicles, Agency Analysis of 2021 House Bill 613. pp. 7-8. (March 5, 2021)
13 Id. at 5.
14 United States Department of Justice, The National Voter Registration Act of 1993, https://www.justice.gov/crt/national-voter-
registration-act-1993-nvra (last visited March 4, 2021).
15 Department of Highway Safety and Motor Vehicles, Agency Analysis of 2021 House Bill 613. p. 8. (March 5, 2021)
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licenses or identification cards or possess any blank driver licenses or identification cards. The bill
requires that a covered employee of an LPA, prior to providing driver license services, must be
fingerprinted, undergo background checks, and be subject to disqualification from providing such
services to the extent required by federal law. The bill prohibits information gathered for the completion
of a driver license or identification card renewal or change of address to be automatically transferred to
a voter registration application. Instead, an LPA must provide each licensee or cardholder a printed
notice with instructions on how to register to vote or update a voter registration record. If the LPA
collects funds to be deposited into the state treasury, these funds must be paid into the state treasury
within the same time frame as required for county tax collectors.16
The bill sets forth provisions requiring each tax collector participating in the pilot project to review
implementation of the pilot project and the provisions of the specified driver license services by LPAs in
the respective county. The tax collector must submit a preliminary report of its findings and
recommendations to DHSMV, and the department must provide comments to the tax collector
regarding their findings and recommendations. A final report must be submitted by the tax collector,
inclusive of DHSMV’s comments, to the Governor and Cabinet, the President of the Senate, and the
Speaker of the House of Representative by December 31, 2025.
The bill has an effective date of July 1, 2021.
B. SECTION DIRECTORY:
Section 1: Amends s. 320.01, F.S., defining the term “license plate agency.”
Section 2: Amends s. 320.03, F.S., relating to the registration duties of tax collectors.
Sections 3-5: Amends ss. 320.04, 320.06, and 320.0894, F.S., to conform.
Section 6: Amends s. 322.135, F.S., relating to driver license agents.
Sections 7-9: Amends ss. 212.1832, 681.117, and 1002.40, F.S., to conform.
Section 10: 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:
Although this bill establishes an optional pilot project, to the extent any LPA participates, according
to DHSMV there will be a significant, negative impact on expenditures that cannot be absorbed
within existing resources. DHSMV reports it would require approximately $142,688 of additional
contracting resources for programming, development, and installation of the driver license issuance
system in LPA offices.17 Training costs, however, to ensure LPAs can deliver the driver license
services, cannot be quantified and are indeterminate.
Additionally, the bill requires both governmentally and privately managed LPA costs be the same.
This provision requires DHSMV to assume the annual, recurring network costs for 57 LPAs
16 Section 322.135(6), F.S., requires tax collectors to pay all sums due to the State Treasury no later than five working days after the
close of the business day in which the funds were received.
17 Attachment to e-mail from Kevin Jacobs, Legislative Affairs Director, Department of Highway Safety and Motor Vehicles, Info for
meeting. (Apr. 9, 2021).
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statewide, estimated to be approximately $513,864.18 DHSMV reports that a specific appropriation
would be needed as they cannot absorb this increase in costs within existing resources.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
The bill may have a negative fiscal impact on local government revenues, as county tax collectors
that elect to participate in the pilot project may see a reduction in revenues associated with
additional services being provided by private license plate agencies. Any revenue losses may be
offset to some extent by a reduction in expenditures.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
License plate agencies may see additional revenues associated with providing additional services.
LPAs would also be responsible for the initial equipment purchases, estimated to be approximately
$1.8 million.19
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 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, nor does it require rulemaking.
C. DRAFTING ISSUES OR OTHER COMMENTS:
Drafting Issue
The bill makes conforming changes to the Hope Scholarship Program to the replace the term “tag
agency” with “license plate agency.” According to the Department of Revenue, where the word
“agency” is replaced in this context, the term refers to both a “designated agent” and a “private tag
agent” and the word “agent” should be put back in the bill in both locations.20
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On March 9, 2021, the Tourism, Infrastructure & Energy Subcommittee adopted one amendment and
reported the bill favorably as a committee substitute. The committee substitute:
18 Id.
19 Id.
20 Florida Department of Revenue, Agency Analysis of 2021 House Bill 613, pp. 4-5. (Feb. 26, 2021).
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Relocates provisions of the bill that authorize license plate agencies to provide driver license
services.
Authorizes all tax collectors, effective October 1, 2021, to contract with one or more license plate
agencies for specified driver license services.
Requires a tax collector to enter into an interagency agreement with DHSMV to provide driver
license services.
Provides that license plate agents are not authorized to issue driver licenses or identification cards
or to possess blank driver licenses and identification cards.
Requires funds collected from license plate agencies to be deposited into the state treasury in the
same time frame as required for county tax collectors.
On April 6, 2021, the Infrastructure and Tourism Appropriations Subcommittee adopted an amendment and
reported the bill favorably as a committee substitute. The committee substitute:
Authorizes the appointed tax collector of any charter county, effective October 1, 2021, to
participate in a pilot project through which the tax collector contracts with LPAs for specified driver
license services.
Processes applications for the renewal of any driver license, change of address, and application for
a replacement driver license or identification card that is currently compliant with federal REAL ID
Act requirements.
Requires that a covered employee of an LPA must be fingerprinted, undergo background checks,
and be subject to disqualification from providing such services to the extent required by federal law.
Prohibits the automatic transfer of information gathered for the completion of a driver license or
identification card renewal or change of address to a voter registration application.
Requires that a printed notice, as prescribed by DHSMV, with instructions on how to register to vote
or update a voter registration record be provided.
Requires a review of the pilot project and that a final report be submitted by the tax collector,
inclusive of DHSMV’s comments, to the Governor and Cabinet, the President of the Senate, and
the Speaker of the House of Representatives by December 31, 2025.
This analysis is drafted to the committee substitute as approved by the Infrastructure and Tourism
Appropriations 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/CS/HB 613 2021
1 A bill to be entitled
2 An act relating to tax collector and license plate
3 agency operations; amending s. 320.01, F.S.; defining
4 the term "license plate agency"; amending s. 320.03,
5 F.S.; conforming provisions to changes made by the
6 act; requiring certain operational requirements to be
7 the same for governmentally and privately managed
8 license plate agencies; amending ss. 320.04, 320.06,
9 and 320.0894, F.S.; conforming provisions to changes
10 made by the act; amending s. 322.135, F.S.;
11 authorizing certain tax collectors to participate in a
12 pilot project through which the tax collector
13 contracts with license plate agencies for the
14 provision of specified driver license services;
15 requiring the Department of Highway Safety and Motor
16 Vehicles to enter into interagency agreements with
17 participating tax collectors; providing applicability;
18 requiring certain license plate agency employees to be
19 fingerprinted and undergo background checks according
20 to specified federal requirements; prohibiting certain
21 driver license or identification card information
22 gathered by license plate agencies from being
23 transferred automatically to a voter registration
24 application; requiring license plate agencies
25 providing certain driver license or identification
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26 card services to provide licensees and cardholders
27 with certain printed notices about voter registration;
28 providing for the deposit of funds collected by
29 license plate agencies; requiring each participating
30 tax collector to submit reports of findings and
31 recommendations concerning the pilot project; amending
32 ss. 212.1832, 681.117, and 1002.40, F.S.; conforming
33 provisions to changes made by the act; providing an
34 effective date.
35
36 Be It Enacted by the Legislature of the State of Florida:
37
38 Section 1. Subsection (46) is added to section 320.01,
39 Florida Statutes, to read:
40 320.01 Definitions, general.—As used in the Florida
41 Statutes, except as otherwise provided, the term:
42 (46) "License plate agency" means an office appointed by
43 the tax collector which is equipped with the department's
44 Florida Real Time Vehicle Information System and managed by a
45 governmental or private entity to process transactions related
46 to motorist services on behalf of the department.
47 Section 2. Subsections (4) and (8) of section 320.03,
48 Florida Statutes, are amended to read:
49 320.03 Registration; duties of tax collectors;
50 International Registration Plan.—
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51 (4)(a) Each tax collector or license plate agency tag
52 agent who has online computer access to the department data
53 center or other reasonable access thereto shall, except when the
54 department has issued a registration renewal notice, upon
55 receipt of an application for the registration of a any motor
56 vehicle, determine from the driver file of the applicant whether
57 the applicant's driver license has been canceled, suspended, or
58 revoked and, if so, whether the applicant has surrendered his or
59 her license to the department as required by s. 322.251. If the
60 applicant has not surrendered his or her license in accordance
61 with s. 322.251 the provisions of that section, the tax
62 collector shall refuse to register the vehicle until such time
63 as the applicant surrenders his or her driver license to the
64 department.
65 (b) The Florida Real Time Vehicle Information System shall
66 be installed in every tax collector's office and license plate
67 agency tag agent's office in accordance with a schedule
68 established by the department in consultation with the tax
69 collectors and contingent upon funds being made available for
70 the system by the state.
71 (c) Operational requirements for license plate agencies
72 which are established by department policies and procedures,
73 including, but not limited to, purchases of equipment, license
74 plates, and validation stickers and other costs incurred by the
75 department, shall be the same for both governmentally and
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76 privately managed license plate agencies.
77 (8) If the applicant's name appears on the list referred
78 to in s. 316.1001(4), s. 316.1967(6), s. 318.15(3), or s.
79 713.78(13), a license plate or revalidation sticker may not be
80 issued until that person's name no longer appears on the list or
81 until the person presents a receipt from the governmental entity
82 or the clerk of court that provided the data showing that the
83 fines outstanding have been paid. This subsection does not apply
84 to the owner of a leased vehicle if the vehicle is registered in
85 the name of the lessee of the vehicle. The tax collector and the
86 clerk of the court are each entitled to receive monthly, as
87 costs for implementing and administering this subsection, 10
88 percent of the civil penalties and fines recovered from such
89 persons. As used in this subsection, the term "civil penalties
90 and fines" does not include a wrecker operator's lien as
91 described in s. 713.78(13). If the tax collector has private
92 license plate agencies tag agents, such license plate agencies
93 tag agents are entitled to receive a pro rata share of the
94 amount paid to the tax collector, based upon the percentage of
95 license plates and revalidation stickers issued by the license
96 plate agency tag agent compared to the total issued within the
97 county. The authority of a any private license plate agent to
98 issue license plates shall be revoked, after notice and a
99 hearing as provided in chapter 120, if he or she issues a any
100 license plate or revalidation sticker contrary to the provisions
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101 of this subsection. This section applies only to the annual
102 renewal in the owner's birth month of a motor vehicle
103 registration and does not apply to the transfer of a
104 registration of a motor vehicle sold by a motor vehicle dealer
105 licensed under this chapter, except for the transfer of
106 registrations which includes the annual renewals. This section
107 does not affect the issuance of the title to a motor vehicle,
108 notwithstanding s. 319.23(8)(b).
109 Section 3. Paragraph (b) of subsection (1) of section
110 320.04, Florida Statutes, is amended to read:
111 320.04 Registration service charge.—
112 (1)
113 (b) A service charge of $1 shall also be imposed for the
114 issuance of each license plate validation sticker, vessel decal,
115 and mobile home sticker issued from an automated vending
116 facility or printer dispenser machine. This service charge is
117 payable to the department and shall be used to provide for
118 automated vending facilities or printer dispenser machines that
119 are used to dispense such stickers and decals by each tax
120 collector's or license plate agency's tag agent's employee.
121 Section 4. Subsection (2) of section 320.06, Florida
122 Statutes, is amended to read:
123 320.06 Registration certificates, license plates, and
124 validation stickers generally.—
125 (2) The department shall provide the several tax
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126 collectors and license plate agencies agents with the necessary
127 number of validation stickers.
128 Section 5. Paragraph (b) of subsection (4) of section
129 320.0894, Florida Statutes, is amended to read:
130 320.0894 Motor vehicle license plates to Gold Star family
131 members.—The department shall develop a special license plate
132 honoring the family members of servicemembers who have been
133 killed while serving in the Armed Forces of the United States.
134 The license plate shall be officially designated as the Gold
135 Star license plate and shall be developed and issued as provided
136 in this section.
137 (4)
138 (b) The applicant must provide documentation of the fact
139 that the servicemember was killed while serving and proof of
140 relationship to the servicemember to the tax collector or
141 license plate agency agent before being issued a Gold Star
142 license plate. The tax collector or license plate agent may
143 waive the requirement for such documentation and proof if he or
144 she has actual knowledge of the family relationship and that the
145 servicemember was killed while serving.
146 Section 6. Subsection (1) of section 322.135, Florida
147 Statutes, is amended to read:
148 322.135 Driver license agents.—
149 (1)(a) The department shall, upon application, authorize
150 by interagency agreement any or all of the tax collectors who
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151 are constitutional officers under s. 1(d), Art. VIII of the
152 State Constitution in the several counties of the state, subject
153 to the requirements of law, in accordance with rules of the
154 department, to serve as the department's its agent for the
155 provision of specified driver license services.
156 (a) These services shall be limited to the issuance of
157 driver licenses and identification cards as authorized by this
158 chapter.
159 (b)1. Effective October 1, 2021, the appointed tax
160 collector of any charter county may, at the tax collector's
161 discretion, participate in a pilot project through which the tax
162 collector contracts with one or more license plate agencies for
163 the provision of the following specified driver license
164 services:
165 a. Processing a licensee's application and collecting the
166 required fees for renewal of any driver license that is
167 currently compliant with federal REAL ID Act requirements.
168 b. Processing a licensee's application for reinstatement
169 of a suspended driver license and collecting the required fees
170 therefor, if the only condition of reinstatement is payment of
171 such fees.
172 c. Processing a licensee's or cardholder's request to
173 change his or her address and application for a replacement
174 driver license or identification card, and collecting the
175 required fees therefor, if the driver license or identification
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176 card is currently compliant with federal REAL ID Act
177 requirements.
178 2. The department shall, upon application of each tax
179 collector electing to participate in the pilot project,
180 authorize the tax collector by interagency agreement, subject to
181 the requirements of law, in accordance with rules of the
182 department, to provide these services as the department's agent
183 through one or more license plate agencies.
184 3. A participating tax collector's election to contract
185 with a license plate agency under this paragraph does not
186 require the tax collector to provide all driver license services
187 authorized under paragraph (a).
188 4. This paragraph does not authorize a license plate
189 agency to issue driver licenses or identification cards or
190 possess any blank driver licenses or identification cards.
191 5. Before providing driver license services under this
192 paragraph, a covered employee of a license plate agency must be
193 fingerprinted, undergo background checks, and be subject to
194 disqualification from providing such services, to the extent
195 required by 6 C.F.R. s. 37.45.
196 6. Notwithstanding s. 97.057, information gathered under
197 this paragraph for completion of a driver license or
198 identification card renewal or change of address shall not be
199 transferred automatically to a voter registration application. A
200 license plate agency providing services under this paragraph
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201 shall provide to each licensee or cardholder, in the format
202 prescribed by the department, a printed notice with instructions
203 on how to register to vote or update a voter registration
204 record.
205 7. If funds to be deposited into the State Treasury are
206 collected under this paragraph by a license plate agency, the
207 funds shall be paid into the State Treasury within the period
208 specified in subsection (6) calculated from the date the funds
209 are collected by the license plate agency.
210 8. Each participating tax collector shall review
211 implementation of the pilot project and the provision of the
212 specified driver license services by license plate agencies in
213 the respective county. The tax collector shall submit a
214 preliminary report of its findings and recommendations to the
215 department, and the department shall return comments to the tax
216 collector. By December 31, 2025, the tax collector shall submit
217 a final report, together with the department's comments, to the
218 Governor and Cabinet, the President of the Senate, and the
219 Speaker of the House of Representatives.
220 (c)(b) Each tax collector who is authorized by the
221 department to provide driver license services shall bear all
222 costs associated with providing those services.
223 (d)(c) A service fee of $6.25 must be charged, in addition
224 to the fees set forth in this chapter, for providing all
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225 services pursuant to this chapter. The service fee may not be
226 charged:
227 1. More than once per customer during a single visit to a
228 tax collector's office.
229 2. For a reexamination requested by the Medical Advisory
230 Board or required pursuant to s. 322.221.
231 3. For a voter registration transaction.
232 4. In violation of any federal or state law.
233 5. To a veteran receiving any service pursuant to this
234 chapter, upon presentation of a copy of the veteran's:
235 a. DD Form 214, issued by the United States Department of
236 Defense;
237 b. Veteran health identification card, issued by the
238 United States Department of Veterans Affairs;
239 c. Veteran identification card, issued by the United
240 States Department of Veterans Affairs pursuant to the Veterans
241 Identification Card Act of 2015, Pub. L. No. 114-31; or
242 d. Other acceptable form specified by the Department of
243 Veterans' Affairs.
244 Section 7. Subsection (1) of section 212.1832, Florida
245 Statutes, is amended to read:
246 212.1832 Credit for contributions to eligible nonprofit
247 scholarship-funding organizations.—
248 (1) The purchaser of a motor vehicle shall be granted a
249 credit of 100 percent of an eligible contribution made to an
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250 eligible nonprofit scholarship-funding organization under s.
251 1002.40 against any tax imposed by the state under this chapter
252 and collected from the purchaser by a dealer, designated agent,
253 or private license plate agency tag agent as a result of the
254 purchase or acquisition of a motor vehicle, except that a credit
255 may not exceed the tax that would otherwise be collected from
256 the purchaser by a dealer, designated agent, or private license
257 plate agency tag agent. For purposes of this subsection, the
258 term "purchase" does not include the lease or rental of a motor
259 vehicle.
260 Section 8. Subsection (1) of section 681.117, Florida
261 Statutes, is amended to read:
262 681.117 Fee.—
263 (1) A $2 fee shall be collected by a motor vehicle dealer,
264 or by a person engaged in the business of leasing motor
265 vehicles, from the consumer at the consummation of the sale of a
266 motor vehicle or at the time of entry into a lease agreement for
267 a motor vehicle. Such fees shall be remitted to the county tax
268 collector or private license plate tag agency acting as agent
269 for the Department of Revenue. If the purchaser or lessee
270 removes the motor vehicle from the state for titling and
271 registration outside this state, the fee shall be remitted to
272 the Department of Revenue. All fees, less the cost of
273 administration, shall be transferred monthly to the department
274 for deposit into the Motor Vehicle Warranty Trust Fund.
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275 Section 9. Paragraphs (a), (b), (c), and (g) of subsection
276 (13) of section 1002.40, Florida Statutes, are amended to read:
277 1002.40 The Hope Scholarship Program.—
278 (13) SCHOLARSHIP FUNDING TAX CREDITS.—
279 (a) A tax credit is available under s. 212.1832(1) for use
280 by a person that makes an eligible contribution. Eligible
281 contributions shall be used to fund scholarships under this
282 section and may be used to fund scholarships under s. 1002.395.
283 Each eligible contribution is limited to a single payment of
284 $105 per motor vehicle purchased at the time of purchase of a
285 motor vehicle or a single payment of $105 per motor vehicle
286 purchased at the time of registration of a motor vehicle that
287 was not purchased from a dealer, except that a contribution may
288 not exceed the state tax imposed under chapter 212 that would
289 otherwise be collected from the purchaser by a dealer,
290 designated agent, or private license plate agency tag agent.
291 Payments of contributions shall be made to a dealer at the time
292 of purchase of a motor vehicle or to a designated agent or
293 private license plate agency tag agent at the time of
294 registration of a motor vehicle that was not purchased from a
295 dealer. An eligible contribution shall be accompanied by a
296 contribution election form provided by the Department of
297 Revenue. The form shall include, at a minimum, the following
298 brief description of the Hope Scholarship Program and the
299 Florida Tax Credit Scholarship Program: "THE HOPE SCHOLARSHIP
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300 PROGRAM PROVIDES A PUBLIC SCHOOL STUDENT WHO WAS SUBJECTED TO AN
301 INCIDENT OF VIOLENCE OR BULLYING AT SCHOOL THE OPPORTUNITY TO
302 APPLY FOR A SCHOLARSHIP TO ATTEND AN ELIGIBLE PRIVATE SCHOOL
303 RATHER THAN REMAIN IN AN UNSAFE SCHOOL ENVIRONMENT. THE FLORIDA
304 TAX CREDIT SCHOLARSHIP PROGRAM PROVIDES A LOW-INCOME STUDENT THE
305 OPPORTUNITY TO APPLY FOR A SCHOLARSHIP TO ATTEND AN ELIGIBLE
306 PRIVATE SCHOOL." The form shall also include, at a minimum, a
307 section allowing the consumer to designate, from all
308 participating scholarship funding organizations, which
309 organization will receive his or her donation. For purposes of
310 this subsection, the term "purchase" does not include the lease
311 or rental of a motor vehicle.
312 (b) A dealer, designated agent, or private license plate
313 agency tag agent shall:
314 1. Provide the purchaser the contribution election form,
315 as provided by the Department of Revenue, at the time of
316 purchase of a motor vehicle or at the time of registration of a
317 motor vehicle that was not purchased from a dealer.
318 2. Collect eligible contributions.
319 3. Using a form provided by the Department of Revenue,
320 which shall include the dealer's or agency's agent's federal
321 employer identification number, remit to an organization no
322 later than the date the return filed pursuant to s. 212.11 is
323 due the total amount of contributions made to that organization
324 and collected during the preceding reporting period. Using the
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325 same form, the dealer or agency agent shall also report this
326 information to the Department of Revenue no later than the date
327 the return filed pursuant to s. 212.11 is due.
328 4. Report to the Department of Revenue on each return
329 filed pursuant to s. 212.11 the total amount of credits granted
330 under s. 212.1832 for the preceding reporting period.
331 (c) An organization shall report to the Department of
332 Revenue, on or before the 20th day of each month, the total
333 amount of contributions received pursuant to paragraph (b) in
334 the preceding calendar month on a form provided by the
335 Department of Revenue. Such report shall include:
336 1. The federal employer identification number of each
337 designated agent, private license plate agency tag agent, or
338 dealer who remitted contributions to the organization during
339 that reporting period.
340 2. The amount of contributions received from each
341 designated agent, private license plate agency tag agent, or
342 dealer during that reporting period.
343 (g) A Any dealer, designated agent, private license plate
344 agency tag agent, or organization that fails to timely submit
345 reports to the Department of Revenue as required in paragraphs
346 (b) and (c) is subject to a penalty of $1,000 for every month,
347 or part thereof, the report is not provided, up to a maximum
348 amount of $10,000. Such penalty shall be collected by the
349 Department of Revenue and shall be transferred into the General
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350 Revenue Fund. Such penalty must be settled or compromised if it
351 is determined by the Department of Revenue that the
352 noncompliance is due to reasonable cause and not due to willful
353 negligence, willful neglect, or fraud.
354 Section 10. This act shall take effect July 1, 2021.
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CS/HB 717
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 717 Consumer Protection
SPONSOR(S): Insurance & Banking Subcommittee, Clemons and others
TIED BILLS: IDEN./SIM. BILLS: CS/SB 1598
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Insurance & Banking Subcommittee 15 Y, 0 N, As CS Rowley Luczynski
2) State Administration & Technology 14 Y, 0 N Lee Topp
Appropriations Subcommittee
3) Commerce Committee Rowley Hamon
SUMMARY ANALYSIS
The bill makes the following changes to the laws governing the divisions under the Florida Department of
Financial Services (DFS):
Consumer Credit Scores and Security Freezes – The bill prohibits consumer reporting agencies
from charging a fee for reissuing a personal identification number used to remove a security freeze. It
requires insurers to notify applicants of the availability of DFS’s free financial literacy resources at
certain times.
Consumer Services – The bill requires that licensees provide documents when responding to written
requests from DFS’s Division of Consumer Services.
Professions – The bill defines “claims adjusting,” establishes insurance adjusting firms’ licensure
requirements and penalties, removes the licensure fee, and adds grounds upon which DFS may revoke
or suspend licenses. The bill also establishes penalties for aiding and abetting unlicensed adjusting
firms and bail bond agents.
Insurance Agency Names – The bill provides specific authority for DFS to disapprove insurance
agency names containing the words “Medicaid” and “Medicare.”
Industrial Class Insurers – The bill amends the laws regarding industrial life insurance, small policies
written upon individual lives, so that no such policies may be sold in Florida after July 1, 2021.
Policyholder Rights – The bill extends the time that a policyholder has to cancel a contract with a
public adjuster and amends the Homeowner Claims Bill of Rights. The bill also provides claims
handling requirements, including policyholder notification of a change in adjuster, for both admitted and
surplus lines insurers.
Export to Surplus Lines – The bill mandates that the notification regarding the export of a policy to the
surplus lines market, currently given only to commercial policyholders, be given to all policyholders.
Unfair or Deceptive Acts – The bill adds two grounds, based upon effectuating an entire insurance
policy without consent, to the list of acts that constitute sliding.
Foreign Venue Clauses Prohibited – The bill requires dispute resolution for policies sold in Florida,
and insuring property in Florida, on the admitted or surplus lines markets, occurs in Florida.
Florida Insurance Guaranty Association ( FIGA) Deductible – The bill eliminates a $100 deductible
that a policyholder must pay for a claim covered by FIGA.
Florida Workers’ Compensation Insurance Guaranty Association (FWCIGA) – FWCIGA covers
claims for workers’ compensation policies that are in effect on the date of the final order of an insurer’s
liquidation, leaving some policyholders whose policies have lapsed prior to liquidation with unpaid
claims. The bill eliminates that disparity by removing an exception to the definition of “covered claim.”
The bill may have a minimal positive fiscal impact on state government revenues. It has a minimal negative
impact on state expenditures and no impact on local government revenues or expenditures. The bill may have
a positive economic benefit to consumers and a possible indeterminate negative economic impact on insurers.
Except where otherwise provided, the bill is effective upon becoming law.
FULL ANALYSIS
This document does not reflect the intent or official position of the bill sponsor or House of Representatives .
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I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
The Department of Financial Services (DFS) is composed of 13 divisions and one independent office.
They are the Divisions of:
Accounting and Auditing;
Consumer Services;
Funeral, Cemetery, and Consumer Services;
Insurance Agent and Agency Services;
Investigative and Forensic Services;
Public Assistance Fraud;
Rehabilitation and Liquidation;
Risk Management;
State Fire Marshal;
Treasury;
Unclaimed Property;
Workers’ Compensation;
Administration; and the
Office of Insurance Consumer Advocate.
Consumer Credit Reports and Scores and Security Freezes
Security Freezes
Section 501.0051, F.S., allows a third party, such as a parent or guardian, to place a security freeze on
a minor child’s credit report, which prohibits a consumer reporting agency from releasing the credit
report, credit score, or any information contained in the consumer report without express authorization
from the parent or guardian.1 Within 10 days of placing a security freeze, a consumer reporting agency
is required to provide the consumer with a unique personal identification number (PIN) that must then
be utilized to request removal of the freeze.2 Current law permits a consumer reporting agency to
charge up to $10 to reissue a lost or misplaced PIN.3
Effect of the Bill
The bill removes a credit reporting agency’s ability to charge a fee to reissue a PIN.
Credit Reports and Scores
Under certain circumstances, insurers are permitted to utilize applicants’ credit reports and scores in
underwriting and rating decisions.4 The insurer must notify applicants that credit reports and scores are
being utilized for these purposes.5 DFS currently offers free financial literacy programs and maintains a
toll-free insurance consumer helpline and a website to assist consumers with insurance questions,
concerns, and complaints.6 Insurers are not required to provide applicants with information regarding
these resources when notifying applicants of the use of their credit reports and scores.
1 S. 501.0051(1), F.S.
2 S. 501.0051(5), F.S.
3 S. 501.0051(9)(b), F.S.
4 See s. 626.9741, F.S.
5 Id.
6 Florida Department of Financial Services (DFS), Agency Analysis of 2021 House Bill 717, p. 3 (Feb. 25, 2021).
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Effect of the Bill
The bill provides that, at the same time that insurers inform consumers of the use of credit reports and
scores for underwriting and rating purposes, the insurers must provide consumers with notification that
DFS offers free financial literacy programs to assist them in understanding how credit scores are
calculated and how credit works.
Companies’ Responses to the Department’s Division of Consumer Services
Current law requires that licensees holding certificates of authority from DFS (agents and agencies) or
the Office of Insurance Regulation (OIR) (insurance companies) must respond to written requests from
DFS’s Division of Consumer Services concerning consumer complaints.7 It does not specifically require
that licensees provide documents in response to such requests.
Effect of the Bill
The bill adds requested documents to the response that a licensee must provide to the Division of
Consumer Services when the division makes a written request to a licensee regarding a consumer
complaint, but specifies that documents need not be released if they are protected by attorney-client or
work-product privilege.
Requirements Placed on Licensees of the Department of Financial Services
Agents, Customer and Service Representatives, Adjusters, Insurance Agencies, Managing General
Agents, and Insurance Adjusting Firms
Section 626.112, F.S., sets forth various requirements that insurance agents, agencies, adjusters,
customer and service representatives, and managing general agents must meet in order to operate
within Florida. In 2017, the legislature passed a law modifying the requirements for licensure for
adjusters, including adjusting firms.8 Prior to 2017, an adjusting firm was required to be licensed only if
it failed to designate a primary adjuster within 30 days of starting the firm or changing the primary
adjuster. Current law still authorizes, but does not require, licensure of adjusting firms.
Although current law provides penalties for acting as an unlicensed insurance agent, adjuster,
customer or service representative, or managing general agent, it does not provide any penalties for
aiding or abetting an unlicensed person in transacting insurance or otherwise engaging in insurance
activities within the state. Additionally, the law does not define the practice of “claims adjusting.”
Effect of the Bill
The bill establishes that no individual or entity may act as an adjusting firm without complying with the
legal requirements for obtaining an adjusting firm license for each location where activity occurs that
only a licensed adjuster may perform. However, a licensed adjusting firm owned and operated by a
single licensed adjuster conducting business in his or her individual name and not employing or using
the services of other licensees is exempt from this requirement. The licensing requirements for an
adjusting firm are essentially notification requirements. An application for licensure as an adjusting firm
requires providing the name of each majority owner, partner, officer, and director of the firm, the home
address of each, and firm’s location. The bill removes the $60 licensure fee. If an adjusting firm is
required to be licensed, but fails to apply for licensure, DFS shall impose on the firm an administrative
penalty of up to $10,000.
The bill provides that any person who knowingly aids or abets an unlicensed person in transacting
insurance or otherwise engaging in insurance activities in Florida without a license commits a third-
degree felony. The bill also defines “claims adjusting” and provides that no person, except a duly
7 S. 624.307(10)(b), F.S.
8 Ch. 2017-147, Laws of Fla.
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licensed attorney exempted under s. 626.860, F.S., or agent exempted under s. 626.862, F.S., shall
provide claims adjusting services unless licensed and appointed as an adjuster.
Grounds for Refusal, Suspension, or Revocation of Agent’s, Adjuster’s, Customer or Service
Representative’s, or Managing General Agent’s License or Appointment
Section 626.621, F.S., provides grounds under which DFS may deny an application for, suspend,
revoke, or refuse to renew or continue the license or appointment of an applicant, agent, adjuster,
customer or service representative, or managing general agent. Currently, these licensees or
appointees are not required to maintain the privacy of consumers’ financial and medical information.
Additionally, Florida law does not provide for administrative action when a person violates Federal
Trade Commission laws regarding telephone solicitation.
Effect of the Bill
The bill adds the following to the grounds for which DFS can deny an application for, suspend, revoke,
or refuse to renew or continue the license or appointment of the above-listed persons:
taking action that allows a consumer’s or customer’s personal financial or medical information to
be made available or accessible to the general public; and
initiating in-person or telephone solicitation after 9 p.m. or before 8 a.m. local time of the
prospective customer unless the prospective customer requests such contact.
Bail Bond Agents
Bail bond agents and temporary bail bond agents must be licensed in order to operate within Florida.
While the law provides for penalties for operating as a bail bond agent or temporary bail bond agent
without a license, it does not currently provide any penalty for a licensee under ch. 648, F.S., who aids
or abets an unlicensed individual to violate the provisions of the chapter.9
Effect of the Bill
The bill provides that any licensee under ch. 648, F.S., who knowingly aids or abets an unlicensed
person in violating the licensure and appointment requirements of the chapter commits a third-degree
felony.
Insurance Agency Names
Florida law permits DFS to disapprove insurance agency names under certain circumstances, including
when the use of those names may mislead the public.10 DFS has concerns that the inclusion of the
words “Medicare” or “Medicaid” in the name of an insurance agency may confuse “vulnerable
consumers” about the nature of the agency, but it lacks the specific authority to disapprove an agency
name that includes those words.11
Effect of the Bill
The bill adds use of the words “Medicare” and “Medicaid” to the grounds for which DFS may
disapprove an insurance agency name. An agency licensed as of July 1, 2021, whose name contains
the word Medicare or Medicaid, may continue to use the name until June 30, 2023, as long as its
license remains valid. A license containing the word Medicare or Medicaid will automatically expire on
July 1, 2023, unless these words are removed.
9 S. 648.30, F.S.
10 S. 626.602, F.S.
11 DFS, supra note 6, at 2.
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Industrial Class Insurers
Industrial class insurers write industrial life insurance policies, which are life insurance policies written
upon individual lives in small amounts for which agents generally collect weekly or monthly premiums.12
In general, the prevalence of industrial life insurance policies has continued to decline. Based upon
data available from DFS, no new industrial life insurance has been written in the past year and few
licensed life insurers continue to maintain industrial life insurance policies.13
Effect of the Bill
The bill amends and repeals the statutes related to industrial class insurers and industrial life insurance
so that no industrial life insurance policy may be sold in Florida after July 1, 2021. The bill has no effect
on industrial life insurance policies that were sold prior to that date and have continued to remain in
force.
Policyholder Rights
Public Adjusters
Public adjusters are regulated under ch. 626, part VI, F.S. Florida law defines a public adjuster as
someone who, for something of value, directly or indirectly, prepares, completes, or files an insurance
claim for an insured or third-party claimant, or who, for something of value, acts on behalf of, or aids, an
insured or third-party claimant in settling a claim for loss or damage covered by an insurance contract,
or who advertises for employment as an adjuster of such claims.14 In general, a claimant executes a
contract for the public adjuster to provide claims adjusting services.15 At present, absent a state of
emergency, such a contract may only be canceled within three days after the latter of the date on which
the contract was executed or within three days after the date on which the claimant has notified the
insurer of the claim.16 During a state of emergency, and for one year after the date of loss, an insured
or claimant has five days after the date on which the contract was executed to cancel the contract
without penalty or obligation.
Public adjusters who have contracted with claimants must also provide to the claimant a written
estimate of loss to assist the claimant with obtaining a claim payment from the insurance company.
According to information received from DFS, following the hurricanes that have affected Florida in
recent years, consumers have complained about claims resolution delays due to the lack of
responsiveness of public adjusters they hired and the inability to cancel contracts they have executed
with these adjusters.17
Effect of the Bill
The bill changes the timeframe for an insured or claimant to cancel a contract with a public adjuster
without penalty or obligation to 10 calendar days, rather than from three business days after the latter
of the date on which the contract was executed or the date on which the insured or claimant has
notified the insurer of the claim. The bill provides that the 10-day timeframe applies regardless of
whether there is a state of emergency.
The bill also provides that the written estimate that the public adjuster must provide to the claimant
must include an itemized per-unit estimate of the repairs, including itemized information on equipment,
materials, labor, and supplies. The written estimate must be provided to the insured within 60 days after
the date the contract is executed. Additionally, the bill prohibits a licensed contractor or subcontractor
from soliciting an insured to file a claim with an insurer.
12 S. 627.502, F.S.
13 DFS, supra note 6, at 5.
14 S. 626.854, F.S.
15 See id.
16 Id.
17 DFS, supra note 6, at 2-3.
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Homeowner Claims Bill of Rights
Section 627.7142, F.S., contains a Homeowner Claims Bill of Rights (Bill of Rights) that insurers
issuing personal lines residential property insurance policies in Florida must provide to policyholders
within 14 days after receiving an initial communication with respect to a claim, unless the claim follows
an event that is the subject of a declaration of a state of emergency by the Governor. While the Bill of
Rights does not contain all of the rights of a policyholder, it is designed to summarize some of the
significant rights, including rights regarding communications from insurers, payments of claims, and
resolution of disputed claims.18 The Bill of Rights contains no requirements that an insurer notify the
policyholder when it assigns a different adjuster to the claim. It does not specify that a policyholder may
be entitled to receive interest from an insurer when the insurer fails to timely fulfill claim obligations.
Furthermore, the Bill of Rights does not mention that a policyholder may take video of damage before
and after repairs in addition to photographs of the damage.
Effect of the Bill
The bill amends the Bill of Rights in the following ways:
states that a policyholder to which the Bill of Rights applies must receive the payment of interest
from the insurance company if the insurance company does not pay full settlement of a claim or
deny the claim within 90 days after the claim is filed; and
clarifies that in addition to photographs, a policyholder may take video of damage before and
after repairs.
The bill requires an insurer to provide the Bill of Rights to a policyholder within 14 days after receiving
an initial claim communication, even during a state of emergency.
Insurer’s Duties to Acknowledge and Investigate Claims
Pursuant to Florida law, residential property insurers have certain obligations regarding the handling of
claims, including responding to communications and timely payment or denial of claims.19 Policyholders
have complained to DFS that repeated changes in adjusters for insurance companies have contributed
to significant delays in the claim handling process.20 In addition, policyholders have indicated that
because of a lack of access to claims information, their insurance agents are not able to respond
claims-related questions in a meaningful way.21
The applicable law neither requires that any licensed adjuster assigned by an insurer to conduct a
physical inspection of damage property provide the policyholder with his or her name, license number,
and contact information, nor requires that the insurer provide a copy of the inspection report to the
policyholder following receipt from the adjuster. There is no statutory requirement that an insurer notify
a policyholder when it has assigned a new adjuster to the policyholder’s claim. Further, the law does
not contain any mandate that the insurer inform the policyholder of the fact that an estimate may be
preliminary in nature and may be revised or the fact that when a partial payment is issued the insurer is
continuing to evaluate a claim and may issue additional payments.
Effect of the Bill
The bill makes the following changes to existing law regarding the investigation and adjusting of
residential property insurance claims:
Changes the timeframe from 10 business days to 14 days from receipt of a proof of loss
statement for an insurer to begin the investigation of a claim.
18 S. 627.7142, F.S.
19 S. 627.70131, F.S.
20 DFS, supra note 6, at 4.
21 Id.
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If an investigation of a claim involves a physical inspection of property, a licensed adjuster
assigned by the insurer must provide a policyholder with his or her name and license number.
Provides that any subsequent communication with the policyholder regarding the claim must
include the name and license number of the adjuster communicating about the claim.
Requires the insurer to maintain a record or log of each adjuster who communicates with the
policyholder and to provide a list of those adjusters to the policyholder, DFS, or OIR upon
request.
When providing a preliminary or partial damage claim estimate or a preliminary or partial claim
payment, an insurer must provide a detailed disclosure as specified in the bill.
The bill provides that the above changes regarding residential property insurance claims shall be
applicable to surplus lines policies in addition to policies written on the admitted market.
Export of Policies to Surplus Lines
Notification of Export
When insurance is not available to Florida consumers from authorized insurance carriers22, it generally
becomes necessary and legally permissible to obtain a policy on the surplus lines market.23 However,
under current surplus lines law, only consumers purchasing commercial insurance policies on the
surplus lines market receive notification at the time of purchase that policies are being issued on that
market.24 Consequently, the first time that some residential policyholders are informed that their policies
have been issued by surplus lines carriers is after their policies have been issued.25 The notification
currently provided to commercial policyholders whose policies are issued on the surplus lines market
also includes the statement that “superior coverage may be available in the admitted market and at a
lesser cost.”26
Effect of the Bill
The bill amends surplus lines law to require that, at the time policies are exported to the surplus lines
market, the notification statement currently signed by consumers whose commercial insurance policies
are being exported to the surplus lines market must be signed, or otherwise acknowledged by all
consumers whose insurance policies are being exported to the surplus lines market. The bill also
replaces the statement “superior coverage may be available in the admitted market and at a lesser
cost,” with “coverage may be available in the admitted market.” Additionally, the notification statement
advises consumers whose policies are being exported that surplus lines carriers are not protected
under the Florida Insurance Guaranty Act in the event of the carrier’s insolvency.
Unfair Methods of Competition and Unfair or Deceptive Acts – Sliding
The Florida Insurance Code prohibits licensees from engaging in unfair methods of competition and
unfair or deceptive acts or practices, including sliding.27 Under Florida law, sliding currently includes:
representing to an applicant that a specific ancillary coverage or product is required by law when it is
not; representing to an applicant that a specific ancillary coverage or product is included in the policy
applied for without an additional charge where there is a charge for it; and charging an applicant for a
specific ancillary coverage or product, in addition to the cost of insurance applied for, without informing
22 Authorized insurance carriers are those who have received a certificate of authority from OIR to transact insurance
business within the state. S. 624.09, F.S.
23 See s. 626.913, F.S.
24 S. 626.916(3)(b)3, F.S.
25 DFS, supra note 6, at 3.
26 S. 626.916(3)(b)3, F.S.
27 S. 626.9541, F.S.
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the applicant.28 According to DFS, some Florida insurers have begun a practice of effectuating entire
policies without informing consumers they have done so.29
Effect of the Bill
The bill adds the following to the list of prohibited conduct that constitutes sliding:
Initiating, effectuating, binding, or otherwise issuing an insurance policy without prior informed
consent from the owner of the property being insured; and
Mailing, transmitting, or otherwise submitting a premium invoice to a mortgagee or escrow
agent in order to effectuate an insurance policy without the prior informed consent from the
owner of the property being insured. However, collateral protection insurance by a mortgagee or
escrow does not constitute sliding.
Foreign Venue Clauses in Property Insurance Policies
Currently, Florida law does not mandate that property claims dispute resolution for policies sold in
Florida, whether such resolution occurs through litigation, arbitration, or mediation, occur within Florida.
Effect of the Bill
The bill provides that no property insurance policy sold in Florida, insuring property located in Florida,
after July 1, 2021, whether issued on the admitted or surplus lines markets, may require that an insured
engage in dispute resolution, through litigation, arbitration, or mediation, outside Florida.
Florida Insurance Guaranty Association Deductible
Under federal law, insurance companies cannot file for bankruptcy.30 Instead, they are either
rehabilitated or liquidated by their state of domicile. Florida law establishes the system for the
treatment of impaired or insolvent insurers31 in Florida and sets up guaranty associations where
necessary.32 Florida operates five guaranty associations including the Florida Insurance Guaranty
Association (FIGA).33
FIGA provides a “mechanism for the payment of covered claims under certain insurance policies to
avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of
the insolvency of an insurer.”34 It issues guaranty fund payments and provides related services for all
lines of property and casualty insurance with certain exceptions.35
When a Florida property and casualty insurer becomes insolvent, FIGA takes over the claims of that
insurer and pays the claims of its policyholders, ensuring that policyholders are not left with unpaid
claims. Florida law provides that FIGA is only obligated to pay the portions of claims made to insolvent
property and casualty insurers, which are in excess of $100, and less than $300,000.36 Under current
law, therefore, there is a $100 deductible on all property and casualty claims covered by FIGA.
Effect of the Bill
28 S. 626.9541(1)(z), F.S.
29 DFS, supra note 6, at 3.
30 11 U.S.C. § 109(b)(2).
31 An “insolvent insurer” means an insurer that was authorized to transact insurance in this state, either at the time the
policy was issued or when the insured event occurred, and against which an order of liquidation with a finding of
insolvency has been entered by a court of competent jurisdiction if such order has become final by the exhaustion of
appellate review. S. 631.904(4), F.S.
32 Ch. 631, F.S.
33 Ch. 631, part II, F.S.
34 S. 631.51, F.S.
35 S. 631.52, F.S.
36 S. 631.57(1), F.S.
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The bill eliminates the $100 deductible on claims paid by FIGA so that such claims will be covered for
any amount exceeding $0 and less than $300,000.
Florida Workers’ Compensation Insurance Guaranty Association
The Florida Workers’ Compensation Insurance Guaranty Association (FWCIGA) was created in 1997
by merging the workers’ compensation account in FIGA with the Florida Self-Insurance Fund Guaranty
Association.37 FWCIGA “provides a mechanism for the payment of covered claims under chapter 440,
F.S., to avoid” delay and financial loss to claimants due to the insolvency of a workers’ compensation
insurer.38 When a workers’ compensation insurer or self-insurance fund becomes insolvent, FWCIGA
takes over the claims of that insurer and pays the claims of its policyholders, ensuring that
policyholders are not left with unpaid claims. Because FWCIGA covers claims for workers’
compensation policies that are in effect on the date of the final order of liquidation, this leaves
policyholders whose policies have lapsed prior to liquidation with unpaid claims.
Effect of the Bill
The bill removes the language “any return of premium resulting from a policy that was not in force on
the date of the final order of liquidation” from the definition of what is excluded as a “covered claim.”
B. SECTION DIRECTORY:
Section 1. Amends s. 501.0051, F.S., relating to protected consumer report security freeze.
Section 2. Amends s. 624.307, F.S., relating to general powers; duties.
Section 3. Amends s. 624.501, F.S., relating to filing, license, appointment, and miscellaneous fees.
Section 4. Amends s. 626.112, F.S., relating to license and appointment required; agents, customer
representatives, adjusters, insurance agencies, service representatives, managing general
agents.
Section 5. Creates s. 626.5813, F.S., relating to claims adjusting.
Section 6. Amends s. 626.602, F.S., relating to insurance agency names; disapproval.
Section 7. Amends s. 626.621, F.S., relating to grounds for discretionary refusal, suspension, or
revocation of agent’s, adjuster’s, customer representative’s, service representative’s, or
managing general agent’s license or appointment.
Section 8. Amends s. 626.782, F.S., relating to “Industrial class insurer” defined.
Section 9. Amends s. 626.783, F.S., relating to “Ordinary-combination class insurer” defined.
Section 10. Repeals s. 626.796, F.S., relating to representing another insurer in same industrial debit
territory.
Section 11. Amends s. 626.854, F.S., relating to “Public adjuster” defined; prohibitions.
Section 12. Amends s. 626.916, F.S., relating to eligibility for export.
Section 13. Amends s. 626.9541, F.S., relating to unfair methods of competition and unfair or
deceptive acts or practices defined.
Section 14. Amends s. 626.9741, F.S., relating to use of credit reports and credit scores by insurers.
37 Ch. 97-262, Laws of Fla.
38 S. 631.902, F.S.
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Section 15. Amends s. 626.9953, F.S. to conform cross-references.
Section 16. Amends s. 626.9957, F.S., to conform cross-references.
Section 17. Amends s. 627.062, F.S., to conform cross-references.
Section 18. Amends s. 627.502, F.S., relating to “Industrial life insurance”; defined; reporting.
Section 19. Amends s. 627.70131, F.S., relating to insurer’s duty to acknowledge communications
regarding claims; investigation.
Section 20. Creates s. 627.7031, relating to foreign venue clauses prohibited.
Section 21. Amends s. 627.7142, F.S., relating to Homeowner Claims Bill of Rights.
Section 22. Amends s. 631.57, F.S., relating to powers and duties of the association.
Section 23. Amends s. 631.904, F.S., relating to definitions.
Section 24. Amends s. 648.30, F.S., relating to licensure and appointment required.
Section 25. Provides an effective date of upon becoming law, except as otherwise provided.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
The bill has the potential to result in increased revenues for DFS in the form of administrative fines
imposed on adjusting firms for violations of ss. 624.307 and 626.112, F.S. The increase may be
offset by a simultaneous decrease in fines against individual adjusters, since DFS will have
authority to levy fines against the firm instead of the individual.39
2. Expenditures:
The bill has an insignificant fiscal impact on DFS. Changes to DFS’s licensing system for adjusting
firms to be licensed in Florida will have a minimal negative fiscal impact on the Insurance
Regulatory Trust Fund.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
39 Email from Meredith Stanfield, Director of Legislative and Cabinet Affairs, Department of Financial Services, RE: HB
717 Fiscal, (Mar. 9, 2021).
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The bill may have positive economic impacts for consumers. It removes fees charged by consumer
reporting agencies for the reissuance of PINs and eliminates the $100 deductible FIGA charges for
covered claims.
The bill has potential negative direct economic impacts on the private sector. The inability of a
consumer reporting agency to charge fees to reissue PINs will result in an indeterminate decrease in
revenues for consumer reporting agencies. Adjusting firms will no longer be subject to the $60
licensure fee but could be assessed administrative fines up $10,000 for violations of ss. 624.307 and
626.112, F.S.
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:
Section 1 of the bill, amending s. 501.0051, F.S., may be federally preempted to the extent it prohibits
one of the national consumer reporting agencies (Experian, Equifax, and Trans Union) from charging a
fee to reissue a PIN to remove a security freeze.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On March 4, 2021, the Insurance & Banking Subcommittee considered the bill, adopted two amendments, and
reported the bill favorably as a committee substitute. One amendment removed the $60 licensure fee for
insurance adjusting firms. The second amendment exempted “agents” from the adjuster licensure requirement
in the new section that clarifies what constitutes claims adjusting for the purpose of licensure as a claims
adjuster.
The analysis is drafted to the committee substitute as passed by the Insurance & Banking 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 717 2021
1 A bill to be entitled
2 An act relating to consumer protection; amending s.
3 501.0051, F.S.; prohibiting consumer reporting
4 agencies from charging to reissue or provide a new
5 unique personal identifier to certain consumers,
6 rather than authorizing such agencies to charge the
7 customers' representatives; amending s. 624.307, F.S.;
8 revising a requirement for persons licensed or
9 authorized by the Department of Financial Services or
10 the Office of Insurance Regulation to respond to the
11 department's Division of Consumer Services regarding
12 consumer complaints; amending s. 624.501, F.S.;
13 deleting a fee for adjusting firm licenses; amending
14 s. 626.112, F.S.; removing a provision requiring the
15 department to automatically convert registrations of
16 approved registered insurance agencies to insurance
17 agency licenses; prohibiting unlicensed activity by an
18 adjusting firm unless the firm complies with a
19 specified requirement; providing an exemption;
20 providing an exemption from licensure for branch firms
21 that meet certain criteria; providing an
22 administrative penalty for failing to apply for
23 certain licensure; providing a criminal penalty for
24 aiding or abetting unlicensed activity; creating s.
25 626.5813, F.S.; defining the term "claims adjusting";
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26 prohibiting a person from providing claims adjusting
27 services unless the person meets specified
28 requirements; amending s. 626.602, F.S.; authorizing
29 the department to disapprove the use of insurance
30 agency names containing the words "Medicare" or
31 "Medicaid"; providing a time-limited exception for
32 certain insurance agencies; prohibiting relicensing of
33 insurance agencies using such names; providing for
34 future expiration of such licenses; providing an
35 exception from future expiration; amending s. 626.621,
36 F.S.; adding grounds on which the department may take
37 certain actions against a license, appointment, or
38 application of certain insurance representatives;
39 amending ss. 626.782 and 626.783, F.S.; revising the
40 definitions of the terms "industrial class insurer"
41 and "ordinary-combination class insurer,"
42 respectively, to conform to changes made by the act;
43 repealing s. 626.796, F.S., relating to the
44 representation of multiple insurers in the same
45 industrial debit territory; amending s. 626.854, F.S.;
46 revising the timeframes in which an insured or
47 claimant may cancel a public adjuster's contract to
48 adjust a claim without penalty or obligation;
49 requiring that certain public adjuster's contracts
50 include a specified disclosure; specifying
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51 requirements for written estimates of loss provided by
52 public adjusters to claimants or insureds; prohibiting
53 licensed contractors and subcontractors from engaging
54 in certain activities unless licensed and compliant as
55 public adjusters; amending s. 626.916, F.S.; providing
56 a disclosure requirement that an insurance coverage
57 must meet before being eligible for export under the
58 Surplus Lines Law; amending s. 626.9541, F.S.; adding
59 certain acts or practices to the definition of the
60 term "sliding" as unfair methods of competition and
61 unfair or deceptive acts; amending s. 626.9741, F.S.;
62 requiring an insurer's notification regarding certain
63 credit report or score information to include
64 specified language under certain circumstances;
65 amending ss. 626.9953, 626.9957, and 627.062, F.S.;
66 conforming cross-references; amending s. 627.502,
67 F.S.; prohibiting a life insurer from writing new
68 policies of industrial life insurance beginning on a
69 certain date; amending s. 627.70131, F.S.; providing
70 that communication made to or by an insurer's
71 representative, rather than to or by an insurer's
72 agent, constitutes communication to or by the insurer;
73 replacing the defined term "agent" with the term
74 "representative"; revising the timeframe in which an
75 insurer must begin an investigation after receipt of
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76 proof of loss statements; requiring an insurer-
77 assigned licensed adjuster to provide the policyholder
78 with certain information; specifying information that
79 must be included in certain communication with the
80 policyholder regarding a claim; requiring an insurer
81 to keep records of the licensed adjusters interacting
82 with policyholders; requiring an insurer to establish
83 a process to provide the policyholder, the office, or
84 the department with a list of adjusters associated
85 with a claim; requiring an insurer to include
86 specified notices when providing preliminary or
87 partial damage estimates or claim payments; providing
88 applicability; creating s. 627.7031, F.S.; prohibiting
89 foreign venue clauses in property insurance policies;
90 providing applicability; amending s. 627.7142, F.S.;
91 revising circumstances under which an insurer must
92 provide a Homeowner Claims Bill of Rights to a
93 policyholder; revising information contained in the
94 Homeowner Claims Bill of Rights; conforming provisions
95 to changes made by the act; amending s. 631.57, F.S.;
96 deleting a deductible on the obligation of the Florida
97 Insurance Guaranty Association, Incorporated, as to
98 certain covered claims; amending s. 631.904, F.S.;
99 revising the definition of the term "covered claim" to
100 exclude certain premium returns; amending s. 648.30,
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101 F.S.; providing penalties for a licensed bail bond
102 agent or temporary bail bond agent who knowingly
103 engages in certain activities; providing effective
104 dates.
105
106 Be It Enacted by the Legislature of the State of Florida:
107
108 Section 1. Paragraph (b) of subsection (9) of section
109 501.0051, Florida Statutes, is amended to read:
110 501.0051 Protected consumer report security freeze.—
111 (9)
112 (b) A consumer reporting agency may not charge to a
113 reasonable fee, not to exceed $10, if the representative fails
114 to retain the original unique personal identifier provided by
115 the consumer reporting agency and the agency must reissue the
116 unique personal identifier or provide a new unique personal
117 identifier to the protected consumer representative.
118 Section 2. Paragraph (b) of subsection (10) of section
119 624.307, Florida Statutes, is amended to read:
120 624.307 General powers; duties.—
121 (10)
122 (b) Any person licensed or issued a certificate of
123 authority by the department or the office shall respond, in
124 writing, to the division within 20 days after receipt of a
125 written request for documents and information from the division
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126 concerning a consumer complaint. The response must address the
127 issues and allegations raised in the complaint and include any
128 requested documents concerning the consumer complaint that are
129 not subject to attorney-client or work-product privilege. The
130 division may impose an administrative penalty for failure to
131 comply with this paragraph of up to $2,500 per violation upon
132 any entity licensed by the department or the office and $250 for
133 the first violation, $500 for the second violation, and up to
134 $1,000 for the third or subsequent violation upon any individual
135 licensed by the department or the office.
136 Section 3. Subsection (20) of section 624.501, Florida
137 Statutes, is amended to read:
138 624.501 Filing, license, appointment, and miscellaneous
139 fees.—The department, commission, or office, as appropriate,
140 shall collect in advance, and persons so served shall pay to it
141 in advance, fees, licenses, and miscellaneous charges as
142 follows:
143 (20) Adjusting firm, original or renewal 3-year license....
144 $60.00
145 Section 4. Subsection (9) of section 626.112, Florida
146 Statutes, is renumbered as subsection (10), paragraph (d) of
147 subsection (7) and present subsection (9) are amended, and a new
148 subsection (9) is added to that section, to read:
149 626.112 License and appointment required; agents, customer
150 representatives, adjusters, insurance agencies, service
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151 representatives, managing general agents, adjusting firms.—
152 (7)
153 (d) Effective October 1, 2015, the department must
154 automatically convert the registration of an approved registered
155 insurance agency to an insurance agency license.
156 (9)(a) An individual, firm, partnership, corporation,
157 association, or other entity may not act in its own name or
158 under a trade name, directly or indirectly, as an adjusting firm
159 unless it complies with s. 626.8696 with respect to possessing
160 an adjusting firm license for each place of business at which it
161 engages in an activity that may be performed only by a licensed
162 insurance adjuster. However, an adjusting firm that is owned and
163 operated by a single licensed adjuster conducting business in
164 his or her individual name and not employing or otherwise using
165 the services of or appointing other licensees is exempt from the
166 adjusting firm licensing requirements of this paragraph.
167 (b) A branch place of business that is established by a
168 licensed adjusting firm is considered a branch firm and is not
169 required to be licensed if:
170 1. It transacts business under the same name and federal
171 tax identification number as the licensed adjusting firm;
172 2. It has designated with the department a primary
173 adjuster operating the location as required by s. 626.8695; and
174 3. The address and telephone number of the branch location
175 have been submitted to the department for inclusion in the
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176 licensing record of the licensed adjusting firm within 30 days
177 after insurance transactions begin at the branch location.
178 (c) If an adjusting firm is required to be licensed but
179 fails to file an application for licensure in accordance with
180 this section, the department shall impose on the firm an
181 administrative penalty of up to $10,000.
182 (10)(9) Any person who knowingly transacts insurance or
183 otherwise engages in insurance activities in this state without
184 a license in violation of this section or who knowingly aids or
185 abets an unlicensed person in transacting insurance or otherwise
186 engaging in insurance activities in this state without a license
187 commits a felony of the third degree, punishable as provided in
188 s. 775.082, s. 775.083, or s. 775.084.
189 Section 5. Section 626.5813, Florida Statutes, is created
190 to read:
191 626.5813 Claims adjusting.—
192 (1)(a) As used in this section, the term "claims
193 adjusting" means directly or indirectly:
194 1. Attempting or undertaking to ascertain and determine
195 the amount of any claim, loss, or damage payable under an
196 insurance contract or undertaking to negotiate or effect
197 settlement of a claim, loss, or damage under an insurance
198 contract, if such action results in payment to or receipt of
199 money, commission, or any other thing of value by the party or
200 parties rendering such service or persons affiliated with such
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201 party or parties; or
202 2. Soliciting services as described in subparagraph 1. or
203 soliciting an insured or policyholder to file an insurance
204 claim.
205 (b) The term does not include:
206 1. Paid services as a spokesperson used as part of a
207 written or an electronic advertisement.
208 2. Paid services as a photographer or videographer used to
209 capture images of damage.
210 3. Paid services to inventory personal property or
211 business personal property.
212 4. Discussion or explanation of a bid for construction or
213 repair services by a licensed contractor under part I of chapter
214 489, or a subcontractor for a licensed contractor, with a
215 property owner or the insurer of such property.
216 (2) Except for a duly licensed attorney at law as exempted
217 under s. 626.860 or an agent as exempted under s. 626.862, a
218 person may not provide claims adjusting services unless licensed
219 and appointed as an adjuster under this part.
220 Section 6. Subsection (4) is added to section 626.602,
221 Florida Statutes, to read:
222 626.602 Insurance agency names; disapproval.—The
223 department may disapprove the use of any true or fictitious
224 name, other than the bona fide natural name of an individual, by
225 any insurance agency on any of the following grounds:
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226 (4) The name contains the word "Medicare" or "Medicaid."
227 An agency whose name contains the word "Medicare" or "Medicaid"
228 but which is licensed as of July 1, 2021, may continue to use
229 that name until June 30, 2023, as long as the agency's license
230 remains valid. If the agency's license expires or is suspended
231 or revoked, the agency may not be relicensed using that name.
232 Licenses containing either of these words automatically expire
233 on July 1, 2023, unless these words are removed from the name.
234 Section 7. Subsections (16) and (17) are added to section
235 626.621, Florida Statutes, to read:
236 626.621 Grounds for discretionary refusal, suspension, or
237 revocation of agent's, adjuster's, customer representative's,
238 service representative's, or managing general agent's license or
239 appointment.—The department may, in its discretion, deny an
240 application for, suspend, revoke, or refuse to renew or continue
241 the license or appointment of any applicant, agent, adjuster,
242 customer representative, service representative, or managing
243 general agent, and it may suspend or revoke the eligibility to
244 hold a license or appointment of any such person, if it finds
245 that as to the applicant, licensee, or appointee any one or more
246 of the following applicable grounds exist under circumstances
247 for which such denial, suspension, revocation, or refusal is not
248 mandatory under s. 626.611:
249 (16) Taking an action that allows the personal financial
250 or medical information of a consumer or customer to be made
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251 available or accessible to the general public, regardless of the
252 format in which the record is stored.
253 (17) Initiating in-person or telephone solicitation after
254 9 p.m. or before 8 a.m. local time of the prospective customer
255 unless requested by the prospective customer.
256 Section 8. Section 626.782, Florida Statutes, is amended
257 to read:
258 626.782 "Industrial class insurer" defined.—An "industrial
259 class insurer" is an insurer collecting premiums on policies of
260 writing industrial life insurance, as defined in s. 627.502,
261 written before July 1, 2021, and as to such insurance, operates
262 under a system of collecting a debit by its agent.
263 Section 9. Section 626.783, Florida Statutes, is amended
264 to read:
265 626.783 "Ordinary-combination class insurer" defined.—An
266 "ordinary-combination class insurer" is an insurer writing both
267 ordinary class insurance and collecting premiums on existing
268 industrial life class insurance under s. 626.782.
269 Section 10. Section 626.796, Florida Statutes, is
270 repealed.
271 Section 11. Subsections (6), (11), and (15) of section
272 626.854, Florida Statutes, are amended to read:
273 626.854 "Public adjuster" defined; prohibitions.—The
274 Legislature finds that it is necessary for the protection of the
275 public to regulate public insurance adjusters and to prevent the
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276 unauthorized practice of law.
277 (6) An insured or claimant may cancel a public adjuster's
278 contract to adjust a claim without penalty or obligation within
279 10 calendar 3 business days after the date on which the contract
280 is executed or within 3 business days after the date on which
281 the insured or claimant has notified the insurer of the claim,
282 whichever is later. The public adjuster's contract must contain
283 the following language in minimum 18-point bold type: "You, the
284 insured, may cancel this contract for any reason without penalty
285 or obligation to you within 10 days after the date of this
286 contract by providing notice to (name of public adjuster) ,
287 submitted in writing and sent by certified mail, return receipt
288 requested, or other form of mailing that provides proof thereof,
289 at the address specified in the contract." disclose to the
290 insured or claimant his or her right to cancel the contract and
291 advise the insured or claimant that notice of cancellation must
292 be submitted in writing and sent by certified mail, return
293 receipt requested, or other form of mailing that provides proof
294 thereof, to the public adjuster at the address specified in the
295 contract; provided, during any state of emergency as declared by
296 the Governor and for 1 year after the date of loss, the insured
297 or claimant has 5 business days after the date on which the
298 contract is executed to cancel a public adjuster's contract.
299 (11) Each public adjuster must provide to the claimant or
300 insured a written estimate of the loss to assist in the
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301 submission of a proof of loss or any other claim for payment of
302 insurance proceeds within 60 days after the date of the public
303 adjuster's contract. The written estimate must include an
304 itemized, per-unit estimate of the repairs, including itemized
305 information on equipment, materials, labor, and supplies, in
306 accordance with accepted industry standards. The public adjuster
307 shall retain such written estimate for at least 5 years and
308 shall make the estimate available to the claimant or insured,
309 the insurer, and the department upon request.
310 (15) A licensed contractor under part I of chapter 489, or
311 a subcontractor, may not adjust a claim on behalf of an insured,
312 or solicit an insured to file an insurance claim, unless
313 licensed and compliant as a public adjuster under this chapter.
314 However, the contractor may discuss or explain a bid for
315 construction or repair of covered property with the residential
316 property owner who has suffered loss or damage covered by a
317 property insurance policy, or the insurer of such property, if
318 the contractor is doing so for the usual and customary fees
319 applicable to the work to be performed as stated in the contract
320 between the contractor and the insured.
321 Section 12. Effective January 1, 2022, subsection (3) of
322 section 626.916, Florida Statutes, is amended, and paragraph (f)
323 is added to subsection (1) of that section, to read:
324 626.916 Eligibility for export.—
325 (1) No insurance coverage shall be eligible for export
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326 unless it meets all of the following conditions:
327 (f) The insured has signed or otherwise provided
328 documented acknowledgment of a disclosure in substantially the
329 following form: "You are agreeing to place coverage in the
330 surplus lines market. Coverage may be available in the admitted
331 market. Persons insured by surplus lines carriers are not
332 protected under the Florida Insurance Guaranty Act with respect
333 to any right of recovery for the obligation of an insolvent
334 unlicensed insurer."
335 (3)(a) Subsection (1) does not apply to wet marine and
336 transportation or aviation risks that which are subject to s.
337 626.917.
338 (b) Paragraphs (1)(a)-(d) do not apply to classes of
339 insurance which are subject to s. 627.062(3)(d)1. These classes
340 may be exportable under the following conditions:
341 1. The insurance must be placed only by or through a
342 surplus lines agent licensed in this state;
343 2. The insurer must be made eligible under s. 626.918; and
344 3. The insured has complied with paragraph (1)(f) must
345 sign a disclosure that substantially provides the following:
346 "You are agreeing to place coverage in the surplus lines market.
347 Superior coverage may be available in the admitted market and at
348 a lesser cost. Persons insured by surplus lines carriers are not
349 protected under the Florida Insurance Guaranty Act with respect
350 to any right of recovery for the obligation of an insolvent
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351 unlicensed insurer." If the disclosure in paragraph (1)(f)
352 notice is signed by the insured, the insured is presumed to have
353 been informed and to know that other coverage may be available,
354 and, with respect to the diligent-effort requirement under
355 subsection (1), there is no liability on the part of, and no
356 cause of action arises against, the retail agent presenting the
357 form.
358 Section 13. Paragraph (z) of subsection (1) of section
359 626.9541, Florida Statutes, is amended to read:
360 626.9541 Unfair methods of competition and unfair or
361 deceptive acts or practices defined.—
362 (1) UNFAIR METHODS OF COMPETITION AND UNFAIR OR DECEPTIVE
363 ACTS.—The following are defined as unfair methods of competition
364 and unfair or deceptive acts or practices:
365 (z) Sliding.—Sliding is the act or practice of any of the
366 following:
367 1. Representing to the applicant that a specific ancillary
368 coverage or product is required by law in conjunction with the
369 purchase of insurance when such coverage or product is not
370 required.;
371 2. Representing to the applicant that a specific ancillary
372 coverage or product is included in the policy applied for
373 without an additional charge when such charge is required.; or
374 3. Charging an applicant for a specific ancillary coverage
375 or product, in addition to the cost of the insurance coverage
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376 applied for, without the informed consent of the applicant.
377 4. Initiating, effectuating, binding, or otherwise issuing
378 a policy of insurance without the prior informed consent of the
379 owner of the property to be insured.
380 5. Mailing, transmitting, or otherwise submitting by any
381 means an invoice for premium payment to a mortgagee or escrow
382 agent for the purpose of effectuating an insurance policy,
383 without the prior informed consent of the owner of the property
384 to be insured. However, this subparagraph does not apply in
385 cases where the mortgagee or escrow agent is renewing insurance
386 or issuing collateral protection insurance, as defined in s.
387 624.6085, pursuant to the mortgage or other pertinent loan
388 documents or communications regarding the property.
389 Section 14. Effective January 1, 2022, subsection (3) of
390 section 626.9741, Florida Statutes, is amended to read:
391 626.9741 Use of credit reports and credit scores by
392 insurers.—
393 (3) An insurer must inform an applicant or insured, in the
394 same medium as the application is taken, that a credit report or
395 score is being requested for underwriting or rating purposes.
396 The notification to the applicant or insured must include the
397 following language: "The Department of Financial Services offers
398 free financial literacy programs to assist you with insurance-
399 related questions, including how credit works and how credit
400 scores are calculated. To learn more, visit
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401 www.myfloridacfo.com." An insurer that makes an adverse decision
402 based, in whole or in part, upon a credit report must provide at
403 no charge, a copy of the credit report to the applicant or
404 insured or provide the applicant or insured with the name,
405 address, and telephone number of the consumer reporting agency
406 from which the insured or applicant may obtain the credit
407 report. The insurer must provide notification to the consumer
408 explaining the reasons for the adverse decision. The reasons
409 must be provided in sufficiently clear and specific language so
410 that a person can identify the basis for the insurer's adverse
411 decision. Such notification must shall include a description of
412 the four primary reasons, or such fewer number as existed, which
413 were the primary influences of the adverse decision. The use of
414 generalized terms such as "poor credit history," "poor credit
415 rating," or "poor insurance score" does not meet the explanation
416 requirements of this subsection. A credit score may not be used
417 in underwriting or rating insurance unless the scoring process
418 produces information in sufficient detail to permit compliance
419 with the requirements of this subsection. It is shall not be
420 deemed an adverse decision if, due to the insured's credit
421 report or credit score, the insured continues to receive a less
422 favorable rate or placement in a less favorable tier or company
423 at the time of renewal except for renewals or reunderwriting
424 required by this section.
425 Section 15. Subsection (5) of section 626.9953, Florida
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426 Statutes, is amended to read:
427 626.9953 Qualifications for registration; application
428 required.—
429 (5) An applicant must submit a set of his or her
430 fingerprints to the department and pay the processing fee
431 established under s. 624.501(23) s. 624.501(24). The department
432 shall submit the applicant's fingerprints to the Department of
433 Law Enforcement for processing state criminal history records
434 checks and local criminal records checks through local law
435 enforcement agencies and for forwarding to the Federal Bureau of
436 Investigation for national criminal history records checks. The
437 fingerprints shall be taken by a law enforcement agency, a
438 designated examination center, or another department-approved
439 entity. The department may not approve an application for
440 registration as a navigator if fingerprints have not been
441 submitted.
442 Section 16. Subsection (1) of section 626.9957, Florida
443 Statutes, is amended to read:
444 626.9957 Conduct prohibited; denial, revocation, or
445 suspension of registration.—
446 (1) As provided in s. 626.112, only a person licensed as
447 an insurance agent or customer representative may engage in the
448 solicitation of insurance. A person who engages in the
449 solicitation of insurance as described in s. 626.112(1) without
450 such license is subject to the penalties provided under s.
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451 626.112(10) s. 626.112(9).
452 Section 17. Subsection (10) of section 627.062, Florida
453 Statutes, is amended to read:
454 627.062 Rate standards.—
455 (10) Any interest paid pursuant to s. 627.70131(7) s.
456 627.70131(5) may not be included in the insurer's rate base and
457 may not be used to justify a rate or rate change.
458 Section 18. Section 627.502, Florida Statutes, is amended
459 to read:
460 627.502 "Industrial life insurance" defined; reporting;
461 prohibition on new policies after a certain date.—
462 (1) For the purposes of this code, "industrial life
463 insurance" is that form of life insurance written under policies
464 under which premiums are payable monthly or more often, bearing
465 the words "industrial policy" or "weekly premium policy" or
466 words of similar import imprinted upon the policies as part of
467 the descriptive matter, and issued by an insurer that which, as
468 to such industrial life insurance, is operating under a system
469 of collecting a debit by its agent.
470 (2) Every life insurer servicing existing transacting
471 industrial life insurance shall report to the office all annual
472 statement data regarding the exhibit of life insurance,
473 including relevant information for industrial life insurance.
474 (3) Beginning July 1, 2021, a life insurer may not write a
475 new policy of industrial life insurance.
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476 Section 19. Effective January 1, 2022, section 627.70131,
477 Florida Statutes, is amended to read:
478 627.70131 Insurer's duty to acknowledge communications
479 regarding claims; investigation.—
480 (1)(a) Upon an insurer's receiving a communication with
481 respect to a claim, the insurer shall, within 14 calendar days,
482 review and acknowledge receipt of such communication unless
483 payment is made within that period of time or unless the failure
484 to acknowledge is caused by factors beyond the control of the
485 insurer which reasonably prevent such acknowledgment. If the
486 acknowledgment is not in writing, a notification indicating
487 acknowledgment shall be made in the insurer's claim file and
488 dated. A communication made to or by a representative an agent
489 of an insurer with respect to a claim shall constitute
490 communication to or by the insurer.
491 (b) As used in this subsection, the term "representative"
492 "agent" means any person to whom an insurer has granted
493 authority or responsibility to receive or make such
494 communications with respect to claims on behalf of the insurer.
495 (c) This subsection does shall not apply to claimants
496 represented by counsel beyond those communications necessary to
497 provide forms and instructions.
498 (2) Such acknowledgment shall be responsive to the
499 communication. If the communication constitutes a notification
500 of a claim, unless the acknowledgment reasonably advises the
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501 claimant that the claim appears not to be covered by the
502 insurer, the acknowledgment shall provide necessary claim forms,
503 and instructions, including an appropriate telephone number.
504 (3)(a) Unless otherwise provided by the policy of
505 insurance or by law, within 14 10 working days after an insurer
506 receives proof of loss statements, the insurer shall begin such
507 investigation as is reasonably necessary unless the failure to
508 begin such investigation is caused by factors beyond the control
509 of the insurer which reasonably prevent the commencement of such
510 investigation.
511 (b) If such investigation involves a physical inspection
512 of the property, the licensed adjuster assigned by the insurer
513 must provide the policyholder with a printed or electronic
514 document containing his or her name and license number.
515 (c) Any subsequent communication with the policyholder
516 regarding the claim must also include the name and license
517 number of the adjuster communicating about the claim.
518 Communication of the adjuster's name and license number may be
519 included along with other information already being provided to
520 the policyholder.
521 (4) An insurer shall maintain a record or log of each
522 adjuster who communicates with the policyholder as provided in
523 paragraphs (3)(b) and (3)(c), and shall provide a list of the
524 adjusters to the policyholder, the office, or the department
525 upon request.
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526 (5) For purposes of this section, the term "insurer" means
527 any residential property insurer.
528 (6)(a) When providing a preliminary or partial estimate of
529 damage regarding a claim, an insurer shall include with the
530 estimate the following statement printed in at least 12-point
531 bold, uppercase type: THIS ESTIMATE REPRESENTS OUR CURRENT
532 EVALUATION OF THE COVERED DAMAGES TO YOUR INSURED PROPERTY AND
533 MAY BE REVISED AS WE CONTINUE TO EVALUATE YOUR CLAIM. IF YOU
534 HAVE QUESTIONS, CONCERNS, OR ADDITIONAL INFORMATION REGARDING
535 YOUR CLAIM, WE ENCOURAGE YOU TO CONTACT US.
536 (b) When providing a payment on a claim which is not the
537 full and final payment for the claim, an insurer shall include
538 with the payment the following statement printed in at least 12-
539 point bold, uppercase type: WE ARE CONTINUING TO EVALUATE YOUR
540 CLAIM INVOLVING YOUR INSURED PROPERTY AND MAY ISSUE ADDITIONAL
541 PAYMENTS. IF YOU HAVE QUESTIONS, CONCERNS, OR ADDITIONAL
542 INFORMATION REGARDING YOUR CLAIM, WE ENCOURAGE YOU TO CONTACT
543 US.
544 (7)(a)(5)(a) Within 90 days after an insurer receives
545 notice of an initial, reopened, or supplemental property
546 insurance claim from a policyholder, the insurer shall pay or
547 deny such claim or a portion of the claim unless the failure to
548 pay is caused by factors beyond the control of the insurer which
549 reasonably prevent such payment. Any payment of an initial or
550 supplemental claim or portion of such claim made 90 days after
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551 the insurer receives notice of the claim, or made more than 15
552 days after there are no longer factors beyond the control of the
553 insurer which reasonably prevented such payment, whichever is
554 later, bears interest at the rate set forth in s. 55.03.
555 Interest begins to accrue from the date the insurer receives
556 notice of the claim. The provisions of this subsection may not
557 be waived, voided, or nullified by the terms of the insurance
558 policy. If there is a right to prejudgment interest, the insured
559 shall select whether to receive prejudgment interest or interest
560 under this subsection. Interest is payable when the claim or
561 portion of the claim is paid. Failure to comply with this
562 subsection constitutes a violation of this code. However,
563 failure to comply with this subsection does not form the sole
564 basis for a private cause of action.
565 (b) Notwithstanding subsection (5) (4), for purposes of
566 this subsection, the term "claim" means any of the following:
567 1. A claim under an insurance policy providing residential
568 coverage as defined in s. 627.4025(1);
569 2. A claim for structural or contents coverage under a
570 commercial property insurance policy if the insured structure is
571 10,000 square feet or less; or
572 3. A claim for contents coverage under a commercial tenant
573 policy if the insured premises is 10,000 square feet or less.
574 (c) This subsection does shall not apply to claims under
575 an insurance policy covering nonresidential commercial
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576 structures or contents in more than one state.
577 (8) This section also applies to surplus lines insurers
578 and to surplus lines insurance authorized under ss. 626.913-
579 626.937 providing residential coverage.
580 Section 20. Section 627.7031, Florida Statutes, is created
581 to read:
582 627.7031 Foreign venue clauses prohibited.—After July 1,
583 2021, a personal residential property insurance policy sold in
584 the state and insuring only real property located in the state
585 may not require an insured to pursue dispute resolution through
586 litigation, arbitration, or mediation outside the state. This
587 section also applies to surplus lines insurers and to surplus
588 lines insurance authorized under ss. 626.913-626.937.
589 Section 21. Effective January 1, 2022, section 627.7142,
590 Florida Statutes, is amended to read:
591 627.7142 Homeowner Claims Bill of Rights.—An insurer
592 issuing a personal lines residential property insurance policy
593 in this state must provide a Homeowner Claims Bill of Rights to
594 a policyholder within 14 days after receiving an initial
595 communication with respect to a claim, unless the claim follows
596 an event that is the subject of a declaration of a state of
597 emergency by the Governor. The purpose of the bill of rights is
598 to summarize, in simple, nontechnical terms, existing Florida
599 law regarding the rights of a personal lines residential
600 property insurance policyholder who files a claim of loss. The
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601 Homeowner Claims Bill of Rights is specific to the claims
602 process and does not represent all of a policyholder's rights
603 under Florida law regarding the insurance policy. The Homeowner
604 Claims Bill of Rights does not create a civil cause of action by
605 any individual policyholder or class of policyholders against an
606 insurer or insurers. The failure of an insurer to properly
607 deliver the Homeowner Claims Bill of Rights is subject to
608 administrative enforcement by the office but is not admissible
609 as evidence in a civil action against an insurer. The Homeowner
610 Claims Bill of Rights does not enlarge, modify, or contravene
611 statutory requirements, including, but not limited to, ss.
612 626.854, 626.9541, 627.70131, 627.7015, and 627.7074, and does
613 not prohibit an insurer from exercising its right to repair
614 damaged property in compliance with the terms of an applicable
615 policy or ss. 627.7011(5)(e) and 627.702(7). The Homeowner
616 Claims Bill of Rights must state:
617
618 HOMEOWNER CLAIMS
619 BILL OF RIGHTS
620 This Bill of Rights is specific to the claims process and does
621 not represent all of your rights under Florida law regarding
622 your policy. There are also exceptions to the stated timelines
623 when conditions are beyond your insurance company's control.
624 This document does not create a civil cause of action by an
625 individual policyholder, or a class of policyholders, against an
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626 insurer or insurers and does not prohibit an insurer from
627 exercising its right to repair damaged property in compliance
628 with the terms of an applicable policy.
629
630 YOU HAVE THE RIGHT TO:
631 1. Receive from your insurance company an acknowledgment
632 of your reported claim within 14 days after the time you
633 communicated the claim.
634 2. Upon written request, receive from your insurance
635 company within 30 days after you have submitted a complete
636 proof-of-loss statement to your insurance company, confirmation
637 that your claim is covered in full, partially covered, or
638 denied, or receive a written statement that your claim is being
639 investigated.
640 3. Within 90 days, subject to any dual interest noted in
641 the policy, receive full settlement payment for your claim or
642 payment of the undisputed portion of your claim, or your
643 insurance company's denial of your claim.
644 4. Receive payment of interest, as provided in section
645 627.70131, Florida Statutes, from your insurance company, which
646 begins accruing from the date your claim is filed if your
647 insurance company does not pay full settlement of your initial,
648 reopened, or supplemental claim or the undisputed portion of
649 your claim or does not deny your claim within 90 days after your
650 claim is filed. The interest, if applicable, must be paid when
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651 your claim or undisputed portion of your claim is paid.
652 5.4. Have free mediation of your disputed claim by the
653 Florida Department of Financial Services, Division of Consumer
654 Services, under most circumstances and subject to certain
655 restrictions.
656 6.5. Have neutral evaluation of your disputed claim, if
657 your claim is for damage caused by a sinkhole and is covered by
658 your policy.
659 7.6. Contact the Florida Department of Financial Services,
660 Division of Consumer Services' toll-free helpline for assistance
661 with any insurance claim or questions pertaining to the handling
662 of your claim. You can reach the Helpline by phone at...(toll-
663 free phone number)..., or you can seek assistance online at the
664 Florida Department of Financial Services, Division of Consumer
665 Services' website at...(website address)....
666
667 YOU ARE ADVISED TO:
668 1. Contact your insurance company before entering into any
669 contract for repairs to confirm any managed repair policy
670 provisions or optional preferred vendors.
671 2. Make and document emergency repairs that are necessary
672 to prevent further damage. Keep the damaged property, if
673 feasible, keep all receipts, and take photographs or video of
674 damage before and after any repairs to provide to your insurer.
675 3. Carefully read any contract that requires you to pay
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676 out-of-pocket expenses or a fee that is based on a percentage of
677 the insurance proceeds that you will receive for repairing or
678 replacing your property.
679 4. Confirm that the contractor you choose is licensed to
680 do business in Florida. You can verify a contractor's license
681 and check to see if there are any complaints against him or her
682 by calling the Florida Department of Business and Professional
683 Regulation. You should also ask the contractor for references
684 from previous work.
685 5. Require all contractors to provide proof of insurance
686 before beginning repairs.
687 6. Take precautions if the damage requires you to leave
688 your home, including securing your property and turning off your
689 gas, water, and electricity, and contacting your insurance
690 company and provide a phone number where you can be reached.
691 Section 22. Paragraph (a) of subsection (1) and subsection
692 (6) of section 631.57, Florida Statutes, are amended to read:
693 631.57 Powers and duties of the association.—
694 (1) The association shall:
695 (a)1. Be obligated to the extent of the covered claims
696 existing:
697 a. Before Prior to adjudication of insolvency and arising
698 within 30 days after the determination of insolvency;
699 b. Before the policy expiration date if less than 30 days
700 after the determination; or
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701 c. Before the insured replaces the policy or causes its
702 cancellation, if she or he does so within 30 days of the
703 determination.
704 2. The obligation under subparagraph 1. includes only the
705 amount of each covered claim which is in excess of $100 and is
706 less than $300,000, except that policies providing coverage for
707 homeowner's insurance shall provide for an additional $200,000
708 for the portion of a covered claim which relates only to the
709 damage to the structure and contents.
710 3.a. Notwithstanding subparagraph 2., the obligation under
711 subparagraph 1. for policies covering condominium associations
712 or homeowners' associations, which associations have a
713 responsibility to provide insurance coverage on residential
714 units within the association, shall include that amount of each
715 covered property insurance claim which is less than $200,000
716 multiplied by the number of condominium units or other
717 residential units; however, as to homeowners' associations, this
718 sub-subparagraph applies only to claims for damage or loss to
719 residential units and structures attached to residential units.
720 b. Notwithstanding sub-subparagraph a., the association
721 has no obligation to pay covered claims that are to be paid from
722 the proceeds of bonds issued under s. 631.695. However, the
723 association shall assign and pledge the first available moneys
724 from all or part of the assessments to be made under paragraph
725 (3)(a) to or on behalf of the issuer of such bonds for the
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726 benefit of the holders of such bonds. The association shall
727 administer any such covered claims and present valid covered
728 claims for payment in accordance with the provisions of the
729 assistance program in connection with which such bonds have been
730 issued.
731 4. In no event shall the association be obligated to a
732 policyholder or claimant in an amount in excess of the
733 obligation of the insolvent insurer under the policy from which
734 the claim arises.
735 (6) The association may extend the time limits specified
736 in paragraph (1)(a) by up to an additional 60 days or waive the
737 applicability of the $100 deductible specified in paragraph
738 (1)(a) if the board determines that either or both such actions
739 are necessary to facilitate the bulk assumption of obligations.
740 Section 23. Subsection (2) of section 631.904, Florida
741 Statutes, is amended to read:
742 631.904 Definitions.—As used in this part, the term:
743 (2) "Covered claim" means an unpaid claim, including a
744 claim for return of unearned premiums, which arises out of, is
745 within the coverage of, and is not in excess of the applicable
746 limits of, an insurance policy to which this part applies, which
747 policy was issued by an insurer and which claim is made on
748 behalf of a claimant or insured who was a resident of this state
749 at the time of the injury. The term "covered claim" includes
750 unpaid claims under any employer liability coverage of a
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751 workers' compensation policy limited to the lesser of $300,000
752 or the limits of the policy. The term "covered claim" does not
753 include any amount sought as a return of premium under any
754 retrospective rating plan; any amount due any reinsurer,
755 insurer, insurance pool, or underwriting association, as
756 subrogation recoveries or otherwise; any claim that would
757 otherwise be a covered claim that has been rejected or denied by
758 any other state guaranty fund based upon that state's statutory
759 exclusions, including, but not limited to, those based on
760 coverage, policy type, or an insured's net worth, except this
761 exclusion from the definition of covered claim does not apply to
762 employers who, before prior to April 30, 2004, entered into an
763 agreement with the corporation preserving the employer's right
764 to seek coverage of claims rejected by another state's guaranty
765 fund; or any return of premium resulting from a policy that was
766 not in force on the date of the final order of liquidation.
767 Member insurers have no right of subrogation against the insured
768 of any insolvent insurer. This provision applies retroactively
769 to cover claims of an insolvent self-insurance fund resulting
770 from accidents or losses incurred before prior to January 1,
771 1994, regardless of the date the petition in circuit court was
772 filed alleging insolvency and the date the court entered an
773 order appointing a receiver.
774 Section 24. Section 648.30, Florida Statutes, is amended
775 to read:
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776 648.30 Licensure and appointment required; prohibited
777 acts; penalties.—
778 (1) A person may not act in the capacity of a bail bond
779 agent or temporary bail bond agent or perform any of the
780 functions, duties, or powers prescribed for bail bond agents or
781 temporary bail bond agents under this chapter unless that person
782 is qualified, licensed, and appointed as provided in this
783 chapter.
784 (2) A person may not represent himself or herself to be a
785 bail enforcement agent, bounty hunter, or other similar title in
786 this state.
787 (3) A person, other than a certified law enforcement
788 officer, may not apprehend, detain, or arrest a principal on a
789 bond, wherever issued, unless that person is qualified,
790 licensed, and appointed as provided in this chapter or licensed
791 as a bail bond agent or bail bond enforcement agent, or holds an
792 equivalent license by the state where the bond was written.
793 (4) Any person who violates this section commits a felony
794 of the third degree, punishable as provided in s. 775.082, s.
795 775.083, or s. 775.084.
796 (5) Any licensee under this chapter who knowingly aids or
797 abets an unlicensed person in violating this section commits a
798 felony of the third degree, punishable as provided in s.
799 775.082, s. 775.083, or s. 775.084.
800 Section 25. Except as otherwise expressly provided in this
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hb0717-01-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 717 2021
801 act, this act shall take effect upon becoming a law.
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hb0717-01-c1
COMMERCE COMMITTEE
CS/HB 717 by Rep. Clemons
Consumer Protection
AMENDMENT SUMMARY
April 19, 2021
Amendment 1 by Rep. Clemons (strike-all):
• Deletes a provision specifying the fee a consumer reporting agency may charge to
reissue or provide a new unique personal identifier to a consumer’s representative to
remove a security freeze.
• Removes a new statutory section relating to claims adjusting.
• Provides that no person, except an attorney or licensed public adjuster, may, for money,
commission, or any other thing of value, directly or indirectly, offer to initiate or negotiate
a claim on behalf of an insured or advertise services that require a public adjuster
license.
• Provides that the Department of Financial Services may take administrative actions and
impose fines against a person performing claims adjusting or soliciting without a license.
• Provides that a public adjuster, public adjuster apprentice, or public adjusting firm that
solicits a claim and does not enter into a lawful contract with an insured or third-party
claimant may not charge or receive payment for any service related to the claim.
• Removes a new statutory section providing that no property insurance policy sold in
Florida that insures property in Florida may require that an insured engage in dispute
resolution, through litigation, arbitration, or mediation, outside Florida.
• Adds a provision to the Homeowner Claims Bill of Rights advising a personal lines
residential property insurance policyholder to file all claims directly with his or her
insurance company.
• Removes a section relating to licensure and appointment of bail bonds agents.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
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 Clemons offered the following:
3
4 Amendment (with title amendment)
5 Remove everything after the enacting clause and insert:
6 Section 1. Subsection (9) of section 501.0051, Florida
7 Statutes, is amended to read:
8 501.0051 Protected consumer report security freeze.—
9 (9)(a) A consumer reporting agency may not charge any fee
10 to place or remove a security freeze.
11 (b) A consumer reporting agency may charge a reasonable
12 fee, not to exceed $10, if the representative fails to retain
13 the original unique personal identifier provided by the consumer
14 reporting agency and the agency must reissue the unique personal
15 identifier or provide a new unique personal identifier to the
16 representative.
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
17 Section 2. Paragraph (b) of subsection (10) of section
18 624.307, Florida Statutes, is amended to read:
19 624.307 General powers; duties.—
20 (10)
21 (b) Any person licensed or issued a certificate of
22 authority by the department or the office shall respond, in
23 writing, to the division within 20 days after receipt of a
24 written request for documents and information from the division
25 concerning a consumer complaint. The response must address the
26 issues and allegations raised in the complaint and include any
27 requested documents concerning the consumer complaint that are
28 not subject to attorney-client or work-product privilege. The
29 division may impose an administrative penalty for failure to
30 comply with this paragraph of up to $2,500 per violation upon
31 any entity licensed by the department or the office and $250 for
32 the first violation, $500 for the second violation, and up to
33 $1,000 for the third or subsequent violation upon any individual
34 licensed by the department or the office.
35 Section 3. Subsection (20) of section 624.501, Florida
36 Statutes, is amended to read:
37 624.501 Filing, license, appointment, and miscellaneous
38 fees.—The department, commission, or office, as appropriate,
39 shall collect in advance, and persons so served shall pay to it
40 in advance, fees, licenses, and miscellaneous charges as
41 follows:
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
42 (20) Adjusting firm, original or renewal 3-year
43 license..........$60.00
44 Section 4. Subsection (9) of section 626.112, Florida
45 Statutes, is renumbered as subsection (10), paragraph (d) of
46 subsection (7) and present subsection (9) are amended, and a new
47 subsection (9) is added to that section, to read:
48 626.112 License and appointment required; agents, customer
49 representatives, adjusters, insurance agencies, service
50 representatives, managing general agents, adjusting firms.—
51 (7)
52 (d) Effective October 1, 2015, the department must
53 automatically convert the registration of an approved registered
54 insurance agency to an insurance agency license.
55 (9)(a) An individual, firm, partnership, corporation,
56 association, or other entity may not act in its own name or
57 under a trade name, directly or indirectly, as an adjusting firm
58 unless it complies with s. 626.8696 with respect to possessing
59 an adjusting firm license for each place of business at which it
60 engages in an activity that may be performed only by a licensed
61 insurance adjuster. However, an adjusting firm that is owned and
62 operated by a single licensed adjuster conducting business in
63 his or her individual name and not employing or otherwise using
64 the services of or appointing other licensees is exempt from the
65 adjusting firm licensing requirements of this paragraph.
66 (b) A branch place of business that is established by a
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
67 licensed adjusting firm is considered a branch firm and is not
68 required to be licensed if:
69 1. It transacts business under the same name and federal
70 tax identification number as the licensed adjusting firm;
71 2. It has designated with the department a primary
72 adjuster operating the location as required by s. 626.8695; and
73 3. The address and telephone number of the branch location
74 have been submitted to the department for inclusion in the
75 licensing record of the licensed adjusting firm within 30 days
76 after insurance transactions begin at the branch location.
77 (c) If an adjusting firm is required to be licensed but
78 fails to file an application for licensure in accordance with
79 this section, the department shall impose on the firm an
80 administrative penalty of up to $10,000.
81 (10)(9) Any person who knowingly transacts insurance or
82 otherwise engages in insurance activities in this state without
83 a license in violation of this section or who knowingly aids or
84 abets an unlicensed person in transacting insurance or otherwise
85 engaging in insurance activities in this state without a license
86 commits a felony of the third degree, punishable as provided in
87 s. 775.082, s. 775.083, or s. 775.084.
88 Section 5. Subsection (4) is added to section 626.602,
89 Florida Statutes, to read:
90 626.602 Insurance agency names; disapproval.—The
91 department may disapprove the use of any true or fictitious
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
92 name, other than the bona fide natural name of an individual, by
93 any insurance agency on any of the following grounds:
94 (4) The name contains the word "Medicare" or "Medicaid."
95 An agency whose name contains the word "Medicare" or "Medicaid"
96 but which is licensed as of July 1, 2021, may continue to use
97 that name until June 30, 2023, as long as the agency's license
98 remains valid. If the agency's license expires or is suspended
99 or revoked, the agency may not be relicensed using that name.
100 Licenses containing either of these words automatically expire
101 on July 1, 2023, unless these words are removed from the name.
102 Section 6. Subsections (16) and (17) are added to section
103 626.621, Florida Statutes, to read:
104 626.621 Grounds for discretionary refusal, suspension, or
105 revocation of agent's, adjuster's, customer representative's,
106 service representative's, or managing general agent's license or
107 appointment.—The department may, in its discretion, deny an
108 application for, suspend, revoke, or refuse to renew or continue
109 the license or appointment of any applicant, agent, adjuster,
110 customer representative, service representative, or managing
111 general agent, and it may suspend or revoke the eligibility to
112 hold a license or appointment of any such person, if it finds
113 that as to the applicant, licensee, or appointee any one or more
114 of the following applicable grounds exist under circumstances
115 for which such denial, suspension, revocation, or refusal is not
116 mandatory under s. 626.611:
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
117 (16) Taking an action that allows the personal financial
118 or medical information of a consumer or customer to be made
119 available or accessible to the general public, regardless of the
120 format in which the record is stored.
121 (17) Initiating in-person or telephone solicitation after
122 9 p.m. or before 8 a.m. local time of the prospective customer
123 unless requested by the prospective customer.
124 Section 7. Section 626.782, Florida Statutes, is amended
125 to read:
126 626.782 "Industrial class insurer" defined.—An "industrial
127 class insurer" is an insurer collecting premiums on policies of
128 writing industrial life insurance, as defined in s. 627.502,
129 written before July 1, 2021, and as to such insurance, operates
130 under a system of collecting a debit by its agent.
131 Section 8. Section 626.783, Florida Statutes, is amended
132 to read:
133 626.783 "Ordinary-combination class insurer" defined.—An
134 "ordinary-combination class insurer" is an insurer writing both
135 ordinary class insurance and collecting premiums on existing
136 industrial life class insurance.
137 Section 9. Section 626.796, Florida Statutes, is repealed.
138 Section 10. Subsections (6), (11), and (19) of section
139 626.854, Florida Statutes, are amended, and subsections (20) and
140 (21) are added to that section, to read:
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
141 626.854 "Public adjuster" defined; prohibitions.—The
142 Legislature finds that it is necessary for the protection of the
143 public to regulate public insurance adjusters and to prevent the
144 unauthorized practice of law.
145 (6) An insured or claimant may cancel a public adjuster's
146 contract to adjust a claim without penalty or obligation within
147 10 calendar 3 business days after the date on which the contract
148 is executed or within 3 business days after the date on which
149 the insured or claimant has notified the insurer of the claim,
150 whichever is later. The public adjuster's contract must contain
151 the following language in minimum 18-point bold type: "You, the
152 insured, may cancel this contract for any reason without penalty
153 or obligation to you within 10 days after the date of this
154 contract by providing notice to (name of public adjuster) ,
155 submitted in writing and sent by certified mail, return receipt
156 requested, or other form of mailing that provides proof thereof,
157 at the address specified in the contract." disclose to the
158 insured or claimant his or her right to cancel the contract and
159 advise the insured or claimant that notice of cancellation must
160 be submitted in writing and sent by certified mail, return
161 receipt requested, or other form of mailing that provides proof
162 thereof, to the public adjuster at the address specified in the
163 contract; provided, during any state of emergency as declared by
164 the Governor and for 1 year after the date of loss, the insured
165 or claimant has 5 business days after the date on which the
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
166 contract is executed to cancel a public adjuster's contract.
167 (11) Each public adjuster must provide to the claimant or
168 insured a written estimate of the loss to assist in the
169 submission of a proof of loss or any other claim for payment of
170 insurance proceeds within 60 days after the date of the public
171 adjuster's contract. The written estimate must include an
172 itemized, per-unit estimate of the repairs, including itemized
173 information on equipment, materials, labor, and supplies, in
174 accordance with accepted industry standards. The public adjuster
175 shall retain such written estimate for at least 5 years and
176 shall make the estimate available to the claimant or insured,
177 the insurer, and the department upon request.
178 (19) Except as otherwise provided in this chapter, no
179 person, except an attorney at law or a licensed public adjuster,
180 may for money, commission, or any other thing of value, directly
181 or indirectly:
182 (a) Prepare, complete, or file an insurance claim for an
183 insured or a third-party claimant;
184 (b) Act on behalf of or aid an insured or a third-party
185 claimant in negotiating for or effecting the settlement of a
186 claim for loss or damage covered by an insurance contract;
187 (c) Offer to initiate or negotiate a claim on behalf of an
188 insured;
189 (d)(c) Advertise services that require a license for
190 employment as a public adjuster; or
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
191 (e)(d) Solicit, investigate, or adjust a claim on behalf
192 of a public adjuster, an insured, or a third-party claimant.
193 (20) The department may take administrative actions and
194 impose fines not to exceed $10,000 per violation, against any
195 persons performing claims adjusting, soliciting, or any other
196 services under this section without the required licensure under
197 s. 626.112 or this section. The department shall adopt rules to
198 implement this section.
199 (21) A public adjuster, public adjuster apprentice, or
200 public adjusting firm that solicits a claim and does not enter
201 into a lawful contract with an insured or third-party claimant
202 pursuant to paragraph (10)(a) may not charge an insured or
203 third-party claimant or receive payment by any other source for
204 any type of service related to the insured's or third-party
205 claimant's claim.
206 Section 11. Effective January 1, 2022, subsection (3) of
207 section 626.916, Florida Statutes, is amended, and paragraph (f)
208 is added to subsection (1) of that section, to read:
209 626.916 Eligibility for export.—
210 (1) No insurance coverage shall be eligible for export
211 unless it meets all of the following conditions:
212 (f) The insured has signed or otherwise provided
213 documented acknowledgment of a disclosure in substantially the
214 following form: "You are agreeing to place coverage in the
215 surplus lines market. Coverage may be available in the admitted
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
216 market. Persons insured by surplus lines carriers are not
217 protected under the Florida Insurance Guaranty Act with respect
218 to any right of recovery for the obligation of an insolvent
219 unlicensed insurer."
220 (3)(a) Subsection (1) does not apply to wet marine and
221 transportation or aviation risks that which are subject to s.
222 626.917.
223 (b) Paragraphs (1)(a)-(d) do not apply to classes of
224 insurance which are subject to s. 627.062(3)(d)1. These classes
225 may be exportable under the following conditions:
226 1. The insurance must be placed only by or through a
227 surplus lines agent licensed in this state;
228 2. The insurer must be made eligible under s. 626.918; and
229 3. The insured has complied with paragraph (1)(f). must
230 sign a disclosure that substantially provides the following:
231 "You are agreeing to place coverage in the surplus lines market.
232 Superior coverage may be available in the admitted market and at
233 a lesser cost. Persons insured by surplus lines carriers are not
234 protected under the Florida Insurance Guaranty Act with respect
235 to any right of recovery for the obligation of an insolvent
236 unlicensed insurer." If the disclosure in paragraph (1)(f)
237 notice is signed by the insured, the insured is presumed to have
238 been informed and to know that other coverage may be available,
239 and, with respect to the diligent-effort requirement under
240 subsection (1), there is no liability on the part of, and no
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
241 cause of action arises against, the retail agent presenting the
242 form.
243 Section 12. Paragraph (z) of subsection (1) of section
244 626.9541, Florida Statutes, is amended to read:
245 626.9541 Unfair methods of competition and unfair or
246 deceptive acts or practices defined.—
247 (1) UNFAIR METHODS OF COMPETITION AND UNFAIR OR DECEPTIVE
248 ACTS.—The following are defined as unfair methods of competition
249 and unfair or deceptive acts or practices:
250 (z) Sliding.—Sliding is the act or practice of any of the
251 following:
252 1. Representing to the applicant that a specific ancillary
253 coverage or product is required by law in conjunction with the
254 purchase of insurance when such coverage or product is not
255 required.;
256 2. Representing to the applicant that a specific ancillary
257 coverage or product is included in the policy applied for
258 without an additional charge when such charge is required.; or
259 3. Charging an applicant for a specific ancillary coverage
260 or product, in addition to the cost of the insurance coverage
261 applied for, without the informed consent of the applicant.
262 4. Initiating, effectuating, binding, or otherwise issuing
263 a policy of insurance without the prior informed consent of the
264 owner of the property to be insured.
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
265 5. Mailing, transmitting, or otherwise submitting by any
266 means an invoice for premium payment to a mortgagee or escrow
267 agent for the purpose of effectuating an insurance policy
268 without the prior informed consent of the owner of the property
269 to be insured. However, this subparagraph does not apply to
270 cases in which the mortgagee or escrow agent is renewing
271 insurance or issuing collateral protection insurance, as defined
272 in s. 624.6085, pursuant to the mortgage or other pertinent loan
273 documents or communications regarding the property.
274 Section 13. Effective January 1, 2022, subsection (3) of
275 section 626.9741, Florida Statutes, is amended to read:
276 626.9741 Use of credit reports and credit scores by
277 insurers.—
278 (3) An insurer must inform an applicant or insured, in the
279 same medium as the application is taken, that a credit report or
280 score is being requested for underwriting or rating purposes.
281 The notification to the applicant or insured must include the
282 following language: "The Department of Financial Services offers
283 free financial literacy programs to assist you with insurance-
284 related questions, including how credit works and how credit
285 scores are calculated. To learn more, visit
286 www.myfloridacfo.com." An insurer that makes an adverse decision
287 based, in whole or in part, upon a credit report must provide at
288 no charge, a copy of the credit report to the applicant or
289 insured or provide the applicant or insured with the name,
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
290 address, and telephone number of the consumer reporting agency
291 from which the insured or applicant may obtain the credit
292 report. The insurer must provide notification to the consumer
293 explaining the reasons for the adverse decision. The reasons
294 must be provided in sufficiently clear and specific language so
295 that a person can identify the basis for the insurer's adverse
296 decision. Such notification must shall include a description of
297 the four primary reasons, or such fewer number as existed, which
298 were the primary influences of the adverse decision. The use of
299 generalized terms such as "poor credit history," "poor credit
300 rating," or "poor insurance score" does not meet the explanation
301 requirements of this subsection. A credit score may not be used
302 in underwriting or rating insurance unless the scoring process
303 produces information in sufficient detail to permit compliance
304 with the requirements of this subsection. It is shall not be
305 deemed an adverse decision if, due to the insured's credit
306 report or credit score, the insured continues to receive a less
307 favorable rate or placement in a less favorable tier or company
308 at the time of renewal except for renewals or reunderwriting
309 required by this section.
310 Section 14. Subsection (5) of section 626.9953, Florida
311 Statutes, is amended to read:
312 626.9953 Qualifications for registration; application
313 required.—
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
314 (5) An applicant must submit a set of his or her
315 fingerprints to the department and pay the processing fee
316 established under s. 624.501(23) s. 624.501(24). The department
317 shall submit the applicant's fingerprints to the Department of
318 Law Enforcement for processing state criminal history records
319 checks and local criminal records checks through local law
320 enforcement agencies and for forwarding to the Federal Bureau of
321 Investigation for national criminal history records checks. The
322 fingerprints shall be taken by a law enforcement agency, a
323 designated examination center, or another department-approved
324 entity. The department may not approve an application for
325 registration as a navigator if fingerprints have not been
326 submitted.
327 Section 15. Subsection (1) of section 626.9957, Florida
328 Statutes, is amended to read:
329 626.9957 Conduct prohibited; denial, revocation, or
330 suspension of registration.—
331 (1) As provided in s. 626.112, only a person licensed as
332 an insurance agent or customer representative may engage in the
333 solicitation of insurance. A person who engages in the
334 solicitation of insurance as described in s. 626.112(1) without
335 such license is subject to the penalties provided under s.
336 626.112(10) s. 626.112(9).
337 Section 16. Subsection (10) of section 627.062, Florida
338 Statutes, is amended to read:
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
339 627.062 Rate standards.—
340 (10) Any interest paid pursuant to s. 627.70131(7) s.
341 627.70131(5) may not be included in the insurer's rate base and
342 may not be used to justify a rate or rate change.
343 Section 17. Section 627.502, Florida Statutes, is amended
344 to read:
345 627.502 "Industrial life insurance" defined; reporting;
346 prohibition on new policies after a certain date.—
347 (1) For the purposes of this code, "industrial life
348 insurance" is that form of life insurance written under policies
349 under which premiums are payable monthly or more often, bearing
350 the words "industrial policy" or "weekly premium policy" or
351 words of similar import imprinted upon the policies as part of
352 the descriptive matter, and issued by an insurer that which, as
353 to such industrial life insurance, is operating under a system
354 of collecting a debit by its agent.
355 (2) Every life insurer servicing existing transacting
356 industrial life insurance shall report to the office all annual
357 statement data regarding the exhibit of life insurance,
358 including relevant information for industrial life insurance.
359 (3) Beginning July 1, 2021, a life insurer may not write a
360 new policy of industrial life insurance.
361 Section 18. Effective January 1, 2022, section 627.70131,
362 Florida Statutes, is amended to read:
363 627.70131 Insurer's duty to acknowledge communications
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Bill No. CS/HB 717 (2021)
Amendment No.
364 regarding claims; investigation.—
365 (1) As used in this section, the term "insurer" means a
366 residential property insurer.
367 (2)(1)(a) Upon an insurer's receiving a communication with
368 respect to a claim, the insurer shall, within 14 calendar days,
369 review and acknowledge receipt of such communication unless
370 payment is made within that period of time or unless the failure
371 to acknowledge is caused by factors beyond the control of the
372 insurer which reasonably prevent such acknowledgment. If the
373 acknowledgment is not in writing, a notification indicating
374 acknowledgment shall be made in the insurer's claim file and
375 dated. A communication made to or by a representative an agent
376 of an insurer with respect to a claim shall constitute
377 communication to or by the insurer.
378 (b) As used in this subsection, the term "representative"
379 "agent" means any person to whom an insurer has granted
380 authority or responsibility to receive or make such
381 communications with respect to claims on behalf of the insurer.
382 (c) This subsection does shall not apply to claimants
383 represented by counsel beyond those communications necessary to
384 provide forms and instructions.
385 (3)(2) Such acknowledgment shall be responsive to the
386 communication. If the communication constitutes a notification
387 of a claim, unless the acknowledgment reasonably advises the
388 claimant that the claim appears not to be covered by the
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Bill No. CS/HB 717 (2021)
Amendment No.
389 insurer, the acknowledgment shall provide necessary claim forms,
390 and instructions, including an appropriate telephone number.
391 (4)(a)(3) Unless otherwise provided by the policy of
392 insurance or by law, within 14 10 working days after an insurer
393 receives proof of loss statements, the insurer shall begin such
394 investigation as is reasonably necessary unless the failure to
395 begin such investigation is caused by factors beyond the control
396 of the insurer which reasonably prevent the commencement of such
397 investigation.
398 (b) If such investigation involves a physical inspection
399 of the property, the licensed adjuster assigned by the insurer
400 must provide the policyholder with a printed or electronic
401 document containing his or her name and license number.
402 (c) Any subsequent communication with the policyholder
403 regarding the claim must also include the name and license
404 number of the adjuster communicating about the claim.
405 Communication of the adjuster's name and license number may be
406 included along with other information already being provided to
407 the policyholder.
408 (5)(4) An insurer shall maintain a record or log of each
409 adjuster who communicates with the policyholder as provided in
410 paragraphs (4)(b) and (4)(c) and shall provide a list of the
411 adjusters to the policyholder, the office, or the department
412 upon request For purposes of this section, the term "insurer"
413 means any residential property insurer.
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Bill No. CS/HB 717 (2021)
Amendment No.
414 (6)(a) When providing a preliminary or partial estimate of
415 damage regarding a claim, an insurer shall include with the
416 estimate the following statement printed in at least 12-point
417 bold, uppercase type: "THIS ESTIMATE REPRESENTS OUR CURRENT
418 EVALUATION OF THE COVERED DAMAGES TO YOUR INSURED PROPERTY AND
419 MAY BE REVISED AS WE CONTINUE TO EVALUATE YOUR CLAIM. IF YOU
420 HAVE QUESTIONS, CONCERNS, OR ADDITIONAL INFORMATION REGARDING
421 YOUR CLAIM, WE ENCOURAGE YOU TO CONTACT US."
422 (b) When providing a payment on a claim which is not the
423 full and final payment for the claim, an insurer shall include
424 with the payment the following statement printed in at least 12-
425 point bold, uppercase type: "WE ARE CONTINUING TO EVALUATE YOUR
426 CLAIM INVOLVING YOUR INSURED PROPERTY AND MAY ISSUE ADDITIONAL
427 PAYMENTS. IF YOU HAVE QUESTIONS, CONCERNS, OR ADDITIONAL
428 INFORMATION REGARDING YOUR CLAIM, WE ENCOURAGE YOU TO CONTACT
429 US."
430 (7)(a)(5)(a) Within 90 days after an insurer receives
431 notice of an initial, reopened, or supplemental property
432 insurance claim from a policyholder, the insurer shall pay or
433 deny such claim or a portion of the claim unless the failure to
434 pay is caused by factors beyond the control of the insurer which
435 reasonably prevent such payment. Any payment of an initial or
436 supplemental claim or portion of such claim made 90 days after
437 the insurer receives notice of the claim, or made more than 15
438 days after there are no longer factors beyond the control of the
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
439 insurer which reasonably prevented such payment, whichever is
440 later, bears interest at the rate set forth in s. 55.03.
441 Interest begins to accrue from the date the insurer receives
442 notice of the claim. The provisions of this subsection may not
443 be waived, voided, or nullified by the terms of the insurance
444 policy. If there is a right to prejudgment interest, the insured
445 shall select whether to receive prejudgment interest or interest
446 under this subsection. Interest is payable when the claim or
447 portion of the claim is paid. Failure to comply with this
448 subsection constitutes a violation of this code. However,
449 failure to comply with this subsection does not form the sole
450 basis for a private cause of action.
451 (b) Notwithstanding subsection (1) (4), for purposes of
452 this subsection, the term "claim" means any of the following:
453 1. A claim under an insurance policy providing residential
454 coverage as defined in s. 627.4025(1);
455 2. A claim for structural or contents coverage under a
456 commercial property insurance policy if the insured structure is
457 10,000 square feet or less; or
458 3. A claim for contents coverage under a commercial tenant
459 policy if the insured premises is 10,000 square feet or less.
460 (c) This subsection does shall not apply to claims under
461 an insurance policy covering nonresidential commercial
462 structures or contents in more than one state.
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
463 (8) This section also applies to surplus lines insurers
464 and to surplus lines insurance authorized under ss. 626.913-
465 626.937 providing residential coverage.
466 Section 19. Effective January 1, 2022, section 627.7142,
467 Florida Statutes, is amended to read:
468 627.7142 Homeowner Claims Bill of Rights.—An insurer
469 issuing a personal lines residential property insurance policy
470 in this state must provide a Homeowner Claims Bill of Rights to
471 a policyholder within 14 days after receiving an initial
472 communication with respect to a claim, unless the claim follows
473 an event that is the subject of a declaration of a state of
474 emergency by the Governor. The purpose of the bill of rights is
475 to summarize, in simple, nontechnical terms, existing Florida
476 law regarding the rights of a personal lines residential
477 property insurance policyholder who files a claim of loss. The
478 Homeowner Claims Bill of Rights is specific to the claims
479 process and does not represent all of a policyholder's rights
480 under Florida law regarding the insurance policy. The Homeowner
481 Claims Bill of Rights does not create a civil cause of action by
482 any individual policyholder or class of policyholders against an
483 insurer or insurers. The failure of an insurer to properly
484 deliver the Homeowner Claims Bill of Rights is subject to
485 administrative enforcement by the office but is not admissible
486 as evidence in a civil action against an insurer. The Homeowner
487 Claims Bill of Rights does not enlarge, modify, or contravene
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
488 statutory requirements, including, but not limited to, ss.
489 626.854, 626.9541, 627.70131, 627.7015, and 627.7074, and does
490 not prohibit an insurer from exercising its right to repair
491 damaged property in compliance with the terms of an applicable
492 policy or ss. 627.7011(5)(e) and 627.702(7). The Homeowner
493 Claims Bill of Rights must state:
494
495 HOMEOWNER CLAIMS
496 BILL OF RIGHTS
497 This Bill of Rights is specific to the claims process and does
498 not represent all of your rights under Florida law regarding
499 your policy. There are also exceptions to the stated timelines
500 when conditions are beyond your insurance company's control.
501 This document does not create a civil cause of action by an
502 individual policyholder, or a class of policyholders, against an
503 insurer or insurers and does not prohibit an insurer from
504 exercising its right to repair damaged property in compliance
505 with the terms of an applicable policy.
506
507 YOU HAVE THE RIGHT TO:
508 1. Receive from your insurance company an acknowledgment
509 of your reported claim within 14 days after the time you
510 communicated the claim.
511 2. Upon written request, receive from your insurance
512 company within 30 days after you have submitted a complete
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
513 proof-of-loss statement to your insurance company, confirmation
514 that your claim is covered in full, partially covered, or
515 denied, or receive a written statement that your claim is being
516 investigated.
517 3. Within 90 days, subject to any dual interest noted in
518 the policy, receive full settlement payment for your claim or
519 payment of the undisputed portion of your claim, or your
520 insurance company's denial of your claim.
521 4. Receive payment of interest, as provided in section
522 627.70131, Florida Statutes, from your insurance company, which
523 begins accruing from the date your claim is filed if your
524 insurance company does not pay full settlement of your initial,
525 reopened, or supplemental claim or the undisputed portion of
526 your claim or does not deny your claim within 90 days after your
527 claim is filed. The interest, if applicable, must be paid when
528 your claim or undisputed portion of your claim is paid.
529 5.4. Have free mediation of your disputed claim by the
530 Florida Department of Financial Services, Division of Consumer
531 Services, under most circumstances and subject to certain
532 restrictions.
533 6.5. Have neutral evaluation of your disputed claim, if
534 your claim is for damage caused by a sinkhole and is covered by
535 your policy.
536 7.6. Contact the Florida Department of Financial Services,
537 Division of Consumer Services' toll-free helpline for assistance
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
538 with any insurance claim or questions pertaining to the handling
539 of your claim. You can reach the Helpline by phone at...(toll-
540 free phone number)..., or you can seek assistance online at the
541 Florida Department of Financial Services, Division of Consumer
542 Services' website at...(website address)....
543
544 YOU ARE ADVISED TO:
545 1. File all claims directly with your insurance company.
546 2.1. Contact your insurance company before entering into
547 any contract for repairs to confirm any managed repair policy
548 provisions or optional preferred vendors.
549 3.2. Make and document emergency repairs that are
550 necessary to prevent further damage. Keep the damaged property,
551 if feasible, keep all receipts, and take photographs or video of
552 damage before and after any repairs to provide to your insurer.
553 4.3. Carefully read any contract that requires you to pay
554 out-of-pocket expenses or a fee that is based on a percentage of
555 the insurance proceeds that you will receive for repairing or
556 replacing your property.
557 5.4. Confirm that the contractor you choose is licensed to
558 do business in Florida. You can verify a contractor's license
559 and check to see if there are any complaints against him or her
560 by calling the Florida Department of Business and Professional
561 Regulation. You should also ask the contractor for references
562 from previous work.
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
563 6.5. Require all contractors to provide proof of insurance
564 before beginning repairs.
565 7.6. Take precautions if the damage requires you to leave
566 your home, including securing your property and turning off your
567 gas, water, and electricity, and contacting your insurance
568 company and provide a phone number where you can be reached.
569 Section 20. Paragraph (a) of subsection (1) and subsection
570 (6) of section 631.57, Florida Statutes, are amended to read:
571 631.57 Powers and duties of the association.—
572 (1) The association shall:
573 (a)1. Be obligated to the extent of the covered claims
574 existing:
575 a. Before Prior to adjudication of insolvency and arising
576 within 30 days after the determination of insolvency;
577 b. Before the policy expiration date if less than 30 days
578 after the determination; or
579 c. Before the insured replaces the policy or causes its
580 cancellation, if she or he does so within 30 days of the
581 determination.
582 2. The obligation under subparagraph 1. includes only the
583 amount of each covered claim which is in excess of $100 and is
584 less than $300,000, except that policies providing coverage for
585 homeowner's insurance shall provide for an additional $200,000
586 for the portion of a covered claim which relates only to the
587 damage to the structure and contents.
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
588 3.a. Notwithstanding subparagraph 2., the obligation under
589 subparagraph 1. for policies covering condominium associations
590 or homeowners' associations, which associations have a
591 responsibility to provide insurance coverage on residential
592 units within the association, shall include that amount of each
593 covered property insurance claim which is less than $200,000
594 multiplied by the number of condominium units or other
595 residential units; however, as to homeowners' associations, this
596 sub-subparagraph applies only to claims for damage or loss to
597 residential units and structures attached to residential units.
598 b. Notwithstanding sub-subparagraph a., the association
599 has no obligation to pay covered claims that are to be paid from
600 the proceeds of bonds issued under s. 631.695. However, the
601 association shall assign and pledge the first available moneys
602 from all or part of the assessments to be made under paragraph
603 (3)(a) to or on behalf of the issuer of such bonds for the
604 benefit of the holders of such bonds. The association shall
605 administer any such covered claims and present valid covered
606 claims for payment in accordance with the provisions of the
607 assistance program in connection with which such bonds have been
608 issued.
609 4. In no event shall the association be obligated to a
610 policyholder or claimant in an amount in excess of the
611 obligation of the insolvent insurer under the policy from which
612 the claim arises.
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
613 (6) The association may extend the time limits specified
614 in paragraph (1)(a) by up to an additional 60 days or waive the
615 applicability of the $100 deductible specified in paragraph
616 (1)(a) if the board determines that either or both such actions
617 are necessary to facilitate the bulk assumption of obligations.
618 Section 21. Subsection (2) of section 631.904, Florida
619 Statutes, is amended to read:
620 631.904 Definitions.—As used in this part, the term:
621 (2) "Covered claim" means an unpaid claim, including a
622 claim for return of unearned premiums, which arises out of, is
623 within the coverage of, and is not in excess of the applicable
624 limits of, an insurance policy to which this part applies, which
625 policy was issued by an insurer and which claim is made on
626 behalf of a claimant or insured who was a resident of this state
627 at the time of the injury. The term "covered claim" includes
628 unpaid claims under any employer liability coverage of a
629 workers' compensation policy limited to the lesser of $300,000
630 or the limits of the policy. The term "covered claim" does not
631 include any amount sought as a return of premium under any
632 retrospective rating plan; any amount due any reinsurer,
633 insurer, insurance pool, or underwriting association, as
634 subrogation recoveries or otherwise; any claim that would
635 otherwise be a covered claim that has been rejected or denied by
636 any other state guaranty fund based upon that state's statutory
637 exclusions, including, but not limited to, those based on
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
638 coverage, policy type, or an insured's net worth, except this
639 exclusion from the definition of covered claim does not apply to
640 employers who, before prior to April 30, 2004, entered into an
641 agreement with the corporation preserving the employer's right
642 to seek coverage of claims rejected by another state's guaranty
643 fund; or any return of premium resulting from a policy that was
644 not in force on the date of the final order of liquidation.
645 Member insurers have no right of subrogation against the insured
646 of any insolvent insurer. This provision applies retroactively
647 to cover claims of an insolvent self-insurance fund resulting
648 from accidents or losses incurred before prior to January 1,
649 1994, regardless of the date the petition in circuit court was
650 filed alleging insolvency and the date the court entered an
651 order appointing a receiver.
652 Section 22. Except as otherwise expressly provided in this
653 act, this act shall take effect upon becoming a law.
654
655 -----------------------------------------------------
656 T I T L E A M E N D M E N T
657 Remove lines 3-103 and insert:
658 501.0051, F.S.; deleting a provision specifying the fee a
659 consumer reporting agency may charge to reissue or provide a new
660 unique personal identifier; amending s. 624.307, F.S.; revising
661 a requirement for persons licensed or authorized by the
662 Department of Financial Services or the Office of Insurance
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
663 Regulation to respond to the department's Division of Consumer
664 Services regarding consumer complaints; amending s. 624.501,
665 F.S.; deleting a fee for adjusting firm licenses; amending s.
666 626.112, F.S.; removing a provision requiring the department to
667 automatically convert registrations of approved registered
668 insurance agencies to insurance agency licenses; prohibiting an
669 entity from unlicensed activity as an adjusting firm unless the
670 entity complies with a specified requirement; providing an
671 exemption; providing an exemption from licensure for branch
672 firms that meet certain criteria; providing an administrative
673 penalty for failing to apply for certain licensure; providing a
674 criminal penalty for aiding or abetting unlicensed activity;
675 amending s. 626.602, F.S.; authorizing the department to
676 disapprove the use of insurance agency names containing the
677 words "Medicare" or "Medicaid"; providing a time-limited
678 exception for certain insurance agencies; prohibiting
679 relicensing of insurance agencies using such names; providing
680 for future expiration of such licenses; providing an exception
681 from future expiration; amending s. 626.621, F.S.; adding
682 grounds on which the department may take certain actions against
683 a license, appointment, or application of certain insurance
684 representatives; amending ss. 626.782 and 626.783, F.S.;
685 revising the definitions of the terms "industrial class insurer"
686 and "ordinary-combination class insurer," respectively, to
687 conform to changes made by the act; repealing s. 626.796, F.S.,
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
688 relating to the representation of multiple insurers in the same
689 industrial debit territory; amending s. 626.854, F.S.; revising
690 the timeframe in which an insured or claimant may cancel a
691 public adjuster's contract to adjust a claim without penalty or
692 obligation; providing the language that certain public
693 adjuster's contracts must include relating to contract
694 cancellation; specifying requirements for written estimates of
695 loss provided by public adjusters to claimants or insureds;
696 authorizing the department to take administrative actions and
697 impose fines against persons performing specified activities
698 without licensure; requiring rulemaking; prohibiting public
699 adjusters, public adjuster apprentices, and public adjusting
700 firms from charging insureds or claimants or receiving payments
701 under certain circumstances; amending s. 626.916, F.S.;
702 providing a disclosure requirement that an insurance coverage
703 must meet before being eligible for export under the Surplus
704 Lines Law; amending s. 626.9541, F.S.; adding certain acts or
705 practices to the definition of the term "sliding" as unfair
706 methods of competition and unfair or deceptive acts; amending s.
707 626.9741, F.S.; requiring an insurer's notification regarding
708 certain credit report or score information to include specified
709 language under certain circumstances; amending ss. 626.9953,
710 626.9957, and 627.062, F.S.; conforming cross-references;
711 amending s. 627.502, F.S.; prohibiting a life insurer from
712 writing new policies of industrial life insurance beginning on a
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
713 certain date; amending s. 627.70131, F.S.; providing that
714 communication made to or by a residential property insurer's
715 representative, rather than to or by a residential property
716 insurer's agent, constitutes communication to or by the insurer;
717 replacing the defined term "agent" with the term
718 "representative"; revising the timeframe in which an insurer
719 must begin an investigation after receipt of proof of loss
720 statements; requiring an insurer-assigned licensed adjuster to
721 provide the policyholder with certain information; specifying
722 information that must be included in certain communication with
723 the policyholder regarding a claim; requiring an insurer to keep
724 records or logs of the licensed adjusters interacting with
725 policyholders and to provide the policyholders, the office, or
726 the department with a list of the adjusters; requiring an
727 insurer to include specified notices when providing preliminary
728 or partial damage estimates or claim payments; providing
729 applicability; amending s. 627.7142, F.S.; revising
730 circumstances under which an insurer must provide a Homeowner
731 Claims Bill of Rights to a policyholder; revising information
732 contained in the Homeowner Claims Bill of Rights; conforming
733 provisions to changes made by the act; amending s. 631.57, F.S.;
734 deleting a deductible on the obligation of the Florida Insurance
735 Guaranty Association, Incorporated, as to certain covered
736 claims; amending s. 631.904, F.S.; revising the definition of
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 717 (2021)
Amendment No.
737 the term "covered claim" to exclude certain premium returns;
738 providing an effective date.
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CS/HB 815
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 815 Insurance
SPONSOR(S): Insurance & Banking Subcommittee, Gregory
TIED BILLS: IDEN./SIM. BILLS: CS/SB 742
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Insurance & Banking Subcommittee 18 Y, 0 N, As CS Rowley Luczynski
2) State Administration & Technology 13 Y, 0 N Lee Topp
Appropriations Subcommittee
3) Commerce Committee Rowley Hamon
SUMMARY ANALYSIS
The bill makes the following changes regarding insurance:
Florida Hurricane Catastrophe Fund (FHCF) Coverage – Modifies when a collateral protection insurance
policy is eligible for FHCF coverage.
Service of Process – Provides that service of process is perfected on an insurer when process served on the
Department of Financial Services (DFS) is delivered to the insurer or DFS has notified the insurer of its
availability online.
Meeting Requirements – Authorizes associations, trusts, and pools that provide self-insurance for public
entities to use communications media technology to establish a quorum and conduct public business.
Loss Run Statements – Revises requirements related to requests for and insurers’ production of loss run
statements.
Hurricane Modeling – Provides that a property insurer may use a weighted or straight average of two or more
approved hurricane models in a rate filing.
Mitigation Credits in Residential Property Insurance Rate Filings – Makes the use of building code
enforcement rating factors in rating plans optional and allows insurers to give mitigation credit for evaluation by,
and compliance with, standards developed by an independent, not-for-profit, scientific research organization.
Workers’ Compensation Rates – Provides that past and prospective loss experience for insolvent insurers
must be used in the determination and fixing of workers’ compensation rates and that data previously reported
by insolvent insurers may be used to assess the impact on rates.
Citizens Property Insurance Corporation – Allows Citizens the option to insure residential condominiums
under commercial residential wind-only coverage if the units are intended for residential use, but are rented on
a short-term basis.
Policy Documents – Authorizes electronic transmission of policy documents and claims communications and
revises notice requirements for certain automobile insurance policies.
Replacement Cost Coverage and Law and Ordinance Coverage – Provides the laws and ordinances that
are applicable to a particular covered loss are those that were enacted on or before the date of that loss.
Export of Flood Coverage to Surplus Lines – Reenacts the exemption from diligent search efforts when an
agent is placing flood insurance on the surplus lines market.
Assignment Agreements – Amends the scope of services covered by regulations governing post-loss
property insurance assignment agreements.
Agent Licensing – Allows licensed general or personal lines agents to sell service agreements or warranties
without a salesperson or sales representative license, expands the definition of “company employee adjuster”,
and adds a designation related to the qualifications for customer representative licensure.
The bill has no impact on state or local government revenues or expenditures. It has an unknown direct
economic impact on the private sector.
Except where otherwise provided, the bill is effective on July 1, 2021.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0815d.COM
DATE: 4/18/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Hurricane Catastrophe Fund – Collateral Protection Insurance
The Florida Hurricane Catastrophe Fund (FHCF) is a tax-exempt trust fund created by the Legislature
in 1993 as a form of reinsurance for residential property losses.1 The FHCF is administered by the
State Board of Administration and reimburses property insurers for a selected percentage of hurricane
losses to residential property above the insurer’s retention (deductible).2 As a condition of doing
business in Florida, property insurers are required to enter into reimbursement contracts with the
FHCF. The purpose of the FHCF is to protect and advance the state's interest in maintaining insurance
capacity in Florida by providing reimbursements to insurers for a portion of their catastrophic hurricane
losses.
The FHCF reimburses its participating insurers for losses on covered policies, subject to limitations.3
Covered policies include collateral protection insurance4 policies covering personal residences that
protect both the borrower’s and the lender’s financial interests, in an amount at least equal to the
coverage for the dwelling in place under the lapsed homeowner’s policy, if such policy meets certain
statutory conditions.5
Collateral protection insurance is placed by an insurer when a borrower’s policy on the property has
lapsed. Sometimes, the insurer is unable to obtain correct information from the homeowner and places
coverage at an amount other than the amount of the homeowner’s lapsed policy. This can create a
discrepancy between the coverage in place and the amount of the homeowner’s lapsed policy, which
makes the policy ineligible for FHCF coverage.
Effect of the Bill
The bill amends the conditions for which a collateral protection insurance policy can be considered a
“covered policy” and thus eligible for FHCF coverage. The bill provides that a collateral protection
insurance policy is eligible for coverage if it is placed for the amount of the last known coverage, the
amount the homeowner was notified of, or the amount that the homeowner requests, in addition to the
current law requirement that it also protects the homeowner’s interest.
Service of Process
The law provides for the designation of a public officer, board, agency, or commission as the agent for
service of process on a person, firm, or corporation in Florida.6 The Chief Financial Officer (CFO) is
designated as the agent for service of process on insurers and other specific entities or persons
licensed by the Department of Financial Services (DFS) and the Office of Insurance Regulation (OIR).7
Service of process on the CFO is made by mail, personal service, or electronic service.8
1 S. 215.555, F.S.
2 Id.
3 S. 215.555(1)(d), F.S.
4 “Collateral protection insurance” means commercial property insurance under which a creditor is the primary beneficiary
and policyholder and which protects or covers an interest of the creditor arising out of a credit transaction secured by real
or personal property. Initiation of such coverage is triggered by the mortgagor’s failure to maintain insurance coverage as
required by the mortgage or other lending document. Collateral protection insurance is not residential coverage.
S. 624.6085, F.S.
5 S. 215.555(2)(c), F.S.
6 S. 48.151, F.S.
7 Id.
8 Id.; Florida Department of Financial Services, https://www.myfloridacfo.com/division/generalcounsel/service-of-process/
(last visited Mar. 7, 2021).
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After receiving service of process, the CFO is required to promptly send a copy by registered or
certified mail, or by any other verifiable means, to the person designated by the insurer to receive the
process.9 “Verifiable means” includes making the documents available by electronic transmission from
a secure network established by DFS.10 If the documents are made available electronically, the CFO is
required to send a notice of receipt of process to the person designated by the insurer to receive legal
process.11 The notice must state the date and manner in which the copy of the process was made
available and contain a hyperlink to obtain a copy of the process.12
Service is considered perfected on an insurer when the CFO is served with process.13 Although an
insurer is not required to respond to a lawsuit except within 20 days after the date the CFO sends or
makes available a copy of the process, the triggering date for other legal deadlines is the date the CFO
is served with process.14 This can create problems for an insurer when there is a delay between the
time the CFO is served and the time the CFO notifies the insurer of the process.
Effect of the Bill
The bill provides that service of process is perfected on an insurer when the process served on the
CFO is delivered to the insurer or the insurer is notified that a copy of the process is available on a
secured network.
Meeting Requirements
Current law does not address whether associations, trusts, and pools formed to provide self-insurance
for public entities can establish a quorum and conduct public business virtually.
Effect of the Bill
The bill authorizes associations, trusts, and pools formed to provide self-insurance for public entities to
establish a quorum and conduct public business through communications media technology.
Company Employee Adjuster
DFS, through its Division of Insurance Agent and Agency Services, regulates the licensure of insurance
adjusters.15 An adjuster may be licensed as either an “all-lines adjuster” or a “public adjuster.”16 A
company employee adjuster is “a person licensed as an all-lines adjuster who is appointed and
employed on an insurer’s staff of adjusters or a wholly owned subsidiary of the insurer, and who
undertakes on behalf of such insurer or other insurers under common control or ownership to ascertain
and determine the amount of any claim, loss, or damage payable under a contract of insurance, or
undertakes to effect settlement of such claim, loss, or damage.”17
Effect of the Bill
The bill expands the definition of a “company employee adjuster” to include a licensed all-lines adjuster
who is appointed and employed by an insurer’s affiliate.
Customer Representative
9 S. 624.423, F.S.
10 S. 624.307(9), F.S.
11 Id.
12 Id.
13 S. 624.423(3), F.S.
14 S. 624.423(2), F.S.
15 Division of Insurance Agent and Agency Services, https://myfloridacfo.com/Division/Agents/ (last visited Mar. 3, 2021).
16 S. 626.864, F.S. An individual may be licensed as either an all-lines adjuster or a public adjuster, but not both. An all-
lines adjuster may be appointed as one, but no more than one at a time, of the following: independent adjuster, public
adjuster apprentice, or company employee adjuster.
17 S. 626.856, F.S.
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To qualify for licensure as a customer representative, an applicant must, among other requirements,
within 4 years preceding the date an application was filed with DFS, earn a designation from the list of
approved designations or a degree from an accredited institution.18
Effect of the Bill
The bill adds the designation of Insurance Customer Service Representative (ICSR) from Statewide
Insurance Associates LLC to the list of designations.
Loss Run Statements
A loss run statement19 is a report from an insurer that shows how many claims a specific insured has
filed under that insured’s policy during a particular period of time.20 This report can be provided to a
prospective insurer when an insured is shopping for a new insurance policy.21 The prospective insurer
can use the loss run statement to review the types, frequency, and dollar value of prior claims in order
to determine whether to write a policy for the prospective insured and what premium to charge for that
policy.22 Prospective insurers review loss run statements showing a loss run history from three to five
years to make decisions about writing insurance policies.23
While insureds may request loss run statements for any line of insurance, insureds seeking new
general liability, business owner’s, commercial property, commercial auto insurance, or workers’
compensation insurance, often request them to shop for new insurance24 upon cancellation or
nonrenewal of a policy by an insurer or when the insured chooses to shop for new insurance at the time
a policy is up for renewal. Some insurers, especially those providing commercial lines coverage or
workers’ compensation insurance, have existing loss runs systems that allow their insureds to log into a
portal and to obtain their own detailed reports on claims.25 However, other insurers, in these and other
lines of insurance, may provide insureds with loss run statements that they have created upon request
or direct the insureds to obtain such statements from their agents of record.
Statutes enacted in 2020 established a statutory framework regarding when and how insurers must
provide loss run statements to insureds. Pursuant to these statutes, for all lines of insurance written on
the admitted and surplus lines markets, insurers must provide a loss run statement with a 5-year loss
history within 15 days of receiving an insured’s written request.26 In the event of a request for a loss run
statement regarding a personal lines policy, an insurer may provide the insured information about how
to obtain a loss run statement at no charge through a consumer reporting agency.27 However, the
insured may still ask the insurer for a loss run statement even after receiving information from a
consumer reporting agency.28
Effect of the Bill
The bill amends the statutes regarding loss run statements that were enacted in 2020, so that they
better reflect existing industry standards. It revises the number of years of loss history that an insurer
must provide from a minimum of 5 years to a minimum of 3 years to reflect the fact that many insurers
were routinely providing insureds with a 3-year history upon request before the 2020 statutes were
18 S. 626.7351, F.S.
19 Loss run statements are also referred to as loss runs or loss run reports.
20 Insureon, https://www.insureon.com/insurance-glossary/loss-runs (last visited Mar. 4, 2021).
21 Id.
22 Id.
23 Id.
24 Id.
25 See, e.g., MSIG Loss Runs, https://www.msigusa.com/loss-runs/ and StarStone,
http://myaccount.starstoneworkcomp.com/index.htm (last visited Mar. 4, 2021).
26 See ss. 626.9202 and 627.444, F.S.
27 S. 627.444(2)(b), F.S.
28 Id.
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enacted. The bill requires that if a personal lines insured asks an insurer for a loss run statement after
receiving information from a consumer reporting agency, the insurer must provide that statement within
15 days. It establishes that sections 626.9202 and 627.444, F.S., regarding loss run statements, do not
apply to life insurers.29
The bill also resolves a conflict between the newly enacted statutes and an existing statute regarding
loss run statements for group health insurance policies by repealing the health-insurance-specific
statute.30 It establishes that, as applied to group health insurance, a loss run statement also includes
premiums paid, number of insureds on a monthly basis, and dependent status. The bill clarifies that for
group health insurance, only plan sponsors, not individual employees covered by the group policy, may
request a loss run statement.
Rate Disapprovals Based Upon Hurricane Modeling
The law governing OIR’s review and approval of residential property insurance rate filings requires that
a rate filing account for mitigation measures that policyholders undertake to reduce hurricane losses.31
It sets forth the criteria under which OIR may disapprove rate filings, including disapproval of rates that
are determined to be excessive, inadequate, or unfairly discriminatory.32 The law also establishes
criteria for the Florida Commission on Hurricane Loss Projection Methodology’s (Commission)
consideration and approval of hurricane loss models and prescribes how those models affect OIR’s
approval of property insurance rate filings.33
Effect of the Bill
The bill provides parameters for OIR’s approval or disapproval of rate filings by providing that, with
respect to residential property insurance rate filings, the rate filing may use a modeling indication that is
the weighted or straight average of two or more models found to be accurate or reliable by the
Commission.
Mitigation Credits in Residential Property Insurance Rate Filings
Current law requires residential property insurers to include “positive and negative rate factors that
reflect the manner in which building code enforcement in a particular jurisdiction addresses risk of wind
damage” in their rate filing that are filed for approval by OIR.34 Insurers utilize factors from statewide
organizations’ building code rating factor plans that evaluate how building code enforcement in
particular jurisdictions evaluate risk.35 Often times these ratings are flawed and not an accurate
depiction of actual building code enforcement activity in a jurisdiction.
Since 2003, residential property insurers have been required to provide credits, discounts, and other
rate differentials to reduce insurance premiums for properties with mitigation features.36 Mitigation
features are construction techniques used or items installed to protect a structure against windstorm
damage and loss.37
29 Because loss run statements are used to shop for new insurance and life insurance claims are only made after the
death of an insured, a loss run statement is not necessary for this type of policy.
30 See s. 627.6647, F.S.
31 S. 627.062(2)(j), F.S.
32 S. 627.062, F.S.
33 Ss. 627.0628–627.06281, F.S.
34 S. 627.0629(2)(b), F.S.
35 See, e.g., ISO Mitigation, How Do Building Code Effectiveness Classifications Affect Insurance Pricing?,
https://www.isomitigation.com/bcegs/how-do-building-code-effectiveness-classifications-affect-insurance-pricing/ (last
visited Mar. 6, 2021). The Insurance Service Office (ISO) has a program known as Building Code Effectiveness Grading
Schedule (BCEGS®), which provides these rating factors.
36 See s. 627.0629, F.S.
37 Examples of mitigation features include hurricane shutters, a hip roof, or a specific type of roof covering.
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Code-plus programs help property owners avoid or reduce damage caused by natural hazards and
other risks by implementing additional levels of resilience to hazard beyond those required by building
codes.38 Presently, insurers are unable to submit rating plans for review and approval by OIR that
include mitigation credits for those insureds that are evaluated by, and comply with, code-plus
standards established by independent, not-for-profit, scientific research organizations.39
Effect of the Bill
The bill allows insurers the option to include the building code enforcement rating factor within their
rating formula rather than requiring them to include it. Therefore, they will no longer be required to use
rating factors that may be flawed. The bill also allows insurers to file a rating plan with OIR in which it
offers additional windstorm mitigation credits based on standards established by an independent, not-
for-profit, scientific research organization (the rating plan) that meets the requirements of the rate filing
statute. Additionally the bill contains a provision that allows insurers to require that insureds who elect
to construct or retrofit a structure to receive premium discounts, credits, or rate reductions allowed
under the rating plan provide evidence of compliance with mitigation standards prior to receiving the
discounts, credits, or rate reductions.
Workers’ Compensation Insurance Reporting Requirements
Workers’ compensation insurance carriers are required to record and report certain loss, expense, and
claims experience to aid OIR in making determinations concerning the adequacy of workers’
compensation experience for ratemaking purposes.40 Additionally, carriers are required to provide the
following information annually on both Florida experience and nationwide experience separately:
Payrolls by classification;
Manual premiums by classification;
Standard premiums by classification;
Losses by classification and injury type; and
Expenses.
Carriers satisfy these requirements by providing their data to the National Council on Compensation
Insurance, Inc. (NCCI). When a carrier goes into receivership due to insolvency, they cease reporting
to NCCI and, therefore, their data is no longer reported to OIR.
Effect of the Bill
The bill provides for a new factor in the determination and fixing of workers’ compensation and
employer’s liability insurance rates. This factor represents the loss experience of insurers whose data is
missing due to insolvency. Insurers may use prior reported data for such insurers and all other relevant
information to assess the impact on rates.
Citizens Property Insurance Corporation
Citizens Property Insurance Corporation (Citizens) is a state-created, not-for-profit, tax-exempt
governmental entity that provides property insurance coverage to those unable to find coverage in the
admitted market. Citizens offers property insurance in three separate accounts: the personal lines
account; the commercial lines account; and the coastal account. The commercial lines account offers
commercial lines residential and nonresidential policies. Currently, residential condominiums are
38 Whole Building Design Guide, Code-Plus Programs For Disaster Resistance, https://www.wbdg.org/resources/code-
plus-programs-disaster-resistance (last visited Mar. 6, 2021).
39 See, e.g., Institute for Business & Home Safety, https://ibhs.org/ (last visited Mar. 6, 2021).
40 S. 627.914, F.S.
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ineligible for coverage as “commercial residential” if 50 percent or more of the units are rented more
than eight times in a calendar year for a rental agreement period of less than 30 days.41
Effect of the Bill
The bill allows Citizens the option to insure residential condominiums under commercial residential
wind-only coverage if the units are intended for residential use, but are rented on a short-term basis.
Delivery of Policy Documents
The law requires that an insurance policy be mailed, delivered, or electronically transmitted to an
insured within 60 days of taking effect.42
Effect of the Bill
The bill authorizes an insurer to electronically transmit all policy documents and claims communications
to an insured, provided the policy is sold in a wholly electronic manner and the insurer provides a
disclosure to the insured or policyholder at the time of sale.
Limited Coverage Notice Requirements
Automobile insurance policies (i.e., policies for certain antique cars) that do not contain coverage for
bodily injury and property damage are required to include a notice of limited coverage that is rubber
stamped on the policy jacket.
Effect of the Bill
The bill eliminates the rubber stamp requirement for the notice of limited coverage. By removing the
rubber stamp requirement, the notice of limited coverage for such policies can be provided to
policyholders electronically.
Replacement Cost Coverage and Law and Ordinance Coverage
The law requires insurers to offer homeowner’s insurance policies providing that any loss will be
adjusted on the basis of replacement costs to the dwelling.43 Replacement cost is usually defined in a
policy as the cost to repair or replace damaged property with materials of like kind and quality, without
any deduction for depreciation.44 For a dwelling, an insurer must initially pay at least the actual cash
value of the insured loss, less any applicable deductible, and then pay any remaining amounts (i.e.,
replacement costs) only as to repairs and expenses that are actually incurred.45
Insurers must also offer replacement cost coverage that includes law and ordinance coverage, which
covers the additional costs incurred in repairing a home to bring it into compliance with new laws and
ordinances that were not in effect when the home was originally built. The law provides that law and
ordinance coverage may be limited to either 25 percent or 50 percent of the dwelling unit.46 Law and
41 S. 627.351(6), F.S.
42 S. 627.421(1), F.S.
43 S. 627.7011, F.S.
44 National Association of Insurance Commissioners, Glossary of Insurance Terms,
https://content.naic.org/consumer_glossary.htm (last visited Mar. 3, 2021).
45 S. 627.7011(3)(a), F.S.
46 S. 627.7011(1), F.S.
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ordinance coverage assists in paying for increased construction costs as a result of newer building
codes or ordinances when repairing or replacing a dwelling after a covered loss.
Effect of the Bill
The bill provides that for purposes of law and ordinance coverage, the applicable laws and ordinances
are those which were enacted on or before the time of a covered loss.
Surplus Lines
Surplus lines insurance refers to a category of insurance for risks that the admitted market is unable or
unwilling to provide coverage.47 There are three basic categories of surplus lines risks:
Specialty risks that have unusual underwriting characteristics or underwriting characteristics that
admitted insurers view as undesirable;
Niche risks for which admitted carriers do not have a filed policy form or rate; and
Capacity risks that are risks where an insured needs higher coverage limits than those that are
available in the admitted market.
Surplus lines insurers are not “authorized” insurers as defined in the Florida Insurance Code, which
means they do not obtain a certificate of authority from OIR to transact insurance in Florida.48 Rather,
surplus lines insurers are “unauthorized” insurers that may transact surplus lines insurance, if they are
made eligible by OIR.49
The Florida Surplus Lines Service Office (FSLSO) is a self-regulating, nonprofit association of approved
unauthorized insurers established by the Legislature in 1997.50 The FSLSO was created to protect
consumers seeking surplus line insurance in the state, monitor marketplace compliance, and protect
state revenues.51 All licensed surplus lines agents are deemed to be members of the FSLSO.52 The
FSLSO operates under the supervision of a nine-member board of governors, which has oversight
responsibilities for the Florida surplus lines market.
“To export” a policy53 means to place it with an unauthorized insurer under the Surplus Lines Law.54
Unless an exception applies, the insurance agent must make a diligent effort to procure the desired
coverage from admitted insurers before the agent can place insurance in the surplus lines market.55
“Diligent effort” means, subject to certain exceptions, seeking coverage from and being rejected by at
least three authorized insurers in the admitted market.56
In 2014, the Legislature created s. 627.715, F.S., which provided a regulatory framework for admitted
insurers to write personal lines residential flood coverage. The bill also allowed a surplus lines agent to
export a contract or endorsement providing flood coverage to an eligible surplus lines insurer without
making a diligent effort to seek coverage from three or more authorized insurers.57 The bill provided
that the exemption to the diligent effort requirement expired on July 1, 2017. In 2017, the Legislature
extended the exemption until July 1, 2019, or earlier if OIR determined there was an adequate flood
insurance market among admitted insurers.58 The exemption expired on July 1, 2019.
47 S. 626.921, F.S.
48 S. 624.09, F.S.
49 Id.
50 S. 626.921, F.S.
51 Id.
52 S. 626.921(2), F.S.
53 S. 626.914(3), F.S.
54 Sections 626.913 – 626.937, F.S., constitute the “Surplus Lines Law.”
55 S. 626.916(1)(a), F.S.
56 If the cost to replace a residential dwelling is $700,000 or more, then only one coverage rejection is needed prior to
export. S. 626.914(4), F.S.
57 Ch. 2014-80, Laws of Fla.
58 Ch. 2017-142, Laws of Fla.
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Effect of the Bill
The bill allows surplus lines agents to export flood coverage to eligible surplus lines insurers without
meeting the diligent effort requirement.
Assignment Agreements
An assignment is the voluntary transfer of the rights of one party under a contract to another party.
Current law generally allows an insurance policyholder to assign the benefits of the policy, such as the
right to be paid, to another party. This assignment is often called an “assignment of benefits” or “AOB”.
An “assignment agreement” is an instrument that assigns or transfers post-loss benefits under a
residential or commercial property insurance policy to or from a person who protects, repairs, restores,
or replaces property or mitigates against further property damage.59
Once an assignment is made, the assignee can take action to enforce the contract. Accordingly, if the
benefits are assigned and the insurer refuses to pay, the assignee may file a lawsuit against the
insurer. An assignee must give an insurer and the assignor prior written notice of at least 10 business
days before filing suit on a claim.60 The notice may not be served before the insurer has made a
determination of coverage.61 The notice must specify the damages in dispute, the amount claimed, and
a pre-suit settlement demand, and must include an itemized, detailed written invoice or estimate of the
work performed or to be performed.62
The law requires that pre-suit notice be sent by certified mail, return receipt requested, or by electronic
delivery, but does not specify the mailing address or e-mail address where it must be sent. This may
delay receipt of notice and thus reduce an insurer’s actual time to respond.
Effect of the Bill
The bill expands the scope of services covered under the definition of “assignment agreement.” The bill
adds inspection services to the scope of services covered by an “assignment agreement” and specifies
that the list of services enumerated in the statute is not exhaustive. The bill provides that fees charged
by a public adjuster are not included in the definition of “assignment agreement.” Additionally, the bill
requires that notice of intent to initiate litigation, sent by certified mail, be sent to the name and mailing
address specified by the insurer in the policy forms and that notice sent electronically be sent to the e-
mail address designated by the insurer in the policy forms.
Agent Licensing
General Lines Agent
A general lines agent63 is one who sells the following lines of insurance: property;64 casualty,65 including
commercial liability insurance underwritten by a risk retention group, a commercial self-insurance
fund,66 or a workers’ compensation self-insurance fund;67 surety;68 health;69 and, marine.70 The general
lines agent may only transact health insurance for an insurer that the general lines agent also
59 S. 627.7152(1)(b), F.S.
60 S. 627.7152(9)(a), F.S.
61 Id.
62 Id.
63 S. 626.015(5), F.S.
64 S. 624.604, F.S.
65 S. 624.605, F.S.
66 S. 624.462, F.S.
67 S. 624.4621, F.S.
68 S. 626.606, F.S.
69 Ss. 624.603 and 627.6482, F.S.
70 S. 624.607, F.S.
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represents for property and casualty insurance. If the general lines agent wishes to represent health
insurers that are not also property and casualty insurers, they must be licensed as a health insurance
agent.71
Personal Lines Agent
A personal lines agent is a general lines agent who is limited to transacting business related to property
and casualty insurance sold to individuals and families for noncommercial purposes.72
Motor Vehicle Servicing Agreements
Motor vehicle service agreements provide vehicle owners with protection when the manufacturer’s
warranty expires. A motor vehicle service agreement indemnifies the vehicle owner (or holder of the
agreement) against loss caused by failure of any mechanical or other component part, or any
mechanical or other component part that does not function as it was originally intended. Motor vehicle
service agreements can only be sold by a licensed and appointed salesperson. Salespersons are
licensed in the same manner as insurance representatives under ch. 626, F.S., with some exceptions
to the requirements applied to insurance representatives.
Service Warranty Associations
Service warranty associations are entities, other than insurers, which issue service warranties. A
service warranty is an agreement or maintenance service contract equal to or greater than 1 year in
length to repair, replace, or maintain a consumer product, or for indemnification for repair, replacement,
or maintenance, for operational or structural failure due to a defect in materials or workmanship, normal
wear and tear, power surge, or accidental damage from handling in return for the payment of a
segregated charge by the consumer.73 No person or entity shall solicit, negotiate, advertise, or
effectuate service warranty contracts in this state unless such person or entity is licensed and
appointed as a sales representative.74
Home Warranty Contracts
A home warranty association is any corporation or any other organization, other than an authorized
insurer, issuing home warranties. A home warranty is any contract or agreement whereby a person
undertakes to indemnify the warranty holder against the cost of repair or replacement, or actually
furnishes repair or replacement, of any structural component or appliance of a home, necessitated by
wear and tear or an inherent defect of any such structural component or appliance or necessitated by
the failure of an inspection to detect the likelihood of any such loss. No person may solicit, negotiate, or
effectuate home warranty contracts for remuneration in this state unless such person is licensed and
appointed as a sales representative.75
Effect of the Bill
The bill allows a licensed general lines agent or licensed personal lines agent to advertise, solicit,
negotiate, or sell motor vehicle service agreements, home warranty contracts, or service warranty
71 S. 626.829, F.S.
72 S. 626.015(17), F.S.
73 S. 634.401(13), F.S.
74 S. 634.419, F.S. A “sales representative” is any person, retail store, corporation, partnership, or sole proprietorship
utilized by an insurer or service warranty association for the purpose of selling or issuing service warranties. However, in
the case of service warranty associations selling service warranties from one or more business locations, the person in
charge of each location may be considered the sales representative. S. 634.401(12), F.S.
75 S. 634.317, F.S. “Sales representative” is any person with whom an insurer or home inspection or warranty association
has a contract and who is utilized by such insurer or association for the purpose of selling or issuing home warranties. The
term includes all employees of an insurer or association engaged directly in the sale or issuance of home warranties.
S. 634.301(12), F.S.
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contracts without being separately licensed as a sales representative or insurance representative, as
applicable.
B. SECTION DIRECTORY:
Section 1. Amends s. 215.555, F.S., relating to Florida Hurricane Catastrophe Fund.
Section 2. Amends s. 624.423, F.S., relating to serving process.
Section 3. Creates s. 624.46227, F.S., relating to meeting requirements.
Section 4. Amends s. 626.7351, F.S., relating to qualifications for customer representative’s license.
Section 5. Amends s. 626.856, F.S., relating to “company employee adjuster” defined.
Section 6. Amends s. 626.9202, F.S., relating to loss run statements for all lines of insurance.
Section 7. Amends s. 627.062, F.S., relating to rate standards.
Section 8. Amends s. 627.0629, F.S., relating to residential property insurance; rate filings.
Section 9. Amends s. 627.072, F.S., relating to making and use of rates.
Section 10. Amends s. 627.351, F.S., relating to insurance risk apportionment plans.
Section 11. Amends s. 627.421, F.S., relating to delivery of policy.
Section 12. Amends s. 627.444, F.S., relating to loss run statements for all lines of insurance.
Section 13. Repeals s. 627.6647, F.S., relating to release of claims experience.
Section 14. Amends s. 627.7011, F.S., relating to homeowners’ policies; offer of replacement cost
coverage and law and ordinance coverage.
Section 15. Amends s. 627.715, F.S., relating to flood insurance.
Section 16. Amends s. 627.7152, F.S., relating to assignment agreements.
Section 17. Amends s. 627.7276, F.S., relating to notice of limited coverage.
Section 18. Amends s. 634.171, F.S., relating to salesperson to be licensed and appointed.
Section 19. Amends s. 634.317, F.S., relating to license and appointment required.
Section 20. Amends s. 634.419, F.S., relating to license and appointment required.
Section 21. Reenacts s. 627.7153, F.S., relating to policies restricting assignment of post-loss benefits
under a property insurance policy.
Section 22. Provides an effective date of July 1, 2021, except as otherwise provided.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
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DATE: 4/18/2021
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
OIR has indicated the bill may have positive economic impacts for policyholders, who may benefit from
lower collateral protection insurance costs if more policies are eligible for coverage from the FHCF.76
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
On March 10, 2021, the Insurance & Banking Subcommittee considered the bill, adopted one amendment, and
reported the bill favorably as a committee substitute. The amendment made the following changes to the bill:
Added a new section to the bill authorizing an association, trust, or pool created for the purpose of
forming or managing a risk management mechanism or providing self-insurance for a public entity to
establish a quorum and conduct public business through communication media technology.
Added a new section to the bill adding the designation of Insurance Customer Service Representative
from Statewide Insurance Associates LLC to the list of several designations, one of which meets a
required qualification for an applicant for licensure as a customer representative if earned within 4 years
preceding the date of filing an application for licensure.
Restored language in two statutes relating to loss run statements by replacing “each claim” with “all
claims” in order to ensure that protected medical information is not inadvertently disclosed on a loss run
statement.
76 OIR Agency Analysis of 2021 House Bill 815, p. 6 (Feb. 23, 2021).
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Moved a new provision in the bill that a residential property insurance filing may use a weighted or
straight average of two or more models found by the Florida Commission on Hurricane Loss Projection
Methodology to be accurate or reliable to a more appropriate location in the same section.
Made a modification to a provision in the bill allowing an insurer to file a rating plan with rate
differentials based on windstorm mitigation construction standards to add that the standards must meet
the requirements of the rate filing statute.
Added a new section to the bill authorizing an insurer to electronically transmit policy documents and
claims communications to an insured, provided the policy is sold in a wholly electronic manner and the
insurer provides a disclosure to the insured or policyholder at the time of sale.
Deleted language in the bill requiring that an insured request reimbursement from an insurer for the
difference between actual cash value and replacement costs by the latter of no less than 2 years from
the date of the loss or 1 year from the notice of the claim.
Provided that fees charged by a public adjuster are not included in the definition of “assignment
agreement.”
Revised the notice requirements for certain motor vehicle policies that do not provide coverage for
bodily injury and property damage liability and deletes a requirement that such policies be rubber
stamped. By removing the rubber stamp requirement, the notice of limited coverage for such policies
can be provided to policyholders electronically.
The analysis is drafted to the committee substitute as passed by the Insurance & Banking 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 815 2021
1 A bill to be entitled
2 An act relating to insurance; amending s. 215.555,
3 F.S.; redefining the term "covered policy" under the
4 Florida Hurricane Catastrophe Fund in relation to
5 certain collateral protection insurance policies;
6 amending s. 624.423, F.S.; specifying when service of
7 process is valid and binding upon insurers; creating
8 s. 624.46227, F.S.; authorizing an association, trust,
9 or pool created for the purpose of forming a risk
10 management mechanism or providing self-insurance for a
11 public entity to establish a quorum and conduct public
12 business through communications media technology;
13 amending s. 626.7351, F.S.; revising a qualification
14 for licensure as a customer representative; amending
15 s. 626.856, F.S.; revising the definition of the term
16 "company employee adjuster"; amending s. 626.9202,
17 F.S.; revising the definition of the term "loss run
18 statement"; specifying the entities that must receive
19 requests for loss run statements; specifying that
20 insurers must provide loss run statements under
21 certain circumstances; revising the required claims
22 history in loss run statements; providing
23 applicability; limiting loss run statement requests
24 with respect to group health insurance policies to
25 group policyholders; amending s. 627.062, F.S.;
Page 1 of 30
CODING: Words stricken are deletions; words underlined are additions.
hb0815-01-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 815 2021
26 revising the factors for determining whether an
27 insurance rate filing is excessive, inadequate, or
28 unfairly discriminatory; amending s. 627.0629, F.S.;
29 authorizing, rather than requiring, rate filings for
30 certain residential property insurance to include
31 certain rate factors; authorizing insurers to file
32 certain insurance rating plans based on certain
33 windstorm mitigation construction standards;
34 authorizing insurers to require policyholders to
35 provide evidence of compliance with mitigation
36 standards under certain conditions; amending s.
37 627.072, F.S.; providing a ratemaking factor for
38 workers' compensation and employer's liability
39 insurance; amending s. 627.351, F.S.; revising
40 conditions for determining the ineligibility of
41 condominiums for wind-only coverage; amending s.
42 627.421, F.S.; authorizing insurers to electronically
43 transmit policy documents and claims communications
44 under certain circumstances; amending s. 627.444,
45 F.S.; revising the definition of the term "loss run
46 statement"; specifying the entities that must receive
47 requests for loss run statements; specifying that
48 insurers must provide loss run statements under
49 certain circumstances; revising the required claims
50 history in loss run statements; providing
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51 applicability; limiting loss run statement requests
52 with respect to group health insurance policies to
53 group policyholders; repealing s. 627.6647, F.S.,
54 relating to the release of information required for
55 bid to group health insurance policyholders; amending
56 s. 627.7011, F.S.; revising conditions for inclusion
57 of costs for law and ordinance coverage in loss
58 adjustments under certain homeowners' policies;
59 amending s. 627.715, F.S.; providing an exemption from
60 a diligent effort requirement for agents exporting
61 contracts or endorsements providing flood coverage;
62 amending s. 627.7152, F.S.; revising the definition of
63 the term "assignment agreement"; specifying the
64 addresses to which a notice of intent to initiate
65 litigation must be served; amending s. 627.7276, F.S.;
66 revising notice requirements for motor vehicle
67 policies that do not provide coverage for bodily
68 injury and property damage liability; amending ss.
69 634.171, 634.317, and 634.419, F.S.; authorizing
70 licensed personal lines or general lines agents to
71 solicit, negotiate, advertise, or sell motor vehicle
72 service agreements, home warranty contracts, and
73 service warranties, respectively, without a sales
74 representative license; reenacting s. 627.7153(1) and
75 (2)(d), F.S., relating to policies restricting
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76 assignment of post-loss benefits under a property
77 insurance policy, to incorporate the amendment made by
78 the act to s. 627.7152, F.S., in references thereto;
79 providing effective dates.
80
81 Be It Enacted by the Legislature of the State of Florida:
82
83 Section 1. Effective June 1, 2021, paragraph (c) of
84 subsection (2) of section 215.555, Florida Statutes, is amended
85 to read:
86 215.555 Florida Hurricane Catastrophe Fund.—
87 (2) DEFINITIONS.—As used in this section:
88 (c) "Covered policy" means any insurance policy covering
89 residential property in this state, including, but not limited
90 to, any homeowner, mobile home owner, farm owner, condominium
91 association, condominium unit owner, tenant, or apartment
92 building policy, or any other policy covering a residential
93 structure or its contents issued by any authorized insurer,
94 including a commercial self-insurance fund holding a certificate
95 of authority issued by the Office of Insurance Regulation under
96 s. 624.462, the Citizens Property Insurance Corporation, and any
97 joint underwriting association or similar entity created under
98 law. The term "covered policy" includes any collateral
99 protection insurance policy covering personal residences which
100 protects both the borrower's and the lender's financial
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101 interests, in an amount at least equal to the coverage amount
102 for the dwelling in place under the lapsed homeowner's policy,
103 the coverage amount that the homeowner has been notified of, or
104 the coverage amount the homeowner requests from the collateral
105 protection insurer, if such collateral protection insurance
106 policy can be accurately reported as required in subsection (5).
107 Additionally, covered policies include policies covering the
108 peril of wind removed from the Florida Residential Property and
109 Casualty Joint Underwriting Association or from the Citizens
110 Property Insurance Corporation, created under s. 627.351(6), or
111 from the Florida Windstorm Underwriting Association, created
112 under s. 627.351(2), by an authorized insurer under the terms
113 and conditions of an executed assumption agreement between the
114 authorized insurer and such association or Citizens Property
115 Insurance Corporation. Each assumption agreement between the
116 association and such authorized insurer or Citizens Property
117 Insurance Corporation must be approved by the Office of
118 Insurance Regulation before the effective date of the
119 assumption, and the Office of Insurance Regulation must provide
120 written notification to the board within 15 working days after
121 such approval. "Covered policy" does not include any policy that
122 excludes wind coverage or hurricane coverage or any reinsurance
123 agreement and does not include any policy otherwise meeting this
124 definition which is issued by a surplus lines insurer or a
125 reinsurer. All commercial residential excess policies and all
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126 deductible buy-back policies that, based on sound actuarial
127 principles, require individual ratemaking shall be excluded by
128 rule if the actuarial soundness of the fund is not jeopardized.
129 For this purpose, the term "excess policy" means a policy that
130 provides insurance protection for large commercial property
131 risks and that provides a layer of coverage above a primary
132 layer insured by another insurer.
133 Section 2. Effective upon this act becoming a law,
134 subsection (3) of section 624.423, Florida Statutes, is amended
135 to read:
136 624.423 Serving process.—
137 (3) Service of process is valid and binding upon the
138 insurer on the date process served upon the Chief Financial
139 Officer is delivered to the insurer and sent or the insurer has
140 been notified such information has been made available on a
141 secured network in accordance with this section and s.
142 624.307(9) shall for all purposes constitute valid and binding
143 service thereof upon the insurer.
144 Section 3. Section 624.46227, Florida Statutes, is created
145 to read:
146 624.46227 Meeting requirements.—Any association, trust, or
147 pool authorized by state law and created for the purpose of
148 forming a risk management mechanism or providing self-insurance
149 for public entities in this state may establish a quorum and
150 conduct public business through communications media technology.
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151 Section 4. Subsection (3) of section 626.7351, Florida
152 Statutes, is amended to read:
153 626.7351 Qualifications for customer representative's
154 license.—The department shall not grant or issue a license as
155 customer representative to any individual found by it to be
156 untrustworthy or incompetent, or who does not meet each of the
157 following qualifications:
158 (3) Within 4 years preceding the date that the application
159 for license was filed with the department, the applicant has
160 earned the designation of Accredited Advisor in Insurance (AAI),
161 Associate in General Insurance (AINS), or Accredited Customer
162 Service Representative (ACSR) from the Insurance Institute of
163 America; the designation of Certified Insurance Counselor (CIC)
164 from the Society of Certified Insurance Service Counselors; the
165 designation of Certified Professional Service Representative
166 (CPSR) from the National Foundation for CPSR; the designation of
167 Certified Insurance Service Representative (CISR) from the
168 Society of Certified Insurance Service Representatives; the
169 designation of Certified Insurance Representative (CIR) from
170 All-Lines Training; the designation of Insurance Customer
171 Service Representative (ICSR) from Statewide Insurance
172 Associates LLC; the designation of Professional Customer Service
173 Representative (PCSR) from the Professional Career Institute;
174 the designation of Registered Customer Service Representative
175 (RCSR) from a regionally accredited postsecondary institution in
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176 the state whose curriculum is approved by the department and
177 includes comprehensive analysis of basic property and casualty
178 lines of insurance and testing which demonstrates mastery of the
179 subject; or a degree from an accredited institution of higher
180 learning approved by the department when the degree includes a
181 minimum of 9 credit hours of insurance instruction, including
182 specific instruction in the areas of property, casualty, and
183 inland marine insurance. The department shall adopt rules
184 establishing standards for the approval of curriculum.
185 Section 5. Section 626.856, Florida Statutes, is amended
186 to read:
187 626.856 "Company employee adjuster" defined.—A "company
188 employee adjuster" means a person licensed as an all-lines
189 adjuster who is appointed and employed on an insurer's staff of
190 adjusters, by an affiliate, or by a wholly owned subsidiary of
191 the insurer, and who undertakes on behalf of such insurer or
192 other insurers under common control or ownership to ascertain
193 and determine the amount of any claim, loss, or damage payable
194 under a contract of insurance, or undertakes to effect
195 settlement of such claim, loss, or damage.
196 Section 6. Effective upon this act becoming a law,
197 subsections (1), (2), and (4) of section 626.9202, Florida
198 Statutes, are amended, and subsections (7) and (8) are added to
199 that section, to read:
200 626.9202 Loss run statements for all lines of insurance.—
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201 (1) As used in this section, the term:
202 (a) "Loss run statement" means a report that contains the
203 policy number, the period of coverage, the number of claims, the
204 paid losses on all claims, and the date of each loss. The term
205 does not include supporting claim file documentation, including,
206 but not limited to, copies of claim files, investigation
207 reports, evaluation statements, insureds' statements, and
208 documents protected by a common law or statutory privilege. As
209 applied to group health insurance, the term means a report that
210 also contains the premiums paid, the number of insureds on a
211 monthly basis, and the dependent status.
212 (b) "Provide" means to electronically send a document or
213 to allow access through an electronic portal to view or generate
214 a document.
215 (2) Notwithstanding any other law, an insurer shall
216 provide to an insured within 15 calendar days after an
217 individual or entity designated by the insurer receives receipt
218 of the insured's written request, either:
219 (a) A loss run statement; or
220 (b) For personal lines of insurance, information on how to
221 obtain a loss run statement at no charge through a consumer
222 reporting agency. However, this section does not prohibit an
223 insured from requesting a loss run statement after receiving
224 information from a consumer reporting agency, in which case the
225 insurer must then provide the loss run statement within 15
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226 calendar days after the individual or entity designated by the
227 insurer receives the insured's subsequent written request.
228 (4) A loss run statement provided pursuant to this section
229 must contain a claims history with the insurer for the preceding
230 3 5 years or, if the claims history is less than 3 5 years, a
231 complete claims history with the insurer.
232 (7) This section does not apply to a life insurer as
233 defined in s. 624.602.
234 (8) For group health insurance, only the group
235 policyholder may request and be provided a loss run statement
236 pursuant to this section.
237 Section 7. Paragraph (b) of subsection (2) of section
238 627.062, Florida Statutes, is amended to read:
239 627.062 Rate standards.—
240 (2) As to all such classes of insurance:
241 (b) Upon receiving a rate filing, the office shall review
242 the filing to determine if a rate is excessive, inadequate, or
243 unfairly discriminatory. In making that determination, the
244 office shall, in accordance with generally accepted and
245 reasonable actuarial techniques, consider the following factors:
246 1. Past and prospective loss experience within and without
247 this state.
248 2. Past and prospective expenses.
249 3. The degree of competition among insurers for the risk
250 insured.
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251 4. Investment income reasonably expected by the insurer,
252 consistent with the insurer's investment practices, from
253 investable premiums anticipated in the filing, plus any other
254 expected income from currently invested assets representing the
255 amount expected on unearned premium reserves and loss reserves.
256 The commission may adopt rules using reasonable techniques of
257 actuarial science and economics to specify the manner in which
258 insurers calculate investment income attributable to classes of
259 insurance written in this state and the manner in which
260 investment income is used to calculate insurance rates. Such
261 manner must contemplate allowances for an underwriting profit
262 factor and full consideration of investment income that produces
263 a reasonable rate of return; however, investment income from
264 invested surplus may not be considered.
265 5. The reasonableness of the judgment reflected in the
266 filing.
267 6. Dividends, savings, or unabsorbed premium deposits
268 allowed or returned to policyholders, members, or subscribers in
269 this state.
270 7. The adequacy of loss reserves.
271 8. The cost of reinsurance. The office may not disapprove
272 a rate as excessive solely due to the insurer having obtained
273 catastrophic reinsurance to cover the insurer's estimated 250-
274 year probable maximum loss or any lower level of loss.
275 9. Trend factors, including trends in actual losses per
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276 insured unit for the insurer making the filing.
277 10. Conflagration and catastrophe hazards, if applicable.
278 11. Projected hurricane losses, if applicable, which must
279 be estimated using a model or method found to be acceptable or
280 reliable by the Florida Commission on Hurricane Loss Projection
281 Methodology, and as further provided in s. 627.0628. A
282 residential property insurance rate filing may use a weighted or
283 straight average of two or more such models or methods.
284 12. Projected flood losses for personal residential
285 property insurance, if applicable, which may be estimated using
286 a model or method, or a straight average of model results or
287 output ranges, independently found to be acceptable or reliable
288 by the Florida Commission on Hurricane Loss Projection
289 Methodology and as further provided in s. 627.0628.
290 13. A reasonable margin for underwriting profit and
291 contingencies.
292 14. The cost of medical services, if applicable.
293 15. Other relevant factors that affect the frequency or
294 severity of claims or expenses.
295
296 The provisions of this subsection do not apply to workers'
297 compensation, employer's liability insurance, and motor vehicle
298 insurance.
299 Section 8. Paragraph (b) of subsection (2) of section
300 627.0629, Florida Statutes, is amended, and subsection (9) is
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301 added to that section, to read:
302 627.0629 Residential property insurance; rate filings.—
303 (2)
304 (b) A rate filing for residential property insurance made
305 more than 150 days after approval by the office of a building
306 code rating factor plan submitted by a statewide rating
307 organization may shall include positive and negative rate
308 factors that reflect the manner in which building code
309 enforcement in a particular jurisdiction addresses risk of wind
310 damage. The rate filing must shall include variations from
311 standard rate factors on an individual basis based on inspection
312 of a particular structure by a licensed home inspector. If an
313 inspection is requested by the insured, the insurer may require
314 the insured to pay the reasonable cost of the inspection. This
315 paragraph applies to structures constructed or renovated after
316 the implementation of this paragraph.
317 (9) An insurer may file with the office a personal lines
318 residential property insurance rating plan that provides
319 justified premium discounts, credits, or other rate
320 differentials based on windstorm mitigation construction
321 standards developed by an independent, not-for-profit,
322 scientific research organization, if such standards meet the
323 requirements of this section. The insurer may require a
324 policyholder who elects to construct or retrofit the structure,
325 in whole or in part, for windstorm mitigation purposes to
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326 present to the insurer evidence of compliance with the
327 mitigation standards before receiving any premium discount,
328 credit, or rate reduction allowed under the rating plan.
329 Section 9. Subsection (1) of section 627.072, Florida
330 Statutes, is amended to read:
331 627.072 Making and use of rates.—
332 (1) As to workers' compensation and employer's liability
333 insurance, the following factors shall be used in the
334 determination and fixing of rates:
335 (a) The past loss experience and prospective loss
336 experience within and outside this state;
337 (b) The impact resulting from the past loss experience and
338 prospective loss experience for insurers whose data are missing
339 from statewide experience due to insolvency. Prior reported data
340 for such insurers and all other relevant information may be used
341 to assess the impact on rates;
342 (c)(b) The conflagration and catastrophe hazards;
343 (d)(c) A reasonable margin for underwriting profit and
344 contingencies;
345 (e)(d) Dividends, savings, or unabsorbed premium deposits
346 allowed or returned by insurers to their policyholders, members,
347 or subscribers;
348 (f)(e) Investment income on unearned premium reserves and
349 loss reserves;
350 (g)(f) Past expenses and prospective expenses, both those
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351 countrywide and those specifically applicable to this state; and
352 (h)(g) All other relevant factors, including judgment
353 factors, within and outside this state.
354 Section 10. Paragraph (a) of subsection (6) of section
355 627.351, Florida Statutes, is amended to read:
356 627.351 Insurance risk apportionment plans.—
357 (6) CITIZENS PROPERTY INSURANCE CORPORATION.—
358 (a) The public purpose of this subsection is to ensure
359 that there is an orderly market for property insurance for
360 residents and businesses of this state.
361 1. The Legislature finds that private insurers are
362 unwilling or unable to provide affordable property insurance
363 coverage in this state to the extent sought and needed. The
364 absence of affordable property insurance threatens the public
365 health, safety, and welfare and likewise threatens the economic
366 health of the state. The state therefore has a compelling public
367 interest and a public purpose to assist in assuring that
368 property in the state is insured and that it is insured at
369 affordable rates so as to facilitate the remediation,
370 reconstruction, and replacement of damaged or destroyed property
371 in order to reduce or avoid the negative effects otherwise
372 resulting to the public health, safety, and welfare, to the
373 economy of the state, and to the revenues of the state and local
374 governments which are needed to provide for the public welfare.
375 It is necessary, therefore, to provide affordable property
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376 insurance to applicants who are in good faith entitled to
377 procure insurance through the voluntary market but are unable to
378 do so. The Legislature intends, therefore, that affordable
379 property insurance be provided and that it continue to be
380 provided, as long as necessary, through Citizens Property
381 Insurance Corporation, a government entity that is an integral
382 part of the state, and that is not a private insurance company.
383 To that end, the corporation shall strive to increase the
384 availability of affordable property insurance in this state,
385 while achieving efficiencies and economies, and while providing
386 service to policyholders, applicants, and agents which is no
387 less than the quality generally provided in the voluntary
388 market, for the achievement of the foregoing public purposes.
389 Because it is essential for this government entity to have the
390 maximum financial resources to pay claims following a
391 catastrophic hurricane, it is the intent of the Legislature that
392 the corporation continue to be an integral part of the state and
393 that the income of the corporation be exempt from federal income
394 taxation and that interest on the debt obligations issued by the
395 corporation be exempt from federal income taxation.
396 2. The Residential Property and Casualty Joint
397 Underwriting Association originally created by this statute
398 shall be known as the Citizens Property Insurance Corporation.
399 The corporation shall provide insurance for residential and
400 commercial property, for applicants who are entitled, but, in
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401 good faith, are unable to procure insurance through the
402 voluntary market. The corporation shall operate pursuant to a
403 plan of operation approved by order of the Financial Services
404 Commission. The plan is subject to continuous review by the
405 commission. The commission may, by order, withdraw approval of
406 all or part of a plan if the commission determines that
407 conditions have changed since approval was granted and that the
408 purposes of the plan require changes in the plan. For the
409 purposes of this subsection, residential coverage includes both
410 personal lines residential coverage, which consists of the type
411 of coverage provided by homeowner, mobile home owner, dwelling,
412 tenant, condominium unit owner, and similar policies; and
413 commercial lines residential coverage, which consists of the
414 type of coverage provided by condominium association, apartment
415 building, and similar policies.
416 3. With respect to coverage for personal lines residential
417 structures:
418 a. Effective January 1, 2014, a structure that has a
419 dwelling replacement cost of $1 million or more, or a single
420 condominium unit that has a combined dwelling and contents
421 replacement cost of $1 million or more, is not eligible for
422 coverage by the corporation. Such dwellings insured by the
423 corporation on December 31, 2013, may continue to be covered by
424 the corporation until the end of the policy term. The office
425 shall approve the method used by the corporation for valuing the
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426 dwelling replacement cost for the purposes of this subparagraph.
427 If a policyholder is insured by the corporation before being
428 determined to be ineligible pursuant to this subparagraph and
429 such policyholder files a lawsuit challenging the determination,
430 the policyholder may remain insured by the corporation until the
431 conclusion of the litigation.
432 b. Effective January 1, 2015, a structure that has a
433 dwelling replacement cost of $900,000 or more, or a single
434 condominium unit that has a combined dwelling and contents
435 replacement cost of $900,000 or more, is not eligible for
436 coverage by the corporation. Such dwellings insured by the
437 corporation on December 31, 2014, may continue to be covered by
438 the corporation only until the end of the policy term.
439 c. Effective January 1, 2016, a structure that has a
440 dwelling replacement cost of $800,000 or more, or a single
441 condominium unit that has a combined dwelling and contents
442 replacement cost of $800,000 or more, is not eligible for
443 coverage by the corporation. Such dwellings insured by the
444 corporation on December 31, 2015, may continue to be covered by
445 the corporation until the end of the policy term.
446 d. Effective January 1, 2017, a structure that has a
447 dwelling replacement cost of $700,000 or more, or a single
448 condominium unit that has a combined dwelling and contents
449 replacement cost of $700,000 or more, is not eligible for
450 coverage by the corporation. Such dwellings insured by the
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451 corporation on December 31, 2016, may continue to be covered by
452 the corporation until the end of the policy term.
453
454 The requirements of sub-subparagraphs b.-d. do not apply in
455 counties where the office determines there is not a reasonable
456 degree of competition. In such counties a personal lines
457 residential structure that has a dwelling replacement cost of
458 less than $1 million, or a single condominium unit that has a
459 combined dwelling and contents replacement cost of less than $1
460 million, is eligible for coverage by the corporation.
461 4. It is the intent of the Legislature that policyholders,
462 applicants, and agents of the corporation receive service and
463 treatment of the highest possible level but never less than that
464 generally provided in the voluntary market. It is also intended
465 that the corporation be held to service standards no less than
466 those applied to insurers in the voluntary market by the office
467 with respect to responsiveness, timeliness, customer courtesy,
468 and overall dealings with policyholders, applicants, or agents
469 of the corporation.
470 5.a. Effective January 1, 2009, a personal lines
471 residential structure that is located in the "wind-borne debris
472 region," as defined in s. 1609.2, International Building Code
473 (2006), and that has an insured value on the structure of
474 $750,000 or more is not eligible for coverage by the corporation
475 unless the structure has opening protections as required under
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476 the Florida Building Code for a newly constructed residential
477 structure in that area. A residential structure is deemed to
478 comply with this sub-subparagraph if it has shutters or opening
479 protections on all openings and if such opening protections
480 complied with the Florida Building Code at the time they were
481 installed.
482 b. Any major structure, as defined in s. 161.54(6)(a),
483 that is newly constructed, or rebuilt, repaired, restored, or
484 remodeled to increase the total square footage of finished area
485 by more than 25 percent, pursuant to a permit applied for after
486 July 1, 2015, is not eligible for coverage by the corporation if
487 the structure is seaward of the coastal construction control
488 line established pursuant to s. 161.053 or is within the Coastal
489 Barrier Resources System as designated by 16 U.S.C. ss. 3501-
490 3510.
491 6. With respect to wind-only coverage for commercial lines
492 residential condominiums, effective July 1, 2014, a condominium
493 may shall be deemed ineligible for coverage when if 50 percent
494 or more of the units are rented more than eight times in a
495 calendar year for a rental agreement period of less than 30
496 days.
497 Section 11. Subsection (6) is added to section 627.421,
498 Florida Statutes, to read:
499 627.421 Delivery of policy.—
500 (6) If a policy is sold in a wholly electronic manner, the
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501 insurer may electronically transmit all policy documents and
502 claims communications to the insured or policyholder if the
503 insurer provides a disclosure to the insured or policyholder at
504 the time of sale.
505 Section 12. Effective upon this act becoming a law,
506 subsections (1), (2), and (4) of section 627.444, Florida
507 Statutes, are amended, and subsections (7) and (8) are added to
508 that section, to read:
509 627.444 Loss run statements for all lines of insurance.—
510 (1) As used in this section, the term:
511 (a) "Loss run statement" means a report that contains the
512 policy number, the period of coverage, the number of claims, the
513 paid losses on all claims, and the date of each loss. The term
514 does not include supporting claim file documentation, including,
515 but not limited to, copies of claim files, investigation
516 reports, evaluation statements, insureds' statements, and
517 documents protected by a common law or statutory privilege. As
518 applied to group health insurance, the term means a report that
519 also contains the premiums paid, the number of insureds on a
520 monthly basis, and the dependent status.
521 (b) "Provide" means to electronically send a document or
522 to allow access through an electronic portal to view or generate
523 a document.
524 (2) Notwithstanding any other law, an insurer shall
525 provide to an insured within 15 calendar days after an
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526 individual or entity designated by the insurer receives receipt
527 of the insured's written request, either:
528 (a) A loss run statement; or
529 (b) For personal lines of insurance, information on how to
530 obtain a loss run statement at no charge through a consumer
531 reporting agency. However, this section does not prohibit an
532 insured from requesting a loss run statement after receiving
533 information from a consumer reporting agency, in which case the
534 insurer must then provide the loss run statement within 15
535 calendar days after the individual or entity designated by the
536 insurer receives the insured's subsequent written request.
537 (4) A loss run statement provided pursuant to this section
538 must contain a claims history with the insurer for the preceding
539 3 5 years or, if the claims history is less than 3 5 years, a
540 complete claims history with the insurer.
541 (7) This section does not apply to a life insurer as
542 defined in s. 624.602.
543 (8) For group health insurance, only the group
544 policyholder may request and be provided a loss run statement
545 pursuant to this section.
546 Section 13. Section 627.6647, Florida Statutes, is
547 repealed.
548 Section 14. Paragraph (b) of subsection (1) of section
549 627.7011, Florida Statutes, is amended to read:
550 627.7011 Homeowners' policies; offer of replacement cost
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551 coverage and law and ordinance coverage.—
552 (1) Prior to issuing a homeowner's insurance policy, the
553 insurer must offer each of the following:
554 (b) A policy or endorsement providing that, subject to
555 other policy provisions, any loss that is repaired or replaced
556 at any location will be adjusted on the basis of replacement
557 costs to the dwelling not exceeding policy limits, rather than
558 actual cash value, and also including costs necessary to meet
559 applicable laws and ordinances enacted on or before the time of
560 loss which regulate regulating the construction, use, or repair
561 of any property or require requiring the tearing down of any
562 property, including the costs of removing debris. However,
563 additional costs necessary to meet applicable laws and
564 ordinances may be limited to 25 percent or 50 percent of the
565 dwelling limit, as selected by the policyholder, and such
566 coverage applies only to repairs of the damaged portion of the
567 structure unless the total damage to the structure exceeds 50
568 percent of the replacement cost of the structure.
569
570 An insurer is not required to make the offers required by this
571 subsection with respect to the issuance or renewal of a
572 homeowner's policy that contains the provisions specified in
573 paragraph (b) for law and ordinance coverage limited to 25
574 percent of the dwelling limit, except that the insurer must
575 offer the law and ordinance coverage limited to 50 percent of
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576 the dwelling limit. This subsection does not prohibit the offer
577 of a guaranteed replacement cost policy.
578 Section 15. Effective upon this act becoming a law,
579 present subsections (4) through (10) of section 627.715, Florida
580 Statutes, are redesignated as subsections (5) through (11),
581 respectively, and a new subsection (4) is added to that section,
582 to read:
583 627.715 Flood insurance.—An authorized insurer may issue
584 an insurance policy, contract, or endorsement providing personal
585 lines residential coverage for the peril of flood or excess
586 coverage for the peril of flood on any structure or the contents
587 of personal property contained therein, subject to this section.
588 This section does not apply to commercial lines residential or
589 commercial lines nonresidential coverage for the peril of flood.
590 An insurer may issue flood insurance policies, contracts,
591 endorsements, or excess coverage on a standard, preferred,
592 customized, flexible, or supplemental basis.
593 (4) An agent may export a contract or an endorsement
594 providing flood coverage to an eligible surplus lines insurer
595 without making a diligent effort to seek such coverage from
596 three or more authorized insurers under s. 626.916(1)(a).
597 Section 16. Effective upon this act becoming a law,
598 paragraph (b) of subsection (1) and paragraph (a) of subsection
599 (9) of section 627.7152, Florida Statutes, are amended to read:
600 627.7152 Assignment agreements.—
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601 (1) As used in this section, the term:
602 (b) "Assignment agreement" means any instrument by which
603 post-loss benefits under a residential property insurance policy
604 or commercial property insurance policy, as that term is defined
605 in s. 627.0625(1), are assigned or transferred, or acquired in
606 any manner, in whole or in part, to or from a person providing
607 services, including, but not limited to, scopes of service, to
608 inspect, protect, repair, restore, or replace property or to
609 mitigate against further damage to the property. The term does
610 not include fees collected by a public adjuster as defined in s.
611 626.854(1).
612 (9)(a) An assignee must provide the named insured,
613 insurer, and the assignor, if not the named insured, with a
614 written notice of intent to initiate litigation before filing
615 suit under the policy. Such notice must be served by certified
616 mail, return receipt requested, to the name and mailing address
617 designated by the insurer in the policy forms, or by electronic
618 delivery at the e-mail address designated by the insurer in the
619 policy forms, at least 10 business days before filing suit, but
620 may not be served before the insurer has made a determination of
621 coverage under s. 627.70131. The notice must specify the damages
622 in dispute, the amount claimed, and a presuit settlement demand.
623 Concurrent with the notice, and as a precondition to filing
624 suit, the assignee must provide the named insured, insurer, and
625 the assignor, if not the named insured, a detailed written
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626 invoice or estimate of services, including itemized information
627 on equipment, materials, and supplies; the number of labor
628 hours; and, in the case of work performed, proof that the work
629 has been performed in accordance with accepted industry
630 standards.
631 Section 17. Section 627.7276, Florida Statutes, is amended
632 to read:
633 627.7276 Notice of limited coverage.—
634 (1) An automobile policy that does not contain coverage
635 for bodily injury and property damage must include a notice be
636 clearly stamped or printed to the effect that such coverage is
637 not included in the policy in the following manner:
638
639 "THIS POLICY DOES NOT PROVIDE BODILY INJURY AND
640 PROPERTY DAMAGE LIABILITY INSURANCE OR ANY OTHER
641 COVERAGE FOR WHICH A SPECIFIC PREMIUM CHARGE IS NOT
642 MADE, AND DOES NOT COMPLY WITH ANY FINANCIAL
643 RESPONSIBILITY LAW."
644
645 (2) This notice legend must accompany appear on the policy
646 declaration page and on the filing back of the policy and be
647 printed in a contrasting color from that used on the policy and
648 in type and larger than the largest type used in the text at
649 least as large as the type and text used on the declaration page
650 thereof, as an overprint or by a rubber stamp impression.
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651 Section 18. Section 634.171, Florida Statutes, is amended
652 to read:
653 634.171 Salesperson to be licensed and appointed;
654 exemptions.—Salespersons for motor vehicle service agreement
655 companies and insurers shall be licensed, appointed, renewed,
656 continued, reinstated, or terminated as prescribed in chapter
657 626 for insurance representatives in general. However, they
658 shall be exempt from all other provisions of chapter 626
659 including fingerprinting, photo identification, education, and
660 examination provisions. License, appointment, and other fees
661 shall be those prescribed in s. 624.501. A licensed and
662 appointed salesperson shall be directly responsible and
663 accountable for all acts of her or his employees and other
664 representatives. Each service agreement company or insurer
665 shall, on forms prescribed by the department, within 30 days
666 after termination of the appointment, notify the department of
667 such termination. An No employee or salesperson of a motor
668 vehicle service agreement company or insurer may not directly or
669 indirectly solicit or negotiate insurance contracts, or hold
670 herself or himself out in any manner to be an insurance agent,
671 unless so qualified, licensed, and appointed therefor under the
672 Florida Insurance Code. A licensed personal lines or general
673 lines agent is not required to be licensed as a salesperson
674 under this section to solicit, negotiate, advertise, or sell
675 motor vehicle service agreements. A motor vehicle service
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676 agreement company is not required to be licensed as a
677 salesperson to solicit, sell, issue, or otherwise transact the
678 motor vehicle service agreements issued by the motor vehicle
679 service agreement company.
680 Section 19. Section 634.317, Florida Statutes, is amended
681 to read:
682 634.317 License and appointment required; exemptions.—A No
683 person may not solicit, negotiate, or effectuate home warranty
684 contracts for remuneration in this state unless such person is
685 licensed and appointed as a sales representative. A licensed and
686 appointed sales representative shall be directly responsible and
687 accountable for all acts of the licensee's employees. A licensed
688 personal lines or general lines agent is not required to be
689 licensed as a sales representative under this section to
690 solicit, negotiate, advertise, or sell home warranty contracts.
691 Section 20. Section 634.419, Florida Statutes, is amended
692 to read:
693 634.419 License and appointment required; exemptions.—A No
694 person or entity may not shall solicit, negotiate, advertise, or
695 effectuate service warranty contracts in this state unless such
696 person or entity is licensed and appointed as a sales
697 representative. Sales representatives shall be responsible for
698 the actions of persons under their supervision. However, a
699 service warranty association licensed as such under this part is
700 shall not be required to be licensed and appointed as a sales
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701 representative to solicit, negotiate, advertise, or effectuate
702 its products. A licensed personal lines or general lines agent
703 is not required to be licensed as a sales representative under
704 this section to solicit, negotiate, advertise, or sell service
705 warranties.
706 Section 21. Effective upon this act becoming a law, for
707 the purpose of incorporating the amendment made by this act to
708 section 627.7152, Florida Statutes, in references thereto,
709 subsection (1) and paragraph (d) of subsection (2) of section
710 627.7153, Florida Statutes, are reenacted to read:
711 627.7153 Policies restricting assignment of post-loss
712 benefits under a property insurance policy.—
713 (1) As used in this section, the term "assignment
714 agreement" has the same meaning as provided in s. 627.7152.
715 (2) An insurer may make available a policy that restricts
716 in whole or in part an insured's right to execute an assignment
717 agreement only if all of the following conditions are met:
718 (d) Each restricted policy include on its face the
719 following notice in 18-point uppercase and boldfaced type:
720
721 THIS POLICY DOES NOT ALLOW THE UNRESTRICTED ASSIGNMENT
722 OF POST-LOSS INSURANCE BENEFITS. BY SELECTING THIS
723 POLICY, YOU WAIVE YOUR RIGHT TO FREELY ASSIGN OR
724 TRANSFER THE POST-LOSS PROPERTY INSURANCE BENEFITS
725 AVAILABLE UNDER THIS POLICY TO A THIRD PARTY OR TO
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726 OTHERWISE FREELY ENTER INTO AN ASSIGNMENT AGREEMENT AS
727 THE TERM IS DEFINED IN SECTION 627.7152 OF THE FLORIDA
728 STATUTES.
729 Section 22. Except as otherwise expressly provided in this
730 act, and except for this section, which shall take effect upon
731 this act becoming a law, this act shall take effect July 1,
732 2021.
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COMMERCE COMMITTEE
CS/HB 815 by Rep. Gregory
Insurance
AMENDMENT SUMMARY
April 19, 2021
Amendment 1 by Rep. Gregory (Line 323):
• Removes a new provision that allows insurers to require that insureds who elect to
construct or retrofit a structure for windstorm mitigation purposes provide evidence of
compliance with mitigation standards before receiving any premium discounts, credits, or
rate reductions allowed under a personal lines residential property insurance rating plan.
• Removes the section relating to replacement cost coverage and law and ordinance
coverage.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 815 (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 Gregory offered the following:
3
4 Amendment (with title amendment)
5 Remove lines 323-577 and insert:
6 requirements of this section.
7 Section 9. Subsection (1) of section 627.072, Florida
8 Statutes, is amended to read:
9 627.072 Making and use of rates.—
10 (1) As to workers' compensation and employer's liability
11 insurance, the following factors shall be used in the
12 determination and fixing of rates:
13 (a) The past loss experience and prospective loss
14 experience within and outside this state;
15 (b) The impact resulting from the past loss experience and
16 prospective loss experience for insurers whose data are missing
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 815 (2021)
Amendment No. 1
17 from statewide experience due to insolvency. Prior reported data
18 for such insurers and all other relevant information may be used
19 to assess the impact on rates;
20 (c)(b) The conflagration and catastrophe hazards;
21 (d)(c) A reasonable margin for underwriting profit and
22 contingencies;
23 (e)(d) Dividends, savings, or unabsorbed premium deposits
24 allowed or returned by insurers to their policyholders, members,
25 or subscribers;
26 (f)(e) Investment income on unearned premium reserves and
27 loss reserves;
28 (g)(f) Past expenses and prospective expenses, both those
29 countrywide and those specifically applicable to this state; and
30 (h)(g) All other relevant factors, including judgment
31 factors, within and outside this state.
32 Section 10. Paragraph (a) of subsection (6) of section
33 627.351, Florida Statutes, is amended to read:
34 627.351 Insurance risk apportionment plans.—
35 (6) CITIZENS PROPERTY INSURANCE CORPORATION.—
36 (a) The public purpose of this subsection is to ensure
37 that there is an orderly market for property insurance for
38 residents and businesses of this state.
39 1. The Legislature finds that private insurers are
40 unwilling or unable to provide affordable property insurance
41 coverage in this state to the extent sought and needed. The
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Bill No. CS/HB 815 (2021)
Amendment No. 1
42 absence of affordable property insurance threatens the public
43 health, safety, and welfare and likewise threatens the economic
44 health of the state. The state therefore has a compelling public
45 interest and a public purpose to assist in assuring that
46 property in the state is insured and that it is insured at
47 affordable rates so as to facilitate the remediation,
48 reconstruction, and replacement of damaged or destroyed property
49 in order to reduce or avoid the negative effects otherwise
50 resulting to the public health, safety, and welfare, to the
51 economy of the state, and to the revenues of the state and local
52 governments which are needed to provide for the public welfare.
53 It is necessary, therefore, to provide affordable property
54 insurance to applicants who are in good faith entitled to
55 procure insurance through the voluntary market but are unable to
56 do so. The Legislature intends, therefore, that affordable
57 property insurance be provided and that it continue to be
58 provided, as long as necessary, through Citizens Property
59 Insurance Corporation, a government entity that is an integral
60 part of the state, and that is not a private insurance company.
61 To that end, the corporation shall strive to increase the
62 availability of affordable property insurance in this state,
63 while achieving efficiencies and economies, and while providing
64 service to policyholders, applicants, and agents which is no
65 less than the quality generally provided in the voluntary
66 market, for the achievement of the foregoing public purposes.
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Bill No. CS/HB 815 (2021)
Amendment No. 1
67 Because it is essential for this government entity to have the
68 maximum financial resources to pay claims following a
69 catastrophic hurricane, it is the intent of the Legislature that
70 the corporation continue to be an integral part of the state and
71 that the income of the corporation be exempt from federal income
72 taxation and that interest on the debt obligations issued by the
73 corporation be exempt from federal income taxation.
74 2. The Residential Property and Casualty Joint
75 Underwriting Association originally created by this statute
76 shall be known as the Citizens Property Insurance Corporation.
77 The corporation shall provide insurance for residential and
78 commercial property, for applicants who are entitled, but, in
79 good faith, are unable to procure insurance through the
80 voluntary market. The corporation shall operate pursuant to a
81 plan of operation approved by order of the Financial Services
82 Commission. The plan is subject to continuous review by the
83 commission. The commission may, by order, withdraw approval of
84 all or part of a plan if the commission determines that
85 conditions have changed since approval was granted and that the
86 purposes of the plan require changes in the plan. For the
87 purposes of this subsection, residential coverage includes both
88 personal lines residential coverage, which consists of the type
89 of coverage provided by homeowner, mobile home owner, dwelling,
90 tenant, condominium unit owner, and similar policies; and
91 commercial lines residential coverage, which consists of the
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Bill No. CS/HB 815 (2021)
Amendment No. 1
92 type of coverage provided by condominium association, apartment
93 building, and similar policies.
94 3. With respect to coverage for personal lines residential
95 structures:
96 a. Effective January 1, 2014, a structure that has a
97 dwelling replacement cost of $1 million or more, or a single
98 condominium unit that has a combined dwelling and contents
99 replacement cost of $1 million or more, is not eligible for
100 coverage by the corporation. Such dwellings insured by the
101 corporation on December 31, 2013, may continue to be covered by
102 the corporation until the end of the policy term. The office
103 shall approve the method used by the corporation for valuing the
104 dwelling replacement cost for the purposes of this subparagraph.
105 If a policyholder is insured by the corporation before being
106 determined to be ineligible pursuant to this subparagraph and
107 such policyholder files a lawsuit challenging the determination,
108 the policyholder may remain insured by the corporation until the
109 conclusion of the litigation.
110 b. Effective January 1, 2015, a structure that has a
111 dwelling replacement cost of $900,000 or more, or a single
112 condominium unit that has a combined dwelling and contents
113 replacement cost of $900,000 or more, is not eligible for
114 coverage by the corporation. Such dwellings insured by the
115 corporation on December 31, 2014, may continue to be covered by
116 the corporation only until the end of the policy term.
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Bill No. CS/HB 815 (2021)
Amendment No. 1
117 c. Effective January 1, 2016, a structure that has a
118 dwelling replacement cost of $800,000 or more, or a single
119 condominium unit that has a combined dwelling and contents
120 replacement cost of $800,000 or more, is not eligible for
121 coverage by the corporation. Such dwellings insured by the
122 corporation on December 31, 2015, may continue to be covered by
123 the corporation until the end of the policy term.
124 d. Effective January 1, 2017, a structure that has a
125 dwelling replacement cost of $700,000 or more, or a single
126 condominium unit that has a combined dwelling and contents
127 replacement cost of $700,000 or more, is not eligible for
128 coverage by the corporation. Such dwellings insured by the
129 corporation on December 31, 2016, may continue to be covered by
130 the corporation until the end of the policy term.
131
132 The requirements of sub-subparagraphs b.-d. do not apply in
133 counties where the office determines there is not a reasonable
134 degree of competition. In such counties a personal lines
135 residential structure that has a dwelling replacement cost of
136 less than $1 million, or a single condominium unit that has a
137 combined dwelling and contents replacement cost of less than $1
138 million, is eligible for coverage by the corporation.
139 4. It is the intent of the Legislature that policyholders,
140 applicants, and agents of the corporation receive service and
141 treatment of the highest possible level but never less than that
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Amendment No. 1
142 generally provided in the voluntary market. It is also intended
143 that the corporation be held to service standards no less than
144 those applied to insurers in the voluntary market by the office
145 with respect to responsiveness, timeliness, customer courtesy,
146 and overall dealings with policyholders, applicants, or agents
147 of the corporation.
148 5.a. Effective January 1, 2009, a personal lines
149 residential structure that is located in the "wind-borne debris
150 region," as defined in s. 1609.2, International Building Code
151 (2006), and that has an insured value on the structure of
152 $750,000 or more is not eligible for coverage by the corporation
153 unless the structure has opening protections as required under
154 the Florida Building Code for a newly constructed residential
155 structure in that area. A residential structure is deemed to
156 comply with this sub-subparagraph if it has shutters or opening
157 protections on all openings and if such opening protections
158 complied with the Florida Building Code at the time they were
159 installed.
160 b. Any major structure, as defined in s. 161.54(6)(a),
161 that is newly constructed, or rebuilt, repaired, restored, or
162 remodeled to increase the total square footage of finished area
163 by more than 25 percent, pursuant to a permit applied for after
164 July 1, 2015, is not eligible for coverage by the corporation if
165 the structure is seaward of the coastal construction control
166 line established pursuant to s. 161.053 or is within the Coastal
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Bill No. CS/HB 815 (2021)
Amendment No. 1
167 Barrier Resources System as designated by 16 U.S.C. ss. 3501-
168 3510.
169 6. With respect to wind-only coverage for commercial lines
170 residential condominiums, effective July 1, 2014, a condominium
171 may shall be deemed ineligible for coverage when if 50 percent
172 or more of the units are rented more than eight times in a
173 calendar year for a rental agreement period of less than 30
174 days.
175 Section 11. Subsection (6) is added to section 627.421,
176 Florida Statutes, to read:
177 627.421 Delivery of policy.—
178 (6) If a policy is sold in a wholly electronic manner, the
179 insurer may electronically transmit all policy documents and
180 claims communications to the insured or policyholder if the
181 insurer provides a disclosure to the insured or policyholder at
182 the time of sale.
183 Section 12. Effective upon this act becoming a law,
184 subsections (1), (2), and (4) of section 627.444, Florida
185 Statutes, are amended, and subsections (7) and (8) are added to
186 that section, to read:
187 627.444 Loss run statements for all lines of insurance.—
188 (1) As used in this section, the term:
189 (a) "Loss run statement" means a report that contains the
190 policy number, the period of coverage, the number of claims, the
191 paid losses on all claims, and the date of each loss. The term
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 815 (2021)
Amendment No. 1
192 does not include supporting claim file documentation, including,
193 but not limited to, copies of claim files, investigation
194 reports, evaluation statements, insureds' statements, and
195 documents protected by a common law or statutory privilege. As
196 applied to group health insurance, the term means a report that
197 also contains the premiums paid, the number of insureds on a
198 monthly basis, and the dependent status.
199 (b) "Provide" means to electronically send a document or
200 to allow access through an electronic portal to view or generate
201 a document.
202 (2) Notwithstanding any other law, an insurer shall
203 provide to an insured within 15 calendar days after an
204 individual or entity designated by the insurer receives receipt
205 of the insured's written request, either:
206 (a) A loss run statement; or
207 (b) For personal lines of insurance, information on how to
208 obtain a loss run statement at no charge through a consumer
209 reporting agency. However, this section does not prohibit an
210 insured from requesting a loss run statement after receiving
211 information from a consumer reporting agency, in which case the
212 insurer must then provide the loss run statement within 15
213 calendar days after the individual or entity designated by the
214 insurer receives the insured's subsequent written request.
215 (4) A loss run statement provided pursuant to this section
216 must contain a claims history with the insurer for the preceding
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 815 (2021)
Amendment No. 1
217 3 5 years or, if the claims history is less than 3 5 years, a
218 complete claims history with the insurer.
219 (7) This section does not apply to a life insurer as
220 defined in s. 624.602.
221 (8) For group health insurance, only the group
222 policyholder may request and be provided a loss run statement
223 pursuant to this section.
224 Section 13. Section 627.6647, Florida Statutes, is
225 repealed.
226
227
228 -----------------------------------------------------
229 T I T L E A M E N D M E N T
230 Remove lines 34-58 and insert:
231 amending s. 627.072, F.S.; providing a ratemaking factor for
232 workers' compensation and employer's liability insurance;
233 amending s. 627.351, F.S.; revising conditions for determining
234 the ineligibility of condominiums for wind-only coverage;
235 amending s. 627.421, F.S.; authorizing insurers to
236 electronically transmit policy documents and claims
237 communications under certain circumstances; amending s. 627.444,
238 F.S.; revising the definition of the term "loss run statement";
239 specifying the entities that must receive requests for loss run
240 statements; specifying that insurers must provide loss run
241 statements under certain circumstances; revising the required
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 815 (2021)
Amendment No. 1
242 claims history in loss run statements; providing applicability;
243 limiting loss run statement requests with respect to group
244 health insurance policies to group policyholders; repealing s.
245 627.6647, F.S., relating to the release of information required
246 for bid to group health insurance policyholders;
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CS/HB 911
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 911 Medical Treatment of Animals
SPONSOR(S): Regulatory Reform Subcommittee, Buchanan and others
TIED BILLS: IDEN./SIM. BILLS: CS/CS/SB 1370
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform Subcommittee 17 Y, 0 N, As CS Thompson Anstead
2) Commerce Committee Thompson Hamon
SUMMARY ANALYSIS
In Florida, the practice of “veterinary medicine” means the diagnosis of medical conditions of animals, and the
prescribing or administering of medicine and treatment to animals for the prevention, cure, or relief of a wound,
fracture, bodily injury, or disease. Veterinarians are regulated by the Board of Veterinary Medicine (Board) in
the Department of Business and Professional Regulation (DBPR) pursuant to ch. 474, F.S., relating to
veterinary medical practice (practice act). The purpose of the practice act is to ensure that every veterinarian
practicing in this state meets minimum requirements for safe practice to protect public health and safety.
Current law defines a “veterinarian/client/patient relationship” (VCPR) as one in which a veterinarian has
assumed responsibility for making medical judgments about the health of an animal and its need for medical
treatment. Veterinarians are permitted to prescribe drugs in the course of veterinary practice; however, the
veterinarian must be either personally acquainted with the keeping and caring of the animal and have recently
seen the animal, or have made medically appropriate and timely visits to the premises where the animal is kept
before prescribing drugs in the course of practice.
The use of electronic communications to facilitate patient health care (telemedicine) is not addressed in the
practice act and is not specifically authorized for practitioners of veterinary medicine in Florida. However,
medical doctors may practice telemedicine in Florida and establish a patient relationship with a patient
evaluation via telemedicine under certain circumstances.
The bill allows veterinarians to establish a VCPR and prescribe drugs remotely, and to remotely supervise
rabies vaccinations of impounded animals by an animal control authority. Specifically, the bill:
Allows the VCPR to be established in person, or by means of veterinary telemedicine if audio-visual
technology is used to establish such relationship.
Specifies that a physical examination is not required for the veterinarian to assume responsibility for
making medical judgments or providing treatment.
Authorizes the practice of “veterinary telemedicine” in a remote setting, including through the use of
telephone or audio-visual technology or by other means consistent with the veterinarian’s professional
judgment, as long as the veterinarian/client/patient relationship is established either in person or by
audio-visual technology.
Prohibits veterinarians from prescribing controlled substances via veterinary telemedicine, unless the
controlled substance is prescribed for inpatient treatment or hospice services.
Requires only licensed veterinarians to practice veterinary telemedicine, grants the Board jurisdiction
over the practice of veterinary telemedicine, and specifies standard of care and discipline.
Allows an animal control authority under indirect supervision of a veterinarian to administer rabies
vaccinations.
The bill is not expected to have a fiscal impact on state or local government, and may have a positive fiscal
impact on the private sector.
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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DATE: 4/18/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Practice of Veterinary Medicine
The Board of Veterinary Medicine (Board) in the Department of Business and Professional Regulation
(DBPR) implements the provisions of ch. 474, F.S., relating to veterinary medical practice (practice
act). The purpose of the practice act is to ensure that every veterinarian practicing in this state meets
minimum requirements for safe practice to protect public health and safety.1
A “veterinarian” is a health care practitioner licensed by the Board to engage in the practice of
veterinary medicine in Florida2 and subject to disciplinary action from the Board for various violations of
the practice act.3
The practice of “veterinary medicine” is the diagnosis of medical conditions of animals, and the
prescribing or administering of medicine and treatment to animals for the prevention, cure, or relief of a
wound, fracture, bodily injury, or disease, or holding oneself out as performing any of these functions.4
Veterinary medicine includes, with respect to animals:5
Surgery;
Acupuncture;
Obstetrics;
Dentistry;
Physical therapy;
Radiology;
Theriogenology (reproductive medicine);6 and
Other branches or specialties of veterinary medicine.
The practice act does not apply to the following categories of persons:
Veterinary aides, nurses, laboratory technicians, preceptors,7 or other employees of a licensed
veterinarian, who administer medication or provide help or support under the responsible
supervision8 of a licensed veterinarian;
Certain non-Florida licensed veterinarians who are consulting upon request of a Florida-licensed
veterinarian on the treatment of a specific animal or on the treatment on a specific case of the
animals of a single owner.
Faculty veterinarians when they have assigned teaching duties at accredited9 institutions;
Certain graduated intern/resident veterinarians of accredited institutions;
1
S. 474.201, F.S.
2
S. 474.202(11), F.S.
3
Ss. 474.213 & 474.214, F.S.
4
See s. 474.202(9), F.S. Also included is the determination of the health, fitness, or soundness of an animal, and the performance of
any manual procedure for the diagnosis or treatment of pregnancy or fertility or infertility of animals.
5
See s. 474.202(13), F.S. Section 474.202(1), F.S., defines “animal” as “any mammal other than a human being or any bird,
amphibian, fish, or reptile, wild or domestic, living or dead.”
6
The Society for Theriogenology, established in 1954, is composed of veterinarians dedicated to standards of excellence in animal
reproduction. See https://www.therio.org/page/HistoryTheriogenolog (last visited Feb. 26, 2021).
7
A preceptor is a skilled practitioner or faculty member who directs, teaches, supervises, and evaluates students in a clinical setting to
allow practical experience with patients. See also https://www.merriam-webster.com/dictionary/preceptor#medicalDictionary (last
visited Feb. 26, 2021).
8
The term “responsible supervision” is defined in s. 474.202(10), F.S., as the “control, direction, and regulation by a licensed doctor
of veterinary medicine of the duties involving veterinary services” delegated to unlicensed personnel.
9
Ss. 474.203(1) and (2), F.S., provide that accreditation of a school or college must be granted by the American Veterinary Medical
Association (AVMA) Council on Education, or the AVMA Commission for Foreign Veterinary Graduates.
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Certain students in a school or college of veterinary medicine who perform assigned duties by
an instructor or work as preceptors;
Certain doctors of veterinary medicine employed by a state agency or the United States
Government;
Persons or their employees caring for the persons’ own animals, as well as certain part-time or
temporary employees, or independent contractors, who are hired by an owner to help with herd
management and animal husbandry tasks; and
Certain entities or persons10 that conduct experiments and scientific research on animals as part
of the development of pharmaceuticals, biologicals, serums, or treatment methods of treatment
or techniques to diagnose or treatment of human ailments, or in the study and development of
methods and techniques applicable to the practice of veterinary medicine.11
Any permanent or mobile establishment where a licensed veterinarian practices must have a premises
permit issued by DBPR.12 Each person to whom a veterinary license or premises permit is issued must
conspicuously display such document in her or his office, place of business, or place of employment in
a permanent or mobile veterinary establishment or clinic.13
By virtue of accepting a license to practice veterinary medicine in Florida, a veterinarian consents to
render handwriting samples and waive confidentiality pertaining to and authorize certain mental and
physical examinations, related to certain investigations or complaints.14
For Fiscal Year 2019-2020, there were 11,433 actively licensed veterinarians in Florida, and DBPR
received 362 complaints and took 34 disciplinary actions.15
Veterinarian/Client/Patient Relationship
The practice act defines a “patient” as any animal for which the veterinarian practices veterinary
medicine.16
The practice act defines a “veterinarian/client/patient relationship” (VCPR) as one in which a
veterinarian has assumed responsibility for making medical judgments about the health of an animal
and its need for medical treatment.17
Veterinarians are permitted to prescribe drugs in the course of veterinary practice, but may be
disciplined by the Board for certain related violations, including ordering, prescribing, or making
available medicinal drugs or drugs18 or controlled substances19 for use other than for the specific
treatment of animal patients for which there is a documented veterinarian/client/patient relationship and
without:
Having sufficient knowledge of the animal to initiate at least a general or preliminary diagnosis
of the medical condition of the animal, which means that the veterinarian is personally
acquainted with the keeping and caring of the animal and has recently seen the animal or has
made medically appropriate and timely visits to the premises where the animal is kept;
Being available to provide for follow-up care and treatment in case of adverse reactions or
failure of the regimen of therapy; and
10
See s. 474.203(6), F.S., which states that the exemption applies to “[s]tate agencies, accredited schools, institutions, foundations,
business corporations or associations, physicians licensed to practice medicine and surgery in all its branches, graduate doctors of
veterinary medicine, or persons under the direct supervision thereof . . . .”
11
See s. 474.203, F.S.
12
S. 474.215(1), F.S.
13
S. 474.216, F.S.
14
S. 474.2185, F.S.
15
Department of Business and Professional Regulation, Division of Professions Annual Report Fiscal Year 2019-2020,
http://www.myfloridalicense.com/DBPR/os/documents/DivisionAnnualReport_FY1920.pdf (last visited Feb. 26, 2021).
16
S. 474.202(8), F.S.
17
S. 474.202(12), F.S.
18
As defined in s. 465.003(8), F.S.
19
As defined in s. 893.02(4), F.S.
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Maintaining records which document patient visits, diagnosis, treatment, and other relevant
information required under the practice act.20
Veterinary Telemedicine
The use of electronic communications to facilitate patient health care (telemedicine) is not addressed in
the practice act and is not specifically authorized for practitioners of veterinary medicine in Florida.21
Veterinary Telemedicine During the Pandemic
On March 24, 2020, the U.S. Food and Drug Administration (FDA) announced that it would temporarily
suspend enforcement of certain prescription limitations in order to allow veterinarians to better utilize
telemedicine to address animal health needs during the COVID-19 pandemic. Specifically, the FDA has
provided guidance related to suspending the enforcement of the animal examination and premises visit
VCPR requirements relevant to FDA regulations governing Extralabel Drug Use in Animals22 and
Veterinary Feed Directive Drugs.23 This allows veterinarians to prescribe or authorize the use of
drugs without direct examination or making visits to patients, which will limit human-to-human
interaction and potential spread of COVID-19 in the community.24
According to the FDA, veterinarians are licensed by their state veterinary licensing board and must
meet the requirements of the licensing board to practice in that state. FDA regulates the devices and
drugs that veterinarians use, and the conditions under which veterinarians may prescribe drugs for
extra-label uses. When an approved drug is used in a manner other than what is stated on the label, it
is an extra-label use. This is commonly called an “off-label” use because the drug is used in a way that
is “off the label.”25
On March 27, 2020, DBPR issued emergency order EO 2020-04, which suspends any restriction of ch.
474, F.S., or ch. 61G-18, F.A.C., which would prohibit an active Florida-licensed veterinarian from
practicing telemedicine on a patient. The order specifies that attending veterinarians must be
comfortable assessing the patient remotely and feel able to exercise good clinical judgment to assist
the patient. The emergency order will expire with the expiration of Executive Order 20-52, including any
extension thereof.26
Telemedicine in Other States
The use of telemedicine by veterinarians varies by state. Some states allow telemedicine to be used at
the veterinarian’s discretion, others allow it after the establishment of a VCPR, some do not allow it at
all, and others limit telemedicine for purposes of prescribing medication or controlled substances.
In 2017, Virginia passed a law that generally allows telemedicine for veterinarians. In addition, it allows
a veterinarian who performs or has performed an appropriate examination of a patient to prescribe
certain controlled substances to a patient via the practice of telemedicine. The Virginia Board of
Veterinary Medicine provides guidance for telehealth in the practice of veterinary medicine, which
indicates that:
20
S. 474.214(1)(y)., F.S.
21
R. 64B8-9.0141, F.A.C. Currently, medical doctors may practice telemedicine in Florida in a patient relationship with a patient
evaluation, under certain circumstances.
22
21 C.F.R. part 530.
23
21 C.F.R. § 558.6.
24
U.S. Food and Drug Administration, Coronavirus (COVID-19) Update: FDA Helps Facilitate Veterinary Telemedicine During
Pandemic, https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-fda-helps-facilitate-veterinary-
telemedicine-during-pandemic (last visited Feb. 26, 2021).
25
.S. Food and Drug Administration, What FDA Does and Does Not Regulate, https://www.fda.gov/animal-veterinary/animal-health-
literacy/what-fda-does-and-does-not-regulate#top (last visited Mar. 3, 2021).
26
Department of Business and Professional Regulation, Emergency Order EO 2020-04, Mar. 27, 2020,
http://www.myfloridalicense.com/dbpr/os/documents/EO_2020-04.pdf (last visited Feb. 26, 2021).
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“Using telehealth technologies in veterinary practice is considered a method of service
delivery. The current, applicable regulations apply to all methods of service delivery,
including telehealth. The licensee is responsible for using professional judgment to
determine if the type of service can be delivered via telehealth at the same standard of care
as in-person service.”27
The Idaho Board of Veterinary Medicine provides the following guidance on telehealth:
“The veterinarian must employ sound profession judgment to determine whether using
Telehealth is appropriate in particular circumstances each and every time animal care is
provided and only provide medical advice or treatment via Telehealth to the extent that it is
possible without a hands on examination. A veterinarian using Telehealth must take
appropriate steps to obtain Informed Consent, establish the VCPR and conduct all
appropriate evaluations and history of the patient consistent with traditional standards of
care for the particular patient presentation. As such, some situations and patient
presentations are appropriate for the utilization of Telehealth as a component of, or in lieu
of, hands on medical care, while others are not.”28
The state of Oklahoma only allows a veterinarian to prescribe drugs via telemedicine under the
following conditions:
“The veterinarian accepts that he or she cannot prescribe drugs when practicing via
telehealth alone, unless the veterinarian has sufficient knowledge of the animal or group of
animals by virtue of a history and inquiry, and either physical examination or medically
appropriate and timely visits to the premises where the animal or group of animals is
kept.”29
The state of Washington only allows telemedicine after a VCPR has been established:
“The veterinarian shall not establish a veterinary-client-patient relationship solely by
telephonic or other electronic means. However, once established, a veterinary-client-patient
relationship may be maintained between medically necessary examinations via telephone
or other types of consultations.”30
Florida Telehealth for Medical Doctors
In 2019, the Legislature passed and the Governor approved CS/CS/HB 23, which created s. 456.47,
F.S. The bill became effective on July 1, 2019.31 It authorized Florida-licensed health care providers32
to use “telehealth” to deliver health care services within their respective scopes of practice.33 The bill
also authorized out-of-state health care providers to use telehealth to deliver health care services to
Florida patients if they register with the Department of Health (DOH) or the applicable board34 and meet
27
Virginia Board of Veterinary Medicine Guidance for Telehealth in the Practice of Veterinary Medicine, Guidance Document: 150-
25, https://www.dhp.virginia.gov/media/dhpweb/docs/vet/guidance/150-25.pdf (last visited Mar. 3, 2021).
28
Idaho Board of Veterinary Medicine, Policy Number 2018-2 Telemedicine,
https://elitepublic.bovm.idaho.gov/IBVMPortal/IBVM/BoardPolicies/Policy%20Statement-2018-2%20Telemedicine.pdf (last visited
Mar. 3, 2021).
29
Oklahoma State Board of Veterinary Medical Examiners, Board Telemedicine/Telehealth Position Statement,
https://www.okvetboard.com/veterinarian-faq/95-board-telemedicine-telehealth-position-statement (last visited Mar. 3, 2021).
30
Wash. Rev. Code
31
Chapter 2019-137, s. 6, Laws of Fla.
32
S. 456.47(1)(b), F.S.
33
See also s. 394.453(3), F.S. The Florida Mental Health Act (popularly known as “The Baker Act,” s. 394.451, F.S.), contains a
legislative finding that “the use of telemedicine for patient evaluation, case management, and ongoing care will improve management
of patient care and reduce costs of transportation.”
34
Under s. 456.001(1), F.S., the term “board” is defined as any board, commission, or other statutorily created entity, to the extent
such entity is authorized to exercise regulatory or rulemaking functions within the DOH or, in some cases, within the DOH’s Division
of Medical Quality Assurance.
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certain eligibility requirements.35 A registered out-of-state telehealth provider may use telehealth, within
the relevant scope of practice established by Florida law and rule, to provide health care services to
Florida patients but is prohibited from opening an office in Florida and from providing in-person health
care services to patients located in Florida.
On March 16, 2020, Surgeon General Scott Rivkees executed DOH Emergency Order 20-002
authorizing certain out-of-state physicians, osteopathic physicians, physician assistants, and advanced
practice registered nurses to provide telehealth in Florida without the need to register as a telehealth
provider under s. 456.47(4), F.S.36 This emergency order was extended37 and will remain in effect until
the expiration of the Governor’s Executive Order No. 20-52 and extensions thereof.38
Five days later, the Surgeon General executed DOH Emergency Order 20-00339 to also authorize
certain out-of-state clinical social workers, marriage and family therapists, mental health counselors,
and psychologists to provide telehealth in Florida without the need to register as a telehealth provider
under s. 456.47(4), F.S. This emergency order was also extended40 and will remain in effect until the
expiration of Executive Order No. 20-52 and extensions thereof.
Controlled Substances
Chapter 893, F.S., sets forth the Florida Comprehensive Drug Abuse Prevention and Control Act. This
chapter classifies controlled substances into five schedules in order to regulate the manufacture,
distribution, preparation, and dispensing of the substances. The scheduling of substances in Florida
law is generally consistent with the federal scheduling of substances under 21 U.S.C. s. 812:
A Schedule I substance has a high potential for abuse and no currently accepted medical use in
treatment in the United States and its use under medical supervision does not meet accepted
safety standards. Examples include heroin and lysergic acid diethylamide (LSD).
A Schedule II substance has a high potential for abuse, a currently accepted but severely
restricted medical use in treatment in the United States, and abuse may lead to severe
psychological or physical dependence. Examples include cocaine and morphine.
A Schedule III substance has a potential for abuse less than the substances contained in
Schedules I and II, a currently accepted medical use in treatment in the United States, and
abuse may lead to moderate or low physical dependence or high psychological dependence or,
in the case of anabolic steroids, may lead to physical damage. Examples include lysergic acid;
ketamine; and some anabolic steroids.
A Schedule IV substance has a low potential for abuse relative to the substances in
Schedule III, a currently accepted medical use in treatment in the United States, and abuse may
lead to limited physical or psychological dependence relative to the substances in Schedule III.
Examples include alprazolam, diazepam, and phenobarbital.
A Schedule V substance has a low potential for abuse relative to the substances in
Schedule IV, a currently accepted medical use in treatment in the United States, and abuse
may lead to limited physical or psychological dependence relative to the substances in
Schedule IV. Examples include low dosage levels of codeine, certain stimulants, and certain
narcotic compounds.
35
Section 456.47(4), F.S.
36
Department of Health, State of Florida, Emergency Order DOH No. 20-002 (Mar. 16, 2020) http://floridahealthcovid19.gov/wp-
content/uploads/2020/03/filed-eo-doh-no.-20-002-medical-professionals-03.16.2020.pdf (last visited Feb. 26, 2021).
37
Department of Health, State of Florida, Emergency Order DOH No. 20-011 (June 30, 2020) https://floridahealthcovid19.gov/wp-
content/uploads/2020/06/DOH-Emergency-Order-DOH-No.-20-011.pdf (last visited Feb. 26, 2021).
38
Under s. 252.36(2), F.S., no state of emergency declared pursuant to the Florida Emergency Management Act, may continue for
more than 60 days unless renewed by the Governor. The state of emergency declared in Executive Order 20-52, was extended by
Executive Orders 20-114, 20- 166, 20-192, 20-213, 20-276, and 20-316. Executive Order 20-316 will remain in effect until Feb. 27,
2020. Office of the Governor, State of Florida, Executive Order 20-316 (Dec. 29, 2020) https://www.flgov.com/wp-
content/uploads/orders/2020/EO_20-316.pdf (last visited Feb. 26, 2021).
39
Department of Health, State of Florida, Emergency Order DOH No. 20-003 (Mar. 21, 2020) https://s33330.pcdn.co/wp-
content/uploads/2020/03/DOH-EO-20-003-3.21.2020.pdf (last visited Feb. 14, 2021).
40
Department of Health, State of Florida, Emergency Order DOH No. 20-005 (Apr. 21, 2020) https://s33330.pcdn.co/wp-
content/uploads/2020/04/DOH-Emergency-Order-20-005-extending-20-003.pdf (last visited Feb. 14, 2021).
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Prescription Drug Law for Medical Doctors
Section 456.44, F.S., limits the authorization to prescribe only a three-day supply of a Schedule II
opioid41 or up to a seven-day supply if medically necessary. The prescribing limits on Schedule II
opioids do not apply to prescriptions for acute pains related to: cancer, a terminal condition, pain
treated with palliative care, or a traumatic injury with an Injury Severity Score of 9 or higher.42 A
prescriber and dispenser must also report to and review the Prescription Drug Monitoring Program
database to review a patient’s controlled substance dispensing history prior to prescribing or dispensing
a Schedule II-IV controlled substance for patients 16 years older.43 These limitations and requirements
apply to practitioners providing services in-person and through telehealth.
Section 456.47(2)(c), F.S., prohibits telehealth providers from prescribing any controlled substance
unless the controlled substance is prescribed for:
The treatment of a psychiatric disorder;
Inpatient treatment at a licensed hospital;
The treatment of a patient receiving hospice services; or
The treatment of a resident of a nursing home facility.
According to a study published by the University of Florida College of Pharmacy,44 the “2018 Florida
law restricting opioid prescriptions for acute pain has led to a drop in opioid use.” Specifically, the study
“found the number of new opioid users per month dropped 16 percent immediately after the law was
implemented, and the number of new users continues to decrease each month. Additionally, the
average days’ supply fell from 5.4 days prior to the law to three days. The law was also associated with
an immediate decrease in the use of hydrocodone, the most commonly used Schedule II opioid.”45
Prescription Drug Law for Veterinarians
In order to purchase, prescribe, administer or dispense controlled substances in Florida, veterinarians
must obtain a license from the U.S. Drug Enforcement Agency (DEA). Florida does not require any
additional licensure for veterinarians to purchase and prescribe controlled drugs.46
The DEA is a division within the U.S. Department of Justice and reports to the U.S. Attorney General.
In consultation with the Secretary of Health and Human Services and others, the Attorney General
oversees the listing of substances on five schedules (Classes I, II, III, IV or V) of controlled agents as
described in Title 21 United States Code (USC) of the Controlled Substances Act. The central mission
of the DEA is to enforce controlled substances laws and regulations.
With respect to veterinarians and other health professionals, the major focus of the DEA is to prevent
illegal diversion of controlled prescription drugs for the purpose of illicit or non-medical uses. In order to
legally purchase, dispense or prescribe controlled prescription drugs, a veterinarian must be licensed
by the DEA. Prescription drugs that are regulated or controlled by the DEA include many important
drugs that are used routinely by veterinarians. DEA-controlled drugs are tightly controlled at all aspects
of manufacturing, distribution, ordering, storage, use and disposition.47
41
All opioids are controlled substances. Opioids range in classification between Schedule I and Schedule V.
42
S. 456.44(1)(a), F.S.
43
S. 893.055, F.S.
44
Juan M. Hincapie-Castillo, Changes in Opioid Use After Florida’s Restriction Law for Acute Pain Prescriptions (Feb. 28, 2020),
https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2762015?utm_source=For_The_Media&utm_medium=referral&utm_c
ampaign=ftm_links&utm_term=022820 (last visited Feb. 27, 2021).
45
Matthew Splett, UF College of Pharmacy, Department of Pharmaceutical Outcomes and Policy (Feb. 27, 2020),
https://ufhealth.org/news/2020/new-florida-law-leads-decline-opioid-use-according-uf-study (last visited Feb. 27, 2021).
46
Thomas Vickory, PhD, DEA REGULATION OF CONTROLLED DRUGS, https://www.vetfolio.com/learn/article/florida-drug-
laws-update-2013 (last visited Feb. 27, 2021).
47
Thomas, supra note 46.
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While veterinarians are allowed to write prescriptions for controlled drugs, they cannot order controlled
drugs from their local pharmacy for “in-house” use nor for secondary re-sale. Like any other
prescription, controlled drug prescriptions must be written for a specific patient and cannot be for
general use. As a licensed DEA registrant, veterinarians are expected to create and maintain a system
that provides strong safeguards against theft or diversion of controlled drugs in their practice.48
Two opioids are approved and marketed for use in animals, butorphanol and buprenorphine. Due to the
limited number of approved and marketed veterinary opioids, veterinarians who need to use opioids to
control pain in their patients generally use products approved for use in people.49
Federal Controlled Substance Law50
The Ryan Haight Online Pharmacy Consumer Protection Act of 200851 amended the federal Controlled
Substances Act, to prohibit a practitioner from issuing a “valid prescription” for a controlled substance
through the Internet without having first conducted at least one in-person medical evaluation, except in
certain circumstances. Thereafter, the prescriber may prescribe controlled substances to that patient
via Internet or a phone call. The Act offers seven exceptions to the in-person exam. One such
exception occurs when the Secretary of the federal Department of Health and Human Services (HHS)
has declared a public health emergency.
Florida DOH Emergency Order No. 20-002
The HHS Secretary authorized qualified prescribers to prescribe Schedule II-V controlled substances,
and Surgeon General Rivkees issued DOH Emergency Order No. 20-00252, which suspended s.
456.47(2)(c), F.S., and authorized specified Florida-licensed prescribers53 to issue a renewal
prescription for a Schedule II-IV controlled substance only for an existing patient for the purpose of
treating chronic nonmalignant pain without conducting another physical examination of the patient. This
emergency order was extended54 and will remain in effect until the expiration of Executive Order No.
20-52 and extensions thereof.55
Federal Prescription Guidance During the COVID-19 Public Health Emergency
On January 31, 2020, the Secretary of HHS issued a public health emergency.56 On March 16, 2020,
the DEA published a COVID-19 Information page on the Diversion Control Division website, authorizing
DEA-registered practitioners to issue prescriptions for all Schedule II-V controlled substances to
patients without first conducting an in-person medical evaluation, provided all of the following conditions
are met:
The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual
course of his/her professional practice.
48
Thomas, supra note 46.
49
U.S. FDA, The Opioid Epidemic: What Veterinarians Need to Know, https://www.fda.gov/animal-veterinary/resources-you/opioid-
epidemic-what-veterinarians-need-know (last visited Feb. 27, 2021).
50
21 U.S.C. s. 829.
51
Public Law No. 110-435 (2008).
52
Department of Health, State of Florida, Emergency Order DOH No. 20-002 (Mar. 16, 2020) http://floridahealthcovid19.gov/wp-
content/uploads/2020/03/filed-eo-doh-no.-20-002-medical-professionals-03.16.2020.pdf (last visited Feb. 14, 2021).
53
Physicians, osteopathic physicians, physician assistants, or advanced practice registered nurses that have designated themselves as a
controlled substance prescribing practitioner on their practitioner profiles pursuant to s. 456.44, F.S.
54
Department of Health, State of Florida, Emergency Order DOH No. 20-011 (June 30, 2020) https://floridahealthcovid19.gov/wp-
content/uploads/2020/06/DOH-Emergency-Order-DOH-No.-20-011.pdf (last visited Feb. 14, 2021).
55
Under s. 252.36(2), F.S., no state of emergency declared pursuant to the Florida Emergency Management Act, may continue for
more than 60 days unless renewed by the Governor. The state of emergency declared in Executive Order 20-52, was extended by
Executive Orders 20-114, 20- 166, 20-192, 20-213, 20-276, and 20-316. Executive Order 20-316 will remain in effect until Feb. 27,
2020. Office of the Governor, State of Florida, Executive Order 20-316 (Dec. 29, 2020) https://www.flgov.com/wp-
content/uploads/orders/2020/EO_20-316.pdf (last visited Feb. 9, 2021).
56
Determination that a Public Health Emergency Exists, Alex M. Azar II, Secretary of U.S. Department of Health and Human
Services (January 31, 2020) available at https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx (last visited
Feb. 9, 2021).
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The evaluation is conducted using an audio-visual, real-time, two-way interactive
communication system.
The practitioner is acting in accordance with applicable federal and state law.57
Rabies Vaccinations
All dogs, cats, and ferrets four months of age or older must be vaccinated by a licensed veterinarian
against rabies with a vaccine that is licensed by the U.S. Department of Agriculture (USDA) for use in
those species. The owner must have the animal revaccinated 12 months after the initial vaccination,
and subsequent vaccinations must conform to the vaccine manufacturer’s directions. The cost of
vaccination must be borne by the animal’s owner. Violations of this requirement are a civil infraction,
punishable as provided in s. 828.27(2), F.S.58
Currently, Florida law does not appear to allow anyone other than the veterinarian to administer the
rabies vaccine. The law allows certain vaccines, anesthesia and tranquilization to be administered by a
veterinary aide, nurse, laboratory technician, intern, or other employee of a licensed veterinarian while
under the “immediate supervision” of a licensed veterinarian.59 In addition, the following tasks may be
performed without the licensed veterinarian on the premises:
The administration of medication and treatment, excluding vaccinations, as directed by the
licensed veterinarian; and
The obtaining of samples and the performance of those diagnostic tests, including radiographs,
directed by the licensed veterinarian.60
The Board has recognized that the following diseases are communicable to humans and are of public
health significance, and as a result, only a veterinarian is authorized to immunize or treat an animal
for these diseases. The diseases include:
Brucellosis.
Tuberculosis.
Rabies.
Equine Encephalomyelitis.61
Effect of the Bill
The bill allows licensed veterinarians to establish a VCPR remotely and practice veterinary
telemedicine as follows:
Related to the VCPR:
Allows the VCPR to be established in person, or by means of veterinary telemedicine if audio-
visual technology is used to establish such relationship.
Specifies that a physical examination is not required for the veterinarian to assume
responsibility for making medical judgments or providing treatment.
Related to Veterinary Telemedicine:
Defines “veterinary telemedicine” to mean the practice of veterinary medicine in a remote
setting, including through the use of telephone or audio-visual technology or by other means
consistent with the veterinarian’s professional judgment, as long as the
57
Diversion Control Division, U.S. Department of Justice Drug Enforcement Administration, COVID-19 Information Page, available
at https://www.deadiversion.usdoj.gov/coronavirus.html (last visited Feb. 9, 2021). Letter from Thomas Prevoznik, Deputy Assistant
Administrator, Diversion Control Division, U.S. Department of Justice Drug Enforcement Administration, to DEA Qualifying
Practitioners and Other Practitioners, (Mar. 31, 2020) available at https://www.deadiversion.usdoj.gov/GDP/(DEA-DC-
022)(DEA068)%20DEA%20SAMHSA%20buprenorphine%20telemedicine%20%20(Final)%20+Esign.pdf (last visited Feb. 9, 2021).
58
S. 828.30(1), F.S.
59
S. 474.202(5), F.S., defines “immediate supervision” or words of similar purport to mean a licensed doctor of veterinary medicine is
on the premises whenever veterinary services are being provided.
60
R. 61G18-17.005, F.A.C.
61
R. 61G18-17.006, F.A.C.
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veterinarian/client/patient relationship is established either in person or by audio-visual
technology.
Prohibits veterinarians from prescribing controlled substances if the veterinarian/client/patient
relationship has been established remotely and the veterinarian has not previously performed a
physical examination, unless the controlled substance is prescribed for the following:
o Inpatient treatment at an animal clinic or hospital; or
o The treatment of a patient receiving hospice services.
Requires veterinarians to hold a current license to practice veterinary medicine in Florida in
order to practice veterinary telemedicine in Florida.
Grants the Board jurisdiction over a veterinarian practicing veterinary telemedicine in Florida,
regardless of where the veterinarian’s physical offices are located.
Specifies that the practice of veterinary telemedicine is not a violation of the standard of care,
and a veterinarian may not be disciplined solely for practicing veterinary telemedicine.
Removes the requirement that a veterinarian be personally acquainted and have made timely
visits with the animal in order to prescribe certain drugs in certain situations.
Related to Rabies Vaccinations:
Allows an employee, agent, or contractor of an animal control authority acting under the indirect
supervision of a veterinarian to administer rabies vaccinations to impounded animals that will be
transferred, rescued, fostered, adopted, or reclaimed by the owner.
Defines "indirect supervision," to mean the supervising veterinarian is available for consultation
by telecommunications but is not required to be on the premises during such consultation.
o The supervising veterinarian assumes responsibility for the veterinary care given to the
animal by any person working under or at his or her direction and supervision.
Authorizes veterinarians who supervise an employee, agent, or contractor of an animal control
authority administering the rabies vaccination to an animal to affix his or her signature stamp in
lieu of an actual signature.
B. SECTION DIRECTORY:
Section 1: Amends s. 474.202, F.S., revising the definition of "veterinarian/client/patient
relationship."
Section 2: Creates s. 474.2021, F.S., authorizing veterinarians to practice veterinary telemedicine,
prohibiting veterinarians from prescribing controlled substances if VCPR is established
remotely, providing exceptions, granting the Board jurisdiction, specifying standard of
care and discipline.
Section 3: Amends s. 474.203, F.S., conforming a cross reference.
Section 4: Amends s. 474.214, F.S., relating to disciplinary proceedings.
Section 5: Amends s. 828.30, F.S., relating to rabies vaccination of dogs, cats, and ferrets.
Section 6: Provides an effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
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B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
Indeterminate. Animal control authorities will be able to administer rabies vaccinations of
impounded animals without a veterinarian having to be physically present. This may create a
savings for local animal control authorities to the extent they are incurring extra veterinary costs
associated with veterinarians giving rabies vaccinations.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Licensed veterinarians will be permitted to establish a VCPR remotely, and practice veterinary
telemedicine, thus giving them more flexibility in their practice. This allows veterinarians to use their
professional judgement and determine when an animal needs to be physically seen, and will place
them on equal footing with licensed health care providers in the state who are already allowed to
practice telehealth.
Animal owners may have greater access to veterinarians and may feel more comfortable, especially
during a state of emergency. Visitors and tourists with pets may be able to obtain veterinarian care
while on vacation in Florida without the need for locating and conveying their animal to a veterinarian’s
office.
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:
The bill does not appear to create a need for rulemaking or rulemaking authority.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On March 2, 2021, the Regulatory Reform Subcommittee adopted one amendment and reported the bill
favorably as a committee substitute. The committee substitute:
Defines “veterinary telemedicine” as “the practice of veterinary medicine in a remote setting,
including through the use of telephone or audio-visual technology or by other means consistent with
the veterinarian’s professional judgment.”
Authorizes veterinarians to establish a veterinarian/client/patient relationship in person, or by means
of veterinary telemedicine.
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Specifies that a physical examination is not required for the veterinarian to assume responsibility for
making medical decisions or providing treatment.
Prohibits veterinarians from prescribing controlled substances if the veterinarian/client/patient
relationship has been established remotely and a physical examination has not previously occurred,
unless the controlled substance is prescribed for the following:
o Inpatient treatment at an animal clinic or hospital; or
o The treatment of a patient receiving hospice services.
Requires veterinarians to hold a current license to practice veterinary medicine in the State of
Florida in order to practice veterinary telemedicine in Florida.
Grants the Florida Board of Veterinary Medicine jurisdiction over a veterinarian practicing veterinary
telemedicine in Florida, regardless of where the veterinarian’s physical offices are located.
Specifies that the practice of veterinary telemedicine is not a violation of the standard of care, and a
veterinarian may not be disciplined solely for practicing veterinary telemedicine.
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 911 2021
1 A bill to be entitled
2 An act relating to the medical treatment of animals;
3 amending s. 474.202, F.S.; revising and providing
4 definitions; creating s. 474.2021, F.S.; authorizing
5 veterinarians to establish veterinarian/client/patient
6 relationship remotely; prohibiting veterinarians from
7 prescribing controlled substances; providing
8 exceptions; providing licensure requirements to
9 practice veterinary telemedicine; providing
10 jurisdiction of the Florida Board of Veterinary
11 Medicine; providing construction; amending s. 474.203,
12 F.S.; providing an exception to who may immunize or
13 treat an animal for certain diseases; amending s.
14 474.214, F.S.; revising grounds for disciplinary
15 action against a veterinarian; amending s. 828.30,
16 F.S.; authorizing employees, agents, or contractors of
17 animal control authorities to administer rabies
18 vaccinations under certain circumstances; providing
19 that a supervising veterinarian assumes responsibility
20 for any person working at his or her discretion or
21 under his or her supervision; defining the term
22 "indirect supervision"; providing requirements;
23 authorizing a veterinarian who indirectly supervises
24 the administration of the rabies vaccination to affix
25 his or her signature stamp on a rabies vaccination
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26 certificate; providing an effective date.
27
28 Be It Enacted by the Legislature of the State of Florida:
29
30 Section 1. Subsection (12) of section 474.202, Florida
31 Statutes, is amended, and subsection (14) is added to that
32 section, to read:
33 474.202 Definitions.—As used in this chapter:
34 (12) "Veterinarian/client/patient relationship" means a
35 relationship where the veterinarian has assumed the
36 responsibility for making medical judgments regarding the health
37 of the animal and its need for medical treatment. Such
38 relationship may be established in person, or by means of
39 veterinary telemedicine if audio-visual technology is used to
40 establish such relationship. A physical examination is not
41 required for the veterinarian to assume responsibility for
42 making medical judgments or providing treatment.
43 (14) "Veterinary telemedicine" means the practice of
44 veterinary medicine in a remote setting, including through the
45 use of telephone or audio-visual technology or by other means
46 consistent with the veterinarian's professional judgment, as
47 long as the veterinarian/client/patient relationship is
48 established either in person or by audio-visual technology.
49 Section 2. Section 474.2021, Florida Statutes, is created
50 to read:
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51 474.2021 Veterinary Telemedicine.—
52 (1) A veterinarian may practice veterinary telemedicine.
53 (2) A veterinarian may not prescribe controlled substances
54 if the veterinarian/client/patient relationship has been
55 established remotely under this section and the veterinarian has
56 not previously performed a physical examination, unless the
57 controlled substance is prescribed for the following:
58 (a) Inpatient treatment at an animal clinic or hospital;
59 or
60 (b) The treatment of a patient receiving hospice services.
61 (3) A veterinarian must hold a current license to practice
62 veterinary medicine in this state in order to practice
63 veterinary telemedicine.
64 (4) The board has jurisdiction over a veterinarian
65 practicing veterinary telemedicine in this state, regardless of
66 where the veterinarian's physical offices are located. The
67 practice of veterinary telemedicine in accordance with this
68 section is not a standard of care violation, and a veterinarian
69 may not be disciplined solely for practicing veterinary
70 telemedicine.
71 Section 3. Paragraph (a) of subsection (5) of section
72 474.203, Florida Statutes, is amended to read:
73 474.203 Exemptions.—This chapter does not apply to:
74 (5)(a) Any person, or the person's regular employee,
75 administering to the ills or injuries of her or his own animals,
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76 including, but not limited to, castration, spaying, and
77 dehorning of herd animals, unless title is transferred or
78 employment provided for the purpose of circumventing this law.
79 This exemption does not apply to any person licensed as a
80 veterinarian in another state or foreign jurisdiction and
81 practicing temporarily in this state. However, except as
82 provided in s. 828.30, only a veterinarian may immunize or treat
83 an animal for diseases that are communicable to humans and that
84 are of public health significance.
85
86 For the purposes of chapters 465 and 893, persons exempt
87 pursuant to subsection (1), subsection (2), or subsection (4)
88 are deemed to be duly licensed practitioners authorized by the
89 laws of this state to prescribe drugs or medicinal supplies.
90 Section 4. Paragraph (y) of subsection (1) of section
91 474.214, Florida Statutes, is amended to read:
92 474.214 Disciplinary proceedings.—
93 (1) The following acts shall constitute grounds for which
94 the disciplinary actions in subsection (2) may be taken:
95 (y) Using the privilege of ordering, prescribing, or
96 making available medicinal drugs or drugs as defined in chapter
97 465, or controlled substances as defined in chapter 893, for use
98 other than for the specific treatment of animal patients for
99 which there is a documented veterinarian/client/patient
100 relationship. Pursuant thereto, The veterinarian shall:
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101 1. Have sufficient knowledge of the animal to initiate at
102 least a general or preliminary diagnosis of the medical
103 condition of the animal, which means that the veterinarian is
104 personally acquainted with the keeping and caring of the animal
105 and has recently seen the animal or has made medically
106 appropriate and timely visits to the premises where the animal
107 is kept.
108 2. Be available or provide for followup care and treatment
109 in case of adverse reactions or failure of the regimen of
110 therapy.
111 3. Maintain records which document patient visits,
112 diagnosis, treatment, and other relevant information required
113 under this chapter.
114 Section 5. Subsections (1) and (3) of section 828.30,
115 Florida Statutes, are amended to read:
116 828.30 Rabies vaccination of dogs, cats, and ferrets.—
117 (1)(a) Except as provided in paragraph (b), all dogs,
118 cats, and ferrets 4 months of age or older must be vaccinated by
119 a licensed veterinarian against rabies with a vaccine that is
120 licensed by the United States Department of Agriculture for use
121 in those species.
122 (b) An employee, agent, or contractor of an animal control
123 authority acting under the indirect supervision of a
124 veterinarian may vaccinate impounded animals that will be
125 transferred, rescued, fostered, adopted, or reclaimed by the
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126 owner. As used in this subsection, the term "indirect
127 supervision," means that the supervising veterinarian is
128 available for consultation by telecommunications but is not
129 required to be on the premises during such consultation. The
130 supervising veterinarian assumes responsibility for the
131 veterinary care given to the animal by any person working under
132 or at his or her direction and supervision.
133 (c) The owner of every dog, cat, and ferret shall have the
134 animal revaccinated 12 months after the initial vaccination.
135 Thereafter, the interval between vaccinations shall conform to
136 the vaccine manufacturer's directions. The cost of vaccination
137 must be borne by the animal's owner. Evidence of circulating
138 rabies virus neutralizing antibodies may shall not be used as a
139 substitute for current vaccination in managing rabies exposure
140 or determining the need for booster vaccinations.
141 (3) Upon vaccination against rabies, the licensed
142 veterinarian shall provide the animal's owner and the animal
143 control authority with a rabies vaccination certificate. Each
144 animal control authority and veterinarian shall use the "Rabies
145 Vaccination Certificate" of the National Association of State
146 Public Health Veterinarians (NASPHV) or an equivalent form
147 approved by the local government that contains all the
148 information required by the NASPHV Rabies Vaccination
149 Certificate. The veterinarian who administers the rabies
150 vaccination, or who supervises an employee, agent, or contractor
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151 of an animal control authority administering the rabies
152 vaccination, vaccine to an animal as required under this section
153 may affix his or her signature stamp in lieu of an actual
154 signature.
155 Section 6. This act shall take effect July 1, 2021.
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COMMERCE COMMITTEE
CS/HB 911 by Rep. Buchanan
Medical Treatment of Animals
AMENDMENT SUMMARY
April 19, 2021
Amendment 1 by Rep. Buchanan (strike-all):
The amendment:
• Defines a “limited veterinarian/client/patient relationship” to include establishing a
relationship with a client/patient using veterinary telemedicine that includes audio-visual
communication.
• Defines “virtual physical examination” to mean a limited physical examination performed
through the use of a video-based platform that allows for audio-visual communication
between the veterinarian and the client/patient.
• Requires a virtual physical examination for the veterinarian to practice veterinary
telemedicine.
• Limits veterinarians that have a limited veterinarian/client/patient relationship, to only use
veterinary telemedicine to provide for the triage of patients in first aid and emergency
cases, and consultation and prescription of drugs for the following areas of care:
nutrition, training, dermatological conditions, and anxiety.
• Prohibits veterinarians from prescribing drugs for extralabel use or veterinary feed
directive drugs without a full veterinarian/client/patient relationship.
• Prohibits veterinarians from prescribing controlled substances if the
veterinarian/client/patient relationship is established only by veterinary telemedicine.
• Limits veterinarians with a limited veterinarian/client/patient relationship to only prescribe
certain medications via veterinary telemedicine.
• Provides a sunset and review provision that requires the veterinary telemedicine portions
of the bill to expire December 31, 2024, unless reenacted by the legislature.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 911 (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 Buchanan offered the following:
3
4 Amendment (with title amendment)
5 Remove everything after the enacting clause and insert:
6 Section 1. Section 474.202, Florida Statutes, is amended,
7 to read:
8 474.202 Definitions.—As used in this chapter:
9 (14) “Limited veterinarian/client/patient relationship”
10 means a relationship where the veterinarian has assumed the
11 responsibility for making medical judgments regarding the health
12 of the animal and its need for medical treatment where the
13 relationship is established with a video-based platform that
14 allows for audio-visual communication between the veterinarian
15 and the client/patient.
16 (15) “Veterinary telemedicine” means the practice of
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 911 (2021)
Amendment No. 1
17 veterinary medicine in a remote setting where the veterinarian
18 has a limited veterinarian/client/patient relationship.
19 (16) “Virtual physical examination” means a limited
20 physical examination performed by the client under the direction
21 of the veterinarian and a visual examination performed by the
22 veterinarian during the same consult, which must take place
23 through the use of a video-based platform that allows for audio-
24 visual communication between the veterinarian and the
25 client/patient.
26 Section 2. Section 474.2021, Florida Statutes, is created
27 to read:
28 474.2021 Veterinary telemedicine.—
29 (1) A veterinarian may practice veterinary telemedicine as
30 defined in s. 474.202(15), and is responsible for using
31 professional judgement to determine if the service can be
32 delivered according to the same standard of care as required in-
33 person. A virtual physical examination as defined in s.
34 474.202(16), is required for the veterinarian to assume
35 responsibility for making medical judgments or providing
36 treatment by means of veterinary telemedicine in a manner
37 consistent with the veterinary standard of care. A veterinarian
38 that has a full veterinary/client/patient relationship as
39 defined in s. 474.202(12), that is not limited in nature may
40 practice veterinary medicine and veterinary telemedicine and may
41 communicate with the client via any remote means, including
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Bill No. CS/HB 911 (2021)
Amendment No. 1
42 audio-visual, telephonic and e-mail communication.
43 (2)(a) A veterinarian that has a limited
44 veterinarian/client/patient relationship as defined in s.
45 474.202(14), may only provide the following services through
46 veterinary telemedicine:
47 1. triage of patients in first aid and emergency cases.
48 2. consultation and prescription of drugs for the
49 following areas of care: nutrition, training, dermatological
50 conditions, and anxiety.
51 (b) Notwithstanding paragraph (a), a veterinarian may not
52 prescribe drugs for extralabel use or veterinary feed directive
53 drugs without a full veterinarian/client/patient relationship
54 that is established through a physical examination or medically
55 appropriate and timely visits to the premises where the animal
56 is kept and is otherwise consistent with federal law.
57 (3) A veterinarian may not prescribe controlled substances
58 if the veterinarian has a veterinarian/client/patient
59 relationship established only by veterinary telemedicine. A
60 veterinarian with a limited veterinarian/client/patient
61 relationship, may only prescribe the following medications via
62 veterinary telemedicine:
63 1. antimicrobials;
64 2. anxiolytics;
65 3. antiparasitics;
66 4. antipruritics;
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Bill No. CS/HB 911 (2021)
Amendment No. 1
67 5. noncontrolled analgesics;
68 6. ophthalmic medications;
69 7. topical medications;
70 8. prescription diets;
71 9. aural medications; and
72 10. dosage form animal health products.
73 a. Dosage form animal health product means any product
74 intended to affect the structure or function of the animal’s
75 body other than by providing nutrition to the animal. These
76 products include oils, tinctures, capsules, tables, liquids,
77 soft chews and chewable limited dose products. Such term would
78 not include animal feed supplements, products that are
79 represented as a primary meal for the intended animal species or
80 any other product that is intended as a snack treat or as a
81 behavioral reward treat or dental product providing mechanical
82 and/or abrasive action.
83 b. Dosage Form Animal Health Products shall bear a label
84 with the following information:
85 (I) the net weight or count.
86 (II) the product name and the brand name, if any, under
87 which the animal health product is distributed.
88 (III) the established name of each active ingredient and
89 the amount of active ingredient per serving in descending order.
90 (IV) precautionary statements and warnings required to
91 ensure the safe and effective use of the animal health product.
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Amendment No. 1
92 (V) the name and principal mailing address of the
93 manufacturer or the company responsible for distributing the
94 animal health product unless listed in the local telephone
95 directory then name, city, state and zip code is only required.
96 (VI) the established name of each inactive ingredient in
97 alphabetical order.
98 (VII) adequate directions for use of the animal health
99 product.
100 (VIII) structure-function claim stating the intended non-
101 nutritional benefit of the animal health product.
102 (4) A veterinarian must hold a current license to practice
103 veterinary medicine in this state in order to practice
104 veterinary telemedicine.
105 (5) The board has jurisdiction over a veterinarian
106 practicing veterinary telemedicine in this state, regardless of
107 where the veterinarian's physical offices are located. The
108 practice of veterinary telemedicine in accordance with this
109 section is not itself a standard of care violation, and a
110 veterinarian may not be disciplined solely for practicing
111 veterinary telemedicine. The same veterinary standard of care
112 applies to services provided through veterinary telemedicine as
113 applies to veterinary care provided during an in-person visit.
114 Section 3. Paragraph (a) of subsection (5) of section
115 474.203, Florida Statutes, is amended to read:
116 474.203 Exemptions.—This chapter does not apply to:
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Amendment No. 1
117 (5)(a) Any person, or the person's regular employee,
118 administering to the ills or injuries of her or his own animals,
119 including, but not limited to, castration, spaying, and
120 dehorning of herd animals, unless title is transferred or
121 employment provided for the purpose of circumventing this law.
122 This exemption does not apply to any person licensed as a
123 veterinarian in another state or foreign jurisdiction and
124 practicing temporarily in this state. However, except as
125 provided in s. 828.30, only a veterinarian may immunize or treat
126 an animal for diseases that are communicable to humans and that
127 are of public health significance.
128
129 For the purposes of chapters 465 and 893, persons exempt
130 pursuant to subsection (1), subsection (2), or subsection (4)
131 are deemed to be duly licensed practitioners authorized by the
132 laws of this state to prescribe drugs or medicinal supplies.
133 Section 4. Paragraph (y) of subsection (1) of section
134 474.214, Florida Statutes, is amended to read:
135 474.214 Disciplinary proceedings.—
136 (1) The following acts shall constitute grounds for which
137 the disciplinary actions in subsection (2) may be taken:
138 (y) Using the privilege of ordering, prescribing, or
139 making available medicinal drugs or drugs as defined in chapter
140 465, or controlled substances as defined in chapter 893, for use
141 other than for the specific treatment of animal patients for
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Amendment No. 1
142 which there is a documented veterinarian/client/patient
143 relationship. Pursuant thereto, The veterinarian shall:
144 1. Have sufficient knowledge of the animal to initiate at
145 least a general or preliminary diagnosis of the medical
146 condition of the animal, which means that the veterinarian is
147 personally acquainted with the keeping and caring of the animal
148 or and has recently seen the animal or has made medically
149 appropriate and timely visits to the premises where the animal
150 is kept.
151 2. Be available or provide for followup care and treatment
152 in case of adverse reactions or failure of the regimen of
153 therapy.
154 3. Maintain records which document patient visits,
155 diagnosis, treatment, and other relevant information required
156 under this chapter.
157 Section 5. Subsections (1) and (3) of section 828.30,
158 Florida Statutes, are amended to read:
159 828.30 Rabies vaccination of dogs, cats, and ferrets.—
160 (1)(a) Except as provided in paragraph (b), all dogs,
161 cats, and ferrets 4 months of age or older must be vaccinated by
162 a licensed veterinarian against rabies with a vaccine that is
163 licensed by the United States Department of Agriculture for use
164 in those species.
165 (b) An employee, an agent, or a contractor of an animal
166 control authority acting under the indirect supervision of a
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 911 (2021)
Amendment No. 1
167 veterinarian may vaccinate impounded animals that will be
168 transferred, rescued, fostered, adopted, or reclaimed by the
169 owner. As used in this subsection, the term "indirect
170 supervision," means that the supervising veterinarian is
171 available for consultation by any remote means, including audio-
172 visual, telephonic, or e-mail communication, but is not required
173 to be on the premises during such consultation. The supervising
174 veterinarian assumes responsibility for the veterinary care
175 given to the animal by any person working under or at his or her
176 direction and supervision.
177 (c) The owner of every dog, cat, and ferret shall have the
178 animal revaccinated 12 months after the initial vaccination.
179 Thereafter, the interval between vaccinations shall conform to
180 the vaccine manufacturer's directions. The cost of vaccination
181 must be borne by the animal's owner. Evidence of circulating
182 rabies virus neutralizing antibodies may shall not be used as a
183 substitute for current vaccination in managing rabies exposure
184 or determining the need for booster vaccinations.
185 (3) Upon vaccination against rabies, the licensed
186 veterinarian shall provide the animal's owner and the animal
187 control authority with a rabies vaccination certificate. Each
188 animal control authority and veterinarian shall use the "Rabies
189 Vaccination Certificate" of the National Association of State
190 Public Health Veterinarians (NASPHV) or an equivalent form
191 approved by the local government that contains all the
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 911 (2021)
Amendment No. 1
192 information required by the NASPHV Rabies Vaccination
193 Certificate. The veterinarian who administers the rabies
194 vaccination, or who supervises an employee, an agent, or a
195 contractor of an animal control authority administering the
196 rabies vaccination, vaccine to an animal as required under this
197 section may affix his or her signature stamp in lieu of an
198 actual signature.
199 Section 6. Unless reviewed and reenacted by the
200 legislature, section 1, section 2, and section 4 of this act
201 shall expire December 31, 2024, and those laws shall revert to
202 that in existence on June 30, 2021, except that any amendments
203 to those laws enacted other than by this act shall be preserved
204 and continue to operate to the extent that such amendments are
205 not dependent upon the portions of text which expire pursuant to
206 this section.
207 Section 7. This act shall take effect July 1, 2021.
208
209 -----------------------------------------------------
210 T I T L E A M E N D M E N T
211 Remove everything before the enacting clause and insert:
212 An act relating to the medical treatment of animals;
213 amending s. 474.202, F.S.; defining the term "Limited
214 veterinarian/client/patient relationship"; defining
215 the term "veterinary telemedicine"; defining the term
216 “virtual physical examination”; creating s. 474.2021,
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 911 (2021)
Amendment No. 1
217 F.S.; authorizing veterinarians to practice veterinary
218 telemedicine; specifying the services a veterinarian
219 may provide without first establishing a limited
220 veterinarian/client/patient relationship; specifying
221 the services a veterinarian may provide without first
222 establishing a veterinarian/client/patient
223 relationship; prohibiting veterinarians from
224 prescribing controlled substances under certain
225 circumstances; providing exceptions; providing license
226 requirements; providing jurisdiction of the Florida
227 Board of Veterinary Medicine; providing construction;
228 amending s. 474.203, F.S.; revising exceptions to who
229 may immunize or treat an animal for certain diseases;
230 amending s. 474.214, F.S.; revising grounds for
231 disciplinary action against a veterinarian; amending
232 s. 828.30, F.S.; authorizing employees, agents, or
233 contractors of animal control authorities to
234 administer rabies vaccinations under certain
235 circumstances; providing that a supervising
236 veterinarian assumes responsibility for any person
237 working at his or her discretion or under his or her
238 supervision; defining the term "indirect supervision";
239 providing requirements; authorizing a veterinarian who
240 indirectly supervises the administration of the rabies
241 vaccination to affix his or her signature stamp on a
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 911 (2021)
Amendment No. 1
242 rabies vaccination certificate; providing for future
243 legislative review and repeal of the act; providing an
244 effective date.
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CS/CS/HB 987
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 987 Age Restrictions on Tobacco and Nicotine Products
SPONSOR(S): State Administration & Technology Appropriations Subcommittee, Regulatory Reform
Subcommittee, Toledo and others
TIED BILLS: IDEN./SIM. BILLS: CS/CS/SB 1080
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform Subcommittee 12 Y, 4 N, As CS Brackett Anstead
2) State Administration & Technology 9 Y, 5 N, As CS Helpling Topp
Appropriations Subcommittee
3) Commerce Committee Brackett Hamon
SUMMARY ANALYSIS
The Division of Alcoholic Beverages and Tobacco (Division) within the Department of Business and Professional
Regulation (DBPR) is responsible for the regulation of tobacco products. “Tobacco products” are loose tobacco leaves,
products made from tobacco leaves, and cigarette wrappers, which can be used for smoking, sniffing, or chewing.
Retailers that sell or deal, at retail, in tobacco products are required to have a permit issued by the Division and are
required to comply with certain provisions related to the sale of such products. The Division enforces the tobacco
regulations, and may issue fines to permit holders or suspend or revoke such permits for violations.
Nicotine products and nicotine dispensing devices are not included in the definition of tobacco products. Retailers that sell
only nicotine products and nicotine dispensing devices are not required to obtain a tobacco retailer permit or a permit from
any other state agency. As such, these retailers are not subject to state regulatory oversight.
Current state law prohibits anyone under the age of 18 from purchasing or knowingly possessing tobacco products,
nicotine products, and nicotine dispensing devices, unless the person falls under an exemption such as being in the
military or handling tobacco products as a part of a person’s lawful employment. However, federal law was amended in
2019 to raise the minimum age to 21.
The bill:
Increases the minimum age to lawfully purchase and knowingly possess tobacco products, nicotine products, and
nicotine dispensing devices in Florida from 18 to 21 years of age.
Prohibits the sale, delivery, bartering, furnishing, shipping, or giving of tobacco products, nicotine products, or
electronic nicotine dispensing devices to persons under 21 years of age.
Creates regulations for the sale and delivery of nicotine products and nicotine dispensing devices through the mail
and over the Internet, which are similar to the regulations for tobacco products.
Preempts the establishment of the minimum age to possess or purchase nicotine dispensing devices, nicotine
products, and tobacco products and the marketing, sale, and delivery of such products to the state.
Modifies current exceptions to the minimum age requirements to purchase or knowingly possess tobacco
products and applies the same exceptions to nicotine products and nicotine dispensing devices.
The bill creates a retail nicotine products permit, which must be obtained from the Division to sell nicotine products and
nicotine dispensing devices. This establishes state regulatory oversight for retailers of nicotine products and nicotine
dispensing devices. The regulations for the sale of nicotine products and nicotine dispensing devices mirror the
regulations for the sale of tobacco products; however, the bill does not impose a tax or licensing fee similar to tobacco
products.
The bill authorizes a holder of a tobacco retail permit to sell nicotine products and nicotine dispensing devices in addition
to tobacco products.
The bill may have an indeterminate negative fiscal impact to DBPR and may have a significant but indeterminate negative
fiscal impact to state revenues. See Fiscal Analysis and Economic Impact Statement.
The bill provides an effective date of December 1, 2021.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
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DATE: 4/18/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Federal Regulation of Tobacco Products
The Family Smoking Prevention and Tobacco Control Act of 2009 (Tobacco Control Act) gives the U.S.
Food and Drug Administration (FDA) authority to regulate the manufacture, distribution, and marketing
of tobacco products to protect the public health. The Tobacco Control Act provides advertising and
labeling guidelines, provides standards for tobacco products, and requires face-to-face transactions for
tobacco sales with certain exceptions.1
On August 8, 2016, the FDA extended the definition of “tobacco product[s]” regulated under the Act to
include electronic nicotine delivery systems (ENDS). ENDS include e-cigarettes, e-cigars, e-hookah,
vape pens, personal vaporizers and electronic pipes. Additionally, the definition of tobacco products
includes components and parts such as e-liquids, tanks, cartridges, pods, wicks, and atomizers.
Federal law requires that a retailer may sell cigarettes and smokeless tobacco only in “direct, face-to-
face exchanges between the retailer and the customer.” This language explicitly prohibits vending
machines and self-service displays.2 This language is referred to in the industry as the “behind the
counter” language; however, this does not specifically require that a retailer place cigarettes or
smokeless tobacco behind the counter. A locked display case would likely meet the self-service display
prohibition. Facilities that prohibit minors under the age of 21 are exempt from this federal requirement.
Retailers are also required to check a purchaser’s ID unless the purchaser is over the age of 30.3
Federal law preempts states from providing additional or different requirements for tobacco products in
regards to “standards, premarket review, adulteration, misbranding, labeling, registration, good
manufacturing standards, or modified risk tobacco products.” However, federal law explicitly preserves
the right of states, or any political subdivision of a state, to enact laws, rules, regulations or other
measures related to prohibiting the sale, distribution, possession, exposure to, access to, advertising
and promotion of tobacco products which are more stringent than federal requirements.4
Tobacco 21
In 2013, the FDA contracted with the Institute of Medicine (IOM) to conduct a study to better
understand the potential health benefits of raising the minimum age to purchase tobacco. In 2015, the
IOM published their report and submitted it to Congress. The report concluded that raising the minimum
age to purchase tobacco to 21:5
Would most likely lead to substantial reduction in smoking related mortality, and
Could result in significant health benefits for those born between 2000 and 2018, including:
o approximately 249,000 fewer premature deaths,
o 45,000 fewer deaths from lung cancer; and
o 4.2 million fewer years of life lost.
The report also concluded that the age group most affected by increasing the minimum age to
purchase tobacco products to 21 would be those who are age 15 to 17 years old. Because 21 year olds
are less likely than 18 year olds to be in the same social circles of 15-17 year olds, increasing the
1
Federal Food, Drug, and Cosmetic Act, 21 USC § 351 et seq; 15 U.S.C. s. 1333, s. 1335; 21 U.S.C. s. 387g, s. 387f.
2
21 C.F.R. § 1140.14.
3
Id.
4
21 U.S.C. § 387p.
5
Institute of Medicine, Public Health Implications Raising the Minimum Age of Legal Access to Tobacco Products Report Brief, (Jul.
23, 2015) https://www.ncbi.nlm.nih.gov/books/NBK310401/ (last visited on Mar. 15, 2021).
STORAGE NAME: h0987c.COM PAGE: 2
DATE: 4/18/2021
minimum age would likely result in 15 to 17 year olds having less access to tobacco products and
delaying the age that a person is first exposed to tobacco.6
According to the report, delaying the date a person uses a tobacco product is critical because the
adolescent brain is uniquely vulnerable to nicotine and adolescents are particularly susceptible to peer
pressure. Delaying the age a person is first exposed to tobacco will likely decrease the prevalence of
tobacco users.7
The FDA also reports that between 2011 and 2014, the number of high school students who had used
an e-cigarette in the last 30 days increased nearly 800 percent, with 13.4 percent of high school
students reporting usage in 2014.8 In 2018, over 4.9 million middle and high school students were
current users of e-cigarettes.9 As of 2018, more than one in four high school seniors and one in ten
middle school students used e-cigarettes.10 In 2020, among middle and high school students, 3.6
million were current users of e-cigarettes.11
In order to decrease youth usage of ENDS, the FDA has begun a Youth Tobacco Prevention Plan. The
plan has three main components: preventing youth access to tobacco products, ending marketing
aimed at youth, educating youth about the dangers of using tobacco and educating retailers about their
role in preventing underage usage of tobacco.12
Federal Minimum Age to Purchase Tobacco Products
On December 20, 2019, the Tobacco Control Act was amended to raise the federal minimum age of
the sale of tobacco products, including ENDS, from 18 to 21 years.13 The law was also changed to
require retailers to check a purchaser’s ID unless the purchaser is 30 years or older, instead of if the
purchaser is over 26 years of age. The law became effective on January 15, 2020, with the FDA
announcing that retailers may no longer sell tobacco products to anyone under the age of 21.14 Prior to
the enactment of this amendment the FDA used minors to ensure that retailers were complying with the
law. However, the FDA has begun using persons under the age of 21 for compliance checks.15
The federal government does not require states to enforce the federal minimum age, but states that do
not demonstrate that their retailers are complying with the federal minimum age are subject to a
possible reduction in funding for Substance Abuse Prevention and Treatment Block Grants.16
Substance Abuse Prevention and Treatment Block Grants are administered by the U.S. Department of
Health and Human Services (USDHHS), and are federal funds provided to the states to prevent
substance abuse.17
6
Id.
7
Id.
8
FDA, 81 C.F.R. 28973, https://www.federalregister.gov/d/2016-10685/p-635 (last visited Mar. 16, 2021).
9
FDA, Statement from FDA Commissioner Scott Gottlieb, M.D., on new data demonstrating rising youth use of tobacco products and
the agency’s ongoing actions to confront the epidemic of youth e-cigarette use, https://www.fda.gov/news-events/press-
announcements/statement-fda-commissioner-scott-gottlieb-md-new-data-demonstrating-rising-youth-use-tobacco (last visited Mar.
16, 2021).
10
Id.
11
FDA, Vaporizers, E-Cigarettes, and other Electronic Nicotine Delivery Systems (ENDS), https://www.fda.gov/tobacco-
products/products-ingredients-components/vaporizers-e-cigarettes-and-other-electronic-nicotine-delivery-systems-ends (last visited
Mar. 16, 2021).
12
Food and Drug Administration, FDA’s Youth Tobacco Prevention Plan,
https://www.fda.gov/TobaccoProducts/PublicHealthEducation/ProtectingKidsfromTobacco/ucm608433.htm (last visited Mar. 16,
2021).
13
Newly Signed Legislation Raises Federal Minimum Age of Sale of Tobacco Products to 21, United States Food and Drug
Administration, (Jan. 15, 2020) https://www.fda.gov/tobacco-products/ctp-newsroom/newly-signed-legislation-raises-federal-
minimum-age-sale-tobacco-products-21 (last visited Mar. 16, 2021).
14
Id. H.R. 1865 Further Consolidated Appropriations Act, 2020, 116th Congress (2019-2020).
15
FDA, Tobacco 21, (Fe. 12, 2020) https://www.fda.gov/tobacco-products/retail-sales-tobacco-products/tobacco-21 (last visited Mar.
16, 2021).
16
H.R. 1865 Further Consolidated Appropriations Act, 2020, 116th Congress (2019-2020).; 42. U.S.C. § 300x-26.
17
USDHHS, Substance Abuse Prevention and Treatment Block Grant, https://www.samhsa.gov/grants/block-grants/sabg (last visited
Mar. 16, 2021).
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Failure to demonstrate a state’s retailers are complying with the federal minimum age could lead to a
reduction of a block grant by up to 10% for the fiscal year. The federal government will not reduce a
block grant for failing to enforce the federal minimum wage for three years in order to give the states a
chance to make any necessary changes.18
According to the USDHHS, in the fiscal year 2020, Florida received a Substance Abuse and Prevention
and Treatment Block Grant of $111,385,315.19
The federal government considers a state to be failing the requirement that its retailers are complying
with the federal minimum age if its retail violation rate is more than 20 percent. A violation is defined as
the fraction (or percentage) of tobacco-selling outlets in a state that are accessible to and sell tobacco
to persons under the age of 21.20
States are required to conduct annual surveys to determine their compliance rate. In conducting their
surveys, states must:21
Develop a sampling frame that includes both over-the-counter and vending machine locations
accessible to youth and young adults under the age of 21
Ensure that the sampling frame includes, at a minimum, 80% of the tobacco outlets in the state
(CSAP requires states that use a list frame to conduct and report the results of a coverage
study designed to assess the completeness of the sampling frame.)
Design a sampling methodology and implementation plan that are based on sound survey
sampling methodology
Sample a large enough number of outlets to meet USDHHS’s precision requirement (one-sided
95% confidence interval)
Obtain a completion rate of 90% or better
Record the actual steps of the survey process in the field and keep records of all sources of
sample attrition in the field
Weight the results of the survey to account for unequal probabilities of selection, differences in
percentages of eligible outlets between strata or clusters, and other deviations from the
intended design
The latest date for each state’s retail violation rate is 2018. In 2018, Florida’s retail violation rate was
9.2%. However, that was before the federal government raised the minimum age to purchase tobacco
products to 21 years of age.22
Additionally, according to news reports, the recent increase in the federal minimum age is causing
confusion among retailers in states where the minimum age is still 18 years of age. Retailers are not
sure which law they are required to follow, which may lead to one retailer enforcing the state minimum
age and another retailer enforcing the federal minimum age.23
18
H.R. 1865 Further Consolidated Appropriations Act, 2020, 116th Congress (2019-2020).; 42. U.S.C. § 300x-26; Substance Abuse
and Mental Health Services Administration, Revision to Guidance, (June 12, 2020) https://www.samhsa.gov/sites/default/files/synar-
guidance-tobacco-21.pdf (last visited Mar. 18, 2021).
19
USDHHS, Florida Summaries FY 2020, https://www.samhsa.gov/grants-awards-by-state/FL/2020 (last visited Mar. 18, 2021).
20
Substance Abuse and Mental Health Services Administration, Revision to Guidance, (June 12, 2020)
https://www.samhsa.gov/sites/default/files/synar-guidance-tobacco-21.pdf (last visited Mar. 18, 2021).
21
Substance Abuse and Mental Health Services Administration, Programmatic Requirements for the Synar Program,
https://www.samhsa.gov/synar/requirements (last visited Mar. 18, 2021).
22
Substance Abuse and Mental Health Services Administration, State Target and Reported Retailer Violation Rates,
https://www.samhsa.gov/sites/default/files/synar_program_rvr_table_1997-2018_dec_11_2018.pdf (last visited Mar. 18, 2021).
23
Adam Kurtz, New Tobacco 21 law causes confusion about enforcement, start date, Grand Forks Herald (Jan. 10, 2020)
https://www.grandforksherald.com/business/retail/4853919-New-Tobacco-21-law-causes-confusion-about-enforcement-start-date
(last visited Mar. 18, 2021); Naomi Kowles, Some local confusion after federal passage of new minimum age for tobacco purchases,
WSAW-TV (Jan. 16, 2020) https://www.wsaw.com/content/news/Some-local-confusion-after-federal-passage-of-new-minimum-age-
for-tobacco-purchases-567056371.html (last visited Mar. 18, 2021).
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Jurisdictions that Raised the Minimum Age from 18 to 21
Thirty states, and the U.S. Territory of Guam, have passed legislation raising the minimum age for a
person to lawfully possess or purchase tobacco products and nicotine products to 21 years of age:24
Arkansas New Mexico
California New Jersey
Colorado New York
Connecticut Ohio
Delaware Oklahoma
Hawaii Oregon
Illinois Pennsylvania
Indiana South Dakota
Iowa Tennessee
Kentucky Texas
Maine Utah
Maryland Vermont
Massachusetts Virginia
Minnesota Washington
Mississippi Wyoming
At least 530 localities, including New York City, Chicago, San Francisco, San Antonio, Boston,
Cincinnati, Cleveland, Columbus, and Kansas City (in Kansas and Missouri), plus Washington, D.C.,
have also raised the minimum age to 21 years of age.25
In January of 2019, Alachua County became the first local government in Florida to raise the minimum
legal age to purchase tobacco to 21 years of age. The Alachua County ordinance applies to tobacco
products, nicotine products, and nicotine dispensing devices. Municipalities in the county are
authorized to opt out of the ordinance if they choose. In addition, retailers are required to purchase and
maintain a special license to sell tobacco, nicotine products, and nicotine dispensing devices.
Businesses located within 1,000 feet of a public school are prohibited from licensure; however,
businesses previously licensed to sell tobacco products by the state prior to the adoption of the
ordinance are not required to give up their license. Penalties for violations include license suspensions
ranging from seven days up to losing the license permanently for four violations in a 24-month period.26
In September of 2019, Fort Lauderdale became the second local government in Florida to raise the
minimum age to purchase tobacco to 21 years of age. The Fort Lauderdale ordinance applies to
tobacco products, nicotine products, and nicotine dispensing devices. Penalties for violations include
warnings and civil citations ranging from $500 to $1,000.27
Private Sector
24
See Campaign for Tobacco-Free Kids, States and Localities that have Raised the Minimum Legal Sale Age for Tobacco Products to
21, available at https://www.tobaccofreekids.org/what-we-do/us/sale-age-21 (last visited Mar. 16, 2021).
25
Id.
26
Alachua County Ord. No. 2019-04.
27
City of Fort Lauderdale Ord. No C-19-21.
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Recently, members of the nicotine product manufacturing industry indicated support for increasing the
minimum age to purchase tobacco products, including nicotine products, and nicotine dispensing
devices, from 18 to 21 years of age. Juul Labs, the largest e-cigarette company, stated that they
support raising the minimum age to purchase tobacco products, nicotine products, and nicotine
dispensing devices from 18 to 21 years of age. One of Juul Labs’ ads states:28
“It’s time to raise the legal age to purchase tobacco products, including vapor, from 18 to
21. Because when youth never start smoking and vaping, they never have to stop.”
E-Cigarette, or Vaping, Product Use-Associated Lung Injury (EVALI)
As of February 18, 2020, there have been 2,807 cases of EVALI and 68 deaths in the United States.
119 of the cases and two of the deaths have been in Florida. According to the Centers for Disease
Control (CDC), tetrahydrocannabinol (THC) and Vitamin E acetate are strongly linked to the outbreak of
EVALI. The CDC and FDA recommend that people not use THC-containing vaping products,
particularly products from informal sources like friends, family, or in-person or online dealers.29
Symptoms of the lung injury include:30
Cough, shortness of breath, or chest pain;
Nausea, vomiting, or diarrhea; and
Fatigue, fever, or abdominal pain.
The CDC has the following data on the age and sex of 2,668 of the cases:31
66% of the patients are male;
The median age of patients is 24 years old and ranges from 13-85 years. However, 76% of the
patients are under 35 years old;
By age group category:
o 15% of patients are under 18 years old;
o 37% of patients are 18 to 24 years old;
o 24% of patients are 25 to 34 years old; and
o 24% of patients are 35 years or older.
Effect of Smoking and Vaping on COVID-19
According to the CDC, being a current or former smoker increases a person’s risk to develop a severe
illness from COVID-19. According to the Massachusetts General Hospital, a person who smokes and
tests positive for COVID-19, is twice as likely to develop a severe case of COVID-19 than a person with
no smoking history, and is more likely to be admitted to an Intensive Care Unit, placed on a ventilator,
or die from the illness.32
According to a study led by researchers at the Stanford University School of Medicine, teens and young
adults who vaped were five to seven times more likely to be infected with COVID-19 than those who did
28
Juul Labs, Our Support For T21 Laws, https://newsroom.juul.com/t21/ (last visited Mar. 16, 2021).
29
CDC, Outbreak of Lung Injury Associated with the Use of E-Cigarette, or Vaping, Products,
https://www.cdc.gov/tobacco/basic_information/e-cigarettes/severe-lung-disease.html#latest-outbreak-information (last visited Mar.
16, 2021).Florida Department of Health, Lung Injury Associated with E-Cigarette Use, or Vaping- Florida, Florida Department of
Health http://www.flhealthcharts.com/ChartsReports/rdPage.aspx?rdReport=ChartsProfiles.LungInjuryE-CigaretteUse (last visited
Mar. 16, 2021).
30
CDC, For the Public, https://www.cdc.gov/tobacco/basic_information/e-cigarettes/severe-lung-disease/need-to-know/index.html
(last visited Mar. 18, 2021).
31
CDC supra, note 29.
32
CDC, People with Certain Medical Conditions, (Mar. 15, 2021) https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
precautions/people-with-medical-conditions.html#smoking (last visited Mar. 18, 2021); Massachusetts General Hospital, Smoking,
Vaping and COVID-19: About the Connection and How to Quit, https://www.massgeneral.org/assets/MGH/pdf/children/adolescent-
medicine-smoking-and-covid19.pdf (last visited Mar. 18, 2021).
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not use e-cigarettes.33 Also, according to Massachusetts General Hospital, people who smoke or vape
have a higher risk of developing chronic obstructive pulmonary disease (COPD), which is a long-term
lung disease that affects airflow through the lungs, which according to the CDC, puts users at a higher
risk of developing a severe case of COVID-19.34
Regulation of Tobacco Products in Florida
The Division of Alcoholic Beverages and Tobacco (Division) within the Department of Business and
Professional Regulation (DBPR) is the state agency responsible for the regulation and enforcement of
the tobacco products under ch. 569, F.S. “Tobacco products” include loose tobacco leaves, and
products made from tobacco leaves, in whole or in part, and cigarette wrappers, which can be used for
smoking, sniffing, or chewing.35
Section 210.25(11), F.S., relating to the tax on tobacco products other than cigarettes or cigars, defines
the term “tobacco products” differently as “loose tobacco suitable for smoking; snuff; snuff flour;
cavendish; plug and twist tobacco; fine cuts and other chewing tobaccos; shorts; refuse scraps;
clippings, cuttings, and sweepings of tobacco, and other kinds and forms of tobacco prepared in such
manner as to be suitable for chewing.”
“Tobacco products” in either definition does not include nicotine products or nicotine dispensing
devices.
Cigarette and Tobacco Products Wholesalers, Distributors, and Manufacturers
A person must obtain a permit from the Division in order to distribute tobacco products, not including
cigarettes or cigars. A person must obtain a permit for each place of business. The fee for such permit
is $25. There is no minimum age requirement to obtain a permit to distribute tobacco products.36
A person must obtain a cigarette permit from the Division in order to import, export, manufacture, deal
at wholesale, or distribute cigarettes in the state. A person must obtain a permit for each place of
business in the state or its principal place of business if the person does not have a business in this
state. The fee for such permit is $100. The Division may only issue permits to persons who are 18
years or older or corporations with officers who are 18 years or older.37
Tobacco Products Retailers
In order to sell tobacco products at retail or operate a tobacco products vending machine in Florida, a
person must obtain a retail tobacco products dealer permit from the Division. A person must obtain a
permit for each place of business or premises where tobacco products are sold. Any person who owns,
leases, furnishes, or operates a vending machines that dispense tobacco products must also obtain a
permit for each machine. The fee for such permit is $50.38 The Division may only issue permits to
persons who are 18 years or older or corporations with officers who are 18 years or older.39
Anyone who deals in tobacco products at retail or allows a vending machine on the premises without a
permit is subject to a $500 fine.40
33
Erin Digitale, Vaping linked to COVID-19 risk in teens and young adults, Stanford Medicine, News Center (Aug. 11, 2020)
https://med.stanford.edu/news/all-news/2020/08/vaping-linked-to-covid-19-risk-in-teens-and-young-adults.html (last visited Mar. 18,
2021).
34
CDC supra note 32.
35
S. 569.002(6), F.S.
36
S. 210.40, F.S.
37
S. 210.15, F.S.
38
S. 569.003, F.S.
39
S. 569.003, F.S.
40
S. 569.005, F.S.
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The place or premises covered by a permit is subject to inspection and search without a search warrant
by the Division or its authorized assistants, and by sheriffs, deputy sheriffs, or police officers, to
determine compliance with requirements for tobacco sales and dealing.41
DBPR is required to submit an annual report to the Governor and Legislature regarding the
enforcement of tobacco products, including:42
The number and results of compliance visits by the Division;
The number of violations for failure of a retailer to hold a valid license;
The number of violations for selling tobacco products to anyone under the age of 18 and the
results of administrative hearings on such violations; and
The number of people under the age of 18 cited, including sanctions imposed as a result of
such citation, for misrepresenting their age, purchasing tobacco products underage, and
misrepresenting military service for the purpose of obtaining tobacco products underage.
Florida also has an excise tax and surcharge on cigarettes and other tobacco products, not including
cigars. The tax and surcharge for cigarettes is $0.1695 to $0.42375 per pack and a surcharge of $0.50
to $1.25 per pack depending on the number of cigarettes in the pack. The excise tax for tobacco
products is 25% of the wholesale price and the surcharge is 60% of the wholesale price. There is no
excise tax or surcharge for nicotine products or nicotine dispensing devices.43
Requirements for Tobacco Products Retailers
Retail tobacco products dealers (retailers) must post a clear and conspicuous sign that the sale of
tobacco products is prohibited to persons under the age of 18 and that proof of age is required for
purchase. The Division is required to make the signs available to retailers. Retailers must also have
instructional material in the form of a calendar or similar format to assist in determining the age of the
person attempting to purchase a tobacco product.44
The sale or delivery of tobacco products is prohibited, except when those products are under the direct
control or line of sight of the retailer or the retailer’s agent or employee in order to prevent persons
under 18 years of age from purchasing or receiving tobacco products.
If a tobacco product is sold from a vending machine, the vending machine must have:
An operational lockout device which is under the control of the retailer or the retailer’s agent or
employee who directly regulates the sale of items through the machine by triggering the lockout
device to allow the dispensing of one tobacco product;
A mechanism on the lockout device to prevent the machine from functioning if the power source
for the lockout device fails or if the lockout device is disabled;
A mechanism to ensure that only one tobacco product is dispensed at a time.45
These requirements for the sale of tobacco products do not apply to an establishment that prohibits
persons under 18 years of age on the premises and do not apply to the sale or delivery of cigars and
pipe tobacco.46
If the Division determines a tobacco product retailer or a tobacco product retailer’s employee violated
the regulations for tobacco product retailers, the Division can suspend or revoke the retailer’s permit or
assess a fine up to $1,000 for each violation.47
41
S. 569.004, F.S.
42
S. 569.19, F.S.
43
Ss. 210.011, 210.02, 210.276, and 210.30, F.S.; DBPR, Alcholic Beverages & Tobacco – Tax & Reporting Information For
Licensees, http://www.myfloridalicense.com/DBPR/alcoholic-beverages-and-tobacco/tax-and-reporting-information-for-
licensees/#1510753842753-25986d10-086f (last visited Mar. 16, 2021).
44
S. 569.14, F.S.
45
S. 569.007(1), F.S.
46
S. 569.007(2) and (3), F.S.
47
S. 569.006, F.S.
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If the Division discovers a tobacco product retailer’s employee illegally sold tobacco products to a
person under 18 years of age, the Division may mitigate penalties, if:
The retailer is qualified as a responsible retailer by establishing and implementing specified
practices designed to ensure that the retailer’s employees comply with ch. 569, F.S., such as
employee training.
The retailer had no knowledge of that employee’s violation at the time of the violation and did
not direct, approve, or participate in the violation.
The sale was made through a vending machine equipped with an operational lock-out device.48
Mail Order, Internet, and Other Remote Sales of Tobacco Products in Florida
Section 210.095, F.S., provides requirements for the delivery of mail order, Internet, and other remote
sales of tobacco products and cigarettes, referred to as “delivery sales.”
Each person who mails, ships, or otherwise delivers tobacco products or cigarettes in connection with
an order for a delivery sale to a consumer is required to:
Include, as part of the shipping documents, in a clear and conspicuous manner, the following
statement: “Tobacco Products: Florida law prohibits shipping to individuals under 18 years of
age and requires the payment of all applicable taxes.”
Use a method of mailing, shipping, or delivery which obligates the delivery service to:
o Require the signature of an adult who resides at the delivery address and obtain proof of
the legal minimum purchase age of the individual accepting delivery, if the individual
appears to be under 27 years of age.
o Require proof that the individual accepting delivery is either the addressee or the adult
designated by the addressee, in the form of a valid, government-issued identification
card bearing a photograph of the individual who signs to accept delivery of the shipping
container.
Provide to the delivery service, if such service is used, evidence of full compliance with
requirements for the collection and remittance of all taxes imposed on tobacco products or
cigarettes by this state with respect to the delivery sale.
Before the first delivery to a consumer, the person mailing, shipping, or delivering the tobacco products
or cigarettes must also:49
Obtain a certification from the person accepting delivery that includes reliable confirmation that
the person accepting delivery is an adult, and a written statement under penalty of perjury
providing the person’s date of birth, address, and confirmation that the person wants to accept
the delivery;
Make a good faith effort to verify the information in the certification by checking the information
against a commercially available database or obtaining a photocopy of the person’s ID;
Provide the person accepting the delivery a notice stating tobacco products are illegal for
underage persons and sales of such products are restricted to individuals who provide verifiable
proof of legal age to purchase, and tobacco products are taxable;
Impose a two-carton minimum on each order of cigarettes;
Submit to the credit card company necessary information so that the words “tobacco product”
appear on the person’s credit card statement when a purchase is made using a credit card;
Make a phone call to the individual who made the order to confirm the order before shipping the
order; and
Receive payment by a credit card or debit card in the name of the person accepting delivery or
a personal or company check in the name of the person, if the order is made in accordance with
an advertisement on the Internet.
48
See s. 569.008(3), F.S.
49
Id.
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A person who accepts an order for a delivery sale of tobacco products or cigarettes and delivers such
products without using a delivery service must comply with all of the delivery service requirements
listed above.50
Section 210.095(8), F.S., currently provides that the penalty for the following violations of the delivery
sale requirements is a misdemeanor of the third degree:51
A delivery of tobacco products, on behalf of a delivery service, to an individual who is under 18
years of age.
A person under the age of 18 who knowingly violates any of the provisions of the mail order or
internet sales requirements.
These provisions do not apply to nicotine products and nicotine dispensing devices. However, it is
illegal for a person to deliver nicotine products or nicotine dispensing devices to persons under 18
years of age.52
Tobacco Products and Minors
The sale, delivery, bartering, furnishing or giving of tobacco products or giving sample to products to
persons under the age of 18 is prohibited.53 A violation of this prohibition is a second degree
misdemeanor.54 A second or subsequent violation within one year of the first violation is a first degree
misdemeanor.55
It is a complete defense to a person charged with such a violation if the buyer or recipient falsely
evidenced that he or she was 18 years of age or older, a prudent person would believe the buyer or
recipient to be 18 years of age or older, and the buyer or recipient presented false identification upon
which the person relied upon in good faith.56
Persons under the age of 18 years are prohibited from knowingly possessing, directly or indirectly, any
tobacco products, or misrepresenting their age or military service for obtaining such products. Persons
who violate this noncriminal violation are punishable as follows:57
A first violation of this prohibition is a non-criminal violation with a penalty of 16 hours of
community service or a $25 fine, and attendance at a school-approved anti-tobacco program, if
locally available.
A second violation within 12 weeks of the first violation is punishable with a $25 fine.
A court may suspend or withhold issuance of a driver license for persons under 18 years of age
who fail to complete the noncriminal penalties for knowingly possessing or misrepresenting their
age in order to purchase tobacco products.
o A court may suspend or withhold issuance of a drivers’ license for 30 days for a first
violation, and for 45 days for a second violation within 12 weeks of the first violation.
50
S. 210.095, F.S.
51
Section 775.082, F.S., does not provide a third degree misdemeanor. Section 775.082, F.S., provides that a misdemeanor of the
second degree is punishable by a term of imprisonment not to exceed 60 days. Section 775.083, F.S., does not provide a third degree
misdemeanor. Section 775.083, F.S., provides that a misdemeanor of the second degree is punishable by a fine not to exceed $500.
52
S. 877.112(2), F.S.
53
Ss. 569.0075 and 569.101, F.S.
54
S. 775.082, F.S., provides that the penalty for a misdemeanor of the second degree is punishable by a term of imprisonment not
exceeding 60 days. Section 775.083, F.S. provides that the penalty for a misdemeanor of the second degree is punishable by a fine not
to exceed $500.
55
S. 775.082, F.S., provides that the penalty for a misdemeanor of the first degree is punishable by a term of imprisonment not
exceeding one year. Section 775.083, F.S. provides that the penalty for a misdemeanor of the first degree is punishable by a fine not to
exceed $1,000.
56
S. 569.101(3), F.S.
57
S. 569.11, F.S.
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However, this does not include any person under the age of 18 who:58
Has had his or her disability of nonage removed under ch. 743, F.S.;
Is in the military reserve or on active duty in the Armed Forces of the United States;
Is otherwise emancipated by a court of competent jurisdiction and released from parental care
and responsibility; or
Is acting in his or her scope of lawful employment with an entity licensed under the provisions of
ch. 210, F.S., relating to taxation of cigarettes and other tobacco products, or ch. 569, F.S.,
relating to tobacco products.
The Division and any law enforcement officer may enforce these provisions. A local government may
also designate certain employees or agents as tobacco product enforcement officers. A tobacco
enforcement officer or a correctional probation officer may issue a citation to a person under the age of
18, whom the officer has reasonable cause to believe an underage person is knowingly possessing
tobacco products or is lying about their age or military service in order to obtain such products.59
Eighty percent of all civil penalties received from violating prohibitions related to the possession or sale
of tobacco products by a county court must be remitted to the Department of Revenue for transfer to
the Department of Education for teacher training and for research and evaluation to reduce and prevent
the use of tobacco products by children.60 The remaining 20 percent of civil penalties received by a
county court must remain with the clerk of the county court to cover administrative costs.61
Nicotine Products Regulation in Florida
Section 877.112, F.S., provides for the regulation of nicotine products and nicotine dispensing devices,
such as electronic cigarettes (e-cigarettes). This statute extends the current prohibitions related to
tobacco products to the sale, gifting, possession, or use of nicotine products and nicotine dispensing
devices to and by persons under 18 years of age.
A “nicotine product” is any product that contains nicotine, including liquid nicotine intended for human
consumption, whether inhaled, chewed, absorbed, dissolved or ingested by any means.62 The definition
does not include a tobacco product under Florida law, a drug or device under federal law, or a product
that contains incidental nicotine.63
A “nicotine dispensing device” is any product that employs an electronic, chemical, or mechanical
means to produce vapor from a nicotine product, including, but not limited to, an electronic cigarette,
electronic cigar, electronic cigarillo, electronic pipe, or other similar device or product, any replacement
cartridge for such device, and any other container of nicotine in a solution or other form intended to be
used with or within an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or other
similar device or product.64
The sale or giving of nicotine products or nicotine dispensing devices to any person under 18 years of
age is prohibited and punishable as a second degree misdemeanor.65 It is a complete defense to a
violation if an underage person falsely misrepresented his or her age, the underage person had the
appearance to a prudent person to be 18 years of age or older, and the person carefully checked, and
relied on, the driver license or identification card of the recipient.66
58
S. 569.002(7), F.S.
59
S. 569.12, F.S.
60
S. 569.11(6), F.S.
61
Id.
62
S. 877.112(1)(b), F.S.
63
Id.
64
S. 877.112(1)(a), F.S.
65
Section 775.082, F.S., provides that a misdemeanor of the second degree is punishable by a term of imprisonment not to exceed 60
days. Section 775.083, F.S. provides that a misdemeanor of the second degree is punishable by a fine not to exceed $500.
66
S. 877.112(5), F.S.
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Persons under the age of 18 years are prohibited from knowingly possessing, directly or indirectly, any
nicotine products or nicotine dispensing devices, or misrepresenting their age or military service for
obtaining such products. Persons who violate this noncriminal violation are punishable as follows:67
A first violation of this prohibition is a non-criminal violation with a penalty of 16 hours of
community service or a $25 fine, and attendance at a school-approved anti-tobacco and
nicotine program, if locally available.
A second violation within 12 weeks of the first violation is punishable with a $25 fine.
A court may suspend or withhold issuance of a driver license for persons under 18 years of age
who fail to satisfies the penalties for knowingly possessing or misrepresenting their age in order
to purchase tobacco products.
o A court may suspend or withhold issuance of a drivers’ license for 30 days for a first
violation, and for 45 days for a second violation within 12 weeks of the first violation.
Eighty percent of civil penalties related to the unlawful possession or sale of nicotine products are
remitted to the Department of Revenue for transfer to the Department of Education for teacher training
and for research and evaluation to reduce and prevent the use of tobacco products, nicotine products,
or nicotine dispensing devices by children.68 The remaining 20 percent of civil penalties received by a
county court are retained by the clerk of the county court to cover administrative costs.69
Retail dealers of nicotine products and nicotine dispensing devices are required to post signs indicating
that the sale of nicotine products and nicotine dispensing devices to persons under 18 years of age is
prohibited and that proof of age is required for purchase. Retailers must also have instructional material
in the form of a calendar or similar format to assist in determining the age of the person attempting to
purchase a nicotine product or nicotine dispensing device.70
Retail Sale of Nicotine Products and Nicotine Dispensing Devices
The sale or delivery of nicotine products and nicotine dispensing devices are prohibited, except when
those products are under the direct control or line of sight of the retailer or the retailer’s agent or
employee in order to prevent persons under 18 years of age from purchasing or receiving such
products.71
Nicotine products or nicotine dispensing devices may not be sold or displayed by means of self-service
merchandising.72 Self-service merchandising means the open display of nicotine products or nicotine
dispensing devices for direct customer access and handling before the purchase of such product
without the assistance of the retailer or the retailer’s employee.
If a nicotine product or nicotine dispensing device is sold from a vending machine, the vending machine
must have:73
An operational lockout device which is under the control of the retailer or the retailer’s agent or
employee who directly regulates the sale of items through the machine by triggering the lockout
device to allow the dispensing of one nicotine product or nicotine dispensing device;
A mechanism on the lockout device to prevent the machine from functioning if the power source
for the lockout device fails or if the lockout device is disabled;
A mechanism to ensure that only one nicotine product or nicotine dispensing device is
dispensed at a time.
67
Ss. 877.112(6), and (7), F.S.
68
S. 877.112(9), F.S.
69
Id.
70
S. 877.112(10), F.S
71
Ss. 877.112(11) and (12), F.S.
72
Id.
73
Id.
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However, this does not apply to establishments that prohibit persons under the age of 18 on the
premises.74
Laws related to nicotine products and nicotine dispensing devices are different from tobacco laws in the
following ways:
Nicotine retailers are not required to obtain a retail tobacco products dealer permit from the
Division.
Nicotine retailers are not subject to inspection without a search warrant.
The Division does not have authority to discipline a nicotine retailer for violating any of the
regulations relating to the retail sale of nicotine products and nicotine dispensing devices.
The requirements for internet and remote sales of tobacco products do not apply to nicotine
products or nicotine dispensing devices.
There are no exemptions for the prohibition of the purchase and possession of nicotine products
and nicotine dispensing devices by persons under 18 years old, such as military service or
possession of such products as part of a person’s lawful scope employment.
Florida Clean Indoor Air ACT (FCIAA)
The FCIAA, implements Article X, Section 20 of the Florida Constitution, which prohibits a person from
smoking tobacco or vaping, in an enclosed indoor workplace, with certain exceptions.
The FCIAA also prohibits any person under the age of 18 from smoking tobacco or vaping within 1,000
feet of a public or private elementary, middle, or secondary school between the hours of 6 a.m. and
midnight. A violation of this prohibition is punishable by a maximum noncriminal civil penalty not to
exceed $25, or 50 hours of community service or, where available, successful completion of a school-
approved anti-tobacco “alternative to suspension” program.75
Senate Bill 810, Use of Tobacco Products and Nicotine Products – 2020 Legislative Session
In 2020, Governor DeSantis vetoed Senate Bill 810 of the 2020 Legislative Session, the bill included
the following:
Increased the minimum age from 18 years of age to 21 years of age to lawfully purchase and
possess tobacco products, nicotine products, and nicotine dispensing devices.
Prohibited smoking and vaping by any person under 21 years of age on or near school property.
Increased the age from 18 years of age to 21 years of age to obtain a cigarette permit required
to be a cigarette wholesaler, cigarette distributor, or a cigarette manufacturer.
Authorized DBPR to regulate nicotine products and nicotine dispensing devices in the same
manner as they do for tobacco products.
Required retailers of nicotine products and nicotine dispensing devices to obtain a permit from
DBPR.
Senate Bill 810 also included a provision, which is not in this bill, that prohibited the sale of flavored
liquid nicotine products (other than tobacco or menthol flavors), unless such products had a marketing
order from the FDA to permit the product to be sold.76
74
Id.; S. 877.112(1), F.S.
75
S. 386.212, F.S.
76
The Tobacco Control Act requires any manufacturer wishing to market a new tobacco product, including ENDS, that was not
commercially marketed on or before February 1, 2007, to obtain a marketing order from the FDA or an exemption from the marketing
order requirement from the FDA. The Tobacco Control Act contains a grandfather exemption from the marketing order requirement
for certain tobacco products. Manufacturers of tobacco products on the market on or before February 15, 2007, are not required to
have a marketing order for such products. Manufacturers of tobacco products that were on the market on or before August 8, 2016,
must have applied for a marketing order for such products by September 2020. 21 U.S.C. § 387j.
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Governor DeSantis stated his reasons for vetoing Senate Bill 810 were:77
“While originally conceived as a bill to raise the legal age to buy tobacco to 21, (which is
superfluous given this is already mandated by federal law) CS/CS/CS/SB 810 effectively
bans tobacco free vaping flavors used by hundreds of thousands of Floridians as a reduced-
risk alternative to cigarettes, which are more dangerous.
This legislation would almost assuredly lead more people to resume smoking cigarettes, and
it would drive others to the hazardous black market. The latter consequence is especially
significant because the much-publicized cases of lung injury associated with vaping in
recent years have been traced to illegal, or black market, vape cartridges containing THC,
not to the types of legal vaping products that this bill (CS/CS/CS/SB 810) would abolish.
Reducing the use of all nicotine-related products, including vaping, among our youth is an
important goal, but this will not be achieved by eliminating legal products for adults and by
devastating the small businesses who provide these adults with reduced risk alternatives to
cigarettes.”
Local Government Authority
The Florida Constitution grants local governments broad home rule authority. Specifically, non-charter
county governments may exercise those powers of self-government that are provided by general or
special law.78 Those counties operating under a county charter have all powers of self-government not
inconsistent with general law or special law approved by vote of the electors.79
Likewise, municipalities80 have those governmental, corporate, and proprietary powers that enable
them to conduct municipal government, perform their functions and provide services, and exercise any
power for municipal purposes, except as otherwise provided by law.81
Preemption
Local governments have broad authority to legislate on any matter that is not inconsistent with federal
or state law. A local government enactment may be inconsistent with state law if (1) the Legislature
"has preempted a particular subject area" or (2) the local enactment conflicts with a state statute.
Where state preemption applies, it precludes a local government from exercising authority in that
particular area.82
Florida law recognizes two types of preemption: express and implied. Express preemption requires a
specific legislative statement; it cannot be implied or inferred.83 Express preemption of a field by the
Legislature must be accomplished by clear language stating that intent.84 In cases where the
Legislature expressly or specifically preempts an area, the intent of the Legislature is readily
77
Veto letter of Ron DeSantis, Governor (Sept. 8, 2020) https://www.flgov.com/wp-content/uploads/2020/09/Transmittal-Letter-
09.08.2020.pdf (last visited Mar. 17, 2021).
78
Art. VIII, s. 1(f), Fla. Const.
79
Art. VIII, s. 1(g), Fla. Const.
80
A municipality is a local government entity created to perform functions and provide services for the particular benefit of the
population within the municipality, in addition to those provided by the county. The term “municipality” may be used interchangeably
with the terms “town,” “city,” and “village.”
81
Art. VIII, s. 2(b), Fla. Const. See also s. 166.021(1), F.S.
82
Wolf, The Effectiveness of Home Rule: A Preemption and Conflict Analysis, 83 Fla. B.J. 92 (June 2009), available at
https://www.floridabar.org/the-florida-bar-journal/the-effectiveness-of-home-rule-a-preemption-and-conflict-analysis/ (last visited
Mar. 22, 2021).
83
See City of Hollywood v. Mulligan, 934 So. 2d 1238, 1243 (Fla. 2006); Phantom of Clearwater, Inc. v. Pinellas County, 894 So. 2d
1011, 1018 (Fla. 2d DCA 2005), approved in Phantom of Brevard, Inc. v. Brevard County, 3 So. 3d 309 (Fla. 2008).
84
Mulligan, 934 So. 2d at 1243.
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ascertained.85 In cases determining the validity of ordinances enacted in the face of state preemption,
the effect has been to find such ordinances null and void.86
Florida Sunrise Act
A proposal for new regulation of a profession must meet the requirements of s. 11.62, F.S., the Sunrise
Act. In general, the act states that regulation should not occur unless it is:
Necessary to protect the public health, safety, or welfare from significant and discernible harm
or damage;
Exercised only to the extent necessary to prevent the harm; and
Limited so as not to unnecessarily restrict entry into the practice of the profession or adversely
affect public access to the professional services.
In determining whether to regulate a profession or occupation, the act requires the Legislature to
consider the following:
Whether the unregulated practice of the profession or occupation will substantially harm or
endanger the public health, safety, or welfare, and whether the potential for harm is
recognizable and not remote;
Whether the practice of the profession or occupation requires specialized skill or training and
whether that skill or training is readily measurable or quantifiable so that examination or training
requirements would reasonably assure initial and continuing professional or occupational ability;
Whether the regulation will have an unreasonable effect on job creation or job retention in the
state or will place unreasonable restrictions on the ability of individuals who seek to practice or
who are practicing a given profession or occupation to find employment;
Whether the public is or can be effectively protected by other means; and
Whether the overall cost-effectiveness and economic impact of the proposed regulation,
including the indirect costs to consumers, will be favorable.
The act requires proponents of legislation proposing new regulation to provide the following information,
upon request, to document the need for regulation:
The number of individuals or businesses that would be subject to the regulation;
The name of each association that represents members of the profession or occupation,
together with a copy of its codes of ethics or conduct;
Documentation of the nature and extent of the harm to the public caused by the unregulated
practice of the profession or occupation, including a description of any complaints that have
been lodged against persons who have practiced the profession or occupation in this state
during the preceding three years;
A list of states that regulate the profession or occupation, and the dates of enactment of each
law providing for such regulation and a copy of each law;
A list and description of state and federal laws that have been enacted to protect the public with
respect to the profession or occupation and a statement of the reasons why these laws have not
proven adequate to protect the public;
A description of the voluntary efforts made by members of the profession or occupation to
protect the public and a statement of the reasons why these efforts are not adequate to protect
the public;
A copy of any federal legislation mandating regulation;
An explanation of the reasons why other types of less restrictive regulation would not effectively
protect the public;
The cost, availability, and appropriateness of training and examination requirements;
85
Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So. 3d 880, 886 (Fla. 2010).
86
See, e.g., Nat’l Rifle Ass’n of Am., Inc. v. City of S. Miami, 812 So.2d 504 (Fla. 3d DCA 2002).
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DATE: 4/18/2021
The cost of regulation, including the indirect cost to consumers, and the method proposed to
finance the regulation;
The cost imposed on applicants or practitioners or on employers of applicants or practitioners as
a result of the regulation; and
The details of any previous efforts in this state to implement regulation of the profession or
occupation.
The act requires the agency proposed to have jurisdiction over the regulation to provide the
Legislature with the following information:
The resources required to implement and enforce the regulation;
The technical sufficiency of the proposal, including its consistency with the regulation of other
professions; and
Any alternatives that may result in less restrictive or more cost-effective regulation.
In determining whether to recommend regulation, the legislative committee reviewing the
proposal is directed to assess whether the proposed regulation is:
Justified based on the statutory criteria and the information provided by both the proponents of
regulation and the agency responsible for its implementation;
The least restrictive and most cost-effective regulatory scheme necessary to protect the public;
and
Technically sufficient and consistent with the regulation of other professions under existing law.
The act requires the agency proposed to have jurisdiction over the regulation to provide the Legislature
with the following information:
The resources required to implement and enforce the regulation;
The technical sufficiency of the proposal, including its consistency with the regulation of other
professions; and
Any alternatives that may result in less restrictive or more cost-effective regulation.
In determining whether to recommend regulation, the legislative committee reviewing the proposal is
directed to assess whether the proposed regulation is:
Justified based on the statutory criteria and the information provided by both the proponents of
regulation and the agency responsible for its implementation;
The least restrictive and most cost-effective regulatory scheme necessary to protect the public;
and
Technically sufficient and consistent with the regulation of other professions under existing law.
According to the sponsor of the bill, half of all middle school and high school students have used e-
cigarettes, and the lack of regulation of nicotine products and nicotine dispensing devices poses a
substantial harm to the public health, safety, or welfare. Specifically, the sponsor of the bill has
indicated that a regulatory framework for nicotine products and nicotine dispensing devices is needed
to ensure establishments that sell nicotine products and nicotine dispensing devices do not sell such
products to underage persons.87
In addition, the federal government has determined that the regulation of nicotine products and nicotine
dispensing devices is necessary for the protection of the health, safety, or welfare of citizens, and has
raised the age to purchase such products to 21 years of age.
Effect of Proposed Changes
Tobacco 21
87
See The Florida Channel, 3/24/2021 House Regulatory Reform Subcommittee, https://thefloridachannel.org/videos/3-24-21-house-
regulatory-reform-subcommittee/ (last visited Mar. 25, 2021).
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The bill increases the minimum age to lawfully purchase and knowingly possess tobacco products in
Florida from 18 years old to 21 years old, unless a person falls under a current law exemption to the
minimum age requirement.
Specifically the bill:
Prohibits the sale, delivery, bartering, furnishing, shipping, or giving tobacco products to
persons under the age of 21.
Provides that anyone under the age of 21 commits a noncriminal penalty for knowingly
possessing tobacco products.
Provides that anyone under the age of 21 who is cited for knowingly possessing tobacco
products must attend a school approved anti-tobacco program.
Provides that anyone who delivers tobacco products through a remote sale to a person under
age of 21 or a person under the age of 21 who knowingly violates any of the requirements for
remote sales of tobacco products and cigarettes commits a second degree misdemeanor
instead of a third degree misdemeanor, which is not provided for in current law.
Removes the following exemptions to the minimum age requirements that allow certain persons
under the minimum age to possess or purchase tobacco products:
o A person who has had his or her disability of nonage removed under ch. 743, F.S; and
o A person who is emancipated by a court of competent jurisdiction and released from
parental care and responsibility.
Provides that retailers must require proof of age from a purchaser of tobacco products unless
the purchaser appears to be 30 years of age or older, and similarly requires a delivery person to
require proof of age in similar circumstances.
Increases the age that a person is prohibited from smoking tobacco or vaping within 1,000 feet
of a school, from a person under 18 years of age to a person under 21 years of age.
Nicotine Products Regulation in Florida
The bill increases the minimum age to lawfully purchase and knowingly possess nicotine products and
nicotine dispensing devices in Florida from 18 years old to 21 years old, unless a person falls under an
exemption to the minimum age requirement including being in the military or acting in the scope of
lawful employment.
The bill also establishes state regulatory oversight for retailers of nicotine products and nicotine
dispensing devices. The regulations for the sale of nicotine products and nicotine dispensing devices
mirror the regulations for the sale of tobacco products. However, the bill does not impose a tax or
permit fee similar to tobacco products.
The bill includes regulations for the sale and delivery of nicotine products and nicotine dispensing
devices through the mail and over the Internet, which are similar to the regulations for tobacco
products, to ensure sales and deliveries are not to persons under age.
The bill creates a retail nicotine products dealer permit, which must be obtained from DBPR to be able
to sell nicotine products and nicotine dispensing devices, at retail, in this state. This permit however
does not allow for the sale of tobacco products. However, the bill does allow a tobacco products dealer
permit holder to sell nicotine products and nicotine dispensing devices, in addition to tobacco products.
The bill requires a person to obtain a retail nicotine products dealer permit for each place of business or
the premises where nicotine products or nicotine dispensing devices are to be sold face-to-face or
through a vending machine. The bill also requires a person who owns, leases, furnishes, or operates
vending machines that dispense nicotine products or nicotine dispensing devices to obtain a permit.
There is no fee for the permit.
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The Division may only issue permits to persons who are 18 years of age or older or corporations with
officers who are 18 years of age or older.88 The bill allows the place or premises covered by a permit to
be subject to inspection and search without a search warrant by the Division or its authorized
assistants, and by sheriffs, deputy sheriffs, or police officers, to determine compliance with
requirements for nicotine sales and dealing.
Anyone who deals nicotine products or nicotine dispensing devices at retail or allows a vending
machine on the premises without a permit is subject to a $500 fine.
The bill repeals s. 877.112, F.S., which currently regulates nicotine products in this state.
Requirements for Retail Nicotine Products Dealers
The bill requires nicotine product retailers to post a clear and conspicuous sign that the sale of nicotine
products is prohibited to persons under the age of 21 and that proof of age is required for purchase.
The Division is required to make the signs available to nicotine product retailers. Nicotine product
retailers must also have instructional material in the form of a calendar or similar format to assist in
determining the age of the person attempting to purchase a nicotine product.
Any person who fails to post a clear and conspicuous sign commits a second degree misdemeanor.
The bill prohibits the sale or delivery of nicotine products except when those products are under the
direct control or line of sight of the nicotine product retailer or the nicotine product retailer’s agent or
employee. The bill permits nicotine products to be sold from a vending machine if the vending machine
has:
An operational lockout device which is under the control of the nicotine product retailer or the
nicotine product retailer’s agent or employee who directly controls the sale of items through the
machine by triggering the lockout device to allow the dispensing of one nicotine product;
A mechanism on the lockout device to prevent the machine from functioning if the power source
for the lockout device fails or if the lockout device is disabled; and
A mechanism to ensure that only one nicotine product is dispensed at a time.
The bill also prohibits nicotine products from being sold or displayed by means of self-service
merchandising. Self-service merchandising means the open display of nicotine products or nicotine
dispensing devices for direct customer access and handling before the purchase of such product
without the assistance of the retailer or the retailer’s employee.89
The bill exempts establishments that prohibit people under the age of 21 on premises from such sales
requirements.
The bill requires retailers to require proof of age from a purchaser of a nicotine product or a nicotine
dispensing device unless the purchaser appears to be 30 years of age or older.
Mitigating Penalties for Underage Sales
If the Division determines a nicotine product retailer or a nicotine product retailer’s employee violated
the regulations for nicotine product and nicotine dispensing device retailers, the Division can suspend
or revoke the retailer’s permit or assess a fine up to $1,000 for each violation.
If the Division discovers a nicotine product retailer’s employee illegally sold tobacco products to a
person under the age of 21, the bill allows the Division to mitigate penalties if:
88
S. 569.003, F.S.
89
S. 877.112(1), F.S.
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The nicotine product retailer is qualified as a responsible retailer by establishing and
implementing specified practices designed to ensure that the nicotine product retailer’s
employees comply with Florida laws regulating the sale of nicotine products and nicotine
dispensing devices, such as employee training;
The nicotine product retailer had no knowledge of that employee’s violation at the time of the
violation and did not direct, approve, or participate in the violation; and
If the sale was made through a vending machine, the machine was equipped with an
operational lock-out device.
Nicotine Products and Persons under 21 Years of Age
The bill prohibits the sale, delivery, bartering, furnishing or giving of nicotine products or giving sample
to products to anyone under the age of 21. A violation of this prohibition is a second degree
misdemeanor. A second or subsequent violation within one year of the first violation is a first degree
misdemeanor.
A person charged with such a violation has a complete defense if:
The buyer falsely represented that he or she was 21 years of age or older;
The appearance of the buyer would indicate, to a prudent person, that the buyer was 21 years
of age or older; and
The buyer presented false identification upon which the person relied upon in good faith.
The bill prohibits persons under the age of 21 from knowingly possessing, directly or indirectly, any
nicotine products, or misrepresenting their age or military service for the purpose of obtaining such
products. Any person who violates such prohibition commits a non-criminal violation, punishable as
follows:
A first violation carries a penalty of 16 hours of community service or a $25 fine, and attendance
at a school-approved anti-tobacco and anti-nicotine program, if locally available.
A second violation within 12 weeks of the first violation is punishable with a $25 fine.
A court may suspend or withhold issuance of a driver’s license for anyone who has failed to
complete the community service, pay the fine, or attend the school-approved anti-tobacco and
anti-nicotine program.
o A court may suspend or withhold issuance of a drivers’ license for 30 days for a first
violation, and for 45 days for a second violation within 12 weeks of the first violation.
However, this does not include any person under the age of 21 who:
Is in the military reserve or on active duty in the Armed Forces of the United States; or
Is acting in his or her scope of lawful employment.
The bill requires 80 percent of all civil penalties received from violating prohibitions related to the
possession or sale of nicotine products by a county court to be remitted to the Department of Revenue
for transfer to the Department of Education for teacher training and for research and evaluation to
reduce and prevent the use of nicotine products and or nicotine products by children. The remaining 20
percent of civil penalties received by a county court is required to remain with the clerk of the county
court to cover administrative costs.
The bill authorizes the Division and any law enforcement officer to enforce these provisions. A local
government may also designate certain employees or agents as tobacco and nicotine product
enforcement officers. A tobacco and nicotine product enforcement officer or a correctional probation
officer may issue a citation to a person under the age of 21, whom the officer has reasonable cause to
believe is knowingly possessing tobacco products, nicotine products, or nicotine dispensing devices, or
is lying about their age or military service in order to obtain such products.90
90
S. 569.12, F.S.
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Mail Order, Internet, and Other Remote Sales of Nicotine Products in Florida
The bill creates requirements for the delivery of mail order, Internet, and other remote sales of nicotine
products and nicotine dispensing devices to consumers, referred to as “delivery sales.” Each person
who mails, ships, or otherwise delivers nicotine products or nicotine dispensing devices in connection
with an order for a delivery sale to a consumer must:
Include, as part of the shipping documents, in a clear and conspicuous manner, the following
statement: “Nicotine Products: Florida law prohibits shipping to individuals under 21 years of
age.”
Use a method of mailing, shipping, or delivery which obligates the delivery service to:
o Require the signature of a person 21 years of age or older who resides at the delivery
address and obtain proof of the legal minimum purchase age of the individual accepting
delivery, if the individual appears to be under 30 years of age.
o Require proof that the individual accepting delivery is either the addressee or the adult
designated by the addressee, in the form of a valid, government-issued identification
card bearing a photograph of the individual who signs to accept delivery of the shipping
container.
Before the first delivery to a consumer, the bill requires the person mailing, shipping, or delivering the
nicotine products to:
Obtain a certification from the person accepting delivery that includes reliable confirmation that
the person accepting the delivery is 21 years of age or older, and a written statement under
penalty of perjury providing the person’s date of birth, address, and confirmation that the person
wants to accept the delivery;
Make a good faith effort to verify the information in the certification by checking the information
against a commercially available database or obtaining a photocopy of the person’s ID;
Provide the person accepting the delivery a notice stating nicotine products are illegal for
underage persons and sales of such products are restricted to individuals who provide verifiable
proof of legal age to purchase;
Receive payment by a credit card or debit card in the name of the person accepting the delivery
or a personal or company check of the person accepting the delivery, if the order is made in
accordance with an advertisement on the Internet;
Submit to the credit card company necessary information so that the words “nicotine product”
appear on the person’s credit card statement when a purchase is made using a credit card; and
Make a phone call to the person accepting the delivery to confirm the order before shipping the
order.
The bill requires a person who accepts an order for a delivery sale of nicotine products or nicotine
dispensing devices and delivers such products without using a delivery service to comply with all of the
delivery service requirements listed above.
The bill imposes a penalty for any person, who is 21 years or older, who knowingly violates the delivery
sale’s requirements as a misdemeanor of the second degree.
The bill requires the Division to submit an annual report, by December 31st, to the Governor and
Legislature on the progress of implementing and enforcing the above requirements, including:
The number and results of compliance visits by the Division;
The number of violations for failure of a retailer to hold a valid permit;
The number of violations for selling nicotine products and nicotine dispensing devices to anyone
under the age of 21 and the results of administrative hearings on such violations; and
The number of people under the age of 21 cited, including sanctions imposed as a result of
such citation, for misrepresenting their age, purchasing nicotine products or nicotine dispensing
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devices underage, and misrepresenting military service for the purpose of obtaining such
products underage.
The bill changes the title of ch. 569, F.S., from “Tobacco Products” to “Tobacco and Nicotine Products.”
The bill directs the Division of Law Revision to create parts I and II of ch. 569, F.S., entitled “Tobacco
Products” and “Nicotine Products,” respectively.
Preemption
The bill preempts to the state the establishment of the minimum age to purchase or possess tobacco
products, nicotine products, and nicotine dispensing devices, and the regulation of the marketing, sale,
and delivery of such products.
B. SECTION DIRECTORY:
Section 1. Amending s. 210.095, F.S., increasing the age of a person who may receive tobacco
products that have been shipped and violations thereof.
Section 2. Amending s. 386.212, F.S., increasing the age of person who may smoke or vape within
a certain distance of a school.
Section 3. Renames ch. 569, F.S., as "Tobacco and Nicotine Products."
Section 4. Directs the Division of Law Revision to create part I of ch. 569, F.S., entitled “Tobacco
Products” and to create part II of ch. 569, F.S., entitled “Nicotine Products.”
Section 5. Amending s. 569.002, F.S., relating to definitions.
Section 6. Amending s. 569.003, F.S., relating to tobacco products dealer permits.
Section 7. Amending s. 569.004, F.S., relating to consent to inspection and search without warrant.
Section 8. Amending s. 569.006, F.S., relating to retail tobacco products dealers; administrative
penalties.
Section 9. Amending s. 569.007, F.S., relating to the sale or delivery of tobacco products.
Section 10. Amending s. 569.0075, F.S., relating to the prohibition of giving samples of tobacco
products.
Section 11. Amending s. 569.008, F.S., relating to responsible retail tobacco products dealers.
Section 12. Amending s. 569.009, F.S., relating to rulemaking authority.
Section 13. Amending s. 569.101, F.S., increasing the age of a person who may purchase tobacco
products.
Section 14. Amending s. 569.11, F.S., increasing the age of a person who may possess tobacco
products.
Section 15. Amending s. 569.12, F.S., relating to jurisdiction; tobacco product enforcement officers
or agents; enforcement.
Section 16. Amending s. 569.14, F.S., relating to posting of a sign stating that the sale of tobacco
products to persons under 18 years of age is unlawful; enforcement; penalty.
Section 17. Amending s. 569.19, F.S., relating to annual report.
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Section 18. Creating s. 569.24, F.S., preempting the establishment of the minimum age for the sale
and delivery of tobacco and nicotine products and the marketing of such products to the
state.
Section 19. Creating s. 569.31, F.S., relating to definitions.
Section 20. Creating s. 569.32, F.S., requiring retailers of nicotine products to obtain a retail nicotine
products dealer permits.
Section 21. Creating s. 569.33, F.S., requiring retail nicotine products dealer permit holders to
consent to certain inspections.
Section 22. Creating s. 569.34, F.S., creating penalties for operating without a retail nicotine
products dealer permit.
Section 23. Creating s. 569.35, F.S., creating administrative penalties for retail nicotine products
dealers.
Section 24. Creating s. 569.37, F.S., creating regulations for the retail sale of nicotine products.
Section 25. Creating s. 569.38, F.S., creating prohibitions for giving samples of nicotine products.
Section 26. Creating s. 569.381, F.S., creating responsible retail nicotine products dealer
qualifications.
Section 27. Creating s. 569.39, F.S., granting rulemaking authority to DBPR.
Section 28. Creating s. 569.41, F.S., providing penalties for the sale of nicotine products to underage
persons.
Section 29. Creating s. 569.42, F.S., providing penalties for underage persons possessing nicotine
products.
Section 30. Creating s. 569.43, F.S., requiring nicotine product retailers to post certain signs.
Section 31. Creating s. 569.44, F.S., requiring DBPR to perform an annual report.
Section 32. Creating s. 569.45, F.S., creating regulations for the delivery of nicotine products and
penalties for violations of such regulations.
Section 33. Repeals s. 877.112, F.S.
Section 34. Provides an effective date of December 1, 2021.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
On April 12, 2019, the Revenue Estimating Impact Conference reviewed HB 7119 of the 2019
Florida Legislative Session. HB 7119 also increased the minimum age to purchase tobacco and
nicotine products to 21 years of age. The Revenue Estimating Impact Conference estimated it will
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result in a reduction in Tobacco Tax and Surcharge collections. The following chart shows the
impact over the 2019-20 through 2023-24 fiscal years (in millions):91
However, as previously discussed, federal law was amended in 2019 to increase the age to
purchase tobacco and nicotine products to 21 and became effective January 15, 2020. The fiscal
impact to the state and any reduction in revenue is currently taking place to the extent tobacco and
nicotine sellers are currently complying with federal law. The total impact for Fiscal Year 2021-22 is
indeterminate but likely less than the 2019 estimates above as tobacco and nicotine sellers comply
with federal law.
The Department of Revenue (DOR) may see an increase in revenue as the bill allows 80 percent of
civil penalties received by a county court relating to enforcement of underage possession and
purchasing of nicotine products to be remitted to DOR. The impact is indeterminate.
There may be an indeterminate positive fiscal impact on the state due to a possible reduction in
treatment of smoking and vaping related diseases and illnesses if these persons received services
from a state program (e.g., Medicaid).
2. Expenditures:
The bill may have a significant negative fiscal impact on DBPR. The bill creates new duties of the
Division relating to the regulation and enforcement of nicotine products and sales which will
increase current workload on Division employees. The impact is indeterminate because the number
of current retailers who sell nicotine products is unknown as they are not currently regulated by any
state agency. If the Division determines additional resources are required to enforce provisions
related to nicotine products and sales, a request for such resources can be made through the
Legislative Budget Request process for Fiscal Year 2022-23.
The bill requires the Division to create a new application for a retail nicotine products dealer permit,
and issue such permits, the cost of which may be able to be absorbed within current resources.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
The clerk of the county court may see an increase in revenue as the bill allows twenty percent of
civil penalties received by a county court relating to enforcement of underage possession and
purchasing of nicotine products to remain with the clerk. The impact is indeterminate.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
91
Office of Economic & Demographic Research, April 12, 2019 Revenue Estimating Conference
(http://edr.state.fl.us/Content/conferences/revenueimpact/archives/2019/_pdf/Impact0412.pdf). (last visited Mar. 19, 2021). Note:
There is a possible negative impact on sales tax collected on nicotine dispensing devices. The EDR analysis only focuses on the
impact on Tobacco Tax and Surcharge.
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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:
The bill provides sufficient rule-making authority for DBPR to implement the provisions of this bill.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On March 24, 2021, the Regulatory Reform Subcommittee adopted a proposed committee substitute and
one amendment and reported the bill favorably as a committee substitute. The PCS and the amendment
differed from HB 987 in the following ways:
Removes the provision adding nicotine products and nicotine dispensing devices to the definition of
tobacco products for purposes of regulation by DBPR.
Removes the provision repealing a retailer’s ability to sell tobacco products, nicotine products, and
nicotine dispensing devices from a vending machine in certain circumstances.
Creates a separate part of ch. 569, F.S., for the regulation of nicotine products and nicotine
dispensing devices, which mirrors the regulation of tobacco products and requires DBPR to
regulate nicotine products and nicotine dispensing devices.
Maintains the exemption to the minimum age to purchase and possess tobacco products for people
in the military and people handling such products as a part of their lawful employment, and provides
that such exemptions also apply to nicotine products and nicotine dispensing devices.
Creates regulations for the mail order, internet order, and delivery of nicotine dispensing devices
and nicotine products that are similar to the regulations for tobacco products.
Does not increase the minimum age to obtain a cigarette permit or a tobacco products dealer
permit, and provides that the minimum age to obtain a nicotine products dealer permit is 18 years of
age.
Provides that a vending machine used for the sale of tobacco products, nicotine products, or
nicotine dispensing devices must be equipped with a lockout device, unless it is located in an
establishment that only allows persons who are 21 years of age or older.
Preempts to the state the establishment of the minimum age to purchase or possess tobacco
products, nicotine products, and nicotine dispensing devices, and the regulation of the marketing,
sale, and delivery of such products.
Changes the criminal penalty for a person who delivers tobacco products for a delivery service to a
person who is not an adult from a third degree-misdemeanor, which does not exist, to a second-
degree misdemeanor.
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On April 7, 2021, the State Administration & Technology Appropriations Subcommittee adopted one
amendment and reported the bill favorably as a committee substitute. The amendment modified the
effective date from October 1, 2021, to December 1, 2021.
The staff analysis is drafted to the committee substitute as passed by the State Administration &
Technology Appropriations 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/CS/HB 987 2021
1 A bill to be entitled
2 An act relating to tobacco and nicotine products;
3 amending s. 210.095, F.S.; deleting a definition;
4 revising age restrictions relating to mail order,
5 Internet, and remote sales of tobacco products;
6 amending s. 386.212, F.S.; revising age restrictions
7 relating to smoking and vaping near school property;
8 renaming ch. 569, F.S.; providing directives to the
9 Division of Law Revision; amending s. 569.002, F.S.;
10 revising and providing definitions; amending ss.
11 569.003, 569.004, 569.006, 569.0075, 569.008, 569.009,
12 569.101, 569.11, and 569.19, F.S.; conforming
13 provisions to changes made by the act; amending s.
14 569.007, F.S.; requiring verification of the age of
15 persons purchasing tobacco products under certain
16 circumstances; conforming provisions to changes made
17 by the act; amending s. 569.12, F.S.; expanding
18 authority of tobacco product enforcement officers to
19 include nicotine products; amending s. 569.14, F.S.;
20 revising requirements for certain signage; creating s.
21 569.24, F.S.; preempting the establishment of the
22 minimum age for purchasing or possessing tobacco
23 products or nicotine products and the regulation of
24 the marketing, sale, or delivery of such products to
25 the state; creating s. 569.31, F.S.; providing
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26 definitions; creating s. 569.32, F.S.; requiring
27 retail nicotine products dealers to obtain a permit;
28 providing requirements for such permit; creating s.
29 569.33, F.S.; providing for consent to inspection and
30 search without warrant; creating s. 569.34, F.S.;
31 prohibiting certain persons, firms, associations, or
32 corporations from operating without a retail nicotine
33 products dealer permit; providing civil penalties;
34 creating s. 569.35, F.S.; providing administrative
35 penalties for retail nicotine products dealers under
36 certain circumstances; creating s. 569.37, F.S.;
37 providing restrictions on the sale or delivery of
38 nicotine products; creating s. 569.38, F.S.;
39 prohibiting giving nicotine product samples to certain
40 persons; creating s. 569.381, F.S.; providing
41 legislative intent; providing qualifications for
42 responsible retail nicotine products dealers;
43 authorizing the Division of Alcoholic Beverages and
44 Tobacco within the Department of Business and
45 Professional Regulation to mitigate administrative
46 penalties under certain circumstances; requiring the
47 division to develop and make available a nicotine
48 products training program; requiring nicotine products
49 dealers to exercise diligence in the management and
50 supervision of their premises and the supervision and
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51 training of certain persons; creating s. 569.39, F.S.;
52 requiring the division to adopt rules; creating s.
53 569.41, F.S.; prohibiting the selling, delivering,
54 bartering, furnishing, or giving of nicotine products
55 to certain persons; providing criminal penalties;
56 providing a defense; creating s. 569.42, F.S.;
57 prohibiting possessing, misrepresenting age or
58 military service to purchase, and purchasing nicotine
59 products by certain persons; providing civil
60 penalties; authorizing the Department of Highway
61 Safety and Motor Vehicles to withhold issuance of or
62 suspend a driver license or driving privileges under
63 certain circumstances; providing for the use of fees
64 collected; creating s. 569.43, F.S.; providing signage
65 requirements; providing for enforcement; providing
66 criminal penalties; creating s. 569.44, F.S.;
67 requiring the division to provide an annual report
68 containing specified information to the Governor and
69 Legislature; creating s. 569.45, F.S.; providing
70 definitions; providing requirements for mail order,
71 Internet, and remote sales of nicotine products;
72 providing applicability; providing criminal penalties;
73 providing for a cause of action to prevent or restrain
74 specified violations; repealing s. 877.112, F.S.,
75 relating to nicotine products and nicotine dispensing
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76 devices; providing an effective date.
77
78 Be It Enacted by the Legislature of the State of Florida:
79
80 Section 1. Paragraphs (b) through (j) of subsection (1) of
81 section 210.095, Florida Statutes, are redesignated as
82 paragraphs (a) through (i), respectively, and present paragraph
83 (a) of subsection (1), paragraphs (a) and (c) of subsection (2),
84 paragraph (a) of subsection (3), paragraph (a) of subsection
85 (4), paragraphs (a) and (b) of subsection (5), and paragraphs
86 (a), (b), (e), and (g) of subsection (8) of that section are
87 amended to read:
88 210.095 Mail order, Internet, and remote sales of tobacco
89 products; age verification.—
90 (1) For purposes of this section, the term:
91 (a) "Adult" means an individual who is at least of the
92 legal minimum purchase age for tobacco products.
93 (2)(a) A sale of tobacco products constituting a delivery
94 sale pursuant to paragraph (1)(b) (1)(c) is a delivery sale
95 regardless of whether the person accepting the order for the
96 delivery sale is located inside or outside this state.
97 (c) A person may not make a delivery sale of tobacco
98 products to any individual who is not 21 years of age or older
99 an adult.
100 (3) A person may not mail, ship, or otherwise deliver
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101 tobacco products in connection with an order for a delivery sale
102 unless, before the first delivery to the consumer, the person
103 accepting the order for the delivery sale:
104 (a) Obtains from the individual submitting the order a
105 certification that includes:
106 1. Reliable confirmation that the individual is 21 years
107 of age or older an adult; and
108 2. A statement signed by the individual in writing and
109 under penalty of perjury which:
110 a. Certifies the address and date of birth of the
111 individual; and
112 b. Confirms that the individual wants to receive delivery
113 sales from a tobacco company and understands that, under the
114 laws of this state, the following actions are illegal:
115 (I) Signing another individual's name to the
116 certification;
117 (II) Selling tobacco products to individuals under the
118 legal minimum purchase age; and
119 (III) Purchasing tobacco products, if the person making
120 the purchase is under the legal minimum purchase age.
121
122 In addition to the requirements of this subsection, a person
123 accepting an order for a delivery sale may request that a
124 consumer provide an electronic mail address.
125 (4) The notice described in paragraph (3)(c) must include
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126 prominent and clearly legible statements that sales of tobacco
127 products are:
128 (a) Illegal if made to individuals who are not 21 years of
129 age or older adults.
130
131 The notice must include an explanation of how each tax has been,
132 or is to be, paid with respect to the delivery sale.
133 (5) Each person who mails, ships, or otherwise delivers
134 tobacco products in connection with an order for a delivery sale
135 must:
136 (a) Include as part of the shipping documents, in a clear
137 and conspicuous manner, the following statement: "Tobacco
138 Products: Florida law prohibits shipping to individuals under 21
139 18 years of age and requires the payment of all applicable
140 taxes."
141 (b) Use a method of mailing, shipping, or delivery which
142 obligates the delivery service to require:
143 1. The individual submitting the order for the delivery
144 sale or another individual who is 21 years of age or older adult
145 who resides at the individual's address to sign his or her name
146 to accept delivery of the shipping container. Proof of the legal
147 minimum purchase age of the individual accepting delivery is
148 required only if the individual appears to be under 30 27 years
149 of age.
150 2. Proof that the individual is either the addressee or
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151 the individual who is 21 years of age or older adult designated
152 by the addressee, in the form of a valid, government-issued
153 identification card bearing a photograph of the individual who
154 signs to accept delivery of the shipping container.
155
156 If the person accepting a purchase order for a delivery sale
157 delivers the tobacco products without using a delivery service,
158 the person must comply with all of the requirements of this
159 section which apply to a delivery service. Any failure to comply
160 with a requirement of this section constitutes a violation
161 thereof.
162 (8)(a) Except as otherwise provided in this section, a
163 violation of this section by a person other than an individual
164 who is not 21 years of age or older an adult is a misdemeanor of
165 the first degree, punishable as provided in s. 775.082 or s.
166 775.083, and:
167 1. For a first violation of this section, the person shall
168 be fined $1,000 or five times the retail value of the tobacco
169 products involved in the violation, whichever is greater.
170 2. For a second or subsequent violation of this section,
171 the person shall be fined $5,000 or five times the retail value
172 of the tobacco products involved in the violation, whichever is
173 greater.
174 (b) A person who is 21 years of age or older an adult and
175 knowingly submits a false certification under subsection (3)
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176 commits a misdemeanor of the first degree, punishable as
177 provided in s. 775.082 or s. 775.083. For each offense, the
178 person shall be fined $10,000 or five times the retail value of
179 the tobacco products involved in the violation, whichever is
180 greater.
181 (e) A person who, in connection with a delivery sale,
182 delivers tobacco products on behalf of a delivery service to an
183 individual who is not 21 years of age or older an adult commits
184 a misdemeanor of the second third degree, punishable as provided
185 in s. 775.082 or s. 775.083.
186 (g) An individual who is not 21 years of age or older an
187 adult and who knowingly violates any provision of this section
188 commits a misdemeanor of the second third degree, punishable as
189 provided in s. 775.082 or s. 775.083.
190 Section 2. Subsection (1) of section 386.212, Florida
191 Statutes, is amended to read:
192 386.212 Smoking and vaping prohibited near school
193 property; penalty.—
194 (1) It is unlawful for any person under 21 18 years of age
195 to smoke tobacco or vape in, on, or within 1,000 feet of the
196 real property comprising a public or private elementary, middle,
197 or secondary school between the hours of 6 a.m. and midnight.
198 This section does not apply to any person occupying a moving
199 vehicle or within a private residence.
200 Section 3. Chapter 569, Florida Statutes, entitled
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201 "Tobacco Products" is renamed "Tobacco and Nicotine Products."
202 Section 4. The Division of Law Revision is directed to:
203 (1) Create part I of chapter 569, Florida Statutes,
204 consisting of ss. 569.002-569.24, Florida Statutes, to be
205 entitled "Tobacco Products."
206 (2) Create part II of chapter 569, Florida Statutes,
207 consisting of ss. 569.31-569.45, Florida Statutes, to be
208 entitled "Nicotine Products."
209 Section 5. Section 569.002, Florida Statutes, is amended
210 to read:
211 569.002 Definitions.—As used in this part chapter, the
212 term:
213 (1)(7) "Any person under the age of 21 18" does not
214 include any person under the age of 21 18 who:
215 (a) Has had his or her disability of nonage removed under
216 chapter 743;
217 (a)(b) Is in the military reserve or on active duty in the
218 Armed Forces of the United States; or
219 (c) Is otherwise emancipated by a court of competent
220 jurisdiction and released from parental care and responsibility;
221 or
222 (b)(d) Is acting in his or her scope of lawful employment
223 with an entity licensed under the provisions of chapter 210 or
224 this part chapter.
225 (2)(1) "Dealer" is synonymous with the term "retail
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226 tobacco products dealer."
227 (3)(2) "Division" means the Division of Alcoholic
228 Beverages and Tobacco of the Department of Business and
229 Professional Regulation.
230 (4) "Nicotine dispensing device" has the same meaning as
231 in s. 569.31.
232 (5) "Nicotine product" has the same meaning as in s.
233 569.31.
234 (6)(3) "Permit" is synonymous with the term "retail
235 tobacco products dealer permit."
236 (7)(4) "Retail tobacco products dealer" means the holder
237 of a retail tobacco products dealer permit.
238 (8)(5) "Retail tobacco products dealer permit" means a
239 permit issued by the division pursuant to s. 569.003.
240 (9)(6) "Tobacco products" includes loose tobacco leaves,
241 and products made from tobacco leaves, in whole or in part, and
242 cigarette wrappers, which can be used for smoking, sniffing, or
243 chewing.
244 Section 6. Paragraph (c) of subsection (1) of section
245 569.003, Florida Statutes, is amended to read:
246 569.003 Retail tobacco products dealer permits;
247 application; qualifications; fees; renewal; duplicates.—
248 (1)
249 (c) Permits shall be issued annually, upon payment of the
250 annual permit fee prescribed by the division. The division shall
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251 fix the fee in an amount sufficient to meet the costs incurred
252 by it in carrying out its permitting, enforcement, and
253 administrative responsibilities under this part chapter, but the
254 fee may not exceed $50. The proceeds of the fee shall be
255 deposited into the Alcoholic Beverage and Tobacco Trust Fund.
256 Section 7. Section 569.004, Florida Statutes, is amended
257 to read:
258 569.004 Consent to inspection and search without warrant.—
259 An applicant for a permit, by accepting the permit when issued,
260 agrees that the place or premises covered by the permit is
261 subject to inspection and search without a search warrant by the
262 division or its authorized assistants, and by sheriffs, deputy
263 sheriffs, or police officers, to determine compliance with this
264 chapter, including part II of this chapter if the applicant
265 deals, at retail, in nicotine products within the state or
266 allows a nicotine products vending machine to be located on its
267 premises within the state.
268 Section 8. Section 569.006, Florida Statutes, is amended
269 to read:
270 569.006 Retail tobacco products dealers; administrative
271 penalties.—The division may suspend or revoke the permit of the
272 dealer upon sufficient cause appearing of the violation of any
273 of the provisions of this chapter, including part II of this
274 chapter if the dealer deals, at retail, in nicotine products
275 within the state or allows a nicotine products vending machine
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276 to be located on its premises within the state, by a dealer or
277 by a dealer's agent or employee. The division may also assess
278 and accept administrative fines of up to $1,000 against a dealer
279 for each violation. The division shall deposit all fines
280 collected into the General Revenue Fund as collected. An order
281 imposing an administrative fine becomes effective 15 days after
282 the date of the order. The division may suspend the imposition
283 of a penalty against a dealer, conditioned upon the dealer's
284 compliance with terms the division considers appropriate.
285 Section 9. Subsections (1), (2), and (4) of section
286 569.007, Florida Statutes, are amended to read:
287 569.007 Sale or delivery of tobacco products;
288 restrictions.—
289 (1) In order to prevent persons under 21 18 years of age
290 from purchasing or receiving tobacco products, the sale or
291 delivery of tobacco products is prohibited, except:
292 (a) When under the direct control or line of sight of the
293 dealer or the dealer's agent or employee; or
294 (b) Sales from a vending machine are prohibited under the
295 provisions of paragraph (1)(a) and are only permissible from a
296 machine that is equipped with an operational lockout device
297 which is under the control of the dealer or the dealer's agent
298 or employee who directly regulates the sale of items through the
299 machine by triggering the lockout device to allow the dispensing
300 of one tobacco product. The lockout device must include a
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301 mechanism to prevent the machine from functioning if the power
302 source for the lockout device fails or if the lockout device is
303 disabled, and a mechanism to ensure that only one tobacco
304 product is dispensed at a time.
305 (2) The provisions of subsection (1) shall not apply to an
306 establishment that prohibits persons under 21 18 years of age on
307 the licensed premises.
308 (4) A dealer or a dealer's agent or employee must may
309 require proof of age of a purchaser of a tobacco product before
310 selling the product to that person, unless the purchaser appears
311 to be 30 years of age or older.
312 Section 10. Section 569.0075, Florida Statutes, is amended
313 to read:
314 569.0075 Gift of sample tobacco products prohibited.—The
315 gift of sample tobacco products to any person under the age of
316 21 18 by an entity licensed or permitted under the provisions of
317 chapter 210 or this part chapter, or by an employee of such
318 entity, is prohibited and is punishable as provided in s.
319 569.101.
320 Section 11. Subsections (1), (2), and (3) of section
321 569.008, Florida Statutes, are amended to read:
322 569.008 Responsible retail tobacco products dealers;
323 qualifications; mitigation of disciplinary penalties; diligent
324 management and supervision; presumption.—
325 (1) The Legislature intends to prevent the sale of tobacco
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326 products to persons under 21 18 years of age and to encourage
327 retail tobacco products dealers to comply with responsible
328 practices in accordance with this section.
329 (2) To qualify as a responsible retail tobacco products
330 dealer, the dealer must establish and implement procedures
331 designed to ensure that the dealer's employees comply with the
332 provisions of this part chapter. The dealer must provide a
333 training program for the dealer's employees which addresses the
334 use and sale of tobacco products and which includes at least the
335 following topics:
336 (a) Laws covering the sale of tobacco products.
337 (b) Methods of recognizing and handling customers under 21
338 18 years of age.
339 (c) Procedures for proper examination of identification
340 cards in order to verify that customers are not under 21 18
341 years of age.
342 (d) The use of the age audit identification function on
343 electronic point-of-sale equipment, where available.
344 (3) In determining penalties under s. 569.006, the
345 division may mitigate penalties imposed against a dealer because
346 of an employee's illegal sale of a tobacco product to a person
347 under 21 18 years of age if the following conditions are met:
348 (a) The dealer is qualified as a responsible dealer under
349 this section.
350 (b) The dealer provided the training program required
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351 under subsection (2) to that employee before the illegal sale
352 occurred.
353 (c) The dealer had no knowledge of that employee's
354 violation at the time of the violation and did not direct,
355 approve, or participate in the violation.
356 (d) If the sale was made through a vending machine, the
357 machine was equipped with an operational lock-out device.
358 Section 12. Section 569.009, Florida Statutes, is amended
359 to read:
360 569.009 Rulemaking authority.—The division shall adopt any
361 rules necessary to administer and enforce the provisions of this
362 part chapter.
363 Section 13. Section 569.101, Florida Statutes, is amended
364 to read:
365 569.101 Selling, delivering, bartering, furnishing, or
366 giving tobacco products to persons under 21 18 years of age;
367 criminal penalties; defense.—
368 (1) It is unlawful to sell, deliver, barter, furnish, or
369 give, directly or indirectly, to any person who is under 21 18
370 years of age, any tobacco product.
371 (2) Any person who violates subsection (1) commits a
372 misdemeanor of the second degree, punishable as provided in s.
373 775.082 or s. 775.083. However, any person who violates
374 subsection (1) for a second or subsequent time within 1 year
375 after of the first violation, commits a misdemeanor of the first
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376 degree, punishable as provided in s. 775.082 or s. 775.083.
377 (3) A person charged with a violation of subsection (1)
378 has a complete defense if, at the time the tobacco product was
379 sold, delivered, bartered, furnished, or given:
380 (a) The buyer or recipient falsely evidenced that she or
381 he was 21 18 years of age or older;
382 (b) The appearance of the buyer or recipient was such that
383 a prudent person would believe the buyer or recipient to be 21
384 18 years of age or older; and
385 (c) Such person carefully checked a driver license or an
386 identification card issued by this state or another state of the
387 United States, a passport, or a United States Armed Services
388 identification card presented by the buyer or recipient and
389 acted in good faith and in reliance upon the representation and
390 appearance of the buyer or recipient in the belief that the
391 buyer or recipient was 21 18 years of age or older.
392 Section 14. Section 569.11, Florida Statutes, is amended
393 to read:
394 569.11 Possession, misrepresenting age or military service
395 to purchase, and purchase of tobacco products by persons under
396 21 18 years of age prohibited; penalties; jurisdiction;
397 disposition of fines.—
398 (1) It is unlawful for any person under 21 18 years of age
399 to knowingly possess any tobacco product. Any person under 21 18
400 years of age who violates this subsection commits a noncriminal
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401 violation as provided in s. 775.08(3), punishable by:
402 (a) For a first violation, 16 hours of community service
403 or, instead of community service, a $25 fine. In addition, the
404 person must attend a school-approved anti-tobacco program, if
405 locally available; or
406 (b) For a second or subsequent violation within 12 weeks
407 after the first violation, a $25 fine.
408
409 Any second or subsequent violation not within the 12-week period
410 after the first violation is punishable as provided for a first
411 violation.
412 (2) It is unlawful for any person under 21 18 years of age
413 to misrepresent his or her age or military service for the
414 purpose of inducing a dealer or an agent or employee of the
415 dealer to sell, give, barter, furnish, or deliver any tobacco
416 product, or to purchase, or attempt to purchase, any tobacco
417 product from a person or a vending machine. Any person under 21
418 18 years of age who violates this subsection commits a
419 noncriminal violation as provided in s. 775.08(3), punishable
420 by:
421 (a) For a first violation, 16 hours of community service
422 or, instead of community service, a $25 fine and, in addition,
423 the person must attend a school-approved anti-tobacco program,
424 if available; or
425 (b) For a second or subsequent violation within 12 weeks
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426 after the first violation, a $25 fine.
427
428 Any second or subsequent violation not within the 12-week period
429 after the first violation is punishable as provided for a first
430 violation.
431 (3) Any person under 21 18 years of age cited for
432 committing a noncriminal violation under this section must sign
433 and accept a civil citation indicating a promise to appear
434 before the county court or comply with the requirement for
435 paying the fine and must attend a school-approved anti-tobacco
436 program, if locally available. If a fine is assessed for a
437 violation of this section, the fine must be paid within 30 days
438 after the date of the citation or, if a court appearance is
439 mandatory, within 30 days after the date of the hearing.
440 (4) A person charged with a noncriminal violation under
441 this section must appear before the county court or comply with
442 the requirement for paying the fine. The court, after a hearing,
443 shall make a determination as to whether the noncriminal
444 violation was committed. If the court finds the violation was
445 committed, it shall impose an appropriate penalty as specified
446 in subsection (1) or subsection (2). A person who participates
447 in community service shall be considered an employee of the
448 state for the purpose of chapter 440, for the duration of such
449 service.
450 (5)(a) If a person under 21 18 years of age is found by
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451 the court to have committed a noncriminal violation under this
452 section and that person has failed to complete community
453 service, pay the fine as required by paragraph (1)(a) or
454 paragraph (2)(a), or attend a school-approved anti-tobacco
455 program, if locally available, the court may direct the
456 Department of Highway Safety and Motor Vehicles to withhold
457 issuance of or suspend the driver license or driving privilege
458 of that person for a period of 30 consecutive days.
459 (b) If a person under 21 18 years of age is found by the
460 court to have committed a noncriminal violation under this
461 section and that person has failed to pay the applicable fine as
462 required by paragraph (1)(b) or paragraph (2)(b), the court may
463 direct the Department of Highway Safety and Motor Vehicles to
464 withhold issuance of or suspend the driver license or driving
465 privilege of that person for a period of 45 consecutive days.
466 (6) Eighty percent of all civil penalties received by a
467 county court pursuant to this section shall be remitted by the
468 clerk of the court to the Department of Revenue for transfer to
469 the Department of Education to provide for teacher training and
470 for research and evaluation to reduce and prevent the use of
471 tobacco products by children. The remaining 20 percent of civil
472 penalties received by a county court pursuant to this section
473 shall remain with the clerk of the county court to cover
474 administrative costs.
475 Section 15. Section 569.12, Florida Statutes, is amended
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476 to read:
477 569.12 Jurisdiction; tobacco product and nicotine product
478 enforcement officers or agents; enforcement.—
479 (1) In addition to the Division of Alcoholic Beverages and
480 Tobacco of the Department of Business and Professional
481 Regulation, any law enforcement officer certified under s.
482 943.10(1), (6), or (8) shall enforce the provisions of this
483 chapter.
484 (2)(a) A county or municipality may designate certain of
485 its employees or agents as tobacco product and nicotine product
486 enforcement officers. The training and qualifications of the
487 employees or agents for such designation shall be determined by
488 the county or the municipality. Nothing in this section shall be
489 construed to permit the carrying of firearms or other weapons by
490 a tobacco product and nicotine product enforcement agent, nor
491 does designation as a tobacco product and nicotine product
492 enforcement officer provide the employee or agent with the power
493 of arrest or subject the employee or agent to the provisions of
494 ss. 943.085-943.255. Nothing in this section amends, alters, or
495 contravenes the provisions of any state-administered retirement
496 system or any state-supported retirement system established by
497 general law.
498 (b) A tobacco product and nicotine product enforcement
499 officer is authorized to issue a citation to a person under the
500 age of 21 18 when, based upon personal investigation, the
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501 officer has reasonable cause to believe that the person has
502 committed a civil infraction in violation of s. 386.212, or s.
503 569.11, or s. 569.42.
504 (3) A correctional probation officer as defined in s.
505 943.10(3) is authorized to issue a citation to a person under
506 the age of 21 18 when, based upon personal investigation, the
507 officer has reasonable cause to believe that the person has
508 committed a civil infraction in violation of s. 569.11 or s.
509 569.42.
510 (4) A citation issued to any person violating the
511 provisions of s. 569.11 or s. 569.42 shall be in a form
512 prescribed by the Division of Alcoholic Beverages and Tobacco of
513 the Department of Business and Professional Regulation and shall
514 contain:
515 (a) The date and time of issuance.
516 (b) The name and address of the person to whom the
517 citation is issued.
518 (c) The date and time the civil infraction was committed.
519 (d) The facts constituting reasonable cause.
520 (e) The number of the Florida statute violated.
521 (f) The name and authority of the citing officer.
522 (g) The procedure for the person to follow in order to
523 contest the citation, perform the required community service,
524 attend the required anti-tobacco or anti-tobacco and anti-
525 nicotine program, or to pay the civil penalty.
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526 Section 16. Section 569.14, Florida Statutes, is amended
527 to read:
528 569.14 Posting of a sign stating that the sale of tobacco
529 products or nicotine products to persons under 21 18 years of
530 age is unlawful; enforcement; penalty.—
531 (1) A dealer that sells tobacco products shall post a
532 clear and conspicuous sign in each place of business where such
533 products are sold which substantially states the following:
534 THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER THE AGE OF 21 18
535 IS AGAINST FLORIDA LAW. PROOF OF AGE IS REQUIRED FOR PURCHASE.
536 (2) A dealer that sells tobacco products and nicotine
537 products or nicotine dispensing devices, as defined in s.
538 877.112, may use a sign that substantially states the following:
539
540 THE SALE OF TOBACCO PRODUCTS, NICOTINE PRODUCTS, OR
541 NICOTINE DISPENSING DEVICES TO PERSONS UNDER THE AGE
542 OF 21 18 IS AGAINST FLORIDA LAW. PROOF OF AGE IS
543 REQUIRED FOR PURCHASE.
544
545 A dealer that uses a sign as described in this subsection meets
546 the signage requirements of subsection (1) and s. 569.43(1) s.
547 877.112.
548 (3) The division shall make available to dealers of
549 tobacco products signs that meet the requirements of subsection
550 (1) or subsection (2).
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551 (4) Any dealer that sells tobacco products shall provide
552 at the checkout counter in a location clearly visible to the
553 dealer or the dealer's agent or employee instructional material
554 in a calendar format or similar format to assist in determining
555 whether a person is of legal age to purchase tobacco products.
556 This point of sale material must contain substantially the
557 following language:
558 IF YOU WERE NOT BORN BEFORE THIS DATE
559 (insert date and applicable year)
560 YOU CANNOT BUY TOBACCO PRODUCTS, NICOTINE PRODUCTS,
561 OR NICOTINE DISPENSING DEVICES.
562 Upon approval by the division, in lieu of a calendar a dealer
563 may use card readers, scanners, or other electronic or automated
564 systems that can verify whether a person is of legal age to
565 purchase tobacco products. Failure to comply with the provisions
566 contained in this subsection shall result in imposition of
567 administrative penalties as provided in s. 569.006.
568 (5) The division, through its agents and inspectors, shall
569 enforce this section.
570 (6) Any person who fails to comply with subsection (1) is
571 guilty of a misdemeanor of the second degree, punishable as
572 provided in s. 775.082 or s. 775.083.
573 Section 17. Section 569.19, Florida Statutes, is amended
574 to read:
575 569.19 Annual report.—The division shall report annually
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576 with written findings to the Legislature and the Governor by
577 December 31, on the progress of implementing the enforcement
578 provisions of this part chapter. This must include, but is not
579 limited to:
580 (1) The number and results of compliance visits.
581 (2) The number of violations for failure of a retailer to
582 hold a valid license.
583 (3) The number of violations for selling tobacco products
584 to persons under age 21 18, and the results of administrative
585 hearings on the above and related issues.
586 (4) The number of persons under age 21 18 cited for
587 violations of s. 569.11 and sanctions imposed as a result of
588 citation.
589 Section 18. Section 569.24, Florida Statutes, is created
590 to read:
591 569.24 Preemption.—
592 (1) As used in this section, the term "minimum age" means
593 the lawful age to purchase or knowingly possess tobacco products
594 or nicotine products as set by the state at 21 years of age.
595 (2) The establishment of the minimum age for purchasing or
596 possessing tobacco products or nicotine products and the
597 regulation of the marketing, sale, or delivery of tobacco
598 products or nicotine products is preempted to the state.
599 Section 19. Section 569.31, Florida Statutes, is created
600 to read:
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601 569.31 Definitions.—As used in this part, the term:
602 (1) "Any person under the age of 21" does not include any
603 person under the age of 21 who:
604 (a) Is in the military reserve or on active duty in the
605 Armed Forces of the United States; or
606 (b) Is acting in his or her scope of lawful employment.
607 (2) "Dealer" has the same meaning as the term "retail
608 nicotine products dealer" as defined in this section.
609 (3) "Division" means the Division of Alcoholic Beverages
610 and Tobacco of the Department of Business and Professional
611 Regulation.
612 (4) "Nicotine dispensing device" means any product that
613 employs an electronic, chemical, or mechanical means to produce
614 vapor or aerosol from a nicotine product, including, but not
615 limited to, an electronic cigarette, electronic cigar,
616 electronic cigarillo, electronic pipe, or other similar device
617 or product, any replacement cartridge for such device, and any
618 other container of nicotine in a solution or other form intended
619 to be used with or within an electronic cigarette, electronic
620 cigar, electronic cigarillo, electronic pipe, or other similar
621 device or product.
622 (5) "Nicotine product" means any product that contains
623 nicotine, including liquid nicotine, which is intended for human
624 consumption, whether inhaled, chewed, absorbed, dissolved, or
625 ingested by any means. The term also includes any nicotine
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626 dispensing device. The term does not include a:
627 (a) Tobacco product, as defined in s. 569.002;
628 (b) Product regulated as a drug or device by the United
629 States Food and Drug Administration under Chapter V of the
630 Federal Food, Drug, and Cosmetic Act; or
631 (c) Product that contains incidental nicotine.
632 (6) "Permit" has the same meaning as the term "retail
633 nicotine products dealer permit" as defined in this section.
634 (7) "Retail nicotine products dealer" means the holder of
635 a retail nicotine products dealer permit.
636 (8) "Retail nicotine products dealer permit" means a
637 permit issued by the division under s. 569.32.
638 (9) "Self-service merchandising" means the open display of
639 nicotine products, whether packaged or otherwise, for direct
640 retail customer access and handling before purchase without the
641 intervention or assistance of the dealer or the dealer's owner,
642 employee, or agent. An open display of such products and devices
643 includes the use of an open display unit.
644 Section 20. Section 569.32, Florida Statutes, is created
645 to read:
646 569.32 Retail nicotine products dealer permits;
647 application; qualifications; renewal; duplicates.—
648 (1)(a) Each person, firm, association, or corporation that
649 seeks to deal, at retail, in nicotine products within the state,
650 or to allow a nicotine products vending machine to be located on
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651 its premises in the state, must obtain a retail nicotine
652 products dealer permit for each place of business or premises at
653 which nicotine products are sold. Each dealer owning, leasing,
654 furnishing, or operating vending machines through which nicotine
655 products are sold must obtain a permit for each machine and
656 shall post the permit in a conspicuous place on or near the
657 machine; however, if the dealer has more than one vending
658 machine at a single location or if nicotine products are sold
659 both over the counter and through a vending machine at a single
660 location, the dealer need obtain only one permit for that
661 location.
662 (b) Application for a permit must be made on a form
663 furnished by the division and must set forth the name under
664 which the applicant transacts or intends to transact business,
665 the address of the location of the applicant's place of business
666 within the state, and any other information the division
667 requires. If the applicant has or intends to have more than one
668 place of business dealing in nicotine products within the state,
669 a separate application must be made for each place of business.
670 If the applicant is a firm or an association, the application
671 must set forth the names and addresses of the persons
672 constituting the firm or association; if the applicant is a
673 corporation, the application must set forth the names and
674 addresses of the principal officers of the corporation. The
675 application must also set forth any other information prescribed
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676 by the division for the purpose of identifying the applicant
677 firm, association, or corporation. The application must be
678 signed and verified by oath or affirmation by the owner, if a
679 sole proprietor, or, if the owner is a firm, association, or
680 partnership, by the members or partners thereof, or, if the
681 owner is a corporation, by an executive officer of the
682 corporation or by a person authorized by the corporation to sign
683 the application, together with the written evidence of this
684 authority.
685 (2)(a) Permits may be issued only to persons who are 18
686 years of age or older or to corporations the officers of which
687 are 18 years of age or older.
688 (b) The division may refuse to issue a permit to any
689 person, firm, association, or corporation the permit of which
690 has been revoked, to any corporation an officer of which has had
691 his or her permit revoked, or to any person who is or has been
692 an officer of a corporation the permit of which has been
693 revoked. Any permit issued to a firm, association, or
694 corporation prohibited from obtaining a permit under this part
695 shall be revoked by the division.
696 (3) Upon approval of an application for a permit, the
697 division shall issue to the applicant a permit for the place of
698 business or premises specified in the application. A permit is
699 not assignable and is valid only for the person in whose name
700 the permit is issued and for the place designated in the permit.
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701 The permit shall be conspicuously displayed at all times at the
702 place for which it is issued.
703 Section 21. Section 569.33 Florida Statutes, is created to
704 read:
705 569.33 Consent to inspection and search without warrant.—
706 An applicant for a retail nicotine products dealer permit, by
707 accepting the permit when issued, agrees that the place or
708 premises covered by the permit is subject to inspection and
709 search without a search warrant by the division or its
710 authorized assistants, and by sheriffs, deputy sheriffs, or
711 police officers, to determine compliance with this part.
712 Section 22. Section 569.34, Florida Statutes, is created
713 to read:
714 569.34 Operating without a retail nicotine products dealer
715 permit; penalty.—
716 (1) It is unlawful for a person, firm, association, or
717 corporation to deal, at retail, in nicotine products, in any
718 manner, or to allow a nicotine products vending machine to be
719 located on its premises, without having a retail nicotine
720 products dealer permit as required by s. 569.32. A person who
721 violates this section commits a noncriminal violation,
722 punishable by a fine of not more than $500.
723 (2) A retail tobacco products dealer, as defined in s.
724 569.002, is not required to have a separate or additional retail
725 nicotine products dealer permit to deal, at retail, in nicotine
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726 products within the state, or allow a nicotine products vending
727 machine to be located on its premises in the state. Any retail
728 tobacco products dealer that deals, at retail, in nicotine
729 products or allows a nicotine products vending machine to be
730 located on its premises in the state is subject to, and must be
731 in compliance with, this part.
732 (3) Any person who violates this section shall be cited
733 for such infraction and shall be cited to appear before the
734 county court. The citation may indicate the time, date, and
735 location of the scheduled hearing and must indicate that the
736 penalty for a noncriminal violation is a fine of not more than
737 $500.
738 (a) A person cited for an infraction under this section
739 may:
740 1. Post a $500 bond; or
741 2. Sign and accept the citation indicating a promise to
742 appear.
743 (b) A person cited for a violation of this section may:
744 1. Pay the fine, either by mail or in person, within 10
745 days after receiving the citation; or
746 2. If the person has posted bond, forfeit the bond by not
747 appearing at the scheduled hearing.
748 (c) If the person pays the fine or forfeits the bond, the
749 person is deemed to have admitted to a violation of this section
750 and to have waived the right to a hearing on the issue of
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751 commission of the violation. Such admission may not be used as
752 evidence in any other proceeding.
753 (d) The court, after a hearing, shall make a determination
754 as to whether an infraction has been committed. If the
755 commission of an infraction has been proven beyond a reasonable
756 doubt, the court may impose a civil penalty in an amount that
757 may not exceed $500.
758 (e) If a person is found by the court to have committed
759 the infraction, that person may appeal that finding to the
760 circuit court.
761 Section 23. Section 569.35, Florida Statutes, is created
762 to read:
763 569.35 Retail nicotine product dealers; administrative
764 penalties.—The division may suspend or revoke the permit of a
765 dealer, including the retail tobacco products dealer permit of a
766 retail tobacco products dealer as defined in s. 569.002, upon
767 sufficient cause appearing of the violation of any of the
768 provisions of this part by a dealer or by a dealer's agent or
769 employee. The division may also assess and accept an
770 administrative fine of up to $1,000 against a dealer for each
771 violation. The division shall deposit all fines collected into
772 the General Revenue Fund as collected. An order imposing an
773 administrative fine becomes effective 15 days after the date of
774 the order. The division may suspend the imposition of a penalty
775 against a dealer, conditioned upon the dealer's compliance with
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776 terms the division considers appropriate.
777 Section 24. Section 569.37, Florida Statutes, is created
778 to read:
779 569.37 Sale or delivery of nicotine products;
780 restrictions.—
781 (1) In order to prevent persons under 21 years of age from
782 purchasing or receiving nicotine products, the sale or delivery
783 of nicotine products is prohibited, except:
784 (a) When under the direct control or line of sight of the
785 dealer or the dealer's agent or employee; or
786 (b) Sales from a vending machine are prohibited under
787 paragraph (a) and are only permissible from a machine that is
788 equipped with an operational lockout device which is under the
789 control of the dealer or the dealer's agent or employee who
790 directly regulates the sale of items through the machine by
791 triggering the lockout device to allow the dispensing of one
792 nicotine product. The lockout device must include a mechanism to
793 prevent the machine from functioning if the power source for the
794 lockout device fails or if the lockout device is disabled, and a
795 mechanism to ensure that only one nicotine product is dispensed
796 at a time.
797 (2)(a) A dealer that sells nicotine products may not sell,
798 permit to be sold, offer for sale, or display for sale such
799 products or devices by means of self-service merchandising.
800 (b) A dealer that sells nicotine products may not place
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801 such products or devices in an open display unit unless the unit
802 is located in an area that is inaccessible to customers.
803 (3) The provisions of subsections (1) and (2) shall not
804 apply to an establishment that prohibits persons under 21 years
805 of age on the licensed premises.
806 (4) A dealer or a dealer's agent or employee must require
807 proof of age of a purchaser of a nicotine product before selling
808 the product to that person, unless the purchaser appears to be
809 30 years of age or older.
810 Section 25. Section 569.38, Florida Statutes, is created
811 to read:
812 569.38 Gift of sample nicotine products.—The gift of
813 sample nicotine products to any person under the age of 21 by an
814 entity permitted under this part, or by an employee of such
815 entity, is prohibited and is punishable as provided in s.
816 569.41.
817 Section 26. Section 569.381, Florida Statutes, is created
818 to read:
819 569.381 Responsible retail nicotine products dealers;
820 qualifications; mitigation of disciplinary penalties; diligent
821 management and supervision; presumption.—
822 (1) It is the intent of the Legislature to prevent the
823 sale of nicotine products to persons under 21 years of age and
824 to encourage retail nicotine products dealers to comply with
825 responsible practices in accordance with this section.
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826 (2) To qualify as a responsible retail nicotine products
827 dealer, the dealer must establish and implement procedures
828 designed to ensure that the dealer's employees comply with this
829 part. The dealer must provide a training program for the
830 dealer's employees which addresses the use and sale of nicotine
831 products and which includes at least the following topics:
832 (a) Laws covering the sale of nicotine products.
833 (b) Methods of recognizing and handling customers under 21
834 years of age.
835 (c) Procedures for proper examination of identification
836 cards in order to verify that customers are not under 21 years
837 of age.
838 (d) The use of the age audit identification function on
839 electronic point-of-sale equipment, where available.
840 (3) In determining penalties under s. 569.35, the division
841 may mitigate penalties imposed against a dealer because of an
842 employee's illegal sale of a nicotine product to a person under
843 21 years of age if the following conditions are met:
844 (a) The dealer is qualified as a responsible dealer under
845 this section.
846 (b) The dealer provided the training program required
847 under subsection (2) to that employee before the illegal sale
848 occurred.
849 (c) The dealer had no knowledge of that employee's
850 violation at the time of the violation and did not direct,
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851 approve, or participate in the violation.
852 (d) If the sale was made through a vending machine, the
853 machine was equipped with an operational lock-out device.
854 (4) The division shall develop and make available a model
855 nicotine products training program designed to ensure adherence
856 to this part by dealers and their employees which, if followed,
857 will qualify dealers as responsible dealers.
858 (5) Dealers shall exercise diligence in the management and
859 supervision of their premises and in the supervision and
860 training of their employees, agents, or servants. In proceedings
861 to impose penalties under s. 569.35, proof that employees,
862 agents, or servants of the dealer, while in the scope of their
863 employment, committed at least three violations of s. 569.41
864 during a 180-day period shall be prima facie evidence of a lack
865 of due diligence by the dealer in the management and supervision
866 of his or her premises and in the supervision and training of
867 employees, agents, officers, or servants.
868 (6) The division may consider qualification as a
869 responsible retail nicotine products dealer under this section
870 as evidence that the dealer properly exercised the diligence
871 required under this section.
872 Section 27. Section 569.39, Florida Statutes, is created
873 to read:
874 569.39 Rulemaking authority.—The division shall adopt
875 rules to administer and enforce this part.
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876 Section 28. Section 569.41, Florida Statutes, is created
877 to read:
878 569.41 Selling, delivering, bartering, furnishing, or
879 giving nicotine products to persons under 21 years of age;
880 criminal penalties; defense.—
881 (1) It is unlawful to sell, deliver, barter, furnish, or
882 give, directly or indirectly, any nicotine product to any person
883 who is under 21 years of age.
884 (2) Any person who violates subsection (1) commits a
885 misdemeanor of the second degree, punishable as provided in s.
886 775.082 or s. 775.083. However, any person who violates
887 subsection (1) for a second or subsequent time within 1 year
888 after the first violation commits a misdemeanor of the first
889 degree, punishable as provided in s. 775.082 or s. 775.083.
890 (3) A person charged with a violation of subsection (1)
891 has a complete defense if, at the time the nicotine product was
892 sold, delivered, bartered, furnished, or given:
893 (a) The buyer or recipient falsely evidenced that she or
894 he was 21 years of age or older;
895 (b) The appearance of the buyer or recipient was such that
896 a prudent person would believe the buyer or recipient to be 21
897 years of age or older; and
898 (c) Such person carefully checked a driver license or an
899 identification card issued by the state or another state of the
900 United States, a passport, or a United States Armed Services
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901 identification card presented by the buyer or recipient and
902 acted in good faith and in reliance upon the representation and
903 appearance of the buyer or recipient in the belief that the
904 buyer or recipient was 21 years of age or older.
905 Section 29. Section 569.42, Florida Statutes, is created
906 to read:
907 569.42 Possession, misrepresenting age or military service
908 to purchase, and purchase of nicotine products by persons under
909 21 years of age prohibited; penalties; jurisdiction; disposition
910 of fines.—
911 (1) It is unlawful for any person under 21 years of age to
912 knowingly possess any nicotine product. Any person under 21
913 years of age who violates this subsection commits a noncriminal
914 violation as provided in s. 775.08(3), punishable by:
915 (a) For a first violation, 16 hours of community service
916 or, instead of community service, a $25 fine. In addition, the
917 person must attend a school-approved anti-tobacco and anti-
918 nicotine program, if locally available; or
919 (b) For a second or subsequent violation within 12 weeks
920 after the first violation, a $25 fine.
921
922 Any second or subsequent violation not within the 12-week period
923 after the first violation is punishable as provided for a first
924 violation.
925 (2) It is unlawful for any person under 21 years of age to
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926 misrepresent his or her age or military service for the purpose
927 of inducing a dealer or an agent or employee of the dealer to
928 sell, give, barter, furnish, or deliver any nicotine product, or
929 to purchase, or attempt to purchase, any nicotine product from a
930 person or a vending machine. Any person under 21 years of age
931 who violates this subsection commits a noncriminal violation as
932 defined in s. 775.08(3), punishable by:
933 (a) For a first violation, 16 hours of community service
934 or, instead of community service, a $25 fine and, in addition,
935 the person must attend a school-approved anti-tobacco and anti-
936 nicotine program, if available; or
937 (b) For a second or subsequent violation within 12 weeks
938 after the first violation, a $25 fine.
939
940 Any second or subsequent violation not within the 12-week period
941 after the first violation is punishable as provided for a first
942 violation.
943 (3) Any person under 21 years of age cited for committing
944 a noncriminal violation under this section must sign and accept
945 a civil citation indicating a promise to appear before the
946 county court or comply with the requirement for paying the fine
947 and must attend a school-approved anti-tobacco and anti-nicotine
948 program, if locally available. If a fine is assessed for a
949 violation of this section, the fine must be paid within 30 days
950 after the date of the citation or, if a court appearance is
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951 mandatory, within 30 days after the date of the hearing.
952 (4) A person charged with a noncriminal violation under
953 this section must appear before the county court or comply with
954 the requirement for paying the fine. The court, after a hearing,
955 shall make a determination as to whether the noncriminal
956 violation was committed. If the court finds the violation was
957 committed, it shall impose an appropriate penalty as specified
958 in subsection (1) or subsection (2). A person who participates
959 in community service shall be considered an employee of the
960 state for the purpose of chapter 440 for the duration of such
961 service.
962 (5)(a) If a person under 21 years of age is found by the
963 court to have committed a noncriminal violation under this
964 section and the person has failed to complete community service,
965 pay the fine as required by paragraph (1)(a) or paragraph
966 (2)(a), or attend a school-approved anti-tobacco and anti-
967 nicotine program, if locally available, the court may direct the
968 Department of Highway Safety and Motor Vehicles to withhold
969 issuance of or suspend the driver license or driving privilege
970 of that person for a period of 30 consecutive days.
971 (b) If a person under 21 years of age is found by the
972 court to have committed a noncriminal violation under this
973 section and that person has failed to pay the applicable fine as
974 required by paragraph (1)(b) or paragraph (2)(b), the court may
975 direct the Department of Highway Safety and Motor Vehicles to
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976 withhold issuance of or suspend the driver license or driving
977 privilege of that person for a period of 45 consecutive days.
978 (6) Eighty percent of all civil penalties received by a
979 county court under this section shall be remitted by the clerk
980 of the court to the Department of Revenue for transfer to the
981 Department of Education to provide for teacher training and for
982 research and evaluation to reduce and prevent the use of
983 nicotine products by children. The remaining 20 percent of civil
984 penalties received by a county court under this section shall
985 remain with the clerk of the county court to cover
986 administrative costs.
987 Section 30. Section 569.43, Florida Statutes, is created
988 to read:
989 569.43 Posting of a sign stating that the sale of nicotine
990 products or nicotine dispensing devices to persons under 21
991 years of age is unlawful; enforcement; penalty.—
992 (1) A dealer that sells nicotine products shall post a
993 clear and conspicuous sign in each place of business at which
994 such products are sold which substantially states the following:
995
996 THE SALE OF NICOTINE PRODUCTS OR NICOTINE DISPENSING
997 DEVICES TO PERSONS UNDER THE AGE OF 21 IS AGAINST
998 FLORIDA LAW. PROOF OF AGE IS REQUIRED FOR PURCHASE.
999
1000 (2) The division shall make available to dealers of
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1001 nicotine products signs that meet the requirements of subsection
1002 (1).
1003 (3) Any dealer that sells nicotine products shall provide
1004 at the checkout counter in a location clearly visible to the
1005 dealer or the dealer's agent or employee instructional material
1006 in a calendar format or similar format to assist in determining
1007 whether a person is of legal age to purchase nicotine products.
1008 This point of sale material must contain substantially the
1009 following language:
1010
1011 IF YOU WERE NOT BORN BEFORE THIS DATE
1012 (insert date and applicable year)
1013 YOU CANNOT BUY TOBACCO PRODUCTS, NICOTINE PRODUCTS, OR NICOTINE
1014 DISPENSING DEVICES.
1015
1016 Upon approval by the division, in lieu of a calendar a dealer
1017 may use card readers, scanners, or other electronic or automated
1018 systems that can verify whether a person is of legal age to
1019 purchase nicotine products. Failure to comply with the
1020 provisions contained in this subsection shall result in
1021 imposition of administrative penalties as provided in s. 569.35.
1022 (4) The division, through its agents and inspectors, shall
1023 enforce this section.
1024 (5) Any person who fails to comply with subsection (1)
1025 commits a misdemeanor of the second degree, punishable as
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1026 provided in s. 775.082 or s. 775.083.
1027 Section 31. Section 569.44, Florida Statutes, is created
1028 to read:
1029 569.44 Annual report.—The division shall report annually
1030 with written findings to the Legislature and the Governor by
1031 December 31 on the progress of implementing the enforcement
1032 provisions of this part. The report must include, but is not
1033 limited to:
1034 (1) The number and results of compliance visits.
1035 (2) The number of violations for failure of a retailer to
1036 hold a valid permit.
1037 (3) The number of violations for selling nicotine products
1038 to persons under age 21, and the results of administrative
1039 hearings on the above and related issues.
1040 (4) The number of persons under age 21 cited for
1041 violations of s. 569.42 and sanctions imposed as a result of
1042 citation.
1043 Section 32. Section 569.45, Florida Statutes, is created
1044 to read:
1045 569.45 Mail order, Internet, and remote sales of nicotine
1046 products; age verification.—
1047 (1) For purposes of this section, the term:
1048 (a) "Consumer" means a person in the state who comes into
1049 possession of any nicotine product who, at the time of
1050 possession, is not intending to sell or distribute the nicotine
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1051 product, or is not a retailer.
1052 (b) "Delivery sale" means any sale of nicotine products to
1053 a consumer in the state for which:
1054 1. The consumer submits the order for the sale by
1055 telephonic or other voice transmission, mail, delivery service,
1056 or the Internet or other online service; or
1057 2. The nicotine products are delivered by use of mail or a
1058 delivery service.
1059 (c) "Delivery service" means any person engaged in the
1060 commercial delivery of letters, packages, or other containers.
1061 (d) "Legal minimum purchase age" means the minimum age at
1062 which an individual may legally purchase nicotine products in
1063 the state.
1064 (e) "Retailer" means any person who is required to obtain
1065 a retail nicotine products dealer permit or a retail tobacco
1066 products dealer permit, as those terms are defined in s.
1067 569.002.
1068 (f) "Shipping container" means a container in which
1069 nicotine products are shipped in connection with a delivery
1070 sale.
1071 (g) "Shipping document" means a bill of lading, airbill,
1072 United States Postal Service form, or any other document used to
1073 verify the undertaking by a delivery service to deliver letters,
1074 packages, or other containers.
1075 (2)(a) A sale of nicotine products constituting a delivery
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1076 sale as defined in paragraph (1)(b) is a delivery sale
1077 regardless of whether the person accepting the order for the
1078 delivery sale is located inside or outside the state.
1079 (b) A retailer must obtain a retail nicotine products
1080 dealer permit or a retail tobacco products dealer permit, as
1081 those terms are defined in s. 569.002, from the division under
1082 the requirements of this chapter before accepting an order for a
1083 delivery sale.
1084 (c) A person may not make a delivery sale of nicotine
1085 products to any individual who is not 21 years of age or older.
1086 (d) Each person accepting an order for a delivery sale
1087 must comply with each of the following:
1088 1. The age verification requirements set forth in
1089 subsection (3).
1090 2. The disclosure requirements set forth in subsection
1091 (4).
1092 3. The shipping requirements set forth in subsection (5).
1093 (3) A person may not mail, ship, or otherwise deliver
1094 nicotine products in connection with an order for a delivery
1095 sale unless, before the first delivery to the consumer, the
1096 person accepting the order for the delivery sale:
1097 (a) Obtains from the person submitting the order a
1098 certification that includes:
1099 1. Reliable confirmation that the person is 21 years of
1100 age or older; and
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1101 2. A statement signed by the person in writing and under
1102 penalty of perjury which:
1103 a. Certifies the address and date of birth of the person;
1104 and
1105 b. Confirms that the person wants to receive delivery
1106 sales from a nicotine products company and understands that,
1107 under the laws of the state, the following actions are illegal:
1108 (I) Signing another person's name to the certification;
1109 (II) Selling nicotine products to individuals who are not
1110 21 years of age or older; and
1111 (III) Purchasing nicotine products, if the person making
1112 the purchase is not 21 years of age or older.
1113 (b) Makes a good faith effort to verify the information
1114 contained in the certification provided by the individual under
1115 paragraph (a) against a commercially available database that may
1116 be reasonably relied upon for accurate age information or
1117 obtains a photocopy or other image of a valid government-issued
1118 identification card stating the date of birth or age of the
1119 individual.
1120 (c) Provides to the individual, via electronic mail or
1121 other means, a notice meeting the requirements of subsection
1122 (4).
1123 (d) If an order for nicotine products is made pursuant to
1124 an advertisement on the Internet, receives payment for the
1125 delivery sale from the consumer by a credit or debit card issued
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1126 in the name of the consumer, or by personal or company check of
1127 the consumer.
1128 (e) Submits, to each credit card acquiring company with
1129 which the person has credit card sales, identification
1130 information in an appropriate form and format so that the words
1131 "nicotine product" may be printed in the purchaser's credit card
1132 statement when a purchase of a nicotine product is made by
1133 credit card payment.
1134 (f) Makes a telephone call after 5 p.m. to the purchaser
1135 confirming the order before shipping the nicotine products. The
1136 telephone call may be a person-to-person call or a recorded
1137 message. The person accepting the order for delivery sale is not
1138 required to speak directly with a person and may leave a message
1139 on an answering machine or through voice mail.
1140
1141 In addition to the requirements of this subsection, a person
1142 accepting an order for a delivery sale may request that a
1143 consumer provide an electronic mail address.
1144 (4) The notice described in paragraph (3)(c) must include
1145 prominent and clearly legible statements that sales of nicotine
1146 products are:
1147 (a) Illegal if made to individuals who are not 21 years of
1148 age or older.
1149 (b) Restricted to those individuals who provide verifiable
1150 proof of age in accordance with subsection (3).
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1151 (5) Each person who mails, ships, or otherwise delivers
1152 nicotine products in connection with an order for a delivery
1153 sale must:
1154 (a) Include as part of the shipping documents, in a clear
1155 and conspicuous manner, the following statement: "Nicotine
1156 Products: Florida law prohibits shipping to individuals under 21
1157 years of age."
1158 (b) Use a method of mailing, shipping, or delivery which
1159 obligates the delivery service to require:
1160 1. The individual submitting the order for the delivery
1161 sale or another person 21 years of age or older who resides at
1162 the individual's address to sign his or her name to accept
1163 delivery of the shipping container. Proof of the legal minimum
1164 purchase age of the individual accepting delivery is required
1165 only if the individual appears to be under 30 years of age.
1166 2. Proof that the individual is either the addressee or
1167 the individual who is 21 years of age or older designated by the
1168 addressee, in the form of a valid, government-issued
1169 identification card bearing a photograph of the individual who
1170 signs to accept delivery of the shipping container.
1171
1172 If the person accepting a purchase order for a delivery sale
1173 delivers the nicotine products without using a delivery service,
1174 the person must comply with all of the requirements of this
1175 section which apply to a delivery service. Any failure to comply
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1176 with a requirement of this section constitutes a violation of
1177 this section.
1178 (6) This section does not apply to delivery sales of
1179 nicotine products to a retail nicotine products dealer or a
1180 retail tobacco products dealer, as those terms are defined in s.
1181 569.002.
1182 (7) An individual 21 years of age or older who knowingly
1183 violates any provision of this section commits a misdemeanor of
1184 the second degree, punishable as provided in s. 775.082 or s.
1185 775.083.
1186 (8) The Attorney General, the Attorney General's designee,
1187 or a state attorney may bring an action in the appropriate court
1188 in the state to prevent or restrain violations of this section
1189 by any person.
1190 Section 33. Section 877.112, Florida Statutes, is
1191 repealed.
1192 Section 34. This act shall take effect December 1, 2021.
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CS/HB 1239
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1239 Broadband Internet Infrastructure
SPONSOR(S): Ways & Means Committee, Tomkow and others
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Tourism, Infrastructure & Energy Subcommittee 15 Y, 1 N Willson Keating
2) Ways & Means Committee 15 Y, 1 N, As CS Berg Aldridge
3) Commerce Committee Willson Hamon
SUMMARY ANALYSIS
Federal law provides that a state or local government may not prohibit the ability of any entity to provide
telecommunications services. Federal law also recognizes the authority of state and local governments to
manage the public right-of-way (ROW) and to require fair and reasonable compensation from
telecommunications service providers, on a competitively neutral and nondiscriminatory basis, for the use of
such ROW.
Federal law requires investor-owned utilities to provide nondiscriminatory access for attachments to their poles,
conduit, or ROW by cable television systems and telecommunications carriers, and authorizes the Federal
Communications Commission (FCC) to regulate the rates, terms, and conditions of such attachments in the
absence of parallel state regulation.
Most attachments of cable and telecommunications carrier facilities to utility poles owned by a municipal
electric utility are not currently regulated at the state or federal level.
The bill requires and provides a procedure for access by broadband providers for attachments to poles owned
and operated by municipal electric utilities. It provides for the adoption of rates, terms, and conditions for such
access consistent with federal requirements for pole attachments. Each municipal electric utility must:
Make available all records necessary to calculate the pole attachment rate pursuant to the current FCC
formula used to calculate attachment rates for cable service providers.
Rearrange, expand, replace, or reengineer any pole if necessary to accommodate the new attachment.
If replacement is required, the municipal utility must complete all necessary work within 90 days of a
request and may be reimbursed only the cost associated with advancing the retirement of the existing pole.
The bill provides that existing pole attachment agreements must be renegotiated at the request of either party
in order to bring the agreement in compliance with the bill. The bill specifies that disputes over pole attachment
agreements must be adjudicated in circuit court, and that the effect of a court’s determination is retroactive to
the date of the request to renegotiate.
The bill does not appear to have a fiscal impact on state government, but appears to have an indeterminate
impact on local government revenues and expenditures.
The bill takes effect on 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
Regulation of Pole Attachments
The term pole attachment refers to the process by which communications companies can collocate
communications infrastructure on existing electric utility poles. Utility poles are divided into various
“spaces” for specific uses, and different vertical portions of the pole serve different functions.1 Utility
poles often accommodate equipment used to provide a variety of services, including electric power,
telephone, cable, wireline broadband, and wireless, which benefits the public by minimizing
“unnecessary and costly duplication of plant for all pole users.”2
The bottom of the pole generally is unusable for most types of attachments, although providers of
wireless services and facilities sometimes attach equipment associated with distributed antenna
systems and other small wireless facilities to the portion of the pole near the ground.3 Above that, the
lower usable space on a pole (known as the “communications space”) houses low-voltage
communications equipment, including fiber, coaxial cable, and copper wiring.4 The topmost portion of
the pole, the “electric space,” houses high-voltage electrical equipment.5 Historically, communications
equipment attachers used only the communications space; however, mobile wireless providers
increasingly are seeking access to areas above the communications space, including the electric
space, to attach pole-top small wireless facilities. When a new attacher seeks access to a pole, it is
necessary to evaluate whether adding the attachment will be safe and whether there is room for it. In
many cases, existing attachments must be moved to make room for the new attachment. In some
cases, it is necessary to install a larger pole to accommodate a new attachment.6
Federal law provides that a state or local government may not prohibit the ability of any entity to provide
telecommunications services.7 Federal law also recognizes the authority of state and local
governments to manage the public right-of-way (ROW) and to require fair and reasonable
compensation from telecommunication providers, on a competitively neutral and nondiscriminatory
basis, for the use of such ROW.8
Congress began regulating pole attachments9 in 1978.10 The Telecommunications Act (Act) of 199611
expanded pole attachment rights to telecommunications12 carriers. The Act requires utilities13 to provide
1 See Florida Public Service Commission, What’s on a Utility Pole? http://www.psc.state.fl.us/ConsumerAssistance/UtilityPole (last
visited Mar. 17, 2021).
2 S. REP. NO. 95-580, at 13 (1977), as reprinted in 1978 U.S.C.C.A.N. 109, 121.
3 See EEI Oct. 3, 2017 Wireline Ex Parte Letter at Attach. Pole Attachments: Safety and Reliability; Crown Castle
Wireline NPRM Comments at 5.
4 PSC, supra, note 1.
5 PSC, supra, note 1.
6 FCC-CIRC1808-03 at 4-5.
7 47 U.S.C. § 253(a).
8 47 U.S.C. § 253(c). states that “Nothing in this section affects the authority of a State or local government to manage the public rights-
of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and
nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed
by such government.”
9 47 U.S.C. § 224(a)(4), defines ‘‘pole attachment’’ as “any attachment by a cable television system or provider of telecommunications
service to a pole, duct, conduit, or right-of-way owned or controlled by a utility.”
10 The Pole Attachment Act of 1978 granted utility pole access to cable companies and was designed to promote utility competition and
service to the public. Communications Act Amendments of 1978, Pub. L. No. 95-234. (Feb. 21, 1978).
11 Telecommunications Act of 1996, Pub. LA. No. 104-104, 110 Stat. 56 (1996).
12 The term “telecommunications” means the transmission, between or among points specified by the user, of information of the user’s
choosing, without change in the form or content of the information as sent and received. 47 U.S.C. § 153(50).
13 47 U.S.C. § 224(a)(1), defines ‘‘utility’’ as “any person who is a local exchange carrier or an electric, gas, water, steam, or other
public utility, and who owns or controls poles, ducts, conduits, or rights-of-way used, in whole or in part, for any wire communications.
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nondiscriminatory access to cable television systems and telecommunications carriers. The Act also
authorizes the Federal Communications Commission14 (FCC) to regulate the rates, terms, and
conditions of attachments by cable television operators to the poles, conduit, or ROW owned or
controlled by utilities in the absence of parallel state regulation.15 The Act withheld from FCC
jurisdiction the authority to regulate attachments where the utility is a railroad, cooperatively organized,
or owned by a government entity.16
In April 2011, the FCC approved a pole attachment order which established a revised
telecommunications formula and included make-ready17 provisions which provided a benchmark for
pole attachment rates and access.18
In September 2018, the FCC issued an order19 which preempted state and local laws and agreements,
including those related to pole attachments, to remove regulatory barriers that would inhibit the
deployment of “small cell” infrastructure necessary to support new wireless broadband services. The
order set uniform rates and regulations for attachments on poles owned and controlled by publicly-
owned electric utilities.20 The order provided that state or local fees charged to mobile service providers
for deploying small cell sites violate federal law unless they:
Are a reasonable approximation of the state or local government’s costs;
Only factor in costs that are “objectively reasonable;” and
Are no higher than fees charged to similarly situated competitors.21
Except for small cell wireless facilities, attachments of cable and telecommunications carrier facilities to
utility poles owned by a municipal electric utility are not currently regulated at the state or federal level.
Effect of the Bill
Broadband Service Infrastructure
The bill creates s. 364.0137, F.S., to provide requirements for broadband provider attachments to
municipal electric utility poles.
Such term does not include any railroad, any person who is cooperatively organized, or any person owned by the Federal Government
or any State.”
14 The FCC regulates interstate and international communications by radio, television, wire, satellite and cable in all 50 states, the
District of Columbia and U.S. territories. An independent U.S. government agency overseen by Congress, the FCC is the United States'
primary authority for communications law, regulation and technological innovation. FCC, What We Do, https://www.fcc.gov/about-
fcc/what-we-do (last visited Mar 13, 2021).
15 47 U.S.C. § 224.
16 In the Matter of Implementation of Section 224 of the Act A Nat'l Broadband Plan for Our Future, 26 F.C.C. Rcd. 5240, 5245–46
(2011).
17 “Make-ready” generally refers to the modification of poles or lines or the installation of guys and anchors to accommodate additional
attachments. FCC, Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, CC Docket Nos. 96-98,
95-185, Order on Reconsideration, 14 FCC Rcd 18049, 18056 n.50 (1999).
18 FCC, In the Matter of A National Broadband Plan for Our Future (GN Docket No. 09-51) Implementation of Section 224 of the Act
(WC Docket No. 07-245) Report And Order And Order On Reconsideration, FCC 11-50. (Apr. 7, 2011).
19 FCC, Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, Report and Order, 33 FCC
Rcd 9088 (14), FCC-18-133. See also Congressional Research Service, Overview of Legal Challenges to the FCC’s 5G Order on Small
Cell Siting (Feb. 25, 2019) The Order’s discussion of preemption begins by interpreting the Telecommunication Act’s two relevant
preemption provisions: Sections 253 and 332(c)(7). Subject to certain exceptions, these sections preempt state and local requirements
that “prohibit or have the effect of prohibiting the ability of any entity” to provide “telecommunications” or “personal wireless services.”
The Order interprets these provisions as imposing a “material inhibition” standard, concluding that a law “ha[s] the effect of prohibiting”
a telecommunications entity from providing service if it “materially limits or inhibits the ability of any competitor or potential competitor to
compete in a fair and balanced legal and regulatory environment.”
20 American Public Power Association, Preserving the Municipal Exemption from Federal Pole Attachment Regulations, at 2.
https://www.publicpower.org/system/files/documents/January%202021%20-%20Federal%20Pole%20Attachment%20Regulations.pdf
(last visited Mar. 17, 2021).
21 CRS, supra, note 19, at 2-3. The order also identifies specific fee limits that are presumptively allowed under federal law. For non-
recurring fees, such as up-front applications for small cell site installations, localities may charge up to $500, subject to certain
exceptions. For recurring fees, such as access fees, localities may charge up to $270 per year. Under certain circumstances, higher
fees may be charged due to local cost variances.
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The bill provides legislative findings that just, reasonable, and nondiscriminatory rates, terms, and
condition for access and use of municipal electric utility poles by broadband service providers is
essential for the deployment of broadband service to the residents of the state.
The bill defines the following terms:
“Attachment” means any attachment to a utility pole or structure, duct, conduit, or right-of-way
owned or controlled by a municipal electric utility.
“Broadband provider” means a person who provides broadband service, and includes a person
who provides or offers additional services to the public in addition to broadband service.
“Broadband service” means a service that provides high-speed access to the Internet at a rate
of at least 25 megabits per second in the downstream direction and at least 3 megabits per
second in the upstream direction.
“Utility pole” means a pole owned or controlled by a municipal electric utility which is used in
whole or in part for electric distribution.
The bill provides that to promote the deployment of broadband service to all residents, each municipal
utility must provide broadband providers with access to any utility pole it owns or operates and adopt
rates, terms and conditions for such access that are consistent with 47 U.S.C. s. 224 and any FCC
regulations and decisions adopted as of July 1, 2021. The rates, terms, and conditions must be
nondiscriminatory, just, and reasonable and may not favor a pole owner, owner, or affiliate of the pole
owner.
A municipal electric utility may not discriminate between providers and any attaching entity, regardless
of the services furnished. The annual recurring rate established by the utility may not exceed the rate
calculated pursuant to the cable service rate formula established by 47 U.S.C. s. 224(d) and FCC
regulations and decisions in existence on July 1, 2021. The utility must maintain the records necessary
to calculate the charges, including costs, description, and depreciation of the utility poles, including any
ancillary poles.
The bill requires a municipal utility to rearrange or otherwise reengineer any utility pole if necessary to
accommodate the broadband provider’s new attachment. If the utility pole must be replaced to
accommodate the attachment, the utility may only charge the broadband provider its actual and
reasonable costs of “advancing the retirement of the existing utility pole.” The costs must be measured
by all of the following:
Net book value of the existing utility pole;
Incremental cost of installing a utility pole with greater capacity than the existing pole; and
Other incremental costs that may not include the cost of a pole that the municipal utility would
have installed at the same location.
A municipal utility may not prohibit a broadband provider from using boxing techniques, extension
arms, attachments below existing attachments where space is unavailable above the existing
attachments, temporary attachments, or other methods or equipment, provided that they comply with
the National Electric Safety Code, or any other applicable safety codes.
For any pole replacement, the bill requires the municipal utility to complete all work necessary to
accommodate the broadband provider’s attachments within 90 days after receipt of an attachment
request from the provider. The municipal utility may not require the provider to comply with any
attachment specifications that exceed the National Electric Safety Code or any applicable codes.
A municipal electric utility or a broadband provider may submit a written request to negotiate an
agreement or to amend, modify, or renew an existing agreement on attachments to conform to the
provisions of the bill. The parties must negotiate in good faith for at least 60 days, and after that time,
either party may petition the circuit court to determine rates, terms and conditions of the agreements
consistent with the provisions of the bill, which include application of current federal law, such as the
FCC-approved formula for calculating cable service attachment rates. The court must enter a decision
within 180 days after the filing of the petition. The court’s decision is retroactive to apply to existing
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attachments and to the date of the written request to negotiate and applies to the continuing terms of all
existing attachments installed before the written request.
Between the date of the written request and the court’s decision:
The terms of any existing agreement on attachments apply, subject to true-up, to put the parties
in the position they would have been if the court’s decision had been in effect on the date of the
negotiation request.
In the absence of an existing agreement, unless the parties agree otherwise, the court, within 30
days following the petition for determination, is required to establish interim rates and
conditions, subject to a true-up, to put the parties in the position they would have been if the
court’s decision had been in effect on the date of the negotiation request.
A utility or provider may seek available remedies at law or equity for violations of the provisions of the
bill. The court is required to give effect to the provisions of 47 U.S.C. s. 224 and FCC regulations and
decisions in existence on July 1, 2021, in making its decision.
The bill takes effect on July 1, 2021.
B. SECTION DIRECTORY:
Section 1 Provides a short title.
Section 2 Creates s. 364.0137, F.S., relating to broadband service infrastructure.
Section 3 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:
The bill may have an indeterminate impact on local government revenues associated with potential
changes to the pole attachment charges.
2. Expenditures:
The bill appears to have an indeterminate negative impact on local government expenditures
associated with the renegotiation and possible litigation of pole attachment rates, terms, and
conditions. The bill may also negatively impact local governments that are required to replace poles
sooner than planned.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
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Broadband service providers may see an adjustment in the pole attachment fees paid to municipal
electric utilities for installation of attachments to the utilities’ poles.
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:
On line 100, the first word “to” appears to be a drafting error.
Line 198 refers to the “commission’s determination” but should read “court’s determination.”
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On April 8, 2021, The Ways & Means Committee adopted an amendment that removed provisions in
the bill that created a sales tax exemption for equipment purchased, leased, or sold in Florida for use
by providers of telecommunications services and providers of Internet access services.
This analysis is drafted to the bill as amended.
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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 1239 2021
1 A bill to be entitled
2 An act relating to broadband Internet infrastructure;
3 providing a short title; creating s. 364.0137, F.S.;
4 providing legislative findings; providing definitions;
5 requiring municipal electric utilities to ensure that
6 their broadband provider rates and fees meet certain
7 requirements, make certain records available to
8 broadband providers, and establish just and reasonable
9 terms and conditions for broadband provider
10 attachments; prohibiting utilities from prohibiting a
11 broadband provider from using certain techniques and
12 equipment if used in accordance with certain safety
13 standards; requiring any required pole replacement to
14 be completed within a specified timeframe; prohibiting
15 utilities from requiring a broadband provider to
16 comply with attachment specifications that exceed
17 specified established safety levels; providing
18 construction; authorizing municipal electric utilities
19 and broadband providers to negotiate agreements or
20 renegotiate existing agreements and to petition the
21 court after a specified timeframe if unable to reach
22 an agreement; requiring the court to make a
23 determination within a specified timeframe; specifying
24 that such determination applies retroactively;
25 authorizing municipal electric utilities and broadband
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26 providers to seek any available remedies; providing an
27 effective date.
28
29 WHEREAS, although this state is a national leader in
30 private sector broadband investment, including billions of
31 dollars invested by existing service providers, estimates show
32 that as many as 804,000 residents lack access to the services,
33 particularly in rural areas where the cost to deploy facilities
34 is significantly higher than in more densely populated areas,
35 and
36 WHEREAS, the lack of advanced communication capabilities,
37 broadband facilities, and services in certain areas deprives
38 residents of access to opportunities, and
39 WHEREAS, the Legislature finds that it is in the public
40 interest of this state to encourage private-sector investment in
41 broadband deployment and upgrades, encourage greater
42 participation and access for all residents, and remove
43 regulatory and economic barriers to such investment, and
44 WHEREAS, the Legislature finds that it is in the public
45 interest of this state to encourage and facilitate the
46 development of and investment in broadband facilities to advance
47 Florida's economic competitiveness, create job opportunities,
48 enhance health care, and enhance educational advancement, and
49 WHEREAS, the Legislature finds that reasonable rates,
50 terms, and conditions for access and use of municipal utility
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51 poles by broadband service providers are essential for the
52 deployment, upgrade, and maintenance of broadband service, and
53 WHEREAS, it is critical that such access rates, terms, and
54 conditions be reasonable and fully compensatory, as approved by
55 the federal pole attachment framework imposed by the
56 Communications Act of 1934, as amended, 47 U.S.C. s. 224, and
57 the regulations of the Federal Communications Commission
58 governing utilities whose pole attachments are regulated under
59 federal law, NOW, THEREFORE,
60
61 Be It Enacted by the Legislature of the State of Florida:
62
63 Section 1. This act may be cited as the "Florida Broadband
64 Deployment Act of 2021."
65 Section 2. Section 364.0137, Florida Statutes, is created
66 to read:
67 364.0137 Broadband service infrastructure.—
68 (1) The Legislature finds that just, reasonable, and
69 nondiscriminatory rates, terms, and conditions for the access
70 and use of municipal electric utility poles by broadband service
71 providers is essential to deploy, upgrade, and maintain
72 broadband service to residents of the state. It is critical that
73 municipal electric utility pole access and use rates are just,
74 reasonable, nondiscriminatory, and fully compensatory, which may
75 be achieved under the federal law framework applicable to
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76 utility poles owned and operated by investor-owned utilities.
77 The terms and conditions associated with the access and use of
78 utility poles must be consistent with 47 U.S.C. s. 224, the
79 Communications Act of 1934, as amended, and the regulations of
80 the Federal Communications Commission, as those regulations
81 existed on July 1, 2021.
82 (2) As used in this section, the term:
83 (a) "Attachment" means any attachment to a utility pole or
84 structure, duct, conduit, or right-of-way owned or controlled by
85 a municipal electric utility.
86 (b) "Broadband provider" means a person who provides
87 broadband service, and includes a person who provides or offers
88 additional services to the public in addition to broadband
89 service.
90 (c) "Broadband service" means a service that provides
91 high-speed access to the Internet at a rate of at least 25
92 megabits per second in the downstream direction and at least 3
93 megabits per second in the upstream direction.
94 (d) "Utility pole" means a pole owned or controlled by a
95 municipal electric utility which is used in whole or in part for
96 electric distribution.
97 (3) To promote the deployment of broadband service to all
98 residents, each municipal electric utility:
99 (a) Shall provide broadband providers with access to any
100 to utility poles it owns or operates and adopt rates, terms, and
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101 conditions for such access which are consistent with the
102 provisions of 47 U.S.C. s. 224 and any Federal Communications
103 Commission regulations and decisions adopted thereunder, as such
104 regulations and decisions existed on July 1, 2021. The rates,
105 terms, and conditions must be nondiscriminatory, just, and
106 reasonable and may not favor a pole owner or an affiliate of the
107 pole owner.
108 (b)1. Shall ensure that any rate or fee that the municipal
109 electric utility charges to a broadband provider for an
110 attachment to a utility pole does not:
111 a. Discriminate between or among such providers and any
112 other attaching entity, regardless of the services furnished.
113 b. Exceed the annual recurring rate calculated in
114 accordance with the cable service rate formula established by 47
115 U.S.C. s. 224(d) or any Federal Communications Commission rule,
116 regulation, or decision adopted thereunder, as such existed on
117 July 1, 2021.
118 2. Shall maintain and make available to a broadband
119 provider all records necessary to calculate the rate it charges
120 to the provider. The records must include:
121 a. All costs associated with utility poles; any
122 improvements or reinforcements thereto; and any appurtenances,
123 including costs associated with storm hardening efforts, which
124 must be identified with particularity.
125 b. Identification of the actual height, usable space, and
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126 appurtenances associated with each utility pole.
127 c. Information regarding any ancillary utility poles and
128 the costs associated with such poles, which are separately
129 identifiable from the principal utility poles they support.
130 d. To the extent the accumulated depreciation for a
131 utility pole which is used to calculate the rate is based on
132 records specific to pole plant rather than based on proration of
133 accumulated depreciation tracked at a higher aggregated plant
134 amount, sufficiently detailed data to support the pole specific
135 figure.
136 (c) Shall establish just and reasonable terms and
137 conditions for a broadband provider attachment which do not
138 discriminate between or among providers or any other attaching
139 entity and which are consistent with 47 U.S.C. s. 224 and any
140 Federal Communications Commission rule, regulation, or decision
141 adopted thereunder, as such existed on July 1, 2021, except
142 that:
143 1. If necessary to accommodate a broadband provider's new
144 attachment, the municipal electric utility shall rearrange,
145 expand, replace, or otherwise safely reengineer any utility pole
146 upon the request of the broadband provider. If the municipal
147 electric utility is required to replace a utility pole pursuant
148 to this subparagraph, the municipal electric utility may not
149 require a broadband provider to reimburse any costs associated
150 with such pole replacement beyond the recovery of its actual and
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151 reasonable costs of advancing the retirement of the existing
152 utility pole. Such costs shall be measured by all of the
153 following:
154 a. The net book value of the existing utility pole.
155 b. The incremental cost, if any, of installing a utility
156 pole with greater capacity than the utility pole the municipal
157 electric utility would have installed in the normal course of
158 its operations.
159 c. Any other incremental costs proved by the municipal
160 electric utility, provided that such incremental costs do not
161 include any costs associated with a utility pole the utility
162 would have installed at the same location.
163 2. The municipal electric utility may not prohibit the
164 broadband provider from using boxing techniques, extension arms,
165 attachments below existing attachments where space is
166 unavailable above existing attachments, temporary attachments,
167 or other methods or equipment, provided that such use complies
168 with the National Electric Safety Code or other applicable
169 safety codes.
170 3. With respect to a utility pole replacement, the
171 municipal electric utility must complete such pole replacement
172 and any other work necessary to accommodate the broadband
173 provider's attachment to the replaced pole within 90 days after
174 receiving a complete attachment request from a broadband
175 provider.
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176 (d) May not require a broadband provider to comply with
177 any utility pole attachment specifications that exceed the
178 specifications in the National Electric Safety Code, applicable
179 fire safety codes, or any building code or similar code of
180 general applicability for the protection of public health,
181 safety, or welfare which was adopted by the applicable local
182 governmental jurisdiction before the broadband provider filed a
183 utility pole attachment application. However, this section may
184 not be construed to expand the power of any local governmental
185 jurisdiction.
186 (4) A municipal electric utility or broadband provider may
187 submit a written request to negotiate any agreement or to amend,
188 modify, or renew any existing agreement addressing attachments
189 by the broadband provider to conform such agreements to this
190 section. The parties must negotiate in good faith for at least
191 60 days after the written request, after which either party may
192 petition the circuit court to determine rates, terms, and
193 conditions for the agreements consistent with this section. The
194 court shall make a determination within 180 days after the
195 filing of the petition for that determination. The court's
196 determination applies retroactively to attachments between the
197 date of the written request to negotiate and the date of the
198 commission's determination, and applies to the continuing terms
199 of all existing attachments that were installed before the
200 written request. Between the date of the written request to
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201 negotiate and the date of the court's determination:
202 (a) The terms and conditions of any existing agreement
203 addressing such attachments apply, subject to true-up, to put
204 the parties in the positions in which they would have been had
205 the court's determination been in effect on the date of the
206 written request to negotiate.
207 (b) In the absence of such existing agreement, unless the
208 parties agree otherwise, the court, within 30 days after the
209 petition for a determination, must establish interim rates,
210 terms, and conditions that will apply, subject to true-up, to
211 put the parties in the positions in which they would have been
212 had the court's determination been in effect on the date of the
213 written request to negotiate.
214 (5) A municipal electric utility or broadband provider may
215 seek any available remedies at law or equity for violations of
216 this section. In all cases involving this section, and to the
217 extent not otherwise provided by this section, the court shall
218 give effect to the provisions and intent of 47 U.S.C. s. 224 and
219 any Federal Communications Commission rules, regulations, or
220 decisions adopted thereunder, as such existed on July 1, 2021.
221 Section 3. This act shall take effect July 1, 2021.
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COMMERCE COMMITTEE
CS/HB 1239 by Rep. Tomkow
BROADBAND INTERNET INFRASTRUCTURE
AMENDMENT SUMMARY
APRIL 19, 2021
Amendment 1 by Rep. Tomkow (Strike-all):
• Provides for discounted rates and terms for the attachment of broadband
facilities onto municipal electric utility poles to reach unserved end users within a
utility’s service territory.
• Creates a grant program in the Florida Office of Broadband for the installation or
deployment of broadband Internet infrastructure to reach unserved areas of the
state.
• Updates provisions related to the Florida Office of Broadband.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1239 (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 Tomkow offered the following:
3
4 Amendment (with title amendment)
5 Remove everything after the enacting clause and insert:
6 Section 1. This act may be cited as the "Florida Broadband
7 Deployment Act of 2021."
8 Section 2. Part XV of chapter 288, Florida Statutes,
9 consisting of sections 288.9961, 288.9962, and 288.9963 is
10 created and entitled "Florida Office of Broadband."
11 Section 3. Section 364.0135, Florida Statutes, is
12 transferred, renumbered as section 288.9961, Florida Statutes,
13 and amended to read:
14 288.9961 364.0135 Promotion of broadband adoption; Florida
15 Office of Broadband.—
16 (1) LEGISLATIVE FINDINGS.—The Legislature finds that the
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Bill No. CS/HB 1239 (2021)
Amendment No. 1
17 sustainable adoption of broadband Internet service is critical
18 to the economic and business development of this the state and
19 is beneficial for libraries, schools, colleges and universities,
20 health care providers, and community organizations.
21 (2) DEFINITIONS.—As used in this part, unless otherwise
22 specified section, the term:
23 (a) "Broadband Internet service" means any service that
24 provides access to the Internet with a capacity for transmission
25 at a consistent speed of at least 25 megabits per second
26 download and 3 megabits per second upload.
27 (b)(a) "Department" means the Department of Economic
28 Opportunity.
29 (c) "Deployed" means that a provider meets either of the
30 following:
31 1. Currently provides broadband Internet service in a
32 specific geographic area; or
33 2. Is able to provide broadband Internet service in a
34 specific geographic area to a customer that requests that
35 service not later than 30 days after the customer requests
36 installation of that service and without an extraordinary
37 commitment of resources or construction charges or fees
38 exceeding an ordinary service activation fee. The 30-day time
39 period shall be extended to 60 days if permits are needed before
40 the broadband Internet service is installed and activated.
41 (d)(b) "Office" means the Florida Office of Broadband.
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Amendment No. 1
42 (e)(c) "Sustainable adoption" means the ability for
43 communications service providers to offer broadband Internet
44 services in all areas of this the state by encouraging adoption
45 and utilization levels that allow for these services to be
46 offered in the free market absent the need for governmental
47 subsidy.
48 (d) "Underserved" means a geographic area of the state in
49 which there is no provider of broadband Internet service that
50 offers a connection to the Internet with a capacity for
51 transmission at a consistent speed of at least 10 megabits per
52 second downstream and at least 1 megabit per second upstream.
53 (f) "Unserved" means a geographic area of the state in
54 which broadband Internet service is not deployed.
55 (3) STATE AGENCY.—The department is designated as the lead
56 state agency to facilitate the expansion of broadband Internet
57 service in this the state. The department shall work
58 collaboratively with private businesses and receive staffing
59 support and other resources from Enterprise Florida, Inc., state
60 agencies, local governments, and community organizations.
61 (4) FLORIDA OFFICE OF BROADBAND.—The Florida Office of
62 Broadband is created within the Division of Community
63 Development in the department for the purpose of developing,
64 marketing, and promoting broadband Internet services in this the
65 state. The office, in the performance of its duties, shall do
66 all of the following:
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Amendment No. 1
67 (a) Create a strategic plan that has goals and strategies
68 for increasing the use of broadband Internet service in this the
69 state. The plan must include a process to review and verify
70 public input regarding transmission speeds and availability of
71 broadband Internet service throughout the state.
72 (b) Build and facilitate local technology planning teams
73 or partnerships with members representing cross-sections of the
74 community, which may include, but are not limited to,
75 representatives from the following organizations and industries:
76 libraries, K-12 education, colleges and universities, local
77 health care providers, private businesses, community
78 organizations, economic development organizations, local
79 governments, tourism, parks and recreation, and agriculture.
80 These local technology planning teams shall work with rural
81 communities to help the communities determine their current
82 broadband Internet service availability, locate unserved and
83 underserved customers, identify assets relevant to broadband
84 deployment, build partnerships with broadband Internet service
85 providers, and identify opportunities to leverage assets and
86 reduce barriers to the deployment of public and private
87 broadband Internet service in the community. The teams or
88 partnerships must be proactive in fiscally constrained counties
89 in identifying and providing assistance with applying for
90 federal grants for broadband Internet service.
91 (c) Encourage the use of broadband Internet service,
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Bill No. CS/HB 1239 (2021)
Amendment No. 1
92 especially in the rural or, unserved, or underserved communities
93 of the state through grant programs having effective strategies
94 to facilitate the statewide deployment of broadband Internet
95 service. For any grants to be awarded, priority must be given to
96 projects that:
97 1. Provide access to broadband education, awareness,
98 training, access, equipment, and support to libraries, schools,
99 colleges and universities, health care providers, and community
100 support organizations.
101 2. Encourage the sustainable adoption of broadband
102 Internet service in primarily unserved underserved areas by
103 removing barriers to entry.
104 3. Work toward encouraging investments in establishing
105 affordable and sustainable broadband Internet service in
106 unserved underserved areas of this the state.
107 4. Facilitate the development of applications, programs,
108 and services, including, but not limited to, telework,
109 telemedicine, and e-learning to increase the usage of, and
110 demand for, broadband Internet service in this the state.
111 (d) Monitor, participate in, and provide input in
112 proceedings of the Federal Communications Commission and other
113 federal agencies related to the geographic availability and
114 deployment of broadband Internet service in the state as
115 necessary to ensure that this information is accurately
116 presented and that rural or, unserved, and underserved areas of
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Bill No. CS/HB 1239 (2021)
Amendment No. 1
117 the state are best positioned to benefit from federal and state
118 broadband deployment programs.
119 (e) Administer the Broadband Opportunity Program
120 established in s. 288.9962.
121 (5) ADMINISTRATION.—The department may:
122 (a) Apply for and accept federal funds for purposes of
123 this section.
124 (b) Enter into contracts necessary or useful to carry out
125 the purposes of this section.
126 (c) Establish any committee or workgroup to administer and
127 carry out the purposes of this section.
128 (d) Adopt rules to implement this part.
129 Section 4. Section 288.9962, Florida Statutes, is created
130 to read:
131 288.9962 Broadband Opportunity Program.—
132 (1) The Broadband Opportunity Program is established
133 within the office to award grants to applicants who seek to
134 expand broadband Internet service to unserved areas of this
135 state. The office must administer and act as fiscal agent for
136 the program and is responsible for receiving and reviewing
137 applications and awarding grants.
138 (2) Subject to appropriation, grants shall be awarded
139 under this section to fund the installation or deployment of
140 infrastructure that supports the provision of broadband Internet
141 service. State funds may not be used to install or deploy
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Amendment No. 1
142 broadband Internet service to a geographic area in which
143 broadband Internet service is already deployed by at least one
144 provider.
145 (3) Applicants eligible for grant awards include:
146 (a) Corporations, nonprofit corporations, limited
147 liability companies, general partnerships, and limited
148 partnerships that are organized under the laws of this state or
149 otherwise authorized to transact business in this state.
150 (b) Political subdivisions.
151 (c) Indian tribes.
152 (4) The office may not award, directly or indirectly,
153 grants under this section to a governmental entity or an
154 educational institution or affiliate to provide broadband
155 Internet service to any residential or commercial premises,
156 unless other broadband Internet service providers have not
157 deployed service to an unserved area.
158 (5) An eligible applicant shall submit a grant application
159 to the office on a form prescribed by the office. A grant
160 application must include the following information:
161 (a) A description of the project area.
162 (b) A description of the kind and amount of broadband
163 Internet service infrastructure that is proposed.
164 (c) Evidence demonstrating the unserved nature of the
165 project area.
166 (d) The number of households and businesses that would
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Bill No. CS/HB 1239 (2021)
Amendment No. 1
167 have access to broadband Internet service as a result of the
168 grant.
169 (e) A list of significant community institutions that
170 would benefit from the grant.
171 (f) The total cost of the project and the timeframe in
172 which it would be completed.
173 (g) A list identifying sources of funding or in-kind
174 contributions that would supplement any awarded grant.
175 (h) Any other information required by the office.
176 (6)(a) At least 30 days before the first day grant
177 applications may be submitted each fiscal year, the office shall
178 publish on its website the specific criteria and quantitative
179 scoring system it will use to evaluate or rank grant
180 applications. Such criteria and quantitative scoring system must
181 include the criteria set forth in subsection (8).
182 (b) Within 3 business days after the close of the grant
183 application process, the office shall publish on its website,
184 from each grant application submitted, the proposed unserved
185 areas to be served and the proposed broadband Internet speeds of
186 the areas to be served.
187 (c) A broadband Internet service provider that provides
188 existing service in or adjacent to a proposed project area may
189 submit to the office, within 45 days after publication of the
190 information under paragraph (b), a written challenge to an
191 application. The challenge shall contain information
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Amendment No. 1
192 demonstrating that:
193 1. The provider currently has deployed broadband Internet
194 service to retail customers within the project area;
195 2. The provider has begun construction to provide
196 broadband Internet service to retail customers within the
197 proposed project area within the timeframe proposed by the
198 applicant; or
199 3. The provider commits to providing broadband Internet
200 service to retail customers within the proposed project area
201 within the timeframe proposed by the applicant.
202 (d) Within 3 business days after the submission of a
203 written challenge, the office shall notify the applicant, in
204 writing, of the challenge.
205 (e) The office shall evaluate each challenge submitted
206 under this subsection. If the office determines that the
207 provider currently has deployed, has begun construction to
208 provide, or commits to provide broadband Internet service in the
209 proposed project area, the office may not fund the challenged
210 project.
211 (f) If the office denies funding to an applicant as a
212 result of a broadband Internet service provider's challenge and
213 the provider does not fulfill its commitment to provide
214 broadband Internet service in the unserved area, the office may
215 not consider another challenge from the provider for the next
216 two grant application cycles, unless the office determines that
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Amendment No. 1
217 the failure to fulfill the commitment was due to circumstances
218 beyond the provider's control.
219 (7)(a) In evaluating grant applications and awarding
220 grants, the office must give priority to applications that:
221 1. Offer broadband Internet service to important community
222 institutions, including, but not limited to, libraries,
223 educational institutions, public safety facilities, and health
224 care facilities;
225 2. Facilitate the use of telemedicine and electronic
226 health records;
227 3. Serve economically distressed areas of the state, as
228 measured by indices of unemployment, poverty, or population loss
229 that are significantly greater than the statewide average;
230 4. Provide for scalability to transmission speeds of at
231 least 100 megabits per second download and 10 megabits per
232 second upload;
233 5. Include a component to actively promote the adoption of
234 the newly available broadband Internet service in the community;
235 6. Provide evidence of strong support for the project from
236 citizens, government, businesses, and institutions in the
237 community;
238 7. Provide access to broadband Internet service to the
239 greatest number of unserved households and businesses;
240 8. Leverage greater amounts of funding for a project from
241 private sources; or
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242 9. Demonstrate consistency with the strategic plan adopted
243 under s. 288.9961.
244 (b) The office must endeavor to award grants to qualified
245 applications serving all regions of the state.
246 (8)(a) The office may not award any grant to an otherwise
247 eligible grant applicant to provide broadband Internet service
248 in a project area for which any other federal funding has been
249 awarded.
250 (b) A grant awarded under this section may not be used to
251 serve any retail end user that already has access to broadband
252 Internet service.
253 (c) A grant awarded under this section, when combined with
254 any state or local funds, may not fund more than 50 percent of
255 the total cost of a project.
256 (d) A single project may not be awarded a grant in excess
257 of $5 million.
258 (9) For each grant awarded, the office shall enter into an
259 agreement with the applicant. The agreement must specify the
260 total amount of the grant, performance conditions that must be
261 met to obtain the grant, the schedule of payment, and sanctions
262 that would apply for failure to meet performance conditions,
263 including, but not limited to, requiring the return of grant
264 funds.
265 (10) By January 1, 2023, and each year thereafter, the
266 office shall publish on its website and provide to the Governor,
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Amendment No. 1
267 the President of the Senate, and the Speaker of the House of
268 Representatives:
269 (a) A list of all grant applications received during the
270 previous fiscal year and for each application:
271 1. The results of any quantitative weighting or scoring
272 system the office used to award grants or rank the applications.
273 2. The grant amounts requested.
274 3. The grant amounts awarded, if any.
275 4. A report on the progress of each grant recipient in
276 acquiring and installing infrastructure that supports the
277 provision of broadband Internet service in the project areas for
278 which that grant was awarded and in securing adoption of such
279 service in each project area.
280 (b) All written challenges filed during the previous year
281 and the results of those challenges.
282 Section 5. Section 288.9963, Florida Statutes, is created
283 to read:
284 288.9963 Attachment of broadband facilities to municipal
285 electric utility poles.--
286 (1) The Legislature finds that there is a need for
287 increased availability of broadband Internet access throughout
288 the state, particularly in areas where citizens do not have
289 access to acceptable Internet download and upload speeds, or any
290 access at all. The lack of Internet connectivity and widespread
291 broadband availability is detrimental to the growth of the
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Amendment No. 1
292 economy, access to telehealth, and educational opportunities.
293 The federal government has provided vast resources for private
294 cable and other broadband providers to expand the deployment of
295 broadband Internet infrastructure in areas where Internet access
296 and broadband Internet services are inadequate or non-existent.
297 (2) As used in this section, the term:
298 (a) “Broadband provider” means a person or entity who
299 provides fixed broadband Internet service.
300 (b) “Broadband service” means a service that provides high
301 speed access to the Internet at a rate of at least 25 megabits
302 per second in the downstream direction and at least 3 megabits
303 per second in the upstream direction.
304 (c) “Safety and reliability standards” includes all
305 applicable engineering, reliability, and safety standards
306 governing the installation, maintenance, and operation of
307 facilities and poles and the performance of all work in and
308 around electric utility facilities, including particular utility
309 standards made available to a broadband provider, and shall
310 include the most current versions of the National Electric
311 Safety Code, the National Electric Code, and the regulations of
312 the Occupational Safety and Health Administration, and other
313 reasonable non-discriminatory safety and engineering
314 requirements, including, but not limited to requirements
315 addressing overloading of electric utility facilities.
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316 (d) “Underserved” means there is no retail access to the
317 Internet at speeds of at least 25 megabits per seconds for
318 downloading and 3 megabits per second for uploading.
319 (e) “Unserved” means that there is no retail access to the
320 Internet at speeds of at least 10 megabits per seconds for
321 downloading and 1 megabits per second for uploading.
322 (f) “Wireline attachment” means a wire or cable and
323 associated equipment affixed to a utility pole in the
324 communications space of the pole.
325 (3) After July 1, 2021, a broadband provider shall
326 receive a promotional rate of $1 per wireline attachment per
327 pole per year for any new attachment necessary to make broadband
328 service available to an unserved or underserved end user within
329 a municipal electric system service territory for the time
330 period specified herein.
331 (a) A broadband provider who wishes to make wireline
332 attachments subject to the promotional rate shall submit an
333 application, including a route map, to the municipal electric
334 utility specifying which wireline attachments on which utility
335 poles are necessary to extend broadband service to unserved and
336 underserved end users and therefore qualify for the promotional
337 rate set forth herein, together with such information necessary
338 to identify which unserved or underserved end users within the
339 municipal electric utility’s service territory will gain access
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Amendment No. 1
340 to broadband service as a result. A copy of such application and
341 plan shall also be submitted simultaneously to the Office.
342 (b) A municipal electric utility shall report to the
343 Office which attachments on which utility poles were made
344 available to broadband providers subject to the promotional
345 rate, together with any information available to it regarding
346 which of its municipal electric utility customers do and do not
347 have access to broadband service and whether they are unserved
348 or underserved.
349 (c) A broadband provider who makes application to attach
350 under the promotional rate shall make all reasonable efforts to
351 make broadband service available to the unserved or underserved
352 municipal electric utility customers identified in the
353 application. If a broadband provider fails to make broadband
354 service available to those customers within twelve months, it
355 may be required to pay the prevailing rate for those attachments
356 that failed to make broadband service available to the intended
357 customers.
358 (d) Except to the extent provided in this section,
359 wireline attachments which are subject to the promotional rate
360 shall conform to all other terms and conditions of existing pole
361 attachment agreements between the broadband provider and the
362 municipal electric utility. If no such agreement exists, the
363 parties shall have 90 days to enter into a pole attachment
364 agreement for all other terms and conditions of attachment.
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365 (e) The promotional rate of $1 per wireline attachment per
366 pole per year shall apply to all pole attachments made pursuant
367 to this section until July 1, 2024.
368 (4) All wireline attachments must comply with safety and
369 reliability standards; provided, however, wireline attachments
370 and their replacements, which complied with safety and
371 reliability standards when installed, need not be modified to
372 comply with new requirements except as may be necessary for
373 safety reasons, as reasonably determined by the municipal
374 electric utility.
375 (5) If the municipal electric utility is required to
376 replace a utility pole due to a broadband provider’s attachment,
377 the municipal electric utility may require, as a condition to
378 pole attachment, that the broadband provider reimburse all
379 reasonable and nondiscriminatory costs attributable solely to
380 the new attachment minus the salvage value of the removed pole,
381 if positive. The municipal electric utility may not require a
382 utility pole to be replaced to accommodate a broadband
383 provider’s attachment except where necessary to comply with
384 applicable engineering and safety standards. With respect to
385 such replacement poles, if the replacement is necessary to
386 correct an existing violation, or to bring the pole into
387 compliance with any changes in applicable standards, or because
388 the pole is at the end of its useful life, such replacement cost
389 shall not be charged to the broadband provider. As used in this
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Bill No. CS/HB 1239 (2021)
Amendment No. 1
390 subsection, “useful life” means not less than 30 years for wood
391 utility poles and 50 years for concrete, steel, ductile iron,
392 and all other utility poles.
393 (6) No municipal electric system may increase the fees
394 charged to broadband providers for pole attachments as of the
395 effective date of this act prior to July 31, 2022.
396 Section 6. This act shall take effect July 1, 2021.
397
398 -----------------------------------------------------
399 T I T L E A M E N D M E N T
400 Remove everything before the enacting clause and insert:
401 An act relating to broadband Internet deployment; creating pt.
402 XV of ch. 288, F.S.; relating to the Florida Office of
403 Broadband; transferring, renumbering, and amending s. 364.0135,
404 F.S.; revising and providing definitions relating to broadband
405 Internet service; revising duties of the Florida Office of
406 Broadband; providing rulemaking authority; creating s. 288.9962,
407 F.S.; creating the Broadband Opportunity Program within the
408 Department of Economic Opportunity; providing for administration
409 of the program; providing requirements for grant awards;
410 providing eligibility requirements; providing application
411 requirements; requiring the publication of certain information
412 related to grant applications and grant awards on a website;
413 authorizing grant applications to be challenged under certain
414 circumstances; specifying contents of a challenge; providing
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1239 (2021)
Amendment No. 1
415 procedures to be used by the office in evaluating challenges;
416 providing direction for prioritizing grant funding; specifying
417 conditions for the award of grants; requiring that office to
418 enter into an agreement containing specified information with
419 each grant recipient; requiring the office to publish specified
420 information annually on its website; requiring specified
421 information to be delivered to the Governor and Legislature;
422 creating s. 288.9963, F.S.; providing legislative findings;
423 providing definitions; establishing a promotional rate and
424 related terms for certain attachments of broadband facilities to
425 municipal electric utility poles; establishing cost
426 responsibility for replacement utility poles in certain
427 circumstances; providing an effective date.
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CS/HB 1307
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1307 Telephone Solicitation
SPONSOR(S): Regulatory Reform Subcommittee, Beltran
TIED BILLS: IDEN./SIM. BILLS: SB 1682
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform Subcommittee 16 Y, 0 N, As CS Thompson Anstead
2) Civil Justice & Property Rights Subcommittee 17 Y, 0 N Mathews Jones
3) Commerce Committee Thompson Hamon
SUMMARY ANALYSIS
Chapter 501, part IV, the Florida Telemarketing Act (FTA), requires non-exempt businesses engaged in
telemarketing and their salespeople to be licensed by the Florida Department of Agriculture and Consumer
Services (DACS) before operating in Florida. The law prohibits telephonic sales calls that use an automated
system for the selection or dialing of telephone numbers or the playing of a recorded message (robocall) when
a connection is completed. However, the law allows the use of an automated telephone dialing system with live
messages if:
The calls are made or messages given solely in response to calls initiated by the persons to whom the
automatic calls or live messages are directed;
The telephone numbers selected for automatic dialing have been screened to exclude any telephone
subscriber who is included on DACS’ then-current “no sales solicitation calls” listing or any unlisted
telephone number; or
The calls concern goods or services that have been previously ordered or purchased.
The bill prohibits robocalls when a connection is completed to a number called without the prior express
written consent of the called party. Such consent must include a clear and conspicuous disclosure informing
the called party that by executing the agreement, the called party is agreeing to receive automated telephonic
sales calls, but is not required to sign or enter into such an agreement as a condition of purchasing any
property, goods, or services.
In addition, the bill:
Authorizes a called party to revoke his or her express written consent through any reasonable means
clearly expressing a desire to receive no further calls, texts, or messages.
Clarifies that the use of an automated telephone dialing system is not prohibited if the calls or
messages are made in response to calls “originally” initiated by the persons to whom the calls or
messages are directed, and clarifies that repeated calls in response to a call originally initiated by a
called party are not allowed.
Clarifies that the use of an automated telephone dialing system is not prohibited if the calls concern the
order, purchase, or delivery of goods or services that have previously been ordered by the called party,
and prohibits calls made solely because the called party previously conducted business with the person
initiating the call.
Removes the requirement that calls be screened by using the DACS do not call list prior to making calls
related to goods or services previously purchased.
Provides a rebuttable presumption that such calls made to a Florida area code are considered to be
made to a resident of, or person in, this state.
The bill does not appear to have a fiscal impact on state or local government.
The effective date of the bill is July 1, 2021.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
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DATE: 4/18/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Florida Telemarketing Act
Chapter 501, part IV, the Florida Telemarketing Act (FTA), requires non-exempt businesses engaged in
telemarketing and their salespeople to be licensed by the Florida Department of Agriculture and
Consumer Services (DACS) before operating in Florida. Certain exempt entities must have a valid
affidavit of exemption on file prior to operating in Florida. There are approximately 28 exemptions,
including, but not limited to: soliciting for religious, charitable, political or educational purposes,
research companies, newspapers, book and video clubs, cable television, and persons or companies
with whom the consumer has a prior business relationship.1
The FTA generally requires businesses that solicit the sale of consumer goods or services to:
Be licensed;2
Post a form of security;3
License all of their salespeople;4 and
Provide DACS with a list of all telephone numbers used to make sales calls.5
An application for licensure as a telemarketer must include the applicant’s identifying information, prior
experience in the field, criminal and administrative history, especially relating to fraud, theft, or unfair
and deceptive trade practices, phone numbers from which the telemarketer will make sales calls, and
parent or affiliate entity under which it will transact business, if applicable.6
Additionally, a telemarketer applicant must submit with the application:
A script that will be used by its salespersons during calls, or other related literature;
The identity, address, date of birth, and alias of each of the applicant’s principal officers,
directors, trustees, shareholders, owners, partners, office managers, and salespersons who are
employed by or affiliated with the applicant; and
A $1,500 licensing fee.7
In Florida, it is unlawful for telemarketers to:
Accept novelty payments.8
Employ or be affiliated with an unlicensed salesperson.
Be employed by or affiliated with an unlicensed commercial telephone seller.
Operate without a license.
Make calls before 8 a.m. or after 9 p.m. local time at the called person’s location.
Fail to provide the call recipient with their name and telephone number.9
1
S. 501.604, F.S.
2
S. 501.605, F.S.
3
Section 501.611, F.S., requires a $50,000 bond, irrevocable letter of credit issued for the applicant, or a certificate of deposit in favor
of the Department for payment on findings of fraud, misrepresentation, breach of contract, or other violation by the applicant.
4
Section 501.607, F.S.
5
Section 501.605, F.S.
6
S. 501.605(2), F.S.
7
S. 501.605(5)(b), F.S.
8
S. 501.603(8), F.S., defines a “novelty payment” as a payment method that does not have systematic monitoring and includes
remotely created checks, remotely created payment orders, cash-to-cash money transfers (such as Western Union) and cash reload
mechanisms (such as MoneyPak or ReloadIt). Novelty payment methods are not systematically monitored, have little to no consumer
protection in the case of fraud or theft, and are used frequently in scams and other fraudulent activity.
9
S. 501.616, F.S.
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Violations of the FTA are punishable by a civil fine of up to $10,000 per violation,10 the imposition of
criminal penalties, and up to a third degree felony with repeat violations constituting a second degree
felony.11 DACS and the office of the state attorney have investigative authority, including the power to
subpoena witnesses if a violation occurs.12 Reasonable attorney’s fees and costs may be awarded to
the prevailing party in a civil action as part of a judgment or administrative order.13
Florida Do Not Call Act
A component of the FTA, the Florida Do Not Call Act, also known as the "Do Not Call” list (list),
prohibits unsolicited phone calls and text messages from telemarketers. Residents who do not wish to
receive sales calls may have their residential, mobile, or paging device telephone number included on
the list.14 DACS maintains the list, it is free to register, and a registered number remains on the list
indefinitely.15
Telephone solicitors16 are prohibited from making telephonic sales calls to consumers who register for
the list. A “telephonic sales call” is a telephone call, text message, or voicemail transmission to a
consumer for the purpose of soliciting a sale of any consumer goods or services, soliciting an extension
of credit for consumer goods or services, or obtaining information that will or may be used for the direct
solicitation of a sale of consumer goods or services or an extension of credit for such purposes.17
In addition to those consumers who are registered for the list, a telephone solicitor may not call or text a
consumer who previously communicated to the telephone solicitor that they do not wish to be
contacted. Businesses and charities are required to maintain a list of consumers who have made a do-
not-call registration request, and it is a violation to call a consumer who has asked to be placed on the
company's do-not-call list.18
When a telephone number is made available through a caller ID service during a telephonic sales call,
the solicitor must ensure that the number is capable of receiving phone calls, and that the dialing of the
number will connect the call recipient with the telephone solicitor or the seller on behalf of which the
phone call was placed.19
Anyone who receives an unsolicited sales call can report the call to DACS using the online Do Not Call
Complaint Form.20
A telephone solicitor who violates the provisions of Florida’s “Do Not Call” program is currently subject
to an injunction and a civil penalty21 with a maximum fine of $10,000 per violation, or an administrative
fine22 with a maximum of $1,000 per violation. Additionally, a telephone solicitor may be subject to
responsibility for the consumer’s attorney fees and costs.
10
S. 501.619, F.S.
11
S. 501.623, F.S.
12
S. 501.617, F.S.
13
S. 501.621, F.S.
14
See s. 501.059, F.S., FDACS, Florida Do Not Call, https://www.fdacs.gov/Consumer-Resources/Florida-Do-Not-Call (last visited
Mar. 30, 2021). The Florida No Sales Solicitation Act added specific language to prohibit unwanted sales texts.
15 Department of Agriculture and Consumer Services, Florida Do Not Call, https://www.fdacs.gov/Consumer-Resources/Florida-Do-Not-Call (last
visited April 15, 2021).
16
Section 501.059(1)(f), F.S., defines “Telephone solicitor” as “a natural person, firm, organization, partnership, association, or
corporation, or a subsidiary or affiliate thereof, doing business in this state, who makes or causes to be made a telephonic sales call,
including, but not limited to, calls made by use of automated dialing or recorded message devices.”
17
S. 501.059(1)(g), F.S.
18
S. 501.059(5), F.S.
19
S. 501.059(8)(c), F.S.
20
FDACS, http://www.freshfromflorida.com/Consumer-Resources/Florida-Do-Not-Call (last visited Mar. 30, 2021).
21
s. 501.059(9)(a), F.S.
22
s. 501.059(9)(b), F.S.
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Telephone Consumer Protection Act (TCPA) History
In an effort to address a growing number of telephone marketing calls, Congress enacted the
Telephone Consumer Protection Act (TCPA) in 1991. The TCPA restricts the making of telemarketing
calls and the use of automatic telephone dialing systems and artificial or prerecorded voice messages.
The rules apply to common carriers as well as to other marketers. In 1992, the Commission adopted
rules to implement the TCPA, including the requirement that entities making telephone solicitations
institute procedures for maintaining company-specific do-not-call lists.23
In July 2015, the Federal Communications Commission (FCC) established rules indicating that
telephone carriers can block unwanted calls at the request of consumers.24 Following the FCC’s ruling,
the National Association of Attorneys General (NAAG) called upon the major telephone carriers to do
more to provide these services to consumers.25 Currently there are a number of call-blocking
applications that provide some relief from unwanted and spam calls.26
On November 16, 2017, the FCC adopted new rules to allow voice service providers to proactively
block certain types of robocalls that are likely to be fraudulent because they come from certain types of
phone numbers, including those that do not or cannot make outgoing calls.27 For example, perpetrators
have used IRS phone numbers that do not dial out to impersonate the tax agency, informing the people
who answer that they are calling to collect money owed to the U.S. government. Such calls appear to
be legitimate to those who receive them and can result in fraud or identity theft. Service providers now
can block such calls, as well as calls from invalid numbers, such as those with area codes that do not
exist, from numbers that have not been assigned to a provider, and from numbers allocated to a
provider but not currently in use.28
The FCC requires telemarketers to transmit caller identification information, including the number and
name of the caller. The telephone number provided must permit any individual to make a do-not-call
request during regular business hours. It also provides that any person or entity that engages in
telemarketing is prohibited from blocking the transmission of caller identification information. However,
tax-exempt nonprofit organizations are not required to comply with these rules.29
With regard to telephone carriers, the FCC allows carriers to offer their customers external call-blocking
apps on their landlines and allows carriers to block certain illegal robocalls directly. In addition, in
December 2019, Congress enacted the “TRACED Act” to aid enforcement efforts between law
enforcement agencies and the private sector on traceback issues, and required the FCC to issue rules
“for the registration of a single consortium that conducts private-led efforts to trace back the origin of
suspected unlawful robocalls.” In July 2020, the FCC designated the US Telecom-led Industry
Traceback Group (ITG) as the Official Consortium for coordinating industry-led efforts to trace back the
origin of suspected unlawful robocalls.30
23
Federal Communications Commission, FCC Actions on Robocalls, Telemarketing, https://www.fcc.gov/general/telemarketing-and-
robocalls (last visited Mar. 30, 2021).
24
Declaratory Ruling and Order, In the Matter of Rules and Regulations Implementing the Telecommunications Consumer Protection
Act of 1991, 30 FCC Rcd. 7961 (July 10, 2015).
25
National Association of Attorneys General, Do Not Call: The History of Do Not Call and How Telemarketing Has Evolved,
https://www.naag.org/consumer-protection/attorney-general-journal/do-not-call-the-history-of-do-not-call-and-how-telemarketing-
has-evolved/ (last visited Mar. 30, 2021).
26
CTIA, The Wireless Association, How to Stop Robocalls, https://www.ctia.org/consumer-tips/robocalls (last visited Mar. 30, 2021).
27 32 FCC Rcd 9706 (11).
28
FCC, Stop Unwanted Calls and Texts, https://www.fcc.gov/consumers/guides/stop-unwanted-calls-and-texts (last visited Mar. 30,
2021).
29
47 C.F.R. § 64.1601.
30
USTelecom The Boradband Association, FCC Names USTelecom’s Industry Traceback Group as Official Robocall Traceback
Consortium, https://www.ustelecom.org/fcc-names-ustelecoms-industry-traceback-group-as-official-robocall-traceback-consortium/
(last visited Mar. 30, 2021).
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According to the ITG’s first annual report, in 2019, over 100 companies participated in over 1,000 ITG
traceback investigations, implicating more than 10 million illegal robocalls and resulting in more than 20
subpoenas and/or civil investigative demands from federal and state enforcement agencies.31
The ITG reported in a letter to the FCC on November 13, 2020, that about 100 providers have failed to
cooperate with the ITG, including approximately 30 that are based in the United States. 32 The ITG
encouraged the FCC to bring aggressive enforcement against robocallers and voice service providers
that routinely refuse to participate in the traceback process.33
In its Fourth Report and Order on Advanced Methods to Target and Eliminate Unlawful Robocalls
released December 30, 2020, the FCC required “all voice service providers to respond to traceback
requests from the FCC, civil and criminal law enforcement and the Consortium.” 34
National Do Not Call Registry
Although individual states were first to address consumers’ requests to stop unwanted telemarketing
calls,35 the federal government soon followed with a National Do Not Call Registry in 2003.36 In July
2003, the federal government issued a report and order establishing the National Do Not Call registry.
The national registry covers all telemarketers (with the exception of certain nonprofit organizations),
and applies to both interstate and intrastate calls. The registry is administered by the FTC. To reduce
the number of hang-up and dead air calls consumers experience, the Commission’s telemarketing rules
also contain restrictions on the use of autodialers and requirements for transmitting caller ID
information.
As the National Do Not Call Registry has gained popularity, some states have decided to forgo the
expense of maintaining their own lists. As of September 2017, only 12 states maintained their own Do
Not Call lists: Colorado, Florida, Indiana, Louisiana, Massachusetts, Mississippi, Missouri, Oklahoma,
Pennsylvania, Tennessee, Texas and Wyoming.37
Constitutionality of Do Not Call Registries
Do Not Call registries have been subject to numerous state and federal lawsuits challenging their
constitutionality. These suits have failed and the National Registry has been upheld. The courts have
found that the Do Not Call Registry is a reasonable restriction on commercial speech and that the FTC
is authorized to promulgate rules for the registry. The Tenth Circuit Court of Appeals has stated, “the
do-not-call registry prohibits only telemarketing calls aimed at consumers who have affirmatively
indicated that they do not want to receive such calls and for whom such calls would constitute and
invasion of privacy.” Thus, the government may have a role in restricting the ability of a telemarketer to
reach a household via telephone, and because the government has left the ultimate decision of
whether or not to be placed on the registry up to the individual, the government did not restrict the First
Amendment rights of the solicitor.38
31
InsideArm, The Latest Developments in the World of Call Delivery, https://www.insidearm.com/news/00047073-latest-
developments-world-call-delivery/ (last visited Mar. 30, 2021).
32
USTelecom, Enforcement Bureau Requests Information on the Status of Private-Led
Traceback Efforts of Suspected Unlawful Robocalls, EB Docket No. 20-195, Nov. 13, 2020,
https://docs.fcc.gov/public/attachments/DOC-368957A2.pdf (last visited Mar. 30, 2021).
33
InsideArm, The Latest Developments in the World of Call Delivery, https://www.insidearm.com/news/00047073-latest-
developments-world-call-delivery/ (last visited Mar. 30, 2021).
34
FCC, Fourth Report and Order, Dec. 29, 2020, https://docs.fcc.gov/public/attachments/FCC-20-187A1.pdf (last visited Mar. 30,
2021).
35
At least 28 states, starting with Florida in 1987, have implemented Do Not Call registries.
36
Federal Trade Commission, National Do Not Call Registry, https://www.donotcall.gov/ (last visited Mar. 30, 2021).
37
Donald Peterson, TCPA – Telephone Consumer Protection Act, State Do Not Call Lists, https://tcpa.mobi/state-do-not-call-
list/#:~:text=Today%20(September%2C%202017)%2C,and%20Wyoming, (last visited Apr. 15, 2021).
38
Mainstream Marketing Services Inc v. Federal Trade Commission, 358 F.3d 1228 (10th Cir. 2004).
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Claims of preemption have also been unsuccessful. The TCPA’s non-preemption clause,39 often
referred to as the savings clause, has been relied upon by courts to uphold states’ Do Not Call
Registries. The clause states that: “[n]othing in this section or in the regulations prescribed under this
section shall preempt any State law that imposes more restrictive intrastate requirements or regulation.”
The clause indicates specific types of actions that a state may prohibit or place more restrictive
regulations on, such as sending unsolicited advertisements via fax, regulation of the use of automatic
dialing systems and prerecorded messages, and the making of telephone solicitations.40
The TPCA is silent on a state’s ability to place regulations that are more stringent than the TCPA
requirements for interstate calls.41 However, at least one court has held that state regulations and
prohibitions of telemarketing can cross state lines.42
Caller ID and “Spoofing”
“Spoofing” is the practice of altering or manipulating the caller ID information that is received in
conjunction with an incoming telephone call. In the past, caller ID services were not common and
spoofing required special equipment or a relatively high degree of technical sophistication. However,
advances in technology, such as the proliferation of cellular phones, cell phone applications, and the
widespread availability of Voice over Internet Protocol (VoIP) allows anyone to inexpensively spoof his
or her caller ID using the services of a third-party spoofing provider.43 For example, one such spoofing
provider allows a consumer to download an app on their smartphone, purchase credits towards call
time, and simply input the number that they want displayed on the receiving end in order to place an
untraceable, spoofed call.44
In response to the growing practice of spoofing, Congress amended the TCPA to add the Truth in
Caller ID Act of 2009. Under the Act and FCC rules, a person or entity is prohibited from transmitting
false or misleading caller ID information “with the intent to defraud, cause harm, or wrongly obtain
anything of value,” and carries a penalty of up to $10,000 for each violation.45 However, spoofing is not
illegal when no harm is intended or caused, or if the caller has legitimate reasons to hide his or her
information. Examples may include law enforcement agencies working on cases, victims of domestic
abuse, or doctors who wish to discuss private medical matters.46
In 2008, Florida passed its own anti-spoofing legislation, The Florida Caller ID Anti-Spoofing Act
(2008).47 The Act prohibits any person from:
Making a call with knowledge that false information was entered into a telephone caller ID
system with the intent to deceive, defraud, or mislead the call’s recipient; and
Entering false information into a telephone caller ID system “with the intent to deceive,
defraud, or mislead” the call’s recipient.
However, a U.S. District Court in Miami found that Florida’s Caller ID Anti-Spoofing Act (2008) violated
the Commerce Clause of the United State Constitution because it had the effect of controlling spoofing
practices that took place entirely outside the state, wherein individuals or companies could not
ascertain what telephone numbers are subject to Florida law, and would have to subject all of their call
39
47 U.S.C. § 227(f)(1).
40
National Association of Attorneys General, Do Not Call: The History of Do Not Call and How Telemarketing Has Evolved,
NAGTRI Journal, Vol. 1 No. 4.
41
47 U.S.C. s. 227 (f)(1).
42
See Patriotic Veterans, Inc. v. Indiana, 736 F.3d 1041 at 1044-45 (7th Cir. 2013) and Patriotic Veterans, Inc. v. State of Indiana,
No. 16-2059 (7th Cir. 2017)( “Preventing automated messages to persons who don’t want their peace and quiet disturbed is a valid
time, place, and manner restriction.”).
43
See FCC 11-100, Rules and Regulations Implementing the Truth in Caller ID Act of 2009, WC Docket No. 11-39, (June 22, 2011),
at 9116, https://apps.fcc.gov/edocs_public/attachmatch/FCC-11-100A1_Rcd.pdf (last visited Mar. 30, 2021).
44
Business Insider, It’s Surprisingly Easy for a Hacker to Call Anyone From Your Personal Phone Number (March 1, 2016),
http://www.businessinsider.com/phone-number-spoofing-2016-2 (last visited Mar. 30, 2021).
45
47 U.S.C. § 227(e).
46
FCC, Caller ID Spoofing, https://www.fcc.gov/consumers/guides/spoofing-and-caller-id (last visited Mar. 30, 2021).
47
s. 817.487, F.S. (2008).
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practices to Florida law to avoid liability.48 Similarly, in 2011, a federal court in Mississippi struck
Mississippi’s anti-spoofing law, which was substantially similar to Florida’s.49
Spam Robocalls
According to the American Association of Retired Persons (AARP), robocalls have become an
epidemic. YouMail, a company that provides call-blocking and call-management services, estimates
that there were 58.5 billion robocalls in the U.S. in 2019 and that 44 percent of them were placed by
scammers.50
A February 2021 survey found that 46 percent of Americans reported receiving spam phone calls on
their cell phone every day, and another 24 percent receiving them multiple times per week.51
Scammers often use caller ID spoofing to mask their true location and make it appear the call is from a
legitimate or local number to raise the odds of the called party to answer. What follows is a robotic
voice on the other end claiming to represent a utility, a name-brand company or a government agency
(such as the Social Security Administration or the Internal Revenue Service). It might offer a free
cruise, inexpensive health insurance or a low-interest loan. Answering and/or engaging with the call
may lead to a live scammer, who realizes they have found a “live” number, and thus may call
repeatedly.52
Many robocalls are legal. The FCC allows such robocalls for informational or noncommercial purposes,
such as polling, political campaigning and outreach by nonprofit groups.
Advances in technology have magnified fundamental flaws in the American phone system, enabling
unrelenting robocalls from untraceable origins. As a result, it is incredibly profitable to use spam calls to
drive business whether the caller is a scammer or an actual business using telemarketing to increase
sales.53
Consent and Revocation
The TCPA prohibits a telemarketer from using an automatic telephone dialing system (ATDS) to place
a call or send a text message to a cell phone without the recipient’s “prior express consent.”54 The
type of consent depends on the nature of the call or text. Consent generally can be revoked by any
reasonable method. However, some courts recently have considered whether revocation may be
restricted in circumstances where the consent is included on a bilateral agreement.55
48
TelTech Systems, Inc. v. McCollum, No. 08-61664-CIV-MARTINEZ-BROWN (S.D. Fla. Filed Oct. 16, 2008).
49
TelTech Systems, Inc. v. Barbour, 866 F. Supp. 2d 571 (S.D. Miss. 2011), aff’d sub nom Teltech Systems, Inc. v. Bryant, 702 F. 2d
232 (5th Cir. 2012).
50
American Association of Retired Persons, Robocalls, https://www.aarp.org/money/scams-fraud/info-
2019/robocalls.html?CMP=KNC-DSO-Adobe-Google-FRD-Ongoing-Robocalls-NonBrand-Exact-
Robocalls&gclid=EAIaIQobChMIlvmq_4Sr7wIVFYvICh2RAwjqEAAYAiAAEgJD4vD_BwE&gclsrc=aw.ds (last visited Mar. 30,
2021).
51
Simon van Zuylen-Wood, How Robo-Callers Outwitted the Government and Completely Wrecked the Do Not Call List (Jan. 11,
2018), https://www.washingtonpost.com/lifestyle/magazine/how-robo-call-moguls-outwitted-the-government-and-completely-
wrecked-the-do-not-call-list/2018/01/09/52c769b6-df7a-11e7-bbd0-9dfb2e37492a_story.html?utm_term=.8a6e6ea55f32 (Last visited
Mar. 30, 2021).
52
AARP, supra note 49.
53
Supra note 50.
54
47 U.S.C. § 227(b)(1)(A)(iii).
55
The National Law Review, Consent and Revocation Under the TCPA, https://www.natlawreview.com/print/article/consent-and-
revocation-under-tcpa (last visited Mar. 30, 2021).
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There are two types of prior consent provided under the TCPA:
Prior express consent is required to place autodialed, non-solicitation calls or texts to a cell
phone.
Prior express written consent is a heightened form of consent, must be evidenced by a
written agreement signed by the call recipient, and is required to place autodialed telemarketing
oradvertising calls or texts to a cell phone. The written agreement must include a clear and
conspicuous disclosure informing the consumer signing that:
o By signing the agreement, the consumer is authorizing autodialed telemarketing or
advertising calls or texts; and
o The consumer is not required to sign the agreement as a condition of purchasing any
property, goods, or services.56
Prior express consent can be written or verbal. Voluntarily providing one’s cellular number also
constitutes prior express consent where:
The individual gives “prior express consent” to be called or texted at the number provided;
The individual has provided his or her number to the party calling or texting; and
There is some relation between the communications and the reason for which an individual
provided his or her number.57
Prior express written consent is required for calls or texts to cell phones that introduce an
advertisement,58 or constitute “telemarketing”59 and are sent using an ATDS. The TCPA’s advertising
prong merely requires introducing at the most basic level the commercial availability of a service. In
similar fashion, telemarketing occurs when the context of a text or call indicates that it was initiated and
transmitted to a person for promoting property, goods, or services. Neither the TCPA nor its
implementing regulations require an explicit mention of a good, product, or service where the
implication of an improper purpose is clear from the context.60
Revocation of consent is controlled by the consenting party, and may be communicated orally or in
writing by any reasonable means. However, where consent is contractually provided, as in credit
agreements, the parties can bargain to require mutuality or particular revocation methods. Recently, a
number of courts have addressed whether a consumer may unilaterally revoke consent when it is a
term in a bargained-for contract.61
In 2017, the Second Circuit Court of Appeal held that a consumer may not unilaterally revoke
consent in a bargained-for, bilateral contract.62 The court based its decision on “black-letter” contract
law, referring to a fundamental aspect of contractual relationships that one party may not alter or
revoke a term of a bilateral agreement without the other party’s consent. The court found that a
consumer, having consented to be contacted via an auto-dialer, could not unilaterally revoke consent
without the caller’s permission. Notably, the court distinguished case law from the Third and Eleventh
Circuit Courts of Appeal, where consumers retained their ability to revoke consent because it was given
in credit applications, rather than as part of a bilateral contract.63
In 2018, a United States District Court in Florida also held that consent provided by contract cannot be
unilaterally revoked.64 The court noted that no provision in the TCPA indicates that contractually-
granted consent can be unilaterally revoked where it would contradict black-letter contract law. The
56
Id.
57
Federal Communications Commission, Rules & Regulations Implementing the TCP Act of 1991 et al., 30 FCC Rcd at 7991–92.
58
47 C.F.R. § 64.1200(f)(1), defines an “advertisement” as “any material advertising the commercial availability or quality of any
property, goods, or services,” and “telemarketing” is defined as “the initiation of a telephone call or message for the purpose of
encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.”
59
47 C.F.R. § 64.1200(f)(12).
60
The National Law Review, supra note 54.
61
Id.
62
Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 53 (2d Cir. 2017).
63
The National Law Review, supra note 54.
64
Medley v. Dish Network, LLC, Case No. 8:16-cv-2534-T-36TBM, 2018 WL 4092120, at *10 (M.D. Fla. Aug. 27, 2018).
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court held that a consumer who has consented to auto-dialed communication in a contract for services
cannot later revoke such consent.65
However, other courts have disagreed, rejecting the argument that consent is irrevocable. In 2018, a
United States District Court in Tennessee adopted the general rule that consumer consent may be
revoked at any time by “any reasonable means.”66 The court held that consumers retain the ability to
revoke their prior consent despite having a bilateral agreement with the caller. Other courts have also
allowed for revocation of consent by any means in the absence of a contractual restriction on the
means by which a consumer may revoke consent.67
In December 2020, the U.S. Supreme Court heard oral arguments in a landmark case that may
determine whether consumers can sue a company for using an ATDS to text or call the consumers at a
phone number saved in the company’s system. At issue is the meaning of the TCPA’s prohibition on
using an ATDS to transmit communications to cell phones. The question before the Supreme Court is
“whether the definition of ATDS in the TCPA encompasses any device that can ‘store’ and
‘automatically dial’ telephone numbers, even if the device does not use a random or sequential number
generator.”68
Currently, the TCPA rules require telemarketers to:
Obtain prior express written consent from consumers before robocalling them;
No longer be able to use an "established business relationship" to bypass the consent
requirement; and
Provide an automated, interactive "opt-out" mechanism during each robocall so consumers can
immediately tell the telemarketer to stop calling.69
The TCPA includes a private right of action.70 A caller who places a call to a cell phone without consent
using an ATDS is subject to $500 in damages per call. The damages amount is $1,500 per call if the
court finds that the defendant willfully or knowingly committed the violation.71
The Florida telephone solicitation law prohibits robocalls.72 However, the law allows the use of an
automated telephone dialing system with live messages if:
The calls are made or messages given solely in response to calls initiated by the persons to
whom the automatic calls or live messages are directed;
The telephone numbers selected for automatic dialing have been screened to exclude any
telephone subscriber who is included on the department’s then-current “no sales solicitation
calls” listing or any unlisted telephone number; or
The calls concern goods or services that have been previously ordered or purchased.73
Effect of the Bill
The bill amends s. 501.059, F.S., prohibits robocalls and provides related exceptions. The bill prohibits
such calls without the prior express written consent of the called party, and allows a called party to
revoke his or her express written consent through any reasonable means clearly expressing a desire to
receive no further calls, texts, or messages.
The bill creates s. 501.059(8)(c) and specifies that express written consent must include a clear and
conspicuous disclosure informing the called party that:
65
The National Law Review, supra note 54.
66
Ammons v. Ally Fin., Inc., Case No. 3:17-cv-00505, 2018 WL 3134619, at *15 (M.D. Tenn. June 27, 2018).
67
Few v. Receivables Performance Mgmt., Case No. 1:17-CV-2038-KOB, 2018 WL 5923765 at *1 (N.D. Ala. Nov. 13, 2018).
68
Facebook, Inc., Petitioner vs. Noah Duguid, et al., U.S., No. 19-511.
69
FCC, supra note 22.
70
47 U.S.C. § 227(b)(3).
71
Id. at § 227(b)(3)(B)-(C).
72
S. 501.059(8), F.S.
73
Id.
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By executing the agreement, the called party authorizes a person to make or knowingly allow a
telephonic sales call to be made using an automated system for selecting or dialing telephone
numbers, playing a recorded message when a connection is completed to a telephone number
called, transmitting a text message, or transmitting a prerecorded voicemail.
The called party is not required to sign the agreement or consent to enter into such an
agreement as a condition of purchasing any property, goods, or services.
The bill clarifies the exemption that allows the use of an automated telephone dialing system with live
messages when the calls or messages are made in response to calls “originally” initiated by the
persons to whom the calls or messages are directed. However, the bill specifies that this does not
authorize repeated calls in response to a call originally initiated by a called party.
The bill maintains the exemption that allows the use of an automated telephone dialing system when
the calls concern the order, purchase, or delivery of goods or services that have previously been
ordered by the called party. However, the bill specifies that this does not authorize telephonic sales
calls made solely because the called party conducted business with the person initiating the call.
The bill removes the requirement that prior to the use of an automated telephone dialing system with
live messages the telephone numbers selected for calling must be screened to exclude subscribers to
the Florida Do Not Call list or any unlisted telephone number.
The bill provides a rebuttable presumption that any telephonic sales call made to a Florida area code is
considered to be made to a resident of this state or to a person who is in this state at the time of the
telephonic sales call.
The bill defines a "called party" as a person who is the regular user of the telephone number that is
delivered a telephonic sales call.
The bill defines "express written consent" as a written consent agreement bearing the handwritten,
electronic, or digital signature of a called party that states the telephone number to which the called
party authorizes a telephonic sales call to be delivered and clearly authorizes a person to make or
knowingly allow a telephonic sales call to be made using an automated system for selecting or dialing
telephone numbers, playing a recorded message when a connection is completed to a telephone
number called, transmitting a text message, or transmitting a prerecorded voicemail.
B. SECTION DIRECTORY:
Section 1: Amends s. 501.059, F.S., relating to telephone solicitation.
Section 2: Provides an effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
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1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may have an indeterminate negative fiscal impact on legitimate telemarketers to the extent they
do not currently engage in business practices consistent with the requirements in the bill.
The bill may protect consumers from unwanted and fraudulent telephone solicitations.
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:
The bill does not appear to create a need for rulemaking or rulemaking authority.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On March 17, 2021, the Regulatory Reform Subcommittee adopted a strike-all amendment and reported
the bill favorably as a committee substitute. The committee substitute:
Prohibited calls made using an automated telephone dialing system with live messages without the
prior express written consent of the called party.
Authorized a called party to revoke their express written consent through any reasonable means
clearly expressing a desire to receive no further calls, texts, or messages.
Clarified that the use of an automated telephone dialing system is not prohibited in certain
instances.
Clarified that repeated calls in response to a call originally initiated by a called party are not allowed.
Prohibited calls made solely because the called party previously conducted business with the
person initiating the call.
Removed the requirement that calls be screened by using the DACS do not call list prior to making
calls related to goods or services previously purchased.
Provided a rebuttable presumption that such calls made to a Florida area code are considered to be
made to a resident of, or person in, this state.
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 1307 2021
1 A bill to be entitled
2 An act relating to telephone solicitation; amending s.
3 501.059, F.S.; prohibiting certain telephonic sales
4 calls without the prior express written consent of the
5 called party; providing definitions; providing
6 requirements for written consent agreements; providing
7 that a called party may revoke express written
8 consent; providing a rebuttable presumption for
9 telephonic sales calls made to specified area codes;
10 removing the requirement that certain telephone
11 numbers be excluded from calls made by automated
12 telephone dialing systems with live messages;
13 providing construction; providing an effective date.
14
15 Be It Enacted by the Legislature of the State of Florida:
16
17 Section 1. Subsection (8) of section 501.059, Florida
18 Statutes, is amended to read:
19 501.059 Telephone solicitation.—
20 (8)(a) A No person may not shall make or knowingly allow a
21 telephonic sales call to be made if such call involves an
22 automated system for the selection or dialing of telephone
23 numbers or the playing of a recorded message when a connection
24 is completed to a number called without the prior express
25 written consent of the called party.
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26 (b) As used in this subsection, the term:
27 1. "Called party" means a person who is the regular user
28 of the telephone number that is delivered a telephonic sales
29 call.
30 2. "Express written consent" means a written consent
31 agreement bearing the handwritten, electronic, or digital
32 signature of a called party that states the telephone number to
33 which the called party authorizes a telephonic sales call to be
34 delivered and clearly authorizes a person to make or knowingly
35 allow a telephonic sales call to be made using an automated
36 system for selecting or dialing telephone numbers, playing a
37 recorded message when a connection is completed to a telephone
38 number called, transmitting a text message, or transmitting a
39 prerecorded voicemail.
40 (c) The express written consent must include a clear and
41 conspicuous disclosure informing the called party that:
42 1. By executing the agreement, the called party authorizes
43 a person to make or knowingly allow a telephonic sales call to
44 be made using an automated system for selecting or dialing
45 telephone numbers, playing a recorded message when a connection
46 is completed to a telephone number called, transmitting a text
47 message, or transmitting a prerecorded voicemail.
48 2. The called party is not required to sign the agreement
49 or consent to enter into such an agreement as a condition of
50 purchasing any property, goods, or services.
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51 (d) A called party may revoke express written consent
52 through any reasonable means clearly expressing a desire to not
53 receive further calls, recorded messages, text messages, or
54 prerecorded voicemails.
55 (e) There is a rebuttable presumption that any telephonic
56 sales call made to a Florida area code is made to a resident of
57 this state or to a person who is in this state at the time of
58 the telephonic sales call.
59 (f) This subsection does not prohibit Nothing herein
60 prohibits the use of an automated telephone dialing system with
61 live messages if the calls are made or messages are given solely
62 in response to calls originally initiated by the persons to whom
63 the automatic calls or live messages are directed. This
64 paragraph does not authorize repeated calls in response to a
65 call made by a called party to the person who originally
66 initiated a telephonic sales call to the called party.
67 (g) This subsection does not prohibit the use of an
68 automated telephone dialing system or if the telephone numbers
69 selected for automatic dialing have been screened to exclude any
70 telephone subscriber who is included on the department's then-
71 current "no sales solicitation calls" listing or any unlisted
72 telephone number, or if the calls made concern goods or services
73 that have been previously ordered or purchased by the called
74 party and concern the order, purchase, or delivery of, or
75 payment for, such goods or services. This paragraph does not
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76 authorize telephonic sales calls to a called party solely
77 because the called party has previously conducted business with
78 the person initiating the telephonic sales call.
79 (h)(c) It is shall be unlawful for any person who makes a
80 telephonic sales call or causes a telephonic sales call to be
81 made to fail to transmit or cause not to be transmitted the
82 originating telephone number and, when made available by the
83 telephone solicitor's carrier, the name of the telephone
84 solicitor to any caller identification service in use by a
85 recipient of a telephonic sales call. However, it is shall not
86 be a violation to substitute, for the name and telephone number
87 used in or billed for making the call, the name of the seller on
88 behalf of which a telephonic sales call is placed and the
89 seller's customer service telephone number, which is answered
90 during regular business hours. If a telephone number is made
91 available through a caller identification service as a result of
92 a telephonic sales call, the solicitor must ensure that
93 telephone number is capable of receiving telephone calls and
94 must connect the original call recipient, upon calling such
95 number, to the telephone solicitor or to the seller on behalf of
96 which a telephonic sales call was placed. For purposes of this
97 section, the term "caller identification service" means a
98 service that allows a telephone subscriber to have the telephone
99 number and, where available, the name of the calling party
100 transmitted contemporaneously with the telephone call and
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101 displayed on a device in or connected to the subscriber's
102 telephone.
103 (i)(d) It is shall be unlawful for any person who makes a
104 telephonic sales call or causes a telephonic sales call to be
105 made to intentionally alter the voice of the caller in an
106 attempt to disguise or conceal the identity of the caller in
107 order to defraud, confuse, or financially or otherwise injure
108 the recipient of a telephonic sales call or in order to obtain
109 personal information from the recipient of a telephonic sales
110 call which may be used in a fraudulent or unlawful manner.
111 Section 2. This act shall take effect July 1, 2021.
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COMMERCE COMMITTEE
CS/HB 1307 by Rep. Beltran
Telephone Solicitation
AMENDMENT SUMMARY
April 19, 2021
Amendment 1 by Rep. Beltran (line-110):
• Extends the timeframe during which telephone solicitations are prohibited by one hour,
making it begin at 8 p.m. instead of 9 p.m., thereby prohibiting telephone sellers or
salespersons from calling consumers outside of the hours of 8 a.m. and 8 p.m.
• Revises the area within which the restriction applies to include the person’s “time zone”
instead of “location.”
• Prohibits more than three commercial telephone solicitation phone calls from any
number to a person over a 24-hour period on the same subject matter or issue,
regardless of the phone number used to make the call.
• Clarifies that calls made through an automated dialer or recorded message are subject
to the same prohibitions.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1307 (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 Beltran offered the following:
3
4 Amendment (with title amendment)
5 Between lines 110 and 111, insert:
6 Section 2. Subsection (6) of section 501.616, Florida
7 Statutes, is amended to read:
8 501.616 Unlawful acts and practices.—
9 (6) A commercial telephone seller or salesperson may not
10 make any of the following types of phone calls, including calls
11 made through automated dialing or recorded messages:
12 (a) A commercial telephone solicitation phone call before
13 8 a.m. or after 8 9 p.m. local time in at the called person's
14 time zone location.
15 (b) More than three commercial telephone solicitation
16 phone calls from any number to a person over a 24-hour period on
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1307 (2021)
Amendment No. 1
17 the same subject matter or issue, regardless of the phone number
18 used to make the call.
19 Section 3. For the purpose of incorporating the amendment
20 made by this act to section 501.616, Florida Statutes, in a
21 reference thereto, section 501.604, Florida Statutes, is
22 reenacted to read:
23 501.604 Exemptions.—The provisions of this part, except
24 ss. 501.608 and 501.616(6) and (7), do not apply to:
25 (1) A person engaging in commercial telephone solicitation
26 where the solicitation is an isolated transaction and not done
27 in the course of a pattern of repeated transactions of like
28 nature.
29 (2) A person soliciting for religious, charitable,
30 political, or educational purposes. A person soliciting for
31 other noncommercial purposes is exempt only if that person is
32 soliciting for a nonprofit corporation and if that corporation
33 is properly registered as such with the Secretary of State and
34 is included within the exemption of s. 501(c)(3) or (6) of the
35 Internal Revenue Code.
36 (3) A person who does not make the major sales
37 presentation during the telephone solicitation and who does not
38 intend to, and does not actually, complete or obtain provisional
39 acceptance of a sale during the telephone solicitation, but who
40 makes the major sales presentation and completes the sale at a
41 later face-to-face meeting between the seller and the
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1307 (2021)
Amendment No. 1
42 prospective purchaser in accordance with the home solicitation
43 provisions in this chapter. However, if a seller, directly
44 following a telephone solicitation, causes an individual whose
45 primary purpose it is to go to the prospective purchaser to
46 collect the payment or deliver any item purchased, this
47 exemption does not apply.
48 (4) A licensed securities, commodities, or investment
49 broker, dealer, or investment adviser, when soliciting within
50 the scope of his or her license, or a licensed associated person
51 of a securities, commodities, or investment broker, dealer, or
52 investment adviser, when soliciting within the scope of his or
53 her license. As used in this section, "licensed securities,
54 commodities, or investment broker, dealer, or investment
55 adviser" means a person subject to license or registration as
56 such by the Securities and Exchange Commission, by the Financial
57 Industry Regulatory Authority or other self-regulatory
58 organization as defined by the Securities Exchange Act of 1934,
59 15 U.S.C. s. 78l, or by an official or agency of this state or
60 of any state of the United States. As used in this section,
61 "licensed associated person of a securities, commodities, or
62 investment broker, dealer, or investment adviser" means an
63 associated person registered or licensed by the Financial
64 Industry Regulatory Authority or other self-regulatory
65 organization as defined by the Securities Exchange Act of 1934,
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1307 (2021)
Amendment No. 1
66 15 U.S.C. s. 78l, or by an official or agency of this state or
67 of any state of the United States.
68 (5) A person primarily soliciting the sale of a newspaper
69 of general circulation.
70 (6) A book, video, or record club or contractual plan or
71 arrangement:
72 (a) Under which the seller provides the consumer with a
73 form which the consumer may use to instruct the seller not to
74 ship the offered merchandise.
75 (b) Which is regulated by the Federal Trade Commission
76 trade regulation concerning "use of negative option plans by
77 sellers in commerce."
78 (c) Which provides for the sale of books, records, or
79 videos which are not covered under paragraph (a) or paragraph
80 (b), including continuity plans, subscription arrangements,
81 standing order arrangements, supplements, and series
82 arrangements under which the seller periodically ships
83 merchandise to a consumer who has consented in advance to
84 receive such merchandise on a periodic basis.
85 (7) A supervised financial institution or parent,
86 subsidiary, or affiliate thereof operating within the scope of
87 supervised activity. As used in this section, "supervised
88 financial institution" means a commercial bank, trust company,
89 savings and loan association, mutual savings bank, credit union,
90 industrial loan company, consumer finance lender, commercial
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1307 (2021)
Amendment No. 1
91 finance lender, or insurer, provided that the institution is
92 subject to supervision by an official or agency of this state,
93 of any state, or of the United States. For the purposes of this
94 exemption, "affiliate" means a person who directly, or
95 indirectly through one or more intermediaries, controls or is
96 controlled by, or is under common control with, a supervised
97 financial institution.
98 (8) Any licensed insurance broker, agent, customer
99 representative, or solicitor when soliciting within the scope of
100 his or her license. As used in this section, "licensed insurance
101 broker, agent, customer representative, or solicitor" means any
102 insurance broker, agent, customer representative, or solicitor
103 licensed by an official or agency of this state or of any state
104 of the United States.
105 (9) A person soliciting the sale of services provided by a
106 cable television system operating under authority of a franchise
107 or permit.
108 (10) A business-to-business sale where:
109 (a) The commercial telephone seller has been lawfully
110 operating continuously for at least 3 years under the same
111 business name and has at least 50 percent of its dollar volume
112 consisting of repeat sales to existing businesses;
113 (b) The purchaser business intends to resell or offer for
114 purposes of advertisement or as a promotional item the property
115 or goods purchased; or
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1307 (2021)
Amendment No. 1
116 (c) The purchaser business intends to use the property or
117 goods purchased in a recycling, reuse, remanufacturing, or
118 manufacturing process.
119 (11) A person who solicits sales by periodically
120 publishing and delivering a catalog of the seller's merchandise
121 to prospective purchasers, if the catalog:
122 (a) Contains a written description or illustration of each
123 item offered for sale.
124 (b) Includes the business address or home office address
125 of the seller.
126 (c) Includes at least 20 pages of written material and
127 illustrations and is distributed in more than one state.
128 (d) Has an annual circulation by mailing of not less than
129 150,000.
130 (12) A person who solicits contracts for the maintenance
131 or repair of goods previously purchased from the person making
132 the solicitation or on whose behalf the solicitation is made.
133 (13) A commercial telephone seller licensed pursuant to
134 chapter 516 or part III of chapter 520. For purposes of this
135 exemption, the seller must solicit to sell a consumer good or
136 service within the scope of his or her license and the completed
137 transaction must be subject to the provisions of chapter 516 or
138 part III of chapter 520.
139 (14) A telephone company subject to chapter 364, or
140 affiliate thereof or its agents, or a telecommunications
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1307 (2021)
Amendment No. 1
141 business that is regulated by the Florida Public Service
142 Commission, or a Federal Communications Commission licensed
143 cellular telephone company or other bona fide radio
144 telecommunication services provider. For the purposes of this
145 exemption, "affiliate" means a person who directly, or
146 indirectly through one or more intermediaries, controls or is
147 controlled by, or is under common control with, a telephone
148 company subject to chapter 364.
149 (15) A person who is licensed pursuant to chapter 497 and
150 who is soliciting within the scope of the license.
151 (16) An issuer or a subsidiary of an issuer that has a
152 class of securities which is subject to s. 12 of the Securities
153 Exchange Act of 1934, 15 U.S.C. s. 78l, and which is either
154 registered or exempt from registration under paragraph (A),
155 paragraph (B), paragraph (C), paragraph (E), paragraph (F),
156 paragraph (G), or paragraph (H) of subsection (g)(2) of that
157 section.
158 (17) A business soliciting exclusively the sale of
159 telephone answering services provided that the telephone
160 answering services will be supplied by the solicitor.
161 (18) A person soliciting a transaction regulated by the
162 Commodity Futures Trading Commission if the person is registered
163 or temporarily licensed for this activity with the Commodity
164 Futures Trading Commission under the Commodity Exchange Act, 7
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Bill No. CS/HB 1307 (2021)
Amendment No. 1
165 U.S.C. ss. 1 et seq., and the registration or license has not
166 expired or been suspended or revoked.
167 (19) A person soliciting the sale of food or produce as
168 defined in chapter 500 or chapter 504 if the solicitation
169 neither intends to result in, or actually results in, a sale
170 which costs the purchaser in excess of $500.
171 (20) A person who is registered pursuant to part XI of
172 chapter 559 and who is soliciting within the scope of the
173 registration.
174 (21) A person soliciting business from prospective
175 consumers who have an existing business relationship with or who
176 have previously purchased from the business enterprise for which
177 the solicitor is calling, if the solicitor is operating under
178 the same exact business name.
179 (22) A person who has been operating, for at least 1 year,
180 a retail business establishment under the same name as that used
181 in connection with telemarketing, and both of the following
182 occur on a continuing basis:
183 (a) Either products are displayed and offered for sale or
184 services are offered for sale and provided at the business
185 establishment.
186 (b) A majority of the seller's business involves the buyer
187 obtaining such products or services at the seller's location.
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1307 (2021)
Amendment No. 1
188 (23) A person who is a registered developer or exchange
189 company pursuant to chapter 721 and who is soliciting within the
190 scope of the chapter.
191 (24) Any person who has been lawfully providing
192 telemarketing sales services continuously for at least 5 years
193 under the same ownership and control and who derives 75 percent
194 of its gross telemarketing sales revenues from contracts with
195 persons exempted in this section.
196 (25) A person licensed pursuant to chapter 475 and who is
197 soliciting within the scope of the chapter.
198 (26) A publisher, or an agent of a publisher by written
199 agreement, who solicits the sale of his or her periodical or
200 magazine of general, paid circulation. The term "paid
201 circulation" shall not include magazines that are only
202 circulated as part of a membership package or that are given as
203 a free gift or prize from the publisher or agent of the
204 publisher by written agreement.
205 (27) A person who is a licensed operator or an
206 identification cardholder as defined in chapter 482, and who is
207 soliciting within the scope of the chapter.
208 (28) A licensee, or an affiliate of a licensee, regulated
209 under chapter 560, the Money Transmitters' Code, for foreign
210 currency exchange services.
211 Section 4. For the purpose of incorporating the amendment
212 made by this act to section 501.616, Florida Statutes, in a
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1307 (2021)
Amendment No. 1
213 reference thereto, paragraph (c) of subsection (1) of section
214 648.44, Florida Statutes, is reenacted to read:
215 648.44 Prohibitions; penalty.—
216 (1) A bail bond agent or temporary bail bond agent may
217 not:
218 (c) Initiate in-person or telephone solicitation after
219 9:00 p.m. or before 8:00 a.m., in the case of domestic violence
220 cases, at the residence of the detainee or the detainee's
221 family. Any solicitation not prohibited by this chapter must
222 comply with the telephone solicitation requirements in ss.
223 501.059(2) and (4), 501.613, and 501.616(6).
224
225 -----------------------------------------------------
226 T I T L E A M E N D M E N T
227 Remove line 13 and insert:
228 providing construction; amending s. 501.616, F.S.;
229 prohibiting a commercial telephone seller or
230 salesperson from using automated dialing or recorded
231 messages to make certain commercial telephone
232 solicitation phone calls; revising the timeframe
233 during which a commercial telephone seller or
234 salesperson may make commercial solicitation phone
235 calls; prohibiting commercial telephone sellers or
236 salespersons from making a specified number of
237 commercial telephone solicitation phone calls to a
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1307 (2021)
Amendment No. 1
238 person over a specified timeframe; reenacting s.
239 501.604, F.S., relating to exemptions to the Florida
240 Telemarketing Act, to incorporate the amendment made
241 to s. 501.616, F.S., in a reference thereto;
242 reenacting s. 648.44(1)(c), F.S., relating to
243 prohibitions regarding bail bond agent telephone
244 solicitations, to incorporate the amendment made to s.
245 501.616, F.S., in a reference thereto; providing an
246 effective date.
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CS/HB 1351
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1351 Money Services Businesses
SPONSOR(S): Insurance & Banking Subcommittee, Aloupis and others
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Insurance & Banking Subcommittee 16 Y, 1 N, As CS Hinshelwood Luczynski
2) State Administration & Technology 12 Y, 0 N Lee Topp
Appropriations Subcommittee
3) Commerce Committee Hinshelwood Hamon
SUMMARY ANALYSIS
The Office of Financial Regulation’s (OFR) Division of Consumer Finance licenses and regulates various
aspects of the non-depository financial services industries, including money services businesses (MSBs)
regulated under ch. 560, F.S. Money transmitters and payment instrument sellers are two types of MSBs.
Currently, virtual currency is not expressly within ch. 560, F.S., though in the last 6 years OFR has received
approximately 64 petitions for declaratory statement relating to whether and how virtual currency is regulated
under that chapter.
Virtual currency is a digital representation of value that functions as a medium of exchange, a unit of account,
and/or a store of value. In some environments, it operates like “fiat” currency (i.e., the coin and paper money of
the United States or of any other country that is designated as legal tender, circulates, and is customarily used
and accepted as a medium of exchange in the country of issuance), but it does not have legal tender status in
any jurisdiction. Bitcoin is one example of a virtual currency.
In a recent case, the Third District Court of Appeal’s holdings related to Bitcoin illustrate the need to expressly
provide whether and how virtual currency falls within ch. 560, F.S., as well as the need to clarify certain
definitions in that chapter. In particular, the court held that the definition of “money transmitter” requires
licensure for third-party intermediaries as well as for individuals in a two-party transaction.
Within ch. 560, F.S., the bill adds a definition for “virtual currency” and amends the definitions of “electronic
instrument”, “monetary value”, “money transmitter”, “payment instrument”, and “stored value”. The
amendments to these definitions provide clarity as to their meaning; make virtual currency expressly subject to
money transmitter regulations but not regulations for other types of licenses under ch. 560, F.S.; and clarify
that a money transmitter license is only required for a person acting as an intermediary between two parties,
meaning that neither person in a two-party transaction is required to be licensed. As a result of the addition of
virtual currency to ch. 560, F.S., the bill makes conforming changes to the prohibition on unlicensed activity,
adds rulemaking authority for recordkeeping requirements related to virtual currency, and amends the
permissible investments statute. Without a change to the permissible investments statute, the effect would be
to require a money transmitter that transmits virtual currency to not only have control over the virtual currency
being transmitted but also hold the equivalent value in cash or other assets on the list of permissible
investments. Instead, the bill would only require that, during the period of transmission, the money transmitter
must hold virtual currency of the same type and amount owed or obligated to the other location or person on
the receiving end of the transmission. Lastly, the bill makes conforming changes under the Financial
Technology Sandbox in s. 559.952, F.S., as well as other conforming changes within ch. 560, F.S., to reflect
the addition of virtual currency to money transmitter regulations.
The bill has no fiscal impact on local governments and an indeterminate fiscal impact on the private sector and
the state. See Fiscal Analysis & Economic Impact Statement.
The bill provides an effective date of January 1, 2022.
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:
Background
Regulation of Money Transmitters and Payment Instrument Sellers
State Regulation
The Office of Financial Regulation (OFR) regulates banks, credit unions, other financial institutions,
finance companies, and the securities industry.1 The Division of Consumer Finance within OFR
licenses and regulates various aspects of the non-depository financial services industries, including
money services businesses (MSBs) regulated under ch. 560, F.S. Money transmitters and payment
instrument sellers are two types of MSBs, and both are regulated under part II of ch. 560, F.S.
A money transmitter receives currency,2 monetary value,3 or payment instruments4 for the purpose of
transmitting the same by any means, including transmission by wire, facsimile, electronic transfer,
courier, the Internet, or through bill payment services or other businesses that facilitate such transfer
within this country, or to or from this country.5 A payment instrument seller sells, issues, provides, or
delivers a payment instrument.6 State and federally chartered depository institutions, such as banks
and credit unions, are exempt from licensure as an MSB.7 Currently, virtual currency is not expressly
within ch. 560, F.S., though in the last 6 years OFR has received approximately 64 petitions for
declaratory statement relating to whether and how virtual currency is regulated under that chapter.
An applicant for an MSB license under ch. 560, F.S., must file an application with OFR and pay an
application fee of $375.8 The license must be renewed every 2 years by paying a renewal fee of $750.9
Money transmitters and payment instrument sellers may operate through authorized vendors by
providing OFR with specified information about the authorized vendor and by paying a fee of $38 per
authorized vendor location at the time of application and renewal.10 A money transmitter or payment
instrument seller may also engage in the activities authorized for check cashers11 and foreign currency
exchangers12 without paying additional licensing fees.13
1 S. 20.121(3)(a)2., F.S.
2 The term “currency” means the coin and paper money of the United States or of any other country which is designated
as legal tender and which circulates and is customarily used and accepted as a medium of exchange in the country of
issuance. Currency includes United States silver certificates, United States notes, and Federal Reserve notes. Currency
also includes official foreign bank notes that are customarily used and accepted as a medium of exchange in a foreign
country. S. 560.103(11), F.S.
3 The term “monetary value” means a medium of exchange, whether or not redeemable in currency. S. 560.103(21), F.S.
4 The term “payment instrument” means a check, draft, warrant, money order, travelers check, electronic instrument, or
other instrument, payment of money, or monetary value whether or not negotiable. The term does not include an
instrument that is redeemable by the issuer in merchandise or service, a credit card voucher, or a letter of credit. S.
560.103(29), F.S.
5 S. 560.103(23), F.S.
6 S. 560.103(30) and (34), F.S.; definition of “payment instrument”, supra note 4.
7 S. 560.104, F.S.
8 Ss. 560.141 and 560.143, F.S.
9 Id.; s. 560.142, F.S.
10 Id.; ss. 560.203, 560.205, and 560.208, F.S.
11 The term “check casher” means a person who sells currency in exchange for payment instruments received, except
travelers checks. S. 560.103(6), F.S.
12 The term “foreign currency exchanger” means a person who exchanges, for compensation, currency of the United
States or a foreign government to currency of another government. S. 560.103(17), F.S.
13 S. 560.204(2), F.S.
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A money transmitter or payment instrument seller must at all times:
Have a net worth of at least $100,000 and an additional net worth of $10,000 per location in this
state, up to a maximum of $2 million.14
Have a corporate surety bond in an amount between $50,000 and $2 million depending on the
financial condition, number of locations, and anticipated volume of the licensee.15 In lieu of a
corporate surety bond, the licensee may deposit collateral such as cash or interest-bearing
stocks and bonds with a federally insured financial institution.16
Possess permissible investments, such as cash and certificates of deposit, with an aggregate
market value of at least the aggregate face amount of all outstanding money transmissions and
payment instruments issued or sold by the licensee or an authorized vendor in the United
States.17 OFR may waive the permissible investments requirement if the dollar value of a
licensee’s outstanding payment instruments and money transmitted do not exceed the bond or
collateral deposit.18
While MSBs are generally subject to federal anti-money laundering laws,19 Florida law contains many
of the same anti-money laundering reporting requirements and recordkeeping requirements with the
added benefit of state enforcement. An MSB applicant must have an anti-money laundering program
that meets the requirements of federal law.20
Pursuant to the Florida Control of Money Laundering in Money Services Business Act, an MSB must
maintain certain records of each transaction involving currency or payment instruments in order to deter
the use of a money services business to conceal proceeds from criminal activity and to ensure the
availability of such records for criminal, tax, or regulatory investigations or proceedings.21 An MSB must
keep records of each transaction occurring in this state that it knows to involve currency or other
payment instruments having a greater value than $10,000; to involve the proceeds of specified unlawful
activity; or to be designed to evade the reporting requirements of ch. 896, F.S., or the Florida Control of
Money Laundering in Money Services Business Act.22 OFR may take administrative action against an
MSB for failure to maintain or produce documents required by ch. 560, F.S., or federal anti-money
laundering laws.23 OFR may also take administrative action against an MSB for other violations of
federal anti-money laundering laws such as failure to file suspicious activity reports.24
A money transmitter or payment instrument seller must maintain specified records for at least 5 years,
including the following:25
A daily record of payment instruments sold and money transmitted.
A general ledger containing all asset, liability, capital, income, and expense accounts, which
must be posted at least monthly.
Daily settlement records received from authorized vendors.
Monthly financial institution statements and reconciliation records.
Records of outstanding payment instruments and money transmitted.
Records of each payment instrument paid and money transmission delivered.
A list of the names and addresses of the licensee’s authorized vendors.
Records that document the establishment, monitoring, and termination of relationships with
authorized vendors and foreign affiliates.
Any additional records, as prescribed by rule, designed to detect and prevent money
laundering.
14 S. 560.209, F.S.
15 Id.
16 Id.
17 S. 560.210, F.S.
18 Id.
19 31 C.F.R. pt. 1022.
20 S. 560.1401, F.S.
21 S. 560.123, F.S.
22 Id.
23 S. 560.114, F.S.
24 Id.
25 Ss. 560.1105 and 560.211, F.S.
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Recent Case Law: State v. Espinoza
Through an online directory of buyers and sellers of bitcoin, a detective with the Miami Beach Police
Department arranged to meet a person with the username Michelhack, which turned out to be the
defendant Michell Espinoza, in order to purchase bitcoin.26 The detective arranged multiple
transactions with the defendant as follows:
During the course of the first transaction, the detective made clear his desire to remain
anonymous and implied that he was involved in illicit activity.27 The detective paid Mr. Espinoza
$500 in cash and received a portion of a bitcoin valued at $416.12, thus earning Mr. Espinoza a
profit of $83.67.28
The detective arranged a second transaction with Mr. Espinoza during which he told Mr.
Espinoza that he needed the bitcoins to pay for stolen credit card numbers, since he was in the
business of buying and selling stolen credit card numbers from Russian sellers.29 The detective
paid Mr. Espinoza $1,000 in cash and received one bitcoin, thus earning Mr. Espinoza a profit
of approximately $167.56.30
The detective then arranged a third transaction with Mr. Espinoza.31 The detective inquired how
fast the transaction could be completed because his “Russian buddies” would not send him his
“[stuff] until they get the coin.”32 The detective deposited $500 into Mr. Espinoza’s bank account,
and Mr. Espinoza transferred 0.54347826 bitcoins to the detective.33
In the fourth and final transaction, the detective negotiated the transfer of bitcoins worth $30,000
and represented to Mr. Espinoza that it was to pay for a new batch of stolen credit card
numbers acquired from a recent data breach.34 Although Mr. Espinoza questioned the
authenticity of the $30,000 roll of money that the detective gave him, he otherwise remained
ready and willing to consummate the entire transaction.35 Mr. Espinoza was then taken into
custody.36
Mr. Espinoza was charged with: (1) one count of unlawfully engaging in the business of a money
transmitter and acting as a payment instrument seller as a result of not being licensed to conduct such
activity (Count one); and (2) two counts of money laundering (Counts two and three).37 Mr. Espinoza
filed a motion to dismiss as to all counts, which the trial court granted for the following reasons:
As to Count one, the trial court found that neither Bitcoin nor Mr. Espinoza’s conduct fell within
the ambit of ch. 560, F.S., requiring registration as a money services business.38 Regarding Mr.
Espinoza’s conduct, the trial court reasoned that a “money transmitter” would necessarily
operate like a middleman in a financial transaction, much like how Western Union accepts
money from person A, and at the direction of person A, transmits it to person or entity B.39 Mr.
Espinoza was not acting as a middleman; rather the transactions with the detective were two-
party transactions in which Mr. Espinoza sold his own bitcoin to the detective and received U.S.
Dollars in return.
As to Counts two and three, the trial court found that the conduct at issue qualifies as a
“financial transaction” under the money laundering statutes but that Mr. Espinoza lacked the
requisite intent to be guilty of money laundering.40
26 State v. Espinoza, 264 So. 3d 1055, 1059-60 (Fla. 3d DCA 2019).
27 Id. at 1060.
28 Id.
29 Id.
30 Id.
31 Id.
32 Id.
33 Id.
34 Id. at 1060-61.
35 Id. at 1061.
36 Id.
37 Id. at 1057 and 1061.
38 Id. at 1057 and 1061.
39 Id. at 1065.
40 Id. at 1057 and 1061.
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The state then appealed the trial court’s dismissal of the information.41 On appeal, the Third District
Court of Appeal (court) held that:
The trial court erred in dismissing Count one because Mr. Espinoza acted as both a money
transmitter and a payment instrument seller and, as such, was required to be licensed as a
money services business.42
The trial court erred in dismissing Counts two and three on the basis that Espinoza lacked the
requisite intent to be guilty of money laundering.43
Most importantly, in the reasoning as to count one, the court determined that Bitcoin is both “monetary
value” and a “payment instrument” under ch. 560, F.S.44 This interpretation illustrates the need to
expressly provide whether and how virtual currency falls within ch. 560, F.S. The court’s interpretation
also illustrates the need to clarify the definition of “payment instrument”. “Monetary value” is akin to
“currency” within ch. 560, F.S. Conceptually, a payment instrument is an instrument denominated in
currency (or monetary value), but currency and monetary value should not in and of themselves be a
payment instrument.
Another important aspect of the Espinoza case is that in determining that Mr. Espinoza acted as a
money transmitter, the court addressed whether the definition of “money transmitter” covers only third-
party intermediaries, in which case Mr. Espinoza selling his own bitcoins to the detective would not
have run afoul of the prohibition on unlicensed money transmission.45 On this point, the court held that
“[t]he statute's plain language clearly contains no third party transmission requirement in order for an
individual's conduct to fall under the ‘money transmitter’ definition. As such, we decline to add any third
party or ‘middleman’ requirement to the money transmitter definition found in section 560.103(23).” 46
The court’s holding illustrates the need to clarify the definition of “money transmitter” such that a money
transmitter license is only required for a person acting an intermediary between two parties, but neither
person in a two-party transaction is required to be licensed.47
Virtual Currency
Virtual currency is a digital representation of value that functions as a medium of exchange, a unit of
account, and/or a store of value.48 In some environments, it operates like “real” currency49 (i.e., the coin
and paper money of the United States or of any other country that is designated as legal tender,
circulates, and is customarily used and accepted as a medium of exchange in the country of issuance),
but it does not have legal tender status in any jurisdiction.50 Virtual currency that has an equivalent
value in real currency, or that acts as a substitute for real currency, is referred to as “convertible” virtual
currency.51 Bitcoin is one example of a convertible virtual currency, as it can be digitally traded between
41 Id. at 1061.
42 Id. at 1057 and 1061-62.
43 Id.
44 Id. at 1064.
45 Id. at 1065.
46 Id. (citations omitted).
47 This is consistent with the historical interpretation of the money transmitter definition by OFR and industry, and it avoids
the untenable result of requiring persons in a two-party transaction to be licensed. Additionally, this is consistent with the
substance of the money transmitter regulations.
48 IRS, Virtual Currencies: What is virtual currency?, https://www.irs.gov/businesses/small-businesses-self-
employed/virtual-currencies (last visited Mar. 14, 2021).
49 Also often referred to as “fiat” currency.
50 IRS, supra note 48.
51 Id.
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users and can be purchased for, or exchanged into, U.S. dollars, Euros, and other real or virtual
currencies.52
Virtual currencies generally consist of computers operating the network software (nodes) that enable,
validate, and store transaction records on a distributed digital ledger (a blockchain).53 To transfer an
asset on a blockchain, a person enters an alphanumeric code known only to the transferor (a private
key) into a cryptographic hash function enabled by the network software, which allows the transferor to
request that the network software validate a new entry on the ledger showing that control of an asset
has been assigned to the recipient.54 Once the network software has validated this transfer, the ledger
is altered and the recipient may transfer the asset to another recipient using their own private key.55
Ledger entries are cryptographically secured, and accounts are identified on a blockchain by
alphanumeric ‘‘public keys’’—not by the owner’s name.56
Some persons use the services of a third-party to acquire or transact in virtual currency.57 For example,
certain third-parties provide custody services for their customers’ virtual currency in so called ‘‘hosted
wallets.’’58 In such arrangements, the third-party wallet host may execute transactions on a blockchain
on behalf of a customer using a private key controlled by the third-party wallet host.59 Other persons do
not use the services of such a third-party, in which case they use the private key controlling their virtual
currency to transact directly on a blockchain.60 Such persons may store the private key in a software
program or written record, often referred to as an ‘‘unhosted wallet.’’61
Virtual currency networks present opportunities as well as risks.62 The G7 Finance Ministers and
Central Bank Governors recently noted that ‘‘[t]he widespread adoption of digital payments . . . has the
potential to address frictions in existing payment systems by improving access to financial services,
reducing inefficiencies, and lowering costs.’’63 At the same time, however, virtual currencies are used in
illicit financial activity that presents substantial national security concerns.64
Determining the true amount of illicit activity that is conducted in virtual currency is challenging.65 One
industry estimate is that approximately 1 percent of overall market transaction volume, or $10 billion, in
virtual currency activity conducted globally in 2019 was illicit.66 This figure, however, may
underestimate such illicit activity.67 Despite significant underreporting due to compliance challenges in
parts of the virtual currency sector, in 2019, FinCEN received approximately $119 billion in suspicious
activity reporting associated with virtual currency activity taking place wholly or in substantial part in the
52 Id.
53 FinCEN, Notice of Proposed Rulemaking: Requirements for Certain Transactions Involving Convertible Virtual Currency
or Digital Assets, https://www.govinfo.gov/content/pkg/FR-2020-12-23/pdf/2020-28437.pdf (last visited Mar. 14, 2021).
54 Id.
55 Id.
56 Id.
57 Id..
58 Id.
59 Id.
60 Id.
61 Id.
62 Id.
63 Id. (citing the G7 Finance Ministers and Central Bank Governors’ Statement on Digital Payments on Oct. 13, 2020).
64 FinCEN Notice of Proposed Rulemaking, supra note 53.
65 Id.
66 Id. (citing Chainalysis, 2020 Crypto Crime Report (Jan. 2020), https://go.chainalysis.com/2020-CryptoCrime-
Report.html).
67 FinCEN Notice of Proposed Rulemaking, supra note 53.
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United States.68 By industry measures, this would equate to approximately 11.9 percent of total virtual
currency market activity being relevant to a possible violation of law or regulation.69
Virtual Currency in Florida Statutes
Currently, Florida law includes virtual currency as a type of monetary instrument under the Florida
Money Laundering Act.70 Thus, Florida law criminalizes the use of virtual currency for illicit purposes in
the same manner that the law criminalizes use of fiat currency for illicit purposes. Under that act,
“‘virtual currency’ means a medium of exchange in electronic or digital format that is not a coin or
currency of the United States or any other country.”71 This definition was added in 201772 and is the
only instance of “virtual currency” in Florida Statutes.
Federal Regulation of MSBs
The Financial Crimes Enforcement Network of the United States Department of Treasury (FinCEN)
serves as the nation’s financial intelligence unit and is charged with safeguarding the United States
financial system from the abuses of money laundering, terrorist financing, and other financial crimes.73
The basic concept underlying FinCEN's core activities is “follow the money” because criminals leave
financial trails as they try to launder the proceeds of crimes or attempt to spend their ill-gotten profits.74
To that end, FinCEN administers the Bank Secrecy Act (BSA).75 BSA regulations require banks and
other financial institutions, including MSBs, to take a number of precautions against financial crime.76
BSA regulations require financial institutions to establish an anti-money laundering program (such as
verifying customer identity), maintain certain records (such as transaction related data), and file reports
(such as suspicious activity reports and currency transaction reports) that have been determined to
have a high degree of usefulness in criminal, tax, and regulatory investigations, as well as in certain
intelligence and counter-terrorism matters.77
Generally, an MSB is required to register with FinCEN, regardless of whether the MSB is licensed with
the state, if it conducts more than $1,000 in business with one person in one or more transactions on
the same day, in one or more of the following services: money orders, traveler’s checks, check cashing,
currency dealing, or exchange.78 However, an MSB must register with FinCEN if it provides money
transfer services in any amount.79
BSA regulations define “money transmission services” as “the acceptance of currency, funds, or other
value that substitutes for currency from one person and the transmission of currency, funds, or other
value that substitutes for currency to another location or person by any means.”80 Depending on the
facts and circumstances surrounding a transaction, a person transmitting virtual currency may fall
under FinCEN’s BSA regulations.81
68 Id. FinCEN notes that a significant majority of this $119 billion related to suspicious activity that took place before 2019
based on subsequent lookbacks. Id. FinCEN anticipates that in the future it will receive additional suspicious activity
reporting for activity that took place in 2019 but that has not yet been recognized as suspicious. Id.
69 Id. Suspicious activity is not a clear indication of a crime but is activity that is potentially illicit. Id.
70 S. 896.101, F.S.
71 Id.
72 Ch. 2017-155, Laws of Fla.
73 FinCEN, What We Do, https://www.fincen.gov/what-we-do (last visited Mar. 14, 2021).
74 Id.
75 Many of the federal provisions of the BSA have been codified in ch. 560, F.S., which has provided OFR with additional
compliance and enforcement tools.
76 FinCEN, supra note 73.
77 Id.
78 31 C.F.R. §§ 1010.100 and 1022.380.
79 Id.
80 31 C.F.R. § 1010.100 (emphasis added).
81 FinCEN Guidance, Application of FinCEN’s Regulations to Certain Business Models Involving Convertible Virtual
Currencies, FIN-2019-G001 (May 9, 2019), https://www.fincen.gov/sites/default/files/2019-
05/FinCEN%20Guidance%20CVC%20FINAL%20508.pdf (last visited Mar. 14, 2021); FinCEN Notice of Proposed
Rulemaking, supra note 53.
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Federal law criminalizes money transmission if the money transmitting business:82
Is operated without a license in a state where such unlicensed activity is subject to criminal
sanctions;
Fails to register with FinCEN; or
Otherwise involves the transportation or transmission of funds that are known to have been
derived from a criminal offense or are intended to be used to promote or support unlawful
activity.
Effect of the Bill
Definitions (Section 2)
The bill makes the following changes to definitions in ch. 560, F.S.:
Amends the definition of “electronic instrument” to replace the undefined term “money” with the
defined term “currency”. Leaving an undefined term such as “money” in statute may lead to
confusion as to whether the term includes virtual currency. The definition of “electronic
instrument” is also reworded for clarity.
Excludes virtual currency from the definition of “monetary value” in order to narrow the
regulation of virtual currency to only regulations for money transmitters but not other types of
licenses under ch. 560, F.S.
Amends the definition of “money transmitter” to expressly include virtual currency and to clarify
that a money transmitter license is only required for a person acting an intermediary between
two parties if the intermediary has the ability to unilaterally execute or indefinitely prevent a
transaction; neither person in a two-party transaction is required to be licensed.
Amends the definition of “payment instrument” to replace the undefined term “money” with the
defined term “currency”. Leaving an undefined term such as “money” in statute may lead to
confusion as to whether the term includes virtual currency. The definition of “payment
instrument” is also amended to clarify that the term means an instrument that is used for the
transmission, exchange, or payment of currency or monetary value, but a payment instrument is
not the currency or monetary value itself.
Amends the definition of “stored value” to replace the undefined term “funds” with the defined
term “currency”. Leaving an undefined term such as “funds” in statute may lead to confusion as
to whether the term includes virtual currency.
Adds the following definition of “virtual currency” – Virtual currency means a medium of
exchange in electronic or digital format that is not currency. The term does not include a
medium of exchange in electronic or digital format that is used:
o Solely within online gaming platforms with no market or application outside such gaming
platforms; or
o Exclusively as part of a consumer affinity or rewards program and can be applied solely
as payment for purchases with the issuer or other designated merchants, but cannot be
converted into or redeemed for currency, monetary value, or virtual currency.
Prohibition on Unlicensed Activity (Section 5)
The bill amends the prohibition on unlicensed money transmitter activity and payment instrument
selling in order to better align the wording with the definition of payment instrument seller. One element
of the prohibition is that a person is doing such activity for compensation, and “compensation” includes
profit or loss on the exchange of currency. The bill adds that “compensation” includes profit or loss on
the exchange of monetary value or virtual currency.
Permissible Investments (Section 8)
The bill amends the permissible investments statute in relation to virtual currency. Under current law, a
money transmitter must possess permissible investments, such as cash and certificates of deposit, with
82 31 U.S.C. § 1960.
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an aggregate market value of at least the aggregate face amount of all outstanding money
transmissions. Without an amendment to this statute, the effect would be to require a money
transmitter that transmits virtual currency to not only have control over the virtual currency being
transmitted but also hold the equivalent value in cash or other assets on the list of permissible
investments. Instead, the bill would only require that, during the period of transmission, the money
transmitter must hold virtual currency of the same type and amount owed or obligated to the other
location or person on the receiving end of the transmission.
Required Records (Section 9)
The bill adds rulemaking authority for recordkeeping requirements related to virtual currency.
Conforming Changes (Sections 1, 3, 4, 6, 7, 9, 10)
The bill amends the Financial Technology Sandbox in s. 559.952, F.S., in order to conform to changes
made to s. 560.204, F.S. The bill also conforms portions of ss. 560.123, 560.125, 560.208, 560.2085,
560.211, 560.212, F.S., to reflect the addition of virtual currency to money transmitter regulations.
Effective Date (Section 11)
The bill provides an effective date of January 1, 2022.
B. SECTION DIRECTORY:
Section 1. Amends s. 559.952, F.S., relating to Financial Technology Sandbox.
Section 2. Amends s. 560.103, F.S., relating to definitions.
Section 3. Amends s. 560.123, F.S., relating to Florida Control of Money Laundering in Money
Services Business Act.
Section 4. Amends s. 560.125, F.S., relating to unlicensed activity; penalties.
Section 5. Amends s. 560.204, F.S., relating to license required.
Section 6. Amends s. 560.208, F.S., relating to conduct of business.
Section 7. Amends s. 560.2085, F.S., relating to authorized vendors.
Section 8. Amends s. 560.210, F.S., relating to permissible investments.
Section 9. Amends s. 560.211, F.S., relating to required records.
Section 10. Amends s. 560.212, F.S., relating to financial liability.
Section 11. Provides an effective date of January 1, 2022.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
See Fiscal Comments.
2. Expenditures:
See Fiscal Comments.
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B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill’s overall impact on the private sector, while likely positive, is indeterminate. The bill provides
regulatory clarity as to the way in which virtual currency is regulated under ch. 560, F.S. To the extent
that the Espinoza case may have caused some businesses to become licensed out of an abundance of
caution when buying and selling virtual currency in two-party transactions, the regulatory clarity
provided by the bill may result in such businesses foregoing licensure. Additionally, the bill may lead to
greater protection for consumers transacting in virtual currency through third-party intermediaries. The
regulatory clarity provided by the bill may lead to more money transmitter licensees, especially those
that deal in virtual currency. Those businesses must apply for a money transmitter license and would
be subject to initial licensure ($375) and biannual renewal ($750) fees, and reimbursing OFR for
examinations expenses every 5 years.83
D. FISCAL COMMENTS:
The fiscal impact on OFR is indeterminate. The regulatory clarity provided by the bill may lead to more
money transmitter licensees, especially those that deal in virtual currency. This may increase revenues
in the Regulatory Trust Fund, though OFR would incur additional costs for examination expenses
associated with the new licensees. However, to the extent that the Espinoza case may have caused
some businesses to become licensed out of an abundance of caution when buying and selling virtual
currency in two-party transactions, the regulatory clarity provided by the bill may result in such
businesses foregoing licensure.
Since the potential number of additional licensees and corresponding expenses for oversight is
unknown, the fiscal impact on the Regulatory Trust Fund is indeterminate. While OFR has indicated
that any fiscal impact can be handled within existing resources, the agency noted that additional staff
and funding may be required in the future if the number of new licensees dealing in virtual currency
significantly increases beyond its capacity to absorb the additional workload.84
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:
The bill adds rulemaking authority for recordkeeping requirements related to virtual currency. Other
changes made by the bill may necessitate amendment to current rules.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
83 Office of Financial Regulation (OFR), Agency Analysis of 2021 House Bill 1351, p. 6 (Mar. 4, 2021).
84 OFR, supra note 83, at 6-7.
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IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On March 17, 2021, the Insurance & Banking Subcommittee considered one amendment, which was adopted,
and reported the bill favorably as a committee substitute. The committee substitute makes the following
changes to the bill:
Clarifies that a money transmitter license is only required for an intermediary that has control over the
currency, monetary value, payment instrument, or virtual currency in transmission. This clarification is
important especially in the realm of virtual currency. Without this clarification, there may be confusion
as to whether a node on a blockchain network or a computer program that matches buyers and sellers
would count as an intermediary and thus be required to have a money transmitter license.
Conforms other sections of ch. 560, F.S., to reflect the addition of virtual currency to money transmitter
regulations.
The staff analysis has been updated to reflect the committee substitute.
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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 1351 2021
1 A bill to be entitled
2 An act relating to money services businesses; amending
3 s. 559.952, F.S.; revising exceptions for a licensee
4 during the Financial Technology Sandbox period;
5 amending s. 560.103, F.S.; revising and providing
6 definitions; amending s. 560.123, F.S.; revising the
7 purpose of the Florida Control of Money Laundering in
8 Money Services Business Act; revising duties of money
9 services businesses; amending s. 560.125, F.S.;
10 revising provisions related to violations of money
11 services business activities; amending s. 560.204,
12 F.S.; revising provisions related to certain
13 prohibited activities without a license; revising the
14 definition of the term "compensation"; amending s.
15 560.208, F.S.; revising requirements for a money
16 transmitter or payment instrument seller to conduct
17 business; amending s. 560.2085, F.S.; revising
18 requirements for a written contract between a money
19 transmitter or payment instrument seller and an
20 authorized vendor; amending s. 560.210, F.S.;
21 providing requirements for a money transmitter that
22 receives virtual currency; excluding virtual currency
23 in the calculation of permissible investments;
24 amending s. 560.211, F.S.; revising recordkeeping
25 requirements for a money transmitter or payment
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26 instrument seller; amending s. 560.212, F.S.; revising
27 financial liability requirements for a money
28 transmitter or payment instrument seller; providing an
29 effective date.
30
31 Be It Enacted by the Legislature of the State of Florida:
32
33 Section 1. Paragraph (a) of subsection (4) of section
34 559.952, Florida Statutes, is amended to read:
35 559.952 Financial Technology Sandbox.—
36 (4) EXCEPTIONS TO GENERAL LAW AND WAIVERS OF RULE
37 REQUIREMENTS.—
38 (a) Notwithstanding any other law, upon approval of a
39 Financial Technology Sandbox application, the following
40 provisions and corresponding rule requirements are not
41 applicable to the licensee during the sandbox period:
42 1. Section 516.03(1), except for the application fee, the
43 investigation fee, the requirement to provide the social
44 security numbers of control persons, evidence of liquid assets
45 of at least $25,000, and the office's authority to investigate
46 the applicant's background. The office may prorate the license
47 renewal fee for an extension granted under subsection (7).
48 2. Section 516.05(1) and (2), except that the office shall
49 investigate the applicant's background.
50 3. Section 560.109, only to the extent that the section
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51 requires the office to examine a licensee at least once every 5
52 years.
53 4. Section 560.118(2).
54 5. Section 560.125(1), only to the extent that the
55 subsection would prohibit a licensee from engaging in the
56 business of a money transmitter or payment instrument seller
57 during the sandbox period.
58 6. Section 560.125(2), only to the extent that the
59 subsection would prohibit a licensee from appointing an
60 authorized vendor during the sandbox period. Any authorized
61 vendor of such a licensee during the sandbox period remains
62 liable to the holder or remitter.
63 7. Section 560.128.
64 8. Section 560.141, except for s. 560.141(1)(a)1., 3., 7.-
65 10. and (b), (c), and (d).
66 9. Section 560.142(1) and (2), except that the office may
67 prorate, but may not entirely eliminate, the license renewal
68 fees in s. 560.143 for an extension granted under subsection
69 (7).
70 10. Section 560.143(2), only to the extent necessary for
71 proration of the renewal fee under subparagraph 9.
72 11. Section 560.204(1), only to the extent that the
73 subsection would prohibit a licensee from engaging in, or
74 advertising that it engages in, the selling or issuing of
75 payment instruments or in the activity of a payment instrument
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76 seller or money transmitter during the sandbox period.
77 12. Section 560.205(2).
78 13. Section 560.208(2).
79 14. Section 560.209, only to the extent that the office
80 may modify, but may not entirely eliminate, the net worth,
81 corporate surety bond, and collateral deposit amounts required
82 under that section. The modified amounts must be in such lower
83 amounts that the office determines to be commensurate with the
84 factors under paragraph (5)(c) and the maximum number of
85 consumers authorized to receive the financial product or service
86 under this section.
87 Section 2. Subsections (14), (21), (23), (29), and (35) of
88 section 560.103, Florida Statutes, are amended, and subsection
89 (36) is added to that section, to read:
90 560.103 Definitions.—As used in this chapter, the term:
91 (14) "Electronic instrument" means a card, tangible
92 object, or other form of electronic payment used for the
93 transmission, or payment, of money or the exchange of currency
94 or monetary value, including a stored value card or device that
95 contains a microprocessor chip, magnetic stripe, or other means
96 for storing information; that is prefunded; and for which the
97 value is decremented upon each use.
98 (21) "Monetary value" means a medium of exchange, other
99 than virtual currency, regardless of whether it is or not
100 redeemable in currency.
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101 (23) "Money transmitter" means a corporation, limited
102 liability company, limited liability partnership, or foreign
103 entity qualified to do business in this state which receives
104 currency, monetary value, a or payment instrument, or virtual
105 currency instruments for the purpose of acting as an
106 intermediary to transmit currency, monetary value, a payment
107 instrument, or virtual currency from one person to another
108 location or person transmitting the same by any means, including
109 transmission by wire, facsimile, electronic transfer, courier,
110 the Internet, or through bill payment services or other
111 businesses that facilitate such transfer within this country, or
112 to or from this country. The term includes only an intermediary
113 that has the ability to unilaterally execute or indefinitely
114 prevent a transaction.
115 (29) "Payment instrument" means a check, draft, warrant,
116 money order, travelers check, electronic instrument, or other
117 instrument used for the transmission, exchange, or payment of
118 currency money, or monetary value, regardless of whether it is
119 or not negotiable. The term does not include an instrument that
120 is redeemable by the issuer in merchandise or service, a credit
121 card voucher, or a letter of credit.
122 (35) "Stored value" means currency funds or monetary value
123 represented in digital electronic format, regardless of whether
124 it is or not specially encrypted, and stored or capable of
125 storage on electronic media in such a way as to be retrievable
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126 and transferred electronically.
127 (36) "Virtual currency" means a medium of exchange in
128 electronic or digital format that is not currency. The term does
129 not include a medium of exchange in electronic or digital format
130 that is used:
131 (a) Solely within online gaming platforms with no market
132 or application outside such gaming platforms; or
133 (b) Exclusively as part of a consumer affinity or rewards
134 program and can be applied solely as payment for purchases with
135 the issuer or other designated merchants, but cannot be
136 converted into or redeemed for currency, monetary value, or
137 virtual currency.
138 Section 3. Subsections (2), (3), and (4) and paragraphs
139 (b), (c), and (d) of subsection (8) of section 560.123, Florida
140 Statutes, are amended to read:
141 560.123 Florida Control of Money Laundering in Money
142 Services Business Act.—
143 (2) The purpose of this section is to require the
144 maintenance of certain records of transactions involving
145 currency, monetary value, or payment instruments, or virtual
146 currency in order to deter the use of a money services business
147 to conceal proceeds from criminal activity and to ensure the
148 availability of such records for criminal, tax, or regulatory
149 investigations or proceedings.
150 (3) A money services business shall keep a record, as
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151 prescribed by the commission, of each financial transaction
152 occurring in this state which it knows to involve currency,
153 monetary value, a or other payment instrument, or virtual
154 currency as prescribed by the commission, having a value greater
155 than $10,000; to involve the proceeds of specified unlawful
156 activity; or to be designed to evade the reporting requirements
157 of this section or chapter 896. The money services business must
158 maintain appropriate procedures to ensure compliance with this
159 section and chapter 896.
160 (a) Multiple financial transactions shall be treated as a
161 single transaction if the money services business has knowledge
162 that they are made by or on behalf of any one person and result
163 in value cash in or value cash out totaling a value of more than
164 $10,000 during any day.
165 (b) A money services business may keep a record of any
166 financial transaction occurring in this state, regardless of the
167 value, if it suspects that the transaction involves the proceeds
168 of unlawful activity.
169 (c) The money services business must file a report with
170 the office of any records required by this subsection, at such
171 time and containing such information as required by rule. The
172 timely filing of the report required by 31 U.S.C. s. 5313 with
173 the appropriate federal agency shall be deemed compliance with
174 the reporting requirements of this subsection unless the reports
175 are not regularly and comprehensively transmitted by the federal
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176 agency to the office.
177 (d) A money services business, or officer, employee, or
178 agent thereof, that files a report in good faith pursuant to
179 this section is not liable to any person for loss or damage
180 caused in whole or in part by the making, filing, or
181 governmental use of the report, or any information contained
182 therein.
183 (4) A money services business must comply with the money
184 laundering, enforcement, and reporting provisions of s. 655.50
185 relating to reports of transactions involving currency
186 transactions and payment instruments, as applicable, and of
187 chapter 896 concerning offenses relating to financial
188 transactions.
189 (8)
190 (b) A person who willfully violates any provision of this
191 section, if the violation involves:
192 1. Currency, monetary value, or payment instruments, or
193 virtual currency of a value exceeding $300 but less than $20,000
194 in any 12-month period, commits a felony of the third degree,
195 punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
196 2. Currency, monetary value, or payment instruments, or
197 virtual currency of a value totaling or exceeding $20,000 but
198 less than $100,000 in any 12-month period, commits a felony of
199 the second degree, punishable as provided in s. 775.082, s.
200 775.083, or s. 775.084.
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201 3. Currency, monetary value, or payment instruments, or
202 virtual currency of a value totaling or exceeding $100,000 in
203 any 12-month period, commits a felony of the first degree,
204 punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
205 (c) In addition to the penalties authorized by s. 775.082,
206 s. 775.083, or s. 775.084, a person who has been convicted of,
207 or entered a plea of guilty or nolo contendere, regardless of
208 adjudication, to having violated paragraph (b) may be sentenced
209 to pay a fine of up to the greater of $250,000 or twice the
210 value of the currency, monetary value, or payment instruments,
211 or virtual currency whichever is greater, except that on a
212 second or subsequent conviction for or plea of guilty or nolo
213 contendere, regardless of adjudication, to a violation of
214 paragraph (b), the fine may be up to the greater of $500,000 or
215 quintuple the value of the currency, monetary value, or payment
216 instruments, or virtual currency whichever is greater.
217 (d) A person who violates this section is also liable for
218 a civil penalty of up to not more than the greater of the value
219 of the currency, monetary value, or payment instruments, or
220 virtual currency involved or $25,000.
221 Section 4. Subsections (5), (6), and (7) of section
222 560.125, Florida Statutes, are amended to read:
223 560.125 Unlicensed activity; penalties.—
224 (5) A person who violates this section, if the violation
225 involves:
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226 (a) Currency, monetary value, or payment instruments, or
227 virtual currency of a value exceeding $300 but less than $20,000
228 in any 12-month period, commits a felony of the third degree,
229 punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
230 (b) Currency, monetary value, or payment instruments, or
231 virtual currency of a value totaling or exceeding $20,000 but
232 less than $100,000 in any 12-month period, commits a felony of
233 the second degree, punishable as provided in s. 775.082, s.
234 775.083, or s. 775.084.
235 (c) Currency, monetary value, or payment instruments, or
236 virtual currency of a value totaling or exceeding $100,000 in
237 any 12-month period, commits a felony of the first degree,
238 punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
239 (6) In addition to the penalties authorized by s. 775.082,
240 s. 775.083, or s. 775.084, a person who has been convicted of,
241 or entered a plea of guilty or nolo contendere to, having
242 violated this section may be sentenced to pay a fine of up to
243 the greater of $250,000 or twice the value of the currency,
244 monetary value, or payment instruments, or virtual currency
245 whichever is greater, except that on a second or subsequent
246 violation of this section, the fine may be up to the greater of
247 $500,000 or quintuple the value of the currency, monetary value,
248 or payment instruments, or virtual currency whichever is
249 greater.
250 (7) A person who violates this section is also liable for
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251 a civil penalty of up to the greater of not more than the value
252 of the currency, monetary value, or payment instruments, or
253 virtual currency involved or $25,000, whichever is greater.
254 Section 5. Subsection (1) of section 560.204, Florida
255 Statutes, is amended to read:
256 560.204 License required.—
257 (1) Unless exempted, a person may not engage in, or in any
258 manner advertise that they engage in, the selling or issuing of
259 payment instruments or in the activity of a payment instrument
260 seller or money transmitter, for compensation, without first
261 obtaining a license under this part. For purposes of this
262 subsection section, the term "compensation" includes profit or
263 loss on the exchange of currency, monetary value, or virtual
264 currency.
265 Section 6. Subsections (5) and (6) of section 560.208,
266 Florida Statutes, are amended to read:
267 560.208 Conduct of business.—In addition to the
268 requirements specified in s. 560.1401, a licensee under this
269 part:
270 (5) Shall, in the normal course of business, ensure that
271 currency, monetary value, payment instruments, or virtual
272 currency money transmitted is available to the designated
273 recipient within 10 business days after receipt.
274 (6) Shall immediately upon receipt of currency, monetary
275 value, a or payment instrument, or virtual currency provide a
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276 confirmation or sequence number to the customer verbally, by
277 paper, or electronically.
278 Section 7. Paragraph (b) of subsection (2) of section
279 560.2085, Florida Statutes, is amended to read:
280 560.2085 Authorized vendors.—A licensee under this part
281 shall:
282 (2) Enter into a written contract, signed by the licensee
283 and the authorized vendor, which:
284 (b) Includes contract provisions that require the
285 authorized vendor to:
286 1. Report to the licensee, immediately upon discovery, the
287 theft or loss of currency, monetary value, a payment instrument,
288 or virtual currency received for a transmission or for a payment
289 instrument sold;
290 2. Display a notice to the public, in such form as
291 prescribed by rule, that the vendor is the authorized vendor of
292 the licensee;
293 3. Remit all amounts owed to the licensee for all
294 transmissions accepted and all payment instruments sold in
295 accordance with the contract between the licensee and the
296 authorized vendor;
297 4. Hold in trust all currency, monetary value, or payment
298 instruments, or virtual currency received for transmissions or
299 for the purchase of payment instruments from the time of receipt
300 by the licensee or authorized vendor until the time the
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301 transmission obligation is completed;
302 5. Not commingle the currency, monetary value, payment
303 instruments, or virtual currency money received for
304 transmissions accepted or payment instruments sold on behalf of
305 the licensee with the assets money or property of the authorized
306 vendor, except for making change in the ordinary course of the
307 vendor's business;, and
308 6. Ensure that the currency, monetary value, payment
309 instruments, or virtual currency received for transmissions
310 accepted or payment instruments sold money is accounted for at
311 the end of the business day;
312 7.6. Consent to examination or investigation by the
313 office;
314 8.7. Adhere to the applicable state and federal laws and
315 rules pertaining to a money services business; and
316 9.8. Provide such other information or disclosure as may
317 be required by rule.
318 Section 8. Subsections (2) and (3) of section 560.210,
319 Florida Statutes, are renumbered as subsections (3) and (4),
320 respectively, and a new subsection (2) is added to that section
321 to read:
322 560.210 Permissible investments.—
323 (2) Each money transmitter that receives virtual currency,
324 either directly or through an authorized vendor, for the purpose
325 of transmitting such virtual currency from one person to another
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326 location or person must at all times hold virtual currency of
327 the same type and amount owed or obligated to the other location
328 or person. Virtual currency received and held under this
329 subsection is not included in the amount of outstanding money
330 transmissions for purposes of calculating the permissible
331 investments required by subsection (1).
332 Section 9. Paragraphs (a), (e), and (f) of subsection (1)
333 of section 560.211, Florida Statutes, are amended, and paragraph
334 (j) is added to subsection (1) of that section, to read:
335 560.211 Required records.—
336 (1) In addition to the record retention requirements under
337 s. 560.1105, each licensee under this part must make, keep, and
338 preserve the following books, accounts, records, and documents
339 for 5 years:
340 (a) A daily record of payment instruments sold and of
341 currency, monetary value, payment instruments, or virtual
342 currency money transmitted.
343 (e) Records of outstanding payment instruments and of
344 currency, monetary value, payment instruments, or virtual
345 currency money transmitted.
346 (f) Records of each payment instrument paid and of
347 currency, monetary value, payment instruments, or virtual
348 currency money transmission delivered.
349 (j) Any additional records, as prescribed by rule, related
350 to virtual currency.
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351 Section 10. Section 560.212, Florida Statutes, is amended
352 to read:
353 560.212 Financial liability.—A licensee under this part is
354 liable for the payment of all currency, monetary value, payment
355 instruments, or virtual currency money transmitted and payment
356 instruments that it sells, in whatever form and whether directly
357 or through an authorized vendor, as the maker, drawer, or
358 principal thereof, regardless of whether such item is negotiable
359 or nonnegotiable.
360 Section 11. This act shall take effect January 1, 2022.
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CODING: Words stricken are deletions; words underlined are additions.
hb1351-01-c1
COMMERCE COMMITTEE
CS/HB 1351 by Rep. Aloupis
Money Services Businesses
AMENDMENT SUMMARY
April 19, 2021
Amendment 1 by Rep. Aloupis (line 326): The amendment adds the phrase “until the
transmission obligation is completed” to the permissible investments statute in relation to virtual
currency transmission. This change clarifies that the amount of virtual currency a money
transmitter is required to hold is that which is in the process of transmission.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1351 (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 Aloupis offered the following:
3
4 Amendment
5 Remove line 326 and insert:
6 location or person must at all times, until the transmission
7 obligation is completed, hold virtual currency of
693061 - h1351-line 326.docx
Published On: 4/18/2021 6:16:31 PM
Page 1 of 1
CS/HB 1567
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1567 Utility and Communication Service Poles
SPONSOR(S): Tourism, Infrastructure & Energy Subcommittee, DiCeglie and others
TIED BILLS: IDEN./SIM. BILLS: SB 1944
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Tourism, Infrastructure & Energy Subcommittee 16 Y, 1 N, As CS Willson Keating
2) State Administration & Technology 12 Y, 2 N Lee Topp
Appropriations Subcommittee
3) Commerce Committee Willson Hamon
SUMMARY ANALYSIS
“Pole attachment” refers to the process by which telecommunications companies can collocate
telecommunications infrastructure on existing electric utility poles. Telecommunications companies and electric
utilities have an established system of utility poles to carry the wires that move their resources from provider to
the consumer. However, telecommunications companies typically own relatively few poles so they often lease
space from electric utility pole owners. Historically, rates, terms, and conditions for attachments to municipal
and cooperative utility poles have been established through private contracts.
Federal law broadly preempts the regulation of telecommunications services, including pole attachments.
Federal regulations apply only to attachments made to poles owned by investor-owned electric utilities (IOUs);
municipal and cooperative electric utilities are specifically exempted. Federal law allows states to exercise
reverse preemption over the Federal Communications Commission’s (FCC) jurisdiction over pole attachments.
The bill requires the Florida Public Service Commission (PSC) to regulate pole attachments in Florida, taking
over the role currently performed by the FCC. The bill requires the PSC to hear and resolve complaints
concerning rates, charges, terms, conditions, voluntary agreements, or any denial of access relative to pole
attachments. The bill provides that FCC precedent is not binding upon the PSC. Additionally, the bill specifies
that the PSC, upon the request of a party to a complaint proceeding pending before the FCC, must assume
jurisdiction over the matter if it is not yet subject to a final order of the FCC at the time of the request.
The bill defines “redundant pole” and requires that attaching entities remove their pole attachments from a
redundant pole within 180 days of a written request by the pole owner. Under certain circumstances, the pole
owner may transfer or relocate the pole attachment to a new pole at the noncompliant attaching entity's
expense, unless the pole attachments are owned by an electric utility.
The bill requires the PSC to regulate the maintenance of certain telecommunications infrastructure and
requires telecommunications companies to create storm reserve funds overseen by the PSC.
The bill requires the PSC to impose monetary penalties upon any entity that violates the provisions of the bill.
Upon petition by a pole owner, the bill authorizes the PSC to resolve disputes or order the removal or transfer
of pole attachments by noncompliant attaching entities, and requires the PSC to impose monetary penalties.
Revenues collected from these penalties must be used by the PSC to provide broadband infrastructure grants.
The bill requires the PSC to adopt rules by October 1, 2021.
The PSC indicates a fiscal impact to implement the provisions of CS/HB 1567. However, it is expected this can
be absorbed within existing resources. See Fiscal Analysis & Economic Impact Statement.
The bill takes effect 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:
Current Situation
Regulation of Pole Attachments
First deployed in America in 1844 to extend telegraph service, utility poles provide the scaffolding for
the technology of the twenty-first century. In the mid-nineteenth and early twentieth centuries, many
states adopted laws granting rights-of-way (ROW) to construct utility poles, wires, and facilities to
transmit electricity and communications signals. First telegraph, then telephone, electricity, cable,
wireless, and Internet Service Providers have sought to attach facilities to wooden, and later steel or
composite, utility poles. 1
The term pole attachment refers to the process by which communications companies can collocate
communications infrastructure on existing electric utility poles. This reduces the number of poles that
must be built to accommodate utility services, while reducing costs to users of both services by allowing
providers to share costs. Rules governing pole attachments seek to balance the desire to maximize
value for users of both electric and communications services with concerns unique to electric utility
poles, such as safety and reliability. 2 The space requested for a pole attachment is typically one foot.
Pole attachments, originally by mutual agreement but later by federal statute and regulation, provide
non-pole-owning cable and telecommunication service providers (e.g. cable TV, local exchange
carriers) with access to a utility’s distribution poles, conduits, and ROW for:
• Installing fiber, coaxial cable or wires, and other equipment;
• Building an interconnected network; and
• Reaching customers. 3
Congress began regulating pole attachments 4 in 1978. 5 The Telecommunications Act of 1996 6
expanded pole attachment rights to telecommunications 7 carriers. The Act requires utilities 8 to provide
nondiscriminatory access to cable television systems and telecommunications carriers. The Act also
authorizes the Federal Communications Commission 9 (FCC) to regulate the rates, terms, and
conditions of attachments by cable television operators to the poles, conduit, or ROW owned or
controlled by utilities in the absence of parallel state regulation. 10 The Legislation withheld from FCC
jurisdiction the authority to regulate attachments where the utility is a railroad, cooperatively organized,
1 Catherine J.K. Sandoval, Contested Places, Utility Pole Spaces: A Competition and Safety Framework for Analyzing Utility Pole
Association Rules, Roles, and Risks, 69 Cath. U. L. Rev. 473, 474–75 (2020).
2 American Public Power Association, Issue Brief: Preserving the Municipal Exemption from Federal Pole Attachment Regulations (Jan.
2021) https://www.publicpower.org/policy/preserving-municipal-exemption-federal-pole-attachment-regulations (last visited Mar. 13,
2021).
3 Edison Electric Institute, Pole Attachments 101, https://ecfsapi.fcc.gov/file/7020708245.pdf (last visited Mar. 13, 2021).
4 47 U.S.C. § 224(a)(4), defines ‘‘pole attachment’’ as “any attachment by a cable television system or provider of telecommunications
service to a pole, duct, conduit, or right-of-way owned or controlled by a utility.”
5 The Pole Attachment Act of 1978 granted utility pole access to cable companies, and was designed to promote utility competition and
service to the public. Communications Act Amendments of 1978, Pub. L. No. 95-234. (Feb. 21, 1978).
6 Telecommunications Act of 1996, Pub. LA. No. 104-104, 110 Stat. 56 (1996).
7 The term “telecommunications” means the transmission, between or among points specified by the user, of information of the user’s
choosing, without change in the form or content of the information as sent and received. 47 U.S.C. § 153(50).
8 47 U.S.C. § 224(a)(1), defines ‘‘utility’’ as “any person who is a local exchange carrier or an electric, gas, water, steam, or other public
utility, and who owns or controls poles, ducts, conduits, or rights-of-way used, in whole or in part, for any wire communications. Such
term does not include any railroad, any person who is cooperatively organized, or any person owned by the Federal Government or any
State.”
9 The FCC regulates interstate and international communications by radio, television, wire, satellite and cable in all 50 states, the
District of Columbia and U.S. territories. An independent U.S. government agency overseen by Congress, the FCC is the United States'
primary authority for communications law, regulation and technological innovation. FCC, What We Do, https://www.fcc.gov/about-
fcc/what-we-do (last visited Mar 13, 2021).
10 47 U.S.C. § 224.
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or owned by a government entity. 11 Thus, federal pole attachment regulations apply only to investor-
owned electric utilities (IOUs). Municipal and cooperative electric utilities are specifically exempted from
federal pole attachment regulations.
The 1996 Act permits utilities to deny access where there is insufficient capacity and for reasons of
safety, reliability or generally applicable engineering purposes. In addition to establishing a right of
access, the Act provides a rate methodology for “attachments used by telecommunications carriers to
provide telecommunications services” 12 in addition to the existing methodology for attachments “used
by a cable television system solely to provide cable service. 13
Federal law broadly preempts the regulation of telecommunications services. 14 However, federal law
allows states to exercise reverse preemption over the FCC’s jurisdiction of communications
infrastructure access, 15 meaning that once a state adopts its own utility pole access rules, the FCC
loses jurisdiction over pole attachments to the extent that the state regulates such matters. 16
Federal law specifically recognizes the authority of state and local governments to manage the public
ROW, and to require fair and reasonable compensation for the use of such ROW. 17 The law also
provides that states may adopt, on a competitively neutral basis, requirements necessary to preserve
and advance universal service, protect the public safety and welfare, ensure the continued quality of
telecommunications services, and safeguard the rights of consumers.” 18
Pursuant to section 224(c) of the Telecommunications Act of 1996 19, each state that regulates the
rates, terms, and conditions for pole attachments must certify to the FCC that:
• It regulates such rates, terms, and conditions; and
• In so regulating such rates, terms, and conditions, the state has the authority to consider and
does consider the interests of the subscribers of the services offered via such attachments, as
well as the interests of the consumers of the utility services provided by the pole owners.
Furthermore, a state is not considered to regulate the rates, terms, and conditions for pole attachments:
• Unless the state has issued and made effective rules and regulations implementing the state's
regulatory authority over pole attachments; and
• With respect to any individual matter, unless the state takes final action on a complaint
regarding such matter:
o Within 180 days after the complaint is filed with the state, or
o Within the applicable period prescribed for such final action in such rules and regulations
of the state, if the prescribed period does not extend beyond 360 days after the filing of
such complaint.
11 In the Matter of Implementation of Section 224 of the Act A Nat'l Broadband Plan for Our Future, 26 F.C.C. Rcd. 5240, 5245–46
(2011)
12 47 U.S.C. § 224(e).
13 47 U.S.C. § 224(d).
14 “No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the
ability of any entity to provide any interstate or intrastate telecommunications service.” 47 U.S.C. § 253(a).
15 47 U.S.C. § 224(c)(1).
16 Catherine J.K. Sandoval, Contested Places, Utility Pole Spaces: A Competition and Safety Framework for Analyzing Utility Pole
Association Rules, Roles, and Risks, 69 Cath. U. L. Rev. 473, 486–87 (2020).
17 47 U.S.C. § 253(c).
18 47 U.S.C. § 253.
19 47 U.S.C. § 224(c)
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Regulation of Utility Infrastructure in Florida
The Florida Public Service Commission (“PSC” or “commission”) is an arm of the legislative branch of
government. 20 The role of the PSC is to ensure that Florida's consumers receive some of their most
essential services – electric, natural gas, telephone, water, and wastewater – in a safe, affordable, and
reliable manner. 21 In doing so, the PSC exercises regulatory authority over utilities in one or more of
three key areas: rate base/economic regulation; competitive market oversight; and monitoring of safety,
reliability, and service issues. 22
The PSC monitors the safety and reliability of the electric power grid 23 and may order the addition or
repair of infrastructure as necessary. 24 Additionally, the PSC has broad jurisdiction over the rates and
service of investor-owned electric utilities (IOUs) in Florida. However, the PSC does not regulate pole
attachments or provide construction and reliability standards relating to pole attachments. Additionally,
the PSC generally does not regulate providers of communications services, 25 cable television
operators, local exchange carriers, or streetlight fixtures.
Telecommunications carriers in Florida are subject to limited regulation under ch. 364, F.S. During the
2011 legislative session House Bill CS/CS/HB 1231, the “Regulatory Reform Act” (Act), was passed
and signed into law by the Governor, effective July 1, 2011. Under the Act, the Legislature eliminated
most of the PSC’s retail oversight authority over the telecommunications wireline companies, yet
maintained the PSC’s authority over wholesale intercarrier issues. The Act eliminated most of the retail
regulation of local exchange telecommunications services by the PSC, including the elimination of rate
caps on all retail telecommunications services, elimination of telecommunications-related consumer
protection and assistance duties of the PSC, and elimination of the PSC’s remaining oversight of
telecommunications service quality. 26
Effect of the Bill
The bill requires the PSC to regulate pole attachments in Florida, taking over the role currently
performed by the FCC.
The bill defines the following terms:
• "Attaching entity" means a person that is a local exchange carrier, a public utility, 27 a
20 s. 350.001, F.S.
21 FLA. PUBLIC SERVICE COMMISSION, The PSC’s Role, http://www.psc.state.fl.us (last visited Feb. 26, 2021).
22 Id. The PSC regulates five investor-owned electric companies, eight investor-owned natural gas utilities, and 151 investor-owned
water and/or wastewater utilities. While the PSC does not fully regulate municipal or cooperative electric utilities, the Commission does
have jurisdiction, with regard to rate structure, territorial boundaries, bulk power supply operations, and planning, over 35 municipally
owned electric systems and 18 rural electric cooperatives. The PSC has jurisdiction, with regard to territorial boundaries and safety,
over 27 municipally owned natural gas utilities and 4 gas districts, and also exercises safety authority over all electric and natural gas
systems operating in the state. FLA. PUBLIC SERVICE COMMISSION, 2020 ANNUAL REPORT 14 (2020),
http://www.psc.state.fl.us/Files/PDF/Publications/Reports/General/Annualreports/2020.pdf. (last visited Feb. 28, 2021).
23 S. 366.04(5) & (6), F.S.
24 S. 366.05(1) & (8), F.S.
25 Section 202.11(1), F.S., defines “Communications services” as “the transmission, conveyance, or routing of voice, data, audio, video,
or any other information or signals, including video services, to a point, or between or among points, by or through any electronic, radio,
satellite, cable, optical, microwave, or other medium or method now in existence or hereafter devised, regardless of the protocol used
for such transmission or conveyance. The term includes such transmission, conveyance, or routing in which computer processing
applications are used to act on the form, code, or protocol of the content for purposes of transmission, conveyance, or routing without
regard to whether such service is referred to as voice-over-Internet-protocol services or is classified by the Federal Communications
Commission as enhanced or value-added. The term does not include: Information services. Installation or maintenance of wiring or
equipment on a customer’s premises. The sale or rental of tangible personal property. The sale of advertising, including, but not limited
to, directory advertising. Bad check charges. Late payment charges. Billing and collection services. Internet access service, electronic
mail service, electronic bulletin board service, or similar online computer services.”
26 PSC, Local Competition http://www.psc.state.fl.us/Telecommunication/TelecomLocalCompetition (last visited Mar. 13, 2021).
27 Section 366.02(1), F.S., defines “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; but the term “public utility” does not include either a cooperative now or hereafter organized and existing under the
Rural Electric Cooperative Law of the state; a municipality or any agency thereof; any dependent or independent special natural gas
district; any natural gas transmission pipeline company making only sales or transportation delivery of natural gas at wholesale and to
direct industrial consumers; any entity selling or arranging for sales of natural gas which neither owns nor operates natural gas
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communications services provider, a broadband provider, or a cable television operator who
owns or controls pole attachments.
• "Communications services" has the same meaning as in s. 202.11, F.S.
• "Pole" means a pole, duct, conduit, or right-of-way that is used for wire or wireless
communications or electricity distribution and that is owned in whole or in part by a pole owner,
or a streetlight fixture that is owned in whole or in part by a public utility.
• "Pole attachments" means local exchange carrier, electric, communications services,
broadband, or cable television facilities attached to a pole by an entity other than the pole
owner.
• "Pole owner" means a local exchange carrier, a public utility, a communications services
provider, a cable television operator, or other public utility which owns a pole used in whole or in
part, for electrical purposes or for any wire or wireless communications.
• "Redundant pole" means a pole owned or controlled by a pole owner which is:
o Within 50 feet of a new pole which is intended to replace the old pole from which some
or all of the pole attachments have not been removed and transferred to the new pole;
o Left standing after the pole owner has relocated its facilities to underground but on which
pole attachments of other attaching entities remain; or
o Left standing after a pole owner's attachments have been removed from that route or
location to accommodate a new route or design for the delivery of service.
Regulation of Pole Attachments
In the event that a pole owner is unable to reach an agreement with a party seeking pole attachments,
the bill requires the PSC to regulate and enforce rates, charges, terms, and conditions for pole
attachments and to ensure that they are just and reasonable. The bill authorizes the PSC to regulate
attachments by a cable television system or provider of telecommunications service to investor-owned
electric utility poles, attachments to streetlight fixtures, and attachments to poles owned by a
communications services provider. The bill clarifies that the Legislature encourages parties to enter into
voluntary pole attachment agreements, and that voluntary pole attachment agreements do not require
PSC approval.
The bill provides that the PSC’s authority to regulate such matters includes, but is not limited to, the
state regulatory authority provided under federal law. Additionally, the bill requires the PSC to consider
the interests of the subscribers and users of the services offered through pole attachments, as well as
the interests of the consumers of any pole owner providing such attachments, when developing such
rules.
The bill requires the PSC to hear and resolve complaints concerning rates, charges, terms, conditions,
voluntary agreements, or any denial of access relative to pole attachments.
The bill specifies that a party's right to nondiscriminatory access to a pole is identical to the rights
afforded under 47 U.S.C. s. 224(f)(1), and that a pole owner may deny access to its poles on a
nondiscriminatory basis when there is insufficient capacity, for reasons of safety and reliability, and
when required by generally applicable engineering purposes.
The bill requires a pole owner to consider relevant construction and reliability standards approved by
the PSC when evaluating capacity, safety, reliability, and engineering requirements, as well as the
financial and performance-related capabilities of the entity requesting attachment.
The bill provides that FCC precedent is not binding upon the PSC. Additionally, the bill specifies that
the PSC, upon the request of a party to a complaint proceeding pending before the FCC, must assume
jurisdiction over the matter if it is not yet subject to a final order of the FCC at the time of the request.
transmission or distribution facilities within the state; or a person supplying liquefied petroleum gas, in either liquid or gaseous form,
irrespective of the method of distribution or delivery, or owning or operating facilities beyond the outlet of a meter through which natural
gas is supplied for compression and delivery into motor vehicle fuel tanks or other transportation containers, unless such person also
supplies electricity or manufactured or natural gas.”
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By October 1, 2021, the bill requires the PSC to adopt rules to administer and implement these
provisions, including one or more appropriate formulae for apportioning costs, and to provide
certification to the FCC upon adoption of such rules.
The bill specifies that it may not be construed to:
• Prevent a party from entering into a voluntary agreement authorizing a pole owner to remove an
attaching entity's pole attachment.
• Impair the contract rights of a party to a valid pole attachment agreement in existence before
the effective date of the bill.
Regulation of Telecommunications Infrastructure
The bill requires the PSC to regulate the safety, vegetation management, repair, replacement,
maintenance, relocation, emergency response, and storm restoration requirements for poles, conduits,
ducts, pipes, pole attachments, wires, cables, and related plant and equipment of communication
services providers.
The bill requires communications services providers to establish storm reserve funds for the repair and
replacement of facilities after natural disasters.
The bill requires the PSC, by October 1, 2021, to adopt rules to administer and implement these
provisions, including:
• Mandatory pole inspections, including provisions relating to:
o repair or replacement;
o vegetation management requirements for poles owned by providers of communications
services;
o the establishment of storm reserve funds; and
o the sequential and timely removal of pole attachments.
• Monetary penalties for any communication services provider that fails to comply with such rules.
Redundant Poles
The bill enumerates certain legislative findings, as follows:
• It is in the public interest for public utilities, communications services providers, and cable
television operators that own poles to harden their infrastructure to strengthen the ability of their
above-ground infrastructure to withstand extreme weather conditions, by and among other
things, replacing older poles with newer, stronger poles; however, this work combined with the
undergrounding of electrical facilities may result in redundant poles within public rights-of-way
and easements for significant durations because owners of third-party pole attachments may
not keep pace in removing their facilities from the old poles.
• Currently, pole owners that set new poles are prevented from removing redundant poles when
the pole attachments of other entities remain on the old poles.
• Redundant poles in the public rights-of-way and easements are aesthetically unappealing and
potentially create over-crowding of, and unsafe conditions in, the public rights-of-way and
easements.
• It is in the public interest to timely remove pole attachments from redundant poles and to
transfer the ownership of poles from the pole owners who no longer use the poles to the entities
that continue to attach facilities to the poles.
The bill requires that attaching entities remove their pole attachments from a redundant pole within 180
days of an electronic or written request by the pole owner, and requires the PSC to determine by rule
the sufficiency of, and any related requirements for, such a notice. Absent a force majeure event or
other good cause as determined by the PSC, the pole owner may transfer or relocate the pole
attachment to the new pole at the noncompliant attaching entity's expense, unless the pole
attachments are owned by an electric utility. The noncompliant attaching entity must indemnify, defend,
and hold harmless the pole owner and its directors, officers, agents and employees from and against all
liability, except to the extent of any finding of gross negligence or willful misconduct, including
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attorneys’ fees and litigation costs, arising in connection with the transfer of the pole attachment from a
redundant pole to a new pole by the pole owner.
Relating to unused pole attachments, the bill:
• Authorizes the pole owner to remove the pole attachment at the noncompliant attaching entity's
expense, unless the PSC finds good cause for noncompliance.
• Authorizes the pole owner to sell or dispose of the pole attachment.
• Requires the noncompliant attaching entity to indemnify, defend, and hold harmless the pole
owner and its directors, officers, agents, and employees from and against all liability, except to
the extent of any finding of gross negligence or willful misconduct, including attorney fees and
litigation costs, arising in connection with the removal, transfer, sale, or disposal of the pole
attachments from a redundant pole by the pole owner.
In the event that a pole owner removes and relocates its overhead facilities or converts its overhead
facilities to underground and the attaching entity does not remove their attachments within 180
calendar days of the written notice, unless good cause is found by the PSC, the bill:
• Authorizes a pole owner to transfer legal title of the redundant pole, by operation of law, to an
attaching entity.
• Requires the attaching entity to pay the pole owner an amount equal to the total of the
remaining book value for all poles,
• Allows the pole owner to enforce their rights in circuit court, and specifies that the prevailing
party is entitled to recover attorney fees and court costs.
• Entitles the pole owner to prejudgment interest.
Upon transfer of title, all obligation, responsibility, and liability incumbent upon a pole owner becomes
the legal obligation, responsibility, and liability of the new pole owner.
The bill enables the PSC to require, by rule, that an attaching entity post security instruments 28 in favor
of pole owners in amounts reasonably sufficient to cover the cost of the removal, transfer, sale, or
disposal of pole attachments.
Monetary Penalties
The bill requires the PSC to impose monetary penalties, as defined by rule, upon any entity that
violates the provisions of the bill. Although the specifics of the monetary penalties will be outlined by
PSC in rule, current law authorizes the PSC to impose and collect a penalty up to $5,000 per offense
per day that an entity willfully violates any lawful rule or order of the PSC. 29 Upon petition by a pole
owner, the bill authorizes the PSC to order the removal or transfer of pole attachments by noncompliant
attaching entities, or issue orders to resolve disputes relating to the transfer of title or the remaining
book value of such poles.
The bill specifies that the proceeds of any monetary penalties must be used by the PSC to provide
grants for the installing and upgrading of broadband infrastructure in unserved and underserved rural
and low-income areas of this state. The bill requires the PSC to establish criteria for the award of grants
from the fund 30 to businesses and organizations that have demonstrated the ability to construct and
install infrastructure and that have submitted an application and proposal detailing how the grant funds
would further the objectives of this subsection to expand broadband services in unserved and
underserved areas.
Rulemaking, Generally
28 A security instrument is a performance bond or an equivalent financial instrument that guarantees payment for certain obligations.
29 S. 366.095, F.S.
30 The bill does not specify the fund from which the collected penalties will be used for broadband infrastructure grants.
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The bill requires the PSC to adopt rules which implement the bill by October 1, 2021, including rules
providing for the timely and coordinated removal of all pole attachments from redundant poles and to
establish monetary penalties.
The bill takes effect upon becoming law.
B. SECTION DIRECTORY:
Section 1. Amends s. 366.02, F.S.; defining terms.
Section 2. Amends s. 366.04, F.S.; relating to jurisdiction of the Public Service Commission.
Section 3. Creates s. 366.97, F.S.; relating to redundant poles; transfer of ownership; and
penalties.
Section 4. Provides a directive to the Division of Law Revision.
Section 5. Provides an effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None. The bill does not authorize the PSC to impose new or existing regulatory assessment fees on
communications services providers to account for its new regulatory responsibilities over these
providers. 31 However, the bill requires the PSC to impose monetary penalties on entities that do not
comply with the provisions of the bill. Current law 32 authorizes the PSC to impose a penalty up to
$5,000 per occurrence, per day. Any additional revenues collected by the PSC for penalties
imposed under the bill must be used to provide broadband infrastructure grants. Therefore, the bill
has no fiscal impact on state revenues.
31 See s. 364.336, F.S.
32 S. 366.095, F.S.
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2. Expenditures:
The bill is likely to have a fiscal impact on the PSC’s Regulatory Trust Fund, as the PSC is directed
to adopt rules and regulate entirely new matters, including pole attachments, reliability of
communications services infrastructure, and broadband infrastructure grants.
The PSC estimates that up to 13 new positions (FTE) and a total of $925,566 ($186,123
nonrecurring) in additional budget authority will be needed to implement the bill. 33 A breakdown of
the positions and funding is provided below.
Category Amount
Salaries and Benefits (13 FTE) $656,919
- 6 Public Utility Analysts
- 4 Engineer Specialists
- 3 Attorneys
Expense Package: 13 new FTE $82,524
Total Recurring Costs $739,443
Expense package: 13 new FTE $50,635
Other Operating Expenses $135,488
- 2 new vehicles
- Hardware/Application Development
Total Nonrecurring Costs $186,123
Total Costs for FY 2021-22 $925,566
The PSC currently has a total of 33 vacant positions (FTE), with 22 FTE vacant over 180 days. The
annualized amount of these vacancies is approximately $1.3 million. Current vacancies and
historical reversions could offset the need for additional funding for the PSC during FY 2021-22.
Therefore, due to the high number of vacant positions and annual reversions averaging
approximately $1.4 million in budget authority over the last three fiscal years, the PSC will likely be
able to handle the workload associated with CS/HB 1567 within existing resources.
Public Service Commission
Reversions for the Last 3 Years
Appropriation Category FY 17-18 FY 18-19 FY 19-20
Salaries and Benefits -$636,278 -$698,524 -$982,721
Other Personal Services -$43,862 -$43,666 -$40,583
Expenses -$477,549 -$419,660 -$434,576
Operating Capital Outlay -$93,805 -$68,675 -$12,563
Contracted Services -$98,957 -$85,494 -$97,867
Other Data Processing Services -$7,540 -$13,780 -$1,318
Totals -$1,357,991 -$1,329,799 -$1,569,628
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
33 Email from Peter Queirolo, Budget Analyst, Public Service Commission, RE: PSC Explanation of the Fiscal Impact of HB 1567 (Mar.
22, 2021).
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Depending on the PSC’s implementation of its authority over pole attachments under the bill, the
financial and legal responsibilities of parties to pole attachment arrangements in Florida could change
substantially.
It is likely that the PSC’s adoption of rules and implementation of this new authority will involve litigation
between the affected parties.
Further, entities with attachments on redundant poles may face negative financial impacts not
contemplated in current negotiated pole attachment agreements.
The bill will impose new regulatory expenses on communications service providers that own poles,
wires, and other facilities in the state.
D. FISCAL COMMENTS:
The bill requires communications services providers to establish storm reserve funds for the repair and
replacement of facilities after natural disasters. PSC is required to adopt rules addressing this provision
of the bill. It is anticipated the PSC will handle the rulemaking process within existing resources.
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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:
The bill requires the PSC to adopt rules by October 1, 2021. See Drafting Issues or Other Comments.
C. DRAFTING ISSUES OR OTHER COMMENTS:
The bill requires the PSC, upon request by a party to a complaint proceeding pending before the FCC,
to take jurisdiction over the matter. This could lead to forum shopping for specific pending complaints
and cause additional expenses due to relitigation.
The bill requires the PSC to use the proceeds from certain monetary penalties to provide grants for the
installation of infrastructure in certain areas. The PSC will need to create a grant program to implement
this section. The PSC does not have experience in implementing grant programs.
The bill requires the PSC to adopt implementing rules by October 1, 2021. While the PSC has control
over the timing of proposing a rule, the timing of rule adoption depends on matters outside of its control,
including challenges brought by stakeholders.
The new statute created in the bill, s. 366.97, F.S., states the PSC “shall establish criteria for the award
of grants from the fund to businesses and organizations” for constructing and installing infrastructure to
expand broadband services. It is unclear what fund is being referenced. Chapter 366, F.S., does not
specifically define the term “fund”. The PSC can establish a separate account within the Regulatory
Trust Fund or submit a Legislative Budget Request in a future legislative session to create a new trust
fund to account for revenues received from penalties and grant fund awards authorized in the bill.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On March 16, 2021, the Tourism, Infrastructure & Energy Subcommittee adopted a strike-all amendment
and reported the bill favorably as a committee substitute. The amendment:
• Clarifies that “broadband service providers” are also attaching entities.
• Specifies that the Florida Public Service Commission (PSC) “shall” hear and resolve complaints
concerning pole attachments.
• Requires the PSC to provide certification to the Federal Communications Commission upon the
adoption of certain rules.
• Removes a liability provision for pole owners relating to unused poles.
• Increases the time for an attaching entity to remove its pole attachments from 90 to 180 days.
• Clarifies that certain notices may be sent electronically.
• Provides an exception for certain actions for good cause as determined by the PSC.
• Authorizes the PSC to issue orders involving certain disputes between pole owners and attaching
entities.
The staff analysis has been updated to reflect the committee substitute.
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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 1567 2021
1 A bill to be entitled
2 An act relating to utility and communication service
3 poles; amending s. 366.02, F.S.; defining terms;
4 amending s. 366.04, F.S.; requiring the Public Service
5 Commission to regulate and enforce rates, charges,
6 terms, and conditions for pole attachments under
7 certain circumstances; providing requirements for such
8 rules; providing construction; providing situations
9 under which a pole owner may deny access to the
10 owner's poles on a nondiscriminatory basis; requiring
11 the commission to hear and resolve complaints
12 concerning rates, charges, terms, conditions,
13 voluntary agreements, and denial of access relative to
14 pole attachments; requiring the commission, at the
15 request of a party, to assume jurisdiction over
16 certain complaints before the Federal Communications
17 Commission; requiring the commission to adopt rules by
18 a specified date; requiring the commission to regulate
19 the safety, vegetation management, repair,
20 replacement, maintenance, relocation, emergency
21 response, and storm restoration requirements for
22 certain plants and equipment of communications
23 services providers; requiring the commission to adopt
24 rules, including monetary penalties, by a specified
25 date; creating s. 366.97, F.S.; providing legislative
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26 findings; requiring attaching entities to remove their
27 pole attachments from redundant poles within a
28 specified timeframe after receipt of electronic or
29 written notice from the pole owner; requiring the
30 commission to determine by rule the sufficiency of,
31 and requirements for, such notice; authorizing a pole
32 owner or its agent to transfer or relocate pole
33 attachments of an attaching entity at the entity's
34 expense under certain circumstances; providing an
35 exception; authorizing a pole owner or its agent to
36 remove and sell or dispose of certain pole
37 attachments; requiring that the pole owner and its
38 directors, officers, agents, and employees be held
39 harmless under certain circumstances for such actions;
40 authorizing the commission to require by rule
41 attaching entities to post certain security
42 instruments; authorizing certain pole owners to
43 transfer legal title of a redundant pole to an
44 attaching entity that has not removed a pole
45 attachment within a specified timeframe; providing for
46 such transfer of title; providing for the transfer of
47 obligation, responsibility, and liability of a pole
48 owner to the new pole owner upon such a transfer of
49 title; requiring the commission to impose monetary
50 penalties for violations; requiring the commission to
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51 provide grants to install and upgrade broadband
52 infrastructure in specified areas of this state from
53 any monetary penalties collected; providing
54 construction; requiring the commission to adopt rules
55 by a specified date; providing a directive to the
56 Division of Law Revision; providing an effective date.
57
58 Be It Enacted by the Legislature of the State of Florida:
59
60 Section 1. Subsection (4) through (9) are added to section
61 366.02, Florida Statutes, to read:
62 366.02 Definitions.—As used in this chapter:
63 (4) "Attaching entity" means a person that is a local
64 exchange carrier, a public utility, a communications services
65 provider, a broadband service provider, or a cable television
66 operator that owns or controls pole attachments.
67 (5) "Communications services" has the same meaning as in
68 s. 202.11(1).
69 (6) "Pole" means a pole, duct, conduit, or right-of-way
70 that is used for wire or wireless communications or electricity
71 distribution and that is owned in whole or in part by a pole
72 owner, or a streetlight fixture that is owned in whole or in
73 part by a public utility.
74 (7) "Pole attachments" means local exchange carrier,
75 electric, communications services, broadband, or cable
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76 television facilities attached to a pole by an entity other than
77 the pole owner.
78 (8) "Pole owner" means a local exchange carrier, a public
79 utility, a communications services provider, a cable television
80 operator, or other public utility which owns a pole used in
81 whole or in part, for electrical purposes or for any wire or
82 wireless communications.
83 (9) "Redundant pole" means a pole owned or controlled by a
84 pole owner which is:
85 (a) Within 50 feet of a new pole which is intended to
86 replace the old pole from which some or all of the pole
87 attachments have not been removed and transferred to the new
88 pole;
89 (b) Left standing after the pole owner has relocated its
90 facilities to underground but on which pole attachments of other
91 attaching entities remain; or
92 (c) Left standing after a pole owner's attachments have
93 been removed from that route or location to accommodate a new
94 route or design for the delivery of service.
95 Section 2. Subsections (8) and (9) are added to section
96 366.04, Florida Statutes, to read:
97 366.04 Jurisdiction of commission.—
98 (8)(a) The commission shall regulate and enforce rates,
99 charges, terms, and conditions for pole attachments in
100 situations in which a pole owner is unable to reach an agreement
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101 with a party seeking pole attachments, including the types of
102 pole attachments regulated under 47 U.S.C. s. 224(a)(4),
103 attachments to streetlight fixtures, or attachments to poles
104 owned by a communications services provider, to ensure that such
105 rates, charges, terms, and conditions are just and reasonable.
106 The commission's authority under this subsection includes, but
107 is not limited to, the state regulatory authority referenced in
108 47 U.S.C. s. 224(c).
109 (b) In developing the rules, the commission shall consider
110 the interests of the subscribers and users of the services
111 offered through such pole attachments, as well as the interests
112 of the consumers of any pole owner providing such attachments.
113 (c) It is the intent of the Legislature to encourage
114 parties to enter into voluntary pole attachment agreements, and
115 this subsection may not be construed to prevent parties from
116 voluntarily entering into pole attachment agreements, without
117 commission approval.
118 (d) A party's right to nondiscriminatory access to a pole
119 under this subsection is identical to the rights afforded under
120 47 U.S.C. s. 224(f)(1). A pole owner may deny access to its
121 poles on a nondiscriminatory basis when there is insufficient
122 capacity, for reasons of safety and reliability, and when
123 required by generally applicable engineering purposes. A pole
124 owner's evaluation of capacity, safety, reliability, and
125 engineering requirements must consider relevant construction and
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126 reliability standards approved by the commission, and may
127 include an evaluation of the financial and performance-related
128 capabilities of the entity requesting attachment.
129 (e) The commission shall hear and resolve complaints
130 concerning rates, charges, terms, conditions, voluntary
131 agreements, or any denial of access relative to the type of pole
132 attachments regulated under 47 U.S.C. s. 224(a)(4), attachments
133 to streetlight fixtures, or attachments to poles owned by a
134 communications services provider. Federal Communications
135 Commission precedent is not binding upon the commission in the
136 exercise of its authority under this subsection.
137 (f) Upon commencement of its authority under this
138 subsection, the commission, upon the request of a party to a
139 complaint proceeding pending before the Federal Communications
140 Commission, shall assume jurisdiction over the matter if it is
141 not yet subject to a final order of the Federal Communications
142 Commission at the time of the request.
143 (g) The commission shall adopt rules by October 1, 2021,
144 to administer and implement this subsection, including one or
145 more appropriate formulae for apportioning costs, and shall,
146 upon adoption of such rules, provide certification to the
147 Federal Communications Commission pursuant to 47 U.S.C. s.
148 224(c)(2).
149 (9)(a) The commission shall regulate the safety,
150 vegetation management, repair, replacement, maintenance,
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151 relocation, emergency response, and storm restoration
152 requirements for poles, conduits, ducts, pipes, pole
153 attachments, wires, cables, and related plant and equipment of
154 communications services providers. The commission shall require
155 communications services providers to establish storm reserve
156 funds for the repair and replacement of facilities after natural
157 disasters.
158 (b) The commission shall adopt rules by October 1, 2021,
159 to administer and implement this subsection, including, but not
160 limited to:
161 1. Mandatory pole inspections, including repair or
162 replacement; vegetation management requirements for poles owned
163 by communications services providers; the establishment of storm
164 reserve funds; and the timely removal of pole attachments; and
165 2. Monetary penalties to be imposed upon any
166 communications services provider that fails to comply with any
167 such rule of the commission.
168 Section 3. Section 366.97, Florida Statutes, is created to
169 read:
170 366.97 Redundant poles; transfer of ownership; penalties.—
171 (1) The Legislature finds that:
172 (a) It is in the public interest for public utilities,
173 communications services providers, and cable television
174 operators that own poles to harden their infrastructure to
175 strengthen the ability of their above-ground infrastructure to
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176 withstand extreme weather conditions, by and among other things,
177 replacing older poles with newer, stronger poles; however, this
178 work combined with the undergrounding of electrical facilities
179 may result in redundant poles within public rights-of-way and
180 easements for significant durations because owners of third-
181 party pole attachments may not keep pace in removing their
182 facilities from the old poles.
183 (b) Pole owners that set new poles are prevented from
184 removing redundant poles when the pole attachments of other
185 entities remain on the old poles.
186 (c) Redundant poles in the public rights-of-way and
187 easements are aesthetically unappealing and potentially create
188 overcrowding of, and unsafe conditions in, the public rights-of-
189 way and easements.
190 (d) It is in the public interest to timely remove pole
191 attachments from redundant poles and to transfer the ownership
192 of poles from pole owners that are no longer using the poles to
193 entities that continue to attach facilities to the poles.
194 (2)(a) An attaching entity must remove its pole
195 attachments from a redundant pole within 180 calendar days after
196 receipt of electronic or written notice from the pole owner
197 requesting such removal. The commission shall determine by rule
198 the sufficiency of, and requirements for, such notice.
199 (b) If an attaching entity fails to remove a pole
200 attachment pursuant to paragraph (a), except to the extent
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201 excused in the event of a force majeure or other good cause as
202 determined by the commission, the pole owner or its agent may
203 transfer or relocate the pole attachment to the new pole at the
204 noncompliant attaching entity's expense. This subsection does
205 not apply to an electric utility's pole attachments. The
206 noncompliant attaching entity shall indemnify, defend, and hold
207 harmless the pole owner and its directors, officers, agents, and
208 employees from and against all liability, except to the extent
209 of any finding of gross negligence or willful misconduct, and
210 must reimburse the pole owner for its attorney fees and court
211 costs arising in connection with the transfer or relocation of
212 the pole attachment from a redundant pole to a new pole.
213 (c) If a pole attachment is no longer in use by a
214 noncompliant attaching entity, the pole owner or its agent may
215 remove the pole attachment at the noncompliant attaching
216 entity's expense and may sell or dispose of the pole attachment,
217 except to the extent the noncompliance is excused in the event
218 of a force majeure or other good cause as determined by the
219 commission. The noncompliant attaching entity shall indemnify,
220 defend, and hold harmless the pole owner and its directors,
221 officers, agents, and employees from and against all liability,
222 except to the extent of any finding of gross negligence or
223 willful misconduct, and must reimburse the pole owner for its
224 attorney fees and court costs, arising in connection with the
225 removal, transfer, sale, or disposal of the pole attachments
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226 from a redundant pole.
227 (d) The commission may require by rule that an attaching
228 entity post security instruments in favor of pole owners in
229 amounts reasonably sufficient to cover the cost of the removal,
230 transfer, sale, or disposal of pole attachments.
231 (3)(a) When a pole owner removes and relocates its
232 overhead facilities or converts its overhead facilities to
233 underground, in lieu of removal, transfer, sale, or disposal of
234 the pole attachments as provided in subsection (2), the pole
235 owner may transfer legal title of the redundant pole to an
236 attaching entity that has not removed a pole attachment within
237 180 calendar days after receipt of a notice to remove, except to
238 the extent excused in the event of a force majeure or other good
239 cause as determined by the commission.
240 (b) Transfer of title shall occur by operation of law upon
241 the date a written notice of title transfer is sent by the pole
242 owner. The notice of title transfer must include pole
243 identification numbers, if applicable, and must describe with
244 specificity the locations of the pole or poles to be transferred
245 and their corresponding remaining book value.
246 (c) Within 60 days after transferring title, the attaching
247 entity shall remit payment to the transferor pole owner an
248 amount equal to the total of the remaining book value for all
249 poles listed in the notice of title transfer.
250 (d) A transferor pole owner may seek to enforce its rights
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251 under this subsection, including its right to payment, in the
252 circuit court in whose jurisdiction the transferred poles are
253 located. The transferor pole owner is entitled to prejudgment
254 interest at the prevailing statutory rate and the prevailing
255 party in any such action is entitled to recover its reasonable
256 attorney fees and court costs.
257 (e) Upon transfer of title, all obligation,
258 responsibility, and liability incumbent upon a pole owner in
259 this state, including, but not limited to, safety, vegetation
260 management, repair, replacement, maintenance, relocation,
261 removal, emergency response, storm restoration, taxes, and
262 third-party liability, shall immediately become the legal
263 obligation, responsibility, and liability of the new pole owner.
264 The transferor pole owner is relieved of all such obligation,
265 responsibility, and liability immediately upon transfer of
266 title.
267 (4) The commission shall impose monetary penalties upon
268 any entity subject to its jurisdiction which is found to be in
269 violation of this section. Upon petition by a pole owner, the
270 commission may issue orders requiring the removal or transfer of
271 pole attachments by noncompliant attaching entities and may
272 issue orders resolving disputes between pole owners and
273 attaching entities over the transfer of title of poles or the
274 amount of remaining book value of transferred poles. The
275 commission shall impose monetary penalties in accordance with
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276 this section.
277 (5) All monetary penalties assessed and collected by the
278 commission pursuant to this section must be used by the
279 commission to provide grants for the installing and upgrading of
280 broadband infrastructure in unserved and underserved rural and
281 low-income areas of this state. The commission shall establish
282 criteria for the award of grants from the fund to businesses and
283 organizations that have demonstrated the ability to construct
284 and install infrastructure and that have submitted an
285 application and proposal detailing how the grant funds would
286 further the objectives of this subsection to expand broadband
287 services in unserved and underserved areas.
288 (6) This section may not be construed to do any of the
289 following:
290 (a) Prevent a party at any time from entering into a
291 voluntary agreement authorizing a pole owner to remove an
292 attaching entity's pole attachment. It is the intent of the
293 Legislature to encourage parties to enter into such voluntary
294 agreements without commission approval.
295 (b) Impair the contract rights of a party to a valid pole
296 attachment agreement in existence before the effective date of
297 this act.
298 (7) The commission shall adopt rules by October 1, 2021,
299 to implement this section, including rules providing for the
300 timely and coordinated removal of all pole attachments from
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301 redundant poles and establishing monetary penalties to be
302 imposed against any entity in violation of this section.
303 Section 4. The Division of Law Revision is directed to
304 replace the phrase "the effective date of this act" wherever it
305 occurs in this act with the date this act becomes a law.
306 Section 5. This act shall take effect upon becoming a law.
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PCS for HB 249
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: PCS for HB 249 Specialty License Plates
SPONSOR(S): Commerce Committee
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Commerce Committee Johnson Hamon
SUMMARY ANALYSIS
Approximately 120 specialty license plates are available to any owner or lessee of a motor vehicle who is
willing to pay the additional annual use fee for such plate. The collected fees are distributed by the Department
of Highway Safety and Motor Vehicles (DHSMV) to statutorily designated organizations in support of a
particular cause or charity. Prior to production of a specialty license plate, the law requires the sale of at least
3,000 presale vouchers. The lowest selling plates are subject to discontinuance. The law also provides for a
standard specialty license plate for independent colleges and universities located in Florida.
The PCS authorizes purchasers of presale vouchers to obtain a refund if the plate has met the presale
requirement, but has not been issued. It also clarifies that DHSMV may not issue a new specialty license plate
until a sufficient number are discontinued so that the number of available plate does not exceed 150. The PCS
also provides that if an independent college or university elects to use the standard template license plate,
DHSMV must discontinue its existing license plate.
The PCS also creates the Florida State Parks, Honor Flight, Biscayne Bay, Disease Prevention & Early
Detection, and Protect Marine Wildlife specialty license plates, each with an annual use fee of $25. Each plate
must bear DHSMV approved colors and designs with “Florida” appearing at the top of the plate and the plate-
related slogan appearing at the bottom of the plate. The annual use fees are distributed as provided in the
provisions related to each specialty license plate.
The PCS will have a negative, but insignificant, fiscal impact to state expenditures associated with DHSMV’s
programming costs associated with the creation of the specialty license plates. These costs can be absorbed
within existing resources.
The bill has an effective date of October 1, 2021.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
The first Florida specialty license plates were enacted in 1986 and included the creation of the
Challenger plate and ten Florida collegiate plates. Today, there are approximately 120 specialty license
plates available to any owner or lessee of a motor vehicle who is willing to pay the additional use fee for
the privilege, typically $25 annually. 1 Current law provides that if the Legislature 2 has approved 150 or
more specialty license plates, the Department of Highway Safety and Motor Vehicles (DHMSV) may
not make any new specialty license plate available for design or issuance until a sufficient number of
plates are discontinued 3 so that the number of plates being issued does not exceed 150. 4
Establishment of Specialty License Plates
Section 320.08053, F.S., provides the statutory requirements to establish a specialty license plate. If a
specialty license plate requested by an organization is approved by law, the organization submits its
proposed art design to DHSMV as soon as practicable, but no later than 60 days after the act
approving the plate becomes a law. 5
Within 120 days after the act approving the specialty license plate becomes law, DHSMV must
establish a method to issue a voucher allowing for the presale of the plate. A $5 processing fee, 6 a
service charge and branch fee, 7 and an annual use fee for the specialty license plate are charged for
the voucher. All other applicable fees are charged at the time the license plate is issued. 8
Within 24 months after establishing a presale specialty license plate voucher, the approved specialty
license plate organization must record with DHSMV a minimum of 3,000 voucher sales 9 before the
license plate may be manufactured. If, at the conclusion of the 24-month presale period, the minimum
sales requirement is not met, the specialty license plate is deauthorized and DHSMV discontinues the
plate’s development and the issuance of the presale vouchers. Upon deauthorization of the specialty
license plate, a purchaser of the specialty license plate voucher may use the annual use fee collected
as a credit towards any other specialty license plate or apply to DHSMV for a refund. 10
New specialty license plates that have been approved by law, but are awaiting issuance, will be issued
in the order they appear in s. 320.08058, F.S., 11 if all statutory requirements, including the presale
requirement, have been met. If the next awaiting specialty license plate has not met its presale
requirement, DHSMV proceeds in the order provided in s. 320.08058, F.S., to identify the next qualified
specialty license plate that has met the presale requirement. DHSMV must cycle through the list in
statutory order. 12
If the Legislature has approved 150 or more specialty license plates, DHSMV may not make any new
specialty license plates available for design or issuance until a sufficient number of plates are
discontinued 13 so that the number of plates being issued is fewer than 150. The 150-license-plate limit
1 Section 320.08056(3)(d), F.S., provides that except if specifically provided in s. 320.08056(4), the annual use fee for a specialty
license plate is $25.
2 Creation of a specialty license plate requires an act of the Legislature.
3 Specialty license plates are discontinued pursuant to s. 320.08056(8), F.S.
4 S. 320.08053(3)(b), F.S.
5 S. 320.08053(1), F.S.
6 The processing fee is prescribed in s. 320.08056, F.S.
7 Service charges and branch fees are prescribed in s. 320.04, F.S.
8 S. 320.08053(2)(a), F.S.
9 In the case of out-of-state college or university license plate, the license plate must register 4,000 voucher sales.
10 S. 320.08053(2)(b), F.S.
11 S. 320.08058, F.S., creates each specialty license plate.
12 S. 320.08053(3)(a), F.S.
13 Specialty license plates will be discontinued pursuant to s. 320.08056(8), F.S.
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applies to all specialty license plates, including those above the minimum sales threshold and those
exempt from the minimum sales threshold. 14
Specialty License Plates, Generally
DHSMV is responsible for developing authorized specialty license plates. 15 DHSMV must issue a
specialty license plate to the owner or lessee of any motor vehicle, except a vehicle registered under
the International Registration Plan, a commercial truck required to display two license plates, or a truck
tractor, upon request and payment of the appropriate license tax and fees. 16 Specific specialty license
plates are authorized for dealer and fleet vehicles. 17 A specialty license plate for motorcycles is
addressed separately in s. 320.08068, F.S.
Each request for a specialty license plate must be made annually to DHSMV or its authorized agent 18
accompanied by the following tax and fees: the vehicle’s required license tax, 19 a processing fee of
$5, 20 a license plate fee, 21 and a license plate annual use fee as required for the specialty license
plate. 22
Independent Colleges and University Standard License Plate
In 2020, the Legislature required DHSMV, in cooperation with Florida’s independent colleges and
universities, to create a standard template specialty license plate with a unique logo or graphic
identifying each independent college or university. Each independent college or university may elect to
use this standard template specialty license plate in lieu of its own specialty license plate. Annual use
fees from the sale of these license plates are distributed to the independent college or university for
which the logo or graphic is displayed and must be used in the same manner as the fees for other
collegiate license plates. 23 Independent colleges and universities opting to use the standard template
specialty license plate will have their plate sales combined for purposes of meeting the 3,000 plate
minimum sales threshold and determining the 150 plate limit. Standard independent college and
university license plates must be ordered directly from DHSMV. 24 However, the law is silent as to what
happens to an independent college or university’s existing collegiate license plate once the college or
university elects to use the standard independent college and university license plate.
Effect of the Bill
The bill clarifies provisions that authorize refunds of specialty license plate vouchers if a plate has met
the presale requirements, but has not been issued. The bill also clarifies that DSHMV may not issue,
instead of make available for design or issuance, any new specialty license plates until the number of
plates being issued does not exceed 150.
The bill also provides that if an independent college or university elects to use the standard template
license plate, DHSMV must discontinue the existing independent college or university’s specialty
license plate.
Florida State Parks License Plate
Current Situation
Founded in 1993, the Florida State Parks Foundation, Inc., supports the Florida State Park system
through programs that preserve and protect state parks, educate visitors about the value of state parks,
encourage community engagement and active use of state parks, and provide financial support to
14 S. 320.08053(3)(b), F.S.
15 S. 320.08056(1), F.S.
16 S. 320.08056(2), F.S.
17 See ss. 320.06(3)(a), 320.0657(2)(a), 320.08(12) and 320.08056(2)(b) and (c), F.S.
18 DHSMV’s authorized agents are the county tax collectors.
19 Motor vehicle license taxes are set forth in s. 320.08, F.S.
20 The $5 processing fee is deposited into the Highway Safety Operating Trust Fund.
21 Section 320.06(1)(b), F.S., provides for a $2.80 annual license plate replacement fee.
22 S. 320.08056(3), F.S.
23 See s. 320.08058(3), F.S.
24 Section 320.08056(12), F.S.
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supplement state funding. The foundation is a non-profit Florida corporation under s. 501(c)(3) of the
Internal Revenue Code. 25
Effect of the Bill
The bill creates the Florida State Parks license plate, with an annual use fee of $25. 26 The plate must
bear DHSMV-approved colors and designs, with “Florida” appearing at the top of the plate and “Explore
Our State Parks” appearing at the bottom of the plate.
The annual use fees from the sale of the plate are distributed to the Florida State Parks Foundation,
Inc. Up to 10 percent of the fees from the sale of the plate may be used for marketing the plate and
costs directly associated with the administration of the Florida State Parks Foundation.
Honor Flight License Plate
Current Situation
Honor Flight’s mission is to transport America’s veterans to Washington, D.C., to visit the memorials
dedicated to honoring those who have served and sacrificed for our country. It is a national network of
independent hubs working together to further Honor Flight’s mission. The network currently serves
veterans from World War II, the Korean War, and the Vietnam War, as well as terminally ill veterans
who served during any era. 27 Florida’s Honor Flight Network hubs are non-profit corporations under s.
501(c)(3) of the Internal Revenue Code. Honor Flight Hubs in Florida include Collier-Lee, First Coast,
Central Florida, West Central Florida, South Florida, Tallahassee, Southeast Florida, Southwest
Florida, Space Coast, and Villages. 28
Effect of the Bill
The bill creates the Honor Flight license plate, with an annual use fee of $25. The plate must bear
DHSMV-approved colors and designs, with “Florida” appearing at the top of the plate and “Honor
Flight” appearing at the bottom of the plate.
The annual use fees from the sale of the plate are distributed equally among Florida’s Honor Flight
Network Hubs. Up to 10 percent of the fees from the sale of the plate may be used for marketing the
plate and costs directly associated promoting and marketing the license plate. The remaining fees must
be used to further Honor Flight.
The bill also authorizes fees collected from the sale of the Honor Flight license plate to be spent outside
of the State of Florida.
Biscayne Bay License Plate
Current Situation
Established in 1967, The Miami Foundation (foundation) is focused on building a stronger Miami and
has invested more than $400 million into the community. The foundation has partnered with individuals,
families, and corporations who have created more than 1,000 personalized, philanthropic funds, and it
has awarded $350 million in grants. 29 The foundation is registered as a not-for-profit corporation with
the Department of State.
Biscayne Bay is the largest estuary on the coast of southeast Florida and is contiguous with the
southern Florida Everglades and Florida Bay. 30
Effect of the Bill
25 Florida State Parks Foundation Website, https://floridastateparksfoundation.org/About-Us1 (last visited Jan. 14, 2021).
26 The $25 annual use fee is provided for in existing s. 320.08056(3)(d), F.S.
27 Honor Flight, https://www.honorflight.org/about-us.html (last visited Feb. 2, 2021).
28 Honor Flight, https://www.honorflight.org/regional-honor-flight-hubs.html#florida (last visited Mar. 5, 2021).
29 The Miami Foundation Website, https://miamifoundation.org/about (last visited Feb. 3, 2021).
30 Discover Biscayne Bay Website: http://www.discoverbiscaynebay.org/ (last visited Feb. 3, 2021).
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The bill creates the Biscayne Bay specialty license plate, with an annual use fee of $25. The plate must
bear DHSMV-approved colors and designs, with “Florida” appearing at the top of the plate and “Protect
Biscayne Bay” appearing at the bottom of the plate.
The annual use fees from the sale of the plate are distributed to The Miami Foundation to be used as
follows:
• Up to 10 percent of the fees may be used for promotion and marketing the license plate and for
direct reimbursement for administrative costs, startup costs, and costs incurred in the
development and approval process of the license plate. All vendors associated with
administrative costs must be selected by competitive bid.
• The remaining fees must be used to raise awareness and support the mission and efforts of
conserving Biscayne Bay. The Miami Foundation’s Board of Trustees must approve and is
accountable for all such expenditures.
Disease Prevention & Early Detection License Plate
Current Situation
Established in 2005 with the goal of providing at-risk women access to early detection and proper
treatment for breast cancer, Women’s Breast & Heart Initiative (WBHI) created a door-to-door
neighborhood outreach program that increases awareness of breast health and the importance of early
detection, as well as provides access to mammograms for women who are uninsured and underserved.
In 2013, WBHI incorporated education and awareness of heart disease – the leading cause of death in
women – into its grassroots campaigns. 31 The Woman’s Breast & Heart Initiative, Florida Affiliate, Inc.,
is registered as a not for profit corporation with the Department of State.
Effect of the Bill
The bill creates the Disease Prevention & Early Detection specialty license plate, with an annual use
fee of $25. The plate must bear DHSMV-approved colors and designs, with “Florida” appearing at the
top of the plate and “Disease Prevention & Detection” appearing at the bottom of the plate.
The annual use fees from the sale of the plate are distributed to The Women’s Breast and Heart
Initiative, Florida Affiliate, Inc., which may use up to 10 percent of the proceeds to promote and market
the plate. The remainder of the proceeds must be used by The Women’s Breast & Heart Initiative,
Florida Affiliate, Inc., to provide increased education and awareness relating to early detection,
prevention, and screening of breast and heart issues.
Protect Marine Wildlife License Plate
Current Situation
The Protect Wild Dolphins Alliance, Inc., is a not-for-profit 501(c)3 organization supporting and
research, scientific, and educational activities for the protection and preservation of marine mammals.
These programs include release to the wild programs, the rescue, rehabilitation, release or retirement
of marine mammals as well as the establishment and operation of a safe haven for unwanted or
surplus dolphins and other marine mammals. 32
Effect of the Bill
The bill creates a Protect Marine Wildlife license plate with an annual use fee of $25. The plate must
bear DHSMV-approved colors and designs, with "Florida" appearing at the top of the plate, and
"Protect Marine Wildlife" appearing at the bottom of the plate.
The annual use fees from the sale of the plate are distributed to the Protect Wild Dolphins Alliance,
Inc., which may use up to 10 percent of the proceeds for administration, promotion, and marketing of
the plate. All remaining proceeds must be used by the Protect Wild Dolphins Alliance, Inc., to fund its
31 The Women’s Breast & Heart Initiative, Our Story: https://flbreasthealth.com/about-us/ (Last visited Feb. 2, 2021).
32 Protect Wild Dolphins Alliance,
https://protectwilddolphinsalliance.com/index.html#:~:text=Protect%20Wild%20Dolphins%20Alliance%20rescues,sick%20and%20injure
d%20marine%20animals. (last visited Apr. 17, 2021).
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conservation, research, and educational programs that focus on the conservation of Florida's
threatened and protected marine wildlife species.
The bill has an effective date of October 1, 2021.
B. SECTION DIRECTORY:
Section 1 Amends s. 320.08053, F.S., relating to the establishment of specialty license plates.
Section 2 Amends s. 320.08056, F.S., relating to specialty license plates.
Section 3 Amends s. 320.08058, F.S., relating to specialty license plates.
Section 4 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:
DHSMV will incur programming costs associated with the creation of this specialty license plate.
One specialty license plate with a single distribution recipient will require between 200 and 250
hours of programming at a rate of $35 to $40 per hour. 33 This programing can be done using
existing DHSMV resources.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Once a new specialty license plate goes into production, the recipient organizations may see an
increase in revenues associated with the sale of the license plate.
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.
33 Email from Kevin Jacobs, Legislative Affairs Director, Florida Department of Highway Safety and Motor Vehicles, RE: Specialty
License Plates, (Jan. 26, 2021).
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2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill does not require rulemaking, nor does it provide a grant of rulemaking.
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
PCS for HB 249 ORIGINAL 2021
1 A bill to be entitled
2 An act relating to specialty license plates; amending
3 s. 320.08053, F.S.; authorizing a refund of the annual
4 use fee if a specified condition is met; amending s.
5 320.08056, F.S.; providing that the Department of
6 Highway Safety and Motor Vehicles may not issue any
7 new specialty license plates until a sufficient number
8 of plates are discontinued; providing an exception to
9 the requirement that specialty license plate annual
10 use fees and interest earned from those fees only be
11 expended in this state; amending s. 320.08058, F.S.;
12 requiring the department to develop specified
13 specialty license plates; providing for the
14 distribution and use of fees collected from the sale
15 of such plates; providing an effective date.
16
17 Be It Enacted by the Legislature of the State of Florida:
18
19 Section 1. Paragraph (b) of subsection (2) and paragraph
20 (b) of subsection (3) of section 320.08053, Florida Statutes,
21 are amended to read:
22 320.08053 Establishment of specialty license plates.—
23 (2)
24 (b) Within 24 months after the presale specialty license
25 plate voucher is established, the approved specialty license
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26 plate organization must record with the department a minimum of
27 3,000 voucher sales, or in the case of an out-of-state college
28 or university license plate, 4,000 voucher sales, before
29 manufacture of the license plate may commence. If, at the
30 conclusion of the 24-month presale period, the minimum sales
31 requirement has not been met, the specialty plate is
32 deauthorized and the department shall discontinue development of
33 the plate and discontinue issuance of the presale vouchers. Upon
34 deauthorization of the license plate or if the plate has met the
35 presale requirement but has not been issued, a purchaser of the
36 license plate voucher may use the annual use fee collected as a
37 credit towards any other specialty license plate or apply for a
38 refund on a form prescribed by the department.
39 (3)
40 (b) If the Legislature has approved 150 or more specialty
41 license plates, the department may not issue make any new
42 specialty license plates available for design or issuance until
43 a sufficient number of plates are discontinued pursuant to s.
44 320.08056(8) such that the number of plates being issued does
45 not exceed 150. Notwithstanding s. 320.08056(8)(a), the 150-
46 license-plate limit includes license plates above the minimum
47 sales threshold and those exempt from that threshold.
48 Section 2. Paragraph (a) of subsection (10) and subsection
49 (12) of section 320.08056, Florida Statutes, are amended to
50 read:
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51 320.08056 Specialty license plates.—
52 (10)(a) A specialty license plate annual use fee collected
53 and distributed under this chapter, or any interest earned from
54 those fees, may not be used for commercial or for-profit
55 activities nor for general or administrative expenses, except as
56 authorized by s. 320.08058 or to pay the cost of the audit or
57 report required by s. 320.08062(1). The fees and any interest
58 earned from the fees may be expended only for use in this state
59 unless the annual use fee is derived from the sale of United
60 States Armed Forces and veterans-related specialty license
61 plates pursuant to paragraph (3)(d) for the Support Our Troops,
62 and American Legion, and Honor Flight license plates; paragraphs
63 (4)(b), (q), and (v) for the Florida Salutes Veterans, United
64 States Marine Corps, and Military Services license plates,
65 respectively; and s. 320.0891 for the U.S. Paratrooper license
66 plate.
67 (12) Notwithstanding s. 320.08058(3)(a), the department,
68 in cooperation with the independent colleges or universities as
69 defined in s. 1009.89 or s. 1009.891, shall create a standard
70 template specialty license plate with a unique logo or graphic
71 identifying each independent college or university. Each
72 independent college or university may elect to use this standard
73 template specialty license plate in lieu of its own specialty
74 license plate. Annual use fees from the sale of these license
75 plates shall be distributed to the independent college or
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76 university for which the logo or graphic is displayed on the
77 license plate and shall be used as provided in s. 320.08058(3).
78 Independent colleges or universities opting to use the standard
79 template specialty license plate shall have their plate sales
80 combined for purposes of meeting the minimum license plate sales
81 threshold in paragraph (8)(a) and for determining the license
82 plate limit in s. 320.08053(3)(b). Specialty license plates
83 created pursuant to this subsection must be ordered directly
84 from the department. If the independent college or university
85 elects to use the standard template license plate, the
86 department shall discontinue the existing specialty license
87 plate.
88 Section 3. Subsections (112) through (116) are added to
89 section 320.08058, Florida Statutes, to read:
90 320.08058 Specialty license plates.—
91 (112) FLORIDA STATE PARKS LICENSE PLATES.—
92 (a) The department shall develop a Florida State Parks
93 license plate as provided in this section and s. 320.08053. The
94 plate must bear the colors and design approved by the
95 department. The word "Florida" must appear at the top of the
96 plate, and the words "Explore Our State Parks" must appear at
97 the bottom of the plate.
98 (b) The annual use fees from the sale of the plate shall
99 be distributed to the Florida State Parks Foundation, Inc., a
100 nonprofit Florida corporation under s. 501(c)(3) of the Internal
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101 Revenue Code, the mission of which is to preserve, protect,
102 sustain, and grow Florida state parks. Up to 10 percent of the
103 fees may be used for marketing of the plate and costs directly
104 associated with administration of the foundation.
105 (113) HONOR FLIGHT LICENSE PLATES.—
106 (a) The department shall develop an Honor Flight license
107 plate as provided in this section and s. 320.08053. The plate
108 must bear the colors and design approved by the department. The
109 word "Florida" must appear at the top of the plate, and the
110 words "Honor Flight" must appear at the bottom of the plate.
111 (b) The annual use fees from the sale of the plate shall
112 be distributed equally among the Honor Flight Network hubs in
113 this state, each of which is a nonprofit corporation under s.
114 501(c)(3) of the Internal Revenue Code, to be used as follows:
115 1. Up to 10 percent of the fees may be used for promotion
116 and marketing of the license plate.
117 2. The remaining fees shall be used to further the Honor
118 Flight Network's mission of transporting military veterans to
119 Washington, D.C., in order to visit the memorials dedicated to
120 honoring those who have served and sacrificed for the United
121 States.
122 (114) BISCAYNE BAY LICENSE PLATES.—
123 (a) The department shall develop a Biscayne Bay license
124 plate as provided in this section and s. 320.08053. The plate
125 must bear the colors and design approved by the department. The
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126 word "Florida" must appear at the top of the plate, and the
127 words "Protect Biscayne Bay" must appear at the bottom of the
128 plate.
129 (b) The annual use fees from the sale of the plate shall
130 be distributed to The Miami Foundation, a Florida nonprofit
131 corporation, to be used as follows:
132 1. Up to 10 percent of the fees may be used for promotion
133 and marketing of the license plate and for direct reimbursement
134 for administrative costs, startup costs, and costs incurred in
135 the development and approval process of the license plate. All
136 vendors associated with administrative costs shall be selected
137 by competitive bid.
138 2. The remaining fees shall be used to raise awareness and
139 support the mission and efforts of conserving Biscayne Bay. The
140 Miami Foundation Board of Trustees must approve and is
141 accountable for all such expenditures.
142 (115) DISEASE PREVENTION & EARLY DETECTION LICENSE
143 PLATES.—
144 (a) The department shall develop a Disease Prevention &
145 Early Detection license plate as provided in this section and s.
146 320.08053. The plate must bear the colors and design approved by
147 the department. The word "Florida" must appear at the top of the
148 plate, and the words "Disease Prevention & Early Detection" must
149 appear at the bottom of the plate.
150 (b) The license plate annual use fees shall be distributed
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151 to The Women's Breast & Heart Initiative, Florida Affiliate,
152 Inc., a Florida nonprofit corporation, which may use a maximum
153 of 10 percent of the proceeds to promote and market the plate.
154 The remainder of the proceeds shall be used by The Women's
155 Breast & Heart Initiative, Florida Affiliate, Inc., to provide
156 increased education and awareness relating to early detection,
157 prevention, and screening of breast and heart issues.
158 (116) PROTECT MARINE WILDLIFE LICENSE PLATES.—
159 (a) The department shall develop a Protect Marine Wildlife
160 license plate as provided in this section and s. 320.08053. The
161 plate must bear the colors and design approved by the
162 department. The word "Florida" must appear at the top of the
163 plate, and the words "Protect Marine Wildlife" must appear at
164 the bottom of the plate.
165 (b) The annual use fees shall be distributed to the
166 Protect Wild Dolphins Alliance, Inc., which may use up to 10
167 percent of the proceeds for administration, promotion, and
168 marketing of the plate. All remaining proceeds shall be used by
169 the Protect Wild Dolphins Alliance, Inc., to fund its
170 conservation, research, and educational programs that focus on
171 the conservation of Florida's threatened and protected marine
172 wildlife species.
173 Section 4. This act shall take effect October 1, 2021.
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