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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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“Meeting Packet - Commerce Committee Agenda and Staff Analysis (April 19, 2021).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2021-04-19-3098-commerce-committee-meeting-packets-mtg13056-7e9fc6b202/, SHA-256 159cf72e1c46e69a72be4493faf6b31b8a9c1e176d5612af1f29c21e6a5eb919.

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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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DATE: 4/18/2021
                                                          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.




STORAGE NAME: h0057b.COM                                                                               PAGE: 15
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           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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        CS/HB 57                                                                                             2021




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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        CS/HB 57                                                                                             2021




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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         CS/HB 57                                                                                             2021




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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         CS/HB 57                                                                                             2021




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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         CS/HB 57                                                                                             2021




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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         CS/HB 57                                                                                             2021




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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         CS/HB 57                                                                                             2021




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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         CS/HB 57                                                                                             2021




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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         CS/HB 57                                                                                             2021




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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         CS/HB 57                                                                                             2021




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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         CS/HB 57                                                                                             2021




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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         CS/HB 57                                                                                             2021




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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         CS/HB 57                                                                                             2021




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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         CS/HB 57                                                                                             2021




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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         CS/HB 57                                                                                             2021




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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         CS/HB 57                                                                                             2021




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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         CS/HB 57                                                                                             2021




426              Section 11.           This act shall take effect July 1, 2021.




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                           COMMERCE COMMITTEE

                          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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                                                  Bill No. CS/HB 57    (2021)
       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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                                                  Bill No. CS/HB 57    (2021)
       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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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                                           COMMITTEE/SUBCOMMITTEE AMENDMENT
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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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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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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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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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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 .
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                                                               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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           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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        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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        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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         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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         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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         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 .
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                                                   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.




STORAGE NAME: h0273b.COM                                                                                    PAGE: 4
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           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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        CS/HB 273                                                                                            2021




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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        CS/HB 273                                                                                            2021




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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         CS/HB 273                                                                                            2021




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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         CS/HB 273                                                                                            2021




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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         CS/HB 273                                                                                            2021




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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         CS/HB 273                                                                                            2021




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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         CS/HB 273                                                                                            2021




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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         CS/HB 273                                                                                            2021




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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         CS/HB 273                                                                                            2021




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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                                                 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 .
STORAGE NAME: h0305d.COM
DATE: 4/18/2021
                                                          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.
STORAGE NAME: h0305d.COM                                                                                                          PAGE: 2
DATE: 4/18/2021
         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.
STORAGE NAME: h0305d.COM                                                                                                        PAGE: 5
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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:

STORAGE NAME: h0305d.COM                                                                                  PAGE: 8
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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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           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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        CS/HB 305                                                                                            2021




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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        CS/HB 305                                                                                            2021




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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         CS/HB 305                                                                                            2021




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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         CS/HB 305                                                                                            2021




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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         CS/HB 305                                                                                            2021




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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         CS/HB 305                                                                                            2021




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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         CS/HB 305                                                                                            2021




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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         CS/HB 305                                                                                            2021




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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         CS/HB 305                                                                                            2021




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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         CS/HB 305                                                                                            2021




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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         CS/HB 305                                                                                            2021




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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         CS/HB 305                                                                                            2021




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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         CS/HB 305                                                                                            2021




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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         CS/HB 305                                                                                            2021




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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         CS/HB 305                                                                                            2021




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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         CS/HB 305                                                                                            2021




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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         CS/HB 305                                                                                            2021




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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         CS/HB 305                                                                                            2021




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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         CS/HB 305                                                                                            2021




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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         CS/HB 305                                                                                            2021




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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         CS/HB 305                                                                                            2021




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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          CS/HB 305                                                                                            2021




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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          CS/HB 305                                                                                            2021




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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          CS/HB 305                                                                                            2021




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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          CS/HB 305                                                                                            2021




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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          CS/HB 305                                                                                            2021




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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       The analysis is drafted to the committee substitute as passed by the Ways & Means Committee.




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           CS/HB 365                                                                                            2021




    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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        CS/HB 365                                                                                            2021




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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        CS/HB 365                                                                                            2021




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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         CS/HB 365                                                                                            2021




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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         CS/HB 365                                                                                            2021




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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         CS/HB 365                                                                                            2021




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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         CS/HB 365                                                                                            2021




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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         CS/HB 365                                                                                            2021




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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         CS/HB 365                                                                                            2021




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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         CS/HB 365                                                                                            2021




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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         CS/HB 365                                                                                            2021




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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         CS/HB 365                                                                                            2021




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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         CS/HB 365                                                                                            2021




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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         CS/HB 365                                                                                            2021




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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         CS/HB 365                                                                                            2021




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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         CS/HB 365                                                                                            2021




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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         CS/HB 365                                                                                            2021




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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         CS/HB 365                                                                                            2021




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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         CS/HB 365                                                                                            2021




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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         CS/HB 365                                                                                            2021




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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         CS/HB 365                                                                                            2021




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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         CS/HB 365                                                                                            2021




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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         CS/HB 365                                                                                            2021




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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                                                                                                          hb0365-01-c1
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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DATE: 4/18/2021
                                                           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."

STORAGE NAME: h0387e.COM                                                                                PAGE: 7
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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.




STORAGE NAME: h0387e.COM                                                                                   PAGE: 8
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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).
STORAGE NAME: h0387e.COM                                                                                                         PAGE: 9
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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.
STORAGE NAME: h0387e.COM                                                                                   PAGE: 10
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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.
STORAGE NAME: h0387e.COM                                                                                PAGE: 11
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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.




STORAGE NAME: h0387e.COM                                                                               PAGE: 12
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           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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        CS/HB 387                                                                                            2021




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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        CS/HB 387                                                                                            2021




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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         CS/HB 387                                                                                            2021




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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         CS/HB 387                                                                                            2021




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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         CS/HB 387                                                                                            2021




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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         CS/HB 387                                                                                            2021




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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         CS/HB 387                                                                                            2021




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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         CS/HB 387                                                                                            2021




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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         CS/HB 387                                                                                            2021




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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         CS/HB 387                                                                                            2021




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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         CS/HB 387                                                                                            2021




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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         CS/HB 387                                                                                            2021




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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         CS/HB 387                                                                                            2021




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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         CS/HB 387                                                                                            2021




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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         CS/HB 387                                                                                            2021




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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         CS/HB 387                                                                                            2021




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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         CS/HB 387                                                                                            2021




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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         CS/HB 387                                                                                            2021




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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         CS/HB 387                                                                                            2021




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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         CS/HB 387                                                                                            2021




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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         CS/HB 387                                                                                            2021




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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         CS/HB 387                                                                                            2021




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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         CS/HB 387                                                                                            2021




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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         CS/HB 387                                                                                            2021




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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         CS/HB 387                                                                                            2021




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.

                                                      Page 27 of 28

      CODING: Words stricken are deletions; words underlined are additions.
                                                                                                          hb0387-01-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 387                                                                                            2021




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.




                                                      Page 28 of 28

      CODING: Words stricken are deletions; words underlined are additions.
                                                                                                          hb0387-01-c1
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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           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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        CODING: Words stricken are deletions; words underlined are additions.
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        CS/HB 605                                                                                            2021




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

                                                      Page 2 of 15

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        CS/HB 605                                                                                            2021




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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         CS/HB 605                                                                                            2021




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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         CS/HB 605                                                                                            2021




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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         CS/HB 605                                                                                            2021




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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         CS/HB 605                                                                                            2021




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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         CS/HB 605                                                                                            2021




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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         CS/HB 605                                                                                            2021




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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         CS/HB 605                                                                                            2021




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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         CS/HB 605                                                                                            2021




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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         CS/HB 605                                                                                            2021




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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         CS/HB 605                                                                                            2021




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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         CS/HB 605                                                                                            2021




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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         CS/HB 605                                                                                            2021




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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                                                 Bill No. CS/HB 605   (2021)
       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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                                                    Bill No. CS/HB 605   (2021)
       Amendment No. 1


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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                                                   Bill No. CS/HB 605   (2021)
       Amendment No. 1


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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                                           COMMITTEE/SUBCOMMITTEE AMENDMENT
                                                   Bill No. CS/HB 605   (2021)
        Amendment No. 1


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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                                           COMMITTEE/SUBCOMMITTEE AMENDMENT
                                                    Bill No. CS/HB 605   (2021)
        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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                                            COMMITTEE/SUBCOMMITTEE AMENDMENT
                                                   Bill No. CS/HB 605   (2021)
        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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                                           COMMITTEE/SUBCOMMITTEE AMENDMENT
                                                  Bill No. CS/HB 605   (2021)
        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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                                           COMMITTEE/SUBCOMMITTEE AMENDMENT
                                                  Bill No. CS/HB 605   (2021)
        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.




STORAGE NAME: h0613d.COM                                                                                   PAGE: 7
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           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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        CS/CS/HB 613                                                                                         2021




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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        CS/CS/HB 613                                                                                         2021




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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         CS/CS/HB 613                                                                                         2021




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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         CS/CS/HB 613                                                                                         2021




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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         CS/CS/HB 613                                                                                         2021




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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         CS/CS/HB 613                                                                                         2021




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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         CS/CS/HB 613                                                                                         2021




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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         CS/CS/HB 613                                                                                         2021




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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         CS/CS/HB 613                                                                                         2021




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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         CS/CS/HB 613                                                                                         2021




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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         CS/CS/HB 613                                                                                         2021




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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         CS/CS/HB 613                                                                                         2021




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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         CS/CS/HB 613                                                                                         2021




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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         CS/CS/HB 613                                                                                         2021




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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DATE: 3/22/2021
                                           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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        CS/HB 717                                                                                            2021




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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        CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




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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         CS/HB 717                                                                                            2021




801      act, this act shall take effect upon becoming a law.




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                                 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.
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       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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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).
STORAGE NAME: h0815d.COM                                                                                   PAGE: 12
DATE: 4/18/2021
      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.




STORAGE NAME: h0815d.COM                                                                              PAGE: 13
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           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.;

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        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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        CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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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         CS/HB 815                                                                                            2021




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
     908621 - h0815-line323.docx
     Published On: 4/18/2021 6:13:35 PM
                                   Page 1 of 11
                                          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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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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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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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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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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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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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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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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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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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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                                                          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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DATE: 4/18/2021
        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).
STORAGE NAME: h0911b.COM                                                                                                    PAGE: 6
DATE: 4/18/2021
        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.
STORAGE NAME: h0911b.COM                                                                                                 PAGE: 7
DATE: 4/18/2021
         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).
STORAGE NAME: h0911b.COM                                                                                                        PAGE: 8
DATE: 4/18/2021
                 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.
STORAGE NAME: h0911b.COM                                                                                                       PAGE: 9
DATE: 4/18/2021
               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.


STORAGE NAME: h0911b.COM                                                                                   PAGE: 10
DATE: 4/18/2021
   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.
STORAGE NAME: h0911b.COM                                                                                    PAGE: 11
DATE: 4/18/2021
          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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DATE: 4/18/2021
F   L      O   R   I   D   A     H   O   U   S   E      O   F      R   E   P    R   E   S   E   N   T   A   T   I   V   E   S




           CS/HB 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

                                                         Page 1 of 7

        CODING: Words stricken are deletions; words underlined are additions.
                                                                                                            hb0911-01-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 911                                                                                            2021




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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        CS/HB 911                                                                                            2021




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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         CS/HB 911                                                                                            2021




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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         CS/HB 911                                                                                            2021




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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         CS/HB 911                                                                                            2021




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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         CS/HB 911                                                                                            2021




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)
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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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                                             COMMITTEE/SUBCOMMITTEE AMENDMENT
                                                   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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                                                    Bill No. CS/HB 911   (2021)
        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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                                                   Bill No. CS/HB 911   (2021)
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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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                                                    Bill No. CS/HB 911   (2021)
        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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                                                    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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                                                    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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                                                 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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                                                 Bill No. CS/HB 911   (2021)
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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.
STORAGE NAME: h0987c.COM
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
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        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.
STORAGE NAME: h0987c.COM                                                                                                 PAGE: 5
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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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DATE: 4/18/2021
            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.
STORAGE NAME: h0987c.COM                                                                                                       PAGE: 10
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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.
STORAGE NAME: h0987c.COM                                                                                     PAGE: 12
DATE: 4/18/2021
        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.
STORAGE NAME: h0987c.COM                                                                                                PAGE: 13
DATE: 4/18/2021
        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).
STORAGE NAME: h0987c.COM                                                                                        PAGE: 15
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).
STORAGE NAME: h0987c.COM                                                                                              PAGE: 16
DATE: 4/18/2021
       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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           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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        CS/CS/HB 987                                                                                         2021




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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        CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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         CS/CS/HB 987                                                                                         2021




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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          CS/CS/HB 987                                                                                         2021




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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          CS/CS/HB 987                                                                                         2021




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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          CS/CS/HB 987                                                                                         2021




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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          CS/CS/HB 987                                                                                         2021




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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          CS/CS/HB 987                                                                                         2021




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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          CS/CS/HB 987                                                                                         2021




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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          CS/CS/HB 987                                                                                         2021




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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          CS/CS/HB 987                                                                                         2021




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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          CS/CS/HB 987                                                                                         2021




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.
STORAGE NAME: h1239d.COM
DATE: 4/18/2021
                                                          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.
STORAGE NAME: h1239d.COM                                                                                                            PAGE: 2
DATE: 4/18/2021
         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.
STORAGE NAME: h1239d.COM                                                                                                               PAGE: 3
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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

STORAGE NAME: h1239d.COM                                                                                    PAGE: 4
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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:
STORAGE NAME: h1239d.COM                                                                                    PAGE: 5
DATE: 4/18/2021
       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.




STORAGE NAME: h1239d.COM                                                                                  PAGE: 6
DATE: 4/18/2021
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           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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        CS/HB 1239                                                                                           2021




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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        CS/HB 1239                                                                                           2021




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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         CS/HB 1239                                                                                           2021




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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         CS/HB 1239                                                                                           2021




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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         CS/HB 1239                                                                                           2021




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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         CS/HB 1239                                                                                           2021




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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         CS/HB 1239                                                                                           2021




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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         CS/HB 1239                                                                                           2021




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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                                          COMMITTEE/SUBCOMMITTEE AMENDMENT
                                               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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                                          COMMITTEE/SUBCOMMITTEE AMENDMENT
                                               Bill No. CS/HB 1239   (2021)
       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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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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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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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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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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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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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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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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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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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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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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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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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.
STORAGE NAME: h1307d.COM
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).
STORAGE NAME: h1307d.COM                                                                                                    PAGE: 4
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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).
STORAGE NAME: h1307d.COM                                                                                                   PAGE: 5
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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).
STORAGE NAME: h1307d.COM                                                                                                       PAGE: 8
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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.
STORAGE NAME: h1307d.COM                                                                                           PAGE: 9
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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:

STORAGE NAME: h1307d.COM                                                                                 PAGE: 10
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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.


STORAGE NAME: h1307d.COM                                                                                    PAGE: 11
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           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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        CS/HB 1307                                                                                           2021




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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        CS/HB 1307                                                                                           2021




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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         CS/HB 1307                                                                                           2021




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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         CS/HB 1307                                                                                           2021




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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                                                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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                                                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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                                                 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
      117001 - h1307-line110a1.docx
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                                     Page 10 of 11
                                           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.




      117001 - h1307-line110a1.docx
      Published On: 4/18/2021 7:01:32 PM
                                  Page 11 of 11
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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DATE: 4/18/2021
                                                  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.
STORAGE NAME: h1351d.COM                                                                                    PAGE: 8
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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.

STORAGE NAME: h1351d.COM                                                                                  PAGE: 9
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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.
STORAGE NAME: h1351d.COM                                                                                   PAGE: 10
DATE: 4/18/2021
                           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.




STORAGE NAME: h1351d.COM                                                                                PAGE: 11
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           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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        CS/HB 1351                                                                                           2021




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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        CS/HB 1351                                                                                           2021




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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         CS/HB 1351                                                                                           2021




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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         CS/HB 1351                                                                                           2021




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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         CS/HB 1351                                                                                           2021




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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         CS/HB 1351                                                                                           2021




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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         CS/HB 1351                                                                                           2021




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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         CS/HB 1351                                                                                           2021




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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         CS/HB 1351                                                                                           2021




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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         CS/HB 1351                                                                                           2021




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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         CS/HB 1351                                                                                           2021




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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         CS/HB 1351                                                                                           2021




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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         CS/HB 1351                                                                                           2021




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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         CS/HB 1351                                                                                           2021




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.




                                                      Page 15 of 15

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                                                                                                          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.
STORAGE NAME: h1567d.COM
DATE: 4/18/2021
                                                           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.

STORAGE NAME: h1567d.COM                                                                                                        PAGE: 7
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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.

STORAGE NAME: h1567d.COM                                                                                       PAGE: 8
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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).
STORAGE NAME: h1567d.COM                                                                                                   PAGE: 9
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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.




STORAGE NAME: h1567d.COM                                                                                     PAGE: 10
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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.



STORAGE NAME: h1567d.COM                                                                                   PAGE: 11
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           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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        CS/HB 1567                                                                                           2021




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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        CS/HB 1567                                                                                           2021




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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         CS/HB 1567                                                                                           2021




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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         CS/HB 1567                                                                                           2021




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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         CS/HB 1567                                                                                           2021




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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         CS/HB 1567                                                                                           2021




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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         CS/HB 1567                                                                                           2021




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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         CS/HB 1567                                                                                           2021




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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         CS/HB 1567                                                                                           2021




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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         CS/HB 1567                                                                                           2021




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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         CS/HB 1567                                                                                           2021




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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                                                                                                          hb1567-01-c1
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         CS/HB 1567                                                                                           2021




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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                                                                                                          hb1567-01-c1
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.
STORAGE NAME: pcs0249.COM
DATE: 4/18/2021
                                                           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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           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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        PCS for HB 249                             ORIGINAL                                                  2021




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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        PCS for HB 249                             ORIGINAL                                                  2021




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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         PCS for HB 249                             ORIGINAL                                                  2021




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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         PCS for HB 249                             ORIGINAL                                                  2021




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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