Post Meeting Packet - Commerce and Tourism Committee Meeting (November 2, 2021)
Summary
Florida Senate Committee on Commerce and Tourism packet for the meeting of Tuesday, November 2, 2021, with Senator Hooper, Chair. The expanded agenda lists SB 336 by Berman on the Uniform Commercial Code, SM 174 by Pizzo on trade, SB 288 by Garcia on electronic dissemination of commercial recordings and audiovisual works, and SB 434 by Hooper on Florida tourism marketing. SB 434 is marked Favorable, Yeas 10 Nays 0, and SM 174 is marked Fav/CS. A meeting record lists Phillip Suderman of Americans for Prosperity speaking against SB 434 and Samantha Padgett of FL Restaurant & Lodging Assoc. speaking in support of it.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Cite this document
“Post Meeting Packet - Commerce and Tourism Committee Meeting (November 2, 2021).”
Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2021-11-02-post-meeting-packet-4884-de52f2b40d/
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Selection From: 11/02/2021 - Commerce and Tourism (9:00 AM - 11:30 AM) 2022 Regular Session
Customized 11/04/2021 10:38 AM
Agenda Order
Tab 1 SB 336 by Berman; Uniform Commercial Code
Tab 2 SM 174 by Pizzo; Trade
418592 A S RCS CM, Pizzo Delete L.43 - 44: 11/03 09:30 AM
SB 288 by Garcia; (Identical to H 00033) Electronic Dissemination of Commercial Recordings and Audiovisual
Tab 3
Works
Tab 4 SB 434 by Hooper (CO-INTRODUCERS) Torres, Stewart; (Similar to H 00489) Florida Tourism Marketing
Page 1 of 1
2022 Regular Session The Florida Senate
COMMITTEE MEETING EXPANDED AGENDA
COMMERCE AND TOURISM
Senator Hooper, Chair
Senator Wright, Vice Chair
MEETING DATE: Tuesday, November 2, 2021
TIME: 9:00—11:30 a.m.
PLACE: Toni Jennings Committee Room, 110 Senate Building
MEMBERS: Senator Hooper, Chair; Senator Wright, Vice Chair; Senators Diaz, Garcia, Gruters, Hutson, Pizzo,
Powell, Taddeo, and Torres
BILL DESCRIPTION and
TAB BILL NO. and INTRODUCER SENATE COMMITTEE ACTIONS COMMITTEE ACTION
1 SB 336 Uniform Commercial Code; Providing that certain Favorable
Berman restrictions on the effectiveness of terms in specified Yeas 10 Nays 0
agreements and the effectiveness of certain rules of
law, statutes, or regulations related to the discharge
of account debtors and certain restrictions on the
assignment of promissory notes, health-care-
insurance receivables, and certain general
intangibles, respectively, do not apply to a security
interest in an ownership interest in a general
partnership, a limited partnership, or a limited liability
company, etc.
CM 11/02/2021 Favorable
JU
RC
2 SM 174 Trade; Commending Congress for granting trade Fav/CS
Pizzo promotion authority to the executive branch, urging Yeas 10 Nays 0
the executive branch to negotiate a comprehensive
and mutually beneficial free trade agreement between
the United States and the United Kingdom, and
urging Congress to ratify such agreement, etc.
CM 10/18/2021 Temporarily Postponed
CM 11/02/2021 Fav/CS
RC
3 SB 288 Electronic Dissemination of Commercial Recordings Favorable
Garcia and Audiovisual Works; Revising the definition of the Yeas 10 Nays 0
(Identical H 33) term “electronic dissemination”, etc.
CM 11/02/2021 Favorable
JU
RC
4 SB 434 Florida Tourism Marketing; Delaying the scheduled Favorable
Hooper repeal of provisions governing the Florida Tourism Yeas 10 Nays 0
Industry Marketing Corporation and the Division of
Tourism Marketing of Enterprise Florida, Inc.,
respectively, etc.
CM 11/02/2021 Favorable
AP
S-036 (10/2008)
11022021.0942 Page 1 of 2
COMMITTEE MEETING EXPANDED AGENDA
Commerce and Tourism
Tuesday, November 2, 2021, 9:00—11:30 a.m.
BILL DESCRIPTION and
TAB BILL NO. and INTRODUCER SENATE COMMITTEE ACTIONS COMMITTEE ACTION
Other Related Meeting Documents
S-036 (10/2008)
11022021.0942 Page 2 of 2
The Florida Senate
U l i APPEARANCE RECORD
_ /Vfeeting Date
Deliver both copies of this form to Bill Number or Topic
( o erc Senate professional staff conducting the meeting
Committee
Amendment Barcode (if applicable)
Name | . f ok
Phone \i s-
Address
Street ~ Email ©
Speaking:
Against information OR Waive Speaking: In Support Against
PLEASE CHECK ONE OF THE FOLLOWING:
I am appearing without
| | I am a registered lobbyist,
compensation or sponsorship. | | I am not a lobbyist, but received
representing:
something of value for my appearance
(travel, meals, lodging, etc.),
sponsored by:
This form is part of the public record for this meeting.
t-Om friQ/in/ mit
The Florida Senate
Committee Agenda Request
To: Senator Ed Hooper, Chair
Committee on Commerce and Tourism
Subject Committee Agenda Request
Date: October 13, 2021
I respectfully request that Sen te Bill #336, relating to Universal Commercial Code, be placed
on the:
committee agenda at your earliest possible convenience.
next committee agenda.
idnator Lori Berman
Florida Senate, District 31
cc: Senator Tom Wright, Vice Char
Todd McKay, Staff Director
File signed original with committee office S-020 (03/2004)
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: SB 336
INTRODUCER: Senator Berman
SUBJECT: Uniform Commercial Code
DATE: November 1, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Harmsen McKay CM Favorable
2. JU
3. RC
I. Summary:
The model Uniform Commercial Code (UCC) was created to simplify the law that governs
commercial transactions—especially contracts—and to substantially harmonize applicable law
among various jurisdictions.1 Article 9 of the UCC specifically governs transfers of property
(security interests) to secure loans, but also applies to outright sales of certain personal property.
Florida’s UCC substantially reflects the model UCC. The Legislature has periodically amended
Florida’s UCC in accordance with updates made to the model UCC.
SB 336 amends sections 679.4061 and 679.4081, F.S., to reflect updates recently made to Article
9 of the model UCC. These amendments simplify the interaction of a general partnership’s, a
limited partnership’s, or a limited liability company’s ownership interest with that of a creditor
who seeks to enforce its secured interest in the entity.
The Florida Business Law Section recommends these changes to clarify applicable law and
reduce the potential for litigation over these issues.2
II. Present Situation:
UCC and Article 9
Florida’s UCC, codified in chs. 671-680, F.S., is based on the model UCC that was drafted, and
is periodically updated, by a joint committee of the American Law Institute and the Uniform
1
47 Fla. Jur 2d Secured Transactions s. 1 (Sept. 2021), Uniform Commercial Code, generally; Article 9. See also, s. 671.102,
F.S.
2
Florida Business Law Section, Proposed Amendments to Fla. Stat. §§679.4061 and 679.4081 Executive Summary, p. 2,
available at http://www.flabizlaw.org/files/Summary%20and%20Materials%20-%20UCC%209-406%20and%209-
408%20Amendments%20%28v2%29.pdf (last visited Nov. 1, 2021).
BILL: SB 336 Page 2
Law Commission.3 The UCC governs specific contracts and commercial transactions that are
based on the effect of a contract.
Article 9 of the UCC specifically governs transactions that create a security interest.4 For
example, a transaction that creates a debt in exchange for an interest in a debtor’s personal
property is subject to Article 9. If the debtor in such a transaction defaults, the creditor may
repossess and sell the property (collateral) to satisfy the debt. The creditor’s interest, if recorded
(perfected) in accordance with the protocols required by Article 9, is called a “security interest.”
Article 9 is codified in Florida law mainly in ch. 679, F.S., “Uniform Commercial Code—
Secured Transactions.”
Article 9: Anti-Assignment Override Provisions
Sections 679.4061 and 679.4081, F.S., mirror the former anti-assignment override provisions of
Article 9,5 which voided legal or contractual provisions that restricted the transfer of ownership
interests, including the grant or enforcement of security interests. The anti-assignment override
provisions were drafted to ensure the transferability of property interests and other security
interests subject to Article 9.
Section 679.4061, F.S., applies to restrictions created by agreement that require an account
debtor’s6 consent to transfer a security interest in a payment intangible (but not the outright sale
of a payment intangible), an account, a chattel paper, and a promissory note. Section
679.1021(1)(iii), F.S., defines a payment intangible as “a general intangible under which the
account debtor’s principal obligation is a monetary obligation.” For purposes of this
legislation—a payment intangible is the economic interest portion of a member or partner’s
ownership interest in a general partnership, limited partnership, or a limited liability company
(LLC). Stated simply—it is the monetary interest in the business entity.7 An important
distinction in this section is that the restriction must be found in an agreement with an entity,
such as the limited liability company or general partnership (the account debtor)—not an
individual person, such as the co-owner.
Section 679.4081, F.S., prohibits restrictions on the transfer of general intangibles. It further
invalidates laws or rules that restrict such transfers. Section 679.1021(1)(pp), F.S., defines a
general intangible as “any personal property, including…payment intangibles.” Therefore, s.
679.4081, F.S., prohibits specific restrictions on the following transactions:
The outright sale of a payment intangible;
3
The American Law Institute, Uniform Commercial Code UCC, https://www.ali.org/publications/show/uniform-commercial-
code/ (last visited Nov. 1, 2021). Forty-nine states have adopted language based on the model UCC; Louisiana has adopted
most of the model UCC, but deviates to maintain certain provisions of its civil code.
4
47 Fla. Jur 2d Secured Transactions s. 21 Transactions or Interests Subject to Article 9, Generally (2021).
5
Sections 9-406 and 9-408 of the U.C.C.
6
Section 679.1021(1)(c), F.S., defines an “account debtor” as a person who is obligated on an account, chattel paper, or
general intangible. For purposes of this analysis, an account debtor is usually the business entity itself, rather than a member
of the LLC, or a partner in a general partnership.
7
Carl Bjerre, Daniel Kleinberger, Edwin Smith, and Steven Weise, LLC and Partnership Transfer Restrictions Excluded
From UCC Article 9 Overrides (Feb. 7, 2019), https://businesslawtoday.org/2019/02/llc-partnership-transfer-restrictions-
excluded-ucc-article-9-overrides/ (last visited Nov. 1, 2021).
BILL: SB 336 Page 3
The outright sale of ordinary security interests in general intangibles that are not payment
intangibles (i.e., most complete ownership interests, as well as an interest in the member’s
governance interest alone); and
The outright sale of economic rights.
Again, however, s. 679.4081, F.S., applies only in transactions where the restriction comes from
the account debtor—or business entity—not a co-owner or fellow partner.
In 2018, the National Conference of Commissioners on Uniform State Laws and the American
Law Institute revised Article 9 to provide that the anti-assignment override provisions “do not
apply to a security interest in an ownership interest in a general partnership, limited partnership,
or limited liability company.” These amendments clarified potential conflicts between Article 9
and the pick your partner principle within partnership and LLC law.8 As of 2019, 12 states,
including Delaware, Texas, North Carolina, and Virginia had at least partially adopted language
similar in effect to the ALI’s 2018 Article 9 revisions.9
Business Organizations and the Pick Your Partner Principle
The pick your partner principle allows a co-owner of a privately held business to determine who
else may serve as a co-owner, usually by requiring express permission or a related action from a
co-owner or the business entity to transfer his or her ownership interest to another party.10 A
partner or member’s ownership interest in the business organization consists of governance
rights and economic rights.11 Most LLC or partnership interests are classified as a general
intangible under ch. 679, F.S. However, the economic interest portion of a member’s ownership
interest is classified as a payment intangible.12
In conflict with ss. 679.4061 and 679.4081, F.S., Florida LLC law states that a member cannot
transfer their full ownership interest in the LLC, but may transfer their economic interest.
Additionally, s. 605.0502 F.S., permits co-owners of an LLC or partnership to contractually add
additional restrictions to the transfer of an ownership interest, including a restriction on the
transfer of any of the ownership interest. These limitations reduce the economic value of a
member’s interest and help to ensure that the LLC or partnership continues to exist in its original
form—a closely held business operated with a known individual or group.13
8
Florida Business Law Section, Proposed Amendments to Fla. Stat. §§679.4061 and 679.4081 Executive Summary, p. 2,
available at http://www.flabizlaw.org/files/Summary%20and%20Materials%20-%20UCC%209-406%20and%209-
408%20Amendments%20%28v2%29.pdf (last visited Nov. 1, 2021).
9
Florida Business Law Section and the Uniform Law Commission, State Overrides of UCC Sections 9-406 and 9-408 (Dec.
11, 2019), available at http://www.flabizlaw.org/files/Summary%20and%20Materials%20-%20UCC%209-
406%20and%209-408%20Amendments%20%28v2%29.pdf (last visited Nov. 1, 2021).
10
Bjerre, et al., supra note 7.
11
Bjerre, et al., supra note 7, at 2.
12
Florida Business Law Section, supra note 8. at 1.
13
See Hank Jackson, Anatomy of a Business Divorce: Florida LLCs, Fla. Bar Journal, Vol. 95, No. 3, p. 8 (May/June 2021),
available at https://www.floridabar.org/the-florida-bar-journal/anatomy-of-a-business-divorce-florida-llcs/#u6a6b (last
visited Nov. 1, 2021).
BILL: SB 336 Page 4
The Florida Business Law Section illustrates the conflict as follows:
Two individuals go into business together and form an LLC. Each owner is
a 50/50 member in the LLC. Their operating agreement (like most operating
agreements) restricts the ability of one member to convey or encumber their
membership interest without the consent of the other member, in keeping
with the “pick your partner” principle engrained in LLC and partnership
law. If one partner unilaterally encumbered their 50% membership interest
to secure a personal loan from a bank (in violation of the operating
agreement), then arguably, Section 9-406 and 9-408 would “override” the
restriction in the operation agreement. If the member defaulted on the loan,
the lender could foreclose on its security interest in the LLC membership
interest and take ownership of the membership interest. The other member
would now be saddled with a bank as its new business partner, a result not
contemplated or permitted by the members’ contract (the operating
agreement).
Some firms attempt to transact their way out of the anti-assignment override provision by
creating their ownership interests in the business entity as an investment security, which is
subject to Article 8 of the model UCC instead of Article 9. However, this requires additional
legal structuring at the outset, and does not shield the interest from litigation over its
classification.14
III. Effect of Proposed Changes:
Sections 1 and 2 of the bill exclude ownership interests in a general partnership, a limited
partnership, or an LLC from the “anti-assignment override” provisions found in ss. 679.4061 and
679.4081, F.S., respectively. Therefore, the bill gives priority to a statute or agreement that
restricts the transfer of a general intangible (ownership interest) and a security interest in a
payment intangible (the monetary interest portion of an ownership interest) within the context of
a general partnership, limited partnership, or LLC.
SB 336 will conform Florida’s version of the UCC to reflect updates made to Article 9 of the
model UCC by the National Conference of Commissioners on Uniform State Laws and the
American Law Institute to void the “anti-assignment override” provisions in the context of a
general partnership, a limited partnership, or a limited liability company.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
14
Bjerre, et al., supra note 7, at 6.
BILL: SB 336 Page 5
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
This clarification may reduce transaction costs incurred when establishing specific
business entities by removing the need to “opt-in” to Article 8 by defining the underlying
ownership interests as a security, which is not subject to ch. 679, F.S. Additionally, this
clarification may reduce litigation costs related to disputes of the character of an
ownership interest in a general partnership, limited partnership, or limited liability
company.15
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 679.4061 and
679.4081.
15
Florida Business Law Section, Proposed Amendments to Fla. Stat. §§679.4061 and 679.4081 Executive Summary, p. 2,
available at http://www.flabizlaw.org/files/Summary%20and%20Materials%20-%20UCC%209-406%20and%209-
408%20Amendments%20%28v2%29.pdf (last visited Nov. 1, 2021).
BILL: SB 336 Page 6
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2022 SB 336 Florida Senate - 2022 SB 336
By Senator Berman
31-00115-22 2022336__ 31-00115-22 2022336__
1 A bill to be entitled 30 (a) Prohibits, restricts, or requires the consent of the
2 An act relating to the Uniform Commercial Code; 31 account debtor or person obligated on the promissory note to the
3 amending ss. 679.4061 and 679.4081, F.S.; providing 32 assignment or transfer of, or the creation, attachment,
4 that certain restrictions on the effectiveness of 33 perfection, or enforcement of a security interest in, the
5 terms in specified agreements and the effectiveness of 34 account, chattel paper, payment intangible, or promissory note;
6 certain rules of law, statutes, or regulations related 35 or
7 to the discharge of account debtors and certain 36 (b) Provides that the assignment or transfer or the
8 restrictions on the assignment of promissory notes, 37 creation, attachment, perfection, or enforcement of the security
9 health-care-insurance receivables, and certain general 38 interest may give rise to a default, breach, right of
10 intangibles, respectively, do not apply to a security 39 recoupment, claim, defense, termination, right of termination,
11 interest in an ownership interest in a general 40 or remedy under the account, chattel paper, payment intangible,
12 partnership, a limited partnership, or a limited 41 or promissory note.
13 liability company; conforming provisions to changes 42 (6) Except as otherwise provided in subsection (12) and ss.
14 made by the act; providing an effective date. 43 680.303 and 679.4071, and subject to subsections (8) and (9), a
15 44 rule of law, statute, or regulation that prohibits, restricts,
16 Be It Enacted by the Legislature of the State of Florida: 45 or requires the consent of a government, governmental body or
17 46 official, or account debtor to the assignment or transfer of, or
18 Section 1. Subsections (4) and (6) of section 679.4061, 47 creation of a security interest in, an account or chattel paper
19 Florida Statutes, are amended, and subsection (12) is added to 48 is ineffective to the extent that the rule of law, statute, or
20 that section, to read: 49 regulation:
21 679.4061 Discharge of account debtor; notification of 50 (a) Prohibits, restricts, or requires the consent of the
22 assignment; identification and proof of assignment; restrictions 51 government, governmental body or official, or account debtor to
23 on assignment of accounts, chattel paper, payment intangibles, 52 the assignment or transfer of, or the creation, attachment,
24 and promissory notes ineffective.— 53 perfection, or enforcement of a security interest in the account
25 (4) Except as otherwise provided in subsections (5) and 54 or chattel paper; or
26 (12) subsection (5) and ss. 680.303 and 679.4071, and subject to 55 (b) Provides that the assignment or transfer or the
27 subsection (8), a term in an agreement between an account debtor 56 creation, attachment, perfection, or enforcement of the security
28 and an assignor or in a promissory note is ineffective to the 57 interest may give rise to a default, breach, right of
29 extent that it: 58 recoupment, claim, defense, termination, right of termination,
Page 1 of 4 Page 2 of 4
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2022 SB 336 Florida Senate - 2022 SB 336
31-00115-22 2022336__ 31-00115-22 2022336__
59 or remedy under the account or chattel paper. 88 intangible.
60 (12) Subsections (4), (6), and (11) do not apply to a 89 (3) Except as otherwise provided in subsection (8), a rule
61 security interest in an ownership interest in a general 90 of law, statute, or regulation that prohibits, restricts, or
62 partnership, a limited partnership, or a limited liability 91 requires the consent of a government, governmental body or
63 company. 92 official, person obligated on a promissory note, or account
64 Section 2. Subsections (1) and (3) of section 679.4081, 93 debtor to the assignment or transfer of, or creation of a
65 Florida Statutes, are amended, and subsection (8) is added to 94 security interest in, a promissory note, health-care-insurance
66 that section, to read: 95 receivable, or general intangible, including a contract, permit,
67 679.4081 Restrictions on assignment of promissory notes, 96 license, or franchise between an account debtor and a debtor, is
68 health-care-insurance receivables, and certain general 97 ineffective to the extent that the rule of law, statute, or
69 intangibles ineffective.— 98 regulation:
70 (1) Except as otherwise provided in subsections (2) and (8) 99 (a) Would impair the creation, attachment, or perfection of
71 subsection (2), a term in a promissory note or in an agreement 100 a security interest; or
72 between an account debtor and a debtor which relates to a 101 (b) Provides that the assignment or transfer or the
73 health-care-insurance receivable or a general intangible, 102 creation, attachment, or perfection of the security interest may
74 including a contract, permit, license, or franchise, and which 103 give rise to a default, breach, right of recoupment, claim,
75 term prohibits, restricts, or requires the consent of the person 104 defense, termination, right of termination, or remedy under the
76 obligated on the promissory note or the account debtor to, the 105 promissory note, health-care-insurance receivable, or general
77 assignment or transfer of, or creation, attachment, or 106 intangible.
78 perfection of a security interest in, the promissory note, 107 (8) This section does not apply to a security interest in
79 health-care-insurance receivable, or general intangible, is 108 an ownership interest in a general partnership, a limited
80 ineffective to the extent that the term: 109 partnership, or a limited liability company.
81 (a) Would impair the creation, attachment, or perfection of 110 Section 3. This act shall take effect July 1, 2022.
82 a security interest; or
83 (b) Provides that the assignment or transfer or the
84 creation, attachment, or perfection of the security interest may
85 give rise to a default, breach, right of recoupment, claim,
86 defense, termination, right of termination, or remedy under the
87 promissory note, health-care-insurance receivable, or general
Page 3 of 4 Page 4 of 4
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: CS/SM 174
INTRODUCER: Commerce and Tourism Committee and Senator Pizzo
SUBJECT: Trade
DATE: November 2, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Vigrass McKay CM Fav/CS
2. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SM 174 urges Congress to renew Trade Promotion Authority (TPA) to the executive branch.
The memorial also encourages the executive branch to negotiate a comprehensive and mutually
beneficial free trade agreement between the United States and the United Kingdom, and
encourages Congress to ratify such an agreement.
Legislative memorials are not subject to the Governor’s veto power and are not presented to the
Governor for review. Memorials have no force of law, as they are mechanisms for formally
petitioning the federal government to act on a particular subject.
II. Present Situation:
Trade Promotion Authority
Although the President has the authority to negotiate treaties with foreign countries, Congress
has the sole authority to regulate international trade.1 “The President shall have Power, by and
with the Advice and Consent of the Senate to make Treaties, provided two thirds of the Senators
present concur.” 2
Since 1974, Congress has enacted TPA legislation that defines U.S. negotiating objectives and
priorities for trade agreements and establishes consultation and notification requirements for the
1
U.S. CONST. art. 1, s.8
2
U.S. CONST. art. 2, s.2
BILL: CS/SM 174 Page 2
President to follow throughout the negotiation process.3 TPA does not provide new power to the
executive branch, but rather, TPA is a legislative procedure through which Congress defines U.S.
negotiating objectives and details the oversight process used during trade negotiations.4
TPA is only extended for limited periods, so Congress periodically reconsiders legislation to
extend it and to outline future negotiation objectives.5 The most recent TPA expired on July 1,
2021. This precludes the opportunity to fast track trade agreements between the United States
and other countries.6
Free Trade Agreements
A Free Trade Agreement is an agreement between two or more countries where the parties
involved agree on certain trade obligations for the purpose of reducing barriers and providing a
more stable and transparent trading environment. It also allows an easier process for U.S.
companies to export products or services to partner markets.7 All U.S. Free Trade Agreements
(FTAs), except the agreement with Jordan, were considered in Congress under TPA.8
The U.S. currently has FTAs with 20 countries. The current U.S. FTA partner countries include:
Australia; Bahrain; Canada; Chile; Colombia; Costa Rica; Dominican Republic; El Salvador;
Guatemala; Honduras; Israel; Jordan; Korea; Mexico; Morocco; Nicaragua; Oman; Panama;
Peru; and Singapore.9 In 2020, the U.S., Mexico, and Canada renegotiated the North American
Free Trade Agreement and entered into force the United States-Mexico-Canada Agreement on
July 1, 2020.10
US and UK Trade Negotiations
In July of 2017, the U.S. – UK Trade and Investment Working Group was established to provide
commercial progress for the UK and U.S. businesses, workers, and consumers to prepare for the
UK’s withdrawal from the European Union. On May 5, 2020, the U.S. and UK announced the
formal launch of trade agreement negotiations.11
3
Office of the United States Trade Representative, Trade Promotion Authority, available at https://ustr.gov/trade-
topics/trade-promotion-authority (last visited Oct. 15, 2021).
4
Id.
5
Id.
6
Congressional Research Service, Brexit and Outlook for US-UK Free Trade Agreement (Jan. 14, 2021), available at
https://fas.org/sgp/crs/row/IF11123.pdf (last visited Oct. 15, 2021).
7
International Trade Administration, U.S. Free Trade Agreements, available at https://2016.export.gov/FTA/index.asp (last
visited Oct. 15, 2021).
8
Congressional Research Service, Major Votes on Free Trade Agreements and Trade Promotion Authority (July 22, 2020),
available at https://fas.org/sgp/crs/row/R45846.pdf (last visited Oct. 15, 2021).
9
Office of the United States Trade Representative, Free Trade Agreements, available at https://ustr.gov/trade-
agreements/free-trade-agreements (last visited Oct. 15, 2021).
10
Office of the United States Trade Representative, United States-Mexico-Canada Agreement, available at
https://ustr.gov/trade-agreements/free-trade-agreements/united-states-mexico-canada-agreement (last visited Oct. 15, 2021).
11
Office of the United States Trade Representative, U.S.-UK Trade Agreement Negotiations, available at
https://ustr.gov/countries-regions/europe-middle-east/europe/united-kingdom/us-uk-trade-agreement-negotiations (last visited
Oct. 15, 2021).
BILL: CS/SM 174 Page 3
With total trade at over $250 billion a year, the U.S. and the UK are each other’s largest source
of foreign direct investment with about $1 trillion invested in each other’s economies.12 More
than 1.25 million U.S. workers are employed by British companies in the U.S., and over 1.5
million Britons are employed by U.S. affiliates. Additionally, the UK is the United States’ 7th
largest trading partner and the 5th largest export destination for U.S. goods and services.13
Current Trade Agreements
As part of the U.S. – UK Trade and Investment Working Group, the U.S. and the UK have
signed agreements on specific products that were covered by existing agreements the U.S.
maintains with the EU.14 These agreements between the U.S. and UK were entered into force on
December 31, 2020, to ensure that there was no disruption in trade for specific products between
the U.S. and UK. These new agreements include U.S. – UK Agreement on Trade in Wine; U.S. –
UK Agreement on Mutual Recognition of Certain Distilled Spirits/Spirits Drinks; Agreement on
Mutual Recognition; and Agreement on the Mutual Recognition of Certificates of Conformity
for Marine Equipment.15
As of January 1, 2021, EU Trade Agreements no longer apply to the UK. The UK has sought to
replicate the effects of previous trade agreements to ensure continuity for UK business.16 In
2018, the Trump Administration notified Congress, under TPA, of its intent to enter
comprehensive FTA negotiations with the UK. The U.S. and UK conducted five rounds of
negotiations in 2020, with negotiations pending over outstanding issues.17 The most recent TPA,
which was established under the Obama administration, expired on July 1, 2021.18
III. Effect of Proposed Changes:
CS/SM 174 urges Congress to renew TPA to the executive branch. The memorial also
encourages the executive branch to negotiate a comprehensive and mutually beneficial free trade
agreement between the U.S. and UK, and encourages Congress to ratify such an agreement.
Copies of this memorial will be dispatched to the President of the United States, the President of
the United States Senate, the Speaker of the United States House of Representatives, and each
member of the Florida delegation to the United States Congress.
12
U.S. Department of State, U.S. Relations with the United Kingdom. (Feb. 6, 2020), available at https://www.state.gov/u-s-
relations-with-united-kingdom/ (last visited Oct. 15, 2021).
13
U.S. Chamber of Commerce, U.S.-UK Trade and Investment Ties, available at
https://www.uschamber.com/international/europe/us-uk-business-council/us-uk-trade-and-investment-ties (last visited Oct.
15, 2021).
14
These existing agreements have covered trade with the UK by virtue of the UK’s membership in the EU. See Office of the
United States Trade Representative, U.S.-UK Trade Agreement Negotiations, available at https://ustr.gov/countries-
regions/europe-middle-east/europe/united-kingdom/us-uk-trade-agreement-negotiations (last visited Oct. 15, 2021).
15
Id.
16
Gov.UK, UK trade agreements with non-EU countries, available at https://www.gov.uk/guidance/uk-trade-agreements-
with-non-eu-countries (last visited Oct. 15, 2021).
17
Congressional Research Service, Brexit and Outlook for US-UK Free Trade Agreement (Jan. 14, 2021), available at
https://fas.org/sgp/crs/row/IF11123.pdf (last visited Oct. 15, 2021).
18
Id.
BILL: CS/SM 174 Page 4
Legislative memorials are not subject to the Governor’s veto power and are not presented to the
Governor for review. Memorials have no force of law, as they are mechanisms for formally
petitioning the federal government to act on a particular subject.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
BILL: CS/SM 174 Page 5
VIII. Statutes Affected:
None.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Commerce and Tourism on November 2, 2021:
This amendment corrects the Memorial to reflect current trade conditions. The
amendment urges Congress to renew Trade Promotion Authority for the Executive
branch.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2022 COMMITTEE AMENDMENT
Bill No. SM 174
Ì418592@Î418592
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
11/03/2021 .
.
.
.
The Committee on Commerce and Tourism (Pizzo) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete lines 43 - 44
4 and insert:
5 That the Congress of the United States is urged to
6 expeditiously renew trade promotion authority for the executive
7 branch, the
8
9 ================= T I T L E A M E N D M E N T ================
10 And the title is amended as follows:
Page 1 of 2
10/14/2021 4:16:30 PM 577-00801-22
Florida Senate - 2022 COMMITTEE AMENDMENT
Bill No. SM 174
Ì418592@Î418592
11 Delete lines 3 - 4
12 and insert:
13 the President of the United States urging Congress to
14 expeditiously renew trade promotion authority for the
Page 2 of 2
10/14/2021 4:16:30 PM 577-00801-22
Florida Senate - 2022 SM 174 Florida Senate - 2022 SM 174
By Senator Pizzo
38-00171-22 2022174__ 38-00171-22 2022174__
1 Senate Memorial 30 WHEREAS, the successful implementation of a free trade
2 A memorial to the Congress of the United States and 31 agreement will increase exports to the United Kingdom from this
3 the President of the United States commending Congress 32 state, and
4 for granting trade promotion authority to the 33 WHEREAS, the United States Constitution grants the United
5 executive branch, urging the executive branch to 34 States Congress exclusive authority to regulate commerce with
6 negotiate a comprehensive and mutually beneficial free 35 foreign nations, and
7 trade agreement between the United States and the 36 WHEREAS, the negotiation of a successful free trade
8 United Kingdom, and urging Congress to ratify such 37 agreement between the United States and the United Kingdom will
9 agreement. 38 require bipartisan cooperation between state, federal, and
10 39 foreign governments, NOW, THEREFORE,
11 WHEREAS, the United States is the United Kingdom’s largest 40
12 single-country trade partner, with a relationship valued at more 41 Be It Resolved by the Legislature of the State of Florida:
13 than $200 billion; the two countries are each other’s largest 42
14 foreign direct investors, having approximately $1 trillion 43 That the Congress of the United States is commended for
15 invested in their counterpart’s economy; and the UK-US Trade and 44 granting trade promotion authority to the executive branch, the
16 Investment Working Group has been laying the groundwork to 45 executive branch is urged to complete a timely and successful
17 strengthen trade and investment ties between the two countries, 46 negotiation of a comprehensive and mutually beneficial free
18 including through the use of a free trade agreement, and 47 trade agreement between the United States and the United
19 WHEREAS, the expansion of global trade, especially with the 48 Kingdom, and the Congress of the United States is urged to
20 United Kingdom, is of vital importance to the growth of the 49 ratify such agreement.
21 United States’ economy, small business participation in the 50 BE IT FURTHER RESOLVED that the Secretary of State dispatch
22 international marketplace, and job creation, and 51 copies of this memorial to the President of the United States,
23 WHEREAS, this state would benefit greatly from the 52 the President of the United States Senate, the Speaker of the
24 ratification of a comprehensive free trade agreement, which, 53 United States House of Representatives, and each member of the
25 since the United Kingdom is currently the largest foreign direct 54 Florida delegation to the United States Congress.
26 employer in this state and is the second largest market for
27 tourism, would create employment opportunities for residents of
28 this state as a direct result of reducing and removing barriers
29 to trade and free markets, and
Page 1 of 2 Page 2 of 2
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
The Florida Senate
11/2/2021
Meeting Date
APPEARANCE RECORD 288
Deliver both cop es of this form to Bil1 Number or Topic
Commerce and Tourism Senate professional staff conducting the meeting
Committee
Amendment Barcode (if applicable)
Name Ed9ar CSStrO Phone (305) 421-6304
Address 9155 S. Dadeland Blvd. Suite 1604 Emaji castro@thesoutherngroup.com
Street ~ ~ ~
Miami FL 33156
'ty State Zip
For |D Against |D Information OR Waive Speaking: [0 In Support Against
PLEASE CHECK ONE OF THE FOLLOWING:
| || I am appearing without 0! I am a reg stered lobbyist,
compensation or sponsorship.
|| | I am not a lobbyist, but received
representing:
something of value for my appearance
(travel, meals, lodging, etc.),
Recording Industry Association of sponsored by:
America
satmdit!ontoe oUrage public testimor y imie may not permit all persons wishing to speo o be heard at this hearing. Those who do speak may be
that s m ny persons as possible c n be heard. If you have questions bout regist ring to lobby ple se see Fla. St t. §11.045 nd Joint Rule 1.202 022j ntRules.pdf (flsenatemovl
This for is part of the public record for this meeting.
S-001 (08/10/2021)
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: SB 288
INTRODUCER: Senator Garcia
SUBJECT: Electronic Dissemination of Commercial Recordings and Audiovisual Works
DATE: November 1, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Harmsen McKay CM Favorable
2. JU
3. RC
I. Summary:
SB 288 subjects websites that electronically transmit, make available, or offer a commercial
recording or audiovisual work for distribution, display or performance to the Florida True Origin
of Digital Goods Act. These websites will therefore be required to post their operator’s or
owner’s contact information and will be subject to injunction for failure to do so.
The bill takes effect on July 1, 2022.
II. Present Situation:
Florida True Origin of Digital Goods Act
The True Origin of Digital Goods Act (Act)1 requires the owners or operators of websites that
electronically disseminate commercial recordings or audiovisual works to Florida consumers to
clearly post their true and correct name(s), physical address, and telephone number or e-mail
address on their website.
A website electronically disseminates a commercial recording or audiovisual work by initiating
the transmission of, making available, or otherwise offering it for distribution through the
internet or another digital network. Any website that electronically disseminates such works
must therefore post the above specific contact information.
An owner, assignee, authorized agent, or licensee of a commercial recording or audiovisual work
that appears on a website that lacks its owner’s or operator’s contact information may bring a
private cause of action to obtain a declaratory judgment that the owner or operator’s failure
violates the Act. The owner, assignee, authorized agent, or licensee of the copyrighted work may
1
Section 501.155, F.S.
BILL: SB 288 Page 2
also request an injunction to compel the website to comply with the Act. Prior to bringing a civil
action, however, the aggrieved party must first make reasonable efforts to place the website’s
owner or operator on notice that they are violating the Act and that his or her failure to cure the
violation within 14 days may result in the filing of a civil action.
Federal Copyright Law
The owner of original, copyrighted material has the exclusive rights to do and authorize any of
the following:
Reproduce the copyrighted work;
Prepare derivative works based on the copyrighted work;
Distribute copies of the copyrighted work to the public by sale, rental, lease, or lending;
Publicly perform (or control the public performance of) the copyrighted work if it is a
literary, musical, dramatic, choreographic, pantomime, motion picture, or other audiovisual
copyrighted work;
Publicly display (or control the public display of) the copyrighted work, if it is a literary,
musical, dramatic, choreographic, pantomime, pictorial, graphic, or sculptural work—
including individual images of a motion picture or audiovisual work; and
Publicly perform sound recordings by means of a digital audio transmission.2
A display or performance is publicly available when it is (1) open or transmitted to the public or
to any place where a substantial number of persons outside of a family and its friends are
gathered, or (2) transmitted or communicated to the public through a device or process—whether
or not the viewers view it in the same place or time.3
To display a work means to show a copy of it, either directly or by means of a film, slide,
television image, or any other device or process. To perform a work means to recite, render,
play, dance, or act it, either directly or by means of any device or process.4 Generally, the only
distinction between a performance and a display of copyrighted material on the internet is that a
performance occurs in a sequential, ongoing manner, while a display is static.5
Technological advances, such as faster internet connection and more powerful computer
processors, have resulted the proliferation of streaming services, which in turn have made the
public performance and display of copyrighted works over the internet more prevalent.6
Streaming copyrighted material over the internet has clearly been interpreted to constitute a
2
17 U.S.C. §§ 106-122, Copyrights. See also, U.S. Copyright Office, Circular 1: Copyright Basics, pp. 1-2 (Sept. 2021),
https://www.copyright.gov/circs/circ01.pdf (last visited Nov. 1, 2021).
3
17 U.S.C. § 101. See also, John Kennedy, Mary Rasenberger, Lorrane Ford and Joseph Fazio, Internet Law and Practice-
Intellectual Property Issues: Copyright: Public Performance and Display, §12:13 (Nov. 2021).
4
17 U.S.C. § 101. See also, Information Law- Digital Copyright and Cyberspace- Network and Internet Issues, Public
Display and Performance, ch. 4 § 4:82 (May 2021).
5
Id.
6
U.S. Department of Commerce Internet Policy Task Force, White Paper on Remixes, First Sale, and Statutory Damages:
Copyright Policy, Creativity, and Innovation in the Digital Economy, pp. 40-43 (Jan. 2016),
https://www.uspto.gov/sites/default/files/documents/copyrightwhitepaper.pdf (last visited Nov. 1, 2021). See also,
Congressional Research Service, Illegal Internet Streaming of Copyrighted Content: Legislation in the 112 th Congress (Aug.
29, 2011), https://www.everycrsreport.com/reports/R41975.html#fn19 (last visited Nov. 1, 2021).
BILL: SB 288 Page 3
public performance by courts throughout the U.S., but if done with proper authorization to
distribute or perform the material from the copyright holder, is permissible under copyright law.7
Federal Digital Millennium Copyright Act
The Digital Millennium Copyright Act (DMCA) updated federal copyright law to address the
relationship between copyrighted material and the internet. To provide certainty regarding
liability for copyright infringement while balancing the rights of copyright holders, the DMCA
created the notice-and-takedown system.8 This system requires online service providers to
expeditiously remove infringing content after receipt of notice from a copyright holder.9 As the
internet, related consumer activity, and specifically third party posting of copyrighted content
continues to grow, so have takedown notices.10 For example, Google received take down notices
for approximately three million URLs in 2013, as of October 21, 2021, it received notices
identifying 5.3 billion URLs to be taken down.11
The DMCA also requires online service providers to designate an agent to receive copyright
owners’ notices, and provide the agent’s contact information on their websites.
Protecting Lawful Streaming Act
The Consolidated Appropriations Act of 2021 created the Protecting Lawful Streaming Act
(PLSA),12 which increases the federal penalty for illegal streaming from a misdemeanor to a
felony. The act of offering copyrighted material for download without specific license or
authorization is separately classified a felony under the No Electronic Theft (NET) Act, but this
provision did not cover streaming copyrighted material.13
Specifically, the PLSA targets individuals who act (1) willfully, (2) for purposes of commercial
advantage or private financial gain, and (3) offer or provide to the public a digital transmission
service. Additionally, their digital transmission service must:14
7
See, e.g., Warner Bros. Entertainment Inc. v. WTV Systems, Inc., 824 F. Supp.2d 1003, 1010-1011 (C.D. Cal. 2011). A&M
Records, Inc. v. Napster, Inc., 114 F. Supp.2d 896 (N.D. Cal. 2000), aff’d in relevant part, 239 F.3d 1004 (9th Cir. 2001).
8
17 U.S.C. § 512 (2)(b)-(d). U.S. Copyright Office, The Digital Millennium Copyright Act: Section 1202- Copyright
Management Information Protection, https://www.copyright.gov/dmca/ (last visited Nov. 1, 2021). See also, U.S. Copyright
Office, Section 512 Report, pp. 1, 8 (May 2020), available at https://www.copyright.gov/policy/section512/section-512-full-
report.pdf (last visited Nov. 1, 2021).
9
U.S. Copyright Office, Section 512 of Title 17: Resources on Online Service Provider Safe Harbors and Notice-and-
Takedown System (May 21, 2020), https://www.copyright.gov/512/ (last visited Nov. 1, 2021). See also, 17 U.S.C. §§512(b)-
(d)
10
See also, U.S. Copyright Office, Section 512 Report, pp. 10 (May 2020), available at
https://www.copyright.gov/policy/section512/section-512-full-report.pdf (last visited Nov. 1, 2021).
11
Id. at 31-32, citing Google, How Google Fights Piracy (2018),
https://www.blog.google/documents/25/GO806_Google_FightsPiracy_eReader_final.pdf (last visited Nov. 1, 2021). See
also, Google Transparency Report, available at https://transparencyreport.google.com/copyright/overview (last visited Nov.
1, 2021).
12
18 U.S.C. 2319C, “Illicit Digital Transmission Services.”
13
17 U.S.C. 506. See also, Michael Antonucci, New Legislation: CASE Act and Protecting Lawful Streaming Act (Mar. 18,
2021), https://www.mondaq.com/unitedstates/trademark/1047506/new-legislation-case-act-and-protecting-lawful-streaming-
act (last visited Nov. 1, 2021).
14
See generally, Kevin Madigan, Copyright Alliance, Protecting Lawful Streaming Act Signed Into Law: What you Need to
Know (Jan. 12, 2021), https://copyrightalliance.org/protecting-lawful-streaming-act-signed/ (last visited Nov. 1, 2021).
BILL: SB 288 Page 4
Be primarily designed or provided for the purpose of publicly performing copyright-
protected works by digital transmission without the copyright owner’s authority;
Have no commercially-significant purpose or use other than to publicly perform copyright-
protected work by an unauthorized digital transmission; or
Be intentionally marketed by or at the direction of a person to promote its use in publicly
performing copyright-protected works by means of an unauthorized digital transmission.
III. Effect of Proposed Changes:
Section 1 amends s. 501.155, F.S., to expand the definition of “electronic dissemination” to
include transmitting, making available, or otherwise offering a commercial recording or
audiovisual work for distribution, display, or performance. As a result, any website that
electronically transmits, makes available, or offers a display or performance must post the
website operator’s or owner’s contact information and is subject to injunction and other
judgments under the Florida True Origin of Digital Goods Act.
The terms “display” and “performance” are not defined by Florida law.
Section 2 provides that the bill takes effect on July 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
For a court to exercise jurisdiction over a respondent, it must have subject matter
jurisdiction and personal jurisdiction. State courts have general jurisdiction, and therefore
a claim made under a state statute meets the subject matter jurisdiction requirement.15
Personal jurisdiction is a constitutional requirement that a respondent have minimum
contacts with the state in which the court sits so that the court may exercise power over
the respondent.16 A non-resident respondent may have sufficient contacts with Florida if
15
Caiazzo v. American Royal Arts Corp., 73 So. 3d 245, 250 (Fla. 4th DCA 2011).
16
Id.
BILL: SB 288 Page 5
he or she commits acts expressly enumerated in Florida’s long-arm statute.17 Alternately,
the non-resident respondent may be subject to a Florida court’s personal jurisdiction
because he or she has minimum contacts with the state that are otherwise unrelated to
matter that brings him or her into court.18 Examples of sufficient minimum contacts
include frequent business travel to the state, owning a company with a Florida office
branch, or subjecting oneself to the court’s jurisdiction by presenting oneself in the
Florida court.19 These jurisdictional requirements ensure that a respondent has sufficient
notice and due process afforded to him or her under the U.S. Constitution before his or
her rights are subjected to the court.20
Whether a non-resident internet company that electronically disseminates commercial
recordings or audiovisual works into Florida has sufficient minimum contacts with the
state is a fact-specific question that would likely need to be addressed on a case-by-case
basis by a court.21
Content-neutral regulations are legitimate if they advance important governmental
interests that are not related to suppression of free speech, and do not substantially burden
more speech than necessary to further those interests.22 However, a law may be
determined to be overbroad if a “substantial number of its applications are
unconstitutional, judged in relation to the statute’s plainly legitimate sweep.”23
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
Parties involved in the litigation provided for under the Act will incur costs related to
bringing or defending the action.
C. Government Sector Impact:
Florida courts may see an increase in case filings under this law.
VI. Technical Deficiencies:
None.
17
Id.; § 48.193, F.S.
18
Caiazzo v. American Royal Arts Corp., 73 So. 3d 245, 250 (Fla. 4th DCA 2011).
19
Id.
20
Id. at 250-251.
21
See Caiazzo v. American Royal Arts Corp., 73 So. 3d 245, (Fla. 4th DCA 2011); Zippo Mfg. Co. v. Zippo Dot Com, Inc.,
952 F. Supp. 1119, 1124 (W.D. Pa. 1997).
22
Turner Broadcasting System, Inc. v. F.C.C., 520 U.S. 180,189 (U.S. 1997).
23
U.S. v. Stevens, 559 U.S. 460 (2010), quoting, Washington State Grange v. Washington State Republican Party, 552 U.S.
442, 449, n. 6, (2008).
BILL: SB 288 Page 6
VII. Related Issues:
It is unclear whether Florida could assert jurisdiction over foreign websites should an aggrieved
party attempt to enforce the disclosure requirements of this bill against a website owner or
operator located outside of Florida. It can be assumed that website owners or operators located
outside of Florida are not expected to respond to lawsuits or submit willingly to jurisdiction in
Florida courts. As such, any proceedings against owners or operators of websites located outside
of Florida would be expected to end in default judgments.
Following a default or other declaratory judgment, the aggrieved party could proceed with third
party injunctions to discourage Internet service providers, hosting services, payment services, or
other Internet website services from working with websites that fail to disclose their personal
information required by this bill. For example, ISP Terms of Service Agreements frequently
forbid the user website from engaging in illegal activity.
This legislation captures a wide array of behaviors due to the broad definitions of the terms
“commercial recording or audiovisual work,” “electronic dissemination,” “performance,” and
“display” used. As a result, many, if not all, private individuals having a website may be required
to disclose their true and correct name, physical address, and telephone number or e-mail
address. For example, under these definitions, a teenager who creates her own website for the
purpose of posting self-produced recordings or audiovisual works would be required to provide
the identifying information. Moreover, the true target for the injunction and further consequences
apparently are those websites that do not provide the identifying information.
An individual may be able to display or perform a commercial recording or audiovisual work for
distribution to a sufficiently narrow group so that the act does not constitute a “public” display or
performance under federal copyright law. However, this bill does not discern between a public or
private display or performance.
VIII. Statutes Affected:
This bill substantially amends section 501.155 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2022 SB 288
By Senator Garcia
37-00471-22 2022288__
1 A bill to be entitled
2 An act relating to electronic dissemination of
3 commercial recordings and audiovisual works; amending
4 s. 501.155, F.S.; revising the definition of the term
5 “electronic dissemination”; providing an effective
6 date.
7
8 Be It Enacted by the Legislature of the State of Florida:
9
10 Section 1. Paragraph (b) of subsection (3) of section
11 501.155, Florida Statutes, is amended to read:
12 501.155 Electronic dissemination of commercial recordings
13 or audiovisual works; required disclosures; injunctive relief.—
14 (3) DEFINITIONS.—As used in this section, the term:
15 (b) “Electronic dissemination” means initiating a
16 transmission of, making available, or otherwise offering a
17 commercial recording or audiovisual work for distribution,
18 display, or performance through the Internet or other digital
19 network, regardless of whether another person has previously
20 electronically disseminated the same commercial recording or
21 audiovisual work.
22 Section 2. This act shall take effect July 1, 2022.
Page 1 of 1
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11/2/21 The Florida Senate
Meeting Date APPEARANCE record SB 434
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The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: SB 434
INTRODUCER: Senator Hooper
SUBJECT: Florida Tourism Marketing
DATE: November 1, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Renner McKay CM Favorable
2. AP
I. Summary:
SB 434 extends the scheduled repeal date for the Florida Tourism Industry Marketing
Corporation, doing business as VISIT FLORIDA, and the Division of Tourism Marketing within
Enterprise Florida, Inc., until October 1, 2031.
Without the bill, the statutory provisions for these entities will be repealed on October 1, 2023.
The five-year average of appropriations to VISIT FLORIDA is $65.4 million. If VISIT
FLORIDA is repealed on October 1, 2023, the dissolved entity’s assets, after all legal liabilities
and obligations have been paid or adequate provision for them have been made, will revert to the
state.
The bill takes effect upon becoming law.
II. Present Situation:
Enterprise Florida, Inc., and VISIT FLORIDA
Enterprise Florida, Inc., (EFI) is a non-profit corporation created to act as the state’s economic
development organization, using expertise from both the private and public sectors. EFI is not a
unit of state government.1
EFI is statutorily required to maintain at least five divisions related to the following areas:
International trade and business development;
Business retention and recruitment;
Tourism marketing;
1
Sections 288.901(1) and (2), F.S.
BILL: SB 434 Page 2
Minority business development; and
Sports industry development.2
EFI’s Division of Tourism Marketing is the mechanism created in statute through which EFI
interacts and contracts with its direct support organization, VISIT FLORIDA. VISIT FLORIDA
is the fictitious name for the Florida Tourism Industry Marketing Corporation, a non-profit
corporation that serves as Florida’s statewide destination marketing organization and represents
the state’s tourism industry.3 In practice, VISIT FLORIDA is EFI’s tourism marketing division.
The division is staffed by VISIT FLORIDA, but that staff is not employed by EFI.4 VISIT
FLORIDA’s primary responsibilities include:
Administering domestic and international advertising campaigns;
Conducting research on tourism and travel trends;
Coordinating domestic and international marketing activities; and
Managing the state’s four welcome centers.5
VISIT FLORIDA is required to develop a four-year marketing plan for the state that addresses
issues such as continuation of tourism growth in Florida, expansion to new or underrepresented
markets, coordination with local and private sector partners on tourism advertising, and
addressing emergency responses to disasters from a marketing standpoint.6
EFI, in conjunction with the Department of Economic Opportunity (DEO), appoints VISIT
FLORIDA’s 31-member board of directors. The board “provides guidance, input, and insight
into the evolution and development of [VISIT FLORIDA] programs, processes, and messages;
acts as a steering council for various committees; and works directly with [VISIT FLORIDA]
executive staff to guide strategy.”7 VISIT FLORIDA’s board of directors is composed of
16 regional members, with at least two representing each of the six statutorily designated
geographic areas of the state, and 15 additional tourism industry related members, including:
One from the statewide rental car industry;
Seven from tourist-related statewide associations;
Three from county destination marketing organizations;
One from the cruise industry;
One from an automobile and travel services membership organization;
One from the airline industry; and
One from the space tourism industry.8
2
Section 288.92(1), F.S.
3
Section 288.1226, F.S. The fictitious name is registered with the Florida Department of State, registration no.
G18000088414.
4
Section 288.923(5), F.S.
5
Office of Program Policy Analysis and Government Accountability, Florida Economic Development Program Evaluations
– Year 8, 13 (December 2020), available at https://oppaga.fl.gov/Documents/Reports/20-08.pdf (last visited Nov. 1, 2021).
Pursuant to s. 288.12265, F.S., VISIT FLORIDA contracts with the Department of Transportation through EFI to employ
staff and operate the welcome centers. See also VISIT FLORIDA, Florida Welcome Centers, available at
https://www.visitflorida.com/en-us/visitor-services/florida-welcome-centers.html (last visited Nov. 1, 2021).
6
Section 288.923(4)(c), F.S.
7
Supra note 5 at 12.
8
Section 288.1226(4), F.S.
BILL: SB 434 Page 3
For the 2021-2022 fiscal year, VISIT FLORIDA received an appropriation of $75 million.9
Payments are made to VISIT FLORIDA through EFI from the DEO. VISIT FLORIDA enters
into a funding agreement with EFI and the DEO and an operating agreement with EFI.10
Both VISIT FLORIDA and EFI’s division of tourism marketing will sunset on October 1, 2023,
unless reviewed and saved from repeal by the Legislature.11
Economic Development Programs Evaluations
Pursuant to s. 288.0001(2)(b), F.S., the Office of Economic and Demographic Research (EDR)
and the Office of Program Policy Analysis and Government Accountability (OPPAGA) must
provide a detailed analysis of certain economic development programs according to a recurring
schedule established in law. The OPPAGA’s most recent evaluation of VISIT FLORIDA was
completed in December 2020, while EDR’s most recent evaluation of VISIT FLORIDA was
completed in January 2021 and covered Fiscal Years 2015-2016, 2017-2018, and 2018-2019.
OPPAGA Review
The OPPAGA is required to evaluate programs for effectiveness and value to the state taxpayers
and to provide recommendations for consideration by the Legislature. The review determined
that Florida is outpacing several other states in tourism growth and has a significant competitive
advantage compared to other states with strong tourism industries, such as California, Nevada,
New York, and Texas.12
As a public-private partnership, VISIT FLORIDA is required to obtain private sector
contributions to match public contributions. Eligible matching contributions come from four
categories:
Direct cash contributions;
Fees for services;
Cooperative advertising, which is limited to partner expenditures for paid media placement
and actual market value of contributed products, air time, and print space; and
In-kind contributions, which is limited to the actual market value of promotional
contributions of partner-supplied benefits or of nonpartner-supplied airtime or print space.13
VISIT FLORIDA has continually met the statutorily required one-to-one match of public and
private funding. Over the review period, 83 percent of private sector contributions were in the
form of industry-contributed promotional value.14 On average, VISIT FLORIDA spends
59 percent of its annual budget on media and industry cooperative advertising efforts; most of
9
Chapter 2021-036, s. 152, Specific Appropriation 2251, Laws of Fla.
10
See Funding Agreement SB22-003 – Agreement between the Department of Economic Opportunity, Enterprise Florida,
Inc., and the Florida Tourism Industry Marketing Corporation, executed October 4, 2021, available at
https://facts.fldfs.com/Search/ContractDetail.aspx?AgencyId=400000&ContractId=S0165&Tab=4 (last visited Nov. 1,
2021).
11
Sections 288.1226(14) and 288.923(6), F.S. See ch. 2020-16, Laws of Fla.
12
Supra note 5, at 11
13
Section 288.1226(6), F.S.
14
Supra note 5, at 14
BILL: SB 434 Page 4
the remaining expenditures are comprised of fees and services and salaries and benefits.15
Certain contracts are subject to several reporting and transparency requirements.16
VISIT FLORIDA’s paying partners, which include members of the hospitality, entertainment,
and outdoor recreation industries, have expressed overall support for the agency’s mission and
services.
EDR Review
The EDR is required to analyze the economic benefits of the programs included in the
OPPAGA’s program evaluation. Economic benefit is defined as the direct, indirect, and induced
gains in state revenues as a percentage of the state’s investment, including state grants, tax
exemptions, tax refunds, tax credits, and other state incentives.17 The EDR uses the terms
economic benefit and return on investment (ROI) synonymously; these terms do not address the
overall effectiveness or benefit of a program and instead focus on tangible financial gains or
losses to state revenues.18
In its most recent review period, VISIT FLORIDA generated a positive ROI of 3.27. For every
dollar spent on VISIT FLORIDA’s marketing efforts, the state received $3.27 back in tax
revenue. From the state’s investment of $228 million over the review period, VISIT FLORIDA
contributed approximately $15.85 billion to Florida’s GDP and $744.64 million in state revenue.
VISIT FLORIDA’s positive ROI benefited from both the aggregate amount of spending and the
types of purchases made by tourists, the majority of which are subject to state sales and use tax,
and from the investments made by VISIT FLORIDA’s marketing partners, as VISIT
FLORIDA’s total share of marketing spend was lower than in previous years.19
Though it is difficult to determine VISIT FLORIDA’s precise influence on the state’s tourism
industry compared to that of other marketing efforts due to the many determinants of tourism
demand, the EDR approximates that, over the review period, the agency was responsible for
approximately 9.05 percent of all marketing-influenced tourists. This amounts to an estimated
17.57 million domestic out-of-state tourists and 2.35 million international tourists attributable to
VISIT FLORIDA’s marketing efforts.20
15
Id.
16
Chapter 2017-233, s. 17, Laws of Fla., created reporting and transparency requirements for contracts valued at $500,000 or
more as well as new provisions for private sector contributions. See s. 288.1226(6) and (13), F.S.
17
Section 288.005(1), F.S.
18
Office of Economic and Demographic Research, Return on Investment for VISIT FLORIDA, 1 (January 2021), available at
http://edr.state.fl.us/Content/returnoninvestment/Tourism2021.pdf (last visited Nov. 1, 2021). ROI is calculated by summing
state revenues generated by a program less state expenditures invested in the program, and dividing that amount by the state’s
investment. EDR uses the Statewide Model, a model that simulates Florida’s economy and captures the indirect and induced
economic activity resulting from direct program effects, to calculate these numbers.
19
Id. at 30-31
20
Id. at 24. This label is used to distinguish tourists from those who visited Florida due to other influences, such as visiting
family and friends or participating in a specific hobby or pastime.
BILL: SB 434 Page 5
III. Effect of Proposed Changes:
The bill extends the scheduled repeal date for the Florida Tourism Industry Marketing
Corporation, known as VISIT FLORIDA, and the Division of Tourism Marketing within
Enterprise Florida, Inc., until October 1, 2031. Without the bill, the statutory authorizations for
these entities would be repealed on October 1, 2023.
The bill takes effect upon becoming law.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
The five-year average of appropriations to VISIT FLORIDA is $65.4 million.21 If VISIT
FLORIDA is repealed on October 1, 2023, the dissolved entity’s assets, after all legal
liabilities and obligations have been paid or adequate provisions have been made, will
revert to the state.
21
Chapter 2021-036, s. 152, Specific Appropriation 2251, Laws of Fla.; Ch. 2020-111, SA 2294, s. 6, Laws of Fla.; Ch.
2019-115, SA 2328, s. 6, Laws of Fla.; Ch. 2018-9, SA 2239, s. 6, Laws of Fla.; Ch. 2017-233, s. 26, Laws of Fla.
BILL: SB 434 Page 6
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends sections 288.1226 and 288.923 of the Florida Statutes:
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2022 SB 434
By Senator Hooper
16-00588-22 2022434__
1 A bill to be entitled
2 An act relating to Florida tourism marketing; amending
3 ss. 288.1226 and 288.923, F.S.; delaying the scheduled
4 repeal of provisions governing the Florida Tourism
5 Industry Marketing Corporation and the Division of
6 Tourism Marketing of Enterprise Florida, Inc.,
7 respectively; providing an effective date.
8
9 Be It Enacted by the Legislature of the State of Florida:
10
11 Section 1. Subsection (14) of section 288.1226, Florida
12 Statutes, is amended to read:
13 288.1226 Florida Tourism Industry Marketing Corporation;
14 use of property; board of directors; duties; audit.—
15 (14) REPEAL.—This section is repealed October 1, 2031 2023,
16 unless reviewed and saved from repeal by the Legislature.
17 Section 2. Subsection (6) of section 288.923, Florida
18 Statutes, is amended to read:
19 288.923 Division of Tourism Marketing; definitions;
20 responsibilities.—
21 (6) This section is repealed October 1, 2031 2023, unless
22 reviewed and saved from repeal by the Legislature.
23 Section 3. This act shall take effect upon becoming a law.
Page 1 of 1
CODING: Words stricken are deletions; words underlined are additions.
CourtSmart Tag Report
Room: SB 110 Case No.: Type:
Caption: Commerce Committee Judge:
Started: 11/2/2021 9:01:15 AM
Ends: 11/2/2021 9:24:23 AM Length: 00:23:09
9:01:14 AM Chair calls meeting to order
9:01:15 AM Roll Call; quorum present
9:01:44 AM Chair gives opening comments
9:02:24 AM Tab 1, SB 336 by Sen. Berman
9:03:43 AM Robert Barron waives in support of bill
9:04:17 AM Sen. Berman waives close
9:04:25 AM Roll call on SB 336
9:04:38 AM SB 366 passes favorably
9:04:56 AM Tab 2, SM 174 by Sen. Pizzo
9:05:22 AM Amendment 418592
9:05:42 AM Amendment 418592 is adopted
9:06:02 AM Sen. Pizzo closes on bill as amended
9:06:24 AM Roll call on CS/SM 174
9:06:32 AM CS/SM 174 passes favorably
9:06:46 AM Tab 3, SB 288 by Sen. Garcia
9:08:17 AM Edgar Castro, Recording Industry Association of America, waives in support of bill
9:08:31 AM Sen. Garcia waives close on bill
9:08:42 AM Roll call on SB 288
9:08:50 AM SB 288 passes favorably
9:08:55 AM Chair passes to Sen Wright
9:09:01 AM Tab 4, SB 434 by Sen Hooper
9:09:48 AM Sen. Hooper explains bill
9:10:08 AM Jack Hebert, American Advertising Federation, waives in support
9:10:20 AM Carolyn Johnson, FL Chamber of Commerce, waives in support
9:10:37 AM Phillip Suderman, Americans for Prosperity, speaking against bill
9:12:47 AM Sen. Pizzo, question to speaker
9:13:48 AM Mr. Suderman responds
9:14:30 AM Sen. Pizzo follow up question
9:14:56 AM Response of Speaker
9:15:51 AM Chris Carmody, Central Florida Hotel and Lodging Association, waives in support
9:16:00 AM Samantha Padgett, FL Restaurant & Lodging Assoc., speaking in support of bill
9:17:23 AM Sen. Torres in debate
9:18:09 AM Sen. Hutson comments
9:18:47 AM Sen. Pizzo comments
9:19:07 AM Chair Wright comments
9:20:01 AM Sen. Hooper closes on SB 434
9:22:52 AM Roll call on SB 434
9:23:00 AM SB 434 passes favorably
9:23:30 AM Sen. Gruters motions to votes affirmative on SB 336 & SM 174. No objection. Motions accepted.
9:23:57 AM Sen. Pizzo motions adjournment
9:24:08 AM Meeting is adjourned
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