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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/, SHA-256 58de1d61a8801ec6adef449ec3747930ba9c00d2e498d925452b54b282eddea8.

Full text

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




       8-01092-22                                                20221038__          8-01092-22                                                20221038__
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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       8-01092-22                                                20221038__           8-01092-22                                              20221038__
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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        8-01092-22                                                20221038__           8-01092-22                                                  20221038__
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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        8-01092-22                                                20221038__           8-01092-22                                               20221038__
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.

                                  Page 25 of 26                                                                  Page 26 of 26
      CODING: Words stricken are deletions; words underlined are additions.          CODING: Words stricken are deletions; words underlined are additions.
                                                      The Florida Senate
                  BILL ANALYSIS AND FISCAL IMPACT STATEMENT
              (This document is based on the provisions contained in the legislation as of the latest date listed below.)

                  Prepared By: The Professional Staff of the Committee on Commerce and Tourism

BILL:           CS/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
     CODING: Words stricken are deletions; words underlined are additions.            CODING: Words stricken are deletions; words underlined are additions.
       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

                                    Page 1 of 5                                                                 Page 2 of 5
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       Florida Senate - 2022                                        SB 1762           Florida Senate - 2022                                        SB 1762




       24-00556-22                                               20221762__           24-00556-22                                               20221762__
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
      CODING: Words stricken are deletions; words underlined are additions.
                                              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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       Florida Senate - 2022                                        SB 1800           Florida Senate - 2022                                       SB 1800




       21-01515C-22                                              20221800__           21-01515C-22                                             20221800__
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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        Florida Senate - 2022                                      SB 1800            Florida Senate - 2022                                       SB 1800




        21-01515C-22                                           20221800__             21-01515C-22                                             20221800__
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,

                                   Page 5 of 10                                                                   Page 6 of 10
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        Florida Senate - 2022                                        SB 1800           Florida Senate - 2022                                        SB 1800




        21-01515C-22                                              20221800__           21-01515C-22                                              20221800__
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.

                                    Page 7 of 10                                                                       Page 8 of 10
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        Florida Senate - 2022                                        SB 1800           Florida Senate - 2022                                        SB 1800




        21-01515C-22                                              20221800__           21-01515C-22                                              20221800__
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.

                                  Page 9 of 10                                                                   Page 10 of 10
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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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     Florida Senate - 2022                         COMMITTEE AMENDMENT
     Bill No. SB 1564




                              Ì1839601Î183960


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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     Florida Senate - 2022                          COMMITTEE AMENDMENT
     Bill No. SB 1564




                             Ì1839601Î183960


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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     Florida Senate - 2022                            COMMITTEE AMENDMENT
     Bill No. SB 1564




                                Ì1839601Î183960


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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      Florida Senate - 2022                           COMMITTEE AMENDMENT
      Bill No. SB 1564




                              Ì1839601Î183960


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




       23-00592B-22                                                 20221878__          23-00592B-22                                              20221878__
 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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