Post-Meeting Packet - Commerce and Tourism (January 24, 2022)
Summary
Post-meeting packet for the Commerce and Tourism committee meeting of Monday, January 24, 2022, chaired by Senator Hooper with Senator Wright as Vice Chair. The expanded agenda lists SB 634 (Judicial Notice) by Bradley as Fav/CS, SB 1038 (Florida Seaport Transportation and Economic Development Council) by Perry as Favorable, and SB 1618 (Restrictions on Employment) by Broxson as Fav/CS, each with Yeas 9 Nays 0. Tab 9 is SB 1878 by Gruters, Capital Investment Tax Credit. A timestamped log records Jared Willis of Alliance for Patient Access and William Large of Florida Justice Reform Institute speaking in support of a bill and Joshua Harris speaking against the bill; it ends with the meeting adjourned.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Cite this document
“Post-Meeting Packet - Commerce and Tourism (January 24, 2022).”
Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2022-01-24-post-meeting-packet-4888-cf3c7fe99b/
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Selection From: 01/24/2022 - Commerce and Tourism (3:00 PM - 5:00 PM) 2022 Regular Session
Customized 01/27/2022 8:56 AM
Agenda Order
Tab 1 SB 634 by Bradley; (Similar to H 00677) Judicial Notice
321424 A S RCS CM, Bradley Delete L.24 - 41: 01/25 11:05 AM
Tab 2 SB 1038 by Perry; (Similar to CS/H 00907) Florida Seaport Transportation and Economic Development Council
Tab 3 SB 1618 by Broxson; (Identical to H 01191) Restrictions on Employment
679300 A S RCS CM, Broxson Delete L.18: 01/25 11:07 AM
Tab 4 SB 1718 by Book (CO-INTRODUCERS) Taddeo; (Identical to H 01279) Cosmetic Animal Testing
539134 A S RCS CM, Book Delete L.45: 01/25 11:07 AM
Tab 5 SB 1762 by Brandes; (Identical to H 01537) Solicitation of Nonmedical Services
Tab 6 SB 1800 by Boyd; (Similar to H 01543) Broadband Infrastructure
240514 A S RCS CM, Boyd Delete L.263: 01/25 11:08 AM
Tab 7 SB 1802 by Boyd; (Identical to H 01545) Broadband Pole Replacement Trust Fund
621096 A S RCS CM, Boyd Delete L.49: 01/25 11:08 AM
Tab 8 SB 1564 by Hutson; (Compare to CS/H 01095) Telephone Solicitation
183960 D S RCS CM, Hutson Delete everything after 01/25 11:09 AM
Tab 9 SB 1878 by Gruters; Capital Investment Tax Credit
Page 1 of 1
2022 Regular Session The Florida Senate
COMMITTEE MEETING EXPANDED AGENDA
COMMERCE AND TOURISM
Senator Hooper, Chair
Senator Wright, Vice Chair
MEETING DATE: Monday, January 24, 2022
TIME: 3:00—5:00 p.m.
PLACE: Toni Jennings Committee Room, 110 Senate Building
MEMBERS: Senator Hooper, Chair; Senator Wright, Vice Chair; Senators Diaz, Garcia, Gruters, Hutson, Pizzo,
Powell, Taddeo, and Torres
BILL DESCRIPTION and
TAB BILL NO. and INTRODUCER SENATE COMMITTEE ACTIONS COMMITTEE ACTION
1 SB 634 Judicial Notice; Authorizing courts to take judicial Fav/CS
Bradley notice of certain information taken from web mapping Yeas 9 Nays 0
(Similar H 677) services, global satellite imaging sites, or Internet
mapping tools upon request of a party; requiring
parties who intend to offer such information into
evidence to file a notice of intent containing specified
information; authorizing parties to object to the
admissibility of such information; requiring courts to
overrule such objection unless certain findings are
made, etc.
JU 11/30/2021 Not Considered
JU 01/10/2022 Favorable
CM 01/24/2022 Fav/CS
RC
2 SB 1038 Florida Seaport Transportation and Economic Favorable
Perry Development Council; Revising the membership of Yeas 9 Nays 0
(Similar H 907) the Florida Seaport Transportation and Economic
Development Council to include a representative of
Putnam County; authorizing Putnam County to apply
for a grant for a port feasibility study through the
Florida Seaport Transportation and Economic
Development Council; requiring the Department of
Transportation to include the study in its budget
request under certain circumstances; terminating the
membership of Putnam County on the council under
certain circumstances, etc.
TR 01/12/2022 Favorable
CM 01/24/2022 Favorable
RC
3 SB 1618 Restrictions on Employment; Providing that restrictive Fav/CS
Broxson covenants are only enforceable against a former Yeas 9 Nays 0
(Identical H 1191) employee, agent, or independent contractor who
voluntarily resigned or was terminated because of
misconduct; defining the term “misconduct”, etc.
CM 01/24/2022 Fav/CS
JU
RC
S-036 (10/2008)
01242022.1724 Page 1 of 3
COMMITTEE MEETING EXPANDED AGENDA
Commerce and Tourism
Monday, January 24, 2022, 3:00—5:00 p.m.
BILL DESCRIPTION and
TAB BILL NO. and INTRODUCER SENATE COMMITTEE ACTIONS COMMITTEE ACTION
4 SB 1718 Cosmetic Animal Testing; Citing this act as the Fav/CS
Book "Humane Cosmetics Act"; prohibiting a manufacturer Yeas 9 Nays 0
(Identical H 1279) from manufacturing, importing for profit, selling, or
offering for sale a cosmetic developed or
manufactured using cosmetic animal testing
conducted or contracted by certain persons or from
conducting or contracting for cosmetic animal testing;
providing exceptions; providing labeling requirements
for specified cosmetics; providing enforcement and
civil penalties, etc.
CM 01/24/2022 Fav/CS
AP
RC
5 SB 1762 Solicitation of Nonmedical Services; Providing that a Temporarily Postponed
Brandes person who submits or sponsors a nonmedical
(Identical H 1537) solicitation that contains certain terminology or fails to
include specified disclosures commits a deceptive
and unfair trade practice, subject to the penalties and
remedies of the Florida Deceptive and Unfair Trade
Practices Act; prohibiting the unauthorized use, sale,
transfer, or disclosure of protected health information
for the purpose of soliciting professional services;
providing that a person who willfully and knowingly
violates such prohibition commits a deceptive and
unfair trade practice, subject to the penalties and
remedies of the Florida Deceptive and Unfair Trade
Practices Act, etc.
CM 01/24/2022 Temporarily Postponed
JU
RC
6 SB 1800 Broadband Infrastructure; Revising the duties of the Fav/CS
Boyd Florida Office of Broadband to include administering Yeas 9 Nays 0
(Similar H 1543, Compare H 1545, the Broadband Pole Replacement Program;
Linked S 1802) establishing the Broadband Pole Replacement
Program within the office; requiring the Secretary of
Economic Opportunity to apply for certain federal
funding for the program; requiring that the amount of
state funds allocated to the program be reduced by
the amount of certain federal funds provided to the
program; requiring an audit of the Broadband Pole
Replacement Trust Fund within a certain period of
time, etc.
CM 01/24/2022 Fav/CS
ATD
AP
S-036 (10/2008)
01242022.1724 Page 2 of 3
COMMITTEE MEETING EXPANDED AGENDA
Commerce and Tourism
Monday, January 24, 2022, 3:00—5:00 p.m.
BILL DESCRIPTION and
TAB BILL NO. and INTRODUCER SENATE COMMITTEE ACTIONS COMMITTEE ACTION
7 SB 1802 Broadband Pole Replacement Trust Fund; Creating Fav/CS
Boyd the trust fund within the Department of Economic Yeas 9 Nays 0
(Identical H 1545, Compare H Opportunity; providing the purpose of the trust fund;
1543, Linked S 1800) providing that moneys credited to the trust fund shall
consist of certain funds; requiring that funds in the
trust fund be used in a manner consistent with federal
law; providing that the balance in the trust fund at the
end of a fiscal year remains in the trust fund and is
available for carrying out the purposes of the trust
fund; providing for future legislative review and
termination or re-creation of the trust fund, etc.
CM 01/24/2022 Fav/CS
ATD
AP
8 SB 1564 Telephone Solicitation; Revising the definitions of the Fav/CS
Hutson terms “prior express written consent” and “unsolicited Yeas 10 Nays 0
(Compare CS/H 1095) telephonic sales call”; revising the limitations on
making unsolicited telephonic sales calls, etc.
CM 01/24/2022 Fav/CS
RI
RC
9 SB 1878 Capital Investment Tax Credit; Providing a credit Favorable
Gruters against the corporate income tax, the sales and use Yeas 8 Nays 1
tax, or a stated combination of the two taxes to a
qualifying business that establishes a qualifying
project for the creation of intellectual property which
meets a certain capital investment threshold;
specifying the calculation of the credit; authorizing
use of the credit or portions of the credit by the
business or members of its affiliated group of
corporations; authorizing use of the credit within a
certain timeframe, etc.
CM 01/24/2022 Favorable
FT
AP
Other Related Meeting Documents
S-036 (10/2008)
01242022.1724 Page 3 of 3
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: CS/SB 634
INTRODUCER: Commerce and Tourism Committee and Senator Bradley
SUBJECT: Judicial Notice
DATE: January 25, 2022 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Ravelo Cibula JU Favorable
2. McKay McKay CM Fav/CS
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 634 creates a process for a court to take “judicial notice” of certain information taken
from mapping services, such as Google Maps. Under Florida law, judicial notice may generally
be declared for certain facts “not subject to dispute because they are capable of accurate and
ready determination by resort to sources whose accuracy cannot be questioned” or “because they
are generally known within the territorial jurisdiction of the court.”1
The bill provides a process separate from the above standards for judicial notice of any image,
map, location, distance, calculation, or other information taken from any widely accepted web
mapping service, global satellite imaging site, or Internet mapping tool so long as the
information in question indicates the date that it was created. Under the process, a party must file
a notice of intent to offer the information, and the information will be admitted into evidence
unless another party objects. There is a rebuttable presumption that the information sought to be
judicially noticed should be judicially noticed, which may be overcome if the court finds by the
greater weight of the evidence that the information does not fairly and accurately portray what it
is being offered to prove, or that it otherwise should not be admitted into evidence under the
Florida Evidence Code. If the court overrules the objection, it must take judicial notice of the
information and admit it into evidence.
The bill provides an effective date of July 1, 2022.
1
Section 90.202(11) and (12), F.S.
BILL: CS/SB 634 Page 2
II. Present Situation:
The Florida Evidence Code
Florida statutes, such as the Florida Evidence Code (Code) as enacted by the Legislature, contain
both procedural and substantive law for the courts to apply. Depending on the type of
proceeding, the Code is generally applicable to all proceedings in Florida courts,2 including
actions based on federal claims.3 However, statutes that are procedural in nature, even those
passed by the Legislature, must be approved by Supreme Court. Occasionally, the Court rejects
the legislative changes.
In 2000, for example, the Court refused to adopt a recently enacted hearsay exception, noting
that applying the statute would go against long standing rules of evidence and violate a
defendant’s right of confrontation.4 A concurring opinion by Justice Lewis also found that the
statute was an unacceptable rule of procedure, and therefore infringed on the Court’s ability to
adopt rules under article v, section 2(a), of the Florida Constitution. In 2014, the Court refused to
adopt a statute that was not part of the evidence code requiring certain qualifications for expert
witnesses in medical negligence cases on the grounds that the statue was procedural.5
Judicial Notice
Judicial notice allows a court to make a finding that a certain piece of evidence is true without
any formal introduction for that basis.6 Generally, this may involve undisputed facts or facts that
are so well known they speak for themselves. Often, judicial notice may be used to save time and
resources, as presenting evidence for certain situations may prove too much of an unnecessary
burden.7 Courts warn though, that judicial notice “should be exercised with great caution” and
“must be of common and general knowledge [and] authoritatively settled and not doubtful.”8 A
famous example occurred in Ohio where a trial court took judicial notice that “Bud Lite is beer”
in a case involving the sale of beer to an underage person.9 The conviction was eventually
vacated by the Ohio Supreme Court, consistent with an appellate court finding that despite Bud
Lite meeting the “common, everyday understanding” of the term “beer,” this did not align with
the statutory language as enacted by Ohio Legislature, which included that the beverage contain
“between one-half of one percent and twelve percent alcohol by volume.”10 The conviction was
2
Section 90.103, F.S.
3
Byrd v. BT Foods, Inc., 26 So. 3d 600, 605 (Fla. 4th DCA 2009) (“[S]tate evidence codes control evidentiary questions
presented in state court. This is so even where federal claims are litigated, unless the state rules would affect substantive
federal rights.”).
4
In re Amendments to the Fla. Evidence Code, 782 So. 2d 339, 341 (Fla. 2000). The statute in question stripped the former
testimony of witnesses hearsay exception of the requirement that the witness be unavailable.
5
In re: Amendments to the Fla. Evidence Code, 144 So. 3d 536, 537 (Fla. 2014).
6
Legal Information Institute, Cornel Law School, https://www.law.cornell.edu/wex/judicial_notice (last visited January 21,
2022).
7
For example, soliciting testimony from members of the Governor, the Secretary of State, and members of the Legislature to
verify that an act of the Legislature was enacted into Florida law would put a large burden on those officials in addition to
any parties seeking evidence of any Legislative act.
8
State v, Coleman, 5 So. 2d 60, 62 (Fla. 1941).
9
State v. Kareski, 2012 WL 1717976, *2 (Ohio 9th Dist. Ct. App. 2012), vacated, 998 N.E.2d 410, (Ohio 2013).
10
Ohio Rev. Code Ann. § 4301.01(6)(b).
BILL: CS/SB 634 Page 3
thus vacated because the government failed to prove that the Bud Lite in question contained
required percentage of alcohol.
There are practical considerations when asking a court to take judicial notice of something. In the
above referenced case, for example, judicial notice likely allowed the prosecutor to avoid testing
a sample of Bud Lite to determine the alcoholic content. The Bud Lite in question did not contain
an official marker identifying the amount of alcohol.11 The Code differentiates between when a
court may or shall take judicial notice upon request of a party.
Under s. 90.201, F.S., a court shall take judicial notice of:
Decisional, constitutional, and public statutory law and resolutions of the Florida Legislature
and the Congress of the United States,
Florida rules of court that have statewide application, its own rules, and the rules of United
States courts adopted by the United States Supreme Court, and
Rules of court of the United States Supreme Court and of the United States Courts of
Appeal.12
Under s. 90.202, F.S., a court may take judicial notice of:
Special, local, and private acts and resolutions of the Congress of the United States and of the
Florida Legislature,
Decisional, constitutional, and public statutory law of every other state, territory, and
jurisdiction of the United States,
Contents of the Federal Register,
Laws of foreign nations and of an organization of nations,
Official actions of the legislative, executive, and judicial departments of the United States
and of any state, territory, or jurisdiction of the United States,
Records of any court of this state or of any court of record of the United States or of any
state, territory, or jurisdiction of the United States,
Rules of court of any court of this state or of any court of record of the United States or of
any other state, territory, or jurisdiction of the United States,
Provisions of all municipal and county charters and charter amendments of this state,
provided they are available in printed copies or as certified copies,
Rules promulgated by governmental agencies of this state which are published in the Florida
Administrative Code or in bound written copies,
Duly enacted ordinances and resolutions of municipalities and counties located in Florida,
provided such ordinances and resolutions are available in printed copies or as certified
copies,
Facts that are not subject to dispute because they are generally known within the territorial
jurisdiction of the court,
Facts that are not subject to dispute because they are capable of accurate and ready
determination by resort to sources whose accuracy cannot be questioned, and
11
Kareski, 998 N.E.2d at 411.
12
Section 90.201, F.S.
BILL: CS/SB 634 Page 4
Official seals of governmental agencies and departments of the United States and of any
state, territory, or jurisdiction of the United States.13
When presented with a request under s. 90.202, F.S., a court is required to take judicial notice
after the court:
Gives each adverse party timely written notice of the request, proof of which is filed with the
court, to enable the adverse party to prepare to meet the request, and
Is furnished with sufficient information to enable it to take judicial notice of the matter.14
III. Effect of Proposed Changes:
The bill creates a process to allow a court to take judicial notice of certain information from
widely accepted web mapping services, such as street information from Google Maps.
Specifically, the bill will allow a court to take judicial notice of any image, map, location,
distance, calculation, or other information taken from any widely accepted web mapping service,
global satellite imaging site, or internet mapping tool so long as the information in question
indicates the date that it was created.
In order for a court to take judicial notice of this type of information, the bill requires a party to
file notice within a reasonable time, or as required by a court order. This notice must include a
copy of the information and specify the Internet address or pathway where it may be inspected.
The bill provides a process for a party to object to a request for judicial notice of such
information. There is a rebuttable presumption that the information sought to be judicially
noticed should be judicially noticed, which may be overcome if the court finds by the greater
weight of the evidence that the information does not fairly and accurately portray what it is being
offered to prove, or that it otherwise should not be admitted into evidence under the Florida
Evidence Code.
The bill provides that this section “does not affect, expand, or limit standards for any matters that
may otherwise be judicially noticed.”
The bill provides an effective date of July 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
13
Section 90.202, F.S.
14
Section 90.203, F.S.
BILL: CS/SB 634 Page 5
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
The bill may enable parties in litigation to avoid costs that they would otherwise incur to
produce, verify, and authenticate information from web mapping service, a global
satellite imaging site, or an Internet mapping tool.
C. Government Sector Impact:
The bill may enable government parties to litigation avoid costs that they would
otherwise incur to produce, verify, and authenticate information from web mapping
service, a global satellite imaging site, or an Internet mapping tool. The bill may also
reduce costs to the judiciary by reducing the judicial time and resources that would
otherwise be required in litigation over the admissibility of such information.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill creates s. 90.2035, Florida Statutes.
BILL: CS/SB 634 Page 6
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Commerce and Tourism on January 24, 2022:
The CS limits the presumption that a court may take judicial notice of information from
web mapping services, global satellite imaging sites, or an Internet mapping tool to those
that are “widely accepted.” The CS also rewords provisions of the bill without making
substantive changes.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2022 COMMITTEE AMENDMENT
Bill No. SB 634
Ì321424xÎ321424
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
01/25/2022 .
.
.
.
The Committee on Commerce and Tourism (Bradley) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete lines 24 - 41
4 and insert:
5 other information taken from a widely accepted web mapping
6 service, global satellite imaging site, or Internet mapping
7 tool, if such image, map, location, distance, calculation, or
8 other information indicates the date on which the information
9 was created.
10 (b) A party intending to offer such information in evidence
Page 1 of 3
1/13/2022 1:20:16 PM 577-01920-22
Florida Senate - 2022 COMMITTEE AMENDMENT
Bill No. SB 634
Ì321424xÎ321424
11 at trial or at a hearing must file notice of such intent within
12 a reasonable time, or as defined by court order. The notice must
13 include a copy of the information and specify the Internet
14 address or pathway where such information may be accessed and
15 inspected.
16 (2)(a) A party may object to the court taking judicial
17 notice of the image, map, location, distance, calculation, or
18 other information taken from a widely accepted web mapping
19 service, global satellite imaging site, or Internet mapping tool
20 within a reasonable time or as defined by court order.
21 (b) There is a rebuttable presumption that information
22 sought to be judicially noticed under this section should be
23 judicially noticed. The rebuttable presumption may be overcome
24 if the court finds by the greater weight of the evidence that
25 the information does not fairly and accurately portray what it
26 is
27
28 ================= T I T L E A M E N D M E N T ================
29 And the title is amended as follows:
30 Delete lines 4 - 11
31 and insert:
32 notice of certain information taken from widely
33 accepted web mapping services, global satellite
34 imaging sites, or Internet mapping tools upon request
35 of a party; requiring parties who intend to offer such
36 information into evidence to file a notice of intent
37 containing specified information; authorizing parties
38 to object to the court taking judicial notice of such
39 information; creating a rebuttable presumption that
Page 2 of 3
1/13/2022 1:20:16 PM 577-01920-22
Florida Senate - 2022 COMMITTEE AMENDMENT
Bill No. SB 634
Ì321424xÎ321424
40 such information should be judicially noticed unless
41 certain
Page 3 of 3
1/13/2022 1:20:16 PM 577-01920-22
Florida Senate - 2022 SB 634 Florida Senate - 2022 SB 634
By Senator Bradley
5-00450-22 2022634__ 5-00450-22 2022634__
1 A bill to be entitled 30 at trial or hearing must file notice of such intent within a
2 An act relating to judicial notice; creating s. 31 reasonable time, or as defined by court order, which notice must
3 90.2035, F.S.; authorizing courts to take judicial 32 include a copy of the information and specify the Internet
4 notice of certain information taken from web mapping 33 address where such information may be inspected.
5 services, global satellite imaging sites, or Internet 34 (2)(a) A party may object to the admissibility of the
6 mapping tools upon request of a party; requiring 35 image, map, location, distance, calculation, or other
7 parties who intend to offer such information into 36 information taken from a web mapping service, a global satellite
8 evidence to file a notice of intent containing 37 imaging site, or an Internet mapping tool within a reasonable
9 specified information; authorizing parties to object 38 time or as defined by court order.
10 to the admissibility of such information; requiring 39 (b) The court shall overrule the objection unless the court
11 courts to overrule such objection unless certain 40 finds by a preponderance of evidence that the material sought to
12 findings are made; providing construction; providing 41 be admitted does not fairly and accurately portray what it is
13 an effective date. 42 being offered to prove or that it otherwise should not be
14 43 admitted into evidence under the Florida Evidence Code.
15 Be It Enacted by the Legislature of the State of Florida: 44 (c) If the court overrules the objection, the court must
16 45 take judicial notice of the information and admit the
17 Section 1. Section 90.2035, Florida Statutes, is created to 46 information into evidence.
18 read: 47 (3) This section does not affect, expand, or limit
19 90.2035 Judicial notice of information taken from web 48 standards for any matters that may otherwise be judicially
20 mapping services, global satellite imaging sites, or Internet 49 noticed.
21 mapping tools.— 50 Section 2. This act shall take effect July 1, 2022.
22 (1)(a) Upon request of a party, a court may take judicial
23 notice of an image, map, location, distance, calculation, or
24 other information taken from a web mapping service, a global
25 satellite imaging site, or an Internet mapping tool, if such
26 image, map, location, distance, calculation, or other
27 information indicates the date on which the information was
28 created.
29 (b) A party intending to offer such information in evidence
Page 1 of 2 Page 2 of 2
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
The Florida Senate
Committee Agenda Request
To: Senator Ed Hooper, Chair
Committee on Commerce and Tourism
Subject: Committee Agenda Request
Date: January 17, 2022
I respectfully request that Senate Bill #1038, relating to Florida Seaport Transportation and
Economic Development Council, be placed on the:
committee agenda at your earliest possible convenience.
next committee agenda.
Senator Keith Perry
Florida Senate, District 8
File signed original with committee office S-020 (03/2004)
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Transportation
BILL: SB 1038
INTRODUCER: Senator Perry
SUBJECT: Florida Seaport Transportation and Economic Development Council
DATE: January 21, 2022 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Price Vickers TR Favorable
2. Renner McKay CM Favorable
3. RC
I. Summary:
SB 1038 revises the membership of the Florida Seaport Transportation and Economic
Development (FSTED) Council to include as a member the port director (or the director’s
designee) of the Port of Putnam County. The bill increases the total number of members on the
FSTED Council from 17 to 18.
Until July 1, 2024, the bill authorizes Putnam County to apply for a grant through the FSTED
Council to fund a feasibility study regarding the establishment of a port in Putnam County. The
bill directs the Council to evaluate the grant application in accordance with existing statutory
provisions governing evaluation and selection of projects for funding under the FSTED Program
within the Florida Department of Transportation (FDOT).
If the grant application is approved, the bill requires the FDOT to include the feasibility study as
a specific project in its annual legislative budget request for funding of the FSTED Program. If
the study concludes that a port in Putnam County is not feasible, the bill terminates the
membership of Putnam County on the FSTED Council.
The bill also reenacts a number of statutory provisions to incorporate amendments made by the
bill to the FSTED Council statute.
The fiscal impact of the bill is unknown, as whether any grant award under the FSTED Program
for the bill’s specified purpose will occur, and in what amount, is unknown. See the “Fiscal
Impact Statement” below for additional details.
The bill takes effect July 1, 2022.
BILL: SB 1038 Page 2
II. Present Situation:
The Florida Seaport Transportation and Economic Development (FSTED) Program
The FSTED Program was created within the FDOT to finance port transportation or port
facilities projects that will improve the movement and intermodal transportation of cargo or
passengers in commerce and trade and support the interests, purposes, and requirements of all 15
public seaports.1 Section 311.07(2), F.S., currently requires a minimum of $25 million annually
to be made available from the State Transportation Trust Fund to fund the FSTED Program.
Section 311.09(9), F.S., also directs the FDOT to include no less than $25 million annually in its
legislative budget request for the FSTED Program. An additional $35 million in seaport-related
funding is provided for specified projects under the Strategic Port Investment Initiative under s.
311.10, F.S., and seaport-related projects may be funded under the Intermodal Logistics Center
Infrastructure Support Program under s. 311.101, F.S., and the Intermodal Development Program
under s. 341.053, F.S. Additional annual funding for debt service in the amount of $10 million is
also provided under s. 320.20, F.S., for seaport-related bonds.
The FSTED Program is managed by the 17-member FSTED Council. The members currently
include the port director of the state’s 15 public seaports or the director’s designee, the Secretary
of the FDOT or his or her designee, and the Executive Director of the Department of Economic
Opportunity (DEO) or his or her designee.2 The Council reviews applications for the award of
grants for projects eligible for funding under the FSTED Program. The Council evaluates eligible
projects3 and submits an annual list of approved projects, along with a recommended funding
level for each project, to the FDOT and the DEO.4
The FDOT reviews the list annually approved by the Council for consistency with the Florida
Transportation Plan, the Statewide Seaport and Waterways System Plan, and its adopted work
program and must notify the council of projects found to be inconsistent.5 The DEO reviews the
annual list to evaluate the economic benefit of the project, and to determine whether a project is
consistent with the Florida Seaport Mission Plan, with state economic developments goals and
policies, and with state, regional, and local plans, as appropriate.6 Generally, projects found to be
inconsistent may not be included in the list of projects to be funded.
The FDOT must include in its annual legislative budget request for the FSTED Program funded
under s. 311.09, F.S., funding for projects determined to be consistent and approved by the
Council, and the specific projects to be funded during the ensuing fiscal year must be included in
the FDOT’s tentative work program.7
1
Section 311.07(1), F.S. The 15 seaports, listed in s. 311.09(1), F.S., are Jacksonville (JaxPort), Port Canaveral, Port Citrus,
Port of Fort Pierce, Port of Palm Beach, Port Everglades, Port of Miami, Port Manatee, Port of St. Petersburg, Port of Tampa,
Port St. Joe, Port Panama City, Port of Pensacola, Port of Key West, and Port of Fernandina.
2
Section 311.09(1), F.S.
3
Eligible project types are listed in s. 311.07(3)(b), F.S., and funding is limited to the specified port facility or port
transportation projects on a 50-50 matching basis per s. 311.07(3)(a), F.S., except for projects involving rehabilitation of
wharves, docks, berths, bulkheads, or similar structures, which require a 25-percent match.
4
Section 311.09(5), F.S.
5
Section 311.09(6), F.S.
6
Section 311.09(7), F.S.
7
See s. 311.09(9), F.S. The FDOT’s adopted work program is the 5-year work program adopted by the FDOT pursuant to s.
339.135, F.S. In developing the adopted work program, each of the FDOT districts submits an annual district work program,
BILL: SB 1038 Page 3
The Putnam County Port District and Barge Port Project
The Florida Legislature created the Putnam County Port District in 1961.8 The Putnam County
Commission, acting as the Port Authority, owns an existing barge port and industrial
development area located in Putnam County on the St. Johns River. According to the Putnam
County Port District website, barge port services currently include:
Bulkheaded dock space;
Enclosed, lockable warehouse space with utilities;
Separate keyed office space;
Paved parking; and
Gated entry.9
Additional assets are described as available land at the port and new land acquisitions, an on-
dock heavy lift stick crane, CSX rail service at the port, and proximity to major customers. 10
The Port Authority is currently pursuing expansion of the barge port, in cooperation with the
Army Corps of Engineers (the Corps),11 under the federal Continuing Authorities Program
(CAP), under which the Corps is authorized to plan, design, and implement certain types of
water resources projects without additional project specific congressional authorization. The
purpose of the CAP is to plan and implement projects of limited size, cost, scope and
complexity.12 The Port Authority’s consultant describes the “CAP Section 107” process as an
“expedited” process.13
The project involves dredging of a 5,000-foot branch channel from the existing barge berth to the
St. Johns channel, with the addition of a turning basin to enhance vessel navigation and safety. 14
The new branch channel depth would be 12 feet at low water, as the existing channel has been
which is the 5-year listing of transportation projects planned for each fiscal year, to the FDOT’s central office for review and
development of the tentative work program. The tentative work program is the 5-year listing of all transportation projects
planned for each fiscal year which is developed by the FDOT’s central office based on the district work programs. Each year,
a new fifth year is added for purposes of developing the tentative and adopted work programs.
8
Chapter 67-1961, L.O.F.
9
Putnam County, Florida, Port Authority General Information, including a map of the port district boundaries, available at
https://main.putnam-fl.com/?s=Port+District+General+Information (last visited January 21, 2022). Additional assets are
described as available land at the port and new land acquisitions, an on-dock heavy lift stick crane, CSX Rail service at the
port, and proximity to major customers.
10
See video of a presentation to the Putnam County Commission meeting as the Port Authority on December 14, 2021, at
20:29, available at https://www.youtube.com/c/PutnamBOCC/live?app=desktop (last visited January 21, 2022).
11
Id. At 9:44.
12
See U.S. Army Corps of Engineers, Continuing Authorities Program, for additional program information available at
https://www.nae.usace.army.mil/Missions/Public-Services/Continuing-Authorities-Program/ (last visited January 21, 2022).
13
See U.S. Army Corps of Engineers, Small Navigation Project Study (Section 107), available at
https://www.nae.usace.army.mil/Missions/Public-Services/Continuing-Authorities-Program/Section-107/ (last visited
January 21, 2022). “Section 107 of the River and Harbor Act of 1960 provides authority for the Corps of Engineers to
improve navigation including dredging of channels, anchorage areas, and turning basins and construction of breakwaters,
jetties and groins, through a partnership with non-Federal government sponsor such as cities, counties, special chartered
authorities (such as port authorities), or units of state government. The maximum Federal cost for project development and
construction of any one project is $10 million and each project must be economically justified, environmentally sound, and
technically feasible.”
14
Supra note 10 at 10:25.
BILL: SB 1038 Page 4
filled with silt due to storm events over the last 10 to 15 years. The current depth is about 7 feet,
which precludes use by anything other than “very shallow-draft barges” and recreational vessels
and “doesn’t do much for business.” An estimate of the material that needs to be removed is
under 2,000 cubic yards, with a nearby, viable disposal site. At a new depth of 12 feet, the
number, size, and capacity of vessels using the barge port would increase dramatically, as would
revenues associated with that activity.
In terms of project development,15 three critical steps have been completed:
A Federal Interest Determination, completed in July of 2021, which is prepared by the Corps
and indicates a federal interest in continuing to evaluate the project.
Development of a Fact Sheet, containing detailed project information, also prepared by the
Corps. This document, completed in September of 2021, indicates that if a required
feasibility report is positive and the project is actually constructed, the Corps will assume
responsibility for the operations and maintenance of dredging.
Completion of a Feasibility Cost Sharing Agreement in October of 2021, which establishes
the responsibilities of the Port Authority and the Corps for funding the feasibility report.
The purpose of the feasibility report is to demonstrate the project’s support of national economic
development (NED), which, in the absence of sufficient historical detail in Palatka, Florida, will
be based on a market analysis involving identification of probable marine cargo activity at the
facility if the project is completed.16 If NED is demonstrated, the project will be approved. It is
estimated that the feasibility report will require about 18 months to complete, at an estimated
cost of $800,000, with the County’s share being $350,000 of that amount, which can be spread
over the duration of the report’s production.
Assuming the outcome of the report is favorable,17 the Corps would develop a project
partnership agreement between Putnam County and the Corps covering the estimated cost of
construction of the project and the responsibility of the County for 20 percent of the cost, which
may be reduced by contributions in kind, such as lands, easements, and disposal areas. The entire
process, including advertisement for bids, selection and award of a contract, and issuance of a
Notice to Proceed, would be handled by the Corps and is expected to take about 18 months.
The dredging project,18 will allow barges and smaller vessels to access the port, but raising the
Shands Bridge would make possible use of the port by larger vessels, such as hopper and flat
deck barges, small vessels, and even cruise ships.
The FDOT plans to begin construction of a new Shands Bridge over the St. Johns River just
south of the existing bridge in the fall of 2022 as part of the First Coast Expressway Project,
increasing the vertical clearance height of the new bridge from the current 45 feet of clearance to
65 feet from the water line. According to the FDOT, this increase “is an improvement for marine
commerce in the region.19
15
Id. at 11:39.
16
Id. at 13:24.
17
Id. at 15:13.
18
Id. at 21:55.
19
FDOT, First Coast Expressway – New St. Johns River Bridge, available at https://nflroads.com/ProjectDetails?p=5136 (last
visited January 21, 2022.)
BILL: SB 1038 Page 5
III. Effect of Proposed Changes:
The bill increases the total number of members on the FSTED Council from 17 to 18, by adding
as a member the port director (or the director’s designee) of the Port of Putnam County.
The bill authorizes Putnam County, until July 1, 2024, to apply for a grant through the FSTED
Council to fund a feasibility study regarding the establishment of a port in Putnam County. The
bill directs the Council to evaluate the grant application in accordance with the existing statutory
provisions governing evaluation and selection of projects for funding under the FSTED Program.
If the grant application is approved, the bill requires the FDOT, as is the case under current law
for other FSTED applicants who are awarded project grants, to include the feasibility study as a
specific project in its annual legislative budget request for funding of the FSTED Program. If the
study concludes that a port in Putnam County is not feasible, the bill terminates the membership
of Putnam County on the FSTED Council.
The bill reenacts a number of statutory provisions to incorporate the amendment to s. 311.09,
F.S.
The bill takes effect July 1, 2022.
IV. Constitutional Issues
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
BILL: SB 1038 Page 6
B. Private Sector Impact:
A private sector consultant may be hired to conduct the described feasibility study should
the FSTED Council grant an award to fund the study.
C. Government Sector Impact:
The bill does not revise funding levels under the FSTED Program. However, if the grant
application for the feasibility study is approved, funding currently available for other
grants under the FSTED Program would be reduced by the unknown amount of any
award of funds granted by the FSTED Council for the feasibility study. Going forward, if
the study concludes in a finding that a Putnam County Port is feasible, the county’s
membership on the Council continues, and competition for available funding under the
FSTED Program would increase by one. If the study concludes the port is not feasible,
membership on the Council terminates, and the bill presents no further fiscal impact.
VI. Technical Deficiencies:
None.
VII. Related Issues:
The bill provides that if the feasibility study regarding the establishment of a port in Putnam
County determines that the port is not feasible, the membership of Putnam County on the council
must terminate. The Legislature may wish to clarify when exactly the membership of the council
would be changed, and consider requiring the council to report back to the Legislature on the
actual current membership of the council after the Putnam County feasibility study has been
acted upon.
VIII. Statutes Affected:
This bill substantially amends the following section of the Florida Statutes: 311.09.
The bill reenacts the following sections of the Florida Statutes: 163.3178, 189.068, 311.07,
311.091, 311.10, 311.101, 311.12, 311.121, 311.14, 315.18, 320.20, 334.27, 337.14, 373.406,
373.4133, 373.4136, and 403.061.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2022 SB 1038 Florida Senate - 2022 SB 1038
By Senator Perry
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1 A bill to be entitled 30 seaport planning, the confidentiality of certain
2 An act relating to the Florida Seaport Transportation 31 records held by deepwater ports, the disposition of
3 and Economic Development Council; amending s. 311.09, 32 license tax moneys, the definition of the term
4 F.S.; revising the membership of the Florida Seaport 33 “governmental transportation entity,” seaport
5 Transportation and Economic Development Council to 34 contractor services, exemptions for overwater piers,
6 include a representative of Putnam County; authorizing 35 docks, or similar structures in deepwater ports, port
7 Putnam County to apply for a grant for a port 36 conceptual permits, the authorized use of mitigation
8 feasibility study through the Florida Seaport 37 banks, and the duties of the Department of
9 Transportation and Economic Development Council; 38 Environmental Protection in providing environmental
10 providing for the evaluation of the application; 39 resource permits, respectively, to incorporate the
11 requiring the Department of Transportation to include 40 amendment made to s. 311.09, F.S., in references
12 the study in its budget request under certain 41 thereto; providing an effective date.
13 circumstances; terminating the membership of Putnam 42
14 County on the council under certain circumstances; 43 Be It Enacted by the Legislature of the State of Florida:
15 reenacting ss. 163.3178(2)(k), (5), and (6), 44
16 189.068(6), 311.07(1) and (3)(a) and (b), 311.091, 45 Section 1. Subsection (1) of section 311.09, Florida
17 311.10(1) and (2), 311.101(2), 311.12(2)(a), (3), and 46 Statutes, is amended, and subsection (13) is added to that
18 (6)(a), 311.121(2) and (3)(a), 311.14(1), 315.18, 47 section, to read:
19 320.20(3) and (4), 334.27(1), 337.14(7), 373.406(12), 48 311.09 Florida Seaport Transportation and Economic
20 373.4133(2) and (10), 373.4136(6)(d), and 403.061(38) 49 Development Council.—
21 and (39), F.S., relating to coastal management, the 50 (1) The Florida Seaport Transportation and Economic
22 oversight of deepwater ports, Florida seaport 51 Development Council is created within the Department of
23 transportation and economic development funding, entry 52 Transportation. The council consists of the following 18 17
24 into public-private infrastructure project agreements 53 members: the port director, or the port director’s designee, of
25 for port-related public infrastructure projects, the 54 each of the ports of Jacksonville, Port Canaveral, Port Citrus,
26 Strategic Port Investment Initiative within the 55 Fort Pierce, Palm Beach, Port Everglades, Miami, Port Manatee,
27 department, the Intermodal Logistics Center 56 St. Petersburg, Putnam County, Tampa, Port St. Joe, Panama City,
28 Infrastructure Support Program, seaport security, 57 Pensacola, Key West, and Fernandina; the secretary of the
29 licensed security officers at Florida seaports, 58 Department of Transportation or his or her designee; and the
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59 secretary of the Department of Economic Opportunity or his or 88 due date of the local plan and shall be integrated with, and
60 her designee. 89 shall meet all criteria specified in, the coastal management
61 (13) Until July 1, 2024, Putnam County may apply for a 90 element. “The appropriate local government” means the
62 grant through the Florida Seaport Transportation and Economic 91 municipality having the responsibility for the area in which the
63 Development Council to perform a feasibility study regarding the 92 deepwater port lies, except that where no municipality has
64 establishment of a port in Putnam County. The council shall 93 responsibility, where a municipality and a county each have
65 evaluate the grant application pursuant to subsections (5)–(9) 94 responsibility, or where two or more municipalities each have
66 and, if approved, the Department of Transportation must include 95 responsibility for the area in which the deepwater port lies,
67 the feasibility study in its budget request pursuant to 96 “the appropriate local government” means the county which has
68 subsection (9). If the study determines that a port in Putnam 97 responsibility for the area in which the deepwater port lies.
69 County is not feasible, the membership of Putnam County on the 98 Failure by a deepwater port which is not part of a local
70 council must terminate. 99 government to submit its component to the appropriate local
71 Section 2. For the purpose of incorporating the amendment 100 government shall not result in a local government being subject
72 made by this act to section 311.09, Florida Statutes, in 101 to sanctions pursuant to s. 163.3184. However, a deepwater port
73 references thereto, paragraph (k) of subsection (2) and 102 which is not part of a local government shall be subject to
74 subsections (5) and (6) of section 163.3178, Florida Statutes, 103 sanctions pursuant to s. 163.3184.
75 are reenacted to read: 104 (5) The appropriate dispute resolution process provided
76 163.3178 Coastal management.— 105 under s. 186.509 must be used to reconcile inconsistencies
77 (2) Each coastal management element required by s. 106 between port master plans and local comprehensive plans. In
78 163.3177(6)(g) shall be based on studies, surveys, and data; be 107 recognition of the state’s commitment to deepwater ports, the
79 consistent with coastal resource plans prepared and adopted 108 state comprehensive plan must include goals, objectives, and
80 pursuant to general or special law; and contain: 109 policies that establish a statewide strategy for enhancement of
81 (k) A component which includes the comprehensive master 110 existing deepwater ports, ensuring that priority is given to
82 plan prepared by each deepwater port listed in s. 311.09(1), 111 water-dependent land uses. As an incentive for promoting plan
83 which addresses existing port facilities and any proposed 112 consistency, port facilities as defined in s. 315.02(6) on lands
84 expansions, and which adequately addresses the applicable 113 owned or controlled by a deepwater port as defined in s.
85 requirements of paragraphs (a)-(k) for areas within the port and 114 311.09(1), as of the effective date of this act shall not be
86 proposed expansion areas. Such component shall be submitted to 115 subject to development-of-regional-impact review provided the
87 the appropriate local government at least 6 months prior to the 116 port either successfully completes an alternative comprehensive
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117 development agreement with a local government pursuant to ss. 146 provisions of this subsection shall be achieved through
118 163.3220-163.3243 or successfully enters into a development 147 comprehensive master plans prepared by each port and integrated
119 agreement with the state land planning agency and applicable 148 with the appropriate local plan pursuant to paragraph (2)(k).
120 local government pursuant to s. 380.032 or, where the port is a 149 Section 3. For the purpose of incorporating the amendment
121 department of a local government, successfully enters into a 150 made by this act to section 311.09, Florida Statutes, in a
122 development agreement with the state land planning agency 151 reference thereto, subsection (6) of section 189.068, Florida
123 pursuant to s. 380.032. Port facilities as defined in s. 152 Statutes, is reenacted to read:
124 315.02(6) on lands not owned or controlled by a deepwater port 153 189.068 Special districts; authority for oversight; general
125 as defined in s. 311.09(1) as of the effective date of this act 154 oversight review process.—
126 shall not be subject to development-of-regional-impact review 155 (6) This section does not apply to a deepwater port listed
127 provided the port successfully enters into a development 156 in s. 311.09(1) which is in compliance with a port master plan
128 agreement with the state land planning agency and applicable 157 adopted pursuant to s. 163.3178(2)(k), or to an airport
129 local government pursuant to s. 380.032 or, where the port is a 158 authority operating in compliance with an airport master plan
130 department of a local government, successfully enters into a 159 approved by the Federal Aviation Administration, or to any
131 development agreement with the state land planning agency 160 special district organized to operate health systems and
132 pursuant to s. 380.032. 161 facilities licensed under chapter 395, chapter 400, or chapter
133 (6) Each port listed in s. 311.09(1) and each local 162 429.
134 government in the coastal area which has spoil disposal 163 Section 4. For the purpose of incorporating the amendment
135 responsibilities shall provide for or identify disposal sites 164 made by this act to section 311.09, Florida Statutes, in
136 for dredged materials in the future land use and port elements 165 references thereto, subsection (1) and paragraphs (a) and (b) of
137 of the local comprehensive plan as needed to assure proper long- 166 subsection (3) of section 311.07, Florida Statutes, are
138 term management of material dredged from navigation channels, 167 reenacted to read:
139 sufficient long-range disposal capacity, environmental 168 311.07 Florida seaport transportation and economic
140 sensitivity and compatibility, and reasonable cost and 169 development funding.—
141 transportation. The disposal site selection criteria shall be 170 (1) There is created the Florida Seaport Transportation and
142 developed in consultation with navigation and inlet districts 171 Economic Development Program within the Department of
143 and other appropriate state and federal agencies and the public. 172 Transportation to finance port transportation or port facilities
144 For areas owned or controlled by ports listed in s. 311.09(1) 173 projects that will improve the movement and intermodal
145 and proposed port expansion areas, compliance with the 174 transportation of cargo or passengers in commerce and trade and
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175 support the interests, purposes, and requirements of all ports 204 cranes, or other mechanized equipment used in the movement of
176 listed in s. 311.09. 205 cargo or passengers in international commerce.
177 (3)(a) Florida Seaport Transportation and Economic 206 5. The acquisition of land to be used for port purposes.
178 Development Program funds shall be used to fund approved 207 6. The acquisition, improvement, enlargement, or extension
179 projects on a 50-50 matching basis with any of the deepwater 208 of existing port facilities.
180 ports, as listed in s. 311.09, which is governed by a public 209 7. Environmental protection projects which are necessary
181 body or any other deepwater port which is governed by a public 210 because of requirements imposed by a state agency as a condition
182 body and which complies with the water quality provisions of s. 211 of a permit or other form of state approval; which are necessary
183 403.061, the comprehensive master plan requirements of s. 212 for environmental mitigation required as a condition of a state,
184 163.3178(2)(k), and the local financial management and reporting 213 federal, or local environmental permit; which are necessary for
185 provisions of part III of chapter 218. However, program funds 214 the acquisition of spoil disposal sites and improvements to
186 used to fund projects that involve the rehabilitation of 215 existing and future spoil sites; or which result from the
187 wharves, docks, berths, bulkheads, or similar structures shall 216 funding of eligible projects listed in this paragraph.
188 require a 25-percent match of funds. Program funds also may be 217 8. Transportation facilities as defined in s. 334.03(30)
189 used by the Seaport Transportation and Economic Development 218 which are not otherwise part of the Department of
190 Council for data and analysis that will assist Florida’s 219 Transportation’s adopted work program.
191 seaports and international trade. 220 9. Intermodal access projects.
192 (b) Projects eligible for funding by grants under the 221 10. Construction or rehabilitation of port facilities as
193 program are limited to the following port facilities or port 222 defined in s. 315.02, excluding any park or recreational
194 transportation projects: 223 facilities, in ports listed in s. 311.09(1) with operating
195 1. Transportation facilities within the jurisdiction of the 224 revenues of $5 million or less, provided that such projects
196 port. 225 create economic development opportunities, capital improvements,
197 2. The dredging or deepening of channels, turning basins, 226 and positive financial returns to such ports.
198 or harbors. 227 11. Seaport master plan or strategic plan development or
199 3. The construction or rehabilitation of wharves, docks, 228 updates, including the purchase of data to support such plans.
200 structures, jetties, piers, storage facilities, cruise 229 Section 5. For the purpose of incorporating the amendment
201 terminals, automated people mover systems, or any facilities 230 made by this act to section 311.09, Florida Statutes, in a
202 necessary or useful in connection with any of the foregoing. 231 reference thereto, section 311.091, Florida Statutes, is
203 4. The acquisition of vessel tracking systems, container 232 reenacted to read:
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233 311.091 Entry into public-private infrastructure project 262 transportation system; and
234 agreements for port-related public infrastructure projects.—A 263 (d) Demonstrating the feasibility and availability of
235 seaport listed in s. 311.09(1) may receive or solicit proposals 264 matching funds through local or private partners.
236 from and enter into a public-private infrastructure project 265 (2) Prior to making final project allocations, the
237 agreement with a private entity, or a consortium of private 266 Department of Transportation shall schedule a publicly noticed
238 entities, to build, operate, manage, maintain, or finance a 267 workshop with the Department of Economic Opportunity and the
239 port-related public infrastructure project. 268 deepwater ports listed in s. 311.09 to review the proposed
240 Section 6. For the purpose of incorporating the amendment 269 projects. After considering the comments received, the
241 made by this act to section 311.09, Florida Statutes, in 270 Department of Transportation shall finalize a prioritized list
242 references thereto, subsections (1) and (2) of section 311.10, 271 of potential projects.
243 Florida Statutes, are reenacted to read: 272 Section 7. For the purpose of incorporating the amendment
244 311.10 Strategic Port Investment Initiative.— 273 made by this act to section 311.09, Florida Statutes, in a
245 (1) There is created the Strategic Port Investment 274 reference thereto, subsection (2) of section 311.101, Florida
246 Initiative within the Department of Transportation. Beginning in 275 Statutes, is reenacted to read:
247 fiscal year 2012-2013, a minimum of $35 million annually shall 276 311.101 Intermodal Logistics Center Infrastructure Support
248 be made available from the State Transportation Trust Fund to 277 Program.—
249 fund the Strategic Port Investment Initiative. The Department of 278 (2) For the purposes of this section, the term “intermodal
250 Transportation shall work with the deepwater ports listed in s. 279 logistics center,” including, but not limited to, an “inland
251 311.09 to develop and maintain a priority list of strategic 280 port,” means a facility or group of facilities serving as a
252 investment projects. Project selection shall be based on 281 point of intermodal transfer of freight in a specific area
253 projects that meet the state’s economic development goal of 282 physically separated from a seaport where activities relating to
254 becoming a hub for trade, logistics, and export-oriented 283 transport, logistics, goods distribution, consolidation, or
255 activities by: 284 value-added activities are carried out and whose activities and
256 (a) Providing important access and major on-port capacity 285 services are designed to support or be supported by conveyance
257 improvements; 286 or shipping through one or more seaports listed in s. 311.09.
258 (b) Providing capital improvements to strategically 287 Section 8. For the purpose of incorporating the amendment
259 position the state to maximize opportunities in international 288 made by this act to section 311.09, Florida Statutes, in
260 trade, logistics, or the cruise industry; 289 references thereto, paragraph (a) of subsection (2), subsection
261 (c) Achieving state goals of an integrated intermodal 290 (3), and paragraph (a) of subsection (6) of section 311.12,
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291 Florida Statutes, are reenacted to read: 320 in a restricted area who has in his or her possession a
292 311.12 Seaport security.— 321 concealed weapon, or who operates or has possession or control
293 (2) SECURITY PLAN.— 322 of a vehicle in or upon which a concealed weapon is placed or
294 (a) Each seaport listed in s. 311.09 shall adopt and 323 stored, commits a misdemeanor of the first degree, punishable as
295 maintain a security plan specific to that seaport which provides 324 provided in s. 775.082 or s. 775.083. This paragraph does not
296 for a secure seaport infrastructure that promotes the safety and 325 apply to active-duty certified federal or state law enforcement
297 security of state residents and visitors and the flow of 326 personnel or persons so designated by the seaport director in
298 legitimate trade and travel. 327 writing.
299 (3) SECURE AND RESTRICTED AREAS.—Each seaport listed in s. 328 (c) During a period of high terrorist threat level, as
300 311.09 must clearly designate in seaport security plans, and 329 designated by the United States Department of Homeland Security,
301 clearly identify with appropriate signs and markers on the 330 the management or controlling authority of the port may
302 premises of a seaport, all secure and restricted areas as 331 temporarily designate any part of the seaport property as a
303 defined by 33 C.F.R. part 105. 332 secure or restricted area. The duration of such designation is
304 (a)1. All seaport employees and other persons working at 333 limited to the period in which the high terrorist threat level
305 the seaport who have regular access to secure or restricted 334 is in effect or a port emergency exists.
306 areas must comply with federal access control regulations as 335 (6) GRANT PROGRAM.—
307 prescribed in this section. 336 (a) The Florida Seaport Transportation and Economic
308 2. All persons and objects in secure and restricted areas 337 Development Council shall establish a Seaport Security Grant
309 are subject to search by a sworn state-certified law enforcement 338 Program for the purpose of assisting in the implementation of
310 officer, a Class D seaport security officer certified under 339 security plans and security measures at the seaports listed in
311 Maritime Transportation Security Act of 2002 guidelines, or an 340 s. 311.09(1). Funds may be used for the purchase of equipment,
312 employee of the seaport security force certified under the 341 infrastructure needs, cybersecurity programs, and other security
313 Maritime Transportation Security Act of 2002 guidelines. 342 measures identified in a seaport’s approved federal security
314 3. Persons found in these areas without the proper 343 plan. Such grants may not exceed 75 percent of the total cost of
315 permission are subject to the trespass provisions of ss. 810.08 344 the request and are subject to legislative appropriation.
316 and 810.09. 345 Section 9. For the purpose of incorporating the amendment
317 (b) The seaport must provide clear notice of the 346 made by this act to section 311.09, Florida Statutes, in
318 prohibition against possession of concealed weapons and other 347 references thereto, subsection (2) and paragraph (a) of
319 contraband material on the premises of the seaport. Any person 348 subsection (3) of section 311.121, Florida Statutes, are
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349 reenacted to read: 378 under s. 311.09.
350 311.121 Qualifications, training, and certification of 379 6. One director of a state law enforcement academy.
351 licensed security officers at Florida seaports.— 380 7. One representative of a local law enforcement agency.
352 (2) The authority or governing board of each seaport 381 8. Two representatives of contract security services.
353 identified under s. 311.09 that is subject to the seaport 382 9. One representative of the Department of Highway Safety
354 security standards referenced in s. 311.12 shall require that a 383 and Motor Vehicles.
355 candidate for certification as a seaport security officer: 384 Section 10. For the purpose of incorporating the amendment
356 (a) Has received a Class D license as a security officer 385 made by this act to section 311.09, Florida Statutes, in a
357 under chapter 493. 386 reference thereto, subsection (1) of section 311.14, Florida
358 (b) Has successfully completed the certified training 387 Statutes, is reenacted to read:
359 curriculum for a Class D license or has been determined by the 388 311.14 Seaport planning.—
360 Department of Agriculture and Consumer Services to have 389 (1) The Department of Transportation shall develop, in
361 equivalent experience as established by rule of the department. 390 coordination with the ports listed in s. 311.09(1) and other
362 (c) Has completed the training or training equivalency and 391 partners, a Statewide Seaport and Waterways System Plan. This
363 testing process established by this section for becoming a 392 plan shall be consistent with the goals of the Florida
364 certified seaport security officer. 393 Transportation Plan developed pursuant to s. 339.155 and shall
365 (3) The Seaport Security Officer Qualification, Training, 394 consider needs identified in individual port master plans and
366 and Standards Coordinating Council is created under the 395 those from the seaport strategic plans required under this
367 Department of Law Enforcement. 396 section. The plan will identify 5-year, 10-year, and 20-year
368 (a) The executive director of the Department of Law 397 needs for the seaport system and will include seaport, waterway,
369 Enforcement shall appoint 11 members to the council, to include: 398 road, and rail projects that are needed to ensure the success of
370 1. The seaport administrator of the Department of Law 399 the transportation system as a whole in supporting state
371 Enforcement. 400 economic development goals.
372 2. The Commissioner of Education or his or her designee. 401 Section 11. For the purpose of incorporating the amendment
373 3. The director of the Division of Licensing of the 402 made by this act to section 311.09, Florida Statutes, in a
374 Department of Agriculture and Consumer Services. 403 reference thereto, section 315.18, Florida Statutes, is
375 4. The administrator of the Florida Seaport Transportation 404 reenacted to read:
376 and Economic Development Council. 405 315.18 Confidentiality of certain records held by deepwater
377 5. Two seaport security directors from seaports designated 406 ports.—Any proposal or counterproposal exchanged between a
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407 deepwater port listed in s. 311.09(1) and any nongovernmental 436 described in s. 311.07(3)(b). Such revenues may be assigned,
408 entity, relating to the sale, use, or lease of land or of port 437 pledged, or set aside as a trust for the payment of principal or
409 facilities, and any financial records submitted by any 438 interest on bonds, tax anticipation certificates, or any other
410 nongovernmental entity to such a deepwater port for the purpose 439 form of indebtedness issued by an individual port or appropriate
411 of the sale, use, or lease of land or of port facilities, are 440 local government having jurisdiction thereof, or collectively by
412 confidential and exempt from s. 119.07(1) and s. 24(a), Art. I 441 interlocal agreement among any of the ports, or used to purchase
413 of the State Constitution. However, 30 days before any such 442 credit support to permit such borrowings. However, such debt is
414 proposal or counterproposal is considered for approval by the 443 not a general obligation of the state. The state covenants with
415 governing body of such a deepwater port, the proposal or 444 holders of such revenue bonds or other instruments of
416 counterproposal shall cease to be exempt. If no proposal or 445 indebtedness issued that it will not repeal or impair or amend
417 counterproposal is submitted to the governing body for approval, 446 in any manner that will materially and adversely affect the
418 such a proposal or counterproposal shall cease to be exempt 90 447 rights of such holders so long as bonds authorized by this
419 days after the cessation of negotiations. 448 section are outstanding. Any revenues that are not pledged to
420 Section 12. For the purpose of incorporating the amendment 449 the repayment of bonds authorized by this section may be used
421 made by this act to section 311.09, Florida Statutes, in 450 for purposes authorized under the Florida Seaport Transportation
422 references thereto, subsections (3) and (4) of section 320.20, 451 and Economic Development Program. This revenue source is in
423 Florida Statutes, are reenacted to read: 452 addition to any amounts provided and appropriated in accordance
424 320.20 Disposition of license tax moneys.—The revenue 453 with s. 311.07. The Florida Seaport Transportation and Economic
425 derived from the registration of motor vehicles, including any 454 Development Council shall approve the distribution of funds to
426 delinquent fees and excluding those revenues collected and 455 ports for projects that have been approved pursuant to s.
427 distributed under the provisions of s. 320.081, must be 456 311.09(5)-(8). The council and the Department of Transportation
428 distributed monthly, as collected, as follows: 457 may perform acts required to facilitate and implement this
429 (3) Notwithstanding any other provision of law except 458 subsection. To better enable the ports to cooperate to their
430 subsections (1) and (2), $15 million shall be deposited annually 459 mutual advantage, the governing body of each port may exercise
431 into the State Transportation Trust Fund solely for the purposes 460 powers provided to municipalities or counties in s. 163.01(7)(d)
432 of funding the Florida Seaport Transportation and Economic 461 subject to chapter 311 and special acts, if any, pertaining to a
433 Development Program as provided in chapter 311. Such revenues 462 port. The use of funds provided pursuant to this subsection are
434 shall be distributed on a 50-50 matching basis to any port 463 limited to eligible projects listed in this subsection. Income
435 listed in s. 311.09(1) to be used for funding projects as 464 derived from a project completed with the use of program funds,
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465 beyond operating costs and debt service, is restricted solely to 494 Department of Transportation, up to the amounts needed to offset
466 further port capital improvements consistent with maritime 495 the funding requirements of this section.
467 purposes. Use of such income for nonmaritime purposes is 496 (b) For seaport intermodal access projects as described in
468 prohibited. The revenues available under this subsection may not 497 s. 341.053(6) which are identified in the 5-year Florida Seaport
469 be pledged to the payment of any bonds other than the Florida 498 Mission Plan as provided in s. 311.09(3). Funding for such
470 Ports Financing Commission Series 1996 and Series 1999 Bonds 499 projects shall be on a matching basis as mutually determined by
471 currently outstanding; however, such revenues may be pledged to 500 the Florida Seaport Transportation and Economic Development
472 secure payment of refunding bonds to refinance the Florida Ports 501 Council and the Department of Transportation if a minimum of 25
473 Financing Commission Series 1996 and Series 1999 Bonds. 502 percent of total project funds come from any port funds, local
474 Refunding bonds secured by revenues available under this 503 funds, private funds, or specifically earmarked federal funds.
475 subsection may not be issued with a final maturity later than 504 (c) On a 50-50 matching basis for projects as described in
476 the final maturity of the Florida Ports Financing Commission 505 s. 311.07(3)(b).
477 Series 1996 and Series 1999 Bonds or which provide for higher 506 (d) For seaport intermodal access projects that involve the
478 debt service in any year than is currently payable on such 507 dredging or deepening of channels, turning basins, or harbors;
479 bonds. Any revenue bonds or other indebtedness issued after July 508 or the rehabilitation of wharves, docks, or similar structures.
480 1, 2000, other than refunding bonds shall be issued by the 509 Funding for such projects requires a 25 percent match of the
481 Division of Bond Finance at the request of the Department of 510 funds received pursuant to this subsection. Matching funds must
482 Transportation pursuant to the State Bond Act. 511 come from port funds, federal funds, local funds, or private
483 (4) Notwithstanding any other provision of law except 512 funds.
484 subsections (1), (2), and (3), $10 million shall be deposited 513
485 annually into the State Transportation Trust Fund solely for the 514 Such revenues may be assigned, pledged, or set aside as a trust
486 purposes of funding the Florida Seaport Transportation and 515 for the payment of principal or interest on bonds, tax
487 Economic Development Program as provided in chapter 311 and for 516 anticipation certificates, or other form of indebtedness issued
488 funding seaport intermodal access projects of statewide 517 by an individual port or appropriate local government having
489 significance as provided in s. 341.053. Such revenues shall be 518 jurisdiction thereof, or collectively by interlocal agreement
490 distributed to any port listed in s. 311.09(1), to be used for 519 among any of the ports, or used to purchase credit support to
491 funding projects as follows: 520 permit such borrowings. However, such debt is not a general
492 (a) For any seaport intermodal access projects that are 521 obligation of the state. This state covenants with holders of
493 identified in the 1997-1998 Tentative Work Program of the 522 such revenue bonds or other instruments of indebtedness issued
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523 hereunder that it will not repeal, impair, or amend this 552 better enable the ports to cooperate to their mutual advantage,
524 subsection in a manner that will materially and adversely affect 553 the governing body of each port may exercise powers provided to
525 the rights of holders while bonds authorized by this subsection 554 municipalities or counties in s. 163.01(7)(d) subject to the
526 remain outstanding. Revenues that are not pledged to the 555 provisions of chapter 311 and special acts, if any, pertaining
527 repayment of bonds as authorized by this section may be used for 556 to a port. The use of funds provided pursuant to this subsection
528 purposes authorized under the Florida Seaport Transportation and 557 is limited to eligible projects listed in this subsection. The
529 Economic Development Program. This revenue source is in addition 558 revenues available under this subsection may not be pledged to
530 to any amounts provided for and appropriated in accordance with 559 the payment of any bonds other than the Florida Ports Financing
531 s. 311.07 and subsection (3). The Florida Seaport Transportation 560 Commission Series 1996 and Series 1999 Bonds currently
532 and Economic Development Council shall approve distribution of 561 outstanding; however, such revenues may be pledged to secure
533 funds to ports for projects that have been approved pursuant to 562 payment of refunding bonds to refinance the Florida Ports
534 s. 311.09(5)-(8), or for seaport intermodal access projects 563 Financing Commission Series 1996 and Series 1999 Bonds.
535 identified in the 5-year Florida Seaport Mission Plan as 564 Refunding bonds secured by revenues available under this
536 provided in s. 311.09(3) and mutually agreed upon by the Florida 565 subsection may not be issued with a final maturity later than
537 Seaport Transportation and Economic Development Council and the 566 the final maturity of the Florida Ports Financing Commission
538 Department of Transportation. All contracts for actual 567 Series 1996 and Series 1999 Bonds and may not provide for higher
539 construction of projects authorized by this subsection must 568 debt service in any year than is currently payable on such
540 include a provision encouraging employment of participants in 569 bonds. Any revenue bonds or other indebtedness issued after July
541 the welfare transition program. The goal for such employment is 570 1, 2000, other than refunding bonds shall be issued by the
542 25 percent of all new employees employed specifically for the 571 Division of Bond Finance at the request of the Department of
543 project, unless the Department of Transportation and the Florida 572 Transportation pursuant to the State Bond Act.
544 Seaport Transportation and Economic Development Council 573 Section 13. For the purpose of incorporating the amendment
545 demonstrate that such a requirement would severely hamper the 574 made by this act to section 311.09, Florida Statutes, in a
546 successful completion of the project. In such an instance, 575 reference thereto, subsection (1) of section 334.27, Florida
547 CareerSource Florida, Inc., shall establish an appropriate 576 Statutes, is reenacted to read:
548 percentage of employees who are participants in the welfare 577 334.27 Governmental transportation entities; property
549 transition program. The council and the Department of 578 acquired for transportation purposes; limitation on soil or
550 Transportation may perform such acts as are required to 579 groundwater contamination liability.—
551 facilitate and implement the provisions of this subsection. To 580 (1) For the purposes of this section, the term
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581 “governmental transportation entity” means the department; an 610 defined in s. 332.004, the entity performing design and
582 authority created pursuant to chapter 343, chapter 348, or 611 construction engineering and inspection services may not be the
583 chapter 349; airports as defined in s. 332.004(14); a port 612 same entity.
584 enumerated in s. 311.09(1); a county; or a municipality. 613 Section 15. For the purpose of incorporating the amendment
585 Section 14. For the purpose of incorporating the amendment 614 made by this act to section 311.09, Florida Statutes, in a
586 made by this act to section 311.09, Florida Statutes, in a 615 reference thereto, subsection (12) of section 373.406, Florida
587 reference thereto, subsection (7) of section 337.14, Florida 616 Statutes, is reenacted to read:
588 Statutes, is reenacted to read: 617 373.406 Exemptions.—The following exemptions shall apply:
589 337.14 Application for qualification; certificate of 618 (12) An overwater pier, dock, or a similar structure
590 qualification; restrictions; request for hearing.— 619 located in a deepwater port listed in s. 311.09 is not
591 (7) A “contractor” as defined in s. 337.165(1)(d) or his or 620 considered to be part of a stormwater management system for
592 her “affiliate” as defined in s. 337.165(1)(a) qualified with 621 which this chapter or chapter 403 requires stormwater from
593 the department under this section may not also qualify under s. 622 impervious surfaces to be treated if:
594 287.055 or s. 337.105 to provide testing services, construction, 623 (a) The port has a stormwater pollution prevention plan for
595 engineering, and inspection services to the department. This 624 industrial activities pursuant to the National Pollutant
596 limitation does not apply to any design-build prequalification 625 Discharge Elimination System Program; and
597 under s. 337.11(7) and does not apply when the department 626 (b) The stormwater pollution prevention plan also provides
598 otherwise determines by written order entered at least 30 days 627 similar pollution prevention measures for other activities that
599 before advertisement that the limitation is not in the best 628 are not subject to the National Pollutant Discharge Elimination
600 interests of the public with respect to a particular contract 629 System Program and that occur on the port’s overwater piers,
601 for testing services, construction, engineering, and inspection 630 docks, and similar structures.
602 services. This subsection does not authorize a contractor to 631 Section 16. For the purpose of incorporating the amendment
603 provide testing services, or provide construction, engineering, 632 made by this act to section 311.09, Florida Statutes, in
604 and inspection services, to the department in connection with a 633 references thereto, subsections (2) and (10) of section
605 construction contract under which the contractor is performing 634 373.4133, Florida Statutes, are reenacted to read:
606 any work. Notwithstanding any other provision of law to the 635 373.4133 Port conceptual permits.—
607 contrary, for a project that is wholly or partially funded by 636 (2) Any port listed in s. 311.09(1) may apply to the
608 the department and administered by a local governmental entity, 637 department for a port conceptual permit, including any
609 except for a seaport listed in s. 311.09 or an airport as 638 applicable authorization under chapter 253 to use sovereignty
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639 submerged lands under a joint coastal permit pursuant to s. 668 Section 17. For the purpose of incorporating the amendment
640 161.055 or an environmental resource permit issued pursuant to 669 made by this act to section 311.09, Florida Statutes, in a
641 this part, for all or a portion of the area within the 670 reference thereto, paragraph (d) of subsection (6) of section
642 geographic boundaries of the port. A private entity with a 671 373.4136, Florida Statutes, is reenacted to read:
643 controlling interest in property used for private industrial 672 373.4136 Establishment and operation of mitigation banks.—
644 marine activities in the immediate vicinity of a port listed in 673 (6) MITIGATION SERVICE AREA.—The department or water
645 s. 311.09(1) may also apply for a port conceptual permit under 674 management district shall establish a mitigation service area
646 this section. A port conceptual permit may be issued for a 675 for each mitigation bank permit. The department or water
647 period of up to 20 years and extended one time for an additional 676 management district shall notify and consider comments received
648 10 years. A port conceptual permit constitutes the state’s 677 on the proposed mitigation service area from each local
649 conceptual certification of compliance with state water quality 678 government within the proposed mitigation service area. Except
650 standards for purposes of s. 401 of the Clean Water Act and the 679 as provided herein, mitigation credits may be withdrawn and used
651 state’s conceptual determination that the activities contained 680 only to offset adverse impacts in the mitigation service area.
652 in the port conceptual permit are consistent with the state 681 The boundaries of the mitigation service area shall depend upon
653 coastal zone management program. 682 the geographic area where the mitigation bank could reasonably
654 (10) In lieu of meeting the generally applicable stormwater 683 be expected to offset adverse impacts. Mitigation service areas
655 design standards in rules adopted under this part, which create 684 may overlap, and mitigation service areas for two or more
656 a presumption that stormwater discharged from the system will 685 mitigation banks may be approved for a regional watershed.
657 meet the applicable state water quality standards in the 686 (d) If the requirements in s. 373.414(1)(b) and (8) are
658 receiving waters, any port listed in s. 311.09(1) may propose 687 met, the following projects or activities regulated under this
659 alternative stormwater treatment and design criteria for the 688 part shall be eligible to use a mitigation bank, regardless of
660 construction, operation, and maintenance of stormwater 689 whether they are located within the mitigation service area:
661 management systems serving overwater piers. The proposal shall 690 1. Projects with adverse impacts partially located within
662 include such structural components or best management practices 691 the mitigation service area.
663 to address the stormwater discharge from the pier, including 692 2. Linear projects, such as roadways, transmission lines,
664 consideration of activities conducted on the pier, as are 693 distribution lines, pipelines, railways, or seaports listed in
665 necessary to provide reasonable assurance that stormwater 694 s. 311.09(1).
666 discharged from the system will meet the applicable state water 695 3. Projects with total adverse impacts of less than 1 acre
667 quality standards in the receiving waters. 696 in size.
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697 Section 18. For the purpose of incorporating the amendment 726
698 made by this act to section 311.09, Florida Statutes, in 727 The department shall implement such programs in conjunction with
699 references thereto, subsections (38) and (39) of section 728 its other powers and duties and shall place special emphasis on
700 403.061, Florida Statutes, are reenacted to read: 729 reducing and eliminating contamination that presents a threat to
701 403.061 Department; powers and duties.—The department shall 730 humans, animals or plants, or to the environment.
702 have the power and the duty to control and prohibit pollution of 731 Section 19. This act shall take effect July 1, 2022.
703 air and water in accordance with the law and rules adopted and
704 promulgated by it and, for this purpose, to:
705 (38) Provide a supplemental permitting process for the
706 issuance of a joint coastal permit pursuant to s. 161.055 or
707 environmental resource permit pursuant to part IV of chapter
708 373, to a port listed in s. 311.09(1), for maintenance dredging
709 and the management of dredged materials from maintenance
710 dredging of all navigation channels, port harbors, turning
711 basins, and harbor berths. Such permit shall be issued for a
712 period of 5 years and shall be annually extended for an
713 additional year if the port is in compliance with all permit
714 conditions at the time of extension. The department is
715 authorized to adopt rules to implement this subsection.
716 (39) Provide a supplemental permitting process for the
717 issuance of a conceptual joint coastal permit pursuant to s.
718 161.055 or environmental resource permit pursuant to part IV of
719 chapter 373, to a port listed in s. 311.09(1), for dredging and
720 the management of materials from dredging and for other related
721 activities necessary for development, including the expansion of
722 navigation channels, port harbors, turning basins, harbor
723 berths, and associated facilities. Such permit shall be issued
724 for a period of up to 15 years. The department is authorized to
725 adopt rules to implement this subsection.
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The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: CS/SB 1618
INTRODUCER: Senator Broxson
SUBJECT: Restrictions on Employment
DATE: January 25, 2022 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. McMillan McKay CM Fav/CS
2. JU
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1618 amends Florida’s non-compete statute, which allows for the enforcement of
contracts that restrict or prohibit competition as long as such contracts are reasonable in time,
area, and line of business.
The bill establishes in s. 542.335(3), F.S., that a restrictive covenant is only enforceable against a
former employee, agent, or independent contractor who voluntarily resigns, is terminated
because of misconduct, or does not satisfy reasonable performance standards or goals which
were set in advance. The bill clarifies that the termination or resignation of an employee
following a substantial unanticipated change in market conditions is not a termination for the
failure to satisfy reasonable performance standards or goals. Additionally, the bill provides that a
resignation resulting from a constructive termination is not voluntary.
The bill provides that s. 542.335(3), F.S., does not apply to a restrictive covenant that prohibits
disclosing a trade secret of the employer to third parties. Additionally, s. 542.335(3), F.S., does
not apply to a restrictive covenant sought to be enforced against a former employer, agent, or
independent contractor who is associated with the sale of all or part of the following:
The assets of a business or professional practice;
The shares of a corporation;
A partnership interest;
A limited liability company membership; or
An equity interest, of any other type, in a business or professional practice.
BILL: CS/SB 1618 Page 2
The bill establishes that ss. 542.335(1) and 542.335(2), F.S., apply to restrictive covenants
entered into on or after July 1, 1996, and before June 30, 2022, and s. 542.335(3), F.S., applies to
restrictive covenants entered into on or after July 1, 2022.
The bill takes effect July 1, 2022.
II. Present Situation:
Federal Antitrust Laws
In 1890, Congress passed the first antitrust law, the Sherman Act, as a comprehensive charter of
economic liberty aimed at preserving free and unfettered competition as the rule of trade.
Congress subsequently passed two additional antitrust laws in 1914: the Federal Trade
Commission Act, which created the Federal Trade Commission (FTC), and the Clayton Act.
Currently, these are the three core federal antitrust laws.1
The Sherman Act
The Sherman Act outlaws every contract, combination, or conspiracy in restraint of trade, and
any monopolization, attempted monopolization, or conspiracy or combination to monopolize.
The Sherman Act does not prohibit every restraint of trade, only those that are unreasonable. For
example, an agreement between two individuals to form a partnership may restrain trade, but
may not do so unreasonably, and thus may be lawful under the antitrust laws. In contrast, certain
acts are considered “per se” violations of the Sherman Act because they are so harmful to
competition. These include plain arrangements among competing individuals or businesses to fix
prices, divide markets, or rig bids.2
The penalties for violating the Sherman Act can be severe. Although most enforcement actions
are civil, the Sherman Act is also a criminal law, and individuals and businesses that violate it
may be prosecuted by the U.S. Department of Justice (DOJ). Criminal prosecutions are typically
limited to intentional and clear violations, such as when competitors fix prices or rig bids. The
Sherman Act imposes criminal penalties of up to $100 million for a corporation and $1 million
for an individual, along with up to 10 years in prison.3 Under some circumstances, the maximum
fines can reach twice the gain or loss involved.4
The Federal Trade Commission Act
The Federal Trade Commission Act prohibits unfair methods of competition and unfair or
deceptive acts or practices. The Supreme Court has said that all violations of the Sherman Act
also violate the FTC Act. Therefore, the FTC can bring cases under the FTC Act against the
same kinds of activities that violate the Sherman Act. The FTC Act also reaches other practices
1
See The Antitrust Laws, Federal Trade Commission, available at https://www.ftc.gov/tips-advice/competition-
guidance/guide-antitrust-laws/antitrust-laws (last visited Jan. 25, 2022).
2
Id.
3
See Antitrust Enforcement and the Consumer, U.S. Department of Justice, available at
https://www.justice.gov/atr/file/800691/download (last visited Jan. 25, 2022).
4
Id.
BILL: CS/SB 1618 Page 3
that harm competition but that may not fit neatly into categories of conduct formally prohibited
by the Sherman Act. Only the FTC brings cases under the FTC Act.5
The Clayton Act
The Clayton Act addresses specific practices that the Sherman Act does not clearly prohibit, such
as mergers and interlocking directorates.6 It also bans mergers and acquisitions where the effect
may substantially lessen competition or create a monopoly. As amended by the Robinson-
Patman Act of 1936, the Clayton Act also prohibits certain discriminatory prices, services, and
allowances in dealings between merchants. The Clayton Act was amended again in 1976 by the
Hart-Scott-Rodino Antitrust Improvements Act to require companies planning large mergers or
acquisitions to notify the government of their plans in advance. Additionally, private parties are
authorized to sue for triple damages when they have been harmed by conduct that violates either
the Sherman or Clayton Act and to obtain a court order prohibiting the anticompetitive practice
in the future.7
Florida Antitrust Laws
Florida law also provides protections against anticompetitive practices. Chapter 542, F.S., the
Florida Antitrust Act of 1980, has a stated purpose to complement the body of federal law
prohibiting restraints of trade or commerce in order to foster effective competition.8 It outlaws
every contract, combination, or conspiracy in restraint of trade or commerce in Florida9 and any
person from monopolizing or attempting or conspiring to monopolize any part of trade.10
Contracts in Restraint of Trade or Commerce
Generally, a contract in restraint of trade or commerce in Florida is unlawful.11 However, non-
competition restrictive covenants12 contained in employment agreements that are reasonable in
time, area, and line of business are not prohibited.13 In any action concerning enforcement of a
restrictive covenant, a court may not enforce a restrictive covenant unless it is set forth in a
writing signed by the person against whom enforcement is sought, and the person seeking
enforcement of a restrictive covenant must prove the existence of one or more legitimate
business interests justifying the restrictive covenant.14 The term “legitimate business interest”
includes, but is not limited to:
Trade secrets;15
5
See The Antitrust Laws, Federal Trade Commission, available at https://www.ftc.gov/tips-advice/competition-
guidance/guide-antitrust-laws/antitrust-laws (last visited Jan. 25, 2022).
6
“Interlocking directorates” means the same person making business decisions for competing companies. See also Id.
7
Id.
8
Section 542.16, F.S.
9
Section 542.18, F.S.
10
Section 542.19, F.S.
11
Section 542.18, F.S.
12
Section 542.335, F.S. employs the term “restrictive covenants” and includes all contractual restrictions such as
noncompetition/nonsolicitation agreements, confidentiality agreements, exclusive dealing agreements, and all other
contractual restraints of trade. See Henao v. Prof'l Shoe Repair, Inc., 929 So.2d 723, 726 (Fla. 5th DCA 2006).
13
Section 542.335(1), F.S.
14
Id.
15
Section 688.002(4), F.S., defines a trade secret as information, including a formula, pattern, compilation, program, device,
method, technique, or process that derives independent economic value, actual or potential, from not being generally known
BILL: CS/SB 1618 Page 4
Valuable confidential business or professional information that otherwise does not qualify as
trade secrets;
Substantial relationships with specific prospective or existing customers, patients, or clients;
Customer, patient, or client goodwill associated with:
o An ongoing business or professional practice, by way of trade name, trademark, service
mark, or “trade dress”;
o A specific geographic location; or
o A specific marketing or trade area; or
Extraordinary or specialized training.16
Any restrictive covenant not supported by a legitimate business interest is unlawful and is void
and unenforceable.17 A person seeking enforcement of a restrictive covenant must prove that the
contractually specified restraint is reasonably necessary to protect the legitimate business interest
or interests justifying the restriction.18
Restrictive Covenants in Healthcare
Currently in Florida, a restrictive covenant entered into with a physician who practices a medical
specialty in a county where one entity employs or contracts with all physicians who practice that
specialty in that county is not supported by a legitimate business interest, and is void and
unenforceable.19 The restrictive covenant remains void and unenforceable until 3 years after the
date on which a second entity that employs or contracts with one or more physicians who
practice that specialty begins serving patients in that county.20
III. Effect of Proposed Changes:
The bill amends s. 542.335, F.S., to provide that a restrictive covenant is only enforceable
against a former employee, agent, or independent contractor who voluntarily resigns, is
terminated for misconduct, or does not satisfy reasonable performance standards or goals which
were set in advance. The bill clarifies that the termination or resignation of an employee
following a substantial unanticipated change in market conditions is not a termination for the
failure to satisfy reasonable performance standards or goals. Additionally, the bill provides that a
resignation resulting from a constructive termination21 is not voluntary.
to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure
or use; and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
16
Section 542.335(1)(b), F.S.
17
Id.
18
Section 542.335(1)(c), F.S.
19
Section 542.336, F.S.
20
Id. 21st Century Oncology, Inc., sought a preliminary injunction to enjoin the application and enforcement of s. 542.336,
F.S. In August of 2019, the U.S. District Court for the Northern District of Florida denied the injunction. Although it was
determined that s. 542.336, F.S., did impair the plaintiff’s employment contracts within the meaning of the Contracts Clause,
the court held that the degree of impairment does not outweigh the statute’s significant, legitimate public purpose.
21
A “constructive discharge” occurs when an employee involuntarily resigns in order to escape intolerable and illegal
employment requirements. In order to prevail on a constructive discharge claim, an employee must show, under an objective
standard that the employer made working conditions so difficult that a reasonable person would feel compelled to resign. See
Vazquez v. City Of Hialeah Gardens, 874 So. 2d 626 (Fla. 3d DCA 2004). See also Webb v. Florida Health Care Mgmt.
Corp., 804 So.2d 422, 424 (Fla. 4th DCA 2001).
BILL: CS/SB 1618 Page 5
The bill establishes that for the purpose of s. 542.335(3), F.S., the term “misconduct” means all
misconduct warranting involuntary termination, regardless of whether the misconduct occurs at
the workplace or during working hours, and includes, but is not limited to, the following, which
may not be construed in pari materia with each other:
Conduct demonstrating conscious disregard of an employer’s interests and found to be a
deliberate violation or disregard of the reasonable standards of behavior which the employer
expects of his or her employee, agent, or independent contractor;22
Carelessness or negligence to a degree or recurrence that manifests culpability or wrongful
intent or shows an intentional and substantial disregard of the employer’s interests or of the
employee’s, agent’s or independent contractor’s duties and obligations to his or her
employer;
Chronic absenteeism or tardiness in deliberate violation of a known policy of the employer or
one or more unapproved absences following a written reprimand or warning relating to more
than one unapproved absence;
A willful and deliberate violation of a standard or regulation of the state by an employee,
agent, or independent contractor of an employer licensed or certified by the state, which
violation would cause the employer to be sanctioned or have its license or certification
suspended by the state;
A violation of an employer’s rule, unless the employee, agent, or independent contractor can
demonstrate the following:
o He or she did not know, and could not reasonably know, of the rules requirements;
o The rule is not lawful or not reasonably related to the job environment and performance;
or
o The rule is not fairly or consistently enforced; and
Committing criminal assault or battery on another employee, or on a customer or invitee of
the employer, or committing abuse or neglect of a patient, resident, disabled person, elderly
person, or child in her or his professional care.
The bill provides that s. 542.335(3), F.S., does not apply to a restrictive covenant that prohibits
disclosing a trade secret of the employer to third parties. Additionally, s. 542.335(3), F.S., does
not apply to a restrictive covenant sought to be enforced against a former employer, agent, or
independent contractor who is associated with the sale of all or part of the following:
The assets of a business or professional practice;
The shares of a corporation;
A partnership interest;
A limited liability company membership; or
An equity interest, of any other type, in a business or professional practice.
The bill establishes that ss. 542.335(1) and 542.335(2), F.S., apply to restrictive covenants
entered into on or after July 1, 1996, and before June 30, 2022, and s. 542.335(3), F.S., applies to
restrictive covenants entered into on or after July 1, 2022.
The bill takes effect July 1, 2022.
22
Such conduct may include, but is not limited to, willful damage to an employer’s property that results in damage of more
than $500, or theft of employer property or property of a customer or invitee of the employer.
BILL: CS/SB 1618 Page 6
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None Identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
The bill provides that a restrictive covenant is only enforceable against a former
employee, agent, or independent contractor who voluntarily resigns or is terminated
because of misconduct. This may provide more competition within the labor market.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 542.335 of the Florida Statutes.
BILL: CS/SB 1618 Page 7
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Commerce and Tourism on January 24, 2022:
The committee substitute adds that a restrictive covenant is enforceable against a former
employee, agent, or independent contractor who does not satisfy reasonable performance
standards or goals which were set in advance. The amendment clarifies that the
termination or resignation of an employee following a substantial unanticipated change in
market conditions is not a termination for the failure to satisfy reasonable performance
standards or goals.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2022 COMMITTEE AMENDMENT
Bill No. SB 1618
Ì679300wÎ679300
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
01/25/2022 .
.
.
.
The Committee on Commerce and Tourism (Broxson) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete line 18
4 and insert:
5 voluntarily resigns, is terminated for misconduct, or does not
6 satisfy reasonable performance standards or goals which were set
7 in advance. The termination or resignation of an employee
8 following a substantial unanticipated change in market
9 conditions is not a termination for the failure to satisfy
10 reasonable performance standards or goals. A
Page 1 of 2
1/24/2022 12:45:42 PM JU.CM.02238
Florida Senate - 2022 COMMITTEE AMENDMENT
Bill No. SB 1618
Ì679300wÎ679300
11
12 ================= T I T L E A M E N D M E N T ================
13 And the title is amended as follows:
14 Delete lines 6 - 7
15 and insert:
16 voluntarily resigned or was terminated for misconduct
17 or failing satisfy performance standards or goals;
18 defining the term "misconduct"; providing
Page 2 of 2
1/24/2022 12:45:42 PM JU.CM.02238
Florida Senate - 2022 SB 1618 Florida Senate - 2022 SB 1618
By Senator Broxson
1-00675A-22 20221618__ 1-00675A-22 20221618__
1 A bill to be entitled 30 employer expects of his or her employee, agent, or independent
2 An act relating to restrictions on employment; 31 contractor. Such conduct may include, but is not limited to,
3 amending s. 542.335, F.S.; providing that restrictive 32 willful damage to an employer’s property that results in damage
4 covenants are only enforceable against a former 33 of more than $500, or theft of employer property or property of
5 employee, agent, or independent contractor who 34 a customer or invitee of the employer.
6 voluntarily resigned or was terminated because of 35 2. Carelessness or negligence to a degree or recurrence
7 misconduct; defining the term “misconduct”; providing 36 that manifests culpability or wrongful intent or shows an
8 applicability; providing an effective date. 37 intentional and substantial disregard of the employer’s
9 38 interests or of the employee’s, agent’s, or independent
10 Be It Enacted by the Legislature of the State of Florida: 39 contractor’s duties and obligations to his or her employer.
11 40 3. Chronic absenteeism or tardiness in deliberate violation
12 Section 1. Subsection (3) of section 542.335, Florida 41 of a known policy of the employer or one or more unapproved
13 Statutes, is amended, and subsection (4) is added to that 42 absences following a written reprimand or warning relating to
14 section, to read: 43 more than one unapproved absence.
15 542.335 Valid restraints of trade or commerce.— 44 4. A willful and deliberate violation of a standard or
16 (3)(a) A restrictive covenant is only enforceable against a 45 regulation of the state by an employee, agent, or independent
17 former employee, agent, or independent contractor who 46 contractor of an employer licensed or certified by the state,
18 voluntarily resigns or is terminated because of misconduct. A 47 which violation would cause the employer to be sanctioned or
19 resignation resulting from a constructive termination is not 48 have its license or certification suspended by the state.
20 voluntary. 49 5. A violation of an employer’s rule, unless the employee,
21 (b) For purposes of this subsection, the term “misconduct” 50 agent, or independent contractor can demonstrate that:
22 means all misconduct warranting involuntary termination, 51 a. He or she did not know, and could not reasonably know,
23 regardless of whether the misconduct occurs at the workplace or 52 of the rule’s requirements;
24 during working hours, and includes, but is not limited to, the 53 b. The rule is not lawful or not reasonably related to the
25 following, which may not be construed in pari materia with each 54 job environment and performance; or
26 other: 55 c. The rule is not fairly or consistently enforced.
27 1. Conduct demonstrating conscious disregard of an 56 6. Committing criminal assault or battery on another
28 employer’s interests and found to be a deliberate violation or 57 employee, or on a customer or invitee of the employer, or
29 disregard of the reasonable standards of behavior which the 58 committing abuse or neglect of a patient, resident, disabled
Page 1 of 3 Page 2 of 3
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2022 SB 1618
1-00675A-22 20221618__
59 person, elderly person, or child in her or his professional
60 care.
61 (c) This subsection does not invalidate a covenant that
62 prohibits disclosing a trade secret of the employer to third
63 parties.
64 (d) This subsection does not apply to a restrictive
65 covenant sought to be enforced against a former employee, agent,
66 or independent contractor who is associated with the sale of all
67 or a part of:
68 1. The assets of a business or professional practice;
69 2. The shares of a corporation;
70 3. A partnership interest;
71 4. A limited liability company membership; or
72 5. An equity interest, of any other type, in a business or
73 professional practice.
74 (4)(a) Subsections (1) and (2) apply to restrictive
75 covenants entered into on or after July 1, 1996, and before June
76 30, 2022.
77 (b) Subsection (3) applies to restrictive covenants entered
78 into on or after July 1, 2022 This act shall apply
79 prospectively, and it shall not apply in actions determining the
80 enforceability of restrictive covenants entered into before July
81 1, 1996.
82 Section 2. This act shall take effect July 1, 2022.
Page 3 of 3
CODING: Words stricken are deletions; words underlined are additions.
The Florida Senate
Committee Agenda Request
To: Senator Ed Hooper, Chair
Committee on Commerce and Tourism
Subject: Committee Agenda Request
Date: January 13, 2022
I respectfully request that Senate Bill 1718, relating to Cosmetic Animal Testing, be placed on
the:
committee agenda at your earliest possible convenience.
next committee agenda.
Thank you for your consideration.
Minority Leader Lauren Book
Florida Senate, District 32
File signed original with committee office S-020 (03/2004)
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: SB 1718
INTRODUCER: Commerce and Tourism Committee and Senator Book
SUBJECT: Cosmetic Animal Testing
DATE: January 25, 2022 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Renner McKay CM Fav/CS
2. AP
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1718 creates the Humane Cosmetics Act and prohibits a manufacturer in this state from
manufacturing, importing for profit, selling, or offering for sale a cosmetic developed or
manufactured using cosmetic animal testing conducted or contracted by the manufacturer or any
supplier of the manufacturer, with certain exceptions.
A violation of this act constitutes a civil penalty of $5,000 and an additional $1,000 for each day
a person continues to violate the act. Violations may be enforced by the Attorney General, state
attorney, or the city attorney or county attorney of the city or county in which the violation
occurred.
The bill does not appear to have a fiscal impact on state or local government.
The bill takes effect July 1, 2022.
II. Present Situation:
Licensing and Regulation of Drugs, Devices and Cosmetics in Florida
The Florida Drug and Cosmetic Act (act) is found in part I of ch. 499, F.S.1 The act’s purpose is
to safeguard the public health and promote the public welfare by protecting the public from
1
Section 499.001, F.S., provides that ss. 499.001-499.94 is the Florida Drug and Cosmetic Act.
BILL: SB 1718 Page 2
injury by product use and by merchandising deceit involving drugs, devices, and cosmetics. 2 The
Department of Business and Professional Regulation (DBPR) is responsible for administering
and enforcing efforts to prevent fraud, adulteration, misbranding, or false advertising in the
preparation, manufacture, repackaging, or distribution of drugs, devices, and cosmetics.3
Administration of the act must conform to the Federal Food, Drug, and Cosmetic Act4 and the
applicable portions of the Federal Trade Commission Act,5 which prohibit the false advertising
of drugs, devices, and cosmetics.6
DBPR’s Division of Drugs, Devices and Cosmetics (division) issues permits to over-the-counter
drug manufacturers and cosmetic manufacturers and inspects permittees and enforces the act.7
In addition to the above, the act also provides:8
Criminal prohibitions against distribution of contraband and misbranded prescription drugs;
Regulations for the advertising and labeling of drugs, devices, and cosmetics; and
Enforcement avenues for DBPR, including seizure and condemnation of drugs, devices, and
cosmetics.
Over-the-Counter Drugs and Cosmetics
Part I of Ch. 499, F.S., Definitions
A “proprietary drug,” or “OTC drug,” is defined as a patent or over-the-counter drug in its
unbroken, original package, which is sold to the public by, or under the authority of, the
manufacturer or primary distributor thereof, is not misbranded, and can be purchased without a
prescription.9 The term “cosmetic” is defined as an article, with the exception of soap, that is: a)
intended to be rubbed, poured, sprinkled, or sprayed on or otherwise applied to the human body
for cleansing, beautifying, promoting attractiveness, or altering the appearance; or (b) intended
for use as a component of any such article.10
U.S. Food and Drug Administration Role and Guidance
Florida’s drugs, devices and cosmetics regulations must conform to the Federal Food, Drug, and
Cosmetic Act.11 The U.S. Food and Drug Administration (FDA) defines “over-the counter drug
products” as nonprescription drugs that are safe and effective for use by the general public
without seeking treatment by a health professional.12 The FDA reviews the active ingredients and
the labeling of classes of drugs instead of individual drug products because there are over
2
Section 499.002(1)(a), F.S.
3
Section 499.002(2), F.S.
4
21 U.S.C. ss. 301 et seq.
5
See 15 U.S.C. §§ 41-58, as amended.
6
Section 499.002(1)(b), F.S.
7
Id.
8
See ss. 499.0051, 499.0054, and 499.062, F.S.
9
Section 499.003(43), F.S.
10
Section 499.003(12), F.S.
11
See supra note 5.
12
U.S. Food and Drug Administration, Drug Applications for Over-the-Counter (OTC) Drugs, available at
https://www.fda.gov/drugs/types-applications/drug-applications-over-counter-otc-drugs (last visited Jan. 21, 2022).
BILL: SB 1718 Page 3
300,000 marketed OTC drug products.13 For each class, an OTC drug monograph14 is developed
and published in the Federal Register. According to the FDA, OTC drug monographs are a kind
of "recipe book" covering acceptable ingredients, doses, formulations, and labeling.15
The FDA defines “cosmetic products” in a fashion similar to the definition of cosmetic in
s. 499.003(12), F.S.16 Examples of cosmetics include skin moisturizers, perfumes, lipsticks,
fingernail polishes, eye and facial makeup, cleansing shampoos, permanent waves, hair colors,
and deodorants. Cosmetic products and ingredients do not need FDA premarket approval, with
the exception of color additives.17
FDA Guidance on Animal Testing and Cosmetics
The FDA advises cosmetic manufacturers to employ whatever testing is appropriate and
effective for substantiating the safety of their products. However, “in all cases where animal
testing is used, FDA advocates that research and testing derive the maximum amount of useful
scientific information from the minimum number of animals and employ the most humane
methods available within the limits of scientific capability.”18 The FDA also believes that
consideration should be given “to the use of scientific alternative methods to whole-animal
testing.”19
III. Effect of Proposed Changes:
The bill creates the Humane Cosmetics Act and prohibits a manufacturer20 in this state from:
Manufacturing, importing for profit, selling, or offering for sale a cosmetic developed or
manufactured using cosmetic animal testing conducted or contracted by the manufacturer or
any supplier21 of the manufacturer.
Conducting or contracting for cosmetic animal testing.
The bill defines “cosmetic animal testing” as the internal or external application of a cosmetic in
its final form or any ingredient used in the formulation of such cosmetic to the skin, eyes, or
other body part of a live, nonhuman vertebrate. Reviewing, assessing, or retaining evidence from
a cosmetic animal test does not constitute developing or manufacturing a cosmetic using animal
testing.
13
Id.
14
An OTC monograph establishes conditions under which certain OTC drugs may be marketed without approved new drug
applications because they are “generally recognized as safe and effective” (GRASE) and not misbranded.
15
See supra note 5.
16
See U.S. Food and Drug Administration, FDA Authority over Cosmetics: How Cosmetics Are Not FDA-Approved, but Are
FDA-Regulated, available at https://www.fda.gov/cosmetics/cosmetics-laws-regulations/fda-authority-over-cosmetics-how-
cosmetics-are-not-fda-approved-are-fda-regulated#What_kinds (last visited Jan. 21, 2022)
17
Id.
18
See U.S. Food and Drug Administration, Animal Testing & Cosmetics (8/24/2020), available at
https://www.fda.gov/cosmetics/product-testing-cosmetics/animal-testing-cosmetics (last visited Jan. 21, 2022).
19
Id.
20
The bill defines a “manufacturer” as any person whose name appears on the label of a cosmetic pursuant to requirements of
the name and place of business of the manufacturers, packers, or distributors on cosmetic labels under 21 C.F.R. § 701.12, as
those requirements exist on July 1, 2022.
21
The bill defines a “supplier” as the entity that supplies, directly or through a third party, any ingredient used in the
formulation of a manufacturer’s cosmetics.
BILL: SB 1718 Page 4
The prohibitions do not apply if cosmetic animal testing is conducted to comply with the
following:
A requirement of a federal or state law or regulation, if all of the following apply:
o The ingredient is in wide use and cannot be replaced by another ingredient capable of
performing a similar function.
o A specific human health problem is substantiated and the need to conduct animal tests is
justified and is supported by a detailed research protocol proposed as the basis for the
evaluation.
o There is no non-animal alternative method accepted for the relevant endpoint by the
relevant federal or state authority.
Chapter V of the Federal Food, Drug, and Cosmetic Act relating to drugs and devices;
A requirement of a foreign regulatory authority if no evidence derived from such testing was
relied upon to substantiate the safety of the cosmetic sold in the state by the manufacturer; or
For noncosmetic purposes, a requirement of a federal, state, or foreign regulatory authority if
no evidence derived from such testing was relied upon to substantiate the safety of the
cosmetic sold in the state by the manufacturer.
For the above exceptions, manufacturers must include a statement printed on the label or
packaging of the cosmetic stating: “This product or an ingredient used in the formulation of this
product has been tested on animals.”
A person who violates the Humane Cosmetics Act is subject to a civil penalty of $5,000 and an
additional $1,000 for each day a person continues to violate the act. Violations may be enforced
by the Attorney General, state attorney, or the city attorney or county attorney of the city or
county in which the violation occurred. The civil penalty must be remitted to the entity
authorized to bring an action to enforce such penalty.
The bill takes effect July 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
BILL: SB 1718 Page 5
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
Manufacturers are prohibited from importing for profit, selling, or offering for sale a
cosmetic developed or manufactured using cosmetic animal testing, with certain
exceptions, and is subject to a $5,000 civil penalty for violating the Humane Cosmetics
Act and an additional $1,000 for each day a person continues to violate the act.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill creates section 499.075 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Commerce and Tourism on January 24, 2022:
Limits manufacturer prohibitions to activity in Florida.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2022 COMMITTEE AMENDMENT
Bill No. SB 1718
Ì539134&Î539134
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
01/25/2022 .
.
.
.
The Committee on Commerce and Tourism (Book) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete line 45
4 and insert:
5 manufacturer may not perform any of the following acts in this
6 state:
7
8 ================= T I T L E A M E N D M E N T ================
9 And the title is amended as follows:
10 Delete line 5
Page 1 of 2
1/21/2022 11:50:09 AM 577-02148-22
Florida Senate - 2022 COMMITTEE AMENDMENT
Bill No. SB 1718
Ì539134&Î539134
11 and insert:
12 importing for profit, selling, or offering for sale in
13 this state a
Page 2 of 2
1/21/2022 11:50:09 AM 577-02148-22
Florida Senate - 2022 SB 1718 Florida Senate - 2022 SB 1718
By Senator Book
32-01335-22 20221718__ 32-01335-22 20221718__
1 A bill to be entitled 30 ingredient used in the formulation of such cosmetic to the skin,
2 An act relating to cosmetic animal testing; creating 31 eyes, or other body part of a live, nonhuman vertebrate.
3 s. 499.075, F.S.; providing a short title; defining 32 Reviewing, assessing, or retaining evidence from a cosmetic
4 terms; prohibiting a manufacturer from manufacturing, 33 animal test does not constitute developing or manufacturing a
5 importing for profit, selling, or offering for sale a 34 cosmetic using animal testing for purposes of this section.
6 cosmetic developed or manufactured using cosmetic 35 (c) “Ingredient” means any single chemical entity or
7 animal testing conducted or contracted by certain 36 mixture used as a component in the manufacture of a cosmetic
8 persons or from conducting or contracting for cosmetic 37 product.
9 animal testing; providing exceptions; providing 38 (d) “Manufacturer” means any person whose name appears on
10 labeling requirements for specified cosmetics; 39 the label of a cosmetic pursuant to the requirements of 21
11 providing enforcement and civil penalties; providing 40 C.F.R. s. 701.12 as those requirements exist on July 1, 2022.
12 an effective date. 41 (e) “Supplier” means an entity that supplies, directly or
13 42 through a third party, any ingredient used in the formulation of
14 Be It Enacted by the Legislature of the State of Florida: 43 a manufacturer’s cosmetic.
15 44 (3) PROHIBITION.—Except as provided in subsection (4), a
16 Section 1. Section 499.075, Florida Statutes, is created to 45 manufacturer may not:
17 read: 46 (a) Manufacture, import for profit, sell, or offer for sale
18 499.075 Cosmetic Animal Testing.— 47 a cosmetic developed or manufactured using cosmetic animal
19 (1) SHORT TITLE.—This section may be cited as the “Humane 48 testing conducted or contracted by the manufacturer or any
20 Cosmetics Act.” 49 supplier of the manufacturer.
21 (2) DEFINITIONS.—For the purposes of this section: 50 (b) Conduct or contract for cosmetic animal testing.
22 (a) “Cosmetic” means any article intended to be rubbed, 51 (4) EXCEPTIONS.—The prohibitions under subsection (3) do
23 poured, sprinkled, or sprayed on, introduced into, or otherwise 52 not apply if cosmetic animal testing is conducted to comply with
24 applied to the human body or any part thereof for cleansing, 53 the following:
25 beautifying, promoting attractiveness, or altering the 54 (a) A requirement of a federal or state law or regulation,
26 appearance, including, but not limited to, personal hygiene 55 if all of the following apply:
27 products such as deodorant, shampoo, or conditioner. 56 1. The ingredient is in wide use and cannot be replaced by
28 (b) “Cosmetic animal testing” means the internal or 57 another ingredient capable of performing a similar function.
29 external application of a cosmetic in its final form or any 58 2. A specific human health problem is substantiated and the
Page 1 of 3 Page 2 of 3
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Florida Senate - 2022 SB 1718
32-01335-22 20221718__
59 need to conduct animal tests is justified and is supported by a
60 detailed research protocol proposed as the basis for the
61 evaluation.
62 3. There is no nonanimal alternative method accepted for
63 the relevant endpoint by the relevant federal or state
64 authority;
65 (b) Chapter V of the Federal Food, Drug, and Cosmetic Act;
66 (c) A requirement of a foreign regulatory authority if no
67 evidence derived from such testing was relied upon to
68 substantiate the safety of the cosmetic sold in the state by the
69 manufacturer; or
70 (d) For noncosmetic purposes, a requirement of a federal,
71 state, or foreign regulatory authority if no evidence derived
72 from such testing was relied upon to substantiate the safety of
73 the cosmetic sold in the state by the manufacturer.
74 (5) LABELING.—For a cosmetic described in subsection (4), a
75 manufacturer shall include the following statement legibly
76 printed on the label or packaging of the cosmetic: “This product
77 or an ingredient used in the formulation of this product has
78 been tested on animals.”
79 (6) ENFORCEMENT AND PENALTIES.—A person who violates this
80 section is subject to a civil penalty of $5,000 and an
81 additional $1,000 for each day he or she continues to violate
82 this section. A violation of this section may be enforced by the
83 Attorney General, state attorney, or the city attorney or county
84 attorney of the city or county in which the violation occurred.
85 The civil penalty shall be remitted to the entity authorized to
86 bring an action to enforce such penalty.
87 Section 2. This act shall take effect July 1, 2022.
Page 3 of 3
CODING: Words stricken are deletions; words underlined are additions.
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: SB 1762
INTRODUCER: Senator Brandes
SUBJECT: Solicitation of Nonmedical Services
DATE: January 21, 2022 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. McMillan McKay CM Pre-meeting
2. JU
3. RC
I. Summary:
The bill creates s. 501.20791, F.S., which provides that it is a deceptive and unfair trade practice
for a person to submit or approve the submittal of a nonmedical solicitation for publication,
broadcast, or dissemination, or to pay for or otherwise sponsor a nonmedical solicitation if the
solicitation meets or fails to meet specified criteria, including the following:
Fails to clearly disclose the phrase, “this is a paid advertisement for nonmedical services;”
Includes terminology implying that the advertisement is a public alert or announcement;
Displays a logo in a manner implying affiliation with a governmental agency;
Includes terminology implying that the product has been recalled;
Fails to clearly disclose the sponsor of the advertisement;
Fails to clearly disclose the individual or entity that will provide professional services; and
Fails to include any required disclosure.
The bill creates s. 877.025, F.S., which provides that a person who is soliciting professional
services may not use, cause to be used, obtain, sell, transfer, or disclose to another person an
individual’s protected health information, without the individual’s written authorization.
The Criminal Justice Impact Conference, which provides the final, official estimate of the prison
bed impact, if any, of legislation, has not yet reviewed the bill. However, since the bill creates a
new second degree felony, it will likely have a positive indeterminate (i.e., unquantifiable
increase) prison bed impact on the Department of Corrections. The bill also creates a new
misdemeanor, which will likely have a positive indeterminate (i.e., unquantifiable increase) jail
bed impact on counties.
Except as otherwise provided, the bill takes effect July 1, 2022.
BILL: SB 1762 Page 2
II. Present Situation:
Attorney Advertising Seeking Plaintiffs against Pharmaceutical Companies
The television advertisements that attorneys use to find personal injury clients has generated
concerns at the federal level. In 2019, the Federal Trade Commission (FTC) contacted seven law
firms and lead generating companies to express concerns that some of their “television
advertisements that solicit clients for personal injury lawsuits against drug manufacturers may be
deceptive or unfair under the FTC Act.” The warning letters also stated that some of the ads
might misrepresent the risks associated with certain medications and could lead consumers to the
false conclusion that their prescribed medication had been recalled.1
The FTC also noted that the Food and Drug Administration’s (FDA) Adverse Event Reporting
System contained reports of consumers who had viewed advertisements about the prescription
drugs they were taking, then discontinued those medications, and suffered harmful
consequences.2 The FTC warned that advertisements that cause, or are likely to cause, viewers to
discontinue their prescribed medications might create an unfair act or practice. As a remedial
step, the FTC recommended those advertisements “include clear and prominent audio and visual
disclosures” stating that a consumer should not stop taking prescribed medication without first
consulting a doctor.3
In 2020, a Congressman asked the Chairman of the FTC for a progress report on the effects of
the seven warning letters issued in 2019. The Chairman replied that each recipient committed to
heed the FTC warnings for future lawsuit advertising. When asked if various renditions of the
lawsuit advertisements violated the FTC Act, the Chairman essentially said that it depended on
the actual claim involved. The Chairman did note that FTC staff had reviewed state laws enacted
in West Virginia, Texas, and Tennessee to address deceptive lawsuit advertisements but has not
taken a position on federal legislation on the topic. These state laws contain provisions similar to
this bill.4
Florida Deceptive and Unfair Trade Practices Act (FDUTPA)
History and Purpose of FDUTPA
The Florida Deceptive and Unfair Trade Practices Act (FDUTPA) became law in 1973.5 The
FDUTPA is a consumer and business protection measure that prohibits unfair methods of
competition, unconscionable acts or practices, and unfair or deceptive acts or practices in trade or
1
See Federal Trade Commission, FTC Flags Potentially Unlawful TV Ads for Prescription Drug Lawsuits (September 24,
2019), available at https://www.ftc.gov/news-events/press-releases/2019/09/ftc-flags-potentially-unlawful-tv-ads-
prescription-drug-lawsuits (last visited Jan. 21, 2022).
2
Id.
3
Id.
4
Correspondence from Joseph J. Simons, Chairman of the Federal Trade Commission, to The Honorable Greg Walden,
Committee on Energy and Commerce, U.S. House of Representatives, (November 17, 2020), available at http://republicans-
energycommerce.house.gov/wp-content/uploads/2020/11/2020.11.17-FTC-to-Rep.-Walden-Lawyer-Ads-.pdf (last visited
Jan. 21, 2022).
5
Ch. 73-124, Laws of Fla.; codified at part II of ch. 501, F.S.
BILL: SB 1762 Page 3
commerce.6 The FDUTPA is based on federal law, and s. 501.204(2), F.S., provides that it is the
intent of the Legislature that due consideration and great weight must be given to the
interpretations of the Federal Trade Commission and the federal courts relating to section 5 of
the Federal Trade Commission Act.7
The State Attorney or the Department of Legal Affairs may bring actions when it is in the public
interest on behalf of consumers or governmental entities.8 The Office of the State Attorney may
enforce violations of the FDUTPA if the violations take place in its jurisdiction.9 The
Department of Legal Affairs has enforcement authority if the violation is multi-jurisdictional, the
state attorney defers in writing, or the state attorney fails to act within 90 days after a written
complaint is filed.10 Consumers may also file suit through private actions.11
Remedies under the FDUTPA
The Department of Legal Affairs and the State Attorney, as enforcing authorities, may seek the
following remedies:
Declaratory judgments;
Injunctive relief;
Actual damages on behalf of consumers and businesses;
Cease and desist orders; and
Civil penalties of up to $10,000 per willful violation.12
Remedies for private parties are limited to the following:
A declaratory judgment and an injunction where a person is aggrieved by a FDUTPA
violation; and
Actual damages, attorney fees and court costs, where a person has suffered a loss due to a
FDUTPA violation.13
6
See s. 501.202, F.S. Trade or commerce means the advertising, soliciting, providing, offering, or distributing, whether by
sale, rental, or otherwise, of any good or service, or any property, whether tangible or intangible, or any other article,
commodity, or thing of value, wherever situated. “Trade or commerce” shall include the conduct of any trade or commerce,
however denominated, including any nonprofit or not-for-profit person or activity. See s. 501.203(8), F.S.
7
See s 501.204(2), F.S.
8
See ss. 501.203(2), 501.206, and 501.207, F.S.
9
Section 501.203(2), F.S.
10
Id.
11
Section 501.211, F.S.
12
Sections 501.207(1), 501.208, and 501.2075, F.S. Civil Penalties are deposited into general revenue. Enforcing authorities
may also request attorney fees and costs of investigation or litigation. Section 501.2105, F.S.
13
Section 501.211(1) and (2), F.S.
BILL: SB 1762 Page 4
Federal Unfair and Deceptive Trade Practices
The Federal Trade Commission’s (FTC’s) unfair and deceptive trade practices regulations
prohibit unfair14 or deceptive15 acts or practices in or affecting commerce.16 The FTC’s
regulations include “Truth In Advertising” guidelines, which require advertisements to be
truthful, not misleading, and, when appropriate, backed by scientific evidence.17 To enforce these
regulations, the FTC takes law enforcement actions, provides consumer and business education,
issues reports and policy guidance, leads workshops, and participates in other forums.18
Legal Advertising
Section 15 of Article V of the Florida Constitution vests exclusive jurisdiction in the Florida
Supreme Court to regulate admissions to the bar and to discipline admitted attorneys. The
Florida Bar approves lawyer advertising, issues advisory opinions interpreting rules, and
investigates and prosecutes attorneys for alleged violations.19 Florida’s legal advertising rules
apply to all forms of communication soliciting legal services in any print or electronic form.20
Advertisements in specified media must be submitted to the Legal Division of the Florida Bar at
least 20 days prior to dissemination, including print, television, radio, direct mail, and Internet. 21
The Legal Division reviews an advertisement to determine whether it complies with the Florida
Bar’s advertising rules, and issues an opinion either approving or disapproving the
advertisement. The Disciplinary Counsel of the Florida Bar investigates and prosecutes attorneys
for alleged violations of the advertising rules.22
Florida Bar rules require legal advertising to include:
The name of the lawyer or law firm;23
The location of the law practice;24 and
14
An “unfair” practice is unfair if it causes or is likely to cause substantial injury to consumers which is not reasonably
avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition. See 15
U.S.C. Sec. 45(n).
15
A “deceptive” practice involves a material representation, omission or practice that is likely to mislead a consumer acting
reasonably in the circumstances. See FTC Policy Statement on Deception (Oct. 14, 1983) available at
https://www.ftc.gov/system/files/documents/public_statements/410531/831014deceptionstmt.pdf (last visited Jan. 21, 2022).
See also Federal Trade Commission, A Brief Overview of the Federal Trade Commission's Investigative, Law Enforcement,
and Rulemaking Authority (revised, May 2021) available at https://www.ftc.gov/about-ftc/what-we-do/enforcement-authority
(last visited Jan. 21, 2022).
16
15 U.S.C. s. 45(a)(1).
17
Federal Trade Commission, Truth In Advertising, available at https://www.ftc.gov/news-events/media-resources/truth-
advertising (last visited Jan. 21, 202).
18
Federal Trade Commission, Protecting Consumers from Fraud and Deception, available at https://www.ftc.gov/news-
events/media-resources/truth-advertising/protecting-consumers (last visited Jan. 21, 2022).
19 The Florida Bar, Frequently Asked Questions About the Florida Bar, available at https://www.floridabar.org/about/faq/ (last visited Jan.
21, 2022).
20 Fla. Bar Code Prof. Resp. D. R. 4-7.11(a).
21 Fla. Bar Code Prof. Resp. D. R. 4-7.19.
22 Fla. Bar Code Prof. Resp. D. R. 4-7.19.
23 Fla. Bar Code Prof. Resp. D. R. 4-7.12(a)(1).
24 Fla. Bar Code Prof. Resp. D. R. 4-7.12(a)(2).
BILL: SB 1762 Page 5
Certain disclosures when relevant, including whether a case will be referred to another
lawyer;25 a spokesperson in the advertisement is not an employee or member of the law
firm;26 or a scene depicted is a dramatization and not an actual event.27
Required information must be reasonably prominent and clearly legible if written, as well as,
clearly audible if spoken aloud.28
Health Insurance Portability and Accountability Act29 and its Related Rules
The Federal Health Insurance Portability and Accountability Act (HIPAA), protects personal
health information (PHI).30 HIPAA’s two pertinent implementing rules are the Privacy Rule and
the Security Rule. The Privacy Rule addresses the use and disclosure of an individual’s PHI by
covered entities.31 Covered entities include the following:
Health plans;
Health care providers;
Health care clearinghouses; and
Business associates of any of the above.32
A common example of PHI is a patient’s name, address, birth date, or social security number.
However, PHI does not include de-identified health information or employment-related records.
The Privacy Rule protects PHI that is held or transmitted by a covered entity or its business
associate by preventing covered entities from disclosing PHI without the patient’s consent or
knowledge unless it is being used or shared for treatment, payment, or healthcare operations or
for another exempt purpose.
The Privacy Rule also requires covered entities to prominently post an electronic notice and give
notice upon a specific request to patients regarding the manner in which it may use and disclose
PHI. A covered entity must also provide an accounting of disclosures it has made of a patient’s
PHI upon his or her request as well as a copy of his or her PHI.
The Security Rule applies to the subset of identifiable health information that a covered entity
creates, receives, maintains, or transmits in electronic form called “electronic protected health
information” (e-PHI).33 The Security Rule does not apply to PHI that is transmitted orally or in
writing. A covered entity must comply with the Security Rule by:
25
Fla. Bar Code Prof. Resp. D. R. 4-7.12(b).
26
Fla. Bar Code Prof. Resp. D. R. 4-7.13(b)(5).
27
Fla. Bar Code Prof. Resp. D. R. 4-7.13(b)(6).
28
Fla. Bar Code Prof. Resp. D. R. 4-7.12(d).
29
Pub. L. No. 104-191 (1996).
30
Protected health information includes all individually identifiable health information held or transmitted by a covered
entity or its business associate. Pub. L. No. 104-191 (1996).
31
45 C.F.R. §160 and 164. See also, Department of Health and Human Services, Summary of the HIPPA Privacy Rule (July
26, 2013) available at https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html (last visited Jan. 21,
2022).
32
U.S. Department of Health and Human Services, Office for Civil Rights, Summary of the HIPAA Privacy Rule, available at
https://www.hhs.gov/sites/default/files/privacysummary.pdf. (last visited Jan. 21 2022).
33
45 C.F.R. § 164.302-318.
BILL: SB 1762 Page 6
Ensuring the confidentiality, integrity, and availability of all electronic protected health
information;
Detecting and safeguarding against anticipated threats to the security of the information;
Protecting against anticipated impressible uses or disclosures; and
Certifying compliance by their workforce.
The Department of Health and Human Services may institute a civil enforcement under HIPAA
and may seek civil penalties. A civil penalty varies based on the severity of the violation, the
number of people affected, the nature of the data exposed, the length of time a violation was
allowed to persist, the prior compliance history of the covered entity, and the knowledge the
covered entity had of the violation.34 The Department of Justice may institute criminal
proceedings against a violator who knowingly obtained or disclosed PHI. Criminal penalties for
a HIPAA violation are triggered when a person obtains PHI for financial gain or under false
pretenses.35 The criminal penalty for such HIPAA violations are punishable by up to 10 years
imprisonment.36 There is no private cause of action under HIPAA.
III. Effect of Proposed Changes:
The bill creates s. 501.20791, F.S., which provides that it is a deceptive and unfair trade practice
for a person37 to submit or approve the submittal of a nonmedical solicitation for publication,
broadcast, or dissemination, or to pay for or otherwise sponsor a nonmedical solicitation if the
solicitation does any of the following:
Fails to clearly and conspicuously disclose at the outset of the solicitation the phrase, “this is
a paid advertisement for nonmedical services;”
Includes terminology implying that the advertisement is a “medical alert,” “health alert,”
“consumer alert,” “public service announcement,” or similar public alert or announcement;
Displays the logo, or a similar facsimile thereof, of a federal or state governmental agency in
a manner implying affiliation with or sponsorship by, a governmental agency;
Includes terminology, including use of the term “recall” when referring to a product,
implying that the product has been recalled when, in fact, the product has not been recalled
by a governmental agency or through agreement between a manufacturer and a governmental
agency;
Fails to clearly and conspicuously disclose the sponsor of the advertisement;
Fails to clearly and conspicuously disclose the individual or entity that will provide
professional services to persons responding to the advertisement or how those persons will be
referred to such individual or entity;
Solicits clients who may allege injury from a prescription drug approved or cleared by, or
which is the subject of monograph authorized by, the United States (U.S.) Food and Drug
Administration (FDA) and fails to clearly and conspicuously disclose, “do not stop taking a
prescribed medication without first consulting your doctor,” and “discontinuing a prescribed
medication without your doctor’s advice can result in injury or death;”
34 HIPAA Journal, What are the penalties for HIPAA Violations?, https://www.hipaajournal.com/what-are-the-penalties-for-hipaa-
violations-7096/ (last visited Jan. 21, 2022).
35
Id.
36
Id.
37
A “person” includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts,
syndicates, fiduciaries, corporations, and all other groups or combinations. See s. 1.01(3), F.S.
BILL: SB 1762 Page 7
Solicits clients who may allege injury from a prescription drug or medical device approved
or cleared by, or which is the subject of monograph authorized by, the U.S. FDA and fails to
clearly and conspicuously disclose that the drug or medical device remains approved by the
U.S. FDA, unless the product is recalled or withdrawn; and
Fails to present a written disclosure that is clearly legible and, if televised or displayed
electronically, is displayed for sufficient time to enable the viewer to easily see and fully read
the disclosure, or fails to present a spoken disclosure that is plainly audible and clearly
intelligible.
The bill provides the following definitions:
“Client” means a prospective customer, client, or patron of nonmedical professional services;
“Nonmedical solicitation” means a paid solicitation for nonmedical professional services
which contains information about a drug38 or device39 and which is directed to the public
through television, radio, the Internet, a newspaper or other periodical, an outdoor advertising
sign, or another written, electronic, or recorded communication;
“Person” means individuals, children, firms, associations, joint adventures, partnerships,
estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or
combinations;40 and
“Solicit” means to offer to provide professional services by written, recorded, or electronic
communication or by in-person, telephone, or real-time electronic contact.
The bill creates s. 877.025, F.S., which is effective October 1, 2022, and provides that a person
who is soliciting professional services may not use, cause to be used, obtain, sell, transfer, or
disclose to another person an individual’s protected health information,41 without the individual’s
written authorization.
The bill establishes the following:
A person who violates s. 877.025(2), F.S., commits a deceptive and unfair trade practice;
38
A “drug” is defined as recognized in the current edition of the United States Pharmacopoeia and National Formulary,
official Homeopathic Pharmacopoeia of the United States, or any supplement to any of those publications, which is intended
for use in the diagnosis, cure, mitigation, treatment, therapy, or prevention of disease in humans or other animals, intended to
affect the structure or any function of the body of humans or other animals, or intended for use as a component of any of the
aforementioned articles, and includes active pharmaceutical ingredients, but does not include devices or their nondrug
components, parts, or accessories. See s. 499.003(17), F.S.
39
A “device” is defined as any instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other
similar or related article, including its components, parts, or accessories, which is recognized in the current edition of the
United States Pharmacopoeia and National Formulary, or any supplement thereof, intended for use in the diagnosis, cure,
mitigation, treatment, therapy, or prevention of disease in humans or other animals, or intended to affect the structure or any
function of the body of humans or other animals, and that does not achieve any of its principal intended purposes through
chemical action within or on the body of humans or other animals and which is not dependent upon being metabolized for the
achievement of any of its principal intended purposes. See s. 499.003(15), F.S.
40
See s. 1.01(3), F.S.
41
“Protected health information” means individually identifiable health information that is transmitted by electronic media,
maintained in electronic media, or transmitted or maintained in any other form or medium, but excludes individually
identifiable health information in education records covered by the Family Educational Rights and Privacy Act, in records
described at 20 U.S.C. 1232g(a)(4)(B)(iv), in employment records held by a covered entity in its role as employer, and
regarding a person who has been deceased for more the 50 years. See 45 C.F.R. s. 160.103.
BILL: SB 1762 Page 8
A person who willfully and knowingly violates s. 877.025(2), F.S., commits a misdemeanor
of the first degree;42 and
A person who willfully and knowingly violates s. 877.025(2), F.S., with intent to sell,
transfer, or use protected health information for financial gain commits a felony of the
second degree.43
The bill provides that s. 877.025, F.S., does not apply to the disclosure or use of protected health
information to an attorney or by an attorney for use in a judicial or administrative proceeding, or
any other use or disclosure otherwise authorized or required by law.
Except as otherwise provided, the bill takes effect July 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
The bill creates new criminal offenses relating to the unlawful use of protected health
information. Criminal laws are exempt from the requirements of Art. VII, s. 18(d) of the
Florida Constitution, relating to unfunded mandates.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, the
Supreme Court held that commercial speech does receive protection under the First
Amendment.44 The Court based its opinion on the public’s right to receive a free flow of
commercial information.45 Although commercial speech does receive protection, it is
below the protection provided to completely protected speech, and states retain the ability
to regulate commercial speech that is inherently misleading or that has proven to be
misleading in practice.46
42
A misdemeanor of the first degree is punishable by a definite term of imprisonment not to exceed 1 year and a fine not to
exceed $1,000. See ss. 775.082 and 775.083, F.S.
43
The bill provides that the term of imprisonment may not exceed 10 years and the fine must be more than $10,000 but may
not exceed $250,000. See ss. 755.082, 775.083, and 775.084, F.S.
44
See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 96 S. Ct. 1817 (1976).
45
Id.
46
See In re R.M.J., 102 S. Ct. 929 (1982).
BILL: SB 1762 Page 9
In Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York, the
Supreme Court established a three-part test for analyzing the limitations of advertising
regulations.47 Under the Central Hudson test, a state must show that any commercial
speech regulation aimed at regulating “non-misleading” commercial speech is in service
of a substantial state interest, directly advances that interest, and is no more extensive
than necessary to serve that interest.48 Although commercial speech regulations must
meet the Central Hudson test, in Bates v. State Bar of Arizona, the Supreme Court held
that reasonable time, place, and manner restrictions on advertising are authorized if the
content or subject matter is not regulated.49
In May of 2021, the U.S. District Court for the Northern District of West Virginia ruled
that a West Virginia law50 restricting advertising by lawyers seeking clients who have
been harmed by drugs or medical devices cannot be enforced because it violates the First
Amendment.51 The court found that the state of West Virginia had the burden to justify
the advertising restrictions because the restrictions are content and speaker based, which
require a strict scrutiny analysis.52 The holding indicates that the advertising restricted by
the law is not misleading, and the state has not shown it is necessary to protect the public.
Additionally, the opinion states that West Virginia did not show it has tried less-
restrictive alternatives.53 The case is currently pending before the United States Court of
Appeals for the Fourth Circuit.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
The Criminal Justice Impact Conference, which provides the final, official estimate of the
prison bed impact, if any, of legislation, has not yet reviewed the bill. However, since the
bill creates a new second degree felony, it will likely have a positive indeterminate (i.e.,
unquantifiable increase) prison bed impact on the Department of Corrections. The bill
47
See Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York, 100 S. Ct. 2343 (1980).
48
Id.
49
See Bates v. State Bar of Arizona, 97 S. Ct. 2691 (1977).
50
See W.Va. Code § 47-28-1.
51
See Recht v. Morrisey, No. 5:20-cv-90 (N.D. W.Va., 2021).
52
Id. The strict scrutiny standard requires the government to show that the law is narrowly written to serve compelling state
interests, is justified without reference to the speech’s content, leaves open alternative channels of communication, and there
is no less restrictive alternative that would serve the state’s interest.
53
Id.
BILL: SB 1762 Page 10
also creates a new misdemeanor, which will likely have a positive indeterminate (i.e.,
unquantifiable increase) jail bed impact on counties.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
The bill creates the following sections of the Florida Statutes: 501.20791 and 877.025.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2022 SB 1762 Florida Senate - 2022 SB 1762
By Senator Brandes
24-00556-22 20221762__ 24-00556-22 20221762__
1 A bill to be entitled 30 (a) “Client” means a prospective customer, client, or
2 An act relating to the solicitation of nonmedical 31 patron of nonmedical professional services.
3 services; creating s. 501.20791, F.S.; defining terms; 32 (b) “Nonmedical solicitation” means a paid solicitation for
4 providing that a person who submits or sponsors a 33 nonmedical professional services which contains information
5 nonmedical solicitation that contains certain 34 about a drug or device as defined in s. 499.003 and which is
6 terminology or fails to include specified disclosures 35 directed to the public through television; radio; the Internet,
7 commits a deceptive and unfair trade practice, subject 36 including a domain name; a newspaper or other periodical; an
8 to the penalties and remedies of the Florida Deceptive 37 outdoor advertising sign; or another written, electronic, or
9 and Unfair Trade Practices Act; creating s. 877.025, 38 recorded communication.
10 F.S.; defining terms; prohibiting the unauthorized 39 (c) “Person” has the same meaning as in s. 1.01(3).
11 use, sale, transfer, or disclosure of protected health 40 (2) A person who submits or approves the submittal of a
12 information for the purpose of soliciting professional 41 nonmedical solicitation for publication, broadcast, or
13 services; providing that a person who willfully and 42 dissemination, or who pays for or otherwise sponsors a
14 knowingly violates such prohibition commits a 43 nonmedical solicitation, commits a deceptive and unfair trade
15 deceptive and unfair trade practice, subject to the 44 practice under this part if the solicitation, once published,
16 penalties and remedies of the Florida Deceptive and 45 broadcast, or disseminated, does any of the following:
17 Unfair Trade Practices Act; providing criminal 46 (a) Fails to clearly and conspicuously disclose at the
18 penalties for willful and knowing violations and 47 outset of the solicitation the phrase: “This is a paid
19 enhanced criminal penalties for violations committed 48 advertisement for nonmedical services.”
20 for financial gain; providing applicability; providing 49 (b) Includes terminology implying that the advertisement is
21 effective dates. 50 a “medical alert,” “health alert,” “consumer alert,” “public
22 51 service announcement,” or similar public alert or announcement.
23 Be It Enacted by the Legislature of the State of Florida: 52 (c) Displays the logo, or a similar facsimile thereof, of a
24 53 federal or state governmental agency in a manner implying
25 Section 1. Section 501.20791, Florida Statutes, is created 54 affiliation with, or sponsorship by, a governmental agency.
26 to read: 55 (d) Includes terminology, including use of the term
27 501.20791 Nonmedical solicitation; deceptive and unfair 56 “recall” when referring to a product, implying that the product
28 trade practices.— 57 has been recalled when, in fact, the product has not been
29 (1) As used in this section, the term: 58 recalled by a governmental agency or through agreement between a
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59 manufacturer and a governmental agency. 88 intelligible.
60 (e) Fails to clearly and conspicuously disclose the sponsor 89 Section 2. Effective October 1, 2022, section 877.025,
61 of the advertisement. 90 Florida Statutes, is created to read:
62 (f) Fails to clearly and conspicuously disclose the 91 877.025 Solicitation of nonmedical services; wrongful use
63 individual or entity that will provide professional services to 92 or disclosure of protected health information.—
64 persons responding to the advertisement or how those persons 93 (1) As used in this section, the term:
65 will be referred to such individual or entity. 94 (a) “Person” has the same meaning as in s. 1.01(3).
66 (g) Solicits clients who may allege injury from a 95 (b) “Protected health information” has the same meaning as
67 prescription drug approved or cleared by, or which is the 96 provided in 45 C.F.R. s. 106.103.
68 subject of a monograph authorized by, the United States Food and 97 (c) “Solicit” means to offer to provide professional
69 Drug Administration and fails to clearly and conspicuously 98 services by written, recorded, or electronic communication or by
70 disclose the following warning: “Do not stop taking a prescribed 99 in-person, telephone, or real-time electronic contact.
71 medication without first consulting with your doctor. 100 (2) A person may not use, cause to be used, obtain, sell,
72 Discontinuing a prescribed medication without your doctor’s 101 transfer, or disclose to another person an individual’s
73 advice can result in injury or death.” 102 protected health information, without that individual’s written
74 (h) Solicits clients who may allege injury from a 103 authorization, to solicit professional services.
75 prescription drug or medical device approved or cleared by, or 104 (3)(a) A person who violates subsection (2) commits a
76 which is the subject of a monograph authorized by, the United 105 deceptive and unfair trade practice subject to the penalties and
77 States Food and Drug Administration and fails to clearly and 106 remedies provided in part II of chapter 501.
78 conspicuously disclose that the drug or medical device remains 107 (b) A person who willfully and knowingly violates
79 approved by the United States Food and Drug Administration, 108 subsection (2) commits a misdemeanor of the first degree,
80 unless the product is recalled or withdrawn. 109 punishable as provided in s. 775.082 or s. 775.083.
81 (i) Fails to present any disclosure required by this 110 (c) A person who willfully and knowingly violates
82 subsection such that: 111 subsection (2) with intent to sell, transfer, or use protected
83 1. A written disclosure is clearly legible and, if 112 health information for financial gain commits a felony of the
84 televised or displayed electronically, is displayed for 113 second degree, punishable as provided in s. 775.082, s. 775.083,
85 sufficient time to enable the viewer to easily see and fully 114 or s. 775.084, except that the term of imprisonment may not
86 read the disclosure. 115 exceed 10 years and the fine must be more than $10,000 but may
87 2. A spoken disclosure is plainly audible and clearly 116 not exceed $250,000.
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Florida Senate - 2022 SB 1762
24-00556-22 20221762__
117 (4) This section does not apply to the disclosure of
118 protected health information to an attorney, or the attorney’s
119 use of such protected health information, in any judicial or
120 administrative proceeding or any other use or disclosure
121 otherwise authorized or required by law.
122 Section 3. Except as otherwise expressly provided in this
123 act, this act shall take effect July 1, 2022.
Page 5 of 5
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THE FLORIDA SENATE
COMMITTEES:
Tallahassee, Florida 32399-1100 Banking and Insurance, Chair
Agriculture
Appropriations Subcommittee on Agriculture,
Environment, and General Government
Appropriations Subcommittee on Transportation,
Tourism, and Economic Development
Judiciary
Rules
JOINT COMMITTEE:
Joint Legislative Auditing Committee
SENATOR JIM BOYD
21st District
January 12, 2022
Senator Ed Hooper
404 South Monroe Street
310 Knott Building
Tallahassee, FL 32399
Dear Chairman Hooper:
I respectfully request Senate Bill 1800: Broadband Infrastructure and SB 1802: Broadband Pole
Replacement Trust Fund, be scheduled for a hearing in the Committee on Commerce and
Tourism at your earliest convenience.
If I may be of assistance to you on this or any other matter, please do not hesitate to contact me.
Thank you for your consideration of this matter.
Best regards,
Jim Boyd
cc: Todd McKay
Kathryn Vigrass
REPLY TO:
717 Manatee Avenue West, Bradenton, Florida 34205 (941) 742-6445
312 Senate Building, 404 South Monroe Street, Tallahassee, Florida 32399-1100 (850) 487-5021
Senate’s Website: www.flsenate.gov
WILTON SIMPSON AARON BEAN
President of the Senate President Pro Tempore
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: CS/SB 1800
INTRODUCER: Commerce and Tourism Committee and Senator Boyd
SUBJECT: Broadband Infrastructure
DATE: January 25, 2022 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Harmsen McKay CM Fav/CS
2. ATD
3. AP
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1800 creates the Broadband Pole Replacement Program, to be administered by the Office
of Broadband (Office) within the Department of Economic Opportunity (Department). The
Program will reimburse eligible broadband Internet service providers for their costs incurred for
the removal and replacement of existing utility poles in areas of Florida that are unserved by
broadband Internet service.
Reimbursements under the program are limited to 50 percent of the broadband Internet service
provider’s eligible pole replacement costs, or $5,000—whichever is less, in addition to their
administrative costs related to the preparation and submission of the application for
reimbursement.
The bill directs the Secretary of the Department to apply for $100 million in federal funding from
the Coronavirus Capital Projects Fund, and directs any such funds received to be placed into the
Broadband Pole Replacement Trust Fund, which is created by linked bill, SB 1802.
For the 2022-2023 fiscal year, the bill appropriates $400 million in nonrecurring funds from the
General Revenue Fund to the Department for the purpose of administering the Broadband
Opportunity Program established in s. 288.9962, F.S.
CS/SB 1800 takes effect upon becoming law if SB 1802, or similar legislation, is adopted in the
same legislative session or an extension thereof and becomes law.
BILL: CS/SB 1800 Page 2
II. Present Situation:
Broadband Internet Deployment
Fixed and mobile broadband Internet services provide access to numerous employment,
education, entertainment, and health care opportunities.1 Access to a sufficient internet
connection has only grown more important during the COVID-19 pandemic, which requires
many Americans to connect to their family and friends, schooling, work, and even medical
appointments over the internet.2
Broadband internet is a high speed internet that is faster than dial-up access and is always on; in
2015, the Federal Communications Commission (FCC) defined broadband as 25/3 megabits per
second (Mbps), i.e., 25 Mbps (download rate) and 3 Mbps (upload rate).3 Consumers can receive
Broadband internet through several different technologies, including a digital subscriber line
(DSL), a cable modem, fiber, wireless, satellite, and broadband over power lines.4
While Florida’s urban areas are served at a fixed broadband coverage rate of 98 percent, its rural
areas are served at a rate of 78.6 percent.5 This disparity is caused primarily by high per-unit
construction costs required to build broadband infrastructure across larger swaths of rural
geographic areas.6 One key factor in deploying broadband infrastructure is access to utility poles,
upon which broadband providers affix their infrastructure.7 Often, broadband providers who seek
to expand their infrastructure are met with denied or delayed utility pole access, or are asked to
pay an excessive fee for the attachment, or even replacement of the entire pole.8
1
U.S. Federal Communications Commission (FCC), 2018 Broadband Deployment Report, at 1 (Feb. 2, 2018), available at
https://docs.fcc.gov/public/attachments/FCC-18-10A1.pdf (last visited Jan. 21, 2022).
2
FCC, Emergency Broadband Benefit Report and Order, at 2-3 (Feb. 26, 2021), available at
https://docs.fcc.gov/public/attachments/FCC-21-29A1.pdf (last visited Jan. 21, 2022).
3
CRS, State Broadband Initiatives: Selected State and Local Approaches as Potential Models for Federal Initiatives to
Address the Digital Divide, at 2-3 (Apr. 6, 2020), available at https://crsreports.congress.gov/product/pdf/R/R46307 (last
visited Jan. 21, 2022).
4
CRS, Congressional Research Service (CRS), Broadband Internet Access and the Digital Divide: Federal Assistance
Programs, at 1 (Oct. 25, 2019), available at https://fas.org/sgp/crs/misc/RL30719.pdf (last visited Jan. 21, 2022).
5
FCC, 2021 Broadband Deployment Report, at 58 (Jan. 19, 2021), available at https://docs.fcc.gov/public/attachments/FCC-
21-18A1.pdf (last visited Jan. 21, 2022). For purposes of this data, “fixed broadband services” are measured at 25 megabits
per second downstream and 3 megabits per second upstream.
6
National Telecommunications and Information Administration, American Broadband Initiative, Milestones Report, at 11
(Feb. 13, 2019), available at https://www.ntia.doc.gov/report/2019/american-broadband-initiative-milestones-report (last
visited Jan. 21, 2022). See also CRS, Broadband Internet Access and the Digital Divide: Federal Assistance Programs, supra
note 4 at 7.
7
Kristian Stout, Ben Sperry, International Center for Law and Economics, Issue Brief: Pole Attachments and Broadband
Build-out: The Case for Reform, 3 (Jul. 2021), https://laweconcenter.org/wp-content/uploads/2021/07/Pole-Attachment-
Issue-Brief.pdf (last visited Jan. 21, 2022) (citing Petition of NCTA for Expedited Declaratory Ruling, In the Matter of
Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, WC Docket No. 17-84
(Jul. 16, 2020), at 5-9, https://www.ncta.com/sites/default/files/2020-07/071620_17-
84_NCTA_Petition_for_Declaratory_Ruling.pdf.)
8
R Street, Pole Replacement Explainer (Apr. 2021), https://www.rstreet.org/wp-content/uploads/2021/04/explainer23.pdf
(last visited Jan. 21, 2022). See also, Edward Lopez and Patricia Kravtin, Connect the Future, Advancing Pole Attachment
Policies to Accelerate National Broadband Buildout, 3, https://connectthefuture.com/wp-
content/uploads/2021/11/Advancing-Pole-Attachment-Policies-To-Accelerate-National-Broadband-Buildout-National-
Report.pdf (last visited Jan. 21, 2022).
BILL: CS/SB 1800 Page 3
Communities that lack broadband access can have difficulty attracting new capital investment.9
Additionally, data indicates that low-income households disproportionately lack access to
broadband Internet service, which puts children in those households at risk of falling behind.10
Federal Broadband Initiatives
Department of Commerce Coronavirus Capital Projects Fund
The American Rescue Plan11 allocated $10 billion to eligible governments to carry out capital
projects to meet critical needs, with an emphasis on broadband infrastructure.12 Each state is
eligible for a fixed amount of $100 million, and an additional allocation based on the state’s
population, proportion of its population that lives in rural areas, and proportion of individuals
who receive a household income below 150 percent of the poverty line.13
Eligible states must submit both an application (due date passed on December 27, 2021) and a
grant plan (due September 24, 2022).14 Capital Projects Fund Recipients may pass the funds on
to subrecipients, such as other levels of government, non-profits, or private entities.
Presumptively eligible projects under the program include the construction and deployment of
broadband infrastructure that is designed to deliver service that reliably meets or exceeds
symmetrical speeds of 100 Mbps, or if impracticable, speeds of 100 Mbps downstream and 20
Mbps upstream.15 Projects that may be eligible on a case-by-case review include investments in
capital assets, such as buildings, towers, digital devices and equipment, fiber-optic lines, and
broadband networks.16
FCC Digital Opportunity Data Collection Program
The FCC collects and monitors data on broadband deployment in order to identify underserved
and unserved localities in the United States.17 In August 2019, the FCC adopted the Digital
Opportunity Data Collection Program, which modernized the collection of broadband
deployment data by creating granular coverage maps, as opposed to census tract maps, and by
implementing a process to accept public data to confirm the maps’ accuracy.18 In March 2020,
9
CRS, Broadband Internet Access and the Digital Divide: Federal Assistance Programs, supra note 4 at 8.
10
New American Economy Research Fund, Back to School: A Look at the Internet Access Gap (Aug. 6, 2020), available at
https://research.newamericaneconomy.org/report/internet-access-covid-19/ (last visited Jan. 21, 2022).
11
Pub. L. 117-2 (117th Congress) (H.R. 1319).
12
U.S. Dep’t. of Treasury, Capital Projects Fund, https://home.treasury.gov/policy-issues/coronavirus/assistance-for-state-
local-and-tribal-governments/capital-projects-fund (last visited Jan. 21, 2022).
13
U.S. Dep’t. of Treasury, Coronavirus Capital Projects Fund: Allocations Methodology for States, Territories, and Freely
Associated States (Aug. 2021), https://home.treasury.gov/system/files/136/Allocations-Methodology-States-Territories-
Freely-Associated-States.pdf (last visited Jan. 21, 2022).
14
Id. See also, U.S. Dep’t. of Treasury, Guidance for the Coronavirus Capital Projects Fund for States, Territories, and
Freely Associated States, 1, 14 (Sept. 2021), https://home.treasury.gov/system/files/136/Capital-Projects-Fund-Guidance-
States-Territories-and-Freely-Associated-States.pdf (last visited Jan. 21, 2022).
15
U.S. Dep’t. of Treasury, Guidance for the Coronavirus Capital Projects Fund for States, Territories, and Freely Associated
States, supra note 14 at 3.
16
Id. at 7.
17
FCC, Establishing the Digital Opportunity Data Collection, at 1-2 (Jan. 19, 2021), available at
https://www.fcc.gov/document/fcc-takes-next-step-collect-more-precise-broadband-mapping-data (last visited Jan. 21, 2022).
18
Id. at 3.
BILL: CS/SB 1800 Page 4
Congress ratified the FCC’s Data Collection Program with passage of the Broadband Data Act,
which requires the FCC to establish a semiannual collection of geographically granular
broadband coverage data to use to create coverage maps.19 Congress allocated $65 million to the
FCC to achieve this mapping project in December 2020.20
To create these geographic service maps, the FCC collects information from service providers
according to specific reporting standards. The service providers must report their service
coverage areas, including where their services were available to residences or businesses, and the
speed and latency at which their services are delivered.21 The FCC also set up a website to allow
for public input regarding consumers’ experiences with broadband.22 The FCC is in the process
of updating its broadband maps with more detailed and precise information.23
FCC’s Rural Digital Opportunity Fund24
In January 2020, the FCC established the Rural Digital Opportunity Fund to fund the deployment
of broadband networks in rural America. The first phase of the fund began in 2020 and made $16
billion available to target census blocks that are wholly unserved by fixed broadband speeds of at
least 25 Mbps downstream and 3 Mbps upstream (25/3 Mbps).25 Florida entities received over
$190 million (to be distributed over the next 10 years) in this first round of funding.26
Phase II of the Fund will target underserved localities, as identified by the FCC’s Digital
Opportunity Data Collection Program.27 Using this more precise data, the second phase of FCC
grants will make available at least $4.4 billion to target geographic areas where some locations
lack access to 25/3 Mbps broadband.28
U.S. Department of Agriculture Programs
The U.S. Department of Agriculture (USDA) has several rural utilities programs to provide a
variety of loans and grants to build and expand broadband networks.29 The ReConnect Program
offers federal loans, grants, and loan/grant combinations to facilitate broadband deployment to
rural areas without access to sufficient broadband service. Eligible entities include cooperatives
and nonprofits, for-profit companies, and state and local governments and their agencies and
political subdivisions. Applicants for a grant or a loan/grant combination under the ReConnect
19
47 U.S.C. 642(a)(1)(A) and (a)(2) (2020).
20
Marguerite Reardon, CNET, FCC Chair Rosenworcel Launches Broadband Mapping Taskforce (Feb. 17, 2021), available
at https://www.cnet.com/news/fcc-chair-rosenworcel-launches-broadband-mapping-task-force/ (last visited Jan. 21, 2022).
21
FCC, Establishing the Digital Opportunity Data Collection, supra note 17 at 5, 8-16.
22
FCC, Broadband Data Collection Consumer Information, https://www.fcc.gov/BroadbandData/consumers (last visited Jan.
21, 2022).
23
FCC, Broadband Data Collection (Dec. 15, 2021), https://www.fcc.gov/BroadbandData (last visited Jan. 21, 2022).
24
FCC, Auction 904: Rural Digital Opportunity Fund: Fact Sheet, https://www.fcc.gov/auction/904/factsheet (last visited
Jan. 21, 2022).
25
FCC, FCC Launches $20 Billion Rural Digital Opportunity Fund (Feb. 7, 2020), available at
https://www.fcc.gov/document/fcc-launches-20-billion-rural-digital-opportunity-fund-0 (last visited Jan. 21, 2022).
26
Federal Communications Commission, Auction 904 Winning Bidders: Attachment A, available at
https://www.fcc.gov/document/auction-904-winning-bidders (last visited Jan. 21, 2022).
27
See, FCC, FCC Launches $20 Billion Rural Digital Opportunity Fund, supra note 25 at 3.
28
FCC, FCC Launches $20 Billion Rural Digital Opportunity Fund, supra note 25 at 4.
29
USDA, Telecom Programs, available at https://www.rd.usda.gov/programs-services/all-programs/telecom-programs (last
visited Jan. 21, 2022).
BILL: CS/SB 1800 Page 5
Program must submit a scoring sheet by which USDA may analyze nine separate evaluation
criteria to score the application. One of the evaluation criteria is whether the proposed project is
in a state with a broadband plan that has been updated within the previous 5 years.30
Miscellaneous Federal Broadband Initiatives
Multiple federal assets to assist with the expansion of broadband are available, for example:31
The U.S. Department of Housing and Urban Development32 offers block grants that can
support broadband infrastructure;
The Department of the Interior launched a mapping tool to allow service providers to locate
federal property available for infrastructure development;33 and
The National Telecommunications and Information Administration (NTIA) within the U.S.
Department of Commerce is working to improve coordination between federal programs that
fund broadband and statewide efforts.34
The COVID-19 relief bill passed by Congress in December 202035 included the following
funding to expand broadband Internet access for students, families, and unemployed workers:36
$300 million for rural broadband;37
$250 million for the FCC’s telehealth program;38
$285 million to fund a pilot program to assist with broadband issues at historically Black
colleges and universities;39
30
See USDA, ReConnect Loan and Grant Program, available at https://www.usda.gov/reconnect#anchor1 (last visited Jan.
21, 2022).
31
See generally, National Telecommunications and Information Administration (NTIA), American Broadband Initiative,
Progress Report (June 2020), available at https://www.ntia.doc.gov/files/ntia/publications/abi_progress_report_june2020.pdf
(last Jan. 21, 2022).
32
U.S. Department of Housing and Urban Development, State CDBG Program Broadband Infrastructure FAQs
(Jan. 7, 2016), available at https://files.hudexchange.info/resources/documents/State-CDBG-Program-Broadband-
Infrastructure-FAQs.pdf (last visited Jan. 21, 2022).
33
U.S. Department of Interior, Supporting Broadband Tower Facilities in Rural America on Federal Properties Managed at
Interior, available at https://www.doi.gov/broadband (last visited Jan. 21, 2022).
34
Broadband USA, State Broadband Leaders Network (Dec. 19, 2018), available at https://broadbandusa.ntia.doc.gov/ntia-
resources/state-broadband-leaders-network-sbln (last visited Jan. 21, 2022).
35
Consolidated Appropriations Act of 2021, H.R. 133, 116 th Cong. (2021).
36
NCSL, COVID-19 Economic Relief Bill: Broadband, (Jan. 4, 2021) https://www.ncsl.org/ncsl-in-dc/publications-and-
resources/covid-19-economic-relief-bill-stimulus.aspx#:~:text=Erlinda%20Doherty-
,Overview,agency%20operations%20through%20September%202021. (last visited Jan. 21, 2022).
37
See generally, NTIA, Overview of Consolidated Appropriations Act, 2021: Broadband Infrastructure Deployment Grants,
available at https://broadbandusa.ntia.doc.gov/ntia-common-content/overview-consolidated-appropriations-act-2021 (last
visited Jan. 21, 2022). These grants will be available to support infrastructure for the deployment of fixed broadband service
in a census block with at least one household or business that does not have access to internet at 25/3Mbps or higher.
38
FCC, COVID-19 Telehealth Program (Feb. 9, 2021), available at https://www.fcc.gov/covid-19-telehealth-program (last
visited Jan. 21, 2022).
39
See generally, NTIA, Minority Broadband Initiative, available at https://www.ntia.doc.gov/category/minority-broadband-
initiative (last visited Jan. 21, 2022).
BILL: CS/SB 1800 Page 6
$1.9 billion for “rip and replace” efforts related to Huawei and ZTE equipment in U.S.
networks;40 and
$1 billion in grants for tribal broadband programs.41
The American Rescue Plan, signed into law on March 11, 2021, includes multiple appropriations
that can be used for broadband infrastructure, such as $10 billion for the Capital Projects Fund to
provide grants to states for the costs of capital projects, like broadband infrastructure and $130.2
billion for Community Development Block Grants that can be used for community development
projects, including broadband infrastructure.42
Additionally, the Infrastructure Investment and Jobs Act,43 signed into law on November 15,
2021, contains $64 billion in funding for broadband expansion and access. The law:44
Establishes the Broadband Equity, Access, and Development Program to be administered by
the NTIA to states through matching grants;
Allocates $2.75 billion to the Digital Equity Act Competitive Grant Programs administered
by the Department of Commerce;
Invests $2 billion in the Tribal Broadband Connectivity Program; and
Funds the Middle Mile Grants program, administered by the NTIA with $1 billion, especially
to support construction, improvement, or acquisition of broadband infrastructure.
Florida’s Office of Broadband
In 2020 the Legislature created the Florida Office of Broadband (Office) within the Department
of Economic Opportunity (DEO).45 The Office is tasked with developing, marketing, and
promoting broadband Internet service in the state.46
Specifically, the Office must:47
Create a strategic plan for increasing the availability and use of broadband Internet service in
Florida which must incorporate federal broadband initiatives and also include a process to
40
B. Braverman, M. Browne, and J. Mark, Let Her Rip! FCC Adopts Remove-and-Replace Rules (Jan. 15, 2021), available at
https://www.dwt.com/insights/2021/01/fcc-huawei-zte-rip-and-replace-rules (last visited Jan. 21, 2022). See also, FCC,
Second Report and Order in re: Protecting Against National Security Threats to the Communications Supply Chain Through
FCC Programs (Dec. 10, 2020), available at https://docs.fcc.gov/public/attachments/FCC-20-176A1.pdf (last visited Jan. 21,
2022).
41
See generally, NTIA, NTIA Announces Tribal Consultations on New Program to Increase Broadband Access Across
Indian Country (Feb. 5, 2021), available at https://www.ntia.gov/blog/2021/ntia-announces-tribal-consultations-new-
program-increase-broadband-access-across-indian (last visited Jan. 21, 2022).
42
Pub. L. No. 112-2, ss. 603 and 604 (117th Congress) (H.R. 1319). U.S. Treasury, FACT SHEET: The American Rescue
Plan Will Deliver Immediate Economic Relief to Families, https://home.treasury.gov/news/press-releases/jy0069 (last visited
Jan. 21, 2022).
43
Pub. L. No. 117-58 (117th Congress) (H.R. 3684). See also, Congressional Research Service, The Infrastructure Investment
and Jobs Act (P.L. 117-58): Summary of the Broadband Provisions in Division F (Nov. 16, 2021),
https://crsreports.congress.gov/product/pdf/R/R46967 (last visited Jan. 21, 2022).
44
NTIA, Infrastructure Investment and Jobs Act Overview, https://www.ntia.doc.gov/category/grants (last visited Jan. 21,
2022).
45
Chapter 2020-26, Laws of Fla.
46
Section 288.9961(4), F.S. See also, Florida Department of Economic Opportunity, Office of Broadband, About Us,
https://floridajobs.org/community-planning-and-development/broadband/office-of-broadband (last visited Jan. 21, 2022).
47
Section 288.9961(4), F.S.
BILL: CS/SB 1800 Page 7
review and verify public input regarding transmission speeds and availability of broadband
Internet service throughout the state;
Build local technology planning teams representing, among others, libraries, schools,
colleges and universities, local health care providers, private businesses, community
organizations, economic development organizations, local governments, tourism, parks and
recreation, and agriculture in order to identify needs and resources to reduce barriers to the
deployment of broadband Internet services;
Encourage the use of broadband Internet service, especially in rural, unserved, and
underserved48 areas of the state through grant programs;
Monitor, participate in, and provide input in proceedings of the FCC and other federal
agencies related to the geographic availability and deployment of broadband Internet service
as necessary to ensure that Florida’s rural, unserved, and underserved areas are best
positioned to benefit from federal and state broadband deployment programs; and
Administer Florida’s Broadband Opportunity Program49.
The DEO may apply for and accept federal grant funds, enter into necessary or useful contracts,
and establish any committee or workgroup to further the above goals. Additionally, the DEO has
rulemaking authority to implement sections 288.9961-288.9963, F.S., relating to the Office.50
Broadband Opportunity Program51
The Office administers the Broadband Opportunity grant program to expand broadband Internet
service to unserved areas of Florida. Grant funds may not be used to provide broadband Internet
service to a geographic area where broadband Internet is already deployed by at least one
provider.
The Office has not received funding for the program, and no grants have been made available.
Regulation of Pole Attachments
Utility poles may be installed and owned by different kinds of utilities,52 such as electrical or
telecommunications providers.53 “Pole attachment” is the process by which communications
companies allocate infrastructure on utility poles. Different vertical portions of utility poles are
divided for specific uses, including electrical power, telephone, cable television, broadband
48
Section 288.9961(2)(f), F.S., defines the term “underserved” to mean a geographic area of this state in which there is no
provider of broadband Internet service that offers a connection to the Internet with a capacity for transmission at a consistent
speed of at least 100 Mbps downstream and at least 10 Mbps upstream. Section 288.9961(2)(g), F.S., defines the term
“unserved” as a geographic area in which there is no broadband Internet service provider.
49
The Broadband Opportunity Program is established in s. 288.9962, F.S., to award grants to those who seek to expand
broadband Internet service to unserved areas of Florida.
50
Section 288.9961(5), F.S.
51
Section 288.9962, F.S.
52
47 U.S.C. § 224(a)(1) (1996), defines ‘‘utility’’ as “any person who is a local exchange carrier or an electric, gas, water,
steam, or other public utility, and who owns or controls poles, ducts, conduits, or rights-of-way used, in whole or in part, for
any wire communications. Such term does not include any railroad, any person who is cooperatively organized, or any person
owned by the Federal Government or any State.”
53
See, Jim Saunders, NEWS SERVICE OF FLORIDA, FPL, AT&T Battle Over Utility Bills, (Aug. 1, 2019) https://www.news-
press.com/story/news/newswire/2019/08/01/florida-power-light-fpl-at-t-battle-over-utility-bills/1887655001/ (last visited Jan.
21, 2022).
BILL: CS/SB 1800 Page 8
Internet, and wireless service.54 The owning entity can charge others to attach their services to its
pole. This sharing of the pole resource benefits the public by minimizing “unnecessary and
costly duplication of plant for all pole users.”55 When a new attacher seeks access to a pole, it is
necessary to evaluate the safety and ability to add the attachment. In many cases, existing
attachments must be moved to make room for the new attachment. In some cases, a larger pole is
necessary to accommodate a new attachment.56
Federal law recognizes state and local government authority to manage the public right-of-way
(ROW) on utility poles and to require fair and reasonable compensation from telecommunication
providers, on a competitively neutral and nondiscriminatory basis, for the use of such ROW.57
Congress began regulating pole attachments58 in 1978.59 The Telecommunications Act (Act) of
199660 added provisions making access to utility poles mandatory for telecommunications
services providers,61 and providing for nondiscriminatory access, unless there is insufficient
capacity and reasons of safety, reliability and generally applicable engineering purposes. 62
Municipalities and rural electric cooperative utilities are exempt from the provisions of 47
U.S.C. s. 224.63
A state, however, can assume regulation of pole attachment through a process known as “reverse
preemption.” This requires a state to expressly assert jurisdiction through state legislation,
followed by certification to the FCC that “in so regulating such rates, terms, and conditions, the
state has the authority to consider and does consider the interests of the subscribers of the
services offered via such attachments, as well as the interests of the consumers of the utility
services.”64 As of March 19, 2020, 22 states and the District of Columbia have reverse
preemption.65 In 2021, the Florida Legislature passed SB 1944, which transfers this regulatory
authority to the Florida PSC;66 the PSC is still in the process of adopting rules to complete this
transfer.67
54
Florida Public Service Commission, What’s on a Utility Pole?, http://www.psc.state.fl.us/ConsumerAssistance/UtilityPole
(last visited Jan. 21, 2022).
55
S. REP. NO. 95-580, at 13 (1977), as reprinted in 1978 U.S.C.C.A.N. 109, 121.
56
FCC, Third Report and Order and Declaratory Ruling In the Matter of Accelerating Wireline Broadband Deployment by
Removing Barriers to Infrastructure Investment, FCC-CIRC 1808-03 (2018) at 4-5.
57
47 U.S.C. § 253(c).
58
47 U.S.C. § 224(a)(4), defines “pole attachment” as “any attachment by a cable television system or provider or
telecommunications service to a pole, duct, conduit, or right-of-way owned or controlled by a utility.”
59
The Pole Attachment Act of 1978 granted utility pole access to cable companies and was designed to promote utility
competition and service to the public. Communications Act Amendments of 1978, Pub. L. No. 950234 (Feb. 21, 1978).
60
Telecommunications Act of 1996, Pub. LA. No. 104-104, 110 Stat. 56 (1996).
61
The term “telecommunications” means the transmission, between or among points specified by the user, of information of
the user’s choosing, without change in the form or content of the information as sent and received. 47 U.S.C. § 153(50).
62
Pub. L. No. 104-104, codified at 47 U.S.C. s. 224(f).
63
47 U.S.C. s. 224(a)(1).
64
47 U.S.C. s. 224(c)(2).
65
FCC, Public Notice: States That Have Certified That They Regulate Pole Attachments, Mar. 19, 2020,
https://www.fcc.gov/document/states-have-certified-they-regulate-pole-attachments-2 (last visited Jan. 21, 2022).
66
Ch. 2021-191, Laws of Fla.
67
Cindy Miller, What’s Up with Pole Attachments in Florida: Energy and Telecom Players Urge Different Approaches (Sep.
17, 2021), https://energycentral.com/c/um/whats-pole-attachments-florida-energy-and-telecom-players-urge-different (last
visited Jan. 21, 2022).
BILL: CS/SB 1800 Page 9
In April 2011, the FCC approved a pole attachment order, which established a revised
telecommunications formula and included make-ready68 provisions which provided a benchmark
for pole attachment rates and access.69
In September 2018, the FCC issued an order70 which preempted state and local laws and
agreements, including those related to pole attachments, to remove regulatory barriers that would
inhibit the deployment of “small cell” infrastructure necessary to support new wireless
broadband services. The order set uniform rates and regulations for attachments on poles owned
and controlled by publicly-owned electric utilities.71 The order provided that state or local fees
charged to mobile service providers for deploying small cell sites violate federal law unless they:
Are a reasonable approximation of the state or local government’s costs;
Only factor in costs that are “objectively reasonable;” and
Are no higher than fees charged to similarly situated competitors.72
Except for small cell wireless facilities, attachments of cable and telecommunications carrier
facilities to utility poles owned by a municipal electric utility are not currently regulated at the
state or federal level.
Florida Promotional Rates for Wireline Attachment
The Legislature has provided for the promotional rate of $1 per wireline attachment per pole, per
year for any new attachment necessary to make broadband service available to an unserved or
underserved end user within a municipal electric utility service territory. This rate began July 1,
2021 and ends July 1, 2024.73
Section 288.9963, F.S., further provides that if a municipal electric utility is required to replace a
utility pole due to a broadband provider’s attachment, the municipal electric utility may require
the broadband provider to reimburse all reasonable costs attributable to the new attachment,
minus the salvage value of the pole. A utility cannot require pole replacement to accommodate
the broadband provider’s pole attachment unless it is necessary to comply with applicable
68
“Make-ready” generally refers to the modification of poles or lines or the installation of guys and anchors to accommodate
additional attachments. FCC, Implementation of the Local Competition Provisions in the Telecommunications Act of 1996,
CC Docket Nos. 96-98, 95-185, Order on Reconsideration, 14 FCC Rcd 18049, 18056 n.50 (1999).
69
FCC, In the Matter of A National Broadband Plan for Our Future (GN Docket No. 09-51) Implementation of Section 224
of the Act (WC Docket No. 07-245) Report And Order And Order On Reconsideration, FCC 11-50. (Apr. 7, 2011).
70
FCC, Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, Report and Order,
33 FCC Rcd 9088 (14), FCC-18-133. See also CRS, Overview of Legal Challenges to the FCC’s 5G Order on Small Cell
Siting (Feb. 25, 2019) The Order’s discussion of preemption begins by interpreting the Telecommunication Act’s two
relevant preemption provisions: Sections 253 and 332(c)(7). Subject to certain exceptions, these sections preempt state and
local requirements that “prohibit or have the effect of prohibiting the ability of any entity” to provide “telecommunications”
or “personal wireless services.”
71
American Public Power Association, Preserving the Municipal Exemption from Federal Pole Attachment Regulations, at 2,
https://www.publicpower.org/system/files/documents/January%202021%20-
%20Federal%20Pole%20Attachment%20Regulations.pdf (last visited Jan. 21, 2022).
72
CRS, Overview of Legal Challenges to the FCC’s 5G Order on Small Cell Siting supra, note 70, at 2-3. The order also
identifies specific fee limits that are presumptively allowed under federal law. For non-recurring fees, such as up-front
applications for small cell site installations, localities may charge up to $500, subject to certain exceptions. For recurring fees,
such as access fees, localities may charge up to $270 per year. Higher fees may be charged due to local cost variances.
73
Section 288.9963(3), F.S.
BILL: CS/SB 1800 Page 10
engineering and safety standards. Additionally, if the pole replacement is necessary to correct an
existing violation, to bring the pole into compliance with changes in applicable standards, or
because the pole is at the end of its useful life,74 the replacement cost may not be passed on to the
broadband provider.
III. Effect of Proposed Changes:
Broadband Pole Replacement Program
The bill creates the Broadband Pole Replacement Program (Program) within the Department’s
Office of Broadband. The Office will accept applications for the reimbursement of eligible pole
replacement costs, and distribute payments from the Broadband Pole Replacement Trust Fund
(Trust Fund) until the funds are exhausted.
Eligibility
Private businesses or nonprofit corporations that currently provide, or will provide, qualifying
broadband service to Florida are eligible for reimbursements under the Program. These entities
must provide, or commit to providing broadband Internet service that is capable of delivering
Internet access at speeds of at least 100 Mbps downstream and 100 Mbps upstream with a
latency at a level sufficient to allow real-time, interactive applications.75 Additionally, the
applicants’ pole replacements must occur in unserved areas76 for the purpose of attaching
facilities to provide qualifying broadband service to residences or businesses in that area.
Reimbursements
The Office must reimburse an applicant within 60 days after it receives its completed
application. The Office will reimburse under the Program according to availability of funds in
the Trust Fund. Any application that is pending when the Trust Fund is exhausted is denied, but
the applicant may reapply if funds are later added to the Trust Fund.
An application for reimbursement must include the following:
Information sufficient to establish the number and cost of eligible pole replacements;
Documentation sufficient to establish that the eligible pole replacements are completed;
The total reimbursement amount requested, and any state or federal grant funding or
accounting information required to justify the amount requested;
74
“Useful life” of a utility pole means not less than 30 years for wood utility poles, and not less than 50 years for concrete,
steel, ductile iron, and all other utility poles. Section 288.9963(5), F.S.
75
This requirement is consistent with the U.S. Dep’t. of Commerce Coronavirus Capital Projects Fund, which requires
projects to deliver service that reliably meets or exceeds symmetrical speeds of 100 Mbps , or if that is impracticable, the
project can be designed to reliably meet or exceed 100/20 Mbps speeds, and be scalable to a minimum of 100 Mbps
symmetrical download and upload speeds. U.S. Dep’t. of Treasury, Guidance for the Coronavirus Capital Projects Fund for
States, Territories, and Freely Associated States, supra note 14 at 3.
76
The bill defines an “unserved area” as a location in which (1) fixed, terrestrial, or retail wireline broadband Internet service
is unavailable at the time that the broadband service provider requests to attach its facilities to a pole in that location, and no
other person has committed to providing qualifying broadband service; or (2) the applicant is committed under the terms of a
state or federal grant to provide qualifying broadband service, provided that the availability of the grant is limited to areas
that lack access to fixed, terrestrial, or retail wireline broadband Internet service.
BILL: CS/SB 1800 Page 11
A notarized statement from an officer or agent of the applicant which certifies that the
application’s contents are true and accurate, and that the applicant will comply with
applicable law as a condition of receiving reimbursement under the Program; and
Receipts to verify the amount of eligible pole replacement costs paid by the applicant.
An eligible pole replacement cost is the actual cost paid by the applicant to perform a pole
replacement, excluding any amount that is otherwise reimbursed through another state or federal
broadband grant program or other governmental entity. Specifically, the cost may include:
The removal and disposal of the existing utility pole;
The purchase and installation of a replacement utility pole: and
The transfer of any existing facilities to the replacement utility pole.
An eligible applicant shall receive a reimbursement of (1) up to 50 percent of the total amount it
paid for eligible pole replacement costs, or $5,000, whichever is less; and (2) up to 100 percent
of its actual and reasonable administrative expenses paid to prepare and submit the application.
This reimbursement of administrative expenses cannot exceed 5 percent of the eligible pole
replacement costs that the applicant requests in its application.
If the applicant broadband Internet service provider cannot provide the information required by
the application, it may request that the pole owner that performed the pole replacement submit
the required information, including the pole replacement costs paid by the applicant. A pole
owner that submits this information on behalf of a broadband Internet service provider may
require reimbursement of its administrative expenses from the applicant.
As a condition of receiving reimbursement, the applicant must certify its compliance with s.
288.9964, F.S., and agree to refund with interest any reimbursements or portions thereof if the
Office finds that the applicant materially violated any requirement of the program.
Administrative Duties
The bill directs the Secretary of the Department to apply for $100 million in federal funding for
the Program, including funds available under the Coronavirus Capital Projects Fund. If Florida
receives any such funds, they must be deposited into the Trust Fund created by linked bill, SB
1802. If Florida receives federal funds from the Coronavirus Capital Projects Fund, then state
funds allocated to the Program must be reduced by an equal amount.
The Office must publish and update the following information on its website within 60 days after
the Trust Fund receives its first deposit of funds:
Statistics on the number of applications received, processed, and rejected by the Program;
Statistics on the value, number, and status of reimbursements provided under the Program,
including the names of pole owners and retail providers of qualifying broadband service
which received reimbursements under the Program; and
The amount of funds remaining in the Trust Fund.
The Office must further provide a report to the Governor, President of the Senate, and the
Speaker of the House of Representatives within 1 year after the Trust Fund is exhausted of its
BILL: CS/SB 1800 Page 12
funds. This report must identify and examine the deployment of broadband infrastructure and
technology facilitated by reimbursements from the program.
The bill specifically does not authorize rulemaking authority for the department, the office, or
any other agency, to administer the Program.
The Office of the Auditor General must perform an audit of the Trust Fund and its administration
for compliance with pertinent law within 1 year after funds are deposited into the Trust Fund.
Broadband Opportunity Program
For the 2022-2023 fiscal year, the bill appropriates $400 million in nonrecurring funds from the
General Revenue Fund, from payments received by the state pursuant to the Federal Coronavirus
State Fiscal Recovery Fund, to the Office of Broadband within the Department of Economic
Opportunity for the purpose of administering the Broadband Opportunity Program established in
s. 288.9962, F.S.
Effective Date
The bill takes effect upon becoming law, if SB 1802 or similar legislation is adopted in the same
legislative session or an extension thereof and also becomes law.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
BILL: CS/SB 1800 Page 13
B. Private Sector Impact:
The bill may ultimately help to provide more affordable broadband Internet service to
Florida’s communities by increasing related infrastructure. The bill will benefit eligible
providers by assisting them to expand their services.
C. Government Sector Impact:
The bill does not appropriate any funds to the Broadband Pole Replacement Program
created in the bill. It is unclear whether the Department will require additional funds or
FTE’s to administer the program. However, linked bill, SB 1802, allows funds deposited
into the Broadband Pole Replacement Trust Fund to be used to administer the Program.
VI. Technical Deficiencies:
The deadline to submit an application for the Coronavirus Capital Projects Fund was December
27, 2021. It is unclear whether the Secretary will be able to comply with the requirement in the
bill to apply for federal funds available under the Coronavirus Capital Projects Fund.
VII. Related Issues:
The Department will be limited in its administration of the Program to exclusively those
requirements established in s. 288.9964, F.S., as it is not granted rulemaking authority to enlarge
or alter the Program further. This may result in a less agile or responsive Program that will
require further Legislative action to, e.g., change its application criteria, or conduct
investigations of violations beyond the scope of the bill.
VIII. Statutes Affected:
This bill substantially amends section 288.9961 of the Florida Statutes, and creates section
288.9964 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Commerce and Tourism on January 24, 2022:
Inserts the bill number assigned to linked bill, CS/SB 1802, which creates the Broadband
Pole Replacement Program, in the contingent effective date.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2022 COMMITTEE AMENDMENT
Bill No. SB 1800
Ì240514wÎ240514
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
01/25/2022 .
.
.
.
The Committee on Commerce and Tourism (Boyd) recommended the
following:
1 Senate Amendment
2
3 Delete line 263
4 and insert:
5 if SB 1802 or similar legislation is adopted in the same
Page 1 of 1
1/20/2022 1:24:09 PM 577-02150-22
Florida Senate - 2022 SB 1800 Florida Senate - 2022 SB 1800
By Senator Boyd
21-01515C-22 20221800__ 21-01515C-22 20221800__
1 A bill to be entitled 30 to the Governor and the Legislature within a specified
2 An act relating to broadband infrastructure; amending 31 timeframe; providing that certain provisions do not
3 s. 288.9961, F.S.; revising the duties of the Florida 32 require or authorize rulemaking; providing an
4 Office of Broadband to include administering the 33 appropriation; providing a contingent effective date.
5 Broadband Pole Replacement Program; creating s. 34
6 288.9964, F.S.; providing legislative findings; 35 Be It Enacted by the Legislature of the State of Florida:
7 defining terms; establishing the Broadband Pole 36
8 Replacement Program within the office; providing 37 Section 1. Paragraph (g) is added to subsection (4) of
9 responsibilities of the office; providing eligibility 38 section 288.9961, Florida Statutes, to read:
10 requirements for reimbursement under the program; 39 288.9961 Promotion of broadband adoption; Florida Office of
11 providing that reimbursements are subject to the 40 Broadband.—
12 availability of certain funds; providing that certain 41 (4) FLORIDA OFFICE OF BROADBAND.—The Florida Office of
13 denied applicants may reapply in certain 42 Broadband is created within the Division of Community
14 circumstances; providing requirements for the program 43 Development in the department for the purpose of developing,
15 application; requiring the office to provide certain 44 marketing, and promoting broadband Internet services in this
16 reimbursements within a certain period of time; 45 state. The office, in the performance of its duties, shall do
17 authorizing an applicant to request certain 46 all of the following:
18 information from a pole owner under certain 47 (g) Administer the Broadband Pole Replacement Program
19 circumstances; requiring an applicant to meet certain 48 established in s. 288.9964.
20 conditions; requiring the Secretary of Economic 49 Section 2. Section 288.9964, Florida Statutes, is created
21 Opportunity to apply for certain federal funding for 50 to read:
22 the program; requiring that the amount of state funds 51 288.9964 Broadband Pole Replacement Program.—
23 allocated to the program be reduced by the amount of 52 (1) LEGISLATIVE FINDINGS.—The Legislature finds that a
24 certain federal funds provided to the program; 53 broadband pole replacement program administered by the Florida
25 requiring the office to publish and continually update 54 Office of Broadband is necessary to further the state’s goal of
26 certain information on its public website; requiring 55 expanding and accelerating access to broadband service in
27 an audit of the Broadband Pole Replacement Trust Fund 56 unserved areas throughout this state.
28 within a certain period of time; requiring the office 57 (2) DEFINITIONS.—As used in this section, the term:
29 to provide a report containing specified information 58 (a) “Applicant” means a private business, including a
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59 corporation, a limited liability company, a partnership, a 88 install a replacement utility pole, and to transfer any existing
60 nonprofit corporation, or any other private business entity that 89 facilities to the replacement utility pole.
61 provides or will provide qualifying broadband service in this 90 (g) “Office” means the Florida Office of Broadband.
62 state. 91 (h) “Pole” means any pole used in whole or in part for wire
63 (b) “Application” means an application made under this 92 communications or electric distribution.
64 section for an eligible pole replacement reimbursement. 93 (i) “Pole owner” means any electric utility as defined in
65 (c) “Broadband Internet service” means a service that 94 s. 366.02(2), public utility as defined in s. 366.02(1),
66 offers a connection to the Internet with a capacity for 95 communications services provider as defined in s. 366.02(5),
67 transmission at a consistent speed of at least 25 megabits per 96 cable television operator, or local exchange carrier that owns
68 second downstream and 3 megabits per second upstream. 97 or controls a pole.
69 (d) “Broadband Pole Replacement Trust Fund” means the trust 98 (j) “Program” means the Broadband Pole Replacement Program
70 fund established pursuant to s. 288.9965. 99 established under this section.
71 (e) “Eligible pole replacement” means the removal of an 100 (k) “Qualifying broadband service” means a fixed,
72 existing utility pole and its replacement with a new utility 101 terrestrial, retail wireline broadband Internet service capable
73 pole in an unserved area in order to accommodate the attachment 102 of delivering Internet access at speeds of at least 100 megabits
74 to such new utility pole of facilities used in whole or in part 103 per second both downstream and upstream with latency at a level
75 by a retail provider of qualifying broadband service for the 104 sufficient to allow real-time, interactive applications.
76 purpose of providing qualifying broadband service access to 105 (l) “Reimbursed through another state or federal broadband
77 residences or businesses in that unserved area. The term does 106 grant program” means, with respect to eligible pole replacement
78 not include the removal and replacement of an existing utility 107 costs, that an applicant paying such costs has received or is
79 pole by the owner or an affiliated company unless the removal or 108 entitled to receive reimbursement for such costs under the terms
80 replacement is performed as an accommodation to a provider of 109 of another state or federal broadband grant program for the
81 qualifying broadband services. 110 deployment of broadband facilities, whether through a specific
82 (f) “Eligible pole replacement costs” means the actual 111 reimbursement for such costs or through support payments that
83 costs to perform an eligible pole replacement which are paid by 112 equal or exceed the person’s actual deployment costs, including
84 an applicant, excluding any amount separately reimbursed through 113 eligible pole replacement costs. The term does not include the
85 another state or federal broadband grant program or by some 114 receipt of a state or federal grant that covers only a portion
86 other governmental entity. The term includes the costs to remove 115 of the applicant’s actual deployment costs, including eligible
87 and dispose of the existing utility pole, to purchase and 116 pole replacement costs, if the applicant pays the eligible pole
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117 replacement costs with its own funds. 146 Trust Fund are exhausted.
118 (m) “Unserved area” means a location in which: 147 (d) An application pending when all funds in the Broadband
119 1. At the time of a request by a retail provider of 148 Pole Replacement Trust Fund are exhausted is deemed denied;
120 qualifying broadband service to attach facilities to a pole in 149 however, the applicant may reapply if sufficient funds are later
121 such location, fixed, terrestrial, retail wireline broadband 150 made available in the trust fund.
122 Internet service is unavailable, according to the latest 151 (e) Within 60 days after the first deposit of funds into
123 available broadband deployment data from the Federal 152 the Broadband Pole Replacement Trust Fund, the office shall
124 Communications Commission, provided that no person other than 153 publish an application form for reimbursement of eligible pole
125 the applicant has committed to providing qualifying broadband 154 replacement costs under the program. The application must
126 service in such area; or 155 require the following:
127 2. An applicant is committed under the terms of a federal 156 1. Information sufficient to establish the number and cost
128 or state grant to provide qualifying broadband service, provided 157 of eligible pole replacements that qualify for reimbursement
129 that the availability of such grant is limited to areas lacking 158 under the program.
130 access to fixed, terrestrial, retail wireline broadband Internet 159 2. Documentation sufficient to establish that the claimed
131 service. 160 eligible pole replacements have been completed.
132 (3) BROADBAND POLE REPLACEMENT PROGRAM.— 161 3. The total reimbursement amount requested and any state
133 (a) The Broadband Pole Replacement Program is established 162 or federal grant funding or accounting information required to
134 within the Florida Office of Broadband. The office shall 163 justify the amount requested.
135 administer the program and is responsible for receiving and 164 4. A notarized statement from an officer or agent of the
136 reviewing applications and distributing reimbursements under the 165 applicant certifying that the contents of the application are
137 program. 166 true and accurate and that such applicant will comply with the
138 (b) Any applicant that pays eligible pole replacement costs 167 requirements of this section as a condition of receiving
139 is eligible for reimbursement of such costs under the program 168 reimbursement under the program.
140 and may submit an application for reimbursement in accordance 169 5. Receipts verifying the amount of eligible pole
141 with this section. 170 replacement costs paid by the applicant.
142 (c) Reimbursements provided under the program are subject 171 (f) Within 60 days after receipt of a complete application
143 to the availability of funds in the Broadband Pole Replacement 172 that establishes an applicant’s eligible pole replacement costs,
144 Trust Fund. The office shall accept applications for 173 the office shall reimburse the applicant in an amount equal to:
145 reimbursement until all funds in the Broadband Pole Replacement 174 1. Up to 50 percent of the total amount paid or $5,000,
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175 whichever is less, by such applicant for eligible pole 204 a requirement of this section with respect to such
176 replacement costs; and 205 reimbursements or portions thereof.
177 2. Up to 100 percent of the documented actual and 206 (i) If applicable, an applicant that is a pole owner that
178 reasonable administrative expenses paid by such applicant in 207 calculates its pole rental and other fees on the basis of a
179 preparing and submitting the application, including any 208 formula required or approved by federal or state law or
180 administrative expenses charged by a pole owner pursuant to 209 regulation which includes consideration of the pole owner’s
181 paragraph (g). The amount reimbursed under this subparagraph may 210 expenses, must, as a condition of receiving reimbursement under
182 not exceed 5 percent of eligible pole replacement costs set 211 the program, exclude from such expenses any eligible pole
183 forth in the application. 212 replacement costs that were reimbursed by the program, paid for
184 (g) If such information is not otherwise reasonably 213 by a retail provider of qualifying broadband service, or funded
185 available, an applicant may request that a pole owner performing 214 by another state or federal grant.
186 an eligible pole replacement provide the number and costs of the 215 (4) PROGRAM FUNDING.—
187 pole replacements and receipts verifying the amount of eligible 216 (a) The Secretary of Economic Opportunity shall apply for
188 pole replacement costs paid by the applicant. A pole owner 217 $100 million in federal funding for the program, including funds
189 providing such information and documentation may require 218 available under the Coronavirus Capital Projects Fund, pursuant
190 reimbursement from the applicant of its administrative expenses, 219 to the authorization set forth in s. 9901 of the American Rescue
191 which may not exceed 5 percent of the eligible pole replacement 220 Plan Act of 2021 and codified at s. 604, Title VI of the Social
192 costs. 221 Security Act, 42 U.S.C. s. 801, et seq. Any such funds received
193 (h) As a condition of receiving reimbursement under the 222 must be deposited into the Broadband Pole Replacement Trust
194 program, an applicant must: 223 Fund.
195 1. Certify its compliance with the requirements of this 224 (b) The amount of state funds allocated to the program must
196 section; and 225 be reduced by the amount of federal funds provided to the
197 2. Agree to refund with interest at the applicable Federal 226 program from the Coronavirus Capital Projects Fund.
198 Funds rate as specified by s. 670.506 any reimbursements or 227 (5) TRANSPARENCY.—Within 60 days after the initial deposit
199 portions thereof received under the program to the Broadband 228 of funds into the Broadband Pole Replacement Trust Fund, the
200 Pole Replacement Trust Fund or the General Revenue Fund, at the 229 office shall publish, and thereafter continually update, the
201 direction of the office, if the office finds, upon substantial 230 following information on its public website:
202 evidence and after providing such applicant with notice and an 231 (a) Statistics on the number of applications received,
203 opportunity to respond, that such applicant materially violated 232 processed, and rejected under the program.
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233 (b) Statistics on the value, number, and status of 262 Section 4. This act shall take effect upon becoming a law,
234 reimbursements provided under the program, including the names 263 if SB ___ or similar legislation is adopted in the same
235 of pole owners and retail providers of qualifying broadband 264 legislative session or an extension thereof and becomes a law.
236 service which received reimbursements under the program.
237 (c) The amount of funds remaining in the Broadband Pole
238 Replacement Trust Fund.
239 (6) AUDIT.—Within 1 year after the initial deposit of funds
240 into the Broadband Pole Replacement Trust Fund, the Auditor
241 General shall audit the fund and its administration for
242 compliance with the requirements of this section and s.
243 288.9965.
244 (7) REPORT.—Within 1 year after all funds in the Broadband
245 Pole Replacement Trust Fund are exhausted, the office shall
246 provide a report to the Governor, the President of the Senate,
247 and the Speaker of the House of Representatives which identifies
248 and examines the deployment of broadband infrastructure and
249 technology facilitated by reimbursements provided under the
250 program.
251 (8) RULEMAKING.—Rulemaking by the department, the office,
252 or any other agency is not required to administer and is not
253 authorized by this section.
254 Section 3. For the 2022-2023 fiscal year, the sum of $400
255 million in nonrecurring funds is appropriated from the General
256 Revenue Fund, from payments received by the state pursuant to
257 the Federal Coronavirus State Fiscal Recovery Fund established
258 in 42 U.S.C. s. 802, to the Florida Office of Broadband within
259 the Department of Economic Opportunity for the purpose of
260 administering the Broadband Opportunity Program established in
261 s. 288.9962, Florida Statutes.
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The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: CS/SB 1802
INTRODUCER: Commerce and Tourism Committee and Senator Boyd
SUBJECT: Broadband Pole Replacement Trust Fund
DATE: January 25, 2022 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Harmsen McKay CM Fav/CS
2. ATD
3. AP
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1802 creates the Broadband Pole Replacement Trust Fund within the Department of
Economic Opportunity (Department) and provides that the trust fund is established as a
depository for funds appropriated by the Legislature, federal funds received from the
Coronavirus Capital Projects Fund, funds transferred by the Department, interest earnings, and
grants, gifts, and other contributions made directly to the fund.
The bill is linked to CS/SB 1800, which creates the Broadband Pole Replacement Program
within the Department’s Office of Broadband.
This bill takes effect on the same date that SB 1800 takes effect, if such legislation is adopted in
the same legislative session or an extension thereof and becomes law.
II. Present Situation:
Article III, s. 19(f), of the Florida Constitution requires that state trust funds may only be created
by the Legislature if passed by a three-fifths vote of the membership of each house of the
Legislature in a separate bill for the sole purpose of creating a trust fund. Each trust fund must be
created by general law that specifies at a minimum all of the following:
The name of the trust fund;
The agency or branch of state government responsible for administering the trust fund;
The requirements or purposes the trust fund is established to meet;
BILL: CS/SB 1802 Page 2
The sources of moneys to be credited to the trust fund or specific sources of receipts to be
deposited in the trust fund. 1
State trust funds terminate no more than four years after the effective date of the act authorizing
the initial creation of the trust fund.2 The Legislature is required to review all state trust funds at
least once every four years.3 If the Legislature does not re-create a trust fund, it will be abolished
four years after its initial creation pursuant to the Florida Constitution.4
III. Effect of Proposed Changes:
Section 1 creates the Broadband Pole Replacement Trust Fund within the Department of
Economic Opportunity (Department) for the deposit of funds appropriated by the Legislature;
federal funds received from the Coronavirus Capital Projects Fund for the Broadband Pole
Replacement Program; funds transferred by the Department; interest earnings; and grants, gifts,
and other contributions made directly to the fund.
The bill provides that funds from the trust fund will be used to provide reimbursements to
qualified applicants from the Broadband Pole Replacement Program, created by linked bill, SB
1800, and for use by the Office of Broadband to administer the Program.
The bill further provides that any balance that is in the trust fund at the end of any fiscal year
shall be carried forward in the trust fund for the purposes of continued administration of the
Broadband Pole Replacement Program.
Pursuant to the requirements of the Florida Constitution, the trust fund will terminate 4 years
after its effective date, but must first be reviewed a provided in s. 215.3206(1) and (2), F.S.
Section 2 directs the Division of Law Revision to replace the phrase “4 years after the effective
date of this act” with the date that the trust fund will terminate.
Section 3 states that the act takes effect on the same date that SB 1800, relating to the Broadband
Pole Replacement Program, takes effect if such legislation is adopted in the same legislative
session or an extension thereof and becomes law.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
1
Section 215.3207, F.S.
2
FLA. CONST. art III, s. 19.
3
Section 215.3208, F.S.
4
FLA. CONST. art III, s. 19.
BILL: CS/SB 1802 Page 3
C. Trust Funds Restrictions:
Article III, s. 19(f), of the Florida Constitution requires that every trust fund be created by
a three-fifths vote of the membership of each house of the Legislature in a separate bill
for the sole purpose of creating a trust fund. State trust funds terminate no more than 4
years after the initial creation, unless they are re-created.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill creates section 288.9965 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Commerce and Tourism on January 24, 2022:
Inserts the bill number assigned to linked bill, CS/SB 1800, which creates the Broadband
Pole Replacement Trust Fund, in the contingent effective date.
BILL: CS/SB 1802 Page 4
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2022 COMMITTEE AMENDMENT
Bill No. SB 1802
Ì6210963Î621096
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
01/25/2022 .
.
.
.
The Committee on Commerce and Tourism (Boyd) recommended the
following:
1 Senate Amendment
2
3 Delete line 49
4 and insert:
5 SB 1800 or similar legislation takes effect, if such legislation
Page 1 of 1
1/20/2022 1:19:50 PM 577-02151-22
The Florida Senate
Committee Agenda Request
To: Senator Ed Hooper, Chair
Committee on Commerce and Tourism
Subject: Committee Agenda Request
Date: January 19, 2022
I respectfully request that Senate Bill #1564, relating to Telephone Solicitation, be placed on the:
committee agenda at your earliest possible convenience.
next committee agenda.
Senator Travis Hutson
Florida Senate, District 7
File signed original with committee office S-020 (03/2004)
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: CS/SB 1564
INTRODUCER: Commerce and Tourism Committee and Senator Hutson
SUBJECT: Telephone Solicitation
DATE: January 25, 2022 REVISED: 1/26/2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Harmsen McKay CM Fav/CS
2. RI
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
Section 501.059, F.S., prohibits telephonic sales calls that:
Use an automated system for the selection or dialing of telephone numbers or playing a
recorded message to a number without the prior express written consent of the called party;
Fail to transmit the originating telephone number and, when possible, name of the solicitor;
or
Alter the voice of the caller in order to defraud, confuse, or injure the telephone call
recipient.
The law also includes Do-Not-Call provisions, and similar consumer protections.
CS/SB 1564 makes the following changes to s. 501.059, F.S., regarding telephone solicitations:
Amends the definition of an “automated system” that is subject to s. 501.059, F.S., to include
only those that select and dial telephone numbers, play a recorded message, transmit a text
message, or transmit a prerecorded voicemail, rather than those that select or dial telephone
numbers;
Classifies telephonic sales calls made 120 days or more after the called party’s express
request for such a call as an unsolicited telephonic sales call;
Removes telephonic sales calls and text messages that poll or solicit the expression of ideas,
opinions, or votes from regulation as an unsolicited telephonic sales call subject to the Do-
Not-Call list regulations;
BILL: CS/SB 1564 Page 2
Limits the number of calls or messages that are made using an automated telephone dialing
system with live messages or text messages in response to an inquiry by the called party to
two per inquiry, but expressly provides that such calls are not prohibited pursuant to s.
501.059(8), F.S.; and
Declares the bill as remedial in nature and applies the amendments made by the bill
retroactively to July 1, 2021, and to any proceeding pending or commenced on or after July
1, 2021.
The bill takes effect upon becoming law.
II. Present Situation:
Unsolicited Phone Calls
Consumers are often inundated with unwanted calls. In fiscal year 2021, the Federal Trade
Commission (FTC) received 388,227 complaints from Florida consumers about unwanted
telephone calls.1 The Federal Communications Commission (FCC) reports that unwanted calls
constitute their top consumer complaint.2 Unwanted calls can come in many forms, including
robocalls3, which use an “automatic telephone dialing system,”4 referred to as an autodialer, and
play a recorded message upon connection with the consumer; “spoofing” or “spoofed calls,”
which transmit falsified information to a consumer’s caller ID to disguise the solicitor’s identity;
and unwanted telemarketing calls.5
State and federal action to combat these issues are limited because there are legitimate and legal
uses of this technology. For example, a doctor’s office may legally use a robocall to remind one
of an upcoming appointment.6 Additionally, some solicitors act outside the scope of federal or
state enforcement authority.
1
Federal Trade Commission, Do Not Call Data Book 2020 (Nov. 2021),
https://www.ftc.gov/system/files/documents/reports/national-do-not-call-registry-data-book-fiscal-year-
2021/dnc_data_book_2021.pdf (last visited Jan. 241, 2022).
2
Federal Communications Commission, Stop Unwanted Robocalls and Texts (Mar. 17, 2021),
https://www.fcc.gov/consumers/guides/stop-unwanted-robocalls-and-texts (last visited Jan. 24, 2022).
3
“At the FCC, we use the term ‘robocalls’ to refer not to just prerecorded calls but also autodialed calls, regardless of
whether the call is live or prerecorded.” Stopping Fraudulent Robocall Scams: Can More Be Done?, Hearing Before the
Senate Subcomm. on Cons. Protect., Product Safety, and Ins. of the Comm. on Commerce, Science, and Transportation,
130th Cong. (July 10, 2013) (Statement of Eric J. Bash, Associate Chief, Enforcement Bureau, Federal Communications
Commission) https://www.govinfo.gov/content/pkg/CHRG-113shrg85765/pdf/CHRG-113shrg85765.pdf (last visited Jan. 24,
2022).
4
An “automatic telephone dialing system” or “autodialer” is equipment that has t he capacity to produce or store phone
numbers using a random or sequential number generator, and to call those phone numbers. 47 U.S.C. § 227(a)(1).
5
“Fraudsters have also further exploited caller ID spoofing, which induces the consumer to pick up the phone, while at the
same time enabling the scammer to hide its identity and location.” Stopping Fraudulent Robocall Scams, Hearing, supra note
3, Statement of Lois Greisman, Associate Director, Division of Marketing Practices, Bureau of Consumer Protection, Federal
Trade Commission.
6
Federal Communication Commission, Consumer and Governmental Affairs Bureau, Report on Robocalls (Feb. 2019), CG
Docket No. 17-59, https://www.fcc.gov/document/fcc-issues-report-illegal-robocalls (last visited Jan. 24, 2022). See also,
Federal Communications Commission, Stop Unwanted Calls and Texts--Spoofing, supra note 2.(Mar. 2, 2021)
https://www.fcc.gov/consumers/guides/stop-unwanted-calls-and-texts (last visited Jan. 24, 2022).
BILL: CS/SB 1564 Page 3
Florida’s SB 1120 (2021)
In 2021, the Florida Legislature updated s. 501.059, F.S., and the Florida Telemarketing Act, s.
501.601, F.S., et. seq, to further address some of these issues facing consumers.7
Section 501.059, F.S., currently requires all sales telephone calls, text messages, and direct-to-
voicemail transmissions made with an autodialer that is capable of either selecting or dialing the
recipient’s number to have the receiving consumer’s prior express written consent. Additionally,
such calls require prior consent if they will play a recorded message upon connection with the
recipient. Aggrieved parties can sue under this section to recover actual monetary damages or
$500, plus attorney fees and costs. Additionally, a court may triple these damages if the
underlying violation is willfully or knowingly performed.
One entity reports that this 2021 change to the FTSA has resulted in at least 100 class action
complaints against those who make telephone sales calls since July 2021.8
Florida Law (Section 501.059, F.S.)
Generally
Section 501.059, F.S., governs telephone solicitors—those who make or cause to be made
telephonic sales calls in this state.9 A telephonic sales call includes solicitations via telephone
calls, text messages, and direct-to-voicemail transmissions.10
For example, the section requires telephone solicitors to:
Identify themselves and the businesses on whose behalf they make a telephone solicitation
call immediately upon making contact with the person called;
Adhere to the Do Not Call lists maintained by the Florida Department of Agriculture
Consumer Services11 and the Federal Trade Commission;12,13
Honor consumers’ requests to not receive any further telephone calls, text messages, or voice
mail transmissions. However, this prohibition applies only to calls made by or on behalf of a
seller who offers goods or services or a charity that solicits a charitable contribution.14
Additionally, section 501.059(8), F.S., prohibits telephonic sales calls that:
Use an automated system for the selection or dialing of telephone numbers or playing a
recorded message to a number without the prior express written consent15 of the called party;
7
Chapter 2021-185, s. 1, Laws of Fla.
8
Eric Troutman, TCPAWorld, The FTSA Claims are Still Pouring In: Florida Mini TCPA Continues to Generate Huge
Volume of Litigation (Dec. 13, 2021), https://tcpaworld.com/2021/12/13/the-ftsa-claims-are-still-pouring-in-florida-mini-
tcpa-continues-to-generate-huge-volume-of-litigation/ (last visited Jan. 24, 2022).
9
Section 501.059(1)(i), F.S.
10
Section 501.059(1)(j), F.S.
11
Florida Department of Agriculture and Consumer Services (DACS), Florida Do Not Call,
https://www.fdacs.gov/Consumer-Resources/Florida-Do-Not-Call (last visited Jan. 24, 2022).
12
Federal Trade Commission, National Do Not Call Registry, https://www.donotcall.gov/ (last visited Jan. 24, 2022).
13
See, ss. 501.059(3)-(4), F.S.
14
Section 501.059(5), F.S.
15
“Prior express written consent” is defined by s. 501.059(1)(g) as “a written agreement that bears the signature of the called
party; clearly authorizes receipt of a telephonic sales call made using an automated system to selected or dial the telephone
BILL: CS/SB 1564 Page 4
Fail to transmit the originating telephone number and, when possible, name of the solicitor;
or
Alter the voice of the caller in order to defraud, confuse, or injure the telephone call
recipient.
Florida Do Not Call Act
Do Not Call List
The Department also administers the Florida Do Not Call Act (also called the “Do Not Call
List”), which prohibits unsolicited phone calls and text messages.16 Residents who do not wish to
receive sales calls may request to have their residential, mobile, or paging device telephone
number included on the department’s list.17
A communication is unsolicited, and therefore prohibited under the Do Not Call List, unless the
contact is made:
At the consumer’s request;
By a charitable or political organization that is seeking donations;
As part of a survey, or for the purpose of research seeking an opinion;
To a person with whom the telephone solicitor has a prior existing business relationship;
In connection with an existing debt or contract for which payment is due; or
By a newspaper publisher, or his or her agent or employee, in connection with the publisher’s
business.18
Continued Solicitations
Section 501.059, F.S., further prohibits a telephone solicitor19 from calling, text messaging,
sending a direct voicemail transmission, or using automated telephone equipment to contact any
consumer who has previously communicated to the solicitor that he or she does not wish to
receive a telephone call, whether or not he or she is part of the Do Not Call List. However, this
prohibition applies only to calls made by or on behalf of a seller who offers goods or services or
a charity that solicits a charitable contribution.
Penalties
Either the Department of Agriculture and Consumer Services or the Office of the Attorney
General may bring an action against a telephone solicitor who violates the provisions of s,
501.059, F.S. Each violation is subject to a civil penalty with a maximum fine of $10,000 per
violation, or an administrative fine with a maximum of $1,000 per violation, in addition to
attorney’s fees and costs.20
numbers, or to play a recorded message; includes the telephone number authorized to be called; and includes a specific
informed disclosure statement.”
16
See, s. 501.059, F.S. DACS, Florida Do Not Call, https://www.fdacs.gov/Consumer-Resources/Florida-Do-Not-Call (last
visited Jan. 24, 2022).
17
Section 501.059(3)-(4), F.S.
18
Section 501.059(1)(k), F.S.
19
Section 501.059(1)(i), F.S., defines a “telephone solicitor” as a natural person or business that does business in this state by
making or causing to be made a telephone sales call.
20
Section 501.059(9), F.S.
BILL: CS/SB 1564 Page 5
In addition, a private citizen may file a private civil action to either enjoin the violation or
recover actual damages, or $500, whichever is greater, in addition to attorney’s fees and costs.
This civil penalty may be tripled by the court if it finds that the defendant knowingly or willfully
committed the violation.21
Federal Law
Telephone Consumer Protection Act22
The Telephone Consumer Protection Act of 1991 (TCPA) protects U.S. consumers from
unwanted communications by restricting the use of autodialers, prerecorded sales messages, and
unsolicited sales calls, text messages, or faxes.
The TCPA prohibits telephone solicitations that:
Are made to residences before 8 a.m. and after 9 p.m.;
Fail to provide the consumer with the solicitor’s identity, including his or her true phone
number via caller identification service,23 and an opportunity to opt out of the current call,
and all future calls, made by that solicitor;
Send pre-recorded messages to a residential line without the consumer’s prior express
consent, which may be on paper or through electronic means, including website forms or a
telephone keypress;24 and
Use an autodialer or pre-recorded messages to a cellular, emergency, or hospital room line
without prior express consent. Any telemarketing calls made to a cellular telephone number
require written prior express consent; all others require either oral or written consent.25 This
specific provision does not apply to residential phone lines.26
The TCPA’s protections extend to text messaging in the same manner that they apply to
telephone calls.27
The TCPA defines autodialers as “equipment which has the capacity—(A) to store or produce
telephone numbers to be called, using a random or sequential number generator; and (B) to dial
21
Sections 501.059(10)-(11), F.S.
22
47 U.S.C. § 227. See also, 47 CFR § 64.1200 (2012).
23
47 U.S.C. § 227(b)(2)(d). See also, 47 C.F.R. § 64.1601(e). See also, Federal Communications Commission, Public Notice:
FCC’s Caller ID Rules for Telemarketers Become Effective (Jan. 29, 2004)
https://apps.fcc.gov/edocs_public/attachmatch/DA-04-206A1.pdf (last visited Jan. 24, 2022).
24
Federal Communication Commission, Stop Unwanted Robocalls and Texts, supra note 2. See also, 47 CFR §
64.1200(a)(7)(i)(B), (b)(3). Certain calls made to a residential line, such as those by a tax-exempt
nonprofit organization or calls that are subject to HIPAA may be made without prior express consent.
25
FCC, 2015 TCPA Declaratory Ruling and Order, 30 FCC Rcd at 7999, para. 4 (Jun. 18, 2015).
26
In 2015, language was added to the TCPA to allow robocalls and autodialed calls to cell phones for the purpose of
collecting a debt owed to the U.S. government. See 47 U.S.C. § 227(b)(1)(A)(iii). This provision was severed from the law
by the U.S. Supreme Court in 2020 based on their finding that it was a content-specific speech regulation in violation of the
first amendment. The Court left the TCPA’s prohibition of robocalls and autodialed calls to cell phones intact. Barr v.
American Assc. Of Political Consultants, Inc., 140 S. Ct. 2335 (2020). See also, 47 CFR § 64.1200(f)(8).
27
FCC, 2015 TCPA Declaratory Ruling and Order, 30 FCC Rcd at 7999, para. 2 (Jun. 18, 2015); FCC, FCC Strengthens
Consumer Protections Against Unwanted Calls and Texts (Jun. 18, 2015)
https://apps.fcc.gov/edocs_public/attachmatch/DOC-333993A1.pdf (last visited Jan. 24, 2022).
BILL: CS/SB 1564 Page 6
such numbers.”28 The U.S. Supreme Court recently limited the effect of the TCPA by clarifying
that it only regulates autodialers that have the capacity either to store, or to produce, a telephone
number using a random or sequential number generator.29 This limits the TCPA’s regulations to
the now obsolete sequential number dialer style of autodialer, versus the predictive dialing
technology that most businesses use today.30
The TCPA grants a private right of action to pursue actual monetary damages or up to $500 per
violation.31 State attorneys general and the FCC also have jurisdiction to investigate and file civil
claims based on violations of the TCPA.32
Federal Do Not Call Program33
The FTC, in concert with the FCC, administers the National Do Not Call Program.34 Telephone
solicitors may not contact a consumer who participates in the National Do Not Call Program,
unless the calls are:35
Made with a consumer’s prior, express permission;
Informational in nature, such as those made to convey a utility outage, school closing, or
flight information; or
Made by a tax-exempt organization.
Truth in Caller ID Act36
The Truth in Caller ID Act of 2009 protects consumers by prohibiting any person from
transmitting misleading or inaccurate caller ID information (call spoofing) with the intent to
defraud, cause harm, or wrongfully obtain anything of value. The FCC investigates and
prosecutes violations of the act under its rules.37 The FCC has taken enforcement actions totaling
$450 million in fines, in recent years against telemarketers for call spoofing violations—of note,
the FCC imposed its largest fine ever against a Florida-based timeshare marketing operation.38
To protect individual privacy concerns, an individual caller may still request to hide his or her
phone number when making a call.39
28
47 U.S.C. § 227(b)(1)(A).
29
Facebook, Inc. v. Duguid, 141 S. Ct. 193 (2020).
30
Amanda Shanor, SCOTUSblog, Supreme Court Sides with Facebook in Narrowing the Federal Robocall Ban (Apr. 1,
2021), https://www.scotusblog.com/2021/04/supreme-court-sides-with-facebook-in-narrowing-the-federal-robocall-ban/ (last
visited Jan. 24, 2022).
31
47 U.S.C. § 227 (c)(5).
32
47 U.S.C. § 227 (f).
33
See, 15 U.S.C. § 6101.
34
Federal Communications Commission, Stop Unwanted Calls and Texts (Mar. 2, 2021),
https://www.fcc.gov/consumers/guides/stop-unwanted-calls-and-texts (last visited Jan. 24, 2022).
35
47 U.S.C. § 227(a)(4); See also, 47 C.F.R. § 64.1200 (2012).
36
47 U.S.C. § 227 (e).
37
See, 47 CFR § 64.1604.
38
Federal Communications Commission, The FCC’s Push to Combat Robocalls & Spoofing, https://www.fcc.gov/spoofed-
robocalls (last visited Jan. 24, 2022). See also, Federal Communications Commission, FCC Fines Massive Neighbor
Spoofing Robocall Operation $120 Million (May 10, 2018) https://www.fcc.gov/document/fcc-fines-massive-neighbor-
spoofing-robocall-operation-120-million (last visited Jan. 24, 2022).
39
47 CFR § 64.1601.
BILL: CS/SB 1564 Page 7
III. Effect of Proposed Changes:
Prior Written Consent
The 2021 changes to s. 501.059, F.S., require prior express written consent to place a telephonic
sales call to any consumer if the call would be made using an automated system to select or dial
the telephone number, or to play a recorded message. This consent is required whether or not the
caller and consumer had a prior business relationship.
CS/SB 1546 narrows the scope of those telephonic sales calls that are required to obtain the
called party’s prior express written consent prior to being placed by limiting the types of
automated systems subject to s. 501.059, F.S., to those that select and dial telephone numbers,
rather than those that select or dial the telephone numbers.40
The bill clarifies that prior express written consent is an agreement that allows telephonic sales
calls that use an automated system to transmit text messages in addition to telephonic sales calls
that use an automated system to select and dial telephone numbers, play a recorded message, or
transmit a prerecorded voicemail.
Additionally, the bill adds a provision that permits the use of an automated telephone dialing
system with live messages or text messages if the call or message is made solely in response to
an inquiry initiated by the called party. However, only two of these calls or messages may be
made in response to each inquiry. This language is substantively similar to language deleted by
SB 1120 (2021). It is unclear how this provision will interact with s. 501.059(8)(a), F.S.’s
prohibition of telephonic sales calls that involve an automated system for the selection and
dialing of telephone numbers…without the prior express written consent of the called party,
since the terminology is similar, but not consistent.
Unsolicited Telephonic Sales Calls
The bill amends the term “unsolicited telephonic sales call” to additionally exclude:
Telephonic sales calls made within 120 days after an express request of the called party,
rather than “in response to the request;” and
Telephonic sales calls other than those “limited to polling or soliciting the expression of
ideas, opinions, or votes, including when such polling or soliciting is made by text message.”
Therefore, a person who makes a telephonic sales call that falls into one of the above exclusions
from the definition of an “unsolicited telephonic sales call” is no longer required to:
Identify himself or herself by his or her true first and last names and the business on whose
behalf he or she is soliciting immediately upon making contact by telephone with the person
who is the object of the telephone solicitation;41 or
40
According to one article, the “or” definition is less likely to capture automated systems that select telephone numbers and
then allow a human to dial the number. See Daniel Blynn and Liz Clark Rinehart, Florida Legislature to the Rescue? House
Bill Proposed to Fix the Florida Telephone Solicitation Act’s Autodialer Provision (Jan. 14, 2022),
https://www.jdsupra.com/legalnews/florida-legislature-to-the-rescue-house-7860376/ (last visited Jan. 24, 2022).
41
Section 501.059(2), F.S.
BILL: CS/SB 1564 Page 8
Adhere to Florida’s Do-Not-Call list regulations.42
Clarifications
The bill clarifies a term by substituting “person called” with the defined term, “called party.”
The bill 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.
Effective Date and Retroactivity
The bill provides that it is remedial in nature and applies retroactively to July 1, 2021, and to any
proceeding pending or commenced on or after July 1, 2021.
The bill takes effect upon becoming law.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
Retroactive Application of Law and Expression of Remedial Nature
Under Florida law, statutes are presumed to operate prospectively, not retroactively. In
other words, statutes generally apply only to actions that occur on or after the effective
date of the legislation, not before the legislation becomes effective.
The Florida Supreme Court has noted that, under the rules of statutory construction, if
statutes are to operate retroactively, the Legislature must clearly express that intent for
42
Section 501.059(3)-(4), F.S.
BILL: CS/SB 1564 Page 9
the statute to be valid.43 When statutes that are expressly retroactive have been litigated
and appealed, the courts have been asked to determine whether the statute is remedial in
nature so as to require application to cases that were pending at the time the statute went
into effect. Generally, “the presumption applied to procedural and remedial statutes is
that they are to apply to pending cases.”44 Conversely, a law that affects substantive
rights by creating substantive new rights or imposing new legal burdens is presumed to
apply prospectively.45
In a recent Florida Supreme Court case, the Court acknowledged that “[t]he distinction
between substantive and procedural (remedial) law is neither simple nor certain.”46 The
Court further acknowledged that their previous pronouncements regarding the
retroactivity of procedural laws have been less than precise and have been unclear.47
Courts, however, have invalidated the retroactive application of a statute if the statute
impairs vested rights, creates new obligations, or imposes new penalties.48 Still, in other
cases, the courts have permitted statutes to be applied retroactively if they do not create
new, or take away, vested rights, but only operate to further a remedy or confirm rights
that already exist.49
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
The bill adds language to subsection 501.059(8)(e), F.S., which permits the use of “automated
telephone dialing system with live messages or text messages” in specific instances. It is unclear
how this will interact with the similar, but inconsistent, terminology found in section
501.059(8)(a), F.S., which requires prior express written consent to make a telephonic sales call
43
Walker & LaBerge, Inc., v. Halligan, 344 So. 2d 239 (Fla. 1977). See also, Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d
1352 (Fla. 1994). However, “[j]ust because the Legislature labels something as being remedial, however, does not make it
so.” See, e.g., State v. Smith, 547 So2d 613 (Fla. 1989); State, Dep’t of Transp. v. Knowles, 402 So.2d 1155 (Fla. 1981).
44
Love at 181, citing Arrow Air, Inc. v. Walsh, 645 So.2d 422, 424 (Fla. 1994).
45
Arrow Air, Inc., at 424.
46
Love v. State, 286 So. 3d 177, 183 (Fla. 2019) quoting Caple v. Tuttle’s Design-Build, Inc., 753 So. 2d 49, 53 (Fa. 2000).
47
Love at 184.
48
R.A.M. of South Florida, Inc. v. WCI Communities, Inc., 869 So. 2d 1210 (Fla 2004).
49
Ziccardi v. Strother, 570 So. 2d 1319 (Fla. 1990).
BILL: CS/SB 1564 Page 10
using an “automated system for the selection and dialing of telephone numbers or the playing of
a recorded message…”.
The bill clarifies that prior express written consent means an agreement that authorizes the
person to place a telephonic sales call using an automated system for transmissions of text
messages, in addition to dialing telephone numbers, playing a recorded message, or transmitting
prerecorded voicemails. However, when the same reference to an automated system is used
elsewhere in 501.059, F.S., it does not make the same clarification.
The new language that excludes polling telephonic sales calls from the definition of an
unsolicited telephonic sales call is not grammatically consistent with the other provisions.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 501.059 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Commerce and Tourism on January 24, 2022:
Adds clarifying language that “prior express written consent” is an agreement that
authorizes a telephonic sales call, which includes text messages;
Exempts from the definition of an “unsolicited telephonic sales call” those calls and
text messages that are made to poll or solicit the expression of ideas, opinions, or
votes;
Re-instates the 2021 requirement that a consumer’s prior express written consent is
needed to place a telephonic sales call that uses an automated system for the selection
and dialing of telephone numbers, or playing of a recorded message;
Expresses that s. 501.059(8), F.S.’s prohibited actions do not prohibit the use of an
automated telephone dialing system with live messages or text messages if the call or
message is made solely in response to an inquiry initiated by the called party.
However, only two calls or messages are permitted in response to each inquiry;
Narrows the provision that permits an award of attorney fees and costs from those
civil actions “resulting from a transaction involving a violation of this section” to
those “resulting from a violation of this section”; and
Makes the proposed language retroactive to July 1, 2021, and specifically applies to
“any proceeding pending or commenced on or after July 1, 2021.”
B. Amendments:
None.
BILL: CS/SB 1564 Page 11
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2022 COMMITTEE AMENDMENT
Bill No. SB 1564
Ì1839601Î183960
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
01/25/2022 .
.
.
.
The Committee on Commerce and Tourism (Hutson) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Paragraphs (g) and (k) of subsection (1),
6 paragraph (a) of subsection (8), and subsection (11) of section
7 501.059, Florida Statutes, are amended, and paragraph (e) is
8 added to subsection (8) of that section, to read:
9 501.059 Telephone solicitation.—
10 (1) As used in this section, the term:
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11 (g) “Prior express written consent” means a written
12 agreement that:
13 1. Bears the signature of the called party;
14 2. Clearly authorizes the person making or allowing the
15 placement of a telephonic sales call by telephone call, text
16 message, or voicemail transmission to deliver or cause to be
17 delivered to the called party a telephonic sales call using an
18 automated system for the selection and or dialing of telephone
19 numbers, the playing of a recorded message when a connection is
20 completed to a number called, the transmission of a text
21 message, or the transmission of a prerecorded voicemail;
22 3. Includes the telephone number to which the signatory
23 authorizes a telephonic sales call to be delivered; and
24 4. Includes a clear and conspicuous disclosure informing
25 the called party that:
26 a. By executing the agreement, the called party authorizes
27 the person making or allowing the placement of a telephonic
28 sales call to deliver or cause to be delivered a telephonic
29 sales call to the called party using an automated system for the
30 selection and or dialing of telephone numbers or the playing of
31 a recorded message when a connection is completed to a number
32 called; and
33 b. He or she is not required to directly or indirectly sign
34 the written agreement or to agree to enter into such an
35 agreement as a condition of purchasing any property, goods, or
36 services.
37 (k) “Unsolicited telephonic sales call” means a telephonic
38 sales call other than a call made:
39 1. Within 120 days after In response to an express request
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40 of the person called party;
41 2. Primarily in connection with an existing debt or
42 contract, if payment or performance of such debt or contract has
43 not been completed at the time of such call;
44 3. To a person with whom the telephone solicitor has a
45 prior or existing business relationship; or
46 4. By a newspaper publisher or his or her agent or employee
47 in connection with his or her business; or
48 5. Limited to polling or soliciting the expression of
49 ideas, opinions, or votes, including when such polling or
50 soliciting is made by text message.
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 text
59 messages if the call or message is made solely in response to an
60 inquiry initiated by the called party. However, only two such
61 calls or messages may be made in response to each inquiry.
62 (11)(a) In any civil litigation resulting from a
63 transaction involving a violation of this section, the
64 prevailing party, after judgment in the trial court and
65 exhaustion of all appeals, if any, shall receive his or her
66 reasonable attorney attorney’s fees and costs from the
67 nonprevailing party.
68 (b) The attorney for the prevailing party shall submit a
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69 sworn affidavit of his or her time spent on the case and his or
70 her costs incurred for all the motions, hearings, and appeals to
71 the trial judge who presided over the civil case.
72 (c) The trial judge shall award the prevailing party the
73 sum of reasonable costs incurred in the action plus a reasonable
74 legal fee for the hours actually spent on the case as sworn to
75 in an affidavit.
76 (d) Any award of attorney attorney’s fees or costs shall
77 become a part of the judgment and subject to execution as the
78 law allows.
79 (e) In any civil litigation initiated by the department or
80 the Department of Legal Affairs, the court may award to the
81 prevailing party reasonable attorney attorney’s fees and costs
82 if the court finds that there was a complete absence of a
83 justiciable issue of either law or fact raised by the losing
84 party or if the court finds bad faith on the part of the losing
85 party.
86 Section 2. The amendments made by this act to s. 501.059,
87 Florida Statutes, are remedial in nature and apply retroactively
88 to July 1, 2021, and to any proceeding pending or commenced on
89 or after July 1, 2021.
90 Section 3. This act shall take effect July 1, 2022.
91
92 ================= T I T L E A M E N D M E N T ================
93 And the title is amended as follows:
94 Delete everything before the enacting clause
95 and insert:
96 A bill to be entitled
97 An act relating to telephone solicitation; amending s.
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98 501.059, F.S.; redefining terms; conforming a
99 provision to changes made by the act; authorizing the
100 use of automated telephone dialing systems with live
101 messages in response to certain inquiries; providing a
102 limitation; revising provisions for the award of
103 attorney fees and costs; providing for retroactive
104 application; providing an effective date.
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Florida Senate - 2022 SB 1564 Florida Senate - 2022 SB 1564
By Senator Hutson
7-01690-22 20221564__ 7-01690-22 20221564__
1 A bill to be entitled 30 the called party that:
2 An act relating to telephone solicitation; amending s. 31 a. By executing the agreement, the called party authorizes
3 501.059, F.S.; revising the definitions of the terms 32 the person making or allowing the placement of a telephonic
4 “prior express written consent” and “unsolicited 33 sales call to deliver or cause to be delivered a telephonic
5 telephonic sales call”; revising the limitations on 34 sales call to the called party using an automated system for the
6 making unsolicited telephonic sales calls; providing 35 selection and or dialing of telephone numbers or the playing of
7 an effective date. 36 a recorded message when a connection is completed to a number
8 37 called; and
9 Be It Enacted by the Legislature of the State of Florida: 38 b. He or she is not required to directly or indirectly sign
10 39 the written agreement or to agree to enter into such an
11 Section 1. Paragraphs (g) and (k) of subsection (1) and 40 agreement as a condition of purchasing any property, goods, or
12 paragraph (a) of subsection (8) of section 501.059, Florida 41 services.
13 Statutes, are amended to read: 42 (k) “Unsolicited telephonic sales call” means a telephonic
14 501.059 Telephone solicitation.— 43 sales call other than a call made:
15 (1) As used in this section, the term: 44 1. Within 120 days after In response to an express request
16 (g) “Prior express written consent” means a written 45 of the person called party;
17 agreement that: 46 2. Primarily in connection with an existing debt or
18 1. Bears the signature of the called party; 47 contract, if payment or performance of such debt or contract has
19 2. Clearly authorizes the person making or allowing the 48 not been completed at the time of such call;
20 placement of a telephonic sales call by telephone call, text 49 3. To a person with whom the telephone solicitor has a
21 message, or voicemail transmission to deliver or cause to be 50 prior or existing business relationship; or
22 delivered to the called party a telephonic sales call using an 51 4. By a newspaper publisher or his or her agent or employee
23 automated system for the selection and or dialing of telephone 52 in connection with his or her business.
24 numbers, the playing of a recorded message when a connection is 53 (8)(a) A person may not make or knowingly allow an
25 completed to a number called, or the transmission of a 54 unsolicited a telephonic sales call to be made if such call
26 prerecorded voicemail; 55 involves an automated system for the selection and or dialing of
27 3. Includes the telephone number to which the signatory 56 telephone numbers or the playing of a recorded message when a
28 authorizes a telephonic sales call to be delivered; and 57 connection is completed to a number called without the prior
29 4. Includes a clear and conspicuous disclosure informing 58 express written consent of the called party.
Page 1 of 3 Page 2 of 3
CODING: Words stricken are deletions; words underlined are additions. CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2022 SB 1564
7-01690-22 20221564__
59 Section 2. This act shall take effect upon becoming a law.
Page 3 of 3
CODING: Words stricken are deletions; words underlined are additions.
The Florida Senate
Committee Agenda Request
To: Senator Ed Hooper, Chair
Committee on Commerce and Tourism
Subject: Committee Agenda Request
Date: January 13, 2022
I respectfully request that Senate Bill #1878, relating to Capital Investment Tax Credit, be
placed on the:
committee agenda at your earliest possible convenience.
next committee agenda.
Please let me know if you have any questions.
Sincerely,
Joe Gruters
Cc: Todd McKay, Staff Director
Kathryn Vigrass, Committee Administrative Assistant
File signed original with committee office S-020 (03/2004)
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: SB 1878
INTRODUCER: Senator Gruters
SUBJECT: Capital Investment Tax Credit
DATE: January 21, 2022 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Renner McKay CM Favorable
2. FT
3. AP
I. Summary:
SB 1878 amends s. 220.191, F.S. to expand an existing credit under the Capital Tax Credit
(CITC) to include certain projects for the development or creation of intellectual property, and to
create an additional tax credit under the CITC relating to intellectual property projects.
The bill amends an existing credit under the CITC for certain high-impact sector facilities, and
enterprise zone and brownfield area headquarters facilities, which is granted against the state
corporate income tax or insurance premium tax. The bill adds to such categories a project or
projects that involve the development or creation of intellectual property and that meet a certain
average wage requirement.
The bill creates a new tax credit for qualifying businesses relating to intellectual property
projects if one or more project is at least an aggregate of $500 million over a 3-year period. The
tax credit is calculated as 20 percent of the eligible wages, salaries, employer-paid taxes and
benefits, or other compensation paid to any individual, including amounts paid through an
employee leasing company, and the direct production costs paid to any business, regardless of
the location, generated by the qualifying project.
The credit is granted against the state corporate income tax, the state sales tax, or both.
The Revenue Estimating Conference has not yet determined the fiscal impact of the bill.
The bill takes effect July 1, 2022.
BILL: SB 1878 Page 2
II. Present Situation:
Capital Investment Tax Credit
The Capital Investment Tax Credit (CITC) was established by the Legislature in 1998 to attract
and grow capital-intensive industries in the state.1 The CITC is currently comprised of two tax
credits–one that is available for three categories of qualifying projects and that provides a credit
against the state corporate income tax or insurance premium tax2, and a second that is limited to
certain headquarters facilities and that provides a credit against the corporate income tax.3 Both
credits are granted to qualified businesses certified by the Department of Economic Opportunity
(DEO).
Credit under s. 220.191(2), F.S.
The first credit under the CITC is available for three categories of qualifying projects:4
A new or expanded Florida facility that is in a designated high-impact sector5 and that creates
at least 100 new jobs in Florida (high-impact sector facilities).
A new or expanded Florida facility that is in a qualified target industry6 and that creates or
retains at least 1,000 jobs in Florida, provided that at least 100 of those jobs are new, pay an
annual average wage of at least 130 percent of the average private sector wage in the area,
and result in a cumulative capital investment of at least $100 million (QTI facilities).
A new or expanded Florida headquarters facility that is located in an enterprise zone and
brownfield area; that creates at least 1,500 jobs, which on average pay at least 200 percent of
the statewide average annual private sector wage; and that makes a cumulative capital
investment in this state of at least $250 million (headquarters facilities).
The annual credit amount is 5 percent of the eligible capital costs generated by the qualifying
project for up to 20 years,7 beginning with the commencement of operations of the project.8 The
credit is granted against state corporate income tax liability or premium tax liability generated
by, or arising out of, the qualifying project. Annual limits for the tax credit apply, depending on
the type of qualifying project:
1
Chapter 98-61, Laws of Fla.
2
Section 220.191(2), F.S.
3
Section 220.191(3), F.S.
4
Section 220.191(1)(g) and (2)(a), F.S.
5
The sectors currently designated as high impact are clean energy, life sciences, financial services, information technology,
semi-conductors, transportation equipment manufacturing, advanced manufacturing, or a corporate headquarters facility. See
Department of Economic Opportunity, 2021 Annual Incentives Report, 41, available at https://floridajobs.org/docs/default-
source/reports-and-legislation/2020-2021-annual-incentives-report-final.pdf?sfvrsn=287550b0_2 (last visited Jan. 21, 2022).
6
The current qualified target industries are aviation and aerospace; corporate headquarters; clean technology; defense and
homeland security; financial and professional services; global logistics and trade; information technology; life sciences;
manufacturing; and research and development. See Department of Economic Opportunity, 2021 Annual Incentives Report,
12, available at https://floridajobs.org/docs/default-source/reports-and-legislation/2020-2021-annual-incentives-report-
final.pdf?sfvrsn=287550b0_2 (last visited Jan. 21, 2022).
7
For qualified target industry facilities, the tax credit period is limited to 5 years. See s. 220.191(1)(g)2., F.S.
8
Section 220.191(2)(a), F.S. Eligible capital costs include all expenses incurred in the acquisition, construction, installation,
and equipping of a project from the beginning of construction to the commencement of operations. They do not include the
cost of any property previously owned or leased by the qualifying business. See s. 220.191(1)(c), F.S.
BILL: SB 1878 Page 3
For a QTI facility, annual credits against the state corporate income tax may not exceed
50 percent of the increased annual corporate income tax liability or the premium tax liability
generated by, or arising out of, the qualifying project.9
For high-impact sector facilities and headquarters facilities, the annual credit limits depend
on the amount of cumulative capital investment resulting from the qualifying project:10
o For a qualifying project resulting in a cumulative capital investment of at least
$100 million, the annual credit may not exceed 100 percent of the annual corporate
income tax liability or premium tax liability generated by, or arising out of, the qualifying
project.
o For a qualifying project resulting in a cumulative capital investment of at least
$50 million to under $100 million, the annual credit may not exceed 75 percent of the
annual corporate income tax liability or premium tax liability generated by, or arising out
of, the qualifying project.
o For a qualifying project resulting in a cumulative capital investment of at least
$25 million to under $50 million, the annual credit may not exceed 50 percent of the
annual corporate income tax liability or premium tax liability generated by, or arising out
of, the qualifying project.
A qualifying project with less than a $25 million cumulative capital investment is not eligible for
the credit.11
Generally, an unused credit may not be carried backward or forward to apply to tax liabilities in
previous or subsequent years, respectively.12 However, a business with a qualifying project
resulting in a cumulative capital investment of at least $100 million may apply unused credits
beginning with the 21st year after the commencement of the project’s operations and ending the
30th year after the commencement of the project’s operations.13
The credit may not be assigned or transferred, except by a qualifying business establishing a
qualifying project that includes locating a new solar panel manufacturing facility in Florida and
that generates a minimum of 400 jobs within 6 months after commencement of operations, with
an average salary of at least $50,000. Such business may assign or transfer its annual credit or
any portion thereof to any other business, subject to certain limitations and conditions.14
Credit under s. 220.191(3), F.S.
The second credit under the CITC is limited to qualifying businesses that establish a
headquarters facility qualifying project. The annual credit amount is the lesser of $15 million or
5 percent of the eligible capital costs made in connection with a qualifying project for up to
20 years, beginning with the commencement of the project.15 The credit is granted against the
9
Section 220.191(1)(g)2., F.S.
10
Section 220.191(2)(a), F.S.
11
Section 220.191(2)(b), F.S.
12
Section 220.191(2)(a), F.S.
13
Section 220.191(2)(d), F.S.
14
Section 220.191(2)(c), F.S.
15
Section 220.191(3)(a), F.S.
BILL: SB 1878 Page 4
state corporate income tax liability of the qualifying business. The total tax credit is limited to
100 percent of the qualifying project’s eligible capital costs.16
Unused credits may be carried forward for up to 20 years after the commencement of the
project’s operations.17 The credit may be used by certain related entities of the qualifying
business.18
Certification of Qualifying Businesses and Issuance of Tax Credits
The DEO must certify a business as eligible to receive either of the CITC tax credits before the
commencement of operations of a qualifying project. If a business is certified, the DEO will
enter into an agreement with the business that specifies the planned commencement date of
operations and the total amount of credit the business can expect if the project proceeds as
planned. Agreements are drafted so that a qualified business’s annual credit amount begins on
the date of commencement of operations, beginning the 20-year credit period. If for some reason
operations do not commence on time, the 20-year window is not adjusted.19 Before receiving a
tax credit each year, a qualifying business must achieve and maintain its minimum employment
goals beginning with the commencement of operations of a qualifying project.20 Qualifying
businesses must also affirmatively demonstrate to the Department of Revenue (DOR) that they
meet job creation and capital investment requirements.21
Economic Impact
According to the DEO, there were 65 active CITC awardees with 31 reporting performance as of
Fiscal Year 2020-2021; the DEO confirmed 3,216 jobs created and over $313 million in capital
investment in said fiscal year.22 Over $70 million in tax credits were approved to be claimed by
qualified business in calendar year 2020.23
16
Id.
17
Section 220.191(3)(b), F.S.
18
Section 220.191(3)(c), F.S.
19
Florida Senate Committee on Finance and Tax, Issue Brief 2012-2014: Review of the Capital Investment Tax Credit
(September 2011), available at https://www.flsenate.gov/PublishedContent/Session/2012/InterimReports/2012-204ft.pdf (last
visited Jan. 21, 2022). See also s. 220.191(5), F.S.
20
Section 220.191(4), F.S.
21
Section 220.191(7), F.S.
22
Department of Economic Opportunity, 2021 Annual Incentives Report, 8, available at https://floridajobs.org/docs/default-
source/reports-and-legislation/2020-2021-annual-incentives-report-final.pdf?sfvrsn=287550b0_2 (last visited Jan. 21, 2022).
23
Id at 37.
BILL: SB 1878 Page 5
Select State Taxes
The following describes select Florida taxes, which the bill provides credits against.
Corporate Income Tax
Florida imposes a tax on the taxable income of certain corporations and financial institutions
doing business in Florida.24 The current rate is 5.5 percent25 of a taxpayer’s net income for its
taxable year (the calendar or fiscal year or period upon which its net income is computed).26
The calculation of Florida corporate income tax starts with a corporation’s federal taxable
income.27 Taxable income earned by corporations operating in more than one state is taxed in
Florida on an apportioned basis using a formula based 25 percent on property, 25 percent on
payroll, and 50 percent on sales.28 Income that is apportioned to Florida using this formula is
then subject to the Florida income tax. The first $50,000 of net income is exempt, effective with
taxable years beginning January 1, 2013.29
Corporate income tax net collections in Fiscal Year 2020-2021 were a little over $3 billion.30
Insurance Premium Tax
Florida imposes on insurers a tax on insurance premiums. For the tax imposed by
s. 624.509(1), F.S., tax is due on:
Insurance premiums;
Premiums for title insurance;
Assessments, including membership fees and policy fees and gross deposits received from
subscribers to reciprocal or interinsurance agreements; and
Annuity premiums or considerations.
The general tax rate is 1.75 percent of gross receipts on account of life and health insurance
policies covering Florida residents and on account of all other types of policies and contracts
covering property, subjects, or risks located, resident, or to be performed in Florida, minus
reinsurance and return premiums.31 Annuity policies or contracts held in Florida are taxed at
1 percent of gross receipts, and direct written premiums for bail bonds are taxed at 1.75 percent,
excluding any amounts retained by licensed bail bond agents or appointed managing general
agents.32 The insurance premium tax is collected by the DOR and distributed to the General
24
Chapter 220, F.S.
25
The tax rate was adjusted downward to 4.458 percent pursuant to s. 220.1105, F.S., for taxable years beginning on or after
January 1, 2019. Pursuant to s. 220.1105(5), F.S., the rate returned to 5.5 percent for taxable years beginning on or after
January 1, 2022.
26
Sections 220.11(2) and 220.63(2), F.S.
27
Section 220.12, F.S.
28
Section 220.15, F.S.
29
Section 220.14, F.S.
30
Revenue Estimating Conference, General Revenue Consensus Estimating Conference Comparison Report (August 17,
2021), 27, available at http://www.edr.state.fl.us/Content/conferences/generalrevenue/grpackage.pdf (last visited Jan. 21,
2022).
31
Section 624.509(1), F.S.
32
Id.
BILL: SB 1878 Page 6
Revenue Fund.33 Total insurance premium tax collections in Fiscal Year 2020-2021 were
$1.1 billion.34
Sales and Use Tax
Florida levies a 6 percent sales and use tax on the sale or rental of most tangible personal
property, admissions,35 transient rentals,36 and a limited number of services, and a 5.5 percent
sales and use tax on commercial real estate rentals37 (state sales tax). Chapter 212, F.S.,
authorizes the levy and collection of the state sales tax, and provides exemptions and credits
applicable to certain items or uses under specified circumstances.38 Florida requires a dealer to
add the tax to the sales price of the taxable good or service and collect it from the purchaser at
the time of sale.39 Total sales tax collections in Fiscal Year 2021-2022 is estimated at
$32.7 billion.40
In addition to the state sales tax, county and municipal governments and school districts are
authorized to levy certain local discretionary sales surtaxes (also referred to as local option sales
taxes), subject to certain requirements and limitations.41
III. Effect of Proposed Changes:
The bill amends s. 220.191, F.S., to expand the credit under s. 220.191(2), F.S., to add certain
projects involving the development or creation of intellectual property to the list of eligible
categories, and to create one new tax credit under the CITC.
Expansion of the Credit
The bill expands the credit by adding to the categories of qualifying projects a project involving
the development or creation of intellectual property, which may consist of one or more projects
with different start and completion dates, provided that the project’s jobs in Florida pay at least
150 percent of the annual average private sector wage in the area (intellectual property project).
The bill defines “intellectual property” as a qualifying copyrightable project for which the
cumulative intellectual property investment is principally paid directly or indirectly for the
creation of the project. The bill provides examples of “qualifying copyrightable projects,” as
television or streaming video projects that include only the following content: series, pilots,
commercial advertisements, music videos, music, animation, interactive entertainment, or sound
recording projects used in series or pilots. Projects are limited to being recorded in this state, in
whole or in part. The term also includes projects provided for distribution using delivery systems
33
Section 624.509(3), F.S.
34
Supra note 30, at 34.
35
Section 212.04, F.S.
36
Section 212.03, F.S.
37
Section 212.031, F.S.
38
Section 212.02(14)(a), F.S.
39
See ss. 212.07(2) and 212.06(3)(a), F.S.
40
Office of Economic and Demographic Research, The Florida Legislature, Florida Tax Handbook, Including Fiscal Impact
of Potential Changes, 155 (2021), available at http://edr.state.fl.us/Content/revenues/reports/tax-
handbook/taxhandbook2021.pdf (last visited Jan. 21, 2022).
41
See ss. 212.054 and 212.055, F.S.
BILL: SB 1878 Page 7
that include film, videotape, computer disc, laser disc, and any element of the digital domain
from which the program is viewed or reproduced and which is intended for licensing for
exhibition by individual television stations, groups of stations, networks, cable television
stations, public broadcasting stations, corporations, live venues, the Internet, or any other
channel or exhibition except for theaters. Software or feature-length films exceeding 80 minutes
in length are excluded.
The bill also expands the definition of “eligible capital costs” to include a qualifying project for
the development or creation of intellectual property during the period from the start date of the
project to the completion of the project.
The bill defines “employer-paid taxes and benefits” to include social security tax; Medicare tax;
federal unemployment and state reemployment assistance taxes; workers’ compensation
premiums and benefits; vacation pay, holiday pay, and sick pay; payroll-handling fees; mileage;
car allowances; housing allowances; and per diem. “Direct production costs” is defined to mean
direct expenses related to the preproduction, development or filming, and postproduction of
intellectual property, but does not include the distribution and marketing of intellectual property.
A qualifying business establishing an intellectual property project would be eligible for a
corporate income tax credit or an insurance premium tax credit for 5 percent of the above
expenses.
The current requirements, limitations, and other provisions of the s. 220.191(2), F.S., credit, as
discussed above, apply to intellectual property projects. The applicable annual credit limits for
intellectual property projects is the same as for high-impact sector facilities and headquarters
facilities.
Creation of Credit for Intellectual Property Investment
The bill creates a tax credit for qualifying business establishing intellectual property projects that
meet certain levels of cumulative intellectual property investment (IP investment credit).
The bill defines “cumulative intellectual property investment” as the total investment for the
development of intellectual property during the period from the start date of the project to the
completion of the project in buildings or equipment; in wages, salaries, or other compensation
paid to employees, including amounts paid through an employee leasing company and any
employer-paid taxes and benefits regardless of location.
Unlike existing CITC credits, the IP investment credit is granted against the state corporate
income tax, the state sales tax, or a stated combination of the two.
To qualify for the credit, a qualifying business must elect to make a cumulative intellectual
property investment of one or more projects is at least an aggregate of $500 million over a 3-year
period. The tax credit is calculated as 20 percent of the eligible wages, salaries, employer-paid
taxes and benefits, or other compensation paid to any individual, including amounts paid through
an employee leasing company, and the direct production costs paid to any business, regardless of
BILL: SB 1878 Page 8
the location, generated by the qualifying project. The tax credit must be granted against the tax
liability of the qualifying business.
The tax credit may be used in any one year or years beginning with the commencement of the
project and ending the second year after the completion of the project.
The DEO must grant tax credits within 30 days after it certifies the costs. If the qualifying
business fails to meet the required cumulative intellectual property investment level, any
previously granted IP investment credit must be revoked and rescinded. A qualified business is
subject to a 10 percent penalty and interest, along with repayment of the credit, if a revoked and
rescinded credit has already been claimed on a return or transferred to another business.
Other Changes
The bill amends the definition of “cumulative investment” under the Innovation Incentive
Program in s. 288.1089, F.S., to specify that the expanded definition of “eligible capital costs”
for CITC made by the bill does not apply to that program, which incorporates the definition of
“eligible capital costs” by reference.
The provisions of the bill do not apply to any qualifying project application certified before
December 31, 2021.
The bill takes effect July 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
BILL: SB 1878 Page 9
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
The Revenue Estimating Conference has not yet determined the fiscal impact of the bill.
B. Private Sector Impact:
A qualified business establishing a qualifying project involving the development or
creation of intellectual property may benefit from substantial reductions in state corporate
income tax, insurance premium tax, or state sales tax liabilities through the credits
amended and created by the bill.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
On line 44 of the bill, cumulative intellectual property investment includes employer-paid taxes
and benefits, regardless of location. On line 119 of the bill, a qualifying copyrightable project is
limited to projects recorded in Florida, in whole or in part.
It is unclear if regardless of location or in whole or in part would allow a qualifying business
establishing intellectual property projects outside of Florida to be eligible for the Florida tax
credits.
VIII. Statutes Affected:
This bill substantially amends sections 220.191 and 288.1089 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2022 SB 1878 Florida Senate - 2022 SB 1878
By Senator Gruters
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1 A bill to be entitled 30 (a) “Commencement of operations” means the beginning of
2 An act relating to the capital investment tax credit; 31 active operations by a qualifying business of the principal
3 amending s. 220.191, F.S.; defining and redefining 32 function for which a qualifying project was constructed.
4 terms; providing a credit against the corporate income 33 (b) “Cumulative capital investment” means the total capital
5 tax, the sales and use tax, or a stated combination of 34 investment in land, buildings, and equipment made in connection
6 the two taxes to a qualifying business that 35 with a qualifying project during the period from the beginning
7 establishes a qualifying project for the creation of 36 of construction of the project to the commencement of
8 intellectual property which meets a certain capital 37 operations.
9 investment threshold; specifying the calculation of 38 (c) “Cumulative intellectual property investment” means the
10 the credit; authorizing use of the credit or portions 39 total investment for the development of intellectual property
11 of the credit by the business or members of its 40 during the period from the start date of the project to the
12 affiliated group of corporations; authorizing use of 41 completion of the project in buildings or equipment; in wages,
13 the credit within a certain timeframe; requiring the 42 salaries, or other compensation paid to employees, including
14 department to grant credits within a certain timeframe 43 amounts paid through an employee leasing company; and any
15 after costs are certified by the Department of 44 employer-paid taxes and benefits, regardless of location.
16 Economic Opportunity; providing for revocation and 45 (d) “Direct production costs” means direct expenses related
17 rescindment of credits under certain circumstances; 46 to the preproduction, development or filming, and postproduction
18 conforming provisions to changes made by the act; 47 of intellectual property. The term does not include the
19 amending s. 288.1089, F.S.; revising the definition of 48 distribution and marketing of intellectual property.
20 the term “cumulative investment”; providing 49 (e)1. “Eligible capital costs” means all expenses incurred
21 applicability; providing an effective date. 50 by a qualifying business in connection with:
22 51 a. The acquisition, construction, installation, and
23 Be It Enacted by the Legislature of the State of Florida: 52 equipping of a qualifying project during the period from the
24 53 beginning of construction of the project to the commencement of
25 Section 1. Section 220.191, Florida Statutes, is amended to 54 operations; or
26 read: 55 b. A qualifying project for the development or creation of
27 220.191 Capital investment tax credit.— 56 intellectual property during the period from the start date of
28 (1) DEFINITIONS.—As used in For purposes of this section, 57 the project to the completion of the project.
29 the term: 58 2. The term includes, including, but is not limited to:
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59 a.1. The costs of acquiring, constructing, installing, 88 and benefits; vacation pay, holiday pay, and sick pay; payroll-
60 equipping, and financing a qualifying project, including all 89 handling fees; mileage; car allowances; housing allowances; and
61 obligations incurred for labor and obligations to contractors, 90 per diem.
62 subcontractors, builders, and materialmen. 91 (g)(d) “Income generated by or arising out of the
63 b.2. The costs of acquiring land or rights to land and any 92 qualifying project” means the qualifying project’s annual
64 cost incidental thereto, including recording fees. 93 taxable income as determined by generally accepted accounting
65 c.3. The costs of architectural and engineering services, 94 principles and under s. 220.13. If a qualifying business has
66 including test borings, surveys, estimates, plans and 95 more than one qualifying project pursuant to subparagraph
67 specifications, preliminary investigations, environmental 96 (2)(a)1., the term means the annual taxable income as determined
68 mitigation, and supervision of construction, as well as the 97 by generally accepted accounting principles and under s. 220.13
69 performance of all duties required by or consequent to the 98 for each qualifying project, aggregated during the years that
70 acquisition, construction, installation, and equipping of a 99 more than one qualifying project is allowed to claim credits.
71 qualifying project. 100 (h)(e) “Intellectual property” means a qualifying
72 d.4. The costs associated with the installation of fixtures 101 copyrightable project for which the cumulative intellectual
73 and equipment; surveys, including archaeological and 102 property investment is principally paid directly or indirectly
74 environmental surveys; site tests and inspections; subsurface 103 for the creation of the project.
75 site work and excavation; removal of structures, roadways, and 104 (i) “Jobs” means full-time equivalent positions, as that
76 other surface obstructions; filling, grading, paving, and 105 term is consistent with terms used by the Department of Economic
77 provisions for drainage, storm water retention, and installation 106 Opportunity and the United States Department of Labor for
78 of utilities, including water, sewer, sewage treatment, gas, 107 purposes of reemployment assistance tax administration and
79 electricity, communications, and similar facilities; and offsite 108 employment estimation, resulting directly from a project in this
80 construction of utility extensions to the boundaries of the 109 state. The term does not include temporary construction jobs
81 property. 110 involved in the construction of the project facility.
82 111 (j)(f) “Qualifying business” means a business which
83 Eligible capital costs do shall not include the cost of any 112 establishes a qualifying project in this state and which is
84 property previously owned or leased by the qualifying business. 113 certified by the Department of Economic Opportunity to receive
85 (f) “Employer-paid taxes and benefits” includes social 114 tax credits pursuant to this section.
86 security tax; Medicare tax; federal unemployment and state 115 (k) “Qualifying copyrightable project” means television or
87 reemployment assistance taxes; workers’ compensation premiums 116 streaming video projects that include only the following
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117 content: series, pilots, commercial advertisements, music 146 Rosa County, Walton County, or Wakulla County.
118 videos, music, animation, interactive entertainment, or sound 147 2. A new or expanded facility in this state which is
119 recording projects used in series or pilots. The term is limited 148 engaged in a target industry designated pursuant to the
120 to projects recorded in this state, in whole or in part. The 149 procedure specified in s. 288.106(2) and which is induced by
121 term includes projects provided for distribution using delivery 150 this credit to create or retain at least 1,000 jobs in this
122 systems that include film, videotape, computer disc, laser disc, 151 state, provided that at least 100 of those jobs are new, pay an
123 and any element of the digital domain from which the program is 152 annual average wage of at least 130 percent of the average
124 viewed or reproduced and which is intended for licensing for 153 private sector wage in the area as defined in s. 288.106(2), and
125 exhibition by individual television stations, groups of 154 make a cumulative capital investment of at least $100 million.
126 stations, networks, cable television stations, public 155 Jobs may be considered retained only if there is significant
127 broadcasting stations, corporations, live venues, the Internet, 156 evidence that the loss of jobs is imminent. Notwithstanding
128 or any other channel of exhibition except for theaters. The term 157 subsection (2), annual credits against the tax imposed by this
129 does not include software or feature-length films exceeding 80 158 chapter may not exceed 50 percent of the increased annual
130 minutes in length. 159 corporate income tax liability or the premium tax liability
131 (l)(g) “Qualifying project” means a facility or project in 160 generated by or arising out of a project qualifying under this
132 this state meeting one or more of the following criteria: 161 subparagraph. A facility that qualifies under this subparagraph
133 1. A new or expanding facility in this state which creates 162 for an annual credit against the tax imposed by this chapter may
134 at least 100 new jobs in this state and is in one of the high- 163 take the tax credit for a period not to exceed 5 years.
135 impact sectors identified by Enterprise Florida, Inc., and 164 3. A new or expanded headquarters facility in this state
136 certified by the Department of Economic Opportunity pursuant to 165 which locates in an enterprise zone and brownfield area and is
137 s. 288.108(6), including, but not limited to, aviation, 166 induced by this credit to create at least 1,500 jobs which on
138 aerospace, automotive, and silicon technology industries. 167 average pay at least 200 percent of the statewide average annual
139 However, between July 1, 2011, and June 30, 2014, the 168 private sector wage, as published by the Department of Economic
140 requirement that a facility be in a high-impact sector is waived 169 Opportunity, and which new or expanded headquarters facility
141 for any otherwise eligible business from another state which 170 makes a cumulative capital investment in this state of at least
142 locates all or a portion of its business to a Disproportionally 171 $250 million.
143 Affected County. For purposes of this section, the term 172 4. A project involving the development or creation of
144 “Disproportionally Affected County” means Bay County, Escambia 173 intellectual property, provided that the project’s jobs in this
145 County, Franklin County, Gulf County, Okaloosa County, Santa 174 state pay an annual average wage of at least 150 percent of the
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175 average private sector wage in the area as defined in s. 204 than $50 million.
176 288.106. A project that qualifies under this subparagraph may 205 (b) A qualifying project which results in a cumulative
177 consist of one or more projects with different start and 206 capital investment of less than $25 million is not eligible for
178 completion dates. 207 the capital investment tax credit. An insurance company claiming
179 (2)(a) An annual credit against the tax imposed by this 208 a credit against premium tax liability under this program may
180 chapter shall be granted to any qualifying business in an amount 209 shall not be required to pay any additional retaliatory tax
181 equal to 5 percent of the eligible capital costs generated by a 210 levied pursuant to s. 624.5091 as a result of claiming such
182 qualifying project, for a period not to exceed 20 years 211 credit. Because credits under this section are available to an
183 beginning with the commencement of operations of the project. 212 insurance company, s. 624.5091 does not limit such credit in any
184 Unless assigned as described in this subsection, the tax credit 213 manner.
185 shall be granted against only the corporate income tax liability 214 (c) A qualifying business that establishes a qualifying
186 or the premium tax liability generated by or arising out of the 215 project that includes locating a new solar panel manufacturing
187 qualifying project, and the sum of all tax credits provided 216 facility in this state that generates a minimum of 400 jobs
188 pursuant to this section may shall not exceed 100 percent of the 217 within 6 months after commencement of operations with an average
189 eligible capital costs of the project. In no event may any 218 salary of at least $50,000 may assign or transfer the annual
190 credit granted under this section be carried forward or backward 219 credit, or any portion thereof, granted under this section to
191 by any qualifying business with respect to a subsequent or prior 220 any other business. However, the amount of the tax credit that
192 year. The annual tax credit granted under this section may shall 221 may be transferred in any year shall be the lesser of the
193 not exceed the following percentages of the annual corporate 222 qualifying business’s state corporate income tax liability for
194 income tax liability or the premium tax liability generated by 223 that year, as limited by the percentages applicable under
195 or arising out of a qualifying project: 224 paragraph (a) and as calculated before prior to taking any
196 1. One hundred percent for a qualifying project which 225 credit pursuant to this section, or the credit amount granted
197 results in a cumulative capital investment of at least $100 226 for that year. A business receiving the transferred or assigned
198 million. 227 credits may use the credits only in the year received, and the
199 2. Seventy-five percent for a qualifying project which 228 credits may not be carried forward or backward. To perfect the
200 results in a cumulative capital investment of at least $50 229 transfer, the transferor shall provide the department with a
201 million but less than $100 million. 230 written transfer statement notifying the department of the
202 3. Fifty percent for a qualifying project which results in 231 transferor’s intent to transfer the tax credits to the
203 a cumulative capital investment of at least $25 million but less 232 transferee; the date the transfer is effective; the transferee’s
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233 name, address, and federal taxpayer identification number; the 262 The tax credit must be granted against the tax liability of the
234 tax period; and the amount of tax credits to be transferred. The 263 qualifying business.
235 department shall, upon receipt of a transfer statement 264 (b) The credit granted under this subsection may be used in
236 conforming to the requirements of this paragraph, provide the 265 whole or in part by the qualifying business or any corporation
237 transferee with a certificate reflecting the tax credit amounts 266 that is a member of that qualifying business’ affiliated group
238 transferred. A copy of the certificate must be attached to each 267 of corporations. Any credit may be used by any of the affiliated
239 tax return for which the transferee seeks to apply such tax 268 corporations to the same extent as it could have been used by
240 credits. 269 the qualifying business. However, any such use may not operate
241 (d) If the credit granted under subparagraph (a)1. is not 270 to increase the amount of the credit or extend the period within
242 fully used in any one year because of insufficient tax liability 271 which the credit must be used.
243 on the part of the qualifying business, the unused amounts may 272 (c) A qualifying business that elects to use the tax credit
244 be used in any one year or years beginning with the 21st year 273 may use the tax credit in any one year or years beginning with
245 after the commencement of operations of the project and ending 274 the commencement of the project and ending the second year after
246 the 30th year after the commencement of operations of the 275 the completion of the project.
247 project. 276 (d) Notwithstanding the cumulative intellectual property
248 (3)(a) Notwithstanding subsection (2), a credit against the 277 investment threshold under paragraph (a), the department must
249 tax imposed by this chapter, against state taxes collected or 278 grant tax credits to a qualifying business within 30 days after
250 accrued under chapter 212, or against a stated combination of 279 the date any costs described in this subsection are certified by
251 the two taxes must be granted to a qualifying business that 280 the Department of Economic Opportunity.
252 establishes a qualifying project pursuant to subparagraph 281 (e)1. If the qualifying business fails to meet the level of
253 (1)(l)4. for which the cumulative intellectual property 282 cumulative intellectual property investment required by this
254 investment of one or more projects is, at the election of the 283 subsection, then any previously granted tax credit issued
255 qualifying business, at least an aggregate of $500 million over 284 pursuant to this subsection must be revoked and rescinded.
256 a 3-year period. The tax credit must be granted in an amount 285 2. This paragraph may not result in the revocation or
257 equal to 20 percent of the eligible wages, salaries, employer- 286 rescindment of any credits or incentives awarded to a project
258 paid taxes and benefits, or other compensation paid to any 287 outside of this subsection.
259 individual, including amounts paid through an employee leasing 288 3. If such revoked and rescinded credit has already been
260 company, and the direct production costs paid to any business, 289 claimed on a return, the business must repay the credit plus the
261 regardless of the location, generated by the qualifying project. 290 interest applicable under s. 213.235 and a 10 percent penalty.
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291 4. If such revoked and rescinded credit has already been 320 that is either a member of that qualifying business’s affiliated
292 transferred to another business, the transferor must repay the 321 group of corporations, is a related entity taxable as a
293 credit plus the interest applicable under s. 213.235 and a 10 322 cooperative under subchapter T of the Internal Revenue Code, or,
294 percent penalty. 323 if the qualifying business is an entity taxable as a cooperative
295 (4)(a) Notwithstanding subsection (2), an annual credit 324 under subchapter T of the Internal Revenue Code, is related to
296 against the tax imposed by this chapter must shall be granted to 325 the qualifying business. Any entity related to the qualifying
297 a qualifying business that which establishes a qualifying 326 business may continue to file as a member of a Florida-nexus
298 project pursuant to subparagraph (1)(l)3. (1)(g)3., in an amount 327 consolidated group pursuant to a prior election made under s.
299 equal to the lesser of $15 million or 5 percent of the eligible 328 220.131(1), Florida Statutes (1985), even if the parent of the
300 capital costs made in connection with a qualifying project, for 329 group changes due to a direct or indirect acquisition of the
301 a period not to exceed 20 years beginning with the commencement 330 former common parent of the group. Any credit can be used by any
302 of operations of the project. The tax credit must shall be 331 of the affiliated companies or related entities referenced in
303 granted against the corporate income tax liability of the 332 this paragraph to the same extent as it could have been used by
304 qualifying business and as further provided in paragraph (c). 333 the qualifying business. However, any such use may shall not
305 The total tax credit provided pursuant to this subsection must 334 operate to increase the amount of the credit or extend the
306 shall be equal to no more than 100 percent of the eligible 335 period within which the credit must be used.
307 capital costs of the qualifying project. 336 (5)(4) Before Prior to receiving tax credits pursuant to
308 (b) If the credit granted under this subsection is not 337 this section, a qualifying business must achieve and maintain
309 fully used in any one year because of insufficient tax liability 338 the minimum employment goals beginning with the commencement of
310 on the part of the qualifying business, the unused amount may be 339 operations or the completion date of at a qualifying project and
311 carried forward for a period not to exceed 20 years after the 340 continuing each year thereafter during which tax credits are
312 commencement of operations of the project. The carryover credit 341 available pursuant to this section.
313 may be used in a subsequent year when the tax imposed by this 342 (6)(5) Applications must shall be reviewed and certified
314 chapter for that year exceeds the credit for which the 343 pursuant to s. 288.061. The Department of Economic Opportunity,
315 qualifying business is eligible in that year under this 344 upon a recommendation by Enterprise Florida, Inc., shall first
316 subsection after applying the other credits and unused 345 certify a business as eligible to receive tax credits pursuant
317 carryovers in the order provided by s. 220.02(8). 346 to this section before prior to the commencement of operations
318 (c) The credit granted under this subsection may be used in 347 or the completion date of a qualifying project, and such
319 whole or in part by the qualifying business or any corporation 348 certification must shall be transmitted to the Department of
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349 Revenue. Upon receipt of the certification, the Department of
350 Revenue shall enter into a written agreement with the qualifying
351 business specifying, at a minimum, the method by which income
352 generated by or arising out of the qualifying project will be
353 determined.
354 (7)(6) The Department of Economic Opportunity, in
355 consultation with Enterprise Florida, Inc., is authorized to
356 develop the necessary guidelines and application materials for
357 the certification process described in subsection (6) (5).
358 (8)(7) It shall be the responsibility of the qualifying
359 business to affirmatively demonstrate to the satisfaction of the
360 Department of Revenue that such business meets the job creation
361 and capital investment requirements of this section.
362 (9)(8) The Department of Revenue may specify by rule the
363 methods by which a project’s pro forma annual taxable income is
364 determined.
365 Section 2. Paragraph (d) of subsection (2) of section
366 288.1089, Florida Statutes, is amended to read:
367 288.1089 Innovation Incentive Program.—
368 (2) As used in this section, the term:
369 (d) “Cumulative investment” means cumulative capital
370 investment and all eligible capital costs, as defined in s.
371 220.191, Florida Statutes (2021).
372 Section 3. The amendments made by this act to s. 220.191,
373 Florida Statutes, do not apply to any qualifying project
374 application certified before December 31, 2021.
375 Section 4. This act shall take effect July 1, 2022.
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CourtSmart Tag Report
Room: SB 110 Case No.: Type:
Caption: Senate Commerce and Tourism Committee Judge:
Started: 1/24/2022 3:02:58 PM
Ends: 1/24/2022 5:00:23 PM Length: 01:57:26
3:02:57 PM Meeting called to order by Chair Hooper
3:03:07 PM Roll call by Administrative Assistant
3:03:14 PM Quorum present
3:03:33 PM Comments by Chair Hooper
3:03:47 PM Tab 4 - SB 1718, Cosmetic Animal Testing by Senator Book
3:04:10 PM Senator Book explains the bill
3:04:54 PM Amendment 539134
3:05:08 PM Senator Book explains the amendment
3:05:25 PM Amendment is adopted
3:05:48 PM Travis Moore, Humane Society of the US, waives in support of the bill
3:06:02 PM Kate MacFall, Animal Legal Defense Fund, waives in support of the bill
3:06:06 PM Senator Book waives close on bill
3:06:15 PM Roll call on bill; CS/SB 1718 is reported favorably
3:06:39 PM Tab 2 - SB 1038, Florida Seaport Transportation and Economic Development Council by Senator Perry
3:06:48 PM Senator Hutson explains bill on behalf of Senator Perry
3:07:28 PM Nicole Kelly, Putnam County, waives time in support of the bill
3:07:36 PM Senator Hutson waives close on the bill
3:07:44 PM Roll call on bill; SB 1038 is reported favorably
3:08:01 PM Tab 8 - SB 1564, Telephone Solicitation by Senator Hutson
3:08:15 PM Delete-all Amendment 183960
3:08:47 PM Senator Hutson explains the delete-all amendment
3:10:50 PM Question on amendment by Senator Taddeo
3:11:01 PM Question by Senator Powell
3:11:10 PM Followup question
3:11:16 PM Response by Senator Hutson
3:11:42 PM Edda Fernandez, AARP, waive in support
3:11:43 PM Ted Smith, FL Auto Dealers Association, waive in support
3:11:46 PM Carolyn Johnson, FL Chamber of Commerce, waive in support
3:11:50 PM Adam Basford, Associated Industries of Florida, waive in support
3:12:11 PM Delete-all Amendment is adopted
3:12:17 PM Back on bill as amended
3:12:27 PM Senator Hutson waives close
3:12:35 PM Roll call on bill; CS/SB1564 is reported favorably
3:12:59 PM Tab 3 - SB 1618, Restrictions on Employment by Senator Broxson
3:13:27 PM Senator Broxson explains the bill
3:14:11 PM Late-filed Amendment 679300
3:14:56 PM Senator Broxson explains the late-filed amendment
3:15:29 PM No appearance cards on the amendment
3:15:41 PM Amendment is adopted
3:15:46 PM Back on bill as amended
3:15:54 PM Question by Senator Torres
3:16:08 PM Response from Senator Broxson
3:19:01 PM Question from Senator Pizzo
3:20:20 PM Response from Senator Broxson
3:20:41 PM Additonal comments and questions from Senator Pizzo
3:21:12 PM Response from Senator Broxson
3:22:03 PM Senator Pizzo in debate
3:23:04 PM Senator Broxson waives close on bill
3:23:15 PM Roll call on bill; CS/SB 1618 is reported favorably
3:23:32 PM Tab 9 - SB 1878, Capital Investment Tax Credit by Senator Gruters
3:23:47 PM Senator Gruters explains the bill
3:24:50 PM Senator Torres with questions
3:25:00 PM Response from Senator Gruters
3:25:13 PM Question from Senator Taddeo
3:25:32 PM Response from Senator Gruters
3:25:48 PM Followup question from Senator Taddeo
3:25:58 PM Response from Senator Gruters
3:26:33 PM Question from Senator Pizzo
3:26:49 PM Response from Senator Gruters
3:27:02 PM Followup question from Senator Pizzo
3:27:07 PM Response to followup question
3:28:14 PM Additional question from Senator Pizzo
3:28:24 PM Response from Senator Gruters
3:28:37 PM Senator Torres with additional question
3:28:47 PM Response from Senator Gruters
3:29:14 PM Question from Senator Powell
3:29:23 PM Response from Senator Gruters
3:30:05 PM Followup question from Senator Powell
3:30:14 PM Response to followup question
3:30:54 PM Senator Torres with an additional question
3:31:09 PM Response from Senator Gruters
3:31:42 PM Adam Basford, Associated Industries of Florida, waives speaking time in support of the bill
3:32:01 PM Carolyn Johnson, Florida Chamber of Commerce, waives speaking time in support of the bill
3:32:03 PM Senator Pizzo in debate
3:32:55 PM Senator Taddeo in debate
3:34:18 PM Senator Gruters closes on bill
3:35:00 PM Roll call on SB 1878
3:35:36 PM SB 1878 is reported favorably
3:36:03 PM Tab 1 - SB 634, Judical Notice by Senator Bradley
3:36:18 PM Senator Bradley explains the bill
3:37:02 PM Question from Senator Brandes
3:38:04 PM Amendment 321424
3:38:15 PM Senator Bradley explains the amendment
3:38:35 PM No appearance cards for the amendment
3:38:49 PM The amendment is adopted
3:38:58 PM Back on bill as amended
3:39:03 PM Bob Harris, Trial Lawyers Section/Florida Bar, waive in support
3:39:15 PM John Hickey speaks in support of the bill
3:40:57 PM Nancy Daniels, Florida Public Defender Association, providing information
3:42:18 PM Senator Pizzo with question of speaker
3:42:38 PM Ms. Daniels responds to Senator Pizzo
3:43:02 PM Followup question of speaker from Senator Pizzo
3:43:33 PM Response from Ms. Daniels
3:44:18 PM No debate
3:44:28 PM Senator Bradley closes on bill
3:44:32 PM Roll call on bill CS/SB 634
3:45:11 PM CS/SB 634 is reported favorably
3:45:40 PM Tab 6 - SB 1800, Broadband Infrastructure by Senator Boyd
3:45:53 PM Senator Gruters explains bill on behalf of Senator Boyd
3:46:26 PM Question from Senator Powell on bill
3:46:55 PM No response to question
3:47:34 PM Question from Senator Torres
3:47:53 PM Senator Gruters defers question to someone else
3:48:31 PM Followup question on bill
3:48:50 PM Response from Senator Gruters
3:49:08 PM Question from Senator Torres
3:49:15 PM Response from Senator Gruters
3:49:53 PM Additional question from Senator Torres
3:50:06 PM Response from Senator Gruters
3:50:15 PM Amendment 240514
3:50:21 PM Senator Gruters explains the amendment
3:50:45 PM Amendment is adopted
3:50:50 PM Back on bill as amended
3:50:55 PM Senator Pizzo with question
3:51:36 PM Senator Pizzo with question
3:52:03 PM Edda Fernandez, AARP, waive in support
3:52:28 PM Speaker Albie Kaminsky, Charter Communications, speaks in support of the bill
3:55:43 PM Senator Pizzo with question to the speaker
3:55:58 PM Mr. Kaminsky responds to question
3:56:05 PM Back and forth in questions and responses
3:59:47 PM Senator Torres with question of speaker
4:00:06 PM Response from Mr. Kaminsky
4:00:56 PM Followup question from Senator Torres
4:01:06 PM Response from Mr. Kaminsky
4:02:12 PM Back and forth in questions and responses
4:02:38 PM Senator Powell with question of speaker
4:03:13 PM Mr. Kaminsky responds to Senator Powell
4:05:23 PM Allison Carter, Florida Electric Cooperatives Association, waives speaking time in support
4:05:32 PM Adam Basford, Associated Industries of Florida, waives speaking time in support of the bill
4:05:39 PM Chris Doolin, Small County Coalition, appearing with information
4:08:15 PM Senator Taddeo with question of Mr. Doolin
4:08:28 PM Mr. Doolin responds
4:08:35 PM Followup question from Senator Taddeo
4:08:57 PM Chris Doolin responds to Senator Taddeo
4:09:21 PM Senator Pizzo in debate
4:11:05 PM Senator Torres in debate
4:11:43 PM Senator Wright in debate
4:12:16 PM Senator Powell in debate
4:13:09 PM Senator Taddeo in debate
4:13:45 PM Senator Gruters to close on bill
4:13:53 PM Roll call on CS/SB 1800
4:14:31 PM CS/SB 1800 is reported favorably
4:14:51 PM Tab 7 - SB 1802, Broadband Pole Replacement Trust Fund by Senator Boyd
4:15:01 PM Senator Gruters explains the bill on behalf of Senator Boyd
4:15:27 PM Amendment 621096
4:15:50 PM Senator Gruters explains amendment
4:16:01 PM Senator Pizzo in debate on amendment
4:16:21 PM Amendment is adopted
4:16:28 PM Back on bill as amended
4:16:42 PM Adam Basford waive in support
4:16:44 PM Albie Kaminsky waive in support
4:17:01 PM Senator Gruters waives close on bill
4:17:10 PM Roll call on CS/SB 1802
4:17:19 PM CS/SB 1802 is reported favorably
4:17:31 PM Tab 5 - SB 1762, Solicitation of Nonmedical Services by Senator Brandes
4:17:46 PM Senator Brandes explains the bill
4:23:36 PM Senator Powell with question of Senator Brandes
4:23:48 PM Senator Brandes responds
4:23:55 PM Question from Senator Torres
4:24:07 PM Senator Brandes with response
4:25:16 PM Question from Senator Pizzo
4:25:34 PM Response from Senator Brandes
4:26:11 PM Followup questions from Senator Pizzo
4:27:19 PM Back and forth with questions and responses
4:31:13 PM Question from Senator Wright
4:31:43 PM Question from Chair Hooper
4:31:59 PM Senator Brandes responds to questions
4:33:45 PM Question from Senator Diaz
4:34:01 PM Response from Senator Brandes
4:34:53 PM Followup question from Senator Diaz
4:35:07 PM Response to followup
4:35:43 PM Senator Hooper announces numerous speakers waiving time in support of bill
4:36:35 PM Speaker Jared Willis, Alliance for Patient Access, speaks in support of bill
4:38:56 PM Senator Powell asks question of Mr. Willis
4:39:15 PM Mr. Willis responds to question
4:39:30 PM Followup question from Senator Powell
4:39:39 PM Mr. Willis responds to question
4:40:20 PM Speaker William Large, Florida Justice Reform Institute, speaks in support of the bill
4:44:13 PM Senator Taddeo asks question of speaker William Large
4:44:40 PM Mr. Large responds to question
4:45:10 PM Followup question from Senator Taddeo
4:45:22 PM Mr. Large responds to question
4:45:37 PM Senator Pizzo asks questions of Mr. Large
4:46:42 PM Back and forth in questions and responses
4:50:59 PM Speaker Joshua Harris speaks against the bill
4:54:43 PM Senator Pizzo with questions
4:55:15 PM Senator Pizzo with additional questions
4:55:16 PM Response from Speaker
4:57:18 PM Back and forth in questions and responses
4:57:28 PM Senator Torres with questions
4:57:39 PM Response from speaker
4:58:15 PM Senator Taddeo with question
4:58:32 PM Response from speaker
4:58:44 PM Senator Torres in debate
4:59:21 PM With time running out, meeting is adjourned
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