Meeting Packet — Commerce Committee (April 10, 2023)
Summary
Meeting packet of the Commerce Committee for Monday, April 10, 2023, 2:00 PM to 6:00 PM, with Bob Rommel as Chair. The agenda lists HB 57, Motor Vehicle Liability Policies, by Truenow, HB 523, Individual Wine Containers, by LaMarca, and PCS for CS/HB 677, Electronic Payment Transactions, along with PCB COM 23-03 and PCB COM 23-04. The staff analysis of HB 57 states that the bill amends Florida's Financial Responsibility Law to permit risk retention groups, which are authorized by federal law, to provide the required motor vehicle coverage to group members. The packet also contains a title amendment for PCS for CS/HB 677 on credits for tax remittance by electronic means.
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
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Commerce Committee
Monday, April 10, 2023
2:00 PM – 6:00 PM
Webster Hall (212 Knott)
Meeting Packet
Paul Renner Bob Rommel
Speaker Chair
The Florida House of Representatives
Commerce Committee
Paul Renner Bob Rommel
Speaker Chair
Meeting Agenda
Monday, April 10, 2023
2:00 PM – 6:00 PM
Webster Hall (212 Knott)
I. Call to Order
II. Roll Call
III. Opening Remarks
IV. Consideration of the following bill(s):
HB 57 Motor Vehicle Liability Policies by Truenow
CS/HB 221 Sales of Firearms and Ammunition by Regulatory Reform & Economic
Development Subcommittee, Snyder
CS/CS/HB 233 Next of Kin of Deceased Minors by Constitutional Rights, Rule of Law
& Government Operations Subcommittee, Regulatory Reform & Economic Development
Subcommittee, Michael
CS/HB 253 Regulation of Securities by Insurance & Banking Subcommittee, Barnaby
CS/HB 439 Land Use and Development Regulations by Local Administration, Federal
Affairs & Special Districts Subcommittee, McClain
HB 523 Individual Wine Containers by LaMarca
CS/HB 541 Motor Vehicle Glass by Insurance & Banking Subcommittee, Griffitts
HB 599 Debt Management Services by Garcia
303 House Office Building, 402 South Monroe Street, Tallahassee, FL 32399-1300
(850) 717-4870
Page 2
HB 607 Money Services Businesses by Steele
CS/HB 721 Paid Family Leave Insurance by Insurance & Banking Subcommittee,
Chaney
HB 737 Secondhand Goods by Barnaby, Mooney
HB 743 Estoppel Letters by Fabricio
CS/HB 745 Emergency Communications by Energy, Communications & Cybersecurity
Subcommittee, McFarland
CS/HB 761 Telephone Solicitation by Civil Justice Subcommittee, Fabricio
HB 793 Collateral Protection Insurance on Real Property by Fernandez-Barquin
CS/CS/HB 861 Residential Loan Alternative Agreements by Judiciary Committee,
Regulatory Reform & Economic Development Subcommittee, Robinson, W.
CS/HB 895 Labor Pool Act by Regulatory Reform & Economic Development
Subcommittee, Basabe
CS/HB 1025 Government Vehicles by Energy, Communications & Cybersecurity
Subcommittee, Caruso
HM 1137 New Nuclear Energy by Overdorf
CS/HB 1221 Broadband Internet Service Providers by State Administration &
Technology Appropriations Subcommittee, Tomkow
CS/HB 1413 Health Care Expenses by Healthcare Regulation Subcommittee, Tramont
CS/HB 1437 Pub. Rec./Broadband Opportunity Program/DEO by Energy,
Communications & Cybersecurity Subcommittee, Esposito
HB 1459 Registration Fees for Malt Beverage Brands and Labels by Yeager
CS/HB 1521 Facility Requirements Based on Sex by Regulatory Reform & Economic
Development Subcommittee, Plakon
HB 7041 Space Florida by Regulatory Reform & Economic Development Subcommittee,
Sirois
Page 3
Consideration of the following proposed committee bill(s):
PCB COM 23-03 -- Natural Emergencies
PCB COM 23-04 -- Insurer Accountability
Consideration of the following proposed committee substitute(s):
PCS for CS/HB 677 -- Electronic Payment Transactions
V. Closing Remarks
VI. Adjournment
HB 57
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 57 Motor Vehicle Liability Policies
SPONSOR(S): Truenow
TIED BILLS: IDEN./SIM. BILLS: CS/SB 516
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY
CHIEF
1) Insurance & Banking Subcommittee 15 Y, 0 N Herendeen Lloyd
2) Commerce Committee Fletcher Hamon
SUMMARY ANALYSIS
Owners or operators of motor vehicles must insure against losses from liability for bodily injury, death, and
property damage. They may do so by purchasing auto insurance from an insurance carrier authorized to do
business in Florida by the Office of Insurance Regulation (OIR), or by obtaining a certificate of self-insurance
from the Florida Department of Highway Safety and Motor Vehicles (HSMV) after demonstrating the ability to
cover potential losses arising out of the ownership, maintenance, or use of a motor vehicle. HSMV does not
recognize insurance issued by a risk retention group as a method of proving financial responsibility, unless the
risk retention group holds a certificate of authority issued by OIR.
The bill amends Florida’s Financial Responsibility Law to permit risk retention groups, which are authorized by
federal law, to provide the required motor vehicle coverage to group members. Unlike state-authorized
insurers, risk retention groups only sell insurance to eligible members, do not submit rate and form filings to
state regulators, and are not members of state guaranty associations that manage claims if an insurer becomes
insolvent.
Specifically, the bill permits risk retention groups that have strong ratings from A.M. Best Company (an “A” or
higher rating for financial strength and “VIII” or higher for financial size) to provide commercial auto insurance
coverage to their members and shareholders.
The bill has an unknown but likely insignificant negative fiscal impact on state government and no impact on
local governments. The bill has positive and negative impacts on the private sector.
The bill has an effective date of July 1, 2023.
FULL ANALYSIS
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Florida’s Financial Responsibility Law
Chapter 324, F.S., sets forth the financial responsibility laws for owners or operators of motor vehicles,
whether they be used for personal or commercial purposes.
In general, the owner or operator of a motor vehicle must insure against losses from liability for bodily injury,
death, and property damage by 1) purchasing auto insurance from an insurance carrier authorized by OIR
to do business in Florida;1 or 2) obtaining a certificate of self-insurance from HSMV after demonstrating the
ability to cover potential losses arising out of the ownership, maintenance, or use of a motor vehicle. 2
OIR licenses insurance carriers and reviews policy contracts and premium rates of its licensees.3 An
insurance carrier may not deliver an auto insurance policy in Florida unless the policy includes coverages for
both personal injury and property damage.4
HSMV administers the Financial Responsibility Law by requiring all licensed insurance companies to provide
electronic notification of all policies that are issued or cancelled. 5 Vehicle owners must show proof of personal
injury protection and property damage liability coverage to register a vehicle, 6 and must provide proof of
bodily injury liability coverage if they are involved in an accident and charged with a moving violation. 7 A
vehicle owner who fails to maintain continuous coverage may have his or her driver’s license and registration
suspended for up to three years.8
Required coverages vary based on the use of a motor vehicle.
For individual motorists, the law requires $10,000 in personal injury protection and $10,000 for property
damage.9 However, if a driver of a private passenger vehicle has caused an accident involving bodily injury
or death, the required minimum bodily injury liability coverage is $10,000 per person and $20,000 per
accident.10 Additionally, if a driver has been convicted of driving under the influence of alcohol, the motorist
must maintain minimum bodily injury liability coverage of $10,000 per person and $20,000 per accident for
three years after the license is reinstated.11
For leased motor vehicles, the lessor is not liable for the actions of a lessee so long as the lease requires
$100,000/$300,000 bodily injury liability and $50,000 property damage liability or not less than $500,000
combined property damage and bodily injury liability.12
For-hire passenger vehicles like taxicabs and limousines must have bodily injury liability coverage of
$125,000 per person and $250,000 per occurrence; and $50,000 property damage coverage. 13
1 S. 324.021(8), F.S.
2 Ss. 324.161 and 324.171, F.S. Also see Florida Department of Highway Safety and Motor Vehicles, Self-Insuranc e,
https://www.flhsmv.gov/ins urance/self-insurance/firm/ (last visited Feb. 10, 2023).
3 Ss. 624.404, 627.062, 627.410, and 627.4102.
4 S. 627.7275, F.S.
5 Ss. 324.0221, 324.252, and Rules 15A-3.007, and 15A-3.012, F.A.C.
6 Ss. 324.022, 324.023, and Rule 15A-3.006, F.A.C.
7 S. 324.021, F.S. Also see, Florida Highway Safety and Motor Vehicles, Florida Insurance Requirements ,
https://www.flhsmv.gov/ins urance/ (last visited Feb. 10, 2023).
8 S. 324.0221, F.S.
9 Ss. 324.021(7), § 324.022, and 627.736, F.S.
10 Ss. 324.051, 324.031, 324.061, F.S.
11 S. 324.023, F.S.
12 S. 324.021(9), F.S.
13 Ss. 322.032, 324.021(8), and 324.151, F.S.
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Commercial motor vehicles operating on Florida’s highways are subject to state and federal regulations
related to size and weight limits, safety standards, and registration requirements. Commercial vehicles that
weigh 10,001 pounds or more, and engage in interstate commerce or haul hazardous materials, are subject
to federal law, where required coverages range from $750,000 to $5 million. 14 Commercial vehicles that
weigh 26,001 pounds or more, operate only within Florida, and do not transport hazardous materials are
subject to Florida law, where required coverages range from $50,000 to $300,000. 15
Voluntary coverages include collision (repairs the motor vehicle), comprehensive (losses from events other
than collision, like fire or theft or wind or vandalism), uninsured motorist (losses that exceed no-fault coverage
when an at-fault driver has no liability insurance or inadequate liability insurance), medical (for losses that
exceed no-fault coverage), rental reimbursement, and accidental death or dismemberment.
When the owner or operator of a motor vehicle purchases liability insurance to satisfy the financial
responsibility law, the policy must be issued by an insurance company authorized to do business in Florida. 16
When an owner or operator self-insures a vehicle or fleet of vehicles, the owner or operator must provide
audited financial statements to HSMV showing an unencumbered net worth that satisfies the Financial
Responsibility Law.17
Risk Retention Groups
Federal law treats risk retention groups – which may sell insurance only to eligible members – differently
than traditional insurance companies.
Authorized insurers must be licensed in every state in which they operate and the domicile state serves as
the primary regulator. Risk retention groups need to be licensed as a liability insurer in only one state; further,
those that were chartered prior to 1985 may operate under the laws of Bermuda or the Cayman Islands. 18
State regulators may require risk retention groups to comply with state laws relating to claim settlement and
false or fraudulent acts, pay premium taxes, register with the designated state agent for service of process,
and submit to financial exams if such exam has not been completed by the s tate in which the risk retention
group is chartered.19
States may not require a risk retention group to participate in any insolvency guaranty association. 20
However, states may require notice that insurance provided by a risk retention group is not protec ted by an
insolvency guaranty association.21 Unlike authorized insurers, risk retention groups do not submit rate and
form filings with a state regulator. Instead, risk retention groups apportion risk among their members; thus,
rates are based on an actuarial analysis of the membership and policies can be tailored to suit the needs of
the membership.22
Members of a risk retention group must be engaged in similar businesses or activities that have similar
exposures due to the type of business, trade, product, service, premises, or operations.23
Risk retention groups may only provide liability insurance; the law defines liability insurance as coverage for
liability for damages to persons or property arising out of any business, trade, product, professional service,
14 49 CFR § 387.9 (2022).
15 Ss. 207.002(1), 320.01(25), and 627.7415, F.S.
16 S. 324.021(8), F.S.
17 S. 324.171, F.S.
18 15 U.S.C. § 3901(a)(4) and s. 627.942(9), F.S.
19 15 U.S.C. § 3902(a)(1).
20 15 U.S.C. § 3902(a)(2).
21 15 U.S.C. § 3902(a)(1).
22 National Association of Insurance Commissioners, Risk Retention Groups, Risk Retention Groups (naic.org) (last
visited Feb. 10, 2023).
23 15 U.S.C. §3901(a)(4)(F) and s. 627.942(9), F.S.
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premise, operation, or activity of a state or local government. 24 Liability insurance does not include an
employer’s liability to its employees; thus, risk retention groups may not issue workers’ compensation
insurance policies to their members.25
Risk retention groups may operate in Florida if they obtain a certificate of authority as a liability insurer, or
are licensed in another state and provide a copy of their business plan and annual financial statement to OIR
and designate the Chief Financial Officer as agent for service of process.26 According to OIR, 140 risk
retention groups are licensed in a state other than Florida and registered to do business in Florida. 27
Risk retention groups licensed in Florida pay the same premium taxes as Florida-licensed insurers.28 Risk
retention groups registered to operate in Florida but licensed in another state pay the same premium taxes
as surplus lines insurers that are allowed to sell lines of insurance that consumers cannot obtain from Florida-
licensed insurers.29 All risk retention groups operating in Florida must use agents who are licensed and
appointed in Florida. 30
American Contractors Insurance Group
American Contractors Insurance Group Ltd. of Bermuda (ACIG) is a risk retention group that is owned by 41
construction companies and affiliated with American Contractors Insurance Company Risk Retention Group
(ACIG RRG) of Texas which writes general liability and auto coverages for its members and is registered to
do business in Florida. According to company representatives, ACIG provides auto liability insurance for 17
of its 41 member companies, including 7 member companies that have active operations in Florida.
ACIG is also affiliated with ACIG Insurance Company of Illinois, which writes workers’ compensation
coverages; ACIG Insurance Agency, Inc. of Texas, which coordinates customer service); and American
Contractors Risk Purchasing Group, Inc., of Texas, which acts as a purchasing group for professional,
pollution, and cyber liability coverages.31
The International Risk Management Institute describes “fronting” as the use of a licensed, admitted insurer
to issue an insurance policy on behalf of a self-insured organization or captive insurer without transferring
any risk. The risk of loss under the policy remains with the self-insured entity or captive insurer, but the
authorized insurer (and, in the event of insolvency, the guaranty association the insurer belongs to) assumes
a credit risk because it would be required to honor the policy if the insured fails to do so. This provides proof
of coverage that is needed to satisfy financial responsibility laws.
The Florida Insurance Code32 describes a “fronting company” as “an authorized insurer which by reinsurance
or otherwise generally transfers more than 50 percent to one unauthorized insurer which does not meet the
requirements” to be an accredited or trusteed reinsurer in Florida. 33
Further, s. 624.404(4)(a), F.S., states: “No authorized insurer shall act as a fronting company for any
unauthorized insurer which is not an approved reinsurer.”
24 15 U.S.C. 3901(a)(2)(A) and s. 627.942(9)(g), F.S.
25 15 U.S.C. 3901(a)(2)(B) and s. 627.942(4), F.S.
26 Ss. 627.943 and 627.944, F.S.
27 Florida Office of Insurance Regulation, Active Company Search, https://companysearch.myfloridacfo.gov/ (last visited
Feb. 10, 2023).
28 S. 627.943(4), F.S. Pursuant to s. 624.509, F.S., premium taxes (typically 1.75 percent of the premium) are collected by
the licensed insurer and paid to the Department of Revenue on or before March 1 of each year.
29 S. 627.944 (3), F.S. Pursuant to s. 626.932, F.S., premium taxes (4.94 percent of the premium) are collected by the
licensed insurance agent and paid to the Department of Financial Services on a quarterly basis; premiums are also
reported to the Florida Surplus Lines Service Office (FSLSO) which oversees the reporting requirements of eligible
surplus lines insurers. The FSLSO website is https://www.fslso.com/.
30 Ss. 627.943(5) and 627.944(12), F.S.
31 American Contractors Insurance Group, Organization Chart – Construction Industry Shareholders,
https://www.acig.com/assets/docs/ACIG_Organization_Chart.pdf (last visited Feb. 10, 2023).
32 Chapters 624-632, 634, 635, 636, 641, 642, 648, and 651 constitute the “Florida Insurance Code.”
33 S. 624.404(4)(b), F.S.
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Florida law explicitly prohibits:
An authorized insurer or licensed motor vehicle service agreement company from acting as a
fronting company for any unauthorized insurer or unlicensed motor vehicle service agreement
company.34
An authorized insurer or licensed home warranty association from acting as a fronting company
for any unauthorized insurer or unlicensed home warranty association. 35
An authorized insurer or licensed service warranty association from acting as a fronting company
for any unauthorized insurer or unlicensed service warranty association. 36
The Insurance Code does not contemplate the situation presented by ACIG RRG, where an authorized
insurer acts as a fronting company for a risk retention group.
Representatives of ACIG stated that ACIG RRG must use a fronting policy to write auto liability insurance for
Florida members, so they can provide evidence of auto liability coverage. According to documentation
provided by company representatives, ACIG retains the entirety of its $5 million auto liability limit by
reinsuring the fronting insurer at 100 percent.
Each of the 7 ACIG members with operations in Florida pays a fronting fee of $25,000 annually. This creates
a $175,000 annual expense that would be avoided if ACIG RRG were permitted to directly issue auto liability
policies to its Florida members. Collectively, the 7 companies insure about 975 vehicles and pay annual auto
liability premiums of $1,954,944.
ACIG has an “A” rating from A.M. Best, in category VIII, which applies to companies with a policyholder
surplus of $100 million-$250 million.
Effect of the Bill
The bill permits the owner or operator of a motor vehicle to provide proof of financial responsibility by
obtaining an insurance policy from a risk retention group that: 1) has an “A” or higher rating for financial
strength, and “VIII” or higher for financial size by the A.M. Best Company, and 2) only provides commercial
coverage to its members and shareholders.
The bill would permit ACIG RRG to directly provide commercial auto insurance to its Florida members,
annually saving each of the 7 Florida members $25,000 each. Additionally, according to OIR, 18 of the risk
retention groups active in Florida meet the rating qualifications under the bill.37
B. SECTION DIRECTORY:
Section 1. Amends s. 324.021, F.S.
Section 2. Provides an effective date of July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
34 S. 634.241, F.S.
35 S. 634.326, F.S.
36 S. 634.429, F.S.
37 Florida Office of Insurance Regulation, Agency Analysis of 2023 Senate Bill 516 (HB 57’s Senate counterpart), p. 2
(Mar. 12, 2023).
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If adopted, HSMV will have to engage in structural testing to confirm successful file transfers with
any risk retention group that directly insures its members in Florida. This is needed to ensure that
HSMV receives timely insurance information about policies that are issued or cancelled. This
administrative cost would be absorbed within current resources.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill will have a positive impact on some businesses by allowing members of risk retention groups to
achieve savings by obtaining required motor vehicle insurance coverage directly their risk retention
group, in certain circumstances. It will have a negative impact on those insurers that have acted as
fronting companies for the placement of coverage by risk retention groups.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None provided by the bill.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 57 2023
1 A bill to be entitled
2 An act relating to motor vehicle liability policies;
3 amending s. 324.021, F.S.; revising the definition of
4 the term "motor vehicle liability policy" to include
5 certain policies issued by specified risk retention
6 groups; defining the term "risk retention group";
7 providing an effective date.
8
9 Be It Enacted by the Legislature of the State of Florida:
10
11 Section 1. Subsection (8) of section 324.021, Florida
12 Statutes, is amended, and subsection (12) is added to that
13 section, to read:
14 324.021 Definitions; minimum insurance required.—The
15 following words and phrases when used in this chapter shall, for
16 the purpose of this chapter, have the meanings respectively
17 ascribed to them in this section, except in those instances
18 where the context clearly indicates a different meaning:
19 (8) MOTOR VEHICLE LIABILITY POLICY.—Any owner's or
20 operator's policy of liability insurance furnished as proof of
21 financial responsibility pursuant to s. 324.031, insuring such
22 owner or operator against loss from liability for bodily injury,
23 death, and property damage arising out of the ownership,
24 maintenance, or use of a motor vehicle in not less than the
25 limits described in subsection (7) and conforming to the
Page 1 of 2
CODING: Words stricken are deletions; words underlined are additions.
hb0057-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 57 2023
26 requirements of s. 324.151, issued by any insurance company
27 authorized to do business in this state or by a risk retention
28 group described in subsection (12). The owner, registrant, or
29 operator of a motor vehicle is exempt from providing such proof
30 of financial responsibility if he or she is a member of the
31 United States Armed Forces and is called to or on active duty
32 outside this state or the United States, or if the owner of the
33 vehicle is the dependent spouse of such active duty memb er and
34 is also residing with the active duty member at the place of
35 posting of such member, and the vehicle is primarily maintained
36 at such place of posting. The exemption provided by this
37 subsection applies only as long as the member of the armed
38 forces is on such active duty outside this state or the United
39 States and the owner complies with the security requirements of
40 the state of posting or any possession or territory of the
41 United States.
42 (12) RISK RETENTION GROUP.—A risk retention group
43 operating in accordance with s. 627.943 or s. 627.944 which is
44 rated "A" or higher for financial strength and "VIII" or higher
45 for financial size category by A.M. Best Company and which only
46 provides commercial coverage for its members and shareholders.
47 Section 2. This act shall take effect July 1, 2023.
Page 2 of 2
CODING: Words stricken are deletions; words underlined are additions.
hb0057-00
COMMERCE COMMITTEE
HB 57 by Rep. Truenow
Relating to Motor Vehicle Liability Policies
AMENDMENT SUMMARY
April 7, 2023
Amendment 1 by Rep. Truenow (Line 28): The amendment authorizes a surplus lines insurer
that meets applicable financial strength requirements to provide commercial motor vehicle
coverage.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 57 (2023)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/O OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Commerce Committee
2 Representative Truenow offered the following:
3
4 Amendment (with title amendment)
5 Remove line 28 and insert:
6 group described in subsection (12). In addition, any surplus
7 lines insurer as defined in s. 626.914(2) which is rated "A" or
8 higher by A.M. Best Company may provide coverage to meet
9 financial responsibility requirements for commercial motor
10 vehicles. The owner, registrant, or
11
12 -----------------------------------------------------
13 T I T L E A M E N D M E N T
14 Remove lines 4-6 and insert:
15 the term "motor vehicle liability policy" and defining the term
16 "risk retention group" for purposes of ch. 324, F.S.;
379043 - h0057-line 28.docx
Published On: 4/7/2023 7:12:36 PM
Page 1 of 1
CS/HB 221
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 221 Sales of Firearms and Ammunition
SPONSOR(S): Regulatory Reform & Economic Development Subcommittee, Snyder and others
TIED BILLS: IDEN./SIM. BILLS: CS/SB 214
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform & Economic Development 11 Y, 4 N, As CS Mortellaro Anstead
Subcommittee
2) Agriculture & Natural Resources Appropriations 9 Y, 5 N Byrd Pigott
Subcommittee
3) Commerce Committee Mortellaro Hamon
SUMMARY ANALYSIS
A Merchant Category Code (MCC) is a code used by credit card payment associations that categorizes where
a credit card purchase is made without showing the specific items that were purchased. Payment organizations
use the MCC codes to classify different merchants and businesses by goods or services so that they can track
and restrict transactions, report taxes, interchange promotions, gather information on purchasing behaviors, file
reports with the Internal Revenue Service (IRS), determine rewards, identify high-risk business models and
prohibited business types, and track customer spending.
Historically, MCCs have allowed retailers who sell firearm and ammunition to be categorized under general
retail or sporting goods stores. Recently, the International Organization for Standardization (ISO) updated the
MCC and created a new MCC for firearm and ammunition retailers. Some argue that the information gathered
from the use of this new code could be construed as a firearm registry maintained by private entities.
The bill:
Prohibits payment settlement entities, merchant acquiring entities, or third-party settlement
organizations from classifying merchants or assigning them with an MCC that identifies them as sellers
of firearms or ammunition; and
Authorizes the Department of Agriculture and Consumer Services (DACS) to conduct investigations of
alleged violations and bring an administrative action seeking to impose a Class III administrative fine for
violations.
The fiscal impact to state government is indeterminate.
The effective date of the bill is July 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation of Merchant Category Codes When Purchasing Firearms
Merchant Category Codes
The International Organization for Standardization (ISO) is an independent, non-governmental
organization that develops international standards. One of the standards that the ISO created are the
Merchant Category Codes (MCC). The MCCs are used by Mastercard, Visa, Amex, and other major
card payment organizations.1 The MCCs are a 4-digit number that is assigned to a merchant by an
acquiring bank in compliance with the card association. Once the business opens a merchant account
with the MCC, the business is classified by that market segment and it allows the business to begin
accepting credit cards as a form of payment.2
Payment organizations use the MCC codes to classify different merchants and businesses by the
goods or services they offer so that they can track and restrict transactions, report taxes, interchange
promotions, gather information on purchasing behaviors, file reports with the Internal Revenue Service
(IRS), determine rewards, identify high-risk business models and prohibited business types, and track
customer spending.3
Merchant Category Codes in Relation to Firearms
An MCC shows where the purchase is made, but it does not show the specific items that were
purchased. Each credit card network has its own master list of MCCs. There are many codes that are
being standardized based on the ISO standard, but some financial organizations, third party settlement
organizations, or processors have their own MCC lists. 4
Historically, retailers who sell firearms and ammunition have been assigned an MCC of general retail
stores or sporting goods stores.5 On September 7, 2022, the ISO approved an application by a New
York-based bank to adopt a new MCC for firearm retailers, which includes a gun code for “gun and
ammunition shops.”6 MCCs adopted by the ISO are not required to be used, but card associations like
Visa, MasterCard, and American Express, have all agreed to use the new MCC. 7 However, Visa and
MasterCard have not yet updated their lists to include the new MCC for firearm retailers.8
1 The ISO, About Us & Retail financial services – Merchant category codes, https://www.iso.org/about-
us.html#:~:text=ISO%20is%20an%20independent%2C%20non-
governmental%20international%20organization%20with,support%20innovation%20and%20provide%20solutions%20to%20g lobal%
20challenges (last visited Feb. 28, 2023).
2 Dwyer, B., CardFellow, Merchant Category Code: Reporting & Rates (2020), Apr. 6, 2020,
https://www.cardfellow.com/blog/merchant-category-code-mcc/ (last visited Feb. 28, 2023).
3 Citi, Merchant Category Codes, Treasury and Trade Solutions, available at https://www.citibank.com/tts/solutions/commercial-
cards/assets/docs/govt/Merchant-Category-Codes.pdf (last visited Feb. 28, 2023).
4 Motola, C., Merchant Maverick, Merchant Category Codes (MCC): All You Need to Know , May 26, 2021,
https://www.merchantmaverick.com/ merchant-category-code-mcc/ (last visited Feb. 28, 2023).
5 Kerber, R., Reuters, Global Standards Body Approves New Merchant code for Gun Sellers, Sept. 9, 2022,
https://www.reuters.com/world/exclusive-global-standards-body-approves-new-merchant-code-gun-sellers-2022-09-09/ (last visited
Feb. 28, 2023).
6 See id at The ISO.
7 Mion, L., Fox Business, Visa, MasterCard, Amex, to Categorize Gun Store Sales Sepa rately, Sept. 11, 2022,
https://www.foxbusiness.com/economy/visa-mastercard-amex-categorize-gun-store-sales-separately (last visited Mar. 1, 2023).
8 Visa MCC Manual; MasterCard, Quick Reference Booklet – Merchant Edition, Nov. 15, 2018,
https://www.mastercard.us/content/dam/mccom/en-us/documents/rules/quick-reference-booklet-merchant-edition.pdf (last visited Feb.
17, 2023) (In Visa’s and MasterCard’s MCC lists, noting firearms under codes 5099 and 5999, for durable goods (not elsewhere
classified) and miscellaneous and specialty retail shops, respectively).
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Advocates in support of the new MCC note that this helps to identify and report suspicious activity, such
as unusually large purchases of weapons or ammunition. 9 Opponents of the new MCC, have concerns
that the new MCC may be too close to a national registry for gun owners.10
On September 20, 2022, twenty-four attorneys general, including the Florida Attorney General, sent a
letter to Visa, MasterCard, and American Express, expressing concerns about the possibility to misuse
the new MCC by tracking data which could infringe upon consumers privacy. In addition, they stated it
could result in “arbitrary disparate treatment” of firearm retailers and consumers because the new MCC
would only capture firearm purchases from gun retailers but not from department stores.11
Parties Involved with Transactions
Even the smallest credit or debit card transactions involve a host of parties that facilitate the exchange
between the merchant and customer.
These parties include the cardholder, the merchant, the merchant bank, the payment processors, the
issuing banks and the card associations.12 In a typical transaction, a cardholder will purchase a good or
service from a merchant through the use of a credit or debit card. At this time the merchant will send a
payment authorization request to the merchant’s payment processor who in turn submits the
transaction to the correct card association.13 The card association will then send this authorization
request to the issuing bank where the transaction will either be approved or denied. 14 The issuing
bank’s response will then be sent back to the card association which sends the information to the
merchant bank who sends the information to the merchant.15
The parties:
The cardholder is the buyer in the transaction and has a line of credit or a checking account with
an issuing bank.
The merchant is the seller in the transaction and in choosing to accept debit card and credit
card purchases will partner with a payment processor.
A payment processor sends payment information to the customer’s card association.
A card association acts as an intermediary between the issuing bank (customer’s bank) and the
merchant bank as they relay both payment information to the issuing bank and the issuing
bank’s response to the merchant bank.
The issuing bank receives purchase information from the card association and either approves
or denies the transaction. It will inform the card association of its determination. Upon
determination from the issuing bank for a transaction the card association will inform the
merchant bank.
The merchant bank is the bank of the merchant and will inform the merchant of the issuing
bank’s determination.16
9 CBS New York Team, CBS New York, New York Leaders Call for Establishment of Merchant Category Code for Gun and
Ammunition Stores, Aug. 30, 2022, https://www.cbsnews.com/newyork/news/new-york-gun-ammunition-store-merchant-category-
code/#:~:text=August%2030%2C%202022%20%2F%207%3A 44%20PM%20%2F%20CBS,merchant%20category%20code%20for
%20gun%20and%20ammunit ion%20stores (last visited Mar. 1, 2023).
10 Marek, L. Industry Dive. Visa Raises Concerns on New Gun Code, Sept. 14, 2022, https://www.paymentsdive.com/news/visa-
concerns-new-gun-code-payments-nra/631845/ (last visited Mar. 1, 2023).
11 Skrmetti, J. and others, Letter from Attorneys General to Card Associations regarding MCCs, Tennessee State Government,
International Organization for Standardization (ISO), https://www.tn.gov/content/dam/tn/attorneygeneral/documents/pr/2022/pr22-36-
letter.pdf (last visited Mar. 1, 2023).
12 FIS Global, How Credit Card Processing Works, https://www.fisglobal.com/en/insights/merchant-solutions-worldpay/article/how-
credit-card-processing-works (last visited Mar. 7, 2023).
13 Id.
14 Id.
15 Id.
16 Id.
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A credit card transaction is made up of three processes, the authorization process, the settlement
process, and the funding process.17 The authorization process happens near instantaneously and can
either end in approval or denial.18 The authorization process reflects the issuing bank’s approval or
denial of a transaction which is then relayed through the payment network to the merchant.
Current Situation of Credit Card Laws
Relevant Federal Credit Card Laws
Anti-money Laundering Laws
Anti-money Laundering Laws, aim to detect and prevent money laundering and deter financial criminal
activity.19 One provision in these laws, authorizes the Secretary of the Treasury to require any financial
institution or those related to financial institutions, to report any suspicious transactions. 20 Banks,
federally and non-federally regulated, are required to establish anti-money laundering programs which
must meet specified requirements.21 This includes ongoing monitoring to identify and report suspicious
activity and transactions.22 The U.S. Department of Homeland Security website contains “Signs of
Suspicious Activity” which displays images and a description of categories for signs of suspicious
activities, one of which is firearm related.23
Internal Revenue Code
Payment settlement entities are required to make an annual return to the Internal Revenue Service
(IRS) which contains, the gross amount of the reportable payment transactions 24 for each participating
payee.25 The Secretary has the authority to determine the time, form, and manner in which the return
must be made,26 and is reported through Form 1099-K. The form contains a box to report the MCC
assigned to the participating payee. The MCC may be excluded from the form if the filing entity uses an
industry classification system other than or in addition to MCCs or is a third-party settlement
organization.27 Broadly speaking, the MCCs classify businesses based on what they predominately
furnish, services or goods. Payments for services are reportable whereas payments for goods are not
reportable.28
Relevant Florida Credit Card Laws
Relevant Florida laws that relate to credit cards 29 are contained in the Financial Institutions Code and
the Consumer Protection Act.30 Florida’s Credit Card Bank Act provides that a credit card account
between a domestic lender or credit card bank and a borrower must be governed by the laws of Florida
or federal law unless otherwise expressly agreed in writing by the parties but such writing may not
supersede the interest rate provisions of s. 655.954, F.S.31 Florida consumer protection laws set out a
limited number of protections relating to credit cards, such as provisions relating to issuing credit cards,
17 Id.
18 This process plays out in full when a debit or credit card is either accepted or rejected at a payment terminal.
19 31 U.S.C. s. 5311(2) and (3).
20 31 U.S.C. s. 5318(g)(1).
21 31 C.F.R. 1020.210.
22 31 C.F.R. 1020.10(a)(2)(v)(B) and (b)(2)(v)(B).
23 The United States Department of Homeland Security, Recognize Suspicious Activity, https://www.dhs.gov/see-something-say-
something/recognize-the-signs (last visited Mar. 1, 2023).
24 26 U.S.C. s. 6050W(c), defines “reportable payment transaction” as any payment card or third-party network transaction.
25 26 U.S.C. s. 6050W(a).
26 Id.
27 IRS, Instructions for Form 1099-K (01/2022), Jan. 2022, https://www.irs.gov/pub/irs-pdf/i1099k.pdf (last visited Mar. 1, 2023).
28 Id.
29 S. 658.995(2)(a), F.S.
30 S. 655.005(1)(i), F.S.
31 S. 658.995(2)(d), F.S.
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imposing a surcharge, or printing certain information on a merchant’s receipt. 32 No provisions were
identified that explicitly restrict or address the use of MCCs.
Similar Pending Legislation in Other States Related to MCCs
Pending legislation that addresses similar issues:
Kentucky HB 221: Purchases from Licensed Gun Creates a new section to prohibit credit card
Dealers (2023) companies, financial institutions, or other persons
from using an MCC or other method that categorizes
purchases from licensed gun dealers separately from
other retailers. 33
Mississippi HB 1110: Second Amendment Prohibits a financial institution or its agent from
Financial Privacy Act (2023) - PASSED requiring or “assigning” a specific firearm or
ammunition merchant code to any firearms business
located in Mississippi. 34
Texas HB 2041: Notice to Consumers Regarding Requires notice given to consumers when a financial
Firearm or Ammunition Transactions (2023-2024) institution generates or collects prohibited firearm or
ammunition purchase
information. 35
West Virginia SB 555: Prohibiting Banks and Prohibits banks and payment networks from tracking
Payment Networks from Tracking Firearm-related firearm-related data and outlines penalties regarding
Data and Outlining Penalties (2023) the state and local purchasing card contract if banks
and payment networks track firearm-related data. 36
Current Situation Firearms Records
Background
The Second Amendment states “a well-regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed.” 37 As with many amendments in
the Constitution, the courts have had to evaluate how far the right extends. The Supreme Court has
determined that the individual right to keep and bear arms is not unlimited. 38 Many cases have
evaluated the right to bear arms, how far the right extends, and the records that can be kept regulating
gun owners. 39
Federal Records Requirements
In 1938, the Federal Firearms Act40 created a regulation for those selling certain firearms. Firearm
sellers were required to obtain a Federal Firearms License to maintain records with the name and
address of those who bought a firearm.41
32 S. 658.995(3), F.S.
33 KY HB 221.
34 Mike Maharrey, Mississippi House Passes Bill to Prohibit Using Credit Card Information to Track Firearms Purchases, Tenth
Amendment Center, Feb. 13, 2023, https://blog.tenthamendmentcenter.com/2023/02/mississippi-house-passes-bill-to-prohibit-using-
credit-card-information-to-track-firearms-
purchases/#:~:text=Titled%20the%20Second%20Amend ment%20Financial%20Privacy%20Act%2C%20the,code%20to%20any%20f
irearms%20business%20located%20in%20Mississippi (last visited Mar. 1, 2023).
35 TX HB 2041.
36 WV SB 555.
37 U.S. Const. am. 2.
38 Heller v. District of Columbia, 670 F. 3d 1244, 1254-55 (D.C.Cir.2011).
39 New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 213 L. Ed. 2d 387, 142 S. Ct. 2111 (2022).
40 15 U.S.C. s. 901-910.
41 Robert Longley, Timeline of Gun Control in the United States, ThoughtCo, Jan. 8, 2023, https://www.thoughtco.com/us -gun-
control-timeline-3963620 (last visited Mar. 1, 2023).
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Following the assassinations of President John F. Kennedy, Senator Robert Kennedy, and Dr. Martin
Luther King, Jr., Congress passed the Gun Control Act of 1968 (GCA). 42 The GCA required individuals
engaged in the business of dealing in firearms to obtain a federal license, prohibited transfers of
firearms to certain persons, restricted the interstate transportation, and regulated the importation not
suitable for sporting purposes.
Persons engaged in the business of manufacturing, importing, or dealing in firearms - referred to as
"federal firearms licensees" (FFLs) - must obtain a license from the Secretary of the Treasury. The
license entitles the holder to ship, transport, and receive firearms in interstate or foreign commerce.
The FFL must maintain records of all acquisitions and dispositions of firearms and comply with
applicable state and local laws in transferring firearms. The recordkeeping requirements help allow
some crime guns to be traced. Combined with other obligations and restrictions imposed on firearms
dealers, manufacturers, and importers, these requirements help provide a basis for investigating illegal
firearms trafficking.43
In 1986, the Firearm Owners’ Protection Act (FOPA) 44 passed which amended many provisions in the
Gun Control Act of 1968.45 Congress loosened several controls it had previously established in the
GCA, including records requirements.46
The provisions that prohibit any rule or regulation from requiring records to be kept related to
firearms also prohibits those records from being recorded or transferred to a facility owned,
managed, or controlled by the United States, any State, or any political subdivision. FOPA also
directly prohibits any registration systems of firearms, firearm owners, or firearms transactions from
being established. However, the Secretary can inquire into a firearm in the course of a criminal
investigation.47
The law requires a licensed importer, manufacturer, or dealer to handle records of firearms
transactions and national instant criminal background checks in a certain manner.48 In certain instances
the criminal background check system must destroy all records.49 In other instances, the dealer
through the attorney general must report certain information, such as the identity of the person, to the
local law enforcement authority.50
Florida Firearm Regulations
The Florida Constitution guarantees:
SECTION 8. Right to bear arms.—
42 P.L. 90-351, OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968, Senate Report (Judiciary Committee) No. 90-
1097, Apr. 29, 1968.
43 The Enforcement Branch of the Alcohol and Tobacco Tax Division of the Internal Revenue Service initially enforced the GCA. O n
July 1, 1972, the Bureau of Alcohol, Tobacco and Firearms (ATF) was created as an independent Bureau within the Treasury
Department.
44 18 U.S.C ch. 44 s. 921 et seq.
45 18 U.S.C. ch. 44 s. 921 (amended)
46 Id. See Gun Violence Reduction: National Integrated Firearms Violence Reduct ion Strategy Appendix C, History Of Federal
Firearms Laws In The United States,
https://www.justice.gov/archive/opd/AppendixC.htm#:~:text=Kennedy%2C%20Senator%20Robert%20Kennedy%2C%20and,the%20
federal%20regulation%20of%20firearms . (It also opened up certain loopholes allowing gun sales from people that are not dealers.
Allowing FFLs to temporarily conduct business at gun shows; narrowing the scope of those who are required to be licensed: "hobby,"
or who "sell all or part of a personal collection;" reducing the criminal penalties for certain recordkeeping offenses; prohibiting ATF
from computerizing firearms purchase records; permitting sales of ammunition without a license; allowing a convicted felon to obtain
firearms where the convicting jurisdiction automatically restored the felons' civil rights.)
47 18 U.S.C. s. 926(a).
48 18 U.S.C. s. 922(t).
49 18 U.S.C. s. 922(t)(2).
50 18 U.S.C. s. 925B(a).
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(a) The right of the people to keep and bear arms in defense of themselves and of the
lawful authority of the state shall not be infringed, except that the manner of bearing arms
may be regulated by law.
(b) There shall be a mandatory period of three days, excluding weekends and legal
holidays, between the purchase and delivery at retail of any handgun. ….”51
Generally, a person does not need a license to possess or use a firearm in Florida. However, a person
is prohibited from openly carrying a firearm on or about his or her person unless the person is a law
enforcement officer or engaged in certain activities, such as hunting, camping, or military service.52,53
Florida Records Related Requirements
The Department of Agriculture and Consumer Services (DACS) is in charge of issuing a concealed
weapon or firearm license to a person who meets the specified qualifications under s. 790.06, F.S.54
Personal identifying information for applicants or concealed weapons licensees are confidential and
exempt from public records disclosure requirements under s. 119.07(1), F.S., and s. 24(a), Art. 1 of the
State Constitution.55
Any records pertaining to a buyer or transferee who is not prohibited from receipt or transfer of a
firearm under federal or Florida law and whose records are created by the Florida Department of Law
Enforcement (FDLE) to conduct the criminal history record check are confidential and exempt. These
records may not be disclosed by the FDLE to any person or to another agency. The FDLE must
destroy these records after communicating the approval or non-approval numbers to the licensee and
no later than 48 hours after responding to the licensee’s request.56 However, the FDLE may maintain
records of National Crime Information Center transactions as required under federal law, and may
keep:
A log of dates of requests for criminal history records checks; 57
Unique approval and non-approval numbers;
License identification numbers; and
Transaction numbers corresponding to such dates for a period of no longer than 2 years or as
otherwise required by law.
These provisions may not be construed to allow the State of Florida to maintain records containing the
names of purchasers or transferees who receive unique approval numbers or to keep records of firearm
transactions.58 Any current or former officer or employee of the FDLE or law enforcement agency who
intentionally or maliciously violates these provisions is guilty of a third-degree felony.59
Effect of the Bill
The bill includes legislative findings indicating that MCC codes, without a “substantial and historical
business need” or requirement imposed by law, may frustrate the right to keep and bear arms and
violate the reasonable privacy rights of lawful purchasers of firearms and ammunition.
The bill prohibits an entity involved in facilitating or processing payment card transactions, including but
not limited to, a financial institution, an acquirer, a payment card network, or a payment card issuer
from classifying a merchant of firearms or ammunition under the MCC for firearms or ammunition. A
merchant of firearms or ammunition may be assigned or may use an MCC for general merchandise
51 Art. I, s. 8(a), FLA. CONST .
52 S. 790.053(3), F.S.
53 S. 790.053(1), F.S.
54 S. 790.06(2), F.S.
55 S. 790.0601(1), F.S.
56 S. 790.065(4)(a), F.S.
57 S. 790.065(4)(b), F.S.
58 S. 790.065(4)(c), F.S.
59 S. 790.065(4)(d), F.S.
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retailers or sporting goods retailers. A contractual provision contrary to these provisions is void as
violating the public policy of this state.
The bill authorizes DACS to:
Investigate alleged violations;
Bring an administrative action seeking to impose a class III $10,000 fine60 for each violation; and
Enforce violations.
The effective date of the bill July 1, 2023.
B. SECTION DIRECTORY:
Section 1: Amends s. 790.335(1)(a), F.S., to include an additional Legislative finding; Adds s.
790.335(2)(b), F.S., related to prohibitions; amends the penalties in 790.335(4);
Authorizes DACS to investigate, and bring an administrative action and impose a Class
III $10,000 fine.
Section 2: Provides an effective date of July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
Indeterminate. The bill authorizes DACS to investigate and bring an administrative action and
impose a Class III $10,000 fine.
2. Expenditures:
Indeterminate. DACS would be granted statutory authority under this bill to investigate alleged
violations of the MCC. DACS would also be empowered to bring an administrative action and
impose a Class III administrative fine for each violation. The Office of Agricultural Law Enforcement
Regulatory Investigation Section would be in charge of investigating the unlawfully classified retailer
violations and the Office of General Counsel would initiate and litigate the administrative actions.
Currently, DACS is unable to determine the fiscal impact on the department.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
60 S. 570.971(1)(c), F.S.
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1. Applicability of Municipality/County Mandates Provision:
None.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill may require DACS to create rules related to regulatory investigations. 61
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 9, 2023, the Regulatory Reform & Economic Development Subcommittee adopted one
amendment and reported the bill favorably as a committee substitute.
The committee substitute:
Includes additional entities covered under the bill.
Authorizes a merchant of firearms or ammunition to be assigned or to use a merchant category
code for general merchandise retailers or sporting goods retailers.
Specifies that agreements or contractual provisions contrary to the provisions in the bill are void and
in violation of the public policy of this state.
Authorizes DACS to enforce violations.
This analysis is drafted to the committee substitute as passed by the Regulatory Reform and Economic
Development Subcommittee.
61 S. 493.6103, F.S.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 221 2023
1 A bill to be entitled
2 An act relating to sales of firearms and ammunition;
3 amending s. 790.335, F.S.; providing legislative
4 findings; prohibiting payment settlement entities,
5 merchant acquiring entities, or third party settlement
6 organizations from assigning merchant category codes
7 or otherwise classifying merchants of firearms or
8 ammunition separately from general merchandise or
9 sporting goods retailers; prohibiting entities
10 involved in facilitating or processing payment card
11 transactions from assigning to or requiring a merchant
12 to use certain merchant category codes; authorizing a
13 merchant of firearms or ammunition to be assigned or
14 to use certain merchant category codes; specifying
15 that any agreement or contractual provision to the
16 contrary is void and in violation of the public policy
17 of this state; authorizing the Department of
18 Agriculture and Consumer Services to investigate
19 certain alleged violations and bring administrative
20 actions; providing an exception to complaint
21 investigations by state attorneys; making technical
22 changes; providing an effective date.
23
24 WHEREAS, the International Standards Organization, based in
25 Switzerland, recently approved a new merchant category code for
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26 firearm and ammunition merchants, and
27 WHEREAS, firearm and ammunition merchants historically have
28 been classified as sporting goods retailers or general
29 merchandise retailers, which has been sufficient for credit card
30 companies' business needs, and
31 WHEREAS, according to advocates for the new merchant
32 category code, the new code will allow credit card companies to
33 flag "suspicious" transactions, ostensibly for the purpose of
34 predicting and preventing future gun violence, and
35 WHEREAS, proponents indicate that the new merchant category
36 code is a "first step" but have given no guidance as to how to
37 distinguish suspicious activity from lawful sales, and
38 WHEREAS, the use of either merchant category code cannot
39 distinguish the sale of a firearm from the sale of a gun safe by
40 a firearms and ammunition merchant, and
41 WHEREAS, the use of the new merchant category code to
42 detect suspicious activities predicting future unlawful activity
43 will likely discourage financial institutions from serving
44 lawful retailers of firearms and ammunition and chill the lawful
45 exercise of Second Amendment rights, and
46 WHEREAS, current law requires a firearm retailer to conduct
47 a criminal history records check on a potential purchaser before
48 delivering a firearm to the purchaser, and
49 WHEREAS, the new merchant category code may result in
50 credit card companies reporting law abiding citizens to a law
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51 enforcement agency based on overbroad definitions of suspicious
52 activity and the creation of a de facto gun registry and
53 watchlists of law abiding citizens, and
54 WHEREAS, the use of the new merchant category code will
55 likely make the job of law enforcement officers more difficult,
56 as those purchasing a firearm from a firearm retailer for an
57 unlawful purpose will likely purchase firearms with cash,
58 cryptocurrency, or other means that are difficult or impossible
59 to trace, and
60 WHEREAS, developing appropriate regulations for the sale of
61 firearms and ammunition while protecting the right of self -
62 defense is the role of democratically elected officials, not the
63 role of unelected bankers and foreign organizations, NOW,
64 THEREFORE,
65
66 Be It Enacted by the Legislature of the State of Florida:
67
68 Section 1. Paragraph (a) of subsection (1) and subsections
69 (2) and (4) of section 790.335, Florida Statutes, are amended to
70 read:
71 790.335 Prohibition of registration of firearms;
72 electronic records.—
73 (1) LEGISLATIVE FINDINGS AND INTENT.—
74 (a) The Legislature finds and declares that:
75 1. The right of individuals to keep and bear arms is
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76 guaranteed under both the Second Amendment to the United States
77 Constitution and s. 8, Art. I of the State Constitution.
78 2. A list, record, or registry of legally owned firearms
79 or law-abiding firearm owners is not a law enforcement tool and
80 can become an instrument for profiling, harassing, or abusing
81 law-abiding citizens based on their choice to own a firearm and
82 exercise their Second Amendment right to keep and bear arms as
83 guaranteed under the United States Constitution. Further, such a
84 list, record, or registry has the potential to fall into the
85 wrong hands and become a shopping list for thieves.
86 3. A list, record, or registry of legally owned firearms
87 or law-abiding firearm owners is not a tool for fighting
88 terrorism, but rather is an instrument that can be used as a
89 means to profile innocent citizens and to harass and abuse
90 American citizens based solely on their choice to own firearms
91 and exercise their Second Amendment right to keep and bear arms
92 as guaranteed under the United States Constitution.
93 4. The creation or maintenance of records of purchases of
94 firearms or ammunition or the tracking of sales made by a
95 retailer of firearms or ammunition by a nongovernmental entity,
96 including a financial institution, without a substantial and
97 historical business need or a requirement imposed by law, may
98 frustrate the right to keep and bear arms and violate the
99 reasonable privacy rights of lawful purchasers of firearms or
100 ammunition.
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101 5.4. Law-abiding firearm owners whose names have been
102 illegally recorded in a list, record, or registry are entitled
103 to redress.
104 (2) PROHIBITIONS.—
105 (a) A No state governmental agency or local government,
106 special district, or other political subdivision or official,
107 agent, or employee of the such state or other governmental
108 entity or any other person, public or private, may not shall
109 knowingly and willfully keep or cause to be kept any list,
110 record, or registry of privately owned firearms or any list,
111 record, or registry of the owners of those firearms.
112 (b) A payment settlement entity, merchant acquiring
113 entity, or third party settlement organization as those terms
114 are defined in s. 6050W of the Internal Revenue Code may not
115 assign a merchant category code to or otherwise classify a
116 merchant that is a seller of firearms or ammunition separately
117 from general merchandise retailers or sporting goods retailers.
118 (c) An entity involved in facilitating or processing a
119 payment card transaction, including, but not limited to, a
120 financial institution, an acquirer, a payment card network, or a
121 payment card issuer, may not assign to a merchant, or require a
122 merchant to use, a merchant category code that classifies the
123 merchant as a firearms or ammunition retailer or a similar
124 classification. A merchant of firearms or ammunition may be
125 assigned or may use a merchant category code for general
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hb0221-01-c1
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 221 2023
126 merchandise retailers or sporting goods retailers. Any agreement
127 or contractual provision to the contrary is void in violation of
128 the public policy of this state.
129 (4) PENALTIES.—
130 (a) Any person who, or entity that, violates paragraph
131 (2)(a) a provision of this section commits a felony of the third
132 degree, punishable as provided in s. 775.082 or s. 775.083.
133 (b) Except as required by the provisions of s. 16, Art. I
134 of the State Constitution or the Sixth Amendment to the United
135 States Constitution, no public funds may not shall be used to
136 defend the unlawful conduct of any person charged with a
137 violation of this section, unless the charges against the such
138 person are dismissed or the such person is determined to be not
139 guilty at trial. Notwithstanding this paragraph, public funds
140 may be expended to provide the services of the office of public
141 defender or court-appointed conflict counsel as provided by law.
142 (c) The governmental entity, or the designee of the such
143 governmental entity, in whose service or employ a list, record,
144 or registry was compiled in violation of paragraph (2)(a) this
145 section may be assessed a fine of up to not more than $5
146 million, if the court determines that the evidence shows that
147 the list, record, or registry was compiled or maintained with
148 the knowledge or complicity of the management of the
149 governmental entity. The Attorney General may bring a civil
150 cause of action to enforce the fines assessed under this
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 221 2023
151 paragraph.
152 (d) The Department of Agriculture and Consumer Services
153 may investigate alleged violations of paragraph (2)(b) or
154 paragraph (2)(c) and, upon finding a violation, bring an
155 administrative action seeking to impose an administrative fine
156 pursuant to s. 570.971 in the Class III category for each
157 violation of paragraph (2)(b) or paragraph (2)(c) for each
158 instance of an unlawfully classified retailer.
159 (e)(d) The state attorney in the appropriate jurisdiction
160 shall investigate complaints of criminal violations of this
161 section, except for alleged violations of paragraph (2)(b) or
162 paragraph (2)(c), and shall prosecute violators, where evidence
163 indicates that a violation may have occurred, shall prosecute
164 violators.
165 Section 2. This act shall take effect July 1, 2023.
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hb0221-01-c1
COMMERCE COMMITTEE
HB 221 by Rep. Snyder
Sales of Firearms and Ammunition
AMENDMENT SUMMARY
April 10, 2023
Amendment 1 by Rep. Snyder (strike-all):
• Makes technical changes to align the bill with the Senate companion.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 221 (2023)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/O OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Commerce Committee
2 Representative Snyder offered the following:
3
4 Amendment (with title amendment)
5 Remove everything after the enacting clause and insert:
6 WHEREAS, the International Standards Organization, based in
7 Switzerland, recently approved a new merchant category code for
8 firearm and ammunition merchants, and
9 WHEREAS, firearm and ammunition merchants historically have
10 been classified as sporting goods retailers or general
11 merchandise retailers, which has been sufficient for credit card
12 companies' business needs, and
13 WHEREAS, according to advocates for the new merchant
14 category code, the new code will allow credit card companies to
15 flag "suspicious" transactions, ostensibly for the purpose of
16 predicting and preventing future gun violence, and
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 221 (2023)
Amendment No. 1
17 WHEREAS, proponents indicate that the new merchant category
18 code is a "first step" but have given no guidance as to how to
19 distinguish suspicious activity from lawful sales, and
20 WHEREAS, the use of either merchant category code cannot
21 distinguish the sale of a firearm from the sale of a gun safe by
22 a firearms and ammunition merchant, and
23 WHEREAS, the use of the new merchant category code to
24 detect suspicious activities predicting future unlawful activity
25 will likely discourage financial institutions from serving
26 lawful retailers of firearms and ammunition and chill the lawful
27 exercise of Second Amendment rights, and
28 WHEREAS, current law requires a firearm retailer to conduct
29 a criminal history records check on a potential purchaser before
30 delivering a firearm to the purchaser, and
31 WHEREAS, the new merchant category code may result in
32 credit card companies reporting law-abiding citizens to a law
33 enforcement agency based on overbroad definitions of suspicious
34 activity and the creation of a de facto gun registry and
35 watchlists of law-abiding citizens, and
36 WHEREAS, the use of the new merchant category code will
37 likely make the job of law enforcement officers more difficult,
38 as those purchasing a firearm from a firearm retailer for an
39 unlawful purpose will likely purchase firearms with cash,
40 cryptocurrency, or other means that are difficult or impossible
41 to trace, and
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 221 (2023)
Amendment No. 1
42 WHEREAS, developing appropriate regulations for the sale of
43 firearms and ammunition while protecting the right of self -
44 defense is the role of democratically elected officials, not the
45 role of unelected bankers and foreign organizations, NOW,
46 THEREFORE,
47
48 Be It Enacted by the Legislature of the State of Florida:
49
50 Section 1. Paragraph (a) of subsection (1) and subsections
51 (2) and (4) of section 790.335, Florida Statutes, are amended to
52 read:
53 790.335 Prohibition of registration of firearms;
54 electronic records.—
55 (1) LEGISLATIVE FINDINGS AND INTENT.—
56 (a) The Legislature finds and declares that:
57 1. The right of individuals to keep and bear arms is
58 guaranteed under both the Second Amendment to the United States
59 Constitution and s. 8, Art. I of the State Constitution.
60 2. A list, record, or registry of legally owned firearms
61 or law-abiding firearm owners is not a law enforcement tool and
62 can become an instrument for profiling, harassing, or abusing
63 law-abiding citizens based on their choice to own a firearm and
64 exercise their Second Amendment right to keep and bear arms as
65 guaranteed under the United States Constitution. Further, such a
66 list, record, or registry has the potential to fall into the
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 221 (2023)
Amendment No. 1
67 wrong hands and become a shopping list for thieves.
68 3. A list, record, or registry of legally owned firearms
69 or law-abiding firearm owners is not a tool for fighting
70 terrorism, but rather is an instrument that can be used as a
71 means to profile innocent citizens and to harass and abuse
72 American citizens based solely on their choice to own firearms
73 and exercise their Second Amendment right to keep and bear arms
74 as guaranteed under the United States Constitution.
75 4. The creation or maintenance of records of purchases of
76 firearms or ammunition or the tracking of sales made by a
77 retailer of firearms or ammunition by a nongovernmental entity,
78 including a financial institution, without a substantial and
79 historical business need or a requirement imposed by law, may
80 frustrate the right to keep and bear arms and violate the
81 reasonable privacy rights of lawful purchasers of firearms or
82 ammunition.
83 5. Law-abiding firearm owners whose names have been
84 illegally recorded in a list, record, or registry are entitled
85 to redress.
86 (2) PROHIBITIONS.—
87 (a) A No state governmental agency or local government,
88 special district, or other political subdivision or official,
89 agent, or employee of the such state or other governmental
90 entity or any other person, public or private, may not shall
91 knowingly and willfully keep or cause to be kept any list,
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 221 (2023)
Amendment No. 1
92 record, or registry of privately owned firearms or any list,
93 record, or registry of the owners of those firearms.
94 (b) A payment settlement entity, merchant acquiring
95 entity, or third party settlement organization as those terms
96 are defined in s. 6050W of the Internal Revenue Code may not
97 assign a merchant category code to or otherwise classify a
98 merchant that is a seller of firearms or ammunition separately
99 from general merchandise retailers or sporting goods retailers.
100 (c) An entity involved in facilitating or processing a
101 payment card transaction, including, but not limited to, a
102 financial institution, an acquirer, a payment card network, or a
103 payment card issuer, may not assign to or require a merchant to
104 use a merchant category code that classifies the merchant as a
105 firearms or ammunition retailer or places the merchant in a
106 similar classification. A merchant of firearms or ammunition may
107 be assigned or may use a merchant category code for general
108 merchandise retailers or sporting goods retailers. Any agr eement
109 or contractual provision to the contrary is void in violation of
110 the public policy of this state.
111 (4) PENALTIES.—
112 (a) Any person who, or entity that, violates paragraph
113 (2)(a) a provision of this section commits a felony of the third
114 degree, punishable as provided in s. 775.082 or s. 775.083.
115 (b) Except as required by the provisions of s. 16, Art. I
116 of the State Constitution or the Sixth Amendment to the United
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 221 (2023)
Amendment No. 1
117 States Constitution, no public funds may not shall be used to
118 defend the unlawful conduct of any person charged with a
119 violation of this section, unless the charges against the such
120 person are dismissed or the such person is determined to be not
121 guilty at trial. Notwithstanding this paragraph, public funds
122 may be expended to provide the services of the office of public
123 defender or court-appointed conflict counsel as provided by law.
124 (c) The governmental entity, or the designee of the such
125 governmental entity, in whose service or employ a list, re cord,
126 or registry was compiled in violation of paragraph (2)(a) this
127 section may be assessed a fine of up to not more than $5
128 million, if the court determines that the evidence shows that
129 the list, record, or registry was compiled or maintained with
130 the knowledge or complicity of the management of the
131 governmental entity. The Attorney General may bring a civil
132 cause of action to enforce the fines assessed under this
133 paragraph.
134 (d) The Department of Agriculture and Consumer Services
135 may investigate alleged violations of paragraph (2)(b) or
136 paragraph (2)(c) and, upon finding a violation, bring an
137 administrative action seeking to impose an administrative fine
138 pursuant to s. 570.971 in the Class III category for each
139 violation of paragraph (2)(b) or paragraph (2)(c) for each
140 instance of an unlawfully classified retailer.
141 (e) The state attorney in the appropriate jurisdiction
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 221 (2023)
Amendment No. 1
142 shall investigate complaints of criminal violations of this
143 section, except for alleged violations of paragraph (2)(b) or
144 paragraph (2)(c), and shall prosecute violators, where evidence
145 indicates that a violation may have occurred, shall prosecute
146 violators.
147 Section 2. This act shall take effect July 1, 2023.
148
149 -----------------------------------------------------
150 T I T L E A M E N D M E N T
151 Remove everything before the enacting clause and insert:
152 An act relating to sales of firearms and ammunition;
153 amending s. 790.335, F.S.; providing legislative
154 findings; prohibiting payment settlement entities,
155 merchant acquiring entities, or third party settlement
156 organizations from assigning merchant category codes
157 or otherwise classifying merchants of firearms or
158 ammunition separately from general merchandise or
159 sporting goods retailers; prohibiting entities
160 involved in facilitating or processing payment card
161 transactions from assigning to or requiring a merchant
162 to use certain merchant category codes; authorizing a
163 merchant of firearms or ammunition to be assigned or
164 to use certain merchant category codes; specifying
165 that any agreement or contractual provision to the
166 contrary is void and in violation of the public policy
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 221 (2023)
Amendment No. 1
167 of this state; authorizing the Department of
168 Agriculture and Consumer Services to investigate
169 certain alleged violations and bring administrative
170 actions; providing an exception to complaint
171 investigations by state attorneys; making technical
172 changes; providing an effective date.
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CS/CS/HB 233
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 233 Next of Kin of Deceased Minors
SPONSOR(S): Constitutional Rights, Rule of Law & Government Operations Subcommittee, Regulatory
Reform & Economic Development Subcommittee, Michael and others
TIED BILLS: HB 789 IDEN./SIM. BILLS: CS/SB 490
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY
CHIEF
1) Regulatory Reform & Economic Development 13 Y, 0 N, As CS Mortellaro Anstead
Subcommittee
2) Constitutional Rights, Rule of Law & 11 Y, 0 N, As CS Wagoner Miller
Government Operations Subcommittee
3) Commerce Committee Mortellaro Hamon
SUMMARY ANALYSIS
Currently, Florida law provides a list of rights for victims and witnesses of crimes. There are several enumerated
rights for families of certain victims of crime, but no specific mandate that law enforcement agencies provide certain
investigative and contact information to the next of kin of deceased minors who were the victim of a homicide.
The bill defines “next of kin” and requires that, during the criminal investigation of the death of a minor, the law
enforcement agency that initiates or bears the primary responsibility for the investigation must provide the minor's
next of kin with all of the following information:
The contact information for the primary investigator and each law enforcement agency for the investigation.
The case number for the investigation, if applicable.
A list of the minor's personal effects and information on how the minor's next of kin can collect such personal
effects, unless providing the information would jeopardize or otherwise interfere with an active investigation.
Information regarding the status of the investigation, at the discretion of the law enforcement agency.
The bill prohibits the law enforcement agency from providing any of the above information if doing so would
jeopardize or otherwise interfere with an active investigation. The law enforcement agency is not required to provide
investigative records generated during its investigation to a minor's next of kin for inspection.
The bill does not appear to have a significant fiscal impact on local or state governme nts.
The bill provides an effective date of July 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
Investigation Materials
Under the Florida Constitution, victims of crime and their families are guaranteed certain rights and
protections.1 Florida law provides a list of rights for victims and witnesses in the criminal justice
system.2 The Department of Legal Affairs, the state attorneys, the Department of Corrections, the
Department of Juvenile Justice, the Florida Commission on Offender Review, the State Courts
Administrator and circuit court administrators, the Department of Law Enforcement, and every sheriff’s
department, police department, or other law enforcement agency are required to develop and
implement guidelines for the use of their respective agencies to achieve the statutory objectives.
Related to rights of a victim’s parent, guardian, or next of kin:
Law enforcement officers must distribute victim’s rights cards or brochures informing on the
right of the next of kin of a homicide victim to be informed, to be present, and to be heard when
relevant, at all crucial stages of a criminal or juvenile proceeding, to the extent that this right
does not interfere with the constitutional rights of the accused.3
In the case of a homicide, sexual offense, attempted murder or sexual offense, stalking, or
domestic violence, law enforcement officers or personnel of an organization that provides
assistance to the appropriate next of kin of the victim must request that the next of kin of the
victim complete a victim notification card, which provides a way of notification if a defendant is
released from custody.4
The chief administrator of a county jail, municipal jail, juvenile detention facility, or residential
commitment facility must make a reasonable attempt to notify the appropriate next of kin or
designated contact of a victim homicide, sexual offense, attempted murder or sexual offense,
stalking, or domestic violence before the defendant’s or offender’s release from custody, if the
victim notification card has been provided.5
The appropriate agency must provide notification of certain judicial and post judicial
proceedings to the parent or guardian of a minor victim and a relative of a homicide victim.
o A victim’s parent or guardian if the victim is a minor, or a victim’s next of kin may not be
excluded from any portion of any proceeding, unless the court determines such person’s
presence to be prejudicial.6
The state attorney must consult the guardian or family of a victim of a felony involving physical
or emotional injury, trauma, or homicide, in order to obtain the views of the victim or family
about the disposition of any criminal or juvenile case brought as a result of such crime. 7
Upon request, the state attorney must allow the victim’s parent or guardian if the victim is a
minor, or the victim’s next of kin in the case of a homicide to review a copy of the presentence
investigation report before the sentencing hearing if one was completed.
o Any confidential information that pertains to medical history, mental health, or substance
abuse and any information that pertains to any other victim must be redacted from the
copy of the report.
1 Art. I, s. 16, Fla. Const.
2 S. 960.001, F.S.
3 S. 960.001(1)(a)5., F.S.
4 S. 960.001(1)(b), F.S.
5 S. 960.001(1)(f), F.S.
6 S. 960.001(1)(e), F.S.
7 S. 960.001(1)(g)1., F.S.
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o Any person who reviews the report pursuant to this paragraph must maintain the
confidentiality of the report and may not disclose its contents to any person except
statements made to the state attorney or the court.8
The Department of Corrections must, upon request, notify the victim’s parent or guardian if the
victim is a minor, or the victim’s next of kin if the victim is a homicide victim if an inmate has
been approved for community work release.9
Curtis’ Law
In 1997, 16-year-old Curtis Williamson was murdered in California.10 Afterwards, his mother, Patricia
Ward, had difficulty obtaining information related to the investigation of his death. 11 Since then, his
mother moved to Florida and began pushing for greater investigation information access for parents of
deceased minors.12 An organization, Curtis’s & Co for Children Gone to Soon, Inc., was formed to
advocate for law reform nationwide to mandate that certain investigative and contact information be
made available to surviving family members in certain circumstances. 13 The proposed law is called
Curtis’ Law.14
In 2022, California passed SB 1268, a version of Curtis’ Law, which requires the law enforcement
agency that bears the primary responsibility for the investigation to provide a deceased minor victim’s
parent or guardian15 with the:16
Contact information of the primary law enforcement agency and the primary contact at such
agency;
Case number;
List of personal effects found with the minor and contact information to recover such effects,
unless doing so would interfere with an investigation; and
Status of the investigation, at the discretion of the law enforcement agency.
Law enforcement is not required to provide any information that would jeopardize or otherwise allow an
individual to interfere with the ongoing investigation or any records generated pursuant to their
investigation for inspection by a victim’s family. Law enforcement agencies providing information may
require any family member receiving the information to confirm their identity through a certified
declaration.17
Neither the Florida Constitution nor the statutory guidelines for fair treatment of victims of crime define
“family” or “next of kin.”
Next of Kin
Generally, “next of kin” means the nearest blood relation according to the law of consanguinity. 18
However, Florida statutes provide more specific definitions in different contexts. For example, in
proceedings pertaining to the protection or custody of children, “next of kin” is defined an adult relative
of a child who is the child’s brother, sister, aunt, uncle, or first cousin. 19 In the same statute, “family” is
8 S. 960.001(1)(g)2., F.S.
9 S. 960.001(1)(g)3., F.S.
10 Cole Heath, Action News Jax, Proposed Curtis Law would give families of murdered children informati on about their child's case,
https://www.actionnewsjax.com/news/local/proposed-curtis-law-would-give-families-of-murdered-ch ildren-information-about-their-
childs-case/502708049/ (last visited March 24, 2023).
11 Justice 4 Curtis, Our Story, https://justice4curtis.org/our-story/ (last visited March 24, 2023).
12 Action Jax News, supra note 39.
13 Justice 4 Curtis, supra note 40.
14 Justice 4 Curtis, Curtis Law, https://justice4curtis.org/the-proposed-law/ (last visited March 24, 2023).
15 Or immediate family if a parent or guardian cannot be located. “Immediate family” means the victim’s spouse, parent , guardian,
grandparent, aunt, uncle, brother, sister, and children or grandchildren who are related by blood, marriage, or adoption.
16 Cal. Penal Code § 679.09
17 Id.
18 Black’s Law Dictionary 1044 (6th Edition 1990).
19 S. 39.01(51), F.S.
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defined as a collective body of persons consisting of a child and parent, legal custodian, or adult
relative who live together or where there is a legal responsibility to care for the child, 20 “guardian” is
described as a relative, nonrelative, next of kin, or fictive kin who has physical custody of a child, 21 and
“parent” is the woman who gives birth to a child or the legal father or adoptive father. 22
Effect of the Bill
The bill, cited as Curtis’ Law, amends s. 960.001, F.S., to require that, during the investigation of the
death of a minor, the law enforcement agency that initiates or bears the primary responsibility for the
investigation must provide the minor's next of kin with all of the following information:
The contact information for the primary contact, if known, for the particular investigation, and if
more than one law enforcement agency is involved in the investigation, as well as the contact
information for each law enforcement agencies involved in the investigation.
The case number for the investigation, if applicable.
A list of the minor's personal effects that were found on or with the minor and information on
how the minor's next of kin can collect such personal effects. A law enforcement agency may
withhold the information if providing the information would jeopardize or otherwise interfere with
an active investigation.
Information regarding the status of the investigation, at the discretion of the law enforcement
agency.
The law enforcement agency may not provide any of the above information if doing so would jeopardize
or otherwise interfere with an active investigation. Further, the law enforcement agency is not required
to provide investigative records generated during its investigation to a minor's next of kin for inspection.
The bill adds cross-referenced definitions to describe “next of kin” to include “parent,” “guardian,”
“family,” and “next of kin” as defined in section 39.01, F.S.
B. SECTION DIRECTORY:
Section 1: Provides the act may be cited as “Curtis’ Law.”
Section 2: Amends s. 960.001, F.S., providing a definition and requiring certain law enforcement
agencies to provide certain investigation information.
Section 3: Provides an effective date of July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
20 S. 39.01(27), F.S.
21 S. 39.01(30), F.S. “Fictive Kin” is a person unrelated by birth, marriage, or adoption who has an emotionally significant relationship
with to a child. S. 39.01(28), F.S.
22 S. 39.01(56), F.S.
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Indeterminant. The bill may require more local agencies to comply with information requests by the
next of kin of deceased minors.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
Law enforcement agencies will need to create guidelines for transmitting certain investigative
information to a deceased child’s next of kin.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 9, 2023, the Regulatory Reform and Economic Development Subcommittee adopted one
amendment and reported the bill favorably as a committee substitute. The committee substitute:
Clarified when an employee does not need to give their employer advanced notice of using their
leave.
Removed recourse for a person who is denied leave.
Expanded the list of investigative information required to be given to parents or guardians of
deceased children to include contact information for any secondary law enforcement agencies.
Made clarifying and conforming changes.
On March 28, 2023 the Constitutional Rights, Rule of Law & Government Operations Subcommittee
adopted a PCS and reported the bill favorably as a committee substitute. The PCS removed the
requirement for leave for employees who had a family member that became a homicide victim. The
PCS clarified the definition of “next of kin.” Further, the PCS provided that if there is an investigation
into the death of a minor, the law enforcement agency responsible for the investigation is responsible
for providing information to the minor’s next of kin.
This analysis is drawn to the bill as amended by the Constitutional Rights, Rule of Law & Government
Operations Subcommittee.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/CS/HB 233 2023
1 A bill to be entitled
2 An act relating to the next of kin of deceased minors;
3 providing a short title; amending s. 960.001, F.S.;
4 defining the term "next of kin"; requiring law
5 enforcement agencies to provide certain information
6 during the investigation of the death of a minor;
7 providing an exception; providing construction;
8 providing an effective date.
9
10 Be It Enacted by the Legislature of the State of Florida:
11
12 Section 1. This act may be cited as "Curtis' Law."
13 Section 2. Paragraph (v) is added to subsection (1) of
14 section 960.001, Florida Statutes, to read:
15 960.001 Guidelines for fair treatment of victims and
16 witnesses in the criminal justice and juvenile justice s ystems.—
17 (1) The Department of Legal Affairs, the state attorneys,
18 the Department of Corrections, the Department of Juvenile
19 Justice, the Florida Commission on Offender Review, the State
20 Courts Administrator and circuit court administrators, the
21 Department of Law Enforcement, and every sheriff's department,
22 police department, or other law enforcement agency as defined in
23 s. 943.10(4) shall develop and implement guidelines for the use
24 of their respective agencies, which guidelines are consistent
25 with the purposes of this act and s. 16(b), Art. I of the State
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CODING: Words stricken are deletions; words underlined are additions.
hb0233-02-c2
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/CS/HB 233 2023
26 Constitution and are designed to implement s. 16(b), Art. I of
27 the State Constitution and to achieve the following objectives:
28 (v) Information concerning an investigation into the death
29 of a minor.—
30 1. For purposes of this paragraph, "next of kin" includes
31 "family," "guardian," "next of kin," and "parent" as those terms
32 are defined in s. 39.01.
33 2. During the investigation of the death of a minor, the
34 law enforcement agency that initiates or bears the primary
35 responsibility for the investigation must provide the minor's
36 next of kin with all of the following information:
37 a. The contact information for the primary contact, if
38 known, for the particular investigation, and if more than one
39 law enforcement agency is involved in the investigation, the
40 contact information for at least one of the secondary law
41 enforcement agencies involved in the investigation.
42 b. The case number for the investigation, if applicable.
43 c. A list of the minor's personal effects that were found
44 on or with the minor and information on how the minor's next of
45 kin can collect such personal effects. A law enforcement agency
46 may withhold the information in this sub-subparagraph if
47 providing the information would jeopardize or otherwise
48 interfere with an active investigation.
49 d. Information regarding the status of the investigation,
50 at the discretion of the law enforcement agency.
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CODING: Words stricken are deletions; words underlined are additions.
hb0233-02-c2
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/CS/HB 233 2023
51 3. This paragraph does not require a law enforcement
52 agency to provide any of the information under this paragraph if
53 doing so would jeopardize or otherwise interfere with an active
54 investigation.
55 4. This paragraph does not require a law enforcement
56 agency to provide investigative records generated during its
57 investigation to a minor's next of kin for inspection.
58 Section 3. This act shall take effect July 1, 2023.
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hb0233-02-c2
CS/HB 253
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 253 Regulation of Securities
SPONSOR(S): Insurance & Banking Subcommittee, Barnaby and others
TIED BILLS: IDEN./SIM. BILLS: CS/SB 180
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Insurance & Banking Subcommittee 18 Y, 0 N, As CS Sellas Lloyd
2) Commerce Committee Sellas Hamon
SUMMARY ANALYSIS
In Florida, the Securities and Investor Protection Act (the Act) regulates securities issued, offered, and sold in
the state of Florida. The Florida Office of Financial Regulation (OFR) regulates and registers the offer and sale
of securities in, to, or from Florida by firms, branch offices, and individuals affiliated with these firms. The Act
currently prohibits dealers, associated persons, and issuers from offering or selling securities in this state
unless registered with the OFR or specifically exempted. Additionally, all securities in Florida must be
registered with the OFR unless they meet a statutory exemption or are federally covered (i.e., under the
exclusive jurisdiction of the United States Securities Exchange Commission (SEC)).
The bill:
Eliminates the requirement for an issuer to register with OFR when selling securities.
Reduces the issuer filing fee for certain security offerings.
Creates a continuing education requirement based on the North American Securities Administration
Association (NASAA) model rule applicable to associated persons of investment advisers and federal
covered advisers. Currently, 12 states have adopted continuing education rules based on the NASAA
model rule.
Repeals the authority of OFR to require the filing of escrow agreements and to hold escrow funds.
Makes technical, clarifying, and modernizing updates throughout the Act, especially in regard to
registration requirements and exemptions.
Introduces or amends various definitions, including adding regulation of limited liability companies,
when acting as an issuer, throughout the Act.
The bill has no impact on local government. It has an insignificant negative impact on state government
revenues and no impact on state government expenditures. The bill has an indeterminate, likely minimal,
negative fiscal impact on the private sector.
The bill provides an effective date of October 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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DATE: 4/7/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Federal Securities Regulation
The federal Securities Exchange Act of 1934 (1934 Act) requires registration of securities market
participants like broker-dealers and exchanges.1 Generally, any person acting as “broker” or “dealer” as
defined in the 1934 Act must be registered with the United States Securities and Exchange
Commission (SEC) and join a self-regulatory organization (SRO), like the Financial Industry Regulatory
Authority (FINRA) or a national securities exchange. The 1934 Act broadly defines “broker” as “any
person engaged in the business of effecting transactions in securities for the account of others,” which
the SEC has interpreted to include involvement in any of the key aspects of a securities transaction,
including solicitation, negotiation, and execution.2 A “dealer” is “any person engaged in the business of
buying and selling securities for such person’s own account through a broker or otherwise. 3
Certain entities in the securities industry are often referred to as “broker-dealers” because such entities
are considered “brokers” when executing trades on behalf of customers, but are “dealers” when
executing trades for their own account. In addition to being registered with the SEC, broker-dealers
must comply with state registration requirements.
State Securities Regulation
In addition to federal securities laws, “Blue Sky Laws” are state laws that protect the investing public
from fraudulent sales practices and activities.4 In Florida, the Securities and Investor Protection Act, ch.
517, F.S. (Act), regulates securities issued, offered, and sold in the state of Florida. The Florida Office
of Financial Regulation’s (OFR) Division of Securities (Division) regulates and registers the offer and
sale of securities in, to, or from Florida by firms, branch offices, and individuals affiliated with these
firms in accordance with the Act and Rule Chapter 69W, Florida Administrative Code. 5
As of December 31, 2022, the Division had total registrants in the following areas:
Dealers: 2,421
Investment advisers: 8,096
Branch offices: 11,435
Associated Persons: 361,2006
The Act prohibits dealers, associated persons, and issuers from offering or selling securities in this
state unless registered with OFR or specifically exempted. 7 Additionally, all securities in Florida must
be registered with OFR unless they meet one of the exemptions in ss. 517.051 or 517.061, F.S., or are
federally covered (i.e., under the exclusive jurisdiction of the SEC). 8 Failure to meet the precise
1
15 U.S.C. §§ 78c(a)(4) and 78o; U.S. Securities and Exchange Commission, Guide to Brok er-Dealer Registration,
http://www.sec.gov/divisions/mark etreg/bdguide.htm#II (last visited Mar. 19, 2023).
2 Id.
3 15 U.S.C. § 78c(a)(5).
4 U.S. S ECURITIES & E XCHANGE COMMISSION, Blue Sk y Laws, http://www.sec.gov/answers/bluesky.htm (last visited Mar. 19,
2023).
5 Pursuant to s. 20.121(3), F.S., the Financial Services Commission (the Governor and Cabinet) serves as the OFR’s
agency head for purposes of rulemaking and appoints the OFR’s Commissioner, who serves as the agency head for
purposes of final agency action for all areas within the OFR’s regulatory authority.
6 Office of Financial Regulation, Agency Analysis of 2023 House Bill 253, p. 2 (Mar. 1, 2023).
7 s. 517.12, F.S.
8 S. 517.07, F.S. If a security is registered with the SEC, s. 517.082, F.S., requires the broker or issuer to notify OFR that
the security is registered with the SEC.
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requirements of these exemptions can subject the issuer to civil, criminal, and administrative liability for
the sale of unregistered securities, which is a third-degree felony in Florida.9 Civil remedies under the
Act include rescission and damages.10 In addition, issuers must comply with disclosure requirements in
state and federal laws that provide potential investors with full and fair disclosures regarding the
securities.
The Act requires the following individuals or businesses to be registered with OFR under s. 517.12,
F.S., before selling or offering to sell any securities in or from offices in this state, or selling securities to
persons in this state from offices outside this state: 11
Dealers, which include:12
o Any person, other than an associated person registered under ch. 517, F.S., who
engages as a broker or principal in the business of offering, buying, selling, or otherwise
dealing or trading in securities issued by another person.
o Any issuer who through persons directly compensated or controlled by the issuer
engages in the business of offering or selling securities which are issued (or proposed to
be issued) by the issuer.
Investment advisers, which include any person who receives compensation and engages in the
business of advising others as to the value of securities or as to the advisability of investments
in, purchasing of, or selling of securities, except a dealer whose performance of these services
is solely incidental to the conduct their business as a dealer and who receives no special
compensation for such services.13 Investment advisors do not include a “federal covered
adviser.”14
Associated persons, which include:15
o With respect to a dealer or investment adviser, any of the following:
Any partner, officer, director, or branch manager of a dealer or investment
adviser or any person occupying a similar status or performing similar functions;
Any individual directly or indirectly controlling or controlled by such dealer or
investment adviser, other than an employee whose function is only clerical or
ministerial; or
Any individual, other than a dealer, employed, appointed, or authorized by a
dealer, investment adviser, or issuer to sell securities in any manner or act as an
investment adviser as defined in s. 517.021, F.S.
o With respect to a federal covered adviser, any person who is an investment adviser
representative and who has a place of business in this state.
Self-Regulatory Organizations
Formed as a result of a 2007 merger between the National Association of Securities Dealers and
certain operational arms of the New York Stock Exchange, 16 FINRA is the largest private self-regulatory
organization for all securities firms doing business in the United States. 17 In addition to operating the
largest securities arbitration forum in the United States, FINRA operates the Central Registration
Depository and the Investment Adviser Registration Depository, both which are central databases for
registration, reporting, and disclosure information for the securities industry. 18
9 S. 517.302(1), F.S.
10 S. 517.211(3-5), F.S.
11 S. 517.12(1), F.S.
12 S. 517.021(6)(a), F.S. The term “dealer”, as defined under Florida law, encompasses the definitions of “broker” and
“dealer” under federal law.
13 S. 517.021(14)(a), F.S.
14 S. 517.021(9), (14)(b)9., F.S. A federal covered adviser must be registered under federal law and must provide a
notice-filing to OFR. Ss. 517.021 and 517.1201, F.S.
15 S. 517.021(2), F.S.
16 FINRA, NASD and NYSE Member Regulation Combine to Form the Financial Industry Regulatory Authority,
https://www.finra.org/media-center/news-releases/2007/nasd-and-nyse-member-regulation-combine-form-financial-
industry (last visited Mar. 19, 2023).
17 FINRA, https://www.finra.org/#/ (last visited Mar. 19, 2023).
18 NASAA, CRD & IARD, https://www.nasaa.org/industry-resourc es/crd-iard/ (last visited Mar. 19, 2023).
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NASAA’s Model Rule on Investment Adviser Representative Continuing Education
The North American Securities Administrators Association (NASAA) is a voluntary, international,
association whose membership consists of 67 state, provincial, and territorial securities
administrators.19 Formed in 1919, NASAA is the “oldest international organization devoted to investor
protection.”20 NASAA advocates on behalf of state securities agencies in North America that are
responsible for capital formation and investor protection. 21 NASAA also coordinates training and
education seminars for securities agency staff22 and creates model rules for implementation amongst
its members.23
On November 30, 2020, NASAA adopted a model rule for the implementation of continuing education
(CE) programs for investment adviser representatives (IARs). 24 Among other things, the model rule:
Requires IARs of both state-registered and federal covered investment advisers seeking
registration or renewal of IAR registration to complete 12 CE credits each year;
Provides that IARs must complete six credits of regulatory and ethics content and six credits of
compliance and practice content;
Allows IARs to select courses that appeal to their interests and suit their business models, so
long as such courses meet the credit requirements and are approved content for the CE
program;
Permits IARs to satisfy either some or all of the model rule’s CE requirements through
completion of the IAR’s home state’s CE requirements and completion of CE courses required
to be completed by IARs who maintain certain professional designations and those required to
be completed for registration as an agent of a dealer, provided certain criteria are met;
Provides that course providers and course content must be approved by NASAA; and
Requires an IAR who does not complete the CE requirement by the annual deadline to renew
as “CE inactive;”
Under the model rule, IARs are responsible for ensuring that completed CE credits are reported to
FINRA, NASAA’s vendor for program tracking. NASAA has implemented a course reporting fee of $3
per credit hour. Individual course costs will vary depending on the course and provider selected.
Currently, 12 NASAA member jurisdictions have adopted CE requirements similar to those proposed in
the rule, namely, Arkansas, Colorado, Kentucky, Maryland, Michigan, Mississippi, Oklahoma, Oregon,
South Carolina, Vermont, Washington, D.C., and Wisconsin. 25
Effect of the Bill
Definitions
The bill creates the following definitions:
“Accredited investor” has the same definition as that in SEC Rule 501, 17 C.F.R. s. 230.501,
which includes:
o Any bank, savings and loan associations, other institutions defined in section 3(a) of the
federal Securities Act of 1933 (1933 Act), brokers or dealers, investment advisers,
insurance companies, or investment companies;
19 NASAA, Welcome to NASAA, https://www.nasaa.org/about-us/ (last visited Mar. 19, 2023).
20 Id.
21 Id.
22 Id.
23 See NASAA, NASAA Model Rule on Investment Adviser Representative Continuing Education (Model Rule 2002-
411(h) or 1956-204(B)(6)-CE ), https://www.nasaa.org/wp-content/uploads/2020/10/ NASAA-IAR-CE-Model-Rule.pdf (last
visited, Mar. 19, 2023).
24 Id.
25 NASAA, https://www.nasaa.org/industry-resources/investment-advisers/investment-adviser-representative-continuing-
education/iar-ce-map/ (last visited, Mar. 19, 2023).
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o Any private business development company as defined in section 202(a)(22) of the
Investment Advisers Act of 1940;
o Any organization described in section 501(c)(3) of the Internal Revenue Code that is not
formed for the specific purpose of acquiring securities offered with total assets in excess
of $5,000,000;
o Any director, executive officer, or general partner of the issuer of the securities being
offered or sold, or any director, executive officer, or general partner of a general partner
of that issuer; or
o Any natural person whose individual net worth, or joint net worth with that person’s
spouse or spousal equivalent, exceeds $1,000,000 (subject to specific calculation
restrictions).
The bill amends the following definitions:
“Associated person” is now defined by a party’s relation to a dealer or to an investment adviser.
o With respect to a dealer, an associated person is a natural person who is employed,
appointed, or authorized by a dealer and who represents the dealer in effecting the
purchase or sale of a security.
The term does not include a dealer or a partner, officer, or director of a dealer
unless such person is specified in the group above. The term also does not
include a dealer’s employee whose function is only clerical or ministerial.
o With respect to an investment adviser, an associated person is an individual, including,
but not limited to, a partner, officer, director, or branch manager who is employed by or
associated with, or is subject to the supervision or control of an investment adviser
registered under this chapter, and such person:
Makes recommendations or otherwise gives investment advice regarding
securities;
Manages client accounts or portfolios;
Determines which recommendations or advice regarding securities should be
given;
Receives compensation to solicit, offer, or negotiate for the sale of investment
advisory services; or
Supervises employees who perform a function outlined above.
o With respect to an investment adviser, associated person does not include an
investment adviser or an employee whose function is only clerical or ministerial.
“Dealer” is defined as any person, other than an associated person of a dealer, that engages,
for all or part of the person’s time, directly or indirectly, as agent or principal in the business of
offering, buying, selling, or otherwise dealing or trading in securities issued by another person.
The term does not include the following:
o A licensed practicing attorney who renders or performs any services in connection with
the regular practice of the attorney’s profession.
o A bank authorized to do business in the state, except a nonbank subsidiary of a bank.
o A trust company having trust powers that it is authorized to exercise in this state, which
renders or performs services in a fiduciary capacity incidental to the exercise of its trust
powers.
o A wholesaler selling exclusively to dealers.
o A person buying and selling for the person’s own account exclusively through a
registered dealer or stock exchange.
o An issuer.
o A natural person representing an issuer in the purchase, sale, or distribution of the
issuer’s own securities if such person meets certain criteria.
“Guaranty” is amended to clarify that a “writing” means “an agreement in writing.”
“Intermediary” is amended to clarify that an intermediary facilitates an offer or sale of a security
of an issuer with a principal place of business in Florida through the intermediary’s website.
“Investment adviser” is amended to have a parallel structure to the new definition of “dealer.”
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The bill also amends various definitions to include the use of gender-neutral terms, to provide inclusion
of any amendments to referenced federal securities law, and to specifically include references to limited
liability companies.
Viatical Settlements
The bill amends s. 517.072, F.S. to include provisions relating to viatical settlements for organizational
purposes that use to reside in s. 517.081, F.S. The provisions were not substantially changed.
Registration Procedure
The bill amends s. 517.081, F.S. to allow for all issuers meeting certain criteria, instead of just
corporations, to use simplified offering circular to register securities. The bill reduces the issuer filing fee
of $1,000 to $200 for offerings that are below the amount provided in s. 3(b) of the 1933 Act. The bill
also provides that the office shall deem an application to register a security abandoned if the issuer has
failed to complete a timely application, as specified by commission rule.
Registration by Notification; Federal Registration Statements
The bill provides that the office will consider an application for registration by notification abandoned if
the SEC has not declared effective the applicant’s federal registration statement within 180 days after
the applicant’s filing.
Revocation or Denial of Registration of Securities
The bill amends this section to include “investigations” in addition to “examinations” in various
provisions as these provisions are applicable to both examinations and investigations conducted by the
office.
The bill replaces the “demonstrated any evidence of unworthiness” standard for revocation or denial of
a securities registration with the “engaged in any action that would be grounds for revocation, denial, or
suspension under s. 517.161(1), F.S.” standard.
The bill removes the standard of “is in any other way dishonest.” The bill also removes the standard of
revoking or denying a registration based on an issuer failing to timely complete any application for
registration filed with the office. This provision is, instead, incorporated within ss. 517.081 and 517.082,
F.S.
The bill requires that the office must provide notice of the entry of an order suspending the rights to sell
securities to the issuer personally or by mail. This amendment eliminates the ability of the office to
provide such notice by telephone confirmed in writing or by telegraph.
Registration of Dealers, Associated Persons, Intermediaries, and Investment Advisers
The bill eliminates the requirement that issuers register with the office to sell securities. The bill also
clarifies which exempt transactions the registration requirement applies to as well as the meaning of
“securities business.”
The bill eliminates the requirement that the office finds the applicant to be of “good repute and
character.” Instead, the office is tasked with finding that the applicant complied with the “applicable
registration provisions.” The bill provides the office shall register the application “unless the applicant is
otherwise disqualified for registration pursuant to law.”
Continuing Education Requirements for Associated Persons of Investment Advisers and Federal
Covered Advisers
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The bill creates s. 517.1214, F.S. which provides a continuing education requirement for the associated
persons of an investment adviser or a federally covered adviser. Starting in the year ending Decem ber
31, 2024, the associated person of an investment adviser or a federal covered investment adviser shall
complete continuing educational content offered by a person that NASAA or NASAA’s designee has
authorized to provide the required continuing education content. The continuing education requirement
follows an annual reporting period that starts on January 1 and ends on December 31. An associated
person’s initial reporting period commences the first day of the first full reporting period after the
individual is required to be registered with the state.
The continuing education requirement consists of a total of 12 hours of continuing education content
split into two broad categories:
Six credits of approved continuing education content that addresses ethical and regulatory
obligations, with at least 3 hours of the content covering the topic of ethics; and
Six credits of approved continuing educational content that addresses an associated person’s
skills and knowledge regarding financial products, investment features, and practices in the
investment advisory industry.
An associated person who is also a registered associated person of a FINRA member dealer and is in
compliance with FINRA’s continuing education requirements will be considered to be in com pliance
with the continuing education requirements of this section provided that the FINRA continuing
education content is approved by NASAA.
Credits of continuing education completed by an associated person who currently holds a credential
that qualifies for an examination waiver by passing any test prescribed in s. 15(b)(7) of the Securities
Exchange Act of 1934 will be found to comply with the continuing education requirement upon meeting
certain conditions. This condition entails that the associated person completes the credits of continuing
education as a condition for maintaining the credential during the relevant reporting period; the credits
of continuing education completed were mandatory to maintain the credential; and the continuing
education content provided by the credentialing organization during the relevant reporting period is
approved by NASAA.
The bill provides that an associated person is responsible for ensuring that the provider of continuing
education content reports the associated person’s completion of the requirements. Additionally,
completed continuing education content that exceeds the requirements of this section cannot be carried
over into a following year.
An associated person that fails to comply with this section by the end of a reporting period must register
as “CE Inactive” and must complete the continuing education content requirements for the year they
failed to comply with the requirements and the current reporting year in order to register as an
associated person again. If the associated person renews as “CE Inactive” at the close of the calendar
year and fails to complete and report all required CE credits for all reporting periods required by the
close of the next calendar year, the associated person becomes unregistered.
An associated person required to be registered in Florida who is registered as an associated person in
the individual’s home state is considered to be in compliance with this section if the associated person’s
home state requires at least 12 hours of CE credit annually and such person is in compliance with the
home state’s CE requirements.
An associated person who was previously registered under s. 517.12, F.S. and became unregistered
must complete the continuing education requirements for all reporting periods that occurred between
the time that the associated person became unregistered and when the person became registered
again under s. 517.12, F.S. unless the associated person takes and passes the required examinations
or the examination requirements are waived in connection with the subsequent application for
registration.
Rules of Conduct and Prohibited Business Practices for Dealers, Dealers’ Associated Persons and
Intermediaries
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The bill amends this section to include intermediaries.
Revocation, Denial, or Suspension of Registration of Dealer, Investment Adviser, Intermediary, or
Associated Person
The bill amends this section to add failure to pay, or attempting to avoid paying, certain final judgments,
arbitration awards, fines, civil penalties, orders of restitution and disgorgement, or similar monetary
payment obligations as grounds for denying, suspending, or revoking a registration.
Escrow Agreement
The bill repeals s. 517.181, F.S. which allowed the office to require an escrow agreement for securities
that had been issued for certain intangible assets. The escrow agreement would require that the
security be delivered in escrow to the office or other depository satisfactory to the office. The security
would be released from escrow upon showing that the issuer is currently operating a sound business.
Criminal Punishment Code; Offense Severity Ranking Chart
The bill removes issuers from the listed parties that would face felony charges for violating s. 517.12(1),
F.S. as issuers are no longer required to register with the office.
Miscellaneous
The bill eliminates the bad business repute and the unworthiness standard from various sections of the
chapter. The bill also eliminates the use of the term “small loan companies” in various sections of the
chapter.
The bill amends various sections to:
Replace the term “insolvent” with “cannot pay its debts as they become due in the usual course
of business;”
Replace the term “advisors” with “advisers” and gendered language with gender-neutral
language;
Provide clarity by specifically including limited liabilities companies in the regulations throughout
ch. 517, F.S.; and
Update cross-references.
B. SECTION DIRECTORY:
Section 1: Amends s. 517.021, F.S., relating to definitions.
Section 2: Amends s. 517.072, F.S., relating to viatical settlement investment.
Section 3: Amends s. 517.081, F.S., relating to registration procedure.
Section 4: Amends s. 517.082, F.S., relating to registration by notification; federal registration
statements.
Section 5: Amends s. 517.111, F.S., relating to revocation or denial of registration of securities.
Section 6: Amends s. 517.12, F.S., relating to registration of dealers, associated persons,
intermediaries, and investment advisers.
Section 7: Creates s. 517.1214, F.S., relating to continuing education requirements for associated
persons of investment advisers and federal covered advisers.
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Section 8: Amends s. 517.1217, F.S., relating to rules of conduct and prohibited business practices
for dealers and their associated persons and for intermediaries.
Section 9: Amends s. 517.161, F.S., relating to revocation, denial, or suspension of registration of
dealer, investment adviser, intermediary, or associated person.
Section 10: Repeals s. 517.181, F.S., relating to escrow agreement.
Section 11: Amends s. 517.201, F.S., relating to investigations; examinations; subpoenas; hearings;
witnesses.
Section 12: Amends s. 921.0022, F.S., relating to Criminal Punishment Code; offense severity
ranking chart.
Section 13: Amends s. 517.1215, F.S., relating to requirements, rules of conduct, and prohibited
business practices for investment advisers and their associated persons.
Section 14: Amends s. 517.061, F.S., relating to exempt transactions.
Section 15: Amends s. 517.0611, F.S., relating to intrastate crowdfunding.
Section 16: Amends s. 517.075, F.S., relating to Cuba, prospectus disclosure of doing business with,
required.
.
Section 17: Amends s. 517.131, F.S., relating to Securities Guaranty Fund.
Section 18: Amends s. 517.211, F.S., relating to remedies available in cases of unlawful sale.
Section 19: Amends s. 517.315, F.S., relating to fees.
Section 20: Amends s. 626.9911, F.S., relating to definitions.
Section 21: Amends s. 744.351, F.S., relating to bond of guardian.
Section 22: Amends s. 517.1205, F.S., relating to registration of associated persons specific as to
securities dealer, investment adviser, or federal covered adviser identified at time of
registration approval.
Section 23: Provides an effective date of October 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
The bill would have a negative, although insignificant, fiscal impact on state government as the bill
reduces the issuer fee for certain transactions.
2. Expenditures:
None.
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B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill has an indeterminate fiscal impact on the private sector. Specifically, the bill requires
associated persons of investment advisers and federal covered advisers to complete continuing
education requirements on an annual basis. Costs incurred by associated persons who are required to
comply with the requirement will vary. NASAA has implemented a course reporting fee of $3 per credit
hour. Therefore, an associated person will be required to pay a minimum of $36 per year in addition to
any training costs to meet the CE requirements. Training costs are indeterminable and will vary
depending on the selected continuing education course and provider, whether the associated person is
in compliance with FINRA CE requirements, and whether the associated person holds and maintains
certain professional designations.26
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 21, 2023, the Insurance & Banking Subcommittee considered a proposed committee substitute
for the bill, adopted one amendment, and reported the bill favorably as a committee substitute. The
proposed committee substitute made the following changes to the bill:
Changed bill title from “Securities Transactions” to “Regulation of Securities.”
Removed new terms introduced in the original bill including “Angel investor group”, “Business
accelerator”, “Business incubator”, “Target offering amount”, “Tier I dealer”, and “Tier II dealer.”
Eliminated proposed changes to exempt transactions and intrastate crowdfunding.
26 Florida Office of Financial Regulation, Agency Analysis of 2023 House Bill 253, p. 7 (Mar. 1, 2023).
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Deleted proposed preoffering communication safe harbors.
Reverted proposed use of “Tier I” and “Tier II dealer” to the current “dealer” language.
Eliminated proposed rules of conduct for a Tier II dealer.
Replaced various uses of the term “natural person” with “individual.”
Modified the home state reciprocity requirement of the associated person continuing education
provision to reflect the standards of the state of Florida.
Removed proposed changes to the definition of “control” to the statutory definition.
The bill analysis is drafted to the committee substitute as passed by the Insurance & Banking
Subcommittee.
STORAGE NAME: h0253a.COM PAGE: 11
DATE: 4/7/2023
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 253 2023
1 A bill to be entitled
2 An act relating to regulation of securities;
3 reordering and amending s. 517.021, F.S.; requiring
4 the Financial Services Commission to define the term
5 "accredited investor"; revising definitions; amending
6 s. 517.072, F.S.; authorizing the commission to adopt
7 certain rules relating to viatical settlement
8 investments; amending s. 517.081, F.S.; revising
9 requirements for the registration of securities;
10 revising application fees for certain securities
11 registrations; requiring the Office of Financial
12 Regulation to deem an application abandoned under
13 certain circumstances; conforming provisions to
14 changes made by the act; amending s. 517.082, F.S.;
15 making technical changes; requiring the office to deem
16 an application for registration by notification
17 abandoned under certain circumstances; amending s.
18 517.111, F.S.; revising grounds on which the office
19 may revoke, suspend, or deny the registration of
20 securities; specifying the office's powers in
21 investigations of issuers; revising the methods by
22 which the office may enter an order suspending an
23 issuer's right to sell securities; amending s. 517.12,
24 F.S.; revising applicability of registration
25 requirements; revising requirements for applying for
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26 registration as a dealer, an associated person of a
27 dealer, or an investment adviser; conforming
28 provisions to changes made by the act; making
29 technical changes; creating s. 517.1214, F.S.;
30 defining terms; specifying continuing education
31 requirements for associated persons of investment
32 advisers and federal covered advisers; providing that
33 certain education credits satisfy such requirements if
34 certain conditions are met; prohibiting associated
35 persons from carrying forward credits to subsequent
36 reporting periods; specifying a restriction on
37 associated persons who fail to meet such requirements;
38 specifying requirements for certain previously
39 registered associated persons; amending s. 517.1217,
40 F.S.; authorizing the commission to establish rules of
41 conduct and prohibited business practices for
42 intermediaries; amending s. 517.161, F.S.; revising
43 grounds on which the office may deny, revoke,
44 restrict, or suspend registrations of dealers,
45 investment advisers, intermediaries, and associated
46 persons; providing causes for denial of applications
47 or revocation of registrations of certain entities and
48 persons under certain circumstances; repealing s.
49 517.181, F.S., relating to escrow agreements; amending
50 s. 517.201, F.S.; conforming a provision to changes
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51 made by the act; amending s. 921.0022, F.S.; revising
52 applicability of a criminal penalty for certain
53 registration violations; amending s. 517.1215, F.S.;
54 making technical changes; amending ss. 517.061,
55 517.0611, 517.075, 517.131, 517.211, 517.315,
56 626.9911, and 744.351, F.S.; conforming cross-
57 references and making technical changes; amending s .
58 517.1205, F.S.; revising legislative intent; providing
59 an effective date.
60
61 Be It Enacted by the Legislature of the State of Florida:
62
63 Section 1. Section 517.021, Florida Statutes, is reordered
64 and amended to read:
65 517.021 Definitions.—When used in this chapter, unless the
66 context otherwise indicates, the following terms have the
67 following respective meanings:
68 (1) "Accredited investor" shall be defined by rule of the
69 commission in accordance with the Securities and Exchange
70 Commission Rule 501, 17 C.F.R. s. 230.501.
71 (2) "Affiliate" means a person that directly, or
72 indirectly through one or more intermediaries, controls, is
73 controlled by, or is under common control with an applicant or
74 registrant.
75 (3)(2) "Associated person" means:
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76 (a)1. With respect to a dealer, a natural person who is
77 employed, appointed, or authorized by a dealer and who
78 represents the dealer in effecting or attempting to effect
79 purchases or sales of securities.
80 2. The term does not include the following:
81 a. A dealer.
82 b. A partner, officer, or director of a dealer or a person
83 having a similar status or performing similar functions as a
84 dealer, unless such person is specified in subparagraph 1.
85 c. A dealer's employee whose function is only clerical or
86 ministerial.
87 d. A person whose transactions in this state are limited
88 to those transactions described in s. 15(i)(3) of the Securities
89 Exchange Act of 1934, as amended.
90 (b)1. With respect to an investment adviser, a natural
91 person, including, but not limited to, a partner, officer,
92 director, or branch manager, or a person occupying a similar
93 status or performing similar functions, who:
94 a. Is employed by or associated with, or is subject to the
95 supervision and control of, an investment adviser registered or
96 required to be registered under this chapter; and
97 b. Does any of the following:
98 (I) Makes any recommendation or otherwise gives investment
99 advice regarding securities.
100 (II) Manages accounts or portfolios of clients.
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101 (III) Determines which recommendation or advice regarding
102 securities should be given.
103 (IV) Receives compensation to solicit, offer, or negotiate
104 for the sale of investment advisory services.
105 (V) Supervises employees who perform a function under this
106 sub-subparagraph.
107 2. The term does not include the following:
108 a. An investment adviser.
109 b. An employee whose function is only clerical or
110 ministerial or investment adviser, any of the following:
111 1. Any partner, officer, director, or branch manager of a
112 dealer or investment adviser or any person occupying a similar
113 status or performing similar functions;
114 2. Any natural person directly or indirectly controlling
115 or controlled by such dealer or investment adviser, other than
116 an employee whose function is only clerical or ministerial; or
117 3. Any natural person, other than a dealer, employed,
118 appointed, or authorized by a dealer, investment adviser, or
119 issuer to sell securities in any manner or act as an investment
120 adviser as defined in this section.
121
122 The partners of a partnership and the executive officers of a
123 corporation or other association registered as a dealer, and any
124 person whose transactions in this state are limited to those
125 transactions described in s. 15(h)(2) of the Securities Exchange
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126 Act of 1934, are not "associated persons" within the meaning of
127 this definition.
128 (c)(b) With respect to a federal covered adviser, a
129 natural any person who is an investment adviser representative
130 and who has a place of business in this state, as such terms are
131 defined in Rule 203A-3 of the Securities and Exchange Commission
132 adopted under the Investment Advisers Act of 1940, as amended.
133 (4)(3) "Boiler room" means an enterprise in which two or
134 more persons engage in telephone communications with members of
135 the public using two or more telephones at one location, or at
136 more than one location in a common scheme or enterprise.
137 (5)(4) "Branch office" means any location in this state of
138 a dealer or investment adviser at which one or more associated
139 persons regularly conduct the business of rendering investment
140 advice or effecting any transactions in, or inducing or
141 attempting to induce the purchase or sale of, any security or
142 any location that is held out as such. The commission may adopt
143 by rule exceptions to this definition for dealers in order to
144 maintain consistency with the definition of a branch office used
145 by self-regulatory organizations authorized by the Securities
146 and Exchange Commission, including, but not limited to, the
147 Financial Industry Regulatory Authority. The commission may
148 adopt by rule exceptions to this definition for investment
149 advisers.
150 (6)(7) "Commission" means the Financial Services
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151 Commission.
152 (7)(5) "Control," including the terms "controlling,"
153 "controlled by," and "under common control with," means the
154 possession, directly or indirectly, of the power to direct or
155 cause the direction of the management or policies of a person,
156 whether through the ownership of voting securities, by contract,
157 or otherwise.
158 (8)(6)(a) "Dealer" includes, unless otherwise specified, a
159 person, other than an associated person of a dealer, that
160 engages, for all or part of the person's time, directly or
161 indirectly, as agent or principal in the business of offering,
162 buying, selling, or otherwise dealing or trading in securities
163 issued by another person any of the following:
164 1. Any person, other than an associated person registered
165 under this chapter, who engages, either for all or part of her
166 or his time, directly or indirectly, as broker or principal in
167 the business of offering, buying, selling, or otherwise dealing
168 or trading in securities issued by another person.
169 2. Any issuer who through persons directly compensated or
170 controlled by the issuer engages, either for all or part of her
171 or his time, directly or indirectly, in the business of offering
172 or selling securities which are issued or are proposed to be
173 issued by the issuer.
174 (b) The term "dealer" does not include the following:
175 (a) A licensed practicing attorney who renders or performs
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176 any such services in connection with the regular practice of the
177 attorney's profession.
178 (b) A bank authorized to do business in this state, except
179 nonbank subsidiaries of a bank.
180 (c) A trust company having trust powers that it is
181 authorized to exercise in this state, which renders or performs
182 services in a fiduciary capacity incidental to the exercise of
183 its trust powers.
184 (d) A wholesaler selling exclusively to dealers.
185 (e) A person buying and selling for the person's own
186 account exclusively through a registered dealer or stock
187 exchange.
188 (f) An issuer.
189 (g) A natural person representing an issuer in the
190 purchase, sale, or distribution of the issuer's own securities
191 if such person:
192 1. Is an officer, a director, a limited liability company
193 manager or managing member, or a bona fide employee of the
194 issuer;
195 2. Has not participated in the distribution or sale of
196 securities for any issuer for which such person was, within the
197 preceding 12 months, an officer, a director, a limited liability
198 company manager or managing member, or a bona fide employee;
199 3. Primarily performs, or is intended to perform at the
200 end of the distribution, substantial duties for, or on behalf
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201 of, the issuer other than in connection with transactions in
202 securities; and
203 4. Does not receive a commission, compensation, or other
204 consideration for the completed sale of the issuer's securities
205 apart from the compensation received for regular duties to the
206 issuer.
207 1. Any licensed practicing attorney who renders or
208 performs any of such services in connection with the regular
209 practice of her or his profession;
210 2. Any bank authorized to do business in this state,
211 except nonbank subsidiaries of a bank;
212 3. Any trust company having trust powers which it is
213 authorized to exercise in this state, which renders or performs
214 services in a fiduciary capacity incidental to the exercise of
215 its trust powers;
216 4. Any wholesaler selling exclusively to dealers;
217 5. Any person buying and selling for her or his own
218 account exclusively through a registered dealer or stock
219 exchange; or
220 6. Pursuant to s. 517.061(11), any person associated with
221 an issuer of securities if such person is a bona fide employee
222 of the issuer who has not participated in the distribution or
223 sale of any securities within the preceding 12 months and who
224 primarily performs, or is intended to perform at the end of the
225 distribution, substantial duties for, or on behalf of, the
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226 issuer other than in connection with transactions in securities.
227 (9) "Federal covered adviser" means a person that who is
228 registered or required to be registered under s. 203 of the
229 Investment Advisers Act of 1940, as amended. The term "federal
230 covered adviser" does not include any person that who is
231 excluded from the definition of investment adviser under
232 subparagraphs (14)(b)1.-8.
233 (10) "Federal covered security" means a any security that
234 is a covered security under s. 18(b) of the Securities Act of
235 1933, as amended, or rules and regulations adopted thereunder.
236 (11) "Guarantor" means a person that who agrees in
237 writing, or that who holds itself out to the public as agreeing,
238 to pay the indebtedness of another when due, including, without
239 limitation, payments of principal and interest on a bond,
240 debenture, note, or other evidence of indebtedness, without
241 resort by the holder to any other obligor, whether or not such
242 writing expressly states that the person signing is signing as a
243 guarantor. The obligation of a guarantor hereunder shall be a
244 continuing, absolute, and unconditional guaranty of payment,
245 without regard to the validity, regularity, or enforceability o f
246 the underlying indebtedness.
247 (12) "Guaranty" means an agreement in a writing in which
248 one party either agrees, or holds itself out to the public as
249 agreeing, to pay the indebtedness of another when due,
250 including, without limitation, payments of principal and
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251 interest on a bond, debenture, note, or other evidence of
252 indebtedness, without resort by the holder to any other obligor,
253 whether or not such writing expressly states that the person
254 signing is signing as a guarantor. An agreement that is not
255 specifically denominated as a guaranty shall nevertheless
256 constitute a guaranty if the holder of the underlying
257 indebtedness or the holder's her or his representative or
258 trustee has the right to sue to enforce the guarantor's
259 obligations under the guaranty. Words of guaranty or equivalent
260 words that which otherwise do not specify guaranty of payment
261 create a presumption that payment, rather than collection, is
262 guaranteed by the guarantor. Any guaranty in writing is
263 enforceable notwithstanding any statute of frauds.
264 (13) "Intermediary" means a natural person residing in
265 this the state or a corporation, trust, partnership, limited
266 liability company, association, or other legal entity registered
267 with the Secretary of State to do business in this the state,
268 which facilitates through its website the offer or sale of
269 securities of an issuer with a principal place of business in
270 this state under s. 517.0611.
271 (14)(a) "Investment adviser" means a includes any person,
272 other than an associated person of an investment adviser or a
273 federal covered adviser, that who receives compensation,
274 directly or indirectly, and engages for all or part of the
275 person's her or his time, directly or indirectly, or through
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276 publications or writings, in the business of advising others as
277 to the value of securities or as to the advisability of
278 investments in, purchasing of, or selling of securities , except
279 a dealer whose performance of these services is solely
280 incidental to the conduct of her or his business as a dealer and
281 who receives no special compensation for such services.
282 (b) The term "investment adviser" does not include the
283 following:
284 1. A dealer or associated person of a dealer whose
285 performance of services in paragraph (a) is solely incidental to
286 the conduct of the dealer's or associated person's business as a
287 dealer and who does not receive special compensation for those
288 services.
289 2. A Any licensed practicing attorney or certified public
290 accountant whose performance of such services is solely
291 incidental to the practice of the attorney's or accountant's her
292 or his profession.;
293 2. Any licensed certified public accountant whose
294 performance of such services is solely incidental to the
295 practice of her or his profession;
296 3. A Any bank authorized to do business in this state.;
297 4. A Any bank holding company as defined in the Bank
298 Holding Company Act of 1956, as amended, authorized to do
299 business in this state.;
300 5. A Any trust company having trust powers, as defined in
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301 s. 658.12, which it is authorized to exercise in this the state,
302 which trust company renders or performs investment advisory
303 services in a fiduciary capacity incidental to the exercise of
304 its trust powers.;
305 6. A Any person that who renders investment advice
306 exclusively to insurance or investment companies.;
307 7. A Any person that who does not hold itself herself or
308 himself out to the general public as an investment adviser and
309 has no more than 15 clients within 12 consecutive months in this
310 state.;
311 8. A Any person whose transactions in this state are
312 limited to those transactions described in s. 222(d) of the
313 Investment Advisers Act of 1940, as amended. Those clients
314 listed in subparagraph 6. may not be included when determining
315 the number of clients of an investment adviser for purposes of
316 s. 222(d) of the Investment Advisers Act of 1940, as amended.;
317 or
318 9. A federal covered adviser.
319 (15) "Issuer" means a any person that who proposes to
320 issue, has issued, or shall hereafter issue any security. A Any
321 person that who acts as a promoter for and on behalf of a
322 corporation, trust, or unincorporated association or
323 partnership, limited liability company, association, or other
324 legal entity of any kind to be formed shall be deemed an issuer.
325 (16) "Offer to sell," "offer for sale," or "offer" means
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326 an any attempt or offer to dispose of, or solicitation of an
327 offer to buy, a security or interest in a security, or an
328 investment or interest in an investment, for value.
329 (17)(8) "Office" means the Office of Financial Regulation
330 of the commission.
331 (18)(17) "Predecessor" means a person whose the major
332 portion of whose assets has have been acquired directly or
333 indirectly by an issuer.
334 (19)(18) "Principal" means an executive officer of a
335 corporation, partner of a partnership, sole proprietor of a sole
336 proprietorship, trustee of a trust, or any other person with
337 similar supervisory functions with respect to any organization,
338 whether incorporated or unincorporated.
339 (20)(19) "Promoter" includes the following:
340 (a) A Any person that who, acting alone or in conjunction
341 with one or more other persons, directly or indirectly takes the
342 initiative in founding and organizing the business or enterprise
343 of an issuer.
344 (b) A Any person that who, in connection with the founding
345 or organizing of the business or enterprise of an issuer,
346 directly or indirectly receives in consideration of services or
347 property, or both services and property, 10 percent or more of
348 any class of securities of the issuer or 10 percent or more of
349 the proceeds from the sale of any class of securities. However,
350 a person that who receives such securities or proceeds either
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351 solely as underwriting commissions or solely in connection with
352 property shall not be deemed a promoter if such person does not
353 otherwise take part in founding and organizing the enterprise.
354 (21)(20) "Qualified institutional buyer" means a any
355 qualified institutional buyer, as defined in United States
356 Securities and Exchange Commission Rule 144A, 17 C.F.R. s.
357 230.144A(a), under the Securities Act of 1933, as amended, or
358 any foreign buyer that satisfies the minimum financial
359 requirements set forth in such rule.
360 (22)(21) "Sale" or "sell" means a any contract of sale or
361 disposition of an any investment, security, or interest in a
362 security, for value. With respect to a security or interest in a
363 security, the term defined in this subsection does not include
364 preliminary negotiations or agreements between an issuer or any
365 person on whose behalf an offering is to be made and any
366 underwriter or among underwriters who are or are to be in
367 privity of contract with an issuer. Any security given or
368 delivered with, or as a bonus on account of, any purchase of
369 securities or any other thing shall be conclusively presumed to
370 constitute a part of the subject of such purchase and to have
371 been offered and sold for value. Every sale or offer of a
372 warrant or right to purchase or subscribe to another security of
373 the same or another issuer, as well as every sale or offer of a
374 security which gives the holder a present or future right or
375 privilege to convert into another security or another issuer, is
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376 considered to include an offer of the other security.
377 (23)(22) "Security" includes any of the following:
378 (a) A note.
379 (b) A stock.
380 (c) A treasury stock.
381 (d) A bond.
382 (e) A debenture.
383 (f) An evidence of indebtedness.
384 (g) A certificate of deposit.
385 (h) A certificate of deposit for a security.
386 (i) A certificate of interest or participation.
387 (j) A whiskey warehouse receipt or other commodity
388 warehouse receipt.
389 (k) A certificate of interest in a profit-sharing
390 agreement or the right to participate therein.
391 (l) A certificate of interest in an oil, gas, petroleum,
392 mineral, or mining title or lease or the right to participate
393 therein.
394 (m) A collateral trust certificate.
395 (n) A reorganization certificate.
396 (o) A preorganization subscription.
397 (p) A Any transferable share.
398 (q) An investment contract.
399 (r) A beneficial interest in title to property, profits,
400 or earnings.
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401 (s) An interest in or under a profit-sharing or
402 participation agreement or scheme.
403 (t) An Any option contract that which entitles the holder
404 to purchase or sell a given amount of the underlying security at
405 a fixed price within a specified period of time.
406 (u) Any other instrument commonly known as a security,
407 including an interim or temporary bond, debenture, note, or
408 certificate.
409 (v) A Any receipt for a security, or for subscription to a
410 security, or a any right to subscribe to or purchase any
411 security.
412 (w) A viatical settlement investment.
413 (24)(23) "Underwriter" means a person that who has
414 purchased from an issuer or an affiliate of an issuer with a
415 view to, or offers or sells for an issuer or an affiliate of an
416 issuer in connection with, the distribution of any security, or
417 participates or has a direct or indirect participation in any
418 such undertaking, or participates or has a participation in the
419 direct or indirect underwriting of any such undertaking; except
420 that a person is shall be presumed not to be an underwriter with
421 respect to any security which it she or he has owned
422 beneficially for at least 1 year; and, further, a dealer is
423 shall not be considered an underwriter with respect to any
424 securities which do not represent part of an unsold allotment to
425 or subscription by the dealer as a participant in the
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426 distribution of such securities by the issuer or an affiliate of
427 the issuer; and, further, in the case of securities acquired on
428 the conversion of another security without payment of additional
429 consideration, the length of time such securities have been
430 beneficially owned by a person includes the period during whi ch
431 the convertible security was beneficially owned and the period
432 during which the security acquired on conversion has been
433 beneficially owned.
434 (25)(24) "Viatical settlement investment" means an
435 agreement for the purchase, sale, assignment, transfer, devise,
436 or bequest of all or any portion of a legal or equitable
437 interest in a viaticated policy as defined in chapter 626.
438 Section 2. Paragraph (d) of subsection (3) of section
439 517.072, Florida Statutes, is amended, and subsection (4) is
440 added to that section, to read:
441 517.072 Viatical settlement investments.—
442 (3) The registration provisions of ss. 517.07 and 517.12
443 do not apply to any of the following transactions in viatical
444 settlement investments; however, such transactions in viatical
445 settlement investments are subject to the provisions of ss.
446 517.301, 517.311, and 517.312:
447 (d) The transfer or assignment of a viaticated policy to a
448 bank, trust company, savings institution, insurance company,
449 dealer, investment company as defined in the Investment Company
450 Act of 1940, as amended, pension or profit-sharing trust, or
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451 qualified institutional buyer as defined in United States
452 Securities and Exchange Commission Rule 144A, 17 C.F.R. s.
453 230.144A(a), or to an accredited investor as defined by Rule 501
454 of Regulation D of the Securities Act Rules, provided such
455 transfer or assignment is not for the direct or indirect
456 promotion of any scheme or enterprise with the intent of
457 violating or evading any provision of this chapter.
458 (4) The commission may establish by rule requirements and
459 standards for disclosures to purchasers of viatical settlement
460 investments and recordkeeping requirements for sellers of
461 viatical settlement investments.
462 Section 3. Paragraphs (a), (g), and (n) of subsection (3)
463 and subsections (6) and (8) of section 517.081, Florida
464 Statutes, are amended to read:
465 517.081 Registration procedure.—
466 (3) The office may require the applicant to submit to the
467 office the following information concerning the issuer and such
468 other relevant information as the office may in its judgment
469 deem necessary to enable it to ascertain whether such securities
470 shall be registered pursuant to the provisions of this section:
471 (a) The names and addresses of:
472 1. All the directors, trustees, and officers, if the
473 issuer is be a corporation, association, or trust.
474 2. All the managers or managing members, if the issuer is
475 a limited liability company.
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476 3. ; of All the partners, if the issuer is be a
477 partnership.
478 4. ; or of The issuer, if the issuer is a sole
479 proprietorship or natural person be an individual.
480 (g)1. A specimen copy of the securities certificate, if
481 applicable, security and a copy of any circular, prospectus,
482 advertisement, or other description of such securities.
483 2. The commission shall adopt a form for a simplified
484 offering circular to be used solely by corporations to register,
485 under this section, securities of the corporation that are sold
486 in offerings in which the aggregate offering price in any
487 consecutive 12-month period does not exceed the amount provided
488 in s. 3(b) of the Securities Act of 1933, as amended. The
489 following issuers shall not be eligible to submit a simplified
490 offering circular adopted pursuant to this subparagraph:
491 a. An issuer seeking to register securities for resale by
492 persons other than the issuer.
493 b. An issuer that who is subject to any of the
494 disqualifications described in 17 C.F.R. s. 230.262, adopted
495 pursuant to the Securities Act of 1933, as amended, or that who
496 has been or is engaged or is about to engage in an activity that
497 would be grounds for denial, revocation, or suspension under s.
498 517.111. For purposes of this subparagraph, an issuer includes
499 an issuer's director, officer, manager or managing member, or
500 equity owner shareholder who owns at least 10 percent of the
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501 ownership interests shares of the issuer, promoter, or selling
502 agent of the securities to be offered or any officer, director,
503 or partner of such selling agent.
504 c. An issuer that who is a development-stage company that
505 either has no specific business plan or purpose or has indicated
506 that its business plan is to merge with an unidentified company
507 or companies.
508 d. An issuer of offerings in which the specific business
509 or properties cannot be described.
510 e. Any issuer the office determines is ineligible because
511 if the form does would not provide full and fair disclosure of
512 material information for the type of offering to be registered
513 by the issuer.
514 f. Any issuer that corporation which has failed to provide
515 the office the reports required for a previous offering
516 registered pursuant to this subparagraph.
517
518 As a condition precedent to qualifying for use of the simplified
519 offering circular, an issuer a corporation shall agree to
520 provide the office with an annual financial report containing a
521 balance sheet as of the end of the issuer's fiscal year and a
522 statement of income for such year, prepared in accordance with
523 United States generally accepted accounting principles and
524 accompanied by an independent accountant's report. If the issuer
525 has more than 100 security holders at the end of a fiscal year,
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526 the financial statements must be audited. Annual financial
527 reports must be filed with the office within 90 days after the
528 close of the issuer's fiscal year for each of the first 5 years
529 following the effective date of the registration.
530 (n) If the issuer is a corporation, there shall be filed
531 with the application a copy of its articles of incorporation
532 with all amendments and of its existing bylaws, if not already
533 on file in the office. If the issuer is a limited liability
534 company, there shall be filed with the application a copy of the
535 articles of organization with all the amendments and a copy of
536 the company's operating agreement, if not already on file with
537 the office. If the issuer is a trustee, there shall be filed
538 with the application a copy of all instruments by which the
539 trust is created or declared and in which it is accepted and
540 acknowledged. If the issuer is a partnership, unincorporated
541 association, joint-stock company, or any other form of
542 organization whatsoever, there shall be filed with the
543 application a copy of its articles of partnership or association
544 and all other papers pertaining to its organization, if not
545 already on file in the office.
546 (6) An issuer filing an application under this section
547 shall, at the time of filing, pay the office a nonreturnable fee
548 of $1,000 per application for each offering that exceeds the
549 amount provided in s. 3(b) of the Securities Act of 1933, as
550 amended, or $200 per application for each offering that does not
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551 exceed the amount provided in s. 3(b) of the Securities Act of
552 1933, as amended.
553 (8) The office shall deem an application to register
554 securities filed with the office abandoned if the issuer or any
555 person acting on behalf of the issuer has failed to t imely
556 complete an application specified by commission rule The
557 commission may by rule establish requirements and standards for:
558 (a) Disclosures to purchasers of viatical settlement
559 investments.
560 (b) Recordkeeping requirements for sellers of viatical
561 settlement investments.
562 Section 4. Section 517.082, Florida Statutes, is amended
563 to read:
564 517.082 Notification Registration by notification; federal
565 registration statements.—
566 (1) Except as provided in subsection (3), Securities
567 offered or sold pursuant to a registration statement filed under
568 the Securities Act of 1933, as amended, are shall be entitled to
569 registration by notification in the manner provided in
570 subsection (2), provided that before prior to the offer or sale
571 the registration statement has become effective.
572 (2) An application for registration by notification shall
573 be filed with the office, shall contain the following
574 information, and shall be accompanied by all of the following:
575 (a) An application to sell executed by the issuer, any
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576 person on whose behalf the offering is made, a dealer registered
577 under this chapter, or any duly authorized agent of any such
578 person, setting forth the name and address of the applicant, the
579 name and address of the issuer, and the title of the securities
580 to be offered and sold.;
581 (b) Copies of such documents filed with the Securities and
582 Exchange Commission as the Financial Services Commission may by
583 rule require.;
584 (c) An irrevocable written consent to service as required
585 by s. 517.101.; and
586 (d) A nonreturnable fee of $1,000 per application.
587
588 A registration under this section becomes effective when the
589 federal registration statement becomes effective or as of the
590 date the application is filed with the office, whichever is
591 later, provided that, in addition to the items listed in
592 paragraphs (a)-(d), the office has received written notification
593 of effective registration under the Securities Act of 1933 , as
594 amended, or the Investment Company Act of 1940, as amended,
595 within 10 business days after from the date federal registration
596 is granted. Failure to provide all the information required by
597 this subsection to the office within 60 days after of the date
598 the registration statement becomes effective with the Securit ies
599 and Exchange Commission shall be a violation of this chapter.
600 (3) Except for units of limited partnership interests or
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601 such other securities as the commission describes by rule as
602 exempt from this subsection due to high investment quality, the
603 provisions of this section may not be used to register
604 securities if the offering price at the time of effectiveness
605 with the Securities and Exchange Commission is $5 or less per
606 share, unless such securities are listed or designated, or
607 approved for listing or designation upon notice of issuance, on
608 a stock exchange registered pursuant to the Securities Exchange
609 Act of 1934, as amended, or on the National Association of
610 Securities Dealers Automated Quotation (NASDAQ) System, or
611 unless such securities are of the same issuer and of senior or
612 substantially equal rank to securities so listed or designated.
613 (4) In lieu of filing with the office the application,
614 fees, and documents for registration required by subsection (2),
615 the commission may establish, by rule, procedures for depositing
616 fees and filing documents by electronic means, provided such
617 procedures provide the office with the information and data
618 required by this section.
619 (5) If the Securities and Exchange Commission has not
620 declared effective the applicant's federal registration
621 statement within 180 days after the applicant's filing with the
622 office of an application for registration by notification, the
623 office must deem the application abandoned.
624 Section 5. Section 517.111, Florida Statutes, is amend ed
625 to read:
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626 517.111 Revocation or denial of registration of
627 securities.—
628 (1) The office may revoke or suspend the registration of
629 any security, or may deny any application to register
630 securities, if, upon examination or investigation into the
631 affairs of the issuer of such security, the office determines it
632 shall appear that:
633 (a) The issuer cannot pay its debts as they become due in
634 the usual course of business is insolvent;
635 (b) The issuer or any officer, director, manager or
636 managing member, or control person of the issuer has violated
637 any provision of this chapter or any rule made hereunder or any
638 order of the office of which such issuer has notice;
639 (c) The issuer or any officer, director, manager or
640 managing member, or control person of the issuer has been or is
641 engaged or is about to engage in fraudulent transactions;
642 (d) The issuer or any officer, director, manager or
643 managing member, or control person of the issuer has been found
644 guilty of a fraudulent act in connection with any sale of
645 securities, has engaged, is engaged, or is about to engage, in
646 making a fictitious sale or purchase of any security, or in any
647 practice or sale of any security which is fraudulent or a
648 violation of any law;
649 (e) The issuer or any officer, director, manager or
650 managing member, or control person of the issuer has had a final
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651 judgment entered against such issuer or person in a civil action
652 on the grounds of fraud, embezzlement, misrepresentation, or
653 deceit;
654 (f) The issuer or any officer, director, manager or
655 managing member, or control person of the issuer has engaged in
656 any action that would be grounds for revocation, denial, or
657 suspension under s. 517.161(1) demonstrated any evidence of
658 unworthiness;
659 (g) The issuer or any officer, director, manager or
660 managing member, or control person of the issuer is in any other
661 way dishonest or has made any fraudulent representations or
662 failed to disclose any material information in any prospectus or
663 in any circular or other literature that has been distributed
664 concerning the issuer or its securities;
665 (h) The security registered or sought to be registered is
666 the subject of an injunction entered by a court of competent
667 jurisdiction or is the subject of an administrative stop -order
668 or similar order prohibiting the offer or sale of the security;
669 or
670 (i) For any security for which registration has been
671 applied pursuant to s. 517.081, the terms of the offer or sale
672 of such securities would not be fair, just, or equitable ; or
673 (j) The issuer or any person acting on behalf of the
674 issuer has failed to timely complete any application for
675 registration filed with the office pursuant to the provisions of
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676 s. 517.081 or s. 517.082 or any rule adopted under such
677 sections.
678 (2) In making such examination or investigation, the
679 office shall have access to and may compel the production of all
680 the books and papers of such issuer and may administer oaths to
681 and examine the officers of such issuer or any other person
682 connected therewith as to its business and affairs and may also
683 require a balance sheet exhibiting the assets and liabilities of
684 any such issuer or its income statement, or both, to be
685 certified to by a public accountant either of this state or of
686 any other state where the issuer's business is located. Whenever
687 the office deems it necessary, it may also require such balance
688 sheet or income statement, or both, to be made more specific in
689 such particulars as the office may require.
690 (3)(2) If any issuer refuses shall refuse to permit an
691 examination or investigation to be made by the office, it shall
692 be proper ground for revocation of registration.
693 (4)(3) If the office deems it necessary, it may enter an
694 order suspending the right to sell securities pending any
695 examination or investigation, provided that the order shall
696 state the office's grounds for taking such action.
697 (5)(4) Notice of the entry of such order shall be given
698 personally or by mail, personally, by telephone confirmed in
699 writing, or by telegraph to the issuer. Before such order is
700 made final, the issuer applying for registration shall, on
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701 application, be entitled to a hearing.
702 (6)(5) The office may deny any request to terminate any
703 registration or to withdraw any application for registration if
704 the office believes that an act which would be grounds for
705 denial, suspension, or revocation under this chapter has been
706 committed.
707 Section 6. Subsections (3) through (22) of section 517.12,
708 Florida Statutes, are renumbered as subsections (2) through
709 (21), respectively, and subsection (1), present subsections (2)
710 and (3), paragraph (b) of present subsection (6), present
711 subsections (7) and (11), paragraph (b) of present subsection
712 (15), and present subsections (20) and (21) of that section are
713 amended to read:
714 517.12 Registration of dealers, associated persons,
715 intermediaries, and investment advisers.—
716 (1) No dealer or, associated person, or issuer of
717 securities shall sell or offer for sale any securities in or
718 from offices in this state, or sell securities to persons in
719 this state from offices outside this state, by mail or
720 otherwise, unless the person is has been registered with the
721 office as a dealer or as an associated person of a dealer
722 pursuant to the provisions of this section. The office shall not
723 register any person as an associated person of a dealer unless
724 the dealer with which the applicant seeks registration is
725 lawfully registered with the office pursuant to this chapter.
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726 (2) The registration requirements of this section do not
727 apply to the issuers of securities exempted by s. 517.051(1) -(8)
728 and (10).
729 (2)(3) Except as otherwise provided in s.
730 517.061(11)(a)4., (13), (16), (17), or (19), The registration
731 requirements of this section do not apply in a transaction
732 exempted by s. 517.061(1)-(10) and (12), s. 517.061(1)-(12),
733 (14), and (15).
734 (5)(6) A dealer, associated person, or investment adviser,
735 in order to obtain registration, must file with the office a
736 written application, on a form which the commission may by rule
737 prescribe. The commission may establish, by rule, procedures for
738 depositing fees and filing documents by electronic means
739 provided such procedures provide the office with the information
740 and data required by this section. Each dealer or investment
741 adviser must also file an irrevocable written consent to service
742 of civil process similar to that provided for in s. 517.101. The
743 application shall contain such information as the commission or
744 office may require concerning such matters as:
745 (b) The applicant's form and place of organization; and,
746 if the applicant is:
747 1. A corporation, a copy of its articles of incorporation
748 and amendments to the articles of incorporation;
749 2. A limited liability company, a copy of its articles of
750 organization with amendments to its articles; or
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751 3., if A partnership, a copy of the partnership agreement.
752 (6)(7) The application must also contain such information
753 as the commission or office may require about the applicant; any
754 member, principal, or director of the applicant or any person
755 having a similar status or performing similar functions; any
756 person directly or indirectly controlling the applicant; or any
757 employee of a dealer or of an investment adviser rendering
758 investment advisory services. Each applicant and any direct
759 owners, principals, or indirect owners that are required to be
760 reported on Form BD or Form ADV pursuant to subsection (14) (15)
761 shall submit fingerprints for live-scan processing in accordance
762 with rules adopted by the commission. The fingerprints may be
763 submitted through a third-party vendor authorized by the
764 Department of Law Enforcement to provide live-scan
765 fingerprinting. The costs of fingerprint processing shall be
766 borne by the person subject to the background check. The
767 Department of Law Enforcement shall conduct a state criminal
768 history background check, and a federal criminal history
769 background check must be conducted through the Federal Bureau of
770 Investigation. The office shall review the results of the state
771 and federal criminal history background checks and determi ne
772 whether the applicant meets licensure requirements. The
773 commission may waive, by rule, the requirement that applicants,
774 including any direct owners, principals, or indirect owners that
775 are required to be reported on Form BD or Form ADV pursuant to
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776 subsection (14) (15), submit fingerprints or the requirement
777 that such fingerprints be processed by the Department of Law
778 Enforcement or the Federal Bureau of Investigation. The
779 commission or office may require information about any such
780 applicant or person concerning such matters as:
781 (a) The applicant's or person's His or her full name, and
782 any other names by which the applicant or person he or she may
783 have been known, and the applicant's or person's his or her age,
784 social security number, photograph, qualifications, and
785 educational and business history.
786 (b) Any injunction or administrative order by a state or
787 federal agency, national securities exchange, or national
788 securities association involving a security or any aspect of a
789 dealer's or investment adviser's regulated the securities
790 business and any injunction or administrative order by a state
791 or federal agency regulating banking, insurance, finance, or
792 small loan companies, real estate, mortgage brokers, or other
793 related or similar industries, which injunctions or
794 administrative orders relate to such person.
795 (c) The applicant's or person's His or her conviction of,
796 or plea of nolo contendere to, a criminal offense or the
797 applicant's or person's his or her commission of any acts which
798 would be grounds for refusal of an application under s. 517.161.
799 (d) The names and addresses of other persons of whom the
800 office may inquire as to the applicant's or person's his or her
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801 character, reputation, and financial responsibility.
802 (10)(a)(11)(a) If the office finds that the applicant is
803 of good repute and character and has complied with the
804 applicable registration provisions of this chapter and the rules
805 made pursuant hereto, it shall register the applicant unless the
806 applicant is otherwise disqualified for registration pursuant to
807 law. The registration of each dealer, investment adviser, and
808 associated person expires on December 31 of the year the
809 registration became effective unless the registrant has renewed
810 its his or her registration on or before that date. Registration
811 may be renewed by furnishing such information as the commission
812 may require, together with payment of the fee required in
813 paragraph (9)(a) (10)(a) for dealers, investment advisers, or
814 associated persons and the payment of any amount lawfully due
815 and owing to the office pursuant to any order of the office or
816 pursuant to any agreement with the office. Any dealer,
817 investment adviser, or associated person who has not renewed a
818 registration by the time the current registration expir es may
819 request reinstatement of such registration by filing with the
820 office, on or before January 31 of the year following the year
821 of expiration, such information as may be required by the
822 commission, together with payment of the fee required in
823 paragraph (9)(a) (10)(a) for dealers, investment advisers, or
824 associated persons and a late fee equal to the amount of such
825 fee. Any reinstatement of registration granted by the office
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826 during the month of January shall be deemed effective
827 retroactive to January 1 of that year.
828 (b) The office shall waive the $50 assessment fee for an
829 associated person required by paragraph (9)(a) (10)(a) for a
830 registrant renewing his or her registration who:
831 1. Is an active duty member of the United States Armed
832 Forces or the spouse of such member;
833 2. Is or was a member of the United States Armed Forces
834 and served on active duty within the 2 years preceding the
835 expiration date of the registration pursuant to paragraph (a).
836 To qualify for the fee waiver, a registrant who is a for mer
837 member of the United States Armed Forces who served on active
838 duty within the 2 years preceding the expiration date of the
839 registration must have received an honorable discharge upon
840 separation or discharge from the United States Armed Forces; or
841 3. Is the surviving spouse of a member of the United
842 States Armed Forces if the member was serving on active duty at
843 the time of death and died within the 2 years preceding the
844 surviving spouse's registration expiration date pursuant to
845 paragraph (a).
846
847 A registrant seeking such fee waiver must submit proof, in a
848 form prescribed by commission rule, that the registrant meets
849 one of the qualifications in this paragraph.
850 (14)(15)
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851 (b) In lieu of filing with the office the applications
852 specified in subsection (5) (6), the fees required by subsection
853 (9) (10), the renewals required by subsection (10) (11), and the
854 termination notices required by subsection (11) (12), the
855 commission may by rule establish procedures for the deposit of
856 such fees and documents with the Central Registration Depository
857 or the Investment Adviser Registration Depository of the
858 Financial Industry Regulatory Authority, as developed under
859 contract with the North American Securities Administrators
860 Association, Inc.
861 (19)(20) An intermediary may not engage in business in
862 this state unless the intermediary is registered as a dealer or
863 as an intermediary with the office pursuant to this section to
864 facilitate the offer or sale of securities in accordance with s.
865 517.0611. An intermediary, in order to obtain registration, must
866 file with the office a written application on a form prescribed
867 by commission rule and pay a registration fee of $200. The fees
868 under this subsection shall be deposited into the Regulatory
869 Trust Fund of the office. The commission may establish by rule
870 procedures for depositing fees and filing documents by
871 electronic means if such procedures provide the office with the
872 information and data required by this section. Each intermediary
873 must also file an irrevocable written consent to service of
874 civil process, as provided in s. 517.101.
875 (a) The application must contain such information as the
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876 commission or office may require concerning:
877 1. The name of the applicant and address of its principal
878 office and each office in this state.
879 2. The applicant's form and place of organization; and, if
880 the applicant is:
881 a. A corporation, a copy of its articles of incorporation
882 and amendments to the articles of incorporation;
883 b. A limited liability company, a copy of its articles of
884 organization and amendments to the articles and a copy of the
885 company's operating agreement; or
886 c., if A partnership, a copy of the partnership agreement.
887 3. The website address where securities of the issuer will
888 be offered.
889 4. Contact information.
890 (b) The application must also contain such information as
891 the commission may require by rule about the applicant; any
892 member, principal, or director of the applicant or any person
893 having a similar status or performing similar functions; or any
894 persons directly or indirectly controlling the applicant. Each
895 applicant and any direct owners, principals, or indirect owners
896 that are required to be reported on a form adopted by commission
897 rule shall submit fingerprints for live-scan processing in
898 accordance with rules adopted by the commission. The
899 fingerprints may be submitted through a third-party vendor
900 authorized by the Department of Law Enforcement to provide live -
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901 scan fingerprinting. The costs of fingerprint processing shall
902 be borne by the person subject to the background check. The
903 Department of Law Enforcement shall conduct a state criminal
904 history background check, and a federal criminal history
905 background check must be conducted through the Federal Bureau of
906 Investigation. The office shall review the results of the state
907 and federal criminal history background checks and determine
908 whether the applicant meets registration requirements. The
909 commission may waive, by rule, the requirement that applicants,
910 including any direct owners, principals, or indirect owners,
911 which are required to be reported on a form adopted by
912 commission rule, submit fingerprints or the requirement that
913 such fingerprints be processed by the Department of Law
914 Enforcement or the Federal Bureau of Investigation. The
915 commission, by rule, or the office may require information about
916 any applicant or person, including:
917 1. The applicant's or person's His or her full name and
918 any other names by which the applicant or person he or she may
919 have been known and the applicant's or person's his or her age,
920 social security number, photograph, qualifications, and
921 educational and business history.
922 2. Any injunction or administrative order by a state or
923 federal agency, national securities exchange, or national
924 securities association involving a security or any aspect of an
925 intermediary's regulated the securities business and any
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926 injunction or administrative order by a state or federal agency
927 regulating banking, insurance, finance, or small loan companies,
928 real estate, mortgage brokers, or other related or si milar
929 industries, which relate to such person.
930 3. The applicant's or person's His or her conviction of,
931 or plea of nolo contendere to, a criminal offense or the
932 applicant's or person's his or her commission of any acts that
933 would be grounds for refusal of an application under s. 517.161.
934 (c) The application must be amended within 30 days if any
935 information contained in the form becomes inaccurate for any
936 reason.
937 (d) An intermediary or persons affiliated with the
938 intermediary are not subject to any disqualification described
939 in s. 517.1611 or United States Securities and Exchange
940 Commission Rule 506(d), 17 C.F.R. 230.506(d), adopted pursuant
941 to the Securities Act of 1933, as amended. Each director,
942 officer, manager or managing member, control person of the
943 issuer, any person occupying a similar status or performing a
944 similar function, and each person holding more than 20 percent
945 of the ownership interests shares of the intermediary is subject
946 to this requirement.
947 (e) If the office finds that the applicant is of good
948 repute and character and has complied with the applicable
949 registration provisions of this chapter and the rules adopted
950 thereunder, it shall register the applicant. The registration of
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951 each intermediary expires on December 31 of the year the
952 registration became effective unless the registrant renews his
953 or her registration on or before that date. Registration may be
954 renewed by furnishing such information as the commission may
955 require by rule, together with payment of a $200 fee and the
956 payment of any amount due to the office pursuant to any order of
957 the office or pursuant to any agreement with the office. An
958 intermediary who has not renewed a registration by the time that
959 the current registration expires may request reinstatement of
960 such registration by filing with the office, on or before
961 January 31 of the year following the year of expiration, such
962 information as required by the commission, together with payment
963 of the $200 fee and a late fee of $200. Any reinstatement of
964 registration granted by the office during the month of January
965 is deemed effective retroactive to January 1 of that year.
966 (20)(21) The registration requirements of this section do
967 not apply to any general lines insurance agent or life insurance
968 agent licensed under chapter 626, for the sale of a security as
969 defined in s. 517.021(23)(g) s. 517.021(22)(g), if the
970 individual is directly authorized by the issuer to offer or sell
971 the security on behalf of the issuer and the issuer is a
972 federally chartered savings bank subject to regulation by the
973 Federal Deposit Insurance Corporation. Actions under this
974 subsection shall constitute activity under the insurance agent's
975 license for purposes of ss. 626.611 and 626.621.
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976 Section 7. Section 517.1214, Florida Statutes, is created
977 to read:
978 517.1214 Continuing education requirements for associated
979 persons of investment advisers and federal covered advisers. —
980 (1) As used in this section, the term:
981 (a) "Approved continuing education content" means the
982 materials, written, oral, or otherwise, which have been approved
983 by NASAA or its designee and which make up the educational
984 program provided to an associated person under this section.
985 (b) "Credit" means a unit designated by NASAA or its
986 designee as at least 50 minutes of educational instruction.
987 (c) "Home state" means the state in which an associated
988 person of an investment adviser or a federal covered adviser has
989 his or her principal office and place of business.
990 (d) "NASAA" means the North American Securities
991 Administrators Association, Inc.
992 (e) "Reporting period" means one 12-month period beginning
993 January 1 and ending December 31. An associated person's initial
994 reporting period with this state commences the first day of the
995 first full reporting period after the individual is r egistered
996 or required to be registered with this state.
997 (2) By December 31, 2024, and each December 31 thereafter,
998 each associated person of an investment adviser or a federal
999 covered adviser shall complete the following continuing
1000 education content requirements offered by a person that NASAA or
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1001 its designee has authorized to provide the continuing education
1002 content required by this section:
1003 (a) Six credits of approved continuing education content
1004 that addresses an associated person's ethical and regula tory
1005 obligations, with at least 3 hours covering the topic of ethics;
1006 and
1007 (b) Six credits of approved continuing education content
1008 that addresses an associated person's skills and knowledge
1009 regarding financial products, investment features, and practices
1010 in the investment advisory industry.
1011 (3) An associated person of an investment adviser or
1012 federal covered adviser who is also registered as an associated
1013 person of a Financial Industry Regulatory Authority (FINRA)
1014 member dealer and who complies with FINRA's continuing education
1015 requirements is considered to be in compliance with this
1016 section's products and practice requirement for each applicable
1017 reporting period, provided that the FINRA continuing education
1018 content is approved continuing education content.
1019 (4) Credits of continuing education completed by an
1020 associated person who was awarded and currently holds a
1021 credential that qualifies for examination waiver by passing any
1022 tests as prescribed in s. 15(b)(7) of the Securities Exchange
1023 Act of 1934, as amended, comply with paragraphs (2)(a) and (b),
1024 provided all of the following conditions are met:
1025 (a) The associated person completes the credits of
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1026 continuing education as a condition of maintaining the
1027 credential for the relevant reporting period.
1028 (b) The credits of continuing education completed during
1029 the relevant reporting period by the associated person are
1030 mandatory to maintain the credential.
1031 (c) The continuing education content provided by the
1032 credentialing organization during the relevant reporting period
1033 is approved continuing education content.
1034 (5) Each associated person is responsible for ensuring
1035 that the authorized provider reports the associated person's
1036 completion of the applicable continuing education requirements.
1037 (6) An associated person who completes credits of
1038 continuing education in excess of the credits required for the
1039 reporting period may not carry forward excess credits to a
1040 subsequent reporting period.
1041 (7) An associated person who fails to comply with this
1042 section by the end of a reporting period shall renew as "CE
1043 inactive" at the close of the calendar year in this state until
1044 the associated person completes and reports all required
1045 continuing education credits for all reporting periods as
1046 required by this section. If an associated person renews as "CE
1047 inactive" at the close of the calendar year and fails to
1048 complete and report all required continuing education credits
1049 for all reporting periods as required by this section by the
1050 close of the next calendar year, the associated person becomes
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1051 unregistered for purposes of this chapter.
1052 (8) An associated person registered or required to be
1053 registered in this state who is registered as an associated
1054 person of an investment adviser or federal covered adviser in
1055 the individual's home state is considered to be in compliance
1056 with this section if:
1057 (a) The associated person's home state has a continuing
1058 education requirement of at least 12 hours annually; and
1059 (b) The associated person is in compliance with the home
1060 state's associated person of an investment adviser or federal
1061 covered adviser continuing education requirements.
1062 (9) An associated person who was previously registered
1063 under s. 517.12 and became unregistered must complete continuing
1064 education for all reporting periods that occurred between the
1065 time that the associated person became unregistered and when the
1066 person became registered again under s. 517.12, unless the
1067 associated person takes and passes the required examinations or
1068 the examination requirements are waived in connection with the
1069 subsequent application for registration.
1070 Section 8. Section 517.1217, Florida Statutes, is amended
1071 to read:
1072 517.1217 Rules of conduct and prohibited business
1073 practices for dealers and their associated persons and for
1074 intermediaries.—The commission by rule may establish rules of
1075 conduct and prohibited business practices for dealers and their
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1076 associated persons and for intermediaries. In adopting the
1077 rules, the commission shall consider general industry standards
1078 as expressed in the rules and regulations of the various federal
1079 and self-regulatory agencies and regulatory associations,
1080 including, but not limited to, the United States Securities and
1081 Exchange Commission, the Financial Industry Regulatory
1082 Authority, and the North American Securities Administrators
1083 Association, Inc.
1084 Section 9. Subsections (1), (4), and (5) of section
1085 517.161, Florida Statutes, are amended to read:
1086 517.161 Revocation, denial, or suspension of registration
1087 of dealer, investment adviser, intermediary, or associated
1088 person.—
1089 (1) Registration under s. 517.12 may be denied or any
1090 registration granted may be revoked, restricted, or suspended by
1091 the office if the office determines that such applicant or
1092 registrant; any member, principal, or director of the applicant
1093 or registrant or any person having a similar status or
1094 performing similar functions; or any person directly or
1095 indirectly controlling the applicant or registrant:
1096 (a) Has violated any provision of this chapter or any rule
1097 or order made under this chapter;
1098 (b) Has made a material false statement in the application
1099 for registration;
1100 (c) Has been guilty of a fraudulent act in connection with
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1101 rendering investment advice or in connection with any sale of
1102 securities, has been or is engaged or is about to engage in
1103 making fictitious or pretended sales or purchases of any such
1104 securities or in any practice involving the rendering of
1105 investment advice or the sale of securities which is fraudulent
1106 or in violation of the law;
1107 (d) Has made a misrepresentation or false statement to, or
1108 concealed any essential or material fact from, any person in the
1109 rendering of investment advice or the sale of a security to such
1110 person;
1111 (e) Has failed to account to persons interested for all
1112 money and property received;
1113 (f) Has not delivered, after a reasonable time, to persons
1114 entitled thereto securities held or agreed to be delivered by
1115 the dealer, broker, or investment adviser, as and when paid for,
1116 and due to be delivered;
1117 (g) Is rendering investment advice or selling or offering
1118 for sale securities through any associated person not registered
1119 in compliance with the provisions of this chapter;
1120 (h) Has demonstrated unworthiness to transact the business
1121 of dealer, investment adviser, intermediary, or associated
1122 person;
1123 (i) Has exercised management or policy control over or
1124 owned 10 percent or more of the securities of any dealer,
1125 intermediary, or investment adviser that has been declared
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1126 bankrupt, or had a trustee appointed under the Securities
1127 Investor Protection Act; or is, in the case of a dealer,
1128 intermediary, or investment adviser, unable to pay its debts as
1129 they become due in the usual course of business insolvent;
1130 (i)(j) Has been convicted of, or has entered a plea of
1131 guilty or nolo contendere to, regardless of whether adjudication
1132 was withheld, a crime against the laws of this state or any
1133 other state or of the United States or of any other country or
1134 government which relates to registration as a dealer, investment
1135 adviser, issuer of securities, intermediary, or associated
1136 person; which relates to the application for such registration;
1137 or which involves moral turpitude or fraudulent or dishonest
1138 dealing;
1139 (j)(k) Has had a final judgment entered against her or him
1140 in a civil action upon grounds of fraud, embezzlement,
1141 misrepresentation, or deceit;
1142 (l) Is of bad business repute;
1143 (k)(m) Has been the subject of any decision, finding,
1144 injunction, suspension, prohibition, revocation, denial,
1145 judgment, or administrative order by any court of competent
1146 jurisdiction, administrative law judge, or by any state or
1147 federal agency, national securities, commodities, or option
1148 exchange, or national securities, commodities, or option
1149 association, involving a violation of any federal or state
1150 securities or commodities law or any rule or regulation
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1151 promulgated thereunder, or any rule or regulation of an y
1152 national securities, commodities, or options exchange or
1153 national securities, commodities, or options association, or has
1154 been the subject of any injunction or adverse administrative
1155 order by a state or federal agency regulating banking,
1156 insurance, finance or small loan companies, real estate,
1157 mortgage brokers or lenders, money transmitters, or other
1158 related or similar industries. For purposes of this subsection,
1159 the office may not deny registration to any applicant who has
1160 been continuously registered with the office for 5 years after
1161 the date of entry of such decision, finding, injunction,
1162 suspension, prohibition, revocation, denial, judgment, or
1163 administrative order provided such decision, finding,
1164 injunction, suspension, prohibition, revocation, denial ,
1165 judgment, or administrative order has been timely reported to
1166 the office pursuant to the commission's rules; or
1167 (l)(n) Made payment to the office for a registration with
1168 a check or electronic transmission of funds that is dishonored
1169 by the applicant's or registrant's financial institution;
1170 (m) Failed to pay and fully satisfy any final judgment or
1171 arbitration award resulting from an investment-related, client-
1172 or customer-initiated arbitration or court proceeding, unless
1173 alternative payment arrangements are agreed to in writing
1174 between the client or customer and the investment adviser,
1175 dealer, or associated person and the investment adviser, dealer,
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1176 or associated person complies with the terms of the alternative
1177 payment arrangement;
1178 (n) Attempted to avoid payment of any final judgment or
1179 arbitration award resulting from an investment-related, client-
1180 or customer-initiated arbitration or court proceeding, unless
1181 alternative payment arrangements are agreed to in writing
1182 between the client or customer and the investment adviser,
1183 dealer, or associated person and the investment adviser, dealer,
1184 or associated person complies with the terms of the alternative
1185 payment arrangements; or
1186 (o) Failed to pay and fully satisfy any fine, civil
1187 penalty, order of restitution, order of disgorgement, or similar
1188 monetary payment obligation imposed upon the investment adviser,
1189 dealer, or associated person by the Securities and Exchange
1190 Commission, the securities regulator or other financial services
1191 regulator of any state or province, or any securities industry
1192 self-regulatory organization.
1193 (4) It shall be sufficient cause for denial of an
1194 application or revocation of registration, in the case of a
1195 partnership, corporation, limited liability company, or
1196 unincorporated association, if any member of the partnership,
1197 any manager or managing member of the limited liability company,
1198 or any officer, director, or ultimate equitable owner of the
1199 corporation or association has committed any act or omission
1200 which would be cause for denying, revoking, restricting, or
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1201 suspending the registration of an individual dealer, investment
1202 adviser, intermediary, or associated person. As used in this
1203 subsection, the term "ultimate equitable owner" means a natural
1204 person who directly or indirectly owns or controls an ownership
1205 interest in the corporation, partnership, association, or other
1206 legal entity however organized, regardless of whether such
1207 natural person owns or controls such ownership interest through
1208 one or more proxies, powers of attorney, nominees, corporations,
1209 associations, partnerships, trusts, joint stock companies, or
1210 other entities or devices, or any combination thereof.
1211 (5) The office may deny any request to terminate or
1212 withdraw any application or registration if the office bel ieves
1213 that an act that which would be a ground for denial, suspension,
1214 restriction, or revocation under this chapter has been
1215 committed.
1216 Section 10. Section 517.181, Florida Statutes, is
1217 repealed.
1218 Section 11. Paragraph (a) of subsection (4) of section
1219 517.201, Florida Statutes, is amended to read:
1220 517.201 Investigations; examinations; subpoenas; hearings;
1221 witnesses.—
1222 (4)(a) In the event of substantial noncompliance with a
1223 subpoena or subpoena duces tecum issued or caused to be issued
1224 by the office pursuant to this section, the office may petition
1225 the circuit court of the county in which the person subpoenaed
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1226 resides or has its principal place of business for an order
1227 requiring the subpoenaed person to appear and testify and to
1228 produce such books, records, and documents as are specified in
1229 such subpoena duces tecum. The court may grant injunctive relief
1230 restraining the issuance, sale or offer for sale, purchase or
1231 offer to purchase, promotion, negotiation, advertisement, or
1232 distribution in or from offices in this state of securities or
1233 investments in or from this state by the noncompliant a person
1234 or its agent, employee, broker, partner, officer, director,
1235 manager, managing member, equity holder, or any person directly
1236 or indirectly controlling the noncompliant person stockholder
1237 thereof, and may grant such other relief, including, but not
1238 limited to, the restraint, by injunction or appointment of a
1239 receiver, of any transfer, pledge, assignment, or other
1240 disposition of such person's assets or any concealment,
1241 alteration, destruction, or other disposition of subpoenaed
1242 books, records, or documents, as the court deems appropriate,
1243 until such person has fully complied with such subpoena or
1244 subpoena duces tecum and the office has completed its
1245 investigation or examination. The office is entitled to the
1246 summary procedure provided in s. 51.011, and the court shall
1247 advance the cause on its calendar. Costs incurred by the office
1248 to obtain an order granting, in whole or in part, such petition
1249 for enforcement of a subpoena or subpoena duces tecum shall be
1250 taxed against the subpoenaed person, and failure to comply with
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1251 such order shall be a contempt of court.
1252 Section 12. Paragraph (d) of subsection (3) of section
1253 921.0022, Florida Statutes, is amended to read:
1254 921.0022 Criminal Punishment Code; offense severity
1255 ranking chart.—
1256 (3) OFFENSE SEVERITY RANKING CHART
1257 (d) LEVEL 4
1258
Florida Felony
Statute Degree Description
1259
316.1935(3)(a) 2nd Driving at high speed or with
wanton disregard for safety
while fleeing or attempting to
elude law enforcement officer
who is in a patrol vehicle with
siren and lights activated.
1260
499.0051(1) 3rd Failure to maintain or deliver
transaction history,
transaction information, or
transaction statements.
1261
499.0051(5) 2nd Knowing sale or delivery, or
possession with intent to sell,
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contraband prescription drugs.
1262
517.07(1) 3rd Failure to register securities.
1263
517.12(1) 3rd Failure of dealer or,
associated person of a dealer,
or issuer of securities to
register.
1264
784.07(2)(b) 3rd Battery of law enforcement
officer, firefighter, etc.
1265
784.074(1)(c) 3rd Battery of sexually violent
predators facility staff.
1266
784.075 3rd Battery on detention or
commitment facility staff.
1267
784.078 3rd Battery of facility employee by
throwing, tossing, or expelling
certain fluids or materials.
1268
784.08(2)(c) 3rd Battery on a person 65 years of
age or older.
1269
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784.081(3) 3rd Battery on specified official
or employee.
1270
784.082(3) 3rd Battery by detained person on
visitor or other detainee.
1271
784.083(3) 3rd Battery on code inspector.
1272
784.085 3rd Battery of child by throwing,
tossing, projecting, or
expelling certain fluids or
materials.
1273
787.03(1) 3rd Interference with custody;
wrongly takes minor from
appointed guardian.
1274
787.04(2) 3rd Take, entice, or remove child
beyond state limits with
criminal intent pending custody
proceedings.
1275
787.04(3) 3rd Carrying child beyond state
lines with criminal intent to
avoid producing child at
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custody hearing or delivering
to designated person.
1276
787.07 3rd Human smuggling.
1277
790.115(1) 3rd Exhibiting firearm or weapon
within 1,000 feet of a school.
1278
790.115(2)(b) 3rd Possessing electric weapon or
device, destructive device, or
other weapon on school
property.
1279
790.115(2)(c) 3rd Possessing firearm on school
property.
1280
794.051(1) 3rd Indecent, lewd, or lascivious
touching of certain minors.
1281
800.04(7)(c) 3rd Lewd or lascivious exhibition;
offender less than 18 years.
1282
806.135 2nd Destroying or demolishing a
memorial or historic property.
1283
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810.02(4)(a) 3rd Burglary, or attempted
burglary, of an unoccupied
structure; unarmed; no assault
or battery.
1284
810.02(4)(b) 3rd Burglary, or attempted
burglary, of an unoccupied
conveyance; unarmed; no assault
or battery.
1285
810.06 3rd Burglary; possession of tools.
1286
810.08(2)(c) 3rd Trespass on property, armed
with firearm or dangerous
weapon.
1287
812.014(2)(c)3. 3rd Grand theft, 3rd degree $10,000
or more but less than $20,000.
1288
812.014 3rd Grand theft, 3rd degree;
(2)(c)4.-10. specified items.
1289
812.0195(2) 3rd Dealing in stolen property by
use of the Internet; property
stolen $300 or more.
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1290
817.505(4)(a) 3rd Patient brokering.
1291
817.563(1) 3rd Sell or deliver substance other
than controlled substance
agreed upon, excluding s.
893.03(5) drugs.
1292
817.568(2)(a) 3rd Fraudulent use of personal
identification information.
1293
817.625(2)(a) 3rd Fraudulent use of scanning
device, skimming device, or
reencoder.
1294
817.625(2)(c) 3rd Possess, sell, or deliver
skimming device.
1295
828.125(1) 2nd Kill, maim, or cause great
bodily harm or permanent
breeding disability to any
registered horse or cattle.
1296
836.14(2) 3rd Person who commits theft of a
sexually explicit image with
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intent to promote it.
1297
836.14(3) 3rd Person who willfully possesses
a sexually explicit image with
certain knowledge, intent, and
purpose.
1298
837.02(1) 3rd Perjury in official
proceedings.
1299
837.021(1) 3rd Make contradictory statements
in official proceedings.
1300
838.022 3rd Official misconduct.
1301
839.13(2)(a) 3rd Falsifying records of an
individual in the care and
custody of a state agency.
1302
839.13(2)(c) 3rd Falsifying records of the
Department of Children and
Families.
1303
843.021 3rd Possession of a concealed
handcuff key by a person in
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custody.
1304
843.025 3rd Deprive law enforcement,
correctional, or correctional
probation officer of means of
protection or communication.
1305
843.15(1)(a) 3rd Failure to appear while on bail
for felony (bond estreature or
bond jumping).
1306
847.0135(5)(c) 3rd Lewd or lascivious exhibition
using computer; offender less
than 18 years.
1307
870.01(3) 2nd Aggravated rioting.
1308
870.01(5) 2nd Aggravated inciting a riot.
1309
874.05(1)(a) 3rd Encouraging or recruiting
another to join a criminal
gang.
1310
893.13(2)(a)1. 2nd Purchase of cocaine (or other
s. 893.03(1)(a), (b), or (d),
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(2)(a), (2)(b), or (2)(c)5.
drugs).
1311
914.14(2) 3rd Witnesses accepting bribes.
1312
914.22(1) 3rd Force, threaten, etc., witness,
victim, or informant.
1313
914.23(2) 3rd Retaliation against a witness,
victim, or informant, no bodily
injury.
1314
916.1085 3rd Introduction of specified
(2)(c)1. contraband into certain DCF
facilities.
1315
918.12 3rd Tampering with jurors.
1316
934.215 3rd Use of two-way communications
device to facilitate commission
of a crime.
1317
944.47(1)(a)6. 3rd Introduction of contraband
(cellular telephone or other
portable communication device)
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into correctional institution.
1318
951.22(1)(h), 3rd Intoxicating drug,
(j) & (k) instrumentality or other device
to aid escape, or cellular
telephone or other portable
communication device introduced
into county detention facility.
1319
1320 Section 13. Section 517.1215, Florida Statutes, is amended
1321 to read:
1322 517.1215 Requirements, rules of conduct, and prohibited
1323 business practices for investment advisers advisors and their
1324 associated persons.—
1325 (1) The commission shall specify by rule requirements for
1326 investment advisers advisors deemed to have custody of client
1327 funds which concern the following:
1328 (a) Notification of custody of, maintenance of, and
1329 safeguards for client funds.
1330 (b) Communications with clients and independent
1331 representatives.
1332 (c) Requirements for investment advisers who have custody
1333 of pooled investments.
1334 (d) Exceptions to the custody requirements.
1335
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1336 In adopting the rules, the commission shall consider the rules
1337 and regulations of the federal regulatory authority and the
1338 North American Securities Administrators Association, Inc.
1339 (2) The commission shall by rule establish rules of
1340 conduct and prohibited business practices for investment
1341 advisers and their associated persons. In adopting the rules,
1342 the commission shall consider general industry standards as
1343 expressed in the rules and regulations of the various federal
1344 and self-regulatory agencies and regulatory associations,
1345 including, but not limited to, the United States Securities and
1346 Exchange Commission, the Financial Industry Regulatory
1347 Authority, and the North American Securities Administrators
1348 Association, Inc.
1349 Section 14. Subsections (18) and (22) of section 517.0 61,
1350 Florida Statutes, are amended to read:
1351 517.061 Exempt transactions.—Except as otherwise provided
1352 in s. 517.0611 for a transaction listed in subsection (21), the
1353 exemption for each transaction listed below is self -executing
1354 and does not require any filing with the office before claiming
1355 the exemption. Any person who claims entitlement to any of the
1356 exemptions bears the burden of proving such entitlement in any
1357 proceeding brought under this chapter. The registration
1358 provisions of s. 517.07 do not apply to any of the following
1359 transactions; however, such transactions are subject to the
1360 provisions of ss. 517.301, 517.311, and 517.312:
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1361 (18) The offer or sale of any security effected by or
1362 through a person in compliance with s. 517.12(16) s. 517.12(17).
1363 (22) The offer or sale of securities, solely in connection
1364 with the transfer of ownership of an eligible privately held
1365 company, through a merger and acquisition broker in accordance
1366 with s. 517.12(21) s. 517.12(22).
1367 Section 15. Paragraph (b) of subsection (4) and subsection
1368 (14) of section 517.0611, Florida Statutes, are amended to read:
1369 517.0611 Intrastate crowdfunding.—
1370 (4) An issuer must:
1371 (b) Conduct transactions for the offering through a dealer
1372 registered with the office or an intermediary registered under
1373 s. 517.12(19) s. 517.12(20).
1374 (14) An intermediary not registered as a dealer under s.
1375 517.12(5) s. 517.12(6) may not:
1376 (a) Offer investment advice or recommendations. A refusal
1377 by an intermediary to post an offering that it deems not
1378 credible or that represents a potential for fraud may not be
1379 construed as an offer of investment advice or recommendation.
1380 (b) Solicit purchases, sales, or offers to buy securities
1381 offered or displayed on its website.
1382 (c) Compensate employees, agents, or other persons for the
1383 solicitation of, or based on the sale of, securities offered or
1384 displayed on its website.
1385 (d) Hold, manage, possess, or otherwise handle investor
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1386 funds or securities.
1387 (e) Compensate promoters, finders, or lead generators for
1388 providing the intermediary with the personal identifying
1389 information of any potential investor.
1390 (f) Engage in any other activities set forth by commission
1391 rule.
1392 Section 16. Subsection (1) of section 517.075, Florida
1393 Statutes, is amended to read:
1394 517.075 Cuba, prospectus disclosure of doing business
1395 with, required.—
1396 (1) Any issuer of securities that will be sold in this
1397 state pursuant to a prospectus must disclose in the prospectus
1398 if the issuer or any affiliate thereof, as defined in s.
1399 517.021(1), does business with the government of Cuba or with
1400 any person or affiliate located in Cuba. The prospectus
1401 disclosure required by this subsection does not apply with
1402 respect to prospectuses prepared before April 10, 1992.
1403 Section 17. Paragraph (a) of subsection (1) of section
1404 517.131, Florida Statutes, is amended to read:
1405 517.131 Securities Guaranty Fund.—
1406 (1)(a) The Chief Financial Officer shall establish a
1407 Securities Guaranty Fund. An amount not exceeding 20 percent of
1408 all revenues received as assessment fees pursuant to s.
1409 517.12(9) and (10) s. 517.12(10) and (11) for dealers and
1410 investment advisers or s. 517.1201 for federal covered advisers
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1411 and an amount not exceeding 10 percent of all revenues received
1412 as assessment fees pursuant to s. 517.12(9) and (10) s.
1413 517.12(10) and (11) for associated persons shall be part of the
1414 regular license fee and shall be transferred to or deposited in
1415 the Securities Guaranty Fund.
1416 Section 18. Subsection (1) of section 517.211, Florida
1417 Statutes, is amended to read:
1418 517.211 Remedies available in cases of unlawful sale.—
1419 (1) Every sale made in violation of either s. 517.07 or s.
1420 517.12(1), (3), (4), (8), (10), (12), (15), or (17) (4), (5),
1421 (9), (11), (13), (16), or (18) may be rescinded at the election
1422 of the purchaser, except a sale made in violation of the
1423 provisions of s. 517.1202(3) relating to a renewal of a branch
1424 office notification shall not be subject to this section, and a
1425 sale made in violation of the provisions of s. 517.12(12) s.
1426 517.12(13) relating to filing a change of address amendment
1427 shall not be subject to this section. Each person making the
1428 sale and every director, officer, partner, or agent of or for
1429 the seller, if the director, officer, partner, or agent has
1430 personally participated or aided in making the sale, is jointly
1431 and severally liable to the purchaser in an action for
1432 rescission, if the purchaser still owns the security, or for
1433 damages, if the purchaser has sold the security. No purchaser
1434 otherwise entitled will have the benefit of this subsection who
1435 has refused or failed, within 30 days of receipt, to accept an
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1436 offer made in writing by the seller, if the purchaser has not
1437 sold the security, to take back the security in question and to
1438 refund the full amount paid by the purchaser or, if the
1439 purchaser has sold the security, to pay the purchaser an amount
1440 equal to the difference between the amount paid for the security
1441 and the amount received by the purchaser on the sale of the
1442 security, together, in either case, with interest on the ful l
1443 amount paid for the security by the purchaser at the legal rate,
1444 pursuant to s. 55.03, for the period from the date of payment by
1445 the purchaser to the date of repayment, less the amount of any
1446 income received by the purchaser on the security.
1447 Section 19. Section 517.315, Florida Statutes, is amended
1448 to read:
1449 517.315 Fees.—All fees of any nature collected by the
1450 office pursuant to this chapter shall be disbursed as follows:
1451 (1) The office shall transfer the amount of fees required
1452 to be deposited into the Securities Guaranty Fund pursuant to s.
1453 517.131.;
1454 (2) After the transfer required in subsection (1), the
1455 office shall transfer the $50 assessment fee collected from each
1456 associated person under s. 517.12(9) and (10) s. 517.12(10) and
1457 (11) and 30.44 percent of the $100 assessment fee paid by
1458 dealers and investment advisers advisors for each office in the
1459 state under s. 517.12(9) and (10) s. 517.12(10) and (11) to the
1460 Regulatory Trust Fund.; and
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1461 (3) All remaining fees shall be deposited into the G eneral
1462 Revenue Fund.
1463 Section 20. Subsection (5) of section 626.9911, Florida
1464 Statutes, is amended to read:
1465 626.9911 Definitions.—As used in this act, the term:
1466 (5) "Life expectancy provider" means a person who
1467 determines, or holds himself or herself out as determining, life
1468 expectancies or mortality ratings used to determine life
1469 expectancies:
1470 (a) On behalf of a viatical settlement provider, viatical
1471 settlement broker, life agent, or person engaged in the business
1472 of viatical settlements;
1473 (b) In connection with a viatical settlement investment as
1474 defined in s. 517.021, pursuant to s. 517.021(24); or
1475 (c) On residents of this state in connection with a
1476 viatical settlement contract or viatical settlement investment.
1477 Section 21. Subsection (6) of section 744.351, Florida
1478 Statutes, is amended to read:
1479 744.351 Bond of guardian.—
1480 (6) When it is expedient in the judgment of any court
1481 having jurisdiction of any guardianship property, because the
1482 size of the bond required of the guardian is burdensome, or for
1483 other cause, the court may order, in lieu of a bond or in
1484 addition to a lesser bond, that the guardian place all or part
1485 of the property of the ward in a designated financial
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1486 institution under the same conditions and limitations as are
1487 contained in s. 69.031. A designated financial institution shall
1488 also include a dealer, as defined in s. 517.021 s. 517.021(6),
1489 if the dealer is a member of the Security Investment Protection
1490 Corporation and is doing business in the state.
1491 Section 22. Section 517.1205, Florida Statutes, is amended
1492 to read:
1493 517.1205 Registration of associated persons specific as to
1494 securities dealer, investment adviser, or federal covered
1495 adviser identified at time of registration approval.—Inasmuch as
1496 this chapter is intended to protect investors in securities
1497 offerings and other investment transactions regulated by that
1498 chapter, its provisions are to be construed to require full and
1499 fair disclosure of all, but only, those matters material to the
1500 investor's evaluation of the offering or other transaction. It
1501 should, furthermore, be construed to impose the standards
1502 provided by law on all those seeking to participate in the
1503 state's securities industry through registration as a securities
1504 dealer, investment adviser, or associated person. To this end,
1505 it is declared to be the intent of the Legislature that the
1506 registration of associated persons required by law is specific
1507 to the securities dealer, investment adviser, or federal covered
1508 adviser identified at the time such registration is approved.
1509 Notwithstanding any interpretation of law to the contrary, the
1510 historical practice of the Department of Banking and Finance,
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1511 reflected in its rules, that requires a new application for
1512 registration from a previously registered associated person when
1513 that person seeks to be associated with a new securities dealer
1514 or investment adviser is hereby ratified and approved as
1515 consistent with legislative intent. It is, finally, declared to
1516 be the intent of the Legislature that while approval of an
1517 application for registration of a securities dealer, investment
1518 adviser, or associated person requires a finding of compliance
1519 with the applicable registration provisions of this chapter and
1520 applicable rules the applicant's good repute and character, such
1521 finding is precluded by a determination that the applicant may
1522 be denied registration on grounds provided by law.
1523 Section 23. This act shall take effect October 1, 2023.
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CS/HB 253 by Rep. Barnaby
Regulation of Securities
AMENDMENT SUMMARY
April 10, 2023
Amendment 1 by Rep. Barnaby (line 70): The amendment:
Conforms to the Senate bill, by:
• Providing that an “issuer” of a security who is a “general partner,” trustee,” “manager,”
and “managing member” is not eligible to submit a simplified offering circular, in addition
to other issuers who are not eligible to make such a submission under current law.
• Clarifying that an associated person who is “CE inactive” at the end of the calendar year,
regarding continuing education requirements, is not eligible for registration.
The amendment also creates an additional registration exemption applicable to investment
advisers who work with private funds. This implements the relevant parts of a National Council
of Insurance Legislator’s model rule.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 253 (2023)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/O OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Commerce Committee
2 Representative Barnaby offered the following:
3
4 Amendment (with title amendment)
5 Remove lines 70-1051 and insert:
6 Commission Rule 501, 17 C.F.R. s. 230.501, as amended.
7 (2) "Affiliate" means a person that directly, or
8 indirectly through one or more intermediaries, controls, is
9 controlled by, or is under common control with an applicant or
10 registrant.
11 (3)(2) "Associated person" means:
12 (a)1. With respect to a dealer, a natural person who is
13 employed, appointed, or authorized by a dealer and who
14 represents the dealer in effecting or attempting to effect
15 purchases or sales of securities.
16 2. The term does not include the following:
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Amendment No. 1
17 a. A dealer.
18 b. A partner, an officer, or a director of a dealer or a
19 person having a similar status or performing similar functions
20 as a dealer, unless such person is specified in subparagraph 1.
21 c. A dealer's employee whose function is only clerical or
22 ministerial.
23 d. A person whose transactions in this state are limited
24 to those transactions described in s. 15(i)(3) of the Securities
25 Exchange Act of 1934, as amended.
26 (b)1. With respect to an investment adviser, a natural
27 person, including, but not limited to, a partner, an officer, a
28 director, or a branch manager, or a person occupying a similar
29 status or performing similar functions, who:
30 a. Is employed by or associated with, or is subject to the
31 supervision and control of, an investment adviser registered or
32 required to be registered under this chapter; and
33 b. Does any of the following:
34 (I) Makes any recommendation or otherwise gives investment
35 advice regarding securities.
36 (II) Manages accounts or portfolios of clients.
37 (III) Determines which recommendations or advice regarding
38 securities should be given.
39 (IV) Receives compensation to solicit, offer, or negotiate
40 for the sale of investment advisory services.
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Amendment No. 1
41 (V) Supervises employees who perform a function under thi s
42 sub-subparagraph.
43 2. The term does not include the following:
44 a. An investment adviser.
45 b. An employee whose function is only clerical or
46 ministerial or investment adviser, any of the following:
47 1. Any partner, officer, director, or branch manager of a
48 dealer or investment adviser or any person occupying a similar
49 status or performing similar functions;
50 2. Any natural person directly or indirectly controlling
51 or controlled by such dealer or investment adviser, other than
52 an employee whose function is only clerical or ministerial; or
53 3. Any natural person, other than a dealer, employed,
54 appointed, or authorized by a dealer, investment adviser, or
55 issuer to sell securities in any manner or act as an investment
56 adviser as defined in this section.
57
58 The partners of a partnership and the executive officers of a
59 corporation or other association registered as a dealer, and any
60 person whose transactions in this state are limited to those
61 transactions described in s. 15(h)(2) of the Securities Excha nge
62 Act of 1934, are not "associated persons" within the meaning of
63 this definition.
64 (c)(b) With respect to a federal covered adviser, a
65 natural any person who is an investment adviser representative
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Amendment No. 1
66 and who has a place of business in this state, as such terms are
67 defined in Rule 203A-3 of the Securities and Exchange Commission
68 adopted under the Investment Advisers Act of 1940, as amended.
69 (4)(3) "Boiler room" means an enterprise in which two or
70 more persons engage in telephone communications with membe rs of
71 the public using two or more telephones at one location, or at
72 more than one location in a common scheme or enterprise.
73 (5)(4) "Branch office" means any location in this state of
74 a dealer or investment adviser at which one or more associated
75 persons regularly conduct the business of rendering investment
76 advice or effecting any transactions in, or inducing or
77 attempting to induce the purchase or sale of, any security or
78 any location that is held out as such. The commission may adopt
79 by rule exceptions to this definition for dealers in order to
80 maintain consistency with the definition of a branch office used
81 by self-regulatory organizations authorized by the Securities
82 and Exchange Commission, including, but not limited to, the
83 Financial Industry Regulatory Authority. The commission may
84 adopt by rule exceptions to this definition for investment
85 advisers.
86 (6)(7) "Commission" means the Financial Services
87 Commission.
88 (7)(5) "Control," including the terms "controlling,"
89 "controlled by," and "under common control with," means the
90 possession, directly or indirectly, of the power to direct or
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Amendment No. 1
91 cause the direction of the management or policies of a person,
92 whether through the ownership of voting securities, by contract,
93 or otherwise.
94 (8)(6)(a) "Dealer" includes, unless otherwise specified, a
95 person, other than an associated person of a dealer, that
96 engages, for all or part of the person's time, directly or
97 indirectly, as agent or principal in the business of offering,
98 buying, selling, or otherwise dealing or trading in securities
99 issued by another person any of the following:
100 1. Any person, other than an associated person registered
101 under this chapter, who engages, either for all or part of her
102 or his time, directly or indirectly, as broker or principal in
103 the business of offering, buying, selling, or otherwise dealing
104 or trading in securities issued by another person.
105 2. Any issuer who through persons directly compensated or
106 controlled by the issuer engages, either for all or part of her
107 or his time, directly or indirectly, in the business of offering
108 or selling securities which are issued or are proposed to be
109 issued by the issuer.
110 (b) The term "dealer" does not include the following:
111 (a) A licensed practicing attorney who renders or performs
112 any such services in connection with the regular practice of the
113 attorney's profession.
114 (b) A bank authorized to do business in this state, except
115 nonbank subsidiaries of a bank.
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Amendment No. 1
116 (c) A trust company having trust powers that it is
117 authorized to exercise in this state, which renders or performs
118 services in a fiduciary capacity incidental to the exercise of
119 its trust powers.
120 (d) A wholesaler selling exclusively to dealers.
121 (e) A person buying and selling for the person's own
122 account exclusively through a registered dealer or stock
123 exchange.
124 (f) An issuer.
125 (g) A natural person representing an issuer in the
126 purchase, sale, or distribution of the issuer's own securities
127 if such person:
128 1. Is an officer, a director, a limited liability company
129 manager or managing member, or a bona fide employee of the
130 issuer;
131 2. Has not participated in the distribution or sale of
132 securities for any issuer for which such person was, within the
133 preceding 12 months, an officer, a director, a limited liability
134 company manager or managing member, or a bona fide employee;
135 3. Primarily performs, or is intended to perform at the
136 end of the distribution, substantial duties for, or on behalf
137 of, the issuer other than in connection with transactions in
138 securities; and
139 4. Does not receive a commission, compensation, or other
140 consideration for the completed sale of the issuer's securities
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141 apart from the compensation received for regular duties to the
142 issuer.
143 1. Any licensed practicing attorney who renders or
144 performs any of such services in connection with the regular
145 practice of her or his profession;
146 2. Any bank authorized to do business in this state,
147 except nonbank subsidiaries of a bank;
148 3. Any trust company having trust powers which it is
149 authorized to exercise in this state, which renders or performs
150 services in a fiduciary capacity incidental to the exercise of
151 its trust powers;
152 4. Any wholesaler selling exclusively to dealers;
153 5. Any person buying and selling for her or his own
154 account exclusively through a registered dealer or stock
155 exchange; or
156 6. Pursuant to s. 517.061(11), any person associated with
157 an issuer of securities if such person is a bona fide employee
158 of the issuer who has not participated in the distribution or
159 sale of any securities within the preceding 12 months and who
160 primarily performs, or is intended to perform at the end of the
161 distribution, substantial duties for, or on behalf of, the
162 issuer other than in connection with transactions in securities.
163 (9) "Federal covered adviser" means a person that who is
164 registered or required to be registered under s. 203 of the
165 Investment Advisers Act of 1940, as amended. The term "federal
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Amendment No. 1
166 covered adviser" does not include any person that who is
167 excluded from the definition of investment adviser under
168 subparagraphs (14)(b)1.-8.
169 (10) "Federal covered security" means a any security that
170 is a covered security under s. 18(b) of the Securities Act of
171 1933, as amended, or rules and regulations adopted thereunder.
172 (11) "Guarantor" means a person that who agrees in
173 writing, or that who holds itself out to the public as agreeing,
174 to pay the indebtedness of another when due, including, without
175 limitation, payments of principal and interest on a bond,
176 debenture, note, or other evidence of indebtedness, withou t
177 resort by the holder to any other obligor, whether or not such
178 writing expressly states that the person signing is signing as a
179 guarantor. The obligation of a guarantor hereunder shall be a
180 continuing, absolute, and unconditional guaranty of payment,
181 without regard to the validity, regularity, or enforceability of
182 the underlying indebtedness.
183 (12) "Guaranty" means an agreement in a writing in which
184 one party either agrees, or holds itself out to the public as
185 agreeing, to pay the indebtedness of another when due,
186 including, without limitation, payments of principal and
187 interest on a bond, debenture, note, or other evidence of
188 indebtedness, without resort by the holder to any other obligor,
189 whether or not such writing expressly states that the person
190 signing is signing as a guarantor. An agreement that is not
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191 specifically denominated as a guaranty shall nevertheless
192 constitute a guaranty if the holder of the underlying
193 indebtedness or the holder's her or his representative or
194 trustee has the right to sue to enforce the guarantor's
195 obligations under the guaranty. Words of guaranty or equivalent
196 words that which otherwise do not specify guaranty of payment
197 create a presumption that payment, rather than collection, is
198 guaranteed by the guarantor. Any guaranty in writing is
199 enforceable notwithstanding any statute of frauds.
200 (13) "Intermediary" means a natural person residing in
201 this the state or a corporation, trust, partnership, limited
202 liability company, association, or other legal entity registered
203 with the Secretary of State to do business in this the state,
204 which facilitates through its website the offer or sale of
205 securities of an issuer with a principal place of business in
206 this state under s. 517.0611.
207 (14)(a) "Investment adviser" means a includes any person,
208 other than an associated person of an investment adviser or a
209 federal covered adviser, that who receives compensation,
210 directly or indirectly, and engages for all or part of the
211 person's her or his time, directly or indirectly, or through
212 publications or writings, in the business of advising others as
213 to the value of securities or as to the advisability of
214 investments in, purchasing of, or selling of securities , except
215 a dealer whose performance of these services is solely
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Amendment No. 1
216 incidental to the conduct of her or his business as a dealer and
217 who receives no special compensation for such services.
218 (b) The term "investment adviser" does not include the
219 following:
220 1. A dealer or an associated person of a dealer whose
221 performance of services in paragraph (a) is solely incidental to
222 the conduct of the dealer's or associated person's business as a
223 dealer and who does not receive special compensation for those
224 services.
225 2. A Any licensed practicing attorney or certified public
226 accountant whose performance of such services is solely
227 incidental to the practice of the attorney's or accountant's her
228 or his profession.;
229 2. Any licensed certified public accountant whose
230 performance of such services is solely incidental to the
231 practice of her or his profession;
232 3. A Any bank authorized to do business in this state.;
233 4. A Any bank holding company as defined in the Bank
234 Holding Company Act of 1956, as amended, authorized to do
235 business in this state.;
236 5. A Any trust company having trust powers, as defined in
237 s. 658.12, which it is authorized to exercise in this the state,
238 which trust company renders or performs investment advisory
239 services in a fiduciary capacity incidental to the exercise of
240 its trust powers.;
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241 6. A Any person that who renders investment advice
242 exclusively to insurance or investment companies.;
243 7. A Any person that who does not hold itself herself or
244 himself out to the general public as an investment adviser and
245 has no more than 15 clients within 12 consecutive months in this
246 state.;
247 8. A Any person whose transactions in this state are
248 limited to those transactions described in s. 222(d) of the
249 Investment Advisers Act of 1940, as amended. Those clients
250 listed in subparagraph 6. may not be included when determining
251 the number of clients of an investment adviser for purposes of
252 s. 222(d) of the Investment Advisers Act of 1940, as amended.;
253 or
254 9. A federal covered adviser.
255 (15) "Issuer" means a any person that who proposes to
256 issue, has issued, or shall hereafter issue any security. A Any
257 person that who acts as a promoter for and on behalf of a
258 corporation, trust, or unincorporated association or
259 partnership, limited liability company, association, or other
260 legal entity of any kind to be formed shall be deemed an issuer.
261 (16) "Offer to sell," "offer for sale," or "offer" means
262 an any attempt or offer to dispose of, or solicitation of an
263 offer to buy, a security or interest in a security, or an
264 investment or interest in an investment, for value.
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265 (17)(8) "Office" means the Office of Financial Regulation
266 of the commission.
267 (18)(17) "Predecessor" means a person whose the major
268 portion of whose assets has have been acquired directly or
269 indirectly by an issuer.
270 (19)(18) "Principal" means an executive officer of a
271 corporation, partner of a partnership, sole proprietor of a sole
272 proprietorship, trustee of a trust, or any other person with
273 similar supervisory functions with respect to any organization,
274 whether incorporated or unincorporated.
275 (20)(19) "Promoter" includes the following:
276 (a) A Any person that who, acting alone or in conjunction
277 with one or more other persons, directly or indirectly takes the
278 initiative in founding and organizing the business or enterprise
279 of an issuer.
280 (b) A Any person that who, in connection with the founding
281 or organizing of the business or enterprise of an issuer,
282 directly or indirectly receives in consideration of services or
283 property, or both services and property, 10 percent or more of
284 any class of securities of the issuer or 10 percent or more of
285 the proceeds from the sale of any class of securities. However,
286 a person that who receives such securities or proceeds either
287 solely as underwriting commissions or solely in connection with
288 property shall not be deemed a promoter if such person does not
289 otherwise take part in founding and organizing the enterprise.
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Amendment No. 1
290 (21)(20) "Qualified institutional buyer" means a any
291 qualified institutional buyer, as defined in United States
292 Securities and Exchange Commission Rule 144A, 17 C.F.R. s.
293 230.144A(a), under the Securities Act of 1933, as amended, or
294 any foreign buyer that satisfies the minimum financial
295 requirements set forth in such rule.
296 (22)(21) "Sale" or "sell" means a any contract of sale or
297 disposition of an any investment, security, or interest in a
298 security, for value. With respect to a security or interest in a
299 security, the term defined in this subsection does not include
300 preliminary negotiations or agreements between an issuer or any
301 person on whose behalf an offering is to be made and any
302 underwriter or among underwriters who are or are to be in
303 privity of contract with an issuer. Any security given or
304 delivered with, or as a bonus on account of, any purchase of
305 securities or any other thing shall be conclusively presumed to
306 constitute a part of the subject of such purchase and to have
307 been offered and sold for value. Every sale or offer of a
308 warrant or right to purchase or subscribe to another security of
309 the same or another issuer, as well as every sale or offer of a
310 security which gives the holder a present or future right or
311 privilege to convert into another security or another issuer, is
312 considered to include an offer of the other security.
313 (23)(22) "Security" includes any of the following:
314 (a) A note.
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Amendment No. 1
315 (b) A stock.
316 (c) A treasury stock.
317 (d) A bond.
318 (e) A debenture.
319 (f) An evidence of indebtedness.
320 (g) A certificate of deposit.
321 (h) A certificate of deposit for a security.
322 (i) A certificate of interest or participation.
323 (j) A whiskey warehouse receipt or other commodity
324 warehouse receipt.
325 (k) A certificate of interest in a profit-sharing
326 agreement or the right to participate therein.
327 (l) A certificate of interest in an oil, gas, petroleum,
328 mineral, or mining title or lease or the right to participate
329 therein.
330 (m) A collateral trust certificate.
331 (n) A reorganization certificate.
332 (o) A preorganization subscription.
333 (p) A Any transferable share.
334 (q) An investment contract.
335 (r) A beneficial interest in title to property, profits,
336 or earnings.
337 (s) An interest in or under a profit-sharing or
338 participation agreement or scheme.
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Amendment No. 1
339 (t) An Any option contract that which entitles the holder
340 to purchase or sell a given amount of the underlying security at
341 a fixed price within a specified period of time.
342 (u) Any other instrument commonly known as a security,
343 including an interim or temporary bond, debenture, note, or
344 certificate.
345 (v) A Any receipt for a security, or for subscription to a
346 security, or a any right to subscribe to or purchase any
347 security.
348 (w) A viatical settlement investment.
349 (24)(23) "Underwriter" means a person that who has
350 purchased from an issuer or an affiliate of an issuer with a
351 view to, or offers or sells for an issuer or an affil iate of an
352 issuer in connection with, the distribution of any security, or
353 participates or has a direct or indirect participation in any
354 such undertaking, or participates or has a participation in the
355 direct or indirect underwriting of any such undertaking ; except
356 that a person is shall be presumed not to be an underwriter with
357 respect to any security which it she or he has owned
358 beneficially for at least 1 year; and, further, a dealer is
359 shall not be considered an underwriter with respect to any
360 securities which do not represent part of an unsold allotment to
361 or subscription by the dealer as a participant in the
362 distribution of such securities by the issuer or an affiliate of
363 the issuer; and, further, in the case of securities acquired on
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Amendment No. 1
364 the conversion of another security without payment of additional
365 consideration, the length of time such securities have been
366 beneficially owned by a person includes the period during which
367 the convertible security was beneficially owned and the period
368 during which the security acquired on conversion has been
369 beneficially owned.
370 (25)(24) "Viatical settlement investment" means an
371 agreement for the purchase, sale, assignment, transfer, devise,
372 or bequest of all or any portion of a legal or equitable
373 interest in a viaticated policy as defined in chapter 626.
374 Section 2. Paragraph (d) of subsection (3) of section
375 517.072, Florida Statutes, is amended, and subsection (4) is
376 added to that section, to read:
377 517.072 Viatical settlement investments.—
378 (3) The registration provisions of ss. 517.07 and 517.12
379 do not apply to any of the following transactions in viatical
380 settlement investments; however, such transactions in viatical
381 settlement investments are subject to the provisions of ss.
382 517.301, 517.311, and 517.312:
383 (d) The transfer or assignment of a viaticated policy to a
384 bank, trust company, savings institution, insurance company,
385 dealer, investment company as defined in the Investment Company
386 Act of 1940, as amended, pension or profit-sharing trust, or
387 qualified institutional buyer as defined in United States
388 Securities and Exchange Commission Rule 144A, 17 C.F.R. s.
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Amendment No. 1
389 230.144A(a), or to an accredited investor as defined by Rule 501
390 of Regulation D of the Securities Act Rules, provided such
391 transfer or assignment is not for the direct or indirect
392 promotion of any scheme or enterprise with the intent of
393 violating or evading any provision of this chapter.
394 (4) The commission may establish by rule requirements and
395 standards for disclosures to purchasers of viatical settlement
396 investments and recordkeeping requirements for sellers of
397 viatical settlement investments.
398 Section 3. Paragraphs (a), (g), and (n) of subsection (3)
399 and subsections (6) and (8) of section 517.081, Florida
400 Statutes, are amended to read:
401 517.081 Registration procedure.—
402 (3) The office may require the applicant to submit to the
403 office the following information concerning the issuer and such
404 other relevant information as the office may in its judgment
405 deem necessary to enable it to ascertain whether such s ecurities
406 shall be registered pursuant to the provisions of this section:
407 (a) The names and addresses of:
408 1. All the directors, trustees, and officers, if the
409 issuer is be a corporation, association, or trust.
410 2. All the managers or managing members, if the issuer is
411 a limited liability company.
412 3. ; of All the partners, if the issuer is be a
413 partnership.
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Amendment No. 1
414 4. ; or of The issuer, if the issuer is a sole
415 proprietorship or natural person be an individual.
416 (g)1. A specimen copy of the securities certificate, if
417 applicable, security and a copy of any circular, prospectus,
418 advertisement, or other description of such securities.
419 2. The commission shall adopt a form for a simplified
420 offering circular to be used solely by corporations to register,
421 under this section, securities of the corporation that are sold
422 in offerings in which the aggregate offering price in any
423 consecutive 12-month period does not exceed the amount provided
424 in s. 3(b) of the Securities Act of 1933, as amended. The
425 following issuers shall not be eligible to submit a simplified
426 offering circular adopted pursuant to this subparagraph:
427 a. An issuer seeking to register securities for resale by
428 persons other than the issuer.
429 b. An issuer that who is subject to any of the
430 disqualifications described in 17 C.F.R. s. 230.262, adopted
431 pursuant to the Securities Act of 1933, as amended, or that who
432 has been or is engaged or is about to engage in an activity that
433 would be grounds for denial, revocation, or suspension under s.
434 517.111. For purposes of this subparagraph, an issuer includes
435 an issuer's director, officer, general partner, manager or
436 managing member, trustee, or equity owner shareholder who owns
437 at least 10 percent of the ownership interests shares of the
438 issuer, promoter, or selling agent of the securities to be
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Amendment No. 1
439 offered or any officer, director, or partner, or manager or
440 managing member of such selling agent.
441 c. An issuer that who is a development-stage company that
442 either has no specific business plan or purpose or has indicated
443 that its business plan is to merge with an unidentified company
444 or companies.
445 d. An issuer of offerings in which the specific business
446 or properties cannot be described.
447 e. Any issuer the office determines is ineligible because
448 if the form does would not provide full and fair disclosure of
449 material information for the type of offering to be registered
450 by the issuer.
451 f. Any issuer that corporation which has failed to provide
452 the office the reports required for a previous offering
453 registered pursuant to this subparagraph.
454
455 As a condition precedent to qualifying for use of the simplified
456 offering circular, an issuer a corporation shall agree to
457 provide the office with an annual financial report containing a
458 balance sheet as of the end of the issuer's fiscal year and a
459 statement of income for such year, prepared in accordance with
460 United States generally accepted accounting principles and
461 accompanied by an independent accountant's report. If the issuer
462 has more than 100 security holders at the end of a fiscal year,
463 the financial statements must be audited. Annual financial
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464 reports must be filed with the office within 90 days after the
465 close of the issuer's fiscal year for each of the first 5 years
466 following the effective date of the registration.
467 (n) If the issuer is a corporation, there shall be filed
468 with the application a copy of its articles of incorporation
469 with all amendments and of its existing bylaws, if not already
470 on file in the office. If the issuer is a limited liability
471 company, there shall be filed with the application a copy of the
472 articles of organization with all the amendments and a copy of
473 the company's operating agreement as may be amended , if not
474 already on file with the office. If the issuer is a trustee,
475 there shall be filed with the application a copy of all
476 instruments by which the trust is created or declared and in
477 which it is accepted and acknowledged. If the issuer is a
478 partnership, unincorporated association, joint-stock company, or
479 any other form of organization whatsoever, there shall be filed
480 with the application a copy of its articles of partnership or
481 association and all other papers pertaining to its organization,
482 if not already on file in the office.
483 (6) An issuer filing an application under this section
484 shall, at the time of filing, pay the office a nonreturnable fee
485 of $1,000 per application for each offering that exceeds the
486 amount provided in s. 3(b) of the Securities Act of 1933, as
487 amended, or $200 per application for each offering that does not
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Amendment No. 1
488 exceed the amount provided in s. 3(b) of the Securities Act of
489 1933, as amended.
490 (8) The office shall deem an application to register
491 securities filed with the office abandoned if the issuer or any
492 person acting on behalf of the issuer has failed to complete
493 timely an application as specified by commission rule The
494 commission may by rule establish requirements and standards
495 for:
496 (a) Disclosures to purchasers of viatical settlement
497 investments.
498 (b) Recordkeeping requirements for sellers of viatical
499 settlement investments.
500 Section 4. Section 517.082, Florida Statutes, is amended
501 to read:
502 517.082 Notification Registration by notification; federal
503 registration statements.—
504 (1) Except as provided in subsection (3), Securities
505 offered or sold pursuant to a registration statement filed under
506 the Securities Act of 1933, as amended, are shall be entitled to
507 registration by notification in the manner provided in
508 subsection (2), provided that before prior to the offer or sale
509 the registration statement has become effective.
510 (2) An application for registration by notification shall
511 be filed with the office, shall contain the following
512 information, and shall be accompanied by all of the following:
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513 (a) An application to sell executed by the issuer, any
514 person on whose behalf the offering is made, a dealer registered
515 under this chapter, or any duly authorized agent of any such
516 person, setting forth the name and address of the applicant, the
517 name and address of the issuer, and the title of the securities
518 to be offered and sold.;
519 (b) Copies of such documents filed with the Securities and
520 Exchange Commission as the Financial Services Commission may by
521 rule require.;
522 (c) An irrevocable written consent to service as required
523 by s. 517.101.; and
524 (d) A nonreturnable fee of $1,000 per application.
525
526 A registration under this section becomes effective when the
527 federal registration statement becomes effective or as of the
528 date the application is filed with the office, whichever is
529 later, provided that, in addition to the items listed in
530 paragraphs (a)-(d), the office has received written notification
531 of effective registration under the Securities Act of 1933 , as
532 amended, or the Investment Company Act of 1940, as amended,
533 within 10 business days after from the date federal registration
534 is granted. Failure to provide all the information required by
535 this subsection to the office within 60 days after of the date
536 the registration statement becomes effective with the Securities
537 and Exchange Commission shall be a violation of this chapter.
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Amendment No. 1
538 (3) Except for units of limited partnership interests or
539 such other securities as the commission describes by rule as
540 exempt from this subsection due to high investment quality, the
541 provisions of this section may not be used to register
542 securities if the offering price at the time of effectiveness
543 with the Securities and Exchange Commission is $5 or less per
544 share, unless such securities are listed or designated, or
545 approved for listing or designation upon notice of issuance, on
546 a stock exchange registered pursuant to the Securities Exchange
547 Act of 1934, as amended, or on the National Association of
548 Securities Dealers Automated Quotation (NASDAQ) System, or
549 unless such securities are of the same issuer and of senior or
550 substantially equal rank to securities so listed or designated.
551 (4) In lieu of filing with the office the application,
552 fees, and documents for registration required by subsection (2),
553 the commission may establish, by rule, procedures for depositing
554 fees and filing documents by electronic means, provided such
555 procedures provide the office with the information and data
556 required by this section.
557 (5) If the Securities and Exchange Commission has not
558 declared effective the applicant's federal registration
559 statement within 180 days after the applicant's filing with the
560 office of an application for registration by notification, the
561 office must deem the application abandoned.
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562 Section 5. Section 517.111, Florida Statutes, is amended
563 to read:
564 517.111 Revocation or denial of registration of
565 securities.—
566 (1) The office may revoke or suspend the registration of
567 any security, or may deny any application to register
568 securities, if, upon examination or investigation into the
569 affairs of the issuer of such security, the office determines it
570 shall appear that:
571 (a) The issuer cannot pay its debts as they become due in
572 the usual course of business is insolvent;
573 (b) The issuer or any officer, director, manager or
574 managing member, or control person of the issuer has violated
575 any provision of this chapter or any rule made hereunder or any
576 order of the office of which such issuer has notice;
577 (c) The issuer or any officer, director, manager or
578 managing member, or control person of the issuer has been or is
579 engaged or is about to engage in fraudulent transactions;
580 (d) The issuer or any officer, director, manager or
581 managing member, or control person of the issuer has been found
582 guilty of a fraudulent act in connection with any sale of
583 securities, has engaged, is engaged, or is about to engage, in
584 making a fictitious sale or purchase of any security, or in any
585 practice or sale of any security which is fraudulent or a
586 violation of any law;
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587 (e) The issuer or any officer, director, manager or
588 managing member, or control person of the issuer has had a final
589 judgment entered against such issuer or person in a civil action
590 on the grounds of fraud, embezzlement, misrepresentation, or
591 deceit;
592 (f) The issuer or any officer, director, manager or
593 managing member, or control person of the issuer has engaged in
594 any action that would be grounds for revocation, denial, or
595 suspension under s. 517.161(1) demonstrated any evidence of
596 unworthiness;
597 (g) The issuer or any officer, director, manager or
598 managing member, or control person of the issuer is in any other
599 way dishonest or has made any fraudulent representations or
600 failed to disclose any material information in any prospectus or
601 in any circular or other literature that has been distributed
602 concerning the issuer or its securities;
603 (h) The security registered or sought to be registered is
604 the subject of an injunction entered by a court of competent
605 jurisdiction or is the subject of an administrative stop -order
606 or similar order prohibiting the offer or sale of the security;
607 or
608 (i) For any security for which registration has been
609 applied pursuant to s. 517.081, the terms of the offer or sale
610 of such securities would not be fair, just, or equitable ; or
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611 (j) The issuer or any person acting on behalf of the
612 issuer has failed to timely complete any application for
613 registration filed with the office pursuant to the provisions of
614 s. 517.081 or s. 517.082 or any rule adopted under such
615 sections.
616 (2) In making such examination or investigation, the
617 office shall have access to and may compel the production of all
618 the books and papers of such issuer and may administer oaths to
619 and examine the officers of such issuer or any other person
620 connected therewith as to its business and affairs and may also
621 require a balance sheet exhibiting the assets and liabilities of
622 any such issuer or its income statement, or both, to be
623 certified to by a public accountant either of this state or of
624 any other state where the issuer's business is located. Whenever
625 the office deems it necessary, it may also require such balance
626 sheet or income statement, or both, to be made more specific in
627 such particulars as the office may require.
628 (3)(2) If any issuer refuses shall refuse to permit an
629 examination or investigation to be made by the office, it shall
630 be proper ground for revocation of registration.
631 (4)(3) If the office deems it necessary, it may enter an
632 order suspending the right to sell securities pending any
633 examination or investigation, provided that the order shall
634 state the office's grounds for taking such action.
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635 (5)(4) Notice of the entry of such order shall be given
636 personally or by mail, personally, by telephone confirmed in
637 writing, or by telegraph to the issuer. Before such order is
638 made final, the issuer applying for registration shall, on
639 application, be entitled to a hearing.
640 (6)(5) The office may deny any request to terminate any
641 registration or to withdraw any application for registration if
642 the office believes that an act which would be grounds for
643 denial, suspension, or revocation under this chapter has been
644 committed.
645 Section 6. Subsections (3) through (22) of section 517.12,
646 Florida Statutes, are renumbered as subsections (2) through
647 (21), respectively, new subsection (22) is added, and subsection
648 (1), present subsections (2) and (3), paragraph (b) of present
649 subsection (6), present subsections (7) and (11), paragraph (b)
650 of present subsection (15), and present subsections (20) and
651 (21) of that section are amended, to read:
652 517.12 Registration of dealers, associated persons,
653 intermediaries, and investment advisers.—
654 (1) No dealer or, associated person, or issuer of
655 securities shall sell or offer for sale any securities in or
656 from offices in this state, or sell securities to persons in
657 this state from offices outside this state, by mail or
658 otherwise, unless the person is has been registered with the
659 office as a dealer or as an associated person of a dealer
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660 pursuant to the provisions of this section. The office shall not
661 register any person as an associated person of a dealer unless
662 the dealer with which the applicant seeks registration is
663 lawfully registered with the office pursuant to this chapter.
664 (2) The registration requirements of this section do not
665 apply to the issuers of securities exempted by s. 517.051(1)-(8)
666 and (10).
667 (2)(3) Except as otherwise provided in s.
668 517.061(11)(a)4., (13), (16), (17), or (19), The registration
669 requirements of this section do not apply in a transaction
670 exempted by s. 517.061(1)-(10) and (12), s. 517.061(1)-(12),
671 (14), and (15).
672 (5)(6) A dealer, associated person, or investment adviser,
673 in order to obtain registration, must file with the office a
674 written application, on a form which the commission may by rule
675 prescribe. The commission may establish, by rule, procedures for
676 depositing fees and filing documents by electronic means
677 provided such procedures provide the office with the information
678 and data required by this section. Each dealer or investment
679 adviser must also file an irrevocable written consent to service
680 of civil process similar to that provided for in s. 517.101. The
681 application shall contain such information as the commission or
682 office may require concerning such matters as:
683 (b) The applicant's form and place of organization; and,
684 if the applicant is:
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685 1. A corporation, a copy of its articles of incorporation
686 and amendments to the articles of incorporation;
687 2. A limited liability company, a copy of its articles of
688 organization with amendments to its articles; or
689 3., if A partnership, a copy of the partnership agreement.
690 (6)(7) The application must also contain such information
691 as the commission or office may require about the applicant; any
692 member, principal, or director of the applicant or any person
693 having a similar status or performing similar functions; any
694 person directly or indirectly controlling the applicant; or any
695 employee of a dealer or of an investment adviser rendering
696 investment advisory services. Each applicant and any direct
697 owners, principals, or indirect owners that are required to be
698 reported on Form BD or Form ADV pursuant to subsection (14) (15)
699 shall submit fingerprints for live-scan processing in accordance
700 with rules adopted by the commission. The fingerprints may be
701 submitted through a third-party vendor authorized by the
702 Department of Law Enforcement to provide live-scan
703 fingerprinting. The costs of fingerprint processing shall be
704 borne by the person subject to the background check. The
705 Department of Law Enforcement shall conduct a state criminal
706 history background check, and a federal criminal history
707 background check must be conducted through the Federal Bureau of
708 Investigation. The office shall review the results of the state
709 and federal criminal history background checks and determine
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710 whether the applicant meets licensure requirements. The
711 commission may waive, by rule, the requirement that applicants,
712 including any direct owners, principals, or indirect owners that
713 are required to be reported on Form BD or Form ADV pursuant to
714 subsection (14) (15), submit fingerprints or the requirement
715 that such fingerprints be processed by the Department of Law
716 Enforcement or the Federal Bureau of Investigation. The
717 commission or office may require information about any such
718 applicant or person concerning such matters as:
719 (a) The applicant's or person's His or her full name, and
720 any other names by which the applicant or person he or she may
721 have been known, and the applicant's or person's his or her age,
722 social security number, photograph, qualifications, and
723 educational and business history.
724 (b) Any injunction or administrative order by a state or
725 federal agency, national securities exchange, or national
726 securities association involving a security or any aspect of a
727 dealer's or investment adviser's regulated the securities
728 business and any injunction or administrative order by a state
729 or federal agency regulating banking, insurance, finance, or
730 small loan companies, real estate, mortgage brokers, or other
731 related or similar industries, which injunctions or
732 administrative orders relate to such person.
733 (c) The applicant's or person's His or her conviction of,
734 or plea of nolo contendere to, a criminal offense or the
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735 applicant's or person's his or her commission of any acts which
736 would be grounds for refusal of an application under s. 517.161.
737 (d) The names and addresses of other persons of whom the
738 office may inquire as to the applicant's or person's his or her
739 character, reputation, and financial responsibility.
740 (10)(a)(11)(a) If the office finds that the applicant is
741 of good repute and character and has complied with the
742 applicable registration provisions of this chapter and the rules
743 made pursuant hereto, it shall register the applicant unless the
744 applicant is otherwise disqualified for registration pursuant to
745 law. The registration of each dealer, investment adviser, and
746 associated person expires on December 31 of the year the
747 registration became effective unless the registrant has renewed
748 its his or her registration on or before that date. Registration
749 may be renewed by furnishing such information as the commission
750 may require, together with payment of the fee required in
751 paragraph (9)(a) (10)(a) for dealers, investment advisers, or
752 associated persons and the payment of any amount lawfully due
753 and owing to the office pursuant to any order of the office or
754 pursuant to any agreement with the office. Any dealer,
755 investment adviser, or associated person who has not renewed a
756 registration by the time the current registration expires may
757 request reinstatement of such registration by filing with the
758 office, on or before January 31 of the year following the year
759 of expiration, such information as may be required by the
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Amendment No. 1
760 commission, together with payment of the fee required in
761 paragraph (9)(a) (10)(a) for dealers, investment advisers, or
762 associated persons and a late fee equal to the amount of such
763 fee. Any reinstatement of registration granted by the office
764 during the month of January shall be deemed effective
765 retroactive to January 1 of that year.
766 (b) The office shall waive the $50 assessment fee for an
767 associated person required by paragraph (9)(a) (10)(a) for a
768 registrant renewing his or her registration who:
769 1. Is an active duty member of the United States Armed
770 Forces or the spouse of such member;
771 2. Is or was a member of the United States Armed Forces
772 and served on active duty within the 2 years preceding the
773 expiration date of the registration pursuant to paragraph (a).
774 To qualify for the fee waiver, a registrant who is a former
775 member of the United States Armed Forces who served on active
776 duty within the 2 years preceding the expiration date of the
777 registration must have received an honorable discharge upon
778 separation or discharge from the United States Armed Forces; or
779 3. Is the surviving spouse of a member of the United
780 States Armed Forces if the member was serving on active duty at
781 the time of death and died within the 2 years preceding the
782 surviving spouse's registration expiration date pursuant to
783 paragraph (a).
784
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Amendment No. 1
785 A registrant seeking such fee waiver must submit proof, in a
786 form prescribed by commission rule, that the registrant meets
787 one of the qualifications in this paragraph.
788 (14)(15)
789 (b) In lieu of filing with the office the applications
790 specified in subsection (5) (6), the fees required by subsection
791 (9) (10), the renewals required by subsection (10) (11), and the
792 termination notices required by subsection (11) (12), the
793 commission may by rule establish procedures for the deposit of
794 such fees and documents with the Central Registration Depository
795 or the Investment Adviser Registration Depository of the
796 Financial Industry Regulatory Authority, as developed under
797 contract with the North American Securities Administrators
798 Association, Inc.
799 (19)(20) An intermediary may not engage in business in
800 this state unless the intermediary is registered as a dealer or
801 as an intermediary with the office pursuant to this section to
802 facilitate the offer or sale of securities in accordance with s.
803 517.0611. An intermediary, in order to obtain registration, must
804 file with the office a written application on a form prescribed
805 by commission rule and pay a registration fee of $200. The fees
806 under this subsection shall be deposited into the Regulatory
807 Trust Fund of the office. The commission may establish by rule
808 procedures for depositing fees and filing documents by
809 electronic means if such procedures provide the office with the
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Amendment No. 1
810 information and data required by this section. Each intermediary
811 must also file an irrevocable written consent to service of
812 civil process, as provided in s. 517.101.
813 (a) The application must contain such information as the
814 commission or office may require concerning:
815 1. The name of the applicant and address of its principal
816 office and each office in this state.
817 2. The applicant's form and place of organization; and, if
818 the applicant is:
819 a. A corporation, a copy of its articles of incorporation
820 and amendments to the articles of incorporation;
821 b. A limited liability company, a copy of its articles of
822 organization and amendments to the articles and a cop y of the
823 company's operating agreement as may be amended; or
824 c., if A partnership, a copy of the partnership agreement.
825 3. The website address where securities of the issuer will
826 be offered.
827 4. Contact information.
828 (b) The application must also contain such information as
829 the commission may require by rule about the applicant; any
830 member, principal, or director of the applicant or any person
831 having a similar status or performing similar functions; or any
832 persons directly or indirectly controlling the applicant. Each
833 applicant and any direct owners, principals, or indirect owners
834 that are required to be reported on a form adopted by commission
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COMMITTEE/SUBCOMMITTEE AMENDMENT
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Amendment No. 1
835 rule shall submit fingerprints for live-scan processing in
836 accordance with rules adopted by the commission. The
837 fingerprints may be submitted through a third-party vendor
838 authorized by the Department of Law Enforcement to provide live -
839 scan fingerprinting. The costs of fingerprint processing shall
840 be borne by the person subject to the background check. The
841 Department of Law Enforcement shall conduct a state criminal
842 history background check, and a federal criminal history
843 background check must be conducted through the Federal Bureau of
844 Investigation. The office shall review the results of the state
845 and federal criminal history background checks and determine
846 whether the applicant meets registration requirements. The
847 commission may waive, by rule, the requirement that applicants,
848 including any direct owners, principals, or indirect owners,
849 which are required to be reported on a form adopted by
850 commission rule, submit fingerprints or the requirement that
851 such fingerprints be processed by the Department of Law
852 Enforcement or the Federal Bureau of Investigation. The
853 commission, by rule, or the office may require informat ion about
854 any applicant or person, including:
855 1. The applicant's or person's His or her full name and
856 any other names by which the applicant or person he or she may
857 have been known and the applicant's or person's his or her age,
858 social security number, photograph, qualifications, and
859 educational and business history.
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Amendment No. 1
860 2. Any injunction or administrative order by a state or
861 federal agency, national securities exchange, or national
862 securities association involving a security or any aspect of an
863 intermediary's regulated the securities business and any
864 injunction or administrative order by a state or federal agency
865 regulating banking, insurance, finance, or small loan companies,
866 real estate, mortgage brokers, or other related or similar
867 industries, which relate to such person.
868 3. The applicant's or person's His or her conviction of,
869 or plea of nolo contendere to, a criminal offense or the
870 applicant's or person's his or her commission of any acts that
871 would be grounds for refusal of an application under s. 51 7.161.
872 (c) The application must be amended within 30 days if any
873 information contained in the form becomes inaccurate for any
874 reason.
875 (d) An intermediary or persons affiliated with the
876 intermediary are not subject to any disqualification described
877 in s. 517.1611 or United States Securities and Exchange
878 Commission Rule 506(d), 17 C.F.R. 230.506(d), adopted pursuant
879 to the Securities Act of 1933, as amended. Each director,
880 officer, manager or managing member, control person of the
881 issuer, any person occupying a similar status or performing a
882 similar function, and each person holding more than 20 percent
883 of the ownership interests shares of the intermediary is subject
884 to this requirement.
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Amendment No. 1
885 (e) If the office finds that the applicant is of good
886 repute and character and has complied with the applicable
887 registration provisions of this chapter and the rules adopted
888 thereunder, it shall register the applicant. The registration of
889 each intermediary expires on December 31 of the year the
890 registration became effective unless the registrant renews his
891 or her registration on or before that date. Registration may be
892 renewed by furnishing such information as the commission may
893 require by rule, together with payment of a $200 fee and the
894 payment of any amount due to the office pursuant to any order of
895 the office or pursuant to any agreement with the office. An
896 intermediary who has not renewed a registration by the time that
897 the current registration expires may request reinstatement of
898 such registration by filing with the office, on or before
899 January 31 of the year following the year of expiration, such
900 information as required by the commission, together with payment
901 of the $200 fee and a late fee of $200. Any reinstatement of
902 registration granted by the office during the month of January
903 is deemed effective retroactive to January 1 of that year.
904 (20)(21) The registration requirements of this section do
905 not apply to any general lines insurance agent or life insurance
906 agent licensed under chapter 626, for the sale of a security as
907 defined in s. 517.021(23)(g) s. 517.021(22)(g), if the
908 individual is directly authorized by the issuer to offer or sell
909 the security on behalf of the issuer and the issuer is a
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Amendment No. 1
910 federally chartered savings bank subject to regulation by the
911 Federal Deposit Insurance Corporation. Actions under this
912 subsection shall constitute activity under the insurance agent's
913 license for purposes of ss. 626.611 and 626.621.
914 (22) Registration exemption for investment advisers to
915 private funds.
916 (a) For purposes of this subsection, the following
917 definitions shall apply:
918 1. "Advisory affiliate" means an "advisory affiliate" as
919 defined in the Glossary of Terms to Form ADV (Uniform
920 Application for Investment Adviser Registration) (17 C.F.R. s.
921 279.1).
922 2. “Exempt reporting adviser” means an “exempt reporting
923 adviser” as defined in the Glossary of Terms to Form ADV
924 (Uniform Application for Investment Adviser Registration) (17
925 C.F.R. s. 279.1).
926 3. “Private fund adviser” means an investment adviser who
927 provides advice solely to one or more qualifying private funds.
928 4. “Qualifying private fund” means:
929 a. A private fund that meets the definition of a
930 “qualifying private fund” in SEC Rule 203(m)-1, 17 C.F.R.
931 275.203(m)-1;
932 b. A private fund that meets the definition of a “venture
933 capital fund” in SEC Rule 203(l)-1, 17 C.F.R. s. 275.203(l)-1;
934 or
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Amendment No. 1
935 c. A "venture capital operating company" as defined in
936 Rule 2510.3-101(d) adopted by the U.S. Department of Labor under
937 the Employee Retirement Income Security Act of 1974, as amend ed
938 (29 C.F.R. s. 2510.3- 101(d)).
939 5. “3(c)(1) fund” means a qualifying private fund that is
940 eligible for the exclusion from the definition of an investment
941 company under section 3(c)(1) of the Investment Company Act of
942 1940, as amended (15 U.S.C. 80a-3(c)(1)).
943 (b) Subject to the additional requirements of paragraph
944 (c) below, a private fund adviser shall be exempt from the
945 registration requirements of s. 517.12, if the private fund
946 adviser satisfies the following conditions:
947 1. neither the private fund adviser nor any of its
948 advisory affiliates are subject to an event that would
949 disqualify an issuer under Rule 506(d)(1) of SEC Regulation D,
950 17 C.F.R. s. 230.506(d)(1); and
951 2. the private fund adviser files with the office each
952 report and amendment thereto that an exempt reporting adviser is
953 required to file with the Securities and Exchange Commission
954 pursuant to SEC Rule 204-4, 17 C.F.R. s. 275.204-4.
955 (c) In order to qualify for the exemption described in
956 paragraph (b) of this subsection, a private fund adviser who
957 advises at least one (3)(c)(1) fund that is not a venture
958 capital fund shall, in addition to satisfying each of the
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Amendment No. 1
959 conditions specified in paragraph (b), comply with the following
960 requirements:
961 1. The private fund adviser shall advise only those
962 3(c)(1) funds (other than venture capital funds) whose
963 outstanding securities (other than short-term paper) are
964 beneficially owned entirely by accredited investors; and
965 2. At the time of purchase, the private fund adviser sh all
966 disclose the following in writing to each beneficial owner of a
967 3(c)(1) fund that is not a venture capital fund:
968 a. All services, if any, to be provided to individual
969 beneficial owners;
970 b. All duties, if any, the investment adviser owes to the
971 beneficial owners; and
972 c. Any other material information affecting the rights or
973 responsibilities of the beneficial owners.
974 (d) If a private fund adviser is registered with the
975 Securities and Exchange Commission, the adviser shall not be
976 eligible for this exemption and shall comply with the state
977 notice filing requirements applicable to federal covered
978 investment advisers in s. 517.1201.
979 (e) A person is exempt from the registration requirements
980 of s. 517.12 if he or she is employed by or associated with an
981 investment adviser that is exempt from registration in this
982 state pursuant to this subsection and does not otherwise act as
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Amendment No. 1
983 an associated person of an investment adviser or federal covered
984 adviser.
985 (f) The report filings described in subparagraph (b)2. above
986 shall be made electronically through the Investment Adviser
987 Registration Depository. A report shall be deemed filed with the
988 office when the report has been filed and accepted by the
989 Depository on the office's behalf.
990 Section 7. Section 517.1214, Florida Statutes, is created
991 to read:
992 517.1214 Continuing education requirements for associated
993 persons of investment advisers and federal covered advisers. —
994 (1) As used in this section, the term:
995 (a) "Approved continuing education content" means the
996 materials, written, oral, or otherwise, which have been approved
997 by NASAA or its designee and which make up the educational
998 program provided to an associated person under this section.
999 (b) "Credit" means a unit designated by NASAA or its
1000 designee as at least 50 minutes of educational instruction.
1001 (c) "Home state" means the state in which an associated
1002 person of an investment adviser or a federal covered adviser has
1003 his or her principal office and place of business.
1004 (d) "NASAA" means the North American Securities
1005 Administrators Association, Inc.
1006 (e) "Reporting period" means one 12-month period beginning
1007 January 1 and ending December 31. An associated person's initial
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Amendment No. 1
1008 reporting period with this state commences the first day of the
1009 first full reporting period after the individual is registered
1010 or required to be registered with this state.
1011 (2) By December 31, 2024, and each December 31 thereafter,
1012 each associated person of an investment adviser or a federal
1013 covered adviser shall complete the following continuing
1014 education content requirements offered by a person that NASAA or
1015 its designee has authorized to provide the continuing education
1016 content required by this section:
1017 (a) Six credits of approved continuing education content
1018 that addresses an associated person's ethical and regulatory
1019 obligations, with at least 3 hours covering the topic of ethics;
1020 and
1021 (b) Six credits of approved continuing education content
1022 that addresses an associated person's skills and knowledge
1023 regarding financial products, investment features, and practices
1024 in the investment advisory industry.
1025 (3) An associated person of an investment adviser or
1026 federal covered adviser who is also registered as an associated
1027 person of a Financial Industry Regulatory Authority (FINRA)
1028 member dealer and who complies with FINRA's continuing education
1029 requirements is considered to be in compliance with this
1030 section's products and practice requirement for each applicable
1031 reporting period, provided that the FINRA continuing education
1032 content is approved continuing education content.
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Amendment No. 1
1033 (4) Credits of continuing education completed by an
1034 associated person who was awarded and currently holds a
1035 credential that qualifies for examination waiver by passing any
1036 tests as prescribed in s. 15(b)(7) of the Securities Exchange
1037 Act of 1934, as amended, comply with paragraphs (2)(a) and (b),
1038 provided all of the following conditions are met:
1039 (a) The associated person completes the credits of
1040 continuing education as a condition of maintaining the
1041 credential for the relevant reporting period.
1042 (b) The credits of continuing education completed during
1043 the relevant reporting period by the associated person are
1044 mandatory to maintain the credential.
1045 (c) The continuing education content provided by the
1046 credentialing organization during the relevant reporting period
1047 is approved continuing education content.
1048 (5) Each associated person is responsible for ensuring
1049 that the authorized provider reports the associated person's
1050 completion of the applicable continuing education requirements.
1051 (6) An associated person who completes credits of
1052 continuing education in excess of the credits required for the
1053 reporting period may not carry forward excess credits to a
1054 subsequent reporting period.
1055 (7) An associated person who fails to comply with this
1056 section by the end of a reporting period shall renew as "CE
1057 inactive" at the close of the calendar year in this state until
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Amendment No. 1
1058 the associated person completes and reports all required
1059 continuing education credits for all reporting periods as
1060 required by this section. An associated person who is "CE
1061 inactive" at the close of the next calendar year is not eligible
1062 for associated person registration or renewal of associated
1063 person registration.
1064
1065 -----------------------------------------------------
1066 T I T L E A M E N D M E N T
1067 Remove line 24 and insert:
1068 F.S.; providing a registration exemption for investment advisers
1069 to private funds; revising applicability of registration
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CS/HB 439
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 439 Land Use and Development Regulations
SPONSOR(S): Local Administration, Federal Affairs & Special Districts Subcommittee, McClain
TIED BILLS: IDEN./SIM. BILLS: SB 1604
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Local Administration, Federal Affairs & Special 13 Y, 3 N, As CS Mwakyanjala Darden
Districts Subcommittee
2) Commerce Committee Larkin Hamon
3) State Affairs Committee
SUMMARY ANALYSIS
The Florida Land Use and Environmental Dispute Resolution Act (FLUEDRA) provides an informal mechanism for
a property owner to challenge a government action that may infringe on his or her property without having to file a
lawsuit. Under FLUEDRA, a property owner who believes that a government notice or order unfairly or
unreasonably burdens his or her property may file a request for relief with the government that issued the notice or
order, which will then be turned over to a special magistrate with the authority to facilitate a resolution.
Related to FLUEDRA, the bill:
Allows a negotiated settlement between a property owner and a local government to include resolutions
similar to those a special magistrate is authorized to recommend;
Provides that the special magistrate’s recommendations or negotiated settlements inconsistent with the
local comprehensive plan are deemed consistent if the recommendations or settlements are found to
protect the public interest;
Each county and municipality is required to plan for future development and growth by adopting, implementing,
and amending, as necessary, a comprehensive plan. Each comprehensive plan contains elements that address
future land use, housing, transportation, infrastructure, coastal management, conservation, recreation and open
space, intergovernmental coordination, and capital improvements. The comprehensive plan is implemented via
land development regulations.
Related to comprehensive planning, the bill:
Revises definitions and data sources used in consideration of the comprehensive plan and plan
amendments;
Increases the length of required planning period to 10 years, from 5 years, and to 20 years, from 10 years;
Removes a list of indicators, a local government must consider relating to urban sprawl, instead requiring
local governments to discourage urban sprawl by more effectively planning for future growth;
Revises the comprehensive plan evaluation and appraisal process to ensure timely updates;
Requires land development regulations adopted by a local government to establish minimum lot sizes
consistent with the maximum density authorized by the comprehensive plan and to provide standards for
infill residential development; and
Prohibits a local government from requiring building design elements for certain residential structures in
planned unit developments, master planned communities, or communities with a design review board or
architectural review board created on or after January 1, 2020.
The bill does not appear to have a fiscal impact on state or local governments.
The bill provides an effective date of July 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h0439a.COM
DATE: 4/6/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
Florida Land Use and Environmental Dispute Resolution Act
In 1995, the Legislature adopted the Florida Land Use and Environmental Dispute Resolution Act
(“FLUEDRA”), codified as s. 70.51, F.S., to facilitate the resolution of disputes between property owners
and government entities.1 FLUEDRA provides an informal mechanism for a property owner to challenge a
government action that may infringe on his or her property without having to file a lawsuit.
FLUEDRA does not create a private cause of action or require that a property owner do anything before
exercising his or her right to file a lawsuit.2 Under FLUEDRA, a property owner who believes that a
government notice or order unfairly or unreasonably burdens his or her property may, within 30 days of
receiving the notice or order, file a request for relief with the government that issued the notice or order. 3
The government must forward the request to a special magistrate, who must hold a hearing within 45 days
of receiving the request for relief.4 The special magistrate's primary role is to facilitate a resolution of the
conflict between the property owner and government without involving the courts. 5 In this role, the special
magistrate acts as a "facilitator or mediator."6
If the parties cannot reach an agreement, the special magistrate must determine whether the government
action is unreasonable or unfairly burdens the property owner's real property, based on a list of statutory
guidelines.7 Within 14 days of the hearing's conclusion, the special magistrate must submit a written
recommendation to the parties.8 If the special magistrate's recommendation is that the government action
does not unreasonably or unfairly burden the property, the property owner may still file suit or pursue other
remedies.9 If the recommendation is that the government action unreasonably or unfairly burdens the
property, the special magistrate may, with the property owner’s consent, recommend alternatives that allow
for reduced government restraints on the property, including, but is not limited to:
An adjustment of land development or permit standards or other provisions controlling the
development or use of land;
Increases or modifications in the density, intensity, or use of areas of development;
The transfer of development rights;
Land swaps or exchanges;
Mitigation, including payments in lieu of onsite mitigation;
Location on the least sensitive portion of the property;
Conditioning the amount of development or use permitted;
A requirement that issues be addressed on a more comprehensive basis than a single proposed
use or development;
Issuance of the development order, a variance, special exception, or other extraordinary relief,
including withdrawal of the enforcement action; and
Purchase of the real property, or an interest therein, by an appropriate governmental entity. 10
1
See s. 70.51, F.S.
2 S. 70.51(24), F.S.
3 S. 70.51(3) and (4), F.S.
4 S. 70.51(15)(a), F.S. A “special magistrate” is a person selected by the parties to resolve the case. The special magistrate must be a
Florida resident with experience and expertise in mediation and at leas t one of the following disciplines and a working familiarity with the
others: land use and environmental permitting; land planning; land economics; local and state government organizations and po wers; and
the law governing the same. S. 70.51(2)(c) and (4), F.S.
5 See s. 70.51(17)(a), F.S.
6 Id.
7 S. 70.51(17)(b) and (18), F.S.
8 S. 70.51(19), F.S.
9 S. 70.51(19)(a), F.S.
10 S. 70.51(19)(b), F.S.
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The government entity must respond within 45 days of receiving the special magistrate's recommendation
and indicate whether it accepts, accepts in part, or rejects the recommendation.11 If the government
accepts the recommendation in whole or in part, but the property owner rejects the acceptance or
modification, the government must put into writing within 30 days the specific permissible uses of the
property.12
The special magistrate's recommendation finding that the government acted unreasonably or unfairly may
serve as a basis to demonstrate entitlement to relief in a subsequent lawsuit or in other legal
proceedings.13 The FLUEDRA process may not continue longer than 165 days, unless the parties agree
otherwise.14
Comprehensive Plans
Each county and municipality is required to plan for future development and growth by adopting,
implementing, and amending as necessary a comprehensive plan. 15 Comprehensive plans are
implemented through land development regulations and elements.16 Each comprehensive plan contains
elements that address future land use, housing, transportation, infrastructure, coastal management,
conservation, recreation and open space, intergovernmental coordination, and capital improvements.
At least once every 7 years, each local government must evaluate its comprehensive plan to determine if
plan amendments are necessary to reflect changes in state requirements since the last update of the
comprehensive plan and must notify the state land planning agency as to its determination.17 If the local
government determines amendments to its comprehensive plan are necessary, the local government must
prepare and send to the state land planning agency within one year such plan amendment or amendments
for review.18 Local governments are encouraged to evaluate and update their comprehensive plans to
reflect changes in local conditions.19 If a local government fails to submit an evaluation of its
comprehensive plan at least once in 7 years to the state land planning agency or update its plan as
necessary in order to reflect changes in state requirements, the local government may not amend its
comprehensive plan until such time that an evaluation is submitted. 20
Comprehensive plans must include at least two planning periods, one covering the first 5-year period
occurring after the plan’s adoption and one covering at least a 10-year period.21 Additional planning periods
are permissible and accepted as part of the planning process.
All elements of a plan or plan amendment must be based on relevant, appropriate data22 and an analysis
by the local government.23 The data supporting a plan or amendment must be taken from professionally
accepted sources.24 The plan must be based on permanent and seasonal population estimates and
projections published by the Office of Economic and Demographic Research or generated by the local
government based upon a professionally acceptable methodology. 25 The analysis by the local government
may include, but is not limited to, surveys, studies, community goals and vision, and other data available at
the time of adoption of the comprehensive plan or plan amendment. 26
11
S. 70.51(21), F.S.
12 S. 70.51(22), F.S.
13 S. 70.51(25), F.S.
14 S. 70.51(23), F.S.
15 Ss. 163.3167(2), 163.3177(2), F.S.
16
S. 163.3167(1)(c), F.S.
17 S. 163.3191(1), F.S. The state land planning agency is the Department of Economic Opportunity. S. 163.3164(44), F.S.
18 S. 163.3191(2), F.S. The review process is pursuant to s. 163.3184(4), F.S., the state coordinated review process for comprehensive
plans and plan amendments.
19 S. 163.3191(3), F.S.
20 S. 163.3191(4), F.S.
21 S. 163.3177(5)(a), F.S.
22 “To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available o n that
particular subject at the time of adoption of the plan or plan amendment at issue.” S. 163.3177(1)(f), F.S.
23 S. 163.3177(1)(f), F.S.
24S. 163.3177(1)(f)2., F.S.
25 S. 163.3177(1)(f)3., F.S.
26 S. 163.3177(1)(f), F.S.
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Land Development Regulations
Comprehensive plans are implemented via land development regulations. Each county and municipality
must adopt and enforce land development regulations, such as zoning or other housing-related
ordinances, that are consistent with and implement their adopted comprehensive plan. 27 Local
governments are encouraged to use innovative land development regulations 28 and may adopt measures
for the purpose of increasing affordable housing using land-use mechanisms.29
All local government land development regulations must be consistent with the local comprehensive plan. 30
Additionally, all public and private development, including special district projects, must be consistent with
the local comprehensive plan.31 However, plans cannot require any special district to undertake a public
facility project that would impair the district’s bond covenants or agreements. 32
Local governments are generally prohibited from adopting land development regulations relating to building
design elements for single-family or two-family dwellings.33 This prohibition does not apply to:
Dwellings listed in, or located in a historic district listed in, the National Register of Historic Places;
Dwellings listed as a historic property or located in a historic district as determined by a local
preservation ordinance;
Regulations adopted in order to implement the National Flood Insurance Program;
Regulations adopted in accordance and compliance with procedures established for the adoption of
local amendments to the Florida Building Code;
Dwellings located in a community redevelopment area;
Regulations that are required to ensure protection of coastal wildlife in compliance with the Dennis
L. Jones Beach and Shore Preservation Act or the Florida Water Resources Act of 1972;
Dwellings located in a planned unit development or a master planned community created by a local
governing body; or
Dwellings located within the jurisdiction of a local government that has a design review board or
architectural review board.34
Capital Improvements Element
Comprehensive plans must contain a capital improvement element (CIE) designed to consider the need for
and the location of public facilities in order to encourage the efficient use of such facilities. The CIE must
set forth: 35
A component that outlines principles for construction, extension, or increase in capacity of public
facilities, as well as a component that outlines principles for correcting existing public facility
deficiencies, which are necessary to implement the comprehensive plan. These components must
cover at least a 5-year period.
Estimated public facility costs, including a delineation of when facilities will be needed, the general
location of facilities, and projected revenue sources to fund the facilities.
Standards to ensure the availability of public facilities and the adequacy of those facilities to meet
established acceptable levels of service.
A schedule of capital improvements which includes any publicly funded projects of federal, state, or
local government, and which may include privately funded projects for which the local government
has no fiscal responsibility. Projects necessary to ensure that any adopted level-of-service
27
S. 163.3202, F.S.
28 S. 163.3202(3), F.S.
29 Ss. 125.01055 and 166.04151, F.S.
30 S. 163.3194(1)(b), F.S.
31 See ss. 163.3161(6) and 163.3194(1)(a), F.S.
32 S. 189.081(1), F.S.
33 S. 163.3202(5)(a), F.S. Building design elements include external building color; the type or style of exterior cladding mate rial; the style or
material of roof structures or porches; the exterior nonstructural architectural ornamentation; the location or architectural styling of windows
or doors; the location or orientation of the garage; the number and type of rooms; and the interior layout of rooms, but does include the
height, bulk, orientation, location of a dwelling on a zoning lot, or the use of buffering or screening to minimize potential adverse physical or
visual impacts or to protect the privacy of neighbors. S. 163.3202(5)(b)1., F.S.
34 S. 163.3202(5)(a)1.-7., F.S.
35 S. 163.3177(3)(a), F.S.
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standards are achieved and maintained for the 5-year period must be identified as either funded or
unfunded and given a level of priority for funding.
The schedule must include transportation improvements included in the applicable metropolitan
planning organization’s transportation improvement program adopted pursuant to s. 339.175(8),
F.S., to the extent that such improvements are relied upon to ensure concurrency and financial
feasibility. The schedule must be coordinated with the applicable metropolitan planning
organization’s long-range transportation plan adopted pursuant to s. 339.175(7).
Future Land Use Element
Comprehensive plans must contain an element regarding future land use that designates proposed future
general distribution, location, and extent of the uses of land for a number of uses and categories of public
and private uses of land.36 Each future land use category must be defined in terms of uses included, and
must include standards to be followed in the control and distribution of population densities and building
and structure intensities.37 The proposed distribution, location, and extent of the various categories of land
use must be shown on a land use map or map series. Future land use plans and plan amendments are
based on surveys, studies, and data regarding the area38 and the future land use element must include a
future land use map or map series.39
The future land use element of a comprehensive plan or any amendment to the future land use element
must discourage the proliferation of urban sprawl.40 Current law provides a list of
primary indicators to determine whether a plan or plan amendment encourages the proliferation of urban
sprawl and states that a future land use element or plan amendment will be determined to discourage the
proliferation of urban sprawl if it incorporates a development pattern or urban form that achieves four or
more statutory factors.41
Effect of Proposed Changes
The bill revises the FLUEDRA process to allow a negotiated settlement between the private property owner
and the governmental entity to include the types of relief a special magistrate may recommend make when
the special magistrate determines that the government action unreasonably or unfairly burdens the
property. The bill revises the circumstances a special magistrate may consider when determining whether
a development order or enforcement action unreasonably or unfairly burdens a use of property to include
the public interest served by the local comprehensive plan provisions that are inconsistent with the
proposed relief granted by the special magistrate’s recommendation.
The bill provides that in circumstances in which the relief granted by the special magistrate’s
recommendation or a negotiated settlement contravenes the local comprehensive plan in effect or is
inconsistent with the local government’s comprehensive plan, the special magistrate or the local governing
board may deem the recommendation or approved negotiated settlement consistent with the
comprehensive plan if the local government finds that the negotiated settlement and approved
development protect the public interest served by the comprehensive plan.
Related to comprehensive planning, the bill:
revises the definition of urban service area to include both areas that receive (or could receive, with
investment by the local government or the private sector) certain public facilities and services , and
any land contained in a county or municipality that has been designated as a dense urban land
area by the Department of Economic Opportunity.
36 S. 163.3177(6)(a), F.S. Applicable uses and categories of public and private uses of land include, but are not limited to, residential,
commercial, industrial, agricultural, recreational, conservation, educational, and public facilities. S. 163.3177(6)(a)10., F .S.
37 S. 163.3177(6)(a)1., F.S.
38 S. 163.3177(6)(a)2., F.S.
39 S. 163.3177(6)(a)10., F.S.
40 S. 163.3177(6)(a)9., F.S. “Urban sprawl” is defined as “a development pattern characterized by low density, automobile-dependent
development with either a single use or multiple uses that are not functionally related, requiring the extension of public facilities and services
in an inefficient manner, and failing to provide a clear separation between urban and rural uses” S. 163.3164(52), F.S.
41 S. 163.3177(6)(a)9.-10., F.S.
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requires comprehensive plan elements and amendments to be based on relevant data and
removes the consideration of community goals and vision as a separate component of a local
government’s analysis.
removes a provision that allows a local government to collect and use original data in their analysis.
directs comprehensive plans to be based on the greater of the estimates and projections published
by the Office of Economic and Demographic Research and the local government.
prohibits optional elements of a comprehensive plan from restricting the density or intensity
established in the future land use element portion of a comprehensive plan. The bill also amends
the definitions of density and intensity to clarify their use.
revises the two required planning periods that must be included in a comprehensive plan to a 10-
year period and a 20-year period. Local governments may still adopt additional planning periods for
specific components, elements, land use amendments, and projects.
removes a list of primary indicators used to determine if a plan or plan amendment encourages or
discourages the proliferation of urban sprawl, instead requiring local governments to discourage
urban sprawl by planning for future growth.
requires the chair of the governing body of the county or mayor of the municipality to sign an
affidavit attesting that all elements of the comprehensive plan complies with statutory requirements.
provides that if a local government fails to submit such evaluation and affidavit to the state land
planning agency as statutorily required, the local government may not initiate or adopt any publicly
initiated plan amendment to its comprehensive plan until the local government complies with the
submission requirements. This prohibition does not apply to privately initiated plan amendments.
provides that if a local government fails to update its comprehensive plan, the state land planning
agency shall provide population projections that must be utilized in updating the plan.
provides that a local government may provide alternative population projections based on
professionally accepted methodologies, but only if those projections exceed the population
projections provided by the state land planning agency.
requires local governments to evaluate and update their comprehensive plans to reflect changes in
local conditions, with updates to required elements processed in the same plan amendment cycle.
Optional elements of the comprehensive plan may not be updated until required elements have
been updated, unless those updates are required by law.
requires that local land development regulations must contain minimum lot sizes within single-
family, two-family and fee-simple, single-family townhome zoning districts to accommodate the
maximum density authorized in the comprehensive plan, net of the area required for other
mandatory items, and infill development standards for single-family homes, two-family homes and
fee-simple townhome dwelling units.
provides that levels of service established in a comprehensive plan solely for planning purposes
may not be a basis for the denial of a development order or permit.
removes the ability of local governments to require certain building design elements to single-family
or two-family dwellings located in a planned unit development or master planned community and
limits the application of those elements in communities with a design review board or architectural
review board to those who had such a board before January 1, 2020.
B. SECTION DIRECTORY:
Section 1: Amends s. 70.51, F.S, relating to land use and environmental dispute resolution.
Section 2: Amends s. 163.3164, F.S., relating to Community Planning Act definitions.
Section 3: Amends s. 163.3177, F.S., relating to required and optional elements of comprehensive
plans.
Section 4: Amends s. 163.3191, F.S., relating to evaluation and appraisal of the comprehensive plan.
Section 5: Amends s. 163.3202, F.S., relating to land development regulations.
Section 6: Amends s. 163.3246, F.S., conforming terminology.
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Section 7: Amends s. 189.08, F.S., conforming cross-references.
Section 8: Amends s. 479.01, F.S., conforming cross-references.
Section 9: Provides an effective date of July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The establishment of minimum lot sizes within single-family, two-family and fee-simple, single-family
townhome zoning districts to accommodate the maximum density authorized in the comprehensive plan
and the establishment of infill development standards may increase the amount of residential development.
The prohibition on the application of building design standards to certain types of residential development
may decrease the cost of constructing those developments.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have to
raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill neither provides authority for nor requires rulemaking by executive branch agencies.
C. DRAFTING ISSUES OR OTHER COMMENTS:
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None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 10, 2023, the Local Administration, Federal Affairs & Special Districts Subcommittee adopted a
proposed committee substitute (PCS) and reported the bill favorably as a committee substitute. The PCS differed
from the bill in a number of ways:
Removes a provision that would have made the decision of a special magistrate binding;
Allows for negotiated settlements under FLUEDRA to include the types of relief a special magistrate may
recommend;
Provides that the special magistrate’s recommendations or negotiated settlements inconsistent with the
local comprehensive plan to be deemed consistent if the recommendations or settlements are found to
protect the public interest served by the comprehensive plan;
Removes a provision that would have required local governments to include affidavits related to their
comprehensive plan as part of the annual financial auditing process;
Revises the relationship between required and optional elements of the comprehensive plan;
Entails that required elements of the comprehensive plan must processed in the same plan cycle and
prohibits updates to optional elements until required elements are updated;
Requires that the comprehensive plan must be updated in a timely manner before publicly-initiated
amendments are approved;
Requires comprehensive plans to establish minimum lot sizes for certain residential zoning districts and to
establish infill development standards; and
Removes a provision related to withholding county transportation funds.
The analysis is drafted to the committee substitute adopted by the Local Administration, Federal Affairs & Special
Districts Subcommittee.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 439 2023
1 A bill to be entitled
2 An act relating to land use and development
3 regulations; amending s. 70.51, F.S.; providing the
4 types of relief that may be included in a negotiated
5 settlement; requiring a special magistrate to consider
6 the public interest served by comprehensive plan
7 provisions that are inconsistent with proposed relief;
8 revising the requirements of a governmental entity
9 after the receipt of a special magistrate's
10 recommendation; revising the effect of a special
11 magistrate's recommendation; providing procedures for
12 deeming relief granted by a special magistrate's
13 recommendation or a negotiated settlement consistent
14 with comprehensive plan; amending s. 163.3164, F.S.;
15 revising definitions; amending s. 163.3177, F.S.;
16 revising the types of data that comprehensive plans
17 and plan amendments must be based on; revising means
18 by which an application of a methodology used in data
19 collection or whether a particular methodology is
20 professionally accepted may be evaluated; revising the
21 elements that must be included in a comprehensive
22 plan; revising the planning periods that must be
23 included in a comprehensive plan; amending s.
24 163.3191, F.S.; revising the frequency at which a
25 local government must evaluate its comprehensive plan
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26 for specified purposes; requiring, rather than
27 authorizing, a local government to comprehensively
28 evaluate and update its comprehensive plans to reflect
29 changes in local conditions; requiring a local
30 government to submit an affidavit for specified
31 purposes; prohibiting a local government from publicly
32 initiating or adopting plan amendments to its
33 comprehensive plan when it fails to meet certain
34 requirements; requiring the state land planning agency
35 to provide certain information when a local government
36 fails to update its comprehensive plan; amending s.
37 163.3202, F.S.; revising content requirements for
38 local land development regulations; revising
39 exceptions to applicability of land development
40 regulations relating to single-family or two-family
41 dwelling building design elements; deleting a
42 definition; amending s. 163.3246, F.S.; revising
43 terminology; amending ss. 189.08 and 479.01, F.S.;
44 conforming cross-references; providing an effective
45 date.
46
47 Be It Enacted by the Legislature of the State of Florida:
48
49 Section 1. Paragraph (h) of subsection (18) of section
50 70.51, Florida Statutes, is redesignated as paragraph (i),
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51 paragraph (a) of subsection (17), paragraph (a) of subsection
52 (21), and subsection (25) are amended, and a new paragraph (h)
53 is added to subsection (18) of that section, to read:
54 70.51 Land use and environmental dispute resolution.—
55 (17) In all respects, the hearing must be informal and
56 open to the public and does not require the use of an attorney.
57 The hearing must operate at the direction and under the
58 supervision of the special magistrate. The object of the hearing
59 is to focus attention on the impact of the governmental action
60 giving rise to the request for relief and to explore
61 alternatives to the development order or enforcement action and
62 other regulatory efforts by the governmental entities in order
63 to recommend relief, when appropriate, to the owner.
64 (a) The first responsibility of the special magistrate is
65 to facilitate a resolution of the conflict between the owner and
66 governmental entities to the end that some modification of the
67 owner's proposed use of the property or adjustment in the
68 development order or enforcement action or regulatory efforts by
69 one or more of the governmental parties may be reached.
70 Accordingly, the special magistrate shall act as a facilitator
71 or mediator between the parties in an effort to effect a
72 mutually acceptable solution. The parties shall be represented
73 at the mediation by persons with authority to bind their
74 respective parties to a solution, or by persons with authority
75 to recommend a solution directly to the persons with authority
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76 to bind their respective parties to a solution. A negotiated
77 settlement may include, but is not limited to, one or more of
78 the following types of relief or other extraordinary relief
79 deemed appropriate by the parties:
80 1. An adjustment of land development or permit standards
81 or other provisions controlling the development or use of land
82 for the property subject to the dispute or other property owned
83 or controlled by the parties to the settlement.
84 2. Increases or modifications in the density, intensity,
85 or use of areas of development.
86 3. The transfer of development rights.
87 4. Land swaps or exchanges.
88 5. Mitigation relief, including payments in lieu of onsite
89 mitigation.
90 6. Location on the least sensitive portion of the
91 property.
92 7. Conditioning the amount of development or use
93 permitted.
94 8. A requirement that issues be addressed on a more
95 comprehensive basis than a single proposed use or development.
96 9. Issuance of the development order, a variance, a
97 special exception, or other extraordinary relief, including
98 withdrawal of the enforcement action.
99 10. Purchase of the real property, or an interest therein,
100 by an appropriate governmental entity or payment of
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101 compensation.
102 (18) The circumstances to be examined in determining
103 whether the development order or enforcement action, or the
104 development order or enforcement action in conjunction with
105 regulatory efforts of other governmental parties, is
106 unreasonable or unfairly burdens use of the property may
107 include, but are not limited to:
108 (h) The public interest served by the local comprehensive
109 plan provisions that are inconsistent with the proposed relief
110 granted by the special magistrate's recommendation.
111 (21) Within 45 days after receipt of the special
112 magistrate's recommendation, the governmental entity responsible
113 for the development order or enforcement action and other
114 governmental entities participating in the proceeding must
115 consult among themselves and each governmental entity must:
116 (a) Accept the recommendation of the special magistrate as
117 submitted and proceed to implement it by development agreement,
118 when appropriate, or by other method, in the ordinary course and
119 consistent with the rules and procedures of that governmental
120 entity. However, the decision of the governmental entity to
121 accept the recommendation of the special magistrate with respect
122 to granting a rezoning, modification, variance, or special
123 exception to the application of statutes, rules, regulations,
124 comprehensive plans, or ordinances as they would otherwise apply
125 to the subject property does not require an owner to duplicate
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126 previous processes in which the owner has participated in order
127 to effectuate the granting of the modification, variance, or
128 special exception. Any recommendation of the special magistrate
129 with respect to granting a rezoning of property is not
130 considered contract zoning;
131 (25) Regardless of the action the governmental entity
132 takes on the special magistrate's recommendation, a
133 recommendation that the development order or enforcement action,
134 or the development order or enforcement action in combination
135 with other governmental regulatory actions, is unreasonable or
136 unfairly burdens use of the owner's real property may serve as
137 an indication of sufficient hardship to support a rezoning,
138 modification, variance variances, or special exception
139 exceptions to the application of statutes, rules, regulations,
140 or ordinances to the subject property. If the relief granted
141 within the special magistrate's recommendation or a negotiated
142 settlement entered into under this section has the effect of
143 contravening local comprehensive plans or is inconsistent with
144 the local government's adopted comprehensive plan, the
145 recommendation or approved negotiated settlement shall be deemed
146 consistent with the comprehensive plan under s. 163.3194 if the
147 special magistrate or the governing body of the local government
148 finds that the settlement agreement and approved development
149 protects the public interest served by the comprehensive plan
150 provisions with which it is inconsistent.
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151 Section 2. Subsections (12), (22), (51), and (52) of
152 section 163.3164, Florida Statutes, are amended to read:
153 163.3164 Community Planning Act; definitions.—As used in
154 this act:
155 (12) "Density" means an objective measurement of the
156 number of people or residential units allowed per unit of land,
157 such as dwelling units residents or employees per acre.
158 (22) "Intensity" means an objective measurement of the
159 extent to which land may be developed or used expressed in
160 square feet per unit of land, such as a maximum floor ratio per
161 acre, including the consumption or use of the space above, on,
162 or below ground; the measurement of the use of or demand on
163 natural resources; and the measurement of the use of or demand
164 on facilities and services.
165 (51) "Urban service area" means:
166 (a) Areas identified in the comprehensive plan where
167 public facilities and services, including, but not limited to,
168 central water and sewer capacity and roads, are already in place
169 or may be expanded through investment by the are identified in
170 the capital improvements element. The term includes any areas
171 identified in the comprehensive plan as urban service areas,
172 regardless of local government or the private sector limitation.
173 (b) All lands located in a county or municipality that
174 have been designated as a dense urban land area under s.
175 380.0651(3)(a).
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176 (52) "Urban sprawl" means an unplanned and uncontrolled a
177 development pattern characterized by low density, automobile-
178 dependent development with either a single use or multiple uses
179 that are not functionally related, requiring the extension of
180 public facilities and services in an inefficient manner, and
181 failing to provide a clear separation between urban and rural
182 uses.
183 Section 3. Paragraph (f) of subsection (1), subsection
184 (2), paragraph (a) of subsection (5), and paragraph (a) of
185 subsection (6) of section 163.3177, Florida Statutes, are
186 amended to read:
187 163.3177 Required and optional elements of comprehensive
188 plan; studies and surveys.—
189 (1) The comprehensive plan shall provide the principles,
190 guidelines, standards, and strategies for the orderly and
191 balanced future economic, social, physical, environmental, and
192 fiscal development of the area that reflects community
193 commitments to implement the plan and its elements. These
194 principles and strategies shall guide future decisions in a
195 consistent manner and shall contain programs and activities to
196 ensure comprehensive plans are implemented. The sections of the
197 comprehensive plan containing the principles and strategies,
198 generally provided as goals, objectives, and policies, shall
199 describe how the local government's programs, activities, and
200 land development regulations will be initiated, modified, or
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201 continued to implement the comprehensive plan in a consistent
202 manner. It is not the intent of this part to require the
203 inclusion of implementing regulations in the comprehensive plan
204 but rather to require identification of those programs,
205 activities, and land development regulations that will be part
206 of the strategy for implementing the comprehensive plan and the
207 principles that describe how the programs, activities, and land
208 development regulations will be carried out. The plan shall
209 establish meaningful and predictable standards for the use and
210 development of land and provide meaningful guidelines for the
211 content of more detailed land development and use regulations.
212 (f) All required mandatory and optional elements of the
213 comprehensive plan and plan amendments shall be based upon
214 relevant and appropriate data and an analysis by the local
215 government that may include, but not be limited to, surveys,
216 studies, community goals and vision, and other data available at
217 the time of adoption of the comprehensive plan or plan
218 amendment. To be based on data means to react to it in an
219 appropriate way and to the extent necessary indicated by the
220 data available on that particular subject at the time of
221 adoption of the plan or plan amendment at issue.
222 1. Surveys, studies, and data utilized in the preparation
223 of the comprehensive plan may not be deemed a part of the
224 comprehensive plan unless adopted as a part of it. Copies of
225 such studies, surveys, data, and supporting documents for
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226 proposed plans and plan amendments shall be made available for
227 public inspection, and copies of such plans shall be made
228 available to the public upon payment of reasonable charges for
229 reproduction. Support data or summaries shall be are not subject
230 to the compliance review process, but the comprehensive plan
231 must be clearly based on appropriate data. Support data or
232 summaries may be used to aid in the determination of compliance
233 and consistency.
234 2. Data must be taken from professionally accepted
235 sources. The application of a methodology utilized in data
236 collection or whether a particular methodology is professionally
237 accepted may be evaluated. However, the evaluation may not
238 include whether one accepted methodology is better than another.
239 Original data collection by local governments is not required.
240 However, local governments may use original data so long as
241 methodologies are professionally accepted.
242 3. The comprehensive plan shall be based upon permanent
243 and seasonal population estimates and projections, which shall
244 either be those published by the Office of Economic and
245 Demographic Research or generated by the local government based
246 upon a professionally acceptable methodology, whichever is
247 greater. The plan must be based on at least the minimum amount
248 of land required to accommodate the medium projections as
249 published by the Office of Economic and Demographic Research for
250 at least a 10-year planning period unless otherwise limited
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251 under s. 380.05, including related rules of the Administration
252 Commission. Absent physical limitations on population growth,
253 population projections for each municipality, and the
254 unincorporated area within a county must, at a minimum, be
255 reflective of each area's proportional share of the total county
256 population and the total county population growth.
257 (2) Coordination of the required and optional several
258 elements of the local comprehensive plan shall be a major
259 objective of the planning process. The required and optional
260 several elements of the comprehensive plan shall be consistent.
261 Optional elements of the comprehensive plan may not contain
262 policies that restrict the density or intensity established in
263 the future land use element. Where data is relevant to required
264 and optional several elements, consistent data shall be used,
265 including population estimates and projections unless
266 alternative data can be justified for a plan amendment through
267 new supporting data and analysis. Each map depicting future
268 conditions must reflect the principles, guidelines, and
269 standards within all elements, and each such map must be
270 contained within the comprehensive plan.
271 (5)(a) Each local government comprehensive plan must
272 include at least two planning periods, one covering at least the
273 first 10-year 5-year period occurring after the plan's adoption
274 and one covering at least a 20-year 10-year period. Additional
275 planning periods for specific components, elements, land use
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276 amendments, or projects shall be permissible and accepted as
277 part of the planning process.
278 (6) In addition to the requirements of subsections (1) -
279 (5), the comprehensive plan shall include the following
280 elements:
281 (a) A future land use plan element designating proposed
282 future general distribution, location, and extent of the uses of
283 land for residential uses, commercial uses, industry,
284 agriculture, recreation, conservation, education, public
285 facilities, and other categories of the public and private uses
286 of land. The approximate acreage and the general range of
287 density or intensity of use shall be provided for the gross land
288 area included in each existing land use category. The element
289 shall establish the long-term end toward which land use programs
290 and activities are ultimately directed.
291 1. Each future land use category must be defined in terms
292 of uses included, and must include standards to be followed in
293 the control and distribution of population densities and
294 building and structure intensities. The proposed distribution,
295 location, and extent of the various categories of land use shall
296 be shown on a land use map or map series which shall be
297 supplemented by goals, policies, and measurable objectives.
298 2. The future land use plan and plan amendments shall be
299 based upon surveys, studies, and data regarding the area, as
300 applicable, including:
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301 a. The amount of land required to accommodate anticipated
302 growth.
303 b. The projected permanent and seasonal population of the
304 area.
305 c. The character of undeveloped land.
306 d. The availability of water supplies, public facilities,
307 and services.
308 e. The need for redevelopment, including the renewal of
309 blighted areas and the elimination of nonconforming uses which
310 are inconsistent with the character of the community.
311 f. The compatibility of uses on lands adjacent to or
312 closely proximate to military installations.
313 g. The compatibility of uses on lands adjacent to an
314 airport as defined in s. 330.35 and consistent with s. 333.02.
315 h. The discouragement of urban sprawl.
316 i. The need for job creation, capital investment, and
317 economic development that will strengthen and diversify the
318 community's economy.
319 j. The need to modify land uses and development patterns
320 within antiquated subdivisions.
321 3. The future land use plan element shall include criteria
322 to be used to:
323 a. Achieve the compatibility of lands adjacent or closely
324 proximate to military installations, considering factors
325 identified in s. 163.3175(5).
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326 b. Achieve the compatibility of lands adjacent to an
327 airport as defined in s. 330.35 and consistent with s. 333.02.
328 c. Encourage preservation of recreational and commercial
329 working waterfronts for water-dependent uses in coastal
330 communities.
331 d. Encourage the location of schools proximate to urban
332 service residential areas to the extent possible and encourage
333 the location of schools in all areas if necessary to provide
334 adequate school capacity to serve residential development.
335 e. Coordinate future land uses with the topography and
336 soil conditions, and the availability of facilities and
337 services.
338 f. Ensure the protection of natural and historic
339 resources.
340 g. Provide for the compatibility of adjacent land uses.
341 h. Provide guidelines for the implementation of mixed-use
342 development including the types of uses allowed, the percentage
343 distribution among the mix of uses, or other standards, and the
344 density and intensity of each use.
345 4. The amount of land designated for future planned uses
346 shall provide a balance of uses that foster vibrant, viable
347 communities and economic development opportunities and address
348 outdated development patterns, such as antiquated subdivisions.
349 The amount of land designated for future land uses should allow
350 the operation of real estate markets to provide adequate choices
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351 for permanent and seasonal residents and business and may not be
352 limited solely by the projected population. The element shall
353 accommodate at least the minimum amount of land required to
354 accommodate the medium projections as published by the Office of
355 Economic and Demographic Research for at least a 10 -year
356 planning period unless otherwise limited under s. 380.05,
357 including related rules of the Administration Commission.
358 5. The future land use plan of a county may designate
359 areas for possible future municipal incorporation.
360 6. The land use maps or map series shall generally
361 identify and depict historic district boundaries and shall
362 designate historically significant properties meriting
363 protection.
364 7. The future land use element must clearly identify the
365 land use categories in which public schools are an allowable
366 use. When delineating the land use categories in which public
367 schools are an allowable use, a local government shall include
368 in the categories sufficient land proximate to residential
369 development to meet the projected needs for schools in
370 coordination with public school boards and may establish
371 differing criteria for schools of different type or size. Each
372 local government shall include lands contiguous to existing
373 school sites, to the maximum extent possible, within the land
374 use categories in which public schools are an allowable use.
375 8. Future land use map amendments shall be based upon the
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376 following analyses:
377 a. An analysis of the availability of facilities and
378 services.
379 b. An analysis of the suitability of the plan amendment
380 for its proposed use considering the character of the
381 undeveloped land, soils, topography, natural resources, and
382 historic resources on site.
383 c. An analysis of the minimum amount of land needed to
384 achieve the goals and requirements of this section.
385 9. The future land use element and any amendment to the
386 future land use element shall discourage the proliferation of
387 urban sprawl by planning for future development as provided in
388 this section.
389 a. The primary indicators that a plan or plan amendment
390 does not discourage the proliferation of urban sprawl are listed
391 below. The evaluation of the presence of these indicators shall
392 consist of an analysis of the plan or plan amendment within the
393 context of features and characteristics unique to each locality
394 in order to determine whether the plan or plan amendment:
395 (I) Promotes, allows, or designates for development
396 substantial areas of the jurisdiction to develop as low -
397 intensity, low-density, or single-use development or uses.
398 (II) Promotes, allows, or designates significant amounts
399 of urban development to occur in rural areas at substantial
400 distances from existing urban areas while not using undeveloped
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401 lands that are available and suitable for development.
402 (III) Promotes, allows, or designates urban development in
403 radial, strip, isolated, or ribbon patterns generally emanating
404 from existing urban developments.
405 (IV) Fails to adequately protect and conserve natural
406 resources, such as wetlands, floodplains, native vegetation,
407 environmentally sensitive areas, natural groundwater aquifer
408 recharge areas, lakes, rivers, shorelines, beaches, bays,
409 estuarine systems, and other significant natural systems.
410 (V) Fails to adequately protect adjacent agricultural
411 areas and activities, including silviculture, active
412 agricultural and silvicultural activities, passive agricultural
413 activities, and dormant, unique, and prime farmlands and soils.
414 (VI) Fails to maximize use of existing public facilities
415 and services.
416 (VII) Fails to maximize use of future public facilities
417 and services.
418 (VIII) Allows for land use patterns or timing which
419 disproportionately increase the cost in time, money, and energy
420 of providing and maintaining facilities and services, including
421 roads, potable water, sanitary sewer, stormwater management, law
422 enforcement, education, health care, fire and emergency
423 response, and general government.
424 (IX) Fails to provide a clear separation between rural and
425 urban uses.
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426 (X) Discourages or inhibits infill development or the
427 redevelopment of existing neighborhoods and communities.
428 (XI) Fails to encourage a functional mix of uses.
429 (XII) Results in poor accessibility among linked or
430 related land uses.
431 (XIII) Results in the loss of significant amounts of
432 functional open space.
433 b. The future land use element or plan amendment shall be
434 determined to discourage the proliferation of urban sprawl if it
435 incorporates a development pattern or urban form that achieves
436 four or more of the following:
437 (I) Directs or locates economic growth and associated land
438 development to geographic areas of the community in a manner
439 that does not have an adverse impact on and protects natural
440 resources and ecosystems.
441 (II) Promotes the efficient and cost-effective provision
442 or extension of public infrastructure and services.
443 (III) Promotes walkable and connected communities and
444 provides for compact development and a mix of uses at densities
445 and intensities that will support a range of housing choices and
446 a multimodal transportation system, including pedestrian,
447 bicycle, and transit, if available.
448 (IV) Promotes conservation of water and energy.
449 (V) Preserves agricultural areas and activities, including
450 silviculture, and dormant, unique, and prime farmlands and
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451 soils.
452 (VI) Preserves open space and natural lands and provides
453 for public open space and recreation needs.
454 (VII) Creates a balance of land uses based upon demands of
455 the residential population for the nonresidential needs of an
456 area.
457 (VIII) Provides uses, densities, and intensities of use
458 and urban form that would remediate an existing or planned
459 development pattern in the vicinity that constitutes sprawl or
460 if it provides for an innovative development pattern such as
461 transit-oriented developments or new towns as defined in s.
462 163.3164.
463 10. The future land use element shall include a future
464 land use map or map series.
465 a. The proposed distribution, extent, and location of the
466 following uses shall be shown on the future land use map or map
467 series:
468 (I) Residential.
469 (II) Commercial.
470 (III) Industrial.
471 (IV) Agricultural.
472 (V) Recreational.
473 (VI) Conservation.
474 (VII) Educational.
475 (VIII) Public.
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476 b. The following areas shall also be shown on the future
477 land use map or map series, if applicable:
478 (I) Historic district boundaries and designated
479 historically significant properties.
480 (II) Transportation concurrency management area boundaries
481 or transportation concurrency exception area boundaries.
482 (III) Multimodal transportation district boundaries.
483 (IV) Mixed-use categories.
484 c. The following natural resources or conditions shall be
485 shown on the future land use map or map series, if applicable:
486 (I) Existing and planned public potable waterwells, cones
487 of influence, and wellhead protection areas.
488 (II) Beaches and shores, including estuarine systems.
489 (III) Rivers, bays, lakes, floodplains, and harbors.
490 (IV) Wetlands.
491 (V) Minerals and soils.
492 (VI) Coastal high hazard areas.
493 Section 4. Section 163.3191, Florida Statutes, is amended
494 to read:
495 163.3191 Evaluation and appraisal of comprehensive plan.—
496 (1) At least once every 7 years, each local government
497 must shall evaluate its comprehensive plan to determine if plan
498 amendments are necessary to reflect a minimum planning period of
499 at least 10 years as provided in s. 163.3177(5), or to reflect
500 changes in state requirements in this part since the last update
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501 of the comprehensive plan, and notify the state land planning
502 agency as to its determination. The notification shall include a
503 separate affidavit, signed by the chair of the governing body of
504 the county and the mayor of the municipality, attesting that all
505 elements of its comprehensive plan comply with this subsection.
506 The affidavit must also include a certification that the adopted
507 comprehensive plan contains the minimum planning period of 10
508 years, as provided in s. 163.3177(5), and must cite the source
509 and date of the population projections used in establishing the
510 10-year planning period.
511 (2) If the local government determines amendments to its
512 comprehensive plan are necessary to reflect changes in state
513 requirements, the local government shall prepare and transmit
514 within 1 year such plan amendment or amendments for review
515 pursuant to s. 163.3184.
516 (3) Local governments must are encouraged to
517 comprehensively evaluate and, as necessary, update comprehensive
518 plans to reflect changes in local conditions. Plan amendments
519 transmitted pursuant to this section shall be reviewed pursuant
520 to s. 163.3184(4). Updates to the required elements of the
521 comprehensive plan must be processed in the same plan amendment
522 cycle. Optional elements of the comprehensive plan may not be
523 updated until the required elements have been updated, unless
524 otherwise required by general law.
525 (4) If a local government fails to submit the its letter
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526 and affidavit prescribed by subsection (1) or update its plan
527 pursuant to subsection (3) within 1 year from the date the
528 letter was transmitted to the state land planning agency (2), it
529 may not initiate or adopt any publicly initiated plan amendments
530 to amend its comprehensive plan until such time as it complies
531 with this section, unless otherwise required by general law.
532 This prohibition on plan amendments does not apply to privately
533 initiated plan amendments. The failure of the local government
534 to update its plan in a timely manner may not be the basis for
535 the denial of a privately initiated comprehensive plan
536 amendment.
537 (5) If it is determined that a local government has failed
538 to update its comprehensive plan pursuant to this section, the
539 state land planning agency shall provide the required population
540 projections that must be used by the local government to update
541 the comprehensive plan. The local government shall initiate an
542 update to its comprehensive plan within 3 months following the
543 receipt of the population projections and must complete the
544 update within 12 months. During the update process, the local
545 government may provide alternative population projections based
546 on professionally accepted methodologies, but only if those
547 population projections exceed the population projections
548 provided by the state land planning agency and only if the
549 update is completed within the time period provided in this
550 subsection.
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551 (6)(5) The state land planning agency may not adopt rules
552 to implement this section, other than procedural rules or a
553 schedule indicating when local governments must comply with the
554 requirements of this section.
555 Section 5. Subsections (2) and (5) of section 163.3202,
556 Florida Statutes, are amended to read:
557 163.3202 Land development regulations.—
558 (2) Local land development regulations must shall contain
559 specific and detailed provisions necessary or desirable to
560 implement the adopted comprehensive plan and shall at a minimum:
561 (a) Regulate the subdivision of land.
562 (b) Establish minimum lot sizes within single-family, two-
563 family, and fee-simple, single-family townhome zoning districts
564 to accommodate the maximum density authorized in the
565 comprehensive plan, net of the land area required to be set
566 aside for subdivision roads, sidewalks, stormwater ponds, open
567 space, landscape buffers, and any other mandatory land
568 development regulations that require land to be set aside that
569 could otherwise be used for the development of single -family
570 homes, two-family homes, and fee-simple, single-family
571 townhomes.
572 (c) Establish infill development standards for single-
573 family homes, two-family homes, and fee-simple townhome dwelling
574 units to allow for the administrative approval of development of
575 infill single-family homes, two-family homes, and fee-simple,
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576 single-family townhomes.
577 (d)(b) Regulate the use of land and water for those land
578 use categories included in the land use element and ensure the
579 compatibility of adjacent uses and provide for open space.
580 (e)(c) Provide for protection of potable water wellfields.
581 (f)(d) Regulate areas subject to seasonal and periodic
582 flooding and provide for drainage and stormwater management.
583 (g)(e) Ensure the protection of environmentally sensitive
584 lands designated in the comprehensive plan.
585 (h)(f) Regulate signage.
586 (i)(g) Provide that public facilities and services meet or
587 exceed the standards established in the capital improvements
588 element required by s. 163.3177 and are available when needed
589 for the development, or that development orders and permits are
590 conditioned on the availability of these public facilities and
591 services necessary to serve the proposed development. A local
592 government may not issue a development order or permit that
593 results in a reduction in the level of services for the affected
594 public facilities below the adopted level of services provided
595 in the local government's comprehensive plan. Levels of service
596 established in a comprehensive plan solely for planning purposes
597 may not be used as a basis for the denial of a development order
598 or permit.
599 (j)(h) Ensure safe and convenient onsite traffic flow,
600 considering needed vehicle parking.
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601 (k)(i) Maintain the existing density of residential
602 properties or recreational vehicle parks if the properties are
603 intended for residential use and are located in the
604 unincorporated areas that have sufficient infrastructure, as
605 determined by a local governing authority, and are not located
606 within a coastal high-hazard area under s. 163.3178.
607 (l)(j) Incorporate preexisting development orders
608 identified pursuant to s. 163.3167(3).
609 (5)(a) Land development regulations relating to building
610 design elements may not be applied to a single-family or two-
611 family dwelling unless:
612 1. The dwelling is listed in the National Register of
613 Historic Places, as defined in s. 267.021(5); is located in a
614 National Register Historic District; or is designated as a
615 historic property or located in a historic district, under the
616 terms of a local preservation ordinance;
617 2. The regulations are adopted in order to implement the
618 National Flood Insurance Program;
619 3. The regulations are adopted pursuant to and in
620 compliance with chapter 553;
621 4. The dwelling is located in a community redevelopment
622 area, as defined in s. 163.340(10);
623 5. The regulations are required to ensure protection of
624 coastal wildlife in compliance with s. 161.052, s. 161.053, s.
625 161.0531, s. 161.085, s. 161.163, or chapter 373; or
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626 6. The dwelling is located in a planned unit development
627 or master planned community created pursuant to a local
628 ordinance, resolution, or other final action approved by the
629 local governing body; or
630 6.7. The dwelling is located within the jurisdiction of a
631 local government that has a design review board or architectural
632 review board created before January 1, 2020.
633 (b) For purposes of this subsection, the term:
634 1. "Building design elements" means the external building
635 color; the type or style of exterior cladding material; the
636 style or material of roof structures or porches; the exterior
637 nonstructural architectural ornamentation; the location or
638 architectural styling of windows or doors; the location or
639 orientation of the garage; the number and type of rooms; and the
640 interior layout of rooms. The term does not include the height,
641 bulk, orientation, or location of a dwelling on a zoning lot; or
642 the use of buffering or screening to minimize potential adverse
643 physical or visual impacts or to protect the privacy of
644 neighbors.
645 2. "Planned unit development" or "master planned
646 community" means an area of land that is planned and developed
647 as a single entity or in approved stages with uses and
648 structures substantially related to the character of the entire
649 development, or a self-contained development in which the
650 subdivision and zoning controls are applied to the project as a
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651 whole rather than to individual lots.
652 (c) This subsection does not affect the validity or
653 enforceability of private covenants or other contractual
654 agreements relating to building design elements.
655 Section 6. Paragraph (g) of subsection (5) of section
656 163.3246, Florida Statutes, is amended to read:
657 163.3246 Local government comprehensive planning
658 certification program.—
659 (5) If the local government meets the eligibility criteria
660 of subsection (2), the state land planning agency shall certify
661 all or part of a local government by written agreement, which
662 shall be considered final agency action subject to challenge
663 under s. 120.569. The agreement must include the following
664 components:
665 (g) Criteria to evaluate the effectiveness of the
666 certification process in achieving the community-development
667 goals for the certification area including:
668 1. Measuring the compactness of growth, expressed as the
669 ratio between population growth and land consumed;
670 2. Increasing residential density and intensity
671 intensities of use;
672 3. Measuring and reducing vehicle miles traveled and
673 increasing the interconnectedness of the street system,
674 pedestrian access, and mass transit;
675 4. Measuring the balance between the location of jobs and
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676 housing;
677 5. Improving the housing mix within the certification
678 area, including the provision of mixed-use neighborhoods,
679 affordable housing, and the creation of an affordable housing
680 program if such a program is not already in place;
681 6. Promoting mixed-use developments as an alternative to
682 single-purpose centers;
683 7. Promoting clustered development having dedicated open
684 space;
685 8. Linking commercial, educational, and recreational uses
686 directly to residential growth;
687 9. Reducing per capita water and energy consumption;
688 10. Prioritizing environmental features to be protected
689 and adopting measures or programs to protect identified
690 features;
691 11. Reducing hurricane shelter deficits and evacuation
692 times and implementing the adopted mitigation strategies; and
693 12. Improving coordination between the local government
694 and school board.
695 Section 7. Paragraph (a) of subsection (2) of section
696 189.08, Florida Statutes, is amended to read:
697 189.08 Special district public facilities report. —
698 (2) Each independent special district shall submit to each
699 local general-purpose government in which it is located a public
700 facilities report and an annual notice of any changes. The
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701 public facilities report shall specify the following
702 information:
703 (a) A description of existing public facilities owned or
704 operated by the special district, and each public facility that
705 is operated by another entity, except a local general -purpose
706 government, through a lease or other agreement with the special
707 district. This description shall include the current capacity of
708 the facility, the current demands placed upon it, and its
709 location. This information shall be required in the initial
710 report and updated every 7 years at least 12 months before the
711 submission date of the evaluation and appraisal notification
712 letter of the appropriate local government required by s.
713 163.3191. The department shall post a schedule on its website,
714 based on the evaluation and appraisal notification schedule
715 prepared pursuant to s. 163.3191(6) s. 163.3191(5), for use by a
716 special district to determine when its public facil ities report
717 and updates to that report are due to the local general -purpose
718 governments in which the special district is located.
719 Section 8. Subsection (29) of section 479.01, Florida
720 Statutes, is amended to read:
721 479.01 Definitions.—As used in this chapter, the term:
722 (29) "Zoning category" means the designation under the
723 land development regulations or other similar ordinance enacted
724 to regulate the use of land as provided in s. 163.3202(2) s.
725 163.3202(2)(b), which designation sets forth the allowable uses,
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726 restrictions, and limitations on use applicable to properties
727 within the category.
728 Section 9. This act shall take effect July 1, 2023.
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COMMERCE COMMITTEE
HB 439 by Rep. McClain
Land Use and Development Regulations
AMENDMENT SUMMARY
April 10, 2023
Amendment 1 by Rep. McClain (strike all):
• Clarifies language related to land use and environmental dispute resolutions, support
data and the summaries utilized in the preparation of the comprehensive plan, and the
evaluation and appraisal of comprehensive plan.
• Reverts some definitions back to current law, including density, urban service area, and
urban sprawl.
• Reverts the local government comprehensive planning certification program back to
current law.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 439 (2023)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/O OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Commerce Committee
2 Representative McClain offered the following:
3
4 Amendment (with title amendment)
5 Remove everything after the enacting clause and insert:
6
7 Section 1. Paragraph (h) of subsection (18) of section
8 70.51, Florida Statutes, is redesignated as paragraph (i),
9 paragraph (a) of subsection (17), paragraph (a) of subsection
10 (21), and subsection (25) are amended, and a new paragraph (h)
11 is added to subsection (18) of that section, to read:
12 70.51 Land use and environmental dispute resolution. —
13 (17) In all respects, the hearing must be informal and
14 open to the public and does not require the use of an attorney.
15 The hearing must operate at the direction and under the
16 supervision of the special magistrate. The object of the hearing
072641 - hb0439-strike all.docx
Published On: 4/7/2023 4:16:11 PM
Page 1 of 28
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 439 (2023)
Amendment No. 1
17 is to focus attention on the impact of the governmental action
18 giving rise to the request for relief and to explore
19 alternatives to the development order or enforcement action and
20 other regulatory efforts by the governmental entities in order
21 to recommend relief, when appropriate, to the owner.
22 (a) The first responsibility of the special magistrate is
23 to facilitate a resolution of the conflict between the owner and
24 governmental entities to the end that some modification of the
25 owner's proposed use of the property or adjustment in the
26 development order or enforcement action or regulatory efforts by
27 one or more of the governmental parties may be reached.
28 Accordingly, the special magistrate shall act as a facilitator
29 or mediator between the parties in an effort to effect a
30 mutually acceptable solution. The parties shall be represented
31 at the mediation by persons with authority to bind their
32 respective parties to a solution, or by persons with authority
33 to recommend a solution directly to the persons with authority
34 to bind their respective parties to a solution. A negotiated
35 settlement may include, but is not limited to, one or more of
36 the following types of relief or other extraordinary relief
37 deemed appropriate by the parties:
38 1. An adjustment of land development or permit standards
39 or other provisions controlling the development or use of land
40 for the property subject to the dispute or other property owned
41 or controlled by the parties to the settlement.
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42 2. Increases or modifications in the density, intensity,
43 or use of areas of development.
44 3. The transfer of development rights.
45 4. Land swaps or exchanges.
46 5. Mitigation relief, including payments in lieu of onsite
47 mitigation.
48 6. Location on the least sensitive portion of the
49 property.
50 7. Conditioning the amount of development or use
51 permitted.
52 8. A requirement that issues be addressed on a more
53 comprehensive basis than a single proposed use or development.
54 9. Issuance of the development order, a variance, a
55 special exception, or other extraordinary relief, including
56 withdrawal of the enforcement action.
57 10. Purchase of the real property, or an interest therein,
58 by an appropriate governmental entity or payment of
59 compensation.
60 (18) The circumstances to be examined in determining
61 whether the development order or enforcement action, or the
62 development order or enforcement action in conjunction with
63 regulatory efforts of other governmental parties, is
64 unreasonable or unfairly burdens use of the property may
65 include, but are not limited to:
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66 (h) The public interest served by the local comprehensive
67 plan provisions that are inconsistent with the proposed relief
68 granted by the special magistrate's recommendation.
69 (21) Within 45 days after receipt of the special
70 magistrate's recommendation, the governmental entity responsible
71 for the development order or enforcement action and other
72 governmental entities participating in the proceeding must
73 consult among themselves and each governmental entity must:
74 (a) Accept the recommendation of the special magistrate as
75 submitted and proceed to implement it by development agreement,
76 when appropriate, or by other method, in the ordinary course and
77 consistent with the rules and procedures of that governmental
78 entity. However, the decision of the governmental entity to
79 accept the recommendation of the special magistrate with respect
80 to granting a rezoning, modification, variance, or special
81 exception to the application of statutes, rules, regulations,
82 comprehensive plans, or ordinances as they would otherwise apply
83 to the subject property does not require an owner to duplicate
84 previous processes in which the owner has participated in order
85 to effectuate the granting of the modification, variance, or
86 special exception. Any recommendation of the special magistrate
87 with respect to granting a rezoning of property is not
88 considered contract zoning;
89 (25) Regardless of the action the governmental entity
90 takes on the special magistrate's recommendation, a
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91 recommendation that the development order or enforcement action,
92 or the development order or enforcement action in combination
93 with other governmental regulatory actions, is unreasonable or
94 unfairly burdens use of the owner's real property may serve as
95 an indication of sufficient hardship to support a rezoning,
96 modification, variance variances, or special exception
97 exceptions to the application of statutes, rules, regulations,
98 or ordinances to the subject property. If the relief granted
99 within the special magistrate's recommendation or a negotiated
100 settlement entered into under this section has the effect of
101 contravening local comprehensive plans or is inconsistent with
102 the local government's adopted comprehensive plan, the
103 recommendation or approved negotiated settlement shall be deemed
104 consistent with the comprehensive plan under s. 163.3194 if the
105 special magistrate or the governing body of the local government
106 finds that the settlement agreement and approved development
107 protects the public interest served by the comprehensive plan
108 provisions with which the development conflicts.
109 Section 2. Paragraph (f) of subsection (1), subsection
110 (2), paragraph (a) of subsection (5), and paragraph (a) of
111 subsection (6) of section 163.3177, Florida Statutes, are
112 amended to read:
113 163.3177 Required and optional elements of comprehensive
114 plan; studies and surveys.—
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115 (1) The comprehensive plan shall provide the principles,
116 guidelines, standards, and strategies for the orderly and
117 balanced future economic, social, physical, environmental, and
118 fiscal development of the area that reflects community
119 commitments to implement the plan and its elements. These
120 principles and strategies shall guide future decisions in a
121 consistent manner and shall contain programs and activities to
122 ensure comprehensive plans are implemented. The sections of the
123 comprehensive plan containing the principles and strategies,
124 generally provided as goals, objectives, and policies, shall
125 describe how the local government's programs, activities, and
126 land development regulations will be initiated, modified, or
127 continued to implement the comprehensive plan in a consistent
128 manner. It is not the intent of this part to require the
129 inclusion of implementing regulations in the comprehensive plan
130 but rather to require identification of those programs,
131 activities, and land development regulations that will be part
132 of the strategy for implementing the comprehensive plan and the
133 principles that describe how the programs, activities, and land
134 development regulations will be carried out. The plan shall
135 establish meaningful and predictable standards for the use and
136 development of land and provide meaningful guidelines for the
137 content of more detailed land development and use regulations.
138 (f) All required mandatory and optional elements of the
139 comprehensive plan and plan amendments must shall be based upon
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140 relevant and appropriate data and an analysis by the local
141 government that may include, but not be limited to, surveys,
142 studies, community goals and vision, and other data available at
143 the time of adoption of the comprehensive plan or plan
144 amendment. To be based on data means to react to it in an
145 appropriate way and to the extent necessary indicated by the
146 data available on that particular subject at the time of
147 adoption of the plan or plan amendment at issue.
148 1. Surveys, studies, and data utilized in the preparation
149 of the comprehensive plan may not be deemed a part of the
150 comprehensive plan unless adopted as a part of it. Copies of
151 such studies, surveys, data, and supporting documents for
152 proposed plans and plan amendments must shall be made available
153 for public inspection, and copies of such plans must shall be
154 made available to the public upon payment of reasonable charges
155 for reproduction. Support data or summaries shall be are not
156 subject to the compliance review process. , but The
157 comprehensive plan, the support data, and the summaries must be
158 clearly based on current appropriate data and analysis, which is
159 relevant to and correlates to the proposed amendment. Support
160 data or summaries may be used to aid in the determination of
161 compliance and consistency.
162 2. Data must be taken from professionally accepted
163 sources. The application of a methodology utilized in data
164 collection or whether a particular methodology is professionally
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165 accepted may be evaluated. However, the evaluation may not
166 include whether one accepted methodology is better than another.
167 Original data collection by local governments is not required.
168 However, local governments may use original data so long as
169 methodologies are professionally accepted.
170 3. The comprehensive plan must shall be based upon
171 permanent and seasonal population estimates and projections,
172 which must shall either be those published by the Office of
173 Economic and Demographic Research or generated by the local
174 government based upon a professionally acceptable methodology ,
175 whichever is greater. The plan must be based on at least the
176 minimum amount of land required to accommodate the medium
177 projections as published by the Office of Economic and
178 Demographic Research for at least a 10-year planning period
179 unless otherwise limited under s. 380.05, including related
180 rules of the Administration Commission. Absent physical
181 limitations on population growth, population projections for
182 each municipality, and the unincorporated area within a county
183 must, at a minimum, be reflective of each area's proportiona l
184 share of the total county population and the total county
185 population growth.
186 (2) Coordination of the required and optional several
187 elements of the local comprehensive plan must shall be a major
188 objective of the planning process. The required and optional
189 several elements of the comprehensive plan must shall be
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190 consistent. Optional elements of the comprehensive plan may not
191 contain policies that restrict the density or intensity
192 established in the future land use element. Where data is
193 relevant to required and optional several elements, consistent
194 data must shall be used, including population estimates and
195 projections unless alternative data can be justified for a plan
196 amendment through new supporting data and analysis. Each map
197 depicting future conditions must reflect the principles,
198 guidelines, and standards within all elements, and each such map
199 must be contained within the comprehensive plan.
200 (5)(a) Each local government comprehensive plan must
201 include at least two planning periods, one covering at l east the
202 first 10-year 5-year period occurring after the plan's adoption
203 and one covering at least a 20-year 10-year period. Additional
204 planning periods for specific components, elements, land use
205 amendments, or projects shall be permissible and accepted as
206 part of the planning process.
207 (6) In addition to the requirements of subsections (1) -
208 (5), the comprehensive plan shall include the following
209 elements:
210 (a) A future land use plan element designating proposed
211 future general distribution, location, and extent of the uses of
212 land for residential uses, commercial uses, industry,
213 agriculture, recreation, conservation, education, public
214 facilities, and other categories of the public and private uses
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215 of land. The approximate acreage and the general range of
216 density or intensity of use must shall be provided for the gross
217 land area included in each existing land use category. The
218 element must shall establish the long-term end toward which land
219 use programs and activities are ultimately directed.
220 1. Each future land use category must be defined in terms
221 of uses included, and must include standards to be followed in
222 the control and distribution of population densities and
223 building and structure intensities. The proposed distribution,
224 location, and extent of the various categories of land use must
225 shall be shown on a land use map or map series which is shall be
226 supplemented by goals, policies, and measurable objectives.
227 2. The future land use plan and plan amendments must shall
228 be based upon surveys, studies, and data regarding the area, as
229 applicable, including:
230 a. The amount of land required to accommodate anticipated
231 growth, including the amount of land necessary to accommodate
232 single-family, two-family, and fee simple townhome development.
233 b. The projected permanent and seasonal population of the
234 area.
235 c. The character of undeveloped land.
236 d. The availability of water supplies, public facilities,
237 and services.
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238 e. The amount of land located outside the urban service
239 area, excluding lands designated for conservation, preservation,
240 or other public use.
241 f.e. The need for redevelopment, including the renewal of
242 blighted areas and the elimination of nonconforming uses which
243 are inconsistent with the character of the community.
244 g.f. The compatibility of uses on lands adjacent to or
245 closely proximate to military installations.
246 h.g. The compatibility of uses on lands adjacent to an
247 airport as defined in s. 330.35 and consistent with s. 333.02.
248 i.h. The discouragement of urban sprawl.
249 j.i. The need for job creation, capital investment, and
250 economic development that will strengthen and diversify the
251 community's economy.
252 k.j. The need to modify land uses and development patterns
253 within antiquated subdivisions.
254 3. The future land use plan element must shall include
255 criteria to be used to:
256 a. Achieve the compatibility of lands adjacent or closely
257 proximate to military installations, considering factors
258 identified in s. 163.3175(5).
259 b. Achieve the compatibility of lands adjacent to an
260 airport as defined in s. 330.35 and consistent with s. 333.02.
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261 c. Encourage preservation of recreational and commercial
262 working waterfronts for water-dependent uses in coastal
263 communities.
264 d. Encourage the location of schools proximate to urban
265 service residential areas to the extent possible and encourage
266 the location of schools in all areas if necessary to provide
267 adequate school capacity to serve residential development.
268 e. Coordinate future land uses with the topography and
269 soil conditions, and the availability of facilities and
270 services.
271 f. Ensure the protection of natural and historic
272 resources.
273 g. Provide for the compatibility of adjacent land uses.
274 h. Provide guidelines for the implementation of mixed-use
275 development including the types of uses allowed, the percentage
276 distribution among the mix of uses, or other standards, and the
277 density and intensity of each use.
278 4. The amount of land designated for future planned uses
279 must shall provide a balance of uses that foster vibrant, viable
280 communities and economic development opportunities and address
281 outdated development patterns, such as antiquated subdivisions.
282 The amount of land designated for future land uses should allow
283 the operation of real estate markets to provide adequate choices
284 for permanent and seasonal residents and business and may not be
285 limited solely by the projected population. The element must
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286 shall accommodate at least the minimum amount of land required
287 to accommodate the medium projections as published by the Office
288 of Economic and Demographic Research for at least a 10-year
289 planning period unless otherwise limited under s. 380.05,
290 including related rules of the Administration Commission.
291 5. The future land use plan of a county may designate
292 areas for possible future municipal incorporation.
293 6. The land use maps or map series must shall generally
294 identify and depict historic district boundaries and must shall
295 designate historically significant properties meriting
296 protection.
297 7. The future land use element must clearly identify the
298 land use categories in which public schools are an allowable
299 use. When delineating the land use categories in which public
300 schools are an allowable use, a local government shall include
301 in the categories sufficient land proximate to residential
302 development to meet the projected needs for schools in
303 coordination with public school boards and may establish
304 differing criteria for schools of different type or size. Each
305 local government shall include lands contiguous to existing
306 school sites, to the maximum extent possible, within the land
307 use categories in which public schools are an allowable use.
308 8. Future land use map amendments must shall be based upon
309 the following analyses:
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310 a. An analysis of the availability of facilities and
311 services.
312 b. An analysis of the suitability of the plan amendment
313 for its proposed use considering the character of the
314 undeveloped land, soils, topography, natural resources, and
315 historic resources on site.
316 c. An analysis of the minimum amount of land needed to
317 achieve the goals and requirements of this section.
318 9. The future land use element must and any amendment to
319 the future land use element shall discourage the proliferation
320 of urban sprawl by planning for future development as provided
321 in this section.
322 a. The primary indicators that a plan or plan amendment
323 does not discourage the proliferation of urban sprawl are listed
324 below. The evaluation of the presence of these indicators shall
325 consist of an analysis of the plan or plan amendment within the
326 context of features and characteristics unique to each locality
327 in order to determine whether the plan or plan amendment:
328 (I) Promotes, allows, or designates for development
329 substantial areas of the jurisdiction to develop as low -
330 intensity, low-density, or single-use development or uses.
331 (II) Promotes, allows, or designates significant amounts
332 of urban development to occur in rural areas at substantial
333 distances from existing urban areas while not using undeveloped
334 lands that are available and suitable for development.
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335 (III) Promotes, allows, or designates urban development in
336 radial, strip, isolated, or ribbon patterns generally emanating
337 from existing urban developments.
338 (IV) Fails to adequately protect and conserve natural
339 resources, such as wetlands, floodplains, native vegetation,
340 environmentally sensitive areas, natural groundwater aquifer
341 recharge areas, lakes, rivers, shorelines, beaches, bays,
342 estuarine systems, and other significant natural systems.
343 (V) Fails to adequately protect adjacent agricultural
344 areas and activities, including silviculture, active
345 agricultural and silvicultural activities, passive agricultural
346 activities, and dormant, unique, and prime farmlands and soils.
347 (VI) Fails to maximize use of existing public facilities
348 and services.
349 (VII) Fails to maximize use of future public facilities
350 and services.
351 (VIII) Allows for land use patterns or timing which
352 disproportionately increase the cost in time, money, and energy
353 of providing and maintaining facilities and services, including
354 roads, potable water, sanitary sewer, stormwater management, law
355 enforcement, education, health care, fire and emergency
356 response, and general government.
357 (IX) Fails to provide a clear separation between rural and
358 urban uses.
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359 (X) Discourages or inhibits infill development or the
360 redevelopment of existing neighborhoods and communities.
361 (XI) Fails to encourage a functional mix of uses.
362 (XII) Results in poor accessibility among linked or
363 related land uses.
364 (XIII) Results in the loss of significant amounts of
365 functional open space.
366 b. The future land use element or plan amendment shall be
367 determined to discourage the proliferation of urban sprawl if it
368 incorporates a development pattern or urban form that achieves
369 four or more of the following:
370 (I) Directs or locates economic growth and associated land
371 development to geographic areas of the community in a manner
372 that does not have an adverse impact on and protects natural
373 resources and ecosystems.
374 (II) Promotes the efficient and cost-effective provision
375 or extension of public infrastructure and services.
376 (III) Promotes walkable and connected communities and
377 provides for compact development and a mix of uses at densities
378 and intensities that will support a range of housing choices and
379 a multimodal transportation system, including pedestrian,
380 bicycle, and transit, if available.
381 (IV) Promotes conservation of water and energy.
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382 (V) Preserves agricultural areas and activities, including
383 silviculture, and dormant, unique, and prime farmlands a nd
384 soils.
385 (VI) Preserves open space and natural lands and provides
386 for public open space and recreation needs.
387 (VII) Creates a balance of land uses based upon demands of
388 the residential population for the nonresidential needs of an
389 area.
390 (VIII) Provides uses, densities, and intensities of use
391 and urban form that would remediate an existing or planned
392 development pattern in the vicinity that constitutes sprawl or
393 if it provides for an innovative development pattern such as
394 transit-oriented developments or new towns as defined in s.
395 163.3164.
396 10. The future land use element must shall include a
397 future land use map or map series.
398 a. The proposed distribution, extent, and location of the
399 following uses must shall be shown on the future land use map or
400 map series:
401 (I) Residential.
402 (II) Commercial.
403 (III) Industrial.
404 (IV) Agricultural.
405 (V) Recreational.
406 (VI) Conservation.
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407 (VII) Educational.
408 (VIII) Public.
409 b. The following areas must shall also be shown on the
410 future land use map or map series, if applicable:
411 (I) Historic district boundaries and designated
412 historically significant properties.
413 (II) Transportation concurrency management area boundaries
414 or transportation concurrency exception area boundaries.
415 (III) Multimodal transportation district boundaries.
416 (IV) Mixed-use categories.
417 c. The following natural resources or conditions must
418 shall be shown on the future land use map or map series, if
419 applicable:
420 (I) Existing and planned public potable waterwells, cones
421 of influence, and wellhead protection areas.
422 (II) Beaches and shores, including estuarine systems.
423 (III) Rivers, bays, lakes, floodplains, and harbors.
424 (IV) Wetlands.
425 (V) Minerals and soils.
426 (VI) Coastal high hazard areas.
427 Section 3. Section 163.3191, Florida Statutes, is amended
428 to read:
429 163.3191 Evaluation and appraisal of comprehensive plan.—
430 (1) At least once every 7 years, each local government
431 shall evaluate its comprehensive plan to determine if plan
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432 amendments are necessary to reflect a minimum planning period of
433 at least 10 years as provided in s. 163.3177(5), or to reflect
434 changes in state requirements in this part since the last update
435 of the comprehensive plan, and notify the state land planning
436 agency as to its determination. The notification shall include a
437 separate affidavit, signed by the chair of the governing body of
438 the county and the mayor of the municipality, attesting that all
439 elements of its comprehensive plan comply with this subsection.
440 The affidavit must also include a certification that the adopted
441 comprehensive plan contains the minimum planning period of 10
442 years, as provided in s. 163.3177(5), and must cite the source
443 and date of the population projections used in establishing the
444 10-year planning period.
445 (2) If the local government determines amendments to its
446 comprehensive plan are necessary to reflect changes in state
447 requirements, the local government must shall prepare and
448 transmit within 1 year such plan amendment or amendments for
449 review pursuant to s. 163.3184.
450 (3) Local governments shall are encouraged to
451 comprehensively evaluate and, as necessary, update comprehensive
452 plans to reflect changes in local conditions. Plan amendments
453 transmitted pursuant to this section must shall be reviewed
454 pursuant to s. 163.3184(4). Updates to the required and optional
455 elements of the comprehensive plan must be processed in the same
456 plan amendment cycle.
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457 (4) If a local government fails to submit the its letter
458 and affidavit prescribed by subsection (1) or transmit the
459 update to its plan pursuant to subsection (3) within 1 year
460 after the date the letter was transmitted to the state land
461 planning agency (2), it may not initiate or adopt any publicly
462 initiated plan amendments to amend its comprehensive plan until
463 such time as it complies with this section, unless otherwise
464 required by general law. This prohibition on plan amendments
465 does not apply to privately initiated plan amendments. The
466 failure of the local government to timely update its plan may
467 not be the basis for the denial of privately initiated
468 comprehensive plan amendments.
469 (5) If it is determined that a local government has failed
470 to update its comprehensive plan pursuant to this section, the
471 state land planning agency must provide the required population
472 projections that must be used by the local government to update
473 the comprehensive plan. The local government shall initiate an
474 update to its comprehensive plan within 3 months after the
475 receipt of the population projections and must transmit the
476 update within 12 months. If the state land planning agency does
477 not find the update to be in compliance, the agency must
478 establish the timeline to address such deficiencies, not to
479 exceed an additional 12-month period. If the update is
480 challenged by a third party, the local government may seek
481 approval from the state land planning agency to process publicly
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482 initiated plan amendments that are necessary to accommodate
483 population growth during the pendency of the litigation. During
484 the update process, the local government may provide al ternative
485 population projections based on professionally accepted
486 methodologies, but only if those population projections exceed
487 the population projections provided by the state land planning
488 agency and only if the update is completed within the time
489 period provided in this subsection.
490 (6)(5) The state land planning agency may not adopt rules
491 to implement this section, other than procedural rules or a
492 schedule indicating when local governments must comply with the
493 requirements of this section.
494 Section 4. Subsections (2) and (5) of section 163.3202,
495 Florida Statutes, are amended to read:
496 163.3202 Land development regulations.—
497 (2) Local land development regulations shall contain
498 specific and detailed provisions necessary or desirable to
499 implement the adopted comprehensive plan and shall at a minimum:
500 (a) Regulate the subdivision of land.
501 (b) Establish minimum lot sizes within single-family, two-
502 family, and fee simple, single-family townhouse zoning districts
503 to accommodate the maximum density authorized in the
504 comprehensive plan, net of the land area required to be set
505 aside for subdivision roads, sidewalks, stormwater ponds, open
506 space, landscape buffers, and any other mandatory land
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507 development regulations that require land to be set aside that
508 could otherwise be used for the development of single -family
509 homes, two-family homes, and fee simple, single-family
510 townhouses.
511 (c) Establish infill development standards for single-
512 family homes, two-family homes, and fee simple townhouse
513 dwelling units to allow for the administrative approval of
514 development of infill single-family homes, two-family homes, and
515 fee simple, single-family townhouses.
516 (d)(b) Regulate the use of land and water for those land
517 use categories included in the land use element and ensure the
518 compatibility of adjacent uses and provide for open space.
519 (e)(c) Provide for protection of potable water wellfields.
520 (f)(d) Regulate areas subject to seasonal and periodic
521 flooding and provide for drainage and stormwater management.
522 (g)(e) Ensure the protection of environmentally sensitive
523 lands designated in the comprehensive plan.
524 (h)(f) Regulate signage.
525 (i)(g) Provide that public facilities and services meet or
526 exceed the standards established in the capital improvements
527 element required by s. 163.3177 and are available when needed
528 for the development, or that development orders and permits are
529 conditioned on the availability of these public facilities and
530 services necessary to serve the proposed development. A local
531 government may not issue a development order or permit that
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 439 (2023)
Amendment No. 1
532 results in a reduction in the level of services for the affected
533 public facilities below the level of services provided in the
534 local government's comprehensive plan.
535 (j)(h) Ensure safe and convenient onsite traffic flow,
536 considering needed vehicle parking.
537 (k)(i) Maintain the existing density of residential
538 properties or recreational vehicle parks if the properties are
539 intended for residential use and are located in the
540 unincorporated areas that have sufficient infrastructure, as
541 determined by a local governing authority, and are not located
542 within a coastal high-hazard area under s. 163.3178.
543 (l)(j) Incorporate preexisting development orders
544 identified pursuant to s. 163.3167(3).
545 (5)(a) Land development regulations relating to building
546 design elements may not be applied to a single-family or two-
547 family dwelling unless:
548 1. The dwelling is listed in the National Register of
549 Historic Places, as defined in s. 267.021(5); is located in a
550 National Register Historic District; or is designated as a
551 historic property or located in a historic district, under the
552 terms of a local preservation ordinance;
553 2. The regulations are adopted in order to implement the
554 National Flood Insurance Program;
555 3. The regulations are adopted pursuant to and in
556 compliance with chapter 553;
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 439 (2023)
Amendment No. 1
557 4. The dwelling is located in a community redevelopment
558 area, as defined in s. 163.340(10);
559 5. The regulations are required to ensure protection of
560 coastal wildlife in compliance with s. 161.052, s. 161.053, s.
561 161.0531, s. 161.085, s. 161.163, or chapter 373; or
562 6. The dwelling is located in a planned unit development
563 or master planned community created pursuant to a local
564 ordinance, resolution, or other final action approved by the
565 local governing body; or
566 6.7. The dwelling is located within the jurisdiction of a
567 local government that has a design review board or architectural
568 review board created before January 1, 2020.
569 (b) For purposes of this subsection, the term:
570 1. "building design elements" means the external building
571 color; the type or style of exterior cladding material; the
572 style or material of roof structures or porches; the exterior
573 nonstructural architectural ornamentation; the location or
574 architectural styling of windows or doors; the location or
575 orientation of the garage; the number and type of rooms; and the
576 interior layout of rooms. The term does not include the height,
577 bulk, orientation, or location of a dwelling on a zoning lot; or
578 the use of buffering or screening to minimize potential adverse
579 physical or visual impacts or to protect the privacy of
580 neighbors.
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 439 (2023)
Amendment No. 1
581 2. "Planned unit development" or "master planned
582 community" means an area of land that is planned and developed
583 as a single entity or in approved stages with uses and
584 structures substantially related to the character of the entire
585 development, or a self-contained development in which the
586 subdivision and zoning controls are applied to the project as a
587 whole rather than to individual lots.
588 (c) This subsection does not affect the validity or
589 enforceability of private covenants or other contractual
590 agreements relating to building design elements.
591 Section 5. Paragraph (a) of subsection (2) of section
592 189.08, Florida Statutes, is amended to read:
593 189.08 Special district public facilities report. —
594 (2) Each independent special district shall submit to each
595 local general-purpose government in which it is located a public
596 facilities report and an annual notice of any changes. The
597 public facilities report shall specify the following
598 information:
599 (a) A description of existing public facilities owned or
600 operated by the special district, and each public facility that
601 is operated by another entity, except a local general -purpose
602 government, through a lease or other agreement with the special
603 district. This description shall include the current capacity of
604 the facility, the current demands placed upon it, and its
605 location. This information shall be required in the initial
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 439 (2023)
Amendment No. 1
606 report and updated every 7 years at least 12 months before the
607 submission date of the evaluation and appraisal notification
608 letter of the appropriate local government required by s.
609 163.3191. The department shall post a schedule on its website,
610 based on the evaluation and appraisal notification schedule
611 prepared pursuant to s. 163.3191(6) s. 163.3191(5), for use by a
612 special district to determine when its public facilities report
613 and updates to that report are due to the local general -purpose
614 governments in which the special district is located.
615 Section 6. Subsection (29) of section 479.01, Florida
616 Statutes, is amended to read:
617 479.01 Definitions.—As used in this chapter, the term:
618 (29) "Zoning category" means the designation under the
619 land development regulations or other similar ordinance enacted
620 to regulate the use of land as provided in s. 163.3202(2) s.
621 163.3202(2)(b), which designation sets forth the allowable uses,
622 restrictions, and limitations on use applicable to properties
623 within the category.
624 Section 7. This act shall take effect July, 1, 2023
625
626 -----------------------------------------------------
627 T I T L E A M E N D M E N T
628 Remove everything before the enacting clause and insert:
629 An act relating to land use and development regulations;
630 amending s. 70.51, F.S.; providing the types of relief that may
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 439 (2023)
Amendment No. 1
631 be included in a negotiated settlement; requiring a special
632 magistrate to consider the public interest served by
633 comprehensive plan provisions that are inconsistent with
634 proposed relief; revising the requirements of a governmental
635 entity after the receipt of a special magistrate's
636 recommendation; revising the effect of a special magistrate's
637 recommendation; providing procedures for deeming relief granted
638 by a special magistrate's recommendation or a negot iated
639 settlement consistent with comprehensive plan; amending s.
640 163.3177, F.S.; revising the types of data that comprehensive
641 plans and plan amendments must be based on; revising means by
642 which an application of a methodology used in data collection or
643 whether a particular methodology is professionally accepted may
644 be evaluated; revising the elements that must be included in a
645 comprehensive plan; revising the planning periods that must be
646 included in a comprehensive plan; amending s. 163.3191, F.S.;
647 revising the frequency at which a local government must evaluate
648 its comprehensive plan for specified purposes; requiring, rather
649 than authorizing, a local government to comprehensively evaluate
650 and update its comprehensive plans to reflect changes in local
651 conditions; requiring a local government to submit an affidavit
652 for specified purposes; prohibiting a local government from
653 publicly initiating or adopting plan amendments to its
654 comprehensive plan when it fails to meet certain requirements;
655 requiring the state land planning agency to provide certain
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 439 (2023)
Amendment No. 1
656 information when a local government fails to update its
657 comprehensive plan; setting forth procedures when the state land
658 planning agency does not find such update to be in compliance or
659 if the update is challenged by a third party; amending s.
660 163.3202, F.S.; revising content requirements for local land
661 development regulations; revising exceptions to applicability of
662 land development regulations relating to single-family or two-
663 family dwelling building design elements; deleting a definition;
664 amending ss. 189.08 and 479.01, F.S.; conforming cross-
665 references; providing an effective date
666
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HB 523
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 523 Individual Wine Containers
SPONSOR(S): LaMarca
TIED BILLS: IDEN./SIM. BILLS: SB 534
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform & Economic Development 15 Y, 0 N Wright Anstead
Subcommittee
2) Commerce Committee Wright Hamon
SUMMARY ANALYSIS
In Florida, the Beverage Law regulates the manufacture, distribution, and sale of wine, beer, and liquor by
manufacturers, distributors, and vendors. The Division of Alcoholic Beverages and Tobacco in the Department
of Business and Professional Regulation administers and enforces the Beverage Law.
Current law addressing limitations on the size of individual wine containers provides the following:
The sale of wine in an individual container that holds more than one gallon of wine is prohibited.
Wine may be sold in a reusable container of 5.16 gallons.
Distributors and manufacturers are allowed to sell wine to other distributors and manufacturers in
containers of any size.
Except for restaurants in certain situations, wine sold or offered for sale by a licensed vendor to be
consumed off the premises must be in the unopened original container.
Violations are a second-degree misdemeanor.
The bill repeals the law relating to limitations on the size of individual wine containers.
The bill does not appear to have a fiscal impact on state or local governments.
The bill provides an effective date of July 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h0523b.COM
DATE: 4/6/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Beverage Law
In Florida, the Beverage Law 1 regulates the manufacture, distribution, and sale of wine, beer, and liquor
by manufacturers, distributors, and vendors.2 The Division of Alcoholic Beverages and Tobacco
(Division) in the Department of Business and Professional Regulation (DBPR) administers and
enforces the Beverage Law.3
“Alcoholic beverages” are defined as “distilled spirits and all beverages containing one-half of 1 percent
or more alcohol by volume.” “Malt beverages” are brewed alcoholic beverages containing malt. 4
The license and registration classifications used in the Beverage Law include the following:
“Manufacturers” are those “licensed to manufacture alcoholic beverages and distribute the same
at wholesale to licensed distributors and to no one else within the state, unless authorized by
statute.”
“Distributors” are those “licensed to sell and distribute alcoholic beverages at wholesale to
persons who are licensed to sell alcoholic beverages.”
“Importers” are those licensed to sell, or to cause to be sold, shipped, and invoiced, alcoholic
beverages to licensed manufacturers or licensed distributors, and to no one else in this state. 5
“Vendors” are those “licensed to sell alcoholic beverages at retail only” and may not “purchase
or acquire in any manner for the purpose of resale any alcoholic beverages from any person not
licensed as a vendor, manufacturer, bottler, or distributor under the Beverage Law.” 6
Wine Container Limitations
“Wine” is defined as all beverages made from fresh fruits, berries, or grapes, either by natural
fermentation or by natural fermentation with brandy added, in the manner required by the laws and
regulations of the United States, and includes all sparkling wines, champagnes, combination of the
aforesaid beverages, sake, vermouths, and like products. Sugar, flavors, and coloring materials may be
added to wine to make it conform to the consumer’s taste, except that the ultimate flavor or the color of
the product may not be altered to imitate a beverage other than wine or to change the character of the
wine.7
Current law governing limitations of the size of wine containers: 8
Prohibits the sale of wine in an individual container that holds more than one gallon. However,
allows wine to be sold in a reusable container of 5.16 gallons.
Authorizes qualified distributors and manufacturers to sell wine to other qualified distributors
and manufacturers in any size container.9
Except for restaurants in certain situations,10 requires wine sold or offered for sale by a licensed
vendor to be consumed off-premises to be in the unopened original container.
1 Section 561.01(6), F.S., provides that the “The Beverage Law” includes chs. 561, 562, 563, 564, 565, 567, and 568, F.S.
2 See s. 561.14, F.S.
3 S. 561.02, F.S.
4 S. 563.01, F.S.
5 S. 561.01(5), F.S.
6 S. 561.14, F.S.
7 S. 564.01(1), F.S.
8 S. 564.05, F.S.
9 Id.
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Provides that violations are a second-degree misdemeanor, punishable by a maximum $500
fine11 and 60 days in prison.12
Effect of the Bill
The bill repeals s. 564.05, F.S., relating to limitations on the size of individual wine containers.
The bill provides an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1 Repeals s. 564.05, F.S., relating to limitations on the size of individual wine containers.
Section 2 Provides an effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill will allow the sale of wine in an individual container of any size. This may have a positive fiscal
impact on businesses that sell wine.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to affect county or municipal governments.
10 The exception allows restaurant patrons to leave the premises with “one unsealed bottle of wine for consumption off the premises,”
provided certain conditions are met. The wine bottle must be partially consumed with a full course meal, securely resealed by the
licensee or one of its employees, secured in a bag or container, wrapped in a way that shows it was previously opened, attach ed to a
dated receipt indicating the full course meal, and transported in a locked vehicle glove compartment, locked trunk, or behind the last
upright seat of a motor vehicle that is not equipped with a trunk. Section 564.09, F.S.
11 S. 775.083(1)(e), F.S.
12 S. 775.082(4)(b), F.S.
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2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill does not appear to create a need for rulemaking or rulemaking authority.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 523 2023
1 A bill to be entitled
2 An act relating to individual wine containers;
3 repealing s. 564.05, F.S., relating to the limitation
4 of size of individual wine containers; providing an
5 effective date.
6
7 Be It Enacted by the Legislature of the State of Florida:
8
9 Section 1. Section 564.05, Florida Statutes, is repealed.
10 Section 2. This act shall take effect July 1, 2023.
Page 1 of 1
CODING: Words stricken are deletions; words underlined are additions.
hb0523-00
CS/HB 541
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 541 Motor Vehicle Glass
SPONSOR(S): Insurance & Banking Subcommittee, Griffitts
TIED BILLS: IDEN./SIM. BILLS: SB 1002
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Insurance & Banking Subcommittee 15 Y, 0 N, As CS Fortenberry Lloyd
2) Civil Justice Subcommittee 12 Y, 4 N Mawn Jones
3) Commerce Committee Fortenberry Hamon
SUMMARY ANALYSIS
The deductible provisions of a motor vehicle insurance policy providing comprehensive or combined additional
coverage do not apply to the repair or replacement of the damaged windshield of any motor vehicle covered
under such policy. Therefore, a consumer often qualifies for motor vehicle glass repair or replacement without
paying a deductible out-of-pocket. Further, some motor vehicle glass repair shops (repair shop) currently offer
incentives, including cash and gift cards, in exchange for a consumer filing an insurance claim for motor
vehicle glass repair or replacement. This, combined with the practice of repair shops accepting an assignment
of the consumer’s post-loss repair benefits for windshield repair or replacement under a motor vehicle
insurance policy, may have contributed to the steep rise in motor vehicle glass lawsuits over the last few years.
The rise in such lawsuits may have, in turn, contributed to the increase in motor vehicle insurance premiums
faced by Florida consumers in recent years.
The bill:
Expands the definition of “motor vehicle repair” to include advanced driver assistance system (ADAS)
calibration or recalibration.
Defines ADAS to mean any motor vehicle electronic safety system that is associated with motor vehicle
glass and is designed to support the driver and motor vehicle in a manner intended to increase motor
vehicle safety and reduce losses associated with motor vehicle crashes.
Prohibits a repair shop or its employees from:
o Offering to a customer anything of value in exchange for making an insurance claim for motor
vehicle glass replacement or repair, including ADAS calibration or recalibration, and prohibits a
non-employee who is compensated for soliciting insurance claims from making such offers.
o Failing to provide electronic or written notice to the customer as to whether the calibration or
recalibration of ADAS is required as part of the replacement or repair of motor vehicle glass.
Authorizes an insurer to offer to an insured or an applicant for insurance, upon the issuance or renewal
of a policy providing comprehensive or combined additional coverage, a deductible of $250 for claims
of damage to the windshield of any motor vehicle covered under such policy, which the insured or
applicant may decline.
Prohibits a policyholder or any other person from entering into an assignment agreement for post-loss
benefits for motor vehicle glass replacement or repair under a motor vehicle insurance policy issued or
renewed on or after July 1, 2023; provides that any such agreement is void; and, unenforceable, and
defines “assignment agreement” for the purposes of this provision.
The bill does not appear to have a fiscal impact on state or local governments. It may have a positive or negative
direct economic impact on the private sector.
The bill provides an effective date of July 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h0541c.COM
DATE: 4/6/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
General Background
Motor Vehicle Repair Shops
Motor vehicle repair shops in Florida are regulated by the Department of Agriculture and Consumer
Services (DACS) under the Florida Motor Vehicle Repair Act (Repair Act). 1 The Repair Act requires that
all motor vehicle repair shops, with minor exceptions, register with DACS.2 A motor vehicle repair shop
may be fixed or mobile and includes a person or business that does motor vehicle glass work for
compensation.3
Under the Repair Act, it is unlawful for a motor vehicle repair shop or its employee to engage in certain
activities including misrepresenting that repairs have been made to a motor vehicle or fraudulently
altering any customer contract, estimate, invoice, or other document.4 The Repair Act provides for
various remedies for unlawful acts by motor vehicle repair shops, including notices of noncompliance,
administrative fines, orders to cease and desist, probation of registrants, and suspension or revocation
of registrations.5
Motor Vehicle Insurance
When a consumer purchases the minimum motor vehicle insurance required by Florida law, including
personal injury protection coverage (PIP), that consumer does not have first-party insurance coverage
for the repair or replacement of motor vehicle glass. However, a consumer who purchases
comprehensive coverage, which pays for damage to a motor vehicle caused by an event besides a
collision, generally has coverage for damaged or broken motor vehicle glass. 6 Because lenders often
require borrowers who obtain motor vehicle loans to also purchase comprehensive motor vehicle
insurance coverage, a consumer who owes money on a motor vehicle often has motor vehicle glass
coverage.7
Incentives for Motor Vehicle Glass Insurance Claims
Some motor vehicle glass repair shops currently offer incentives, including cash and gift cards, in
exchange for a consumer filing an insurance claim for motor vehicle glass repair or replacement.8
Consumers have also complained to DACS that they never received the incentives promised by the
motor vehicle glass repair shops, even after their motor vehicle glass was replaced and the claims were
submitted to the motor vehicle insurance companies. 9
Auto Glass America, a motor vehicle glass repair shop that advertises up to $100 cash back and a
$100 gift card for submitting a “qualifying” motor vehicle glass insurance claim, filed over 15,300 motor
1 Ss. 559.901-559.9221, F.S.
2 S. 559.904, F.S.
3 S. 559.903(6) and (7), F.S.
4 S. 559.920, F.S.
5 S. 559.921, F.S.
6 See Florida Department of Financial Services, Automobile Insurance a Toolk it for Consumers,
https://www.myfloridacfo.com/docs-sf/consumer-services-libraries/consumerservices -doc uments/understanding-
coverage/consumer-guides/english---automobile-insurance-toolkit.pdf?sfvrsn= 6b999793_4 (last visited Mar. 11, 2023).
7 Id. See discussion on deductible below.
8 See, e.g., https://webuywindshields.com/ (last visited Mar. 11, 2023).
9 See, e.g., Consumer Complaint No.: 225337/Case No. 1509-37312, submitted to DACS on Sept. 18, 2015; available on
request from DACS.
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vehicle glass related lawsuits against insurers in Florida between January 1, 2016, and February 7,
2019.10
Recognizing the dangers posed to consumers, many industries and professions currently prohibit
incentives in exchange for an act for which the inducer would earn additional income. For example:
Section 456.054, F.S., prohibits a healthcare provider from offering a kickback to anyone in
exchange for patient referrals;
Section 468.456(1)(f), F.S., prohibits an athlete agent from offering anything of value to a
student athlete to induce the athlete to enter into an agreement for representation;
Section 626.854(7)(a)2., F.S., prohibits a public adjuster from inducing an insured to submit an
insurance claim; and
Section 626.9541, F.S., prohibits an insurance agent from offering inducements in many
situations, including offering a rebate to induce a customer to enter into an insurance contract,
or offering a reduced fee for providing title insurance.
Effect of the Bill – Incentives for Motor Vehicle Glass Insurance Claims
The bill provides that a motor vehicle repair shop may not offer a customer a rebate, gift, gift card, cash,
coupon, or other thing of value in exchange for making an insurance claim for motor vehicle glass
replacement or repair, including related services. The bill prohibits an employee of a m otor vehicle
repair shop or a nonemployee, who is compensated by a motor vehicle repair shop for the solicitation of
claims, from offering such an inducement.
Advanced Driver Assistance Systems (ADAS)
ADAS include automatic emergency braking, lane and highway assistance features, and driver
monitoring.11 They make roadways safer and help save lives by using radar, lidar, cameras, computer
imaging, sensors, networking, and other features.12 While repair or replacement of motor vehicle glass
often includes calibration or recalibration of ADAS, the Repair Act does not currently include a definition
of ADAS.
Effect of the Bill – ADAS
The bill establishes that it is a violation of law for a motor vehicle repair shop, or an employee of such
shop, to fail to provide electronic or written notice to a customer whether the calibration or recalibration
of an ADAS is required as part of the replacement or repair of motor vehicle glass to make the ADAS
operable and ensure that the service meets or exceeds the specifications of the vehicle manufacturer.
The bill defines ADAS for its use in the Repair Act. According to the bill, ADAS means any motor
vehicle electronic safety system associated with motor vehicle glass and designed to support the driver
and motor vehicle in a manner intended to:
Increase motor vehicle safety; and
Reduce losses associated with motor vehicle crashes.
Additionally, the bill expands the definition of “motor vehicle repair” to include ADAS calibration or
recalibration.
10 Data retrieved from Department of Financial Services Service of Process Reports application,
https://apps.fldfs.com/LSOPReports/Reports/Report.aspx (last visited Feb. 7, 2019).
11 ARM, Advanced Driver Assistance Systems,
https://www.arm.com/markets/automotive/adas?utm_source= google& utm_medium=cpc&utm_content=solutions&utm_ca
mpaign=2022_automotive_mk 12_adas&utm_term=adas %20system&gclid=Cj0K CQiA6rCgBhDVARIsAK1kGPL3OcDDtlD
90i-oBymynl453g40Y5iNZmFyjRc QmdqeFYag_tACRlYaA oPSEALw_wcB (last visited Mar. 11, 2023).
12 Florida Department of Financial Services, Agency Analysis of 2023 Senate Bill 1002, p. 1 (Feb. 27, 2023) (Senate Bi ll
1002 is the companion bill to PCS for HB 541).
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Windshield Deductibles
A “deductible” is the amount an insured must pay before an insurance company will make any payment
on an insurance claim. Pursuant to s. 627.7288, F.S., the deductible provisions of a motor vehicle
insurance policy “delivered or issued” in Florida and providing “comprehensive coverage or combined
additional coverage shall not be applicable to the damage to the windshield of any motor vehicle
covered under such policy.”13 Therefore, a consumer who owes money on a motor vehicle often
qualifies for motor vehicle glass repair or replacement without paying a deductible out of pocket. 14
Effect of the Bill – Windshield Deductibles
The bill allows an insurer, when issuing or renewing a policy providing comprehensive coverage or
combined additional coverage, to offer an insured or applicant a deductible of $250 for claims of
damage to the windshield of a motor vehicle. The insured or applicant may decline the offer of the
deductible. The bill also establishes that, if a deductible for comprehensive coverage or combined
additional coverage is applied to a loss that includes other damage in addition to windshield damage,
no windshield damage deductible may apply.
Assignment of Post-loss Motor Vehicle Glass Benefits
Motor Vehicle Glass Replacement and Repair
Florida law has no specific requirements applicable to insurance claims made for damaged motor
vehicle glass.15 Instead, these claims are handled according to the terms of a consumer’s motor vehicle
insurance policy.16 Some Florida motor vehicle insurers have set up a network of motor vehicle glass
repair shops that will provide motor vehicle glass repair or replacement at negotiated rates. 17 If a
consumer utilizes one of these network shops, the consumer’s motor vehicle glass is repaired or
replaced and paid for directly by the insurance company.18 If an insured uses an motor vehicle glass
repair shop that is not within the insurer’s network, the provider often obtains an assignment of benefits
from the consumer.19
An assignment of benefits (AOB) is a binding agreement between an insured and a provider of repair
services that allows a third-party, in this instance a motor vehicle glass repair shop, to “stand in the
shoes” of the insured to obtain the benefits the insured is entitled to under the motor vehicle insurance
contract, including payment of the claim. The glass repair shop to which the insured has assigned
benefits can negotiate directly with, or file a lawsuit in the name of the insured against, the insurer if the
insurer and the glass repair company do not agree on the amount that the insurer will pay for the motor
vehicle glass claim.
13 Combined additional coverage is an obsolete auto physical damage term that still appears in the Florida Insurance
Code. It refers to hazards other than fire or theft. IRMI, combined additional coverage,
https://www.irmi.com/term/insurance-definitions/combined-additional-coverage (last visited Mar. 11, 2023).
14 Department of Financial Services, supra note 6.
15 Dale Parker and Brendan McKay, Florida Auto Glass Claims: A Crack ed System, Trial Advocate Quarterly Fall 2016,
*21 (Westlaw Citation: 35 No. 4 Trial Advoc. Q. 20).
16 Id.
17 Id.
18 See id.
19 See id.
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Motor Vehicle Glass Litigation
According to data provided by the Department of Financial Services, the number of motor vehicle
glass lawsuits has increased significantly in the past decade:20
Year 2011 2012 2021 2022
Number of
Lawsuits 478 1,389 24,080 33,196
Florida law allows the insured or the assignee to obtain attorney fees from the insurer if the insured or
assignee obtains a judgment against an insurer in a lawsuit regarding an motor vehicle insurance
claim.21 However, this operates in one direction. An insurer that prevails in a lawsuit against an insured
or assignee is not permitted to recover attorney fees.22 The purpose is to “discourage contesting of
valid claims of insureds against insurance companies . . . and to reimburse successful insureds
reasonably for their outlays for attorney's fees when they are compelled to defend or to sue to enforce
their contracts. . . .”23
Some insurers have asserted that the increase in litigation is the result of the practice by some motor
vehicle glass repair shops to execute AOBs, sue for unpaid claims, and collect attorney fees under s.
627.428, F.S.24 They have also alleged that some motor vehicle glass repair shops obtain AOBs from
the insured and inflate the costs of the motor vehicle glass repair or replacement when billing insurance
companies.25 Insurers also believe that some motor vehicle glass claims submitted by assignees are
fraudulent.26 If they believe claims are fraudulent or inflated, insurers are left with a choice between
paying those claims or paying attorneys to litigate cases that may result in payment of attorney’s fees to
assignees if the insurers do not prevail regardless of the amount of increased benefit payment
awarded.
Some motor vehicle glass repair shops have argued that litigation is necessary because motor vehicle
insurers have entered into agreements with preferred vendors (i.e., the network shops) and the insurers
will not pay the “prevailing competitive price” for motor vehicle glass repair or replacement. 27 These
repair shops contend that the insurers will only pay them the price that they pay to their preferred
vendors and that they must litigate against the insurers to force them to pay the “prevailing competitive
price” provided for by insurance policies.28
Effect of the Bill – Assignment of Post-loss Motor Vehicle Glass Benefits
20 Data provided by the Department of Financial Services to the Senate Committee on Banking and Insurance on January
22, 2019 (Senate Meeting Packet), http://flsenate.gov/PublishedContent/ Committees/2018 -
2020/BI/MeetingRecords/MeetingPacket_4350.pdf (last visited Mar. 11, 2023) and data provided in Florida Department of
Financial Services, Agency Analysis of 2023 Senate Bill 1002, p. 1 (Feb. 27, 2023) (Senate Bill 1002 is the companion bill
to PCS for HB 541).
21 S. 627.428, F.S.; The Florida Supreme Court has recognized the right of assignees to obtain attorney fees under s.
627.428, F.S., (and its predecessor statute) since at least 1972. See All Ways Reliable Building Maintenance, Inc. v.
Moore, 261 So. 2d 131 (Fla. 1972). The First District Court of Appeal has recognized the right since at least 1961. See
Travelers Insurance Co. v. Tallahassee Bank and Trust Co., 133 So. 2d 463 (Fla. 1st DCA 1961). However, in
December 2022, the Legislature prohibited the use of AOBs for property insurance claims, and the recovery of attorney
fees for litigation regarding property insurance claims.
22 In certain circumstances, insurers can recovery attorney fees by using offers of judgment and proposals for settlement.
See s. 768.79, F.S., and Fla. R. Civ. P. 1.442.
23 Wilder v. Wright, 269 So. 2d 434, 436 (Fla. 2d DCA 1972).
24 See Park er and McKay, supra note 10.
25 Id.
26 See, e.g., Government Employees Insurance Co. v. Clear Vision Windshield Repair, L.L.C., 2017 WL 1196438 (M.D.
Fla. Mar. 29, 2017).
27 VIP Auto Glass, Inc. v. Geico General Insurance Co., 2017 WL 3712918, *1 (M.D. Fla. Mar. 17, 2017).
28 Id.
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The bill prohibits a policyholder, or another person, from signing an AOB for motor vehicle glass
replacement or repair, including, but not limited to, calibration or recalibration of an ADAS, under an
motor vehicle insurance policy issued or renewed on or after July 1, 2023. The bill also provides a
definition of an AOB for motor vehicle glass replacement or repair, which includes inspecting,
protecting, repairing, restoring, or replacing the glass, or calibrating or recalibrating an ADAS.
B. SECTION DIRECTORY:
Section 1. Amends s. 559.903, F.S, relating to definitions.
Section 2. Amends s. 559.920, F.S., relating to unlawful acts and practices.
Section 3. Amends s. 627.7288, F.S., relating to comprehensive coverage; deductible not to apply to
motor vehicle glass.
Section 4. Creates s. 627.7289, F.S., relating to assignment of post-loss motor vehicle glass benefits
prohibited.
Section 5. Provides an effective date of July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Indeterminate. Motor vehicle repair shops may claim their business is negatively affected by the
inability to provide incentives to consumers. However, given the number motor vehicle glass lawsuits
over the past several years, and the reports of individuals receiving incentives to submit motor vehicle
glass claims to their motor vehicle insurers, it is possible that eliminating incentives provided by motor
vehicle repair shops for these claims would reduce the number of disputed motor vehicle glass claims,
and thereby reduce the number of motor vehicle glass lawsuits. Additionally, the elimination of AOBs
for motor vehicle glass claims, will likely reduce the number of motor vehicle glass lawsuits.
The reduction in the number of motor vehicle glass lawsuits may have a positive impact on motor
vehicle insurance premiums, particularly the portion of the rate that pertains to comprehensive
coverage. Policyholders’ election of deductibles for windshield glass may also reduce their motor
vehicle insurance premiums.
D. FISCAL COMMENTS:
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DATE: 4/6/2023
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
Not applicable.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 14, 2023, the Insurance & Banking Subcommittee considered a proposed committee substitute
for the bill, and reported the bill favorably as a committee substitute. The proposed committee substitute
made the following changes to the bill:
Provides that a motor vehicle repair shop may not offer a customer a rebate, gift, gift card, cash,
coupon, or other thing of value in exchange for making an insurance claim for motor vehicle glass
replacement or repair, including calibration or recalibration of an ADAS.
Prohibits an employee of a motor vehicle repair shop or a nonemployee, who is compensated by a
motor vehicle repair shop for the solicitation of claims, from offering such an inducement.
Establishes that it is a violation of law for a motor vehicle repair shop, or an employee of such shop,
to fail to provide electronic or written notice to a customer whether the calibration or recalibration of
an ADAS is required as part of the replacement or repair of motor vehicle glass to make the ADAS
operable and ensure that the service meets or exceeds the specifications of the vehicle
manufacturer.
Defines ADAS for its use in the Repair Act. According to the bill, ADAS means any motor vehicle
electronic safety system associated with motor vehicle glass and designed to support the driver and
motor vehicle in a manner intended to:
o Increase motor vehicle safety; and
o Reduce losses associated with motor vehicle crashes.
Allows an insurer, when issuing or renewing a policy providing comprehensive coverage or
combined additional coverage, to offer an insured or applicant a deductible of $250 for claims of
damage to the windshield of a motor vehicle. The insured or applicant may decline the offer of the
deductible.
Establishes that, if a deductible for comprehensive coverage or combined additional coverage is
applied to a loss that includes other damage in addition to windshield damage, no windshield
damage deductible may apply.
Clarifies the definition of an AOB for a motor vehicle glass claim to include calibrating or
recalibrating an ADAS.
Applies the prohibition on AOBs only to motor vehicle glass claims, rather than motor vehicle
insurance, generally.
The analysis is drafted to the committee substitute as passed by the Insurance & Banking Subcommittee.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 541 2023
1 A bill to be entitled
2 An act relating to motor vehicle glass; amending s.
3 559.903, F.S.; defining the term "advanced driver
4 assistance system"; revising the definition of the
5 term "motor vehicle repair"; amending s. 559.920,
6 F.S.; prohibiting motor vehicle repair shops or their
7 employees from offering anything of value to a
8 customer in exchange for making an insurance claim for
9 motor vehicle glass replacement or repair, including
10 offers made through certain persons; specifying that
11 the failure to provide certain electronic or written
12 notice relating to calibrating or recalibrating an
13 advanced driver assistance system is unlawful;
14 amending s. 627.7288, F.S.; authorizing an optional
15 deductible for windshield; specifying deductible
16 amount; limiting deductible application; creating s.
17 627.7289, F.S.; prohibiting persons from entering into
18 assignment agreements of post-loss benefits for motor
19 vehicle glass replacement or repair on or after a
20 specified date; providing that such assignment
21 agreements are void and unenforceable; defining the
22 term "assignment agreement"; providing an effective
23 date.
24
25 Be It Enacted by the Legislature of the State of Florida:
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26
27 Section 1. Present subsections (1) through (5), (6), and
28 (7) of section 559.903, Florida Statutes, are redesignated as
29 subsections (2) through (6), (8), and (9), respectively, a new
30 subsection (1) is added to that section, and present subsection
31 (8) of that section is amended, to read:
32 559.903 Definitions.—As used in this act:
33 (1) "Advanced driver assistance system" means any motor
34 vehicle electronic safety system that is associated with motor
35 vehicle glass and is designed to support the driver and motor
36 vehicle in a manner intended to increase motor vehicle safety
37 and reduce losses associated with motor vehicle crashes.
38 (7)(8) "Motor vehicle repair" means all maintenance of and
39 modifications and repairs to motor vehicles, and diagnostic work
40 incident thereto, including, but not limited to, the rebuilding
41 or restoring of rebuilt vehicles, body work, painting, warranty
42 work, calibration or recalibration of advanced driver assistance
43 systems, and other work customarily undertaken by motor vehicle
44 repair shops.
45 Section 2. Section 559.920, Florida Statutes, is amended
46 to read:
47 559.920 Unlawful acts and practices.—It is shall be a
48 violation of this act for any motor vehicle repair shop or
49 employee thereof to do any of the following:
50 (1) Engage or attempt to engage in repair work for
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51 compensation of any type without first being registered with or
52 having submitted an affidavit of exemption to the department .;
53 (2) Make or charge for repairs that which have not been
54 expressly or impliedly authorized by the customer.;
55 (3) Misrepresent that repairs have been made to a motor
56 vehicle.;
57 (4) Misrepresent that certain parts and repairs are
58 necessary to repair a vehicle.;
59 (5) Misrepresent that the vehicle being inspected or
60 diagnosed is in a dangerous condition or that the customer's
61 continued use of the vehicle may be harmful or cause great
62 damage to the vehicle.;
63 (6) Fraudulently alter any customer contract, estimate,
64 invoice, or other document.;
65 (7) Fraudulently misuse any customer's credit card .;
66 (8) Make or authorize in any manner or by any means
67 whatever any written or oral statement that which is untrue,
68 deceptive, or misleading, and that which is known, or that which
69 by the exercise of reasonable care should be known, to be
70 untrue, deceptive, or misleading.;
71 (9) Make false promises of a character likely to
72 influence, persuade, or induce a customer to authorize the
73 repair, service, or maintenance of a motor vehicle.;
74 (10) Substitute used, rebuilt, salvaged, or straightened
75 parts for new replacement parts without notice to the motor
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76 vehicle owner and to her or his insurer if the cost of repair is
77 to be paid pursuant to an insurance policy and the identity of
78 the insurer or its claims adjuster is disclosed to the motor
79 vehicle repair shop.;
80 (11) Cause or allow a customer to sign any work order that
81 does not state the repairs requested by the customer or the
82 automobile's odometer reading at the time of repair .;
83 (12) Fail or refuse to give to a customer a copy of any
84 document requiring the customer's signature upon completion or
85 cancellation of the repair work.;
86 (13) Willfully depart from or disregard accepted practices
87 and professional standards.;
88 (14) Have repair work subcontracted without the knowledge
89 or consent of the customer unless the motor vehicle repair shop
90 or employee thereof demonstrates that the customer could not
91 reasonably have been notified.;
92 (15) Conduct the business of motor vehicle repair in a
93 location other than that stated on the registration
94 certificate.;
95 (16) Rebuild or restore a rebuilt vehicle without the
96 knowledge of the owner in such a manner that it does not conform
97 to the original vehicle manufacturer's established repair
98 procedures or specifications and allowable tolerances for the
99 particular model and year.; or
100 (17) Offer to a customer a rebate, gift, gift card, cash,
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101 coupon, or any other thing of value in exchange for making an
102 insurance claim for motor vehicle glass replacement or repair,
103 including, but not limited to, calibration or recalibration of
104 an advanced driver assistance system. A nonemployee who is
105 compensated for the solicitation of insurance claims is also
106 prohibited from making such offer.
107 (18) Fail to provide electronic notice or written notice
108 in at least 12-point type to the customer whether the
109 calibration or recalibration of the advanced driver assistance
110 system is required as part of the replacement or repair of motor
111 vehicle glass to make such system operable and to ensure such
112 service is performed in a manner that meets or exceed s the
113 vehicle manufacturer's specifications.
114 (20) Perform any other act that is a violation of this
115 part or that constitutes fraud or misrepresentation.
116 (19)(18) Violate any provision of s. 713.585.
117 Section 3. Section 627.7288, Florida Statutes, is amended
118 to read:
119 627.7288 Comprehensive coverage; deductible not to apply
120 to motor vehicle windshield; exceptions glass.—
121 (1) Except as otherwise provided in this section, the
122 deductible provisions of any policy of motor vehicle insurance,
123 delivered or issued in this state by an authorized insurer,
124 providing comprehensive coverage or combined additional coverage
125 shall not be applicable to damage to the windshield of any motor
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126 vehicle covered under such policy.
127 (2) An insurer may offer to an applicant or insured, upon
128 the issuance or renewal of a policy providing comprehensive
129 coverage or combined additional coverage, a deductible of $250
130 for claims of damage to the windshield of any motor vehicle
131 covered under such policy. The applicant or insured may decline
132 the offer of a deductible.
133 (3) If a deductible for comprehensive coverage or combined
134 additional coverage is applied to a loss that includes damage in
135 addition to windshield damage, the windshield deductible under
136 this section may not apply.
137 Section 4. Section 627.7289, Florida Statutes, is created
138 to read:
139 627.7289 Assignment of post-loss motor vehicle glass
140 benefits prohibited.—
141 (1) A policyholder or any other person may not enter into
142 an assignment agreement of post-loss benefits for motor vehicle
143 glass replacement or repair, including, but not limited to, for
144 calibration or recalibration of advanced driver assistance
145 systems as defined in s. 559.903, under a policy of motor
146 vehicle insurance issued or renewed in this state by an
147 authorized insurer on or after July 1, 2023. Any such assignment
148 agreement entered into in violation of this subsection is void
149 and unenforceable.
150 (2) As used in this section, the term "assignment
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151 agreement" means any instrument, regardless of how such
152 agreement is named or styled, by which post-loss benefits,
153 including, but not limited to, claim payments, under a motor
154 vehicle insurance policy are, in whole or in part, assigned or
155 transferred to, or acquired in any manner by, a person providing
156 services for motor vehicle glass replacement or repair,
157 including, but not limited to, inspecting, protecting,
158 repairing, restoring, or replacing the motor vehicle glass or
159 calibrating or recalibrating advanced driver assistance systems.
160 Section 5. This act shall take effect July 1, 2023.
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COMMERCE COMMITTEE
CS/HB 541 by Rep. Griffitts
Relating to Motor Vehicle Glass
AMENDMENT SUMMARY
April 10, 2023
Amendment 1 by Rep. Griffitts (Line 159): The amendment:
• Prohibits the steering of motor vehicle windshield glass repair claims.
• Requires insurers, agents, and adjusters to provide at least two names of motor vehicle
glass shops to claimants, if they provide any names.
• Permits the explanation of a claimant’s motor vehicle comprehensive coverage benefits
to the claimant.
• Requires insurers to offer discounts if a policy contains a managed repair arrangement.
• Specifies that the bill does not create a private cause of action.
• Applies only to personal lines motor vehicle insurance policies.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 541 (2023)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/O OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Commerce Committee
2 Representative Griffitts offered the following:
3
4 Amendment (with title amendment)
5 Between lines 159 and 160, insert:
6 Section 5. Section 627.7290, Florida Statutes, is created
7 to read:
8 Section 627.7290 Motor vehicle windshield claims and
9 practices; steering prohibited; exceptions.—
10 (1) No person, including an insurer, agent, adjuster, or
11 any person or entity acting on the insurer’s, agent’s, or
12 adjuster's behalf, may require a claimant to use a particular
13 company or location for the provision of motor vehicle
14 windshield glass replacement, repair, or calibration services or
15 windshield glass products which are subject to a claim for
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Page 1 of 3
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 541 (2023)
Amendment No. 1
16 replacement, repair, or calibration, in whole or in part, under
17 the terms of a personal lines automobile insurance policy.
18 (2) An insurer, agent, adjuster, or any person or entity
19 acting on the insurer’s, agent’s, or adjuster's behalf:
20 (a) Must provide a claimant with two or more names of
21 motor vehicle windshield repair shops, if it chooses to provide
22 names of such repair shops.
23 (b) May provide an explanation of motor vehicle
24 comprehensive coverage benefits and any applicable limit of
25 liability to a claimant.
26 (3) An insurer, or any person or entity acting on the
27 insurer’s behalf must provide an actuarially sound discount to
28 the insured if they offer, and an insured accepts, a policy that
29 contains a managed repair arrangement for the provision of
30 windshield glass replacement, repair, or calibration services or
31 windshield glass products.
32 (4) Nothing in this section shall be construed to create a
33 private cause of action.
34
35 This section applies to motor vehicle windshield glass claims
36 under the comprehensive or combined additional coverage
37 provisions of a personal lines motor vehicle insurance policy.
38
39
40 -----------------------------------------------------
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Page 2 of 3
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 541 (2023)
Amendment No. 1
41 T I T L E A M E N D M E N T
42 Remove line 22 and insert:
43 term "assignment agreement"; creates s. 627.7290, F.S.;
44 prohibiting insurers, agents, and adjusters from requiring a
45 claimant to use a specific motor vehicle repair shop for
46 windshield glass replacement; requiring insurance premium
47 discount under certain circumstances; requiring insurers to
48 provide claimants with certain information; prohibiting a
49 private cause of action; providing for application of statutory
50 provisions; providing an effective
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Page 3 of 3
HB 599
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 599 Debt Management Services
SPONSOR(S): Garcia
TIED BILLS: IDEN./SIM. BILLS: SB 628
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Insurance & Banking Subcommittee 16 Y, 0 N Fletcher Lloyd
2) Commerce Committee Fletcher Hamon
SUMMARY ANALYSIS
Debt management services laws regulate the fees credit counseling organizations may charge debtors for debt
management services and credit counseling services. Debt management services include effectuating an
adjustment, compromise, or discharge of indebtedness, and advising debtors on debt reduction and general
money management practices.
There are two types of organization that provide debt management services: non-profit, 501(c)(3) credit
counseling agencies and debt settlement companies, typically for-profit organizations. Nonprofit credit
counseling agencies work with debtors’ creditors, educate debtors about credit practices, and enroll qualifying
debtors in debt management plans tailored to their specific situation and budget.
The Legislature created laws in 2004 limiting the amount and types of fees credit counseling agencies may
charge debtors for debt management services. Since 2004, however, Florida’s limitation on fees for debt
management services has not been increased.
The bill revises the fee chargeable to a debtor for receiving from the debtor, and subsequently disbursing to a
creditor, money or anything of value from greater of 7.5 percent of the monthly payment or $35 monthly to the
lesser of 15 percent of the monthly payment or $75 monthly.
This bill will not have a fiscal impact on state and local governments but will have both positive and negative
fiscal impacts on the private sector.
The bill provides an effective date of July 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h0599c.COM
DATE: 4/6/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Credit Counseling Organizations
Debtors seeking to manage and reduce their debts often engage credit counseling organizations
who provide debt management services and credit counseling services.1 Non-profit credit
counseling agencies assist debtors with managing and reducing their debt by offering free
counseling on credit practices, enrolling qualifying debtors in debt management plans, and
providing community education to individuals and families on money management skills. 2
Floridians are among the many individuals who could benefit from non-profit credit counseling
organizations. According to Experian, the average Floridian carried $84,926 in debt in 2021. 3 The
majority consisted of mortgages which averaged $208,536. 4 Credit card debt, student loans, and
auto loans accounted for the other main sources, with a state average of $5,620, $40,866, and
$10,110, respectively.5 In 2022, the average Floridian carried $89,195 in debt, a 5% increase
from 2021.6
Debt Management Services
Debt management services is defined by Florida statute as services provided for a fee to “effect the
adjustment, compromise, or discharge of any unsecured note, account, or other indebtedness of the
debtor; or receive from the debtor and disburse to a creditor any money or other item of value.” 7
Credit counseling agencies and creditors classify individuals who find it particularly difficult to manage their
debt, whether due to their health or specific situation, as “vulnerable.”8 If an agency or creditor is aware an
individual is vulnerable, taking extra measures to ensure the individual receives the same services as
others, while not being placed at a disadvantage because of their unique situation, is imperative.9
Florida’s Limitations on Fees for Debt Management Services
In 2004, the Legislature recognized the importance of easy access to debt management services, while
also acknowledging the vulnerability of debtors, by prescribing the maximum fees a person or entity could
charge a debtor for debt management services.10
1 Consumer Financial Protection Bureau, What is credit counseling?, https://www.consumerfinance.gov/ask-cfpb/what -
iscredit-counseling-en-1451/ (last visited Mar. 10, 2023)
2 Financial Counseling Association of America, https://fcaa.org/ (last visited Mar. 10, 2023)
3 Experian, Average Consumer Debt Levels Increase in 2022,
https://www.experian.com/blogs/askexperian/researc h/consumer-debt-study/ (last visited Mar. 7, 2023).
4 Id.
5 Id.
6 Id.
7 S. 817.801(4), F.S.
8 Step Change: Debt Charity, Dealing with the debts of a vulnerable person, https://www.stepchange.org/debtinfo/dealing -
with-the-debts-of-vulnerable-people.aspx (last visited Mar. 10, 2023).
9 Id.
10 Chapter 2004-351, Laws of Florida, created s. 817.802, F.S.
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Specifically, the 2004 legislation made it unlawful for any entity or individual engaging in debt
management services or credit counseling services, to charge a debtor:
a fee greater than $50 for an initial consultation;11 and
a fee greater than $120 per year for additional consultations or, alternatively, in the case of
receiving debt payments from the debtor and disbursing to a creditor any money or other item of
value, the greater of 7.5% of the amount paid monthly by the debtor or $35 per month. 12
No state agency directly regulates credit counseling organizations. Regulation is self-executing by means
of private civil actions under part II of ch. 501, including possible action by the Attorney General or local
prosecutors.13 Any person in violation of the debt services statute “commits an unfair or deceptive trade
practice.”14 A violation results in criminal and civil penalties. Namely, a violation is a third-degree felony,
and an individual injured by a violation can bring an action for damages, where judgement is entered for
actual damages no less than the amount paid by the aggrieved individual to the credit counseling
organization.15
Although a 2006 amendment narrowed the scope of debtors protected to those debtors specifically residing
in the State of Florida,16 the limitation on fees for debt management services has not been increased since
its enactment in 2004.
Effect of the Bill
The bill changes the fee a person or entity may charge for the debt management services described in s.
817.802(4)(b) (namely, receiving from the debtor and disbursing to a creditor any money or item of value)
to the lesser of 15 percent of the amount paid monthly by the debtor or $75 per month, rather than the
greater of 7.5 percent of the amount paid or $35 per month. The following table illustrates the current and
proposed fees.
Current HB 599
Greater of Lesser of
Monthly Monthly Result of
Monthly 7.5% of 15% of
$35 Fee $75 Fee Current vs.
Payment monthly monthly
Allowed Allowed HB 599
$100 $ 7.50 $ 35.00 $ 35.00 $ 15.00 $ 75.00 $ 15.00 Reduction
$500 $ 37.50 $ 35.00 $ 37.50 $ 75.00 $ 75.00 $ 75.00 Increase
$1,000 $ 75.00 $ 35.00 $ 75.00 $ 150.00 $ 75.00 $ 75.00 No Change
$1,500 $ 112.50 $ 35.00 $ 112.50 $ 225.00 $ 75.00 $ 75.00 Reduction
B. SECTION DIRECTORY:
Section 1. Amends s. 817.802(1), F.S., relating to unlawful fees and costs.
Section 2. Provides an effective date of July 1, 2023.
11 S. 817/802(1), F.S.
12 Id.
13 Ch. 501, part II, F.S., relating to the protection of consumers from unfair trade practices, and remedies for violations
thereof, similar to federal policies relating to consumer protection.
14 S. 817.806, F.S.
15 S. 17.806, F.S.
16 Chapter 2006-136, Laws of Florida, amended s. 817.802, F.S.
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II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Credit counseling organizations and debtors residing in Florida would experience fiscal impact
from this bill. Specifically, the change in fees to the greater of 15% of the amount paid monthly
by the debtor and $75 would likely result in an increase in some revenue for credit counseling
organizations. On the other hand, the increase in the maximum chargeable amount might have
a negative, possibly significant, fiscal impact on debtors residing in Florida. 17 Please see
Section III.C., Drafting Issues or Other Comments, below.
D. FISCAL COMMENTS:
The bill would increase some revenues for credit counseling organizations, but the bill would have a
negative fiscal impact on debtors residing in Florida.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY
This bill does not appear to amend or create rulemaking authority.
17 Florida Office of Financial Regulations, Agency Analysis of 2023 House Bill 599, p. 3 (Mar. 3, 2023).
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C. DRAFTING ISSUES OR OTHER COMMENTS:
Current law and the bill provide for a specified monthly fee allowed to debt management
services providers. However, correspondence received from Cambridge Credit indicates that
they charge less than the allowed fee. If the bill were to provide for a fee “up to” the lesser of
15 percent of the monthly amount or $75, then the debt management service providers would
be specifically authorized to charge less than a maximum allowed fee. The providers would
then have the option to operate within a range of allowed monthly fees, subject to a statutory
cap.18 This could also mitigate the possible direct fiscal impacts on the private sector (i.e.,
debtors receiving debt management services). An amendment is expected to address this issue.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
18 Email from Martin Lynch, President, Cambridge Credit, Re: HB 599, regarding fee practices (Mar. 10, 2023)
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 599 2023
1 A bill to be entitled
2 An act relating to debt management services; amending
3 s. 817.802, F.S.; increasing the maximum fee that may
4 be charged for debt management services; providing an
5 effective date.
6
7 Be It Enacted by the Legislature of the State of Florida:
8
9 Section 1. Subsection (1) of section 817.802, Florida
10 Statutes, is amended to read:
11 817.802 Unlawful fees and costs.—
12 (1) It is unlawful for any person, while engaging in debt
13 management services or credit counseling services, to charge or
14 accept from a debtor residing in this state, directly or
15 indirectly, a fee or contribution greater than $50 for the
16 initial setup or initial consultation. Subsequently, the person
17 may not charge or accept a fee or contribution from a debtor
18 residing in this state greater than $120 per year for additional
19 consultations or, alternatively, if debt management services as
20 defined in s. 817.801(4)(b) are provided, the person may charge
21 the lesser greater of 15 7.5 percent of the amount paid monthly
22 by the debtor to the person or $75 $35 per month.
23 Section 2. This act shall take effect July 1, 2023.
Page 1 of 1
CODING: Words stricken are deletions; words underlined are additions.
hb0599-00
COMMERCE COMMITTEE
HB 599 by Rep. Garcia
Relating to Debt Management Services
AMENDMENT SUMMARY
April 7, 2023
Amendment 1 by Rep. Garcia (Line 21): The amendment authorizes debt management
service providers to charge less than a maximum allowed fee.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 599 (2023)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/O OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Commerce Committee
2 Representative Garcia offered the following:
3
4 Amendment
5 Remove line 21 and insert:
6 up to the lesser greater of 15 7.5 percent of the amount paid
7 monthly
328599 - h0599-line 21.docx
Published On: 4/7/2023 7:16:47 PM
Page 1 of 1
HB 607
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 607 Money Services Businesses
SPONSOR(S): Steele
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Insurance & Banking Subcommittee 18 Y, 0 N Sellas Lloyd
2) State Administration & Technology 14 Y, 0 N Perez Topp
Appropriations Subcommittee
3) Commerce Committee Sellas Hamon
SUMMARY ANALYSIS
The Office of Financial Regulation (OFR) licenses and regulates various aspects of the non -depository financial
services industries, including money services businesses (MSBs) regulated under ch. 560, F.S. MSB applicants
must submit fingerprints to the Florida Department of Law Enforcement (FDLE) for a state criminal history
background check, and the fingerprints must be submitted to the Federal Bureau of Investigation (FBI) for a federal
criminal history background check. OFR must review the results of the state and federal criminal history background
checks and determine whether the applicant meets licensure requirements.
Access to the FBI’s criminal history record information (CHRI) system is authorized for fingerprints pursuant to
current law. However, in order to gain access to CHRI data for applicants to the recently created Financial
Technology Sandbox, FDLE sent correspondence to the FBI to obtain a new non-criminal justice Originating Agency
Identifier (ORI). ORI validates legal authorization to obtain criminal justice information and identifies the specific
agency requesting the information. The Financial Technology Sandbox derived its CHRI access from the preexisting
Money Services Businesses law, which as of 2021, authorized the Office to request fingerprints of each officer,
director, responsible person, the compliance officer, each controlling shareholder, and any other person who has a
controlling interest in an MSB.
FBI responded to the Financial Technology Sandbox ORI request by stating that the MSB licensing statute does not
qualify for access to CHRI data because the terms “responsible person” and “control of a money services business”,
as used in that statute to specify persons who are required to submit fingerprints, are overly broad and, thus, do not
sufficiently define the categories of people subject to the background check. To address this issue the Florida
Legislature passed Chapter 2022-135, Laws of Florida, which created the term “control person” to replace the use of
“officer” and “responsible person,” as well as various other terms. However, this new “control person” term was still
too broad for FBI approval, and thus OFR still lacks the ORI approval.
FBI acknowledged that MSB fingerprinting was previously approved, and that the FBI will continue to honor
fingerprints submitted for MSB licensure. However, FBI has placed MSB fingerprinting on a grace period of
unspecified length in order to allow Florida to amend MSB fingerprinting statutes such that the statutes specific ally
identify the categories of licensees or employees falling within the purview of the statutes; FBI will not allow
fingerprinting of additional categories of applicants (i.e., those applying under the Financial Technology Sandbox)
during this grace period.
The bill revises the term “control person” to create a more definite list of individuals who are subject to required
fingerprinting to better meet the requirements of federal law while also ensuring appropriate consumer protection.
The bill has no fiscal impact on the state, local governments, or the private sector.
The bill has an effective date of July 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
The Office of Financial Regulation (OFR) regulates banks, credit unions, other financial institutions,
finance companies, and the securities industry.1 The Division of Consumer Finance within OFR
licenses and regulates various aspects of the non-depository financial services industries, including
money services businesses (MSBs) regulated under ch. 560, F.S.
An MSB is any person located in or doing business in this state, from this state, or into this state from
locations outside this state or country who acts as the following: 2
Payment instrument seller: A payment instrument seller sells, issues, provides, or delivers
payment instruments.3
Foreign currency exchanger: A foreign currency exchanger exchanges, for compensation,
currency4 of the United States or a foreign government to currency of another government.5
Check casher: A check casher sells, issues, provides, or delivers currency6 in exchange for
payment instruments 7 received, except travelers checks.8
Money transmitter: A money transmitter receives currency,9 monetary value,10 or payment
instruments 11 for the purpose of transmitting the same by any means, including transmission by
wire, facsimile, electronic transfer, courier, the Internet, or through bill payment services or other
businesses that facilitate such transfer within this country, or to or from this country.12
An MSB may engage in deferred presentment transactions, commonly known as “payday loans”, by
filing a declaration of intent to engage in deferred presentment transactions with OFR. 13 A money
transmitter or payment instrument seller may engage in the activities authorized for check cashers and
foreign currency exchangers without paying additional licensing fees. 14 State and federally chartered
depository institutions, such as banks and credit unions, are exempt from licensure as an MSB. 15
1 S. 20.121(3)(a)2., F.S.
2 S. 560.103(23), F.S.
3 S. 560.103(30) and (34), F.S. The term “payment instrument” means a check, draft, warrant, money order, travelers
check, electronic instrument, or other instrument, payment of money, or monetary value whether or not negotiable. The
term does not include an instrument that is redeemable by the issuer in merchandise or service, a credit card voucher, or
a letter of credit. S. 560.103(29), F.S.
4 The term “currency” means the coin and paper money of the United States or of any other country which is designated
as legal tender and which circulates and is customarily used and accepted as a medium of exchange in the country of
issuance. Currency includes United States silver certificates, United States notes, and F ederal Reserve notes. Currency
also includes official foreign bank notes that are customarily used and accepted as a medium of exchange in a foreign
country. S. 560.103(12), F.S.
5 S. 560.103(18), F.S.
6 Definition of “currency”, supra note 4.
7 Definition of “payment instrument”, supra note 3.
8 S. 560.103(6) and (34), F.S.
9 Definition of “currency”, supra note 4.
10 The term “monetary value” means a medium of exchange, whether or not redeemable in currency. S. 560.103(2 2), F.S.
11 Definition of “payment instrument”, supra note 3.
12 S. 560.103(24), F.S.
13 S. 560.403, F.S.
14 S. 560.204(2), F.S.
15 S. 560.104, F.S.
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An applicant for an MSB license must submit the following to OFR:
An application;16
A nonrefundable application fee;17
A copy of the applicant’s written anti-money laundering program required by federal law;18 and
Fingerprints for the following individuals:19
o A person who holds the title of president, chief executive officer, chief financial officer,
chief operations officer, chief legal officer, or compliance officer for a money services
business.20
o A person who holds any of the officer positions named in the money services business’s
governing documents.21
o A person who holds any position named by the money services business’s liability
insurance coverage for directors and officers, if the business has such coverage. 22
o A director of the money services business’s board of directors.23
o A person who directs the affairs of a money services business or who participates in, or
has authority to participate in, the major policy making functions of a money services
business, regardless of whether the person has an official title or receives a salary or
other compensation.24
o For a money services business that is a corporation, all shareholders that, directly or
indirectly, own 25 percent or more or that have the power to vote 25 percent or more of
a class of voting securities.25
o For a money services business that is a partnership, all general partners, and those
limited or special partners that have contributed 25 percent or more or that have the
right to receive upon dissolution 25 percent or more of the partnership’s capital.26
o For a money services business that is a limited liability company, all managers, and
those members that have contributed 25 percent or more or that have the right to
receive upon dissolution 25 percent or more of the limited liability company’s capital.27
Fingerprints are not required if the applicant is a publicly traded corporation. 28
If fingerprints are required, the fingerprints must be submitted for live-scan processing.29 Live-scan is a
device that electronically takes fingerprints and other information and uploads that information to the
Florida Department of Law Enforcement (FDLE) who, in turn, sends the fingerprints to the Federal
Bureau of Investigation (FBI) for a fingerprint background check.30 The fingerprints may be submitted
through a third-party vendor authorized by FDLE to provide live-scan fingerprinting.31 FDLE must
conduct the state criminal history background check, and a federal criminal history background check
must be conducted through the FBI.32
16 S. 560.141(1)(a), F.S.
17 Ss. 560.141(1)(b) and 560.143, F.S.
18 S. 560.141(d), F.S.
19 Ss. 560.141(c) and 560.127, F.S.
20 S. 560.103(10)(a), F.S.
21 S. 560.103(10)(b), F.S.
22 S. 560.103(10)(c), F.S.
23 S. 560.103(10)(d), F.S.
24 S. 560.103(10)(e), F.S.
25 S. 560.103(10)(f), F.S.
26 S. 560.103(10)(g), F.S
27 S. 560.103(10)(h), F.S
28 S. 560.141(1)(c)6., F.S.
29 S. 560.141(1)(c), F.S.
30 Florida Live Scan,
https://livescanflorida.com/#:~:text=LiveScan%20is%20a% 20device%20t hat,for% 20a%20fingerprint%20background%20c
heck. (last visited Feb. 27, 2023).
31 S. 560.141(1)(c)1., F.S.
32 S. 560.141(1)(c)2., F.S.
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The costs of fingerprint processing, including the cost of retaining the fingerprints, must be borne by the
person subject to the background check.33 OFR must review the results of the state and federal
criminal history background checks and determine whether the applicant meets licensure
requirements.34
An MSB license must be renewed every two years.35
Once licensed, an MSB is required to report any change in control persons.36 If any person, directly or
indirectly or acting by or through one or more persons, proposes to purchase or acquire a controlling
interest in an MSB, such person or group must submit a new application for licensure at least 30 days
before such purchase or acquisition.37 Such a change of control application is not required where the
person or group of persons has previously complied with applicable licensing provisions, provided that
they are currently affiliated with the MSB, or where the person or group of persons is currently licensed
with OFR as an MSB.38 A change of control application must be accompanied by the payment of an
initial licensing fee39 and a fee per branch or authorized vendor 40, up to a maximum of $20,000.41
As previously mentioned, when fingerprinting is required, the fingerprints must be submitted to FDLE
for a state and federal criminal history background check. The federal background check is conducted
through the FBI’s criminal history record information (CHRI) system. Federal law Pub. L. 92-544
authorizes the exchange of CHRI data with officials of state and local governmental agencies for
licensing and employment purposes.42 One of the primary purposes for enacting Pub. L. 92-544 was to
establish a national policy with adequate sanctions and administrative safeguards regarding the
dissemination of the FBI’s CHRI data to state and local governments for non-criminal justice licensing
and employment purposes.43 The FBI, with the assistance of the United States Department of Justice,
has determined the parameters of Pub. L. 92-544.44 The criteria for granting access to the FBI’s CHRI
data are as follows:
The state’s statute requiring fingerprinting must exist as a result of a legislative enactment;
It must require the fingerprinting of applicants who are to be subjected to a national criminal
history background check;
It must, expressly (“submit to the FBI”) or by implication (“submit for a national check”),
authorize the use of FBI records for the screening of applicants;
It must identify the specific category(ies) of licensees/employees falling within its purview,
thereby avoiding over breadth;
It must not be against public policy; and
It may not authorize receipt of the CHRI data by a private entity.
Access to the FBI’s CHRI data is authorized for fingerprints pursuant to ch. 560, F.S. However, in order
to gain access to CHRI data for applicants to the recently created Financial Technology Sandbox under
s. 559.952, F.S., created in the 2020 legislative session, 45 FDLE sent correspondence to the FBI’s
33 S. 560.141(1)(c)4., F.S.
34 S. 560.141(1)(c)5., F.S.
35 Ss. 560.141(2) and 560.142, F.S.
36 S. 560.126(3), F.S.
37 S. 560.126(3)(a), F.S.; r. 69v-560.201(4), F.A.C.
38 S. 560.126(3)(c), F.S.; r. 69v-560.201(6), F.A.C.
39 Fees are determined by whether the MSB is licensed under Part II or Part III of Chapter 560. Initial licensing fees under
Part II licenses require a $375 license application fee per § 560.143(1)(a). Part III licenses require a $188 license
application fee per § 560.143(b).
40 Both the per branch fee and the authorized vendor fee are $38. § 560.143(1)(c); § 560.143(1)(d).
41 Ss. 560.126(3) and 560.143(1), F.S.
42 20 C.F.R. § 20.33.
43 Federal Bureau of Investigation, Testimony of Dennis Lormel Before the House Financial Services Committee (Mar. 06,
2001), https://archives.fbi.gov/archives/news/testimony/fbis-pers pective-on-criminal-history-record-information-checks-on-
individuals-conducting-insuranc e-business (last visited Feb. 27, 2023).
44 Email from Heather R. Postlethwait, FBI Office of the General Counsel, to Nathan Pate, Florida Department of Law
Enforcement, RE: ORI Request - Florida Office of Financial Regulation (Mar. 22, 2021).
45 Ch. 2020-161, Laws of Fla.
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Criminal Justice Information Law Unit (CJILU) to obtain an Originating Agency Identifier (ORI). The ORI
validates legal authorization to obtain criminal justice information and identifies the specific agency
requesting the information. CJILU reviewed s. 559.952, F.S., which derives its fingerprinting authority
from s. 560.141, F.S.
CJILU responded to this request stating that s. 560.141, F.S., does not qualify for access to CHRI data
because the terms “responsible person” and “control of a money services business” as used in s.
560.141, F.S., are overly broad and, thus, do not sufficiently define the categories of people subject to
the background check.46 In 2022, the Legislature passed a bill to address this issue by creating the
term “control person” to replace the use of “officer” and “responsible person” throughout ch. 560 F.S. 47
This solution sought to address the concerns of CJILU by narrowing the scope of applicable parties.
However, CJILU found that the revised statute was still too broad.
The CJILU acknowledged that MSB fingerprinting was previously approved by the CJILU and that the
FBI will continue to honor fingerprints submitted for MSB licensure. 48 However, the CJILU has placed
MSB fingerprinting on a grace period of unspecified length in order to allow Florida to amend MSB
fingerprinting statutes such that the statutes specifically identify the categories of licensees or
employees falling within the purview of the statutes. CJILU will not allow fingerprinting of additional
categories of applicants (i.e., those applying under the Financial Technology Sandbox) during this
grace period.49
Effect of the Bill
The bill amends the term “control person” to identify the specific categories of licensees or employees
falling within the purview of the statute.
The bill requires the following MSB-related “control persons” to be fingerprinted for the background
check:
A person who holds any of the officer, manager, or managing member positions named in the
money services business’s governing documents.50
A director of the money service’s business’s board of directors.
A person with a 25% or greater transferable interest in a money services business that is either
a corporation or foreign corporation.51
A person with a 25% or greater transferable interest in a money services business that is either
a limited partnership, limited liability limited partnership, foreign limited partnership, or foreign
limited liability limited partnership.52
A person with a 25% or greater transferable interest in a money services business that is either
a limited liability company or a foreign limited liability company. 53
The bill provides an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1. Amends s. 560.103, F.S., relating to definitions.
Section 2. Provides an effective date of July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
46 Email from Heather R. Postlethwait, supra note 44.
47 Ch. 2022-135, Laws of Fla.
48 Id.
49 Id.
50 Governing documents is defined as including bylaws, articles of incorporation or organization, partnership agreements,
shareholder agreements, and management or operating agreements .
51 As defined in s. 607.01401, F.S.
52 As defined in s. 620.1102, F.S.
53 As defined in s. 605.0102, F.S.
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A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
The bill has minimal fiscal impact related to rulemaking and any cost would be absorbed within the
Office of Financial Regulation’s current budget.54
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill has a minimal impact on vendors from a slight increase or decrease in the number of
individuals subject to fingerprinting.55
D. FISCAL COMMENTS:
The bill has minimal fiscal impact on state government expenditures.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None provided by the bill.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
54 Email from Ash Mason, Legislative
& Cabinet Affairs Director, Florida Office of Financial Regulation, RE: OFR
Questions (HB607 – Chapter 560 Fingerprint Bill) (Mar. 13,2023).
55 Id.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 607 2023
1 A bill to be entitled
2 An act relating to money services businesses; amending
3 s. 560.103, F.S.; revising the definition of the term
4 "control person" for purposes of ch. 560, F.S.;
5 defining the term "governing documents"; providing an
6 effective date.
7
8 Be It Enacted by the Legislature of the State of Florida:
9
10 Section 1. Subsection (10) of section 560.103, Florida
11 Statutes, is amended to read:
12 560.103 Definitions.—As used in this chapter, the term:
13 (10) "Control person" means any of the following:
14 (a) A person who holds the title of president, chief
15 executive officer, chief financial officer, chief operations
16 officer, chief legal officer, or compliance officer for a money
17 services business.
18 (b) A person who holds any of the officer, manager, or
19 managing member positions named in the money services business's
20 governing documents. As used in this paragraph, the term
21 "governing documents" includes bylaws, articles of incorporation
22 or organization, partnership agreements, shareholder agreements,
23 and management or operating agreements.
24 (c) A person who holds any position named by the money
25 services business's liability insurance coverage for directors
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 607 2023
26 and officers, if the business has such coverage.
27 (d) A director of the money services business's board of
28 directors.
29 (e) A person who directs the affairs of a money services
30 business or who participates in, or has authority to participate
31 in, the major policymaking functions of a money services
32 business, regardless of whether the person has an official title
33 or receives a salary or other compensation.
34 (d)(f) For a money services business that is a corporation
35 or a foreign corporation, as those terms are defined in s.
36 607.01401, each person who is a 25 percent or greater interest
37 holder as that term is defined in s. 607.01401(44)(a) , all
38 shareholders that, directly or indirectly, own 25 percent or
39 more or that have the power to vote 25 percent or more of a
40 class of voting securities.
41 (e)(g) For a money services business that is a limited
42 partnership, limited liability limited partnership, foreign
43 limited partnership, or foreign limited liability limited
44 partnership as those terms are defined in s. 620.1102, each
45 person who has a 25 percent or greater transferable interest as
46 that term is defined in s. 620.1102 all general partners, and
47 those limited or special partners that have contributed 25
48 percent or more or that have the right to receive upon
49 dissolution 25 percent or more of the partnership's capital.
50 (f)(h) For a money services business that is a limited
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 607 2023
51 liability company or a foreign limited liability company, as
52 those terms are defined in s. 605.0102, each person who is a 25
53 percent or greater interest holder as that term is defined in s.
54 605.0102(31)(f), all managers, and those members that have
55 contributed 25 percent or more or that have the right to receive
56 upon dissolution 25 percent or more of the limited liability
57 company's capital.
58 Section 2. This act shall take effect July 1, 2023.
Page 3 of 3
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hb0607-00
COMMERCE COMMITTEE
HB 607 by Rep. Steele
Money Services Businesses
AMENDMENT SUMMARY
April 10, 2023
Amendment 1 by Rep. Steele (Lines 13): The amendment implements new feedback
received from the FBI to limit the breadth of the fingerprinting requirements applicable to
persons involved in money services businesses by more narrowly specifying the individuals who
must be fingerprinted. It also generally conforms to the Senate companion.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 607 (2023)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/O OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Commerce Committee
2 Representative Steele offered the following:
3
4 Amendment
5 Remove lines 13-57 and insert:
6 (10) "Control person" means, with respect to a money
7 services business, any of the following:
8 (a) A person who holds the title of president, treasurer,
9 chief executive officer, chief financial officer, chief
10 operations officer, chief legal officer, or compliance officer
11 for a money services business.
12 (b) A person who holds any of the officer, general
13 partner, manager, or managing member positions named in the
14 money services business's governing documents. As used in this
15 paragraph, the term "governing documents" includes bylaws,
16 articles of incorporation or organization, partnership
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Page 1 of 3
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 607 (2023)
Amendment No. 1
17 agreements, shareholder agreements, and management or operating
18 agreements.
19 (c) A person who holds any position named by the money
20 services business's liability insurance coverage for directors
21 and officers, if the business has such coverage.
22 (d) A director of the money services business's board of
23 directors.
24 (e) A person who directs the affairs of a money services
25 business or who participates in, or has authority to participate
26 in, the major policymaking functions of a money services
27 business, regardless of whether the person has an official title
28 or receives a salary or other compensation.
29 (d)(f) A shareholder whose name shares are registered in
30 the records of a corporation for profit, whether incorporated
31 under the laws of this state or organized under the laws of any
32 other jurisdiction and existing in that legal form, who owns 25
33 percent or more of a class of the company's equity securities
34 For a money services business that is a corporation, all
35 shareholders that, directly or indirectly, own 25 percent or
36 more or that have the power to vote 25 percent or more of a
37 class of voting securities.
38 (e)(g) A general partner or a limited partner, as those
39 terms are defined in s. 620.1102, who has a 25 percent or more
40 transferable interest, as defined in s. 620.1102, of a limited
41 partnership, limited liability limited partnership, foreign
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Page 2 of 3
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 607 (2023)
Amendment No. 1
42 limited partnership, or foreign limited liability limited
43 partnership, as those terms are defined in s. 620.1102. For a
44 money services business that is a partnership, all general
45 partners, and those limited or special partners that have
46 contributed 25 percent or more or that have the right to receive
47 upon dissolution 25 percent or more of the partnership's
48 capital.
49 (f)(h) A member, who is a person that owns a membership
50 interest in a limited liability company or a foreign limited
51 liability company, as those terms are defined in s. 605.0102(36)
52 and (26), respectively, that holds a 25 percent or more
53 membership interest in such companies. As used in this
54 subsection, the term "membership interest" means a member's
55 right to receive distributions or other rights, such as voting
56 rights or management rights, under the articles of organization
57 For a money services business that is a limited liability
58 company, all managers, and those members that have contributed
59 25 percent or more or that have the right to receive upon
60 dissolution 25 percent or more of the limited liability
61 company's capital.
62 (g) A natural person who indirectly owns 25 percent or
63 more of the shares or stock interest, transferable interest as
64 defined in s. 620.1102, or membership interest as defined in
65 paragraph (f), of any legal entities referred to in paragraphs
66 (d)-(f).
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CS/HB 721
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 721 Paid Family Leave Insurance
SPONSOR(S): Insurance & Banking Subcommittee, Chaney and others
TIED BILLS: IDEN./SIM. BILLS: CS/SB 670
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Insurance & Banking Subcommittee 16 Y, 0 N, As CS Fletcher Lloyd
2) Appropriations Committee 26 Y, 0 N Helpling Pridgeon
3) Commerce Committee Fletcher Hamon
SUMMARY ANALYSIS
Currently, life insurers in the state are authorized to transact health insurance, disability income insurance,
excess coverage for health maintenance organizations and multiple-employer welfare arrangements, but are
not expressly authorized to issue paid family leave insurance.
Family leave guarantees originated with the Family Medical Leave Act of 1993 (FMLA), requiring covered
employers to provide eligible employees job-protected leave for qualifying family and medical reasons.
Covered employers under FMLA include private-sector employers who employ 50 or more employees in 20 or
more workweeks during a calendar year, all public agencies, and all educational agencies. FMLA protects
leave for the birth or adoption of a child, the serious health condition of an employee, care for an employee’s
family member who has a serious health condition, and reasons related to a family member’s service in the
military.
The bill creates a regulatory structure for creation and sale of paid family leave insurance policies by life
insurers. Notably, the bill does not create a right to paid family leave benefits for employees not otherwise
eligible under FMLA. Rather, the bill gives their employers the option to offer, and authorizes life insurers to
transact, paid family leave insurance providing benefits covering certain lost wages.
The bill:
revises the definition of “kinds of insurance” to include paid family leave insurance,
defines “paid family leave insurance,”
specifies requirements under which family leave insurance benefits may be provided,
requires insurance policies to specify details and requirements for covered leave reasons,
specifies requirements for polices relating to benefit periods and waiting periods,
permits limitations, exclusions and reductions for eligibility, and
authorizes the Financial Services Commission to adopt rules.
While the bill does not have a fiscal impact on local governments, the bill does have an indeterminate, but
likely positive, fiscal impact on state government. The bill has a positive and negative fiscal impact on the
private sector.
The bill will take effect upon becoming a law.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Florida’s Insurance Industry
The Florida Office of Insurance Regulation (OIR) regulates the insurance industry in the state. OIR is
responsible for the regulation of all activities in the state concerning insurers and other risk bearing entities,
including licensing, rates, policy forms, market conduct, claims, issuance of certificates of authority,
solvency, viatical settlements, premium financing, and administrative supervision. 1
OIR is housed within the Florida Department of Financial Services (DFS), and its funding is appropriated by
the Legislature from the Insurance Regulatory Trust Fund (IRTF).2 The IRTF is funded by insurance
company licensing fees, premium tax, surplus lines tax, and fines that may be levied for non-compliance
with provisions of the Florida Insurance Code (Insurance Code). 3
Under Florida’s Insurance Code, a qualifying insurer is authorized to transact any one kind or combination
of insurance, including life, health, property, casualty, surety, marine, and title. 4 Among the types of
authorized insurance, paid family leave insurance is not currently included. Nonetheless, OIR has already
approved paid family leave insurance products and such products have been sold and marketed in the
state as riders to disability income benefits for individuals utilizing family and medical leave. 5
Paid Family Leave Insurance
The federal Family Medical Leave Act of 1993 (FMLA) requires covered employers to provide eligible
employees job-protected leave for qualifying family and medical reasons. Covered employers under FMLA
include private-sector employers who employ 50 or more employees in 20 or more workweeks during a
calendar year, all public agencies, and all educational agencies. FMLA protects leave for the birth or
adoption of a child, the serious health condition of an employee, care for an employee’s family member
who has a serious health condition, and reasons related to a family member’s service in the military.
In 2022, the National Council of Insurance Legislators (NCOIL) adopted the Paid Family Leave Insurance
Model Act (Model Act).6 The Model Act created a new product of life insurance, known as paid family leave
insurance, under which any insurer licensed to transact life insurance or disability income insurance
business could be authorized to issue policies covering benefits for employees unable to work due to
circumstances eligible for FMLA protection.
Some states provide a program using either a social insurance policy design that funds benefits through
pooled payroll taxes on employees and/or employers, or private insurance to fund the programs.7
Programs available in these states are the result of legislation either making such programs mandatory or
1 Florida Office of Insurance Regulation, Organization and Operation, https://floir.com/about-us/organization-and-
operation#:~:text=The%20Florida%20Offic e%20of% 20Insurance,settlements%2C% 20premium%20financing%2C%20and
%20administrative (last visited Mar. 10, 2023). See also s. 624.308, F.S., and R. 69O, et seq., F.A.C.
2 Florida Office of Insurance Regulation, Organization and Operation, https://floir.com/about-us/organization-and-
operation#:~:text=The%20Florida%20Offic e%20of% 20Insurance,settlements%2C% 20premium%20financing%2C%20and
%20administrative (last visited Mar. 10, 2023).
3 Id. Chapters 624-632, 634, 635, 636, 641, 642, 648, and 651 constitute the Florida Insurance Code. See also s. 624.01,
F.S.
4 Ss. 624.406(1), and 624.6011, F.S.
5 Email from Stephen Marante, Deputy Director of Government Affairs, Office of Insurance Regulation, Re: Family Leave
Insurance (Feb. 17, 2023).
6 National Council of Insurance Legislators, Paid Family Leave Insurance Model Act (Adopted on Nov. 19, 2022).
7 Department of Financial Services, Agency Analysis of SB 670, p. 1 (Feb. 27, 2023).
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voluntary.8 States currently offering paid family leave insurance benefits through private insurers are New
York (mandatory), New Hampshire (voluntary), and Virginia (voluntary).9
Effect of the Bill
The bill creates a regulatory structure for creation and sale of paid family leave insurance policies both as a
stand-alone product, as a group insurance policy, and as a rider to a group disability income policy.
Notably, the bill does not create a right to paid family leave benefits for employees not otherwise eligible
under FMLA, but rather gives their employers the option to offer, and authorizes life insurers to transact,
paid family leave insurance benefits.
The bill includes paid family leave insurance as a type of insurance product with life, health, property,
casualty, surety, marine, and title insurance products. The bill defines paid family leave insurance as
insurance issued to an employer to pay for a percentage or portion of the employee’s income loss due to:
The birth of a child or adoption of a child by the employee;
Placement of a foster child with the employee;
Care of an employee’s family member who has a serious health condition; or
Circumstances arising out of the fact the employee’s family member is a servicemember on active
duty or has been notified of an impending call or order to active duty.
Defined Terms
The bill defines the following terms:
“Armed Forces of the United States” means an officer or enlisted member of the Army, Navy, Air
Force, Marine Corps, Space Force, or Coast Guard of the United States, the Florida National
Guard, and the United States Reserve Forces.
“Child” is someone who is:
o Under 18 years of age, or 18 years of age or older and incapable of self-care because of a
mental or physical disability; and
o A biological, adopted, or foster son or daughter; a stepson or stepdaughter; a legal ward; or
a son or daughter of a person to whom the employee stands in loco parentis.
“Family leave” is any leave taken by an employee for work for any of the reasons specified in the
newly created s. 627.445(4), F.S. (as more particularly described below).
“Family member” includes a child, spouse, or parent, or other person defined as a family member in
the policy.
“Health care provider” means any hospital licensed under ch. 395, F.S., and any health care
institution licensed under ch. 400 or ch. 429, F.S., or an individual licensed under ch. 458, 459, 460,
461, 464, or 466, F.S.
“Parent” means a biological, foster, or adoptive parent; a stepparent; a legal guardian; or other
person who stood in loco parentis to the employee when the employee was a child.
“Serious health condition” means an illness, injury, impairment, or physical or mental condition,
including, but not limited to, pregnancy complications that threaten the life of the mother or unborn
child; transplantation preparation and recovery from surgery related to organ or tissue donation,
which involves inpatient care in a hospital, hospice, or residential health care facility; continuing
treatment; or continuing supervision by a health care provider. Continuing supervision by a health
care provider includes a period of incapacity which is permanent or long-term due to a condition for
which treatment may not be effective and where the family member need not be receiving active
treatment by a health care provider.
Requirements and Specifications for the Policy
The bill provides family leave insurance may be written as an amendment or a rider to a group disability
income policy, included in a group disability income policy, or written as a separate group insurance policy
purchased by an employer. The bill also provides the policy must specify:
8 Id.
9 Id.
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Details and requirements with regard to each of the covered family leave reasons;
The length of family leave insurance benefits available for each covered family leave reason, which
may not be less than 2 weeks during a period of 52 consecutive calendar weeks;
Whether there is an unpaid waiting period, and if so, the terms and conditions of the unpaid waiting
period;
The amount of benefits that will be paid for covered family reasons;
Definition of the wages or other income upon which the amount of family leave insurance benefits
will be issued; and
Whether the family leave insurance benefits are subject to offsets for wages or other income
received or for which the insured may be eligible, and if so, all such wages or income that may be
set off and the circumstances under which it may be offset.
Permissible Limitations, Exclusions and Reductions for Eligibility
The bill allows eligibility for family leave insurance benefits to be limited, excluded, or reduced, but requires
any such limitation, exclusion, or reduction be specified in the policy. Permissible limitations, exclusions,
and reductions under the bill include, but are not limited to, any period of leave:
Wherein the required notice and medical certification as prescribed in the policy has not been
provided;
Related to a serious health condition or other harm to a family member caused by the willful
intention of the employee;
During which the employee performed work for remuneration or profit;
For which the employee is eligible to receive from his or her employer, or from a fund to which the
employer has contributed, remuneration or maintenance;
In which the employee is eligible to receive benefits under any other statutory program or employer-
sponsored program, including, but not limited to, unemployment insurance benefits, workers’
compensation benefits, statutory disability benefits, statutory paid leave benefits, or any paid time
off or employer’s paid leave policy;
Commencing before the employee becomes eligible for family leave insurance benefits under the
policy; or
Where more than one person seeks family leave insurance for the same family member.
The bill requires that family leave insurance benefits be paid periodically and promptly, except as to a
contested period of leave and subject to any of the limitations, exclusions, or reductions explained above.
Rates for policies or riders providing paid family leave insurance benefits must meet Florida’s rate making
standard, to wit, they must not be inadequate, excessive, or unfairly discriminatory10 and that the applicable
insurance forms are subject to review by OIR.
B. SECTION DIRECTORY:
Section 1. Amends s. 624.406, F.S., authorizing life insurers to transact paid family leave insurance.
Section 2. Creates s. 624.6011, F.S., defining “Paid family leave insurance”, providing circumstances
under which paid family leave insurance may be issued and purchased.
Section 3. Amends s., 627.445, F.S., defining terms, providing circumstances under which family leave
insurance benefits may be provided.
Section 4. Provides the bill shall become effective upon becoming a law.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
10 S. 627.062, F.S.
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The bill has an indeterminate, but likely positive, fiscal impact on state government. The state may
see increased premium tax revenues to the extent that a paid family leave insurance market
develops.
2. Expenditures:
OIR will need to add family leave coverage as a new line of business to the correct IT systems.11
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Employees eligible to receive family leave insurance benefits can receive compensation they would not
have otherwise received while unable to work due to eligible parental leave or their own or their family
member’s serious health condition or military service. Although the paid family leave insurance is
optional for private employers not otherwise covered under FMLA, the insurance policy would be
funded by the employer and/or the employee.
D. FISCAL COMMENTS:
The bill has an indeterminate impact on state government and none on local governments. If a private
employer offers the insurance, the bill has a positive fiscal impact for eligible employees and a negative
fiscal impact for employers and employees due to premiums funding the policies. However, such
private employers may see greater employee satisfaction and productivity and may also be more
competitive in hiring quality employees.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill authorizes the Financial Services Commission to adopt rules to administer the Paid Family
Leave Income Replacement Act, s. 627.445, F.S.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
11 Office of Insurance Regulation, Agency Analysis of 2023 HB 721, p. 4 (Mar. 8, 2023).
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IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 14, 2023, the Insurance & Banking Subcommittee considered the bill, adopted one amendment,
and reported the bill favorably as a committee substitute. The amendment made the following changes to
the bill:
Revised definitions, including:
o Armed Forces of the United States,
o Health care provider, and
o Serious health condition;
Established that forms for policies or riders providing paid family leave insurance benefits are
subject to review by the Florida Office of Insurance Regulation;
Made technical changes to conform the model act on which the bill is based to conform to the
requirements of the Florida Insurance Code; and
Removed superfluous language from the bill.
The analysis is drafted to the committee substitute as passed by the Insurance & Banking Subcommittee.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 721 2023
1 A bill to be entitled
2 An act relating to paid family leave insurance;
3 amending s. 624.406, F.S.; authorizing life insurers
4 to transact paid family leave insurance; creating s.
5 624.6086, F.S.; defining terms; providing
6 circumstances under which paid family leave insurance
7 may be issued and purchased; creating s. 627.445,
8 F.S.; defining terms; providing circumstances under
9 which family leave insurance benefits may be provided;
10 requiring paid family leave insurance policies to
11 specify details and requirements with regard to
12 covered circumstances; specifying requirements for
13 policies relating to benefit periods, waiting periods,
14 benefit amounts, certain offsets, and the payment of
15 benefits; providing that eligibility for family leave
16 insurance benefits may be limited, excluded, or
17 reduced but must be specified in the policy; providing
18 circumstances under which limitations, exclusions, and
19 reductions are permissible; providing applicable
20 provisions for calculating rates; providing that paid
21 family leave insurance forms and riders are subject to
22 review by the Office of Insurance Regulation;
23 specifying the means by which a policy may offer
24 family leave insurance benefits; authorizing the
25 Financial Services Commission to adopt rules;
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26 providing an effective date.
27
28 Be It Enacted by the Legislature of the State of Florida:
29
30 Section 1. Subsection (1) of section 624.406, Florida
31 Statutes, is amended to read:
32 624.406 Combinations of insuring powers, one insurer.—An
33 insurer which otherwise qualifies therefor may be authorized to
34 transact any one kind or combination of kinds of insurance as
35 defined in part V except:
36 (1) A life insurer may also grant annuities, but shall not
37 be authorized to transact any other kind of insurance except
38 health insurance, disability income insurance, paid family leave
39 insurance, excess coverage for health maintenance organizations,
40 or excess insurance, specific and aggregate, for self -insurers
41 of a plan of health insurance and multiple-employer welfare
42 arrangements.
43 Section 2. Section 624.6086, Florida Statutes, is created
44 to read:
45 624.6086 "Paid family leave insurance" defined; paid
46 family leave insurance issuance and purchase.—
47 (1) "Paid family leave insurance" is insurance issued to
48 an employer which is related to a benefit program provided to an
49 employee to pay for a percentage or portion of the employee's
50 income loss due to:
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51 (a) The birth of a child or adoption of a child by the
52 employee;
53 (b) Placement of a child with the employee for foster
54 care;
55 (c) Care of the employee's family member who has a serious
56 health condition; or
57 (d) Circumstances arising out of the fact that the
58 employee's family member who is a servicemember is on active
59 duty or has been notified of an impending call or order to
60 active duty.
61
62 As used in this subsection, the terms "child," "family leave,"
63 and "family member" have the same meanings as provided in s.
64 627.445(1).
65 (2) Paid family leave insurance may be issued to and
66 purchased by an employer as an amendment or a rider to a group
67 disability income policy, included in a group disability income
68 policy, or issued as a separate group insurance policy.
69 Section 3. Section 627.445, Florida Statutes, is created
70 to read:
71 627.445 Paid family leave insurance.—
72 (1) DEFINITIONS.—As used in this section, the term:
73 (a) "Armed Forces of the United States" means an officer
74 or enlisted member of the Army, Navy, Air Force, Marine Corps,
75 Space Force, or Coast Guard of the United States, the Florida
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76 National Guard, or the United States Reserve Forces.
77 (b) "Child" means a person who is:
78 1. Under 18 years of age, or 18 years of age or older and
79 incapable of self-care because of a mental or physical
80 disability; and
81 2. A biological, adopted, or foster son or daughter; a
82 stepson or stepdaughter; a legal ward; or a son or daughter of a
83 person to whom the employee stands in loco parentis.
84 (c) "Family leave" is any leave taken by an employee from
85 work for any of the circumstances specified in subsection (2).
86 (d) "Family member" includes a child, spouse, or parent,
87 or other person defined as a family member of the employee in
88 the policy.
89 (e) "Health care provider" means a hospital licensed under
90 chapter 395, a health care institution licensed under chapter
91 400 or chapter 429, or a person licensed under chapter 458,
92 chapter 459, chapter 460, chapter 461, chapter 464, or chapter
93 466.
94 (f) "Parent" means a biological, foster, or adoptive
95 parent; a stepparent; a legal guardian; or other person who
96 stood in loco parentis to the employee when the employee was a
97 child.
98 (g) "Serious health condition" means an illness, injury,
99 impairment, or physical or mental condition, including, but not
100 limited to, pregnancy complications that threaten the life of
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101 the mother or unborn child; transplantation preparation and
102 recovery from surgery related to organ or tissue donation which
103 involve inpatient care in a hospital, hospice, or residential
104 health care facility; continuing treatment; or continuing
105 supervision by a health care provider. Continuing supervision by
106 a health care provider includes a period of incapacity which is
107 permanent or long-term due to a condition for which treatment
108 may not be effective and during which the family member need not
109 be receiving active treatment by a health care provider.
110 (2) COVERED FAMILY LEAVE INSURANCE BENEFITS.—Family leave
111 insurance benefits provided in a paid family leave insurance
112 policy may be provided for any leave taken by an employee from
113 work for any of the following circumstances:
114 (a) Participation in providing care, including physical or
115 psychological care, for a family member made necessary by a
116 serious health condition of the family member;
117 (b) Bonding with the employee's child during the first 12
118 months after the child's birth or the first 12 months after the
119 placement of the child for adoption by or foster care with the
120 employee;
121 (c) Addressing a qualifying exigency as interpreted under
122 the Family and Medical Leave Act of 1993, 29 U.S.C. s.
123 2612(a)(1)(E) and 29 C.F.R. s. 825.126(a)(1)-(8), arising out of
124 the fact that the spouse, child, or parent of the employee is on
125 active duty or has been notified of an impending call or order
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126 to active duty in the Armed Forces of the United States;
127 (d) Caring for a family member who was injured in the line
128 of duty while serving in the Armed Forces of the United States;
129 or
130 (e) Caring for a family member or taking other leave as
131 specified in the policy.
132 (3) REQUIRED POLICY SPECIFICITY.—The policy must specify
133 all of the following:
134 (a) Details and requirements with regard to each of the
135 covered circumstances specified in subsection (2).
136 (b) The length of family leave insurance benefits
137 available for each covered circumstance, which may not be less
138 than 2 weeks during a period of 52 consecutive calendar weeks.
139 (c) Whether there is an uncovered waiting period and, if
140 so, the terms and conditions of the uncovered waiting period,
141 which may include, but are not limited to, whether:
142 1. The period runs over a consecutive calendar day period;
143 2. The period is counted toward the annual allotment of
144 covered family leave insurance benefits or is in addition to the
145 annual allotment of covered family leave insurance benefits;
146 3. The period must be met only once per benefit year or
147 must be met for each separate claim for benefits; and
148 4. The employee may work or receive paid time off or other
149 compensation during the period.
150 (d) The amount of benefits that will be paid for covered
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151 circumstances specified in subsection (2).
152 (e) The definition of the wages or other income upon which
153 the amount of benefits will be issued.
154 (f) The method by which such wages or other income will be
155 calculated.
156 (g) If the family leave insurance benefits are subject to
157 offsets for wages or other income received or for which the
158 insured may be eligible, all such wages or other income that may
159 be offset and the circumstances under which it may be offset.
160 (h) The frequency of payments due for covered benefits.
161 (4) CALCULATION OF 52 CONSECUTIVE CALENDAR WEEKS. —For
162 purposes of this section, 52 consecutive calendar weeks may be
163 calculated by:
164 (a) A calendar year;
165 (b) Any fixed period starting on a particular date, such
166 as the effective or anniversary date of the policy;
167 (c) The employee's hiring date or anniversary of hiring
168 date;
169 (d) The period measured forward from the employee's first
170 day of family leave;
171 (e) A rolling period measured by looking back from the
172 employee's first day of family leave; or
173 (f) Any other method specified in the policy.
174 (5) PERMISSIBLE LIMITATIONS, EXCLUSIONS, OR REDUCTIONS. —
175 Eligibility for family leave insurance benefits under this
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176 section may be limited, excluded, or reduced, but any
177 limitation, exclusion, or reduction must be specified in the
178 policy and not conflict with the insurance code. Limitations,
179 exclusions, or reductions are permissible for any of the
180 following circumstances:
181 (a) For any period during which the required notice and
182 medical certification as prescribed in the policy have not been
183 provided;
184 (b) For any leave related to a serious health condition or
185 other harm to a family member brought about by a willful act by
186 the employee;
187 (c) For any period during which the employee performed
188 work for remuneration or profit;
189 (d) For any period for which the employee is eligible to
190 receive remuneration or maintenance from her or his employer, or
191 from a fund to which the employer has contributed;
192 (e) For any period during which the employee is eligible
193 to receive benefits under any other statutory program or
194 employer-sponsored program, including, but not limited to,
195 unemployment insurance benefits, workers' compensation benefits,
196 or any paid time off or employer's paid leave policy;
197 (f) For any period commencing before the employee becomes
198 eligible for family leave insurance benefits under the policy;
199 (g) For any period during which more than one person seeks
200 family leave for the same family member under the same policy,
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201 unless the policy specifies otherwise; or
202 (h) Other reasons specified in the policy.
203 (6) PAYMENT OF FAMILY LEAVE INSURANCE BENEFITS.—Family
204 leave insurance benefits provided under a policy that complies
205 with this section must be paid periodically and promptly, as
206 specified in the policy, except as to a contested period of
207 family leave and subject to any of the limitations, exclusions,
208 or reductions permitted under subsection (5).
209 (7) INSURANCE POLICY.—
210 (a) Rates for policies or riders providing paid family
211 leave insurance benefits must be calculated in accordance with
212 the rate standards provided in s. 627.062.
213 (b) Forms for policies or riders providing paid family
214 leave insurance benefits are subject to review by the office
215 under s. 627.410.
216 (c) A policy issued under this section must meet the
217 requirements of s. 624.6086(2).
218 (8) RULEMAKING.—The commission may adopt rules to
219 implement this section.
220 Section 4. This act shall take effect upon becoming a law.
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COMMERCE COMMITTEE
CS/HB 721 by Rep. Chaney
Relating to Paid Family Leave Insurance
AMENDMENT SUMMARY
April 7, 2023
Amendment 1 by Rep. Chaney (Strike-all): The amendment makes non-substantive, technical
changes to conform the bill with its Senate companion.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 721 (2023)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/O OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Commerce Committee
2 Representative Chaney offered the following:
3
4 Amendment (with title amendment)
5 Remove everything after the enacting clause and insert:
6 Section 1. Subsection (1) of section 624.406, Florida
7 Statutes, is amended to read:
8 624.406 Combinations of insuring powers, one insurer.—An
9 insurer which otherwise qualifies therefor may be authorized to
10 transact any one kind or combination of kinds of insurance as
11 defined in part V except:
12 (1) A life insurer may also grant annuities, but shall not
13 be authorized to transact any other kind of insurance except
14 health insurance, disability income insurance, paid family leave
15 insurance, excess coverage for health maintenance organizations,
16 or excess insurance, specific and aggregate, for self -insurers
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 721 (2023)
Amendment No. 1
17 of a plan of health insurance and multiple-employer welfare
18 arrangements.
19 Section 2. Section 624.6086, Florida Statutes, is created
20 to read:
21 624.6086 "Paid family leave insurance" defined.—
22 (1) "Paid family leave insurance" is insurance issued to
23 an employer which is related to a benefit program provided to an
24 employee to pay for a percentage or portion of the employee's
25 income loss due to:
26 (a) The birth of a child or the adoption of a child by the
27 employee;
28 (b) Placement of a child with the employee for foster
29 care;
30 (c) Care of the employee's family member who has a serious
31 health condition; or
32 (d) Circumstances arising out of the fact that the
33 employee's family member who is a servicemember is on active
34 duty or has been notified of an impending call or order to
35 active duty.
36 (2) Paid family leave insurance may be issued to and
37 purchased by an employer as an amendment or a rider to a group
38 disability income policy, included in a group disability income
39 policy, or issued as a separate group insurance policy.
40 (3) As used in this section, the terms "child," "family
41 leave," and "family member" have the same meanings as provided
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 721 (2023)
Amendment No. 1
42 in s. 627.445(1).
43 Section 3. Section 627.445, Florida Statutes, is created
44 to read:
45 627.445 Paid family leave insurance.—
46 (1) DEFINITIONS.—As used in this section, the term:
47 (a) "Armed Forces of the United States" means an officer
48 or enlisted member of the Army, Navy, Air Force, Marine Corps,
49 Space Force, or Coast Guard of the United States, the Florida
50 National Guard, and the United States Reserve Forces.
51 (b) "Child" means a person who is:
52 1. Under 18 years of age, or 18 years of age or older and
53 incapable of self-care because of a mental or physical
54 disability; and
55 2. A biological, adopted, or foster son or daughter; a
56 stepson or stepdaughter; a legal ward; or a son or daughter of a
57 person to whom the employee stands in loco parentis.
58 (c) "Family leave" means any leave taken by an employee
59 from work for any of the circumstances specified in subsection
60 (2).
61 (d) "Family member" includes a child, spouse, or parent,
62 or other person defined as a family member of the emplo yee in
63 the policy.
64 (e) "Health care provider" means any hospital licensed
65 under chapter 395 and any health care institution licensed under
66 chapter 400 or chapter 429 or an individual licensed under
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 721 (2023)
Amendment No. 1
67 chapter 458, chapter 459, chapter 460, chapter 461, chap ter 464,
68 or chapter 466.
69 (f) "Parent" means a biological, foster, or adoptive
70 parent; a stepparent; a legal guardian; or other person who
71 stood in loco parentis to the employee when the employee was a
72 child.
73 (g) "Serious health condition" means an illness, an
74 injury, an impairment, or a physical or mental condition,
75 including, but not limited to, pregnancy complications that
76 threaten the life of the mother or unborn child; transplantation
77 preparation and recovery from surgery related to organ or tissue
78 donation, which involves inpatient care in a hospital, hospice,
79 or residential health care facility; continuing treatment; or
80 continuing supervision by a health care provider. Continuing
81 supervision by a health care provider includes a period of
82 incapacity which is permanent or long-term due to a condition
83 for which treatment may not be effective and where the family
84 member need not be receiving active treatment by a health care
85 provider.
86 (2) COVERED FAMILY LEAVE BENEFITS.—Family leave insurance
87 benefits provided in a paid family leave insurance policy may be
88 provided for any leave taken by an employee from work for any of
89 the following circumstances:
90 (a) Participation in providing care, including physical or
91 psychological care, for a family member made necessary by a
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 721 (2023)
Amendment No. 1
92 serious health condition of the family member;
93 (b) Bonding with the employee's child during the first 12
94 months after the child's birth or the first 12 months after the
95 placement of the child for adoption by or foster care with the
96 employee;
97 (c) Addressing a qualifying exigency as interpreted under
98 the Family and Medical Leave Act of 1993, 29 U.S.C. s.
99 2612(a)(1)(E) and 29 C.F.R. s. 825.126(a)(1)-(8), arising out of
100 the fact that the spouse, child, or parent of the employee is on
101 active duty or has been notified of an impending call or order
102 to active duty in the Armed Forces of the United States;
103 (d) Caring for a family member injured in the line of duty
104 with the Armed Forces of the United States; or
105 (e) Caring for a family member or other leave as specified
106 in the policy.
107 (3) REQUIRED POLICY SPECIFICITY.—The policy must specify:
108 (a) Details and requirements with regard to each of the
109 covered circumstances specified in subsection (2),
110 (b) The length of family leave insurance benefits
111 available for each covered circumstance, which may not be less
112 than 2 weeks during a period of 52 consecutive calendar weeks.
113 (c) Whether there is an uncovered waiting period, and if
114 so, the terms and conditions of the uncovered waiting period,
115 which may include, but are not limited to, whether:
116 1. The period runs over a consecutive calendar day period;
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 721 (2023)
Amendment No. 1
117 2. The period is counted toward the annual allotment of
118 covered family leave insurance benefits or is in addition to the
119 annual allotment of covered family leave insurance benefits;
120 3. The period must be met only once per benefit year or
121 must be met for each separate claim for benefits; and
122 4. The employee may work or receive paid time off or other
123 compensation during the period.
124 (d) The amount of benefits that will be paid for covered
125 circumstances provided in subsection (2).
126 (e) The definition of the wages or other income upon which
127 the amount of benefits will be issued.
128 (f) How such wages or other income will be calculated.
129 (g) If the family leave insurance benefits are subject to
130 offsets for wages or other income received or for which the
131 insured may be eligible, all such wages or other income that may
132 be set off and the circumstances under which it may be offset.
133 (h) The frequency of payments due for covered benefits.
134 (4) CALCULATION OF 52 CONSECUTIVE CALENDAR WEEKS. -For
135 purposes of this section, 52 consecutive calendar weeks may be
136 calculated by:
137 (a) A calendar year;
138 (b) Any fixed period starting on a particular date, such
139 as the effective or anniversary date of the policy;
140 (c) The employee's hiring date or anniversary of hiring
141 date;
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 721 (2023)
Amendment No. 1
142 (d) The period measured forward from the employee's first
143 day of family leave;
144 (e) A rolling period measured by looking back from the
145 employee's first day of family leave; or
146 (f) Any other method specified in the policy.
147 (5) PERMISSIBLE LIMITATIONS, EXCLUSIONS, OR REDUCTIONS. —
148 Eligibility for family leave insurance benefits under this
149 section may be limited, excluded, or reduced, but any
150 limitation, exclusion, or reduction must be specified in the
151 policy and not conflict with the Florida Insurance Code.
152 Permissible limitations, exclusions, or reductions may be made
153 for the following:
154 (a) For any period wherein the required notice and medical
155 certification as prescribed in the policy has not been provided;
156 (b) For any leave related to a serious health condition or
157 other harm to a family member brought about by a willful act by
158 the employee;
159 (c) For any period during which the employee performed
160 work for remuneration or profit;
161 (d) For any period for which the employee is eligible to
162 receive remuneration or maintenance from her or his employer, or
163 from a fund to which the employer has contributed;
164 (e) For any period during which the employee is eligible
165 to receive benefits under any other statutory program or
166 employer-sponsored program, including, but not limited to,
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 721 (2023)
Amendment No. 1
167 unemployment insurance benefits, workers' compensation benefits,
168 or any paid time off or employer's paid leave policy;
169 (f) For any period commencing before the employee becomes
170 eligible for family leave insurance benefits under the policy;
171 (g) For periods where more than one person seeks family
172 leave for the same family member under the same policy, unless
173 the policy specifies otherwise; or
174 (h) For other reasons specified in the policy.
175 (6) PAYMENT OF FAMILY LEAVE BENEFITS.—Family leave
176 insurance benefits provided under a policy that complies with
177 this section must be paid periodically and promptly, as
178 specified in the policy, except as to a contested period of
179 family leave and subject to any of the limitations, exclusions,
180 or reductions permitted under subsection (5).
181 (7) INSURANCE POLICY.—
182 (a) Rates for policies or riders providing paid family
183 leave insurance benefits must be calculated in accordance with
184 the rate standards provided in s. 627.062.
185 (b) Forms for policies or riders providing paid family
186 leave insurance benefits are subject to review by the office
187 under s. 627.410.
188 (c) A policy issued under this section must be issued as
189 provided in s. 624.6086(2).
190 (8) RULEMAKING.—The commission may adopt rules to
191 administer this section.
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 721 (2023)
Amendment No. 1
192 Section 4. This act shall take effect upon becoming a law.
193
194 -----------------------------------------------------
195 T I T L E A M E N D M E N T
196 Remove everything before the enacting clause and insert:
197 A bill to be entitled
198 An act relating to paid family leave insurance;
199 amending s. 624.406, F.S.; authorizing life insurers
200 to transact paid family leave insurance; creating s.
201 624.6086, F.S.; defining terms; creating s. 627.445,
202 F.S.; defining terms; specifying circumstances under
203 which family leave insurance benefits may be provided
204 under a paid family leave insurance policy; requiring
205 that paid family leave insurance policies specify
206 details and requirements with regard to covered
207 circumstances; specifying requirements for policies
208 relating to benefit periods, waiting periods, benefit
209 amounts and certain offsets, and the payment of
210 benefits; providing that eligibility for family leave
211 insurance benefits may be limited, excluded, or
212 reduced, but must be specified in the policy;
213 specifying permissible limitations, exclusions, and
214 reductions; providing applicable provisions for
215 calculating rates; specifying the means by which a
216 policy must offer family leave insurance benefits;
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 721 (2023)
Amendment No. 1
217 authorizing the Financial Services Commission to adopt
218 rules; providing an effective date.
219
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HB 737
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 737 Secondhand Goods
SPONSOR(S): Barnaby
TIED BILLS: IDEN./SIM. BILLS: SB 442
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY
CHIEF
1) Regulatory Reform & Economic Development 15 Y, 0 N Larkin Anstead
Subcommittee
2) Commerce Committee Larkin Hamon
SUMMARY ANALYSIS
Chapter 538, F.S., regulates secondhand dealers and secondary metal recyclers in the trade of secondhand
goods. A secondhand dealer is a person, corporation, or other business organization or entity, that is not a
secondary metals recycler, engaged in the business of purchasing, consigning, or trading secondhand goods.
Secondhand goods are previously owned or used personal property that is purchased, consigned, or traded as
used property.
The bill amends the definition of “secondhand goods” to exclude “money”; gold bullion, silver bullion, platinum
bullion, palladium bullion, or rhodium bullion if such bullion has been assayed and is properly marked as to its
weight and fineness.
The bill removes coins from the list of items which are expressly excluded from the definition of “secondhand
goods” and replaces “coins” with “money”.
The bill does not appear to impact state or local governments.
The bill takes effect July 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h0737b.COM
DATE: 4/6/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Chapter 538, F.S., regulates secondhand dealers and secondary metal recyclers in the trade of
secondhand goods. A secondhand dealer 1 is defined as any person, corporation, or other business
organization or entity that is not a secondary metals recycler and is engaged in the business of
purchasing, consigning, or trading secondhand goods. The term also includes a secondhand dealer
engaged in purchasing secondhand goods by means of an automated kiosk. 2
“Secondhand goods” means personal property previously owned or used which is not regulated metals
property regulated under part II of ch. 538, and which is purchased, consigned, or traded as used
property. The term includes gift certificates and credit memos 3 as defined in s. 501.95 which are
purchased, consigned, or traded by a secondhand dealer.
The term does not include:
office furniture,
pianos,
books,
clothing,
organs,
coins,
motor vehicles,
costume jewelry,
cardio and strength training or conditioning equipment designed primarily for indoor use, and
secondhand sports equipment that is not permanently labeled with a serial number. 4
o The term “secondhand sports equipment” does not include golf clubs.
Secondary metals recyclers may not sell “regulated metals property” without obtaining proof of
ownership or permission from the owner if the person is an employee of such owner. Regulated metals
property means any item composed primarily of any nonferrous metals. The term does not include
aluminum beverage containers, used beverage containers, or similar beverage containers; however,
the term includes stainless steel beer kegs and items made of ferrous metal obtained from any
restricted regulated metals property.
Restricted regulated metals property is subject to restrictions and includes the following:
A manhole cover.
An electric light pole or other utility structure and its fixtures, wires, and hardware that are
readily identifiable as connected to the utility structure.
A guard rail.
A street sign, traffic sign, or traffic signal and its fixtures and hardware.
Communication, transmission, distribution, and service wire from a utility, including copper or
aluminum bus bars, connectors, grounding plates, or grounding wire.
1 A pawnbroker is different than a secondhand dealer. “Pawn” means any advancement of funds on the security of pledged goods on
condition that the pledged goods are left in the possession of the pawnbroker for the duration of the pawn and may be redeeme d by the
pledgor on the terms and conditions contained in this section. See s. 539.001, F.S; Pawnshops must be registered and are regulated by
the Florida Department of Agriculture and Consumer Services. Pawnshops, Florida Department of Agriculture & Consumer Services,
https://www.fdacs.gov/Consumer-Resources/Consumer-Rights-and-Responsibilities/Pawnshops (last March 24, 2023).
2 S. 538.03(1)(h), F.S.
3 S. 501.95, F.S., defines “credit memo” as a certificate, card, stored value card, or similar instrument issued in exchange fo r returned
merchandise when the certificate, card, or similar instrument is redeemable for merchandise, food, or services regardle ss of whether
any cash may be paid to the owner of the certificate, card, or instrument as part of the redemption transaction.
4 S. 538.03(1)(i), F.S.
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A funeral marker or funeral vase.
A historical marker.
Railroad equipment, including, but not limited to, a tie plate, signal house, control box, switch
plate, E clip, or rail tie junction.
Any metal item that is observably marked upon reasonable inspection with any form of the
name, initials, or logo of a governmental entity, utility company, cemetery, or railroad.
A copper, aluminum, or aluminum-copper condensing or evaporator coil, including its tubing or
rods, from an air-conditioning or heating unit, excluding coils from window air-conditioning or
heating units and motor vehicle air-conditioning or heating units.
An aluminum or stainless-steel container or bottle designed to hold propane for fueling forklifts.
A stainless-steel beer keg.
A catalytic converter or any nonferrous part of a catalytic converter unless purchased as part of
a motor vehicle.
Metallic wire that has been burned in whole or in part to remove insulation.
A brass or bronze commercial valve or fitting, referred to as a “fire department connection and
control valve” or an “FDC valve,” that is commonly used on structures for access to water for the
purpose of extinguishing fires.
A brass or bronze commercial potable water backflow preventer valve that is commonly used to
prevent backflow of potable water from commercial structures into municipal domestic water
service systems.
A shopping cart.
A brass water meter.
A storm grate.
A brass sprinkler head used in commercial agriculture.
More than two lead-acid batteries, or any part or component thereof, in a single purchase or
from the same individual in a single day.
Regulation of Secondhand Dealers and Secondary Metals Recyclers
Local law enforcement and three state agencies have statutory obligations regarding Florida's
secondhand dealers, mail-in secondhand dealers, and secondary metals recyclers.
The three state agencies include:5
Florida Department of Revenue- Maintains the statewide registration system for secondhand
dealers, mail-in secondhand dealers, and secondary metals recyclers.
Florida Department of Highway Safety & Motor Vehicles (DHSMV) - Oversees recordkeeping,
proof of ownership, reporting, and enforcement of state laws related to the dismantling or
destruction of motor vehicles, recreational vehicles, and mobile homes by salvage motor vehicle
dealers and secondary metals recyclers (Chapter 319, F.S.). Depending on the type of
materials obtained, certain businesses may be required to register as a salvage motor vehicle
dealer in addition to registration as a secondary metals recycler. (Section 320.27, F.S)
Florida Department of Law Enforcement (FDLE) -Approves transaction forms that document the
sale/purchase of secondary metals. Secondary metals recyclers must complete and maintain
these forms for specified time periods (Chapter 538, F.S.).
Records and Reporting Requirements
A secondhand dealer must annually register his or her business with the Department of Revenue. 6
Examples of businesses that must register as a secondhand dealer include:
consignment stores (excluding stores that consign only clothes);
secondhand stores;
5 Secondary Metal Information, Florida Department of Law Enforcement, https://www.fdle.state.fl.us/SMI (last visited March 24, 2023).
6 S. 538.09, F.S.; What Businesses Are Required to Register as Secondhand Dealers?, Florida Department of Revenue,
https://floridarevenue.com/faq/Pages/FAQSearch.aspx?Cat=4&Subcat=59 (last visited March 24, 2023).
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music stores that buy or trade used music CDs;
used tire dealers; and
used furniture stores (other than office furniture).
Upon each acquisition of secondhand goods, a secondhand dealer must complete a trans action form
that details the goods purchased and the seller’s identity.
A “transaction” is defined as “any purchase, consignment, or trade of secondhand goods by a
secondhand dealer.”7 The secondhand dealer must retain this document for at least three years and
forward a copy to the appropriate law enforcement agency within 24 hours after the acquisition of the
secondhand goods.8 The secondhand dealer must also must keep copies on the registered
secondhand dealer premises for at least one year after the transaction.9
In addition to the descriptive statements of the secondhand goods and the seller’s identity, the
transaction record must also include:
A statement of the date, time, and place of the transaction;
A summary of the goods acquired, including brand name, model number, serial number, and
other unique identifiers;
Digital photographs of the goods acquired in the report that is submitted to law enforcement;
and
A description of the person from whom the goods were acquired, including his or her right
thumbprint, name and address, and a physical description. 10
Holding Period
Secondhand dealers are required to hold all secondhand goods for at least 15 days after they acquire
the property.
However, secondhand dealers are required to hold certain items for 30 days: 11
a precious metal,12
gemstone,
jewelry;
antique furnishings,
fixtures, or decorative objects; or
an item of art as defined in s. 686.501, F.S.13
Additionally, a secondhand good must be held for 30 days if the secondhand dealer uses an automated
kiosk.14
Such holding period is not applicable, however, when the person known by the secondhand dealer to
be the person from whom the goods were acquired desires to redeem, repurchase, or recover the
7 S. 538.03(1)(j), F.S.
8 S. 538.04(1), F.S.
9 Id.
10
Id.
11 S. 538.06(1), F.S.
12 S. 538.03(1)(f), F.S., defines “precious metals” as any item containing any gold, silver, or platinum, or any combination the reof,
excluding any chemical or any automotive, photographic, electrical, medical, or dental materials or electronic parts.
13 S. 686.501, F.S., defines “art” as a painting, sculpture, drawing, work of graphic art, pottery, weaving, batik, macramé, quilt, print,
photograph, or craft work executed in materials including, but not limited to, clay, textile, paper, fiber, wood, tile, meta l, plastic, or glass.
The term includes a rare map which is offered as a limited edition or a map 80 years old or older; or a rare document or rare print which
includes, a print, engraving, etching, woodcut, lithograph, or serigraph which is offered as a l imited edition, or one 80 years old or older.
14 S. 538.03(1)(c), F.S., defines an “automated kiosk” as an interactive device that is permanently installed within a secure re tail space
and that has the following technological functions: remotely monitored b y a live representative during all business hours; verification of
a seller’s identity by government-issued photographic identification card; automated reading and recording of item serial numbers;
ability to compare item serial numbers against databases of stolen items; secure storage of goods accepted by the kiosk; and capture
and storage of images during the transaction.
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goods, provided the dealer can produce the record of the original transaction with verification that the
customer is the person from whom the goods were originally acquired. 15
If a law enforcement officer has probable cause to believe that the goods held by a secondhand dealer
are stolen, the officer may place a 90-day written hold order on the goods. This prevents the
secondhand dealer from selling the goods and preserves them for use as evidence in a criminal trial. 16
Additionally, this allows for the possibility of the goods to be returned to their rightful owner.
Law enforcement agencies with jurisdiction enforce compliance with registration, record keeping,
holding periods, and inspection requirements.17 A person who knowingly violates the requirements
governing secondhand dealers in ch. 538, F.S., commits a first-degree misdemeanor, punishable by up
to 1 year in jail and a $10,000 fine.18
Methods for Return of Stolen Goods held by a Secondhand Dealer
A victim of a theft may recover his or her goods, or their value, through one of three methods :
A victim may purchase his or her items back from the secondhand dealer, and then file a civil
action against the thief for reimbursement of the cost expended.
A court may order restitution or return of the goods to the secondhand dealer or victim of the
crime.19 If the court orders return of the goods or restitution to the victim, the court must also
order restitution to the secondhand dealer from the person who sold the goods to the
secondhand dealer.20
A victim may file a civil action for replevin against the secondhand dealer.21
Replevin is an action for the repossession of personal property that was wrongfully taken or detained
by the defendant, where the plaintiff secures a bond for and holds the property until the court decides
the rightful owner.22 Petitions for replevin must contain the following information:
Proof of ownership or right of possession of the property in question and a description of the
property;
A description of how, to the best of plaintiff’s knowledge, the property was wrongfully taken by
the defendant; and
A statement that the property was not taken under any legal basis such as execution, tax, or
fine.23
In an action for replevin, a court is required to award the prevailing party attorney fees and costs. When
the petitioner is the prevailing party, the court may also order payment of the filing and service fees. 24
Victims of theft and prevailing plaintiffs in an action for replevin are entitled to damages for loss of use,
which are limited to no more than the value of the property before it was taken or damaged.25
A secondhand dealer commits a noncriminal violation, punishable by a fine of up to $2,500 if the
following occurs:
Owner or lienor makes a written demand for return of the property and provides proof of
ownership or proof of the right of possession to the secondhand dealer at least five days before
filing a replevin action;
The secondhand dealer knows or should have known based on the proof provided above, the
property belongs to the owner or lienor;
15 S. 538.06(1), F.S.
16 S. 538.06(3), F.S.
17 S. 538.05, F.S.
18 S. 538.07(1), F.S.
19 S. 538.07(2), F.S.
20 S. 538.06(4), F.S.
21 S. 538.08, F.S.
22 BLACK’ S L AW D ICTIONARY (10th ed. 2014) (defining the term “replevin”); see also, ch. 78, F.S., “Replevin.”
23 Ss. 78.055 and 538.08, F.S.
24 S. 538.08(2), F.S. Otherwise, the filing and services fees are waived.
25 Foresight Enterprises, Inc. v. Leisure Time Properties, Inc., 466 So.2d 283, 286 (Fla. 5th DCA 1985). The plaintiff is also entitled to
the summary procedure provided in s. 51.011, F.S.
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The secondhand dealer fails to return the property and does not file an action for interpleader 26
to determine conflicting claims to the property; and
The owner or lienor prevails in the replevin action against the secondhand dealer. 27
Currently, there appears to be ambiguity about whether products, such as precious metals, money28, or
coins 29 are considered securities and potentially subject a retailer of such to a variety of other laws outside
the secondhand goods regulatory scheme.30
Effect of Bill
The bill amends s. 538.03, F.S., to revise the definition of “secondhand goods” to exclude:
money; and
gold bullion31,
silver bullion,
platinum bullion,
palladium bullion, or
rhodium bullion
o If such bullion has been assayed32 and is properly marked as to its weight and fineness.
The bill removes “coins” from the list of items which are expressly excluded from the definition of
“secondhand goods”.
The bill clarifies that all currency is exempt from the required holding period under Part I of ch. 538, F.S.
Thus, the holding period of 30 days for certain bullion as described above is eliminated.
B. SECTION DIRECTORY:
Section 1: Amends s. 538.03, F.S., relating to secondhand goods.
Section 2: Provides effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
The bill does not appear to have an impact on state revenues.
2. Expenditures:
The bill does not appear to have an impact on state expenditures.
26
Generally, interpleader is suit to determine a right to property held by a disinterested thir d party (called a stakeholder) who is in doubt
about ownership and who therefore deposits the property with the court to permit interested parties to litigate ownership. BL ACK’S LAW
DICTIONARY (10th ed. 2014) (defining the term “interpleader”).
27 S. 538.08(5), F.S.
28 Money” means a medium of exchange authorized or adopted by a domestic or foreign government as part of its currency. S.
538.18(5), F.S.
29 “Coins” is not defined in the Florida Statutes. The dictionary defines “coins” as “usually flat piece of m etal issued by governmental
authority as money.” Coin Definition & Meaning, Merriam-Webster, https://www.merriam-webster.com/dictionary/coin (last visited March
26, 2023).
30 David Cosgrove, Retail Precious Metals Dealers Beware, Cosgrove Law Group , https://www.cosgrovelawllc.com/12-02-13-retail-
precious-metals-dealers-beware.html (last visited March 26, 2023).
31 “Bullion is a physical precious metal in the form of a bar, coin, or round that is almost entirely valued by its precious met al melt value
alone.” What Is Bullion?, SD Bullion , https://sdbullion.com/what-is-bullion (last visited March 25, 2023).
32 For example, “a gold assay is a process to measure the purity of items containing gold. It helps to ensure that gold coins or bullion
bars produced by a mint meet the correct purity and content standards.” Will Kenton, What Is Assay?, Investopedia, Investopedia, Nov.
21, 2022,
https://www.investopedia.com/terms/a/assay.asp#:~:text=A%20gold%20assay%20is%20a,correct%20purity%20and%20content%20st
andards (last visited March 25, 2023).
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B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
The bill does not appear to have an impact on local government revenues.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Secondhand dealers who purchase bullion may see a cost benefit because these items are expressly
excluded from the definition of a secondhand goods and therefore, are no longer required to be held for
30 days.
D. FISCAL COMMENTS:
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill neither requires nor authorizes administrative rulemaking by executive agencies.
C. DRAFTING ISSUES OR OTHER COMMENTS:
The sponsor has indicated that he will file an amendment to clarify that “coins” not “money” are
excluded from the holding period.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 737 2023
1 A bill to be entitled
2 An act relating to secondhand goods; amending s.
3 538.03, F.S.; revising the definition of "secondhand
4 goods"; providing an effective date.
5
6 Be It Enacted by the Legislature of the State of Florida:
7
8 Section 1. Paragraph (i) of subsection (1) of section
9 538.03, Florida Statutes, is amended to read:
10 538.03 Definitions; applicability.—
11 (1) As used in this part, the term:
12 (i) "Secondhand goods" means personal property previously
13 owned or used which is not regulated metals property regulated
14 under part II and which is purchased, consigned, or traded as
15 used property. The term includes gift certificates and credit
16 memos as defined in s. 501.95 which are purchased, consigned, or
17 traded by a secondhand dealer. The term does not include office
18 furniture;, pianos;, books;, clothing;, organs;, money; coins,
19 motor vehicles;, costume jewelry; gold, silver, platinum,
20 palladium, or rhodium bullion that has been assayed and is
21 properly marked as to its weight and fineness;, cardio and
22 strength training or conditioning equipment designed primarily
23 for indoor use;, and secondhand sports equipment that is not
24 permanently labeled with a serial number. As used in this
25 paragraph, the term "secondhand sports equipment" does not
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26 include golf clubs.
27 Section 2. This act shall take effect July 1, 2023.
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COMMERCE COMMITTEE
HB 737 by Rep. Barnaby and Rep. Mooney
Secondhand Goods
AMENDMENT SUMMARY
April 10, 2023
Amendment 1 by Rep. Barnaby (line 18):
• Reverts to current law regarding the holding period for “coins.”
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 737 (2023)
Amendment No.1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/O OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Commerce Committee
2 Representative Barnaby offered the following:
3
4 Amendment
5 Remove line 18 and insert:
6 furniture;, pianos;, books;, clothing;, organs;, coins;,
817943 - hb0737-line 18.docx
Published On: 4/7/2023 6:13:35 PM
Page 1 of 1
HB 743
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 743 Estoppel Letters
SPONSOR(S): Fabricio
TIED BILLS: IDEN./SIM. BILLS: SB 708
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Insurance & Banking Subcommittee 18 Y, 0 N Fletcher Lloyd
2) Civil Justice Subcommittee 14 Y, 0 N Mathews Jones
3) Commerce Committee Fletcher Hamon
SUMMARY ANALYSIS
A mortgagor selling collateralized property, refinancing a mortgage, or paying off a mortgage may request an
estoppel letter from the mortgagee or mortgage servicer (lender). Florida law currently defines an “estoppel
letter” as a statement of the amount of the unpaid balance of a loan secured by a mortgage, including principal,
interest, and any other charges due under or secured by the mortgage, and the interest on a per-day basis for
the unpaid balance. A lender must deliver an estoppel letter to the requesting party within 14 days after
receiving a written request for the same.
In some estoppel letters, lenders expressly reserve the right to change the amounts listed and disclaim the
reliance of others on the letter. Further, if after sending an estoppel letter the lender determines the mortgagor
owes additional funds beyond those stated in the letter, some lenders return payments made in reliance on the
letter. Until the discrepancy in amounts owed is resolved, interest and potential fees continue to ac crue and
title to the property remains unclear.
The bill revises the estoppel letter process. The bill:
Reduces the timeframe within which a lender must send a requested estoppel letter from 14 days to 10
days;
Prohibits a lender from qualifying, reserving the right to change, or conditioning or disclaiming the
reliance of others on information provided in an estoppel letter;
Allows a lender to send a corrected estoppel letter to supersede prior estoppel letters if the corrected
letter is received by a certain date and time and before any payment is made in reliance on a previous
estoppel letter;
Prohibits a lender from denying the accuracy of an estoppel letter against anyone who relied on it, but
permits recovery of the sum owed from the mortgagor;
Requires a lender to both accept payment received in reliance on an estoppel letter and promptly apply
such payment to the unpaid balance of the loan;
Requires a lender to execute and record an instrument confirming release of the mortgage in the official
records of the proper county, and send the recorded instrument to the mortgagor, within 60 days of
receiving full payment of the loan secured by the mortgage; and
Revises the definition of “estoppel letter.”
The bill has no fiscal impact on state or local governments. It may have an indeterminate positive fiscal impact
on the private sector.
The bill provides an effective date of October 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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DATE: 4/6/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Florida law currently defines an “estoppel letter” as a statement of the amount of the unpaid balance of a
loan secured by a mortgage, including principal, interest, and any other charges due under or secured by
the mortgage, and the interest on a per-day basis for the unpaid balance.1 An estoppel letter is often
requested when selling property that serves as collateral for a mortgage, refinancing a mortgage, or paying
off a mortgage. The request may be made by the mortgagor,2 the record title owner of the property, a
fiduciary or trustee lawfully acting on behalf of the record title owner, or any other person lawfully
authorized to act on behalf of the mortgagor or record title owner.3
Depending on who requests the estoppel letter, the following information must be included:
If the requesting party is the mortgagor or someone lawfully authorized to act on behalf of the
mortgagor, the estoppel letter must include an itemization of the principal, interest, and any other
charges properly due under or secured by the mortgage and interest on a per-day basis for the
unpaid balance.4
If the requesting party is the record title owner of the property or someone lawfully authorized to act
on behalf of the record title owner, the estoppel letter may include the itemization of the information
required above, but at a minimum must include the total unpaid balance due under or secured by
the mortgage on a per-day basis.5
Where the amount of money owed on a mortgage loan has been fully paid, the mortgagee or mortgage
servicer (lender) must execute an instrument in writing confirming release of the mortgage, have the
instrument acknowledged, and record the executed, acknowledged instrument in the official records of the
property county.6 Within 60 days of receiving full payment of the mortgage loan, the lender must send the
recorded release to the person who made the full payment. 7 In the case of a civil action arising out of this
requirement, the prevailing party is entitled to attorney fees and costs. 8
Some estoppel letters include language reserving the lender’s right to change the amounts listed in the
estoppel letter and disclaiming the reliance of others on the information included in the estoppel letter. If the
lender determines after sending the estoppel letter that the mortgagor owes additional money, some
lenders return the funds received from the closing which were sent in reliance on the amount stated in the
estoppel letter. This results in the continued accrual of interest, potential fees, and unclear title to the
property until resolution of the discrepancy.
1 S. 701.041(1)(a), F.S.
2 Mortgagor means “[s]omeone who mortgages property; the mortgage -debtor or borrower.” Black’s Law Dictionary (11th ed. 2019).
3 S. 701.04(1), F.S.
4 S. 704.04(1)(a), F.S.
5 S. 704.04(1)(b), F.S.
6 S. 704.04(2), F.S.
7 Id.
8 Id.
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Effect of the Bill
Content of Estoppel Letters
The bill standardizes the information that must be contained in an estoppel letter, regardless of whether the
requestor is the mortgagor, a record title owner, or a person lawfully authorized to act on behalf of the
mortgagor or record title owner. At a minimum, the letter must include:
The unpaid balance of the loan secured by the mortgage as of the date specified in the letter,
including an itemization of the principal, interest, and any other charges comprising the unpaid
balance; and
Interest accruing on a per-day basis for the unpaid balance, if applicable.
Prohibition of Certain Activities on Behalf of Lenders
The bill prohibits the lender from qualifying, reserving the right to change, or conditioning or disclaiming the
reliance of others on the information provided in an estoppel letter; any attempt to do so is void and
unenforceable. This prohibition does not apply to mortgages for which a notice of a lawsuit in a foreclosure
action or a suggestion of bankruptcy has been properly filed and recorded.
If the lender determines that any information in an estoppel letter is inaccurate, the lender may send a
corrected estoppel letter. The corrected estoppel letter will supersede any prior estoppel letter, provided the
corrected estoppel is received by 3 p.m. at least one business day before payment is made in reliance on
the estoppel letter.
If any information in the estoppel letter is inaccurate and a timely corrected estoppel letter is not sent, the
bill prohibits the lender from denying the accuracy of the estoppel letter against any person who relied on it.
However, this does not affect the lender’s right to recover any sum not included in the estoppel letter, nor
does it limit any claim or defense to recovery that the borrower may have.
If a payment is received at the location and in the manner specified by the lender, the lender must accept
and may not return any payment received in reliance on the estoppel letter, and the lender must promptly
apply such payment to the unpaid balance of the mortgage loan. This will prevent the accrual of interest
and potential fees while the lender and the borrower work through any discrepancies as to the amount
owed.
Process for Requesting and Sending Estoppel Letters
The bill reduces the timeframe within which a lender must send a requested estoppel letter setting forth the
unpaid balance of the mortgage loan from 14 days to 10 days. If the request for an estoppel letter is made
by a person other than the mortgagor, the request must include a copy of the instrument showing such
person’s title in the property or other lawful authorization, and the lender must notify the mortgagor of the
request.
A written request for a mortgage payoff letter must be sent to the lender by first-class mail, postage
prepaid; by common carrier delivery service; or by e-mail, facsimile, or other electronic means at the
address made available by the lender for such purpose, or through an automated system provided by the
lender for requesting an estoppel letter. The request is considered received:
Five days after the request sent by first-class mail is deposited with the United States Postal
Service;
The day the request is delivered by a common carrier delivery service; or
The day the request is sent by e-mail, facsimile, or other electronic means or through an automated
system provided by the lender for requesting an estoppel letter.
If any of the foregoing days fall on a Saturday, Sunday, or holiday, the request for an estoppel letter is
considered timely received by the lender on the next business day.
The bill also specifies the process by which an estoppel letter may be sent. The lender or servicer must
send an estoppel letter by first-class mail; by common carrier delivery service; or by e-mail, facsimile, or
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other electronic means, as directed in the written request, or through an automated system provided by the
lender for this purpose. However, the lender is not required to pay for a common carrier delivery service. If
the 10-day period after a written request is received by the lender ends on a Saturday, Sunday, or holiday,
the estoppel letter is considered timely if it is sent by the close of business on the next business day.
The bill requires the lender, within 60 days after the mortgage loan has been fully paid or paid pursuant to
the estoppel letter, to execute, have duly entered in the official records of the proper county, and send to
the mortgagor or record title owner an instrument acknowledging release of the mortgage (i.e., a
satisfaction of mortgage or a release of mortgage). The prevailing party in a civil action brought against the
lender to enforce this requirement is entitled to reasonable attorney fees and costs. The recorded release
of the mortgage does not relieve the mortgagor, or the mortgagor’s successors or assigns, from any
personal liability on the mortgage loan. In the event of a discrepancy in the amount owed on the mortgage
loan, this provision will ensure clear title to the property while maintaining the lender’s ability to recover
sums properly owed under the mortgage loan.
The bill conforms the definition of “estoppel letter” in s. 701.041, F.S., to the estoppel letter requirements in
s. 701.04, F.S.
The bill provides legislative findings relating to the importance of the timeliness and accuracy of an
estoppel letter to both the consumer and the lender.
The provisions of the bill will apply to all mortgages, and all loans secured by such mortgages, existing as
of, or entered into on or after, October 1, 2023.
The bill provides an effective date of October 1, 2023.
B. SECTION DIRECTORY:
Section 1. Amends s. 701.04, F.S., relating to cancellation of mortgages, liens, and judgments.
Section 2. Amends s. 701.041, F.S., relating to title insurer; mortgage release certificate.
Section 3. Provides legislative findings.
Section 4. Provides the bill applies to all mortgages, and all loans secured by such mortgages,
existing as of, or entered into on or after, October 1, 2023.
Section 5. Provides an effective date of October 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
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DATE: 4/6/2023
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may have an indeterminate positive fiscal impact on the private sector. The bill may lead to
smoother real estate closings to the extent that lenders provide more accurate information in estoppel
letters. In the event of a discrepancy in the amount owed on the mortgage loan, the bill will prevent
accrual of interest and potential fees while the lender and the borrower work through the issue.
Additionally, the bill will ensure clear title to the property while maintaining the lender’s ability to recover
sums properly owed under the mortgage loan.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 743 2023
1 A bill to be entitled
2 An act relating to estoppel letters; amending s.
3 701.04, F.S.; revising the timeframe within which a
4 mortgagee or mortgage servicer must send or cause to
5 be sent an estoppel letter containing specified
6 information; revising the circumstances under which a
7 copy of the instrument showing title in the property
8 or other lawful authorization must be included in a
9 request for an estoppel letter; requiring notice to
10 the mortgagor of a request for an estoppel letter
11 under certain circumstances; revising requirements for
12 an estoppel letter; prohibiting certain actions by the
13 mortgagee or mortgage servicer; authorizing the
14 mortgagee or mortgage servicer to send a corrected
15 estoppel letter under certain circumstances; requiring
16 a mortgagee or mortgage servicer to provide a copy of
17 a corrected estoppel letter to a mortgagor under
18 certain circumstances; providing that a corrected
19 estoppel letter supersedes any previous estoppel
20 letter under certain circumstances; prohibiting the
21 mortgagee or mortgage servicer from denying the
22 accuracy of certain information provided in an
23 estoppel letter under certain circumstances; providing
24 construction; prohibiting payments received pursuant
25 to an estoppel letter from being returned and
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26 requiring such payments to be promptly applied to any
27 unpaid balance of the loan properly due under or
28 secured by a mortgage; providing methods for sending a
29 written request for an estoppel letter and for sending
30 an estoppel letter; providing that the mortgagee or
31 mortgage servicer is not required to pay for a common
32 carrier delivery service; requiring the mortgagee or
33 mortgage servicer to take certain actions within a
34 specified time after the unpaid balance of a loan
35 properly secured by a mortgage has been fully paid or
36 paid pursuant to an estoppel letter; authorizing
37 reasonable attorney fees and costs for specified
38 parties in certain civil actions; providing that
39 certain persons may still be personally liable for a
40 loan or other obligation after the recording of a
41 release of a mortgage; conforming provisions to
42 changes made by the act; amending s. 701.041, F.S.;
43 revising the definition of the term "estoppel letter";
44 conforming provisions to changes made by the act;
45 providing legislative findings; providing for
46 retroactive applicability; providing an effective
47 date.
48
49 Be It Enacted by the Legislature of the State of Florida:
50
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51 Section 1. Section 701.04, Florida Statutes, is amended to
52 read:
53 701.04 Cancellation of mortgages, liens, and judgments. —
54 (1)(a) Within 10 14 days after receipt of the written
55 request of a mortgagor, a record title owner of the property, a
56 fiduciary or trustee lawfully acting on behalf of a record title
57 owner, or any other person lawfully authorized to act on behalf
58 of a mortgagor or record title owner of the property, the
59 mortgagee holder of a mortgage shall deliver or mortgage cause
60 the servicer shall send or cause to be sent of the mortgage to
61 deliver to the person making the request at a place designated
62 in the written request an estoppel letter setting forth the
63 unpaid balance of the loan secured by the mortgage. If the
64 written request is made by a person other than the mortgagor,
65 the request must include a copy of the instrument showing such
66 person's title in the property or other lawful authorization,
67 and the mortgagee or mortgage servicer must notify the mortgagor
68 of the request.
69 (a) If the mortgagor, or any person lawfully authorized to
70 act on behalf of the mortgagor, makes the request, the estoppel
71 letter must include an itemization of the principal, interest,
72 and any other charges properly due under or secured by the
73 mortgage and interest on a per-day basis for the unpaid balance.
74 (b) If a record title owner of the property, or any person
75 lawfully authorized to act on behalf of a mortgagor or record
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76 title owner of the property, makes the request:
77 1. The request must include a copy of the instrument
78 showing title in the property or lawful authorization.
79 2. The estoppel letter may include the itemization of
80 information required under paragraph (a), but must at a minimum
81 include:
82 1. The total unpaid balance of the loan due under or
83 secured by the mortgage as of the date specified in the estoppel
84 letter, including an itemization of the principal, interest, and
85 any other charges comprising the unpaid balance; and
86 2. Interest accruing on a per-day basis for the unpaid
87 balance from and after the date specified in the estoppel
88 letter, if applicable.
89 (c)1. Except for mortgages for which a notice of lis
90 pendens in a foreclosure action or a suggestion of bankruptcy
91 has been properly filed and recorded, the mortgagee or mortgage
92 servicer may not qualify, reserve the right to change, or
93 condition or disclaim the reliance of others on the information
94 provided in an estoppel letter under paragraph (b), and any
95 attempt to do so is void and unenforceable. However, if the
96 mortgagee or mortgage servicer determines that any of the
97 information provided in the estoppel letter under paragraph (b)
98 was inaccurate, the mortgagee or mortgage servicer may send a
99 corrected estoppel letter to the person who requested the
100 estoppel letter in the same manner as used to respond to the
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101 original written request. If the original written request is
102 made by a person other than the mortgagor, the mortgagee or
103 mortgage servicer must also provide a copy of any corrected
104 estoppel letter to the mortgagor.
105 2. If the person who requested the original estoppel
106 letter under paragraph (a) receives a corrected estoppel letter
107 by 3 p.m. in such person's time zone at least 1 business day
108 before a payment is issued in reliance on the previous estoppel
109 letter, the corrected estoppel letter supersedes all prior
110 estoppel letters.
111 3. If any of the information provided in the estoppel
112 letter under paragraph (b) was inaccurate, but the person who
113 requested the estoppel letter did not timely receive a corrected
114 estoppel letter as provided in subparagraph 2., the mortgagee or
115 mortgage servicer may not deny the accuracy of such information
116 as against any person who relied on it. This subparagraph does
117 not affect the right of a mortgagee to recover any sum that it
118 did not include in an estoppel letter from any person liable for
119 payment of the loan or other obligations secured by the
120 mortgage, nor does it limit any claim or defense to recovery
121 which such person may have at law or in equity on a per-day
122 basis.
123 (d)3. The mortgagee or mortgage servicer of the mortgagee
124 acting in accordance with a request in substantial compliance
125 with this subsection paragraph is expressly discharged from any
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126 obligation or liability to any person on account of the release
127 of the requested information, other than the obligation to
128 comply with the terms of the estoppel letter.
129 (e) If a payment is received at the location and in the
130 manner specified by the mortgagee or mortgage servicer, the
131 mortgagee or mortgage servicer must accept and may not return
132 any payment received in reliance on an estoppel letter and must
133 promptly apply such payment to the unpaid balance of the loan
134 properly due under or secured by the mortgage.
135 (f)1. A written request for an estoppel letter under
136 paragraph (a) must be sent to the mortgagee or mortgage servicer
137 by first-class mail, postage prepaid; by common carrier delivery
138 service; or by e-mail, facsimile, or other electronic means at
139 the address made available by the mortgagee or mortgage servicer
140 for such purpose or through an automated system provided by the
141 mortgagee or mortgage servicer for requesting an estoppel
142 letter. The written request is considered received by the
143 mortgagee or mortgage servicer:
144 a. Five business days after the request sent by first-
145 class mail is deposited with the United States Postal Service;
146 b. The day the request is delivered by a common carrier
147 delivery service; or
148 c. The day the request is sent by e-mail, facsimile, or
149 other electronic means or through an automated system provided
150 by the mortgagee or mortgage servicer for requesting an estoppel
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151 letter.
152
153 If any of the days in sub-subparagraph a., sub-subparagraph b.,
154 or sub-subparagraph c. fall on a Saturday, Sunday, or holiday
155 specified in s. 110.117(1) or the laws of the United States, the
156 request for an estoppel letter is considered timely received by
157 the mortgagee or mortgage servicer on the next business day.
158 2. The mortgagee or mortgage servicer must send an
159 estoppel letter by first-class mail, postage prepaid; by common
160 carrier delivery service; or by e-mail, facsimile, or other
161 electronic means, as directed in the written request, or through
162 an automated system provided by the mortgagee or mortgage
163 servicer for this purpose. However, the mortgagee or mortgage
164 servicer is not required to pay for a common carrier delivery
165 service. If the 10-day period after a written request is
166 received by the mortgagee or mortgage servicer ends on a
167 Saturday, Sunday, or holiday specified in s. 110.117(1) or the
168 laws of the United States, the estoppel letter is considered
169 timely if it is sent by the close of business on the next
170 business day.
171 (g)(c) Notwithstanding s. 655.059, a mortgagee or mortgage
172 servicer mortgage holder may provide the financial information
173 required under this subsection to a person authorized under this
174 subsection to request the financial information notwithstanding
175 s. 655.059.
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176 (2)(a) Within 60 days after the unpaid balance of a loan
177 secured by a mortgage has been fully paid or paid pursuant to an
178 estoppel letter under subsection (1), whichever is earlier, the
179 mortgagee or mortgage servicer shall execute in writing an
180 instrument acknowledging release of the mortgage; have the
181 instrument acknowledged, or proven, and send it or cause it to
182 be sent for recording in the official records of the proper
183 county; and send or cause to be sent the recorded release to the
184 mortgagor or record title owner of the property. The prevailing
185 party in a civil action brought against the mortgagee or
186 mortgage servicer to enforce the requirements of this paragraph
187 is entitled to reasonable attorney fees and costs.
188 (b) The recorded release of the mortgage does not relieve
189 the mortgagor, or the mortgagor's successors or assigns, from
190 any personal liability on the loan or other obligations
191 previously secured by the mortgage.
192 (3)(2) Within 60 days after the unpaid balance Whenever
193 the amount of money due on a any mortgage, lien, or judgment has
194 been fully paid to the person or party entitled to the payment
195 thereof, the mortgagee, creditor, or assignee, or the attorney
196 of record in the case of a judgment, to whom the payment was
197 made, shall execute in writing an instrument acknowledging
198 satisfaction of the mortgage, lien, or judgment; and have the
199 instrument acknowledged, or proven, and send it or cause it to
200 be sent for recording duly entered in the official records of
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201 the proper county; and. Within 60 days after the date of receipt
202 of the full payment of the mortgage, lien, or judgment, the
203 person required to acknowledge satisfaction of the mortgage,
204 lien, or judgment shall send or cause to be sent the recorded
205 satisfaction to the person who has made the full payment. In the
206 case of a civil action arising out of this section, The
207 prevailing party in a civil action brought against the creditor
208 or assignee, or the attorney of record in the case of a
209 judgment, to enforce the requirements of this subsection is
210 entitled to reasonable attorney fees and costs.
211 (4)(3) When Whenever a writ of execution has been issued,
212 docketed, and indexed with a sheriff and the judgment upon which
213 it was issued has been fully paid, it is the responsibility of
214 the person party receiving payment to request, in writing,
215 addressed to the sheriff, return of the writ of execution as
216 fully satisfied.
217 Section 2. Paragraph (a) of subsection (1) and subsection
218 (2) of section 701.041, Florida Statutes, are amended to read:
219 701.041 Title insurer; mortgage release certificate. —
220 (1) DEFINITIONS.—For purposes of this section:
221 (a) "Estoppel letter" means a statement containing, at a
222 minimum, the information required in s. 701.04(1)(b) of the
223 amount of:
224 1. The unpaid balance of a loan secured by a mortgage,
225 including principal, interest, and any other charges properly
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226 due under or secured by the mortgage.
227 2. Interest on a per-day basis for the unpaid balance.
228 (2) CERTIFICATE OF RELEASE.—An officer or duly appointed
229 agent of a title insurer may, on behalf of a mortgagor or a
230 person who acquired from the mortgagor title to all or a part of
231 the property described in a mortgage, execute a certificate of
232 release that complies with the requirements of this section and
233 record the certificate of release in the real property records
234 of each county in which the mortgage is recorded if a
235 satisfaction or release of the mortgage has not been executed
236 and recorded after the date payment in full of the loan properly
237 due under or secured by the mortgage was made in accordance with
238 an estoppel letter a payoff statement furnished by the mortgagee
239 or the mortgage servicer.
240 Section 3. The Legislature finds that the timeliness and
241 accuracy of an estoppel letter is critical because the parties
242 to a real estate transaction must rely on the estoppel letter to
243 establish the loan payoff amount necessary to release the
244 mortgage, which in turn will allow the owner to confer clean
245 title to a buyer or to refinance the property. The Legislature
246 further finds that estoppel letters increasingly contain
247 conditional language disclaiming the ability of an owner to rely
248 on the stated loan payoff amounts, extending even to the return
249 of such payments submitted by owners. These practices create
250 unnecessary delays in the efficient operation of this state's
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251 real estate market, which is a vital economic contributor to
252 this state, and impose needless costs and burdens on property
253 owners and buyers. In addition, the Legislature finds that real
254 estate lending, mortgages, real estate transactions, and
255 estoppel letters are extensively regulated under both Florida
256 and federal law. The Legislature finds and determines that this
257 act makes changes to state law which appropriately balance the
258 parties' interests, are reasonable and necessary to serve and
259 achieve an important state interest, are necessary for the
260 prosperity and welfare of the state and its property owners and
261 inhabitants, and must be applied to existing mortgages in order
262 to provide effective relief.
263 Section 4. This act applies to all mortgages, and all
264 loans secured by such mortgages, existing as of, or entered into
265 on or after, October 1, 2023.
266 Section 5. This act shall take effect October 1, 2023.
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CS/HB 745
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 745 Emergency Communications
SPONSOR(S): Energy, Communications & Cybersecurity Subcommittee, McFarland
TIED BILLS: IDEN./SIM. BILLS: SB 1418
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Energy, Communications & Cybersecurity 17 Y, 0 N, As CS Walsh Keating
Subcommittee
2) State Administration & Technology 13 Y, 0 N Helpling Topp
Appropriations Subcommittee
3) Commerce Committee Walsh Hamon
SUMMARY ANALYSIS
The Division of Telecommunications (Division) within the Department of Management Service (DMS) is the
state entity responsible for developing, maintaining, planning, and implementing a statewide E911 system. The
secretary of DMS, or his or her designee, acts as the director of the system and is authorized to coordinate the
activities of the system with state, county, local, and private agencies.
The system director also serves as chair of the state’s E911 Board, an 11-member body that administers funds
derived from fees imposed on each user of voice communications services in Florida.
To fund Florida’s E911 system, voice communications services providers collect a fee from their customers on
a service identifier basis (e.g., from each active phone line or number with access to the E911 system). All
collected fees are deposited into the Emergency Communications Number E911 System Fund, which is
segregated into three categories (wireless, prepaid wireless, and non-wireless) and distributed as provided by
law to counties and wireless service providers.
The next progression in E911 systems is referred to as Next Generation 911 (NG911). Funds distributed by the
E911 Board support routine, ongoing service and maintenance costs of equipment and networks, but do not
cover all costs to upgrade systems and implement NG911 technologies.
The bill modifies the powers, duties, and composition of the E911 Board, which is renamed as the Emergency
Communications Board (Board), and expands the list of items that may be funded with E911 fee
disbursements. The bill modifies the statutory allocation of E911 fee revenues in the wireless category to more
closely match the actual allocation approved by the Board and eliminates the small remaining allocation to
wireless service providers.
The bill may have an indeterminate positive fiscal impact to the state and a minimal fiscal impact on local
governments and the private sector. See Fiscal Analysis & Economic Impact Statement.
The bill provides an effective date of July 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
Since 1974, Florida law has designated the telephone number “911” as the state’s emergency
communications number to provide rapid direct access to public safety agencies. 1 In 1999, the concept
of “Enhanced 911” or “E911” service was established in Florida law to describe 911 service provided to
wireless telephone users.2 Today, under the Emergency Communications Number E911 Act, 3 the term
“E911,” as used in Florida law, refers more broadly to an enhanced 911 system or service that provides
any user of voice communications services 4 with 911 service. E911 service directs calls to appropriate
public safety answering points (PSAPs) 5 by selective routing based on the geographical location from
which a 911 call originated and provides for automatic number and location identification. 6
The next progression in E911 systems is referred to as Next Generation 911 (NG911). According to the
E911 Board’s 2021 Annual Report, NG911 requires a total replacement of legacy 911 systems with
Internet Protocol (IP) networks and core services. NG911 includes IP-based 911 call routing systems,
geographic information systems, and management information systems to be implemented statewide
with interconnectivity among systems and across jurisdictional boundaries. An NG911 call routing
system is designed to handle voice, data, text and video on a standardized IP-based platform.7
Governance
The Division of Telecommunications (Division) within the Department of Management Service (DMS) is
the state entity responsible for developing, maintaining, and implementing a statewide E911 system
plan. The secretary of DMS or his or her designee acts as the director of the system and is authorized
to coordinate the activities of the system with state, county, local, and private agencies . The system
director must consult, cooperate, and coordinate with local law enforcement agencies. 8
The system director also serves as chair of the state’s E911 Board, an 11-member body that
administers funds derived from fees imposed on each user of voice communications services with a
Florida billing address (place of primary use). The remaining 10 members are appointed by the
Governor. Five members must be county 911 coordinators, including one from a rural county, one from
a medium county, one from a large county, and two at-large representatives recommended by the
Florida Association of Counties in consultation with the county 911 coordinators. The other five
members represent the telecommunications industry, including three representatives of local exchange
companies and two representatives of the wireless industry. Members are appointed to staggered 4-
year terms, subject to a limit of two successive terms. 9
Funding
1 Ch. 74-357, L.O.F.
2 See Ch. 99-367, L.O.F.
3 Ch. 2007-78, L.O.F.
4
S. 365.172, F.S., defines “voice communications services” as “two -way voice service, through the use of any technology, which
actually provides access to E911 services, and includes communications services, as defined in s. 202.11, which actually provide
access to E911 services and which are required to be included in the provision of E911 services pursuant to orders and rules adopted
by the Federal Communications Commission. The term includes voice -over-Internet-protocol service. …”
5 S. 365.172, F.S., defines a “public safety answering point” as “the public safety agency that receives incoming 911 requests for
assistance and dispatches appropriate public safety agencies to respond to the requests in accordance with the state E911 pla n.”
6 E911 service provided by a wireless provider is subject to orders and rules of the Federal Communications Commission. See s.
365.172(3)(h) and (t), F.S.
7 Florida Department of Management Services, 2021 E911 Board Annual Report, at p. 9-10, available at
https://www.dms.myflorida.com/content/download/155677/1033501/E911BoardAnnualReportFor20202021final_2.28.2022.pdf (last
visited March 3, 2023).
8 S. 365.171(4) and (5), F.S.
9 S. 365.172(5), F.S.
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To fund Florida’s E911 system, voice communications services providers (providers) collect a fee from
their customers on a service identifier basis (e.g., from each active phone line or number with access to
the E911 system). The fee is imposed upon local exchange services, prepaid and billed wireless
services, and other voice communications services that have access to E911 service, such as Voice
over Internet Protocol.10 Sellers of prepaid wireless services (sellers) must collect this fee from
customers with each retail transaction in the state.11 The fee is currently set at a uniform statewide rate
of 40 cents per month for each service identifier.12 The E911 Board is authorized to adjust the fee as
necessary to ensure full recovery of the costs incurred by counties and wireless service providers to
provide E911 service and to prevent over-recovery of those costs, subject to a cap of 50 cents per
month for each service identifier.13,14
All collected fees are deposited into the Emergency Communications Number E911 System Fund,
which is segregated into three categories: wireless, prepaid wireless, and non-wireless.15 Three percent
of the funds in each category is distributed by the E911 Board to rural counties to provide facilities and
network and service enhancements and assistance for their 911 or E911 systems and for grants to
rural counties to upgrade and replace E911 systems. Further, the E911 Board may retain no more than
one percent of the funds from each category to cover its administrative costs. For Fiscal Year (FY)
2020-2021, the E911 Board distributed the remaining 96 percent of funds to counties and wireless
providers as follows:16
Wireless Category
o 94.75 percent to counties for authorized expenditures and costs to comply with FCC
requirements for E911 service (funds allocated by county based on total number of
service identifiers in each county)
o An additional 1 percent to rural county grants
o 0.25 percent to wireless service providers for reimbursement of actual costs to provide
911 or E911 service and costs to comply with FCC requirements for E911 service 17
Prepaid Wireless Category
o 61 percent to counties for authorized expenditures (funds allocated by county based on
total amount of fees reported and paid in each county)
o 35 percent for statewide grants awarded by the E911 Board18
Non-Wireless Category
o 96 percent to counties for authorized expenditures (funds allocated by county based on
total number of service identifiers in each county
The E911 Board’s 2021 Annual Report states that, for FY 2020-2021, the allocation from the wireless
category to wireless service providers was decreased from 8 percent down to 0.25 percent due to a
10 S. 365.172(8), F.S.
11 S. 365,172(9), F.S. Collection is optional for prepaid wireless service sales of 10 minutes or less or $5 or less.
12
S. 365.172(8), F.S. In counties that, before July 1, 2007, had adopted an ordinance or resolution establishing a fee less tha n 50 cents
per month per line, the applicable rate may be higher than 40 cents per month, but any future changes must be consistent with t he
uniform statewide rate. Those counties are Duval (44 cents per month), Lee (44 cents per month), and Volusia (41 cents per mo nth).
Florida Department of Management Service, supra note 5, at 7.
13 Id.
14
The statutory fee cap of 50 cents per month has remained unchanged since its adoption in 1985. See Ch. 85-317, L.O.F.
15 S. 365.172(3)(k), (8)(d), and (9)(i); s. 365.173(1)(c), F.S. Each provider may retain 1 percent of collected fees as reimbursement for
its administrative costs to bill, collect, and remit the fee. Each seller of prepaid wireless service may retain 5 percent of collected fees as
a collection allowance. Fees collected from prepaid wireless service are remitted to the Department of Revenue, which may retain up to
3.2 percent of remitted fees to reimburse its direct costs to administer collection and remittance of the fees.
16 S. 365.173 (2), F.S., specifies the allocation of these funds but authorizes the E911 Board to modify allocations if necessary to
ensure full cost recovery or prevent over-recovery of costs incurred in the provision of E911 service. The allocations presented above
are based on the E911 Board’s 2021 Annual Report, supra note 6.
17 The E911 Board may use, as needed, undisbursed funds from the allotment to wireless service providers to provide grants to
counties for purposes of upgrading E911 systems. S. 365.172(6)(a)3.b., F.S.
18 Grants awarded with these funds are prioritized as follows: first, for counties to upgrade or replace E911 systems; next, for counties
to develop and maintain statewide 911 routing, geographic, and management information systems; last, for counties to develop and
maintain next-generation 911 services and equipment. S. 365.173(h), F.S.
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decrease in the need for reimbursements to those providers. As a result, the allocation to counties
increased by 6.75 percent, and the remaining 1 percent was allocated to rural county grants.
Authorized expenditures include all costs directly attributable to the establishment or provision of E911
service and contracting for E911 services. Specifically, these costs include the acquisition,
implementation, and maintenance of PSAP equipment and E911 service features, as defined in voice
communications services providers’ published schedules, or the acquisition, installation, and
maintenance of other E911 equipment, including:
Circuits
Call answering equipment
Call transfer equipment
ANI or ALI controllers
ANI or ALI displays
Station instruments
E911 telecommunications systems
Visual call information and storage devices
Recording equipment
Telephone devices and other equipment for the hearing impaired used in the E911 system
PSAP backup power systems
Consoles
Automatic call distributors, and interfaces, including hardware and software, for computer-aided
dispatch (CAD) systems
Integrated CAD systems for that portion of the systems used for E911 call taking
GIS system and software equipment and information displays
Network clocks
Salary and associated expenses for E911 call takers for that portion of their time spent taking
and transferring E911 calls, salary, and associated expenses for a county to employ a full-time
equivalent E911 coordinator position and a full-time equivalent mapping or geographical data
position, and technical system maintenance, database, and administration personnel for the
portion of their time spent administrating the E911 system
Emergency medical, fire, and law enforcement prearrival instruction software
Charts and training costs
Training costs for PSAP call takers, supervisors, and managers in the proper methods and
techniques used in taking and transferring E911 calls
Costs to train and educate PSAP employees regarding E911 service or E911 equipment,
including fees collected by the Department of Health for the certification and recertification of
911 public safety telecommunicators as required under s. 401.465, F.S.
Expenses required to develop and maintain all information, including ALI and ANI databases
and other information source repositories, necessary to properly inform call takers as to location
address, type of emergency, and other information directly relevant to the E911 call-taking and
transferring function
Next-generation E911 network services, next-generation E911 database services, next-
generation E911 equipment, and wireless E911 routing systems
For FY 2020-2021, the E911 Board disbursed a total of $121.3 million. Of that amount, $104.8 million
was disbursed to counties, $1.14 million was disbursed to wireless service providers, and $2 million
was retained to cover the operation and administration of the E911 Board. The remaining $13.36
million was disbursed to counties as grants and supplemental disbursements.19
Status of Statewide E911, NG-911, and Text-to-911 Services
All 67 counties in Florida maintain and upgrade non-wireless and wireless E911 systems. Funds
distributed by the E911 Board support routine, ongoing service and maintenance costs of equipment
19 Florida Department of Management Services, supra note 7, at 8.
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and networks, but do not cover all costs to upgrade systems and implement NG911 technologies. In
2021, fee revenue, special disbursements, and grants funded 44 percent of counties’ total expenses. 20
An early step toward NG911 is the provision of Text-to-911 service, which uses Short Message Service
(SMS) to allows citizens who cannot hear or speak to gain access to 911 without the requirement of
special equipment or subscription to relay services for the hearing and speech impaired. As of
December 31, 2021, 85 percent of Florida counties (57 of 67), offered Text-to-911 service, with the
remainder estimated to be completed in 2022.21
According to the E911 Board, some of the more progressive and financially capable counties in the
state have already either started the NG911 planning for their counties or have begun the transition to
NG-911 ready systems and networks without grant or supplemental funding sources. Some counties
are taking advantage of E911 State Grant opportunities to initiate the NG911 transition.
Effect of the Bill
The bill modifies the powers, duties, and composition of the E911 Board, which is renamed as the
Emergency Communications Board (Board), and expands the list of items that may be funded with
E911 fee disbursements. The bill modifies the statutory allocation of E911 fee revenues in the wireless
category to more closely match the actual allocation approved by the Board and eliminates the small
remaining allocation to wireless service providers.
The bill amends the short title of s. 365.172, F.S., to reflect a move away from using the term “E911” in
statute, by renaming the section the “Emergency Communications Act” (Act). The bill further reflects
this change by replacing or striking language referencing “E911” throughout ss. 365.171-365.174, F.S.,
s. 365.177, F.S., and s. 212.05965, F.S.
The bill modifies the legislative intent of the Act. Per the changes in the bill, it is the intent of the
Legislature that the Act:
Establish and implement statewide emergency communications and response capabilities using
modern technologies and methods;
Provide funds to counties and state agencies that operate 911 centers for the costs of public
safety and emergency response capabilities and costs incurred to purchase, upgrade, and
maintain 911, computer aided dispatch, and interoperable radio communications systems;
Levy a reasonable fee on users of voice communications services to accomplish these
purposes;
Provide for an Emergency Communications Board that is competitively and technologically
neutral as to all communications services providers, not just voice communications services
providers; and
Ensure that the fee established by the Act for emergency communications systems is used
exclusively by counties and state agencies that operate 911 centers.
The bill modifies the powers, duties, and composition of the newly renamed Emergency
Communications Board (Board). The bill states that the Board, with oversight by the Division of
Telecommunications (Division), is established to:
Administer governance for how emergency infrastructure and information are handled from
receipt at a PSAP and routing to first responders;
Create a financial model for the state government and local governments to use existing
revenue sources to invest in public safety communication and technology for first responders;
and
Administer a financially stable model of public safety communications and technology that will
benefit the state government, local government, residents, and visitors.
20 Id., at 9, 15.
21 Id.
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The bill specifies that the public safety funding administered by the board is not limited to, but must
focus on:
Next Generation 911 (NG911);22
Emergency Services IP Network (ESInet);
Computer Aided Dispatch (CAD);23
Interfaces, including Land Mobile Radio (LMR), Smart City Technology,24 and In-Building
Coverage;
Public Safety Broadband Networks; and
Cybersecurity.
The bill revises the structure of the Board, by reducing the number of Board members from eleven to
nine, one of whom must be the system director. The bill states that the remaining eight members of the
Board must be Florida residents and appointed by the Governor. The bill provides that consideration
should be given for members from rural, medium, and large counties from a broad range of fields,
including, but not limited to, experience in law enforcement, fire response, emergency medical services,
911 coordination, public safety dispatch, and telecommunications. The bill updates how the Governor
may initially appoint members, by staggering the terms for which the initial Board members may be
appointed.
Under the bill, the Board is given the additional responsibility of ensuring the interoperability of and
connectivity between public safety communication systems within the state, such as:
Call routing accuracy and timeliness of response;
Improved interagency communication and situational awareness;
Improved interagency connectivity;
Improved response times;
Maximized use of emerging technologies;
Improved lifecycle management of the emergency response systems, equipment, and services
that enable public safety officials to share information securely;
Policy and procedure across public safety agencies; and
Resilient, and secure emergency communication systems to reduce cybersecurity threats and
vulnerabilities.
The bill provides that the Board may create subcommittees to advise the Board as needed.
The bill specifies that the Board may establish a schedule for implementing NG911 systems, public
radio communications systems, and other public safety radio communications improvements. The bill
authorizes the Board to prioritize disbursement of revenues pursuant to the established schedule in
order to implement 911 services in the most efficient and cost-effective manner.
Under the current law, the Board must establish a committee to review requests for proposals. The bill
removes the requirement that the committee include two members of the board, one of which is a
county 911 coordinator and one of which represents a voice communications services providers.
22 The bill defines “Next Generation 911” or “NG911” as an Internet Protocol (IP) -based system comprised of:
• Managed Emergency Services IP networks (ESInets);
• Functional elements (applications); and
• Databases that replicate traditional E911 features and functions and provide additional capabilities.
The bill further clarifies that the NG911 system is “designed to provide access to emergency services from all connected
communications sources and provide multimedia data capabilities for Public Safety Answering Points (PSAPs) and other emergenc y
service organizations.”
23 The bill defines “Computer Aided Dispatch” or “CAD” as “a computerized system for entering, tracking, dispatching, and resolving
requests for public safety services.”
24 Smart city technology refers to technology, including sensors, that a city uses to collect data for resource management; exa mples
include: smart parking spots, water conservation technology, smart traffic system management, and adaptable buildings. Smart City
Technologies That Could Soon Change The Way We Live And Work , Forbes (Jul. 27, 2022),
https://www.forbes.com/sites/forbestechcouncil/2022/07/27/smart-city-technologies-that-could-soon-change-the-way-we-live-and-
work/?sh=1a2c97371be0 (last visited Apr. 5, 2023).
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Per the bill, the Board is also responsible for administering the Public Safety Emergency
Communications Systems Fee (formerly the “E911” fee), including receiving revenues, distributing
portions of the revenues, accounting for the moneys maintained in the fund, and providing annual
reports for review and submission to the Governor and the Legislature.
The bill states that before the Board distributes revenue from the fund, it must provide 90 days’ written
notice to all counties and state agencies that operate 911 centers, and publish electronically an
approved application process. The bill provides means by which county applications must be prioritized,
which shall be based on the availability of funds, current system life expectancy, and system
replacement needs. The board must, within its authority, ensure that county recipients of the funds use
the funds only for the purpose for which they were provided. If the Board determines that the funds
were not used for the purpose for which they were provided, the Board may, within its authority, secure
county repayment of such funds.
The bill specifies that the Board must meet quarterly to review and authorize the schedule of fee
allocation transfers and distributions to the counties and state agencies that operate 911 centers.
The bill strikes the following provisions under current law related to the Public Safety Emergency
Communications Systems Fee:
A county that before July 1, 2007, had a adopted an ordinance or resolution establishing a fee
of less than 50 cents per month per access line is an exception to the requirement that the fee
of 40 cents per month be applied uniformly and throughout the state; and
The requirement that when the Board sets percentages or contemplates any adjustments to the
fee, that the Board consider revenues currently allocated for wireless service provider costs for
implementing E911 service and projected costs for implementing E911 service, including
recurring costs for Phase I and Phase II and the effect of new technologies.
For the purposes of the fees, the bill states that emergency communications and 911 service include
the functions relating to the receipt and transfer of requests for emergency assistance, of database
management, call taking, and location verification. The bill also updates the list of costs that are eligible
for expenditure of moneys derived from imposition of the fee, and requires that these costs be
attributable to emergency communications equipment and services related to a primary or secondary
public safety answering point. These costs now include:
NG911 telecommunications systems;
Emergency Services IP Network ESInet;
Automatic call distributors,
Interfaces, including hardware and software, for CAD systems, public safety land mobile radio
systems (LMR) and radios consoles that provide two-way communication with responders, and
in-building coverage;
Cybersecurity, including hardware, software, and services;
Salary associated with expenses for all 911 call takers and emergency dispatchers;
Training costs for dispatchers in proper methods and techniques used in taking and transferring
911 calls;
Costs to train and educate employees regarding 911 radio service or NG911 equipment; and
Expenses required to develop and maintain all databases and information source repositories
necessary to properly inform call takers as to smart city technology data, public safety
broadband networks, and other information directly relevant to the processing of a request for
emergency assistance.
The bill further clarifies that money from the fee may not be used for costs for utilities.
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The bill modifies the statutory allocation of fee revenues in the wireless category by providing that:
Ninety-four of the funds shall be distributed each month to counties, based on the total number
of service identifiers in each county and shall be used exclusively for payment of authorized
expenditures;
One percent of the funds shall be distributed to state agencies that operate 911 centers and
shall be used exclusively for authorized expenditures;
An additional one percent of the funds shall be used to make monthly distributions to rural
counties for certain purposes; and
The Board will no longer transfer twenty percent of the funds to wireless providers for the cost of
operating 911 or E911 services.
Lastly, the bill provides that the Division shall develop a new plan by December 30, 2023, to upgrade
911 public safety answering points within the state to allow the transfer of an emergency call from one
local, multijurisdictional, or regional E911 system to another local, multijurisdictional, or regional E911
system in the state.
The bill provides an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1. Amends s. 365.172, F.S., relating to emergency communications.
Section 2. Amends s. 365.173, F.S., relating to Emergency Communications Fund.
Section 3. Amends s. 365.177, F.S., relating to transfers of E911 calls between systems.
Section 4. Amends s. 212.05965, F.S., relating to taxation of marketplace sales.
Section 5. Amends s. 365.171, F.S., relating to emergency communications state plan.
Section 6. Amends s. 365.174, F.S., relating to proprietary confidential business information.
Section 7. Provides an effective date of July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
The bill may increase revenues to state agencies to the extent that funds are transferred for the
operation of state 911 call centers.
2. Expenditures:
The bill authorizes public safety emergency communications fees to be used by state agencies that
have 911 call centers to pay for costs associated with public safety emergency response
capabilities and costs incurred to purchase, upgrade, and maintain 911 systems, computer aided
dispatch, and systems to create interoperable radio communications systems.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
Three counties (Duval, Lee, and Volusia) will see a slight reduction in fee revenues from their Local
Exchange Carriers (LECs). Currently Duval and Lee receive $0.44 and Volusia $0.41 per
subscriber from their LECs and $0.40 from VoIP, wireless and prepaid providers. All other counties
receive $0.40 across the board. This legislation will bring Duval, Lee, and Volusia counties into
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alignment with the rest of the state. The decrease in revenue for these counties will be mitigated by
the increase of wireless and VoIP subscribers as LEC subscribers upgrade to newer technology. 25
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Wireless carries may see a small decrease in funds used for 911 implementation.
FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
The bill indicates that the Board is established to “[a]dminister governance for how emergency
infrastructure and information, such as voice, text, data, and images, are handled from receipt at a
PSAP and routing to first responders”. This language is ambiguous as to whether the Board must adopt
policies, enforce them, or both. The bill also states that the Board is established to “[a]dminister a
financially sustainable model dedicated to public safety communications and technology . . .” The bill
does not indicate what type of model is contemplated. An amendment is anticipated to address these
concerns.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 7, 2023, the Energy, Communications & Cybersecurity Subcommittee adopted a strike-all
amendment and reported the bill favorably as a committee substitute. The amendment:
Corrects obsolete references to “E911;”
Clarifies the services on which public safety funding must be focused;
Changes the number of Board members and refines the criteria and process for Board member
appointment;
Requires that the Board notify state agencies that operate 911 centers of an approved application
process for funding;
Reinserts the following provisions:
o Providers are not obligated to take legal action to enforce collecting the public safety
emergency communications systems fee (fee) from customers, and
25 Florida Department of Management Services, Agency Analysis of 2023 HB 745, p. 5, (March 15, 2023).
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o A county subscribing to 911 service remains liable for charges owed to the provider
delivering the 911 service or equipment;
Clarifies that services related to a primary or secondary PSAP are eligible for funds derived from
the fee;
Updates the following items eligible to receive funds derived from the fee:
o Types of radios, and
o Types of databases and other information source repositories;
Changes the percentage of funds in the wireless category to be distributed each month to counties
to ninety-four percent;
Requires one percent of the funds in the wireless category to be distributed to state agencies that
operate 911 centers; and
Clarifies that distributed funds shall be used for authorized expenditures.
This analysis is drafted to the committee substitute as passed by the Energy, Communications &
Cybersecurity Subcommittee.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 745 2023
1 A bill to be entitled
2 An act relating to emergency communications; amending
3 s. 365.172, F.S.; revising short title; revising
4 legislative intent; revising and providing
5 definitions; renaming the E911 Board as the Emergency
6 Communications Board; providing the purpose of the
7 board; revising the composition of the board;
8 establishing board responsibilities; requiring the
9 board to administer fees; authorizing the board to
10 create subcommittees; authorizing the board to
11 establish schedules for implementing certain wireless
12 systems and improvements; establishing notice and
13 publication requirements before distribution of
14 revenues; providing for priority of county
15 applications for funds; requiring board oversight of
16 such funds; eliminating certain authority of the
17 board; providing for the board's authority to
18 implement changes to the allocation percentages or to
19 adjust the fee; revising the frequency of board
20 meetings and the business to be conducted at such
21 meetings; revising the composition of a committee that
22 reviews requests for proposals from the board
23 regarding independent accounting firm selection;
24 revising provisions relating to the public safety
25 emergency communications systems fee; requiring
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26 uniform application and imposition of the fee;
27 revising the factors that the board considers when
28 setting percentages or contemplating adjustments to
29 the fee; updating provisions relating to the prepaid
30 wireless public safety emergency communications
31 systems fee; revising emergency communications and 911
32 service functions; revising the types of emergency
33 communications equipment and services that are
34 eligible for expenditure of moneys derived from the
35 fee; amending s. 365.173, F.S.; renaming the
36 Communications Number E911 System Fund as the
37 Emergency Communications Fund; revising the percent
38 distribution of the fund to be used exclusively for
39 payment of certain authorized expenditures; removing
40 the percent distribution of wireless providers; adding
41 a specified percent distribution to rural counties;
42 amending s. 365.177, F.S.; extending the date by which
43 the Division of Telecommunications within the
44 Department of Management Services must develop a plan
45 to upgrade 911 public safety answering points;
46 amending ss. 212.05965, 365.171, and 365.174, F.S.;
47 conforming provisions to changes made by the act;
48 providing an effective date.
49
50 Be It Enacted by the Legislature of the State of Florida:
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51
52 Section 1. Section 365.172, Florida Statutes, is amended
53 to read:
54 365.172 Emergency communications. number "E911."—
55 (1) SHORT TITLE.—This section may be cited as the
56 "Emergency Communications Number E911 Act."
57 (2) LEGISLATIVE INTENT.—It is the intent of the
58 Legislature to:
59 (a) Establish and implement a comprehensive statewide
60 emergency communications and response capability using modern
61 technologies and methods. telecommunications number system that
62 will provide users of voice communications services within the
63 state rapid direct access to public safety agencies by accessing
64 the telephone number "911."
65 (b) Provide funds to counties and state agencies that
66 operate 911 centers to pay certain costs associated with their
67 public safety emergency response capabilities and costs incurred
68 to purchase, upgrade, and maintain 911 systems, computer aided
69 dispatch, and systems to create interoperable radio
70 communications systems E911 or 911 systems, to contract for E911
71 services, and to reimburse wireless telephone service providers
72 for costs incurred to provide 911 or E911 services.
73 (c) Levy a reasonable fee on users of voice communications
74 services, unless otherwise provided in this section, to
75 accomplish these purposes.
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76 (d) Provide for an Emergency Communications Board E911
77 board to administer the fee, with oversight by the office, in a
78 manner that is competitively and technologically neutral as to
79 all voice communications services providers.
80 (e) Ensure that the fee established for emergency
81 communications systems is used exclusively for recovery by
82 wireless providers and by counties and state agencies that
83 operate 911 centers for costs associated with developing and
84 maintaining emergency communications E911 systems and networks
85 in a manner that is competitively and technologically neutral as
86 to all voice communications services providers.
87
88 It is further the intent of the Legislature that the fee
89 authorized or imposed by this section not necessarily provide
90 the total funding required for establishing or providing
91 emergency communications systems and services E911 service.
92 (3) DEFINITIONS.—Only as used in this section and ss.
93 365.171, 365.173, 365.174, and 365.177, the term:
94 (a) "Authorized expenditures" means expenditures of the
95 fee, as specified in subsection (10).
96 (b) "Automatic location identification" means the
97 capability of the E911 service which enables the automatic
98 display of information that defines the approximate geographic
99 location of the wireless telephone, or the location of the
100 address of the wireline telephone, used to place a 911 call.
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101 (c) "Automatic number identification" means the capability
102 of the E911 service which enables the automatic display of the
103 service number used to place a 911 call.
104 (d) "Board" or "Emergency Communications Board" "E911
105 Board" means the board of directors of the E911 Board
106 established in subsection (5).
107 (e) "Building permit review" means a review for compliance
108 with building construction standards adopted by the local
109 government under chapter 553 and does not include a review for
110 compliance with land development regulations.
111 (f) "Collocation" means the situation when a second or
112 subsequent wireless provider uses an existing structure to
113 locate a second or subsequent antennae. The term includes the
114 ground, platform, or roof installation of equipment enclosures,
115 cabinets, or buildings, and cables, brackets, and other
116 equipment associated with the location and operation of the
117 antennae.
118 (g) "Computer Aided Dispatch" or "CAD" means a
119 computerized system for entering, tracking, dispatching, and
120 resolving requests for public safety services.
121 (h)(g) "Designed service" means the configuration and
122 manner of deployment of service the wireless provider has
123 designed for an area as part of its network.
124 (i)(h) "Enhanced 911" or "E911" means an enhanced 911
125 system or enhanced 911 service that is an emergency telephone
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126 system or service that provides a subscriber with 911 service
127 and, in addition, directs 911 calls to appropriate public safety
128 answering points by selective routing based on the geographical
129 location from which the call originated, or as otherwise
130 provided in the state plan under s. 365.171, and that provid es
131 for automatic number identification and automatic location -
132 identification features. The 911 E911 service provided by a
133 wireless provider means E911 as defined in the order.
134 (j)(i) "Existing structure" means a structure that exists
135 at the time an application for permission to place antennae on a
136 structure is filed with a local government. The term includes
137 any structure that can structurally support the attachment of
138 antennae in compliance with applicable codes.
139 (k)(j) "Fee" or "public safety emergency communications
140 systems fee" means the E911 fee authorized and imposed under
141 subsections (8) and (9).
142 (l)(k) "Fund" means the Emergency Communications Number
143 E911 System Fund established in s. 365.173 and maintained under
144 this section for the purpose of recovering the costs associated
145 with providing emergency communications 911 service or E911
146 service, including the costs of implementing the order. The fund
147 shall be segregated into wireless, prepaid wireless, and
148 nonwireless categories.
149 (m)(l) "Historic building, structure, site, object, or
150 district" means any building, structure, site, object, or
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151 district that has been officially designated as a historic
152 building, historic structure, historic site, historic object, or
153 historic district through a federal, state, or local designation
154 program.
155 (n)(m) "Land development regulations" means any ordinance
156 enacted by a local government for the regulation of any aspect
157 of development, including an ordinance governing zoning,
158 subdivisions, landscaping, tree protection, or signs, the local
159 government's comprehensive plan, or any other ordinance
160 concerning any aspect of the development of land. The term does
161 not include any building construction standard adopted under and
162 in compliance with chapter 553.
163 (o)(n) "Local exchange carrier" means a "competitive local
164 exchange telecommunications company" or a "local exchange
165 telecommunications company" as defined in s. 364.02.
166 (p)(o) "Local government" means any municipality, county,
167 or political subdivision or agency of a municipality, county, or
168 political subdivision.
169 (q)(p) "Medium county" means any county that has a
170 population of 75,000 or more but less than 750,000.
171 (r)(q) "Mobile telephone number" or "MTN" means the
172 telephone number assigned to a wireless telephone at the time of
173 initial activation.
174 (s) "Next Generation 911" or "NG911" means an Internet
175 Protocol(IP)-based system comprised of managed Emergency
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176 Services IP networks (ESInets), functional elements
177 (applications), and databases that replicate traditional E911
178 features and functions and provides additional capabilities. The
179 NG911 system is designed to provide access to emergency services
180 from all connected communications sources and provide multimedia
181 data capabilities for Public Safety Answering Points (PSAPs) and
182 other emergency service organizations.
183 (t)(r) "Nonwireless category" means the revenues to the
184 fund received from voice communications services providers other
185 than wireless providers.
186 (u)(s) "Office" means the Division of Telecommunications
187 within the Department of Management Services, as designated by
188 the secretary of the department.
189 (v)(t) "Order" means:
190 1. The following orders and rules of the Federal
191 Communications Commission issued in FCC Docket No. 94 -102:
192 a. Order adopted on June 12, 1996, with an effective date
193 of October 1, 1996, the amendments to s. 20.03 and the creation
194 of s. 20.18 of Title 47 of the Code of Federal Regulations
195 adopted by the Federal Communications Commission pursuant to
196 such order.
197 b. Memorandum and Order No. FCC 97-402 adopted on December
198 23, 1997.
199 c. Order No. FCC DA 98-2323 adopted on November 13, 1998.
200 d. Order No. FCC 98-345 adopted December 31, 1998.
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201 2. Orders and rules subsequently adopted by the Federal
202 Communications Commission relating to the provision of 911
203 services, including Order Number FCC-05-116, adopted May 19,
204 2005.
205 (w)(u) "Prepaid wireless category" means all revenues in
206 the fund received through the Department of Revenue from the fee
207 authorized and imposed under subsection (9).
208 (x)(v) "Prepaid wireless service" means a right to access
209 wireless service that allows a caller to contact and interact
210 with 911 to access the 911 system, which service must be paid
211 for in advance and is sold in predetermined units or dol lars,
212 which units or dollars expire on a predetermined schedule or are
213 decremented on a predetermined basis in exchange for the right
214 to access wireless service.
215 (y)(w) "Public agency" means the state and any
216 municipality, county, municipal corporation, or other
217 governmental entity, public district, or public authority
218 located in whole or in part within this state which provides, or
219 has authority to provide, firefighting, law enforcement,
220 ambulance, medical, or other emergency services.
221 (z)(x) "Public safety agency" means a functional division
222 of a public agency which provides firefighting, law enforcement,
223 medical, or other emergency services.
224 (aa)(y) "Public safety answering point," "PSAP," or
225 "answering point" means the public safety agency that receives
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226 incoming 911 requests for assistance and dispatches appropriate
227 public safety agencies to respond to the requests in accordance
228 with the state E911 plan.
229 (bb)(z) "Rural county" means any county that has a
230 population of fewer than 75,000.
231 (cc)(aa) "Service identifier" means the service number,
232 access line, or other unique identifier assigned to a subscriber
233 and established by the Federal Communications Commission for
234 purposes of routing calls whereby the subscriber has access to
235 the E911 system.
236 (dd)(bb) "Tower" means any structure designed primarily to
237 support a wireless provider's antennae.
238 (ee)(cc) "Voice communications services" means two-way
239 voice service, through the use of any technology, which actually
240 provides access to 911 E911 services, and includes
241 communications services, as defined in s. 202.11, which actually
242 provide access to 911 E911 services and which are required to be
243 included in the provision of 911 E911 services pursuant to
244 orders and rules adopted by the Federal Communications
245 Commission. The term includes voice-over-Internet-protocol
246 service. For the purposes of this section, the term "voice -over-
247 Internet-protocol service" or "VoIP service" means
248 interconnected VoIP services having the following
249 characteristics:
250 1. The service enables real-time, two-way voice
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251 communications;
252 2. The service requires a broadband connection from the
253 user's locations;
254 3. The service requires IP-compatible customer premises
255 equipment; and
256 4. The service offering allows users generally to receive
257 calls that originate on the public switched telephone network
258 and to terminate calls on the public switched telephone network.
259 (ff)(dd) "Voice communications services provider" or
260 "provider" means any person or entity providing voice
261 communications services, except that the term does not include
262 any person or entity that resells voice communications services
263 and was assessed the fee authorized and imposed under subsection
264 (8) by its resale supplier.
265 (gg)(ee) "Wireless 911 system" or "wireless 911 service"
266 means an emergency telephone system or service that provides a
267 subscriber with the ability to reach an answering point by
268 accessing the digits 911.
269 (hh)(ff) "Wireless category" means the revenues to the
270 fund received from a wireless provider from the fee authorized
271 and imposed under subsection (8).
272 (ii)(gg) "Wireless communications facility" means any
273 equipment or facility used to provide service and may in clude,
274 but is not limited to, antennae, towers, equipment enclosures,
275 cabling, antenna brackets, and other such equipment. Placing a
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276 wireless communications facility on an existing structure does
277 not cause the existing structure to become a wireless
278 communications facility.
279 (jj)(hh) "Wireless provider" means a person who provides
280 wireless service and:
281 1. Is subject to the requirements of the order; or
282 2. Elects to provide wireless 911 service, or E911
283 service, or NG911 service in this state.
284 (kk)(ii) "Wireless service" means "commercial mobile radio
285 service" as provided under ss. 3(27) and 332(d) of the Federal
286 Telecommunications Act of 1996, 47 U.S.C. ss. 151 et seq., and
287 the Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-
288 66, August 10, 1993, 107 Stat. 312. The term includes service
289 provided by any wireless real-time two-way wire communication
290 device, including radio-telephone communications used in
291 cellular telephone service; personal communications service; or
292 the functional or competitive equivalent of a radio-telephone
293 communications line used in cellular telephone service, a
294 personal communications service, or a network radio access line.
295 The term does not include wireless providers that offer mainly
296 dispatch service in a more localized, noncellular configuration;
297 providers offering only data, one-way, or stored-voice services
298 on an interconnected basis; providers of air-to-ground services;
299 or public coast stations.
300 (4) POWERS AND DUTIES OF THE OFFICE.—The office shall
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301 oversee the administration of the fee authorized and imposed
302 under subsections (8) and (9).
303 (5) THE EMERGENCY COMMUNICATIONS E911 BOARD.—
304 (a) The Emergency Communications E911 Board is established
305 to administer, with oversight by the office, to:
306 1. Administer governance for how emergency infrastructure
307 and information, such as voice, text, data, and images, are
308 handled from receipt at a PSAP and routing to first responders;
309 2. Establish a financial model for the state and local
310 governments to use existing revenue sources to invest in public
311 safety communication and technology for first responders; and
312 3. Administer a financially sustainable model dedicated to
313 public safety communications and technology that will benefit
314 the state and local governments and all state residents and
315 visitors.
316 (b) Public safety funding under paragraph (a) must focus
317 on, but not be limited to:
318 1. Next Generation 911.
319 2. Emergency Services IP Network (ESInet).
320 3. Computer Aided Dispatch (CAD).
321 4. Interfaces:
322 a. Land Mobile Radio (LMR).
323 b. Smart City Technology.
324 c. In-Building Coverage.
325 5. Public Safety Broadband Networks.
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326 6. Cyber Security.
327 , with oversight by the office, the fee imposed under
328 subsections (8) and (9), including receiving revenues derived
329 from the fee; distributing portions of the revenues to wireless
330 providers, counties, and the office; accounting for receipts,
331 distributions, and income derived by the funds maintained in the
332 fund; and providing annual reports to the Governor and the
333 Legislature for submission by the office on amounts collected
334 and expended, the purposes for which expenditures have been
335 made, and the status of E911 service in this state. In order to
336 advise and assist the office in implementing the purposes of
337 this section, the board, which has the power of a body
338 corporate, has the powers enumerated in subsection (6).
339 (c)(b) The board shall consist of 9 11 members, one of
340 whom must be the system director designated under s. 365.171(5),
341 or his or her designee, who shall serve as the chair of the
342 board. The remaining 8 10 members of the board shall be
343 appointed by the Governor. All members shall be Florida
344 residents. Consideration should be given for members from rural,
345 medium, and large counties and from a broad range of fields,
346 including, but not limited to, experience in law enforcement,
347 fire response, emergency medical services, 911 coordination,
348 public safety dispatch, and telecommunications and must be
349 composed of 5 county 911 coordinators, consisting of a
350 representative from a rural county, a representative from a
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351 medium county, a representative from a large county, and 2 at -
352 large representatives recommended by the Florida Association of
353 Counties in consultation with the county 911 coordinators; 3
354 local exchange carrier member representatives, one of whom must
355 be a representative of the local exchange carrier having the
356 greatest number of access lines in the state and one of whom
357 must be a representative of a certificated competitive local
358 exchange telecommunications company; and 2 member
359 representatives from the wireless telecommunications industry,
360 with consideration given to wireless providers that are not
361 affiliated with local exchange carriers. Not more than one
362 member may be appointed to represent any single provider on the
363 board.
364 (d)(c) The system director, designated under s.
365 365.171(5), or his or her designee, must be a permanent member
366 of the board. Each of the remaining 8 10 members of the board
367 shall be appointed to a 4-year term and may not be appointed to
368 more than two successive terms. However, for the purpose of
369 staggering terms, three two of the original board members shall
370 be appointed to terms of 4 years, three two shall be appointed
371 to terms of 3 years, and two four shall be appointed to terms of
372 2 years, as designated by the Governor. A vacancy on the board
373 shall be filled in the same manner as the original appointment.
374 (e) The board shall be responsible for ensuring
375 interoperability of and connectivity between public safety
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376 communication systems within the state, including, but not
377 limited to, the following:
378 1. Call routing accuracy and timeliness of response.
379 2. Improved interagency communication and situational
380 awareness.
381 3. Improved interagency system connectivity.
382 3. Improved response times.
383 4. Maximized use of emerging technologies.
384 5. Improved lifecycle management of the systems,
385 equipment, and services that enable responders and public safety
386 officials to share information securely.
387 6. Developed governance, policy, and procedure across
388 public safety agencies.
389 7. Established resilient and secure emergency
390 communication systems to reduce cybersecurity threats and
391 vulnerabilities.
392 (f) The board shall administer the fee imposed under
393 subsections (8) and (9), including receiving revenues derived
394 from the fee; distributing portions of the revenues to counties,
395 state agencies that operate 911 centers, and the office;
396 accounting for receipts, distributions, and income derived by
397 the funds maintained in the fund; and providing annual reports
398 for review and submission to the Governor and the Legislature on
399 amounts collected and expended, the purposes for which
400 expenditures have been made, and the status of emergency
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401 communications services in this state.
402 (g) The board may create subcommittees to advise the
403 board, as needed.
404 (6) AUTHORITY OF THE BOARD; ANNUAL REPORT.—
405 (a) The board shall:
406 1. Administer the public safety emergency communications
407 systems E911 fee.
408 2. Implement, maintain, and oversee the fund.
409 3. Review and oversee the disbursement of the revenues
410 deposited into the fund as provided in s. 365.173.
411 a. The board may establish a schedule for implementing
412 wireless NG911 systems, public safety radio communications
413 systems, and other public safety communications improvements
414 E911 service by service area, and prioritize disbursements of
415 revenues from the fund to providers and rural counties as
416 provided in s. 365.173(2)(f) s. 365.173(2)(e) and (g) pursuant
417 to the schedule, in order to implement 911 E911 services in the
418 most efficient and cost-effective manner.
419 b. The board shall provide 90 days' written notice to all
420 counties and state agencies that operate 911 centers and publish
421 electronically an approved application process. Applications
422 shall be prioritized based on the availability of funds, current
423 system life expectancy, and system replacement needs. The board
424 shall take all actions within its authority to ensure that
425 county recipients of such funds use these funds only for the
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426 purpose under which they have been provided and may take any
427 actions within its authority to secure county repayment of
428 revenues upon a determination that the funds were not used for
429 the purpose for which the funds were dispersed.
430 b. Revenues in the fund which have not been disbursed
431 because sworn invoices as required by s. 365.173(2)(e) have not
432 been submitted to the board may be used by the board as needed
433 to provide grants to counties for the purpose of upgrading E911
434 systems. The counties must use the funds only for capital
435 expenditures or remotely provided hosted 911 answering point
436 call-taking equipment and network services directly attributable
437 to establishing and provisioning E911 services, which may
438 include next-generation deployment. Prior to the distribution of
439 grants, the board shall provide 90 days' written notice to all
440 counties and publish electronically an approved application
441 process. County grant applications shall be prioritiz ed based on
442 the availability of funds, current system life expectancy,
443 system replacement needs, and Phase II compliance per the
444 Federal Communications Commission. No grants will be available
445 to any county for next-generation deployment until all counties
446 are Phase II complete. The board shall take all actions within
447 its authority to ensure that county recipients of such grants
448 use these funds only for the purpose under which they have been
449 provided and may take any actions within its authority to secure
450 county repayment of grant revenues upon determination that the
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451 funds were not used for the purpose under which they were
452 provided.
453 c. When determining the funding provided in a state 911
454 grant application request, the board shall take into account
455 information on the amount of carryforward funds retained by the
456 counties. The information will be based on the amount of county
457 carryforward funds reported in the financial audit required in
458 s. 365.173(2)(d). E911 State Grant Program funding requests will
459 be limited by any county carryforward funds in excess of the
460 allowable 30 percent amount of fee revenue calculated on a 2 -
461 year basis.
462 d. The board shall reimburse all costs of a wireless
463 provider in accordance with s. 365.173(2)(e) before taking any
464 action to transfer additional funds.
465 e. After taking the action required in sub-subparagraphs
466 a.-d., the board may review and, with all members participating
467 in the vote, adjust the percentage allocations or adjust the
468 amount of the fee as provided under paragraph (8)(g), and, if
469 the board determines that the revenues in the wireless category
470 exceed the amount needed to reimburse wireless providers for the
471 cost to implement E911 services, the board may transfer revenue
472 to the counties from the existing funds within the wireless
473 category. The board shall disburse the funds equitably to all
474 counties using a timeframe and distribution methodology
475 established by the board.
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476 4. Review documentation submitted by wireless providers
477 which reflects current and projected funds derived from the fee.
478 , and the expenses incurred and expected to be incurred in order
479 to comply with the E911 service requirements contained in the
480 order for the purposes of:
481 a. Ensuring that wireless providers receive fair and
482 equitable distributions of funds from the fund.
483 b. Ensuring that wireless providers are not provided
484 disbursements from the fund which exceed the costs of providing
485 E911 service, including the costs of complying with the order.
486 c. Ascertaining the projected costs of compliance with the
487 requirements of the order and projected collections of the fee.
488 d. Implementing changes to the allocation percentages or
489 adjusting the fee under paragraph (8)(h).
490 5. Implement changes to the allocation percentages or
491 adjust the fee pursuant to s. 365.173.
492 6.5. Meet quarterly monthly in the most efficient and
493 cost-effective manner, including telephonically when practical,
494 for the business to be conducted, to review and authorize the
495 schedule of fee allocation transfer and distribution to the
496 counties and state agencies that operate 911 centers approve or
497 reject, in whole or in part, applications submitted by wireless
498 providers for recovery of moneys deposited into the wireless
499 category, and to authorize the transfer of, and distribute, the
500 fee allocation to the counties.
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501 7.6. Hire and retain employees, which may include an
502 independent executive director who shall possess experience in
503 the area of telecommunications and emergency 911 issues, for the
504 purposes of performing the technical and administrative
505 functions for the board.
506 8.7. Make and enter into contracts, pursuant to chapter
507 287, and execute other instruments necessary or convenient for
508 the exercise of the powers and functions of the board.
509 9.8. Sue and be sued, and appear and defend in all actions
510 and proceedings, in its corporate name to the same extent as a
511 natural person.
512 10.9. Adopt, use, and alter a common corporate seal.
513 11.10. Elect or appoint the officers and agents that are
514 required by the affairs of the board.
515 12.11. The board may adopt rules under ss. 120.536(1) and
516 120.54 to implement this section and ss. 365.173 and 365.174.
517 13.12. Provide coordination, support, and technical
518 assistance to counties to promote the deployment of advanced
519 public safety emergency communications 911 and E911 systems in
520 the state.
521 14.13. Provide coordination and support for educational
522 opportunities related to 911 E911 issues for the public safety
523 emergency communications E911 community in this state.
524 15.14. Act as an advocate for issues related to public
525 safety emergency communications E911 system functions, features,
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526 and operations to improve the delivery of public safety
527 emergency communications E911 services to the residents of and
528 visitors to this state.
529 16.15. Coordinate input from this state at national forums
530 and associations, to ensure that policies related to public
531 safety emergency communications E911 systems and services are
532 consistent with the policies of the public safety emergency
533 communications E911 community in this state.
534 17.16. Work cooperatively with the system director
535 established in s. 365.171(5) to enhance the state of public
536 safety emergency communications E911 services in this state and
537 to provide unified leadership for all public safety emergency
538 communications E911 issues through planning and coordination.
539 18.17. Do all acts and things necessary or convenient to
540 carry out the powers granted in this section in a manner that is
541 competitively and technologically neutral as to all v oice
542 communications services providers, including, but not limited
543 to, consideration of emerging technology and related cost
544 savings, while taking into account embedded costs in current
545 systems.
546 19.18. Have the authority to secure the services of an
547 independent, private attorney via invitation to bid, request for
548 proposals, invitation to negotiate, or professional contracts
549 for legal services already established at the Division of
550 Purchasing of the Department of Management Services.
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551 (b) Board members shall serve without compensation;
552 however, members are entitled to per diem and travel expenses as
553 provided in s. 112.061.
554 (c) By February 28 of each year, the board shall prepare a
555 report for submission by the office to the Governor, the
556 President of the Senate, and the Speaker of the House of
557 Representatives which addresses for the immediately preceding
558 state fiscal year and county fiscal year:
559 1. The annual receipts, including the total amount of fee
560 revenues collected by each provider, the total disbursements of
561 money in the fund, including the amount of fund-reimbursed
562 expenses incurred by each wireless provider to comply with the
563 order, and the amount of moneys on deposit in the fund.
564 2. Whether the amount of the fee and the allocation
565 percentages set forth in s. 365.173 have been or should be
566 adjusted to comply with the requirements of the order or other
567 provisions of this chapter, and the reasons for making or not
568 making a recommended adjustment to the fee.
569 3. Any other issues related to providing emergency
570 communications E911 services.
571 4. The status of public safety emergency communications
572 E911 services in this state.
573 (7) REQUEST FOR PROPOSALS FOR INDEPENDENT ACCOUNTING
574 FIRM.—
575 (a) The board shall issue a request for proposals as
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576 provided in chapter 287 for the purpose of retaining an
577 independent accounting firm. The independent accounting firm
578 shall perform all material administrative and accounting tasks
579 and functions required for administering the fee. The request
580 for proposals must include, but need not be limited to:
581 1. A description of the scope and general requirements of
582 the services requested.
583 2. A description of the specific accounting and reporting
584 services required for administering the fund, including
585 processing checks and distributing funds as directed by the
586 board under s. 365.173.
587 3. A description of information to be provided by the
588 proposer, including the proposer's background and qualifications
589 and the proposed cost of the services to be provided.
590 (b) The board shall establish a committee to review
591 requests for proposals which must include the statewide
592 emergency communications systems E911 system director designated
593 under s. 365.171(5), or his or her designee, and two members of
594 the board, one of whom is a county 911 coordinator and one of
595 whom represents a voice communications services provider . The
596 review committee shall review the proposals received by the
597 board and recommend an independent accounting firm to the board
598 for final selection. By agreeing to serve on the review
599 committee, each member of the review committee shall verify that
600 he or she does not have any interest or employment, directly or
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601 indirectly, with potential proposers which conflicts in any
602 manner or degree with his or her performance on the comm ittee.
603 (c) The board may secure the services of an independent
604 accounting firm via invitation to bid, request for proposals,
605 invitation to negotiate, or professional contracts already
606 established at the Division of Purchasing, Department of
607 Management Services, for certified public accounting firms, or
608 the board may hire and retain professional accounting staff to
609 accomplish these functions.
610 (8) PUBLIC SAFETY EMERGENCY COMMUNICATIONS SYSTEMS E911
611 FEE.—
612 (a) Each voice communications services provider s hall
613 collect the fee described in this subsection, except that the
614 fee for prepaid wireless service shall be collected in the
615 manner set forth in subsection (9). Each provider, as part of
616 its monthly billing process, shall bill the fee as follows. The
617 fee shall not be assessed on any pay telephone in the state.
618 1. Each voice communications service provider other than a
619 wireless provider shall bill the fee to a subscriber based on
620 the number of access lines having access to the 911 E911 system,
621 on a service-identifier basis, up to a maximum of 25 access
622 lines per account bill rendered.
623 2. Each voice communications service provider other than a
624 wireless provider shall bill the fee to a subscriber on a basis
625 of five service-identified access lines for each digital
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626 transmission link, including primary rate interface service or
627 equivalent Digital-Signal-1-level service, which can be
628 channelized and split into 23 or 24 voice-grade or data-grade
629 channels for communications, up to a maximum of 25 access lines
630 per account bill rendered.
631 3. Except in the case of prepaid wireless service, each
632 wireless provider shall bill the fee to a subscriber on a per -
633 service-identifier basis for service identifiers whose primary
634 place of use is within this state. The fee may shall not be
635 assessed on or collected from a provider with respect to an end
636 user's service if that end user's service is a prepaid wireless
637 service sold before January 1, 2015.
638 4. Except in the case of prepaid wireless service, each
639 voice communications services provider not addressed under
640 subparagraphs 1., 2., and 3. shall bill the fee on a per -
641 service-identifier basis for service identifiers whose primary
642 place of use is within the state up to a maximum of 25 service
643 identifiers for each account bill rendered.
644
645 The provider may list the fee as a separate entry on each bill,
646 in which case the fee must be identified as a fee for 911 E911
647 services. A provider shall remit the fee to the board only if
648 the fee is paid by the subscriber. If a provider receives a
649 partial payment for a monthly bill from a subscriber, the amount
650 received shall first be applied to the payment due the provider
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651 for providing voice communications service.
652 (b) A provider is not obligated to take any legal action
653 to enforce collection of the fees for which any subscriber is
654 billed. A county subscribing to 911 service remains liable to
655 the provider delivering the 911 service or equipment for any 911
656 service, equipment, operation, or maintenance charge owed by the
657 county to the provider.
658 (c) For purposes of this subsection, the state and local
659 governments are not subscribers.
660 (d) Each provider may retain 1 percent of the amount of
661 the fees collected as reimbursement for the administrative costs
662 incurred by the provider to bill, collect, and remit the fee.
663 The remainder shall be delivered to the board and deposited by
664 the board into the fund. The board shall distribute the
665 remainder pursuant to s. 365.173.
666 (e) Voice communications services providers billing the
667 fee to subscribers shall deliver revenues from the fee to the
668 board within 60 days after the end of the month in which the fee
669 was billed, together with a monthly report of the number of
670 service identifiers in each county. Each wireless provider and
671 other applicable provider identified in subparagraph (a)4. shall
672 report the number of service identifiers for subscribers whose
673 place of primary use is in each county. All provider subscriber
674 information provided to the board is subject to s. 365.174. If a
675 provider chooses to remit any fee amounts to the board before
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676 they are paid by the subscribers, a provider may apply to the
677 board for a refund of, or may take a credit for, any such fees
678 remitted to the board which are not collected by the provider
679 within 6 months following the month in which the fees are
680 charged off for federal income tax purposes as bad debt.
681 (f) The rate of the fee may not exceed 50 cents per month
682 for each service identifier. Effective January 1, 2015, the fee
683 shall be 40 cents per month for each service identifi er. The fee
684 shall apply uniformly and be imposed throughout the state,
685 except for those counties that, before July 1, 2007, had adopted
686 an ordinance or resolution establishing a fee less than 50 cents
687 per month per access line. In those counties the fee es tablished
688 by ordinance may be changed only to the uniform statewide rate
689 no sooner than 30 days after notification is made by the
690 county's board of county commissioners to the board .
691 (g) The board may adjust the allocation percentages for
692 distribution of the fund as provided in s. 365.173. No sooner
693 than June 1, 2015, the board may adjust the rate of the fee
694 under paragraph (f) based on the criteria in this paragraph and
695 paragraph (h). Any adjustment in the rate must be approved by a
696 two-thirds vote of the total number of E911 board members. When
697 setting the percentages or contemplating any adjustments to the
698 fee, the board shall consider the following:
699 1. The revenues currently allocated for wireless service
700 provider costs for implementing E911 service and projected costs
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701 for implementing E911 service, including recurring costs for
702 Phase I and Phase II and the effect of new technologies;
703 1.2. The appropriate level of funding needed to fund the
704 rural grant program provided for in s. 365.173(2)(f) s.
705 365.173(2)(g); and
706 2.3. The need to fund statewide, regional, and county
707 grants in accordance with sub-subparagraph (6)(a)3.b. and s.
708 365.173(2)(g) s. 365.173(2)(h).
709 (h) The board may adjust the allocation percentages or
710 adjust the amount of the fee as provided in paragraph (g) if
711 necessary to ensure full cost recovery or prevent over recovery
712 overrecovery of costs incurred in the provision of 911 E911
713 service, including costs incurred or projected to be incurred to
714 comply with the order. Any new allocation percentages or reduced
715 or increased fee may not be adjusted for 1 year. In no event
716 shall the fee exceed 50 cents per month for each service
717 identifier. The fee, and any board adjustment of the fee, shall
718 be uniform throughout the state, except for the counties
719 identified in paragraph (f). No less than 90 days before the
720 effective date of any adjustment to the fee, the board shall
721 provide written notice of the adjusted fee amount and effective
722 date to each voice communications services provider from which
723 the board is then receiving the fee.
724 (i) It is the intent of the Legislature that all revenue
725 from the fee be used as specified in s. 365.173(2)(a)-(h) s.
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726 365.173(2)(a)-(i).
727 (j) State and local taxes do not apply to the fee. The
728 amount of the E911 fee collected by a provider may not be
729 included in the base for imposition of any tax, fee, surcharge,
730 or other charge imposed by this state, any political subdivision
731 of this state, or any intergovernmental agency.
732 (k) A local government may not levy the fee or any
733 additional fee on providers or subscribers for the provision of
734 911 E911 service.
735 (l) For purposes of this section, the definitions
736 contained in s. 202.11 and the provisions of s. 202.155 apply in
737 the same manner and to the same extent as the definitions and
738 provisions apply to the taxes levied under chapter 202 on mobile
739 communications services.
740 (9) PREPAID WIRELESS PUBLIC SAFETY EMERGENCY
741 COMMUNICATIONS SYSTEMS E911 FEE.—
742 (a) Effective January 1, 2015, a prepaid wireless E911 fee
743 is imposed per retail transaction at the rate established in
744 paragraph (8)(f). In order to allow sellers of all sizes and
745 technological capabilities adequate time to comply with this
746 subsection, a seller of prepaid wireless service operating in
747 this state before the prepaid wireless E911 fee is imposed shall
748 retain 100 percent of the fee collected under this paragraph for
749 the first 2 months to offset the cost of setup.
750 (a)(b) Effective July 1, 2023 March 1, 2015, the prepaid
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751 wireless E911 fee imposed under paragraph (a) shall be subject
752 to remittance in accordance with paragraph (f) (g). In no event
753 shall the fee exceed 50 cents for each retail transaction. At
754 least 90 days before the effective date of any adjustment to the
755 fee under paragraph (8)(g), the Department of Revenue shall
756 provide written notice of the adjusted fee amount and its
757 effective date to each seller from which the department is then
758 receiving the fee. At least 120 days before the effective date
759 of any adjustment to the fee imposed under this subsection, the
760 board shall provide notice to the Department of Revenue of the
761 adjusted fee amount and effective date of the adjustment.
762 (b)(c) The prepaid wireless E911 fee shall be collected by
763 the seller from the consumer with respect to each retail
764 transaction occurring in this state. The amount of the prepaid
765 wireless E911 fee shall be separately stated on an invoice,
766 receipt, or other similar document that is provided to the
767 consumer by the seller or otherwise disclosed to the consumer.
768 (c)(d) For purposes of paragraph (b) (c), a retail
769 transaction that takes place in person by a consumer at a
770 business location of the seller shall be treated as occurring in
771 this state if that business location is in this state. Such
772 transaction is deemed to have occurred in the county of the
773 business location. When a retail transaction does not take place
774 at the seller's business location, the transaction shall be
775 treated as taking place at the consumer's shipping address or,
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776 if no item is shipped, at the consumer's address or the location
777 associated with the consumer's mobile telephone number. Such
778 transaction is deemed to have occurred in the county of the
779 consumer's shipping address when items are shipped to the
780 consumer or, when no items are shipped, the county of the
781 consumer's address or the location associated with the
782 consumer's mobile telephone number. A transaction for which the
783 specific Florida county cannot be determined shall be treated as
784 nonspecific.
785 (d)(e) If a prepaid wireless device is sold for a single,
786 nonitemized price with a prepaid wireless service of 10 minutes
787 or less or $5 or less, the seller may elect not to apply the
788 prepaid wireless E911 fee to the transaction.
789 (e)(f) The amount of the prepaid wireless E911 fee that is
790 collected by a seller from a consumer and that is separately
791 stated on an invoice, receipt, or similar document provided to
792 the consumer by the seller, may not be included in the base for
793 imposition of any tax, fee, surcharge, or other charge that is
794 imposed by this state, any political subdivision of this state,
795 or any intergovernmental agency.
796 (f)(g) Beginning July 1, 2023 April 1, 2015, each seller
797 shall file a return and remit the prepaid wireless E911 fees
798 collected in the previous month to the Department of Revenue on
799 or before the 20th day of the month. If the 20th day falls on a
800 Saturday, Sunday, or legal holiday, payments accompanied by
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801 returns are due on the next succeeding day that is not a
802 Saturday, Sunday, or legal holiday observed by federal or state
803 agencies as defined in chapter 683 and s. 7503 of the Internal
804 Revenue Code of 1986, as amended. A seller may remit the prepaid
805 wireless E911 fee by electronic funds transfer and file a fee
806 return with the Department of Revenue that is initiated through
807 an electronic data interchange.
808 1. When a seller is authorized by the Department of
809 Revenue pursuant to s. 212.11(1)(c) or (d) to file a sales and
810 use tax return on a quarterly, semiannual, or annual reporting
811 basis, the seller may file a return and remit the prepaid
812 wireless E911 fees on or before the 20th day of the month
813 following the authorized reporting period for sales and use tax.
814 2. A seller collecting less than $50 per month of prepaid
815 wireless E911 fees may file a quarterly return for the calendar
816 quarters ending in March, June, September, and December. The
817 seller must file a return and remit the prepaid wireless E911
818 fees collected during each calendar quarter on or before the
819 20th day of the month following that calendar quarter.
820 3. A seller must provide the following information on each
821 prepaid wireless E911 fee return filed with the Department of
822 Revenue:
823 a. The seller's name, federal identification number,
824 taxpayer identification number issued by the Department of
825 Revenue, business location address and mailing address, and
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826 county of the business location in accordance with paragraph (c)
827 (d);
828 b. The reporting period;
829 c. The number of prepaid wireless services sold during the
830 reporting period;
831 d. The amount of prepaid wireless E911 fees collected and
832 the amount of any adjustments to the fees collected;
833 e. The amount of any retailer collection allowance
834 deducted from the amount of prepaid wireless E911 fees
835 collected; and
836 f. The amount to be remitted to the Department of Revenue.
837 4. A seller who operates two or more business locations
838 for which returns are required to be filed with the Department
839 of Revenue may file a consolidated return reporting and
840 remitting the prepaid wireless E911 fee for all business
841 locations. Such sellers must report the prepaid wireless E911
842 fees collected in each county, in accordance with paragraph (c)
843 (d), on a reporting schedule filed with the fee return.
844 5. A return is not required for a reporting perio d when no
845 prepaid wireless E911 fee is to be remitted for that period.
846 6. Except as provided in this section, the Department of
847 Revenue shall administer, collect, and enforce the fee under
848 this subsection pursuant to the same procedures used in the
849 administration, collection, and enforcement of the general state
850 sales tax imposed under chapter 212. The provisions of chapter
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851 212 regarding authority to audit and make assessments, keeping
852 of books and records, and interest and penalties on delinquent
853 fees shall apply. The provisions of estimated tax liability in
854 s. 212.11(1)(a) do not apply to the prepaid wireless E911 fee.
855 (g)(h) A seller of prepaid wireless services in this state
856 must register with the Department of Revenue for each place of
857 business as required by s. 212.18(3) and the Department of
858 Revenue's administrative rule regarding registration as a sales
859 and use tax dealer. A separate application is required for each
860 place of business. A valid certificate of registration issued by
861 the Department of Revenue to a seller for sales and use tax
862 purposes is sufficient for purposes of the registration
863 requirement of this subsection. There is no fee for registration
864 for remittance of the prepaid wireless E911 fee.
865 (h)(i) The Department of Revenue shall deposit the funds
866 remitted under this subsection into the Audit and Warrant
867 Clearing Trust Fund established in s. 215.199 and retain up to
868 3.2 percent of the funds remitted under this subsection to
869 reimburse its direct costs of administering the collection a nd
870 remittance of prepaid wireless E911 fees. Thereafter, the
871 Department of Revenue shall transfer all remaining funds
872 remitted under this subsection to the Emergency Communications
873 Number E911 System Fund monthly for use as provided in s.
874 365.173.
875 (i)(j) Beginning March 1, 2015, a seller may retain 5
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876 percent of the prepaid wireless E911 fees that are collected by
877 the seller from consumers as a retailer collection allowance.
878 (j)(k) A provider or seller of prepaid wireless service is
879 not liable for damages to any person resulting from or incurred
880 in connection with providing or failing to provide emergency
881 communications and 911 or E911 service or for identifying or
882 failing to identify the telephone number, address, location, or
883 name associated with any person or device that is accessing or
884 attempting to access emergency communications and 911 or E911
885 service.
886 (k)(l) A provider or seller of prepaid wireless service is
887 not liable for damages to any person resulting from or incurred
888 in connection with providing any lawful assistance to any
889 investigative or law enforcement officer of the United States,
890 any state, or any political subdivision of any state in
891 connection with any lawful investigation or other law
892 enforcement activity by such law enforcement officer.
893 (l)(m) The limitations of liability under this subsection
894 for providers and sellers are in addition to any other
895 limitation of liability provided for under this section.
896 (m)(n) A local government may not levy the fee or any
897 additional fee on providers or sellers of prepaid wireless
898 service for the provision of 911 E911 service.
899 (n)(o) For purposes of this section, the state and local
900 governments are not consumers.
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901 (o)(p) For purposes of this subsection, the term:
902 1. "Consumer" means a person who purchases prepaid
903 wireless service in a retail sale.
904 2. "Prepaid wireless E911 fee" means the fee that is
905 required to be collected by a seller from a consumer as provided
906 in this subsection.
907 3. "Provider" means a person that provides prepaid
908 wireless service pursuant to a license issued by the Federal
909 Communications Commission.
910 4. "Retail transaction" means the purchase by a consumer
911 from a seller of prepaid wireless service that may be applied to
912 a single service identifier for use by the consumer. If a
913 consumer makes a purchase of multiple prepaid wireless services
914 in a single transaction, each individual prepaid wireless
915 service shall be considered a separate retail transaction for
916 purposes of calculating the prepaid wireless E911 fee.
917 5. "Seller" means a person who makes retail sales of
918 prepaid wireless services to a consumer.
919 (10) AUTHORIZED EXPENDITURES OF PUBLIC SAFETY EMERGENCY
920 COMMUNICATIONS SYSTEMS E911 FEE.—
921 (a) For purposes of this section, emergency communications
922 and 911 E911 service includes the functions relating to the
923 receipt and transfer of requests for emergency assistance, of
924 database management, call taking, and location verification, and
925 call transfer. Department of Health certification and
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926 recertification and training costs for 911 public safety
927 telecommunications, including dispatching, are functions of
928 public safety emergency telecommunications 911 services.
929 (b) All costs directly attributable to the establishment
930 or provision of emergency communications equipment E911 service
931 and contracting for E911 services related to a primary or
932 secondary Public Safety Answering Point (PSAP) are eligible for
933 expenditure of moneys derived from imposition of the fee
934 authorized by subsections (8) and (9). These costs include the
935 acquisition, implementation, and maintenance of PSAP Public
936 Safety Answering Point (PSAP) equipment and 911 E911 service
937 features, as defined in the providers' published schedules or
938 the acquisition, installation, and maintenance of other E911
939 equipment, including: circuits; call answering equipment; call
940 transfer equipment; ANI or ALI controllers; ANI or ALI displays;
941 station instruments; NG911 E911 telecommunications systems;
942 Emergency Services IP Network ESInet; visual call information
943 and storage devices; recording equipment; telephone devices and
944 other equipment for the hearing impaired used in the E911
945 system; PSAP backup power systems; consoles; automatic call
946 distributors; , and interfaces, including hardware and software,
947 for computer-aided dispatch (CAD) systems, public safety land
948 mobile radio systems (LMR) and radio consoles that provide two-
949 way radio communication with responders, and in-building
950 coverage; integrated CAD systems for that portion of the systems
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951 used for E911 call taking; GIS system and software equipment and
952 information displays; network clocks; cybersecurity, including
953 hardware, software, and services; salary and associated expenses
954 for 911 E911 call takers and emergency dispatchers for that
955 portion of their time spent taking and transferring E911 calls,
956 salary, and associated expenses for a county to employ a full -
957 time equivalent 911 E911 coordinator position and a full-time
958 equivalent mapping or geographical data position, and technical
959 system maintenance, database, and administration personnel for
960 the portion of their time spent administrating the emergency
961 communications E911 system; emergency medical, fire, and law
962 enforcement prearrival instruction software; charts and training
963 costs; training costs for PSAP call takers, dispatchers,
964 supervisors, and managers in the proper methods and techniques
965 used in taking and transferring 911 E911 calls; costs to train
966 and educate PSAP employees regarding 911 and radio E911 service
967 or NG911 E911 equipment, including fees collected by the
968 Department of Health for the certification and recertification
969 of 911 public safety telecommunicators as required under s.
970 401.465; and expenses required to develop and maintain all
971 information, including ALI and ANI databases and other
972 information source repositories, necessary to properly inform
973 call takers as to location address, type of emergency, smart
974 city technology data, public safety broadband networks, and
975 other information directly relevant to the processing of a
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976 request for emergency assistance E911 call-taking and
977 transferring function. Moneys derived from the fee may also be
978 used for next-generation E911 network services, next-generation
979 E911 database services, next-generation E911 equipment, and
980 wireless E911 routing systems.
981 (c) The moneys may not be used to pay for any item not
982 listed in this subsection, including, but not limited to, any
983 capital or operational costs for emergency responses which occur
984 after the call transfer to the responding public safety entity
985 and the costs for utilities, constructing, leasing, maintaining,
986 or renovating buildings, except for those building modifications
987 necessary to maintain the security and environmental integrity
988 of the PSAP and emergency communications E911 equipment rooms.
989 (11) LIABILITY OF COUNTIES.—A county subscribing to 911
990 service remains liable to the local exchange carrier for any 911
991 service, equipment, operation, or maintenance charge owed by the
992 county to the local exchange carrier. As used in this
993 subsection, the term "local exchange carrier" means a local
994 exchange telecommunications service provider of 911 service or
995 equipment to any county within its certificated area.
996 (12) INDEMNIFICATION AND LIMITATION OF LIABILITY. —A local
997 government may indemnify local exchange carriers ag ainst
998 liability in accordance with the published schedules of the
999 company. Notwithstanding an indemnification agreement, a local
1000 exchange carrier, voice communications services provider, or
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1001 other service provider that provides 911, or E911, or NG911
1002 service on a retail or wholesale basis is not liable for damages
1003 resulting from or in connection with 911, or E911, or NG911
1004 service, or for identification of the telephone number, or
1005 address, or name associated with any person accessing 911, or
1006 E911, or NG911 service, unless the carrier or provider acted
1007 with malicious purpose or in a manner exhibiting wanton and
1008 willful disregard of the rights, safety, or property of a person
1009 when providing such services. A carrier or provider is not
1010 liable for damages to any person resulting from or in connection
1011 with the carrier's or provider's provision of any lawful
1012 assistance to any investigative or law enforcement officer of
1013 the United States, this state, or a political subdivision
1014 thereof, or of any other state or political subdivision thereof,
1015 in connection with any lawful investigation or other law
1016 enforcement activity by such law enforcement officer. For
1017 purposes of this subsection, the term "911, or E911, or NG911
1018 service" means a telecommunications service, voice or nonvoice
1019 communications service, or other wireline or wireless service,
1020 including, but not limited to, a service using Internet
1021 protocol, which provides, in whole or in part, any of the
1022 following functions: providing members of the public with the
1023 ability to reach an answering point by using the digits 9-1-1;
1024 directing 911 calls to answering points by selective routing;
1025 providing for automatic number identification and automatic
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1026 location-identification features; or providing wireless E911
1027 services as defined in the order.
1028 (13) FACILITATING EMERGENCY COMMUNICATIONS E911 SERVICE
1029 IMPLEMENTATION.—To balance the public need for reliable
1030 emergency communications E911 services through reliable wireless
1031 systems and the public interest served by governmental zonin g
1032 and land development regulations and notwithstanding any other
1033 law or local ordinance to the contrary, the following standards
1034 shall apply to a local government's actions, as a regulatory
1035 body, in the regulation of the placement, construction, or
1036 modification of a wireless communications facility. This
1037 subsection shall not, however, be construed to waive or alter
1038 the provisions of s. 286.011 or s. 286.0115. For the purposes of
1039 this subsection only, "local government" shall mean any
1040 municipality or county and any agency of a municipality or
1041 county only. The term "local government" does not, however,
1042 include any airport, as defined by s. 330.27(2), even if it is
1043 owned or controlled by or through a municipality, county, or
1044 agency of a municipality or county. Further, notwithstanding
1045 anything in this section to the contrary, this subsection does
1046 not apply to or control a local government's actions as a
1047 property or structure owner in the use of any property or
1048 structure owned by such entity for the placement, construction,
1049 or modification of wireless communications facilities. In the
1050 use of property or structures owned by the local government,
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1051 however, a local government may not use its regulatory authority
1052 so as to avoid compliance with, or in a manner that does not
1053 advance, the provisions of this subsection.
1054 (a) Collocation among wireless providers is encouraged by
1055 the state.
1056 1.a. Collocations on towers, including nonconforming
1057 towers, that meet the requirements in sub-sub-subparagraphs (I),
1058 (II), and (III), are subject to only building permit review,
1059 which may include a review for compliance with this
1060 subparagraph. Such collocations are not subject to any design or
1061 placement requirements of the local government's land
1062 development regulations in effect at the time of the collocation
1063 that are more restrictive than those in effect at the time of
1064 the initial antennae placement approval, to any other portion of
1065 the land development regulations, or to public hearing review.
1066 This sub-subparagraph shall not preclude a public hearing for
1067 any appeal of the decision on the collocation application.
1068 (I) The collocation does not increase the height of the
1069 tower to which the antennae are to be attached, measured to the
1070 highest point of any part of the tower or any existing antenna
1071 attached to the tower;
1072 (II) The collocation does not increase the ground space
1073 area, commonly known as the compound, approved in the site plan
1074 for equipment enclosures and ancillary facilities; and
1075 (III) The collocation consists of antennae, equipment
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1076 enclosures, and ancillary facilities that are of a design and
1077 configuration consistent with all applicable regulations,
1078 restrictions, or conditions, if any, applied to the initial
1079 antennae placed on the tower and to its accompanying equipment
1080 enclosures and ancillary facilities and, if applicable, applied
1081 to the tower supporting the antennae. Such regulations may
1082 include the design and aesthetic requirements, but not
1083 procedural requirements, other than those authorized by this
1084 section, of the local government's land development regulations
1085 in effect at the time the initial antennae placement was
1086 approved.
1087 b. Except for a historic building, structure, site,
1088 object, or district, or a tower included in sub-subparagraph a.,
1089 collocations on all other existing structures that meet the
1090 requirements in sub-sub-subparagraphs (I)-(IV) shall be subject
1091 to no more than building permit review, and an administrative
1092 review for compliance with this subparagraph. Such collocations
1093 are not subject to any portion of the local government's land
1094 development regulations not addressed herein, or to public
1095 hearing review. This sub-subparagraph shall not preclude a
1096 public hearing for any appeal of the decision on the collocation
1097 application.
1098 (I) The collocation does not increase the height of the
1099 existing structure to which the antennae are to be attached,
1100 measured to the highest point of any part of the structure or
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1101 any existing antenna attached to the structure;
1102 (II) The collocation does not increase the ground space
1103 area, otherwise known as the compound, if any, approved in the
1104 site plan for equipment enclosures and ancillary facilities;
1105 (III) The collocation consists of antennae, equipment
1106 enclosures, and ancillary facilities that are of a design and
1107 configuration consistent with any applicable structural or
1108 aesthetic design requirements and any requirements for location
1109 on the structure, but not prohibitions or restrictions on the
1110 placement of additional collocations on the existing structure
1111 or procedural requirements, other than those authorized by this
1112 section, of the local government's land development regulations
1113 in effect at the time of the collocation application; and
1114 (IV) The collocation consists of antennae, equipment
1115 enclosures, and ancillary facilities that are of a design and
1116 configuration consistent with all applicable restrictions or
1117 conditions, if any, that do not conflict with sub-sub-
1118 subparagraph (III) and were applied to the initial antennae
1119 placed on the structure and to its accompanying equipmen t
1120 enclosures and ancillary facilities and, if applicable, applied
1121 to the structure supporting the antennae.
1122 c. Regulations, restrictions, conditions, or permits of
1123 the local government, acting in its regulatory capacity, that
1124 limit the number of collocations or require review processes
1125 inconsistent with this subsection shall not apply to
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1126 collocations addressed in this subparagraph.
1127 d. If only a portion of the collocation does not meet the
1128 requirements of this subparagraph, such as an increase in the
1129 height of the proposed antennae over the existing structure
1130 height or a proposal to expand the ground space approved in the
1131 site plan for the equipment enclosure, where all other portions
1132 of the collocation meet the requirements of this subparagraph,
1133 that portion of the collocation only may be reviewed under the
1134 local government's regulations applicable to an initial
1135 placement of that portion of the facility, including, but not
1136 limited to, its land development regulations, and within the
1137 review timeframes of subparagraph (d)2., and the rest of the
1138 collocation shall be reviewed in accordance with this
1139 subparagraph. A collocation proposal under this subparagraph
1140 that increases the ground space area, otherwise known as the
1141 compound, approved in the original site plan for equipment
1142 enclosures and ancillary facilities by no more than a cumulative
1143 amount of 400 square feet or 50 percent of the original compound
1144 size, whichever is greater, shall, however, require no more than
1145 administrative review for compliance with the local government's
1146 regulations, including, but not limited to, land development
1147 regulations review, and building permit review, with no public
1148 hearing review. This sub-subparagraph shall not preclude a
1149 public hearing for any appeal of the decision on th e collocation
1150 application.
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1151 2. If a collocation does not meet the requirements of
1152 subparagraph 1., the local government may review the application
1153 under the local government's regulations, including, but not
1154 limited to, land development regulations, applicable to the
1155 placement of initial antennae and their accompanying equipment
1156 enclosure and ancillary facilities.
1157 3. If a collocation meets the requirements of subparagraph
1158 1., the collocation shall not be considered a modification to an
1159 existing structure or an impermissible modification of a
1160 nonconforming structure.
1161 4. The owner of the existing tower on which the proposed
1162 antennae are to be collocated shall remain responsible for
1163 compliance with any applicable condition or requirement of a
1164 permit or agreement, or any applicable condition or requirement
1165 of the land development regulations to which the existing tower
1166 had to comply at the time the tower was permitted, including any
1167 aesthetic requirements, provided the condition or requirement is
1168 not inconsistent with this paragraph.
1169 5. An existing tower, including a nonconforming tower, may
1170 be structurally modified in order to permit collocation or may
1171 be replaced through no more than administrative review and
1172 building permit review, and is not subject to public hearing
1173 review, if the overall height of the tower is not increased and,
1174 if a replacement, the replacement tower is a monopole tower or,
1175 if the existing tower is a camouflaged tower, the replacement
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1176 tower is a like-camouflaged tower. This subparagraph shall not
1177 preclude a public hearing for any appeal of the decision on the
1178 application.
1179 (b)1. A local government's land development and
1180 construction regulations for wireless communications facilities
1181 and the local government's review of an application for the
1182 placement, construction, or modification of a wireless
1183 communications facility shall only address land development or
1184 zoning issues. In such local government regulations or review,
1185 the local government may not require information on or evaluate
1186 a wireless provider's business decisions about its service,
1187 customer demand for its service, or quality of its service to or
1188 from a particular area or site, unless the wireless provider
1189 voluntarily offers this information to the local government. In
1190 such local government regulations or review, a local government
1191 may not require information on or evaluate the wireless
1192 provider's designed service unless the information or materials
1193 are directly related to an identified land development or zoning
1194 issue or unless the wireless provider voluntarily offers the
1195 information. Information or materials directly related to an
1196 identified land development or zoning issue may include, but are
1197 not limited to, evidence that no existing structure can
1198 reasonably be used for the antennae placement instead of the
1199 construction of a new tower, that residential areas cannot be
1200 served from outside the residential area, as addressed in
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1201 subparagraph 3., or that the proposed height of a new tower or
1202 initial antennae placement or a proposed height increase of a
1203 modified tower, replacement tower, or collocation is necessary
1204 to provide the provider's designed service. Nothing in this
1205 paragraph shall limit the local government from reviewing any
1206 applicable land development or zoning issue addressed in its
1207 adopted regulations that does not conflict with this section,
1208 including, but not limited to, aesthetics, landscaping, land
1209 use-based land use based location priorities, structural design,
1210 and setbacks.
1211 2. Any setback or distance separation required of a tower
1212 may not exceed the minimum distance necessary, as determined by
1213 the local government, to satisfy the structural safety or
1214 aesthetic concerns that are to be protected by the setback or
1215 distance separation.
1216 3. A local government may exclude the placement of
1217 wireless communications facilities in a residential area or
1218 residential zoning district but only in a manner that does not
1219 constitute an actual or effective prohibition of the provider's
1220 service in that residential area or zoning district. If a
1221 wireless provider demonstrates to the satisfaction of the local
1222 government that the provider cannot reasonably provide its
1223 service to the residential area or zone from outside the
1224 residential area or zone, the municipality or county and
1225 provider shall cooperate to determine an appropriate location
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1226 for a wireless communications facility of an appropriate design
1227 within the residential area or zone. The local government may
1228 require that the wireless provider reimburse the reasonable
1229 costs incurred by the local government for this cooperative
1230 determination. An application for such cooperative determination
1231 shall not be considered an application under paragraph (d).
1232 4. A local government may impose a reasonable fee on
1233 applications to place, construct, or modify a wireless
1234 communications facility only if a similar fee is imposed on
1235 applicants seeking other similar types of zoning, land use, or
1236 building permit review. A local government may impose fees for
1237 the review of applications for wireless communications
1238 facilities by consultants or experts who conduct code compliance
1239 review for the local government but any fee is limited to
1240 specifically identified reasonable expenses incurred in the
1241 review. A local government may impose reasonable surety
1242 requirements to ensure the removal of wireless communications
1243 facilities that are no longer being used.
1244 5. A local government may impose design requirements, such
1245 as requirements for designing towers to support collocation or
1246 aesthetic requirements, except as otherwise limited in this
1247 section, but shall not impose or require information on
1248 compliance with building code type standards for the
1249 construction or modification of wireless communications
1250 facilities beyond those adopted by the local government under
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1251 chapter 553 and that apply to all similar types of construction.
1252 (c) Local governments may not require wireless providers
1253 to provide evidence of a wireless communications facility's
1254 compliance with federal regulations, except evidence of
1255 compliance with applicable Federal Aviation Administration
1256 requirements under 14 C.F.R. part 77, as amended, and evidence
1257 of proper Federal Communications Commission licensure, or other
1258 evidence of Federal Communications Commission authorized
1259 spectrum use, but may request the Federal Communications
1260 Commission to provide information as to a wireless provider's
1261 compliance with federal regulations, as authorized by federal
1262 law.
1263 (d)1. A local government shall grant or deny each properly
1264 completed application for a collocation under subparagraph (a)1.
1265 based on the application's compliance with the local
1266 government's applicable regulations, as provided for in
1267 subparagraph (a)1. and consistent with this subsection, and
1268 within the normal timeframe for a similar building permit review
1269 but in no case later than 45 business days after the date the
1270 application is determined to be properly completed in accordance
1271 with this paragraph.
1272 2. A local government shall grant or deny each properly
1273 completed application for any other wireless communications
1274 facility based on the application's compliance with the local
1275 government's applicable regulations, including but not limited
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1276 to land development regulations, consistent with this subsection
1277 and within the normal timeframe for a similar type review but in
1278 no case later than 90 business days after the date the
1279 application is determined to be properly completed in accordance
1280 with this paragraph.
1281 3.a. An application is deemed submitted or resubmitted on
1282 the date the application is received by the local government. If
1283 the local government does not notify the applicant in writing
1284 that the application is not completed in compliance with the
1285 local government's regulations within 20 business days after the
1286 date the application is initially submitted or additional
1287 information resubmitted, the application is deemed, for
1288 administrative purposes only, to be properly completed and
1289 properly submitted. However, the determination shall not be
1290 deemed as an approval of the application. If the application is
1291 not completed in compliance with the local government's
1292 regulations, the local government shall so notify the applicant
1293 in writing and the notification must indicate with specificity
1294 any deficiencies in the required documents or deficiencies in
1295 the content of the required documents which, if cured, make the
1296 application properly completed. Upon resubmission of information
1297 to cure the stated deficiencies, the local government shall
1298 notify the applicant, in writing, within the normal timeframes
1299 of review, but in no case longer than 20 business days after the
1300 additional information is submitted, of any remaining
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1301 deficiencies that must be cured. Deficiencies in document type
1302 or content not specified by the local government do not make the
1303 application incomplete. Notwithstanding this sub-subparagraph,
1304 if a specified deficiency is not properly cured when the
1305 applicant resubmits its application to comply with the notice of
1306 deficiencies, the local government may continue to request the
1307 information until such time as the specified deficiency is
1308 cured. The local government may establish reasonable timeframes
1309 within which the required information to cure the application
1310 deficiency is to be provided or the application will be
1311 considered withdrawn or closed.
1312 b. If the local government fails to grant or deny a
1313 properly completed application for a wireless communications
1314 facility within the timeframes set forth in this paragraph, the
1315 application shall be deemed automatically approved and the
1316 applicant may proceed with placement of the facilities without
1317 interference or penalty. The timeframes specified in
1318 subparagraph 2. may be extended only to the extent that the
1319 application has not been granted or denied because the local
1320 government's procedures generally applicable to all other
1321 similar types of applications require action by the governing
1322 body and such action has not taken place within the timeframes
1323 specified in subparagraph 2. Under such circumstances, the local
1324 government must act to either grant or deny the application at
1325 its next regularly scheduled meeting or, otherwise, the
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1326 application is deemed to be automatically approved.
1327 c. To be effective, a waiver of the timeframes set forth
1328 in this paragraph must be voluntarily agreed to by the applicant
1329 and the local government. A local government may request, but
1330 not require, a waiver of the timeframes by the applicant, except
1331 that, with respect to a specific application, a one -time waiver
1332 may be required in the case of a declared local, state, or
1333 federal emergency that directly affects the administration of
1334 all permitting activities of the local government.
1335 (e) The replacement of or modification to a wireless
1336 communications facility, except a tower, that results in a
1337 wireless communications facility not readily discernibly
1338 different in size, type, and appearance when viewed from ground
1339 level from surrounding properties, and the replacement or
1340 modification of equipment that is not visible from surrounding
1341 properties, all as reasonably determined by the local
1342 government, are subject to no more than applicable building
1343 permit review.
1344 (f) Any other law to the contrary notwithstanding, the
1345 Department of Management Services shall negotiate, in the name
1346 of the state, leases for wireless communications facilit ies that
1347 provide access to state government-owned property not acquired
1348 for transportation purposes, and the Department of
1349 Transportation shall negotiate, in the name of the state, leases
1350 for wireless communications facilities that provide access to
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1351 property acquired for state rights-of-way. On property acquired
1352 for transportation purposes, leases shall be granted in
1353 accordance with s. 337.251. On other state government -owned
1354 property, leases shall be granted on a space available, first -
1355 come, first-served basis. Payments required by state government
1356 under a lease must be reasonable and must reflect the market
1357 rate for the use of the state government-owned property. The
1358 Department of Management Services and the Department of
1359 Transportation are authorized to adopt rules for the terms and
1360 conditions and granting of any such leases.
1361 (g) If any person adversely affected by any action, or
1362 failure to act, or regulation, or requirement of a local
1363 government in the review or regulation of the wireless
1364 communication facilities files an appeal or brings an
1365 appropriate action in a court or venue of competent
1366 jurisdiction, following the exhaustion of all administrative
1367 remedies, the matter shall be considered on an expedited basis.
1368 (14) MISUSE OF 911, OR E911, OR NG911 SYSTEM; PENALTY.—
1369 911, and E911, and NG911 service must be used solely for
1370 emergency communications by the public. Any person who accesses
1371 the number 911 for the purpose of making a false alarm or
1372 complaint or reporting false information that could result in
1373 the emergency response of any public safety agency; any person
1374 who knowingly uses or attempts to use such service for a purpose
1375 other than obtaining public safety assistance; or any person who
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1376 knowingly uses or attempts to use such service in an effort to
1377 avoid any charge for service, commits a misdemeanor of the first
1378 degree, punishable as provided in s. 775.082 or s. 775.083.
1379 After being convicted of unauthorized use of such service four
1380 times, a person who continues to engage in such unauthorized use
1381 commits a felony of the third degree, punishable as provided in
1382 s. 775.082, s. 775.083, or s. 775.084. In addition, if the value
1383 of the service or the service charge obtained in a manner
1384 prohibited by this subsection exceeds $100, the person
1385 committing the offense commits a felony of the third degree,
1386 punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
1387 (15) TEXT-TO-911 SERVICE.—Each county shall develop a
1388 countywide implementation plan addressing text-to-911 services
1389 and, by January 1, 2022, enact a system to allow text-to-911
1390 services.
1391 (16) STATE LAW NOT PREEMPTED.—This section and ss. 365.173
1392 and 365.174 do not alter any state law that otherwise regulates
1393 voice communications services providers.
1394 Section 2. Section 365.173, Florida Statutes, is amended
1395 to read:
1396 365.173 Emergency Communications Number E911 System Fund.—
1397 (1) REVENUES.—
1398 (a) Revenues derived from the fee levied on subscribers
1399 under s. 365.172(8) must be paid by the board into the State
1400 Treasury on or before the 15th day of each month. Such moneys
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1401 must be accounted for in a special fund to be designated as the
1402 Emergency Communications Number E911 System Fund, a fund created
1403 in the Division of Telecommunications, or other office as
1404 designated by the Secretary of Management Services.
1405 (b) Revenues derived from the fee levied on prepaid
1406 wireless service under s. 365.172(9), less the costs of
1407 administering collection of the fee, must be transferred by the
1408 Department of Revenue to the Emergency Communications Number
1409 E911 System Fund on or before the 25th day of each month
1410 following the month of receipt.
1411 (c) For accounting purposes, the Emergency Communications
1412 Number E911 System Fund must be segregated into three separate
1413 categories:
1414 1. The wireless category;
1415 2. The nonwireless category; and
1416 3. The prepaid wireless category.
1417 (d) All moneys must be invested by the Chief Financial
1418 Officer pursuant to s. 17.61. All moneys in such fund are to be
1419 expended by the office for the purposes provided in this section
1420 and s. 365.172. These funds are not subject to s. 215.20.
1421 (2) DISTRIBUTION AND USE OF FUNDS.—As determined by the
1422 board pursuant to s. 365.172(8)(f) s. 365.172(8)(g), and subject
1423 to any modifications approved by the board pursuant to s.
1424 365.172(6)(a)3. or (8)(g) s. 365.172(6)(a)3. or (8)(h), the
1425 moneys in the fund shall be distributed and used only as
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1426 follows:
1427 (a) Ninety-four Seventy-six percent of the moneys in the
1428 wireless category shall be distributed each month to counties,
1429 based on the total number of service identifiers in each county,
1430 and 1 percent shall be distributed each month to state agencies
1431 that operate 911 centers, to and shall be used exclusively for
1432 payment of:
1433 1. authorized expenditures, as specified in s.
1434 365.172(10).
1435 2. Costs to comply with the requirements for E911 service
1436 contained in the order and any future rules related to the
1437 order.
1438 (b) Ninety-six percent of the moneys in the nonwireless
1439 category shall be distributed each month to counties based on
1440 the total number of service identifiers in each county and shall
1441 be used exclusively for payment of authorized expenditures, as
1442 specified in s. 365.172(10).
1443 (c) Sixty-one percent of the moneys in the prepaid
1444 wireless category shall be distributed each month to counties
1445 based on the total amount of fees reported and paid in each
1446 county and shall be used exclusively for payment of authorized
1447 expenditures, as specified in s. 365.172(10). The moneys from
1448 prepaid wireless E911 fees identified as nonspecific in
1449 accordance with s. 365.172(9) shall be distributed as determined
1450 by the Emergency Communications E911 Board.
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1451 (d) Any county that receives funds under paragraphs (a),
1452 (b), and (c) shall establish a fund to be used exclusively for
1453 the receipt and expenditure of the revenues collected under
1454 paragraphs (a), (b), and (c). All fees placed in the fund and
1455 any interest accrued shall be used solely for costs described in
1456 subparagraphs (a)1. and 2. and may not be reduced, withheld, or
1457 allocated for other purposes. The money collected and interest
1458 earned in this fund shall be appropriated for these purposes by
1459 the county commissioners and incorporated into the annual county
1460 budget. The fund shall be included within the financial audit
1461 performed in accordance with s. 218.39. The financial audit
1462 shall assure that all emergency communications E911 fee
1463 revenues, interest, and emergency communications E911 grant
1464 funding are used for payment of authorized expenditures, as
1465 specified in s. 365.172(10) and as specified in the Emergency
1466 Communications E911 Board grant and special disbursement
1467 programs. The county is responsible for all expenditures of
1468 revenues distributed from the county emergency communications
1469 E911 fund and shall submit the financial audit reports to the
1470 board for review. A county may carry forward up to 30 percent of
1471 the total funds disbursed to the county by the board during a
1472 county fiscal year for expenditures for capital outlay, capital
1473 improvements, equipment replacement, or implementation of a
1474 hosted system if such expenditures are made for the purposes
1475 specified in subparagraphs (a)1. and 2.; however, the 30 -percent
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1476 limitation does not apply to funds disbursed to a county under
1477 s. 365.172(6)(a)3., and a county may carry forward any
1478 percentage of the funds, except that any grant provided shall
1479 continue to be subject to any condition imposed by the board. In
1480 order to prevent an excess recovery of costs incurred in
1481 providing emergency communication E911 service, a county that
1482 receives funds greater than the permissible emergency
1483 communication E911 costs described in s. 365.172(10), including
1484 the 30-percent carryforward allowance, must return the excess
1485 funds to the E911 board to be allocated under s. 365.172(6)(a).
1486 (e) Twenty percent of the moneys in the wireless category
1487 shall be distributed to wireless providers in response to sworn
1488 invoices submitted to the board by wireless providers to
1489 reimburse such wireless providers for the actual costs incurred
1490 to provide 911 or E911 service, including the costs of complying
1491 with the order. Such costs include costs and expenses incurred
1492 by wireless providers to design, purchase, lease, program,
1493 install, test, upgrade, operate, and maintain all necessary
1494 data, hardware, and software required to provide E911 service.
1495 Each wireless provider shall submit to the board, by August 1 of
1496 each year, a detailed estimate of the capital and operating
1497 expenses for which it anticipates that it will seek
1498 reimbursement under this paragraph during the ensuing state
1499 fiscal year. In order to be eligible for recovery during any
1500 ensuing state fiscal year, a wireless provider must submit all
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1501 sworn invoices for allowable purchases made within the previous
1502 calendar year no later than March 31 of the fiscal year. By
1503 September 15 of each year, the board shall submit to the
1504 Legislature its legislative budget request for funds to be
1505 allocated to wireless providers under this paragraph during the
1506 ensuing state fiscal year. The budget request shall be based on
1507 the information submitted by the wireless providers and
1508 estimated surcharge revenues. Distributions of moneys in the
1509 fund by the board to wireless providers must be fair and
1510 nondiscriminatory. If the total amount of moneys requested by
1511 wireless providers pursuant to invoices submitted to the board
1512 and approved for payment exceeds the amount in the fund in any
1513 month, wireless providers that have invoices approved for
1514 payment shall receive a pro rata share of moneys in the fund and
1515 the balance of the payments shall be carried over to the
1516 following month or months until all of the approved payments are
1517 made. The board may adopt rules necessary to address the manner
1518 in which pro rata distributions are made when the total amount
1519 of funds requested by wireless providers pursuant to invoices
1520 submitted to the board exceeds the total amount of moneys on
1521 deposit in the fund.
1522 (e)(f) One percent of the moneys in each category of the
1523 fund shall be retained by the board to be applied to costs and
1524 expenses incurred for the purposes of managing, administering,
1525 and overseeing the receipts and disbursements from the fund and
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1526 other activities as defined in s. 365.172(6). Any funds retained
1527 for such purposes in a calendar year which are not applied to
1528 such costs and expenses by March 31 of the following year shall
1529 be redistributed as determined by the board.
1530 (f)(g) Three percent of the moneys in each category of the
1531 fund and an additional 1 percent of the moneys collected in the
1532 wireless category shall be used to make monthly distributions to
1533 rural counties for the purpose of providing facilities and
1534 network and service enhancements and assistance for the
1535 emergency communications 911 or E911 systems operated by rural
1536 counties and for the provision of grants by the office to rural
1537 counties for upgrading and replacing emergency communications
1538 E911 systems.
1539 (g)(h) Thirty-five percent of the moneys in the prepaid
1540 wireless category shall be retained by the board to provide
1541 state emergency communications E911 grants to be awarded in
1542 accordance with the following order of priority:
1543 1. For all large, medium, and rural counties to upgrade or
1544 replace emergency communications E911 systems.
1545 2. For all large, medium, and rural counties to develop
1546 and maintain statewide 911 routing, geographic, and management
1547 information systems.
1548 3. For all large, medium, and rural counties to develop
1549 and maintain next-generation 911 services and equipment.
1550 (h)(i) If the wireless category has funds remaining in it
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1551 on December 31 after disbursements have been made during the
1552 calendar year immediately prior to December 31, the board may
1553 disburse the excess funds in the wireless category in accordance
1554 with s. 365.172(6)(a)3.b.
1555 (3) The Legislature recognizes that the fee authorized
1556 under s. 365.172 may not necessarily provide the total funding
1557 required for establishing or providing the emergency
1558 communications E911 service. It is the intent of the Legislature
1559 that all revenue from the fee be used as specified in subsection
1560 (2).
1561 Section 3. Subsection (1) of section 365.177, Florida
1562 Statutes, is amended to read:
1563 365.177 Transfer of E911 calls between systems.—
1564 (1) The office shall develop a plan by December 30, 2023
1565 February 1, 2020, to upgrade 911 public safety answering points
1566 within the state to allow the transfer of an emergency call from
1567 one local, multijurisdictional, or regional E911 system to
1568 another local, multijurisdictional, or regional E911 system in
1569 the state. Such transfer should include voice, text message,
1570 image, video, caller identification information, location
1571 information, and additional standards-based 911 call
1572 information.
1573 Section 4. Subsection (10) of section 212.05965, Florida
1574 Statutes, is amended to read:
1575 212.05965 Taxation of marketplace sales.—
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1576 (10) Notwithstanding any other law, the marketplace
1577 provider is also responsible for collecting and remitting any
1578 prepaid wireless public safety emergency communications systems
1579 E911 fee under s. 365.172, waste tire fee under s. 403.718, and
1580 lead-acid battery fee under s. 403.7185 at the time of sale for
1581 taxable retail sales made through its marketplace.
1582 Section 5. Section 365.171, Florida Statutes, is amended
1583 to read:
1584 365.171 Emergency communications number E911 state plan.—
1585 (1) SHORT TITLE.—This section may be cited as the "Florida
1586 Emergency Communications Number E911 State Plan Act."
1587 (2) LEGISLATIVE INTENT.—It is the intent of the
1588 Legislature that the communications number "911" be the
1589 designated emergency communications number. A public safety
1590 agency may not advertise or otherwise promote the use of any
1591 communications number for emergency response services other than
1592 "911." It is further the intent of the Legislature to implement
1593 and continually update a cohesive statewide emergency
1594 communications number "E911" plan for enhanced 911 services
1595 which will provide citizens with rapid direct access to public
1596 safety agencies by accessing "911" with the objective of
1597 reducing the response time to situations requiring law
1598 enforcement, fire, medical, rescue, and other emergency
1599 services.
1600 (3) DEFINITIONS.—As used in this section, the term:
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1601 (a) "Office" means the Division of Telecommunications
1602 within the Department of Management Services, as designated by
1603 the secretary of the department.
1604 (b) "Local government" means any city, county, or
1605 political subdivision of the state and its agencies.
1606 (c) "Public agency" means the state and any city, county,
1607 city and county, municipal corporation, chartered organization,
1608 public district, or public authority located in whole or in part
1609 within this state which provides, or has authority to provide,
1610 firefighting, law enforcement, ambulance, medical, or other
1611 emergency services.
1612 (d) "Public safety agency" means a functional division of
1613 a public agency which provides firefighting, law enforcement,
1614 medical, or other emergency services.
1615 (4) STATE PLAN.—The office shall develop, maintain, and
1616 implement appropriate modifications for a statewide emergency
1617 communications E911 system plan. The plan shall provide for:
1618 (a) The public agency emergency communications
1619 requirements for each entity of local government in the state.
1620 (b) A system to meet specific local government
1621 requirements. Such system shall include law enforcement,
1622 firefighting, and emergency medical services and may include
1623 other emergency services such as poison control, suicide
1624 prevention, and emergency management services.
1625 (c) Identification of the mutual aid agreements necessary
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1626 to obtain an effective emergency communications systems E911
1627 system.
1628 (d) A funding provision that identifies the cost necessary
1629 to implement the emergency communications E911 system.
1630
1631 The office shall be responsible for the implementation and
1632 coordination of such plan. The office shall adopt any necessary
1633 rules and schedules related to public agencies for implementing
1634 and coordinating the plan, pursuant to chapter 120.
1635 (5) SYSTEM DIRECTOR.—The secretary of the department or
1636 his or her designee is designated as the director of the
1637 statewide emergency communications number E911 system and, for
1638 the purpose of carrying out the provisions of this section, is
1639 authorized to coordinate the activities of the system with
1640 state, county, local, and private agencies. The director in
1641 implementing the system shall consult, cooperate, and coordinate
1642 with local law enforcement agencies.
1643 (6) REGIONAL SYSTEMS.—This section does not prohibit or
1644 discourage the formation of multijurisdictional or regional
1645 systems; and any system established pursuant to this section may
1646 include the jurisdiction, or any portion thereof, of more than
1647 one public agency. It is the intent of the Legislature t hat
1648 emergency communications services E911 service be available
1649 throughout the state. Expenditure by counties of the E911 fee
1650 authorized and imposed under s. 365.172 should support this
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1651 intent to the greatest extent feasible within the context of
1652 local service needs and fiscal capability. This section does not
1653 prohibit two or more counties from establishing a combined
1654 emergency E911 communications service by an interlocal agreement
1655 and using the fees authorized and imposed by s. 365.172 for such
1656 combined E911 service.
1657 (7) TELECOMMUNICATIONS INDUSTRY COORDINATION.—The office
1658 shall coordinate with the Florida Public Service Commission
1659 which shall encourage the Florida telecommunications in dustry to
1660 activate facility modification plans for timely emergency
1661 communications services E911 implementation.
1662 (8) COIN TELEPHONES.—The Florida Public Service Commission
1663 shall establish rules to be followed by the telecommunications
1664 companies in this state designed toward encouraging the
1665 provision of coin-free dialing of "911" calls wherever
1666 economically practicable and in the public interest.
1667 (9) SYSTEM APPROVAL.—No emergency communications number
1668 E911 system shall be established and no present syste m shall be
1669 expanded without prior approval of the office.
1670 (10) COMPLIANCE.—All public agencies shall assist the
1671 office in their efforts to carry out the intent of this section,
1672 and such agencies shall comply with the developed plan.
1673 (11) FEDERAL ASSISTANCE.—The secretary of the department
1674 or his or her designee may apply for and accept federal funding
1675 assistance in the development and implementation of a statewide
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1676 emergency communications number E911 system.
1677 (12) CONFIDENTIALITY OF RECORDS.—
1678 (a) Any record, recording, or information, or portions
1679 thereof, obtained by a public agency or a public safety agency
1680 for the purpose of providing services in an emergency and which
1681 reveals the name, address, telephone number, or personal
1682 information about, or information which may identify any person
1683 requesting emergency service or reporting an emergency by
1684 accessing an emergency communications E911 system is
1685 confidential and exempt from the provisions of s. 119.07(1) and
1686 s. 24(a), Art. I of the State Constitution, except that such
1687 record or information may be disclosed to a public safety
1688 agency. The exemption applies only to the name, address,
1689 telephone number or personal information about, or information
1690 which may identify any person requesting emergency service s or
1691 reporting an emergency while such information is in the custody
1692 of the public agency or public safety agency providing emergency
1693 services. A telecommunications company or commercial mobile
1694 radio service provider shall not be liable for damages to any
1695 person resulting from or in connection with such telephone
1696 company's or commercial mobile radio service provider's
1697 provision of any lawful assistance to any investigative or law
1698 enforcement officer of the State of Florida or political
1699 subdivisions thereof, of the United States, or of any other
1700 state or political subdivision thereof, in connection with any
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1701 lawful investigation or other law enforcement activity by such
1702 law enforcement officer unless the telecommunications company or
1703 commercial mobile radio service provider acted in a wanton and
1704 willful manner.
1705 (b) Notwithstanding paragraph (a), a 911 public safety
1706 telecommunicator, as defined in s. 401.465, may contact any
1707 private person or entity that owns an automated external
1708 defibrillator who has notified the local emergency medical
1709 services medical director or public safety answering point of
1710 such ownership if a confirmed coronary emergency call is taking
1711 place and the location of the coronary emergency is within a
1712 reasonable distance from the location of the defibrillator, and
1713 may provide the location of the coronary emergency to that
1714 person or entity.
1715 Section 6. Paragraph (b) of subsection (2) of section
1716 365.174, Florida Statutes, is amended to read:
1717 365.174 Proprietary confidential business information.—
1718 (2)
1719 (b) The Department of Revenue may provide information
1720 relative to s. 365.172(9) to the Secretary of Management
1721 Services, or his or her authorized agent, or to the Emergency
1722 Communications E911 Board established in s. 365.172(5) for use
1723 in the conduct of the official business of the Department of
1724 Management Services or the Emergency Communications E911 Board.
1725 Section 7. This act shall take effect July 1, 2023.
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CS/HB 745 by Rep. McFarland
Emergency Communications
AMENDMENT SUMMARY
April 10, 2023
Amendment 1 by Rep. Giallombardo (strike-all):
• Modifies the purposes of the Emergency Communications Board (Board) to
include:
o Promoting interoperability between public safety answering points
(PSAPs) through guidance and direction to counties and state agencies
that operate 911 centers.
o Establishing and administering allocations from the Emergency
Communications Trust Fund (Fund) for investment on public safety
communications and technology
o Providing technical assistance to rural counties.
• Removes provisions of the bill that require the Board to create and administer a
financial model dedicated to public safety communication and technology.
• Removes provisions of the bill that provide funding from the Board for state
agencies that operate 911 centers but retains Board authority to provide
guidance and direction to such agencies for purposes of achieving
interoperability.
• Specifies that four members of the Board must be county 911 coordinators and
provides for current 911 coordinators on the Board to complete their terms.
• Requires DMS to administer monthly disbursements and provide a monthly
report of such disbursements to the Board.
• Restores existing law related to the creation of the Prepaid Wireless Public
Safety Emergency Communications Systems Fee.
• Modifies the list of eligible expenditures from 911 fees.
• Allows the board to withhold future distribution of grant funds or request a return
of funds based on the findings of a financial audit.
• Specifies matters that must be addressed in a plan developed by DMS to
upgrade PSAPs to allow interjurisdictional transfers of emergency calls.
• Makes technical and conforming changes.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 745 (2023)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/O OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Commerce Committee
2 Representative Giallombardo offered the following:
3
4 Amendment (with title amendment)
5 Remove everything after the enacting clause and insert:
6 Section 1. Section 365.172, Florida Statutes, is amended
7 to read:
8 365.172 Emergency communications. number "E911."—
9 (1) SHORT TITLE.—This section may be cited as the
10 "Emergency Communications Number E911 Act."
11 (2) LEGISLATIVE INTENT.—It is the intent of the
12 Legislature to:
13 (a) Establish and implement a comprehensive statewide
14 emergency communications and response capability using modern
15 technologies and methods. telecommunications number system that
16 will provide users of voice communications services within the
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Amendment No. 1
17 state rapid direct access to public safety agencies by accessing
18 the telephone number "911."
19 (b) Provide funds to counties to pay certain costs
20 associated with their public safety emergency response
21 capabilities and costs incurred to purchase, upgrade, and
22 maintain 911 systems, computer aided dispatch, and systems to
23 create interoperable radio communications systems E911 or 911
24 systems, to contract for E911 services, and to reimburse
25 wireless telephone service providers for costs incurred to
26 provide 911 or E911 services.
27 (c) Levy a reasonable fee on users of voice communications
28 services, unless otherwise provided in this section, to
29 accomplish these purposes.
30 (d) Provide for an Emergency Communications Board E911
31 board to administer the fee, with oversight by the office, in a
32 manner that is competitively and technologically neutral as to
33 all voice communications services providers.
34 (e) Ensure that the fee established for emergency
35 communications systems is used exclusively for recovery by
36 wireless providers and by counties for costs associated with
37 developing and maintaining emergency communications E911 systems
38 and networks in a manner that is competitively and
39 technologically neutral as to all voice communications services
40 providers.
41
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Amendment No. 1
42 It is further the intent of the Legislature that the fee
43 authorized or imposed by this section not necessarily provide
44 the total funding required for establishing or providing
45 emergency communications systems and services E911 service.
46 (3) DEFINITIONS.—Only as used in this section and ss.
47 365.171, 365.173, 365.174, and 365.177, the term:
48 (a) "Authorized expenditures" means expenditures of the
49 fee, as specified in subsection (10).
50 (b) "Automatic location identification" means the
51 capability of the E911 service which enables the automatic
52 display of information that defines the approximate geographic
53 location of the wireless telephone, or the location of the
54 address of the wireline telephone, used to place a 911 call.
55 (c) "Automatic number identification" means the capability
56 of the E911 service which enables the automatic display of the
57 service number used to place a 911 call.
58 (d) "Board" or "Emergency Communications Board" "E911
59 Board" means the board of directors of the E911 Board
60 established in subsection (5).
61 (e) "Building permit review" means a review for compliance
62 with building construction standards adopted by the local
63 government under chapter 553 and does not include a review for
64 compliance with land development regulations.
65 (f) "Colocation Collocation" means the situation when a
66 second or subsequent wireless provider uses an existing
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Amendment No. 1
67 structure to locate a second or subsequent antennae. The term
68 includes the ground, platform, or roof installation of equipment
69 enclosures, cabinets, or buildings, and cables, brackets, and
70 other equipment associated with the location and operation of
71 the antennae.
72 (g) "Computer Aided Dispatch" or "CAD" means a
73 computerized system within a public safety answering point for
74 entering, tracking, dispatching, and resolving requests for
75 public safety services.
76 (h)(g) "Designed service" means the configuration and
77 manner of deployment of service the wireless provider has
78 designed for an area as part of its network.
79 (i)(h) "Enhanced 911" or "E911" means an enhanced 911
80 system or enhanced 911 service that is an emergency telephone
81 system or service that provides a subscriber with 911 service
82 and, in addition, directs 911 calls to appropriate public safety
83 answering points by selective routing based on the geographical
84 location from which the call originated, or as otherwise
85 provided in the state plan under s. 365.171, and that provides
86 for automatic number identification and automatic location -
87 identification features. The 911 E911 service provided by a
88 wireless provider means E911 as defined in the order.
89 (j)(i) "Existing structure" means a structure that exists
90 at the time an application for permission to place antennae on a
91 structure is filed with a local government. The term include s
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92 any structure that can structurally support the attachment of
93 antennae in compliance with applicable codes.
94 (k)(j) "Fee" or "public safety emergency communications
95 systems fee" means the E911 fee authorized and imposed under
96 subsections (8) and (9).
97 (l)(k) "Fund" means the Emergency Communications Number
98 E911 System Trust Fund established in s. 365.173 and maintained
99 under this section for the purpose of recovering the costs
100 associated with providing emergency communications 911 service
101 or E911 service, including the costs of implementing the order.
102 The fund shall be segregated into wireless, prepaid wireless,
103 and nonwireless categories.
104 (m)(l) "Historic building, structure, site, object, or
105 district" means any building, structure, site, object, or
106 district that has been officially designated as a historic
107 building, historic structure, historic site, historic object, or
108 historic district through a federal, state, or local designation
109 program.
110 (n)(m) "Land development regulations" means any ordinance
111 enacted by a local government for the regulation of any aspect
112 of development, including an ordinance governing zoning,
113 subdivisions, landscaping, tree protection, or signs, the local
114 government's comprehensive plan, or any other ordinance
115 concerning any aspect of the development of land. The term does
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116 not include any building construction standard adopted under and
117 in compliance with chapter 553.
118 (o)(n) "Local exchange carrier" means a "competitive local
119 exchange telecommunications company" or a "local exchange
120 telecommunications company" as defined in s. 364.02.
121 (p)(o) "Local government" means any municipality, county,
122 or political subdivision or agency of a municipality, county, or
123 political subdivision.
124 (q)(p) "Medium county" means any county that has a
125 population of 75,000 or more but less than 750,000.
126 (r)(q) "Mobile telephone number" or "MTN" means the
127 telephone number assigned to a wireless telephone at the time of
128 initial activation.
129 (s) "Next Generation 911" or "NG911" means an Internet
130 Protocol(IP)-based system comprised of managed Emergency
131 Services IP networks (ESInets), functional elements
132 (applications), and databases that replicate traditional E911
133 features and functions and provides additional capabilities. The
134 NG911 system is designed to provide access to emergency services
135 from all connected communications sources and provide multimedia
136 data capabilities for public safety answering points and other
137 emergency service organizations.
138 (t)(r) "Nonwireless category" means the revenues to the
139 fund received from voice communications services providers other
140 than wireless providers.
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141 (u)(s) "Office" means the Division of Telecommunications
142 within the Department of Management Services, as designated by
143 the secretary of the department.
144 (v)(t) "Order" means:
145 1. The following orders and rules of the Federal
146 Communications Commission issued in FCC Docket No. 94 -102:
147 a. Order adopted on June 12, 1996, with an effective date
148 of October 1, 1996, the amendments to s. 20.03 and the creation
149 of s. 20.18 of Title 47 of the Code of Federal Regulations
150 adopted by the Federal Communications Commission pursuant to
151 such order.
152 b. Memorandum and Order No. FCC 97-402 adopted on December
153 23, 1997.
154 c. Order No. FCC DA 98-2323 adopted on November 13, 1998.
155 d. Order No. FCC 98-345 adopted December 31, 1998.
156 2. Orders and rules subsequently adopted by the Federal
157 Communications Commission relating to the provision of 911
158 services, including Order Number FCC-05-116, adopted May 19,
159 2005.
160 (w)(u) "Prepaid wireless category" means all revenues in
161 the fund received through the Department of Revenue from the fee
162 authorized and imposed under subsection (9).
163 (x)(v) "Prepaid wireless service" means a right to access
164 wireless service that allows a caller to contact and interact
165 with 911 to access the 911 system, which service must be paid
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166 for in advance and is sold in predetermined units or dollars,
167 which units or dollars expire on a predetermined schedule or are
168 decremented on a predetermined basis in exchange for the right
169 to access wireless service.
170 (y)(w) "Public agency" means the state and any
171 municipality, county, municipal corporation, or other
172 governmental entity, public district, or public authority
173 located in whole or in part within this state which provides, or
174 has authority to provide, firefighting, law enforcement,
175 ambulance, medical, or other emergency services.
176 (z)(x) "Public safety agency" means a functional division
177 of a public agency which provides firefighting, law enforcement,
178 medical, or other emergency services.
179 (aa)(y) "Public safety answering point," "PSAP," or
180 "answering point" means the public safety agency that receives
181 incoming 911 requests for assistance and dispatches appropriate
182 public safety agencies to respond to the requests in accordance
183 with the state E911 plan.
184 (bb)(z) "Rural county" means any county that has a
185 population of fewer than 75,000.
186 (cc)(aa) "Service identifier" means the service number,
187 access line, or other unique identifier assigned to a subscriber
188 and established by the Federal Communications Commission for
189 purposes of routing calls whereby the subscriber has access to
190 the E911 system.
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191 (dd)(bb) "Tower" means any structure designed primarily to
192 support a wireless provider's antennae.
193 (ee)(cc) "Voice communications services" means two-way
194 voice service, through the use of any technology, which actually
195 provides access to 911 E911 services, and includes
196 communications services, as defined in s. 202.11, which actually
197 provide access to 911 E911 services and which are required to be
198 included in the provision of 911 E911 services pursuant to
199 orders and rules adopted by the Federal Communications
200 Commission. The term includes voice-over-Internet-protocol
201 service. For the purposes of this section, the term "voice -over-
202 Internet-protocol service" or "VoIP service" means
203 interconnected VoIP services having the following
204 characteristics:
205 1. The service enables real-time, two-way voice
206 communications;
207 2. The service requires a broadband connection from the
208 user's locations;
209 3. The service requires IP-compatible customer premises
210 equipment; and
211 4. The service offering allows users generally to receive
212 calls that originate on the public switched telephone network
213 and to terminate calls on the public switched telephone network.
214 (ff)(dd) "Voice communications services provider" or
215 "provider" means any person or entity providing voice
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216 communications services, except that the term does not include
217 any person or entity that resells voice communications services
218 and was assessed the fee authorized and imposed under subsection
219 (8) by its resale supplier.
220 (gg)(ee) "Wireless 911 system" or "wireless 911 service"
221 means an emergency telephone system or service that provides a
222 subscriber with the ability to reach an answering point by
223 accessing the digits 911.
224 (hh)(ff) "Wireless category" means the revenues to the
225 fund received from a wireless provider from the fee authorized
226 and imposed under subsection (8).
227 (ii)(gg) "Wireless communications facility" means any
228 equipment or facility used to provide service and may in clude,
229 but is not limited to, antennae, towers, equipment enclosures,
230 cabling, antenna brackets, and other such equipment. Placing a
231 wireless communications facility on an existing structure does
232 not cause the existing structure to become a wireless
233 communications facility.
234 (jj)(hh) "Wireless provider" means a person who provides
235 wireless service and:
236 1. Is subject to the requirements of the order; or
237 2. Elects to provide wireless 911 service, or E911
238 service, or NG911 service in this state.
239 (kk)(ii) "Wireless service" means "commercial mobile radio
240 service" as provided under ss. 3(27) and 332(d) of the Federal
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241 Telecommunications Act of 1996, 47 U.S.C. ss. 151 et seq., and
242 the Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-
243 66, August 10, 1993, 107 Stat. 312. The term includes service
244 provided by any wireless real-time two-way wire communication
245 device, including radio-telephone communications used in
246 cellular telephone service; personal communications service; or
247 the functional or competitive equivalent of a radio-telephone
248 communications line used in cellular telephone service, a
249 personal communications service, or a network radio access line.
250 The term does not include wireless providers that offer mainly
251 dispatch service in a more localized, noncellular configuration;
252 providers offering only data, one-way, or stored-voice services
253 on an interconnected basis; providers of air-to-ground services;
254 or public coast stations.
255 (4) POWERS AND DUTIES OF THE OFFICE.—The office shall
256 oversee the administration of the fee authorized and imposed
257 under subsections (8) and (9).
258 (5) THE EMERGENCY COMMUNICATIONS E911 BOARD.—
259 (a) The Emergency Communications E911 Board is established
260 to administer, with oversight by the office, to:
261 1. Promote interoperability between public safety
262 answering points by providing guidance and direction to counties
263 and state agencies that operate 911 centers for the deployment
264 of emergency communications infrastructure and the handling of
265 emergency communications information, such as voice, text, data,
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266 and images, from receipt at a PSAP to dispatching to responders;
267 and
268 2. Establish and administer allocations from the fund
269 dedicated to investing in public safety communications and
270 technology for 911; and
271 3. Provide technical assistance and guidance to rural
272 counties as needed.
273 (b) Public safety funding under paragraph (a) must focus
274 on, but not be limited to:
275 1. Next Generation 911.
276 2. Emergency Services IP Network (ESInet).
277 3. Computer Aided Dispatch (CAD).
278 4. PSAP technology to interface with:
279 a. Land Mobile Radio (LMR).
280 b. Smart city technology data.
281 c. In-Building Coverage.
282 5. Emergency Communications Broadband Networks.
283 6. Cybersecurity.
284 , with oversight by the office, the fee imposed under
285 subsections (8) and (9), including receiving revenues derived
286 from the fee; distributing portions of the revenues to wireless
287 providers, counties, and the office; accounting for receipts,
288 distributions, and income derived by the funds maintained in the
289 fund; and providing annual reports to the Governor and the
290 Legislature for submission by the office on amounts collected
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291 and expended, the purposes for which expenditures have been
292 made, and the status of E911 service in this state. In order to
293 advise and assist the office in implementing the purposes of
294 this section, the board, which has the power of a body
295 corporate, has the powers enumerated in subsection (6).
296 (c)(b) The board shall consist of nine 11 members, one of
297 whom must be the system director designated under s. 365.171(5),
298 or his or her designee, who shall serve as the chair of the
299 board. The remaining eight 10 members of the board shall be
300 appointed by the Governor. All members shall be Florida
301 residents. The board must be comprised of four county 911
302 coordinators with consideration given to rural, medium, and
303 large counties, and four members from fields including, but not
304 limited to: law enforcement, fire response, emergency medical
305 services, public safety dispatch, and telecommunications. and
306 must be composed of 5 county 911 coordinators, consisting of a
307 representative from a rural county, a representative from a
308 medium county, a representative from a large county, and 2 at -
309 large representatives recommended by the Florida Association of
310 Counties in consultation with the county 911 coordinators; 3
311 local exchange carrier member representatives, one of whom must
312 be a representative of the local exchange carrier having the
313 greatest number of access lines in the state and one of whom
314 must be a representative of a certificated competitive local
315 exchange telecommunications company; and 2 member
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316 representatives from the wireless telecommunications industry,
317 with consideration given to wireless providers that are not
318 affiliated with local exchange carriers. Not more than one
319 member may be appointed to represent any single provider on the
320 board.
321 (d)(c) The system director, designated under s.
322 365.171(5), or his or her designee, must be a permanent member
323 of the board. Each of the remaining eight 10 members of the
324 board shall be appointed to a 4-year term and may not be
325 appointed to more than two successive terms. However, for the
326 purpose of staggering terms, three two of the original board
327 members shall be appointed to terms of 4 years, three two shall
328 be appointed to terms of 3 years, and two four shall be
329 appointed to terms of 2 years, as designated by the Governor. A
330 vacancy on the board shall be filled in the same manner as the
331 original appointment. Current 911 coordinators serving on the
332 board will complete their terms while other positions will be
333 filled immediately.
334 (e) The board shall advocate and develop policy
335 recommendations for ensuring interoperability of and
336 connectivity between public safety communication systems within
337 the state, including, but not limited to, recommendations
338 related to the following:
339 1. Call routing accuracy and timeliness of response.
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340 2. Improved interagency communication and situational
341 awareness.
342 3. Improved interagency system connectivity.
343 4. Improved response times.
344 5. Maximized use of emerging technologies.
345 6. Improved lifecycle management of the systems,
346 equipment, and services that enable responders and public safety
347 officials to share information securely.
348 7. Governance, policy, and procedure across public safety
349 agencies.
350 8. Establishment of resilient and secure emergency
351 communication systems to reduce cybersecurity threats and
352 vulnerabilities.
353 (f) The board shall administer the fee imposed un der
354 subsections (8) and (9), including receiving revenues derived
355 from the fee; distributing portions of the revenues to counties
356 and the office; accounting for receipts, distributions, and
357 income derived by the funds maintained in the fund; and
358 providing annual reports for review and submission to the
359 Governor and the Legislature on amounts collected and expended,
360 the purposes for which expenditures have been made, and the
361 status of emergency communication services in this state.
362 (g) The board may create subcommittees to advise the
363 board, as needed.
364 (6) AUTHORITY OF THE BOARD; ANNUAL REPORT.—
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365 (a) The board shall:
366 1. Administer the public safety emergency communications
367 systems E911 fee.
368 2. Implement, maintain, and oversee the fund.
369 3. Review and oversee the disbursement of the revenues
370 deposited into the fund as provided in s. 365.173.
371 a. The board may establish a schedule for implementing
372 wireless NG911 systems, public safety radio communications
373 systems, and other public safety communications improvements
374 E911 service by service area, and prioritize disbursements of
375 revenues from the fund to providers and rural counties as
376 provided in s. 365.173(2)(f) s. 365.173(2)(e) and (g) pursuant
377 to the schedule, in order to implement 911 E911 services in the
378 most efficient and cost-effective manner.
379 b. For grants made available under s. 365.173(2)(g), the
380 board shall provide 90 days' written notice to all counties and
381 publish electronically an approved application process.
382 Applications shall be prioritized based on the availability of
383 grant funds, current system life expectancy, and system
384 replacement needs. The board shall take all actions within its
385 authority to ensure that county recipients of such funds use
386 these funds only for the purpose under which they have been
387 provided and may take any actions within its authority to secure
388 county repayment of revenues upon a determination that the funds
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389 were not used for the purpose for which the funds were
390 disbursed.
391 b. Revenues in the fund which have not been disbursed
392 because sworn invoices as required by s. 365.173(2)(e) have not
393 been submitted to the board may be used by the board as needed
394 to provide grants to counties for the purpose of upgrading E911
395 systems. The counties must use the funds only for capital
396 expenditures or remotely provided hosted 911 answering point
397 call-taking equipment and network services directly attributable
398 to establishing and provisioning E911 services, which may
399 include next-generation deployment. Prior to the distribution of
400 grants, the board shall provide 90 days' written notice to all
401 counties and publish electronically an approved application
402 process. County grant applications shall be prioritized based on
403 the availability of funds, current system life expectancy,
404 system replacement needs, and Phase II compliance per the
405 Federal Communications Commission. No grants will be available
406 to any county for next-generation deployment until all counties
407 are Phase II complete. The board shall take all actions within
408 its authority to ensure that county recipients of such grants
409 use these funds only for the purpose under which they have been
410 provided and may take any actions within its authority to secure
411 county repayment of grant revenues upon determination that the
412 funds were not used for the purpose under which they were
413 provided.
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414 c. When determining the funding provided in a state 911
415 grant application request, the board shall take into account
416 information on the amount of carryforward funds retained by the
417 counties. The information will be based on the amount of county
418 carryforward funds reported in the financial audit required in
419 s. 365.173(2)(d). E911 State Grant Program funding requests will
420 be limited by any county carryforward funds in excess of the
421 allowable 30 percent amount of fee revenue calculated on a 2-
422 year basis.
423 d. The board shall reimburse all costs of a wireless
424 provider in accordance with s. 365.173(2)(e) before taking any
425 action to transfer additional funds.
426 e. After taking the action required in sub-subparagraphs
427 a.-d., the board may review and, with all members participating
428 in the vote, adjust the percentage allocations or adjust the
429 amount of the fee as provided under paragraph (8)(g), and, if
430 the board determines that the revenues in the wirel ess category
431 exceed the amount needed to reimburse wireless providers for the
432 cost to implement E911 services, the board may transfer revenue
433 to the counties from the existing funds within the wireless
434 category. The board shall disburse the funds equitably to all
435 counties using a timeframe and distribution methodology
436 established by the board.
437 4. Review documentation submitted by wireless providers
438 which reflects current and projected funds derived from the fee .
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439 , and the expenses incurred and expected to be incurred in order
440 to comply with the E911 service requirements contained in the
441 order for the purposes of:
442 a. Ensuring that wireless providers receive fair and
443 equitable distributions of funds from the fund.
444 b. Ensuring that wireless providers are not provided
445 disbursements from the fund which exceed the costs of providing
446 E911 service, including the costs of complying with the order.
447 c. Ascertaining the projected costs of compliance with the
448 requirements of the order and projected collections of the fee.
449 d. Implementing changes to the allocation percentages or
450 adjusting the fee under paragraph (8)(h).
451 5. Implement changes to the allocation percentages or
452 adjust the fee pursuant to s. 365.173.
453 6.5. Meet monthly in the most efficient and cost-effective
454 manner, including telephonically when practical, for the
455 business to be conducted. The office will administer the
456 disbursement of funds to counties and provide a monthly report
457 of such disbursements to the Board. approve or reject, in whole
458 or in part, applications submitted by wireless providers for
459 recovery of moneys deposited into the wireless category, and to
460 authorize the transfer of, and distribute, the fee allocation to
461 the counties.
462 7.6. Hire and retain employees, which may include an
463 independent executive director who shall possess experience in
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464 the area of telecommunications and emergency 911 issues, for the
465 purposes of performing the technical and administrative
466 functions for the board.
467 8.7. Make and enter into contracts, pursuant to chapter
468 287, and execute other instruments necessary or convenient for
469 the exercise of the powers and functions of the board.
470 9.8. Sue and be sued, and appear and defend in all actions
471 and proceedings, in its corporate name to the same extent as a
472 natural person.
473 10.9. Adopt, use, and alter a common corporate seal.
474 11.10. Elect or appoint the officers and agents that are
475 required by the affairs of the board.
476 12.11. The board may adopt rules under ss. 120.536(1) and
477 120.54 to implement this section and ss. 365.173 and 365.174.
478 13.12. Provide coordination, support, and technical
479 assistance to counties to promote the deployment of advanced
480 public safety emergency communications 911 and E911 systems in
481 the state.
482 14.13. Provide coordination and support for educational
483 opportunities related to 911 E911 issues for the public safety
484 emergency communications E911 community in this state.
485 15.14. Act as an advocate for issues related to public
486 safety emergency communications E911 system functions, features,
487 and operations to improve the delivery of public safety
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488 emergency communications E911 services to the residents of and
489 visitors to this state.
490 16.15. Coordinate input from this state at national forums
491 and associations, to ensure that policies related to public
492 safety emergency communications E911 systems and services are
493 consistent with the policies of the public safety emergency
494 communications E911 community in this state.
495 17.16. Work cooperatively with the system director
496 established in s. 365.171(5) to enhance the state of public
497 safety emergency communications E911 services in this state and
498 to provide unified leadership for all public safety emergency
499 communications E911 issues through planning and coordination.
500 18.17. Do all acts and things necessary or convenient to
501 carry out the powers granted in this section in a manner that is
502 competitively and technologically neutral as to all voice
503 communications services providers, including, but not limited
504 to, consideration of emerging technology and related cost
505 savings, while taking into account embedded costs in current
506 systems.
507 19.18. Have the authority to secure the services of an
508 independent, private attorney via invitation to bid, request for
509 proposals, invitation to negotiate, or professional contracts
510 for legal services already established at the Division of
511 Purchasing of the Department of Management Services.
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512 (b) Board members shall serve without compensation;
513 however, members are entitled to per diem and travel expenses as
514 provided in s. 112.061.
515 (c) By February 28 of each year, the board shall prepare a
516 report for submission by the office to the Governor, the
517 President of the Senate, and the Speaker of the House of
518 Representatives which addresses for the immediately preceding
519 state fiscal year and county fiscal year:
520 1. The annual receipts, including the total amount of fee
521 revenues collected by each provider, the total disbursements of
522 money in the fund, including the amount of fund-reimbursed
523 expenses incurred by each wireless provider to comply with the
524 order, and the amount of moneys on deposit in the fund.
525 2. Whether the amount of the fee and the allocation
526 percentages set forth in s. 365.173 have been or should be
527 adjusted to comply with the requirements of the order or other
528 provisions of this chapter, and the reasons for making or not
529 making a recommended adjustment to the fee.
530 3. Any other issues related to providing emergency
531 communications E911 services.
532 4. The status of public safety emergency communications
533 E911 services in this state.
534 (7) REQUEST FOR PROPOSALS FOR INDEPENDENT ACCOUNTING
535 FIRM.—
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536 (a) The board shall issue a request for proposals as
537 provided in chapter 287 for the purpose of retaining an
538 independent accounting firm. The independent accounting firm
539 shall perform all material administrative and accounting tasks
540 and functions required for administering the fee. The request
541 for proposals must include, but need not be limited to:
542 1. A description of the scope and general requirements of
543 the services requested.
544 2. A description of the specific accounting and reporting
545 services required for administering the fund, including
546 processing checks and distributing funds as directed by the
547 board under s. 365.173.
548 3. A description of information to be provided by the
549 proposer, including the proposer's background and qualifications
550 and the proposed cost of the services to be provided.
551 (b) The board shall establish a committee to review
552 requests for proposals which must include the statewide
553 emergency communications systems E911 system director designated
554 under s. 365.171(5), or his or her designee, and two members of
555 the board, one of whom is a county 911 coordinator and one of
556 whom represents a voice communications services provider . The
557 review committee shall review the proposals received by the
558 board and recommend an independent accounting firm to the board
559 for final selection. By agreeing to serve on the review
560 committee, each member of the review committee shall verify that
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561 he or she does not have any interest or employment, directly or
562 indirectly, with potential proposers which conflicts in any
563 manner or degree with his or her performance on the committee.
564 (c) The board may secure the services of an independent
565 accounting firm via invitation to bid, request for proposals,
566 invitation to negotiate, or professional contracts already
567 established at the Division of Purchasing, Department of
568 Management Services, for certified public accounting firms, or
569 the board may hire and retain professional accounting staff to
570 accomplish these functions.
571 (8) PUBLIC SAFETY EMERGENCY COMMUNICATIONS SYSTEMS E911
572 FEE.—
573 (a) Each voice communications services provider shal l
574 collect the fee described in this subsection, except that the
575 fee for prepaid wireless service shall be collected in the
576 manner set forth in subsection (9). Each provider, as part of
577 its monthly billing process, shall bill the fee as follows. The
578 fee shall not be assessed on any pay telephone in the state.
579 1. Each voice communications service provider other than a
580 wireless provider shall bill the fee to a subscriber based on
581 the number of access lines having access to the 911 E911 system,
582 on a service-identifier basis, up to a maximum of 25 access
583 lines per account bill rendered.
584 2. Each voice communications service provider other than a
585 wireless provider shall bill the fee to a subscriber on a basis
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586 of five service-identified access lines for each digital
587 transmission link, including primary rate interface service or
588 equivalent Digital-Signal-1-level service, which can be
589 channelized and split into 23 or 24 voice-grade or data-grade
590 channels for communications, up to a maximum of 25 access lines
591 per account bill rendered.
592 3. Except in the case of prepaid wireless service, each
593 wireless provider shall bill the fee to a subscriber on a per -
594 service-identifier basis for service identifiers whose primary
595 place of use is within this state. The fee may shall not be
596 assessed on or collected from a provider with respect to an end
597 user's service if that end user's service is a prepaid wireless
598 service sold before January 1, 2015.
599 4. Except in the case of prepaid wireless service, each
600 voice communications services provider not addressed under
601 subparagraphs 1., 2., and 3. shall bill the fee on a per -
602 service-identifier basis for service identifiers whose primary
603 place of use is within the state up to a maximum of 25 service
604 identifiers for each account bill rendered.
605
606 The provider may list the fee as a separate entry on each bill,
607 in which case the fee must be identified as a fee for 911 E911
608 services. A provider shall remit the fee to the board only if
609 the fee is paid by the subscriber. If a provider receives a
610 partial payment for a monthly bill from a subscriber, the amount
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611 received shall first be applied to the payment due the provider
612 for providing voice communications service.
613 (b) A provider is not obligated to take any legal action
614 to enforce collection of the fees for which any subscriber is
615 billed. A county subscribing to 911 service remains liable to
616 the provider delivering the 911 service or equipment for any 911
617 service, equipment, operation, or maintenance charge owed by the
618 county to the provider.
619 (c) For purposes of this subsection, the state and local
620 governments are not subscribers.
621 (d) Each provider may retain 1 percent of the amount of
622 the fees collected as reimbursement for the administrative costs
623 incurred by the provider to bill, collect, and remit the fee.
624 The remainder shall be delivered to the board and deposited by
625 the board into the fund. The board shall distribute the
626 remainder pursuant to s. 365.173.
627 (e) Voice communications services providers billing the
628 fee to subscribers shall deliver revenues from the fee to the
629 board within 60 days after the end of the month in which the fee
630 was billed, together with a monthly report of the number of
631 service identifiers in each county. Each wireless provider and
632 other applicable provider identified in subparagraph (a)4. shall
633 report the number of service identifiers for subscribers whose
634 place of primary use is in each county. All provider subscriber
635 information provided to the board is subject to s. 365.174. If a
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636 provider chooses to remit any fee amounts to the board before
637 they are paid by the subscribers, a provider may apply to the
638 board for a refund of, or may take a credit for, any such fees
639 remitted to the board which are not collected by the provider
640 within 6 months following the month in which the fees are
641 charged off for federal income tax purposes as bad debt.
642 (f) The rate of the fee may not exceed 50 cents per month
643 for each service identifier. Effective January 1, 2015, the fee
644 shall be 40 cents per month for each service identifier. The fee
645 shall apply uniformly and be imposed throughout the state,
646 except for those counties that, before July 1, 2007, had adopted
647 an ordinance or resolution establishing a fee less than 50 cents
648 per month per access line. In those counties the fee estab lished
649 by ordinance may be changed only to the uniform statewide rate
650 no sooner than 30 days after notification is made by the
651 county's board of county commissioners to the board .
652 (g) The board may adjust the allocation percentages for
653 distribution of the fund as provided in s. 365.173. No sooner
654 than June 1, 2015, the board may adjust the rate of the fee
655 under paragraph (f) based on the criteria in this paragraph and
656 paragraph (h). Any adjustment in the rate must be approved by a
657 two-thirds vote of the total number of E911 board members. When
658 setting the percentages or contemplating any adjustments to the
659 fee, the board shall consider the following:
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660 1. The revenues currently allocated for wireless service
661 provider costs for implementing E911 service and projected costs
662 for implementing E911 service, including recurring costs for
663 Phase I and Phase II and the effect of new technologies;
664 1.2. The appropriate level of funding needed to fund the
665 rural grant program provided for in s. 365.173(2)(f) s.
666 365.173(2)(g); and
667 2.3. The need to fund statewide, regional, and county
668 grants in accordance with sub-subparagraph (6)(a)3.b. and s.
669 365.173(2)(g) s. 365.173(2)(h).
670 (h) The board may adjust the allocation percentages or
671 adjust the amount of the fee as provided in paragraph (g) if
672 necessary to ensure full cost recovery or prevent over recovery
673 overrecovery of costs incurred in the provision of 911 E911
674 service, including costs incurred or projected to be incurred to
675 comply with the order. Any new allocation percentages or reduced
676 or increased fee may not be adjusted for 1 year. In no event
677 shall the fee exceed 50 cents per month for each service
678 identifier. The fee, and any board adjustment of the fee, shall
679 be uniform throughout the state, except for the counties
680 identified in paragraph (f). No less than 90 days before the
681 effective date of any adjustment to the fee, the board shall
682 provide written notice of the adjusted fee amount and effective
683 date to each voice communications services provider from which
684 the board is then receiving the fee.
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685 (i) It is the intent of the Legislature that all revenue
686 from the fee be used as specified in s. 365.173(2)(a)-(h) s.
687 365.173(2)(a)-(i).
688 (j) State and local taxes do not apply to the fee. The
689 amount of the E911 fee collected by a provider may not be
690 included in the base for imposition of any tax, fee, surcharge,
691 or other charge imposed by this state, any political subdivision
692 of this state, or any intergovernmental agency.
693 (k) A local government may not levy the fee or any
694 additional fee on providers or subscribers for the provision of
695 911 E911 service.
696 (l) For purposes of this section, the definitions
697 contained in s. 202.11 and the provisions of s. 202.155 apply in
698 the same manner and to the same extent as the definitions and
699 provisions apply to the taxes levied under chapter 202 on mobile
700 communications services.
701 (9) PREPAID WIRELESS PUBLIC SAFETY EMERGENCY
702 COMMUNICATIONS SYSTEMS E911 FEE.—
703 (a) Effective January 1, 2015, a prepaid wireless E911 fee
704 is imposed per retail transaction at the rate established in
705 paragraph (8)(f). In order to allow sellers of all sizes and
706 technological capabilities adequate time to comply with this
707 subsection, a seller of prepaid wireless service operating in
708 this state before the prepaid wireless E911 fee is imposed shall
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709 retain 100 percent of the fee collected under this paragraph for
710 the first 2 months to offset the cost of setup.
711 (a)(b) Effective March 1, 2015, the prepaid wireless E911
712 fee imposed under paragraph (a) shall be subject to remittance
713 in accordance with paragraph (f) (g). In no event shall the fee
714 exceed 50 cents for each retail transaction. At least 90 days
715 before the effective date of any adjustment to the fee under
716 paragraph (8)(g), the Department of Revenue shall provide
717 written notice of the adjusted fee amount and its effective date
718 to each seller from which the department is then receiving the
719 fee. At least 120 days before the effective date of any
720 adjustment to the fee imposed under this subsection, the board
721 shall provide notice to the Department of Revenue of the
722 adjusted fee amount and effective date of the adjustment.
723 (b)(c) The prepaid wireless E911 fee shall be collected by
724 the seller from the consumer with respect to each retail
725 transaction occurring in this state. The amount of the prepaid
726 wireless E911 fee shall be separately stated on an invoice,
727 receipt, or other similar document that is provided to the
728 consumer by the seller or otherwise disclosed to the consumer.
729 (c)(d) For purposes of paragraph (b) (c), a retail
730 transaction that takes place in person by a consumer at a
731 business location of the seller shall be treated as occurring in
732 this state if that business location is in this state. Such
733 transaction is deemed to have occurred in the county of the
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734 business location. When a retail transaction does not take place
735 at the seller's business location, the transaction shall be
736 treated as taking place at the consumer's shipping address or,
737 if no item is shipped, at the consumer's address or the location
738 associated with the consumer's mobile telephone number. Such
739 transaction is deemed to have occurred in the county of the
740 consumer's shipping address when items are shipped to the
741 consumer or, when no items are shipped, the county of the
742 consumer's address or the location associated with the
743 consumer's mobile telephone number. A transaction for which the
744 specific Florida county cannot be determined shall be treated as
745 nonspecific.
746 (d)(e) If a prepaid wireless device is sold for a single,
747 nonitemized price with a prepaid wireless service of 10 minutes
748 or less or $5 or less, the seller may elect not to apply the
749 prepaid wireless E911 fee to the transaction.
750 (e)(f) The amount of the prepaid wireless E911 fee that is
751 collected by a seller from a consumer and that is separately
752 stated on an invoice, receipt, or similar document provided to
753 the consumer by the seller, may not be included in the base for
754 imposition of any tax, fee, surcharge, or other charge that is
755 imposed by this state, any political subdivision of this state,
756 or any intergovernmental agency.
757 (f)(g) Beginning April 1, 2015, each seller shall file a
758 return and remit the prepaid wireless E911 fees collected in the
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759 previous month to the Department of Revenue on or before the
760 20th day of the month. If the 20th day falls on a Saturday,
761 Sunday, or legal holiday, payments accompanied by returns are
762 due on the next succeeding day that is not a Saturday, Sunday,
763 or legal holiday observed by federal or state agencies as
764 defined in chapter 683 and s. 7503 of the Internal Revenue Code
765 of 1986, as amended. A seller may remit the prepaid wireless
766 E911 fee by electronic funds transfer and file a fee return with
767 the Department of Revenue that is initiated through an
768 electronic data interchange.
769 1. When a seller is authorized by the Department of
770 Revenue pursuant to s. 212.11(1)(c) or (d) to file a sales and
771 use tax return on a quarterly, semiannual, or annual reporting
772 basis, the seller may file a return and remit the prepaid
773 wireless E911 fees on or before the 20th day of the month
774 following the authorized reporting period for sales and use tax.
775 2. A seller collecting less than $50 per month of prepaid
776 wireless E911 fees may file a quarterly return for the calendar
777 quarters ending in March, June, September, and December. The
778 seller must file a return and remit the prepaid wireless E911
779 fees collected during each calendar quarter on or before the
780 20th day of the month following that calendar quarter.
781 3. A seller must provide the following information on each
782 prepaid wireless E911 fee return filed with the Department of
783 Revenue:
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784 a. The seller's name, federal identification number,
785 taxpayer identification number issued by the Department of
786 Revenue, business location address and mailing address, and
787 county of the business location in accordance with paragraph (c)
788 (d);
789 b. The reporting period;
790 c. The number of prepaid wireless services sold during the
791 reporting period;
792 d. The amount of prepaid wireless E911 fees collected and
793 the amount of any adjustments to the fees collected;
794 e. The amount of any retailer collection allowance
795 deducted from the amount of prepaid wireless E911 fees
796 collected; and
797 f. The amount to be remitted to the Department of Revenue.
798 4. A seller who operates two or more business locations
799 for which returns are required to be filed with the Department
800 of Revenue may file a consolidated return reporting and
801 remitting the prepaid wireless E911 fee for all business
802 locations. Such sellers must report the prepaid wireless E911
803 fees collected in each county, in accordance with paragraph (c)
804 (d), on a reporting schedule filed with the fee return.
805 5. A return is not required for a reporting period whe n no
806 prepaid wireless E911 fee is to be remitted for that period.
807 6. Except as provided in this section, the Department of
808 Revenue shall administer, collect, and enforce the fee under
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Amendment No. 1
809 this subsection pursuant to the same procedures used in the
810 administration, collection, and enforcement of the general state
811 sales tax imposed under chapter 212. The provisions of chapter
812 212 regarding authority to audit and make assessments, keeping
813 of books and records, and interest and penalties on delinquent
814 fees shall apply. The provisions of estimated tax liability in
815 s. 212.11(1)(a) do not apply to the prepaid wireless E911 fee.
816 (g)(h) A seller of prepaid wireless services in this state
817 must register with the Department of Revenue for each place of
818 business as required by s. 212.18(3) and the Department of
819 Revenue's administrative rule regarding registration as a sales
820 and use tax dealer. A separate application is required for each
821 place of business. A valid certificate of registration issued by
822 the Department of Revenue to a seller for sales and use tax
823 purposes is sufficient for purposes of the registration
824 requirement of this subsection. There is no fee for registration
825 for remittance of the prepaid wireless E911 fee.
826 (h)(i) The Department of Revenue shall deposit the funds
827 remitted under this subsection into the Audit and Warrant
828 Clearing Trust Fund established in s. 215.199 and retain up to
829 3.2 percent of the funds remitted under this subsection to
830 reimburse its direct costs of administering the collection and
831 remittance of prepaid wireless E911 fees. Thereafter, the
832 Department of Revenue shall transfer all remaining funds
833 remitted under this subsection to the Emergency Communications
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Amendment No. 1
834 Number E911 System Trust Fund monthly for use as provided in s.
835 365.173.
836 (i)(j) Beginning March 1, 2015, a seller may retain 5
837 percent of the prepaid wireless E911 fees that are collected by
838 the seller from consumers as a retailer collection allowance.
839 (j)(k) A provider or seller of prepaid wireless service is
840 not liable for damages to any person resulting from or incurred
841 in connection with providing or failing to provide emergency
842 communications and 911 or E911 service or for identifying or
843 failing to identify the telephone number, address, location, or
844 name associated with any person or device that is accessing or
845 attempting to access emergency communications and 911 or E911
846 service.
847 (k)(l) A provider or seller of prepaid wireless service is
848 not liable for damages to any person resulting from or incurred
849 in connection with providing any lawful assistance to any
850 investigative or law enforcement officer of the United States,
851 any state, or any political subdivision of any state in
852 connection with any lawful investigation or other law
853 enforcement activity by such law enforcement officer.
854 (l)(m) The limitations of liability under this subsection
855 for providers and sellers are in addition to any other
856 limitation of liability provided for under this section.
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857 (m)(n) A local government may not levy the fee or any
858 additional fee on providers or sellers of prepaid wireless
859 service for the provision of 911 E911 service.
860 (n)(o) For purposes of this section, the state and local
861 governments are not consumers.
862 (o)(p) For purposes of this subsection, the term:
863 1. "Consumer" means a person who purchases prepaid
864 wireless service in a retail sale.
865 2. "Prepaid wireless E911 fee" means the fee that is
866 required to be collected by a seller from a consumer as provided
867 in this subsection.
868 3. "Provider" means a person that provides prepaid
869 wireless service pursuant to a license issued by the Federal
870 Communications Commission.
871 4. "Retail transaction" means the purchase by a consumer
872 from a seller of prepaid wireless service that may be applied to
873 a single service identifier for use by the consumer. If a
874 consumer makes a purchase of multiple prepaid wireless services
875 in a single transaction, each individual prepaid wireless
876 service shall be considered a separate retail transaction for
877 purposes of calculating the prepaid wireless E911 fee.
878 5. "Seller" means a person who makes retail sales of
879 prepaid wireless services to a consumer.
880 (10) AUTHORIZED EXPENDITURES OF PUBLIC SAFETY EMERGENCY
881 COMMUNICATIONS SYSTEMS E911 FEE.—
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882 (a) For purposes of this section, emergency communications
883 and 911 E911 service includes the functions relating to the
884 receipt and transfer of requests for emergency assistance, of
885 database management, call taking, and location verification, and
886 call transfer. Department of Health certification and
887 recertification and training costs for 911 public safety
888 telecommunications, including dispatching, are functions of
889 public safety emergency telecommunications 911 services.
890 (b) All costs directly attributable to the establishment
891 or provision of emergency communications equipment E911 service
892 and contracting for E911 services related to a primary or
893 secondary public safety answering point are eligible for
894 expenditure of moneys derived from imposition of the fee
895 authorized by subsections (8) and (9). These costs include the
896 acquisition, implementation, and maintenance of PSAP Public
897 Safety Answering Point (PSAP) equipment and 911 E911 service
898 features, as defined in the providers' published schedules or
899 the acquisition, installation, and maintenance of other E911
900 equipment, including: circuits; call answering equipment; call
901 transfer equipment; ANI or ALI controllers; ANI or ALI displays;
902 station instruments; NG911 E911 telecommunications systems;
903 Emergency Services IP Network ESInet; visual call information
904 and storage devices; recording equipment; telephone devices and
905 other equipment for the hearing impaired used in the E911
906 system; PSAP backup power systems; consoles; automatic call
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907 distributors; , and interfaces, including hardware and software,
908 for computer-aided dispatch (CAD) systems, public safety land
909 mobile radio systems (LMR) and radio consoles that provide two-
910 way radio communication with responders, and in-building
911 coverage; integrated CAD systems for that portion of the systems
912 used for E911 call taking; GIS system and software equipment and
913 information displays; network clocks; cybersecurity, including
914 hardware, software, and services; salary and associated expenses
915 for 911 E911 call takers and emergency dispatchers for that
916 portion of their time spent taking and transferring E911 calls,
917 salary, and associated expenses for a county to employ a full -
918 time equivalent 911 E911 coordinator position and a full-time
919 equivalent mapping or geographical data position, and technical
920 system maintenance, database, and administration personnel for
921 the portion of their time spent administrating the emergency
922 communications E911 system; emergency medical, fire, and law
923 enforcement prearrival instruction software; charts a nd training
924 costs; training costs for PSAP call takers, dispatchers,
925 supervisors, and managers in the proper methods and techniques
926 used in taking and transferring 911 E911 calls; costs to train
927 and educate PSAP employees and the public regarding 911 and
928 radio E911 service or NG911 E911 equipment, including fees
929 collected by the Department of Health for the certification and
930 recertification of 911 public safety telecommunicators as
931 required under s. 401.465; and expenses required to develop and
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932 maintain all information, including ALI and ANI databases, call
933 taker access to and other information source repositories,
934 necessary to properly inform call takers as to location address,
935 type of emergency, smart city technology data, emergency
936 communications broadband network information, and other
937 information directly relevant to the processing of a request for
938 emergency assistance E911 call-taking and transferring function.
939 Moneys derived from the fee may also be used for next -generation
940 E911 network services, next-generation E911 database services,
941 next-generation E911 equipment, and wireless E911 routing
942 systems.
943 (c) The moneys may not be used to pay for any item not
944 listed in this subsection, including, but not limited to, any
945 capital or operational costs related to responders dispatched to
946 the emergency, and costs for emergency responses which occur
947 after the call transfer to the responding public safety entity
948 and the costs for utilities, constructing, leasing, maintaining,
949 or renovating buildings, except for those building modifications
950 necessary to maintain the security and environmental integrity
951 of the PSAP and emergency communications E911 equipment rooms.
952 (11) LIABILITY OF COUNTIES.—A county subscribing to 911
953 service remains liable to the local exchange carrier for any 911
954 service, equipment, operation, or maintenance charge owed by the
955 county to the local exchange carrier. As used in this
956 subsection, the term "local exchange carrier" means a local
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Amendment No. 1
957 exchange telecommunications service provider of 911 service or
958 equipment to any county within its certificated area.
959 (12) INDEMNIFICATION AND LIMITATION OF LIABILITY. —A local
960 government may indemnify local exchange carriers against
961 liability in accordance with the published schedules of the
962 company. Notwithstanding an indemnification agreement, a local
963 exchange carrier, voice communications services provider, or
964 other service provider that provides 911, or E911, or NG911
965 service on a retail or wholesale basis is not liable for damages
966 resulting from or in connection with 911, or E911, or NG911
967 service, or for identification of the telephone number, or
968 address, or name associated with any person accessing 911, or
969 E911, or NG911 service, unless the carrier or provider acted
970 with malicious purpose or in a manner exhibiting wanton and
971 willful disregard of the rights, safety, or property of a person
972 when providing such services. A carrier or provider is not
973 liable for damages to any person resulting from or in connection
974 with the carrier's or provider's provision of any lawful
975 assistance to any investigative or law enforcement officer of
976 the United States, this state, or a political subdivision
977 thereof, or of any other state or political subdivision thereof,
978 in connection with any lawful investigation or othe r law
979 enforcement activity by such law enforcement officer. For
980 purposes of this subsection, the term "911, or E911, or NG911
981 service" means a telecommunications service, voice or nonvoice
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982 communications service, or other wireline or wireless service,
983 including, but not limited to, a service using Internet
984 protocol, which provides, in whole or in part, any of the
985 following functions: providing members of the public with the
986 ability to reach an answering point by using the digits 9-1-1;
987 directing 911 calls to answering points by selective routing;
988 providing for automatic number identification and automatic
989 location-identification features; or providing wireless E911
990 services as defined in the order.
991 (13) FACILITATING EMERGENCY COMMUNICATIONS E911 SERVICE
992 IMPLEMENTATION.—To balance the public need for reliable
993 emergency communications E911 services through reliable wireless
994 systems and the public interest served by governmental zoning
995 and land development regulations and notwithstanding any other
996 law or local ordinance to the contrary, the following standards
997 shall apply to a local government's actions, as a regulatory
998 body, in the regulation of the placement, construction, or
999 modification of a wireless communications facility. This
1000 subsection shall not, however, be construed to waive or alter
1001 the provisions of s. 286.011 or s. 286.0115. For the purposes of
1002 this subsection only, "local government" shall mean any
1003 municipality or county and any agency of a municipality or
1004 county only. The term "local government" does not, however,
1005 include any airport, as defined by s. 330.27(2), even if it is
1006 owned or controlled by or through a municipality, county, or
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1007 agency of a municipality or county. Further, notwithstanding
1008 anything in this section to the contrary, this subsection does
1009 not apply to or control a local government's actions as a
1010 property or structure owner in the use of any property or
1011 structure owned by such entity for the placement, construction,
1012 or modification of wireless communications facilities. In the
1013 use of property or structures owned by the local government,
1014 however, a local government may not use its regulatory authority
1015 so as to avoid compliance with, or in a manner that does not
1016 advance, the provisions of this subsection.
1017 (a) Collocation among wireless providers is encouraged by
1018 the state.
1019 1.a. Collocations on towers, including nonconforming
1020 towers, that meet the requirements in sub-sub-subparagraphs (I),
1021 (II), and (III), are subject to only building permit review,
1022 which may include a review for compliance with this
1023 subparagraph. Such collocations are not subject to any design or
1024 placement requirements of the local government's land
1025 development regulations in effect at the time of the collocation
1026 that are more restrictive than those in effect at the time of
1027 the initial antennae placement approval, to any other portion of
1028 the land development regulations, or to public hearing review.
1029 This sub-subparagraph shall not preclude a public hearing for
1030 any appeal of the decision on the collocation applicatio n.
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1031 (I) The collocation does not increase the height of the
1032 tower to which the antennae are to be attached, measured to the
1033 highest point of any part of the tower or any existing antenna
1034 attached to the tower;
1035 (II) The collocation does not increase the ground space
1036 area, commonly known as the compound, approved in the site plan
1037 for equipment enclosures and ancillary facilities; and
1038 (III) The collocation consists of antennae, equipment
1039 enclosures, and ancillary facilities that are of a design and
1040 configuration consistent with all applicable regulations,
1041 restrictions, or conditions, if any, applied to the initial
1042 antennae placed on the tower and to its accompanying equipment
1043 enclosures and ancillary facilities and, if applicable, applied
1044 to the tower supporting the antennae. Such regulations may
1045 include the design and aesthetic requirements, but not
1046 procedural requirements, other than those authorized by this
1047 section, of the local government's land development regulations
1048 in effect at the time the initial antennae placement was
1049 approved.
1050 b. Except for a historic building, structure, site,
1051 object, or district, or a tower included in sub-subparagraph a.,
1052 collocations on all other existing structures that meet the
1053 requirements in sub-sub-subparagraphs (I)-(IV) shall be subject
1054 to no more than building permit review, and an administrative
1055 review for compliance with this subparagraph. Such collocations
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1056 are not subject to any portion of the local government's land
1057 development regulations not addressed herein, or to public
1058 hearing review. This sub-subparagraph shall not preclude a
1059 public hearing for any appeal of the decision on the collocation
1060 application.
1061 (I) The collocation does not increase the height of the
1062 existing structure to which the antennae are to be attached,
1063 measured to the highest point of any part of the structure or
1064 any existing antenna attached to the structure;
1065 (II) The collocation does not increase the ground space
1066 area, otherwise known as the compound, if any, approved in the
1067 site plan for equipment enclosures and ancillary facilities;
1068 (III) The collocation consists of antennae, equipment
1069 enclosures, and ancillary facilities that are of a design and
1070 configuration consistent with any applicable structural or
1071 aesthetic design requirements and any requirements for location
1072 on the structure, but not prohibitions or restrictions on the
1073 placement of additional collocations on the existing structure
1074 or procedural requirements, other than those authorized by this
1075 section, of the local government's land development regulations
1076 in effect at the time of the collocation application; and
1077 (IV) The collocation consists of antennae, equipment
1078 enclosures, and ancillary facilities that are of a design and
1079 configuration consistent with all applicable restrictions or
1080 conditions, if any, that do not conflict with sub-sub-
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1081 subparagraph (III) and were applied to the initial antennae
1082 placed on the structure and to its accompanying equipment
1083 enclosures and ancillary facilities and, if applicable, applied
1084 to the structure supporting the antennae.
1085 c. Regulations, restrictions, conditions, or permits of
1086 the local government, acting in its regulatory capacity, that
1087 limit the number of collocations or require review processes
1088 inconsistent with this subsection shall not apply to
1089 collocations addressed in this subparagraph.
1090 d. If only a portion of the collocation does not meet the
1091 requirements of this subparagraph, such as an increase in the
1092 height of the proposed antennae over the existing structure
1093 height or a proposal to expand the ground space approved in the
1094 site plan for the equipment enclosure, where all other portions
1095 of the collocation meet the requirements of this subparagraph,
1096 that portion of the collocation only may be reviewed under the
1097 local government's regulations applicable to an initial
1098 placement of that portion of the facility, including, but not
1099 limited to, its land development regulations, and within the
1100 review timeframes of subparagraph (d)2., and the rest of the
1101 collocation shall be reviewed in accordance with this
1102 subparagraph. A collocation proposal under this subparagraph
1103 that increases the ground space area, otherwise known as the
1104 compound, approved in the original site plan for equipment
1105 enclosures and ancillary facilities by no more than a cumulative
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1106 amount of 400 square feet or 50 percent of the original compound
1107 size, whichever is greater, shall, however, require no more than
1108 administrative review for compliance with the local government's
1109 regulations, including, but not limited to, land develo pment
1110 regulations review, and building permit review, with no public
1111 hearing review. This sub-subparagraph shall not preclude a
1112 public hearing for any appeal of the decision on the collocation
1113 application.
1114 2. If a collocation does not meet the requirements of
1115 subparagraph 1., the local government may review the application
1116 under the local government's regulations, including, but not
1117 limited to, land development regulations, applicable to the
1118 placement of initial antennae and their accompanying equipment
1119 enclosure and ancillary facilities.
1120 3. If a collocation meets the requirements of subparagraph
1121 1., the collocation shall not be considered a modification to an
1122 existing structure or an impermissible modification of a
1123 nonconforming structure.
1124 4. The owner of the existing tower on which the proposed
1125 antennae are to be collocated shall remain responsible for
1126 compliance with any applicable condition or requirement of a
1127 permit or agreement, or any applicable condition or requirement
1128 of the land development regulations to which the existing tower
1129 had to comply at the time the tower was permitted, including any
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1130 aesthetic requirements, provided the condition or requirement is
1131 not inconsistent with this paragraph.
1132 5. An existing tower, including a nonconforming tower, may
1133 be structurally modified in order to permit collocation or may
1134 be replaced through no more than administrative review and
1135 building permit review, and is not subject to public hearing
1136 review, if the overall height of the tower is not increased and,
1137 if a replacement, the replacement tower is a monopole tower or,
1138 if the existing tower is a camouflaged tower, the replacement
1139 tower is a like-camouflaged tower. This subparagraph shall not
1140 preclude a public hearing for any appeal of the decision on the
1141 application.
1142 (b)1. A local government's land development and
1143 construction regulations for wireless communications facilities
1144 and the local government's review of an application for the
1145 placement, construction, or modification of a wireless
1146 communications facility shall only address land development or
1147 zoning issues. In such local government regulations or review,
1148 the local government may not require information on or evaluate
1149 a wireless provider's business decisions about its service,
1150 customer demand for its service, or quality of its service to or
1151 from a particular area or site, unless the wireless provider
1152 voluntarily offers this information to the local government. In
1153 such local government regulations or review, a local government
1154 may not require information on or evaluate the wireless
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1155 provider's designed service unless the information or materials
1156 are directly related to an identified land development or zoning
1157 issue or unless the wireless provider voluntarily offers the
1158 information. Information or materials directly related to an
1159 identified land development or zoning issue may include, but are
1160 not limited to, evidence that no existing structure can
1161 reasonably be used for the antennae placement instead of the
1162 construction of a new tower, that residential areas cannot be
1163 served from outside the residential area, as addressed in
1164 subparagraph 3., or that the proposed height of a new tower or
1165 initial antennae placement or a proposed height increase of a
1166 modified tower, replacement tower, or collocation is nec essary
1167 to provide the provider's designed service. Nothing in this
1168 paragraph shall limit the local government from reviewing any
1169 applicable land development or zoning issue addressed in its
1170 adopted regulations that does not conflict with this section,
1171 including, but not limited to, aesthetics, landscaping, land
1172 use-based land use based location priorities, structural design,
1173 and setbacks.
1174 2. Any setback or distance separation required of a tower
1175 may not exceed the minimum distance necessary, as determined by
1176 the local government, to satisfy the structural safety or
1177 aesthetic concerns that are to be protected by the setback or
1178 distance separation.
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Amendment No. 1
1179 3. A local government may exclude the placement of
1180 wireless communications facilities in a residential area or
1181 residential zoning district but only in a manner that does not
1182 constitute an actual or effective prohibition of the provider's
1183 service in that residential area or zoning district. If a
1184 wireless provider demonstrates to the satisfaction of the local
1185 government that the provider cannot reasonably provide its
1186 service to the residential area or zone from outside the
1187 residential area or zone, the municipality or county and
1188 provider shall cooperate to determine an appropriate location
1189 for a wireless communications facility of an appropriate design
1190 within the residential area or zone. The local government may
1191 require that the wireless provider reimburse the reasonable
1192 costs incurred by the local government for this cooperative
1193 determination. An application for such cooperative determination
1194 shall not be considered an application under paragraph (d).
1195 4. A local government may impose a reasonable fee on
1196 applications to place, construct, or modify a wireless
1197 communications facility only if a similar fee is imposed on
1198 applicants seeking other similar types of zoning, land use, or
1199 building permit review. A local government may impose fees for
1200 the review of applications for wireless communications
1201 facilities by consultants or experts who conduct code compliance
1202 review for the local government but any fee is limited to
1203 specifically identified reasonable expenses incurred in the
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1204 review. A local government may impose reasonable surety
1205 requirements to ensure the removal of wireless communications
1206 facilities that are no longer being used.
1207 5. A local government may impose design requirements, such
1208 as requirements for designing towers to support collocation or
1209 aesthetic requirements, except as otherwise limited in this
1210 section, but shall not impose or require information on
1211 compliance with building code type standards for the
1212 construction or modification of wireless communications
1213 facilities beyond those adopted by the local government under
1214 chapter 553 and that apply to all similar types of construction.
1215 (c) Local governments may not require wireless providers
1216 to provide evidence of a wireless communications facility's
1217 compliance with federal regulations, except evidence of
1218 compliance with applicable Federal Aviation Administration
1219 requirements under 14 C.F.R. part 77, as amended, and evidence
1220 of proper Federal Communications Commission licensure, or other
1221 evidence of Federal Communications Commission authorized
1222 spectrum use, but may request the Federal Communications
1223 Commission to provide information as to a wireless provider's
1224 compliance with federal regulations, as authorized by federal
1225 law.
1226 (d)1. A local government shall grant or deny each properly
1227 completed application for a collocation under subparagraph (a)1.
1228 based on the application's compliance with the local
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1229 government's applicable regulations, as provided for in
1230 subparagraph (a)1. and consistent with this subsection, and
1231 within the normal timeframe for a similar building permit review
1232 but in no case later than 45 business days after the date the
1233 application is determined to be properly completed in accordance
1234 with this paragraph.
1235 2. A local government shall grant or deny each properly
1236 completed application for any other wireless communications
1237 facility based on the application's compliance with the local
1238 government's applicable regulations, including but not limited
1239 to land development regulations, consistent with this subsection
1240 and within the normal timeframe for a similar type review but in
1241 no case later than 90 business days after the date the
1242 application is determined to be properly completed in accordance
1243 with this paragraph.
1244 3.a. An application is deemed submitted or resubmitted on
1245 the date the application is received by the local government. If
1246 the local government does not notify the applicant in writing
1247 that the application is not completed in compliance with the
1248 local government's regulations within 20 business days after the
1249 date the application is initially submitted or additional
1250 information resubmitted, the application is deemed, for
1251 administrative purposes only, to be properly completed and
1252 properly submitted. However, the determination shall not be
1253 deemed as an approval of the application. If the application is
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1254 not completed in compliance with the local government's
1255 regulations, the local government shall so notify the applicant
1256 in writing and the notification must indicate with specificity
1257 any deficiencies in the required documents or deficiencies in
1258 the content of the required documents which, if cured, make the
1259 application properly completed. Upon resubmission of information
1260 to cure the stated deficiencies, the local government shall
1261 notify the applicant, in writing, within the normal timeframes
1262 of review, but in no case longer than 20 business days after the
1263 additional information is submitted, of any remaining
1264 deficiencies that must be cured. Deficiencies in document type
1265 or content not specified by the local government do not make the
1266 application incomplete. Notwithstanding this sub-subparagraph,
1267 if a specified deficiency is not properly cured when the
1268 applicant resubmits its application to comply with the notice of
1269 deficiencies, the local government may continue to request the
1270 information until such time as the specified deficiency is
1271 cured. The local government may establish reasonable timefram es
1272 within which the required information to cure the application
1273 deficiency is to be provided or the application will be
1274 considered withdrawn or closed.
1275 b. If the local government fails to grant or deny a
1276 properly completed application for a wireless communications
1277 facility within the timeframes set forth in this paragraph, the
1278 application shall be deemed automatically approved and the
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1279 applicant may proceed with placement of the facilities without
1280 interference or penalty. The timeframes specified in
1281 subparagraph 2. may be extended only to the extent that the
1282 application has not been granted or denied because the local
1283 government's procedures generally applicable to all other
1284 similar types of applications require action by the governing
1285 body and such action has not taken place within the timeframes
1286 specified in subparagraph 2. Under such circumstances, the local
1287 government must act to either grant or deny the application at
1288 its next regularly scheduled meeting or, otherwise, the
1289 application is deemed to be automatically approved.
1290 c. To be effective, a waiver of the timeframes set forth
1291 in this paragraph must be voluntarily agreed to by the applicant
1292 and the local government. A local government may request, but
1293 not require, a waiver of the timeframes by the applicant, except
1294 that, with respect to a specific application, a one -time waiver
1295 may be required in the case of a declared local, state, or
1296 federal emergency that directly affects the administration of
1297 all permitting activities of the local government.
1298 (e) The replacement of or modification to a wireless
1299 communications facility, except a tower, that results in a
1300 wireless communications facility not readily discernibly
1301 different in size, type, and appearance when viewed from ground
1302 level from surrounding properties, and the replacement or
1303 modification of equipment that is not visible from surrounding
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1304 properties, all as reasonably determined by the local
1305 government, are subject to no more than applicable building
1306 permit review.
1307 (f) Any other law to the contrary notwithstanding, the
1308 Department of Management Services shall negotiate, in the name
1309 of the state, leases for wireless communications facilities that
1310 provide access to state government-owned property not acquired
1311 for transportation purposes, and the Department of
1312 Transportation shall negotiate, in the name of the state, leases
1313 for wireless communications facilities that provide access to
1314 property acquired for state rights-of-way. On property acquired
1315 for transportation purposes, leases shall be grante d in
1316 accordance with s. 337.251. On other state government -owned
1317 property, leases shall be granted on a space available, first -
1318 come, first-served basis. Payments required by state government
1319 under a lease must be reasonable and must reflect the market
1320 rate for the use of the state government-owned property. The
1321 Department of Management Services and the Department of
1322 Transportation are authorized to adopt rules for the terms and
1323 conditions and granting of any such leases.
1324 (g) If any person adversely affected by any action, or
1325 failure to act, or regulation, or requirement of a local
1326 government in the review or regulation of the wireless
1327 communication facilities files an appeal or brings an
1328 appropriate action in a court or venue of competent
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Amendment No. 1
1329 jurisdiction, following the exhaustion of all administrative
1330 remedies, the matter shall be considered on an expedited basis.
1331 (14) MISUSE OF 911, OR E911, OR NG911 SYSTEM; PENALTY.—
1332 911, and E911, and NG911 service must be used solely for
1333 emergency communications by the public. Any person who accesses
1334 the number 911 for the purpose of making a false alarm or
1335 complaint or reporting false information that could result in
1336 the emergency response of any public safety agency; any person
1337 who knowingly uses or attempts to use such service for a purpose
1338 other than obtaining public safety assistance; or any person who
1339 knowingly uses or attempts to use such service in an effort to
1340 avoid any charge for service, commits a misdemeanor of the first
1341 degree, punishable as provided in s. 775.082 or s. 775.083.
1342 After being convicted of unauthorized use of such service four
1343 times, a person who continues to engage in such unauthorized use
1344 commits a felony of the third degree, punishable as provided in
1345 s. 775.082, s. 775.083, or s. 775.084. In addition, if the value
1346 of the service or the service charge obtained in a manner
1347 prohibited by this subsection exceeds $100, the person
1348 committing the offense commits a felony of the third degree,
1349 punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
1350 (15) TEXT-TO-911 SERVICE.—Each county shall develop a
1351 countywide implementation plan addressing text-to-911 services
1352 and, by January 1, 2022, enact a system to allow text -to-911
1353 services.
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Amendment No. 1
1354 (16) STATE LAW NOT PREEMPTED.—This section and ss. 365.173
1355 and 365.174 do not alter any state law that otherwise regulates
1356 voice communications services providers.
1357 Section 2. Section 365.173, Florida Statutes, is amended
1358 to read:
1359 365.173 Emergency Communications Number E911 System Trust
1360 Fund.—
1361 (1) REVENUES.—
1362 (a) Revenues derived from the fee levied on subscribers
1363 under s. 365.172(8) must be paid by the board into the State
1364 Treasury on or before the 15th day of each month. Such moneys
1365 must be accounted for in a special fund to be designated as the
1366 Emergency Communications Number E911 System Trust Fund, a fund
1367 created in the Division of Telecommunications, or other office
1368 as designated by the Secretary of Management Services.
1369 (b) Revenues derived from the fee levied on prepaid
1370 wireless service under s. 365.172(9), less the costs of
1371 administering collection of the fee, must be transferred by the
1372 Department of Revenue to the Emergency Communications Number
1373 E911 System Trust Fund on or before the 25th day of each month
1374 following the month of receipt.
1375 (c) For accounting purposes, the Emergency Communications
1376 Number E911 System Trust Fund must be segregated into three
1377 separate categories:
1378 1. The wireless category;
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Amendment No. 1
1379 2. The nonwireless category; and
1380 3. The prepaid wireless category.
1381 (d) All moneys must be invested by the Chief Financial
1382 Officer pursuant to s. 17.61. All moneys in such fund are to be
1383 expended by the office for the purposes provided in this section
1384 and s. 365.172. These funds are not subject to s. 215.20.
1385 (2) DISTRIBUTION AND USE OF FUNDS.—As determined by the
1386 board pursuant to s. 365.172(8)(f) s. 365.172(8)(g), and subject
1387 to any modifications approved by the board pursuant to s.
1388 365.172(6)(a)3. or (8)(g) s. 365.172(6)(a)3. or (8)(h), the
1389 moneys in the fund shall be distributed and used only as
1390 follows:
1391 (a) Ninety-five Seventy-six percent of the moneys in the
1392 wireless category shall be distributed each month to counties,
1393 based on the total number of service identifiers in each county,
1394 to and shall be used exclusively for payment of:
1395 1. authorized expenditures, as specified in s.
1396 365.172(10).
1397 2. Costs to comply with the requirements for E911 service
1398 contained in the order and any future rules related to the
1399 order.
1400 (b) Ninety-six percent of the moneys in the nonwireless
1401 category shall be distributed each month to counties based on
1402 the total number of service identifiers in each county and shall
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1403 be used exclusively for payment of authorized expenditures, as
1404 specified in s. 365.172(10).
1405 (c) Sixty-one percent of the moneys in the prepaid
1406 wireless category shall be distributed each month to counties
1407 based on the total amount of fees reported and paid in each
1408 county and shall be used exclusively for payment of authorize d
1409 expenditures, as specified in s. 365.172(10). The moneys from
1410 prepaid wireless E911 fees identified as nonspecific in
1411 accordance with s. 365.172(9) shall be distributed as determined
1412 by the Emergency Communications E911 Board.
1413 (d) Any county that receives funds under paragraphs (a),
1414 (b), and (c) shall establish a fund to be used exclusively for
1415 the receipt and expenditure of the revenues collected under
1416 paragraphs (a), (b), and (c). All fees placed in the fund and
1417 any interest accrued shall be used solely for costs described in
1418 subparagraphs (a)1. and 2. and may not be reduced, withheld, or
1419 allocated for other purposes. The money collected and interest
1420 earned in this fund shall be appropriated for these purposes by
1421 the county commissioners and incorporated into the annual county
1422 budget. The fund shall be included within the financial audit
1423 performed in accordance with s. 218.39. The financial audit
1424 shall assure that all emergency communications E911 fee
1425 revenues, interest, and emergency communications E911 grant
1426 funding are used for payment of authorized expenditures, as
1427 specified in s. 365.172(10) and as specified in the Emergency
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Amendment No. 1
1428 Communications E911 Board grant and special disbursement
1429 programs. The board may, in accordance with board rules,
1430 withhold future distribution of grant funds or request a return
1431 of all or a portion of funds previously awarded based on
1432 findings from the financial audit. The county is responsible for
1433 all expenditures of revenues distributed from the county
1434 emergency communications E911 fund and shall submit the
1435 financial audit reports to the board for review. A county may
1436 carry forward up to 30 percent of the total funds disbursed to
1437 the county by the board during a county fiscal year for
1438 expenditures for capital outlay, capital improvements, equipment
1439 replacement, or implementation of a hosted system if such
1440 expenditures are made for the purposes specified in
1441 subparagraphs (a)1. and 2.; however, the 30-percent limitation
1442 does not apply to funds disbursed to a county under s.
1443 365.172(6)(a)3., and a county may carry forward any percentage
1444 of the funds, except that any grant provided shall continue to
1445 be subject to any condition imposed by the board. In order to
1446 prevent an excess recovery of costs incurred in providing
1447 emergency communication E911 service, a county that receives
1448 funds greater than the permissible emergency communication E911
1449 costs described in s. 365.172(10), including the 30 -percent
1450 carryforward allowance, must return the excess funds to the E911
1451 board to be allocated under s. 365.172(6)(a).
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1452 (e) Twenty percent of the moneys in the wireless category
1453 shall be distributed to wireless providers in response to sworn
1454 invoices submitted to the board by wireless providers to
1455 reimburse such wireless providers for the actual costs incurred
1456 to provide 911 or E911 service, including the costs of complying
1457 with the order. Such costs include costs and expenses incurred
1458 by wireless providers to design, purchase, lease, program,
1459 install, test, upgrade, operate, and maintain all necessary
1460 data, hardware, and software required to provide E911 service.
1461 Each wireless provider shall submit to the board, by August 1 of
1462 each year, a detailed estimate of the capital and operating
1463 expenses for which it anticipates that it will seek
1464 reimbursement under this paragraph during the ensuing state
1465 fiscal year. In order to be eligible for recovery during any
1466 ensuing state fiscal year, a wireless provider must submit all
1467 sworn invoices for allowable purchases made within the previo us
1468 calendar year no later than March 31 of the fiscal year. By
1469 September 15 of each year, the board shall submit to the
1470 Legislature its legislative budget request for funds to be
1471 allocated to wireless providers under this paragraph during the
1472 ensuing state fiscal year. The budget request shall be based on
1473 the information submitted by the wireless providers and
1474 estimated surcharge revenues. Distributions of moneys in the
1475 fund by the board to wireless providers must be fair and
1476 nondiscriminatory. If the total amount of moneys requested by
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1477 wireless providers pursuant to invoices submitted to the board
1478 and approved for payment exceeds the amount in the fund in any
1479 month, wireless providers that have invoices approved for
1480 payment shall receive a pro rata share of moneys in the fund and
1481 the balance of the payments shall be carried over to the
1482 following month or months until all of the approved payments are
1483 made. The board may adopt rules necessary to address the manner
1484 in which pro rata distributions are made when the total amount
1485 of funds requested by wireless providers pursuant to invoices
1486 submitted to the board exceeds the total amount of moneys on
1487 deposit in the fund.
1488 (e)(f) One percent of the moneys in each category of the
1489 fund shall be retained by the board to be applied to costs and
1490 expenses incurred for the purposes of managing, administering,
1491 and overseeing the receipts and disbursements from the fund and
1492 other activities as defined in s. 365.172(6). Any funds retained
1493 for such purposes in a calendar year which are not applied to
1494 such costs and expenses by March 31 of the following year shall
1495 be redistributed as determined by the board.
1496 (f)(g) Three percent of the moneys in each category of the
1497 fund and an additional 1 percent of the moneys collected in t he
1498 wireless category shall be used to make monthly distributions to
1499 rural counties for the purpose of providing facilities and
1500 network and service enhancements and assistance for the
1501 emergency communications 911 or E911 systems operated by rural
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Bill No. CS/HB 745 (2023)
Amendment No. 1
1502 counties and for the provision of grants by the office to rural
1503 counties for upgrading and replacing emergency communications
1504 E911 systems.
1505 (g)(h) Thirty-five percent of the moneys in the prepaid
1506 wireless category shall be retained by the board to provide
1507 state emergency communications E911 grants to be awarded in
1508 accordance with the following order of priority:
1509 1. For all large, medium, and rural counties to upgrade or
1510 replace emergency communications E911 systems.
1511 2. For all large, medium, and rural counties to develop
1512 and maintain statewide 911 routing, geographic, and management
1513 information systems.
1514 3. For all large, medium, and rural counties to develop
1515 and maintain next-generation 911 services and equipment.
1516 (h)(i) If the wireless category has funds remaining in it
1517 on December 31 after disbursements have been made during the
1518 calendar year immediately prior to December 31, the board may
1519 disburse the excess funds in the wireless category in accordance
1520 with s. 365.172(6)(a)3.b.
1521 (3) The Legislature recognizes that the fee authorized
1522 under s. 365.172 may not necessarily provide the total funding
1523 required for establishing or providing the emergency
1524 communications E911 service. It is the intent of the Legislature
1525 that all revenue from the fee be used as specified in subsection
1526 (2).
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Bill No. CS/HB 745 (2023)
Amendment No. 1
1527 Section 3. Subsection (1) of section 365.177, Florida
1528 Statutes, is amended to read:
1529 365.177 Transfer of E911 calls between systems.—
1530 (1) The office shall develop a plan by December 30, 2023
1531 February 1, 2020, to upgrade all 911 public safety answering
1532 points within the state to allow the transfer of an emergency
1533 call from one local, multijurisdictional, or regional E911
1534 system to another local, multijurisdictional, or regional E911
1535 system in the state no later than December 30, 2033. Such
1536 transfer should include voice, text message, image, video,
1537 caller identification information, location information, and
1538 additional standards-based 911 call information. The plan shall
1539 prioritize the upgrade of PSAPs based on the population serve d
1540 by each PSAP, the capability of a jurisdiction or region to
1541 modernize PSAPs beyond legacy 911 infrastructure, and the
1542 ability of a jurisdiction or region to address interoperability
1543 between PSAPs. The plan must identify and address the projected
1544 costs of providing these transfer capabilities and project the
1545 ability of each county to meet operational costs based on
1546 disbursement of funds under s. 365.173(2)(a), (b), and (c).
1547 Section 4. Subsection (10) of section 212.05965, Florida
1548 Statutes, is amended to read:
1549 212.05965 Taxation of marketplace sales.—
1550 (10) Notwithstanding any other law, the marketplace
1551 provider is also responsible for collecting and remitting any
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Bill No. CS/HB 745 (2023)
Amendment No. 1
1552 prepaid wireless public safety emergency communications systems
1553 E911 fee under s. 365.172, waste tire fee under s. 403.718, and
1554 lead-acid battery fee under s. 403.7185 at the time of sale for
1555 taxable retail sales made through its marketplace.
1556 Section 5. Section 365.171, Florida Statutes, is amended
1557 to read:
1558 365.171 Emergency communications number E911 state plan.—
1559 (1) SHORT TITLE.—This section may be cited as the "Florida
1560 Emergency Communications Number E911 State Plan Act."
1561 (2) LEGISLATIVE INTENT.—It is the intent of the
1562 Legislature that the communications number "911" be the
1563 designated emergency communications number. A public safety
1564 agency may not advertise or otherwise promote the use of any
1565 communications number for emergency response services other than
1566 "911." It is further the intent of the Legislature to implement
1567 and continually update a cohesive statewide emergency
1568 communications number "E911" plan for enhanced 911 services
1569 which will provide citizens with rapid direct access to public
1570 safety agencies by accessing "911" with the objective of
1571 reducing the response time to situations requiring law
1572 enforcement, fire, medical, rescue, and other emergency
1573 services.
1574 (3) DEFINITIONS.—As used in this section, the term:
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Amendment No. 1
1575 (a) "Office" means the Division of Telecommunications
1576 within the Department of Management Services, as designated by
1577 the secretary of the department.
1578 (b) "Local government" means any city, county, or
1579 political subdivision of the state and its agencies.
1580 (c) "Public agency" means the state and any city, county,
1581 city and county, municipal corporation, chartered organiza tion,
1582 public district, or public authority located in whole or in part
1583 within this state which provides, or has authority to provide,
1584 firefighting, law enforcement, ambulance, medical, or other
1585 emergency services.
1586 (d) "Public safety agency" means a functional division of
1587 a public agency which provides firefighting, law enforcement,
1588 medical, or other emergency services.
1589 (4) STATE PLAN.—The office shall develop, maintain, and
1590 implement appropriate modifications for a statewide emergency
1591 communications E911 system plan. The plan shall provide for:
1592 (a) The public agency emergency communications
1593 requirements for each entity of local government in the state.
1594 (b) A system to meet specific local government
1595 requirements. Such system shall include law enforcement,
1596 firefighting, and emergency medical services and may include
1597 other emergency services such as poison control, suicide
1598 prevention, and emergency management services.
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Bill No. CS/HB 745 (2023)
Amendment No. 1
1599 (c) Identification of the mutual aid agreements necessary
1600 to obtain an effective emergency communications systems E911
1601 system.
1602 (d) A funding provision that identifies the cost necessary
1603 to implement the emergency communications E911 system.
1604
1605 The office shall be responsible for the implementation and
1606 coordination of such plan. The office shall adopt any necessary
1607 rules and schedules related to public agencies for implementing
1608 and coordinating the plan, pursuant to chapter 120.
1609 (5) SYSTEM DIRECTOR.—The secretary of the department or
1610 his or her designee is designated as the director of the
1611 statewide emergency communications number E911 system and, for
1612 the purpose of carrying out the provisions of this section, is
1613 authorized to coordinate the activities of the system with
1614 state, county, local, and private agencies. The director in
1615 implementing the system shall consult, cooperate, and coordinate
1616 with local law enforcement agencies.
1617 (6) REGIONAL SYSTEMS.—This section does not prohibit or
1618 discourage the formation of multijurisdictional or regional
1619 systems; and any system established pursuant to this section may
1620 include the jurisdiction, or any portion thereof, of more than
1621 one public agency. It is the intent of the Legislature that
1622 emergency communications services E911 service be available
1623 throughout the state. Expenditure by counties of the E911 fee
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Bill No. CS/HB 745 (2023)
Amendment No. 1
1624 authorized and imposed under s. 365.172 should support this
1625 intent to the greatest extent feasible within the context of
1626 local service needs and fiscal capability. This section does not
1627 prohibit two or more counties from establishing a c ombined
1628 emergency E911 communications service by an interlocal agreement
1629 and using the fees authorized and imposed by s. 365.172 for such
1630 combined E911 service.
1631 (7) TELECOMMUNICATIONS INDUSTRY COORDINATION.—The office
1632 shall coordinate with the Florida Public Service Commission
1633 which shall encourage the Florida telecommunications industry to
1634 activate facility modification plans for timely emergency
1635 communications services E911 implementation.
1636 (8) COIN TELEPHONES.—The Florida Public Service Commission
1637 shall establish rules to be followed by the telecommunications
1638 companies in this state designed toward encouraging the
1639 provision of coin-free dialing of "911" calls wherever
1640 economically practicable and in the public interest.
1641 (9) SYSTEM APPROVAL.—No emergency communications number
1642 E911 system shall be established and no present system shall be
1643 expanded without prior approval of the office.
1644 (10) COMPLIANCE.—All public agencies shall assist the
1645 office in their efforts to carry out the intent of this section ,
1646 and such agencies shall comply with the developed plan.
1647 (11) FEDERAL ASSISTANCE.—The secretary of the department
1648 or his or her designee may apply for and accept federal funding
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Amendment No. 1
1649 assistance in the development and implementation of a statewide
1650 emergency communications number E911 system.
1651 (12) CONFIDENTIALITY OF RECORDS.—
1652 (a) Any record, recording, or information, or portions
1653 thereof, obtained by a public agency or a public safety agency
1654 for the purpose of providing services in an emergency and which
1655 reveals the name, address, telephone number, or personal
1656 information about, or information which may identify any person
1657 requesting emergency service or reporting an emergency by
1658 accessing an emergency communications E911 system is
1659 confidential and exempt from the provisions of s. 119.07(1) and
1660 s. 24(a), Art. I of the State Constitution, except that such
1661 record or information may be disclosed to a public safety
1662 agency. The exemption applies only to the name, address,
1663 telephone number or personal information about, or information
1664 which may identify any person requesting emergency services or
1665 reporting an emergency while such information is in the custody
1666 of the public agency or public safety agency providing emergency
1667 services. A telecommunications company or commercial mobile
1668 radio service provider shall not be liable for damages to any
1669 person resulting from or in connection with such telephone
1670 company's or commercial mobile radio service provider's
1671 provision of any lawful assistance to any investigative or law
1672 enforcement officer of the State of Florida or political
1673 subdivisions thereof, of the United States, or of any other
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Amendment No. 1
1674 state or political subdivision thereof, in connection with any
1675 lawful investigation or other law enforcement activity by such
1676 law enforcement officer unless the telecommunications company or
1677 commercial mobile radio service provider acted in a wanton and
1678 willful manner.
1679 (b) Notwithstanding paragraph (a), a 911 public safety
1680 telecommunicator, as defined in s. 401.465, may contact any
1681 private person or entity that owns an automated external
1682 defibrillator who has notified the local emergency medical
1683 services medical director or public safety answering point of
1684 such ownership if a confirmed coronary emergency call is taking
1685 place and the location of the coronary emergency is within a
1686 reasonable distance from the location of the defibrillator, and
1687 may provide the location of the coronary emergency to that
1688 person or entity.
1689 Section 6. Paragraph (b) of subsection (2) of section
1690 365.174, Florida Statutes, is amended to read:
1691 365.174 Proprietary confidential business information. —
1692 (2)
1693 (b) The Department of Revenue may provide information
1694 relative to s. 365.172(9) to the Secretary of Management
1695 Services, or his or her authorized agent, or to the Emergency
1696 Communications E911 Board established in s. 365.172(5) for use
1697 in the conduct of the official business of the Department of
1698 Management Services or the Emergency Communications E911 Board.
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Bill No. CS/HB 745 (2023)
Amendment No. 1
1699
1700
1701 -----------------------------------------------------
1702 T I T L E A M E N D M E N T
1703 Remove everything before the enacting clause and insert:
1704 An act relating to emergency communications; amending s.
1705 365.172, F.S.; revising short title; revising legislative
1706 intent; revising and providing definitions; renaming the E911
1707 Board as the Emergency Communications Board; providing the
1708 purpose of the board; revising the composition of the board;
1709 establishing board responsibilities; requiring the board to
1710 administer fees; authorizing the board to create subcomm ittees;
1711 authorizing the board to establish schedules for implementing
1712 certain wireless NG911 systems and improvements; establishing
1713 notice and publication requirements before distribution of grant
1714 funds; providing for priority of county applications for such
1715 funds; requiring board oversight of such funds; eliminating
1716 certain authority of the board; providing for the board's
1717 authority to implement changes to the allocation percentages or
1718 to adjust the fee; revising the frequency of board meetings;
1719 specifying that the Division of Telecommunications within the
1720 Department of Management Services must disburse funds to
1721 counties and provide a monthly report of such disbursements;
1722 revising the composition of a committee that reviews requests
1723 for proposals from the board regarding independent accounting
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Amendment No. 1
1724 firm selection; revising provisions relating to the public
1725 safety emergency communications systems fee; requiring uniform
1726 application and imposition of the fee; revising the factors that
1727 the board considers when setting percentages or contemplating
1728 adjustments to the fee; updating provisions relating to the
1729 prepaid wireless public safety emergency communications systems
1730 fee; revising emergency communications and 911 service
1731 functions; revising the types of emergency communications
1732 equipment and services that are eligible for expenditure of
1733 moneys derived from the fee; amending s. 365.173, F.S.; renaming
1734 the Communications Number E911 System Fund as the Emergency
1735 Communications Trust Fund; revising the percent distribution of
1736 the fund to be used exclusively for payment of certain
1737 authorized expenditures; removing the percent distribution to
1738 wireless providers; authorizing the board, pursuant to rule, to
1739 withhold certain distributions of grant funds or request a
1740 return of all or a portion of such funds based on a financial
1741 audit; adding a specified percent distribution to rural
1742 counties; amending s. 365.177, F.S.; extending the date by which
1743 the Division of Telecommunications within the Department of
1744 Management Services must develop a plan to upgrade 911 public
1745 safety answering points; specifying components of the required
1746 plan; amending ss. 212.05965, 365.171, and 365.174, F.S.;
1747 conforming provisions to changes made by the act; providing an
1748 effective date.
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Amendment No. 1
1749
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CS/HB 761
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 761 Telephone Solicitation
SPONSOR(S): Civil Justice Subcommittee, Fabricio
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform & Economic Development 12 Y, 0 N Thompson Anstead
Subcommittee
2) Civil Justice Subcommittee 12 Y, 3 N, As CS Mathews Jones
3) Commerce Committee Thompson Hamon
SUMMARY ANALYSIS
Chapter 501, part IV, of the Florida Telemarketing Act (FTA), regulates telemarketers and requires non-exempt
businesses engaged in telemarketing and their salespeople to be licensed by the Florida Department of
Agriculture and Consumer Services (DACS) before operating in Florida. Florida law also prohibits telephonic
sales calls that use an automated system for the selection or dialing of telephone numbers or the playing of
recorded messages (robocall) without the prior express written consent of the called party, with some
exceptions. Unsolicited telephonic sales calls and text messages from telemarketers are prohibited. Residents
who do not wish to receive such calls may have their residential, mobile, or paging device telephone number
included on Florida’s Do Not Call List.
The bill amends s. 501.059, F.S., to:
Revise the prohibition on telephonic sales calls that use an automated system to specifically include
unsolicited calls using certain automatic telephone dialing systems.
Clarify what constitutes consent and clear and conspicuous disclosure.
Clarify that a “signature” includes an affirmative act that demonstrates express consent, such as the
checking of a box indicating consent.
Provide a safe harbor period of thirty days from the date a consumer withdraws consent to receive
communications or notifies the telephone solicitor that he or she does not want to receive
communications.
The bill does not appear to have a fiscal impact on state or local governments.
The bill provides an effective date of upon becoming a law.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Florida Telemarketing Act
Chapter 501, part IV, the Florida Telemarketing Act (FTA), requires non-exempt businesses engaged in
telemarketing and their salespeople to be licensed by the Florida Department of Agriculture and
Consumer Services (DACS) before operating in Florida. Certain exempt entities must have a valid
affidavit of exemption on file prior to operating in Florida. There are approximately 28 exemptions,
including: soliciting for religious, charitable, political or educational purposes; research companies;
newspapers; book and video clubs; cable television; and persons or companies with whom the
consumer has a prior business relationship.1
The FTA generally requires businesses that solicit the sale of consumer goods or services to:
Be licensed;2
Post a form of security;3
License all of their salespeople;4 and
Provide DACS with a list of all telephone numbers used to make sales calls. 5
An application for licensure as a telemarketer must include several pieces of information, including the
applicant’s identifying information, prior experience in the field, criminal and administrative history
(especially relating to fraud, theft, or unfair and deceptive trade practices), phone numbers from which
the telemarketer will make sales calls, and any parent or affiliate entities under which it will transact
business, if applicable.6
Additionally, an applicant for licensure as a telemarketer must submit:
A script that will be used by its salespersons during calls, or other related literature;
The identity, address, date of birth, and alias of each of the applicant’s principal officers,
directors, trustees, shareholders, owners, partners, office managers, and salespersons who are
employed by or affiliated with the applicant; and
A $1,500 licensing fee.7
In Florida, it is unlawful for telemarketers to:8
Make calls before 8 a.m. or after 8 p.m. local time at the called person’s time zone.
Fail to provide the call recipient with their name and telephone number.
Accept novelty payments.9
Employ or be affiliated with an unlicensed salesperson.
Be employed by or affiliated with an unlicensed commercial telephone seller.
Operate without a license.
1 S. 501.604, F.S.
2 S. 501.605, F.S.
3 S. 501.611, F.S., requires a $50,000 bond, irrevocable letter of credit issued for the applicant, or a certificate of deposit in favor of
the Department for payment on findings of fraud, misrepresentation, breach of contract, or other v iolation by the applicant.
4 S. 501.607, F.S.
5 S. 501.605, F.S.
6 S. 501.605(2), F.S.
7 S. 501.605(5)(b), F.S.
8 S. 501.616, F.S.
9 S. 501.603(8), F.S., defines a “novelty payment” as a payment method that does not have systematic monitoring and includes
remotely created checks, remotely created payment orders, cash -to-cash money transfers (such as Western Union) and cash reload
mechanisms (such as MoneyPak or ReloadIt). Novelty payment methods are not systematically monitored, have little to no consumer
protection in the case of fraud or theft, and are used frequently in scams and other fraudulent activity.
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Florida Telemarketing Act - Violations
Violations of the FTA are punishable by a civil fine of up to $10,000 per violation, 10 the imposition of
criminal penalties, including conviction of a felony offense.11 DACS and the office of the state attorney
have investigative authority, including the power to subpoena witnesses if a violation occurs. 12
Reasonable attorney fees and costs may be awarded to the prevailing party in a civil action as part of a
judgment or administrative order.13
Do Not Call
Section 501.059, F.S., governs telephone solicitations. The law includes the Florida Do Not Call Act,
also known as the "Do Not Call” list (DNC list), which prohibits unsolicited telephonic sales calls and
text messages from telemarketers.14 Residents who do not wish to receive unsolicited telephonic sales
calls may have their residential, mobile, or paging device telephone number included on the DNC list.
DACS maintains the DNC list, it is free to register, and a registered number remains on the DNC list
indefinitely.15
An “unsolicited telephonic sales call” does not include calls made:
In response to an express request of the person called;
Primarily in connection with an existing debt or contract, if payment or performance of such debt
or contract has not been completed at the time of such call;
To a person with whom the telephone solicitor has a prior or existing business relationship; or
By a newspaper publisher or his or her agent or employee in connection with his or her
business.16
Telephone solicitors 17 are prohibited from making telephonic sales calls 18 to consumers who register for
the DNC list. A “telephonic sales call” means a telephone call, text message, or voicemail transmission
to a consumer for the purpose of soliciting a sale of consumer goods or services, soliciting an extension
of credit for consumer goods or services, or obtaining information that will or may be used for the direct
solicitation of a sale of consumer goods or services or an extension of credit for such purposes. 19
In addition to those consumers who are registered for the DNC list, a telephone solicitor may not call or
text a consumer who previously communicated to the telephone solicitor that he or she does not wish
to be contacted. Businesses and non-profit organizations are required to maintain a list of consumers
who have made a do-not-call registration request. It is a violation of the Florida Do Not Call Act to call a
consumer who has requested placement on the company's do-not-call list.20
When a telephone number is made available through a caller ID service during a telephonic sales call,
the solicitor must ensure that the number is capable of receiving phone calls, and that the dialing of the
10 S. 501.619, F.S.
11 S. 501.623, F.S.
12 S. 501.617, F.S.
13 S. 501.621, F.S.
14 See s. 501.059, F.S.
15 Dept. of Ag. and Consumer Services, Florida Do Not Call, https://www.fdacs.gov/Consumer-Resources/Florida-Do-Not-Call (last
visited Mar. 21, 2023).
16 S. 501.059(1)(k), F.S.
17 S. 501.059(1)(i), F.S., defines “telephone solicitor” as “a natural person, firm, organization, partnership, association, or corporation,
or a subsidiary or affiliate thereof, doing business in this state, who makes or causes to be made a telephonic sales call, including, but
not limited to, calls made by use of automated dialing or recorded message devices.”
18 S. 501.059(1)(j), F.S., defines “telephonic sales call” as a telephone call, text message, or voicemail transmission to a con sumer for
the purpose of soliciting a sale of any consumer goods or services, soliciting an extension of credit for consumer goods or services, or
obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services or an exte nsion of
credit for such purposes.
19 S. 501.059(1)(j), F.S.
20 S. 501.059(5), F.S.
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number will connect the call recipient with the telephone solicitor or the seller on behalf of which the
phone call was placed.21
Anyone who receives an unsolicited sales call can report the call to DACS using the online Do Not Call
Complaint Form.22
Do Not Call - Consent
The law governing telephone solicitations also prohibits automated telephonic sales calls without the
prior express written consent of the called party. Specifically, the law provides that:
A person may not make or knowingly allow a telephonic sales call to be made if
such call involves an automated system for the selection or dialing of telephone
numbers or the playing of a recorded message when a connection is completed
to a number called without the prior express written consent of the called party.23
"Prior express written consent" is defined as a written agreement that:
Bears the signature of the called party;
Clearly authorizes the person making or allowing the placement of a telephonic sales call by
telephone call, text message, or voicemail transmission to deliver or cause to be delivered to the
called party a telephonic sales call using an automated system for the selection or dialing of
telephone numbers, the playing of a recorded message when a connection is completed to a
number called, or the transmission of a prerecorded voicemail; and
Includes the telephone number to which the signatory authorizes a telephonic sales call to be
delivered.24
Prior express written consent must include a clear and conspicuous disclosure inform ing the called
party that:
By executing the agreement, the called party authorizes the person making or allowing the
placement of a telephonic sales call to deliver or cause to be delivered a telephonic sales call to
the called party using an automated system for the selection or dialing of telephone numbers or
the playing of a recorded message when a connection is completed to a number called; and
He or she is not required to directly or indirectly sign the written agreement or to agree to enter
into such an agreement as a condition of purchasing any property, goods, or services. 25
There is a rebuttable presumption that a telephonic sales call made to any Florida area code is a call
made to a Florida resident or to a person in Florida at the time of the call.26
Do Not Call - Violations
A telephone solicitor who violates the DNC provisions is subject to an injunction and a civil penalty27
with a maximum fine of $10,000 per violation, or an administrative fine28 of up to $1,000 per violation.
Additionally, a telephone solicitor may be held responsible for the consumer’s attorney fees and
costs.29
A party who was called in violation of the Do Not Call Act may bring an action for an injunction and
actual damages or $500, whichever is greater.30 Courts that find that a defendant willfully or knowingly
21 S. 501.059(8)(b), F.S.
22 DACS, Florida Do Not Call, https://www.fdacs.gov/Consumer-Resources/Florida-Do-Not-Call (last visited Mar. 21, 2023).
23 S. 501.059(8)(a), F.S.
24 S. 501.059(1)(g), F.S.
25 S. 501.059(1)(g)4., F.S.
26 S. 501.059(8)(d), F.S.
27 S. 501.059(9)(a), F.S.
28 S. 501.059(9)(b), F.S.
29 S. 501.059(11), F.S.
30 S. 501.059(10)(a), F.S.
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violated these provisions are authorized to increase the amount of the award to not more than three
times the amount of damages.31
Federal Telephone Consumer Protection Act (TCPA) History
In an effort to address a growing number of telephone marketing calls, Congress enacted the
Telephone Consumer Protection Act (TCPA) in 1991. The TCPA restricts the making of telemarketing
calls and the use of automatic telephone dialing systems and artificial or prerecorded voice m essages.
The rules apply to common carriers as well as to other marketers. In 1992, the Commission adopted
rules to implement the TCPA, including the requirement that entities making telephone solicitations
institute procedures for maintaining company-specific do-not-call lists.32
In July 2015, the Federal Communications Commission (FCC) established rules indicating that
telephone carriers can block unwanted calls at the request of consumers. 33 Currently there are a
number of call-blocking applications that provide some relief from unwanted calls and spam calls.34
On November 16, 2017, the FCC adopted new rules to allow voice service providers to proactively
block certain types of robocalls that are likely to be fraudulent because they come from certain types of
phone numbers, including those that do not or cannot make outgoing calls. 35 For example, perpetrators
have used IRS phone numbers that do not dial out to impersonate the tax agency, informing the people
who answer that they are calling to collect money owed to the U.S. government. Such calls appear
legitimate to the person who receives them and may often result in fraud or identity theft. Service
providers can now block such calls, as well as calls from invalid or illegitimate numbers. 36
The FCC requires telemarketers to transmit caller identification information, including the number and
name of the caller. The telephone number provided must permit any individual to make a do-not-call
request during regular business hours. Moreover, any person or entity that engages in telemarketing is
prohibited from blocking the transmission of caller identification information. However, tax-exempt
nonprofit organizations are exempt from compliance with these rules. 37
With regard to telephone carriers, the FCC allows carriers to offer their customers external call-blocking
applications on their landlines and allows carriers to directly block certain illegal robocalls. In December
2019, Congress enacted the “TRACED Act” to aid enforcement efforts between law enforcement
agencies and the private sector on traceback issues, and required the FCC to issue rules “for the
registration of a single consortium that conducts private-led efforts to trace back the origin of suspected
unlawful robocalls.”38 In July of 2020, the FCC designated the US Telecom-led Industry Traceback
Group (ITG) as the Official Consortium for coordinating industry-led efforts to trace back the origin of
suspected unlawful robocalls.39
According to the ITG’s first annual report, over 100 companies participated in over 1,000 ITG traceback
investigations in 2019, identifying more than 10 million illegal robocalls and resulting in more than 20
subpoenas and/or civil investigative demands from federal and state enforcement agencies.40
31 S. 501.059(10)(b ), F.S.
32 Federal Communications Commission, FCC Actions on Robocalls, Telemarketing, https://www.fcc.gov/general/telemarketing-and-
robocalls (last visited Mar. 21, 2023).
33 Declaratory Ruling and Order, In the Matter of Rules and Regulations Implementing the Telecommunications Consumer Protection
Act of 1991, 30 FCC Rcd. 7961 (July 10, 2015).
34 CTIA, The Wireless Association, How to Stop Robocalls, https://www.ctia.org/cons umer-tips/robocalls (last visited Mar. 21, 2023).
35 32 FCC Rcd 9706 (11).
36 Federal Communications Commission, Stop Unwanted Calls and Texts, https://www.fcc.gov/consumers/guides/stop-unwanted-
calls-and-texts (last visited Mar. 21, 2023).
37 47 C.F.R. s. 64.1601.
38 Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act, Pub. L. No. 116 -105, 133 Stat. 3274 (2019).
39
USTelecom The Broadband Association, FCC Names USTelecom’s Industry Traceback Group as Official Robocall Traceback
Consortium, https://www.ustelecom.org/fcc-names-ustelecoms-industry-traceback-group-as-official-robocall-traceback-consortium/
(last visited Mar. 21, 2023).
40 InsideArm, The Latest Developments in the World of Call Delivery, https://www.insidearm.com/news/00047073-latest-
developments-world-call-delivery/ (last visited Mar. 21, 2022).
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The ITG reported in a letter to the FCC on November 13, 2020, that about 100 providers had failed to
cooperate with the ITG, including approximately 30 based in the United States. 41 The ITG encouraged
the FCC to bring aggressive enforcement against robocallers and voice service providers that routinely
refuse to participate in the traceback process.42
In its Fourth Report and Order on Advanced Methods to Target and Eliminate Unlawful Robocalls
released on December 30, 2020, the FCC required “all voice service providers to respond to traceback
requests from the FCC, civil and criminal law enforcement and the Consortium.” 43
The TRACED Act requires the FCC to issue an annual public notice seeking applicants to serve as the
registered consortium.44 On August 22, 2022, the FCC selected the Industry Traceback Group (ITG) to
continue to serve as the registered consortium.45
On September 12, 2022, the FCC announced the signing of an updated Memorandum of
Understanding (MOU) with the Body of European Regulators for Electronic Communications (BEREC)
that expands their current partnership, with a new focus on combatting unwanted robocalls and the
promotion of 5G, 6G and beyond. One of the major topics of mutual interest includes robocall and other
automated calls’ mitigation and prevention.46
National Do Not Call Registry
Although individual states addressed consumers’ requests to stop unwanted telemarketing calls before
the federal government did,47 the federal government soon followed with a National Do Not Call
Registry in 2003.48 In July 2003, the federal government issued a report and order establishing the
National Do Not Call registry. The national registry covers all telemarketers (with the exception of
certain nonprofit organizations), and applies to both interstate and intrastate calls. The registry is
administered by the FTC. To reduce the number of hang-up and dead air calls consumers experience,
the Commission’s telemarketing rules also contain restrictions on the use of autodialers and
requirements for transmitting caller ID information.
As the National Do Not Call Registry has gained popularity, some states have decided to forgo the
expense of maintaining their own DNC lists. Currently, only 12 states maintain their own Do Not Call
lists: Colorado, Florida, Indiana, Louisiana, Massachusetts, Mississippi, Missouri, Oklahoma,
Pennsylvania, Tennessee, Texas and Wyoming.49
Constitutionality of Do Not Call Registries
Do Not Call registries have been subject to numerous state and federal lawsuits challenging their
constitutionality. Such lawsuits have been unsuccessful. The courts have found the Do Not Call
Registry is a reasonable restriction on commercial speech and that the FTC is authorized to promulgate
rules for the registry. The Tenth Circuit Court of Appeals stated that “the do-not-call registry prohibits
41 USTelecom, Enforcement Bureau Requests Information on the Status of Private -Led
Traceback Efforts of Suspected Unlawful Robocalls, EB Docket No. 20-195, Nov. 13, 2020,
https://docs.fcc.gov/public/attachments/DOC-368957A2.pdf (last visited Mar. 21, 2023).
42 InsideArm, The Latest Developments in the World of Call Delivery, https://www.insidearm.com/news/00047073-latest-
developments-world-call-delivery/ (last visited Mar. 21, 2022).
43 Federal Communications Commission, Report and Order (Aug. 22, 2022) https://tcpaworld.com/wp-
content/uploads/2022/08/RENEWAL-OF-UST-TRA CEBA CK-GROUP.pdf (last visited Mar. 21, 2023).
44 TRACED Act, s. 13(d)(2).
45 Federal Communications Commission, Report and Order DA 21-1047 (Aug. 25, 2021) https://www.fcc.gov/document/fcc-retains-
industry-traceback-group-robocall-consortium (last visited Mar. 21, 2022).
46 Federal Communications Commission, Press Release, FCC RENEWS AND EXPANDS PARTNERSHIP WITH EUROPEAN
COUNTERPARTS, Sep. 12, 2022).
47 At least 28 states, starting with Florida in 1987, have implemented Do Not Call registries.
48 Federal Trade Commission, National Do Not Call Registry, https://www.donotcall.gov/ (last visited Mar. 21, 2023).
49 Contact Compliance Center Corporation, State Do Not Call Lists, https://www.dnc.com/faq/state-do-not-call-lists?page=1 (last
visited Mar. 21, 2022).
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only telemarketing calls aimed at consumers who have affirmatively indicated that they do not want to
receive such calls and for whom such calls would constitute an invasion of privacy.” Thus, the
government has a role in restricting the ability of a telemarketer to reach a household via telephone,
and because the government has left the ultimate decision of whether or not to be placed on the
registry up to the individual, the government has not restricted the First Amendment rights of the
solicitor.50
Claims of preemption have also been unsuccessful. The TCPA’s non-preemption clause,51 often
referred to as the savings clause, has been relied upon by courts to uphold states’ Do Not Call
Registries. The clause states that “[n]othing in this section or in the regulations prescribed under this
section shall preempt any State law that imposes more restrictive intrastate requirements or regulation.”
The clause indicates specific types of actions that a state may prohibit or place more restrictive
regulations on, such as sending unsolicited advertisements via fax, using of automatic dialing systems
and prerecorded messages, and making telephone solicitations. 52
The TPCA is silent on a state’s ability to place stricter regulations than the TCPA requires for interstate
calls.53 However, at least one federal court of appeals has held that state regulations and prohibitions of
telemarketing that cross state boundaries are valid. 54
Caller ID and “Spoofing”
“Spoofing” is the practice of altering or manipulating the caller ID information that is received in
conjunction with an incoming telephone call. In the past, caller ID services were not common and
spoofing required special equipment or a relatively high degree of technical sophistication. However,
advances in technology, such as the proliferation of cellular phones, cell phone applications, and the
widespread availability of Voice over Internet Protocol (VoIP) allows anyone to inexpensively spoof his
or her caller ID using the services of a third-party spoofing provider.55 For example, one such spoofing
provider allows a consumer to download an app on his or her smartphone, purchase credits towards
call time, and simply input the number that he or she wants displayed on the receiving end in order to
place an untraceable, spoofed call.56
In response to the growing practice of spoofing, Congress amended the TCPA to add the Truth in
Caller ID Act of 2009. Under the Act and FCC rules, a person or entity is prohibited from transmitting
false or misleading caller ID information “with the intent to defraud, cause harm, or wrongly obtain
anything of value,” with a penalty of up to $10,000 for each violation.57 However, spoofing is not illegal
when no harm is intended or caused, or if the caller has legitimate reasons to hide his or her
information. Examples may include law enforcement agencies working on a case, a victim of domestic
abuse, or a doctor who wishes to discuss private medical matters with a patient. 58
In 2008, Florida passed its own anti-spoofing legislation, The Florida Caller ID Anti-Spoofing Act
(2008).59 The Act prohibits any person from:
Making a call with knowledge that false information was entered into a telephone caller ID
system with the intent to deceive, defraud, or mislead the call’s recipient; and
50 Mainstream Marketing Services Inc v. Federal Trade Commission, 358 F.3d 1228 (10th Cir. 2004).
51 47 U.S.C. s. 227(f)(1).
52 National Association of Attorneys General, Do Not Call: The History of Do Not Call and How Telemarketing Has Evolved ,
NAGTRI Journal, Vol. 1 No. 4.
53 47 U.S.C. s. 227 (f)(1).
54 See Patriotic Veterans, Inc. v. Indiana, 736 F.3d 1041 at 1044-45 (7th Cir. 2013) and Patriotic Veterans, Inc. v. State of Indiana,
No. 16-2059 (7th Cir. 2017)( “Preventing automated messages to persons who don’t want their peace and quie t disturbed is a valid
time, place, and manner restriction.”).
55 See FCC 11-100, Rules and Regulations Implementing the Truth in Caller ID Act of 2009 , WC Docket No. 11-39, (June 22, 2011),
at 9116, https://apps.fcc.gov/edocs_public/attachmatch/FCC-11-100A1_Rcd.pdf (last visited Mar. 21, 2023).
56 Business Insider, It’s Surprisingly Easy for a Hacker to Call Anyone From Your Personal Phone Number (March 1, 2016),
http://www.businessinsider.com/phone-number-spoofing-2016-2 (last visited Mar. 21, 2023).
57 47 U.S.C. s. 227(e).
58 FCC, Caller ID Spoofing, https://www.fcc.gov/consumers/guides/spoofing-and-caller-id (last visited Mar. 21, 2023).
59 S. 817.487, F.S. (2008).
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Entering false information into a telephone caller ID system “with the intent to deceive,
defraud, or mislead” the call’s recipient.
However, a U.S. District Court in Miami found that Florida’s Caller ID Anti-Spoofing Act (2008) violated
the Commerce Clause of the United State Constitution because it had the effect of controlling spoofing
practices that took place entirely outside the state.60 Similarly, in 2011, a federal court in Mississippi
struck down Mississippi’s anti-spoofing law, which was substantially similar to Florida’s.61
Spam Robocalls
US consumers received over 50.3 billion robocalls in 2022, only slightly less than the 50.5 billion total
robocalls received in 2021 despite widespread enforcement efforts by government regulators and state
officials.62
Scammers often use caller ID spoofing to mask their true location and make it appear the call is from a
legitimate or local number to raise the odds of getting an answer. What follows is a robotic voice on the
other end claiming to represent a utility, a name-brand company, or a government agency (such as the
Social Security Administration or the Internal Revenue Service). It might offer a free cruise, inexpensive
health insurance, or a low-interest loan. Answering or engaging with the call may lead to a live
scammer, who realizes he or she has found a “live” number, and thus may call repeatedly. 63
Many robocalls are legal. The FCC allows such robocalls for informational or noncommercial purposes,
such as polling, political campaigning and outreach by nonprofit groups.
Advances in technology have magnified fundamental flaws in the American phone system, enabling
unrelenting robocalls from untraceable origins. As a result, it is incredibly profitable to use spam calls to
drive business regardless of whether the caller is perpetuating a scam or is a legitimate business using
telemarketing to increase sales.64
Consent and Revocation
The TCPA prohibits a telemarketer from using an automatic telephone dialing system (ATDS) to place
a call or send a text message to a cell phone without the recipient’s “prior express consent.”65 The
type of consent depends on the nature of the call or text. Consent generally can be revoked by any
reasonable method. However, some courts recently have considered whether revocation may be
restricted in circumstances where the consent is included on a bilateral agreement. 66
There are two types of prior consent provided for under the TCPA:
Prior express consent is required to place autodialed, non-solicitation calls or texts to a cell
phone.
Prior express written consent is a heightened form of consent, must be evidenced by a written
agreement signed by the call recipient, and is required to place autodialed telemarketing or
60 TelTech Systems, Inc. v. McCollum, No. 08-61664-CIV-MARTINEZ-BROWN (S.D. Fla. Filed Oct. 16, 2008).
61 TelTech Systems, Inc. v. Barbour, 866 F. Supp. 2d 571 (S.D. Miss. 2011), aff’d sub nom Teltech Systems, Inc. v. Bryant, 702 F.2d
232 (5th Cir. 2012).
62 PR Newswire, Robocalls Top 50.3 Billion in 2022, Matching 2021 Call Volumes Despite Enforcement Efforts,
https://www.prnewswire.com/news -releases/robocalls-top-50-3-billion-in-2022--matching-2021-call-volu mes-despite-enforcement-
efforts-301714297.html#:~:text=IRVINE%2C%20Calif.%2C%20Jan.,government%20regulators%20and%20state%20officials (last
visited Mar. 21, 2023).
63 AARP, Robocalls, https://www.aarp.org/money/scams -fraud/info-2019/robocalls.html?CMP=KNC-DSO-Adobe-Google-FRD-
Ongoing-Robocalls-NonBrand-Exact-
Robocalls&gclid=EAIaIQobChMIlv mq_4Sr7wIVFYv ICh 2RAwjqEAA YA iAAEgJD4v D_BwE&gclsrc=aw.ds (last visited Mar. 21,
2022).
64 AARP, supra note 63.
65 47 U.S.C. s. 227(b)(1)(A)(iii).
66 The National Law Review, Consent and Revocation Under the TCPA, https://www.natlawreview.com/print/article/consent-and-
revocation-under-tcpa (last visited Mar. 21, 2023).
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advertising calls or texts to a cell phone. The written agreement must include a clear and
conspicuous disclosure informing the consumer signing that:
o By signing the agreement, the consumer is authorizing autodialed telemarketing or
advertising calls or texts; and
o The consumer is not required to sign the agreement as a condition of purchasing any
property, goods, or services.67
Prior express consent can be written or verbal. Voluntarily providing one’s cellular number also
constitutes prior express consent where:
The individual gives “prior express consent” to be called or texted at the number provided;
The individual has provided his or her number to the party calling or texting; and
There is some relation between the communications and the reason for which an individual
provided his or her number.68
Prior express written consent is required for calls or texts to cell phones that introduce an
advertisement,69 or constitute “telemarketing”70 and are sent using an ATDS. The TCPA’s advertising
prong merely requires introducing, at the most basic level, the commercial availability of a service. In
similar fashion, telemarketing occurs when the context of a text or call indicates that it was initiated and
transmitted to a person for promoting property, goods, or services. Neither the TCPA nor its
implementing regulations requires an explicit mention of a good, product, or service where the
implication of an improper purpose is clear from the context. 71
Revocation of consent is controlled by the consenting party, and may be communicated orally or in
writing by any reasonable means. However, where consent is contractually provided, as is the case in
credit agreements, the parties can bargain to require mutuality or particular revocation methods.
Recently, a number of courts have addressed whether a consumer may unilaterally revoke c onsent
when it is a term in a bargained-for contract.72
In 2017, the federal Second Circuit Court of Appeals held that a consumer may not unilaterally revoke
consent in a bargained-for, bilateral contract.73 The court based its decision on “black-letter” contract
law, referring to a fundamental aspect of contractual relationships that one party may not alter or
revoke a term of a bilateral agreement without the other party’s consent. The court found that a
consumer, having consented to be contacted via an auto-dialer, could not unilaterally revoke consent
without the caller’s permission. Notably, the court distinguished case law from the Third and Eleventh
Circuit Courts of Appeals, where consumers retained their ability to revoke consent because it was
given in credit applications, rather than as part of a bilateral contract. 74
In 2018, a United States District Court in Florida also held that consent provided by contract cannot be
unilaterally revoked.75 The court noted that no provision in the TCPA indicates that contractually-
granted consent can be unilaterally revoked where it would contradict black-letter contract law. The
court held that a consumer who has consented to auto-dialed communication in a contract for services
cannot later revoke such consent.76
However, other courts have disagreed, rejecting the argument that consent is irrevocable. In 2018, a
United States District Court in Tennessee adopted the general rule that consumer consent may be
67 Id.
68 Federal Communications Commission, Rules & Regulations Implementing the TCP Act of 1991 et al., 30 FCC Rcd at 7991–92.
69 47 C.F.R. s. 64.1200(f)(1), defines an “advertisement” as “any material advertising the commercial availability or quality of any
property, goods, or services,” and “telemarketing” is defined as “the initiation of a telephone call or message for the purpo se of
encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.”
70 47 C.F.R. s. 64.1200(f)(12).
71 The National Law Review, supra note 66.
72 Id.
73 Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 53 (2d Cir. 2017).
74 The National Law Review, supra note 67.
75 Medley v. Dish Network, LLC, Case No. 8:16-cv-2534-T-36TBM, 2018 WL 4092120, at *10 (M.D. Fla. Aug. 27, 2018).
76 The National Law Review, supra note 67.
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revoked at any time by “any reasonable means.” 77 The court held that consumers retain the ability to
revoke their prior consent despite having a bilateral agreement with the caller. Other courts have also
allowed for revocation of consent by any means in the absence of a contractual restriction on the
means by which a consumer may revoke consent.78
In December 2020, the U.S. Supreme Court heard oral arguments in a landmark case regarding
whether consumers can sue a company for using an ATDS to text or call the consumers at a phone
number saved in the company’s system. At issue was the meaning of the TCPA’s prohibition on using
an ATDS to transmit communications to cell phones. The question before the Supreme Court was
“whether the definition of ATDS in the TCPA encompasses any device that can ‘store’ and
‘automatically dial’ telephone numbers, even if the device does not use a random or sequential number
generator.”79
On April 1, 2021, the Court ruled that to qualify as an ATDS under the TCPA, a device must have the
capacity to either store a telephone number using a random or sequential number generator or produce
a telephone number using a random or sequential number generator. The Court concluded that merely
having the capacity to store numbers and dial them automatically is not enough to make a device
qualify as an ATDS.80
Specifically, related to consent, the TCPA rules require telemarketers to:
Obtain prior express written consent from consumers before robocalling them;
No longer be able to use an "established business relationship" to bypass the consent
requirement; and
Require an automated, interactive "opt-out" mechanism to be used during each robocall so
consumers can immediately tell the telemarketer to stop calling. 81
The TCPA includes a private right of action.82 A caller who places a call to a cell phone without consent
using an ATDS is subject to $500 in damages per call. The damages amount is $1,500 per call if the
court finds that the defendant willfully or knowingly committed the violation. 83
Specifically, related to consent, the Florida telephone solicitation law:84
Prohibits robocalls without the prior express written consent of the called party.
When the called party has given such consent, only allows robocalls in certain circumstances
through the use of an “automated system for the selection or dialing of telephone numbers or
the playing of a recorded message” when a connection is completed to a number called.
Effect of Proposed Changes
The bill amends s. 501.059, F.S., to clarify restrictions on unwanted telephone solicitation practices.
The bill prohibits unsolicited telephonic sales calls using an automated system for the selection or
dialing of telephone numbers or the playing of a recorded message when a connection is completed to
a number called without the prior express written consent of the called party.
The bill also:
Clarifies notice requirements prior to obtaining consent for telephone calls, text messages, or
the transmission of prerecorded voicemails.
Revises the definition of “prior express written consent” with respect to automated systems and
replaces references to the term “signatory” with the term “called party.”
77 Ammons v. Ally Fin., Inc., Case No. 3:17-cv-00505, 2018 WL 3134619, at *15 (M.D. Tenn. June 27, 2018).
78 Few v. Receivables Performance Mgmt., Case No. 1:17-CV-2038-KOB, 2018 WL 5923765 at *1 (N.D. Ala. Nov. 13, 2018).
79 Facebook, Inc., Petitioner vs. Noah Duguid, et al., U.S., No. 19-511.
80 Id.
81 FCC, supra note 32.
82 47 U.S.C. s. 227(b)(3).
83 Id. at s. 227(b)(3)(B)-(C).
84 S. 501.059(8), F.S.
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Revises what qualifies as a “signature” for purposes of consenting to communications to include
an act that demonstrates express consent, such as checking a box indicating consent or
responding affirmatively to receiving text messages, to an advertising campaign, or to an e-mail
solicitation.
The bill creates a 30-day safe harbor period after a consumer withdraws a previously given valid
consent or communicates, orally or by text message, that he or she does not wish to receive
communications.
The bill provides an effective date of upon becoming a law.
B. SECTION DIRECTORY:
Section 1: Amends s. 501.059, F.S., relating to telephone solicitation.
Section 2: Provides an effective date of upon becoming a law.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may have an indeterminate negative fiscal impact on legitimate telemarketers to the extent they
do not currently engage in business practices consistent with the requirements in the bill.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
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The bill does not appear to create a need for rulemaking or rulemaking authority.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 27, 2023, the Civil Justice Subcommittee adopted one amendment and reported the bill
favorably as a committee substitute. The committee substitute:
Removed a definition for “automatic telephone dialing system” and clarified what constitutes an
automated system for purposes of the bill.
Clarified that a “signature” includes an affirmative act that demonstrates express consent, such as
checking a box.
Provided a safe harbor period of thirty days from the date a consumer withdraws consent to receive
communications or notifies the telephone solicitor that he or she does not want to receive any
communications.
Changed the effective date of the bill to upon becoming a law and removed a provision purporting
to apply the bill’s provisions retroactively.
This analysis is drafted to the committee substitute as passed by the Civil Justice Subcommittee.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 761 2023
1 A bill to be entitled
2 An act relating to telephone solicitation; amending s.
3 501.059, F.S.; revising definitions; prohibiting
4 certain telephonic sales calls; providing conditions
5 under which civil actions may not be brought for
6 specified violations; providing an effective date.
7
8 Be It Enacted by the Legislature of the State of Florida:
9
10 Section 1. Paragraphs (g) and (h) of subsection (1) and
11 paragraph (a) of subsection (8) of section 501.059, Florida
12 Statutes, are amended, and paragraph (c) is added to subsection
13 (10) of that section, to read:
14 501.059 Telephone solicitation.—
15 (1) As used in this section, the term:
16 (g) "Prior express written consent" means a written
17 agreement that:
18 1. Bears the signature of the called party;
19 2. Clearly authorizes the person making or allowing the
20 placement of a telephonic sales call by telephone call, text
21 message, or voicemail transmission to deliver or cause to be
22 delivered to the called party a telephonic sales call using an
23 automated system for the selection and or dialing of telephone
24 numbers, the playing of a recorded message when a connection is
25 completed to a number called, or the transmission of a
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26 prerecorded voicemail;
27 3. Includes the telephone number to which the called party
28 signatory authorizes a telephonic sales call to be delivered;
29 and
30 4. Includes a clear and conspicuous disclosure informing
31 the called party that:
32 a. By executing the agreement, the called party au thorizes
33 the person making or allowing the placement of a telephonic
34 sales call to be made by telephone call, text message, or
35 voicemail transmission to deliver or cause to be delivered a
36 telephonic sales call to the called party a telephonic sales
37 call using an automated system for the selection and or dialing
38 of telephone numbers, if applicable, or the playing of a
39 recorded message when a connection is completed to a number
40 called, or the transmission of a prerecorded voicemail; and
41 b. He or she is not required to directly or indirectly
42 sign the written agreement or to agree to enter into such an
43 agreement as a condition of purchasing any property, goods, or
44 services.
45 (h) "Signature" includes:
46 1. An electronic or digital signature if, to the extent
47 that such form of signature is recognized as a valid signature
48 under applicable federal law or state contract law; and
49 2. An act that demonstrates express consent, including,
50 but not limited to, checking a box indicating consent or
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51 responding affirmatively to receiving text messages, to an
52 advertising campaign, or to an e-mail solicitation.
53 (8)(a) A person may not make or knowingly allow to be made
54 an unsolicited a telephonic sales call to be made if such call
55 involves an automated system for the selection or dialing of
56 telephone numbers or the playing of a recorded message when a
57 connection is completed to a number called without the prior
58 express written consent of the called party.
59 (10)
60 (c) Notwithstanding any other provision of this section,
61 no action shall lie for a violation of subsection (8) for any
62 communication made within 30 days of:
63 1. The called party or consumer communicating with a
64 telephone solicitor or other person, orally or by text message,
65 that such called party or consumer does not wish to receive any
66 communications from that telephone solicitor or person or the
67 seller or organization represented by that telephone solicitor
68 or person.
69 2. The called party or consumer effectively withdrawing a
70 previously given valid consent.
71 Section 2. This act shall take effect upon becoming a law.
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CODING: Words stricken are deletions; words underlined are additions.
hb0761-01-c1
COMMERCE COMMITTEE
CS/HB 761 by Rep. Fabricio
Telephone Solicitation
AMENDMENT SUMMARY
April 10, 2023
Amendment 1 by Rep. Fabricio (strike-all):
• Revises what constitutes a consumer’s “signature” for purposes of giving prior express
written consent to include either an electronic or digital signature or an “act
demonstrating consent,” which may include a simple affirmative response. The bill
currently specifies the signature must include both an electronic or digital signature and
an act demonstrating consent.
• Clarifies what constitutes an automated system for purposes of the bill. Such system
must be for the selection and dialing of telephone numbers or playing of a recorded
message.
• Allows certain telephone calls and text messages related to emergency or health
purposes without prior express written consent of the called party.
• Allows telephone solicitors a 30-day period after receiving a notice from a consumer to
stop text message solicitations.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 761 (2023)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/O OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Commerce Committee
2 Representative Fabricio offered the following:
3
4 Amendment (with title amendment)
5 Remove everything after the enacting clause and insert:
6 Section 1. Paragraphs (g) and (h) of subsection (1) and
7 paragraph (a) of subsection (8) of section 501.059, Florida
8 Statutes, are amended, paragraph (e) is added to subsection (8),
9 and paragraph (c) is added to subsection (10) of that section,
10 to read:
11 501.059 Telephone solicitation.—
12 (1) As used in this section, the term:
13 (g) "Prior express written consent" means a written
14 agreement that:
15 1. Bears the signature of the called party;
16 2. Clearly authorizes the person making or allowing the
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Page 1 of 5
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 761 (2023)
Amendment No. 1
17 placement of a telephonic sales call by telephone call, text
18 message, or voicemail transmission to deliver or cause to be
19 delivered to the called party a telephonic sales call using an
20 automated system for the selection and or dialing of telephone
21 numbers, the playing of a recorded message when a connection is
22 completed to a number called, or the transmission of a
23 prerecorded voicemail;
24 3. Includes the telephone number to which the called party
25 signatory authorizes a telephonic sales call to be delivered;
26 and
27 4. Includes a clear and conspicuous disclosure informing
28 the called party that:
29 a. By executing the agreement, the called party authorizes
30 the person making or allowing the placement of a telephonic
31 sales call to be made by telephone call, text message, or
32 voicemail transmission to deliver or cause to be delivered a
33 telephonic sales call to the called party a telephonic sales
34 call using an automated system for the selection and or dialing
35 of telephone numbers, if applicable, or the playing of a
36 recorded message when a connection is completed to a number
37 called, or the transmission of a prerecorded voicemail; and
38 b. He or she is not required to directly or indirectly
39 sign the written agreement or to agree to enter into su ch an
40 agreement as a condition of purchasing any property, goods, or
41 services.
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 761 (2023)
Amendment No. 1
42 (h) "Signature" includes:
43 1. An electronic or digital signature if, to the extent
44 that such form of signature is recognized as a valid signature
45 under applicable federal law or state contract law; or
46 2. An act that demonstrates express consent, including,
47 but not limited to, checking a box indicating consent or
48 responding affirmatively to receiving text messages, to an
49 advertising campaign, or to an e-mail solicitation.
50 (8)(a) A person may not make or knowingly allow to be made
51 an unsolicited a telephonic sales call to be made if such call
52 involves an automated system for the selection and or dialing of
53 telephone numbers or the playing of a recorded message when a
54 connection is completed to a number called without the prior
55 express written consent of the called party.
56 (e) It is not a violation of this section to initiate a
57 telephone call or text message using an automatic telephone
58 dialing system to deliver a message without the prior express
59 written consent of the called party if the telephone call or
60 text message is initiated for emergency purposes or health
61 purposes. As used in this paragraph, the term:
62 1. "Emergency purposes" means a telephone call or text
63 message made that is necessary in any situation affecting the
64 safety and health of consumers.
65 2. "Health purposes" means a telephone call or text
66 message that delivers a message regarding healthcare from an
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 761 (2023)
Amendment No. 1
67 entity or a business associate of the entity covered un der the
68 Health Insurance Portability and Accountability Act which
69 concerns:
70 a. A product or service that has a healthcare treatment
71 purpose;
72 b. A patient with whom the entity or business associate of
73 the entity has an established healthcare relationship; or
74 c. The individual healthcare needs of a patient.
75 (10)
76 (c) Before the commencement of any action for damages
77 under this section for text message solicitations, the called
78 party must notify the telephone solicitor that the called party
79 does not wish to receive text messages from the telephone
80 solicitor by replying "STOP" to the number from which the called
81 party received text messages from the telephone solicitor.
82 Within 30 days after receipt of such notice, the telephone
83 solicitor shall cease sending text message solicitations to the
84 called party and may not send text messages to the called party
85 thereafter, except that the telephone solicitor may send the
86 called party a text message to confirm receipt of the notice.
87 The called party may bring an action under this section only if
88 the called party does not consent to receive text messages from
89 the telephone solicitor and the telephone solicitor continues to
90 send text messages to the called party 30 days after the called
91 party provided notice to the telephone solicitor to cease such
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 761 (2023)
Amendment No. 1
92 text messages.
93 Section 2. The amendments made by this act to s. 501.059,
94 Florida Statutes, apply to any suit filed on or after the
95 effective date of this act and to any putative class action not
96 certified on or before the effective date of this act.
97 Section 3. This act shall take effect upon becoming a law.
98
99 -----------------------------------------------------
100 T I T L E A M E N D M E N T
101 Remove everything before the enacting clause and insert:
102 A bill to be entitled
103 An act relating to telephone solicitation; amending s.
104 501.059, F.S.; revising definitions; prohibiting
105 certain telephonic sales calls; providing exceptions;
106 providing conditions under which civil actions may be
107 brought for text message solicitations; providing
108 applicability; providing an effective date.
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Page 5 of 5
HB 793
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 793 Collateral Protection Insurance on Real Property
SPONSOR(S): Fernandez-Barquin
TIED BILLS: IDEN./SIM. BILLS: SB 410
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Insurance & Banking Subcommittee 17 Y, 0 N Fortenberry Lloyd
2) State Administration & Technology 12 Y, 0 N Perez Topp
Appropriations Subcommittee
3) Commerce Committee Fortenberry Hamon
SUMMARY ANALYSIS
In general, mortgages require borrowers to maintain adequate homeowners’ insurance on their property.
Borrowers may fail to maintain the required insurance coverage for a variety of reasons, including cancellation
or withdrawal of an insurer from the market. If the policy lapses and the borrower does not secure a
replacement policy, most mortgages allow the lender to obtain insurance for the borrower and “force-place” it.
A lender-placed, or force-placed, insurance policy is an insurance policy placed by a bank or mortgage servicer
on a home when the homeowners’ property insurance has lapsed or is deemed insufficient by the bank or
mortgage servicer. In recent years, there has been significant media attention on the rates charged for lender-
placed insurance policies and whether insurers and lenders are making excess profits on this line of business.
Lender-placed insurance typically is more expensive than the insurance a borrower purchases on his or her
own and provides limited coverage. Concerns have also been raised about “reverse competition” stemming
from the use of lender-place insurance because the lender chooses the coverage provider and amount, but the
borrower must pay for the coverage.
In order to address some of these concerns, the National Association of Insurance Commissioners (NAIC)
issued a Real Property Lender-Placed Insurance Model Act that can be adopted by member states. Florida law
does not use the term lender-placed insurance. Instead, it refers to collateral protection insurance (CPI). The
bill creates a new part (Part XXII) of ch. 627, F.S., for the purposes of:
Regulating CPI on real property;
Establishing a legal framework for the writing of CPI on real property in Florida;
Maintaining separation between lenders or servicers, and insurers or insurance agents; and
Minimizing the possibilities of unfair practices in the sale, placement, or solicitation, and negotiation
of CPI.
Part XXII applies to insurers and insurance agents engaged in transactions of CPI on real property. All CPI
policies for mortgaged real property, including manufactured and mobile homes are subject to Part XXII, with
certain exceptions. The bill contains statutory definitions of CPI and several related terms. CPI is defined as
commercial property insurance under which a creditor is the primary beneficiary and policyholder, and which
protects or covers the creditor’s interest arising out of a credit transaction secured by the real property. CPI is
triggered by the mortgagor’s failure to maintain insurance coverage required by the mortgage or other lending
document. The bill provides the Office of Insurance Regulation with authority to develop rules related to the
regulation of Part XXII.
The bill has no effect on state or local government revenues or expenditures. It may have a positive direct
economic impact on the private sector.
The bill has an effective date of July 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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DATE: 4/6/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Mortgages on Real Property
A mortgage is an agreement between a borrower and a lender that gives the lender the right to take the
property if the borrower fails to pay the loan plus interest.1 A mortgage is generally secured by a
mortgage note, which is a note evidencing a loan for which real property has been offered as security. 2
All mortgages require borrowers to maintain adequate homeowners’ insurance on their property. 3
Borrowers may fail to maintain the required insurance coverage for a variety of reasons, including
cancellation or withdrawal of an insurer from the market. 4 If the policy lapses and the borrower does not
secure a replacement policy, most mortgages allow the lender to obtain insurance for the borrower and
“force-place” it.5
Lender-placed Insurance/Collateral Protection Insurance (CPI)
A lender-placed insurance policy6 is an insurance policy placed by a bank or mortgage servicer on a
home when the homeowners’ property insurance has lapsed or is deemed insufficient by the bank or
mortgage servicer.7 In recent years, there has been significant media attention on the rates charged for
lender-placed insurance policies and whether insurers and lenders are making excess profits on this
line of business.8 Lender-placed insurance typically is more expensive than the insurance a borrower
purchases on his or her own and provides more limited coverage. 9 Concerns have also been raised
about “reverse competition” stemming from the use of lender-placed insurance because the lender
chooses the coverage provider and amount, but the borrower must pay for the coverage. 10
In order to address some of these concerns, the National Association of Insurance Commissioners
(NAIC) issued a Real Property Lender-Placed Insurance Model Act (Model Act) that can be adopted by
member states.11 Its state purpose includes creating a legal framework within which lender-placed
insurance on real property may be written in a particular state. 12 However, Florida law does not use the
term lender-placed insurance. Instead, it refers to collateral protection insurance, which is defined as:
[C]ommercial property insurance under which a creditor is the primary beneficiary
and policyholder and which protects or covers an interest of the creditor arising out
of a credit transaction secured by real or personal property. Initiation of such
coverage is triggered by the mortgagor’s failure to maintain insurance coverage as
1 Consumer Financial Protection Bureau, What is a mortgage?, What is a mortgage? | Consumer Financial Protection
Bureau (consumerfinance.gov) (last visited Mar. 12, 2023). The borrower and the lender are also referred to as the
mortgagor and mortgagee, respectively.
2 Black’s Law Dictionary (11th ed. 2019).
3 NAIC, Lender-Placed Insurance, https://content.naic.org/cipr-topics/lender-placed-insurance (last visited Mar. 12, 2023)
4 Id.
5 Id.
6 Lender-placed insurance is also known as creditor-placed or force-placed insurance.
7 NAIC, supra note 3.
8 Id.
9 Id.
10 Id.
11 Id. Some of these concerns regarding price and coverage have been raised regarding t he lender-place insurers issuing
policies in Florida. However, the largest two insurers issuing these policies are already bound by consent orders with the
Office of Insurance Regulation (OIR) with conditions very similar to those contained in the Model Ac t. A copy of these
consent orders has been requested from OIR, but has not been received as of the publication of this analysis.
12 Id.
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required by the mortgage or other lending document. Collateral protection
insurance is not residential coverage.13
Review of Insurance Policy Forms and Rates
In general, an insurer may not use forms to issue insurance policies in the state unless the forms have
been filed with, and approved by, the Office of Insurance Regulation (OIR).14 Once filed, OIR has 30
days to review insurance forms.15 At the end of the 30-day period, forms will be deemed approved
unless they have been affirmatively approved or disapproved by OIR. 16
Insurers must also file a copy of rates, rating schedules, rating manuals, premium credits or discount
schedules, and surcharge schedules, and changes to these documents, for approval by OIR. 17 OIR
must review insurers’ rate filings to determine whether rates are excessive, inadequate, or unfairly
discriminatory.18 In doing so, OIR must consider factors including, but not limited to, the following:
Past and prospective loss experience in and out of Florida.
Past and prospective expenses.
Degree of competition among insurers for particular risk to be insured.
Investment income reasonably expected by the insurer.
Reasonableness of the judgment reflected in the filing.
Dividends, savings, or unabsorbed premium deposits allowed or returns to policyholders,
members or subscribers in Florida.
Adequacy of loss reserves.
Cost of reinsurance.
Trend factors.
Conflagration and catastrophe hazards, if applicable.
Projected hurricane losses.
Projected flood losses.
Reasonable margin for underwriting profit and contingencies.
Insurers may make rate filings with OIR on a file and use, or use and file basis. If a filing is made on a
file and use basis, OIR has 90 days to review and approve the filing before an insurer may use the filed
rate.19 In contrast, a use and file rate may be used before filing, but must be filed within 30 days of the
effective date.20 A use and file rate is still subject to review and disapproval by OIR. 21
Effect of the Bill
The bill creates a new part of ch. 627, F.S. (Part XXII),22 for the purposes of:
Regulating CPI on real property;
Establishing a legal framework for the writing of CPI on real property in Florida;
Maintaining separation between lenders or services, and insurers or insurance agents; and
Minimizing the possibilities of unfair practices in the sale, placement, or solicitation, and
negotiation of CPI.
13 S. 627.6085, F.S.
14 S. 627.410(1), F.S.
15 S. 627.410(2), F.S.
16 Id.
17 S. 627.062(2)(a), F.S.
18 S. 627.062(1), F.S.
19 S. 627.062(2)(a)1., F.S.
20 S. 627.062(2)(a)2., F.S.
21 Id.
22 The new statutory chapter part will be part XXII of chapter 627, F.S., and will contain ss. 627.9901-627.9913, F.S. It is
similar to the NAIC Model Act, but is drafted in a way that will fit appropriately within the Florida Insurance Code. Chapters
624-632, 634, 635, 636, 641, 642, 648, and 651 constitute the Florida Insurance Code. S. 624.01, F.S.
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Part XXII applies to insurers and insurance agents engaged in transactions of CPI on real property. All
CPI policies for mortgaged real property, including manufactured and mobile homes is subject to Part
XXII, except:
Transactions involving extensions of credit primarily for business, commercial, or agricultural
purposes.
Insurance offered by a lender or servicer and elected by the mortgagor at the mortgagor’s
option.
Insurance purchased by a lender or servicer on real-estate owned property.23
Insurance for which no specific charge is made to the mortgagor or mortgagor’s account.
The bill contains statutory definitions of CPI and several related terms. CPI is defined as commercial
property insurance under which a creditor is the primary beneficiary and policyholder, and which
protects or covers the creditor’s interest arising out of a credit transaction secured by the real
property.24 CPI is triggered by the mortgagor’s failure to maintain insurance coverage required by the
mortgage or other lending document. CPI under Part XXII applies only to mortgaged real property, not
personal property.
Individual CPI is defined in the bill as coverage for individual real property evidenced by a certificate of
coverage under a master CPI policy or a CPI policy for individual real property. A master CPI policy is a
group policy issued to a lender or servicer providing coverage for all loans in the lender’s or servicer’s
loan portfolio, as needed.
Pursuant to the bill, CPI becomes effective no earlier than the date of lapse of insurance on mortgaged
real property. Individual CPI terminates on the earliest of the following dates:
The date on which insurance acceptable under the mortgage agreement becomes effective.
The date on which the applicable real property no longer serves as collateral for a mortgage
loan.
Such other date specified by the individual policy or certificate of insurance.
Such other date as specified by the lender or servicers
The termination date of the policy.
According to the bill, CPI coverage, and the calculation of the related premium, should be based on the
replacement cost value of the real property serving as collateral, as best determined by the last known
coverage amount. The last known coverage amount is the dwelling coverage amount specified in the
most recent evidence of insurance coverage provided by the mortgagee. The bill requires that an
insurer or insurance agent ask the insured, at least once, for the last known coverage amount. If the
insurer or insurance agent cannot obtain the last known coverage amount from the insured or by
another means, the CPI coverage and the calculation of the related premium may be based on the:
Replacement cost value of the real property serving as collateral as calculated by the insurer; or
Unpaid principal balance of the mortgage loan.
Part XXII prohibits the following practices by insurers or insurance agents related to CPI:
Issuing CPI on a mortgaged real property if the insurer or insurance agent or an affiliate of the
insurer or insurance agent owns the real property or performs the servicing for, or owns the
servicing rights to, the real property.
Compensating a lender, insurer, investor, or servicer, including through the payment of
commissions, on CPI policies issued by the insurer.
Sharing CPI premium or risk with the lender, investor, or servicer that obtained the CPI.
Offering contingent commissions, profit-sharing, or other payments dependent on profitability or
loss ratios to any person affiliated with a servicer or the insurer in connection with CPI.
Providing free or below-cost outsourced services to a lender, investor, or servicer and
outsourcing its own functions to a lender, investor, or servicer at a rate above cost.
23 Real-estate owned property is often referred to as bank-owned property, and may be property that failed to sell during a
foreclosure.
24 This definition is similar to the definition of collateral protection insurance in s. 624.6085, F.S., discussed above, except
that definition also includes coverage secured by personal property.
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Making any payments, including, but not limited to, the payment of expenses to a lender,
insurer, investor, or servicer to secure CPI business or related outsourced services.
The bill requires that proof of CPI is provided in an individual policy or certificate of insurance, which
must be delivered to the mortgagor either by mail, in person, or electronically. 25 The individual policy or
certificate of insurance must include all of the following information:
Address and identification of the insured real property.
Coverage amount, or amounts if multiple coverages are provided.
Effective date of coverage.
Term of coverage.
Premium charged for the coverage.
Contact information for filing a claim.
Complete description of the coverage provided.
The policy forms and certificates of insurance for CPI, and related premium rates, must be reviewed
and approved by OIR. As part of the rate review, OIR must also evaluate whether expenses included
by the insurer in the rates are appropriate. The bill requires that insurers subject to Part XXII refile CPI
insurance rates at least once every four years. All insurers writing CPI must have separate rates for CPI
and voluntary insurance obtained by a mortgage servicer on real-estate owned property.
By April 1 each year, each insurer with at least $100,000 in direct written premium for CPI in Florida
during the prior calendar year must report the following information to OIR for the prior calendar year:
Actual loss ratio.26
Earned premiums.
Any aggregate schedule rating debit or credit to earned premium.
Itemized expenses.
Paid losses.
Loss reserves, including case reserves and reserves for incurred but not reported losses. 27
The bill provides OIR with the rights and powers to enforce Part XXII, and all proceedings brought
pursuant to Part XXII will be conducted under the Florida Administrative Procedures Act. 28 It also
provides OIR with rulemaking authority so that it may, after notice and hearing, adopt reasonable rules
and regulations to implement and administer Part XXII. Finally, the bill contains a severability clause so
that if any portion of Part XXII is held invalid, the remainder of the Part is not affected.
B. SECTION DIRECTORY:
Section 1. Creates part XXII of chapter 627, F.S., relating to real property collateral protection
insurance.
Section 2. Provides an effective date of July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
25 The Uniform Electronic Transaction Act, s. 668.50, F.S., provides the requirements for electronic delivery.
26 Loss ratio is an insurer’s actual claims paid plus loss adjustment expenses divided by total earned premiums.
27 Incurred but not reported losses are estimated liabilities from losses that have taken place and not yet but rep orted to
insurers as claims.
28 The Florida Administrative Procedures Act is ch. 120, F.S.
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None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
To the extent that the requirements of Part XXII result in lower CPI premiums for mortgagors, the bill
may have a positive direct economic impact on the private sector.
D. FISCAL COMMENTS:
The bill has no fiscal impact on state or local government revenues or expenditures. 29
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill provides OIR with rulemaking authority so that it may, after notice and hearing, adopt
reasonable rules and regulations to implement and administer Part XXII.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
29 Office of Insurance Regulation, Agency Analysis of 2023 House Bill 793, p. 4.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 793 2023
1 A bill to be entitled
2 An act relating to collateral protection insurance on
3 real property; creating part XXII of ch. 627, F.S.,
4 titled "Real Property Collateral Protection
5 Insurance"; creating s. 627.9901, F.S.; providing
6 purpose; creating s. 627.9902, F.S.; providing scope;
7 creating s. 627.9903, F.S.; providing definitions;
8 creating s. 627.9904, F.S.; providing the effective
9 date of collateral protection insurance on mortgaged
10 real property; providing the termination date of
11 individual collateral protection insurance;
12 prohibiting insurance charges under certain
13 circumstances; creating s. 627.9905, F.S.; providing
14 calculations of coverages and premiums; creating s.
15 627.9906, F.S.; prohibiting collateral protection
16 insurers and insurance agents from engaging in certain
17 practices; creating s. 627.9907, F.S.; providing
18 construction; creating s. 627.9908, F.S.; providing
19 requirements for proof of collateral protection
20 insurance; creating s. 627.9909, F.S.; providing
21 requirements for policy forms, certificates of
22 insurance, and rate filings; providing reporting
23 requirements for certain insurers; creating s.
24 627.9911, F.S.; providing rights and powers of the
25 Office of Insurance Regulation for enforcement
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 793 2023
26 purposes; providing requirements for proceedings;
27 providing penalties; creating s. 627.9912, F.S.;
28 providing rulemaking authority; creating s. 627.9913,
29 F.S.; providing severability; providing an effective
30 date.
31
32 Be It Enacted by the Legislature of the State of Florida:
33
34 Section 1. Part XXII of chapter 627, Florida Statutes,
35 consisting of sections 627.9901, 627.9902, 627.9903, 627.9904,
36 627.9905, 627.9906, 627.9907, 627.9908, 627.9909, 627.9911,
37 627.9912, and 627.9913, Florida Statutes, is created to read:
38 PART XXII
39 REAL PROPERTY COLLATERAL PROTECTION INSURANCE
40 627.9901 Purpose.—The purpose of this part is to:
41 (1) Promote the public welfare by regulating collateral
42 protection insurance on real property.
43 (2) Create a legal framework within which collateral
44 protection insurance on real property may be written in the
45 state.
46 (3) Help maintain the separation between lenders or
47 servicers, and insurers or insurance agents.
48 (4) Minimize the possibilities of unfair competitive
49 practices in the sale, placement, solicitation, and negotiation
50 of collateral protection insurance.
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HB 793 2023
51 627.9902 Scope.—This part applies to insurers and
52 insurance agents engaged in any transaction involving collateral
53 protection insurance on real property. All collateral protection
54 insurance written in connection with mortgaged real property,
55 including manufactured and mobile homes, is subject to the
56 provisions of this part, except:
57 (1) Transactions involving extensions of credit primarily
58 for business, commercial, or agricultural purposes.
59 (2) Insurance offered by the lender or servicer and
60 elected by the mortgagor at the mortgagor's option.
61 (3) Insurance purchased by a lender or servicer on real -
62 estate owned property.
63 (4) Insurance for which no specific charge is made to the
64 mortgagor or the mortgagor's account.
65 627.9903 Definitions.—As used in this part, the term:
66 (1) "Collateral protection insurance" means commercial
67 property insurance under which a creditor is the primary
68 beneficiary and policyholder and which protects or covers an
69 interest of the creditor arising out of a credit transaction
70 secured by real property. Initiation of such coverage is
71 triggered by the mortgagor's failure to maintain insurance
72 coverage as required by the mortgage or other lending document.
73 For purposes of this part, collateral protection insurance
74 applies only to mortgaged real property, not personal property.
75 (2) "Individual collateral protection insurance" means
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76 coverage for individual real property evidenced by a certificate
77 of coverage under a master collateral protection insurance
78 policy or a collateral protection insurance policy for
79 individual real property.
80 (3) "Insurer" means an insurer authorized to issue
81 collateral protection insurance on mortgaged real property in
82 the state.
83 (4) "Investor" means a person or an entity, and affiliates
84 of the person or entity, holding a beneficial interest in loans
85 secured by real property.
86 (5) "Lapse" means the moment in time in which a mortgagor
87 has failed to secure or maintain valid or sufficient insurance
88 upon a mortgaged real property as required by a mortgage
89 agreement.
90 (6) "Last known coverage amount" means a dwelling coverage
91 amount specified in the most recent evidence of insurance
92 coverage provided by the mortgagee.
93 (7) "Lender" means a person or entity, and affiliates of
94 the person or entity, making loans secured by an interest in
95 real property.
96 (8) "Loss ratio" means the ratio of incurred losses to
97 earned premium.
98 (9) "Master collateral protection insurance policy" means
99 a group policy issued to a lender or servicer providing coverage
100 for all loans in the lender's or servicer's loan portfolio as
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101 needed.
102 (10) "Mortgage agreement" means a written document that
103 specifies an obligation or a liability of any kind secured by a
104 lien on a real property and due from, and owing or incurred by,
105 a mortgagor to a lender on account of a mortgage loan, including
106 the security agreement, deed of trust, any other document of
107 similar effect, and any other document incorporated by
108 reference.
109 (11) "Mortgage loan" means a loan, an advance, a
110 guarantee, or other extension of credit from a lender to a
111 mortgagor.
112 (12) "Mortgagee" means a person or an entity that holds a
113 mortgaged real property, or, as applicable, a lien on mortgaged
114 real property, as security for repayment of a mortgage
115 agreement.
116 (13) "Mortgagor" means a person who is obligated on a
117 mortgage loan pursuant to a mortgage agreement.
118 (14) "Real-estate owned property" means a real property
119 owned or held by a lender or servicer following foreclosure
120 under the related mortgage agreement or the acceptance of a deed
121 in lieu of foreclosure.
122 (15) "Replacement cost value" is the estimated cost to
123 replace a covered real property at the time of loss or damage
124 without deduction for depreciation. Replacement cost value is
125 not market value, but the cost to replace the covered real
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126 property to its condition before the loss or damage.
127 (17) "Servicer" means a person or an entity, and
128 affiliates of the person or entity, contractually obligated to
129 service one or more mortgage loans for a lender or investor. The
130 term includes persons or entities involved in subservicing
131 arrangements.
132 627.9904 Terms of policies.—
133 (1) Collateral protection insurance shall become effective
134 no earlier than the date of lapse of insurance upon mortgaged
135 real property subject to the terms of a mortgage agreement or
136 any other state or federal law requiring the same.
137 (2) Individual collateral protection insurance shall
138 terminate on the earliest of the following dates:
139 (a) The date on which insurance that is acceptable under
140 the mortgage agreement becomes effective, subject to the
141 mortgagor providing sufficient evidence of such acceptable
142 insurance.
143 (b) The date on which the applicable real property no
144 longer serves as collateral for a mortgage loan pursuant to a
145 mortgage agreement.
146 (c) Such other date as specified by the individual policy
147 or certificate of insurance.
148 (d) Such other date as specified by the lender or
149 servicer.
150 (e) The termination date of the policy.
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151 (3) An insurance charge may not be made to a mortgagor for
152 collateral protection insurance for a term longer than the
153 scheduled term of the collateral protection insurance, and an
154 insurance charge may not be made to the mortgagor for collateral
155 protection insurance before the effective date of the collateral
156 protection insurance.
157 ` 627.9905 Calculations of coverages and premiums.—
158 (1)(a) Any collateral protection insurance coverage and
159 subsequent calculation of premium should be based upon the
160 replacement cost value of the real property serving as
161 collateral as best determined by the last known coverage amount,
162 if known to the lender or servicer.
163 (b) An insurer or insurance agent shall inquire of the
164 insured, at least once, as to the last known coverage amount
165 and, if the insurer or insurance agent cannot obtain the last
166 known coverage amount from the insured or in another manner, the
167 collateral protection insurance coverage and subsequent
168 calculation of premium may be based upon:
169 1. The replacement cost value of the real property serving
170 as collateral as calculated by the insurer, if the use of
171 replacement cost value for this purpose is not prohibited by
172 other state or federal law; or
173 2 The unpaid principal balance of the mortgage loan, if
174 the use of replacement cost value for this purpose is prohibited
175 by other state or federal law or if the replacement cost value
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176 is not available.
177 (c) In the event of a covered loss, any replacement cost
178 value coverage provided by an insurer in excess of the unpaid
179 principal balance of the mortgage loan shall be paid to the
180 mortgagor.
181 (2) An insurer may not write collateral protection
182 insurance for which the premium rate differs from that
183 determined by the schedules of the insurer on file with the
184 office as of the effective date of such policy.
185 627.9906 Prohibited practices.—An insurer or insurance
186 agent may not:
187 (1) Issue collateral protection insurance on a mortgaged
188 real property if the insurer or insurance agent or an affiliate
189 of the insurer or insurance agent owns the real property or
190 performs the servicing for, or owns the servicing rights to, the
191 real property;
192 (2) Compensate a lender, insurer, investor, or servicer,
193 including through the payment of commissions, on collateral
194 protection property insurance policies issued by the insurer;
195 (3) Share collateral protection insurance premium or risk
196 with the lender, investor, or servicer that obtained the
197 collateral protection insurance;
198 (4) Offer contingent commissions, profit-sharing, or other
199 payments dependent on profitability or loss ratios to any person
200 affiliated with a servicer or the insurer in connection with
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201 collateral protection insurance;
202 (5) Provide free or below-cost outsourced services to a
203 lender, investor, or servicer and may not outsource its own
204 functions to a lender, investor, or servicer on an above-cost
205 basis; or
206 (6) Make any payments, including, but not limited to, the
207 payment of expenses to a lender, insurer, investor, or servicer
208 for the purpose of securing collateral protection insurance
209 business or related outsourced services.
210 627.9907 Noncircumvention.—This part may not be construed
211 to allow an insurance agent or insurer underwriting collateral
212 protection insurance solely to circumvent the requirements
213 specified in this part. Any such requirement, limitation, or
214 exclusion provided in this part applies to all insurers or
215 insurance agents involved in collateral protection insurance.
216 627.9908 Evidence of coverage.—Proof of collateral
217 protection insurance must be provided in an individual policy or
218 a certificate of insurance. A copy of the individual policy,
219 certificate of insurance, or other evidence of insurance
220 coverage shall be mailed by first-class mail or delivered in
221 person to the last known address of the mortgagor or delivered
222 in accordance with s. 668.50, the Uniform Electronic Transaction
223 Act. Notwithstanding any other general law to the contrary, the
224 individual policy or certificate of insurance coverage must
225 include the following information:
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226 (1) The address and identification of the insured real
227 property.
228 (2) The coverage amount or, if multiple coverages are
229 provided, amounts.
230 (3) The effective date of the coverage.
231 (4) The term of coverage.
232 (5) The premium charge for the coverage.
233 (6) Contact information for filing a claim.
234 (7) A complete description of the coverage provided.
235 627.9909 Policy forms and certificates of insurance; rate
236 filings.—
237 (1) Except as otherwise provided in this part, all policy
238 forms and certificates of insurance to be delivered or issued
239 for delivery in the state are subject to the applicable
240 provisions of s. 627.410, and the schedules of premium rates
241 pertaining thereto are subject to the applicable provision s of
242 s. 627.062.
243 (2) With respect to an analysis of rates in accordance
244 with s. 627.062(1), the analysis must also include a
245 determination as to whether expenses included by the insurer in
246 the rates are appropriate.
247 (3) Notwithstanding s. 627.0645, insurers subject to this
248 part shall refile collateral protection property insurance rates
249 at least once every 4 years.
250 (4) All insurers writing collateral protection insurance
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251 must have separate rates for collateral protection insurance and
252 voluntary insurance obtained by a mortgage servicer on real-
253 estate owned property.
254 (5) Upon the introduction of a new collateral protection
255 insurance program, the insurer shall reference its experience in
256 existing programs in the associated filings. This part does not
257 limit an insurer's discretion, as actuarially appropriate, to
258 distinguish different terms, conditions, exclusions, eligibility
259 criteria, or other unique or different characteristics.
260 Moreover, an insurer may, if actuarially acceptable, rely upon
261 models or, in the case of flood filings if applicable experience
262 is not credible, on the Federal Emergency Management Agency's
263 National Flood Insurance Program data.
264 (6)(a) By April 1 of each year, each insurer with at least
265 $100,000 in direct written premium for collateral protection
266 insurance in the state during the prior calendar year shall
267 report to the office the following information for the prior
268 calendar year:
269 1. Actual loss ratio.
270 2. Earned premiums.
271 3. Any aggregate schedule rating debit or credit to earned
272 premium.
273 4. Itemized expenses.
274 5. Paid losses.
275 6. Loss reserves, including case reserves and reserves for
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276 incurred but not reported losses.
277 (b) The report shall be separately produced for each
278 collateral protection insurance program and presented on both an
279 individual-jurisdiction and countrywide basis.
280 (7) Except in the case of collateral protection insurance
281 covering the peril of flood, to which this subsection does not
282 apply, if an insurer experiences an annual loss ratio of less
283 than 35 percent in any collateral protection insurance program
284 for 2 consecutive years, the insurer shall submit a rate filing,
285 either adjusting its rates or supporting the continuance of its
286 rates, to the office no more than 90 days after the submission
287 of the data required in paragraph (6)(a).
288 (8) Except as provided in this section, rate and form
289 filing requirements are subject to the Florida Insurance Code.
290 627.9911 Enforcement and judicial review.—The office shall
291 have all rights and powers to enforce the provisions of this
292 part, as provided in s. 624.307. All proceedings, including
293 judicial review, shall be conducted in accordance with the
294 administrative procedures prescribed in chapter 120. Penalties
295 for any violation of this part shall be assessed in accordance
296 with s. 624.4211.
297 627.9912 Rulemaking authority.—The office may, after
298 notice and hearing, adopt reasonable rules and regulations to
299 implement and administer this part.
300 627.9913 Severability provisions.—If any provision of this
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301 part or the application of the provision to any person or
302 circumstance is held invalid, the remainder of this part and the
303 application of such provision to other persons or circumstances
304 are not affected thereby.
305 Section 2. This act shall take effect July 1, 2023.
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CS/CS/HB 861
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 861 Residential Loan Alternative Agreements
SPONSOR(S): Judiciary Committee, Regulatory Reform & Economic Development Subcommittee, Robinson,
W.
TIED BILLS: IDEN./SIM. BILLS: SB 770
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform & Economic Development 13 Y, 0 N, As CS Larkin Anstead
Subcommittee
2) Judiciary Committee 22 Y, 0 N, As CS Mawn Kramer
3) Commerce Committee Larkin Hamon
SUMMARY ANALYSIS
A listing agreement is a contract in which a property owner gives a real estate broker or sales associate the
authority to find a buyer for his or her property; the terms of such an agreement can generally be negotiated, but
the duration of the agreement, the property’s price and sales terms, and the amount of any fee or commission
must be defined in the contract. Recently, some Florida real estate brokerage firms have been offering
homeowners monetary payments, advertised as an “alternative loan,” in exchange for the exclusive right to list
a homeowner’s property whenever the homeowner decides to put it up for sale; such right comes with the right
to collect a commission on the property’s eventual sale. Where the property owner goes on to try to sell his or
her home with a different listing agent, even where the agreement was entered into years before, the brokerage
firm may file a lien on the homeowner’s property, which lien generally must be paid before the sale can proceed.
The bill:
Defines “residential real property” as improved residential property of four units or fewer or unimproved
residential real property intended for four units or fewer.
Defines “residential loan alternative agreement” as a signed writing between a person and a seller or
owner of residential real property that:
o Grants an exclusive right to a person to act as a broker for the property’s disposition;
o Has an effective duration, inclusive of renewals, of more than two years; and
o Requires the person to pay monetary compensation to the seller or owner.
Defines “disposition” as a transfer or voluntary conveyance of the title or other ownership interest in
residential real estate.
Prohibits a residential loan alternative agreement from authorizing a person to place a lien on or
otherwise encumber any residential real property.
Prohibits a residential loan alternative agreement from constituting a lien, encumbrance, or security
interest in the residential real property.
Prohibits a court from enforcing a residential alternative loan alternative agreement by a lien or
constructive trust in the residential real property or upon the proceeds of the property’s disposition.
Prohibits assignment of a residential loan alternative agreement.
Provides that a residential loan alternative agreement is void if listing services do not begin within 90
days after the agreement’s execution by both parties, and unenforceable in law or equity, as a matter of
public policy, if it does not meet the requirements established by the bill.
Prohibits the clerk of the court from recording a residential loan alternative agreement.
Makes a residential loan alternative agreement violation an unfair or deceptive trade practice.
The bill does not appear to have a fiscal impact on state or local governments.
The bill provides an effective date of July 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Real Estate Agents and Brokers
The Florida Real Estate Commission (FREC), within the Division of Real Estate (Division), at the
Department of Business and Professional Regulation (Department), administers and enforces real
estate licensing laws applicable to real estate brokers 1 and sales associates 2 (colloquially known as
“real estate agents”).3 The FREC is also empowered to adopt rules that enable it to implement its
statutorily authorized duties and responsibilities.4
A person who operates as a broker or sales associate in Florida without having a valid, current, and
active license commits a felony of the third degree.5 FREC may also discipline licensed real estate
brokers and sales associates if FREC finds that the broker or sales associate violated the practice act,
which violations may include:6
Engaging in dishonest, fraudulent transactions;
Advertising property or services in a manner which is fraudulent, false, deceptive, or misleading in
form or content;
Making deceptive, untrue, or fraudulent representations in or related to the practice of a profession
or employing a trick or scheme in or related to the practice of a profession;
Failing to include in any written listing agreement a definite expiration date, description of the
property, price and terms, fee or commission, and a proper signature of the principal; or
Failing to perform any statutory or legal obligation placed upon a licensee.
Further, a real estate broker or sales associate may be convicted of a second degree misdemeanor for
recording a contract or other writing which purports to affect the title of, or encumber, any real property
if the same is known to her or him to be false, void, or not authorized to be placed of record, for the
purpose of collecting a commission, or to coerce the payment of money to the broker or sales associate
or other person.7 This does not prohibit a broker or sales associate from recording a judgment rendered
by a court or placing a lien on a property where expressly permitted by contractual agreement or
otherwise allowed by law.8
Real Estate Listing Agreements
A listing agreement is a contract in which a property owner gives a real estate broker or sales associate
the authority to find a buyer for his or her property; the terms of such an agreement can generally be
negotiated, but the duration of the agreement, the property’s price and sales terms, and the amount of
any fee or commission must be defined in the contract. 9
1 “Broker” means, in pertinent part, a person who, for another, and for compensation or valuable consideration directly or indi rectly paid
or promised, expressly or implied, or with an intent to collect or receive a compensation or valuable consideration th erefor, appraises,
auctions, sells, exchanges, buys, rents any real property or an interest in or concerning the same; or who advertises or hold s out to the
public by any oral or printed solicitation or representation that she or he is engaged in such busi ness. S. 475.01(1)(a), F.S.
2 “Sales associate” means a person who performs any act specified in the definition of “broker,” but who performs such act unde r the
direction, control, or management of another person. S. 475.01(1)(j), F.S.
3 Ch. 475, Part I, F.S.
4 These rules are contained in ch. 61J2, F.A.C.
5 S. 475.42(1)(a), F.S.
6 Ss. 475.25 and s. 455.227, F.S.
7 S. 475.42(1)(i) and (2), F.S.
8 S. 475.42(1)(i), F.S.
9 S. 475.25(1)(r), F.S.; Jean Folger, What is a Listing Agreement? Definition, Types, and How they Work,
https://www.investopedia.com/terms/l/listing-agreement.asp (last visited March 23, 2023).
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There are three types of listing agreements, as shown in the following chart: 10
Types of Listing Agreements Description
Broker acts as agent.
Exclusive Right-to-Sell Agreement Broker receives commission when the property is
sold, regardless of who finds the buyer.
Broker acts as agent.
Exclusive Agency Listing Agreement Broker receives commission if the property is sold
through the broker’s efforts but not if the property is
sold through the seller’s efforts.
Broker acts as agent.
Seller reserves the right to employ any number of
Open Listing Agreement brokers as agents.
Broker whose effort results in the property’s sale
receives commission.
However, Florida courts have held that, even where there is no listing agreement or other special
contract, a broker is entitled to a commission when that person is the procuring cause of a sale.11 Thus,
where a broker engaged to find a buyer for property brings a prospective buyer and the property owner
together, and where sale negotiations between the buyer and property owner begin but only conclude
after the listing agreement expires, the broker is still entitled to a commission.
Liens on Real Property
A lien is a claim against property which evidences a debt, obligation, or duty. 12 Under Florida law, a real
estate broker or sales associate may place a lien on real property where expressly authorized to do so
by contractual agreement or by law.13 This is accomplished by recording the lien in the official records
of the county in which the property lies, thereby putting all persons on notice of the lien’s existence and
the lienholder’s rights to make a claim against the property to satisfy the lien. As county recorder, each
of Florida’s 67 clerks of the circuit court must record certain legal instruments presented to them,
including liens, upon payment of applicable fees or charges.14
Recent Events
Recently, some Florida real estate brokerage firms have been offering homeowners monetary
payments, advertised as an “alternative loan,” in exchange for the exclusive right to list a homeowner’s
property whenever the homeowner decides to put it up for sale; such right comes with the right to
collect a commission on the property’s eventual sale. Some homeowners enter into these “alternative
loan” agreements without realizing that they can last upwards of 40 years; in other words, should the
homeowner decide to sell his or her home at any time within the time period specified in the agreement,
even where that time period extends 40 years into the future, the homeowner must use as his or her
listing agent a broker or sales associate from the brokerage firm with which the homeowner had the
agreement.
However, some homeowners who entered into such agreements have gone on to try to sell their homes
years later, and not realizing their agreements are still in effect, have listed the property with a different
brokerage firm. The original brokerage firm may then, under the terms of the agreement, file a lien
against the property for the value of the commission and any other fees specified in the agreement,
10 National Association of Realtors, Handb ook on Multiple Listing Policy Section 3: Definitions of Various Types of Listing Agreements,
https://www.nar.realtor/handbook-on-multiple-listing-policy/section-3-definitions-of-various-types-of-listing-agreements (last visited
March 23, 2023)
11 Esslinger-Wooten-Maxwell, Inc. v. Lones Family Ltd. P'ship, 298 So. 3d 1176, 1180 (Fla. 3d DCA 2020).
12 Fla. Jur. 2d Liens s. 37:1.
13 S. 475.42(1)(i), F.S.
14 S. 28.222(3), F.S.
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even though the brokerage firm never performed the listing services. 15 The property owner would then
have to either pay the lien to clear the cloud on his or title so that the property could be sold, or else find
a buyer willing to take title subject to the lien, which may be impossible.
One brokerage firm currently utilizing this strategy is MV Realty, which operates in 33 states, including
Florida; according to MV Realty, more than 30,000 people have signed such “alternative loan”
agreements with the firm.16 Recently, the Florida17, Massachusetts 18, Pennsylvania19, and Ohio,
Attorneys General20 sued MV Realty for using misleading contractual terms in these types of
agreements.
Florida Deceptive and Unfair Trade Practices Act (FDUTPA or Act)
The Florida Deceptive and Unfair Trade Practices Act (“FDUTPA” or “Act”) declares unlawful any unfair
or deceptive acts or practices committed in the conduct of any trade or commerce. 21 The Act is a
separate cause of action intended to be an additional remedy to other civil remedies at law, and it is
aimed toward making consumers whole for losses caused by harmful business practices, including
unfair methods of competition and unconscionable, deceptive, or unfair acts or practices in the conduct
of any trade or commerce.
Effect of the Bill
The bill:
Defines:
o “Residential real property” as improved residential property of four units or fewer or
unimproved residential real property intended for four units or fewer.
o “Residential loan alternative agreement” as a signed writing between a person and a seller
or owner of residential real property that:
Grants an exclusive right to a person to act as a broker for the property’s disposition;
Has an effective duration, inclusive of renewals, of more than two years; and
Requires the person to pay compensation to the seller or owner.
o “Disposition” as a transfer or voluntary conveyance of the title or other ownership interest in
residential real estate.
Prohibits a residential loan alternative agreement from authorizing a person to place a lien on or
otherwise encumber any residential real property.
Prohibits a residential loan alternative agreement from constituting a lien, encumbrance, or
security interest in the residential real property.
15 Rebecca Liebson, Florida Company Pays Quick Cash to List Your Home. the Catch? A 40 -Year Contract, Tampa Bay Times (Sept.
6, 2022), https://www.tampabay.com/news/real-estate/2022/09/06/florida-company-pays-quick-cash-to-list-your-home-the-catch-a-40-
year-contract/ (last visited March 23, 2023).
16 Angie Moreschi, MV Realty Facing Congressional Scrutiny Following Channel 11 Investigation (Dec. 21, 2022),
https://www.wpxi.com/news/local/mv-realty-facing-congressional-scrutiny-following-channel-11-
investigation/Y4HNN2X24NEQRFMTNVLB2QNHNQ/ (last visited March 23, 2023).
17 Office of the Attorney General, Attorney General Moody Takes Legal Action against MV Realty for Swindling Florida Homeowners,
(Nov. 29,2022), http://www.myfloridalegal.com/newsrel.nsf/newsreleases/E9E4A2F7281415CE8 5258909007259EC. (last visited
March 23, 2023).
18
Cheryl Fiandaca, Massachusetts Attorney General Sues MV Realty Company after I -Team Investigation (December 14, 2022),
https://www.cbsnews.com/boston/news/mv-realty-attorney-general-lawsuit-massachusetts-iteam-investigation/ (last visited March 23,
2023).
19 Pennsylvania Office of Attorney General , AG Shapiro Sues Real Estate Brokerage Firm MV Realty over Misleading Homeowner
Benefit Program (Dec. 14, 2022), https://www.attorneygeneral.gov/taking-action/ag-shapiro-sues-real-estate-brokerage-firm-mv-realty-
over-misleading-homeowner-benefit-program/#:~:text=Homeowner%20Benefit%20Program-
,AG%20Shapiro%20Sues%20Real%20Estate%20Brokerage%20Firm,Over%20Misleading%20Homeowner%20Benefit%20Program&a
mp;text=HARRISBURG%20%E2%80%94%20Attorney%20General%20Josh%20Sha piro,and%20its%20founder%2C%20Amanda%20
Zachman (last visited March 23, 2023).
20 Ohio Attorney General, “AG Yost Sues MV Realty, Founder and Broker for Illegal Practices (Feb. 15, 2023),
https://www.ohioattorneygeneral.gov/Media/News -Releases/February-2023/AG-Yost-Sues-MV-Realty-Founder-and-Broker-for-Ille (last
visited March 23, 2023).
21 ss. 501.201-213, F.S.
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Prohibits courts from enforcing a residential alternative loan alternative agreement by a lien or
constructive trust in the residential real property or upon the proceeds of the residential real
property’s disposition.
Prohibits the assignment of a residential loan alternative agreement.
Provides that a residential loan alternative agreement is void if listing services do not begin
within 90 days after the agreement’s execution by both parties.
Specifies that, as a matter of public policy, a residential loan alternative agreement that does not
meet the requirements established by the bill is unenforceable in law or equity.
Prohibits the clerk of the court from recording a residential loan alternative agreement.
Makes a violation an unfair or deceptive trade practice within the meaning of FDUTPA.
The bill provides an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1: Creates s. 475.279, F.S.; relating to residential loan alternative agreements for the
disposition of residential real property.
Section 2: Provides an effective date of July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may have a positive economic impact on property owners in the state to the extent that it
eliminates the use of long-term loan alterative agreements and the practice of filing liens to enforce
such agreements. However, the bill may have a negative economic impact on brokerage firms that rely
on such a business model.
D. FISCAL COMMENTS:
None.
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III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 16, 2023, the Regulatory Reform & Economic Development Subcommittee adopted a proposed
committee substitute (“PCS”) and reported the bill favorably as a committee substitute. The PCS:
Defined “residential loan alternative agreement” and replaced the phrase “option to enter into a listing
agreement” with “residential loan alternative agreement” throughout the bill.
Replaced the phrase “broker” with “person” throughout most of the bill.
Prohibited the renewal of a residential loan alternative agreement.
Prohibited a residential loan alternative agreement from authorizing a broker to place a lien on or
otherwise encumber any residential real property.
Provided that a residential loan alternative agreement that does not meet certain requirements is
unenforceable.
On March 23, 2023, the Judiciary Committee adopted one amendment and reported the bill favorably as a
committee substitute. The committee substitute:
Modified the definition of “residential loan alternative agreement” to specify that the effective duration is
inclusive of renewals.
Deleted a provision requiring that a residential loan agreement require notice to and written consent of
the seller or owner before the person may assign the agreement to another person.
Prohibited the assignment of a residential loan alternative agreement.
Deleted a provision capping the term of a residential loan alternative agreement at six months and
prohibiting renewals.
Specified that a residential loan alternative agreement is void if listing services do not begin within 90
days after the agreement’s execution by both parties.
The analysis is drafted to the committee substitute as passed by the Judiciary Committee.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/CS/HB 861 2023
1 A bill to be entitled
2 An act relating to residential loan alternative
3 agreements; creating s. 475.279, F.S.; providing
4 definitions; prohibiting a residential loan
5 alternative agreement from authorizing a person to
6 place a lien or other encumbrance on residential real
7 property or from constituting a lien, encumbrance, or
8 security interest in such property; prohibiting a
9 court from enforcing a residential loan alternative
10 agreement by a lien or constructive trust in the
11 residential real property or upon the proceeds of the
12 disposition of such property; prohibiting the
13 assignment of a residential loan alternative
14 agreement; providing that a residential loan
15 alternative agreement is void if listing services do
16 not begin within a specified timeframe; providing that
17 a residential loan alternative agreement that does not
18 meet specified requirements is void and unenforceable;
19 prohibiting the clerk of the circuit court from
20 recording a residential loan alternative agreement;
21 providing that a violation is a deceptive or unfair
22 trade practice; providing penalties; providing an
23 effective date.
24
25 Be It Enacted by the Legislature of the State of Florida:
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/CS/HB 861 2023
26
27 Section 1. Section 475.279, Florida Statutes, is created
28 to read:
29 475.279 Residential loan alternative agreements for the
30 disposition of residential real property.—
31 (1) As used in this section, the term:
32 (a) "Disposition" means a transfer or voluntary conveyance
33 of the title or other ownership interest in residential real
34 estate.
35 (b) "Residential loan alternative agreement" means a
36 signed writing between a person and a seller or owner of
37 residential real property that:
38 1. Grants an exclusive right to a person to act as a
39 broker for the disposition of the property;
40 2. Has an effective duration, inclusive of renewals, of
41 more than 2 years; and
42 3. Requires the person to pay monetary compensation to the
43 seller or owner.
44 (c) "Residential real property" means improved residentia l
45 property of four or fewer units or unimproved residential real
46 property intended for four or fewer units.
47 (2) A residential loan alternative agreement may not
48 authorize a person to place a lien or otherwise encumber any
49 residential real property. A residential loan alternative
50 agreement may not constitute a lien, an encumbrance, or a
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/CS/HB 861 2023
51 security interest in the residential real property. A court may
52 not enforce a residential loan alternative agreement by a lien
53 or constructive trust in the residential real property or upon
54 the proceeds of the disposition of the residential real
55 property.
56 (3) A residential loan alternative agreement may not be
57 assigned.
58 (4) A residential loan alternative agreement is void if
59 listing services do not begin within 90 days after the execution
60 of the agreement by both parties.
61 (5) As a matter of public policy, a residential loan
62 alternative agreement that does not meet the requirements of
63 this section is unenforceable in law or equity. In addition, a
64 residential loan alternative agreement may not be recorded by
65 the clerk of the circuit court.
66 (6) A violation of this section is deemed an unfair or
67 deceptive trade practice within the meaning of part II of
68 chapter 501, and a person who violates this section is subject
69 to the penalties and remedies provided therein.
70 Section 2. This act shall take effect July 1, 2023.
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COMMERCE COMMITTEE
CS/CS/HB 861 by Rep. Robinson, W.
Residential Loan Alternative Agreements
AMENDMENT SUMMARY
April 10, 2023
Amendment 1 by Rep. Robinson, W. (strike-all):
• Clarifies that an affected homeowner may file a FDUTPA action against a broker.
• Makes clarifying and technical changes.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/CS/HB 861 (2023)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/O OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Commerce Committee
2 Representative Robinson, W. offered the following:
3
4 Amendment
5 Remove everything after the enacting clause and insert:
6 Section 1. Section 475.279, Florida Statutes, is created
7 to read:
8 475.279 Residential loan alternative agreements for the
9 disposition of residential real property.—
10 (1) As used in this section, the term:
11 (a) "Disposition" means a transfer or voluntary conveyance
12 of the title or other ownership interest in residential real
13 estate.
14 (b) "Residential loan alternative agreement" means a
15 signed writing or a signed and written legal instrument or
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/CS/HB 861 (2023)
Amendment No. 1
16 contract between a person and a seller or owner of residential
17 real property that:
18 1. Grants an exclusive right to a person to act as a
19 broker for the disposition of the property;
20 2. Has an effective duration, inclusive of renewals, of
21 more than 2 years; and
22 3. Requires the person to pay monetary compensation to the
23 seller or owner.
24 (c) "Residential real property" means improved residential
25 property of four or fewer residential dwelling units or
26 unimproved residential real property on which four or fewer
27 residential dwelling units may be built.
28 (2) A residential loan alternative agreement may not
29 authorize a person to place a lien on or otherwise encumber any
30 residential real property. A residential loan alternative
31 agreement may not constitute a lien, an encumbrance, or a
32 security interest in the residential real property. A court may
33 not enforce a residential loan alternative agreement by a lien
34 or constructive trust in the residential real property or upon
35 the proceeds of the disposition of the residential real
36 property.
37 (3) A residential loan alternative agreement may not be
38 assigned.
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Page 2 of 3
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/CS/HB 861 (2023)
Amendment No. 1
39 (4) A residential loan alternative agreement is void if
40 listing services do not begin within 90 days after the execution
41 of the agreement by both parties.
42 (5) A residential loan alternative agreement may not be
43 recorded by the clerk of the circuit court.
44 (6) A residential loan alternative agreement must meet all
45 of the requirements of this section or it is unenforceable in
46 law or equity.
47 (7) Notwithstanding s. 501.212, a violation of this
48 section is deemed an unfair or deceptive trade practice within
49 the meaning of part II of chapter 501, and a person who violates
50 this section is subject to the penalties and remedies provided
51 therein.
52 Section 2. This act shall take effect July 1, 2023.
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CS/HB 895
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 895 Labor Pool Act
SPONSOR(S): Regulatory Reform & Economic Development Subcommittee, Basabe
TIED BILLS: IDEN./SIM. BILLS: SB 1154
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY
CHIEF
1) Regulatory Reform & Economic Development 14 Y, 0 N, As CS Wright Anstead
Subcommittee
2) Civil Justice Subcommittee 16 Y, 0 N Mawn Jones
3) Commerce Committee Wright Hamon
SUMMARY ANALYSIS
The Labor Pool Act (“Act”) was enacted in 1995 to protect the health, safety, and well-being of day laborers
throughout the state by outlining uniform standards of conduct and practice for labor pools. The Act requires a
labor pool that operates a labor hall to supply workers with drinking water, sufficient seating, and restroom
facilities. Labor pools must also comply with certain requirements related to payment and safety equipment.
When a worker is affected by a violation of the Act, the worker may seek legal remedies as specified in the Act,
or any other available legal remedy.
The bill provides that a labor pool satisfies the statutory requirements for providing restroom facilities and
drinking water if its labor hall facilities comply with all minimum requirements for public restrooms and drinking
fountains in the Florida Building Code. The bill also provides that a labor pool may provide drinking water
through a water cooler dispenser, by offering bottled water, or by any other similar means.
The bill requires that a worker affected by a violation of the Act must provide written notice of
the alleged violation to the labor pool and give the labor pool 60 days to cure the alleged violation before
bringing a lawsuit against the labor pool. Such a lawsuit must be commenced within one year after the date
that the affected worker serves the written notice.
The bill provides that the remedies specified in the Act for a worker affected by a violation of the Act are the
only remedies available to the worker, and therefore the worker may not pursue any other legal remedy.
The bill does not appear to have a fiscal impact on state or local governments.
The bill provides an effective date of July 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Florida Labor Pool Act – Current Situation
Part II of ch. 448, F.S., also known as the Labor Pool Act (“Act”),1 was enacted in 1995 to protect the
health, safety, and well-being of day laborers throughout the state and to outline uniform standards of
conduct and practice for labor pools. The Act defines “labor pool” as a business entity that operates a
labor hall2 by one or more of the following methods:3
Contracting with third-party users to supply day laborers on a temporary basis;
Hiring, employing, recruiting, or contracting with workers to fulfill contracts for temporary labor;
or
Fulfilling any contracts for day labor in accordance with the Act, even if the entity also conducts
other business.
The Act provides that a labor pool must not:
Charge a day laborer:4
o For safety equipment, clothing, accessories, or any other items required by the nature of
the work;
o More than a reasonable amount to transport a worker to or from the designated worksite;
or
o For directly or indirectly cashing a worker’s check. 5
Request or require that any day laborer sign any document waiving statutory protections.6
Charge more than the actual cost of providing lunch, if the labor pool provides lunch at the
worksite.7
Restrict a day laborer’s right to accept a permanent position with a third-party user to whom the
laborer is referred for temporary work, or to restrict the right of a third-party user to offer
employment to an employee of the labor pool.8
The Act requires a labor pool to:
If operating a labor hall, provide the following facilities for a worker waiting at the hall for a job
assignment:9
o Restroom facilities;
o Drinking water; and
o Sufficient seating.
Select one of the following methods to pay a day laborer for work performed: 10
o Cash;
o Commonly accepted negotiable instruments that are payable in cash, on demand at a
financial institution, and without discount;
o Payroll debit card; or
1 Ch. 95-332, L.O.F.
2 S. 448.22(3), F.S., defines a “labor hall” as a central location maintained by a labor pool where day laborers assemble and a re
dispatched to work for a third-party user.
3
S. 448.22(1), F.S. The act also specifically excludes certain businesses from its provisions: businesses registered as farm labor
contractors; employee leasing companies; temporary help services that solely provide white collar employees, secretarial employees,
clerical employees, or skilled laborers; labor union hiring halls; or labor bureau or employment offices operated by a business entity for
the sole purpose of employing an individual for its own use. See s. 448.23, F.S.
4 “Day labor” means temporary labor or employment that is occasional or irregular for which the worker is employed for not longer than
the time period required to complete the temporary assignment for which the individual worker was hired, although an individu al may be
eligible for additional temporary assignments when available. See s. 448.22(2), F.S.
5 S. 448.24(1), F.S.
6 S. 448.24(3), F.S.
7 S. 448.24(4), F.S.
8 S. 448.24(6), F.S.
9 S. 448.24(5), F.S.
10 S. 448.24(2), F.S.
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o Electronic fund transfer.
Notify a day laborer of the payment method that the labor pool intends to use and the day
laborer’s options to elect a different payment method. 11
If selecting to pay a day laborer by payroll debit card:12
o Offer the day laborer the option to elect payment by electronic fund transfer; and
o Provide the day laborer with a list, including the address, of a nearby business that does
not charge a fee to withdraw the debit card’s contents.
Compensate day laborers at or above the minimum wage. 13
Comply with the Workers’ Compensation Law in ch. 440, F.S. 14
Insure any motor vehicle owned or operated by the labor pool and used for worker
transportation.15
Furnish each worker with a written itemized statement showing in detail each wage deduction.
Give each worker an annual earnings statement summary. 16
Remedies
Under the Act, any worker affected by a violation of the provisions relating to labor pool duties and
obligations may file a lawsuit against the labor pool. In any such lawsuit, the worker may recover actual
and consequential damages, or $1,000, whichever is greater, for each violation, and costs. This legal
remedy is not exclusive and does not prohibit the worker from pursuing any other available legal
remedy.17
Florida Building Code
In 1974, Florida enacted legislation requiring all local governments to adopt and enforce a building
code. In 1992, Hurricane Andrew demonstrated that Florida’s system of local codes did not work and a
study was commissioned to make recommendations for improving Florida’s building standards . In
1998, the Florida Legislature adopted the study’s recommendations for a single state building code and
enhanced state oversight over local code enforcement. In 2000, the Florida Legislature authorized the
implementation of the Florida Building Code (“Building Code”), and that first edition replaced all local
codes on March 1, 2002.18 The current edition of the Building Code is the seventh edition, which is
referred to as the 2020 Florida Building Code.19
Part IV of ch. 553, F.S., is known as the “Florida Building Codes Act” (“FBCA”). The purpose and intent
of the FBCA is to provide a mechanism for the uniform adoption, updating, interpretation, and
enforcement of a single, unified state building code and to ensure that the Building Code is applied,
administered, and enforced uniformly and consistently from jurisdiction to jurisdiction. 20
The Florida Building Commission (Commission) was statutorily created to implement the Building Code.
The Commission, housed within the Department of Business and Professional Regulation, is a 19-
member technical body made up of design professionals, contractors, and government experts in
various disciplines covered by the Building Code. The Commission reviews several International Codes
published by the International Code Council,21 the National Electric Code, and other nationally adopted
11 Id.
12
Id.
13 Id.
14 Id.
15 Id.
16 Id.
17 S. 448.25, F.S.
18 The Florida Building Commission Report to the 2006 Legislature, Florida Department of Community Affairs, p. 4,
http://www.floridabuilding.org/fbc/2006_Legislature_Rpt_rev2.pdf (last visited March 27, 2023).
19 Florida Building Commission Homepage, https://floridabuilding.org/c/default.aspx (last visited March 27, 2023).
20 S. 553.72(1), F.S.
21 The International Code Council (ICC) is an association that develops model codes and standards used in the des ign, building, and
compliance process to “construct safe, sustainable, affordable and resilient structures.” International Code Council, Ab out the ICC,
available at https://www.iccsafe.org/about/who-we-are/ (last visited Mar. 27, 2023).
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model codes to determine if the Building Code needs to be updated; and adopts an updated Building
Code every three years.22
However, the Building Code only provides minimum standards for construction in the state. 23 Thus,
local governments may adopt and enforce amendments specific to their jurisdictions that are more
stringent than the requirements imposed under the Building Code. Such amendments expire upon the
adoption of the newest building code edition, and, thus, a local government must go through the
amendment process every three years in order to maintain any such amendments.24
Water Closets and Drinking Fountains in the Florida Building Code
Section 403 of the Building Code sets standards for minimum plumbing facilities, including water
closets (or, toilets) and drinking fountains, which standards vary based upon the actual use of the
building or space. For a building or space with a “business” use classification, the water closet
occupant load requirement is 1 water closet per 25 occupants for the first 50 occupants and 1 water
closet per 50 occupants for the remainder exceeding 50, while the drinking fountain occupant load
requirement is 1 drinking fountain per 100 occupants.25 However, drinking fountains are not required for
an occupant load of 15 or fewer.26 Additional requirements also apply to both water closets and drinking
fountains as set forth in the Building Code, including requirements for location, directional signage, and
fixture materials and quality. There does not appear to be specific minimum seating requirements for
general businesses in the Building Code.
Florida Labor Pool Act – Effect of the Bill
The bill amends the Act to provide that a labor pool satisfies the requirements for providing restroom
facilities and drinking water if its labor hall facilities comply with all minimum requirements for public
restrooms and drinking fountains in the Florida Building Code, and any applicable local amendments.
The bill also provides that a labor pool may provide drinking water through a water cooler dispenser, by
offering bottled water, or by any other similar means.
The bill provides that a worker affected by a violation of the Act and who seeks to bring a lawsuit, must
first serve the labor pool in accordance with s. 48.081, F.S.,27 with written notice of any alleged
violation. The notice must include a statement that the labor pool’s failure to cure the alleged violation
within 60 days after receipt of the notice may result in a lawsuit being filed against it. A labor pool may
cure a violation relating to its labor hall facilities by modifying the alleged violation to comply with
statutory requirements.
A lawsuit filed under the Act must be filed within one year after the date the affected worker serves
written notice of the alleged violation on the labor pool. The remedies provided under the Act are
exclusive, and the affected worker may not pursue any other available legal remedy for violations of the
Act.
The bill provides an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1: Amends s. 448.24, F.S.; relating to labor pool standards and requirements.
Section 2: Amends s. 448.25, F.S.; relating to remedies.
Section 3: Provides an effective date.
22 Ss. 553.73, and 553.74, F.S.
23 S. 553.72(1), F.S.
24 S. 553.73(4), F.S.
25 2020 Florida Building Code, Plumbing, 7 th Edition, available at: https://codes.iccsafe.org/content/FLPC2020P1/chapter-4-fixtures-
faucets-and-fixture-fittings#:~:text=403.3Required%20public%20toilet%20facilities,be%20provided%20with%20toilet%20facilities (last
visited Mar. 27, 2023).
26 2020 Florida Building Code, Plumbing, 7 th Edition, § 410.2.
27 S. 48.081, F.S., specifies the procedures to be followed in se rving process on a corporation.
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II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may reduce litigation expenses for labor pools due to the mandatory cure period created by the
bill.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
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IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 16, 2023, the Regulatory Reform & Economic Development Subcommittee adopted an
amendment and reported the bill favorably as a committee substitute. The committee substitute:
Clarified the application of minimum standards in the Florida Building Code to water fountains and
restrooms.
Clarified the limitation of remedies.
This analysis is drafted to the committee substitute as passed by the Regulatory Reform & Economic
Development Subcommittee.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 895 2023
1 A bill to be entitled
2 An act relating to the Labor Pool Act; amending s.
3 448.24, F.S.; providing that a labor pool satisfies
4 certain requirements if its facilities meet the
5 minimum requirements in the Florida Building Code and
6 any local amendments thereto; providing drinking water
7 alternatives; amending s. 448.25, F.S.; requiring an
8 aggrieved worker to provide specified notice to a
9 labor pool before bringing a civil action; authorizing
10 a labor pool to cure alleged violations in certain
11 ways; requiring that a civil action be brought within
12 a certain time period; providing exclusive remedies;
13 providing an effective date.
14
15 Be It Enacted by the Legislature of the State of Flor ida:
16
17 Section 1. Subsection (5) of section 448.24, Florida
18 Statutes, is amended to read:
19 448.24 Duties and rights.—
20 (5) A labor pool that operates a labor hall must provide
21 facilities for a worker waiting at the labor hall for a job
22 assignment that include:
23 (a) restroom facilities,.
24 (b) drinking water, and.
25 (c) sufficient seating. A labor pool satisfies
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 895 2023
26 requirements for providing restroom facilities and drinking
27 water if its labor hall facilities comply with all minimum
28 requirements for public restrooms and drinking fountains in the
29 Florida Building Code and any local amendments thereto. A labor
30 pool may also provide drinking water through a water cooler
31 dispenser, by offering bottled water, or by any other similar
32 means.
33 Section 2. Section 448.25, Florida Statutes, is amended to
34 read:
35 448.25 Remedies; damages; costs.—
36 (1)(a) Any worker aggrieved by a violation of s. 448.24
37 has shall have the right to bring a civil action in a court of
38 competent jurisdiction against the labor pool responsible for
39 such violation.
40 (b) Before bringing a civil action pursuant to this
41 section, an aggrieved worker must give the labor pool a
42 reasonable opportunity to cure the alleged violation. The
43 aggrieved worker must serve the labor pool in accordance with s.
44 48.081 with written notice of the alleged violation. Such notice
45 must include a statement that failure by the labor pool to cure
46 the alleged violation within 60 days after receipt of the notice
47 may result in a civil action being filed against it in a court
48 of competent jurisdiction. A labor pool may cure a violation
49 relating to its labor hall facilities by modifying the alleged
50 violation to comply with s. 448.24(5).
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 895 2023
51 (c) In any action commenced pursuant to this section part,
52 the aggrieved worker is shall be entitled to recover actual and
53 consequential damages, or $1,000, whichever is greater, for each
54 violation of s. 448.24 this part, and costs.
55 (2) A civil action brought under s. 448.24 must be filed
56 within 1 year after the date the aggrieved worker s erves written
57 notice of the alleged violation on the labor pool.
58 (3)(2) The remedies provided by this part for a violation
59 of s. 448.24 are not exclusive and shall not preclude the
60 aggrieved worker from pursuing any other remedy at law or equity
61 which the worker may have.
62 Section 3. This act shall take effect July 1, 2023.
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CS/HB 1025
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1025 Government Vehicles
SPONSOR(S): Energy, Communications & Cybersecurity Subcommittee, Caruso
TIED BILLS: IDEN./SIM. BILLS: CS/CS/SB 284
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Energy, Communications & Cybersecurity 17 Y, 0 N, As CS Walsh Keating
Subcommittee
2) Commerce Committee Walsh Hamon
SUMMARY ANALYSIS
Current law requires state agencies that wish to procure commodities or contractual services in excess of
$35,000 to use a competitive solicitation process. A competitive solicitation is the process of requesting and
receiving two or more sealed bids, proposals, or replies submitted by responsive vendors in accordance with
the terms of a competitive process.
State agencies, in many circumstances, are required to take specified actions to promote energy efficiency and
other environmental benefits when conducting public business. When procuring new vehicles, state agencies,
state universities, community colleges, and local governments under a state purchasing plan must first define
the intended purpose for the vehicle and determine which statutorily listed use class applies. Vehicles must be
selected for the greatest fuel efficiency available for the determined class when fuel economy data is available.
Under the bill, any governmental entity that purchases under the state purchasing plan must select vehicles
based on the lowest lifetime ownership costs, including costs for fuel, operations, and maintenance.
The bill strikes the requirement under current law that state agencies use ethanol and biodiesel fuel when
available, and the bill removes the requirement that state agencies that administer central fueling operations
for state-owned vehicles procure biofuels for fleet needs to the greatest extent practicable.
The bill requires DMS to make recommendations before July 1, 2024, to state agencies and local governments
regarding the procurement of electric vehicles and natural gas fuel vehicles.
The bill has no impact state or local government revenues or expenditures.
The bill provides an effective date of July 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
Procurement of Commodities or Contractual Services
Current law specifies the procedures for procurement of commodities or contractual services. 1 The
Department of Management Services (DMS) provides uniform commodity and contractual service
procurement policies, rules, procedures, and forms for use by agencies and eligible users, 2 and
establishes purchasing agreements and procures state term contracts for commodities and contractual
services.3
DMS is required to consider the life-cycle cost of commodities purchased by the state, when applicable
and feasible.4 When calculating the life-cycle cost, the agency may consider the acquisition cost of the
product; the energy consumption and the projected cost of energy over the useful life of the product;
and the anticipated trade-in, resale, or salvage value of the product.5 The agency is authorized to
establish by rule energy-efficiency standards for major energy-consuming products.6
Florida law requires state agencies that wish to procure commodities or contractual services in excess
of $35,0007 to use a competitive solicitation process.8 Competitive solicitation is the process of
requesting and receiving two or more sealed bids, proposals, or replies submitted by responsive
vendors in accordance with the terms of a competitive process, regardless of procurement method. 9
Commodities or contractual services available only from a single source may be exempt from the
competitive solicitation requirement.10 Current law specifies the processes an agency must follow in this
circumstance.11
Climate-friendly Public Business
Current law requires state agencies, in many circumstances, to take specified actions to promote
energy efficiency and other environmental benefits when conducting public business. 12 These actions
include:
Consulting the Florida Climate-Friendly Preferred Products List13 when procuring products from
state term contracts 14 and procuring such products if the price is comparable; 15
Contracting for meeting and conference space only with facilities that have received a special
designation from the Department of Environmental Protection for best practices in water,
1 Ch. 287, F.S.
2 S. 287.032, F.S.
3 S. 287.042(2)(a), F.S.
4 S. 287.083(1), F.S.
5 S. 287.083(5), F.S.
6 S. 287.083(3)(a), F.S.
7 S. 287.017(2), F.S.
8 S. 287.057(1), F.S.
9 S. 287.012(6), F.S.
10 S. 287.057(3)(c), F.S.
11 Id.
12 S. 286.29, F.S.
13 The Florida Climate-Friendly Preferred Products List is developed by DMS, which works with the Department of
Environmental Protection to continually assess the list. The list identifies specific products and vendors that offer energy
efficiency or other environmental benefits over competing products. See s. 286.29(1), F.S.
14 A state term contract is a contract for commodities or contractual services that is competitively procured by DMS and is
used by agencies and other eligible users. See ss. 287.012(28), F.S. and 287.042(2)(a), F.S.
15 S. 286.29(1), F.S.
STORAGE NAME: h1025a.COM PAGE: 2
DATE: 4/6/2023
energy, and waste efficiency standards, absent a determination from the agency head no other
viable alternative exists;16
Ensuring all maintained vehicles meet minimum maintenance schedules shown to reduce fuel
consumption and reporting compliance to DMS;17 and
Using ethanol and biodiesel blended fuels when available. State agencies administering central
fueling operations for state-owned vehicles shall procure biofuels for fleet needs to the greatest
extent practicable.18
Additionally, state agencies, state universities, community colleges, and local governments that
purchase vehicles under a state purchasing plan must first define the intended purpose for the vehicle
and determine which statutorily listed use class 19 the vehicle is being procured for.20 These vehicles
must be selected for the greatest fuel efficiency available for the determined use class when fuel
economy data is available.21 Exceptions may be made for emergency response vehicles in certain
circumstances.22
Effect of the Bill
The bill requires any governmental entity that purchases under the state purchasing plan to select
vehicles for each use class based on the lowest lifetime ownership costs, including costs for fuel,
operations, and maintenance, rather than based on the greatest fuel efficiency.
The bill strikes the requirement under current law that state agencies use ethanol and biodiesel fuel
when available. It also removes the requirement that state agencies that administer central fueling
operations for state-owned vehicles procure biofuels for fleet needs to the greatest extent practicable.
The bill requires DMS to make recommendations before July 1, 2024, to state agencies, state colleges
and universities, and local governments regarding the procurement of electric vehicles and natural gas
fuel vehicles and the best practices for integrating those vehicles into existing fleets.
The bill provides an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1: Amends s. 286.29, F.S., relating to climate-friendly public business.
Section 2: Requires DMS to make specified recommendations.
Section 3: Provides an effective date of July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
16 S. 286.29(2), F.S.
17 S. 286.29(3), F.S.
18 S. 286.29(5), F.S.
19 Listed vehicle use classes are the following: state business travel, designated operator; state business travel, pool
operators; construction, agricultural, or maintenance work; conveyance of passengers; conveyance of building or
maintenance materials and supplies; off-road vehicle, motorcycle, or all-terrain vehicle; emergency response; or other.
See s. 286.29(4), F.S.
20 S. 286.29(4), F.S.
21 Id.
22 Id.
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DATE: 4/6/2023
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 21, 2023, the Energy, Communications & Cybersecurity Subcommittee adopted a proposed
committee substitute (PCS) and reported the bill favorably as a committee substitute. The PCS removed a
provision providing a tax exemption for electric vehicle conversion components and labor and removed a
provision that amends the definition of “single-trade inspection.”
This analysis is drafted to the committee substitute as passed by the Energy, Communications &
Cybersecurity Subcommittee.
STORAGE NAME: h1025a.COM PAGE: 4
DATE: 4/6/2023
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 1025 2023
1 A bill to be entitled
2 An act relating to government vehicles; amending s.
3 286.29, F.S.; revising the selection criteria for
4 purchasing or leasing vehicles for state agencies,
5 state universities, community colleges, and local
6 governments under a state purchasing plan; removing a
7 provision requiring the use and procurement of ethanol
8 and biodiesel blended fuels; requiring the Department
9 of Management Services, before a specified date, to
10 make recommendations to state agencies, state
11 universities, community colleges, and local
12 governments relating to the procurement and
13 integration of electric and natural gas fuel vehicles;
14 providing an effective date.
15
16 Be It Enacted by the Legislature of the State of Florida:
17
18 Section 1. Subsections (4) and (5) of section 286.29,
19 Florida Statutes, are amended to read:
20 286.29 Climate-friendly public business.—The Legislature
21 recognizes the importance of leadership by state government in
22 the area of energy efficiency and in reducing the greenhouse gas
23 emissions of state government operations. The following shall
24 pertain to all state agencies when conducting public business:
25 (4) When procuring new vehicles, all state agencies, state
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hb1025-01-c1
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 1025 2023
26 universities, community colleges, and local governments that
27 purchase vehicles under a state purchasing plan shall first
28 define the intended purpose for the vehicle and determine which
29 of the following use classes for which the vehicle is being
30 procured:
31 (a) State business travel, designated operator;
32 (b) State business travel, pool operators;
33 (c) Construction, agricultural, or maintenance work;
34 (d) Conveyance of passengers;
35 (e) Conveyance of building or maintenance materials and
36 supplies;
37 (f) Off-road vehicle, motorcycle, or all-terrain vehicle;
38 (g) Emergency response; or
39 (h) Other.
40
41 Vehicles described in paragraphs (a) through (h), when being
42 processed for purchase or leasing agreements, must be selected
43 based on the lowest lifetime ownership costs, including costs
44 for fuel, operations, and maintenance, for the greatest fuel
45 efficiency available for a given use class when fuel economy
46 data are available. Exceptions may be made for individual
47 vehicles in paragraph (g) when accompanied, during the
48 procurement process, by documentation indicating that the
49 operator or operators will exclusively be emergency first
50 responders or have special documented need for exceptional
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hb1025-01-c1
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 1025 2023
51 vehicle performance characteristics. Any request for an
52 exception must be approved by the purchasing agency head and any
53 exceptional performance characteristics denoted as a part of the
54 procurement process prior to purchase.
55 (5) All state agencies shall use ethanol and biodiesel
56 blended fuels when available. State agencies administering
57 central fueling operations for state-owned vehicles shall
58 procure biofuels for fleet needs to the greatest extent
59 practicable.
60 Section 2. Before July 1, 2024, the Department of
61 Management Services shall make recommendations to state
62 agencies, state universities, community colleges, and local
63 governments regarding the procurement of electric and natural
64 gas fuel vehicles and best practices for integrating such
65 vehicles into existing fleets.
66 Section 3. This act shall take effect July 1, 2023.
Page 3 of 3
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hb1025-01-c1
Commerce Committee
CS/HB 1025 by Rep. Caruso
Government Vehicles
AMENDMENT SUMMARY
April 10, 2023
Amendment 1 by Rep. Caruso (strike-all):
• Clarifies that the evaluation of a vehicle’s lowest lifetime ownership cost must
include fuel costs only when fuel economy data is available.
• Inserts a provision requiring that state agencies purchase a vehicle that uses
ethanol and biodiesel bended or natural gas fuels when purchasing a vehicle with
an internal combustion engine.
• Adds vehicles powered by renewable energy as defined in law to the list of
vehicle types about which the Department of Management Services must make
procurement recommendations to specified government entities.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1025 (2023)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/O OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Commerce Committee
2 Representative Caruso offered the following:
3
4 Amendment (with title amendment)
5 Remove everything after the enacting clause and insert:
6 Section 1. Subsections (4) and (5) of section 286.29,
7 Florida Statutes, are amended to read:
8 286.29 Climate-friendly public business.—The Legislature
9 recognizes the importance of leadership by state government in
10 the area of energy efficiency and in reducing the greenhouse gas
11 emissions of state government operations. The following shall
12 pertain to all state agencies when conducting public business:
13 (4) When procuring new vehicles, all state agencies, state
14 universities, community colleges, and local governments that
15 purchase vehicles under a state purchasing plan shall first
16 define the intended purpose for the vehicle and determine which
381949 - h1025-strike.docx
Published On: 4/7/2023 6:18:51 PM
Page 1 of 4
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1025 (2023)
Amendment No. 1
17 of the following use classes for which the vehicle is being
18 procured:
19 (a) State business travel, designated operator;
20 (b) State business travel, pool operators;
21 (c) Construction, agricultural, or maintenance work;
22 (d) Conveyance of passengers;
23 (e) Conveyance of building or maintenance materials and
24 supplies;
25 (f) Off-road vehicle, motorcycle, or all-terrain vehicle;
26 (g) Emergency response; or
27 (h) Other.
28
29 Vehicles described in paragraphs (a) through (h), when being
30 processed for purchase or leasing agreements, must be selected
31 based on the lowest lifetime ownership costs, includi ng costs
32 for operations, maintenance, and fuel when fuel economy data is
33 available, for the greatest fuel efficiency available for a
34 given use class when fuel economy data are available. Exceptions
35 may be made for individual vehicles in paragraph (g) when
36 accompanied, during the procurement process, by documentation
37 indicating that the operator or operators will exclusively be
38 emergency first responders or have special documented need for
39 exceptional vehicle performance characteristics. Any request for
40 an exception must be approved by the purchasing agency head and
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Page 2 of 4
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1025 (2023)
Amendment No. 1
41 any exceptional performance characteristics denoted as a part of
42 the procurement process prior to purchase.
43 (5) When a state agency purchases a vehicle with an
44 internal combustion engine, it must All state agencies shall use
45 ethanol and biodiesel blended or natural gas fuels when
46 available. State agencies administering central fueling
47 operations for state-owned vehicles with an internal combustion
48 engine shall procure biofuels for fleet needs to the greatest
49 extent practicable.
50 Section 2. Before July 1, 2024, the Department of
51 Management Services shall make recommendations to state
52 agencies, state universities, community colleges, and local
53 governments regarding the procurement of electric and na tural
54 gas fuel vehicles and other vehicles powered by renewable energy
55 as defined in s. 366.91(2), Florida Statutes, and best practices
56 for integrating such vehicles into existing fleets.
57
58 -----------------------------------------------------
59 T I T L E A M E N D M E N T
60 Remove everything before the enacting clause and insert:
61 An act relating to government vehicles; amending s. 286.29,
62 F.S.; revising the selection criteria for purchasing or leasing
63 vehicles for state agencies, state universities, community
64 colleges, and local governments under a state purchasing plan;
65 specifying that, if available, a state agency must use certain
381949 - h1025-strike.docx
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1025 (2023)
Amendment No. 1
66 fuels in vehicles with internal combustion engines; requiring
67 the Department of Management Services, before a specified date,
68 to make recommendations to state agencies, state universities,
69 community colleges, and local governments relating to the
70 procurement and integration of electric and natural gas fuel
71 vehicles and other vehicles powered by renewable energy ;
72 providing an effective date.
381949 - h1025-strike.docx
Published On: 4/7/2023 6:18:51 PM
Page 4 of 4
HM 1137
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HM 1137 New Nuclear Energy
SPONSOR(S): Overdorf
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Energy, Communications & Cybersecurity 16 Y, 0 N Mortellaro Keating
Subcommittee
2) Commerce Committee Mortellaro Hamon
SUMMARY ANALYSIS
Under Federal Law, the United States Nuclear Regulatory Commission (NRC) is responsible for licensing and
regulating the operation of commercial nuclear power plants in the United States. NRC approval is necessary
before a nuclear power plant can be built and operated, and the NRC holds continued oversight to ensure the
nuclear power plants comply with their regulations to protect public health and safety, defense and security,
and the environment.
Reprocessing turns used and unusable uranium and plutonium into usable energy resources, reclaiming and
repurposing nuclear waste. Many countries have been implementing policies to reprocess nuclear fuel.
This memorial urges the President and Congress to take action to adjust regulatory policy as necessary to
allow states the ability to conduct feasibility studies on reclamation and repurposing of spent nuclear fuel for
new nuclear energy generation.
Legislative memorials are not subject to the Governor’s veto powers and are not presented to the Governor for
review. Memorials have no force of law, as they are mechanisms for formally petitioning the federal
government to act on a particular subject.
This memorial does not have a fiscal impact on the state or local governments.
This memorial is not subject to the Governor’s veto powers.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h1137b.COM
DATE: 4/6/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Reprocessing
Reprocessing generally refers to “the processes used to separate spent nuclear reactor fuel into
nuclear materials that may be recycled for use in new fuel and material that would be discarded as
waste.”1 While there are no commercial reprocessing facilities currently operating in the U.S., there are
many in other countries.2 The process of reprocessing turns used and unusable uranium and plutonium
into usable energy resources, reclaiming and repurposing nuclear waste. The nuclear power formed
from this process is a low-carbon source of energy, since it doesn’t produce CO2 during operations. 3
Many European countries, Russia, China, and Japan have been implementing policies to reprocess
nuclear fuel.4
The U.S. currently has 86,000 metric tons of spent nuclear fuel from commercial reactors which are
stored at 75 sites.5 The spent nuclear fuel is held in repositories.6 While the U.S. has had three
commercial reprocessing plants in the past, they are all currently decommissioned due to nuclear
weapons proliferation concerns and level of radioactivity in the waste. 7
Regulatory Policy for Licensing
For Nuclear Fuel Facilities
Under Federal Law, the United States Nuclear Regulatory Commission (NRC) is responsible for
licensing and regulating the operation of commercial nuclear power plants in the United States. 8
Currently, all operating nuclear power plants have been licensed under a two-step process described in
Title 10 of the Code of Federal Regulations (10 CFR) under Part 50.9 This process requires a
construction permit and an operating license.10 In 1989, to improve regulatory efficiency and add more
predictability to the licensing process, 10 CFR Part 5211 was created, which includes a combined
license that provides the construction permit and an operating license. 12 There are other licensing
options under Part 52, such as Early Site Permits and certified standard plant designs. 13 NRC holds
final authority of approval, and their approval is necessary before a nuclear power plant can be built
and operated.14 The NRC holds continued oversight of these plants to make sure they comply with
NRC regulations to protect public health and safety, defense and security, and the environment. 15
1 United States Nuclear Regulatory Commission, Reprocessing, https://www.nrc.gov/materials/reprocessing.html (last visited Mar. 27,
2023).
2
Id.
3 World Nuclear Association, Processing of Used Nuclear Fuel (Dec. 2020), https://world-nuclear.org/information-library/nuclear-fuel-
cycle/fuel-recycling/processing-of-used-nuclear-fuel.aspx (last visited Mar. 23, 2023).
4 Id.
5 U.S. Government Accountability Office, Commercial Spent Nuclear Fuel: Congressional Action Needed to Break Impasse and
Develop a Permanent Disposal Solution, https://www.gao.gov/products/gao-21-603 (last visited Mar. 27, 2023).
6 Id.
7 World Nuclear Association, Processing of Used Nuclear Fuel, https://world-nuclear.org/information-library/nuclear-fuel-cycle/fuel-
recycling/processing-of-used-nuclear-fuel.aspx (last visited Mar. 27, 2023).
8 United States Nuclear Regulatory Commission, Backgrounder on Nuclear Power Plant Licensing Process,
https://www.nrc.gov/reading-rm/doc-collections/fact-sheets/licensing-process-fs.html (last visited Mar. 23, 2023).
9 10 CFR 50.
10 Backgrounder on Nuclear Power Plant Licensing Process, supra note 7.
11 10 CFR 52.
12 Backgrounder on Nuclear Power Plant Licensing Process, supra note 7.
13 Id.
14 Id.
15 Id.
STORAGE NAME: h1137b.COM PAGE: 2
DATE: 4/6/2023
For Reprocessing Facilities
The Global Nuclear Energy Partnership (GNEP) was an initiative with a comprehensive strategy to
increase U.S. and global energy security, reduce the risk of nuclear proliferation, 16 and improve the
environment.17 The primary goal of implementing this initiative was to establish domestic reprocessing.
In 2008, the U.S. Congress reduced funding of GNEP and this goal dissipated. Between 2008 and
2013, the NRC received four letters from companies supporting an updated reprocessing regulatory
framework. As a result of these letters, the NRC focused its efforts on creating a more broadly
applicable framework for commercial reprocessing facilities. 18 In 2013, the NRC provided resource cost
estimates that would be required to update the NRC regulatory framework for licensing a reprocessing
facility.
In 2020, stakeholders including the Nuclear Energy Institute (NEI), the U.S. Department of Energy
(DOE), the Union of Concerned Scientists (UCS), industry representatives, environmental groups, and
private citizens got involved. In March of 2020, NEI and industry representatives voiced support for
continuing rulemaking for a clear regulatory framework of reprocessing, but none of these industry
stakeholders planned to apply for a reprocessing facility. UCS indicated that they do not support
rulemaking because of proliferation concerns. The NRC reached out to organizations who create
reactors. The NRC determined that in addition to using fresh fuel obtained from enrichment and
fabrication, other advanced reactor designs would eventually be able to source fuel from spent fuel of
other reactors; however, there was limited interest in pursuing reprocessing activities in the near future.
DOE has some reprocessing initiatives, but none of their initiatives require NRC licensing.19 Eventually,
in 2021, the NRC staff determined that reprocessing licensing rulemaking is not currently justified due
to the limited interest from potential applicants for reprocessing facilities and the expansive costs.20
Nuclear Power Plants in Florida
The NRC Regional Officer in Atlanta holds jurisdiction over Florida’s nuclear power reactors. Currently,
there are two operating nuclear power reactors,21 no fuel cycle facilities,22 and no uranium recovery
facilities located in Florida. The four operating nuclear power reactor units, are located in two locations
in Florida, St. Lucie23 and Turkey Point.24 These power plants generate 12% of the state’s electricity.25
Feasibility Studies
16 World 101, What is Nuclear Proliferation, https://world101.cfr.org/global-era-issues/nuclear-proliferation/what-nuclear-proliferation
(last visited Mar. 27, 2023).
17 The Glob al Nuclear Energy Partnership: Greater Energy Security in a Cleaner, Safer World , https://www.energy.gov/articles/global-
nuclear-energy-partnership-0 (last visited Mar. 27, 2023).
18
Reprocessing, supra note 1.
19 While DOE reprocessing is not required to obtain licensing under the NRC, the NRC must be consulted and is required to monito r
DOE waste disposal actions. U.S. Department of Energy, DOE M 435.1 -1, Radioactive Waste Management Manual,
https://www.directives.doe.gov/directives -documents/400-series/0435.1-DManual-1 (last visited Mar. 27, 2023); Office of Environmental
Management, How DOE Makes Reprocessing Waste Determinations, https://www.energy.gov/em/how-doe-makes-reprocessing-waste-
determinations (last visited Mar. 27, 2023).
20
United States Nuclear Regulatory Commission, DISCONTINUATION OF R ULEMAKING – SPENT FUEL R EPROCESSING,
https://www.nrc.gov/docs/ML2030/ML20301A388.pdf.
21 A “nuclear power reactor” uses heat energy released from splitting atoms of certain elements to generate electricity. Uranium is the
basic fuel; World Nuclear Association, Nuclear Power Reactors, https://world-nuclear.org/information-library/nuclear-fuel-cycle/nuclear-
power-reactors/nuclear-power-
reactors.aspx#:~:text=Nuclear%20Power%20Reactors%201%20Nuclear%20reactors%20work%20by,most%20of%20those%20operati
ng%20are%20second-generation.%20More%20items (last visited Mar. 23, 2023).
22 According to the NRC, “fuel cycle facilities” make nuclear fuel for commercial nuclear reactors or manufactur e specialty materials for
the U.S. Navy’s nuclear fleet. There are three types: uranium conversion, uranium enrichment, and fuel fabrication. United States
Nuclear Regulatory Commission, Fuel Cycle Facilities, https://www.nrc.gov/materials/fuel-cycle-fac.html (last visited Mar. 27, 2023).
23 United States Nuclear Regulatory Commission, St. Lucie Plant, Unit 1, https://www.nrc.gov/info-finder/reactors/stl1.html (last visited
Mar. 23, 2023); USNRC, St. Lucie Plant, Unit 2, https://www.nrc.gov/info-finder/reactors/stl2.html (last visited Mar. 23, 2023).
24 United States Nuclear Regulatory Commission, Turkey Point Nuclear Generating Unit 3, https://www.nrc.gov/info-
finder/reactors/tp3.html (last visited Mar. 23, 2023); United States Nuclear Regulatory Commission, Turkey Point Nuclear Generating
Unit 4, https://www.nrc.gov/info-finder/reactors/tp4.html (last visited Mar. 23, 2023).
25 Florida Energy Systems Consortium, Florida Energy Facts, http://floridaenergy.ufl.edu/florida-energy-
facts/#:~:text=Florida%20was%20second%20only%20to%20Texas%20in%202014,including%20rene wable%20energy%2C%20supplie
d%20the%20remaining%20electricity%20generation (last visited Mar. 23, 2023).
STORAGE NAME: h1137b.COM PAGE: 3
DATE: 4/6/2023
A feasibility study is an important step in developing new nuclear projects. 26 As an overview, a
feasibility study will assess all aspects of energy demand, each energy option, cost and technical
aspects, any the varying degrees of social and environmental implications to determine if it is possible,
practical, and viable.27
Effect of the Memorial
The memorial urges the President and Congress to take action to adjust regulatory policy as necessary
to allow states the ability to conduct feasibility studies 28 on reclamation and repurposing of spent
nuclear fuel for new nuclear energy generation.
Legislative memorials are not subject to the Governor’s veto power and are not presented to the
Governor for review.29 Memorials have no force of law, as they are mechanisms for formally petitioning
the federal government to act on a particular subject. Upon adoption by both chambers, copies of the
memorial will be sent to the President of the United States, the President of the United States Senate,
the Speaker of the United States House of Representatives, and each member of the Florida
delegation to the United States Congress.
B. SECTION DIRECTORY:
None.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
26 International Atomic Energy Agency, Preparation of a Feasib ility Study for New Nuclear Power Projects, IAEA N UCLEAR ENERGY
SERIES N O. NG-T-3.3 (2014), https://www-pub.iaea.org/MTCD/Publications/PDF/Pub1633Web-39794849.pdf.
27 Id.
28 Id.
29 A “memorial” is a measure addressed to an executive agency or another legislative body, usually Congress, which expresses the
consensus of the Florida Legislature or urges that certain action be taken on a matter within the jurisdiction of the agency or body to
which it is addressed. When both houses adopt the measure, the memorial is signed by the legislative officers and transmitted to the
Secretary of State for presentation to the addressee. A memorial is not subject to the approval or veto powers of the Governo r, is not
subject to constitutional title requirements, and does not have the effect of law. The Florida Senate, Glossary,
https://www.flsenate.gov/Reference/Glossary (last visited Mar. 23, 2023).
STORAGE NAME: h1137b.COM PAGE: 4
DATE: 4/6/2023
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
STORAGE NAME: h1137b.COM PAGE: 5
DATE: 4/6/2023
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
R E P R E S E N T A T I V E S
HM 1137 2023
1 House Memorial
2 A memorial to the President and Congress of the United
3 States, urging the President and Congress to take
4 action to adjust regulatory policy as necessary to
5 allow states the ability to conduct feasibility
6 studies on reclamation and repurposing of spent
7 nuclear fuel for new nuclear energy generation.
8
9 WHEREAS, nuclear reprocessing technology has been used
10 extensively throughout Europe, Russia, and Japan, and
11 WHEREAS, existing reprocessing technology has resulted in a
12 gain of approximately 30 percent more energy than the initial
13 uranium source, and
14 WHEREAS, the United States has conducted more than 250
15 plant-years of reprocessing technology operations, and
16 WHEREAS, reprocessing technology results in more rapid
17 decay and reduces the volume of high-level nuclear waste to
18 nearly one-fifth, and
19 WHEREAS, fourth generation fast neutron reactors will
20 significantly expand the opportunity for reprocessing technology
21 to include previously underused stockpiles of depleted uranium,
22 and
23 WHEREAS, the use of depleted uranium in reprocessing
24 technology potentially amounts to over 1.2 million tons of
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
R E P R E S E N T A T I V E S
HM 1137 2023
25 underused uranium stockpiles, which significantly reduces the
26 prevalence of uranium mining, and
27 WHEREAS, nuclear fuel is a green energy that supports the
28 carbon-free power demand, and
29 WHEREAS, four nuclear reactors located at two power plants
30 in the state generate more than 3,000 megawatts, powering nearly
31 1.9 million homes with clean energy, and
32 WHEREAS, federal government regulation and policy changes
33 have resulted in the closure of all three civil reprocessing
34 plants in the United States, NOW, THEREFORE,
35
36 Be It Resolved by the Legislature of the State of Florida:
37
38 That the President and Congress of the United States are
39 urged to take action to adjust regulatory policy as necessary to
40 allow states the ability to conduct feasibility studies on
41 reclamation and repurposing of spent nuclear fuel for new
42 nuclear energy generation.
43 BE IT FURTHER RESOLVED that the Secretary of State dispatch
44 copies of this memorial to the President of the United States,
45 the President of the United States Senate, the Speaker of the
46 United States House of Representatives, and each member of the
47 Florida delegation to the United States Congress.
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CS/HB 1221
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1221 Broadband Internet Service Providers
SPONSOR(S): State Administration & Technology Appropriations Subcommittee, Tomkow
TIED BILLS: IDEN./SIM. BILLS: CS/SB 626
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Energy, Communications & Cybersecurity 18 Y, 0 N Keating Keating
Subcommittee
2) State Administration & Technology 13 Y, 0 N, As CS Mullins Topp
Appropriations Subcommittee
3) Commerce Committee Keating Hamon
SUMMARY ANALYSIS
Rural electric cooperatives are electric utilities owned by their customer-members and located primarily in rural
areas where, at least historically, the economics of building or installing electrical infrastructure has not
attracted investment. To promote economic development, a cooperative in Florida may provide any energy or
nonenergy services to its membership. Currently, five of Florida’s 18 rural electric cooperatives are engaged in
or developing broadband service for their members. Both the state and federal government offer grant funds to
entities seeking to expand broadband Internet service into unserved areas.
The term pole attachment refers to the process by which communications services providers can place
communications infrastructure on existing electric utility poles. Rules governing pole attachments seek to
balance the desire to maximize value for users of both electric and communications services with concerns
unique to electric utility poles, such as safety and reliability. Since 2021, the Public Service Commission (PSC)
has had the authority to regulate and enforce rates, charges, terms, and conditions for attachments to poles
owned by investor-owned electric utilities. No party yet has initiated proceedings at the PSC under this
authority. Attachments to poles owned by rural electric cooperatives are, and have historically been, exempt
from regulation.
The bill provides explicit authority for rural electric cooperatives in Florida to “engage in the provisions of
broadband.” The bill defines this phrase to mean:
Providing broadband service directly, through an affiliate, or pursuant to an agreement with a third
party; or
Accepting broadband grant funding pursuant to the Florida Broadband Opportunity Program or from
any other federal or state program offering grants to expand broadband Internet service to unserved
areas of the state.
Under the bill, if a rural electric cooperative engages in the provision of broadband, all poles owned by the
cooperative are subject to the PSC’s pole attachment regulations on the same basis as poles owned by
investor-owned electric utilities. The PSC is granted access to the cooperative’s books and records to the
limited extent necessary to exercise its authority. The bill provides for the continued confidential treatment of
certain records received by the PSC under existing public record exemptions The bill provides that it may not
be construed to impair the contract rights of parties to an existing pole attachment agreement.
The bill does not impact state or local government revenues or local government expenditures. The bill may
increase state government expenditures, but the PSC has indicated that it can handle the expected workload
with existing resources.
The bill provides an effective date of July 1, 2023.
FULL ANALYSIS
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Regulation of Pole Attachments
The term pole attachment refers to the process by which communications services providers can place
communications infrastructure on existing electric utility poles. This reduces the number of poles that
must be built to accommodate utility and communications services, while reducing costs to users of
both services by allowing providers to share costs. Rules governing pole attachments seek to balance
the desire to maximize value for users of both electric and communications services with concerns
unique to electric utility poles, such as safety and reliability. 1 The space requested for a pole
attachment is typically one foot.
Pole attachments, originally by mutual agreement but later by federal statute and regulation, provide
non-pole-owning cable and telecommunication service providers with access to a utility’s distribution
poles, conduits, and ROW for:
Installing fiber, coaxial cable or wires, and other equipment;
Building an interconnected network; and
Reaching customers.2
Congress began regulating pole attachments 3 in 1978.4 The Telecommunications Act of 19965 (the Act)
expanded pole attachment rights to telecommunications 6 carriers. The Act requires utilities 7 to provide
nondiscriminatory access to cable television systems and telecommunications carriers. The Act also
authorizes the Federal Communications Commission8 (FCC) to regulate the rates, terms, and
conditions of attachments by cable television operators to the poles, conduit, or ROW owned or
controlled by utilities in the absence of parallel state regulation. 9 The Legislation withheld from FCC
jurisdiction the authority to regulate attachments where the utility is a railroad, cooperatively organized,
or owned by a government entity.10 Thus, federal pole attachment regulations apply only to investor-
owned electric utilities (IOUs). Municipal and cooperative electric utilities are specifically exempted from
federal pole attachment regulations.
The Act permits utilities to deny access where there is insufficient capacity and for reasons of safety,
reliability or generally applicable engineering purposes. In addition to establishing a right of access, the
Act provides a rate methodology for “attachments used by telecommunications carriers to provide
1 American Public Power Association, Issue Brief: Preserving the Municipal Exemption from Federal Pole Attachment Regulations (Jan.
2021) https://www.publicpower.org/policy/preserving-municipal-exemption-federal-pole-attachment-regulations (last visited Mar. 13,
2021).
2 Edison Electric Institute, Pole Attachments 101, https://ecfsapi.fcc.gov/file/7020708245.pdf (last visited Mar. 13, 2021).
3
47 U.S.C. § 224(a)(4), defines ‘‘pole attachment’’ as “any attachment by a cable television system or provider of telecommuni cations
service to a pole, duct, conduit, or right-of-way owned or controlled by a utility.”
4 The Pole Attachment Act of 1978 granted utility pole access to cable companies, and was designed to promote utility competiti on and
service to the public. Communications Act Amendments of 1978, Pub. L. No. 95 -234. (Feb. 21, 1978).
5 Telecommunications Act of 1996, Pub. LA. No. 104-104, 110 Stat. 56 (1996).
6
The term “telecommunications” means the transmission, between or among points specified by the user, of information of the us er’s
choosing, without change in the form or content of the information as sent and received. 47 U.S.C. § 153(50).
7 47 U.S.C. § 224(a)(1), 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.”
8 The FCC regulates interstate and international communications by radio, television, wire, satellite and cable in all 50 states, the
District of Columbia and U.S. territories. An independent U.S. government agency overseen by Congress, the FCC is the United States'
primary authority for communications law, regulation and technological innovation. FCC, What We Do, https://www.fcc.gov/about-
fcc/what-we-do (last visited Mar 19, 2023).
9 47 U.S.C. § 224.
10 In the Matter of Implementation of Section 224 of the Act- A Nat'l Broadb and Plan for Our Future, 26 F.C.C. Rcd. 5240, 5245–46
(2011)
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telecommunications services”11 in addition to the existing methodology for attachments “used by a
cable television system solely to provide cable service. 12
Federal law broadly preempts the regulation of telecommunications services. 13 However, federal law
allows states to exercise reverse preemption over the FCC’s jurisdiction of communications
infrastructure access,14 meaning that once a state adopts its own utility pole access rules, the FCC
loses jurisdiction over pole attachments to the extent that the state regulates such matters. 15
Pursuant to section 224(c) of the Act16, each state that regulates the rates, terms, and conditions for
pole attachments must certify to the FCC that:
It regulates such rates, terms, and conditions; and
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 provided by the pole owners.
Furthermore, a state is not considered to regulate the rates, terms, and conditions for pole attachments:
Unless the state has issued and made effective rules and regulations implementing the state's
regulatory authority over pole attachments; and
With respect to any individual matter, unless the state takes final action on a complaint
regarding such matter:
o Within 180 days after the complaint is filed with the state, or
o Within the applicable period prescribed for such final action in such rules and regulations
of the state, if the prescribed period does not extend beyond 360 days after the filing of
such complaint.
In Florida
In 2021, Florida exercised its power under the Act to assert reverse preemption over the FCC’s
regulation of pole attachments, directing the Florida Public Service Commission (PSC) to regulate and
enforce rates, charges, terms, and conditions for pole attachments, and to ensure that they are just and
reasonable. Accordingly, Florida law requires the PSC to adopt rules to administer its new regulatory
authority and, in doing so, to consider the interests of the subscribers and users of the services offered
through pole attachments, as well as the interests of the consumers of any pole owner providing such
attachments.17 Florida law maintains the federal regulatory exemption for attachments to poles owned
by government-owned or cooperative electric utilities.
Florida law provides that the Legislature’s intent is to encourage parties to enter into voluntary pole
attachment agreements and provides that it may not be construed to prevent parties from voluntarily
entering into such agreements without PSC approval. The law requires the PSC to hear and resolve
complaints concerning rates, charges, terms, conditions, voluntary agreements, or any denial of access
relative to pole attachments. The law specifies that a party's right to nondiscriminatory access to a pole
is identical to the rights afforded under section 224(f)(1) of the Act,18 and that a pole owner may deny
access to its poles on a nondiscriminatory basis when there is insufficient capacity, for reasons of
safety and reliability, and when required by generally applicable engineering purposes. A pole owner
must consider relevant construction and reliability standards approved by the PSC when evaluating
capacity, safety, reliability, and engineering requirements.
11 47 U.S.C. § 224(e).
12 47 U.S.C. § 224(d).
13 “No State or local statute or regulation, or other State or local legal requirement, may prohibit or h ave the effect of prohibiting the
ability of any entity to provide any interstate or intrastate telecommunications service.” 47 U.S.C. § 253(a).
14 47 U.S.C. § 224(c)(1).
15 Catherine J.K. Sandoval, Contested Places, Utility Pole Spaces: A Competition and Safety Framework for Analyzing Utility Pole
Association Rules, Roles, and Risks, 69 Cath. U. L. Rev. 473, 486–87 (2020).
16 47 U.S.C. § 224(c)
17 Ch. 2021-191, Laws of Fla., codified at s. 366.04(8), F.S.
18 47 U.S.C. s. 224(f)(1) provides for nondiscriminatory access to any pole, duct, conduit, or right-of-way owned or controlled by a utility,
subject to denial, on a nondiscriminatory basis, only on the grounds of insufficient pole capacity or for safety, re liability, or other
engineering purposes.
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Under Florida law, FCC precedent is not binding upon the PSC. However, the bill requires the PSC to
apply the decisions and orders of the FCC and related appellate court decisions when determining just
and reasonable pole attachment rates, terms and conditions unless a pole owner or attaching entity
establishes by competent substantial evidence that an alternative cost-of-service based pole
attachment rate is appropriate and in the public interest.
To help establish precedent on the establishment of pole attachment rates and guide negotiations
toward voluntary pole attachment agreements, Florida law authorizes any pole owner or attaching
entity to participate in the first five formal administrative proceedings conducted by the PSC to
determine pole attachment rates. After the fifth such formal administrative proceeding is concluded by
final order, parties to subsequent pole attachment rate proceedings are limited to the specific pole
owner and pole attaching entities involved in and directly affected by the specific pole attachment rate.
Currently, no party has initiated a pole attachment proceeding at the PSC.
Rural Electric Cooperatives
Rural electric cooperatives are electric utilities that are owned by their consumer-members. These
private companies are generally nonprofit, with their principal purpose being to deliver electrical service
to their members. Rural electric cooperatives are mostly located in rural areas where, at least
historically, the return on investment for building or installing electrical infrastructure was not enough for
investor-owned utilities to want to service them.19
Historically, rural homes, farms, and businesses were some of the last places to electrify in the United
States (U.S.). By the mid-1930’s, 90 percent of U.S. urban homes were electrified,20 however, the
opposite was true in rural areas—only one out of 10 rural homes had electric service. 21 This lack of
electrical service deeply limited economic development in rural areas of the country. Despite this
impact, the costs to electrify most rural areas were usually prohibitive and often thought not
economically feasible.22 In the limited areas where rural electric power was available, often the prices
paid by such consumers were far higher than those paid by their urban counterparts.
In 1935, Executive Order 7037, issued by President Franklin Roosevelt, created the Rural
Electrification Administration (REA). One year later, Congress passed the Rural Electrification Act (Pub.
L. 74–605), codifying the REA and creating a loan program to encourage the growth of rural
electrification. Even with these available federal loans, established investor-owned utilities did not have
much interest in building rural systems. However, there was significant interest from farmer-based
electric cooperatives.23 By 1939, with assistance from REA funds, 413 rural electric cooperatives had
been established in the U.S.,24 and by 1950, 80 percent of U.S. farms had electric service. 25
During a reorganization of the United States Department of Agriculture (USDA) in 1994, the REA was
replaced with the Rural Utilities Service, which still exists today. 26 According to the National Rural
Electric Cooperative Association (NRECA), now over 99 percent of U.S. farms have electrical service. 27
Rural electric cooperatives continue to be the most prevalent way for consumers in rural areas to obtain
electrical service.28
19 University of Wisconsin Center for Cooperatives, Research on the Economic Impact of Cooperatives,
https://reic.uwcc.wisc.edu/electric/ (last visited Mar. 19, 2023).
20
Id.
21 National Rural Electric Cooperative Association, History, https://www.electric.coop/our-organization/history (last visited Mar. 19,
2023).
22 United States Department of Agriculture, Celeb rating the 80th Anniversary of the Rural Electrification Administration , Feb. 21, 2017,
https://www.usda.gov/media/blog/2016/05/20/celebrating-80th-anniversary-rural-electrification-administration (last visited Mar.19,
2023).
23 National Rural Electric Cooperative Association, History, supra note 21.
24 University of Wisconsin Center for Cooperatives, supra note 19.
25 Celeb rating the 80th Anniversary of the Rural Electrification Administration, supra note 22.
26 University of Wisconsin Center for Cooperatives , supra note 19.
27 National Rural Electric Cooperative Association, History, supra note 21.
28 United States Energy Information Administration, Today in Energy: August 15, 2019,
https://www.eia.gov/todayinenergy/detail.php?id=40913.
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As of 2019, rural electric cooperatives in the U.S. averaged 7.98 customers per mile of line, as
compared with 32.4 customers per mile of line for the rest of the electricity industry. In addition, while
rural electric cooperatives have ownership of 42 percent of U.S. electricity distribution lines, their
electricity sales only represent 12 percent of the nation’s overall sales. Rural electric cooperatives have
a different customer mix as well. For rural electric cooperatives, 53 percent of their customers are
residential, with the remainder being commercial, industrial, and transportation customers —which
generally have much higher energy consumption. For the U.S. electric industry at-large, the percentage
of residential customers is 38 percent.29
These factors lead to rural electric cooperatives receiving significantly less revenue per dollar of capital
investment in distribution. Rural electric cooperatives’ average revenue for mile of distribution line is
$19,135 (versus $79,298 for the rest of the electricity industry) and their cost of distribution plant per
customer is $4,219 (versus $3,698).30 Thus, on a per customer basis, the distribution of electric power
in rural areas is higher versus the rest of the industry.
In Florida
In 1937, the REA drafted the Electric Cooperative Corporation Act as a model state law for states to
adopt for forming and operating rural electric cooperatives. Florida’s first distribution electric
cooperatives were formed that same year.31 At that time, much of Florida’s geographic territory lacked
electrical service, due to, like most of the U.S., the lack of enough economic development to make
providing service worthwhile for existing electric companies.
At present, Florida has 18 rural electric cooperatives, with 16 of these cooperatives being distribution
cooperatives and two being generation and transmission cooperatives. These cooperatives are
represented by the Florida Electric Cooperative Association (FECA).32 These cooperatives operate in
57 of Florida’s 67 counties and have more than 2.7 million customers. 33 Much like other areas of the
U.S., Florida rural electric cooperatives serve a large percentage of area, but have a low customer
density. Specifically, Florida cooperatives serve approximately 10 percent of Florida’s total electric
utility customers, but their service territory covers 60 percent of Florida’s total land mass. Each
cooperative is governed by a board of cooperative members elected by the cooperative’s
membership.34
In addition to providing electric service, cooperatives in Florida are authorized to own and operate
water and sewer systems.35 To promote economic development, a cooperative may provide any energy
or nonenergy services to its membership.36
Broadband Internet Deployment
Fixed and mobile broadband Internet services provide access to numerous employment, education,
entertainment, and health care opportunities.37 Communities that lack broadband access can have
difficulty attracting new capital investment. 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. 38 This disparity is
caused primarily by high per-unit construction costs required to build broadband infrastructure across
29 National Rural Electric Cooperative Association, Fact Sheet: Feb ruary 2021, https://www.cooperative.com/programs-
services/bts/documents/data/electric-co-op-fact-sheet-update-february-2021.pdf (last visited Mar. 19, 2023).
30 Id.
31 Seminole Electric Cooperative, Empowering our Community, https://www.seminole-electric.com/ (last visited Mar. 19, 2023).
32 Florida Electric Cooperative Association, Memb ers, https://feca.com/members/ (last visited Mar 19, 2023).
33 Florida Electric Cooperative Association, Our History, https://feca.com/our-history/ (last visited Mar 19, 2023).
34 Id.
35 S. 425.04(4), F.S.
36 S. 425.04 (15), F.S.
37 U.S. Federal Communications Commission (FCC), 2018 Broadb and Deployment Report, at 1 (Feb. 2, 2018),
https://docs.fcc.gov/public/attachments/FCC-18-10A1.pdf (last visited Mar. 23, 2023).
38 FCC, 2021 Broadb and Deployment Report at 63 (Jan. 19, 2021), https://docs.fcc.gov/public/attachments/FCC-21-18A1.pdf (last
visited Mar. 23, 2023). For purposes of this data, ‘fixed broadband services’ are measured at 25 megabits per second downstream and
3 megabits per second upstream.
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larger swaths of rural geographic areas.39 The recent COVID-19 pandemic amplified the need for
broadband Internet access in everyday life. Studies indicate that broadband Internet access matters for
jobs, income, business relocation, civic engagement, and health. 40
Broadband Growth Programs
Florida Broadband Opportunity Program
Established under s. 288.9962, F.S., the Broadband Opportunity Program (BOP) is a competitive
reimbursement program within the Florida Department of Economic Opportunity (DEO). 41 The purpose
of the program is to award grants to applicants who seek to expand broadband Internet service to
unserved areas of Florida. To operate the program, the Legislature appropriated $400 million in
federally funded State and Local Fiscal Recovery Funds (SLFRF) to increase Floridians’ access to
reliable, affordable, and high-speed internet service.42
Connect America Fund
One of the earliest and most significant federal broadband programs is the Connect America Fund,
which is part of the FCC’s Universal Service Fund (USF). Started in 2011, the purpose of the fund is to
provide subsidies to telecommunications companies to expand telecommunications infrastructure in
rural and remote areas of the United States.43 The Connect America Fund is a “high-cost” program,
meaning that it is designed to ensure that consumers in rural, insular, and high cost areas have access
to modern telecommunications networks and that services through those networks, like voice and
broadband, are available at a cost comparable to that in more developed urban areas. 44 The Connect
America Fund is the largest of the USF’s programs, and has an annual budget of $4.5 billion.45
Broadband Technology Opportunities Program
The Broadband Technology Opportunities Program (BTOP) is a federal grant program administered by
the National Telecommunications and Information Administration (NTIA), part of the U.S. Department of
Commerce. The BTOP is funded by the American Recovery and Reinvestment Act of 2009 (Pub. L.
111-5), and has an annual budget of $4 billion. The purpose of the program is to “bridge the
technological divide” and BTOP projects include deploying broadband Internet infrastructure,
enhancing and expanding public computer centers, and encouraging the sustainable adoption of
broadband service.46
USDA Programs: ReConnect Program and the Rural Broadband Program
The USDA operates two programs aimed at developing broadband in rural areas—the ReConnect
Program and the Rural Broadband Program. Though these programs both existed prior to 2021, the
Infrastructure Investment and Jobs Act (Public Law 117-58), signed into law on November 15, 2021,
39
American Broadband Initiative, Milestones Report, at 11 (Feb. 13, 2019),
https://www.ntia.doc.gov/files/ntia/publications/american_broadband_initiative_milestones_report.pdf (last visited Mar. 23, 2023).
40 COVID-19 lockdowns expose the digital have-nots in rural areas – here’s which policies can get them connected (Sep. 2, 2020),
https://theconversation.com/covid-19-lockdowns-expose-the-digital-have-nots-in-rural-areas-heres-which-policies-can-get-them-
connected-144324 (last visited Mar. 23, 2023).
41
Florida Department of Economic Opportunity, Broadb and Opportunity Program , https://www.floridajobs.org/community-planning-and-
development/broadband/broadband-opportunity-program (last visited Mar. 19, 2023).
42 Id.
43 Federal Communications Commission, Universal Service Monitoring Report, Feb. 13, 2023, (available at:
https://www.fcc.gov/general/federal-state-joint-board-monitoring-reports).
44 Federal Communications Commission, Universal Service for High Cost Areas-Connect America Fund,
https://www.fcc.gov/general/universal-service-high-cost-areas-connect-america-fund#releases (last visited Mar. 19, 2023).
45 Universal Service Administrative Co., Program Overview, https://www.usac.org/high-cost/program-overview/ (last visited Mar 3,
2023).
46 National Telecommunications and Information Administration, Broadband Technology Opportunities Program,
https://ntia.gov/category/broadband-technology-opportunities-
program#:~:text=The%20Broadband%20Technology%20Opportunities%20Program,in%20communities%20across%20the%20country
(last visited Mar. 19, 2023).
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provided new funding for both of these programs (and other broadband initiatives). The ReConnect
Program received $1.926 billion in funds for grants and loans and the Rural Broadband Program
received $74 million in funds for loans.47
The purpose of the ReConnect Program is to offer loans, grants, and loan-grant combinations to
facilitate broadband deployment in rural areas that currently do not have sufficient access to
broadband. The entities eligible to apply for the Reconnect Program include:
Corporations, limited liability companies, and limited liability partnerships;
State and local governments;
U.S. territories and possessions; and
Indian tribes, as defined in Section 4 of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. §450b).48
Reconnect grants may be used for:
Construction or improvement of facilities required to provide fixed terrestrial broadband
services;
Funding of reasonable pre-application expenses; and
Funding the acquisition of an existing telecommunications system that does not currently
provide sufficient access to broadband.49
The Rural Broadband Program offers funds to help construct, improve, or acquire facilities and
equipment needed to provide broadband to rural areas. The entities eligible to apply for the program
are:
Corporations
Limited liability companies
Cooperative or mutual organizations
State and local governments
Indian tribes and tribal organizations
For the most recent years prior to 2021, Congress only appropriated funds to the Rural Broadband
Program for loans. However, with the increase in funding under the Infrastructure Investment and Jobs
Act, funding for grants and loan guarantees is also now available in the program. 50
While the USDA’s Reconnect and Rural programs are similar in their purpose, a key distinction lies in
the standards for eligible service areas. For the ReConnect Program, eligible service areas exist where
at least 90% of households lack sufficient access to broadband with at least 100 Mbps download and
20 Mbps upload speed (100/20 Mbps service). For the Rural Broadband Program, the standard for
eligibility is if the area in question does not have at least 50% of households with at least 25 Mbps
download and 3 Mbps upload speed (25/3 Mbps service).
Rural Electric Cooperative Engagement in Broadband
According to the NRECA, about 200 rural electric cooperatives are currently providing or building out
broadband service. In addition, the NRECA states that 200 additional rural electric cooperatives are
“assessing the feasibility of providing service to more than 6 million households in co-op service areas
that don’t have access to high-speed internet service.”51 To support its members who are or would like
to be engaged in the broadband business, the NRECA launched a new level of service for its members
in July 2022 called NRECA Broadband.52 The stated purpose of NRECA Broadband is to offer federal
47 Congressional Research Service, Infrastructure Investment and Job s Act: Funding for USDA
Rural Broadb and Programs, Nov. 19. 2021, https://crsreports.congress.gov/product/pdf/IF/IF11918 (last visited Mar. 19, 2023).
48 United States Department of Agriculture, ReConnect Program, https://www.usda.gov/reconnect/program-overview (last visited Mar.
19, 2023).
49 Id.
50 Federal Communications Commission, Universal Service for High Cost Areas-Connect America Fund, supra note 4447.
51 National Rural Electric Cooperatives Association, Broadband, https://www.electric.coop/issues-and-policy/broadband (last visited
Mar. 19, 2023).
52 Id.
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policy and regulatory advocacy; communication, events, and education; and operations and technology
support.53
While rural electric cooperatives have experience in operating a monopoly electric utility, many have
little institutional experience in operating in a non-monopoly competitive market in general or in
broadband telecommunications specifically. Thus, these companies can face challenges in learning
how to market and provide broadband services.54
Currently, five of Florida’s 18 rural electric cooperatives, are engaged in or developing broadband
service:
Glades Electric Cooperative (5.1 members per mile of line).
Central Florida Electric Cooperative (6.34 members per mile of line).
Suwannee Valley Electric Cooperative (4.5 members per mile of line).
Tri-County Electric Cooperative (4.48 members per mile of line).
Escambia River Electric Cooperative (6.94 members per mile of line).
According to the FECA, these five cooperatives are the most rural in nature of the cooperatives in
Florida.55
Confidentiality of Records Provided to the PSC
Florida law provides public record exemptions for records received by the PSC which contain
proprietary confidential business information.56 For records provided to the PSC under chapter 366,
Florida Statutes, which includes the PSC’s authority to regulate pole attachments, a person must
request and the PSC must find that such records contain proprietary confidential business information.
For records provided to the PSC under chapter 364, F.S., a person need only claim that such records
are proprietary confidential business information, with such claims subject to challenge at the PSC. 57
Effect of the Bill
The bill provides explicit authority for rural electric cooperatives in Florida to “engage in the provisions
of broadband.” The bill defines this phrase to mean:
Providing broadband service directly, through an affiliate, or pursuant to an agreement with a
third party; or
Accepting broadband grant funding pursuant to the Florida Broadband Opportunity Program or
from any other federal or state program offering grants to expand broadband Internet service to
unserved areas of the state.
53 Cooperative.com, NRECA Broadb and, https://www.cooperative.com/topics/telecommunications-broadband/nreca-
broadband/Pages/default.aspx (last visited Mar. 19, 2023).
54 National Rural Electric Cooperatives Association, Along Those Lines: What It Takes for Electric Co-ops to Enter the Broadb and
Space, Jan 24, 2023, https://www.electric.coop/along-those-lines-what-it-takes-for-electric-co-ops-to-enter-the-broadband-space.
55 Senate Analysis of CS/SB 626 (2023), p. 15 (March 8, 2023), citing an email from Drew Love, Director of Government Affairs, Florida
Electric Cooperatives Association, to Senate Regulated Industries Staff (Mar. 6, 2023).
56
See, e.g., ss. 366..093 and 364.183, F.S. For purposes of these exemptions, “proprietary confidential business information” means
information, regardless of form or characteristics, which is owned or controlled by the person or company, is intended to be and is
treated by the person or company as private in that the disclosure of the information would cause harm to the ratepayers or the
person’s or company’s business operations, and has not been disclosed unless disclosed pursuant to a statutory provision, an order of
a court or administrative body, or private agreement that provides that the information will not be released to the public. Proprietary
confidential business information includes, but is not limited to:
Trade secrets.
Internal auditing controls and reports of internal auditors.
Security measures, systems, or procedures.
Information concerning bids or other contractual data, the disclosure of which would impair the efforts of the public utility or its
affiliates to contract for goods or services on favorable terms.
Information relating to competitive interests, the disclosure of which would impair the competitive business of the provider of
the information.
Employee personnel information unrelated to compensation, duties, qualifications, or responsibilities.
57 Id.
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Under the bill, if a rural electric cooperative engages in the provision of broadband, all poles owned by
the cooperative are subject to the PSC’s pole attachment regulations on the same basis as poles
owned by investor-owned electric utilities. The PSC is granted access to the cooperative’s books and
records to the limited extent necessary to exercise this authority. Upon request of the cooperative, the
PSC must maintain the confidential or exempt status of any records it receives that are proprietary
confidential business information under existing public records exemptions in chapter 366, F.S., (which
specifies the PSC’s authority over attachments to investor-owned utility poles) or chapter 364, F.S.,
(which, under the bill, extends the PSC’s authority to poles owned by rural electric cooperatives that
provide broadband service).
The bill provides that it may not be construed to impair the contract rights of a party to a valid pole
attachment agreement in existence before July 1, 2023.
The bill provides an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1. Creates s. 364.391, F.S., relating to rural electric cooperatives engaged in the provision
of broadband.
Section 2. Amends s. 425.04, F.S., relating to powers of rural electric cooperatives.
Section 3. Provides an effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
The bill may increase state government expenditures. However, the PSC has indicated that it can
handle the expected increased workload within existing resources. 58
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The financial and legal responsibilities of parties to rural electric cooperative pole attachment
arrangements in Florida may substantially change depending on the PSC’s implementation of new pole
attachment regulatory authority under this bill.
58 Florida Public Service Com mission, Agency Analysis of 2023 HB 1221, p. 2 (Mar. 3, 2023).
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D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. The bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill does not authorize or require agency rulemaking.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 29, 2023, the State Administration and Technology Appropriations Subcommittee adopted an
amendment to the bill and reported the bill favorably as a committee substitute. The amendment:
Clarified that the bill applies to a rural electric cooperative that engages in the provision of
broadband, either directly, through an affiliate, or under agreement with a third party.
Defined terms.
Granted the PSC access to books and records of a rural electric cooperative and provides for the
continued confidential treatment of certain records under existing public record exemptions.
Provided that the bill may not be construed to impair the contract rights of a party to a valid pole
attachment agreement in existence before July 1, 2023.
This analysis is drafted to the committee substitute approved by the State Administration & Technology
Appropriations Subcommittee.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 1221 2023
1 A bill to be entitled
2 An act relating to broadband Internet service
3 providers; creating s. 364.391, F.S.; defining terms;
4 specifying that the poles of rural electric
5 cooperatives that are engaged in the provision of
6 broadband are subject to regulation by the Public
7 Service Commission; authorizing the commission to
8 access the books and records of such cooperatives for
9 specified purposes; providing that such information
10 that contains proprietary confidential business
11 information retains its confidential or exempt status
12 when held by the commission; providing construction;
13 amending s. 425.04, F.S.; authorizing rural electric
14 cooperatives to engage in the provision of broadband;
15 providing an effective date.
16
17 Be It Enacted by the Legislature of the State of Florida:
18
19 Section 1. Section 364.391, Florida Statutes, is created
20 to read:
21 364.391 Rural electric cooperatives engaged in the
22 provision of broadband.-
23 (1) As used in this section, the term:
24 (a) "Affiliate" means an entity related through a parent
25 cooperative's controlling interest. The term includes a
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26 subsidiary or any other entity under common control with the
27 cooperative.
28 (b) "Cooperative" means a rural electric cooperative
29 established pursuant to chapter 425.
30 (c) "Engages in the provision of broadband" means an
31 entity that:
32 1. Provides broadband service directly, through an
33 affiliate, or pursuant to an agreement with a third party; or
34 2. Accepts broadband grant funding pursuant to s. 288.9962
35 or from any other federal or state program offering grants to
36 expand broadband Internet service to unserved areas of this
37 state.
38 (2) If a cooperative engages in the provision of
39 broadband:
40 (a) All poles owned by the cooperative are subject to
41 regulation under s. 366.04(8) on the same basis as if such
42 cooperative were a public utility under that subsection; and
43 (b) The commission may access the books and records of
44 such cooperative to the limited extent necessary to perform its
45 functions and to exercise its authority under ss. 366.04(8) and
46 366.97(4). Upon request of the cooperative, any records the
47 commission receives under this paragraph which are proprietary
48 confidential business information under s. 364.183 or s. 366.093
49 shall retain their status as confidential or exempt from
50 disclosure under s. 119.07(1) and s. 24(a), Art. I of the State
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51 Constitution.
52 (3) This section may not be construed to impair the
53 contract rights of a party to a valid pole attachment agreement
54 in existence before July 1, 2023.
55 Section 2. Section 425.04, Florida Statutes, is amended to
56 read:
57 425.04 Powers.—A cooperative shall have all of the
58 following powers power:
59 (1) To sue and be sued, in its corporate name.;
60 (2) To have perpetual existence.;
61 (3) To adopt a corporate seal and alter the same at
62 pleasure.;
63 (4) To generate, manufacture, purchase, acquire,
64 accumulate and transmit electric energy, and to distribute,
65 sell, supply, and dispose of electric energy in rural areas to
66 its members, to governmental agencies and political
67 subdivisions, and to other persons not in excess of 10 percent
68 of the number of its members; to process, treat, sell, and
69 dispose of water and water rights; to purchase, construct, own
70 and operate water systems; to own and operate sanitary sewer
71 systems; and to supply water and sanitary sewer services.
72 However, a no cooperative may not shall distribute or sell any
73 electricity, or electric energy to any person residing within
74 any town, city, or area in which the person is receiving
75 adequate central station service or who at the time of
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76 commencing such service, or offer to serve, by a cooperative, is
77 receiving adequate central station service from any utility
78 agency, privately or municipally owned individual partnership or
79 corporation.;
80 (5) To make loans to persons to whom electric energy is or
81 will be supplied by the cooperative for the purpose of, and
82 otherwise to assist such person in, wiring their premises and
83 installing therein electric and plumbing fixtures, appliances,
84 apparatus and equipment of any and all kinds and character, and
85 in connection therewith, to purchase, acquire, lease, sell,
86 distribute, install and repair such electric and plumbing
87 fixtures, appliances, apparatus and equipment, and to accept or
88 otherwise acquire, and to sell, assign, transfer, endorse,
89 pledge, hypothecate and otherwise dispose of notes, bonds and
90 other evidences of indebtedness and any and all types of
91 security therefor.;
92 (6) To make loans to persons to whom electric energy is or
93 will be supplied by the cooperative for the purpose of, and
94 otherwise to assist such persons in, constructing, maintaining
95 and operating electric refrigeration plants.;
96 (7) To become a member in one or more other cooperatives
97 or corporations or to own stock therein.;
98 (8) To construct, purchase, take, receive, lease as
99 lessee, or otherwise acquire, and to own, hold, use, equip,
100 maintain, and operate, and to sell, assign, transfer, convey,
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101 exchange, lease as lessor, mortgage, pledge, or otherwise
102 dispose of or encumber, electric transmission and distribution
103 lines or systems, electric generating plants, electric
104 refrigeration plants, lands, buildings, structures, dams, plants
105 and equipment, and any and all kinds and classes of real or
106 personal property whatsoever, which shall be deemed necessary,
107 convenient or appropriate to accomplish the purpose for which
108 the cooperative is organized.;
109 (9) To purchase or otherwise acquire; to own, hold, use
110 and exercise; and to sell, assign, transfer, convey, mortgage,
111 pledge, hypothecate, or otherwise dispose of or encumber,
112 franchises, rights, privileges, licenses, rights-of-way and
113 easement.;
114 (10) To borrow money and otherwise contract indebtedness;
115 to issue notes, bonds, and other evidences of indebtedness
116 therefor; and to secure the payment thereof by mortgage, pledge,
117 deed of trust, or any other encumbrance upon any or all of its
118 then owned or after-acquired real or personal property, assets,
119 franchises, revenues or income.;
120 (11) To construct, maintain, and operate electric
121 transmission and distribution lines along, upon, under and
122 across all public thoroughfares, including without limitation,
123 all roads, highways, streets, alleys, bridges and causeways, and
124 upon, under and across all publicly owned lands, subject,
125 however, to the requirements in respect of the use of such
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126 thoroughfares and lands that are imposed by the respective
127 authorities having jurisdiction thereof upon corporations
128 constructing or operating electric transmission and dist ribution
129 lines or systems.;
130 (12) To exercise the power of eminent domain in the manner
131 provided by the laws of this state for the exercise of that
132 power by corporations constructing or operating electric
133 transmission and distribution lines or systems.;
134 (13) To engage in the provision of broadband pursuant to
135 s. 364.391.
136 (14) To conduct its business and exercise any or all of
137 its powers within or without this state.;
138 (15)(14) To adopt, amend, and repeal bylaws.; and
139 (16)(15) To do and perform any and all other acts and
140 things, and to have and exercise any and all other powers which
141 may be necessary, convenient or appropriate to accomplish the
142 purpose for which the cooperative is organized.
143 (17) To promote economic development by providing, an
144 electric cooperative may provide any energy or nonenergy
145 services to its membership.
146 Section 3. This act shall take effect July 1, 2023.
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CS/HB 1413
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1413 Health Care Expenses
SPONSOR(S): Healthcare Regulation Subcommittee, Tramont
TIED BILLS: IDEN./SIM. BILLS: SB 268
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Healthcare Regulation Subcommittee 15 Y, 0 N, As CS Poche McElroy
2) Commerce Committee Lloyd Hamon
3) Health & Human Services Committee
SUMMARY ANALYSIS
The United States spends more per person on health care than any other high-income country in the world and
spending has continued to increase over the past few decades.
Health care prices are a primary driver of health care spending. One study found that commercial health
spending per enrollee increased by 21.8% between 2015 and 2019. The rising prices of health care services
accounted for approximately two-thirds of that growth, with prices for prescription drugs, provider services
(e.g., physical examinations, screenings and procedures) and inpatient and outpatient care rising by 18.3%.
Medical costs can result in overwhelming debts to patients, and in some cases, bankruptcy. Nationwide, over
100 million have some form of medical debt. Four in ten U.S. adults have some form of health care debt. About
half of adults – including three in ten who do not currently have health care debt – are vulnerable to falling in
the debt, saying they would be unable to pay a $500 unexpected medical bill without borrowing money. While
about a third of adults with health care debt owe less than $1,000, even small amounts of debt can have
significant financial consequences for some.
CS/HB 1413 increases patient access to health care cost information, and offers a measure of protection from
unreasonable and burdensome medical debt. The various provisions apply to hospitals, ambulatory surgical
centers, health insurers, and HMOs. The bill brings provisions from recent federal law and regulation into state
law; in doing so, the bill requires compliance by facilities and insurers as a condition of state licensure, thus
ensuring that these provisions will be fully adopted and adequately enforced in Florida. Specifically, the bill:
Requires hospitals and ambulatory surgical centers (ASCs) to post a consumer-friendly list of standard
charges for at least 300 shoppable health care services on a facility website, consistent with federal
rule.
Requires hospitals and ambulatory surgical centers to automatically provide patients with personalized
pre-treatment estimates on the costs of care within certain timeframes.
Requires a health plan, upon receipt of a facility cost estimate, to develop an advanced explanation of
benefits, in accordance with the federal No Surprises Act of 2020.
Prohibits hospitals and ASCs from taking actions to collect medical debt in certain circumstances.
Requires hospitals and ASCs to establish an internal grievance process for patients to dispute charges.
Increases exemptions from attachment, garnishment, or other legal process to include a single motor
vehicle and personal property of a debtor of a value up to $10,000 when debt is incurred as a result of
medical services provided in a licensed hospital facility, and establishes a 3-year statute of limitations
on bringing legal action to collect medical debt.
Specifies that shared savings incentives offered by health plans are to be counted as medical expenses
for rate development and rate filing purposes, consistent with recent federal regulations.
The bill does not have a fiscal impact on state or local government.
The bill provides an effective date of October 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Health Care Spending
Health spending in the United States has exploded in the last 50 years, totaling $74.1 billion in 1970,
increasing to $1.4 trillion by 2000, then tripling in 2021 to $4.3 trillion. 1
The United States spends more per person on health care than any other high-income country in the
world and spending has continued to increase over the past few decades. Health spending per person
in the U.S. was $12,914 in 2021, more than $5,000 greater than any other high-come nation.2
The following chart illustrates the rate of growth in total national health expenditures per capita from
1970 to 20213:
1 Peterson-Kaiser Family Foundation, Health System Tracker, Health Spending – How has U.S. spending on healthcare changed over
time?, February 7, 2023, available at https://healthsystemtracker.org/chart-collection/u-s-spending-healthcare-changed-time/ (last
viewed on March 23, 2023).
2 Peterson-Kaiser Family Foundation, Health System Tracker, Health Spending – How does health spending in the U.S. compare to
other countries?, February 9, 2023, available at https://healthsystemtracker.org/chart-collection/health-spending-u-s-compare-countries/
(last viewed on March 23, 2023). The average amount spent on health per person in comparable countries – $6,125 – is less than half
of what the U.S. spends.
3 Supra, FN 1.
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Health care prices are a primary driver of health care spending. Between 1970 and 2019, total U.S.
health care spending grew from 6.9 percent of GDP to 17.7 percent of GDP.4 The Organization for
Economic Cooperation Development estimated that total spending in 2019 in member countries
averaged 8.8 percent of GDP, compared with 16.8 percent in the U.S. 5 One study found that U.S.
commercial health spending per enrollee increased by 21.8% between 2015 and 2019.6 The rising
prices of health care services accounted for approximately two-thirds of that growth, with prices for
prescription drugs, provider services (physical examinations, screenings and procedures) and
inpatient and outpatient care rising by 18.3%.7 At the same time, increased service quantity accounted
for nearly one-fifth of overall spending growth, as per capita use increased by only 3.6 percent. 8 The
following chart details the factors contributing to the growth in spending, per capita, in the U.S.:9
4 Health Affairs, Research Brief – Considering Health Spending, The Role of Prices in Excess US Health Spending, June 9, 2022,
available at https://www.healthaffairs.org/do/10.1377/hpb20220506.381195/full/> (citing the Centers for Medicare and Medicaid
Services statistics at https://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-
Reports/NationalHealthExpendData/NationalHealthAccountsProjected) (last viewed on March 23, 2023).
5 Id.
6 Health Care Cost Institute, 2019 Health Care Cost and Utilization Report, pg. 2, available at
https://healthcostinstitute.org/images/pdfs/HCCI_2019_Health_Care_Cost_and_Utilization _Report.pdf.
7 Id.
8 Supra, FN 4.
9 Id., pg. 6.
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Health Care Price Transparency
The United States is experiencing significant changes in health care payment and delivery.
Consumers bear a greater share of health care costs, and more participate in high deductible health
plans. Clear, factual information about the cost and quality of health care is necessary for consumers
to select value-driven health care options and for consumers and providers to be involved in and
accountable for decisions about health and health care services. To promote consumer involvement,
health care pricing and other data needs to be free, timely, reliable, and reflect individual health care
needs and insurance coverage.
Price transparency can refer to the availability of provider-specific information on the price for a
specific health care service or set of services to consumers and other interested parties. 10 Price can be
defined as an estimate of a consumer’s complete cost on a health care service or services that reflects
any negotiated discounts; is inclusive of all costs to the consumer associated with a service or
services, including hospital, physician, and lab fees; and, identifies a consumer’s out-of-pocket cost.11
Further, price transparency can be considered "readily available information on the price of health care
services that, together with other information, helps define the value of those services and enables
patients and other care purchasers to identify, compare, and choose providers that offer the desired
level of value."12 Indeed, the definition of the price or cost of health care has different meanings
depending on who is incurring the cost.13
10 Government Accounting Office, Meaningful Price Information is Difficult for Consumers to Ob tain Prior to Receiving Care , September
2011, pg. 2, available at http://www.gao.gov/products/GAO-11-791.
11 Id.
12 Healthcare Financial Management Association, Price Transparency in Health Care: Report from the HFMA Price Transparency Task
Force, pg. 2, 2014, available at https://www.hfma.org/content/dam/hfma/document/policies_and_practices/PDF/22279.pdf.
13 Id.
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As health care costs continue to rise, most health insurance buyers are asking their consumers to take
on a greater share of their costs, increasing both premiums and out-of-pocket expenses. According to
the Kaiser Family Foundation, more than one in five Americans with private insurance is enrolled in a
high deductible health plan. Most covered workers face additional out-of-pocket costs when they use
health care services, such as co-payments or coinsurance for physician visits and hospitalizations.
Eighty-eight percent of covered workers have a general annual deductible14 for single coverage that
must be met before most services are paid for by their health plan. 15
Among covered workers with a general annual deductible, the average deductible amount for s ingle
coverage is $1,763.16 Deductibles differ by firm size; for workers in plans with a deductible, the
average deductible for single coverage is $2,543 in small firms, compared to $1,493 for workers in
large firms.17 Sixty-one percent of covered workers in small firms are in a plan with a deductible of at
least $1,000 for single coverage compared to 56 percent in large firms; a similar pattern exists for
those in plans with a deductible of at least $2,000 (49 percent for small firms vs. 25 percent for large
firms). The chart below shows the percent of workers enrolled in employer-sponsored insurance with
an annual deductible of $1,000 or more for single coverage by employer size for 2009 through 2022.18
Looking at the increase in deductible amounts over time does not capture the full impact for workers
because the share of covered workers in plans with a general annual deductible also has increased
significantly, from 59% in 2008 to 74% in 2011 to 88% in 2022. If we look at the change in deductible
amounts for all covered workers (assigning a zero value to workers in plans with no deductible), we
can look at the impact of both trends together. Using this approach, the average deductible for all
covered workers in 2022 is $1,763, up nearly 100% from $883 in 2013 and over 400% from $433 in
2008.
14 The term “general annual deductible” means a deductible wh ich applies to both medical and pharmaceutical benefits and which must
be met by the insured individual before most services are covered by the health plan.
15 The Henry J. Kaiser Family Foundation, 2022 Employer Health Benefits Survey, October 27, 2022, available at
https://www.kff.org/health-costs/report/2022-employer-health-benefits-survey/ (last viewed on March 23, 2023).
16 Id.
17 Id.
18 Id., figure 7.13.
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From 2016 to 2022, the average premium for covered workers with family coverage increased 20%,
while inflation totals just 11% over the same period; over the last ten years, the average premium rose
43%, while inflation grew at 17% over the same time frame.19 The dramatic increases in the costs of
health care in recent years have focused significant attention on the need for greater communication
and transparency to inform individual health care choices.
National Price Transparency Studies
To explore how expanding price transparency efforts could produce significant cost savings for the
healthcare system, the Gary and Mary West Health Policy Center funded an analysis, “Healthcare
Price Transparency: Policy Approaches and Estimated Impacts on Spending.” This report, conducted
in collaboration with researchers from the Center for Studying Health System Change and RAND,
found that implementation of three policy changes could save $100 billion over ten years.
Provide personalized out-of-pocket expense information to patients and families before
receiving care.
Provide prices to physicians through electronic health record systems when ordering treatments
and tests.
Expand state-based all-payer health claims databases, which could save up to $55 billion by
collecting and providing data and analytics tools that supply quality, efficiency and cost
information to policy makers, employers, providers, and patients. 20
The report specifically found that requiring all private health insurance plans to provide personalized
out-of-pocket price data to enrollees would reduce total health spending by an estimated $18 billion
over the 10-year period from 2014 to 2023.21
As Americans take on more of their health care costs, research suggests that they are looking for
more and better price information.22
19 Id.
20 White, C., Ginsburg, P., et al., Gary and Mary West Health Policy Center, Healthcare Price Transparency: Policy Approaches and
Estimated Impacts on Spending, May 2014, available at http://www.westhealth.org/wp-content/uploads/2015/05/Price-Transparency-
Policy-Analysis-FINAL-5-2-14.pdf.
21 Id., pg. 1.
22 Public Agenda and Robert Wood Johnson Foundation, How Much Will It Cost? How Americans Use Prices in Health Care, March
2015, page 34, available at https://www.publicagenda.org/reports/how-much-will-it-cost-how-americans-use-prices-in-health-care/.
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One study in 2014, which included a survey of more than 2,000 adults from across the country, found
that 56 percent of Americans actively searched for price information before obtaining health care,
including 21 percent who compared the price of health care services across multiple providers. 23 The
chart below illustrates the finding that, as a consumer's health plan deductible increases, the
consumer is more likely to seek out price information.24
The individuals who compared prices stated that such research affected their health care choices and
saved them money.25 In addition, the study found that most Americans do not equate price with quality
of care. Seventy-one percent do not believe higher price reflects higher level care quality and 63
percent do not believe that lower price is indicative of lower level care quality. 26 Consumers enrolled in
high-deductible and consumer-directed health plans are more price-sensitive than consumers with
plans that have much lower cost-sharing obligations. Accordingly, these consumers find an estimate of
their individual out-of-pocket costs more useful than any other kind of health care price transparency
tool.27 Another study found that when they have access to well-designed reports on price and quality,
80 percent of health care consumers will select the highest value health care provider. 28
Florida Price Transparency: Florida Patient's Bill of Rights and Responsibilities
In 1991, the Legislature enacted the Florida Patient’s Bill of Rights and Responsibilities (Patient’s Bill
of Rights).29 The statute established the right of patients to expect medical providers to observe
standards of care in providing medical treatment and communicating with their patients.30 The
standards of care include, but are not limited to, the following aspects of medical treatment and patient
communication:
Individual dignity;
Provision of information;
Financial information and the disclosure of financial information;
Access to health care;
Experimental research; and
23 Id., pg. 3.
24 Id., pg. 13.
25 Id., pg. 4.
26 Supra, FN 14.
27 American Institute for Research, Consumer Beliefs and Use of Information Ab out Health Care Cost, Resource Use, and Value ,
Robert Wood Johnson Foundation, October 2012, pg. 4, available at
https://www.rwjf.org/content/dam/farm/reports/issue_briefs/2012/rwjf402126 .
28 Hibbard, JH, et al., An Experiment Shows That a Well-Designed Report on Costs and Quality Can Help Consumers Choose High-
Value Health Care, Health Affairs 2012; 31(3): 560-568.
29 S. 1, Ch. 91-127, Laws of Fla. (1991); s. 381.026, F.S.
30 S. 381.026(3), F.S.
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Patient’s knowledge of rights and responsibilities.
A patient has the right to request certain financial information from health care providers and
facilities.31 Specifically, upon request, a health care provider or health care facility must provide a
person with a reasonable estimate of the cost of medical treatment prior to the provision of treatment. 32
Estimates must be written in language “comprehensible to an ordinary layperson.” 33 The reasonable
estimate does not preclude the health care provider or health care facility from exceeding the estimate
or making additional charges as the patient’s needs or medical condition warrant. 34 A patient has the
right to receive a copy of an itemized bill upon request and to receive an explanation of charges upon
request.35
Currently, under the Patient’s Bill of Rights financial information and disclosure provisions:
A request is necessary before a health care provider or health care facility must disclose to a
Medicare-eligible patient whether the provider or facility accepts Medicare payment as full
payment for medical services and treatment rendered in the provider’s office or health care
facility.
A request is necessary before a health care provider or health care facility is required to furnish
a person an estimate of charges for medical services before providing the services. The Florida
Patient’s Bill of Rights and Responsibilities does not require that the components making up the
estimate be itemized or that the estimate be presented in a manner that is easily understood by
an ordinary layperson.
A licensed facility must place a notice in its reception area that financial information related to
that facility is available on the website of the Agency for Health Care Administration (AHCA).
The facility may indicate that the pricing information is based on a compilation of charges for the
average patient and that an individual patient’s charges may vary.
A patient has the right to receive an itemized bill upon request.
Health care providers and health care facilities are required to make available to patients a summary
of their rights. The applicable regulatory board or Agency may impose an administrative fine when a
provider or facility fails to make available to patients a summary of their rights.36
The Patient’s Bill of Rights also authorizes, but does not require, primary care providers 37 to publish a
schedule of charges for the medical services offered to patients. 38 The schedule must include certain
price information for at least the 50 services most frequently provided by the primary care provider. 39
The law also requires the posting of the schedule in a conspicuous place in the reception area of the
provider’s office and at least 15 square feet in size.40 A primary care provider who publishes and
maintains a schedule of charges is exempt from licensure fees for a single renewal of a professional
license and from the continuing education requirements for a single 2-year period.41
The law also requires urgent care centers to publish a schedule of charges for the medical services
offered to patients.42 This applies to any entity that holds itself out to the general public, in any manner,
as a facility or clinic where immediate, but not emergent, care is provided, expressly including offsite
facilities of hospitals or hospital-physician joint ventures; and licensed health care clinics that operate
31 S. 381.026(4)(c), F.S.
32
S. 381.026(4)(c)3., F.S.
33 Id.
34 Id.
35 S. 381.026(4)(c)5., F.S.
36 S. 381.0261, F.S.
37 S. 381.026(2)(d), F.S., defines primary care providers to include allopathic physicians, osteopathic physicians, and nurses w ho
provide medical services that are commonly provided without referral from anothe r health care provider, including family and general
practice, general pediatrics, and general internal medicine.
38 S. 381.026(4)(c)3., F.S.
39 Id.
40 Id.
41 S. 381.026(4)(c)4., F.S.
42 S. 395.107(1), F.S.
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in three or more locations. The schedule requirements for urgent care centers are the same as those
established for primary care providers.43 The schedule must describe each medical service in
language comprehensible to a layperson. This provision prevents a center from using medical or
billing codes, Latin phrases, or technical medical jargon as the only description of each medical
service. An urgent care center that fails to publish and post the schedule of charges is subject to a fine
of not more than $1,000 per day (until the schedule is published and posted). 44
Florida Price Transparency: Health Care Facilities
Under s. 395.301, F.S., a health care facility45 must provide, within 7 days of a written request, a good
faith estimate of reasonably anticipated charges for the facility to treat the patient’s condition. Upon
request, the facility must also provide revisions to the estimate. The estimate may represent the
average charges for that diagnosis related group46 or the average charges for that procedure. The
facility is required to place a notice in the reception area that this information is available. A facility that
fails to provide the estimate as required may be fined $500 for each instance of the facility’s failure to
provide the requested information.
Also pursuant to s. 395.301, F.S., a licensed facility must notify each patient during admission and at
discharge of his or her right to receive an itemized bill upon request. If requested, within 7 days of
discharge or release, the licensed facility must provide an itemized statement, in language
comprehensible to an ordinary layperson, detailing the specific nature of charges or expenses incurred
by the patient. This initial bill must contain a statement of specific services received and expenses
incurred for the items of service, enumerating in detail the constituent components of the services
received within each department of the licensed facility and including unit price data on rates charged
by the licensed facility. The patient or patient’s representative may elect to receive this level of detail in
subsequent billings for services.
Current law also directs these health care facilities to publish information on their websites detailing
the cost of specific health care services and procedures, as well as information on financial assistance
that may be available to prospective patients. The facility must disclose to the consumer that these
averages and ranges of payments are estimates, and that actual charges will be based on the
services actually provided.47 Under s. 408.05, F.S., AHCA contracts with a vendor to collect and
publish this cost information to consumers on an internet site.48 Hospitals and other facilities post a link
to this site - https://pricing.floridahealthfinder.gov/ - to comply with the price transparency
requirements. The cost information is searchable, and based on descriptive bundles of commonly
performed procedures and services. The information must, at a minimum, provide the estimated
average payment received and the estimated range of payment from all non-governmental payers for
the bundles available at the facility.49
The law also establishes the right of a patient to request a personalized estimate on the costs of care
from health care practitioners who provide services in a licensed hospital facility or ambulatory surgical
center.50
Federal Price Transparency Laws and Regulations
43
S. 395.107(2), F.S.
44 S. 395.107(6), F.S.
45 The term "health care facilities" refers to hospitals and ambulatory surgical centers, which are licensed under part I of Chapter 39 5,
F.S.
46 Diagnosis related groups (DRGs) are a patient classification scheme which provides a means of relating the type of patie nts a
hospital treats (i.e., its case mix) to the costs incurred by the hospital. DRGs allow facilities to categorize patients base d on severity of
illness, prognosis, treatment difficulty, need for intervention and resource intensity. For more information , see
https://www.cms.gov/icd10m/version37-fullcode-
cms/fullcode_cms/Design_and_development_of_the_Diagnosis_Related_Group_(DRGs).pdf.
47 S. 395.301, F.S.
48 S. 408.05(3)(c), F.S.
49 Id.
50 S. 456.0575(2), F.S.
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Congress and federal regulatory agencies recently took steps to improve the quantity and quality of
health care cost information available to patients.
Hospital Facility Transparency
On November 15, 2019, the federal Centers for Medicare & Medicaid Services (CMS) finalized
regulations 51 changing payment policies and rates for services furnished to Medicare beneficiaries in
hospital outpatient departments. In doing so, CMS also established new requirements for hospitals to
publish standard charges for a wide range of health care services offered by such facilities.
Specifically, the regulations require hospitals to make public both a machine-readable file of standard
charges and a consumer-friendly presentation of prices for at least 300 shoppable health care
services. The regulations became effective on January 1, 2021.52
The regulations define a shoppable service as one that can be scheduled in advance, effectively
giving patients the opportunity to select the venue in which to receive the service. This is a more
expansive designation of shoppable services than currently exists in Florida law. For each shoppable
service, a hospital must disclose several pricing benchmarks to include:
The gross charge;
The payer-specific negotiated charge;
A de-identified minimum negotiated charge;
A de-identified maximum negotiated charge; and,
The discounted cash price.
This information should provide a patient with both a reasonable point estimate of the charge for a
shoppable service, and also a range in which the actual charge can be expected to fall.
The penalty for facility noncompliance under the federal regulations is a maximum fine of $300 per
day.53 Very early indications suggest that there are varying levels of compliance with the new rules
among hospital facilities.54
Health Insurer Transparency
On October 29, 2020, the federal Departments of Health and Human Services, Labor, and Treasury
finalized regulations 55 imposing new transparency requirements on issuers of individual and group
health insurance plans.
Estimates
Central to the new regulations is a requirement for health plans to provide an estimate of an insured's
cost-sharing liability for covered items or services furnished by a particular provider. Under the final
rule, health insurance plans must disclose cost-sharing estimates at the request of an enrollee and
publicly release negotiated rates for in-network providers, historical out-of-network allowed amounts
and billed charges, and drug pricing information. The rule’s goal is to enable insured patients to
estimate their out-of-pocket costs before receiving health care to encourage shopping and price
competition amongst providers.56
51 Medicare and Medicaid Programs: CY 2020 Hospital Outpatient PPS Policy Changes and Payment Rates and Ambulatory Surgical
Center Payment System Policy Changes and Payment Rates. Price Transparency Requirements for Hospitals to Make Standard
Charges Public, 84 FR 65524 (November 27, 2019)(codified at 45 CFR Part 180).
52 Id.
53 Supra, FN 42.
54 ADVI, “Implementation of Newly Enacted Hospital Price Transparency,” available at
https://advi.com/analysis/Hospital_Transparency_-_ADVI_Summary.pdf.
55 Transparency in Coverage, 85 FR 73158 (November 12, 2020)(codified at 29 CFR Part 54, 29 CFR Part 2590, 45 CFR Part 147, and
45 CFR Part 158).
56 Trump Administration Finalizes Transparency Rule for Health Insurers," Health Affairs Blog, November 1, 2020. Available at
https://www.healthaffairs.org/do/10.1377/hblog20201101.662872/full/ (last accessed on March 23, 2023).
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Each health plan will be required to establish an online shopping tool that will allow insureds to see the
negotiated rate between their provider and their plan, as well as a personalized estimate of their out-
of-pocket cost for 500 of the most shoppable items and services. This requirement is scheduled to
take effect on January 1, 2023. Beginning in 2024, health plans will need to provide personalized cost-
sharing information to patients across the full range of covered health care services. 57
Medical Loss Ratio
The regulations also clarify the treatment of shared savings expenses under medical loss ratio (MLR)
calculations required by the Patient Protection and Affordable Care Act (PPACA). MLR refers to the
percentage of insurance premium payments that are actually spent on medical claims by an insurer. In
general, MLR requirements are intended to promote efficiency among insurers. 58 The PPACA
established minimum MLR requirements for group and individual health insurance plans. 59 Under the
PPACA, large group plans must dedicate at least 85 percent of premium payments to medical claims,
while small group and individual market plans must dedicate at least 80 percent of premium payments
to medical claims.60 Further, the law requires a health plan that does not meet these standards to
provide annual rebates to individuals enrolled in the plan. 61
The regulations finalized in October 2020 specify that expenses by a health plan in direct support of a
shared savings program shall be counted as medical expenditures. 62 Thus, a health plan providing
shared savings to members will receive an equivalent credit towards meeting the MLR standards
established by PPACA. In theory, this policy should provide an additional incentive for insurers who
have not already done so to adopt shared savings programs.
The Federal No Surprises Act
On December 27, 2020, Congress enacted the No Surprises Act as part of the Consolidated
Appropriations Act of 2021.63 The No Surprises Act includes a wide-range of provisions aimed at
protecting patients from surprise billing practices and ensuring that patients have access to accurate
information about the costs of care. Most sections of the Act go into effect on January 1, 2022, and the
Departments of Health and Human Services, Treasury, and Labor are tasked with issuing regulations
and guidance to implement a number of the provisions. 64
Estimates – Facilities
In the realm of price transparency, the No Surprises Act establishes the concept of an “advanced
explanation of benefits” that combines information on charges provided by a hospital facility with
patient-specific cost information supplied by a health insurance plan. The process is triggered when a
patient schedules a service at a hospital facility or requests cost information on a specific set of
services. A hospital facility must share a “good faith estimate” of the total expected charges for
scheduled items or services, including any expected ancillary services, with a health plan (if the patient
is insured) or individual (if the patient is uninsured).65
Estimates – Health Plans
Once the “good faith estimate” has been shared with a patient’s health plan, the plan must then
develop a more detailed and “advanced explanation of benefits”. This personalized cost estimate must
include the following:
57 Supra, FN 51.
58 “Explaining Health Care Reform: Medical Loss Ratio (MLR)”, Henry J Kaiser Family Foundation, February 29, 2012. Available at
https://www.kff.org/health-reform/fact-sheet/explaining-health-care-reform-medical-loss-ratio-mlr/ (last accessed on March 23, 2023).
59 PPACA s. 1001; 42 U.S.C. 300gg-18.
60 Supra note 51.
61 Id.
62 45 CFR Part 158.
63 PL 116-260. The No Surprises Act is found in Division BB of the Act.
64 Id.
65 PL 116-260, Division BB, Section 112.
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An indication of whether the facility participates in the patient’s health plan network. If the facility
is non-participating, information on how the patient can receive services from a participating
provider;
The good-faith estimate prepared by the hospital facility based on billing/diagnostic codes;
A good-faith estimate of the amount to be covered by the health plan;
A good-faith estimate of the amount of the patient’s out-of-pocket costs;
A good-faith estimate of the accrued amounts already met by the patient towards any deductible
or out-of-pocket maximum under the patient’s health plan;
A disclaimer indicating whether the services scheduled are subject to medical management
techniques (i.e., medical necessity determinations, prior authorization, step therapy, etc.); and,
A disclaimer that the information provided is only an estimate of costs and may be subject to
change.66
Furthermore, the Act directs the Secretary of Health and Human Services (HHS) to establish by
January 1, 2022, a “patient-provider dispute resolution process” to resolve any disputes concerning
bills received by uninsured individuals that substantially differ from a provider’s good faith estimate
provided prior to the service being rendered.67
The new requirements placed on hospitals and health plans by the No Surprises Act are cumulatively
intended to provide patients with increased certainty about the total and out-of-pocket costs associated
with health care services. In turn, patients may be more equipped to seek out cost-effective care and
avoid unforeseen costs that can lead to
financial strain.
Many hospitals do not comply with the federal transparency requirement. A 2021 review of more than
3,500 hospitals found that 55 percent of hospitals were not compliant with the rule and had not posted
price information for commercial plans or had not posted any prices at all. 68 Further, an August 2022
review of 2,000 hospitals found that 16 percent with all transparency requirements. 69 Nearly 84 percent
of hospitals failed to post machine-readable files containing standard charges, and roughly 78 percent
of hospitals did not provide a consumer-friendly shoppable services display.70 Another review of more
than 6,400 hospitals showed wide-spread non-compliance with the federal transparency rule- more
than 63 percent of hospitals are not complying.71 According to that review, only 38 percent of Florida
hospitals are in compliance.72
Medical Debt
Medical costs can result in overwhelming debts to patients, and in some cases, bankruptcy.
Nationwide, over 100 million have some form of medical debt. 73 A 2007 study suggested that illness
and medical bills contributed to 62.1 percent of all personal bankruptcies filed in the U.S. during that
year.74 A more recent analysis, which considered only the impact of hospital charges, found that 4
66
PL 116-260, Division BB, Section 111.
67 Supra note 59.
68 John Xuefeng Jiang, et al., Factors associated with compliance to the hospital price transparency final rule: A national land scape
study, Journal of General Internal Medicine (2021), available at https://link.springer.com/article/10.1007/s11606-021-07237-y (last
viewed on March 10, 2023).
69
Patients’ Rights Advocates, Third semi-annual hospital transparency compliance report, 2022, available at
https://www,patientrightsadvocates.org/august-semi-annual-compliance-report-2022.
70 Id.
71 Foundation for Government Accountability, How America’s Hospitals Are Hiding the Cost of Health Care, pg. 3, August 2022,
available at https://www.TheFGA.org/paper/americas -hospitals-are-hiding-the-cost-of-health-care. (last viewed on March 10, 2023).
Only two hospitals to date have been fined for noncompliance with the transparency rule, both of which are in Georgia’s North side
Hospital System.
72 Id., pg. 4.
73 Kaiser Health News, Diagnosis: Deb t – 100 Million People in America Are Saddled with Health Care Deb t, June 16, 2022, available
at https://khn.org/news/article/diagnosis-debt-investigation-100-million-americans-hidden-medical-debt/ (last viewed on March 23,
2023).
74 David U. Himmelstein, et al. “Medical Bankruptcy in the United States, 2007: Results of a National Study.” American Journal of
Medicine 2009; 122: 741-6. Available at https://www.amjmed.com/article/S0002-9343(09)00404-5/abstract.
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percent of U.S. bankruptcies among non-elderly adults resulted from hospitalizations.75 Four in ten
U.S. adults have some form of health care debt.76 About half of adults – including three in ten who do
not currently have health care debt – are vulnerable to falling in the debt, saying they would be unable
to pay a $500 unexpected medical bill without borrowing money.77 While about a third of adults with
health care debt owe less than $1,000, even small amounts of debt can have significant financial
consequences for some.78 Though a third of those with current debt expect to pay it off within a year
and about a quarter expect to pay it within one to two years, nearly one in five adults with health care
debt think they will never be able to pay it off.79
Even when medical costs do not result in personal bankruptcy, they often weigh heavily on the
financial health of patients and their families. According to the Kaiser Family Foundation, about a
quarter of U.S. adults ages 18-64 say they or someone in their household had problems paying or an
inability to pay medical bills in the past 12 months. 80 About three in ten survey respondents reported
medical debt of $5,000 or more, with 13 percent of respondents indicating medical debt in excess of
$10,000. Even patients with lower amounts of medical debt reported that the outstanding bills led to
financial distress, in light of other financial commitments and/or limited income. 81
Among those who reported problems paying medical bills, 66 percent said the bills were the result of a
one-time or short-term medical expense such as a hospital stay or an accident, while 33 percent cited
bills for treatment of chronic conditions that have accumulated over time. Respondents to the Kaiser
75 Carlos Dobkin, et al. “Myth and Measurement: The Case of Medical Bankruptcies.” New England Journal of Medicine 2018;
378:1076-1078. Available at https://www.nejm.org/doi/full/10.1056/NEJMp1716604.
76 Lopes, L., Kearney, A., et al, Health Care Deb t in the U.S.: The Broad Consequences of Medical and Dental Bills, June 16, 2022
(using results from the Kaiser Family Foundation Health Care Debt Survey), available at https://www.kff.org/health-costs/report/kff-
health-care-debt-survey/ (last viewed on March 12, 2023).
77 Id.
78 Id.
79 Id.
80 The Henry J. Kaiser Family Foundation, “The Burden of Medical Deb t: Results from the Kaiser Family Foundation/New York Times
Medical Bills Survey.” January 5, 2016. Available at https://www.kff.org/health-costs/report/the-burden-of-medical-debt-results-from-the-
kaiser-family-foundationnew-york-times-medical-bills-survey/.
81 Id.
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survey reported a wide range of illnesses and injuries that led to an accumulation of medical debt. The
largest share (36 percent) named a specific disease, symptom, or condition like heart disease or
gastrointestinal problems, followed by issues related to chronic pain or injuries (16 percent), accidents
and broken bones (15 percent), surgery (10 percent), dental issues (10 percent), and infections like
pneumonia and flu (9 percent).82 The following illustration provides additional detail on the type of
medical services that led to an accumulation of medical debt. 83
More than two thirds of hospitals sue or take other legal action against patients with outstanding bills.
Nearly 25 percent sell patient medical debt to collection agencies, who in turn can pursue patients for
years to collect on unpaid bills. Further, 1 in 5 providers deny nonemergency care to people with
outstanding medical debt.
Recognizing the inherent difficulties associated with medical debt, the major credit rating companies
recently agreed to exclude from an individual’s credit report medical debts that have been paid off and
unpaid medical debts less than $500.
Personal Credit Rating
When a person first takes out a line of credit as an individual—a first credit card or a loan to pay for
college, for example—this begins a personal credit history and the process of building a personal
credit score. This score is linked to a person’s Social Security Number.
From then on, the score reflects one’s personal financial history. If a person always pays bills on time,
does not use too much of the available credit at once, and avoids negative information like
foreclosures and charge-offs, the person will develop a good personal credit score, also known as a
FICO score. If, instead, one carries a balance on lines of credit, fails to develop a diverse mix of credit
sources—different credit cards, an automobile loan, and a mortgage, for example—and accrues many
“hard inquiries” on your credit score (which occurs when upon application for a new source of credit),
the FICO score will be low. Personal credit scores generally range 350-800 with 800 being a “perfect”
score.
Effective July 1, 2022, the three largest credit reporting agencies, Equifax, Experian, and TransUnion,
starting removing medical debt remarks from millions of credit reports, which will eliminate an
estimated 70 percent of negative medical debt remarks. Further actions include:
Paid medical debt that was in collections will no longer be included on consumer credit reports.
Unpaid medical debt that is currently in collections for one year will be reported on credit
reports. This is an increase from six months that was enacted in 2017.
Starting in 2023, medical debt in collections under $500 will not appear on credit reports.
In 2018-2020, more than a quarter of the nation’s largest hospitals and health systems pursued nearly
39,000 legal actions regarding consumer medical debt.84
Medical Debt Collection Process
Current law provides a court process for the collection of lawful debts, including medical debts. A
creditor may sue a debtor and, if the creditor prevails, the creditor may receive a final judgment
awarding monetary damages. If the debtor does not voluntarily pay the judgment, the creditor has
several legal means to collect on the debt, including:
82 Id.
83 Id., figure 4.
84 Using data from Johns Hopkins University, study authors analyzed the top 100 hospitals in the U.S. (by revenue) to
measure debt collection methods and frequency, average charges markups and billing scores, and compare that data to
safety grades and charity care ratings, by hospital type (government, nonprofit and for-profit). See, “How America’s top
hospitals hound patients with predatory billing”, July 2021, available at https://www.axios.com/hospital-billing (last viewed
on March 26, 2023). Twelve Florida hospitals were included in the analysis, with a wide range of scores in each category.
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Wage garnishment.
Garnishment of money in a bank account.
Directing the sheriff to seize assets, sell them, and give the proceeds to the creditor.
In order to protect debtors from being destitute, current law provides that certain property is exempt
from being taken by a creditor. The Florida Constitution provides that the debtor's homestead and
$1,000 of personal property is exempt.85 Statutory law provides numerous categories of exempt
property, and federal statutory law also provides certain exemptions that apply in all of the states.86
In addition to the protection from creditors contained in the Florida Constitution, chapter 222, F.S.,
protects other personal property from certain claims of creditors and legal process: garnishment of
wages for a head of family;87 proceeds from life insurance policies;88 wages or unemployment
compensation payments due certain deceased employees; 89 disability income benefits;90 assets in
qualified tuition programs; medical savings accounts; Coverdell education savings accounts; hurricane
savings accounts;91 $1,000 interest in a motor vehicle; professionally prescribed health aids; certain
refunds or credits from financial institutions; and $4,000 interest in personal property, if the debtor
does not claim or receive the benefits of a homestead exemption under the State Constitution. 92
Bankruptcy is a means by which a person's assets are liquidated in order to pay the person's debts
under court supervision. The United States Constitution gives Congress the right to uniformly govern
bankruptcy law.93 Bankruptcy courts are operated by the federal government. A debtor (the bankrupt
person) is not required to give up all of his or her assets in bankruptcy. Certain property is deemed
"exempt" from the bankruptcy case, and may be kept by the debtor without being subject to creditor
claims. The Bankruptcy Code provides for exempt property in a bankruptcy case. 94 In general, a
debtor may choose to utilize the exempt property listing in state law or the exempt property of the
Bankruptcy Code. However, federal law allows a state to opt-out of the federal law and thereby insist
that debtors only utilize state law exemptions.95 Florida, like most states, has made the opt-out election
to prohibit the use of the federal exemptions and require that debtors may only use state law
exemptions.96
Statutes of Limitations
A statute of limitations bars a lawsuit’s filing after a certain amount of time elapses following an
injury.97 This time period typically begins to run when a cause of action accrues (that is, on the date of
the injury), but may also begin to run on the date the injury is discovered or on which it would have
been discovered with reasonable efforts.98 In other words, a statute of limitations bars the available
civil remedy if a lawsuit is not timely filed after an injury.
Chapter 95, F.S., contains the bulk of Florida’s statutes of limitations. Specifically, s. 95.11, F.S.,
details a variety of statutes of limitation for legal actions other than for recovery of real property. Some
of the limitations require legal actions to be commenced as follows:
WITHIN TWENTY YEARS.—An action on a judgment or decree of a court of record in this
state.99
85 Art. X, s. 4(a), Fla. Const.
86 For example, the federal ERISA law provides that most retirement plans are exem pt from creditor claims.
87
S. 222.11, F.S.
88 S. 222.13, F.S.
89 S. 222.15, F.S.
90 S. 222.18, F.S.
91 S. 222.22, F.S.
92 S. 222.25, F.S.
93 Art. 1, s. 8, cl. 4, U.S. Const.
94 11 U.S.C. s. 522.
95 11 U.S.C. s. 522(b).
96 S. 222.20, F.S.
97 Legal Information Institute, Statute of Limitations, https://www.law.cornell.edu/wex/statute_of_limitations (last visited March 23, 2023).
98 Id.
99 S. 95.11(1), F.S.
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WITHIN FIVE YEARS.—
o An action on a judgment or decree of any court, not of record, of this state or any court
of the United States, any other state or territory in the United States, or a foreign
country.
o A legal or equitable action on a contract, obligation, or liability founded on a written
instrument, except for an action to enforce a claim against a payment bond, which shall
be governed by the applicable provisions of paragraph (5)(e), s. 255.05(10),
s. 337.18(1), or s. 713.23(1)(e), and except for an action for a deficiency judgment
governed by paragraph (5)(h).
o An action to foreclose a mortgage.
o An action alleging a willful violation of s 448.110.
o Notwithstanding paragraph (b), an action for breach of a property insurance contract,
with the period running from the date of loss.100
WITHIN FOUR YEARS.—
o An action founded on negligence.
o An action relating to the determination of paternity, with the time running from the date
the child reaches the age of majority.
o An action founded on the design, planning, or construction of an improvement to real
property, with the time running from the date of actual possession by the owner, the
date of the issuance of a certificate of occupancy, the date of abandonment of
construction if not completed, or the date of completion of the contract or termination of
the contract between the professional engineer, registered architect, or licensed
contractor and his or her employer, whichever date is latest, with some exceptions.
o An action to recover public money or property held by a public officer or employee, or
former public officer or employee, and obtained during, or as a result of, his or her
public office or employment.
o An action for injury to a person founded on the design, manufacture, distribution, or sale
of personal property that is not permanently incorporated in an improvement to real
property, including fixtures.
o An action founded on a statutory liability.
o An action for trespass on real property.
o An action for taking, detaining, or injuring personal property.
o An action to recover specific personal property.
o A legal or equitable action founded on fraud.
o A legal or equitable action on a contract, obligation, or liability not founded on a written
instrument, including an action for the sale and delivery of goods, wares, and
merchandise, and on store accounts.
o An action to rescind a contract.
o An action for money paid to any governmental authority by mistake or inadvertence.
o An action for a statutory penalty or forfeiture.
o An action for assault, battery, false arrest, malicious prosecution, malicious
interference, false imprisonment, or any other intentional tort, except as provided in
subsections (4), (5), and (7).
o Any action not specifically provided for in these statutes.
o An action alleging a violation, other than a willful violation, of s. 448.110.101
WITHIN TWO YEARS.—
o An action for professional malpractice, other than medical malpractice, whether founded
on contract or tort; provided that the period of limitations shall run from the time the
cause of action is discovered or should have been discovered with the exercise of due
diligence.
o An action for medical malpractice shall be commenced within 2 years from the time the
incident giving rise to the action occurred or within 2 years from the time the incident is
discovered, or should have been discovered with the exercise of due diligence;
however, in no event shall the action be commenced later than 4 years from the date of
100 S. 95.11(2), F.S.
101 S. 95.11(3), F.S.
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the incident or occurrence out of which the cause of action accrued, except that this 4-
year period shall not bar an action brought on behalf of a minor on or before the child’s
eighth birthday, providing for an extension in certain circumstances.
o An action to recover wages or overtime or damages or penalties concerning payment of
wages and overtime.
o An action for wrongful death.
o An action founded upon a violation of any provision of chapter 517, with the period
running from the time the facts giving rise to the cause of action were discovered or
should have been discovered with the exercise of due diligence, but not more than 5
years from the date such violation occurred.
o An action for personal injury caused by contact with or exposure to phenoxy herbicides
while serving either as a civilian or as a member of the Armed Forces of the United
States during the period January 1, 1962, through May 7, 1975; the period of limitations
shall run from the time the cause of action is discovered or should have been
discovered with the exercise of due diligence.
o An action for libel or slander.102
WITHIN ONE YEAR.—
o An action for specific performance of a contract.
o An action to enforce an equitable lien arising from the furnishing of labor, services, or
material for the improvement of real property.
o An action to enforce rights under the Uniform Commercial Code—Letters of Credit,
chapter 675.
o An action against any guaranty association and its insured, with the period running from
the date of the deadline for filing claims in the order of liquidation.
o Except for actions governed by s. 255.05(10), s. 337.18(1), or s. 713.23(1)(e), an action
to enforce any claim against a payment bond on which the principal is a contractor,
subcontractor, or sub-subcontractor as defined in s. 713.01, for private work as well as
public work, from the last furnishing of labor, services, or materials or from the last
furnishing of labor, services, or materials by the contractor if the contractor is the
principal on a bond on the same construction project, whichever is later.
o Except for actions described in subsection (8), a petition for extraordinary writ, other
than a petition challenging a criminal conviction, filed by or on behalf of a prisoner as
defined in s. 57.085.
o Except for actions described in subsection (8), an action brought by or on behalf of a
prisoner, as defined in s. 57.085, relating to the conditions of the prisoner’s
confinement.
o An action to enforce a claim of a deficiency related to a note secured by a mortgage
against a residential property that is a one-family to four-family dwelling unit. The
limitations period shall commence on the day after the certificate is issued by the clerk
of court or the day after the mortgagee accepts a deed in lieu of foreclosure. 103
Effect of Proposed Changes
CS/HB 1413 increases patient access to health care cost information, and offers a measure of
protection from unreasonable and burdensome medical debt. The various provisions apply to hospitals,
ambulatory surgical centers, health insurers, and HMOs. The bill brings provisions from recent federal
law and regulation into the Florida Statutes; in doing so, the bill requires compliance by facilities and
insurers as a condition of state licensure, thus ensuring that these provisions will be fully adopted and
adequately enforced in Florida.104
Facility Price Transparency
Facility Billing Estimates
102 S. 95.11(4), F.S.
103 S. 95.11(5), F.S.
104 SS. 395.003, 395.301, 408.802, 624.401, and 641.22, F.S.
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The bill requires that all patients receive cost-of-care information prior to receiving scheduled,
nonemergency treatment in hospitals and ambulatory surgical centers, and from physicians providing
services in those facilities.
At present, licensed facilities are required to provide a customized estimate of “reasonably anticipated
charges” to a patient for treatment of the patient’s specific condition, upon request of the patient. The
bill makes these personalized estimates mandatory, rather than dependent on patient requests. A
facility must submit the estimate of charges to a patient’s health plan at least 3 business days before a
service is to be furnished, according to the following schedule:
In the case of a service scheduled less than 10 business days in advance, no later than 1
business day after the service is scheduled;
In the case of a service scheduled 10 or more business days in advance, no later than 3
business days after a service is scheduled.
By requiring facilities to provide a good-faith estimate of charges to each patient in advance of
treatment, the bill mirrors the requirements of the federal No Surprises Act. Compliance with the Act
was required by January 1, 2022.
Shoppable Services
The bill requires each licensed hospital and ambulatory surgical center to post a consumer-friendly list
of standard charges for at least 300 shoppable health care services on a facility website. A facility that
provides less than 300 distinct services will be required to post standard charges for each service it
does provide.
The bill requires facilities to post pricing information for shoppable services in accordance with the
definition of “standard charges” established in federal rule. 105 This information extends beyond the
traditional concept of charges to include negotiated and actual prices paid for selected services. For
each shoppable service, a hospital must disclose the following pricing benchmarks:
The gross charge;
The payer-specific negotiated charge;
A de-identified minimum negotiated charge;
A de-identified maximum negotiated charge; and,
The discounted cash price.
This bill is intended to mirror the shoppable services requirement included in the hospital facility
transparency regulations finalized by the CMS in 2019. The bill requires facilities to disclose the
relevant cost information as a condition of state licensure, which should result in uniform compliance
among facilities.
Facility Medical Debt Collection
The bill prohibits hospitals and ASCs from engaging in any “extraordinary collection actions” against a
patient prior to determining whether that patient is eligible for financial assistance, before providing an
itemized bill, during an ongoing grievance process, prior to billing any applicable insurance coverage,
for 30 days after notifying a patient in writing that a collections action will commence, and while the
patient is negotiating in good faith the final amount of the bill or is complying with the terms of a
payment plan with the facility. For purposes of the provision, “extraordinary collection action” means
any action that requires a legal or judicial process, including:
Placing a lien on an individual’s property;
Foreclosing on an individual’s real property;
105 Supra, FN 47.
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Attaching or seizing an individual’s bank account or any other personal property;
Commencing a civil action against an individual;
Causing an individual’s arrest; or,
Garnishing an individual’s wages.
The bill also establishes a new set of debt collection exemptions in chapter 222, F.S. that apply
explicitly to debt incurred as a result of medical services provided in hospitals, ambulatory surgical
centers, or urgent care centers. Under current law, this type of medical debt is subject to the uniform
exemptions that apply to all types of debt and are described above. The bill increases the ceiling on the
debt collection exemptions, when the debt results from services provided in a hospital facility or
ambulatory surgical center, as follows:
To $10,000 interest in a single motor vehicle (versus the current law exemption of $1,000);
To $10,000 interest in personal property, provided that a debtor does not claim the homestead
exemption under s. 4, Art. X of the state constitution (versus the current law exemption of
$4,000).
The bill also requires each hospital and ASC to establish an internal grievance process allowing a
patient to dispute any charges that appear on an itemized statement or bill. When a patient initiates a
grievance, the facility must then provide an initial response to that patient within 7 business days.
Lastly, the bill creates a three-year statute of limitations for any legal action related to medical debt for
services rendered by a facility licensed under chapter 395, F.S., such as hospitals, ambulatory surgical
centers, and urgent care centers. The statute of limitations begins running on the date that the facility
refers the debt to a third-party collections entity.
Insurer Price Transparency
Shared Savings Programs
The bill establishes an accounting standard to remove a barrier to shared savings incentive programs.
It specifies that insurer shared savings payments to patients shall be counted as medical expenses for
rate development and rate filing purposes.106 This change aligns Florida law with the federal regulations
that became final in 2020.107
Advanced Explanation of Benefits
Effective July 1, 2022, the bill requires health plans to issue an advance explanation of benefits
statement when a covered patient schedules a service in a hospital or ambulatory surgical center. This
requirement builds on the facility charges estimate provision in the bill. Once a facility notifies a health
plan that a patient has scheduled a medical service, the health plan must prepare a personalized
estimate of costs for the patient in accordance with the federal No Surprises Act. A health plan must
provide an advanced explanation of benefits to the patient according to the following schedule:
In the case of a service scheduled less than 10 business days in advance, no later than 1
business day after receiving the estimate of charges from the facility;
In the case of a service scheduled 10 or more business days in advance, no later than 3
business days after receiving the estimate of charges from the facility.
Health insurers and HMOs were required comply with the federal Act on January 1, 2022.
The bill provides an effective date of October 1, 2023.
106 Current law indicates that a shared savings incentive offered by a health plan is “not an administrative expense for r ate development
or rate filing purposes,” but does not affirmatively categorize the expense. SS. 627.6387, 627.6648, and 641.31076, F.S.
107 Supra, FN 51.
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B. SECTION DIRECTORY:
Section 1: Amends s. 95.11, F.S., relating to limitations other than for the recovery of real property.
Section 2: Creates s. 222.26, F.S., relating to additional exemptions from legal process concerning
medical debt.
Section 3: Amends s. 395.301, F.S., relating to price transparency; itemized patient statement or bill;
patient admission status notification.
Section 4: Creates s. 395.3011, F.S., relating to billing and collection activities.
Section 5: Creates s. 627.445, F.S., relating to advanced explanation of benefits.
Section 6: Amends s. 627.6387, F.S., relating to shared savings incentive program.
Section 7: Amends s. 627.6648, F.S., relating to shared savings incentive program.
Section 8: Amends s. 641.31076, F.S., relating to shared savings incentive program.
Section 9: Amends s. 475.01, F.S., relating to definitions.
Section 10: Amends s. 475.611, F.S., relating to definitions.
Section 11: Amends s. 517.191, F.S., relating to injunction to restrain violations; civil penalties;
enforcement by the Attorney General.
Section 12: Amends s. 768.28, F.S., relating to waiver of sovereign immunity in tort actions; recovery
limits; civil liability for damages caused during a riot; limitation on attorney fees; statute of
limitations; exclusions; indemnification; risk management programs.
Section 13: Provides an effective date of October 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may increase costs for facilities licensed under ch. 395, F.S., by requiring them to issue cost
estimates for all non-emergency patients, but only if the facilities are out of compliance with the current
federal requirement to provide these estimates.
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Facilities may forego revenues due to the bill’s limits on the use of extraordinary collection activities;
however, some facilities may already be providing similar due process for patients, such that the bill will
have little impact on them.
The bill may have a negative, but indeterminate, fiscal impact on health insurers and HMOs, due to the
costs of producing advanced explanations of benefits for insureds and subscribers, triggered by the
estimates provided by facilities, but only if these health plans are out of compliance with the current
federal requirement to provide these to subscribers.
Additionally, the bill’s increased dollar limit on personal property exemptions under ch. 222, F.S., may
reduce revenues for medical service providers or their collection agents.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to impact municipalities or counties.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
AHCA has sufficient rulemaking authority to implement the bill provisions.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 28, 2023, the Healthcare Regulation Subcommittee adopted an amendment and reported the bill
favorably as a committee substitute. The amendment changed the effective date from July 1, 2023, to
October 1, 2023.
The bill was reported favorably as amended. The analysis is drafted to the committee substitute as passed
by the Healthcare Regulation Subcommittee.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 1413 2023
1 A bill to be entitled
2 An act relating to health care expenses; amending s.
3 95.11, F.S.; establishing a 3-year statute of
4 limitations for an action to collect medical debt for
5 services rendered by a health care provider or
6 facility; creating s. 222.26, F.S.; providing
7 additional personal property exemptions from legal
8 process for medical debts resulting from services
9 provided in certain licensed facilities; amending s.
10 395.301, F.S.; requiring a licensed facility to post
11 on its website a consumer-friendly list of standard
12 charges for a minimum number of shoppable health care
13 services; providing definitions; requiring a licensed
14 facility to provide an estimate to a patient or
15 prospective patient and the patient's health insurer
16 within specified timeframes; requiring a licensed
17 facility to establish an internal grievance process
18 for patients to dispute charges; requiring a facility
19 to make available information necessary for initiating
20 a grievance; requiring a facility to respond to a
21 patient grievance within a specified timeframe;
22 creating s. 395.3011, F.S.; prohibiting certain
23 collection activities by a licensed facility; creating
24 s. 627.445, F.S.; providing a definition; requiring
25 each health insurer to provide an insured with an
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26 advanced explanation of benefits after receiving a
27 patient estimate from a facility for scheduled
28 services; providing requirements for the advanced
29 explanation of benefits; amending ss. 627.6387,
30 627.6648, and 641.31076, F.S.; providing that a shared
31 savings incentive offered by a health insurer or
32 health maintenance organization constitutes a medical
33 expense for rate development and rate filing purposes;
34 amending ss. 475.01, 475.611, 517.191, and 768.28,
35 F.S.; conforming cross-references; providing an
36 effective date.
37
38 Be It Enacted by the Legislature of the State of Florida:
39
40 Section 1. Subsection (4) of section 95.11, Florida
41 Statutes, is renumbered as subsection (5), and a new subsection
42 (4) is added to that section, to read:
43 95.11 Limitations other than for the recovery of real
44 property.—Actions other than for recovery of real property shall
45 be commenced as follows:
46 (4) WITHIN THREE YEARS.—An action to collect medical debt
47 for services rendered by a facility licensed under chapter 395,
48 provided that the period of limitations shall run from the date
49 on which the facility refers the medical debt to a third party
50 for collection.
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51 Section 2. Section 222.26, Florida Statutes, is created to
52 read:
53 222.26 Additional exemptions from legal process concerning
54 medical debt.—If a debt is owed for medical services provided by
55 a facility licensed under chapter 395, the following property is
56 exempt from attachment, garnishment, or other legal process in
57 an action on such debt:
58 (1) A debtor's interest, not to exceed $10,000 in value,
59 in a single motor vehicle as defined in s. 320.01(1).
60 (2) A debtor's interest in personal property, not to
61 exceed $10,000 in value, if the debtor does not claim or receive
62 the benefits of a homestead exemption under s. 4, Art. X of the
63 State Constitution.
64 Section 3. Paragraphs (b) through (d) of subsection (1) of
65 section 395.301, Florida Statutes, are redesignated as
66 paragraphs (c) through (e), respectively, subsection (6) is
67 renumbered as subsection (7), present paragraph (b) of
68 subsection (1) is amended, and a new paragraph (b) is added to
69 subsection (1) and a new subsection (6) is added to that
70 section, to read:
71 395.301 Price transparency; itemized patient statement or
72 bill; patient admission status notification.—
73 (1) A facility licensed under this chapter shall provide
74 timely and accurate financial information and quality of service
75 measures to patients and prospective patients of the facility,
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76 or to patients' survivors or legal guardians, as appropriate.
77 Such information shall be provided in accordance with this
78 section and rules adopted by the agency pursuant to this chapter
79 and s. 408.05. Licensed facilities operating exclusively as
80 state facilities are exempt from this subsection.
81 (b) Each licensed facility shall post on its website a
82 consumer-friendly list of standard charges for at least 300
83 shoppable health care services. If a facility provides fewer
84 than 300 distinct shoppable health care services, it shall make
85 available on its website the standard charges for each service
86 it provides. As used in this paragraph, the term:
87 1. "Shoppable health care service" means a service that
88 can be scheduled by a healthcare consumer in advance. The term
89 includes, but is not limited to, the services described in s.
90 627.6387(2)(e) and any services defined in regulations or
91 guidance issued by the United States Department of Health and
92 Human Services.
93 2. "Standard charge" has the same meaning as that term is
94 defined in regulations or guidance issued by the United States
95 Department of Health and Human Services for purposes of hospital
96 price transparency.
97 (c)(b)1. Upon request, and Before providing any
98 nonemergency medical services, each licensed facility shall
99 provide in writing or by electronic means a good faith estimate
100 of reasonably anticipated charges by the facility for the
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101 treatment of a the patient's or prospective patient's specific
102 condition. Such estimate must be provided to the patient or
103 prospective patient upon scheduling a medical service. The
104 facility must provide the estimate to the patient or prospective
105 patient within 7 business days after the receipt of the request
106 and is not required to adjust the estimate for any potential
107 insurance coverage. The facility must provide the estimate to
108 the patient's health insurer, as defined in s. 627.445(1), and
109 the patient at least 3 business days before a service is to be
110 furnished, but no later than 1 business day after the service is
111 scheduled or, in the case of a service scheduled at least 10
112 business days in advance, no later than 3 business days after
113 the service is scheduled. The estimate may be based on the
114 descriptive service bundles developed by the agency under s.
115 408.05(3)(c) unless the patient or prospective patient requests
116 a more personalized and specific estimate that accounts for the
117 specific condition and characteristics of the patient or
118 prospective patient. The facility shall inform the patient or
119 prospective patient that he or she may contact his or her health
120 insurer or health maintenance organization for additional
121 information concerning cost-sharing responsibilities.
122 2. In the estimate, the facility shall provide to the
123 patient or prospective patient information on the facility's
124 financial assistance policy, including the application process,
125 payment plans, and discounts and the facility's charity care
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126 policy and collection procedures.
127 3. The estimate shall clearly identify any facility fees
128 and, if applicable, include a statement notifying the patient or
129 prospective patient that a facility fee is included in the
130 estimate, the purpose of the fee, and that the patient may pay
131 less for the procedure or service at another facility or in
132 another health care setting.
133 4. Upon request, The facility shall notify the patient or
134 prospective patient of any revision to the estimate.
135 5. In the estimate, the facility must notify the patient
136 or prospective patient that services may be provided in the
137 health care facility by the facility as well as by other health
138 care providers that may separately bill the patient, if
139 applicable.
140 6. The facility shall take action to educate the public
141 that such estimates are available upon request.
142 6.7. Failure to timely provide the estimate pursuant to
143 this paragraph shall result in a daily fine of $1,000 until the
144 estimate is provided to the patient or prospective patient and
145 the health insurer. The total fine per patient estimate may not
146 exceed $10,000.
147
148 The provision of an estimate does not preclude the actual
149 charges from exceeding the estimate.
150 (6) Each facility shall establish an internal process for
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151 reviewing and responding to grievances from patients. Such
152 process must allow patients to dispute charges that appear on
153 the patient's itemized statement or bill. The facility shall
154 prominently post on its website and indicate in bold print on
155 each itemized statement or bill the instructions for initiating
156 a grievance and the direct contact information required to
157 initiate the grievance process. The facility must provide an
158 initial response to a patient grievance within 7 business days
159 after the patient formally files a grievance disputing all or a
160 portion of an itemized statement or bill.
161 Section 4. Section 395.3011, Florida Statutes, is created
162 to read:
163 395.3011 Billing and collection activities.—
164 (1) As used in this section, the term "extraordinary
165 collection action" means any of the following actions taken by a
166 licensed facility against an individual in relation to obtaining
167 payment of a bill for care covered under the facility's
168 financial assistance policy:
169 (a) Selling the individual's debt to another party.
170 (b) Reporting adverse information about the individual to
171 consumer credit reporting agencies or credit bureaus.
172 (c) Deferring, denying, or requiring a payment before
173 providing medically necessary care because of the individual's
174 nonpayment of one or more bills for previously provided care
175 covered under the facility's financial assistance policy.
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176 (d) Actions that require a legal or judicial process,
177 including, but not limited to:
178 1. Placing a lien on the individual's property;
179 2. Foreclosing on the individual's real property;
180 3. Attaching or seizing the individual's bank account or
181 any other personal property;
182 4. Commencing a civil action against the individual;
183 5. Causing the individual's arrest; or
184 6. Garnishing the individual's wages.
185 (2) A facility may not engage in an extraordinary
186 collection action against an individual to obtain payment for
187 services:
188 (a) Before the facility has made reasonable efforts to
189 determine whether the individual is eligible for assistance
190 under its financial assistance policy for the care provided and,
191 if eligible, before a decision is made by the facility on the
192 patient's application for such financial assistance.
193 (b) Before the facility has provided the individual with
194 an itemized statement or bill.
195 (c) During an ongoing grievance process as described in s.
196 395.301(6) or an ongoing appeal of a claim adjudication.
197 (d) Before billing any applicable insurer and allowing the
198 insurer to adjudicate a claim.
199 (e) For 30 days after notifying the patient in writing, by
200 certified mail, or by other traceable delivery method, that a
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201 collection action will commence absent additional action by the
202 patient.
203 (f) While the individual:
204 1. Negotiates in good faith the final amount of a bill for
205 services rendered; or
206 2. Complies with all terms of a payment plan with the
207 facility.
208 Section 5. Section 627.445, Florida Statutes, is created
209 to read:
210 627.445 Advanced explanation of benefits.—
211 (1) As used in this section, the term "health insurer"
212 means a health insurer issuing individual or group coverage or a
213 health maintenance organization issuing coverage through an
214 individual or a group contract.
215 (2) Each health insurer shall prepare an advanced
216 explanation of benefits upon receiving a patient estimate from a
217 facility pursuant to s. 395.301(1). The health insurer must
218 provide the advanced explanation of benefits to the insured no
219 later than 1 business day after receiving the patient estimate
220 from the facility or, in the case of a service scheduled at
221 least 10 business days in advance, no later than 3 business days
222 after receiving such estimate.
223 (3) At a minimum, the advanced explanation of benefits
224 must include detailed coverage and cost-sharing information
225 pursuant to the No Surprises Act, Title I of Division BB, Pub.
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226 L. No. 116-260.
227 Section 6. Paragraph (a) of subsection (4) of section
228 627.6387, Florida Statutes, is amended to read:
229 627.6387 Shared savings incentive program.—
230 (4)(a) A shared savings incentive offered by a health
231 insurer in accordance with this section:
232 1. Is not an administrative expense for rate development
233 or rate filing purposes and shall be counted as a medical
234 expense for such purposes.
235 2. Does not constitute an unfair method of competition or
236 an unfair or deceptive act or practice under s. 626.9541 and is
237 presumed to be appropriate unless credible data clearly
238 demonstrates otherwise.
239 Section 7. Paragraph (a) of subsection (4) of section
240 627.6648, Florida Statutes, is amended to read:
241 627.6648 Shared savings incentive program.—
242 (4)(a) A shared savings incentive offered by a health
243 insurer in accordance with this section:
244 1. Is not an administrative expense for rate development
245 or rate filing purposes and shall be counted as a medical
246 expense for such purposes.
247 2. Does not constitute an unfair method of competition or
248 an unfair or deceptive act or practice under s. 626.9541 and is
249 presumed to be appropriate unless credible data clearly
250 demonstrates otherwise.
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251 Section 8. Paragraph (a) of subsection (4) of section
252 641.31076, Florida Statutes, is amended to read:
253 641.31076 Shared savings incentive program.—
254 (4) A shared savings incentive offered by a health
255 maintenance organization in accordance with this section:
256 (a) Is not an administrative expense for rate development
257 or rate filing purposes and shall be counted as a medical
258 expense for such purposes.
259 Section 9. Paragraphs (a) and (j) of subsection (1) of
260 section 475.01, Florida Statutes, are amended to read:
261 475.01 Definitions.—
262 (1) As used in this part:
263 (a) "Broker" means a person who, for another, and for a
264 compensation or valuable consideration directly or indirectly
265 paid or promised, expressly or impliedly, or with an intent to
266 collect or receive a compensation or valuable consideration
267 therefor, appraises, auctions, sells, exchanges, buys, rents, or
268 offers, attempts or agrees to appraise, auction, or negotiate
269 the sale, exchange, purchase, or rental of business enterprises
270 or business opportunities or any real property or any interest
271 in or concerning the same, including mineral rights or leases,
272 or who advertises or holds out to the public by any oral or
273 printed solicitation or representation that she or he is engaged
274 in the business of appraising, auctioning, buying, selling,
275 exchanging, leasing, or renting business enterprises or business
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276 opportunities or real property of others or interests therein,
277 including mineral rights, or who takes any part in the procuring
278 of sellers, purchasers, lessors, or lessees of business
279 enterprises or business opportunities or the real property of
280 another, or leases, or interest therein, including mineral
281 rights, or who directs or assists in the procuring of prospects
282 or in the negotiation or closing of any transaction which does,
283 or is calculated to, result in a sale, exchange, or leasing
284 thereof, and who receives, expects, or is promised any
285 compensation or valuable consideration, directly or indirectly
286 therefor; and all persons who advertise rental property
287 information or lists. A broker renders a professional service
288 and is a professional within the meaning of s. 95.11(5)(a) s.
289 95.11(4)(a). Where the term "appraise" or "appraising" appears
290 in the definition of the term "broker," it specifically excludes
291 those appraisal services which must be performed only by a
292 state-licensed or state-certified appraiser, and those appraisal
293 services which may be performed by a registered trainee
294 appraiser as defined in part II. The term "broker" also includes
295 any person who is a general partner, officer, or director of a
296 partnership or corporation which acts as a broker. The term
297 "broker" also includes any person or entity who undertakes to
298 list or sell one or more timeshare periods per year in one or
299 more timeshare plans on behalf of any number of persons, except
300 as provided in ss. 475.011 and 721.20.
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CS/HB 1413 2023
301 (j) "Sales associate" means a person who performs any act
302 specified in the definition of "broker," but who performs such
303 act under the direction, control, or management of another
304 person. A sales associate renders a professional service and is
305 a professional within the meaning of s. 95.11(5)(a) s.
306 95.11(4)(a).
307 Section 10. Paragraph (h) of subsection (1) of section
308 475.611, Florida Statutes, is amended to read:
309 475.611 Definitions.—
310 (1) As used in this part, the term:
311 (h) "Appraiser" means any person who is a registered
312 trainee real estate appraiser, a licensed real estate appraiser,
313 or a certified real estate appraiser. An appraiser renders a
314 professional service and is a professional within the meaning of
315 s. 95.11(5)(a) s. 95.11(4)(a).
316 Section 11. Subsection (7) of section 517.191, Florida
317 Statutes, is amended to read:
318 517.191 Injunction to restrain violations; civil
319 penalties; enforcement by Attorney General.—
320 (7) Notwithstanding s. 95.11(5)(e) s. 95.11(4)(e), an
321 enforcement action brought under this section based on a
322 violation of any provision of this chapter or any rule or order
323 issued under this chapter shall be brought within 6 years after
324 the facts giving rise to the cause of action were discovered or
325 should have been discovered with the exercise of due diligence,
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326 but not more than 8 years after the date such violation
327 occurred.
328 Section 12. Subsection (14) of section 768.28, Florida
329 Statutes, is amended to read:
330 768.28 Waiver of sovereign immunity in tort actions;
331 recovery limits; civil liability for damages caused during a
332 riot; limitation on attorney fees; statute of limitations;
333 exclusions; indemnification; risk management programs.—
334 (14) Every claim against the state or one of its agencies
335 or subdivisions for damages for a negligent or wrongful act or
336 omission pursuant to this section shall be forever barred unless
337 the civil action is commenced by filing a complaint in the court
338 of appropriate jurisdiction within 4 years after such claim
339 accrues; except that an action for contribution must be
340 commenced within the limitations provided in s. 768.31(4), and
341 an action for damages arising from medical malpractice or
342 wrongful death must be commenced within the limitations for such
343 actions in s. 95.11(5) s. 95.11(4).
344 Section 13. This act shall take effect October 1, 2023.
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CS/HB 1437
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1437 Pub. Rec./Broadband Opportunity Program Information/DEO
SPONSOR(S): Energy, Communications & Cybersecurity Subcommittee, Esposito and others
TIED BILLS: IDEN./SIM. BILLS: CS/SB 552
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Energy, Communications & Cybersecurity 18 Y, 0 N, As CS Mortellaro Keating
Subcommittee
2) Ethics, Elections & Open Government 17 Y, 0 N Poreda Toliver
Subcommittee
3) Commerce Committee Mortellaro Hamon
SUMMARY ANALYSIS
In 2021, the Legislature created the Broadband Opportunity Program to award grants to applicants who seek
to expand access to broadband Internet service in unserved areas of the state. The grant program is
administered by the Florida Office of Broadband within the Department of Economic Opportunity (DEO). The
grant process requires that certain information about existing and proposed telecommunications facilities be
submitted to DEO.
This bill creates a public record exemption for information relating to communications service locations, project
proposals, and challenges submitted to and held by DEO under s. 288.9962, F.S. Under the bill, such
information is confidential and exempt from public record requirements if it is not otherwise publicly available
and would reveal:
The location and capacity of communications network facilities;
Communications network areas, including geographical maps;
Features, functions, and capabilities of communications network infrastructure and facilities;
Security, including cybersecurity, of the design, construction, and operation of the communications
network and associated services and products;
Specific customer locations; or
Sources of funding or in-kind contributions for a project.
The bill provides that the exemption does not to apply to any required functions of DEO under s. 288.9962,
F.S., relating to publishing a description of the proposed unserved areas to be served and the proposed
broadband Internet speeds for those areas that are provided by each applicant.
The bill provides a statement of public necessity for this exemption. The statement provides that disclosing this
information could result in identification of vulnerabilities in networks, thus allowing security breaches that may
damage and disrupt their safe and reliable operation. This would adversely impact the public health and safety
of the state and affect business interests through such compromise of network security.
The public record exemption created by the bill is subject to the Open Government Sunset Review Act and will
repeal on October 2, 2028, unless reviewed and saved from repeal through reenactment by the Legislature.
The bill provides an effective date of July 1, 2023.
Article I, s. 24(c) of the Florida Constitution requires a two-thirds vote of the members present and
voting for final passage of a newly created or expanded public record or public meeting exemption.
The bill creates a public record exemption; thus, it requires a two-thirds vote for final passage.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h1437d.COM
DATE: 4/6/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Public Records
Article I, section 24(a) of the Florida Constitution sets forth the state’s public policy regarding access to
government records. This section guarantees every person the right to inspect or copy any public
record from the legislative, executive, and judicial branches of government.1 The Legislature, however,
may provide by general law for exemption from public record requirements provided the exemption
passes by two-thirds vote of each chamber, states with specificity the public necessity justifying the
exemption, and is no broader than necessary to meet its public purpose. 2
The Florida Statutes also address the public policy regarding access to government records. Section
119.07(1), F.S., guarantees every person the right to inspect and copy any state, county, or municipal
record, unless the record is exempt.3 Furthermore, the Open Government Sunset Review Act 4 provides
that a public record exemption may be created, revised, or maintained only if it serves an identifiable
public purpose and the “Legislature finds that the purpose is sufficiently compelling to override the
strong public policy of open government and cannot be accomplished without the exemption.” 5 An
identifiable public purpose is served if the exemption meets one of the following purposes:
Allow the state or its political subdivisions to effectively and efficiently administer a
governmental program, which administration would be significantly impaired without the
exemption;
Protect sensitive personal information that, if released, would be defamatory or would
jeopardize an individual’s safety; however, only the identity of an individual may be exempted
under this provision; or
Protect trade or business secrets.6
Pursuant to the Open Government Sunset Review Act, a new public record exemption or substantial
amendment of an existing public record exemption is repealed on October 2 nd of the fifth year following
enactment, unless the Legislature reenacts the exemption.
Florida’s Office of Broadband
In 2020, the Legislature designated the Department of Economic Opportunity (DEO) as the lead state
agency to facilitate the expansion of broadband Internet service in the state. 7 The Florida Office of
Broadband (Office) was created within DEO’s Division of Community Development for purposes of
developing, marketing, and promoting broadband Internet service in the state. 8
In 2021, the Legislature appropriated $1.5 million to DEO to develop geographic information system
maps of broadband Internet service availability, including transmission speeds, consistent with the
Federal Communications Commission’s data collection program standards. 9 DEO must collaborate with
1 Article I, s. 24(a), FLA. CONST .
2 Article I, s. 24(c), FLA. CONST .
3 A public record exemption means a provision of general law which provides that a specified record, or portion thereof, is not subject
to the access requirements of s. 119.07(1), F.S., or s. 24, Art. I of the State Constitution. S. 119.011(8), F.S.
4 S. 119.15, F.S.
5 S. 119.15(6)(b), F.S.
6
Id.
7 Ch. 2002-26, Laws of Fla.
8 Id.
9 Ch. 2021-24, Laws of Fla.
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broadband service providers, state agencies, local government entities, private businesses, educational
institutions, and community organizations to develop these maps.10 Through its website, DEO allows
for public input concerning the speed, connectivity, and access to broadband Internet service in areas
throughout the state to help identify unserved and underserved areas.
Broadband Opportunity Program
In 2021, the Legislature also created the Broadband Opportunity Program 11 to award grants to
applicants who seek to expand access to broadband Internet service 12 in unserved13 areas of the state,
regardless of the technology to be used. 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.14
Applicants eligible for grant awards include corporations, limited liability companies, general
partnerships, limited partnerships, political subdivisions, and Indian tribes. 15
In support of a grant application, an applicant must provide specified information, including, among
other things:
A description of the project area;
A description of the kind and amount of broadband Internet service infrastructure that is
proposed; and
Evidence demonstrating the unserved nature of the project area.16
After the close of the grant application process, the Office must publish on its website, from each grant
application submitted, the proposed unserved areas to be served and the proposed broadband internet
speeds of the areas to be served.17
If a broadband Internet service provider provides service in or adjacent to a proposed project area, it
can submit a written challenge to the Office within 45 days of the information’s publication. The
challenge must demonstrate:
The provider currently has deployed broadband Internet service to retail customers within the
project area;
The provider has begun construction to provide broadband Internet service to retail customers
within the proposed project area within the timeframe proposed by the applicant; or
The provider commits to providing broadband Internet service to retail customers within the
proposed project area within the timeframe proposed by the applicant.
Within three business days after the submission of a written challenge, the Office is to notify the
applicant of the challenge. The Office must evaluate each challenge submitted. If the Office determines
that the provider currently has deployed, has begun construction to provide, or commits to provide
broadband Internet service in the proposed project area, the Office may not fund the challenged
project.18
10 Id.
11 S. 288.9962, F.S.
12 S. 288.9961(2)(a), F.S., defines the term “broadband Internet service” to mean any service that provides access to the Internet with a
capacity for transmission at a consistent speed of at least 25 megabits per second download and 3 megabits per second uploa d.
13 S. 288.9961(2)(g ), F.S., defines the term “unserved” to mean a geographic area of the state without access to broadband Internet
service.
14 S. 288.9962(2), F.S.
15 S. 288.9962(3), F.S.
16 S. 288.9962(5), F.S.
17 S. 288.9962(6)(b ), F.S.
18 S. 288.9962(e), F.S.
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Effect of the Bill
The bill creates a public record exemption by providing that information relating to communications
services locations, project proposals, and challenges submitted to and held by DEO under s. 288.9962,
F.S., are confidential and exempt19 from public record requirements if the information is not otherwise
publicly available and would reveal:
The location and capacity of communications network facilities;
Communications network areas, including geographical maps indicating actual or proposed
locations of network infrastructure, facilities, or coverage;
Features, functions, and capabilities of communications network infrastructure and facilities;
Security, including cybersecurity, of the design, construction, and operation of the
communications network and associated services and products;
Specific customer locations;
Sources of funding or in-kind contributions for a project.
The bill states the exemption does not apply to any required functions of DEO under s. 288.9962, F.S.,
relating to publishing a description of the proposed unserved areas to be served and the proposed
broadband Internet speeds for those areas that are provided by each applicant.
The bill provides that there is a public necessity for this exemption because the information at issue
contains security information and propriety business information of communications services providers.
The bill states that disclosing sensitive information relating to locations, capacities, features, functions,
and security of these networks, aids in identifying vulnerabilities which could result in a breach. A
breach may damage and disrupt the safe and reliable operation of such networks, adversely impacting
the public health and safety of the state and affecting business interests through such compromise of
the network security for communications services providers.
The public record exemption created by the bill is subject to the Open Government Sunset Review Act
and will automatically repeal on October 2, 2028, unless reviewed and saved from repeal by the
Legislature.
The bill provides an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1. Amends s. 119.0712, F.S., to create a public records exemption for certain information
held by the Department of Economic Opportunity.
Section 2. Provides a public necessity statement.
Section 3. Provides an effective date.
19 There is a difference between records the Legislature designates exempt from public record requirements and those the Legisla ture
deems confidential and exempt. A record classified as exempt from public disclosure may be disclosed u nder certain circumstances.
See WFTV, Inc. v. Sch. Bd. of Seminole, 874 So.2d 48, 53 (Fla. 5th DCA 2004), review denied 892 So.2d 1015 (Fla. 2004); City of
Rivera Beach v. Barfield, 642 So.2d 1135 (Fla. 4th DCA 1994); Williams v. City of Minneola, 575 So.2d 683, 687 (Fla. 5th DCA
1991). If the Legislature designates a record as confidential and exempt from public disclosure, such record may not be relea sed by the
custodian of public records, to anyone other than the persons or entities specifically designat ed in statute. See Op. Att’y Gen. Fla.
(1985).
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II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
The bill may have an insignificant negative fiscal impact on DEO as agency staff responsible for
complying with public record requests may require training related to the newly created public
record exemption. These costs, however, would be absorbed, as they are part of the day-to-day
responsibilities of the agency.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditure of funds; reduce the authority that counties and municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties and
municipalities.
2. Other:
Vote Requirement
Article I, section 24(c) of the Florida Constitution requires a two-thirds vote of the members present
and voting for final passage of a newly created or expanded public record or public meeting
exemption. The bill creates a public record exemption; thus, it requires a two-thirds vote for final
passage.
Public Necessity Statement
Article I, section 24(c) of the Florida Constitution requires a public necessity statement for a newly
created or expanded public record or public meeting exemption. The bill creates a public record
exemption; thus, it includes a public necessity statement. The public necessity statement provides,
in part, that the information at issue contains security information and propriety business information
of communications services providers and disclosing such sensitive information could aid in
identifying vulnerabilities which could result in a breach.
Breadth of Exemption
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Article I, section 24(c) of the Florida Constitution requires a newly created or expanded public
record or public meeting exemption to be no broader than necessary to accomplish the stated
purpose of the law. The bill creates a public records exemption for information relating to
communications service locations, project proposals, and challenges submitted to and held by DEO
under s. 288.9962, F.S, which does not appear to be broader than necessary to accomplish its
purpose.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 21, 2023, the Energy, Communications & Cybersecurity Subcommittee adopted one amendment to
the bill and reported the bill favorably as a committee substitute. The amendment:
Removes information that reveals communication network coverage areas from the public record
exemption created by this bill.
Clarifies that the exemption does not apply to publication of information by the Department of Economic
Opportunity that identifies specified areas proposed to be served, and the broadband Internet speeds in
those areas, under the requirements of the state’s Broadband Opportunity Program.
Modifies the public necessity statement to state specifically that communications services providers are
at risk and identify information that if exposed without the exemption would lead to harm.
The analysis is drafted to the committee substitute as passed by the Energy, Communications & Cybersecurity
Subcommittee.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 1437 2023
1 A bill to be entitled
2 An act relating to public records; amending s.
3 119.0712, F.S.; providing an exemption from public
4 records requirements for certain information relating
5 to communications services locations, project
6 proposals, and challenges submitted to and held by the
7 Department of Economic Opportunity under the Broadband
8 Opportunity Program or pursuant to a federal broadband
9 access grant program implemented by the department;
10 providing applicability; providing for future
11 legislative review and repeal of the exemption;
12 providing a statement of public necessity; providing
13 an effective date.
14
15 Be It Enacted by the Legislature of the State of Florida:
16
17 Section 1. Subsection (5) is added to section 119.0712,
18 Florida Statutes, to read:
19 119.0712 Executive branch agency-specific exemptions from
20 inspection or copying of public records.—
21 (5) DEPARTMENT OF ECONOMIC OPPORTUNITY.—
22 (a) Information relating to communications services
23 locations, project proposals, and challenges submitted to and
24 held by the Department of Economic Opportunity under s. 288.9962
25 or pursuant to a federal broadband access grant program
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CS/HB 1437 2023
26 implemented by the Department of Economic Opportunity is
27 confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
28 of the State Constitution if such information is not otherwise
29 publicly available and the release of such information would
30 reveal:
31 1. The location or capacity of communications network
32 facilities;
33 2. Communications network areas, including geographical
34 maps indicating actual or proposed locations of network
35 infrastructure or facilities;
36 3. The features, functions, and capabilities of
37 communications network infrastructure and facilities;
38 4. Security, including cybersecurity, of the design,
39 construction, and operation of the communications network and
40 associated services and products;
41 5. Specific customer locations; or
42 6. Sources of funding or in-kind contributions for a
43 project.
44 (b) This exemption does not apply to any required
45 functions of the department under s. 288.9962 relating to
46 publishing a description of the proposed unserved areas to be
47 served and the proposed broadband Internet speeds of the areas
48 to be served as provided by the applicant and approved by the
49 department.
50 (c) This subsection is subject to the Open Government
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CS/HB 1437 2023
51 Sunset Review Act in accordance with s. 119.15 and shall stand
52 repealed on October 2, 2028, unless reviewed and saved from
53 repeal through reenactment by the Legislature.
54 Section 2. The Legislature finds that it is a public
55 necessity that certain information relating to communications
56 services locations, project proposals, and challenges submitted
57 to and held by the Department of Economic Opportunity under the
58 Broadband Opportunity Program or pursuant to a federal broadband
59 access grant program implemented by the department be made
60 confidential and exempt from public records requirements. Such
61 information contains security information and proprietary
62 business information of communications services providers. The
63 disclosure of sensitive information relating to the location,
64 capacity, features, functions, and security of these networks
65 could result in the identification of vulnerabilities in such
66 networks and allow a security breach that could damage the
67 networks or disrupt the networks' safe and reliable operation,
68 adversely impacting the public health and safety of this state.
69 Further, the disclosure of such information would adversely
70 affect the business interests and compromise the network
71 security of the communications services providers and their
72 networks. Therefore, the Legislature finds that it is a public
73 necessity that certain information relating to communications
74 services locations, project proposals, and challenges submitted
75 to and held by the Department of Economic Opportunity under the
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76 Broadband Opportunity Program or pursuant to a federal broadband
77 access grant program implemented by the department be made
78 confidential and exempt from s. 119.07(1), Florida Statutes, and
79 s. 24(a), Article I of the State Constitution.
80 Section 3. This act shall take effect July 1, 2023.
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HB 1459
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 1459 Registration Fees for Malt Beverage Brands and Labels
SPONSOR(S): Yeager
TIED BILLS: IDEN./SIM. BILLS: SB 658
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform & Economic Development 11 Y, 0 N Thompson Anstead
Subcommittee
2) State Administration & Technology 12 Y, 0 N Helpling Topp
Appropriations Subcommittee
3) Commerce Committee Thompson Hamon
SUMMARY ANALYSIS
In Florida, alcoholic beverages are regulated by the Beverage Law, which regulates the manufacture,
distribution, and sale of wine, beer, and liquor by manufacturers, distributors, and vendors. The Division of
Alcoholic Beverages and Tobacco (ABT) in the Department of Business and Professional Regulation (DBPR)
administers and enforces the Beverage Law, which requires licenses for businesses in the industry and
payment of various associated fees and taxes.
Before doing business in Florida, manufacturers, brewers, bottlers, distributors, and importers of malt
beverages must register with the ABT the brands or labels under which the malt beverages are to be sold or
moved. Current law requires the ABT to charge a $30 fee per brand or label.
The bill:
Provides that the annual registration fee of $30 for each malt beverage brand and label only applies to
a brand or label that is sold to a distributor, not to a brand or label that is kept in-house.
Specifies that no other annual registration fee for a brand or label is authorized under the provision.
The bill will have an indeterminate negative fiscal impact on state government, and no fiscal impact on local
governments.
The bill provides an effective date of July 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Beverage Law
In Florida, alcoholic beverages are regulated by the Beverage Law, 1 which regulates and licenses the
manufacture, distribution, and sale of wine, beer, and liquor by manufacturers, distributors, and
vendors.2 The Division of Alcoholic Beverages and Tobacco (ABT) in the Department of Business and
Professional Regulation (DBPR) administers and enforces the Beverage Law.3
Three-Tier System
In the United States, the regulation of alcohol since the repeal of Prohibition, has traditionally been
based upon a “three-tier system.” The system requires separation of the manufacture, distribution, and
sale of alcoholic beverages. The manufacturer creates the beverages, and the distributor obtains the
beverages from the manufacturer to deliver to the vendor. The vendor makes the ultimate sale to the
consumer. A manufacturer, distributor, or exporter may not be licensed as a vendor to sell directly to
consumers.
Generally, Florida has adopted the three-tier system. Exceptions to the three-tier regulatory system
permit in-state wineries,4 breweries,5 and craft distilleries to be licensed as a vendor and sell directly to
consumers under certain circumstances.6
Brand and Label Registration Fee
No manufacturer, brewer, bottler, distributor, or importer of malt beverages may sell or offer for sale in
Florida, or move or cause to be moved within or into Florida, any malt beverages, without: 7
Qualifying to do business in the state and registering its name and the brands or labels under
which the malt beverages are to be sold or moved; and
Furnishing any samples and information as to content, quality, and formula of such malt
beverages as the ABT may require.
Each registrant must pay an annual registration fee of $30 for a brand or label.8
Effect of Proposed Changes
The bill provides that the annual registration fee of $30 for each malt beverage brand and label only
applies to a brand or label that is sold to a distributor, not to a brand or label that is kept in-house.
The bill also specifies that no other annual registration fee for a brand or label is authorized under the
provision.
B. SECTION DIRECTORY:
Section 1: Amends s. 563.045, F.S., revising requirements for brand and label fees.
1
S. 561.01(6), F.S., provides that the “The Beverage Law” means chs. 561, 562, 563, 564, 565, 567, and 568, F.S.
2
See s. 561.14, F.S.
3
S. 561.02, F.S.
4
See s. 561.221(1), F.S.
5
See s. 561.221(2), F.S.
6
See s. 565.03, F.S.
7
S. 563.045(1), F.S.
8
S. 563.045(2), F.S.
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Section 2: Provides an effective date of July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
The bill may cause an indeterminate decrease in brand and label fees collected by the ABT.
The table below shows the last three fiscal years of revenue collected for brands/label
registrations.9
2020 2021 2022
Initial Malt Beverages $206,280 $239,730 $255,930
Licenses
Malt Beverage License $98,580 $130,020 $131,820
Renewals
These revenues include brand and label fees for all beverages. The reduction in revenue will be
determined by the number of beverages that are kept in house, which is not currently tracked.
2. Expenditures:
There will be minor adjustments to the online system for brand registration which is estimated to
cost $16,000.10
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may have a positive impact on craft brewers and brewpubs, who may pay less in brand and
label fees to the ABT.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
9 Florida Department of Business and Professional Regulation, Agency Analysis of 2023 Senate Bill 658, p. 5 (Feb. 23,
2023).
10 Id.
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Not applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 1459 2023
1 A bill to be entitled
2 An act relating to registration fees for malt beverage
3 brands and labels; amending s. 563.045, F.S.;
4 providing that the annual registration fee is required
5 only if labels or brands are sold to a distributor;
6 specifying that no other registration fee is
7 authorized; providing an effective date.
8
9 Be It Enacted by the Legislature of the State of Florida:
10
11 Section 1. Subsection (2) of section 563.045, Florida
12 Statutes, is amended to read:
13 563.045 Brands or labels to be registered; qualification
14 to do business; fee; revocation.—
15 (2) The each registrant shall pay an annual registration
16 fee for a brand or label sold to a distributor is of $30 for a
17 brand or label. No other annual registration fee for a brand or
18 label is authorized under this section. Any registration may be
19 suspended or revoked in the same manner as a beverage license
20 for any violation of the Beverage Law.
21 Section 2. This act shall take effect July 1, 2023.
Page 1 of 1
CODING: Words stricken are deletions; words underlined are additions.
hb1459-00
CS/HB 1521
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1521 Facility Requirements Based on Sex
SPONSOR(S): Regulatory Reform & Economic Development Subcommittee, Plakon and others
TIED BILLS: IDEN./SIM. BILLS: SB 1674
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform & Economic Development 11 Y, 3 N, As CS Hamon Hamon
Subcommittee
2) Commerce Committee Hamon Hamon
SUMMARY ANALYSIS
Currently, Florida law does not address whether businesses, schools, hospitals or prisons are required to
provide separate restrooms or changing rooms for people based on their sex. However, the Florida Building
Code does require that certain businesses that are open to the public, like public lodging establishments and
restaurants, have at least one restroom open to the public. In addition, Florida does not currently make it a
crime for a person of one sex to enter a restroom or changing room intended for use by the opposite sex.
The bill:
Creates the “Safety in Private Spaces Act.”
Requires public and private sector covered entities that maintain a restroom or changing facility to have
restrooms separately designated for males and females or a unisex restroom or changing facility.
Limits instances when a person may enter a restroom or changing facility designated for the opposite
sex to the following circumstances:
o For assisting or chaperoning a minor child, elderly person, or disabled person.
o For law enforcement or governmental regulatory purposes.
o For emergency situations.
o For custodial, maintenance, or inspection purposes, if not in use.
o If the appropriate designated restroom or changing facility is out of order or under repair and the
opposite designated restroom or changing facility contains no person of the opposite sex.
Makes it a second degree misdemeanor for a person 18 years of age or older to willfully enter a
restroom or changing facility designated for the opposite sex and refuse to immediately depart.
Requires educational institutions to establish disciplinary procedures for violators under 18 years old.
Requires all covered entities who must be licensed to operate in the state to submit documentation
regarding compliance with restroom and changing facilities requirements, as applicable, upon initial or
renewal application for licensure, after July 1, 2023.
Requires domestic violence centers and correctional institutions to provide separate accommodations
for females and males, based on their sex.
Makes covered entities who fail to comply with such requirements subject to penalties and licensure or
regulatory disciplinary action.
Exempts individuals born with certain verifiable disorders of sex development.
Authorizes the Attorney General to bring a civil action to enforce these provisions against any covered
entity, to seek injunctive relief, and to impose a fine of up to $10,000 for any covered entity found to
have willfully violated such provisions.
Directs fines collected to be deposited in the General Revenue Fund.
The bill may have an indeterminate fiscal impact on state and local government and the private sector.
The effective date of the bill is July 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Restrooms and Building Codes
Until roughly 1850, there were no indoor toilet facilities in America. Everyone used outdoor restrooms to
meet basic human needs, which were mostly single-user and not sex-designated. The first regulation
requiring separate restroom facilities for men and women was passed in 1887 by Massachusetts, which
required the establishment of separate restrooms in businesses. “Wherever male and female persons
are employed in the same factory or workshop, a significant number of separate and distinct water-
closets, earth-closets, or privies shall be provided for the use of each sex and should be plainly
designated.” Mixed use of such facilities was also specifically prohibited in some states. Over the
course of the next thirty years, almost every state passed its own provision for separate restrooms for
men and women.1 Historians indicate that these laws were based on the social norms of the times and
the intention to protect women.2
These requirements were carried over in building codes throughout the U.S. 3 Building codes in the U.S.
provide a mechanism for the uniform adoption, updating, interpretation, and enforcement of uniform
building standards. Typically, restroom requirements are based on a public building’s capacity to
determine how many restrooms should be built. Most codes mandate a minimum number of toilets and
urinals per sex. Previously, these requirements resulted in more facilities being made available for men
than for women, resulting in famously long lines for ladies’ rooms, which lead to “Potty Parity” laws.4
Florida’s law required three women’s toilets for every two for men in certain facilities.5 After various
changes over the years, Florida has settled on incorporating the International Plumbing Code into the
state building code which sets the number of toilets for the expected public use and size of a facility --
usually two female toilets for every one male depending on occupancy.6
The Florida Building Code provides that where plumbing fixtures are required, usually based on being
open to the public, separate facilities must be provided for each sex7 with correct signage8, with certain
exceptions.9 For example, family or assisted-use toilet facilities are permitted to serve as the required
separate facilities and are not required to be identified for exclusive use by either sex. 10 Single-user
toilet facilities and bathing rooms, and family or assisted-use toilet and bathing rooms, must be
identified for use by either sex.11
Requirements for restrooms may differ depending on the type of building or business. For example:
The Florida Building Code requires swimming pools with a bathing load of 20 persons or less to utilize
a unisex restroom. Pools with bathing loads of 40 persons or less may utilize two unisex restrooms or
1 TIME, Maya Rhodan, Why Do We Have Men's and Women's Bathrooms Anyway?, May 16, 2016,
https://time.com/4337761/h istory-sex-segregated-bathrooms/ (last visited Mar. 22, 2023).
2 Id. During this same period, separate facilities were required in almost every area of society for women’s safety. For example:
women’s reading rooms, and women’s train cars.
3 Suellen Hoy, Chasing Dirt, The American Pursuit of Cleanliness, Oxford University Press, Oct. 10, 1996.
4 New York Times, John Brach, New Ballpark Statistic: Stadium’s Toilet Ratio, April 12, 2009,
https://www.nytimes.com/2009/04/ 13/sports/baseball/13potty.html?auth=login-google1tap&login=google1tap (last visited on Mar.
22, 2023).
5 S. 553.141 (1997).
6 American Restroom Association, Potty Parity, Overview, https://americanrestroom.org/potty-parity/ (last visited Mar. 22, 2023). See
also, s. 553.86, F.S.
7 S. 553.86, F.S.
8 S. 403.4, F.B.C.
9 S. 403.2, F.B.C.
10 S. 403.2.1, F.B.C.
11 S. 403.1.2, F.B.C.
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meet the requirements based on square footage. Each such restroom must include a water closet, a
diaper change table, a urinal, and a lavatory. Pools with a bathing load larger than 40 persons must
provide separate sanitary facilities labeled for each sex.12
Some states have specifically adopted laws related to restrooms and who is permitted to use them. For
example: In 2016, North Carolina enacted the Public Facilities Privacy & Security Act (Act). The Act
preempted any anti-discrimination ordinances passed by local communities and compelled schools and
state and local government facilities containing single-gender restrooms to only allow people of the
corresponding sex as listed on their birth certificate to use them. 13 In 2017, the portion of the Act
regarding restroom use was repealed and, in 2020, the portion that prohibited local governments from
passing anti-discrimination ordinances was sunset.14
Restrooms in Florida’s Public Lodging and Public Food Service Establishments
The Division of Hotels and Restaurants (Division) within the Department of Business and Professional
Regulation (DBPR) is charged with enforcing the provisions of ch. 509, F.S., and all other applicable
laws relating to the inspection and regulation of public lodging establishments and public food service
establishments 15 for the purpose of protecting the public health, safety, and welfare. 16 Public lodging
establishments are classified as a hotel, motel, vacation rental, nontransient apartment, transient
apartment, bed and breakfast inn, or timeshare project.17
According to Florida laws and regulations governing hotels and restaurants, each public lodging
establishment and each public food service establishment in the state is required to maintain public
restroom facilities in accordance with the Florida Building Code as approved by the local building
authority,18 and must meet the following requirements:
Each transient establishment that does not provide private or connecting restrooms shall
maintain one public restroom on each floor for every 15 guests, or major fraction of that number,
rooming on that floor.19
Each public lodging establishment and public food service establishment must be supplied with
potable water and provide adequate sanitary facilities for the accommodation of its employees
and guests. Such facilities may include, but are not limited to, showers, handwash basins,
toilets, and bidets, and must be connected to approved plumbing in accordance with the Florida
Building Code as approved by the local building authority.20
Each public lodging establishment and public food service establishment is required to provide
at least one conveniently located restroom facility for its employees and guests as approved by
the local building authority having jurisdiction.21
Public access to restroom facilities may not be permitted through food preparation, storage, or
ware washing areas.22
Restroom fixtures must be of readily cleanable sanitary design. Restroom facilities must be kept
clean, in good repair and free from objectionable odors. Restrooms must provide at least 20 foot
candles of light. The walls, ceilings and floors of all restroom facilities shall be kept in good
condition.23
12 S. 403.6, F.B.C.
13 North Carolina General Assembly, House Bill 2/SL 2016-3, https://www.ncleg.gov/BillLookup/2015E2/H2 (last visited Mar. 20,
2023).
14 North Carolina General Assembly, House Bill 142/SL 2017-4, https://www.ncleg.gov/BillLookup/2017/h142 (last visited Mar. 20,
2023).
15 S. 509.013(5)(a), F.S.
16 S. 509.241, F.S.
17 S. 509.242(1), F.S.
18 S. 509.221(2)(a), F.S.
19 S. 509.221(2)(c), F.S.
20 S. 509.221(1), F.S.
21 R. 61C-1.004, F.A.C.
22 Id.
23 Id.
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Restrooms must be completely enclosed and have tight-fitting, self-closing doors, except
restrooms located in public lodging establishments or located outside a public food service
establishment, may have entrances and exits constructed in such a manner as to ensure
privacy of occupants. Restroom doors shall not be left open except during cleaning or
maintenance. Handwashing signs must be posted in each restroom used by employees.24
In a restroom where more than one toilet is provided, each toilet must be separated by a
partition from adjoining fixtures and a door shall be provided which will partially conceal the
occupant from outside view.25
Nontransient establishments, vacation rentals, and timeshare projects are exempt from the
provisions of this subsection.26
Family Restrooms
According to the American Restroom Association, ADA accessible single-stall restrooms are important
for people living with “special needs.” These restrooms allow people with special needs to visit
museums, parks, theaters, libraries and other public places. 27 Family style, unisex, or single-user
restrooms (often called handicapped restrooms) offer flexibility. Males or females, and one or more
individuals (i.e. family members), of the same or opposite sex, can use them. They can also provide
such amenities as two toilets, one for adults and one for children, and a changing table.28
People with visible physical disabilities are not the only users of single-stall handicapped restrooms.
The single-stall washroom (whether it is called family style or handicapped washroom) provides a
higher level of privacy than the multi-stall public restrooms. In addition, people using an ostomy pouch
often prefer the additional access space and increased privacy of a unisex restroom. 29
Pay Toilets
Currently, there is a shortage of public restrooms in U.S. cities. However, this wasn’t always the case.
Publicly-available for-pay restrooms used to be common in the U.S. In the early 1900s, they were
available at railroad stations, airports, bus stations, and highway rest stops. They were also common in
busy urban commercial districts. For the most part, people had to pay for the stalls, which opened with
coins, while urinals were free. By 1970, America had over 50,000 for-pay toilets.30
In the 1970s, several separate interests began dismantling this business model. One was the feminist
movement, which pointed out differences in charges - some companies charged for using commodes
or toilets, which were more expensive to operate than urinals, but did not charge for urinals. Another
was the Committee to End Pay Toilets in America (CEPTIA), a group of teenagers who got tired of
paying to use restrooms. As a result, states began passing legislation to ban for-pay restrooms.31
Instead of free public toilets available for all, public toilets pretty much disappeared from American
cities, since cities found it expensive and difficult to keep them safe and clean. By 1980, almost none
existed in the United States. In Europe, where there was no such movement, pay public toilets continue
to operate today. Today, in the United States, many complain that restrooms are unsafe, unclean, and
24 Id.
25 Id.
26 Id.
27 American Restroom Association, Family and Unisex Restrooms, https://americanrestroom.org/family-unisex-restrooms/ (last visited
Mar. 20, 2023).
28 Id.
29 Id.
30 Catalyst, U.S. Cities Should Bring Back For-pay Toilets, https://catalyst.independent.org/2020/02/13/u-s-cities-should-bring-back-
for-pay-toilets/ (last visited Mar. 20, 2023).
31 Id.
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in disrepair, and have a reputation for attracting illegal activity.32 The resulting restroom shortage has
resulted in real inconvenience in cities, and sometimes public health problems. 33
Federal Regulations Related to Restrooms
Enacted in 1970, the Occupational Safety and Health Act (OSHA) guarantees that employers will
provide all employees with safe work conditions. It includes accessibility to restrooms and sanitary
conditions.34 It provides that restroom facilities for employees must be made available based on the
knowledge that restroom restrictions can result in employees avoiding using restrooms entirely while at
work, which can lead to potentially serious physical injury or illness.
OSHA covers the number of water closets required depending on the number of employees. At work
sites with up to 15 employees, one water closet is expected to be provided; Otherwise, the standard is
one for every 40 employees. If employee restrooms are made available to the public, they must comply
with local building code requirements, and OSHA and ADA requirements.
Florida law requires all restrooms to be compliant with the Americans With Disabilities Act (ADA),
which, among other things, directs the provision of as-needed restroom breaks as a reasonable
accommodation for an employee who needs to use the facilities due to an injury, disability, or illness.
Requirements include that different facilities have to be provided for each sex unless the restrooms
themselves can be occupied by no more than one person and can be locked from the inside. Each
restroom is required to be a separate compartment, with a door, that is separated from the next by
partitions. Public restrooms must be completely closed and have tight-fitting doors that close properly to
ensure privacy. In addition, entrances and exits must be designed to promote an occupants' privacy.35
Federal Law and Recent Cases Related to the Use of Restrooms
Public debate, legal questions, and concerns exist regarding whether discrimination against a
transgender36 student or transgender employee constitutes discrimination “on the basis of sex.” Such
issues have multiple contexts, including debate over transgender restroom policies. Interpretations of
the protections are varied.
Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 (Title VII) is a federal law that protects employees against
discrimination in the workplace based on certain specified characteristics, including race, color, national
origin, sex, and religion. Title VII provides:
“It shall be an unlawful employment practice for an employer… to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.37
32 Marketplace, Chelsea Wald, Shelf Life, What happened to America’s public toilets?, April 13, 2021,
https://www.marketplace.org/2021/04/13/what-happened-to-americas-public-toilets/ (last visited Mar. 22, 2023).
33 Id.
34 29 CFR 1910.141(c)(1)(i).
35 Americans with Disabilities Act, ADA Title III Technical Assistance Manual, Covering Public Accommodations and Commercial
Facilities, https://archive.ada.gov/taman3.html; The ADA-Compliant Restroom, https://www.buildings.com/ada-
compliance/article/10191973/the-ada-compliant-restroom; ADACP, ADA guidelines for restroom accessibility
https://adacompliancepros.com/ada-guidelines-for-restroom -accessibility/
36 The term "transgender" is an "umbrella term for people whose gender identity and/or gender expression differs from what is
typically associated with the sex they were assigned at birth." Definition from the GLAAD Media Reference Guide,
http://www.glaad.org/reference/transgender (last visited Mar. 19, 2023).
37 42 U.S.C. §§ 2000e - 2000e17 (as amended).
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Title VII applies to employers in both the private and public sectors that have 15 or more employees. It
also applies to the federal government, employment agencies, and labor organizations.
Title VII is enforced by the Equal Employment Opportunity Commission (EEOC). The Attorney General,
through the Employment Litigation Section (ELS) of the DOJ brings lawsuits under Title VII against
state and local government employers after the EEOC refers a complaint to the DOJ and investigates
employers when there is reason to believe that an employer’s policy or practice discriminates against a
group of job applicants or employees based on their race, color, religion, sex (including sexual
orientation and gender identity), or national origin.38
Title IX of the Education Amendments of 1972
The U.S. Department of Education (USDOE) Office for Civil Rights (OCR) enforces, among other
statutes, Title IX of the Education Amendments of 1972,39 which protects people from discrimination
based on sex in education programs or activities that receive federal financial assistance. Title IX
states:
No person in the United States shall, on the basis of sex, be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance.40
Title IX applies to schools, local and state educational agencies, and other institutions that receive
federal financial assistance from the USDOE. These recipients include approximately 17,600 local
school districts, over 5,000 postsecondary institutions, and charter schools, for-profit schools, libraries,
and museums. Also included are vocational rehabilitation agencies and education agencies of 50
states, the District of Columbia, and territories of the United States. 41 Title IX is enforced through
private causes of action against the federal funding recipient, and by federal agencies that provide
funding to the educational programs or activities.42
Guidance by Federal Agencies
Since 2016, the USDOE and DOJ have issued multiple guidance documents addressing whether Title
IX and Title VII apply to claims of discrimination in programs or activities based on gender identity or
sexual orientation.
In 2016, the DOJ and USDOE issued a letter43 containing “significant guidance” on how the
departments applied sex discrimination protections under Title IX to transgender students, including
access to restrooms, locker rooms, and similar facilities. Litigation challenging the enforceability of its
protections providing access to restrooms and other facilities that match a student’s gender identity
38 U.S. Department of Justice Employment Litigation Section, Laws We Enforce, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964,
https://www.justice.gov/crt/laws -we-
enforce#:~:text=The%20Attorney%20General%2C%20through%20ELS,to%20the%20Depart ment%20of%20Justice. (last visited
Mar. 20, 2023).
39 20 U.S.C. 1681 through 1688; Pub. L. 100-259, 102 Stat. 28 (Mar. 22, 1988).
40 20 U.S.C. § 1681(a).
41 U.S. Department of Education Office of Civil Rights, Title IX and Sex Discrimination,
https://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html (last visited Mar. 20, 2023).
42 Title IX is not the exclusive remedy for victims of sex discrimination in schools. In matters pertaining to public colleges,
universities, or school districts, 42 U.S.C. § 1983 provides an avenue for relief against state actors who deprive individuals of a
constitutional right. The Supreme Court has held that Title IX does not displace the availability of § 1983 claims based on the Equal
Protection Clause for plaintiffs alleging gender discrimination in schools. Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 248
(2009).
43 U.S. Department of Education, Dear Educator (June 23, 2021),
https://www2.ed.gov/about/offices/list/ocr/correspondence/stakeholders/educator-202106-tix.pdf (last visited Mar. 20, 2023).
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ensued.44 In 2017, the DOE and the DOJ rescinded the letter.45 The rescission letter indicated that the
original letter caused extensive litigation regarding school restrooms and locker rooms and pointed to
regard for the primary role of the States and local school districts in establishing educational policy. 46
In 2021, President Biden signed an executive order addressing implementation of non-discrimination47
protections 48 on the basis of “sex” related to Title IX and Title VII.49, The executive order cited the 2020
U.S. Supreme Court Bostock decision50 as the basis. However, the Supreme Court did not state that
“gender identity” is a protected characteristic. Instead, it held that discrimination on the basis of
“transgender status” is a form of sex discrimination. The court did not provide a definition for
transgender status.51 The USDOE52 issued guidance and the EEOC53 issued Technical Assistance
Document indicated that USDOE and EEOC would enforce Title VII and Title IX to require transgender
persons to be allowed to use facilities (restrooms, locker rooms, etc.) consistent with their gender
identity.54
In 2021, 20 states filed suit against the USDOE, the EEOC and the DOJ, alleging that the guidance
documents and Technical Assistance Document were unlawful. 55 On July 15, 2022, the U.S. District
Court for the Eastern District of Tennessee entered a preliminary injunction barring the EEOC and the
USDOE from enforcing guidance documents issued to interpret Title VII and Title IX to prohibit
discrimination based on sexual orientation and gender identity. 56 In March of 2022, the State of Texas
filed suit, arguing that the EEOC guidance does not coincide with law because it diverges from the
stated protections of Title VII as interpreted through Bostock. 57 In October, 2022, the U.S. District Court
for the Northern District of Texas held that the EEOC guidance addressing sexual orientation and
gender identity discrimination in the workplace is unlawful. The Court granted the state’s request
for declaratory judgment, declared the guidance unlawful, and vacated the guidance on a nationwide
basis.58
In June 2022, the USDOE released proposed changes to Title IX regulations for public comment
extending Title IX’s prohibition on discrimination based on sex to sexual orientation and gender identity,
giving such protections to transgender students.59
Cases Related to State and Local Policies
44 U.S. Department of Education, Dear Colleague Letter on Title IX Coordinators,
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201504-title-ix-coordinators.pdf (last visited Mar. 20, 2023).
45 Jackson Lewis, Trump Administration Rescinds Guidance on Transgender Rights under Title IX,
https://www.jacksonlewis.com/publication/trump-administration-rescinds-guidance-transgender-rights-under-title-ix (last visited Mar.
20, 2023).
46 U.S. Department of Justice and U.S. Department of Education, Dear Colleague Letter (Feb. 22, 2017),
http://i2.cdn.turner.com/cnn/2017/images/02/23/ 1atransletterpdf022317.pdf (Last visited Mar. 2023).
47 U.S. Department of Justice, Civil Rights Division, MEMORANDUM TO: Federal Agency Civil Rights Directors and General
Counsels, https://www.justice.gov/crt/page/file/1383026/download (last visited Mar. 19, 2023).
48 34 C.F.R. ch. I.
49 Executive Order 13988.
50 Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 1737 (2020).
51 Id.
52 U.S. Department of Education and U.S. Department of Justice, Confronting Anti-LGBTQI+ Harassment in Schools,
https://www2.ed.gov/about/offices/list/ocr/docs/ocr-factsheet-tix-202106.pdf (last visited Mar. 20, 2023).
53 U.S. Equal Employment Opportunity Commission, Protection s Against Employment Discrimination Based on Sexual Orientation or
Gender Identity, https://www.eeoc.gov/laws/guidance/protections-against-employment-discrimination-based-sexual-orientation-or-
gender (last visited Mar. 20, 2023); See also, JD Supra, District Court Enjoins EEOC and Department of Education Guidance
Protecting LGBTQ Rights, https://www.jdsupra.com/legalnews/district-court-enjoins-eeoc-and-7385661/ (last visited Mar. 20, 2023).
54 Id.
55 Tennessee. et al. v. U.S. Dep’t of Educ. et al., Case No. 3:21-cv-308 (E.D. Tenn.).
56 Id.
57 State of Texas v. EEOC, Case No. 2:21-cv-00194-Z.
58 Id.
59 U.S. Department of Education, The U.S. Department of Education Releases Proposed Changes to Title IX Regulations, Invites
Public Comment, https://www.ed.gov/news/press-releases/us-department-education-releases-proposed-changes-title-ix-regulations-
invites-public-comment (last visited Mar. 20, 2023).
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In June 2020, the U.S. Supreme Court issued its opinion in Bostock v. Clayton County, holding that
under Title VII, prohibited “sex” discrimination includes prohibiting employers from discriminating
against employees because of an individual’s sexual orientation or gender identity. The Court reached
its conclusion by interpreting the Title VII’s statutory language, particularly the phrase “based on sex.”
The Court noted that it was only addressing the question of whether employees could be fired under
Title VII for their LGBTQ status and was not addressing issues such as “restrooms, locker rooms… or
anything else of the kind.”60
In 2020, the U.S. Fourth Circuit Court of Appeals determined that a Maryland local school board’s
policy refusing to allow a transgender student to use the school restroom that corresponds with their
gender identity violated both the Fourteenth Amendment Equal Protection Clause61 and Title IX. The
court further held that the school’s refusal to amend the student’s school records 62 to accurately reflect
gender, in accordance with driver’s license and birth certificate information, also violated the Equal
Protection Clause and Title IX.63 In 2021, the U.S. Supreme Court declined to hear the case, leaving
the appellate court decision in place, which says the school district discriminated against a transgender
student by not permitting the student to use a certain restroom at school.64
In 2022, the U.S. Eleventh Circuit Court of Appeals determined that a Florida local school board’s
policy requiring students to use the restroom corresponding to their biological sex was proper based
on both the U.S. Constitution and Title IX.65 The majority opinion provided that Title IX allows schools to
provide separate restrooms on the basis of biological sex.66 However, the dissenting opinions indicated
that the restroom policy was discriminatory because "[u]nderlying this sex-assigned-at-matriculation
restroom policy, … is the presumption that biological sex is accurately determinable at birth and that it
is a static or permanent biological determination.” 67
In October, 2022, the Florida State Board of Education adopted a rule requiring that if a school board or
charter school governing board has a policy or procedure that allows for separation of restrooms or
locker rooms according to some criteria other than biological sex at birth, the policy or procedure
must be posted on the district’s website or charter school’s website, and must be sent by mail to
student residences to fully inform parents. 68 The rule went into effect on November 22, 2022.69
Domestic Violence Centers
Florida law governing domestic violence70 requires the Department of Children and Families (DCF) to
operate the domestic violence program and coordinate and administer statewide activities related to the
prevention of domestic violence.71 DCF is responsible for providing services to victims of domestic
violence and their families, including, but not limited to, certifying and monitoring domestic violence
centers.72
60 Bostock v. Clayton County, Georgia, 590 U.S. __, 140 S. Ct. 1731, 1737 (2020).
61 The Fourteenth Amendment Equal Protection Clause provides that no state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or proper ty, without due
process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
62 U.S. Department of State, Bureau of Consular Affairs, Gender Reassignment Applicants,
http://travel.state.gov/content/passports/english/passports/information/gender.html (last visited Mar. 19, 2023).
63 Grimm v. Gloucester County School Board, 972 F.3d 586 (Aug. 20, 2020).
64 U.S. Supreme Court, Order List: 594 U.S. (June 28, 2021), 20-1163 GLOUCESTER COUNTY SCHOOL BOARD V. GRIMM,
GAVIN The petition for a writ of certiorari is denied, https://www.supremecourt.gov/orders/courtorders/062821zor_6j37.pdf (last
visited Mar. 20, 2023).
65 Drew Adams v. School Board of St. John’s County, Florida , No. 18-13592 (December 30, 2022).
66 Florida Department of Highway Safety and Motor Vehicles, Gender Reassignment, http://fdhsmv.rapidinsites.com/answer/gender-
reassignment (last visited Mar. 19, 2023).
67 Id.
68 R. 64V-1.002, F.A.C.
69 R. 6A-10.086, F.A.C.
70 Ch. 39, part XII, F.S.
71 S. 39.903(1), F.S.
72 S. 39.901(2), F.S.
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A “domestic violence center” is defined as an agency that provides services to victims of domestic
violence as its primary mission.73 According to the DCF Office of Domestic Violence, Florida has 41
certified domestic violence centers, which offer temporary emergency shelter, advocacy, and crisis
intervention services to provide victims with the resources necessary to be safe and live free of
violence. Such services include:74
24-Hour Hotline.
Temporary Emergency Shelter.
Safety Planning.
Information and Referrals.
Counseling and Case Management.
Nonresidential Outreach Services.
Training for Law Enforcement Personnel.
Needs Assessments and Referrals for Resident Children.
Educational Services for Community Awareness Related to domestic violence and Available
Services/Resources for Survivors.
DCF employees and domestic violence center employees or volunteers are prohibited from disclosing
the location of a center or any records relating to domestic violence center clients, as such information
is deemed confidential and exempt from disclosure under the public records laws in ch. 119, F.S.
Violations are a second degree misdemeanor for a first offense and third degree felony for subsequent
offenses.75
Correctional Institutions
Florida’s correctional system, under the jurisdiction of the Florida Department of Corrections (DOC),76 is
the third largest state corrections system in the U.S. and the largest state agency in Florida. 77 The
purpose of the DOC is to:
Protect the public through the incarceration and supervision of offenders;
Rehabilitate offenders;
Provide a safe and humane environment for offenders and staff; and
Protect offenders from victimization within the institution.78
According to the DOC, inmates are transported from a county jail or enter the system through one of
five receptions centers located throughout the state. Upon arrival at a reception center, an inmate is
processed, tested, evaluated by health services, assessed for rehabilitative program needs, at which
point custody and housing is determined.79
As of March 2022, the DOC housed 80,917 inmates in its facilities and was responsible for an
additional 86,391 offenders on active community supervision. Prior to the COVID-19 pandemic, the
DOC incarcerated approximately 94,000 inmates.80
The state pays for the vast majority of prison beds in the Florida. However, it receives some funding
from the federal government in the form of grants. One grant comes from the state’s compliance with
73 S. 39.902(2), F.S.
74 Florida Department of Children and Families, Office of Domestic Violence,Domestic Violence Services,
https://www.myflfamilies.co m/services/abuse/domestic-violence/office-domestic-violence (last visited Apr. 6, 2023).
75 S. 39.9057, F.S.
76 See ch. 944, F.S.
77 Florida Department of Corrections, Strategic Plan & Annual Report (2021-2024), http://www.dc.state.fl.us/pub/annual/1819/2020-
2021-Strategic-Plan.pdf (last visited Mar. 29, 2023).
78 S. 20.315(1), F.S.
79 Florida Department of Corrections, Strategic Plan & Annual Report (2021-2024), http://www.dc.state.fl.us/pub/annual/1819/2020-
2021-Strategic-Plan.pdf (last visited Mar. 29, 2023).
80 Office of Program Policy Analysis and Government Accountability (OPPAGA), Department of Corrections,
https://oppaga.fl.gov/ProgramSummary/ProgramDetail?programNu mber=1074 (last visited Mar. 29, 2023).
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the federal Prison Rape Elimination Act (PREA),81 which was created to eliminate sexual abuse in
confinement facilities. Florida receives a PREA allocation as part of the Edward Byrne Memorial Justice
Assistance Grant (JAG) program. The grant has varied over the years between $150,000 to $180,000.
Under PREA program, all funds must be used to implement initiatives to reduce, eliminate, and/or
mitigate the risk of prison rape.82 PREA includes forty-three standards that define three clear goals: to
prevent, detect and respond to sexual abuse.
PREA provides that if a state that does not certify full compliance with the PREA standards it is subject
to the loss of certain U.S. Department of Justice (DOJ) grant funds that it would otherwise receive for
prison purposes.83 Failure to follow PREA would make Florida subject to the loss of 5 percent of any
DOJ grant funds that it would otherwise receive for prison purposes. As of the Fiscal Year 2022
reporting cycle, Florida has certified that it is in full compliance. 84
Proposed Changes
The bill creates the "Safety in Private Spaces Act."
The bill provides the intent that “females and males should be provided restrooms and changing
facilities for their exclusive use in order to maintain public safety, decency, and decorum.”
The bill defines the following terms:
"Changing facility" means a room in which two or more persons may be in a state of undress in
the presence of others, including, but not limited to, a dressing room, fitting room, locker room,
changing room, or shower room.
"Correctional institution" means any state correctional institution as defined in s. 944.02, F.S.,
juvenile detention center or residential program as described in s. 985.03, F.S., county or
municipal detention facility as defined in s. 951.23, F.S., private correctional facility as defined in
s. 944.710, F.S., or any other facility used for the detention of adults or juveniles charged with or
convicted of a crime.
"Covered entity" means any:
o Educational institution, as defined in s. 768.38, F.S.
o Public accommodations, as defined in s. 760.02(11), F.S.
o Public shelter space under s. 252.385, F.S.
o Service provider, as defined in s. 397.311(44), F.S.
o Health care facility, which means:
Provider as defined in s. 408.803, F.S.;
Provider with an active health care clinic exemption under s. 400.9935, F.S.;
Continuing care facility with a certificate of authority under chapter 651, F.S.;
Optical establishment permitted under s. 484.007, F.S.;
Massage establishment licensed under s. 480.043, F.S.;
Pharmacy as defined in s. 465.003, F.S.;
Office described in s. 459.0138, F.S., which is required to register with the
Department of Health;
Pain-management clinic registered under s. 458.3265, F.S.;
Electrolysis facility licensed under 478.51, F.S.;
Health care setting owned or operated by a health care practitioner as defined in
s. 456.001, F.S.; or
Provider licensed under ch. 394, ch. 397, or part IV of ch. 468, F.S.
81 34 U.S.C. 30301(1).
82 Florida Department of Law Enforcement, Office of Criminal Justice Grants, Prison Rape Elimination Act (PREA)
https://www.fdle.state.fl.us/Grants/Programs/PREA.aspx#:~:text=Florida%20receives%20a%20PREA%20allo cation,the%20risk%20
of%20prison%20rape. (last visited April 5, 2023).
83 34 U.S.C. 30307(e).
84 US Department of Justice, Bureau of Justice Assistance, Prison Rape Elimination Act (PREA), Overview,
https://bja.ojp.gov/doc/fy22-prea-certification-assurance-submissions.pdf
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"Female" means a person belonging, at birth, to the biological sex which has the specific
reproductive role of producing eggs.
"Male" means a person belonging, at birth, to the biological sex which has the specific
reproductive role of producing sperm.
"Restroom" means a room that includes one or more water closets. This term does not include a
unisex restroom.
"Sex" means the classification of a person as either female or male based on the organization
of the body of such person for a specific reproductive role, as indicated by the person's sex
chromosomes, naturally occurring sex hormones, and internal and external genitalia present at
birth.
"Unisex changing facility" means a room intended for a single-occupant or a family in which one
or more persons may be in a state of undress, including, but not limited to, a dressing room,
fitting room, locker room, changing room, or shower room that is enclosed in floor-to-ceiling
walls and accessed by a full door with a secure lock that prevents another individual from
entering while the changing facility is in use.
"Unisex restroom" means a room that includes one or more water closets that is intended for a
single-occupant, or a family, and the room is enclosed in floor-to-ceiling walls and accessed by
a full door with a secure lock that prevents another individual from entering while the room is in
use.
"Water closet" means a toilet or urinal.
The bill requires a covered entity that maintains a water closet to, at a minimum, have:
A restroom designated for exclusive use by females and a restroom designated for exclusive
use by males; or
A unisex restroom.
The bill requires a covered entity that maintains a changing facility to, at a minimum, have:
A changing facility designated for exclusive use by females and a changing facility designated
for exclusive use by males; or
A unisex changing facility.
The bill authorizes a person to enter a restroom or changing facility designated for the opposite sex
under the following circumstances:
To accompany another person of the opposite sex for the purpose of assisting or chaperoning a
minor child, elderly person, or disabled person.
For law enforcement or governmental regulatory purposes.
To render emergency medical assistance or to intervene in any other emergency situation
where the health or safety of another person is at risk.
For custodial, maintenance, or inspection purposes, provided that the restroom or changing
facility is not in use.
If the appropriate designated restroom or changing facility is out of order or under repair and the
opposite designated restroom or changing facility contains no person of the opposite sex.
The bill makes it a second degree misdemeanor for a person 18 years of age or older to:
Willfully enter, for a purpose other than those allowed, a restroom or changing facility
designated for the opposite sex; and
Refuse to immediately depart when asked to do so by another person present in the restroom
or changing facility.
A second degree misdemeanor is punishable by a term of up to 60 days imprisonment and a $500
fine.85
The bill requires each educational institution to establish in its code of student conduct disciplinary
procedures for any person under 18 years of age who:
85 Ss. 775.082, and 775.083, F.S.
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Willfully enters, for a purpose other than those purposes allowed, an educational institution
restroom or changing facility designated for the opposite sex; and
Refuses to immediately depart when asked to do so by another person present in the restroom
or changing facility.
The bill requires a domestic violence center under chapter 39, F.S., to provide separate overnight
accommodations for females and males based on their sex. This requirement does not apply to mixed-
sex family units.
The bill requires a correctional institution to house females and males in its custody separately, based
on their sex. This requirement applies to all housing assignments in a correctional institution, including
temporary assignments.
The bill requires covered entities that are required to obtain a license to operate in the state to submit
documentation regarding compliance with the requirements for water closets and changing facilities, as
applicable, upon initial application for such license or on first renewal after July 1, 2023. Failure to
comply can result in licensure or regulatory disciplinary action, as applicable.
The bill exempts individuals born with a genetically or biochemically verifiable disorder of sex
development, including, but not limited to, 46,XX disorder of sex development; 46,XY disorder of sex
development; sex chromosome disorder of sex development; XX or XY sex reversal; and ovotesticular
disorder.
The bill authorizes the Attorney General to:
Bring a civil action to enforce these provisions against any covered entity.
Seek injunctive relief.
Seek to impose a fine of up to $10,000 for any covered entity found to have willfully violated
these provisions.
The bill directs fines collected to be deposited in the General Revenue Fund.
The bill provides severability.
B. SECTION DIRECTORY:
Section 1: Creates s. 553.865, F.S.; providing requirements for exclusive use of restrooms and
changing facilities based on sex.
Section 2: Provides severability.
Section 3: Provides an effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
Indeterminate. The Attorney General is authorized to impose a fine of up to $10,000 for violations.
Fines collected must be deposited in the General Revenue Fund.
2. Expenditures:
Indeterminate.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
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None.
2. Expenditures:
Indeterminate.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Indeterminate.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
This bill may implicate the Equal Protection Clause of the United States Constitution 86 and/or the
similar clause in the Florida Constitution.87 In general, sex-based discrimination by a state
government is subject to intermediate scrutiny. This standard requires the government to show that
its gender classification is substantially related to a sufficiently important government interest. 88
Title VII of the Civil Rights Act of 1964, and Title IX of the Education Amendments Act of 1972, which
prohibit discrimination on the basis of sex, may be implicated. The U.S. Supreme Court has found
that under Title VII, prohibited “sex” discrimination includes prohibiting employers from discriminating
against employees because of an individual’s sexual orientation or gender identity. In this case, the
Court noted that it was only addressing the question of whether employees could be fired under Title
VII for their LGBTQ status and not issues such as “restrooms, locker rooms… or anything else of the
kind.”89
A recent en banc decision by the U.S. Eleventh Circuit Court of Appeals determined that a Florida
school board’s policy requiring students to use the restroom corresponding to their biological sex
comports with both the U.S. Constitution and Title IX. 90 The ruling creates a potential “circuit split”
among the nation’s federal appeals courts because both the Seventh Circuit and the Fourth Circuit
have ruled in favor of students wishing to use the restroom facilities consistent with their “gender
identity” rather than their sex at birth. Such circuit splits make it more likely that the U.S. Supreme
Court may take up the issue to ensure uniformity among the circuits on the issue.
B. RULE-MAKING AUTHORITY:
Covered state agencies may need to promulgate new or revise existing rules to implement the
requirements of the bill.
86 The 14th Amendment reads in pertinent part: "No State shall make or enforce any law which shall . . . deny to an y person within its
jurisdiction the equal protection of the laws."
87 Article I, s. 2, Fla. Const., reads in pertinent part: "All natural persons, female and male alike, are equal before the law…"
88 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
89 Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 1737 (2020).
90 Drew Adams v. School Board of St. John’s County, Florida , No. 18-13592 (December 30, 2022).
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C. DRAFTING ISSUES OR OTHER COMMENTS:
The sponsor has indicated that an amendment will be filed that will clarify applicability.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 28, 2023, the Regulatory Reform & Economic Development Subcommittee adopted one
amendment and reported the bill favorably as a committee substitute. The committee substitute provides
an exception for individuals born with a certain verifiable disorder of sex development.
This analysis is drafted to the committee substitute as passed by the Regulatory Reform & Economic
Development Subcommittee.
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
CS/HB 1521 2023
1 A bill to be entitled
2 An act relating to facility requirements based on sex;
3 creating s. 553.865, F.S.; providing a short title;
4 providing legislative findings; providing definitions;
5 providing requirements for exclusive use of restrooms
6 by gender; providing requirements for exclusive use of
7 changing facilities by gender; providing exceptions;
8 prohibiting willfully entering a restroom or changing
9 facility designated for the opposite sex and refusing
10 to immediately depart when asked to do so by another
11 person present there; providing criminal penalties;
12 providing requirements for exclusive use of domestic
13 violence centers by gender; providing requirements for
14 correctional institutions; requiring entities that
15 receive state licenses to submit compliance
16 documentation; authorizing the Attorney General to
17 bring enforcement actions; authorizing civil
18 penalties; providing for certain funds to be deposited
19 in the General Revenue Fund; providing an exception
20 for individuals born with certain genetically or
21 biochemically verifiable disorders of sex development;
22 providing severability; providing an effective date.
23
24 Be It Enacted by the Legislature of the State of Florida:
25
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26 Section 1. Section 553.865, Florida Statutes, is created
27 to read:
28 553.865 Private spaces.—
29 (1) This section may be cited as the "Safety in Private
30 Spaces Act."
31 (2) The Legislature finds that females and males should be
32 provided restrooms and changing facilities for their exclusive
33 use in order to maintain public safety, decency, and decorum.
34 (3) As used in this section, the term:
35 (a) "Changing facility" means a room in which two or more
36 persons may be in a state of undress in the presence of others,
37 including, but not limited to, a dressing room, fitting room,
38 locker room, changing room, or shower room.
39 (b) "Correctional institution" means any state
40 correctional institution as defined in s. 944.02, juvenile
41 detention center or residential program as described in s.
42 985.03, county or municipal detention facility as defined in s.
43 951.23, private correctional facility as defined in s. 944.710,
44 or any other facility used for the detention of adults or
45 juveniles charged with or convicted of a crime.
46 (c) "Covered entity" means any:
47 1. Educational institution, as defined in s. 768.38.
48 2. Public accommodations, as defined in s. 760.02(11).
49 3. Public shelter space under s. 252.385.
50 4. Service provider, as defined in s. 397.311(44).
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51 5. Health care facility, which means any provider as
52 defined in s. 408.803; a provider with an active health care
53 clinic exemption under s. 400.9935; a continuing care facility
54 with a certificate of authority under chapter 651; an optical
55 establishment permitted under s. 484.007; a massage
56 establishment licensed under s. 480.043, a pharmacy as defined
57 in s. 465.003, an office described in s. 459.0138 which is
58 required to register with the Department of Health; a pain -
59 management clinic registered under s. 458.3265; an electrolysis
60 facility licensed under 478.51; or any health care setting owned
61 or operated by a health care practitioner as defined in s.
62 456.001 or a provider licensed under chapter 394, chapter 397,
63 or part IV of chapter 468.
64 (d) "Female" means a person belonging, at birth, to the
65 biological sex which has the specific reproductive role of
66 producing eggs.
67 (e) "Male" means a person belonging, at birth, to the
68 biological sex which has the specific reproductive role of
69 producing sperm.
70 (f) "Restroom" means a room that includes one or more
71 water closets. This term does not include a unisex restroom.
72 (g) "Sex" means the classification of a person as either
73 female or male based on the organization of the body of such
74 person for a specific reproductive role, as indicated by the
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75 person's sex chromosomes, naturally occurring sex hormones, and
76 internal and external genitalia present at birth.
77 (h) "Unisex changing facility" means a room intended for a
78 single-occupant or a family in which one or more persons may be
79 in a state of undress, including, but not limited to, a dressing
80 room, fitting room, locker room, changing room, or shower room
81 that is enclosed in floor-to-ceiling walls and accessed by a
82 full door with a secure lock that prevents another individual
83 from entering while the changing facility is in use.
84 (i) "Unisex restroom" means a room that includes one or
85 more water closets that is intended for a single-occupant, or a
86 family, and the room is enclosed in floor-to-ceiling walls and
87 accessed by a full door with a secure lock that prevents another
88 individual from entering while the room is in use.
89 (j) "Water closet" means a toilet or urinal.
90 (4) A covered entity that maintains a water closet must,
91 at a minimum, have:
92 (a) A restroom designated for exclusive use by females and
93 a restroom designated for exclusive use by males; or
94 (b) A unisex restroom.
95 (5) A covered entity that maintains a changing facility
96 must, at a minimum, have:
97 (a) A changing facility designated for exclusive use by
98 females and a changing facility designated for exclusive use by
99 males; or
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100 (b) A unisex changing facility.
101 (6) For purposes of this section, a person may enter a
102 restroom or changing facility designated for the opposite sex
103 under the following circumstances:
104 (a) To accompany another person of the opposite sex for
105 the purpose of assisting or chaperoning a minor child, elderly
106 person, or disabled person.
107 (b) For law enforcement or governmental regulatory
108 purposes;
109 (c) For the purpose of rendering emergency medical
110 assistance or to intervene in any other emergency situation
111 where the health or safety of another person is at risk;
112 (d) For custodial, maintenance, or inspection purposes,
113 provided that the restroom or changing facility is not in use;
114 or
115 (e) If the appropriate designated restroom or changing
116 facility is out of order or under repair and the opposite
117 designated restroom or changing facility contains no person of
118 the opposite sex.
119 (7) A person 18 years of age or older who willfully
120 enters, for a purpose other than those listed in subsection (6),
121 a restroom or changing facility designated for the opposite sex
122 and refuses to immediately depart when asked to do so by another
123 person present in the restroom or changing facility commits a
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124 misdemeanor of the second degree, punishable as provided in s.
125 775.082 or s. 775.083.
126 (8) Each educational institution shall establish in its
127 code of student conduct disciplinary procedures for any person
128 under 18 years of age who willfully enters, for a purpose other
129 than those listed in subsection (6), an educational institution
130 restroom or changing facility designated for the opposite sex
131 and refuses to immediately depart when asked to do so by another
132 person present in the restroom or changing facility.
133 (9) A domestic violence center under chapter 39 must
134 provide separate overnight accommodations for females and males
135 based on their sex. This requirement does not apply to mixed -sex
136 family units.
137 (10) A correctional institution must house females and
138 males in its custody separately, based on their sex. This
139 requirement applies to all housing assignments in a correctional
140 institution, including temporary assignments.
141 (11)(a) A covered entity that is required to obtain a
142 license to operate in the state shall submit documentation
143 regarding compliance with subsections (4) and (5), as
144 applicable, upon initial application for such license or on
145 first renewal after July 1, 2023.
146 (b) A covered entity that fails to comply with subsection
147 (4) or subsection (5) shall be subject to penalties under
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148 paragraph (c) and is subject to licensure or regulatory
149 disciplinary action, as applicable.
150 (c) The Attorney General may bring a civil action to
151 enforce this section against any covered entity. The Attorney
152 General may seek injunctive relief, and, for any covered entity
153 found to have willfully violated this section, the Attorney
154 General may seek to impose a fine of up to $10,000.
155 (d) Fines collected pursuant to paragraph (c) must be
156 deposited in the General Revenue Fund.
157 (12) This section does not apply to an individual born
158 with a genetically or biochemically verifiable disorder of sex
159 development, including, but not limited to, 46,XX disorder of
160 sex development; 46,XY disorder of sex development; sex
161 chromosome disorder of sex development; XX or XY sex reversal;
162 and ovotesticular disorder.
163 Section 2. If any provision of this act or its application
164 to any person or circumstances is held invalid, the invalidity
165 does not affect other provisions or applications of the act
166 which can be given effect without the invalid provision or
167 application, and to this end the provisions of this act are
168 severable.
169 Section 3. This act shall take effect July 1, 2023.
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HB 7041
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 7041 PCB RRS 23-01 Space Florida
SPONSOR(S): Regulatory Reform & Economic Development Subcommittee, Sirois
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Regulatory Reform & Economic 14 Y, 0 N Thompson Anstead
Development Subcommittee
1) Commerce Committee Thompson Hamon
SUMMARY ANALYSIS
Established by the Legislature in 2006, Space Florida was created to promote and foster the growth and
development of a sustainable and world-leading aerospace industry in this state. Space Florida is an
independent special district and subject to the provisions of the Uniform Special District Accountability Act,
which governs such issues as operations, financial reporting, taxation, assessments, elections, compliance
with general law, and comprehensive planning. Space Florida officials and employees are subject to public
notice and ethics requirements for officials and employees with few exceptions.
Space Florida is governed by a 13 member independent board of directors (Board), consisting of the 12 private
sector members of the Enterprise Florida, Inc. (EFI), board of directors, who are appointed by the Governor,
President of the Senate, and Speaker of the House of Representatives, plus the Governor or Governor’s
designee, who is a voting member and serves as the chair.
The bill revises provisions governing Space Florida to increase collaboration with public and private
stakeholders regarding spaceport activities, enhance transparency measures regarding spaceport projects,
and makes several revisions to the Board. In part, the bill:
Separates the Board from the EFI board, establishes membership and appointment criteria, term
lengths, prohibits compensation, provides per diem and travel limits, allows electronic meetings, and
provides quorum requirements.
Requires Space Florida to:
o Solicit input on Space Florida plans and activities from the aerospace industry, private sector
spaceport territory stakeholders, each entity that owns or has ownership interest in a facility
within spaceport territory, and other political subdivisions within spaceport territory.
o Solicit input from certain federal aerospace entities and political subdivisions that own facilities
within spaceport territory regarding the spaceport master plan.
o Include additional economic data in the Space Florida annual report to the Governor and
Legislature.
o Explain certain travel and entertainment expenditures and address recent audit findings.
o Assess and report on contracts with service organizations.
Includes Space Florida among the list of economic development programs scheduled to be reviewed
and analyzed by the Office of Economic and Demographic Research (EDR) and the Office of Program
Policy Analysis and Government Accountability (OPPAGA).
Adds Space Florida as an entity that the Department of Economic Opportunity (DEO) has contract
authority over and requires DEO’s annual repot to include Space Florida information.
Requires the Board to conduct new member training using DEO’s board member training program.
The bill does not appear to have a significant fiscal impact on state or local government.
The effective date of the bill is July 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Space Florida
In 2006, the Legislature passed the Space Florida Act,1 which consolidated Florida’s three existing
space entities, the Florida Space Authority, the Florida Space Research Institute, and the Florida
Aerospace Finance Corporation, into a single entity called Space Florida.2 Space Florida is established
as an independent special district, a body politic and corporate, and a subdivision of the state, to foster
the growth and development of a sustainable and world-leading aerospace industry in the state. Space
Florida has all the powers, rights, privileges, and authority as provided under the laws of this state.3
Space Florida acts as Florida’s point of contact for state aerospace-related activities with federal
agencies, the military, state agencies, businesses, and the private sector. 4 Space Florida is authorized
to purchase or construct facilities, set rates, fees, and charges for the use of facilities, and undertake
joint financing with municipalities or private sector entities for any project. 5
According to Space Florida’s 2022 Annual Operations Report, as of July 1, 2022, Space Florida had 85
total projects in development with an estimated value of $2.4 billion in capital investment, and provided
$4.3 million in funding for 30 research projects, partnerships, and grants.6
Powers of Space Florida
In furtherance of its duties, Space Florida is given certain powers, including, but not limited to:7
Using a corporate seal;
Using patents, copyrights and trademarks;
Lending and investing money;
Acquiring certain properties;
Executing contracts;
Issuing revenue bonds;
Making expenditures for entertainment and travel expenses and business clients, guests, and
other authorized persons; and
Fixing and collecting fees, loan payments, rental payments, and other charges in connection
with financing agreements.
Duties of Space Florida
In order to implement the Space Florida Act and carry out spaceport operations, Space Florida is given
certain duties, including, but not limited to, creating a business plan, entering into agreements and
cooperating with other state agencies, and consulting with appropriate federal agencies. 8
Specifically, Space Florida is required to:
1 Ch. 2006-60, Laws of Fla.
2 See ss. 331.301 through 331.371, F.S.
3 S. 331.302, F.S.
4 S. 331.3011, F.S.
5 S. 331.305, F.S.
6 Space Florida, Space Florida Annual Report 2022, https://www.spaceflorida.gov/wp-content/uploads/2023/01/Space-Florida-FY22-
Annual-Operating-Report.pdf (last visited Feb. 27, 2023).
7 S. 331.305, F.S.
8 S. 331.3051, F.S.
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Enter into agreements with the Department of Education (DOE), the Department of
Transportation (DOT), Enterprise Florida, Inc. (EFI), and CareerSource Florida, Inc. (CSF).9
In cooperation with EFI, develop a plan to retain, expand, attract, and create aerospace industry
entities, public or private, which results in the creation of high-value-added businesses and jobs
in this state.10
Develop, in cooperation with EFI, a plan to provide financing assistance to aerospace
businesses.11
Carry out its responsibilities for spaceport operations by: 12
o Seeking federal support and developing partnerships to renew and upgrade the
infrastructure and technologies at the Cape Canaveral Air Force Station, the John F.
Kennedy Space Center, and the Eastern Range.
o Supporting federal efforts to clarify roles and responsibilities of federal agencies in an
effort to streamline access for commercial launch users.
o Pursuing the development of commercial spaceports in the state in partnership with
counties or municipalities, the Federal Government, or private entities.
o Promoting and facilitating launch activity within the state by supporting and assisting
commercial launch operators’ interactions with federal agencies for launching from
Florida.
o Consulting, as necessary, with the appropriate federal, state, and local authorities,
including the National Aeronautics and Space Administration (NASA), Federal Aviation
Administration (FAA), Department of Defense (DOD), DOT, Florida National Guard, and
industry on establishing and operating spaceport infrastructure and facilities in the state.
Annual Reports
Space Florida is required to provide an annual report to the Governor, the President of the Senate, and
the Speaker of the House of Representatives on its performance with respect to its business plan,
financing, spaceport operations, research and development, workforce development, and education.
Space Florida is required to submit the report by November 30 for the previous fiscal year. The annual
report must include operations information from its annual report of operations.13
Annual Report of Operations
The Space Florida board of directors is required to prepare an annual report of operations as a
supplement to the annual report. The report must include, but not be limited to, a balance sheet, an
income statement, a statement of changes in financial position, a reconciliation of changes in equity
accounts, a summary of significant accounting principles, the auditor’s report, a summary of the status
of existing and proposed bonding projects, comments from management about the year’s business,
and prospects for the next year.14
Transportation and Public Utilities Facilities
Space Florida is authorized to:15
Own, acquire, construct, reconstruct, equip, operate, maintain, extend, or improve
transportation facilities appropriate to meet the transportation requirements of Space Florida
and activities conducted within spaceport territory;
Own, acquire, construct, reconstruct, equip, operate, maintain, extend, or improve electric
power plants, transmission lines and related facilities, gas mains and facilities of any nature for
the production or distribution of natural gas, transmission lines and related facilities and plants
9 S. 331.3051(2), F.S.
10 S. 331.3051(3), F.S.
11 S. 331.3051(6), F.S.
12 S. 331.3051(7), F.S.
13 S. 331.3051(11), F.S.
14 S. 331.310(2)(e), F.S.
15 S. 331.305(12) and (13), F.S.
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and facilities for the generation and transmission of power through traditional and new and
experimental sources of power and energy;
Purchase electric power, natural gas, and other sources of power for distribution within any
spaceport territory;
Develop and operate water and sewer systems and waste collection and disposal; 16 and
Develop and operate such new and experimental public utilities, including, but not limited to,
centrally distributed heating and air-conditioning facilities and services, closed-circuit television
systems, and computer services and facilities, as the board may from time to time determine.
Space Florida Board of Directors
Space Florida is governed by a 13 member17 independent board of directors (Space Florida Board).
The Governor, or the Governor’s designee, is a voting member and serves as the chair. 18 The 12
appointed private sector members of the EFI board of directors also serve, by default, on the Space
Florida Board and are appointed to four-year terms.19
The duties of the Space Florida Board include:20
Adopting rules and orders to conduct the business of Space Florida, the maintenance of
records, and the form of all documents and records of Space Florida.
Maintaining an executive office and Space Florida offices in close proximity to the John F.
Kennedy Space Center.
Appointing a president of Space Florida, and determining his or her title, functions, duties,
powers, and salary.
Abiding by all applicable federal labor laws in the construction and day-to-day operations of
Space Florida and any spaceport.
Preparing the annual report of operations as a supplement to its annual report, which is also
required by law.
The Space Florida Board is authorized to exercise the following powers: 21
Enter, and authorize any agent or employee of Space Florida to enter, upon any lands, waters,
and premises, upon giving reasonable notice and due process to the land owner, for the
purposes of making surveys, soundings, drillings, appraisals, and examinations necessary to
perform its duties and functions.
Execute all contracts and other documents, adopt all proceedings, and perform all acts
determined by the Space Florida Board to be necessary or desirable to carry out the purposes
given it in statute.
Establish and create such departments, committees, or other entities as from time to time the
Space Florida Board deems necessary or desirable in the performance of any acts or other
things necessary to the exercise of the powers provided in statute.
Provide financial services to support aerospace-related business development within the state.
Financial services may include, but are not limited to:
o Insuring, coinsuring, or originating for sale direct aerospace-related loans.
o Direct lending.
o Guaranteeing and collateralizing loans.
o Creating accounts.
o Capitalizing, underwriting, leasing, selling, or securing funding for aerospace-related
infrastructure.
o Investing in permissible securities.
o Organizing financial institutions and international bank syndicates.
16 This must be done consistent with ch. 88-130, Laws of Fla.
17 Six members are appointed by the Governor, three members are appointed by the President of the Senate, and three members are
appointed by the Speaker of the House of Representatives. S. 288.901(5)(a)7., F.S.
18 S. 331.3081, F.S.
19 S. 288.901(5)(a)8., F.S.
20 S. 331.310(2), F.S.
21 S. 331.310(1), F.S.
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o Acquiring, accepting, or administering grants, contracts, and fees from other
organizations to perform activities that are consistent with the purposes of Space
Florida’s business plan. If the Space Florida Board deems a financial services entity is
necessary, the Space Florida Board may create, form, or contract with one or more such
entities.
Examine, and authorize any officer or agent of Space Florida to examine, the county tax rolls
with respect to the assessed valuation of the real and personal property within any spaceport
territory.
Engage in the planning and implementation of space-related economic and educational
development within the state.
Provide the strategic direction for the aerospace-related research priorities of the state and its
aerospace-related businesses.
Execute intergovernmental agreements and development agreements consistent with prevailing
statutory provisions, including, but not limited to, special benefits or tax increment financing
initiatives.
Establish reserve funds for future Space Florida Board operations.
Adopt rules to carry out the purposes of the Space Florida Act.
Travel and Entertainment Expenses
Notwithstanding the provisions for per diem and travel expenses for public officers, employees, and
authorized persons, and the statewide travel management system,22 Space Florida is required to adopt
rules for travel and entertainment expenses that:23
Make expenditures by advancement or reimbursement, or a combination thereof, to Space
Florida officers and employees;
Reimburse business clients, guests, and authorized persons;24 and
Make direct payments to third-party vendors.
The travel and entertainment expenses of business clients, guests, and authorized persons must be
incurred by Space Florida in connection with the performance of its statutory duties. The travel
expenses of state officials and employees must be incurred while accompanying business clients,
guests, or authorized persons or when authorized by the Space Florida Board or its designee. The
entertainment expenses for Space Florida officials and employees must be incurred while in the
physical presence of such business clients, guests, or authorized persons.25
The travel and entertainment rules are subject to approval by the Chief Financial Officer (CFO) before
adoption, and are prescribed as follows:26
Must require the submission of paid receipts, or other proof prescribed by the CFO, with any
claim for reimbursement.
Must require, as a condition for any advancement, an agreement to submit paid receipts or
other proof and to refund any unused portion of the advancement within 15 days after the
expense is incurred or, if the advancement is made in connection with travel, within 15 days
after completion of the travel.
With respect to an advancement made solely for travel expenses, the rules may allow paid
receipts or other proof to be submitted, and any unused portion of the advancement to be
refunded, within 30 days after completion of the travel.
22 S. 112.061, F.S.
23 S. 331.3101, F.S.
24 “Authorized persons” are defined in s. 112.061(2)(e), F.S., as a person other than a public officer or employee, whether elected or
commissioned or not, who is authorized by an agency head to incur travel expenses in the performance of official duties; called upon
by an agency to contribute time and services as consultant or adviser; a candidate for an executive or professional position.
25 S. 331.3101(1), F.S.
26 S. 331.3101(2), F.S.
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An annual report must be made to the Legislature not later than November 30 of each year for the
previous fiscal year that consists of a synopsis concisely summarizing all travel, entertainment, and
incidental expenses incurred inside and outside of the U.S.27
Claims are not required to be sworn to but are required to contain a statement that the expenses were
necessary in the performance of official duties of Space Florida and verified by written declaration.28
Untrue or incorrect claims, and fraudulent or false claims, are a second degree misdemeanor,
punishable by a term of imprisonment of up to 60 days 29 and a $500 fine.30 Whoever receives an
advancement or reimbursement by means of a false claim is civilly liable, in the amount of the
overpayment, for the reimbursement of the public fund from which the claim was paid.31
Effective July 1, 2022 through July 1, 2023, Space Florida is required to adhere to certain travel and
entertainment restrictions. In addition to the requirements set forth for the annual report summarizing all
travel, entertainment, and incidental expenses, the 2022 annual report by Space Florida must also:
Provide an itemized accounting, by date of travel, of all travel, entertainment, and incidental
expenses incurred;
To the extent such expenses exceed the generally allowable expense limits for per diem and
travel expenses of public officers, employees, and authorized persons, provide reasons behind
the need to exceed such statutory expense limits;
Categorize expenses for Space Florida Board members, staff, employees, and business clients.
The report must also set forth any expenses authorized by the Space Florida Board or its
designee for a guest; and
Include information related to corrective actions and steps taken by Space Florida to address
the findings in Auditor General Report No. 2022-049.32
Furnishing Facilities and Services within the Spaceport Territory
Space Florida is authorized to construct, develop, create, maintain, and operate its projects within the
geographical limits of the spaceport territory. This includes any portions of the spaceport territory
located inside the boundaries of any incorporated municipality or other political subdivision.33
Space Florida is authorized to offer, supply, and furnish the facilities and services provided for in the
Space Florida Act, and establish and collect fees, rentals, and other charges, within the geographical
limits of the spaceport territory and for the use of Space Florida itself.34
Power of Space Florida with Respect to Roads
Within the territorial limits of any spaceport territory, Space Florida is authorized to acquire, through
purchase or interagency agreement, or as otherwise provided in law, to construct, control, and
maintain, roads, connections and extensions that it deems necessary in accordance with established
highway safety standards.35
If a road being addressed by Space Florida is owned by another agency or jurisdiction, Space Florida,
before proceeding with the proposed project or work activity, must coordinate the desired work with the
owning agency or jurisdiction or successfully execute an interagency agreement with the owning
agency or jurisdiction.36
27 S. 331.3101(3), F.S.
28 S. 331.3101(4), F.S.
29 S. 775.082(4)(b), F.S.
30 S. 775.083(1)(e), F.S.
31 Id.
32 State of Florida Auditor General, SPACE FLORIDA Board Duties and Governance and Selected Administrative Activities,
https://flauditor.gov/pages/pdf_files/2022-049.pdf (last visited Mar. 1, 2023).
33 S. 331.312, F.S.
34 Id.
35 S. 331.313, F.S.
36 Id.
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Contracts, Grants and Contributions
Space Florida is authorized to:37
Make and enter all contracts and agreements necessary or incidental to the performance of its
functions and execution of its powers.
Contract with, and accept and receive grants or loans of money, material, or property from, any
person, private or public as the Space Florida Board determines necessary or desirable to carry
out the purposes of the Space Florida Act.
In connection with any such contract, grant, or loan, stipulate and agree to such covenants,
terms, and conditions as the Space Florida Board deems appropriate.
Spaceport Master Plan
Space Florida is required to develop a spaceport master plan for expansion and modernization of
space transportation facilities within spaceport territories. The plan must contain recommended projects
to meet current and future commercial, national, and state space transportation requirements. 38
Space Florida is required to submit the plan to:39
Any appropriate metropolitan planning organization for review of intermodal impacts.
DOT, and it may be included within DOT’s five-year work program of qualifying aerospace
discretionary capacity improvement.
The plan must identify appropriate funding levels and include recommendations on appropriate sources
of revenue that may be developed to contribute to the State Transportation Trust Fund. 40
Special Districts
Space Florida is an independent special district, and subject to the provisions of the Uniform Special
District Accountability Act, to the extent that the provisions of that act do not conflict with the Space
Florida Act.41 The Uniform Special District Accountability Act sets forth the general provisions for all
special districts, addressing such issues as creation, operation, financial reporting, taxation,
assessments, elections, definitions, compliance with general law, and comprehensive planning.42
A "special district" is a unit of local government created for a particular purpose, with jurisdiction to
operate within a limited geographic boundary.43 Special districts are created by general law,44 special
act,45 local ordinance,46 or by rule of the Governor and Cabinet.47 A special district has only those
powers expressly provided by, or reasonably implied from, the authority provided in the district’s
charter.48 Special districts provide specific municipal services in addition to, or in place of, those
provided by a municipality or county.49
37 S. 331.324, F.S.
38 S. 331.360(3), F.S.
39 Id.
40 Id.
41 S. 331.302, F.S.
42 Ch. 189, F.S.
43 See Halifax Hospital Medical Center v. State of Fla., et al., 278 So. 3d 545, 547 (Fla. 2019).
44 S. 189.031(3), F.S.
45 Id.
46 S. 189.02(1), F.S.
47 S. 190.005(1), F.S. See, generally, s. 189.012(6), F.S.
48 Halifax Hosp. Med. Center, supra at 548.
49 Local Gov’t Formation Manual at p. 58, available at
https://myfloridahouse.gov/Sections/Documents/loaddoc.aspx?PublicationType=Committees&CommitteeId=3227&Session=2023&D
ocumentType=General+Publications&FileName=2022+Local+Govern ment+Format ion+Manual.pdf (last visited Jan. 25, 2023).
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A “dependent special district” is a special district where the membership of the governing body is
identical to the governing body of a single county or municipality, all members of the governing body
are appointed by the governing body of a single county or municipality, members of the district’s
governing body are removable at will by the governing body of a single county or municipality, or the
district’s budget is subject to the approval of governing body of a single county or municipality. 50 An
“independent special district” is any district that is not a dependent special district 51 and may only be
created by legislative authorization as provided in the Uniform Special District Accountability Act.52
Special districts do not possess “home rule” powers and may impose only those taxes, assessments,
or fees authorized by special or general law. The special act creating an independent special district
may provide for funding from a variety of sources while prohibiting others. For example, ad valorem tax
authority is not mandatory for a special district.53
Special districts may enter into interlocal agreements with one or more other local governmental units.54
Under such an agreement, the special district may exercise jointly with the other participating local
governments those powers, privileges, or authorities which they have in common and each may
exercise separately.55
Special District Charter
The charter of a newly-created district must state whether it is dependent or independent. 56 Charters of
independent special districts must address and include a list of required provisions, including the
purpose of the district, its geographical boundaries, taxing authority, bond authority, and selection
procedures for the members of its governing body.57
Specifically, the charter creating an independent special district must contain the following: 58
The purpose of the special district;
The powers, functions and duties of the special district relating to ad valorem taxes, bonds and
other revenue-raising abilities, budget preparation and approval, liens and lien foreclosures, and
the use of tax deeds and certificates for non-ad valorem assessments and contractual
agreements;
A method for establishing the district and amending the district charter;
The membership, organization, compensation, and administrative duties of the governing board
and its members;
Applicable financial disclosures, noticing, and reporting requirements;
Procedures and requirements for bond issues, if the special district will issue bonds;
Election procedures and requirements;
A method for financing the district;
Authorized millage rate, and methods for collecting non-ad valorem assessments, fees, or
service charges;
Planning requirements; and
District boundaries.
Special District Accountability
50 S. 189.012(2), F.S.
51 S. 189.012(3), F.S.
52 S. 189.011(1), F.S.
53 Art. VII, s. 9(a), Fla. Const.
54 S. 163.01(2), (3)(b), F.S.
55 S. 163.10(4), F.S.
56 S. 189.031(5), F.S.
57 S. 189.031(3), F.S.
58 S. 189.031, F.S.
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The Uniform Special District Accountability Act establishes a Special District Accountability Program
administered by the Department of Economic Opportunity (DEO) that provides certain oversight and
accountability measures that special districts must follow. Some of the duties of the program include:59
Electronically publishing special district noncompliance status reports from the Department of
Management Services (DMS), the Department of Financial Service (DFS)s, the Division of Bond
Finance of the State Board of Administration (SBA), the Auditor General, and the Legislative
Auditing Committee.
Maintaining the official list of special districts.
Publishing and updating of a “Florida Special District Handbook.”
Coordinating and communicating among state agencies regarding special districts.
Providing technical advisory assistance to special districts.
Providing assistance to local general-purpose governments and state agencies in collecting
delinquent reports or information.
Helping special districts comply with reporting requirements.
Declaring special districts inactive when directed by the Joint Legislative Auditing Committee
(JLAC) or required by the Uniform Special District Accountability Act.
Initiating certain enforcement proceedings for failure to file reports and information.
The Uniform Special District Accountability Act requires special districts to comply with many of the
same accountability standards as those of counties and municipalities and state government. Examples
of these standards include:60
Filing an Annual Financial Report with DFS disclosing the district's revenues, expenditures,
long-term debt, and other financial information.
Filing a Financial Audit Report, performed by an independent Certified Public Accountant, with
the Florida Auditor General for review (most but not all special districts).
Filing information with the SBA concerning advance notice of bond sales and new bond issues.
Certifying to the state compliance with Truth-in-Millage requirements (if establishing a property
tax).
Complying with ethics laws, including financial disclosures by governing board members and
certain employees.
Conducting district business within the Government-in-the-Sunshine laws, including specific
public meeting requirements.
Special District Oversight
Special districts may be reviewed for general oversight purposes as follows: 61
Each special district created by special act may be reviewed by the Legislature using the
process provided in s. 189.0651, F.S.
Each special district created by local ordinance or resolution may be reviewed by the local
general-purpose government that enacted the ordinance or resolution using the process
provided in s. 189.0652, F.S.
Each dependent special district not created by special act may be reviewed by the local
general-purpose government upon which it is dependent.
All special districts created or established by rule of the Governor and Cabinet may be reviewed
as directed by the Governor and Cabinet.
All other special districts may be reviewed as directed by the President of the Senate and the
Speaker of the House of Representatives.
Certain state agencies are responsible for monitoring special districts and collecting, reviewing,
interpreting, and summarizing financial information for the public, the Legislature and other officials.
59 S. 189.064, F.S.
60 Department of Economic Opportunity, Special District Accountability and Oversight, https://floridajobs.org/community-planning-
and-development/special-districts/special-district-accountability-program/special-district-accountability-and-oversight (last visited
Mar. 1, 2023).
61 S. 189.068, F.S.
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Therefore, each special district must submit the following reports and filings to various state and local
agencies and the Legislature, as applicable:62
The Annual Financial Report;
The Financial Audit Report;
Bond financing related reports;
Retirement system reports;
Public facilities reports;
Designation of registered office and agent;
Regular Public Meeting Schedule;
Charters (creation document), as amended; and
Boundary maps, as amended.
Failure to File Reports or Information
Depending on the issue, when special districts fail to comply with a requirement, state and local
agencies, as well as citizens, can take action. For example:63
Citizens can file ethics complaints with the Florida Commission on Ethics.
The appropriate oversight entity, depending on how the special district was created, may
conduct a general oversight review process (applies to most, but not all, special districts).
The Governor may suspend or remove a special district governing body member under certain
circumstances.
The entity that created the special district can amend, merge, or dissolve the special district.
The state attorney for the area can investigate and prosecute district officials who violate
Government-in-the-Sunshine laws.
JLAC can send state auditors to a district if something warrants such action.
JLAC and/or DMS can request DEO to file a petition in the Leon County circuit court to compel
compliance when special districts fail to file certain financial reports with the state.
JLAC, at the direction of the President of the Senate and the Speaker of the House of
Representatives, may convene a public hearing on the issue of noncompliance concerning any
special district created by special act that fails to file certain financial information with the state.
The chair of a county or municipality may convene a public hearing on the issue of
noncompliance concerning any special district it created that fails to file certain financial
information with the state.
DEO can declare special districts inactive under certain circumstances.
Education for New District Board Members
DEO is authorized to provide, contract for, or assist in conducting education programs, as its budget
permits, for all newly elected or appointed members of district governing bodies. The education
programs must include, but are not limited to, courses on:64
The code of ethics for public officers and employees;
Public meetings and public records requirements;
Public finance; and
Parliamentary procedure.
Currently, members of special districts are not considered “Elected Municipal Officers” subject to the
annual ethics training requirement found in s. 112.3142, F.S. 65
Special District Meetings, Public Records and Public Notice Requirements
62 Id.
63 Id.
64 S. 189.063(1), F.S.
65 Department of Economic Opportunity, Florida Special District Handbook, (Oct. 2022),https://www.floridajobs.org/docs/default-
source/2015-community-development/community-assistance/sdap/florida-special-district-handbook.pdf?sfvrsn=152e57b0_2 (last
visited Mar. 1, 2023).
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Special districts, along with counties, municipalities, and other governmental agencies, must comply
with Florida’s public meetings requirements, also known as the "Sunshine Law,"66 public records
requirements in Florida’s public records law,67 and the public notice requirements in the Florida laws
that govern legal and official advertisements.68
In addition, special districts must comply with specific meeting requirements in the Uniform Special
District Accountability Act, and certain special districts may need to comply with meeting requirements
in other laws. Meeting requirements under the act require that a district: 69
Quarterly, semiannually, or annually, prepare a schedule of regular meetings that includes the
date, time, and location of each meeting.
File the schedule with each local governing authority in which the special district has jurisdiction.
Publish the schedule in the county or counties in which the special district has jurisdiction.
For any meeting other than a regular meeting or any recessed and reconvened meeting,
advertise in the county or counties in which the special district has jurisdiction the day, time,
place, and purpose of such meeting at least seven days before the meeting.
In the event of an emergency, provide reasonable notice in the county or counties in which the
special district has jurisdiction, hold the emergency meeting, and subsequently ratify the
emergency meeting. Do not approve the annual budget at an emergency meeting.
Special District Ethics Laws and Disclosures
Florida’s Code of Ethics was created to help prevent conflicts between public duty and private interests,
and ensure that public sector employees and officers will not abuse their public positions in order to
obtain a disproportionate benefit or misuse their government office for private gain.70 All special district
local officers and special district employees must comply with Florida's ethics laws. 71
The Code of Ethics defines a “local officer” in part to include any appointed member of an independent
special district or other political subdivision of the state.72
The following public officers and employees of a special district must file ethics disclosures: 73
A person elected to a special district's governing body.
A person appointed to complete an unexpired term.
A person appointed to a special district's governing body.
A person seeking nomination or election to a special district's governing body.
A special district's chief administrative employee.
A fire chief of a fire control special district.
A special district purchasing agent making purchases more than $35,000.
Each January, the Florida Commission on Ethics (Commission) receives updates from all counties,
municipalities, and special districts regarding who must file a Statement of Financial Interests. The
Commission then provides a list of those who must file this form to all county supervisors of elections.
All special district local officers and specified employees must file this form. They may also need to file
additional disclosures, depending upon their position, businesses, or interests.74
66 Ch. 286, F.S.
67 Ch. 119, F.S.
68 Ch. 50, F.S.
69 S. 189.015, F.S.
70 Ch. 112, Part III, F.S., and Article II, Section 8, Fla. Const.
71 Department of Economic Opportunity, Florida Special District Handbook, (Oct. 2022),https://www.floridajobs.org/docs/default-
source/2015-community-development/community-assistance/sdap/florida-special-district-handbook.pdf?sfvrsn=152e57b0_2 (last
visited Mar. 1, 2023).
72 S. 112.3145(1)(a), F.S.
73 S. 112.3144, F.S.
74 Id.
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Any person who does not file this form is subject to automatic fines of $25 for each late day, up to a cap
of $1,500. Modeled after the automatic fine system in place for campaign finance reports, the
Commission can hear appeals and has the power to waive fines under limited circumstances. 75
Any person who fails to file their annual disclosure is subject to automatic complaint proceedings to
determine if the failure to file was willful. If the Commission determines that the person willfully failed to
file their disclosure form, the Commission will enter an order recommending that the officer or
employee be removed from office or employment.76
Special district local officers and employees are prohibited from:77
Doing business with their special district.
Entering into a conflicting employment or contractual relationship with any other special district
local officer, employee, their spouse and/or their children.
Certain limited exemptions apply to these prohibitions, such as the following:78
The business is awarded under a system of sealed competitive bidding.
The special district local officer has exerted no influence on bid negotiations or specifications .
Disclosure is made, before or at the time of the submission of the bid, of the special district local
officer's or employee's or his or her spouse's or child's interest and the nature of the intended
business.
A special district local officer must abstain from voting on the following measures: 79
One that inures to his or her special private gain or loss.
One that inures to the special gain or loss of a principal (other than a government agency) by
whom he or she is retained.
One that could result in special private gain or loss to a relative.
One that could result in special private gain or loss to a business associate.
Gifts
Gifts valued at more than $100 from vendors, lobbyists, or political committees, are prohibited. Special
district local officers and specified employees may not solicit any gift, including food or beverage, from
the following:80
A political committee.
A lobbyist who has lobbied that special district local officer's or specified employee's special
district within the past 12 months.
A partner, firm, employer, or principal of a lobbyist.
A vendor.
A special district local officer or employee may accept a gift valued between $25 and $100 from a
lobbyist. However, the person giving the gift must report the gift to the Commission and notify the
special district local officer that they will disclose the gift as required. 81
A special district local officer or employee may not directly or indirectly accept a gift worth more than
$100 from a lobbyist. However, they may accept it on behalf of the special district. Then, the special
district local officer or specified employee must promptly transfer the gift to the special district. 82
75 S. 112.3144(8)(f), F.S.
76 S. 112.3144(9), F.S...
77 S. 112.313, F.S...
78 Id.
79 S. 112.3143, F.S.
80 S. 112.3148, F.S.
81 Department of Economic Opportunity, Florida Special District Handbook, (Oct. 2022), https://www.floridajobs.org/docs/default-
source/2015-community-development/community-assistance/sdap/florida-special-district-handbook.pdf?sfvrsn=152e57b0_2 (last
visited Mar. 1, 2023).
82 Id.
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Penalties for Code of Ethics Violations
Non-criminal penalties for code of ethics violations for special district officers and employees include:83
Impeachment.
Removal or suspension from office or employment.
Public censure, reprimand, demotion, or salary reduction.
A civil penalty up to $10,000.
Restitution of pecuniary benefits they received.
Non-criminal penalties for candidates seeking election to a special district's governing body: 84
Disqualification from being on the ballot.
Public censure or reprimand.
A civil penalty up to $10,000.
Non-criminal penalties for former special district local officers and employees include:85
Public censure and reprimand.
A civil penalty up to $10,000.
Restitution of pecuniary benefits they received.
Special district officers or employees convicted in a court of law of a specified felony offense involving
their public office or employment is subject to forfeiture of retirement benefits. Examples of such
offenses include the following felonies: embezzlement or theft of public funds, bribery, impeachable
offenses, threatening a public servant and defrauding the public or the special district.86
Violations of the gift law and/or honorarium provisions by a lobbyist may result in:87
A fine up to $5,000.
A two-year ban from lobbying, or employing someone to lobby, before the agency of the person
to whom the gift or honorarium was given.
Confidentiality of Records
Current law contains a number of provisions that make certain information held by an economic
development agency, including Space Florida, exempt or confidential and exempt 88 from public records
requirements.89 This includes information regarding plans to locate or relocate a business, trade
secrets, proprietary confidential business information, sales tax registration numbers, and information
held pursuant to an economic incentive program or loan program. Some of the exemptions are
temporary and some are permanent.
Information concerning a corporation’s plans to relocate or expand any of its business activities in the
state is confidential and exempt, as follows: 90
For 12 months after the date an economic development agency receives a request for
confidentiality or until the information is otherwise disclosed;
83 S. 112.317, F.S.
84 Id.
85 Id.
86 Id.
87 S. 112.3148, F.S.
88 There is a difference between records the Legislature designates as exempt from public record requirements and those the
Legislature deems confidential and exempt. A record classified as exempt from public disclosure may be disclosed under certain
circumstances. See WFTV, Inc. v. The School Board of Seminole, 874 So. 2d 48, 53 (Fla. 5th DCA 2004), review denied 892 So. 2d
1015 (Fla. 2004); City of Riviera Beach v. Barfield, 642 So. 2d 1135 (Fla. 4th DCA 1994); Williams v. City of Minneola, 575 So. 2d
687 (Fla. 5th DCA 1991). If the Legislature designates a record as confidential and exempt from public disclosure, such record may
not be released by the custodian of public records to anyone other than the persons or entities specifically designated in st atute. See
Attorney General Opinion 85-62 (August 1, 1985).
89 See s. 288.075, F.S.
90 S. 288.075(2), F.S.
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An economic development agency may extend the period of confidentiality for up to 12 months
upon written request by the entity that originally requested confidentiality and upon a finding by
the economic development agency that such entity is still actively considering locating,
relocating, or expanding its business activities in this state. Such a request must be received
prior to the expiration of the original period.
If a final project order for a signed economic development agreement is issued, then the
information remains confidential and exempt for 180 days after the final project order is issued,
until a date specified in the final project order, or until the information is otherwise disclosed,
whichever occurs first. However, the 180 day timeframe may not extend beyond the original or
extended period.
Proprietary confidential business information is confidential and exempt until the information becomes
publicly available or is no longer treated by the proprietor as confidential.91
Specific sales, employee wage, and tax information associated with the administration of an economic
incentive program for qualified businesses is confidential and exempt for the duration of the incentive
agreement or upon termination of the agreement.92 The following information is protected:
The percentage of the business’s sales occurring outside this state and for businesses applying
for the qualified defense contractor and space flight business tax refund program under s.
288.1045, F.S., the percentage of the business’s gross receipts derived from Department of
Defense contracts during the five years immediately preceding the date the business’s
application is submitted.
An individual employee’s personal identifying information that is held as evidence of the
achievement or nonachievement of the wage requirements of the tax refund, tax credit, or
incentive agreement programs or of the job creation requirements of such programs.
The amount of:
o Taxes on sales, use, and other transactions;
o Corporate income taxes;
o Intangible personal property taxes;
o Insurance premium taxes;
o Excise taxes;
o Ad valorem taxes; or
o State communications services taxes.
However, an economic development agency may disclose in the annual incentives report
required under s. 288.907, F.S., the aggregate amount of each of these taxes paid by all
businesses participating in each economic incentive program.
The following information held by an economic development agency relating to a specific business
participating in an economic incentive program is no longer confidential or exempt 180 days after a final
project order for an economic incentive agreement is issued, until a date specified in the final project
order, or if the information is otherwise disclosed, whichever occurs first: 93
The name of the qualified business.
The total number of jobs the business committed to create or retain.
The total number of jobs created or retained by the business.
Notwithstanding s. 213.053(2), the amount of tax refunds, tax credits, or incentives awarded to,
claimed by, or, if applicable, refunded to the state by the business.
The anticipated total annual wages of employees the business committed to hire or retain.
For a business applying for the qualified defense contractor and space flight business tax refund
program under s. 288.1045, F.S., which is based on obtaining a new Department of Defense contract,
the total number of jobs expected and the amount of tax refunds claimed may not be released until the
new Department of Defense contract is awarded.94
91 S. 288.075(4), F.S.
92 Ss. 288.075(6), F.S.
93 S. 288.075(6)(b)1., F.S.
94 S. 288.075(6)(b)2., F.S.
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Trade secrets, federal employer identification numbers, reemployment assistance account numbers,
and Florida sales tax registration numbers are permanently exempt from public records. 95
Information held by an economic development agency pursuant to its administration of a state or
federally funded small business loan program is exempt from inspection by the public. Disclosure of
such information is authorized in an aggregated and anonymized format.96
An employee of an economic development agency who violates these provisions commits a second
degree misdemeanor, punishable by a maximum penalty of 60 days in jail and a $500 fine.97
Legislative Budget Commission
The Legislative Budget Commission (LBC) is a standing joint committee of the Legislature98 that is
authorized to oversee certain aspects of the implementation of the approved budget for the State of
Florida. The LBC is empowered to ratify certain adjustments to the budget as recommended by the
Governor or the Chief Justice of the Supreme Court. The LBC’s responsibilities include:
Reviewing and approving or disapproving agency requests to amend original approved
budgets;99
Reviewing agency spending plans;100
Reviewing the recommendations of the Technology Review Workgroup regarding information
technology issues;101 and
Taking other actions related to the fiscal matters of the state, as authorized by law.
The LBC is required to answer budget questions that may arise throughout the year 102 and ensure that
the funding for the executive and judicial branches remains appropriate and sufficient until the
Legislature reconvenes for the following Legislative Session.
There are three levels of LBC oversight for proposed agency actions impacting the implementation of
the state budget: approval, consultation, and notification. Examples of some of the types of proposed
actions that require the LBC’s approval or review include:103
Visit Florida contracts with a total cost of $750,000 or more.104
EFI contracts with a total cost of $750,000 or more.105
Funds awarded under the Quick Action Closing Fund that exceed $5 million.106
Funds awarded under the Innovative Incentive Program. 107
Changes in the amounts appropriated from trust funds in excess of $1 million.108
The transfer of General Revenue appropriations for operations in the executive branch or
judicial branch in excess of the amount authorized in ss. 216.292(2) and (3), F.S. 109
The transfer of appropriations in the executive branch or the judicial branch for fixed capital
outlay.110
95 Ss. 288.075(3) and (5), F.S.
96 S. 288.075(7), F.S.
97 Ss. 775.082 and 775.083, F.S.
98 Art. 3, s. 19, Fla. Const., s. 11.90, F.S.
99 S. 216.181(2) F.S.
100 S. 11.90 F.S.
101 S. 216.0446 F.S
102 S. 216.177(1)(b) F.S.
103 Other examples include: ss. 216.011(1), F.S.; 216.181(10)(a), F.S.; 216.292(4)(b), F.S.; 216.292(4)(d), F.S.; 216.216, F.S.;
252.37(2), F.S.; 339.135(6)(c), F.S.; 339.135(7)(g), F.S.; 402.80, F.S.;
104 S. 288.1226, F.S.
105 S. 288.903(7), F.S.
106 S. 288.1088(3)(c)4., F.S.
107 S. 288.1089(7), F.S.
108 S. 216.181(11), F.S.
109 S. 216.292(4)(a), F.S.
110 S. 216.292(4)(c), F.S.
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The initiation of new programs or changes in current programs in the executive branch or the
judicial branch that are not contemplated by the General Appropriations Act.111
The transfer of funds from a school district’s class size reduction operating categorical to the
district’s approved fixed capital outlay account for class size reduction.112
Actions increasing the number of positions authorized by the legislature for executive branch
agencies and judicial branch entities.113
Notice of budget amendments must be provided to the chair and vice chair of the LBC at least 14 days
prior to the action or at least 3 days prior to a release of funds. The chair and vice chair of the LBC or
the presiding officers of the Legislature may void a budget action if notice is provided in writing to the
Governor, for the executive branch, or the Chief Justice, for the judicial branch, that such action
exceeds delegated authority or is contrary to legislative policy and intent. If such notice is given, the
Governor or Chief Justice must void such budget action until the LBC or Legislature addresses the
issue.114
Space Florida Auditor General Report No. 2022-049
In 2021, the State of Florida Auditor General released findings of an operational audit of Space Florida
that focused on cooperative agreements, board duties and governance, and selected administrative
activities.115 The audit disclosed the following findings:
Space Florida Board committee meetings were not always held in accordance with committee
charter requirements.
Certain Space Florida entertainment and travel expenses did not appear to be clearly necessary
or reasonable to the performance of Space Florida’s statutory duties or commensurate with the
entertainment and travel expenses authorized by State law.
Space Florida did not comply with certain requirements of State law regarding public deposits.
Space Florida contracted with a service organization to provide information technology (IT)
services. However, Space Florida did not take steps to reasonably ensure that service
organization controls relevant to the IT services performed on behalf of Space Florida were
suitably designed and operating effectively.
Space Florida policies and procedures did not adequately promote the retention of records
related to the sanitization and disposition of surplus computer hard drives.
Security controls over mobile device utilization need improvement to ensure the confidentiality,
integrity, and availability of Space Florida data and IT resources.
Space Florida records did not evidence that network user access privileges were timely
disabled for former employees.
The audit also provided recommendations on ways to address each of these findings. Space Florida
responded to the audit by submitting to the Auditor General written statements explaining each of the
findings and a plan for correcting or improving the findings.116
In 2022, the General Appropriations Act implementing bill amended the travel and entertainment
provisions in the Space Florida Act to limit Space Florida's expenditures on entertainment and lodging,
and require Space Florida to submit additional information in its annual report relating to itemized
expenses and information related to corrective actions taken by Space Florida to address the findings
in the audit. These requirements are temporary and are set to expire July 1, 2023.
111 S. 216.241, F.S.
112 S. 1003.03, F.S.
113 S. 216.262(1)(a), F.S.
114 S. 216.177, F.S.
115 State of Florida Auditor General, SPACE FLORIDA Board Duties and Governance and Selected Administrative Activities,
https://flauditor.gov/pages/pdf_files/2022-049.pdf (last visited Mar. 1, 2023).
116 Id.
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DEO Annual Report
DEO is tasked with assisting the Governor in working with the Legislature, state agencies, business
leaders, and economic development professionals to formulate and implement coherent and consistent
policies and strategies designed to promote economic opportunities for all Floridians. 117 DEO must also
ensure that the state's goals and policies relating to economic development, workforce development,
community planning and development, and affordable housing are fully integrated with appropriate
implementation strategies.118
The Secretary of DEO is required to serve as the manager for the state with respect to contracts with
EFI and all applicable direct-support organizations. Such contracts may be for multiyear terms and
must include specific performance measures for each year. 119
DEO, with assistance from EFI is required to, by November 1 of each year, submit an annual report to
the Governor, the President of the Senate, and the Speaker of the House of Representatives on the
condition of the business climate and economic development in the state.
The report must:120
Include the identification of problems and a prioritized list of recommendations; and
Incorporate annual reports of other programs, including:
o Information provided by the Department of Revenue (DOR).
o Information provided by enterprise zone development agencies and an analysis of the
activities and accomplishments of each enterprise zone.
o The Economic Gardening Business Loan Pilot Program and the Economic Gardening
Technical Assistance Pilot Program.
o A detailed report of the performance of the Black Business Loan Program and a
cumulative summary of the quarterly report data.
o The Rural Economic Development Initiative.
o The Florida Unique Abilities Partner Program.
o A detailed report of the performance of the Florida Development Finance Corporation
and a summary of the corporation’s annual report.
Economic Development Programs Evaluation
As directed by the Legislature, the Office of Program Policy Analysis and Government Accountability
(OPPAGA) and the Office of Economic and Demographic Research (EDR) are required to complete
detailed analyses of state economic development programs (analysis) beginning on a certain date and
every three years thereafter. OPPAGA evaluates each program for its effectiveness and value to the
state's taxpayers. EDR evaluates and determines the economic benefits and return-on-investment of
each program.121
Currently, the analysis includes more than 18 economic development programs, including, but not
limited to:
The Quick Action Closing Fund.122
Enterprise Zone Program incentives.123
The New Markets Development Program.124
VISIT Florida and its programs.125
117 S. 20.60(4), F.S.
118 OPPAGA, Program Summary: Department of Economic Opportunity,
https://oppaga.fl.gov/ProgramSummary/ProgramDetail?programNu mber=6101 (last visited Mar. 11, 2021).
119 S. 20.60(9), F.S.
120 S. 20.60(10), F.S.
121 S. 288.0001, F.S.
122 S. 288.1088, F.S.
123 Ss. 212.08(5) and (15), 212.096, 220.181, and 220.182, F.S.
124 Ss. 288.991-288.9922, F.S.
125 Ss. 288.122, 288.1226, 288.12265, and 288.124, F.S.
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The Florida Sports Foundation and related programs.126
The qualified defense contractor and space flight business tax refund program.127
The tax exemption for semiconductor, defense, or space technology sales. 128
The Military Base Protection Program.129
Effect of Proposed Changes
The bill revises provisions governing Space Florida to increase collaboration with public and private
stakeholders regarding spaceport activities, enhance transparency measures regarding spaceport
projects, and separate the Space Florida Board from EFI.
The bill includes Space Florida and the Space Florida Act to the list of entities and laws over which
DEO has contract authority, and requires DEO’s annual report to incorporate annual report information
provided by Space Florida under s. 331.3051, F.S., and an analysis of the activities and
accomplishments of Space Florida.
The bill includes Space Florida among the list of economic development programs scheduled to be
reviewed and analyzed by EDR and OPPAGA, beginning January 1, 2024, and every three years
thereafter.
The bill expands the definition of “aerospace” to include:
Technology intended to be used or designed for flight or re-entry.
Aircraft facilities.
Space-based platforms.
The bill expands the definition of “landing area” to include:
Areas within spaceport territory that are designated by an appropriate body.
Areas within the spaceport territory that are intended for controlling, assisting, flying, navigating,
piloting, maintenance, or construction of any aerospace vehicle or craft.
The bill requires Space Florida to solicit input from NASA, the DOD, and other political subdivisions that
own facilities within spaceport territory as Space Florida develops the spaceport master plan.
The bill requires Space Florida to work with DEO, instead of EFI, as follows:
Enter into agreement with DEO to implement the Space Florida Act.
Cooperate with DEO to develop a plan to retain, expand, attract, and create aerospace industry
entities, public or private, which results in the creation of high-value-added businesses and jobs
in this state.
Develop a plan with DEO to provide financing assistance to aerospace businesses.
The bill requires Space Florida to carry out its responsibilities for spaceport operations by consulting
regularly with the appropriate federal, state, and local authorities on all aspects of establishing and
operating spaceport infrastructure and related aerospace facilities within the state.
The bill requires Space Florida to conduct the following collaborative measures:
Solicit input regularly on Space Florida plans and activities from the aerospace industry, private
sector spaceport territory stakeholders, each entity that owns or has ownership interest in a
facility within spaceport territory, and other political subdivisions within spaceport territory.
Partner with the Board of Governors to foster technological advancement and economic
development for spaceport activities by strengthening higher education programs and
supporting aerospace activities.
126 Ss. 288.1162, 288.11621, 288.1166, 288.1167, 288.1168, 288.1169, and 288.1171, F.S.
127 S. 288.1045, F.S.
128 S. 212.08(5)(j), F.S.
129 S. 288.980, F.S.
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Partner with the Division of Workforce Services (DWS), CSF, and local workforce development
boards to support initiatives that address the high technology skills and staff resources needed
to better promote the state’s efforts in becoming the nation’s leader in aerospace and space
exploration.
Partner with the Metropolitan Planning Organization Advisory Council to coordinate and specify
how aerospace planning and programming will be part of the state's cooperative transportation
planning process.
The bill also requires Space Florida, before October 1 of each year, to submit to DEO, for inclusion in
DEO’s annual report, a complete and detailed written report setting forth:
Its operations and accomplishments during the fiscal year.
Accomplishments and progress concerning the implementation of the spaceport master plan
and other measurable goals, and any updates to such plan and measurable goals.
Any other information required by DEO.
The bill requires Space Florida’s annual report to include certain information, including data on the
economic impact of the aerospace industry in the state during the previous year, and:
The amount and sources of capital investment.
The number of jobs created and retained.
Annualized average wages, listed by geographic areas within the state as specified by the
Space Florida Board.
The bill revises the Space Florida Board as follows:
Separates the Space Florida Board entirely from the EFI board.
Creates an independent Space Florida Board that includes the Governor, who serves ex officio,
or who may appoint a designee to serve, as the chair and a voting member of the Space Florida
Board, and the following appointed members:
o The Secretary of Transportation or his or her designee.
o Five members appointed by the Governor who must have five years of experience in at
least one of the following areas:
The aerospace industry, but not currently employed by an entity that is under
contract with Space Florida,.
An employee or official of a port district or port authority as defined in s.
315.02(2).
Bond financing.
Academic experience in aerospace, aviation, or a relevant science.
As an aircraft facilities manager, a fixed-based operator, or a commercial airport
operator.
o A representative of each of the following entities, who will serve as an ex officio,
nonvoting member of the Space Florida Board, appointed by the Governor:
Jacksonville Aviation Authority.
Titusville-Cocoa Airport Authority.
Appointed members are to serve four year staggered terms.
The bill also specifies the following requirements related to the Space Florida Board membership:
Initial appointments must be made by October 1, 2023.
Terms end on September 30.
Any member is eligible for reappointment, except that a member may not serve more than two
4-year terms.
Vacancies must be filled for the remainder of the unexpired term in the same manner as the
original appointment.
Appointed members may be removed by the appointing official for cause.
Absence from three consecutive meetings is cause for removal.
Space Florida Board members serve without compensation, but are entitled to receive
reimbursement for per diem and travel expenses pursuant to requirements for per diem and
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travel expenses of public officers and employees. Such expenses must be paid out of the funds
of Space Florida.
The Space Florida Board must meet at least quarterly, upon the call of the chairperson, or at the
request of a majority of the membership.
A majority of the total number of current voting members constitutes a quorum.
Official action requires a majority vote of the members present at any meeting at which a
quorum is present.
Meetings may be held via teleconference or other electronic means.
The Space Florida Board must conduct education for newly appointed Space Florida Board
members as provided by DEO in accordance with the Uniform Special District Accountability
Act.
Space Florida may not endorse any candidate for elected public office or contribute moneys to
the campaign of any such candidate.
The bill makes the following travel and entertainment provisions permanent by removing the July 1,
2023 sunset date:
Limits Space Florida's expenditures on entertainment and lodging; and
Requires Space Florida to submit additional information in its annual report relating to itemized
expenses.
The bill extends the July 1, 2023 sunset date to July 1, 2024, for the requirement that information
related to corrective actions taken by Space Florida that address the findings in Auditor General Report
No. 2022-049 be included in the Space Florida annual report.
The bill revises Space Florida’s authority to construct, develop, create, and maintain facilities and
services within spaceport territory to:
Additionally allow Space Florida to own, acquire, equip, extend, improve, and reconstruct its
projects within the geographical limits of the spaceport territory;
Allow Space Florida to maintain such facilities; and
Specify that this authority includes spaceport territory located inside the boundaries of any
political subdivision.
The bill revises Space Florida’s power with respect to roads as follows:
Before proceeding with a proposed project or work activity that is owned by another agency or
jurisdiction, Space Florida is required to consult with the agency or jurisdiction that owns the
road.
Requires Space Florida to advise DOT of any determination Space Florida makes to construct
or maintain a road or bridge within its territory.
Requires Space Florida to provide DOT with complete copies of all documents, agreements,
resolutions, contracts, and instruments relating thereto; and, if necessary, request DOT to
conduct such construction or maintenance work, including the acquisition of necessary rights -of-
way, planning, surveying, and actual construction of the project.
Requires Space Florida to transfer to DOT any funds provided for such construction or
maintenance.
Authorizes DOT to proceed with such construction or maintenance and to use such funds for
such work in the same manner that DOT is authorized to use the funds otherwise provided by
law for use in construction of roads and bridges.
The bill revises provisions related to Space Florida contracts, as follows:
Subjects proposed Space Florida contracts with a total cost of $10 million or more to the notice
and review procedures of legislative appropriations planning and budgeting.
Specifies that if the chair and vice chair of the Legislative Budget Commission or the President
of the Senate and the Speaker of the House of Representatives timely advise Space Florida in
writing that such proposed contract is contrary to legislative policy and intent, Space Florida is
prohibited from executing such proposed contract.
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Prohibits Space Florida from entering into multiple related contracts to avoid the requirements of
this subsection.
The bill requires Space Florida and the Space Florida Board to take the following steps to ensure that
contracted service organizations that provide services to Space Florida are operating effectively:
Requires Space Florida, after execution of a contract with a service organization, to make and
obtain independent and periodic assessments of the effectiveness of the executed contract
document, the service organization, and any other providers relevant to the contract, to ensure
that adequate internal controls are in place for complying with the terms and conditions of the
contract, for the validation and receipt of goods and services, and to determine that the
contracted service is cost effective and meets Space Florida's requirements and goals.
Requires Space Florida to submit a final assessment report to the Space Florida Board and the
Secretary of DEO or his or her designee.
Requires the Space Florida Board, within 30 days after receipt of the final assessment report, to
submit to DEO a written statement of explanation or rebuttal concerning findings requiring
corrective action, including corrective action to be taken to preclude a recurrence.
Requires Space Florida, beginning October 1, 2023, and every three years thereafter, to
complete a risk-based compliance assessment of all internal contracts executed by Space
Florida for the preceding three fiscal years, which must include steps to reasonably ensure that
contracted service organizations' controls relevant to services provided are suitably designed
and operating effectively.
o The assessment findings must be submitted to the Space Florida Board, the Secretary
of DEO or his or her designee, the Governor, the President of the Senate, and the
Speaker of the House of Representatives.
The bill specifies that the provisions of this act shall control if the provisions conflict with the provisions
of another act.
B. SECTION DIRECTORY:
Section 1: amends s. 20.60, F.S., relating to DEO; creation; powers and duties.
Section 2: amends s. 288.0001, F.S., relating to economic development programs evaluation.
Section 3: amends s. 331.303, F.S., making changes to definitions.
Section 4: amends s. 331.305, F.S., revising the powers of Space Florida.
Section 5: amends s. 331.3051, F.S., relating to the duties of Space Florida.
Section 6: amends s. 331.3081, F.S., revising the Space Florida Board.
Section 7: amends s. 331.310, F.S., revising the powers and duties of the Space Florida Board.
Section 8: amends s. 331.3101, F.S., revising provisions related to Space Florida travel and
entertainment expenses.
Section 9: amends s. 331.312, F.S., revising provisions related to furnishing facilities and services
within the spaceport territory.
Section 10: amends s. 331.313, F.S., revising provisions related to the power of Space Florida with
respect to roads.
Section 11: amends s. 331.324, F.S., revising provisions related to Space Florida contracts, grants,
and contributions.
Section 12: amends s. 331.360, F.S., revising provisions relating to the Space Florida spaceport
master plan.
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Section 13: provides the provisions of the act shall control to the extent of certain conflicts.
Section 14: provides an effective date of July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
The provisions in the bill may allow Space Florida to operate more transparently and efficiently
internally and with its partners and surrounding communities, which may result in a positive fiscal
impact to state and local government, and the private sector.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
Current law gives the Space Florida Board sufficient rulemaking authority to carry out the purposes of
the Space Florida Act.130
130 S. 331.310(1)(j), F.S.
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C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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1 A bill to be entitled
2 An act relating to Space Florida; amending s. 20.60,
3 F.S.; requiring the Secretary of Economic Opportunity
4 to serve as the manager for the state with respect to
5 contracts with Space Florida; requiring a certain
6 report by the Department of Economic Opportunity to
7 include an annual report on Space Florida; amending s.
8 288.0001, F.S.; requiring the Office of Economic and
9 Demographic Research and the Office of Program Policy
10 and Government Accountability to provide to the
11 Governor and the Legislature an analysis of Space
12 Florida by a date certain and thereafter at certain
13 intervals; amending s. 331.303, F.S.; revising
14 definitions; amending s. 331.305, F.S.; making a
15 technical change; amending s. 331.3051, F.S.; revising
16 the duties of Space Florida; amending s. 331.3081,
17 F.S.; revising membership of the board of directors of
18 Space Florida; providing for staggered terms,
19 appointments, filling of vacancies, removal of
20 members, and meetings of the board; providing that
21 members serve without compensation but may receive
22 reimbursement for per diem and travel expenses;
23 requiring the board to conduct certain education for
24 new board members; prohibiting Space Florida from
25 endorsing a candidate or contributing moneys to a
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26 campaign; amending s. 331.310, F.S.; conforming a
27 cross-reference; amending s. 331.3101, F.S.; requiring
28 the annual report of Space Florida to include certain
29 information; prohibiting Space Florida from expending
30 funds on certain expenses; providing that certain
31 expenses may not exceed a certain amount; revising the
32 scheduled expiration of provisions requiring certain
33 information in an annual report; abrogating the
34 scheduled expiration of provisions relating to the
35 expenditure of certain funds; amending s. 331.312,
36 F.S.; providing Space Florida with certain authority;
37 amending s. 331.313, F.S.; requiring Space Florida to
38 consult with certain agencies and jurisdictions;
39 requiring Space Florida to advise the Department of
40 Transportation of certain determinations and take
41 certain actions relating to certain construction
42 projects; amending s. 331.324, F.S.; providing that
43 certain contracts are subject to review by the
44 Legislative Budget Commission; requiring Space Florid a
45 to make and obtain certain assessments; requiring the
46 submission of a final assessment report to certain
47 persons; requiring the board of directors to submit a
48 certain statement to the Department of Economic
49 Opportunity; requiring Space Florida to complete a
50 certain assessment at certain intervals beginning on a
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51 certain date; amending s. 331.360, F.S.; requiring
52 Space Florida to solicit input from certain entities
53 to develop the spaceport master plan; providing that
54 the provisions of this act shall control to the extent
55 of certain conflicts; providing an effective date.
56
57 Be It Enacted by the Legislature of the State of Florida:
58
59 Section 1. Paragraph (b) of subsection (9) and paragraph
60 (b) of subsection (10) of section 20.60, Florida Statutes, are
61 amended to read:
62 20.60 Department of Economic Opportunity; creation; powers
63 and duties.—
64 (9) The secretary shall:
65 (b) Serve as the manager for the state with respect to
66 contracts with Space Florida, Enterprise Florida, Inc., and all
67 applicable direct-support organizations. To accomplish the
68 provisions of this section and applicable provisions of chapters
69 chapter 288 and 331, and notwithstanding the provisions of part
70 I of chapter 287, the secretary shall enter into specific
71 contracts with Space Florida, Enterprise Florida, Inc., and
72 other appropriate direct-support organizations. Such contracts
73 may be for multiyear terms and must include specific performance
74 measures for each year. For purposes of this section, the
75 Florida Tourism Industry Marketing Corporation and the Institute
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76 for Commercialization of Florida Technology are not appropriate
77 direct-support organizations.
78 (10) The department, with assistance from Enterprise
79 Florida, Inc., shall, by November 1 of each year, submit an
80 annual report to the Governor, the President of the Senate, and
81 the Speaker of the House of Representatives on the condition of
82 the business climate and economic development in the state.
83 (b) The report must incorporate annual reports of other
84 programs, including:
85 1. Information provided by the Department of Revenue under
86 s. 290.014.
87 2. Information provided by enterprise zone development
88 agencies under s. 290.0056 and an analysis of the activities and
89 accomplishments of each enterprise zone.
90 3. The Economic Gardening Business Loan Pilot Program
91 established under s. 288.1081 and the Economic Gardening
92 Technical Assistance Pilot Program established under s.
93 288.1082.
94 4. A detailed report of the performance of the Black
95 Business Loan Program and a cumulative summary of quarterly
96 report data required under s. 288.714.
97 5. The Rural Economic Development Initiative established
98 under s. 288.0656.
99 6. The Florida Unique Abilities Partner Program.
100 7. A detailed report of the performance of the Florida
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101 Development Finance Corporation and a summary of the
102 corporation's report required under s. 288.9610.
103 8. Information provided by Space Florida under s. 331.3051
104 and an analysis of the activities and accomplishments of Space
105 Florida.
106 Section 2. Paragraph (e) is added to subsection (2) of
107 section 288.0001, Florida Statutes, to read:
108 288.0001 Economic Development Programs Evaluation. —The
109 Office of Economic and Demographic Research and the Office of
110 Program Policy Analysis and Government Accountability (OPPAGA)
111 shall develop and present to the Governor, the President of the
112 Senate, the Speaker of the House of Representatives, and the
113 chairs of the legislative appropriations committees the Economic
114 Development Programs Evaluation.
115 (2) The Office of Economic and Demographic Research and
116 OPPAGA shall provide a detailed analysis of economic development
117 programs as provided in the following schedule:
118 (e) By January 1, 2024, and every 3 years thereafter, an
119 analysis of Space Florida established under part II of chapter
120 331.
121 Section 3. Subsections (1) and (9) of section 331.303,
122 Florida Statutes, are amended to read:
123 331.303 Definitions.—
124 (1) "Aerospace" means the technology and industry related
125 to the design, manufacture, maintenance, repair, and operation
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126 of aircraft or any other device intended to be used or designed
127 for flight or reentry, including that designs and manufactures
128 aircraft, rockets, missiles, spacecraft, satellites, space
129 vehicles, space stations, space and aircraft facilities or
130 components thereof, and related equipment, systems, facilities,
131 simulators, programs, and related activities, including, but not
132 limited to, the application of aerospace and aviation
133 technologies in air-based, land-based, space-based, and sea-
134 based platforms for commercial, civil, and defense purposes.
135 (9) "Landing area" means the geographical area designated
136 by Space Florida or another appropriate body within the
137 spaceport territory for or intended for the landing ,
138 controlling, assisting, flying, navigating, piloting,
139 maintenance, construction, and surface maneuvering of any launch
140 or other space vehicle or aerospace technology or craft.
141 Section 4. Subsection (13) of section 331.305, Florida
142 Statutes, is amended to read:
143 331.305 Powers of Space Florida.—Space Florida may:
144 (13) Own, acquire, construct, reconstruct, equip, operate,
145 maintain, extend, or improve electric power plants, transmission
146 lines and related facilities, gas mains and facilities of any
147 nature for the production or distribution of natural gas,
148 transmission lines and related facilities and plants and
149 facilities for the generation and transmission of power through
150 traditional and new and experimental sources of power and
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151 energy; purchase electric power, natural gas, and other sources
152 of power for distribution within any spaceport territory;
153 develop and operate water and sewer systems and waste collection
154 and disposal consistent with chapter 88-130, Laws of Florida;
155 and develop and operate such new and experimental public
156 utilities, including, but not limited to, centrally distributed
157 heating and air-conditioning facilities and services, closed-
158 circuit television systems, and computer services and
159 facilities, as the board may from time to time determine.
160 However, Space Florida may not construct any system, work,
161 project, or utility authorized to be constructed under this
162 subsection paragraph in the event that a system, work, project,
163 or utility of a similar character is being actually operated by
164 a municipality or private company in the municipality or
165 territory adjacent thereto, unless such municipality or private
166 company consents to such construction.
167 Section 5. Subsection (11) of section 331.3051, Florida
168 Statutes, is renumbered as subsection (16), subsections (2),
169 (3), and (6), paragraph (e) of subsection (7), and present
170 subsection (11) are amended, and a new subsection (11) and
171 subsections (12) through (15) are added to that section, to
172 read:
173 331.3051 Duties of Space Florida.—Space Florida shall:
174 (2) Enter into agreement with the Department of Education,
175 the Department of Transportation, the Department of Economic
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176 Opportunity Enterprise Florida, Inc., and CareerSource Florida,
177 Inc., for the purpose of implementing this act.
178 (3) In cooperation with the Department of Economic
179 Opportunity Enterprise Florida, Inc., develop a plan to retain,
180 expand, attract, and create aerospace industry entities, public
181 or private, which results in the creation of high-value-added
182 businesses and jobs in this state.
183 (6) Develop, in cooperation with the Department of
184 Economic Opportunity Enterprise Florida, Inc., a plan to provide
185 financing assistance to aerospace businesses. The plan may
186 include the following activities:
187 (a) Assembling, publishing, and disseminating information
188 concerning financing opportunities and techniques for aerospace
189 projects, programs, and activities; sources of public and
190 private aerospace financing assistance; and sources of
191 aerospace-related financing.
192 (b) Organizing, hosting, and participating in semi nars and
193 other forums designed to disseminate information and technical
194 assistance regarding aerospace-related financing.
195 (c) Coordinating with programs and goals of the Department
196 of Defense, the National Aeronautics and Space Administration,
197 the Export-Import Bank of the United States, the International
198 Trade Administration of the United States Department of
199 Commerce, the Foreign Credit Insurance Association, and other
200 private and public programs and organizations, domestic and
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201 foreign.
202 (d) Establishing a network of contacts among those
203 domestic and foreign public and private organizations that
204 provide information, technical assistance, and financial support
205 to the aerospace industry.
206 (e) Financing aerospace business development projects or
207 initiatives using funds provided by the Legislature.
208 (7) Carry out its responsibilities for spaceport
209 operations by:
210 (e) Consulting regularly, as necessary, with the
211 appropriate federal, state, and local authorities, including the
212 National Aeronautics and Space Administration, the Federal
213 Aviation Administration, the Department of Defense, the
214 Department of Transportation, the Florida National Guard, and
215 industry on all aspects of establishing and operating spaceport
216 infrastructure and related aerospace facilities within the
217 state.
218 (11) Regularly solicit input on Space Florida plans and
219 activities from the aerospace industry, private sector spaceport
220 territory stakeholders, each entity that owns or has ownership
221 interest in a facility within spaceport territory, and other
222 political subdivisions within spaceport territory.
223 (12) Partner with the Board of Governors to foster
224 technological advancement and economic development for spaceport
225 activities by strengthening higher education programs and
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226 supporting aerospace activities.
227 (13) Partner with the Division of Workforce Services of
228 the Department of Economic Opportunity, CareerSource Florida,
229 Inc., and local workforce development boards to support
230 initiatives that address the high technology skills and staff
231 resources needed to better promote the state's efforts in
232 becoming the nation's leader in aerospace and space exploration.
233 (14) Partner with the Metropolitan Planning Organization
234 Advisory Council to coordinate and specify how aerospace
235 planning and programming will be part of the state's cooperative
236 transportation planning process.
237 (15) By October 1, 2023, and each year thereafter, submit
238 to the Department of Economic Opportunity for inclusion in the
239 annual report required under s. 20.60 a complete and detailed
240 written report setting forth:
241 (a) Its operations and accomplishments during the fiscal
242 year.
243 (b) Accomplishments and progress concerning the
244 implementation of the spaceport master plan and other measurable
245 goals, and any updates to such plan and measurable goals.
246 (c) Any other information required by the Department of
247 Economic Opportunity.
248 (16)(a)(11) In addition to the reporting requirements in
249 chapter 189, annually report on its performance with respect to
250 its business plan, to include finance, spaceport operations,
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251 research and development, workforce development, and education.
252 (b) Space Florida shall submit the report to the Governor,
253 the President of the Senate, and the Speaker of the House of
254 Representatives by November 30 for the previous fiscal year.
255 (c) The annual report must include operations information
256 as required under s. 331.310(2)(e) and data on the economic
257 impact of the aerospace industry in the state during the
258 previous year, including, but not limited to, the amount and
259 sources of capital investment, the number of jobs created and
260 retained, and annualized average wages, listed by geographic
261 areas within the state as specified by the board.
262 Section 6. Section 331.3081, Florida Statutes, is amended
263 to read:
264 331.3081 Board of directors.—
265 (1) Space Florida shall be governed by an a 13-member
266 independent board of directors that consists of the Governor,
267 who shall serve ex officio, or who may appoint a designee to
268 serve, as the chair and a voting member of the board, and the
269 following appointed members:
270 (a) The Secretary of Transportation or his or her
271 designee.
272 (b) Five members appointed by the Governor who must each
273 have at least 5 years of experience in at least one of the
274 following areas:
275 1. The aerospace industry. Such member may not be
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276 currently employed by an entity that is under contract with
277 Space Florida.
278 2. An employee or official of a port district or port
279 authority as defined in s. 315.02(2).
280 3. Bond financing.
281 4. Academic experience in aerospace, aviation, or a
282 relevant science.
283 5. An aircraft facilities manager, a fixed-based operator,
284 or a commercial airport operator.
285 (c) One member appointed by the President of the Senate,
286 who has at least 5 years of experience as provided in paragraph
287 (b).
288 (d) One member appointed by the Speaker of the House of
289 Representatives, who has at least 5 years of experience as
290 provided in paragraph (b).
291 (e) A representative of each of the following entities,
292 who shall serve as an ex officio, nonvoting member of the board,
293 appointed by the Governor:
294 1. The Jacksonville Aviation Authority.
295 2. The Titusville-Cocoa Airport Authority.
296 (2)(a) Appointed members shall serve 4-year terms, except
297 that initially, to provide for staggered terms, the Governor
298 shall appoint two members to serve 2-year terms and two members
299 to serve 3-year terms. All subsequent appointments shall be for
300 4-year terms.
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301 (b) Initial appointments must be made by October 1, 2023.
302 Terms end on September 30.
303 (c) Any member is eligible for reappointment, except that
304 a member may not serve more than two 4-year terms.
305 (d) A vacancy on the board of directors shall be filled
306 for the remainder of the unexpired term in the same manner as
307 the original appointment.
308 (e) Appointed members may be removed by the appointing
309 official for cause. Absence from three consecutive meetings is
310 cause for removal.
311 (3) Board members shall serve without compensation, but
312 are entitled to receive reimbursement for per diem and travel
313 expenses pursuant to s. 112.061. Such expenses must be paid out
314 of funds of Space Florida.
315 (4)(a) The board of directors shall meet at least
316 quarterly, upon the call of the chairperson, or at the request
317 of a majority of the membership.
318 (b) A majority of the total number of current voting
319 members shall constitute a quorum. The board of directors may
320 take official action by a majority vote of the members present
321 at any meeting at which a quorum is present.
322 (c) Meetings may be held via teleconference or other
323 electronic means.
324 (5) The board shall conduct education for newly appointed
325 board members as provided by the Department of Economic
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326 Opportunity in accordance with s. 189.063.
327 (6) Space Florida may not endorse any candidate for
328 elected public office or contribute moneys to the campaign of
329 any such candidate the members appointed to the board of
330 directors of Enterprise Florida, Inc., by the Governor, the
331 President of the Senate, and the Speaker of the House of
332 Representatives pursuant to s. 288.901(5)(a)8. and the Governor,
333 who shall serve ex officio, or who may appoint a designee to
334 serve, as the chair and a voting member of the board.
335 Section 7. Paragraph (e) of subsection (2) of section
336 331.310, Florida Statutes, is amended to read:
337 331.310 Powers and duties of the board of directors. —
338 (2) The board of directors shall:
339 (e) Prepare an annual report of operations as a supplement
340 to the annual report required under s. 331.3051(16) s.
341 331.3051(11). The report must include, but not be limited to, a
342 balance sheet, an income statement, a statement of changes in
343 financial position, a reconciliation of changes in equity
344 accounts, a summary of significant accounting principles, the
345 auditor's report, a summary of the status of existing and
346 proposed bonding projects, comments from management about the
347 year's business, and prospects for the next year.
348 Section 8. Subsections (5) and (6) of section 331.3101,
349 Florida Statutes, are amended to read:
350 331.3101 Space Florida; travel and entertainment
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351 expenses.—
352 (5) In addition to the requirements set forth for the
353 annual report under subsection (3), the 2022 annual report by
354 Space Florida must also:
355 (a) Provide an itemized accounting, by date of travel, of
356 all travel, entertainment, and incidental expenses incurred;
357 (b) To the extent such expenses exceed the generally
358 allowable expense limits under s. 112.061, provide reasons
359 behind the need to exceed the statutory expense limits in s.
360 112.061;
361 (c) Categorize expenses for Space Florida board members,
362 staff, employees, and business clients. The report must also set
363 forth any expenses authorized by the board or its designee for a
364 guest; and
365 (d) Include information related to corrective actions and
366 steps taken by Space Florida to address the findings in Auditor
367 General Report No. 2022-049. This paragraph expires July 1,
368 2024.
369
370 This subsection expires July 1, 2023.
371 (6) Notwithstanding the provisions of this section, travel
372 and entertainment expenses incurred by Space Florida may only be
373 for expenses that are solely and exclusively incurred in
374 connection with the performance of its statutory duties and made
375 in accordance with this subsection.
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376 (a) For the 2022-2023 fiscal year, Space Florida may not
377 expend any funds, whether appropriated by the Legislature or
378 from income earned by Space Florida, on travel and entertainment
379 expenses for the fiscal year in excess of an amount equal to 4
380 percent of the amount appropriated to Space Florida in the
381 General Appropriations Act. No funds may be expended on any
382 recreational activities for any Space Florida board member,
383 staff, employee, business client, or guest.
384 (b) For the 2022-2023 fiscal year, Lodging expenses for a
385 board member, staff, or employee of Space Florida may not exceed
386 $150 per day, excluding taxes, unless Space Florida is
387 participating in a negotiated group rate discount or Space
388 Florida provides documentation of at least three comparable
389 alternatives demonstrating that such lodging at the required
390 rate is not available. However, a board member, staff, or
391 employee of Space Florida may expend his or her own funds for
392 any lodging expenses in excess of $150 per day.
393 (c) This subsection expires July 1, 2023.
394 Section 9. Section 331.312, Florida Statutes, is amended
395 to read:
396 331.312 Furnishing facilities and services within the
397 spaceport territory.—Space Florida may own, acquire, construct,
398 develop, create, maintain, equip, extend, improve, reconstruct,
399 and operate its projects within the geographical limits of the
400 spaceport territory, including any portions of the spaceport
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401 territory located inside the boundaries of any incorporated
402 municipality or other political subdivision, and offer, supply,
403 maintain, and furnish the facilities and services provided for
404 in this act to, and establish and collect fees, rentals, and
405 other charges from, persons, public or private, within the
406 geographical limits of the spaceport territory and for the use
407 of Space Florida itself.
408 Section 10. Section 331.313, Florida Statutes, is amended
409 to read:
410 331.313 Power of Space Florida with respect to roads.—
411 (1) Within the territorial limits of any spaceport
412 territory, Space Florida may acquire, through purchase or
413 interagency agreement, or as otherwise provided in law, and
414 construct, control, and maintain, roads deemed necessary by
415 Space Florida and connections thereto and extensions thereof now
416 or hereafter acquired, constructed, or maintained in accordance
417 with established highway safety standards. However; provided
418 that, in the event a road being addressed by Space Florida is
419 owned by another agency or jurisdiction, Space Florida, before
420 proceeding with the proposed project or work activity, must
421 consult with shall have either coordinated the desired work with
422 the owning agency or jurisdiction that owns the road or shall
423 have successfully executed an interagency agreement with the
424 owning agency or jurisdiction.
425 (2) Space Florida shall advise the Department of
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426 Transportation of any determination Space Florida makes to
427 construct or maintain a road or bridge within its territory;
428 provide the department with complete copies of all documents,
429 agreements, resolutions, contracts, and instruments relating
430 thereto; and, if necessary, request the department to conduct
431 such construction or maintenance work, including the acquisition
432 of necessary rights-of-way, planning, surveying, and actual
433 construction of the project. Space Florida shall transfer to the
434 department any funds provided for such construction or
435 maintenance. The department is authorized to proceed with such
436 construction or maintenance and to use such funds for such work
437 in the same manner that the department is authorized to use the
438 funds otherwise provided by law for use in construction of roads
439 and bridges.
440 Section 11. Section 331.324, Florida Statutes, is amended
441 to read:
442 331.324 Contracts, grants, and contributions.—
443 (1) Space Florida may make and enter all contracts and
444 agreements necessary or incidental to the performance of the
445 functions of Space Florida and the execution of its powers, and
446 contract with, and accept and receive grants or loans of money,
447 material, or property from, any person, private or public, as
448 the board shall determine to be necessary or desira ble to carry
449 out the purposes of this act, and, in connection with any such
450 contract, grant, or loan, stipulate and agree to such covenants,
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451 terms, and conditions as the board shall deem appropriate.
452 (2) A proposed contract with a total cost of $10 million
453 or more is subject to the notice and review procedures of s.
454 216.177. If the chair and vice chair of the Legislative Budget
455 Commission or the President of the Senate and the Speaker of the
456 House of Representatives timely advises Space Florida in writing
457 that such proposed contract is contrary to legislative policy
458 and intent, Space Florida may not execute the contract. Space
459 Florida may not enter into multiple related contracts to avoid
460 the requirements of this subsection.
461 (3)(a) After execution of a contract with a service
462 organization, Space Florida shall make and obtain independent
463 and periodic assessments of the effectiveness of the executed
464 contract document, the service organization, and any other
465 providers relevant to the contract, to ensure that adequate
466 internal controls are in place for complying with the terms and
467 conditions of the contract, for the validation and receipt of
468 goods and services, and to determine that the contracted service
469 is cost effective and meets Space Florida's requirements and
470 goals.
471 (b) A final assessment report shall be submitted to the
472 Space Florida board of directors and the Secretary of Economic
473 Opportunity or his or her designee. Within 30 days after receipt
474 of the final assessment report, the board shall submit to the
475 Department of Economic Opportunity a written statement of
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476 explanation or rebuttal concerning findings requiring corrective
477 action, including corrective action to be taken to preclude a
478 recurrence.
479 (c) Beginning October 1, 2023, and every 3 years
480 thereafter, Space Florida shall complete a risk-based compliance
481 assessment of all internal contracts executed by Space Florida
482 for the preceding 3 fiscal years. The assessment must include
483 steps to reasonably ensure that contracted service
484 organizations' controls relevant to services provided are
485 suitably designed and operating effectively. The assessment
486 findings must be submitted to the board of directors, the
487 Secretary of Economic Opportunity or his or her designee, the
488 Governor, the President of the Senate, and the Speaker of the
489 House of Representatives.
490 Section 12. Subsection (4) of section 331.360, Florida
491 Statutes, is renumbered as subsection (5), subsection (3) is
492 amended, and a new subsection (4) is added to that section, to
493 read:
494 331.360 Joint participation agreement or assistance;
495 spaceport master plan.—
496 (3) Space Florida shall develop a spaceport master plan
497 for expansion and modernization of space transportation
498 facilities within spaceport territories as defined in s.
499 331.303. The plan shall contain recommended projects to meet
500 current and future commercial, national, and state space
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 7041 2023
501 transportation requirements. Space Florida shall submit the plan
502 to any appropriate metropolitan planning organization for review
503 of intermodal impacts. Space Florida shall submit the spaceport
504 master plan to the Department of Transportation, and such plan
505 may be included within the department's 5-year work program of
506 qualifying aerospace discretionary capacity improvement under
507 subsection (5) (4). The plan shall identify appropriate funding
508 levels and include recommendations on appropriate sources of
509 revenue that may be developed to contribute to the State
510 Transportation Trust Fund.
511 (4) Space Florida shall solicit input from the National
512 Aeronautics and Space Administration, the United States
513 Department of Defense, and other political subdivisions that own
514 facilities within spaceport territory as Space Florida develops
515 the spaceport master plan.
516 Section 13. In the event of a conflict of any provision of
517 this act with the provisions of any other act, the provisions of
518 this act shall control to the extent of such conflict.
519 Section 14. This act shall take effect July 1, 2023.
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hb7041-00
COMMERCE COMMITTEE
HB 7041 by Rep. Sirois
Space Florida
AMENDMENT SUMMARY
April 10, 2023
Amendment 1 by Rep. Sirois (strike-all):
• Removes the provision from the bill that requires Space Florida contracts over $10
million to be reviewed by the Legislative Budget Commission.
• Removes the provision from the bill that requires Space Florida to solicit input on its
plans and activities from the aerospace industry.
• Allows the Department of Economic Opportunity (DEO) to submit a proposed operating
budget on behalf of Space Florida, similar to DEO’s current requirement for Enterprise
Florida.
• Restructures the provision in the bill regarding Space Florida’s board of directors to allow
more options for appointments.
• Clarifies when audit requirements are applicable for contracts with service organizations.
• Clarifies the definition of “landing area.”
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 7041 (2023)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/O OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Commerce Committee
2 Representative Sirois offered the following:
3 Amendment (with title amendment)
4 Remove everything after the enacting clause and insert:
5 Section 1. Paragraph (b) of subsection (9) and paragraph
6 (b) of subsection (10) of section 20.60, Florida Statutes, are
7 amended to read:
8 20.60 Department of Economic Opportunity; creation; powers
9 and duties.—
10 (9) The secretary shall:
11 (b) Serve as the manager for the state with respect to
12 contracts with Space Florida, Enterprise Florida, Inc., and all
13 applicable direct-support organizations. To accomplish the
14 provisions of this section and applicable provisions of chapters
15 chapter 288 and 331, and notwithstanding the provisions of part
16 I of chapter 287, the secretary shall enter into specific
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 7041 (2023)
Amendment No. 1
17 contracts with Space Florida, Enterprise Florida, Inc., and all
18 applicable other appropriate direct-support organizations. Such
19 contracts may be for multiyear terms and must include specific
20 performance measures for each year. For purposes of this
21 section, the Florida Tourism Industry Marketing Corporation and
22 the Institute for Commercialization of Florida Technology are
23 not appropriate direct-support organizations.
24 (10) The department, with assistance from Enterprise
25 Florida, Inc., shall, by November 1 of each year, submit an
26 annual report to the Governor, the President of the Senate, and
27 the Speaker of the House of Representatives on the conditi on of
28 the business climate and economic development in the state.
29 (b) The report must incorporate annual reports of other
30 programs, including:
31 1. Information provided by the Department of Revenue under
32 s. 290.014.
33 2. Information provided by enterprise zone development
34 agencies under s. 290.0056 and an analysis of the activities and
35 accomplishments of each enterprise zone.
36 3. The Economic Gardening Business Loan Pilot Program
37 established under s. 288.1081 and the Economic Gardening
38 Technical Assistance Pilot Program established under s.
39 288.1082.
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 7041 (2023)
Amendment No. 1
40 4. A detailed report of the performance of the Black
41 Business Loan Program and a cumulative summary of quarterly
42 report data required under s. 288.714.
43 5. The Rural Economic Development Initiative establi shed
44 under s. 288.0656.
45 6. The Florida Unique Abilities Partner Program.
46 7. A detailed report of the performance of the Florida
47 Development Finance Corporation and a summary of the
48 corporation's report required under s. 288.9610.
49 8. Information provided by Space Florida under s. 331.3051
50 and an analysis of the activities and accomplishments of Space
51 Florida.
52 Section 2. Paragraph (a) of subsection (2) of section
53 288.0001, Florida Statutes, is amended to read:
54 288.0001 Economic Development Programs Evaluation.—The
55 Office of Economic and Demographic Research and the Office of
56 Program Policy Analysis and Government Accountability (OPPAGA)
57 shall develop and present to the Governor, the President of the
58 Senate, the Speaker of the House of Representatives, and the
59 chairs of the legislative appropriations committees the Economic
60 Development Programs Evaluation.
61 (2) The Office of Economic and Demographic Research and
62 OPPAGA shall provide a detailed analysis of economic development
63 programs as provided in the following schedule:
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 7041 (2023)
Amendment No. 1
64 (a) By January 1, 2014, and every 3 years thereafter, an
65 analysis of the following:
66 1. The capital investment tax credit established under s.
67 220.191.
68 2. The qualified target industry tax refund established
69 under s. 288.106.
70 3. The brownfield redevelopment bonus refund established
71 under s. 288.107.
72 4. High-impact business performance grants established
73 under s. 288.108.
74 5. The Quick Action Closing Fund established under s.
75 288.1088.
76 6. The Innovation Incentive Program established under s.
77 288.1089.
78 7. Enterprise Zone Program incentives established under
79 ss. 212.08(5) and (15), 212.096, 220.181, and 220.182.
80 8. The New Markets Development Program established under
81 ss. 288.991-288.9922.
82 9. Space Florida established under s. 331.302.
83 Section 3. Subsections (1) and (9) of section 331.303,
84 Florida Statutes, are amended to read:
85 331.303 Definitions.—
86 (1) "Aerospace" means the technology and industry related
87 to the design, manufacture, maintenance, repair, and operation
88 of aircraft or any other device intended to be used or designed
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 7041 (2023)
Amendment No. 1
89 for flight or reentry, including that designs and manufactures
90 aircraft, rockets, missiles, spacecraft, satellites, space
91 vehicles, space stations, space and aircraft facilities or
92 components thereof, and related equipment, systems, facilities,
93 simulators, programs, and related activities, including, but not
94 limited to, the application of aerospace and aviation
95 technologies in air-based, land-based, space-based, and sea-
96 based platforms for commercial, civil, and defense purposes.
97 (9) "Landing area" means the geographical area designated
98 by Space Florida, or another appropriate entity, within the
99 spaceport territory, or another appropriate area, used for or
100 intended to be used for the landing, controlling, assisting,
101 flying, navigating, piloting, maintenance, construction, and
102 surface maneuvering of any launch or other space vehicle or
103 aerospace technology or craft.
104 Section 4. Subsection (13) of section 331.305, Florida
105 Statutes, is amended to read:
106 331.305 Powers of Space Florida.—Space Florida may:
107 (13) Own, acquire, construct, reconstruct, equip, operate,
108 maintain, extend, or improve electric power plants, transmission
109 lines and related facilities, gas mains and facilities of any
110 nature for the production or distribution of natural gas,
111 transmission lines and related facilities and plants and
112 facilities for the generation and transmission of power through
113 traditional and new and experimental sources of power and
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 7041 (2023)
Amendment No. 1
114 energy; purchase electric power, natural gas, and other sources
115 of power for distribution within any spaceport territory;
116 develop and operate water and sewer systems and waste collection
117 and disposal consistent with chapter 88-130, Laws of Florida;
118 and develop and operate such new and experimental public
119 utilities, including, but not limited to, centrally distributed
120 heating and air-conditioning facilities and services, closed-
121 circuit television systems, and computer services and
122 facilities, as the board may from time to time determine.
123 However, Space Florida may not construct any system, work,
124 project, or utility authorized to be constructed under this
125 subsection paragraph in the event that a system, work, project,
126 or utility of a similar character is being actually operated by
127 a municipality or private company in the municipality or
128 territory adjacent thereto, unless such municipality or private
129 company consents to such construction.
130 Section 5. Subsection (11) of section 331.3051, Florida
131 Statutes, is renumbered as subsection (14), subsections (2),
132 (3), and (6), paragraph (e) of subsection (7), and present
133 subsection (11) of that section are amended, and a new
134 subsection (11) and subsections (12) and (13) are added to that
135 section, to read:
136 331.3051 Duties of Space Florida.—Space Florida shall:
137 (2) Enter into agreement with the Department of Education,
138 the Department of Transportation, the Department of Economic
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 7041 (2023)
Amendment No. 1
139 Opportunity Enterprise Florida, Inc., and CareerSource Florida,
140 Inc., for the purpose of implementing this act.
141 (3) In cooperation with the Department of Economic
142 Opportunity Enterprise Florida, Inc., develop a plan to retain,
143 expand, attract, and create aerospace industry entities, public
144 or private, which results in the creation of high-value-added
145 businesses and jobs in this state. By August 15 of each fiscal
146 year, the Department of Economic Opportunity shall submit a
147 proposed operating budget for Space Florida which includes
148 amounts to be expended on incentives, advertising, events, other
149 operating capital outlay, and salaries and benefits for each
150 employee to the Governor, the President of the Senate, and the
151 Speaker of the House of Representatives.
152 (6) Develop, in cooperation with the Department of
153 Economic Opportunity Enterprise Florida, Inc., a plan to provide
154 financing assistance to aerospace businesses. The plan may
155 include the following activities:
156 (a) Assembling, publishing, and disseminating information
157 concerning financing opportunities and techniques for aerospace
158 projects, programs, and activities; sources of public and
159 private aerospace financing assistance; and sources of
160 aerospace-related financing.
161 (b) Organizing, hosting, and participating in seminars and
162 other forums designed to disseminate information and technical
163 assistance regarding aerospace-related financing.
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Bill No. HB 7041 (2023)
Amendment No. 1
164 (c) Coordinating with programs and goals of the Department
165 of Defense, the National Aeronautics and Space Administration,
166 the Export-Import Bank of the United States, the International
167 Trade Administration of the United States Department of
168 Commerce, the Foreign Credit Insurance Association, and other
169 private and public programs and organizations, domestic and
170 foreign.
171 (d) Establishing a network of contacts among those
172 domestic and foreign public and private organizations that
173 provide information, technical assistance, and financial support
174 to the aerospace industry.
175 (e) Financing aerospace business development projects or
176 initiatives using funds provided by the Legislature.
177 (7) Carry out its responsibilities for spaceport
178 operations by:
179 (e) Consulting regularly, as necessary, with the
180 appropriate federal, state, and local authorities, including the
181 National Aeronautics and Space Administration, the Federal
182 Aviation Administration, the Department of Defense, the
183 Department of Transportation, the Florida National Guard, and
184 industry on all aspects of establishing and operating spaceport
185 infrastructure and related aerospace facilities within the
186 state.
187 (11) Partner with the Board of Governors to foster
188 technological advancement and economic development for spaceport
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 7041 (2023)
Amendment No. 1
189 activities by strengthening higher education programs and
190 supporting aerospace activities.
191 (12) Partner with the Division of Workforce Services of
192 the Department of Economic Opportunity, CareerSource Florida,
193 Inc., and local workforce development boards to support
194 initiatives that address the high technology skills and staff
195 resources needed to better promote the state's efforts in
196 becoming the nation's leader in aerospace and space exploration .
197 (13) Partner with the Metropolitan Planning Organization
198 Advisory Council to coordinate and specify how aerospace
199 planning and programming will be part of the state's cooperative
200 transportation planning process.
201 (14)(a)(11) In addition to the reporting requirements in
202 chapter 189, annually by October 1 report on its performance
203 during the previous fiscal year with respect to its business
204 plan, to include finance, spaceport operations, research and
205 development, workforce development, and education. Space Florida
206 shall submit the report to the Department of Economic
207 Opportunity for inclusion in the annual report required under s.
208 20.60 Governor, the President of the Senate, and the Speaker of
209 the House of Representatives by November 30 for the previous
210 fiscal year.
211 (b) The annual report must include:
212 1. Operations information as required under s.
213 331.310(2)(e).
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 7041 (2023)
Amendment No. 1
214 2. Activities, accomplishments, and progress concerning
215 the implementation of the spaceport master plan and other
216 measurable goals, and any updates to such plan and measurable
217 goals.
218 3. Data on the economic impact of the aerospace industry
219 in this state during the previous year, including, but not
220 limited to, the amount and sources of capital investment, the
221 number of jobs created and retained, and annualized average
222 wages, listed by geographic areas within this state as specified
223 by the board.
224 4. Any other information required by the Department of
225 Economic Opportunity.
226 (c) Space Florida shall provide a copy of the special
227 district public facilities report required under s. 189.08 to
228 Space Florida's property owners, project owners, and users.
229 Section 6. Section 331.3081, Florida Statutes, is amended
230 to read:
231 331.3081 Board of directors; officers and employees of
232 Space Florida.—
233 (1) Space Florida shall be governed by an a 13-member
234 independent board of directors composed of that consists of the
235 members appointed to the board of directors of Enterprise
236 Florida, Inc., by the Governor, the President of the Senate, and
237 the Speaker of the House of Representatives pursuant to s.
238 288.901(5)(a)8. and the Governor, who shall serve ex officio, or
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 7041 (2023)
Amendment No. 1
239 who may appoint a designee to serve, as the chair and a voting
240 member of the board, and the following appointed members:
241 (a) The Secretary of Transportation or his or her
242 designee.
243 (b) Five members appointed by the Governor.
244 (c) One member appointed by the President of the Senate.
245 (d) One member appointed by the Speaker of the House of
246 Representatives.
247 (e) Three representatives appointed by the Governor, who
248 shall serve ex officio as nonvoting members of the board, one
249 each from the following entities:
250 1. An airport authority with the capability for horizontal
251 launches, such as the Jacksonville Aviation Authority or
252 Titusville-Cocoa Airport Authority.
253 2. Operations or management of a port district or port
254 authority, as defined in s. 315.02(2).
255 3. Operations or management of a spaceport territory, as
256 identified in s. 331.304.
257 (2)(a) The appointing officials may only consider for
258 appointment to the board individuals who have at least 5 years
259 of experience in at least one of the following areas:
260 1. Bond financing;
261 2. Study of aerospace, aviation, or a relevant science
262 within academia;
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Bill No. HB 7041 (2023)
Amendment No. 1
263 3. Management or operation of aircraft facilities, fixed-
264 base operations, or commercial airport operations;
265 4. Management or finance of a technology or manufacturing
266 startup business or international business; or
267 5. Experience advocating for the state's interests in the
268 aerospace industry or representing the intent, duties, goals and
269 purpose of Space Florida.
270 (b) Each appointee must be a resident of this state or
271 have a business enterprise in this state.
272 (3) Appointed members shall serve 4-year terms, except
273 that initially, to provide for staggered terms, the Governor
274 shall appoint two members to serve 2-year terms and two members
275 to serve 3-year terms. All subsequent appointments shall be for
276 4-year terms.
277 (4) Initial appointments must be made by October 1, 2023.
278 Terms end on September 30 of the last year of the member's term.
279 (5) Any member is eligible for reappointment, except that
280 a member may not serve more than two 4-year terms.
281 (6) A vacancy on the board of directors must be filled for
282 the remainder of the unexpired term in the same manner as the
283 original appointment.
284 (7) Appointed members may be removed by the appointing
285 official for cause. Absence from three consecutive meetings is
286 cause for removal.
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Bill No. HB 7041 (2023)
Amendment No. 1
287 (8) Board members shall serve without compensation, but
288 are entitled to receive reimbursement for per diem and travel
289 expenses pursuant to s. 112.061. Such expenses must be paid out
290 of Space Florida funds.
291 (9)(a) The board of directors shall meet at least
292 quarterly, upon the call of the chairperson, or at the request
293 of a majority of the membership.
294 (b) A majority of the total number of current voting
295 members constitutes a quorum. The board of directors may take
296 official action by a majority vote of the members present at any
297 meeting at which a quorum is present.
298 (c) Meetings may be held via teleconference or other
299 electronic means.
300 (10) In addition to the requirements in chapter 189, open
301 meeting and public records requirements of chapter 119 and s.
302 286.011 apply to Space Florida and its board of directors.
303 (11) The board shall conduct education programs for newly
304 appointed board members as provided by the Department of
305 Economic Opportunity in accordance with s. 189.063.
306 (12) Space Florida may not endorse any candidate for
307 elected public office or contribute moneys to the campaign of
308 any such candidate.
309 Section 7. Members appointed to the board of directors of
310 Space Florida before July 1, 2023, may continue to serve on the
311 board until October 1, 2023. All new appointments to the board
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 7041 (2023)
Amendment No. 1
312 of directors as required in s. 331.3081, Florida Statutes, as
313 amended by this act, shall take effect on October 1, 2023.
314 Section 8. Paragraphs (e) and (f) of subsection (2) of
315 section 331.310, Florida Statutes, are amended to read:
316 331.310 Powers and duties of the board of directors. —
317 (2) The board of directors shall:
318 (e) Prepare an annual report of operations as a supplement
319 to the annual report required under s. 331.3051(14) s.
320 331.3051(11). The report must include, but not be limited to, a
321 balance sheet, an income statement, a statement of changes in
322 financial position, a reconciliation of changes in equity
323 accounts, a summary of significant accounting principles, the
324 auditor's report, a summary of the status of existing and
325 proposed bonding projects, comments from management about the
326 year's business, and prospects for the next year.
327 (f) Establish a personnel management system and
328 appropriate security controls, including access privileges and
329 other measures to protect the confidentiality, integrity, and
330 availability of data and resources.
331 Section 9. Subsections (5) and (6) of section 331.3101,
332 Florida Statutes, are amended to read:
333 331.3101 Space Florida; travel and entertainment
334 expenses.—
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Bill No. HB 7041 (2023)
Amendment No. 1
335 (5) In addition to the requirements set forth for the
336 annual report under subsection (3), the 2022 annual report by
337 Space Florida must also:
338 (a) Provide an itemized accounting, by date of travel, of
339 all travel, entertainment, and incidental expenses incurred;
340 (b) To the extent such expenses exceed the generally
341 allowable expense limits under s. 112.061, provide reasons
342 behind the need to exceed the statutory expense limits in s.
343 112.061;
344 (c) Categorize expenses for Space Florida board members,
345 staff, employees, and business clients. The report must also set
346 forth any expenses authorized by the board or its designee for a
347 guest; and
348 (d) Include information related to corrective actions and
349 steps taken by Space Florida to address the findings in Auditor
350 General Report No. 2022-049. This paragraph expires July 1, 2024
351 This subsection expires July 1, 2023.
352 (6) Notwithstanding the provisions of this section, travel
353 and entertainment expenses incurred by Space Florida may only be
354 for expenses that are solely and exclusively incurred in
355 connection with the performance of its statutory duties and made
356 in accordance with this subsection.
357 (a) For the 2022-2023 fiscal year, Space Florida may not
358 expend any funds, whether appropriated by the Legislature or
359 from income earned by Space Florida, on travel and entertainment
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Bill No. HB 7041 (2023)
Amendment No. 1
360 expenses for the fiscal year in excess of an amount equal to 4
361 percent of the amount appropriated to Space Florida in the
362 General Appropriations Act. No funds may be expended on any
363 recreational activities for any Space Florida board member,
364 staff, employee, business client, or guest.
365 (b) For the 2022-2023 fiscal year, Lodging expenses for a
366 board member, staff, or employee of Space Florida may not exceed
367 $150 per day, excluding taxes, unless Space Florida is
368 participating in a negotiated group rate discount or Space
369 Florida provides documentation of at least three comparable
370 alternatives demonstrating that such lodging at the required
371 rate is not available. However, a board member, staff, or
372 employee of Space Florida may expend his or her own funds for
373 any lodging expenses in excess of $150 per day.
374 (c) This subsection expires July 1, 2023.
375 Section 10. Section 331.312, Florida Statutes, is amended
376 to read:
377 331.312 Furnishing facilities and services within the
378 spaceport territory.—Space Florida may own, acquire, construct,
379 develop, create, maintain, equip, extend, improve, reconstruct,
380 and operate its projects within the geographical limits of the
381 spaceport territory, including any portions of the spaceport
382 territory located inside the boundaries of any incorporated
383 municipality or other political subdivision, and offer, supply,
384 maintain, and furnish the facilities and services provided for
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Bill No. HB 7041 (2023)
Amendment No. 1
385 in this act to, and establish and collect fees, rentals, and
386 other charges from, persons, public or private, within the
387 geographical limits of the spaceport territory and for the use
388 of Space Florida itself.
389 Section 11. Section 331.313, Florida Statutes, is amended
390 to read:
391 331.313 Power of Space Florida with respect to roads.—
392 (1) Within the territorial limits of any spaceport
393 territory, Space Florida may acquire, through purchase or
394 interagency agreement, or as otherwise provided in law, and
395 construct, control, and maintain, roads deemed necessary by
396 Space Florida and connections thereto and extensions thereof now
397 or hereafter acquired, constructed, or maintained in accordance
398 with established highway safety standards. However; provided
399 that, in the event a road being addressed by Space Florida is
400 owned by another agency or jurisdiction, Space Florida, before
401 proceeding with the proposed project or work activity, must
402 consult shall have either coordinated the desired work with the
403 owning agency or jurisdiction that owns the road or shall have
404 successfully executed an interagency agreement with the owning
405 agency or jurisdiction.
406 (2) Space Florida shall advise the Department of
407 Transportation of any determination Space Florida makes to
408 construct or maintain a road or bridge within its territory;
409 provide the department with complete copies of all documents,
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 7041 (2023)
Amendment No. 1
410 agreements, resolutions, contracts, and instruments relating to
411 such construction or maintenance; and, if necessary, request the
412 department to perform such construction or maintenance work,
413 including the acquisition of necessary rights-of-way, planning,
414 surveying, and actual construction of the project. Space Florida
415 shall transfer to the Department of Transportation any funds
416 provided for such construction or maintenance. The Department of
417 Transportation is authorized to proceed with such construction
418 or maintenance and to use funds for such work in the same manner
419 that the department is authorized to use the funds otherwise
420 provided by law for construction of roads and bridges.
421 Section 12. Section 331.324, Florida Statutes, is amended
422 to read:
423 331.324 Contracts, grants, and contributions.—
424 (1) Space Florida may make and enter all contracts and
425 agreements necessary or incidental to the performance of the
426 functions of Space Florida and the execution of its powers, and
427 contract with, and accept and receive grants or loans of mon ey,
428 material, or property from, any person, private or public, as
429 the board shall determine to be necessary or desirable to carry
430 out the purposes of this act, and, in connection with any such
431 contract, grant, or loan, stipulate and agree to such covenants ,
432 terms, and conditions as the board shall deem appropriate.
433 (2)(a) A contract with a service organization for services
434 which exceeds $250,000 and is for a period of 12 months or
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 7041 (2023)
Amendment No. 1
435 longer must include provisions requiring an auditor report to
436 provide periodic assessments of the effectiveness of the
437 executed contract document, the service organization, and any
438 other providers relevant to the contract, to ensure that the
439 service organization maintains adequate internal controls to
440 comply with the terms and conditions of the contract, to
441 validate and receive goods and services, and to determine
442 whether the contracted service is cost-effective and meets Space
443 Florida's requirements and goals.
444 (b) Space Florida shall submit the auditor's final report
445 to the Space Florida board of directors and the Secretary of
446 Economic Opportunity or his or her designee. Within 30 days
447 after receipt of the final report, the board shall submit to the
448 Department of Economic Opportunity a written statement of
449 explanation or rebuttal concerning findings requiring corrective
450 action, including corrective action to be taken to preclude a
451 recurrence of such findings.
452 Section 13. In the event of a conflict of any provision of
453 this act with the provisions of any other act, this act shall
454 control to the extent of such conflict.
455 Section 14. This act shall take effect July 1, 2023.
456
457 -----------------------------------------------------
458 T I T L E A M E N D M E N T
459 Remove everything before the enacting clause and insert:
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 7041 (2023)
Amendment No. 1
460 A bill to be entitled
461 An act relating to Space Florida; amending s. 20.60,
462 F.S.; requiring the Secretary of Economic Opportunity
463 to serve as the manager for the state with respect to
464 contracts with Space Florida; requiring that an annual
465 report submitted by the Department of Economic
466 Opportunity include specified information provided by
467 Space Florida and a certain analysis; amending s.
468 288.0001, F.S.; requiring the Office of Economic and
469 Demographic Research and the Office of Program Policy
470 Analysis and Government Accountability to provide to
471 the Governor and the Legislature an analysis of Space
472 Florida; amending s. 331.303, F.S.; revising
473 definitions; amending s. 331.305, F.S.; making a
474 technical change; amending s. 331.3051, F.S.; revising
475 the duties of Space Florida; requiring the Department
476 of Economic Opportunity to annually submit a proposed
477 operating budget by a specified date; requiring Space
478 Florida to annually report on its performance by a
479 specified date; amending s. 331.3081, F.S.; revising
480 membership of the board of directors of Space Florida;
481 providing for staggered terms, reappointments, filling
482 of vacancies, and removal of members; providing that
483 members serve without compensation but may receive
484 reimbursement for per diem and travel expenses;
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 7041 (2023)
Amendment No. 1
485 providing that open meeting and public records apply
486 to Space Florida and its board of directors; requiring
487 the board to conduct certain education programs for
488 new board members; prohibiting Space Florida from
489 endorsing a candidate for elected public office or
490 contributing moneys to such candidate's campaign;
491 specifying that certain members of the board may serve
492 until a specified date; requiring that the
493 appointments of certain board members take effect on a
494 specified date; amending s. 331.310, F.S.; conforming
495 a cross-reference; revising the powers and duties of
496 the board of directors of Space Florida; amending s.
497 331.3101, F.S.; revising the scheduled expiration of
498 provisions requiring certain information in an annual
499 report; deleting the scheduled expiration of
500 provisions relating to the expenditure of certain
501 funds; amending s. 331.312, F.S.; expanding the
502 authority Space Florida may exercise within certain
503 geographical limits; amending s. 331.313, F.S.;
504 requiring Space Florida to consult with certain
505 agencies and jurisdictions regarding certain roads;
506 requiring Space Florida to advise the Department of
507 Transportation of certain determinations and take
508 certain actions relating to certain construction
509 projects; requiring Space Florida to transfer certain
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 7041 (2023)
Amendment No. 1
510 funds to the Department of Transportation; authorizing
511 the Department of Transportation to proceed with
512 certain construction or maintenance in a certain
513 manner; amending s. 331.324, F.S.; requiring that
514 certain contracts include provisions requiring a
515 auditor report to provide certain periodic
516 assessments; requiring Space Florida to submit the
517 auditor's final assessment report to specified
518 entities; requiring the board of directors to submit a
519 certain statement to the Department of Economic
520 Opportunity within a specified timeframe; providing
521 construction; providing an effective date.
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PCB COM 23-03
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: PCB COM 23-03 Natural Emergencies
SPONSOR(S): Commerce Committee
TIED BILLS: IDEN./SIM. BILLS: CS/CS SB 250
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Commerce Committee Larkin Hamon
SUMMARY ANALYSIS
The bill:
• Requires the Division of Emergency Management (DEM) to post on its website a model debris removal
contract for the benefit of local governments.
• Encourages local governments to create emergency financial plans in preparation for major natural
disasters.
• Provides that counties and municipalities cannot prohibit a resident from placing a temporary residential
structure on their property for up to 36 months following a natural emergency under certain circumstances.
• Authorizes local governments to create specialized building inspection teams following a natural disaster
and encourages interlocal agreements for additional building inspection services during a state of
emergency.
• Requires local governments to expedite the issuance of permits following a natural disaster.
• Increases the extension of certain building permits following a declaration of a state of emergency from 6 to
24 months and caps such extension at 48 months in the event of multiple natural emergencies.
• Prohibits counties and municipalities within the disaster declaration for Hurricane Ian or Hurricane Nicole
from increasing building fees until October 1, 2024.
• Allows registered contractors to engage in contracting for the types of work covered by their registration
within areas for which a state of emergency has been declared.
• Prohibits counties and municipalities within the disaster declaration for Hurricane Ian or Hurricane Nicole
from adopting more restrictive or burdensome procedures to its comprehensive plan or land development
regulations concerning review, approval, or issuance of a site plan, development permit, or development
order before October 1, 2024.
• Amends the Consultants’ Competitive Negotiation Act to allow for additional disaster-related construction
projects relating to Hurricane Ian to utilize the “continuing contracts” provision through December 31, 2023.
• Provides clarification regarding abandoned vessels and their destruction.
• Directs DEM to administer a revolving loan program for local government hazard mitigation projects, and
appropriates $1,000,000 in nonrecurring funds from the General Revenue Fund and $10,000,000 in
nonrecurring funds from the Federal Grants Trust Fund for such activity. Such funds will be held in reserve,
contingent upon FEMA approval and release by the Legislative Budget Commission.
• Makes the Local Government Emergency Bridge Loan Program a revolving program and makes funds
available for local governments impacted by federally declared disasters until July 1, 2038. Additionally, the
bill appropriates $50 million in nonrecurring funds from the General Revenue Fund to the program.
The bill has a significant fiscal impact on state government and an may have an insignificant fiscal impact on
local governments. See II. FISCAL ANALYSIS AND ECONOMIC IMPACT STATEMENT for further discussion.
The bill has an effective date of July 1, 2023, unless otherwise expressly provided.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
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DATE: 4/8/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Emergency Management – Current Situation
The State Emergency Management Act, ch. 252, F.S., was enacted to be the legal framework for this
state’s emergency management activities, recognizing the state’s vulnerability to a wide range of
emergencies, including natural, manmade, and technological disasters. 1 In order to reduce the state’s
vulnerability to these circumstances and to prepare to respond to them, the act promotes the state’s
emergency readiness through enhanced coordination, long-term planning, and adequate funding. 2
The act creates the Division of Emergency Management (DEM) within the Executive Office of the
Governor and grants DEM with powers and duties necessary to mitigate the vulnerability of life,
property, and economic prosperity due to natural and manmade disasters. 3 The responsibilities of DEM
include:
• Carrying out the State Emergency Management Act;
• Maintaining a comprehensive statewide program of emergency management; and
• Coordinating with efforts of the federal government with other departments and agencies of state
government, with county and municipal governments and school boards, and with private agencies
that have a role in emergency management. 4
The act also delineates the Governor’s authority to declare a state of emergency, issue executive
orders, and otherwise lead the state during emergencies. If the Governor finds that an emergency 5 has
occurred or is imminent, he or she must declare a state of emergency. 6 An executive order or
proclamation of a state of emergency shall identify whether the state of emergency is due to a minor, 7
major, 8 or catastrophic 9 disaster. 10 The state of emergency must continue until the Governor finds that
the threat or danger has been dealt with to the extent that the emergency conditions no longer exist,
but no state of emergency may continue for longer than 60 days unless renewed by the Governor. 11
Additionally, the Legislature may end a state of emergency by passing a concurrent resolution. 12
In a state of emergency, the Governor has broad power to perform necessary actions to ensure
Floridians' health, safety, and welfare. A state of emergency provides the governor with additional
authority not otherwise present, such as the ability to impose curfews, order evacuations, determine
means of ingress and egress to and from affected areas, and commandeer or utilize private property
1 S. 252.311(1), F.S.
2 S. 252.311(2), F.S.
3 S. 252.32(1)(a) and 252.34(3), F.S.
4 S. 252.35(1) and (2), F.S.
5 “Emergency” means any occurrence, or threat thereof, whether natural, technological, or manmade, in war or in peace,
which results or may result in substantial injury or harm to the population or substantial damage to or loss of property. See
s. 252.34(4), F.S.
6 S. 252.36(2), F.S.
7 “Minor disaster” means a disaster that is likely to be within the response capabilities of local government and to result in
only a minimal need for state or federal assistance. See s. 252.34(2)(c), F.S.
8 “Major disaster” means a disaster that will likely exceed local capabilities and require a broad range of state and federal
assistance. See s. 252.34(2)(b), F.S.
9 “Catastrophic disaster” means a disaster that will require massive state and federal assistance, including immediate
military involvement. See s. 252.34(2)(a), F.S.
10 S. 252.36(4)(c), F.S.
11 Supra note 6.
12 S. 252.36(3), F.S.
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subject to compensation. 13 To effectively facilitate emergency measures, the Governor has the power
to issue executive orders, proclamations, and rules, which have the force and effect of law. 14
Through this emergency power, the Governor can suspend the provisions of any regulatory statute if
compliance would prevent, hinder, or delay necessary action to deal with the emergency. Further, as
designated by the Governor or in emergency management plans, state agencies, local governments,
and others can make, amend, and rescind orders and rules as necessary for emergency management
purposes. However, these orders and rules cannot conflict with orders of the Governor, DEM, or other
state agencies delegated emergency powers by the Governor.
When there is a disaster in the United States, the Governor of an affected state must request an
emergency and major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency
Assistance Act. 15 All emergency and disaster declarations are made at the discretion of the President
of the United States. 16 There are two types of disaster declarations, emergency declarations and major
disaster declarations. 17 Both declarations allow for federal assistance to states and local governments,
however they differ in scope, types, and amount of assistance available. 18 Primary federal disaster
assistance administered by the Federal Emergency Management Agency (FEMA) is provided via the
Individual Assistance Program and the Public Assistance Grant Program. The scope of an event will
determine which categories within each program are available to affected states.
One component of the Public Assistance Grant Program is the provision of direct assistance or
reimbursement to state and local governments for the costs of removing debris and wreckage from
public and private property.
Emergency Management – Effect of Bill
Temporary Shelters
The bill provides that a county and a municipality must allow for a resident to place a temporary
structure on residential property if the permanent residential structure was damaged and rendered
uninhabitable during a natural emergency 19 for which the Governor declared a state of emergency. A
temporary structure includes, but is not limited to, a recreational vehicle, trailer, or similar structure. A
county or a municipality may not prohibit the placement of a temporary structure on the property for up
to 36 months after the date of the declaration of emergency or until a certificate of occupancy is issued
for the permanent residential structure, whichever occurs first, if all the following circumstances apply:
• The resident makes a good faith effort to rebuild or renovate the damaged permanent residential
structure, including, but not limited to, applying for a building permit, submitting a plan or design to
the county, or obtaining a construction loan;
• The temporary shelter is connected to the water and electric utilities and does not present a threat
to health and human safety; and
• The resident lives in the temporary structure.
Local Emergency Financial Plans
The bill encourages local governmental entities to develop an emergency financial plan for major
natural disasters that may impact its jurisdiction. Each financial plan should be based off the likelihood
of each disaster’s occurrence and should also include an estimated cost of the impact and evaluation of
available financial help to the local government, including backup plans to address any gaps in funding
13 See s. 252.36(6), F.S.
14 S. 252.36(1)(b), F.S.
15 2 U.S.C. §§ 5121-5207
16 FEMA, How a Disaster Gets Declared, https://www.fema.gov/disaster/how-declared (last visited April 4, 2023.)
17 Id.
18 Id.
19 “Natural emergency” means an emergency caused by a natural event, including, but not limited to, a hurricane, a storm,
a flood, severe wave action, a drought, or an earthquake. See s. 252.34(8), F.S.
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during the event of a natural disaster. Local governmental entities should annually review their
emergency financial plans to address changes in conditions.
Division of Emergency Management Requirements – Model Contracts, Technical Assistance, Hazard
Mitigation Projects
The bill requires DEM to:
• Post an initial model of a local government contract for debris removal to their website no later than
June 1, 2023, and to post an updated model no later than June 1 of each subsequent year.
• Prioritize technical assistance and training to fiscally constrained counties 20 as defined in s. 218.67,
F.S., on aspects of safety measures, preparedness, prevention, response, recovery, and mitigation
relating to natural disasters and emergencies.
In addition, the bill requires DEM to administer a revolving loan program for local government hazard
mitigation projects. This provision will allow DEM to receive grant funding from FEMA to administer the
Safeguarding Tomorrow Revolving Loan Fund Program, described in more detail below.
This section is effective upon becoming law.
Safeguarding Tomorrow Revolving Loan Fund Program – Current Situation
The Safeguarding Tomorrow through Ongoing Risk Mitigation (“STORM”) Act, which became federal
law on January 1, 2021, authorizes FEMA to provide capitalization grants to states and federally
recognized tribes to establish revolving loan programs for hazard mitigation. The revolving loan funds
will be used by local governments to fund projects to increase resiliency and mitigate the impacts of
natural hazards including drought; severe storms, hurricanes, tornadoes, windstorms, cyclones, and
severe winter; storms; wildfires; earthquakes; flooding; shoreline erosion; high water levels; and storm
surges. 21
Under STORM, local governments can apply to the state entity for such loans with an interest rate of no
more than 1 percent, which must be repaid by the local government no later than 20 years after the
date the project is completed, or 30 years for projects in low-income areas. 22 STORM represents the
first time that a revolving loan fund has been set up to fund hazard mitigation.
In December 2022, FEMA released the Notice of Funding Opportunity making available $50 million for
revolving loan program funding. 23 DEM intends to apply to FEMA by April 29, 2023, for a capitalization
grant to establish a revolving loan program for the state of Florida. 24 DEM issued a public notice
seeking proposals from communities to develop a project proposal list to accompany its application to
FEMA. 25
Safeguarding Tomorrow Revolving Loan Fund Program – Effect of Bill
20 Each county that is entirely within a rural area of opportunity as designated by the Governor pursuant to s. 288.0656 or
each county for which the value of a mill will raise no more than $5 million in revenue, based on the taxable value certified
pursuant to s. 1011.62(4)(a)1.a., F.S., from the previous July 1, shall be considered a fiscally constrained county. There
are currently 29 fiscally constrained counties.
21 Division of Emergency Management, STORM Revolving Loan Fund - FAQ,
https://www.floridadisaster.org/globalassets/dem/mitigation/storm/storm-rlf-faq-3-13-2023.pdf (last visited April 4, 2023)
22 Id
23 Division of Emergency Management, STORM Revolving Loan Fund,
https://www.floridadisaster.org/dem/mitigation/safeguarding-tomorrow-through-ongoing-risk-mitigation-storm-revolving-
loan-fund/ (last visited April 4, 2023).
24 Id.
25 Division of Emergency Management, Public Notice RE Safeguarding Tomorrow Revolving Loan Fund,
https://www.floridadisaster.org/globalassets/dem/mitigation/storm/storm-rlf-public-notice-3-13-2023.pdf (last visited April 4,
2023).
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The bill appropriates $1,000,000 in nonrecurring funds from the General Revenue Fund and
$10,000,000 in nonrecurring funds from the Federal Grants Trust Fund to DEM to fund the
Safeguarding Tomorrow Revolving Loan Program. DEM may submit a budget amendment to the
Legislative Budget Commission to release the funds, which is contingent upon documentation of an
award or other approval by FEMA and DEM’s approved intended use plan for the funds.
Registered Contractors – Current Situation
Construction contractors are either certified or registered by the Construction Industry Licensing Board
(CILB) housed within the Department of Business and Professional Regulation (DBPR). 26 The CILB
consists of 18 members who are appointed by the Governor and confirmed by the Senate. 27 The CILB
meets to approve or deny applications for licensure, review disciplinary cases, and conduct informal
hearings relating to discipline. 28
"Certified contractors" are individuals who pass the state competency examination and obtain a
certificate of competency issued by DBPR. Certified contractors are able to obtain a certificate of
competency for a specific license category and are permitted to practice in that category in any
jurisdiction in the state. 29
“Certified specialty contractors” are contractors whose scope of work is limited to a particular phase of
construction, such as drywall or demolition. Certified specialty contractor licenses are created by the
CILB through rulemaking. Certified specialty contractors are permitted to practice in any jurisdiction in
the state. 30
“Registered contractors” are individuals who have taken and passed a local competency examination
and may practice the specific category of contracting for which he or she is approved, only in the local
jurisdiction for which the license is issued. 31
Registered Contractors – Effect of Bill
The bill allows registered contractors to engage in contracting for the types of work covered by their
registration within any area for which a state of emergency has been declared for a natural emergency.
This authorization will end 24 months after the expiration of the declared state of emergency. The local
jurisdiction that licenses the registered contractor may discipline the contractor for violations occurring
outside the licensing jurisdiction under these circumstances.
This section is effective upon becoming law.
Building Permits and Inspections – Current Situation
It is the intent of the Legislature that local governments have the power to inspect all buildings,
structures, and facilities within their jurisdiction in protection of the public’s health, safety, and welfare. 32
Every local government must enforce the Florida Building Code and issue building permits. 33 It is
unlawful for a person, firm, or corporation to construct, erect, alter, repair, secure, or demolish any
building without first obtaining a permit from the local government enforcing agency or from such
persons as may, by resolution or regulation, be directed to issue such permit. 34
26 See ss. 489.105, 489.107, and 489.113, F.S.
27 S. 489.107(1), F.S.
28 S. 489.107, F.S.
29 See ss. 489.105(6)-(8) and (11), F.S.
30 See ss. 489.108, 489.113, 489.117, and 489.131, F.S.
31 S. 489.117, F.S.
32 S. 553.72, F.S.
33 Ss.125.01(1)(bb), 125.56(1), and 553.80(1), F.S.
34 Ss.125.56(4)(a), 553.79(1), F.S.
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A local government may charge reasonable fees as set forth in a schedule of fees adopted by the
enforcing agency for the issuance of a building permit. 35 Such fees shall be used solely for carrying out
the local government’s responsibilities in enforcing the Building Code. 36 Enforcing the Building Code
includes the direct costs and reasonable indirect costs associated with training, review of building
plans, building inspections, re-inspections, building permit processing, and fire inspections. 37 Local
governments must post all building permit and inspection fee schedules on their website. 38
Any construction work that requires a building permit also requires plans and inspections to ensure the
work complies with the building code. The building code requires certain building, electrical, plumbing,
mechanical, and gas inspections. 39 Construction work may not be done beyond a certain point until it
passes an inspection.
Current law provides a set of deadlines for ordinary processing of a building permit, chief among them
that a local government must approve, approve with conditions, or deny an application for a building
permit within 120 days following receipt of a completed application. 40 Various laws require or
encourage local governments to further expedite the permitting process in certain situations, such as
for the construction of public schools, state colleges and universities 41 and affordable housing. 42
In addition to the inspections required by the Building Code, a building official may require other
inspections of any construction work to ascertain compliance with the provisions of the Building Code
and other laws that are enforced by the government entity. 43
Building Permits and Inspections – Effect of Bill
The bill authorizes local governments to create inspection teams to review and approve expedited
permits for temporary housing solutions, repairs, and renovations following a natural disaster.
The bill encourages municipalities and counties to establish interlocal agreements with other
jurisdictions to provide additional inspection services during a state of emergency. The bill also
encourages municipalities and counties to adopt plans to provide temporary accommodations to
contractors, utility workers, first responders, and others dispatched to aid in hurricane recovery efforts.
The bill provides that public areas such as fairgrounds and parking lots may be used for tents and
trailers for temporary accommodations.
The bill requires local governments to approve special processing procedures to expedite the issuance
of permits following a natural emergency for which the Governor has declared a state of emergency.
Permits to be expedited are those which do not require technical review, including, but not limited to
permits for:
• roof repairs;
• reroofing;
• electrical repairs;
• service changes; or
• the replacement of one window or door.
Local governments are also permitted to waive application and inspection fees for the expedited
permits.
35 S. 553.80 F.S.
36 Id.
37 S. 553.80 (7)(a)(1)
38 S.125.56 (4)(c) F.S., Section 166.222(2) F.S.
39 S. 110 of the Seventh edition of the Florida Building Code (Building).
40 S. 553.792(1)(a), F.S.
41 S. 553.80(6)(b)2., F.S.
42 See ss. 403.973(3), 420.5087(6)(c)8., and 553.80(6)(b)1., F.S.
43 S. 110.3.10 of the Seventh Edition of the Florida Building Code (Building).
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The bill provides that effective January 1, 2023, local governments located in areas with FEMA disaster
declarations during Hurricane Ian or Hurricane Nicole may not raise building inspection fees until
October 1, 2024. This section expires on June 30, 2025, and is effective upon becoming law.
Suspension of Expiration Dates for Permits During Emergencies – Current Situation
When the Governor declares a state of emergency for a natural emergency, the period to exercise
rights under a permit or other government authorization is suspended or tolled for the duration of the
emergency. The period remaining to exercise rights in accordance with such permits is extended for 6
months in addition to the suspended or tolled period.
The emergency suspension and extension provisions expressly apply to the following permits and
authorizations:
• Expiration of a development order issued by a local government;
• Expiration of a building permit;
• Expiration of an environmental resource permit issued by the Department of Environmental
Protection (DEP) or a water management district under ch. 373, part IV, F.S.;
• Expiration of consumptive use permits issued by DEP or a water management district under Part II
of ch. 373, F.S., related to land subject to a development agreement in which the permittee and
developer are the same or a related entity;
• The buildout date for a development of regional impact or any extension of such date under s.
380.06(7)(c), F.S.; and
• Expiration of development permits and development agreements authorized by state law, including
those authorized under the Florida Local Government Development Agreement Act, or issued by a
local government or other governmental entity. 44
To receive the benefit of such provisions, the holder must follow the procedure outlined in s.
252.363(1)(b), F.S. Specifically, within 90 days after the emergency declaration's termination, the
permit holder must provide written notice of the intent to exercise the right to toll or extend such permit.
The written notice must identify the specific permit or authorization qualifying for the extension to the
issuing authority. Once the permitholder has satisfied this procedure, the tolling and extension are
granted automatically or as a matter of law, and no further action on the part of the issuing authority is
needed. 45
The tolling and extension of permits and other authorizations does not apply to the following:
• A permit or other authorization for a building, improvement, or development located outside the
geographic area for which the declaration of a state of emergency applies;
• A permit or other authorization under any programmatic or regional general permit issued by the
Army Corps of Engineers;
• The holder of a permit or other authorization who is determined by the authorizing agency to be in
significant noncompliance with the conditions of the permit or other authorization through the
issuance of a warning letter or notice of violation, the initiation of formal enforcement, or an
equivalent action; and
• A permit or other authorization that is subject to a court order specifying an expiration date or
buildout date that would conflict with the extensions granted due to a state of emergency. 46
Suspension of Expiration Dates for Permits During Emergencies – Effect of Bill
44 S. 252.363(1)(a), F.S.
45 “Nothing in the statute imposes an obligation on the municipality to take any action extending development orders,
rather, it appears that the Legislature intended to place that burden on the holder of the permit who must provide written
notification to the issuing authority of his or her intent to exercise the tolling and extension of the statute.” See Op. Att’y
Gen. Fla. 12-13 (2012), http://www.myfloridalegal.com/ago.nsf/Opinions/0DF58A091F0DDBEC852579EB00743D48 (last
visited April 4, 2023).
46 S. 252.363(1)(d), F.S.
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The bill increases the extension of applicable building permits following a declaration of a state of
emergency from 6 to 24 months. The extension is capped at 48 months in the event of multiple natural
emergencies.
Consultants’ Competitive Negotiation Act – Current Situation
In 1972, Congress passed the Brooks Act, 47 which requires federal agencies to use a qualifications-
based selection process for architectural, engineering, and associated services, such as mapping and
surveying. Qualifications-based selection is a process whereby service providers are retained on the
basis of competency, qualifications, and experience, rather than price. In 1973, the Florida Legislature
enacted the Consultants’ Competitive Negotiation Act (CCNA), 48 which is modeled after the Brooks Act.
The CCNA requires state and local government agencies to procure the professional services of an
architect, professional engineer, landscape architect, or registered surveyor and mapper using a
qualifications-based selection process. 49
The CCNA establishes a three-phase process for procuring professional services:
• Phase 1 – Public announcement and qualification.
• Phase 2 – Competitive selection.
• Phase 3 – Competitive negotiation.
During Phase 1, the public announcement and qualification phase, state and local agencies must
publicly announce each occasion when professional services will be purchased for one of the following:
A project, when the basic construction cost is estimated by the agency to exceed $325,000; or
A planning or study activity, when the fee for professional services exceeds $35,000. 50
During Phase 2, the competitive selection phase, an agency must evaluate the qualifications and past
performance of interested consultants and select at least three consultants, ranked in order of
preference, that it considers the most highly qualified to perform the required services. During this
phase, the CCNA prohibits the agency from requesting, accepting, or considering proposals for the
compensation to be paid.
During Phase 3, the competitive negotiation phase, an agency must first negotiate compensation with
the highest ranked consultant. If the agency is unable to negotiate a satisfactory contract with that
consultant at a price the agency determines to be fair, competitive, and reasonable, negotiations with
the consultant must be formally terminated. The agency must then negotiate with the remaining ranked
consultants, in order of rank, and follow the same process until an agreement is reached. If the agency
is unable to negotiate a satisfactory contract with any of the ranked consultants, the agency must select
additional consultants, ranked in the order of competence and qualification without regard to price, and
continue negotiations until an agreement is reached. 51
The CCNA explicitly states it does not prohibit a continuing contract 52 between a firm and an agency. 53
A continuing contract is a contract for professional services entered into in accordance with the CCNA
between an agency and a firm whereby the firm provides professional services to the agency for
projects. 54 The CCNA prohibits firms that are parties to a continuing contract from being required to bid
against one another. 55
47 Public Law 92-582, 86 Stat. 1278 (1972).
48 Chapter 73-19, Laws of Fla., codified as s. 287.055, F.S.
49 S. 287.055, F.S.
50 S. 287.055(3)(a)1., F.S.
51 S. 287.055(5), F.S.
52 S. 287.055(2)(g), F.S.
53 S. 287.055(4)(d), F.S.
54 S. 287.055(2)(g), F.S.
55 Id.
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Current law authorizes the use of a continuing contract for construction projects in which the estimated
construction cost of each project does not exceed $4 million, for study activities if the fee for
professional services for each study does not exceed $500,000, or for work of a specified nature as
outlined in the contract required by the agency, with the contract being for a fixed term or with no time
limitation except the contract must include a termination clause. 56
Consultants’ Competitive Negotiation Act – Effect of Bill
The bill authorizes “continuing contracts” for construction projects in which the estimated construction
cost of each project does not exceed $15 million, if such contracts relate to repairs and remediation due
to damage caused by Hurricane Ian if executed through December 31, 2023.
This section is effective upon becoming law.
The bill provides that these changes expire on January 1, 2024 and the statute reverts back to the
current law limits on the expiration date. Contracts entered into prior to December 31, 2023 will be
permitted to be completed after such date.
Community Planning – Current Situation
The Community Planning Act provides counties and municipalities with the power to plan for future
development by adopting comprehensive plans. 57 Each county and municipality must maintain a
comprehensive plan to guide future development. 58
All development, both public and private, and all development orders approved by local governments
must be consistent with the local government’s comprehensive plan. 59 A comprehensive plan is
intended to provide for the future use of land, which contemplates a gradual and ordered growth, and
establishes a long-range maximum limit on the possible intensity of land use.
A locality’s comprehensive plan lays out the locations for future public facilities, including roads, water
and sewer facilities, neighborhoods, parks, schools, and commercial and industrial developments. A
comprehensive plan is made up of 10 required elements, each laying out regulations for a different
facet of development. 60
A comprehensive plan is implemented through the adoption of land development regulations 61 that are
consistent with the plan, and which contain specific and detailed provisions necessary to implement the
plan. 62 Substantially affected persons have the right to maintain administrative actions which assure
that land development regulations implement and are consistent with the comprehensive plan. 63
Development that does not conform to the comprehensive plan may not be approved by a local
government unless the local government amends its comprehensive plan first. State law requires a
56 S. 287.055(2)(g), F.S.
57 S. 163.3167(1), F.S.
58 S. 163.3167(2), F.S.
59 S. 163.3194(3), F.S
60 S. 163.3177(6), F.S. The 10 required elements include capital improvements; future land use plan; transportation;
general sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge; conservation;
recreation and open space; housing; coastal management; intergovernmental coordination; and property rights.
Throughout statutes exist plans and programs that may be added as optional elements.
61 “Land development regulations” means ordinances enacted by governing bodies for the regulation of any aspect of
development and includes any local government zoning, rezoning, subdivision, building construction, or sign regulations
or any other regulations controlling the development of land, except that this definition does not apply in s. 163.3213. See
s. 163.3164(26), F.S.
62 S. 163.3202, F.S.
63 S. 163.3213, F.S.
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proposed comprehensive plan amendment to receive two public hearings, the first held by the local
planning board, and subsequently by the governing board. 64
The Community Planning Act defines "development" as "the carrying out of any building activity or
mining operation, the making of any material change in the use or appearance of any structure or land,
or the dividing of land into three or more parcels." 65 When a party wishes to engage in development
activity, they must seek a development permit from the appropriate local government having
jurisdiction. Under the Community Planning Act, a development permit includes "any building permit,
zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other
official action of local government having the effect of permitting the development of land." 66 Once a
local government has officially granted or denied a development permit, the official action constitutes a
development order. 67 A development order vests certain rights related to the land. 68
Community Planning – Effect of Bill
The bill provides:
“A county or municipality located entirely or partially within 100 miles of where either
Hurricane Ian or Hurricane Nicole 69 made landfall shall not propose or adopt more
restrictive or burdensome amendments to its comprehensive plan or land development
regulations, nor propose or adopt more restrictive or burdensome procedures
concerning review, approval, or issuance of a site plan, development permit, or
development order, to the extent that those terms are defined by s. 163.3164, F.S.,
before October 1, 2024, and any such restrictive or burdensome comprehensive plan
amendment, land development regulation, or procedure shall be null and void ab
initio.” 70
This subsection applies retroactively to September 28, 2022 (the date of Hurricane Ian landfall in
Florida). However, the bill provides that any comprehensive plan amendment, land development
regulation amendment, site plan, development permit, or development order approved or adopted by a
county or municipality before or after the effective date of this section may be enforced if:
• The associated application is initiated by a private party other than the county or municipality;
and
• The property that is the subject of the application is owned by the initiating private party.
The section takes effect upon becoming a law and expires on June 30, 2025.
64 Ss. 163.3174(4)(a) and 163.3184, F.S.
65 S. 163.3164(14), F.S.
66 S. 163.3164(16), F.S.
67 See S. 163.3164(15), F.S.
68 See s. 163.3167(3), F.S.
69 All 67 counties in Florida were designated within the federal disaster declaration for Hurricane Ian, and 61 counties for
Hurricane Nicole.
70 Void ab initio means something was void from the beginning.
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Derelict Vessels – Current Situation
Fish and Wildlife Conservation Commission
The Fish and Wildlife Conservation Commission (FWC) is the agency responsible for regulating boating
in the state. 71 Through its Division of Law Enforcement, FWC works to enforce a variety of state and
federal boating laws, including regulations related to boating safety, waterway management, vessel
maintenance, and marine sanitation. FWC also exercises the regulatory and executive powers of the
state with respect to wild animal life, fresh water aquatic life, and marine life. 72 These powers include
authority with respect to the control and management of nonnative plant and animal species.
Derelict Vessels
A derelict vessel is a vessel that is left, stored, or abandoned in a wrecked, junked, or substantially
dismantled condition upon any public state waters; at a port in the state without the consent of the
agency that has jurisdiction of the port; or docked, grounded, or beached upon the property of another
without the consent of the owner of the property. 73
It is unlawful to store, leave, or abandon 74 a derelict vessel in Florida. 75 Violations are punishable by a
term of imprisonment of no more than one year and a fine of up to $1,000. 76 State law further provides
that a violation of derelict vessel laws may also be subject to a civil penalty of up to $75,000 per day. 77
Each day during any portion of which the violation occurs constitutes a separate offense. 78
At-risk Vessels
Current law also prohibits vessels that are at risk of becoming derelict from anchoring, mooring, or
occupying state waters. 79 A vessel is considered at risk of becoming derelict if any of the following
conditions exist:
• The vessel is taking on or has taken on water without an effective means to dewater.
• Spaces on the vessel that are designed to be enclosed are incapable of being sealed off or
remain open to the elements for extended periods.
• The vessel has broken loose or is in danger of breaking loose from its anchor.
• The vessel is listing due to water intrusion.
• The vessel does not have an effective means of propulsion for safe navigation within 72 hours
after the vessel owner or operator receives telephonic notice, in-person notice recorded on an
agency-approved body camera, or written notice, which may be provided by facsimile, electronic
mail, or other electronic means, stating such from an officer, and the vessel owner or operator is
unable to provide a receipt, proof of purchase, or other documentation of having ordered
necessary parts for vessel repair. 80
A violation for anchoring, mooring, or occupying a vessel at risk of becoming derelict on state waters is
a noncriminal infraction, for which the civil penalty is $100 for a first offense, $250 for a second offense
71 FWC, Boating, available at https://myfwc.com/boating/ (last visited April 7, 2023).
72 Art. IV, s. 9, FLA. CONST.
73 S. 823.11(1)(b), F.S.
74 S. 705.101(3), F.S., defines “abandoned property” as all tangible personal property that does not have an identifiable
owner and that has been disposed on public property in a wrecked, inoperative, or partially dismantled condition or has no
apparent intrinsic value to the rightful owner. The term includes derelict vessels.
75 S. 823.11(2), F.S.
76 Ss. 775.082(4)(a) and 775.083(1)(d), F.S.
77 S. 376.16(1), F.S.
78 Id.
79 S. 327.4107(1), F.S.
80 S. 327.4107(2), F.S.
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occurring 30 days or more after a first offense, and $500 for a third or subsequent offense occurring 30
days or more after a previous offense. 81
A vessel that has been the subject of three or more at-risk vessel violations within an 18-month period
that result in dispositions other than acquittal or dismissal is deemed a public nuisance. 82
Removal of Derelict and At-risk Vessels
The Division of Law Enforcement within FWC and its officers, the sheriffs of the various counties and
their deputies, municipal police officers, and any other law enforcement officer have the responsibility
and authority to enforce vessel safety and vessel title certificates, liens, and registration. 83
Both state and local law enforcement are authorized and empowered to relocate or remove a derelict
vessel from public waters if the derelict vessel obstructs, or threatens to obstruct, navigation or in any
way constitutes a danger to the environment, property, or persons. 84 Such law enforcement are also
authorized to relocate or remove a vessel declared a public nuisance. 85
When a law enforcement officer determines that a derelict vessel or a vessel declared a public
nuisance is present on state waters, the officer is required to place a notice on the vessel stating the
vessel is unlawfully upon state waters and must be removed within 21 days. 86 The notice must also
specify that if the vessel is not removed by the owner within 21 days, the vessel will be removed and
disposed of and that the owner or party deemed legally responsible for the vessel being in a derelict
condition will be liable for costs of removal, destruction, and disposal if not removed. 87
The costs incurred for relocating or removing a derelict vessel are recoverable against the vessel
owner. A vessel owner who neglects or refuses to pay the costs of removal, storage, and destruction of
the vessel, less any salvage value obtained by disposal of the vessel, is not entitled to be issued a
certificate of registration for such vessel, or any other vessel or motor vehicle, until the costs are paid. 88
FWC may provide grants to local governments for the removal, storage, destruction, and disposal of
derelict vessels from state waters if funds are appropriated for such grants. 89 Grants are awarded
based on a set of criteria outlined in FWC rules. 90 Removal or relocation of the vessel on private
property is not eligible for grant funding. 91 The grants provided to local governments for the removal,
storage, destruction, and disposal of derelict vessels may also be used for the removal, storage,
destruction, and disposal of vessels declared a public nuisance.
81 S. 327.73(1)(aa), F.S.
82 Id.
83 S. 943.10(1), F.S., defines “law enforcement officer” as any person who is elected, appointed, or employed full time by
any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make
arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal,
criminal, traffic, or highway laws of the state. The definition also includes all certified supervisory and command personnel
whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time
law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include
support personnel employed by the employing agency.
84 Ss. 376.15(3)(a) and 823.11(3), F.S.
85 Id.
86 S. 705.103(2)(a)(1)(b), F.S.
87 Id.
88 S. 705.103(4), F.S.
89 S. 376.15, F.S.
90 Rule 68-1.003, F.A.C.
91 National Oceanic and Atmospheric Association: Marine Debris Program, Abandoned and Derelict Vessels in Florida,
available at https://marinedebris.noaa.gov/abandoned-and-derelict-vessels/florida (last visited Nov. 18, 2021).
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A person who owns or operates a vessel that becomes derelict upon state waters solely as a result of a
boating accident that is reported to law enforcement, a hurricane, or another sudden event outside of
his or her control may not be charged with a violation if: 92
• The individual documents for law enforcement the specific event that led to the vessel being
derelict upon state waters; and
• The vessel has been removed from state waters or has been repaired or addressed such that it
is no longer derelict upon state waters within 7 days after a boating accident or other sudden
event outside of his or her control or within 45 days after a hurricane has passed.
This sudden accident or event exception does not apply to a vessel that was derelict upon state waters
before the stated accident or event.
Derelict Vessels – Effect of Bill
The bill clarifies that the FWC, an officer of the FWC, a law enforcement agency, or during a state of an
emergency declared by the Governor, DEM or its designee, may immediately begin the procedure, 93
such as posting a notice of removal on the vessel and ascertaining the owner of the vessel. The bill
provides that a person who owns or operates a vessel that becomes derelict upon state waters solely
as a result of a hurricane, or another sudden event outside of his or her control has an extended 45-day
deadline to bring derelict vessels into compliance or remove them from state waters. Final removal and
destruction of the vessel may only occur if the vessel remains derelict after the completion of the
procedure process and the end of the 45-day grace period.
Local Government Emergency Response Bridge Loan Program – Current Situation
Early in 2023, the Legislature establish the Local Government Emergency Response Bridge Loan
Program within the Department of Economic Opportunity (DEO) 94 to provide financial assistance to
local governments impacted by Hurricane Ian or Hurricane Nicole. The purpose of the loan program is
to assist these local governments in maintaining operations by bridging the gap between the time that
the declared disaster occurred and the time that additional funding sources or revenues are secured to
provide them with financial assistance. 95 The Legislature appropriated $50 million from the General
Revenue Fund to DEO to fund the program.
The loans may be issued during the 2022-2023 fiscal year or the 2023-2024 fiscal year, subject to
appropriation. 96 The loans are interest-free with the loan amount determined based upon demonstrated
need. 97 The loans must be paid back within one year, unless extended by up to 6 months by the DEO
based on the local government’s financial condition. 98
To be eligible, a local government must be a county or municipality located in an area designated in the
Federal Emergency Management Agency disaster declarations for Hurricane Ian or Hurricane Nicole. 99
Also, the local government must show that it may suffer or has suffered substantial loss of its tax or
other revenues as a result of the hurricane and demonstrate a need for financial assistance to enable it
to continue to perform its governmental operations. 100
A local government may only use loan funds to continue local governmental operations or to expand
and modify such operations to meet disaster-related needs. 101 The funds may not be used to finance or
92 S. 823.11 (2)(b)2.b, F.S.
93 See s. 705.103(2)(a), F.S.
94 S. 288.066 F.S.
95 S. 288.066 (1), F.S.
96 S. 288.066 (6)(a), F.S.
97 S. 288.066 (3), F.S.
98 S. 288.066 (3)(c), F.S.
99 S. 288.066 (2), F.S.
100 Id.
101 Id.
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supplant funding for capital improvements or to repair or restore damaged public facilities or
infrastructure. The DEO must coordinate with DEM to assess whether such loans would affect
reimbursement under federal programs for disaster-related expenses. 102
This program expires June 30, 2027. As loans are repaid, the DEO will remit the payments back to the
General Revenue Fund and upon expiration, the DEO must return all unencumbered funds and loan
payments back to the General Revenue Fund. 103
Local Government Emergency Revolving Bridge Loan Program – Effect of Bill
The bill extends the Local Government Emergency Bridge Loan Program for 11 additional years by
making it a revolving program and renaming it the “Local Government Emergency Revolving Bridge
Loan Program”. The revolving loan program will make funds available for local governments impacted
by federally declared disasters until July 1, 2038.
Upon the issuance of a federal disaster declaration, the DEO shall provide notice of application
requirements and the total amount of funds available and make loan information available to eligible
local governments. The eligible local government must submit a loan application within 12 months from
the date that a federal disaster was declared. The section further creates an application process and
sets forth the conditions that must be met by a local government in order to receive funds under the
program. Reasons for a loan application denial may include, but are not limited to, the loan risk, an
incomplete application, failure to demonstrate need, or the fact that receiving a loan may negatively
affect the local government’s eligibility for other federal programs. Moreover, this section sets forth the
obligations of the DEO to administer the program and manage repayments. The bill provides that funds
appropriated to the program are not subject to reversion.
The bill appropriates $50 million in nonrecurring funds from the General Revenue Fund to the
Economic Development Trust Fund of the DEO for the revolving bridge loan program. This section also
directs any funds that have not been loaned to a local government pursuant to a loan agreement as of
July 1, 2023, to be transferred to the Economic Development Trust Fund to be used for the Local
Government Emergency Revolving Bridge Loan Program established by the bill. Lastly, all loans made
pursuant to the existing Local Government Emergency Bridge Loan Program must be repaid into the
Economic Development Trust Fund and be made available for loans under the revolving loan program
provided in the bill. The cumulative effect of these changes is that $100 million in total will be available
for the revolving bridge loan program.
Effective Date
This act will take effect July 1, 2023 unless otherwise expressly provided in the act.
B. SECTION DIRECTORY:
Section 1: Creates 123.023, F.S., relating to temporary shelters.
Section 2: Creates s. 166.0335, F.S., relating to temporary shelters.
Section 3: Amends s. 252.35, F.S., relating to the State Emergency Act.
Section 4: Amends s. 252.363, F.S., relating to the tolling and extension of permits.
Section 5: Creates s. 252.391, F.S., relating to emergency financial plans.
Section 6: Amends s. 252.40, F.S., relating to mutual aid arrangements.
Section 7: Amends s. 287.055, F.S., relating to the Consultants’ Competitive Negotiation Act.
Section 8: Reverts sections relating to the Consultants’ Competitive Negotiation Act back to current
law on January 1, 2024.
Section 9: Amends s. 288.066, F.S., relating to Local Government Emergency Revolving Bridge Loan
Program.
Section 10: Amends s. 489.117, F.S., relating to specialty contractors.
102 S. 288.066 (6)(b), F.S.
103 S. 288.066(8), F.S.
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Section 11: Creates s. 553.7922, F.S., relating to expedited approval of certain permits.
Section 12: Amends s. 553.80, F.S., relating to building inspection fees.
Section 13: Limits comprehensive plan amendments, land development regulations, and development
permits and order changes in certain circumstances.
Section 14: Amends s. 823.11, F.S., relating to derelict vessels.
Section 15: Provides appropriations for the Safeguarding Tomorrow Through Risk Mitigation Act
Revolving Loan Fund Program.
Section 16: Provides appropriations for the Local Government Emergency Revolving Bridge Loan
Program.
Section 17: Provides effective date unless provided otherwise.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
The bill appropriates $1,000,000 in nonrecurring funds from the General Revenue Fund and
$10,000,000 in nonrecurring funds from the Federal Grants Trust Fund to DEM for the
Safeguarding Tomorrow Through Ongoing Risk Mitigation Act Revolving Loan Program. Such funds
will be held in reserve, contingent upon FEMA approval and release by the Legislative Budget
Commission.
The bill appropriates $50 million in nonrecurring funds from the General Revenue Fund to the
Economic Development Trust Fund of the DEO for the Local Government Emergency Revolving
Bridge Loan Program. The bill also directs any funds that have not been loaned to a local
government pursuant to a loan agreement as of July 1, 2023, to be transferred to the Economic
Development Trust Fund to be used for the Local Government Emergency Revolving Bridge Loan
Program established by the bill. Lastly, all loans made pursuant to the existing Local Government
Emergency Bridge Loan Program must be repaid into the Economic Development Trust Fund and
be made available for loans under the revolving loan program. The cumulative effect of these
appropriations and changes is that $100 million in total will be available for the revolving bridge loan
program.
By allowing the state government to enter into larger contracts for specified disaster relief
construction projects under a continuing contract, the state or a local government may save on
contractual and workload expenditures associated with the procurement of such projects.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
The bill will likely have an insignificant negative fiscal impact on local governments, as many of the
bill provisions are permissive rather than mandatory. Provisions that limit a local government’s
ability to raise building fees for a defined period of time or that requires local governments to
expedite building permits during emergencies may have a negative, but likely insignificant, fiscal
impact.
2. Expenditures:
The bill will likely have an insignificant negative fiscal impact on local governments, as many of the
bill provisions are permissive rather than mandatory.
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By allowing local governments to enter into larger contracts for specified disaster relief construction
projects under a continuing contract, the state or a local government may save on contractual and
workload expenditures associated with the procurement of such projects.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may have a positive, yet indeterminate fiscal impact on private sector businesses that provide
professional services under the CCNA, by allowing those entities to enter into larger contracts for
specified disaster relief projects under a continuing contract.
Registered contractors who are able to work outside of their local jurisdiction during a state of
emergency may see increased positive fiscal impact due to increased business.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
The county/municipality mandates provision of Art. VII, section 18, of the Florida Constitution may
apply because local governments may have expenditures related to prohibiting certain local
governments from raising building inspection fees during a certain timeframe, suspending or
extending a permit of a permit for the duration of the emergency, and expediting the approval
process of certain permits following a natural disaster. However, an exemption may apply because
these expenditures would likely be an insignificant fiscal impact.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
PCB COM 23-03 2023
1 A bill to be entitled
2 An act relating to natural emergencies; creating ss.
3 125.023 and 166.0335, F.S.; defining the term
4 "temporary shelter"; prohibiting counties and
5 municipalities, respectively, from prohibiting
6 temporary shelters on residential property for a
7 specified timeframe under certain circumstances;
8 amending s. 252.35, F.S.; requiring the Division of
9 Emergency Management to post a model contract for
10 debris removal on its website by a specified date;
11 requiring the model contract to be annually updated by
12 a specified date; requiring the division to prioritize
13 technical assistance and training relating to natural
14 disasters and emergencies to fiscally constrained
15 counties; requiring the division to administer a
16 revolving loan fund for certain local government
17 projects; amending s. 252.363, F.S.; increasing the
18 timeframe to exercise rights under a permit or other
19 authorization; limiting the timeframe to exercise
20 rights under a permit or other authorization to a
21 certain timeframe when multiple natural emergencies
22 occur; creating s. 252.391, F.S.; defining the term
23 "local governmental entity"; encouraging local
24 governmental entities to develop an emergency
25 financial plan for major disasters; providing the
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26 contents of the emergency financial plan; recommending
27 annual review of the emergency financial plan;
28 amending s. 252.40, F.S.; authorizing local
29 governments to create inspection teams for the review
30 and approval of certain expedited permits; encouraging
31 local governments to establish certain interlocal
32 agreements; encouraging local governments to develop
33 plans related to temporary accommodations of certain
34 individuals; amending s. 287.055, F.S.; revising the
35 definition of the term "continuing contract";
36 providing for the future expiration and reversion of
37 specified statutory text; amending s. 288.066, F.S.;
38 creating the Local Government Emergency Revolving
39 Bridge Loan Program within the Department of Economic
40 Opportunity to provide certain financial assistance to
41 local governments impacted by federally declared
42 disasters; conforming provisions to changes made by
43 the act; providing construction; authorizing the
44 department to provide interest-free loans to eligible
45 local governments through specified means; requiring
46 the department to prescribe a loan application;
47 requiring the department to determine the loan amount
48 based on certain factors; authorizing the department
49 to deny a loan application and providing specified
50 reasons for such denial; requiring the department to
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51 provide certain notice and make loan information
52 available to eligible local governments; requiring
53 loan repayments to be returned to the loan fund;
54 providing that funds appropriated for the program are
55 not subject to reversion; providing for expiration;
56 amending s. 489.117, F.S.; authorizing a registered
57 contractor to engage in contracting under certain
58 circumstances; providing an expiration timeframe for
59 such authorization; authorizing the local jurisdiction
60 to discipline the registered contractor under certain
61 circumstances; creating s. 553.7922, F.S.; requiring
62 local governments impacted by certain emergencies to
63 approve special processing procedures to expedite
64 certain permits; amending s. 553.80, F.S.; prohibiting
65 certain local governments from raising building
66 inspection fees during a certain timeframe; providing
67 for future expiration; prohibiting counties and
68 municipalities located within a certain area from
69 adopting or amending certain amendments or procedures
70 for a specified period; declaring that such amendments
71 or procedures are null and void; providing for
72 retroactive application; providing that certain
73 comprehensive plan amendments, land development
74 regulations, site plans, and development permits or
75 orders may be enforced; providing for expiration;
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76 amending s. 823.11, F.S.; authorizing certain persons
77 to engage in a process relating to the removal and
78 destruction of derelict vessels; providing
79 appropriations; providing for the transfer of certain
80 appropriated funds to the Economic Development Trust
81 Fund of the Department of Economic Opportunity;
82 requiring that loan repayments be repaid to the
83 Economic Development Trust Fund; providing effective
84 dates.
85
86 Be It Enacted by the Legislature of the State of Florida:
87
88 Section 1. Section 125.023, Florida Statutes, is created
89 to read:
90 125.023 Temporary shelter prohibition.—
91 (1) For the purposes of this section, the term "temporary
92 shelter" includes, but is not limited to, a recreational
93 vehicle, trailer, or similar structure placed on a residential
94 property.
95 (2) Notwithstanding any other law, ordinance, or
96 regulation to the contrary, following the declaration of a state
97 of emergency issued by the Governor for a natural emergency as
98 defined in s. 252.34(8) during which a permanent residential
99 structure was damaged and rendered uninhabitable, a county may
100 not prohibit the placement of one temporary shelter on the
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101 residential property for up to 36 months after the date of the
102 declaration or until a certificate of occupancy is issued on the
103 permanent residential structure on the property, whichever
104 occurs first, if all of the following circumstances apply:
105 (a) The resident makes a good faith effort to rebuild or
106 renovate the damaged permanent residential structure, including,
107 but not limited to, applying for a building permit, submitting a
108 plan or design to the county, or obtaining a construction loan.
109 (b) The temporary shelter is connected to water and
110 electric utilities and does not present a threat to health and
111 human safety.
112 (c) The resident lives in the temporary structure.
113 Section 2. Section 166.0335, Florida Statutes, is created
114 to read:
115 166.0335 Temporary shelter prohibition.—
116 (1) For the purposes of this section, the term "temporary
117 shelter" includes, but is not limited to, a recreational
118 vehicle, trailer, or similar structure placed on a residential
119 property.
120 (2) Notwithstanding any other law, ordinance, or
121 regulation to the contrary, following the declaration of a state
122 of emergency issued by the Governor for a natural emergency as
123 defined in s. 252.34(8) during which a permanent residential
124 structure was damaged and rendered uninhabitable, a municipality
125 may not prohibit the placement of one temporary shelter on the
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126 residential property for up to 36 months after the date of the
127 declaration or until a certificate of occupancy is issued on the
128 permanent residential structure on the property, whichever
129 occurs first, if all of the following circumstances apply:
130 (a) The resident makes a good faith effort to rebuild or
131 renovate the damaged permanent residential structure, including,
132 but not limited to, applying for a building permit, submitting a
133 plan or design to the municipality, or obtaining a construction
134 loan.
135 (b) The temporary shelter is connected to water and
136 electric utilities and does not present a threat to health and
137 human safety.
138 (c) The resident lives in the temporary structure.
139 Section 3. Effective upon becoming a law, paragraphs (bb),
140 (cc), and (dd) are added to subsection (2) of section 252.35,
141 Florida Statutes, to read:
142 252.35 Emergency management powers; Division of Emergency
143 Management.—
144 (2) The division is responsible for carrying out the
145 provisions of ss. 252.31-252.90. In performing its duties, the
146 division shall:
147 (bb) Post on its website a model of a local government
148 contract for debris removal to be used by political
149 subdivisions. The initial model contract must be posted to the
150 website no later than June 1, 2023, and, thereafter, the model
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151 contract must be annually updated and posted to the website no
152 later than June 1.
153 (cc) Prioritize technical assistance and training to
154 fiscally constrained counties as defined in s. 218.67(1) on
155 aspects of safety measures, preparedness, prevention, response,
156 recovery, and mitigation relating to natural disasters and
157 emergencies.
158 (dd) Administer a revolving loan program for local
159 government hazard mitigation projects.
160 Section 4. Paragraph (a) of subsection (1) of section
161 252.363, Florida Statutes, is amended to read:
162 252.363 Tolling and extension of permits and other
163 authorizations.—
164 (1)(a) The declaration of a state of emergency issued by
165 the Governor for a natural emergency tolls the period remaining
166 to exercise the rights under a permit or other authorization for
167 the duration of the emergency declaration. Further, the
168 emergency declaration extends the period remaining to exercise
169 the rights under a permit or other authorization for 24 6 months
170 in addition to the tolled period. The extended period to
171 exercise the rights under a permit or other authorization may
172 not exceed 48 months in total in the event of multiple natural
173 emergencies for which the Governor declares a state of
174 emergency. This paragraph applies to the following:
175 1. The expiration of a development order issued by a local
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176 government.
177 2. The expiration of a building permit.
178 3. The expiration of a permit issued by the Department of
179 Environmental Protection or a water management district pursuant
180 to part IV of chapter 373.
181 4. Permits issued by the Department of Environmental
182 Protection or a water management district pursuant to part II of
183 chapter 373 for land subject to a development agreement under
184 ss. 163.3220-163.3243 in which the permittee and the developer
185 are the same or a related entity.
186 5. The buildout date of a development of regional impact,
187 including any extension of a buildout date that was previously
188 granted as specified in s. 380.06(7)(c).
189 6. The expiration of a development permit or development
190 agreement authorized by Florida Statutes, including those
191 authorized under the Florida Local Government Development
192 Agreement Act, or issued by a local government or other
193 governmental agency.
194 Section 5. Section 252.391, Florida Statutes, is created
195 to read:
196 252.391 Emergency financial plans.—
197 (1) As used in this section, the term "local governmental
198 entity" means a county, municipality, or district school board.
199 (2) Each local governmental entity is encouraged to
200 develop an emergency financial plan for major natural disasters
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201 that may impact its jurisdiction. Disasters include, but are not
202 limited to, hurricanes, tornadoes, floods, and wildfires.
203 (3) Each emergency financial plan should be based on the
204 likely frequency of the disaster's occurrence. The financial
205 plan should include a calculation of the costs for the natural
206 disaster event and a determination of the financial resources
207 available to the local governmental entity. If insufficient
208 funds are available to address the disaster event, the emergency
209 financial plan should identify strategies to close the gap
210 between the disaster event costs and the local governmental
211 entity's financial capacity. Such strategies may include rainy
212 day funds, reprioritizing its annual budget, and borrowing.
213 (4) Local governmental entities should annually review
214 their emergency financial plans to address changes in
215 conditions.
216 Section 6. Subsections (3) and (4) are added to section
217 252.40, Florida Statutes, to read:
218 252.40 Mutual aid arrangements.—
219 (3) Local governments may create inspection teams to
220 review and approve expedited permits for temporary housing
221 solutions, repairs, and renovations after a natural disaster.
222 Local governments are encouraged to establish interlocal
223 agreements with other jurisdictions to provide additional
224 inspection services during a state of emergency.
225 (4) Municipalities and counties are encouraged to develop
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226 and adopt plans to provide temporary accommodations for
227 contractors, utility workers, first responders, and others
228 dispatched to aid in hurricane recovery efforts. Public areas,
229 including, but not limited to, fairgrounds and parking lots, may
230 be used for tents and trailers for such temporary
231 accommodations.
232 Section 7. Effective upon becoming a law, paragraph (g) of
233 subsection (2) of section 287.055, Florida Statutes, is amended
234 to read:
235 287.055 Acquisition of professional architectural,
236 engineering, landscape architectural, or surveying and mapping
237 services; definitions; procedures; contingent fees prohibited;
238 penalties.—
239 (2) DEFINITIONS.—For purposes of this section:
240 (g) A "continuing contract" is a contract for professional
241 services entered into in accordance with all the procedures of
242 this act between an agency and a firm whereby the firm provides
243 professional services to the agency for projects in which the
244 estimated construction cost of each individual project under the
245 contract does not exceed $4 million, for study activity if the
246 fee for professional services for each individual study under
247 the contract does not exceed $500,000, or for work of a
248 specified nature as outlined in the contract required by the
249 agency, with the contract being for a fixed term or with no time
250 limitation except that the contract must provide a termination
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251 clause. Firms providing professional services under continuing
252 contracts shall not be required to bid against one another. The
253 term "continuing contract" includes contracts executed through
254 December 31, 2023, for professional services to the agency for
255 projects related to repairs and remediation to a specific site
256 due to damage caused by Hurricane Ian in which the estimated
257 construction cost for each individual project does not exceed
258 $15 million.
259 Section 8. The amendments made by this act to s.
260 287.055(2)(g), Florida Statutes, expire on January 1, 2024, and
261 the text of that paragraph shall revert to that in existence on
262 the day before the date that this act became a law, except that
263 any amendments to such text enacted other than by this act shall
264 be preserved and continue to operate to the extent that such
265 amendments are not dependent upon the portions of the text which
266 expire pursuant to this section.
267 Section 9. Section 288.066, Florida Statutes, as created
268 by section 1 of chapter 2023-1, Laws of Florida, is amended to
269 read:
270 288.066 Local Government Emergency Revolving Bridge Loan
271 Program.—
272 (1) CREATION.—The Local Government Emergency Revolving
273 Bridge Loan Program is created, subject to appropriation, within
274 the department to provide financial assistance to local
275 governments impacted by federally declared disasters Hurricane
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276 Ian or Hurricane Nicole. The purpose of the loan program is to
277 assist these local governments in maintaining government
278 operations by bridging the gap between the time that the
279 declared disaster occurred and the time that additional funding
280 sources or revenues are secured to provide them with financial
281 assistance.
282 (2) ELIGIBILITY.—To be eligible for a loan under the
283 program, a local government must be a county or a municipality
284 located in an area designated in a the Federal Emergency
285 Management Agency disaster declaration declarations for
286 Hurricane Ian or Hurricane Nicole. The local government must
287 show that it may suffer or has suffered substantial loss of its
288 tax or other revenues as a result of the disaster hurricane and
289 demonstrate a need for financial assistance to enable it to
290 continue to perform its governmental operations. Access to and
291 eligibility for the loan program supersedes any local government
292 charter or borrowing limitations that would otherwise
293 financially constrain the local government's ability to recover
294 from a disaster.
295 (3) LOAN TERMS.—
296 (a) The department may provide interest-free loans to
297 eligible local governments through a promissory note or other
298 form of written agreement evidencing an obligation to repay the
299 borrowed funds to the department.
300 (b) The amount of each loan must be based upon
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301 demonstrated need and must be disbursed to the local government
302 in a lump sum.
303 (c) The term of the loan is up to 24 months 1 year, unless
304 otherwise extended by the department. However, the department
305 may extend loan terms for up to 6 months based on the local
306 government's financial condition.
307 (4) APPLICATION.—The department shall prescribe a loan
308 application and may request any other information determined
309 necessary by the department to review and evaluate the
310 application. The eligible local government must submit a loan
311 application within the 12 months after the date that the federal
312 disaster was declared. Upon receipt of an application, the
313 department shall review the application and may request
314 additional information as necessary to complete the review and
315 evaluation. If the loan application is approved, the department
316 shall determine the amount to be loaned, which may be a lower
317 amount than requested, based on the information provided and the
318 total amount of funds available to be loaned and in relation to
319 demonstrated need from other eligible applicants. If the loan
320 application is denied, reasons for the denial may include, but
321 are not limited to, the loan risk, an incomplete application,
322 failure to demonstrate need, or the fact that receiving a loan
323 may negatively affect the local government's eligibility for
324 other federal programs.
325 (5)(4) USE OF LOAN FUNDS.—A local government may use loan
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326 funds only to continue local governmental operations or to
327 expand or modify such operations to meet disaster-related needs.
328 The funds may not be used to finance or supplant funding for
329 capital improvements or to repair or restore damaged public
330 facilities or infrastructure.
331 (6)(5) LOAN REPAYMENT.—
332 (a) The local government may make payments against the
333 loan at any time without penalty. Early repayment is encouraged
334 as other funding sources or revenues become available to the
335 local government.
336 (b) Loans become due and payable in accordance with the
337 terms of the agreement.
338 (7)(6) ADMINISTRATION.—
339 (a) Upon the issuance of a federal disaster declaration,
340 the department shall provide notice of application requirements
341 and the total amount of funds available and shall make loan
342 information available to eligible local governments. Based upon
343 the amount of funds in the Economic Development Trust Fund
344 available to be loaned and anticipated balances, the department
345 may make funds available in an amount reasonably related to the
346 anticipated need, based upon the impacts of the federal
347 disaster, up to the total amount available The department may
348 approve loans in the 2022-2023 fiscal year or the 2023-2024
349 fiscal year up to the total amount appropriated.
350 (b) The department must coordinate with the Division of
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351 Emergency Management or other applicable state agencies to
352 assess whether such loans would affect reimbursement under
353 federal programs for disaster-related expenses.
354 (c) All repayments of principal and interest must be
355 returned to the loan fund and made available as provided in this
356 section. Notwithstanding s. 216.301, funds appropriated for this
357 program are not subject to reversion Upon receipt of any loan
358 payment from a local government, the department shall transfer
359 the funds to the General Revenue Fund.
360 (8)(7) RULES.—The department may adopt rules to implement
361 this section.
362 (9)(8) EXPIRATION.—This section expires July 1, 2038 June
363 30, 2027. A loan may not be awarded after June 30, 2038. Upon
364 expiration, all unencumbered funds and loan repayments made on
365 or after July 1, 2038, must be transferred revert to the General
366 Revenue Fund.
367 Section 10. Effective upon becoming a law, subsection (5)
368 is added to section 489.117, Florida Statutes, to read:
369 489.117 Registration; specialty contractors.—
370 (5) Notwithstanding paragraph (1)(b), a registered
371 contractor may engage in contracting only for work covered by
372 the registration within an area for which a state of emergency
373 is declared pursuant to s. 252.36 for a natural emergency. This
374 authorization terminates 24 months after the expiration of the
375 declared state of emergency. The local jurisdiction that
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376 licenses the registered contractor may discipline the registered
377 contractor for violations occurring outside the licensing
378 jurisdiction which occur during the period such work is
379 authorized under this subsection.
380 Section 11. Section 553.7922, Florida Statutes, is created
381 to read:
382 553.7922 Local government-expedited approval of certain
383 permits.—Following a state of emergency declared pursuant to s.
384 252.36 for a natural emergency, local governments impacted by
385 the emergency shall approve special processing procedures to
386 expedite permit issuance for permits that do not require
387 technical review, including, but not limited to, roof repairs,
388 reroofing, electrical repairs, service changes, or the
389 replacement of one window or one door. Local governments may
390 waive application and inspection fees for permits expedited
391 under this section.
392 Section 12. Effective upon becoming a law, present
393 subsections (8) and (9) of section 553.80, Florida Statutes, are
394 redesignated as subsections (9) and (10), respectively, and a
395 new subsection (8) is added to that section, to read:
396 553.80 Enforcement.—
397 (8) Effective January 1, 2023, local governments located
398 in areas designated in the Federal Emergency Management Agency
399 disaster declarations for Hurricane Ian or Hurricane Nicole may
400 not raise building inspection fees, as authorized by s.
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401 125.56(2) or s. 166.222 and this section, before October 1,
402 2024. This subsection expires June 30, 2025.
403 Section 13. (1) A county or municipality located entirely
404 or partially within 100 miles of where either Hurricane Ian or
405 Hurricane Nicole made landfall shall not propose or adopt more
406 restrictive or burdensome amendments to its comprehensive plan
407 or land development regulations, nor propose or adopt more
408 restrictive or burdensome procedures concerning review,
409 approval, or issuance of a site plan, development permit, or
410 development order, to the extent that those terms are defined by
411 s. 163.3164, Florida Statutes, before October 1, 2024, and any
412 such restrictive or burdensome comprehensive plan amendment,
413 land development regulation, or procedure shall be null and void
414 ab initio. This subsection applies retroactively to September
415 28, 2022.
416 (2) Notwithstanding subsection (1), any comprehensive plan
417 amendment, land development regulation amendment, site plan,
418 development permit, or development order approved or adopted by
419 a county or municipality before or after the effective date of
420 this section may be enforced if:
421 (a) The associated application is initiated by a private
422 party other than the county or municipality; and
423 (b) The property that is the subject of the application is
424 owned by the initiating private party.
425 (3) This section shall take effect upon becoming a law and
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426 expires June 30, 2025.
427 Section 14. Paragraph (d) is added to subsection (2) of
428 section 823.11, Florida Statutes, to read:
429 823.11 Derelict vessels; relocation or removal; penalty.—
430 (2)
431 (d) Notwithstanding the additional 45 days provided in
432 sub-subparagraph (b)2.b. during which an owner or a responsible
433 party may not be charged for a violation of this section, the
434 commission, an officer of the commission, a law enforcement
435 agency or officer specified in s. 327.70, or, during a state of
436 emergency declared by the Governor, the Division of Emergency
437 Management or its designee, may immediately begin the process
438 set forth in s. 705.103(2)(a) and, once that process has been
439 completed and the 45 days provided herein have passed, any
440 vessel that has not been removed or repaired such that it is no
441 longer derelict upon the waters of this state may be removed and
442 destroyed as provided therein.
443 Section 15. For the 2023-2024 fiscal year, the sums of $1
444 million in nonrecurring funds from the General Revenue Fund and
445 $10 million in nonrecurring funds from the Federal Grants Trust
446 Fund are appropriated to the Division of Emergency Management to
447 fund the Safeguarding Tomorrow Through Ongoing Risk Mitigation
448 Act Revolving Loan Program. These funds shall be placed in
449 reserve. The division is authorized to submit a budget amendment
450 for release of the funds held in reserve for approval by the
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451 Legislative Budget Commission pursuant to chapter 216, Florida
452 Statutes. Release is contingent upon documentation of an award
453 or other approval by the Federal Emergency Management Agency and
454 the division's approved intended use plan for the funds.
455 Section 16. (1) For the 2023-2024 fiscal year, the sum of
456 $50 million in nonrecurring funds is appropriated from the
457 General Revenue Fund to the Economic Development Trust Fund of
458 the Department of Economic Opportunity to fund the Local
459 Government Emergency Revolving Bridge Loan Program.
460 (2) Funds appropriated in section 3 of chapter 2023-1,
461 Laws of Florida, for the Local Government Emergency Bridge Loan
462 Program which have not been loaned to a local government
463 pursuant to a loan agreement as of July 1, 2023, shall be
464 transferred by nonoperating budget authority to the Economic
465 Development Trust Fund of the Department of Economic Opportunity
466 to be used for the Local Government Emergency Revolving Bridge
467 Loan Program.
468 (3) Notwithstanding sections 1 and 3 of chapter 2023-1,
469 Laws of Florida, all loan repayments for loans made under the
470 Local Government Emergency Bridge Loan Program shall be repaid
471 into the Economic Development Trust Fund and be made available
472 for loans under the Local Government Emergency Revolving Bridge
473 Loan Program.
474 Section 17. Except as otherwise expressly provided in this
475 act and except for this section, which shall take effect upon
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476 becoming a law, this act shall take effect July 1, 2023.
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COMMERCE COMMITTEE
PCB COM 23-03 by Rep. Giallombardo
Natural Emergencies
AMENDMENT SUMMARY
April 10, 2023
Amendment 1 by Rep. Giallombardo (between lines 473 and 474):
• Extends the date for certain fire control districts to submit the statutorily-required
performance reviews until January 1, 2024, because of delays caused by Hurricane Ian.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. PCB COM 23-03 (2023)
Amendment No.1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/O OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Commerce Committee
2 Representative Giallombardo offered the following:
3
4 Amendment (with title amendment)
5 Between lines 473 and 474, insert:
6 Section 17. Notwithstanding the timeframe specified in s.
7 189.0695 (2)(c) and (d), an independent special fire control
8 district located entirely or partially within 50 miles of where
9 Hurricane Ian made landfall that was required to submit its
10 final report of the performance review by July 1, 2023, may file
11 such report no later than January 1, 2024.
12
13
14 -----------------------------------------------------
15 T I T L E A M E N D M E N T
16 Remove lines 83-84 and insert:
PCB COM 23-03 a1
Published On: 4/7/2023 8:41:51 PM
Page 1 of 2
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. PCB COM 23-03 (2023)
Amendment No.1
17 Economic Development Trust Fund; authorizing independent special
18 fire control districts to file a specified report on an
19 alternative schedule under certain circumstances; providing
20 effective dates.
PCB COM 23-03 a1
Published On: 4/7/2023 8:41:51 PM
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PCB COM 23-04
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: PCB COM 23-04 Insurer Accountability
SPONSOR(S): Commerce Committee
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Commerce Committee Fortenberry Hamon
SUMMARY ANALYSIS
The bill makes various changes designed to increase insurer accountability in the following ways:
• Agent Licensing: allows the Department of Financial Services (DFS) to deny licensure to an applicant
who violated of the Florida Insurance Code (Insurance Code).
• Examination of Insurers: requires a risk-based assessment for scheduling Office of Insurance Regulation
(OIR) financial examinations and of market conduct examinations of insurers following a hurricane.
• Insurance Policy/Claims Handling: identifies two new acts that constitute unfair methods of competition
or unfair or deceptive acts by an insurer or agent; prohibits Citizens Property Insurance Corporation from
declaring a property ineligible if the property has unrepaired damage that is the subject of a claim being
serviced by the Florida Insurance Guaranty Association; clarifies that if a roof deductible is applied to a loss
under a residential property insurance policy, no other deductible may be applied; provides a tolling of time
applicable to a servicemember who is deployed to a combat zone or combat support posting; clarifies that
nothing in the Bill SB 2A (2022A) impairs insurance contract rights in existence when the bill became law.
• Fines: increases the maximum fines for failure to timely respond to consumer complaints; increases the
maximum fines that OIR may assess if an insurer violates the Insurance Code; creates fines for insurer
violations of the Insurance Code related to a declared state of emergency; increases the maximum fines
that may be assessed for unfair methods of competition or unfair or deceptive acts or practices by any
individual or company engaged in the transaction of insurance.
• Reporting: requires OIR to create annual and quarterly reports of its actions to enforce insurer compliance
with the Insurance Code; requires DFS Division of Investigative and Forensic Services to create an annual
report regarding investigations and prosecutions of insurance fraud.
• Rates/Premiums: requires residential property insurers to post hurricane mitigation discount information
on their websites; requires OIR to reevaluate fixtures or construction techniques demonstrated to reduce
windstorm losses, and associated insurance premium discounts every five years.
• Agency Staffing: appropriates positions to DFS and OIR to implement the bill.
The bill has no impact on local government revenues and expenditures. It may have a positive impact on state
revenues and a negative impact on state expenditures. It has an indeterminate negative direct economic
impact on the private sector.
The bill has an effective date of July 1, 2023.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: pcb04.COM
DATE: 4/8/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Insurance Agent Licensing
Background
The Department of Financial Services (DFS) has broad duties, including licensure and regulation of
insurance agents, agencies, and adjusters; insurance consumer assistance and protection; and holding
and attempting to return unclaimed property to its rightful owner. 1 DFS has a number of regulatory
responsibilities over the Florida insurance market. DFS regulates insurance adjusters, which includes
public adjusters, independent adjusters, and company employee adjusters and conducts insurance-
related consumer outreach through its Division of Consumer Services (Consumer Services). The
Division of Workers’ Compensation within DFS administers the workers’ compensation system through
enforcement of coverage requirements, 2 administration of workers’ compensation health care delivery
system, 3 data collection, 4 and assisting injured workers, employers, insurers, and providers in fulfilling
their responsibilities. 5 DFS also administers the rehabilitation and liquidation of insolvent insurers.
Effect of the Bill – Licensure
The bill provides that DFS may deny licensure to an applicant who, within seven years of application,
has been found guilty of, or pleaded guilty or nolo contendere to a misdemeanor that is also a violation
of the Florida Insurance Code (Insurance Code).
Examination of Insurers
Background
The Office of Insurance Regulation (OIR) provides oversight for specified insurance products, insurers
and other risk bearing entities in Florida. 6 The Financial Services Commission (FSC), composed of the
Governor, the Attorney General, the Chief Financial Officer, and the Commissioner of Agriculture,
serves as agency head of the Office of Insurance Regulation for purposes of rulemaking. Further, the
FSC appoints the commissioner of the Florida Office of Insurance Regulation.
As part of their regulatory oversight, OIR may suspend or revoke an insurer’s certificate of authority
under certain conditions. 7 OIR is responsible for examining the affairs, transactions, accounts, records,
and assets of each insurer that holds a certificate of authority to transact insurance business in Florida. 8
As part of the examination process, all persons being examined must make available to OIR the
accounts, records, documents, files, information, assets, and matters in their possession or control that
relate to the subject of the examination. 9 OIR is also authorized to conduct market conduct
examinations to determine compliance with applicable provisions of the Insurance Code. 10
1 See, e.g., Florida Department of Financial Services, What is the Purpose of the Department, https://oppaga.fl.gov/ (last
visited Apr. 2, 2023).
2 S. 440.107(3), F.S.
3 S. 440.13, F.S.
4 Ss. 440.185 and 440.593, F.S.
5 S. 440.191, F.S.
6 S. 20.121(3)(a), F.S.
7 S. 624.418, F.S.
8 S. 624.316(1)(a), F.S.
9 S. 624.318(2), F.S.
10 S. 624.3161, F.S.
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DATE: 4/8/2023
Financial Examinations
OIR is responsible for all activities concerning insurers and other risk-bearing entities such as licensing,
solvency, rates, and policy forms. The law requires OIR to conduct financial examinations of insurers.
The scope of the financial examination includes a review of the affairs, records, transactions,
accounting procedures and financial condition of an insurer. 11 OIR is charged with conducting an exam
once every five years, with the exception of domestic insurers that have held a certificate of authority
for less than three years, which are required to be examined on an annual basis. 12 OIR is required to
examine an insurer applying for an initial certificate of authority prior to issuing the certificate of
authority. 13
Effect of the Bill – Financial Examinations
The bill changes OIR’s mandatory financial examination schedule to the following risk-based schedule:
• High-risk insurers must be examined at least once every three years.
• Average-risk insurers must be examined at least once every five years.
• Low-risk insurers must be examined at least once every seven years.
Financial examinations must cover the preceding fiscal years since the last examination, except for
examinations of low-risk insurers, in which case the examination must cover the preceding five fiscal
years. The bill requires that OIR create, and that FSC must adopt by rule, a risk-based selection
methodology for scheduling and conducting financial exams, which much include:
• Use of required risk-based capital reports to prioritize financial examinations. 14
• Consideration of financial strength ratings, downgrades, or threatened downgrades.
• Prioritization of property insurers for which OIR identifies significant solvency concerns.
• Any other conditions OIR deems necessary for the protection of the public.
In addition to the methodology, the rule must include a plan to implement the risk-based examination
schedule. OIR must present the proposed rule to the FSC no later than October 1, 2023.
Market Conduct Exams
OIR is authorized to perform a market conduct examination of insurers and other related entities. 15 The
purpose of the examination is to determine the entity’s compliance with Florida law. 16 The costs of the
examination are paid by the subject entity. 17 OIR is may conduct a market conduct of any authorized
insurer after a hurricane, if the insurer:
• Is among the top 20 percent of insurers based upon the ratio of hurricane-related claims to the
property insurance policies in force;
• Is among the top 20 percent of insurers based upon of the ratio of consumer complaints to
hurricane-related claims;
• Has made significant payments to its managing general agent since the hurricane; or
• As determined by OIR for any other reason.
During a market conduct examination, OIR may examine the affairs, records, transactions, accounting
procedures and financial condition of an insurer as relevant to the actions that gave rise to the
examination. 18 The market conduct examination, when conducted post hurricane, must be started
11 S. 624.316, F.S.
12 Id.
13 Id.
14 Risk-based capital is a statutory minimum level of capital that is based on tan insurance company’s size and the
inherent riskiness of its financial assets and operations. NAIC, Risk-based Capital, https://content.naic.org/cipr-topics/risk-
based-capital (last visited Apr. 7, 2023).
15 S. 624.3161(1), F.S.
16 Id.
17 S. 624.3161(4), F.S.
18 See ss. 624.316 and 624.3161, F.S.
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within 18 months after the storm’s landfall. The insurer’s managing general agent must be included in
the market conduct examination, as if it were the insurer.
If a market conduct examination reveals that the “insurer has exhibited a pattern or practice of willful
violations of an unfair insurance trade practice related to claims-handling which caused harm to
policyholders,” OIR may order the insurer to file its claims-handling practices and procedures with OIR
for review and inspection. 19 The practices and procedures are to be held by OIR for 36 months and are
considered public records, not trade secrets, during such period. 20 The term “claims-handling practices
and procedures” is defined as “any policies, guidelines, rules, protocols, standard operating
procedures, instructions, or directives that govern or guide how and the manner in which an insured’s
claims for benefits under any policy will be processed.” 21
Effect of the Bill – Market Conduct Examinations
The bill removes OIR’s discretion to conduct post-hurricane market conduct examinations that was
established in SB 2A (2022A). Instead, OIR must conduct post-hurricane market conduct examinations
if, at any time more than 90 days after the end of a hurricane, an insurer meets the post-hurricane
examination criteria.
The office must create, and the FSC must adopt by rule, a risk-based selection methodology for
scheduling and conducting market conduct examinations. Under this methodology, OIR must initiate a
market conduct examination against an insurer if the following conditions exist:
• An insurance regulator in another state has initiated or taken regulatory action against the
insurer or entity.
• DFS and OIR have received a disproportionate number of certain claims-handling complaints
against the insurer based on its market share.
• The results of a National Association of Insurance Commissioners (NAIC) Market Conduct
Annual Statement indicate the insurer is a negative outlier with regard to particular metrics. 22
• There is evidence the insurer is engaged in a pattern or practice of violations of the Unfair
Insurance Trade Practices Act.
• Any other conditions that OIR deems necessary for the protection of the public.
In addition to the methodology, the rule must provide criteria for how OIR will determine that it has
received a disproportionate number of claims-handling complaints. OIR must present the proposed
rules to the FSC no later than October 1, 2023.
Insurance Policy/Claims Handling
Background
Florida law prohibits a person from engaging in an unfair or deceptive act or practice involving the
business of insurance. 23 The definition of unfair or deceptive acts or practices includes, in part, the
following unfair claim settlement practices:
• Attempting to settle claims on the basis of a document that was altered without knowledge or
consent of the insured;
• A material misrepresentation made to an insured for the purpose and with the intent of effecting
settlement on less favorable terms than provided under the contract or policy;
• Committing or performing with such frequency as to indicate a general business practice certain
acts, such as failing to adopt and implement standards for the proper investigation of claims;
• Failing to pay undisputed amounts of partial or full benefits owed under first-party property
insurance policies within 90 days after an insurer received notice of a residential property
19 S. 624.3161(6), F.S.
20 Id.
21 Id.
22 See drafting comment.
23 S. 626.9521(1), F.S.
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insurance claim, determines the amounts of partial or full benefits, and agrees to coverage,
unless payment of the undisputed benefits is prevented by “an act of God, prevented by the
impossibility of performance, or due to actions by the insured or claimant that constitute fraud,
lack of cooperation, or intentional misrepresentation regarding the claim for which benefits are
owed.” 24
Citizens Property Insurance Corporation (Citizens) is a state-created, not-for-profit, tax-exempt
governmental entity whose public purpose is to provide property insurance coverage to those unable to
find affordable coverage in the voluntary admitted market. 25 Citizens is not a private insurance
company. 26 It was statutorily created in 2002 when the Florida Legislature combined the state’s two
property insurers of last resort, the Florida Residential Property and Casualty Joint Underwriting
Association (RPCJUA) and the Florida Windstorm Underwriting Association (FWUA). 27 Citizens offers
property insurance through three different accounts: a personal lines account, a commercial lines
account, and a coastal account.
Citizens operates in accordance with the provisions in s. 627.351(6), F.S., and is governed by an nine-
member Board of Governors (Board) that administers its Plan of Operations. The Plan of Operations is
reviewed and approved by the Financial Services Commission. 28 The Governor, President of the
Senate, Speaker of the House of Representatives, and Chief Financial Officer each appoint two
members to the Board. 29 Citizens is subject to regulation by OIR in the same fashion as other insurers.
Under federal law, insurance companies cannot file for bankruptcy. 30 Instead, they are either
rehabilitated or liquidated by their state of domicile. Florida law establishes the system for the treatment
of impaired or insolvent insurers 31 in Florida and sets up guaranty payments where necessary. 32
Florida law provides for guaranty associations to ensure policyholders of insolvent insurers are
protected with respect to insurance premiums paid and settlement of outstanding claims, up to limits
provided by law. 33
A guaranty association is a not-for-profit corporation created by law and directed to protect
policyholders from financial losses and delays in claims payment and settlements due to the insolvency
of an insurer. 34 Insurers are required to participate in the guaranty associations as a condition of
transacting insurance business in Florida. Florida operates four guaranty associations including the
Florida Insurance Guaranty Association (FIGA) 35 and the Florida Workers’ Compensation Insurance
Guaranty Association (FWCIGA). 36
FIGA provides a “mechanism for the payment of covered claims under certain insurance policies to
avoid” delay and financial loss due to the financial insolvency of an insurer. 37 It issues guaranty fund
payments and provides related services for all lines of property and casualty insurance with certain
exceptions. 38 When a Florida property and casualty insurer becomes insolvent, FIGA takes over the
claims of that insurer and pays the claims of its policyholders, ensuring that policyholders are not left
24 S. 626.9541(1)(i), F.S.
25 The term “admitted market” means insurance companies licensed to transact insurance in Florida.
26 S. 627.351(6)(a)1., F.S.
27 S. 2, ch. 2002-240, Laws of Fla.
28 S. 627.351(6)(a)2., F.S.
29 S. 627.351(6)(c)4.a., F.S.
30 11 U.S.C. § 109(b)(2).
31 An “insolvent insurer” means an insurer that was authorized to transact insurance in this state, either at the time the
policy was issued or when the insured event occurred, and against which an order of liquidation with a finding of
insolvency has been entered by a court of competent jurisdiction if such order has become final by the exhaustion of
appellate review. S. 631.904(4), F.S.
32 Ch. 631, F.S.
33 Id.
34 See e.g., ss. 631.51 and 631.902, F.S.
35 Ch. 631, part II, F.S.
36 Ch. 631, part V, F.S.
37 S. 631.51, F.S.
38 S. 631.52, F.S.
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with unpaid claims. FIGA obtains funds to pay the claims of insolvent insurers located in Florida from
the liquidation of the assets of insolvent insurers by the Division of Rehabilitation and Liquidation within
DFS and from the liquidation of assets of insolvent insurers located outside Florida that transact
insurance business in Florida. 39 If an insurer’s assets are insufficient to pay all claims, FIGA can also
issue post-insolvency assessments against property and casualty insurers to obtain funds to pay the
remaining claims. 40
An insurer issuing a personal lines residential property insurance policy may include in such policy a
separate roof deductible that meets all of the following requirements: 41
• Allows property insurers to include in the policy a separate roof deductible of up to two percent
of the Coverage A limit of the policy or 50 percent of the cost to replace the roof. The
policyholder must also be offered the option to decline the roof deductible by signing a form
approved by the OIR. If a roof deductible is added to the policy at renewal, the insurer must
provide a notice of change in policy terms and allow the policyholder to decline the separate
roof deductible.
• Requires that policyholders that select a roof deductible must receive an actuarially sound
premium credit or discount.
• Provides that the roof deductible does not apply to:
o A total loss to the primary structure in accordance with the valued policy law, 42 which is
caused by a covered peril.
o A loss caused by a hurricane.
o A roof loss resulting from a tree fall or other hazard that damages the roof and punctures
the roof deck.
o A roof loss requiring the repair of less than 50 percent of the roof.
• Specifies that when a roof deductible is applied, no other deductibles under the policy may be
applied.
• Specifies that a roof deductible only applies to a claim adjusted on a replacement cost basis.
• Authorizes an insurer to limit the claim payment for a roof to the actual cash value of the loss to
the roof until the insurer receives reasonable proof of payment by the policyholder of the roof
deductible.
• Requires a roof deductible provision to be clear and unambiguous.
• Requires the inclusion of the following disclosures:
o On the page immediately behind the declarations page, notice that a roof deductible may
result in high out-of-pocket expenses to the policyholder.
o On the policy declarations page, prominent display of the actual dollar value of the roof
deductible at issuance and renewal.
• Allows an insurer to limit payment on a roof claim to actual cash value until the policyholder
pays the roof deductible.
Law requires insureds to notify an insurer of a claim or reopened claim, 43 within 1 year after the date of
loss. 44 Notice of a supplemental claim 45 must be given to the insurer within 18 months of the date of
loss or such claim is barred. Insureds are also required to notify an insurer of a claim, supplemental
claim, or reopened sinkhole claim within 2 years after the insured knew or reasonably should have
39 See s. 631.061, F.S. for grounds for liquidation. See s. 631.025, F.S., for an overview of persons subject to
proceedings initiated by the Division.
40 S. 631.57, F.S.
41 S. 672.701(10), F.S.
42 S. 627.702, F.S.
43 S. 627.70132(1)(a), F.S., defines “reopened claim” as a claim that an insurer has previously closed, but that has been
reopened upon an insured’s request for additional costs for loss or damage previously disclosed to the insurer.
44 S. 627.702(3), F.S., provides that the date of loss for claims resulting from specified and other weather-related events,
such as hurricanes and tornadoes, is the date that the hurricane made landfall or the other weather-related event is
verified by the National Oceanic and Atmospheric Administration.
45 S. 627.70132(1)(b), F.S., defines “supplemental claim” as a claim for additional loss or damage from the same peril
which the insured has previously adjusted or for which costs have been incurred while completing repairs or replacement
pursuant to an open claim for which timely notice was previously provided to the insurer.
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known about the loss. 46 The law does not currently contain any tolling of these time limits for military
service members.
Effect of the Bill – Insurance Policy/Claims Handling
The bill adds two new acts that constitute unfair methods of competition or unfair or deceptive acts by
an insurer or agent. They are:
• Altering or amending an insurance adjuster’s report without including:
o A detailed lists of all changes made to the report.
o The identity of the person who ordered each change.
o A detailed explanation of why a change was made if the change reduces an estimate of
a loss.
• Authorizing or permitting an insurer to pay a bonus to an officer or director of an insurer while
the insurer is impaired or insolvent, regardless of whether delinquency proceedings have been,
or will be, initiated.
The bill prohibits Citizens from determining that a property risk is ineligible for coverage solely because
the property risk has unrepaired damage that is the subject of a claim being serviced by the Florida
Insurance Guaranty Association (FIGA). This prohibition applies to a property until the earlier of 36
months from the date FIGA starting servicing the claim or the date that FIGA closes the claim.
The bill clarifies that if a roof deductible is applied to a loss that is the subject of a claim under a
residential property insurance policy, no other deductible may be applied to any other loss to the
property caused by the same covered peril.
The bill provides tolling of the time limitations for providing notice of a property insurance claim to an
insurer during any term of deployment to a combat zone or combat support posting which materially
affects the ability of a servicemember 47 to file a claim.
The bill clarifies that nothing in SB 2A (2022A) shall be construed to impair any right under any
insurance contract in effect on or before that bill became law. 48
Fines Against Insurers, Agencies, and Agents
Background
DFS provides education, information, and assistance to consumers for all products or services
regulated by DFS or FSC. 49 DFS’ duties specifically include:
• Receiving consumer questions and complaints;
• Educating the public about insurance-related topics;
• Providing mediation of consumer and insurance company disputes; and
• Serving as a conduit for referrals for further legal action by DFS. 50
DFS may impose an administrative penalty on a person who holds a license or certificate of authority
from DFS if that person fails to respond to DFS’ request for information within 20 days. 51 A licensed
46 S. 627.706(5), F.S.
47 A servicemember is defined in s. 250.01(19), F.S., as a member of the United States Armed Forces on active duty or
state active duty and all members of the Florida National Guard and United States Reserve Forces.
48 SB 2A was the property insurance bill that was passed during the 2022A Special Session. It became ch. 2022-271,
Laws of Fla. This provision applies to SB 2A from the date it became law. See drafting comments.
49 Florida Department of Financial Services, Department of Financial Services Long Range Program Plan: Fiscal Years
2023-24 through 2027-28, 15 (Oct. 17, 2022), available at
http://floridafiscalportal.state.fl.us/Document.aspx?ID=24407&DocType=PDF (last visited Apr. 2, 2023). See also, Florida
Department of Financial Services, Consumer Guides,
https://www.myfloridacfo.com/Division/Consumers/understandingCoverage/Guides/Default.htm (last visited Apr. 2, 2023).
50 S. 624.307(10)(a), F.S.
51 S. 624.307(10)(b), F.S.
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individual must produce any requested documents not subject to attorney-client or work product
privilege.
OIR, through its ongoing oversight and examination process, determines whether insurance companies
are operating in compliance with the Insurance Code. OIR is authorized to impose administrative fines
in lieu of suspension or revocation if it finds that one or more grounds exist for the discretionary
revocation or suspension of the certificate of authority. 52 OIR may impose an administrative fine as
follows:
• A maximum of $5,000, per non-willful violation, with an aggregate limit of $20,000 for all non-
willful violations arising out of the same action.
• A maximum of $40,000 per violation, with a $200,000 aggregate limit for all willful violations
arising out of the same action.
• If an insurer owes restitution due to a violation, the insurer must provide the restitution and
include 12 percent interest from the date of the violation or the inception of the insured’s policy.
The Insurance Code also authorizes fines for engaging in an unfair or deceptive act or practice
involving the business of insurance. 53 An insurer that commits such violations is subject to a fine of:
• A maximum of $5,000 for each non-willful violation, not to exceed an aggregate amount of
$20,000.
• A maximum of $40,000 for each willful violation arising from the same action, not to exceed an
aggregate amount of $200,000. 54
Effect of the Bill – Fines
Consumer Services – Fines
The bill reduces the time that insurers and agents have to respond to Consumer Services regarding
consumer complaints from 20 days to 14 days, but allows them to respond electronically instead of
solely in writing. It also increases the fines for an insurer’s failure to respond to such complaints from
$2,500 per violation to $5,000 per violation.
OIR – Fines
The bill creates the following fines for violations of the Insurance Code by an insurer related to a
covered loss or claim related to a declared a state of emergency:
• $25,000 per violation, up to an aggregate amount of $100,000 for all nonwillful violations arising
out of the same action.
• $200,000 per violation, up to an aggregate amount of $1,000,000 for all willful violations arising
out of the same action.
The bill increases the current maximum fines for all other violations of the Insurance Code by an
insurer, as follows:
Type of Current Fine Increased Fine Current Fine Increased Fine
Violation Individual Individual Aggregate Aggregate
Violation Violation Violations Violations
Non-willful $5,000 $12,500 $20,000 $50,000
Willful $40,000 $100,000 $200,000 $500,000
Unfair Methods of Competition or Unfair or Deceptive Acts or Practices – Fines
52 S. 624.4211, F.S.
53 S. 626.9521, F.S.
54 S. 626.9521(2), F.S.
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The bill establishes that anyone who engages in an unfair method of competition or unfair or deceptive
act or practice related to a covered loss or claim caused by a declared state of emergency is subject to
the following fines:
• For any person, 55 up to $25,000 for each nonwillful violation and $200,000 for each willful
violation.
• For an insurer, an aggregate maximum of $100,000 for all nonwillful violations and $1,000,000
for all willful violations arising out of the same action.
The maximum fine for engaging in twisting, 56 churning, 57 or willfully submitting fraudulent signatures on
an application or policy-related document are increased from $5,000 to $12,500 for each nonwillful
violation and from $75,000 to $187,500 for each willful violation. The aggregate maximum fines for this
conduct are increased from $50,000 to $125,000 for all nonwillful violations and from $250,000 to
$625,000 for all willful violations arising out of the same actions.
The bill increases the maximum fines for all other instances of unfair methods of competition or unfair
or deceptive acts or practices by a person as follows:
Type of Violation Current Fine Increased Fine Current Fine Increased Fine
Individual Individual Aggregate Aggregate
Violation Violation Violations by an Violations by an
Insurer Insurer
Non-willful $5,000 $12,500 $20,000 $50,000
Willful $40,000 $100,000 $200,000 $500,000
Reporting Requirements
Background
OIR is required to submit an annual report to the Speaker and Minority Leader of the House of
Representatives, the President and Minority Leader of the Senate, the chairs of the legislative
committees with jurisdiction over matters of insurance, and the Governor. 58 The report is to cover the
following information from the preceding calendar year:
• Names of the authorized insurers transacting insurance in this state, with abstracts of their
financial statements including assets, liabilities, and net worth.
• Names of insurers whose business was closed during the year, the cause thereof, and amounts
of assets and liabilities as ascertainable.
• Names of insurers against which delinquency or similar proceedings were instituted and related
information.
• The receipts and estimated expenses of OIR.
• Other pertinent information as OIR deems to be in the public interest.
• A compilation of the laws passed by the Legislature relating to insurance.
• An analysis and summary report of the state of the insurance industry in Florida.
55 Person in connection with unfair methods of competition and unfair or deceptive acts or practices means any individual,
corporation, association, partnership, reciprocal exchange, interinsurer, Lloyds insurer, fraternal benefit society, or
business trust or any entity involved in the business of insurance. S. 626.9511(1), F.S.
56 Twisting is defined as knowingly making any misleading representations or incomplete or fraudulent comparisons or
fraudulent material omissions of or with respect to any insurance policies or insurers for the purpose of inducing, or
tending to induce, any person to lapse, forfeit, surrender, terminate, retain, pledge, assign, borrow on, or convert any
insurance policy or to take out a policy of insurance in another insurer. S. 626.9541(1)(l), F.S.
57 Churning is a practice whereby policy values in an existing life insurance policy or annuity contract, including, but not
limited to, cash, loan values, or dividend values, and in any riders to that policy or contract, are directly or indirectly used
to purchase another insurance policy or annuity contract with that same insurer for the purpose of earning additional
premiums, fees, commissions, or other compensation. S. 626.9541(1)(aa).
58 S. 624.315, F.S. As of the date of this analysis, OIR has not provided its annual report to the Legislature since its 2021
Annual Report, which contained data from calendar year 2020.
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The Division of Investigative and Forensic Services (DIFS) investigates various types of insurance
fraud including Personal Injury Protection fraud, workers' compensation fraud, vehicle fraud, application
fraud, licensee fraud, homeowner's insurance fraud, and healthcare fraud. 59 DIFS is directed by statute
to investigate fraudulent insurance acts, violations of the Unfair Insurance Trade Practices Act, 60 false
and fraudulent insurance claims, 61 and willful violations of the Florida Insurance Code and rules
adopted pursuant to the code. 62 DIFS includes a Bureau of Insurance Fraud (Bureau) and employs
sworn law enforcement officers to investigate insurance fraud.
Effect of the Bill – Reporting
The bill requires OIR to provide an annual report by February 15 each year to the Governor, President
of the Senate, and Speaker of the House on its actions to enforce insurer compliance with the
Insurance Code during the previous year (annual compliance report). OIR must also publish the
annual compliance report on its website. The annual compliance report must contain information
regarding:
• Revocation, denial, or suspension of any license or registration issued by OIR.
• Fines imposed by OIR for violations of the Insurance Code.
• Consent orders entered into by OIR.
• Examinations and investigations conducted and completed for which OIR found violations of law
or rule, but did not take enforcement action.
OIR must also create quarterly reports detailing all actions to enforce insurer compliance with the
Insurance Code during the previous quarter. The quarterly reports must be submitted to the FSC,
President of the Senate, Speaker of the House, and legislative committees with jurisdiction over
insurance matters. They must contain the same information as the annual compliance report.
The bill requires that the Bureau submit a performance report to the President of the Senate and
Speaker of the House by January 1 each year, which includes at least the following information:
• Total number of initial referrals received, cases opened, cases presented for prosecution, cases
closed, and convictions resulting from cases presented for prosecution by the Bureau.
• Number of referrals received from insurers, OIR, and Consumer Services, and the outcome of
those referrals.
• Number of investigations undertaken by the Bureau which were not the result of a referral from
an insurer and the outcome of those investigations.
• Number of investigations that resulted in a referral to a regulatory agency and the disposition of
those referrals.
• Number of cases presented by the Bureau which local or statewide prosecutors declined to
prosecute with the reasons why they declined.
• A summary of the annual report containing the data collected from fraud prosecutors. 63
• The total number of employees assigned to the Bureau, broken down by location.
• Average caseload and turnaround time for each investigator.
The bill clarifies that, in addition to reporting to other agencies, DIFS may report alleged insurance-
related crimes that impact two or more Florida judicial circuits to the statewide prosecutor.
Rates/Premiums
Background
59 See https://myfloridacfo.com/Division/DIFS/ (last visited Apr. 2, 2023).
60 S. 626.9541, F.S.
61 S. 817.234, F.S.
62 S. 624.15, F.S.
63 S. 626.9896, F.S. requires such a report be prepared annually by the Bureau and presented to the Governor, President
of the Senate, and Speaker of the House of Representatives.
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Residential property insurance rate filings must account for mitigation measures undertaken by
policyholders to reduce hurricane losses. 64 Specifically, the rate filings must include actuarially
reasonable discounts, credits, or other rate differentials or appropriate reductions in deductibles to
consumers who implement windstorm damage mitigation techniques to their properties. 65 Upon their
filing by an insurer or rating organization, OIR determines the discounts, credits, other rate differentials
and appropriate reductions in deductibles that reflect the full actuarial value of such revaluation, 66 which
in turn may be used in rate filings under the rating law. Windstorm mitigation measures that must be
evaluated for purposes of mitigation discounts include fixtures or construction techniques that enhance
roof strength, roof covering performance, roof-to-wall strength, wall-to-floor-to-foundation strength,
opening protection, and window, door, and skylight strength. 67
Effect of the Bill – Rates/Premiums
The bill requires all residential property insurers to provide information on their websites describing
hurricane mitigation premium discounts available to policyholders. Additionally, beginning on January 1,
2025, and every five years thereafter, OIR must reevaluate the fixtures or construction techniques
demonstrated to reduce windstorm losses, and the discounts, credits, other rate differentials, and
reductions in deductibles that correspond to these fixtures and techniques.
Agency Staffing
Background
DFS and OIR have both expressed to the Legislature that they have difficulty recruiting and retaining
qualified staff due to their inability to compete with the salaries paid by the private sector for similar
work. During a presentation to the Senate Banking and Insurance Committee on March 29, 2023, the
Director of DFS Consumer Services explained that there is currently a 55 percent vacancy rate in the
positions for the telephone helpline. 68
Effect of the Bill – Agency Staffing
The bill appropriates recurring and nonrecurring funds from the Insurance Regulatory Trust Fund to
create the following full-time positions to implement this bill:
• Five positions within DFS.
• Fourteen positions within OIR.
B. SECTION DIRECTORY:
Section 1. Amends s. 624.307, F.S., relating to general powers; duties.
Section 2. Amends s. 624.3152, F.S., relating to annual report.
Section 3. Creates s. 624.3152, F.S., relating to quarterly report of enforcement activity.
Section 4. Amends s. 624.316, F.S., relating to examination of insurers.
Section 5. Amends s. 624.3161, F.S., relating to market conduct examinations.
Section 6. Amends s. 624.4211, F.S., relating to administrative fine in lieu of suspension or revocation.
64 S. 627.062(2)(j), F.S.
65 S. 627.0629(1), F.S.
66 Id.
67 Id.
68 Senate Committee on Banking and Insurance, Presentation by Greg Thomas from DFS,
https://www.flsenate.gov/media/videoplayer?EventID=1_nty0d3lq-202303290830&Redirect=true (last visited Apr. 8,
2023).
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Section 7. Amends s. 626.207, F.S., relating to disqualification of applicants and licensees; penalties
against licensees; rulemaking authority.
Section 8. Amends s. 626.9521, F.S., relating to unfair methods of competition and unfair or deceptive
acts or practices prohibited; penalties.
Section 9. Amends s. 626.9541, F.S., relating to unfair methods of competition and unfair or deceptive
acts or practices defined.
Section 10. Amends s. 626.989, F.S., relating to investigation by department of Division of
Investigative and Forensic Services; compliance; immunity; confidential information;
reports to division; division investigator’s power of arrest.
Section 11. Amends s. 627.0629, F.S., relating to residential property insurance; rate filings.
Section 12. Amends s. 627.31, F.S., relating to insurance risk apportionment plans.
Section 13. Amends s. 627.701, F.S., relating to liability of insureds; coinsurance; deductibles.
Section 14. Amends s. 627.70132, F.S., relating to notice of property insurance claim.
Section 15. Provides uncoded directory language.
Section 16. Provides an appropriation of funds for DFS.
Section 17. Provides an appropriation of funds for OIR.
Section 18. Provides an effective date of July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
If the bill results in DFS and OIR assessing newly created or increased fine amounts against
insurers, insurance agents and agencies, or others, it may result in additional revenues for the
state.
2. Expenditures:
The bill provides for appropriation of funds from the Insurance Regulatory Trust Fund for:
• $494,774 in recurring funds and $23,410 in nonrecurring funds for five additional full-time
positions within DFS.
• $1,301,672 in recurring funds and $65,548 in nonrecurring funds for fourteen additional full-
time positions within OIR.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
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DATE: 4/8/2023
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may result in a negative economic impact on insurers if they are assessed new or increased
fine amounts and if they have to expend additional funds to pay for more frequent examinations by
OIR. 69
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill provides OIR and the FSC with the authority necessary to implement rules and forms to
administer the portions of the bill where rulemaking and form creation are required, including risk-based
selection methods for financial and market conduct examinations of insurers and mitigation discounts
for residential property insurance policies.
C. DRAFTING ISSUES OR OTHER COMMENTS:
Lines 148-271: These lines contain errors in coding. Certain lines of new statutory language lack
underlining and should be amended to correct the coding.
Lines 256-258: These lines require consideration of particular metrics from a NAIC Market Conduct
Annual Statement in determining whether a market conduct examination is necessary, but the metrics
are not defined. The bill should be amended to provide the metrics that must be considered.
Lines 684-691: Chapter 2022-271, Laws of Fla., (SB 2A (2022A)) contains multiple effective dates, so
the language in this section of the bill may cause confusion about what date applies in the event of a
dispute under an insurance contract that went into effect after the bill was approved by the Governor,
but before the applicable effective date specified within the bill.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
69 Insurers are responsible for paying OIR for the cost of their examinations. S. 624.320, F.S.
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1 A bill to be entitled
2 An act relating to insurer accountability; amending s.
3 624.307, F.S.; authorizing electronic responses to
4 certain requests from the Division of Consumer
5 Services of the Department of Financial Services
6 concerning consumer complaints; revising the timeframe
7 in which responses must be made; revising
8 administrative penalties; amending s. 624.315, F.S.;
9 specifying reporting requirements for the Office of
10 Insurance Regulation's internal auditor in the
11 office's annual report relating to the enforcement of
12 insurer compliance; creating s. 624.3152, F.S.;
13 specifying requirements for the office to report
14 quarterly to the Legislature relating to the
15 enforcement of insurer compliance; amending s.
16 624.316, F.S.; requiring the office to create a
17 specified methodology for scheduling examinations of
18 insurers; specifying requirements for such
19 methodology; providing construction; amending s.
20 624.3161, F.S.; providing that authorized property
21 insurers must, rather than may, be subject to an
22 additional market conduct examination after a
23 hurricane if specified conditions are met; revising
24 the applicability of such conditions; requiring the
25 office to create, and the Financial Services
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26 Commission to adopt by rule, a specified methodology
27 for scheduling examinations of insurers; specifying
28 requirements for such methodology; providing
29 construction; amending s. 624.4211, F.S.; revising
30 administrative fines the office may impose in lieu of
31 revocation or suspension; amending s. 626.207, F.S.;
32 revising a condition for disqualification of an
33 insurance representative applicant or licensee;
34 amending s. 626.9521, F.S.; revising and specifying
35 applicable fines for unfair methods of competition and
36 unfair or deceptive acts or practices; amending s.
37 626.9541, F.S.; adding an unfair claim settlement
38 practice by an insurer; prohibiting an officer or a
39 director of an impaired insurer to authorize or permit
40 the insurer to pay a bonus to any officer or director
41 of the insurer; defining the term "bonus"; providing a
42 criminal penalty; amending s. 626.989, F.S.; revising
43 a reporting requirement for the department's Division
44 of Investigative and Forensic Services; requiring the
45 division to submit an annual performance report to the
46 Legislature; specifying requirements for the report;
47 amending s. 627.0629, F.S.; specifying requirements
48 for residential property insurers in providing certain
49 hurricane mitigation discount information to
50 policyholders in a specified manner; specifying
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51 requirements for the office in reevaluating and
52 updating certain fixtures and construction techniques;
53 deleting obsolete dates; amending s. 627.351, F.S.;
54 prohibiting Citizens Property Insurance Corporation
55 from determining that a risk is ineligible for
56 coverage solely on a specified basis; amending s.
57 627.701, F.S.; providing that if a roof deductible is
58 applied under a personal lines residential property
59 insurance policy, no other deductible under the policy
60 may be applied to any other loss to the property
61 caused by the same covered peril; amending s.
62 627.70132, F.S.; providing for the tolling of certain
63 timeframes for filing notices of property insurance
64 claims for servicemembers; providing appropriations;
65 providing an effective date.
66
67 Be It Enacted by the Legislature of the State of Florida:
68
69 Section 1. Paragraph (b) of subsection (10) of
70 section 624.307, Florida Statutes, is amended to read:
71 624.307 General powers; duties.—
72 (10)
73 (b) Any person licensed or issued a certificate of
74 authority by the department or the office shall respond, in
75 writing or electronically, to the division within 14 20 days
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76 after receipt of a written request for documents and information
77 from the division concerning a consumer complaint. The response
78 must address the issues and allegations raised in the complaint
79 and include any requested documents concerning the consumer
80 complaint not subject to attorney-client or work-product
81 privilege. The division may impose an administrative penalty for
82 failure to comply with this paragraph of up to $5,000 $2,500 per
83 violation upon any entity licensed by the department or the
84 office and $250 for the first violation, $500 for the second
85 violation, and up to $1,000 per for the third or subsequent
86 violation by upon any individual licensed by the department or
87 the office.
88 Section 2. Present subsection (4) of section 624.315,
89 Florida Statutes, is redesignated as subsection (5), and a new
90 subsection (4) is added to that section, to read:
91 624.315 Annual report.—
92 (4) The office shall detail all actions to enforce insurer
93 compliance during the previous year. For each of the following,
94 the report must detail the insurer or other licensee or
95 registrant against whom such action was taken; whether the
96 office found any violation of law or rule by such party, and, if
97 so, detail such violation; and the resolution of such action,
98 including any penalties imposed by the office. The report must
99 be published on the website of the office and submitted to the
100 Governor, the President of the Senate, and the Speaker of the
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101 House of Representatives on or before February 15 of each year.
102 The report must include, but need not be limited to:
103 (a) The revocation, denial, or suspension of any license
104 or registration issued by the office.
105 (b) All actions taken pursuant to s. 624.310.
106 (c) Fines imposed by the office for violations of this
107 code.
108 (d) Consent orders entered into by the office.
109 (e) Examinations and investigations conducted and
110 completed by the office pursuant to ss. 624.316 and 624.3161.
111 (f) Investigations conducted and completed, by line of
112 insurance, for which the office found violations of law or rule
113 but did not take enforcement action.
114 Section 3. Section 624.3152, Florida Statutes, is created
115 to read:
116 624.3152 Quarterly report of enforcement activity.—Each
117 quarter, the office shall create a report detailing all actions
118 of the office to enforce insurer compliance. The report must be
119 submitted to the commission, the President of the Senate, the
120 Speaker of the House of Representatives, and the legislative
121 committees with jurisdiction over matters of insurance. For each
122 of the following, the report must detail the insurer or other
123 licensee or registrant against whom such action was taken;
124 whether the office found any violation of law or rule by such
125 party, and, if so, detail such violation; and the resolution of
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126 such action, including any penalties imposed by the office. The
127 report is due on or before April 30, July 31, October 31, and
128 January 31, respectively, for the immediately preceding quarter.
129 The report must include, but need not be limited to:
130 (1) The revocation, denial, or suspension of any license
131 or registration issued by the office.
132 (2) All actions taken pursuant to s. 624.310.
133 (3) Fines imposed by the office for violations of this
134 code.
135 (4) Consent orders entered into by the office.
136 (5) Examinations and investigations conducted and
137 completed by the office pursuant to ss. 624.316 and 624.3161.
138 (6) Investigations conducted and completed, by line of
139 insurance, for which the office found violations of law or rule
140 but did not take enforcement action.
141 Section 4. Subsection (2) is amended and subsection (3) is
142 added to section 624.316, Florida Statutes, to read:
143 624.316 Examination of insurers.—
144 (2)(a) Except as provided in paragraph (f), the office may
145 examine each insurer as often as may be warranted for the
146 protection of the policyholders and in the public interest, but
147 must, at a minimum, examine insurers as follows:
148 1. High-risk insurers not less frequently than once every
149 3 years.
150 2. Average-risk insurers not less frequently than once
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151 every 5 years.
152 3. Low-risk insurers not less frequently than once every 7
153 years and shall examine each domestic insurer not less
154 frequently than once every 5 years.
155
156 The examination shall cover the preceding 5 fiscal years since
157 the last examination of the insurer, except for low-risk
158 insurers, in which case the examination shall cover the
159 preceding 5 fiscal years, and shall be commenced within 12
160 months after the end of the most recent fiscal year being
161 covered by the examination. The examination may cover any period
162 of the insurer’s operations since the last previous examination.
163 The examination may include examination of events subsequent to
164 the end of the most recent fiscal year and the events of any
165 prior period that affect the present financial condition of the
166 insurer.
167 (3) The office shall create, and the commission shall
168 adopt by rule, a risk-based selection methodology for scheduling
169 and conducting examinations of insurers and other entities
170 subject to this section. This requirement does not restrict the
171 authority of the office to conduct market conduct examinations
172 as often as it deems advisable. Such methodology must include:
173 (a) Use of currently required risk-based capital reports
174 to prioritize financial examinations of insurers when such
175 reporting indicates a decline in the insurer's financial
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176 condition.
177 (b) Consideration of any downgrade or threatened downgrade
178 in the insurer's financial strength rating.
179 (c) Prioritization of property insurers for which the
180 office identifies significant concerns about an insurer's
181 solvency pursuant to s. 627.7154.
182 (d) Any other conditions the office deems necessary for
183 the protection of the public.
184
185 The office shall present the proposed rule required by this
186 subsection to the commission no later than October 1, 2023. In
187 addition to the methodology required by this subsection, the
188 rule must include a plan to implement the examination schedule
189 in subsection (2).
190 Section 5. Subsection (7) of section 624.3161, Florida
191 Statutes, is amended, and subsection (8) is added to that
192 section, to read:
193 624.3161 Market conduct examinations.—
194 (7) Notwithstanding subsection (1), any authorized insurer
195 transacting property insurance business in this state must may
196 be subject to an additional market conduct examination after a
197 hurricane if, at any time more than 90 days after the end of the
198 hurricane, the insurer:
199 (a) Is among the top 20 percent of insurers based upon a
200 calculation of the ratio of hurricane-related property insurance
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201 claims filed to the number of property insurance policies in
202 force;
203 (b) Is among the top 20 percent of insurers based upon a
204 calculation of the ratio of consumer complaints made to the
205 department to hurricane-related claims;
206 (c) Has made significant payments to its managing general
207 agent since the hurricane; or
208 (d) Is identified by the office as necessitating a market
209 conduct exam for any other reason.
210
211 All relevant criteria under this section and s. 624.316 shall be
212 applied to the market conduct examination under this subsection.
213 Such an examination must be initiated within 18 months after the
214 landfall of a hurricane that results in an executive order or a
215 state of emergency issued by the Governor. This requirement does
216 not limit in any way the authority of the office to conduct at
217 any time a market conduct examination of a property insurer in
218 the aftermath of a hurricane. An examination of an insurer under
219 this subsection must also include an examination of its managing
220 general agent as if it were the insurer.
221 (8) The office shall create, and the commission shall
222 adopt by rule, a risk-based selection methodology for scheduling
223 and conducting market conduct examinations of insurers and other
224 entities regulated by the office. This requirement does not
225 restrict the authority of the office to conduct market conduct
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226 examinations as often as it deems necessary. Under such
227 selection methodology, the office must initiate a market conduct
228 examination if any of the following conditions exist relating to
229 an insurer or other entity regulated by the office:
230 (a) An insurance regulator in another state has initiated
231 or taken regulatory action against the insurer or entity,
232 including, but not limited to:
233 1. A licensure denial, suspension, or revocation;
234 2. Imposition of administrative fines; or
235 3. Issuance of a cease and desist order, consent order, or
236 other order regarding actions or omissions of the insurer or
237 entity.
238 (b) Given the insurer's market share in this state, the
239 department or the office has received a disproportionate number
240 of the following types of claims-handling complaints against the
241 insurer:
242 1. Failure to timely communicate with respect to claims;
243 2. Failure to timely pay claims;
244 3. Untimely payments giving rise to the payment of
245 statutory interest;
246 4. Failure to adjust and pay claims in accordance with the
247 terms and conditions of the policy or contract and in compliance
248 with state law;
249 5. Violations of the Unfair Insurance Trade Practices Act
250 in part IX of chapter 626;
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251 6. Failure to use licensed and duly appointed claims
252 adjusters;
253 7. Failure to maintain reasonable claims records; or
254 8. Failure to adhere to the company's claims-handling
255 manual.
256 (c) The results of a National Association of Insurance
257 Commissioners Market Conduct Annual Statement indicate the
258 insurer is a negative outlier with regard to particular metrics.
259 (d) There is evidence the insurer is engaged in a pattern
260 or practice of violations of the Unfair Insurance Trade
261 Practices Act.
262
263 (f) Any other conditions the office deems necessary for
264 the protection of the public.
265
266 The office shall present the proposed rule required by this
267 subsection to the commission no later than October 1, 2023. In
268 addition to the methodology required by this subsection, the
269 rule must provide criteria for how the office will determine
270 that it has received a disproportionate of the claims-handling
271 complaints described in paragraph (b).
272 Section 6. Section 624.4211, Florida Statutes, is amended
273 to read:
274 624.4211 Administrative fine in lieu of suspension or
275 revocation.—
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276 (1) If the office finds that one or more grounds exist for
277 the discretionary revocation or suspension of a certificate of
278 authority issued under this chapter, the office may, in lieu of
279 such revocation or suspension, impose a fine upon the insurer.
280 (2)(a) With respect to a any nonwillful violation, such
281 fine may not exceed:
282 1. Twenty-five thousand dollars per violation, up to an
283 aggregate amount of $100,000 for all nonwillful violations
284 arising out of the same action, related to a covered loss or
285 claim caused by an emergency for which the Governor declared a
286 state of emergency pursuant to s. 252.36.
287 2. Twelve thousand five hundred dollars $5,000 per
288 violation, up to. In no event shall such fine exceed an
289 aggregate amount of $50,000 $20,000 for all other nonwillful
290 violations arising out of the same action.
291 (b) If an insurer discovers a nonwillful violation, the
292 insurer shall correct the violation and, if restitution is due,
293 make restitution to all affected persons. Such restitution shall
294 include interest at 12 percent per year from either the date of
295 the violation or the date of inception of the affected person's
296 policy, at the insurer's option. The restitution may be a credit
297 against future premiums due provided that interest accumulates
298 until the premiums are due. If the amount of restitution due to
299 any person is $50 or more and the insurer wishes to credit it
300 against future premiums, it shall notify such person that she or
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301 he may receive a check instead of a credit. If the credit is on
302 a policy that is not renewed, the insurer shall pay the
303 restitution to the person to whom it is due.
304 (3)(a) With respect to a any knowing and willful violation
305 of a lawful order or rule of the office or commission or a
306 provision of this code, the office may impose a fine upon the
307 insurer in an amount not to exceed:
308 1. Two hundred thousand dollars for each such violation,
309 up to an aggregate amount of $1 million for all knowing and
310 willful violations arising out of the same action, related to a
311 covered loss or claim caused by an emergency for which the
312 Governor declared a state of emergency pursuant to s. 252.36.
313 2. One hundred thousand dollars $40,000 for each such
314 violation, up to. In no event shall such fine exceed an
315 aggregate amount of $500,000 $200,000 for all other knowing and
316 willful violations arising out of the same action.
317 (b) In addition to such fines, the insurer shall make
318 restitution when due in accordance with subsection (2).
319 (4) The failure of an insurer to make restitution when due
320 as required under this section constitutes a willful violation
321 of this code. However, if an insurer in good faith is uncertain
322 as to whether any restitution is due or as to the amount of such
323 restitution, it shall promptly notify the office of the
324 circumstances; and the failure to make restitution pending a
325 determination thereof shall not constitute a violation of this
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326 code.
327 Section 7. Paragraph (c) of subsection (3) of section
328 626.207, Florida Statutes, is amended to read:
329 626.207 Disqualification of applicants and licensees;
330 penalties against licensees; rulemaking authority.—
331 (3) An applicant who has been found guilty of or has
332 pleaded guilty or nolo contendere to a crime not included in
333 subsection (2), regardless of adjudication, is subject to:
334 (c) A 7-year disqualifying period for all misdemeanors
335 directly related to the financial services business or any
336 violation of the Florida Insurance Code.
337 Section 8. Subsections (2) and (3) of section 626.9521,
338 Florida Statutes, are amended to read:
339 626.9521 Unfair methods of competition and unfair or
340 deceptive acts or practices prohibited; penalties.—
341 (2) Except as provided in subsection (3), any person who
342 violates any provision of this part is subject to a fine in an
343 amount not greater than $12,500 $5,000 for each nonwillful
344 violation and not greater than $100,000 $40,000 for each willful
345 violation. Fines under this subsection imposed against an
346 insurer may not exceed an aggregate amount of $50,000 $20,000
347 for all nonwillful violations arising out of the same action or
348 an aggregate amount of $500,000 $200,000 for all willful
349 violations arising out of the same action. The fines may be
350 imposed in addition to any other applicable penalty.
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351 (3)(a) If a person violates s. 626.9541(1)(l), the offense
352 known as "twisting," or violates s. 626.9541(1)(aa), the offense
353 known as "churning," the person commits a misdemeanor of the
354 first degree, punishable as provided in s. 775.082, and an
355 administrative fine not greater than $12,500 $5,000 shall be
356 imposed for each nonwillful violation or an administrative fine
357 not greater than $187,500 $75,000 shall be imposed for each
358 willful violation. To impose an administrative fine for a
359 willful violation under this paragraph, the practice of
360 "churning" or "twisting" must involve fraudulent conduct.
361 (b) If a person violates s. 626.9541(1)(ee) by willfully
362 submitting fraudulent signatures on an application or policy-
363 related document, the person commits a felony of the third
364 degree, punishable as provided in s. 775.082, and an
365 administrative fine not greater than $12,500 $5,000 shall be
366 imposed for each nonwillful violation or an administrative fine
367 not greater than $187,500 $75,000 shall be imposed for each
368 willful violation.
369 (c) If a person violates any provision of this part and
370 such violation is related to a covered loss or covered claim
371 caused by an emergency for which the Governor declared a state
372 of emergency pursuant to s. 252.36, such person is subject to a
373 fine in an amount not greater than $25,000 for each nonwillful
374 violation and not greater than $200,000 for each willful
375 violation. Fines under this paragraph imposed against an insurer
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376 may not exceed an aggregate amount of $100,000 for all
377 nonwillful violations arising out of the same action or an
378 aggregate amount of $1 million for all willful violations
379 arising out of the same action.
380 (d) Administrative fines under paragraphs (a) and (b) this
381 subsection may not exceed an aggregate amount of $125,000
382 $50,000 for all nonwillful violations arising out of the same
383 action or an aggregate amount of $625,000 $250,000 for all
384 willful violations arising out of the same action.
385 Section 9. Paragraphs (i) and (w) of subsection (1) of
386 section 626.9541, Florida Statutes, are amended to read:
387 626.9541 Unfair methods of competition and unfair or
388 deceptive acts or practices defined.—
389 (1) UNFAIR METHODS OF COMPETITION AND UNFAIR OR DECEPTIVE
390 ACTS.—The following are defined as unfair methods of competition
391 and unfair or deceptive acts or practices:
392 (i) Unfair claim settlement practices.—
393 1. Attempting to settle claims on the basis of an
394 application, when serving as a binder or intended to become a
395 part of the policy, or any other material document which was
396 altered without notice to, or knowledge or consent of, the
397 insured;
398 2. A material misrepresentation made to an insured or any
399 other person having an interest in the proceeds payable under
400 such contract or policy, for the purpose and with the intent of
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401 effecting settlement of such claims, loss, or damage under such
402 contract or policy on less favorable terms than those provided
403 in, and contemplated by, such contract or policy;
404 3. Committing or performing with such frequency as to
405 indicate a general business practice any of the following:
406 a. Failing to adopt and implement standards for the proper
407 investigation of claims;
408 b. Misrepresenting pertinent facts or insurance policy
409 provisions relating to coverages at issue;
410 c. Failing to acknowledge and act promptly upon
411 communications with respect to claims;
412 d. Denying claims without conducting reasonable
413 investigations based upon available information;
414 e. Failing to affirm or deny full or partial coverage of
415 claims, and, as to partial coverage, the dollar amount or extent
416 of coverage, or failing to provide a written statement that the
417 claim is being investigated, upon the written request of the
418 insured within 30 days after proof-of-loss statements have been
419 completed;
420 f. Failing to promptly provide a reasonable explanation in
421 writing to the insured of the basis in the insurance policy, in
422 relation to the facts or applicable law, for denial of a claim
423 or for the offer of a compromise settlement;
424 g. Failing to promptly notify the insured of any
425 additional information necessary for the processing of a claim;
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426 h. Failing to clearly explain the nature of the requested
427 information and the reasons why such information is necessary;
428 or
429 i. Failing to pay personal injury protection insurance
430 claims within the time periods required by s. 627.736(4)(b). The
431 office may order the insurer to pay restitution to a
432 policyholder, medical provider, or other claimant, including
433 interest at a rate consistent with the amount set forth in s.
434 55.03(1), for the time period within which an insurer fails to
435 pay claims as required by law. Restitution is in addition to any
436 other penalties allowed by law, including, but not limited to,
437 the suspension of the insurer's certificate of authority; or
438 j. Altering or amending an insurance adjuster's report
439 without including on the report or as an addendum to the report
440 a detailed list of all changes made to the report and the
441 identity of the person who ordered each change. Any change that
442 has the effect of reducing the estimate of the loss must include
443 a detailed explanation why such change was made; or
444 4. Failing to pay undisputed amounts of partial or full
445 benefits owed under first-party property insurance policies
446 within 60 days after an insurer receives notice of a residential
447 property insurance claim, determines the amounts of partial or
448 full benefits, and agrees to coverage, unless payment of the
449 undisputed benefits is prevented by factors beyond the control
450 of the insurer as defined in s. 627.70131(5).
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451 (w) Soliciting or accepting new or renewal insurance risks
452 or payment of certain bonuses by insolvent or impaired insurer
453 prohibited; penalty.—
454 1. Whether or not delinquency proceedings as to the
455 insurer have been or are to be initiated, but while such
456 insolvency or impairment exists, no director or officer of an
457 insurer, except with the written permission of the office, shall
458 authorize or permit the insurer to solicit or accept new or
459 renewal insurance risks in this state after such director or
460 officer knew, or reasonably should have known, that the insurer
461 was insolvent or impaired.
462 2. Regardless of whether delinquency proceedings as to the
463 insurer have been or are to be initiated, but while such
464 insolvency or impairment exists, a director or an officer of an
465 impaired insurer may not authorize or permit the insurer to pay
466 a bonus to any officer or director of the insurer.
467 3. As used in this paragraph, the term:
468 a. "Bonus" means a payment, in addition to an officer's or
469 a director's usual compensation, that is in addition to any
470 amounts contracted for or otherwise legally due.
471 b. "Impaired" includes impairment of capital or surplus,
472 as defined in s. 631.011(12) and (13).
473 4.2. Any such director or officer, upon conviction of a
474 violation of this paragraph, commits is guilty of a felony of
475 the third degree, punishable as provided in s. 775.082, s.
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476 775.083, or s. 775.084.
477 Section 10. Subsection (6) of section 626.989, Florida
478 Statutes, is amended, and subsection (10) is added to that
479 section, to read:
480 626.989 Investigation by department or Division of
481 Investigative and Forensic Services; compliance; immunity;
482 confidential information; reports to division; division
483 investigator's power of arrest.—
484 (6)(a) Any person, other than an insurer, agent, or other
485 person licensed under the code, or an employee thereof, having
486 knowledge or who believes that a fraudulent insurance act or any
487 other act or practice which, upon conviction, constitutes a
488 felony or a misdemeanor under the code, or under s. 817.234, is
489 being or has been committed may send to the Division of
490 Investigative and Forensic Services a report or information
491 pertinent to such knowledge or belief and such additional
492 information relative thereto as the department may request. Any
493 professional practitioner licensed or regulated by the
494 Department of Business and Professional Regulation, except as
495 otherwise provided by law, any medical review committee as
496 defined in s. 766.101, any private medical review committee, and
497 any insurer, agent, or other person licensed under the code, or
498 an employee thereof, having knowledge or who believes that a
499 fraudulent insurance act or any other act or practice which,
500 upon conviction, constitutes a felony or a misdemeanor under the
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501 code, or under s. 817.234, is being or has been committed shall
502 send to the Division of Investigative and Forensic Services a
503 report or information pertinent to such knowledge or belief and
504 such additional information relative thereto as the department
505 may require.
506 (b) The Division of Investigative and Forensic Services
507 shall review such information or reports and select such
508 information or reports as, in its judgment, may require further
509 investigation. It shall then cause an independent examination of
510 the facts surrounding such information or report to be made to
511 determine the extent, if any, to which a fraudulent insurance
512 act or any other act or practice which, upon conviction,
513 constitutes a felony or a misdemeanor under the code, or under
514 s. 817.234, is being committed.
515 (c) The Division of Investigative and Forensic Services
516 shall report any alleged violations of law which its
517 investigations disclose to the appropriate licensing agency and
518 state attorney or other prosecuting agency having jurisdiction,
519 including, but not limited to, the statewide prosecutor for
520 crimes that impact two or more judicial circuits in this state,
521 with respect to any such violation, as provided in s. 624.310.
522 If prosecution by the state attorney or other prosecuting agency
523 having jurisdiction with respect to such violation is not begun
524 within 60 days of the division's report, the state attorney or
525 other prosecuting agency having jurisdiction with respect to
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526 such violation shall inform the division of the reasons for the
527 lack of prosecution.
528 (10) The Division of Investigative and Forensic Services
529 Bureau of Insurance Fraud shall prepare and submit a performance
530 report to the President of the Senate and the Speaker of the
531 House of Representatives by January 1 of each year. The annual
532 report must include, but need not be limited to:
533 (a) The total number of initial referrals received, cases
534 opened, cases presented for prosecution, cases closed, and
535 convictions resulting from cases presented for prosecution by
536 the Bureau of Insurance Fraud, by type of insurance fraud and
537 circuit.
538 (b) The number of referrals received from insurers, the
539 office, and the Division of Consumer Services of the department,
540 and the outcome of those referrals.
541 (c) The number of investigations undertaken by the Bureau
542 of Insurance Fraud which were not the result of a referral from
543 an insurer and the outcome of those referrals.
544 (d) The number of investigations that resulted in a
545 referral to a regulatory agency and the disposition of those
546 referrals.
547 (e) The number of cases presented by the Bureau of
548 Insurance Fraud which local prosecutors or the statewide
549 prosecutor declined to prosecute and the reasons provided for
550 declining prosecution.
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551 (f) A summary of the annual report required under s.
552 626.9896.
553 (g) The total number of employees assigned to the Bureau
554 of Insurance Fraud, delineated by location of staff assigned;
555 and the number and location of employees assigned to the Bureau
556 of Insurance Fraud who were assigned to work other types of
557 fraud cases.
558 (h) The average caseload and turnaround time by type of
559 case for each investigator.
560 (i) The training provided during the year to insurance
561 fraud investigators.
562 Section 11. Subsections (1), (3), and (4) of section
563 627.0629, Florida Statutes, are amended to read:
564 627.0629 Residential property insurance; rate filings.—
565 (1) It is the intent of the Legislature that insurers
566 provide savings to consumers who install or implement windstorm
567 damage mitigation techniques, alterations, or solutions to their
568 properties to prevent windstorm losses. A rate filing for
569 residential property insurance must include actuarially
570 reasonable discounts, credits, or other rate differentials, or
571 appropriate reductions in deductibles, for properties on which
572 fixtures or construction techniques demonstrated to reduce the
573 amount of loss in a windstorm have been installed or
574 implemented. The fixtures or construction techniques must
575 include, but are not limited to, fixtures or construction
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576 techniques that enhance roof strength, roof covering
577 performance, roof-to-wall strength, wall-to-floor-to-foundation
578 strength, opening protection, and window, door, and skylight
579 strength. Credits, discounts, or other rate differentials, or
580 appropriate reductions in deductibles, for fixtures and
581 construction techniques that meet the minimum requirements of
582 the Florida Building Code must be included in the rate filing.
583 The office shall determine the discounts, credits, other rate
584 differentials, and appropriate reductions in deductibles that
585 reflect the full actuarial value of such revaluation, which may
586 be used by insurers in rate filings. Effective July 1, 2023,
587 each insurer subject to the requirements of this section must
588 provide information on the insurer's website describing the
589 hurricane mitigation discounts available to policyholders. Such
590 information must be accessible on, or through a hyperlink
591 located on, the home page of the insurer's website or the
592 primary page of the insurer's website for property insurance
593 policyholders or applicants for such coverage in this state. On
594 or before January 1, 2025, and every 5 years thereafter, the
595 office shall reevaluate and update the fixtures or construction
596 techniques demonstrated to reduce the amount of loss in a
597 windstorm and the discounts, credits, other rate differentials,
598 and appropriate reductions in deductibles that reflect the full
599 actuarial value of such fixtures or construction techniques. The
600 office shall adopt rules and forms necessitated by such
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601 reevaluation.
602 (3) A rate filing made on or after July 1, 1995, for
603 mobile home owner insurance must include appropriate discounts,
604 credits, or other rate differentials for mobile homes
605 constructed to comply with American Society of Civil Engineers
606 Standard ANSI/ASCE 7-88, adopted by the United States Department
607 of Housing and Urban Development on July 13, 1994, and that also
608 comply with all applicable tie-down requirements provided by
609 state law.
610 (4) The Legislature finds that separate consideration and
611 notice of hurricane insurance premiums will assist consumers by
612 providing greater assurance that hurricane premiums are lawful
613 and by providing more complete information regarding the
614 components of property insurance premiums. Effective January 1,
615 1997, A rate filing for residential property insurance shall be
616 separated into two components, rates for hurricane coverage and
617 rates for all other coverages. A premium notice reflecting a
618 rate implemented on the basis of such a filing shall separately
619 indicate the premium for hurricane coverage and the premium for
620 all other coverages.
621 Section 12. Paragraph (ll) is added to subsection (6) of
622 section 627.351, Florida Statutes, to read:
623 627.351 Insurance risk apportionment plans.—
624 (6) CITIZENS PROPERTY INSURANCE CORPORATION.—
625 (ll) The corporation may not determine that a risk is
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626 ineligible for coverage with the corporation solely because such
627 risk has unrepaired damage caused by a covered loss that is the
628 subject of a claim that is being serviced by the Florida
629 Insurance Guaranty Association. This paragraph applies to a risk
630 until the earlier of 36 months from the date the Florida
631 Insurance Guaranty Association began servicing such claim or the
632 Florida Insurance Guaranty Association closes the claim.
633 Section 13. Paragraph (a) of subsection (10) of section
634 627.701, Florida Statutes, is amended to read:
635 627.701 Liability of insureds; coinsurance; deductibles.—
636 (10)(a) Notwithstanding any other provision of law, an
637 insurer issuing a personal lines residential property insurance
638 policy may include in such policy a separate roof deductible
639 that meets all of the following requirements:
640 1. The insurer has complied with the offer requirements
641 under subsection (7) regarding a deductible applicable to losses
642 from perils other than a hurricane.
643 2. The roof deductible may not exceed the lesser of 2
644 percent of the Coverage A limit of the policy or 50 percent of
645 the cost to replace the roof.
646 3. The premium that a policyholder is charged for the
647 policy includes an actuarially sound credit or premium discount
648 for the roof deductible.
649 4. The roof deductible applies only to a claim adjusted on
650 a replacement cost basis.
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651 5. The roof deductible does not apply to any of the
652 following events:
653 a. A total loss to a primary structure in accordance with
654 the valued policy law under s. 627.702 which is caused by a
655 covered peril.
656 b. A roof loss resulting from a hurricane as defined in s.
657 627.4025(2)(c).
658 c. A roof loss resulting from a tree fall or other hazard
659 that damages the roof and punctures the roof deck.
660 d. A roof loss requiring the repair of less than 50
661 percent of the roof.
662
663 If a roof deductible is applied, no other deductible under the
664 policy may be applied to the loss or to any other loss to the
665 property caused by the same covered peril.
666 Section 14. Subsection (2) of section 627.70132, Florida
667 Statutes, is amended to read:
668 627.70132 Notice of property insurance claim.—
669 (2) A claim or reopened claim, but not a supplemental
670 claim, under an insurance policy that provides property
671 insurance, as defined in s. 624.604, including a property
672 insurance policy issued by an eligible surplus lines insurer,
673 for loss or damage caused by any peril is barred unless notice
674 of the claim was given to the insurer in accordance with the
675 terms of the policy within 1 year after the date of loss. A
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676 supplemental claim is barred unless notice of the supplemental
677 claim was given to the insurer in accordance with the terms of
678 the policy within 18 months after the date of loss. The time
679 limitations of this subsection are tolled during any term of
680 deployment to a combat zone or combat support posting which
681 materially affects the ability of a servicemember as defined in
682 s. 250.01 to file a claim, supplemental claim, or reopened
683 claim.
684 Section 15. Chapter 2022-271, Laws of Florida, shall not
685 be construed to impair any right under an insurance contract in
686 effect on or before the effective date of that chapter law. To
687 the extent that chapter 2022-271, Laws of Florida, affects a
688 right under an insurance contract, that chapter law applies to
689 an insurance contract issued or renewed after the effective date
690 of that chapter law. This section is intended to clarify
691 existing law and is remedial in nature.
692 Section 16. For the 2023-2024 fiscal year, five positions
693 with associated salary rate of 325,000 and the sum of $494,774
694 in recurring funds and $23,410 in nonrecurring funds is
695 appropriated from the Insurance Regulatory Trust Fund to the
696 Department of Financial Services to implement this act.
697 Section 17. For the 2023-2024 fiscal year, 14 positions
698 with associated salary rate of 840,000 and the sum of $1,301,672
699 in recurring funds and $65,548 in nonrecurring funds is
700 appropriated from the Insurance Regulatory Trust Fund to the
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701 Office of Insurance Regulation to implement this act.
702 Section 18. This act shall take effect July 1, 2023.
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PCS for CS/HB 677
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: PCS for CS/HB 677 Electronic Payment Transactions
SPONSOR(S): Commerce Committee
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Commerce Committee Sellas Hamon
SUMMARY ANALYSIS
Electronic payments through either a debit card or credit card involve many parties to authorize, settle, and
fund the transaction between customer and merchant. A merchant will pay part of the transaction proceeds to
these parties. This amount is known as a merchant discount fee, and typically amounts to 1-3% of the total
transaction amount. The largest portion of the merchant discount fee is the interchange fee which is a fee
charged by an issuing bank to the merchant bank. The interchange fee allows for card benefits to the
cardholder but also reflects the risk of nonpayment from a cardholder as issuing banks will send out payments
to merchant banks before the cardholder pays the issuing bank.
The bill prohibits the charge of interchange fees on the taxes and tips that are charged paid by a consumer
through an electronic payment transaction. This applies to such transactions paid via debit card, credit card, or
any other payment device and approved through a payment card network. A payment card network can
comply with this prohibition by deducting the tax and tip portion of a transaction before calculating the
interchange fee or by rebating the portion of the interchange fee attributable to taxes and tips.
Violations related to interchange fee amounts are subject to a $1,000 civil penalty per violation. Additionally,
the improper fee amount must be refunded.
The bill also prohibits entities involved in facilitating or processing an electronic payment transaction from
utilizing or exchanging the information collected except to facilitate the electronic payment transaction or as
required by law. Violation of this provision will constitute a violation of the Florida Deceptive and Unfair Trade
Practices Act and is enforceable by the Attorney General or local State Attorneys.
The bill has an indeterminate negative impact on state expenditures and no impact on state revenues and local
government. It also has indeterminate negative impacts on the private sector.
The bill has an effective date of October 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: pcs0677.COM
DATE: 4/7/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Consumer Protection and the Florida Deceptive and Unfair Trade Practices Act
Generally, consumer protection laws focus on guarding against unfair and predatory trade practices
that harm, or have the potential to harm, consumers in the marketplace. 1 Certain consumer protection
laws are codified under ch. 501, F.S., which governs the regulation of trade, commerce, investments,
and solicitations. It also regulates the sale and advertising of goods, services, and consumer financial
products, such as credit cards, auto loans, and mortgages in the state. It includes several parts
providing to consumer protections to Floridians and visitors, such as the Florida Deceptive and Unfair
Trade Practices Act (FDUTPA),2 the Aftermarket Crash Parts Act,3 the Florida Telemarketing Act,4 the
Antifreeze Act of 1978,5 and the Patent Troll Prevention Act.6
FDUTPA protects consumers from deceptive acts that mislead consumers, and protects the consuming
public and legitimate business enterprises from those who engage in unfair methods of competition, or
unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce and
broadly declares unlawful any unfair or deceptive acts or practices committed in the conduct of any
trade or commerce. FDUTPA provides enforcement authority to either the office of the state attorney or
to the DLA depending on the circumstances of the violation. 7 The applicable enforcing authority may
bring an action to obtain a declaratory judgment, to enjoin any violator of FDUTPA, or on behalf of
consumers or government entities for the actual damages caused by a violator of FDUTPA.8
Florida Attorney General
The Attorney General is the chief legal enforcement officer of the State and, absent express legislative
restriction, may exercise such power and authority as the public interest may require. The Attorney
General is a member of the Cabinet. As chief legal officer of the State, the Attorney General must be
noticed in certain proceedings under Florida law and may bring actions on behalf of citizens of the state
as provided for by law.9
The Attorney General is also the head of the Department of Legal Affairs (DLA). The DLA is
responsible for providing all legal services required by any executive department unless otherwise
provided by law. The Attorney General, however, may authorize other counsel where emergency
circumstances exist and must authorize other counsel when a conflict of interest exists.
Electronic Payment Transactions and Interchange Fees
Even the smallest credit or debit card transactions involve a host of parties that facilitate the exchange
between the merchant and customer.
1 Georgetown Law, Consumer Protection, https://www.law.georgetown.edu/your-life-career/career-exploration-
professional-development/for-jd-students/explore-legal-careers/practice-areas/consumer-protection/ (last visited Apr. 7,
2023).
2 Ch. 501, part II, F.S.
3 Ch. 501, part III, F.S.
4 Ch. 501, part IV, F.S.
5 Ch. 501, part V, F.S.
6 Ch. 501, part VII, F.S.
7 s. 501.203(2), F.S.
8 s. 501.207, F.S.
9 See e.g., s. 501.207.
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These parties include the cardholder, merchant, merchant bank, payment processor, issuing bank, and
card association.10 In a typical transaction, a cardholder will purchase a good or service from a
merchant through the use of a credit or debit card. At this time the merchant will send a payment
authorization request to the merchant’s payment processor who in turn submits the transaction to the
correct card association.11 The card association will then send this authorization request to the issuing
bank where the transaction will either be approved or denied. 12 The issuing bank’s response will then
be sent back to the card association which sends the information to the merchant bank who sends the
information to the merchant.13
The parties:
The cardholder is the buyer in the transaction and has a line of credit or a debit account with an
issuing bank.
The merchant is the seller in the transaction and in choosing to accept debit card and credit
card purchases will partner with a payment processor.
A payment processor sends payment information to the customer’s card association.
A card association14 acts as an intermediary between the issuing bank (customer’s bank) and
the merchant bank as they relay both payment information to the issuing bank and the issuing
bank’s response to the merchant bank.
The issuing bank receives purchase information from the card association and either approves
or denies the transaction. It will inform the card association of its determination. Upon
determination from the issuing bank for a transaction the card association will inform the
merchant bank.
The merchant bank is the bank of the merchant and will inform the merchant of the issuing
bank’s determination.15
A credit card transaction is made up of three processes, the authorization process, the settlement
process, and the funding process.16 The authorization process happens near instantaneously and
results in either approval or denial.17 The authorization process reflects the issuing bank’s approval or
denial of a transaction which is then relayed through the card association’s payment network to the
merchant, as described above.
The settlement and funding process reflect the movement of funds from the issuing bank to the
merchant.18 Here, the merchant will send authorized transactions to their payment processor who
sends this information to the card association, who in turn sends this information to the issuing bank. 19
The issuing bank then charges the cardholder for the amount of the transaction. 20 At this time the
issuing bank transfers the transaction amount to the merchant bank, minus the interchange fee.21
Finally, the merchant bank deposits the transaction amount (minus interchange fees and other service
fees) into the merchant’s account.22
10 FIS Global, How Credit Card Processing Work s, https://www.fisglobal.com/en/insights/merchant-solutions-
worldpay/article/how-credit-card-processing-works (last visited Mar. 7, 2023).
11 Id.
12 Id.
13 Id.
14 Card associations are also referred to as card networks. Examples of card associations include Visa, Mastercard, and
Discover.
15 Id.
16 Id.
17 This process plays out in full when a debit or credit card is either accepted or rejected at a payment terminal.
18 FIS Global, How Credit Card Processing Work s, https://www.fisglobal.com/en/insights/merchant-solutions-
worldpay/article/how-credit-card-processing-works (last visited Mar. 7, 2023).
19 Id.
20 Id.
21 Id.
22 Id.
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In a debit or credit card transaction, a merchant will pay a portion of their sales to the various parties
that facilitate the use of the card. This payment is known as a merchant discount fee and is made of
three parts; the interchange fee, the acquirer fee, and the network processing fee. 23 The:
Interchange fee is paid to the issuing bank of the card in the transaction,
Acquirer fee is paid to the merchant’s bank, and
Network processing fee is paid to the card association. 24
The interchange fee is charged against the merchant bank by the issuing bank, but the merchant bank
will typically pass this cost onto the merchant.25 The default interchange fee amount is set by the card
association,26 but issuing and merchant banks can negotiate rates that differ from the default amount. 27
The interchange fee is typically a percentage of the underlying transaction amount, a flat fee, or a
combination of both.28 Typically, interchange fees will vary from 1-3% of the total transaction amount.29
Interchange fees cover the cost and risks that issuing banks face in facilitating the transaction as well
as funding the issuing bank’s cardholder reward programs.30
In 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act. An
amendment to this act, the Durbin Amendment, was adopted which mandated the Federal Reserve
Board of Governors (the Board) to reduce debit card interchange fees.31 Following this mandate the
Board issued Regulation II (Debit Card Interchange Fees and Routing) which established a cap on the
debit card interchange fees certain financial institutions can charge a merchant bank.32 Regulation II
limited the debit card interchange fee for these financial institutions to a base fee of $0.21, per
transaction, to cover the issuer’s processing cost, 0.05% of the transaction cost as a fee to cover fraud
losses, as well as a $0.01 fee, per transaction, to cover fraud prevention costs.33 On average, this
regulation cut the debit card interchange fee rate in half. 34
While the Durbin Amendment reduced the interchange fee rate it is unclear what the overall effect was
on merchants.35 An unintended effect of this bill was that small value transactions, that had been
charged a reduced rate in order to incentivize debit card adoption amongst merchants, now had their
rates raised to the maximum amount allowed to offset the amount lost due to reduced fees on large
value transactions.36 This led to interchange fee cost increasing for merchants with small value
transactions such as the fast food and delivery service industry. 37 Generally, it is unclear whether the
Durbin Amendment reduced debit card interchange fee costs on merchants in more than just a limited
manner.38
23 Electronic Payments Coalition, Overview of Interchange and its Value,
https://electronicpaymentscoalition.org/resources/overview-of-interc hange-and-its-value/ (last visited Mar. 7, 2023).
24 Id.
25 Testimony from Sarah Bloom Raskin, Governor, Board of Governors of the Federal Reserve System, Testimony
regarding Interchange fees from Feb. 17, 2011,
https://www.federalreserve.gov/newsevents/testimony/raskin20110217a.htm (last visited Mar. 7, 2023).
26 Id.
27 Electronic Payments Coalition, Overview of Interchange and its Value,
https://electronicpaymentscoalition.org/resources/overview-of-interc hange-and-its-value/ (last visited Mar. 7, 2023).
28 Julia Kagan, Interchange Rate: Definition, calculation Factors, Examples ,
https://www.investopedia.com/terms/i/interchange-
rate.asp#:~:text=Interchange%20rates%20are%20set%20by%20credit%20card%20companies%20such% 20as,might%20
set%20their%20rates%20annually. (last visited Mar. 7, 2023).
29 Id.
30 Payment Depot, A Practical Guide to Understanding Interchange Fees, https://paymentdepot.com/blog/interchange-
fees/ (last visited Mar. 7, 2023).
31 Renee Haltom and Zhu Wang, Did the Durbin Amendment Reduce Merchant Costs? Evidence from Survey Results ,
Federal Reserve Bank of Richmond, Dec. 2015, at 1.
32 Id. This restriction applies to financial institutions with more than $10 billion in assets.
33 Id. at 2.
34 Id.
35 Id.
36 Id.
37 Id. at 3.
38 Id. at 2.
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Effect of the Bill
The bill prohibits payment card networks from charging interchange fees on tips and fees on taxes
levied under s. 125.0104 and Chapter 212, F.S.39
The payment card network must deduct the applicable tip and tax amount from the calculation of the
interchange fee or rebate the amount attributable to the tip and tax amount. The deduction or rebate
must occur at the time of the settlement when the merchant submits the relevant tip and tax information
at the time of sale. If the merchant is unable to transmit the relevant tip and tax information at the time
of sale, the bill provides a merchant 180 days after the time of sale to submit tip amounts and proof of
tax amounts to the payment card network for the rebate. The payment card network must rebate the
amount of interchange fee attributable to the tip and tax amount to the merchant or credit the
merchant’s settlement account within 30 days of the merchant submitting the proof of the tip and tax
amount.
The bill creates a civil penalty of up to $1,000, per violation, for violations of the bill’s requirements. In
addition, the payment card network must refund the portion of the interchange fee derived from the tip
and tax portion of the electronic payment transaction.
The bill also prohibits entities that facilitate or process an electronic payment transaction from utilizing
or exchanging the information collected except to facilitate the electronic payment transaction or as
required by law. Violation of this provision will constitute a violation of the Florida Deceptive and Unfair
Trade Practices Act and is subject to civil actions by the enforcing authority under the Act. 40
The bill provides an effective date of October 1, 2023.
B. SECTION DIRECTORY:
Section 1: Creates s. 501.0119, F.S., relating to restrictions on electronic payment transactions.
Section 2: Provides an effective date of October 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
The bill has an indeterminate, negative fiscal impact on DLA for possible enforcement of the bill’s
requirements.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
39 Chapter 212, F.S., establishes the tax on sales, use, and other transactions, while s. 125.0104, F.S., establishes the
tourist development tax.
40 This does not include the private right of action otherwise authorized by FDUPTA.
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C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may require the implementation of new point of sale hardware and software and transaction
processing software by the various participants in the transaction process to implement the bills
requirements.
D. FISCAL COMMENTS:
State and local government, when making purchases or processing payments using credit or debit
cards will be impacted in the same fashion as the general public.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to require counties or municipalities to spend
funds or take action requiring the expenditures of funds; reduce the authority that
counties or municipalities have to raise revenues in the aggregate; or reduce the
percentage of state tax shared with counties or municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
STORAGE NAME: pcs0677.COM PAGE: 6
DATE: 4/7/2023
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
PCS for CS/HB 677 2023
1 A bill to be entitled
2 An act relating to electronic payment transactions;
3 creating s. 501.0119, F.S.; defining terms; requiring
4 that certain amounts listed on evidences of sales must
5 be excluded from the amount on which an interchange
6 fee is charged for that electronic payment
7 transaction; specifying requirements for payment card
8 networks in deducting or rebating amounts; requiring
9 merchants and sellers to provide to payment card
10 networks proof of certain amounts or sales data within
11 a specified timeframe under certain circumstances;
12 specifying requirements for payment card networks if a
13 merchant or seller is unable to capture and transmit
14 specified amounts relevant to the sale at the time of
15 sale; providing a penalty; limiting use of data in
16 certain circumstances; providing for enforcement;
17 providing an effective date.
18
19 Be It Enacted by the Legislature of the State of Florida:
20
21 Section 1. Section 501.0119, Florida Statutes, is created
22 to read:
23 501.0119 Restrictions on Electronic Payment Transactions. —
24 (1) As used in this section, the term:
25 (a) "Acquirer bank" means a member of a payment card
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PCS for CS/HB 677 2023
26 network which contracts with a merchant for the settlement of
27 electronic payment transactions. An acquirer bank may contract
28 directly with merchants or indirectly through a processor to
29 process electronic payment transactions.
30 (b) "Authorization" means the process through which a
31 merchant requests approval for an electronic payment transaction
32 from the issuer.
33 (c) "Clearance" means the process of transmitting final
34 transaction data from a merchant to an issuer for posting to the
35 cardholder's account and the calculation of fees and charges,
36 including interchange fees, which apply to the issuer and
37 merchant.
38 (d) "Credit card" means a card, plate, coupon book, or
39 other credit device existing for the purpose of obtaining money,
40 property, labor, or services on credit.
41 (e) "Debit card":
42 1. Means a card, or other payment code or device, issued
43 or approved for use through a payment card network to debit an
44 asset account, regardless of the purpose for which the account
45 is established, whether authorization is based on a signature, a
46 personal identification number, or other means;
47 2. Includes a general-use prepaid card, as defined in 15
48 U.S.C. s. 1693l-1; and
49 3. Excludes paper checks.
50 (f) "Electronic payment transaction" means a transaction
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PCS for CS/HB 677 2023
51 in which a person uses a debit card, credit card, or other
52 payment code or device issued or approved through a payment card
53 network to debit a deposit account or use a line of credit,
54 whether authorization is based on a signature, a personal
55 identification number, or other means.
56 (g) “Tip” means a sum of money paid in addition to the
57 payment obligation for the good or service obtained, including,
58 but not limited to, a payment for the benefit one or more
59 individuals who facilitate the provision of a good or service.
60 (h) "Interchange fee" means a fee established, charged, or
61 received by a payment card network for the purpose of
62 compensating the issuer for its involvement in an electronic
63 payment transaction.
64 (i) "Issuer" means a person issuing a debit card or credit
65 card or the issuer's agent.
66 (j) "Merchant" has the same meaning as the term "dealer"
67 in s. 212.06(2).
68 (k) "Payment card network" means an entity:
69 1. That directly or through licensed members, processors,
70 or agents provides the proprietary services, infrastructure, and
71 software that route information and data to conduct electronic
72 payment transaction authorization, clearance, and settlement;
73 and
74 2. That a merchant uses to accept as a form of payment a
75 brand of debit card, credit card, or other device that may be
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PCS for CS/HB 677 2023
76 used to carry out electronic payment transactions.
77 (l) "Processor" means an entity that facilitates,
78 services, processes, or manages the debit or credit
79 authorization, billing, transfer, payment procedures, or
80 settlement with respect to any electronic payment transaction.
81 (m) "Settlement" means the process of transmitting sales
82 information to the issuing bank for collection and reimbursement
83 of funds to the merchant and calculating and reporting the net
84 transaction amount to the issuer and merchant for an electronic
85 payment transaction that is cleared.
86 (n) "Tax" means all taxes and fees levied under chapter
87 212 and s. 125.0104.
88 (o) "Tax documentation" means documentation sufficient for
89 the payment card network to determine the total amount of the
90 electronic payment transaction and the tax amount of such
91 transaction. Tax documentation may be related to a single
92 electronic payment transaction or multiple electronic payment
93 transactions aggregated over a period of time. Examples of tax
94 documentation include, but are not limited to, invoices,
95 receipts, journals, ledgers, and tax returns filed with the
96 Department of Revenue or local taxing authorities.
97 (2) This section does not apply to an electronic payment
98 transaction in which the tax or tip amount is not separately
99 stated on the consumer's payment invoice, sales slip, or other
100 evidence of sale as required under s. 212.07(2).
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101 (3) This section does not create liability for payment
102 card network regarding the accuracy of the tax or tip data
103 reported by the merchant.
104 (4) Except as provided in subsection (2), an issuer, a
105 payment card network, an acquirer bank, or a processor may not
106 receive or charge the merchant any interchange fees on the tax
107 or tip amount of an electronic payment transaction if the
108 merchant informs the acquirer bank or its designee of such tax
109 or tip amount as part of the authorization process for the
110 electronic payment transaction. A merchant must transmit the tax
111 or tip amount data as part of the authorization process to avoid
112 being charged interchange fees on the tax or tip amount of an
113 electronic payment transaction.
114 (5) A merchant that does not transmit the tax or tip
115 amount data in accordance with subsection (3) may submit tax
116 documentation or tip amount data for the electronic payment
117 transaction to the acquirer bank or its designee no later than
118 180 days after the date of the electronic payment transaction,
119 and within 30 days, the issuer must credit to the merchant the
120 amount of interchange fees charged on the tax or tip amount of
121 the electronic payment transaction.
122 (6) An issuer, a payment card network, an acquirer bank, a
123 processor, or other designated entity that has received the tax
124 or tip amount data and violates this section is subject to a
125 civil penalty of $1,000 per electronic payment transaction, and
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PCS for CS/HB 677 2023
126 the issuer must refund the merchant the interchange fee
127 calculated on the tax or tip amount relative to the electronic
128 payment transaction.
129 (7) An entity involved in facilitating or processing an
130 electronic payment transaction, other than the merchant,
131 including, but not limited to, an issuer, a payment card
132 network, an acquirer bank, or a processor may not distribute,
133 exchange, transfer, disseminate, or utilize the electronic
134 payment transaction data except to facilitate or process the
135 electronic payment transaction or as required by law. A
136 violation of this subsection constitutes a violation of the
137 Florida Deceptive and Unfair Trade Practices Act under part II
138 of this chapter. Notwithstanding s. 501.211, violations must be
139 enforced only by the enforcing authority, as defined in s.
140 501.203(2), and subject the violator to the sanctions and
141 penalties provided for in that part. If such action is
142 successful, the enforcing authority is entitled to reasonable
143 attorney fees and costs.
144 Section 2. This act shall take effect October 1, 2023.
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COMMERCE COMMITTEE
PCS for CS/HB 677 by Rep. Caruso
Relating to Interchange Fees on Taxes
AMENDMENT SUMMARY
April 7, 2023
Amendment 1 by Rep. Tant (Strike-all): The amendment permits any person or entity who
has an annual revenue of $1 million or less and meets certain requirements to be given the
entire amount of the tax due and remitted as a deduction, not to exceed $2,400. This doubles
the allowed deduction. The amendment also changes the “act relating to” clause of the title.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. PCS for CS/HB 677 (2023)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/O OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Commerce Committee
2 Representative Tant offered the following:
3
4 Amendment (with title amendment)
5 Remove everything after the enacting clause and insert:
6 Section 1. Paragraph (a) of subsection (1) of section
7 212.12, Florida Statutes, is amended to read:
8 212.12 Dealer's credit for collecting tax; penalties for
9 noncompliance; powers of Department of Revenue in dealing with
10 delinquents; rounding; records required.—
11 (1)(a)1. Except as provided in subparagraph 2., and
12 notwithstanding any other law and for the purpose of
13 compensating persons granting licenses for and the lessors of
14 real and personal property taxed hereunder, for the purpose of
15 compensating dealers in tangible personal property, for the
16 purpose of compensating dealers providing communication services
PCS for CSHB 677 Strike1
Published On: 4/7/2023 7:22:41 PM
Page 1 of 3
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. PCS for CS/HB 677 (2023)
Amendment No. 1
17 and taxable services, for the purpose of compensating owners of
18 places where admissions are collected, and for the purpose of
19 compensating remitters of any taxes or fees reported on the same
20 documents utilized for the sales and use tax, as compensation
21 for the keeping of prescribed records, filing timely tax
22 returns, and the proper accounting and remitting of taxes by
23 them, such seller, person, lessor, dealer, owner, or and
24 remitter who files the return required pursuant to s. 212.11
25 only by electronic means and who pays the amount due on such
26 return only by electronic means shall be allowed 2.5 percent of
27 the amount of the tax due, accounted for, and remitted to the
28 department in the form of a deduction. However, if the amount of
29 the tax due and remitted to the department by electronic means
30 for the reporting period exceeds $1,200, an allowance is not
31 allowed for all amounts in excess of $1,200. For purposes of
32 this paragraph, the term "electronic means" has the same meaning
33 as provided in s. 213.755(2)(c).
34 2. Notwithstanding subparagraph 1., any seller, person,
35 lessor, dealer, owner, or remitter described in subpara graph 1.
36 who has an annual revenue of $1 million or less, who files the
37 return required pursuant to s. 212.11 only by electronic means,
38 and who pays the amount due on such return only by electronic
39 means shall be allowed the entire amount of the tax due,
40 accounted for, and remitted to the department in the form of a
41 deduction. However, if the amount of the tax due and remitted to
PCS for CSHB 677 Strike1
Published On: 4/7/2023 7:22:41 PM
Page 2 of 3
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. PCS for CS/HB 677 (2023)
Amendment No. 1
42 the department by electronic means for the reporting period
43 exceeds $2,400, an allowance is not allowed for all amounts in
44 excess of $2,400.
45 Section 2. This act shall take effect October 1, 2023.
46
47 -----------------------------------------------------
48 T I T L E A M E N D M E N T
49 Remove everything before the enacting clause and insert:
50 A bill to be entitled
51 An act relating to credits for tax remittance by electronic
52 means; amending s. 212.12, F.S.; increasing the allowance
53 authorized for the amounts of taxes due, accounted for, and
54 remitted to the Department of Revenue under certain
55 circumstances; providing exceptions; providing an effective
56 date.
PCS for CSHB 677 Strike1
Published On: 4/7/2023 7:22:41 PM
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