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Meeting Packet - Regulatory Reform Subcommittee, Commerce Committee (January 20, 2022)

Summary

Meeting packet of the Regulatory Reform Subcommittee of The Florida House of Representatives Commerce Committee for Thursday, January 20, 2022, 1:00 PM, with Bob Rommel as Chair. The agenda lists CS/HB 519 Rights of Third Parties Under the Uniform Commercial Code, CS/HB 545 Service of Process, HB 831 Licensure Requirements for Land Surveyors and Mappers, HB 1033 Homeowners' Associations, HB 1095 Telephone Solicitation and PCS for HB 635 -- Building Permits. The staff analysis of CS/HB 519 describes Article 9 of the Uniform Commercial Code as governing secured transactions and discusses the "Article 9 override" restriction on contract provisions that prohibit or restrict the creation of a security interest in certain types of collateral. The text of PCS for HB 635 provides an effective date of July 1, 2022.

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“Meeting Packet - Regulatory Reform Subcommittee, Commerce Committee (January 20, 2022).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2022-01-20-3101-regulatory-reform-subcommittee-meeting-packets-fn-rrs-601b19e6b9/, SHA-256 fd95590c64d4b51d2c1092550cba6f6cd753e2165f7bdc5c4b7b7c565539c9f3.

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                Regulatory Reform
                  Subcommittee
                Thursday, January 20, 2022
                    1:00 PM - 3:00 PM
                 Webster Hall (212 Knott)



                   Meeting Packet




Chris Sprowls                                Bob Rommel
Speaker                                            Chair
                 The Florida House of Representatives
                                        Commerce Committee
                                Regulatory Reform Subcommittee
Chris Sprowls                                                                                    Bob Rommel
Speaker                                                                                                Chair


                                    Meeting Agenda
                                  Thursday, January 20, 2022
                                     1:00 PM – 3:00 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 519 Rights of Third Parties Under the Uniform Commercial Code
           by Civil Justice & Property Rights Subcommittee, Leek
           CS/HB 545 Service of Process by Civil Justice & Property Rights
           Subcommittee, Beltran
           HB 667 Department of Business and Professional Regulation by McClain
           HB 831 Licensure Requirements for Land Surveyors and Mappers by
           Mariano
           HB 1033 Homeowners' Associations by Beltran



                303 House Office Building, 402 South Monroe Street, Tallahassee, FL 32399-1300
                                                Phone Numbers
This is in Header
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Page 2

          HB 1095 Telephone Solicitation by Beltran
          HB 1185 Legislative Review of Proposed Regulation of Unregulated
          Functions by Plakon

          Consideration of the following proposed committee substitute(s):

          PCS for HB 635 -- Building Permits

   V.     Closing Remarks

   VI.    Adjournment
CS/HB 519
                                  HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #:     CS/HB 519 Rights of Third Parties Under the Uniform Commercial Code
SPONSOR(S): Civil Justice & Property Rights Subcommittee, Leek
TIED BILLS:        IDEN./SIM. BILLS: SB 336

  REFERENCE                                                   ACTION                  ANALYST            STAFF DIRECTOR or
                                                                                                         BUDGET/POLICY CHIEF

  1) Civil Justice & Property Rights Subcommittee             16 Y, 0 N, As CS        Mawn               Jones

  2) Regulatory Reform Subcommittee                                                   Wright             Anstead

  3) Judiciary Committee


                                             SUMMARY ANALYSIS
The Uniform Commercial Code (“UCC”) is a set of laws, adopted by all fifty states, governing and providing
uniformity in commercial transactions in the United States. Florida’s UCC provisions are codified in chs. 670–
680, Florida Statutes.

Article 9 of the UCC (codified in ch. 679, F.S.) governs secured transactions, meaning transactions involving
the granting of credit secured by personal property (“collateral”), where the creditor may take possession of the
collateral if the debtor defaults on the loan. In 2001, to promote the free assignability of personal property,
including intangible property rights, the UCC was amended to include a general restriction on contract
provisions which prohibit or restrict the creation of a security interest in certain types of collateral (“Article 9
override”), including:
     General intangibles, meaning any personal property, including things in action other than certain
        defined collateral types (codified in s. 9-408 of the UCC and s. 679.4081, F.S.); and
     Payment intangibles, meaning general intangibles under which the account debtor’s principal obligation
        is a monetary obligation (codified in s. 9-406 of the UCC and s. 679.4061, F.S.).

The Article 9 override may apply where an owner in a partnership or a limited liability company (“LLC”) creates
a security interest in his or her ownership interest in the business, even where the business’s operating
agreement prohibits the owner from doing so, because such interest is generally classified as either a general
intangible or a payment intangible. However, applying the Article 9 override in such instances potentially
conflicts with the “pick your partner principle,” which recognizes that an owner in such a business has a
substantial stake in determining co-owners and should not generally be forced into doing business with
someone the owner did not intend.

In 2018, ss. 9-406 and 9-408 of the UCC were amended to eliminate the potential conflict with the “pick your
partner principle.” Specifically, the amendments provided that the Article 9 override does not apply to a security
interest in an ownership interest in a general or limited partnership or an LLC. To date, at least 10 states have
adopted some form of these amendments.

CS/HB 519 amends ss. 679.4061 and 679.4081, F.S., to incorporate the 2018 UCC amendments. Specifically,
the bill provides that the override provisions set out in those sections do not apply to a security interest in an
ownership interest in a general partnership, a limited partnership, or an LLC. This removes any potential
conflict between these sections and the “pick your partner principle” and promotes the freedom of the owners
in a partnership or LLC to contract.

The bill does not appear to have a fiscal impact on state or local governments.

The bill provides an effective date of January 1, 2023.




This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h0519b.RRS
DATE: 1/18/2022
                                                           FULL ANALYSIS

                                                   I. SUBSTANTIVE ANALYSIS

    A. EFFECT OF PROPOSED CHANGES:
         Background

         The Uniform Commercial Code (“UCC”), a set of laws governing and providing uniformity in commercial
         transactions in the United States, is a joint project between the Uniform Law Commission (“ULC”) and
         the American Law Institute (“ALI”).1 The UCC has been adopted by all fifty states.2 The UCC includes
         both general provisions and specific provisions governing sales, leases, negotiable instruments, bank
         deposits and collections, letters of credit, documents of title, investment securities, secured
         transactions, and leases.3 Florida’s UCC provisions are codified in chs. 670–680, Florida Statutes.

         Article 9’s Anti-Assignment Override

         Article 9 of the UCC (codified in ch. 679, F.S.) governs secured transactions, which are transactions
         involving the granting of credit secured by personal property (“collateral”), where the creditor may take
         possession of the collateral if the debtor defaults on the loan. 4 In 2001, to promote the free assignability
         of personal property, including intangible property rights, and the ability of a debtor to obtain credit, the
         UCC was amended to include a general restriction against contract provisions prohibiting the creation
         of a security interest in certain types of collateral (“Article 9 override”),5 including:
              General intangibles, meaning any personal property, including things in action other than certain
                 defined collateral types (codified in s. 9-408 of the UCC and s. 679.4081, F.S.);6 and
              Payment intangibles, meaning general intangibles under which the account debtor’s 7 principal
                 obligation is a monetary obligation (codified in s. 9-406 of the UCC and s. 679.4061, F.S.).8

         In other words, the Article 9 override renders ineffective restrictions between an account debtor and a
         debtor preventing the assignment of general intangibles or payment intangibles as collateral for a debt.
         The Article 9 override also applies to an ordinary security interest in a complete ownership interest or in
         economic rights alone and to the outright sale of a payment intangible.9

         In the context of an ownership interest in a business, the “account debtor” is the business while the
         “debtor” is the person holding the ownership interest. Thus, the Article 9 override would not apply to an
         anti-assignment clause in a contract between a business’s owners themselves; it would only apply to
         such a clause in a contract between a business’s owners and the business.

         Potential Conflict with the “Pick Your Partner Principle”


1 Chs. 670-680, F.S.; Uniform Law Commission, Uniform Commercial Code, https://www.uniformlaws.org/acts/ucc (last visited Jan. 13,

2022).
2
  Id.
3 Id.
4 Id.
5 Sara T. Toner and R. Parker Havis, Lessons From Delaware: Navigating the 2018 Amendments to Sections 9 -406 and 9-408 of

Article 9 of the Uniform Commercial Code, https://cdn.ymaws.com/acrel.site-
ym.com/resource/resmgr/news_and_notes/february_2020/2020-02_toner_-_lessons_from.pdf (last visited Jan. 13, 2022); Florida Bar
Business Law Section, Exclusion of LLC and Partnership Interests from UCC Article 9 Override: Executive Summary,
http://www.flabizlaw.org/files/Summary%20and%20Materials%20-%20UCC%209-406%20and%209-
408%20Amendments%20%28v2%29.pdf (last visited Jan. 13, 2022).
6
  General intangibles do not include accounts, chattel paper, commercial tort claim s, deposit accounts, documents, goods, instruments,
investment property, letter-of-credit rights, letters of credit, money, and oil, gas, or other minerals before extraction. S. 9 -102, UCC; S.
679.1021(1)(pp), F.S.
7 “Account debtor” means a person obligated on an account, chattel paper, or general intangible, but does not include a person

obligated to pay a negotiable instrument. S. 9-102, UCC; s. 679.1021(1)(c), F.S.
8 Article 9 does not apply to the outright sale of a complete ownership interest or of governance rights alone.

9 Carl S. Bjerre, Daniel S. Kleinberger, Edwin E. Smith, and Steven O. Weise, LLC and Partnership Transfer Restrictions Excluded from
UCC Article 9 Overrides, https://businesslawtoday.org/2019/02/llc-partnership-transfer-restrictions-excluded-ucc-article-9-overrides/
(last visited Jan. 13, 2022).
STORAGE NAME: h0519b.RRS                                                                                                            PAGE: 2
DATE: 1/18/2022
          A partnership is an association of two or more persons carrying on as co-owners of a business for profit
          formed under s. 620.8202, F.S., or another jurisdiction’s comparable law. 10 A limited liability company
          (“LLC”) is a business formed or existing under ch. 605, F.S., or a business that becomes subject to that
          chapter by operation of law, formed to protect its members from personal liability for the business’s
          debts or other obligations.11 An interest in a partnership or LLC is typically categorized as a general
          intangible as the business owes the interested party rights associated with partnership or membership
          rather than a defined debt.12 However, an interest in a partnership or LLC involving economic rights
          may be categorized as a payment intangible.13

          The Article 9 override may apply where an owner in a partnership or an LLC creates a security interest
          in his or her ownership interest in the business, or some component thereof, even where the business’s
          operating agreement prohibits the owner from doing so. 14 However, applying the Article 9 override in
          such instances potentially conflicts with the “pick your partner principle” reflected in partnership and
          LLC law, which generally recognizes that an owner in such a business has a substantial stake in
          determining who the co-owners are and should not be forced into doing business with someone the
          owner did not intend to do business with.15 The Florida Bar’s 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 his or her 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 his or her 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 operating agreement. If the member
                    defaulted on the loan, the lender could foreclose on its security 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).16

          To avoid this conflict, some partnerships and LLCs may attempt to categorize an ownership interest in
          the business as a security, classified by the UCC as “investment property” rather than a general
          intangible or a payment intangible.17 This allows the business to opt in to Article 8 of the UCC,
          governing securities, and bypass Article 9 and its override altogether. However, by opting into Article 8,
          the business faces the potential for increased transaction costs and the restructuring of its organization
          documents.18

          2018 UCC Amendments

          In 2018, the ULC and the ALI approved amendments to ss. 9-406 and 9-408 of the UCC to eliminate
          the potential conflict with the “pick your partner principle” (“2018 UCC Amendments”). 19 Specifically, the
          amendments provide that the Article 9 override does not apply to a security interest in an ownership
          interest in a general or limited partnership or an LLC.20 Several states have adopted these amendments
          in their UCC codification statutes, amended their partnership and LLC statutes to achieve a similar
          result, or employed a combination of the two, as follows: 21

10 S. 620.8101(7), F.S.
11 Ss. 605.0102(36) and 605.0304(1), F.S.
12 Toner and Havis, supra note 4; Florida Bar Business Law Section, supra note 4.
13 Id.
14 Bjerre, et al., supra note 8.
15 Id.; Florida Bar Business Law Section, supra note 4.
16 Florida Bar Business Law Section supra note 4.
17 Bjerre, et al., supra note 8; Florida Bar Business Law Section, supra note 4.
18 Id.
19 Florida Bar Business Law Section, supra note 4.
20 Id.
21 Id.

STORAGE NAME: h0519b.RRS                                                                                      PAGE: 3
DATE: 1/18/2022
    State                        Method                                               Statutes
  Alabama     Amended its LLC and limited partnership               §§ 10A-5A-1.06 and 10A-9-7.02, Ala.
              statutes.                                             Code
  Colorado    Amended all applicable statutes.                      §§ 4-9-406, 4-9-408, 7-90-104, Col. Rev.
                                                                    Stat.
  Delaware Amended all applicable statutes.                         Title 6, §§ 9-406, 9-408, 15-104, 17-1101,
                                                                    and 18-1101, Del. Code Ann.
  Kansas      Amended its LLC statute.                              § 17-76, K.S.A.
  Kentucky    Amended its LLC and partnership statutes.             §§ 275.255, 362.2-702, 32.1-503, Ky.
                                                                    Rev. Stat.
  Maine       Amended its LLC statute.                              Title 31, § 1507, Maine Stat.
  North       Amended its UCC codification and LLC statutes.        §§ 25-9-406, 25-9-408, 57D-10-02, N.C.
  Carolina                                                          Gen. Stat. Ann.
  Ohio        Amended its partnership statute.                      § 1776.49, Ohio Rev. Code Ann.
  Texas       Amended all applicable statutes.                      §§ 9.406, 9.408, 101.106, and 154.001,
                                                                    Tex. Bus. & Com. Code Ann.
  Virginia    Amended all applicable statutes.                      §§ 8.9A-406, 8.9A-408, 13.1-1001.1, 50-
                                                                    73.84, Va. Code Ann.

       Effect of Proposed Changes

       CS/HB 519 amends ss. 679.4061 and 679.4081, F.S., to incorporate the 2018 UCC amendments.
       Specifically, the bill provides that the anti-assignment override provisions set out in those sections do
       not apply to a security interest in an ownership interest in a general partnership, a limited partnership,
       or an LLC. This removes any potential conflict between these sections and the “pick your partner
       principle” by allowing contract terms prohibiting the creation of such security interests to stand and
       promotes the freedom of the owners in a partnership or LLC to contract.

       The bill provides an effective date of January 1, 2023.

   B. SECTION DIRECTORY:
       Section 1: Amends s. 679.4061, F.S., relating to discharge of account debtor; notification of
                  assignment; identification and proof of assignment; restrictions on assignment of accounts,
                  chattel paper, payment intangibles, and promissory notes ineffective.
       Section 2: Amends s. 679.4081, F.S., relating to restrictions on assignment of promissory notes,
                  health-care-insurance receivables, and certain general intangibles ineffective.
       Section 3: Provides an effective date of January 1, 2023.




STORAGE NAME: h0519b.RRS                                                                                    PAGE: 4
DATE: 1/18/2022
                           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 will allow a contract among business partners or a controlling statute to limit the ability of an
       owner in a partnership or LLC to create a security interest in his or her ownership interest in the
       business. The bill:
            Protects the investment of the owners in a partnership or LLC in a manner consistent with the
                “pick your partner principle;”
            May eliminate the need for a partnership or LLC to classify an ownership interest in the
                business as a security, thereby reducing the business’s transaction costs; and
            May reduce litigation costs related to disputes over the application of the override provisions to
                ownership interests in a partnership or LLC.

   D. FISCAL COMMENTS:
       None.

                                               III. COMMENTS

   A. CONSTITUTIONAL ISSUES:

       1. Applicability of Municipality/County Mandates Provision:
          Not applicable. The bill does not appear to affect county or municipal governments.

       2. Other:
          None.

   B. RULE-MAKING AUTHORITY:
       Not applicable.

   C. DRAFTING ISSUES OR OTHER COMMENTS:
       None.

                           IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
   On January 13, 2022, the Civil Justice and Property Rights Subcommittee adopted one amendment and
   reported the bill favorably as a committee substitute. The amendment changed the bill’s effective date from
   July 1, 2022, to January 1, 2023.
STORAGE NAME: h0519b.RRS                                                                                   PAGE: 5
DATE: 1/18/2022
   This analysis is drafted to the committee substitute as passed by the Civil Justice and Property Rights
   Subcommittee.




STORAGE NAME: h0519b.RRS                                                                                 PAGE: 6
DATE: 1/18/2022
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           CS/HB 519                                                                                            2022




    1                                          A bill to be entitled
    2              An act relating to the rights of third parties under
    3              the Uniform Commercial Code; amending ss. 679.4061 and
    4              679.4081, F.S.; providing that certain restrictions on
    5              the effectiveness of terms in specified agreements and
    6              the effectiveness of certain rules of law, statutes,
    7              or regulations related to the discharge of account
    8              debtors and certain restrictions on the assignment of
    9              promissory notes, health-care-insurance receivables,
10                 and certain general intangibles, respectively, do not
11                 apply to a security interest in an ownership interest
12                 in a general partnership, a limited partnership, or a
13                 limited liability company; conforming provisions to
14                 changes made by the act; providing an effective date.
15
16         Be It Enacted by the Legislature of the State of Florida:
17
18                 Section 1.          Subsections (4) and (6) of section 679.4061,
19         Florida Statutes, are amended, and subsection (12) is added to
20         that section, to read:
21                 679.4061           Discharge of account debtor; notification of
22         assignment; identification and proof of assignment; restrictions
23         on assignment of accounts, chattel paper, payment intangibles,
24         and promissory notes ineffective.—
25                 (4)         Except as otherwise provided in subsections (5) and

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        CS/HB 519                                                                                            2022




26      (12) subsection (5) and ss. 680.303 and 679.4071, and subject to
27      subsection (8), a term in an agreement between an account debtor
28      and an assignor or in a promissory note is ineffective to the
29      extent that it:
30               (a)         Prohibits, restricts, or requires the consent of the
31      account debtor or person obligated on the promissory note to the
32      assignment or transfer of, or the creation, attachment,
33      perfection, or enforcement of a security interest in, the
34      account, chattel paper, payment intangible, or promissory note;
35      or
36               (b)         Provides that the assignment or transfer or the
37      creation, attachment, perfection, or enforcement of the security
38      interest may give rise to a default, breach, right of
39      recoupment, claim, defense, termination, right of termination,
40      or remedy under the account, chattel paper, payment intangible,
41      or promissory note.
42               (6)         Except as otherwise provided in subsection (12) and
43      ss. 680.303 and 679.4071, and subject to subsections (8) and
44      (9), a rule of law, statute, or regulation that prohibits,
45      restricts, or requires the consent of a government, governmental
46      body or official, or account debtor to the assignment or
47      transfer of, or creation of a security interest in, an account
48      or chattel paper is ineffective to the extent that the rule of
49      law, statute, or regulation:
50               (a)         Prohibits, restricts, or requires the consent of the

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        CS/HB 519                                                                                            2022




51      government, governmental body or official, or account debtor to
52      the assignment or transfer of, or the creation, attachment,
53      perfection, or enforcement of a security interest in the account
54      or chattel paper; or
55              (b)         Provides that the assignment or transfer or the
56      creation, attachment, perfection, or enforcement of the security
57      interest may give rise to a default, breach, right of
58      recoupment, claim, defense, termination, right of termination,
59      or remedy under the account or chattel paper.
60              (12)        Subsections (4), (6), and (11) do not apply to a
61      security interest in an ownership interest in a general
62      partnership, a limited partnership, or a limited liability
63      company.
64              Section 2.          Subsections (1) and (3) of section 679.4081,
65      Florida Statutes, are amended, and subsection (8) is added to
66      that section, to read:
67              679.4081           Restrictions on assignment of promissory notes,
68      health-care-insurance receivables, and certain general
69      intangibles ineffective.—
70              (1)         Except as otherwise provided in subsections (2) and
71      (8) subsection (2), a term in a promissory note or in an
72      agreement between an account debtor and a debtor which relates
73      to a health-care-insurance receivable or a general intangible,
74      including a contract, permit, license, or franchise, and which
75      term prohibits, restricts, or requires the consent of the person

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         CS/HB 519                                                                                            2022




 76      obligated on the promissory note or the account debtor to, the
 77      assignment or transfer of, or creation, attachment, or
 78      perfection of a security interest in, the promissory note,
 79      health-care-insurance receivable, or general intangible, is
 80      ineffective to the extent that the term:
 81              (a)         Would impair the creation, attachment, or perfection
 82      of 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
 88      intangible.
 89              (3)         Except as otherwise provided in subsection (8), a rule
 90      of law, statute, or regulation that prohibits, restricts, or
 91      requires the consent of a government, governmental body or
 92      official, person obligated on a promissory note, or account
 93      debtor to the assignment or transfer of, or creation of a
 94      security interest in, a promissory note, health-care-insurance
 95      receivable, or general intangible, including a contract, permit,
 96      license, or franchise between an account debtor and a debtor, is
 97      ineffective to the extent that the rule of law, statute, or
 98      regulation:
 99              (a)         Would impair the creation, attachment, or perfection
100      of a security interest; or

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         CS/HB 519                                                                                            2022




101              (b)         Provides that the assignment or transfer or the
102      creation, attachment, or perfection of the security interest may
103      give rise to a default, breach, right of recoupment, claim,
104      defense, termination, right of termination, or remedy under the
105      promissory note, health-care-insurance receivable, or general
106      intangible.
107              (8)         This section does not apply to a security interest in
108      an ownership interest in a general partnership, a limited
109      partnership, or a limited liability company.
110              Section 3.         This act shall take effect January 1, 2023.




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CS/HB 545
                                  HOUSE OF REPRESENTATIVES STAFF ANALYSIS

BILL #:     CS/HB 545 Service of Process
SPONSOR(S): Civil Justice & Property Rights Subcommittee, Beltran
TIED BILLS:        IDEN./SIM. BILLS: SB 1062


    REFERENCE                                                   ACTION                  ANALYST            STAFF DIRECTOR or
                                                                                                           BUDGET/POLICY
                                                                                                           CHIEF

    1) Civil Justice & Property Rights Subcommittee             16 Y, 0 N, As CS        Mathews            Jones

    2) Regulatory Reform Subcommittee                                                   Brackett           Anstead

    3) Judiciary Committee


                                              SUMMARY ANALYSIS
“Process” is used by a court or administrative body to acquire or exercise jurisdiction over a person or property.
Original process includes an original writ or summons issued by the court as the first step in a lawsuit and
includes a notice to the party being served regarding the time and date to appear before the court. Final
process is a writ of execution pursuant to a final judgment issued in the legal proceeding. The traditional and
preferred form of service of process on a competent adult is by personal delivery to that person.

In Florida, business entities are categorized differently, depending on how each business is created and
structured. The procedures for service of process on various types of business entities are not uniform under
current law. The required methodology for service of process differs for each business entity, including
partnerships, limited partnerships, limited liability companies, foreign corporations, and domestic corporations.
A business’ registered agent need be served first only if that business is an LLC. This may lead to confusion
and lack of actual notice to the intended party.

When a party is unable to personally serve an individual or a business entity’s representative, Florida law
allows service of process through substituted service on the Florida Secretary of State, either by personal
service or by certified mail.

CS/HB 545 makes uniform the method for serving process on business entities, by requiring each entity to
identify a registered agent for service of process. The bill expands s. 48.091, F.S., to specifically apply to
limited partnerships, limited liability limited partnerships, limited liability companies, and corporations. As such,
the bill requires each type of business entity to designate a registered agent and registered office for service of
process. The bill repeals the duty to work through the hierarchy of officers and prioritizes service of process on
a registered agent.

The bill makes other changes to current law to simplify and modernize service of process against business
entities and other specified individuals, including authorizing a court to permit service by email or other
electronic means in limited situations.

The bill is unlikely to have a significant fiscal impact on state and local government.

Except for two sections within the bill which are effective upon becoming law, the bill provides an effective date
of January 2, 2023.




This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h0545b.RRS
DATE: 1/18/2022
                                                         FULL ANALYSIS

                                                 I. SUBSTANTIVE ANALYSIS

    A. EFFECT OF PROPOSED CHANGES:
         Background

         Judicial Service of Process

         “Process” is used by a court or administrative body to acquire or exercise jurisdiction over a person or
         property.1 There are three primary types of process: original, mesne, and final process. Original
         process includes an original writ or summons issued by the court as the first step in a lawsuit and
         includes a notice to the party being served regarding the time and date to appear before the court.
         Mesne process is an intermediate process issued between the original process and the final judgment.
         Final process is a writ of execution pursuant to a final judgment issued in the subject legal proceeding.

         Generally, service of process is made by:
             Delivering a copy of the process to the person to be served; or
             Leaving the process at the person’s usual place of abode2 with any person residing there who is
               fifteen years of age or older and informing that person of the contents of the process.3

         Service of Process on Business Entities

         In Florida, business entities may be categorized differently depending on how each business entity is
         created and structured. The procedures for service of process on various types of busines s entities are
         not consistent under current law. Florida law recognizes the following types of business entities:
              Partnerships, which are entities with two or more persons who co-own a business and share in
                  the profits and losses of the business.4
              Limited Partnerships, which are partnerships composed of both general and limited partners
                  where each partner may determine or limit his or her personal liability within the partnership; in
                  limited partnerships, limited partners are not responsible for the partnership’s actions, debts,
                  and obligations.5
              General Partnerships, which are partnerships where the rights and responsibilities are divided
                  equally among the partners and each partner may act on behalf of all the other partners. 6
              Corporations, which are independent legal entities that exist separately from the people who
                  own, control, and manage them; the owners of the corporation have limited liability and the
                  corporation is considered to be its own, separate “person.” 7
              Limited Liability Companies, which are similar to corporations in that they offer limited personal
                  liability, but do not have the same management requirements and obligatory formalities as a
                  corporation.8
              Sole Proprietorships, which are unincorporated businesses owned and operated by one
                  individual with no distinction between the business and the owner. 9

                  Partnerships



1 Black’s Law Dictionary 837 (6th ed. 1995).
2 “Usual place of abode” means the place where the party actually lives at the time of service of process. Shurman v. Atlantic Mortg. &

Inv. Corp., 795 So. 2d 952 (Fla. 2001).
3 S. 48.031(1)(a), F.S.

4 Florida Department of State, Types of Business Entities/Structures, https://dos.myflorida.com/sunbiz/start-
business/corporate-structure/ (last visited on Jan. 11, 2022).
5 Id.
6 Id.
7 Id.
8 Id.
9 Id.
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         Process against a partnership may be served on any partner and is valid as if served on each individual
         partner.10 If a partner is not available during regular business hours, he or she may designate an
         employee to accept service on his or her behalf.11 Service must first be attempted upon either a partner
         or his or her designated employee during regular business hours.12

         Service against a limited partnership may be served on any general partner or on the designated agent
         for service of process specified in the certificate of limited partnership. 13 If a general partner cannot be
         found in Florida and service cannot be made on the agent because of failure to maintain such an agent
         or adequately identify such agent, service of process may be made upon the Florida Secretary of State
         as agent of the limited partnership.14

                   Limited Liability Company (LLC)

         Service of process against a foreign or domestic LLC must first be made on the LLC’s registered
         agent.15 If service cannot be made on the registered agent because the LLC has failed to identify such
         an agent or because the LLC does not have a registered agent, process against the LLC may be
         served on:
              A member of a member-managed LLC;
              A manager of a manager-managed LLC; or
              An employee designated by the member or manager to accept service on behalf of the LLC.16

         After one attempt to serve the member, manager, or designated employee, process may be served on
         the person in charge of the LLC during regular business hours. 17 If process is unable to be made after
         reasonable diligence under the aforementioned methods, service of process may be made by service
         on the Florida Secretary of State as agent of the LLC.18

         Business entities may sometimes have authority to convert from one form or entity to another, known
         as conversion. Where the converting entity is a registered LLC and the converted entity is any form of
         foreign entity that is not recognized in Florida, the entity must give the Florida Secretary of State a
         mailing address that can be used if the entity is served by substitute service upon the Florida Secretary
         of State.

         In order to cancel its certificate of authority to transact business in Florida, a foreign LLC must, in part,
         furnish the Florida Secretary of State with an address that can be used should the company be served
         through substitute process through the Florida Secretary of State and must commit to keeping such
         record address accurate and current.

                   Agents of Nonresidents Doing Business in Florida

         For any partnership that engages in business in Florida but does not have a principal place of business
         in Florida, process may be served on the person who is in charge of a business in which the defendant
         is engaged within Florida at the time of service.19 A copy of the process with a notice of such service
         must be sent by registered mail or certified mail to the partnership, and an affidavit of compliance must
         be filed with the court.20

                   Corporations

10 S. 48.061(1),   F.S.
11 Id.
12 Id.
13 S. 48.061(2),   F.S.
14 Id.
15 S. 48.062(1), F.S.
16 S. 48.062(2), F.S.
17 S. 48.062(2)(c), F.S.
18 S. 48.062(3), F.S.
19 S. 48.071, F.S.
20 Id.
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         Service on a private corporation may be served on the president or vice president or other head of the
         corporation.21 In the absence of a president or vice president, service may be made on the cashier,
         treasurer, secretary, or general manager.22 In the absence of a president, vice president, cashier,
         treasurer, secretary, or general manager, service may be made upon any director of the corporation. 23
         If no such person or director is available, service may be made on any officer or business agent
         residing in Florida.24

         Alternatively, process may be served on the corporation’s registered agent as designated by the
         corporation.25 Each Florida corporation and foreign corporation qualified to do business in Florida must
         designate a registered agent in compliance with ch. 607, F.S.26

         In order to cancel its certificate of authority to transact business in Florida, a foreign corporation must,
         in part, furnish the Florida Secretary of State with an address that can be used should the corporation
         be served through substitute process through the Florida Secretary of State and must commit to
         keeping such record address accurate and current.

                   Lack of Uniformity

         Currently, there is not a uniform method for effectuating service on each type of business entity in
         Florida. For example, a party is only required to first serve a registered agent when the entity being
         served is a LLC.27

         Substituted Service

         The Florida Secretary of State, as head of the Florida Department of State, is involved in many aspects
         of service of process. The Division of Corporations, housed within the Department of State, accepts
         business entity registrations and renewals, and maintains a publicly-accessible record of every entity,
         listing a registered agent and the names of the various officers, leaders, and managers in the entity. In
         some scenarios involving nonresident business entities, Florida law allows service of process through
         substituted service on the Florida Secretary of State when a party is unable to personally serve the
         individual or the business entity’s representative.28 Substituted service on the Secretary of State is
         effectuated by either hand delivery or by certified mail addressed to the Secretary of State, together
         with a fee of $8.75. A copy of the process must be sent to the individual or entity at the last known
         address by certified or registered mail.29 Case law interpreting the statute requires that a party using
         substituted service on the Secretary of State make an honest and conscientious effort, in addition to the
         mailing, to provide the defendant with actual notice of the lawsuit, 30 which may be noticed through a
         known email.31

         Service of Notice of Intent to Initiate Litigation for Medical Negligence




21 S. 48.081(1),   F.S.
22 Id.
23 Id.
24 Id.
25 S. 48.081(3), F.S.
26 S. 48.091(1), F.S.
27 S. 48.062(1), F.S.
28 S. 48.161, F.S.; S. 48.181, F.S.
29 S. 48.161, F.S.
30 All Mobile Video v. Whitener, 773 So. 2d 587, 589-90 (Fla. 1st DCA 2000) (plaintiff knew telephone and fax number of

defendant company but did not call or fax for new address when mailed copy of process was returned).
31 Crystal Springs Partners, Ltd. v. Michael R. Band, P.A., 132 So. 3d 1230 (Fla 3rd DCA 2014) (law firm plaintiff knew

former client’s email address and should have emailed copy of process in addition to mailing).
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        Florida law requires a claimant to notify each prospective defendant of his or her intent to initiate
        litigation for medical negligence. Such notice may only be made by certified mail, return receipt
        requested.32

        Effect of Proposed Changes

        Judicial Service of Process on Business Entities

        CS/HB 545 makes uniform the methods for serving process on business entities by requiring each
        business entity to designate a registered agent to accept service of process.

        The bill expands s. 48.091, F.S., to specifically apply to limited partnerships, limited liability limited
        partnerships, and limited liability companies as well as corporations. As such, under the bill, each type
        of business entity is required to designate a registered agent and registered office for service of
        process. The bill adds all forms of business entities to the statute governing registered agents and
        prioritizes service of process upon the registered agent. The bill codifies the duty of a registered agent
        to promptly forward the process and any related documents to the responsible person within the
        business entity. Under the bill, when an agent of a nonresident doing business in Florida is served on
        behalf of the nonresident, the process served is as valid as if it was served personally on the
        nonresident. However, a copy of such process must be sent to the nonresident person or business and
        may be sent by certified mail, registered mail, or by a commercial firm regularly engaged in the
        business of document or package delivery. The party seeking to serve the nonresident is responsible
        for filing an affidavit of service of such with the court.

        Cancellation of Certificates of Authority and Conversion

        The bill adds a requirement that a business which cancels its certificate of authority to transact
        business in Florida must provide an email address along with the required mailing address to the state.
        Further, the bill requires any business converting from one entity to another to provide an email
        address along with the other requirements to the state.

        Substituted Service

        The bill modernizes substituted service upon the Florida Secretary of State, allowing such service to
        the Secretary electronically or via a commercial courier service such as UPS or Federal Express. When
        using substituted service on the Secretary of State, the bill:
             Allows the Secretary of State to agree to receive service of process electronically.
             Repeals the $8.75 fee payable to the Secretary of State.
             Expands the options for delivery by adding the option to use a commercial firm regularly
                engaged in the business of document or package delivery as an alternative to mailing.
             Requires that the party send a copy by email or other electronic means if the parties have
                recently and regularly used any of those means of communication.
             Requires that the party send a copy by mail or commercial delivery of the process to the last
                known address of the party being served.
             Requires the party to file with the court proof of delivery from the post office or commercial
                service, unless the party being served is actively refusing or rejecting delivery.
             Requires the party to file an affidavit showing due diligence in the search for the party being
                served and the need for substituted service, together with any return receipt or other proof of
                mailing or delivery, within 40 days after delivery to the Secretary of State. The court may extend
                the 40 days.
             Establishes that the date of service of substituted process is the date of delivery to the
                Secretary of State. The Secretary of State must maintain a record of each process delivered.

        The bill also defines the due diligence necessary before resorting to substituted service on a natural
        person as:

32 S. 766.106(2),   F.S.
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              Diligent inquiry and an honest and conscientious effort appropriate to the circumstances to
               acquire the information necessary to effectuate personal service;
              Reasonable use of the knowledge at the party’s command, including knowledge obtained by the
               diligent inquiry; and
              An appropriate number of attempts to serve the party, taking into account the particular
               circumstances.

       In making the determination as to whether the party effectuating service on a natural person used due
       diligence, the bill creates a rebuttable presumption that the serving party exercised due diligence by
       making three good faith attempts to serve the other party at each location where and during the hours
       when such party is likely to be found, using reasonably available resources to the party seeking to
       secure service of process.

       The bill authorizes substituted service on the Secretary of State for nonresidents and foreign business
       entities doing business in Florida or an individual or business concealing its whereabouts. Under the
       bill, any individual or foreign business concealing its whereabouts is deemed to have appointed the
       Secretary of State as its agent on whom service of process may be made.

       Proof of Return Service

       For personal service made on an individual or party in another state or territory within the United
       States, a return-of-service form must be filed with the court. The return-of-service form, or any other
       competent evidence, must include the time, manner, and place of service.

       Service in Foreign Countries

       The bill creates s. 48.197, F.S., providing requirements for the service of process on a party in a foreign
       country. Service may be made on a party in a foreign country by any internationally agreed upon
       means of service whereby actual notice of the proceedings is provided. If there is no internationally
       agreed upon means of service, service may be made as permitted by the foreign country’s law for
       service or as the foreign country directs in response to a letter rogatory or letter of request. Additionally,
       unless specifically prohibited by the laws of the foreign country, service may be made by delivering a
       copy of the summons and complaint to the individual or by using any type of mail which the clerk
       addresses and sends to the party and requires a signed receipt. Service in a foreign country may also
       be made pursuant to motion and order of the court by alternative means, including electronically by
       email or other technology.

       Service upon a minor or an incompetent person in a foreign country may be made as prescribed by the
       foreign country’s law for service in that country, as the foreign country directs in response to a letter
       rogatory or letter of request, or pursuant to motion and order of the court by alternative means.




       Service by Alternative Means

       The bill creates s. 48.102, F.S., which allows the court to authorize service via email or other electronic
       means, by a person authorized to serve process or by an attorney, in limited cases where traditional
       methods have been unsuccessful. After the serving party has shown reasonable diligence to locate and
       effectuate personal service of process on a business entity, the court may authorize service in any
       other manner that the party seeking to effectuate service shows will be reasonably effective.

       Service of Notice of Intent to Initiate Litigation for Medical Negligence

       The bill expands the methods by which a claimant may serve notice of intent to initiate medical
       negligence litigation. A claimant may provide such notice by any of the following:
           United States Postal Service (USPS) certified mail, return receipt requested;
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               USPS mail with a tracking number;
               An interstate, commercial mail carrier or delivery service; or,
               A person authorized by law to serve process.

       The bill also specifies that delivery to an address on file with the Department of Health, the Secretary of
       State, or the Agency for Health Care Administration creates a rebuttable presumption that service of the
       presuit notice was made. If the question of proper service is made, the court must conduct an
       evidentiary hearing. If service is challenged it must be challenged in the first response to the complaint.
       If the court determines that service was properly made and the prospective defendant proves by the
       greater weight of the evidence that neither they nor a person legally related to the prospective
       defendant knew or should have known of the service, the court must stay the case for a presuit period
       pursuant to s. 766.106, F.S. In such situation, the statute of limitations and statute of repose are tolled
       from the time service was properly made at the prospective defendant’s address until the conclusion of
       the presuit period.

       Constructive Service by Publication

       The bill amends s. 49.011, F.S., to expand the cases in which service of process by publication is
       permitted. The bill authorizes constructive service by publication in a paternity case upon the legal
       mother when there is no legal father established.

       Service of Process on Unknown Parties in Possession

       The bill creates s. 48.184, F.S., which applies only to actions governed by s. 82.03, s. 83.21, s. 83.59,
       or s. 723.061, F.S., and only to the extent that those actions seek the removal of unknown parties in
       possession of real property. The bill permits a landowner or landlord to serve a summons for the
       removal of persons wrongfully occupying his or her property when such identities are unknown to the
       landowner or landlord. The bill allows a summons to be issued for “Unknown Parties in Possession”
       when filing an eviction or detainer action rather than having to identify the party in question or
       identifying the parties as “John Doe” and “Jane Doe.” The clerk of court is required to issue a summons
       in the name of “Unknown Party in Possession.” The property owner must make three attempts at
       service, one during business hours, one during nonbusiness hours, and one on a weekend. 33 On each
       attempt the process server must inquire as to the name of the unknown occupant. The property owner
       must have a copy of the process mailed by the clerk of court to the unknown party in possession at the
       property address and must post a copy of the process conspicuously on the property. The date of
       service for purposes of calculating the deadline for a defendant to file an answer is the later of the date
       of personal service, the date of posting on the property, or the date the clerk mails the process . If the
       inquiry discovers the name of the unknown person in possession, the person must be named in the
       pleadings. If the name is not known and the legal requirements of eviction are met, the clerk may issue
       a writ of possession against an unknown person and the sheriff may remove any person in the
       property.

       Effective Date

       The bill provides an effective date of January 2, 2023, except for the following two provisions, which are
       effective upon the bill becoming law:
            Section 16, which amends s. 766.106, F.S., service of notice of intent to initiate litigation for
               medical negligence.
            Section 35, which establishes the effective date of the bill.

   B. SECTION DIRECTORY:
           Section 1: Amends s. 15.16, F.S., relating to reproduction of records; admissibility in evidence;
                        electronic receipt and transmission of records; certification; acknowledgement.


33 In general, service of process may not be made on a Sunday. Section 48.20, F.S.
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           Section 2: Amends s. 48.061, F.S., relating to service on partnerships, limited liability partnerships,
                      and limited partnerships.
           Section 3: Amends s. 48.062, F.S., relating to service on a domestic limited liability company or
                      registered foreign limited liability company.
           Section 4: Amends s. 48.071, F.S., relating to service on agents of nonresidents doing business in
                      the state.
           Section 5: Amends s. 48.081, F.S., relating to service on a domestic corporation or registered
                      foreign corporation.
           Section 6: Amends s. 48.091, F.S., relating to partnerships, corporations, and limited liability
                      companies; designation of registered agent and registered office.
           Section 7: Amends s. 48.101, F.S., relating to service on dissolved corporations, dissolved limited
                      liability companies, dissolved limited partnerships, and dissolved limited liability
                      partnerships.
           Section 8: Creates s. 48.102, F.S., relating to service by other means.
           Section 9: Amends s. 48.151, F.S., relating to service on statutory agents for certain persons.
           Section 10: Amends s. 48.161, F.S., relating to method of substituted service on nonresident.
           Section 11: Amends s. 48.181, F.S., relating to substituted service on nonresidents and foreign
                       business entities engaging in business in state or concealing their whereabouts.
           Section 12: Amends s. 48.194, F.S., relating to personal service in another state, territory, or
                       commonwealth of the United States.
           Section 13: Creates s. 48.197, F.S., relating to service in a foreign country.
           Section 14: Amends s. 49.011,F.S., relating to service of process by publication.
           Section 15: Creates s. 48.184, F.S., relating to service of process for removal of unknown parties in
                       possession.
           Section 16: Amends s. 766.106, F.S., relating to notice before filing action for medical negligence;
                       presuit screening period; offers for admission of liability and for arbitration; informal
                       discovery; review.
           Section 17: Amends s. 495.145, F.S., relating to forum for actions regarding registration.
           Section 18: Amends s. 605.0117, F.S., relating to serving process, giving notice, or making a
                       demand.
           Section 19: Amends s. 605.09091, F.S., relating to judicial review of denial reinstatement.
           Section 20: Amends s. 605.0910, F.S., relating to withdrawal and cancellation of certificate of
                       authority.
           Section 21: Amends s. 605.1045, F.S., relating to articles of conversion.
           Section 22: Amends s. 607.0504, F.S., relating to serving process, giving notice, or making a
                       demand on a corporation.
           Section 23: Amends s. 607.1423, F.S., relating to judicial review of denial of reinstatement.


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           Section 24: Amends s. 607.15101, F.S., relating to serving process, giving notice, or making a
                       demand on a foreign corporation.
           Section 25: Amends s. 607.1520, F.S., relating to withdrawal and cancellation of certificate of
                       authority.
           Section 26: Amends s. 617.0504, F.S., relating to serving process, giving notice, or making a
                       demand on a corporation.
           Section 27: Amends s. 617.1510, F.S., relating to serving process, giving notice, or making a
                       demand on a foreign corporation.
           Section 28: Amends s. 617.1520, F.S., relating to withdrawal of foreign corporation.
           Section 29: Amends s. 620.1117, F.S., relating to serving process, giving notice, or making a
                       demand on a limited partnership or a foreign limited partnership.
           Section 30: Amends s. 620.1907, F.S., relating to cancellation of certificate of authority; effect of
                       failure to have certificate.
           Section 31: Amends s. 620.2105, F.S., relating to effect of conversion.
           Section 32: Amends s. 620.2109, F.S., relating to effect of merger.
           Section 33: Amends s. 620.8915, F.S., relating to effect of conversion.
           Section 34: Amends s. 620.8919, F.S., relating to effect of merger.
           Section 35: Provides an effective date of January 2, 2023, for all sections of the bill except two.


                           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 lower litigation costs for plaintiffs and defendants by streamlining service of process and
       authorizing additional methods of service such as electronic service, courier service, or interstate
       delivery services.

   D. FISCAL COMMENTS:
       None.
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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:
           Notice which is “reasonably calculated, under all the circumstances, to apprise interested persons of
           the pendency of an action and afford them an opportunity to present their objections,” is a
           fundamental requirement of due process under the Fourteenth Amendment to the United States
           Constitution.34 Service of process is necessary to satisfy the due process requirement and alert the
           defendant that an action has been commenced against him or her and warn him or her that he or
           she must appear at a certain time and place to offer any defenses he or she may have. 35

           The Real Property, Probate, and Trust Law Section of the Florida Bar (RPPTL) alleges that this
           change will give clear notice to an unknown person occupying a dwelling that an eviction or wrongful
           detainer action has been initiated against them. RPPTL asserts that posting the summons and
           complaint on the property and mailing copies to the address of the unknown occupants is a more
           targeted method of giving unknown occupants constructive notice, and is more likely to provide the
           occupants actual notice of the action than service by publication would. As such, RPPTL argues that
           this proposed form of service on “unknown occupants,” is more likely to withstand constitutional
           scrutiny than publication, which is the only existing alternative.36

           Additionally, RPPTL believes that because an action for possession of property is an in rem or quasi
           in rem proceeding, no personal jurisdiction is required, and the proposed service of process
           procedure for unknown parties should not run afoul of any due process rights. 37

    B. RULE-MAKING AUTHORITY:
        None.

    C. DRAFTING ISSUES OR OTHER COMMENTS:
        None.

                           IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
    On January 13, 2022, the Civil Justice and Property Rights Subcommittee adopted one strike-all
    amendment and reported the bill favorably as a committee substitute. The committee substitute:
           Removes the term social media from the sections on service by alternative means.
           Limits the criteria for due diligence to only apply to service of process on an individual or natural
              person.
           Adds a duty of a foreign corporation to keep an updated email address on file with the Florida
              Secretary of State.



34 Mullane v. Central Hanover  Bank & Trust Co., 339 U.S. 306, 314 (1950).
35 Abbate v. Provident Nat’l Bank , 631 So. 2d 312, 313 (Fla. 5th DCA 1994).
36 Real Estate Leasing Committee of the Real Property, Probate, and Trust Law Section of the Florida Bar, White Paper

on Service of Process on Unk nown Parties in Possession (2022).
37 Id. See McDaniel v. McElvy, 108 So. 820, 830-31 (Fla. 1926); Hinton v. Gold, 813 So. 2d 1057, 1059 (Fla. 4th DCA

2002).
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              Clarifies that a process server delivering a presuit notice of intent to file a medical negligence
               action does not need to be a “certified process server.”
              Clarifies that alternative means of service by email or other technology may be made by any
               person authorized to serve process or by an attorney.
              Requires that, for personal service in another territory or commonwealth of the U.S., a return of
               service form be filed with the court stating the time, manner, and place of service.
              Provides that, in medical negligence litigation cases, when the notice of intent to initiate litigation
               is served by a process server, the statute of limitations is tolled upon the process server’s first
               attempt to serve the prospective defendant and continues during the 90-day period to all
               prospective defendants.
              Clarifies that in the section regarding medical negligence litigation, the terms prospective and
               potential are used interchangeably and have the same meaning.
              In paternity cases, provides for constructive service by publication against a legal mother when
               there is no legal father established.

   This analysis is drafted to the committee substitute as passed by the Civil Justice and Property Rights
   Subcommittee.




STORAGE NAME: h0545b.RRS                                                                                      PAGE: 11
DATE: 1/18/2022
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           CS/HB 545                                                                                            2022




    1                                         A bill to be entitled
    2              An act relating to service of process; amending s.
    3              15.16, F.S.; authorizing the Department of State to
    4              electronically receive service of process under ch.
    5              48, F.S.; amending s. 48.061, F.S.; revising
    6              procedures for service on partnerships, limited
    7              liability partnerships, and limited partnerships;
    8              amending s. 48.062, F.S.; defining the term
    9              "registered foreign limited liability company";
10                 revising procedures for service on a domestic limited
11                 liability company or registered foreign limited
12                 liability company; amending s. 48.071, F.S.; providing
13                 for service on nonresidents doing business in this
14                 state by use of a commercial firm regularly engaged in
15                 the business of document or package delivery; amending
16                 s. 48.081, F.S.; defining the term "registered foreign
17                 corporation"; revising requirements for service on a
18                 domestic corporation or registered foreign
19                 corporation; amending s. 48.091, F.S.; defining terms;
20                 requiring designation of registered agents and
21                 registered offices by certain partnerships,
22                 corporations, and companies; specifying duties of a
23                 registered agent; authorizing a person serving process
24                 to serve certain persons under specified conditions;
25                 amending s. 48.101, F.S.; providing for service on

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        CS/HB 545                                                                                            2022




26              dissolved corporations, dissolved limited liability
27              companies, dissolved limited partnerships, and
28              dissolved limited liability partnerships; creating s.
29              48.102, F.S.; authorizing service by other means in
30              certain circumstances; amending s. 48.151, F.S.;
31              revising the applicability of provisions relating to
32              service on statutory agents for certain persons;
33              amending s. 48.161, F.S.; revising provisions relating
34              to substituted service; providing for substituted
35              service on individuals or corporations or other
36              business entities; specifying actions that may be
37              considered due diligence in effectuating service;
38              specifying when service is considered effectuated;
39              requiring the department to maintain certain records;
40              amending s. 48.181, F.S.; defining the term "foreign
41              business entity"; revising provisions relating to
42              substituted service; providing for substituted service
43              on certain nonresidents and foreign business entities
44              and on individuals and foreign business entities
45              concealing their whereabouts; creating s. 48.184,
46              F.S.; providing for service of process for removal of
47              unknown parties in possession of real property;
48              amending s. 48.194, F.S.; revising provisions relating
49              to service outside this state but within the United
50              States; deleting provisions relating to service

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        CS/HB 545                                                                                            2022




51              outside the United States; amending s. 49.011, F.S.;
52              providing for constructive service on the legal mother
53              in certain situations; creating s. 48.197, F.S.;
54              providing for service in a foreign country; amending
55              s. 766.106, F.S.; revising requirements for service of
56              presuit notice before filing a medical negligence
57              complaint; creating a rebuttable presumption that
58              service was received by a prospective defendant in
59              certain circumstances; providing court duties if
60              service is challenged during subsequent litigation;
61              revising provisions concerning tolling of the statute
62              of limitations upon service of presuit notice by
63              specified means; amending ss. 495.145, 605.0117,
64              605.09091, 605.0910, 605.1045, 607.0504, 607.1423,
65              607.15101, 607.1520, 617.0504, 617.1510, 617.1520,
66              620.1117, 620.1907, 620.2105, 620.2109, 620.8915, and
67              620.8919, F.S.; conforming cross-references and
68              provisions to changes made by the act; providing
69              effective dates.
70
71      Be It Enacted by the Legislature of the State of Florida:
72
73              Section 1.         Subsection (3) of section 15.16, Florida
74      Statutes, is amended to read:
75              15.16       Reproduction of records; admissibility in evidence;

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         CS/HB 545                                                                                            2022




 76      electronic receipt and transmission of records; certification;
 77      acknowledgment.—
 78              (3)         The Department of State may cause to be received
 79      electronically any records that are required or authorized to be
 80      filed with it pursuant to chapter 48, chapter 55, chapter 117,
 81      chapter 118, chapter 495, chapter 605, chapter 606, chapter 607,
 82      chapter 610, chapter 617, chapter 620, chapter 621, chapter 679,
 83      chapter 713, or chapter 865, through facsimile or other
 84      electronic transfers, for the purpose of filing such records.
 85      The originals of all such electronically transmitted records
 86      must be executed in the manner provided in paragraph (5)(b). The
 87      receipt of such electronic transfer constitutes delivery to the
 88      department as required by law. The department may use electronic
 89      transmissions for purposes of notice in the administration of
 90      chapters 48, 55, 117, 118, 495, 605, 606, 607, 610, 617, 620,
 91      621, 679, and 713 and s. 865.09. The Department of State may
 92      collect e-mail addresses for purposes of notice and
 93      communication in the performance of its duties and may require
 94      filers and registrants to furnish such e-mail addresses when
 95      presenting documents for filing.
 96              Section 2.         Section 48.061, Florida Statutes, is amended to
 97      read:
 98              48.061        Service on partnerships, limited liability
 99      partnerships, and limited partnerships.—
100              (1)(a)        Process against a partnership that is not a limited

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         CS/HB 545                                                                                            2022




101      liability partnership or a limited partnership, including a
102      limited liability limited partnership, must shall be served on
103      any partner and is as valid for service on the partnership as if
104      served on each individual partner.
105              1.      If a partner is not available during regular business
106      hours to accept service on behalf of the partnership, he or she
107      may designate an employee or agent to accept such service.
108              2.      After one attempt to serve a partner or designated
109      employee or agent for service of process has been made, process
110      may be served on a person in charge of the partnership during
111      regular business hours.
112              (b)         If the partnership designated an agent when
113      registering as a general partnership with the Department of
114      State, service on the agent is as valid for service on the
115      partnership as if served on each individual partner; however,
116      unless individual partners are served, the plaintiff may only
117      proceed to judgment and execution against the assets of the
118      partnership.
119              (2)(a)        Process against a domestic limited liability
120      partnership must first be served on the then-current registered
121      agent for service of process specified in its statement of
122      qualification, in its statement of qualification as amended or
123      restated, or as redesignated in its annual report or change of
124      agent filing and is as valid for service on the limited
125      liability partnership as if served on each individual partner.

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         CS/HB 545                                                                                            2022




126      If service cannot be made on the registered agent because the
127      domestic limited liability partnership ceases to have a
128      registered agent, or if the registered agent cannot otherwise be
129      served after one good faith attempt because of a failure to
130      comply with this chapter or chapter 620, the process may be
131      served on any partner.
132              1.      If a partner is not available during regular business
133      hours to accept service on behalf of the partnership, he or she
134      may designate an employee to accept such service.
135              2.      After one attempt to serve a partner or designated
136      employee has been made, process may be served on a person in
137      charge of the partnership during regular business hours.
138              (b)         If, after due diligence, the process cannot be
139      completed under paragraph (a), the process may be served as
140      provided in s. 48.161 on the Secretary of State as an agent of
141      the domestic limited liability partnership or by order of the
142      court under s. 48.102.
143              (3)(a)1.           Process against a domestic limited partnership,
144      including a domestic limited liability limited partnership, must
145      first be served on the then-current agent for service of process
146      specified in its certificate of limited partnership, in its
147      certificate as amended or restated, or as redesignated in its
148      annual report or change of agent filing and is as valid for
149      service on the domestic limited partnership as if served on each
150      individual general partner of the partnership.

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         CS/HB 545                                                                                            2022




151              2.      If service cannot be made on the registered agent
152      because the domestic limited partnership or domestic limited
153      liability limited partnership ceases to have a registered agent,
154      or if the registered agent cannot otherwise be served following
155      one good faith attempt because of a failure to comply with this
156      chapter or chapter 620, the process may be served on any general
157      partner.
158              3.      After service on a general partner or the registered
159      agent, the plaintiff may proceed to judgment and execution
160      against the assets of the domestic limited partnership or of
161      that general partner, unless the domestic limited partnership is
162      a limited liability limited partnership.
163              (b)         If, after due diligence, the process cannot be
164      completed under paragraph (a), then process may be served as
165      provided in s. 48.161 on the Secretary of State as an agent of
166      the limited partnership or by order of the court under s.
167      48.102.
168              (4)(a)        Process against a foreign limited liability
169      partnership that was required to comply with s. 620.9102 may be
170      served as prescribed under subsection (2).
171              (b)         A foreign limited liability partnership engaging in
172      business in this state but not registered is considered, for
173      purposes of service of process, a nonresident engaging in
174      business in this state and may be served pursuant to s. 48.181
175      or by order of the court under s. 48.102.

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         CS/HB 545                                                                                            2022




176              (5)(a)        Process against a foreign limited partnership that
177      was required to comply with s. 620.1902 may be served as
178      prescribed under subsection (3).
179              (b)         A foreign limited partnership engaging in business in
180      this state but not registered is considered, for purposes of
181      service of process, a nonresident engaging in business in this
182      state and may be served pursuant to s. 48.181 or by order of the
183      court under s. 48.102 After one attempt to serve a partner or
184      designated employee has been made, process may be served on the
185      person in charge of the partnership during regular business
186      hours. After service on any partner, plaintiff may proceed to
187      judgment and execution against that partner and the assets of
188      the partnership. After service on a designated employee or other
189      person in charge, plaintiff may proceed to judgment and
190      execution against the partnership assets but not against the
191      individual assets of any partner.
192              (2)         Process against a domestic limited partnership may be
193      served on any general partner or on the agent for service of
194      process specified in its certificate of limited partnership or
195      in its certificate as amended or restated and is as valid as if
196      served on each individual member of the partnership. After
197      service on a general partner or the agent, the plaintiff may
198      proceed to judgment and execution against the limited
199      partnership and all of the general partners individually. If a
200      general partner cannot be found in this state and service cannot

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         CS/HB 545                                                                                            2022




201      be made on an agent because of failure to maintain such an agent
202      or because the agent cannot be found or served with the exercise
203      of reasonable diligence, service of process may be effected by
204      service upon the Secretary of State as agent of the limited
205      partnership as provided for in s. 48.181. Service of process may
206      be made under ss. 48.071 and 48.21 on limited partnerships.
207              (3)         Process against a foreign limited partnership may be
208      served on any general partner found in the state or on any agent
209      for service of process specified in its application for
210      registration and is as valid as if served on each individual
211      member of the partnership. If a general partner cannot be found
212      in this state and an agent for service of process has not been
213      appointed or, if appointed, the agent's authority has been
214      revoked or the agent cannot be found or served with the exercise
215      of reasonable diligence, service of process may be effected by
216      service upon the Secretary of State as agent of the limited
217      partnership as provided for in s. 48.181, or process may be
218      served as provided in ss. 48.071 and 48.21.
219              Section 3.         Section 48.062, Florida Statutes, is amended to
220      read:
221              48.062        Service on a domestic limited liability company or
222      registered foreign limited liability company.—
223              (1)         As used in this section, the term "registered foreign
224      limited liability company" means a foreign limited liability
225      company that has an active certificate of authority to transact

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         CS/HB 545                                                                                            2022




226      business in this state pursuant to a record filed with the
227      Department of State.
228              (2)         Process against A domestic limited liability company,
229      domestic or registered foreign limited liability company, may be
230      served with process required or authorized by law by service on
231      its the registered agent designated by the domestic limited
232      liability company or registered foreign limited liability
233      company under chapter 605. A person attempting to serve process
234      pursuant to this subsection may serve the process on any
235      employee of the registered agent during the first attempt at
236      service even if the registered agent is a natural person and is
237      temporarily absent from his or her office.
238              (3)(2)        If service cannot be made on a registered agent of
239      the domestic limited liability company or registered foreign
240      limited liability company because the domestic limited liability
241      company or registered foreign limited liability company ceases
242      to have a registered agent, or if the registered agent of the
243      domestic limited liability company or registered foreign limited
244      liability company cannot otherwise be served after one good
245      faith attempt because of a failure to comply with this chapter
246      or chapter 605 or because the limited liability company does not
247      have a registered agent, or if its registered agent cannot with
248      reasonable diligence be served, process against the limited
249      liability company, domestic or foreign, the process may be
250      served on any of the following:

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         CS/HB 545                                                                                            2022




251              (a)         Any manager of a manager-managed domestic limited
252      liability company or registered foreign limited liability
253      company. On a member of a member-managed limited liability
254      company;
255              (b)         Any member of a member-managed domestic limited
256      liability company or registered foreign limited liability
257      company. On a manager of a manager-managed limited liability
258      company; or
259              (c)         Any person listed publicly by the domestic limited
260      liability company or registered foreign limited lia bility
261      company on its latest annual report, as most recently amended If
262      a member or manager is not available during regular business
263      hours to accept service on behalf of the limited liability
264      company, he, she, or it may designate an employee of the limited
265      liability company to accept such service. After one attempt to
266      serve a member, manager, or designated employee has been made,
267      process may be served on the person in charge of the limited
268      liability company during regular business hours.
269              (4)(3)        If, after due reasonable diligence, the service of
270      process cannot be completed under subsection (2) and if either:
271              (a)         The only person listed publicly by the domestic
272      limited liability company or registered foreign limited
273      liability company on its latest annual report, as most recently
274      amended, is also the registered agent on whom service was
275      attempted under subsection (2); or

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         CS/HB 545                                                                                            2022




276              (b)         After due diligence, service was attempted on at least
277      one person listed publicly by the domestic limited liability
278      company or registered foreign limited liability company on its
279      latest annual report, as most recently amended, and cannot be
280      completed on such person under subsection (3) (1) or subsection
281      (2),
282
283      the service of process may be served as provided in s. 48.161 on
284      effected by service upon the Secretary of State as an agent of
285      the domestic limited liability company or the registered foreign
286      limited liability company or by order of the court under s.
287      48.102 as provided for in s. 48.181.
288              (5)(4)        If the address for the registered agent or any
289      person listed publicly by the domestic limited liability company
290      or registered foreign limited liability company on its latest
291      annual report, as most recently amended, has an address that
292      member, or manager is a residence, a private mailbox, a virtual
293      office, or an executive office or mini suite, service on the
294      domestic limited liability company or registered foreign limited
295      liability company may be made by serving any of the following:
296              (a)         The registered agent of the domestic limited liability
297      company or registered foreign limited liability company, in
298      accordance with s. 48.031.
299              (b)         Any person listed publicly by the domestic limited
300      liability company or registered foreign limited liability

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         CS/HB 545                                                                                            2022




301      company on its latest annual report, as most recently amended,
302      in accordance with s. 48.031.
303              (c)         Any, member, or manager of the domestic limited
304      liability company or registered foreign limited liability
305      company, in accordance with s. 48.031.
306              (6)         A foreign limited liability company engaging in
307      business in this state which is not registered is considered,
308      for purposes of service of process, a nonresident engaging in
309      business in this state and may be served pursuant to s. 48.181
310      or by order of the court under s. 48.102.
311              (7)(5)        This section does not apply to service of process
312      on insurance companies.
313              Section 4.         Section 48.071, Florida Statutes, is amended to
314      read:
315              48.071        Service on agents of nonresidents doing business in
316      the state.—When any natural person or partnership not residing
317      or having a principal place of business in this state engages in
318      business in this state, process may be served on the person who
319      is in charge of any business in which the defendant is engaged
320      within this state at the time of service, including agents
321      soliciting orders for goods, wares, merchandise, or services.
322      Any process so served is as valid as if served personally on the
323      nonresident person or partnership engaging in business in this
324      state in any action against the person or partnership aris ing
325      out of such business. A copy of such process with a notice of

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         CS/HB 545                                                                                            2022




326      service on the person in charge of such business must shall be
327      sent forthwith to the nonresident person or partnership by
328      registered mail; by or certified mail, return receipt requested;
329      or by use of a commercial firm regularly engaged in the business
330      of document or package delivery. The party seeking to effectuate
331      service, or the attorney for such party, shall prepare. an
332      affidavit of compliance with this section which must shall be
333      filed before the return day or within such further time as the
334      court may allow.
335              Section 5.         Section 48.081, Florida Statutes, is amended to
336      read:
337              48.081        Service on a domestic corporation or registered
338      foreign corporation.—
339              (1)         As used in this section, the term "registered foreign
340      corporation" means a foreign corporation that has an active
341      certificate of authority to transact business in this state
342      pursuant to a record filed with the Department of State.
343              (2)         A domestic corporation or a registered foreign
344      corporation may be served with process required or authorized by
345      law by service on its registered agent designated by the
346      corporation under chapter 607 or chapter 617, as applicable.
347              (3)         If service cannot be made on a registered agent of the
348      domestic corporation or registered foreign corporation because
349      the domestic corporation or registered foreign corporation
350      ceases to have a registered agent, or if the registered agent of

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         CS/HB 545                                                                                            2022




351      the domestic corporation or registered foreign corporation
352      cannot otherwise be served after one good faith attempt because
353      of a failure to comply with this chapter, chapter 607, or
354      chapter 617, as applicable, the process may be served on either
355      of the following Process against any private corporation,
356      domestic or foreign, may be served:
357              (a)         The chair of the board of directors, On the president,
358      any or vice president, the secretary, or the treasurer or other
359      head of the domestic corporation or registered foreign
360      corporation.;
361              (b)         Any person listed publicly by the domestic corporation
362      or registered foreign corporation on its latest annual report,
363      as most recently amended In the absence of any person described
364      in paragraph (a), on the cashier, treasurer, secretary, or
365      general manager;
366              (c)         In the absence of any person described in paragr aph
367      (a) or paragraph (b), on any director; or
368              (d)         In the absence of any person described in paragraph
369      (a), paragraph (b), or paragraph (c), on any officer or business
370      agent residing in the state.
371              (4)         If, after due diligence, the process cannot be
372      completed under subsection (2) and if either:
373              (a)         The only person listed publicly by the domestic
374      corporation or registered foreign corporation on its latest
375      annual report, as most recently amended, is also the registered

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         CS/HB 545                                                                                            2022




376      agent on whom service was attempted under subsection (2); or
377              (b)         After due diligence, service was attempted on at least
378      one person listed publicly by the domestic corporation or
379      registered foreign corporation on its latest annual report, as
380      most recently amended, and cannot be completed on such person
381      under subsection (3),
382
383      the process may be served as provided in s. 48.161 on the
384      Secretary of State as an agent of the domestic corporation or
385      registered foreign corporation or by order of the court under s.
386      48.102
387              (2)         If a foreign corporation has none of the foregoing
388      officers or agents in this state, service may be made on any
389      agent transacting business for it in this state.
390              (3)(a)        As an alternative to all of the foregoing, process
391      may be served on the agent designated by the corporation u nder
392      s. 48.091. However, if service cannot be made on a registered
393      agent because of failure to comply with s. 48.091, service of
394      process shall be permitted on any employee at the corporation's
395      principal place of business or on any employee of the registere d
396      agent. A person attempting to serve process pursuant to this
397      paragraph may serve the process on any employee of the
398      registered agent during the first attempt at service even if the
399      registered agent is temporarily absent from his or her office.
400              (5)(b)        If the address for the registered agent or any

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         CS/HB 545                                                                                            2022




401      person listed publicly by the domestic corporation or registered
402      foreign corporation on its latest annual report, as most
403      recently amended, has an address that officer, director, or
404      principal place of business is a residence, a private mailbox, a
405      virtual office, or an executive office or mini suite, service on
406      the domestic corporation or registered foreign corporation may
407      be made by serving any of the following:
408              (a)         The registered agent of the domestic corporation or
409      registered foreign corporation, officer, or director in
410      accordance with s. 48.031.
411              (b)         Any person listed publicly by the domestic corporation
412      or registered foreign corporation on its latest annual report,
413      as most recently amended, in accordance with s. 48.031.
414              (c)         Any person serving in one of the positions specified
415      in paragraph (3)(a), in accordance with s. 48.031.
416              (6)         A foreign corporation engaging in business in this
417      state which is not registered is considered, for purposes of
418      service of process, a nonresident engaging in business in this
419      state and may be served pursuant to s. 48.181 or by order of the
420      court under s. 48.102.
421              (7)(4)        This section does not apply to service of process
422      on insurance companies.
423              (5)         When a corporation engages in substantial and not
424      isolated activities within this state, or has a business office
425      within the state and is actually engaged in the transaction of

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         CS/HB 545                                                                                            2022




426      business therefrom, service upon any officer or business agent
427      while on corporate business within this state may personally be
428      made, pursuant to this section, and it is not necessary in such
429      case that the action, suit, or proceeding against the
430      corporation shall have arisen out of any transaction or
431      operation connected with or incidental to the business being
432      transacted within the state.
433              Section 6.         Section 48.091, Florida Statutes, is amended to
434      read:
435              48.091        Partnerships, corporations, and limited liability
436      companies; designation of registered agent and registered
437      office.—
438              (1)         As used in this section, the term:
439              (a)         "Registered foreign corporation" and "registered
440      foreign limited liability company" have the same meanings as in
441      ss. 48.081 and 48.062, respectively.
442              (b)         "Registered foreign limited liability partnership" or
443      "registered foreign limited partnership" means a foreign limited
444      liability partnership or foreign limited partnership that has an
445      active certificate of authority to transact business in this
446      state pursuant to a record filed with the Department of State.
447              (2)         Every domestic limited liability partnership; domestic
448      limited partnership, including limited liability limited
449      partnerships; domestic corporation; domestic limited liability
450      company; registered foreign limited liability partnership;

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         CS/HB 545                                                                                            2022




451      registered foreign limited partnership, including limited
452      liability limited partnerships; registered foreign corporation;
453      and registered foreign limited liability company Florida
454      corporation and every foreign corporation now qualified or
455      hereafter qualifying to transact business in this state shall
456      designate a registered agent and registered office in accordance
457      with chapter 605, part I of chapter 607, chapter 617, or chapter
458      620, as applicable.
459              (3)(2)       Every domestic limited liability partnership;
460      domestic limited partnership, including limited liabi lity
461      limited partnerships; domestic corporation; domestic limited
462      liability company; registered foreign limited liability
463      partnership; registered foreign limited partnership, including
464      limited liability limited partnerships; registered foreign
465      corporation; registered foreign limited liability company; and
466      domestic or foreign general partnership that elects to designate
467      a registered agent shall cause the designated registered agent
468      to corporation shall keep the designated registered office open
469      from at least 10 a.m. to 12 noon each day except Saturdays,
470      Sundays, and legal holidays, and shall cause the designated
471      registered agent to keep one or more individuals who are, or are
472      representatives of, the designated registered agents on whom
473      process may be served at the office during these hours. The
474      corporation shall keep a sign posted in the office in some
475      conspicuous place designating the name of the corporation and

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476      the name of its registered agent on whom process may be served
477      at the office during these hours.
478              (4)         A person attempting to serve process pursuant to this
479      section on a registered agent that is other than a natural
480      person may serve the process on any employee of the registered
481      agent. A person attempting to serve process pursuant to this
482      section on a natural person, if the natural person is
483      temporarily absent from his or her office, may serve the process
484      during the first attempt at service on any employee of such
485      natural person.
486              (5)         The registered agent shall promptly forward copies of
487      the process and any other papers received in connection with the
488      service to a responsible person in charge of the business
489      entity. Failure to comply with this subsection does not
490      invalidate the service of process.
491              Section 7.         Section 48.101, Florida Statutes, is amended to
492      read:
493              48.101        Service on dissolved corporations, dissolved
494      limited liability companies, dissolved limited partnerships, and
495      dissolved limited liability partnerships.—
496              (1)         Process against the directors of any corporation that
497      which was dissolved before July 1, 1990, as trustees of the
498      dissolved corporation must shall be served on one or more of the
499      directors of the dissolved corporation as trustees thereof and
500      binds all of the directors of the dissolved corporation as

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         CS/HB 545                                                                                            2022




501      trustees thereof. Process against any other dissolved
502      corporation shall be served in accordance with s. 48.081.
503              (2)(a)        Process against any other dissolved domestic
504      corporation must be served in accordance with s. 48.081.
505              (b)         In addition, provided that service was first properly
506      attempted on the registered agent pursuant to s. 48.081(2), but
507      was not successful, service may then be attempted as required
508      under s. 48.081(3). In addition to the persons listed in s.
509      48.081(3), service may then be attempted on the person appointed
510      by the circuit court as the trustee, custodian, or receiver
511      under s. 607.1405(6).
512              (c)         A party attempting to serve a dissolved domestic for-
513      profit corporation under this section may petition the court to
514      appoint one of the persons specified in s. 607.1405(6) to
515      receive service of process on behalf of the corporation.
516              (3)(a)        Process against any dissolved domestic limited
517      liability company must be served in accordance with s. 48.062.
518              (b)         In addition, provided that service was first properly
519      attempted on the registered agent pursuant to s. 48.062(2), but
520      was not successful, service may then be attempted as required
521      under s. 48.062(3). In addition to the persons listed in s.
522      48.062(3), service on a dissolved domestic limited liability
523      company may be made on the person appointed as the liquidator,
524      trustee, or receiver under s. 605.0709.
525              (c)         A party attempting to serve a dissolved domestic

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526      limited liability company under this section may petition the
527      court to appoint one of the persons specified in s. 605.0709(5)
528      to receive service of process on behalf of the limited liability
529      company.
530              (4)         Process against any dissolved domestic limited
531      partnership must be served in accordance with s. 48.061.
532              Section 8.         Section 48.102, Florida Statutes, is created to
533      read:
534              48.102        Service by other means.—If, after due diligence, a
535      party seeking to effectuate service is unable to effectuate
536      personal service of process on a domestic or foreign
537      corporation; a domestic or foreign general partnership,
538      including a limited liability partnership; a domestic or foreign
539      limited partnership, including a limited liability limited
540      partnership; or a domestic or foreign limited liability company,
541      the court, upon motion and a showing of such inability, may
542      authorize service in any other manner that the party seeking to
543      effectuate service shows will be reasonably effective to give
544      the entity on which service is sought to be effectuated actual
545      notice of the suit. Such other manners of service may include
546      service electronically by e-mail or other technology, by any
547      person authorized to serve process in accordance with this
548      chapter, or by an attorney.
549              Section 9.         Subsection (2) of section 48.151, Florida
550      Statutes, is amended to read:

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         CS/HB 545                                                                                            2022




551              48.151        Service on statutory agents for certain persons. —
552              (2)         This section does not apply to substituted service of
553      process under s. 48.161 or s. 48.181 on nonresidents.
554              Section 10.            Section 48.161, Florida Statutes, is amended
555      to read:
556              48.161        Method of substituted service on nonresident. —
557              (1)         When authorized by law, substituted service of process
558      on a nonresident individual or a corporation or other business
559      entity incorporated or formed under the laws of any other state,
560      territory, or commonwealth, or the laws of any foreign country,
561      may or a person who conceals his or her whereabouts by serving a
562      public officer designated by law shall be made by sending
563      leaving a copy of the process to the office of the Secretary of
564      State by personal delivery; by registered mail; with a fee of
565      $8.75 with the public officer or in his or her office or by
566      mailing the copies by certified mail, return receipt requested;
567      by use of a commercial firm regularly engaged in the business of
568      document or package delivery; or by electronic transmission to
569      the public officer with the fee. The service is sufficient
570      service on a party that defendant who has appointed or is deemed
571      to have appointed the Secretary of State a public officer as
572      such party's his or her agent for the service of process. The
573      Secretary of State shall keep a record of all process served on
574      the Secretary of State showing the day and hour of service.
575              (2)         Notice of service and a copy of the process must shall

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576      be sent forthwith by the party effectuating service or by such
577      party's attorney by registered mail; by registered or certified
578      mail, return receipt requested; or by use of a commercial firm
579      regularly engaged in the business of document or package
580      delivery. In addition, if the parties have recently and
581      regularly used e-mail or other electronic means to communicate
582      between themselves, the notice of service and a copy of the
583      process must be sent by such electronic means or, if the party
584      is being served by substituted service, the notice of service
585      and a copy of the process must be served at such party's last
586      known physical address and, if applicable, last known electronic
587      address. The party effectuating service shall file proof of
588      service or return receipts showing delivery to the other party
589      by mail or courier and by electronic means, if electronic means
590      were used, unless the party is actively refusing or rejecting
591      the delivery of the notice. An by the plaintiff or his or her
592      attorney to the defendant, and the defendant's return receipt
593      and the affidavit of compliance of the party effectuating
594      service plaintiff or such party's his or her attorney must of
595      compliance shall be filed within 40 days after on or before the
596      date return day of service on the Secretary of State process or
597      within such additional time as the court allows. The affidavit
598      of compliance must set forth the facts that justify substituted
599      service under this section and that show due diligence was
600      exercised in attempting to locate and effectuate personal

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601      service on the party before using substituted service under this
602      section. The party effectuating service does not need to allege
603      in its original or amended complaint the facts required to be
604      set forth in the affidavit of compliance.
605              (3)         When an individual or a business entity conceals its
606      whereabouts, the party seeking to effectuate service, after
607      exercising due diligence to locate and effectuate personal
608      service, may use substituted service pursuant to subsection (1)
609      in connection with any action in which the court has
610      jurisdiction over such individual or business entity. The party
611      seeking to effectuate service must also comply with subsection
612      (2); however, a return receipt or other proof showing acceptance
613      of receipt of the notice of service and a, or the notice and
614      copy of the shall be served on the defendant, if found within
615      the state, by an officer authorized to serve legal process by
616      the concealed party need not be filed, or if found without the
617      state, by a sheriff or a deputy sheriff of any county of this
618      state or any duly constituted public officer qualifie d to serve
619      like process in the state or jurisdiction where the defendant is
620      found. The officer's return showing service shall be filed on or
621      before the return day of the process or within such time as the
622      court allows. The fee paid by the plaintiff to the public
623      officer shall be taxed as cost if he or she prevails in the
624      action. The public officer shall keep a record of all process
625      served on him or her showing the day and hour of service .

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626              (4)(a)        The party effectuating service is considered to
627      have used due diligence if that party:
628              1.      Made diligent inquiry and exerted an honest and
629      conscientious effort appropriate to the circumstances to acquire
630      the information necessary to effectuate personal service;
631              2.      In seeking to effectuate personal service, reasonably
632      employed the knowledge at the party's command, including
633      knowledge obtained pursuant to subparagraph 1.; and
634              3.      Made an appropriate number of attempts to serve the
635      party, taking into account the particular circumstances.
636              (b)         In making the determination as to whether the party
637      effectuating service of process on any party who is a natural
638      person used due diligence, there is a rebuttable presumption
639      that the serving party exercised due diligence by making three
640      good faith attempts to serve the other party during such times
641      when and such locations where such party is reasonably likely to
642      be found, as determined through resources reasonably available
643      to the party seeking to secure service of process.
644              (5)(2)        If any individual person on whom service of process
645      is authorized under subsection (1) dies, service may be made in
646      the same manner on his or her administrator, executor, curator,
647      or personal representative in the same manner.
648              (6)(4)        The Secretary of State public officer may designate
649      an individual some other person in his or her office to accept
650      service.

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         CS/HB 545                                                                                            2022




651              (7)         Service of process is effectuated under this section
652      on the date the service is received by the Department of State.
653              (8)         The Department of State shall maintain a record of
654      each process served pursuant to this section and record the time
655      of and the action taken regarding the service.
656              (9)(3)        This section does not apply to persons on whom
657      service is authorized under s. 48.151.
658              Section 11.            Section 48.181, Florida Statutes, is amend ed
659      to read:
660              48.181        Substituted service on nonresidents and foreign
661      business entities nonresident engaging in business in state or
662      concealing their whereabouts.—
663              (1)         As used in this section, the term "foreign business
664      entity" means any corporation or other business entity that is
665      incorporated, formed, or existing under the laws of any other
666      state, territory, or commonwealth, or the laws of any foreign
667      country.
668              (2)         The acceptance by any individual person or persons,
669      individually or associated together as a copartnership or any
670      other form or type of association, who is a resident are
671      residents of any other state, territory, or commonwealth, or of
672      any foreign or country, or by any foreign business entity and
673      all foreign corporations, and any person who is a resident of
674      the state and who subsequently becomes a nonresident of the
675      state or conceals his or her whereabouts, of the privilege

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         CS/HB 545                                                                                            2022




676      extended by law to nonresidents and others to operate, conduct,
677      engage in, or carry on a business or business venture in this
678      the state, or to have an office or agency in this the state, is
679      deemed to constitute constitutes an appointment by the
680      individual or persons and foreign business entity corporations
681      of the Secretary of State of this the state as its their agent
682      on whom all process in any action or proceeding against the
683      individual or foreign business entity them, or any combination
684      thereof of them, arising out of any transaction or operation
685      connected with or incidental to the business or business venture
686      may be served as substituted service in accordance with this
687      chapter. The acceptance of the privilege is signification of the
688      agreement of the respective individual or persons and foreign
689      business entity corporations that the process served against it
690      in accordance with this chapter them which is so served is of
691      the same validity as if served personally on the individual
692      persons or foreign business entity corporations.
693              (3)(2)       If a foreign business entity corporation has
694      registered to do business a resident agent or officer in this
695      the state and has maintained its registration in an active
696      status or otherwise continued to have a registered agent ,
697      personal service of process must first shall be attempted served
698      on the foreign business entity in the manner and order of
699      priority described in this chapter as applicable to the foreign
700      business entity. If, after due diligence, the party seeking to

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         CS/HB 545                                                                                            2022




701      effectuate service of process is unable to effectuate service of
702      process on the registered agent or other official as provided in
703      this chapter, the party may use substituted service of process
704      on the Secretary of State resident agent or officer.
705              (4)         Any individual or foreign business entity that
706      conceals its whereabouts is deemed to have appointed the
707      Secretary of State as its agent on whom all process may be
708      served in any action or proceeding against it, or any
709      combination thereof, arising out of any transaction or operation
710      connected with or incidental to any business or business venture
711      carried on in this state by such individual or foreign business
712      entity.
713              (5)(3)        Any individual or foreign business entity that
714      person, firm, or corporation which sells, consigns, or leases by
715      any means whatsoever tangible or intangible personal property,
716      through brokers, jobbers, wholesalers, or distributors to any
717      individual person, firm, or corporation, or other business
718      entity in this state is conclusively presumed to be both engaged
719      in substantial and not isolated activities within this state and
720      operating, conducting, engaging in, or carrying on a business or
721      business venture in this state.
722              (6)         Service pursuant to this section must be effectuated
723      in the manner prescribed by s. 48.161.
724              Section 12.            Section 48.184, Florida Statutes, is created
725      to read:

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         CS/HB 545                                                                                            2022




726              48.184        Service of process for removal of unknown parties
727      in possession.—
728              (1)         This section applies only to actions governed by s.
729      82.03, s. 83.21, s. 83.59, or s. 723.061 and only to the extent
730      that such actions seek relief for the removal of unknown parties
731      in possession of real property. The provisions of this section
732      are cumulative to other provisions of law or rules of court
733      about service of process, and all other such provisions are
734      cumulative to this section.
735              (2)         A summons must be issued in the name of "Unknown Party
736      in Possession" when the name of an occupant of real property is
737      not known to the plaintiff and the property occupied by the
738      unknown party is identified in the complaint and summons. A
739      separate summons must be issued for each such unknown occupant.
740              (3)         The plaintiff shall attempt to serve the summons on
741      any unknown occupant of the property described in the summons
742      and complaint. If service on the unknown occupant is not
743      effectuated on the first attempt, at least two additional
744      attempts must be made. The three attempts to obtain service must
745      be made once during business hours, once during nonbusiness
746      hours, and once during a weekend. The process server shall make
747      an inquiry as to the name of the unknown occupant at the time of
748      service. The return of service must note the name of the
749      occupant if obtained by the process server or state that the
750      name of the occupant could not be obtained after inquiry. If the

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         CS/HB 545                                                                                            2022




751      name of the occupant becomes known to the plaintiff through the
752      return of service or otherwise, without notice or hearing
753      thereon, all subsequent proceedings must be conducted under the
754      true name of such occupant and all prior proceedings are deemed
755      amended accordingly.
756              (4)         Service of process must also be made on unknown
757      occupants by both of the following means:
758              (a)         By attaching the summons and complaint to a
759      conspicuous location on the premises involved in the
760      proceedings.
761              (b)         Upon issuance of the summons, by the plaintiff
762      providing the clerk of the court with one additional copy of the
763      summons and complaint for each unknown occupant and a prestamped
764      envelope for each unknown occupant addressed to the unknown
765      occupant at the address of the premises involved in the
766      proceedings. The clerk of the court shall immediately m ail a
767      copy of the summons and complaint by first-class mail, note the
768      fact of mailing in the docket, and file a certificate in the
769      court file of the fact and date of mailing. The clerk of the
770      court shall charge such fees for such services as provided by
771      law.
772              (5)         Service is effective on the unknown occupant in
773      possession on the later of the date that personal service is
774      made, the date of attaching the summons and complaint to a
775      conspicuous location on the premises, or upon mailing by the

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         CS/HB 545                                                                                            2022




776      clerk.
777              (6)         The judgment and writ of possession must refer to any
778      unknown occupant in possession by name if the name is shown on
779      the return of service or is otherwise known to the plaintiff. If
780      the name of any unknown occupant in possession is not shown on
781      the return of service or otherwise known to the plaintiff and
782      service has been effectuated as provided in this section, the
783      judgment and writ of possession must refer to each such person
784      as "Unknown Party in Possession," and the writ of possession
785      must be executed by the sheriff by dispossessing the occupants
786      and placing the plaintiff in possession of the property.
787              Section 13.            Subsections (1) and (2) of section 48.194,
788      Florida Statutes, are amended to read:
789              48.194        Personal service in another outside state,
790      territory, or commonwealth of the United States.—
791              (1)         Except as otherwise provided herein, service of
792      process on a party in another persons outside of this state,
793      territory, or commonwealth of the United States must shall be
794      made in the same manner as service within this state by any
795      person authorized to serve process in the state where service
796      shall be made the person is served. No order of court is
797      required. A court may consider the return-of-service form
798      described in s. 48.21, or any other competent evidence, shall be
799      filed with the court stating the time, manner, and place of
800      service. The court may consider such evidence in determining

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         CS/HB 545                                                                                            2022




801      whether service has been properly made. Service of process on
802      persons outside the United States may be required to conform to
803      the provisions of the Hague Convention on the Service Abroad of
804      Judicial and Extrajudicial Documents in Civil or Commercial
805      Matters.
806              (2)         When Where in rem or quasi in rem relief is sought in
807      a foreclosure proceeding as defined by s. 702.09, and the
808      address of the person to be served is known, service of process
809      on a person in another state, territory, or commonwealth outside
810      of the United States this state where the address of the person
811      to be served is known may be made by registered mail as follows:
812              (a)         The party's attorney or the party, if the party is not
813      represented by an attorney, shall place a copy of the original
814      process and the complaint, petition, or other initial pleading
815      or paper and, if applicable, the order to show cause issued
816      pursuant to s. 702.10 in a sealed envelope with adequate postage
817      addressed to the person to be served.
818              (b)         The envelope must shall be placed in the mail as
819      registered mail.
820              (c)         Service under this subsection is deemed shall be
821      considered obtained upon the signing of the return receipt by
822      the person allowed to be served by law.
823              Section 14.            Subsection (15) of section 49.011, Florida
824      Statutes, is amended to read:
825              49.011        Service of process by publication; cases in which

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         CS/HB 545                                                                                            2022




826      allowed.—Service of process by publication may be made in any
827      court on any party identified in s. 49.021 in any action or
828      proceeding:
829              (15)        To determine paternity, but only as to:
830              (a)         The legal father in a paternity action in which
831      another man is alleged to be the biological father, in which
832      case it is necessary to serve process on the legal father in
833      order to establish paternity with regard to the alleged
834      biological father; or
835              (b)         The legal mother when there is no legal father .
836              Section 15.            Section 48.197, Florida Statutes, is created
837      to read:
838              48.197        Service in a foreign country.—
839              (1)         Service of process may be effectuated in a foreign
840      country upon a party, other than a minor or an incompetent
841      person, as provided in any of the following:
842              (a)         By any internationally agreed-upon means of service
843      reasonably calculated to give actual notice of the proceedings,
844      such as those authorized by the Hague Convention on the Service
845      Abroad of Judicial and Extrajudicial Documents in Civil or
846      Commercial Matters.
847              (b)         If there is no internationally agreed-upon means of
848      service, or if an international agreement allows but does not
849      specify other means, by a method reasonably calculated to give
850      actual notice of the proceedings:

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         CS/HB 545                                                                                            2022




851              1.      As prescribed by the foreign country's law for se rvice
852      in that country in an action in its courts of general
853      jurisdiction;
854              2.      As the foreign authority directs in response to a
855      letter rogatory or letter of request; or
856              3.      Unless prohibited by the foreign country's law, by:
857              a.      If serving an individual, delivering a copy of the
858      summons and of the complaint to the individual personally; or
859              b.      Using any form of mail which the clerk addresses and
860      sends to the party and which requires a signed receipt.
861              (c)         Pursuant to motion and order by the court, by other
862      means, including electronically by e-mail or other technology,
863      which the party seeking service shows is reasonably calculated
864      to give actual notice of the proceedings and is not prohibited
865      by international agreement, as the court orders.
866              (2)         Service of process may be effectuated in a foreign
867      country upon a minor or an incompetent person in the manner
868      prescribed by subparagraph (1)(b)1., subparagraph (1)(b)2., or
869      paragraph (1)(c).
870              Section 16.            Effective upon this act becoming a law,
871      subsection (2), paragraph (a) of subsection (3), and subsection
872      (4) of section 766.106, Florida Statutes, are amended to read:
873              766.106        Notice before filing action for medical
874      negligence; presuit screening period; offers for admission of
875      liability and for arbitration; informal discovery; review.—

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         CS/HB 545                                                                                            2022




876              (2)         PRESUIT NOTICE.—
877              (a)         After completion of presuit investigation pursuant to
878      s. 766.203(2) and before prior to filing a complaint for medical
879      negligence, a claimant shall notify each prospective defendant
880      of intent to initiate litigation for medical negligence by at
881      least one of the following verifiable means:
882              1.      United States Postal Service certified mail, return
883      receipt requested;
884              2.      United States Postal Service mail with a tracking
885      number;
886              3.      An interstate commercial mail carrier or delivery
887      service; or
888              4.      Any person authorized by law to serve process.
889              (b)1.        Proof of service made pursuant to this subsection
890      and delivered to an address on file with the Department of
891      Health, the Secretary of State, or the Agency for Health Care
892      Administration creates a rebuttable presumption that service was
893      received by the prospective defendant.
894              2.      If service is challenged during subsequent litigation,
895      an evidentiary hearing must be held by the court to determine
896      whether the prospective defendant or a person legally related to
897      the prospective defendant was provided notice pursuant to this
898      subsection and, if so, the date of such service. If service is
899      challenged under this subparagraph, it must be challenged in the
900      first response to the complaint, and if:

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         CS/HB 545                                                                                            2022




901              a.      The court determines that service was properly made at
902      the prospective defendant's address as listed on the state
903      licensing agency website or an address on file with the
904      Secretary of State; and
905              b.      The prospective defendant proves by the greater weight
906      of the evidence that neither the prospective defendant nor a
907      person legally related to the prospective defendant at the time
908      of service knew or should have known of the service,
909
910      the court shall stay the case for a presuit investigation period
911      pursuant to s. 766.106 and the statute of limitations and
912      statute of repose shall be tolled from the time service was
913      properly made at the prospective defendant's address as listed
914      on the state licensing agency website or an address on file with
915      the Secretary of State. The tolling shall end at the conclusion
916      of the presuit investigation period provided for in t his
917      subsection and the stay of litigation shall automatically end at
918      the conclusion of the presuit investigation period by certified
919      mail, return receipt requested, of intent to initiate litigation
920      for medical negligence.
921              (c)         Notice to each prospective defendant must include, if
922      available, a list of all known health care providers seen by the
923      claimant for the injuries complained of subsequent to the
924      alleged act of negligence, all known health care providers
925      during the 2-year period before prior to the alleged act of

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         CS/HB 545                                                                                            2022




926      negligence who treated or evaluated the claimant, copies of all
927      of the medical records relied upon by the expert in signing the
928      affidavit, and the executed authorization form provided in s.
929      766.1065.
930              (d)(b)        Following the initiation of a suit alleging medical
931      negligence with a court of competent jurisdiction, and service
932      of the complaint upon a prospective defendant, the claimant
933      shall provide a copy of the complaint to the Department of
934      Health and, if the complaint involves a facility licensed under
935      chapter 395, the Agency for Health Care Administration. The
936      requirement of providing the complaint to the Department of
937      Health or the Agency for Health Care Administration does not
938      impair the claimant's legal rights or ability to seek relief for
939      his or her claim. The Department of Health or the Agency for
940      Health Care Administration shall review each incident that is
941      the subject of the complaint and determine whether it involved
942      conduct by a licensee which is potentially subject to
943      disciplinary action, in which case, for a licensed health care
944      practitioner, the provisions of s. 456.073 applies apply and,
945      for a licensed facility, the provisions of part I of chapter 395
946      applies apply.
947              (3)         PRESUIT INVESTIGATION BY PROSPECTIVE DEFENDANT.—
948              (a)         A no suit may not be filed for a period of 90 days
949      after notice is delivered mailed to any prospective defendant.
950      During the 90-day period, the prospective defendant or the

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         CS/HB 545                                                                                            2022




951      prospective defendant's insurer or self-insurer shall conduct a
952      review as provided in s. 766.203(3) to determine the liability
953      of the prospective defendant. Each insurer or self-insurer shall
954      have a procedure for the prompt investigation, review, and
955      evaluation of claims during the 90-day period. This procedure
956      must shall include one or more of the following:
957              1.      Internal review by a duly qualified claims adjuster;
958              2.      Creation of a panel comprised of an attorney
959      knowledgeable in the prosecution or defense of medical
960      negligence actions, a health care provider trained in the same
961      or similar medical specialty as the prospective defendant, and a
962      duly qualified claims adjuster;
963              3.      A contractual agreement with a state or local
964      professional society of health care providers, which maintains a
965      medical review committee; or
966              4.      Any other similar procedure which fairly and promptly
967      evaluates the pending claim.
968
969      Each insurer or self-insurer shall investigate the claim in good
970      faith, and both the claimant and prospective defendant shall
971      cooperate with the insurer in good faith. If the insurer
972      requires, a claimant must shall appear before a pretrial
973      screening panel or before a medical review committee and shall
974      submit to a physical examination, if required. Unreasonable
975      failure of any party to comply with this section justifies

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          CS/HB 545                                                                                            2022




 976      dismissal of claims or defenses. There shall be no civil
 977      liability for participation in a pretrial screening procedure if
 978      done without intentional fraud.
 979              (4)         SERVICE OF PRESUIT NOTICE AND TOLLING.—The notice of
 980      intent to initiate litigation must shall be served within the
 981      time limits set forth in s. 95.11. However, upon mailing of the
 982      notice of intent to initiate litigation, as provided in
 983      subparagraph (2)(a)1., subparagraph (2)(a)2., or subparagraph
 984      (2)(a)3., and during the 90-day period provided in subsection
 985      (3), the statute of limitations is tolled as to all prospective
 986      potential defendants. If the notice of intent to initiate
 987      litigation is served by a process server, as provided in
 988      subparagraph (2)(a)4., the statute of limitations is tolled upon
 989      the process server's first attempt to serve the prospective
 990      defendant and continues during the 90-day period as to all
 991      prospective defendants. Upon stipulation by the parties, the 90-
 992      day period may be extended and the statute of limitations is
 993      tolled during any such extension. Upon receiving notice of
 994      termination of negotiations in an extended period, the claimant
 995      shall have 60 days or the remainder of the period of the statute
 996      of limitations, whichever is greater, within which to file suit.
 997      As used in this section, the terms "prospective" and "potential"
 998      are interchangeable as synonyms.
 999              Section 17.            Section 495.145, Florida Statutes, is amended
1000      to read:

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          CS/HB 545                                                                                            2022




1001              495.145        Forum for actions regarding registration. —An
1002      action seeking cancellation of a registration of a mark
1003      registered under this chapter may be brought in any court of
1004      competent jurisdiction in this state. Service of process on a
1005      nonresident registrant may be made in accordance with ss. 48.161
1006      and 48.181 s. 48.181. The department may shall not be made a
1007      party to cancellation proceedings.
1008              Section 18.             Section 605.0117, Florida Statutes, is amended
1009      to read:
1010              605.0117           Serving Service of process, giving notice, or
1011      making a demand.—
1012              (1)         Process against a limited liability company or
1013      registered foreign limited liability company may be served in
1014      accordance with s. 48.062 and chapter 48 or chapter 49 with
1015      process required or authorized by law by serving on its
1016      registered agent.
1017              (2)         If a limited liability company or registered foreign
1018      limited liability company ceases to have a register ed agent or
1019      if its registered agent cannot with reasonable diligence be
1020      served, the process required or permitted by law may instead be
1021      served:
1022              (a)         On a member of a member-managed limited liability
1023      company or registered foreign limited liability company; or
1024              (b)         On a manager of a manager-managed limited liability
1025      company or registered foreign limited liability company.

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          CS/HB 545                                                                                            2022




1026              (3)         If the process cannot be served on a limited liability
1027      company or registered foreign limited liability company pursuant
1028      to subsection (1) or subsection (2), the process may be served
1029      on the secretary of state as an agent of the company.
1030              (4)         Service of process on the secretary of state may be
1031      made by delivering to and leaving with the department duplicate
1032      copies of the process.
1033              (5)         Service is effectuated under subsection (3) on the
1034      date shown as received by the department.
1035              (6)         The department shall keep a record of each process
1036      served pursuant to this section and record the time of and the
1037      action taken regarding the service.
1038              (2)(7)        Any notice or demand on a limited liability company
1039      or registered foreign limited liability company under this
1040      chapter may be given or made to any member of a member-managed
1041      limited liability company or registered foreign limited
1042      liability company or to any manager of a manager-managed limited
1043      liability company or registered foreign limited liability
1044      company; to the registered agent of the limited liability
1045      company or registered foreign limited liability company at the
1046      registered office of the limited liability company or registered
1047      foreign limited liability company in this state; or to any other
1048      address in this state which that is in fact the principal office
1049      of the limited liability company or registered foreign limited
1050      liability company in this state.

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          CS/HB 545                                                                                            2022




1051              (3)         A registered series of a foreign series limited
1052      liability company may be served in the same manner as a
1053      registered limited liability company.
1054              (4)(8)        This section does not affect the right to serve
1055      process, give notice, or make a demand in any other manner
1056      provided by law.
1057              Section 19.             Subsection (1) of section 605.09091, Florida
1058      Statutes, is amended to read:
1059              605.09091          Judicial review of denial of reinstatement.—
1060              (1)         If the department denies a foreign limited liability
1061      company's application for reinstatement after revocation of its
1062      certificate of authority, the department must shall serve the
1063      foreign limited liability company, pursuant to s. 605.0117(2) s.
1064      605.0117(7), with a written notice that explains the reason or
1065      reasons for the denial.
1066              Section 20.             Paragraphs (f) and (g) of subsection (1) and
1067      subsection (2) of section 605.0910, Florida Statutes, are
1068      amended to read:
1069              605.0910           Withdrawal and cancellation of certificate of
1070      authority.—
1071              (1)         To cancel its certificate of authority to transact
1072      business in this state, a foreign limited liability company must
1073      deliver to the department for filing a notice of withdrawal of
1074      certificate of authority. The certificate of authority is
1075      canceled when the notice becomes effective pursuant to s.

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          CS/HB 545                                                                                            2022




1076      605.0207. The notice of withdrawal of certificate of authority
1077      must be signed by an authorized representative and state the
1078      following:
1079              (f)         A mailing address and an e-mail address to which a
1080      party seeking to effectuate service of process the department
1081      may send mail a copy of any process served on the Secretary of
1082      State under paragraph (e).
1083              (g)         A commitment to notify the department in the future of
1084      any change in its mailing address or e-mail address.
1085              (2)         After the withdrawal of the foreign limited liability
1086      company is effective, service of process on the Secretary of
1087      State using the procedures set forth in s. 48.161 under this
1088      section is service on the foreign limited liability company.
1089      Upon receipt of the process, the department shall mail a copy of
1090      the process to the foreign limited liability company at the
1091      mailing address set forth under paragraph (1)(f).
1092              Section 21.             Paragraph (f) of subsection (2) of section
1093      605.1045, Florida Statutes, is amended to read:
1094              605.1045           Articles of conversion.—
1095              (2)         The articles of conversion must contain the following:
1096              (f)         If the converted entity is a foreign entity that does
1097      not have a certificate of authority to transact business in this
1098      state, a mailing address and an e-mail address to which a party
1099      seeking to effectuate service of process the department may send
1100      any process served on the Secretary of State department pursuant

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          CS/HB 545                                                                                            2022




1101      to s. 605.0117 and chapter 48.
1102              Section 22.             Section 607.0504, Florida Statutes, is amended
1103      to read:
1104              607.0504           Serving Service of process, giving notice, or
1105      making a demand on a corporation.—
1106              (1)         A corporation may be served with process required or
1107      authorized by law in accordance with s. 48.081 and chapter 48 or
1108      chapter 49 by serving on its registered agent.
1109              (2)         If a corporation ceases to have a registered agent or
1110      if its registered agent cannot with reasonable diligence be
1111      served, the process required or permitted by law may instead be
1112      served on the chair of the board, the president, any vice
1113      president, the secretary, or the treasurer of the corporation at
1114      the principal office of the corporation in this state.
1115              (3)         If the process cannot be served on a corporation
1116      pursuant to subsection (1) or subsection (2), the process may be
1117      served on the secretary of state as an agent of the corporation.
1118              (4)         Service of process on the secretary of state shall be
1119      made by delivering to and leaving with the department duplicate
1120      copies of the process.
1121              (5)         Service is effectuated under subsection (3) on the
1122      date shown as received by the department.
1123              (6)         The department shall keep a record of each process
1124      served on the secretary of state pursuant to this subsection and
1125      record the time of and the action taken regarding the service.

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          CS/HB 545                                                                                            2022




1126              (2)(7)        Any notice or demand on a corporation under this
1127      chapter may be given or made to the chair of the board, the
1128      president, any vice president, the secretary, or the treasurer
1129      of the corporation; to the registered agent of the corporation
1130      at the registered office of the corporation in this state; or to
1131      any other address in this state which that is in fact the
1132      principal office of the corporation in this state.
1133              (3)(8)        This section does not affect the right to serve
1134      process, give notice, or make a demand in any other manner
1135      provided by law.
1136              Section 23.             Subsection (1) of section 607.1423, Florida
1137      Statutes, is amended to read:
1138              607.1423           Judicial review of denial of reinstatement. —
1139              (1)         If the department denies a corporation's application
1140      for reinstatement after administrative dissolution, the
1141      department must shall serve the corporation under either s.
1142      607.0504(1) or (2) with a written notice that explains the
1143      reason or reasons for denial.
1144              Section 24.             Section 607.15101, Florida Statutes, is
1145      amended to read:
1146              607.15101          Serving Service of process, giving notice, or
1147      making a demand on a foreign corporation.—
1148              (1)         A foreign corporation may be served with process
1149      required or authorized by law in accordance with s. 48.081 and
1150      chapter 48 or chapter 49 by serving on its registered agent.

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          CS/HB 545                                                                                            2022




1151              (2)         If a foreign corporation ceases to have a registered
1152      agent or if its registered agent cannot with reasonable
1153      diligence be served, the process required or permitted by law
1154      may instead be served on the chair of the board, the president,
1155      any vice president, the secretary, or the treasurer of the
1156      foreign corporation at the principal office of the foreign
1157      corporation in this state.
1158              (3)         If the process cannot be served on a foreign
1159      corporation pursuant to subsection (1) or subsection (2), the
1160      process may be served on the secretary of state as an a gent of
1161      the foreign corporation.
1162              (4)         Service of process on the secretary of state may be
1163      made by delivering to and leaving with the department duplicate
1164      copies of the process.
1165              (5)         Service is effectuated under subsection (3) on the
1166      date shown as received by the department.
1167              (6)         The department shall keep a record of each process
1168      served on the secretary of state pursuant to this section and
1169      record the time of and the action taken regarding the service.
1170              (2)(7)        Any notice or demand on a foreign corporation under
1171      this chapter may be given or made: to the chair of the board,
1172      the president, any vice president, the secretary, or the
1173      treasurer of the foreign corporation; to the registered agent of
1174      the foreign corporation at the registered office of the foreign
1175      corporation in this state; or to any other address in this state

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          CS/HB 545                                                                                            2022




1176      which that is in fact the principal office of the foreign
1177      corporation in this state.
1178              (3)(8)        This section does not affect the right to serve
1179      process, give notice, or make a demand in any other manner
1180      provided by law.
1181              Section 25.             Paragraphs (f) and (g) of subsection (1) and
1182      subsection (2) of section 607.1520, Florida Statutes, are
1183      amended to read:
1184              607.1520           Withdrawal and cancellation of certificate of
1185      authority for foreign corporation.—
1186              (1)         To cancel its certificate of authority to transact
1187      business in this state, a foreign corporation must deliver to
1188      the department for filing a notice of withdrawal of certificate
1189      of authority. The certificate of authority is canceled when the
1190      notice of withdrawal becomes effective pursuant to s. 607.0123.
1191      The notice of withdrawal of certificate of authority must be
1192      signed by an officer or director and state the following:
1193              (f)         A mailing address and an e-mail address to which a
1194      party seeking to effectuate service of process the secretary of
1195      state may send mail a copy of any process served on the
1196      Secretary of State under paragraph (e).
1197              (g)         A commitment to notify the department in the future of
1198      any change in its mailing address or e-mail address.
1199              (2)         After the withdrawal of the foreign corporation is
1200      effective, service of process on the Secretary of State using

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          CS/HB 545                                                                                            2022




1201      the procedures in s. 48.161 under this section is service on the
1202      foreign corporation. Upon receipt of the process, the secretary
1203      of state shall mail a copy of the process to the foreign
1204      corporation at the mailing address set forth under paragraph
1205      (1)(f).
1206              Section 26.             Subsections (1) and (3) of section 617.0504,
1207      Florida Statutes, are amended to read:
1208              617.0504           Serving Service of process, giving notice, or
1209      making a demand on a corporation.—
1210              (1)         Process against any corporation may be served in
1211      accordance with s. 48.081 and chapter 48 or chapter 49.
1212              (3)         This section does not prescribe the only means, or
1213      necessarily the required means, of serving process, giving
1214      notice, or making a demand on a corporation.
1215              Section 27.             Section 617.1510, Florida Statutes, is amended
1216      to read:
1217              617.1510           Serving Service of process, giving notice, or
1218      making a demand on a foreign corporation.—
1219              (1)         Process against a foreign corporation may be served in
1220      accordance with s. 48.081 and chapter 48 or chapter 49 The
1221      registered agent of a foreign corporation authorized to conduct
1222      its affairs in this state is the corporation's agent for service
1223      of process, notice, or demand required or permitted by law to be
1224      served on the foreign corporation.
1225              (2)         A foreign corporation may be served by registered or

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          CS/HB 545                                                                                            2022




1226      certified mail, return receipt requested, addressed to the
1227      secretary of the foreign corporation at its principal office
1228      shown in its application for a certificate of authority or in
1229      its most recent annual report if the foreign corporation:
1230              (a)         Has no registered agent or its registered agent cannot
1231      with reasonable diligence be served;
1232              (b)         Has withdrawn from conducting its affairs in this
1233      state under s. 617.1520; or
1234              (c)         Has had its certificate of authority revoked under s.
1235      617.1531.
1236              (3)         Service is perfected under subsection (2) at the
1237      earliest of:
1238              (a)         The date the foreign corporation receives the mail;
1239              (b)         The date shown on the return receipt, if signed on
1240      behalf of the foreign corporation; or
1241              (c)         Five days after its deposit in the United States mail,
1242      as evidenced by the postmark, if mailed postpaid and correctly
1243      addressed.
1244              (4)         This section does not prescribe the only means, or
1245      necessarily the required means, of serving a foreign
1246      corporation. Process against any foreign corporation may also be
1247      served in accordance with chapter 48 or chapter 49.
1248              (2)(5)        Any notice to or demand on a foreign corporation
1249      made pursuant to this act may be made in accordance with the
1250      procedures for notice to or demand on domestic corporations

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          CS/HB 545                                                                                            2022




1251      under s. 617.0504.
1252              Section 28.             Subsections (2) and (3) of section 617.1520,
1253      Florida Statutes, are amended to read:
1254              617.1520           Withdrawal of foreign corporation.—
1255              (2)         A foreign corporation authorized to conduct its
1256      affairs in this state may apply for a certificate of withdrawal
1257      by delivering an application to the Department of State for
1258      filing. The application must shall be made on forms prescribed
1259      and furnished by the Department of State and must shall set
1260      forth all of the following:
1261              (a)         The name of the foreign corporation and the
1262      jurisdiction under the law under of which it is incorporated.;
1263              (b)         That it is not conducting its affairs in this state
1264      and that it surrenders its authority to conduct its affairs in
1265      this state.;
1266              (c)         That it revokes the authority of its registered agent
1267      to accept service on its behalf and appoints the Secretary of
1268      State Department of State as its agent for service of process
1269      based on a cause of action arising during the time it was
1270      authorized to conduct its affairs in this state.;
1271              (d)         A mailing address and an e-mail address to which a
1272      party seeking to effectuate service of process the Department of
1273      State may send mail a copy of any process served on it under
1274      paragraph (c).; and
1275              (e)         A commitment to notify the Department of State in the

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          CS/HB 545                                                                                            2022




1276      future of any change in its mailing address or e-mail address.
1277              (3)         After the withdrawal of the corporation is effective,
1278      service of process in accordance with s. 48.161 on the
1279      Department of State under this section is service on the foreign
1280      corporation. Upon receipt of the process, the Department of
1281      State shall mail a copy of the process to the foreign
1282      corporation at the mailing address set forth under subsection
1283      (2).
1284              Section 29.             Section 620.1117, Florida Statutes, is amended
1285      to read:
1286              620.1117           Serving Service of process, giving notice, or
1287      making a demand on a limited partnership or a foreign limited
1288      partnership.—
1289              (1)         Service of process on a limited partnership or foreign
1290      limited partnership must be made in accordance with s. 48.061
1291      and chapter 48 or chapter 49 A registered agent appointed by a
1292      limited partnership or foreign limited partnership is an agent
1293      of the limited partnership or foreign limited partnership for
1294      service of any process, notice, or demand required or permitted
1295      by law to be served upon the limited partnership or foreign
1296      limited partnership.
1297              (2)         Any notice or demand on a limited partnership or
1298      foreign limited partnership under this chapter may be given or
1299      made to any general partner of the limited partnership or
1300      foreign limited partnership, to the registered agent of the

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          CS/HB 545                                                                                            2022




1301      limited partnership or foreign limited partnership at the
1302      registered office in this state, or to any other address in this
1303      state which is in fact the principal office of the limited
1304      partnership or foreign limited partnership in this state If a
1305      limited partnership or foreign limited partnership does not
1306      appoint or maintain a registered agent in this state or the
1307      registered agent cannot with reasonable diligence be found at
1308      the address of the registered office, the Department of State
1309      shall be an agent of the limited partnership or foreign limited
1310      partnership upon whom process, notice, or demand may be served.
1311              (3)         Service of any process, notice, or demand on the
1312      Department of State may be made by delivering to and leaving
1313      with the Department of State duplicate copies of the process,
1314      notice, or demand.
1315              (4)         Service is effected under subsection (3) upon the date
1316      shown as having been received by the Department of State.
1317              (5)         The Department of State shall keep a record of each
1318      process, notice, and demand served pursuant to this section and
1319      record the time of, and the action taken regarding, the service.
1320              (3)(6)        This section does not affect the right to serve
1321      process, give notice, or make a demand in any other manner
1322      provided by law.
1323              Section 30.             Subsection (5) of section 620.1907, Fl orida
1324      Statutes, is amended to read:
1325              620.1907           Cancellation of certificate of authority; effect

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          CS/HB 545                                                                                            2022




1326      of failure to have certificate.—
1327              (5)         If a foreign limited partnership transacts business in
1328      this state without a certificate of authority or cancels its
1329      certificate of authority, it may be served under s. 48.061(5)(b)
1330      the foreign limited partnership shall appoint the Department of
1331      State as its agent for service of process for rights of action
1332      arising out of the transaction of business in this state .
1333              Section 31.             Subsections (3) and (4) of section 620.2105,
1334      Florida Statutes, are amended to read:
1335              620.2105           Effect of conversion.—
1336              (3)         A converted organization that is a foreign
1337      organization consents to the jurisdiction of the courts of this
1338      state to enforce any obligation owed by the converting limited
1339      partnership, if before the conversion the converting limited
1340      partnership was subject to suit in this state on the obligation.
1341      A converted organization that is a foreign organization and not
1342      authorized to transact business in this state appoints the
1343      Secretary of State Department of State as its agent for service
1344      of process for purposes of enforcing an obligation under this
1345      subsection and any appraisal rights of limited partners under
1346      ss. 620.2113-620.2124 to the extent applicable to the
1347      conversion. Service on the Secretary of State Department of
1348      State under this subsection is made in the same manner and with
1349      the same consequences as in ss. 48.161 and 620.1117 s.
1350      620.1117(3) and (4).

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          CS/HB 545                                                                                            2022




1351              (4)         A copy of the statement of conversion, certified by
1352      the Secretary of State Department of State, may be filed in any
1353      county of this state in which the converting organization holds
1354      an interest in real property.
1355              Section 32.             Subsection (2) of section 620.2109, Florida
1356      Statutes, is amended to read:
1357              620.2109           Effect of merger.—
1358              (2)         A surviving organization that is a foreign
1359      organization consents to the jurisdiction of the courts of this
1360      state to enforce any obligation owed by a constituent
1361      organization, if before the merger the constituent organization
1362      was subject to suit in this state on the obligation. A surviving
1363      organization that is a foreign organization and not authorized
1364      to transact business in this state shall appoint the Secretary
1365      of State Department of State as its agent for service of process
1366      for the purposes of enforcing an obligation under this
1367      subsection and any appraisal rights of limited partners under
1368      ss. 620.2113-620.2124 to the extent applicable to the merger.
1369      Service on the Secretary of State Department of State under this
1370      subsection is made in the same manner and with the same
1371      consequences as in ss. 48.161 and 620.1117 s. 620.1117(3) and
1372      (4).
1373              Section 33.             Subsections (3) and (4) of section 620.8915,
1374      Florida Statutes, are amended to read:
1375              620.8915           Effect of conversion.—

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          CS/HB 545                                                                                            2022




1376              (3)         A converted organization that is a foreign
1377      organization consents to the jurisdiction of the courts of this
1378      state to enforce any obligation owed by the converting
1379      partnership, if before the conversion the converting partnership
1380      was subject to suit in this state on the obligation. A conve rted
1381      organization that is a foreign organization and not authorized
1382      to transact business in this state shall appoint the Secretary
1383      of State Department of State as its agent for service of process
1384      for purposes of enforcing an obligation under this subsectio n.
1385      Service on the Secretary of State Department of State under this
1386      subsection is shall be made in the same manner and with the same
1387      consequences as provided in s. 48.161 s. 48.181.
1388              (4)         A copy of the certificate of conversion, certified by
1389      the Secretary of State Department of State, may be filed in any
1390      county of this state in which the converting organization holds
1391      an interest in real property.
1392              Section 34.             Subsection (2) of section 620.8919, Florida
1393      Statutes, is amended to read:
1394              620.8919           Effect of merger.—
1395              (2)         A surviving organization that is a foreign
1396      organization consents to the jurisdiction of the courts of this
1397      state to enforce any obligation owed by a constituent
1398      organization, if before the merger the constituent organization
1399      was subject to suit in this state on the obligation. A surviving
1400      organization that is a foreign organization and not authorized

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          CS/HB 545                                                                                            2022




1401      to transact business in this state shall appoint the Secretary
1402      of State Department of State as its agent for service of process
1403      pursuant to s. 48.161 the provisions of s. 48.181.
1404              Section 35.           Except as otherwise expressly provided in this
1405      act and except for this section, which shall take effect upon
1406      this act becoming a law, this act shall take effect January 2,
1407      2023.




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HB 667
                                  HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #:     HB 667 Department of Business and Professional Regulation
SPONSOR(S): McClain
TIED BILLS:       IDEN./SIM. BILLS: SB 714

  REFERENCE                                                   ACTION                  ANALYST            STAFF DIRECTOR or
                                                                                                         BUDGET/POLICY CHIEF

  1) Regulatory Reform Subcommittee                                                   Wright             Anstead

  2) State Administration & Technology
     Appropriations Subcommittee

  3) Commerce Committee


                                               SUMMARY ANALYSIS
The Department of Business and Professional Regulation (DBPR) is responsible for licensing and regulating
various businesses and professions throughout the state, including asbestos professionals, mold-related
professionals, electrical contractors, public lodging establishments, and public food service establishments.

Related to mold-related professional licensing regulations, the bill provides a pathway for a person who holds a
license in another state to obtain a Florida license.

Related to asbestos professional licensing regulations, the bill:
    provides a limited pathway for a person who holds a license in another state to obtain a Florida license,
       and
    removes the requirement to show limits of bondability and credit to demonstrate financial stability as
       required for initial licensure.

Related to electrical contractors licensing regulations, the bill allows certain local electrical and alarm
contractors to be licensed statewide.

Related to pugilistic exhibitions, the bill removes the maximum participant weight differential requirement for all
exhibition matches. This will allow any exhibition to include participants who are not in the same weight
category.

Related to public lodging establishments and public food service establishments, the bill:
    requires licensees to submit certain documents, fees, and communications online;
    requires licensees to provide an email address for primary communication with DBPR;
    allows notices to be served to the operator of a licensed establishment via email, in addition to in-
       person service and registered mail;
    allows the guest registry at a transient public lodging establishment to be kept online, and guests are no
       longer required to sign the registry;
    allows 2-year renewals on licenses, instead of only one-year renewals; and
    removes the requirement for a staggered initial license fee schedule.

The bill has an effective date of July 1, 2022.

The bill has a negative fiscal impact on state government and no impact on local governments. The loss of
revenue for the Division of Hotels and Restaurants over three fiscal years would be an estimated $5,097,633.
See Fiscal Analysis & Economic Impact Statement.




This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h0667.RRS
DATE: 1/18/2022
                                                        FULL ANALYSIS

                                                I. SUBSTANTIVE ANALYSIS

    A. EFFECT OF PROPOSED CHANGES:
         Department of Business and Professional Regulation

         The Florida Department of Business and Professional Regulation (DBPR) regulates and licenses
         various businesses and professionals in Florida through the following divisions:
             • The Division of Administration,
             • The Division of Alcoholic Beverages and Tobacco,
             • The Division of Certified Public Accounting,
             • The Division of Drugs, Devices, and Cosmetics,
             • The Division of Florida Condominiums, Timeshares, and Mobile Homes,
             • The Division of Hotels and Restaurants,
             • The Division of Pari-mutuel Wagering,
             • The Division of Professions,
             • The Division of Real Estate,
             • The Division of Regulation,
             • The Division of Technology, and
             • The Division of Service Operations.1

         The Division of Professions licenses and regulates various professions through 12 professional boards,
         five programs, and one council, including the: 2
             • Asbestos Licensing Unit,
             • Electrical Contractors’ Licensing Board (ECLB), and
             • Mold-Related Services Program.

         The Division of Regulation is the enforcement authority for Labor Organizations and Business Agents,
         the Florida Athletic Commission (FAC), Farm Labor Program, Child Labor Program, and any
         professional boards and programs housed within Professions. 3

         The Division of Hotels and Restaurants under DBPR (H&R) licenses, inspects and regulates public
         lodging and food service establishments in Florida.4

         Mold-Related Services

         Background

         Mold assessors and mold remediators are regulated by part XVI of ch. 468, F.S., and licensed by the
         Mold-Related Services Licensing Program in DBPR.

         “Mold assessment” means a process performed by a mold assessor that includes the physical sampling
         and detailed evaluation of data obtained from a building history and inspection to formulate an initial
         hypothesis about the origin, identity, location, and extent of amplification of mold growth of greater than
         10 square feet.5



1 s. 20.165, F.S.
2 Florida Department of Business and Professional Regulation, Division of Professions, http://www.myfloridalicense.com/DBPR/division-

of-professions/ (last visited Jan. 14, 2022).
3 Except the Board of Architecture and Interior Design, and the Florida Board of Professional Engineers. Florida Department of

Business and Professional Regulation, Division of Regulation, http://www.myfloridalicense.com/DBPR/division-of-regulation/ (last
visited Jan. 14, 2022).
4 Florida Department of Business and Professional Regulation, D ivision of Hotels and Restaurants,

http://www.myfloridalicense.com/DBPR/hotels-restaurants/ (last visited Jan. 14, 2022).
5 S. 468.8411(3), F.S.

STORAGE NAME: h0667.RRS                                                                                                       PAGE: 2
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         “Mold remediation” means the removal, cleaning, sanitizing, demolition, or other treatment, including
         preventive activities, of mold or mold-contaminated matter of greater than 10 square feet that was not
         purposely grown at that location; however, it may not include work that requires a contractor license
         under Ch. 489, F.S.6

         In order to be licensed as a mold assessor or mold remediator, an applicant must:
              be of good moral character,
              pass the required DBPR-approved examination offered by a nationally recognized organization
                 that certifies persons in the specialty of mold assessment or mold remediation,
              have required liability insurance, and
              complete either:
                     o at least a 2-year associate of arts degree with certain course requirements, and a
                          minimum of 1 year of experience; or
                     o a high school diploma or the equivalent with a minimum of 4 years of experience. 7

         A person who is licensed in another state is eligible for a license by endorsement in Florida if they:8
             are of good moral character;
             hold required general liability insurance;
             hold a valid license to practice as a mold assessor or mold remediator in another state or
                territory of the United States whose educational requirements are substantially equivalent to
                Florida; and
             have passed a national, regional, state, or territorial licensing examination that is substantially
                equivalent to the required Florida examination.

         Applicants for a mold-related license pay an initial licensure fee of $230. There are currently 2,700
         licensed mold assessors and 2,727 licensed mold remediators in the state.9

         Effect of the Bill

         The bill allows applicants who hold a mold-related license in another state to obtain a license by
         endorsement in Florida, if they have held a valid license to practice in another state or territory of the
         United States for at least 10 years before the date of application, without needing to take a Florida-
         specific examination or training.

         Such applications for a Florida license by endorsement must be made either when the applicant’s
         license in another state or territory is active or within 2 years of when such license was last active.

         The bill clarifies the provision relating to licensure examination requirements.

         Asbestos Consultants and Contractors

         Background

         Asbestos consultants and contractors are regulated by Ch. 469, F.S., and licensed by the Asbestos
         Licensing Unit in DBPR. Florida licensing standards must also comply with the United States
         Environmental Agency Asbestos Model Accreditation Plan for States (MAP), which includes mandatory
         nationwide standards for testing and education.10

         “Asbestos abatement” means the removal, encapsulation, enclosure, or disposal of asbestos. 11


6 S. 468.8411(5), F.S.
7 S. 468.8413(2), F.S.
8 S. 468.8414(3), (4), F.S.
9 Email from Cody McCloud, Legislative Affairs Director, Department of Business and Professional Regulation, RE: HB 667 (Jan. 6 ,

2022).
10 40 CFR § 763 Subp. E App. C.
11 S. 469.001(1), F.S.

STORAGE NAME: h0667.RRS                                                                                                      PAGE: 3
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         An asbestos consultant may:
            • conduct an asbestos survey,
            • develop an operation and maintenance plan,
            • monitor and evaluate asbestos abatement, and
            • prepare asbestos abatement specifications.12

         An asbestos contractor may perform the work of an asbestos consultant and also conduct asbestos
         abatement work.13

         In order to be eligible to be licensed as an asbestos consultant or contractor, an applicant must meet
         one of the following criteria:14
              hold a current, valid, active license as an architect issued under Ch. 481, F.S.;
              hold a current, valid, active license as a professional engineer issued under Ch. 471, F.S.,
              hold a current, valid, active license as a professional geologist under Ch. 492, F.S.;
              be a diplomat of the American Board of Industrial Hygiene; or
              have been awarded designation as a Certified Safety Professional by the Board of Certified
                 Safety Professionals.

         An applicant for licensure as either an asbestos consultant or contractor must also:15
             if applying for an asbestos consultant license, complete DBPR-approved courses in the
                following topics:
                     o building asbestos surveys and mechanical systems,
                     o asbestos management planning,
                     o respiratory protection, and
                     o project designer.
             if applying for an asbestos contractor license, complete courses in the following topics:
                     o asbestos contractor/supervisor, and
                     o respiratory protection.
             provide evidence of satisfactory work on 10 asbestos projects within the last 5 years,
             provide evidence of financial stability, and
             pass the DBPR-approved examination.

         In order to determine financial stability and adopt standards in related rules,16 DBPR must use both the
         applicant’s credit history and limits of bondability and credit.17

         There is no provision which specifically allows or addresses licenses by endorsement for asbestos
         licensees of other states.

         Applicants for an asbestos license pay a business license fee of $555, an initial licensure fee of $555,
         and an examination fee of $340.18 There are currently 119 licensed asbestos contractors and 106
         licensed asbestos consultants in the state.19 DBPR has averaged 33 asbestos applications per year
         over the last three fiscal years.20

         Effect of the Bill

         The bill allows applicants who hold an asbestos license in another state license to obtain a license by
         endorsement in Florida if they have:
             passed a written examination in any state that meets the requirements of MAP,

12 S. 469.003, F.S.
13 S. 469.003(3), F.S.
14 S. 469.004(1), F.S.
15 S. 469.005, F.S.
16 The standards for determining an applicant’s financial stability can be found in rule 61E1 -4.002, F.A.C.
17 S. 469.006(2)(c)2., F.S.
18 R. 61E1-3.001, F.A.C.
19 DBPR, supra note 9.
20 Department of Business and Professional Regulation, Agency Analysis of 2022 Senate Bill 714, p. 9 (Jan. 14, 2022).

STORAGE NAME: h0667.RRS                                                                                                 PAGE: 4
DATE: 1/18/2022
                  held a license as an asbestos consultant or asbestos contractor issued by another state or
                   territory of the United States for at least 10 years,
                  demonstrated financial stability, and
                  completed the required DBPR-approved courses.

         Such applicants must apply while they hold an active license in another state or territory, or within 2
         years after such license was last active.

         The bill removes the requirement that applicants show limits of bondability and credit in order to
         prove financial stability. Applicants will still need to provide their credit history to meet financial stability
         standards.

         Electrical Contractors

         Background

         Statewide electrical, alarm system, and specialty contractors are regulated by part II of Ch. 489, F.S.,
         and licensed and regulated by the ECLB within DBPR.21 An electrical contractor engages in business
         as a contractor or performs electrical or alarm work for compensation.22

         Electrical contractors may work on electrical wiring, fixtures, appliances, apparatus, raceways, and
         conduits which generate, transmit, transform, or utilize electrical energy in any form. The scope of an
         electrical contractor’s license includes alarm system work.23

         Alarm system contractors may lay out, fabricate, install, maintain, alter, repair, monitor, inspect,
         replace, or service burglary, fire, robbery, or medical emergency alarm systems.24

         In order to become a certified electrical, alarm system, or specialty contractor, an applicant must:25
              be at least 18 years of age;
              be of good moral character;
              pass the certification examination;
              have workers’ compensation insurance or an exemption, and public liability and property
                 damage insurance; and
              meet certain training and education criteria.

         A registered contractor is an individual that have taken and passed a local competency examination
         and can practice the specific category of contracting for which they are approved, only in the local
         jurisdiction for which the license is issued.26 Locally registered contractors that are required to hold a
         contracting license to practice their profession in accordance with state law must register with DBPR
         after obtaining a local license.27

         Section 489.514, F.S., created a pathway that allowed registered local electrical and alarm contractors
         who met certain criteria to have their local registration converted into a certified statewide license by the
         ECLB. The provision required applicants to apply by November 1, 2021, and is thus is no longer
         available for use by local registered contractors. This provision is commonly referred to as the
         “grandfathering provision.”

         Any registered contractor wishing to have their license “grandfathered” into a certified license had to
         submit a completed application to the ECLB, pay an appropriate fee, and show evidence of the
         following criteria:

21 S. 489.507, F.S.
22 S. 489.505(9), F.S.
23 Ss. 489.505(12) & 489.537(7), F.S.
24 S. 489.505(1)-(2), F.S.
25 S. 489.511(1) & (4), F.S.
26 S. 489.505(21)-(23), F.S.
27 S. 489.513, F.S.

STORAGE NAME: h0667.RRS                                                                                             PAGE: 5
DATE: 1/18/2022
                     currently holds a valid registered local license in the certification of electrical contractor,
                      alarm system contractor, or electrical specialty contractor sought;
                     has, for the certification category sought, passed a written, proctored examination that the
                      ECLB finds to be substantially similar to the examination required to be licensed as a
                      certified contractor;
                     has at least 5 years of experience as a contractor in the certification category sought, or as
                      an inspector or building administrator with oversight over that category. For contractors, only
                      time periods in which the contractor license is active and the contractor is not on probation
                      shall count toward the required 5 years;
                     has not had the contractor’s license revoked at any time, suspended in the last 5 years, or
                      assessed a fine in excess of $500 in the last 5 years; and
                     has the required workers’ compensation insurance or an exemption, and public liability and
                      property damage insurance.28

         DBPR received 766 applications from local electrical and alarm contractors for a statewide license
         during the last period of grandfathering, from July 1, 2019, through November 1, 2021. 29

         Effect of the Bill

         The bill reopens the grandfathering provision for locally registered electrical, alarm system, and
         specialty contractors to obtain licensure as statewide certified contractors without an expiration date.

         Pugilistic Exhibitions

         Background

         Chapter 548, F.S., governs the FAC under DBPR. The function of the FAC is to license and regulate
         pugilistic events and matches, including professional boxing, kickboxing, and mixed martial arts. The
         FAC ensures that all matches are conducted in accordance with provisions of state laws and rules.

         A match participant, manager, trainer, second, timekeeper, referee, judge, announcer, physician, 30
         matchmaker, or promoter must be licensed by FAC before directly or indirectly acting in such capacity
         in connection with any match. In order to obtain a license, an applicant must:31
              complete an application in a form prescribed by the FAC,
              be at least 18 years of age, and
              pay an application fee.

         An “exhibition” is a boxing, kickboxing, or mixed martial arts engagement in which persons participating
         show or display their skill without necessarily striving to win using strikes and blows to the head or other
         full-contact maneuvers.32 Participants in an exhibition, except one held solely for training purposes,
         must weigh within 12 pounds of each other.33

         Effect of the Bill

         The bill removes the maximum participant weight differential requirement for all exhibition matches.
         This will allow any exhibition to include participants that are more than 12 pounds from each other.

         Hotels and Restaurants



28 S. 489.514, F.S.
29 DBPR, supra note 20, at 9.
30 A physician must be licensed pursuant to chapter 458 or chapter 459, must maintain a license in good standing, and must

demonstrate satisfactory medical training or experience in boxing. S. 548.017, F.S.
31 S. 548.021, F.S.
32 S. 548.002(8), F.S.
33 S. 548.043(2), F.S.

STORAGE NAME: h0667.RRS                                                                                                      PAGE: 6
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         “Public lodging establishment” includes:34
             “Transient public lodging establishments,” which means any unit, group of units, dwelling,
                 building, or group of buildings within a single complex of buildings which is rented to guests
                 more than three times in a calendar year for periods of less than 30 days, or 1 calendar month,
                 whichever is less, or which is advertised or held out to the public as a place regularly rented to
                 guests; and
             “Nontransient public lodging establishments,” which means any unit, group of units, dwelling,
                 building, or group of buildings within a single complex of buildings which is rented to guests for
                 periods of at least 30 days or 1 calendar month, whichever is less, or which is advertised or held
                 out to the public as a place regularly rented to guests for periods of at least 30 days or 1
                 calendar month.

         Classifications of public lodging establishments include hotels, motels, vacation rentals, apartments,
         bed and breakfast inns, and timeshare projects.35

         “Public food service establishments” means any building, vehicle, place, or structure, or any room or
         division thereof, where food is prepared, served, or sold for immediate consumption on or in the vicinity
         of the premises; called for or taken out by customers; or prepared prior to being delivered to another
         location for consumption, with certain exceptions. 36

         Classifications of public food service establishments include permanent food service restaurants,
         catering services, mobile food dispensing vehicles, vending machines, theme park carts, culinary
         education programs, and temporary food service events. 37

         Electronic Communications - Background

         While H&R has rulemaking authority to adopt rules to implement Ch. 509, F.S., H&R does not have
         authority to adopt rules to require electronic submissions for any required document or fee from a
         licensee, or for H&R to require online communications with a licensee. 38 There is also no statutory
         requirement that such documents, fees or communications be transmitted online or for licensees to give
         an email address to H&R.39

         Notices that are served by H&R must be delivered to the operator of a licensed establishment by an
         H&R agent or by registered mail. If H&R is unable to effect service, the notice may be conspicuously
         posted at the licensee’s establishment.40 Inspection reports may be served via electronic means.

         Each transient public lodging establishment is required to maintain a register of guests who occupy
         rental units in the establishment. The guests must also sign the registry. There is not a specific
         allowance that the registry may be kept in an electronic format.

         Electronic Communications – Effect of the Bill

         The bill gives rulemaking authority to H&R to adopt rules to mandate that certain documents, fees, and
         communications must be made online. H&R may prescribe requirements and procedures for
         exemptions due to technological or financial hardship.

         The bill requires all H&R licensees to provide an email address to function as the primary method of
         communication with H&R.



34 S. 509.013(4), F.S.
35 S. 509.242, F.S.
36 S. 509.013(5), F.S.
37 R. 61C-1.002, F.A.C.; Florida Department of Business and Professional Regulation, Hotels and Restaurants – Licensing Guides,

http://www.myfloridalicense.com/DBPR/hotels-restaurants/licensing/licensing-guides/ (last visited Jan. 14, 2022).
38 S. 509.032, F.S.
39 S. 509.091, F.S.
40 S. 509.091(1), F.S.

STORAGE NAME: h0667.RRS                                                                                                    PAGE: 7
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         The bill allows H&R to serve notices to the operator of a licensed establishment via email, in addition to
         in-person service and registered mail.

         The bill allows the guest registry at a transient public lodging establishment to be kept online, and
         guests are no longer required to sign the registry.

         Licensure Fees- Background

         Each public lodging establishment and public food service establishment must obtain a license from
         H&R. Licenses are renewed annually, and H&R must adopt a rule establishing a staggered schedule
         for license renewals.41

         The staggered initial license fee schedules require such establishments applying for an initial license to
         pay the full license fee if the application is made during the annual renewal period or more than 6
         months before the next such renewal period, and one-half of the fee if the application is made 6 months
         or less before the next renewal period.42 For example: if an applicant is applying for a hotel license with
         between 26 and 50 rental units, the initial license fee is $215, but if such applicant is applying for the
         license less than 6 months before the beginning of the next renewal period, the initial license fee is
         $112.50. Such applicant will need to pay the full annual fee when the next renewal period begins. 43

         H&R adopts, by rule, a schedule of fees to be paid by each public lodging establishment and public
         food service establishment for the issuance or renewal of a license. Such fees are based on the
         number of rental units in the public lodging establishment, and based on seating capacity and services
         offered for public food service establishments. Licenses must be renewed annually.44 License fees
         generally range from $91 for a temporary food vendor to $357 for a hotel with 501 or more rental
         units.45

         Licensure Fees- Effect of the Bill

         The bill removes the requirement for a staggered initial license fee schedule for public lodging
         establishments and public food service establishments, and instead provides for an initial license that
         may be renewed for one or two years. Applications for licensure must be made on forms provided by
         H&R, and H&R must adopt rules for license issuance and renewal.

         The bill provides that license renewal fees for public lodging establishments must be based on the
         number of rental units in the establishment and whether the renewal is for one or two years. License
         renewal fees for public food service establishments must be based on the classification of the license
         and whether the renewal is for one or two years.

         The bill provides that the statutory maximum fee for a public lodging establishment for a two-year
         renewal is set at $2,000, which is double the currently allowed maximum for annual renewals. The
         statutory maximum fee for a public food service establishment for a two-year renewal is set at $800,
         which is double the currently allowed maximum for annual renewals.

         The bill clarifies that all fees be must be paid by the applicant when the license application is submitted
         to H&R.

    B. SECTION DIRECTORY:




41 S. 509.241(1), F.S.
42 S. 509.251(1), (2), F.S.
43 S. 509.251(1), (2), F.S.; Department of Business and Professional Regulation, Hotel and Restaurants – Hotel-Motel Guide,

http://www.myfloridalicense.com/DBPR/hotels-restaurants/licensing/hotels-and-restaurants-hotel-motel-guide/ (last visited Jan. 14,
2022).
44 S. 509.251(1), (2), F.S.
45 R. 61C-1.008, F.A.C.

STORAGE NAME: h0667.RRS                                                                                                        PAGE: 8
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        Section 1         Amends s. 468.8414, F.S., revising licensure requirements for mold assessors and
                          remediators.
        Section 2         Amends s. 469.004, F.S., revising licensure requirements for asbestos consultants and
                          contractors.
        Section 3         Amends s. 469.006, F.S., revising licensure requirements for asbestos consultants and
                          contractors.
        Section 4         Amends s. 489.514, F.S., removing a deadline for an electrical contractor licensing
                          provision.
        Section 5         Amends s. 509.032, F.S., providing rulemaking authority for electronic form submissions
                          for hotels and restaurants.
        Section 6         Amends s. 509.091, F.S, revising requirements for hotel and restaurant inspection
                          reports.
        Section 7         Amends s. 509.101, F.S., revising requirements for hotel guest registries.
        Section 8         Amends s. 509.241, F.S., revising fee schedules for public lodging establishments and
                          public food service establishments.
        Section 9         Amends s. 509.251, F.S., revising fee schedules for public lodging establishments and
                          public food service establishments.
        Section 10        Amends s. 548.043, F.S., revising participant weights differentials for certain pugilistic
                          exhibitions.
        Section 11        Reenacts s. 509.102, F.S.
        Section 12        Provides an effective date.

                             II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT

    A. FISCAL IMPACT ON STATE GOVERNMENT:

        1. Revenues:
             DBPR expects the following fiscal impacts on revenues: 46

             Division of Hotels and Restaurants
             Based on internal projections for FY 2022-23, the bill would reduce H&R’s license revenue by
             approximately 6%.

             Under the current license fee structure, about 58% of new applicants pay an initial license fee for
             some fraction of time and then pay H&R again to renew their license within the same fiscal year.

             Under the bill, H&R will collect a slightly larger initial license fee and a lower amount of renewal fees
             during the first year of licensure for each new license. The bill would eliminate half year prorating of
             license fees, replacing it with a full year which slightly increases revenue, but results in a true
             “annual license” from the start with no same fiscal year renewals.

             Overall, based on internal projections for FY 2022-23, the initiative would reduce license revenue by
             $1,652,302, or roughly 6%. The figures assume a 2.81% annual growth rate in H&R license
             revenue.
                                              FY22-23           FY23-24             FY24-25
                      Estimated Division    $25,634,761       $26,355,779         $27,097,076
                      License Revenue
                      Estimated             $(1,652,302)     $(1,698,775)         $(1,746,556)
                      Revenue
                      Reduction
                      % Change                  - 6%              - 6%                - 6%

             H&R is unable to predict how many licensees will choose a 2-year license or renewal, so it is
             unknown how the 2-year option would affect revenue.

46 DBPR, supra note 20, at 6-7.

STORAGE NAME: h0667.RRS                                                                                        PAGE: 9
DATE: 1/18/2022
             Division of Professions
             The fiscal impact is indeterminate. There is a maximum $399,056 of potential grandfathering fee
             revenue over the next three years based on the number of based on the potential number of
             applicants of currently registered local contractors.

         2. Expenditures:
             Division of Hotels & Restaurants
             There is an anticipated reduction in the 8% service charge to General Revenue due to a reduction
             in license fees and possible reduction in postage expenditures. 47

     B. FISCAL IMPACT ON LOCAL GOVERNMENTS:

         1. Revenues:
             Local governments could see an insignificant decrease in revenues associated with renewal and
             reciprocity fees if eligible registered contractors choose to apply for the grandfathering provision
             created in the bill for ECLB licensees.

         2. Expenditures:
             None.

     C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
         There may be a positive impact on the private sector by expanding the geographical scope of practice
         for those registered electrical contractors that choose to take advantage of the grandfathering provision.
         Thus, making more electrical contractors available to work across the state.

         The removal of the bond and credit limitation proof requirement will likely reduce costs to asbestos
         applicants.

         The bill will likely generally reduce license fees paid by food and lodging licensees during their first 12
         months of licensure. DBPR estimates licensees will save about $1.65 million in FY 22-23. The
         decrease comes from eliminating the staggered schedule and outdated prorating system which in turn
         provides new licensees with a full year of licensure. Under the current license fee structure, new
         applicants often pay for a new license and pay to renew their license within the same fiscal year. 48

     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:


47 DBPR, supra note 20, at 7.
48 Id.

STORAGE NAME: h0667.RRS                                                                                       PAGE: 10
DATE: 1/18/2022
       The bill will require DBPR to amend rules related to asbestos licensing standards and pugilistic
       exhibition requirements.

       The bill gives rulemaking authority to H&R to adopt rules relating to electronic communications and
       license issuance and renewal.

   C. DRAFTING ISSUES OR OTHER COMMENTS:
       None.


                          IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES




STORAGE NAME: h0667.RRS                                                                                   PAGE: 11
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           HB 667                                                                                                2022




    1                                         A bill to be entitled
    2               An act relating to the Department of Business and
    3               Professional Regulation; amending s. 468.8414, F.S.;
    4               requiring the department to certify for licensure
    5               qualified individuals who practice mold assessment or
    6               mold remediation and hold certain licenses issued by
    7               other states or territories; requiring applications to
    8               be filed within a specified timeframe after such
    9               licensure; amending s. 469.004, F.S.; providing an
10                  exception for the issuance of an asbestos consultant's
11                  license; requiring the department to certify asbestos
12                  consultants and asbestos contractors for licensure who
13                  meet certain exam and other state licensure
14                  requirements; requiring applications to be filed
15                  within a specified timeframe after such licensure;
16                  requiring asbestos consultants and asbestos
17                  contractors to complete certain courses; amending s.
18                  469.006, F.S.; revising the financial responsibility
19                  criteria the department must use when issuing
20                  consulting or contracting licenses; amending s.
21                  489.514, F.S.; removing a time limitation for applying
22                  for certain contracting licenses under certain
23                  provisions; amending s. 509.032, F.S.; authorizing the
24                  Division of Hotels and Restaurants of the department
25                  to adopt rules for certain electronic submissions and

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26               exemptions; amending s. 509.091, F.S.; requiring
27               licensees and licensed agents to provide the division
28               with e-mail addresses for contact with the division;
29               authorizing the division to deliver notices and
30               inspection reports by e-mail; amending s. 509.101,
31               F.S.; revising the maintenance requirements an
32               operator must meet for a transient establishment's
33               guest register; amending s. 509.241, F.S.; providing
34               for the expiration of public lodging establishment and
35               public food service establishment licenses;
36               authorizing the licenses to be renewed for specified
37               timeframes; requiring the division to provide forms
38               for license renewals and license applications;
39               amending s. 509.251, F.S.; revising the public lodging
40               establishment and public food service establishment
41               license fees to include an option for 2-year renewals;
42               limiting the fees the division may charge for a 2-year
43               license renewal; requiring license fees to be paid in
44               full at the time of application; amending s. 548.043,
45               F.S.; deleting a requirement limiting the types of
46               boxing exhibitions which require a specified maximum
47               difference in participant weights; reenacting s.
48               509.102(2), F.S., relating to mobile food dispensing
49               vehicles, to incorporate the amendment made to s.
50               509.251, F.S., in a reference thereto; providing an

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        HB 667                                                                                                2022




51               effective date.
52
53      Be It Enacted by the Legislature of the State of Florida:
54
55               Section 1.          Subsection (3) of section 468.8414, Florida
56      Statutes, is amended to read:
57               468.8414           Licensure.—
58               (3)         The department shall certify as qualified for a
59      license by endorsement an applicant who is of good moral
60      character, who has the insurance coverage required under s.
61      468.8421, and who:
62               (a)         Is qualified to take the examination as set forth in
63      s. 468.8413 and has passed a certification examination offered
64      by a nationally recognized organization that certifies persons
65      in the specialty of mold assessment or mold remediation , and the
66      department that has been approved the certification examination
67      by the department as being substantially equivalent to the
68      requirements of this part and s. 455.217; or
69               (b)         Holds a valid license to practice mold assessment or
70      mold remediation issued by another state or territory of the
71      United States if the criteria for issuance of the license were
72      substantially the same as the licensure criteria that is
73      established by this part as determined by the department; or
74               (c)         Has held a valid license to practice mold assessment
75      or mold remediation issued by another state or territory of the

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         HB 667                                                                                                2022




 76      United States for at least 10 years before the date of
 77      application. The application for licensure must be made either
 78      when the license in the other state or territory is active or
 79      within 2 years after such license was last active.
 80               Section 2.         Subsection (3) of section 469.004, Florida
 81      Statutes, is renumbered as subsection (4), subsection (1) is
 82      amended, and a new subsection (3) is added to that section, to
 83      read:
 84               469.004        License; asbestos consultant; asbestos
 85      contractor.—
 86               (1)         All asbestos consultants must be licensed by the
 87      department. Except for an asbestos consultant's license issued
 88      by endorsement as provided under subsection (3) or otherwise
 89      expressly provided by law, an asbestos consultant's license may
 90      be issued only to an applicant who holds a current, valid,
 91      active license as an architect issued under chapter 481; holds a
 92      current, valid, active license as a professional engineer issued
 93      under chapter 471; holds a current, valid, active license as a
 94      professional geologist issued under chapter 492; is a diplomat
 95      of the American Board of Industrial Hygiene; or has been awarded
 96      designation as a Certified Safety Professional by the Board of
 97      Certified Safety Professionals.
 98               (3)         The department shall certify as qualified for
 99      licensure by endorsement any individual applying for licensure
100      who has passed a written examination that meets the requireme nts

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         HB 667                                                                                                2022




101      of the United States Environmental Protection Agency Asbestos
102      Model Accreditation Plan, has held a valid license to practice
103      as an asbestos consultant or asbestos contractor issued by
104      another state or territory of the United States for at least 10
105      years before the date of application, and is applying for the
106      same or similar license in the state, subject to ss. 469.005(5)
107      and 469.006. The application for licensure must be made either
108      when the license in the other state or territory is active or
109      within 2 years after such license was last active. Asbestos
110      consultants and asbestos contractors must complete courses as
111      required by s. 469.005(2) or (3), respectively, to qualify for
112      licensure by endorsement.
113               Section 3.         Paragraph (c) of subsection (2) of sect ion
114      469.006, Florida Statutes, is amended to read:
115               469.006        Licensure of business organizations; qualifying
116      agents.—
117               (2)
118               (c)         As a prerequisite to the issuance of a license under
119      this section, the applicant shall submit the following:
120               1.      An affidavit on a form provided by the department
121      attesting that the applicant has obtained workers' compensation
122      insurance as required by chapter 440, public liability
123      insurance, and property damage insurance, in amounts determined
124      by department rule. The department shall establish by rule a
125      procedure to verify the accuracy of such affidavits based upon a

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         HB 667                                                                                                2022




126      random sample method.
127               2.      Evidence of financial responsibility. The department
128      shall adopt rules to determine financial responsibility which
129      shall specify grounds on which the department may deny
130      licensure. Such criteria must shall include, but not be limited
131      to, credit history and limits of bondability and credit.
132               Section 4.         Subsection (3) of section 489.514, Florida
133      Statutes, is amended to read:
134               489.514        Certification for registered contractors;
135      grandfathering provisions.—
136               (3)         An applicant must make application by November 1,
137      2021, to be licensed pursuant to this section.
138               Section 5.         Subsection (6) of section 509.032, Florida
139      Statutes, is amended to read:
140               509.032        Duties.—
141               (6)         RULEMAKING AUTHORITY.—The division shall adopt such
142      rules as are necessary to carry out the provisions of this
143      chapter. The division may adopt rules requiring electronic
144      submission of any form, document, or fee as required by this
145      chapter. The division may prescribe by rule requirements and
146      procedures for an individual to obtain an exemption due to a
147      technological or financial hardship.
148               Section 6.         Section 509.091, Florida Statutes, is amended
149      to read:
150               509.091        Notices; form and service.—

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         HB 667                                                                                                2022




151               (1)         All licensees and licensed agents must provide an e -
152      mail address to the division to function as the primary method
153      of contact for all communication with the division.
154               (2)         Each notice or inspection report served by the
155      division pursuant to this chapter must be in writing and must be
156      delivered personally by an agent of the division, be sent by e-
157      mail, or mailed by registered letter to the operator of the
158      public lodging establishment or public food service
159      establishment. If the operator refuses to accept service or
160      evades service or the agent is otherwise unable to effect
161      service after due diligence, the division may post such notice
162      or inspection report in a conspicuous place at the
163      establishment.
164               (2)         Notwithstanding subsection (1), the division may
165      deliver lodging inspection reports and food service inspection
166      reports to the operator of the public lodging establishment or
167      public food service establishment by electronic means.
168               Section 7.         Subsection (2) of section 509.101, Florida
169      Statutes, is amended to read:
170               509.101         Establishment rules; posting of notice; food
171      service inspection report; maintenance of guest register; mobile
172      food dispensing vehicle registry.—
173               (2)         It is the duty of each operator of a transient
174      establishment to maintain at all times a register of, signed by
175      or for guests who occupy rental units within the establishment,

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         HB 667                                                                                                2022




176      showing the dates upon which the rental units were occupied by
177      such guests and the rates charged for their occupancy. Each
178      operator shall maintain this register shall be maintained in
179      chronological order, shall make the register and available for
180      inspection by the division at any time, and may keep the
181      register in an electronic format. Operators need not make
182      available registers that which are more than 2 years old.
183               Section 8.         Section 509.241, Florida Statutes, is amended
184      to read:
185               509.241        Licenses required; exceptions.—
186               (1)         LICENSES; ANNUAL RENEWALS.—Each public lodging
187      establishment and public food service establishment shall obtai n
188      a license from the division. Such license may not be transferred
189      from one place or individual to another. It is shall be a
190      misdemeanor of the second degree, punishable as provided in s.
191      775.082 or s. 775.083, for such an establishment to operate
192      without a license. Local law enforcement shall provide immediate
193      assistance in pursuing an illegally operating establishment. The
194      division may refuse a license, or a renewal thereof, to any
195      establishment that is not constructed and maintained in
196      accordance with law and with the rules of the division. The
197      division may refuse to issue a license, or a renewal thereof, to
198      any establishment an operator of which, within the preceding 5
199      years, has been adjudicated guilty of, or has forfeited a bond
200      when charged with, any crime reflecting on professional

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         HB 667                                                                                                2022




201      character, including soliciting for prostitution, pandering,
202      letting premises for prostitution, keeping a disorderly place,
203      or illegally dealing in controlled substances as defined in
204      chapter 893, whether in this state or in any other jurisdiction
205      within the United States, or has had a license denied, revoked,
206      or suspended pursuant to s. 429.14. Licenses expire if not
207      renewed before the expiration date and may be renewed for 1 or 2
208      years. Licenses must shall be renewed using forms provided by
209      annually, and the division. The division shall adopt a rule
210      establishing procedures a staggered schedule for license
211      issuance and renewals. If any license expires while
212      administrative charges are pending against the license, the
213      proceedings against the license must shall continue to
214      conclusion as if the license were still in effect.
215               (2)         APPLICATION FOR LICENSE.—Each person who plans to open
216      a public lodging establishment or a public food service
217      establishment must shall apply for and receive a license from
218      the division using forms provided by the division before
219      commencing prior to the commencement of operation. A condominium
220      association, as defined in s. 718.103, which does not own any
221      units classified as vacation rentals or timeshare p rojects under
222      s. 509.242(1)(c) or (g) is not required to apply for or receive
223      a public lodging establishment license.
224               (3)         DISPLAY OF LICENSE.—Any license issued by the division
225      shall be conspicuously displayed in the office or lobby of the

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         HB 667                                                                                                2022




226      licensed establishment. Public food service establishments that
227      which offer catering services shall display their license number
228      on all advertising for catering services.
229               Section 9.         Subsections (1) and (2) of section 509.251,
230      Florida Statutes, are amended to read:
231               509.251        License fees.—
232               (1)         The division shall adopt, by rule, a schedule of fees
233      to be paid by each public lodging establishment as a
234      prerequisite to issuance or renewal of a license. Initial
235      license Such fees must shall be based on the number of rental
236      units in the establishment. License renewal fees must be based
237      on the number of rental units in the establishment and whether
238      the renewal is for 1 or 2 years. The aggregate fee per
239      establishment charged any public lodging establishment may not
240      exceed $1,000 for a 1-year license or $2,000 for a 2-year
241      license; however, the fees described in paragraphs (a) and (b)
242      may not be included as part of the aggregate fee subject to this
243      cap. Vacation rental units or timeshare projects within separate
244      buildings or at separate locations but managed by one licensed
245      agent may be combined in a single license application, and the
246      division must shall charge a license fee as if all units in the
247      application are in a single licensed establishment. The fee
248      schedule shall require an establishment which applies for an
249      initial license to pay the full license fee if application is
250      made during the annual renewal period or more than 6 months

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         HB 667                                                                                                2022




251      before the next such renewal period and one-half of the fee if
252      application is made 6 months or less before such period. The fee
253      schedule must shall include fees collected for the purpose of
254      funding the Hospitality Education Program, pursuant to s.
255      509.302. All fees, which are payable in full for each
256      application at the time regardless of when the application is
257      submitted.
258               (a)         Upon making initial application or an application for
259      change of ownership, the applicant shall pay to the division a
260      fee as prescribed by rule, not to exceed $50, in addition to any
261      other fees required by law, which shall cover all costs
262      associated with initiating regulation of the establishment.
263               (b)         A license renewal filed with the division after the
264      expiration date shall be accompanied by a delinquent fee as
265      prescribed by rule, not to exceed $50, in addition to the
266      renewal fee and any other fees required by law.
267               (2)         The division shall adopt, by rule, a schedule of fees
268      to be paid by each public food service establishment as a
269      prerequisite to issuance or renewal of a license. Initial
270      license fees must be based on the classification of the license.
271      License renewal fees must be based on the classification of the
272      license and whether a renewal is for 1 or 2 years. The fee
273      schedule must shall prescribe a base basic fee and additional
274      fees based on seating capacity and services offered. The
275      aggregate fee per establishment charged any public food service

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         HB 667                                                                                                2022




276      establishment may not exceed $400 for a 1-year license or $800
277      for a 2-year license; however, the fees described in paragraphs
278      (a) and (b) may not be included as part of the aggregate fee
279      subject to this cap. The fee schedule shall require an
280      establishment which applies for an initial license to pay the
281      full license fee if application is made during the annual
282      renewal period or more than 6 months before the next such
283      renewal period and one-half of the fee if application is made 6
284      months or less before such period. The fee schedule must shall
285      include fees collected for the purpose of funding the
286      Hospitality Education Program, pursuant to s. 509.302. All fees,
287      which are payable in full for each application at the time
288      regardless of when the application is submitted.
289               (a)         Upon making initial application or an application for
290      change of ownership, the applicant shall pay to the division a
291      fee as prescribed by rule, not to exceed $50, in addition to any
292      other fees required by law, which shall cover all costs
293      associated with initiating regulation of the establishment.
294               (b)         A license renewal filed with the division after the
295      expiration date shall be accompanied by a delinquent fee as
296      prescribed by rule, not to exceed $50, in addition to the
297      renewal fee and any other fees required by law.
298               Section 10.            Subsection (2) of section 548.043, Florida
299      Statutes, is amended to read:
300               548.043        Weights and classes, limitations; gloves.—

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         HB 667                                                                                                2022




301               (2)         The commission shall establish by rule the acceptable
302      difference in weight between participants; however, the maximum
303      difference in weight in boxing matches may shall not exceed 12
304      pounds, except matches in the cruiserweight and heavyweight
305      classes and exhibitions held solely for training purposes.
306               Section 11.            For the purpose of incorporating the amendment
307      made by this act to section 509.251, Florida Statutes, in a
308      reference thereto, subsection (2) of section 509.102, Florida
309      Statutes, is reenacted to read:
310               509.102        Mobile food dispensing vehicles; preemption. —
311               (2)         Regulation of mobile food dispensing vehicles
312      involving licenses, registrations, permits, and fees is
313      preempted to the state. A municipality, county, or other local
314      governmental entity may not require a separate license,
315      registration, or permit other than the license required under s.
316      509.241, or require the payment of any license, registration, or
317      permit fee other than the fee required under s. 509.251, as a
318      condition for the operation of a mobile food dispensing vehicle
319      within the entity's jurisdiction. A municipality, county, or
320      other local governmental entity may not prohibit mobile food
321      dispensing vehicles from operating within the entirety of the
322      entity's jurisdiction.
323               Section 12.            This act shall take effect July 1, 2022.




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HB 831
                                  HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #:     HB 831 Licensure Requirements for Land Surveyors and Mappers
SPONSOR(S): Mariano
TIED BILLS:       IDEN./SIM. BILLS: SB 1286

  REFERENCE                                                   ACTION                  ANALYST            STAFF DIRECTOR or
                                                                                                         BUDGET/POLICY CHIEF

  1) Regulatory Reform Subcommittee                                                   Thompson           Anstead

  2) Agriculture & Natural Resources Appropriations
     Subcommittee

  3) Commerce Committee


                                             SUMMARY ANALYSIS
Chapter 472, F.S., governs the practice of land surveying and mapping in Florida. Through the Florida Board of
Professional Surveyors and Mappers (Board), the Department of Agriculture and Consumer Services (DACS)
licenses and regulates professional surveyors and mappers in the state. Current law provides education and
experience prerequisites that must be met in order to be eligible to take the licensure examination to practice
as a surveyor and mapper.

Currently, applicants must have a bachelor’s degree in surveying and mapping and four or more years of
responsible work experience under a professional surveyor in order to take the licensure examination.
Applicants with a bachelor’s degree in a course of study other than surveying and mapping must have six or
more years of work experience under a professional surveyor, five of which must have been in responsible
charge of the work performed. These applicants must also complete a minimum of 25 semester hours from a
college or university approved by the board in surveying and mapping related subjects in order to take the
licensure examination.

In addition, exiled foreign-trained professionals must have graduated with an appropriate college degree from a
college or university and lawfully practiced the profession for at least three years in order to take the licensure
examination.

The bill:
    Allows applicants with an associate degree and six or more years of responsible work experience under
        a professional surveyor and mapper to be eligible to take the licensure examination.
    Allows applicants with a high school diploma or equivalent and six or more years of responsible work
        experience under a professional surveyor and mapper to be eligible to take the licensure examination.
    Allows applicants who hold a license to practice in another state with two years of experience in the
        active practice of mapping to be eligible to take the licensure examination.
    Allows applicants with a registered apprenticeship certificate in surveying and mapping and an
        experience record of two or more years in the active practice of mapping to be eligible to take the
        licensure examination.

The bill does not appear to have a fiscal impact on state or local government.

The effective date of the bill is July 1, 2022.




This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h0831.RRS
DATE: 1/18/2022
                                                       FULL ANALYSIS

                                               I. SUBSTANTIVE ANALYSIS

    A. EFFECT OF PROPOSED CHANGES:
         Background

         Land Surveying and Mapping

         Chapter 472, F.S., governs the practice of land surveying and mapping in Florida. Through the Florida
         Board of Professional Surveyors and Mappers (Board), the Department of Agriculture and Consumer
         Services (DACS) licenses and regulates professional surveyors and mappers in the state. 1

         These regulations include, but are not limited to:2
             Examination;
             Licensure, including certificates of authorization;
             Continuing education;
             Seals;
             Standards of practice;
             Prohibitions and penalties;
             Disciplinary guidelines;
             Investigative procedures;
             Power to administer oaths, take depositions, and issue subpoenas;
             Unlicensed activities; and
             Elevation certificates.

         According to DACS, licensed surveyors and mappers make exact measurements and determine
         property boundaries. They provide data relevant to the shape, contour, gravitation, location, elevation
         or dimension of land or land features on or near the earth's surface for engineering, mapmaking,
         mining, land evaluation, construction and other purposes. 3

         The Board has authority to adopt rules to implement ch. 472, F.S., subject to approval by DACS.4
         Effective October 1, 2009, the regulation of professional surveyors and mappers by the Board was
         transferred from the Department of Business and Professional Regulation (DBPR) to DACS.5

         According to DACS, there are 2,579 surveyors and mappers currently licensed in Florida.6

         Licensing Examinations

         Current law provides education and experience prerequisites that must be met in order to be eligible to
         take the licensure examination to practice as a surveyor and mapper or as a surveyor and mapper
         intern.7 All applicants must be approved by the Board prior to taking any examination.

         All pathways to licensure as a professional surveyor and mapper in Florida require at least a four-year
         college degree. The prerequisites to take the licensure examination to practice as a surveyor and
         mapper are as follows:


1 S. 472.007,   F.S.
2 See ch. 472, F.S.
3 Florida Department of Agriculture and Consumer Services, Consumer Services, Surveyors and Mappers,

https://www.fdacs.gov/Business -Services/Surveyors-and-Mappers (last visited Jan. 5, 2022).
4 S. 472.008, F.S.
5 Ch. 2009-66, Laws of Fla.
6 Email from Carlos Nathan, Legislative Affairs Director, Department of Agriculture and Consumer Services, Re: Surveyo rs Data,

(Jan. 6, 2022).
7 S. 472.013, F.S.
STORAGE NAME: h0831.RRS                                                                                                    PAGE: 2
DATE: 1/18/2022
                   A bachelor’s degree in surveying and mapping or in a similarly titled program:
                       o Four or more years of work experience under a professional surveyor;
                       o All four years of work experience must have been in responsible charge of the accuracy
                          and correctness of the surveying work performed; or
                   A bachelor’s degree in a course of study other than surveying and mapping:
                       o Six or more years of work experience under a professional surveyor;
                       o Five of the six years of experience must have been in responsible charge of the
                          accuracy and correctness of the surveying work performed.
                       o These applicants must also complete a minimum of 25 semester hours from a college or
                          university approved by the board in surveying and mapping subjects or in any
                          combination of courses in civil engineering, surveying, mapping, mathematics,
                          photogrammetry, forestry, or land law and the physical sciences.

          The following is a chart outlining these education and work experience prerequisites:

                         Type of Applicant        Type of Degree               Work Experience


                    Surveyor and Mapper       Surveying and Mapping        4 or more years
                    (Option 1)                Bachelor’s Degree            subordinate to surveyor
                                                                           and mapper and in
                                                                           “responsible charge” of
                                                                           work performed
                    Surveyor and Mapper       Non-Surveying and            6 or more years
                    (Option 2)                Mapping Bachelor’s           subordinate to surveyor
                                              Degree; and                  and mapper of which
                                              25 semester hours            5 years must be in
                                              surveying and mapping        “responsible charge” of
                                              subjects                     work performed


         The board, by rule,8 is authorized to establish fees for examination. The initial application and
         examination fee must not exceed $125 plus the actual per applicant cost to DACS to purchase the
         examination from the National Council of Engineering Examiners or a similar national organization. The
         examination fee must be sufficient to cover the cost of obtaining and administering the examination and
         is refundable if the applicant is found ineligible to sit for the examination. The application fee is
         nonrefundable.9

         Exiled Foreign-Trained Professionals

         Exiled foreign-trained professionals that wish to become surveyors and mappers must have graduated
         with an appropriate college degree from a college or university and must have lawfully practiced the
         profession for at least three years. Specifically, an exiled professional is eligible for examination if the
         exiled professional satisfies all of the following seven requirements:
              Immigrated to the United States after leaving the person’s home country because of political
                 reasons, provided the country is located in the Western Hemisphere and does not have
                 diplomatic relations with the United States;
              Applied to DACS and submits a fee;
              Was a resident of this state immediately preceding the person’s application;
              Demonstrated to DACS, through submission of documentation verified by the applicant’s
                 respective professional association in exile, that the applicant graduated with an appropriate
                 professional or occupational degree from a college or university.



8 R. 5J-17.070,   F.S.
9 S. 472.011,   F.S.
STORAGE NAME: h0831.RRS                                                                                        PAGE: 3
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                       o    However, DACS may not require receipt of any documentation from the Republic of
                            Cuba as a condition of eligibility under this section;
                   Lawfully practiced the profession for at least 3 years;
                   Prior to 1980, successfully completed an approved course of study pursuant to chapters 74-105
                    and 75-177, Laws of Florida; and
                   Presented a certificate demonstrating the successful completion of a continuing education
                    program, which offers a course of study that will prepare the applicant for the examination.
                        o The department shall develop rules for the approval of such programs for the board.10

         Upon request of a person who meets the requirements for foreign-trained professionals and submits an
         examination fee, DACS, for the Board, is required to conduct a written practical examination that tests
         the person’s current ability to practice the profession competently in accordance with the actual practice
         of the profession. The fees charged for the examinations are established by DACS, for the board, by
         rule,11 and must be sufficient to develop or to contract for the development of the examination and its
         administration, grading, and grade reviews.12

         Licensure by Endorsement

         The board is required to certify as qualified for a license by endorsement an applicant who, at the time
         of application, holds a valid license to practice surveying and mapping issued by another state or
         territory of the United States, if:
               The license was issued before July 1, 1999; the applicant has passed a national, regional, state,
                  or territorial licensing examination that is substantially equivalent to the examination required by
                  s. 472.013, F.S.; and the applicant has a specific experience record of at least eight years as a
                  subordinate to a registered surveyor and mapper in the active practice of surveying and
                  mapping, six years of which must be of a nature indicating that the applicant was in responsible
                  charge of the accuracy and correctness of the surveying and mapping work performed; or
               The criteria for issuance of the license by another state are substantially the same as the
                  licensure criteria that existed in Florida at the time the license was issued. 13

         All applicants for licensure by endorsement must also pass the Florida law and rules portion of the
         examination prior to licensure.14

         Florida law does not provide practicing surveyors and mappers from other states with less than a four-
         year degree a pathway to licensure unless they were licensed in the other state prior to July 1, 1999, or
         prior to Florida having a four-year degree requirement.

         Recent Trends

         According to the Bureau of Labor Statistics, in 2020 there were 45,000 working surveyors in the U.S.
         and 15,000 were 34 years of age or younger.15 Many in the profession are baby boomers who will be
         retiring and need to be replaced.16

         Some in the industry have indicated that a shortage may exist in the profession because of extensive
         education expectations and cost. Many state boards require a four-year degree before beginning work
         in the surveying field. These requirements might hinder those from pursuing a surveying path.



10 S. 472.001(1),   F.S.
11 R. 5J-17.210,   F.A.C.
12 S. 472.0101, F.S.
13 S. 472.015, F.S.
14 Id.
15 U.S. Bureau of Labor Statistics, Labor Force Statistics from the Current Population Survey, https://www.bls.gov/cps/cpsaat11b.pdf

(last visited Jan. 5, 2022).
16 U.S. Bureau of Labor Statistics, Occupational Outlook Handbook, https://www.bls.gov/ooh/architecture-and-

engineering/surveyors.htm#tab-6 (last visited Jan. 5, 2022).
STORAGE NAME: h0831.RRS                                                                                                     PAGE: 4
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         Nationally there appears to be a decline in the number of students graduating from surveying
         programs.17

         In Florida, the number of licensed surveyors has decreased by 305 licensees, from 2,884 licensees in
         2013 to 2,579 licensees in 2021.18

         Other States

         Each state and territory in the U.S. require those who perform the tasks defined as the practice of
         surveying to hold a professional surveying license. Most states require professional surveyors to meet
         a combination of requirements in education and exams.19

         Generally, while each state board for surveyors has its own requirements for licensure, potential
         licensees will follow a similar path of prerequisites to obtain a license in any state. Prerequisites
         typically include:
              An education requirement - Sometimes a high school diploma but some states also require a
                  four-year degree from an accredited surveying program.
              Successful completion of a Fundamentals of Surveying (FS) written examination - testing an
                  applicant’s breadth of understanding of basic surveying principles.
              Successful completion of a written Principles and Practice of Surveying (PS) examination -
                  testing an applicant's knowledge and competency of surveying skills.
              A requisite amount of surveying experience - which for most states is four years and is usually
                  under the supervision of a professional surveyor.20

         According to research, in 2020, the education and experience requirements in all 50 states appear to
         indicate the following patterns:
              Most states require at least a four-year degree and four years of professional experience.
              Typically, the extent of the degree is relative to the amount of professional experience required.
              Fourteen states provide an option that requires only a high school diploma (or do not have any
                 educational requirements) along with a certain amount of professional experience.
              Six states provide an option that does not require the completion of a degree, but requires the
                 completion of a certain amount of survey and mapping coursework and professional
                 experience.
              The degrees that are required are typically in a surveying and mapping curriculum, a curriculum
                 related to surveying and mapping, or an unrelated curriculum but with a certain amount of
                 coursework in a surveying related curriculum.
              States that allow postgraduate coursework in a surveying curriculum allow the coursework to be
                 substituted for professional experience.
              Twenty-eight states do not provide an education-less alternative method of licensure.21

         Effect of the Bill

         The bill creates new pathways for people to become licensed as a surveyor and mapper that maintain
         the prerequisite to take the licensure examination without requiring a bachelor’s degree.

         Specifically, the bill makes the following changes:



17 Nearterm Blog, Is There a Shortage of Land Surveyors? (Nov. 2, 2020),      https://nearterm.com/is-there-a-shortage-of-land-surveyors/
(last visited Jan. 5, 2022).
18 Email from Carlos Nathan, Legislative Affairs Director, Department of Agricultu re and Consumer Services, Re: Surveyors Data,

(Jan. 6, 2022).
19 The National Council of Examiners for Engineering and Surveying (NCEES), Surveying Licensure,

https://ncees.org/surveying/surveying-licensure/ (last visited Jan. 5, 2022).
20 The National Council of Examiners for Engineering and Surveying (NCEES), NCEES Member Licensing Boards,

https://ncees.org/member-licensing-boards/ (last visited Jan. 5, 2022).
21 NCEES, supra note 19.
STORAGE NAME: h0831.RRS                                                                                                         PAGE: 5
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       The bill changes the requirement related to obtaining a bachelor’s degree from a school that is
       “recognized by the board” to instead require the degree be “from an accredited college or university.”

       The bill creates additional pathways to be eligible to take the licensure examination for applicants who
       have:
           Received an associate degree with a minimum of 25 semester hours from an accredited
                college or university in surveying and mapping subjects or in any combination of courses in civil
                engineering, surveying, mapping, mathematics, photogrammetry, forestry, or land law and the
                physical science.
                    o Such applicants must have six or more years experience as a subordinate to a
                        professional surveyor and mapper in the active practice of surveying and mapping,
                        which experience is of a nature indicating that the applicant was in responsible charge.
           Received a high school diploma, or its equivalent and obtained a minimum of 25 semester
                hours from an accredited college or university in surveying and mapping subjects or in any
                combination of courses in civil engineering, surveying, mapping, mathematics, photogrammetry,
                forestry, or land law and the physical sciences.
                    o Such applicants must have a specific experience record of six or more years as a
                        subordinate to a professional surveyor and mapper in the active practice of surveying
                        and mapping, which experience is of a nature indicating that the applicant was in
                        responsible charge.

       The bill amends the licensure by endorsement requirements to be eligible to take the licensure
       examination for applicants who:
           Hold a valid license to practice surveying and mapping in another state, jurisdiction, or
                territory; and
           Have two years of experience in the active practice of surveying and mapping, which
                experience is of a nature indicating that the applicant was in responsible charge of the accuracy
                and correctness of the surveying and mapping work performed.

       The bill creates a pathway to be eligible to take the licensure examination for applicants who have:
           Received a registered apprenticeship certificate in surveying and mapping after completing a
                registered apprenticeship program approved by the Department of Education; and
           A specified experience record of two or more years as a subordinate to a professional
                surveyor and mapper in the active practice of surveying and mapping, which experience is of a
                nature indicating that the applicant was in responsible charge of the accuracy and correctness
                of the surveying and mapping work performed.

       Work experience acquired as a part of the education requirement may not be construed as experience
       in responsible charge.

       The bill defines the term "accredited college or university" as a college or university that has been
       accredited by the Southern Association of Colleges and Schools, another regional accrediting agency,
       the Accrediting Council for Independent Colleges and Schools, or an accrediting agency or association
       that is recognized by the database created and maintained by the United States Department of
       Education.

       The bill allows exiled foreign-trained professionals who have practiced the profession for three years to
       substitute this experience for the current education requirement.

   B. SECTION DIRECTORY:
       Section 1:     amends s. 472.005, F.S., defining the term "accredited college or university."

       Section 2:     amends s. 472.0101, F.S., relating to foreign-trained professionals, special examination
                      and license provisions.

       Section 3:     amends s. 472.013, F.S., relating to examinations, prerequisites.
STORAGE NAME: h0831.RRS                                                                                   PAGE: 6
DATE: 1/18/2022
         Section 4:      amends s. 472.003, F.S., conforming a cross-reference to changes made by the act.

         Section 5:      provides an effective date of July 1, 2022.


                            II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT

     A. FISCAL IMPACT ON STATE GOVERNMENT:

         1. Revenues:
            Indeterminate. The bill may have a positive impact on examination and licensing revenue, to the
            extent that additional individuals will take the licensure examination and become licensed. All funds
            collected are deposited into the DACS General Inspection Trust Fund. According to DACS, the bill
            will not have a fiscal impact on the Department.22

         2. Expenditures:
            Indeterminate. The bill may result in DACS processing additional applications for examination and
            licensure. However, DACS can likely absorb the related cost within existing resources. According to
            DACS, the bill will not have a fiscal impact on the Department. 23

     B. FISCAL IMPACT ON LOCAL GOVERNMENTS:

         1. Revenues:
            None.

         2. Expenditures:
            None.

     C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
         The bill relaxes experience and education prerequisites in order to be eligible to take the licensure
         examination to practice as a surveyor and mapper, which will lower the cost to become licensed, and
         allow more people to practice their chosen profession.

     D. FISCAL COMMENTS:
         None.


                                                      III. COMMENTS

     A. CONSTITUTIONAL ISSUES:

         1. Applicability of Municipality/County Mandates Provision:
           Not applicable. The bill does not appear to effect county or municipal governments.

         2. Other:
           None.

     B. RULE-MAKING AUTHORITY:



22 Department of Agriculture and Consumer Services, Agency Analysis of 2022 HB 831, p. 3 (Jan. 3, 2022).
23 Id.
STORAGE NAME: h0831.RRS                                                                                    PAGE: 7
DATE: 1/18/2022
         Agency rules may have to be amended to change current education and work experience
         requirements. Current law appears to provide sufficient rulemaking authority for DACS to implement the
         bill.

    C. DRAFTING ISSUES OR OTHER COMMENTS:
         Other Comments

         Current law provides seven prerequisites to the surveying and mapping licensure examination for
         foreign-trained professionals. One of these includes the following provision:

                  Prior to 1980, successfully completed an approved course of study pursuant to chapters 74-105
                  and 75-177, Laws of Florida.

         According to DACS, “this provision refers to a course of study that may never have existed. The
         chapter laws referenced in the provision provided for the licensing of an applicant who had been
         licensed under the laws of a foreign country under certain conditions.” DACS further provides:

                  “Back in 1974, the professional regulation statute was amended to give foreign born
                  professionals more access to Florida licenses. Chapter 74-105 provided for the licensing of an
                  applicant who had been licensed under the laws of a foreign country under certain conditions. If
                  5 or more applicants showed proof (a certificate of licensure or the certification by affidavit from
                  the respective foreign professional association) they lawfully practiced a profession in a foreign
                  country prior to July 1, 1974, they would be approved to take a one year course (continuing
                  education). Once they graduated, they could take a written exam the same as or similar to the
                  exam taken by other applicants. They had the option taking the test in their native language if
                  there were at least 5 applicants who wanted that. If the board already had a program for
                  granting licenses to foreign professionals, the applicants had the option of choosing which
                  alternative they wanted.

                  The next year Chapter 75-177 made some changes. The minimum number of applicants
                  needed to trigger the creation of the one year course was raised to 15; if the board already had
                  a program for granting licenses to foreign professionals, and the Department of Education
                  deemed it equivalent to the one year program, it would be in lieu of the one year program and
                  applicants wouldn’t have that option.

                  However, it is not known if PSM ever developed and offered that one year course.”24

         It is not likely this provision would apply to many applicants. Removing this outdated provision and
         revising other requirements may make this provision more inclusive to foreign-trained applicants.

                             IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES




24 Richard Kimsey, Director, Division of Consumer Services, Department of Agriculture and Consumer Services, FW: [External]   HB
821 Foreign-trained professionals, (Mar. 2, 2021).
STORAGE NAME: h0831.RRS                                                                                                  PAGE: 8
DATE: 1/18/2022
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           HB 831                                                                                                2022




    1                                         A bill to be entitled
    2               An act relating to licensure requirements for land
    3               surveyors and mappers; reordering and amending s.
    4               472.005, F.S.; defining the term "accredited college
    5               or university"; amending s. 472.0101, F.S.;
    6               authorizing an exiled professional to substitute a
    7               specified lawful practice of the profession for the
    8               education requirement of the examination; amending s.
    9               472.013, F.S.; revising education requirements for
10                  licensure to include an applicant who has received an
11                  associate degree under certain circumstances;
12                  requiring such education to be from an accredited
13                  college or university; providing that specified
14                  experience may be substituted for education
15                  requirements for licensure as a land surveyor or
16                  mapper; providing that an applicant who holds a valid
17                  license from another state, jurisdiction, or
18                  territory, and has certain experience in the practice
19                  of surveying and mapping may take the licensure
20                  examination to practice as a land surveyor or mapper
21                  in this state; providing that completion of a
22                  specified apprenticeship program may be substituted
23                  for education requirements for licensure as a land
24                  surveyor or mapper; amending s. 472.003, F.S.;
25                  conforming a cross-reference to changes made by the

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        HB 831                                                                                                2022




26               act; providing an effective date.
27
28      Be It Enacted by the Legislature of the State of Florida:
29
30               Section 1.         Section 472.005, Florida Statutes, is amended
31      to read:
32               472.005        Definitions.—As used in ss. 472.001-472.037, the
33      term:
34               (1)         "Accredited college or university" means a college or
35      university that has been accredited by the Southern Association
36      of Colleges and Schools, another regional accrediting agency,
37      the Accrediting Council for Independent Colleges and Schools, or
38      an accrediting agency or association that is recognized by the
39      database created and maintained by the United States Department
40      of Education.
41               (2)(1)        "Board" means the Board of Professional Surveyors
42      and Mappers.
43               (3)(14)        "Commissioner" means the Commissioner of
44      Agriculture.
45               (4)(15)        "Consumer member" means a person appointed to
46      serve on the board who is not, and never has been, a
47      professional surveyor or mapper in any jurisdiction or a member
48      of any closely related profession regulated by the board.
49               (5)(2)        "Department" means the Department of Agriculture
50      and Consumer Services.

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        HB 831                                                                                                2022




51               (6)(9)      "Employee" means a person who receives compensation
52      from and is under the supervision and control of an employer who
53      regularly deducts the F.I.C.A. and withholding tax and provides
54      workers' compensation, all as prescribed by law.
55               (7)(12)      "Legal entity" means a corporation, partnership,
56      association, or person practicing under a fictitious name who is
57      certified under s. 472.021.
58               (8)(7)      The term "License" means a registration,
59      certificate, or license issued by the department pursuant to
60      this chapter.
61               (9)(16)      "Licensee" means any person or business entity
62      that has been issued, pursuant to this chapter, a registration,
63      certificate, or license by the department.
64               (10)(11)         "Monument" means an artificial or natural object
65      that is permanent or semipermanent and used or presumed to
66      occupy any real property corner, any point on a boundary line,
67      or any reference point or other point to be used for horizontal
68      or vertical control.
69               (11)(8)      "Photogrammetrist" means any person who engages in
70      the practice of surveying and mapping using aerial or
71      terrestrial photography or other sources of images.
72               (12)(4)(a)        "Practice of surveying and mapping" means,
73      among other things, any professional service or work, the
74      adequate performance of which involves the application of
75      special knowledge of the principles of mathematics, the related

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         HB 831                                                                                                2022




 76      physical and applied sciences, and the relevant requirements of
 77      law for adequate evidence of the act of measuring, lo cating,
 78      establishing, or reestablishing lines, angles, elevations,
 79      natural and manmade features in the air, on the surface and
 80      immediate subsurface of the earth, within underground workings,
 81      and on the beds or surface of bodies of water, for the purpose
 82      of determining, establishing, describing, displaying, or
 83      interpreting the facts of size, volume, shape, topography, tidal
 84      datum planes, and legal or geodetic location or relocation.
 85               (b)         The practice of surveying and mapping also includes,
 86      but is not limited to, photogrammetric control; orientation of
 87      improved or unimproved real property and appurtenances and
 88      personal property attached thereto, including acreage and
 89      condominiums; the monumentation and remonumentation of property
 90      boundaries and subdivisions; the measurement of and preparation
 91      of plans showing existing improvements after construction; the
 92      layout of proposed improvements; the preparation of descriptions
 93      for use in legal instruments of conveyance of real property and
 94      property rights; the preparation of subdivision planning maps
 95      and record plats, as provided for in chapter 177; the
 96      determination of, but not the design of, grades and elevations
 97      of roads and land in connection with subdivisions or divisions
 98      of land; and the creation and perpetuation of alignments related
 99      to maps, record plats, field note records, reports, property
100      descriptions, and plans and drawings that represent them.

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         HB 831                                                                                                2022




101               (13)(6)      The term "Responsible charge" means direct control
102      and personal supervision of surveying and mapping work, but does
103      not include experience as a chainperson, rodperson,
104      instrumentperson, ordinary draftsperson, digitizer, scriber,
105      photo lab technician, ordinary stereo plotter operator, aerial
106      photo pilot, photo interpreter, and other positions of routine
107      work.
108               (14)(13)         "Retired professional surveyor and mapper" means
109      a person who has been licensed as a professional surveyor and
110      mapper by the board and who chooses to relinquish or not to
111      renew his or her license and applies to and is approved by the
112      board to use the title "Professional Surveyor and Mapper,
113      Retired."
114               (15)(3)      "Surveyor and mapper" includes the term
115      "professional surveyor and mapper" and means a person who is
116      registered to engage in the practice of surveying and mapping
117      under ss. 472.001-472.037. For the purposes of this statute, a
118      surveyor and mapper means a person who determines and displays
119      the facts of size, shape, topography, tidal datum planes, legal
120      or geodetic location or relation, and orientation of improved or
121      unimproved real property through direct measurement or from
122      certifiable measurement through accepted photogrammetric
123      procedures.
124               (16)(5)      The term "Surveyor and mapper intern" includes the
125      term "surveyor-mapper-in-training" and means a person who

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         HB 831                                                                                                2022




126      complies with the requirements provided by ss. 472.001-472.037
127      and who has passed an examination as provided by rules adopted
128      by the board.
129               (17)(10)           "Subordinate" means a person who performs work
130      under the direction, supervision, and responsible charge of a
131      person who is registered under this chapter.
132               Section 2.          Paragraphs (e) and (f) of subsection (1) of
133      section 472.0101, Florida Statutes are amended, and paragraph
134      (d) of that subsection is republished, to read:
135               472.0101           Foreign-trained professionals; special
136      examination and license provisions.—
137               (1)         When not otherwise provided by law, the department
138      shall by rule provide procedures under which exiled
139      professionals may be examined under this chapter. A person is
140      eligible for the examination if the exiled professional:
141               (d) Demonstrates to the department, through submission of
142      documentation verified by the applicant's respective
143      professional association in exile, that the applicant was
144      graduated with an appropriate professional or occupational
145      degree from a college or university. However, the department may
146      not require receipt of any documentation from the Republic of
147      Cuba as a condition of eligibility under this section;
148               (e)         A person who has lawfully practiced the profession for
149      at least 3 years may substitute such practice of the profession
150      for the education requirement under paragraph (d);

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         HB 831                                                                                                2022




151               (f)         Before Prior to 1980, successfully completed an
152      approved course of study pursuant to chapters 74-105 and 75-177,
153      Laws of Florida; and
154               Section 3.         Subsection (2) of section 472.013, Florida
155      Statutes, is amended to read:
156               472.013        Examinations, prerequisites.—
157               (2)         An applicant shall be entitled to take the licensure
158      examination to practice in this state as a surveyor and mapper
159      if the applicant is of good moral character and has satisfied
160      one of the following requirements:
161               (a)         The applicant has received a bachelor's degree, its
162      equivalent, or higher in surveying and mapping or a similarly
163      titled program, including, but not limited to, geomatics,
164      geomatics engineering, and land surveying, from an accredited a
165      college or university recognized by the board and has a specific
166      experience record of 4 or more years as a subordinate to a
167      professional surveyor and mapper in the active practice of
168      surveying and mapping, which experience is of a nat ure
169      indicating that the applicant was in responsible charge of the
170      accuracy and correctness of the surveying and mapping work
171      performed. Work experience acquired as a part of the education
172      requirement may not be construed as experience in responsible
173      charge.
174               (b)         The applicant has received a bachelor's degree, its
175      equivalent, or higher in a course of study, other than in

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         HB 831                                                                                                2022




176      surveying and mapping, at an accredited college or university
177      and has a specific experience record of 6 or more years as a
178      subordinate to a registered surveyor and mapper in the active
179      practice of surveying and mapping, which experience is 5 years
180      of which shall be of a nature indicating that the applicant was
181      in responsible charge of the accuracy and correctness of the
182      surveying and mapping work performed. The applicant must have
183      completed a minimum of 25 semester hours from an accredited a
184      college or university approved by the board in surveying and
185      mapping subjects or in any combination of courses in civil
186      engineering, surveying, mapping, mathematics, photogrammetry,
187      forestry, or land law and the physical sciences. Any of the
188      required 25 semester hours of study completed not as a part of
189      the bachelor's degree, its equivalent, or higher may be approved
190      at the discretion of the board. Work experience acquired as a
191      part of the education requirement may not be construed as
192      experience in responsible charge.
193               (c)         The applicant has received an associate degree and has
194      a specific experience record of 6 or more years as a subordinate
195      to a professional surveyor and mapper in the active practice of
196      surveying and mapping, which experience is of a nature
197      indicating that the applicant was in responsible charge of the
198      accuracy and correctness of the surveying and mapping work
199      performed. The applicant must have completed a minimum of 25
200      semester hours from an accredited a college or university in

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         HB 831                                                                                                2022




201      surveying and mapping subjects or in any combination of courses
202      in civil engineering, surveying, mapping, mathematics,
203      photogrammetry, forestry, or land law and the physical sciences.
204      Work experience acquired as a part of the education requirement
205      may not be construed as experience in responsible charge.
206               (d)         The applicant has received a high school diploma, or
207      its equivalent, and has a specific experience record of 6 or
208      more years as a subordinate to a professional surveyor and
209      mapper in the active practice of surveying and mapping, which
210      experience is of a nature indicating that the applicant was in
211      responsible charge of the accuracy and correctness of the
212      surveying and mapping work performed. The applicant must have
213      completed a minimum of 25 semester hours from an accredited
214      college or university in surveying and mapping subjects or in
215      any combination of courses in civil engineering, surveying,
216      mapping, mathematics, photogrammetry, forestry, or land law and
217      the physical sciences. Work experience acquired as a part of the
218      education requirement may not be construed as experience in
219      responsible charge.
220               (e)         The applicant holds a valid license to practice
221      surveying and mapping in another state, jurisdiction, or
222      territory, and has 2 years of experience in the active practice
223      of surveying and mapping, which experience is of a nature
224      indicating that the applicant was in responsible charge of the
225      accuracy and correctness of the surveying and mapping work

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         HB 831                                                                                                2022




226      performed.
227               (f)         The applicant has received a registered apprenticeship
228      certificate in surveying and mapping after completing a
229      registered apprenticeship program approved by the Department of
230      Education and has a specified experience record of 2 or more
231      years as a subordinate to a professional surveyor and mapper in
232      the active practice of surveying and mapping, which experience
233      is of a nature indicating that the applicant was in responsible
234      charge of the accuracy and correctness of the surveying and
235      mapping work performed. Work experience acquired as a part of
236      the education requirement may not be construed as experience in
237      responsible charge.
238               Section 4.         Subsection (4) of section 472.003, Florida
239      Statutes, is amended to read:
240               472.003        Persons not affected by ss. 472.001-472.037.—
241      Sections 472.001-472.037 do not apply to:
242               (4)         Persons employed by county property appraisers, as
243      defined at s. 192.001(3), and persons employed by the Department
244      of Revenue, to prepare maps for property appraisal purposes
245      only, but only to the extent that they perform mapping services
246      which do not include any surveying activities as described in s.
247      472.005 s. 472.005(4)(a) and (b).
248               Section 5.         This act shall take effect July 1, 2022.




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                       REGULATORY REFORM SUBCOMMITTEE

                              HB 831 by Rep. Mariano
              Licensure Requirements for Land Surveyors and Mappers

                                 AMENDMENT SUMMARY
                                    January 20, 2022


Amendment 1 by Rep. Mariano (lines 30-131):
  • Removes the definition for “accredited colleges and universities” from the bill.

Amendment 2 by Rep. Mariano (lines 164-214):
  • Specifies that the colleges and universities referenced in the bill must be accredited by
     an accrediting body recognized by the United States Department of Education.
                                                COMMITTEE/SUBCOMMITTEE AMENDMENT
                                                         Bill No. HB 831   (2022)
       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:         Regulatory Reform
 2     Subcommittee
 3     Representative Mariano offered the following:
 4
 5          Amendment (with title amendment)
 6          Remove lines 30-131
 7
 8
 9             -----------------------------------------------------
10                          T I T L E    A M E N D M E N T
11          Remove lines 3-5 and insert:
12     surveyors and mappers; amending s. 472.0101, F.S.;




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                                    Page 1 of 1
                                           COMMITTEE/SUBCOMMITTEE AMENDMENT
                                                    Bill No. HB 831   (2022)
       Amendment No. 2




            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:    Regulatory Reform
 2     Subcommittee
 3     Representative Mariano offered the following:
 4
 5          Amendment
 6          Remove lines 164-214 and insert:
 7     geomatics engineering, and land surveying, from a college or
 8     university accredited by an accrediting body recognized by the
 9     United States Department of Education recognized by the board
10     and has a specific experience record of 4 or more years as a
11     subordinate to a professional surveyor and mapper in the active
12     practice of surveying and mapping, which experience is of a
13     nature indicating that the applicant was in responsible charge
14     of the accuracy and correctness of the surveying and mapping
15     work performed. Work experience acquired as a part of the


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                                  Page 1 of 3
                                           COMMITTEE/SUBCOMMITTEE AMENDMENT
                                                    Bill No. HB 831   (2022)
       Amendment No. 2


16     education requirement may not be construed as experience in
17     responsible charge.
18          (b)   The applicant has received a bachelor's degree, its
19     equivalent, or higher in a course of study, other than in
20     surveying and mapping, at a an accredited college or university
21     accredited by an accrediting body recognized by the United
22     States Department of Education and has a specific experience
23     record of 6 or more years as a subordinate to a registered
24     surveyor and mapper in the active practice of surveying and
25     mapping, which experience is 5 years of which shall be of a
26     nature indicating that the applicant was in responsible charge
27     of the accuracy and correctness of the surveying and mapping
28     work performed. The applicant must have completed a minimum of
29     25 semester hours from a college or university accredited by an
30     accrediting body recognized by the United States Department of
31     Education approved by the board in surveying and mapping
32     subjects or in any combination of courses in civil engineering,
33     surveying, mapping, mathematics, photogrammetry, forestry, or
34     land law and the physical sciences. Any of the required 25
35     semester hours of study completed not as a part of the
36     bachelor's degree, its equivalent, or higher may be approved at
37     the discretion of the board. Work experience acquired as a part
38     of the education requirement may not be construed as experience
39     in responsible charge.
40          (c)   The applicant has received an associate degree and has
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                                   Page 2 of 3
                                           COMMITTEE/SUBCOMMITTEE AMENDMENT
                                                    Bill No. HB 831   (2022)
       Amendment No. 2


41     a specific experience record of 6 or more years as a subordinate
42     to a professional surveyor and mapper in the active practice of
43     surveying and mapping, which experience is of a nature
44     indicating that the applicant was in responsible charge of the
45     accuracy and correctness of the surveying and mapping work
46     performed. The applicant must have completed a minimum of 25
47     semester hours from a college or university accredited by an
48     accrediting body recognized by the United States Department of
49     Education in surveying and mapping subjects or in any
50     combination of courses in civil engineering, surveying, mapping,
51     mathematics, photogrammetry, forestry, or land law and the
52     physical sciences. Work experience acquired as a part of the
53     education requirement may not be construed as experience in
54     responsible charge.
55          (d)   The applicant has received a high school diploma, or
56     its equivalent, and has a specific experience record of 6 or
57     more years as a subordinate to a professional surveyor and
58     mapper in the active practice of surveying and mapping, which
59     experience is of a nature indicating that the applicant was in
60     responsible charge of the accuracy and correctness of the
61     surveying and mapping work performed. The applicant must have
62     completed a minimum of 25 semester hours from a college or
63     university accredited by an accrediting body recognized by the
64     United States Department of Education in surveying and mapping
65     subjects or in
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                                   Page 3 of 3
HB 1033
                                  HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #:     HB 1033 Homeowners' Associations
SPONSOR(S): Beltran
TIED BILLS:       IDEN./SIM. BILLS:

    REFERENCE                                                   ACTION                  ANALYST            STAFF DIRECTOR or
                                                                                                           BUDGET/POLICY CHIEF

    1) Regulatory Reform Subcommittee                                                   Brackett           Anstead

    2) Civil Justice & Property Rights Subcommittee

    3) State Administration & Technology
       Appropriations Subcommittee

    4) Commerce Committee

                                                     SUMMARY ANALYSIS
The Division of Florida Condominiums, Timeshares, and Mobile Homes, within the Department of Business
and Professional Regulation (DBPR), broadly regulates condominium and cooperative associations and has
limited regulatory authority over homeowner’s associations (HOA).

Within the Division is Office of the Condominium Ombudsman. HOAs do not have an Ombudsman. The
Condominium Ombudsman is an attorney who is a neutral resource for unit owners and associations. The
Ombudsman is authorized to:
    Assist with the resolution of disputes between condominiums and unit owners;
    Issue reports and recommendations to the Governor, the Division, and the Legislature;
    Make recommendations to the Division for changes to its rules and procedures for handling complaints;
    Act as a liaison between the Division, unit owners, and associations;
    Develop policies and procedures to help affected parties understand their rights and responsibilities;
    Monitor and review procedures and disputes concerning elections and meetings;
    Provide resources to assist board members and officers to carry out their powers and duties; and
    Encourage and facilitate voluntary meetings between unit owners, board members, managers, and
        other affected parties to assist in resolving disputes.

The Condominium Act also provides for an arbitration program within the Division for certain disputes between
unit owners and condominium and cooperative associations. An arbitrator’s final decision is not binding, and
any party may further pursue a matter in civil court.

The HOA Act requires certain disputes between a parcel owner and an HOA to go through pre-suit mediation
before a party can file an action in civil court. Condominium and cooperative disputes eligible for arbitration
may go through pre-suit mediation in lieu of arbitration, but HOA disputes required to go through pre-suit
mediation may not go through arbitration unless pre-suit mediation fails and all parties agree to arbitration.

The bill creates an Office of the HOA Ombudsman, which is located in DBPR. The HOA Ombudsman is an
attorney who is a neutral resource for parcel owners and HOAs. The HOA Ombudsman’s authority is similar to
the authority of the Condominium Ombudsman.

The bill also allows certain HOA disputes, which are required to go through pre-suit mediation, to go through
arbitration within the Division in lieu of pre-suit mediation.

The bill may have a fiscal impact on state government. The bill is not expected to have a fiscal impact on local
governments.

The bill provides for an effective date of July 1, 2022.



This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h1033a.RRS
DATE: 1/18/2022
                                                     FULL ANALYSIS

                                               I. SUBSTANTIVE ANALYSIS

        A. EFFECT OF PROPOSED CHANGES:
          Community Associations

          Condominiums

          A condominium is a form of real property ownership created pursuant to ch. 718, F.S., the
          Condominium Act, comprised of units which may be owned by one or more persons along with an
          undivided right of access to common elements. 1 A condominium is created by recording a declaration
          of condominium in the public records of the county where the condominium is located. 2 A declaration
          governs the relationships among condominium unit owners and the condominium association.
          Specifically, a declaration of condominium may include covenants and restrictions concerning the use,
          occupancy, and transfer of the units permitted by law with reference to real property. All unit owners are
          members of the condominium association, an entity responsible for the operation and maintenance of
          the common elements owned by the unit owners. The condominium association is overseen by an
          elected board of directors, commonly referred to as a “board of administration.” The board enacts
          bylaws which govern the association’s administration.

          The Florida Division of Condominiums, Timeshares and Mobile Homes (Division), within the
          Department of Business and Professional Regulation (DBPR), provides consumer protection for Florida
          residents living in regulated condominiums and other communities through education, complaint
          resolution, mediation and arbitration, and developer disclosure. The Division has regulatory authority
          over the following business entities and individuals:

                    Condominium Associations;
                    Cooperative Associations;
                    Florida Mobile Home Parks and related associations;
                    Vacation Units and Timeshares;
                    Yacht and Ship Brokers and related business entities; and
                    Homeowners' Associations (limited to arbitration of election and recall disputes).

          The Division is the agency charged with ensuring that condominium associations comply with the
          requirements of the Condominium Act.3 The Division does this by a variety means including enforcing
          the Condominium Act, providing declaratory statements, providing educational programs, providing
          dispute resolution, and housing the office of the Condominium Ombudsman.4

          Cooperatives

          A cooperative is a form of property ownership created under ch. 719, F.S., in which the real property is
          owned by the cooperative association and individual units are leased to the residents, who own shares
          in the association.5 The lease payment amount is the pro-rata share of the cooperative’s operational
          expenses. Cooperatives operate similarly to condominiums and the laws regulating cooperatives are
          largely identical to those regulating condominiums.




1 S. 718.103(11), F.S.
2 S. 718.104(2), F.S.
3 S. 718.501, F.S.
4 Id.
5 S. 719.103(2) and (26), F.S.

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         Homeowners’ Associations

         A homeowners’ association (HOA) is an association of residential property owners in which voting
         membership is made up of parcel owners and membership is a mandatory condition of parcel
         ownership, and which is authorized to impose assessments that, if unpaid, may become a lien on the
         parcel.6 Only HOAs whose covenants and restrictions include mandatory assessments are regulated by
         ch. 720, F.S., the Homeowners’ Association Act (HOA Act). Like a condominium, an HOA is
         administered by an elected board of directors. The powers and duties of an HOA include the powers
         and duties provided in the HOA Act, and in the association’s governing documents, which include the
         recorded covenants and restrictions, together with the bylaws, articles of incorporation, and duly
         adopted amendments to those documents.7

         No state agency has direct oversight over HOAs. However, Florida law provides for a mandatory
         binding arbitration program, administered by the Division, for certain election and recall disputes.8

         Ombudsman – Current Situation

         Within the Division is the Office of the Condominium Ombudsman. The Condominium Ombudsman is
         an attorney admitted to practice in Florida who is appointed by the Governor, and is a neutral resource
         for unit owners and associations. The Condominium Ombudsman may employ professional and clerical
         staff as necessary to efficiently operate the ombudsman’s office.9

         An officer or full-time employee of the Condominium Ombudsman’s office may not:10

                    actively engage in any other business or profession that directly or indirectly relates to or
                     conflicts with his or her work in the ombudsman’s office;
                    serve as the representative of any political party, executive committee, or other governing body
                     of a political party;
                    serve as an executive, officer, or employee of a political party;
                    receive remuneration for activities on behalf of any candidate for public office; or
                    engage in soliciting votes or other activities on behalf of a candidate for public office

         The Condominium Ombudsman or any employee of his or her office may not become a candidate for
         election to public office unless he or she first resigns from his or her office or employment.11

         The Condominium Ombudsman must maintain his or her principal office at a place convenient to the
         offices of the Division which will enable the Condominium Ombudsman to expeditiously carry out the
         duties and functions of his or her office. The Condominium Ombudsman may establish branch offices
         elsewhere in the state with the approval of the Governor. The Office of the Condominium Ombudsman
         is funded by the Division’s Trust Fund.12

         The Condominium Ombudsman is authorized to:13

                    Have access to and use all of the files and records of the Division.
                    Assist with the resolution of disputes between associations and unit owners that is not within the
                     jurisdiction of the Division.
                    Issue reports and recommendations to the Governor, the Division, the Advisory Council on
                     Condominiums, and the Legislature on any matter or subject within the jurisdiction of the
                     Division.

6 S. 720.301(9), F.S.
7 See generally ch. 720, F.S.
8 S. 720.311, F.S.
9 Ss. 718.5011(1), and 718.5012(2), F.S.
10 S. 718.5011(2), F.S.
11 Id.
12 Ss. 718.5011 and 718.5014, F.S.
13 Ss. 718.5011, and 718.5012, F.S.

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                Make recommendations to the Division for changes in rules and procedures for the filing,
                 investigation, and resolution of complaints.
                Act as a liaison among the Division, unit owners, community association managers (CAMs),14
                 and boards of directors, and other affected parties.
                     o The Condominium Ombudsman must develop policies and procedures to assist unit
                         owners, boards of directors, CAMs, and other affected parties to understand their rights
                         and responsibilities under the Condominium Act and their condominium documents.
                     o The Condominium Ombudsman must coordinate and assist in the preparation and
                         adoption of educational and reference material, and endeavor to coordinate with private
                         or volunteer providers of these services, so the materials are widely available.
                Develop policies and procedures to help affected parties understand their rights and
                 responsibilities.
                Monitor and review procedures and disputes concerning elections or meetings, including
                 recommending that the Division pursue enforcement action.
                Provide resources to assist board members and officers to carry out their powers and duties
                 consistent with the Condominium Act, and their governing documents.
                Encourage and facilitate voluntary meetings between unit owners, board members, CAMs, and
                 other affected parties to assist in resolving a dispute before a person submits a dispute for a
                 formal or administrative remedy.

        The Condominium Ombudsman must appoint a board of director election monitor, when fifteen percent
        of the total voting interests or six unit owners, whichever is greater, petition the Condominium
        Ombudsman to appoint an election monitor to attend the annual meeting and conduct the election of
        board members.15

        The Condominium Ombudsman must appoint a division employee, a person or persons specializing in
        condominium election monitoring, or an attorney licensed to practice in this state as the election
        monitor. The condominium association is responsible for all costs associated with the election
        monitoring process. 16

        Currently, there is no Ombudsman for HOAs, and the Office of the Condominium Ombudsman has no
        jurisdiction or authority over HOAs.

        Ombudsman – Effect of the Bill

        The bill creates an Office of the HOA Ombudsman within DBPR, which is similar to the Office of the
        Condominium Ombudsman.

        The HOA Ombudsman must be an attorney admitted to practice in Florida who is appointed by the
        Governor, and is a neutral resource for parcel owners and HOAs. The HOA Ombudsman may employ
        professional and clerical staff as necessary to efficiently operate the Ombudsman’s office.

        An officer or full-time employee of the HOA Ombudsman’s office may not:

                actively engage in any other business or profession that directly or indirectly relates to or
                 conflicts with his or her work in the ombudsman’s office;
                serve as the representative of any political party, executive committee, or other governing body
                 of a political party;
                serve as an executive, officer, or employee of a political party;
                receive remuneration for activities on behalf of any candidate for public office; or
                engage in soliciting votes or other activities on behalf of a candidate for public office

14 Management companies and managers of residential condominiums with more than ten units or having an annual budget in excess

of $100,000 are required to have a community association manager license from DBPR. The Community Association Management
Practice Act (Part VIII of ch. 468, F.S.) governs the licensure and regulation of CAMs.
15 S. 718.5012(10), F.S.
16 Id.

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        The HOA Ombudsman or any employee of his or her office may not become a candidate for election to
        public office unless he or she first resigns from his or her office or employment.

        The HOA Ombudsman must maintain his or her principal office at a place convenient to DBPR, which
        will enable the HOA Ombudsman to expeditiously carry out the duties and functions of his or her office.
        The HOA Ombudsman may establish branch offices elsewhere in the state with the approval of the
        Governor. The Office of the HOA Ombudsman is funded by the General Appropriations Act.

        The authority of the HOA Ombudsman is similar to the Condominium Ombudsman. The HOA
        Ombudsman is authorized to:

                Have access to and use of all files and records of an HOA.
                Issue reports and recommendations to the Governor, DBPR, and the Legislature on any matter
                 or subject within the jurisdiction of the HOA Act.
                Act as a liaison between DBPR, parcel owners, CAMs, boards of directors, and other affected
                 parties.
                     o The HOA Ombudsman must develop policies and procedures to assist parcel owners,
                         boards of directors, CAMs, and other affected parties to understand their rights and
                         responsibilities under the HOA Act and their governing documents.
                     o The HOA Ombudsman must coordinate and assist in the preparation and adoption of
                         educational and reference material, and endeavor to coordinate with private or volunteer
                         providers of these services, so the materials are widely available.
                Monitor and review procedures and disputes concerning elections or meetings.
                Make recommendations to DBPR for changes in rules and procedures for the filing,
                 investigation, and resolution of complaints filed by parcel owners, associations, and CAMs.
                Provide resources to assist board members and officers to carry out their powers and duties
                 consistent with the HOA Act, and their governing documents;
                Encourage and facilitate voluntary meetings between parcel owners, board members, CAMs,
                 and other affected parties to assist in resolving a dispute before a person submits a dispute for
                 a formal or administrative remedy.
                Assist with the resolution of disputes between parcel owners and the HOA or between parcel
                 owners when the dispute is not within the jurisdiction of DBPR to resolve.

        Alternative Dispute Resolution – Current Situation

        Condominiums and Cooperatives

        The Condominium Act and Cooperative Act provides for an arbitration program within the Division for
        certain disputes between unit owners and associations. The Division employs full time arbitrators and
        certifies private attorneys for mandatory nonbinding arbitration. An arbitrator’s final decision is not
        binding, and any party may further pursue a matter in civil court. However, the parties may agree to be
        bound by the arbitrator’s decision.17

        The Condominium Act and Cooperative Act require a party to petition for arbitration with the Division
        before filing a complaint in civil court for the following disputes between an association and a unit
        owner:18

                Termination of an association.
                Recall of a board member.
                Disputes where the board:
                    o Requires an owner to take an action or refrain from any action involving the owner’s unit.
                    o Alters or adds to a common element.

17 Ss. 718.1255, and 719.1255, F.S; DBPR Condominium Unit-Owner Rights and Responsib ilities,

http://www.myfloridalicense.com/dbpr/lsc/documents/CondominiumUORREnglishMaster4162014.pdf (last visited Jan. 15, 2022).
18 Id.

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                       o     Fails to provide proper notice for meetings or other actions.
                       o     Fails to properly conduct elections.
                       o     Fails to properly notice meetings.
                       o     Fails to allow inspection of the association’s records.

         The Division does not have jurisdiction for arbitration for the following disputes between a unit owner
         and an association:19

                 Disagreements regarding the interpretation or enforcement of a warranty;
                 The charging of a fee or assessment;
                 The eviction or other removal of a tenant from unit;
                 Alleged breaches of fiduciary duty by one or more board members; and
                 Claims for damages to a unit based upon the alleged failure of the association to maintain the
                  common elements or condominium property.

         The cost to petition the Division for arbitration is a $50 filing fee. The petition must include the specific
         nature of the dispute, demand for relief, and include proof that the petitioner provided the opposing
         party a notice of intent to petition for arbitration. Upon receipt of a petition for arbitration, the Division
         must determine if the dispute qualifies for arbitration. If the dispute qualifies for arbitration then the
         arbitrator must conduct the arbitration within 30 days.20 The arbitrator must render his or her decision
         within 30 days of the arbitration.21

         At the request of any party to the arbitration, an arbitrator must issue subpoenas for the attendance of
         witnesses and the production of books, records, documents, and other evidence and any party on
         whose behalf a subpoena is issued may apply to a court for orders compelling such attendance and
         production.22

         Either party in an arbitration proceeding may petition the arbitrator to have the proceeding sent to
         mediation. Upon the request for mediation, the arbitrator must contact all parties in the proceeding to
         determine if mediation is agreeable. An arbitrator may refer a proceeding to mediation even if all parties
         do not agree to mediation.23

         If a matter is referred to mediation, the parties must select a mutually agreeable mediator. The
         arbitrator must provide a list of available mediators. Mediation is conducted in accordance with the
         Florida Rules of Civil Procedure. The parties in a mediation are required to equally share the costs of
         mediation.24

         An arbitration decision is not final unless the parties have agreed to be bound by the decision, or if a
         civil complaint is not filed within 30 days. The right to file for a trial de novo entitles the parties to file a
         complaint in the appropriate trial court for a judicial resolution of the dispute. 25

         The prevailing party in an arbitration proceeding must be awarded the costs of the arbitration and
         reasonable attorney fees in an amount determined by the arbitrator. This includes the costs and
         reasonable attorney fees incurred in the arbitration proceeding as well as the costs and reasonable
         attorney fees incurred in preparing for and attending any scheduled mediation. 26

         During the 2020 Legislative Session, the Legislature provided that in lieu of nonbinding arbitration,
         parties to a dispute may elect to resolve disputes through pre-suit mediation in the same manner of
         HOA dispute resolution.27
19 Id.
20 Id.
21 Id.
22 Id.
23 Id.
24 Id.
25 Id.
26 Id.
27 Ch. 21-99, Laws of Fla.

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         HOAs

         Instead of arbitration, the HOA Act provides for a pre-suit mediation program for certain disputes
         between parcel owners and HOAs. The HOA act does not require mandatory arbitration by the Division
         unless the dispute involves elections or recalls of board members. 28

         The following disputes between parcel owners and HOAs must go to pre-suit mediation before a party
         can file suit in civil court:29

                  Disputes involving the use of or changes to an owner’s parcel or the common areas;
                  Covenant disputes;
                  Disputes regarding meetings of the board or committees of the board;
                  Disputes involving the meeting of owners that do not involve elections;
                  Access to the official records disputes; and
                  Disputes regarding amendments to the governing documents.

         The following disputes are not subject to presuit mediation: 30

                  Disputes involving the collection of assessments, fines, or other financial obligations; and
                  Actions to enforce a prior mediation agreement.

         An aggrieved party initiates the mediation proceedings by serving a written petition for mediation to the
         opposing party. The petition must be in the format provided in statute and must identify the specific
         nature of the dispute and the basis for the alleged violations. The written offer must include five certified
         mediators that the aggrieved party believes to be neutral. If emergency relief is required then a
         temporary injunction may be sought in court prior to the mediation. 31

         The opposing party has 20 days to respond. If the opposing party fails to respond or refuses to mediate
         then the aggrieved party may proceed to civil court. If the parties agree to mediation, the mediator must
         hold the mediation within 90 days of the petition being sent to the opposing parties. The parties share
         the costs of mediation except for the cost of attorney’s fees. Mediation is confidential and persons who
         are not parties to the dispute may not attend the mediation. 32

         If mediation is not successful in resolving all the issues between the parties, the parties may proceed to
         civil court or may elect to enter into binding or non-binding arbitration by the Division. All parties to the
         dispute must agree to enter into arbitration by the Division.33

         According to a 2020 DBPR analysis, arbitration is a more efficient and cost-effective option than
         meditation and civil litigation because the filing fee for arbitration is only $50. Since 2006, less than 1
         percent of arbitration cases are challenged in civil court and since 2009, 88 percent of the cases filed
         with arbitration are concluded by arbitration, with only 12 percent concluded by mediation.34

         According to the analysis, private mediators typically charge $300 to $500 per hour. The cost for pre-
         suit mediation for an owner can be $900 for four hours of mediation, with two hours of preparation by
         the mediator, in addition to the cost to hire an attorney.35




28 S. 720.311, F.S.
29 S. 720.311(2)(a), F.S.
30 Id.
31 Id.
32 S. 720.311(2)(a) and (b), F.S.
33 S. 720.311(2)(c), F.S.
34 Department of Business and Professional Regulation, Agency Analysis of 2020 HB 623, p. 6 -7 (Feb. 7, 2020).
35 Id.

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       Alternative Dispute Resolution – Effect of the Bill

       The bill provides that disputes between a parcel owner and an HOA, which are subject to pre-suit
       mediation, may be resolved through nonbinding arbitration with the Division in lieu of pre-suit
       mediation.

   B. SECTION DIRECTORY:
       Section 1.     Amending s. 720.311, F.S., relating to dispute resolution.

       Section 2.     Creating s. 720.319, F.S., relating to homeowners’ association ombudsman.

       Section 3.     Providing an effective date of July 1, 2022.


                           II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT

   A. FISCAL IMPACT ON STATE GOVERNMENT:

       1. Revenues:
           None.

       2. Expenditures:
           Indeterminate. The bill requires the Office of the HOA Ombudsman to be funded through the
           General Appropriations Act. The cost to fund the Office of the HOA Ombudsman is indeterminate.

   B. FISCAL IMPACT ON LOCAL GOVERNMENTS:

       1. Revenues:
           None.

       2. Expenditures:
           None.

   C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
       The bill may have a positive economic impact on HOA parcel owners and HOAs by reducing the cost of
       resolving certain disputes. In lieu of pre-suit mediation or filing a complaint in civil court, such persons
       and HOAs may be able to resolve disputes through the Office of the HOA Ombudsman or arbitration
       with the Division.

   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:
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          None.

   B. RULE-MAKING AUTHORITY:
       None.

   C. DRAFTING ISSUES OR OTHER COMMENTS:
       None.


                           IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES




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           HB 1033                                                                                               2022




    1                                         A bill to be entitled
    2                An act relating to homeowners' associations; amending
    3                s. 720.311, F.S.; defining the term "dispute";
    4                authorizing parties to initiate nonbinding arbitration
    5                rather than presuit mediation for certain disputes;
    6                creating s. 720.319, F.S.; creating the Office of the
    7                Homeowners' Association Ombudsman within the
    8                Department of Business and Professional Regulation;
    9                providing for funding of the office; directing the
10                   Governor to appoint the ombudsman; requiring the
11                   ombudsman to be an attorney; prohibiting the
12                   ombudsman, officers, and full-time employees from
13                   holding certain positions, engaging in certain
14                   activities, or receiving certain remuneration;
15                   providing for the principal location of the
16                   ombudsman's office; authorizing the ombudsman to
17                   establish branch offices under specified
18                   circumstances; providing for the powers and duties of
19                   the ombudsman; providing an effective date.
20
21         Be It Enacted by the Legislature of the State of Florida:
22
23                   Section 1.       Subsection (1) of section 720.311, Florida
24         Statutes, is amended and subsection (3) is added to that section
25         to read:

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        HB 1033                                                                                               2022




26                720.311     Dispute resolution.—
27                (1)(a)     The Legislature finds that alternative dispute
28      resolution has made progress in reducing court dockets and
29      trials and in offering a more efficient, cost-effective option
30      to litigation. The filing of any petition for arbitration or the
31      serving of a demand for presuit mediation as provided for in
32      this section shall toll the applicable statute of limitations.
33      Any recall dispute filed with the department under s.
34      720.303(10) shall be conducted by the department in accordance
35      with the provisions of ss. 718.112(2)(j) and 718.1255 and the
36      rules adopted by the division. In addition, the department shall
37      conduct binding arbitration of election disputes between a
38      member and an association in accordance with s. 718.1255 and
39      rules adopted by the division. Election disputes and recall
40      disputes are not eligible for presuit mediation; these disputes
41      must be arbitrated by the department or filed in a court of
42      competent jurisdiction. At the conclusion of an arbitration
43      proceeding, the department shall charge the parties a fee in an
44      amount adequate to cover all costs and expenses incurred b y the
45      department in conducting the proceeding. Initially, the
46      petitioner shall remit a filing fee of at least $200 to the
47      department. The fees paid to the department shall become a
48      recoverable cost in the arbitration proceeding, and the
49      prevailing party in an arbitration proceeding shall recover its
50      reasonable costs and attorney fees in an amount found reasonable

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        HB 1033                                                                                               2022




51      by the arbitrator. The department shall adopt rules to
52      effectuate the purposes of this section.
53                (b)       As used in this section, the term "dispute" means any
54      disagreement between two or more parties that involves:
55                1.    The authority of the board of directors, under this
56      chapter or an association document, to:
57                a.    Require any owner to take any action, or not to take
58      any action, involving that owner's parcel or the appurtenances
59      thereto.
60                b.    Alter or add a common area or element.
61                2.    The failure of a governing body, when required by this
62      chapter or an association document, to:
63                a.    Properly conduct elections.
64                b.    Give adequate notice of meetings or other actions.
65                c.    Properly conduct meetings.
66                d.    Allow inspection of books and records.
67
68      The term "dispute" does not include any disagreement that
69      primarily involves: title to any parcel or common area; the
70      interpretation or enforcement of any warranty; the levy of a fee
71      or assessment, or the collection of an assessment levied against
72      a party; the eviction or other removal of a tenant from a
73      parcel; alleged breaches of fiduciary duty by one or more
74      directors; or claims for damages to a parcel based upon the
75      alleged failure of the association to maintain the common area

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         HB 1033                                                                                               2022




 76      or community property.
 77                (3)       In lieu of the initiation of presuit mediation under
 78      this section, a party may submit an eligible dispute to
 79      nonbinding arbitration in accordance with s. 718.1255.
 80                Section 2.       Section 720.319, Florida Statutes, is created
 81      to read:
 82                720.319      Homeowners' association ombudsman.—
 83                (1)       ADMINISTRATION; APPOINTMENT; LOCATION.—
 84                (a)       There is created an Office of the Homeowners'
 85      Association Ombudsman to be located, for administrative
 86      purposes, within the Department of Business and Professional
 87      Regulation. The functions of the office shall be funded by the
 88      General Appropriations Act.
 89                (b)       The Governor shall appoint the ombudsman. The
 90      ombudsman must be an attorney admitted to practice before the
 91      Florida Supreme Court and shall serve at the pleasure of the
 92      Governor. The ombudsman, an officer, or a full-time employee of
 93      the ombudsman's office may not actively engage in any other
 94      business or profession that directly or indirectly relates to or
 95      conflicts with his or her work in the ombudsman's office; serve
 96      as the representative of any political party, executive
 97      committee, or other governing body of a political party; serve
 98      as an executive, officer, or employee of a political party;
 99      receive remuneration for activities on behalf of any candidate
100      for public office; or engage in soliciting votes or other

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         HB 1033                                                                                               2022




101      activities on behalf of a candidate for public office. The
102      ombudsman, an officer, or a full-time employee of the
103      ombudsman's office may not become a candidate for election to
104      public office unless he or she first resigns from his or her
105      office or employment.
106                (c)       The ombudsman shall maintain his or her principal
107      office at a place convenient to the department, which will
108      enable the ombudsman to expeditiously carry out the duties and
109      functions of his or her office. The ombudsman may establish
110      branch offices elsewhere in the state upon the concurrence of
111      the Governor.
112                (2)       POWERS AND DUTIES.—The ombudsman has the powers
113      necessary to carry out the duties of his or her office,
114      including, but not limited to:
115                (a)       Having access to and use of all files and records of a
116      homeowners' association.
117                (b)       Employing professional and clerical staff as necessary
118      for the efficient operation of the office.
119                (c)       Preparing and issuing reports and recommendations to
120      the Governor, the department, the President of the Senate, and
121      the Speaker of the House of Representatives on any matter or
122      subject within the jurisdiction of chapter 720.
123                (d)       Acting as a liaison between the department, parcel
124      owners, boards of directors, board members, community
125      association managers, and other affected parties. The ombudsman

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         HB 1033                                                                                               2022




126      shall develop policies and procedures to assist par cel owners,
127      boards of directors, board members, community association
128      managers, and other affected parties to understand their rights
129      and responsibilities, as set forth in this chapter, and the
130      governing documents that govern their respective associations.
131      The ombudsman shall coordinate and assist in the preparation and
132      adoption of educational and reference material, and shall
133      endeavor to coordinate with private or volunteer providers of
134      these services, so that the availability of these resources is
135      made known to the largest possible audience.
136                (e)       Monitoring and reviewing procedures and disputes
137      concerning elections or meetings.
138                (f)       Making recommendations to the department for changes
139      in rules and procedures for the filing, investigation, and
140      resolution of complaints filed by parcel owners, associations,
141      and managers.
142                (g)       Providing resources to assist members of boards of
143      directors and officers of associations to carry out their powers
144      and duties consistent with this chapter and the governing
145      documents that govern the association.
146                (h)       Encouraging and facilitating voluntary meetings
147      between parcel owners, boards of directors, board members,
148      community association managers, and other affected parties when
149      the meetings may assist in resolving a dispute within a
150      homeowners' association before a person submits a dispute for a

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         HB 1033                                                                                               2022




151      formal or administrative remedy. It is the intent of the
152      Legislature that the ombudsman act as a neutral resource for
153      both the rights and responsibilities of parcel owners,
154      associations, and board members.
155                (i)       Assisting with the resolution of disputes between
156      parcel owners and the association, or between parcel owners, if
157      applicable.
158                Section 3.       This act shall take effect July 1, 2022.




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                                                                                                              hb1033-00
                       REGULATORY REFORM SUBCOMMITTEE

                                 HB 1033 by Rep. Beltran
                                Homeowners’ Associations

                                 AMENDMENT SUMMARY
                                    January 20, 2021

Amendment 1 by Rep. Beltran (strike):
Differences between the original bill and strike-all amendment:
       •   Requires an HOA to give written notice of the right to a hearing to consider imposing
           a fine or suspension.
       •   Requires that a hearing to consider an HOA fine or suspension must be held within
           14 days of the request for hearing, unless the person being fined or suspended
           requests a later date.
       •   Provides a fine and suspension committee may reduce a fine or suspension in
           addition to rejecting or confirming the fine or suspension.
       •   Provides that a person may appeal the decision of the fine and suspension
           committee before an appeals committee made up of five HOA members who:
                o Are not on the board, the fine and suspension committee, employed by the
                   HOA, or a family member of such persons.
       •   Provides that a person being fined or suspended by an HOA has a right to appear at
           a hearing to consider the penalty or a subsequent appeal and may do so in person,
           by telephone, or electronically.
       •   Provides that an appeals committee may confirm, reject, or reduce a fine or
           suspension.
       •   Requires an appeals committee to reduce a fine or suspension by 50 percent if the
           violation resulting in the fine or suspension is corrected before the hearing.
       •   Provides that a fine is due 5 days after receiving the notice of the appeal committee’s
           decision.
       •   Clarifies that a party to an HOA dispute that is required to go to pre-suit mediation,
           may petition DBPR for arbitration in lieu of pre-suit mediation.
       •   Removes the ability for the HOA Ombudsman to have access to all the files and
           records of an HOA.
       •   Provides that members of an HOA may petition the HOA Ombudsman to appoint an
           election monitor for an election of the board of directors.
       •   Requires DBPR to adopt a rule establishing the procedures for appointing an
           election monitor and the scope and extent of the monitor’s role.
                                           COMMITTEE/SUBCOMMITTEE AMENDMENT
                                                  Bill No. HB 1033    (2022)
       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:     Regulatory Reform
 2     Subcommittee
 3     Representative Beltran offered the following:
 4
 5          Amendment (with title amendment)
 6          Remove everything after the enacting clause and insert:
 7          Section 1.   Paragraph (b) of subsection (2) of section
 8     720.305, Florida Statutes, is amended to read:
 9          720.305   Obligations of members; remedies at law or in
10     equity; levy of fines and suspension of use rights. —
11          (2)    An association may levy reasonable fines. A fine may
12     not exceed $100 per violation against any member or any member's
13     tenant, guest, or invitee for the failure of the owner of the
14     parcel or its occupant, licensee, or invitee to comply with any
15     provision of the declaration, the association bylaws, or
16     reasonable rules of the association unless otherwise provided in
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                                           COMMITTEE/SUBCOMMITTEE AMENDMENT
                                                  Bill No. HB 1033   (2022)
       Amendment No. 1


17     the governing documents. A fine may be levied by the board for
18     each day of a continuing violation, with a single notice and
19     opportunity for hearing, except that the fine may not exceed
20     $1,000 in the aggregate unless otherwise provided in the
21     governing documents. A fine of less than $1,000 may not become a
22     lien against a parcel. In any action to recover a fine, the
23     prevailing party is entitled to reasonable attorney fees and
24     costs from the nonprevailing party as determined by the court.
25          (b)1.   A fine or suspension levied by the board of
26     administration may not be imposed unless the board first
27     provides at least 14 days' notice to the parcel owner an d, if
28     applicable, any occupant, licensee, or invitee of the parcel
29     owner, sought to be fined or suspended, and provides written
30     notice of an opportunity for a hearing before a fine and
31     suspension committee of at least three members appointed by the
32     board who are not officers, directors, or employees of the
33     association, or the spouse, parent, child, brother, or sister of
34     an officer, director, or employee. Such hearing must be
35     conducted within 14 days after the board of administration
36     receives a written request for a hearing by the parcel owner or
37     the occupant, licensee, or invitee of the parcel owner sought to
38     be fine or suspended, unless the parcel owner or the occupant,
39     licensee, or invitee of the parcel owner sought to be fine d or
40     suspended requests a later date in writing. The request can be
41     made by United States mail, hand delivery, or by e-mail to the
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                                           COMMITTEE/SUBCOMMITTEE AMENDMENT
                                                  Bill No. HB 1033   (2022)
       Amendment No. 1


42     board, a manager, the fine and suspension committee, or a
43     designated officer. The parcel owner, occupant, licensee, or
44     invitee sought to be fined or suspended has a right to appear
45     before the fine and suspension committee and may do so in person
46     or by telephone, real-time videoconferencing, or similar real-
47     time electronic or video communication. If the fine and
48     suspension committee, by majority vote, does not approve a
49     proposed fine or suspension or reduce a fine or suspension, the
50     proposed fine or suspension may not be imposed. The role of the
51     fine and suspension committee is limited to determining whether
52     to confirm, or reject, or reduce the fine or suspension levied
53     by the board. If the proposed fine or suspension levied by the
54     board is approved by the fine and suspension committee, the fine
55     payment is due 5 days after notice of the approved fine is
56     provided to the parcel owner and, if applicable, to any
57     occupant, licensee, or invitee of the parcel owner. The
58     association must provide written notice of such fine or
59     suspension by United States mail or hand delivery to the parcel
60     owner and, if applicable, to any occupant, licensee, or invitee
61     of the parcel owner. The association must also provide the
62     written notice by electronic transmission to the parcel owner’s
63     e-mail address, if the parcel owner’s e-mail address is
64     maintained in the association’s official records.
65          2.   Within 3 days after receiving written notice that the
66     fine or suspension was approved by the fine and suspension
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                                           COMMITTEE/SUBCOMMITTEE AMENDMENT
                                                  Bill No. HB 1033   (2022)
       Amendment No. 1


67     committee, a parcel owner or, if applicable, the occupant,
68     licensee, or invitee of the parcel owner, who is fined or
69     suspended may appeal the fine or suspension by providing written
70     notice of such appeal to the board, a manager, the fine and
71     suspension committee, or a designated officer by United States
72     mail, hand delivery, or e-mail.
73          3.   An association must give a parcel owner or, if
74     applicable, any occupant, licensee, or invitee of the parcel
75     owner, who appeals a fine or suspension, an opportunity for a
76     hearing before an appeals committee made up of at least five
77     members appointed by the board who are not officers, directors,
78     employees of the association, or members of the fine and
79     suspension committee, or the spouse, parent, child, brother, or
80     sister of an officer, director, employee, or member of the fine
81     and suspension committee. The parcel owner or the occupant,
82     licensee, or invitee of the parcel owner fined or suspended has
83     a right to appear before the appeals committee and may do so in
84     person or by telephone, real-time videoconferencing, or similar
85     real-time electronic or video communication. The role of the
86     appeals committee is limited to determining whether to confirm,
87     reject, or reduce the fine or suspension levied by the board and
88     confirmed by the fine and suspension committee. If the appeals
89     committee, by majority vote, does not approve the fine or
90     suspension or reduce the fine or suspension, the fine or
91     suspension may not be imposed. If the violation that resulted in
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                                            COMMITTEE/SUBCOMMITTEE AMENDMENT
                                                   Bill No. HB 1033     (2022)
        Amendment No. 1


 92     the fine or suspension is corrected before the hearing, the
 93     appeals committee must reduce the fine or suspension by at least
 94     50 percent. The association must provide written notice of the
 95     appeals committee’s decision by United States mail or hand
 96     delivery to the parcel owner and, if applicable, to the
 97     occupant, licensee, or invitee of the parcel owner who received
 98     the fine or suspension. The association must also provide the
 99     written notice by electronic transmission to the parcel owner’s
100     e-mail address, if the parcel owner’s e-mail address is
101     maintained in the association’s official records. Payment of a
102     fine that is appealed in compliance with this paragraph is due 5
103     days after notice of the appeals committee’s decision is
104     provided to the parcel owner and, if applicable, to the
105     occupant, licensee, or invitee of the parcel owner.
106          Section 2.    Paragraph (a) of subsection (2) of section
107     720.311, Florida Statutes, is amended and subsection (3) is
108     added to that section to read:
109          720.311    Dispute resolution.—
110          (2)(a)    Disputes between an association and a parcel owner
111     regarding use of or changes to the parcel or the common areas
112     and other covenant enforcement disputes, disputes regarding
113     amendments to the association documents, disputes regarding
114     meetings of the board and committees appointed by the board,
115     membership meetings not including election meetings, and access
116     to the official records of the association must shall be the
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                                            COMMITTEE/SUBCOMMITTEE AMENDMENT
                                                   Bill No. HB 1033   (2022)
        Amendment No. 1


117     subject of a demand for presuit mediation served by an aggrieved
118     party or a petition for nonbinding arbitration as provided in
119     subsection (3) before the dispute is filed in court. Presuit
120     mediation proceedings must be conducted in accordance with the
121     applicable Florida Rules of Civil Procedure, and these
122     proceedings are privileged and confidential to the same extent
123     as court-ordered mediation. Disputes subject to presuit
124     mediation under this section may shall not include the
125     collection of any assessment, fine, or other financial
126     obligation, including attorney attorney's fees and costs,
127     claimed to be due or any action to enforce a prior mediation
128     settlement agreement between the parties. Also, in any dispute
129     subject to presuit mediation under this section where emergency
130     relief is required, a motion for temporary injunctive relief may
131     be filed with the court without first complying with the presui t
132     mediation requirements of this section. After any issues
133     regarding emergency or temporary relief are resolved, the court
134     may either refer the parties to a mediation program administered
135     by the courts or require mediation under this section. An
136     arbitrator or judge may not consider any information or evidence
137     arising from the presuit mediation proceeding except in a
138     proceeding to impose sanctions for failure to attend a presuit
139     mediation session or to enforce a mediated settlement agreement.
140     Persons who are not parties to the dispute may not attend the
141     presuit mediation conference without the consent of all parties,
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                                                   Bill No. HB 1033   (2022)
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142     except for counsel for the parties and a corporate
143     representative designated by the association. When mediation is
144     attended by a quorum of the board, such mediation is not a board
145     meeting for purposes of notice and participation set forth in s.
146     720.303. An aggrieved party must shall serve on the responding
147     party a written demand to participate in presuit mediation in
148     substantially the following form:

149     STATUTORY OFFER TO PARTICIPATE
150     IN PRESUIT MEDIATION

151     The alleged aggrieved party, ................, hereby demands
152     that ................, as the responding party, engage in
153     mandatory presuit mediation in connection with the following
154     disputes, which by statute are of a type that are subject to
155     presuit mediation:

156     (List specific nature of the dispute or disputes to be mediated
157     and the authority supporting a finding of a violation as to each
158     dispute.)

159     Pursuant to section 720.311, Florida Statutes, this demand to
160     resolve the dispute through presuit mediation is required before
161     a lawsuit can be filed concerning the dispute. Pursuant to the
162     statute, the parties are required to engage in presuit mediation
163     with a neutral third-party mediator in order to attempt to
164     resolve this dispute without court action, and the aggrieved
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                                                   Bill No. HB 1033   (2022)
        Amendment No. 1


165     party demands that you likewise agree to this process. If you
166     fail to participate in the mediation process, suit may be
167     brought against you without further warning.

168     The process of mediation involves a supervised negotiation
169     process in which a trained, neutral third-party mediator meets
170     with both parties and assists them in exploring possible
171     opportunities for resolving part or all of the dispute. By
172     agreeing to participate in presuit mediation, you are not bound
173     in any way to change your position. Furthermore, the mediator
174     has no authority to make any decisions in this matter or to
175     determine who is right or wrong and merely acts as a facilit ator
176     to ensure that each party understands the position of the other
177     party and that all options for reasonable settlement are fully
178     explored.

179     If an agreement is reached, it shall be reduced to writing and
180     becomes a binding and enforceable commitment of the parties. A
181     resolution of one or more disputes in this fashion avoids the
182     need to litigate these issues in court. The failure to reach an
183     agreement, or the failure of a party to participate in the
184     process, results in the mediator declaring an impasse in the
185     mediation, after which the aggrieved party may proceed to court
186     on all outstanding, unsettled disputes. If you have failed or
187     refused to participate in the entire mediation process, you will


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                                                   Bill No. HB 1033   (2022)
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188     not be entitled to recover attorney attorney's fees, even if you
189     prevail.

190     The aggrieved party has selected and hereby lists five certified
191     mediators who we believe to be neutral and qualified to mediate
192     the dispute. You have the right to select any one of these
193     mediators. The fact that one party may be familiar with one or
194     more of the listed mediators does not mean that the mediator
195     cannot act as a neutral and impartial facilitator. Any mediator
196     who cannot act in this capacity is required ethically to decline
197     to accept engagement. The mediators that we suggest, and the ir
198     current hourly rates, are as follows:

199     (List the names, addresses, telephone numbers, and hourly rates
200     of the mediators. Other pertinent information about the
201     background of the mediators may be included as an attachment.)

202     You may contact the offices of these mediators to confirm that
203     the listed mediators will be neutral and will not show any
204     favoritism toward either party. The Florida Supreme Court can
205     provide you a list of certified mediators.

206     Unless otherwise agreed by the parties, section 720.311(2)(b) ,
207     Florida Statutes, requires that the parties share the costs of
208     presuit mediation equally, including the fee charged by the
209     mediator. An average mediation may require three to four hours
210     of the mediator's time, including some preparation time, and the
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                                                   Bill No. HB 1033   (2022)
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211     parties would need to share equally the mediator's fees as well
212     as their own attorney attorney's fees if they choose to employ
213     an attorney in connection with the mediation. However, use of an
214     attorney is not required and is at the option of each party. The
215     mediators may require the advance payment of some or all of the
216     anticipated fees. The aggrieved party hereby agrees to pay or
217     prepay one-half of the mediator's estimated fees and to forward
218     this amount or such other reasonable advance deposits as the
219     mediator requires for this purpose. Any funds deposited will be
220     returned to you if these are in excess of your share of the fees
221     incurred.

222     To begin your participation in presuit mediation to try to
223     resolve the dispute and avoid further legal action, please sign
224     below and clearly indicate which mediator is acceptable to you.
225     We will then ask the mediator to schedule a mutually convenient
226     time and place for the mediation conference to be held. The
227     mediation conference must be held within ninety (90) days after
228     of this date, unless extended by mutual written agreement. In
229     the event that you fail to respond within 20 days after from the
230     date of this letter, or if you fail to agree to at least one of
231     the mediators that we have suggested or to pay or prepay to the
232     mediator one-half of the costs involved, the aggrieved party
233     will be authorized to proceed with the filing of a lawsuit
234     against you without further notice and may seek an award of

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                                                    Bill No. HB 1033   (2022)
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235     attorney attorney's fees or costs incurred in attempting to
236     obtain mediation.

237     Therefore, please give this matter your immediate attention. By
238     law, your response must be mailed by certified mail, return
239     receipt requested, and by first-class mail to the address shown
240     on this demand.

241     ........................
242     ........................

243     RESPONDING PARTY: YOUR SIGNATURE INDICATES YOUR AGREEMENT TO
244     THAT CHOICE.

245                           AGREEMENT TO MEDIATE

246     The undersigned hereby agrees to participate in presuit
247     mediation and agrees to attend a mediation conducted by the
248     following mediator or mediators who are listed abov e as someone
249     who would be acceptable to mediate this dispute:

250     (List acceptable mediator or mediators.)

251     I/we further agree to pay or prepay one-half of the mediator's
252     fees and to forward such advance deposits as the mediator may
253     require for this purpose.

254     ........................

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                                                   Bill No. HB 1033     (2022)
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255     Signature of responding party #1

256     ........................
257     Telephone contact information

258     ........................
259     Signature and telephone contact information of responding party
260     #2 (if applicable)(if property is owned by more than one person,
261     all owners must sign)
262          (3)   In lieu of initiating presuit mediation under this
263     section, an aggrieved party may submit a dispute subject to
264     presuit mediation under subsection (2) to nonbinding arbitration
265     in accordance with s. 718.1255.
266                Section 3.   Section 720.319, Florida Statutes, is
267     created to read:
268          720.319   Homeowners' association ombudsman.—
269          (1)   ADMINISTRATION; APPOINTMENT; LOCATION.—
270          (a)   There is created an Office of the Homeowners'
271     Association Ombudsman to be located, for administrative
272     purposes, within the Department of Business and Professional
273     Regulation. The functions of the office shall be funded by the
274     General Appropriations Act.
275          (b)   The Governor shall appoint the ombudsman. The
276     ombudsman must be an attorney admitted to practice be fore the
277     Florida Supreme Court and shall serve at the pleasure of the
278     Governor. The ombudsman, an officer, or a full-time employee of
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                                                   Bill No. HB 1033    (2022)
        Amendment No. 1


279     the ombudsman's office may not actively engage in any other
280     business or profession that directly or indirectly relates to or
281     conflicts with his or her work in the ombudsman's office; serve
282     as the representative, or an executive, officer, or employee, of
283     any political party, executive committee, or other governing
284     body of a political party; receive remuneration for activities
285     on behalf of any candidate for public office; or engage in
286     soliciting votes or other activities on behalf of a candidate
287     for public office. The ombudsman, an officer, or a full -time
288     employee of the ombudsman's office may not become a candidate
289     for election to public office unless he or she first resigns
290     from his or her office or employment.
291          (c)   The ombudsman shall maintain his or her principal
292     office at a place convenient to the department, which will
293     enable the ombudsman to expeditiously carry out the duties and
294     functions of his or her office. The ombudsman may establish
295     branch offices elsewhere in the state upon the concurrence of
296     the Governor.
297          (2)   POWERS AND DUTIES.—The ombudsman has the powers
298     necessary to carry out the duties of his or her office,
299     including, but not limited to:
300          (a)   Employing professional and clerical staff as necessary
301     for the efficient operation of the office.
302          (b)   Preparing and issuing reports and recommendations to
303     the Governor, the department, the President of the Senate, and
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                                                   Bill No. HB 1033   (2022)
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304     the Speaker of the House of Representatives on any matter or
305     subject within the jurisdiction of chapter 720.
306          (c)   Acting as a liaison between the department, parcel
307     owners, boards of directors, board members, community
308     association managers, and other affected parties. The ombudsman
309     shall develop policies and procedures to assist parcel owners,
310     boards of directors, board members, community association
311     managers, and other affected parties to understand their rights
312     and responsibilities, as set forth in this chapter, and the
313     governing documents that govern their respective associations.
314     The ombudsman shall coordinate and assist in the preparation and
315     adoption of educational and reference material, and shall
316     endeavor to coordinate with private or volunteer providers of
317     these services, so that the availability of these resources is
318     made known to the largest possible audience.
319          (d)   Monitoring and reviewing procedures and disputes
320     concerning elections or meetings.
321          (e)   Providing resources to assist members of boards of
322     directors and officers of associations to carry out their powers
323     and duties consistent with this chapter and the governing
324     documents that govern the association.
325          (f)   Encouraging and facilitating voluntary meetings
326     between parcel owners, boards of directors, board members,
327     community association managers, and other affected parties when
328     the meetings may assist in resolving a dispute within a
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                                                   Bill No. HB 1033    (2022)
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329     homeowners' association before a person submits a dispute for a
330     formal or administrative remedy. It is the intent of the
331     Legislature that the ombudsman act as a neutral resource for
332     both the rights and responsibilities of parcel owners,
333     associations, and board members.
334          (g)   Assisting with the resolution of disputes between
335     parcel owners and the association, or between parcel owners, if
336     applicable.
337          (3)   ELECTION MONITORING.—
338          (a)   Fifteen percent of the total voting interests in a
339     homeowners' association, or six parcel owners, whichever is
340     greater, may petition the ombudsman to appoint an election
341     monitor to attend the annual meeting of the parcel owners and
342     conduct the election of directors.
343          (b)   The ombudsman shall appoint a division employee, a
344     person who specializes in homeowners' association election
345     monitoring, or an attorney licensed to practice in the state as
346     the election monitor.
347          (c)   The association must pay all costs associated with the
348     election monitoring process.
349          (d)   The division must adopt a rule establishing procedures
350     for the appointment of election monitors and the scope and
351     extent of the monitor's role in the election process.
352          Section 4. This act shall take effect July 1, 2022.
353
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                                            COMMITTEE/SUBCOMMITTEE AMENDMENT
                                                   Bill No. HB 1033   (2022)
        Amendment No. 1


354           -----------------------------------------------------
355                       T I T L E   A M E N D M E N T
356          Remove everything before the enacting clause and insert:
357          An act relating to homeowners' associations; amending
358          s. 720.305, F.S.; requiring the board of
359          administration to provide written notice of the
360          opportunity for certain hearings to certain persons;
361          requiring certain hearings to be held within a
362          specified time after certain persons receive a written
363          request for such hearing; providing how a written
364          request may be provided to certain persons;
365          authorizing certain persons to attend the hearing in
366          certain ways; authorizing a fine and suspension
367          committee to reduce a fine or suspension levied by the
368          board; providing an appeals process for certain fines
369          and suspensions; requiring an appeal to be heard
370          before a committee within a specified time after
371          certain persons receive written notice of the appeal;
372          providing how written notice of an appeal may be
373          provided to certain persons; providing for the
374          composition of an appeals committee; authorizing
375          certain persons to attend the appeals committee and
376          providing the ways that such persons may attend;
377          specifying the role of the appeals committee;
378          specifying when a fine or suspension may not be
      112207 - h1033-strike.docx
       Published On: 1/19/2022 7:21:47 PM
                                   Page 16 of 17
                                            COMMITTEE/SUBCOMMITTEE AMENDMENT
                                                   Bill No. HB 1033   (2022)
        Amendment No. 1


379          imposed; requiring the appeals committee to reduce the
380          fine or suspension by a specified percentage under
381          certain circumstances; requiring the association to
382          provide written notice, in specified ways, to certain
383          persons of the decision of the appeals committee;
384          specifying when payment of a fine that is appealed is
385          due; amending s. 720.311, F.S.; authorizing parties to
386          initiate nonbinding arbitration rather than presuit
387          mediation for certain disputes; creating s. 720.319,
388          F.S.; creating the Office of the Homeowners'
389          Association Ombudsman within the Department of
390          Business and Professional Regulation; providing for
391          funding of the office; directing the Governor to
392          appoint the ombudsman; requiring the ombudsman to be
393          an attorney; prohibiting the ombudsman, officers, and
394          full-time employees from holding certain positions,
395          engaging in certain activities, or receiving certain
396          remuneration; providing for the principal location of
397          the ombudsman's office; authorizing the ombudsman to
398          establish branch offices under specified
399          circumstances; providing for the powers and duties of
400          the ombudsman; providing for the administration of an
401          election monitoring process; requiring the Division of
402          Florida Condominiums, Timeshares, and Mobile Homes to
403          adopt certain rules; providing an effective date.
      112207 - h1033-strike.docx
       Published On: 1/19/2022 7:21:47 PM
                                   Page 17 of 17
HB 1095
                                  HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #:     HB 1095 Telephone Solicitation
SPONSOR(S): Beltran
TIED BILLS:       IDEN./SIM. BILLS:

    REFERENCE                                                   ACTION                  ANALYST            STAFF DIRECTOR or
                                                                                                           BUDGET/POLICY CHIEF

    1) Regulatory Reform Subcommittee                                                   Thompson           Anstead

    2) Civil Justice & Property Rights Subcommittee

    3) Commerce Committee


                                             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 governing telephone solicitations in the state, the Florida Do Not Call Act, prohibits unsolicited
telephonic sales calls and text messages from telemarketers. Residents who do not wish to receive unsolicited
telephonic sales calls may have their residential, mobile, or paging device telephone number included on the
Do Not Call List. DACS maintains the list, it is free to register, and a registered number remains on the list
indefinitely.

The law governing telephone solicitations also 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 without the prior express written consent of the called party.

The bill makes the following changes to the law governing telephone solicitations:
    Revises the description, in the definition of “prior express written consent,” of the type of automated
        calling system that must be used, to specifically be an automated system for the selection “and“ dialing
        of telephone numbers or the playing of a recorded message when a connection is completed to a
        number called.
    Revises the definition of “unsolicited telephonic sales call" to mean a telephonic sales call other than a
        call made within 120 days after an express request of the called party.
    Clarifies that the provisions requiring prior express written consent do not prohibit the use of an
        automated telephone dialing system with live messages if the call is made or message is given solely in
        response to an inquiry initiated by the called party.
             o However, the bill specifies that only two calls may be made or messages given in response to
                each such inquiry.
    Clarifies that in order for a prevailing party to be awarded attorney fees and costs from a non prevailing
        party in civil litigation cases, such litigation must result from a violation, instead of a transaction
        involving a violation.

The bill does not appear to have a fiscal impact on state or local government.

The effective date of the bill is July 1, 2022.




This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h1095.RRS
DATE: 1/18/2022
                                                           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 8 p.m. local time at the called person’s time zone.
              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 de posit 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 monitorin g 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 t o 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.
STORAGE NAME: h1095.RRS                                                                                                               PAGE: 2
DATE: 1/18/2022
         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

         Telephone Solicitations

         Do Not Call List

         Section 501.059, F.S., is the section of Florida law that governs telephone solicitations. The law
         includes the Florida Do Not Call Act, also known as the "Do Not Call” list (list), which prohibits
         unsolicited telephonic sales calls and text messages from telemarketers.14 Residents who do not wish
         to receive unsolicited telephonic sales calls may have their residential, mobile, or paging device
         telephone number included on the list. DACS maintains the list, it is free to register, and a registered
         number remains on the list indefinitely.15

         An “unsolicited telephonic sales call” is defined as a telephonic sales call other than a call made:
             In response to an express request of the person called;
             Primarily in connection with an existing debt or contract, if payment or performance of such debt
                or contract has not been completed at the time of such call;
             To a person with whom the telephone solicitor has a prior or existing business relationship; or
             By a newspaper publisher or his or her agent or employee in connection with his or her
                business.16

         Telephone solicitors 17 are prohibited from making telephonic sales calls 18 to consumers who register for
         the list. A “telephonic sales call” means 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 .19

         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.20

         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



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.
15 Department of Agriculture and Consumer Services, Florida Do Not Call, https://www.fdacs.gov/Consumer-Resources/Florida-Do-

Not-Call (last visited Jan. 15, 2022).
16 S. 501.059(1)(k), F.S.
17 Section 501.059(1)(i), 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.”
18 S. 501.059(1)(j), F.S., defines “Telephonic sales call” as a telephone call, text message, or voicemail transmission to a con sumer for

the purpose of soliciting a sale of any consumer goods or services, soliciting an extension of credit for consumer goods or s ervices, 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.
19 S. 501.059(1)(j), F.S.
20 S. 501.059(5), F.S.
STORAGE NAME: h1095.RRS                                                                                                           PAGE: 3
DATE: 1/18/2022
         number will connect the call recipient with the telephone solicitor or the seller on behalf of which the
         phone call was placed.21

         Anyone who receives an unsolicited sales call can report the call to DACS using the online Do Not Call
         Complaint Form.22

         Prior Express Written Consent

         A component of the law governing telephone solicitations also prohibits automated telephonic sales
         calls without the prior express written consent of the called party. 23

         "Prior express written consent" is defined as a written agreement that:
              Bears the signature of the called party;
              Clearly authorizes the person making or allowing the placement of a telephonic sales call by
                 telephone call, text message, or voicemail transmission to deliver or cause to be delivered to the
                 called party a telephonic sales call using an automated system for the selection or dialing of
                 telephone numbers, the playing of a recorded message when a connection is completed to a
                 number called, or the transmission of a prerecorded voicemail; and
              Includes the telephone number to which the signatory authorizes a telephonic sales call to be
                 delivered.24

         Prior express written consent must include a clear and conspicuous disclosure informing the called
         party that:
              By executing the agreement, the called party authorizes the person making or allowing the
                 placement of a telephonic sales call to deliver or cause to be delivered a telephonic sales call to
                 the called party using an automated system for the selection or dialing of telephone numbers or
                 the playing of a recorded message when a connection is completed to a number called; and
              He or she is not required to directly or indirectly sign the written agreement or to agree to enter
                 into such an agreement as a condition of purchasing any property, goods, or services. 25

         There is a rebuttable presumption that a telephonic sales call made to any area code in this state is
         made to a Florida resident or to a person in this state at the time of the call.26

         Violations

         A telephone solicitor who violates the provisions of Florida’s “Do Not Call” program is currently subject
         to an injunction and a civil penalty27 with a maximum fine of $10,000 per violation, or an administrative
         fine28 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. 29

         A called party who is aggrieved by a violation may bring an action for an injunction and actual damages
         or $500, whichever is greater.30




21 S. 501.059(8)(b),   F.S.
22 Department of Agriculture and Consumer Services, Florida Do Not Call, https://www.fdacs.gov/Consumer-Resources/Florida-Do-

Not-Call (last visited Jan. 15, 2022).
23 S. 501.059(8)(a), F.S.
24 S. 501.059(1)(g), F.S.
25 S. 501.059(1)(g)4., F.S.
26 S. 501.059(8)(d), F.S.
27 S. 501.059(9)(a), F.S.
28 S. 501.059(9)(b), F.S.
29 S. 501.059(11), F.S.
30 S. 501.059(10)(a), F.S.
STORAGE NAME: h1095.RRS                                                                                               PAGE: 4
DATE: 1/18/2022
          Courts that find that a defendant willfully or knowingly violated these provisions, are authorized to, in
          their discretion, increase the amount of the award to not more than three times the amount of
          damages.31

          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.32

          In July 2015, the Federal Communications Commission (FCC) established rules indicating that
          telephone carriers can block unwanted calls at the request of consumers. 33 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.34 Currently there are a number of call-blocking
          applications that provide some relief from unwanted and spam calls. 35

          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. 36 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.37

          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.38

          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.”39 In July 2020, the FCC designated the US Telecom-led Industry




31 S. 501.059(10)(b ),   F.S.
32 Federal Communications Commission, FCC Actions on Robocalls, Telemarketing, https://www.fcc.gov/general/telemarketing-and-

robocalls (last visited Jan. 15, 2022).
33 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).
34 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 Jan. 15, 2022).
35 CTIA, The Wireless Association, How to Stop Robocalls, https://www.ctia.org/consumer-tips/robocalls (last visited Jan. 15, 2022).
36 32 FCC Rcd 9706 (11).
37 Federal Communications Commission, Stop Unwanted Calls and Texts, https://www.fcc.gov/consumers/guides/stop-unwanted-

calls-and-texts (last visited Jan. 15, 2022).
38 47 C.F.R. § 64.1601.
39 Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act, Pub. L. No. 116-105, 133 Stat. 3274 (2019).
STORAGE NAME: h1095.RRS                                                                                                      PAGE: 5
DATE: 1/18/2022
        Traceback Group (ITG) as the Official Consortium for coordinating industry-led efforts to trace back the
        origin of suspected unlawful robocalls.40

        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. 41

        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. 42 The ITG
        encouraged the FCC to bring aggressive enforcement against robocallers and voice service providers
        that routinely refuse to participate in the traceback process. 43

        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.” 44

        The TRACED Act requires the FCC to issue an annual public notice seeking applicants to serve as the
        registered consortium.45 On August 25, 2021, the FCC selected the Traceback Group to continue as
        the registered consortium.46

        National Do Not Call Registry

        Although individual states were first to address consumers’ requests to stop unwanted telemarketing
        calls,47 the federal government soon followed with a National Do Not Call Registry in 2003. 48 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.49

        Constitutionality of Do Not Call Registries



40
   USTelecom The Broadband 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 Jan. 15, 2022).
41 InsideArm, The Latest Developments in the World of Call Delivery, https://www.insidearm.com/news/00047073-latest-

developments-world-call-delivery/ (last visited Jan. 15, 2022).
42 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 Jan. 15, 2022).
43 InsideArm, The Latest Developments in the World of Call Delivery, https://www.insidearm.com/news/00047073-latest-

developments-world-call-delivery/ (last visited Jan. 15, 2022).
44 Federal Communications Commission, Fourth Report and Order, Dec. 29, 2020, https://docs.fcc.gov/public/attachments/FCC-20-

187A1.pdf (last visited Jan. 15, 2022).
45 TRACED Act, § 13(d)(2).
46 Federal Communications Commission, Report and Order DA 21-1047, Aug. 25, 2021, https://www.fcc.gov/document/fcc-retains-

industry-traceback-group-robocall-consortium (last visited Jan. 15, 2022).
47 At least 28 states, starting with Florida in 1987, have implemented Do Not Call registries.
48 Federal Trade Commission, National Do Not Call Registry, https://www.donotcall.gov/ (last visited Jan. 15, 2022).
49 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 Jan. 15, 2022).
STORAGE NAME: h1095.RRS                                                                                                 PAGE: 6
DATE: 1/18/2022
         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.50

         Claims of preemption have also been unsuccessful. The TCPA’s non-preemption clause,51 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 autom atic
         dialing systems and prerecorded messages, and the making of telephone solicitations. 52

         The TPCA is silent on a state’s ability to place regulations that are more stringent than the TCPA
         requirements for interstate calls.53 However, at least one court has held that state regulations and
         prohibitions of telemarketing can cross state lines.54

         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.55 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.56

         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.57 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. 58


50 Mainstream Marketing Services Inc v. Federal Trade Commission, 358 F.3d 1228 (10th Cir. 2004).
51 47 U.S.C. § 227(f)(1).
52 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.
53 47 U.S.C. s. 227 (f)(1).
54 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.”).
55 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 Jan. 15, 2022).
56 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 Jan. 15, 2022).
57 47 U.S.C. § 227(e).
58 Federal Communications Commission, Caller ID Spoofing, https://www.fcc.gov/consumers/guides/spoofing-and-caller-id (last

visited Jan. 15, 2022).
STORAGE NAME: h1095.RRS                                                                                                         PAGE: 7
DATE: 1/18/2022
         In 2008, Florida passed its own anti-spoofing legislation, The Florida Caller ID Anti-Spoofing Act
         (2008).59 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
         practices to Florida law to avoid liability.60 Similarly, in 2011, a federal court in Mississippi struck
         Mississippi’s anti-spoofing law, which was substantially similar to Florida’s. 61

         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.62

         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. 63

         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.64

         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.65

         Consent and Revocation

         The TCPA prohibits a telemarketer from using an automatic telephone dialing system (ATDS) to place


59 S. 817.487,   F.S. (2008).
60 TelTech Systems, Inc. v. McCollum, No. 08-61664-CIV-MARTINEZ-BROWN               (S.D. Fla. Filed Oct. 16, 2008).
61 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).
62 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=EAIaIQobChMIlv mq_4Sr7wIVFYv ICh 2RAwjqEAA YA iAAEgJD4v D_BwE&gclsrc=aw.ds (last visited Jan. 15,
2022).
63 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-bbd0-9dfb 2e37492a_story.html?ut m_term=.8a6e6ea55f32 (Last visited
Jan. 15, 2022).
64 AARP, supra note 62.
65 AARP, supra note 62.
STORAGE NAME: h1095.RRS                                                                                                         PAGE: 8
DATE: 1/18/2022
         a call or send a text message to a cell phone without the recipient’s “prior express consent.”66 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.67

         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
                or advertising 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.68

         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.69

         Prior express written consent is required for calls or texts to cell phones that introduce an
         advertisement,70 or constitute “telemarketing”71 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. 72

         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.73

         In 2017, the Second Circuit Court of Appeal held that a consumer may not unilaterally revoke
         consent in a bargained-for, bilateral contract.74 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


66 47 U.S.C. § 227(b)(1)(A)(iii).
67 The National Law Review, Consent and Revocation Under the TCPA, https://www.natlawreview.com/print/article/consent-and-

revocation-under-tcpa (last visited Jan. 15, 2022).
68 Id.
69 Federal Communications Commission, Rules & Regulations Implementing the TCP Act of 1991 et al., 30 FCC Rcd at 7991–92.
70 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.”
71 47 C.F.R. § 64.1200(f)(12).
72 The National Law Review, supra note 67.
73 Id.
74 Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 53 (2d Cir. 2017).
STORAGE NAME: h1095.RRS                                                                                                        PAGE: 9
DATE: 1/18/2022
         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. 75

         In 2018, a United States District Court in Florida also held that consent provided by contract cannot be
         unilaterally revoked.76 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
         court held that a consumer who has consented to auto-dialed communication in a contract for services
         cannot later revoke such consent.77

        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.”78 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.79

         In December 2020, the U.S. Supreme Court heard oral arguments in a landmark case regarding
         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 was the meaning of the TCPA’s prohibition on using
         an ATDS to transmit communications to cell phones. The question before the Supreme Court was
         “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.”80

         On April 1, 2021, the U.S. Supreme Court issued its decision. The Court ruled that to qualify as an
         ATDS under the TCPA, a device must have the capacity to either store a telephone number using a
         random or sequential number generator or produce a telephone number using a random or s equential
         number generator. The Court concluded that merely having the capacity to store numbers and dial
         them automatically is not enough to make a device qualify as an ATDS. 81

         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.82

         The TCPA includes a private right of action.83 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. 84

         The Florida telephone solicitation law prohibits robocalls without the prior express written consent of the
         called party.85 When the called party has given such consent, robocalls are only allowed in certain
         circumstances through the use of an “automated system for the selection or dialing of telephone
         numbers or the playing of a recorded message” when a connection is completed to a number called.86

75 The National Law Review, supra note 67.
76 Medley v. Dish Network, LLC, Case No. 8:16-cv-2534-T-36TBM,    2018 WL 4092120, at *10 (M.D. Fla. Aug. 27, 2018).
77 The National Law Review, supra note 67.
78 Ammons v. Ally Fin., Inc., Case No. 3:17-cv-00505,   2018 WL 3134619, at *15 (M.D. Tenn. June 27, 2018).
79 Few v. Receivables Performance Mgmt., Case No. 1:17-CV-2038-KOB,       2018 WL 5923765 at *1 (N.D. Ala. Nov. 13, 2018).
80 Facebook, Inc., Petitioner vs. Noah Duguid, et al., U.S., No. 19-511.
81 Id.
82 FCC, supra note 32.
83 47 U.S.C. § 227(b)(3).
84 Id. at § 227(b)(3)(B)-(C).
85 S. 501.059(8), F.S.
86 Id.
STORAGE NAME: h1095.RRS                                                                                                 PAGE: 10
DATE: 1/18/2022
       Effect of the Bill

       The bill makes the following changes to the law governing telephone solicitations:
        Revises the description, in the definition of “prior express written consent,” of the type of automated
          calling system that must be used, to specifically be an automated system for the selection “and“
          dialing of telephone numbers or the playing of a recorded message when a connection is completed
          to a number called.
        Revises the definition of “unsolicited telephonic sales call" to mean a telephonic sales call other
          than a call made within 120 days after an express request of the called party.
        Clarifies that the provisions requiring prior express written consent do not prohibit the use of an
          automated telephone dialing system with live messages if the call is made or message is given
          solely in response to an inquiry initiated by the called party.
               o However, the bill specifies that only two calls may be made or messages given in response
                  to each such inquiry.
        Clarifies that in order for a prevailing party to be awarded attorney fees and costs from a non
          prevailing party in civil litigation cases, such litigation must result from a violation, instead of a
          transaction involving a violation.

   B. SECTION DIRECTORY:
       Section 1:     Amends s. 501.059, F.S., 501.059, F.S.; revising definitions; conforming a provision;
                      authorizing the use of automated telephone dialing systems with live messages in
                      response to certain inquiries; providing a limitation; revising provisions for the award of
                      attorney fees and costs.

       Section 2:     Provides an effective date.


                          II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT

   A. FISCAL IMPACT ON STATE GOVERNMENT:

       1. Revenues:
           None.

       2. Expenditures:
           None.

   B. FISCAL IMPACT ON LOCAL GOVERNMENTS:

       1. Revenues:
           None.

       2. Expenditures:
           None.

   C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
       The bill may 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.
STORAGE NAME: h1095.RRS                                                                                    PAGE: 11
DATE: 1/18/2022
                                              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




STORAGE NAME: h1095.RRS                                                                          PAGE: 12
DATE: 1/18/2022
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           HB 1095                                                                                               2022




    1                                         A bill to be entitled
    2                An act relating to telephone solicitation; amending s.
    3                501.059, F.S.; revising definitions; conforming a
    4                provision; authorizing the use of automated telephone
    5                dialing systems with live messages in response to
    6                certain inquiries; providing a limitation; revising
    7                provisions for the award of attorney fees and costs;
    8                providing an effective date.
    9
10         Be It Enacted by the Legislature of the State of Florida:
11
12                   Section 1.       Paragraphs (g) and (k) of subsection (1),
13         paragraph (a) of subsection (8), and subsection (11) of section
14         501.059, Florida Statutes, are amended, and paragraph (e) is
15         added to subsection (8) of that section, to read:
16                   501.059      Telephone solicitation.—
17                   (1)       As used in this section, the term:
18                   (g)       "Prior express written consent" means a written
19         agreement that:
20                   1.    Bears the signature of the called party;
21                   2.    Clearly authorizes the person making or allowing the
22         placement of a telephonic sales call by telephone call, text
23         message, or voicemail transmission to deliver or cause to be
24         delivered to the called party a telephonic sales call using an
25         automated system for the selection and or dialing of telephone

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        HB 1095                                                                                               2022




26      numbers, the playing of a recorded message when a connection is
27      completed to a number called, or the transmission of a
28      prerecorded voicemail;
29                3.    Includes the telephone number to which the signatory
30      authorizes a telephonic sales call to be delivered; and
31                4.    Includes a clear and conspicuous disclosure informing
32      the called party that:
33                a.    By executing the agreement, the called party authorizes
34      the person making or allowing the placement of a telephonic
35      sales call to deliver or cause to be delivered a telephonic
36      sales call to the called party using an automated system for the
37      selection and or dialing of telephone numbers or the playing of
38      a recorded message when a connection is completed to a number
39      called; and
40                b.    He or she is not required to directly or indirectly
41      sign the written agreement or to agree to enter into such an
42      agreement as a condition of purchasing any property, goods, or
43      services.
44                (k)       "Unsolicited telephonic sales call" means a telephonic
45      sales call other than a call made:
46                1.    Within 120 days after In response to an express request
47      of the person called party;
48                2.    Primarily in connection with an existing debt or
49      contract, if payment or performance of such debt or contract has
50      not been completed at the time of such call;

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        HB 1095                                                                                               2022




51                3.    To a person with whom the telephone solicitor has a
52      prior or existing business relationship; or
53                4.    By a newspaper publisher or his or her agent or
54      employee in connection with his or her business.
55                (8)(a)      A person may not make or knowingly allow a
56      telephonic sales call to be made if such call involves an
57      automated system for the selection and or dialing of telephone
58      numbers or the playing of a recorded message when a connection
59      is completed to a number called without the prior express
60      written consent of the called party.
61                (e)       This subsection does not prohibit the use of an
62      automated telephone dialing system with live messages if the
63      call is made or message is given solely in response to an
64      inquiry initiated by the called party. However, only two calls
65      may be made or messages given in response to each such inquir y.
66                (11)(a)      In any civil litigation resulting from a
67      transaction involving a violation of this section, the
68      prevailing party, after judgment in the trial court and
69      exhaustion of all appeals, if any, shall receive his or her
70      reasonable attorney attorney's fees and costs from the
71      nonprevailing party.
72                (b)       The attorney for the prevailing party shall submit a
73      sworn affidavit of his or her time spent on the case and his or
74      her costs incurred for all the motions, hearings, and appeals to
75      the trial judge who presided over the civil case.

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        HB 1095                                                                                               2022




76                (c)       The trial judge shall award the prevailing party the
77      sum of reasonable costs incurred in the action plus a reasonable
78      legal fee for the hours actually spent on the case as sworn to
79      in an affidavit.
80                (d)       Any award of attorney attorney's fees or costs shall
81      become a part of the judgment and subject to execution as the
82      law allows.
83                (e)       In any civil litigation initiated by the department or
84      the Department of Legal Affairs, the court may award to the
85      prevailing party reasonable attorney attorney's fees and costs
86      if the court finds that there was a complete absence of a
87      justiciable issue of either law or fact raised by the losing
88      party or if the court finds bad faith on the part of the losing
89      party.
90                Section 2.       This act shall take effect July 1, 2022.




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                       REGULATORY REFORM SUBCOMMITTEE

                                  HB 1095 by Rep. Beltran
                                   Telephone Solicitation

                                 AMENDMENT SUMMARY
                                    January 20, 2022


Amendment 1 by Rep. Beltran (strike-all):
The strike-all:
   • Provides for the use of an automated system for the selection and dialing of telephone
        numbers instead of one or the other.
   • Revises the definition of “Unsolicited telephonic sales call" to exclude a telephonic sales
        call made: Within 120 days after an express request of the called party.
   • Limits the number of calls and messages to two calls or messages in response to each
        response to an inquiry initiated by a called party.
   • Provides for retroactive application of the bill.
                                           COMMITTEE/SUBCOMMITTEE AMENDMENT
                                                    Bill No. HB 1095   (2022)
       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:       Regulatory Reform
 2     Subcommittee
 3     Representative Beltran offered the following:
 4
 5          Amendment (with title amendment)
 6          Remove everything after the enacting clause and insert:
 7
 8          Section 1.     Paragraphs (g) and (k) of subsection (1),
 9     paragraph (a) of subsection (8), and subsection (11) of section
10     501.059, Florida Statutes, are amended, and paragraph (e) is
11     added to subsection (8) of that section, to read:
12          501.059    Telephone solicitation.—
13          (1)     As used in this section, the term:
14          (g)     "Prior express written consent" means a written
15     agreement that:
16          1.     Bears the signature of the called party;
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                                           COMMITTEE/SUBCOMMITTEE AMENDMENT
                                                  Bill No. HB 1095   (2022)
       Amendment No.


17          2.     Clearly authorizes the person making or allowing the
18     placement of a telephonic sales call by telephone call, text
19     message, or voicemail transmission to deliver or cause to be
20     delivered to the called party a telephonic sales call using an
21     automated system for the selection and or dialing of telephone
22     numbers, the playing of a recorded message when a connection is
23     completed to a number called, the transmission of a text message
24     or the transmission of a prerecorded voicemail;
25          3.     Includes the telephone number to which the signatory
26     authorizes a telephonic sales call to be delivered; and
27          4.     Includes a clear and conspicuous disclosure informing
28     the called party that:
29          a.     By executing the agreement, the called party authorizes
30     the person making or allowing the placement of a telephonic
31     sales call to deliver or cause to be delivered a telephonic
32     sales call to the called party using an automated system for the
33     selection and or dialing of telephone numbers or the playing of
34     a recorded message when a connection is completed to a number
35     called; and
36          b.     He or she is not required to directly or indirectly
37     sign the written agreement or to agree to enter into such an
38     agreement as a condition of purchasing any property, goods, or
39     services.
40          (k)     "Unsolicited telephonic sales call" means a telephonic
41     sales call other than a call made:
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                                           COMMITTEE/SUBCOMMITTEE AMENDMENT
                                                  Bill No. HB 1095   (2022)
       Amendment No.


42          1.    Within 120 days after In response to an express request
43     of the person called party;
44          2.    Primarily in connection with an existing debt or
45     contract, if payment or performance of such debt or contract has
46     not been completed at the time of such call;
47          3.    To a person with whom the telephone solicitor has a
48     prior or existing business relationship; or
49          4.    By a newspaper publisher or his or her agent or
50     employee in connection with his or her business.
51          (8)(a)    A person may not make or knowingly allow a
52     telephonic sales call to be made if such call involves an
53     automated system for the selection and or dialing of telephone
54     numbers or the playing of a recorded message when a connection
55     is completed to a number called without the prior express
56     written consent of the called party.
57          (e)    This subsection does not prohibit the use of an
58     automated telephone dialing system with live messages, or for
59     the transmission of text messages through an automated telephone
60     dialing system, if the call, live message or text message is
61     made or message is given solely in response to an inquiry
62     initiated by the called party. However, only two calls may be
63     made or messages given in response to each such inquiry.
64          (11)(a)    In any civil litigation resulting from a
65     transaction involving a violation of this section, the
66     prevailing party, after judgment in the trial court and
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                                           COMMITTEE/SUBCOMMITTEE AMENDMENT
                                                  Bill No. HB 1095   (2022)
       Amendment No.


67     exhaustion of all appeals, if any, shall receive his or her
68     reasonable attorney attorney's fees and costs from the
69     nonprevailing party.
70          (b)   The attorney for the prevailing party shall submit a
71     sworn affidavit of his or her time spent on the case and his or
72     her costs incurred for all the motions, hearings, and appeals to
73     the trial judge who presided over the civil case.
74          (c)   The trial judge shall award the prevailing party the
75     sum of reasonable costs incurred in the action plus a reasonable
76     legal fee for the hours actually spent on the case as sworn to
77     in an affidavit.
78          (d)   Any award of attorney attorney's fees or costs shall
79     become a part of the judgment and subject to execution as the
80     law allows.
81          (e)   In any civil litigation initiated by the department or
82     the Department of Legal Affairs, the court may award to the
83     prevailing party reasonable attorney attorney's fees and costs
84     if the court finds that there was a complete absence of a
85     justiciable issue of either law or fact raised by the losing
86     party or if the court finds bad faith on the part of the losing
87     party.
88          Section 2. The amendments to s. 501.59, Florida Statutes
89     are intended to be remedial in nature, apply retroactively to
90     July 1, 2021, and to any proceeding or commenced on or after
91     July 1, 2021.
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                                           COMMITTEE/SUBCOMMITTEE AMENDMENT
                                                  Bill No. HB 1095   (2022)
       Amendment No.


92          Section 3.   This act shall take effect July 1, 2022.
93
94           -----------------------------------------------------
95                        T I T L E   A M E N D M E N T
96          Remove lines 6-7 and insert:
97          certain inquiries; providing a limitation; providing
98          for retroactive application; revising provisions for




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                                  Page 5 of 5
HB 1185
                                  HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #:     HB 1185 Legislative Review of Proposed Regulation of Unregulated Functions
SPONSOR(S): Plakon
TIED BILLS:       IDEN./SIM. BILLS: SB 1276

    REFERENCE                                                   ACTION                  ANALYST            STAFF DIRECTOR or
                                                                                                           BUDGET/POLICY CHIEF

    1) Regulatory Reform Subcommittee                                                   Brackett           Anstead

    2) Government Operations Subcommittee

    3) Rules Committee

    4) Commerce Committee

                                                     SUMMARY ANALYSIS
A sunrise review is a formal process of review requiring a cost-benefit analysis be conducted before legislation
proposing to regulate an unregulated profession or occupation is enacted.

Florida’s sunrise review, which was enacted in 1991, is called the Sunrise Act. The Sunrise Act requires the
Legislature to consider certain factors before determining whether to regulate an unregulated profession or
occupation. Those factors include:
     Whether the unregulated practice of the profession or occupation will substantially harm or endanger
        the public health, safety, or welfare;
     Whether the practice of the profession or occupation requires specialized skill or training;
     Whether the regulation will have an unreasonable effect on job creation or job retention in the state;
     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 bill amends the Sunrise Act to:
    Provide that in addition to applying to legislation that regulates an unregulated profession or
        occupation, the Sunrise Act also applies to legislation that substantially expands regulation of an
        already regulated profession or occupation;
    Require proponents of a regulation to provide certain information to the President of the Senate, the
        Speaker of the House of Representatives, and the state agency that is proposed to have jurisdiction of
        the regulation, no later than 30 days prior to the session in which the legislation is to be filed; and
    Require the state agency proposed to have jurisdiction to provide certain information to the President of
        the Senate, the Speaker of the House of Representatives, and the proponents of the regulation within
        25 days after receiving the legislation.

The bill may have a fiscal impact on state government. The bill is not expected to have a fiscal impact on local
governments.

The bill provides for an effective date of July 1, 2022.




This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h1185.RRS
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                                                        FULL ANALYSIS

                                                 I. SUBSTANTIVE ANALYSIS

    A. EFFECT OF PROPOSED CHANGES:
         Current Situation

         Occupational Licensing

         An occupational or professional license is a form of regulation that requires individuals who want to
         perform certain types of work, such as contractors and cosmetologists, to obtain permission from the
         government to perform the work.1 Generally, an individual obtains permission from the government to
         perform a certain type of work by demonstrating that they have the designated knowledge, skills, and
         abilities to perform the work by meeting pre-determined criteria established by the government, such as
         work experience and exams. If the individual successfully completes the pre-determined criteria, the
         government issues the individual a license, which allows them to perform the work. 2

         In the 1950s, less than five percent of U.S. workers were required to have a license to do their jobs.
         Since then the number of workers required to have a license has risen five-fold to more than one-
         quarter of U.S. workers with most of these workers being licensed by the states. Almost two-thirds of
         this change stems from an increase in the number of professions that require a license. The number of
         licensed workers is even higher in Florida, with an estimated 28.7 percent of the workforce being
         licensed by the state.3

         In 2015, the White House published a report on the current state of occupational licensing in the nation.
         The report found that when designed and implemented carefully, requiring occupational licenses offers
         important health and safety protections to consumers as well as benefits to workers. However, the
         report also found that too often licensing requirements are inconsistent, inefficient, arbitrary, and there
         is evidence that the current license regime in the U.S. raises the price of goods and services, restricts
         employment opportunities, and makes it more difficult for workers to take their skills across state lines. 4

         The report stated that because occupations are diverse in their tasks, designing and implementing
         successful occupational license regulations often requires a tailored approach. However, there are a
         number of common factors that policymakers should consider when contemplating enacting, revising,
         or repealing an occupational regulation. Policymakers should:5
              Ensure that restrictions are closely targeted to protecting public health and safety, and are not
                overly burdensome;
              Facilitate a careful consideration of licensure’s costs and benefits; and
              Work to reduce licensing’s barriers to mobility.

         Policymakers can facilitate a careful consideration of licensure costs and benefits through both sunrise
         and sunset reviews. However, evidence suggests that sunrise reviews are more successful at limiting
         the growth of licensing since removing a license is much more difficult than enacting one. Additionally,
         state regulators suggested that sunrise reviews may be more effective than sunset reviews. 6




1 The White House, Occupational Licensing: A Framework for Policymakers, 6 (July 2015)

https://obamawhitehouse.archives.gov/sites/default/files/docs/licensing_report_final_nonembargo.pdf (last visited on Jan. 13, 2022).
2 Bureau of Labor Statistics, Frequently asked questions about data on certifications and licenses,

https://www.bls.gov/cps/certifications -and-licenses-faqs.htm, (last visited on Jan. 13, 2022).
3 White House supra note 1 at 3 and 24.
4 Id.
5 Id. at 41-43
6 Id. at 42, 48-49.
STORAGE NAME: h1185.RRS                                                                                                       PAGE: 2
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         Sunrise Review

         Generally, a sunrise review is a formal process where a legislature scrutinizes legislation proposing to
         regulate an unregulated profession or occupation by requiring a cost-benefit analysis before the
         legislation is enacted. Most sunrise reviews require the proponents of the regulation to outline the
         potential impacts, costs, and benefits of the proposed regulation. Some states require the proponents
         of the regulation to provide certain information to a legislative committee or a state agency for analysis
         and evaluation, which is then provided to the legislature. Policymakers can review the information
         provided before moving forward with the legislation.7

         Currently 12 states, including Florida, have sunrise reviews.8 However, states vary widely in how
         independently and thoroughly they administer sunrise reviews. Colorado requires proponents of
         regulation to submit the proposed regulation along with the potential impacts, costs, and benefits to the
         Colorado Department of Regulatory Agencies for analysis and evaluation. 9 Minnesota requires
         proponents of regulation to file a report outlining the regulation’s potential impacts, costs, and benefits
         with the legislature within 15 days of the bill being introduced. 10 Maine requires sunrise reviews for
         legislation regulating an unregulated profession or occupation and legislation that substantially expands
         regulation of an already regulated profession or occupation. 11 Florida currently requires proponents of
         regulation to file information about the regulation’s potential impacts, costs, and benefits upon
         request.12

        Florida’s Sunrise Act

        Section 11.62, F.S., is Florida’s sunrise review, which is called the Sunrise Act. The Sunrise Act states
        that regulation should not be adopted 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 Sunrise 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.


7 Id. at 48; Iris Hentze, Improving Occupational Licensing with Sunrise and Sunset Reviews, National Conference of State

Legislatures, (July 2018), http://www.ncsl.org/research/labor-and-employment/improving-occupational-licensing-with-sunrise-and-
sunset-reviews.aspx (last visited Jan. 13, 2022); Council on Licensure & Regulation, Sunrise, Sunset and State Agency Audits,
https://www.clearhq.org/page-486181 (last visited Jan. 13, 2022).
8 Council on Licensure & Regulation supra note 5.
9 Colo. Rev. Stat. § 24-34-104.1.
10 Minn. Stat. § 214.002.
11 ME. Rev. Stat. Ann. Tit. 32-1A, § 60-J.
12 S. 11.62(4), F.S.
STORAGE NAME: h1185.RRS                                                                                                    PAGE: 3
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       The Sunrise Act requires proponents of legislation that propose new regulation on professions or
       occupations to provide the following information, upon request, by the agency proposed to have
       jurisdiction or the legislative committee to which the legislation is referred, 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;
              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;
              The details of any previous efforts in this state to implement regulation of the profession or
               occupation; and
              Any other information the agency or the committee considers relevant to the analysis of the
               proposed legislation.

       The Sunrise 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 must
       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.




STORAGE NAME: h1185.RRS                                                                                     PAGE: 4
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         State Agency Rulemaking and Statements of Estimated Regulatory Costs (SERC)

         The Administrative Procedure Act (APA)13 sets forth a uniform set of procedures that agencies must
         follow when exercising authority to make rules delegated to the agency by the Legislature. Rulemaking
         authority is delegated by the Legislature through statute and authorizes agencies to “adopt, develop,
         establish, or otherwise create” rules.14

         The APA requires an agency to complete a statement of estimated regulatory costs (SERC) in certain
         circumstances. A SERC is an agency estimate of the potential impact of a proposed rule on the public,
         particularly the potential costs to the public of complying with the proposed rule, as well as to the
         agency and other governmental entities to implement the rule. Agencies are encouraged to prepare a
         SERC before adopting, amending, or repealing any rule. A SERC is required, however, if the proposed
         rule will have a negative impact on small businesses or increase regulatory costs by more than
         $200,000 in the aggregate within one year after implementation of the rule. 15 A SERC must include:16

                     Good faith estimates of the number of people and entities affected by the proposed rule;
                     Good faith estimates of the cost to the agency and other governmental entities to implement the
                      proposed rule;
                     Good faith estimates of the transactional costs likely to be incurred by people, entities, and
                      governmental agencies for compliance. Transactional costs is defined to mean direct costs that
                      are readily ascertainable based upon standard business practices, and include filing fees, the
                      cost of obtaining a license, the cost of equipment required to be installed or used or procedures
                      required to be employed in complying with the rule, additional operating costs;
                     An analysis of the proposed rule’s impact on small businesses, counties, and cities; and
                     Any additional information that the agency determines may be useful.

         The SERC must also include an economic analysis on the likelihood that the proposed rule will have an
         adverse impact in excess of $1 million within the first 5 years of implementation on: 17

                     Economic growth, private-sector job creation or employment, or private-sector investment;
                     Business competitiveness, productivity, or innovation; or
                     Regulatory costs, including any transactional costs.

         Effect of the Bill

         The bill provides that in addition to applying to legislation that regulates an unregulated profession or
         occupation, the Sunrise Act also applies to legislation that substantially expands regulation of an
         already regulated profession or occupation.

         The bill defines the term “substantial expansion of regulation” to mean to expand the scope of practice
         for current practitioners of a profession or occupation by regulating an activity that is not regulated by
         the state.

         The bill requires proponents of legislation proposing regulation to provide the Legislature and the state
         agency proposed to have jurisdiction certain information documenting the need for regulation by a
         certain time, instead of doing so only upon request. The proponents must also file a draft of the
         legislation and a summary of any bills on the same subject that have been filed with the Legislature in
         the preceding five years. The proponents must provide this information to the President of the Senate,
         the Speaker of the House of Representatives, and the agency proposed to have jurisdiction over the
         regulation at least 30 days before the session in which the legislation is filed.


13 Ch. 120, F.S.
14 Ss. 120.52(16)-(17) and 120.54(1)(a), F.S; Ch. 120, F.S.
15 Ss. 120.54(3)(b) and 120.541(2), F.S.
16 S. 120.541(2), F.S.
17 Id.
STORAGE NAME: h1185.RRS                                                                                         PAGE: 5
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       In addition to the current information an agency must provide to the Legislature, the bill provides that an
       agency must also provide the Legislature with the following information:

              Good faith estimates of the number of persons affected by the proposed regulation;
              Good faith estimates of transactional costs likely to be incurred by people, entities, and
               governmental agencies for compliance.
                   o “Transactional costs” are defined to mean direct costs that are ascertainable based upon
                       standard business practices, and include filing fees, the cost of obtaining a license,
                       regulatory compliance costs, operating costs, the cost of monitoring and reporting, and
                       any other costs necessary to comply with the rule;
              The anticipated costs to implement and enforce the proposed regulation, and any anticipated
               license fees necessary to cover the anticipated costs;
              Whether additional statutory or rulemaking authority is necessary to implement and enforce the
               proposed regulation;
              A comparison of similarly situated professions and occupations regulated by the agency;
              The anticipated impact of the proposed regulation on small businesses, counties, and cities;
              The anticipated impact of the proposed regulation on economic growth, private-sector job
               creation or employment, and business competitiveness, including the ability of persons doing
               business in the state to compete with persons doing business in other states or domestic
               markets; and
              Any other information the agency determines relevant to the analysis of the proposed
               regulation.

       The bill provides that the state agency proposed to have jurisdiction must provide the information to the
       President of the Senate, the Speaker of the House of Representatives, and the proponents of the
       legislation within 25 days of receiving the draft legislation from the proponents. If a state agency fails to
       provide the required information, they must notify the proponents of the legislation, the President of the
       Senate, and the Speaker of the House of Representatives that they could not comply with the Sunrise
       Act’s requirements because the agency was unable to acquire sufficient information.


   B. SECTION DIRECTORY:
       Section 1.     Amends s. 11.62, F.S., revising the requirements of the Sunrise Act.

       Section 2.     Provides an effective date of July 1, 2022.


                          II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT

   A. FISCAL IMPACT ON STATE GOVERNMENT:

       1. Revenues:
           None.

       2. Expenditures:
           Indeterminate. The bill will require agencies to provide certain information to the Legislature. The
           cost to provide the information is indeterminate but may be absorbed within existing resources.

   B. FISCAL IMPACT ON LOCAL GOVERNMENTS:

       1. Revenues:
           None.

       2. Expenditures:
           None.
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   C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
       The bill may have an indeterminate, positive 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 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. The bill does not require agency rulemaking.

   C. DRAFTING ISSUES OR OTHER COMMENTS:
       None.


                          IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES




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           HB 1185                                                                                               2022




    1                                         A bill to be entitled
    2                An act relating to legislative review of proposed
    3                regulation of unregulated functions; amending s.
    4                11.62, F.S.; defining terms; providing that certain
    5                requirements must be met before the adoption of a
    6                regulation of an unregulated profession or occupation
    7                or the substantial expansion of the regulation of a
    8                regulated profession or occupation; requiring the
    9                proponents of legislation that proposes such
10                   regulation to provide certain information to the state
11                   agency proposed to have jurisdiction over the
12                   regulation and the Legislature by a certain date;
13                   requiring such state agency to provide certain
14                   information to the Legislature within a certain time
15                   period; providing an exception; revising information
16                   that a legislative committee must consider when
17                   determining whether a regulation is justified;
18                   providing an effective date.
19
20         Be It Enacted by the Legislature of the State of Florida:
21
22                   Section 1.       Section 11.62, Florida Statutes, is amended to
23         read:
24                   11.62     Legislative review of proposed regulation of
25         unregulated functions.—

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26                (1)       This section may be cited as the "Sunrise Act."
27                (2)       It is the intent of the Legislature:
28                (a)       That a no profession or occupation may not be subject
29      to regulation by the state unless the regulation is necessary to
30      protect the public health, safety, or welfare from significant
31      and discernible harm or damage and that the police power of the
32      state shall be exercised only to the extent necessary for that
33      purpose.; and
34                (b)       That a no profession or occupation may not be
35      regulated by the state in a manner that unnecessarily restricts
36      entry into the practice of the profession or occupation or
37      adversely affects the availability of the professional or
38      occupational services to the public.
39                (3)       As used in this section, the term:
40                (a)       "Substantial expansion of regulation" means to expand
41      the scope of practice for current practitioners of a profession
42      or occupation by regulating an activity that is not regulated by
43      the state.
44                (b)       "Transactional costs" means direct costs that are
45      ascertainable based upon standard business practices, including
46      filing fees, license fees, regulatory compliance costs,
47      operating costs, monitoring and reporting costs, and any other
48      costs necessary to comply with the proposed regulation.
49                (4)       In determining whether to regulate a profession or
50      occupation, the Legislature shall consider the following

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        HB 1185                                                                                               2022




51      factors:
52                (a)       Whether the unregulated practice of the profession or
53      occupation will substantially harm or endanger the public
54      health, safety, or welfare, and whether the potential for harm
55      is recognizable and not remote.;
56                (b)       Whether the practice of the profession or occupation
57      requires specialized skill or training, and whether that skill
58      or training is readily measurable or quantifiable so that
59      examination or training requirements would reasonably assure
60      initial and continuing professional or occupational ability.;
61                (c)       Whether the regulation will have an unreasonable
62      effect on job creation or job retention in the state or will
63      place unreasonable restrictions on the ability of individuals
64      who seek to practice or who are practicing a given profession or
65      occupation to find employment.;
66                (d)       Whether the public is or can be effectively protected
67      by other means.; and
68                (e)       Whether the overall cost-effectiveness and economic
69      impact of the proposed regulation, including the indirect costs
70      to consumers, will be favorable.
71                (5)       In order to ensure that the Legislature only adopt s
72      those regulations that are necessary to protect the public and
73      are the least restrictive regulatory alternative consistent with
74      the public interest, the requirements of this section must be
75      met before the adoption of:

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         HB 1185                                                                                               2022




 76                (a)       Any regulation of a profession or occupation that is
 77      not already expressly subject to state regulation; or
 78                (b)       Any regulation that substantially expands the
 79      regulation of a regulated profession or occupation.
 80                (6)(4)      The proponents of legislation, including any
 81      individual, group, or entity, that proposes provides for the
 82      regulation of an unregulated profession or occupation or the
 83      substantial expansion of the regulation of a regulated
 84      profession or occupation not already expressly subject to state
 85      regulation shall provide, upon request, the following
 86      information in writing to the state agency that is proposed to
 87      have jurisdiction over the regulation, the President of the
 88      Senate, and the Speaker of the House of Representatives at least
 89      30 days before the regular session of the Legislature in which
 90      the legislation is to be filed and to the legislative committees
 91      to which the legislation is referred:
 92                (a)       A copy of the draft legislation proposing to regulate
 93      an unregulated profession or occupation or the substantial
 94      expansion of the regulation of a regulated profession or
 95      occupation.
 96                (b)(a)      The number of individuals or businesses that would
 97      be subject to the regulation.;
 98                (c)(b)      The name of each association that represents
 99      members of the profession or occupation, together with a copy o f
100      its codes of ethics or conduct.;

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         HB 1185                                                                                               2022




101                (d)(c)     Documentation of the nature and extent of the harm
102      to the public caused by the unregulated practice of the
103      profession or occupation, including a description of any
104      complaints that have been lodged against persons who have
105      practiced the profession or occupation in this state during the
106      preceding 3 years.;
107                (e)(d)     A list of states that regulate the profession or
108      occupation, and the dates of enactment of each law provi ding for
109      such regulation and a copy of each law.;
110                (f)(e)     A list and description of state and federal laws
111      that have been enacted to protect the public with respect to the
112      profession or occupation and a statement of the reasons why
113      these laws have not proven adequate to protect the public.;
114                (g)(f)     A description of the voluntary efforts made by
115      members of the profession or occupation to protect the public
116      and a statement of the reasons why these efforts have not proven
117      are not adequate to protect the public.;
118                (h)(g)     A copy of any federal legislation mandating
119      regulation.;
120                (i)(h)     An explanation of the reasons why other types of
121      less restrictive regulation would not effectively protect the
122      public.;
123                (j)(i)     The cost, availability, and appropriateness of
124      training and examination requirements.;
125                (k)(j)     The cost of regulation, including the indirect cost

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126      to consumers, and the method proposed to finance the
127      regulation.;
128                (l)(k)      The cost imposed on applicants or practitioners or
129      on employers of applicants or practitioners as a result of the
130      regulation.;
131                (m)(l)      The details of any previous efforts in this state
132      to implement regulation of the profession or occupation ,
133      including a summary of bills filed in the Legislature on the
134      same subject in the preceding 5 years.; and
135                (n)(m)      Any other information the proponents of the
136      legislation consider agency or the committee considers relevant
137      to the analysis of the proposed legislation.
138                (7)(5)      The state agency proposed to have jurisdiction over
139      the regulation shall provide the President of the Senate and the
140      Speaker of the House of Representatives with the following
141      information within 25 days after the proponents of the
142      legislation submit the draft legislation to the state agency in
143      accordance with subsection (6) The agency shall provide the
144      Legislature with information concerning the effect of proposed
145      legislation that provides for new regulation of a profession or
146      occupation regarding:
147                (a)       The departmental resources necessary to implement and
148      enforce the proposed regulation, including, but not limited to,
149      the anticipated costs to implement and enforce the proposed
150      regulation and any anticipated license fees necessary to cover

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151      the anticipated costs.;
152                (b)       Whether additional statutory or rulemaking authority
153      is necessary to implement and enforce the proposed regulation.
154                (c)       A comparison of similarly situated professions and
155      occupations regulated by the state agency.
156                (d)       The anticipated impact on small businesses as defined
157      in s. 288.703 and small counties and small cities as those terms
158      are defined in s. 120.52.
159                (e)       The anticipated impact on business competitiveness,
160      including the ability of persons who are doing business in the
161      state to compete with persons who are doing business in other
162      states or domestic markets.
163                (f)       The anticipated impact on economic growth and private
164      sector job creation or employment.
165                (g)       The technical sufficiency of the proposal for
166      regulation, including its consistency with the regulation of
167      other professions and occupations under existing law.; and
168                (h)(c)      If applicable, any alternatives to the proposed
169      regulation which may result in a less restrictive or more cost-
170      effective regulatory scheme.
171                (i)       A good faith estimate of the number of persons who
172      would be subject to the proposed regulation.
173                (j)       A good faith estimate of the transactional costs
174      likely to be incurred by individuals and entities, including
175      local government entities, that would be required to comply with

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      CODING: Words stricken are deletions; words underlined are additions.
                                                                                                              hb1185-00
F   L   O    R   I   D   A      H   O   U   S   E    O    F     R    E   P    R   E   S   E   N   T   A   T    I   V   E   S




         HB 1185                                                                                               2022




176      the proposed regulation.
177                (k)       Any other information the state agency determines
178      relevant to the analysis of the proposed regulation.
179                (8)       If the state agency that is proposed to have
180      jurisdiction over the regulation is unable to provide the
181      information required by subsection (7), such state agency shall
182      notify the proponents of the legislation, the President of the
183      Senate, and the Speaker of the House of Representatives that the
184      agency was unable to acquire sufficient information to comply
185      with that subsection.
186                (9)(6)      When making a recommendation concerning proposed
187      legislation providing for new or expanded regulation of a
188      profession or occupation, a legislative committee shall
189      determine:
190                (a)       Whether the regulation is justified based on the
191      criteria specified in subsection (3), the information submitted
192      pursuant to request under subsection (4), and the information
193      provided under subsections (4), (6), and (7) subsection (5);
194                (b)       The least restrictive and most cost-effective
195      regulatory scheme that will adequately protect the public; and
196                (c)       The technical sufficiency of the proposed legislation,
197      including its consistency with the regulation of other
198      professions and occupations under existing law.
199                Section 2.       This act shall take effect July 1, 2022.



                                                       Page 8 of 8

      CODING: Words stricken are deletions; words underlined are additions.
                                                                                                              hb1185-00
PCS for HB 635
                                  HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #:     PCS for HB 635 Building Permits
SPONSOR(S): Regulatory Reform Subcommittee
TIED BILLS:       IDEN./SIM. BILLS:

    REFERENCE                                                   ACTION                  ANALYST            STAFF DIRECTOR or
                                                                                                           BUDGET/POLICY CHIEF

    Orig. Comm.: Regulatory Reform Subcommittee                                         Brackett           Anstead


                                              SUMMARY ANALYSIS
The Florida Building Codes Act provides a mechanism for the uniform adoption, updating, interpretation, and
enforcement of a single, unified state building code. The Florida Building Code (Building Code) must be
applied, administered, and enforced uniformly and consistently from jurisdiction to jurisdiction by local
governments through the issuance of permits and completion of inspections.

It is unlawful to construct, erect, alter, repair, secure, or demolish any building without first obtaining a building
permit. Any construction work that requires a building permit also requires plan reviews and inspections by the
building official to ensure the work complies with the Building Code.

The state’s Chief Financial Officer, as the State Fire Marshal, is required to adopt the Florida Fire Prevention
Code (Fire Prevention Code), which sets forth fire safety standards for property, and is enforced by local fire
safety officials within each local government in the state.

If a building is subject to the Fire Prevention Code, a building permit also requires plan reviews and inspections
by the local fire safety official.

If the local building official or plans examiner finds that building plans do not comply with the Building Code, the
local building official or inspector must identify the specific plan features that do not comply with the Building
Code, identify the specific chapters and sections upon which the finding is based, and provide this information
to the local enforcing agency. The local enforcing agency must provide this information to the permit applicant.

The bill:
    Requires local governments that make substantive changes to building plans to notify the permitholder
        of the specific reasons for changes.
    Prohibits local governments from making substantive changes to plans after a permit has been issued
        unless the changes are required for compliance with the Building Code or the Fire Prevention Code.
    Requires a building official or inspector who requests another person review building plans, notify the
        local government if such person determines the plans do not comply with the Building Code.
    Requires a local fire official to notify the permit applicant if building plans do not comply with the Fire
        Prevention Code and give specific reasons why the plans are not in compliance.
    Allows a plans reviewer, inspector, building official or fire safety inspector to be disciplined for failure to
        notify the appropriate person of the reasons for making substantive changes to building plans .
    Prohibits local governments from prohibiting or restricting private property owners from demolishing
        single-family buildings that are in certain flood zones, while exempting certain historic buildings.
    Limits the review process for applications for such demolition permits and provides that such
        applications may not be subject to additional local regulations or public hearings.
    Prohibits local governments from requiring additional building requirements for new homes built on the
        construction site of such demolished single-family buildings.

The bill does not appear to have a fiscal impact on state and local governments.

The bill provides for an effective date of July 1, 2022.



This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: pcs0635.RRS
DATE: 1/18/2022
                                                     FULL ANALYSIS

                                              I. SUBSTANTIVE ANALYSIS

    A. EFFECT OF PROPOSED CHANGES:
        Florida Building Code and Fire Prevention Code

        In 1974, Florida adopted legislation requiring all local governments to adopt and enforce a minimum
        building code that would ensure that Florida’s minimum standards were met. Local governments could
        choose from four separate model codes. The state’s role was limited to adopting all or relevant parts of
        new editions of the four model codes. Local governments could amend and enforce their local codes as
        they desired.1

        In 1992, Hurricane Andrew demonstrated that Florida’s system of local codes did not work. Hurricane
        Andrew easily destroyed those structures that were allegedly built according to the strongest code. The
        Governor eventually appointed a study commission to review the system of local codes and make
        recommendations for modernizing the system. The 1998 Legislature adopted the study commission’s
        recommendations for a single state building code and enhanced the oversight role of the state over
        local code enforcement. The 2000 Legislature authorized implementation of the Florida Building Code
        (Building Code), and that first edition replaced all local codes on March 1, 2002. 2 The current edition of
        the Building Code is the seventh edition, which is referred to as the 2020 Florida Building Code.3

        Chapter 553, part IV, F.S., is known as the “Florida Building Codes Act” (Act). The purpose and intent
        of the Act is to provide a mechanism for the uniform adoption, updating, interpretation, and
        enforcement of a single, unified state building code. The Building Code must be applied, administered,
        and enforced uniformly and consistently from jurisdiction to jurisdiction. 4

        The Florida Building Commission (Building Commission) was statutorily created to implement the
        Building Code. The Building Commission, which is housed within the Department of Business and
        Professional Regulation (DBPR), is a 19-member technical body made up of design professionals,
        contractors, and government experts in various disciplines covered by the Building Code. The
        Commission reviews several International Codes published by the International Code Council, the
        National Electric Code, and other nationally adopted model codes to determine if the Building Code
        needs to be updated and adopts an updated Building Code every three years.5

        Building Code Administrators, Inspectors, and Plans Examiners

        Building code administrators, inspectors, and plans examiners are regulated by the Building Code
        Administrators and Inspectors Board (BCAIB) within DBPR. The BCAIB consists of nine members
        appointed by the Governor and subjected to confirmation by the Senate. The BCAIB meets to approve
        or deny applications for licensure, review disciplinary cases, and conduct informal hearings relating to
        discipline.6

        A building code administrator, otherwise known as a building official, is a local government employee or
        a person contracted by a local government who supervises Building Code activities, including plans
        review, enforcement, and inspection.7




1 The Florida Building Commission Report       to the 2006 Legislature, Florida Department of Community Affairs, p. 4,
http://www.floridabuilding.org/ fbc/publications/2006_Legislature_Rpt _rev2.pdf (last visited Jan. 4, 2022).
2 Id.
3 Florida Building Commission Homepage, https://floridabuilding.org/c/default.aspx (last visited Jan. 4, 2022).
4 See s. 553.72(1), F.S.
5 Ss. 553.73, and 553.74, F.S.
6 See Ss. 120.569, 120.57(1)-(2), 468.605, 468.606, and 468.621, F.S.
7 S. 468.603(2), F.S.
STORAGE NAME: pcs0635.RRS                                                                                                PAGE: 2
DATE: 1/18/2022
        A building code inspector (inspector) is a local government employee or a person contracted by a local
        government who inspects construction that requires permits to determine compliance with the Building
        C ode and state accessibility laws. Inspectors are divided into several different categories. An
        inspector’s ability to practice is limited to the category or categories for which the inspector has been
        licensed. The inspector categories are:8

                  Building inspector;
                  Coastal construction inspector;
                  Commercial electrical inspector;
                  Residential electrical inspector;
                  Mechanical inspector;
                  Plumbing inspector;
                  Residential inspector; and
                  Electrical inspector.

        A plans examiner reviews plans submitted for building permits to determine design compliance with the
        Building Code. The term includes a residential plans examiner who is qualified to determine that plans
        submitted for building permits comply with the applicable residential building, plumbing, mechanical,
        electrical, gas, energy, accessibility, and other applicable construction codes. A plans examiner’s ability
        to practice is limited to the category or categories for which the examiner is licensed. The plans
        examiner categories are:9

                  Building plans examiner;
                  Plumbing plans examiner;
                  Mechanical plans examiner; and
                  Electrical plans examiner.

        Florida Fire Prevention Code

        Florida’s fire prevention and control law, ch. 633, F.S., designates the state’s Chief Financial Officer as
        the State Fire Marshal. The State Fire Marshal, through the Division of State Fire Marshal within the
        Department of Financial Services (DFS), is charged with enforcing the provisions of ch. 633, F.S., and
        all other applicable laws relating to fire safety, and has the responsibility to minimize the loss of life and
        property in this state due to fire.10 Pursuant to this authority, the State Fire Marshal regulates, trains,
        and certifies fire service personnel and fire safety inspectors; investigates the causes of fires; enforces
        arson laws; regulates the installation of fire equipment; conducts fire safety inspections of state
        property; and operates the Florida State Fire College.

        The State Fire Marshal also adopts by rule the Florida Fire Prevention Code (Fire Prevention Code),
        which contains all fire safety laws and rules that pertain to the design, construction, erection, alteration,
        modification, repair, and demolition of public and private buildings, structures, and facilities, and the
        enforcement of such fire safety laws and rules, at ch. 69A-60, F.A.C.

        The State Fire Marshal adopts a new edition of the Fire Prevention Code every three years.11 When
        adopting the Fire Prevention Code the Fire Marshal is required to adopt the most current version of the
        national fire and life safety standards set forth by the National Fire Protection Association (NFPA)
        including the:12

                  NFPA’s Fire Code (1);
                  Life Safety Code (101); and

8 S. 468.603(4)  and (5), F.S.
9 S. 468.603(8),  F.S.
10 S. 633.104, F.S.
11 S. 633.202, F.S.
12 S. 633.202(2), F.S. Founded in 1896, the National Fire Protection Association delivers information and knowledge

through more than 300 consensus codes and standards, research, training, education, outreach and advocacy; and by
STORAGE NAME: pcs0635.RRS                                                                                       PAGE: 3
DATE: 1/18/2022
                Guide on Alternative Approaches to Life Safety (101A).

        The State Fire Marshal may modify the national fire safety and life safety standards as needed to
        accommodate the specific needs of the state.13

        The most recent Fire Prevention Code is the 7th edition, which is referred to as the 2020 Florida Fire
        Prevention Code. The 7th edition of the Fire Prevention Code took effect on December 31, 2020.14

        The Building Code and the Fire Prevention Code

        The Building Code and the Fire Prevention Code work parallel, but are independent of each other. The
        Building Commission updates and adopts the Building Code, which must reference the Fire Prevention
        Code. However, the Fire Prevention Code is adopted, modified, interpreted, and maintained by DFS.
        The Building Commission may not adopt a fire prevention or life safety code, and nothing in the
        Building Code may affect the statutory powers, duties, and responsibilities of any local fire safety official
        or DFS.15

        Conflicting requirements between the Building Code and the Fire Prevention Code must be resolved by
        agreement between the Building Commission and the State Fire Marshal. The agreement must be in
        favor of the requirement that offers the greatest degree of life safety or alternatives that would provide
        an equivalent degree of life safety and an equivalent method of construction.16

        If the Building Commission and State Fire Marshal are unable to agree on a resolution, the question
        must be referred to a mediator, mutually agreeable to both parties, to resolve the conflict in favor of the
        provision that offers the greatest life safety, or alternatives that would provide an equivalent degree of
        life safety and an equivalent method of construction.17


        Fire Safety Enforcement by Local Governments

        State law requires all municipalities, counties, and special districts with fire safety responsibilities to
        enforce the Fire Prevention Code as the minimum fire prevention code to operate uniformly among
        local governments and in conjunction with the Building Code.18 These local enforcing authorities may
        adopt more stringent fire safety standards, subject to certain requirements in s. 633.208, F.S., but may
        not enact fire safety ordinances that conflict with ch. 633, F.S., or any other state law. 19

        The chiefs of local government fire service providers (or their designees) are authorized to enforce ch.
        633, F.S., and rules within their respective jurisdictions as agents of those jurisdictions, not agents of
        the State Fire Marshal.20

        Each county, municipality, and special district with fire safety enforcement responsibilities is also
        required to employ or contract with a fire safety inspector to conduct all fire safety inspections required
        by law.21


partnering with others who share an interest in furthering the mission. NFPA, About NFPA, http://www.nfpa.org/about-nfpa
(last visited on Jan. 4, 2022).
13 Id.
14 Division of State Fire Marshal, Florida Fire Prevention Code (FFPC),

https://www.myfloridacfo.com/division/sfm/bfp/ floridafirepreventioncodepage.htm (last visited Jan. 4, 2022).
15 S. 553.73(1), F.S.; Florida Department of Financial Services, Agency Analysis of 2022 House Bill 635, p.3 (Jan. 4,

2022).
16 S. 553.73(1), F.S. Similar provisions apply if a local building official and local fire safety official cannot agree. See s.

553.73(11), F.S.
17 Id.
18 Ss. 633.108 and 633.208, F.S.
19 Ss. 633.208 and 633.214(4), F.S.
20 S. 633.118, F.S.
21 S. 633.216(1), F.S.
STORAGE NAME: pcs0635.RRS                                                                                               PAGE: 4
DATE: 1/18/2022
        A fire safety inspector is a person who is officially assigned the duties of conducting fire safety
        inspections of buildings and facilities on a recurring or regular basis on behalf of the state or any
        county, municipality, or special district with fire safety responsibilities. Fire safety inspectors are
        certified and regulated by the State Fire Marshal and are separate from building officials, inspectors,
        and plans examiners who are regulated by the BCAIB.22

        Building Permits

        It is the intent of the Legislature that local governments have the power to inspect all buildings,
        structures, and facilities within their jurisdiction in protection of the public’s health, safety, and welfare. 23
        Every local government must enforce the Building Code and issue building permits.24

        It is unlawful for a person, firm, or corporation to construct, erect, alter, repair, secure, or demolish any
        building without first obtaining a building permit from the local government or from such persons as
        may, by resolution or regulation, be directed to issue such permit, upon the payment of reasonable fees
        as set forth in a schedule of fees adopted by the enforcing agency. 25 A building permit is not valid until
        the fees for the permit have been paid.26

        A building permit is an official document or certificate issued by the local building official that authorizes
        performance of a specific activity.27 Any construction work that requires a building permit also requires
        plan reviews and inspections by the building official to ensure the work complies with the Building
        Code.28

        Building Plans – Current Situation

        To obtain a permit an applicant must complete an application for the proposed work on the form
        furnished by the local enforcing agency, which must be posted on its website.29

        An application for a permit must include building plans. A local enforcing agency may not issue a permit
        until the building official or plans examiner has reviewed the building plans and determined that they
        comply with the Building Code.30

        A building official or plans examiner does not review building plans to determine if they comply with the
        Fire Prevention Code. If the building or structure is subject to the Fire Prevention Code, the local fire
        safety official must also review the building plans.31 A local enforcing agency may not issue the permit
        until the local fire safety official has approved the plans. However, if the building or structure is not
        subject to the Fire Prevention Code, the local enforcing agency may not require the local fire safety
        inspector to review the plans.32

        When the building official issues the permit, the building official must also approve the plans by writing
        or stamping, “Reviewed for Code Compliance” on the plans. The local building official must keep one
        set of plans and another set must be returned to the applicant, who must keep the set at the work
        site.33



22 Ss. 633.102(12)   and 633.216, F.S.
23 S. 553.72, F.S.
24 Ss. 125.01(1)(bb), 125.56(1), and 553.80(1), F.S.
25 See ss. 125.56(4)(a) and 553.79(1), F.S.
26 S. 109.1 of the Seventh edition of the Florida Building Code (Building).
27 S. 468.603(2), F.S; S. 202 of the Seventh edition of the Florida Building Code (Building).
28 Ss. 107, 110.1, and 110.3 of the Seventh edition of the Florida Building (Building).
29 Ss. 125.56(4)(b), 553.79(1), and 713.135(5) and (6), F.S.
30 S. 553.79(2), F.S.
31 Id.
32 Id.
33 S. 107.3.1 of the Seventh edition of the Florida Building Code (Building).
STORAGE NAME: pcs0635.RRS                                                                                          PAGE: 5
DATE: 1/18/2022
        Construction work must be in accordance with the approved plans, and any changes made during
        construction that are not in compliance with the approved plans must be resubmitted for approval as an
        amended set of construction documents.34

        If the local building official or plans examiner finds that building plans do not comply with the
        Building Code, the local building official or inspector must identify the specific plan features that do
        not comply with the Building Code, identify the specific chapters and sections upon which the finding
        is based, and provide this information to the local enforcing agency. The local enforcing agency must
        provide this information to the permit applicant.35

        If a building official or plans reviewer denies a permit application, revokes, or requests a modification
        of a building permit, the building official or plans reviewer must give the permit applicant a reason for
        denying, revoking, or requesting a modification of the permit. The reason must be based on
        compliance with the Building Code or a local ordinance. Failing to provide a reason for denying or
        revoking a building permit, which is based on compliance with the Building Code or a local ordinance,
        is grounds for discipline against the building official or plans reviewer’s license.36 The Fire Prevention
        Code is not currently included in these provisions.

        However, current law is not clear on whether local governments must notify permitholders about the
        specific reasons why buildings plans do not comply with the Building Code or the Fire Prevention Code,
        if they make or require substantive changes to building plans after the permit is issued.

        According to the sponsor, there have been industry reports that building inspectors and local fire
        officials are making substantive changes to building plans after the building permit has been issued,
        which deviate from the Building Code or Fire Prevention Code. These changes can lead to delays in
        construction and can also increase the costs of construction.37

        Building Plans – Effect of the Bill

        The bill provides that if a building official or inspector requests another person to review building plans
        and that person identifies specific plan features that do not comply with the Building Code, the building
        official or inspector must provide this information to the local enforcing agency.

        If a local government determines that building plans in an application for a building permit do not
        comply with the Fire Prevention Code, the local fire official must identify the specific plan features that
        do not comply with the applicable codes, identify the specific code chapters and sections upon whic h
        the determination is based, and provide this information to the permit applicant. If the local fire official is
        a certified fire safety inspector, failing to provide such information to the permit applicant is grounds for
        discipline against the local fire official’s certificate.

        The bill provides that after a local government issues a building permit, the local government may not
        make or require any substantive changes to the building plans unless the changes are required for
        compliance with the Building Code, the Fire Prevention Code, or local amendments to such codes.

        If a local government makes substantive changes to building plans after the permit is issued, the local
        government must identify the specific plan features that do not comply with the applicable codes,
        identify the specific code chapters and sections upon which the finding is based, and provide this
        information to the permitholder. If the changes are required to comply with the Fire Prevention Code,
        the local fire official must also provide this information to the permitholder.

        The bill provides that a plans reviewer or inspector who fails to provide a building official with the
        reasons for making or requiring substantive changes to building plans is subject to discipline against

34 S. 107.4 of the Seventh   edition of the Florida Building Code (Building).
35 S. 553.79(2),  F.S.
36 S. 553.79(1), F.S.
37 Testimony from Representative Randall Scott Maggard, 1/12/2022 House Regulatory Reform Subcommittee,

https://thefloridachannel.org/ videos/1-12-22-house-regulatory -reform-subcommittee/ (last visited Jan. 17, 2022).
STORAGE NAME: pcs0635.RRS                                                                                            PAGE: 6
DATE: 1/18/2022
        their license. Failing to provide a permit applicant or permitholder with the reasons for making or
        requiring substantive changes to building plans is grounds for discipline against a building official’s
        license.

        The bill also provides that a local fire official, who is a certified fire safety inspector, who fails to provide
        a permitholder with the specific reasons for making or requiring substantive changes to building plans is
        subject to discipline against their certification.

        Demolition Building Permits – Current Situation

        It is unlawful for a person, firm, or corporation to construct, erect, alter, repair, secure, or demolish any
        building without first obtaining a building permit from the local government or from such persons as
        may, by resolution or regulation, be directed to issue such permit, upon the payment of reasonable fees
        as set forth in a schedule of fees adopted by the enforcing agency. 38

        According to news reports, since 2019, there has been an uptick in permits to demolish older single-
        family homes in South Florida in order to build new single-family homes.39

        Some local governments in Florida have adopted land development regulations that determine certain
        older single-family buildings to be historic. Some local governments have placed restrictions on
        property owners from obtaining permits for the demolition of the older single- family buildings that the
        local governments have deemed historic. Below are examples of such regulations:

                  Prohibiting certain building permits, such as demolition permits, for buildings that are being
                   considered for historic designation.40
                  Requiring a public hearing before a preservation board. 41
                  Requiring a special demolition permit.42
                  Requiring new construction on the site of the demolished structure to be subject to certain
                   architectural regulations, related to:43
                      o The colors, pattern, and trim used in the building’s façade.
                      o Design of the roof.
                      o The proportions and relationships between doors and windows.

        Proponents to these land development regulations argue that people buy property in order to demolish
        homes that are designed by noteworthy architects, owned by famous people, or reflect Florida’s history.
        Proponents argue these regulations are needed to protect Florida’s history and preserve Florida’s
        character and architectural style.44

        Opponents of these regulations argue that these older homes are damaged, do not meet the Building
        Code’s minimum flood elevation requirements, and can be demolished for a new home that meets the
        requirements of the current Building Code.45


38 S. 553.79(1),   F.S.
39 Pedro Portal, More demolition applications for historic houses in Miami Beach, Miami Herald (Jan. 9, 2022)

https://www.miamiherald.com/news/business/real -estate-news/article257166757.html (last visited Jan. 12, 2022).
40 Id.
41 Article 8, Coral Gables Zoning Code; Preserving Our Past: A Guide to Historic Preservation in Coral Gables,

https://evogov.s3.amazonaws.com/media/91/media/52093.pdf (last visited Jan. 17, 2022).
42 Sec. 54-71., Town of Palm Beach Code of Ordinances.
43 Sec. 54-122., Town of Palm Beach Code of Ordinances.
44 Miami Herald Editorial Board, Historic-home teardowns risk washing away Miami Beach’s character in a flood of cash,

Miami Herald (Jan. 11, 2022) https://www.miamiherald.com/opinion/editorials/article257198932.html (last visited Jan. 17,
2022).
45 Pedro Portal, Miami Beach older homes demolished in part because of 'flood requirements', Miami Herald (Jan. 9,

2022) https://www.miamiherald.com/news/business/real -estate-news/article257166737.html (last visited Jan. 12, 2022);
CBS Miami, Miami Beach Waterfront Home Of Notorious Prohibition-Era Gangster Al Capone Slated For Demolition,
https://miami.cbslocal.com/video/5955888-miami-beach-waterfront-home-of-notorious-prohibition-era-gangster-al-capone-
slated-for-demolition/ (last visited Jan. 17, 2022).
STORAGE NAME: pcs0635.RRS                                                                                        PAGE: 7
DATE: 1/18/2022
        Demolition Building Permits – Effect of the Bill

        The bill provides that a local law, ordinance, or regulation may not prohibit or otherwise restrict the
        ability of a private property owner to obtain a building permit to demolish his or her single-family
        residential structure provided that:

                Such structure Is located in a coastal high-hazard area, moderate flood zone, or special flood
                 hazard area according to a Flood Insurance Rate Map issued by the Federal Emergency
                 Management Agency for the purpose of participating in the National Flood Insurance Program;46
                The lowest finished floor elevation of such structure is at or below base flood elevation as
                 established by the Building Code or a higher base flood elevation as may be required by local
                 ordinance, whichever is higher; and
                Such permit complies with all applicable Building Code, Fire Prevention Code, and local
                 amendments to such codes.

        An application for a demolition permit for such single-family structure may only be reviewed
        administratively for compliance with the Building Code, Fire Prevention Code, local amendments to
        such codes, and any regulations applicable to a similarly situated parcel. Such applications may not be
        subject to any additional local land development regulations or public hearings.

        A local government may not penalize a private property owner for a demolition that is in compliance
        with the demolition permit.

        If a single-family residential structure is demolished pursuant to a demolition permit, a local government
        may not impose additional regulatory or building requirements on the new single-family residential
        structure constructed on the site of the demolished structure that would not otherwise be applicable to a
        similarly situated vacant parcel.

        The bill provides that this does not apply to a:

                Structure designated on the National Register of Historic Places;47
                Privately owned single-family residential structure designated historic by a local, state, or
                 federal governmental agency on or before January 1, 2022; or
                Privately owned single-family residential structure designated historic after January 1, 2022, by
                 a local, state, or federal governmental agency with the consent of its owner.

    B. SECTION DIRECTORY:

        Section 1.       Amends s. 553.79, F.S., relating to permits; applications; issuance; inspections.

        Section 2.       Amends s. 633.208, relating to minimum fire safety standards.

        Section 3.       Provides an effective date of July 1, 2022.



46 In order to support the National Flood Insurance   Program, FEMA identifies, publishes, and periodically updates flood
hazard data nationwide. This data is provided to communities in the form of a Flood Insurance Rate Map and Flood
Insurance Study report, typically prepared in a countywide format. FEMA, Adoption of Flood Insurance Rate Maps by
Participating Communities, FEMA 495 January 2019, https://www.fema.gov/sites/default/files/2020-07/fema_adoption-
flood-insurance-rate-maps-participating-communities_bulletin.pdf (last visited Jan. 17, 2022).
47 The National Register of Historic Places is the federal government’s official list of historic places in the United States.

The National Historic Preservation Act of 1966 authorized the register, which is administered by the National Park
Service. In order to be listed on the register the owner of the property must not object. National Park Service, What is the
National Register of Historic Places, https://www.nps.gov/subjects/nationalregister/ what-is-the-national-register. htm (last
visited Jan. 17, 2022); National Park Service, How to List a Property, https://www.nps.gov/subjects/nationalregister/how -
to-list-a-property.htm (last visited Jan. 17, 2022).
STORAGE NAME: pcs0635.RRS                                                                                               PAGE: 8
DATE: 1/18/2022
                        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 impact is unknown because it is unclear how often building plans are changed by building officials
       and local fire safety officials after the plans are approved by the local building department. It is also
       unclear about how often local governments prohibit or restrict single-family property owners from
       demolishing the single-family structures.

   D. FISCAL COMMENTS:
       None.


                                               III. COMMENTS

   A. CONSTITUTIONAL ISSUES:

       1. Applicability of Municipality/County Mandates Provision:
          Not applicable. This bill does not appear to require counties or municipalities to spend funds or take
          action requiring the expenditures of funds; reduce the authority that counties or municipalities have
          to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
          municipalities.

       2. Other:
          None.

   B. RULE-MAKING AUTHORITY:
       None.

   C. DRAFTING ISSUES OR OTHER COMMENTS:
       None.

                            IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES




STORAGE NAME: pcs0635.RRS                                                                                  PAGE: 9
DATE: 1/18/2022
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           PCS for HB 635                                                                                       2022




    1                                         A bill to be entitled
    2              An act relating to building permits; amending s.
    3              533.79, F.S.; requiring local building code
    4              administrators or inspectors to provide certain
    5              information to the local enforcing agency; prohibiting
    6              local enforcing agencies from making or requiring
    7              substantive changes to plans or specifications after a
    8              permit has been issued; providing exceptions;
    9              requiring local enforcing agencies that require
10                 substantive changes to plans or specifications after a
11                 permit has been issued to provide certain information
12                 to the permitholder; providing that a building code
13                 administrator, inspector, or plans reviewer is subject
14                 to disciplinary action under certain circumstances;
15                 prohibiting a local government from prohibiting or
16                 restricting demolition permits for single-family
17                 residential structures located in certain areas;
18                 providing that local governments may only review
19                 demolition permits administratively for compliance
20                 with certain regulations; prohibiting a property owner
21                 from being penalized for a demolition in compliance
22                 with the demolition permit; prohibiting local
23                 governments from imposing additional requirements on
24                 certain structures; providing applicability; amending
25                 s. 633.208, F.S.; requiring local fire officials to

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        PCS for HB 635                                                                                       2022




26              provide certain information to a permit applicant if
27              building plans do not comply with the Florida Fire
28              Prevention Code or Life Safety Code; prohibiting a
29              municipality, county, or special district from making
30              or requiring substantive changes to building plans
31              after a permit has been issued; providing exceptions;
32              requiring a local fire official to provide certain
33              information to the permitholder if a municipality,
34              county, or special district requires substantive
35              changes to building plans after a permit is issued;
36              providing that a local fire official who is a
37              certified firesafety inspector is subject to
38              disciplinary action under certain circumstances;
39              providing an effective date.
40
41      Be It Enacted by the Legislature of the State of Florida:
42
43              Section 1.         Subsection (2) of section 553.79, Florida
44      Statutes, is amended and subsection (25) is added to that
45      section, to read:
46              553.79       Permits; applications; issuance; inspections. —
47              (2)(a)1.          Except as provided in subsection (8), an
48      enforcing agency may not issue any permit for construction,
49      erection, alteration, modification, repair, or demolition of any
50      building or structure until the local building code

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        PCS for HB 635                                                                                       2022




51      administrator or inspector has reviewed the plans and
52      specifications required by the Florida Building Code, or local
53      amendment thereto, for such proposal and found the plans to be
54      in compliance with the Florida Building Code. If the local
55      building code administrator or inspector finds that the plans
56      are not in compliance with the Florida Building Code, the local
57      building code administrator or inspector shall identify the
58      specific plan features that do not comply with the applicable
59      codes, identify the specific code chapters and sections upon
60      which the finding is based, and provide this information to the
61      local enforcing agency. If the building code administrator or
62      inspector requests another person to review the plans and such
63      person identifies specific plan features that do not comply with
64      the applicable codes, the building code administrator or
65      inspector must provide this information to the local enforcing
66      agency. The local enforcing agency shall provide this
67      information to the permit applicant.
68              2.       In addition, An enforcing agency may not issue any
69      permit for construction, erection, alteration, modification,
70      repair, or demolition of any building until the appropriate
71      firesafety inspector certified pursuant to s. 633.216 has
72      reviewed the plans and specifications required by the Florida
73      Building Code, or local amendment thereto, for such proposal and
74      found that the plans comply with the Florida Fire Prevention
75      Code and the Life Safety Code. Any building or structure which

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         PCS for HB 635                                                                                       2022




 76      is not subject to a firesafety code shall not be required to
 77      have its plans reviewed by the firesafety inspector.
 78              3.       Any building or structure that is exempt from the local
 79      building permit process may not be required to have its plans
 80      reviewed by the local building code administrator. Industrial
 81      construction on sites where design, construction, and firesafety
 82      are supervised by appropriate design and inspection
 83      professionals and which contain adequate in-house fire
 84      departments and rescue squads is exempt, subject to local
 85      government option, from review of plans and inspections,
 86      providing owners certify that applicable codes and standards
 87      have been met and supply appropriate approved drawings to local
 88      building and firesafety inspectors.
 89              4.       The enforcing agency shall issue a permit to construct,
 90      erect, alter, modify, repair, or demolish any building or
 91      structure when the plans and specifications for such proposal
 92      comply with the Florida Building Code and the Florida Fire
 93      Prevention Code and the Life Safety Code as determined by the
 94      local authority in accordance with this chapter and chapter 633.
 95              (b)          After the local enforcing agency issues a permit, the
 96      local enforcing agency may not make or require any substantive
 97      changes to the plans or specifications except changes required
 98      for compliance with the Florida Building Code, the Florida Fire
 99      Prevention Code, or the Life Safety Code, or local amendments
100      thereto. If a local enforcing agency makes or requires

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         PCS for HB 635                                                                                       2022




101      substantive changes to the plans or specifications after a
102      permit is issued, the local enforcing agency must identify the
103      specific plan features that do not comply with the applicable
104      codes, identify the specific code chapters and sections upon
105      which the finding is based, and provide the information to the
106      permitholder.
107              (c)1.        A plans reviewer or inspector who fails to provide
108      the building code administrator with the reasons for making or
109      requiring substantive changes to the plans or specifications is
110      subject to disciplinary action against his or her certificate
111      under s. 468.621(1)(i).
112              2.       A building code administrator who fails to provide a
113      permit applicant or permitholder with the reasons for making or
114      requiring substantive changes to the plans or specifica tions is
115      subject to disciplinary action against his or her certificate
116      under s. 468.621(1)(i).
117              (25)(a)       A local law, ordinance, or regulation may not
118      prohibit or otherwise restrict the ability of a private property
119      owner to obtain a building permit to demolish his or her single-
120      family residential structure located in a coastal high-hazard
121      area, moderate flood zone, or special flood hazard area
122      according to a Flood Insurance Rate Map issued by the Federal
123      Emergency Management Agency for the purpose of participating in
124      the National Flood Insurance Program if the lowest finished
125      floor elevation of such structure is at or below base flood

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         PCS for HB 635                                                                                       2022




126      elevation as established by the Florida Building Code or a
127      higher base flood elevation as may be required by local
128      ordinance, whichever is higher, provided that such permit
129      otherwise complies with all applicable Florida Building Code,
130      Florida Fire Prevention Code, and Life Safety Code requirements,
131      or local amendments thereto.
132              (b)          An application for a demolition permit sought under
133      this subsection may only be reviewed administratively for
134      compliance with the Florida Building Code, the Florida Fire
135      Prevention Code, and the Life Safety Code, or local amendments
136      thereto, and any regulations applicable to a similarly situated
137      parcel. Applications may not be subject to any additional local
138      land development regulations or public hearings. A local
139      government may not penalize a private property owner for a
140      demolition that is in compliance with the demolition permit.
141              (c)          If a single-family residential structure is demolished
142      pursuant to a demolition permit, a local government may not
143      impose additional regulatory or building requirements on the new
144      single-family residential structure constructed on the site of
145      the demolished structure which would not otherwise be applicable
146      to a similarly situated vacant parcel.
147              (d)          This subsection does not apply to any of the
148      following:
149              1.       A structure designated on the National Register of
150      Historic Places.

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         PCS for HB 635                                                                                       2022




151              2.       A privately owned single-family residential structure
152      designated historic by a local, state, or federal governmental
153      agency on or before January 1, 2022.
154              3.       A privately owned single-family residential structure
155      designated historic after January 1, 2022, by a local, state, or
156      federal governmental agency with the consent of its owner.
157              Section 2.          Subsection (2) of section 633.208, Florida
158      Statutes, is amended to read:
159              633.208         Minimum firesafety standards.—
160              (2)(a)         Pursuant to subsection (1), each municipality,
161      county, and special district with firesafety responsibilities
162      shall enforce the Florida Fire Prevention Code as the minimum
163      firesafety code required by this section.
164              (b)          If a municipality, county, or special district
165      determines that the building plans for a building permit
166      application do not comply with the Florida Fire Prevention Code
167      or Life Safety Code, or local amendments thereto, the local fire
168      official must identify the specific plan features that do not
169      comply with the applicable codes, identify the specific code
170      chapters and sections upon which the determination is based, and
171      provide this information to the permit applicant.
172              (c)          After a municipality, county, or special district
173      issues a building permit, it may not make or require any
174      substantive changes to the building plans except those required
175      for compliance with the Florida Fire Prevention Code or Life

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         PCS for HB 635                                                                                       2022




176      Safety Code, or local amendments thereto. If a municipality,
177      county, or special district makes or requires substantive
178      changes to building plans after a permit is issued, the local
179      fire official must identify the specific plan features that do
180      not comply with the Florida Fire Prevention Code or Life Safety
181      Code, or local amendments thereto, identify the specific code
182      chapters and sections upon which the finding is based, and
183      provide this information to the permitholder.
184              (d)          A local fire official, who is also a certified
185      firesafety inspector, who fails to comply with paragraph (b) or
186      paragraph (c) is subject to disciplinary action against his or
187      her certificate under s. 633.216(6)(f).
188              Section 3.          This act shall take effect July 1, 2022.




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