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Florida Legislative Post-Session Report
A View from the Capitol
Dean Mead’s Government Relations, Lobbying and Administrative Law industry team is pleased to provide a summary report of the highlights from the 2015 Florida Legislative Session. Below is a description of passed legislation that may be of interest to your business. “SB” is the abbreviation for Senate Bill; “HB” is the abbreviation for House Bill; and “CS” is the abbreviation for Committee Substitute, which means the bill was amended in committee.
In November 2014, voters reelected Governor Scott who ran on a platform of tax cuts and job creation, and approved Amendment 1 by a landslide to allocate state funds to conservation efforts. These actions by Florida voters foreshadowed the big issues for 2015, which are outlined below. However, no one could have predicted at the start that an impasse in budget negotiations over health care funding would result in a bitter and early end to this year’s Legislative Session, with many other major initiatives caught in the crossfire.
Agriculture and Property Rights
Civil Liability of Farmers: SB 158 passed providing that an existing exemption from civil liability for farmers who gratuitously allow a person to enter upon their land for the purpose of removing farm produce or crops left in the field applies at any time, rather than only after harvesting passed.
Drone Surveillance: CS/CS/SB/766 passed, prohibiting a person, a state agency, or a political subdivision from using a drone to capture an image of privately owned real property or of the owner, tenant, or occupant of such property with the intent to conduct surveillance without his or her written consent if a reasonable expectation of privacy exists. The current exception for law enforcement agency activity is expanded to include activities by any person or entity engaged in a business licensed by the state (such as property appraisers, utilities, aerial mappers, cargo delivery systems) subject to certain conditions. The bill does not have the intent of affecting the use of drones for agricultural operations and provides civil remedies for compensatory and punitive damages and injunctive relief for violations.
Private Property Rights: CS/CS/HB 383 passed amending the Bert Harris Private Property Rights Act to create a cause of action to recover damages for landowners where local and state governmental entities impose conditions that rise to the level of unconstitutional exactions. Plaintiffs will be required to provide pre-suit notice to the governmental entity to allow an opportunity to explain or correct the prohibited exaction without need for further litigation. If the suit is necessary, the governmental entity is required to prove that the exaction complies with the standards set by the U.S. Supreme Court and the property owner must prove damages from the prohibited exaction. The bill clarifies the measure of damages recoverable under the cause of action and provides for injunctive relief, and allows recovery of costs and attorney fees. Governmental entities may recove r attorney fees and costs if they prevail. Impact fees and non-ad valorem assessments are exempt from the bill, and sovereign immunity is waived to the extent of damages assessed under the new cause of action.
Racing Animals—Prohibited Medications: CS/HB 239 passed both chambers and is pending action by the Governor. The bill will bring Florida into compliance with the international standard for racing animals by modifying the current regulation of prohibited medications, drugs, and naturally occurring substances in racing animals—both horses and greyhounds.
Estate Planning and Taxes
Apportionment of Estate Taxes: CS/CS/SB 872 passed this Session to set the order and priority for the payment of estate taxes by updating existing statutes to take into account the IRS Code. The bill also clarifies the factors a court may use in awarding fees in trust and estate litigation; provides a 3-month exception bar for making objections to the validity of a will; clarifies the duties of a personal representative who becomes ineligible to serve; and clarifies existing case law regarding to permit objections after a notice of administration in certain circumstances.
Health Care Surrogates: CS/CS/CS/HB 889 also passed this year, to provide more flexibility and choices for a health care surrogate through more access to patient records in a HIPAA compliant manner and closing a gap in the current law regarding the designation of a health care surrogate for minors by parents and legal guardians.
Guardianship: Several guardianship bills are also poised to become law upon the Governor’s approval this year. CS/CS/CS/HB 5:
- Requires filing of motion in termination or suspension of power of attorney in incapacity or guardianship proceedings;
- Authorizes court to appoint guardian ad litem to protect minor’s interests;
- Provides for confidentiality in settlement of minor’s claim;
- Requires notification of incapacitated person & attorney before appointment of emergency temporary guardian;
- Provides for compensation of examining committee if petition for incapacity is dismissed;
- Provides for appointment of emergency temporary guardian;
- Provides that business entity may act as guardian; and
- Requires reporting of incidents of abuse, neglect, & exploitation of ward by guardian.
Guardianship—Public Records Exemption: CS/HB 7 creates a public records exemption for settlements entered into by a guardian on behalf of a ward; and CS/CS/HB 437 proposes new procedures for the case plan of any child who is developmentally disabled or incapacitated.
Trust Accounts—Electronic Notice: CS/HB 961 also passed to update the Florida Trust Code to authorize a trustee a trustee to post required documents to a secure website or account if a beneficiary opts in to receiving electronic documents through a secure website or account.
Transfers to Minors: HB 283, revising the Uniform Transfers to Minors Act to allow persons to establish accounts for minors to remain in custodial status until the minor reaches age 25, is pending action by the Governor.
Terminal Conditions—Experimental Treatment: Also of interest, CS/CS/HB 269 passed this year to authorize experimental drug treatments for the terminally ill; provide procedures to govern the process; and limit the liability for treating physicians and drug manufacturers.
Construction Defects: Chapter 558, Florida Statutes, provides a method for resolving construction defect disputes before filing a lawsuit. CS/CS/CS/HB 87, which passed the Legislature, provides additional notice requirements under the chapter for construction defects.
Condo Termination: State Legislators and Governor Scott have publicly expressed concern about Florida’s condominium termination process under section 718.117, Florida Statutes, by which investors purchase units in bulk and terminate the condominium form of ownership for conversion to rental property after paying market value to remaining unit owners. In some cases, this has had an adverse impact on unit owners who owe more on their mortgage than the current market value of their units. Legislation to provide more protections for homeowners in the termination process passed this year, CS/CS/CS/HB 643. The legislation imposes new restrictions on the termination of condominiums created by the conversion of existing improvements under Part VI of the Condominium Act; clarifies the methodology for determining market value of condominium units; and requires first mortgages to be fully satisfied prior to termination of the condominium.
Community Associations: CS/CS/HB 791 is this year’s omnibus community association bill. The bill as passed:
- Permits the use of copies, facsimiles or other reliable reproductions of proxies for voting at meetings of the membership as permitted by statute, and it provides that all “written” records maintained by a community association are official association records;
- Permits the use of electronic voting in condominiums, cooperatives and mandatory homeowners associations;
- Permits the posting of meeting notices on “association property,” as well as on the common elements of a condominium, and it clarifies the categories to be used for the condominium association budget
- Extends the sunset of Part VII if the Condominium Act relating to bulk buyers until July 1, 2018; and
- Formally names Chapter 720, F.S., the “Homeowners’ Association Act,” and it expands the definition of “governing documents in a homeowners’ association to include the community’s rules and regulations.
Transient Occupancy: CS/CS/HB 305, as passed, removes “transient occupancy” from the landlord-tenant regulation under Chapter 83, and permits the removal of an unwanted occupant of a residence by law enforcement officials.
Landlord/Tenant: CS/CS/HB 779requiresnotice to be given to a residential tenant after issuance of the certificate of title in a foreclosure. The notice provides a 30-day termination period before the rental agreement can be terminated and possession of the property given to the new title owner. It passed the Legislature and is pending action by the Governor.
Mobile Homes: CS/CS/HB 307 passed to revise the Mobile Home Act to provide education programs for association directors; provide revised procedures to govern rental increases and lifetime leases; and it revises operational procedures governing mobile homeowners associations.
Timeshares: CS/CS/HB 453 also passed this year. It revises requirements for amendments to timeshare instruments; public offering statements; the relationship between the owners’ association and the managing entity; and the provisions relating to relating to reservation systems and multisite timeshare plans.
The Legislature concluded the 2015 Regular Session without agreeing to a budget, leaving related tax issues unresolved as well. Tax cuts are a high priority for Governor Scott. The House passed a large tax package that included items such as the Governor’s priority of reducing communications services taxes and a sales-tax exemption for certain farm equipment.
Because of the irreconcilable differences between the chambers on health care funding, the fate of tax legislation remains uncertain until the Legislature reconvenes in June to adopt a budget.
Ad Valorem Tax Exemptions for Military Housing: One tax exemption did manage to make its way through the Legislature. HB 361 creating an ad valorem tax exemption for military housing and facilities passed both chambers.
Seminole Compact and Gaming
The Compact, signed in 2010, is a 20-year revenue-sharing agreement between the state and the Seminole Tribe of Florida to allow gaming on Seminole land. It contains a provision for the operation of table games, such as blackjack, which is set to expire at the end of July, 2015. There was legislation filed to extend the 5-year provision that did not pass and it is unknown if it will be considered in the Special Session.
Miscellaneous Business Issues
Discrimination—Pregnancy: SB 982 prohibits discrimination on the basis of pregnancy for employment, labor organizations, joint labor-management committees, and employment agencies, and in occupational licensing, certification, and membership organizations, and it makes such discrimination unlawful under the Florida Civil Rights Act. SB 982 has passed the Legislature and is pending action by the Governor.
Service Animals: CS/HB 71 passed aligning Florida law related to service animals with the American with Disabilities Act and the Fair Housing Act to require public accommodations and timeshares to modify policies to accommodate the use of service animals by individuals with disabilities. The legislation specifies the conditions where a service animal may be removed or excluded, and it provides for penalties for the misrepresentation of the use of a service animal. In addition to the criminal penalties in current law, the bill requires a business unlawfully denying or interfering with an individual’s right to use or train a service animal to perform 30 hours of community service with an organization that serves individuals with disabilities.
Public Lodging—Age Restrictions: CS/CS/HB 277 requires public lodging establishments to waive any age restriction policies for occupancy when an individual presents a valid military ID. CS/CS/HB 277 has passed the Legislature and is pending action by the Governor.
Water Policy and Amendment 1
As the 2015 Legislative Session began, it seemed that the passage of major statewide water policy was a foregone conclusion. The of the Speaker of the House, Steve Crisafulli (R-Merritt Island) and Senate President Andy Gardiner (R-Orlando) even jointly stated their intent to work together on achieving a number of common priorities. The joint priorities included “sustainable statewide funding and policy strategy for water and natural resources, while implementing Amendment 1,” which was overwhelmingly approved by voters in November, with 75 percent support statewide. The harmonious tone between the chambers changed dramatically by the end of the Session, with the House adjourning three days early citing an inability to come to an agreement with the Senate on the budget. There is currently no announcement for what will be included on the limited agenda for the Special Session tentatively scheduled for Ju ne 1-20. Although it’s still possible that water policy could be revived when the Legislature reconvenes this summer, the most likely scenario is that it will have to wait until next year.
Amendment 1 Implementation: A series of bills to create trust funds as repositories for Amendment 1 funding and a bill that directs 33% of documentary stamp tax collections to the Land Acquisition Trust Fund for the implementation of the amendment. These measures are budget-related, and the bills are still pending, leaving the provisions subject to change as the Legislature contemplates the final provision of the annual budget in June.
Water Policy: CS/HB 7003 provided increased emphasis on public-private partnerships with landowners to incentivize conservation efforts, springs protection, and streamlining of the state’s duplicative or conflicting regulatory schemes. It was the first bill passed by the House this year but the Senate did not take it up until the last week of Session, after the House had adjourned.
The Senate version, CS/SB 918, mandated a new database of conservation lands and a consolidated annual report on water quality and quantity; included the creation of a Florida Shared Use Non-Motorized Trail Network; a 5-year planning process for water resource projects to be funded with state funds; and established the Florida Water Resources Advisory Council to rank and recommend water projects for funding. Late in the Session, the House took up another bill, HB 653, and amended portions of CS/SB 918 onto that bill, excluding the Advisory Council language, among other provisions.
Neither bill passed and it has not been announced whether water policy will be considered during the Special Session in June.
Growth Management: CS/CS/SB 1216 passed this year. Its provisions cover a number of areas, including:
- Mitigation of sinkhole damages; designation of 10 regional planning councils (RPCs) and their borders along with the dissolution of the Withlacoochee RPC, which is incorporated into existing councils;
- A requirement that certain new projects to through the State Coordinated Review Process; naming Pasco County as a pilot community for connected-city plan amendments;
- Clarification that the planning standards of the sector planning statute supersede generally applicable standards found elsewhere in ch. 163, F.S., and provides more flexibility in the designation of conservation easements related to sector plans; and
- Authorization for a water management district to issue a longer consumptive use permit for certain projects.
Legislation of Interest That Did Not Pass
Digital Assets: CS/CS/SB 102 and CS/HB 313 are companion bills containing the Section’s initiative relating to digital assets. The legislation basically creates the “Florida Fiduciary Access to Digital Assets Act” based upon the Uniform Act. CS/CS/SB 102 was pending on the Senate Calendar and HB 313 was pending in committee when the Legislature adjourned.
Family Trust Companies: CS/SB 56 and CS/HB 825 are companion bills containing the initiative to complete the authorizing legislation for the creation and regulation of family trust companies in Florida. CS/SB 568 and CS/HB 825 were pending on the House Special Order Calendar when the Legislature adjourned.
Estoppel Letters—Residential Properties: CS/CS/HB 611 by Representative Wood and are companion bills that revise the process for providing estoppel certificates under Chapters 718 and 720, providing for the response time and duration of the estoppel and designating the amount of the fee that can be charged. CS/CS/HB 611 and CS/CS/SB 736 were pending on the House Special Order Calendar when the Legislature adjourned.
Notaries: SB 436 and HB 663 are companion bills that amend Chapter 117 and require notaries to maintain a notarial journal with a record of certain acts completed by the notary. Both bills died in committee when the Legislature adjourned.
Department of Agriculture and Consumer Services: CS/HB 7015 and SB 1050 were the Department’s annual omnibus bills. The bills remove provisions requiring the department to give certain priority consideration when evaluating applications for funding of agriculture education and promotion facilities; authorizes the department to secure letters of patent, copyrights, and trademarks on work products and to engage in acts accordingly; and authorize the Commissioner of Agriculture to create an Office of Agriculture Technology Services.
Cattle Market Development Act: HB 917 and CS/SB 122 rename the current Beef Council as the Florida Cattle Enhancement Board; it revises the funding for Board activities; provides for staggered terms for board members; and repeal the sunset of the Board. The House bill passed but was not taken up in Senate messages.
Public Records/Public Agency Contracts: CS/CS/SB 224 and CS/CS/CS/HB 163 address public records requests made to entities contracting with public agencies. The bills define the term “acting on behalf of a public agency”; requires that a public agency contract for services include a statement providing the name and telephone number of the public agency’s custodian of records; and specify circumstances under which a court may assess and award reasonable costs of enforcement against a public agency or contractor. The bill was amended and passed between the chambers but was not taken up in Senate returning messages.
Farm Buildings—Fire Safety: SB 1148 and CS/CS/HB 1025 will exempt nonresidential farm buildings from the Florida Fire Prevention Code. The House bill has passed the full House but was not taken up in the Senate.
Agritourism: CS/SB 594 and CS/HB 569 prohibit local governments from enforcing ordinances, regulations, rules, or policies that prohibit, restrict, regulate, or otherwise limit agritourism activities on land classified as agricultural land. The House bill passed the full House but was not taken up in the Senate.
Land Application of Septage: CS/SB 648 and CS/HB 687 remove the future prohibition against the land application of septage from onsite treatment and disposal systems. CS/HB 687 died in Senate messages, with the Senate bill still pending in committee.