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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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
Error! No text of specified style in document.
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 .
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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).
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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.
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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.
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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.
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This analysis is drafted to the committee substitute as passed by the Civil Justice and Property Rights
Subcommittee.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 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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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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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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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 .
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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.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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
DATE: 1/18/2022
“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.
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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).
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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.
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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.
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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.
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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.
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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.
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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.
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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
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 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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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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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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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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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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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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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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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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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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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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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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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 .
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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.
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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.
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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).
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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.
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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.
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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.
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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).
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DATE: 1/18/2022
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 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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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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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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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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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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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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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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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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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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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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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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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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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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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 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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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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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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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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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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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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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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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
112207 - h1033-strike.docx
Published On: 1/19/2022 7:21:47 PM
Page 1 of 17
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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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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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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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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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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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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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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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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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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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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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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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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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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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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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
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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.
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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.
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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.
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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).
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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).
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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).
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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.
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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).
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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.
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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.
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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
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 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
Page 1 of 4
CODING: Words stricken are deletions; words underlined are additions.
hb1095-00
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 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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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 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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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 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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hb1095-00
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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Page 1 of 5
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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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
DATE: 1/18/2022
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.
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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.
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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.
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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.
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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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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
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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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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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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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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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.
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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 .
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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.
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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
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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.
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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).
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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).
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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).
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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
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DATE: 1/18/2022
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
PCS for HB 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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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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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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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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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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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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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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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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