Commerce Committee — Meeting Packet (April 24, 2023)
Summary
The Florida House of Representatives Commerce Committee meeting packet is for Monday, April 24, 2023, 12:00 PM - 5:00 PM at Webster Hall. The agenda lists bills for consideration, including HB 451 Valuation of Timeshare Units, HB 1333 on occupational licensing, and PCS for HB 1617 on immigration. The packet includes the staff analysis of HB 451, which says the bill provides that on an appeal of a property appraiser's valuation, the number of resales is deemed adequate if the taxpayer asserts a reasonable number and that is supported by the Uniform Standards of Professional Appraisal Practice. The Revenue Estimating Conference estimates a recurring negative impact on local government property tax revenues of $208.2 million.
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Commerce Committee
Monday, April 24, 2023
12:00 PM - 5:00 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 24, 2023
12:00 PM – 5:00 PM
Webster Hall (212 Knott)
I. Call to Order
II. Roll Call
III. Opening Remarks
IV. Consideration of the following bill(s):
• HB 451 Valuation of Timeshare Units by Fine
• CS/HB 1241 Safety Standards for Amusement Rides by Regulatory Reform &
Economic Development Subcommittee, Bracy Davis
• HB 1333 Interstate-Mobility and Universal-Recognition Occupational Licensing
Act by Koster
• CS/HB 1383 Specialty Contractors by State Administration & Technology
Appropriations Subcommittee, Trabulsy, Mooney
• CS/HB 1547 Technology Transparency by Regulatory Reform & Economic
Development Subcommittee, McFarland
• CS/HB 1549 Pub. Rec./Investigations by the Department of Legal Affairs by
Regulatory Reform & Economic Development Subcommittee, McFarland
Consideration of the following proposed committee bill(s):
• PCB COM 23-05 -- Changes in Ownership of or Interest in Pari-mutuel Permits
303 House Office Building, 402 South Monroe Street, Tallahassee, FL 32399-1300
(850) 717-4870
Consideration of the following proposed committee substitute(s):
• PCS for CS/HB 669 -- Improvements to Real Property
• PCS for HB 917 -- Wage and Employment Benefits
• PCS for CS/HB 1013 -- Protection from Discrimination Based on Health Care
Choices
• PCS for CS/HB 1015 -- Pub. Rec./Protection from Discrimination Based on
Health Care Choices
• PCS for HB 1617 – Immigration
V. Closing Remarks
VI. Adjournment
HB 451
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 451 Valuation of Timeshare Units
SPONSOR(S): Fine
TIED BILLS: IDEN./SIM. BILLS: SB 1450
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY
CHIEF
1) Ways & Means Committee 14 Y, 4 N Berg Aldridge
2) Commerce Committee Fletcher Hamon
SUMMARY ANALYSIS
Under Florida law, a property appraiser must first look to the resale market to value timeshare property. If the
property appraiser determines that there is an inadequate number of resales to provide a basis for determining
value, the property appraiser must use the original purchase price of the timeshare and then deduct “usual and
reasonable fees and costs of the sale” to determine value.
The bill provides that upon an appeal of a property appraiser’s valuation of timeshare property, the number of
resales is deemed to be adequate if the taxpayer asserts that there is a reasonable number of resales and
such assertion is supported by the Uniform Standards of Professional Appraisal Practice.
The bill does not have an effect on state government revenues or expenditures. However, the Revenue
Estimating Conference estimates that the bill would have a recurring negative impact on local government
property tax revenues of $208.2 million ($77.5 million school taxes; $130.7 million non-school taxes), beginning
in FY 2023-24. The bill will have an indeterminate positive fiscal impact on the private sector.
The bill is effective July 1, 2023.
This bill may be a county or municipality mandate requiring a two-thirds vote of the membership of the
House. See Section III.A.1 of the analysis.
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
Timeshares
A timeshare interest is a form of ownership of real and personal property. 1 In a timeshare, multiple
parties hold the right to use a condominium unit or a cooperative unit. Each owner of a timeshare
interest is allotted a period of time during which the owner has the exclusive right to use the property.
The Florida Vacation Plan and Timesharing Act, ch. 721, F.S., establishes requirements for the
creation, sale, exchange, promotion, and operation of timeshare plans, including requirements for full
and fair disclosure to purchasers and prospective purchasers. 2 Chapter 721, F.S., applies to all
timeshare plans consisting of more than seven timeshare periods over a period of at least three years
in which the accommodations and facilities are located within this state or offered within this state. 3 Part
I of ch. 721, F.S., relates to vacation plans and timesharing, and Part II of chapter 721, F.S., relates to
multisite vacation and timeshare plans that are also known as vacation clubs.
A timeshare unit is an accommodation of a timeshare plan which is divided into timeshare periods or a
condominium unit in which timeshare estates have been created. 4
A “timeshare estate” is a right to occupy a timeshare unit, coupled with a freehold estate or an estate
for years with a future interest in a timeshare property or a specified portion thereof.5 The term also
includes an interest in a condominium unit, a cooperative unit, or a trust. Whether the term includes
both direct and indirect interests in trusts is not specified. An example of an indirect interest in a trust is
the interest of a trust beneficiary’s spouse or other dependent.
The “managing entity” for a timeshare property is the person who operates or maintains the timeshare
plan pursuant to s. 721.13(1), F.S., which defines the managing entity as either the developer, a
separate manager or management firm, or an owners' association. 6
Tax Assessments
Section 192.037, F.S., governs the ad valorem taxation of fee timeshare real property. 7 The managing
entity responsible for operating and maintaining fee timeshare real property is considered the taxpayer
as an agent of the timeshare period titleholder.8
The managing entity responsible for operating and maintaining the timesharing plan and each person
having a fee interest in a timeshare unit or timeshare period may contest or appeal an ad valorem tax
assessment in the same manner as other property owners under ch. 194, F.S., which relates to the
administrative and judicial review of property taxes assessed by the property appraiser. 9
1 See s. 721.05(36), F.S.
2 S. 721.02(2) and (3), F.S.
3 S. 721.03, F.S.
4
See ss. 721.05(41) and 718.103(26), F.S.
5 S. 721.05(34), F.S.
6 See s. 721.02(22), F.S., defining the term “managing entity.”
7 S. 192.001(14), F.S., defines the term “fee timeshare real property” to mean “the land and buildings and other improvements t o land
that are subject to timeshare interests which are sold as a fee interest in real property.”
8 S. 192.001(15), F.S., defines the term “timeshare period titleholder” to mean “the purchaser of a timeshare period sold as a fee
interest in real property, whether organized under ch. 718, F.S., relating to condominium associations, or ch. 721, F.S, relating to
timeshares and vacation plans.
9 S. 192.037(4), F.S.
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The managing entity is required to collect and remit the taxes and special assessments due on fee
timeshare real property. In allocating taxes, special assessments, and common expenses to individual
timeshare period titleholders, the managing entity must clearly label the portion of any amounts due
which are attributable to ad valorem taxes and special assessments. 10
A property appraiser must first look to the resale market for determining the value of timeshare
property.11 In order for resales to meet the definition of “fair market” value, those resales must
constitute arms-length transactions.12 If the property appraiser finds an inadequate number of resales
exists for such a determination, the property appraiser must determine the value by deducting the
“usual and reasonable fees and costs of the sale” from the original purchase price. 13
The term “usual and reasonable fees and costs of the sale” for timeshare real property includes all
marketing costs, atypical financing costs, and those costs attributable to the right of a timeshare unit
owner or user to participate in an exchange network of resorts. 14 For timeshare real property, the “usual
and reasonable fees and costs of the sale” is presumed to be 50 percent of the original purchase price,
but that presumption is rebuttable.15
Litigation
The valuation of timeshare properties has been the subject of recent litigation. In Star Island Vacation
Ownership Ass'n v. Scarborough, 313 So. 3d 1168 (Fla. Dist. Ct. App. 2021), the Fifth District Court of
Appeals per curium affirmed the ruling of the circuit court that the resale market of timeshares does not
provide a sufficient basis for obtaining reliable resale data. 16
In Star Island, the Property Appraiser presented evidence that during the year at issue (2014), out of
approximately 25,000 total sales of timeshares, only 3,790 were classified as resales. 17 Of those
resales, approximately 90% were transacted for nominal amounts which removed them from
consideration for valuation purposes.18 The Property Appraiser also presented evidence that the
exceedingly large number of resales at nominal amounts reflected significant financial distress in the
overall market.19 The remaining number of resales constituted less than 1.7% of the total timeshare
sales market each year.20 When evaluating the sales from the viewpoint of total sales consideration, the
resale market constituted less than 1% of the total sales of timeshares. 21
While there were hundreds of developer sales each year that clearly qualified as arms-length
transactions reflective of just value, the resales showed no consistent trend in pricing, and, accordingly,
the court agreed with the Property Appraiser that there were not a sufficient number (only 4 resales
potentially qualified as arms-length transactions) to support an accurate, credible, and reliable value
conclusion.22 In sum, the court concluded that the resale market does not provide a sufficient basis for
obtaining reliable sales data.23
Effect of Proposed Changes
The bill amends s. 192.037, F.S., to provide that in any tax appeal regarding a timeshare unit, if the
taxpayer asserts that there are an adequate number of resales to provide a basis for arriving at value
10 S. 192.037(5), F.S.
11 S. 192.037(10), F.S.
12 Star Island v. Scarborough, case no. 2016-CA-1006-OC, 9th Cir. Ct. Fla. 2019.
13 S. 192.037(11), F.S.
14 S. 192.037(11), F.S.
15 S. 192.037(11), F.S.
16 Star Island v. Scarborough, case no. 2016-CA-1006-OC, 9th Cir. Ct. Fla. 2019.
17 Id.
18 Id.
19 Id.
20 Id.
21 Id.
22 Id.
23 Id.
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conclusions, the number of resales must be considered adequate if the taxpayer provides a reasonable
number of resales and such number is supported by the most recent standards adopted by the Uniform
Standards of Professional Appraisal Practice.24
The bill further provides that this method meets the requirement of just valuation of all property, as
provided in s. 4, Art. VII of the State Constitution.
The bill is effective July 1, 2023.
B. SECTION DIRECTORY:
Section 1: Amends s. 192.037, F.S., relating to fee timeshare real property; taxes and
assessments; escrow.
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:
The Revenue Estimating Conference estimates that the bill would have a recurring negative impact
on local government property tax revenues of $208.2 million ($77.5 million school taxes; $130.7
million non-school taxes), beginning in FY 2023-24.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Individuals having an interest in a timeshare unit or timeshare period may benefit from a reduction in
assessed ad valorem taxes.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
24 Adopted by Congress in 1989, the Uniform Standards of Professional Appraisal Practice are the generally recognized ethical and
performance standards for the appraisal profession in the United States . See The Appraisal Foundation, What is UPAP?, available at:
https://www.appraisalfoundation.org/imis/TAF/Standards/Appraisal_Standards/Uniform_Standards _of_Professional_Appr
aisal%20Practice/TAF/USPAP.aspx (last visited April 23, 2023).
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1. Applicability of Municipality/County Mandates Provision:
The county/municipality mandates provision of Art. VII, section 18, of the Florida Constitution may
apply because this bill may reduce the authority of cities and counties to raise total aggregate
revenues. This bill does not appear to qualify under any exemption or exception. If the bill does
qualify as a mandate, final passage must be approved by two-thirds of the membership of each
house of the Legislature.
2. Other:
The bill provides that the valuation methodology provided for in the bill meets the requirement of
just valuation of all property, as provided in s. 4, Art. VII of the State Constitution. The authority to
make this determination vests with the judicial branch of state government.25
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
25 See Art. V, s. 1., and Art. III, s. 3., Fla. Const.
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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 451 2023
1 A bill to be entitled
2 An act relating to valuation of timeshare units;
3 amending s. 192.037, F.S.; specifying the methodology
4 by which certain timeshare units must be valued in
5 certain tax appeals; providing that the methodology
6 meets the constitutional mandate for just valuation;
7 providing an effective date.
8
9 Be It Enacted by the Legislature of the State of Florida:
10
11 Section 1. Subsection (12) of section 192.037, Florida
12 Statutes, is renumbered as subsection (13), and a new subsection
13 (12) is added to that section to read:
14 192.037 Fee timeshare real property; taxes and
15 assessments; escrow.—
16 (12) In all tax appeals regarding timeshare units in which
17 the taxpayer asserts that there are an adequate number of
18 resales to provide a basis for arriving at value conclusions,
19 the number of resales shall be considered adequate when a
20 reasonable number of resales are provided by the taxpayer and
21 supported by the most recent standards adopted by the Uniform
22 Standards of Professional Appraisal Practice. This methodology
23 meets the requirement of just valuation of all real estate
24 located in this state, including timeshare units, as recognized
25 by and provided in s. 4, Art. VII of the State Constitution.
Page 1 of 2
CODING: Words stricken are deletions; words underlined are additions.
hb0451-00
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 451 2023
26 Section 2. This act shall take effect July 1, 2023.
Page 2 of 2
CODING: Words stricken are deletions; words underlined are additions.
hb0451-00
CS/HB 1241
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1241 Safety Standards for Amusement Rides
SPONSOR(S): Regulatory Reform & Economic Development Subcommittee, Bracy Davis and others
TIED BILLS: HB 1243 IDEN./SIM. BILLS: CS/SB 902
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY
CHIEF
1) Regulatory Reform & Economic Development 15 Y, 0 N, As CS Larkin Anstead
Subcommittee
2) Agriculture & Natural Resources Appropriations 14 Y, 0 N Byrd Pigott
Subcommittee
3) Commerce Committee Larkin Hamon
SUMMARY ANALYSIS
The Department of Agriculture and Consumer Services (DACS) is required to inspect all amusement rides in
Florida, except those at large parks with more than 1,000 employees and inspectors on staff. All temporary
amusement rides are inspected each time they are moved or set up at a new location, and permanent rides
are inspected semiannually. All amusement rides are required to be permitted annually, required to undergo
nondestructive testing for structural integrity, and must have an annual inspection by a professional engineer or
qualified inspector. DACS can investigate accidents, impose sanctions for violations, and close and impound
amusement rides that are a danger to the public.
The bill:
Renames the act related to safety standards for amusement rides, “The Tyre Sampson Act”.
Requires permanent amusement rides operated for the first time in this state after a specified date to
have a ride commissioning and certification report on file with the DACS within a specified timeframe.
Revises nondestructive testing and affidavit requirements.
Provides authority for DACS to inspect certain rides that are exempt from inspection, at the request of
DACS.
Revises requirements for posting signs relating to rider qualifications.
Revises the circumstances under which the owner or manager of an amusement ride is required to report
an accident and under which DACS may impound an amusement ride involved in an accident.
Authorizes DACS to impound rides with similar operating characteristic to other rides involved in an
accident investigation.
Requires DACS to produce a written report of all accident investigations.
Revises circumstances under which an amusement ride may be considered an immediate serious danger
to the public.
Requires that amusement ride owners record maintenance and training data at the time the maintenance
or training was performed.
Directs DACS to create rules for operator training/retraining standards
The bill will have an indeterminate negative fiscal impact on DACS.
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
Tyre Sampson
In March 2022, 14-year-old Tyre Sampson, who was visiting Orlando, Florida with his football team, fell
to his death from an amusement ride, the 400-foot (122-meter) drop tower ride, operated by Orlando
Slingshot1. The teenager was described as great athlete, hard worker, a very good and generous
person, and “a big teddy bear, a gentle giant.”2
After an investigation, outside engineers reported that sensors on the ride had been adjusted manually
to double the size of the opening for restraints on two seats, resulting in the teen not being properly
secured.3 The attendant who strapped Sampson into the ride was newly hired. The ride has since been
shut down and the company has been fined by the DACS.
Amusement Ride Inspections
DACS is required to inspect all amusement rides in Florida, except those at large parks with more than
1,000 employees and an inspector on staff. The Bureau of Fair Rides Inspection within the department
is required to inspect, investigate, and enforce the regulations related to amusement rides.4
Amusement rides regulated in the state of Florida fall into two major groups:
Temporary amusement rides (those that are regularly relocated with or without assembly);
Permanent facility amusement rides (those that are not regularly relocated and operate as a
lasting part of the premises).5
All temporary amusement rides are inspected each time they are moved or set up at a new location,
and permanent rides are inspected semiannually. All amusement rides are required to be permitted
annually, are required to undergo nondestructive testing for structural integrity, and must have an
annual inspection by a professional engineer or qualified inspector. 6
DACS also inspects go-kart tracks, water-related amusement rides, and zip-line courses operating in
the state.7
In addition, DACS investigates accidents involving amusement rides and has the authority to impose
sanctions on amusement ride owners for violation of the law. DACS can close and impound
amusement rides that pose an immediate serious danger to public health, safety, and welfare. 8
Adoption of Standards
1 Curt Anderson, Florida Amusement Park Where Tyre Sampson Fell to His Death Fined $250,000 , ABC Channel 7, Nov. 22, 2022,
https://www.mysuncoast.com/2022/11/22/florida-amusement-park-where-tyre-sampson-fell-his-death-fined-250000/ (last visited March
22, 2023).
2 CNN, Alisha Eb rahimji, Teen who died at Florida amusement park was a footb all standout and a ‘gentle giant’ with a kind heart , loved
ones say, Mar. 28, 2022, https://www.cnn.com/2022/03/28/us/tyre-sampson-icon-park-teen-death/index.html
3 Id.
4 S. 616.242, F.S.
5 Florida Department of Agriculture and Consumer Services, Fair Rides Inspection, https://fdacs.gov/Business-Services/Fairs/Fair-
Rides-Inspection (last visited March 22, 2023).
6 Id.
7 Id.
8 Id.
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The DACS is required to adopt by rule standards for amusement rides which are the same as or similar
to the following national standards:
American Society for Testing and Materials (ASTM) Committee F-24 Standards on Amusement
Rides and Devices;
National Electric Code Handbook, Article 525;
National Fire Protection Code 101 (chapters 8-4.6 and 9-4.6);
ASTM Standards: E543 Practice for Determining the Qualification of Nondestructive Testing
Agencies; and
American Society for Nondestructive Testing (ASNT) Document Recommended Practice for
Nondestructive Testing Personnel Qualification and Certification (SNT-TC-1A).9
DACS is authorized to adopt rules necessary to effectuate its statutory duties in the interest of public
health, safety, and welfare and to promote patron safety in the design, construction, assembly,
disassembly, maintenance, and operation of amusement rides in this state. 10
There are no mandatory national safety standards for U.S. amusement rides, but the amusement ride
industry has developed safety standards through the ASTM F-24 committee. The ASTM F-24
committee is responsible for standards related to amusement rides and devices. This includes
waterslides, inflatables, go-karts, zip lines and challenge courses, trampoline courts, and a growing list
of commercially-operated amusement experiences.11
Annual Permits
Amusement rides may not operate without an annual permit. To apply, an owner must submit to the
DACS a written application on a form prescribed by department rule, and include:
The legal name, address, and primary place of business of the owner;
A description, manufacturer’s name, serial number, model number, and, if previously as signed,
the United States Amusement Identification Number of the amusement ride;
A valid certificate of insurance for each amusement ride;
An affidavit of compliance (AOC) that the amusement ride was inspected and in general
conformance with the law and applicable rules;
The AOC must be executed by a professional engineer or a qualified inspector no earlier than
60 days before, but not later than, the date of filing of the application with DACS;
The owner is required to request inspection and permitting of the amusement ride within
60 days of the date of filing the application with DACS;
DACS is required to inspect and permit the amusement ride within 60 days after the filing of the
application with DACS;
If required, an affidavit of nondestructive testing dated and executed no earlier than 60 days
before, but not later than, the date of the filing of the application with DACS;
The owner is required to request inspection and permitting of the amusement ride within
60 days of the date of filing the application with DACS;
DACS is required to inspect and permit the amusement ride within 60 days after the filing of the
application with DACS; and
A request for inspection.12
Upon request, the owner must, at no cost to DACS, provide DACS with a copy of the manufacturer’s
current recommended operating instructions in the possession of the owner, the owner’s operating fact
9 S. 616.242(4), F.S.
10 Id.
11 ASTM International, Committee F24 on Amusement Rides and Devices, https://www.astm.org/get-involved/technical-
committees/committee-f24 (last visited March 22, 2023).
12 S. 616.242(5), F.S.
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sheet, and any written bulletins in the possession of the owner concerning the safety, operation, or
maintenance of the amusement ride.13
An annual permit must be issued to the owner when a completed application has been received, the
amusement ride has passed DACS inspection, and all applicable fees, as set by department rule, 14
have been paid.15
The annual permit:
Is valid for one year from the date of issuance;
Is not transferable; and
Must be displayed on the amusement ride in a place that is visible to patrons. 16
Nondestructive Testing
Background
Nondestructive testing is a means by which a person can evaluate the strength and integrity of a device
without altering or destroying it.17 The purpose of nondestructive testing to make sure that the device is
safe. The two types of nondestructive testing are visual and nonvisual testing.
Visual testing is used to look at the device to determine whether there are any signs of corrosion,
cracks, welding defects, deformation, and so forth.18
Nonvisual nondestructive testing consists of multiple kinds of methods that evaluate whether a latent
defect or issue exists.19
Nondestructive Testing Affidavit
In order to operate an amusement ride the owner must at all times have a current affidavit of
nondestructive testing from a professional engineer or qualified inspector. The affidavit provides that
the amusement ride has undergone nondestructive testing for metal fatigue at least annually.20
Nondestructive testing must be performed by a technician who meets the national standards for
amusement rides provided in department rule.21
Nondestructive testing for metal fatigue must include visual and nonvisual testing and can be
conducted more often than annually if required by any rule adopted under this section, the
manufacturer of the amusement ride, or the professional engineer or qualified inspector executing the
affidavit of nondestructive testing.22
An affidavit of nondestructive testing must provide:
13
Id.
14 R. 5J-18.012, F.A.C.
15 S. 616.242(5), F.S.
16 Id.
17
Nondestructive Testing Overview: A Comprehensive Guide to NDT, Zetec, May 5, 2020,
https://www.zetec.com/resources/nondestructive-testing-overview/ (last visited March 22, 2023); see also, Siim Sild, Non-Destructive
Testing (NDT): Process, Types & Applications, Fractory, Nov. 9, 2022, https://fractory.com/non-destructive-testing/ (last visited March
22, 2023).
18 Siim Sild,Non-Destructive Testing (NDT): Process, Types & Applications, Fractory, Nov. 9, 2022, https://fractory.com/non-destructive-
testing/ (last visited March 22, 2023); see also, Thomas R. Hay, “Non-Destructive Testing (NDT) of Amusement Park Rides.”
TechKnowServ, Feb. 27, 2020, https://www.techknowserv.com/post/non-destructive-testing-ndt-of-amusement-park-rides (last visited
March 22, 2023).
19 Nonvisual nondestructive test methods include ultrasonic testing, eddy-current testing, or magnetic flux leakage testing. Thomas R.
Hay, Non-Destructive Testing (NDT) of Amusement Park Rides, TechKnowServ, Feb. 27, 2020,
https://www.techknowserv.com/post/non-destructive-testing-ndt-of-amusement-park-rides (last visited March 22, 2023).
20 S. 616.242(6), F.S.
21 Id.
22 Id.
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That the amusement ride was inspected in person by the affiant;
That all nondestructive testing requirements are current;
That the nondestructive testing was performed by a qualified nondestructive testing technician.
The components of the amusement ride for which the manufacturer has recommended or
required nondestructive testing;
The type of nondestructive testing required or recommended by the manufacturer;
The frequency of the nondestructive testing required or recommended by the manufacturer;
The components of the amusement ride for which the affiant has recommended or required
nondestructive testing;
The type of nondestructive testing required or recommended by the affiant;
The frequency of the nondestructive testing as required or recommended by the affiant; and
That visual nondestructive testing is adequate for the amusement ride to be in general
conformance with the requirements of this section, and all applicable rules, if only visual
nondestructive testing is required or recommended by either the manufacturer or the affiant. 23
Nondestructive testing is not required for:
Fun houses;
Houses of mirrors;
Haunted houses;
Mazes;
Wave pools;
Wave-making devices;
Kiddie pools;
Slides that are fully supported by an earthen mound;
Non-motorized playground equipment that requires a manager; or
Lazy-river type non-motorized floating carriers propelled by water.24
Inspections
In order to obtain an annual permit, amusement rides must be inspected by DACS and receive an
inspection certificate. In addition, the following requirements must be met:
Permanent amusement rides must be inspected semiannually and receive an inspection
certificate; and
Temporary amusement rides must be inspected and receive an inspection certificate each time
the ride is set up or moved to a new location in this state unless the ride is:
o Used at a private event;
o A simulator, the capacity of which does not exceed 16 persons; or
o A kiddie ride used at a public event, provided that there are no more than three
amusement rides at the event, none of the kiddie rides at the event exceeds a capacity
of 12 persons, and the ride has an inspection certificate that was issued within the
preceding 6 months.25
To obtain a DACS inspection, the owner must submit a written request on a department prescribed
form providing the following information:
The legal name, address, and primary place of business of the owner;
A description, manufacturer’s name, serial number, model number, and the United States
Amusement Identification Number, if previously assigned, of the amusement ride; and
For a temporary amusement ride, for each time the amusement ride is set up or moved to a new
location, the date of first intended use at the new location and the address or a description of
the new location.26
23 Id.
24 Id.
25 S. 616.242(5), F.S.
26 Id.
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For permanent amusement rides, a request for inspection must be received by DACS at least 15 days
before the:
Owner’s planned opening date; or
Expiration of the prior inspection certificate. 27
For temporary amusement rides, the request for inspection must be received by DACS each time the
amusement ride is set up or moved to a new location at least 14 days before the date of first intended
use at the new location.28
In both cases, if the request for inspection is received late, DACS is authorized to inspect the
amusement ride and charge a late fee. In addition, if the owner fails to timely cancel a Request for
Inspection, requests holiday or weekend inspections, or is required to have a replacement United
States Amusement ID Program (USAID) plate issued by DACS, then the owner may be charged an
appropriate fee.29
Inspections are assigned on a first come, first served basis, and overflow requests will be scheduled on
the closest date to the date for which the inspection was requested. Upon failure of an amusement ride
to pass an inspection, the owner may request in writing a re-inspection. DACS is required to re-inspect
the ride as soon as practical following receipt of the written request and applicable re-inspection fees. 30
Upon passage of inspection and payment of the applicable fee, DACS must issue an inspection
certificate containing the following information:
Date of inspection;
Site of the inspection; and
Name of the inspector.31
Inspection certificates are valid only for the site stated on the certificate, for a period of not more than
6 months from the date of issuance. They are not transferable and must be displayed on the
amusement ride at a place readily visible to patrons.32
Fees
DACS is required by rule to establish fees to cover the costs and expenditures associated with the fair
rides inspection program, including all direct and indirect costs. If there is not sufficient general revenue
appropriated by the Legislature, the industry is required to pay for the remaining cost of the program.33
Fees must be deposited in the General Inspection Trust Fund. Any owner of an amusement ride who
has not paid all the fees required under this section or who has any unpaid fine outstanding under this
section, are prohibited from operating any amusement ride in this state until the fees and fines have
been paid to DACS.34
DACS has adopted the following fees:35
Permanent Temporary
Type of Fee
Ride Ride
Annual permit fee for each kiddie amusement ride $300 $150
Annual permit fee for each non-kiddie amusement ride $400 $200
27 Id.
28 S. 616.242(6), F.S.
29 S. 616.242(8)(d), F.S.
30 S. 616.242(8)(b)-(c), F.S.
31 Id.
32 Id.
33 S. 616.242(9), F.S.
34 Id.
35 R. 5J-18.012, F.A.C.
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Annual permit fee for each super amusement ride $600 $300
Inspection fee per go kart, in addition to the track inspection fee $10 $10
Reinspection fee (return to site) $500 $500
Reinspection fee (return on-site) $100 $100
Fee to replace a lost U.S. Amusement Identification (USAID) plate $100 $100
Fee per amusement ride for late inspection request $100 $100
Fee per amusement ride for failure to cancel inspection request $100 $100
Additional fee per amusement ride for inspection on weekend or $75 $75
state holiday
Inspection fee per harness, in addition to the ropes course/zipline $5 $5
permit fee
In order to obtain a permit to operate an amusement ride in Florida, the ride owner must obtain injury
liability insurance in the following amounts:
One million dollars minimum per occurrence; and
One million dollars in the aggregate.36
The policies must be procured from an insurer that is:
Licensed to transact business in this state; or
Approved as a surplus lines insurer.37
The insurance requirements do not apply to a governmental entity that is covered by the provisions of
s. 768.28(16), F.S., which authorizes the state and its agencies and subdivisions to:
Be self-insured;
Enter into risk management programs;
Purchase liability insurance for whatever coverage they may choose; or
Have any combination thereof.38
Exemptions
The regulations 39 related to amusement rides do not apply to the following:
Permanent facilities that employ at least 1,000 full-time employees and that maintain full-time,
in-house safety inspectors;
Any playground operated by a school, local government, or business licensed under
chapter 509, F.S., if the playground is an incidental amenity and the operating entity is not
primarily engaged in providing amusement, pleasure, thrills, or excitement;
Museums or other institutions principally devoted to the exhibition of products of agriculture,
industry, education, science, religion, or the arts;
Conventions or trade shows for the sale or exhibit of amusement rides if there are a minimum of
15 amusement rides on display or exhibition, and if any operation of such amusement rides is
limited to the registered attendees of the convention or trade show;
Skating rinks, arcades, laser or paint ball war games, bowling alleys, miniature golf courses,
mechanical bulls, inflatable rides, trampolines, ball crawls, exercise equipment, jet skis, paddle
boats, airboats, helicopters, airplanes, parasails, hot air or helium balloons whether tethered or
untethered, theatres, batting cages, stationary spring-mounted fixtures, rider-propelled merry-
go-rounds, games, side shows, live animal rides, or live animal shows;
Go-karts operated in competitive sporting events if participation is not open to the public;
Non-motorized playground equipment that is not required to have a manager;
36 S. 616.242(10), F.S.
37 Id.
38 Id.
39 S. 616.242, F.S. does not apply to these exemptions.
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Coin-actuated amusement rides designed to be operated by depositing coins, tokens, credit
cards, debit cards, bills, or other cash money and which are not required to have a manager,
and which have a capacity of six persons or less;
Motorsports facilities described in s. 549.09(1)(a), F.S., when such facilities are operating cars,
trucks, or motorcycles only;
Battery-powered cars or other vehicles that are designed to be operated by children seven
years of age or under and that cannot exceed a speed of four miles per hour;
Mechanically driven vehicles that pull train cars, carts, wagons, or other similar vehicles, that
are not confined to a metal track or confined to an area but are steered by an operator and do
not exceed a speed of 4 miles per hour;
Water-related amusement rides operated by a business licensed under chapter 509, F.S., if the
water-related amusement ride is an incidental amenity and the operating business is not
primarily engaged in providing amusement, pleasure, thrills, or excitement and does not offer
day rates;
Amusement rides at a private, membership-only facility if the amusement ride is an incidental
amenity and the facility is not open to the general public; is not primarily engaged in providing
amusement, pleasure, thrills, or excitement; and does not offer day rates; and
Nonprofit permanent facilities registered under ch. 496, F.S., which are not open to the general
public.40
DACS is authorized to establish by rule exemptions from the regulations on amusement rides for “non-
motorized or human-powered amusement rides or coin-actuated amusement rides.”41
Inspection Standards
Amusement rides are required to adhere to the following inspection standards:
All mechanical, structural, and electrical components that affect patron safety must be in good
working order.
All control devices, speed-limiting devices, brakes, and safety equipment designated by the
manufacturer must be in good working order.
Parts must be properly aligned and not be bent, distorted, cut, or otherwise injured to force a fit.
Parts requiring lubrication must be lubricated in the course of assembly. Fastening and locking
devices must be installed where required for safe operation.
Before being used by the public, an amusement ride must be placed or secured with blocking,
cribbing, outriggers, guys, or other means so as to be stable under all operating conditions.
Areas in which patrons may be endangered by the operation of an amusement ride must be
fenced, barricaded, or otherwise effectively guarded against inadvertent contact.
Machinery used in or with an amusement ride must be enclosed, barricaded, or otherwise
effectively guarded against inadvertent contact.
An amusement ride powered so as to be capable of exceeding its maximum safe operating
speed must be provided with a maximum-speed-limiting device.
The interior and exterior parts of all patron-carrying amusement rides with which a patron may
come in contact must be smooth and rounded and free from sharp, rough, or splintered edges
and corners, with no projecting studs, bolts, screws, or other projections which might cause
injury.
Signs that advise or warn patrons of age restrictions, size restrictions, health restrictions, weight
limitations, or any other special consideration or use restrictions required or recommended for
the amusement ride by the manufacturer must be prominently displayed at the patron entrance
of each amusement ride.
All amusement rides must comply with the section of law governing amusement rides and
related rules.42
40 S. 616.242(11), F.S.
41 Id.
42 S. 616.242(12), F.S.
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Major Modifications
After an amusement ride has undergone a major modification, and prior to the time it is placed in
operation, a Florida Licensed professional engineer must certify that the amusement ride is in
compliance with the entire section of law governing amusement ride safety, and all related rules. 43
Entry for Inspections
Authorized DACS employees may enter unannounced and inspect amusement rides at any time in a
reasonable manner and DACS is authorized to impose fees for unannounced inspections and recover
the cost of related tests.44 DACS employees are authorized to:
Question any owner or manager;
Inspect, investigate, photograph, and sample all pertinent places, areas, and devices; and
Conduct all appropriate tests including nondestructive testing. 45
Reporting and Investigating Accidents and Defects
Accidents that the owner or manager have knowledge or, through the exercise of reasonable diligence
should have knowledge, and for which a patron is transported to a hospital as defined in ch. 395, F.S.,
must be reported by the owner or manager to DACS. Such reporting must be conducted by telephone
within four hours after the accident and followed up with a written report to DACS within 24 hours after
the accident.
Any mechanical, structural, or electrical defects affecting patron safety for which an amusement ride is
closed to patron use for more than four hours must be reported by the owner or manager to DACS by
telephone or facsimile within eight hours after the closing of the ride. A written report of the closing must
be filed by the owner or manager with DACS within 24 hours after the ride closes.
Impounding Amusement Rides
DACS is authorized to impound amusement rides that have:
Been involved in an accident for which a patron is transported to a hospital as defined in
ch. 395, F.S.;
A mechanical, structural, or electrical defect affecting patron safety.
In cases of impoundment, DACS is authorized to impound any other amusement ride of a similar make
and model and perform all necessary tests to determine the cause of the accident, defect, or safety of
the ride and any other ride of a similar make and model. The ride owners are responsible for the cost of
impoundment and relating testing.46
Owner/Manager Inspections
Prior to opening each day of operation, and before any inspection by DACS, the owner or manager of
an amusement ride is required to inspect and test the ride to ensure compliance with all requirements
of the law governing amusement rides. Each inspection must be recorded on a form prescribed by
department rule and signed by the person who conducted the inspection. 47
In lieu of using the department form, an owner or manager may request approval of an alternative form,
which must include at least the information required on the department form. Inspection records of the
last 14 daily inspections must be:
Kept on site by the owner or manager; and
43 S. 616.242(13), F.S.
44 Id.
45 S. 616.242(14), F.S.
46 S. 616.242(15), F.S.
47 S. 616.242(16), F.S.
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Made immediately available to DACS upon request. 48
Employee Training
Owners or managers of amusement rides are required to:
Maintain a record of employee training for each employee who is authorized to operate,
assemble, disassemble, transport, or conduct maintenance on an amusement ride; and
Certify that each employee is trained on the amusement ride for which the employee is
responsible.49
The training record must be kept on site by the owner or manager and made immediately available to
DACS upon request. In lieu of using the department form, the owner or manager may request approval
of an alternative form.50
Training is prohibited when an amusement ride is open to the public, unless the training is conducted
under the supervision of an employee who is trained in the operation of that ride. 51
Enforcement and Penalties
DACS has the authority to deny, suspend for up to one year, or revoke any permit or inspection
certificate. In addition, DACS may impose an administrative fine pursuant to s. 570.971, F.S., not to
exceed $10,000 per violation, for each day the violation exists, against the owner of the amusement
ride if DACS finds that an amusement ride has operated or is operating:
With a mechanical, structural, or electrical defect that affects patron safety, of which the owner
or manger has knowledge, or, through the exercise of reasonable diligence, should have
knowledge;
In a manner or circumstance that presents a risk of serious injury to patrons;
At a speed in excess of its maximum safe operating speed;
In violation of department rules or state law; or
In violation of an order of DACS or any court.
A manager in the course of his or her duties is under the influence of drugs or alcohol. 52
DACS is required, in its order suspending a permit or inspection certificate, to specify the period during
which the suspension is effective, which may not exceed one year. The permit or inspection certificate
must remain suspended during the period, subject to any rescission or modification of the order by the
department or modification or reversal by the court, prior to expiration of the suspension period.53
The owner of an amusement ride whose permit or inspection certificate has been revoked by DACS
may not apply for another permit or inspection certificate for the amusement ride within 2 years after the
date of the revocation. If judicial review is sought and a stay of the revocation is obtained, the owner
may not apply for another permit or inspection certificate within 2 years after the final order of the court
sustaining the revocation.54
During the period of suspension or revocation, the owner may not engage in or attempt to engage in
any operation of the amusement ride for which a permit or inspection certificate is required. 55
When a DACS -imposed suspension period has expired, the owner may reapply for a new permit or
inspection certificate by submitting a complete application to DACS.56
48 Id.
49 S. 616.242(17), F.S.
50 Id.
51 Id.
52 S. 616.242(21), F.S.
53 Id.
54 Id.
55 Id.
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In addition, and notwithstanding the existence of any adequate remedy at law, DACS is authorized to
bring an action to enjoin the violation of any provision, or rules adopted, under this section, in the circuit
court of the county in which the violation occurs or is about to occur. Upon competent and substantial
evidence presented by DACS, the court is required to immediately issue the temporary or permanent
injunction sought by DACS without bond.57
In addition to the penalties, DACS is authorized to issue a letter of warning to the owner of the ride
specifying the violation and requiring immediate corrective action. 58
Any person who knowingly violates any of the provisions of the regulations governing amusement rides
commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or
s. 775.083, F.S.59
Consumer Product Safety Commission
The Consumer Product Safety Commission (Commission) is charged with protecting the public from
unreasonable risks of injury or death associated with the use of the thousands of types of consumer
products under the Commission’s jurisdiction. The Consumer Product Safety Act (Act) 60 authorizes the
Commission to investigate serious accidents involving portable carnival rides, inflatables, and go-karts.
Amusement rides operated at permanent parks (“permanently fixed to a site”) are exempt from
compliance with the Act.61
Ride manufacturers or owner/operators are required to notify the Commission if they obtain information
which reasonably supports the conclusion that a portable amusement ride, inflatable device, go-kart or
other non-exempt amusement device:
Fails to comply with a consumer product safety standard or banning regulation established by
the omission or a voluntary consumer product safety standard upon which the Commission has
relied under section 9 of the Act;62
Contains a defect which could create a substantial product hazard described in section 15(a)(2)
of the Act;63 or
Creates an unreasonable risk of serious injury or death.64
The Commission does not provide for an inspection program.
Other States
According to a consumer safety organization, Safeparks.org, the research of amusement ride laws in
50 states found the following:65
Degree of Oversight Number of States
56 Id.
57 Id.
58 Id.
59 Id.
60 15 U.S.C. ch. 47 § 2051 et seq.
61 “Consumer Product Safety Commission.” RidesDatabase, https://ridesdatabase.org/regulations/united-states/ (last visited March 23,
2023); see also, 15 U.S.C.A. § 2065 (2008).
62 See, 15 U.S.C. § 2058 (2008).
63 See, 15 U.S.C. § 2064.
64 15 U.S.C. § 2064(b)(4).
65 Safeparks, U.S. Federal and State Amusement Ride Regulation, https://ridesdatabase.org/saferparks/u-s-regulatory-agencies/ (last
visited March 22, 2023)
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Comprehensive Government Oversight 20 States
(Including
Florida)
Partial Government Oversight 12 States
Private Sector Oversight 9 States
No State Agency with Jurisdiction 8 States
Electrical Inspections Only 1 State
Effect of Bill
The bill, titled the Tyre Sampson Act, amends ch. 616, F.S. relating to the regulation of amusement
rides. The bill amends the definition of “major modification” and provides a definition for “ride
commissioning and certification report.”
The bill provides new requirements for permanent and temporary amusement rides and requires, for
each permanent or temporary amusement rides operated, for the first time after July 1, 2023, to have a
ride commissioning and certification report on file with DACS before the ride’s first inspection and a
permit is issued.
The bill provides exemptions for temporary amusement rides from required permit to include previously
permitted rides at private events and kiddie rides at public events not to exceed three amusement rides .
The bill permits DACS to inspect certain rides that are exempt from inspection upon request.
The bill requires nonvisual nondestructive testing to be used when it cannot be adequately evaluated by
other means and the type of nondestructive testing or recommended by affiant to include the
manufacturer’s requirements and recommendations. If there are no additional nondestructive testing it
is required to be affirmed that the manufacturer’s requirements are sufficient for safe operation.
The bill creates new reporting requirements for an affidavit of nondestructive testing. The affidavit of
nondestructive testing must include the following statement:
The ride is in conformance with the requirements of statute and applicable department rules,
and
Whether the amusement ride went under a major modification, the name of the person who
authorized modification and the date modification took place.
The bill permits DACS to immediately remove amusement ride from service if unsafe conditions are
found.
The bill requires that the proper positioning, measurements, and demonstration of proper patron
loading procedures related to patron safety restraint systems of an amusement ride must be provided
to the department upon request.
The bill provides that if rider restrictions are not provided from manufacturer, the owner or manager
must provide DACS with documentation from manufacturer stating that such restrictions are not
necessary for safe operation.
The bill permits DACS to prepare a written report of each investigation it conducts. The bill also
changes the accident reporting requirements for owners and managers following an accident and
changes the parameters in which DACS is permitted to impound an amusement ride involved in an
accident. DACS must establish by rule minimum training and retraining standards and the frequency of
employee training for all amusement rides. The bill also creates the requirement that the owner or
manager of an amusement ride shall immediately document all training following each training session.
The bill provides an effective date of July 1, 2023.
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B. SECTION DIRECTORY:
Section 1: Names the title of the Act.
Section 2: Amends s. 616.242 relating to certification reports, permit applications, temporary ride
exemptions, nondestructive testing, inspections and reports; reporting for accidents involving medical
treatment; impoundment of ride, DACS rules, and employee training.
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 has a negative fiscal impact due to a number of regulatory changes and requirements for
amusement rides to operate in the State of Florida. DACS estimates it will require 18 additional full-
time equivalent positions, $1,409,949 in recurring funds and $791,204 in nonrecurring funds to
implement the bill.66 The House proposed General Appropriations Act (GAA) provides four (4) full-
time equivalent positions, $320,176 in recurring funds and $185,064 in nonrecurring funds for this
regulatory program. Additional resources will be addressed in the Fiscal Year 2023-2024 GAA.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Additional costs may be incurred by new ride operators to produce a ride commissioning report. This
cost could vary greatly depending on the complexity of the ride. Also, the additional nondestructive
testing requirements may result in increased costs associated with the inspection by a professional
engineer executing the affidavit.67
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
66 Department of Agriculture and Consumer Services, Agency Analysis of 2023 House Bill CS 1241, p. 3 (April 6, 2023).
67 Id.
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to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties and
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill instructs DACS to create rules for operator training/retraining standards.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 29, 2023, the Regulatory Reform & Economic Development Subcommittee adopted one
amendment and reported the bill favorably as a committee substitute. The committee substitute:
Removes and modifies provisions to lessen the fiscal impact on DACS.
Removes duplicative provisions.
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 1241 2023
1 A bill to be entitled
2 An act relating to safety standards for amusement
3 rides; providing a short title; amending s. 616.242,
4 F.S.; defining and redefining terms; requiring
5 permanent amusement rides operated for the first time
6 in this state after a specified date to have a ride
7 commissioning and certification report on file with
8 the Department of Agriculture and Consumer Services
9 within a specified timeframe; revising the application
10 requirements for permanent and temporary amusement
11 ride permits; exempting from permit requirements
12 temporary amusement rides that meet certain
13 conditions; revising the annual nondestructive testing
14 requirements for amusement rides; requiring nonvisual
15 nondestructive testing to be used in certain
16 circumstances; revising the affidavit requirements for
17 nondestructive testing; requiring the department to
18 remove an amusement ride from service and take
19 appropriate administrative actions under certain
20 circumstances; removing an inspection exemption for
21 temporary amusement rides; authorizing the department
22 to conduct certain inspections upon request; revising
23 amusement ride inspection standards; revising the
24 reasons for which the department is authorized to
25 enter and inspect amusement rides; requiring the
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26 department to prepare a written report of each
27 investigation it conducts; revising the circumstances
28 under which the owner or manager of an amusement ride
29 is required to report an accident and under which the
30 department may impound an amusement ride involved in
31 an accident; requiring daily owner or manager
32 amusement ride inspections to be recorded at the time
33 of inspection; requiring the department to establish
34 by rule minimum amusement ride training and retraining
35 standards; revising training requirements; revising
36 circumstances under which an amusement ride may be
37 considered an immediate serious danger to the public;
38 providing an effective date.
39
40 WHEREAS, on March 24, 2022, Tyre Sampson, a 14-year-old boy
41 visiting this state from Missouri, fell to his death from the
42 Eagle Drop Tower in Orlando, and
43 WHEREAS, after the accident, Department of Agriculture and
44 Consumer Services inspectors performed multiple onsite
45 inspections of the tower and its components and contracted with
46 a third party to conduct a failure analysis assessment of the
47 tower, and
48 WHEREAS, the investigators concluded that changes made to
49 the ride by the ride operators after initial installation
50 contributed to Tyre Sampson's death, and
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51 WHEREAS, the proposed changes made by this act are
52 necessary to address the safety problems discovered during the
53 department's investigation, NOW, THEREFORE,
54
55 Be It Enacted by the Legislature of the State of Florida:
56
57 Section 1. This act may be cited as the "Tyre Sampson
58 Act."
59 Section 2. Paragraphs (r) through (u) of subsection (3) of
60 section 616.242, Florida Statutes, are redesignated as
61 paragraphs (s) through (v), respectively, paragraph (h) of
62 subsection (3), paragraph (b) of subsection (5), paragraph (b)
63 and present paragraph (f) of subsection (6), subsection (7),
64 paragraph (a) of subsection (8), paragraph (b) of sub section
65 (11), subsections (12) and (14), paragraphs (a) and (c) of
66 subsection (15), and subsections (16), (17), and (19) of that
67 section are amended, and a new paragraph (r) is added to
68 subsection (3) and a new paragraph (f) is added to subsection
69 (6) of that section, to read:
70 616.242 Safety standards for amusement rides.—
71 (3) DEFINITIONS.—As used in this section, the term:
72 (h) "Major modification" means any change in the
73 structural characteristics, or operational characteristics, or
74 safety systems of an amusement ride which will alter its
75 performance or settings from those that specified in the
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76 manufacturer's design criteria or operator's manual.
77 (r) "Ride commissioning and certification report" means a
78 commissioning and certification report by the ride manufacturer
79 which certifies that the ride has been designed and manufactured
80 in conformance with the manufacturer's design criteria,
81 standards referenced in this section, and rules adopted by the
82 department.
83 (5) PERMANENT AMUSEMENT RIDE ANNUAL PERMIT.—
84 (b) To apply for an annual permit, an owner or manager
85 must submit to the department a written application on a form
86 prescribed by department rule, which must include all of the
87 following:
88 1. The legal name, address, e-mail address, and primary
89 place of business of the owner or manager, as applicable.
90 2. A description, manufacturer's name, serial number,
91 model number, and, if previously assigned, the United States
92 Amusement Identification Number of the amusement ride.
93 3. A valid certificate of insurance for each amusement
94 ride.
95 4. If required under subsection (7), An annual affidavit
96 of compliance and nondestructive testing certifying that the
97 amusement ride was inspected in person by the affiant and that
98 the amusement ride is in general conformance with the
99 requirements of this section and all applicable department
100 rules. The affidavit must have been executed by a professional
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101 engineer or a qualified inspector within the last calendar year.
102 5. The owner or manager shall, At no cost to the
103 department, provide the department an electronic copy of the
104 manufacturer's current recommended operating instructions, the
105 owner's operating fact sheet, and any written bulletins
106 concerning the safety, operation, or maintenance of the
107 amusement ride.
108 6. Beginning July 1, 2023, a ride commissioning and
109 certification report for each permanent amusement ride operated
110 for the first time in this state after July 1, 2023.
111 (6) TEMPORARY AMUSEMENT RIDE PERMIT.—
112 (b) To apply for a permit, an owner or manager must submit
113 to the department a written application on a form prescribed by
114 department rule. The written application, which must include all
115 of the following:
116 1. The legal name, address, e-mail address, and primary
117 place of business of the owner or manager, as applicable.
118 2. A description, manufacturer's name, serial number,
119 model number, and, if previously assigned, the United States
120 Amusement Identification Number of the amusement ride.
121 3. A valid certificate of insurance for each amusement
122 ride.
123 4. If required under subsection (7), An affidavit of
124 compliance and nondestructive testing certifying that the
125 amusement ride was inspected in person by the affiant and that
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126 the amusement ride is in general conformance with the
127 requirements of this section and all applicable department
128 rules. The affidavit must be executed by a professional engineer
129 or a qualified inspector.
130 5. The owner or manager shall, At no cost to the
131 department, provide the department an electronic copy of the
132 manufacturer's current recommended operating instructions, the
133 operating fact sheet, and any written bulletins concerning the
134 safety, operation, or maintenance of the amusement ride.
135 (f) A temporary amusement ride is exempt from the required
136 permit if it is:
137 1. Used at a private event and was issued a permit within
138 the preceding 6 months; or
139 2. A kiddie ride used at a public event, provided that not
140 more than three amusement rides are at the event, the kiddie
141 rides at the event do not exceed a capacity of 12 persons, and
142 the kiddie ride passed a department inspection and was issued a
143 permit within the preceding 6 months. Unless the capacity of the
144 ride has been determined and specified by the manufacturer, the
145 department shall determine the capacity of the kiddie ride by
146 rule. An owner or a manager of a kiddie ride operating under
147 this exemption is responsible for ensuring that not more than
148 three amusement rides are operated at the event.
149 (g)(f) The permit must be displayed in an accessible
150 location on the amusement ride.
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151 (7) NONDESTRUCTIVE TESTING; ANNUAL AFFIDAVIT; EXEMPTIONS. —
152 (a) Except as provided in paragraph (d), An owner or
153 manager may not operate an amusement ride unless the owner or
154 manager at all times has a current affidavit of nondestruc tive
155 testing from a professional engineer or qualified inspector that
156 the amusement ride has undergone nondestructive testing to
157 verify the integrity of all components for metal fatigue at
158 least annually. The nondestructive testing for metal fatigue
159 must be conducted more often than annually if required by any
160 rule adopted under this section, by the manufacturer of the
161 amusement ride, or by the professional engineer or qualified
162 inspector executing the affidavit of nondestructive testing. The
163 nondestructive testing for metal fatigue must consist at least
164 of visual nondestructive testing, as well as nonvisual
165 nondestructive testing for metal fatigue, which must be
166 conducted on the components of the amusement ride as required by
167 any rule adopted under this section, by the manufacturer of the
168 amusement ride, or by the professional engineer or qualified
169 inspector executing the affidavit of nondestructive testing.
170 (b) Nonvisual nondestructive testing must be used to
171 verify the integrity of components that, due to their design,
172 location, installation, or a combination thereof, cannot be
173 adequately evaluated by other means.
174 (c)(b) Nondestructive testing testings must be performed
175 by a technician who meets the requirements prescribed by
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176 department rule.
177 (d)(c) An affidavit of nondestructive testing, on a form
178 prescribed by department rule, must state, at a minimum, all of
179 the following:
180 1. That the amusement ride was inspected in person by the
181 affiant.
182 2. That all of the manufacturer's nondestructive testing
183 requirements and recommendations are current.
184 3. That the nondestructive testing was performed by a
185 qualified nondestructive testing technician.
186 4. The components of the amusement ride for which the
187 manufacturer has recommended or required nondestructive testing.
188 5. The type of nondestructive testing required or
189 recommended by the manufacturer.
190 6. The frequency of the nondestructive testing required or
191 recommended by the manufacturer.
192 7. The components of the amusement ride for which the
193 affiant, in addition to the manufacturer's requirements and
194 recommendations, has recommended or required nondestructive
195 testing.
196 8. The type of nondestructive testing required or
197 recommended by the affiant in addition to the manufacturer's
198 requirements and recommendations. If the affiant does not
199 require or recommend additional nondestructive testing, the
200 affiant must affirm that the manufacturer's requirements are
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201 sufficient for the safe operation of the amusement ride .
202 9. The frequency of the nondestructive testing as required
203 or recommended by the affiant.
204 10. That visual nondestructive testing is adequate for the
205 amusement ride to be in general conformance with the
206 requirements of this section and all applicable rules, only if
207 only visual nondestructive testing is required or recommended by
208 the manufacturer or the affiant.
209 11. That the amusement ride is in conformance with the
210 requirements of this section and all applicable department
211 rules.
212 12. Whether the amusement ride has undergone a major
213 modification and, if so, the name of the manager, owner, or
214 operator who authorized the modification and the date the
215 modification took place.
216 13. That the amusement ride and its components are in
217 conformance with the service life specified by the manufacturer.
218 (e)(d) Nonvisual nondestructive testing is not required
219 for fun houses, houses of mirrors, haunted houses, mazes, wave
220 pools, wave-making devices, kiddie pools, slides that are fully
221 supported by an earthen mound, nonmotorized playground equipment
222 that requires a manager, or lazy-river-type nonmotorized
223 floating carriers propelled by water.
224 (8) DEPARTMENT INSPECTIONS.—
225 (a) In order to obtain an annual or a temporary amusement
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226 ride permit, an amusement ride must be inspected by the
227 department.
228 1. A temporary amusement ride is exempt from the required
229 inspection if it is:
230 a. Used at a private event;
231 b. A simulator, the capacity of which does not exceed 16
232 persons; or
233 c. A kiddie ride used at a public event, provided that not
234 more than three amusement rides are at the event, the kiddie
235 rides at the event do not exceed a capacity of 12 persons, and
236 the kiddie ride passed a department inspection and was issued a
237 permit within the preceding 6 months. The capacity of a kiddie
238 ride shall be determined by department rule, unless the capacity
239 of the ride has been determined and specified by the
240 manufacturer. Any owner or manager of a kiddie ride operating
241 under this exemption is responsible for ensuring that not more
242 than three amusement rides are operated at the event.
243 2. The department shall inspect permanent amusement rides
244 6 months after the issuance of the annual permit. The required
245 inspection may be waived for a permanent amusement ride if it
246 was inspected and certified by an accredited trade organization
247 as defined by department rule.
248 (11) EXEMPTIONS.—
249 (b) All of the following are exempt from subsections (5),
250 (6), (8), and (9), but may be inspected by the department upon
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251 request, following a complaint or pursuant to an accident that
252 is required to be reported under subsection (15), and such
253 exemption may be removed if the exempted amusement ride is found
254 to have been operating in a manner or circumstance that presents
255 a risk or resulted in a serious injury to patrons:
256 1. Museums or other institutions principally devoted to
257 the exhibition of products of agriculture, industry, education,
258 science, religion, or the arts.
259 2. Conventions or trade shows for the sale or exhibit of
260 amusement rides if there are a minimum of 15 amusement rides on
261 display or exhibition and if any operation of such amusement
262 rides is limited to the registered attendees of the convention
263 or trade show.
264 3. Nonmotorized playground equipment that is not requir ed
265 to have a manager.
266 4. Coin-actuated amusement rides designed to be operated
267 by depositing coins, tokens, credit cards, debit cards, bills,
268 or other cash money and which are not required to have a
269 manager, and which have a capacity of six persons or le ss.
270 5. Facilities described in s. 549.09(1)(a) when such
271 facilities are operating cars, trucks, or motorcycles only.
272 6. Battery-powered cars or other vehicles that are
273 designed to be operated by children 7 years of age or under and
274 that cannot exceed a speed of 4 miles per hour.
275 7. Mechanically driven vehicles that pull train cars,
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276 carts, wagons, or other similar vehicles, that are not confined
277 to a metal track or confined to an area but are steered by an
278 operator and do not exceed a speed of 4 miles per hour.
279 8. A water-related amusement ride operated by a business
280 licensed under chapter 509 if the water-related amusement ride
281 is an incidental amenity and the operating business is not
282 primarily engaged in providing amusement, pleasure, thrills, or
283 excitement and does not offer day rates.
284 9. An amusement ride at a private, membership-only
285 facility if the amusement ride is an incidental amenity and the
286 facility is not open to the general public; is not primarily
287 engaged in providing amusement, pleasure, thrills, or
288 excitement; and does not offer day rates.
289 10. A nonprofit permanent facility registered under
290 chapter 496 which is not open to the general public.
291 (12) INSPECTION STANDARDS.—An amusement ride must conform
292 to all of the following standards:
293 (a) All mechanical, structural, and electrical components
294 that affect patron safety must be in good working order.
295 (b) All control devices, speed-limiting devices, brakes,
296 and safety equipment must be in good working order.
297 (c) Parts must be properly aligned and may not be bent,
298 distorted, cut, or otherwise injured to force a fit. Parts
299 requiring lubrication must be lubricated in the course of
300 assembly. Fastening and locking devices must be installed when
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301 required for safe operation.
302 (d) The proper positioning, measurements, and
303 demonstration of proper patron loading procedures related to
304 patron safety restraint systems must be provided to the
305 department upon request.
306 (e)(d) An amusement ride must be placed or secured with
307 blocking, cribbing, outriggers, guys, or other means so as to be
308 stable under all operating conditions.
309 (f)(e) Areas in which patrons may be endangered by the
310 operation of an amusement ride must be fenced, barricaded, or
311 otherwise effectively guarded against inadvertent contact.
312 (g)(f) Machinery used in or with an amusement ride must be
313 enclosed, barricaded, or otherwise effectively guarded against
314 inadvertent contact.
315 (h)(g) An amusement ride powered so as to be capable of
316 exceeding its maximum safe operating speed must be provided with
317 a maximum-speed-limiting device.
318 (i)(h) The interior and exterior parts of all patron-
319 carrying amusement rides with which a patron may come in contact
320 must be smooth and rounded and free from sharp, rough, or
321 splintered edges and corners, and from projecting studs, bolts,
322 and screws or other projections that might cause injury.
323 (j)(i) Signs that advise or warn patrons of age
324 restrictions, size restrictions, health restrictions, weight
325 limitations, or any other special consideration or use
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326 restrictions, or lack thereof, required or recommended for the
327 amusement ride by the manufacturer must be prominently displayed
328 at the patron entrance of each amusement ride. If such rider
329 restrictions are not provided by the manufacturer, the owner or
330 manager must provide the department with documentation from the
331 manufacturer or a licensed professional engineer stating that
332 such rider restrictions are not necessary for the safe operation
333 of the amusement ride.
334 (k)(j) All amusement rides presented for inspection as
335 ready for operation or in operation must comply with this
336 section and department rule.
337 (l)(k) A sign containing the toll-free number of the
338 department and informing patrons that they may contact the
339 department with complaints or concerns regarding the safe
340 operation of amusement rides must be posted in a manner
341 conspicuous to the public at each entrance of an a temporary
342 amusement ride facility. The department shall prescribe by rule
343 specifications for such signs.
344 (14) ENTRY FOR INSPECTION OR INVESTIGATION.—
345 (a) Upon presentation of identification, an authorized
346 employee of the department may enter unannounced and inspect
347 amusement rides at any time and in a reasonable manner and has
348 the right to question any owner, operator, or manager; to
349 inspect, investigate, photograph, and sample all pertinent
350 places, areas, and devices and review required documentation;
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351 and to conduct or have conducted all appropriate tests,
352 including nondestructive testing. The department may impose fees
353 for unannounced inspections and recover the cost of tests
354 authorized by this subsection.
355 (b) The department shall prepare a written report of each
356 investigation it conducts.
357 (15) REPORTING AND INVESTIGATION OF ACCIDENTS AND DEFECTS;
358 IMPOUNDMENTS.—
359 (a) Any accident of which the owner or manager has
360 knowledge or, through the exercise of reasonable diligence
361 should have knowledge, and for which a patron seeks treatment at
362 is transported to a hospital or an urgent care center, as those
363 terms are defined in chapter 395, must be reported by the owner
364 or manager to the department by telephone within 4 hours after
365 the occurrence of the accident or after notification by the
366 patron and must be followed up by a written report to the
367 department within 24 hours after the occurrence of the accident
368 or after notification by the patron.
369 (c) The department may impound an amusement ride involved
370 in an accident for which a patron seeks treatment at is
371 transported to a hospital or an urgent care center as those
372 terms are defined in chapter 395 or which has a mechanical,
373 structural, or electrical defect affecting patron safety; may
374 impound any other amusement ride of a similar make and model or
375 with similar operating characteristics; and may perform all
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376 necessary tests to determine the cause of the accident or the
377 mechanical, structural, or electrical defect or to determine the
378 safety of the amusement ride and any other amusement ride of a
379 similar make and model or with similar operating
380 characteristics. The cost of impounding the amusement ride and
381 performing the necessary tests must be borne by the owner of the
382 amusement ride.
383 (16) INSPECTION BY OWNER OR MANAGER.—Before opening on
384 each day of operation and before any inspection by the
385 department, the owner or manager of an amusement ride must
386 inspect and test each amusement ride to ensure compliance with
387 this section. Each inspection must be recorded at the time of
388 inspection on a form prescribed by department rule and signed by
389 the person who conducted the inspection. In lieu of the form
390 prescribed by department rule, the owner or manager may request
391 approval of an alternative form that includes, at a minimum, the
392 information required on the form prescribed by department rule.
393 Inspection records of the last 14 daily inspections must be kept
394 on site by the owner or manager and made immediately available
395 to the department upon request.
396 (17) TRAINING OF EMPLOYEES.—
397 (a) The department shall establish by rule minimum
398 training and retraining standards and the frequency of employee
399 training for all amusement rides.
400 (b) The owner or manager of an amusement ride shall
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401 maintain a record of employee training for each employee
402 authorized to operate, assemble, disassemble, transport, or
403 conduct maintenance on an amusement ride on a form prescribed by
404 department rule. In lieu of the form prescribed by department
405 rule, the owner or manager may request approval of an
406 alternative form that includes, at a minimum, the information
407 required on the form prescribed by department rule. The training
408 record must be kept on site by the owner or manager and made
409 immediately available to the department upon request. Training
410 may not be conducted when an amusement ride is open to the
411 public unless the training is conducted under the supervision of
412 an employee who is trained in the operation of that ride. The
413 owner or manager shall immediately document all training
414 following each training session and certify that each employee
415 is trained, as required by this section and any rules adopted
416 thereunder, on the amusement ride for which the employee is
417 responsible.
418 (19) IMMEDIATE FINAL ORDERS.—
419 (a) An amusement ride that fails to meet the requirements
420 of this section or pass the inspections required by this
421 section; that is involved in an accident for which a patron
422 seeks treatment at is transported to a hospital or an urgent
423 care center as those terms are defined in chapter 395; or that
424 has a mechanical, structural, or electrical defect that affects
425 patron safety may be considered an immediate serious danger to
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426 the public health, safety, and welfare and, upon issuance of an
427 immediate final order prohibiting patron use of the ride, may
428 not be operated for patron use until it has passed a subsequent
429 inspection by or at the direction of the department.
430 (b) An amusement ride of a similar make and model or with
431 similar operating characteristics to an amusement ride described
432 in paragraph (a) may be considered an immediate serious danger
433 to the public health, safety, and welfare and, upon issuance of
434 an immediate final order prohibiting patron use of the ride, may
435 not be operated for patron use until it has passed a subsequent
436 inspection by or at the direction of the department.
437 Section 3. This act shall take effect July 1, 2023.
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COMMERCE COMMITTEE
CS/HB 1241 by Rep. Bracy Davis
Safety Standards for Amusement Rides
AMENDMENT SUMMARY
April 24, 2023
Amendment 1 by Rep. Botana (lines 157-217):
• Clarifies that nondestructive testing needs to be done as recommended or specified by
the manufacturer.
• Clarifies that the service life of the ride and its components must be checked to
determine whether the ride and its parts are in conformance, if the service life is
provided by the manufacturer.
Amendment 2 by Rep. Botana (lines 305-333):
• Clarifies that certain procedures related to patron safety restraint systems must be
provided to the department upon request if such procedures are provided by the
manufacturer.
• Removes a bill provision that would have required an owner or manager to take certain
steps even if an amusement ride manufacturer did not provide rider restrictions for the
safe operation of the ride.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1241 (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 Botana offered the following:
3
4 Amendment
5 Remove lines 157-217 and insert:
6 verify the integrity of all components that are recommended or
7 specified by the manufacturer or metal fatigue at least annually.
8 The nondestructive testing for metal fatigue must be conducted
9 more often than annually if required by any rule adopted under
10 this section, by the manufacturer of the amusement ride, or by
11 the professional engineer or qualified inspector executing the
12 affidavit of nondestructive testing. The nondestructive testing
13 for metal fatigue must consist at least of visual nondestructive
14 testing, as well as nonvisual nondestructive testing for metal
15 fatigue, which must be conducted on the components of the
16 amusement ride as required by any rule adopted under this
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1241 (2023)
Amendment No.1
17 section, by the manufacturer of the amusement ride, or by the
18 professional engineer or qualified inspector executing the
19 affidavit of nondestructive testing.
20 (b) When specified by the manufacturer, nonvisual
21 nondestructive testing must be used to verify the integrity of
22 components that, due to their design, location, installation, or
23 a combination thereof, cannot be adequately evaluated by other
24 means.
25 (c)(b) Nondestructive testing testings must be performed
26 by a technician who meets the requirements prescribed by
27 department rule.
28 (d)(c) An affidavit of nondestructive testing, on a form
29 prescribed by department rule, must state, at a minimum, all of
30 the following:
31 1. That the amusement ride was inspected in person by the
32 affiant.
33 2. That all of the manufacturer's nondestructive testing
34 requirements and recommendations are current.
35 3. That the nondestructive testing was performed by a
36 qualified nondestructive testing technician.
37 4. The components of the amusement ride for which the
38 manufacturer has recommended or required nondestructive testing.
39 5. The type of nondestructive testing required or
40 recommended by the manufacturer.
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1241 (2023)
Amendment No.1
41 6. The frequency of the nondestructive testing required or
42 recommended by the manufacturer.
43 7. The components of the amusement ride for which the
44 affiant, in addition to the manufacturer's requirements and
45 recommendations, has recommended or required nondestructive
46 testing.
47 8. The type of nondestructive testing required or
48 recommended by the affiant in addition to the manufacturer's
49 requirements and recommendations. If the affiant does not
50 require or recommend additional nondestructive testing, the
51 affiant must affirm that the manufacturer's requirements are
52 sufficient for the safe operation of the amusement ride .
53 9. The frequency of the nondestructive testing as required
54 or recommended by the affiant.
55 10. That visual nondestructive testing is adequate for the
56 amusement ride to be in general conformance with the
57 requirements of this section and all applicable rules, only if
58 only visual nondestructive testing is required or recommended by
59 the manufacturer or the affiant.
60 11. That the amusement ride is in conformance with the
61 requirements of this section and all applicable department
62 rules.
63 12. Whether the amusement ride has undergone a major
64 modification and, if so, the name of the manager, owner, or
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1241 (2023)
Amendment No.1
65 operator who authorized the modification and the date the
66 modification took place.
67 13. That the amusement ride and its components are in
68 conformance with the service life, if the manufacturer has
69 provided a service life for such ride and its components.
70
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1241 (2023)
Amendment No.2
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/O OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Commerce Committee
2 Representative Botana offered the following:
3
4 Amendment
5 Remove lines 305-333 and insert:
6 department upon request if provided by the manufacturer.
7 (e)(d) An amusement ride must be placed or secured with
8 blocking, cribbing, outriggers, guys, or other means so as to be
9 stable under all operating conditions.
10 (f)(e) Areas in which patrons may be endangered by the
11 operation of an amusement ride must be fenced, barricaded, or
12 otherwise effectively guarded against inadvertent contact.
13 (g)(f) Machinery used in or with an amusement ride must be
14 enclosed, barricaded, or otherwise effectively guarded against
15 inadvertent contact.
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1241 (2023)
Amendment No.2
16 (h)(g) An amusement ride powered so as to be capable of
17 exceeding its maximum safe operating speed must be provided with
18 a maximum-speed-limiting device.
19 (i)(h) The interior and exterior parts of all patron-
20 carrying amusement rides with which a patron may come in contact
21 must be smooth and rounded and free from sharp, rough, or
22 splintered edges and corners, and from projecting studs, bolts,
23 and screws or other projections that might cause injury.
24 (j)(i) Signs that advise or warn patrons of age
25 restrictions, size restrictions, health restrictions, weight
26 limitations, or any other special consideration or use
27 restrictions, or lack thereof, required or recommended for the
28 amusement ride by the manufacturer must be prominently displayed
29 at the patron entrance of each amusement ride.
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Page 2 of 2
HB 1333
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 1333 Interstate-Mobility and Universal-Recognition Occupational Licensing Act
SPONSOR(S): Koster, Maney, Salzman
TIED BILLS: IDEN./SIM. BILLS: CS/SB 1364
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY
CHIEF
1) Regulatory Reform & Economic Development 11 Y, 0 N Wright Anstead
Subcommittee
2) State Administration & Technology 15 Y, 0 N Helpling Topp
Appropriations Subcommittee
3) Commerce Committee Wright Hamon
SUMMARY ANALYSIS
An occupational or professional license is a form of government regulation that requires individuals to obtain
authorization in order to perform certain types of work, such as nurses, contractors, and cosmetologists.
Florida’s Sunrise Act prohibits state regulation of occupations and professions that unnecessarily restrict entry
into the profession or occupation and the Act requires that any regulation only be adopted if it is necessary to
protect the health, safety, and welfare of the public.
The bill requires Florida licensing boards that issue occupational licenses or government certifications to
individuals under ch. 455, F.S., relating to the regulations of professions by the Department of Business and
Professional Regulation (DBPR), or ch. 456, F.S., relating to the regulation of professions by the Department of
Health (DOH), to issue an occupational license or government certification (universal license) to eligible
applicants, under certain circumstances (universal licensing requirement).
Applicants may seek a universal license through one of three pathways described in the bill. An applicant from
another state is automatically approved under the universal licensing scheme if:
The applicant is licensed by another licensing entity or state;
The applicant has certain work experience in another state or in the military; or
The applicant has a private certification with work experience in a non-licensing state or the military.
The bill provides that an applicant with a valid occupational license or certification in good standing, or who
otherwise meets the requirements for an occupational license for a lawful occupation, is presumed to be
qualified for the license and must be issued an occupational license or government certification by the
appropriate Florida licensing board.
The bill provides that during a declared state of emergency, the Governor may order the recognition of
occupational licenses from outside Florida or from a foreign country as if the licenses were issued in Florida,
may expand any occupation license scope of practice, and authorize licensees to provide services in Florida in
person, telephonically, or by other means for the duration of the emergency.
The bill will have an indeterminate fiscal impact on state and local governments. 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:
Current Situation
Occupational Licensing
An occupational or professional license is a form of government regulation that requires individuals who
want to perform certain types of work, such as nurses, contractors, and cosmetologists, to obtain
governmental authorization to work in a specific field.1
An estimated 23.5 percent of the civilian labor force nationwide has an occupational license. 2 Various
governmental entities and agencies in Florida license and regulate such individuals practicing in a wide
range of professions, including:3
Department of Business and Professional Regulation (DBPR),
Department of Health (DOH),
Department of Financial Services (DFS),
Department of Agriculture and Consumer Services (DACS),
Florida Supreme Court (FSC),
Department of Environmental Protection (DEP),
Agency for Healthcare Administration (AHCA),
Department of Children and Families (DCF),
Department of Elder Affairs (DEA),
Department of Highway Safety and Motor Vehicles (DHSMV), and
Office of Financial Regulation (OFR).
In the 1950s, less than five percent of U.S. workers were required to have a license to do their jobs.
Since then, the number of U.S. workers required to have a license has risen five-fold to more than one-
quarter, with most of these workers being licensed by states. Almost two-thirds of this change stems
from an increase in the number of professions that require a license. The number of licensed workers is
even higher in Florida, with an estimated 28.7 percent of the workforce being licensed by the state. 4
In 2015, the White House published a report on the current state of occupational licensing in the nation.
The report found that when designed and implemented carefully, requiring occupational licenses offers
important health and safety protections to consumers as well as benefits to workers. However, the
report also found that too often licensing requirements are inconsistent, inefficient, arbitrary, and there
is evidence that the current license regime in the U.S. raises the price of goods and services, restricts
employment opportunities, and makes it more difficult for workers to take their skills across state lines. 5
The report stated that because occupations are diverse in their tasks, designing and implementing
successful occupational license regulations often requires a tailored approach. However, there are a
number of common factors that policymakers should consider when contemplating enacting, revising,
or repealing an occupational regulation. Policymakers should: 6
Ensure that restrictions are closely targeted to protecting public health and safety, and are not
overly burdensome;
Facilitate a careful consideration of licensure’s costs and benefits; and
1 The White House, Occupational Licensing: A Framework for Policymakers, 6 (July 2015)
https://obamawhitehouse.archives.gov/sites/default/files/docs/licensing_report_final_nonembargo.pdf (last visited on Mar 20, 2023).
2 Bureau of Labor Statistics, Labor Force Statistics from the Current Population Survey, 2021 , Certification and licensing status of the
civilian noninstitutional population 16 years and over by employment status (bls.gov), (last visited on Mar. 20, 2023).
3 Chs. 20, 25, F.S.
4 White House supra note 1 at 3 & 24.
5 Id.
6 Id. at 41-43
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Work to reduce licensing’s barriers to mobility.
Policymakers can facilitate a careful consideration of licensure costs and benefits through both sunrise
and sunset reviews. However, evidence suggests that sunrise reviews are more successful at limiting
the growth of licensing since removing a license is much more difficult than enacting one. Additionally,
state regulators suggested that sunrise reviews may be more effective than sunset reviews. 7
Sunrise Review
Generally, a sunrise review is a formal process where a legislature scrutinizes legislation proposing to
regulate an unregulated profession or occupation by requiring a cost-benefit analysis before the
legislation is enacted. Most sunrise reviews require the proponents of the regulation to outline the
potential impacts, costs, and benefits of the proposed regulation. Some states require the proponents
of the regulation to provide certain information to a legislative committee or a state agency for analysis
and evaluation, which is then provided to the legislature. Policymakers can review the information
provided before moving forward with the legislation.8
Currently 14 states, including Florida, have sunrise reviews.9 However, states vary widely in how
independently and thoroughly they administer sunrise reviews. Colorado requires proponents of
regulation to submit the proposed regulation along with the potential impacts, costs, and benefits to the
Colorado Department of Regulatory Agencies for analysis and evaluation. 10 Minnesota requires
proponents of regulation to file a report outlining the regulation’s potential impacts, costs, and benefits
with the legislature within 15 days of the bill being introduced.11 Maine requires sunrise reviews for
legislation regulating an unregulated profession or occupation and legislation that substantially expands
regulation of an already regulated profession or occupation. 12 Florida currently requires proponents of
regulation to file information about the regulation’s potential impacts, costs, and benefits upon
request.13
Florida’s Sunrise Act
Section 11.62, F.S., is Florida’s sunrise review, which is called the Sunrise Act. The Sunrise Act states
that regulation should not be adopted unless it is:
Necessary to protect the public health, safety, or welfare from significant and discernible harm
or damage;
Exercised only to the extent necessary to prevent the harm; and
Limited so as not to unnecessarily restrict entry into the practice of the profession or adversely
affect public access to the professional services.
In determining whether to regulate a profession or occupation, the Sunrise Act requires the Legislature
to consider the following:
Whether the unregulated practice of the profession or occupation will substantially harm or
endanger the public health, safety, or welfare, and whether the potential for harm is
recognizable and not remote;
Whether the practice of the profession or occupation requires specialized skill or training and
whether that skill or training is readily measurable or quantifiable so that examination or training
requirements would reasonably assure initial and continuing professional or occupational ability;
7 Id. at 42, 48-49.
8 Id. at 48; Iris Hentze, Improving Occupational Licensing with Sunrise and Sunset Reviews, National Conference of State
Legislatures, (July 2018), https://www.ncsl.org/labor-and-employment/sunset-and-sunrise (last visited Mar. 20, 2023); Council on
Licensure & Regulation, Sunrise, Sunset and State Agency Audits, https://clear.wildapricot.org/page-486181 (last visited Mar. 20,
2023).
9 Council on Licensure & Regulation supra note 5.
10 Colo. Rev. Stat. § 24-34-104.1.
11 Minn. Stat. § 214.002.
12 ME. Rev. Stat. Ann. Tit. 32-1A, § 60-J.
13 S. 11.62(4), F.S.
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Whether the regulation will have an unreasonable effect on job creation or job retention in the
state or will place unreasonable restrictions on the ability of individuals who seek to practice or
who are practicing a given profession or occupation to find employment;
Whether the public is or can be effectively protected by other means; and
Whether the overall cost-effectiveness and economic impact of the proposed regulation,
including the indirect costs to consumers, will be favorable.
The Sunrise Act requires proponents of legislation that propose new regulation on professions or
occupations to provide the following information, upon request, by the agency proposed to have
jurisdiction or the legislative committee to which the legislation is referred, to document the need for
regulation:
The number of individuals or businesses that would be subject to the regulation;
The name of each association that represents members of the profession or occupation,
together with a copy of its codes of ethics or conduct;
Documentation of the nature and extent of the harm to the public caused by the unregulated
practice of the profession or occupation, including a description of any complaints that have
been lodged against persons who have practiced the profession or occupation in this state
during the preceding three years;
A list of states that regulate the profession or occupation, and the dates of enactment of each
law providing for such regulation and a copy of each law;
A list and description of state and federal laws that have been enacted to protect the public with
respect to the profession or occupation and a statement of the reasons why these laws have not
proven adequate to protect the public;
A description of the voluntary efforts made by members of the profession or occupation to
protect the public and a statement of the reasons why these efforts are not adequate to protect
the public;
A copy of any federal legislation mandating regulation;
An explanation of the reasons why other types of less restrictive regulation would not effectively
protect the public;
The cost, availability, and appropriateness of training and examination requirements;
The cost of regulation, including the indirect cost to consumers, and the method proposed to
finance the regulation;
The cost imposed on applicants or practitioners or on employers of applicants or practitioners as
a result of the regulation;
The details of any previous efforts in this state to implement regulation of the profession or
occupation; and
Any other information the agency or the committee considers relevant to the analysis of the
proposed legislation.
The Sunrise Act requires the agency proposed to have jurisdiction over the regulation to provide the
Legislature with the following information:
The resources required to implement and enforce the regulation;
The technical sufficiency of the proposal, including its consistency with the regulation of other
professions; and
Any alternatives that may result in less restrictive or more cost-effective regulation.
In determining whether to recommend regulation, the legislative committee reviewing the proposal must
assess whether the proposed regulation is:
Justified based on the statutory criteria and the information provided by both the proponents of
regulation and the agency responsible for its implementation;
The least restrictive and most cost-effective regulatory scheme necessary to protect the public;
and
Technically sufficient and consistent with the regulation of other professions under existing law.
Department of Business and Professional Regulation
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The Florida Department of Business and Professional Regulation (DBPR), through 11 divisions,
regulates and licenses businesses and professionals in Florida. The divisions established under DBPR
include:
• The Division of Administration;
• The Division of Alcoholic Beverages and Tobacco;
• The Division of Certified Public Accounting;
• The Division of Drugs, Devices, and Cosmetics;
• The Division of Florida Condominiums, Timeshares, and Mobile Homes;
• The Division of Hotels and Restaurants;
• The Division of Professions;
• The Division of Real Estate;
• The Division of Regulation;
• The Division of Technology; and
• The Division of Service Operations.14
The Division of Professions (Professions) licenses and regulates more than 434,000 professionals
through the following professional boards and programs:
• Board of Architecture and Interior Design,
• Asbestos Licensing Unit,
• Athlete Agents,
• Board of Auctioneers,
• Barbers’ Board,
• Building Code Administrators and Inspectors Board,
• Regulatory Council of Community Association Managers,
• Construction Industry Licensing Board,
• Board of Cosmetology,
• Electrical Contractors’ Licensing Board,
• Board of Employee Leasing Companies,
• Home Inspectors,
• Board of Landscape Architecture,
• Mold-Related Services,
• Board of Pilot Commissioners,
• Board of Professional Geologists,
• Talent Agencies,
• Board of Veterinary Medicine, and
• Florida Board of Professional Engineers.15
The Division of Regulation is the enforcement authority for the Florida Athletic Commission, Farm Labor
Program, Child Labor Program, and any professional boards and programs housed within
Professions.16 To ensure compliance with applicable laws and rules by those professions and related
businesses, the division investigates complaints, utilizes compliance mechanisms, and performs
inspections.17
The Division of Certified Public Accounting is responsible for the regulation of certified public
accountants and accounting firms in the state.18
The Division of Real Estate is responsible for the regulation of real estate sales associates, brokers,
and appraisers, in conjunction with the Florida Real Estate Commission and the Florida Real Estate
Appraisal Board.19
14 s. 20.165, F.S.
15 Florida Department of Business and Professional Regulation, Division of Professions, http://www.myfloridalicense.com/dbpr/pro/
index.html (last visited Feb. 20, 2017).
16 Except the Board of Architecture and Interior Design, and the Florida Board of Professional Engineers.
17 Florida Department of Business and Professional Regulation, Division of Regulation,
http://www.myfloridalicense.com/DBPR/division-of-regulation/ (last visited Mar. 12, 2023).
18 S. 473.3035, F.S.; Florida Department of Business and Professional Regulation, Certified Public Accounting, Certified Public
Accounting – MyFloridaLicense.com (last visited Mar. 12, 2023).
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Each profession is governed by an individual practice act and by ch. 455, F.S., which provides the
general powers of DBPR and sets forth the procedural and administrative framework for all of the
professional boards housed under DBPR.20 Chapter 455, F.S., applies to the regulation of professions
constituting “any activity, occupation, profession, or vocation regulated by DBPR in the Divisions of
Certified Public Accounting, Professions, Real Estate, and Regulation.” 21
In Fiscal Year 2021-2022, DBPR’s Division of Professions had 937,960 active licensees (of which
38,541 were licensed accountants; 66,936 were licensed engineers, and 345,026 were real estate-
related licensees).22 Such licenses have statutory procedures in places to allow out-of-state licensees
to obtain a Florida license.
In 2020, HB 1193,23 an omnibus license deregulation bill, was enacted, which instituted greater license
portability measures for the following DBPR licenses:
Veterinarians,
Construction contractors,
Electrical contractors,
Landscape architects,
Geologists,
Professional engineers,
Certified public accountants,
Home inspectors,
Building code professionals,
Cosmetologists, and
Barbers.
Locally Licensed Contractors
Chapter 489, F.S., relates to “contracting,” with part I addressing the licensure and regulation of
construction contracting, and part II addressing the licensure and regulation of electrical and alarm
system contracting. DBPR, through the Construction Industry Licensing Board and the Electrical
Contractors’ Licensing Board and under the Division of Professions, provide statewide licenses for
various construction and electrical contractors. Chapter 489, F.S., also allows local jurisdictions across
the state to locally license registered contractors to practice in their jurisdiction.24
Department of Health
The Department of Health (DOH) is created under the authority of s. 20.43, F.S., which outlines the
composition of the agency structure to include the Division of Medical Quality Assurance (MQA). MQA
is statutorily responsible for the following boards and professions established within the division:
The Board of Acupuncture, created under ch. 457, F.S.;
The Board of Medicine, created under ch. 458, F.S.;
The Board of Osteopathic Medicine, created under ch. 459, F.S.;
The Board of Chiropractic Medicine, created under ch. 460, F.S.;
The Board of Podiatric Medicine, created under ch. 461, F.S.;
Naturopathy, as provided under ch. 462, F.S.;
The Board of Optometry, created under ch. 463, F.S.;
The Board of Nursing, created under part I of ch. 464, F.S.;
19 S. 475.021, F.S.
20 S. 455.203, F.S.
21 S. 455.01(6), F.S.
22 See Department of Business and Professional Regulation, Annual Report, Fiscal Year 2021-2022, at 10, at
http://www.myfloridalicense.com/DBPR/os/documents/Division%20Annual%20Report%20FY%2021-22.pdf (last visited
Mar. 20, 2023).
23 Ch. 2020-125, L.O.F.
24 Ss. 489.117 and 489.131, F.S.
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Nursing assistants, as provided under part II of ch. 464, F.S.;
The Board of Pharmacy, created under ch. 465, F.S.;
The Board of Dentistry, created under ch. 466, F.S.;
Midwifery, as provided under ch. 467, F.S.;
The Board of Speech-Language Pathology and Audiology, created under part I of ch. 468, F.S.;
The Board of Nursing Home Administrators, created under part II of ch. 468, F.S.;
The Board of Occupational Therapy, created under part III of ch. 468, F.S.;
Respiratory therapy, as provided under part V of ch. 468, F.S.;
Dietetics and nutrition practice, as provided under part X of ch. 468, F.S.;
The Board of Athletic Training, created under part XIII of ch. 468, F.S.;
The Board of Orthotists and Prosthetists, created under part XIV of ch. 468, F.S.;
Electrolysis, as provided under ch. 478, F.S.;
The Board of Massage Therapy, created under ch. 480, F.S.;
The Board of Clinical Laboratory Personnel, created under part III of ch. 483, F.S.;
Medical physicists, as provided under part IV of ch. 483, F.S.;
The Board of Opticianry, created under part I of ch. 484, F.S.;
The Board of Hearing Aid Specialists, created under part II of ch. 484, F.S.;
The Board of Physical Therapy Practice, created under ch. 486, F.S.;
The Board of Psychology, created under ch. 490, F.S.;
School psychologists, as provided under ch. 490, F.S.;
The Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health
Counseling, created under ch. 491, F.S.; and
Emergency medical technicians and paramedics, as provided under part III of ch. 401, F.S.;
The DOH and the practitioner boards have different roles in the regulatory system. Boards establish
practice standards by rule, pursuant to statutory authority and directives. 25 The DOH receives and
investigates complaints about practitioners and prosecutes cases for disciplinary action against
practitioners.
The DOH, on behalf of the professional boards, investigates complaints against practitioners. 26 Once
an investigation is complete, the DOH presents the investigatory findings to the boards. The DOH
recommends a course of action to the appropriate board’s probable cause panel which may include: 27
Issuing an emergency order;
Having the file reviewed by an expert;
Issuing a closing order; or
Filing an administrative complaint.
The boards determine the course of action and any disciplinary action to take against a practitioner
under the respective practice act.28 For professions for which there is no board, the DOH determines
the action and discipline to take against a practitioner and issues the final orders. 29 The DOH is
responsible for ensuring that licensees comply with the terms and penalties imposed by the boards. 30 If
a case is appealed, DOH attorneys defend the final actions of the boards before the appropriate
appellate court.31
25 The DOH also establishes these for some professions. Professions which do not have a board include naturopathy, nursing
assistants, midwifery, respiratory therapy, dietetics and nutrition, electrolysis, medical physicists, genetic counselors, an d school
psychologists.
26 Department of Health, Investigative Services, http://www.floridahealth.gov/licensing-and-regulation/enforcement/admin-complaint-
process/isu.html (last visited Mar. 20, 2023).
27 Department of Health, Prosecution Services, http://www.floridahealth.gov/licensing-and-regulation/enforcement/admin-complaint-
process/psu.html (last visited Mar. 20, 2023).
28 S. 456.072(2), F.S.
29 Supra note 25.
30 Supra note 27.
31 Id.
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The DOH and board rules apply to all statutory grounds for discipline against a practitioner. Under
current law, the DOH has disciplinary authority for violations of a practice act only for practitioners that
are not regulated by a board. The DOH does not have final disciplinary authority over practitioners for
which there is a board.
Florida Health Care Licensure
The DOH does not license health care practitioners by specialty or subspecialty. A health care
practitioner’s specialty area of practice is acquired through the practitioner acquiring additional
education, training, or experience in a particular area of health care practice. Practitioners who have
acquired additional education, training, or experience in a particular area may also elect to become
board-certified in that specialty by private, national specialty boards, such as the American Board of
Medical Specialties (ABMS), the Accreditation Board for Specialty Nursing Certification, and the
American Board of Dental Specialties.32 Board certification is not required to practice a medical or
osteopathic specialty.
Health Care Practitioner Licensure – Federal Government and Military
The federal government does not license health care practitioners, nor does it regulate practitioner
behavior in terms of scope of practice, standards of practice, or practitioner discipline. Instead, the
federal government relies on state governments to fulfill those functions.
In addition to state licensure requirements, Medicare, Medicaid, and other government reimbursement
programs 33 rely on the power of the purse to manage practitioners and facilities providing health care
services to persons enrolled in such programs. These programs impose “conditions of participation”
and “conditions of payment,” which essentially mandate compliance with specified standards.
Certification under a federal health care program is an authorization to participate in government
payment systems; it is distinct from state licensure or accreditation by a nationally-recognized board.34
For example, under federal labor law, the definition of “health care provider” includes, in part, a doctor
of medicine or osteopathy who is authorized to practice medicine or surgery by the state in which the
doctor practices, and others capable of providing health care services, including podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse midwives, clinical social
workers, and physician assistants who are authorized to practice in the state and performing within the
scope of their practice as defined under state law. 35
Federal laws do not license or regulate such practitioners in the manner state regulatory laws and
practice acts do, and do not define practitioner credentials or scopes of practice outside the applicable
state law.
United States Armed Forces Career Fields
The U.S. Armed Forces consists of six military branches: Air Force, Army, Coast Guard, Marine Corps,
Navy, and Space Force. The secretary of the U.S. Department of Defense controls each branch, except
the Coast Guard, which is under the Department of Homeland Security (DHS). With more than two
million civilian and military employees, the U.S. Department of Defense is the world's largest
employer.36
32 Examples of specialties include dermatology, emergency medicine, ophthalmology, pediatric medicine, certified registered nurs e
anesthetist, clinical nurse specialist, cardiac nurse, nurse practitioner, endodontics, orthodontics, and pediatric dentistry .
33 Programs such as the federal workers’ compensation program for longshoremen and harbor workers found under 20 CFR
Subchapter A, available at: https://www.law.cornell.edu/cfr/text/20/chapter-VI/subchapter-A (last visited Mar. 17, 2023).
34 The Healthcare Law Review: USA, Spotlight: The Regulation of Healthcare Providers and Professionals in the USA, Sept. 7, 2020,
available at: https://www.lexology.com/library/detail.asp x?g=c3c193d 0-753e-4244-914a-fd943e70ec8e (last visited Mar. 17, 2023).
35 See 29 CFR s. 825.125, defining the term “health care provider” in the context of the Family and Medical Leave Act of 1993, as
amended.
36 Military.com, What Are the Branches of the US Military? at https://www.military.com/jo in-armed-forces/us-military-branches-
overview.html (last visited Mar. 20, 2023).
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Joining the U.S. Armed Forces as an enlisted member or an officer has a significant impact on the type
of experience and training a new recruit receives. All jobs for enlisted members require a high school
diploma, although, with certain exceptions, a passing General Education Development (GED) test
score is acceptable. While jobs for enlisted members include infantry roles, most jobs involve hands -on
training for mechanical, transportation, human service, or office fields that transfer to the civilian world.
Almost all officer positions require a four-year college degree or equivalent. Officers are the managers
of the military, acting in leadership roles that require planning, directing operations, and making critical
decisions. Officer positions also include careers that require advanced degrees, such as law and
medicine.37
The careers available to members of the U.S. Armed Forces are extensive, and depending on the
service branch, have been referred to as career management fields (CMF), occupational management
fields (OMF), and military occupational specialties (MOS). 38
Servicemember Professional License Portability
The federal Veterans Auto and Education Improvement Act of 2022, 39 (the federal portability act) which
became law on January 5, 2023, addresses the portability of professional licenses held by members of
the U.S. Armed Forces (service members) and their spouses, when they move outside the jurisdiction
that issued the license due to military orders for military service, under specified circumstances.
Portability is available only for a professional license or certificate in good standing with the issuing
licensing authority which has been actively used by the servicemember or spouse during the two years
immediately preceding the relocation (covered licenses), and licenses to practice law are expressly not
covered.
Under the act, a covered license must be considered valid at a similar scope of practice and in the
discipline applied for in the jurisdiction of such new residency for the duration of such military orders if
such servicemember or spouse:
Provides a copy of military orders to the licensing authority in the new jurisdiction;
Remains in good standing with:
o The licensing authority that issued the covered license; and
o Every other licensing authority that has issued to the servicemember or spouse a license
with a similar scope of practice and in the discipline applied in the new jurisdiction; and
Submits to the authority of the licensing authority in the new jurisdiction for the purposes of
standards of practice, discipline, and fulfillment of any continuing education requirements.
If the license of a servicemember or spouse is covered by an interstate licensure compact, use of the
license is governed by the interstate compact or applicable state law, and the above portability
provisions do not apply.
Occupational Licensing Trends
According to the National Conference of State Legislatures (NCSL), “occupational licensing remains a
growing area of interest for states, stemming largely from tight labor markets and the race to recruit
workers for the large number of job openings nationwide. In 2022, the focus has largely been on
37 Today’s Military, Enlisted and Officer Paths, at https://www.todaysmilitary.com/ways -to-serve/enlisted-officer-paths (last visited
Mar. 20, 2023).
38 See e.g., listed careers for the Air Force, Army, Marines, and Navy, respectively, at https://www.airforce.com/careers ;
https://en.wikipedia.org/wiki/List_of_United_States_Army_careers ; https://www.marines.com/about-the-marine-corps/roles/military -
occupational-specialty.html; and https://www.navy.com/node/3512 (all last visited Mar. 20, 2023).
39 See s. 19, Pub. Law No. 117-333, H.R. 7939, 117th Cong. (Jan. 5, 2023) at https://www.congress.gov/bill/117th-congress/house-
bill/7939/text (last visited Mar. 17, 2023), which amended the Servicemembers Civil Relief Act (SCRA), 42 U.S.C. 4021 et seq. by
adding Section 705A. The amendment also expands the right to terminate certain types of service contracts and clarifies optio ns for
tax residence for a servicemember and his or her spouse.
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improving the accessibility of licensing in order to bolster the workforce and integrate new
employees.”40 The NCSL identified four trends: worker mobility; universal licensure recognition;
reducing barriers for veterans and military spouses; and simplifying or eliminating licensing. 41
Emergency Powers
During a declared state of emergency, in addition to any other powers conferred upon the Governor by
law, the Governor may suspend the provisions of any regulatory statute prescribing the procedures for
conduct of state business or the orders or rules of any state agency, if strict compliance with the
provisions of any such statute, order, or rule would in any way prevent, hinder, or delay necessary
action in coping with the emergency.42
Effect of Bill
The bill, titled the Interstate-Mobility and Universal-Recognition Act, relates to licenses and
certifications issued by DBPR and DOH. The bill requires DBPR and DOH to recognize other state
licenses and certifications, certain work experience, and private certifications and work experience for
certain individuals, under certain circumstances.
The bill requires Florida licensing boards that issue occupational licenses or government certifications
to individuals under ch. 455, F.S., relating to the regulations of professions by the Department of
Business and Professional Regulation (DBPR), or ch. 456, F.S., relating to the regulation of professions
by the Department of Health (DOH), to issue an occupational license or government certification
(universal license) to eligible applicants, under certain circumstances (universal licensing requirement).
Applicants may seek a universal license through one of three pathways described in the bill. An
applicant from another state is automatically approved under the universal licensing scheme if:
The applicant is licensed by another licensing entity or state;
The applicant has certain work experience in another state or in the military; or
The applicant has a private certification with work experience in a non-licensing state or the
military.
The bill provides that an applicant with a valid occupational license or certification in good standing, or
who otherwise meets the requirements for an occupational license for a lawful occupation, is presumed
to be qualified for the license and must be issued an occupational license or government certification by
the appropriate Florida licensing board.
The bill provides the following definitions:
"Board" means an agency, board, department, or other governmental entity that regulates a
lawful occupation under DBPR or DOH and issues an occupational license or government
certification to an individual.
"Government certification" means a voluntary, government-granted, and nontransferable
recognition granted to an individual who meets personal qualifications related to a lawful
occupation. The term includes a military certification for a lawful occupation. The term does not
include credentials,43 such as those used for medical board certification or held by a certified
public accountant, that are prerequisites to working lawfully in an occupation.
40 See NCSL 2022 Occupational Licensing Trends Summary, https://www.ncsl.org/labor-and-employment/2022-occupational-
licensing-trends (last visited Mar. 20, 2023).
41 Id.
42 S. 252.36(6), F.S.
43 The term “credentials” is not defined in the bill, however, see the University of Florida Professional and Workforce Development
Medical Credentialing Program information at https://pwd.aa.ufl.edu/medical-credentialing-program/ (last visited Mar. 20, 2023). The
Florida Certification Board (FCB), a nonprofit organization, indicates it has, over the last 30 years, designed, developed an d managed
certification programs in Florida for over 30 health and human services professions. See https://flcertificationboard.org/credentials/
and https://flcertificationboard.org/about/ (last visited Mar. 20, 2023).
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"Lawful occupation" means a course of conduct, pursuit, or profession that includes the lawful
sale of goods or services to sell regardless of whether the individual selling them is subject to
an occupational license.
"Military" means the Armed Forces of the United States, including the Air Force, Army, Coast
Guard, Marine Corps, Navy, Space Force, National Guard, and all reserve components and
auxiliaries. The term also includes the military reserves and militia of any United States territory
or state.
"Occupational license" means a nontransferable authorization in law for an individual to
exclusively perform a lawful occupation based on meeting personal qualifications. The term
includes a military occupational specialty.
"Other licensing entity" or "another licensing entity" means any United States territory or state in
the United States other than this state which issues occupational licenses or government
certifications. The term includes the military.
"Private certification" means a voluntary program in which a private organization grants
nontransferable recognition to an individual who meets personal qualifications and standards
relevant to performing the occupation, as determined by the private organization.
"Scope of practice" means the procedures, actions, processes, and work that a person may
perform under an occupational license or government certification issued in this state.
The bill provides that notwithstanding any other law, a board must issue an occupational license or
government certification to a person applying to a board for such license or certification if all of the
following apply:
The person holds a current and valid occupational license or government certification by
another licensing entity in a lawful occupation with a similar scope of practice, as determined by
a board in this state.
The person has held the occupational license or government certification by another licensing
entity for at least 1 year.
A board for the other licensing entity required the person to pass an examination or meet
education, training, or experience standards.
A board for the other licensing entity holds the person in good standing.
The person does not have a disqualifying criminal record as determined by a board in this state.
A board for another licensing entity has not revoked the person's occupational license or
government certification because of negligence or intentional misconduct related to the person's
work in the occupation.
The person did not surrender an occupational license or government certification, or have such
license or certification revoked, because of negligence or intentional misconduct related to the
person's work in the occupation in another state or in the military.
The person does not have a complaint, allegation, or investigation pending before a board for
another licensing entity which relates to unprofessional conduct or an alleged crime. If the
person has a complaint, allegation, or investigation pending, a board may not issue or deny an
occupational license or government certification to the person until the complaint, allegation, or
investigation is resolved or the person otherwise meets the criteria for an occupational license
or government certification in this state to the satisfaction of a board in this state.
The person pays all applicable fees in this state.
If another licensing entity issued the person a government certification but this state requires an
occupational license to work, a board must issue an occupational license to the person if the person
otherwise satisfies all of the above qualifications.
Work Experience
In addition, the bill requires boards under DBPR and DOH to issue an occupational license or
government certification to a person applying to a board for such license or certification based on work
experience in another state or the military if all of the following requirements are met:
The person worked in a state that does not use an occupational license or government
certification to regulate a lawful occupation or was a member of the military, but this state uses
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an occupational license or government certification to regulate a lawful occupation with a similar
scope of practice, as determined by the board.
The person worked for at least 3 years in the lawful occupation.
The person satisfies all of the above qualifications under occupational license or government
certification.
Private Certification
Notwithstanding any other law, a board must issue an occupational license or government certification
to a person applying for such license or certification based on the person holding a private certification
and the person's work experience in another state or the military if all of the following apply:
The person holds a private certification and worked in a state that does not use an occupational
license or government certification to regulate a lawful occupation or was a member of the
military, but this state uses an occupational license or government certification to regulate a
lawful occupation with a similar scope of practice, as determined by the board.
The person worked for at least 2 years in the lawful occupation.
The person holds a current and valid private certification in the lawful occupation.
The private certification organization holds the person in good standing.
The person does not have a disqualifying criminal record as determined by a board in this state.
A board for another licensing entity has not revoked the person's occupational license or
government certification because of negligence or intentional misconduct related to the person's
work in the occupation.
The person did not surrender an occupational license or government certification, or have such
license or certification revoked, because of negligence or intentional misconduct related to the
person's work in the occupation in another state or in the military.
The person does not have a complaint, allegation, or investigation pending before a board for
another licensing entity which relates to unprofessional conduct or an alleged crime. If the
person has a complaint, allegation, or investigation pending, a board may not issue or deny an
occupational license or government certification to the person until the complaint, allegation, or
investigation is resolved or the person otherwise meets the criteria for an occupational license
or government certification in this state to the satisfaction of a board in this state.
The person pays all applicable fees in this state.
Presumption of Approval
The bill provides that unless a board can demonstrate a substantial difference between licensure or
certification requirements of another licensing entity and this state, there is a presumption that an
applicant who holds a valid occupational license, government certification, or private certification, or
otherwise meets the requirements to credentialed for a lawful occupation, and is in good standing in
another state is qualified for an occupational license or government certification in this state and must
be approved by the board.
A board shall provide an applicant with a written decision regarding the application within 90 days after
receiving a complete application.
Appeal Process
The person may appeal the board's decision to the Division of Administrative Hearings, such as:
The board’s denial;
Determination of the occupation;
Determination of the similarity of the scope of practice of the occupational license or
government certification issued; or
Other applicable determinations.
Applicability
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The bill provides that:
Nothing in this bill shall prevent a person from obtaining an occupational license or government
certification from another law or rule.
An occupational license or government certification issued under this bill is valid only in this
state unless otherwise provided by law.
It does not prevent Florida from entering into a licensing compact or reciprocity agreement with
another state, foreign province, foreign country, international organization, or other entity.
May not be construed to prevent this state from recognizing occupational credentials issued by
a private certification organization, foreign province, foreign country, international organization,
or other entity.
May not be construed to require a private organization to grant or deny private certification to
any individual.
The bill provides that the Governor may order the recognition of occupational licenses from other
licensing entities or from a foreign country as if the licenses were issued in this state under a state of
emergency declared by the Governor.
The bill requires each board under DBPR and DOH to submit an annual report to the President of the
Senate and the Speaker of the House of Representatives by December 31 of each year, detailing the
number of licenses or certifications issued, the number of applications submitted which were denied,
and the reason for each denial.
The bill provides an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1: Creates s. 455.2135, F.S.; the “Interstate-Mobility and Universal Recognition
Occupational Licensing Act.”
Section 2: Provides an effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
The bill may increase revenues from application fees at DBPR and DOH due to an increase in out-
of-state license applicants.
2. Expenditures:
DBPR and DOH may have an indeterminate negative fiscal impact related to creating new licensing
processes and forms. See Fiscal Comments.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
The bill may increase revenues from application fees for local contracting licenses due to an
increase in out-of-state license applicants.
2. Expenditures:
The bill may cause an increase in local contractor licenses being issued, but local governments
may charge fees to cover the cost of regulation.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Individuals in the state may make the decision to forgo education and testing requirements in Florida in
favor of moving to another state that has an easier path to licensure, or move to a state that doesn’t
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have a licensing scheme to obtain a private certification, and later return to be licensed in the state
through one of the bill’s alternative pathways.
Out-of-state professionals seeking to work in the state may be eligible under the additional alternative
pathways created by the bill to obtain a license to work in specified occupations and professions in
Florida. Thus, the state may see an increase in the number of available professionals to hire.
D. FISCAL COMMENTS:
DBPR has provided the following response on the fiscal impact: 44
The potential fiscal impact to DBPR is indeterminate at this time. Depending upon the number of
individuals who take advantage of this new licensing method the DBPR would collect a corresponding
amount of revenues from the licensees. Additionally, if enough new license applications are received
there could be staffing needs in order to process any increased applications or complaints.
DOH estimates they will need $2.5 M in additional resources including 13.00 positions. The estimate
includes $1.1 M in salary and benefits, $432 K in expenses, $18 K in OPS, and $641 K in contracted
services. However, in Fiscal Year 2021-2022, DOH reverted $125.0 M in salaries and benefits, $43.0 M
in expenses, $27.4 M in OPS, and $35.4 M in contracted services. Additionally, as of April 4, 2023,
DOH had 2,473.85 vacant positions for a department vacancy rate of 19.3 percent.
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:
Article VII, s. 19 of the Florida Constitution requires the imposition, authorization, or raising of a state
tax or fee be contained in a separate bill that contains no other subject and be approved by two-
thirds of the membership of each house of the Legislature. As such, Art, VII, s. 19 of the Florida
Constitution may apply if the fee provisions in the bill are interpreted to be a new fee.
Mandating acceptance of unspecified private certifications and other state licenses may potentially
implicate the “nondelegation doctrine.” Article III, Section 1 of the Florida Constitution states that
"[t]he legislative power of the state shall be vested in a legislature of the State of Florida.” The
Florida Supreme Court has held that this constitutional provision requires that “primary policy
decisions must be made by members of the legislature who are elected to perform those tasks, and
administration of legislative programs must be pursuant to some minimal standards and
guidelines….”45
The Legislature may constitutionally transfer subordinate functions to "permit administration of
legislative policy by an agency with the expertise and flexibility to deal with complex and fluid
conditions."46 However, the Legislature "may not delegate the power to enact a law or the right to
exercise unrestricted discretion in applying the law."47 Further, the nondelegation doctrine precludes
44 Department of Business and Professional Regulation, Agency Analysis of 2023 Senate Bill 1364, p. 10 (Mar. 20, 2023).
45 Askew v. Cross Key Waterways, 372 So.2d 913, 925 (Fla. 1978).
46 Microtel v. Fla. Pub. Serv. Comm'n, 464 So.2d 1189, 1191 (Fla.1985) (citing State, Dep't of Citrus v. Griffin, 239 So.2d 577
(Fla.1970)).
47 Sims v. State, 754 So.2d 657, 668 (Fla. 2000).
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the Legislature from delegating its powers “absent ascertainable minimal standards and
guidelines.”48 When the Legislature delegates power to another body, it “must clearly announce
adequate standards to guide in the execution of the powers delegated.” 49
The bill allows people to obtain a license in this state that move here from another state more easily
than Florida residents. There are constitutional provisions and analysis that may be implicated. 50
B. RULE-MAKING AUTHORITY:
The bill requires boards at DBPR and DOH to create new licensing processes and forms. The bill does
not provide rulemaking authority.
C. DRAFTING ISSUES OR OTHER COMMENTS:
It is unclear if the bill is intended to cover all licensed professions in the state or only those licensed
professions covered in chs. 455 and 456, F.S., as it specifically excepts occupations regulated by the
Florida Supreme Court, such professionals are not regulated by DBPR or DOH.
The sponsor has indicated that an amendment is planned to address concerns once the sponsor has
heard from all interested parties and received input from DBPR and DOH. The planned amendment will
also address technical drafting issues, make conforming changes, clarify definitions and other language
for consistency, address profession and industry specific concerns by identifying more specifically
those individuals who are not covered by the universal licensing requirements created by the bill, and
will allow rulemaking by DBPR and DOH to implement the provisions in the bill.
The bill may also need clarification related to which fees an applicant must pay. DBPR and DOH have a
specific fee structure authorized for each type of license and avenue for obtaining licensure, including a
license by endorsement. The bill does not currently specify which fee or fees are applicable.
The bill may need clarification related to the requirements for a universal license based on work
experience, which appear to be internally inconsistent. To qualify under this provision, the bill requires
the applicant to have worked in another state that does not require a license for the occupation;
however, to qualify under this provision, the bill also requires the applicant to meet the requirements s.
455.2135(3)(a), F.S., which requires the person to have been licensed by another licensing entity.
Some of the bill’s provisions conflict with current law. For example: The bill creates s. 455.2135, F.S., to
provide occupational license portability for professions or occupations regulated by the DBPR and
DOH. However, ch. 455, F.S., relates to professions regulated by the DBPR. The sponsor may wish to
include in an amendment additional provisions in ch. 456, F.S., noting the applicability of the act to
professions regulated by the DOH, and providing notice to eligible individuals and the affected boards
of the universal licensing requirements. A similar amendment may be needed to clarify conflicts
between the bill’s provisions related to the Emergency Powers of the Governor that conflict with current
law.
DBPR has conveyed the following concerns:51
The bill states that a board may not issue or deny an occupational license or government certification to
any person with a pending complaint, allegation, or investigation until such matter is resolved. This
conflicts with s. 455.213(4), F.S., which authorizes denial of an initial license to any applicant who is
under investigation or prosecution in any jurisdiction for an action that would constitute a violation of ch.
455, F.S., or the respective professional practice acts, until such time as the investigation is complete. It
is unclear if the provisions of s. 120.60(1), F.S., that deem an application approved for failure to issue a
48 Dep't of Bus. Reg., Div. of Alcoholic Beverages and Tobacco v. Jones, 474 So.2d 359, 361 (Fla. 1st DCA 1985).
49 Martin, 916 So.2d at 770.
50 U.S. Const. art IV, § 2, cl. 1; U.S. Const. art I, § 8, cl. 3; U.S. Const. amend. XIV, §§ 1,2;
51 Id. at 8-9.
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decision within 90 days of a complete application would still apply when an agency is prohibited from
denying or issuing a license while the applicant has pending complaints, allegations, or investigations.
The bill’s effective date of July 1, 2023 will not allow sufficient time for rulemaking to implement the
provisions of the bill, including developing new fees and applications.
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 1333 2023
1 A bill to be entitled
2 An act relating to the Interstate-Mobility and
3 Universal-Recognition Occupational Licensing Act;
4 creating s. 455.2135, F.S.; providing a short title;
5 defining terms; requiring certain agencies, boards,
6 departments, and other governmental entities to issue
7 an occupational license or government certification to
8 persons under certain circumstances; authorizing such
9 entities to require a person to pass a specified
10 examination under certain circumstances; providing a
11 presumption that the applications of certain
12 individuals will be approved; requiring such entities
13 to provide a written decision to an applicant within a
14 specified timeframe; authorizing a person to appea l a
15 decision made under the act; specifying that a person
16 licensed or certified under the act is still subject
17 to specified laws and entities; providing
18 construction; authorizing the Governor to take certain
19 actions relating to occupational licenses during
20 declared states of emergency; requiring such entities
21 to submit an annual report to the Legislature by a
22 specified date; 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 455.2135, Florida Statutes, is created
27 to read:
28 455.2135 Interstate-Mobility and Universal-Recognition
29 Occupational Licensing Act.—
30 (1) SHORT TITLE.—This section may be cited as the
31 "Interstate-Mobility and Universal-Recognition Occupational
32 Licensing Act."
33 (2) DEFINITIONS.—As used in this section, the term:
34 (a) "Board" means an agency, board, department, or other
35 governmental entity that regulates a lawful occupation under
36 this chapter or chapter 456 and issues an occupational license
37 or government certification to an individual.
38 (b) "Government certification" means a voluntary,
39 government-granted, and nontransferable recognition granted to
40 an individual who meets personal qualifications related to a
41 lawful occupation. The term includes a military certification
42 for a lawful occupation. The term does not include credentials,
43 such as those used for medical board certification or held by a
44 certified public accountant, that are prerequisites to working
45 lawfully in an occupation.
46 (c) "Lawful occupation" means a course of conduct,
47 pursuit, or profession that includes lawful the sale of goods or
48 services to sell regardless of whether the individual selling
49 them is subject to an occupational license.
50 (d) "Military" means the Armed Forces of the United
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51 States, including the Air Force, Army, Coast Guard, Marine
52 Corps, Navy, Space Force, National Guard, and all reserve
53 components and auxiliaries. The term also includes the military
54 reserves and militia of any United States territory or state.
55 (e) "Occupational license" means a nontransferable
56 authorization in law for an individual to exclusively perform a
57 lawful occupation based on meeting personal qualifications. The
58 term includes a military occupational specialty.
59 (f) "Other licensing entity" or "another licensing ent ity"
60 means any United States territory or state in the United States
61 other than this state which issues occupational licenses or
62 government certifications. The term includes the military.
63 (g) "Private certification" means a voluntary program in
64 which a private organization grants nontransferable recognition
65 to an individual who meets personal qualifications and standards
66 relevant to performing the occupation, as determined by the
67 private organization.
68 (h) "Scope of practice" means the procedures, action s,
69 processes, and work that a person may perform under an
70 occupational license or government certification issued in this
71 state.
72 (3) OCCUPATIONAL LICENSE OR GOVERNMENT CERTIFICATION.—
73 (a) Notwithstanding any other law, a board must issue an
74 occupational license or government certification to a person
75 applying to a board for such license or certification if all of
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76 the following apply:
77 1. The person holds a current and valid occupation al
78 license or government certification by another licensing entity
79 in a lawful occupation with a similar scope of practice, as
80 determined by a board in this state.
81 2. The person has held the occupational license or
82 government certification by another licensing entity for at
83 least 1 year.
84 3. A board for the other licensing entity required the
85 person to pass an examination or meet education, training, or
86 experience standards.
87 4. A board for the other licensing entity holds the person
88 in good standing.
89 5. The person does not have a disqualifying criminal
90 record as determined by a board in this state.
91 6. A board for another licensing entity has not revoked
92 the person's occupational license or government certification
93 because of negligence or intentional misconduct related to the
94 person's work in the occupation.
95 7. The person did not surrender an occupational license or
96 government certification, or have such license or certification
97 revoked, because of negligence or intentional misconduct related
98 to the person's work in the occupation in another state or in
99 the military.
100 8. The person does not have a complaint, allegation, or
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101 investigation pending before a board for another licensing
102 entity which relates to unprofessional conduct or an alleged
103 crime. If the person has a complaint, allegation, or
104 investigation pending, a board may not issue or deny an
105 occupational license or government certification to the person
106 until the complaint, allegation, or investigation is resolved or
107 the person otherwise meets the criteria for an occupational
108 license or government certification in this state to the
109 satisfaction of a board in this state.
110 9. The person pays all applicable fees in this state.
111 (b) If another licensing entity issued the person a
112 government certification but this state requires an occupational
113 license to work, a board must issue an occupational license to
114 the person if the person otherwise satisfies paragraph (a).
115 (4) WORK EXPERIENCE.—Notwithstanding any other law, a
116 board must issue an occupational license or government
117 certification to a person applying to the board for such license
118 or certification based on work experience in another state or
119 the military if all of the following apply:
120 (a) The person worked in a state that does not use an
121 occupational license or government certification to regulate a
122 lawful occupation or was a member of the military, but this
123 state uses an occupational license or government certification
124 to regulate a lawful occupation with a similar scope of
125 practice, as determined by the board.
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126 (b) The person worked for at least 3 years in the lawful
127 occupation.
128 (c) The person satisfies paragraph (3)(a).
129 (5) PRIVATE CERTIFICATION.—Notwithstanding any other law,
130 a board must issue an occupational license or government
131 certification to a person applying for such license or
132 certification based on the person holding a private
133 certification and the person's work experience in another state
134 or the military if all of the following apply:
135 (a) The person holds a private certification and worked in
136 a state that does not use an occupational license or government
137 certification to regulate a lawful occupation or was a member of
138 the military, but this state uses an occupational license or
139 government certification to regulate a lawful occupation with a
140 similar scope of practice, as determined by the board.
141 (b) The person worked for at least 2 years in the lawful
142 occupation.
143 (c) The person holds a current and valid private
144 certification in the lawful occupation.
145 (d) The private certification organization holds the
146 person in good standing.
147 (e) The person satisfies subparagraphs (3)(a)5.-9.
148 (6) STATE EXAMINATION.—A board may require a person to
149 pass a jurisprudential examination specific to relevant state
150 laws that regulate the occupation if an occupational license or
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151 government certification under this chapter or chapter 456
152 requires such examination.
153 (7) PRESUMPTION OF APPROVAL; DECISION.—Unless a board can
154 demonstrate a substantial difference between licensure or
155 certification requirements of another licensing entity and this
156 state, there is a presumption that an applicant who holds a
157 valid occupational license, government certification, or private
158 certification, or otherwise meets the requirements to be
159 credentialed for a lawful occupation, and is in good standing in
160 another state is qualified for an occupational license or
161 government certification in this state and must be approved by
162 the board. A board shall provide an applicant with a written
163 decision regarding his or her application within 90 days after
164 receiving a complete application.
165 (8) APPEAL.—
166 (a) The person may appeal the board's decision to the
167 Division of Administrative Hearings.
168 (b) The person may appeal the board's:
169 1. Denial of an occupational license or government
170 certification;
171 2. Determination of the occupation;
172 3. Determination of the similarity of the scope of
173 practice of the occupational license or government certification
174 issued; or
175 4. Other determinations made under this section.
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176 (9) STATE LAWS AND JURISDICTION.—A person who obtains an
177 occupational license or a government certification pursuant to
178 this section is subject to:
179 (a) The laws regulating the occupation in this state; and
180 (b) The jurisdiction of the board in this state.
181 (10) EXCEPTION.—This section does not apply to an
182 occupation regulated by the Florida Supreme Court.
183 (11) CONSTRUCTION.—
184 (a) This section may not be construed to prohibit a person
185 from applying for an occupational license or a government
186 certification under another law or rule.
187 (b) An occupational license or a government certification
188 issued pursuant to this section is valid only in this state.
189 Such license or certification does not make the person eligible
190 to work in another state under an interstate compact or a
191 reciprocity agreement unless otherwise provided in law.
192 (c) This section may not be construed to prevent this
193 state from entering into a licensing compact or reciprocity
194 agreement with another state, foreign province, foreign country,
195 international organization, or other entity.
196 (d) This section may not be construed to prevent this
197 state from recognizing occupational credentials issued by a
198 private certification organization, foreign province, foreign
199 country, international organization, or other entity.
200 (e) This section may not be construed to require a private
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201 certification organization to grant or deny private
202 certification to any individual.
203 (12) EMERGENCY POWERS.—
204 (a) During a state of emergency declared by the Governor,
205 the Governor may order the recognition of occupational licenses
206 from other licensing entities or from a foreign country as if
207 the licenses were issued in this state.
208 (b) The Governor may expand any occupational license's
209 scope of practice and may authorize licensees to provide
210 services in this state in person, telephonically, or by other
211 means for the duration of the emergency.
212 (13) ANNUAL REPORT.—Each board shall submit an annual
213 report to the President of the Senate and the Speaker of the
214 House of Representatives by December 31 of each year, detailing
215 the number of licenses or certifications issued pursuant to this
216 section, the number of applications submitted pursuant to this
217 section which were denied, and the reason for each denial.
218 Section 2. This act shall take effect July 1, 2023.
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COMMERCE COMMITTEE
HB 1333 by Rep. Koster
Interstate-Mobility and Universal-Recognition Occupational Licensing Act
AMENDMENT SUMMARY
April 24, 2023
Amendment 1 by Rep. Koster (line 181):
• Provides that the bill does not apply to acupuncturists, physicians, osteopathic
physicians, chiropractic physicians, podiatric physicians, certified optometrists, dentists
and dental hygienists, professional engineers, certified public accountants, physical
therapists and physical therapy assistants general contractors, building contractors,
residential contractors, roofing contractors, specialty structure contractors, glass and
glazing contractors, electrical contractors, alarm system contractors, clinical social
workers, marriage and family therapists, mental health counselors, and funeral directors.
Amendment 2 by Rep. Koster (line 217):
• Provides that, contingent upon the appropriation of funds, the Department of Veterans’
Affairs must establish a portal system that allows former and present members of the
military and their dependents to enter and verify their military credentials, government
certifications, occupational licenses, or recognized private certifications.
• Requires the Department of Business and Professional Regulation and the Department
of Health to use this system to verify credentials for license applicants.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 1333 (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 Koster offered the following:
3
4 Amendment
5 Remove lines 181-182 and insert:
6 (10) EXCEPTION.—This section does not apply to an
7 occupation regulated by the Florida Supreme Court;
8 acupuncturists regulated under chapter 457; physicians regulated
9 under chapter 458; osteopathic physicians regulated under
10 chapter 459; chiropractic physicians regulated under chapter
11 460; podiatric physicians regulated under chapter 461; certified
12 optometrists regulated under chapter 463; dentists and dental
13 hygienists regulated under chapter 466; professional engineers
14 regulated under chapter 471; certified public accountants
15 regulated under chapter 473; physical therapists and physical
16 therapy assistants regulated under chapter 486; general
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 1333 (2023)
Amendment No.1
17 contractors, building contractors, residential contractors,
18 roofing contractors, specialty structure contractors, glass and
19 glazing contractors, electrical contractors, and alarm system
20 contractors regulated under chapter 489; clinical social
21 workers, marriage and family therapists, and mental health
22 counselors regulated under chapter 491; and funeral directors
23 regulated under chapter 497.
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 1333 (2023)
Amendment No.2
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/O OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Commerce Committee
2 Representative Koster offered the following:
3
4 Amendment
5 Between lines 217 and 218, insert:
6 (14) VETERANS ONLINE PORTAL.—Contingent upon the
7 appropriation of funds for that purpose by the Legislature, the
8 Department of Veterans’ Affairs shall establish a one -stop
9 online portal system that allows former and present members of
10 the military and their dependents to enter and verify their
11 military credentials, government certifications, occupational
12 licenses, or recognized private certifications. The Department
13 of Business and Professional Regulation and the Department of
14 Health shall, for the boards under their respective
15 jurisdiction, use this system to verify credentials for
16 applicants under this section.
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CS/HB 1383
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1383 Specialty Contractors
SPONSOR(S): State Administration & Technology Appropriations Subcommittee, Trabulsy
TIED BILLS: IDEN./SIM. BILLS: CS/CS/SB 1570
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform & Economic Development 9 Y, 2 N Wright Anstead
Subcommittee
2) State Administration & Technology 12 Y, 0 N, As CS Helpling Topp
Appropriations Subcommittee
3) Commerce Committee Wright Hamon
SUMMARY ANALYSIS
In 2021, HB 735 was enacted, which expressly preempted occupational licensing to the state and provided that any local
licensing of an occupation not specifically authorized by general law may not be enforced. This preemption supersedes
any local government licensing requirement of occupations unless:
The licensing of occupations by local governments is authorized by general law; or
The local licensing scheme was imposed before July 1, 2021. However, any such local licensing scheme expires
on July 1, 2023.
HB 735 specifically preempted local construction licensing that is outside the scope of state construction contractor
licensing provisions regulated by the Construction Industry Licensing Board (CILB) under the Department of Business and
Professional Regulation, including, but not limited to, painting, cabinetry, and ornamental iron installation.
The bill extends the expiration date for local licensing without general law authority to January 1, 2024,
The bill requires the CILB, by January 1, 2024, to, by rule, establish certified specialty contractor categories for voluntar y
licensure for all of the following:
Structural aluminum or screen enclosures. Rooftop solar heating installation.
Marine seawall work. Structural steel.
Marine bulkhead work. Window and door installation, including garage
Marine dock work. door installation and hurricane or windstorm
Marine pile driving. protection.
Structural masonry. Plaster and lath.
Structural prestressed, precast concrete work.
The bill provides that a local government may not require a license issued by the local government or CILB to perform a
job scope which does not substantially correspond to one of the state contractor or specialty contractor categories.
The bill prohibits local governments from requiring a license to obtain a permit for a job scope outside of the practice of
contracting.
The bill allows a county in an area designated as an area of critical state concern to continue to offer a license for any jo b
scope which requires a statewide contractor license, or a local government to continue to offer a license for fence
installation and erection, if such a licensing requirement existed before January 1, 2021.
The bill provides that a local government may not require a license as a prerequisite to submit a bid for public works
projects if the work to be performed does not require a license under general law.
The bill will have an indeterminate, likely insignificant, negative fiscal impact on state government and does not appear to
have a fiscal impact on local governments. 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:
Preemption
State preemption precludes a local government from exercising authority in a particular area, and
requires consistency with the state constitution or state statute. 1 A local government enactment may be
found inconsistent with state law if (1) the Legislature has preempted a particular subject area to the
state or (2) the local regulation conflicts with a state statute.2
Florida law recognizes two types of preemption: express and implied. Express preemption requires a
specific legislative statement; it cannot be implied or inferred. 3 Express preemption of a field by the
Legislature must be accomplished by clear language stating that intent.4 When local ordinances have
been enacted in the face of state preemption, the effect has been to find such ordinances null and
void.5
Implied preemption is a legal doctrine that addresses situations in which the legislature has not
expressly preempted an area but, for all intents and purposes, the area is dominated by the state.
Findings of implied preemption are for a very narrow class of areas in which the state has legislated
pervasively.6
Local Government Authority
General law authorizes counties "the power to carry on county government” and to "perform any other
acts not inconsistent with law, which acts are in the common interest of the people of the county, and
exercise all powers and privileges not specifically prohibited by law.”7 More specifically, non-charter
county governments may exercise those powers of self-government that are provided by general or
special law.8 Those counties operating under a county charter have all powers of self-government not
inconsistent with general law or special law approved by vote of the electors. 9
Likewise, municipalities 10 have those governmental, corporate, and proprietary powers that enable
them to conduct municipal government, perform functions, provide services, and exercise any power for
municipal purposes, except as otherwise provided by law. 11
A "special district" is a unit of local government created for a particular purpose, with jurisdiction to
operate within a limited geographic boundary. Special districts are created by general law, 12 special
1 James R. Wolf and Sarah Harley Bolinder, The Effectiveness of Home Rule: A Preemption and Conflict Analysis, 83 Fla.
B.J. 92 (June 2009), available at https://www.floridabar.org/the-florida-bar-journal/the-effectiveness-of-home-rule-a-
preemption-and-conflict-analysis/.
2 Id.
3 See City of Hollywood v. Mulligan, 934 So. 2d 1238, 1243 (Fla. 2006); Phantom of Clearwater, Inc. v. Pinellas County,
894 So. 2d 1011, 1018 (Fla. 2d DCA 2005), approved in Phantom of Brevard, Inc. v. Brevard County, 3 So. 3d 309 (Fla.
2008).
4 Mulligan, 934 So. 2d at 1243.
5 See, e.g., Nat’l Rifle Ass’n of Am., Inc. v. City of S. Miami, 812 So.2d 504 (Fla. 3d DCA 2002).
6 Wolf and Bolinder, supra note 1.
7 Id.
8 Art. VIII, s. 1(f), Fla. Const.
9 Art. VIII, s. 1(g), Fla. Const.
10 A municipality is a local government entity created to perform functions and provide services for the particular benefit of
the population within the municipality, in addition to those provided by the county. The term “municipality” may be used
interchangeably with the terms “town,” “city,” and “village.”
11 Art. VIII, s. 2(b), Fla. Const. See also s. 166.021(1), F.S.
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act,13 local ordinance,14 or by rule of the Governor and Cabinet.15 A special district has only those
powers expressly provided by, or reasonably implied from, the authority provided in the district’s
charter. Special districts provide specific municipal services in addition to, or in place of, those provided
by a municipality or county.16
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 the governing body of a single county or municipality.17 An
“independent special district” is any district that is not a dependent special district.18
Revenue Sources Authorized in the Florida Constitution19
The Florida Constitution limits the ability of local governments to raise revenue for their operations. The
Florida Constitution provides:
No tax shall be levied except in pursuance of law. No state ad valorem taxes 20
shall be levied upon real estate or tangible personal property. All other forms of
taxation shall be preempted to the state except as provided by general law. 21
Counties, school districts, and municipalities shall, and special districts may, be
authorized by law to levy ad valorem taxes and may be authorized by general
law to levy other taxes, for their respective purposes, except ad valorem taxes on
intangible personal property and taxes prohibited by this constitution.22
However, not all local government revenue sources are taxes requiring general law authorization.
When a county or municipal revenue source is imposed by ordinance, the question is whether the
charge is a valid assessment or fee. As long as the charge is not deemed a tax, the imposition of the
assessment or fee by ordinance is within the constitutional and statutory home rule powers of county
and municipal governments. If the charge is not a valid assessment or fee, it is deemed a revenue
source requiring general law authorization.
Revenue Sources Based on Home Rule Authority
Pursuant to home rule authority, local governments may impose proprietary fees, regulatory fees, and
special assessments to pay the cost of providing a facility or service or regulating an activity. A
regulatory fee should not exceed the regulated activity’s cost and is generally required to be applied
solely to the regulated activity’s cost for which the fee is imposed.23
12 S. 189.031(3), F.S.
13 Id.
14 S. 189.02(1), F.S.
15 S. 190.005(1), F.S. See, generally, s. 189.012(6), F.S.
16 2018 – 2020 Local Gov’t Formation Manual, p. 62,
https://myfloridahouse.gov/Sections/Documents/loaddoc.aspx?PublicationType= Committees&CommitteeId=3025&Sessio
n=2019&DocumentType=General%20P ublications&FileName=2018-
2020%20Local%20Government%20Formation%20Manual%20Final.pdf (last visited Dec 19, 2019).
17 S. 189.012(2), F.S.
18 S. 189.012(3), F.S.
19 The Florida Legislature, Office of Economic and Demographic Research, 2019 Local Government Financial Information
Handbook, p. 1, http://edr.state.fl.us/Content/local-government/reports/lgfih19.pdf.
20 “Ad valorem tax” means a tax based upon the assessed value of property.” Section 192.001(1), F.S.
21 Art. VII, s. 1(a), Fla. Const.
22 Art. VII, s. 9(a), Fla. Const.
23 EDR, supra note 19, at 9.
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HB 735 (2021 Regular Session)
General law directs a number of state agencies and licensing boards to regulate certain professions
and occupations. For example, the Department of Business and Professional Regulation (DBPR)
currently regulates approximately 25 professions and occupations.24
In 2021, HB 73525 was enacted, relating to preempting occupational licensing to the state. The law
defines the following terms:
“Local government” means a county, municipality, special district, or political subdivision of the
state.
“Occupation” means a paid job, profession, work, line of work, trade, employment, position,
post, career, field, vocation, or craft.
"Licensing" means any training, education, test, certification, registration, or license that is
required for a person to perform an occupation along with any associated fee.
The law expressly preempts occupational licensing to the state. This preemption supersedes any local
government licensing requirement of occupations unless:
The licensing of occupations by local governments is authorized by general law; or
The local licensing scheme for an occupation was imposed before July 1, 2021. However, any
such local licensing scheme expires on July 1, 2023.
The law provides that any local licensing of an occupation not authorized under the provisions of the bill
or otherwise authorized by general law does not apply and may not be enforced. For example, Florida
law specifically authorizes local regulations relating to:
Zoning and land use;
The levy of “reasonable business, professional, and occupational regulatory fees,
commensurate with the cost of the regulatory activity, including consumer protection, on such
classes of businesses, professions, and occupations, the regulation of which has not been
preempted by the state or a county pursuant to a county charter”;26
The levy of local business taxes;27
Building code inspection fees;28
Tattoo establishments;29
Massage practices;30
Child care facilities;31
Taxis and other vehicles for hire;32 and
Waste and sewage collection.33
Additionally, Florida law specifically preempts local regulation with regard to the following:
Zoning of family day care homes;34
Zoning of community residential homes;35
Pest control;36
24 S. 20.165, F.S.
25 Ch. 2021-214, L.O.F.
26 S. 166.221, F.S.
27 Ch. 205, F.S.
28 S. 166.222, F.S.
29 S. 381.00791, F.S.
30 S. 480.052, F.S.
31 S. 402.306, F.S
32 S. 125.01(1)(n), F.S.
33 S. 125.01(1)(k), F.S.
34 S. 125.0109, F.S.
35 S. 419.001, F.S.
36 S. 482.242(1), F.S.
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Assessing local fees in certain circumstances for contractors; 37
Assessing local fees for low-voltage alarm system projects;38
Public lodging establishments and public food service establishments; 39
Food trucks;40
Mobile home parks, lodging parks, recreational vehicle parks, and recreational camps;41
Beekeeping;42
Nonresidential farm buildings, farm fences and farm signs;43
Insurers and agents;44
Sellers of travel;45
Movers of household goods and moving brokers;46
Tobacco and nicotine products;47
Firearms, weapons, and ammunition;48
Employment benefits;49
Polystyrene products;50 and
Disposable plastic bags.51
Construction Professional Licenses
Chapter 489, F.S., relates to “contracting,” with part I addressing the licensure and regulation of
construction contracting, and part II addressing the licensure and regulation of electrical and alarm
system contracting.
Construction contractors are either certified or registered by the Construction Industry Licensing Board
(CILB) housed within DBPR. The CILB consists of 18 members who are appointed by the Governor
and confirmed by the Senate. The CILB meets to approve or deny applications for licensure, review
disciplinary cases, and conduct informal hearings relating to discipline. 52
"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.53
“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.
37 S. 553.80(7)(d), F.S.
38 S. 489.503(14), F.S.
39 S. 509.032, F.S.
40 S. 509.102, F.S.
41 S. 513.051, F.S.
42 Ss. 586.10(1) & 586.055, F.S.
43 S. 604.50, F.S.
44 S. 624.401(3), F.S.
45 S. 559.939
46 S. 507.13, F.S.
47 Ch. 569, F.S., and s. 386.209, F.S.
48 S. 790.33(1), F.S.
49 S. 218.077, F.S.
50 S. 500.90, F.S.
51 S. 403.7033, F.S.
52 S. 489.107, F.S.
53 S. 489.105, F.S.
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“Registered contractors” are individuals that have taken and passed a local competency examination
and can practice the specific category of contracting for which he or she is approved, only in the local
jurisdiction for which the license is issued.54
The CILB licenses the following types of contractors: 55
Statutory Licenses Specialty Licenses
Air Conditioning- Classes A, B, and C Drywall
Building Demolition
General Gas Line
Internal Pollutant Storage Tank Lining Glass and Glazing
Applicator Industrial Facilities
Mechanical Irrigation
Plumbing Marine
Pollutant Storage Systems Residential Pool/Spa Servicing
Pool/Spa- Classes A, B, and C Solar Water Heating
Precision Tank Tester Structure
Residential Swimming Pool Decking
Roofing Swimming Pool Excavation
Sheet Metal Swimming Pool Finishes
Solar Swimming Pool Layout
Underground Excavation Swimming Pool Piping
Swimming Pool Structural
Swimming Pool Trim
Tower
Current law provides that local jurisdictions may approve or deny applications for licensure as a
registered contractor, review disciplinary cases, and conduct informal hearings relating to discipline of
registered contractors licensed in their jurisdiction.56 Local governments may only collect licensing fees
that cover the cost of regulation.57
Locally registered contractors that are required to hold a contracting license to practice their profession
in accordance with state law must register with DBPR after obtaining a local license. However, persons
holding a local construction license whose job scope does not substantially correspond to the job scope
of a certified contractor or a certified specialty contractor are not required to register with DBPR. 58
Electrical contractors, alarm system contractors, and electrical specialty contractors are certified or
registered under the Electrical Contractors’ Licensing Board (ECLB). Certified contractors can practice
statewide and are licensed and regulated by ECLB. Registered contractors are licensed and regulated
by a local jurisdiction and may only practice within that locality.59
Electrical certified specialty contractors are contractors whose scope of work is limited to a particular
phase of electrical contracting, such as electrical signs. The ECLB creates electrical certified specialty
contractor licenses through rulemaking. Certified electrical specialty contractors can practice statewide.
The ECLB has created the following certified specialty contractor licenses:
Lighting maintenance specialty contractor;
54 S. 489.103, F.S.
55 S. 489.105(a)-(q), F.S.; R. 61G4-15.015-.040, F.A.C.
56 Ss. 489.117 and 489.131, F.S.
57 EDR, supra note 19, at 9.
58 Ss. 489.105 and 489.117(4), F.S.
59 See generally s. 489.505, F.S.
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Sign specialty electrical contractor;
Residential electrical contractor;
Limited energy systems specialty contractor; and
Utility line electrical contractor.60
HB 735 specifically preempted local licensing that is outside the scope of state contractor licensing
provisions. Specifically, it provided that a county or municipality may not require a license for a person
whose job scope does not substantially correspond to a contractor category licensed by the CILB after
July 1, 2023. The bill precluded counties and municipalities from requiring a license for certain job
scopes, including, but not limited to, painting, flooring, cabinetry, interior remodeling, handyman
services, driveway or tennis court installation, decorative stone, tile, marble, granite, or terrazzo
installation, plastering, stuccoing, caulking, canvas awning installation, and ornamental iron installation.
The law also expressly authorized counties and municipalities to issue journeyman licenses in the
plumbing, pipe fitting, mechanical and HVAC trades, as well as, the electrical and alarm system trades,
which is the current practice by counties and municipalities. The licensing of those specific local
journeyman licenses is exempt from preemption.
Since the law was enacted, certain local jurisdictions and local contractors have noted issues with the
law and its enforcement. For example, some local jurisdictions will no longer continue to license certain
types of contractors, even though those contractors perform work that corresponds to a state license
and ch. 489, F.S., provides authority to do so.61
Some have stated that local enforcement agencies are not allowing unlicensed professionals to pull
permits for work that is outside of the scope of contracting, but previously required a local license. 62
However, current law does not require a professional license to pull a permit for such work.
Florida Building Code
In response to the destruction of Hurricane Andrew, in 1998, the Legislature approved a single state
building code and enhanced the oversight role of the state over local code enforcement. In 2000, the
Legislature authorized the implementation of the Building Code (Code), and that first edition replaced
all local codes on March 1, 2002, making it the first statewide building code in the United States.63
The “Florida Building Codes Act” was created to provide a mechanism for the uniform adoption,
updating, interpretation, and enforcement of a single, unified state Code. The Code must be applied,
administered, and enforced uniformly and consistently from jurisdiction to jurisdiction.64
The Florida Building Commission (Building Commission) was statutorily created to implement the
Code. The Building Commission, which is housed within DBPR, is a 19-member technical body made
up of design professionals, contractors, and government experts in various disciplines covered by the
Code. The Building Commission reviews several International Codes published by the International
Code Council, the National Electric Code, and other nationally adopted model codes (model codes) to
determine if the Code needs to be updated and adopts an updated Code every three years. 65
60 S. 489.505(19), & 489.511(4), F.S; Rule 61G6-7.001, F.A.C.
61 Lee County, Contractor Licensing, https://www.leegov.com/dcd/ContLic (last visited Mar. 19, 2023).
62 Patrick Fraser and Gabby Hernandez, WSVN-TVSunbeam Television Corp, 7 News Miami, July 11, 2022, Confusing
state law: Licenses, https://wsvn.com/news/help-me-howard/confusing-state-law-licenses/ (last visited Mar. 19, 2023).
63 Id.
64 See s. 553.72(1), F.S.
65 Ss. 553.73 and 553.74, F.S.
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Local Enforcement of the Florida Building Code
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. 66
Every local government must enforce the Building Code and issue building permits. 67 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, upon the payment of reasonable fees as set
forth in a schedule of fees adopted by the enforcing agency. 68
Areas of Critical State Concern
The Areas of Critical State Concern Program is intended to protect resources and public facilities of
major statewide significance, within designated geographic areas, from uncontrolled development that
would cause substantial deterioration of such resources. The Department of Economic Opportunity
reviews all local development projects within the designated areas and is responsible for reviewing and
approving amendments to comprehensive plans and land development regulations proposed and
adopted by local governments within the designated areas.69
Designated areas of critical state concern are:70
Big Cypress Area (portions of Collier, Miami-Dade, and Monroe Counties).
Green Swamp Area (portions of Polk and Lake Counties).
City of Key West and the Florida Keys Areas (Monroe County).
Apalachicola Bay Area (Franklin County).
Effect of the Bill
The bill extends the expiration date for local licensing without general law authority to January 1, 2024,
from July , 2023.
The bill requires the CILB, by January 1, 2024, to, by rule, establish certified specialty contractor
categories for voluntary licensure for all of the following:
Structural aluminum or screen enclosures.
Marine seawall work.
Marine bulkhead work.
Marine dock work.
Marine pile driving.
Structural masonry.
Structural prestressed, precast concrete work.
Rooftop solar heating installation.
Structural steel.
Window and door installation, including garage door installation and hurricane or windstorm
protection.
Plaster and lath.
66 S. 553.72, F.S.
67 Ss. 125.01(1)(bb), 125.56(1), and 553.80(1), F.S.
68 Ss. 125.56(4)(a) and 553.79(1), F.S.
69 S. 380.05, F.S.; Department of Economic Opportunity, Areas of Critical State Concern Program,
https://floridajobs.org/community-planning-and-development/programs/community-planning-table-of-cont ents/areas-of-
critical-state-concern (last visited Apr. 18, 2023).
70 Id.
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The bill provides that a local government may not require a license issued by the local government or
DBPR for a job scope which does not substantially correspond to the job scope of one of the contractor
or specialty contractor categories.
The bill also prohibits local governments from requiring a license to obtain a permit for a job scope
outside of the practice of contracting, including, but not limited to, painting, flooring, cabinetry, interior
remodeling when the scope of the project does not include a task for which a state license is required,
handyman services, driveway or tennis court installation, decorative stone, tile, marble, granite, or
terrazzo installation, plastering, stuccoing, caulking, canvas awning installation, and ornamental iron
installation.
The bill allows a county that includes an area designated as an area of critical state concern to continue
to offer a license for any job scope which requires a statewide contractor license, if the county imposed
such a licensing requirement before January 1, 2021.
The bill allows a local government to continue to offer a license for fence installation and erection, if the
local government imposed such a licensing requirement before January 1, 2021.
The bill provides that a local government may not require a license as a prerequisite to submit a bid for
public works projects if the work to be performed does not require a license under general law.
The bill provides an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1: Amends s. 163.211, extending an expiration date.
Section 2: Amends s. 489.113, F.S.; relating to specialty contractors.
Section 3: Amends s. 489.117, F.S.; relating to local licensing requirements.
Section 4: Provides an effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
The bill may increase revenues due to an increase of specialty contractors licensed by DBPR.
2. Expenditures:
The bill may have an increase in regulatory expenditures related to creating new specialty licenses
including updates to the department’s licensing document management and online portal and an
increase in workload. These expenditures can be absorbed within existing resources. 71
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
71 Florida Department of Business and Professional Regulation, Agency Analysis of 2023 House Bill 1383, pp. 5 and 7
(Mar. 8, 2023).
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C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Indeterminant. Private sector impacts will fluctuate based on how many citizens apply for the new
licenses and how many local governments require a local license to perform the work outlined 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 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 requires significant rulemaking to create specified specialty licenses. The CILB has authority to
do so.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On April 18, 2023, the State Administration & Technology Appropriations Subcommittee adopted one
amendment and reported the bill favorably as a committee substitute. The committee substitute:
Extended the expiration date for local licensing to January 1, 2024.
Added “plaster and lath” to the list of new specialty licenses.
Allowed counties in an area of critical state concern to continue certain local licensing.
Allowed local licensing for fence installation and erection, under certain circumstances.
Clarified what qualifies as “interior remodeling.”
This analysis is drafted to the committee substitute as passed 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 1383 2023
1 A bill to be entitled
2 An act relating to specialty contractors; amending s.
3 163.211, F.S.; revising the date on which the local
4 government licensing of certain occupations expires;
5 amending s. 489.113, F.S.; requiring the Construction
6 Industry Licensing Board to establish certified
7 specialty contractor categories for voluntary
8 licensure by a specified date; amending s. 489.117,
9 F.S.; prohibiting local governments from imposing new
10 licensing requirements for certain specialty
11 contractors; authorizing a county that includes an
12 area designated as an area of critical state concern
13 to offer a licensure for certain job scopes;
14 authorizing certain local governments to continue to
15 offer a license for fence installation and erection;
16 prohibiting a local government from requiring a
17 license as a prerequisite to submit a bid for public
18 works projects under certain conditions; providing an
19 effective date.
20
21 Be It Enacted by the Legislature of the State of Florida:
22
23 Section 1. Paragraph (a) of subsection (2) of section
24 163.211, Florida Statutes, is amended to read:
25 163.211 Licensing of occupations preempted to state. —
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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 1383 2023
26 (2) PREEMPTION OF OCCUPATIONAL LICENSING TO THE STATE. —The
27 licensing of occupations is expressly preempted to the state,
28 and this section supersedes any local government licensing
29 requirement of occupations with the exception of the following:
30 (a) Any local government that imposed licenses on
31 occupations before January 1, 2021. However, any such local
32 government licensing of occupations expires on January 1, 2024
33 July 1, 2023.
34 Section 2. Subsection (6) of section 489.113, Florida
35 Statutes, is amended to read:
36 489.113 Qualifications for practice; restrictions. —
37 (6)(a) The board shall, by rule, designate those types of
38 specialty contractors which may be certified under this part.
39 The limit of the scope of work and responsibility of a specialty
40 contractor shall be established by the board by rule. However, a
41 certified specialty contractor category established by board
42 rule exists as a voluntary statewide licensing category and does
43 not create a mandatory licensing requirement. Any mandatory
44 statewide construction contracting licensure requirement may
45 only be established through specific statutory provision.
46 (b) By January 1, 2024, the board shall, by rule,
47 establish certified specialty contractor categories for
48 voluntary licensure for all of the following:
49 1. Structural aluminum or screen enclosures.
50 2. Marine seawall work.
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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 1383 2023
51 3. Marine bulkhead work.
52 4. Marine dock work.
53 5. Marine pile driving.
54 6. Structural masonry.
55 7. Structural prestressed, precast concrete work.
56 8. Rooftop solar heating installation.
57 9. Structural steel.
58 10. Window and door installation, including garage door
59 installation and hurricane or windstorm protection.
60 11. Plaster and lath.
61 Section 3. Paragraph (a) of subsection (4) of section
62 489.117, Florida Statutes, is amended to read:
63 489.117 Registration; specialty contractors.—
64 (4)(a)1. A person whose job scope does not substantially
65 correspond to either the job scope of one of the contractor
66 categories defined in s. 489.105(3)(a)-(o), or the job scope of
67 one of the certified specialty contractor categories established
68 by board rule, is not required to register with the board. A
69 local government, as defined in s. 163.211, may not require a
70 person to obtain a license, issued by the local government or
71 the state, for a job scope which does not substantially
72 correspond to the job scope of one of the contractor categories
73 defined in s. 489.105(3)(a)-(o) and (q) or authorized in s.
74 489.1455(1), or the job scope of one of the certified specialty
75 contractor categories established pursuant to s. 489.113(6). A
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CS/HB 1383 2023
76 local government may not require a state or local license to
77 obtain a permit for such job scopes. For purposes of this
78 section, job scopes for which a local government may not require
79 a license include, but are not limited to, painting; flooring;
80 cabinetry; interior remodeling when the scope of the project
81 does not include a task for which a state license is required ;
82 driveway or tennis court installation; handyman services;
83 decorative stone, tile, marble, granite, or terrazzo
84 installation; plastering; stuccoing; caulking; and canvas awning
85 and ornamental iron installation.
86 2. A county that includes an area designated as an area of
87 critical state concern under s. 380.05, may offer a license for
88 any job scope which requires a contractor license under this
89 part, if the county imposed such a licensing requirement before
90 January 1, 2021.
91 3. A local government may continue to offer a license for
92 fence installation and erection if the local government imposed
93 such a licensing requirement before January 1, 2021.
94 4. A local government may not require a license as a
95 prerequisite to submit a bid for public works projects if the
96 work to be performed does not require a license under general
97 law.
98 Section 4. This act shall take effect July 1, 2023.
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COMMERCE COMMITTEE
CS/HB 1383 by Rep. Trabulsy
Specialty Contractors
AMENDMENT SUMMARY
April 24, 2023
Amendment 1 by Rep. Trabulsy (line 32):
• Extends the expiration date for local licensing and the date by which DBPR must create
new specialty licenses to July 1, 2024.
• Adds “structural carpentry” to the list of new specialty licenses.
• Adds “pressure washing” to the list of job scopes that do not require a contracting
license.
• Allows local licensing for veneer work and rooftop painting, coating, and cleaning above
three stories to continue, under certain circumstances.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1383 (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 Trabulsy offered the following:
3
4 Amendment
5 Remove lines 32-91 and insert:
6 government licensing of occupations expires on July 1, 2024 July
7 1, 2023.
8 Section 2. Subsection (6) of section 489.113, Florida
9 Statutes, is amended to read:
10 489.113 Qualifications for practice; restrictions. —
11 (6)(a) The board shall, by rule, designate those types of
12 specialty contractors which may be certified under this part.
13 The limit of the scope of work and responsibility of a specialty
14 contractor shall be established by the board by rule. However, a
15 certified specialty contractor category established by board
16 rule exists as a voluntary statewide licensing category and does
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Page 1 of 4
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1383 (2023)
Amendment No. 1
17 not create a mandatory licensing requirement. Any mandatory
18 statewide construction contracting licensure requirement may
19 only be established through specific statutory provisio n.
20 (b) By July 1, 2024, the board shall, by rule, establish
21 certified specialty contractor categories for voluntary
22 licensure for all of the following:
23 1. Structural aluminum or screen enclosures.
24 2. Marine seawall work.
25 3. Marine bulkhead work.
26 4. Marine dock work.
27 5. Marine pile driving.
28 6. Structural masonry.
29 7. Structural prestressed, precast concrete work.
30 8. Rooftop solar heating installation.
31 9. Structural steel.
32 10. Window and door installation, including garage door
33 installation and hurricane or windstorm protection.
34 11. Plaster and lath.
35 12. Structural carpentry.
36 Section 3. Paragraph (a) of subsection (4) of section
37 489.117, Florida Statutes, is amended to read:
38 489.117 Registration; specialty contractors.—
39 (4)(a)1. A person whose job scope does not substantially
40 correspond to either the job scope of one of the contractor
41 categories defined in s. 489.105(3)(a)-(o), or the job scope of
611989 - h1383-line 32.docx
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Page 2 of 4
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1383 (2023)
Amendment No. 1
42 one of the certified specialty contractor categories established
43 by board rule, is not required to register with the board. A
44 local government, as defined in s. 163.211, may not require a
45 person to obtain a license, issued by the local government or
46 the state, for a job scope which does not substantially
47 correspond to the job scope of one of the contractor categories
48 defined in s. 489.105(3)(a)-(o) and (q) or authorized in s.
49 489.1455(1), or the job scope of one of the certified specialty
50 contractor categories established pursuant to s. 489.113(6). A
51 local government may not require a state or local license to
52 obtain a permit for such job scopes. For purposes of this
53 section, job scopes for which a local government may not require
54 a license include, but are not limited to, painting; flooring;
55 cabinetry; interior remodeling when the scope of the project
56 does not include a task for which a state license is required ;
57 driveway or tennis court installation; handyman services;
58 decorative stone, tile, marble, granite, or terrazzo
59 installation; plastering; pressure washing; stuccoing; caulking;
60 and canvas awning and ornamental iron installation.
61 2. A county that includes an area designated as an area of
62 critical state concern under s. 380.05, may offer a license for
63 any job scope which requires a contractor license under this
64 part, if the county imposed such a licensing requirement before
65 January 1, 2021.
66 3. A local government may continue to offer a license for
611989 - h1383-line 32.docx
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Page 3 of 4
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. CS/HB 1383 (2023)
Amendment No. 1
67 veneer, including aluminum or vinyl gutters, siding, soffit, or
68 fascia; rooftop painting, coating, and cleaning above three
69 stories; or
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Page 4 of 4
CS/HB 1547
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1547 Technology Transparency
SPONSOR(S): Regulatory Reform & Economic Development Subcommittee, McFarland
TIED BILLS: HB 1549 IDEN./SIM. BILLS: CS/SB 262
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform & Economic Development 15 Y, 0 N, As CS Wright Anstead
Subcommittee
2) Commerce Committee Wright Hamon
SUMMARY ANALYSIS
Due to the growth in businesses that collect personal information for the purpose of selling targeted advertising on
the Internet, many countries and states have adopted or updated laws relating to the collection and use of personal
information. Specifically, the European Union, and states like California, Virginia, and Illinois, have enacted data
privacy laws to protect consumers’ personal information.
The bill requires certain businesses to publish a privacy policy for personal information, and defines “personal
information” as information that is linked or reasonably linkable to an identified or identifiable consumer or
household, including biometric information and unique identifiers to the consumer. The term does not include certain
public information, certain employee information, or deidentified or aggregate information.
The bill gives consumers rights related to personal information collected by certain businesses with over $1 billion in
gross annual revenues, including:
The right to access personal information collected;
The right to delete or correct personal information; and
The right to opt-out of the sale or sharing of personal information.
The bill provides that online platforms predominantly accessed by children may not, except under certain situations:
Process personal information of or profile a child.
Collect, sell, share, or retain personal information or geolocation of a child.
Use a child’s personal information for any unstated reason.
Use dark patterns to obtain more information of a child than necessary.
Use collected information to estimate age for any other reason.
The bill allows the Department of Legal Affairs (DLA) to enforce such rights by bringing an action against, and
collecting civil penalties from, online platforms or businesses that violate a consumer’s rights as provided in the bill.
A consumer whose personal information has been sold or shared after opting -out, or has been retained after a
request to delete or correct such information may also bring a cause of action on his or her own behalf.
The bill also adds “biometric information or genetic information” and “geolocation” to the definition of “personal
information” under the Florida Information Protection Act. As such, entities in possession of such information must
take reasonable measures to protect biometric and genetic information and report data breaches.
The bill provides that certain government employees may not request that a social media platform remove content
or accounts and prohibits a governmental entity from working with a social media platform for the purpose of content
moderation, with certain exceptions.
The bill has no fiscal impact on local governments, and an indeterminate fiscal impact on state government.
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 .
STORAGE NAME: h1547b.COM
DATE: 4/23/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Consumer Data Privacy – Current Situation
Florida Deceptive and Unfair Trade Practices Act (FDUTPA)
FDUTPA is a consumer and business protection measure that prohibits unfair methods of competition,
unconscionable acts or practices, and unfair or deceptive acts or practices in trade or commerce. 1
FDUTPA was modeled after the Federal Trade Commission (FTC) Act.2
The DLA or the Office of the State Attorney (SAO) may bring actions on behalf of consumers or
governmental entities when it is a matter of public interest.3 The SAO may enforce violations of
FDUTPA if the violations take place within its jurisdiction. The DLA has enforcement authority when the
violation is multi-jurisdictional, the state attorney defers to the DLA in writing, or the state attorney fails
to act within 90 days after a written complaint is filed.4 In certain circumstances, consumers may also
file suit through private actions.5
The DLA and the SAO have powers to investigate FDUTPA claims, which include: 6
Administering oaths and affirmations;
Subpoenaing witnesses or matter; and
Collecting evidence.
The DLA and the State Attorney, as enforcing authorities, may seek the following remedies:
Declaratory judgments;
Injunctive relief;
Actual damages on behalf of consumers and businesses;
Cease and desist orders; and
Civil penalties of up to $10,000 per willful violation. 7
FDUTPA may not be applied to certain entities in certain circumstances, including:8
• Any person or activity regulated under laws administered by the Office of Insurance Regulation
or the Department of Financial Services; or
• Banks, credit unions, and savings and loan associations regulated by the Office of Financial
Regulation or federal agencies.
Consumer Data
1 Ch. 73-124, L.O.F.; s. 501.202, F.S.
2 D. Matthew Allen, et. al., The Federal Character of Florida’s Deceptive and Unfair Trade Practices Act, 65 U. MIAMI L. R EV. 1083
(Summer 2011).
3 S. 501.207(1)(c) and (2), F.S.; see s. 501.203(2), F.S. (defining “enforcing authority” and referring to the office of the state attorney if a
violation occurs in or affects the judicial circuit under the office’s jurisdiction; or the Department of Legal Affairs if the violation occurs in
more than one circuit; or if the office of the state attorney defers to the department in writing; or fails to act within a s pecified period);
see also David J. Federbush, FDUTPA for Civil Antitrust: Additional Conduct, Party, and Geographic Coverage; State Actions for
Consumer Restitution, 76 FLORIDA BAR JOURNAL 52, Dec. 2002 (analyzing the merits of FDUPTA and the potential for deterrence of
anticompetitive conduct in Florida), availab le at
http://www.floridabar.org/divcom/jn/jnjournal01.nsf/c0d731e03de9828d852574580042ae7a/99 aa165b7d8ac8a485256c8300791ec1!Op
enDocument&Highlight=0,business,Division* (last visited on Mar. 25, 2023).
4 S. 501.203(2), F.S.
5 S. 501.211, F.S.
6 S. 501.206(1), F.S.
7 Ss. 501.207(1), 501.208, and 501.2075, F.S. Civil Penalties are deposited into gene ral revenue. Enforcing authorities may also
request attorney fees and costs of investigation or litigation. S. 501.2105, F.S.
8 S. 501.212(4), F.S.
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As technologies that capture and analyze data proliferate so do businesses' abilities to contextualize
consumer data. Businesses use such data for a range of purposes, including better understanding day-
to-day operations to increase revenue, making informed business decisions, learning about their
customer base, and tailoring marketing strategies.9
From consumer behavior to predictive analytics, companies regularly capture, store, and analyze large
amounts of quantitative and qualitative data on their consumer base. Some companies have built an
entire business model around consumer data, which may include the company are selling personal
information to a third party or creating targeted ads for specific consumers.10
Generally, the types of consumer data that businesses collect are: 11
• Personal data, which includes personally identifiable information, such as Social Security
numbers and gender, as well as identifiable information, including IP address, web browser
cookies, and device IDs;
• Engagement data, which details how consumers interact with a business's website, mobile
apps, social media pages, emails, paid ads, and customer service routes;
• Behavioral data, which includes transactional details such as purchase histories, product usage
information, and qualitative data; and
• Attitudinal data, which encompasses metrics on consumer satisfaction, purchase criteria,
product desirability, and more.
General Data Protection Regulation (European Union)
In 2016, The European Union passed a broad data privacy law that addressed several areas of
consumer rights and data protection called the General Data Protection Regulation (GDPR). 12 The law
became effective in 2018 and unified the regulatory approach to data privacy across the European
Union. The GDPR has since become a model for other data privacy laws in other countries, including
Chile, Japan, Brazil, South Korea, Argentina, and Kenya.13
Under the GDPR, personal data includes anything that allows a person to be identified. Individuals,
organizations, and companies that are either “controllers” or “processors” of personal data are covered
by the law. Controllers exercise overall control of the purposes and means of processing personal data;
whereas processors act on behalf of, and only on the instructions of, the relevant controller. 14
Before processing or collecting any personal data, a business must explicitly request permission from
the subject or person to do so. The request must use clear language and is commonly referred to as a
data “opt-in.”
The GDPR specifically bans the use of lengthy documents filled with legalese to confuse or frustrate
the consumer. Hiding permissions to collect and use data within a contract’s Terms and Conditions or
Privacy Policy sections is not permissible under the GDPR. Consent must be given for a specific
purpose and must be requested separately from other documents and policy statements. 15
The GDPR requires companies to provide, at the data subject's request, confirmation as to whether
personal data pertaining to them is being processed, where it is being processed, and for what
9 Max Freedman, How Businesses Are Collecting Data (And What They’re Doing With It), Business News Daily (Jun. 17, 2020)
https://www.businessnewsdaily.com/10625-businesses-collecting-data.html (last visited Mar. 25, 2023).
10 Id.
11 Id.
12 European Data Protection Supervisor, The History of the General Data Protection Regulation, https://edps.europa.eu/data-
protection/data-protection/legislation/history-general-data-protection-regulation_en (last visited Mar. 25, 2023).
13 Id.
14 Wired, What is the GDPR? The Summary Guide to GDPR Compliance in the UK, https://www.wired.co.uk/article/what-is-gdpr-uk-eu-
legislation-compliance-summary-fines-2018 (last visited Mar. 25, 2023).
15 TechRepublic, GDPR: A Cheat Sheet, https://www.techrepublic.com/article/the-eu-general-data-protection-regulation-gdpr-the-smart-
persons-guide/ (last visited Mar. 25, 2023).
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purpose. A company must also provide, free of charge, a copy of the personal data being processed in
an electronic format to the consumer.16
Under the GDPR, a company must erase all personal data when asked to do so by the subject
consumer. At that point, the company must cease further dissemination of the data and halt all
processing of that consumer’s data. Valid conditions for erasure include situations where the data is no
longer relevant, the original purpose has been satisfied, or a subject consumer withdraws consent.17
The GDPR requires a company to provide mechanisms for a subject to receive any previously provided
personal data in a commonly used and machine-readable format.18
The GDPR allows private rights of action for violations of privacy rights; however, the consumer must
prove any damages in order to receive compensation.19
California Consumer Privacy Act (CCPA) and California Privacy Rights Act (CPRA)
The California Consumer Privacy Act of 2018 (CCPA) was passed to give consumers more control over
the personal information that businesses collect. This landmark law granted new privacy rights for
California consumers, including:20
• The right to know about the personal information a business collects, specifically about the
consumer, and how it is used and shared;
• The right to delete personal information collected with some exceptions;
• The right to opt-out of the sale of personal information; and
• The right to non-discrimination for exercising the CCPA rights.
The CCPA applies to for-profit businesses that do business in California that also meet any of the
following:21
• Have a gross annual revenue of over $25 million;
• Buy, receive, or sell the personal information of 50,000 or more California residents,
households, or devices; or
• Derive 50 percent or more of their annual revenue from selling California residents’ personal
information.
Businesses must give consumers certain notices explaining their privacy practices and provide certain
mechanisms to allow consumers to exercise their rights. 22
The law is largely enforced by the Attorney General, and businesses are subject to fines for violating
the law. A consumer may only bring a cause of action against a business if certain categories of
personal information tied to his or her name have been stolen in a nonencrypted and nonredacted
form.23 As of July 2020, approximately 50 suits had been filed pursuant to this provision. 24
The California Privacy Rights Act (CPRA) passed in 2020 as a statewide proposition, though it is not
effective until January 1, 2023. The CPRA amends and expands the CCPA. Specifically dealing with
certain areas of concern with the CCPA, the CPRA created a new agency to handle complaints and
enforcement. The CPRA changes the CCPA by:25
16 Id.
17
Id.
18 Id.
19 Art. 82 of the GDPR.
20 State of California Department of Justice, Office of the Attorney General, California Consumer Privacy Act (CCPA),
https://oag.ca.gov/privacy/ccpa (last visited Mar. 25, 2023).
21 Cal. Civ. Code s. 1798.140.
22 Cal. Civ. Code ss. 1798.130, 1798.135.
23 Cal. Civ. Code ss. 1798.150, 1798.155.
24 Holland & Knight LLP, Litigating the CCPA in Court, Litigating the CCPA in Court | Insights | Holland & Knight (hklaw.com) (last
visited Mar. 25, 2023).
25 Ballotpedia, California Proposition 24, Consumer Personal Information Law and Agency Initiative (2020),
https://ballotpedia.org/California_Proposition_24,_Consumer_Personal_Information_Law_and_Agency_Initiative_(2020) (last visited
Mar. 25, 2023).
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• Allowing a consumer to:
o Prevent businesses from sharing his or her personal information;
o Correct inaccurate personal information; and
o Limit businesses’ use of “sensitive personal information”—including precise geolocation;
race; ethnicity; religion; genetic data; private communications; sexual orientation; and
specified health information;
• Establishing California Privacy Protection Agency to additionally enforce and implement
consumer privacy laws and impose fines;
• Changing criteria for which businesses must comply with laws by:
o Doubling the CCPA’s threshold number of consumers or households from 50,000 to
100,000, resulting in reduced applicability of the law to small and midsize businesses;
o Expanding applicability to businesses that generate most of their revenue from sharing
personal information, not merely selling it; and
o Extending the definition to joint ventures or partnerships composed of businesses that
each have at least a 40 percent interest.
• Prohibiting businesses’ retention of personal information for longer than reasonably necessary;
• Tripling maximum penalties for violations concerning consumers under age 16; and
• Authorizing civil penalties for theft of consumer login information.
California Age-Appropriate Design Code Act
In 2022, California adopted the California Age-Appropriate Design Code Act (CAADCA), an
amendment to the CPRA,26 legislation modelled on the United Kingdom’s Age Appropriate Design
Code,27 which requires online platforms to adhere to strict default privacy and safety settings that
protect the best interest of children.28 CAADCA covers children under 18 years of age and will be
effective July 1, 2024.29
CAADCA requires certain businesses that provide an online service, product, or feature that is likely to
be accessed by children to comply with several new requirements and restrictions, including:30
Prohibitions on using any personal information that it knows or should know is materially
detrimental to a child’s physical or mental health and/or wellbeing; and
Prohibitions on obscuring user interface features to deliberately defeat consent or manipulate
children into providing unnecessary personal information, otherwise called “dark patterns.”
Such businesses must complete a Data Protection Impact Assessment for any new feature they wish to
offer to the public if it is likely to be accessed by children, which will determine if any dark patterns are
employed, if there is an asymmetrical reward, or if targeted advertisements are deployed in a way that
could harm or exploit children.31
Virginia Consumer Data Protection Act
On March 2, 2021, the Virginia Consumer Data Protection Act (VCDPA) was signed into law. 32 The
VCDPA, which becomes effective January 1, 2023, borrows from CCPA and GDPR.33 Some argue that
26 Cal. Civil Code § 1798.99.28-.35
27 5Rights Foundation, California follows UK lead as child data protection law is passed , https://5rightsfoundation.com/in-
action/california-follows-uk-lead-as-child-data-protection-law-is-passed.html (last visited Mar. 2, 2023).
28
Office of Governor Gavin Newsome, Governor Newsom Signs First-in-Nation Bill Protecting Children’s Online Data and Privacy,
https://www.gov.ca.gov/2022/09/15/governor-newsom-signs-first-in-nation-bill-protecting-childrens-online-data-and-privacy/ (last visited
Mar. 2, 2023).
29 Cal. Civil Code § 1798.99.28-.35
30 Briana Kelly, Nelson Mullins Riley & Scarborough LLP, State of California Passes Bill to Protect Children Online, Jan. 26, 2023,
https://www.nelsonmullins.com/idea_exchange/alerts/privacy_and_data_security_alert/all/state -of-california-passes-bill-to-protect-
children-online (last visited Mar. 2, 2023).
31 Id.
32 JDSupra, Virginia’s Consumer Data Protection Act Has assed: What’s in It?, https://www.jdsupra.com/legalnews/virginia-s-consumer-
data-protection-act-1577777/ (last visited Mar. 25, 2023).
33 Sidley Austin LLP, East Coast Meet West Coast: Enter the Virginia Consumer Data Privacy Protection Act,
https://www.sidley.com/en/insights/newsupdates/2021/03/east-coast-meets-west-coast-enter-the-virginia-consumer-data-protection-act
(last visited Mar. 25, 2023).
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because Virginia was able to benefit from the experience of businesses that have spent the better part
of the last five years implementing GDPR or CCPA, the Virginia law may be a lighter implementation
task for companies.34
Generally, with regard to personal data, the VCDPA grants consumers the right to access, correct,
delete, obtain a copy of, and opt-out of the processing of personal data for the purposes of targeted
advertising.
VCDPA contains exceptions for certain types of data and information governed by federal law. It
provides that the Attorney General has exclusive authority to enforce violations of the law, and does not
provide a private cause of action to a consumer. VCDPA applies to persons conducting business in the
state that either:
• Control or process personal data of at least 100,000 consumers; or
• Derive over 50 percent of gross revenue from the sale of personal data and control or process
personal data of at least 25,000 consumers.35
Colorado Privacy Act
The Colorado Privacy Act (CPA)36 was signed in to law on July 8, 2021, and is effective July 1, 2023.
The law also borrows from the GDPR, CCPA, and VDCPA. 37
Generally, with regard to personal data, the CPA grants a consumer the right to:38
Access data;
Correct data;
Delete data; and
Move data across different services.
Like the CCPA and VCDPA, CPA contains exceptions for certain types of data and information
governed by federal law. It provides that the Attorney General has exclusive authority to enforce
violations of the law, and does not provide a private cause of action to a consumer. CPA applies to
persons conducting business in the state that either: 39
Control or process personal data of 100,000 or more consumers during a calendar year; or
Derive revenue or receive discounts from the sale of personal data and control or process data
of at least 25,000 consumers.
Illinois Biometric Information Privacy Act
In 2008, Illinois adopted the Biometric Information Privacy Act (BIPA), which puts in place safeguards
and procedures relating to the retention, collection, disclosure, and destruction of biometric information
and specifically protects the biometric information of those in the state. It was the first state law in the
U.S. to specifically regulate biometrics.
Under BIPA, a private entity:40
In possession of biometric data (defined as retina or iris scan, fingerprint, voiceprint, or scan of
hand or face geometry) must have a written policy establishing a retention schedule and
guidelines for permanently destroying such data;
34 Id.
35 Virginia’s Legislative Information System, Bill Summary for SB 1392, https://lis.virginia.gov/cgi-bin/legp604.exe?211+sum+SB1392S
(last visited Mar. 25, 2023).
36 C.R.S. 1-6-1301-1313
37 The National Law Review, And Now There are Three…The Colorado Privacy Act, July 16, 2021,
https://www.natlawreview.com/article/and-now-there-are-three-colorado-privacy-
act#:~:text=Colorado%20has%20now%20joined%20California,effect%20on%20July%201%2C%202023. (last visited Mar. 25, 2023).
38 Id.
39 Id.
40 740 Ill. Comp. Stat. 14/10, 14/15 (2008).
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May not collect, capture, purchase, receive through trade, or otherwise obtain biometric data
unless it informs the subject that the data is being stored and the manner of storage, and
receives a written release from the subject;
May not profit from a person’s biometric data;
May not disseminate a person’s biometric data unless the subject consents, is authorized by the
subject, or is required by law or a valid warrant or subpoena; and
Must store, transmit, and protect biometric data with a reasonable standard of care and in a
manner as or more protective as other confidential and sensitive information.
BIPA provides a private cause of action, with relief including: 41
Liquidated damages of $1,000 or actual damages, whichever is greater, against a private entity
that negligently violates BIPA;
Liquidated damages of $5,000 or actual damages, whichever is greater, against a private entity
that intentionally or recklessly violates BIPA;
Reasonable attorneys' fees and costs; and
Other relief, including an injunction, as the court deems appropriate.
Because Illinois granted a private cause of action for violations of BIPA, there have been several
lawsuits claiming damages for privacy and use violations, and Illinois courts have upheld the law. On
January 25, 2019, the Illinois Supreme Court found that an individual does not need to allege an actual
injury or adverse effect, beyond violation of their rights under BIPA, to qualify as an aggrieved party.
Therefore, anyone whose biometric data is affected by a violation of BIPA may seek liquidated
damages or injunctive relief under the Act.42 Court documents also tend to support the notion that an
individual in Illinois has a valid cause of action if his or her biometric data is taken without consent by a
private entity, including out-of-state entities, but it is subject to a finding of fact.43
Additional States
Connecticut and Utah recently signed similar bills to Virginia and Colorado into law. There are also 18
other states that are actively considering data privacy bills. 44
Federal Laws Addressing Data Privacy
While there is no broad federal law addressing data privacy, generally, there are several industry-
specific laws that address the need to keep certain data private or protected.
Health Insurance Portability and Accountability Act
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) 45 is a federal law that required
the creation of national standards to protect sensitive patient health information from being disclosed
without the patient’s consent or knowledge. The U.S. Department of Health and Human Services (HHS)
issued the HIPAA Privacy Rule46 to implement the requirements of HIPAA. The HIPAA Security Rule
protects a subset of information covered by the Privacy Rule.47
HIPAA’s Privacy Rule protects all "individually identifiable health information" held or transmitted by a
covered entity or its business associate, in any form or media, whether electronic, paper, or oral. The
41 740 Ill. Comp. Stat. 14/20 (2008).
42 Rosenb ach v. Six Flags Entertainment Corporation, 2019 IL 123186.
43 Rivera v. Google, Inc., 238 F.Supp.3d 1088 (N.D. Ill. 2017).; In re Faceb ook Biometric Information Privacy Litigation, 185 F.Supp.3d
1155 (N.D. Cal. (2016).; Norb erg v. Shutterfly, Inc., 152 F.Supp.3d 1103 (N.D. Ill. 2015).
44 IAPP, US State Privacy Legislation Tracker, Mar. 17, 2023, https://iapp.org/resources/article/us-state-privacy-legislation-tracker/ (last
visited Mar. 25, 2023).
45 42 U.S.C. s. 1320.
46 45 C.F.R. ss. 160 and 164.
47 Centers for Disease Control and Prevention, Health Insurance Portability and Accountability Act of 1996 (HIPAA),
https://www.cdc.gov/phlp/publications/topic/hipaa.html (last visited Mar. 25, 2023).
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Privacy Rule calls this information "protected health information (PHI)" from being disclosed without the
patient’s consent or knowledge.48
“Individually identifiable health information” is information, including demographic data, that relates to: 49
• The individual’s past, present or future physical or mental health or condition,
• The provision of health care to the individual, or
• The past, present, or future payment for the provision of health care to the individual.
The Privacy Rule excludes from protected health information employment records that a covered entity
maintains in its capacity as an employer and education and certain other records subject to, or defined
in, the Family Educational Rights and Privacy Act.50
The Security Rule applies to the subset of identifiable health information a covered entity creates,
receives, maintains, or transmits in electronic form, and is called “electronic protected health
information” (e-PHI). The Security Rule does not apply to PHI transmitted orally or in writing. To comply
with the Security Rule, all covered entities must do the following: 51
• Ensure the confidentiality, integrity, and availability of all electronic protected health information;
• Detect and safeguard against anticipated threats to the security of the information;
• Protect against anticipated impermissible uses or disclosures; and
• Certify compliance by their workforce.
“Covered entities” who must abide by the Privacy Rule and the Security Rule are: 52
• Health plans;
• Healthcare providers;
• Healthcare clearinghouses; and
• Business associates.
Federal Policy for the Protection of Human Subjects
The Federal Policy for the Protection of Human Subjects, or the “Common Rule,” is a rule promulgated
by the U.S. Food and Drug Administration (FDA).53 The Common Rule governs the ethical conduct of
research involving human subjects. Fifteen federal agencies and departments are party to this rule,
which first came into effect in 1981. The Common Rule has not been substantively updated since
1991.54 Among other requirements, the Common Rule mandates that researchers protect the privacy of
subjects and maintain confidentiality of human subject data. 55
The FDA is a member of the International Council for Harmonisation of Technical Requirements for
Pharmaceuticals for Human Use, which brings together the regulatory authorities and pharmaceutical
industry to develop guidelines for pharmaceutical trials. 56
The Fair Credit Reporting Act
The Fair Credit Reporting Act57 (FCRA) protects information collected by consumer reporting agencies
such as credit bureaus, medical information companies and tenant screening services. Information in a
consumer report cannot be provided to anyone who does not have a purpose specified in the FCRA.
Companies that provide information to consumer reporting agencies also have specific legal
48 Id.
49 45 C.F.R. s. 160.103.
50 20 U.S.C. s. 1232(g).
51 CDC, supra note 47.
52 45 C.F.R. ss. 160.102, 160.103.
53 21 C.F.R. §§ 50, 60.
54 U.S. Department of Health and Human Services, Federal Policy for the Protection of Human Subjects ('Common Rule'), Federal
Policy for the Protection of Human Subjects ('Common Rule | HHS.gov (last visited Mar. 25, 2023).
55 The University of Chicago, University Data Usage Guide, Sensitive Identifiab le Human Sub ject Research Data ,
https://dataguide.uchicago.edu/sensitive-identifiable-human-subject-research-data (last visited Mar. 25, 2023).
56 International Council for Harmonisation, https://www.ich.org/ (last visited Mar. 25, 2023).
57 15 U.S.C. s. 1681.
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obligations, including the duty to investigate disputed information. In addition, users of the information
for credit, insurance, or employment purposes must notify the consumer when an adverse action is
taken on the basis of such reports.58
The Gramm-Leach-Bliley Act
The Gramm-Leach-Bliley Act59 requires financial institutions, such as companies that offer consumers
financial products or services like loans, financial or investment advice, mortgages, or insurance, to
explain their information-sharing practices to their customers and to safeguard sensitive data.60
The law requires that financial institutions protect information collected about individuals; it does not
apply to information collected in business or commercial activities.
In certain situations, consumers of a financial institution have opt-out rights from having their nonpublic
personal information shared with third parties.61
Driver’s Privacy Protection Act
The Driver’s Privacy Protection Act of 1994 (DPPA) 62 protects the privacy of personal information
assembled by state departments of motor vehicles (DMVs).
The DPPA prohibits the release or use by any state DMV (or any officer, employee, or contractor
thereof) of personal information about an individual obtained by the DMV in connection with a motor
vehicle record, subject to certain exceptions, such as for legitimate government needs. It sets penalties
for violations and makes violators liable on a civil action to the individual to whom the released
information pertains.63
DPPA also requires states to obtain permission from individuals before their personal motor vehicle
record may be sold or released to third-party marketers.64
Family Educational Rights and Privacy Act
The Family Educational Rights and Privacy Act (FERPA) 65 protects the privacy of student education
records. The law applies to all schools that receive funds under an applicable program of the U.S.
Department of Education. FERPA gives parents certain rights with respect to their children's education
records. These rights transfer to the student when they reach the a ge of 18 or attend a school beyond the
high school level.
Schools may disclose, without consent, "directory" information such as a student's name, address,
telephone number, date and place of birth, honors and awards, and dates of attendance. However,
schools must tell parents and eligible students about directory information and allow parents and
eligible students a reasonable amount of time to request that the school not disclose directory
information about them. Schools must notify parents and eligible students annually of their rights under
FERPA.66
58 The Federal Trade Commission, Fair Credit Reporting Act, https://www.ftc.gov/enforcement/statutes/fair-credit-reporting-act (last
visited Mar. 25, 2023).
59 15 U.S.C. s. 6801.
60 The Federal Trade Commission, Gramm -Leach-Bliley Act, https://www.ftc.gov/tips -advice/business-center/privacy-and-
security/gramm-leach-bliley-act (last visited Mar. 25, 2023).
61 International Association of Privacy Processionals, In Brief: The Financial Privacy Requirements of the Gramm -Leach-Bliley Act,
https://iapp.org/media/pdf/knowledge_center/brief_requirements_GLBA.pdf (last Mar. 25, 2023).
62 18 U.S.C. s. 2721.
63 Electronic Privacy Information Center, The Drivers Privacy Protection Act (DPPA) and the Privacy of Your State Motor Vehicle
Record, https://epic.org/privacy/drivers/ (last visited Mar. 25, 2023).
64 Id.
65 20 U.S.C. s. 1232(g); 34 C.F.R. s. 99.
66 United States Department of Education, Family Educational Rights and Privacy Act (FERPA),
https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html (last visited Mar. 25, 2023).
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Children’s Online Privacy Protection Act (COPPA)
The Children’s Online Privacy Protection Act (COPPA) 67 and its related rules regulate websites’
collection and use of children’s information. The operator of a website or online service that is directed
to children, or that has actual knowledge that it collects children’s personal information (covered
entities), must comply with requirements regarding data collection and use, privacy policy notifications,
and data security.
A covered entity may not collect a child’s (individual under the age of 13) personal information without
the prior, verifiable consent of his or her parent.68
COPPA requires covered entities to:69
• Give parents direct notice of their privacy policies, including a description of their data collection
and sharing practices;
• Post a clear link to their privacy policies on their home page and at each area of their website
where they collect personal information from children;
• Institute procedures to protect the personal information that they hold;
• Ensure that any third party with which they share collected personal information implements the
same protection procedures; and
• Delete children’s personal information after the purpose for its retention has been fulfilled.
Violations of COPPA are deemed an unfair or deceptive act or practice and may therefore be
prosecuted by the FTC. COPPA also authorizes state attorneys general to enforce violations that affect
residents of their states. There is no criminal prosecution or private right of action provided for under
COPPA.70
Effects of Social Media on Children
Generally, social media use by children can have both positive and negative effects on their health. 71
Some potential safety risks of social media use include:72
Exposure to harmful or inappropriate content.
Exposure to dangerous people.
Cyberbullying.
Oversharing personal information.
Exposure to excessive advertisements.
Privacy concerns, including the collection of data about minors.
Identity theft or being hacked.
Interference with sleep, exercise, homework, or family activities.
While children generally become more attuned to social interactions as they enter adolescence, those
who are frequent, early social media users become particularly sensitive to anticipating social risks and
rewards from their peers, according to a study published in JAMA Pediatrics.73
67 16 C.F.R. pt. 312.
68 15 U.S.C. ss. 6502(a)-(b).
69 See, Federal Trade Commission, General Questions Ab out the COPPA Rule: What is the Children’s Online Privacy Protection Rule? ,
https://www.ftc.gov/tips -advice/business-center/guidance/complying-coppa-frequently-asked-questions-0 (last visited Mar. 25, 2023).
70 Federal Trade Commission, General Questions Ab out the COPPA Rule: COPPA Enforcement, https://www.ftc.gov/tips -
advice/business-center/guidance/complying-coppa-frequently-asked-questions-0 (last visited Mar. 25, 2023).
71 Mayo Clinic Staff, Teens and social media use: What's the impact?, Mayo Foundation for Medical Education and Research,
https://www.mayoclinic.org/healthy-lifestyle/tween-and-teen-health/in-depth/teens-and-social-media-use/art-20474437 (last visited Mar.
29, 2023).
72 Loyola Medicine, Social Media Safety for Kids and Teens, https://www.loyolamedicine.org/about-us/blog/social-media-safety-kids-
teens, (last visited Mar. 29, 2023)
73 Sarah D. Sparks, Preteens’’ Social Media Hab its Could Be Changing Their Brains, Education Week, Jan. 6, 2023,
https://www.edweek.org/leadership/preteens-social-media-habits-could-be-changing-their-brains/2023/01 (last visited Mar. 1, 2023);
Maria T. Maza, BS; Kara A. Fox, MA; Seh-Joo Kwon, BS; et al, Association of Hab itual Checking Behaviors on Social Media With
Longitudinal Functional Brain Development, JAMA Pediatrics, Jan. 3, 2023, https://jamanetwork.com/journals/jamapediatrics/article-
abstract/2799812 (last visited Mar. 29, 2023).
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The researchers found that “habitual” social media users, or those who checked their social feeds 15
times a day or more, responded quicker and more intensely to perceived good or bad emotions from
peers, compared to students who checked once a day or less. The areas of the brain associated with
motivation and cognitive control became more active among the habitual students when expecting
social rewards and punishments. The students who used little social media reacted less strongly to
social cues over the same time period.74
Another study in the Journal of Adolescent Health found that 9- and 10-year-olds who spent hours a
day playing video games or watching online algorithm-based videos had a higher risk of developing
obsessive-compulsive disorders.75
In 2021, the Wall Street Journal reported internal research showing that Instagram conducted online
surveys, diary studies, focus groups and large-scale questionnaires, which showed that 32% of
teenage girls reported that Instagram made them have a worse body image. Of research participants
who experienced suicidal thoughts, 13% of British teens and 6% of American teens directly linked their
interest in suicide to Instagram.76
Recently, U.S. Surgeon General Vivek Murthy remarked that 13 years old is “too early” for children to
use social media, despite most social media companies allowing 13 year olds to use their platforms. In
early adolescence, kids are still “developing their identity, their sense of self,” Murthy said on CNN’s
“Newsroom” on Jan. 29. He stated that “the skewed, and often distorted, environment of social media
often does a disservice to many of those children.” 77
However, social media can allow teens to create online identities, communicate with others, and build
social networks, which can provide teens with valuable support, especially helping those who
experience exclusion. Social media can expose teens to current events, allow them to interact across
geographic barriers, and teach them about a variety of subjects, including healthy behaviors. Also,
social media that is humorous or provides a meaningful connection to peers may help teens avoid
depression.78
In 2022, the Pew Research Center conducted a survey asking teens of their views on social media.
Generally, they credit social media for helping to build stronger friendships and exposing them to a
more diverse world, but they express concern that these sites lead to drama and social pressure. 79
Consumer Data Privacy – Effect of the Bill
Overview
The bill creates s. 501.173, F.S., to establish consumer rights related to personal information, including:
The right to access personal information collected specific to the individual consumer;
The right to delete or correct personal information; and
The right to opt out of the sale of sharing of personal information to third parties.
The bill defines “personal information” as information that identifies, relates to, or describes a particular
consumer or household, or is reasonably capable of being directly or indirectly associated or linked
74 Maria T. Maza, supra note 73.
75 Id; Jason M. Nagata, M.D., M.Sc.;Jonathan Chu; Gabriel Zamora; Caitlin R. Costello, M.D.; Stuart B. Murray, D.Clin.Psych., Ph. D.;
Fiona C. Baker, Ph.D.; Screen Time and Ob sessive-Compulsive Disorder Among Children 9–10 Years Old: A Prospective Cohort
Study; Journal of Adolescent Health, Dec. 12, 2022; https://www.jahonline.org/article/S1054-139X(22)00722-4/fulltext (last visited Mar.
29, 2023).
76 Taylor Hatmaker, Faceb ook knows Instagram harms teens. Now, its plan to open the app to kids looks worse than ever ,
TechCrunch.com, https://techcrunch.com/2021/09/16/facebook-instagram-for-kids-mosseri-wsj-teen-girls/ (last visited Mar. 29, 2023).
77 Lauraine Langreo, EducationWeek, Surgeon General: Kids Under 14 Should Not Use Social Media, Feb. 2, 2023,
https://www.edweek.org/leadership/surgeon-general-kids-under-14-should-not-use-social-media/2023/02 (last visited Mar. 29, 2023).
78 Mayo Clinic, supra note 71.
79 Pew Research Center, Teens’ Social Media Hab its and Experiences, https://www.pewresearch.org/internet/2018/11/28/teens-social-
media-habits-and-experiences/, (last visited Mar. 29, 2023).
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with, a particular consumer or household. The term does not include public information from
government records; or deidentified or aggregate consumer information.
A controller that receives a verifiable consumer request to access, delete, correct, or opt-out must
comply with such consumer request, with certain exceptions. Exceptions include those for:
Certain small businesses;
Businesses which only use personal information to market its own products or services; and
Businesses which only sell or share personal information under certain federal privacy laws.
Controllers may share personal information with a processor, even if a consumer has “opted out,” if the
processor processes information for a controller pursuant to a written contract which limits how the
processor uses such information.
The DLA may bring a FDUTPA action against a controller, processor, third-party, or online platform who
violates the provisions of the bill. As such, a controller, processor, third party or online platform may be
subject to certain civil penalties and legal action.
Exceptions
The bill does not apply to the collection of personal information:
Necessary for the sole purpose of sharing such personal information with a financial service
provider solely to facilitate short term, transactional payment processing for the purchase of
products or services.
That is deidentified or aggregate consumer information.
In compliance with federal, state, or local laws.
In compliance with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons
by federal, state, or local authorities.
In cooperation with law enforcement agencies concerning conduct or activity that the controller,
processor, or third party reasonably and in good faith believes may violate federal, state, or
local law.
Used for the purpose of exercising or defending legal rights, claims, or privileges.
Collected through the controller’s direct interactions with the consumer, if collected in
accordance with the provisions of this section, that is used by such controller, or the processor
that the controller directly contracts with for advertising or marketing services, to advertise or
market products or services that are produced or offered directly by the controller. Such
information may not be sold, shared, or disclosed unless otherwise authorized under the bill.
Used by a controller or processor to advertise or market products or services that are produced
or offered directly by the controller or processor as long as personal information is not sold,
shared, or disclosed to another party outside the consumer’s direct interaction with the controller
or processor.
Collected by a controller of a natural person acting in the role of a job applicant, employee,
owner, director, officer, contractor, volunteer, or intern of the controller, to the extent the
personal information is collected and used solely within the context of the person’s role or
former role with the controller. Personal information includes employee benefit information.
That is the protected health information for purposes of HIPAA and related regulations, and
patient identifying information for purposes of 42 C.F.R. Part 2, established pursuant to 42
U.S.C. s. 290dd-2.
Collected by an entity or business associate governed by the privacy, security, and breach
notification rules issued by the U.S. Department of Health and Human Services in 45 C.F.R.
parts 160 and 164, or a program or a qualified service program defined in 42 C.F.R. part 2, to
the extent the entity, business associate, or program maintains personal information in the same
manner as medical information or protected health information and as long as the entity,
business associate, or program does not use personal information for targeted advertising in
conjunction with third parties and does not sell or share personal information to a third party
unless such sale or sharing is covered by an exception.
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Collected for purposes of research as defined in 45 C.F.R. s. 164.501, conducted in accordance
with the Federal Policy for the Protection of Human Subjects for purposes of 45 C.F.R. part 46,
the good clinical practice guidelines issued by the International Council for Harmonisation of
Technical Requirements for Pharmaceuticals for Human Use, the Federal Policy for the
Protection for Human Subjects for purposes of 21 C.F.R. Parts 50 and 56; or personal
information used or shared in research conducted in accordance with one or more of these
standards.
Created for purposes of the federal Health Care Quality Improvement Act of 1986 and related
regulations, or patient safety work product for purposes of 42 C.F.R. part 3, established
pursuant to 42 U.S.C. s. 299b-21 through 299b-26.
Is deidentified in accordance with 45 C.F.R. part 164 and that is derived from individually
identifiable health information, as described in HIPAA, or identifiable personal information,
consistent with the Federal Policy for the Protection of Human Subjects or the human subject
protection requirements of the FDA.
Used only for public health activities and purposes as described in 45 C.F.R. s. 164.512.
Collected, processed, sold, or disclosed pursuant to the federal Fair Credit Reporting Act, 15
U.S.C. s. 1681 and implementing regulations.
Is nonpublic personal information collected, processed, sold, or disclosed pursuant to the
Gramm-Leach-Bliley Act, 15 U.S.C. s. 6801 et seq. and implementing regulations.
Of a financial institution as defined in the Gramm-Leach-Bliley Act, 15 U.S.C. ss. 6801 et seq. to
the extent the financial institution maintains personal information in the same manner as
nonpublic personal information, and as long as such financial institution does not use personal
information for targeted advertising in conjunction with third parties and does not sell or share
personal information to a third party unless such sale or sharing is covered by an exception.
Collected, processed, sold, or disclosed pursuant to the federal Driver's Privacy Protection Act
of 1994, 18 U.S.C. ss. 2721 et. seq.
Consisting of education information covered by the Family Educational Rights and Privacy Act,
20 U.S.C. s. 1232(g) and 34 C.F.R. part 99.
That is collected as part of public or peer-reviewed scientific or statistical research in the public
interest.
Necessary to fulfill the terms of a written warranty when such warranty was purchased by the
consumer or the product that is warranted was purchased by the consumer. Such information
may not be sold or shared unless otherwise authorized under the bill.
Necessary for a product recall for a product purchased or owned by the consumer conducted in
accordance with federal law. Such information may not be sold or shared unless otherwise
authorized under the bill.
Processed solely for the purpose of independently measuring or reporting advertising or content
performance, reach, or frequency pursuant to a contract with a controller that collected personal
information in accordance with this section. Such information may not be sold or shared unless
otherwise authorized under the bill.
Shared between a manufacturer of a tangible product and authorized third-party distributors or
vendors of the product, as long as such personal information is used solely for advertising,
marketing, or servicing the product that is acquired directly through such manufacturer and such
authorized third-party distributors or vendors. Such personal information may not be sold or
shared unless otherwise authorized under the bill.
Definitions
The bill defines the following terms:
“Aggregate consumer information” means information that relates to a group or category of
consumers, from which the identity of an individual consumer has been removed and is not
reasonably capable of being directly or indirectly associated or linked with, any consumer,
household, or device. The term does not include information about a group or category of
consumers used to facilitate targeted advertising or the display of ads online. The term does not
include personal information that has been deidentified.
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"Biometric information" means an individual's physiological, biological, or behavioral
characteristics, including an individual's deoxyribonucleic acid (DNA), that can be used, singly
or in combination with each other or with other identifying data, to establish individual identity.
The term includes, but is not limited to, imagery of the iris, retina, fingerprint, face, hand, palm,
vein patterns, and voice recordings, from which an identifier template, such as a faceprint, a
minutiae template, or a voiceprint, can be extracted, and keystroke patterns or rhythms, gait
patterns or rhythms, and sleep, health, or exercise data that contain identifying information.
"Collect" means to buy, rent, gather, obtain, receive, or access any personal information
pertaining to a consumer by any means. The term includes, but is not limited to, actively or
passively receiving information from the consumer or by observing the consumer's behavior or
actions.
"Consumer" means a natural person who resides in or is domiciled in this state, however
identified, including by any unique identifier, who is acting in a personal capacity or household
context. The term does not include a natural person acting on behalf of a legal entity in a
commercial or employment context.
"Controller" means:
o A sole proprietorship, partnership, limited liability company, corporation, association, or
legal entity that meets the following requirements:
Is organized or operated for the profit or financial benefit of its shareholders or
owners;
Does business in this state;
Collects personal information about consumers, or is the entity on behalf of
which such information is collected;
Determines the purposes and means of processing personal information about
consumers alone or jointly with others; and
Has global annual gross revenues in excess of $1 billion, as adjusted in January
of every odd-numbered year to reflect any increase in the Consumer Price Index.
Satisfies one of the following:
Derives 50 percent or more of its global annual revenues from providing
targeted advertising or the sale of ads online; or
Operates a consumer smart speaker and voice command component
service with an integrated virtual assistant connected to a cloud
computing service that uses hands-free verbal activation. A consumer
smart speaker and voice command component service does not include a
motor vehicle or speaker or device associated with or connected to a
vehicle.
o Any entity that controls or is controlled by controller. As used in this definition, the term
“control” means:
Ownership of, or the power to vote, more than 50 percent of the outstanding
shares of any class of voting security of a controller;
Control in any manner over the election of a majority of the directors, or of
individuals exercising similar functions; or
The power to exercise a controlling influence over the management of a
company.
“Deidentified” means information that cannot reasonably be used to infer information about or
otherwise be linked to a particular consumer, provided that the controller that possesses the
information:
o Takes reasonable measures to ensure that the information cannot be associated with a
specific consumer;
o Maintains and uses the information in deidentified form and not to attempt to reidentify
the information, except that the controller may attempt to reidentify the information solely
for the purpose of determining whether its deidentification processes satisfy the
requirements of this paragraph; and
o Contractually obligates any recipients of the information to comply with all the provisions
of this paragraph to avoid reidentifying such information.
o Implements business processes to prevent the inadvertent release of deidentified
information.
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“Department” means the Department of Legal Affairs.
“Device” means a physical object associated with a consumer or household capable of directly
or indirectly connecting to the Internet.
“Homepage” means the introductory page of an Internet website and any Internet webpage
where personal information is collected. In the case of a mobile application, the homepage is
the application's platform page or download page, a link within the application, such as the
"About" or "Information" application configurations, or the settings page, and any other location
that allows consumers to review the required notice.
“Household” means a natural person or a group of people in this state who reside at the same
address, share a common device or the same service provided by a controller, and are
identified by a controller as sharing the same group account or unique identifier.
"Personal information" means information that is linked or reasonably linkable to an identified or
identifiable consumer or household, including geolocation, biometric information, and unique
identifiers to the consumer. The term does not include consumer information that is:
o Consumer employment contract information;
o Deidentified or aggregate consumer information; or
o Publicly and lawfully available information reasonably believed to be made available to
the public in a lawful manner without legal restrictions:
From federal, state, or local government records.
By a widely distributed media source.
By the consumer or by someone to whom the consumer disclosed the
information unless the consumer has purposely and effectively restricted
the information to a certain audience on a private account.
“Precise geolocation data" means information from technology, such as global positioning
system level latitude and longitude coordinates or other mechanisms, which directly identifies
the specific location of a natural person with precision and accuracy within a radius of 1,750
feet. The term does not include information generated by the transmission of communications or
any information generated by or connected to advance utility metering infrastructure systems or
equipment for use by a utility.
“Processing” means any operation or set of operations that are performed on personal
information or on sets of personal information, regardless of whether by automated means.
"Processor" means a sole proprietorship, partnership, limited liability company, corporation,
association, or other legal entity that is organized or operated for the profit or financial benefit of
its shareholders or other owners, that processes information on behalf of a controller and to
which the controller discloses a consumer's personal information pursuant to a written contract,
provided that the contract prohibits the entity receiving the information from retaining, using, or
disclosing the personal information for any purpose other than for the specific purpose of
performing the services specified in the contract for the controller, or as authorized.
"Sell" means to sell, rent, release, disclose, disseminate, make available, transfer, or otherwise
communicate orally, in writing, or by electronic or other means, a consumer's personal
information or information that relates to a group or category of consumers by a controller to
another controller or a third party for monetary or other valuable consideration.
"Share" means to share, rent, release, disclose, disseminate, make available, transfer, or
access a consumer's personal information for advertising. The term includes:
o Allowing a third party to advertise to a consumer based on a consumer's personal
information without disclosure of the personal information to the third party.
o Monetary transactions, nonmonetary transactions, and transactions for other valuable
consideration between a controller and a third party for advertising.
“Targeted advertising” means marketing to a consumer or displaying an advertisement to a
consumer when the advertisement is selected based on personal information used to predict
such consumer's preferences or interests.
"Third party" means a person who is not the controller or the processor.
"Unique identifier" means a persistent identifier that can be used to recognize a consumer, a
family, or a device that is linked to a consumer or a family, over time and across different
services, including, but not limited to, a device identifier; an Internet Protocol address; cookies,
beacons, pixel tags, mobile ad identifiers, or similar technology; a customer number, unique
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pseudonym, or user alias; telephone numbers, or other forms of persistent or probabilistic
identifiers that can be used to identify a particular consumer, family, or device that is linked to a
consumer or family. The term "family" means a custodial parent or guardian and any minor
children of whom the parent or guardian has custody, or a household.
"Verifiable consumer request" means a request made by a consumer, by a parent or guardian
on behalf of a consumer who is a minor child, or by a person authorized by the consumer to act
on the consumer's behalf, that the controller can reasonably verify to be the consumer, pursuant
to rules adopted by the department. A verifiable consumer request is presumed to have been
made when requested through an established account using the controller's established
security features to access the account through communication features offered to consumers,
but a controller may not require the consumer to create or have an account with the controller in
order to make a verifiable consumer request.
"Voice recognition feature" means the function of a device which enables the collection,
recording, storage, analysis, transmission, interpretation, or other use of spoken words or other
sounds.
Controller Requirements and Consumer Data Collection Requirements and Responsibilities
The bill provides that a controller may not collect, without the consumer's authorization, a consumer's
precise geolocation data or personal information through the operation of a voice recognition feature.
The bill requires a controller that operates a search engine to provide a consumer with information of
how the controller's search engine algorithm prioritizes or deprioritizes political partisanship or political
ideology in its search results.
The bill requires a controller who collects personal information about a consumer to maintain an online
privacy policy and make such policy available on its homepage. The online privacy policy must include
the following information:
Any Florida-specific consumer privacy rights;
A list of the categories of personal information the controller collects or has collected about
consumers;
The right to request deletion or correction of certain personal information; and
The right to opt-out of the sale or sharing to third parties.
The bill requires a controller that collects personal information from the consumer to, at or before the
point of collection, inform the consumer of the categories of personal information to be collected and
the purposes for which the categories of personal information will be used.
The bill provides that a controller may not collect additional categories of personal information or use
personal information collected for additional purposes without providing the consumer with notice
consistent with the requirements of the bill.
The bill provides that a controller that collects a consumer's personal information must implement and
maintain reasonable security procedures and practices appropriate to the nature of the personal
information to protect the personal information from unauthorized or illegal access, destruction, use,
modification, or disclosure. A controller shall require any processors to implement and maintain the
same or similar security procedures and practices for personal information.
The bill requires a controller to adopt and implement a retention schedule that prohibits the use or
retention of personal information by the controller or processor:
After the satisfaction of the initial purpose for which such information was collected or obtained;
After the expiration or termination of the contract pursuant to which the information was
collected or obtained; or
3 years after the consumer's last interaction with the controller.
The required retention schedule does not apply to personal information reasonably used or retained to
do any of the following:
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• Fulfill the terms of a written warranty or product recall conducted in accordance with federal
law.
• Provide a good or service requested by the consumer, or reasonably anticipate the request of
such good or service within the context of a controller's ongoing business relationship with the
consumer.
• Detect security threats or incidents; protect against malicious, deceptive, fraudulent,
unauthorized, or illegal activity or access; or prosecute of those responsible for such activity or
access.
• Debug to identify and repair errors that impair existing intended functionality.
• Engage in public or peer-reviewed scientific, historical, or statistical research in the public
interest that adheres to all other applicable ethics and privacy laws when the controller's
deletion of the information is likely to render impossible or seriously impair the achievement of
such research, if the consumer has provided informed consent.
• Enable solely internal uses that are reasonably aligned with the expectations of the consumer
based on the consumer's relationship with the controller or that are compatible with the context
in which the consumer provided the information.
• Comply with a legal obligation, including any federal retention laws.
• Protect the controller's interests against existing disputes, legal action, or governmental
investigations.
• Assure the physical security of persons or property.
Consumer’s Right to Request a Copy of Personal Information Collected, Sold, or Shared
The bill provides that a consumer has the right to request that a controller that collects personal
information about the consumer disclose the personal information that has been collected, sold, or
shared by or on behalf of the controller. The bill provides that a consumer has the right to request that a
controller that collects, sells, or shares personal information about the consumer to disclose the
following to the consumer:
• The specific pieces of personal information which have been collected about the consumer.
• The categories of sources from which the consumer's personal information was collected.
• The specific pieces of personal information about the consumer which were sold or shared.
• The third parties to which the personal information about the consumer was sold or shared.
• The categories of personal information about the consumer which were disclosed to a
processor.
The bill requires a controller that collects, sells, or shares personal information about consumers to
disclose the requested information to the consumer upon receipt of a request.
The bill does not require a controller to retain, reidentify, or otherwise link any data that, in the ordinary
course of business is not maintained in a manner that would be considered personal information.
The bill requires a controller to deliver the information required or act on a verifiable consumer request
to a consumer free of charge within 45 calendar days after receiving a verifiable consumer request. The
response period may be extended once by 45 additional calendar days when reasonably necessary,
provided the controller informs the consumer of any such extension within the initial 45-day response
period and the reason for the extension. The information must be delivered in a portable and, to the
extent technically feasible, readily usable format that allows the consumer to transmit the data to
another entity without hindrance. A controller may provide the data to the consumer in a manner that
does not disclose the controller's trade secrets.
A controller is not obligated to provide information to the consumer if the consumer or a person
authorized to act on the consumer's behalf does not provide verification of identity or verification of
authorization to act with the permission of the consumer.
A controller may provide personal information to a consumer at any time, but may not be required to
provide personal information to a consumer more than twice in a 12-month period.
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Such requirements to disclose information do not apply to personal information relating solely to
households.
Consumer Right to Correct or Delete Personal Information
The bill provides that a consumer has the right to request that a controller delete any personal
information about the consumer or about the consumer's child younger than 18 years of age which the
controller has collected from the consumer.
The bill requires a controller that receives a verifiable consumer request to delete the consumer's
personal information to delete the consumer's personal information from its records and direct any
processors to delete such information within 90 calendar days after receipt of the verifiable consumer
request.
A controller or a processor acting pursuant to its contract with the controller may not be required to
comply with a consumer's request to delete the consumer's personal information if it is reasonably
necessary for the controller or processor to maintain the consumer's personal information to do any of
the following:
Complete the transaction for which the personal information was collected.
Fulfill the terms of a written warranty or product recall conducted in accordance with federal law.
Provide a good or service requested by the consumer, or reasonably anticipate the request of
such good or service within the context of a controller's ongoing business relationship with the
consumer, or otherwise perform a contract between the controller and the consumer.
Detect security threats or incidents; protect against malicious, deceptive, fraudulent,
unauthorized, or illegal activity or access; or prosecute those responsible for such activity or
access.
Debug to identify and repair errors that impair existing intended functionality.
Engage in public or peer-reviewed scientific, historical, or statistical research in the public
interest that adheres to all other applicable ethics and privacy laws when the controller's
deletion of the information is likely to render impossible or seriously impair the achievement of
such research, if the consumer has provided informed consent.
Enable solely internal uses that are reasonably aligned with the expectations of the consumer
based on the consumer's relationship with the controller or that are compatible with the context
in which the consumer provided the information.
Comply with a legal obligation, including any state or federal retention laws.
Protect the controller's interests against existing disputes, legal action, or governmental
investigations.
Assure the physical security of persons or property.
The bill allows a consumer to make a request that a controller correct inaccurate personal information
maintained by the controller about the consumer or about the consumer's child younger than 18 years
of age. A controller that receives a verifiable consumer request to correct inaccurate personal
information must use commercially reasonable efforts to correct such inaccurate information as
directed by the consumer and direct any processors to correct such information within 90 calendar days
after receipt of the verifiable consumer request. If a controller maintains a self-service mechanism to
allow a consumer to correct certain personal information, the controller may require the consumer to
correct his or her own personal information through such mechanism. A controller or a processor acting
pursuant to its contract with the controller is not required to comply with a consumer's request to correct
the consumer's personal information if it is reasonably necessary for the controller or processor to
maintain such information to do any of the following:
Complete the transaction for which the personal information was collected.
Fulfill the terms of a written warranty or product recall conducted in accordance with federal law.
Detect security threats or incidents, protect against malicious, deceptive, fraudulent,
unauthorized, or illegal activity or access; or prosecute those responsible for such activity or
access.
Debug to identify and repair errors that impair existing intended functionality.
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Enable solely internal uses that are reasonably aligned with the expectations of the consumer
based on the consumer's relationship with the controller or that are compatible with the context
in which the consumer provided the information.
Comply with a legal obligation, including any state or federal retention laws.
Protect the controller's interests against existing disputes, legal action, or governmental
investigations.
Assure the physical security of persons or property.
Consumer Right to Opt Out of the Sale or Sharing of Personal Information
The bill provides the consumer with the right to opt out at any time and to direct a controller that sells or
shares personal information about the consumer to third parties to not sell or share the consumer's
personal information. This right may be referred to as the right to opt out.
The bill requires that a controller that sells or shares personal information to third parties to provide
notice to consumers that this information may be sold or shared and that consumers have the right to
opt out of the sale or sharing of their personal information.
The bill provides that a controller may not sell or share the personal information of a minor consumer if
the controller has actual knowledge that the consumer is not 18 years of age or older. However, if a
consumer is between 13 and 18, or if the parent or guardian of a consumer who is 12 years of age or
younger, affirmatively authorizes the sale or sharing of such consumer's personal information, then a
controller may sell or share such information. A controller that willfully disregards the consumer's age is
deemed to have actual knowledge of the consumer's age. A controller that complies with the verifiable
parental consent requirements of COPPA is deemed compliant with any obligation to obtain parental
consent.
The bill provides that a controller that has received direction from a consumer opting out of the sale or
sharing of the consumer's personal information is prohibited from selling or sharing the consumer's
personal information beginning 4 calendar days after receipt of such direction, unless the consumer
subsequently provides express authorization for the sale or sharing of the consumer's personal
information.
Form to Opt Out of the Sale or Sharing of Personal Information
The bill requires a controller, in a reasonably accessible format, to provide a clear and conspicuous link
on the controller's Internet homepage, entitled "Do Not Sell or Share My Personal Information," to an
Internet webpage that enables a consumer, a parent or guardian of a minor who is a consumer, or a
person authorized by the consumer, to opt out of the sale or sharing of the consumer's personal
information. A controller may not require a consumer to create an account in order to direct the
controller not to sell or share the consumer's personal information.
A controller may accept a request to opt out received through a user-enabled global privacy control,
such as a browser plug-in or privacy setting, device setting, or other mechanism, which communicates
or signals the consumer's choice to opt out.
A controller must respect the consumer's decision to opt out for at least 12 months before requesting
that the consumer authorize the sale or sharing of the consumer's personal information.
A controller may not use any personal information collected from the consumer in connection with the
submission of the consumer's opt-out request solely for the purposes of complying with the opt-out
request.
The bill allows a consumer to authorize another person to opt out of the sale or sharing of the
consumer's personal information on the consumer's behalf, and a controller must comply with an opt-
out request received from a person authorized by the consumer to act on the consumer's behalf,
pursuant to rules adopted by the DLA.
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Actions Related to Consumers Who Exercise Their Rights
The bill provides that a controller may not deny goods or services to a consumer because the
consumer exercised any of the consumer's rights under the bill.
The bill allows a controller to charge a consumer who exercised any of the consumer's rights a different
price or rate, or provide a different level or quality of goods or services to the consumer, but only if that
difference is:
Reasonably related to the value provided to the controller by the consumer's data, or
Related to a consumer's voluntary participation in a financial incentive program, including a
bona fide loyalty, rewards, premium features, discounts, or club card program offered by the
controller.
A controller may offer financial incentives, including payments to a consumer as compensation, for the
collection, sharing, sale, or deletion of personal information if the consumer gives the controller prior
consent that clearly describes the material terms of the financial incentive program. The consent may
be revoked by the consumer at any time. The bill prohibits a controller from using financial incentive
practices that are unjust, unreasonable, coercive, or usurious in nature.
Contracts and Roles
The bill requires that any contract between a controller and a processor must:
• Prohibit the processor from selling, sharing, retaining, using, or disclosing the personal
information for any purpose that violates this section;
• Prohibit the processor from retaining, using, or disclosing the personal information other than
for the purposes specified in the contract or agreement;
• Prohibit the processor from combining the personal information that the processor receives
from or on behalf of the controller with personal information that the processor receives from or
on behalf of another person or that the processor collects from its own interaction with the
consumer, provided that the processor may combine personal information to perform any
purpose specified in the contract or agreement and such combination is reported to the
controller.
• Govern the processor's personal information processing procedures with respect to processing
performed on behalf of the controller, including processing instructions, the nature and purpose
of processing, the type of information subject to processing, the duration of proces sing, and the
rights and obligations of both the controller and processor;
• Require the processor to return or delete all personal information under the contract to the
controller as requested by the controller at the end of the provision of services, unless retention
of the information is required by law; and
• Upon request of the controller, require the processor to make available to the controller all
personal information in its possession under the contract or agreement.
The bill provides that determining whether a person is acting as a controller or processor with respect
to a specific processing of data is fact-based and depends upon the context in which personal
information is to be processed. The contract between a controller and processor must reflec t their
respective roles and relationships related to handling personal information. A processor that continues
to adhere to a controller's instructions with respect to a specific processing of personal information
remains a processor.
The bill provides that a third party that has collected personal information from a controller in
accordance with this section:
May not sell or share personal information about a consumer unless the consumer is provided
an opportunity by such third party to opt out under this section. Once a third party sells or
shares personal information after providing the opportunity to opt out, the third party becomes a
controller under this section if the entity meets the definition of controller.
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May use such personal information from a controller to advertise or market products or services
that are produced or offered directly by such third party.
The bill requires a processor or third party to require any subcontractor to meet the same obligations of
such processor or third party with respect to personal information.
The bill provides that a processor or third party or any subcontractor thereof who violates any of the
restrictions imposed upon it under the bill is liable or responsible for any failure to comply. A controller
that discloses personal information to a third party or processor in compliance with the bill is not liable
or responsible if the person receiving the personal information uses it without complying with the
restrictions if, provided that at the time of disclosing the personal information, the controller does not
have actual knowledge or reason to believe that the person does not intend to comply.
The bill provides that any provision of a contract or agreement of any kind that waives or limits in any
way a consumer's rights under the bill, including, but not limited to, any right to a remedy or means of
enforcement, is deemed contrary to public policy and is void and unenforceable. This section does not
prevent a consumer from declining to exercise the consumer's rights under the bill.
Enforcement and Implementation
The bill provides that if DLA has reason to believe that any controller, processor, or third party is in
violation of the requirements of the bill, DLA may bring an action against such controller, processor, or
third party for an unfair or deceptive act or practice under FDUTPA. A consumer may not bring an
action under FDUTPA under the bill. DLA is permitted to bring an action against:
• Any person or activity regulated under laws administered by the Office of Insurance Regulation
or the Department of Financial Services; and
• Banks, credit unions, and savings and loan associations regulated by the Office of Financial
Regulation or federal agencies.
In addition to other remedies under FDUTPA, the department may collect a civil penalty of up to
$50,000 per violation of the bill.
Civil penalties may be tripled if the violation involves:
A consumer who the controller, processor or third party has actual knowledge is 18 or younger.
Failure to delete or correct the consumer's personal information after receiving a verifiable
consumer request or directions from a controller to delete or correct such personal information
unless the controller, processor, or third party qualifies for an exception to the requirements to
delete or correct such personal information.
Continuing to sell or share the consumer's personal information after the consumer chooses to
opt out.
After DLA has notified a controller, processor, or third party in writing of an alleged violation, DLA may
grant the controller, processor, or third party a 45-day period to cure the alleged violation. DLA may
consider the number of violations, the substantial likelihood of injury to the public, or the safety of
persons or property when determining whether to grant 45 days to cure. If the controller, processor, or
third party cures the alleged violation to the satisfaction of DLA and provides proof, DLA may not bring
an action for the alleged violation but in its discretion may issue a letter of guidance that indicates that
the controller, processor, or person will not be offered a 45-day cure period for any future violations. If
the controller, processor, or third party fails to cure the violation to the satisfaction of DLA within 45
calendar days, DLA may bring an action against the controller, processor, or third party for the alleged
violation. The bill clarifies that any action brought by DLA may only be brought on behalf of a Florida
consumer.
DLA may adopt rules to implement the bill, including standards for verifiable consumer requests,
enforcement, data security, and authorized persons who may act on a consumer's behalf.
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The bill requires DLA to submit a report by February 1 each year to the President of the Senate and the
Speaker of the House of Representatives describing any actions taken by DLA to enforce the bill. The
report must be viewable on the DLA website and include statistics and relevant information detailing:
The number of complaints received and the categories or types of violations alleged by the
complainant;
The number and type of enforcement actions taken and the outcomes of such actions , including
the amount of penalties issued and collected;
The number of complaints resolved without the need for litigation; and
The status of the development and implementation of rules to implement the bill.
DLA may collaborate and cooperate with other enforcement authorities of the federal government or
other state governments concerning consumer data privacy issues and consumer data privacy
investigations if such enforcement authorities have restrictions governing confidentiality at least as
stringent as the restrictions provided in this section.
The bill provides that liability for a tort, contract claim, or consumer protection claim that is unrelated to
an action brought under the bill does not arise solely from the failure of a controller, processor, or third
party to comply with this section.
The bill provides that the bill does not establish a private cause of action.
The bill allows DLA to employ or use the legal services of outside counsel and the investigative
services of outside personnel to fulfill the obligations of the bill.
Jurisdiction
For purposes of bringing an action under the bill, any controller which collects, shares, or sells the
personal information of a Florida consumer is considered to be both engaged in substantial activities
within Florida, and is operating, conducting, engaging in, or carrying on a business, and doing business
in Florida; and is therefore subject to the jurisdiction of Florida courts.
Preemption
The bill provides that consumer data privacy is a matter of statewide concern and the bill supersedes
all rules, regulations, codes, ordinances, and other laws adopted by a city, county, city and county,
municipality, or local agency regarding the collection, processing, sharing, or sale of consumer
personal information by a controller or processor. The regulation of the collection, processing, sharing,
or sale of consumer personal information by a controller or processor is preempted to the state.
Legal Affairs Revolving Trust Fund
The bill provides that all moneys recovered by the Attorney General for attorney fees, costs, and
penalties in an action for a violation of the bill must be deposited in the fund in the State Treasury the
Legal Affairs Revolving Trust Fund, from which the Legislature may appropriate funds for the purpose
of funding investigation, prosecution, and enforcement by the Attorney General.
Protection of Children in Online Spaces
The bill provides the following definitions for the Protection of Children in Online Spaces Act (PCOSA):
"Child" means a consumer or consumers who are under 18 years of age.
"Dark pattern" means a user interface designed or manipulated with the substantial effect of
subverting or impairing user autonomy, decision-making or choice and includes, but is not
limited to, any practice the FTC refers to as a "dark pattern."
"Online platform" includes social media platforms and online gaming platforms.
"Profiling" means any form of automated processing performed on personal information to
evaluate, analyze or predict personal aspects related to a child’s economic situation, health,
personal preferences, interests, reliability, behavior, location or movements.
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"Substantial harm or privacy risk to children" means the processing of personal information in a
manner that may result in any reasonably foreseeable substantial physical injury, economic
injury, or offensive intrusion into the privacy expectations of a reasonable child under the
circumstances, including:
o Mental health disorders or associated behaviors, including the promotion or
exacerbation of self-harm, suicide, eating disorders, and substance use disorders;
o Patterns of use that indicate or encourage addiction-like behaviors;
o Physical violence, online bullying, and harassment;
o Sexual exploitation, including enticement, sex trafficking, and sexual abuse and
trafficking of online sexual abuse material;
o Promotion and marketing of narcotic drugs, tobacco products, gambling, or alcohol; and
o Predatory, unfair, or deceptive marketing practices, or other financial harms.
The bill prohibits online platforms that provide an online service, product, game, or feature likely to be
predominantly accessed by children from:
Processing the personal information of any child if the online platform has actual knowledge
or willfully disregards that the processing may result in substantial harm or privacy risk to
children.
Profiling a child unless both of the following criteria are met:
o The online platform can demonstrate it has appropriate safeguards in place.
o Either of the following is true:
Profiling is necessary to provide the online service, product, or feature requested
and only with respect to the aspects with which the child is actively and
knowingly engaged.
The online platform can demonstrate a compelling reason that profiling does not
pose a substantial harm or privacy risk to children.
Collecting, selling, sharing, or retaining any personal information that is not necessary to
provide an online service, product, or feature with which a child is actively and knowingly
engaged, unless the online platform can demonstrate a compelling reason that it does not pose
a substantial harm or privacy risk to children.
Use personal information of a child for any reason other than a reason for which that
personal information was collected, unless the online platform can demonstrate a compelling
reason that use of the personal information does not pose a substantial harm or privacy risk to
children.
Collect, sell, or share any precise geolocation data of children unless the collection of that
precise geolocation data is strictly necessary for the online platform to provide the service,
product, or feature requested and then only for the limited time that the collection of precise
geolocation data is necessary.
Collect any precise geolocation data of a child without providing an obvious sign to the child for
the duration of that collection that precise geolocation data is being collected.
Use dark patterns to lead or encourage children to provide personal information beyond what
is reasonably expected to provide that online service, product, game, or feature, to forego
privacy protections, or to take any action that the online platform has actual knowledge or
willfully disregards may result in substantial harm or privacy risk to children.
Use any personal information collected to estimate age or age range for any other purpose or
retain that personal information longer than necessary to estimate age. Such age estimate shall
be proportionate to the risks and data practice of an online service, product, or feature.
The bill provides that if an online platform processes a child’s personal information in a way covered by
PCOSA, the online platform bears the burden of demonstrating that such processing is not in violation.
The bill provides that an online platform that violates PCOSA is subject to the same enforcement
actions used for violations of consumer data privacy provisions. Such enforcement actions are the
exclusive remedy and PCOSA does not establish a private cause of action.
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Com parison of Consumer Data Privacy Law s 80
Provision Colorado Virginia California European Union 2023 HB 1547
Opt-In or Opt-Out Opt-Out Opt-Out Opt-Out Opt-In Opt-Out
of Sale of PI
Opt-In or Opt-Out Opt-In Opt-In Opt-Out Opt-In X
of Sensitive Info.
Processing
🗸 🗸 🗸 X 🗸
Cure Period 60 Days 30 Days 30 Days 45 Days
(Repeals 2025) (AG Discretion)
🗸 🗸
Right to Appeal X X X
Denials or Requests
🗸 🗸 🗸
Express Obligations X X
for Deidentified Data
🗸 🗸 🗸 🗸
Requirement of Data X
Assessments
🗸 🗸
Private Right of X X X
Action
Fine or actual Actual dam ages
damages
Government Attorney General Attorney General Attorney General, Information Attorney General
Enforcement Agency CPPA Commissioner
Government Up to $20,000 per Up to $7,500 per Up to $2,500 per Up to €20 million, or Up to $50,000 per
Enforcement violation violation unintentional 4% of w orldwide violation, w hich can
Penalties violation, and up to annual revenue per be tripled in certain
$7,500 per violation circumstances
intentional violation
Operative Date 07/01/23 01/01/23 01/01/23 05/25/18 07/01/23
Applicability Either, per y ear: Either, per y ear: Meets any of the •Any E.U. business •Global gross annual
Thresholds •Controls/Processes data •Controls/Processes f ollowing: which processes rev enue ov er $1 bil;
of at least 100,000 data of at least 100,000 •Gross ann. rev . ov er consumer data; or and either
For consumers; or consumers; or $25 mill; •Any worldwide •Operates a certain
Business/Controller •Deriv es rev enue f rom •Deriv es ov er 50% of •Processes 100,000 or business that of f ers smart speaker; or
sale of data f rom at least rev . f rom sale of data more consumers; or goods/serv ices to or •Deriv es 50% or more
25,000 consumers f rom at least 25,000 •Deriv es at least 50% monitors behav ior of global annual rev enue
consumers or more rev . f rom data E.U. indiv iduals f rom data sales
Florida Information Protection Act – Current Situation
In 2014, Florida passed the Florida Information Protection Act (FIPA). 81 FIPA requires commercial
covered entities 82 and government entities which hold personal information to take reasonable
measures to protect such information and report data breaches to affected consumers. 83
FIPA defines “personal information” as:
Online account information, such as security questions and answers, email addresses and
passwords;
An individual’s first name or first initial and last name in combination with any one or more of the
following:
o A social security number;
o A driver license or similar identity verification number issued on a government
document;
o A financial account number or credit or debit card number, in combination with any
required security code, access code, or password that is necessary to permit access to
an individual’s financial account;
o Any medical history information; or
80 See JDSupra, Virginia Is For Lovers…Of Data Privacy, https://www.jdsupra.com/legalnews/virginia-is-for-lovers-of-data-privacy-
3879845/ (last visited Mar. 25, 2023).
81 S. 501.171, F.S.; Fla. SB 1524 (2014) (FIPA expanded and updated Florida’s data breach disclosure laws contained in s. 817.5681,
F.S. (2013), which was adopted in 2005 and repealed in 2014.)
82 “Covered entity” means a sole proprietorship, partnership, corporation, trust, estate, cooperative, association, or other com mercial
entity that acquires, maintains, stores, or uses personal information. S. 501.171(1)(b), F.S.
83 Florida Office of the Attorney General, How to Protect Yourself: Data Security,
http://myfloridalegal.com/pages.nsf/Main/53D4216591361BCD85257F77004BE16C (last visited Mar. 25, 2023).
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o An individual’s health insurance identification numbers. 84
Personal information does not include information:
About an individual that has been made publicly available by a federal, state, or local
governmental entity; or
That is encrypted, secured, or modified to remove elements that personally identify an individual
or that otherwise renders the information unusable.85
If a breach of personal information occurs, notice must be given to each individual in Florida whose
personal information was accessed as a result of the breach. If the breach affected 500 or more
individuals in this state, the covered entity must also provide notice to the Department of Legal Affairs
(DLA). If the breach affected more than 1,000 individuals at a single time, credit reporting agencies
must be notified of such breach, with certain exceptions. 86
FIPA expressly does not provide a private cause of action, but does authorize enforcement actions by
DLA under Florida’s Unfair and Deceptive Trade Practices Act (FDUTPA) against covered entities for
any statutory violations.87
In addition to the remedies provided for under FDUTPA an entity that fails to provide the required
notification of a data breach is liable for certain civil penalties assessed on a daily basis. The civil
penalties for failure to notify apply per breach and not per individual affected by the breach.
Florida Information Protection Act – Effect of the Bill
The bill amends s. 501.171, F.S., to define “biometric information” as an individual's physiological,
biological, or behavioral characteristics that can be used, singly or in combination with each other or
with other identifying data, to establish individual identity. The term includes, but is not limited to,
imagery of the iris, retina, fingerprint, face, hand, palm, vein patterns, and voice recordings, from which
an identifier template, such as a faceprint, a minutiae template, or a voiceprint, can be extracted, and
keystroke patterns or rhythms, gait patterns or rhythms, and sleep, health, or exercise data that contain
identifying information.
The bill defines “genetic information” as an individual's deoxyribonucleic acid (DNA).
The bill includes biometric information, genetic information, and geolocation in FIPA’s definition of
“personal information” so that covered entities are required to notify the affected individual, DLA, and
credit reporting agencies of a breach of such information paired with an individual’s first name or first
initial and last name.
The bill allows DLA to bring a FDUTPA action against a covered entity which fails to notify DLA of or an
individual affected by a breach of biometric information, genetic information, or geolocation.
Government Moderation of Social Media Platforms – Current Situation
Many cities and government entities in Florida have official accounts on various social media platforms.
Social media can be an effective platform for reaching citizens in to keep them informed about news
and events in their communities.88
Government entities may not censor a constituent’s post or comment based on views in public
conversation or restrict access to their profile based solely on viewpoints based on certain
84 Id.; s. 501.171(1)(g)1., F.S.
85 S. 501.171(1)(g)2., F.S.
86 S. 501.171(3)-(6), F.S.
87 S. 501.171(9), (10), F.S.; OAG supra note 75.
88 Jessica Marabella, CivicPlus, 7 Ways to Use Social Media with Your Municipal Web site in 2019 ,
https://www.civicplus.com/blog/ce/using-social-media-with-municipal-website (last visited Mar. 25, 2023).
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Constitutional protections. However, certain speech is not protected under the First Amendment, and
generally may be blocked, like threats.89
Government Moderation of Social Media Platforms – Effect of the Bill
The bill defines the following terms:
"Social media platform" means a form of electronic communication through which users create
online communities to share information, ideas, personal messages, and other content.
"Governmental entity" means any state, county, district, authority, or municipal officer,
department, division, board, bureau, commission, or other separate unit of government created
or established by law, including, but not limited to, the Commission on Ethics, the Public Service
Commission, the Office of Public Counsel, and any other public or private agency, person,
partnership, corporation, or business entity acting on behalf of any public agency.
The bill provides that an officer or a salaried employee of a governmental entity may not use his or her
position or any state resources to communicate with a social media platform to request that it remove
content or accounts from the social media platform.
The bill prohibits a governmental entity, or an officer or a salaried employee acting on behalf of a
governmental entity, from initiating or maintaining any agreements or working relationships with a social
media platform for the purpose of content moderation.
However, these restrictions do not apply if the governmental entity or an officer or a salaried employee
acting on behalf of a governmental entity is acting as part of any of the following:
Routine account management of the governmental entity's account.
An attempt to remove content or an account that pertains to the commission of a crime or
violation of public records law.
An investigation or inquiry related to public safety.
The bill provides an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1: Creates s. 112.23, F.S., relating to governmental social media content moderation.
Section 2: Creates s. 501.173, F.S., relating to consumer data privacy rights and requirements.
Section 3: Amends s. 501.171, F.S.; relating to FIPA and triggering requirements.
Section 4: Amends s. 16.53, F.S.; relating to the Legal Affairs Revolving Trust Fund.
Section 5: Provides an effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
There may be an increase in civil penalties collected by DLA.
2. Expenditures:
There may be an increase of regulatory costs to DLA from implementing and enforcing the bill.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
89 ACLU Florida, Government Social Media Censorship, https://www.aclufl.org/en/know-your-rights/government-social-media-
censorship (last visited Mar 25, 2023).
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2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill will require certain businesses in possession of personal information to implement mechanisms
to effectuate the requirements of the bill, and such implementation will have a fiscal impact on such
businesses. However, many of the businesses subject to the bill’s requirements may have already
implemented similar privacy practices based on protections required in other states and countries.
The bill may increase protections provided for personal information that may save consumers the
expense of dealing with stolen personal information used to commit financial crimes. About 15 million
consumers are victims of identity theft or fraud each year. Identity theft and fraud costs consumers
more than $15 billion a year.
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:
Certain provisions may implicate Constitutional analysis based on the U.S. and Florida
Constitutions’ Equal Protection Clause,90 and the U.S. and Florida Constitutions’ protections of the
right to free speech.91
B. RULE-MAKING AUTHORITY:
DLA is given rulemaking authority in the bill to implement the bill.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 28, 2023, the Regulatory Reform & Economic Development Subcommittee adopted three
amendments and reported the bill favorably as a committee substitute. The committee substitute:
Provides that online platforms that are likely to be predominantly accessed by children may not, except
under certain circumstances:
o Process personal information of or profile a child.
o Collect, sell, share, or retain personal information or geolocation of a child.
o Use a child’s personal information for any unstated reason.
o Use dark patterns to obtain more information of a child than necessary.
o Use collected information to estimate age for any other reason.
Provides that if an online platform violates such operating requirements, such platform is liable for
enforcement measures by the Department of Legal Affairs.
Makes conforming changes.
90 U.S. Const. amend. XIV, and Art. I, § 2, Fla. Const.
91 U.S. Const. amend. I, and Art. I, §§ 4-5, Fla. Const.
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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 1547 2023
1 A bill to be entitled
2 An act relating to technology transparency; creating
3 s. 112.23, F.S.; defining terms; prohibiting officers
4 or salaried employees of governmental entities from
5 using their positions or state resources to make
6 certain requests of social media platforms;
7 prohibiting governmental entities from initiating or
8 maintaining agreements or working relationships with
9 social media platforms under a specified circumstance;
10 providing exceptions; creating s. 501.173, F.S.;
11 providing applicability; defining terms; prohibiti ng a
12 controller from collecting certain consumer
13 information without the consumer's authorization;
14 requiring controllers that collect a consumer's
15 personal information to disclose certain information
16 regarding data collection and selling practices to the
17 consumer at or before the point of collection;
18 specifying that such information may be provided
19 through a general privacy policy or through a notice
20 informing the consumer that additional specific
21 information will be provided upon a certain request;
22 prohibiting controllers from collecting additional
23 categories of personal information or using personal
24 information for additional purposes without notifying
25 the consumer; requiring controllers that collect
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26 personal information to implement reasonable security
27 procedures and practices to protect such information;
28 authorizing consumers to request controllers to
29 disclose the specific personal information the
30 controller has collected about the consumer; requiring
31 controllers to make available two or more methods for
32 consumers to request their personal information;
33 requiring controllers to provide such information free
34 of charge within a certain timeframe and in a certain
35 format upon receiving a verifiable consumer request;
36 specifying requirements for third parties with respect
37 to consumer information acquired or used; providing
38 construction; authorizing consumers to request
39 controllers to delete or correct personal information
40 collected by the controllers; providing exceptions;
41 specifying requirements for controllers to comply with
42 deletion or correction requests; authorizing consumers
43 to opt out of third-party disclosure of personal
44 information collected by a controller; prohibiting
45 controllers from selling or disclosing the personal
46 information of consumers younger than a certain age,
47 except under certain circumstances; prohibiting
48 controllers from selling or sharing a consumer's
49 information if the consumer has opted out of such
50 disclosure; prohibiting controllers from taking
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51 certain actions to retaliate against consumers who
52 exercise certain rights; providing applicability;
53 providing that a contract or agreement that waives or
54 limits certain consumer rights is void and
55 unenforceable; authorizing the Department of Legal
56 Affairs to bring an action under the Florida Decep tive
57 and Unfair Trade Practices Act and to adopt rules;
58 requiring the department to submit an annual report to
59 the Legislature; providing report requirements;
60 providing that controllers must have a specified
61 timeframe to cure any violations; providing
62 jurisdiction; declaring that the act is matter of
63 statewide concern; preempting the collection,
64 processing, sharing, and sale of consumer personal
65 information to the state; amending s. 501.171, F.S.;
66 revising the definition of "personal information";
67 creating s. 501.1735, F.S.; providing definitions;
68 providing requirements for online platforms that
69 provide online services, products, games, or features
70 likely to be predominantly accessed by children;
71 providing for enforcement; providing construction;
72 amending s. 16.53, F.S.; requiring that certain
73 attorney fees, costs, and penalties recovered by the
74 Attorney General be deposited in the Legal Affairs
75 Revolving Trust Fund; providing an effective date.
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76
77 Be It Enacted by the Legislature of the State of Florida:
78
79 Section 1. Section 112.23, Florida Statutes, is created to
80 read:
81 112.23 Government-directed content moderation of social
82 media platforms prohibited.—
83 (1) As used in this section, the term:
84 (a) "Governmental entity" means any state, county,
85 district, authority, or municipal officer, department, division,
86 board, bureau, commission, or other separate unit of government
87 created or established by law, including, but not limited to,
88 the Commission on Ethics, the Public Service Commission, the
89 Office of Public Counsel, and any other public or private
90 agency, person, partnership, corporation, or business entity
91 acting on behalf of any public agency.
92 (b) "Social media platform" means a form of electronic
93 communication through which users create online com munities to
94 share information, ideas, personal messages, and other content.
95 (2) An officer or a salaried employee of a governmental
96 entity may not use his or her position or any state resources to
97 communicate with a social media platform to request that it
98 remove content or accounts from the social media platform.
99 (3) A governmental entity, or an officer or a salaried
100 employee acting on behalf of a governmental entity, may not
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101 initiate or maintain any agreements or working relationships
102 with a social media platform for the purpose of content
103 moderation.
104 (4) Subsections (2) and (3) do not apply if the
105 governmental entity or an officer or a salaried employee acting
106 on behalf of a governmental entity is acting as part of any of
107 the following:
108 (a) Routine account management of the governmental
109 entity's account.
110 (b) An attempt to remove content or an account that
111 pertains to the commission of a crime or violation of this
112 state's public records law.
113 (c) An investigation or inquiry related to public safe ty.
114 Section 2. Section 501.173, Florida Statutes, is created
115 to read:
116 501.173 Consumer data privacy.—
117 (1) APPLICABILITY.—This section does not apply to:
118 (a) Personal information collected and transmitted which
119 is necessary for the sole purpose of sharing such personal
120 information with a financial service provider solely to
121 facilitate short term, transactional payment processing for the
122 purchase of products or services.
123 (b) Personal information collected, used, retained, sold,
124 shared, or disclosed as deidentified personal information or
125 aggregate consumer information.
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126 (c) Compliance with federal, state, or local laws.
127 (d) Compliance with a civil, criminal, or regulatory
128 inquiry, investigation, subpoena, or summons by federal, state,
129 or local authorities.
130 (e) Cooperation with law enforcement agencies concerning
131 conduct or activity that the controller, processor, or third
132 party reasonably and in good faith believes may violate federal,
133 state, or local law.
134 (f) Exercising or defending legal rights, claims, or
135 privileges.
136 (g) Personal information collected through the
137 controller's direct interactions with the consumer, if collected
138 in accordance with this section, which is used by the controller
139 or the processor that the controller directly contracts with for
140 advertising or marketing services to advertise or market
141 products or services that are produced or offered directly by
142 the controller. Such information may not be sold, shared, or
143 disclosed unless otherwise authorized under this section.
144 (h) Personal information of a person acting in the role of
145 a job applicant, employee, owner, director, officer, contractor,
146 volunteer, or intern of a controller which is collected by a
147 controller, to the extent the personal information is collected
148 and used solely within the context of the person's role or
149 former role with the controller. For purposes of this paragraph,
150 personal information includes employee benefit information.
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151 (i) Protected health information for purposes of the
152 federal Health Insurance Portability and Accountability Act of
153 1996 and related regulations, and patient identifying
154 information for purposes of 42 C.F.R. part 2, established
155 pursuant to 42 U.S.C. s. 290dd-2.
156 (j) An entity or business associate governed by the
157 privacy, security, and breach notification rules issued by the
158 United States Department of Health and Human Services in 45
159 C.F.R. parts 160 and 164, or a program or a qualified service
160 program as defined in 42 C.F.R. part 2, to the extent the
161 entity, business associate, or program maintains personal
162 information in the same manner as medical information or
163 protected health information as described in paragraph (i), and
164 as long as the entity, business associate, or program does not
165 use personal information for targeted advertising with third
166 parties and does not sell or share personal information to a
167 third party unless such sale or sharing is covered by an
168 exception under this section.
169 (k) Identifiable private information collected for
170 purposes of research as defined in 45 C.F.R. s. 164.501
171 conducted in accordance with the Federal Policy for the
172 Protection of Human Subjects for purposes of 45 C.F.R. part 46,
173 the good clinical practice guidelines issued by the
174 International Council for Harmonisation of Technical
175 Requirements for Pharmaceuticals for Human Use, or the Federal
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176 Policy for the Protection for Human Subjects for purposes of 21
177 C.F.R. parts 50 and 56, or personal information used or shared
178 in research conducted in accordance with one or more of these
179 standards.
180 (l) Information and documents created for purposes of the
181 federal Health Care Quality Improvement Act of 1986 and related
182 regulations, or patient safety work product for purposes of 42
183 C.F.R. part 3, established pursuant to 42 U.S.C. s. 299b -21
184 through 299b-26.
185 (m) Information that is deidentified in accordance with 45
186 C.F.R. part 164 and derived from individually identifiable
187 health information as described in the Health Insurance
188 Portability and Accountability Act of 1996, or identifiable
189 personal information, consistent with the Federal Policy for the
190 Protection of Human Subjects or the human subject protection
191 requirements of the United States Food and Drug Administration.
192 (n) Information used only for public health activities and
193 purposes as described in 45 C.F.R. s. 164.512.
194 (o) Personal information collected, processed, sold, or
195 disclosed pursuant to the federal Fair Credit Reporting Act, 15
196 U.S.C. s. 1681 and implementing regulations.
197 (p) Nonpublic personal information collected, processed,
198 sold, or disclosed pursuant to the Gramm-Leach-Bliley Act, 15
199 U.S.C. s. 6801 et seq., and implementing regulations.
200 (q) A financial institution as defined in the Gramm-Leach-
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201 Bliley Act, 15 U.S.C. s. 6801 et seq., to the extent the
202 financial institution maintains personal information in the same
203 manner as nonpublic personal information as described in
204 paragraph (p), and as long as such financial institution does
205 not use personal information for targeted advertising with third
206 parties and does not sell or share personal information to a
207 third party unless such sale or sharing is covered by an
208 exception under this section.
209 (r) Personal information collected, processed, sold, or
210 disclosed pursuant to the federal Driver's Privacy Protection
211 Act of 1994, 18 U.S.C. s. 2721 et seq.
212 (s) Education information covered by the Family
213 Educational Rights and Privacy Act, 20 U.S.C. s. 1232(g) and 34
214 C.F.R. part 99.
215 (t) Information collected as part of public or peer-
216 reviewed scientific or statistical research in the public
217 interest and which adheres to all other applicable ethics and
218 privacy laws, if the consumer has provided informed consent.
219 Research with personal information must be subjected by the
220 controller conducting the research to additional security
221 controls that limit access to the research data to only those
222 individuals necessary to carry out the research purpose, and
223 such personal information must be subsequently deidentified.
224 (u) Personal information disclosed for the purpose of
225 responding to an alert of a present risk of harm to a person or
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226 property or prosecuting those responsible for that activity.
227 (v) Personal information disclosed when a consumer uses or
228 directs a controller to intentionally disclose information to a
229 third party or uses the controller to intentionally interact
230 with a third party. An intentional interaction occurs when the
231 consumer intends to interact with the third party, by one or
232 more deliberate interactions. Hovering over, muting, pausing, or
233 closing a given piece of content does not constitute a
234 consumer's intent to interact with a third party.
235 (w) An identifier used for a consumer who has opted out of
236 the sale or sharing of the consumer's personal information for
237 the sole purpose of alerting processors and third parties that
238 the consumer has opted out of the sale or sharing of the
239 consumer's personal information.
240 (x) Personal information transferred by a controller to a
241 third party as an asset that is part of a merger, acquisition,
242 bankruptcy, or other transaction in which the third party
243 assumes control of all or part of the controller, provided that
244 the information is used or shared consistently with this
245 section. If a third party materially alters how it uses or
246 shares the personal information of a consumer in a manner that
247 is materially inconsistent with the commitments or promises made
248 at the time of collection, it must provide prior notice of the
249 new or changed practice to the consumer. The notice must be
250 sufficiently prominent and robust to ensure that consumers can
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251 easily exercise choices consistent with this section.
252 (y) Personal information necessary to fulfill the terms of
253 a written warranty when such warranty was purchased by the
254 consumer or the product that is warranted was purchased by the
255 consumer. Such information may not be sold or shared unless
256 otherwise authorized under this section.
257 (z) Personal information necessary for a product recall
258 for a product purchased or owned by the consumer conducted in
259 accordance with federal law. Such information may not be sol d or
260 shared unless otherwise authorized under this section.
261 (aa) Personal information processed solely for the purpose
262 of independently measuring or reporting advertising or content
263 performance, reach, or frequency pursuant to a contract with a
264 controller that collected personal information in accordance
265 with this section. Such information may not be sold or shared
266 unless otherwise authorized under this section.
267 (bb) Personal information shared between a manufacturer of
268 a tangible product and authorized third-party distributors or
269 vendors of the product, as long as such personal information is
270 used solely for advertising, marketing, or servicing the product
271 that is acquired directly through such manufacturer and such
272 authorized third-party distributors or vendors. Such personal
273 information may not be sold or shared unless otherwise
274 authorized under this section.
275 (2) DEFINITIONS.—As used in this section, the term:
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276 (a) "Aggregate consumer information" means information
277 that relates to a group or category of consumers, from which the
278 identity of an individual consumer has been removed and is not
279 reasonably capable of being directly or indirectly associated or
280 linked with any consumer, household, or device. The term does
281 not include information about a group or category of consumers
282 used to facilitate targeted advertising or the display of ads
283 online. The term does not include personal information that has
284 been deidentified.
285 (b) "Biometric information" means an individual's
286 physiological, biological, or behavioral characteristics that
287 can be used, singly or in combination with each other or with
288 other identifying data, to establish individual identity. The
289 term includes, but is not limited to, imagery of the iris,
290 retina, fingerprint, face, hand, palm, vein patterns, and voice
291 recordings, from which an identifier template, such as a
292 faceprint, a minutiae template, or a voiceprint, can be
293 extracted, and keystroke patterns or rhythms, gait patterns or
294 rhythms, and sleep, health, or exercise data that c ontain
295 identifying information.
296 (c) "Collect" means to buy, rent, gather, obtain, receive,
297 or access any personal information pertaining to a consumer by
298 any means. The term includes, but is not limited to, actively or
299 passively receiving information from the consumer or by
300 observing the consumer's behavior or actions.
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301 (d) "Consumer" means a natural person who resides in or is
302 domiciled in this state, however identified, including by any
303 unique identifier, who is acting in a personal capacity or
304 household context. The term does not include a natural person
305 acting on behalf of a legal entity in a commercial or employment
306 context.
307 (e) "Controller" means:
308 1. A sole proprietorship, partnership, limited liability
309 company, corporation, association, or legal entity that meets
310 the following requirements:
311 a. Is organized or operated for the profit or financial
312 benefit of its shareholders or owners;
313 b. Does business in this state;
314 c. Collects personal information about consumers, or is
315 the entity on behalf of which such information is collected;
316 d. Determines the purposes and means of processing
317 personal information about consumers alone or jointly with
318 others;
319 e. Makes in excess of $1 billion in gross revenues, as
320 adjusted in January of every odd-numbered year to reflect any
321 increase in the Consumer Price Index; and
322 f. Satisfies one of the following:
323 (I) Derives 50 percent or more of its global annual
324 revenues from providing targeted advertising or the sale of ads
325 online; or
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326 (II) Operates a consumer smart speaker and voice command
327 component service with an integrated virtual assistant connected
328 to a cloud computing service that uses hands-free verbal
329 activation. For purposes of this sub-sub-subparagraph, a
330 consumer smart speaker and voice command component service does
331 not include a motor vehicle or speaker or device associated with
332 or connected to a vehicle.
333 2. Any entity that controls or is controlled by a
334 controller. As used in this subparagraph, the term "control"
335 means:
336 a. Ownership of, or the power to vote, more than 50
337 percent of the outstanding shares of any class of voting
338 security of a controller;
339 b. Control in any manner over the election of a majority
340 of the directors, or of individuals exercising similar
341 functions; or
342 c. The power to exercise a controlling influence over the
343 management of a company.
344 (f) "Deidentified" means information that cannot
345 reasonably be used to infer information about or otherwise be
346 linked to a particular consumer, provided that the controller
347 that possesses the information:
348 1. Takes reasonable measures to ensure that the
349 information cannot be associated with a specific consumer;
350 2. Maintains and uses the information in deidentified form
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351 and does not attempt to reidentify the information, except that
352 the controller may attempt to reidentify the information solely
353 for the purpose of determining whether its deidentification
354 processes satisfy the requirements of this paragraph;
355 3. Contractually obligates any recipients of the
356 information to comply with all this paragraph to avoid
357 reidentifying such information; and
358 4. Implements business processes to prevent the
359 inadvertent release of deidentified information.
360 (g) "Department" means the Department of Legal Affairs.
361 (h) "Device" means a physical object associated with a
362 consumer or household capable of directly or indirectly
363 connecting to the Internet.
364 (i) "Genetic information" means information about an
365 individual's deoxyribonucleic acid (DNA).
366 (j) "Homepage" means the introductory page of an Internet
367 website and any Internet webpage where personal information is
368 collected. In the case of a mobile application, the homepage is
369 the application's platform page or download page, a link within
370 the application, such as the "About" or "Information"
371 application configurations, or the settings page, and any other
372 location that allows consumers to review the notice required by
373 subsection (7), including, but not limited to, before
374 downloading the application.
375 (k) "Household" means a natural person or a group of
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376 people in this state who reside at the same address, share a
377 common device or the same service provided by a controller, and
378 are identified by a controller as sharing the same group account
379 or unique identifier.
380 (l) "Personal information" means information that is
381 linked or reasonably linkable to an identified or identifiable
382 consumer or household, including biometric information, genetic
383 information, and unique identifiers to the consumer.
384 1. The term includes, but is not limited to, the
385 following:
386 a. Identifiers such as a real name, alias, postal address,
387 unique identifier, online identifier, internet protocol address,
388 email address, account name, social security number, driver
389 license number, passport number, or other similar identifiers.
390 b. Information that identifies, relates to, or describes,
391 or could be associated with, a particular individual, including,
392 but not limited to, a name, signature, social security number,
393 physical characteristics or description, address, location,
394 telephone number, passport number, driver license or state
395 identification card number, insurance policy number, education,
396 employment, employment history, bank account number, credit card
397 number, debit card number, or any other financial information,
398 medical information, or health insurance information.
399 c. Characteristics of protected classifications under
400 state or federal law.
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401 d. Commercial information, including records of personal
402 property, products or services purchased, obtained, or
403 considered, or other purchasing or consuming histories or
404 tendencies.
405 e. Biometric information.
406 f. Internet or other electronic network activity
407 information, including, but not limited to, browsing history,
408 search history, and information regarding a consumer's
409 interaction with an Internet website, application, or
410 advertisement.
411 g. Geolocation data.
412 h. Audio, electronic, visual, thermal, olfactory, or
413 similar information.
414 i. Inferences drawn from any of the information identif ied
415 in this paragraph to create a profile about a consumer
416 reflecting the consumer's preferences, characteristics,
417 psychological trends, predispositions, behavior, attitudes,
418 intelligence, abilities, and aptitudes.
419 2. The term does not include consumer information that is:
420 a. Consumer employment contact information, including a
421 position name or title, employment qualifications, emergency
422 contact information, business telephone number, business
423 electronic mail address, employee benefit information, and
424 similar information used solely in an employment context.
425 b. Deidentified or aggregate consumer information.
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426 c. Publicly and lawfully available information reasonably
427 believed to be made available to the general public in a lawful
428 manner and without legal restrictions:
429 (I) From federal, state, or local government records.
430 (II) By a widely distributed media source.
431 (III) By the consumer or by someone to whom the consumer
432 disclosed the information unless the consumer has purposely and
433 effectively restricted the information to a certain audience on
434 a private account.
435 (m) "Precise geolocation data" means information from
436 technology, such as global positioning system level latitude and
437 longitude coordinates or other mechanisms, which directly
438 identifies the specific location of a natural person with
439 precision and accuracy within a radius of 1,750 feet. The term
440 does not include information generated by the transmission of
441 communications or any information generated by or connected to
442 advance utility metering infrastructure systems or equipment for
443 use by a utility.
444 (n) "Processing" means any operation or set of operations
445 performed on personal information or on sets of personal
446 information, regardless of whether by automated means.
447 (o) "Processor" means a sole proprietorship, partnership,
448 limited liability company, corporation, association, or other
449 legal entity that is organized or operated for the profit or
450 financial benefit of its shareholders or other owners, that
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451 processes information on behalf of a controller and to which the
452 controller discloses a consumer's personal information pursuant
453 to a written contract, provided that the contract prohibits the
454 entity receiving the information from retaining, using, or
455 disclosing the personal information for any purpose other than
456 for the specific purpose of performing the services specified in
457 the contract for the controller, as authorized by this section.
458 (p) "Sell" means to sell, rent, release, disclose,
459 disseminate, make available, transfer, or otherwise communicate
460 orally, in writing, or by electronic or other means, a
461 consumer's personal information or information that relates to a
462 group or category of consumers by a controller to another
463 controller or a third party for monetary or other val uable
464 consideration.
465 (q) "Share" means to share, rent, release, disclose,
466 disseminate, make available, transfer, or access a consumer's
467 personal information for advertising or marketing. The term
468 includes:
469 1. Allowing a third party to advertise or market to a
470 consumer based on a consumer's personal information without
471 disclosure of the personal information to the third party.
472 2. Monetary transactions, nonmonetary transactions, and
473 transactions for other valuable consideration between a
474 controller and a third party for advertising or marketing.
475 (r) "Targeted advertising" means marketing to a consumer
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476 or displaying an advertisement to a consumer when the
477 advertisement is selected based on personal information used to
478 predict such consumer's preferences or interests.
479 (s) "Third party" means a person who is not a controller
480 or a processor.
481 (t) "Unique identifier" means a persistent identifier that
482 can be used to recognize a consumer, a family, or a device that
483 is linked to a consumer or a family, over time and across
484 different services, including, but not limited to, a device
485 identifier; an Internet Protocol address; cookies, beacons,
486 pixel tags, mobile ad identifiers, or similar technology; a
487 customer number, unique pseudonym, or user alias; telephone
488 numbers, or other forms of persistent or probabilistic
489 identifiers that can be used to identify a particular consumer,
490 family, or device that is linked to a consumer or family. As
491 used in this paragraph, the term "family" means a custodial
492 parent or guardian and any minor children of whom the parent or
493 guardian has custody, or a household as defined in paragraph
494 (k).
495 (u) "Verifiable consumer request" means a request made by
496 a consumer, by a parent or guardian on behalf of a consumer who
497 is a minor child, or by a person authorized by the consumer to
498 act on the consumer's behalf, that the controller can reasonably
499 verify to be the consumer, pursuant to rules adopted by the
500 department. A verifiable consumer request is presumed to have
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501 been made when requested through an established account using
502 the controller's established security features to access the
503 account through communication features offered to consumers, but
504 a controller may not require the consumer to create or have an
505 account with the controller in order to make a verifiable
506 consumer request.
507 (v) "Voice recognition feature" means the function of a
508 device which enables the collection, recording, storage,
509 analysis, transmission, interpretation, or other use of spoken
510 words or other sounds.
511 (3) CONTROLLER REQUIREMENTS; CONSUMER DATA COLLECTION
512 REQUIREMENTS AND RESPONSIBILITIES.—
513 (a) A controller may not collect, without the consumer's
514 authorization, a consumer's precise geolocation data or personal
515 information through the operation of a voice recognition
516 feature.
517 (b) A controller that operates a search engine shall
518 provide a consumer with information of how the controller's
519 search engine algorithm prioritizes or deprioritizes political
520 partisanship or political ideology in its search results.
521 (c) A controller that collects personal information about
522 consumers shall maintain an up-to-date online privacy policy and
523 make such policy available on its homepage. The online privacy
524 policy must include the following information:
525 1. Any Florida-specific consumer privacy rights.
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526 2. A list of the types and categories of personal
527 information that the controller collects, sells, or shares, or
528 has collected, sold, or shared, about consumers.
529 3. The consumer's right to request deletion or correction
530 of certain personal information.
531 4. The consumer's right to opt out of the sale or sharing
532 to third parties.
533 (d) A controller that collects personal information from
534 the consumer shall, at or before the point of collection,
535 inform, or direct the processor to inform, consumers of the
536 categories of personal information to be collected and the
537 purposes for which such categories of personal information will
538 be used.
539 (e) A controller may not collect additional categories of
540 personal information or use personal information collected for
541 additional purposes without providing the consumer with notice
542 consistent with this section.
543 (f) A controller that collects a consumer's personal
544 information shall implement and maintain reasonable security
545 procedures and practices appropriate to the nature of the
546 personal information to protect such personal information from
547 unauthorized or illegal access, destruction, use, modification,
548 or disclosure. A controller shall require any processors to
549 implement and maintain the same or similar security procedures
550 and practices for personal information.
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551 (g) A controller shall adopt and implement a retention
552 schedule that prohibits the use or retention of personal
553 information not subject to an exemption by the controller or
554 processor after the satisfaction of the initial purpose for
555 which such information was collected or obtained, after the
556 expiration or termination of the contract pursuant to which the
557 information was collected or obtained, or 2 years after the
558 consumer's last interaction with the controller. This paragraph
559 does not apply to personal information reasonably used or
560 retained to do any of the following:
561 1. Fulfill the terms of a written warranty or product
562 recall conducted in accordance with federal law.
563 2. Provide a good or service requested by the consumer, or
564 reasonably anticipate the request of such good or service within
565 the context of a controller's ongoing business relationship with
566 the consumer.
567 3. Detect security threats or incidents; protect against
568 malicious, deceptive, fraudulent, unauthorized, or illegal
569 activity or access; or prosecute those responsible for such
570 activity or access.
571 4. Debug to identify and repair errors that impair
572 existing intended functionality.
573 5. Engage in public or peer-reviewed scientific,
574 historical, or statistical research in the public interest which
575 adheres to all other applicable ethics and privacy laws when the
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576 controller's deletion of the information is likely to render
577 impossible or seriously impair the achievement of such research,
578 if the consumer has provided informed consent.
579 6. Enable solely internal uses that are reasonably aligned
580 with the expectations of the consumer based on the consumer's
581 relationship with the controller or that are compatible with the
582 context in which the consumer provided the information.
583 7. Comply with a legal obligation, including any state or
584 federal retention laws.
585 8. Protect the controller's interests against existing
586 disputes, legal action, or governmental investigations.
587 9. Assure the physical security of persons or property.
588 (4) CONSUMER RIGHT TO REQUEST COPY OF PERSONAL INFORMATION
589 COLLECTED, SOLD, OR SHARED.—
590 (a) A consumer has the right to request that a controller
591 that collects, sells, or shares personal information about the
592 consumer disclose the following to the consumer:
593 1. The specific pieces of personal information which have
594 been collected about the consumer.
595 2. The categories of sources from which the consumer's
596 personal information was collected.
597 3. The specific pieces of personal information about the
598 consumer which were sold or shared.
599 4. The third parties to which the personal information
600 about the consumer was sold or shared.
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601 5. The categories of personal information about the
602 consumer which were disclosed to a processor.
603 (b) A controller that collects, sells, or shares personal
604 information about a consumer shall disclose the information
605 specified in paragraph (a) to the consumer upon receipt of a
606 verifiable consumer request.
607 (c) This subsection does not require a controller to
608 retain, reidentify, or otherwise link any data that, in the
609 ordinary course of business is not maintained in a manner that
610 would be considered personal information.
611 (d) The controller shall deliver to a consumer the
612 information required under this subsection or act on a request
613 made under this subsection by a consumer free of charge within
614 45 calendar days after receiving a verifiable consumer request.
615 The response period may be extended once by 45 additional
616 calendar days when reasonably necessary, provided the controller
617 informs the consumer of any such extension within the initial
618 45-day response period and the reason for the extension. The
619 information must be delivered in a portable and, to the extent
620 technically feasible, readily usable format that allows the
621 consumer to transmit the data to another entity without
622 hindrance. A controller may provide the data to the consumer in
623 a manner that does not disclose the controller's trade secrets.
624 A controller is not obligated to provide information to the
625 consumer if the consumer or a person authorized to act on the
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626 consumer's behalf does not provide verification of identity or
627 verification of authorization to act with the permission of the
628 consumer.
629 (e) A controller may provide personal information to a
630 consumer at any time, but is not required to provide personal
631 information to a consumer more than twice in a 12-month period.
632 (f) This subsection does not apply to personal information
633 relating solely to households.
634 (5) RIGHT TO HAVE PERSONAL INFORMATION DELETED OR
635 CORRECTED.—
636 (a) A consumer has the right to request that a controll er
637 delete any personal information about the consumer or about the
638 consumer's child younger than 18 years of age which the
639 controller has collected.
640 1. A controller that receives a verifiable consumer
641 request to delete the consumer's personal information shall
642 delete the consumer's personal information from its records and
643 direct any processors to delete such information within 90
644 calendar days after receipt of the verifiable consumer request.
645 2. A controller or a processor acting pursuant to its
646 contract with the controller may not be required to comply with
647 a consumer's request to delete the consumer's personal
648 information if it is reasonably necessary for the controller or
649 processor to maintain the consumer's personal information to do
650 any of the following:
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651 a. Complete the transaction for which the personal
652 information was collected.
653 b. Fulfill the terms of a written warranty or product
654 recall conducted in accordance with federal law.
655 c. Provide a good or service requested by the consumer, or
656 reasonably anticipate the request of such good or service within
657 the context of a controller's ongoing business relationship with
658 the consumer, or otherwise perform a contract between the
659 controller and the consumer.
660 d. Detect security threats or incidents; protect against
661 malicious, deceptive, fraudulent, unauthorized, or illegal
662 activity or access; or prosecute those responsible for such
663 activity or access.
664 e. Debug to identify and repair errors that impair
665 existing intended functionality.
666 f. Engage in public or peer-reviewed scientific,
667 historical, or statistical research in the public interest which
668 adheres to all other applicable ethics and privacy laws when the
669 controller's deletion of the information is likely to render
670 impossible or seriously impair the achievement of such research,
671 if the consumer has provided informed consent.
672 g. Enable solely internal uses that are reasonably aligned
673 with the expectations of the consumer based on the consumer's
674 relationship with the controller or that are compatible with the
675 context in which the consumer provided the information.
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676 h. Comply with a legal obligation, including any state or
677 federal retention laws.
678 i. Protect the controller's interests against existing
679 disputes, legal action, or governmental investigations.
680 j. Assure the physical security of persons or property.
681 (b) A consumer has the right to request that a controller
682 correct inaccurate personal information maintained by the
683 controller about the consumer or about the consumer's child
684 younger than 18 years of age. A controller that receives a
685 verifiable consumer request to correct inaccurate personal
686 information shall use commercially reasonable efforts to correct
687 the inaccurate personal information as directed by the consumer
688 and shall direct any processors to correct such information
689 within 90 calendar days after receipt of the verifiable consumer
690 request. If a controller maintains a self-service mechanism to
691 allow a consumer to correct certain personal information, the
692 controller may require the consumer to correct their own
693 personal information through such mechanism. A controller or a
694 processor acting pursuant to its contract with the controller
695 may not be required to comply with a consumer's request to
696 correct the consumer's personal information if it is reasonably
697 necessary for the controller or processor to maintain the
698 consumer's personal information to do any of the following:
699 1. Complete the transaction for which the personal
700 information was collected.
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701 2. Fulfill the terms of a written warranty or product
702 recall conducted in accordance with federal law.
703 3. Detect security threats or incidents; protect against
704 malicious, deceptive, fraudulent, unauthorized, or illegal
705 activity or access; or prosecute those responsible for suc h
706 activity or access.
707 4. Debug to identify and repair errors that impair
708 existing intended functionality.
709 5. Enable solely internal uses that are reasonably aligned
710 with the expectations of the consumer based on the consumer's
711 relationship with the controller or that are compatible with the
712 context in which the consumer provided the information.
713 6. Comply with a legal obligation, including any state or
714 federal retention laws.
715 7. Protect the controller's interests against existing
716 disputes, legal action, or governmental investigations.
717 8. Assure the physical security of persons or property.
718 (6) RIGHT TO OPT OUT OF THE SALE OR SHARING OF PERSONAL
719 INFORMATION.—
720 (a) A consumer has the right at any time to direct a
721 controller not to sell or share the consumer's personal
722 information to a third party. This right may be referred to as
723 the right to opt out.
724 (b) Notwithstanding paragraph (a), a controller may not
725 sell or share the personal information of a minor consumer if
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726 the controller has actual knowledge that the consumer is not 18
727 years of age or older. However, if a consumer who is between 13
728 and 18 years of age, or if the parent or guardian of a consumer
729 who is 12 years of age or younger, has affirmatively authorized
730 the sale or sharing of such consumer's personal information,
731 then a controller may sell or share such information in
732 accordance with this section. A controller that willfully
733 disregards the consumer's age is deemed to have actual knowledge
734 of the consumer's age. A controller that complies with the
735 verifiable parental consent requirements of the Children's
736 Online Privacy Protection Act, 15 U.S.C. s. 6501 et seq., shall
737 be deemed compliant with any obligation to obtain parental
738 consent.
739 (c) A controller that has received direction from a
740 consumer opting out of the sale or sharing of the consumer's
741 personal information is prohibited from selling or sharing the
742 consumer's personal information beginning 4 calendar days after
743 receipt of such direction, unless the consumer subsequently
744 provides express authorization for the sale or sharing of the
745 consumer's personal information.
746 (7) FORM TO OPT OUT OF SALE OR SHARING OF PERSONAL
747 INFORMATION.—
748 (a) A controller shall:
749 1. In a form that is reasonably accessible to consumers,
750 provide a clear and conspicuous link on the controller's
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751 Internet homepage, entitled "Do Not Sell or Share My Personal
752 Information," to an Internet webpage that enables a consumer, a
753 parent or guardian of a minor who is a consumer, or a person
754 authorized by the consumer, to opt out of the sale or sharing of
755 the consumer's personal information. A controller may not
756 require a consumer to create an account in order to direct the
757 controller not to sell or share the consumer's personal
758 information. A controller may accept a request to opt out
759 received through a user-enabled global privacy control, such as
760 a browser plug-in or privacy setting, device setting, or other
761 mechanism, which communicates or signals the consumer's choice
762 to opt out.
763 2. For consumers who opted out of the sale or sharing of
764 their personal information, respect the consumer's decision to
765 opt out for at least 12 months before requesting that the
766 consumer authorize the sale or sharing of the consumer's
767 personal information.
768 3. Use any personal information collected from the
769 consumer in connection with the submission of the consumer's
770 opt-out request solely for the purposes of complying with the
771 opt-out request.
772 (b) A consumer may authorize another person to opt out of
773 the sale or sharing of the consumer's personal information on
774 the consumer's behalf pursuant to rules adopted by the
775 department.
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776 (8) ACTIONS RELATED TO CONSUMERS WHO EXERCISE PRIVACY
777 RIGHTS.—
778 (a) A controller may not deny goods or services to a
779 consumer because the consumer exercised any of the consumer's
780 rights under this section.
781 (b) A controller may charge a consumer who exercised any
782 of the consumer's rights under this section a different price or
783 rate, or provide a different level or quality of goods or
784 services to the consumer, only if that difference is reasonably
785 related to the value provided to the controller by the
786 consumer's data or is related to a consumer's voluntary
787 participation in a financial incentive program, including a bona
788 fide loyalty, rewards, premium features, discounts, or club card
789 program offered by the controller.
790 (c) A controller may offer financial incentives, including
791 payments to consumers as compensation, for the collection,
792 sharing, sale, or deletion of personal information if the
793 consumer gives the controller prior consent that clearly
794 describes the material terms of the financial incentive program.
795 The consent may be revoked by the consumer at any time.
796 (d) A controller may not use financial incentive practices
797 that are unjust, unreasonable, coercive, or usurious in nature.
798 (9) CONTRACTS AND ROLES.—
799 (a) Any contract or agreement between a controller and a
800 processor must:
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801 1. Prohibit the processor from selling, sharing,
802 retaining, using, or disclosing the personal information for any
803 purpose that violates this section;
804 2. Prohibit the processor from retaining, using, or
805 disclosing the personal information other than for the purposes
806 specified in the contract or agreement;
807 3. Prohibit the processor from combining the personal
808 information that the processor receives from or on behalf of the
809 controller with personal information that the processor receives
810 from or on behalf of another person or that the processor
811 collects from its own interaction with the consumer, provided
812 that the processor may combine personal information to perform
813 any purpose specified in the contract or agreement and such
814 combination is reported to the controller;
815 4. Govern the processor's personal information processing
816 procedures with respect to processing performed on behalf of the
817 controller, including processing instructions, the nature and
818 purpose of processing, the type of information subject to
819 processing, the duration of processing, and the rights and
820 obligations of both the controller and processor;
821 5. Require the processor to return or delete all personal
822 information under the contract to the controller as requested by
823 the controller at the end of the provision of services, unless
824 retention of the information is required by law; and
825 6. Upon request of the controller, require the processor
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826 to make available to the controller all personal information in
827 its possession under the contract or agreement.
828 (b) Determining whether a person is acting as a controller
829 or processor with respect to a specific processing of data is a
830 fact-based determination that depends upon the context in which
831 personal information is to be processed. The contract between a
832 controller and processor must reflect their respective roles and
833 relationships related to handling personal information. A
834 processor that continues to adhere to a controller's
835 instructions with respect to a specific processing of personal
836 information remains a processor.
837 (c) A third party that has collected personal information
838 from a controller in accordance with this section:
839 1. May not sell or share personal information about a
840 consumer unless the consumer is provided an opportunity by such
841 third party to opt out under this section. Once a third party
842 sells or shares personal information after providing the
843 opportunity to opt out, the third party becomes a controller
844 under this section if the entity meets the definition of
845 controller in subsection (2).
846 2. May use such personal information from a controller to
847 advertise or market products or services that are produ ced or
848 offered directly by such third party.
849 (d) A processor or third party must require any
850 subcontractor to meet the same obligations of such processor or
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851 third party with respect to personal information.
852 (e) A processor or third party or any subcontractor
853 thereof who violates any of the restrictions imposed upon it
854 under this section is liable or responsible for any failure to
855 comply with this section. A controller that discloses personal
856 information to a third party or processor in compliance with
857 this section is not liable or responsible if the person
858 receiving the personal information uses it without complying
859 with the restrictions under this section if, provided that at
860 the time of disclosing the personal information, the controller
861 does not have actual knowledge or reason to believe that the
862 person does not intend to comply with this section.
863 (f) Any provision of a contract or agreement of any kind
864 that waives or limits in any way a consumer's rights under this
865 section, including, but not limited to, any right to a remedy or
866 means of enforcement, is deemed contrary to public policy and is
867 void and unenforceable. This section does not prevent a consumer
868 from declining to exercise the consumer's rights under this
869 section.
870 (10) ENFORCEMENT AND IMPLEMENTATION BY THE DEPARTMENT.—
871 (a) Any violation of this section is an unfair and
872 deceptive trade practice actionable under part II of chapter 501
873 solely by the department against a controller, processor, or
874 third party. If the department has reason to believe that any
875 controller, processor, or third party is in violation of this
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876 section, the department, as the enforcing authority, may bring
877 an action against such controller, processor, or third party for
878 an unfair or deceptive act or practice. For the purpose of
879 bringing an action pursuant to this section, ss. 501.211 and
880 501.212 do not apply. In addition to other remedies under part
881 II of chapter 501, the department may collect a civil penalty of
882 up to $50,000 per violation of this section. Civil penalties may
883 be tripled for the following violations:
884 1. Any violation involving a Florida consumer who the
885 controller, processor, or third party has actual knowledge is 18
886 years of age or younger.
887 2. Failure to delete or correct the consumer's perso nal
888 information pursuant to this section after receiving a
889 verifiable consumer request or directions from a controller to
890 delete or correct such personal information unless the
891 controller, processor, or third party qualifies for an exception
892 to the requirements to delete or correct such personal
893 information under this section.
894 3. Continuing to sell or share the consumer's personal
895 information after the consumer chooses to opt out under this
896 section.
897 (b) After the department has notified a controller,
898 processor, or third party in writing of an alleged violation,
899 the department may in its discretion grant a 45-day period to
900 cure the alleged violation. The 45-day cure period does not
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901 apply to a violation of subparagraph (a)1. The department may
902 consider the number and frequency of violations, the substantial
903 likelihood of injury to the public, and the safety of persons or
904 property when determining whether to grant 45 calendar days to
905 cure and the issuance of a letter of guidance. If the violation
906 is cured to the satisfaction of the department and proof of such
907 cure is provided to the department, the department may not bring
908 an action for the alleged violation but in its discretion may
909 issue a letter of guidance that indicates that the controller,
910 processor, or person will not be offered a 45-day cure period
911 for any future violations. If the controller, processor, or
912 third party fails to cure the violation within 45 calendar days,
913 the department may bring an action against the controller,
914 processor, or third party for the alleged violation.
915 (c) Any action brought by the department may be brought
916 only on behalf of a Florida consumer.
917 (d) By February 1 of each year, the department shall
918 submit a report to the President of the Senate and the Speaker
919 of the House of Representatives describing any actions taken by
920 the department to enforce this section. Such report must be made
921 publicly available on the department's website. The report must
922 include statistics and relevant information detailing:
923 1. The number of complaints received and the categories or
924 types of violations alleged by the complainant;
925 2. The number and type of enforcement actions taken and
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926 the outcomes of such actions, including the amount of penalties
927 issued and collected;
928 3. The number of complaints resolved without the need for
929 litigation; and
930 4. The status of the development and implementation of
931 rules to implement this section.
932 (e) The department may adopt rules to implement this
933 section, including standards for verifiable consumer requests,
934 enforcement, data security, and authorized persons who may act
935 on a consumer's behalf.
936 (f) The department may collaborate and cooperate with
937 other enforcement authorities of the federal government or other
938 state governments concerning consumer data privacy issues and
939 consumer data privacy investigations if such enforcement
940 authorities have restrictions governing confidentiality at least
941 as stringent as the restrictions provided in this section.
942 (g) Liability for a tort, contract claim, or consumer
943 protection claim that is unrelated to an action brought under
944 this subsection does not arise solely from the failure of a
945 controller, processor, or third party to comply with this
946 section.
947 (h) This section does not establish a private cause of
948 action.
949 (i) The department may employ or use the legal services of
950 outside counsel and the investigative services of outside
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951 personnel to fulfill the obligations of this section.
952 (11) JURISDICTION.—For purposes of bringing an action
953 pursuant to subsection (10), any person who meets the definition
954 of controller as defined in this section which collects, shares,
955 or sells the personal information of Florida consumers is
956 considered to be both engaged in substantial and not isolated
957 activities within this state and operating, conducting, engaging
958 in, or carrying on a business, and doing business in this state,
959 and is therefore subject to the jurisdiction of the courts of
960 this state.
961 (12) PREEMPTION.—This section is a matter of statewide
962 concern and supersedes all rules, regulations, codes,
963 ordinances, and other laws adopted by a city, county, city and
964 county, municipality, or local agency regarding the collection,
965 processing, sharing, or sale of consumer personal information by
966 a controller or processor. The regulation of the collection,
967 processing, sharing, or sale of consumer personal information by
968 a controller or processor is preempted to the state.
969 Section 3. Paragraph (g) of subsection (1) of section
970 501.171, Florida Statutes, is amended to read:
971 501.171 Security of confidential personal information.—
972 (1) DEFINITIONS.—As used in this section, the term:
973 (g)1. "Personal information" means either of the
974 following:
975 a. An individual's first name or first initial and last
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976 name in combination with any one or more of the following data
977 elements for that individual:
978 (I) A social security number;
979 (II) A driver license or identification card number,
980 passport number, military identification number, or other
981 similar number issued on a government document used t o verify
982 identity;
983 (III) A financial account number or credit or debit card
984 number, in combination with any required security code, access
985 code, or password that is necessary to permit access to an
986 individual's financial account;
987 (IV) Any information regarding an individual's medical
988 history, mental or physical condition, or medical treatment or
989 diagnosis by a health care professional; or
990 (V) An individual's health insurance policy number or
991 subscriber identification number and any unique identifier used
992 by a health insurer to identify the individual;
993 (VI) An individual's biometric information or genetic
994 information as defined in s. 501.173(2); or
995 (VII) Any information regarding an individual's
996 geolocation.
997 b. A user name or e-mail address, in combination with a
998 password or security question and answer that would permit
999 access to an online account.
1000 2. The term does not include information about an
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1001 individual that has been made publicly available by a federal,
1002 state, or local governmental entity. The term also does not
1003 include information that is encrypted, secured, or modified by
1004 any other method or technology that removes elements that
1005 personally identify an individual or that otherwise renders the
1006 information unusable.
1007 Section 4. Section 501.1735, Florida Statutes, is created
1008 to read:
1009 501.1735 Protection of children in online spaces.—
1010 (1) DEFINITIONS.—As used in this section, the term:
1011 (a) "Child" or "children" means a consumer or consumers
1012 who are under 18 years of age.
1013 (b) "Dark pattern" means a user interface designed or
1014 manipulated with the substantial effect of subverting or
1015 impairing user autonomy, decision-making, or choice and
1016 includes, but is not limited to, any practice the Federal Trade
1017 Commission refers to as a dark pattern.
1018 (c) "Online platform" means a social media platform as
1019 defined in s. 112.23(1) or an online gaming platform.
1020 (d) "Personal information" has the same meaning as in s.
1021 501.173(2).
1022 (e) "Precise geolocation data" has the same meaning as in
1023 s. 501.173(2).
1024 (f) "Profile" or "profiling" means any form of automated
1025 processing performed on personal information to evaluate,
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1026 analyze, or predict personal aspects relating to the economic
1027 situation, health, personal preferences, interests, reliability,
1028 behavior, location, or movements of a child.
1029 (g) "Substantial harm or privacy risk to children" means
1030 the processing of personal information in a manner that may
1031 result in any reasonably foreseeable substantial physical
1032 injury, economic injury, or offensive intrusion into the privacy
1033 expectations of a reasonable child under the circumstances,
1034 including:
1035 1. Mental health disorders or associated behaviors,
1036 including the promotion or exacerbation of self-harm, suicide,
1037 eating disorders, and substance abuse disorders;
1038 2. Patterns of use that indicate or encourage addictive
1039 behaviors;
1040 3. Physical violence, online bullying, and harassment;
1041 4. Sexual exploitation, including enticement, sex
1042 trafficking, and sexual abuse and trafficking of online sexual
1043 abuse material;
1044 5. Promotion and marketing of tobacco products, gambling,
1045 alcohol, or narcotic drugs as defined in s. 102 of the
1046 Controlled Substances Act, 21 U.S.C. 802; or
1047 6. Predatory, unfair, or deceptive marketing practices, or
1048 other financial harms.
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1049 (2) An online platform that provides an online service,
1050 product, game, or feature likely to be predominantly accessed by
1051 children may not:
1052 (a) Process the personal information of any child if the
1053 online platform has actual knowledge or willfully disregards
1054 that the processing may result in substantial harm or privacy
1055 risk to children.
1056 (b) Profile a child unless both of the following criteria
1057 are met:
1058 1. The online platform can demonstrate it has appropriate
1059 safeguards in place to protect children.
1060 2.a. Profiling is necessary to provide the online service,
1061 product, or feature requested and only with respect to the
1062 aspects of the online service, product, or feature with which
1063 the child is actively and knowingly engaged; or
1064 b. The online platform can demonstrate a compelling reason
1065 that profiling does not pose a substantial harm or privacy risk
1066 to children.
1067 (c) Collect, sell, share, or retain any personal
1068 information that is not necessary to provide an online service,
1069 product, or feature with which a child is actively and knowingly
1070 engaged unless the online platform can demonstrate a compelling
1071 reason that collecting, selling, sharing, or retaining the
1072 personal information does not pose a substantial harm or privacy
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1073 risk to children likely to routinely access the online service,
1074 product, or feature.
1075 (d) Use personal information of a child for any reason
1076 other than the reason for which the personal information was
1077 collected, unless the online platform can demonstrate a
1078 compelling reason that the use of the personal information does
1079 not pose a substantial harm or privacy risk to children.
1080 (e) Collect, sell, or share any precise geolocation data
1081 of children unless the collection of the precise geolocation
1082 data is strictly necessary for the online platform to provide
1083 the service, product, or feature requested and then only for the
1084 limited time that the collection of the precise geolocation data
1085 is necessary to provide the service, product, or feature.
1086 (f) Collect any precise geolocation data of a child
1087 without providing an obvious sign to the child for the duration
1088 of the collection that the precise geolocation data is being
1089 collected.
1090 (g) Use dark patterns to lead or encourage children to
1091 provide personal information beyond what is reasonably expected
1092 to provide that online service, product, game, or feature; to
1093 forego privacy protections; or to take any action that the
1094 online platform has actual knowledge or willfully disregards may
1095 result in substantial harm or privacy risk to children.
1096 (h) Use any personal information collected to estimate age
1097 or age range for any other purpose or retain that personal
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1098 information longer than necessary to estimate age. The age
1099 estimate must be proportionate to the risks and data practice of
1100 an online service, product, or feature.
1101 (3) If an online platform processes personal information
1102 pursuant to subsection (2), the online platform bears the burden
1103 of demonstrating that such processing does not violate
1104 subsection (2).
1105 (4) An online platform that violates subsection (2) is
1106 subject to enforcement actions under s. 501.173 and such
1107 enforcement actions are the exclusive remedy. This section does
1108 not establish a private cause of action.
1109 Section 5. Subsection (1) of section 16.53, Florida
1110 Statutes, is amended, and subsection (8) is added to that
1111 section, to read:
1112 16.53 Legal Affairs Revolving Trust Fund.—
1113 (1) There is created in the State Treasury the Legal
1114 Affairs Revolving Trust Fund, from which the Legislature may
1115 appropriate funds for the purpose of funding investigation,
1116 prosecution, and enforcement by the Attorney General of the
1117 provisions of the Racketeer Influenced and Corrupt Organization
1118 Act, the Florida Deceptive and Unfair Trade Practices Act, the
1119 Florida False Claims Act, or state or federal antitrust laws, or
1120 s. 501.173.
1121 (8) All moneys recovered by the Attorney General for
1122 attorney fees, costs, and penalties in an action for a violation
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1123 of s. 501.173 must be deposited in the fund.
1124 Section 6. This act shall take effect July 1, 2023.
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HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1549 Pub. Rec./Investigations by the Department of Legal Affairs
SPONSOR(S): Regulatory Reform & Economic Development Subcommittee, McFarland
TIED BILLS: CS/HB 1547 IDEN./SIM. BILLS: CS/SB 1648
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform & Economic Development 15 Y, 0 N, As CS Wright Anstead
Subcommittee
2) State Affairs Committee 19 Y, 0 N Poreda Williamson
3) Commerce Committee Wright Hamon
SUMMARY ANALYSIS
As technologies that capture and analyze data proliferate, so, too, do businesses' abilities to contextualize
consumer data. Businesses use it for a range of purposes. The European Union, California, and a few other
states have enacted data privacy regulations to protect consumers’ personal information and give consumers
more control over how their information is used.
CS/HB 1547, to which this bill is linked, gives certain consumer rights related to personal information, including
the right to access personal information collected about them; the right to delete or correct their personal
information; the right to opt-out of the sale or sharing of their personal information to third parties; and online
platform protections for children. The Department of Legal Affairs (DLA), upon belief that any controller,
processor, third party, or online platform is in violation of CS/HB 1547’s provisions, may bring an action under
the Florida Unfair or Deceptive Trade Practices Act against a controller, processor, or third party.
This bill, which is linked to the passage of CS/HB 1547, provides that all information received by DLA pursuant
to a notification or investigation by DLA or a law enforcement agency of a violation is confidential and exempt
from public record requirements. The bill provides that the information may be released by DLA during an
active investigation:
• In the furtherance of its official duties and responsibilities;
• For print, publication, or broadcast to notify the public of a data breach; or
• To another governmental entity in the furtherance of the receiving entity’s official duties and
responsibilities.
Once an investigation is completed, the following information remains confidential and exempt:
• All information to which another public records exemption applies;
• Personal information;
• A computer forensic report;
• Information that would otherwise reveal weaknesses in data security; and
• Information that would otherwise disclose proprietary information.
The bill provides that the public record exemption 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.
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 .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
Public Records
Article I, s. 24(a) of the State Constitution sets forth the state’s public policy regarding access to
government records. This section guarantees every person a right to inspect or copy any public record
of the legislative, executive, and judicial branches of government. 1 The Legislature, however, may
provide by general law for the exemption of records from these 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
Public policy regarding access to government records is also addressed by statute. Section 119.07(1),
F.S., guarantees every person a right to inspect and copy any state, county, or municipal record, unless
the record is exempt.3 Furthermore, the Open Government Sunset Review Act4 provides that a public
record exemption may be created or maintained only if it serves an identifiable public purpose that is
sufficiently compelling to override the strong public policy of open government and that cannot be
accomplished without the exemption.5 An identifiable public purpose is served if the exemption meets
one of the following purposes:
Allows the state or its political subdivisions to effectively and efficiently administer a
governmental program, which administration would be significantly impaired without the
exemption;
Protects 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
Protects trade or business secrets.6
The Open Government Sunset Review Act requires the automatic repeal of a newly created exemption
on October 2nd of the fifth year after creation or substantial amendment, unless the Legislature
reenacts the exemption.7
Technology Transparency
As technologies that capture and analyze data proliferate, so, too, do businesses' abilities to
contextualize consumer data. Businesses use it for a range of purposes, including better understanding
day-to-day operations, making more informed business decisions and learning about their customers. 8
The European Union, several other countries, California, and a few other states have enacted data
privacy regulations to protect such data and give consumers more control over how their information is
used. Florida does not have a broad data privacy law, but there is a law which governs what actions
must be taken by certain government and business entities in the event of a data breach of personal
information.9
1 Art. I, s. 24(a), FLA. C ONST.
2 Art. I, s. 24(c), FLA. C ONST.
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. See s. 119.011(8), F.S.
4 S. 119.15, F.S.
5 S. 119.15(6)(b), F.S.
6 Id.
7 S. 119.15(3), F.S.
8 Max Freedman, How Businesses Are Collecting Data (And What They’re Doing With It), Business News Daily (Jun. 17, 2020)
https://www.businessnewsdaily.com/10625-businesses-collecting-data.html. (last visited Mar. 31, 2023)
9 S. 501.171, F.S.
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Department of Legal Affairs
The Office of the Attorney General, also known as the Department of Legal Affairs (DLA), provides a
wide variety of legal services, including defending the state in civil litigation cases, representing the
people of Florida in criminal appeals in state and federal courts, protecting rights of children,
consumers, and victims through its various protection programs, and investigating and litigating against
businesses that seek to limit competition and defraud taxpayers. 10
CS/HB 1547
CS/HB 1547, to which this bill is linked, gives certain consumer rights related to personal information,
including:
• The right to access personal information collected on them by a controller;
• The right to delete or correct their personal information; and
• The right to opt-out of the sale or sharing of their personal information to third parties.
A “controller” is a for profit entity doing business in Florida that:
Collects and controls personal information;
Has global annual gross revenues in excess of $1 billion; and
Satisfies one of the following thresholds:
o Derives 50 percent or more of its global annual revenues from providing targeted
advertising or the sale of ads online; or
o Operates a consumer smart speaker and voice command component service with an
integrated virtual assistant connected to a cloud computing service that uses hands-free
verbal activation. A consumer smart speaker and voice command component service
does not include a motor vehicle or speaker or device associated with or connected to a
vehicle.
Under the bill, personal information is information that identifies, relates to, or describes a particular
consumer or household, or is reasonably capable of being directly or indirectly associated or linked
with, a particular consumer or household. The term does not include public information from
government records, certain employment information, or deidentified or aggregate consumer
information.
The bill provides certain operational requirements on controllers with respect to collecting, selling, or
sharing personal information with processors or third parties.
Also, the bill provides that online platforms that are predominantly accessed by children may not,
except under certain circumstances:
Process personal information of or profile a child.
Collect, sell, share, or retain personal information or geolocation of a child.
Use a child’s personal information for any unstated reason.
Use dark patterns to obtain more information of a child than necessary.
Use collected information to estimate age for any other reason.
DLA, upon belief that any controller, processor, third party, or online platform is in violation of the bill,
may bring an action under the Florida Unfair or Deceptive Trade Practices Act against a controller,
processor, or third party.
10 OPPAGA, Office of the Attorney General (Department of Legal Affairs ),
https://oppaga.fl.gov/ProgramSummary/ProgramDetail?programNumber=1026 (last visited Mar. 31, 2023).
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Effect of Proposed Changes
The bill creates a public record exemption for all information received by DLA pursuant to a notification
or investigation by DLA or a law enforcement agency of a violation of certain statutory requirements.
Such information is made confidential and exempt11 from public record requirements.
During an active investigation, information made confidential and exempt may be disclosed by DLA:
In the furtherance of its official duties and responsibilities;
• For print, publication, or broadcast if DLA determines that such release would assist in notifying
the public or locating or identifying a person that DLA believes to be a victim of a data breach or
improper use or disposal of customer records, except that information made confidential and
exempt after an investigation may not be released in this manner; or
• To another governmental entity in the furtherance of the receiving entity’s official duties and
responsibilities.
Once an investigation is completed or once an investigation ceases to be active, the following
information received by DLA remains confidential and exempt:
All information to which another public records exemption applies;
Personal information;
A computer forensic report;
Information that would otherwise reveal weaknesses in a controller’s, processor’s, or third
party’s data security; and
Information that would otherwise disclose a controller’s, processor’s, or third party’s proprietary
information.
The bill defines the term "proprietary information" to mean information that:
Is owned or controlled by the controller, processor, or third party;
Is intended to be private and is treated by the controller, processor, or third party as private
because disclosure would harm the controller, processor, or third party or its business
operations;
Has not been disclosed except as required by law or a private agreement that provides that the
information will not be released to the public;
Is not publicly available or otherwise readily ascertainable through proper means from another
source in the same configuration as received by DLA; and
Includes trade secrets and competitive interests.
The bill provides a public necessity statement as required by article I, s. 24(c) of the Florida
Constitution. The public necessity statement provides that, if released, information received by DLA
pursuant to an investigation by DLA or a law enforcement agency could:
Frustrate or thwart the investigation and impair the ability of DLA to perform assigned functions;
Undo a specific statutory exemption protecting the information;
Be used for the purpose of identity theft;
Result in the identification of vulnerabilities; and
Result in economic harm.
The bill provides that the public record exemption is subject to the Open Government Sunset Review
Act and will repeal on October 2, 2028, unless the Legislature reviews and reenacts the exemption by
that date.
11 There is a difference between records the Legislature designates 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 circumstan ces.
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. 5 th 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 statute. See Op. Att’y Gen. Fla.
(1985).
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The bill will become effective on the same date that CS/HB 1547 or similar legislation takes effect, if
such legislation is adopted in the same legislative session or an extension thereof and becomes a law.
B. SECTION DIRECTORY:
Section 1: Creates a public record exemption for investigations related to ss. 501.173 or 501.1735,
F.S.
Section 2: Provides a public necessity statement as required by the Florida Constitution.
Section 3: Provides an effective date of the same date that CS/HB 1547 or similar legislation takes
effect, if such legislation is adopted in the same legislative session or an extension
thereof and becomes law.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
The bill may have a minimal fiscal impact on DLA because agency staff responsible for complying with
public records requests may require training related to the creation of the public record exemption. DLA
could incur costs associated with redacting the confidential and exempt information prior to releasing a
record. The costs, however, would be absorbed by existing resources, as they are part of the day-to-
day responsibilities of agencies.
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:
Vote Requirement
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.
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Public Necessity Statement
Article I, s. 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 that, if
released, information received by DLA pursuant to an investigation could frustrate or thwart the
investigation and impair the ability of DLA to perform assigned functions, undo a specific statutory
exemption protecting the information, be used for the purpose of identity theft, result in the
identification of vulnerabilities, and result in economic harm.
Breadth of Exemption
Article I, s. 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 record exemption for sensitive investigative materials and personal
information, 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 28, 2023, the Regulatory Reform & Economic Development Subcommittee adopted an
amendment and reported the bill favorably as a committee substitute. The amendment made conforming
technical changes to conform to the linked bill.
This analysis is drafted to the committee substitute as adopted 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 1549 2023
1 A bill to be entitled
2 An act relating to public records; amending s.
3 501.173, F.S.; providing an exemption from public
4 records requirements for information relating to
5 investigations by the Department of Legal Affairs and
6 law enforcement agencies of certain data privacy
7 violations; providing for future legislative review
8 and repeal of the exemption; providing a statement of
9 public necessity; providing a contingent effective
10 date.
11
12 Be It Enacted by the Legislature of the State of Florida:
13
14 Section 1. Subsection (13) is added to section 501.173,
15 Florida Statutes, as created by HB 1547, 2023 Regular Session,
16 to read:
17 501.173 Consumer data privacy.—
18 (13) PUBLIC RECORDS EXEMPTION.—
19 (a) All information received by the department pursuant to
20 a notification of a violation under this section, or received by
21 the department pursuant to an investigation by the department or
22 a law enforcement agency of a violation of this section or s.
23 501.1735, is confidential and exempt from s. 119.07(1) and s.
24 24(a), Art. I of the State Constitution, until such time as the
25 investigation is completed or ceases to be active. This
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26 exemption shall be construed in conformity with s.
27 119.071(2)(c).
28 (b) During an active investigation, information made
29 confidential and exempt pursuant to paragraph (a) may be
30 disclosed by the department:
31 1. In the furtherance of its official duties and
32 responsibilities;
33 2. For print, publication, or broadcast if the department
34 determines that such release would assist in notifying the
35 public or locating or identifying a person that the department
36 believes to be a victim of a data breach or improper use or
37 disposal of customer records, except that information made
38 confidential and exempt by paragraph (c) may not be released
39 pursuant to this subparagraph; or
40 3. To another governmental entity in the furtherance of
41 its official duties and responsibilities.
42 (c) Upon completion of an investigation or once an
43 investigation ceases to be active, the following information
44 received by the department shall remain confidential and exempt
45 from s. 119.07(1) and s. 24(a), Art. I of the State
46 Constitution:
47 1. All information to which another public records
48 exemption applies.
49 2. Personal information.
50 3. A computer forensic report.
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51 4. Information that would otherwise reveal weaknesses in
52 the data security of a controller, processor, or third party.
53 5. Information that would disclose the proprietary
54 information of a controller, processor, or third party.
55 (d) For purposes of this subsection, the term "proprietary
56 information" means information that:
57 1. Is owned or controlled by the controller, processor, or
58 third party.
59 2. Is intended to be private and is treated by the
60 controller, processor, or third party as private because
61 disclosure would harm the controller, processor, or third party
62 or its business operations.
63 3. Has not been disclosed except as required by law or a
64 private agreement that provides that the information will not be
65 released to the public.
66 4. Is not publicly available or otherwise readily
67 ascertainable through proper means from another source in the
68 same configuration as received by the department.
69 5. Includes:
70 a. Trade secrets as defined in s. 688.002.
71 b. Competitive interests, the disclosure of which would
72 impair the competitive advantage of the controller, processor,
73 or third party who is the subject of the information.
74 (e) This subsection is subject to the Open Government
75 Sunset Review Act in accordance with s. 119.15 and shall stand
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76 repealed on October 2, 2028, unless reviewed and saved from
77 repeal through reenactment by the Legislature.
78 Section 2. The Legislature finds that it is a public
79 necessity that all information received by the Department of
80 Legal Affairs pursuant to a notification of a violation of s.
81 501.173 or s. 501.1735, Florida Statutes, or received by the
82 department pursuant to an investigation by the department or a
83 law enforcement agency of a violation of s. 501.173 or s.
84 501.1735, Florida Statutes, be made confidential and exempt from
85 s. 119.07(1), Florida Statutes, and s. 24(a), Article I of the
86 State Constitution for the following reasons:
87 (1) A notification of a violation of s. 501.173 or s.
88 501.1735, Florida Statutes, may result in an investigation of
89 such violation. The premature release of such information could
90 frustrate or thwart the investigation and impair the ability of
91 the department to effectively and efficiently administer s.
92 501.173 or s. 501.1735, Florida Statutes. In addition, release
93 of such information before completion of an active investigation
94 could jeopardize the ongoing investigation.
95 (2) Release of information to which another public record
96 exemption applies once an investigation is completed or ceases
97 to be active would undo the specific statutory exemption
98 protecting that information.
99 (3) An investigation of a violation of s. 501.173 or s.
100 501.1735, Florida Statutes, is likely to result in the gathering
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101 of sensitive personal information, including identification
102 numbers, unique identifiers, professional or employment -related
103 information, and personal financial information. Such
104 information could be used for the purpose of identity theft. The
105 release of such information could subject possible victims of
106 data privacy violations to further harm.
107 (4) Notices received by the department and information
108 received during an investigation of a violation of s. 501.173 or
109 s. 501.1735, Florida Statutes, are likely to contain propr ietary
110 information. Such information, including trade secrets, derives
111 independent, economic value, actual, or potential, from being
112 generally unknown to, and not readily ascertainable by, other
113 persons who might obtain economic value from its disclosure o r
114 use. Allowing public access to proprietary information,
115 including a trade secret, through a public records request could
116 destroy the value of the proprietary information and cause a
117 financial loss to the controller, processor, or third party
118 submitting the information. Release of such information could
119 give business competitors an unfair advantage and weaken the
120 position of the entity supplying the proprietary information in
121 the marketplace.
122 (5) Information received by the department may contain a
123 computer forensic report or information that could reveal
124 weaknesses in the data security of a controller, processor, or
125 third party. The release of this information could result in the
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126 identification of vulnerabilities in the cybersecurity system of
127 the controller, processor, or third party and be used to harm
128 the controller, processor, or third party and clients.
129 (6) The harm that may result from the release of
130 information received by the department pursuant to a
131 notification or investigation by the department or a law
132 enforcement agency of a violation of s. 501.173 or s. 501.1735,
133 Florida Statutes, could impair the effective and efficient
134 administration of the investigation and thus, outweighs the
135 public benefit that may be derived from the disclosure of the
136 information.
137 Section 3. This act shall take effect on the same date
138 that HB 1547 or similar legislation takes effect, if such
139 legislation is adopted in the same legislative session or an
140 extension thereof and becomes a law.
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PCB COM 23-05
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: PCB COM 23-05 Changes in Ownership of or Interest in Pari-mutuel Permits
SPONSOR(S): Commerce Committee
TIED BILLS: IDEN./SIM. BILLS: SB 7044
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Commerce Committee Thompson Hamon
SUMMARY ANALYSIS
The Florida Gaming Control Commission (commission) is the regulatory body that is responsible for exercising
all regulatory and executive powers of the state with respect to gambling, including pari-mutuel wagering,
cardrooms, and slot machine facilities. The Florida Pari-mutuel Wagering Act (Act) provides specific permitting
and licensure requirements for the pari-mutuel industry. Pari-mutuel wagering activities are limited to operators
who have received a permit from the commission, which is then subject to ratification by county referendum.
Permitholders apply for an operating license annually to conduct pari-mutuel wagering activities. Certain
permitholders are authorized to operate cardrooms and slot machines at their facility.
The Act generally requires that any transfer or assignment of a permit receive prior approval by the
commission, which must determine the eligibility of persons and entities to hold a permit. Similarly, if a permit is
held by a corporation or business entity other than an individual, the transfer of ten percent or more of the
stock or other evidence of ownership or equity in the permitholder may not be made without the prior approval
of the transferee by the commission.
The Act restricts a pari-mutuel permitholder from holding a permit, or being issued an operating license to
conduct pari-mutuel wagering, slot machine gaming, or the operation of a cardroom, if the permitholder did not
hold an operating license for the conduct of pari-mutuel wagering for Fiscal Year 2020-2021. The Act exempts
converted thoroughbred permits from this restriction.
The bill relaxes the provisions in the Act that restrict pari-mutuel permitholders from holding a permit, or
being issued an operating license, regardless of whether the permitholder held an operating license for Fiscal
Year 2020-2021.
Relating to permits, the bill allows a permit, for the conduct of pari-mutuel wagering and associated
cardroom and slot machine licenses, to be held by a purchaser, transferee, or assignee of a valid permit to
conduct pari-mutuel wagering, if approved by the commission before such purchase, transfer, or assignment,
and provided that the commission does not approve or issue an additional permit for the conduct of pari-mutuel
wagering.
Relating to cardrooms, the bill allows a purchaser, transferee, or assignee of a valid permit to be issued a
license to operate a cardroom.
Relating to operating licenses, the bill authorizes the issuance of an operating license to an eligible
purchaser, transferee, or assignee of a valid permit.
The bill does not appear to have a fiscal impact on state or local government. The bill may expand the sale and
transfer market for pari-mutuel permitholders.
The bill is effective upon becoming law.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
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DATE: 4/23/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
General Overview of Gaming in Florida
Gambling is generally prohibited in Florida, unless specifically authorized. Section 7, Art. X, of the
Florida Constitution prohibits lotteries, other than pari-mutuel pools, from being conducted in Florida.
Chapter 849, F.S., includes prohibitions against slot machines, keeping a gambling house and running
a lottery. However, a constitutional amendment approved by voters in 1986 authorized state-operated
lotteries, and a constitutional amendment in 2004 authorized slot machines in Miami-Dade and
Broward Counties.
The following gaming activities are also authorized by law and regulated by the state:
• Pari-mutuel 1 wagering; 2
• Gaming on tribal reservations in accordance with the Indian Gaming and Regulatory Act and the
2010 Gaming Compact with the Seminole Tribe of Florida;
• Slot machine gaming at certain licensed pari-mutuel locations in Miami-Dade County and
Broward County; 3 and
• Cardrooms 4 at certain pari-mutuel facilities.
Chapter 849, F.S., also authorizes, under specific and limited conditions, the conduct of penny-ante
games, 5 bingo, 6 charitable drawings, 7 game promotions (sweepstakes), 8 bowling tournaments, 9 and
skill-based amusement games and machines at specified locations. 10
In 2013, the legislature clarified that Internet café style gambling machines were illegal in the state. The
legislation clarified existing sections of law regarding slot machines, charitable drawings, game
promotions, and amusement machines and created a rebuttable presumption that machines used to
simulate casino-style games in schemes involving consideration and prizes are prohibited slot
machines. 11
In 2015, the legislature determined that the regulation of the operation of skill-based amusement
games and machines would ensure compliance with Florida’s limitations on gambling and prevent the
expansion of casino-style gambling. The legislature clarified regulations related to the operation and
use of amusement games or machines to ensure that regulations would not be interpreted as creating
an exception to the state's general prohibitions against gambling. 12
1
“Pari-mutuel” is defined in Florida law as “a system of betting on races or games in which the winners divide the total amount bet,
after deducting management expenses and taxes, in proportion to the sums they have wagered individually and with regard to the odds
assigned to particular outcomes. See s. 550.002(22), F.S.
2
See ch. 550, F.S., relating to the regulation of pari-mutuel activities.
3
See FLA. CONST., art. X, s. 23, and ch. 551, F.S.
4
S. 849.086(2)(c), F.S., defines “cardroom” to mean “a facility where authorized card games are played for money or anything of
value and to which the public is invited to participate in such games and charged a fee for participation by the operator of such
facility.”
5
S. 849.085, F.S.
6
S. 849.0931, F.S.
7
S. 849.0935, F.S.
8
S. 849.094, F.S., authorizes game promotions in connection with the sale of consumer products or services.
9
S. 849.141, F.S.
10
S. 546.10, F.S.
11
Florida House of Representatives Select Committee on Gaming, Final Bill Analysis of 2013 CS/HB 155, p. 1 (Apr. 19, 2013).
12
S. 546.10, F.S.
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Amendment to Florida Constitution Prohibiting Racing of and Wagering on Greyhounds or
Other Dogs
During the 2018 General Election, the voters approved an initiative constitutional amendment,
Amendment 13, Prohibition on Racing of and Wagering on Greyhounds or Other Dogs, which has been
codified in the State Constitution as Article X, Section 32. 13
Article X, Section 32 states:
Prohibition on racing of and wagering on greyhounds or other dogs.—The humane
treatment of animals is a fundamental value of the people of the State of Florida. After
December 31, 2020, a person authorized to conduct gaming or pari-mutuel operations
may not race greyhounds or any member of the Canis Familiaris subspecies in
connection with any wager for money or any other thing of value in this state, and
persons in this state may not wager money or any other thing of value on the outcome
of a live dog race occurring in this state. The failure to conduct greyhound racing or
wagering on greyhound racing after December 31, 2018, does not constitute grounds
to revoke or deny renewal of other related gaming licenses held by a person who is a
licensed greyhound permitholder on January 1, 2018, and does not affect the eligibility
of such permitholder, or such permitholder’s facility, to conduct other pari-mutuel
activities authorized by general law. By general law, the legislature shall specify civil or
criminal penalties for violations of this section and for activities that aid or abet
violations of this section.
As of January 1, 2021, wagering on live greyhound racing in Florida is completely prohibited. However,
cardroom and slot machine facilities by such permitholders may continue to operate after the closure of
racing activities.
Pari-mutuel Wagering
Since approximately 1931, pari-mutuel wagering has been authorized in Florida for jai alai, greyhound
racing, and horseracing. These activities are overseen and regulated 14 by the Division of Pari-Mutuel
Wagering (division) at the Florida Gaming Control Commission (commission), which is housed within
the Department of Legal Affairs, Office of the Attorney General. 15 The commission is tasked with
exercising all regulatory and executive powers of the state on all forms of gambling authorized by the
State Constitution or law including pari-mutuel wagering, card rooms, slot machine facilities, and the
oversight of gaming compacts under the federal Indian Gaming Regulatory Act but excluding state
lottery games authorized by the State Constitution. 16
Pari-Mutuel Wagering State Revenue
License fees and taxes collected by pari-mutuel wagering permitholders, including slot machine and
cardroom permitholders, are deposited with the Chief Financial Officer, to the credit of the Pari-mutuel
Wagering Trust Fund. Slot machine tax revenue is transferred from the Pari-mutuel Wagering Trust
Fund to the Educational Enhancement Trust Fund to supplement public education funding statewide.
Taxes collected by cardrooms are split between the Pari-mutuel Wagering Trust Fund and the General
Revenue Fund.
Pari-Mutuel Wagering Live Performance Requirements
13
See the text of Amendment 13, now codified as art. X, s. 32, at
http://www.leg.state.fl.us/Statutes/index.cfm?Mode=Constitution&Submenu=3&Tab=statutes#A10S32 (last visited Apr. 20, 2023).
14
From 1932 to 1969, Florida’s pari-mutuel industry was regulated by the State Racing Commission. In 1970, the commission became
a division within the Department of Business Regulation, which, in 1993, became DBPR.
15
See ss. 16.71-16.716, F.S.
16
S. 16.712, F.S.
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Currently, only thoroughbred permitholders are required to conduct live racing. 17 Greyhound
permitholders may not conduct live racing, and jai alai permitholders, harness horse racing
permitholders, or quarter horse racing permitholders may elect not to conduct live racing or games.
A greyhound permitholder, jai alai permitholder, harness horse racing permitholder, or quarter horse
racing permitholder that does not conduct live racing or games: 18
• Retains its permit;
• Is a pari-mutuel facility as defined in s. 550.002(23), F.S.;
• Is eligible, but not required, to be a guest track, and if the permitholder is a harness horse racing
permitholder, is eligible to be a host track for purposes of intertrack wagering and simulcasting
pursuant to ss. 550.3551, 550.615, 550.625, and 550.6305, F.S.; and
• Remains eligible for a cardroom license.
A permitholder or licensee may not conduct live greyhound racing or dogracing in connection with any
wager for money or any other thing of value in the state. The division is authorized to deny, suspend, or
revoke any permit or license in ch. 550, F.S., for conducting live greyhound racing or dogracing in
violation of this provision. In addition to, or in lieu of, denial, suspension, or revocation of such permit or
license, the division is authorized to impose a civil penalty of up to $5,000. All penalties imposed and
collected must be deposited with the Chief Financial Officer to the credit of the General Revenue
Fund. 19
Pari-mutuel Wagering Permitting and Licensure
The Florida Pari-mutuel Wagering Act (Act) 20 provides specific permitting and licensing requirements
for the conduct of the pari-mutuel industry. 21 Pari-mutuel wagering activities are limited to operators
who have received a permit from the division, which is then subject to ratification by county
referendum. 22 Permitholders apply for an operating license annually to conduct pari-mutuel wagering
activities. 23 Certain permitholders are also authorized to operate cardrooms 24 and slot machines at their
facility. 25
During Fiscal Year 2020-2021, the following 39 pari-mutuel permitholders were licensed to operate: 26
• Nineteen Greyhound Racing permits.
• Three Thoroughbred Horse Racing permits.
• One Harness Horse Racing permit.
• Six Quarter Horse Racing permits.
• Ten Jai-Alai permits.
The division may revoke or suspend any permit or license upon the willful violation by the permitholder
or licensee of any provision of the Act, or any administrative rule adopted by the division, and may
impose a civil penalty against the permitholder or license up to $1,000 for each offense. 27
During Fiscal Year 2021-2022, the division issued 40 rulings and 14 consent orders, assessed fines
totaling $16,500 and imposed three license suspensions for violations. 28
17
S. 550.01215(1)(b)1., F.S.
18
Id.
19
S. 550.01215(1)(b)2., F.S.
20
Ch. 550, F.S.
21
S. 550.054(1), F.S.
22
S. 550.054(2), F.S.
23
S. 550.0115, F.S.
24
S. 849.086, F.S.
25
S. 551.104, F.S.
26
Florida Gaming Control Commission, Annual Report Fiscal Year 2021-2022, https://flgaming.gov/pmw/annual-
reports/docs/AnnualReport-2021-2022--1st%20FGCC--20221206.pdf (last visited Apr. 20, 2023.)
27
S. 550.054(9)(b), F.S.
28
Id.
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Pari-Mutuel Wagering License Restrictions
The Act generally requires that any transfer or assignment of a permit receive prior approval 29 by the
commission, which must determine the eligibility 30 of persons and entities to hold a permit. Similarly, if
a permit is held by a corporation or business entity other than an individual, the transfer of ten percent
or more of the stock or other evidence of ownership or equity in the permitholder may not be made
without the prior approval of the transferee by the commission. 31
The Act provides restrictions on which persons and entities (including but not limited to employees,
officers and directors, partners, and owners of the permitholder) may hold permits, based on whether
they are of “good moral character,” or have been convicted of a disqualifying felony 32 or for
bookmaking. 33
The Act restricts pari-mutuel permitholders from being issued an operating license to conduct pari-
mutuel wagering, slot machine gaming, or the operation of a cardroom if the permitholder did not hold
an operating license for the conduct of pari-mutuel wagering for Fiscal Year 2020-2021. 34
The Act restricts pari-mutuel permitholders from holding a permit to conduct pari-mutuel wagering and
associated cardroom or slot machine licenses 35 unless the permitholder, other than a limited
thoroughbred permitholder, held an operating license for the conduct of pari-mutuel wagering for Fiscal
year 2020-2021. 36
The Act restricts cardroom licenses from being issued to any permitholder, other than a limited
thoroughbred permitholder, if the permitholder did not hold an operating license for Fiscal Year 2020-
2021. 37
The Act specifies that permits held on January 1, 2021 are deemed valid, but new permits for pari-
mutuel wagering may not be approved or issued. 38
The commission is required to revoke the permit of any permitholder, other than a limited thoroughbred
permitholder, who did not hold an operating license for the conduct of pari-mutuel wagering for fiscal
year 2020-2021. A permit revoked under this provision is void and may not be reissued. 39
Recent Activities
In December 2022, West Flagler Associates, Ltd. applied 40 to the commission to transfer its pari-mutuel
permit #155 41 and associated licenses to conduct pari-mutuel wagering, slot machine gaming, and
29
There is one exception to the prior-approval requirement in s. 550.054(11)(a), F.S., which is that the holder of a permit converted to
a jai alai permit “may lease or build anywhere within the county in which its permit is located.” As of 2021, such conversions are
prohibited. See s. 550.054(15)(d), F.S.
30
See s. 550.1815, F.S
31
See s. 550.054(11), F.S.
32
Pursuant to s. 550.1815(1)(b), F.S., the following are disqualifying felonies: (1) a felony in Florida; (2) any felony in any other state
which would be a felony if committed in Florida under the laws of this state; (3) any felony under the laws of the United States; or (4)
a felony under the laws of another state if related to gambling which would be a felony under Florida law if the offense was committed
in Florida.
33
The term “bookmaking” is defined in s. 849.25, F.S., to mean “the act of taking or receiving, while engaged in the business or
profession of gambling, any bet or wager upon the result of any trial or contest of skill, speed, power, or endurance of human, beast,
fowl, motor vehicle, or mechanical apparatus or upon the result of any chance, casualty, unknown, or contingent event whatsoever.”
34
S. 550.01215(1)(d), F.S.
35
Under s. 551.114(4), F.S., designated slot machine gaming areas must be located at the address specified in the licensed
permitholder's slot machine license issued for Fiscal Year 2020-2021.
36
S. 550.054(15)(a), F.S.
37
S. 849.086(5)(c), F.S.
38
S. 550.054(15)(c), F.S.
39
S. 550.054(9)(a), F.S.
40
Florida Gaming Control Commission, Meetings Archive, Discussion of application for ownership transfer 4.1 2022-048451 West
Flagler Associates, LTD (Dec. 1, 2022), https://flgaming.gov/meetings/archive/ (last visited Apr. 19, 2023).
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operate a cardroom, to Wind Creek Miami, LLC, a wholly owned subsidiary of PCI Gaming Authority,
an unincorporated chartered instrumentality of the Poarch Band of Creek Indians. The commission did
not approve the transfer of the permit because Wind Creek Miami, LLC did not hold an operating
license for the conduct of pari-mutuel wagering for Fiscal Year 2020-2021 as required by the Act. 42
In February 2023, the commission conditionally approved the acquisition of West Flagler Associates,
Ltd.’s permit after PCI Gaming Authority substituted Gretna Racing LLC as the purchaser of pari-mutuel
permit #155 and the accompanying pari-mutuel, slot machine, and cardroom licenses. 43 Gretna Racing
LLC did hold an operating license for pari-mutuel wagering and for the operation of a cardroom for
Fiscal Year 2020-2021. 44
Prior to 2021, Debary Real Estate Holdings, LLC, Jefferson County Kennel Club, and North American
Racing Association held pari-mutuel wagering permits, but did not possess an operating license for the
conduct of pari-mutuel wagering for Fiscal Year 2020–2021. Accordingly, the commission issued
notices of intent to revoke their permits, pursuant to the restrictions in the Act. The three entities have
challenged the commission’s proposed agency action by filing petitions for formal administrative
hearings that are currently being litigated at the Division of Administrative Hearings. 45
Proposed Changes
The bill relaxes the restrictions on pari-mutuel permitholders from holding a permit, or being issued
an operating license, regardless of whether the permitholder held an operating license for Fiscal
Year 2020-2021.
Specifically, relating to permits, the bill allows a permit for the conduct of pari-mutuel wagering and
associated cardroom and slot machine licenses, to be held by a purchaser, transferee, or assignee
of a valid permit to conduct pari-mutuel wagering, if approved by the commission before such
purchase, transfer, or assignment, and provided that the commission does not approve or issue an
additional permit for the conduct of pari-mutuel wagering.
Relating to cardrooms, the bill allows a purchaser, transferee, or assignee of a valid permit to be
issued a license to operate a cardroom.
Relating to operating licenses, the bill authorizes the issuance of an operating license to an eligible
purchaser, transferee, or assignee of a valid permit.
The bill becomes effective upon becoming a law.
B. SECTION DIRECTORY:
Section 1: Amends s. 550.054, F.S., relating to the application for permit to conduct pari-mutuel
wagering.
Section 2: Amends s. 849.086, F.S., relating to cardrooms authorized.
41
Florida Gaming Control Commission, Tracks and Frontons, Permit Holders List 2021-2022, Flagler Dog Track and Magic City
Casino, Permit No. 155, https://flgaming.gov/pmw/tracks-frontons/ (last visited Apr. 19, 2023).
42
S. 550.01215(1)(d), F.S., also prohibits the issuance of an operating license for the conduct of pari-mutuel wagering, slot machine
gaming, or the operation of a cardroom, if the permitholder did not hold an operating license to conduct pari-mutuel wagering for
Fiscal Year 2020-2021. Section 849.086(5)(c), F.S., also prohibits the issuance of a cardroom license under the same restrictions.
43
Florida Gaming Control Commission, Meetings Archive, Discussion of application for ownership transfer 2.1. 2022-048451 West
Flagler Associates, LTD 3. Discussion of recommended orders (Feb. 8, 2023), https://flgaming.gov/meetings/archive/ (last visited
Apr. 19, 2023).
44
Florida Gaming Control Commission, Permit Holder Operating Licenses 2022-2023, Gretna Racing, LLC (542),
https://flgaming.gov/pmw/tracks-frontons/permitholder-operating-licenses-2022-2023/ (last visited Apr. 19, 2023).
45
Florida Gaming Control Commission, Annual Report Fiscal Year 2021-2022, Pending Litigation, https://flgaming.gov/pmw/annual-
reports/docs/AnnualReport-2021-2022--1st%20FGCC--20221206.pdf (last visited Apr. 20, 2023).
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DATE: 4/23/2023
Section 3: Amends s. 550.0125, F.S., relating to license application; periods of operation; license
fees; bond.
Section 4: Provides an effective date of upon becoming 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:
Relaxing restrictions on eligibility for pari-mutuel wagering operating licensure may expand the market
related to the sale and transfer of such licenses.
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.
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DATE: 4/23/2023
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
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DATE: 4/23/2023
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
PCB COM 23-05 2023
1 A bill to be entitled
2 An act relating to changes in ownership of or interest
3 in pari-mutuel permits; amending s. 550.054, F.S.;
4 revising entities authorized to hold pari-mutuel
5 wagering permits and associated licenses; amending s.
6 849.086, F.S.; specifying such entities may hold a
7 license for the operation of a cardroom; amending s.
8 550.01215, F.S.; providing applicability; providing an
9 effective date.
10
11 Be It Enacted by the Legislature of the State of Florida:
12
13 Section 1. Subsection (15) of section 550.054, Florida
14 Statutes, is amended to read:
15 550.054 Application for permit to conduct pari-mutuel
16 wagering.—
17 (15)(a) Notwithstanding any other provision of law, a
18 permit for the conduct of pari-mutuel wagering and associated
19 cardroom or slot machine licenses may only be held by a
20 permitholder who held an operating license for the conduct of
21 pari-mutuel wagering for fiscal year 2020-2021 or who holds a
22 permit issued pursuant to s. 550.3345 or by a purchaser,
23 transferee, or assignee of a valid permit for the conduct of
24 pari-mutuel wagering if approved by the commission before such
25 purchase, transfer, or assignment and provided that the
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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 23-05 2023
26 commission does not approve or issue an additional permit for
27 the conduct of pari-mutuel wagering;
28 (b) All permits issued under this chapter held by
29 permitholders on January 1, 2021, are deemed valid for the sole
30 and exclusive purpose of satisfying all conditions for the valid
31 issuance of the permits, if such permitholder held an operating
32 license for the conduct of pari-mutuel wagering for fiscal year
33 2020-2021 or if such permitholder held a permit issued pursuant
34 to s. 550.3345;
35 (c) Additional permits for the conduct of pari-mutuel
36 wagering may not be approved or issued by the commission or
37 former Division of Pari-mutuel Wagering after January 1, 2021;
38 and
39 (d) A permit to conduct pari-mutuel wagering may not be
40 converted to another class of permit.
41 Section 2. Paragraph (c) of subsection (5) of section
42 849.086, Florida Statutes, is amended to read:
43 849.086 Cardrooms authorized.—
44 (5) LICENSE REQUIRED; APPLICATION; FEES.—No person may
45 operate a cardroom in this state unless such person holds a
46 valid cardroom license issued pursuant to this section.
47 (c) Notwithstanding any other provision of law, a pari -
48 mutuel permitholder, other than a permitholder issued a permit
49 pursuant to s. 550.3345 or a purchaser, transferee, or assignee
50 holding a valid permit for the conduct of pari-mutuel wagering
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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 23-05 2023
51 approved pursuant to s. 550.054(15)(a), may not be issued a
52 license for the operation of a cardroom if the permitholder did
53 not hold an operating license for the conduct of pari -mutuel
54 wagering for fiscal year 2020-2021. In order for an initial
55 cardroom license to be issued to a thoroughbred permitholder
56 issued a permit pursuant to s. 550.3345, the applicant must have
57 requested, as part of its pari-mutuel annual license
58 application, to conduct at least a full schedule of live racing.
59 In order for a cardroom license to be renewed by a thoroughbred
60 permitholder, the applicant must have requested, as part of its
61 pari-mutuel annual license application, to conduct at least 90
62 percent of the total number of live performances conducted by
63 such permitholder during either the state fiscal year in which
64 its initial cardroom license was issued or the state fiscal year
65 immediately prior thereto if the permitholder ran at least a
66 full schedule of live racing or games in the prior year.
67 Section 3. Paragraph (d) of subsection (1) of section
68 550.01215, Florida Statutes, is amended to read:
69 550.01215 License application; periods of operation;
70 license fees; bond.—
71 (1) Each permitholder shall annually, during the period
72 between December 15 and January 4, file in writing with the
73 commission its application for an operating license for a pari-
74 mutuel facility for the conduct of pari-mutuel wagering during
75 the next state fiscal year, including intertrack and simulcast
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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 23-05 2023
76 race wagering. Each application for live performances must
77 specify the number, dates, and starting times of all live
78 performances that the permitholder intends to conduct. It must
79 also specify which performances will be conducted as charity or
80 scholarship performances.
81 (d) Notwithstanding any other provision of law, other than
82 a permitholder issued a permit pursuant to s. 550.3345, a pari-
83 mutuel permitholder may not be issued an operating license for
84 the conduct of pari-mutuel wagering, slot machine gaming, or the
85 operation of a cardroom if the permitholder did not hold an
86 operating license for the conduct of pari-mutuel wagering for
87 fiscal year 2020-2021. This paragraph does not apply to a
88 purchaser, transferee, or assignee holding a valid permit for
89 the conduct of pari-mutuel wagering approved pursuant to s.
90 550.054(15)(a).
91 Section 4. This act shall take effect upon becoming a law.
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CODING: Words stricken are deletions; words underlined are additions.
PCS for CS/HB 669
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: PCS for CS/HB 669 Improvements to Real Property
SPONSOR(S): Commerce Committee
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Commerce Committee Keating Hamon
SUMMARY ANALYSIS
In 2010, the Legislature provided specific authority for local governments to create qualifying improvement programs,
commonly referred to as Property Assessed Clean Energy (PACE) programs, to provide up-front financing for certain
qualifying improvements. Under these programs, property owners may apply to the local government for funding to
finance a qualifying improvement and voluntarily enter into a financing agreement with the local government. Qualifying
improvements include energy conservation and efficiency improvements, renewable energy improvements, and wind
resistance improvements to existing facilities. Property owners finance qualifying improvements through a non-ad valorem
assessment on their property. Local governments determine whether to offer a residential or commercial qualifying
improvement program, whether to administer the program directly or through a for-profit or not-for-profit administrator, or
any combination thereof.
The bill makes several changes to Florida law governing qualifying improvement programs, including:
Expanding eligible “qualifying improvements” to include:
o For residential properties: wastewater improvements, such as advanced onsite sewage treatment and
disposal systems and septic-to-sewer conversions.
o For commercial properties: stormwater and flood resiliency improvements, including “shoreline
improvements,” improvements to achieve a sustainable building rating or compliance with a national
model resiliency standard, improvements to achieve wind or flood insurance rate reductions, and wind-
resistance improvements on new construction.
Requiring the holder or servicer of a mortgage that encumbers an applicant’s property to provide consent:
o For residential properties: for the applicant to exceed a 97% ratio of property-related debt to the
property’s fair market value as determined by a licensed appraiser.
o For commercial properties: for the applicant to finance any qualifying improvement through the program.
Authorizing the use of a qualifying improvement program to refinance qualifying improvements.
Strengthening underwriting requirements for residential properties, including, among other things, a determination
that the property owner is able to repay the assessment and cover existing debts and expenses, subject to a
maximum debt-to-income ratio of 49 percent.
Providing new terms and requirements for residential properties, including:
o Written disclosure requirements before execution of financing agreements and confirmation of specified
terms by phone prior to initiation of work.
o A requirement that the property owner obtain at least two estimates.
o Maximum terms for financing agreements based on the useful life of financed improvements.
o A rescission period of 5 business days.
o A prohibition on the use of negative amortization schedules, balloon payments, and prepayment fees.
o Requirements for enrolling, monitoring, and suspending program contractors.
o Confirmation, before payment to a contractor, that all permit requirements are satisfied.
o Requirements for program marketing, and a prohibition on kickbacks to contractors.
Providing new terms for commercial properties, including:
o Allowing the property owner to execute a financing agreement before a certificate of occupancy or
evidence of completion is issued and allowing for progress payments.
o Defining and providing terms for the use of qualified improvement programs by “nongovernmental
lessees” on “government commercial property.”
Requiring an annual report from each local government that has authorized a PACE program.
The bill does not have a fiscal impact on state or local government.
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:
Current Situation
Property Assessed Clean Energy (PACE) Programs
Generally, Property Assessed Clean Energy (PACE) laws enable local governments to establish
programs to provide financing for certain qualifying improvements on real property which reduce energy
consumption and increase energy efficiency. PACE allows individual property owners to contract
directly with qualified contractors for energy efficiency and renewable energy projects. The local
government issues revenue bonds and uses the proceeds to provide initial project funding, which
bonds are repaid by non-ad valorem assessments on participating property owners’ tax bills. 1 PACE
programs are active in 30 states plus Washington D.C., but only California, Florida, and Missouri offer
residential PACE programs.2
PACE in Florida
In 2010, the Legislature provided specific authority for local governments to create PACE programs. 3
The law4 provides supplemental authority to local governments 5 concerning qualified improvements to
residential and non-residential real property. The law provides that if a local government authorizes a
PACE program, property owners may apply to the local government for funding to finance a qualifying
improvement and voluntarily enter into a financing agreement with the local government. 6 “Qualifying
improvements” include energy conservation and efficiency improvements, renewable energy
improvements, and wind resistance improvements to existing facilities.7
At least 30 days before entering into the financing agreement, the property owner must provide notice
to any mortgage holder or loan servicer of the intent to enter into the agreement, the maximum amount
to be financed, and the maximum annual assessment required to repay the amount. 8 The law provides
that an acceleration clause for “payment of the mortgage, note, or lien or other unilateral modification
solely as a result of entering into a financing agreement … is not enforceable.”9 However, the mortgage
holder or loan servicer may increase the required monthly escrow by an amount necessary to pay
annually the qualifying improvement assessment.
The law authorizes a local government to provide and finance qualifying improvements, levy a non-ad
valorem assessment to fund a qualifying improvement, incur debt to provide financing for qualifying
improvements, and collect costs incurred from financing qualifying improvements through a non-ad
valorem assessment. These non-ad valorem assessments are senior to existing mortgage debt, 10 so if
the homeowner defaults on their mortgage or goes into foreclosure, the delinquent PACE assessment
payments may be recovered before the mortgage. Current law also specifies that a PACE program
may be administered by a for-profit entity or a not-for-profit organization on behalf of and at the
discretion of the local government.
1 For more information, see http://www.pacenation.org and http://floridapace.gov/ (last visited April 5, 2023).
2
California offers residential PACE financing for improvements related to electric vehicle charging, infrastructure, energy ef ficiency,
renewable energy, seismic strengthening and water efficiency. Missouri offers PACE financing for improvements related to energy
efficiency and renewable energy. Additionally, Maine offers residential programs without holding a lien against properties. See PACE
Nation, PACE Programs https://www.pacenation.org/pace-programs/ (last visited April 5, 2023).
3 Ch. 2010-139, Laws of Fla.
4 S. 163.08, F.S.
5 Section 163.08(2)(a), F.S., defines the term “local government” to mean a county, a municipality, a dependent special distric t as
defined in s. 189.012, or a separate legal entity created pursuant to s. 163.01(7) (the Florida Interlocal Cooperation Act).”
6 S. 163.08(4), F.S.
7 S. 163.08(2)(b), F.S.
8 S. 163.08(13), F.S.
9 S. 163.08(15), F.S.
10 See ss. 125.01(1)(r), 170.01 and 170.09, F.S.
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In 2012, the Legislature expanded the definition of “local government” to allow a partnership of local
governments formed pursuant to the Florida Interlocal Cooperation Act 11 to enter into a financing
agreement wherein the partnership, as a separate legal entity, imposes the PACE assessment. 12
Before entering into a financing agreement, the local government must reasonably determine that:
All property taxes and other assessments on the property are paid and have not been
delinquent for the preceding 3 years (or the property owner’s period of ownership, if less than 3
years);
There are no involuntary liens on the property, including, but not limited to, construction liens;
No notices of default or other evidence of property-based debt delinquency have been recorded
during the preceding 3 years (or the property owner’s period of ownership, if less than 3 years);
and
The property owner is current on all mortgage debt on the property.13
The total assessment cannot be for an amount greater than 20 percent of the just value of the property
as determined by the county property appraiser, unless consent is obtained from the mortgage
holders.14 Consideration of the property owner’s ability to repay the assessment is not required.
In Florida, local governments typically have multiple non-exclusive agreements with a number of PACE
providers. Generally, PACE providers are private companies that administer the local government’s
PACE program on behalf of the local government and provide funding from private sources. PACE
providers generally act as the program administrator for special districts created pursuant to an
interlocal agreement between two or more Florida local governments. Once the PACE district is
created, additional counties or municipalities may join the special district as members, authorizing the
PACE provider for the special district to administer PACE programs on behalf of the newly joined
members.15 PACE providers generally maintain a list of approved contractors authorized to provide
qualifying improvements.16
For example, Broward County authorizes the following PACE providers: 17
Counterpointe Energy Solutions administers a commercial PACE program for the Florida PACE
Funding District.
Berkadia administers a commercial PACE program the Florida Renewable Energy District.
CleanFund administers a commercial PACE program for the Florida Renewable Energy District.
Dividend Finance administers the “Dividend” Program for the Florida Renewable Energy
District.
FortiFi Financial administers a residential PACE program for the Florida PACE Funding Agency
District.
Greenworks Lending administers a commercial PACE program for the Florida Resiliency and
Energy District.
Lever Energy Capital administers a commercial PACE program for the Florida Resiliency and
Energy District.
Home Run Financing administers a residential PACE Program for the Florida PACE Funding
Agency District.
Rahill administers a commercial PACE program for the Florida Resiliency and Energy District.
11 S. 163.01(7), F.S.
12 Ch. 2012-117, Laws of Fla.
13 S. 163.08(9), F.S.
14 S. 163.08(12)(a), F.S.
15 See, e.g., Green Corridor Property Assessed Clean Energy (PACE) District Town of Cutler Bay, Florida Financial Report for the
Fiscal Year Ended Sept. 30, 2020, at 13,
https://flauditor.gov/pages/specialdistricts_efile%20rpts/2020%20green%20corridor%20property%20assessment% 20clean%20energy
%20(pace)%20district.pdf (last visited April 5, 2023).
16 See, e.g., Sarasota County, PACE, https://www.scgov.net/government/uf-ifas-extension-and-sustainability/pace (last visited April 5,
2023).
17 Broward County, Property Assessed Clean Energy (PACE)
https://www.broward.org/Sustainability/Documents/PACEProviderList_2022.pdf (last visited April 5, 2023).
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Renew Financial administers PACE programs under the “RenewPACE” Program (residential
and commercial) for the Florida Green Finance Authority.
Structured Finance Associates administers a commercial PACE program for the Florida
Resiliency and Energy District.
Twain Financial Partners administers a commercial PACE program for the Florida Renewable
Energy District.
Local governments may choose whether to offer a residential or commercial PACE program, whether
to administer the program directly or through a third-party PACE provider, or any combination thereof.
PACE financing interest rates vary but are typically higher than traditional financing. 18 Interest rates and
fees for a project are set by the PACE provider when the agreement is finalized with the property
owner.19
Federal Housing Finance Agency and Super-Priority Liens
In 2010, and again in 2014,20 the Federal Housing Finance Agency (FHFA) directed mortgage
underwriters Fannie Mae and Freddie Mac not to purchase mortgages of homes encumbered by a first-
lien PACE loan due to its senior status above a mortgage. Under normal circumstances, real estate lien
priority is established by the order in which the liens are filed.21
According to the FHFA, such super-priority liens increase the risk of losses to taxpayers. Fannie Mae
and Freddie Mac support the housing finance market by purchasing, guaranteeing, and securitizing
single-family mortgages. Therefore, mortgages supported by Fannie Mae and Freddie Mac must
remain in first-lien position, meaning they have first priority in receiving the proceeds from the sale of a
property in foreclosure. Although FHFA generally supports energy retrofit financing programs, FHFA
acknowledges that such programs should be structured to ensure protection of the core financing for
the home.22
This restriction has two potential implications for borrowers. First, a homeowner with a first-lien PACE
loan may not refinance their existing mortgage with a Fannie Mae or Freddie Mac mortgage. Second,
anyone wanting to buy a home that already has a first-lien PACE loan cannot use a Fannie Mae or
Freddie Mac loan for the purchase. These restrictions may reduce the marketability of the house or
require the homeowner to pay off the PACE loan before selling the house. 23
18
The Balance, How PACE Loans Work, https://www.theb alancemoney.com/pace-loans-financing-for-upgrades-4124071 (last visited
April 5, 2023).
19 See PACE Broward, Frequently Asked Questions,
https://www.broward.org/Climate/Documents/PACE%20Broward%20FAQ%20Sheet_Update6_0927 2021.pdf (last visited April 5, 2023).
20 Federal Housing Finance Agency, FHFA Statement on Certain Energy Retrofit Loan Programs (July, 6, 2010),
http://www.fhfa.gov/Media/PublicAffairs/Pages/FHFA-Statement-on-Certain-Energy-Retrofit-Loan-Programs.aspx (last visited April 5,
2023). See also Federal Housing Financial Agency, Statement of the Federal Housing Finance Agency on Certain Supe r Priority Liens
(December 22, 2014)(“FHFA wants to make clear to homeowners, lenders, other financial institutions, state officials, and the public that
Fannie Mae and Freddie Mac’s policies prohibit the purchase of a mortgage where the property has a fir st-lien PACE loan attached to
it”) http://www.fhfa.gov/Media/PublicAffairs/Pages/Statement-of-the-Federal-Housing-Finance-Agency-on-Certain-Super-Priority-
Liens.aspx (last visited April 5, 2023).
21
“Real estate liens generally are ordered so that prior liens are paid in foreclosure before liens filed later in time. For example, a
mortgage loan used to buy the property takes priority over a later mortgage loan used to remodel the home. The earliest and thus
highest priority mortgage loan is known as a first lien, while the subsequent mortgage loan is deemed a second lien. If the h omeowner
defaults on the second lien loan, the first lien mortgage holder retains the lien even if the second lien mortgage holder forecloses;
however, the converse is not true. Tax assessments are an exception to this lien priority rule. Generally, unpaid property ta x
assessments have priority over other liens, regardless of the date the prior liens were recorded or when the tax assessments became
delinquent. This makes the lien priority for PACE financing senior to liens for mortgage loans closed prior to the homeowner’ s
acceptance of the PACE financing. In the case of default by the homeowner on the PACE assessment, local governments and
investors in PACE bonds can expect to collect the balance owed on a PACE assessment before any recovery by a mortgage lender. ”
Prentiss Cox, Keeping PACE? The Case Against Property Assessed Clean Energy Financing Programs, 83 U. Colo. L. Rev. 83, 94
(2011), https://scholarship.law.umn.edu/faculty_articles/549 (last visited April 5, 2023).
22 FHFA Statement on Certain Energy Retrofit Loan Programs, supra, note 20.
23 FHFA Statement on Certain Energy Retrofit Loan Programs, supra, note 20.
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Additionally, in December 2017, the United States Department of Housing and Urban Development
announced that the Federal Housing Administration will no longer insure new mortgages on properties
that include PACE assessments, citing concerns about the potential for increased losses to the Mutual
Mortgage Insurance Fund resulting from the priority lien status given to such assessments. 24
Some residential PACE programs are now operating with loan loss reserve funds, appropriate
disclosures, or other protections meant to address FHFA's concerns. 25 For example, in 2013, California
created a reserve fund to compensate first mortgage lenders in case of a foreclosure or a forced sale
attributable to a PACE loan. Additionally, Oklahoma and Vermont have passed legislation to
downgrade PACE from senior lien to junior lien, and there have been attempts by Congress to revise
residential PACE programs at the federal level, including the 2014 PACE Assessment Protection Act. 26
Consumer Protection
Consumer issues have surrounded the PACE programs from their inception. 27 These include the cost
of funding, contractor sales techniques (notably, responding to a limited homeowner problem and
marketing a full house retrofit), rolling the administrative fees for the local government into the PACE
loan amount, product sales at above market interest rates, workmanship issues, inadequate
disclosures, and indiscriminate lending regardless of ability to repay. 28 An administrator of residential
PACE programs in California and Florida recently settled with the Federal Trade Commission and
California to address complaints that the administrator recruited and authorized contractors, without
adequate training or oversight, to sell its financing, leading to many consumers being deceived during
the sales process and being unfairly subjected to liens on their homes without their express, informed
consent.29
In response to these consumer issues, Congress amended the Truth in Lending Act in 2018 to direct
the Consumer Financial Protection Bureau to implement federal regulations which provide more
effective consumer protections relating to PACE loans, especially those related to the ability of a
homeowner to repay the loan.30
The United States Department of Energy maintains “best practice guidelines” for residential PACE
financing programs, which includes measures relating to:
Establishing financial eligibility and verifying property ownership;
Confirming property-based debt, tax assessments, and property valuation;
Reviewing property owner income and debt obligations;
Establishing consumer and lender protections;
Establishing property owner education and disclosures;
Providing a right to cancel the purchase;
24 FHFA, Property Assessed Clean Energy (PACE) Program, 85 Fed. Reg. 11,2738 (Jan. 16, 2020).
25 Commercial PACE programs were not directly affected by FHFA’s actions because Fannie Mae and Freddie Mac do not underwrite
commercial mortgages.
26 NCSL, PACE Financing https://www.ncsl.org/research/energy/pace-financing.aspx (last visited April 5, 2023).
27 “PACE loans, offered through home improvement contractors, often in door-to-door sales, and secured by a property tax lien, are
collected through a property tax assessment that takes priority over any existing mortgage. PACE programs must be authorized by
state and local governments, but are privately run with little or no government oversight. Over the last two years, there has been a
sharp increase in homeowners seeking assistance from legal s ervices and other organizations in relation to PACE loans. The goal of
improving home energy efficiency is being overshadowed by the lack of adequate consumer protection for these loans. Weak PACE
loan regulation enables contractors to saddle homeowners wi th debt they cannot afford and puts their homes at risk for foreclosure.”
National Consumer Law Center, Advocates Applaud CFPB’s Intention to Deal with PACE Loan Program Ab uses (Mar. 4, 2019),
https://www.nclc.org/media-center/advocates-applaud-cfpbs-intention-to-deal-with-pace-loan-program-abuses.html (last visited April 5,
2023).
28 FHFA, Property Assessed Clean Energy (PACE) Program, 85 Fed. Reg. 11,2738 (Jan. 16, 2020).
29 Federal Trade Commission, FTC, California Act to Stop Ygrene Energy Fund from Deceiving Consumers Ab out PACE Financing,
Placing Liens on Homes Without Consumers’ Consent, https://www.ftc.gov/news -events/news/press-releases/2022/10/ftc-california-act-
stop-ygrene-energy-fund-deceiving-consumers-about-pace-financing-placing-liens (last visited April 5, 2023).
30 FHFA, Property Assessed Clean Energy (PACE) Program, 85 Fed. Reg. 11,2738 (Jan. 16, 2020). See also Public Law 115–174
(2018), section 307; codified at 15 U.S.C. 1639c(b)(3)(C). and Bureau of Consumer Financial Protection, Advance Notice of Proposed
Rulemaking on Residential Property Assessed Clean Energy Financing, 84 FR 8479 (Mar. 8, 2019).
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Determining appropriate minimum equity requirements and appropriate maximum
assessments;
Providing equipment specifications and energy assessments;
Defining the relationship between PACE assessments and mortgage financing;
Providing for non-acceleration upon property owner default;
Notifying mortgage holders of record; and
Addressing the needs and potential vulnerabilities of low-income and elderly households.31
Some local governments in Florida have implemented more stringent consumer protections than those
required by Florida law.32
Wastewater Treatment Improvements
The Florida Department of Health provides “Onsite sewage treatment and disposal systems (OSTDS),
commonly referred to as septic systems, are a safe and effective means of wastewater disposal for 30
percent of Florida’s population. The OSTDS program ensures that the OSTDS is properly designed,
constructed, and maintained through permitting and inspection and contributes to safe ground water,
which provides 90 percent of Florida’s drinking water.”33
There are estimated, however, to be thousands of septic tanks that are old and at risk of failing. 34
These systems risk leaking phosphorus and nitrogen into the water system, which can promote
harmful algal blooms, aquatic weeds, and the alteration of the natural fauna and flora. Serious
algal blooms can also cause human health issues.
For this reason, there has been a push over time to move from individual septic systems to
community sewage treatment. Such a transition can cost in the range of $15,000 to $20,000. 35
31 Department of Energy, Best Practice Guidelines for Residential PACE Financing Programs (Nov. 18, 2016),
https://www.energy.gov/sites/prod/files/2016/11/f34/best-practice-guidelines-RPACE.pdf (last visited April 5, 2023).
32 See, e.g., Palm Beach County, Ord. No. 2017-012, Section 6. Disclosure Requirements
https://discover.pbcgov.org/resilience/PDF/PACE_ORDINANCE_2017-012%20-%20ADA%20Compliant.pdf (last visited April 5, 2023).
33 Onsite Sewage, Florida Department of Health, last modified Oct 20, 2020, available at
http://www.floridahealth.gov/environmental-health/onsite-sewage/index.html (last accessed April 14, 2023)
34 Benita Goldstein, “Failing septic tanks damaging state’s environment; will cost billions of dollars to replace,” Apr. 22,
2019, South Florida Sun Sentinel, available at https://www.sun-sentinel.com/opinion/commentary/fl-op-com-septic-tanks20190422-
story.html (last accessed April 14, 2023).
35 Terri Lowery, “Cities, Counties Need Plan to Switch Septic to Sewer,” May 14, 2016, Florida Today, available at
https://www.floridatoday.com/story/opinion/columnists/guest-columns/2016/05/14/cities-counties-need-plan-switch-
septicsewer/84295648/ (last accessed April 14, 2023).
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Effect of the Bill
The bill makes several changes to Florida’s PACE law.
Definitions
The bill creates and uses the term “qualifying improvement program” to refer to the programs used in
Florida to finance qualifying improvements and creates definitions for additional terms related to these
programs, as follows:
Qualifying improvement program means a program established by a local government, alone or
in partnership with other local governments or a program administrator, to finance qualifying
improvements on residential or commercial real property.
Program administrator means an entity, including, but not limited to, a for-profit or not-for-profit
entity, with which a local government has contracted to administer a qualifying improvement
program.
Residential property means a residential real property composed of four or fewer dwelling units
which has been or will be improved by a qualifying improvement.
Commercial property means real property not defined as residential property which will be or
has been improved by a qualifying improvement, including, but not limited to, the following:
o A multifamily residential property composed of five or more dwelling units;
o A commercial real property;
o An industrial building or property;
o An agricultural property;
o A nonprofit-owned property;
o A long-term care facility, including nursing homes and assisted living facilities; or
o A government commercial property.
Government commercial property means real property owned by a local government and leased
to a nongovernmental lessee where the usage by the lessee meets the definition of commercial
property.
Nongovernmental lessee means a person or an entity other than a local government which
leases government commercial property.
Qualifying improvement contractor means an independent contractor who has been enrolled
under a qualifying improvement program to install or otherwise perform work on qualifying
improvements financed through the program.
Eligible Qualifying Improvements
The bill amends the definition of “qualifying improvements” to expand the types of projects a
qualifying improvement program may finance.
For residential property, the bill adds wastewater improvements as qualifying improvements.
Wastewater improvements include the following:
The removal, replacement or improvement of an onsite sewage treatment and disposal system
with a secondary or advanced onsite sewage treatment and disposable system or technology;
The replacement or conversion of an onsite sewage and disposal system to a central sewerage
system or distributed sewerage system; and
Any removal, repair, or modification made to an onsite sewage treatment and disposal system.
For commercial property, the bill adds the following as qualifying improvements:
Energy conservation and efficiency improvements necessary to achieve a sustainable building
rating or compliance with a national model green building code; and
Resiliency improvements, including creation or improvement of stormwater and flood resiliency
(including shoreline improvements) and any other improvements: (a) necessary to achieve a
sustainable building rating or compliance with a national model resiliency standard; or (b) made
to achieve wind or flood insurance rate reductions, including building elevation.
Other Uses for PACE Financing
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The bill expands the authorized uses of PACE financing. First, the bill specifies that PACE financing
may be used to refinance qualifying improvements on any eligible property. Second, the bill authorizes
new uses for PACE financing on commercial property, including wind resistance improvements on
property under new construction and improvements by nongovernmental lessees to government
commercial property. The bill provides that a financing agreement for government commercial property
must be executed by the nongovernmental lessee with the written consent of the governmental lessor,
with evidence of this consent provided to the local government operating the qualifying improvement
program. A financing agreement with the nongovernmental lessee must provide that the lessee is the
only party obligated to pay the assessment.
Eligibility Requirements for PACE Financing
The bill provides that a financing agreement for a residential property may not be approved unless the
local government or program administrator acting on its behalf has reasonably determined that, in
addition to the requirements in current law, the following conditions have been met:
The property owner is current on all mortgage debt on the property and has had no more than
one late payment exceeding 30 days during the 12 months immediately preceding the
application date.
The property owner has acknowledged in writing disclosure statements required by the bill, as
described below.
The property is within the geographic boundaries of the applicable qualifying improvement
program.
The term of the financing agreement does not exceed:
o For a single qualifying improvement, the estimated useful life36 of the qualifying
improvement.
o For multiple qualifying improvements, the lesser of (a) thirty years or (b) the greater of
either the weighted average estimated useful life of all qualifying improvements being
financed or the estimated useful life of the qualifying improvements to which the greatest
portion of funds is disbursed.
The property owner has not been subject to a bankruptcy proceeding within the last 5 years
unless it was discharged or dismissed more than 2 years before the application date for
financing.
The property is not subject to an existing home equity conversion mortgage or reverse
mortgage product.
The property is not currently a residential property gifted to a homeowner for free by a nonprofit
entity as may be disclosed by the property owner. The failure of a property owner to disclose
information set forth in this paragraph does not invalidate a financing agreement or any
obligation thereunder.
The property owner has obtained estimates from at least two unaffiliated, competitive entities,
one of which is a qualifying improvement contractor, for the qualifying improvement to be
financed.
The local government or program administrator, as applicable, has asked if the property owner
has obtained or sought to obtain additional qualifying improvements on the same property that
have not yet been recorded.37
The bill modifies eligibility requirements for commercial property as follows:
Delinquency in payment of property taxes or other assessments on a property during the
preceding 3 years do not preclude the use of PACE financing if such taxes and assessments
are current.
Involuntary liens on a property do not preclude the use of PACE financing if not greater than
$10,000.
36 The bill provides that the useful life of a qualifying improvement must be established third -party standards, including certification
criteria from government agencies or nationally recognized standards and testing organizations.
37 The bill provides that the failure of a property owner to disclose this information does not invalidate a financing agreement or any
obligation thereunder, even if the total financed amount of the qualifyin g improvement exceeds the amount that would otherwise be
authorized.
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Recorded notices of default or other evidence of property-based debt delinquency during the
preceding 3 years do not preclude use of PACE financing if released during that time.
Further, the bill requires that, prior to entering into a financing agreement with a commercial property
owner, the local government must have the written consent of the current holders or servicers of any
mortgage that encumbers or is otherwise secured by the property (or that will be secured by the
property at the time the financing agreement is executed by the local government).
Ability to Repay for Residential Property Owners
The bill requires that, prior to approval of financing for a qualifying improvement on residential property,
the local government or program administrator, as applicable, must reasonably determine that the
property owner has the ability to pay the annual non-ad valorem assessment for the qualifying
improvement, based on information contained in the property owner's application, reasonably reliable
third-party records, or an automated verification system. To make this determination, the local
government or program administrator must review the property owner's household income, 38 housing
expenses, assets, and other debt obligations. In reviewing ability to pay, the local government or
program administrator:
When determining household income, may include the income of any property owner aged 18
years old or older whose name is on the property title, provided that if a person's income is
considered, that person's debt obligations must also be considered.
May not consider the equity in the property that will secure the non-ad valorem assessment.
Must determine the property owner's debt obligations using reasonably reliable third-party
records, including, at a minimum, one consumer credit report from an agency that meets the
requirements of 15 U.S.C. s. 1681a(p). Debt obligations to be reviewed include secured and
unsecured debt, housing expenses,39 and stated alimony or child support obligations.
Must determine whether the property owner has sufficient income to pay the annual non-ad
valorem assessment and that he or she has sufficient residual income to meet his or her
household living expenses.
To participate in a qualifying improvement program, the bill requires that a residential property owner
must have a total debt-to-income ratio no higher than 49 percent.
Debt-to-Value Limitations on PACE Assessments for Residential Property Owners
Under current law, the total amount of any PACE assessment on residential property may not exceed
20 percent of a property’s just value, without consent of the holder or servicer of a mortgage secured by
a property. The bill replaces the “just value” standard in current law 40 with a “fair market value”
standard. The bill requires that fair market value be determined by the written report of a certified
residential appraiser under ch. 475, F.S.
The bill further provides that, for residential property, the combined mortgage-related debt and the total
amount of any PACE assessments on the property may not exceed 97 percent of the property’s fair
market value, absent consent of the holder or servicer of a mortgage secured by the property.
However, this limit can be exceeded if a property owner fails to disclose whether other PACE
assessments have already been recorded, or funded but no yet recorded, on the property.
Disclosures to Residential Property Owners
The bill requires that local government or program administrator, as applicable, to develop a written
disclosure form that must be provided to a residential property owner before executing a financing
38 The bill provides that if the local government or program administrator uses an automated verification system, it must be a s ystem
that can verify the property owner's income, is not based on predictive or estimation methodologies, and has been determined sufficient
for such verification purposes by a federal mortgage lending authority or regulator.
39 The bill provides that the local government or program administrator must make a reasonable estimate of the basic housing
expenses based on the number of persons in the household.
40 Under current law, “just value” is the value of the property as determined by the county property appraiser.
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agreement. This disclosure may be presented to the property owner in electronic format and must
contain the following key terms:
A description of the qualifying improvement;
The estimated total financed amount, including the cost of the qualifying improvement, ancillary
work, program fees, and prepaid interest, if any;
The annual non-ad valorem assessment process and estimated annual payment schedule;
The estimated amount of the annual non-ad valorem assessment;
The term of the total financed amount;
The interest rate for the financed amount;
The estimated annual percentage rate;
The total estimated annual costs that the residential property owner will have to pay under the
assessment contract, including program fees;
The total estimated average monthly equivalent of funds the residential property owner would
have to save per month in order to pay the annual costs of the non-ad valorem assessment,
including program fees;
The estimated date when the residential property owner's first property tax payment that
includes the non-ad valorem assessment, will be due.
The bill requires that the written disclosure form must also contain the following statements, which must
be individually acknowledged in writing by the residential property owner :
"I UNDERSTAND THAT IF I SELL OR REFINANCE THE PROPERTY, I MAY BE REQUIRED
TO PAY OFF THE OUTSTANDING FINANCED AMOUNT AS A CONDITION OF THE SALE
OR THE REFINANCE OF THE PROPERTY." (This disclosure must be made in 24-point, bold
font.)
"I understand that the annual non-ad valorem assessment will be paid when property taxes are
paid and will result in a lien being placed on my property."
"I understand that the annual non-ad valorem assessment will be added to my property tax bill,
and if I pay my property taxes through my mortgage payment using an escrow account, I must
notify my mortgage lender."
"I understand that if I fail to pay the annual non-ad valorem assessment, I may incur penalties
and fees and the local government could issue a tax certificate which might result in the loss of
my property."
“I understand that any potential utility or insurance savings are not guaranteed and will not
reduce the annual non-ad valorem assessment or total assessment amount.”
"I understand that I have 5 days to cancel the financing agreement. The 5-day right expires on
midnight of the fifth business day after I sign the agreement."
“I understand that the local government, program administrator, or qualifying improvement
contractor do not provide tax advice and that I should seek professional tax advice if I have
questions regarding tax credits, tax deductibility, or other tax impacts of the qualifying
improvement or the assessment contract.
"I understand that I cannot be assessed a penalty if I prepay the outstanding financed amount."
The bill provides that a printed or electronic cancellation form must be provided to the property owner
no later than the time the property owner signs the financing agreement which allows the property
owner to cancel the contract.
The bill provides that the local government or program administrator, before a notice to proceed is
issued on residential property, must conduct an oral, recorded telephone call with the property owner or
an authorized representative. The program administrator must ask the property owner or authorized
representative if he or she would like to communicate primarily in a language other than English and
must use plain language. On the telephone call, the local government or program administrator must
confirm all of the following with the property owner or authorized representative:
That at least one property owner has access to a copy of the financing agreement and financing
estimates and disclosures.
The qualifying improvements being financed.
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The total estimated annual costs that the property owner will have to pay under the financing
agreement, including program fees.
The total estimated average monthly equivalent amount of funds the property owner would have
to save in order to pay the annual costs of the assessment, including program fees.
The estimated due date for the property owner's first property tax payment that includes the
assessment.
The term of the financing agreement.
That payments for the financing agreement will cause the property owner's annual property tax
bill to increase, and that payments will be made through an additional annual non-ad valorem
assessment on the property and either will be paid directly to the county tax collector's office as
part of the total annual secured property tax bill or may be paid through the property owner's
mortgage escrow account.
That the property owner has disclosed whether the property has received, or the owner is
seeking, additional non-ad valorem assessments funded under this program and that the owner
has disclosed all other such assessments which are or will be placed on the property.
That the property will be subject to a lien during the term of the financing agreement and that
the obligations under the agreement may be required to be paid in full before the property owner
sells or refinances the property.
That any potential utility or insurance savings are not guaranteed and will not reduce the annual
non-ad valorem assessment or total assessment amount.
That the local government, program administrator, or qualifying improvement contractor does
not provide tax advice, and the property owner should seek professional tax advice if he or she
has questions regarding tax credits, tax deductibility, or other tax impacts of the qualifying
improvement or the financing agreement.
The local government or program administrator may not leave a voicemail to satisfy this requirement.
Financing Agreements
The bill limits the term of a financing agreement for a single qualifying improvement to the estimated
useful life41 of the improvement. For multiple qualifying improvements, the term of a financing
agreement is limited to the lesser of: (1) 30 years; or (2) the greater of either the weighted average
estimated useful life of all qualifying improvements being financed or the estimated useful life of the
qualifying improvements to which the greatest portion of funds is disbursed.
The bill prohibits a financing agreement on residential property from including a negative amortization
schedule,42 a balloon payment, or prepayment fees other than nominal administrative costs.
The bill allows a residential property owner to cancel a financing agreement, without any financial
penalty from the program administrator, within 5 business days after signing the financing agreement.
The bill provides for relief to such property owners if a contractor has begun work on, or delivered
chattel or fixtures to, the property when the property owner has exercised timely its right to cancel the
financing agreement.
For qualifying improvements to commercial property, the bill provides that a financing agreement may
be executed before a certificate of occupancy or similar evidence of substantial completion of new
construction or improvement is issued. Further, the bill provides that progress payments, or payments
made before completion, are allowed for commercial property if the property owner, upon request for a
final progress payment, subsequently provides written verification that the qualifying improvements are
completed and operating as intended.
Qualifying Improvement Contractors
41 The bill provides that the local government or program administrator, as applicable, shall determine the useful life of a qualifying
improvement using established third-party standards, including certification criteria from government agencies or nationally recognized
standards and testing organizations.
42 The bill provides that capitalized interest included in the original balance of the assessment financing agreement does not constitute
negative amortization.
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The bill establishes terms for the enrollment and oversight of qualifying improvement contractors by the
local governments or program administrator, as applicable. These provisions apply only with respect to
improvements to residential property.
Before enrolling a contractor to install qualifying improvements, the bill provides that a local government
or program administrator, as applicable, must make a reasonable effort to review that the contractor
maintains in good standing an appropriate license from the state, if applicable, as well as any other
permit, license, or registration required for engaging in business in the jurisdiction in which he or she
operates and that the contractor maintains all state-required bond and insurance coverage. Each local
government or program administrator must also obtain the contractor's written agreement that the
contractor will act in accordance with all applicable laws, including applicable advertising and marketing
laws and regulations.
The bill further provides that each local government or program administrator must maintain a process
to enroll new contractors which includes reasonable review of the following for each contractor: relevant
work or project history; financial and reputational background checks; a criminal background check; and
status on the Better Business Bureau online platform or another online platform that tracks contractor
reviews. Each local government or program administrator must also establish and maintain a process
for monitoring qualifying improvement contractors with regard to performance and compliance with
program policies and must implement policies for suspending, reinstating, and terminating qualifying
improvement contractors based on violations of program policies or unscrupulous behavior.
The bill prohibits a program administrator, either directly or through an affiliate, from becoming enrolled
as a qualifying improvement contractor.
Before disbursing funds to a contractor for a qualifying improvement on residential property, the local
government or program administrator must first confirm that the applicable work or service has been
completed and that the final permit for the qualifying improvement has been closed with all permit
requirements satisfied.
The bill prohibits a local government or program administrator from disclosing to a qualifying
improvement contractor or to a third party engaged in soliciting assessment contracts the maximum
financing amount for which a residential property owner is eligible. Program administrators are also
prohibited from providing a qualifying improvement contractor with any payment, fee, or kickback in
exchange for referring financing business relating to a financing agreement on residential property. The
bill provides, however that a local government or program administrator may provide information or
services to a qualifying improvement contractor to facilitate the installation of a qualifying improvement
for a property owner.
The bill prohibits a qualifying improvement contractor from providing a different price for a qualifying
improvement financed under a qualifying improvement program than the contractor would otherwise
reasonably provide if the qualifying improvement was not being financed through a financing
agreement under a qualifying improvement program.
Qualifying Improvement Program Marketing
The bill prohibits local governments, program administrators, or qualifying improvement contractors, or
any third party engaged in marketing on behalf of these entities, from representing to residential
property owners:
A non-ad valorem assessment under a qualifying improvement program is a government
assistance program;
qualifying improvements are free or that financing related to a non-ad valorem assessment
under a qualifying improvement program is free or provided at no cost;
The financing of a qualifying improvement under a qualifying improvement program does not
require the property owner to repay the financial obligation; or
The tax deductibility of a non-ad valorem assessment under a qualifying improvement program.
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The bill provides that a qualifying improvement contractor or third party engaged in marketing a
qualifying improvement program may not advertise the availability of financing agreements or solicit
residential property owners on behalf of the local government or program administrator unless:
The qualifying improvement contractor or third party maintains the appropriate registration or
certification from the Construction Industry Licensing Board or any other permit, license, or
registration required to conduct business in the jurisdiction in which it operates and provides
proof of having the required bond and insurance coverage amounts; and
The local government or program administrator, as applicable, obtains the qualifying
improvement contractor's or third party's written agreement that the qualifying improvement
contractor or third party will comply with applicable laws and rules and qualifying improvement
program policies and procedures, including those on advertising and marketing.
The bill also provides that a local government or program administrator may not reimburse a qualifying
improvement contractor or third party for its expenses in advertising and marketing campaigns and
materials. However, a local government or program administrator, as applicable, and a qualifying
improvement contractor may share expenses in connection with joint advertising and marketing
campaigns and materials if the expenses are shared on a commercially reasonable basis.
Under the bill, a program administrator may not provide any direct cash payment or other thing of
material value to a property owner explicitly conditioned upon the property owner entering into a
financing agreement. However, a program administrator may offer programs or promotions that provide
reduced fees or interest rates if the reduced fees or interest rates are reflected in the financing
agreements and are not provided to the property owners as cash consideration.
Annual Report
The bill requires each local government that has authorized a qualifying improvement program to post
on its website, by April 1 of each year, an annual report for the previous calendar year. Each annual
report must include the following information:
The number of qualifying improvements funded.
The aggregate, average, and median dollar amounts of annual non-ad valorem assessments
and the total number of non-ad valorem assessments that funded qualifying improvements.
The percentage, number, and dollar value of non-ad valorem assessments that funded
qualifying improvements, aggregated by the category types consisting of energy efficiency,
renewable energy, wind resistance, residential property wastewater, commercial property
resiliency, and other commercial property qualifying improvements.
The number of defaulted non-ad valorem assessments, including the total number and
defaulted amount, the number and dates of missed payments, the total number of parcels
defaulted and the years in default, and the percentage of defaults by total assessments.
A summary of all reported complaints received by the local government and its program
administrators related to authorized qualifying improvements programs, including the resolution
of each complaint.
Estimated number of jobs created.
The number and percentage of homeowners 60 years of age or older participating in a
qualifying improvement program.
Other Provisions
The bill updates disclosures required by sellers of real property for which a non-ad valorem assessment
has been levied under a qualifying improvement program to reflect the additional types of qualifying
improvements authorized by the bill.
The bill provides that a notice of lien for the full amount of the financing may be recorded in the public
records of the county where the property is located and that the lien shall not be enforceable in a
manner that results in the acceleration of the remaining nondelinquent unpaid balance under the
financing agreement.
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The bill provides that an assessment on commercial property for a qualifying improvement is subject to
a maximum annual fee of 1 percent of the annual assessment collected or $5,000, whichever is less.
The bill requires program administrators to develop and implement policies and procedures for
responding to, tracking, and helping to resolve questions and property owner complaints.
The bill provides that it is prospective only and does not affect or amend any existing PACE
assessment or interlocal agreement between local governments.
B. SECTION DIRECTORY:
Section 1. Amends s. 163.08, F.S., relating to supplemental authority for improvements to 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.
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DATE: 4/23/2023
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
To the extent that a local government or program administrator does not already impose measures
similar to those in the bill, the bill may impose costs on qualifying improvement program administrators.
However, by expanding eligible uses for PACE financing, the bill may result in expanded use of PACE
financing, and, in turn, program administrators may earn additional revenues on PACE loans.
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 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 does not require or authorize rulemaking.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
PCS for CS/HB 669 2023
1 A bill to be entitled
2 An act relating to improvements to real property;
3 amending s. 163.08, F.S.; revising legislative intent;
4 defining and revising terms; authorizing a residential
5 or commercial property owner to apply to a qualifying
6 improvement program for funding to finance an
7 improvement and to enter into a financing agreement
8 with the local government or program administrator;
9 providing that a non-ad valorem assessment on certain
10 commercial property is subject to a certain fee;
11 specifying requirements of a financing agreement for
12 government commercial property; revising and
13 specifying public recording requirements for
14 assessment financing agreements and notices of lien;
15 revising requirements that apply to local governments
16 and program administrators in determining eligibility
17 for assessment financing; revising requirements for
18 qualifying improvements; revising the calculation of
19 non-ad valorem assessment limits; providing
20 construction; specifying underwriting, financing
21 estimate, disclosure, and confirmation requirements
22 for program administrators; restricting what
23 improvements may be covered in certain agreements
24 between local governments and commercial property
25 owners; revising notice and consent requirements
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26 regarding a property owner's intent to enter into a
27 financing agreement; revising the seller's disclosure
28 statement for residential and commercial properties
29 offered for sale; authorizing a residential real
30 property owner, under certain circumstances and within
31 a certain timeframe, to cancel a financing agreement
32 without financial penalty; specifying limitations on
33 financing agreement terms for residential real
34 property; prohibiting certain financing terms for
35 residential real property; specifying requirements
36 for, and certain prohibited acts by, program
37 administrators relating to financing agreements and
38 contractors for qualifying improvements to residential
39 real property; specifying annual reporting
40 requirements for local governments; providing
41 construction; providing an effective date.
42
43 Be It Enacted by the Legislature of the State of Florida:
44
45 Section 1. Section 163.08, Florida Statutes, is amended to
46 read:
47 163.08 Supplemental authority for improvements to real
48 property.—
49 (1)(a) In chapter 2008-227, Laws of Florida, the
50 Legislature amended the energy goal of the state comprehensive
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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
PCS for CS/HB 669 2023
51 plan to provide, in part, that the state shall reduce its energy
52 requirements through enhanced conservation and efficiency
53 measures in all end-use sectors and reduce atmospheric carbon
54 dioxide by promoting an increased use of renewable energy
55 resources. That act also declared it the public policy of the
56 state to play a leading role in developing and instituting
57 energy management programs that promote energy conservation,
58 energy security, and the reduction of greenhouse gases. In
59 addition to establishing policies to promote the use of
60 renewable energy, the Legislature provided for a schedule of
61 increases in energy performance of buildings subject to the
62 Florida Energy Efficiency Code for Building Construction. In
63 chapter 2008-191, Laws of Florida, the Legislature adopted new
64 energy conservation and greenhouse gas reduction comprehensive
65 planning requirements for local governments. In the 2008 general
66 election, the voters of this state approved a constitutional
67 amendment authorizing the Legislature, by general law, to
68 prohibit consideration of any change or improvement made for the
69 purpose of improving a property's resistance to wind damage or
70 the installation of a renewable energy source device in the
71 determination of the assessed value of residential real
72 property.
73 (b) The Legislature finds that all energy-consuming-
74 improved properties that are not using energy conservation
75 strategies contribute to the burden affecting all improved
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76 property resulting from fossil fuel energy production. Improved
77 property that has been retrofitted with energy-related
78 qualifying improvements receives the special benefit of
79 alleviating the property's burden from energy consumption. All
80 improved properties not protected from wind damage by wind
81 resistance qualifying improvements contribute to the burden
82 affecting all improved property resulting from potential wind
83 damage. Improved commercial property constructed or that has
84 been retrofitted with resiliency qualifying improvements and
85 improved residential property retrofitted with wind resistance
86 qualifying improvements receive receives the special benefit of
87 reducing the property's burden from potential wind damage.
88 Further, the installation and operation of qualifying
89 improvements not only benefit the affected properties for which
90 the improvements are made, but also assist in fulfilling the
91 goals of the state's energy and hurricane mitigation policies.
92 Residential properties that do not use advanced technologies for
93 wastewater removal contribute to the water quality problems
94 affecting this state, particularly the coastal areas. Improved
95 residential property that has been retrofitted with an advanced
96 onsite sewage treatment and disposal system or has been
97 converted to central sewerage significantly benefits the quality
98 of water that may enter streams, lakes, rivers, aquifers, or
99 coastal areas.
100 (c) In order to make qualifying improvements more
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101 affordable and assist property owners who wish to undertake such
102 improvements, the Legislature finds that there is a compelling
103 state interest in enabling property owners to voluntarily
104 finance such improvements with local government assistance.
105 (d)(c) The Legislature determines that the actions
106 authorized under this section, including, but not limited to,
107 the financing of qualifying improvements through the execution
108 of financing agreements and the related imposition of voluntary
109 assessments are reasonable and necessary to serve and achieve a
110 compelling state interest and are necessary for the prosperity
111 and welfare of the state and its property owners and
112 inhabitants.
113 (2) As used in this section, the term:
114 (a) "Commercial property" means real property not defined
115 as residential property which will be or has been improved by a
116 qualifying improvement, including, but not limited to, the
117 following:
118 1. A multifamily residential property composed of five or
119 more dwelling units;
120 2. A commercial real property;
121 3. An industrial building or property;
122 4. An agricultural property;
123 5. A nonprofit-owned property;
124 6. A long-term care facility, including nursing homes and
125 assisted living facilities; or
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126 7. A government commercial property.
127 (b) "Facility" means any portion of a building, structure,
128 or site improvement located on a site as defined in s. 202 of
129 the 2020 Florida Building Code.
130 (c) "Government commercial property" means real property
131 owned by a local government and leased to a nongovernmental
132 lessee where the usage by the lessee meets the definition of
133 commercial property.
134 (d)(a) "Local government" means a county, a municipality,
135 a dependent special district as defined in s. 189.012, or a
136 separate legal entity created pursuant to s. 163.01(7).
137 (e) "Nongovernmental lessee" means a person or an entity
138 other than a local government which leases government commercial
139 property.
140 (f) "Program administrator" means an entity, including,
141 but not limited to, a for-profit or not-for-profit entity, with
142 which a local government has contracted to administer a
143 qualifying improvement program.
144 (g) "Qualifying improvement contractor" means an
145 independent contractor who has been enrolled under a qualifying
146 improvement program to install or otherwise perform work on
147 qualifying improvements financed through the program.
148 (h) "Qualifying improvement program" means a program
149 established by a local government, alone or in partnership with
150 other local governments or a program administrator, to finance
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151 qualifying improvements on residential or commercial real
152 property.
153 (i)(b) "Qualifying improvements": improvement”
154 1. For residential property, includes any:
155 a.1. Energy conservation and efficiency improvement, which
156 is a measure to reduce consumption through conservation or a
157 more efficient use of electricity, natural gas, propane, or
158 other forms of energy on the property, including, but not
159 limited to, air sealing; installation of insulation;
160 installation of energy-efficient heating, cooling, or
161 ventilation systems; building modifications to increase the use
162 of daylight; replacement of windows; installation of energy
163 controls or energy recovery systems; installation of electric
164 vehicle charging equipment; and installation of efficient
165 lighting equipment.
166 b.2. Renewable energy improvement, which is the
167 installation of any system in which the electrical, mechanical,
168 or thermal energy is produced from a method that uses one or
169 more of the following fuels or energy sources: hydrogen, solar
170 energy, geothermal energy, bioenergy, and wind energy.
171 c.3. Wind resistance improvement, which includes, but is
172 not limited to:
173 (I)a. Improving the strength of the roof deck attachment;
174 (II)b. Creating a secondary water barrier to prevent water
175 intrusion;
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176 (III)c. Installing wind-resistant shingles;
177 (IV)d. Installing gable-end bracing;
178 (V)e. Reinforcing roof-to-wall connections;
179 (VI)f. Installing storm shutters; or
180 (VII)g. Installing opening protections.
181 d. Wastewater improvement, which includes, but is not
182 limited to:
183 (I) The removal, replacement, or improvement of an onsite
184 sewage treatment and disposal system with a secondary or
185 advanced onsite sewage treatment and disposal system or
186 technology;
187 (II) The replacement or conversion of an onsite sewage
188 treatment and disposal system to a central sewerage system or
189 distributed sewerage system, including, but not limited to, the
190 installation of a sewer lateral and anything necessary to
191 connect the onsite sewage treatment and disposal system or the
192 building's plumbing to a central sewerage system or distributed
193 sewerage system; or
194 (III) Any removal, repairs, or modifications made to an
195 onsite sewage treatment and disposal system, including any
196 repair, modification, or replacement of a system required under
197 a local ordinance enacted pursuant to ss. 381.0065 and
198 381.00651.
199 2. For commercial property, includes any:
200 a. Energy conservation and efficiency improvement, which
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201 is a measure to reduce consumption through conservation or a
202 more efficient use of electricity, natural gas, propane, or
203 other forms of energy on the property, including, but not
204 limited to, air sealing; installation of insulation;
205 installation of energy-efficient heating, cooling, or
206 ventilation systems; building modifications to increase the use
207 of daylight; replacement of windows; installation of energy
208 controls or energy recovery systems; installation of electric
209 vehicle charging equipment; installation of efficient lighting
210 equipment; or any other improvements necessary to achieve a
211 sustainable building rating or compliance with a national model
212 green building code.
213 b. Renewable energy improvement, which is the installation
214 of any system in which the electrical, mechanical, or thermal
215 energy is produced from a method that uses one or more of the
216 following fuels or energy sources: hydrogen, solar energy,
217 geothermal energy, bioenergy, and wind energy.
218 c. Resiliency improvement, which includes, but is not
219 limited to:
220 (I) Improving the strength of the roof deck attachment;
221 (II) Creating a secondary water barrier to prevent water
222 intrusion;
223 (III) Installing wind-resistant shingles;
224 (IV) Installing gable-end bracing;
225 (V) Reinforcing roof-to-wall connections;
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226 (VI) Installing storm shutters;
227 (VII) Installing opening protections;
228 (VIII) Creating or improving stormwater and flood
229 resiliency, including shoreline improvements; or
230 (IX) Making any other improvements necessary to achieve a
231 sustainable building rating or compliance with a national model
232 resiliency standard and any improvements to a structure to
233 achieve wind or flood insurance rate reductions, includ ing
234 building elevation.
235 (j) "Residential property" means a residential real
236 property composed of four or fewer dwelling units which has been
237 or will be improved by a qualifying improvement.
238 (3) A local government may levy non-ad valorem assessments
239 to fund qualifying improvements.
240 (4) Subject to local government ordinance or resolution, a
241 residential or commercial property owner may apply to the
242 qualifying improvement program local government for funding to
243 finance a qualifying improvement and enter into a financing
244 agreement with the local government. Costs incurred by the local
245 government for such purpose may be collected as a non -ad valorem
246 assessment. A non-ad valorem assessment must shall be collected
247 pursuant to s. 197.3632 and, notwithstanding s. 197.3632(8)(a),
248 is shall not be subject to discount for early payment. However,
249 the notice and adoption requirements of s. 197.3632(4) do not
250 apply if this section is used and complied with, and the intent
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251 resolution, publication of notice, and mailed notices to the
252 property appraiser, tax collector, and Department of Revenue
253 required by s. 197.3632(3)(a) may be provided on or before
254 August 15 in conjunction with any non-ad valorem assessment
255 authorized by this section, if the property appraiser, tax
256 collector, and local government agree. A non-ad valorem
257 assessment on a commercial property securing financing for a
258 qualifying improvement, notwithstanding ss. 192.091(2)(b) and
259 197.3632(8)(c), is subject to a maximum annual fee of 1 percent
260 of the annual non-ad valorem assessment collected or $5,000,
261 whichever is less.
262 (5) Pursuant to this section or as otherwise provided by
263 law or pursuant to a local government's home rule power, a local
264 government may enter into a partnership with one or more local
265 governments for the purpose of providing and financing
266 qualifying improvements.
267 (6) A qualifying improvement program may be administered
268 by a for-profit entity or a not-for-profit organization on
269 behalf of and at the discretion of the local government.
270 (7) A local government may incur debt for the purpose of
271 providing financing for qualifying such improvements, which debt
272 is payable from revenues received from the improved property , or
273 any other available revenue source authorized by law.
274 (8)(a) A local government may enter into a financing
275 agreement to finance or refinance a qualifying improvement only
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276 with the record owner of the affected property. For government
277 commercial property, the financing agreement must be executed by
278 the nongovernmental lessee with the written consent of the
279 governmental lessor. Evidence of such consent must be provided
280 to the local government. The financing agreement with a
281 nongovernmental lessee must provide that the nongovernmental
282 lessee is the only party obligated to pay the assessment .
283 (b) Any financing agreement entered into pursuant to this
284 section or a summary memorandum of such agreement must shall be
285 submitted for recording recorded in the public records of the
286 county within which the property is located by the sponsoring
287 unit of local government within 10 5 days after execution of the
288 agreement. The recorded agreement provides shall provide
289 constructive notice that the non-ad valorem assessment to be
290 levied on the property constitutes a lien of equal dignity to
291 county taxes and assessments from the date of recordation. A
292 notice of lien for the full amount of the financing may be
293 recorded in the public records of the county where the property
294 is located. Such lien shall not be enforceable in a manner that
295 results in the acceleration of the remaining nondelinquent
296 unpaid balance under the assessment financing agreement.
297 (9)(a) Before entering into A financing agreement for a
298 residential property may not be approved unless, the local
299 government, or the program administrator acting on its behalf,
300 has shall reasonably determined determine that all of the
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301 following conditions have been met:
302 1. All property taxes and any other assessments levied on
303 the same bill as property taxes are current paid and have not
304 been delinquent for the preceding 3 years or the property
305 owner's period of ownership, whichever is less.; that
306 2. There are no involuntary liens, including, but not
307 limited to, construction liens on the property.; that
308 3. No notices of default or other evidence of property -
309 based debt delinquency have been recorded during the preceding 3
310 years or the property owner's period of ownership, whichever is
311 less.; and that
312 4. The property owner is current on all mortgage debt on
313 the property and has had no more than one late payment exceeding
314 30 days during the 12 months immediately preceding the
315 application date.
316 5. The property owner has acknowledged in writing the
317 disclosure statements required by paragraph (12)(b) .
318 6. The property is within the geographic boundaries of the
319 applicable qualifying improvement program.
320 7. The term of the financing agreement does not exceed:
321 a. For a single qualifying improvement, the estimated
322 useful life of the qualifying improvement.
323 b. For multiple qualifying improvements, the lesser of:
324 (I) Thirty years; or
325 (II) The greater of either the weighted average estimated
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326 useful life of all qualifying improvements being financed or the
327 estimated useful life of the qualifying improvements to which
328 the greatest portion of funds is disbursed.
329
330 The local government or program administrator, as applicable,
331 shall determine the useful life of a qualifying improvement
332 using established third-party standards, including certification
333 criteria from government agencies or nationally recognized
334 standards and testing organizations.
335 8. The property owner has not been subject to a bankruptcy
336 proceeding within the last 5 years unless it was discharged or
337 dismissed more than 2 years before the date on which the
338 property owner applied for funding as set forth in subsection
339 (4);
340 9. The property is not subject to an existing home equity
341 conversion mortgage or reverse mortgage product.
342 10. The property is not currently a residential property
343 gifted to a homeowner for free by a nonprofit entity as may be
344 disclosed by the property owner. The failure of a property owner
345 to disclose information set forth in this paragraph does not
346 invalidate a financing agreement or any obligation thereunder.
347 11. The property owner has obtained estimates from at
348 least two unaffiliated, competitive entities, one of which is a
349 qualifying improvement contractor, for the qualifying
350 improvement to be financed.
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351 12. The local government or program administrator, as
352 applicable, has asked if the property owner has obtained or
353 sought to obtain additional qualifying improvements on the same
354 property that have not yet been recorded. The failure of a
355 property owner to disclose information set forth in this
356 subsection does not invalidate a financing agreement or any
357 obligation thereunder, even if the total financed amount of the
358 qualifying improvement exceeds the amount that would otherwise
359 be authorized under paragraph (15)(a).
360
361 The existence of a prior qualifying improvement non -ad valorem
362 assessment or a prior financing agreement is not evidence that
363 the financing agreement under consideration is affordable or
364 meets other program requirements.
365 (b) A financing agreement for a commercial property may
366 not be approved unless the local government, or the program
367 administrator acting on its behalf, has reasonably determined
368 that all of the following conditions have been met:
369 1. All property taxes and any other assessments levied on
370 the same bill as property taxes are current.
371 2. There are no involuntary liens greater than $10,000,
372 including, but not limited to, construction liens on the
373 property.
374 3. No notices of default or other evidence of property-
375 based debt delinquency have been recorded and not released
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376 during the preceding 3 years or the property owner's period of
377 ownership, whichever is less.
378 4. The property owner is current on all mortgage debt on
379 the property.
380 (10) In addition to obtaining the information in
381 subsection (9)(a), and before a local government or program
382 administrator, as applicable, approves a qualifying improvement
383 on residential property, the local government or program
384 administrator must use information contained in the property
385 owner's application, reasonably reliable third-party records, or
386 an automated verification system to reasonably determine whether
387 the property owner has the ability to pay the annual non -ad
388 valorem assessment for the qualifying improvement. The local
389 government or program administrator, as applicable, must review
390 the property owner's household income, housing expenses, assets,
391 and other debt obligations. If the local government or program
392 administrator, as applicable, uses an automated verification
393 system, it must be a system that can verify the property owner's
394 income, is not based on predictive or estimation methodologies,
395 and has been determined sufficient for such verification
396 purposes by a federal mortgage lending authority or regulator.
397 In reviewing the property owner's ability to pay, the local
398 government or program administrator, as applicable:
399 (a) When determining the household income, may include the
400 income of any property owner aged 18 years old or older whose
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401 name is on the property title. If a person's income is
402 considered, that person's debt obligations must also be
403 considered.
404 (b) May not consider the equity in the property that will
405 secure the non-ad valorem assessment.
406 (c) Shall determine the property owner's debt obligations
407 using reasonably reliable third-party records, including, at a
408 minimum, one consumer credit report from an agency that meets
409 the requirements of 15 U.S.C. s. 1681a(p). Debt obligations to
410 be reviewed include:
411 1. Secured and unsecured debt.
412 2. Housing expenses. The local government or program
413 administrator, as applicable, shall make a reasonable estimate
414 of the basic housing expenses based on the number of persons in
415 the household.
416 3. Stated alimony or child support obligations.
417 (d) Shall determine whether the property owner has
418 sufficient income to pay the annual non-ad valorem assessment
419 and that he or she has sufficient residual income to meet his or
420 her household living expenses. To participate in a qualifying
421 improvement program, a residential property owner must have a
422 total debt-to-income ratio no higher than 49 percent.
423 (11) Each local government or program administrator that
424 offers a qualifying improvement program for residential
425 properties must:
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426 (a) Develop a written disclosure form, which may be
427 presented in electronic format, that must be provided to the
428 residential property owner before the property owner executes
429 the financing agreement and which contains the key terms of the
430 agreement, including:
431 1. A description of the qualifying improvement;
432 2. The estimated total financed amount, including the cost
433 of the qualifying improvement, ancillary work, program fees, and
434 prepaid interest, if any;
435 3. The annual non-ad valorem assessment process and
436 estimated annual payment schedule;
437 4. The estimated amount of the annual non-ad valorem
438 assessment;
439 5. The term of the total financed amount;
440 6. The interest rate for the financed amount;
441 7. The estimated annual percentage rate;
442 8. The total estimated annual costs that the residential
443 real property owner will have to pay under the assessment
444 contract, including program fees;
445 9. The total estimated average monthly equivalent amount
446 of funds the residential real property owner would have to save
447 in order to pay the annual costs of the non-ad valorem
448 assessment, including program fees; and
449 10. The estimated due date of the residential property
450 owner's first property tax payment that includes the non -ad
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451 valorem assessment.
452 (b) Include the following statements in the written
453 disclosure form, using the same order as listed in this
454 paragraph, each of which must be individually acknowledged in
455 writing by the residential property owner:
456 1. "I UNDERSTAND THAT IF I SELL OR REFINANCE THE PROPERTY,
457 I MAY BE REQUIRED TO PAY OFF THE OUTSTANDING FINANCED AMOUNT AS
458 A CONDITION OF THE SALE OR THE REFINANCE OF THE PROPERTY."
459
460 The previous statement must be made in at least 24-point
461 boldfaced type.
462 2. "I understand that the annual non-ad valorem assessment
463 will be paid when property taxes are paid and will result in a
464 lien being placed on my property."
465 3. "I understand that the annual non-ad valorem assessment
466 will be added to my property tax bill, and if I pay my property
467 taxes through my mortgage payment using an escrow a ccount, I
468 must notify my mortgage lender."
469 4. "I understand that if I fail to pay the annual non-ad
470 valorem assessment, I may incur penalties and fees, and the
471 local government could issue a tax certificate which might
472 result in the loss of my property."
473 5. "I understand that any potential utility or insurance
474 savings are not guaranteed and will not reduce the annual non -ad
475 valorem assessment or total assessment amount."
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476 6. "I understand that I have 5 days to cancel the
477 financing agreement. The 5-day right expires at midnight of the
478 third business day after I sign the agreement."
479 7. "I understand that the local government, program
480 administrator, or qualifying improvement contractor do not
481 provide tax advice and that I should seek professional tax
482 advice if I have questions regarding tax credits, tax
483 deductibility, or other tax impacts of the qualifying
484 improvement or the assessment contract.
485 8. "I understand that I cannot be assessed a penalty if I
486 prepay the outstanding financed amount."
487 (c) Provide a printed or electronic cancellation form to
488 the residential property owner no later than the date on which
489 the property owner signs the financing agreement which allows
490 the property owner to cancel the contract, within the 5 -day
491 period specified in subparagraph (b)6.
492 (d) Before a notice to proceed is issued, conduct, with at
493 least one residential property owner or an individual legally
494 authorized to act on behalf of the property owner, who is not
495 affiliated or associated with the local government, program
496 administrator, or qualifying improvement contractor, an oral,
497 recorded telephone call during which time the local government
498 or program administrator, as applicable, must use plain
499 language. The local government or program administrator, as
500 applicable, must ask the residential property owner or
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501 authorized representative if he or she would like to communicate
502 primarily in a language other than English and, if so, must
503 conduct the call in the owner's or representative's preferred
504 language. A local government or program administrator, as
505 applicable, may not leave a voicemail for the residential
506 property owner or authorized representative to satisfy this
507 requirement. A local government or program administrator, as
508 applicable, as part of this telephone call, must confirm with
509 the residential property owner or authorized representative:
510 1. That at least one residential property owner has access
511 to a copy of the assessment contract and financing estimates and
512 disclosures.
513 2. The qualifying improvement that is being financed.
514 3. The total estimated annual costs that the residential
515 property owner will have to pay under the assessment contract,
516 including program fees.
517 4. The total estimated average monthly equivalent amount
518 of funds the residential property owner would have to save in
519 order to pay the annual costs of the non-ad valorem assessment,
520 including program fees.
521 5. The estimated due date of the residential property
522 owner's first property tax payment that includes the non -ad
523 valorem assessment.
524 6. The term of the assessment contract.
525 7. That payments for the assessment contract will cause
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526 the residential property owner's annual tax bill to increase and
527 that payments will be made through an additional annual non-ad
528 valorem assessment on the property and will be paid either
529 directly to the county tax collector's office as part of the
530 total annual secured property tax bill or may be paid through
531 the residential property owner's mortgage escrow account.
532 8. That the qualifying residential property owner has
533 disclosed whether the property has received or is seeking
534 additional non-ad valorem assessments and has disclosed all
535 other assessments or special taxes that are or will be placed on
536 the property.
537 9. That the property will be subject to a lien during the
538 term of the assessment contract and that the obligations under
539 the contract may be required to be paid in full before the
540 residential property owner sells or refinances the property.
541 10. That any potential utility or insurance savings are
542 not guaranteed and will not reduce the annual non-ad valorem
543 assessment or total assessment amount.
544 11. That the local government, program administrator, or
545 qualifying improvement contractor does not provide tax advice
546 and that the residential property owner should seek professional
547 tax advice regarding questions about tax credits, tax
548 deductibility, or other tax impacts of the qualifying
549 improvement or the assessment contract.
550 (12)(a) A residential property owner may cancel a
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551 financing agreement within 5 business days after signing the
552 financing agreement without any financial penalty from the
553 program administrator for doing so.
554 (b) A contract to sell or install a qualifying improvement
555 that is related to an application for financing in a qualifying
556 improvement program for a residential property is unenforceable,
557 and a qualifying improvement contractor may not begin work under
558 such a contract, if the property owner applied for, accepted,
559 and canceled a qualifying improvement financing agreement within
560 the 5-day right-to-cancel period set forth in paragraph (a).
561 (c) If a qualifying improvement contractor has initiated
562 work on a residential property under a contract deemed
563 unenforceable under this subsection, the qualifying improvement
564 contractor:
565 1. May not receive compensation for that work under the
566 financing agreement.
567 2. Must restore the property to its original condition at
568 no cost to the property owner.
569 3. Must immediately return any money, property, and other
570 consideration given by the property owner. If the property owner
571 provided any property and the qualifying improvement contractor
572 does not or cannot return it, the qualifying improvement
573 contractor shall immediately return the fair market value of the
574 property or its value as designated in the contract, whichever
575 is greater.
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576 (d) If the qualifying improvement contractor has delivered
577 chattel or fixtures to the residential property pursuant to a
578 contract deemed unenforceable under this subsection, the
579 qualifying improvement contractor shall have 90 days from the
580 date on which the contract was executed to retrieve the chattel
581 or fixtures, provided that:
582 1. The qualifying improvement contractor has fulfilled the
583 requirements of subparagraphs (c)2. and 3.
584 2. The chattel and fixtures can be removed at the
585 qualifying improvement contractor's expense without damaging the
586 property owner's property and practically returned.
587 (e) If a qualifying improvement contractor fails to comply
588 with this subsection, the residential property owner may retain
589 any chattel or fixtures provided pursuant to a contract deemed
590 unenforceable under this subsection.
591 (f) A contract which is otherwise unenforceable under this
592 subsection remains enforceable if the residential property owner
593 waives his or her right to cancel the contract, allows the
594 qualifying improvement contractor to proceed with the
595 installation of the qualifying improvement, and cancels the
596 financing agreement.
597 (13)(10) To constitute an improvement to a building or
598 facility, a qualifying improvement must shall be affixed to a
599 building or facility that is part of the property and shall
600 constitute an improvement to the building or facility or a
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601 fixture attached to the building or facility.
602 (a) A financing an agreement between a local government
603 and a residential qualifying property owner may not cover wind-
604 resistance improvements in buildings or facilities under new
605 construction or construction for which a certificate of
606 occupancy or similar evidence of substantial completion of new
607 construction or improvement has not been issued.
608 (b) A financing agreement may be executed for qualifying
609 improvements in the construction of a commercial property before
610 a certificate of occupancy or similar evidence of substantial
611 completion of new construction or improvement is issued.
612 Progress payments, or payments made before completion, are
613 allowed for commercial properties, provided that the property
614 owner subsequently provides, upon request for a final progress
615 payment disbursement, written verification to the local
616 government confirming that the qualifying improvements are
617 completed and operating as intended. A financing agreement with
618 a commercial property owner may cover wind-resistance
619 improvements in buildings or facilities under new construction
620 or construction for which a certificate of occupancy or similar
621 evidence of substantial completion of new construction or
622 improvement has not been issued.
623 (14)(11) Any work requiring a license under any applicable
624 law to make a qualifying improvement shall be performed by a
625 contractor properly certified or registered pursuant to part I
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626 or part II of chapter 489, as applicable.
627 (15)(12)(a) Without the consent of the holders or loan
628 servicers of any mortgage encumbering or otherwise secured by
629 residential the property:,
630 1. The total amount of any non-ad valorem assessment for a
631 residential property under this section may not exceed 20
632 percent of the fair market just value of the real property as
633 determined by the county property appraiser.
634 2. The combined mortgage-related debt and total amount of
635 any non-ad valorem assessments funded under this section for
636 residential property may not exceed 97 percent of the fair
637 market value of the residential real property.
638
639 The failure of a property owner to disclose information set
640 forth in subparagraph (9)(a)12. does not invalidate a financing
641 agreement or any obligation thereunder, even if the total
642 financed amount of the qualifying improvements exceeds the
643 amount that would otherwise be authorized under this paragraph.
644 For purposes of this paragraph, fair market value shall be
645 established by a written appraisal report prepared by a
646 certified residential appraiser under chapter 475.
647 (b) Before entering into a financing agreement with the
648 owner of a commercial property, the local government or program
649 administrator, as applicable, must be in receipt of the written
650 consent of the current holders or loan servicers of any mortgage
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651 that encumbers or is otherwise secured by the property or that
652 will otherwise be secured by the property at the time the
653 financing agreement is executed by the local government or
654 program administrator. Notwithstanding paragraph (a), a non-ad
655 valorem assessment for a qualifying improvement defined in
656 subparagraph (2)(b)1. or subparagraph (2)(b)2. that is supported
657 by an energy audit is not subject to the limits in this
658 subsection if the audit demonstrates that the annual energy
659 savings from the qualified improvement equals or exceeds the
660 annual repayment amount of the non-ad valorem assessment.
661 (16)(13) At least 30 days before entering into a financing
662 agreement, the property owner must shall provide to the holders
663 or loan servicers of any existing mortgages encumbering or
664 otherwise secured by the property a written notice of the
665 owner's intent to enter into a financing agreement together with
666 the maximum principal amount to be financed and the maximum
667 annual assessment necessary to repay that amount. A verified
668 copy or other proof of such notice must shall be provided to the
669 local government or program administrator, as applicable. A
670 provision in any agreement between a mortgagee or other
671 lienholder and a property owner, or otherwise now or hereafter
672 binding upon a property owner, which allows for acceleration of
673 payment of the mortgage, note, or lien or other unilateral
674 modification solely as a result of entering into a financing
675 agreement as provided for in this section is not enforceable.
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676 This subsection does not limit the authority of the holder or
677 loan servicer to increase the required monthly escrow by an
678 amount necessary to annually pay the annual qualifying
679 improvement assessment.
680 (17)(14) At or before the time a seller purchaser executes
681 a contract for the sale and purchase of any property for which a
682 non-ad valorem assessment has been levied under this section and
683 has an unpaid balance due, the seller must shall give the
684 prospective purchaser a written disclosure statement in either
685 of the following forms form, which must shall be set forth in
686 the contract or in a separate writing.
687 (a) For a residential property:
688
689 QUALIFYING IMPROVEMENTS FOR ENERGY EFFICIENCY,
690 RENEWABLE ENERGY, ADVANCED TECHNOLOGIES FOR WASTEWATER
691 REMOVAL, OR WIND RESISTANCE.—The property being
692 purchased is located within the jurisdiction of a
693 local government that has placed an assessment on the
694 property pursuant to s. 163.08, Florida Statutes. The
695 assessment is for a qualifying improvement to the
696 property relating to energy efficiency, renewable
697 energy, advanced technologies for wastewater removal,
698 or wind resistance, and is not based on the value of
699 property. You are encouraged to contact the county
700 property appraiser's office to learn more about this
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701 and other assessments that may be provided by law.
702
703 (b) For a commercial property:
704
705 QUALIFYING IMPROVEMENTS FOR ENERGY EFFICIENCY,
706 RENEWABLE ENERGY, OR RESILIENCY.—The property being
707 purchased is located within the jurisdiction of a
708 local government that has placed an assessment on the
709 property pursuant to s. 163.08, Florida Statutes. The
710 assessment is for a qualifying improvement to the
711 property relating to energy efficiency, renewable
712 energy, or resiliency, and is not based on the value
713 of property. You are encouraged to contact the county
714 property appraiser's office to learn more about this
715 and other assessments that may be provided by law.
716
717 (18) A financing agreement authorized under this section
718 on residential property may not include any of the following
719 financing terms:
720 (a) A negative amortization schedule. Capitalized interest
721 included in the original balance of the assessment financing
722 agreement does not constitute negative amortization.
723 (b) A balloon payment.
724 (c) Prepayment fees, other than nominal administrative
725 costs.
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726 (19) For residential property, a local government or
727 program administrator, as applicable:
728 (a) May not enroll a qualifying improvement contractor who
729 contracts with residential property owners to install qualifying
730 improvements unless:
731 1. The local government or program administrator, as
732 applicable, determines that the qualifying improvement
733 contractor maintains in good standing an appropriate license
734 from the state, if applicable, as well as any other permits,
735 licenses, or registrations required for engaging in its business
736 in the jurisdiction in which it operates and maintains all
737 state-required bond and insurance coverage.
738 2. The local government or program administrator, as
739 applicable, obtains the qualifying improvement contractor's
740 written agreement that the qualifying improvement contractor
741 will comply with all applicable laws, including applicable
742 advertising and marketing laws and regulations and the
743 requirements of this section.
744 (b) Must maintain a process to enroll new qualifying
745 improvement contractors that includes reasonable review of the
746 following for each contractor:
747 1. Relevant work or project history.
748 2. Financial and reputational background checks, including
749 a criminal background check.
750 3. The contractor's status on the Better Business Bureau
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751 platform or other online platforms that track contractor
752 reviews.
753 (c) Must establish and maintain a process for monitoring
754 qualifying improvement contractors with regard to performance
755 and compliance with program policies and must implement policies
756 for suspending, reinstating, and terminating qualifying
757 improvement contractors based on violations of program policies
758 or unscrupulous behavior.
759
760 A program administrator, either directly or through an
761 affiliate, may not be enrolled as a qualifying improvement
762 contractor.
763 (20)(a) Before disbursing funds to a qualifying
764 improvement contractor for a qualifying improvement on
765 residential property, the local government or program
766 administrator, as applicable, must confirm that the applicable
767 work or service has been completed and that the final permit for
768 the qualifying improvement has been closed with all permit
769 requirements satisfied.
770 (b) A local government or program administrator, as
771 applicable, may not disclose the maximum financing amount for
772 which a residential property owner is eligible to a qualifying
773 improvement contractor or to a third party engaged in soliciting
774 assessment contracts financed pursuant to this section.
775 (21) When communicating with residential property owners,
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776 a local government, program administrator, or qualifying
777 improvement contractor, or a third party engaged in marketing on
778 behalf of these entities, must comply with the following
779 marketing and communications guidelines and may not:
780 (a) Suggest or imply:
781 1. That a non-ad valorem assessment authorized under this
782 section is a government assistance program;
783 2. That qualifying improvements are free or provided at no
784 cost or that the financing related to a non-ad valorem
785 assessment authorized under this section is free or provided at
786 no cost; or
787 3. That the financing of a qualifying improvement using a
788 qualifying improvement program authorized pursuant to this
789 section does not require the property owner to repay the
790 financial obligation.
791 (b) Make any representation as to the tax deductibility of
792 a non-ad valorem assessment on residential real property. A
793 local government, program administrator, or qualifying
794 improvement contractor, or a third party engaged in marketing on
795 behalf of these entities, may encourage a property owner to seek
796 the advice of a tax professional regarding tax matters related
797 to assessments.
798 (22)(a) A qualifying improvement contractor or third party
799 engaged in marketing a qualifying improvement program may not
800 advertise the availability of financing agreements or solicit
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801 property owners on behalf of the local government or program
802 administrator unless:
803 1. The qualifying improvement contractor or third party
804 maintains the appropriate registration or certification from the
805 Construction Industry Licensing Board or any other permit,
806 license, or registration required to conduct business in the
807 jurisdiction in which it operates and provides proof of having
808 the required bond and insurance coverage amounts.
809 2. The local government or program administrator, as
810 applicable, obtains the qualifying improvement contractor's or
811 third party's written agreement that the qualifying improvement
812 contractor or third party will comply with applicable laws and
813 rules and qualifying improvement program policies and
814 procedures, including those on advertising and marketing.
815 (b) A local government or program administrator may not
816 provide any payment, fee, or kickback to a qualifying
817 improvement contractor for referring financing business relating
818 to any financing agreement on residential property. However, a
819 program administrator may provide information or services to a
820 qualifying improvement contractor to facilitate the installation
821 of a qualifying improvement for a property owner.
822 (c) A local government or program administrator may not
823 reimburse a qualifying improvement contractor or third party for
824 its expenses in advertising and marketing campaigns and
825 materials. A local government or program administrator, as
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826 applicable, and a qualifying improvement contractor may share
827 expenses in connection with joint advertising and marketing
828 campaigns and materials if the expenses are shared on a
829 commercially reasonable basis.
830 (d) A local government or program administrator may not
831 provide to a qualifying improvement contractor any information
832 that discloses the amount of funds for which a property owner is
833 eligible for qualifying improvements or the amount of equity in
834 a property.
835 (e) For residential properties, a qualifying improvement
836 contractor may not provide a different price for a qualifying
837 improvement financed under this section than the qualifying
838 improvement contractor would otherwise reasonably provide if the
839 qualifying improvement was not being financed through a
840 financing agreement under this section.
841 (f) A program administrator may not provide any direct
842 cash payment or other thing of material value to a propert y
843 owner explicitly conditioned upon the property owner entering
844 into a financing agreement. However, a program administrator may
845 offer programs or promotions that provide reduced fees or
846 interest rates if the reduced fees or interest rates are
847 reflected in the financing agreements and are not provided to
848 the property owners as cash consideration.
849 (23) Each local government and program administrator must
850 develop and implement policies and procedures for responding to,
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851 tracking, and resolving questions and complaints about its
852 qualifying improvement program.
853 (24) Each local government that has authorized a
854 qualifying improvement program shall post on its website an
855 annual report for the period ending December 31 each year
856 containing the following information:
857 (a) The number of qualifying improvements funded.
858 (b) The aggregate, average, and median dollar amounts of
859 annual non-ad valorem assessments and the total number of non -ad
860 valorem assessments that funded qualifying improvements.
861 (c) The percentage, number, and dollar value of non-ad
862 valorem assessments that funded qualifying improvements,
863 aggregated by the category types consisting of energy
864 efficiency, renewable energy, wind resistance, residential
865 property wastewater, commercial property resiliency, and other
866 commercial property qualifying improvements.
867 (d) The number of defaulted non-ad valorem assessments,
868 including the total number and defaulted amount, the number and
869 dates of missed payments, the total number of parcels defaulted
870 and the years in default, and the percentage of defaults by
871 total assessments.
872 (e) A summary of all reported complaints received by the
873 local government and its program administrators related to
874 authorized qualifying improvements programs, including the
875 resolution of each complaint.
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876 (f) Estimated number of jobs created.
877 (g) The number and percentage of homeowners 60 years of
878 age or older participating in a qualifying improvement program.
879
880 This report shall be posted no later than April 1 of the year
881 following the calendar year covered by the report.
882 (25)(15) A provision in any agreement between a local
883 government and a public or private power or energy provider or
884 other utility provider is not enforceable to limit or prohibit
885 any local government from exercising its authority under this
886 section.
887 (26)(16) This section is additional and supplemental to
888 county and municipal home rule authority and not in derogation
889 of such authority or a limitation upon such authority.
890 (27) This section is prospective only and does not affect
891 or amend any existing non-ad valorem assessment or any existing
892 interlocal agreement between local governments.
893 Section 2. This act shall take effect July 1, 2023.
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PCS for HB 917
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: PCS for HB 917 Wage and Employment Benefits
SPONSOR(S): Commerce Committee
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Commerce Committee Thompson Hamon
SUMMARY ANALYSIS
The federal Fair Labor Standards Act (FLSA) provides workers with minimum wage, overtime pay, and child
labor protections. The FLSA authorizes the U.S. Secretary of Labor to administer the FLSA provisions,
including workplace inspections, investigations, and enforcement of violations. The current federal minimum
wage rate under the FLSA is $7.25 an hour. Most wage and salary workers are covered by the FLSA. The
FLSA exempts certain employers and employees from the federal minimum wage and overtime requirements,
including minor league baseball players.
Pursuant to the State Constitution, on September 30, 2021, Florida’s minimum wage increased to $10 per
hour. Each year, thereafter, Florida’s minimum wage will increase by $1 until the minimum wage reaches $15
per hour on September 30, 2026. Beginning in 2027, the minimum wage will be adjusted annually for inflation,
as it had from 2005-2021.
The Florida Minimum Wage Act (Act) was enacted in 2005 to implement the minimum wage provisions in the
State Constitution. The Act designates the Department of Economic Opportunity (DEO) as the state agency
that implements the minimum wage requirements and establishes procedures with respect to enforcement of
violations. The Act specifies that:
Only those individuals entitled to receive the federal minimum wage under the FSLA, and its
implementing regulations, are eligible to receive the state minimum wage.
Federal minimum wage exemptions in the FLSA are considered incorporated into the Act.
Florida’s wage and employment benefits law preempts the establishment of a minimum wage to the state.
Thus, local governments cannot establish a minimum wage for employers in their jurisdiction. Local
governments are also prohibited from requiring an employer to provide employment benefits not required by
state or federal law. However, local governments have limited authority to establish a minimum wage and to
require specific employment benefits for their own employees and those of their vendors or contractors.
The bill amends the Act to clarify that the state minimum wage will track the federal minimum wage, as set
forth and “as amended,” in the FLSA. This aligns Florida’s minimum wage exemptions with recent
amendments to federal exemptions.
The bill amends Florida’s wage and employment benefits law to:
Prohibit local governments from seeking to control or affect the wages or employment benefits, or
awarding preferences on the basis of wages or employment benefits, provided by their vendors,
contractors, service providers, or other parties doing business with the local government through
purchasing and contracting procedures.
Remove the ability of local governments to establish a minimum wage for the employees of an
employer contracting to provide goods or services for the local government, or for the employees of a
subcontractor of such an employer, under the terms of a contract with the local government.
The bill does not appear to have a fiscal impact on state or local government.
The bill is effective upon becoming a law.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: pcs0917.COM
DATE: 4/23/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Fair Labor Standards Act
The federal Fair Labor Standards Act (FLSA), enacted in 1938, provides covered workers with
minimum wage, overtime pay, and child labor protections. 1 In 1938, the FLSA established a minimum
wage of $.25 an hour. The current federal minimum wage rate is $7.25 an hour, which went into effect
July 24, 2009.2 The FLSA applies to employment within any state in the U.S., the District of Columbia
or any territory or possession of the U.S.3
The FLSA covers most private and public sector employees. However, certain employers and
employees are exempt from coverage, including: individuals with disabilities, youth workers, tipped
workers and executive, administrative and professional workers. The FLSA covers businesses if the
business has annual sales of at least $500,000.4 It also covers certain individual employees if such
employee is engaged in interstate commerce.
Regardless of the dollar amount of revenues of a business, the FLSA applies to:5
Governments: Federal, state, or local government agencies.
Hospitals: Hospitals, or institutions primarily engaged in the care of the sick, the aged, or the
mentally ill or disabled who live on the premises. (It does not matter if the hospital or institution
is public or private or is operated for profit or not-for-profit.)
Schools: Pre-schools, elementary or secondary schools or institutions of higher learning (e.g.,
college), or a school for mentally or physically handicapped or gifted children. (It does not
matter if the school or institution is public or private or operated for profit or not-for-profit.)
The FLSA includes several exemptions from the federal minimum wage provisions, including:6
Executive, administrative and professional employees;
o Teachers and academic administrative personnel in elementary and secondary schools,
outside sales employees, and employees in certain computer-related occupations.
Employees in certain seasonal amusement or recreational establishments, employees in certain
small newspapers, seamen employed on foreign vessels, employees engaged in fishing
operations, and employees engaged in newspaper delivery;
Farm workers employed by certain employers;
Causal babysitters and persons employed as companions for the elderly or infirm;
Border patrol agents 7; and
1 29 U.S.C. § 201-219 and 29 C.F.R. ch. V.
2 Congressional Research Service, CRS Report R42713, The Fair Labor Standards Act (FLSA): An Overview,
https://crsreports.congress.gov/product/pdf/R/R42713#:~:text=The%20Fair%20Labor%20Standards%20Act%20(FLSA)%20provides
%20workers%20with%20min imu m,employees%20are%20exempt%20fro m%20coverage, (last visited Mar. 14, 2023). (The main
FLSA provisions and accompanying Department of Labor (DOL) regulations constitute what is commonly known as federal wage and
hour laws and federal child labor law.).
3 Congressional Research Service, CRS Report R42713, The Fair Labor Standards Act (FLSA): An Overview,
https://crsreports.congress.gov/product/pdf/R/R42713#:~:text=The%20Fair%20Labor%20Standards%20Act%20(FLSA)%20provides
%20workers%20with%20min imu m,employees%20are%20exempt%20fro m%20coverage, (last visited Mar. 14, 2023). (The FLSA
does not apply to employees working in a foreign country even if the employer has its main office in the U.S.).
4 The size of an enterprise is measured by its “annual sales or business done.” Annual sales or business done includ es all business
activities that can be measured in dollars. Thus, retailers are covered by the FLSA if their annual sales are at least $500,000. Owners
of rental properties are covered if they collect at least $500,000 annually in rent. 29 C.F.R.§§779.258-779.259.
5 U.S. Department of Labor, Fair Labor Standards Act Advisor, https://webapps.dol.gov/elaws/whd/flsa/scope/screen10.asp, (last
visited Mar. 15, 2023).
6 29 U.S.C. § 213. (It also includes separate exemptions from overtime pay.)
7 Border Patrol Agent Pay Reform Act of 2014, S.1691, 113th Cong, (2014).
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Baseball players who are compensated pursuant to a contract that provides for a weekly salary
for services performed during the league’s championship season at a rate that is not less than a
weekly salary equal to the minimum wage.
The FLSA was amended in 2014, related to border patrol agents, and again in 2018, to exempt minor
league baseball players who are paid at least $290 per week during the 2018 championship season
from the federal minimum wage rate and overtime pay.8 These two amendments were the only
amendments made to the minimum wage exemptions provisions of the FLSA since Florida passed its
minimum wage law in 2005.9
The FLSA provides that if states enact worker protections, including minimum wage rates, that are
more protective of employees than what is provided by the FLSA, the state law applies. 10
Consequently, no state law may weaken the worker protections in the FLSA. However, state laws that
impose greater worker protections will supersede those in the FLSA.11
Thirty states plus Washington DC, Guam, Puerto Rico, and the Virgin Islands provide a minimum wage
greater than the federal minimum wage. Thirteen states provide a minimum wage that is equal to the
federal minimum wage. Five states have not adopted a minimum wage and two states have a minimum
wage that is below the federal minimum wage.12 For those seven states, the federal minimum wage
applies, but only to those workers covered by the FLSA.
Article X, Section 24 of the Florida Constitution
On November 2, 2004, Floridians voted to amend the Florida Constitution by adding a minimum wage
provision (Section 24) that established the state minimum wage.13 Prior to this date Florida did not have
a law on minimum wage so the FLSA applied for covered workers. Section 24 provides the amount of
the minimum wage and the procedure for calculating increases in the minimum wage. 14
Florida voters again on November 3, 2020, voted to approve a constitutional amendment related to the
state’s minimum wage, Amendment 2, to gradually increase the state’s minimum wage to $15 an hour
by the year 2026.15 Pursuant to the passage of Amendment 2, on September 30, 2021, Florida’s
minimum wage increased to $10 per hour. Each year, thereafter, Florida’s minimum wage will increase
8 See Levi Weaver, On Minor-League Pay, MLB’s Stance Doesn’t Line Up with the Facts, ATHLETIC (Apr. 4, 2018),
https://www.theathletic.com/293189/%202018/04/04/on-minor-league-pay-mlbs-stance-doesnt-line-up-with-the-facts// (last visited
March 1, 2023). (When recounting salary scale per level of minor league baseball, the article notes “federally -recognized poverty line
is $12,140 per year for single-individual households.” According to the article, a not-insignificant percentage of minor league players
are able to subsidize their relatively meager monthly salaries by drawing upon the signing bonuses they received from their MLB
clubs when first entering the professional ranks. These bonuses can range anywhere from $10,000 to several million dollars. “ The top
64 picks [in the MLB draft] last year all received a bonus of over $1,000,000 before taxes, but roughly 40% of players signe d for one-
time bonuses of $10,000 or less.”
9 S. 448.110, F.S., expressly references ss. 213 and 214 of the FLSA, which address minimum wage exemptions and employment
under special certificates, respectively. However, s. 214 has not been amended since 1989. (See Pub. L. 101–157, § 4(d), Nov. 17,
1989, 103 Stat. 941.)
10 29 U.S.C. §218.
11 Congressional Research Service, CRS Report R42713, The Fair Labor Standards Act (FLSA): An Overview, Updated March 2,
2023,
https://crsreports.congress.gov/product/pdf/R/R42713#:~:text=The%20Fair%20Labor%20Standards%20Act%20(FLSA)%20provides
%20workers%20with%20min imu m,employees%20are%20exempt%20fro m%20coverage, (last visited Mar. 14, 2023).
12 U.S. Department of Labor, Consolidated Minimum Wage Table, https://www.dol.gov/agencies/whd/mw-consolidated (last visited
Mar. 15, 2023).
13 Art. X, s. 24., Fla. Const.
14 Art. X, s. 24 (c), Fla. Const.
15 U.S. Department of State, Notice of Increase to State of Florida’s Minimum Wage, https://www.state.gov/wp-
content/uploads/2021/01/2021-01-29-Notice-FL-M inimu m-Wage-Increase.pdf (last visited Mar. 3, 2023).
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by $1 until the minimum wage reaches $15 per hour on September 30, 2026. 16 Beginning in 2027, the
minimum wage will be adjusted annually for inflation, as it had been done from 2004 - 2021.
Related to minimum wage, the Florida Constitution states, “All working Floridians are entitled to be paid
a minimum wage sufficient to provide a decent and healthy life, that protects their employers from
unfair low wage competition, and that does not force them to rely on taxpayer-funded public services.”17
The Florida Constitution references the FLSA and specifically ties the meaning 18 of certain terms,
“Employer,” “Employee” and “Wage,” to have the meanings established under the FLSA and its
implementing regulations.19 It also indicates that that case law, administrative interpretations, and other
guiding standards developed under the federal FLSA must guide the construction of Florida’s
Constitution related to Section 24 and any implementing statutes or regulations. 20
Florida Minimum Wage Act
The Florida Minimum Wage Act (Act) was enacted in 2005 to implement the minimum wage provisions
in the State Constitution.21 The Act designates the Department of Economic Opportunity (DEO) as the
state agency that implements the minimum wage requirements, establishes procedures with respect to
civil actions alleging violations, and provides that it is the exclusive remedy under state law for
violations of Section 24.22
The Act provides that effective May 2, 2005, employers are required to pay employees a minimum
wage at an hourly rate of $6.15 for all hours worked in Florida. Only those individuals entitled to receive
the federal minimum wage under the FSLA and its implementing regulations are eligible to receive the
state minimum wage pursuant to the State Constitution and this statute. The provisions of ss. 213 and
214 of the federal Fair Labor Standards Act, as interpreted by applicable federal regulations and
implemented by the Secretary of Labor, are incorporated by reference.23
The Act requires DEO to calculate an adjusted state minimum wage rate and requires the Department
of Revenue (DOR) and DEO to annually publish the amount of the adjusted state minimum wage and
the effective date on their websites. The Act authorizes persons to file a complaint or inform any person
of his or her potential rights pursuant to Section 24 regarding unpaid wages.24 The Act also authorizes
the Attorney General (AG) to bring a civil action to enforce these provisions. The AG may seek
injunctive relief, and for willful violations, may seek to impose a fine of $1,000 per violation, payable to
the state.25
As it relates to the federal minimum wage and the FLSA, the Act specifies that:26
Only those individuals entitled to receive the federal minimum wage under the FSLA, and its
implementing regulations, are eligible to receive the state minimum wage; and
Provisions related to federal minimum wage exemptions in the FLSA are considered
incorporated in the Act.
16 Department of Economic Opportunity, Florida’s Minimum Wage, https://floridajobs.org/docs/default-source/business-growth-and-
partnerships/for-employers/posters-and-required-notices/2022-minimum-wage/2022-florida-minimu m-wage-
announcement.pdf?sfvrsn=961754b0_2 (last visited Mar. 3, 2023).
17 Art. X, s. 24 (a), Fla. Const.
18 In re Advisory Opinion to the Atty. Gen. re Fla. Minimum Wage Amend., 880 So. 2d 636, 641–42 (Fla. 2004). (“The proposed
amendment does not state that it is adopting the FLSA's definition of the term “employee,” but provides that it is adopting the meaning
of the term “employee,” which is a much broader concept.”)
19 Art. X, s. 24(b), Fla. Const.
20 Art. X, s. 24(f), Fla. Const.
21 Ch. 2005-353, Laws of Fla., codified in s. 448.110, F.S.
22 S. 448.110(10), F.S.
23 S. 448.110(3), F.S.
24 S. 448.110(6), F.S.
25 S. 448.110(7), F.S.
26 S. 448.110(3), F.S.
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Professional Baseball in Florida
Currently, there are 12 minor league baseball teams that are affiliated with Major League Baseball
(MLB) in Florida. There are approximately 500 players currently rostered, employed, and being paid by
the 12 Florida Minor League Baseball teams.27 Additionally, 15 MLB teams conduct major and minor
league spring training in Florida at thirteen different spring training facilities, a decrease from 18 teams
in 2008 and 16 teams in 2009. The Cleveland Indians (previously playing at Winter Haven), Los
Angeles Dodgers (Vero Beach) and Cincinnati Reds (Sarasota) have all moved to Arizona in recent
years.28 Two teams that play in the MLB, the Miami Marlins and the Tampa Bay Rays, are permanently
located in Florida.
The main baseball season runs from early April to early October with teams typically playing six days a
week. There are also play-offs which take place at the end of the normal season for the top-ranking
teams. The main season is preceded by spring training which typically starts around the middle of
February. Many of Florida’s baseball parks host other MLB teams every Spring as part of the Grapefruit
League Spring Training season. According to a 2018 economic impact study, the 2018 Florida
Grapefruit League generated an economic impact of approximately $687 million, $348 million in direct
spending, 7,152 jobs, and $253 million in earned wages, for the State of Florida.29
According to the industry, baseball players hours vary widely based on a number of factors, which can
vary. Players often perform extra activities, work longer hours than regularly scheduled, and perform
different activities than their teammates.30 As a result, the MLB has argued that the nature of the sport
stymies conventional attempts at categorizing “work hours.”31
Recently, MLB agreed to pay $185 million to current and former minor league baseball players to settle
a federal class action lawsuit in California alleging violations of minimum wage laws.32 In the lawsuit,
the players sued MLB and the MLB Clubs claiming they failed to pay the players minimum wage and
overtime pay in violation of the FLSA and state wage-and-hour laws in California, Arizona, and Florida.
MLB also agreed to rescind any prohibitions against teams paying wages to minor league players
outside of the season. The MLB also committed to issuing a memorandum advising their clubs to
compensate minor leaguers in compliance with wage-and-hour laws in effect in Arizona and Florida
during spring training, extended spring training, instructional leagues, and the championship season in
those states, including any minimum wage laws that apply.33
The Court held the final approval hearing related to the settlement on February 17, 2023. A late filed
motion to object to the settlement was filed and the Court has taken the motion under consideration. A
ruling is not expected until late March 2023.34
Local Wage Ordinances
27 See Michael Avallone, Then and now: Florida State League, MiLB.com, https://www.milb.com/news/florida-state-league-overview
(last visited Mar. 3, 2023).
28 FloridaReview.co.uk, FLORIDA SPRING TRAINING 2023, https://floridareview.co.uk/florida-events/florida-spring-training (last
visited Mar. 15, 2023).
29 Florida Sports Foundation, 2018 MLB SPRING TRAINING ECONOMIC IMPACT STUDY, http://playinflorida.com/wp-
content/uploads/2018/08/GFL-IS-Page-by-Page-Booklet-spread.pdf (last visited Mar. 15, 2023).
30 Bleacher Report, Pregame Routines: A Typical Day in the Life of a Professional Baseball Player,
https://bleacherreport.com/articles/1061824-pregame -routines-a-typical-day-in-the-life-of-a-professional-baseball-player (last visited
Mar. 15, 2023).
31 Pew Trusts, Baseball Players Press Lawmakers for Minor League Labor Standards, https://www.pewtrusts.org/en/research-and-
analysis/blogs/stateline/2022/03/30/baseball-players-press-lawmakers-for-minor-league-labor-standards (last visited Mar. 19, 2023).
32 Aaron Senne et al vs. Office of the Commissioner of Baseball et al ., Civil Case No. 14-cv-00608.
33 NBC News, MLB settles minor league players' wage-and-hour class action suit for $185 million,
https://www.nbcnews.com/news/us -news/mlb-settles-minor-league-players-wage-hour-class-action-suit-185-milli-rcna38554 (last
visited Mar. 15, 2023).
34 JND Legal Administration, WELCOME TO THE SENNE V. OFFICE OF THE COMMISSIONER OF BASEBALL SETTLEMENT
WEBSITE, https://www.baseballplayerwagecase.com/ (last visited Mar. 15, 2023).
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The federal Fair Labor Standards Act does not preempt state laws or municipal ordinances from
establishing a higher minimum wage. See s. 18(a) of the federal Fair Labor Standards Act of 1938, as
amended, 29 U.S.C. s. 218:
No provision of [the Fair Labor Standards Act] or of any order thereunder shall
excuse noncompliance with any Federal or State law or municipal ordinance
establishing a minimum wage higher than the minimum wage established under
[the federal act].
In Florida, the State Constitution authorizes counties to enact ordinances that are not inconsistent with
state law.35 The State Constitution also grants municipalities the power to enact ordinances on any
subject that state law may address, except:36
The subjects of annexation, merger, and exercise of extraterritorial power;
Any subject expressly prohibited by the State Constitution;
Any subject expressly preempted to state or county government by the State Constitution or by
law; or
Any subject preempted to a county under a county charter.
In 2003, the Legislature preempted the establishment of minimum wages to the state. 37 However, a
political subdivision (local government)38 retains the authority to establish a minimum wage other than a
state or federal minimum wage or to provide employment benefits not otherwise required under state or
federal law for:39
Its employees;
The employees of an employer contracting to provide goods or services for the local
government, or for the employees of a subcontractor of such an employer, under the terms of a
contract with the local government; or
The employees of an employer receiving a direct tax abatement or subsidy from the local
governments, as a condition of the direct tax abatement or subsidy.
The law also provides an exception for domestic violence or sexual abuse ordinances, orders, rules, or
policies adopted by a local government.40
The law contains an exception for situations where compliance with the law would prevent a local
government from receiving federal funds. This allows compliance with the Davis-Bacon and related
acts,41 which direct the federal Department of Labor to determine fair wages for contractors and
subcontractors working on public buildings and public works. Florida law only allows non-compliance
with regard to local minimum wage alterations to the extent necessary to allow receipt of federal
funds.42
Additionally, local governments are prohibited from requiring an employer to provide employment
benefits 43 not required by state or federal law.44
35 Section 1(f) and (g), Art. VIII of the State Constitution; see also s. 125.01, F.S.
36 Section 2(b), Art. VIII of the State Constitution.
37 S. 218.077(2), F.S.
38 “Political subdivision” is defined to mean a county, municipality, department, commission, district, board, or other public b ody,
whether corporate or otherwise, created by or under state law. S. 218.077(1)(f), F.S.
39 S. 218.077(3)(a), F.S.
40 S. 218.077(3)(b), F.S.
41 See, e.g., 40 U.S.C. 3141 et seq.
42 S. 218.077(4), F.S.
43 “Employment benefits” is defined to mean anything of value that an employee may receive from an employer in addition to wages
and salary. The term includes, but is not limited to, health benefits; disability benefits; death benefits; group accidental death and
dismemberment benefits; paid or unpaid days off for holidays, sick leave, vacation, and personal necessity; retirement benefits; and
profit-sharing benefits. S. 218.077(1)(d), F.S.
44 S. 218.077(2), F.S. Federally authorized and recognized tribal governments, however, are not prohibited from requiring employ ment
benefits for a person employed within a territory over which the tribe has jurisdiction. S. 218.077(5), F.S.
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DATE: 4/23/2023
Recent Court Ruling
In 2016, the city of Miami Beach enacted a local ordinance establishing a minimum hourly wage
significantly exceeding the current Florida minimum wage. The ordinance applied to all employers
operating with the city. The ordinance, which was scheduled to take effect on January 1, 2018,
established both a local minimum wage of $10.31 an hour and annual increases to $13.31 an hour
effective January 2021. Subsequently, the ordinance was challenged on the grounds that it was
preempted by Florida’s wage and employment benefits law that preempts the establishment of
minimum wages to the state, and Florida’s Third District Court of Appeals struck down the ordinance.
The court held that the Florida Constitution authorizes the state legislature to preempt municipal
powers by statute. The court also rejected the city’s principal argument that Article X, Section 24 of the
Florida Constitution, raising the state minimum wage, made the statute unconstitutional. In 2018, the
Florida Supreme Court agreed to take up the case.45 However, in 2019, the Florida Supreme Court
issued an order that discharged jurisdiction over the case. As a result, the Third District’s decision
invalidating Miami Beach’s local wage ordinance appears to currently stand.46
Effect of Proposed Changes
The bill amends the Act to incorporate current and future amendments made to the FLSA into the Act,
aligning Florida’s minimum wage exemptions with federal exemptions.
Specifically, the bill:
Deletes an unnecessary date;
Adds “as amended” to the reference to the FLSA; and
Provides that this specific amendment to the Act is intended to “clarify existing law.”
The bill amends Florida’s wage and employment benefits law to address local wage and employment
benefits mandates. Specifically, the bill prohibits political subdivisions or local governments from
seeking to control or affect the wages or employment benefits provided by their vendors, contractors,
service providers, or other parties doing business with the political subdivision:
Through their purchasing or contracting procedures, or
Through the use of evaluation factors, qualification of bidders, or otherwise from awarding
preferences on the basis of wages or employment benefits provided by their vendors,
contractors, service providers, or other parties doing business with the political subdivision.
The bill removes the exception allowing political subdivisions to establish a minimum wage or
employment benefits not otherwise required under state or federal law for the employees of an
employer contracting to provide goods or services for the political subdivision, or for the employees of a
subcontractor of such an employer, under the terms of a contract with the political subdivision.
B. SECTION DIRECTORY:
Section 1: Amends s. 448.110, F.S., relating to state minimum wage; annual wage adjustment;
enforcement.
Section 2: Provides applicability.
Section 3: Provides an effective date of upon becoming law.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
45 City of Miami Beach v. Florida Retail Federation, Inc., 233 So.3d 1236 at 1238 (Fla. 3d DCA 2017) (declined for review February
5, 2019).
46 JDSUPRA, Can Cities Set a Local Minimum Wage? Florida Supreme Court Says No (Feb. 14, 2019),
https://www.jdsupra.com/legalnews/can-cities-set-a-local-minimu m-wage-67192/ (last visited Apr. 21, 2023).
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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 effect on salaries paid to minor league baseball players.
The bill will no longer allow political subdivisions or local governments to establish a minimum wage
greater than a state or federal minimum wage for their vendors or contractors nor would they be
allowed to require employers that have contracts or subcontracts with a political subdivision to provide
employment benefits not otherwise required under state or federal law. This change may lower
operating costs for these private employers.
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
None.
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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
PCS for HB 917 2023
1 A bill to be entitled
2 An act relating to wage and employment benefits;
3 amending s. 218.077, F.S.; prohibiting political
4 subdivisions from controlling, affecting, or awarding
5 preferences, related to wages or employment benefits
6 of entities contracting with the political
7 subdivision; amending s. 448.110, F.S.; providing that
8 the state minimum wage only applies to individuals who
9 are entitled to receive the federal minimum wage under
10 the federal Fair Labor Standards Act, as amended;
11 providing applicability; providing an effective date.
12
13 Be It Enacted by the Legislature of the State of Florida:
14
15 Section 1. Subsection (2) and paragraph (a) of subsection
16 (3) of section 218.077, Florida Statutes, are amended to read:
17 218.077 Wage and employment benefits requirements by
18 political subdivisions; restrictions.—
19 (2) Except as otherwise provided in subsection (3), a
20 political subdivision may not establish, mandate, maintain, or
21 otherwise require an employer to pay a minimum wage, other than
22 a state or federal minimum wage, to apply a state or federal
23 minimum wage to wages exempt from a state or federal minimum
24 wage, or to provide employment benefits not otherwise required
25 by state or federal law. No political subdivision may through
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PCS for HB 917
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
PCS for HB 917 2023
26 its purchasing or contracting procedures seek to control or
27 affect the wages or employment benefits provided by its vendors,
28 contractors, service providers, or other parties doing business
29 with the political subdivision. A political subdivision shall
30 not through the use of evaluation factors, qualification of
31 bidders, or otherwise award preferences on the basis of wages or
32 employment benefits provided by its vendors, contractors,
33 service providers, or other parties doing business with the
34 political subdivision.
35 (3) This section does not:
36 (a) Limit the authority of a political subdivision to
37 establish a minimum wage other than a state or federal minimum
38 wage or to provide employment benefits not otherwise required
39 under state or federal law:
40 1. For the employees of the political subdivision; or
41 2. For the employees of an employer contracting to provide
42 goods or services for the political subdivision, or for the
43 employees of a subcontractor of such an employer, under the
44 terms of a contract with the political subdivision; or
45 3. For the employees of an employer receiving a direct tax
46 abatement or subsidy from the political subdivision, as a
47 condition of the direct tax abatement or subsidy.
48 Section 2. Subsection (3) of section 448.110, Florida
49 Statutes, is amended to read:
50 448.110 State minimum wage; annual wage adjustment;
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PCS for HB 917
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
PCS for HB 917 2023
51 enforcement.—
52 (3) Effective May 2, 2005, Employers shall pay employees a
53 minimum wage at an hourly rate of $6.15 for all hours worked in
54 Florida. Only those individuals entitled to receive the federal
55 minimum wage under the federal Fair Labor Standards Act , as
56 amended, and its implementing regulations shall be eligible to
57 receive the state minimum wage pursuant to s. 24, Art. X of the
58 State Constitution and this section. The provisions of ss. 213
59 and 214 of the federal Fair Labor Standards Act, as interpreted
60 by applicable federal regulations and implemented by the
61 Secretary of Labor, are incorporated herein.
62 Section 3. The amendments to s. 448.110, Florida Statutes,
63 in this act are intended to clarify existing law.
64 Section 4. This act shall take effect upon becoming a law.
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PCS for HB 917
PCS for CS/HB 1013
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: PCS for CS/HB 1013 Protection from Discrimination Based on Health Care Choices
SPONSOR(S): Commerce Committee
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Commerce Committee Lloyd Hamon
SUMMARY ANALYSIS
The COVID-19 pandemic caused millions of deaths around the world, including over 1.1 million in the U.S.
Currently, hospitalizations and deaths from COVID-19 remain relatively low nationwide. In response, the federal
government issued Emergency Use Authorizations (EUAs) and full approvals, for vaccines and treatments. The
federal government also required vaccination and other preventive measures in certain settings. The pandemic led
to a worldwide debate on the role of government and private employers in su ch public health emergencies.
Current Florida law prohibits: businesses and governments from requiring employees to be vaccinated; businesses,
governments and educational institutions from requiring proof of vaccination or post -infection recovery; and schools
from requiring students to wear masks or be vaccinated. Enforcement is by the Department of Legal Affairs (DLA)
within the Office of the Attorney General, by the Department of Health (DOH), or by private court action, depending
on the provision.
The BILL amends current prohibitions and creates additional prohibitions. The bill:
Prohibits businesses, governmental entities, and educational institutions from requiring a person to take a
COVID-19 test, wear a facial covering to gain access to or use their services or document vaccination status
for any COVID-19 vaccine, mRNA vaccine, or EUA vaccine.
Prohibits businesses, governmental entities, and educational institutions from discriminating against a
person for refusing to comply with a requirement prohibited by the bill, or current law, and specifically
prohibits employment discrimination by businesses and governmental entities.
Requires businesses, governmental entities, and educational institutions to provide exemptions and
reasonable accommodations related to other (non-COVID-19, non-EUA and non-mRNA) vaccines.
Prohibits business, governmental entities, and educational institutions from using polices of international
public health organizations, unless expressly authorized by state government.
Prohibits the use of facial coverings in health care settings, except in compliance with emergency rules
required by the bill to be adopted by DOH and the Agency for Health Care Administration (AHCA) .
The bill requires DLA to enforce the provisions against businesses and governmental entities, and moves
enforcement of the current prohibitions against documentation requirements related to vaccination status or post-
infection recovery from DOH to DLA. Similarly, the bill requires DOH to enforce the provisions against educational
institutions, and repeals the current authority for parents and adult students to pursue declaratory and injunctive
relief to enforce the current prohibitions against requiring documentation of COVID-19 vaccination or post-infection
recovery.
The bill requires express informed patient consent for the use of COVID-19 treatment alternatives. Practitioners
must consider treatment alternatives approved or authorized by the U.S. Food an d Drug Administration, and explain
the risks and benefits. It prohibits hospitals from interfering with the patient’s right to choose treatment alternatives,
under certain circumstances. Finally, the bill grants pharmacists licensure discipline immunity for dispensing a
prescribed COVID-19 treatment alternative.
The bill has a significant, negative fiscal impact on DLA and DOH, and no impact on local government.
The bill is effective June 1, 2023.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: pcs1013.COM
DATE: 4/23/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
mRNA Vaccines
Vaccines help prevent infection by preparing the body to fight foreign bacteria, viruses, or other
pathogens. All vaccines introduce a harmless piece of a particular bacteria or virus into the body,
triggering an immune response.1
Messenger ribonucleic acid (mRNA) is a molecule that contains instructions directing cells in the human
body to make a certain protein. To enter cells smoothly, mRNA travels within a protective bubble called
a lipid nanoparticle. mRNA vaccines introduce a piece of mRNA that corresponds to a viral protein,
usually a small piece of a protein found on the virus’s outer membrane. By using this mRNA instruction,
cells can build the protein, which matches parts of the pathogen called antigens. 2 Once cells finish
making this protein, they quickly break down the mRNA. mRNA from a vaccine does not enter the
nucleus and does not alter DNA.3
The immune system sees these foreign antigens as invaders, dispatching defenders called antibodies
and T-cells, and training the immune system for potential future attacks. If the real virus attacks the
body, the body’s cells should recognize it, alerting the defender cells.
Though many people first became aware of mRNA technology because of COVID-19 vaccines, the
technology is not new to the scientific community. For decades, scientists have studied mRNA, looking
for ways to unlock its potential to prevent and treat disease. While the mechanism of action for mRNA
technology is relatively simple, researchers have worked for years to develop technologies to allow
mRNA to work in practical applications in the real world.4
mRNA vaccines have been used successfully to attain strong immunity in animals against influenza
virus, Zika virus, rabies virus and others.5 Current research is ongoing for human mRNA vaccines for
various infectious diseases, including HIV, Hepatitis C, Influenza, Malaria, and Tuberculosis.
Additionally, researchers are working on mRNA vaccines for cancer and genetic diseases as well as
treatments for food-based and environmental allergies.6
COVID-19
Beginning in late 2019, a coronavirus, identified as SARS-CoV-2, caused a pandemic of respiratory
illness, called COVID-19, to spread worldwide. COVID-19 can be severe, and has caused millions of
deaths around the world, including over 1.1 million deaths in the United States (US). It can be spread
from person to person and has caused lasting health problems in some.
COVID-19 Vaccines
1 National Library of Medicine, Medline Plus, “What are mRNA vaccines and how do they work?”
https://medlineplus.gov/genetics/understanding/therapy/mrnavaccines/#:~:text=mRNA%20vaccines%20work%20by%20in
troducing,the%20virus%20by%20t he%20vaccine
2 Pfizer, Harnessing the Potential of mRNA, available at https://www.pfizer.com/science/innovation/mrna-technology, (last
visited April 22, 2023).
3 Id. at note 1.
4 Id. at note 2
5 Pardi, N., Hogan, M., Porter, F. et al. mRNA Vaccines — a New Era in Vaccinology, Nat Rev Drug Discov 17, 261–279,
April 2018, available at https://www.nature.com/articles/nrd.2017.243#citeas (last visited April 22, 2023),
6 Penn Medicine, The Future of mRNA Vaccines, available at https://www.pennmedicine.org/mrna, (last vi sited April 22,
2023).
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In 2020, the federal Food and Drug Administration (FDA) issued an Emergency Use Authorization
(EUA)7 for COVID-19 vaccines by Pfizer/BioNTech and Moderna;8 the EUA for the J&J/Janssen
vaccine was issued in 2021.9 The FDA issued full approval for the Pfizer vaccine in August 2021,10 and
for the Moderna vaccine in January 2022.11
In the U.S., approximately 69 percent of the population have completed a primary series; approximately
70 percent of Floridians have completed a primary series. 12 It is estimated that 16.5 percent13 of
Florida’s population and 16.5 percent of the U.S. population14 have had an updated (bivalent) booster
dose.
COVID-19 Treatments
The U.S. Food and Drug Administration (FDA) approves medications for use following a review of
clinical data on safety and effectiveness. In instances of public health emergency, the FDA also issues
EUAs for the use of medical countermeasures; both new drugs not fully approved by the FDA, or
existing drugs not approved by the FDA for this specific purpose. 15
Since 2020, the FDA issued both approvals and EUAs for medications to treat COVID-19, listed in the
table below.16
Drug FDA Action Use
Actemra (Tocilizumab) is approved for the treatment of COVID-19 in hospitalized
Actemra adults who are receiving systemic corticosteroids and require supplemental oxygen,
Approved
(Tocilizumab) non-invasive or invasive mechanical ventilation, or extracorporeal membrane
oxygenation (ECMO).
Veklury (Remdesivir) is approved for the treatment of COVID-19 in adults and pediatric
patients (28 days of age and older and weighing at least 3 kilograms) with positive
Veklury
Approved results of direct SARS-CoV-2 viral testing, who are: hospitalized, or not hospitalized
(Remdesivir)
and have mild-to-moderate COVID-19 and are at high risk for progression to severe
COVID-19, including hospitalization or death.
Olumiant (baricitinib) is approved for the treatment of COVID-19 in hospitalized adults
Olumiant
Approved requiring supplemental oxygen, non-invasive or invasive mechanical ventilation, or
(baricitinib)
extracorporeal membrane oxygenation (ECMO).
Paxlovid
Emergency Use
(nirmatrelvir & An ti vi ra l uses
Authorization
ritonavir)
7 U.S. Food and Drug Administration, Emergency Use Authorization, https://www.fda.gov/emergency-preparedness-and-
response/mcm-legal-regulatory-and-policy-framework/emergency-use-authorization (last visited Nov. 8, 2021). Medical
countermeasures are FDA-regulated products (biologics, drugs, and devices) that may be used in the event of a public h ealth
emergency. A determination that a public health emergency exists is insufficient to enable the FDA to issue EUAs ; See 21 U.S.C. §
360bbb-3; EUA allows the FDA to facilitate the availability and use of medical countermeasures during public health emer gencies.
8 U.S. Centers for Disease Control and Prevention, How CDC Is Making COVID-19 Vaccine Recommendations | CDC (last visited Nov.
11, 2021)
9 U.S. Food and Drug Administration, Janssen COVID-19 Vaccine | FDA (last visited April 5, 2023).
10
U.S. Food and Drug Administration, FDA Approves First COVID-19 Vaccine | FDA (last visited April 5, 2023).
11 Moderna COVID-19 Vaccines, https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-
19/moderna-covid-19-vaccines, (last visited April 5, 2023).
12 U.S. Centers for Disease Control and Prevention, COVID Data Tracker, Daily Update for the United States,
https://covid.cdc.gov/covid-data-tracker/#datatracker-home, (last visited April 5, 2023); See also COVID-19 Integrated County View,
Vaccinations in Florida, https://covid.cdc.gov/covid-data-tracker/#county-view?list_select_state=Florida&data-type=CommunityLevels ,
(last visited April 5, 2023).
13 Id.
14 U.S. Centers for Disease Control and Prevention, COVID Data Tracker, COVID-19 Vaccinations in the United States,
https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-people-booster-percent-total
15 U.S. Food and Drug Administration, Emergency Use Authorization, https://www.fda.gov/emergency-preparedness-and-
response/mcm-legal-regulatory-and-policy-framework/emergency-use-authorization (last visited April 5, 2023). Medical
countermeasures are FDA-regulated products (biologics, drugs, and devices) that may be used in the event of a public health
emergency. A determination that a public health emergency exists is insufficient to enable the FDA to issue EUAs ; See 21 U.S.C. §
360bbb-3; EUA allows the FDA to facilitate the availability and use of medical countermeasures during public health emergencies.
16 U.S. Food and Drug Administration, Coronavirus (COVID-19) Drugs, available at https://www.fda.gov/drugs/emergency-
preparedness-drugs/coronavirus-covid-19-
drugs#:~:text=Veklury%20(Remdesivir)%20is%20approved%20for,are%20at%20high%20risk%20for (last viewed April 1, 2023).
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DATE: 4/23/2023
Lagevrio Emergency Use
An ti vi ra l uses
(molnupiravir) Authorization
Ki n e ret Kineret (anakinra) is authorized for the treatment of COVID-19 in hospitalized adults
(a n a kinra) Emergency Use with pneumonia requiring supplemental oxygen (low- or high-flow oxygen) who are at
(Im mu ne Authorization risk of progressing to severe respiratory failure and likely to have an elevated plasma
Mo d u l a to r) soluble urokinase plasminogen activator receptor (suPAR).
Olumiant
Olumiant (baricitinib) is authorized for the treatment of COVID-19 in pediatric patients 2
(baricitinib) Emergency Use
to less than 18 years of age requiring supplemental oxygen, invasive mechanical
(Im mu ne Authorization
ventilation, or extracorporeal membrane oxygen (ECMO).
Mo d u l a to r)
Actemra Actemra (tocilizumab) is authorized for the treatment of COVID-19 in hospitalized
(tocilizumab) Emergency Use pediatric patients 2 to less than 18 years of age who are receiving systemic
(Im mu ne Authorization corticosteroids and require supplemental oxygen, non-invasive or invasive mechanical
m o d ula to r) ventilation, or extracorporeal membrane oxygenation (ECMO).
ARS-COV-2-targeting monoclonal antibodies (mAbs) are laboratory-produced
antibodies that can help the immune system's attack on SARS-COV-2. These mAbs
REGEN-COV
block entry into human cells, thus neutralizing the virus like other infectious organisms,
(casirivimab &
SARS-CoV-2 can mutate over time, resulting in genetic variation in the population of
imdevimab)
Emergency Use circulating viral strains. Some variants can cause resistance to one or more of the mAb
SAR S-C OV-2 -
Authorization therapies authorized to treat COVID-19. Due to the high frequency of variants
ta rg e ting
circulating within the United States that are not susceptible to the following mAbs, this
Mo n o cl ona l
product is not currently authorized in any U.S. region until further notice by FDA and
An ti b o di es
may not be administered for the pre-exposure prophylaxis for prevention or the
treatment of COVID-19 under the EUA.
ARS-COV-2-targeting monoclonal antibodies (mAbs) are laboratory-produced
antibodies that can help the immune system's attack on SARS-COV-2. These mAbs
block entry into human cells, thus neutralizing the virus like other infectious organisms,
Sotrovimab
SARS-CoV-2 can mutate over time, resulting in genetic variation in the population of
SAR S-C OV-2 -
Emergency Use circulating viral strains. Some variants can cause resistance to one or more of the mAb
ta rg e ting
Authorization therapies authorized to treat COVID-19. Due to the high frequency of variants
Mo n o cl ona l
circulating within the United States that are not susceptible to the following mAbs, this
An ti b o di es
product is not currently authorized in any U.S. region until further notice by FDA and
may not be administered for the pre-exposure prophylaxis for prevention or the
treatment of COVID-19 under the EUA.
ARS-COV-2-targeting monoclonal antibodies (mAbs) are laboratory-produced
antibodies that can help the immune system's attack on SARS-COV-2. These mAbs
Bamlanivimab &
block entry into human cells, thus neutralizing the virus like other infectious organisms,
Etesevimab
SARS-CoV-2 can mutate over time, resulting in genetic variation in the population of
SAR S-C OV-2 -
Emergency Use circulating viral strains. Some variants can cause resistance to one or more of the mAb
ta rg e ting
Authorization therapies authorized to treat COVID-19. Due to the high frequency of variants
Mo n o cl ona l circulating within the United States that are not susceptible to the following mAbs, this
An ti b o di es
product is not currently authorized in any U.S. region until further notice by FDA and
may not be administered for the pre-exposure prophylaxis for prevention or the
treatment of COVID-19 under the EUA.
ARS-COV-2-targeting monoclonal antibodies (mAbs) are laboratory-produced
antibodies that can help the immune system's attack on SARS-COV-2. These mAbs
block entry into human cells, thus neutralizing the virus like other infectious organisms,
Bebtelovimab
SARS-CoV-2 can mutate over time, resulting in genetic variation in the population of
SAR S-C OV-2 - Emergency Use circulating viral strains. Some variants can cause resistance to one or more of the mAb
ta rg e ting
Authorization therapies authorized to treat COVID-19. Due to the high frequency of variants
Mo n o cl ona l
circulating within the United States that are not susceptible to the following mAbs, this
An ti b o di es
product is not currently authorized in any U.S. region until further notice by FDA and
may not be administered for the pre-exposure prophylaxis for prevention or the
treatment of COVID-19 under the EUA.
ARS-COV-2-targeting monoclonal antibodies (mAbs) are laboratory-produced
Evusheld antibodies that can help the immune system's attack on SARS-COV-2. These mAbs
(tixagevimab co- block entry into human cells, thus neutralizing the virus like other infectious organisms,
packaged with SARS-CoV-2 can mutate over time, resulting in genetic variation in the population of
cilgavimab) Emergency Use circulating viral strains. Some variants can cause resistance to one or more of the mAb
SAR S-C OV-2 - Authorization therapies authorized to treat COVID-19. Due to the high frequency of variants
ta rg e ting circulating within the United States that are not susceptible to the following mAbs, this
Mo n o cl ona l product is not currently authorized in any U.S. region until further notice by FDA and
An ti b o di es may not be administered for the pre-exposure prophylaxis for prevention or the
treatment of COVID-19 under the EUA.
Propofol-Lipuro Emergency Use Maintains sedation, generally via continuous intravenous infusion, in patients who are
1%
Authorization intubated and require mechanical ventilation in an intensive care unit (ICU) setting.
(Sedative)
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Regiocit Continuous renal replacement therapy (CRRT) is a type of “dialysis,” which is a
(R e n al Emergency Use machine treatment that filters and purifies the blood when a patient’s kidneys are
re p l acement Authorization damaged or are not functioning normally. CRRT is used for patients with kidney injury
th e ra py) in acute care settings.
Fr es enius Medical
multiFiltr ate/multi Continuous renal replacement therapy (CRRT) is a type of “dialysis,” which is a
Bic /multiPlus Emergency Use machine treatment that filters and purifies the blood when a patient’s kidneys are
(R e n al Authorization damaged or are not functioning normally. CRRT is used for patients with kidney injury
re p l acement in acute care settings.
th e ra py)
Some practitioners and patients advocate for the use of other drug and non-drug remedies to treat
COVID-19, with or without the use of the above FDA-approved or -authorized drugs, including, for
example:
Hydroxychloroquine17
Ivermectin18
Methanol
Herbal medicines
Vitamins
Minerals
Probiotics
Nasal saline irrigation and gargling
Ultraviolet light
Green tea
Elderberry syrup
Ginger
Federal COVID-19 Vaccination and Prevention Requirements
In addition to approving vaccines and treatments, the federal government adopted policies to require
vaccination and other preventive measures for businesses and health care facilities.
OSHA COVID-19 Emergency Temporary Standards
On November 4, 2021, the federal Occupational Safety and Health Administration (OSHA) issued
“COVID-19 Vaccination and Testing; Emergency Temporary Standards” (OSHA ETS), along with a
number of Fact Sheets, FAQs, and templates for a mandatory vaccination policy, and a vaccination,
testing, and face covering policy. The OSHA ETS was published in the Federal Register on November
5, 2021. 19
In summary, the OSHA ETS required all employers with 100 or more employees to ensure their
workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative
test result at least weekly and wear a mask. These employers are also required to provide paid time off
to workers who decide to be vaccinated so they can recover in the event of experiencing any short-term
side effects from the vaccination. The OSHA ETS provides penalties of up to $14,000 per violation.
According to the Administration, the requirement was expected to impact over 80 million workers in
private sector businesses with 100 or more employees. 20
17 See, U.S. Food and Drug Administration, “FDA cautions against use of hydroxychloroquine or chloroquine for COVID -19 outside of
the hospital setting or a clinical trial due to risk of heart rhythm problems”, Jan. 12, 2022, available at https://www.fda.gov/drugs/fda-
drug-safety-podcasts/fda-cautions-against-use-hydroxychloroquine-or-chloroquine-covid-19-outside-hospital-setting-or (last viewed
April 1, 2023).
18 See, U.S. Food and Drug Administration, “FAQ: COVID-19 and Ivermectin Intended for Animals”, current as of March 10, 2023,
available at https://www.fda.gov/animal-veterinary/product-safety-information/faq-covid-19-and-ivermectin-intended-
animals#:~:text=A%3A%20No.,acquired%20from%20a%20legitimate%20source (last viewed April 1, 2023).
19 COVID–19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402, https://www.federalregister.gov/d/2021-
23643
20 The White House, Path Out of the Pandemic: President Biden’s COVID-19 Action Plan, (Sep. 2021), https://www.vsba.org/wp-
content/uploads/2021/09/Path-out-of-the-Pandemic-POTUS-COVID-19-Action-Plan.pdf (last visited April 5, 2023).
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Challenges to the new OSHA ETS and applications for a stay on its enforcement were brought in
almost every federal circuit in the US. On November 6, 2021, a panel of the US Court of Appeal for the
Fifth Circuit granted a nationwide stay of the OSHA ETS pending further action of that court, because
the “petitions give cause to believe there are grave statutory and constitutional issues with the
mandate.” On November 12th, the Fifth Circuit reaffirmed the initial stay finding that the OSHA ETS was
“overbroad” and “flawed,” and determined that it exceeded OSHA’s statutory authority. 21
All the cases were consolidated and transferred to the Sixth Circuit Court of Appeal,22 which has the
authority to modify, rescind, or leave in place the stay issued by the Fifth Circuit. 23 As of April, 2023,
OSHA has withdrawn the vaccination and testing ETS as an enforceable emergency temporary
standard and suspended enforcement and implementation activities regarding the ETS pending further
development in the litigation.24
CMS Vaccination Rule
On November 5, 2021, CMS issued a new regulation (CMS Rule) 25 governing Medicare certification
and Medicaid provider enrollment. As a condition of receiving Medicare and Medicaid funds, health
care providers must establish and implement policies that will ensure that all workers are fully
vaccinated26 against COVID-19.27 In 2022, CMS revised its guidance and survey procedures for all
provider types related to assessing and maintaining compliance with the staff vaccination
regulatory requirements. The revisions address frequency of review of the staff vaccination
requirements to ensure that deficiency citations recognize good faith efforts by providers/suppliers. 28
CMS estimated the rule would apply to 13,050,000 health care staff in the first year, nationwide. 29
State survey agencies conduct provider surveys to ensure compliance with CMS regulations; in Florida,
federal enforcement surveys are conducted by the Agency for Health Care Administration.
On November 10, 2021, ten states 30 filed a lawsuit in federal court challenging the CMS rule. The
states argue the rule violates the federal Administrative Procedure Act, is not authorized by Congress,
and violates Medicare laws requiring consultation with state officials prior to issuing certain types of
rules. The states also make constitutional claims related to spending powers, the anti-commandeering
doctrine and the Tenth Amendment, and requested declaratory and injunctive relief. 31 The court
granted the plaintiffs’ request for expedited briefing, but a hearing date on the preliminary injunction has
not yet been set.
21 National Law Review, Fifth Circuit Hits Pause on OSHA COVID-19 Vaccine or Testing Emergency Standard,
https://www.natlawreview.com/article/fifth-circuit-hits-pause-osha-covid-19-vaccine-or-testing-emergency-standard
22 The 6 th Circuit hears cases from federal district courts in Kentucky, Michigan, Ohio, and Tennessee.
23 Consolidation Order, In Re: Occupational Safety and Health Agency, Interim Final Rule: COVID-19 Vaccination and Testing;
Emergency Temporary Standard, 86 Fed. Reg. 61402, Issued On November 4, 2021 , MCP No. 165, J.P.M.L. (November 16, 2021).
24
U.S. Dept. of Labor, OSHA, COVID-19 Vaccination and Testing ETS, January 25, 2022, https://www.osha.gov/coronavirus/ets2, (last
visited April 5, 2023); See Also, JDSupra, Navigating the Uncertainties of the ETS: What Employers Should Do Now,
https://www.jdsupra.com/legalnews/navigating-the-uncertainties-of-the-ets-4266782/ (last visited April 5, 2023).
25 The regulation was issued as an Interim Final Rule. Under Medicare law, Interim Final Rules expire three years after issuance,
unless finalized. The Interim Final Rule was effective on the day of publication in the Federal Register (Nov. 5, 2021). See, Social
Security Act § 1871(a)(3) (42 U.S.C. § 1395hh(a)(3)).
26 “Fully vaccinated” means a person 14 days after receipt of either a single-dose vaccine or the second of a two-dose vaccinations
sequence. Receiving a booster is not required to be considered “fully vaccinated.” 61563, citing Centers for Disease Control and
Prevention, Frequently Asked Questions ab out COVID-19 Vaccination, , Mar. 29, 2023, https://www.cdc.gov/coronavirus/2019-
ncov/vaccines/faq.html, (lastvisited April 5, 2023).
27 Medicare and Medicaid Programs; Om nibus COVID-19 Health Care Staff Vaccination, 86 Fed. Reg. 61555 to 61627 (Nov. 5, 2021)
(to be codified at 42 C.F.R. pts. 416, 418, 441, 460, 482-486, 491, and 494), available at 2021-23831.pdf (govinfo.gov) (last visited April
5, 2023).
28 Centers for Medicare & Medicaid Services, Memorandum, Revised Guidance for Staff Vaccination Requirements,
https://www.cms.gov/files/document/qs0-23-02-all.pdf, Oct. 26, 2022, (last visited April 5, 2023).
29 Health Care Staff Vaccination, 86 Fed. Reg. 61603, Table 6.
30 Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, New Hampshire.
31 Missouri, et al, v. Joseph Biden, Jr., et al, No. 21-01329, (E.D. Missouri filed on Nov. 10, 2021).
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On November 18, 2021, the State of Florida filed a lawsuit in the Northern District of Florida challenging
the CMS Rule.32 The state argues the CMS action:
Exceeds its authority under federal law;
Was issued without consulting the states as required under law; 33
Was issued without the notice and comment period required by law;
Is arbitrary and capricious; and
Is a condition of receiving federal funds which violates the Spending Clause of the U.S.
Constitution.34
Florida requested the court issue a temporary restraining order and preliminary and permanent
injunctive relief prohibiting defendants from enforcing the mandate which was denied for failure to make
a showing of irreparable harm to justify such an order.35
On January 13, 2022, the U.S. Supreme Court upheld the validity of the CMS rule. 36 Thereafter, Florida
moved to dismiss its appeal, and the case was terminated.37
In response to these federal actions, the Florida Legislature, in Special Session 2021-B, adopted
legislation to regulate businesses, government entities and educational institutions related to
requirements for vaccination, proof of vaccination or infection recovery, and the use of face masks.
(See below.)
COVID-19 Vaccination Mandates in Florida
Private Businesses
Section 381.00317, F.S., generally prohibits businesses from requiring any employee or contracted
worker to be vaccinated for COVID-19. This prohibition applies to any form of corporation, partnership,
association, cooperative, joint venture, business trust, or sole proprietorship that conducts business in
this state, and any charitable organization.
Businesses can require employee vaccination, if they allow the employees to opt out of vaccination for
these or any other reasons:
for medical or religious reasons;
based on immunity to COVID-19 (as determined by testing methods set by DOH rule);
if the employee agrees to periodic testing; or
if the employee uses employer-provided personal protective equipment (PPE).
The statute lays out specific criteria for claiming each of the above exemptions, and requires employer
to use DOH forms for employees to submit statements of exemption.
This prohibition is enforced by the Department of Legal Affairs (DLA) within the Office of the Attorney
General. Employees may file complaints with DLA, which investigates them. DLA must offer the
employer the opportunity to comply with the law. However, DLA is required to fine an employer who
violates this prohibition and terminates an employee due to a vaccination mandate: up to $10,000 per
violation for employers with under 100 employees; and up to $50,000 per violation for employers with
100 or more employees. The statute authorizes the Attorney General to consider various factors and
mitigating circumstances when determining the amount of the fine.
32 Florida v. Dep’t. of Health and Human Srvcs., et al., No. 21-2722 (N.D. Fla. filed on November 17, 2021).
33 42 U.S.C. s. 1395z
34 U.S. Const. art. I, s. 8
35 Florida v. Dep’t. of Health and Human Srvcs., et al., No. 21-2722 (N.D. Fla.) (See Order denying Motion for Preliminary Injunction,
November 20, 2021).
36 Biden. v. Missouri, 142 S.Ct. 647 (2022).
37 Florida v. Dep’t. of Health and Human Srvcs., et al. No. 21- 2722 (N.D. Fla.) (See Notice of Voluntary Dismissal by State of Florida,
February 4, 2022).
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An employer can avoid fines by reinstating employee back pay, if accomplished prior to the issuance of
a final order.
In addition, an employee terminated for failure to comply with an employer vaccination mandate is
eligible for reemployment assistance under ch. 443, F.S., and that refusal to comply does not disqualify
the employee based on misconduct.38
Section 381.00318, F.S., provides a public records exemption for information related to vaccination
mandate investigation of a private business. All such information is both confidential and exempt from
disclosure during an active investigation, and remains so when the investigation is no longer active if
the disclosure, as determined by the Attorney General, would jeopardize another, active, investigation,
or result in certain harms to the complaining employee.
Since enactment, DLA has received 927 complaints, the majority of which were closed due to lack of a
statutory violation. DLA found probable cause for nine complaints, and filed a single administrative
complaint against an employer.39
Government Entities and Educational Institutions
Section 112.0441 prohibits governmental entities and educational institutions from requiring any
employee or contracted worker to be vaccinated for COVID-19. This prohibition applies to the state and
any political subdivision of the state, including local governments, boards and commissions; and to
schools governed by school districts, charter schools, state universities, state college system
institutions, developmental research schools, the Florida Virtual School and the Florida School for the
Deaf and Blind.
The Department of Health (DOH) enforces this prohibition: current law authorizes DOH to impose a fine
up to $5,000 per violation. In addition, an employee terminated for failure to comply with an employer
vaccination mandate is eligible for reemployment assistance under ch. 443, F.S.
Similarly, s. 381.00319, F.S., prohibits educational institutions from requiring students to be vaccinated.
Unlike the other vaccination mandate prohibitions, this prohibition is not enforced by any state agency.
Instead, the law establishes a cause of action for adult students, or parents of minor students, to obtain
injunctive relief against the educational institution. If the parent or student prevails, the law requires the
court to award attorney fees and court costs to the plaintiff.
Sections 381.00317, 112.0441 and 381.00319, F.S., expire on June 1, 2023, unless saved by the
Legislature, thereby ending these prohibitions on COVID-19 vaccination mandates by private
businesses, governmental entities and educational institutions.
Documentation of Vaccination or Post-Infection Recovery
Private Businesses, Government Entities and Educational Institutions
38 The Federal-State Unemployment Insurance Program provides unemployment benefits to eligible workers unemployed through no
fault of their own, as determined by state law. The program is administered as a partnership between the federal government a nd the
states. Florida’s program, administered by the Department of Economic Opportunity (DEO) under ch. 443, F.S., requires claimants to
meet certain eligibility criteria. Applications may be disqualified if the employee:
Voluntarily left work without good cause attributable to his or her employer;
Has been discharged by his or her employer for misconduct;
Is unemployed due to a suspension for misconduct connected to his or her work;
Is unemployed due to a leave of absence initiated by the individual; or
Is discharged for misconduct connected with the individual’s work, consisting of drug use , confirmed by a positive drug test
Failed without good cause to apply for available suitable work, accept suitable work when offered to him or her, or return to his or
her customary self-employment when directed by DEO.
39 Department of Legal Affairs, email to committee staff from Libby Guzzo, Legislative Affairs Director, Feb. 7, 2023 (on file with
committee staff).
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Section 381.00316, F.S., prohibits private businesses, government entities and educational institutions
from requiring people to provide documentation certifying COVID-19 vaccination or post-infection
recovery to access the business, governmental operations or school attendance or enrollment, or to
access the institution and its services.
Current law does not prohibit the use of screening protocols, and expressly states that it should not be
construed to restrict businesses, governments and educational institutions from using protocols, if used
in a manner consistent with “authoritative or controlling” government guidance.
DOH enforces this prohibition: current law authorizes DOH to impose a fine up to $5,000 per violation.
DOH received a combined total of 4,396 notifications of potential violations since enactment of the
prohibitions on vaccination mandates and requirements for documentation of vaccination or post-
infection recovery, as follows:
Business Entities – 3,216
Governmental Entities – 174
Educational Institutions – 231
Other (not specific) – 775
DOH issued 14 warning letters and 5 Notices of Violation, resulting in collection of two fines.40
Masks and Quarantine or Isolation
Schools
Section 1002.20(2)(n), F.S., prohibits K-12 public schools from requiring students to wear face masks
or other facial coverings at school, other than when necessary for occupational or laboratory safety.
Students are allowed to wear face masks if their parents allow it.
Current law also prohibits K-12 public schools from requiring students and employees to stay home from
school if exposed to COVID-19, if they are asymptomatic and have not tested positive for COVID-19.
As with the student vaccination law, this prohibition is enforced by civil litigation, rather than by a state
agency. Parents and adult students may bring an action for declaratory and injunctive relief against the
school district for violations; and, if they prevail, will be awarded attorney fees and costs.
Section 1002.20(2)(n), F.S., expires on June 1, 2023, unless saved by the Legislature, thereby ending
this prohibition on mask requirements and COVID-19 quarantine requirements by private businesses,
public K-12 schools.
Private Businesses and Government Entities
Current law does not address mask or quarantine requirements by other (non-educational) government
entities, or by private businesses.
Effect of the Bill
The bill significantly expands regulation of COVID-19-related policies, and other vaccine-related
policies, for private businesses, governmental entities and educational institutions.
Facial Coverings, Vaccination Status, and COVID-19 Tests and Post-Infection Recovery Status
Businesses and Governments
40 Department of Health, email from Gangul Gabadage, April 5, 2023, on file with committee staff.
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The bill amends s. 381.0016, F.S., to add prohibitions for private businesses and government entities
on requiring any person to take a COVID-19 test to gain entry to, or services from, the business or
government entity, or as a condition of contracting with, employing, or promoting, anyone. The bill
expands these COVID-19-related prohibitions to include business-imposed, and government-imposed,
mandates related to any EUA or mRNA vaccine; not just those related to COVID-19. Under the bill, the
provisions related to mRNA vaccines will sunset July 1, 2025, unless reenacted by the Legislature.
In addition, the bill prohibits businesses and governments from discriminating against employees or
applicants for employment, or otherwise discriminate against any person, based COVID-19 vaccination,
post-infection recovery status, failure to take a COVID-19 test, or vaccination status related to any EUA
or mRNA vaccine.
Facial Coverings
Similarly, the bill adds prohibitions for private businesses and government entities on requirements to
wear a facial covering, including a cloth or surgical face mask, a face shield, or any other device that
covers the mouth and nose. This prohibition does not apply to health care providers and practitioners, if
they are in compliance with facial covering prohibitions and regulations elsewhere in the bill (see
below).
Other Vaccines
The bill also addresses business and government policies related to vaccines other than COVID-19,
EUA and mRNA vaccines: it requires businesses and governments to provide for exemptions and
accommodations for religious and medical reasons, in accordance with federal law. 41
Enforcement
The bill requires DLA to enforce these new prohibitions, and enforce the current prohibition on requiring
documentation of COVID-19 vaccination or post-infection recovery (which is currently enforced by
DOH). The DLA may impose an administrative fine up to $5,000 for each violation, which revenues
must be deposited into the General Revenue Fund, consistent with the enforcement provisions in
current law. The bill authorizes DLA to take certain administrative actions when investigating a
complaint of a violation of these provisions, such as administering oaths, taking depositions, conducting
inspections, issuing subpoenas, etc.
Consistent with current law, the bill authorizes reemployment assistance under ch. 443, F.S., for an
employee terminated for failure to comply with prohibited mandates.
Educational Institutions
The bill amends s. 381.0016, F.S., to add prohibitions for educational institutions on requiring any
person to take a COVID-19 test to gain access to, or services from, the educational institution. The bill
expands these COVID-19-related prohibitions to include vaccination mandates imposed by educational
institutions related to any EUA or mRNA vaccine; not just those related to COVID-19. Under the bill, the
provisions related to mRNA vaccines will sunset July 1, 2025, unless reenacted by the Legislature.
The bill prohibits educational institutions from discriminating against any person based on COVID-19
vaccination, post-infection recovery status, failure to take a COVID-19 test or wear a facial covering, or
vaccination status related to any EUA or mRNA vaccine.
41 See, e.g., the federal Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, Title VII of the Civil
Rights Act of 1964, the Pregnancy Discrimination Act and the Genetic Information Nondiscrimination Act of 2008. This
group of federal laws contain various protections from discrimination on the basis of disability, medical condition, sex,
race, age, pregnancy, and religion. Employers are required to provide reasonable accommodation when requested, and
are authorized to make sufficient inquiry about the nature and justification of the request to make a determination, within
parameters that protect the worker from discrimination.
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Facial Coverings
Similarly, the bill adds a prohibition on requirements to wear a facial covering, including a cloth or
surgical face mask, a face shield, or any other device that covers the mouth and nose. This prohibition
does not apply to facial covering requirements necessary for classes with occupational or laboratory
safety requirements.
Other Vaccines
The bill also addresses educational institution policies related to vaccines other than COVID-19, EUA
and mRNA vaccines: it requires such institutions to provide for exemptions and accommodations for
religious and medical reasons, in accordance with federal law. 42
Enforcement
The bill requires DOH to enforce these new prohibitions, and enforce the current prohibition on
requiring documentation of COVID-19 vaccination or post-infection recovery, consistent with the
enforcement provision in current law. The DOH may impose an administrative fine up to $5,000 for
each violation, which revenues must be deposited into the General Revenue Fund, consistent with the
enforcement provisions in current law. The bill authorizes DOH to take certain administrative actions
when investigating a complaint of a violation of these provisions, such as administering oaths, taking
depositions, conducting inspections, issuing subpoenas, etc.
The bill repeals the current enforcement provision for violations of the COVID-19 vaccination or post-
infection recovery documentation prohibition. Under the bill, parents (and adult children) will no longer
be expressly authorized to bring an action against the educational institution for declaratory and
injunctive relief.
The bill does not save s. 381.00317, F.S., or s. 112.0441, F.S., from repeal on June 1, 2023, so the
current law prohibitions against private businesses and government entities requiring employee
vaccination will terminate on that date.
Facial Coverings and Health Care Facilities
The bill creates s. 408.833, F.S., to address facial covering requirements in health care facilities.
First, it requires the Agency for Health Care Administration (AHCA) and DOH to jointly develop
standards for facial coverings for infection control in health care settings, and adopt them in the form of
emergency rules by July 1, 2023, and publish the standards on their websites. The bill exempts the
agencies from current law making emergency rules effective for only 90 days, and provides that the
emergency rules will remain in effect until the agencies adopt rules under the non-emergency
procedures of ch. 120.
Second, the bill prohibits health care providers and practitioners from requiring facial coverings
inconsistent with the AHCA/DOH standards. This applies to all health care practitioners and health care
settings regulated by DOH and its boards, to facilities licensed by AHCA, certain AHCA-regulated
health care clinics exempt from regulation, and certain providers regulated by the Agency for Persons
with Disabilities.
Instead, the bill requires health care providers and practitioners to adopt facial covering policies and
procedures based on the AHCA/DOH standards by August 1, 2023, publish them online, and post them
in their offices or facilities.
42 See, Id.
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The bill makes violations of this provision grounds for licensure discipline under the applicable practice
acts or facility licensure acts.
COVID-19 Treatment Alternatives
The bill creates s. 456.62, F.S., to regulate interactions between practitioners and patients diagnosed
with COVID-19 related to treatment medication decisions.
Heath care practitioners must obtain informed consent from the patient (or the patient’s legal
representative) before prescribing medication to treat COVID-19. The practitioner must explain the
“alternative medications” to treat COVID-19, including the benefits and risks, sufficiently to allow the
patient to make a “prudent” decision, taking into account the patient’s physical state and ability to
understand the information.
The bill does not define “alternative medications”; instead, it requires the practitioner to consider
medications currently authorized or approved by the federal Food and Drug Administration (see table
above, pp. 3-4). The practitioner must use best clinical judgment to identify, among those alternatives,
which would benefit the patient.
The bill creates s. 395.1057, F.S., to establish a patient right to choose COVID-19 treatment
alternatives in a hospital, and prohibits hospitals from interfering with that right, if the treatment is
recommended by a health care practitioner with privileges at that hospital. Interference with the
patient’s right is grounds for discipline under the hospital licensure act.
Current law related to pharmacy practice obligates pharmacies to exercise independent professional
judgment when dispensing a prescription. The bill grants license disciplinary immunity to a pharmacist
when properly dispensing a COVID-19 treatment alternative.
Policies of International Health Organizations
The bill prohibits businesses, governments and educational institutions from adopting, implementing,
and enforcing public health policies issued by international organizations as guides for their internal
policies. Businesses, governments and educational institutions may use such policies only if authorized
by the legislature in law, by an executive branch rule, or by a gubernatorial executive order issued
under a declared emergency under s. 252.36, F.S.
The bill provides an effective date of June 1, 2023.
B. SECTION DIRECTORY:
Section 1: Amending s. 381.00316, F.S., relating to discrimination based on health care choices;
prohibition.
Section 2: Amending s. 381.00319, F.S., relating to prohibition on mask mandates and vaccination
and testing mandates.
Section 3: Creating s. 381.00321, F.S., relating to international health organization policies.
Section 4: Creating s. 395.1057, F.S., relating to patients’ rights to choose COVID-19 treatment
alternatives.
Section 5: Creating s. 408.824, F.S. relating to facial covering requirements for health care
practitioners and health care providers.
Section 6: Creating s. 456.62, relating to communication of COVID-19 treatment alternatives.
Section 7: Amending s. 465.0266, F.S., relating to common database.
Section 8: Amending s. 1002.20, F.S., relating to K-12 student and parent rights.
Section 9: Creating an unnumbered section of law establishing a statutory sunset.
Section 10: Providing an effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
STORAGE NAME: pcs1013.COM PAGE: 12
DATE: 4/23/2023
1. Revenues:
DOH and DLA may experience increased revenue from fines, which the bill requires to be
deposited into the General Revenue Fund.
2. Expenditures:
The Department of Legal Affairs (DLA) expended $519,758.77 in personnel costs to date enforcing
the current law prohibition against vaccine mandates by private employers. DLA received 927
complaints, the majority of which were closed due to lack of a statutory violation. DLA found
probable cause for nine complaints, and filed a single administrative complaint against an
employer.43 DLA estimates the need for an additional 6.2 FTE to implement the bill’s provisions,
totaling $275,080.99 in recurring general revenue, as indicated in the table below. 44
Class Position Working Title # Base Pay Fringe Total % time Estimated
Code FTE Benefits spent Cost
7747 Senior Assistant 1.2 $94,786.69 $33,175.34 $127,962.03 100% $153,554.44
Attorney General
OPS Paralegal Specialist 2 $41,600.00 $12,480.00 $54,080.00 100% $108,160.00
2117 Systems Programming 1 $88,181.17 $30,863.41 $119,044.58 9% $10,860.60
Administrator-SES
3128 Paralegal Specialist I 1 $38,000.04 $13,300.01 $51,300.05 1% $569.47
3126 Legal Assistant III 1 $33,721.74 $11,802.61 $45,524.35 4% $1,936.48
Annual Cost $275,080.99
As of April 11, DLA has 83 vacancies, so can address this need using existing positions. The Fiscal
Year 2023-2024 House and Senate budgets both provide $5 million in nonrecurring General
Revenue to DLA for COVID-related litigation, including the work required of DLA by this bill. 45
Due to the potential increase of notifications and based on the number of complaints received
during the implementation of the COVID-19 Vaccine Documentation Program, DOH projects a need
for two positions at a professional level. The Department can initiate budget amendment actions
during Fiscal Year 2023-2024 to address this need using existing positions. 46
The bill provisions related to AHCA enforcement of the patients’ right to choose COVID-19
treatment alternatives in hospitals has no fiscal impact on AHCA.
The bill provisions requiring AHCA and DOH to establish emergency rules has an insignificant
negative impact on those agencies, which can be absorbed within current resources .
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
43 Department of Legal Affairs, email to committee staff from Libby Guzzo, Legislative Affairs Dire ctor, Feb. 7, 2023 (on file with
committee staff).
44 Department of Legal Affairs, Agency Bill Analysis of HB 1013, March 7, 2023. Note that this fiscal impact estimate is based o n the bill
as originally filed, and may require adjustment to accurately esti mate the impact of the CS/HB content.
45 House Fiscal Year 2023-2024 GAA Section 82, reverting and appropriating the unexpended funds for Fiscal Year 2022 -2023 for
COVID-19 related litigation.
46 Department of Health, Agency Bill Analysis for HB 1013, April 5, 2023.
STORAGE NAME: pcs1013.COM PAGE: 13
DATE: 4/23/2023
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:
The bill and current law provide DLA, DOH and AHCA sufficient rule-making authority to implement the
bill.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
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DATE: 4/23/2023
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
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1 A bill to be entitled
2 An act relating to protection from discrimination
3 based on health care choices; amending s. 381.00316,
4 F.S.; providing legislative intent and findings;
5 defining terms; prohibiting business entities and
6 governmental entities from requiring certain
7 documentation or COVID-19 testing to gain access to,
8 entry upon, or service from such entities or as a
9 condition of contracting, hiring, promotion, or
10 continued employment; prohibiting business and
11 governmental entities from refusing to hire persons,
12 discharging persons, depriving or attempting to
13 deprive persons of employment opportunities, adversely
14 affecting persons with respect to employment, or
15 otherwise discriminating against any person based on
16 knowledge or belief of a person's vaccination or
17 COVID-19 postinfection recovery status or failure to
18 take a COVID-19 test; requiring such entities to
19 provide exemptions and reasonable accommodations for
20 religious and medical reasons; prohibiting such
21 entities from requiring persons to wear face coverings
22 in order to gain access to, entry upon, services from,
23 or admission to such entities or from otherwise
24 discriminating against persons based on their refusal
25 to wear a facial covering; providing exceptions;
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26 requiring the Department of Health to adopt certain
27 emergency rules; providing administrative penalties;
28 authorizing the Department of Legal Affairs to take
29 specified actions for purposes of conducting
30 investigations or proceedings; requiring that
31 collected fines be deposited in the General Revenue
32 Fund; providing construction; providing that certain
33 terminated employees are eligible for reemployment
34 assistance; amending s. 381.00319, F.S.; revising and
35 defining terms; revising provisions related to the
36 prohibition on COVID-19-related mandates by
37 educational institutions; prohibiting educational
38 institutions from imposing certain vaccine mandates on
39 any person; prohibiting educational institutions from
40 requiring a person to provide certain documentation or
41 requiring a COVID-19 test to gain admission to, access
42 to, entry upon, or service from such institutions or
43 otherwise discriminating against any person based on
44 such person's vaccination or COVID-19 postinfection
45 recovery status or failure to take a COVID-19 test;
46 requiring educational institutions to provide
47 exemptions and reasonable accommodations for religious
48 and medical reasons; prohibiting educational
49 institutions from requiring persons to wear face
50 coverings, from denying persons access to, entry upon,
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51 services from, or admission to such institutions, or
52 from otherwise discriminating against persons based on
53 their refusal to wear a facial covering; providing
54 exceptions; requiring the Department of Health to
55 adopt certain emergency rules; providing
56 administrative penalties; authorizing the department
57 to take specified actions for purposes of conducting
58 investigations or proceedings; requiring that
59 collected fines be deposited in the General Revenue
60 Fund; providing construction; authorizing the
61 department to adopt rules; creating s. 381.00321,
62 F.S.; prohibiting governmental entities and
63 educational institutions from adopting, implementing,
64 or enforcing certain public health policies or
65 guidelines unless authorized by state law, rule, or
66 executive order; creating s. 395.1057, F.S.;
67 prohibiting hospitals from interfering with patients'
68 right to choose COVID-19 treatment alternatives if
69 certain conditions are met; providing for disciplinary
70 action; creating s. 408.824, F.S.; defining terms;
71 requiring the Agency for Health Care Administration
72 and the Department of Health to jointly develop
73 standards for the appropriate use of facial coverings
74 in health care settings by a specified date; requiring
75 the agency and the department to adopt emergency rules
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76 to develop such standards; requiring the agency and
77 the department to post such standards on their
78 respective websites and provide a link for reporting
79 related violations; requiring certain health care
80 practitioners and all health care providers to
81 establish facial covering policies and procedures by a
82 specified date; providing requirements for such
83 policies and procedures; requiring such health care
84 practitioners and health care providers to make their
85 policies and procedures easily accessible on their
86 respective websites; beginning on a specified date,
87 prohibiting health care practitioners and health care
88 providers from requiring persons to wear a facial
89 covering for any reason unless the requirement is in
90 accordance with specified policies and procedures;
91 providing for disciplinary action; creating s. 456.62,
92 F.S.; requiring health care practitioners treating
93 patients diagnosed with COVID-19 to obtain patients'
94 informed consent before prescribing any medications
95 for treatment of COVID-19; providing a requirement for
96 obtaining such informed consent; requiring health care
97 practitioners to include certain information and use
98 their best clinical judgment when making certain
99 determinations related to alternative medications for
100 treatment of COVID-19; requiring health care
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101 practitioners to indicate certain information in their
102 patients' medical records; providing construction;
103 amending s. 465.0266, F.S.; exempting certain
104 pharmacists from disciplinary action under certain
105 circumstances; amending s. 1002.20, F.S.; conforming
106 provisions to changes made by the act; abrogating the
107 future repeal of specified provisions; providing for
108 the future repeal of specified provisions; providing
109 effective dates.
110
111 Be It Enacted by the Legislature of the State of Florida:
112
113 Section 1. Section 381.00316, Florida Statutes, is amended
114 to read:
115 381.00316 Discrimination by governmental and business
116 entities based on health care choices; prohibition COVID-19
117 vaccine documentation.—
118 (1)(a) It is the intent of the Legislature that Floridians
119 be free from mandated facial coverings, mandates of any kind
120 relating to vaccines as provided in this section, and
121 discrimination based on such vaccination status.
122 (b) The Legislature finds that society is harmed by
123 discrimination based on vaccination status as provided in this
124 section when healthy persons are prevented from participating in
125 society and accessing employment opportunities. The Legislature
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126 further finds that remedies to prevent such discrimination are
127 in the best interest of this state.
128 (2) As used in this section, the term:
129 (a) "Business entity" has the same meaning as in s.
130 606.03. The term also includes a charitable organization as
131 defined in s. 496.404, a corporation not for profit as defined
132 in s. 617.01401, or any other business operating in this state.
133 (b) "COVID-19" means the novel coronavirus identified as
134 SARS-CoV-2; any disease caused by SARS-CoV-2, its viral
135 fragments, or a virus mutating therefrom; and all conditions
136 associated with the disease which are caused by SARS-CoV-2, its
137 viral fragments, or a virus mutating therefrom.
138 (c) "COVID-19 vaccine" means a preparation designed to
139 stimulate the human body's immune response against COVID-19.
140 (d) "Department" means the Department of Legal Affairs.
141 (e) "Emergency use authorization vaccine" means any
142 vaccine that is authorized for emergency use under 21 U.S.C.
143 360bbb–3(a)(1) and qualifies as an unapproved product under 21
144 U.S.C. 360bbb–3(a)(2)(A).
145 (f) "Governmental entity" means the state or any political
146 subdivision thereof, including the executive, legislative, and
147 judicial branches of government; the independent establishments
148 of the state, counties, municipalities, districts, authorities,
149 boards, or commissions; or any agencies that are subject to
150 chapter 286. The term does not include an educational
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151 institution as defined in s. 381.00319.
152 (g) "Messenger ribonucleic acid vaccine" means any vaccine
153 that uses laboratory-produced messenger ribonucleic acid to
154 trigger the human body's immune system to generate an immune
155 response.
156 (3)(a)(1) A business entity, as defined in s. 768.38 to
157 include any business operating in this state, may not require
158 any person patrons or customers to provide any documentation
159 certifying COVID-19 vaccination with any vaccine defined under
160 subsection (2) or postinfection recovery from COVID-19, or
161 require a COVID-19 test, to gain access to, entry upon, or
162 service from the business operations in this state or as a
163 condition of contracting, hiring, promotion, or continued
164 employment with the business entity.
165 (b) A business entity may not discharge or refuse to hire
166 a person; deprive or attempt to deprive a person of employment
167 opportunities; adversely affect a person's status as an employee
168 or as an applicant for employment; or otherwise discriminate
169 against a person based on knowledge or belief of the person's
170 status relating to vaccination with any vaccine defined under
171 subsection (2) or COVID-19 postinfection recovery, or a person's
172 failure to take a COVID-19 test.
173 (c) For matters relating to vaccines other than those
174 defined under subsection (2), a business entity shall provide
175 for exemptions and reasonable accommodations for religious and
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176 medical reasons in accordance with federal law This subsection
177 does not otherwise restrict businesses from instituting
178 screening protocols consistent with authoritative or controlling
179 government-issued guidance to protect public health.
180 (4)(a)(2) A governmental entity as defined in s. 768.38
181 may not require any person persons to provide any documentation
182 certifying COVID-19 vaccination with any vaccine defined under
183 subsection (2) or postinfection recovery from COVID-19, or
184 require a COVID-19 test, to gain access to, entry upon, or
185 service from the governmental entity's operations in this state
186 or as a condition of contracting, hiring, promotion, or
187 continued employment with the governmental entity.
188 (b) A governmental entity may not discharge or refuse to
189 hire a person; deprive or attempt to deprive a person of
190 employment opportunities; adversely affect a person's status as
191 an employee; or otherwise discriminate against a person based on
192 the knowledge or belief of the person's status relating to
193 vaccination with any vaccine defined under subsection (2) or a
194 person's failure to take a COVID-19 test.
195 (c) For matters relating to vaccines other than those
196 defined under subsection (2), a governmental entity shall
197 provide for exemptions and reasonable accommodations for
198 religious and medical reasons in accordance with federal law .
199 (5)(a) A business entity or governmental entity may not
200 require a person to wear a face mask, a face shield, or any
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201 other facial covering that covers the mouth and nose. A business
202 entity or governmental entity may not deny any person access to,
203 entry upon, service from, or admission to such entity or
204 otherwise discriminate against a person based on such person's
205 refusal to wear a face mask, a face shield, or any other facial
206 covering that covers the mouth and nose.
207 (b) Paragraph (a) does not apply to:
208 1. A health care provider or health care practitioner as
209 those terms are defined in s. 408.824, provided that such health
210 care provider or health care practitioner is in compliance with
211 that section.
212 2. A business entity or governmental entity when a face
213 mask, a face shield, or any other facial covering that covers
214 the mouth and nose is required safety equipment consistent with
215 occupational or laboratory safety requirements, in accordance
216 with standards adopted by the Department of Health. The
217 Department of Health shall adopt emergency rules to develop such
218 standards. Emergency rules adopted under this subparagraph are
219 exempt from s. 120.54(4)(c) and shall remain in effect until
220 replaced by rules adopted under the nonemergency rulemaking
221 procedures of the Administrative Procedure Act This subsection
222 does not otherwise restrict governmental entities from
223 instituting screening protocols consistent with authoritative or
224 controlling government-issued guidance to protect public health.
225 (3) An educational institution as defined in s. 768.38 may
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226 not require students or residents to provide any documentation
227 certifying COVID-19 vaccination or postinfection recovery for
228 attendance or enrollment, or to gain access to, entry upon, or
229 service from such educational institution in this state. This
230 subsection does not otherwise restrict educational institutions
231 from instituting screening protocols consistent wit h
232 authoritative or controlling government-issued guidance to
233 protect public health.
234 (6)(a)(4) The department may impose an administrative a
235 fine not to exceed $5,000 for each individual and separate per
236 violation of this section.
237 (b) For purposes of conducting an investigation or a
238 proceeding, the department may administer oaths, take
239 depositions, make inspections when authorized by law, issue
240 subpoenas supported by affidavit, serve subpoenas and other
241 process, and compel the attendance of witnesses and the
242 production of books, papers, documents, and other evidence.
243 Challenges to and enforcement of subpoenas or orders shall be in
244 accordance with s. 120.569.
245 (c) Fines collected pursuant to this section must be
246 deposited into the General Revenue Fund.
247 (7) This section does not limit the right of the person
248 aggrieved by a violation of this section to recover damages or
249 other relief under any other applicable law.
250 (8) If a governmental entity fails to comply with
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251 subsection (4), an employee terminated based on such
252 noncompliance may be eligible for reemployment assistance under
253 chapter 443 in addition to any other remedy available to the
254 employee for a violation of this section.
255 (5) This section does not apply to a health care provider
256 as defined in s. 768.38; a service provider licensed or
257 certified under s. 393.17, part III of chapter 401, or part IV
258 of chapter 468; or a provider with an active health care clinic
259 exemption under s. 400.9935.
260 (9)(6) The department may adopt rules pursuant to ss.
261 120.536 and 120.54 to implement this section.
262 Section 2. Section 381.00319, Florida Statutes, is amended
263 to read:
264 381.00319 Prohibition on mask mandates and COVID-19
265 vaccination and testing mandates for educational institutions
266 students.—
267 (1) For purposes of this section, the term:
268 (a) "COVID-19" has the same meaning as in s. 381.00316
269 381.00317(1).
270 (b) "COVID-19 vaccine" has the same meaning as in s.
271 381.00316.
272 (c) "Educational institution" means a public or private
273 school, including a preschool, elementary school, middle school,
274 junior high school, secondary school, career center, or
275 postsecondary school has the same meaning as in s. 112.0441(1).
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276 (d) "Emergency use authorization vaccine″ has the same
277 meaning as in s. 381.00316.
278 (e) "Messenger ribonucleic acid vaccine" has the same
279 meaning as in s. 381.00316.
280 (c) "Parent" has the same meaning as in s. 1000.21(5).
281 (2)(a) Notwithstanding any other law to the contrary, An
282 educational institution or elected or appointed local official
283 may not impose a COVID-19 vaccination mandate on for any person
284 requiring vaccination with any vaccine defined under subsection
285 (1) student.
286 (b) An educational institution may not require any person
287 to provide any documentation certifying vaccination with any
288 vaccine defined under subsection (1) or postinfection recovery
289 from COVID-19, or require a COVID-19 test, to gain admission or
290 access to, entry upon, or service from the educational
291 institution in this state or as a condition of contracting,
292 hiring, promotion, or continued employment with the educational
293 institution. An educational institution may not discharge or
294 refuse to hire a person; deprive or attempt to deprive a person
295 of employment opportunities; adversely affect a person's status
296 as an employee or as an applicant for employment; or otherwise
297 discriminate against a person based on knowledge or belief of
298 the person's status relating to vaccination with any vaccine
299 defined under subsection (1) or COVID-19 postinfection recovery,
300 or a person's failure to take a COVID-19 test.
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301 (c) For matters relating to vaccines other than those
302 defined under subsection (1), an educational institution shall
303 provide for exemptions and reasonable accommodations for
304 religious and medical reasons in accordance with federal law.
305 (3)(a) An educational institution may not require a person
306 to wear a face mask, a face shield, or any other facial covering
307 that covers the mouth and nose. An educational institution may
308 not deny any person access to, entry upon, service fr om, or
309 admission to such educational institution or otherwise
310 discriminate against a person based on such person's refusal to
311 wear a face mask, a face shield, or any other facial covering
312 that covers the mouth and nose.
313 (b) Paragraph (a) does not apply to:
314 1. A health care provider or health care practitioner as
315 those terms are defined in s. 408.824, provided such health care
316 provider or health care practitioner is in compliance with that
317 section.
318 2. An educational institution when a face mask, a face
319 shield, or any other facial covering that covers the mouth and
320 nose is used as required safety equipment in a course of study
321 consistent with occupational or laboratory safety requirements,
322 in accordance with standards adopted by the Department of
323 Health. The Department of Health shall adopt emergency rules to
324 develop such standards. Emergency rules adopted under this
325 subparagraph are exempt from s. 120.54(4)(c) and shall remain in
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326 effect until replaced by rules adopted under the nonemergency
327 rulemaking procedures of the Administrative Procedure Act.
328 (4)(a) Notwithstanding s. 768.39, the Department of Health
329 may impose an administrative fine not to exceed $5,000 for each
330 individual and separate violation of this section.
331 (b) For the purpose of conducting an investigation or a
332 proceeding, the Department of Health may administer oaths, take
333 depositions, make inspections when authorized by law, issue
334 subpoenas supported by affidavit, serve subpoenas and other
335 process, and compel the attendance of witnesses and the
336 production of books, papers, documents, and other evidence.
337 Challenges to and enforcement of subpoenas or orders shall be in
338 accordance with s. 120.569.
339 (c) Fines collected pursuant to this section must be
340 deposited in the General Revenue Fund.
341 (5) This section does not limit the right of the person
342 aggrieved by a violation of this section to recover damages or
343 other relief under any other applicable law.
344 (6) The Department of Health may adopt rules to implement
345 this section.
346 (3) A parent of a student, a student who is an emancipated
347 minor, or a student who is 18 years of age or older may bring an
348 action against the educational institution to obtain a
349 declaratory judgment that an act or practice violates this
350 section and to seek injunctive relief. A prevailing parent or
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351 student, as applicable, must be awarded reasonable attorney fees
352 and court costs.
353 (4) This section expires June 1, 2023.
354 Section 3. Section 381.00321, Florida Statutes, is created
355 to read:
356 381.00321 International health organization policies.—A
357 governmental entity as defined in s. 381.00316 or an educational
358 institution as defined in s. 381.00319 may not adopt, implement,
359 or enforce an international health organization's public health
360 policies or guidelines unless authorized to do so under state
361 law, rule, or executive order issued by the Governor under s.
362 252.36.
363 Section 4. Section 395.1057, Florida Statutes, is created
364 to read:
365 395.1057 Patients' right to choose COVID-19 treatment
366 alternatives.—A hospital may not interfere with a patient's
367 right to choose COVID-19 treatment alternatives as recommended
368 by a health care practitioner with privileges at the hospital if
369 the health care practitioner has obtained informed consent from
370 the patient in accordance with s. 456.62. Any hospital that
371 violates this section by preventing a health care practitioner
372 from exercising his or her sound judgment is subject to agency
373 disciplinary action under s. 395.1065(2).
374 Section 5. Effective upon this act becoming a law, section
375 408.824, Florida Statutes, is created to read:
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376 408.824 Facial covering requirements for health care
377 practitioners and health care providers.—
378 (1) As used in this section, the term:
379 (a) "Department" means the Department of Health.
380 (b) "Facial covering" means a cloth or surgical face mask,
381 a face shield, or any other facial covering that covers the
382 mouth and nose.
383 (c) "Health care practitioner" has the same meaning as in
384 s. 456.001.
385 (d) "Health care provider" means a provider as defined in
386 s. 408.803; a service provider licensed or certified under s.
387 393.17, part III of chapter 401, or part IV of chapter 468; a
388 provider with an active health care clinic exemption under s.
389 400.9935; an optical establishment permitted under s. 484.007; a
390 massage establishment licensed under s. 480.043; a pharmacy as
391 defined in s. 465.003; or an office registered under s. 458.328
392 or s. 459.0138.
393 (e) "Office" means an office maintained for the practice
394 of a health care practitioner's profession, as provided in his
395 or her practice act.
396 (2)(a) By July 1, 2023, the agency and the department
397 shall jointly develop standards for the appropriate use of
398 facial coverings for infection control in health care settings.
399 (b) The agency and the department shall adopt emergency
400 rules for the standards developed under paragraph (a). Emergency
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401 rules adopted under this section are exempt from s. 120.54(4)(c)
402 and shall remain in effect until replaced by rules adopted under
403 the nonemergency rulemaking procedures of the Administrative
404 Procedure Act.
405 (c) The agency and the department shall publish the
406 standards developed under paragraph (a) on their respective
407 websites and provide a link for persons to report violations of
408 the standards.
409 (3) By August 1, 2023, each health care practitioner who
410 owns or operates an office and each health care provider shall
411 establish facial covering policies and procedures for their
412 respective health care settings, if such health care
413 practitioner or health care provider requires any individual to
414 wear a facial covering for any reason. Such policies and
415 procedures must comply with the standards developed under
416 subsection (2) and must be accessible from the home page of such
417 health care practitioner's or health care provider's website or
418 conspicuously displayed in the lobby of its health care service
419 setting or settings.
420 (4) Effective August 1, 2023:
421 (a) Health care practitioners and health care providers
422 may not require any person to wear a facial covering for any
423 reason unless the requirement is in accordance with the
424 standards developed under subsection (2) and the policies and
425 procedures established under subsection (3).
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426 (b) A health care practitioner or a health care provider
427 in violation of paragraph (a) or subsection (3) is subject to
428 disciplinary action by the agency or a board as defined in s.
429 456.001, or the department if there is no board, as applicable.
430 Section 6. Section 456.62, Florida Statutes, is created to
431 read:
432 456.62 Communication of COVID-19 treatment alternatives.—
433 (1) A health care practitioner treating a patient
434 diagnosed with COVID-19 shall obtain the informed consent of the
435 patient or the patient's legal representative before prescribing
436 any medication for the treatment of COVID-19.
437 (2) To obtain informed consent, the health care
438 practitioner must provide an explanation of alternative
439 medications for the treatment of COVID-19 and the relative
440 advantages, disadvantages, and risks associated with such
441 alternative medications to the extent necessary to allow the
442 patient or the patient's legal representative to make a prudent
443 decision regarding treatment.
444 (3) In determining which alternative medications to
445 present to a patient for purposes of obtaining informed consent,
446 the health care practitioner must include any medications
447 currently authorized or approved by the United States Food and
448 Drug Administration for the treatment of COVID-19 and use his or
449 her best clinical judgment to identify any alternative
450 medications that could reasonably be expected to benefit the
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451 patient.
452 (4) In providing such information regarding alternative
453 medications, the health care practitioner shall take into
454 consideration the physical state of the patient and the
455 patient's ability to understand the information.
456 (5) A health care practitioner treating a patient
457 diagnosed with COVID-19 shall indicate on such patient's medical
458 record the health care practitioner's compliance or
459 noncompliance with this section.
460 (6) This section does not supersede any other provision of
461 law regarding informed consent.
462 Section 7. Section 465.0266, Florida Statutes, is amended
463 to read:
464 465.0266 Common database.—Nothing contained in this
465 chapter may shall be construed to prohibit the dispensing by a
466 pharmacist licensed in this state or another state of a
467 prescription contained in a common database, and such dispensing
468 does shall not constitute a transfer as defined in s.
469 465.026(1)-(6), provided that the following conditions are met:
470 (1) All pharmacies involved in the transactions pursuant
471 to which the prescription is dispensed are under common
472 ownership and utilize a common database.
473 (2) All pharmacies involved in the transactions pursuant
474 to which the prescription is dispensed and all pharmacists
475 engaging in dispensing functions are properly licensed,
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476 permitted, or registered in this state or another state.
477 (3) The common database maintains a record of all
478 pharmacists involved in the process of dispensing a
479 prescription.
480 (4) The owner of the common database maintains a policy
481 and procedures manual that governs its participating pharmacies,
482 pharmacists, and pharmacy employees and that is available to the
483 board or its agent upon request. The policy and procedures
484 manual must shall include the following information:
485 (a) A best practices model detailing how each pharmacy and
486 each pharmacist accessing the common database will comply with
487 applicable federal and state laws, rules, and regulations.
488 (b) The procedure for maintaining appropriate record s for
489 regulatory oversight for tracking a prescription during each
490 stage of the filling and dispensing process, identifying the
491 pharmacists involved in filling and dispensing the prescription
492 and counseling the patient, and responding to any requests for
493 information made by the board under s. 465.0156.
494 (c) The policy and procedure for providing adequate
495 security to protect the confidentiality and integrity of patient
496 information.
497 (d) A quality assurance program designed to objectively
498 and systematically monitor, evaluate, and improve the quality
499 and appropriateness of patient care through the use of the
500 common database.
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501
502 Any pharmacist dispensing a prescription has at all times the
503 right and obligation to exercise his or her independent
504 professional judgment. Any pharmacist properly dispensing an
505 alternative medication prescribed for the treatment of COVID -19
506 is not subject to disciplinary action by the board or the
507 department based solely on such dispensing. Notwithstanding
508 other provisions in this section, a no pharmacist licensed in
509 this state participating in the dispensing of a prescription
510 pursuant to this section is not shall be responsible for the
511 acts and omissions of another person participating in the
512 dispensing process provided such person is not under the direct
513 supervision and control of the pharmacist licensed in this
514 state.
515 Section 8. Paragraph (n) of subsection (3) of section
516 1002.20, Florida Statutes, is amended to read:
517 1002.20 K-12 student and parent rights.—Parents of public
518 school students must receive accurate and timely information
519 regarding their child's academic progress and must be informed
520 of ways they can help their child to succeed in school. K-12
521 students and their parents are afforded numerous statutory
522 rights including, but not limited to, the following:
523 (3) HEALTH ISSUES.—
524 (n) Face covering mandates and quarantine mandates in
525 response to COVID-19.—
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526 1. A district school board, a district school
527 superintendent, an elected or appointed local official, or any
528 district school board employee may not:
529 a. Require a student to wear a face mask, a face shield,
530 or any other facial covering that fits over the mouth or nose.
531 However, a parent, at the parent's sole discretion, may allow
532 his or her child to wear a face mask, a face shield, or any
533 other facial covering that fits over the mouth or nose. This
534 prohibition does not apply to safety equipment required as part
535 of a course of study consistent with occupational or laboratory
536 safety requirements.
537 b. Prohibit a student from attending school or school-
538 sponsored activities, prohibit a student from being on school
539 property, or subject a student to restrictions or disparate
540 treatment, based on an exposure to COVID-19, so long as the
541 student remains asymptomatic and has not received a positive
542 test for COVID-19 as defined in s. 381.00319(1) s. 381.00317(1).
543
544 A parent of a student, a student who is an emancipated minor, or
545 a student who is 18 years of age or older may bring an action
546 against the school district to obtain a declaratory judgment
547 that an act or practice violates this subparagraph and to seek
548 injunctive relief. A prevailing parent or student, as
549 applicable, must be awarded reasonable attorney fees and court
550 costs.
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551 2. A district school board, a district school
552 superintendent, an elected or appointed local official, or any
553 school district employee may not prohibit an employee from
554 returning to work or subject an employee to restrictions or
555 disparate treatment based on an exposure to COVID-19 so long as
556 the employee remains asymptomatic and has not received a
557 positive test for COVID-19 as defined in s. 381.00319(1) s.
558 381.00317(1).
559 3. This paragraph expires June 1, 2023.
560 Section 9. Sections 381.00316(2)(g) and 381.00319(1)(e),
561 Florida Statutes, as created by this act, are repealed on June
562 1, 2025.
563 Section 10. Except as otherwise provided in this act, and
564 except for this section, which shall take effect upon this act
565 becoming a law, this act shall take effect June 1, 2023.
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HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: PCS for CS/HB 1015 Pub.Rec./ Protection from Discrimination Based on Health Care Choices
SPONSOR(S): Commerce Committee
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Commerce Committee Lloyd Hamon
SUMMARY ANALYSIS
Current law prohibits a private employer from imposing a COVID-19 vaccination mandate for any employee
without providing certain exemptions, or terminating such an employee who refuses to comply. Employees
may file a complaint with Department of Legal Affairs (DLA) within the Office of the Attorney General alleging
violations, for investigation and enforcement. Similarly, current law prohibits private businesses, governmental
entities and educational institutions from requiring a person to document COVID-19 vaccination or post-
infection recovery. The Department of Health (DOH) investigates complaints of violations of this provision.
Current law makes complaint and investigation materials held by DLA confidential and exempt public record
information; there is no public records exemption for similar records held by DOH.
HB 1013, to which this bill is linked, establishes additional prohibitions against businesses, governmental
entities and educational institutions, related to requirements for COVID-19 testing and face masks, and
authorizes DLA and DOH to enforce these provisions.
This bill establishes a public records exemption for complaint and investigation information related to violations
of the new prohibitions established in the linked bill, held by either DLA or DOH. The exemption applies until
the investigation is completed or ceases to be active, after which, the information remains confidential and
exempt if disclosure would jeopardize the integrity of another active investigation, reveal medical information,
or reveal information regarding religious beliefs.
Information made confidential and exempt may be released to another business, governmental entity, or
educational institution in the furtherance of that entity's lawful duties and responsibilities. Additionally, the bill
provides that it does not prohibit the disclosure of information in an aggregated format.
The bill provides a public necessity statement as required by the Florida Constitution. It also provides that the
public record exemption is repealed on October 2, 2028.
The bill has an insignificant negative fiscal impact on the state and no impact on local government.
The bill is effective on the same date as in HB 1013 or similar legislation, which is 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 .
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DATE: 4/23/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Public Records
Article I, s. 24(a) of the Florida Constitution sets forth the state’s public policy regarding access to
government records. This section guarantees every person a right to inspect or copy any public record
of the legislative, executive, and judicial branches of government. The Legislature, however, may
provide by general law for the exemption of records from the requirements of art. I, s. 24(a) of the
Florida Constitution.1 The general law must state with specificity the public necessity justifying the
exemption2 and must be no broader than necessary to accomplish its purpose. 3
Public policy regarding access to government records is addressed further in s. 119.07(1)(a), F.S.,
which guarantees every person a right to inspect and copy any state, county, or municipal record,
unless the record is exempt. Furthermore, the Open Government Sunset Review Act 4 provides that a
public record or public meeting exemption may be created or maintained only if it serves an identifiable
public purpose. In addition, it may be no broader than necessary to meet 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.
Protect trade or business secrets.5
Florida Attorney General and the Department of Legal Affairs
The Attorney General is an elected constitutional officer who serves as the chief state legal officer and
as a member of the cabinet.6 The Attorney General must perform the duties prescribed by the Florida
Constitution and any other duties appropriate to his or her office as may from time to time be required
of the Attorney General by law or by resolution of the Legislature. 7
The Attorney General is the head of the Department of Legal Affairs (DLA), 8 which
is responsible for providing all legal services required by any department, unless otherwise provided by
law,9 including defending the state in civil litigation cases; representing the people of Florida in criminal
appeals in state and federal courts; protecting the rights of children, consumers, and victims through its
various protection programs; and investigating and litigating against businesses that seek to limit
competition and defraud taxpayers.10
1 Article I, s. 24(c), FLA. C ONST.
2 This portion of a public record exemption is commonly referred to as a “public necessity statement.”
3 Article I. s. 24(c), FLA. C ONST.
4 S. 119.15, F.S.
5 S. 119.15(6)(b), F.S.
6 Art. IV, s. 4, FLA. C ONST.
7 See s. 16.01(2), F.S.
8 S. 20.11, F.S.
9 S. 16.015, F.S.
10 OPPAGA, Office of the Attorney General (Department of Legal Affairs),
https://oppaga.fl.gov/ProgramSummary/ProgramDetail?programNumber=1026 (last visited Nov. 8, 2021).
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Department of Health
The Department of Health (DOH) is established under s. 20.43, F.S., to “protect and promote the health
of all residents and visitors in the state through organized state and community efforts, including
cooperative agreements with counties”. The head of DOH is the Surgeon General, also designated as
the State Health Officer. DOH also administers state epidemiology functions, and is required to identify,
diagnose, and conduct surveillance of diseases and health conditions in the state and accumulate the
health statistics necessary to establish trends. As part of those functions, DOH maintains vital statistics
and other health data, including vaccination information. Current law also requires DOH to conduct a
communicable disease prevention and control program as part of fulfilling its public health mission. 11
COVID-19 Vaccination Mandate Investigations
Private Business Prohibition
Section 381.00317, F.S., generally prohibits businesses from requiring any employee or contracted
worker to be vaccinated for COVID-19. This prohibition applies to any form of corporation, partnership,
association, cooperative, joint venture, business trust, or sole proprietorship that conducts business in
this state, and any charitable organization.
Businesses can require employee vaccination, if they allow the employees to opt out of vaccination for
these or any other reasons:
for medical or religious reasons;
based on immunity to COVID-19;
if the employee agrees to periodic testing; or
if the employee uses employer-provided personal protective equipment (PPE).
The statute lays out specific criteria for claiming each of the above exemptions, and requires employers
to use DOH forms for employees to submit statements of exemption.
Enforcement
This prohibition is enforced by the Department of Legal Affairs (DLA) within the Office of the Attorney
General. Employees may file complaints with DLA, which investigates them. DLA must offer the
employer the opportunity to comply with the law. However, DLA is required to fine an employer who
violates this prohibition and terminates an employee due to a vaccination mandate: up to $10,000 per
violation for employers with under 100 employees; and up to $50,000 per violation for employers with
100 or more employees. The statute authorizes the Attorney General to consider various factors and
mitigating circumstances when determining the amount of the fine.
Since enactment, DLA has received 927 complaints, the majority of which were closed due to lack of a
statutory violation. DLA found probable cause for nine complaints, and filed a single administrative
complaint against an employer.12
Public Records Exemption
Section 381.00318, F.S., provides a public records exemption for information related to vaccination
mandate investigation of a private business. All such information is both confidential and exempt from
disclosure during an active investigation, and remains so when the investigation is no longer active if
the disclosure, as determined by the Attorney General, would jeopardize another, active, investigation,
or result in certain harms to the complaining employee.
Documentation of COVID-19 Vaccination or Post-Infection Recovery
11 2 S. 381.003, F.S. A communicable disease is any disease caused by transmission of a specific infectious agent, or its toxic
products, from an infected person, an infected animal, or the environment to a susceptible host, either directly or indirectly.
12 Department of Legal Affairs, email to committee staff from Libby Guzzo, Legislative Affairs Director, Feb. 7, 2023 (on file w ith
committee staff).
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Section 381.00316, F.S., prohibits business, governmental entities and educational institutions from
requiring customers, persons seeking access to government operations, and students or residents,
respectively, from requiring documentation of COVID-19 vaccination or post-infection recovery.
This provision is enforced by DOH, which is authorized to impose a fine up to $5,000 for each incident.
Face Masks
Section 1002.20(1)(n), F.S., prohibits public schools from requiring a student to wear a face mask,
other than when required by occupational or laboratory safety standards.
This provision is enforced by private actions for declaratory and injunctive relief by parents or adult
students.
Current law does not prohibit face mask requirements by private businesses or governmental entities.
House Bill 1013 (2023)
The HB 1013, to which this bill is linked, adds to current COVID-19-related prohibitions on private
businesses, governmental entities, and educational institutions, and expands enforcement functions.
That bill prohibits private businesses, governmental entities, and educational institutions from imposing
requirements to take a COVID-19 test or wear a facial covering as a condition of accessing the
business or governmental or educational services.
That bill prohibits businesses and governmental entities from refusing to hire, terminating, or adversely
affecting a person’s status as an employee or applicant, or otherwise discriminate in any way against a
person for failing to comply with a prohibited requirement.
That bill authorizes DLA to enforce these provisions against private businesses and governmental
entities, authorizes DOH to enforce these provisions against educational institutions, and moves
enforcement from DOH to DLA to enforce the current law prohibition against requiring documentation of
COVID-19 vaccination or post-infection recovery against all three types of entities.
That bill expands current ss. 381.00316 and 381.00319, F.S., for these purposes.
Effect of the Bill
This bill, which is linked to the passage of HB 1013 (2023), amends s. 381.00318 to create a public
records exemption for records related to violations of ss. 381.00316 and 381.00319, F.S., as amended
by HB 1013 or similar legislation.
Specifically, the bill makes records related to violations of s. 381.00316, F.S., or s. 381.00319, F.S., by
business entities, governmental entities and educational institutions, held by DLA or DOH, confidential
and exempt. The exemptions and confidentiality applies to complaints and investigation records related
to testing and mask mandates, vaccination or post-infection recovery status, and COVID-19-related
discrimination.
Provisions in the current public records exemption applicable to investigations of violations of s.
381.00017, F.S., will apply to this new exemption. The complaint and investigative information are
confidential and exempt13 from public records requirements until the investigation is completed or
13 There is a difference between records the Legislature designates exempt from public records requirements and those the Legislature
deems confidential and exempt. A record classified as exempt from public disclosure may be disclosed under certain circumstan ces.
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 released by the
custodian of public records to anyone other than the persons or entities specifically designated in statute. See Op. Att’y Gen. Fla. 04-09
(2004).
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ceases to be active. For purposes of the public record exemption, an investigation is considered
“active” while such investigation is being conducted by DLA with a reasonable, good faith, belief that it
may lead to a determination of whether there was a violation of either s. 381.00316 or s. 381.00319,
F.S. An investigation does not cease to be active if DLA is proceeding with reasonable dispatch and
there is a good faith belief that action may be initiated by DLA.
After an investigation is completed or ceases to be active, information relating to the investigation
remains confidential and exempt from public records requirements if disclosure of that information
would jeopardize the integrity of another active investigation, reveal medical information about an
employee, or reveal information regarding an employee’s religious beliefs.
Information made confidential and exempt may be released to another governmental entity in the
furtherance of that entity's lawful duties and responsibilities. In addition, the bill provides that it does not
prohibit the disclosure of information in an aggregated format.
The bill also provides a public necessity statement as required by art. I, s. 24(c) of the Florida
Constitution. In part, the public necessity statement provides that protection of the complaint or
investigative information
is required to safeguard an individual's private information regarding medical
information or religious beliefs and to ensure the integrity of an active
investigation [….]
Lastly, the bill provides that the public record exemption repeals on October 2, 2028.
The bill is effective on the same date that HB 1013 or similar legislation takes effect in the same
legislative session.
B. SECTION DIRECTORY:
Section 1: Amending s. 381.00318, F.S., relating to complaints and investigations regarding
COVID-19 vaccination mandates; public records exemption.
Section 2: Provides a public necessity statement as required by the Florida Constitution.
Section 3: Provides a contingent effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
The bill could have an insignificant negative fiscal impact on DLA and DOH staff for training and
complying with the newly-created public record exemption. These costs, however, would be
absorbed, as they are part of the day-to-day responsibilities of DLA and DOH.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
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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:
Vote Requirement
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.
Public Necessity Statement
Article I, s. 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.
Breadth of Exemption
Article I, s. 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 record exemption for an employee complaint alleging a private
employer’s violation of state law regarding such employer’s COVID-19 vaccination policies or
practices, and all information relating to an investigation of such complaint, until the investigation is
completed or ceases to be active. As such, the public record exemption does not appear to be
broader than necessary to accomplish its stated purpose.
B. RULE-MAKING AUTHORITY:
The bill does not confer rulemaking authority nor require rulemaking.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
PCS for CS/HB 1015 2023
1 A bill to be entitled
2 An act relating to public records; amending s.
3 381.00318, F.S.; providing an exemption from public
4 records requirements for certain information held by
5 the Department of Legal Affairs and the Department of
6 Health; authorizing the disclosure of such information
7 under certain circumstances; providing for future
8 legislative review and repeal of the exemption;
9 providing a statement of public necessity; providing a
10 contingent effective date.
11
12 Be It Enacted by the Legislature of the State of Florida:
13
14 Section 1. Section 381.00318, Florida Statutes, is amended
15 to read:
16 381.00318 Complaints and investigations regarding private
17 employer COVID-19 vaccination and testing and facial covering
18 mandates; public records exemption.—
19 (1)(a) An employee complaint alleging a private employer's
20 violation of s. 381.00317 regarding employer COVID-19
21 vaccination policies or practices, and all information relating
22 to an investigation of such complaint, held by the Department of
23 Legal Affairs is confidential and exempt from s. 119.07(1) and
24 s. 24(a), Art. I of the State Constitution until the
25 investigation is completed or ceases to be active. For purposes
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26 of this subsection section, an investigation is considered
27 "active" while such investigation is being conducted by the
28 department with a reasonable good faith belief that it may lead
29 to a determination of whether there was a violation of s.
30 381.00317. An investigation does not cease to be active if the
31 department is proceeding with reasonable dispatch and there is a
32 good faith belief that action may be initiated by the
33 department.
34 (b)(2) After an investigation is completed or ceases to be
35 active, information in records relating to the investigation
36 remains confidential and exempt from s. 119.07(1) and s. 24(a),
37 Art. I of the State Constitution if disclosure of that
38 information would do any of the following:
39 1.(a) Jeopardize the integrity of another active
40 investigation.
41 2.(b) Reveal medical information about an employee.
42 3.(c) Reveal information regarding an employee's religious
43 beliefs.
44 (c)(3) Information made confidential and exempt under this
45 subsection section may be released to another governmental
46 entity in the furtherance of that entity's lawful duties and
47 responsibilities.
48 (d)(4) This subsection section does not prohibit the
49 disclosure of information in an aggregated format.
50 (e)(5) This subsection section shall stand repealed on
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51 October 2, 2023.
52 (2)(a) A complaint alleging a business entity's, a
53 governmental entity's, or an educational institution's violation
54 of s. 381.00316 or s. 381.00319, and all information relating to
55 an investigation of such complaint, held by the Department of
56 Legal Affairs or the Department of Health is confidential and
57 exempt from s. 119.07(1) and s. 24(a), Art. I of the State
58 Constitution until the investigation is completed or ceases to
59 be active. For purposes of this subsection, an investigation is
60 considered "active" while such investigation is being conducted
61 by the Department of Legal Affairs or the Department of Health
62 with a reasonable good faith belief that it may lead to a
63 determination of whether there was a violation of s. 381.00316
64 or s. 381.00319. An investigation does not cease to be active if
65 the Department of Legal Affairs or the Department of Health is
66 proceeding with reasonable dispatch and there is a good faith
67 belief that action may be initiated by the Department of Legal
68 Affairs or the Department of Health.
69 (b) After an investigation is completed or ceases to be
70 active, information in records relating to the investigation
71 remains confidential and exempt from s. 119.07(1) and s. 24(a),
72 Art. I of the State Constitution if disclosure of that
73 information would do any of the following:
74 1. Jeopardize the integrity of another active
75 investigation.
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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
PCS for CS/HB 1015 2023
76 2. Reveal medical information about an individual.
77 3. Reveal information regarding an individual's religious
78 beliefs.
79 (c) Information made confidential and exempt under this
80 subsection may be released to another governmental entity in the
81 furtherance of that entity's lawful duties and responsibilities.
82 (d) This subsection does not prohibit the disclosure of
83 information in an aggregated format.
84 (e) This subsection is subject to the Open Government
85 Sunset Review Act in accordance with s. 119.15 and shall stand
86 repealed on October 2, 2028, unless reviewed and saved from
87 repeal through reenactment by the Legislature.
88 Section 2. The Legislature finds that it is a public
89 necessity that a complaint alleging a business entity's, a
90 governmental entity's, or an educational institution's violation
91 of s. 381.00316, Florida Statutes, or s. 381.00319, Florida
92 Statutes, and all information relating to an investigation of
93 such complaint, held by the Department of Legal Affairs or the
94 Department of Health be made confidential and exempt from s.
95 119.07(1), Florida Statutes, and s. 24(a), Article I of the
96 State Constitution until the investigation is completed or
97 ceases to be active. The Legislature further finds that it is a
98 public necessity to maintain the confidential and exempt status
99 of information that would jeopardize the integrity of another
100 active investigation, reveal medical information about an
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PCS for CS/HB 1015 2023
101 individual, or reveal information regarding an individual's
102 religious beliefs after an investigation is completed or ceases
103 to be active. Protection of such information is required to
104 safeguard an individual's private information regarding medical
105 information or religious beliefs and to ensure the integrity of
106 an active investigation, if applicable.
107 Section 3. This act shall take effect on the same date
108 that HB 1013 or similar legislation takes effect, if such
109 legislation is adopted in the same legislative session or an
110 extension thereof and becomes a law.
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PCS for HB 1617
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: PCS for HB 1617 Immigration
SPONSOR(S): Commerce Committee
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Commerce Committee Thompson Hamon
SUMMARY ANALYSIS
Florida law requires state and local law enforcement entities to cooperate and assist the federal government in
the enforcement of federal immigration laws, provides criminal penalties for human smuggling into the state,
and provides employment verification requirements for public and private employers.
The bill, in part:
Beginning July 1, 2023, requires private employers, with 25 or more employees, to use E-Verify for new
employees.
Expands violations and penalties related to human smuggling when smuggling a minor, more than five
people, or when a defendant has a prior conviction for human smuggling, and allows prosecution of
human smuggling under the Florida Racketeer Influenced and Corrupt Organization (RICO) Act.
Prohibits a county or municipality from providing funds to issue community ID cards for individuals who
are not lawfully in the country.
Invalidates driver’s licenses that are exclusively issued by another state to undocumented immigrants,
and requires the Department of Highway Safety and Motor Vehicles (DHSMV) to issue citations and
maintain a list of out of state classes of driver licenses that are invalid.
Removes the authority for unauthorized immigrants to be admitted to the Florida Bar, effective
November 1, 2028.
Requires persons who are in the custody of a law enforcement agency and subject to an immigration
detainer to submit DNA to the statewide DNA database.
Requires hospitals that accept Medicaid to collect immigration status data related to admissions and
emergency room visits and report to the Agency of Health Care Administration (AHCA).
For the 2023-2024 fiscal year, provides a $12 million nonrecurring appropriation to the Division of
Emergency Management for the Unauthorized Alien Transport Program.
The bill has a negative fiscal impact on state and local government, and the private sector.
The effective date of the bill is July 1, 2023, except as otherwise expressly provided.
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
Immigration Laws
The Federal Government establishes and enforces immigration laws. The federal Immigration and
Nationality Act (INA) contains many of the most important provisions of immigration law.1
The Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE),
Enforcement and Removal Operations, is responsible for enforcing the immigration laws and
identifying, apprehending, and removing aliens who are a risk to national security or public safety, who
are in the country illegally, or who undermine the integrity of the country’s immigration laws or border
control efforts.2
U.S. Customs and Border Protection (Border Patrol) is the federal law enforcement agency responsible
for securing the nation’s borders and facilitating international travel and trade. The Border Patrol’s top
priority is to keep terrorists and their weapons from entering the United States.
In 2020, The Border Patrol had 646,822 enforcement actions. In 2021, that total increased to over 1.9
million actions, an increase of over 200 percent. The Border Patrol’s total enforcement actions in 2022
was about 2.8 million, another 41 percent increase, and to date for 2023, the total is already over 1
million.
These statistics include individuals “encountered at ports of entry who are seeking lawful admission into
the United States but are determined to be inadmissible, individuals presenting themselves to seek
humanitarian protection under our laws, and individuals who withdraw an application for admission and
return to their countries of origin within a short timeframe.” The total also includes encounters that led to
apprehensions or expulsions, including individuals who were physically controlled or temporarily
detained due to being unlawfully present in the United States. 3
In addition to the dramatic increase in border encounters, the recidivism rate has also increased.
According to the Border Patrol webpage, “recidivism refers to percentage of individuals apprehended
more than one time by the Border Patrol within a fiscal year.” In 2019, the rate was only 7 percent.
However, that climbed to an increase of 26 percent in 2020 and 27 percent in 2021. 4
Encounters with criminal noncitizens in 2020 were 9,447, in 2021 were 17,330, in 2022 were 29,021,
and so far in 2023 are 11,785. “Criminal noncitizens refers to noncitizens who have been convicted of
crime, whether in the United States or abroad, so long as the conviction is for conduct which is deemed
criminal by the United States.”5
Governor’s Executive Orders on Immigration
The Governor has issued two Executive Orders attempting to address the enforcement of immigration
1 8 U.S.C. §§ -1401 Suppl. 2 1964.
2 U.S. Immigration and Customs Enforcement, Enforcement and Removal Operations, Mission, https://www.ice.gov/ero (last visited
Mar. 21, 2023).
3 U.S. Customs and Border Protection, CBP Enforcement Statistics Fiscal Year 2023, https://www.cbp.gov/newsroom/stats/cbp-
enforcement-statistics (last visited Mar. 21, 2023).
4 Id.
5 Id.
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laws and the immigration crisis the state has on its borders.6
On September 28, 2021, the Governor issued Executive Order No. 21-223, Biden Border Crisis.
Finding that the detrimental effects of an unsecured southwest border of the United States would
reverberate beyond border states, including increased crime, such as drug trafficking and human
trafficking and smuggling, diminished economic opportunities for American workers, and stresses on
education and healthcare systems. The order prohibited state agencies from assisting with the
transport of aliens apprehended at the southwest border into Florida, and required state agencies to
use the federal Systematic Alien Verification for Entitlements (SAVE) program to confirm the eligibility
of persons before providing any funds, resources, or other benefits.
Specifically, the executive order:
Directs the Florida Department of Law Enforcement (FDLE) and the Florida Highway Patrol
(FHP) to determine on an ongoing basis the number and identities of all illegal aliens 7 whom the
DHS, as well as any other federal departments or agencies, federal contractors, or affiliated
non-governmental organizations, transport to Florida and to detain any aircraft, bus, or other
vehicle used to transport illegal aliens to the state in the commission of a state offense,
including state laws against human trafficking.
Requests state attorneys and statewide prosecutor to report monthly to the Governor’s Office
and the FDLE on information related to illegal aliens and crimes, which FDLE was to make
available on its website.
Directs the Agency for Health Care Administration (AHCA), in coordination with the Department
of Children and Families (DCF), the Department of Health (DOH), and county health
departments, to use all lawful means to determine the amount of state and local funds spent on
health care, including emergency care, for illegal aliens each fiscal year. AHCA was also
directed to require managed care plans and hospitals to report any Medicaid or other
governmental expenditures incurred for illegal aliens for each fiscal year beginning in 2021.
Such information was to be made available to the Governor’s Office and posted on the websites
for AHCA and DOH.
Directs DCF to determine the amount and purpose of state funds expended by the department
on illegal aliens for each fiscal year. Such information was to be made available to the
Governor’s Office and posted on the website for the department. The department was also
directed to review resettlement of unaccompanied alien children8 in Florida and make
determinations on resettlement under state laws; to the extent that such resettlement did not
constitute “evidence of need” under Florida law, the department was directed to not grant or
renew licenses to family foster homes, residential child-caring agencies, or child-placing
agencies that applied to house unaccompanied minors and to prohibit these entities from
accepting additional children if they already housed unaccompanied alien children. These
entities were also required, as a part of licensure, to conduct in-person welfare checks on these
children and report to the department, if the department determined that such checks were
permitted by state law.
Directs the FDLE, in consultation with the Attorney General, to conduct regular audits of
businesses in Florida to ensure that businesses were complying with state law to verify the
employment eligibility of new employees. The department was ordered to prioritize audits of
publicly traded corporations or companies with more than 200 employees that operate in
sectors of the economy known for employing illegal aliens. If any violation was found, the
department was to notify the Department of Economic Opportunity (DEO) to take appropriate
action under state law.
Requires any executive agency to report any evidence found of a crime perpetuated by an
illegal alien to the FDLE; and to take all appropriate action under state law, including the
6 See State of Florida, Office of the Governor, Executive Order No. 21-223, September 28, 2021, https://www.flgov.com/wp-
content/uploads/2021/09/EO_21-223.pdf (last visited Mar. 21, 2023), and Executive Order No. 23-03, January 6, 2023,
https://www.flgov.com/wp-content/uploads/2023/01/EO-23-03.pdf (last visited Mar. 21, 2023).
7 “Illegal Aliens” are defined in section 11 of the order to have the same meaning as provided in 8 U.S.C. s. 1101(a)(3); excep t that the
order specified that lawful immigration status does not include parole under 8 U.S.C. s. 1182(d)(5).
8 Defined in the order to have the same meaning as under 6 U.S.C. s. 279(g)(2).
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imposition of fines or revocation of licenses, of any violation of law by a private contractor or
non-governmental organization involved in the resettlement of illegal aliens.9
On January 6, 2023, the Governor issued Executive Order No. 23-03, Emergency Management –
Illegal Migration. Based on findings of unprecedented interdictions, attempts of entry, and border patrol
encounters, the Governor designated the migration of unauthorized aliens to Florida as likely to
constitute a major disaster and designated the director of the Division of Emergency Management as
the state coordinating officer for the disaster with direction to execute response, recovery, and
mitigation plans necessary to cope with the emergency. The order also activates the Florida National
Guard, as needed, to assist with the efforts. The order waives contracting policies and requirements,
allows for expenditure of state funds through the Emergency Preparedness and Response Fund, and
authorizes medical professionals, social workers, and counselors with good and valid licenses issued
by other states to provide humanitarian aid services. 10
Federal Immigration Law
The federal government has broad power over immigration and alien status. 11 This power is enforced
through an extensive set of rules governing alien admission, removal, and conditions for continued
presence within the United States, including the INA.12 While the federal government’s authority over
immigration is well established, the United States Supreme Court has recognized that not “every state
enactment which in any way deals with aliens is a regulation of immigration and thus per se preempted”
by the federal government.13
Human Smuggling
It is estimated that there are 3 million illegal entries into the United States each year, over and above
the amount of encounters that the Border Patrol has with border-crossers. Full-time professional
criminals are facilitating the smuggling of immigrants across the border. Human smuggling is estimated
to generate over $6.75 billion a year.14
Federal law governs whether a person is legally authorized to enter or remain in this country and
provides criminal penalties for illegally transporting a person into the country. Specifically, the law
prohibits a person from:15
Knowing that a person is an alien, bringing or attempting to bring to the United States in any
manner whatsoever such person at a place other than a designated port of entry or place other
than as designated by the Commissioner of Immigration and Naturalization, regardless of
whether such alien has received prior official authorization to come to, enter, or reside in the
United States and regardless of any future official action which may be taken with respect to
such alien.
Knowing or in reckless disregard of the fact than an alien has come to, entered, or remains in
the United States in violation of law, conceals, harbors, or shields from detection, or attempts to
conceal, harbor, or shield from detection, such alien in any place, including any building or any
means of transportation.
Encourages or induces an alien to come to, enter, or reside in the United States, knowing or in
reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of
law.
9 State of Florida, Office of the Governor, Executive Order No. 21-223, September 28, 2021, https://www.flgov.com/wp-
content/uploads/2021/09/EO_21-223.pdf (last visited Mar. 21, 2023)
10 State of Florida, Office of the Governor, Executive Order No. 23-03, January 6, 2023, https://www.flgov.com/wp-
content/uploads/2023/01/EO-23-03.pdf (last visited Mar. 21, 2023).
11 Arizona v. United States, 567 U.S. 387 (2012).
12 8 U.S.C. s. 1108, et seq.
13 De Canas v. Bica, 424 U.S. 351, 355 (1976).
14 United Nations Office on Drugs and Crime, Transnational Organized Crime: Let’s put them out of business,
https://www.unodc.org/toc/en/crimes/migrant-smuggling.html (last visited Mar. 21, 2023).
15 8 U.S.C. s. 1324(a).
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Engages in any conspiracy to commit any of the preceding acts or aids or abets the commission
of any of the preceding acts.
Before 2009, Florida did not specifically provide criminal penalties for transporting a person into the
state who is illegally entering or remaining in the United States. In 2009, the Florida Legislature created
criminal penalties for human smuggling.16 Current law makes it a third degree felony17 for a person to
transport an individual into this state, when the person, who is doing the transporting, knows or should
know that the person he or she is transporting is illegally entering the United States from another
country.18
A person who violates the prohibition against concealing, harboring, or shielding an alien is generally
subject to up to five years imprisonment, but may punishment can be increased as follows:
Up to 10 years imprisonment if the violation was done for the purpose of commercial advantage
or private financial gain.
Up to 20 years imprisonment if the violation causes seriously bodily injury to, or places in
jeopardy, the life of any person.
Death or life imprisonment if a violation results in the death of any person. 19
However, the federal law provides an exception to the offense of concealing, harboring, or shielding an
alien which allows a religious organization to invite, call, allow, or enable an alien who is present in the
United States to perform the vocation of minister or missionary as a volunteer who is not compensated
as an employee, notwithstanding the provision of room, board, travel, medical assistance, and other
basic living expenses, provided he or she has been a member of the denomination for at least one
year.20
Federal law also requires the Secretary of Homeland Security, in consultation with the Attorney General
and the Secretary of State, to develop and implement an outreach program to educate the public about
the penalties for unlawfully bringing in and harboring aliens.21
Statewide Grand Jury Recommendations – Human Smuggling
In June of 2022, a Statewide Grand Jury was impaneled at the request of Governor Desantis for the
purpose of investigating the impact of illegal immigration on Florida. In its First Presentment filed in
December of 2022, the Twenty-First Statewide Grand Jury concluded that the smuggling of illegal
aliens not only endangers Floridians, but also generates huge sums of money for transnational criminal
organizations which is used to further other criminal activities, including drug trafficking and human
trafficking. The Grand Jury concluded that “[s]ince smuggling of illegal aliens into and within Florida
involves multiple individuals, [transnational criminal organizations], and other criminals, the human
smuggling statute must be revised.”22
16 Chapter 2009-160, L.O.F.
17 A third degree felony is punishable by up to five years imprisonment
and up to a $5,000 fine. Sections 775.082, 775.083, and
775.084, F.S.
18 S. 787.07, F.S.
19 8 U.S.C. §1324(a)(1)(A) and (B).
20 8 U.S.C. § 1324(a)(1)(C).
21 8 U.S.C. § 1324(e).
22 The Supreme Court of Florida, First Presentment of the Twenty-First Statewide Grand Jury (s. 787.07, F.S.),
https://supremecourt.flcourts.gov/News -Media/Statewide-Grand-Jury (last visited Mar. 21, 2023).
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Cooperation with Federal Immigration Authorities
In 2019, the Legislature passed federal immigration enforcement legislation. 23 The law requires a law
enforcement agency24 to use its best efforts to support the enforcement of federal immigration law and
applies to any official, representative, agent, or employee of an entity or agency when he or she is
acting within the scope of his or her official duties or employment. Unless expressly required by federal
law, a state entity, local government entity, or law enforcement agency, or any employee, agent, or
representative of the entity or agency, may not prohibit or restrict a law enforcement agency from taking
any of the following actions with respect to information regarding a person’s immigration status:
Sending the information to or requesting, receiving, or reviewing the information from a federal
immigration agency for the purposes of ch. 908, F.S.
Recording and maintaining the information for the purposes of ch. 908, F.S.
Exchanging the information with a federal immigration agency or another state entity, local
governmental entity, or law enforcement agency for the purposes of ch. 908, F.S.
Using the information to comply with an immigration detainer.
Using the information to confirm the identity of a person who is detained by a law enforcement
agency.
In specified criminal cases in which a detained offender is subject to an immigration detainer and
transfer to the custody of the federal government, a sentencing judge must issue an order requiring the
secure detention facility25 in which the defendant is to be confined to reduce his or her sentence by up
to 12 days when the facility determines such a reduction will facilitate the seamless transfer of the
defendant to federal custody. When a secure correctional facility receives verification from a federal
immigration agency that a person subject to an immigration detainer is in the law enforcement agency’s
custody, the agency may securely transport the person to a federal facility in Florida or to another point
of transfer to federal custody outside the jurisdiction of the law enforcement agency. 26 Such a transfer
may occur no earlier than within 12 days of the person’s release date. A law enforcement agency
transferring an alien to a point of transfer outside of Florida must obtain judicial authorization before
completing such a transfer.
Section 908.104(5), F.S., provides an exception to the requirement that a law enforcement agency
must provide a federal immigration agency with information regarding a detained person and applies
when such a person is also a victim or witness to a criminal offense if the person timely and in good
faith responds to the entity or agency’s request for information and cooperation in the investigation or
prosecution of the offense. If any state entity, local governmental entity, or law enforcement agency,
withholds information pursuant to this exception, it must document the victim’s or witness’s cooperation
in the related investigative records and retain the records for at least 10 years for the purpose of audit,
verification, or inspection by the Auditor General. A law enforcement agency may not detain an alien
who is unlawfully present in the United States pursuant to an immigration detainer solely because the
alien witnessed or reported a crime or was a victim of a crime. 27 Finally, the requirements of s. 908.104,
F.S., do not apply when the alien who is unlawfully present is or has been a necess ary witness or
victim of a crime of domestic violence, rape, sexual exploitation, sexual assault, murder, manslaughter,
assault, battery, human trafficking, kidnapping, false imprisonment, involuntary servitude, fraud in
foreign labor contracting, blackmail, extortion, or witness tampering.28
23 Chapter 2019-102, L.O.F. The law was challenged in City of South Miami v. DeSantis, 408 F.Supp.3d 1266 (S.D. Fla. Sept. 21,
2021). Three provisions were enjoined but severable from the remainder of the law. The case was appealed to the Eleventh Circ uit
Court of Appeals on October 20, 2021, and is now pending.
24 “Law enforcement agency” means an agency in this state charged with enforcement of state, county, municipal, or federal laws or
with managing custody of detained persons in this state and includes municipal police departments, sheriffs’ offices, state p olice
departments, state university and college police departments, county correctional agencies, and the Department of Corrections. S.
908.102(4), F.S.
25 “Secure detention facility” means a state correctional facility as defined in s. 944.02, F.S., or a county detention facilit y or municipal
detention facility as defined in s. 951.23, F.S.
26 S. 908.104(4), F.S.
27 S. 908.104(7), F.S.
28 S. 908.104(8), F.S.
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Statewide Grand Jury Recommendations – Qualifying Victims
In January 2023, the Twenty-First Statewide Grand Jury reviewed county compliance with s. 908.104,
F.S., specifically the process by which inmates in some county jails seek to lift a detainer issued by
U.S. Immigration and Customs Enforcement. The Grand Jury concluded that s. 908.104(8), F.S., is
being intentionally and flagrantly abused, leading to the lifting of detainers contrary to the plain meaning
of the statute and the statute’s intent. The Grand Jury further found that unproven claims of being a
qualifying victim are being submitted and approved allowing county officials to disregard and lift federal
detainers. To combat further abuse, the Grand Jury concluded that s. 908.104(8), F.S, must be deleted
in its entirety and that s. 908.104(5), F.S., must be limited to crimes occurring in the United States and
be time barred to five years prior to an alien’s claim for relief under the statute. The Grand Jury also
found that persons seeking relief under the statute need to provide credible sworn supporting evidence
of eligibility.29
Florida RICO (Racketeer Influenced and Corrupt Organization) Act
The Florida RICO (Racketeering Influenced and Corrupt Organization) Act 30 is the area of Florida law
that governs the crime of “racketeering activity.” 31
The RICO Act defines a “pattern of racketeering activity” to mean engaging in at least two incidents of
racketeering conduct32 having the same or similar intents, results, accomplices, victims, or methods of
commission or that otherwise are interrelated by distinguishing characteristics and are not isolated
incidents.33
The RICO Act provides that it is unlawful for any person: 34
With criminal intent to receive any proceeds derived, directly or indirectly, from a pattern of
racketeering activity or through the collection of an unlawful debt35 to use or invest, whether
directly or indirectly, any part of such proceeds, or the proceeds derived from the investment or
use thereof, in the acquisition of any title to, or any right, interest, or equity in, real property or in
the establishment or operation of any enterprise.36
Through a pattern of racketeering activity or through the collection of an unlawful debt, to
acquire or maintain, directly or indirectly, any interest in or control of any enterprise or real
property.
Employed by, or associated with, any enterprise to conduct or participate, directly or indirectly,
in such enterprise through a pattern of racketeering activity or the collection of an unlawful debt.
To conspire or endeavor to violate any of the previously-described activity.
29 The Supreme Court of Florida, Second Presentment of the Twenty -First Statewide Grand Jury (s. 908.104, F.S.), https://efactssc-
public.flcourts.org/casedocuments/2022/796/2022-796_ miscdoc_375408_e99.pdf (last visited Mar. 21, 2023).
30 Ss. 895.01-895.06, F.S.
31 S. 895.02(8), F.S., defines “racketeering activity” to include crimes that are chargeable by petition, indictment, or information und er
the certain specified provisions of law, any conduct defined as “racketeering activity” in 18 U.S.C. § 1961, and any violatio n of Title
68, Florida Administrative Code, relating to the illegal sale, purchase, collection, harvest, capture, or possession of wild animal life,
freshwater aquatic life, or marine life, and related crimes.
32 At least one of such incidents of racketeering conduct must have occurred after October 1, 1977, and the last incident of
racketeering conduct must have occurred within five years after a prior incident. S. 895.02(7), F.S.
33 S. 895.02(7), F.S.
34 S. 895.03, F.S.
35 “Unlawful debt” means any money or other thing of value constituting principal or interest of a debt that is legally unenforc eable in
this state in whole or in part because the debt was incurred or contracted in violation of specified Florida laws (e.g., various gambling
offenses) as well as any gambling activity in violation of federal law or in the business of lending money at a rate usurious under state
or federal law. S. 895.02(12), F.S.
36 “Enterprise” means any individual, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of
this state, or other legal entity, or any unchartered union, association, or group of individuals associated in fact although not a legal
entity; and it includes illicit as well as licit enterprises and governmental, as well as other, entities. A criminal gang as defined in s.
874.03, F.S., constitutes an enterprise. S. 895.02(5), F.S.
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A person convicted of any of the illegal activities commits a first degree felony, 37 and may be subject to
civil remedies including forfeiture to the state of all property, including money, if the property is intended
for use in the course of, derived from, or realized through acts in violation of the Florida RICO Act. 38
In Bowden v. State, the Florida Supreme Court considered the definition of “pattern of racketeering
activity” in s. 895.02(7), F.S., construing the definition to not only require “similarity and interrelatedness
of racketeering activities,” but also “proof that a continuity of a particular criminal activity exists.” 39 The
court in Bowden reasoned that requiring continuity of criminal activity ensures that RICO prosecutions
are of professional or career criminals and not individuals who have committed minor crimes. 40
In cases where the defendant is charged under s. 895.03, F.S., Florida courts have analyzed the
continuity requirement by turning to U.S. Supreme Court precedent.41 When considering the elements
necessary to satisfy the pattern requirement42 of the federal RICO Act43 in H.J. Inc. v. Northwestern Bell
Telephone Co., the U.S. Supreme Court held that the predicate offenses must amount to, or otherwise
constitute a threat of, continuing racketeering activity in order to establish a pattern. 44 The Court
described continuity as “both a closed- and open-ended concept, referring either to a closed period of
repeated conduct, or to past conduct that by its nature projects into the future with a threat of
repetition.”45
Unauthorized Alien Transport Program
The Unauthorized Alien Transport Program within the Division of Emergency Management (DEM)
within the Executive Office of the Governor facilitates the transport of inspected unauthorized aliens
within the United States, consistent with federal law. DEM is authorized to contract for services to
implement the program. The program will expire on June 30, 2025. 46
Federal Immigration Enforcement
In 2019, the Legislature passed federal immigration enforcement legislation.47 The law ensures that
state and local entities and law enforcement agencies cooperate with federal government officials to
enforce, and not obstruct, immigration laws. In its most general and broad terms, the law prohibits
sanctuary policies and requires law enforcement agencies to support the enforcement of federal
immigration law.48 When local law enforcement agencies work with federal immigration officials, aliens
who have committed serious crimes are more easily identified and removed.
Specifically, the law allows a law enforcement agency49 to take the following actions with respect to
information regarding a person’s immigration status:
37 S. 895.04, F.S. A first degree felony is punishable by up to 30 years imprisonment and a $10,000 fine. Ss. 775.082 and 775.083,
F.S.
38 S. 895.05(2), F.S.
39 Bowden v. State, 402 So. 2d 1173, 1174 (Fla. 1981).
40 Id.
41 See State v. Lucas, 600 So. 2d 1093, 1094 (Fla. 1992) (reasoning that the state sufficiently alleged a threat of criminal activity to
constitute open-ended continuity as described by federal precedent).
42 18 U.S.C. § 1962 discusses prohibited activities, which all require a pattern of racketeering activity or collection of an un lawful
debt.
43 The Racketeer Influenced and Corrupt Organizations Act is found in 18 U.S.C. §§1961-1968.
44 H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 240 (1989).
45 Id. at 241.
46 Ch. 2023-3, Laws of Fla.
47 Ch. 2019-102, L.O.F. The law was challenged in City of South Miami v. DeSantis, 408 F.Supp.3d 1266 (S.D. Fla. Sept. 21, 2021).
Three provisions were enjoined but severable from the remainder of the law. The case was appealed to the Eleventh Circuit Cou rt of
Appeals on October 20, 2021, and is now pending.
48 See ch. 908, F.S.
49 S. 908.102(4), F.S., defines a “law enforcement agency” to mean an agency in this state charged with enforcement of state, county,
municipal, or federal laws or with managing custody of detained persons in this state and includes municipal police departmen ts,
sheriffs’ offices, state police departments, state university and college police departments, county correctional agencies, and the
Department of Corrections.
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Sending the information to or requesting, receiving, or reviewing the information from a federal
immigration agency for purposes of ch. 908, F.S.
Recording and maintaining the information for purposes of ch. 908, F.S.
Exchanging the information with a federal immigration agency or another state entity, local
governmental entity, or law enforcement agency for purposes of ch. 908, F.S.
Using the information to comply with an immigration detainer.
Using the information to confirm the identity of a person who is detained by a law enforcement
agency.
Domestic Security
The mission of FDLE is to “promote public safety and strengthen domestic security by providing
services in partnership with local, state, and federal criminal justice agencies to prevent, investigate,
and solve crimes while protecting Florida’s citizens and visitors.” 50 FDLE’s Executive Director serves as
the Chief of Domestic Security in Florida and oversees Office of Domestic Security. The office works
with federal, state, and local officials to prepare for, prevent, protect, respond to, and recover from
domestic security incidents within or affecting the state.51
The three primary components of Florida’s domestic security governance structure include:52
Regional domestic security task forces.
Domestic security coordinating group.
Domestic security oversight council.
The regional domestic security task forces consist of local and multi-disciplinary representatives who
collectively support the domestic security mission and provide the necessary link between the state and
local communities. There are seven regional domestic security task forces located in Pensacola,
Tallahassee, Jacksonville, Orlando, Tampa, Ft. Myers, and Miami. 53
Regional domestic security task forces advise the FDLE and the Chief of Domestic Security on the
development and implementation of a statewide strategy to address prevention, preparation, protection,
response, and recovery efforts related to the state’s domestic security. The task forces also coordinate
the resources of local, state, and federal to ensure that such efforts are not fragmented and
duplicative.54
The domestic security coordinating group (DSCG) provides the structure for federal, state, and local
response to domestic security incidents. The DSCG is made up of representatives and subject matter
experts from the regional domestic security task forces, designated urban areas, other key organization
liaisons and private sector representatives who come together to address domestic security incidents. 55
The domestic security oversight council was established in 2004 to provide direction, leadership, and
recommendations to the Governor and the Legislature on domestic security. 56 The council’s
membership is made up of voting and nonvoting members. Voting members include but are not limited
to the Executive Director of the Division of Emergency Management, the Attorney General, and the
Adjutant General of the Florida National Guard. Nonvoting membership includes but is not limited to,
the Executive Director of the Department of Highway Safety and Motor Vehicles, a representative of the
50 Florida Department of Law Enforcement, FDLE Home, About FDLE, available at https://www.fdle.state.fl.us/About-Us (last visited
Mar. 10, 2023).
51 S. 943.0311(1), F.S.
52 Florida Department of Law Enforcement, FDLE Home, Domestic Security, Domestic Security Organization, Organization¸
available at http://www.fdle.state.fl.us/Domestic-Security/Organization.asp x (last visited Mar.10, 2023).
53 Id.
54 S. 943.0312, F.S.
55 2021 Domestic Security Annual Report, Making Florida Safer, p. 3, available at https://www.fdle.state.fl.us/Domestic-
Security/Documents/2021DSAnnualReportFINAL.aspx (last visited Mar. 10, 2023).
56 Id.
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United States Coast Guard, and a special agency in charge from an office of the Federal Bureau of
Investigations within Florida.57
The council duties include providing guidance to the regional domestic security task forces and the
DSCG with respect to statewide policies and operational protocols that support domestic security
efforts. The council must also review statewide or multiagency mobilizations and responses to major
domestic security incidents and recommend suggestions for training, improvement of respons e efforts,
or improvement of coordination within the state.58
Employment Verification
Under the Immigration Reform and Control Act of 1986 (IRCA), 59 it is illegal for any United States
employer to knowingly:
Hire, recruit, or refer for a fee an alien knowing he or she is unauthorized to work;
Continue to employ an alien knowing he or she has become unauthorized; or
Hire, recruit or refer for a fee, any person (citizen or alien) without following the record keeping
requirements of the IRCA.60
The employment verification process begins when an employee accepts an offer of employment. 61
Between this point and the employee’s first day on the job, an employee must present documents that
establish his or her identity and eligibility to work62 by completing Section 1 of the Form I-9, which
requires the employee’s name, address, social security number (SSN), and citizenship status under
penalty of perjury.63
By the end of the third day on the job, the employer is required to complete Section 2, which states
under penalty of perjury that certain employee-provided documents that establish the employee’s
eligibility were reviewed.64 Most employers are not required to continue the verification of employment
eligibility process beyond this step. However, for those who choose to use or are required to use E-
Verify, the process continues.
E-Verify Federal Law
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 65
which, among other provisions, created various employment eligibility verification programs, including
the Basic Pilot program, now referred to as E-Verify. E-Verify is an Internet-based system through
which an employer can verify that a newly hired employee is authorized to work in the United States. E-
Verify is administered by DHS in partnership with the Social Security Administration (SAA). It is free for
employers to use and provides an automated link to Government records to help employers confirm the
employment eligibility of new hires.66
Originally, the program was available in five of the seven states that had the highest populations of
unauthorized aliens and was initially authorized for only 4 years. However, Congress has consistently
57 S. 943.0313(1), F.S.
58 S. 943.0313(5), F.S.
59 Pub. L. No. 99-603, 100 Stat. 3359.
60 8 U.S.C. s. 1324a.
61 U.S. Citizenship and Immigration Services, Complete and Correct Form I-9, https://www.uscis.gov/i-9-central/complete-and-
correct-form-i-9 (last visited Mar. 11, 2023).
62 An employer may rely on a U.S. passport; resident alien card, alien registration card, or other document designated by the U. S.
Attorney General that contains a photograph and other personal identifying information, authorizes employment in the U.S., and is
tamper resistant. Alternatively, an employer may review a combination of documents that establish the individual’s identity, e.g., a
SSN, and a document that establishes the individual’s identity, e.g., a driver’s license.
63 See 8 C.F.R. § 274a.2(b)(1)(i)(A).
64 8 U.S.C. s. 1324a. See 8 C.F.R. § 274a.2(b)(1)(ii).
65 Pub. L. No. 104-208.
66 U.S. Citizenship and Immigration Services, How do I use E-Verify? https://www.e-
verify.gov/sites/default/files/everify/guides/E4en.pdf (last visited Mar. 21, 2023).
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extended the program’s life. It expanded the program in 2004, making it available in all 50 states. In
2008, the federal government began requiring any entity that maintained or applied for federal contracts
to use E-Verify.67 As of December 31, 2022, there were 1,093,292 employers enrolled in the system
with a usage rate of 16.51 percent and a total of 296,690 case checks for the calendar year. As of
March 2023, Florida accounts for 81,511 employer accounts with 66,385 actively enrolled employers. 68
To use the E-Verify system, an employer must open a “case” for the employee on the system and enter
basic information from the employee’s Form I-9 (name, address, SSN) into the case.69 Then, the
system checks the submitted information to records that are available to the DHS and SSA, and issues
one of the following possible results to the employer:
Employment Authorized - The employee’s information matched records available to the DHS
and/or SSA.
E-Verify Needs More Time - This case was referred to the DHS for further verification.
Tentative Nonconfirmation (Mismatch) - Information did not match records available to the
DHS and/or SSA. Additional action is required.
Case in Continuance - The employee has contacted the DHS or visited an SSA field office, but
more time is needed to determine a final case result.
Close Case and Resubmit – The DHS or SSA requires that the employer to close the case
and create a new case for the employee. This result may be issued when the employee’s
United States passport, passport card, or driver’s license information is incorrect.
Final Nonconfirmation - E-Verify cannot confirm the employee’s employment eligibility after
the employee contacted the DHS or SSA, the time for resolving the case expired, or the DHS
closed the case without confirming the employee’s employment eligibility for som e other
reason.70
If the result is Tentative Nonconfirmation, then the employer must notify the employee, who must take
further action to verify his or her eligibility. If the result is E-Verify Needs More Time or Case in
Continuance, then the E-Verify system needs more time to process the case.71
E-Verify Defenses for Employers
According to federal law, an employer using the I-9 Form, establishing good faith compliance with the
law, has established an affirmative defense that the person or entity has not violated the federal law
with respect to such hiring, recruiting, or referring.72
An employer taking the additional steps to use the E-Verify system to verify employment eligibility may
establish a rebuttable presumption that the person or entity has not violated the federal law with respect
to such hiring, recruiting, or referring.73
The IRCA provides sanctions to be imposed on employers who knowingly employ aliens who are not
authorized to work.74 Federal law contains no criminal sanction for working without authorization,
67 E-Verify, History and Milestones, https://www.e-verify.gov/about-e-verify/history-and-milestones (last visited Mar. 21, 2023).
68 E-Verify, E-Verify Usage Statistics, click “Show the Data Table” for a download csv, https://www.e-verify.gov/about-e-verify/e-
verify-data/e-verify-usage-statistics and How To Find Participating Employers, https://www.e-verify.gov/about-e-verify/e-verify-
data/how-to-find-participating-employers?hiringstates[]=11&field_account_status_value=All&items_per_page=10 (last visited Mar.
21, 2023).
69 E-Verify, Verification Process, for details on how the system works, https://www.e-verify.gov/employers/verification-process (last
visited Mar. 21, 2023). Before using E-Verify, an employer must enroll and sign a Memorandum of Understanding that provides the
terms of agreement between the employer and the DHS. See E-Verify, The E-Verify Memorandum of Understanding for Employers,
https://www.e-verify.gov/sites/default/files/everify/memos/MOUforEVerify Emp loyer.pdf (last visited Mar. 21, 2023).
70 Id.
71 Id.
72 8 U.S.C. s. 1324a(a)(3).
73 8 U.S.C. s. 1324a notes, Pilot Programs for Employment Eligibility Confirmation .
74 8 U.S.C. s. 1324a(a)(1)-(2).
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although document fraud is a civil violation.75 The United States Citizenship and Immigration Services
(USCIS) enforces these provisions.76
E-Verify Results in 2022
In 2022, E-Verify processed 48,042,413 cases, 98.43 percent of which were automatically confirmed as
“work authorized.” Another 1.61 percent were confirmed after an initial “mismatch” and of these 1.54
percent were ultimately found to be not work authorized. 77
In the remaining 1.54 percent of cases, the employees were not found to be authorized to work in the
United States. The majority of these were cases that were not resolved by the end of 2019 for various
reasons, including because the case was awaiting further action by either the employer or employee at
the end of the fiscal year or because the employer closed the case as “self-terminated.”78
E-Verify Operational Disturbances
During the January 2019 partial federal government shut down, the E-Verify system was unavailable.
As a result, employers were unable to enroll in E-Verify, contact customer support representatives,
create an E-Verify case, or view or take action on a case, among other functions.79 The DHS issued
guidance that extended the 3-day rule to permit employers additional time to submit new employee
information to E-Verify and gave employees additional time to resolve a case. 80
E-Verify Florida Law
Since January 1, 2021, in Florida, all public employers and their contractors and subcontractors have
been required to register and use E-Verify to verify the work authorization status of all newly hired
employees.81 Subcontractors must provide an affidavit to their contractor stating that they do not
employ, contract with, or subcontract with unauthorized aliens. The contractor must keep a copy of
such affidavit for the duration of the contract.82
Since January 1, 2021, in Florida, private employers have been required to use the I-9 Form or E-Verify
or a substantially equivalent system to verify that new hires or retained contract employees are
authorized to work in the United States.83 If the employer uses the I-9 system, the employer must retain
a copy of the documentation for at least 3 years after the individual’s initial date of employment. 84 The
75 8 U.S.C. s. 1324c.
76 8 U.S.C. s. 1324a.
77 E-Verify, E-Verify Performance, https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance (last visited
Mar. 21, 2023).
78 Id.
79 National Law Review, When the Government Shuts Down: The Impact on E-Verify, I-9’s, and Visas, January 25, 2019,
https://www.natlawreview.com/article/when-government-shuts-down-impact-e-verify-i-9-s-and-visas (last visited Mar. 21, 2023).
80 U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, E-Verify Resumes Operation,
January 27, 2019, https://www.e-verify.gov/e-verify-resumes-operation (last visited Mar. 21, 2023). Due to the lapse in federal
funding, the E-Verify system was not in operation from December 22, 2018, to January 26, 2019. E-Verify restarted on Sunday,
January 27, 2019. Department of Homeland Security, U.S. Citizenship and Immigration Services, January 2019, E-Verify Incidents,
April 23, 2019, https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-enhancements/january-2019 (last visited Mar. 21,
2023).
81 S. 448.095(2), F.S. This section was enacted in 2020. Previously, pursuant to Executive Order 11-116, state agencies under the
direction of the Governor were required to use E-Verify for all newly hired employees. The order also required an agency to include a
provision in contracts to require a contractor (and any subcontractors) to use E-Verify for all new hires for the duration of the contract.
State of Florida, Office of the Governor, Executive Order No. 11-116, May 27, 2011,
http://edocs.dlis.state.fl.us/fldocs/governor/orders/2011/11-116-suspend.pdf (last visited Mar. 21, 2023).
82 S. 448.095(2)(b), F.S.
83 S. 448.095(3), F.S., provides that a private employer does not include a public employer, an employee leasing company that has a
written agreement or understanding with its client company that places the primary obligat ion for compliance with this section upon
the client company; or an occupant or owner of a private residence that hires casual labor or a licensed independent contract or.
84 S. 448.095(3), F.S.
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law applies to all private employers and does not appear to specify application based on a minimum
amount of employees.
A private employer that complies with the law may not be held civilly or criminally liable under state law
for hiring, continuing to employ, or refusing to hire an unauthorized alien if the information obtained
indicated that the individual’s work authorization status was not that of an unauthorized alien. Further,
using either the I-9 Form or E-Verify creates a rebuttable presumption that the private employer did not
knowingly employ an unauthorized alien.85
A person may not knowingly employ, hire, recruit, or refer an alien for private or public employment
within the state if the alien is not authorized to work under “the immigration laws” or by the United
States Attorney General.86 A first offense of this prohibition is a noncriminal violation punishable by a
fine of up to $500, regardless of the number of aliens with respect to which the violation occurred; each
subsequent offense is a second degree misdemeanor, punishable by up to 60 days in jail and a fine not
to exceed $500, with each unauthorized alien employed as a separate violation. 87
The FDLE, the Attorney General, a state attorney, or the statewide prosecutor is authorized to request
documentation from a private employer used to verify an individual’s employment eligibility. Ultimately,
the federal government’s determination of verification of an individual’s employment status stands and
one of the authorized state agencies may not make an independent determination as to whether a
person is an unauthorized alien.88
A private employer that does not use the I-9 Form or E-Verify, or does not maintain the I-9 Form
documentation for three years, will be required by the DEO to provide an affidavit stating that the
private employer will comply with the law, has terminated the employment of all unauthorized aliens in
this state, and will not intentionally or knowingly employ an unauthorized alien in this state. 89
If the private employer does not provide the required affidavit within 30 days after the request by the
DEO, the appropriate licensing agency90 must suspend all applicable licenses held by the private
employer until the private employer provides the DEO with the required affidavit. If a private employer
does not provide the required affidavit within the required time period three times within any 36-month
period, then the appropriate licensing agency must revoke all applicable licenses held by the private
employer. The licenses subject to suspension or revocation are:
All licenses that are held by the private employer specific to the business location where the
unauthorized alien performed work.
If the private employer does not hold a license specific to the business location where the
unauthorized alien performed work, but a license is necessary to operate the private employer’s
business in general, then the provision applies to all licenses that are held by the private
employer at the private employer’s primary place of business. 91
E-Verify in Other States
Currently, 22 states require the use of E-Verify for at least some public and/or private employers. These
states include Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Michigan,
Minnesota, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, Pennsylvania, South Carolina,
Tennessee, Texas, Utah, Virginia and West Virginia.92
85 Id.
86 S. 448.09(1), F.S.
87 S. 448.09(2), F.S. See ss. 775.082 and 775.083, F.S.
88 S. 448.095(3), F.S.
89 Id.
90 The term “agency” means any agency, department, board, or commission of this state or a county or municipality in this state that
issues a license to operate a business in this state.
91 Id.
92 National Conference of State Legislatures, State E-Verify Action, https://www.ncsl.org/immigration/state-e-verify-action (last
visited Mar. 21, 2023).
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The following states require private employers, as well as public employers and their contractors and
subcontractors, to use E-Verify: North Carolina;93 Mississippi;94 Georgia;95 Arizona;96 Alabama;97
Utah;98 and South Carolina.99
The following states require only public employers and their contractors to use E-Verify: Indiana;100
Nebraska;101 Missouri;102 Colorado;103 Oklahoma;104 Texas;105 and Virginia.106
Some states’ approaches do not fall squarely into the above categories. For example, Tennessee
requires only private employers that have 50 or more employees to use E-Verify.107 Pennsylvania
requires public contractors and private construction employers to use E-Verify.108 In Michigan, only
contractors of the Michigan Department of Transportation must use E-Verify.109 Finally, West Virginia
requires contractors whose employees work on the Capitol grounds to use E-Verify.110
County and Municipal Community ID Cards
Article VIII of the Florida Constitution establishes the authority for home rule by counties and
municipalities. Pursuant to general or special law, a county government may be adopted by charter
approved by the county voters.111 A county without a charter has such powers of self-government as
provided by general112 or special law.113 A county with a charter has all powers of self-government not
inconsistent with general law or special law approved by the county voters. 114 The Florida Constitution
93 N.C.G.S. § 160A-169.1 (municipalities); 153A-99.1 (counties); 143-48.5, 143-133.3 (public contractors); 64-26 (private employers
that have more than 25 employees); 126-7.1 (state agencies).
94 Miss. Code § 71-11-3.
95 Ga. Code § 13-10-91 (public employers and contractors); 36-60-6 (private employers that have more than 10 employees).
96 Ariz. Rev. Stat. § 41-4401 (public contractors); 23-214 (private and public employers).
97 Ala. Code § 31-13-15.
98 Utah Code § 63G-12-301 (private employers having 15 or more employees, unless the employee has a guest worker permit), 63G-
12-302 (public employers and contractors). Under both statutes, the employers may use E-Verify or another federal verification
program.
99 S.C. Code § 41-8-20 (private employers); 8-14-20 (public employers and contractors).
100 Ind. Code § 22-5-1.7-11.1.
101 Nev. Rev. St. § 4-114.
102 Miss. Stat. § 285.530.
103 Colo. Rev. Stat. § 8-17.5-102.
104 25 Okl. St. § 1313 (public employers and contractors must use E-Verify or another federal verification program).
105 Tex. Nat. Res. Code § 81.072 (public contractors); Tex. Gov. Code § 673.002 (state agencies)
106 Va. Code § 40.1-11.2 (state agencies), 2.2-4308.2 (public contractors).
107 Tenn. Code § 50-1-703.
108 43 Penn. Stat. § 167.3 (public contractors); 43 Penn. Stat. §168.3 (private construction employers).
109 Act 200, Public Acts of 2012, Sec. 381.
110 W. Va. Code, § 15-2D-3.
111 S. 125.60, F.S.
112 Ch. 125, Part I, F.S.
113 Art. VIII, s. 1(f), FLA. CONST .
114 Art. VIII, s. 1(g), FLA. CONST .
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provides unique authorization115 for specific home rule charters including those of Duval 116 and Miami-
Dade Counties.117 Currently, 20 Florida counties have adopted charters. 118
Municipalities have all governmental, corporate, and proprietary powers necessary to conduct
municipal government, functions, and services, and may exercise any power for municipal purposes 119
except as otherwise provided by general law.120
Counties and municipalities are authorized to set and control their respective budgets subject to
general law.121 For example, all county and municipal budgets must be balanced. 122
A county commissioner voting to approve paying an illegal charge or claim not authorized by law is
guilty of malfeasance123 and is subject to suspension by the Governor.124 A clerk of the court serving as
county auditor125 who willfully or knowingly signs a warrant to pay an illegal charge is personally liable
for the entire amount of such payment.126 An elected or appointed municipal official who commits
malfeasance or misfeasance in office also is subject to gubernatorial suspension. 127
Recently, certain private organizations, like the FaithAction International House, in conjunction with
local communities, have been issuing community IDs, with the goal of providing ID cards to individuals
who may not currently have access to government issued forms of ID, including new immigrants and
refugees, homeless and elderly individuals, and those recently returning from jail. According the
FaithAction International House webpage, “The FaithAction ID provides card holders with a verifiable
form of identification that can be used as a tool by law enforcement, health centers, schools, nonprofits,
businesses, and cultural arts organizations to better identify, serve, and protect them.” 128 FaithAction
International House provides that ID card is not a state issued form of identification, which is noted on
the back of the card; therefore it cannot be used to vote, does not entitle the cardholder to any social
welfare benefits; does not have any impact on an individual’s immigration status. Individuals may pay a
115 Article VIII, s. 6(e), FLA. CONST ., incorporating by reference ss. 9, 10, 11, 24 from article VIII of the 1885 Constitution, states that
these specific provisions respectively for Duval, Miami-Dade, Monroe, and Hillsborough Counties “shall remain in full force and
effect as to each county affected, as if this article had not been adopted, until that county shall expressly adopt a charter or home rule
plan pursuant to this article.”
116 The consolidated government of the City of Jacksonville was created by ch. 67-1320, Laws of Florida, adopted pursuant to Art.
VIII, s. 9, FLA. CONST . (1885).
117 In 1956, an amendment to the 1885 Florida Constitution provided Dade County with the authority to adopt, revise, and amend from
time to time a home rule charter government for the county. The voters of Dade County approved that charter on May 21, 1957. Dade
County, now known as Miami-Dade County, has unique home rule status. Article VIII, s. 11(5) of the 1885 State Constitution, now
incorporated by reference in art. VIII, s. 6(e), Fla. Const. (1968), further provided the Metropolitan Dade County Home Rule Charter,
and any subsequent ordinances enacted pursuant to the charter, may conflict with, modify, or nullify any existing local, special, or
general law applicable only to Dade County. Accordingly, Miami-Dade County ordinances enacted pursuant to the Charter may
implicitly, as well as expressly, amend or repeal a special act that conflicts with a Miami-Dade County ordinance. Effectively, the
Miami Dade Charter can only be altered through constitutional amendment, general law, or County actions approved by referendu m.
Chase v. Cowart, 102 So. 2d 147, 149-50 (Fla. 1958).
118 Alachua, Brevard, Broward, Charlotte, Clay, Columbia, Duval (consolidated government with the City of Jacksonville, ch. 67-
1320, Laws of Fla.), Hillsborough, Lee, Leon, Miami-Dade, Orange, Osceola, Palm Beach, Pinellas, Polk, Sarasota, Seminole,
Volusia, and Wakulla Counties. The Local Government Formation Manual, Appendix C, p. 106, 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 March 17, 2023).
119 S. 166.021(2), F.S., which defines “municipal purpose” as “any activity or power which may be exercised by the state or its
political subdivisions.”
120 Art. VIII, s. 2(b), FLA. CONST .
121 See ss. 129.01, 129.02, F.S. for counties, s. 166.241, F.S., for municipalities.
122 Ss. 129.01(2)(b), 166.241(2), F.S.
123 S. 129.08, F.S.
124 Art. IV, s. 7, FLA. CONST .
125 Art. VIII, s. 1(d), FLA. CONST .
126 S. 129.09, F.S.
127 S. 112.51, F.S.
128 FaithAction International House, FaithAction ID Program and Network , https://faithaction.org/faithaction-id-program-and-
network/ (last visited Mar. 21, 2023).
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small fee for the card, or the card may be issued for free, and must attend an ID drive event that
provide an orientation on the benefits and limitations of the card. 129
In Florida, several local governments have partnered with organizations to offer Community ID cards. In
2019 the City of West Palm Beach passed a resolution authorizing the city to accept identification cards
issued by People Engaged in Active Community Efforts, affiliated with Legal Aid in Palm Beach County.
The city appropriated $40,000 to the program to issue identification cards to those without access to
other forms of identification, including undocumented immigrants. Cards are issued under this program
for a fee of $20.130
On January 31, 2023, the Board of County Commissioners for Miami-Dade County adopted a plan to
fund $200,000 to Branches, a non-profit tax preparation entity, to issue county identification cards to
those without access to other forms of identification, including individuals who are homeless or who are
undocumented immigrants.131
Broward County approved a program for Legal Aid Service of Broward County to issue the Broward
Community ID Card for a fee of $20. The card is provided to individuals who can present a particular
form of current or expired identification132 and prove they are a Broward County resident with an
address effective within the past three months. The program cautions that the card neither authorizes
driving or entitlement to social welfare benefits nor affects the cardholder’s immigration status. 133
The City of Aventura and other municipalities offer resident ID cards that are conditioned on
presentation of a government-issued ID like a valid driver’s license or passport and proof of residency.
Cardholders can access discounted rates at fishing piers, city-owned recreational facilities, reduced
pricing on programs and activities, and free entrance to certain events. Cards may require a small fee
or may be provided for free and require renewal annually or may be valid for up to three years,
depending on the locality.134
Driver Licenses
Current law prohibits a person from driving any motor vehicle upon a Florida highway unless such
person has a valid driver license issued under ch. 322, F.S.135 However, an individual is exempt from
obtaining a Florida driver license if he or she is a nonresident who is: 136
At least 16 years of age and possesses a valid noncommercial driver license issued to him or
her in his or her home state or country and operating a type of motor vehicle for which a Class E
driver license is required in this state.
At least 18 years of age and possesses a valid noncommercial driver license issued to him or
her in his or her home state or country and operating a motor vehicle, other than a commercial
motor vehicle, in this state.
Current law establishes requirements governing the issuance of driver licenses by DHSMV. 137 An
applicant for a driver license or identification card is required to provide his or her SSN for the purpose
129 Id.
130 WPTV West Palm Beach, New IDs for undocumented immigrants in Palm Beach County, https://www.wptv.com/news/local-
news/immigrants-in-south-florida/new-ids-for-undocumented-immigrants-in-palm-beach-county (last visited Mar. 21, 2023).
131 Newsweek, Florida County to Issue IDs to Undocumented Immigrants Through Third Party, https://www.newsweek.com/florida-
county-issue-ids-undocumented-immigrants-through-third-party-1675585 (last visited Mar. 21, 2023).
132 Examples given include a passport, driver’s license, foreign national ID, consular or embassy ID, or military ID.
133 Legal Aid Service of Broward County, Broward Community ID, https://www.browardlegalaid.org/communityid/ (last visited
March 17, 2023).
134 City of Aventura, Aventura ID Card, https://www.cityofaventura.com/221/Aventura-ID-Card; City of Delray Beach, Residency
(Activities) Identification Cards, https://www.delraybeachfl.gov/government/city-departments/city-clerk/residency-identification-
cards; City of Sunny Isles Beach, Resident ID Card, https://www.sibfl.net/ccs/residentid/; The Villages, Resident ID Card
Information, https://districtgov.org/departments/Community-Service/idCards.aspx (last visited Mar. 21, 2023).
135 See s. 322.03, F.S.
136 S. 322.04(1)(c) and (d), F.S.
137 See s. 322.08, F.S.
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of identification. This information is electronically verified with the federal SSA to confirm identity, as
required by the Real ID Act of 2005. Applicants are required to provide proof of identity that is
satisfactory to the DHSMV. The following documents constitute acceptable proof of identification:138
A certified copy of a United States birth certificate;
A valid, unexpired passport or passport card;
A Certificate of Naturalization issued by the DHS;
A valid, unexpired alien registration receipt card (green card);
A Consular Report of Birth Abroad; and
A valid, employment authorization card issued by the DHSMV.
DHSMV is authorized to require an applicant for an original driver license to produce certain DHS or
foreign documents to prove nonimmigrant classification for the sole purpose of establishing continuous
lawful presence in the United States.139
DHSMV is authorized to waive the Class E knowledge (written) and skills requirements if an applicant
for an original driver license presents a valid driver license from another state, province of Canada, or
the United States Armed Forces when applying for a Florida driver license of equal or lesser
classification.140
Driver License Compact and Reciprocity
The Driver License Compact was created to provide uniformity among member jurisdictions when
exchanging information with other members on convictions, records, licenses, withdrawals, and other
data pertinent to the licensing process. Uniformity helps ease administrative costs and meets the
underlying tenet of the agreement that each driver nationwide have only one driver license and one
driver control record.
DHSMV is authorized to enter into reciprocal driver license agreements with other jurisdictions within
the United States and its territories and possessions and with foreign countries or political entities
equivalent to Florida state government within a foreign country. 141 Generally, valid driver licenses
issued by any state in the United States are valid when visiting another state. However, exceptions do
exist for state-specific laws, such as required driving ages.142
States Issuing Driver Licenses to Undocumented Immigrants
States issue driver’s licenses under the constitutional authority of the 10th Amendment. In 2005,
Congress enacted the Real ID Act, creating standards for state-issued driver’s licenses, including
evidence of lawful status. Currently, 18 states and the District of Columbia have enacted laws to allow
undocumented immigrants to obtain driver’s licenses. These states include, California, Colorado,
Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Nevada, New Jersey, New Mexico,
New York, Oregon, Rhode Island, Utah, Vermont, Virginia, and Washington. The states issue a license
(or a “driving privilege card”) if an applicant provides certain documentation, such as a foreign birth
certificate, foreign passport, or consular card and evidence of current residency in the state. 143
138 S. 322.08(2)(c), F.S.
139 S. 322.08(2)(c)8., F.S.
140 S. 322.12,F.S.
141 S. 322.02(4),F.S.
142 FindLaw, Driver’s Licenses FAQ, November 27, 2017, https://www.findlaw.com/traffic/drivers -license-vehicle-info/driver-s-
licenses-faq.html (last visited Mar. 21, 2023).
143 National Conference of State Legislatures, States Offering Driver’s Licenses to Immigrants, January 16, 2023,
https://www.ncsl.org/immigration/states -offering-drivers-licenses-to-immigrants (last visited Mar. 21, 2023).
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Since 1993, beginning in the State of Washington, states have offered undocumented immigrants the
ability to obtain a state driver license to encourage otherwise unlicensed drivers to pass driver license
testing and obtain vehicle insurance.144
Following the Real ID Act, noncompliant cards must have a recognizable feature on their face to
distinguish the license from those issued to legal residents. Possession of a Real ID compliant driver
license is not federally required for operating a motor vehicle. The DHS cautions against assuming that
possession of a noncompliant card indicates that an individual is undocumented. Individuals may
choose to obtain a noncompliant card for reasons unrelated to lawful presence in the United States. 145
Admission to Practice Law
In 2014 the Legislature authorized applicants to the Florida Bar who are unauthorized immigrants to be
admitted to the Bar by the Florida Supreme Court if certain conditions are met. 146 The Legislature acted
following an advisory opinion from the Florida Supreme Court that related to whether undocumented
immigrants are eligible for admission to the Florida Bar.147 The Court held that federal law prohibits
specified categories of aliens from obtaining certain public benefits, which includes a professional
license that is provided by appropriated funds of a state. However, the federal law in question allows a
state to provide such a benefit through the enactment of a state law that affirmatively provides for such
eligibility.148
Current law allows the Florida Supreme Court to admit an applicant for admission to the Florida Bar if
such applicant has:149
Been brought to the United States as a minor;
Been present in the United States for more than 10 years;
Received documented employment authorization from the U.S. Citizenship and Immigration
Services;
Been issued a SSN;
Registered with the Selective Service System if required to do so under the federal Military
Selective Service Act; and
Otherwise fulfilled all requirements for admission to practice law in this state.
Statewide DNA Database
The Legislature established the Statewide DNA database (statewide database) in 1989, which is
administered by the Florida Department of Law Enforcement (FDLE) and capable of classifying,
matching, and storing analyses of DNA and other biological material and related data. 150 The statewide
database contains DNA samples, including those:151
Submitted by persons convicted of or arrested for felony offenses and specified misdemeanor
offenses; and
Necessary for identifying missing persons and unidentified human remains, including samples
voluntarily contributed by relatives of missing persons.
144 Britannica ProCon, States (and DC) That Allow Undocumented Immigrants to Obtain Driver’s Licenses, November 14, 2022,
States (and DC) That Allow Undocumented Immigrants to Obtain Driver's Licenses - Immigration - ProCon.org (last visited Mar. 21,
2023).
145 Department of Homeland Security, Real ID Frequently Asked Questions for the Public, https://www.dhs.gov/archive/real-id-
public-faqs (last visited Mar. 21, 2023).
146 Chapter 2014-35, L.O.F.
147 Florida Board of Bar Examiners Re: Question as to Whether Undocumented Immigrants are Eligible for Admission to the Florida
Bar. No. SC11-2568 (Mar. 6, 2014).
148 8 U.S.C. s. 1621(d) (2012).
149 S. 454.021(3), F.S.
150 Ch. 89-335, Laws of Fla., codified in s. 943.325, F.S.
151 S. 943.325(3), F.S.
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All accredited local government crime laboratories in Florida have access to the statewide database in
accordance with rules and agreements established by FDLE. 152 Local laboratories can access the
statewide database through the FBI’s Combined DNA Index System (CODIS),153 allowing for the
storage and exchange of DNA records submitted by federal, state, and local forensic DNA
laboratories.154
The statewide database may contain DNA data obtained from the following types of biological
samples:155
Crime scene samples.
Samples required by law to be obtained from qualifying offenders.
Samples lawfully obtained during the course of a criminal investigation, including those from
deceased victims or deceased suspects.
Samples from unidentified human remains.
Samples from persons reported missing.
Samples voluntarily contributed by relatives of missing persons.
Other samples approved by FDLE.
A “qualifying offender” is defined as any person, including a juvenile or adult:156
Who is:
o Committed to a county jail;
o Committed to or under the supervision of the Department of Corrections (DOC),
including a private correctional institution;
o Committed to or under the supervision of the Department of Juvenile Justice (DJJ); or
o Transferred to Florida under the Interstate Compact on Juveniles or the Interstate
Corrections Compact; and
Who is:
o Convicted of any felony offense or attempted felony offense in Florida or a similar
offense in another jurisdiction;
o Convicted of a specified misdemeanor violation;157 or
o Arrested for any felony offense or attempted felony offense in Florida. 158
A qualifying offender is required to submit a DNA sample for inclusion in the statewide database if he or
she is:
Arrested in Florida;
Incarcerated in Florida; or
On probation, community control, parole, conditional release, control release, or any other type
of court-ordered supervision in Florida.159
An arrested offender is required to submit a DNA sample at the time he or she is booked into a jail,
correctional facility, or juvenile facility. An incarcerated person and a juvenile in the custody of DJJ must
submit a DNA sample at least 45 days before his or her presumptive release date. 160
152 S. 943.325(4), F.S.
153 “CODIS” means the Federal Bureau of Investigation's Combined DNA Index System that allows the storage and exchange of DNA
records submitted by federal, state, and local forensic DNA laboratories. S. 943.325(2)(b ), F.S.
154 S. 943.325(2), F.S.
155 S. 943.325(6), F.S.
156 S. 943.325(2)(g), F.S.
157 Including a misdemeanor violation of s. 784.048 (stalking), s. 810.14 (voyeurism), s. 847.013 (exposing minors to harmful mot ion
pictures, exhibitions, shows, presentations, or representations ), s. 847.0135 (owner or operator of computer service used for child
pornography violation), or s. 877.26 (observing or taping in dressing room), or an offense that was found, pursuant to s. 874.04, to
have been committed for the purpose of benefiting, pro moting, or furthering the interests of a criminal gang as defined in s. 874. 03.
See s. 943.325(2)(g)2.b., F.S.
158 S. 943.325(2)(g), F.S.
159 S. 943.325(7), F.S.
160 Id.
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FDLE is required to retain all DNA samples submitted to the statewide database and such samples
may be used for any lawful purpose.161 Because submission requirements have been expanded since
the creation of the statewide database, an offender arrested or convicted before the enactment of the
current requirements may not have submitted a DNA sample at the time of his or her initial booking.
FDLE specifies database procedures to maintain compliance with national quality assurance standards
to ensure that DNA records will be accepted into the National DNA Index System (NDIS). 162 Results of
any DNA analysis must be entered into the statewide database and may only be released to criminal
justice agencies. Otherwise, the information is confidential and exempt from state public records
disclosure requirements under s. 119.07(1), F.S., and article I, s. 24(a), of the Florida Constitution.163
The collection of samples from a person booked into a jail, correctional facility, or juvenile facility for a
felony has been a phased-in process. The process started in January 2011 and was completed
2020.164
Heath Data
In response to Executive Order No. 21-223, AHCA issued a corresponding data request to all Florida
hospitals with an attached questionnaire.165 On August 18, 2022, AHCA reported the results of the data
request finding that total costs attributed to illegal aliens were $312.92 million and that hospitals were
paid for $103.49 million of those costs. The local funds expended for inpatient and outpatient services
cost $700,000, while state and federal funds expended were $104.91 million and $5.30 million,
respectively. The report also stated that 142 of 316 facilities indicated that charity care provided
included illegal aliens.166 There is some indication that the reported data may be incomplete, however,
as many health care facilities do not question patients about their immigration status and struggled to
meet the data reporting requirement.167
Hospitals
Hospitals are regulated by the AHCA under ch. 395, F.S., and the general licensure provisions of part
II, of ch. 408, F.S. Hospitals offer a range of health care services with beds for use beyond 24 hours by
individuals requiring diagnosis, treatment, or care.168 Hospitals must make regularly available at least
clinical laboratory services, diagnostic X-ray services, and treatment facilities for surgery or obstetrical
care, or other definitive medical treatment.169
AHCA must maintain an inventory of hospitals with an emergency department. 170 The inventory must
list all services within the capability of each hospital, and such services must appear on the face of the
hospital’s license. As of March 2, 2023, there were 323 licensed hospitals in the state.171
161 Id.
162 The DNA Index System is a national index of permissible DNA records input by federal, state and local participating criminal
justice agency forensic laboratories, FBI FAQ, https://www.fbi.gov/how-we-can-help-you/dna-fingerprint-act-of-2005-expungement-
policy/codis-and-ndis-fact-sheet (last visited Mar. 21, 2023).
163 S. 943.325(14), F.S.
164 S. 943.325(3)(b), F.S. and FDLE Long Range Program Plan, September 30, 2021, p. 12,
http://floridafiscalportal.state.fl.us/Document.aspx?ID=23192&DocType=PDF (last visited Mar. 21, 2023).
165 Agency for Health Care Administration, AHCA Data Request - EO 21-223,
https://ahca.myflorida.com/content/download/4724/file/AHCA_Data_Request -EO_21-223.pdf (last visited Mar. 21, 2023).
166 Agency for Health Care Administration, Cost of Services on the Health Care System, Executive Order 21 -223, Data for SFY 2020-
2021, August 18, 2022, https://ahca.myflorida.com/content/download/20792/file/Executive_Order_ 21 -223_Update_01302023.pdf
(last visited Mar. 21, 2023).
167 Hospitals unable to meet undocumented patient data demand from Gov. DeSantis, The Gainesville Sun, Javon L. Harris, June 9,
2022, https://www.gainesville.com/story/news/2022/06/09/florida-hospitals-unable-meet-immigration-data-demand-
desantis/7499186001/ (last visited Mar. 21, 2023).
168 S. 395.002(12), F.S.
169 Id.
170 S. 395.1041(2), F.S.
171 Agency for Health Care Administration, Florida Health Finder Report,
https://quality.healthfinder.fl.gov/facilitylocator/ListFacilities.aspx (last visited Mar. 21, 2023).
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AHCA is authorized to adopt rules for the licensing and regulation of hospitals.172 Separate standards
may be provided for general and specialty hospitals.173 The rules for general and specialty hospitals
must include minimum standards to ensure:174
A sufficient number of qualified types of personnel and occupational disciplines are on duty and
available at all times to provide necessary and adequate patient care;
Infection control, housekeeping, sanitary conditions, and medical record procedures are
established and implemented to adequately protect patients;
A comprehensive emergency management plan is prepared and updated annually;
Licensed facilities are established, organized, and operated consistent with established
standards and rules; and
Licensed facility beds conform to minimum space, equipment, and furnishing standards.
The minimum standards for hospital licensure are contained in Chapter 59A-3, F.A.C.
The Emergency Medical Treatment and Labor Act
In 1986, Congress enacted the Emergency Medical Treatment and Labor Act (EMTALA) to ensure
public access to emergency services regardless of ability to pay. 175 Section 1867 of the Social Security
Act imposes specific obligations on Medicare-participating hospitals that offer emergency services to
provide a medical screening examination when a request is made for examination or treatment for an
emergency medical condition (EMC), including active labor, regardless of an individual’s ability to pay.
Hospitals are then required to provide stabilizing treatment for patients with EMCs. If a hospital is
unable to stabilize a patient within its capability, or if the patient requests, an appropriate transfer
should be implemented.176
Impermissible Delays
EMTALA prohibits a participating hospital from delaying providing the appropriate medical screening
examination or treatment required for specified reasons. The act allows a hospital to follow “reasonable
registration processes;” however, such registration processes “may not unduly discourage individuals
from remaining for further evaluation.”177 Interpretive guidelines issued by the federal Centers for
Medicare and Medicaid Services for these provisions state that “the registration process permitted in
the dedicated [emergency department] typically consists of collecting demographic information,
insurance information, whom to contact in an emergency and other relevant information.” 178
Proposed Changes
ID Cards
The bill prohibits counties and municipalities from providing funding to any person, entity, or
organization for the purpose of issuing an identification card or document to an individual who cannot
provide proof of lawful presence in the United States. The bill does not prohibit counties or
municipalities from accepting such identification produced by a third party for local governmental
purposes.
172 See s. 395.1055, F.S.
173 S. 395.1055(2), F.S.
174 S. 395.1055(1), F.S.
175 See 42 U.S. Code § 1395dd.
176 Centers for Medicare and Medicaid Services, Emergency Medical Treatment & Labor Act (EMTALA),
https://www.cms.gov/regulations-and-guidance/legislation/emtala (last visited Mar. 21, 2023).
177 See 42 CFR s. 489.24(d)(4)(iv).
178 Centers for Medicare and Medicaid Services, State Operations Manual Appendix V – Interpretive Guidelines – Responsibilities of
Medicare Participating Hospitals in Emergency Cases, p. 56, https://www.cms.gov/Regulations -and-
Guidance/Guidance/Manuals/Downloads/som107ap_v_emerg.pdf (last visited Mar. 21, 2023).
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Driver Licenses
The bill provides that if a driver license is of a class of licenses issued by another state exclusively to
undocumented immigrants who are unable to prove lawful presence in the United States when the
license was issued, the driver license, or other permit purporting to authorize the holder to operate a
motor vehicle on public roadways, is invalid in this state and does not authorize the holder to operate a
motor vehicle in this state. Such classes of licenses include licenses that are issued exclusively to
undocumented immigrants or licenses that are substantially the same as licenses issued to citizens,
residents, or those lawfully present in the United States but have markings establishing that the license
holder did not exercise the option of providing proof of lawful presence.
The bill requires a law enforcement officer or other authorized representative of DHSMV who stops a
person driving with such an invalid license to issue a citation to the driver for driving without a license in
violation of s. 322.03, F.S., which provides that a person convicted of a violation of ch. 322, F.S., is
guilty of a second degree misdemeanor, punishable by a fine of up to $500 or a term of imprisonment
of up to 60 days.179
In order to facilitate the enforcement of the new provision related to invalid licenses issued by other
states to undocumented immigrants and to aid in providing notice to the public and visitors of these
invalid licenses, the bill requires DHSMV to maintain on its website a list of out-of-state classes of driver
licenses that are invalid in this state.
The bill revises the circumstances under which certain nonresidents are exempt from obtaining a
Florida driver license to specify that the nonresident’s license must not be invalid under the new
provisions contained in s. 322.033, F.S., relating to proof of the licensee’s lawful presence in the United
States.
Health Data
The bill requires any hospital that accepts Medicaid to include a question on its patient admission or
registration forms, that may be answered by the patient or the patient’s representative, inquiring about
whether the patient is a United States citizen, is lawfully present in the United States, or is not lawfully
present in the United States. The question must be followed by a statement indicating that the
response to the question will not affect patient care or result in a report of the patient’s immigration
status to immigration authorities.
The bill requires each hospital to provide a quarterly report to AHCA, within 30 days of the end of each
quarter, detailing the number of admissions or emergency department visits by patients who responded
to the required question. AHCA must, in turn, provide a report to the Governor and the Legislature by
March 1 of each year compiling the data received from the hospitals. The annual report must describe
the costs of uncompensated care provided to patients not lawfully in the country, the impact of
uncompensated care on the cost or ability of hospitals to provide services to the public and on hospital
funding needs, and other related information.
AHCA is authorized to adopt rules specific to the format of the quarterly report and the format of the
question that hospitals must include on their admission or registration forms. The bill specifies that the
rules may not require disclosure of patient names or other personal identifying information to AHCA.
Employment Prohibitions
Effective July 1, 2024, the bill amends penalties for violation of laws prohibiting the employment of
unauthorized aliens, as follows:
If DEO finds or is notified by FDLE, the Attorney General, the state attorney in the circuit in
which the new employee works, or the statewide prosecutor that an employer employed an
unauthorized alien without verifying the employment eligibility of such person, then DEO must
179 See ss. 775.082 or 775.083, F.S.
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enter an order making a determination of violation and require repayment of any economic
development incentive as required in s. 288.061, F.S.
For a first violation, DEO must place the employer on a one-year probation and require quarterly
reporting to demonstrate compliance.
Subsequent violations that take place within 24 months after a previous violation constitute
grounds for the suspension or revocation of all licenses issued by a licensing agency subject to
the administrative procedure act.
DEO is required to take the following actions based on violations involving:
One to 10 unauthorized aliens: suspension of all applicable licenses held by a private employer
for up to 30 days by the respective agencies that issued them.
Eleven to 50 unauthorized aliens: suspension of all applicable licenses held by a private
employer for up to 60 days by the respective agencies that issued them.
More than 50 unauthorized aliens: revocation of all applicable licenses held by a private
employer by the respective agencies that issued them.
The bill creates a third degree felony for an alien who is not duly authorized to work by the immigration
laws of the United States, the Attorney General of the United States, or the United States Secretary of
the Department of Homeland Security and who knowingly uses a false identification document or who
fraudulently uses an identification document of another person for the purpose of obtaining
employment.
E-Verify
The bill revises the E-Verify employment verification law as follows:
Maintains the requirement that public employers use the E-Verify system.
Beginning July 1, 2023, requires private employers with 25 or more employees to use the E-
Verify system to verify employment eligibility of new employees instead of allowing the use of E-
Verify or a Form I-9.
Requires each employer required to use the E-Verify system to certify on its first return each
calendar year to the tax service provider that it is in compliance when making contributions to or
reimbursing the state's unemployment compensation or reemployment assistance system.
Requires employers to use the Employment Eligibility Verification form (Form I-9) to verify
employment eligibility if the E-Verify system is unavailable for 3 business days after the first day
that the new employee begins working for pay and an employer cannot access the system to
verify a new employee's employment eligibility.
o Provides that the unavailability of the E-Verify system does not bar the employer from
using the rebuttable presumption.
o Requires the employer to document the unavailability of the E-Verify system by retaining
a screenshot from each day which shows the employer's lack of access to the system, a
public announcement that the E-Verify system is not available, or any other
communication or notice recorded by the employer regarding the unavailability of the
system.
Provides that an employee leasing company licensed under part XI of chapter 468, F.S., which
enters into a written agreement or understanding with a client company which places the
primary obligation for compliance with the E-Verify provisions upon the client company is not
required to verify employment eligibility of any new employees of the client company.
o Provides that in the absence of a written agreement or understanding, the employee
leasing company is responsible for compliance with these provisions.
o Requires such employee leasing company to, at all times, remain an employer as
otherwise defined in federal laws or regulations.
The bill revises the list of entities that are authorized to request copies of documentation relied upon by
a private employer for verification of a person’s employment eligibility, to:
Add DEO.
Specify that the state attorney must be in the circuit in which the new employee works.
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The bill clarifies the defenses for employers, as follows:
An employer that complies with the E-Verify laws establishes an affirmative defense that the
employer has not violated s. 448.09, F.S., which prohibits employment of unauthorized aliens,
with respect to such employment.
The bill provides the following compliance requirements:
In addition to the requirements under s. 288.061(6), F.S., which require DEO to enforce E-Verify
requirements for businesses applying for economic incentives, beginning on July 1, 2024, if
DEO determines that an employer failed to use the E-Verify system to verify the employment
eligibility of employees:
o DEO must notify the employer of the department's determination of noncompliance and
provide the employer with 30 days to cure the noncompliance.
o If an employer is determined to not have used the E-Verify system as required three
times in any 24-month period, the department must impose a fine of $1,000 per day until
the employer provides sufficient proof to the department that the noncompliance is
cured.
o Noncompliance constitutes grounds for the suspension of all licenses issued by a
licensing agency subject to the administrative procedure act until the noncompliance is
cured.
o Fines collected must be deposited into the State Economic Enhancement and
Development Trust Fund for use by the department for employer outreach and public
notice of the state's employment verification laws.
The bill specifies that the requirements to use the E-Verify system do not apply in any federal fiscal
year in which the system is not funded by the Federal Government.
The bill also revises definitions as follows:
Revises the definition of “employee” to:
o Address individuals filling permanent positions.
Defines “public agency" as any office, department, agency, division, subdivision, political
subdivision, board, bureau, commission, authority, district, public body, body politic, state,
county, city, town, village, municipality, or any other separate unit of government created or
established pursuant to law, and any other public or private agency, person, partnership,
corporation, or business entity acting on behalf of any public agency.
Revises the definition of “unauthorized alien” to reference individuals instead of persons.
Admission to Practice Law
The bill repeals the provisions that allow an applicant to the Florida Bar who is an unauthorized
immigrant to be admitted to the Bar by the Florida Supreme Court if certain conditions are met. The bill
specifies that such repeal does not affect the validity of any license to practice law issued pursuant to
this provision before November 1, 2028.
Human Smuggling
The bill clarifies current prohibitions against human smuggling to specify that the law applies to persons
who knowingly and willfully transport individuals into this state that the person reasonably should
know has entered the United States in violation of law and has not been inspected by the United States
Government since her or her unlawful entry.
Under the bill, a violation for human smuggling remains a third degree felony. The bill strengthens
penalties for human smuggling, making it a second degree felony180 in the following cases:
Transporting a minor into the state in violation of the human smuggling provisions.
Committing five or more separate offenses of human smuggling during a single episode.
Committing subsequent violations with a prior conviction.
180 A second degree felony is punishable by up to 15 years imprisonment and a $10,000 fine. Ss. 775.082, 775.083, or 775.084, F.S.
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The bill provides that proof that a person knowingly and willfully presented false identification or gave
false information to a law enforcement officer who is conducting an investigation for a violation of these
provisions gives rise to an inference that such person was aware that the transported, concealed,
harbored, or shielded individual has entered the United States in violation of the law and had not been
inspected by the Federal Government since his or her unlawful entry.
The bill requires a person arrested for a human smuggling offense to be held in custody until brought
before the court for admittance to pretrial release in accordance with ch. 903, F.S., which is the chapter
of law governing bail.
The bill adds the crime of human smuggling to the list of crimes that allow for prosecution under the
RICO Act.
Cooperation with Federal Immigration Authorities
The bill adds to the actions a law enforcement agency may take regarding a person’s immigration
status. Specifically, the bill allows a law enforcement agency to send relevant information obtained
pursuant to enforcement of the E-Verify requirements to a federal immigration agency.181
FDLE Domestic Security
The bill adds immigration coordination and assistance with the Federal Government in the enforcement
of federal immigration laws and response to immigration incidents that are within or affecting the state
to FDLE’s duties with respect to domestic security.
Domestic Security
The bill amends FDLE’s domestic security statutes to provide the necessary authority for the
department to coordinate with and provide assistance to the Federal Government in the enforcement of
federal immigration laws, responses to immigration enforcement incidents within or affecting the s tate.
Specifically, the bill:
Revises Legislative findings to include immigration enforcement coordination and assistance to
the Federal Government in the enforcement of federal immigration laws, and responses to
immigration enforcement incidents within or affecting the state.
Requires the Chief of Domestic Security of FDLE to ensure compliance with the E-Verify
requirements, by regularly coordinating random audits and notifying the DEO of any violations
found.
Requires the regional domestic security task forces to:
o Cooperate with and provide assistance to the Federal Government in the enforcement of
federal immigration laws within or affecting Florida;
o Facilitate responses to immigration enforcement incidents within or affecting Florida;
o Establish training standards including curricula and materials related to effective
response to immigration enforcement incidents; and
o Work to ensure that hate-driven acts against ethnic groups that may have been targeted
as a result of immigration enforcement incidents within or affecting Florida are
appropriately investigated and responded to.
Requires the domestic security oversight council to:
o Include the need of executive direction and leadership as it relates to immigration
enforcement incidents to the council’s legislative findings;
181 S. 908.102(1),F.S., defines “federal immigration agency” as the United States Department of Justice and the United States
Department of Homeland Security, a division within such an agency, including United States Immigration and Customs Enforcemen t
and United States Customs and Border Protection, any successor agen cy, and any other federal agency charged with the enforcement
of immigration law.
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o Include in their guidance to the regional domestic security task forces and other
domestic security working groups recommendations to the Governor and the Legislature
regarding expenditure of funds and resources related to cooperating with and providing
assistance to the Federal Government in the enforcement of federal immigration laws.
Include representatives from the DHS, ICE, and U.S. Customs and Border Protection as
nonvoting members of the council.
Specify immigration enforcement incidents and coordination with and providing assistance to
the Federal Government in the enforcement of federal immigration laws are part of the council’s
duties of oversight of the state’s domestic security efforts.
Statewide DNA Database
The bill expands the definition of a “qualifying offender” who is subject to having a DNA sample taken
and submitted to the statewide database when the offender is a person:
Who is:
o Committed to a county jail;
o Committed to or under the supervision of the Department of Corrections, including a
private correctional institution;
o Committed to or under the supervision of the Department of Juvenile Justice; or
o Transferred to Florida under the Interstate Compact on Juveniles or the Interstate
Corrections Compact; and
Who is in the custody of a law enforcement agency and is subject to an immigration detainer
issued by a federal immigration agency.
The bill requires a person who becomes a qualifying offender solely because of the issuance of an
immigration detainer by a federal immigration agency to submit a DNA sample, and the law
enforcement agency to immediately take the DNA sample, when the law enforcement agency having
custody of the offender receives the detainer. Additionally, the bill requires the agency to secure and
transmit the sample to FDLE in a timely manner.
Unauthorized Alien Transport Program Appropriation
For the 2023-2024 fiscal year, the bill appropriates a nonrecurring sum of $12 million from the General
Revenue Fund to the Division of Emergency Management within the Executive Office of the Governor
for the Unauthorized Alien Transport Program.
Effective Date
The bill provides an effective date of July 1, 2023, except as otherwise expressly provided.
B. SECTION DIRECTORY:
Section 1. Creates s. 125.0156, F.S., relating to restrictions on providing funds for identification
documents.
Section 2. Creates s. 166.246, F.S., relating to restrictions on providing funds for identification
documents.
Section 3. Creates s. 322.033, F.S., relating to unauthorized aliens; invalid out-of-state driver
licenses.
Section 4. Amends s. 322.04, F.S., relating to persons exempt from obtaining a driver license.
Section 5. Creates s. 395.3027, F.S., relating to patient immigration status data collection for
hospitals that accept Medicaid.
Section 6. Amends s. 448.09, F.S., relating to unauthorized aliens; employment prohibited.
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Section 7 Amends s. 448.095, F.S., relating to private employer’s requirements of using the E-
Verify system.
Section 8. Amends s. 454.021, F.S., relating to the authority for an unauthorized immigrant to
obtain a license to practice law in this state.
Section 9. Provides applicability relating to the revision to s. 454.021, F.S.
Section 10. Amends s. 787.07, F.S., relating to human smuggling.
Section 11: Amends s. 895.02, F.S., relating to racketeering activity.
Section 12. Amends s. 908.104, F.S., relating to cooperation with federal immigration authorities.
Section 13: Amends s. 943.03, F.S., relating to the Department of Law Enforcement.
Section 14: Amends s. 943.03101, F.S., relating to counter-terrorism and immigration enforcement.
Section 15: Amends s. 943.0311, F.S., relating to Chief of Domestic Security; duties of FDLE with
respect to domestic security.
Section 16: Amends s. 943.0312, F.S., relating to regional domestic security task forces.
Section 17: Amends s. 943.0313, F.S., relating to Domestic Security Oversight Council.
Section 18: Amends s. 943.325, F.S., relating to DNA database.
Section 19: Amends s. 394.9082, F.S., conforming provisions relating to behavioral health managing
entities.
Section 20: Amends s. 409.996, F.S., conforming provisions relating to Duties of the Department of
Children and Families.
Section 21. Prohibits an appropriation to the Division of Emergency Management.
Section 22. Provides an effective date of July 1, 2023, except as otherwise provided.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
Indeterminate.
2. Expenditures:
For the 2023-2024 fiscal year, provides a $12 million nonrecurring appropriation to the Division of
Emergency Management for the Unauthorized Alien Transport Program.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
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Indeterminate. Local governments that administer a community ID card program may experience a
reduction in expenditures resulting from being prohibited from funding such programs.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Businesses may have additional workload related to the employment verification requirements and may
be subject to fines related to employment verification violations.
Hospitals may be required to change their forms.
The bill may reduce criminal conduct and related negative social and economic impacts.
D. FISCAL COMMENTS:
The bill may have an indeterminate fiscal impact on state agencies related to enforcement of the
provisions in the bill.
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:
AHCA is authorized to adopt rules specific to the format of the quarterly report and the format of the
question that hospitals must include on their admission or registration forms.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
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1 A bill to be entitled
2 An act relating to immigration; creating ss. 125.0156
3 and 166.246, F.S.; prohibiting counties and
4 municipalities, respectively, from providing funds to
5 any person, entity, or organization to issue
6 identification documents to an individual who does not
7 provide proof of lawful presence in the United States;
8 creating s. 322.033, F.S.; specifying that certain
9 driver licenses and permits issued by other states
10 exclusively to unauthorized immigrants are not valid
11 in this state; requiring law enforcement officers and
12 authorized representatives of the Department of
13 Highway Safety and Motor Vehicles to cite a person
14 driving with a specified invalid license; requiring
15 the department to maintain a list on its website of
16 out-of-state classes of driver licenses that are
17 invalid in this state; amending s. 322.04, F.S.;
18 revising the circumstances under which certain persons
19 are exempt from obtaining a driver license; creating
20 s. 395.3027, F.S.; requiring certain hospitals to
21 collect patient immigration status data information on
22 admission or registration forms; requiring hospitals
23 to submit quarterly reports to the Agency for Health
24 Care Administration containing specified information;
25 requiring the agency to submit an annual report to the
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26 Governor and the Legislature containing specified
27 information; authorizing the agency to adopt rules;
28 prohibiting rules requiring the disclosure of certain
29 information; amending s. 448.09, F.S.; requiring the
30 Department of Economic Opportunity to enter a certain
31 order and require repayment of certain economic
32 development incentives if the department finds or is
33 notified that an employer has knowingly employed an
34 unauthorized alien without verifying the employment
35 eligibility of such person; deleting provisions
36 relating to a first violation of specified provisions;
37 providing penalties, including a probationary period
38 and suspension and revocation of all licenses of
39 employers; deleting criminal penalties for second and
40 subsequent violations of specified provisions;
41 deleting a provision providing construction; providing
42 criminal penalties for certain aliens who knowingly
43 use false identification documents or who fraudulently
44 use identification documents of another person for the
45 purpose of obtaining employment; making technical
46 changes; amending s. 448.095, F.S.; revising
47 definitions; requiring an employer to verify a new
48 employee's employment eligibility within 3 business
49 days after the first day the new employee begins
50 working for pay; requiring public agencies to use the
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51 E-Verify system to verify a new employee's employment
52 eligibility; requiring private employers with a
53 certain number of employees to use the E-Verify system
54 to verify a new employee's employment eligibility,
55 beginning on a certain date; requiring employers to
56 certify use of the E-Verify system on unemployment
57 compensation or reemployment assistance system
58 returns; requiring employers to use a certain form if
59 the E-Verify system is unavailable; requiring
60 employers to retain specified documentation for a
61 certain number of years; prohibiting an employer from
62 continuing to employ an unauthorized alien after
63 obtaining knowledge that a person is or has become an
64 unauthorized alien; providing an exception;
65 authorizing specified persons or entities to request,
66 and requiring an employer to provide, copies of
67 specified documentation; creating a certain rebuttable
68 presumption that the employer has not violated
69 specified provisions with respect to the employment of
70 an unauthorized alien; establishing an affirmative
71 defense to an allegation that the employer has not
72 violated specified provisions with respect to the
73 employment of an unauthorized alien; requiring a
74 public agency to require in any contract that a
75 contractor or subcontractor register with and use the
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76 E-Verify system; prohibiting a public agency,
77 contractor, or subcontractor from entering into a
78 contract unless each party to the contract registers
79 with and uses the E-Verify system; requiring the
80 termination of certain contracts under specified
81 conditions; authorizing a public agency, contractor,
82 or subcontractor to file a cause of action to
83 challenge a termination; specifying required
84 departmental action to ensure compliance with
85 specified provisions; requiring the department to
86 impose fines against employers under certain
87 circumstances; providing for the deposit of such
88 fines; providing construction; conforming provisions
89 to changes made by the act; amending s. 454.021, F.S.;
90 deleting a provision authorizing an unauthorized
91 immigrant to obtain a license to practice law in this
92 state under certain circumstances; providing
93 applicability; amending s. 787.07, F.S.; providing
94 criminal penalties for persons who knowingly and
95 willfully violate, or who reasonably should know and
96 violate, certain provisions relating to the
97 transporting into this state of individuals who
98 entered the United States unlawfully and without
99 inspection by the Federal Government; providing
100 criminal penalties for persons who transport minors
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101 into this state in violation of certain provisions;
102 providing for enhanced criminal penalties; defining
103 the term "conviction"; providing circumstances that
104 give rise to a certain inference; requiring that
105 persons who violate certain provisions be held in
106 custody; making technical changes; amending s. 895.02,
107 F.S.; revising the definition of the term
108 "racketeering activity"; amending s. 908.104, F.S.;
109 specifying that a state entity, local governmental
110 entity, or law enforcement agency, or an employee, an
111 agent, or a representative of the entity or agency,
112 may not prohibit or in any way restrict a law
113 enforcement agency from sending the applicable
114 information obtained pursuant to certain provisions to
115 a federal immigration agency; amending s. 943.03,
116 F.S.; requiring the Department of Law Enforcement to
117 coordinate and direct the law enforcement, initial
118 emergency, and other initial responses in matters
119 dealing with the Federal Government in federal
120 immigration law enforcement and responses to
121 immigration enforcement incidents within or affecting
122 this state; amending s. 943.03101, F.S.; revising
123 legislative findings and determinations; amending s.
124 943.0311, F.S.; revising the required duties of the
125 Chief of Domestic Security; requiring the chief to
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126 regularly coordinate random audits pursuant to
127 specified provisions and notify the Department of
128 Economic Opportunity of any violations; amending s.
129 943.0312, F.S.; revising legislative findings;
130 requiring that each task force cooperate with and
131 provide assistance to the Federal Government in the
132 enforcement of federal immigration laws within or
133 affecting this state in compliance with specified
134 provisions, in accordance with the state's domestic
135 security strategic goals and objectives; requiring the
136 Chief of Domestic Security to, in conjunction with
137 specified entities, identify appropriate equipment and
138 training needs, curricula, and materials related to
139 the effective response to immigration enforcement
140 incidents; requiring that each regional domestic
141 security task force, working in conjunction with
142 specified entities, work to ensure that hate-driven
143 acts against ethnic groups that may have been targeted
144 as a result of immigration enforcement incidents
145 within or affecting this state are appropriately
146 investigated and responded to; amending s. 943.0313,
147 F.S.; revising legislative findings; requiring the
148 Domestic Security Oversight Council to make
149 recommendations to the Governor and the Legislature
150 regarding the expenditure of funds and allocation of
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151 resources related to cooperating with and providing
152 assistance to the Federal Government in the
153 enforcement of federal immigration laws; expanding the
154 list of persons whom the council may invite to attend
155 and participate in its meetings as ex officio,
156 nonvoting members; revising the duties of the council;
157 amending s. 943.325, F.S.; revising the definition of
158 the term "qualifying offender" to include certain
159 persons who are the subject of an immigration detainer
160 issued by a federal immigration agency; requiring
161 certain qualifying offenders to submit DNA samples at
162 a specified time; requiring law enforcement agencies
163 to immediately take DNA samples from certain
164 qualifying offenders under certain circumstances;
165 amending ss. 394.9082 and 409.996, F.S.; conforming
166 provisions to changes made by the act; providing an
167 appropriation; providing an effective date.
168
169 Be It Enacted by the Legislature of the State of Florida:
170
171 Section 1. Section 125.0156, Florida Statutes, is created
172 to read:
173 125.0156 Restriction on providing funds for identification
174 documents.—A county may not provide funds to any person, entity,
175 or organization for the purpose of issuing an identification
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176 card or document to an individual who does not provide proof of
177 lawful presence in the United States.
178 Section 2. Section 166.246, Florida Statutes, is created
179 to read:
180 166.246 Restriction on providing funds for identification
181 documents.—A municipality may not provide funds to any person,
182 entity, or organization for the purpose of issuing an
183 identification card or document to an individual who does not
184 provide proof of lawful presence in the United States.
185 Section 3. Section 322.033, Florida Statutes, is created
186 to read:
187 322.033 Unauthorized aliens; invalid out-of-state driver
188 licenses.—
189 (1) If a driver license is of a class of licenses issued
190 by another state exclusively to undocumented immigrants who are
191 unable to prove lawful presence in the United States when the
192 licenses are issued, the driver license, or other permit
193 purporting to authorize the holder to operate a motor vehicle on
194 public roadways, is invalid in this state and does not authorize
195 the holder to operate a motor vehicle in this state. Such
196 classes of licenses include licenses that are issued exclusively
197 to undocumented immigrants or licenses that are substantially
198 the same as licenses issued to citizens, residents, or those
199 lawfully present in the United States but have markings
200 establishing that the license holder did not exercise the option
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201 of providing proof of lawful presence.
202 (2) A law enforcement officer or other authorized
203 representative of the department who stops a person driving with
204 an invalid license as described in subsection (1) and driving
205 without a valid license shall issue a citation to the driver for
206 driving without a license in violation of s. 322.03.
207 (3) The department, to facilitate the enforcement of this
208 section and to aid in providing notice to the public and
209 visitors of invalid licenses, shall maintain on its website a
210 list of out-of-state classes of driver licenses that are invalid
211 in this state.
212 Section 4. Section 322.04, Florida Statutes, is amended to
213 read:
214 322.04 Persons exempt from obtaining driver license. —
215 (1) The following persons are exempt from obtaining a
216 driver license:
217 (a) Any employee of the United States Government, while
218 operating a noncommercial motor vehicle owned by or leased to
219 the United States Government and being operated on official
220 business.
221 (b) Any person while driving or operating any road
222 machine, farm tractor, or implement of husbandry temporarily
223 operated or moved on a highway.
224 (c) A nonresident who is at least 16 years of age and who
225 has in his or her immediate possession a valid noncommercial
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226 driver license issued to the nonresident in his or her home
227 state or country operating a motor vehicle of the type for which
228 a Class E driver license is required in this state, if the
229 nonresident's license is not invalid under s. 322.033 relating
230 to proof of the licensee's lawful presence in the United States .
231 (d) A nonresident who is at least 18 years of age and who
232 has in his or her immediate possession a valid noncommercial
233 driver license issued to the nonresident in his or her home
234 state or country operating a motor vehicle, other than a
235 commercial motor vehicle, in this state, if the nonresident's
236 license is not invalid under s. 322.033 relating to proof of the
237 licensee's lawful presence in the United States.
238 (e) Any person operating a golf cart, as defined in s.
239 320.01, which is operated in accordance with the provisions of
240 s. 316.212.
241 (2) This section does not apply to any person to whom s.
242 322.031 applies.
243 (3) Any person working for a firm under contract to the
244 United States Government whose residence is outside this state
245 and whose main point of employment is outside this state may
246 drive a noncommercial vehicle on the public roads of this state
247 for periods up to 60 days while in this state on temporary duty,
248 if the person has a valid driver license from the state of the
249 person's residence and if the license is not invalid under s.
250 322.033 relating to proof of the licensee's lawful presence in
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251 the United States.
252 Section 5. Section 395.3027, Florida Statutes, is created
253 to read:
254 395.3027 Patient immigration status data collection. —
255 (1) Each hospital that accepts Medicaid must include a
256 provision on its patient admission or registration forms for the
257 patient or the patient's representative to state or indicate
258 whether the patient is a United States citizen or lawfully
259 present in the United States or is not lawfully present in the
260 United States. The inquiry must be followed by a statement that
261 the response will not affect patient care or result in a report
262 of the patient's immigration status to immigration authorities.
263 (2) Each hospital must submit a quarterly report to the
264 agency within 30 days after the end of each calendar quarter
265 which reports the number of hospital admissions or emergency
266 department visits within the previous quarter which were made by
267 a patient who indicated that he or she was a citizen of the
268 United States or lawfully present in the United States, was not
269 lawfully present in the United States, or declined to answer.
270 (3) By March 1 of each year, the agency shall submit a
271 report to the Governor, the President of the Senate, and the
272 Speaker of the House of Representatives which includes the total
273 number of hospital admissions and emergency department visits
274 for the previous calendar year for which the patient or
275 patient's representative reported that the patient was a citizen
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276 of the United States or lawfully present in the United States,
277 was not lawfully present in the United States, or declined to
278 answer. The report must also describe information relating to
279 the costs of uncompensated care for aliens who are not lawfully
280 present in the United States, the impact of uncompensated care
281 on the cost or ability of hospitals to provide services to the
282 public, hospital funding needs, and other related information.
283 (4) The agency may adopt rules relating to the format and
284 information to be contained in quarterly reports and the
285 acceptable formats for hospitals to use in requesting
286 information regarding a patient's immigration status on hospital
287 admission or registration forms. The rules may not require the
288 disclosure of patient names or any other personal identifying
289 information to the agency.
290 Section 6. Effective July 1, 2024, section 448.09, Florida
291 Statutes, is amended to read:
292 448.09 Unauthorized aliens; employment prohibited. —
293 (1) It is shall be unlawful for any person to knowingly to
294 employ, hire, recruit, or refer, either for herself or himself
295 or on behalf of another, for private or public employment within
296 this the state, an alien who is not duly authorized to work by
297 the immigration laws of the United States, or the Attorney
298 General of the United States, or the United States Secretary of
299 the Department of Homeland Security.
300 (2) If the Department of Economic Opportunity finds or is
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301 notified by an entity specified in s. 448.095(3)(a) that an
302 employer has knowingly employed an unauthorized alien without
303 verifying the employment eligibility of such person, the
304 department must enter an order pursuant to chapter 120 making
305 such determination and require repayment of any economic
306 development incentive pursuant to s. 288.061(6) The first
307 violation of subsection (1) shall be a noncriminal violation as
308 defined in s. 775.08(3) and, upon conviction, shall be
309 punishable as provided in s. 775.082(5) by a civil fine of not
310 more than $500, regardless of the number of aliens with respect
311 to whom the violation occurred.
312 (3) For a violation of this section, the department shall
313 place the employer on probation for a 1-year period and require
314 that the employer report quarterly to the department to
315 demonstrate compliance with the requirements of subsection (1)
316 and s. 448.095.
317 (4) Any violation of this section which takes place within
318 24 months after a previous violation constitutes grounds for the
319 suspension or revocation of all licenses issued by a licensing
320 agency subject to chapter 120. The department shall take the
321 following actions for a violation involving:
322 (a) One to 10 unauthorized aliens, suspension of all
323 applicable licenses held by a private employer for up to 30 days
324 by the respective agencies that issued them.
325 (b) Eleven to 50 unauthorized aliens, suspension of all
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326 applicable licenses held by a private employer for up to 60 days
327 by the respective agencies that issued them.
328 (c) More than 50 unauthorized aliens, revocation of all
329 applicable licenses held by a private employer by the respective
330 agencies that issued them Any person who has been previously
331 convicted for a violation of subsection (1) and who thereafter
332 violates subsection (1), shall be guilty of a misdemeanor of the
333 second degree, punishable as provided in s. 775.082 or s.
334 775.083. Any such subsequent violation of this section shall
335 constitute a separate offense with respect to each unauthorized
336 alien.
337 (5) An alien who is not duly authorized to work by the
338 immigration laws of the United States, the Attorney General of
339 the United States, or the United States Secretary of the
340 Department of Homeland Security and who knowingly uses a false
341 identification document or who fraudulently uses an
342 identification document of another person for the purpose of
343 obtaining employment commits a felony of the third degree,
344 punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
345 Section 7. Effective upon becoming law, section 448.095,
346 Florida Statutes, is amended to read:
347 (Substantial rewording of section. See
348 s. 448.095, F.S., for present text.)
349 448.095 Employment eligibility.—
350 (1) DEFINITIONS.—As used in this section, the term:
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351 (a) "Contractor" means a person or an entity that has
352 entered or is attempting to enter into a contract with a public
353 agency to provide labor, supplies, or services to such agency in
354 exchange for salary, wages, or other remuneration.
355 (b) "Employee" means an individual filling a permanent
356 position who performs labor or services under the control or
357 direction of an employer that has the power or right to control
358 and direct the employee in the material details of how the work
359 is to be performed in exchange for salary, wages, or other
360 remuneration. An individual hired for casual labor, as defined
361 in s. 443.036, which is to be performed entirely within a
362 private residence is not an employee of an occupant or owner of
363 a private residence. An independent contractor, as defined in
364 federal laws or regulations, hired to perform a specified
365 portion of labor or services is not an employee.
366 (c) "E-Verify system" means an Internet-based system
367 operated by the United States Department of Homeland Securit y
368 which allows participating employers to electronically verify
369 the employment eligibility of new employees.
370 (d) "Public agency" means any office, department, agency,
371 division, subdivision, political subdivision, board, bureau,
372 commission, authority, district, public body, body politic,
373 state, county, city, town, village, municipality, or any other
374 separate unit of government created or established pursuant to
375 law, and any other public or private agency, person,
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376 partnership, corporation, or business entity acting on behalf of
377 any public agency.
378 (e) "Subcontractor" means a person or an entity that
379 provides labor, supplies, or services to or for a contractor or
380 another subcontractor in exchange for salary, wages, or other
381 remuneration.
382 (f) "Unauthorized alien" means an individual who is not
383 authorized under federal law to be employed in the United
384 States, as described in 8 U.S.C. s. 1324a(h)(3). The term must
385 be interpreted consistently with that section and any applicable
386 federal rules or regulations.
387 (2) EMPLOYMENT VERIFICATION.—
388 (a) An employer shall verify each new employee's
389 employment eligibility within 3 business days after the first
390 day that the new employee begins working for pay as required
391 under 8 C.F.R. s. 274a.
392 (b)1. A public agency shall use the E-Verify system to
393 verify a new employee's employment eligibility as required under
394 paragraph (a).
395 2. Beginning on July 1, 2023, a private employer with 25
396 or more employees shall use the E-Verify system to verify a new
397 employee's employment eligibility as required under paragraph
398 (a).
399 3. Each employer required to use the E-Verify system under
400 this paragraph must certify on its first return each calendar
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401 year to the tax service provider that it is in compliance with
402 this section when making contributions to or reimbursing the
403 state's unemployment compensation or reemployment assistance
404 system. An employer that voluntarily uses the E-Verify system
405 may also make such a certification on its first return each
406 calendar year in order to document such use.
407 (c) If the E-Verify system is unavailable for 3 business
408 days after the first day that the new employee begins working
409 for pay and an employer cannot access the system to verify a new
410 employee's employment eligibility, the employer must use the
411 Employment Eligibility Verification form (Form I-9) to verify
412 employment eligibility. The unavailability of the E -Verify
413 system does not bar the employer from using the rebuttable
414 presumption established in paragraph (4)(a). An employer must
415 document the unavailability of the E-Verify system by retaining
416 a screenshot from each day which shows the employer's lack of
417 access to the system, a public announcement that the E-Verify
418 system is not available, or any other communication or notice
419 recorded by the employer regarding the unavailability of the
420 system.
421 (d) The employer must retain a copy of the documentation
422 provided and any official verification generated, if applicable,
423 for at least 3 years.
424 (e) An employer may not continue to employ an unauthorized
425 alien after obtaining knowledge that a person is or has become
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426 an unauthorized alien.
427 (f) An employee leasing company licensed under part XI of
428 chapter 468 which enters into a written agreement or
429 understanding with a client company which places the primary
430 obligation for compliance with this section upon the client
431 company is not required to verify employment eligibility of any
432 new employees of the client company. In the absence of a written
433 agreement or understanding, the employee leasing company is
434 responsible for compliance with this section. Such employee
435 leasing company shall, at all times, remain an employer as
436 otherwise defined in federal laws or regulations.
437 (3) ENFORCEMENT.—
438 (a) For the purpose of enforcement of this section, any of
439 the following persons or entities may request, and an employer
440 must provide, copies of any documentation relied upon by the
441 employer for the verification of a new employee's employment
442 eligibility:
443 1. The Department of Law Enforcement;
444 2. The Attorney General;
445 3. The state attorney in the circuit in which the new
446 employee works;
447 4. The statewide prosecutor; or
448 5. The Department of Economic Opportunity.
449 (b) A person or an entity that makes a request under
450 paragraph (a) must rely upon the Federal Government t o verify an
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451 employee's employment eligibility and may not independently make
452 a final determination as to whether an employee is an
453 unauthorized alien.
454 (4) DEFENSES.—
455 (a) An employer that uses the E-Verify system or, if that
456 system is unavailable, the Employment Eligibility Verification
457 form (Form I-9) as provided in paragraph (2)(c), with respect to
458 the employment of an unauthorized alien has established a
459 rebuttable presumption that the employer has not violated s.
460 448.09 with respect to such employment.
461 (b) An employer that uses the same documentation that is
462 required by the United States Citizenship and Immigration
463 Services on its Employment Eligibility Verification form (Form
464 I-9) with respect to the employment of an unauthorized alien,
465 has established an affirmative defense that the employer has not
466 violated s. 448.09 with respect to such employment.
467 (5) PUBLIC AGENCY CONTRACTING.—
468 (a) A public agency must require in any contract that the
469 contractor, and any subcontractor thereof, register with and use
470 the E-Verify system to verify the work authorization status of
471 all new employees of the contractor or subcontractor. A public
472 agency or a contractor or subcontractor thereof may not enter
473 into a contract unless each party to the contract registers with
474 and uses the E-Verify system.
475 (b) If a contractor enters into a contract with a
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476 subcontractor, the subcontractor must provide the contractor
477 with an affidavit stating that the subcontractor does not
478 employ, contract with, or subcontract with an unauthorized
479 alien. The contractor shall maintain a copy of such affidavit
480 for the duration of the contract.
481 (c)1. A public agency, contractor, or subcontractor who
482 has a good faith belief that a person or an entity with which it
483 is contracting has knowingly violated s. 448.09(1) shall
484 terminate the contract with the person or entity.
485 2. A public agency that has a good faith belief that a
486 subcontractor knowingly violated this subsection, but the
487 contractor otherwise complied with this subsection, shall
488 promptly notify the contractor and order the contractor to
489 immediately terminate the contract with the subcontractor.
490 3. A contract terminated under this paragraph is not a
491 breach of contract and may not be considered as such. If a
492 public agency terminates a contract with a contractor under this
493 paragraph, the contractor may not be awarded a public contract
494 for at least 1 year after the date on which the contract was
495 terminated. A contractor is liable for any additional costs
496 incurred by a public agency as a result of the termination of a
497 contract.
498 (d) A public agency, contractor, or subcontractor may file
499 a cause of action with a circuit or county court to challenge a
500 termination under paragraph (c) no later than 20 calendar days
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501 after the date on which the contract was terminated.
502 (6) COMPLIANCE.—
503 (a) In addition to the requirements under s. 288.061(6),
504 beginning on July 1, 2024, if the Department of Economic
505 Opportunity determines that an employer failed to use the E-
506 Verify system to verify the employment eligibility of employees
507 as required under this section, the department must notify the
508 employer of the department’s determination of noncompliance and
509 provide the employer with 30 days to cure the noncompliance.
510 (b) If the Department of Economic Opportunity determines
511 that an employer failed to use the E-Verify system as required
512 under this section three times in any 24-month period, the
513 department must impose a fine of $1,000 per day until the
514 employer provides sufficient proof to the department tha t the
515 noncompliance is cured. Noncompliance constitutes grounds for
516 the suspension of all licenses issued by a licensing agency
517 subject to chapter 120 until the noncompliance is cured.
518 (c) Fines collected under this subsection must be deposited
519 into the State Economic Enhancement and Development Trust Fund
520 for use by the department for employer outreach and public
521 notice of the state’s employment verification laws.
522 (7) CONSTRUCTION.—
523 (a) This section must be enforced without regard to race,
524 color, or national origin and must be construed in a manner so
525 as to be fully consistent with any applicable federal laws or
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526 regulations.
527 (b) The requirements to use the E-Verify system under this
528 section do not apply in any federal fiscal year in which the
529 system is not funded by the Federal Government.
530 (c) This section shall expire 60 days after the E -Verify
531 system is no longer a pilot program, and the Federal Government
532 requires the use of the E-Verify system by all employers in the
533 United States.
534 Section 8. Effective November 1, 2028, subsection (3) of
535 section 454.021, Florida Statutes, is amended to read:
536 454.021 Attorneys; admission to practice law; Supreme
537 Court to govern and regulate.—
538 (3) Upon certification by the Florida Board of Bar
539 Examiners that an applicant who is an unauthorized immigrant who
540 was brought to the United States as a minor; has been present in
541 the United States for more than 10 years; has received
542 documented employment authorization from the United States
543 Citizenship and Immigration Services (USCIS); has been issued a
544 social security number; if a male, has registered with the
545 Selective Service System if required to do so under the Military
546 Selective Service Act, 50 U.S.C. App. 453; and has fulfilled all
547 requirements for admission to practice law in this state, the
548 Supreme Court of Florida may admit that applicant as an attorney
549 at law authorized to practice in this state and may direct an
550 order be entered upon the court's records to that effect.
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551 Section 9. The repeal of s. 454.021(3), Florida Statutes,
552 by this act does not affect the validity of any license to
553 practice law issued pursuant to that subsection before November
554 1, 2028.
555 Section 10. Section 787.07, Florida Statutes, is amended
556 to read:
557 787.07 Human smuggling.—
558 (1) Except as provided in subsections (3), (4), and (5), a
559 person who knowingly and willfully transports into this state an
560 individual whom who the person knows, or reasonably should know,
561 has entered is illegally entering the United States in violation
562 of law and has not been inspected by the Federal Government
563 since his or her unlawful entry from another country commits a
564 felony of the third degree, punishable as provided in s.
565 775.082, s. 775.083, or s. 775.084.
566 (2) A person commits a separate offense for each
567 individual he or she transports into this state in violation of
568 this section.
569 (3) A person who transports a minor into this state in
570 violation of subsection (1) commits a felony of the second
571 degree, punishable as provided in s. 775.082, s. 775. 083, or s.
572 775.084.
573 (4) A person who commits five or more separate offenses
574 under this section during a single episode commits a felony of
575 the second degree, punishable as provided in s. 775.082, s.
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576 775.083, or s. 775.084.
577 (5)(a) A person with a prior conviction under this section
578 who commits a subsequent violation of this section commits a
579 felony of the second degree, punishable as provided in s.
580 775.082, s. 775.083, or s. 775.084.
581 (b) As used in paragraph (a), the term "conviction" means
582 a determination of guilt that is the result of a plea agreement
583 or a trial, regardless of whether adjudication is withheld or a
584 plea of nolo contendere is entered.
585 (6) Proof that a person knowingly and willfully presented
586 false identification or gave false information to a law
587 enforcement officer who is conducting an investigation for a
588 violation of this section gives rise to an inference that such
589 person was aware that the individual had entered the United
590 States in violation of the law and had not been inspected by the
591 Federal Government since his or her unlawful entry.
592 (7) A person who is arrested for a violation of this
593 section must be held in custody until brought before the court
594 for admittance to pretrial release in accordance with chapter
595 903.
596 Section 11. Paragraph (a) of subsection (8) of section
597 895.02, Florida Statutes, is amended to read:
598 895.02 Definitions.—As used in ss. 895.01-895.08, the
599 term:
600 (8) "Racketeering activity" means to commit, to attempt to
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601 commit, to conspire to commit, or to solicit, coerce, or
602 intimidate another person to commit:
603 (a) Any crime that is chargeable by petition, indictment,
604 or information under the following provisions of the Florida
605 Statutes:
606 1. Section 210.18, relating to evasion of payment of
607 cigarette taxes.
608 2. Section 316.1935, relating to fleeing or attempting to
609 elude a law enforcement officer and aggravated fleeing or
610 eluding.
611 3. Chapter 379, relating to the illegal sale, purchase,
612 collection, harvest, capture, or possession of wild animal life,
613 freshwater aquatic life, or marine life, and related crimes.
614 4. Section 403.727(3)(b), relating to environmental
615 control.
616 5. Section 409.920 or s. 409.9201, relating to Medicaid
617 fraud.
618 6. Section 414.39, relating to public assistance fraud.
619 7. Section 440.105 or s. 440.106, relating to workers'
620 compensation.
621 8. Section 443.071(4), relating to creation of a
622 fictitious employer scheme to commit reemployment assistance
623 fraud.
624 9. Section 465.0161, relating to distribution of medicinal
625 drugs without a permit as an Internet pharmacy.
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626 10. Section 499.0051, relating to crimes involving
627 contraband, adulterated, or misbranded drugs.
628 11. Part IV of chapter 501, relating to telemarketing.
629 12. Chapter 517, relating to sale of securities and
630 investor protection.
631 13. Section 550.235 or s. 550.3551, relating to dogracing
632 and horseracing.
633 14. Chapter 550, relating to jai alai frontons.
634 15. Section 551.109, relating to slot machine gaming.
635 16. Chapter 552, relating to the manufacture,
636 distribution, and use of explosives.
637 17. Chapter 560, relating to money transmitters, if the
638 violation is punishable as a felony.
639 18. Chapter 562, relating to beverage law enforcement.
640 19. Section 624.401, relating to transacting insurance
641 without a certificate of authority, s. 624.437(4)(c)1., relating
642 to operating an unauthorized multiple-employer welfare
643 arrangement, or s. 626.902(1)(b), relating to representing or
644 aiding an unauthorized insurer.
645 20. Section 655.50, relating to reports of currency
646 transactions, when such violation is punishable as a felony.
647 21. Chapter 687, relating to interest and usurious
648 practices.
649 22. Section 721.08, s. 721.09, or s. 721.13, relating to
650 real estate timeshare plans.
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651 23. Section 775.13(5)(b), relating to registration of
652 persons found to have committed any offense for the purpose of
653 benefiting, promoting, or furthering the interests of a criminal
654 gang.
655 24. Section 777.03, relating to commission of crimes by
656 accessories after the fact.
657 25. Chapter 782, relating to homicide.
658 26. Chapter 784, relating to assault and battery.
659 27. Chapter 787, relating to kidnapping, human smuggling,
660 or human trafficking.
661 28. Chapter 790, relating to weapons and firearms.
662 29. Chapter 794, relating to sexual battery, but only if
663 such crime was committed with the intent to benefit, promote, or
664 further the interests of a criminal gang, or for the purpose of
665 increasing a criminal gang member's own standing or position
666 within a criminal gang.
667 30. Former s. 796.03, former s. 796.035, s. 796.04 , s.
668 796.05, or s. 796.07, relating to prostitution.
669 31. Chapter 806, relating to arson and criminal mischief.
670 32. Chapter 810, relating to burglary and trespass.
671 33. Chapter 812, relating to theft, robbery, and related
672 crimes.
673 34. Chapter 815, relating to computer-related crimes.
674 35. Chapter 817, relating to fraudulent practices, false
675 pretenses, fraud generally, credit card crimes, and patient
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676 brokering.
677 36. Chapter 825, relating to abuse, neglect, or
678 exploitation of an elderly person or disabled adult.
679 37. Section 827.071, relating to commercial sexual
680 exploitation of children.
681 38. Section 828.122, relating to fighting or baiting
682 animals.
683 39. Chapter 831, relating to forgery and counterfeiting.
684 40. Chapter 832, relating to issuance of worthless checks
685 and drafts.
686 41. Section 836.05, relating to extortion.
687 42. Chapter 837, relating to perjury.
688 43. Chapter 838, relating to bribery and misuse of public
689 office.
690 44. Chapter 843, relating to obstruction of justice.
691 45. Section 847.011, s. 847.012, s. 847.013, s. 847.06, or
692 s. 847.07, relating to obscene literature and profanity.
693 46. Chapter 849, relating to gambling, lottery, gambling
694 or gaming devices, slot machines, or any of the provisions
695 within that chapter.
696 47. Chapter 874, relating to criminal gangs.
697 48. Chapter 893, relating to drug abuse prevention and
698 control.
699 49. Chapter 896, relating to offenses related to financial
700 transactions.
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701 50. Sections 914.22 and 914.23, relating to tampering with
702 or harassing a witness, victim, or informant, and retaliation
703 against a witness, victim, or informant.
704 51. Sections 918.12 and 918.13, relating to tampering with
705 jurors and evidence.
706 Section 12. Paragraph (f) is added to subsection (2) of
707 section 908.104, Florida Statutes, to read:
708 908.104 Cooperation with federal immigration authorities. —
709 (2) Except as otherwise expressly prohibited by federal
710 law, a state entity, local governmental entity, or law
711 enforcement agency, or an employee, an agent, or a
712 representative of the entity or agency, may not prohibit or in
713 any way restrict a law enforcement agency from taking any of the
714 following actions with respect to information regarding a
715 person's immigration status:
716 (f) Sending the applicable information obtained pursuant
717 to enforcement of s. 448.095 to a federal immigration agency.
718 Section 13. Subsection (14) of section 943.03, Florida
719 Statutes, is amended to read:
720 943.03 Department of Law Enforcement.—
721 (14) The department, with respect to counter-terrorism
722 efforts, responses to acts of terrorism within or affecting this
723 state, coordinating with and providing assistance to the Federal
724 Government in the enforcement of federal immigration laws,
725 responses to immigration enforcement incidents within or
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726 affecting this state, and other matters related to the domestic
727 security of Florida as it relates to terrorism and immigration
728 enforcement incidents, shall coordinate and direct the law
729 enforcement, initial emergency, and other initial responses. The
730 department shall work closely with the Division of Emergency
731 Management, other federal, state, and local law enforcement
732 agencies, fire and rescue agencies, first-responder agencies,
733 and others involved in preparation against acts of terrorism in
734 or affecting this state, immigration enforcement incidents
735 within or affecting this state, and in the response to such acts
736 or incidents. The executive director of the department, or
737 another member of the department designated by the director,
738 shall serve as Chief of Domestic Security for the purpose of
739 directing and coordinating such efforts. The department and
740 Chief of Domestic Security shall use the regional domestic
741 security task forces as established in this chapter to assist in
742 such efforts.
743 Section 14. Section 943.03101, Florida Statutes, is
744 amended to read:
745 943.03101 Counter-terrorism and immigration enforcement
746 coordination.—The Legislature finds that with respect to
747 counter-terrorism efforts, and initial responses to acts of
748 terrorism within or affecting this state, coordinating with and
749 providing assistance to the Federal Government in the
750 enforcement of federal immigration laws, and responses to
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751 immigration enforcement incidents within or affecting this
752 state, specialized efforts of emergency management which are
753 unique to such situations are required and that these efforts
754 intrinsically involve very close coordination of federal, state,
755 and local law enforcement agencies with the efforts of all
756 others involved in emergency-response efforts. In order to best
757 provide this specialized effort, the Legislature has determined
758 that such efforts should be coordinated by and through the
759 Department of Law Enforcement, working closely with the Division
760 of Emergency Management and others involved in preparation
761 against acts of terrorism in or affecting this state,
762 immigration enforcement incidents within or affecting this
763 state, and in the initial response to such acts, in accordance
764 with the state comprehensive emergency management plan prepared
765 pursuant to s. 252.35(2)(a).
766 Section 15. Present subsections (2) through (7) of section
767 943.0311, Florida Statutes, are redesignated as subsections (3)
768 through (8), respectively, a new subsection (2) is added to that
769 section, and subsection (1) and present subsection (3) of that
770 section are amended, to read:
771 943.0311 Chief of Domestic Security; duties of the
772 department with respect to domestic security.—
773 (1) The executive director of the department, or a member
774 of the department designated by the executive director, shall
775 serve as the Chief of Domestic Security. The Chief of Domestic
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776 Security shall:
777 (a) Coordinate the efforts of the department in the
778 ongoing assessment of this state's vulnerability to, and ability
779 to detect, prevent, prepare for, respond to, and recover from ,
780 acts of terrorism within or affecting this state and immigration
781 enforcement incidents within or affecting this state.
782 (b) Prepare recommendations for the Governor, the
783 President of the Senate, and the Speaker of the House of
784 Representatives, which are based upon ongoing assessments to
785 limit the vulnerability of the state to terrorism and
786 immigration enforcement incidents.
787 (c) Coordinate the collection of proposals to limit the
788 vulnerability of the state to terrorism and immigration
789 enforcement incidents.
790 (d) Use regional task forces to support the duties of the
791 department set forth in this section.
792 (e) Use public or private resources to perform the duties
793 assigned to the department under this section.
794 (2) The chief shall regularly coordinate random audits
795 pursuant to s. 448.095 to ensure compliance and enforcement and
796 shall notify the Department of Economic Opportunity of any
797 violations.
798 (4)(3) The chief shall report to the Governor, the
799 President of the Senate, and the Speaker of the House of
800 Representatives by November 1 of each year suggestions for
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801 specific and significant security enhancements of any building,
802 facility, or structure owned or leased by a state agency, state
803 university, or community college or any entity that has
804 conducted an assessment under subsection (6) (5). The chief may
805 utilize the assessments provided under subsection (6) (5) in
806 making his or her suggestions. The report shall suggest
807 strategies to maximize federal funds in support of building or
808 facility security if such funds are available.
809 Section 16. Section 943.0312, Florida Statutes, is amended
810 to read:
811 943.0312 Regional domestic security task forces.—The
812 Legislature finds that there is a need to develop and implement
813 a statewide strategy to address prevention, preparation,
814 protection, response, and recovery efforts by federal, state,
815 and local law enforcement agencies, emergency management
816 agencies, fire and rescue departments, first-responder
817 personnel, and others in dealing with potential or actual
818 terrorist acts within or affecting this state and potential or
819 actual immigration enforcement incidents within or affe cting
820 this state.
821 (1) To assist the department and the Chief of Domestic
822 Security in performing their roles and duties in this regard,
823 the department shall establish a regional domestic security task
824 force in each of the department's operational regions. The task
825 forces shall serve in an advisory capacity to the department and
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826 the Chief of Domestic Security and shall provide support to the
827 department in its performance of functions pertaining to
828 domestic security.
829 (a) Subject to annual appropriation, the department shall
830 provide dedicated employees to support the function of each
831 regional domestic security task force.
832 (b) Each task force shall be co-chaired by the
833 department's special agent in charge of the operational region
834 in which the task force is located and by a local sheriff or
835 chief of police from within the operational region.
836 (c) Each task force membership may also include
837 representatives of state and local law enforcement agencies,
838 fire and rescue departments, or first-responder personnel;
839 representatives of emergency management agencies and health,
840 medical, and hospital agencies; representatives of local
841 emergency planning committees; and other persons as deemed
842 appropriate and necessary by the task force co-chairs.
843 (d) The co-chairs of each task force may appoint
844 subcommittees and subcommittee chairs as necessary in order to
845 address issues related to the various disciplines represented on
846 the task force, except that subcommittee chairs for emergency
847 management shall be appointed with the approval of the director
848 of the Division of Emergency Management. A subcommittee chair
849 shall serve at the pleasure of the co-chairs.
850 (2) In accordance with the state's domestic security
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851 strategic goals and objectives, each task force shall coordinate
852 efforts to counter terrorism, as defined by s. 775.30, and
853 cooperate with and provide assistance to the Federal Government
854 in the enforcement of federal immigration laws within or
855 affecting this state in compliance with chapter 908, among
856 local, state, and federal resources to ensure that such efforts
857 are not fragmented or unnecessarily duplicated; coordinate
858 training for local and state personnel to counter terrorism as
859 defined in by s. 775.30; and cooperate with and provide
860 assistance to the Federal Government in the enforcement of
861 federal immigration laws within or affecting this state in
862 compliance with chapter 908; coordinate the collection and
863 dissemination of investigative and intelligence information; and
864 facilitate responses to terrorist incidents within or affecting
865 each region and immigration enforcement incidents within or
866 affecting each region. With the approval of the Chief of
867 Domestic Security, the task forces may incorporate other
868 objectives reasonably related to the goals of enhancing the
869 state's domestic security and ability to detect, prevent, and
870 respond to acts of terrorism within or affecting this state or
871 immigration enforcement incidents within or affecting this
872 state. Each task force shall take into account the variety of
873 conditions and resources present within its region.
874 (3) The Chief of Domestic Security, in conjunction with
875 the Division of Emergency Management, the regional domestic
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876 security task forces, and the various state entities responsible
877 for establishing training standards applicable to state law
878 enforcement officers and fire, emergency, and first -responder
879 personnel shall identify appropriate equipment and training
880 needs, curricula, and materials related to the effective
881 response to suspected or actual acts of terrorism, immigration
882 enforcement incidents, or incidents involving real or hoax
883 weapons of mass destruction as defined in s. 790.166.
884 Recommendations for funding for purchases of equipment, delivery
885 of training, implementation of, or revision to basic or
886 continued training required for state licensure or
887 certification, or other related responses shall be made by the
888 Chief of Domestic Security to the Domestic Security Oversight
889 Council, the Executive Office of the Governor, the President of
890 the Senate, and the Speaker of the House of Representatives as
891 necessary to ensure that the needs of this state with regard to
892 the preparing, equipping, training, and exercising of response
893 personnel are identified and addressed. In making such
894 recommendations, the Chief of Domestic Security and the Division
895 of Emergency Management shall identify all funding sources that
896 may be available to fund such efforts.
897 (4) Each regional domestic security task force, working in
898 conjunction with the department, the Office of the Attorney
899 General, and other public or private entities, shall work to
900 ensure that hate-driven acts against ethnic groups that may have
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901 been targeted as a result of acts of terrorism in or affecting
902 this state, or as a result of immigration enforcement incidents
903 within or affecting this state, are appropriately investigated
904 and responded to.
905 (5) Members of each regional domestic security task force
906 may not receive any pay other than their salaries normally
907 received from their employers, but are entitled to reimbursement
908 for per diem and travel expenses in accordance with s. 112.061.
909 (6) Subject to annual appropriation, the department shall
910 provide staff and administrative support for the regional
911 domestic security task forces.
912 Section 17. Section 943.0313, Florida Statutes, is amended
913 to read:
914 943.0313 Domestic Security Oversight Council.—The
915 Legislature finds that there exists a need to provide executive
916 direction and leadership with respect to terrorism and
917 immigration enforcement incident prevention, preparation,
918 protection, response, and recovery efforts by state and local
919 agencies in this state. In recognition of this need, the
920 Domestic Security Oversight Council is hereby created. The
921 council shall serve as an advisory council pursuant to s.
922 20.03(7) to provide guidance to the state's regional domestic
923 security task forces and other domestic security working groups
924 and to make recommendations to the Governor and the Legislature
925 regarding the expenditure of funds and allocation of resources
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926 related to counter-terrorism and cooperating with and providing
927 assistance to the Federal Government in the enforcement of
928 federal immigration laws and domestic security efforts.
929 (1) MEMBERSHIP.—
930 (a) The Domestic Security Oversight Council shall consist
931 of the following voting members:
932 1. The executive director of the Department of Law
933 Enforcement.
934 2. The director of the Division of Emergency Management.
935 3. The Attorney General.
936 4. The Commissioner of Agriculture.
937 5. The State Surgeon General.
938 6. The Commissioner of Education.
939 7. The State Fire Marshal.
940 8. The adjutant general of the Florida National Guard.
941 9. The state chief information officer.
942 10. Each sheriff or chief of police who serves as a co -
943 chair of a regional domestic security task force pursua nt to s.
944 943.0312(1)(b).
945 11. Each of the department's special agents in charge who
946 serve as a co-chair of a regional domestic security task force.
947 12. Two representatives of the Florida Fire Chiefs
948 Association.
949 13. One representative of the Florida Police Chiefs
950 Association.
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951 14. One representative of the Florida Prosecuting
952 Attorneys Association.
953 15. The chair of the Statewide Domestic Security
954 Intelligence Committee.
955 16. One representative of the Florida Hospital
956 Association.
957 17. One representative of the Emergency Medical Services
958 Advisory Council.
959 18. One representative of the Florida Emergency
960 Preparedness Association.
961 19. One representative of the Florida Seaport
962 Transportation and Economic Development Council.
963 (b) In addition to the members designated in paragraph
964 (a), the council may invite other ex officio, nonvoting members
965 to attend and participate in council meetings. Those nonvoting
966 members may include, but need not be limited to:
967 1. The executive director of the Department of Highway
968 Safety and Motor Vehicles.
969 2. The Secretary of Health Care Administration.
970 3. The Secretary of Environmental Protection.
971 4. The director of the Division of Law Enforcement within
972 the Fish and Wildlife Conservation Commission.
973 5. A representative of the Commission on Human Relations.
974 6. A representative of the United States Coast Guard.
975 7. A United States Attorney from a federal judicial
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976 circuit within this state.
977 8. A special agent in charge from an office of the Federal
978 Bureau of Investigation within this state.
979 9. A representative of the United States Department of
980 Homeland Security.
981 10. A representative of United States Immigration and
982 Customs Enforcement.
983 11. A representative of United States Customs and Border
984 Protection.
985 (2) ORGANIZATION.—
986 (a) The Legislature finds that the council serves a
987 legitimate state, county, and municipal purpose and that service
988 on the council is consistent with a member's principal service
989 in public office or employment. Membership on the council does
990 not disqualify a member from holding any other public office or
991 being employed by a public entity, except that a member of the
992 Legislature may not serve on the council.
993 (b) The executive director of the Department of Law
994 Enforcement shall serve as chair of the council, and the
995 director of the Division of Emergency Management shall serve as
996 vice chair of the council. In the absence of the chair, the vice
997 chair shall serve as chair. In the absence of the vice chair,
998 the chair may name any member of the council to perform the
999 duties of the chair if such substitution does not extend beyond
1000 a defined meeting, duty, or period of time.
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1001 (c) Any absent voting member of the council may be
1002 represented by a designee empowered to act on any issue befo re
1003 the council to the same extent that the designating member is
1004 empowered. If a co-chair of a regional domestic security task
1005 force is absent from a council meeting, the co-chair shall
1006 appoint a subcommittee chair of that task force as the designee.
1007 (d) The council shall establish bylaws for its general
1008 governance.
1009 (e) Any member of the council serving by reason of the
1010 office or employment held by the member shall cease to serve on
1011 the council at such time as he or she ceases to hold the office
1012 or employment which was the basis for appointment to the
1013 council.
1014 (f) Representatives from agencies or organizations other
1015 than those designated by title shall be chosen by the entity.
1016 Except for those individuals designated by title, council
1017 members shall be certified annually to the chair by the
1018 organization they represent.
1019 (g) Members of the council or their designees shall serve
1020 without compensation but are entitled to reimbursement for per
1021 diem and travel expenses pursuant to s. 112.061.
1022 (h) The department shall provide the council with the
1023 staff support necessary to assist in the performance of its
1024 duties.
1025 (3) MEETINGS.—The council must meet at least semiannually.
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1026 Additional meetings may be held as necessary. A majority of the
1027 members of the council constitutes a quorum.
1028 (4) EXECUTIVE COMMITTEE.—
1029 (a) The council shall establish an executive committee
1030 consisting of the following members:
1031 1. The executive director of the Department of Law
1032 Enforcement.
1033 2. The director of the Division of Emergency Management.
1034 3. The Attorney General.
1035 4. The Commissioner of Agriculture.
1036 5. The State Surgeon General.
1037 6. The Commissioner of Education.
1038 7. The State Fire Marshal.
1039 (b) The executive director of the Department of Law
1040 Enforcement shall serve as the chair of the executive committee,
1041 and the director of the Division of Emergency Management shall
1042 serve as the vice chair of the executive committee.
1043 (c) The executive committee shall approve all matters
1044 brought before the council prior to consideration. When
1045 expedited action of the council is deemed necessary by the chair
1046 or vice chair, the executive committee may act on behalf of the
1047 council.
1048 (5) DUTIES OF THE COUNCIL.—
1049 (a) The Domestic Security Oversight Council shall serve as
1050 an advisory council to the Governor, the Legislature, and the
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1051 Chief of Domestic Security. The council shall:
1052 1. Review the development, maintenance, and operation of a
1053 comprehensive multidisciplinary domestic security strategy that
1054 will guide the state's prevention, preparedness, protection,
1055 response, and recovery efforts against terrorist attacks and
1056 immigration enforcement incidents and make appropriate
1057 recommendations to ensure the implementation of that strategy.
1058 2. Review the development of integrated funding plans to
1059 support specific projects, goals, and objectives necessary to
1060 the state's domestic security strategy and make appropriate
1061 recommendations to implement those plans.
1062 3. Review and recommend approval of prioritized
1063 recommendations from regional domestic security task forces and
1064 state working groups on the use of available funding to ensure
1065 the use of such funds in a manner that best promotes the goals
1066 of statewide, regional, and local domestic security through
1067 coordinated planning and implementation strategies.
1068 4. Review and recommend approval of statewide policies and
1069 operational protocols that support the domestic security efforts
1070 of the regional domestic security task forces and state
1071 agencies.
1072 5. Review the overall statewide effectiveness of domest ic
1073 security efforts, and counter-terrorism efforts, and efforts of
1074 coordinating with and providing assistance to the Federal
1075 Government in the enforcement of federal immigration laws in
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1076 order to provide suggestions to improve or enhance those
1077 efforts.
1078 6. Review the efforts of any agency or entity involved in
1079 state or local domestic security efforts, and counter-terrorism
1080 efforts, and efforts of coordination with and providing
1081 assistance to the Federal Government in the enforcement of
1082 federal immigration laws that requests assistance or that
1083 appears to need such review in order to provide suggestions to
1084 improve or enhance those efforts.
1085 7. Review efforts within the state to better secure state
1086 and local infrastructure against terrorist attack or immigration
1087 enforcement incidents and make recommendations to enhance the
1088 effectiveness of such efforts.
1089 8. Review and recommend legislative initiatives related to
1090 the state's domestic security and provide endorsement or
1091 recommendations to enhance the effectiveness of such efforts.
1092 9. Review statewide or multiagency mobilizations and
1093 responses to major domestic security incidents and recommend
1094 suggestions for training, improvement of response efforts, or
1095 improvement of coordination or for other strategies that m ay be
1096 derived as necessary from such reviews.
1097 10. Conduct any additional review or inquiry or make
1098 recommendations to the Governor and Legislature in support of
1099 other initiatives, as may be necessary, to fulfill the function
1100 of general oversight of the state's domestic security efforts,
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1101 and counter-terrorism efforts, and efforts of coordinating with
1102 and providing assistance to the Federal Government in the
1103 enforcement of federal immigration laws and to promote increased
1104 security.
1105 11. Promote and preserve intergovernmental cooperation and
1106 consensus among state and local agencies, the Federal
1107 Government, private entities, other states, and other nations,
1108 as appropriate, under the guidance of the Governor.
1109 (b) The Domestic Security Oversight Council shall make an
1110 annual funding recommendation to the Governor and Legislature
1111 which shall prioritize funding requests based on allocations
1112 from all available sources for implementing the state's domestic
1113 security strategy. This recommendation must include the
1114 prioritized recommendations of each of the regional domestic
1115 security task forces and the various working groups that
1116 participate in the prioritization process for funding
1117 allocations. The recommendation must reflect the consideration
1118 of strategic priorities and allocations that best serve the
1119 state's overall domestic security needs. The recommendation
1120 shall be transmitted to the Governor and the Legislature by
1121 December 31 of each year. If additional funds become available,
1122 or reallocation of funding is required beyond current spending
1123 authorizations, the council may make recommendations to the
1124 Governor for consideration by the Legislative Budget Commission.
1125 (6) REPORTS.—The council shall report annually on its
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1126 activities, on or before December 31 of each calendar year, to
1127 the Governor, the President of the Senate, the Speaker of the
1128 House of Representatives, and the chairs of the committees
1129 having principal jurisdiction over domestic security in the
1130 Senate and the House of Representatives.
1131 (7) AGENCY DESIGNATION.—For purposes of this section, the
1132 Domestic Security Oversight Council shall be considered a
1133 criminal justice agency within the definition of s. 119.011(4).
1134 Section 18. Paragraph (g) of subsection (2) and paragraph
1135 (a) of subsection (3) of section 943.325, Florida Statutes, are
1136 amended, and paragraph (f) is added to subsection (7) of that
1137 section, to read:
1138 943.325 DNA database.—
1139 (2) DEFINITIONS.—As used in this section, the term:
1140 (g) "Qualifying offender" means any person, including
1141 juveniles and adults, who is:
1142 1.a. Committed to a county jail;
1143 b. Committed to or under the supervision of the Department
1144 of Corrections, including persons incarcerated in a private
1145 correctional institution operated under contract pursuant to s.
1146 944.105;
1147 c. Committed to or under the supervision of the Department
1148 of Juvenile Justice;
1149 d. Transferred to this state under the Interstate Compact
1150 on Juveniles, part XIII of chapter 985; or
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1151 e. Accepted under Article IV of the Interstate Corrections
1152 Compact, part III of chapter 941; and who is:
1153 2.a. Convicted of any felony offense or attempted felony
1154 offense in this state or of a similar offense in another
1155 jurisdiction;
1156 b. Convicted of a misdemeanor violation of s. 784.048, s.
1157 810.14, s. 847.011, s. 847.013, s. 847.0135, or s. 877.26, or an
1158 offense that was found, pursuant to s. 874.04, to have been
1159 committed for the purpose of benefiting, promoting, or
1160 furthering the interests of a criminal gang as defined in s.
1161 874.03; or
1162 c. Arrested for any felony offense or attempted felony
1163 offense in this state; or
1164 d. In the custody of a law enforcement agency and is
1165 subject to an immigration detainer issued by a federal
1166 immigration agency.
1167 (3) COLLECTION OF SAMPLES.—
1168 (a) Each qualifying offender shall submit a DNA sample at
1169 the time he or she is booked into a jail, correctional facility,
1170 or juvenile facility. A person who becomes a qualifying offender
1171 solely because of the issuance of an immigration detainer by a
1172 federal immigration agency must submit a DNA sample when the law
1173 enforcement agency having custody of the offender receives the
1174 detainer.
1175 (7) COLLECTION OF DNA SAMPLES FROM OFFENDERS.—
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1176 (f) A law enforcement agency having custody of a person
1177 who becomes a qualifying offender solely because of the issuance
1178 of an immigration detainer by a federal immigration agency shall
1179 ensure that a DNA sample is taken from the offender immediately
1180 after the agency receives the detainer and shall secure and
1181 transmit the sample to the department in a timely manner.
1182 Section 19. Paragraph (m) of subsection (3) of section
1183 394.9082, Florida Statutes, is amended to read:
1184 394.9082 Behavioral health managing entities.—
1185 (3) DEPARTMENT DUTIES.—The department shall:
1186 (m) Collect and publish, and update annually, all of the
1187 following information on its website for each managing entity:
1188 1. All compensation earned or awarded, whether paid or
1189 accrued, regardless of contingency, by position, for any
1190 employee, and any other person compensated through a contract
1191 for services whose services include those commonly associated
1192 with a chief executive, chief administrator, or other chief
1193 officer of a business or corporation, who receives compensati on
1194 from state-appropriated funds in excess of 150 percent of the
1195 annual salary paid to the secretary of the department. For
1196 purposes of this paragraph, the term "employee" means a person
1197 filling an authorized and established position who performs
1198 labor or services for a public or private employer in exchange
1199 for salary, wages, or other remuneration has the same meaning as
1200 in s. 448.095(1).
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1201 2. The most recent 3 years of the Return of Organization
1202 Exempt from Income Tax, Internal Revenue Service Form 990 an d
1203 related documents filed with the Internal Revenue Service,
1204 auditor reports, and annual reports for each managing entity or
1205 affiliated entity.
1206 Section 20. Paragraph (a) of subsection (4) of section
1207 409.996, Florida Statutes, is amended to read:
1208 409.996 Duties of the Department of Children and
1209 Families.—The department shall contract for the delivery,
1210 administration, or management of care for children in the child
1211 protection and child welfare system. In doing so, the department
1212 retains responsibility for the quality of contracted services
1213 and programs and shall ensure that, at a minimum, services are
1214 delivered in accordance with applicable federal and state
1215 statutes and regulations and the performance standards and
1216 metrics specified in the strategic plan created under s.
1217 20.19(1).
1218 (4)(a) The department shall collect and publish on its
1219 website, and annually update, all of the following information
1220 for each lead agency under contract with the department:
1221 1. All compensation earned or awarded, whether paid or
1222 accrued, regardless of contingency, by position, for any
1223 employee, and any other person who is compensated through a
1224 contract for services whose services include those commonly
1225 associated with a chief executive, chief administrator, or other
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1226 chief officer of a business or corporation, who receives
1227 compensation from state-appropriated funds in excess of 150
1228 percent of the annual salary paid to the secretary of the
1229 department. For purposes of this paragraph, the term "employee"
1230 means a person filling an authorized and established position
1231 who performs labor or services for a public or private employer
1232 in exchange for salary, wages, or other remuneration has the
1233 same meaning as in s. 448.095.
1234 2. All findings of the review under subsection (3).
1235 Section 21. For the 2023-2024 fiscal year, the
1236 nonrecurring sum of $12 million from the General Revenue Fund is
1237 appropriated to the Division of Emergency Management within the
1238 Executive Office of the Governor for the Unauthorized Alien
1239 Transport Program.
1240
1241 Section 22. Except as otherwise expressly provided in this
1242 act and except for this section, which shall take effect upon
1243 becoming a law, this act shall take effect July 1, 2023.
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